In the Matter of City of New York, et al., Appellants,v.New York State Nurses Association, et al., Respondents.BriefN.Y.April 25, 2017To be Argued by: ABIGAIL R. LEVY (Time Requested: 30 Minutes) APL 2015-00282 New York County Clerk’s Index No. 401425/11 Court of Appeals of the 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 City 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. BRIEF FOR RESPONDENTS-RESPONDENTS STEVEN E. STAR, ESQ., GENERAL COUNSEL NYC BOARD OF COLLECTIVE BARGAINING Attorney for Respondents-Respondents Board of Collective Bargaining of the City of New York and Marlene Gold, Chair of the Board of Collective Bargaining 100 Gold Street, 4th Floor New York, New York 10038 Tel.: (212) 306-7160 Fax: (212) 306-7167 Date Completed: August 9, 2016 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 QUESTION PRESENTED ........................................................................................ 4 STATEMENT OF THE CASE .................................................................................. 4 A. Statutory Background ............................................................................ 4 B. Procedural History and the Board’s Decision ....................................... 6 1. The Facts Before the Board ........................................................ 6 2. The Board’s Decision ................................................................. 8 3. The Article 78 Proceedings ....................................................... 13 ARGUMENT ........................................................................................................... 13 POINT I THE APPELLATE DIVISION PROPERLY REINSTATED THE BOARD’S DECISION BECAUSE IT WAS RATIONAL .......................... 13 A. Standard of Review ............................................................................. 14 B. The Board’s Interpretation of NYCCBL § 12-306(c)(4) Has a Rational Basis and is Consistent with the Text of the Statute ............ 17 POINT II THE CITY’S ARGUMENTS MUST BE REJECTED BECAUSE THEY FAIL TO OFFER A REASONABLE BASIS TO CONCLUDE THAT THE BOARD’S INTERPRETATION OF ITS ENABLING STATUTE WAS IMPROPER ................................................. 23 A. The City Seeks to Substitute its Own Interpretation of the NYCCBL for that of the Board ........................................................... 23 B. The City’s Contention that the Decision Will Lead to Protracted Discovery and Delay Has No Basis in Fact ....................... 30 C. The Pfau Decision is Distinguishable ................................................. 37 CONCLUSION ........................................................................................................ 44 ii TABLE OF AUTHORITIES Page(s) Cases: Bd. of Educ. of the City Sch. Dist. of the City of NY, 42 PERB ¶ 4570 (2009) ........................................................................... 12, 27 Bd. of Educ., City School Dist. of Albany, 6 PERB ¶ 3012 (1973) ................................................................................... 38 CIR, 35 OCB 8 (BCB 1985) ........................................................................ 9, 19, 26 CIR, 49 OCB 22 (BCB 1992) ................................................................................ 35 City of New York v. New York State Nurses Association, 130 A.D.3d 28 (1st Dep’t 2015) .............................................................passim COBA, 63 OCB 9 (BCB 1999) .................................................................................. 27 COBA, 75 OCB 17 (BCB 2005) ............................................................................ 9, 20 County of Erie (Erie County Sheriff), 36 PERB ¶ 3021 (2003) ................................................................................. 21 DC 37, L. 376, 1 OCB2d 37 (BCB 2008) ................................................................................ 8 DC 37, L. 1549, 3 OCB2d 2 (BCB 2010) ................................................................................ 16 Henry ex rel. Chanry Communications v. Wetzler, 82 N.Y.2d 859 (1993), cert. denied, 511 U.S. 1126 (1994) .......................... 24 Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451 (1980) .................................................................................... 16 Matter of Bd. of Educ. of City School Dist., City of NY v. NYS Pub. Empl. Relations Bd., 75 N.Y.2d 660 (1990) .................................................................................... 15 iii Matter of Chenango Forks Cent. School Dist. v. NYS Pub. Empl. Relations Bd., 21 N.Y.3d 255 (2013) .................................................................................... 14 Matter of City of Middletown v. City of Middletown Police Benevolent Assn., 81 A.D.3d 1238 (3d Dep’t 2011) ................................................................... 18 Matter of City of New York v. Intl. Bhd. of Teamsters, 301 A.D.2d 471 (1st Dep’t 2003) .................................................................. 15 Matter of City of New York v. Lieutenants Benevolent Assn., 285 A.D.2d 329 (1st Dep’t 2001) .................................................................. 15 Matter of City of Watertown v. NYS Pub. Empl. Relations Bd., 95 N.Y.2d 73 (2000) ...................................................................................... 14 Matter of Civ. Serv. Empls. Assn. v. State of NY Pub. Empl. Relations Bd., 14 Misc. 3d 199 (Sup. Ct. Albany County 2006), aff’d, 46 A.D.3d 1037 (3d Dep’t 2007) ............................................................passim Matter of Connelly v. Williams, 210 A.D.2d 19 (1st Dep’t 1994) .................................................................... 40 Matter of County of Erie v. NYS Pub. Empl. Relations Bd., 14 A.D.3d 14 (3d Dep’t 2004) ................................................................passim Matter of Dist. Council 37 v. City of New York, 22 A.D.3d 279 (1st Dep’t 2005) .............................................................. 14, 15 Matter of Hampton Bays Union Free School Dist. v. Pub. Empl. Relations Bd., 62 A.D.3d 1068 (3d Dep’t), lv. denied, 13 N.Y. 711 (2009) .................passim Matter of Inc. Vil. of Lynbrook v. NYS Pub. Empl. Relations Bd., 48 N.Y.2d 398 (1979) .................................................................................... 17 Matter of Leibart v. NYS Off. of Temporary & Disability Assistance, 38 A.D.3d 441 (1st Dep’t 2007) .................................................................... 24 Matter of Levitt v. Bd. of Collective Bargaining, 79 N.Y.2d 120 (1992) ........................................................................ 14, 15, 17 Matter of NYC Dept. of Sanitation v. MacDonald, 87 N.Y.2d 650 (1996) .................................................................................... 15 Matter of Patrolmen’s Benevolent Assn. v. NYS Pub. Empl. Relations Bd., 6 N.Y.3d 563 (2006) ...................................................................................... 18 iv Matter of Pfau v. Public Employment Relations Bd., 69 A.D.3d 1080 (3d Dep’t 2010) ............................................................passim Matter of Rosen v. Pub. Empl. Relations Bd., 72 N.Y.2d 42 (1988) ...................................................................................... 15 Matter of Sinha v. Ambach, 91 A.D.2d 703 (3d Dep’t 1982) ..................................................................... 40 Matter of Springer v. Bd. of Educ. of City School Dist. of City of NY, 27 N.Y.3d 102 (2016) .................................................................................... 26 Matter of Town of Islip v. NYS Pub. Empl. Relations Bd., 23 N.Y.3d 482 (2014) .................................................................................... 14 Matter of Westchester Joint Water Works v. Assessor of City of Rye, 2016 N.Y. LEXIS 1650 (N.Y. Ct. App. June 9, 2016), 2016 N.Y. Slip Op. 04438 ............................................................................. 26 Matter of Yarbough v. Franco, 95 N.Y.2d 342 (2000) .................................................................................... 25 Matter of Yonkers Gardens Co. v. State Div. of Hous. and Community Renewal, 51 N.Y.2d 966 (1980) .................................................................................... 24 New York City Transit Authority v. New York State Public Employment Relations Board, 8 N.Y.3d 226 (2007) ................................................................................ 15, 16 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)....................................................................................... 16 NYSNA, 3 OCB2d 36 (BCB 2010) .................................................................. 12, 22, 27 NYSNA, 4 OCB2d 20 (BCB 2011) ................................................................................ 1 NYSNA, 8 OCB2d 17 (BCB 2015) .............................................................................. 35 PBA, 79 OCB 6 (BCB 2007) .............................................................................. 9, 20 Rizzo v. NYS Div. of Hous. & Community Renewal, 6 N.Y.3d 104 (2005) ...................................................................................... 25 v Rocovich v. Consol. Edison Co., 78 N.Y.2d 509 (1991) .................................................................................... 26 SSEU, L. 371, 1 OCB2d 11 (BCB 2008) ........................................................................ 27-28 State of New York (Dept. of Corr. & Community Supervision), 49 PERB ¶ 4536 (ALJ, Apr. 15, 2016) .......................................................... 37 State of New York (OMRDD), 38 PERB ¶ 3036 (2005) ................................................................................. 20 Town of Wallkill Police Benevolent Assn., 42 PERB ¶ 3006 (2009) ................................................................................. 32 Utica City School Dist. v. Fehlhaber, 59 A.D.3d 957 (4th Dep’t 2009).................................................................... 40 Statutes & Other Authorities: Taylor Law § 202 ..................................................................................................... 16 Taylor Law § 212 ....................................................................................................... 5 Taylor Law § 212(2) .................................................................................................. 5 CPLR Article 78 ....................................................................................... 1, 13, 14, 24 CPLR § 7803 ............................................................................................................ 14 CPLR § 7803(3) ....................................................................................................... 14 CSL § 75 ...........................................................................................................passim CSL § 75(2) .............................................................................................................. 41 CSL § 75(3) .............................................................................................................. 41 CSL § 76(4) .............................................................................................................. 42 CSL § 209-a(1)(g) .................................................................................................... 16 CSL, Article 14, § 212 ............................................................................................... 5 Executive Order 32 (July 25, 1979) ......................................................................... 42 New York City Charter Chapter 54, § 1171 .............................................................. 4 NYCCBL § 12-306(a)(1) ..................................................................................passim vi NYCCBL § 12-306(a)(4) ..................................................................................passim NYCCBL § 12-306(b)(3) ......................................................................................... 29 NYCCBL § 12-306(c) .......................................................................................passim NYCCBL § 12-306(c)(4) ..................................................................................passim NYCCBL § 12-309(a) ................................................................................................ 5 OATH’s Rules of Practice, Subch. C, § 1-33 .......................................................... 43 OATH’s Rules of Practice, Subch. C, § 1-33 (a) ..................................................... 43 OATH’s Rules of Practice, Subch. C, § 1-33 (b) .................................................... 43 OATH’s Rules of Practice, Subch. C, § 1-33 (c) ..................................................... 43 McKinney’s Cons. Laws of N.Y., Book 1, Statutes, § 98 ....................................... 26 Black’s Law Dictionary, 8th Ed. ............................................................................... 31 1 PRELIMINARY STATEMENT Respondent-Respondent, the New York City Board of Collective Bargaining (the “Board”),1 submits this brief in opposition to the appeal taken by Petitioners- Appellants, the City of New York, the New York City Human Resources Administration (“HRA”), James Hanley, as the Commissioner of the New York Office of Labor Relations, and the New York City Office of Labor Relations (collectively, the “City”), from a May 26, 2015 Decision and Judgment of the Appellate Division, First Department, in a CPLR Article 78 proceeding that the City commenced for review of an April 28, 2011 final administrative decision and order issued by the Board in NYSNA, 4 OCB2d 20 (BCB 2011) (“Decision”).2 The underlying case was initiated by the New York State Nurses Association (“NYSNA”), which filed an improper practice petition before the Board after HRA denied its request for information “relevant and necessary for its representation” at hearings for two of its members who had received disciplinary charges. (R. 373.) In its Decision, the Board determined that by refusing to comply with NYSNA’s information request, HRA had violated § 12-306(c)(4) of the New York City 1 Marlene Gold, a respondent who was sued solely in her official capacity as Chair of the Office of Collective Bargaining, retired in January 2014. Susan Panepento assumed the position of Chair in March 2015. 2 All Board (“BCB”) decisions may be found on LEXIS in the “Administrative Materials” library under the source heading “New York Public Employment Relations Board”. Board decisions are also located on the OCB website at http://www.ocb-nyc.org/general-info/search-our-cases/. 2 Collective Bargaining Law (“NYCCBL”), which provides that the duty of a public employer to bargaining collectively in good faith “shall include the obligation to …furnish to the other party, upon request, 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.” It thus held that HRA thus committed an improper practice under NYCCBL § 12-306(a)(1) and (4). This Court should affirm. As the Appellate Division properly held in City of New York v. New York State Nurses Association, 130 AD3d 28 (1st Dept 2015), the Board’s Decision that the duty to furnish information embodied in NYCCBL § 12- 306(c)(4) applies to data relevant to contractual disciplinary grievances instituted pursuant to the parties’ collective bargaining agreement “had a rational basis and was not arbitrary and capricious.” Id. at 34. The Appellate Division found that the Decision was consistent with Board precedent and related jurisprudence, its statutory interpretation was reasonable, and its remedy was narrowly tailored to comply with the statutory provision. The City offers no reasonable legal or policy basis for its assertion that parties subject to the Board’s jurisdiction should not be entitled to obtain information in the context of disciplinary grievances. Rather, for the first time, it offers an entirely new interpretation of the statutory provision at issue and asks that 3 this Court substitute the City’s interpretation for that of the Board. Yet, the City’s interpretation of NYCCBL § 12-306(c)(4) would write out a critical portion of the statutory language, rendering it meaningless, and would reject decades of consistent Board, PERB, and appellate court precedent. The City’s assertion that furnishing information relating to disciplinary grievances will lead to wide-reaching “discovery” and delay in the grievance process is purely speculative and lacks any support in the record. Similarly, its reliance on the Third Department’s decision in Matter of Pfau v. Public Employment Relations Bd., 69 AD3d 1080 (3d Dept 2010) (“Pfau”), is misplaced. In Pfau, the Third Department affirmed a series of decisions upholding the Taylor Law right to information in the context of disciplinary grievances. Id. at 1082. The finding in Pfau, that the right to information in disciplinary grievances did not extend to a specific statutory disciplinary proceeding, is consistent with the Decision concerning a disciplinary grievance, and in no way compels the Board to categorically exclude disciplinary grievances from the duty to provide information under the NYCCBL. 4 QUESTION PRESENTED Did the Appellate Division correctly hold that the Board rationally determined that the disclosure of data relevant to contractual grievance proceedings regarding employee discipline is encompassed in a party’s obligations under NYCCBL § 12-306(c)(4) “to furnish to the other party, upon request, 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”? ANSWER: Yes. STATEMENT OF THE CASE A. Statutory Background The Board is a neutral adjudicative body that was created pursuant to Chapter 54 of the New York City Charter (“Charter”).3 It is comprised of two City representatives appointed by the City’s Mayor, two Labor representatives designated by the municipal labor unions, and three Impartial members, who are elected by a unanimous vote of the City and Labor members. See Charter Chapter 54, § 1171. 3 The Office of Collective Bargaining is comprised of two boards: the Board named in this matter, and the Board of Certification. 5 The Board was created, in part, to administer the NYCCBL,4 the statute that regulates the conduct of labor relations between the City and its municipal unions. The NYCCBL also sets forth the Board’s powers and duties. Section 12-309(a) of the NYCCBL vests the Board with the power and duty “to prevent and remedy improper public employer and public employee organization practices, as such practices are listed in section 12-306 of [the NYCCBL].” NYCCBL §12-306(a)(1) and (4) provide that it shall be an improper practice for a public employer “to interfere with, restrain, or coerce public employees in the exercise of their rights” to form join or assist public employee organizations, and “to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees.” The instant dispute pertains to the Board’s interpretation of NYCCBL § 12- 306(c), which provides, in pertinent part: Good faith bargaining. The duty of a public employer and certified or designated employee organization to bargain collectively in good faith shall include the obligation: 4 The NYCCBL was enacted by the New York City Council in the exercise of a local option set forth in Article 14, § 212 of the New York State Civil Service Law (“CSL”), a portion of the Public Employees’ Fair Employment Act (“Taylor Law”). Section 212 of the Taylor Law provides that certain local governments may enact their own labor relations laws, provisions, and procedures so long as those local provisions are substantially equivalent to the State law. Subdivision (2) of § 212 explicitly authorizes the City to enact and maintain its own local labor relations law. 6 *** (4) to furnish to the other party, upon request, 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. Id. B. Procedural History and the Board’s Decision 1. The Facts Before the Board On or about October 26, 2009, HRA charged two employees with misconduct and/or insubordination, including falsification of time records and lying to a supervisor. Both sets of charges proceeded through the multi-step disciplinary grievance process provided for by the parties’ collective bargaining agreement (“Agreement”).5 On December 4, 2009, NYSNA sent letters to HRA requesting that it provide the Union with the following information relating to the grievants’ termination: (A) copies of the agency policies at issue; (B) the computerized time records allegedly supporting the charges; (C) copies of witness statements; (D) copies of the City’s records on specified dates for specific named patients; (E) an explanation of the specific alleged violations by the grievants; and (F) production 5 The Agreement defines the term “Grievance” to mean, among other things: “A claimed wrongful disciplinary action taken against an employee.” (R. 60-61.) 7 of witnesses for questioning by the Union. (R. 39.) The Union contended that this information was “relevant and necessary for its representation of [the grievants] at the Hearings on the charges.” (R. 28.) The Union requested that the information be delivered to its office by December 9, 2009, five days prior to the scheduled hearing dates. HRA did not provide the requested information to the Union. At the Step I hearings on December 14, 2009, NYSNA reiterated its requests to the hearing officers and the HRA Office of Staff Resources Director, all of whom acknowledged awareness of NYSNA’s requests. (R. 46-47, 123-124.) Again, HRA did not provide the information to the Union nor did it respond to the requests. On December 29, 2009 and January 15, 2010, HRA issued letters to the two grievants stating that certain of the charges brought against them had been substantiated and recommending termination. The grievants subsequently executed waivers of their rights pursuant to CSL § 75, and elected to proceed through the grievance procedure set forth in the Agreement. (R. 30.) On February 16, 2010, NYSNA filed a verified improper practice petition against the City and HRA alleging that they committed an improper practice, in violation of NYCCBL § 12-306(a)(1) and (4), by refusing to supply the Union with information it requested pertaining to disciplinary charges brought against two of its members. 8 2. The Board’s Decision The issue before the Board was “whether the City and HRA’s refusal to comply with a request for information alleged to be relevant to and reasonably necessary for contract administration violated NYCCBL § 12-306(c)(4) and thus constituted an improper practice under NYCCBL § 12-306(a) (1) and (4).” (R. 33- 34.) In resolving this issue, the Board stated that it “must determine whether that statutory right pertains to disciplinary grievance processes, and, if so, whether the information request made falls within the scope of information relevant to and reasonably necessary for administering the contract at issue here.” (R. 34.) The Board found “that § 12-306(c)(4) does pertain to disciplinary grievances, that certain of the information requested does fall within that duty, and that the refusal to provide such information was, accordingly, unjustified and constituted an improper practice.” (Id.) Pursuant to NYCCBL § 12-306(c)(4), the Board noted that it “has repeatedly held that the duty to bargain in good faith includes the obligation to furnish to the other party, upon request, 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.” (R. 34.) (quoting DC 37, L. 376, 1 OCB2d 37, at 4 (BCB 2008)). The Board held that this duty applies where “the information requested is relevant 9 to and reasonably necessary for purposes of collective negotiations or contract administration.” (R. 34.) (quoting CIR, 35 OCB 8, at 14 (BCB 1985)). It also reaffirmed its prior decisions holding that “a failure to supply information within the scope of that subdivision, whether for purposes of collective bargaining or contract administration, necessarily constitutes a violation of the duty to bargain in good faith pursuant to NYCCBL § 12-306(a)(4).” (Id.) (quoting COBA, 75 OCB 17, at 8 (BCB 2005)). The Board reasoned that “since the denial of information to which the Union is entitled renders the Union less able [to] effectively [] represent the interests of the employees in the unit, the employer’s failure to supply the information also interferes with the statutory right of employees to be represented, in violation of NYCCBL § 12-306(a)(1).” (Id.) (quoting COBA, 75 OCB 17, at 8). Thus, the Board explained, a violation of the duty to provide information relevant to and reasonably necessary to contract administration violates both NYCCBL §§ 12-306(c)(4) and 12-306(a)(1). The Board explained that “[t]his duty extends to information relevant to and reasonably necessary [for] the administration of the parties’ agreements, such as processing grievances.” (R. 35.) (quoting PBA, 79 OCB 6, at 14 (BCB 2007)) (other citations omitted). Thus, consistent with its prior rulings, the Board found that “the Union had the right to request information that is relevant to and 10 reasonably necessary for consideration of a potential grievance, or to determine if an improper practice occurred, as a matter of contract administration.” (R. 35.) In the Decision, the Board addressed and rejected the City’s claim that the Third Department’s decision in Pfau “requires [the Board] to find a categorical exclusion from the duty to provide information relating to contractual grievance administration for disciplinary grievances.” (R. 36.) The Board distinguished Pfau because the Third Department ruled on a disciplinary proceeding it deemed to be statutory, not contractual. In Pfau, the court addressed a hybrid disciplinary process created by the Rules of the Chief Judge and supplemented by procedures in the parties’ collective bargaining agreement. See Pfau, 69 AD3d at 1082-83. Whereas the New York Public Employment Relations Board (“PERB”) found that the hybrid process should be considered negotiated rather than statutory, and accorded the right to information under the Taylor Law, the Third Department disagreed on the facts presented, finding that the proceeding should be treated as one arising under statute, thus the right to information under the Taylor Law did not attach. The Board found Pfau inapplicable, because the disciplinary process before it was contractual. In reaching its conclusion, the Board also noted that the Pfau Court approvingly cited its own prior cases confirming PERB’s decisions upholding the obligation to provide information requested in relation to contractual 11 disciplinary procedures. See Pfau, 69 AD3d at 1082; see also Matter of Hampton Bays Union Free School Dist. v. Pub. Empl. Relations Bd., 62 AD3d at 1068-1069 (3d Dept), lv denied, 13 NY 711 (2009) (“Hampton Bays”). The Board found that the Third Department cases cited in Pfau are consistent with and support the Board’s Decision. (R. 37.) The Board then turned to the specific facts before it. Consistent with PERB and the Third Department, the Board found that the “absence of a separate contractual obligation to provide information in a disciplinary grievance procedure does not waive the statutory duty to provide such information.” (R. 38.) (citing Matter of County of Erie v. NYS Pub. Empl. Relations Bd., 14 AD3d 14, 18 (3d Dept 2004) (“Erie”). As to NYSNA’s specific information requests, the Board emphasized that the HRA’s obligation to furnish data was not unlimited. Rather, consistent with the text of NYCCBL § 12-306(c)(4), the Board held that the obligation is circumscribed to include only “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.” (R. 38.) The Board found that “[r]equests that seek documents that are irrelevant, burdensome to provide, available elsewhere, confidential, or do not exist, are deemed to fall outside the scope of the duty by the public employer to 12 disclose.” (Id.) (quoting NYSNA, 3 OCB2d 36, at 14 (BCB 2010)) Further, it held that “public employers are not under a duty to respond to requests for specific reasons why an employer engaged in a particular action because these types of requests are not for documents which contain information that will enable the union to negotiate more effectively, but are more in the nature of conclusions to be drawn by the employer.” (R. 39.) (quoting NYSNA, 3 OCB2d 36, at 14). Accordingly, the Board found that certain requests by NYSNA, such as the request that HRA produce witnesses for questioning by the Union, exceeded the scope of information required by NYCCBL § 12-306(c)(4). (R. 41.) It also found that NYSNA’s requests that HRA create documents explaining its decisions to bring specific charges fell outside of that duty, stating “[w]e have previously explained that ‘public employers are not under a duty to respond to requests for specific reasons why an employer engaged in a particular action,’ because such requests seek not data but the employer’s reasoning.” (R. 40.) (quoting NYSNA, 3 OCB2d 36, at 14; Bd. of Educ. of the City Sch. Dist. of the City of NY, 42 PERB ¶ 4570, at 4774 (2009)). In short, the Board found that the refusal to comply with the relevant and proper requests for information constituted improper practices under NYCCBL §12-306(a)(1) and (4). Accordingly, the petition was granted, in part, and denied, in part. (R. 42.) 13 3. The Article 78 Proceedings The City filed an Article 78 petition in the Supreme Court, New York County challenging the Board’s Decision. On May 8, 2012, the Supreme Court denied the Board’s and NYSNA’s motions to dismiss, and subsequently annulled the Board’s Decision. By decision and order dated May 26, 2015, the Appellate Division, First Department, issued a unanimous decision, reversing the Supreme Court and reinstating the Board’s Decision. On October 25, 2015, the Appellate Division granted the City leave to appeal to this Court. ARGUMENT POINT I THE APPELLATE DIVISION PROPERLY REINSTATED THE BOARD’S DECISION BECAUSE IT WAS RATIONAL The issue before the Court is whether the Board’s determination that disciplinary grievances fall within the ambit of § 12-306(c)(4), which encompasses without reservation, information relating to “subjects within the scope of collective bargaining,” was reasonable. As the Appellate Division properly held, the Decision finding that the duty to furnish information embodied in NYCCBL § 12- 306(c)(4) applies in the context of disciplinary grievances instituted pursuant to the 14 parties’ Agreement “had a rational basis and was not arbitrary and capricious.” NYS Nurses Assn., 130 AD3d at 34. A. Standard of Review Under Article 78 of the CPLR, judicial review of an administrative determination is limited to consideration of whether the determination is consistent with lawful procedures, is not arbitrary and capricious, and is a reasonable exercise of the agency’s discretion. See CPLR § 7803; Matter of Town of Islip v. NYS Pub. Empl. Relations Bd., 23 NY 3d 482, 492 (2014); see also, e.g., Matter of Levitt v. Bd. of Collective Bargaining, 79 NY2d 120, 128 (1992) (Board’s determination “should not be upset unless ‘arbitrary and capricious or an abuse of discretion’”) (quoting CPLR § 7803(3)); Matter of Dist. Council 37 v. City of New York, 22 AD3d 279, 283 (1st Dept 2005) (same). See also Matter of City of Watertown v. NYS Pub. Empl. Relations Bd., 95 NY2d 73, 81 (2000) (holding that the courts “may not disturb [PERB’s] determination unless the agency’s ruling is irrational”). When an administrative agency is charged with implementing and enforcing the provisions of a particular statute, courts presume that the agency has developed an expertise with regard to that statute and, accordingly, defer to the judgment of the agency. See Matter of Chenango Forks Cent. School Dist. v. NYS Pub. Empl. Relations Bd., 21 NY3d 255, 265 (2013) (finding that PERB, as the agency charged with implementing the fundamental policies of the Taylor Law, “is 15 presumed to have developed an expertise and judgment that requires us to accept its decisions with respect to matters within its competence”) (internal quotations omitted); Matter of Bd. of Educ. of City School Dist., City of NY v. NYS Pub. Empl. Relations Bd., 75 NY2d 660, 666 (1990). Repeatedly, courts in New York have deferred to the Board’s expertise in applying and interpreting the provisions of the NYCCBL. See, e.g., Matter of NYC Dept. of Sanitation v. MacDonald, 87 NY2d 650 (1996); Matter of Levitt, 79 NY2d at 128; Matter of Dist. Council 37, 22 AD3d at 284; Matter of City of New York v. Intl. Bhd. of Teamsters, 301 AD2d 471 (1st Dept 2003); Matter of City of New York v. Lieutenants Benevolent Assn., 285 AD2d 329 (1st Dept 2001). Thus, the Court’s review is limited to whether the Board’s Decision was “arbitrary and capricious or an abuse of discretion.” Matter of Levitt, 79 NY2d at 128. Contrary to the City’s assertion, de novo review is inappropriate under the circumstances. The City’s reliance upon New York City Transit Authority v. New York State Public Employment Relations Board, 8 NY3d 226 (2007) (“NYCTA”), does not dictate a different result. In NYCTA, this Court had before it a question of “pure statutory construction” rather than an application of statutory language to a factual scenario. 8 NY3d at 231 (quoting Matter of Rosen v Pub. Empl. Relations Bd., 72 NY2d 42, 47-48 (1988)). The Court stated that de novo review was appropriate in NYCTA, where there was a question of statutory construction 16 “dependent only on accurate apprehension of the legislative intent [with] little basis to rely on any special competence” of the administrative agency. Id. at 231 (quoting Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 (1980)). Consequently, the Court found it had no obligation to defer to PERB’s interpretation of the Taylor Law.6 Here, in contrast, the Court is tasked with reviewing the Board’s application of the statute to the facts, without the need to evaluate the legislative intent behind the statutory provision at issue. Thus, the basis for de novo review in NYCTA is not present. In addition, the City provides no evidence of legislative intent in support of its position. Moreover, the Board’s expertise in interpreting the statute over the past forty years is relevant here because it enables the Board to properly consider the record evidence and the plausibility of claims regarding the impact of 6 The issue in NYCTA was whether PERB properly interpreted § 202 of the Taylor Law to provide an employee with a so-called “Weingarten right” to “refuse to submit without union representation to an interview which he reasonably fears may result in discipline”. 8 NY3d at 231 (quoting NLRB v J. Weingarten, Inc., 420 US 251, 256 (1975)). The Court disagreed with PERB, holding that the text and legislative history of the Taylor Law established that a Weingarten right was not granted by the statute. Id. at 232-33. The Court reasoned that the Weingarten right originated from language in the National Labor Relations Act (“NLRA”) that was excluded from the Taylor Law which entitled employees to “engage in . . . concerted activities for the purpose of . . . mutual aid or protection”. Id. at 232. The Court also pointed to legislative history seeking to amend the Taylor Law because it did not provide for a Weingarten right. Id. at 234. As the Board noted in DC 37, L. 1549, 3 OCB2d 2 (BCB 2010), NYCTA was legislatively overruled by an amendment to the Taylor Law. Id. at 19-21. The amendment makes it an improper practice for a public employer “to fail to permit or refuse to afford a public employee the right, upon the employee's demand, to representation by a representative of the employee organization” when the employee may be the subject of a potential disciplinary action. See CSL § 209-a(1)(g). 17 information disclosure on the parties’ ability to effectively, efficiently, and peacefully resolve their labor disputes. As de novo review is inappropriate, the Board’s determination must be upheld because it was not “arbitrary and capricious or an abuse of discretion.” Matter of Levitt, 79 NY2d at 128. B. The Board’s Interpretation of NYCCBL § 12-306(c)(4) Has a Rational Basis and is Consistent with the Text of the Statute The Decision should be affirmed because it was rational and not arbitrary and capricious. Indeed, in deferring to the Board’s determination, the Appellate Court explicitly held that the Board reasonably relied upon its own legal precedent and related jurisprudence, and its “interpretation of the NYCCBL, a statutory provision within its purview and expertise, was sufficiently reasonable to preclude to our ‘substitut[ing] another interpretation.’” NYS Nurses Assn, 130 AD3d at 34 (quoting Matter of Inc. Vil. of Lynbrook v NYS Pub. Empl. Relations Bd., 48 NY2d 398, 404 (1979)). As previously stated, NYCCBL § 12-306(c) provides: Good faith bargaining. The duty of a public employer and certified or designated employee organization to bargain collectively in good faith shall include the obligation to: *** (4) to furnish to the other party, upon request, data normally maintained in the regular course of business, reasonably available and necessary for full and proper 18 discussion, understanding and negotiation of subjects within the scope of collective bargaining. Id. (emphasis added). Section 12-306(c)(4) of the NYCCBL thus explicitly states that the duty “to furnish to the other party, upon request, data” extends to “subjects within the scope of collective bargaining,” without qualification. In applying its statutory mandate, the Board found that neither the statutory language nor its own precedent distinguished between disciplinary grievances and any other type of grievance. To find otherwise would in effect amend the terms of NYCCBL § 12- 306(c)(4) to narrow its scope. Accordingly, it reasonably found disciplinary grievances fell within the scope of collective bargaining and therefore the information requested was required under the statute. (R. 35-36.) The City does not dispute, nor can it, that employee discipline is a mandatory subject of bargaining. See Matter of Patrolmen’s Benevolent Assn. v. NYS Pub. Empl. Relations Bd., 6 NY3d 563, 572-74 (2006); Matter of City of Middletown v. City of Middletown Police Benevolent Assn., 81 AD3d 1238, 1239 (3d Dept 2011).7 Thus the underlying disciplinary provision is a mandatory 7 Although not applicable here, an exception applies in matters of police discipline, where a strong countervailing policy was found. See Matter of Patrolmen’s Benevolent Assn., 6 NY3d at 570 (holding that police discipline may not be a subject of collective bargaining under the Taylor Law where there is a strong public policy expressly committing disciplinary authority over a police department to local officials). The City does not assert that discipline falls outside the scope of collective bargaining in the instant matter. To the contrary, the City affirmatively argued before the lower courts that the disciplinary procedures at issue “[are] processes [] created exclusively by collective bargaining agreements between the City and the unions, here NYSNA.” 19 subject of bargaining. As such, the Board’s inclusion of disciplinary grievances in the statutory language that extends broadly to “subjects within the scope of collective bargaining” was rational. In addition, since the statute requires information to be provided for the “full and proper discussion, understanding and negotiation” of subjects within the scope of collective bargaining, such as discipline, and the information to be provided would have furthered those goals, the Board’s conclusion was neither arbitrary nor capricious. The rationality of the Board’s conclusion that NYCCBL § 12-306(c)(4) encompasses disciplinary grievances is also supported by the Board’s prior decisions. Consistent with its own precedent, the Board held that pursuant to NYCCBL § 12-306(c)(4), the duty to furnish to the other party, upon request, 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 applies where “the information requested is relevant to and reasonably necessary for purposes of collective negotiations or contract administration.” (R. 34.) (quoting CIR, 35 OCB 8). Again relying on longstanding precedent, the Board explained that “[t]his duty extends to information relevant to and reasonably necessary [for] the administration of the (R. 422.) (emphasis in original). In acknowledging that the disciplinary provision was created by the Agreement, the City cannot escape the conclusion that the provision is within the scope of collective bargaining. 20 parties’ agreements, such as processing grievances.” (R. 35.) (quoting PBA, 79 OCB 6, at 14 (citations omitted). The Board also reaffirmed its prior decisions holding that “a failure to supply information within the scope of [NYCCBL § 12- 306(c)(4)], whether for purposes of collective bargaining or contract administration, necessarily constitutes a violation of the duty to bargain in good faith pursuant to NYCCBL § 12-306(a)(4).” (R. 34.) (quoting COBA, 75 OCB 17, at 8). Thus, consistent with its prior rulings, the Board found that, as a matter of contract administration, “the Union had the right to request information that is relevant to and reasonably necessary for consideration of a potential grievance, or to determine if an improper practice occurred.” (R. 35.) The Board’s Decision is also consistent with PERB, its counterpart at the State level, which has consistently upheld the right of a union to seek information for contract administration in the context of disciplinary grievances, “a conclusion which has been soundly and repeatedly endorsed by the courts.” (R. 35.) (citing Hampton Bays, 62 AD3d at 1068) (affirming PERB’s finding in the context of a disciplinary grievance that “failure to provide an employee organization with information relevant and material to the investigation or prosecution of a potential grievance constitutes an improper practice”); Matter of Civ. Serv. Empls. Assn. v. NYS Pub. Empl. Relations Bd., 46 AD3d 1037, 1038 (3d Dept 2007) (confirming State of New York (OMRDD), 38 PERB ¶ 3036 (2005)); Erie, 14 AD3d at 18-19 21 (confirming County of Erie (Erie County Sheriff), 36 PERB ¶ 3021 (2003)).”8 (R. 35.) Notably, and as the Appellate Division observed, the City did not dispute “the Board’s precedent holding that the duty to furnish information already applied to ‘contract administration’ and ‘grievances’ (including potential grievances), terminology not found in NYCCBL § 12-306(c)(4).” NYS Nurses Assn., 130 AD3d at 34. Rather, it disputed only the application of the duty to furnish information to disciplinary proceedings, contending that such proceedings “do not constitute contract administration or other grievances.” Id. at 35. Rejecting the City’s argument, the Appellate Division stated: Critically, the agreement defines “grievance” to include ‘[a] claimed wrongful disciplinary action taken against an employee.’ Thus, the Board reasonably found that the underlying disciplinary matters were related to the Union’s ‘contract administration’ or, in other words, ‘subjects within the scope of collective bargaining’ for purposes of NYCCBL § 12-306(c)(4), and that petitioners had an obligation pursuant to that provision to disclose certain materials to the Union in connection with the disciplinary proceedings. 8 The City asserts that because the Board had no precedent on point, it relied on nine earlier decisions from the Board itself and PERB, and that none of those decisions “concerned an individual disciplinary matter.” (City Brief, p. 22 fn. 9.) This statement is simply incorrect. All three PERB cases on which the Board relied in its Decision concerned individual disciplinary matters. (See R. 35, citing Hampton Bays, 62 AD3d at 1068; Matter of Civ. Serv. Empls. Assn., 46 AD3d at 1038; and Erie, 14 AD3d at 18-19). Incongruously, the City cites no precedent for its own interpretation, yet suggests that the Board’s holding, buttressed by nine prior decisions, is the outlier. 22 Id. The Appellate Division thus held that the Board’s interpretation of the NYCCBL was rational not only because it was consistent with its own precedent and that of PERB, but because the parties’ Agreement explicitly encompassed disciplinary proceedings within the definition of a “grievance.” Id. Therefore, because the contractual definition of grievances includes disciplinary matters, the requested information fell within the Union’s contract administration duties. The rationality of the Board’s Decision was further demonstrated by its remedy, which was narrowly-tailored to conform to the statutory language. It confirmed that the right to request information “is not unlimited,” and reaffirmed its prior holding that requests for documents that are “irrelevant, burdensome to provide, available elsewhere, confidential, or do not exist, are deemed to fall outside the scope of the duty by the public employer to disclose.” (R. 38.) (quoting NYSNA, 3 OCB2d 36, at 14). The Board then limited the information that HRA was required to produce to what fell within the scope of information properly requested under NYCCBL § 12-306(c)(4). In this regard, the Appellate Division held that the Board “demonstrated reasoned judgment by fashioning a well- balanced remedy,” because it: did not broadly or arbitrarily direct petitioners to grant the Union’s request in its entirety. Instead the Board specifically discussed each of the items requested by the Union, and found that only some of these requests were within the scope of reasonably available and material documents pursuant to NYCCBL § 12-306(c)(4), while others fell outside the ambit of that provision. 23 NYS Nurses Assn., 130 AD3d at 35. For all of the foregoing reasons, the Appellate Division properly determined that the Board’s Decision was rational and not arbitrary and capricious. Therefore, the Board’s Decision should not be disturbed and the Appellate Division’s Judgment should be affirmed. POINT II THE CITY’S ARGUMENTS MUST BE REJECTED BECAUSE THEY FAIL TO OFFER A REASONABLE BASIS TO CONCLUDE THAT THE BOARD’S INTERPRETATION OF ITS ENABLING STATUTE WAS IMPROPER A. The City seeks to substitute its own interpretation of the NYCCBL for that of the Board The City fails to demonstrate that the Board’s statutory interpretation of NYCCBL § 12-306(c)(4) was arbitrary and capricious. Instead, it attempts to substitute its own interpretation of the statutory provision at issue for that of the Board, with the hope that the Court will disregard the Board’s decades of experience interpreting the statute and controlling precedent analyzing the provision at issue. The City now argues before this Court, for the first time, that the statutory obligation under NYCCBL § 12-306(c)(4) is limited strictly to information required for collective bargaining negotiations. It thus takes the position that the NYCCBL restricts the duty to exchange information to “what is 24 necessary for the collective bargaining process.” (Brief for Appellants to the Court of Appeals (hereinafter “City Brief”), pp. 19-20.) This new theory of the case is a complete capitulation of the City’s legal position before the Board and courts below that “the NYCCBL requires parties to provide information to one another that is relevant and reasonably necessary for contract administration.” (R. 32-33 (summarizing HRA’s position in the Decision; see also R. 142-143 (HRA’s answer to improper practice petition). The City’s argument must be rejected because it did not argue it before the Board or the courts and because it contradicts the statutory language and decades of Board and PERB precedent. At the outset, it is well-settled that theories of a case that were not previously raised before an administrative agency are not preserved for judicial review. See Matter of Yonkers Gardens Co. v. State Div. of Hous. and Community Renewal, 51 NY2d 966, 967 (1980) (arguments may not be raised for the first time before the courts in an Article 78 proceeding); Matter of Leibart v. NYS Off. of Temporary & Disability Assistance, 38 AD3d 441, 442 (1st Dept 2007) (evidence not presented before administrative agency could not be first raised in Article 78 proceeding reviewing outcome of proceeding before agency). This longstanding rule applies to both questions of law and issues of fact. See Henry ex rel. Chanry Communications v. Wetzler, 82 NY2d 859, 862 (1993), cert denied, 511 US 1126 (1994) (legal contentions not preserved for judicial review where “not raised 25 before the appropriate administrative bodies”); see also Rizzo v. NYS Div. of Hous. & Community Renewal, 6 NY3d 104, 110 (2005) (it is a “fundamental principal of Article 78 review that ‘[j]udicial review of administrative determinations is confined to the facts and record adduced before the agency.”) (quoting Matter of Yarbough v Franco, 95 NY2d 342, 347 (2000)). The City failed to raise the argument before the Board and the lower courts that NYCCBL § 12-306(c)(4) should be interpreted to apply strictly for purposes of “collective bargaining,” as opposed to contract administration. For this reason, it is precluded from doing so now. Even assuming, arguendo, that the City’s argument is appropriate for judicial review, this Court should reject it as baseless. First, such a narrow reading of the statutory provision at issue would write out a critical portion of the language and render it null and void. NYCCBL § 12-306(c)(4) provides that parties must furnish data, upon request, that is “reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.” (emphasis added). The plain language is explicit that parties must provide information not merely to facilitate negotiations for a new collective bargaining agreement but for the “discussion, understanding and negotiation” of all subjects that fall within the scope of collective bargaining. Id. 26 Such discussion and understanding does not cease following the conclusion of a negotiation period but continues throughout the parties’ relationship. Moreover, the City’s reading of the provision violates the fundamental rule of statutory construction requiring that “effect and meaning must, if possible, be given to [all parts of a] statute.” Matter of Westchester Joint Water Works v. Assessor of City of Rye, 2016 N.Y. LEXIS 1650, at *11 (NY Ct. App. June 9, 2016), 2016 NY Slip Op. 04438 (quoting McKinney’s Cons. Laws of NY, Book 1, Statutes, § 98); see Matter of Springer v. Bd. of Educ. Of City School Dist. of City of NY, 27 NY3d 102, 107 (2016) (“It is an accepted rule that all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided.”) (quoting Rocovich v Consol. Edison Co., 78 NY2d 509, 515 (1991)). Here, the City has offered no reason why the Board should ignore the plain language of NYCCBL § 12-306(c)(4) so as to alter the provision’s meaning. By writing out a significant portion of the statutory language, the City would render much of the provision meaningless. In offering its new interpretation of the statute, the City is also asking the Court to reject decades of Board precedent holding that NYCCBL § 12-306(c)(4) encompasses information requests “relevant to and reasonably necessary for contract administration.” CIR, 35 OCB 8, at 14 (holding that “a duty to provide information which may reasonably be required by the certified bargaining 27 representative for the fulfillment of its representative duties is a component of an employer’s obligation to bargain in good faith” and that such an obligation “would be enforceable under the NYCCBL notwithstanding the existence of a contractual duty to provide information.”); see also NYSNA, 3 OCB2d 36, at 13 (The duty to disclose documents pursuant to NYCCBL § 12-306(c)(4) “stems from a union’s obligation to effectively negotiate with an employer, and its duty to respond to its membership regarding what actions, if any, it plans to take in response to an employer’s actions”) (quoting Bd. of Educ. of the City School Dist. of the City of NY, 42 PERB ¶ 4570, at 4773); COBA, 63 OCB 9, at 11-12 (BCB 1999) (“Under our statute, a union may request information from a municipal employer (a) for purposes of collective negotiations on mandatory subjects of bargaining as well as (b) on matters necessary for the administration of the collective bargaining agreement, such as grievance administration.”) Moreover, courts have upheld the right of an employee organization to obtain information for contract administration in the context of disciplinary grievances. See, e.g., Hampton Bays, 69 AD3d 1066; Matter of Civ. Serv. Empl. Assn., 46 AD3d 1037; Erie, 14 AD3d 14. Adoption of the City’s interpretation of the statutory provision would effectively discard over 30 years of statutory application and analysis by the Board and PERB in favor of an interpretation entirely divorced from its rationally-based, historical application.9 9 Notably, the Board has previously addressed and dismissed this same argument. In SSEU, L. 28 It is clear that the interpretation urged by the City directly contradicts the purposes behind the creation of the NYCCBL. The statute was created to facilitate the peaceful resolution of labor disputes not only in the context of contact negotiations, but also unresolved grievances and representation issues. See generally, Executive Order 52 (Sept. 29, 1967) (attached as addendum to brief).10 Yet the City would have the dispute resolution process end at the conclusion of contract negotiations. Were the Court to adopt the City’s interpretation, the application of NYCCBL § 12-306(c)(4) – and presumably all “good faith bargaining” obligations set forth in NYCCBL § 12-306(c) -- would cease to apply to negotiations or disputes arising subsequent to the execution of a collective bargaining agreement. It would not apply to ongoing contract administration, 371, 1 OCB2d 11 (BCB 2008), the City refused to furnish information requested by a union, pursuant to NYCCBL § 12-306(c)(4), concerning the salaries paid to new hires and certain other employees at a City agency following a dispute over whether they were being paid in excess of the contractually-negotiated rates. The City argued before the Board that it was not obligated to produce the information because the parties were not in a period of contract negotiation. The Board rejected the City’s argument, holding that: Nothing in either the statutory language nor the prior decisions of this Board give credence to the claim that the duty to provide such information [pursuant to NYCCBL § 12-306(c)(4)] exists only during a negotiation period, and, in fact, the duty to provide information relevant to and necessary for the administration of a contract presupposes the existence of a contract to administer. SSEU, L. 371, 1 OCB2d 11, at 9. 10 The City argues that permitting information disclosure pertaining to disciplinary grievances “would ignore the City Council’s specific and considered judgments on the issue.” (City Brief p. 20.) It cites no authority for this assertion nor does it elaborate on the “judgments” the City Council made on this statutory matter. 29 including representation of employees in grievance proceedings. Hence, parties would no longer have a duty to approach any post-contractual disputes “with a sincere resolve to reach an agreement.” See NYCCBL § 12-306(c). Finally, the City concedes that the duty to disclose information applies to Step IV of a disciplinary grievance, the arbitration stage of the process. (See City Brief, p. 9 fn. 5.) There is absolutely no basis for asserting that the statute provides a right to information at the last stage of a disciplinary grievance, but not earlier. Such a limitation is clearly not supported in the plain language of the statute and no reading of the NYCCBL would support such an interpretation. Moreover, were this argument accepted, it would unnecessarily extend the disciplinary process, and require the parties to expend far greater resources. The parties would be forced to process disciplinary cases through all four steps of the grievance process and appoint an arbitrator merely to obtain the same information that may have resolved the dispute at the first step of the grievance procedure. In short, under the City’s theory of the case, the concept of good faith bargaining under the NYCCBL would be a limited obligation arising only when the parties negotiate a full collective bargaining agreement. This interpretation ignores the Union’s legal obligation to administer the Agreement, a duty that involves ongoing labor-management negotiations and dispute resolution. See NYCCBL § 12-306(b)(3) (“It shall be an improper practice for a public employee 30 organization or its agents . . . to breach its duty of fair representation to public employees under this chapter.”). It also fails to acknowledge the reality of labor- management relations, which involves daily discussions and negotiations in order to achieve the peaceful resolution of workplace disputes contemplated by the NYCCBL. The Court should not permit the City to revise the statute by writing out critical language simply because the Board’s application, which is accorded deference, does not favor its desire for administrative convenience. For all of the aforementioned reasons, the City’s newly-asserted legal argument simply cannot stand and must be rejected. B. The City’s Contention that the Decision Will Lead to Protracted Discovery and Delay Has No Basis in Fact In addition to espousing a new legal theory of the case, the City attempts to convince the Court that, should the Decision stand, an untenable situation will result from the exchange of limited amounts of data by parties to a disciplinary grievance. Throughout its Brief, the City promulgates a vision of chaos resulting from a so-called “sweeping discovery right” that will deprive disciplinary procedures of their focus and expediency. (City Brief p. 2.) It asserts, for example, that the Board’s interpretation of NYCCBL § 12-306(c)(4) will “open the floodgates to wide-reaching discovery” and “routine collateral improper-practice litigation” in disciplinary disputes “as a matter of course.” (City Brief pp. 1, 2, 31 28.) The City complains that this “freestanding discovery right” will allow unions to “request a staggering amount of discovery,” resulting in a disciplinary process that is “subsumed by discovery” and stopped “dead in its tracks”. (City Brief pp. 2, 15, 28-29.) At the outset, the City misrepresents the type of information required to be furnished under the statute by insisting on using the term “discovery” as used in civil litigation to address what the Board refers to as “data normally maintained in the regular course of business”.11 See NYCCBL § 12-306(c)(4). Black’s Law Dictionary defines “discovery,” in part, as: “The pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted.” (Black’s Law Dictionary, 8th Ed.) It notes that discovery “has broad scope,” and that “discovery may be had of facts incidentally relevant to the issues in the pleadings even if the facts do not directly prove or disprove the facts in question.” (Id.) The City’s use of the term “discovery” thus implies a wide-ranging process that can be time consuming and labor intensive. This is not what is contemplated under the NYCCBL or the Taylor Law, nor does it resemble the disclosure that the Board directed in the Decision. The duty to 11 To that end, the City misrepresents NYSNA’s assertion in its improper practice petition before the Board. NYSNA did not claim that it had a “right to discovery in connection with two disciplinary proceedings.” (City Brief p. 7.) Rather, NYSNA asserted that it requested information relevant and necessary for its representation of [the grievants] at the Hearings on the Charges”. (R. 46; see also R. 484 (providing a detailed explanation of reasons for seeking information from HRA).) 32 provide information in the context of a grievance procedure serves a purpose distinct from that of “discovery,” in that such a duty assists a union in the “investigation or prosecution of a potential grievance.” Hampton Bays, 62 AD3d at 1068. The duty to provide information is also critical to a union’s consideration of the potential settlement or withdrawal of a grievance. Unlike pre-trial discovery in the court system, there is no use of written interrogatories or requests for admission of fact, nor are any depositions contemplated in a party’s compliance with the statutory provision at issue.12 As PERB clarified, “requests for information under the [Taylor] Act are intended to be less formal and narrower in scope than permissible discovery in litigation.” Town of Wallkill Police Benevolent Assn., 42 PERB ¶ 3006, at 3017 (2009). Tellingly, the City is unable to offer any examples, from the evidentiary record or elsewhere, of grievances, disciplinary or otherwise, that were subsumed by a “staggering amount of discovery” and “inevitable” delay following the issuance of the Decision. (City Brief pp. 28-29, 31.) The City’s claim that “gamesmanship” will plague the disciplinary grievance process similarly lacks evidentiary support in the record. (City Brief p. 31.) 12 Notably, the Board, in its Decision, explicitly rejected information requests by NYSNA that resembled interrogatories and depositions, such as its requests that HRA create documents explaining its decision to bring charges and produce witnesses for questioning. (See R. 40-41). The Board found that both requests went beyond the scope of information properly requested under the NYCCBL. (Id.) 33 The City also fails to provide any factual or evidentiary support for its complaint that a party’s obligation to furnish a limited amount of requested information will delay the disciplinary grievance process. Nothing requires an agency to refrain from taking disciplinary action against an employee due to a request for information or because an improper practice petition seeking information pertaining to a grievance has been filed with the Board. Thus, the agency’s ability to take disciplinary action is not tethered to or contingent upon the resolution of an improper practice charge. See, e.g., Pfau, 69 AD3d at 1081 n.1 (noting that the underlying disciplinary proceeding continued and resulted in the termination of the employee during the pendency of the improper practice petition challenging the employer’s refusal to provide requested information). NYSNA’s information requests in the instant matter thus cannot be blamed for the slow pace of the disciplinary grievance process.13 As the employer, HRA largely controlled the pace of the process, as it was responsible for holding the informal conference and issuing the determinations at Steps I, II and III. (R. 61-63.) 13 In response to the City’s representation of the instant case as an example of the alleged delay resulting from the duty to furnish data, the Appellate Division aptly responded that “the five-year delay is actually a result of the administrative and judicial proceedings concerning the parties’ dispute over disclosure. This does not reflect how long the disciplinary process would have taken if the information requested by the Union--and ultimately ordered by the Board--had been readily produced in the first place.” NYS Nurses Assn., 130 AD3d at 35-36. Here, the City cannot contend that HRA’s compliance with NYSNA’s information request delayed the disciplinary process because it, in fact, made no effort to comply. 34 The City also misrepresents the parties’ contractual dispute resolution procedure by asserting that the Agreement “fast-tracks” the disciplinary process, reflecting the parties’ “desire for prompt resolution.” (City Brief p. 24.) To that end, the City claims that the first three steps of the disciplinary process are intended to be completed in “just 55 working days.” (City Brief p. 27.) While the time frames that the contractual grievance process actually specifies are limited, the 55 day period cited by the City does not fully explain the length of the process. There is also no record evidence that the process is actually completed within that time frame. By way of example, Step I of the Agreement’s disciplinary grievance procedure provides that “a conference shall be held” following service of written charges upon an employee. (R. 63.) Yet the Agreement is silent on how soon that conference must take place after the charges are served. Thus, the 55 day time frame can be massively expanded depending on when the conference occurs. In the case of NYSNA’s grievances that formed the basis of the instant dispute, the requisite “step” determinations were issued weeks behind the time limits set forth in the Agreement. (Compare R. 63 with R. 46-47.) The record reflects that HRA issued charges against the grievants on or about October 26, 2009. Yet, the Step I informal conference was not held until December 14, 2009, and the termination letters were not issued, in the case of one grievant, until January 15, 2010. (Id.) 35 Thus, the evidence reflects that over 80 days had passed between the issuance of the charges and the Step I termination decision alone.14 There is also no evidence that providing relevant requested data would inhibit the contractual grievance process. It is self-evident that most, if not all, information relevant to a disciplinary action is readily accessible by the agency from which it is requested since such information is likely to have formed the basis for the disciplinary charges at issue.15 In short, the notion that the furnishing of data would interfere with the speedy resolution of disciplinary grievances is entirely baseless. Ironically, to the extent there is record evidence of information requests in the context of disciplinary grievances, the record disproves the City’s argument. That is, that the exchange of information prior to a disciplinary hearing does not 14 Further, the record evidence offers no support for the claim that the Agreement “fast track[s]” disciplinary grievances, compared to other contractual grievances. (City Brief p. 27.) For non- disciplinary contractual grievances, the Agreement provides that parties must file charges within a specific number of days from the date on which the grievance arose. (R. 61.) In contrast, the disciplinary grievance process is initiated by the service of charges. However, the Agreement provides no time limit by which the City must file the charges or for when a conference to discuss the charges must be held. Further, where the Agreement specifies the number of days allotted to hold hearings, issue decisions, or appeal to the next step, the time frames are nearly identical. Additionally, the Agreement contains an “expedited” grievance process that specifically excludes matters of discipline in excess of a one week suspension. Thus, the processing of disciplinary grievances is no faster than other types of grievances. 15 Similarly the City’s assertion that the Board is “ill equipped” to administer discovery disputes is specious. (City Brief p. 2.) As discussed, supra, the Board is not addressing discovery disputes but rather adjudicating whether parties must furnish information pursuant to the statute. Second, NYCCBL § 12-306(c)(4) has been part of the statute since 1971 and the Board has been addressing cases arising thereunder ever since. See, e.g., NYSNA, 8 OCB2d 17, at 11-13 (BCB 2015); CIR, 49 OCB 22, at 17-18 (BCB 1992). 36 extend the process, but speeds its resolution. Based on her experience representing NYSNA employees in disciplinary matters, NYSNA Nursing Representative Ilene Sussman stated in a 2011 affidavit that “obtaining information from the employer at an early stage in the process promotes quicker resolution of matters, either through settlement or through more efficient hearing procedures.” (R. 484.) The City provided no evidence to the contrary. Indeed, the City echoed Sussman’s assessment, arguing that it “can – and sometimes has – voluntarily provided limited discovery to advance particular disciplinary proceedings, especially when it may facilitate settlement.” (City Brief p. 28.) The record reflects that the present dispute marks the first time that any party to the Agreement claimed that it had no obligation to furnish NYSNA with information requested with respect to a disciplinary action. (R. 683.) Even prior to NYSNA’s filing of the improper practice petition that resulted in the Board’s Decision, the instant matter was a rare exception to the parties’ practice of exchanging information in these types of matters. (See, e.g., R. 683, 712-715.) According to Leon Bell, NYSNA’s Associate Director, prior to the filing of the petition before the Board in the instant matter, NYC Health + Hospitals (“H+H”) and the City’s Department of Health and Mental Hygiene, both parties to the Agreement, had routinely responded to NYSNA information requests regarding disciplinary grievances “and never once questioned their statutory obligation to do 37 so.” (R. 683, 712-715.)16 See also State of New York (Dept. of Corr. & Community Supervision), 49 PERB ¶ 4536 (ALJ, Apr. 15, 2016) (finding that a union was entitled to information in the context of a disciplinary grievance as part of its contract administration duties under the Taylor Law, and noting that the union presented evidence that obtaining the information prior to filing an arbitration demand could result in settlement in lieu of arbitration). Thus the record evidence is clear that not only does the exchange of information in a disciplinary grievance procedure not delay or expand the process, it often facilitates the resolution of the grievance. For all of these reasons, the Court should find that the City’s policy basis to reject the Board’s Decision is meritless. C. The Pfau Decision is Distinguishable Since the inception of this dispute, the City has primarily relied upon the Third Department’s decision in Pfau, asserting that it “correctly analyzes the important policy issues at stake when prehearing disciplinary discovery becomes routine.” (City Brief p. 25.) As discussed, supra, there is simply no record evidence that litigation style “prehearing disciplinary discovery” between City 16 Such record evidence directly refutes the City’s assertion, lacking any evidentiary support, that there exists a “longstanding practice” not to disclose information in the context of disciplinary proceedings. (See City Brief p. 31.) 38 agencies and NYSNA is routine or will become so in the future, or that such “discovery” requests were at issue in the case before the Board. The City’s reading of Pfau is inapplicable here for a number of reasons. First, the Pfau decision is factually distinct and legally distinguishable from the instant matter. As an initial matter, Pfau involved a vastly different factual context. The decision in Pfau turned on the type of disciplinary procedures at issue, which were statutory in nature, based on the Rules of the Chief Judge. Pfau, 69 AD3d at 1082-83. In contrast, the procedures at issue here are created exclusively by the Agreement between the City and NYSNA. In addition, a comparative analysis of the NYCCBL and the Taylor Law shows that the Decision is amply supported by the statute. The obligation to furnish information is codified in NYCCBL § 12-306(c)(4), whereas, the Taylor Law provides no statutory equivalent. Instead, PERB had construed the obligation to furnish information to be implicit in the duty to bargain in good faith under the Taylor Law. See Pfau, 69 AD3d at 1080-81; see also Matter of Civ. Serv. Empls. Assn. v. State of NY Pub. Empl. Relations Bd., 14 Misc.3d 199, 208 (Sup Ct Albany County 2006), affd, 46 AD3d 1037 (3d Dept 2007); Bd. of Educ., City School Dist. of Albany, 6 PERB ¶ 3012, at 3030 (1973) (defining such implicit right as “circumscribed by the rules of reasonableness”). In contrast, the NYCCBL provides an explicit statutory duty to furnish information. See NYCCBL § 12- 39 306(c)(4) (duty “to furnish to the other party, upon request, 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”). In that PERB’s finding of an implied right to information in disciplinary grievances under the Taylor Law has been repeatedly upheld by the courts, the Board's order to provide such information based upon an express right under the NYCCBL must also be upheld. Critically, the Pfau Court did not create a categorical exclusion for disciplinary grievances from the duty to provide information under the Taylor Law. On the contrary, it cited its own prior cases confirming PERB’s decisions holding that the obligation to provide information can extend to information requested in relation to contractually-defined disciplinary procedures. See Pfau, 69 AD3d at 1082; see also Hampton Bays, 62 AD3d at 1068; Matter of Civ. Serv. Empls. Assn., 46 AD3d at 1038; Erie, 14 AD3d at 18-19. The court in Pfau distinguished itself from these cases by holding that the duty to provide information under the Taylor Law does not extend to disclosure in the context of a disciplinary proceeding created not by contract, but by the Rules of the Chief Judge. Pfau, 69 AD3d at 1082-83. Notably, each of the case affirmed by Pfau arose in the context of a disciplinary grievance and vindicated the right to obtain information relevant to and reasonably necessary to evaluate and process that 40 grievance. See Hampton Bays, 62 AD3d at 1068; Matter of Civ. Serv. Empls. Assn., 46 AD3d at 1038; Erie, 14 AD3d at 18-19. Second, the City repeatedly mimics, out of context, the Pfau Court’s assertion that disciplinary proceedings serve a “significantly different function” than a contractual grievance because the former are intended to “promptly” resolve allegations of employee misconduct.17 (City Brief at pp. 26, 27.) As we previously stated, the disciplinary proceedings at issue here are contractual grievances under this Agreement.18 Indeed, the City ignores that, under the Agreement, all grievances are subject to the same “step” grievance procedure, with only slight procedural variations for grievances relating to a claimed wrongful disciplinary action because the employer initiates the process by the service of written charges. As the Appellate Division succinctly stated: the Third Department’s rationale [in Pfau] that ‘disciplinary proceedings, which involve alleged misconduct by an employee, serve a significantly different function than a grievance’ is inapposite here, 17 It should be noted that the cases cited by the Third Department in Pfau for the proposition that disciplinary proceedings are distinct from grievances and contract administration were decided under CSL § 75, not under the NYCCBL or the Taylor Law. See Pfau, 69 AD3d at 1082 (citing, e.g., Utica City School Dist. v. Fehlhaber, 59 AD3d 957, 958 (4th Dept 2009); Matter of Connelly v. Williams, 210 AD2d 19, 20 (1st Dept 1994); Matter of Sinha v. Ambach, 91 AD2d 703 (3d Dept 1982)). The City cites these cases to bolster its assertion that there is no right to disclosure in disciplinary proceedings. (City Brief pp. 27-28.) This may be relevant in the context of CSL § 75, a statutory disciplinary proceeding, but has no application in the context of a contractual disciplinary grievance, or a related improper practice charge before the Board. 18 Under the Agreement, employees must waive their statutory rights to submit the dispute to another administrative or judicial tribunal in order to proceed under the contractual grievance process. (R. 62.) 41 where the agreement expressly defined a ‘grievance’ to include an allegedly wrongful disciplinary action against an employee. NYS Nurses Assn., 130 AD3d at 36-37 (citations omitted). Thus, in the instant matter, the City attempts to create a distinction between disciplinary and other grievances that does not exist in the Agreement or by law. Further, the City argues that if Pfau were not followed here, it would result in “asymmetrical tracks” in disciplinary proceedings that will disadvantage employees who elect to proceed under CSL § 75, under which there is no right to “discovery.” (City Brief p. 30.) At the outset, the City has failed to articulate any rational policy reason why the two processes should be identical with regard to information disclosure. The processes themselves are distinct. For example, under CSL § 75, the decision is issued by the employer, not a neutral arbitrator. See CSL § 75(2). In addition, no penalty is issued until after a formal hearing under CSL § 75 procedures. See CSL § 75(3). In contrast, a discharge or other penalty is imposed prior to the arbitration under contractual arbitration procedures. (See R. 63, 127-31.) (an employee waives the right under CSL § 75 to delay the imposition of a penalty until after a formal hearing by electing to proceed through the grievance and arbitration process). In the Decision, the Board explicitly addressed the concern of its dissenting members that disciplinary grievances would provide an avenue for obtaining information that was unavailable under CSL § 75. (R. 38.) It concluded that the 42 duty to provide information in the context of a statutory disciplinary procedure “serves purposes distinct from that of discovery, in that it assists the Union in the investigation or prosecution of a potential grievance, so it can determine how and in what forum to proceed.” (Id.) As they serve different and distinct purposes, there is no reason that these procedures must be identical. Additionally, CSL § 76(4) provides that the statutory disciplinary procedures created by CSL § 75 are not the exclusive means through which a public employer may adjudicate disciplinary cases. Where, as in the instant matter, the employee is also covered by the parties’ Agreement, which includes discipline in its grievance arbitration provision, the employee may elect to appeal the discipline under the Agreement or pursue his CSL § 75 rights, but may not elect both options. Given that the CSL explicitly provides that the procedures in § 75 are not the only means for resolving disciplinary cases, the City has failed to explain why CSL § 75 should drive the Board’s interpretation of the NYCCBL. Finally, the City’s assertion that disclosure of information would provide greater rights to employees in disciplinary arbitrations than under CSL § 75 is not accurate. The City voluntarily submits CSL § 75 disciplinary cases to the Office of Administrative Trials and Hearings (“OATH”) for adjudication. See Executive Order 32 (July 25, 1979) (attached as addendum to brief). Those cases are governed by OATH’s Rules of Practice, which provide for a formal discovery 43 process. See OATH’s Rules of Practice, Subch. C, § 1-33.19 The City has offered no evidence that disclosure under OATH’s procedures impairs or inhibits the disciplinary process. Yet, by asserting that the two procedures must be consistent, the City is actually advocating for reduced rights to information for its employees under the Agreement as compared with CSL § 75. In short, the City’s arguments that the Court should look to Pfau for guidance in the instant matter is simply unavailing. As demonstrated above, the policy concerns highlighted in Pfau are either irrelevant or inapposite to the instant matter because the two matters derive from factual and legal scenarios with critical differences. Moreover, nothing in the Pfau decision renders the Board’s Decision either arbitrary and capricious or contrary to the law because it is a reasonable interpretation of § 12-306(c)(4) of the NYCCBL, based upon the applicable statutory language and precedent. 19 Under OATH’s Rules, parties are expressly permitted to request document production, identification of trial witnesses, and inspection of real evidence to be introduced at the hearing and such requests “shall be [made] and completed promptly.” OATH’s Rules of Practice, Subch. C, § 1-33 (c). OATH also permits other discovery devices, such as depositions and interrogatories, by agreement of the parties or upon motion for good cause shown. See id., at § 1-33 (a), (b). CONCLUSION WHEREFORE, Respondent, the Board of Collective Bargaining, respectfully requests that the Court affirm the decision of the Appellate Division, and grant such other relief as the Court deems just and proper. DATED: New York, New York August 9, 2016 Respectfully submitted, STEVEN E. STAR General Counsel, Office of Collective Bargaining Attorney for Respondent Board of Collective Bargaining 100 Gold Street- 4th floor New York, New York 10038 (212) 306-7160 sstar@ocb.nyc.gov alevv(cilocb.nyc.gov 44 ADDENDUM '· . . .• . . • • CITY OF NEW YORK 0FFlCE OF THE: M..\YOi=t NEW YORK. N.Y. 10007 EXECUTI'iE ORDER NO. 52 ·-. .. . September 29, 1967 ·The.Conduct of Labor Relatio~s Between the City of· Ne• . ; York and its E~olovees ~ . - . . .. Nm·l, THE R::ron.E, bv tho:'! co·"e c v~s ted ~n m~ as Haj'Or of the City of Mew York, ~t-~s h~~cby ordered as follows: . .. . · .. • .. " .. ' . ! • .. • • •• • ', I • • + • ,. . ·•. . .~ ... . ·.. ·. . . . ·. . . • .. .. • I ... . . . . . ._··· . · . • .. • .., I : ~ . .. . ., . . . . . . . .. . . . 0 .·· ·:· I I ~. "- • .. .I + •• .. . .. . . ..· : ·~-· ·.~ ~-- ~~ . :_·. . . · ... . : ·.• . ' · .; .. • • Of ., • :. • • ,·· ~ - . I · Section_ . 1. DECLA~;TION OF POLICY • .. .. .. . ' . . . . . ·-... . · It is hereby declared to be th~ policy df the Cit~. to engage in collective bargaining; to enter into written col- lective bargainir.q aqreements on matters within"the scope of· . ·collective ba=gaining, with certified arnployee organizations; •. ··.~ · .. to uti).ize the services of the office of collective bargaining · · · •to settle impasses in contract negotiation and representation : issues; and to =efer unresolved grievances with certified e~- . . .· : p"loyee organiza"t.ions to impar"tial arbit;-ation. . '. .. :.,.;. . . . . . §2. DEFINITIONS. . . .· ... - · . .. .. .· • .. t • • .. .. \ .• .. . · · . As used in this ~Exe~utive Order, unless the context cl~arly indicates otherwise: ·. · ·" . . . a. The term "~card of collective bargaining" shall . . ~ mean the board created by section eleven hundred seventy-on~ · .of. the charter. • . . . . · ;.r:r b. Th~ term "board of certification" shall mean the -board created ·by section eleven hundred seventy-two of the charter. c. The term "mayoral aqency" shall mean any administra- tion, department, division, bureau, office,·board, or corr~ission established under the charter or local law, the head of which is appointed by the Mayor and has appointive powers, and whose em- ployees are paid in whole or in part from the city treasury, othe~ than the board of education, the board of higher education, and · the administrative board of the judicial conference • . d. The term "mayoral agency employees" shall mean all employees· of mayoral agencies. .. ····• ...• · . . ., . .· e. The term "employee orqanization" shall mean any organization or association of e~ployees, a primary purpose of which is to represent them concerning their wages, hours, a~d ... working. conditions. · • ·. · f. The term "certified emploj•ec organization" shall mean: (1) any employee organization certified bY. the board of " certification a~ the exclusive bargaining representative of a · .bargaining unit determined to be ap~ropriatc for such purpose, or {2) any employee organization which, prior to the effective date of this Executive Order, was recoqnized by a ~ayoral aGency, .or certified bv the deo~rlrncnt of labor, as such exclu~ive bar- gaining reprc~cntativc-~nless sue~ recoynition has been or is withdrawn or such certification hus been or is terminated. . . .. : q. The term "~atters within the sco9e of collective bargaining" shall mean rnat~ers designated as being within the scope of collective bargaining under Section 5 • . S 3. RIGHTS OF :·l;l.YORAL AGE~ICY E:·!PLOYEES A..~D CERTIFIED E:·~?LOYEE ORG~~IZP.TIO~S. t>tayoral agency <::!r.tployees shall have the right to self- organization, to form, jcin or assist employee organizatic~s, to bargain collectively through certified employee organizations, and shall have t~e ri~h~ to refrain from any or all of such ac- tivities. Certified e~ployee organizations shall be recognized • as the exclusive · 1rgaining re9resentatives of the mayoral agency employees in the approp=iate hragaining units. Nothing herein shall preve~t a~y city official from meeting with minority e~ ployee organizations with ~~~bers in such units, so long as ~he certifi~d e~?loye~ organi=a ~ion ~hereof is in:orme d in advance of the meeting and any change in terms and concH tions of e:":i?loy- ment i~ effected·o. -Y through nego tiations with the certified employe~ organization. S4:. APPLICABILITY OF COLLECTIVE· BARGAINING LA~·T. ~ . This Executive Order and, . pursuant to Section 1173-4.0 (a) of the New York City Collective sarqaininq Law, the provisions of such Law are hereby made a??iicable to all mayoral aqencies_, a:: -:· to the employees and employee o,rganizatior.s thereof. SS. Mll.TTERS l'TIT!:!IN THE SCOPE OF COLLECTIVE BARGAINI~·lG. a. Subject to the provisions of paragraph (c) ' below the City shall have the duty to bargain in good faith: (1) with ·the ce=tified employee organizatio~s of ~ayora : -agency employees on wages (including but not limited to wage ra~es, pensions, health and wel!'a=e ben~fits, uniform allot-:ances and shi: ·_ premiums) , hours (including but not limited to overtina and ti~e a~ leave benefits)~ a~d working conditions, subject, howeve~, to the provisio~s of section 5 (a) (2), (3), (4) and (5), and to the extent permitted under the res?cctive c~rtificates, provided, ho~·: ever, that with respect to those employees whose wages are deter- mined under s~ction two hundrad twenty of the labo~ law, there shall be no duty to bargain concerning those matters whose detei- mination is provided for under such section. ~ -..... (2) with a certified employee organization, cou~cil or group of certified e~ployee organizations designated by the board of certificatio~ as representir.q ~ore than 50% of all c~ployees subjec~ to the Career and Salary Plan, and only with such employee orga~ization or orqanizations, on city-~iae -matters which must be t:.:uforrr. for all such en;:~lovees, such as · overtime, a·nd time and leave rules. The tem~ agreed uoon in ·such bargaining shall be applicable to and binding upon-all such employees. The effective date of such terms as to any bargaining unit shall be the subject of collective ba=gaining, except that the terr..s agreed upon in · such negotiations shall not become e :tec~ive prio~ to July 1, 1967. The foregoir.q shall not: (A) prevent the City from meeting with a~y other employee crganizatic~ rep~esenting such employees for the purpose of hea=ing the views and requests of its me~bers on such matters, provided that the organizat1on, council o= group designated as re~res~~ting ~ore than fifty per cent of sue~ employees is informed in advance of the meeti~g, and any chang~s in the te~s of such city-wide ~atters is ef=ec t ed only through negotiations with it, .or ~) be construed to deny to the City or a certified employee organization the right to bargain for a variation or a pa~ticular a?plication of any city-wide policy or any term of an - agree~ent executed ~urs~ant to this Section 5 (a) (2) governing any city-\>~ide r.tatter, where considerations special a~d uniqu~ to a particular de9artment, class of employees, or collective bargaining unit are involved. ' • I - 1 (3) with an employee orq~nizco ':ion, council or group ~f employee organizations designated by .he board of certifica- tion as representing more chan fifty pe. cent of all· employees ·within~ department on matters which must be uniform for all employees in the department, but only if such organization, or in the ~ase of a qrou? or council, each organization in such group d.r council, has been ;>reviously certified as a ci ty-• . ,ride bargai~ing representative for an appropriate bargaining unit. The foregoing shall not prevent the City. from meetinq with any other employee·orqanization representinq such employces"for t~e purpose of hearing the views and requests of its m~~b~rs o~ such matters, provided that the organization, council or gro~? designated as re~resentlng fifty per cent of such e~ployecs is informed in advance of the mcct1ng, and any chanqes in the te~.s of such department-wide matt~rs is effected Only through ne- · qotiations with it. . . • . \ . f I I I I I I (4) with certified employee organizations represent- ing employees in the unifor.ned forces of the police, fir~, sani- tation and co~rect~on services on city-wid~ matters, including, but not limited to oens1ons, overtime, and ti~e and leave rules insofar as such issues affect the particular serv~ce i~volved. {5) on pensions for employees other than th~se in the uniformed forces re:erred to in Section 5 {a* (4} herein, · only with a cert~fied e~ployee . organiza~ion, council, or grou? of cettified employee crganizations designated bj the board of cer- tification as represe~ting more than 50% of all employees in- cluded in the ~ens1on system 1nvolved. b. The City will bargain on matters within the scope of col~ective b~rgaining even though such ~atters require action by a body, agency, or off1c1al other than the Mayor or the head of a mayoral agency. The City will also bargain on the question of whether the City should request such body, age~cy, or official to take such action, or support such a request. In no event, how- ever, ·shall an im?asse panel recommend that the City ma~e or support such a.request. The C1ty's duty to bargain on other matters within · the scope of collecti'le bargaining shall not be diminished cy reason of the existence of orders, rules, or regu- lations promulgated by heads of rnayoral ·agencies. For purposes of this subdivision the City civil service co~~ission shall not be deemed a mayoral agency. ·c. It is the right of ·the City, acting through its agencies, to determine the standards of services to be offered by lts agencies; determine the standards of selection for employ- ment; direct its emolovees; take d1sciolinarv action; relieve its employees from duty because of lack of wo=k or for oth~r legitimate reasons; maintain the efficiency of gove=nmental ope- rations; determine the methods, means and personnel by which gov- .· ernme~t ooerations are to be conducted; deter~ine the content of ·job classifications; take all necessary actions to carry out its mission in e~ergencies; and exerc1se complete control and dis- cretion over its organ1zation and the technology of performing its work. The City's decisions on those matters are not within the scope of collective bargaining, but, notwithstanding the above, questions concernlng the practical impact that decisions . on the above ma~ters have on emolovees, such as cruestions of work - load or manning: are w1th1n the~scope of collect~ve bargaining. d. Nothing contained in this Section 5 shall lmmit the City's obligation to barga1n with a certif1ed cm?loy~~ Or- ganization undar an existing written collective barqainir!g agreement· -~·. • . . $6. AUTHORITY OF BARGAINING REPRESCNTATIV::S. The City shall des~gnate bargaining representatives with power to negotiate on all matters ~~chin che sco2e of col- lective bargaining. $7. JOINT LABOR ?£LATIONS C0~~1IT~EES. Until an emplcyee organization has b~en certified as the exclusive barga~ning agent of a particular e~ployec unit, any employee organ~zatlon hav1ng me~bers among tha employees in such ur.it may represent such me!i\bers_, as follo~t:s: . . There shal 1 be established in each depart~ent or agency a jo1r.t labor relatlcns co~~lttee, to cons~st of repre- sentati~es of t~e e~ployees ~n the department or age~cy and representatives of the coli'.'lllSSlor.-e.r or head of che department or c.gency • • The joint 1~ . ~r relatlcns committee shall assist, through ·regular and periodic conferenca s and consul ~at ions, in formulating policies and suggesting changes wh1ch ~ay be neces- sary in existirig pol1cies, concerning the wages, hours and work- ing conditions 1n the depart-ment or agen.cy, as t·:ell as in measures to improve the eff1ciency o~ the operations of the de- partment or agency. -·_! The employee delegates pn.the - joint labor relation$ committee shall be des1gnated only by the employees or by any employee organization •,;hlch has been selected b::• a:1d represents a substantial group of the e~?loyees in the depar~~~nt or aqency. The designees of such an orga;u.zat1on to the JOint cc.r:u11ittee may be officers or agents thereof. The number of such celegates on the joint cor.mittee allotted to such an organizationsin repre- senting a substantial group of employees ~n the de?artment or · agency may be 1n such proportion to the whole numb~r of emp~oyees in the deparcment or agency as shall be arranged between the head of the departmenc and the affected eMployees. The establis~11cnt oi joint labor relatio~s committees shall not be mandatory as to any department or agency in which the aggregate membership of all qualif1ed labor organi=ations is not . representative of a substant~al nu~ber of the employees of the departm~nt or agency. · . . .. . • . : The board of collec~~ve barga1n1ng shall ha ve the a ~ M~ ,_ rity co dete~wl~e quesc~ons o: re?resentdtlon 1~ ccnr.~ct1o~ ~~- ~ the cscabl1~:1r .. ent of JOln':. labor .celatl~Jns cocn.·:attees or ~ ~ -:-t! cipation in such commJ.tt.ees, and shall prescribe such rul!=!s a :-.l: re9ulation.s as may be nece~sary and practlcable fer th-?. resc. i..l- tion of such questior.s. S8• GRIEVk~CE PROCEDU?£5. a. (1) Excepc a.s otherwise provided 1n collective bar- ~aining agree~encs, the fol!ow1ng gr1evanc~ proceeuros s~~ll ~~ applicable t:o all mayor: l ag::ncy employees other ~han r;t! . ::l~e::"s ~ -: the police force of the pollee de?art~ent, p~ov1dea1 th~':. 1r ~h~ case of any presently effect1ve collectJ.ve bargaJ.ninq ~s=~e~, ~ ~ which sets for~h g.c1evance or arb1trat1on procedures ':.~~ c~:· ~ ; ~ 1 ~; employee organJ.ZatJ.on which 1s a party thereto may ele=:, by written not1ce to the Mayor Wlthin n1nety days after the ~ffec ~17~ date of thls Order to substJ.tute in the1r entlrety t~e gr;~vanc~ and arbitra~Lon prov1s1ons set forth here1~ for tho;e ~et fer~~ in such.agreernent. A. General· Procedure . . Step 1. An employee's g r levance I €:c,:ce?t a g r ie·i~:v-:: subject to the pro v1s1ons of subgaragraph 3 of th1s parag ·d~h (1), shall be presented verbally or 1n wr1t1ng by the gr:tv:~t : or his re?resentat.l.Ve t:o the supe.rv1sor .!.n the dur1s1:>n ,:,~· b:-a.:r of the department .,,.-here the gr.l.evance .J.s cla1me-:i co have Ctc:::L•r- _ :. ~ (but not necessar1ly to the grJ.evant' s 1rn..rnedlc.c.e supen·:svrl, ~ ":' · . later chan 1~0 days after the dat~ on : wh1ch the gr1.eva~ce arcs ~ . Discuss1on a~d conslderatlon of the gr1evance may be ass1~t~~ by higher level su?ervisors, who may be called.J.n i:>r thls p~.C?~ ·~~. S 12 r· · · · ' d s 1 · t~p • t a greavance 1s not reso •e at tep ~1~n:~ two working days after 1c.s p.resenta"tlon I tt-.~ gr1ev.ant rna:' a:}p ·-=-~: to the off~c1al of the de?art~en: or agency 1n charge cf ~~~s~n~ ~:, or per son <:iesJ.gn~ t~d by the com:n1ss loner o:: head of the de9a r t~ • .: -. : · or agency [to re?resent h1m 1n the adJus~men~ of gr1evenc~s 1 ~~ f~l1ng a ~rltten statement of such gr1~vanc~ Wlth sue~ c!flcJ!! or personi w1thin seven work1ng days after presentation uf th~ grievance' at Step· l. A copy of the gr1evance r.\Ust be se:1t ·tc th ~ employee's SU?ervlsor who 1n1t1ally passed upon the grl9Va,cc. The gr1evance shall be cons1~ered and pass~d U?Cn ~1th1~ L~ r~e work inc; days after such f 1l1ng. The g r1evaa t and h: s r'"!;.t ·~s~:- ~ · tive and the department or aqency re?rese~tat1ve shd ll w~rt f ~ t satlsfactory ac!JUSt~ent of the gr1evc.nce through r:-:1nfer ·2~( ' r:~ ~; ... · tiai:.ior. and agreer.~ent. The det.!!rr:nnat1on of the ('>:9<.1::tr.t::.: or a9cncy cepresentet.lve pa~s1ng upon the gr1cvanc~ ~,~11 b2 : n \oTrltlng, CO?lCS of \lthtch shall be transmltt~d to til":! grl!.;'l ~ :l': c,:. his rcprcsentat1ve upon 1ssuance. 19 ; .. o I . . ' .... .· a~d the arbitrator shall not add to, subtract fro~, o~ · modify any such agreeir.ent, order, cete!"mination, ruh:, :-•;c:;l.tlatit:ln or job classification. An .atrbitrator' s awa:-d shall he. fin-~1 anc binding, and enforceable ~n any appropriatg tribunal i~ accor- d~nce with art~cle seventy-fit;e of the ci vi! practice !a•.; a:1d rules, except ~hat awarcs as to ;r1evanc~F ~~ncer~~nq a~s1g~~ent of employ~es to duties su~stantially different from thoge stated i~ their job class1f1cat1ons, or the use of open-co~p~ ~ilive rather than promotional exam1nat1on, shall be fi~a l and bindi:1g and ~rtforcca~le only to the ext~nt permitt=d by l~w. ~rt arbit:-a- tor m~y provide for and d1rect such relief as h~ dete ~~i:1es to b be necessary and proper, subject t~ the limitations s~t forth above and any _appl1cable limitat1ons of,law. d. The availability of gr1evance or ar~itratio:1 procedure hereunder shall not justify a fa1lure to follow orders. e. No grievance bas~d on a dispute which a~ose mc : c than thirty days prior to the effective date of this Exe:utive Orde~ m~y be brought to artitrat1on hereunder. · S9. EFFEC'riVE DATES CF AGREEH.ENTS A.'lD RETROACTIVITY. ~hen a collective bargai:1ing agreement covering a ~oll~c tive bargaining unit is concluded following the termination of a prior agreement covering that sar.1e unit, those provisions of the new agreement ~hich by their natu~e c~n be made ret= ~active, and which the City has customarily made retroactive, shall be r~troactive to the termi~atior. . date of the pr.ior agrecwent, Fro- vid~d th?t nothing herein contained shall 9rohibit the p~rtie.s f .r.om agreeing, or an impasse pane 1 f~om recoii' . .rncnding, that a:;y benefit or other provis1on of a collective bargaining agreement be staggered or phased following the effective date thereof. When a collectiv~ bargaining agreement is "concluded cov- erinartnen t ~ce:.d sl-.. :.l.i b~ issued within five working days after receipt of the a?2~al. B. Special Procedure for Grievances relati~s to the · Use of Open-competitive rather than Promot1onal Ex~inaticr.s. Any grievance relating to a claimed im?roper holc:~1 of an open-competitive rather than a promotiona: e:<~~:~~t~~~ shall be presented in wr1t1nq by. the gr1evant or his rc;rese:-: ~ ., _ tive to the City director o f labor l!~eations not. later tr. a :~ ~::-:::-:: days after the notice of in t ention to condu=t such O?e ~ - cc ~:~ t : tive examinat1on, or copy of the appo1nt i ng of:1cer' s :~~~es~ for suc~ - ooen-comce titlve exarn1nation, a s the case ~2v b~. ~~s been paste~ i:1 ac~orea~ce Wlth section 51 of the civ ~ i s:~~ ic~ ·law. The grievance shall be considered and passed~;~~~: =~:~ ten days after 1ts presentatlon. The decision shall b~ i~ ~~l ~~~c copies of w~ich shall be transmitted to both parties to t: ·.~ ;:-.._ . - vance upon ~ssuance. (2) For purposes of Section 8 (a) , the terr. "s.:-i~ vancc" shall mea:1 (AJ a dispute · concerning the applica t: ~:~ c:- . or interpretation of the terms of (i) a collective bar; .=.~::-. i :-tg agreement, (ii) a personnel order of the ~ayor, or (ii~) ~ determinatio:-t under section t~.;o hundred t•,.,·enty of the la~c:- 1.:::.-: affecting terms and cond!tions of employment; (B) a cla : 8od v: .-:; - lation, misinterpretation, or misappl1cation of the rul~~ or .:-0:- ulations of the mayoral agency by whom the grievant is ~~ ?l=y0 ~ affecting the terms and cond1tions of emplo~~ent: {C) a cl~:~ cd assignment of employees to dut1es substantially differc ~~ ~:~ ~ those stated in their job classifications; and tO) a c~ ~ .~ec improper holding of an open-competitive rather tha:1 a ;: ~~~~: o~ - ~ examination. Not~oJithstandu~cr the orovisions of this s~_;.':J-:~::::.l .:;:-. . the term grievance shall 1ncluda a~ dispute define-i ~s i'l. ::.r~e·::.: by executive order of the Mayor, by a collective ~ar1a ~ n:~ ~ a= ~ · ment, or as may be otherwise expressly agreed tc in writ::-tJ ty public employee organ1zat1on and the applicable public e= .~~~ ::::·:: : . The term ~grievant" shall 1nclude all grievants, in ~h ~ :a ~c of a group gr1evance. 0 ' • ·. (3) Any employee may present his ow:-t gr~evancc . through the first three steps of. the grievance p.rocedur.~ eit~er personally or through an a?propr~ate representat~ve oi an or- ganization of which he is a member, prov~ded, that w~ere an employee organization has he~n certified as che exclus~ve ba.r- · ~aining agent for the employee unit, a grievance may be prese~~ec and processed e1ther by such certif~ed employee orga!·aza~icn cr by the indiv~dual employee, but not through any other employee organizat~on. (4) • An employee organization certified for the unit:. of which the grievant ~s a member shall have the r~g!"lt t"o brit:J grievances unresolved at Step 3 of the general pro~ecure, or un- resolved by the spec1al procedure relat1ng ~P ~oe use of O?,en competitive rather than promotional examinations to 1m?art~al arbitration by an ?rbitrator on the register of the board of col- lective barga1n1ng, under ?rocedures established by s~~h boa=c. As a conditlon to such r1ght the gr~evant and such organi:a:ic~ shall be reauired to file w~th the d1rector of the office o~ col- lective bar~aining ~ wri tten waiver of the right, i~ an y , o! s ~ ~~ grievant and of sa~d organ1zat1on. to subm1t the underly t ng dl~ pute to any other a ~ ~1n1strat1ve or ]Udic1al trib~nal excc? c ~or . the purpose of enf urci ng the a.rbi.tra tor's a~ard. .~ g r l.ev·a:-.-: ·.:- =~ lating to the use of an open competltive rather th~n a promot ! o ~ examination shall be presenced by e~ther party to the sri -=vanc.e, in writing, to the arb1trator within f~fteen days of the ?re s c~-· tation of such grievance to the City d~rector of labor rela~tc ~~ s~ ~ the arbitra~or shall dec~de such grievance within seventv-fivc d !~! -.. ,. --· -- -""t- ~ - . .. . - of its presentation to h1~. The C1ty and the e~?loyce or~ a~i= ?. ::~~ which is party to the particular grievance shall each 9ay fifty per cent of the fees and expenses of the a~bitrator and of re- lated expenses ~nc1cental to the han.dl1ng of such ar!:n ~ration. b. Except as otherwise provided in collective bar- galnlnq agreements, the follow1ng gr~evance procedure sh~ll be applicable to all members of the police force of the Pollee Department: (1) As used here~n, the following terms shall hav~ the meanings indicated: ' (a) "r-tcrnber" means a member of the police the Police Department. force of • (b) "Commandinq Off1ce~" means the immediate Coltl- . manding Officer of the member cla1m1ng the gr1evance. • -. "(c) "Reviewing Officer" means the superior officer in charge of the next higher command or level above the Com- manding Officer of the member originating the grievance. (d) "Board" means the Personnel Grievance Board to be c6fu~biid of .three (3J members as follows: A Deputy Com- missioner or other desLgnee of the Police CommLssione~, who shall serve as Cha1rman of the Board; the Ch~ef Inspector or his designee; the Pres1denc or other offtcer of the certtfiec employee organizat1on which represents members of the rank of the member' oiigihating the grievance. (e) For purposes of Section 8, the term "Grievan=e" · -·· ·- shall mean: (A) h. jispute ccocerning the application or i~ter pretation of the terms of (i) a collective bargaining agree- metit,_or (ii) a 1 .rsonnel ordeF of the Mayor; (B) A claimed viola.tion, misinterpretation 0r mis- application of the rules or eegulations of the Pollee Dc?art- me~t affecting the terms and conattions of employmc~~, b~t the term "grievance" shall not refer to or include disci?l1nary ·matters. A grievance 'shall not tnclude a cqallenge to the Police Co~"iss1oner's author1ty to promulgate a rul~ or regu- lation, but shall be ltmited only to whether the rule or reg- ulation has been violated, misinterpreted or misapplied. . (C) ·A claimed assignmen·t. of the grievant to duties . substantially different from. those stated in his job classifi- cation; and (0) a cla1med improper holdtng of an open competi- . tive r~ther than a promotional examination. (f) The term "grievant" shall include a perso~ or group having· a grievance as defined in Section 8 (l) (e) • (2) Every member of the force shall have the right to present his grievan~es in accordance with the procedure ?ro- vided him, free from coerc1on, interference, restraint or re- prisal. The informal resolution of differences or grievance~ ~s urged and encouraged at all levels of supervision. . . . . .. Commanding Off1cers and RevJ.eHing Office~s shall ":JrC:"i:J~l .. consider grievances presented to them and, within the sc~?e ~f • their auti.ority, take such necessary ·actJ.on as is required here1 · Commanding Off1cers, Reviewing Officers and members of th Personnel Grievance Board shall cons~der obJectively the ~eri~s of grievances, with due cons~deration to the harmonious inter- relationship that is sought to be ach1eved ~~ong all members of the force and for the good of the Pol~ce Department • . Grievinces .shall be processed accordin~ to the following procedure: (a) Step 1. -A member who feels that he has been. ag- grieved may orally or in writing pres?nt his grievance to hJ.s Commanding Officer who shall carefully consider the matter, and within · five days make a determination and advise the member of the decision. (b) Step 2. - If the grievance is not adjusted, the member may not later than ten days after the completion of Ste? One, seek the follow1ng review: . The me-mber sha 11 reduce the grievance to •.vr it i nq on Form U.F. 49 (in trJ.plJ.cate), setting forth a concise re- sume of the grievance a~d che results of che proceedings at Step One. He shall forward two copJ.es to the designated Re- viewing Officer and retaJ.n one copy for his own use. The Re- viewing Off~cer shall forward one copy to the Co~~anding Officer requesting his cornments. The Revie\-anq OfficeF prom;>tly and no~ later than ten days after receipt of the grievance, shall carefully consider sa~d gr1evance_, make ...a determ1nation, and notify the member and the Commanding Officer of hJ.s decis1on. ·(c) Step 3. - If the grievance is still not adjusted, the member may, not later than ten days after notificacion cf . t.he decision of the Rev~et-1ing Off1cer seek further revieto~ as 'follows: The member shall prepare a report on U.F. 49 tin quintuplicate} sett~ng forth a resume of the grievance and the results of the proceedings at Steps One and Two. He shall for- ward four copies'of the report through official channels to the Chairmanj Personnel Grieva~ce Board retaining one copy for his own usc. The Board shall forward one coov to the Rev~e·.-11na Of- ficer requesting h1s co~~ents thereon. The Personnel Gr1e~ance Board shall meet at least once a month on a date designated by the Chairman. At each meet~ng, the Board shall consJ.d~r all gri.avances 'llhlch, at least f1ve days pr1or to such meetlng·, ha\·c been properly raferred to the Bcdrd. The Board shall permit t~a m?Mber and h~s representative to be present and to present oral .and written statements. . • . .. .. . At every step of these procedures, the nember and the officers cons~der~ng the grlevance shall work for a satlsfQc- tory adjust~enc. Ac any step, the Co~~and1ng Off1cer, the Re- .viewing Off~cer, and the Board shall have the r~ght co scr.~on' ' the ~e~er and any and all·persons consLdered necessary ~o the equitable adJUStment of the grLevance. Proceedings shall be informal • • The Cha1rman of the Personnel Grieva~ce Board shall take such steps to Lmpler.len-c the prOVL5lons concern1n·g grievances as are necessary for the proper and effective o~eration of .the pro- cedures prov1ded for he~e1n. He shall resolve qcestLo~s as to jurisdict1onal respons1b1l1t1 of Commandlng Officers and Review- ing Off1cers and shall work out the operat1onal detail of the program. For these purposes, the Cha1rman is authorized to issue orders and 1nstruct1ons through the Chief inspector not inconsistent with the provis1ons of these procedures. . . The Board shall make a determination and notify the member, his Ccnunand1ng Off1ce.::- and the ?.evle~Hng Off1cer of its c~ cisio• within seven days a~ter the mee'Clng at wh1ch a gr1evance •s con- sidered. Where the matter 1s not adJusted, the 3oard sha ll re~er tl;le grie'vance to the Pollee Cott'.riu ss1or.er for final de te rr;ana t1o:.. (d) Step 4. - Where the gr1evance is not adjusted at Step 3 and the Board refers the gr1evance to the Police Co~~iss1oner f~r final determ1nat1on the Police Co~~iss1oner shall make his detcrm1nation w1th1n twenty days of rece~~t of the gr1eva~ce. This de~erminat~on shall be made after appropr1ate consultat1on with any or all part1es to the. gr1evance, 1nclud1ng the Chairman of the Board and;or the Board members. (3) The gr1evance procedure established hereinbefore is designed to operate Wl th1n tha f r~1\et·rork of, and 1s not 1ntend~d to abol1sh or supersede, ex1st1ng rules and procedures providinq for add1t1onal methods of redress. These include, but are no~ ' limited to, the ex1st1ng rlghts of a member to request an inter- view with the Pollee Comm~ss1oner. (4) Any employee may present his cwn grievance through the first four steps of the gr1evance procedure e1ther pe~scnally or through an appropr1atc reprcsentat1ve or through an o=ganiza- tion of wh1ch he 1s a memb~r, prov1ded, that where an employee organization has been cert1f1ed as the exclusive bargain1ng agent for the emolovec unlt, a ariev~nce mav be oresented ~nd orocesse~ either by ;uc~ cert1f1ed ~nploye~ org~n1zai1on or by the.1nd1v1dua l employee, but not rhroug~ any other employee organ1zat1on. • . • .. • (5) Each certif l ed ern?loyee organization ~epres~~ ting _ ~~~bers of the police forca of the ?alice De?artrr.ent s~ e ~l ·,~~~ the right co ~ring grievances un~esolved at t~e Fo~~th ~+.~p ~o i~~art~al a~bitra~ton by an arbitrator on the recister ~£ th~ board of colle=~lve ~arga1ning, under procedu=~ ~ ~3tab ~i~~cd b~ such bo~rd . Az a.condition to such r i ght, the :"9.:'ll"!v.l:: : and such o=g.:.:-.l::.lt!.oo._shall be required to fi ~ e ·.v1th :..!•.~ dL~~=tor of the o: f ice of collective bargaining a ·: ::.·itten ~~:1er o~ the r1ght, i~ any, of said grievant an~ of s~id or- . y~: ~z~tion to submit t~e un~erly1ng dispute to any ot~~= ad- .,,j -·. : o:;":;-ative or JUd~c:!..z l tr:.!J~.mal except for the pur?ose .Jf ~~: , ~cin0 the arbitrat~r·s award . The City and th! emp loyee c· r.; ~~ n] zation \.,rhich .ts pa~ty to the particula= grievan~E: shall ~.t-:h p:J.y 50~ of the fees and expenses of the arbitrator ~nd o: =al~t~d expenses inc~~cntal to the handling of such arbitra- tit)n. ;G) In case of grievances falling within Sac~ions Sb (1:. (e) (A), {B), or (C}, the arb~trator's :ieci3i::m, an-:1 0rder t:-:0: i.!''rard (if any), ~ 1all t- s lim~ ted to the ap~licati'?:-l .lr.C. ~~ cc~prct& tio~ of the collec~ive bargaining ag=~~~enc, ~ayoral ?t·.r.~or.nei. O:."d :? r., rul . z-egul.atior., or JOb cla s si::i_caticn : n- VOlVn~, ~nj the arb~t~A tor shall not add t~, $Ubtr~ct frc~ , ,n: r.a-:..cJ.,f~· uny such ag:-Et;r:H~nt., order, rule,· regulation or : ob ~l~sGifi catio~. An a rb1tra~~r's award shall be [tnal a~~ ~ .. ; :-. ~Hr,s, and enforce a:, l~ ~t• any appropr i'u. t~ tribunal in e,. (; - co rtiance wich article seventy-fJ.ve of the civil practice :aw ~n~ =ules, except that awa=ds as to .grievances concernin~ as- ~'~nne~t of the griev~~t t~ 1ut~es substant1ally diff~:?~t from n~::.!::~ stated! in his Job classif1c'at1on, or the use of open- C'Y·tp.:>t 'Lti ve ra thcr than promotional exa.rnina tion, shall be f1r.al ~n~ ~inding and enforcea~le only to the ext ·nt permittei by law. 1.1·. "l~~~6r may pro•:1de for a:-.d direct st. h relief as he de- - ~~r~~n~s t~ be necessary and proper, subjec to the limitations :i!Z.t iorth jbo•;e and a~:· app~>lcable ll.mlt«tions o.f lat-r •. (7) j Tha availabil1ty of grievance or arbitration proce- ~~~~ hereund~r shall not JUStify a fa1lure to follow orders~ I . I - . (8)' No gr1evance based on a dispute ~hich arose more ~han thirty days prior to tte effect1ve date of this Executive ~~r.rc:- may be brought to arb1trat1on hereundf:!r. i • c. In case of gricva~ces falling within section~ 2 (a} t7-, (A), (D), or (C), the a:-b1trator's decision, arui order or· ~w~rd (if any}, shall be l1mited to the aoolica~ion and Jnter- !Jr'! t.a tior. of the co] lee tl ve bat:"g a in i nq ag rce~en t, Nayora 1 pcr- t:onnt:.l or der, determination under section t-v:o hundred t;·:E'.nty of the labor law, rule, regulation, or job classification involved, .. i ·; . ' • . .... ... 511. PRIOR EXECUTIVE ORDERS. The Executive Order on the Conduct of Labor Relations Between the City of Ne•.N York. and Herr.bers of thP. PolicE:! Force of the Police De?artr.ient.-issued Harch 29, 1963, i:1 h.zreby superseded. Executive Order.~o. 49, on the Conduct of Labor aelations Between the City of ~ew York .nd its Enplo~ees, issued March 31, 1959, is hereby superseded insofar as it applies to mayoral agency e~ployees. Sl2. EFFECTIVE DATE. This Executive Order shall take effect on whichev~r . of ~he following dates occurs first: .·(a) November 1,. ~967, or (b) the date on which the director of the nff!~~ of collective ba~gaining certifies in writing to the Mayor . that such office is . aciminis trati ·J·ely pre?c"lrcd to i ~pl:;:ne:1t all the provisions of the New York City . Collective B~rg3ining Law. This Executive Order shall be amended to show its actual effective date. October 2 , 1967 .. ; j). if . &::_, .... .,.. L~ndsay a y o r . . .· BXJ:CUTJV& ORDER NO. 3Z ]UL Y 3!, 1979 OFFICE OF ADMINJNSTRATJVE TRIALS AND HEARINGS By the power vated iA tnt 11 Mayor of The Oty ol New Y01k it is bcrcrb:r ordered: Section I. O~u EMobtW.,d. The OBitc of Admiaiatnti-.e Trlala IUIII Hca~ (bcre- inaltcr c:allft! the 011ic;e) ia bcreby cmblilhed io the 0e~~&"-llt of PcnoiiML The ()II'Q aball be dim:tcd by tbc Chief Aclminiltratin Law JI&C)al:. I z. Pur~su of ,., o~~. The Olliee sball COIIIluct admlniatratlYC trials aDd bculnca at the dlrectlor! ol the tlayor mel •011 coacluct auch triaiJ upoo tbc written rcquelt aDd dclqa. lion of the bead ol &11)' Oty Apnq. Ca) t.."iw ~MIK' Hteriftg1. Except u othcrwiac provideal 111 law or -.reed by tbc 1 Chid Adll'inaatrativc Law ]uda-c, :UI aaency hadt llball dclcptc to me 01id Adna~A~an tivc Law •uctte the auU!oritr to ICDnduct dliciDIIMn', diubilltJ or oth.tr trials IIIJ4 heuinl• J)Ctnlicted 01 nquircai b7 the: New Yock State Clvll SCrticc Law .ad to a.ke writtaa nporta ucl r«o111111eadatiolu wilh respect to llldl trials aud hcarinp. Tbe Of\a _, c:o11dact •~trial& aad hearinaa as the Director ol Penonocl 1111:11 rcquelt. (b) Oll&n Trioll11114 H--.s. £Rcpt u aUtcnriie prowidcd by law, or qnal a., the Jolayor, all .. CIC7 Ac&da naay Odqate to the Chid Admilliatnd!vc law Jlldce &be aastbMity to conduct traJia and burinp wath ruper;t lO a llaate luued or. CDOtnoct tateml iato by a City qcncy or IIICb otbcr aattcrs u to which trials or hearirtca may be per· mlrtcd or rcquind by law or contract. The office 1111)' coad!Xt IIIICb u.ila inc! '-""P u raay be requeskd bra noa-M;ayoral q!flcy, bou4 ol eolllllaiMkla. 13. CIU~I Acbttiaitlrlll~ lAw ltldgt. ·me Chiel Aclminiatntive law Jlldat tbaU be an altortlq ;admitted to pnctice In tlac State of New York and a~cd b)' the lbyor wbo aball have tllc Jollowinc respocsibllitla In additioo to prtlidiq ons- admiabtralin triala ud busiiiCI C a) To direct \be Oflice wilh raped to ita orpnizatioo and IIWI&pment ud to appoint ita Excaatin Director; lb) Tu appoint ro \he po$itioo of Admin~ntlve Law Judac such pcr10111 u 11111 be adlniutcl to the pnctltc ollaw in the State of New York aod ottM:rwik suited by train- inc ud ~lor a»dtdwies ; ( t) To establbll rules for the a~nduct of adminlatrative trials IUid hcarinp, iACiudiAa cha,.cs, ~&cations, tDOtioru. prc-hcarinc aDd po.sl·hear!IIJl maucrs ; (d) To collect und publish report a and rccoUIIJICIIdatiOIII u( A.~tm~Jtistntiw Law J"'lltS and otlaer hcann~~: officen ·and I Cc) To make recoouncndat{o";;a to the Yaror conccrniua me p