In the Matter of City of New York, et al., Appellants,v.New York State Nurses Association, et al., Respondents.BriefN.Y.Apr 25, 2017 STATE OF NEW YORK COURT OF APPEALS APL-2015-282 In the matter of THE CITY OF NEW YORK; NEW YORK CITY HUMAN RESOURCES ADMINISTRATION; JAMES HANLEY, as the Commissioner of the New York City Office of Labor Relations; and THE NEW YORK CITY OFFICE OF LABOR RELATIONS, Appellants, -against- New York County Index No. 401425/11 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, For a Judgment Pursuant to CPLR Article 78. AMICUS BRIEF ON BEHALF OF NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD DAVID P. QUINN Attorney for Amicus Curiae NYS Public Employment Relations Board PO Box 2074 Empire State Plaza Agency Building 2, 20th Floor Albany, New York 12220-0074 Tel. (518) 457-2678 October 27, 2016 Fax. (518) 457-2664 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................. i-iv PRELIMINARY STATEMENT ............................................................................ 1 QUESTIONS PRESENTED ................................................................................... 4 STATEMENT OF THE CASE ................................................................................ 5 ARGUMENT POINT I THE TAYLOR LAW, LIKE THE SUBSTANTIALLY EQUIVALENT NYCCBL, REQUIRES A COVERED EMPLOYER TO PROVIDE APPROPRIATE INFORMATION TO A CERTIFIED OR RECOGNIZED EMPLOYEE ORGANIZATION IN AID OF THE ORGANIZATION’S REPRESENTATION OF REPRESENTED EMPLOYEES IN A CONTRACTUAL DISCIPLINARY PROCEEDING ..................................................... 7 POINT II THE DUTY TO PROVIDE INFORMATION IN DISCIPLINARY DISPUTES UNDER THE NYCCBL IS NOT DIMINISHED BY THE DECISION OF THE APPELLATE DIVISION, THIRD DEPARTMENT, IN MATTER OF PFAU V NEW YORK STATE PUB EMPL RELATIONS BD, 69 AD3D 1080 (3D DEPT 2010) ...... 17 A. Pfau is distinguishable from the instant matter in material respects. ................................................................................ 17 B. The holding in Pfau should be confined to the facts and circumstances of that matter ......................................... 21 CONCLUSION ..................................................................................................... 25 i TABLE OF AUTHORITIES Page(s) Cases Avon Cent Sch Dist [Avon Teachers Assn], 20 PERB ¶ `4564 [1987] ..........................................................................................................15 Board of Educ of the City Sch Dist of the City of Albany (Albany Pub Sch Teachers Assn), 6 PERB ¶ 3012 (1973) .........................................................................................................8, 16 Board of Educ of the City Sch Dist of the City of New York (Local Union 1969), 40 PERB ¶ 3002 (2007) .............................................................................................................8 Cairo–Durham Central School District (DeOliveira), confd sub nom. Matter of DeOliveira v New York State Pub Empl Relations Bd, 133 AD3d 1010 (3d Dept 2015) ...............................................................................................................................11 City of Cohoes (Uniform Firefighters of Cohoes, Local 2562), 31 PERB ¶ 3020 (1998), confd sub nom. Uniform Firefighters of Cohoes v Cuevas, 32 PERB ¶ 7026 (Sup Ct, Albany County 1999), affd 276 AD2d 184 (3d Dept 2000), lv denied 96 NY2d 711(2001) .......................................................................14 Matter of City of New York v New York State Nurses Assn, 130 AD3d 28 [1st Dept 2015] ....................................................................................................1 Matter of Association of Surrogates and Supreme Ct. Reporters within the City of New York v State of New York, 78 NY2d 143 (1991) ..................................................................................................................5 City of Rochester (Rochester Police Locust Club), 29 PERB ¶ 3070 (1996) .........................................................................................................8, 9 Matter of City of Watertown v New York State Pub Empl Relations Bd, 95 NY2d 73 (2000) ..................................................................................................................13 Matter of Connolly v Williams, 210 AD2d 19 (1st Dept 1994) ..................................................................................................20 County of Erie and Erie County Medical Center Corp (New York State Nurses Assn), 45 PERB ¶ 3036 (2012) .......................................................................................................9, 16 ii County of Erie and Erie County Sheriff (International Brotherhood of Teamsters), 36 PERB ¶ 3021 (2003), confd sub nom. Matter of County of Erie and Erie County Sheriff v New York State Pub Empl Relations Bd, 14 AD3d 14 (3d Dept 2004) ....................................................................................................................... passim County of Montgomery (Civ Serv Emps Assn), 44 PERB ¶ 3045 (2011) ...........................................................................................................21 County of Nassau, 48 PERB ¶ 3023 (2015) ...........................................................................................................24 County of Ulster (Ulster County Sheriff’s Emps Assn), 26 PERB ¶ 3008 (1993) .....................................................................................................14, 20 County of Yates (Civ Serv Emps Assn, Inc.), 27 PERB ¶ 3080 (1992) ...........................................................................................................13 Greenburgh No. 11 Union Free Sch Dist (Greenburgh No. 11 Fedn of Teachers), 33 PERB ¶ 3059 (2000) .......................................................................................................9, 24 Hampton Bays Union Free Sch Dist (Hampton Bays Teachers Assn), 41 PERB ¶ 3008 (2008), confd sub nom. Matter of Hampton Bays Union Free Sch Dist v New York State Pub Empl Relations Bd, 62 AD3d 1066 (3d Dept 2009), lv denied 13 NY3d 711 (2009) ............................................................................. passim Hornell Cent Sch Dist (Hornell Teachers Assn, Local 2738), 9 PERB ¶ 3032 (1976) ...............................................................................................................9 Levitt v Board of Collective Bargaining, 79 NY2d 120 (1992) ..................................................................................................................5 New York City Trans Auth v Transport Workers Union of America, Local 100, AFL–CIO, 99 NY2d 1 (2002) ....................................................................................................................11 New York City Transit Authority(Little), 37 PERB ¶ 4523 (2004) ...........................................................................................................24 Newark Valley Cent Sch Dist (Newark Valley Cardinal Bus Drivers), 24 PERB ¶ 3037 (1991), confd sub nom. Newark Valley Cent Sch Dist v. New York State Pub Empl Relations Bd, 83 NY2d 315 (1994) .......................................................15 Newburgh Enlarged City Sch Dist (Newburgh Teachers Assn), 21 PERB ¶ 3036 (1988) ...........................................................................................................15 Matter of Pfau v New York State Pub Empl Relations Bd., 69 AD3d 1080 (3d Dept 2010) ........................................................................................ passim iii Salmon River Cent Sch Dist (Salmon River Cent Teachers’ Assn), 21 PERB ¶ 3006 (1988) .............................................................................................................8 Schuyler-Chemung-Tioga BOCES (Schuyler-Chemung-Tioga Educational Assn), 34 PERB ¶ 3019 (2001) ...........................................................................................................12 Service Empls International Union, Local 200, AFL-CIO, 8 PERB ¶ 3037 (1975) ...............................................................................................................9 Matter of Sinha v Ambach, 91 AD2d 703 (3d Dept 1982) ..................................................................................................20 State of New York (Dept of Health and Roswell Mem Inst) (NYS Pub Emps Fedn), 26 PERB ¶ 3072 (1993) .......................................................................................................6, 12 State of New York (Division of State Police) (Police Investigators Assn), 30 PERB ¶ 3037 (1997) ...........................................................................................................16 State of New York (GOER) (New York State Inspection, Sec & Law Enft Emps, Dist Council 82), 25 PERB ¶ 3078 (1992), confd sub nom. New York State Inspection, Sec & Law Enft Emps, Dist Council 82 v Kinsella, 197 AD2d 341 (3d Dept 1994) .........................16 State of New York (OMRDD) (Civ Serv Emps Assn, Inc.), 38 PERB ¶ 3036 (2005), confd sub nom. Matter of Civil Serv Emps Assn, Inc. v New York State Pub Empl Relations Bd, 14 Misc3d 199 (Sup Ct, Albany County 2006), affd 46 AD3d 1037 (3d Dept 2007) ...........................................3, 12, 13, 20, 21 State of New York Unified Court System (District Council 37), 41 PERB ¶ 3009 (2008), anulled sub nom. Pfau v New York State Pub Empl Relations Bd, 24 Misc3d 260 (Sup Ct Albany County 2009), affd Pfau, supra ......................18 Town of Evans (International Brotherhood of Electrical Workers, Local 41), 37 PERB ¶ 3016 (2004) .....................................................................................................14, 15 Matter of Utica City School Dist. v Fehlhaber, 59 AD3d 957 (4th Dept 2009) ...........................................................................................19, 20 Statutes Civil Practice Law Article 31 ........................................................................................................13 Civ. Serv. Law § 75 ...........................................................................................................14, 19, 20 Civil Service Law Article 14 ...........................................................................................................1 Civ. Serv. Law §§ 200 .............................................................................................................5, 7, 8 Civ. Serv. Law §§ 200[a] and [b] ....................................................................................................7 iv Civ. Serv. Law § 200 [c] ..................................................................................................................7 Civ. Serv. Law § 200[e] ...................................................................................................................7 Civil Service Law §§ 202 and 203 ......................................................................................... passim Civ. Serv. Law § 204 .....................................................................................................................23 Civ. Serv. Law §§ 205.5 (d) and 212.2 ........................................................................................1, 5 Civ. Serv. Law § 209-a ....................................................................................................................5 Civ. Serv. Law § 209-a (1).......................................................................................................3, 8, 9 Civ. Serv. Law § 212.2 ..................................................................................................................17 Freedom of Information Law .........................................................................................................13 NYCCBL ............................................................................................................................... passim NYCCBL § 12-306 (c) (4) .................................................................................................1, 2, 6, 18 Public Health Law § 230................................................................................................................20 Other Authorities 4 NYCRR § 213.6 (b) ....................................................................................................................23 22 NYCRR 25.29 ...........................................................................................................................15 New York City Administrative Code § 12-306 ...............................................................................5 New York City charter .....................................................................................................................5 1 PRELIMINARY STATEMENT The New York State Public Employment Relations Board (“PERB”) submits this brief as amicus curiae in this matter because it has significant experience regarding the threshold question of law and an interest in its answer. The at-issue New York City Collective Bargaining Law (“NYCCBL”), as implemented by respondent Board of Collective Bargaining (“BCB”), must be “substantially equivalent to the provisions and procedures” of Civil Service Law (“Civ. Serv. Law”) Article 14 – the “Taylor Law” – which PERB administers. See Civ. Serv. Law §§ 205.5 (d), 212.2.1 In the decision on appeal (Matter of City of New York v New York State Nurses Assn, 130 AD3d 28 [1st Dept 2015]), the Appellate Division confirmed BCB’s determination that appellant City of New York (“City”) was required to provide certain information to respondent New York State Nurses Association (“NYSNA”) that NYSNA requested in aid of its representation of two unit employees in a contractual disciplinary proceeding. The Appellate Division relied on NYCCBL § 12-306 (c) (4), which requires covered entities, including the City, to provide to recognized or certified employee organizations, such as NYSNA, 1 Under Civ. Serv. Law § 212.2, the “provisions and procedures” of the NYCCBL “shall be of full force and effect unless and until such provisions and procedures, or the continuing implementation thereof, are found by a court of competent jurisdiction, in an action brought by [PERB] in the county of New York for a declaratory judgment, not to be substantially equivalent to the provisions and procedures set forth in [the Taylor Law].” Emphasis added. 2 “data normally maintained in the regular course of business, reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.” The Court deferred to BCB’s determination that the City’s duty to provide information to NYSNA under NYCCBL § 12-306 (c) (4) extended to information that NYSNA needed in association with the underlying disciplinary dispute. The Court rejected the City’s argument that it had no duty to provide the at- issue information pursuant to Matter of Pfau v New York State Pub Empl Relations Bd., 69 AD3d 1080 (3d Dept 2010) (hereinafter “Pfau”), where the Third Department observed that “there is no general right to disclosure in a disciplinary proceeding.” Pfau, 69 AD3d at 1082. Here, however, the First Department emphasized that the NYCCBL expressly provides for access to information associated with NYSNA’s collective bargaining rights. Therefore, the Court confirmed BCB’s conclusion that the City violated the NYCCBL by refusing to provide much of the information that NYSNA requested. As discussed infra, PERB contends that NYCCBL § 12-306 (c) (4) as construed by BCB here is substantially equivalent to the Taylor Law as construed by PERB for over four decades. Indeed, the Appellate Division, Third Department, has specifically confirmed PERB’s decisions holding that the Taylor Law duty to provide information to employee organizations in aid of their 3 representational rights and obligations extends to information associated with disciplinary disputes in contractual disciplinary proceedings. See Hampton Bays Union Free Sch Dist (Hampton Bays Teachers Assn), 41 PERB ¶ 3008 (2008), confd sub nom. Matter of Hampton Bays Union Free Sch Dist v New York State Pub Empl Relations Bd, 62 AD3d 1066 (3d Dept 2009), lv denied 13 NY3d 711 (2009); State of New York (OMRDD) (Civ Serv Emps Assn, Inc.), 38 PERB ¶ 3036 (2005), confd sub nom. Matter of Civil Serv Emps Assn, Inc. v New York State Pub Empl Relations Bd, 14 Misc3d 199, (Sup Ct, Albany County 2006), affd 46 AD3d 1037 (3d Dept 2007); County of Erie and Erie County Sheriff (International Brotherhood of Teamsters), 36 PERB ¶ 3021 (2003), confd sub nom. Matter of County of Erie and Erie County Sheriff v New York State Pub Empl Relations Bd, 14 AD3d 14 (3d Dept 2004) – a line of cases that the Court reaffirmed in Pfau. The City’s argument that the duty to provide information to an employee organization terminates with the finalization of negotiations for a collective bargaining agreement fundamentally misapprehends the scope of its duty under the Taylor Law and the substantially equivalent NYCCBL. Indeed, the City’s contention is belied by Pfau, the very case on which the City relies. There, the Court expressly observed: “Civil Service Law § 209-a (1), together with Civil Service Law §§ 202 and 203, provide firm footing for the recognized right of an employee organization to obtain information relevant to a potential contractual 4 grievance about the interpretation, application or alleged violation of a provision of a collective bargaining agreement” (Pfau, 69 AD3d at 1082). In all other material respects, Pfau is fully distinguishable from the instant matter. Accordingly, PERB respectfully submits that the Court should affirm the decision of the Appellate Division, First Department, insofar as it holds that the City had an obligation under the NYCCBL to provide information to NYSNA in aid of NYSNA’s representational rights in the underlying contractual disciplinary dispute. PERB takes no position on whether the City complied with that duty under the particular facts of this case. QUESTIONS PRESENTED 1. Does the Taylor Law, like the substantially equivalent NYCCBL, require a covered employer to provide appropriate information to a certified or recognized employee organization in aid of the organization’s representation of represented employees in a contractual disciplinary proceeding? The Appellate Division correctly held that it does. 2. Is the duty to provide information in disciplinary disputes under the NYCCBL diminished by the decision of the Appellate Division, Third Department, in Matter of Pfau v New York State Pub Empl Relations Bd., 69 AD3d 1080 (3d Dept 2010)? The Appellate Division correctly held that it is not. 5 STATEMENT OF THE CASE PERB is an executive board of the State of New York established to administer the Taylor Law, a statutory scheme that grants public employees the rights of organization and collective representation in order to ameliorate conditions that can lead to strikes and other interruptions in the orderly flow of government services. See Civ. Serv. Law §§ 200; Matter of Association of Surrogates and Supreme Ct. Reporters within the City of New York v State of New York, 78 NY2d 143, 152-153 (1991). Civ. Serv. Law § 205.5 (d) grants PERB exclusive nondelegable jurisdiction to develop procedures to prevent and remedy improper practices as they are defined in Civ. Serv. Law § 209-a. However, Civ. Serv. Law § 205.5 (d) attenuates PERB’s jurisdiction over the City of New York. Under Civ. Serv. Law § 205.5 (d), “[t]he board of collective bargaining established by section eleven hundred seventy-one of the New York city charter shall establish procedures for the prevention of improper employer and employee organization practices as provided in section 12-306 of the administrative code of the city of New York.” But, § 12-306 of the New York City Administrative Code, the NYCCBL, and the “continuing implementation thereof,” must be “substantially equivalent to the provisions and procedures set forth in [the Taylor Law].” Civ. Serv. Law § 212.2; Levitt v Board of Collective Bargaining, 79 NY2d 120 (1992). 6 For over four decades, PERB has held that the Taylor Law imposes a duty to provide information that is substantially equivalent to the duty imposed under NYCCBL § 12-306 (c) (4) as construed by BCB here. Indeed, PERB has held that the representational rights associated with disciplinary disputes are among the most important representational rights that a union possesses. See State of New York (Dept of Health and Roswell Mem Inst) (NYS Pub Emps Fedn), 26 PERB ¶ 3072 (1993). The City’s assertion that a union’s right to information in aid of its representational rights terminates with the negotiation of a collective bargaining agreement is belied by Pfau – the very case on which it relies for that proposition. There, the Court expressly reaffirmed its prior holdings that unions are entitled to obtain information under the Taylor Law associated with the administration of contractual grievances, including those involving discipline. Thus, the City’s argument that Pfau stands for the proposition that unions are not entitled to information associated with contractual disciplinary proceedings is misplaced. Accordingly, PERB respectfully submits that BCB’s determination that the City was required to provide certain information to NYSNA that NYSNA requested in aid of its representation of unit employees in a contractual disciplinary proceeding was correct on the law and properly confirmed by the First Department 7 ARGUMENT POINT I THE TAYLOR LAW, LIKE THE SUBSTANTIALLY EQUIVALENT NYCCBL, REQUIRES A COVERED EMPLOYER TO PROVIDE APPROPRIATE INFORMATION TO A CERTIFIED OR RECOGNIZED EMPLOYEE ORGANIZATION IN AID OF THE ORGANIZATION’S REPRESENTATION OF REPRESENTED EMPLOYEES IN A CONTRACTUAL DISCIPLINARY PROCEEDING In expressly stating the public policy underpinnings for the Taylor Law and, thus, the NYCCBL, the Legislature unambiguously declared that “it is the public policy of the State and the purpose of this Act to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government.” Civ. Serv. Law § 200. The Legislature further stated that those public policies are “best effectuated” by, among other means, granting to public employees the rights of organization and collective representation (Civ. Serv. Law §§ 200[a] and [b]), by “encouraging such public employers and such employee organizations to agree upon procedures for resolving disputes (Civ. Serv. Law § 200 [c]), and by continuing the established prohibition against strikes (Civ. Serv. Law § 200[e]). 8 Therefore, under Civ. Serv. Law § 202, the Legislature granted public employees the right to organize and participate in employee organizations, and, in Civ. Serv. Law § 203, the Legislature expressly declared that “public employees shall have the right to be represented by employee organizations, to negotiate collectively with their public employers in the determination of their terms and conditions of employment, and the administration of grievances arising thereunder.” Significantly relevant here, Civ. Serv. Law § 203 does not distinguish between grievances regarding benefits and those regarding disciplinary disputes. PERB has consistently held that the public policies expressly stated in Civ. Serv. Law § 200 giving rise to the Taylor Law right to collective negotiations and the administration of grievances under Civ. Serv. Law §§ 202 and 203 contemplate effective representation, which, in turn, necessitates access to appropriate information in the possession of public employers. See generally Board of Educ of the City Sch Dist of the City of Albany (Albany Pub Sch Teachers Assn), 6 PERB ¶ 3012 (1973); Salmon River Cent Sch Dist (Salmon River Cent Teachers’ Assn), 21 PERB ¶ 3006 (1988); City of Rochester (Rochester Police Locust Club), 29 PERB ¶ 3070 (1996); Board of Educ of the City Sch Dist of the City of New York (Local Union 1969), 40 PERB ¶ 3002 (2007) (unions entitled to information in aid of negotiations and administration of grievances). Indeed, the Appellate Division, Third Department, has observed that “Civil Service Law § 209-a (1), together with 9 Civil Service Law §§ 202 and 203, provide firm footing for the recognized right of an employee organization to obtain information relevant to a potential contractual grievance about the interpretation, application or alleged violation of a provision of a collective bargaining agreement” (Pfau, 69 AD3d at 1082). Thus, while the Taylor Law does not expressly require employers to provide information to employee organizations in aid of their collective representational rights under Civ. Serv. Law §§ 202 and 203, PERB has consistently held that an employer’s refusal to provide it amounts to an interference with those representational rights and a refusal to negotiate in good faith in violation of Civ. Serv. Law § 209-a.1. See, e.g., County of Erie and Erie County Medical Center Corp (New York State Nurses Assn), 45 PERB ¶ 3036 (2012); City of Rochester (Rochester Police Locust Club), 29 PERB ¶ 3070 (1996); Hornell Cent Sch Dist (Hornell Teachers Assn, Local 2738), 9 PERB ¶ 3032 (1976). PERB has even held that a public employer’s withholding of information related to negotiations can be so provocative of a strike as to mitigate the penalties PERB is authorized to impose on the employee organization for its participation in such unlawful activity. See Service Empls International Union, Local 200, AFL-CIO, 8 PERB ¶ 3037 (1975). Moreover, in Greenburgh No. 11 Union Free Sch Dist (Greenburgh No. 11 Fedn of Teachers), 33 PERB ¶ 3059 (2000), PERB held that a union is entitled to appropriate information at all stages of a contractual grievance procedure, 10 including arbitration. There, the Board rejected the employer’s argument that a union’s right to information terminated with the demand for arbitration. It also held that an employer violates the Taylor Law each time it refuses a union’s request to provide appropriate information, finding it immaterial that the union had not challenged prior refusals. Because Civ. Serv. Law § 203 does not distinguish between a union’s representational rights associated with the administration of grievances concerning benefits and those concerning disciplinary disputes, a union’s collective bargaining rights under Civ. Serv. Law § 203 are invoked in either context. For example, a collective bargaining agreement that contains a grievance procedure covering an employer’s disciplinary actions triggers a contractual dispute over the merits of discipline no less than a dispute over benefits. In the context of resolving grievances concerning either benefits or discipline under a contractual grievance procedure, with adequate information a union could decide not to pursue a grievance or it might attempt to negotiate a settlement. In the context of contractual disciplinary disputes, with adequate information, a union can effectively represent the employee or provide meaningful advice concerning available options short of pursuing the issue to a hearing, or it might endeavor to negotiate a settlement of the charges or penalty. In each context a union’s collective bargaining rights and obligations are directly invoked. See generally 11 Hampton Bays Union Free Sch Dist (Hampton Bays Teachers Assn), 41 PERB ¶ 3008 (2008), confd sub nom. Matter of Hampton Bays Union Free Sch Dist v New York State Pub Empl Relations Bd, 62 AD3d 1066 (3d Dept 2009), lv denied 13 NY3d 711 (2009). Indeed, with adequate information, a union could make an informed, considered decision not to provide representation at all, without running afoul of its duty of fair representation. See Cairo–Durham Cent SchDist (DeOliveira), 47 PERB ¶ 3008 (2014), confd sub nom. Matter of DeOliveira v New York State Pub Empl Relations Bd, 133 AD3d 1010 (3d Dept 2015). Simply put, irrespective of the nature of the contractual dispute or the procedures that the parties have negotiated, access to appropriate information effectuates the public policies expressly stated in the Taylor Law by facilitating effective collective representation and the negotiated resolution of disputes, including disciplinary disputes. See New York City Trans Auth v Transport Workers Union of America, Local 100, AFL–CIO, 99 NY2d 1 (2002). Therefore, the Appellate Division, Third Department, has consistently confirmed PERB’s determinations that a public employer has a Taylor Law duty to provide information to employee organizations in aid of their investigation, settlement negotiations and prosecution or defense of disciplinary disputes in contractual disciplinary proceedings. See Hampton Bays Union Free Sch Dist (Hampton Bays Teachers Assn,), 41 PERB ¶ 3008 (2008), confd sub nom. Matter 12 of Hampton Bays Union Free Sch Dist v New York State Pub Empl Relations Bd, 62 AD3d 1066 (3d Dept 2009), lv denied 13 NY3d 711 (2009); State of New York (OMRDD) (Civ Serv Emps Assn, Inc.), 38 PERB ¶ 3036 (2005), confd sub nom. Matter of Civil Serv Emps Assn, Inc. v New York State Pub Empl Relations Bd, 14 Misc3d 199, (Sup Ct, Albany County, 2006), affd 46 AD3d 1037 (3d Dept 2007); County of Erie and Erie County Sheriff (International Brotherhood of Teamsters, Local 264), 36 PERB ¶ 3021 (2003), confd sub nom. Matter of County of Erie and Erie County Sheriff v New York State Pub Empl Relations Bd, 14 AD3d 14 (3d Dept 2004) – each reaffirmed in Pfau, supra, 69 AD3d 1080. Indeed, PERB has long held that the representational rights associated with disciplinary disputes are among the most important representational rights that a union possesses. See State of New York (Dept of Health and Roswell Memorial Inst) (New York State Pub Emps Fedn), 26 PERB ¶ 3072 (1993). Notably, PERB has held that the Taylor Law right to obtain information in the context of a contractual disciplinary proceeding stands independent of any parallel right to such information under a collective bargaining agreement. See Schuyler-Chemung-Tioga BOCES (Schuyler-Chemung-Tioga Educational Assn), 34 PERB ¶ 3019 (2001) (contractual source of right to information does not override the independent duty to provide it under the Taylor Law). Thus, the Taylor Law right to such information does not derive from the parties’ agreement. 13 See, e.g., Matter of County of Erie and Erie County Sheriff v New York State Pub Empl Relations Bd, supra, 14 AD3d 14 (Third Department held that a union was entitled to information under the Taylor Law in a contractual disciplinary proceeding where the contract did not provide for such a duty). Similarly, the duty to provide information under the Taylor Law is independent of the disclosure provisions under Article 31 of the Civil Practice Law and Rules See, State of New York (OMRDD), supra, 46 AD3d 1037 (Third Department held that a statutory scheme barring disclosure under CPLR Article 31 does not bar the Taylor Law duty to provide information in a contractual disciplinary proceeding). Likewise, PERB has held that the Taylor Law duty to provide information is independent of the public’s right of access to information under the State’s Freedom of Information Law. See County of Yates (Civ Serv Emps Assn, Inc.), 27 PERB ¶ 3080 (1992). Thus, the collective bargaining rights of unions under the Taylor Law, including the right to obtain appropriate information to facilitate that right, are broad. As with any other collective bargaining rights under the Taylor Law, they can be defeated only where the legislative intent to remove the issue from mandatory bargaining is plain and clear or inescapably implicit (Matter of City of Watertown v New York State Pub Empl Relations Bd, 95 NY2d 73, 78-79 (2000) (Court held that union’s collective bargaining rights under the Taylor Law were 14 not overcome by a specific statutory scheme). Nevertheless, a public employer’s duty to provide information to employee organizations to facilitate their collective bargaining rights is not without limitations. Because the right to information under the Taylor Law derives from a union’s collective bargaining rights under Civ. Serv. Law § 203, PERB has held that there is no Taylor Law right to information in aid of litigation in a proceeding that is not cognizable under the Taylor Law, such as a statutory disciplinary hearing under Civ. Serv. Law § 75. See County of Ulster (Ulster County Sheriff’s Emps Assn), 26 PERB ¶ 3008 (1993). PERB reasoned that such litigation does not involve collective negotiations under the Taylor Law. However, in Town of Evans (International Brotherhood of Electrical Workers, Local 41), 37 PERB ¶ 3016 (2004), PERB held that a collective bargaining agreement that incorporated the disciplinary procedures specified in Civ. Serv. Law § 75 made the procedures contractual under its decision in City of Cohoes (Uniform Firefighters of Cohoes, Local 2562), 31 PERB ¶ 3020 (1998), confd sub nom. Uniform Firefighters of Cohoes v Cuevas, 32 PERB ¶ 7026 (Sup Ct, Albany County 1999), affd 276 AD2d 184 (3d Dept 2000), lv denied 96 NY2d 711(2001), which was decided after County of Ulster, supra. Under Town of Evans, the Taylor Law duty to provide information attaches where the statutory procedure is incorporated into the parties’ collective bargaining agreement. Indeed, in Pfau, supra, 69 AD3d 1080 at 1082, 15 the Court observed: that “PERB determined that the disciplinary procedures set forth in the [parties’] agreement expanded on the procedures provided by the Rules of the Chief Judge (see 22 NYCRR 25.29) and, therefore, the disciplinary procedures should be considered as contractual ones rather than arising from statutory or regulatory provisions.” Accord, Town of Evans, supra, 37 PERB ¶ 3016. PERB has not had the occasion to determine whether a union is entitled to information in furtherance of its collective bargaining rights concerning its representation of employees in a unilaterally imposed non-statutory regulatory proceeding. But see Newark Valley Cent Sch Dist (Newark Valley Cardinal Bus Drivers), 24 PERB ¶ 3037 (1991), confd sub nom. Newark Valley Cent Sch Dist v. New York State Pub Empl Relations Bd, 83 NY2d 315 (1994) (This Court observed that unions’ collective bargaining rights under the Taylor Law’s statutory scheme are not defeated by regulations that are not mandated by law or public policy); Newburgh Enlarged City Sch Dist (Newburgh Teachers Assn), 21 PERB ¶ 3036 (1988) (adopting an ALJ’s analysis in Avon Cent Sch Dist [Avon Teachers Assn], 20 PERB ¶ `4564 [1987], PERB held that a regulation did not override an employer’s statutory collective bargaining obligations under the Taylor Law). Moreover, PERB has held that a union’s right to information is balanced by the “rules of reasonableness, including the burden upon the employer to provide 16 the information, the availability of the information elsewhere, the necessity therefore, the relevancy thereof and, finally, that the information supplied need not be in the form requested as long as it satisfies a demonstrated need” (Board of Educ of the City Sch Dist of the City of Albany [Albany Pub Sch Teachers Assn], supra, 6 PERB P 2012, at p. 3030). Accord, State of New York (GOER) (New York State Inspection, Sec & Law Enft Emps, Dist Council 82), 25 PERB ¶ 3078 (1992), confd sub nom. New York State Inspection, Sec & Law Enft Emps, Dist Council 82 v Kinsella, 197 AD2d 341 (3d Dept 1994); State of New York (Division of State Police) (Police Investigators Assn), 30 PERB ¶ 3037 (1997); County of Erie and Erie County Medical Center Corp (New York State Nurses Assn), supra, 45 PERB ¶ 3036 (2012). BCB applied that standard here. By reason of the foregoing, PERB respectfully submits that BCB’s construction of the NYCCBL is substantially equivalent to PERB’s construction of the Taylor Law. The City’s argument that a union’s right to information terminates with the conclusion of negotiations for a collective bargaining agreement is contrary to the policies of the Taylor Law and against the overwhelming weight of precedent regarding such rights, including Pfau, on which the City principally relies. Indeed, a union’s access to appropriate information related to negotiations and contract administration is so critical to its ability to fulfill its representational rights and obligations that if BCB were to have adopted 17 the position asserted by the City, PERB may have been compelled to challenge that conclusion pursuant to its authority under Civ. Serv. Law § 212.2. In light of BCB’s determination, PERB has no occasion to consider such a challenge, submitting, instead, this amicus brief in support of BCB’s determination. Accordingly, PERB respectfully submits that the Appellate Division properly confirmed BCB’s determination that the City had to provide appropriate information to NYSNA that NYSNA requested in aid of its representation of unit employees in a contractual disciplinary proceeding. POINT II THE DUTY TO PROVIDE INFORMATION IN DISCIPLINARY DISPUTES UNDER THE NYCCBL IS NOT DIMINISHED BY THE DECISION OF THE APPELLATE DIVISION, THIRD DEPARTMENT, IN MATTER OF PFAU V NEW YORK STATE PUB EMPL RELATIONS BD., 69 AD3d 1080 (3D DEPT 2010) A. Pfau is distinguishable from the instant matter in material respects. In deferring to BCB’s construction of the NYCCBL, the First Department rejected the City’s argument that it had no duty to provide the requested information to NYSNA pursuant to the holding in Pfau, supra, 69 AD3d 1080. In Pfau, the Court reaffirmed three of its own decisions holding that unions are entitled to information in aid of their representation of employees in contractual 18 disciplinary proceedings, but annulled PERB’s determination that a union was entitled to such information associated with its representation of employees in UCS’s disciplinary proceeding. See State of New York Unified Court System (District Council 37), 41 PERB ¶ 3009 (2008), anulled sub nom. Pfau v New York State Pub Empl Relations Bd, 24 Misc3d 260 (Sup Ct Albany County 2009), affd Pfau, supra. However, PERB respectfully submits that Pfau is distinguishable from the instant matter in material respects. As correctly observed by the First Department, the NYCCBL, unlike the Taylor Law at issue in Pfau, expressly requires covered entities, such as the City, to provide to employee organizations, such as NYSNA, information that is “normally maintained in the regular course of business, reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining” (NYCCBL § 12-306 [c] [4]). While true, PERB respectfully submits that that distinction is not entirely dispositive. As addressed in Point I, supra, an employer’s duty to provide information to a union in association with its collective bargaining rights under the Taylor Law derives from the public policies giving rise to the union’s collective bargaining rights under Civ. Serv. Law §§ 202 and 203. PERB respectfully submits that the holding in Pfau is distinguishable from the instant matter on other grounds. As discussed below, PERB contends that the 19 holding in Pfau is predicated on the Third Department’s understanding that the disciplinary procedure at issue there was not a contractual procedure that would give rise to a Taylor Law duty to provide information to a union in furtherance of its collective representational rights. Any other reading of Pfau would be inconsistent with the Court’s express reaffirmation of its own decisions in Hampton Bays, supra, 62 AD3d 1066, State (OMRDD), supra, 46 AD3d 1037, and County of Erie and Sheriff, supra, 14 AD3d 14, where the Court confirmed PERB’s determinations that unions were entitled to information in aid of their representation of employees in contractual disciplinary proceedings. Here, in contrast to Pfau, there is no dispute that the underlying disciplinary procedure is a contractual procedure cognizable under the Taylor Law. Therefore, the First Department properly rejected the City’s arguments based on Pfau. The Court correctly deferred to BCB’s determination that NYSNA had a right under the NYCCBL to obtain appropriate information associated with its representation of an employee in the contractual proceeding, as in Hampton Bays, State (OMRDD), and County of Erie and Sheriff, supra. To further illustrate the distinction between Pfau and the instant matter, in Pfau, the Third Department observed that “there is no general right to disclosure in a disciplinary proceeding.” Pfau, supra, 69 AD3d at 1082 (emphasis added). In support, the Court relied on Matter of Utica City School Dist. v Fehlhaber, 59 20 AD3d 957 (4th Dept 2009) (involving a disciplinary proceeding under Civ. Serv. Law § 75), Matter of Connolly v Williams, 210 AD2d 19 (1st Dept 1994) (involving an individual’s request for information in a disciplinary proceeding conducted by UCS), and Matter of Sinha v Ambach, 91 AD2d 703 (3d Dept 1982) (involving the notice provisions applicable to a professional disciplinary proceeding under Public Health Law § 230). However, none of those decisions addressed a union’s specific right to information in furtherance of its collective representational rights under the Taylor Law, as in Hampton Bays, State (OMRDD), and County of Erie and Sheriff, supra – each reaffirmed in Pfau. Thus, the Court did not reject the proposition that there is a specific right to such information under the Taylor Law in a contractual disciplinary proceeding. Necessarily, the Court considered UCS’s disciplinary proceedings to be something other than contractual. Indeed, in analyzing the issues in Pfau, the Court emphasized that “PERB acknowledged that if the disciplinary proceeding had been held pursuant to a statute, such as Civil Service Law § 75, there would have been no right to prehearing disclosure.” Pfau, supra, 69 AD3d at 1082. Accord, County of Ulster, supra, 26 PERB ¶ 3008. Thus, in contrast to the contractual disciplinary procedure at issue here, Pfau turns on the Court’s understanding that the disciplinary proceeding at issue there was not cognizable under the Taylor Law, as in Fehlhaber, Williams, and Ambach, supra. Accord, 21 County of Ulster, supra. Again, any other reading of Pfau would be inconsistent with its reaffirmation of its own holdings in Hampton Bays, State (OMRDD) and County of Erie and Sheriff, supra. Here, there is no dispute that the parties’ disciplinary procedure is contractual. Accordingly, PERB respectfully submits that the holding in Pfau is not controlling in the instant matter. Therefore, Pfau does not diminish NYSNA’s right to information under the NYCCBL as construed by BCB. B. The holding in Pfau should be confined to the facts and circumstances of that matter. PERB did not seek leave to appeal from the Third Department’s determination that a union representing UCS’s employees had no Taylor Law right to information in aid of its representation of two employees under UCS’s disciplinary procedure in Pfau. Rather, PERB has held that Pfau is applicable only to the unique facts of that case. See County of Montgomery (Civ Serv Emps Assn), 44 PERB ¶ 3045 (2011) (distinguishing Pfau, PERB held that a union is entitled to information in aid of its representation of a unit employee in a contractual disciplinary proceeding, as in Hampton Bays, State (OMRDD) and County of Erie and Sheriff, supra). However, to the extent that Pfau may be read to mean that a union is not, as a matter of law, entitled to information in aid of its representational rights in 22 contractual disciplinary proceedings absent a contractual source of right, or that it stands for the proposition that no unions have a Taylor Law right to information in any non-statutory disciplinary proceedings, PERB respectfully submits that this Court should not follow Pfau. First, PERB respectfully submits that Pfau should not be read to mean that a union has no Taylor Law right to information in aid of its collective representational rights in contractual disciplinary proceedings absent a contractual source of right. Such a reading would be inconsistent with Hampton Bays, State (OMRDD) and County of Erie and Sheriff, supra, where the at-issue right to information derived from the Taylor Law, not the parties’ collective bargaining agreements. Indeed, in County of Erie and Sheriff, the Court specifically held that a union was entitled to information in aid of its representation of an employee in a contractual disciplinary dispute despite the fact that the parties’ collective bargaining agreement did not provide for access to the at-issue information. Second, to the extent that Pfau may be read to hold that unions are not entitled to obtain information in aid of their representational rights in any contractual disciplinary proceeding, that reading would effectively overturn Hampton Bays, State (OMRDD) and County of Erie and Sheriff, supra., which Pfau expressly reaffirmed. Likewise, it would effectively annul decades of PERB’s precedents holding the contrary (see Point I supra). Therefore, such a 23 reading of Pfau would disrupt the settled expectations of public employers and employee organizations throughout the state pursuant to which they have conducted their negotiations and contract administration under Civ. Serv. Law § 203 assisted by the good faith exchange of relevant information to facilitate the effective and expeditious resolution of disputes.2 Indeed, such a reading of Pfau would impair the public policies under the Taylor Law that gave rise to the duty to provide appropriate information in the first place, as discussed in Point I. PERB respectfully submits that this Court should not adopt such a broad reading of Pfau. Although in Pfau the Court observed that it was irrational for PERB to posit that the right to obtain information in a contractual disciplinary dispute inured to the exclusive benefit of unions and not individual employees or their private attorneys, the availability of such information to individuals under the Taylor Law was not before PERB, Supreme Court or the Third Department in Pfau. There, as here, the employer denied a union’s request for information in aid of its collective representational rights under Civ. Serv. Law §§ 202 and 203. Indeed, under Civ. Serv. Law § 204, recognized or certified collective bargaining agents are granted the exclusive right to engage in collective negotiations with public employers. 2 The many decisions of the Board cited herein regarding this issue represent a minority of the decisions issued by PERB’s Administrative Law Judges on the same subject. The decisions of PERB’s Administrative Law Judges are final and binding on the parties unless exceptions are filed with the Board. See PERB’s Rules of Procedure, 4 NYCRR § 213.6 (b). 24 Thus, individuals have no collective representational rights under Civ. Serv. Law §§ 202 and 203. Therefore, PERB respectfully submits that Pfau should not be read to mean that unions have no right to information in aid of their collective representational rights simply because individuals do not have comparable collective representational rights under the Taylor Law.3 Finally, the First Department accurately observed in the instant matter that the delay in obtaining information under the Taylor Law – of great concern in Pfau – is occasioned by the administrative proceedings necessary to enforce the Taylor Law right to appropriate information upon an employer’s refusal to provide it, not the Taylor Law duty to provide it in the first place. Accord, Hampton Bays Union Free Sch Dist (Hampton Bays Teachers Assn), 41 PERB ¶ 3008 (2008), confd Hampton Bays, supra; Greenburgh No. 11 Union Free Sch Dist (Greenburgh No. 11 Fedn of Teachers), supra, 33 PERB ¶ 3059. Accordingly, contrary to the City’s arguments to this Court, PERB respectfully submits that Pfau is limited to the specific unique factual context at issue there and does not constitute a carte blanche rejection of PERB’s precedents 3 PERB has never determined whether an individual employee, whether or not represented by private counsel, has a right to obtain information in aid of his or her assertion or defense of rights in a contractual proceeding. But see New York City Transit Authority(Little), 37 PERB ¶ 4523 (2004) (an ALJ held: “The obligation [to provide information] . . . is only to provide an employee's collective bargaining representative with the requested information, because it is only that entity which is charged under the Act with the exclusive duty to administer the contract”). However, a decision of an ALJ is not binding on the Board. See, e.g., County of Nassau, 48 PERB ¶ 3023, 3089, n. 89 (2015). holding that a union is entitled to information in aid of its representational rights and obligations concerning disciplinary disputes in a contractual disciplinary proceeding. Therefore, PERB respectfully submits that the First Department properly held that the City' s duty to provide information to NYSNA associated with NYSNA's collective representational rights in a contractual disciplinary dispute und the NYCCBL is not diminished by Pfau. CONCLUSION The Court should affirm the decision of the Appellate Division, First Department. October 27, 2016 Respectfully submitted, DAVID P. QUINN Attorneys for Amicus Curiae NYS Public Employment Relations Board PO Box 2074 Empire State Plaza Agency Bldg. 2, 20th floor Albany, NY 12220-0074 Telephone: (518) 457-2678 Facsimile: (51 -457-2664 DAVID P. QUINN 25 STATE OF NEW YORK) ) COUNTY OF ALBANY ) APL-2015-282 (ES) Douglas Lodge, being duly sworn, deposes and says that deponent is over the age of 18 years and an employee of the New York State Public Employment Relations Board. That on October 28, 2016, deponent served two copies ofthe within Amicus Brief, APL-20 15-282, by first class mail upon: ZACHARY W. CARTER, ESQ. Corporation Counsel of the City ofNew York I 00 Church Street New York, New York I 0007 COHEN, WEISS AND SIMON LLP New York State Nurses Association and Karen A. Ballard, as the [Former) President ofthe New York State Nurses Association 330 West 42nd Street, 25th Floor New York, New York I 0036 STEVEN E. STAR, ESQ., GENERAL COUNSEL NYC BOARD OF COLLECTIVE BARGAINING Board of Collective Bargaining of the City ofNew York and Marlene Gold, Chair of the Board of Collective Bargaining I 00 Gold Street, 4th Floor New York, New York 10038 at the address( es) designated by depositing two true copies thereof enclosed in a postpaid properly addressed wrapper in an official depository under the exclusive care and custody of the United States Post Office Department within the State ofNew York. ~fo ~;'k ~ 7
