Joseph v MTA Bridges & Tunnels
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Joseph v MTA Bridges & Tunnels 2012 NY Slip Op 32831(U) November 27, 2012 Sup Ct, New York County Docket Number: 104186/12 Judge: Peter H. Moulton Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK uL70du PRESENT: COUNTY PART qo6 Justice -v- s/ MOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to were read on this motion tolfor I, PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits c. . No Yes Cross-Motion: u "* .* Upon the foregoing papers, it is ordered that this m&a+ ph?+ \", e^% Dated: J.S.C. Check one: &FINAL Check if appropriate: DISPOSITION 0 DO NOT POST 0 SUBMIT ORDER/ JUDG. NON-FINAL DISPOSITION 0 REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] STATE OF NEW YORK PART 4 0 B : : SUPREME COURT COUNTY OF NEW YORK _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ WAYNE JOSEPH, AS PRESIDENT OF THE BRIDGE AND TUNNEL OFFICERS BENEVOLENT ASSOCIATION, and t h e BRIDGE AND TUNNEL OFFICERS BENEVOLENT ASSOCIATION X Index No. 104186/12 : Petitioners, Pursuant to Article 75 of the Civil Respondent. _ _ _ _ _ f _ l _ _ _ _ _ _ l - l - - - -x - Moulton, J. : represents a 1 1 Bridge a n d Tunnel Officers employed by respondent ("TBTA") , and Wayne Joseph, the u n i o n ' s president. Petitioners seek a preliminary injunction barring respondent from transferring any BTOBA members from their j o b s at the Henry Hudson Bridge to pursuant to the parties' collective bargaining agreement, The TBTA cross-moves to dismiss. Hudson B r i d g e seek to permissively intervene on t h e basis that a n y preliminary injunction w i l l adversely affect their members' work assignments. A t oral argument on the motions, respondent consented [* 3] to the intervention motions. Petitioners have submitted papers in opposition to the proposed interveners motions. BACKGROUND The TBTA is a public authority and a subsidiary of the Metropolitan Transit Authority, The TBTA is responsible for maintaining the bridges, tunnels, and toll plazas located in New Y o r k City, TBTA an BTOBA are parties to a collective bargaining agreement that expired on May 17, 2 0 0 9 . The parties are currently in negotiations concerning a new collective bargaining agreement. The instant dispute arises from the TBTA s decision to transfer all Bridge a n d Tunnel Officers at the Henry Hudson Bridge to other assignments. The transfer arises from the TBTA s decision to implement a system of totally automated electronic tolling at the bridge. BTOBA has filed a grievance over the transfer, claiming it is barred by the parties collective bargaining agreement, which the union avers remains in effect until the finalization of a new collective bargaining agreement. binding arbitration. The grievance will be heard in BTOBA a s s e r t s , inter alia, that as a result of the transfer exclusive bargaining unit work of its members is being allocated to non-BTOBA employees. assignments that it claims will employees with a now be BTOBA points to f o u r performed either by Civil Service position of 2 Sergeant, or by [* 4] Were ever exclusively assigned to BTOBA's members. BTOBA b r o u g h t this proceeding on by order to show cause, seeking a temporary restraining order blocking the transfer of its members from t h e Henry Hudson Bridge pending the resolution of the parties' arbitration. The court declined to sign the temporary restraining order and scheduled the motion f o r a preliminary injunction for oral argument. Two proposed interveners moved respondents prior to o r a l argument. Triborough Bridge and Tunnel to intervene as The first of these, The Superior Officers Benevolent Association ("SOBA") is a union that represents a 1 1 sergeants and lieutenants employed by the TBTA. The second proposed intervener is District Council 37, AFSCME, AFL-CIO and i t s affiliated l o c a l 1931 ("DC 3 7 " ) , which represents employees at the Henry Hudson Bridge (and at o t h e r TBTA facilities) with t h e title "maintainer." Maintainers provide certain towing and snow removal duties at TBTA facilities. < DISCUSSION A . The Intervention Motions Both proposed interveners seek to j o i n this lawsuit to be heard in opposition to petitioners' request for a preliminary injunction. it Neither claims that 3 should be allowed to [* 5] Participate in the arbitration, as the arbitration arises solely from the collective bargaining agreement between TBTA and BTOBA. However, proposed interveners argue that their own members' work assignments will be disrupted by any reversal of the move of BTOBA'S members from the Henry Hudson Bridge. They also argue that this dispute is properly brought before the Public Employees - Relations Board ("PERB") an argument that is n o t raised by the TBTA in its opposition to petitioners' motion. Both the proposed interveners have alleged sufficient facts to demonstrate that they have defenses that relate to the petitiqners' request for relief. They have demonstrated that they have an interest in the outcome of petitioners' application for a preliminary injunction. As labor unions, they may not have the Same interests as management ( T B T A ) , although they are aligned in opposition to the proposed preliminary injunction. Petitioners have offered no colorable claim that the intervention will delay this proceeding or prejudice petitioners in any way. see Berkoski v Board of Trustees of Incorporated Villase of SouthamDton, 67 AD3d 840.) Of (CPLR 1013; Accordingly, the intervention motions SOBA and DC 37 are granted and both parties shall be denominated as respondents. 4 [* 6] B. Motion f o r a Preliminarv Injunction CPLR 7 5 0 2 ( a ) provides in relevant part: The supreme court in the county in which an arbitration is pending . " . may entertain an application f o r * . . a preliminary injunction in connection with an arbitration that is pending . . only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief. In addition to this showing, a party seeking a preliminary injunction must also ,demonstrate the standard three elements required for a preliminary injunction by CPLR Article 63. (a Erber v Catalvst Tradina, LLC, 303 A D 2 d 165.) Accordingly, petitioners must also demonstrate a probability of success on the merits, danger of irreparable injury in the absence of a preliminary injunction, and a balance of the equities in their favor. (Aetna Ins. Co. v CaDasso, 75 NY2d 860; CPLR 6312.) Petitioners are unable to carry this burden. First, they have failed to show that any arbitral award in their favor would be "rendered ineffectual" without provisional relief. (CPLR 7502 [cl . ) Second they fail to make the related showing that they will suffer irreparable harm in the absence of a preliminary injunction. BTOBA ddes not clearly articulate how any award would be rendered ineffectual in the absence of a preliminary injunction. If it prevails at arbitration BTOBA members c a n be reinstated to their positions at the Henry Hudson Bridge, and any l o s t overtime wages 5 [* 7] or seniority can be restored. tremedies available to There are a variety of effective petitioners if they prevail at the arbitration. Petitioners also fail. to demonstrate irreparable harm, BTOBA states that its members will suffer irreparable harm from the interruption of their regular w o r k schedules, and possible loss of overtime and seniority, A s noted above, any lost overtime and 4 seniority can be reinstated if petitioners prevail in the arbitration. The inconvenience to petitioner s members schedules, though no doubt real, would be temporary, lasting only a matter of months, if petitioners prevail at arbitration. Courts have found that adverse employment action up to termination does not amount to irreparable harm. (E.u. Abramo v HealthNow NY, 305 AD2d 1009.) Petitioners claim that the union itself will suffer irreparable harm in that TBTA s decision to transfer members in the midst of negotiations for a new collective bargaining agreement will cause the union to lose respect and authority with members, This conclusory assertion does not establish irreparable harm. The union is fighting the transfer. If it prevails at arbitration, it appears j u s t as plausible that BTOBA s reputation will be enhanced. Overstreet v El Paso D i s p o s a l ( 6 2 5 F3d 8 4 4 ) , the primary case cited by petitioners in support of their irreparable harm argument, presents a completely different set of facts than the case at bar. The union in Overstreet had only recently been certified when the 6 [* 8] employer in that case engaged in a scorched earth campaign of unfair labor practices. The court found in that case that the employer's bad faith behavior had caused some members of the union to sign a petition stating that they no longer wished to be represented by the union. In that case the union had demonstrated actual harm to its reputation caused by the illegitimate acts of the employer. There is no s u c h showing in the case at bar. petit,ion is denied and this proceeding is dismissed. DATE : November 27, 20 2 J.S.C.
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