On February 7, 2023 Local 3599 and five individual members sued the City of New York, DEP and Zoe Ann Campbell, asserting claims under the U.S. Constitution for a denial of Constitutional rights based on the City’s refusal to process personnel actions in a timely manner, leaving members working in promotional titles without getting paid the proper contractual rate.
The allegations included the following:
Defendants without exception have failed and refused to process the necessary paperwork so that the Individual Plaintiffs would receive the promised rate of pay for their new position at the time that the Individual Plaintiffs are appointed to the position.
Defendants purposefully and intentionally appointed the Individual Plaintiffs to the positions knowing that the Defendants would not pay the Individual Plaintiffs the promised for rate of pay and yet would secure the mission critical services necessary in the positions filled.
The lawsuit gave examples of the City processing paperwork in a timely fashion for non-Union members, including the 39 individuals hired for the Rondout-West Branch Tunnel project. The lawsuit gave the example that once the City realized one of the 39 was a Union member, it retracted the offer to the Union member. The Union member was then, two months later, placed in the same position but this time without the promotional pay.
The City made a motion to dismiss the lawsuit claiming that all of this should be resolved through the grievance and arbitration process and that there are/were no violations of the Constitution.
On March 6, 2024, the U.S. District Court Judge (Hon. Jessica Clarke) denied the motion to dismiss in its most relevant part in a big victory for the Union. The Decision is precedent setting and will have application for decades in securing municipal Union rights to protections under the U.S. Constitution.
Most notably, the decision finds as follows.
(1) The Union is not required to exhaust the grievance and arbitration procedure before bringing the lawsuit. The Court held: “[T]here is no clear and unmistakable waiver of Plaintiffs’ rights to pursue their claims here where Plaintiffs’ claim is not that Defendants violated the CBA—it is that they discriminated against them on the basis of Union membership, and the CBA does not specify that such claims are subject to its grievance procedure.”
(2) The Union and the Individual Plaintiffs were not required to bring the action as an Article 78 and could proceed, as they did, straight to federal court.
(3) This is a big one – the Court held that in this lawsuit “the CBA and New York state law establish a constitutionally protected property interest for Individual Plaintiffs, public employees, to be paid their proper salaries in a timely manner . . . Thus, the Court finds that Individual Plaintiffs have a protectable property interest in the salary that they have earned from the City under the CBA.”
(4) A delay of more than two months in receiving your correct pay is an unconstitutional delay, especially since “Defendants have articulated no explanation whatsoever attempting to justify their delay.”
(5) This is another big one -- being a public sector Union member is protected activity under the First Amendment of the US Constitution, and by refusing to pay the proper rate because the City was waiting on the grievance and arbitration process for out-of-title work makes out a claim for retaliation under the First Amendment.
(6) Local 3599 was a proper party to the lawsuit because it has “associational standing” under the US Constitution. The Court noted that “associational standing – where the organization brings suit only as a representative of its members – does not require the organization to have itself suffered any injury” and that Local 3599 has standing to represent and speak on behalf of its members.
As is evident this case – forever known as Local 3599 vs. City of New York will stand as strong precedent for municipal unions to bring constitutional claims on behalf of their members.
In the meantime, the Union and the City worked out resolution of all of the individual claims and everyone has been brought up to their proper pay rate with back pay. Because things have been made right, the Union asked counsel to settle the case by making sure the City pays back the Union for all of its attorneys fees and costs spent in bringing and settling the lawsuit.
In sum, Local 3599 made great new law for municipal labor unions, its members have been made whole, and the City was forced to pay the Union every penny of its attorneys fees and costs incurred in the process.
