In the Matter of City of New York, et al., Appellants,v.New York State Nurses Association, et al., Respondents.BriefN.Y.April 25, 2017 APL-2015-00282 To be argued by: JANE L. GORDON 15 minutes requested Court of Appeals State of New York In the Matter of the Application of THE CITY OF NEW YORK, NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, JAMES HANLEY, as the Commissioner of the NEW YORK OFFICE OF LABOR RELATIONS, and THE NEW YORK CITY OFFICE OF LABOR RELATIONS, Petitioners-Appellants, against NEW YORK STATE NURSES ASSOCIATION, KAREN A. BALLARD, as the President of the NEW YORK STATE NURSES ASSOCIATION, THE BOARD OF COLLECTIVE BARGAINING OF THE CITY OF NEW YORK, and MARLENE GOLD, as Chair of the BOARD OF COLLECTIVE BARGAINING, Respondents-Respondents, For a Judgment Pursuant to CPLR Article 78. REPLY BRIEF RICHARD DEARING DEVIN SLACK JANE L. GORDON of Counsel September 15, 2016 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellants 100 Church Street New York, New York 10007 Tel: 212-356-0846 or -2500 Fax: 212-356-2509 jgordon@law.nyc.gov TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ........................................................ ii PRELIMINARY STATEMENT ................................................... 1 ARGUMENT ............................................................................... 3 THE DUTY TO EXCHANGE DATA FOR COLLECTIVE BARGAINING DOES NOT SUPPORT DISCOVERY TO PROBE THE EVIDENTIARY BASIS FOR POSSIBLE INDIVIDUAL DISCIPLINARY ACTIONS ........................................................................... 3 A. The Statutory Text and Context Refute the Board’s Proposed Discovery Right. ........................... 3 B. Discovery to Test the Evidentiary Basis for a Disciplinary Dispute Is Not Data Necessary for Effective Collective Bargaining. ............................... 7 C. The Board’s Implied Discovery Right Cannot Be Justified Under an Extra-Statutory “Contract Administration” Rubric. .......................................... 11 D. A Union Cannot “Administer” a Contract By Ignoring Its Bargained-for Terms. .......................... 13 E. The Board and the Union Have No Answer for the Practical Consequences of their Approach. ...... 18 CONCLUSION .......................................................................... 21 TABLE OF AUTHORITIES Page(s) iii Cases D’Amico v. Christie, 71 N.Y.2d 76 (1987) ..................................................................... 5 New York City Tr. Auth. v. New York State Pub. Empl. Rels. Bd., 8 N.Y.3d 226 (2007) ............................................... 7, 12 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) .................................................................... 12 Matter of Golf v. New York State Dep’t of Social Servs., 91 N.Y.2d 656 (1998) ................................................................... 7 Matter of Kilduff v. Rochester City Sch. Dist., 24 N.Y.3d 505 (2014) ................................................................. 15 Matter of Pfau v. New York Pub. Empl. Rels. Bd., 69 A.D.3d 1080 (3d Dep’t 2010) ..................... 17 Rao v. Gunn, 73 N.Y.2d 759 (1988) ................................................................. 18 Statutes and Rules Fed. R. Civ. P. 34(a)(1)(A) ................................................................ 9 N.Y.C. Admin. Code § 12-302 ........................................................... 4 N.Y.C. Admin. Code § 12-306 ................................................. passim TABLE OF AUTHORITIES Page(s) iv Other Authorities Bill Jacket, LL1 of 1972 ................................................................... 6 Merriam-Webster Online Dictionary ............................................... 9 1 PRELIMINARY STATEMENT Section 12-306(c)(4) of the New York City Collective Bargaining Law imposes a duty on municipal employers and unions to exchange “data” “necessary” to the “full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.” This duty promotes meaningful collective bargaining by affording unions access to the data about wages, hours, and working conditions that they need to negotiate effectively on behalf of their members. The Board and the Union maintain that this important, but circumscribed, duty gives unions a right to demand document discovery to test the evidentiary basis for potential discipline of individual employees. In their briefs to this Court, the Board and the Union all but ignore the central question in this case: whether the statute on which they ostensibly rely supports the right they propose. They give short shrift to the text and context of § 12-306(c)(4), offering no explanation as to how testing the evidentiary basis for disciplining a particular employee implicates the “discussion, understanding, and negotiation of subjects within the scope of 2 collective bargaining,” how discovery is “necessary” to those ends, or how discovery can be seen as part of the broader duty to “bargain” in good faith. The Board and Union instead gesture to principles of deference, but the Board has no authority to disregard and depart so radically from the statutory command under the guise of interpretation. Nor can the Board and the Union find safe harbor in the concept of “contract administration,” a rubric imported from federal labor law and found nowhere in § 12-306(c)(4), which speaks to the discussion, understanding, and negotiation of collective bargaining matters, not their administration. Even under this misplaced rubric, their argument founders on multiple grounds, the simplest being that the comprehensive framework for disciplinary proceedings the City and Union negotiated does not contemplate discovery at the earliest stages of those proceedings. The Union cannot ignore the contractual terms it negotiated under the pretense that it needs information to “administer” that same contract. For these reasons, and the 3 reasons discussed below and in our main brief, the Board’s determination should be set aside. ARGUMENT THE DUTY TO EXCHANGE DATA FOR COLLECTIVE BARGAINING DOES NOT SUPPORT DISCOVERY TO PROBE THE EVIDENTIARY BASIS FOR POSSIBLE INDIVIDUAL DISCIPLINARY ACTIONS The Collective Bargaining Law imposes a reciprocal duty on municipal employers and unions to exchange only “data” that is “necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.” N.Y.C. Admin. Code § 12-306(c)(4). That duty is critical to meaningful collective bargaining, but it does not support discovery in individual disciplinary matters, especially before an employer has acted, when any dispute remains hypothetical and any right to grieve is yet to ripen. A. The Statutory Text and Context Refute the Board’s Proposed Discovery Right. In their briefs to this Court, the Board and the Union make no real attempt to root the sweeping discovery right created by the Board in the text of § 12-306(c)(4)—the sole basis for the alleged 4 right. They could not. There is a wide and unbridgeable gulf between, on the one hand, a right to document discovery at the incipient stages of individual disciplinary disputes and, on the other hand, the duty for employers and unions to exchange “data” that are “necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.” N.Y.C. Admin. Code § 12-306(c)(4). As we explained in our main brief, this provision serves a critical function in furthering the Collective Bargaining Law’s core concern—effective collective bargaining. The exchange of data—about wages, hours, and working conditions—will often be necessary for employers and unions to have informed and meaningful discussions about terms subject to bargaining (see App. Br. at 3-5, 16-20). The plain language of § 12-306 itself thus makes clear that its purpose is to enable effective collective bargaining. While the Board and the Union gesture to the broader purposes of the Collective Bargaining Law, see N.Y.C. Admin. Code § 12-302, they lose sight of the provision’s plain language and its place within the Collective Bargaining Law as a whole. The reciprocal duty to 5 exchange data is a specific component of the duty to “bargain collectively in good faith” and it falls under the umbrella of a subsection titled “[g]ood faith bargaining.” Id. § 12-306(c); cf. D’Amico v. Christie, 71 N.Y.2d 76, 84 (1987) (holding statute “properly limited” to class “made plain even by its title”). Like the duty to exchange data, the four other components of the broader duty to bargain in good faith are likewise directed at core collective bargaining concerns: employers and unions must approach negotiations with “sincere resolve,” N.Y.C. Admin. Code § 12-306(c)(1); they must be represented by individuals authorized and prepared to “discuss and negotiate” relevant subjects, id. § 12- 306(c)(2); they must “meet at reasonable times and convenient places,” id. § 12-306(c)(3); and they must take steps to execute and implement “a written document embodying the agreed terms,” id. § 12-306(c)(5). Thus, like its text, the context of § 12-306(c)(4) confirms that the provision exists to allow employers and unions 6 to discharge their central function: to bargain effectively.1 The Board and the Union have no response on this front. Instead, they misstate the City’s position. We have never claimed that the duty to exchange data applies only during active, ongoing negotiations (see Board Br. at 28-29; Union Br. at 23). To be sure, the duty to exchange data can arise before, during, or after a collective bargaining agreement has been reached. But no matter what point data are requested, the question is always the same: are the data “necessary for the discussion, understanding and negotiation of subjects within the scope of collective bargaining”? It is here, on this key question, that the Board and the Union’s arguments falter. The Board and Union thus dedicate scant attention to the statute on which they rely, and instead assert that the Board’s approach is rational and entitled to deference (Board Br. at 15-17; Union Br. at 16). Neither actually claims that the Board’s 1 The Board and the Union also cite no legislative history lending support to their position, but nothing in the legislative history supports their proposed discovery right or contemplates that the Board would assume the role of superintending discovery in individual disciplinary disputes. See Bill Jacket, LL 1 of 1972, Report and Plan of Mayor John V. Lindsay, at 39-42. 7 approach would survive review in the absence of deference, and no deference is warranted where, as here, the question posed is “one of pure statutory construction ‘dependent only on accurate apprehension of legislative intent [with] little basis to rely on any special competence.’” New York City Tr. Auth. v. New York State Pub. Empl. Rels. Bd., 8 N.Y.3d 226, 231 (2007) (NYCTA). Nowhere does the Board or the Union suggest that there is a “fundamental ambiguity” in § 12-306(c)(4) that even leaves room for deference. See Matter of Golf v. New York State Dep’t of Social Servs., 91 N.Y.2d 656, 667 (1998). And while the Union suggests that the Board has “special expertise” in contract administration issues (Union Br. at 16), neither it nor the Board explains how it would bear on the scope of Step I discovery under § 12-306(c)(4). In any case, the Board’s approach is unmoored from § 12- 306(c)(4). No amount of deference can save it. B. Discovery to Test the Evidentiary Basis for a Disciplinary Dispute Is Not Data Necessary for Effective Collective Bargaining. Here, the Board found that the carefully defined and circumscribed statutory duty to exchange data obligated the City 8 to honor aspects of the Union’s requests for document discovery in connection with charges of misconduct and incompetence against two individual employees (R. 119-24). Neither the Board nor the Union disputes that the Union’s discovery requests were made at the earliest stage of the disciplinary process, before any disciplinary action had been taken or any right to grieve could have ripened. Neither disputes that the Union requested the documents to “represent” the employees in the individual disciplinary proceedings (R. 119, 121, 123-24). Neither disputes that the proceedings raised unremarkable disciplinary issues concerning the two individual employees, not any broader systemic concerns (see App. Br. at 17-18). As an initial matter, the Union sought, and the Board compelled, the production of documents like time sheets, agency policies, and patient medical records in connection with charges that these two employees had falsified their time records (R. 97- 118, 119-24, 378-86)—quintessential document discovery. But the Board and the Union have never explained how such documents— patient medical records, for example—qualify as “data,” a precise 9 term that is most often used to refer to numerical factual information, like statistics or measurements. See e.g., Merriam- Webster Online Dictionary, at http://bit.ly/2cwyF6k. One should not lightly disregard the presumption that the City Council settled on the term “data” deliberately, preferring it over a less precise and more expansive term like “information.” Cf. Fed. R. Civ. P. 34(a)(1)(A) (characterizing “data” as a subset of “documents or electronically stored information”). The Board’s order is thus mismatched with the statutory text from the beginning. The problem only worsens when the remainder of the text is considered, as document discovery designed to test the evidentiary basis for charges of individual employee misconduct or incompetence is far removed from the “discussion, understanding and negotiation of subjects within the scope of collective bargaining.” N.Y.C. Admin. Code § 12-306(c)(4). To be sure, employee discipline is a subject for collective bargaining—but the Board and the Union misunderstand what that means. It is employee discipline writ large—its processes and procedures— that is a subject of collective bargaining. And here, it has been a 10 subject of collective bargaining: the City and the Union negotiated a comprehensive framework for employee discipline and neither the Board nor the Union disputes that this framework does not contemplate the document discovery endorsed by the Board. The mere fact that employee discipline in general is a matter to be discussed, understood, and negotiated does not transform a union’s request for document discovery designed to test the evidentiary basis for a possible individual disciplinary action into a request for data necessary for effective collective bargaining. The same fundamental disconnect underlies the Union’s contention that “when one employee is disciplined for engaging in certain conduct, all employees have an interest in knowing whether under the collective bargaining agreement such conduct gives their employer grounds for discipline” (Union Br. at 25). Maybe so, and the union’s contention might require the exchange of data concerning the discipline that a municipal employer actually imposes or has imposed over time. But the Union’s contention does not justify document discovery designed to interrogate the evidentiary basis for possible disciplinary action 11 against a single employee—to further union representation of individual employees in individual disciplinary proceedings. Such manifest document discovery, which the Board endorsed as a matter of course, is untethered from the “discussion, understanding and negotiation of subjects within the scope of collective bargaining”—much less “necessary” to those ends. N.Y.C. Admin. Code. § 12-306(c)(4). C. The Board’s Implied Discovery Right Cannot Be Justified Under an Extra-Statutory “Contract Administration” Rubric. Because the Board and the Union find no support for their position in the statute, they are left to argue that a union’s right to request discovery in individual disciplinary disputes can be inferred as a matter of “contract administration” (Board Br. at 21; Union Br. at 21). There is good reason to question what place the concept of “contract administration” has under the City’s Collective Bargaining Law. The concept is uncritically borrowed from federal labor law, and federal courts have allowed federal agencies to expand collective bargaining rights by implication. This Court eschewed such an approach in NYCTA, 8 N.Y.3d 226— 12 in that case, rejecting an attempt by the Public Employment Relations Board (PERB) to read into the State Taylor Law a right to union counsel in disciplinary interviews. Compare NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). The Board makes no attempt to grapple with this aspect of NYCTA (see Board Br. at 16). Meanwhile, the Union’s sole response is that, in NYCTA, PERB implied a right in a subject area where the relevant statute—the Taylor Law—had no express provision (see Union Br. at 18). But the Union gets the significance of this fact backwards: that the City’s law includes a provision that speaks directly to the exchange of data makes the implication of an expansive discovery right unmoored from that specific text even more problematic than what PERB did in NYCTA. When enacting the Collective Bargaining Law, the City Council considered the question of what data should be exchanged, when, and for what reasons, and it answered that question by crafting a far more circumscribed duty to exchange data to enable effective collective bargaining than the sweeping discovery right pressed by the Union and endorsed by the Board. 13 After all, the City Council could easily have extended the duty to reach the “administration” of collective bargaining agreements, but it did not. Its concern was narrower: the “discussion, understanding and negotiation of subjects within the scope of collective bargaining.” N.Y.C. Admin. Code § 12-306(c)(4). This Court need not decide whether the “contract administration” rubric has any place under the Collective Bargaining Law (or the Taylor Law). Whatever validity that concept may have elsewhere, the Board cannot use the concept to transform § 12-306(c)(4) into something it is not: the source of a right for unions to request document discovery to test the evidentiary basis for individual disciplinary disputes. D. A Union Cannot “Administer” a Contract By Ignoring Its Bargained-for Terms. The Board and the Union’s “contract administration” argument also does not make sense on its own terms. The CBA includes the detailed and comprehensive framework for individual disciplinary proceedings negotiated by the Union and the City (R. 60-65). Neither the Board nor the Union disputes that this 14 framework does not contemplate any discovery until the fourth and final step of that framework—arbitration—at which point the “parties shall, whenever possible, exchange any documents intended to be offered in evidence at least one week in advance of the first hearing date” (R. 64-65). That the Union and the City bargained for discovery only at this advanced stage of the disciplinary process, and not at prior stages like the Step I informal conference when the Union requested discovery here (R. 63), is all but ignored by the Board and the Union.2 The Board and the Union posit that the source of their proposed discovery right is not the specific contract at issue here, but rather a statutory “contractual administration” right (Board Br. at 19; Union Br. at 20). But even accepting that flawed rubric, it makes little sense to suggest that a union can ignore the 2 The CBA provides: “Step I. Following the service of written charges upon an employee, with a copy to be sent to the Association’s New York City office, a conference shall be held with respect to such charges by a person who is designated by the agency head to review such charges. The employee may be represented at such conference by a representative of the Association. The person designated by the agency head to review the charges shall take any steps necessary to a proper disposition of the charges and shall issue a decision in writing by the end of the fifth day following the date of the conference.” 15 negotiated terms of a contract under the pretense that it needs information to “administer” the contract. Yet, despite ignoring the negotiated discovery parameters established in the collective bargaining agreement, the Union relies on the agreement, contending that it defines a “grievance” to include, among other things, “disciplinary proceedings” (Union Br. at 26-28). It is not clear why the Union thinks this is significant: section 12-306(c)(4) contemplates the exchange of data to enable effective collective bargaining, not the processing of grievances. But in any case, the Union misreads the collective bargaining agreement, which cabins the definition of the term “grievance” to “a claimed wrongful disciplinary action taken against an employee,” and further defines the concept as a “determination at Step I” (R. 61, 64) (emphasis added).3 3 The contractual definition is consistent with how this Court has treated the concept of “disciplinary action” in the labor context. See, e.g., Matter of Kilduff v. Rochester City Sch. Dist., 24 N.Y.3d 505, 505 (2014) (discussing how a teacher’s “disciplinary action”—a 30-day suspension—may be processed under the CBA grievance procedure). Even the decisions on which the Board and Union so heavily rely in their briefs concerned discovery after an adverse action had been taken (see Board Br. at 39; Union Br. at 30). Thus, if anything, these decisions support the City’s position here. 16 Here, the Union requested discovery before any disciplinary action had been taken, before the informal Step I conference and well before any grievance could possibly have ripened. The Union’s request itself specified that the documents were sought to represent and defend two individual employees at their informal conference (R. 119). Thus, even setting aside that the City’s Collective Bargaining Law does not create a right to discovery in connection with the processing of grievances, there was no grievance to speak of here. The Board and the Union also conflate broad-based contractual grievances and individual disciplinary grievances. Whereas the former implicate employees’ shared interest in ensuring that their negotiated agreement is effectively translated from language to practice, the latter implicate the personal concerns of individual employees, often about matters that are unconnected to the collective bargaining agreement. This distinction, widely understood in labor practice, is reflected in the collective bargaining agreement between the Union and the City—the agreement differentiates between 17 grievances “of a general nature affecting a large number of employees and which concerns the claimed misinterpretation, inequitable application, violation or failure to comply with the provisions of th[e] agreement” (R. 62), and individual disciplinary grievances, centered around claimed misconduct or poor performance which do not even ripen until an employer takes disciplinary action (R. 61, 64). If the concept of “contract administration” is stretched so far as to extend the statutory data right to include evidentiary discovery in individual cases of possible employee discipline, the statutory focus on collective bargaining has surely been lost. The same distinction undergirds the Third Department’s decision in Matter of Pfau v. New York Public Employment Relations Board, 69 A.D.3d 1080 (3d Dep’t 2010). The Board and the Union have far more to say about Pfau than the statute on which they claim to rely, but they misunderstand the decision and why it undermines their case. Focusing on the fact that Pfau originated from a “hybrid disciplinary process” and construed the Taylor Law and not the 18 Collective Bargaining Law (Board Br. at 37-41; Union Br. at 31- 33), the Board and the Union ignore Pfau’s principal insights: that disciplinary conferences “serve a significantly different function than a grievance; that there is no “general right” to discovery in disciplinary proceedings; and that disciplinary proceedings should not be unduly protracted. Pfau, 69 A.D.3d at 1082-83; see also Rao v. Gunn, 73 N.Y.2d 759, 761 (1988) (observing that public employers have a “legitimate and strong interest in resolving employment status promptly” through disciplinary proceedings). Those insights apply with equal force here. E. The Board and the Union Have No Answer for the Practical Consequences of their Approach. As explained in our main brief, there is a need for expediency in the disciplinary process, and the collective bargaining agreement between the Union and the City reinforces this objective by charting a schedule for the resolution of disciplinary issues (App. Br. at 7-8, 22-23). The Board does not genuinely dispute the wisdom of this expedited process, and the Union, having negotiated for it, could not. 19 Rather, the Union counters that expediency would be better served by permitting discovery before the informal Step I conference (Union Br. at 39-41). The premise is questionable on its face—many disciplinary issues are resolved at the Step I conference, and requiring routine discovery before the parties get there, and before any adverse action has even been taken, will, at best, delay resolution of individual disputes and encourage gamesmanship. But if this is the union’s preference, it is free to bargain for it. For its part, the Board disputes that the disciplinary process is fast-tracked (Board Br. at 34-35) but the collective bargaining agreement speaks for itself. The Board also characterizes, as speculative, the notion that injecting discovery at the earliest stages of disciplinary proceedings will delay those proceedings (Board Br. at 35). But it is, in fact, a matter of common sense—one familiar to judges versed in superintending discovery—as well as scholarly study (see App. Br. at 15-16, 28). The Board also suggests that pre-Step I discovery need not delay disciplinary proceedings because “[n]othing requires an 20 agency to refrain from taking disciplinary action against an employee due to a request for information” (Board Br. at 33). This remarkable suggestion, if accepted, would undermine the very reason why the Union sought and the Board compelled discovery—to allow a union to defend an employee at a Step I conference. A proposed scheme of after-the-fact satellite discovery litigation raises more problems, and solves none. This appeal can and should be resolved based on a plain reading of § 12-306(a)(4) and the collective bargaining agreement—neither supports the discovery right implied by the Board. Unions may of course bargain for such a right, and some have. But imposing such a right—despite the plain language of the statute and the bargained-for terms of a collective bargaining agreement—would undermine the integrity of the bargaining process and frustrate the long-recognized substantial interest in resolving disciplinary matters expeditiously. 21 CONCLUSION The order appealed from should be reversed. Dated: New York, New York September 15, 2016 RICHARD DEARING DEVIN SLACK JANE L. GORDON of Counsel Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellants By: __________________________ JANE L. GORDON Senior Counsel 100 Church Street New York, New York 10007 212-356-0846 jgordon@law.nyc.gov