SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

In the Matter of the Application of

STATE OF NEW YORK - UNIFIED COURT SYSTEM,VERIFIED CROSS-PETITION

Petitioner, TO COMPEL ARBITRATION

- against -

Index No. 451124/2016NEW YORK STATE COURT CLERKS ASSOCIATION,

Respondent.

For an Order and Judgment Compelling ArbitrationPursuant to CPLR 7503.

TO THE SUPREME COURT OF THE STATE OF NEW YORK:

The Cross-Petition of the Respondent New York State Court Clerks Association, by and

through its attorneys, Pitta & Giblin LLP, alleges as follows:

INTRODUCTION

1. This is a cross-petition brought by the New York State Court Clerks Association

(“Union” or “Respondent”) to compel arbitration with the State of New York — Unified Court

System (“Petitioner”) with respect to Matter of the Grievance of Grace Machuca (Labor

Relations File No. 16/06) (“Grievance”) pursuant to CPLR § 7503(a) and in opposition to the

Verified Petition filed by the Petitioner on August 5, 2016 (“Petition”).

PARTIES

2. At all times relevant herein, the Respondent was, and still is, a public sector labor

organization organized and existing under the laws of the State of New York.

{00625182.DOCX / }

FILED: NEW YORK COUNTY CLERK 10/13/2016 06:58 PM INDEX NO. 451124/2016

NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/13/2016

1 of 14

3. The Respondent is the duly certified and recognized sole and exclusive bargaining

representative for all employees in the court clerk title employed by the Petitioner within the City

of New York.

4. The Union’s principal place of business is 170 Duane St., New York, NY 10013.

5. The Civil Service Employee Association, Local 1000, AFSCME, AFL-CIO

(“CSEA”), is the duly certified and recognized sole and exclusive bargaining representative for

all employees in the State Judiciary Negotiating Unit employed by the Petitioner within the City

of New York.

6. At all times relevant herein, the Petitioner was and is the duly established Court

System of the State of New York pursuant to Article 6, section 1 of the New York State

Constitution.

7. The Petitioner is located at 25 Beaver St., 1st Floor, New York, NY 10004.

8. At all times relevant herein, the Petitioner was and is the employer of employees

employed in the following Civil Service titles: Senior Court Clerk (JG-21); Management Analyst

(JG-25); and Court Clerk Specialist (JG-30).

9. Grace Machuca is a Court Clerk Specialist (JG-30) assigned to the New York

City Surrogate’s Court, Kings County (“Machuca”). Machua’ s Affidavit attached hereto and

made a part hereof (“Affidavit”). See Aff., ¶ 7.’

JURISDICTION AND VENUE

10. The Court has jurisdiction over this proceeding pursuant to CPLR § 7501, ~çq.

11. Venue herein is based on CPLR § 7502 because the Respondent maintains its

principal place of business in New York County.

‘The paragraphs from the Machuca Affidavit will be cited throughout this Cross-Petition as “(Aff., ¶)“ withreferences to the paragraph number of the Affidavit.

{00625 ~ 82.DOCX / } (006251 82.DOCX / }2

2 of 14

BACKGROUND

12. The Petitioner and the Respondent have been parties to successive collective

bargaining agreements (CBA) which cover terms and conditions of employment for all

employees in the court clerk title employed by the Petitioner within the City of New York.

Aff.,~2.

13. The most recent CBA covered the period April 1, 2007 through March 31, 201 1

(“CBA”). The terms and conditions of the CBA remain in full force and effect during

negotiations for a successor agreement. See Aff., Exhibit B. See § 209-a(1)(e) of the Public

Employees’ Fair Employment Act, §200 — 214 et ~ççj. (commonly referred to as the Civil

Service Law and/or the Taylor Law).

14. The Petitioner and CSEA are parties to a bargaining agreement that covers terms

and conditions of employment for all employees in the State Judiciary Negotiating Unit for the

period April 1, 2011 through March 31, 2017 (“CSEA Agreement”).

15.. From 1989 to January 2010, Machuca worked as a Senior Court Clerk (JG-21)

and was covered by the CBA. See Aff., ¶ 2.

16. On or about January 7, 2010, Machuca promoted from a Senior Court Clerk (JG

21) to a Management Analyst (JG-25) and was covered by the CSEA Agreement. See Aff., ¶ 3.

17. Upon promoting to a Management Analyst (JG-25), Machuca was entitled to and

in fact received a post-promotion salary of $84,251.00. See Aff., ¶ 4 and Exhibit E.

18. The Petitioner calculated Machuca’ s post-promotion salary in accordance with the

CSEA Agreement and N.Y.S. Judiciary Law § 37 (5). This resulted in Machuca receiving an

annual salary of $84,251.00. See Aff., ¶ 4 and Exhibits D and F.

~ Annual Salary Description

(00625182.DOCX/ }{00625182.DOCX / }3

3 of 14

$80,987.00 Senior Court Clerk (JG-21) salary from the 2’~’ Longevity Stepof the NYSCCA April 1, 2009 Salary Schedule2

+ $3,264.00 Management Analyst (JG-25) promotional increment from theCSEA April 1, 2009 Salary Schedule

$84,251.00 Total

19. NY JUD § 37 (5) sets forth the method for calculating the salary of an employee

who is “appointed or promoted to a position in a higher grade.” (Emphasis ours). Specifically,

the statute provides as follows:

[h]e shall receive an increase in salary ... which is equivalent to the fullincrement payable in the position to which he is appointed or promoted, orhe shall be paid the minimum salary of the grade of the position to whichhe is appointed or promoted, whichever results in a higher annual salary.

20. From on or about January 7, 2010 through April 8, 2015, Machuca was a

Management Analyst (JG-21) covered by the CSEA Agreement. During this period, the

Petitioner and CSEA negotiated a successor bargaining agreement that included, among other

things, 2% wage increases on October 1, 2014 and April 1, 2015 for all CSEA bargaining unit

members (including Machuca). See Aff., ¶ 5 and Exhibit G.

21. Before receiving both 2% wage increases, Machuca was entitled to and received

from Petitioner an annual salary of $96,050.00. See Aff., ¶ 6.

22. After applying the 2% wage increases due on October 1, 2014 and April 1, 2015,

Machuca was entitled to but did not receive a post-raise salary of $99,930.42. (Emphasis ours).

See Aff., ¶ 6 and Exhibit H.

Check Payroll 2% Increase Annual Salary Description ~Date Date

9/11 — 9/24/14 N/A $96,050.00 Before 10/1/14 Wage Increase of 2%

- - +$1,921.00 2%of$96,050.OOis$1,92l.00

2 A Salary Schedule is a table located in the back of the CBA and the CSEA Agreement that lists the salaries for

each employee’s grade based on the number of years of service that the employee has worked in that grade. See 22NYCRR § 107.22.

{00625182.DOCX/ }{00625182.DOCX/ }4

4 of 14

10/9 — 10/22/14 10/2/14 $97,971.00 After 10/1/14 Wage Increase of 2%

3/12 — 3/25/15 N/A $97,971.00 Salary Effective 10/2/14 before 4/1/15Wage Increase of 2%

- - + $1,959.42 2% of $97,971.00 is $1,959.42

4/9 — 4/22/15 4/1/15 $99,930.42 After 4/1/15 Wage Increase of 2%

23. On April 9, 2015, the Petitioner promoted Machuca from a Management Analyst

position (JG-25) to a Court Clerk Specialist (JG-30) and she returned to the Respondent’s

bargaining unit. See Aff., ¶ 7.

24. Machuca was entitled to but did not receive a post-promotion salary of

$104,004.42 pursuant to section 16.1 of the CBA and NY JUD § 37 (5). (Emphasis ours).

25. Section 16.1 of the CBA clearly provides that the Petitioner cannot “diminish or

impair any benefit or privilege provided by law,” including, but not limited to NY JUD § 37 (5).

See Aff., ¶ 8 and Exhibit B.

Annual Salary Description$99,930.42 Management Analyst (JG-25) pre-promotion salary effective

4/2/15 (including 2% wage increases on 10/1/14 and 4/1/15)+ $4,074.00 Court Clerk Specialist (JG-30) promotional increment from the

NYSCCA April 1, 2010 Salary Schedule (“NYSCCA 2010Schedule”)

$104,004.42 Total

26. The Petitioner unlawfully withheld monies and retirement contributions owed to

Machuca because it paid her a post-promotion salary of only $100,124.00. See Aff., ¶ 11 and

Exhibit L.

Annual Salary Description$96,050.00 Machuca’s pre-promotion salary as a Management Analyst

(JG-25) effective 4/2/15 was $99,930.42 (including the 2%wage increases on 10/1/14 and 4/1/15), however, Petitionerchanged Machuca’s salary to $96,050.00 (the salary of a JG-25

~__________________ at the 2’~’ Longevity Step from the NYSCCA 2010 Schedule)+ $4,074.00 Court Clerk Specialist (JG-30) promotional increment from the

NYSCCA 2010 Schedule

{00625182.DOCX / }{00625182.D0CX / }5

5 of 14

$100,124.00 Total

A. The Petitioner Unlawfully and Wrongfully Withheld Monies and RetirementContributions Owed to Certain Employees in violation of Section 16.1 of theCBA and N.Y.S. Judiciary Law ~ 37

27. In or around November 2015, the Petitioner conducted a complete payroll audit

after it learned that it miscalculated the salaries of certain employees who promoted or

reassigned from one bargaining unit to a different bargaining unit (including Machuca)

(“Employees”), i.e., from CSEA to NYSCCA. Aff., ¶ 10.

28. Because of the audit, the Petitioner identified 64 Employees (including Machuca)

whose salaries it incorrectly calculated. See Aff., ¶ 10 and Exhibit J.

29. By letter dated February 9, 2016, the Petitioner notified Machuca that it allegedly

overpaid her because of its miscalculations. The Petitioner then reduced Machuca’s salary from

$102,045 to $100,124 effective March 9, 2016. See Aff., ¶~J 10-11 and Exhibits J and L and the

chart in ¶ 26 above.

30. In response to the February 9, 2016 letter, Machuca e-mailed Lauren DeSole, the

Petitioner’s Acting Director of Labor Relations (“DeSole”) to review the method by which the

Petitioner calculated Machuca’s post-promotion salary. See Aff., ¶ 12 and Exhibit K.

31. On February 19, 2016, DeSole responded to Machuca and explained that the “first

step is [to] move [Machuca’s] JG25 CSEA settled salary from the Max on the 2015 Chart to the

Max on the 2010 Chart. Then apply the JG3O promotional increment off the [NYSCCA] 2010

Chart.” Id. In other words, the Petitioner first changed $99,930.42 (Machuca’s Management

Analyst (JG-25) pre-promotion salary from the 2~1c~ Longevity Step of the CSEA April 1, 2015

Salary Schedule) to $96,050.00 (the NYSCCA - JG-25 salary from the NYSCCA 2010

{00625182.DOCX/ }{00625182.DOCX/ }6

6 of 14

Schedule) See Exhibit I. Then, the Petitioner added $4,074.00 (the Court Clerk Specialist (JG

30) promotional increment from the NYSCCA 2010 Schedule) to $96,050.00 resulting in a post-

promotion salary of $100,124.00. SeeAff., ¶ 13.

32. The Petitioner determined that NY JUD § 37 (1)(b)(2) applied to calculate the

salaries of the 64 employees (including Machuca) impacted by the Petitioner’s salary

miscalculations. See Petition, ¶~J 24 — 27.

33. The Petitioner conceded in its Petition that it applied NY JUD § 37 (1)(b)(2) to

recalculate Machuca’s salary. Id.

34. NY JUD § 37 (1)(b)(2) applies when calculating the salary of an employee “who

moves to another position allocated to the same salary grade...” (Emphasis ours).

35. The Petitioner applied NY JUD § 37 (1)(b)(2) to recalculate Machuca’s salary,

however, Machuca did not move to another position allocated to the same salary grade.

36. Machuca promoted to a higher-grade position, i.e., from a JG-25 to a JG-30,

which requires the application of NY JUD § 37 (5) and section 16.1 of the CBA. In other words,

Machuca “moved to another position allocated” to a different “salary grade.” Id.

37. The Petitioner deviated from its past practice by applying NY JUD § 37 (1)(b)(2)

to calculate Machuca’s post-promotion salary because, as required by law, it applied NY JUD §

37 (5) to calculate Machuca’s 2010 salary when she promoted to a higher-grade position, i.e.,

from a Senior Court Clerk position (JG-21) to a Management Analyst position (JG-25). See

Aff., ¶~J 4, 14 and Exhibits C and E.

B. The Underlying Grievance

38. In response to the Petitioner’s flagrant departure from past practice, on or about

March 24, 2016, the Union timely filed the Step 1 contract Grievance. The Grievance alleged

{00625182.DOCX/ }{00625182.DOCX/ }7

7 of 14

that the Petitioner violated the CBA, including, but not limited to Articles 1.1 and 16.1, and

sought to have Petitioner cure its violation by recalculating the impacted employees’ salaries in

accordance with the requirements of section 16.1 of the Agreement and NY JUD § 37 (5). See

Aff., ¶ 18 and Exhibit A.

39. On or about April 11, 2016, Maritza Camacho Colon, on behalf of Hon. Fern

Fisher, denied the Step 1 Grievance. On or about April 14, 2016, the Union timely appealed the

Grievance denial to Step 2 of the parties’ grievance procedure. See Aff., ¶~J 19, 20 and Exhibits

O and P, respectively.

40. On or about June 30, 2016, Carolyn Grimaldi, Principal Labor Relations Attorney

on behalf of DeSole, denied the Grievance at Step 2. See Aff., ¶ 21 and Exhibit Q.

41. On or about July 15, 2016, the Respondent timely filed a demand for arbitration

as the third and final step of the grievance procedure. See Aff., ¶ 22 and Exhibit R.

42. Notwithstanding Machuca’s entitlement to an annual salary of $104,004.42 for

the period April 9, 2015 through March 31, 2016, the Petitioner initiated this CPLR Article 75

petition seeking to permanently stay arbitration on the ground that the CBA does not authorize

arbitration of the Grievance.

C. Applicable Provisions of the CBA

43. Section 1.1 of the CBA requires the Petitioner to recognize the Union as the

exclusive bargaining representative with respect to “salaries, wages, hours and other terms and

conditions of employment for full-time and part-time employees in the Unified Court System

within the City of New York whose job title is set forth in Appendix A.” Machuca’s title, Court

Clerk Specialist (JG-30) is included in Appendix A. See Aff., Exhibit B.

{00625182.DOCX/ }{00625182.DOCX 1)8

8 of 14

44. Section 15.1 of the CBA defines a contract grievance as “a dispute concerning the

interpretation, application or claimed violation of a specific term or provision of this

Agreement.” Id.

45. In the event the Union “appeals a Step 2 decision to Step 3 and the parties cannot

agree as to whether it constitutes an arbitrable grievance,” section 15.7 of the CBA requires that

the “issue of arbitrability shall be preliminarily submitted to arbitration.” Id. (Emphasis

ours).

46. Section 13.5 of the CBA requires the Petitioner to pay an employee who is

promoted “from a position covered by ~ Agreement to a higher-graded position which is also

covered by this Agreement ... the basic annual salary ... provided by section 37 of the Judiciary

Law.” 1. (Emphasis ours).

47. Section 13.5 of the CBA does not apply to Machuca because she promoted from a

Management Analyst (JG-25), a position covered by the CSEA Agreement. Id. See Aff., ¶ 7.

48. With respect to matters not covered by the CBA, section 16.1 prohibits the

Petitioner from “diminish[ing] or impair[ing] ... any benefit or privilege provided by law, rule

or regulation for employees without adequate prior notice to the Union, and, when appropriate,

without negotiate[ing] with the Union ...“ Id. (Emphasis ours).

49. Read together, sections 13.5 and 16.1 of the CBA prohibit the Petitioner from

diminishing or impairing the benefits and privileges provided by NY JUD § 37 (5), which

entitles Machuca and the Employees to receive their entitled-to wages and retirement

contributions that the Petitioner is unlawfully withholding. Id.

50. The Petitioner is aware of this privilege because it applied section 18 of the CSEA

Agreement (the language of section 18 of the CSEA Agreement is identical to section 16 of the

{00625182.DOCX / }{00625182.DOCX/ }9

9 of 14

CBA) and NY JUD § 37 (5) to calculate Machuca’s then-salary when she promoted from a

Senior Court Clerk (JG-21) to a Management Analyst (JG-25) in 2010. See Aff., ¶ 4 and Exhibit

E (emphasis added).

51. The arbitration clause in the CBA is broad, covering all issues arising out of the

interpretation and application of the CBA, and encompasses the Union’s Grievance that the

Petitioner is violating the Agreement and NY JUD § 37 (5) through its failure and refusal to

return the monies and retirement contributions unlawfully withheld from Machuca and the

Employees.

D. The Effect of the Petitioner’s Failure to Calculate Machuca’s Salary inAccordance with the CBA and Law

52. The Petitioner calculated Machuca’s post-promotion salary pursuant to NY JUD §

37 (1)(b)(2), which effectively rescinded the 2% wage increases that Machuca was entitled to

and in fact received on October 1, 2014 and April 1, 2015 in accordance with the CSEA

Agreement. This resulted in the Petitioner unlawfully and wrongfully withholding an amount

not less than $3,880.42 for the period April 9, 2015 through March 31, 2016, which only

includes Machuca’ s salary and does not include any retirement contributions that the Petitioner is

also unlawfully and wrongfully withholding. See Aff., ¶~J 8, 14.

Annual Salary Description$104,004.42 Correct Salary for the period April 9, 2015 — April 8, 2016

(including 2% wage increases on 10/1/14 and 4/1/15 coveredby the CSEA Agreement; this does not include the Court ClerkSpecialist (JG-3 0) promotion increment of $4,074 owed toMachuca for the period April 1, 2016 — March 31, 2017

- $100. 124.00 April 9, 2015 — March 31, 2016 Salary actually paid

$3,880.42 Difference

53. Claiming that the underlying Grievance arises purely from the operation of

statute, not contract, negatively impacts the Respondent and its members (including Machuca) in

{00625 I 82.DOCX / } {00625 I 82.DOCX / } 10

10 of 14

two ways: (i) it allows the Petitioner to achieve its ultimate goal of avoiding arbitration by

circumventing its contractual obligation pursuant to section 15.7 of the CBA to proceed to

arbitration over the arbitrability of the Grievance; and (ii) it will render several provisions of the

Agreement, including sections 15.7 and 16.1, which the parties negotiated, inoperable and

ineffective, as it pertains to the many ways that the parties resolve their disputes.

54. Pursuant to CPLR § 7503(a), the Court may entertain and should grant an

application for an order compelling the Petitioner to arbitration if Respondent shows that there is

a valid agreement between the parties to arbitrate the dispute at issue.

55. Currently, if there is a dispute over the interpretation or application of a specific

term or provision of the CBA, either party can file a grievance through a three-step procedure

that results in arbitration. By the Petitioner speciously claiming that the basis of the Grievance

was statute, not contract, the Petitioner will continue to unlawfully and wrongfully withhold

monies and retirement contributions legally owed to the Employees (including Machuca). This

also allows the Petitioner to circumvent its obligation contained in section 16.1 of the CBA not

to diminish or impair any of the benefits or privileges provided by law for the benefit of the

Employees, including providing them with their entitled-to salaries and retirement contributions.

By avoiding this obligation, the Petitioner is making an end-run around its contractual

obligations and ultimately leaving the Union and the Employees (including Machuca), and its

members, powerless. This conduct violates the CBA because the Petitioner is unilaterally

changing the terms and conditions of the Employees’ employment. See Aff., Exhibit B.

56. Resolution of the underlying Grievance requires an interpretation and application

of the language of the CBA and, thus, is encompassed by the parties’ grievance and arbitration

clause. See Aff., Exhibit B.

{00625182.DOCX/ }{00625182.DOCX/ }1l

11 of 14

57. Courts use a two-prong inquiry to determine whether a public-sector grievance is

arbitrable. First, a court must determine whether “there is any statutory, constitutional or public

policy prohibition against arbitrating of the grievance.” Bd. Of Educ. Of Deer Park v. Deer Park

Teachers’ Ass’n., 77 A.D.3d 747, 748 (2d Dept. 2010). Under the second-prong, a court must

determine whether the parties “agree[d] to arbitrate” the underlying dispute. Bd. of Educ. of

Watertown City Sch. Dist. v. Watertown Educ. Ass’n, 93 N.Y.2d 132, 140 (1999).

58. In performing this inquiry, a court may not “consider whether the claim with

respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the

dispute.” CPLR § 7501. According to the Court of Appeals, “a court confronted with a contest

of this kind should merely determine whether there is a reasonable relationship between the

subject matter of the dispute and the general subject matter of the collective bargaining

agreement.” City of Johnstown v. Johnstown Police Benev. Ass’n, 99 N.Y. 273, 278 (2002).

59. It is for the arbitrator to decide whether the Petitioner violated the CBA by failing

and refusing to provide Machuca and the Employees with their entitled to salary and retirement

contributions unlawfully and wrongfully withheld by the Petitioner.

60. As this Court held in Unified Court System of the State of New York v. New

York State Court Clerks Ass’n., in denying another of the Petitioner’s frequent and unsuccessful

attempts to stay an arbitration, “[t]he collective bargaining agreement here is crystal clear -- the

question of the grievance’s arbitrability is to be decided by the arbitration, and the arguments

made by the parties in these proceedings should be directed at the arbitrator, not the court.” 2006

WL 6849492 (N.Y.Sup.), 4.

61. No prior application for this relief has been sought.

{00625182.DOCX/ }{00625182.DOCX/ }12

12 of 14

PRAYER FOR RELIEF

WHEREFORE, the Respondent prays for and order and judgment as per CPLR § 7503:

1. Denying the Petitioner’s application for a stay of arbitration of the Matter of the

Grievance of Grace Machuca (Labor Relations File No. 16/06);

2. Granting the Respondent’s cross-petition compelling the Petitioner to proceed to

arbitration with respect to Matter of the Grievance of Grace Machuca (Labor Relations File No.

16/06); and

3. Such other and further relief as this Court deems just and proper.

Dated: New York, New YorkOctober 13, 2016

Bruce J. Cooper, Esq.PITTA & GIBLIN LLP120 Broadway, 28th FloorNew York, New York 10271T: (21F:

By:

{00625182.DOCX/ }{00625182.DOCX / }13

13 of 14

VERIFICATION

STATE OF NEW YORK )) SS:

COUNTY OF NEW YORK)

The undersigned is an attorney admitted to practice in the Courts of New York; is an

associate at the firm of Pitta & Giblin LLP, attorneys of record for the Respondent in the within

action; has read the foregoing Verified Cross-Petition, knows the contents thereof; and the same

is true to affirmant’ s own knowledge; the basis of affirmant’ s knowledge as to all matters not

stated upon affirmant’s own knowledge is conversations with the Respondent and review of all

relevant documents.

Sw~rn to before me thisj~J~h day of October, 2016

r~,t~:”: ~‘C(~_~

r,

{00625182.DOCX/ }{00625182.DOCX / } 14

14 of 14