Delete Sanitation Union’s E-Waste Comments, New York City Urges Court
New York City wants the court to strike from the record evidence that the city’s sanitation workers’ union introduced in an amicus brief backing CE makers’ request for a preliminary injunction to block the city’s e-waste program from taking effect. The union, in its Dec. 11 brief filed at the U.S. District Court in Manhattan, argued that the city’s e-waste law “did not remove residential collection of covered electronic waste from the purview” of the Department of Sanitation, and that such collections should remain the “exclusive province” of sanitation workers.
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But the city, in a reply memorandum filed just before the Christmas holiday weekend, fired back that the union’s brief presented facts “that are not already in the record” and should be struck. It’s “not the role” of an amicus brief to “supplement the record” with new evidence when the record of a proceeding is closed, the city said. The union “may prefer a different approach” to e-waste collection than DSNY rules mandating that CE makers haul away the waste, but “such preference is not relevant” to plaintiffs’ arguments that the city’s program is unconstitutional, it said.
In its brief, the union disclosed publicly for the first time that it filed a complaint last summer with the city’s collective bargaining office protesting implementation of the e-waste law. The complaint, filed about two weeks after CE makers sued the city to block the program, argued that “a public employer may not unilaterally subcontract or privatize work performed exclusively by civil servants in a particular bargaining unit,” the union’s brief said. “The collection of residential waste is the exclusive province of sanitation workers,” as it has been since the DSNY, then called the Department of Street Cleaning, imposed the first city-wide recycling plan in 1895, the union said. “For the most part, the goals and means” of the e-waste law “are by no means novel” in New York City sanitation history, it said.
But DSNY’s “history of recycling is not relevant” to the constitutional claims CE makers have argued in seeking the preliminary injunction, the city retorted. Still, DSNY is “proud of its long history of participation in recycling initiatives” and “commends” sanitation workers’ “important contribution to this history,” the city said.
The program’s rules “are sufficiently flexible to allow manufacturers to provide a variety of collection options … so long as direct collection remains an option,” the city said. The union had called such claims of flexibility a “red herring,” because the direct collections requirement would rob a resident of any incentive to haul a heavy TV set to a weekend collection event. But the city rejected the red herring charge, because “different methods of collection may be most convenient for different people depending on their location, work schedule, and car ownership status. For example, if a manufacturer submitted an e-waste management plan that included both direction collection and periodic drop-off events, a resident that owns a car may choose to utilize the drop-off event instead of making arrangements and waiting at home for a direct pick up.”
The city’s reply memorandum was to be the last written filing permitted by either side under a stipulated order signed by U.S. District Judge William Pauley on Nov. 17. Pauley has scheduled oral argument in the case for Jan. 19 at 2 p.m.