In the Matter of City of New York, et al., Appellants,v.New York State Nurses Association, et al., Respondents.

Brief

N.Y.April 25, 2017

APL-2015-282 Court of Appeals S t a t e o f N e w Y o r k _________________ 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, 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, For a Judgment Pursuant to CPLR Article 78. BRIEF OF AMICUS CURIAE MUNICIPAL LABOR COMMITTEE STROOCK & STROOCK & LAVAN LLP Alan M. Klinger Dina Kolker 180 Maiden Lane New York, New York 10038 (212) 806-5400 aklinger@stroock.com dkolker@stroock.com Co-Counsel for Amicus Curiae GREENBERG BURZICHELLI GREENBERG P.C. Harry Greenberg 3000 Marcus Avenue, Suite 1W7 Lake Success, New York 11042 (516) 570-4343 hgreenberg@gbglawoffice.com New York County Index No.: 401425/11 Printed on Recycled Paper TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ................................................................................ I INTEREST OF AMICUS CURIA£ ............................................................................ 2 BACKGROUND ........................................................................................................ 3 POINT I "COLLECTIVE BARGAINING" IS A CONTINUOUS PROCESS ENCOMPASSING CONTRACT ADMINISTRATION .......................................................................... 7 POINT II THERE IS NO BASIS ON WHICH TO DISTINGUISH DISCIPLINARY AND OTHER CONTRACTUAL GRIEVANCES UNDER THE NYCCBL ....................................... 13 POINT III THERE IS NO SUPPORT FOR THE CITY'S HYPERBOLIC PREDICTION THAT THE BOARD WILL BE INlJ~TOATED \VITH "DISCOVERY" DISPUTES ................. 22 CONCLUSION ....................................................................................................... 26 -1- TABLE OF AUTHORITIES Page(s) Cases 60 Mkt. St. Assoc. v . Hartnett, 153 A.D.2d 205 (3d Dep't 1990), affd, 76 N.Y.2d 993 (1990) ......................... 18 Antonopoulou v. Beam~, 32 N.Y.2d 126·(1973) ........................................ ..... ................................... ........ 1·0 Bell .Atlantic Com~ v ~ Twombly, .550 u.s . .544 (2.007) ............. ........................................ ...................................... 11 Civil Serv. Employees Ass1n,.Inc. v. Newman, 88 A.D.2d 6-85 (3d·D~p't 19:82), acffd, 61 N.Y.2d 1001 (1984) ........................ 19 Conley v. Gibson, 355 u.s. 41 (1957) ........................................ ....... ............. ............... ......... ..... .. .. 11 Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D:3d l3 (2d Dep't 2009) ..... ...... ......................................................... ......... .18 LaS:o:nde v. Seabrook, 89 A.D.3.d 132 (1stDep't 20.1 1) ................... .... .... ................. ................ .............. 18 N.b.R.:B. v . .City Disp:o.sal Syst.ems, .In.GJ., 465 u . .s· .·822 (19'84). ................................................... ................................... 11, 14 Matter of City of New York v. New York State Nurses Assn., 1~0 A:Il.3d 2~, 35-36 {lm Dep't 2€H5) ... ;; ........... · .... ; .................................... 6,-17 MatterofPfttu v. Pub. Employ. Rei. Bd., 69 A.D.3d 1080 (3d Dep't 20 10) .............. ..................... ... ............................. 6, 20 Siwek v. Mahoney, 39 N.Y.2d 159 (.1976) ..... ....................................... .............................................. 1.8 The C1ty of New York v. New York State Nurses Assn., No. 401425/11,2012 WL 1669810 (Sup. Ct., New York Cnty. May J., 2012) ................................................................ ..... ... .... .... ...... ........... ........ ..... 6 -ll- Statutes New York City Collective Bargaining Law ("NYCCBL") ............................. passim NYCCBL § 12-306(a)( 4) ............................................................................................ 5 NYCCBL §12-306(c)(4) ............................................................................................ 5 Other Authorities DC 37 Citywide Agreement, Article XV, Sec. 4, available at http:l/wwwl.nyc.gov/assets/olr/downloads/pdf/collectivebargainin g/1995-200 1-citywide-agreement-l.pdf ............................................................ 18 NYSNA Health and Hospitals Corporation agreement, the Uniformed Sanitationmen's Association, Local831 IBT agreement, available at http://www l.nyc.gov/site/olr/labor/labor-recent-agreements.page ............... 19 N.Y.C. Admin. Code§ 12-303(k) .............................................................................. 3 N.Y.C. Admin. Code§ 12-313 .................................................................................. 3 -lll- PRELIMINARY STATEMENT Proposed amicus curiae New York City Municipal Labor Committee ("MLC"), the umbrella organization for some 340,000 active City civil servants grouped into well over 100 union-represented bargaining units, submits this brief because the issues raised in this appeal will have a broad-reaching impact on all unions and employees under the jurisdiction of the New York City Collective Bargaining Law ("NYCCBL"). The issue ofhow a union's statutory right under the NYCCBL to obtain information from the employer in aid of collective bargaining applies to contractual grievances addressing both disciplinary matters and other terms and conditions of employment is of critical import to the MLC's constituent unions. Without access to such information, unions would be unable to make informed representation decisions in line with their statutory duty to fairly represent their narrow m proceeding. The assertions and legal arguments underlying the City's position that certain NYCCBL rights only apply "core" collective bargaining, defined as across the table negotiation of successor - threatens the continued mature and productive labor relations between MLC-member unions and the City that have evolved to date. Such restrictions on what is collective bargaining run counter to the well-established public policy in favor of the peaceful resolution of labor disputes. Further, the City's baseless predictions that any application of the existing statutory right to disciplinary grievances would result in a parade of horribles modeled on commercial civil discovery disputes is demonstrably wrong and should not sway the Court from affirming the First Department's holding. Accordingly, the MLC seeks amicus relief in order to provide the Court with a unique and helpful perspective on the full scope of actual collective bargaining relationships and the potentially harmful impact of the forced distinctions the City seeks to make between types of grievances commenced under the same contractual process. INTEREST OF AMICUS CURIAE The issues raised in this proceeding are of significant concern to the City's and their TheMLC an of New to concerns common unions and advocating on issues of labor relations relevant to City workers. See accompanying Affirmation of Alan M. Klinger, dated November 11, 2016, ~ 4 Aff'). -2- The MLC is organized pursuant to Sections 12-303 and 12-3 13 of the Administrative Code of the City of New York and is an association created pursuant to a Memorandum of Understanding dated March 31, 1966, signed by representatives of the City ofNew York and certain employee organizations. The public employees represented by the MLC serve the public welfare, health and safety on a daily basis. The MLC was created in conjunction with the very law being interpreted in this pr-oceeding, the NYCCBL. See N.Y.C. Admin. Code §12-303(k); 12-313. Given the coterminous scope of the NYCCBL's jurisdiction with the membership of the MLC, the interpretation of the NYCCBL is particularly significant to and within the unique experience of the MLC and its members unions. The MLC believes that this pract ical experience in the operations of City labor relations will provide the Court w ith special assistance and perspective on the issues presented in thi-s case, the resolution of which would have a critical impact on the rights of the MLC' s constituent unions. BACKGROUND The New York State Nurses Association ("NYSNA") is a public employee union representing certain employees of the New York City Human Resources Ad.ministration (''HRA") and a member-unioQ of tll,e MLC. NY$NA and the.City are parties to a coHective bargaining agreement ("CBA") covering, among others, -3- HRA, within the jurisdiction of the NYCCBL and, accordingly, the New York City Board of Collective Bargaining (the "Board"). Like many other City collective bargaining agreements, the NYSNA CBA sets forth provisions for a grievance procedure, including those grievances relating to employee discipline. (R. 60-65). The improper practice ("IP") petition underlying this matter arose from an information request made by NYSNA pursuant to the 1\TYCCBL in connection with its representation of two members who had been charged with misconduct. (See Brief of Respondents-Respondents NYSNA, dated Aug. 9, 2016 ("NYSNA Br."), 7-9; R. 119-22). Pursuant to the ~rvSNA CBA, challenges to such charges may proceed through the contractual grievance process. (R.60-65). By letter dated December 4, 2009, the NYSNA Nursing Representative requested certain infOrmation related to the disciplinary charges to "polic[ e] compliance with applicable contractual provisions, determin( e] whether a was Br. · R. 484, ~12). HRA categorically refused to provide any of the requested information. Despite this refusal, the Step 1 hearing occurred on December 14, 2009. (R. 402- 04, ~~44-53). NYSNA reiterated on -4- subsequently received letters on December 29,2009 and January 15, 2010, respectively, sustaining certain of the charges against them. On February 16,2010, NYSNA filed an IP petition with the Board, alleging that the City and HRA violated §12-306(a)(l) and 12-306(c)(4) of the NYCCBL by failing to provide the requested information. In opposition to ~rySNA's petition, the City argued that neither §12-306(a)(l) nor 12-306(c)(4) impose an obligation to provide information relating to a disciplinary grievance. The Board found that the City had committed an improper practice, determining that the obligation to supply information in connection with a disciplinary grievance is encompassed in the right to information contained in NYCCBL §12-306(c)(4), which requires employers "to furnish 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 the scope of bargaining. it within the scope of[§l2-306(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. 35). Subsequently, the City sought to annul the Board's Supreme Court, New York County. -5- an Article 78 petition in The Supreme Court found that Board's decision was arbitrary and capricious. Rejecting the Board's reading of the principal case relied upon by the City, Matter ofPfau v. Pub. Employ. Rei. Bd., 69 A.D.3d 1080, 1082 (3d Dep't 201 0), it determined that unlike other grievances, " [d]isciplinary proceedings are intended to promptly resolve allegations of employee misconduct." According to the court, ' 'the starkly disparate roles of contractual grievances and employee disciplinary proce,edings" warranted a conClusion that the BCB's findings were erroneous. The City of'New York v.I'few.Y()rk ~ta~eNurses Assn., No. 401425/1 1, 2012 WL 16698l0{Sup. Ct., New York Cnty. May 3, 2012). This decision ultimately rested upon several erroneous presumptions and omissions, which the City has exacerbated in its arguments before this Court. Among them is the proposition that a request for int:ormation associated with a disciplinary matter is substantively ·distinct from a request for information associated with any other matter as it is not part of the "core" collective bargaining function of a union. NYSNA and the Board appealed the court's decision. The Appellate Division, First Department, affirmed the Board 's determination and rev,ersed the lower court's decision, holding that the Board 's decision was entitled "substantial deferen-ce;'' Matt~r'Of City of New Y t)fk v. N~w York State, Narses Assn .. , 130 A.D.3d 28, 35-36 (1st Dep't 2015). The First Department held tha:t the lower -6- court's reliance on Pfau, supra, was inapposite given the explicit contractual inclusion of disciplinary charges in the grievance process and that the absence of a contractual disclosure provision could not be read as a waiver of statutory rights conferred by the NYCCBL. Id. POINT I "COLLECTIVE BARGAINING" IS A CONTINUOUS PROCESS ENCOMPASSING CONTRACT ADMINISTRATION At its core, the City's argument asks this Court to artificially (and unrealistically) limit "collective bargaining" to solely that component of labor relations where the parties sit across the bargaining table to negotiate the terms of a new collective bargaining agreement. The City resorts to this extreme and dangerous argument because it cannot meaningfully differentiate between one and another type of grievance provided for in a contractual grievance process. As explained Point II, that is because once disciplinary due process rights are a no on same contractual To compartmentalize collective bargaining in the manner suggested by the City would undermine the existing practices and relationships within City collective bargaining, which, in practice, are far from the expedient legal arguments set down in the City's brief Collective bargaining is not and has never -7- been limited to the "formulat{ion] and evaluat[ion] of proposals at the bargaining table," as the City asserts. See Brief for Appellants, dated June 10, 2016 ("City Br."), 4. Enforcing and administering a collective bargaining agreement and the union-management relationship on behalf of unit members is not "divorced from collective ·bargaining" (City Br. 5). It is collective bargaining. If collective bargaining is the wedding ceremony, then contract administration is the marriage itself. It is the substance of the c·oUective bargaining rehitionship that extends years between fortnal bargaining over successor agreements. It is rife with hundreds of smaller negotiations and compromises, sometimes rising to the level of a side agreement and often being resolved by telephone calls, emails or other writings memorializing an understanding on one o f a hundred issues relevant to workers. An agreement, reached across the table, is a piece of paper~ It is animated, imp~emented and enforced on a daily basis, including through the grievane.e and arbitration process. It is the commitment to work through misunderstandings and disputes together between labor and management that deJines "collective bargaining" and the policies embodied in the Taylor Law and the NYCCBL, not the once-every-several-years ritual of reaching a successor agreement, whieh can he tke most contootio.u.s and least '"coUective" part of the process. Accordingly, it is the City's description in its brlef(though, from the -8- MLC's experience, not the City's approach to labor relations in practice) that is "divorced" from actual collective bargaining relationships in New York City. The City admits that the NYCCBL right to information (not wide-ranging discovery) is part of the broad duty to bargain collectively in good faith (City Br. 17), yet denies that it should apply beyond the bargaining table as does the duty to bargain in good faith. As pointed out by NYSNA in its brief, disciplinary proceedings and due process rights of employees fall squarely within the duty, just like the enforcement of other parts of the CBA. (NYSNA Br. 19-20). Moreover, the City's apparent position is contrary to decades of labor relations scholarship, practice and law that recognizes that "contract administration" is a natural and necessary component of collective bargaining. It is hardly a "nebulous" concept, as asserted by the City, for what is a contract worth if the union has no power to meaningfully and with relevant information enforce it? It is immaterial whether or one it process protections for employees charged with discipline benefits all covered employees. By elevating the collective agreement its intended purpose, the City turns the strong public policy in favor of collective bargaining on its head: the purpose of the law is to establish peace fill procedures for resolving -9- disputes and maintaining labor peace. While the agreement m.emorializes these procedures, it is the living procedures themselves that effect labor peace. As the Court of Appeals has explained in applying the Taylor Law: it the public policy of our State to encourage 'public employers and ... employee organizations to agree upon procedures for resolving disputes.' In furtherance of this policy., it vests in ·employee organizations 'the right to represent public eniptoyees not only in connection with neg()tiations as to .terms and conditions of-employment but also as to 'the administration of grievances arising ther?under. ' See Anto~opoulouv:· Beame, 32 N.Y.Zd 126, 131 (19-13) (adopting the Supreme Court's observation that collective bargaining is a continuous pro·cess) (internal citations omitted)( emphasis added). The Court of Appeals went on to adopt the tower court's holding that '"[t]he processing of disputes through the grievance machinery is actually a vehicle by which meaning and cont ent are given to the collective bargaining agn~ement .. . The griev.ance procedure is, in other words, a part ofthe continuous collective bargaining process.,; hi (emphasis added). The Court concluc.led. that ''[aJ s_yt,t~e:ment aqive4 at through gm a;gr.~e<,l upon grievance procedure is thus as much a cont emplated part of the parties' collective bargaining agreement.as any express term contained therein." S;ee id. This premise i,s universally true of federal labor policy as well. As e~plained by the Supreme Court: -10- The invocation of a right rooted in a collective- bargaining .agreement is imq~estione1bly an ..integral part of the process that gave rise to the agreement. That process - beginning with the orgitnization ofa union, continuing into the negotiation of a collective-bargaining agreement, and extending through the enforcement of the agreement- is a single, collective activity. Obviously, an employee could not invoke a right grounded in a coUective .. bargaining agreement were it not for the prior negotiating activities of his fellow employees. Nor would ·it make sense for ~nrru<:m to negotiate a collective- bargaining agreernentif individual employees could. not invoke the rights thereby created against thyit employer. Moreover, when an employee .invpkes a tight grounded in tbe colle;ctive-bargaining agreement, he does.Ju)t stand " . . . .. alQn~. fustead, he brings to bear on his employer the power atid'tesofve of ail his fellow employees . See N.L.RB. v. City Disposal Systems, Inc., 465 U.S. 822, 831-32 (19:84) (holding in the NLRA context that truck driver's refusal to drive what he considered an f unsafe truck was "concerted activity'; under the NLRA, despite no other drivers joining his complaint)(emphasis added): See also Qonl~~y. Gibson, 355 U.S. 41, 46 {1957), ahro:gated on ot11~r grounds, .Bell Atlantic Corp. v. Two:n:rbly, 550 U.S. 544 (2007) (holding that "[ c]oBective bargaining is a continuing process. Among other things, it involves day-to-day adjustments in the contract and other working rules; resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract"). In the MLC' s experience, the practice of labor relations irt New York City follows the above policies, though the City's rhetoric in this case diverges. Still, -11- the City is forced to acknowledge some aspects of the policy. For example, the City recognizes that the right to information is a "mechanism for correcting the informational asymmetry that frequently exists between employers and unions." (City Br. 5). Correcting this imbalance furthers the peaceful dispute resolution process. Yet, the City chooses to ignore that the same asymmetry exists in the context of representing members in contractual and disciplinary grievance. Consider the information requested by NYSNA here, the most obvious of which is a copy of the policy which the employees were alleged to have violated, itself a subject of bargaining: (R. 119-22). How can the union reasonably make determinations with regard to the policy and any grievances touching upon it without the policy itself? In furtherance of its myopic view, the City describes an improper practice charge related to core "collective bargaining" as typically alleging "management an a table" (City Br. 6). But the same can be said of the manner in which the parties enforce those agreements. The same management overreach evidenced by a unilateral change to a subject that ought to be covered in a collective bargaining agreement an example management when the employer acts unilaterally in derogation of the CBA. Indeed, many actions taken by -12- management that may be claimed as unilateral changes also give rise to a claimed violation of the CBA. The very same changes to policy or work rules that constitute a unilateral change are at the heart of disciplinary grievances alleging that agreed-upon (or unilaterally imposed) work rules were violated by an employee. How can the creation of an unwritten lateness policy be directly and obviously related to collective bargaining such that the Union would have the right to request information regarding the poiicy, but not reiated to collective bargaining when an employee is charged under the same undisclosed policy with misconduct? The line the City attempts to draw is not just artificial, it has no foundation in the 1\JYCCBL or the Board's and the Court's prior precedents. a POINT II THERE IS NO BASIS ON WHICH TO DISTINGUISH DISCIPLINARY AND OTHER CONTRACTUAL GRIEVANCES UNDER THE NYCCBL Further distorting the actual practice of labor relations, the City's brief uses as it were a or not strip that member of his or her right to be fairly represented by the union nor of their place in the overall collective bargaining relationship between labor and management. That a grievance raises facts based upon of an individual does not necessarily limit the impact and import of the grievance or -13- charge to imagined individual subjects outside the scope of "collective bargaining." There is no requirement that unions limit their representation only to those topics which i.mpact all or even the majority of their constituents. "Collective" bargaining is collective because its leverages the comparatively stronger position of employees when they band tog.ether and speak through one voice against the power held by the employer, not because it precludes "collective" support of an individual. As noted above, the Supreme Court has recognized that in the union context an individual invoking a collectively bargained right "do~s not stand alone ... [i]nstead, he brings to bear on his employer tb.e power and resolve of all his fellow employees." See City Disposal Systems, Inc., 465 U.S. at 831-32. Collective bargaining agreements do not require the employer to comply with their terms generally or only in the majority of cases. They empower every individual covered by the agreement to enforce their rights vis-a-vis the :employer with the torce and authority of the union behind them. Onions provide support for the defense of such individual rights; they do not remove them from the realm of -14- "collective bargaining."1 If this were not the case, where would the line be drawn? Would representing the interests of five members be sufficient to place an issue within the realm of "collective bargaining"? Would the answer change if the five members were five of 3 5 total unit-members as compared to five of 80,000 unit- members? Is the City literal in its derision for purely "individual" issues? If a second or third person could be found who was impacted would that suffice? Presumably a third would be needed, since NYSNA was in fact representing two employees at the same time in connection with related charges. Indeed, given the size of the represented group employed by HRA (29), its representation of these two nurses amounted to representation of nearly 7% ofthe group. That, of course, is not how unionization works. The collective gives weight and force to individual and group issues alike, it does not strip individual issues of their important, for enforcement of collectively bargained rights with respect to a concern. disciplinary matters an indistinguishable part of the contractual process and that is a mandatory designation does not make the discipline of a union member a proper subject of bargaining. Core .. collective bargaining" pertains to discipline in the "general sense, , only "governing processes procedures," not application. (City Br. n. 1 0). In the the union's core role is to simply set up the and then back and not "collective bargaining" into their actual application and enforcement whether it is with regard to one or l 0 members. This view is contrary to the policy of peaceful dispute resolution which is the foundation of labor policy in New York and in the federal arena. -15- Second, the notion of a dichotomy between "collective contractual grievances" (City Br. 21) and "individualized grievances that might hypothetically flow from disciplinary proceedings" (id.) is entirely invented. The idea that contractual grievances are more likely to allege misapplication or misinterpretation of provisions of the CBA and thus more likely to present "questions about matters that have been negotiated" and agreed upon and implicate the union's role as representative of a "range of employees," and that disciplinary charges do not implicate the agreement or the rights of others is simply false. (City Br. 23). The very work rules and policies the union negotiates, and whiCh the employee can grieve an employer violation of are the same work rules often claimed to have been violated by the employee in a disciplinary charge. The same negotiated work rule can be interpreted by a member alleging the employer violated it or by the employer alleging misconduct on the part of a member. Wl1ether a supyrvisor does not adh~te to the policy resulting ifi a "contractual grievance" or an employee is alleged to have violated the policy, resulting in a disciplinary charge, the union's legitimate interest in the negotiated terms of the agreement or policy does not change. In fact, the City's own explanation of the sometimes difference between contraetual grievances and disciplinary grievances itsel.f.fails to support a blank0t rule that tl}e NYCCBL fails t-o apply to disciplinary matters. Rather, it supports -16- consideration of the statutory right to information based upon the facts presented and the information requested in each case. Both contractual grievances and disciplinary grievances have the potential to primarily impact the individual or have much broader import for the union and its membership Yet the decision as to whether a particular disciplinary grievance (or contractual grievance) is sufficiently significant to the union and its membership is a determination relegated to the union and not to management, just as it is the union's decision whether to pursue the .;grievance to further stages of the pro.,cess, As th.e Board found in this case, not every information request will be appropriate or reasonable to the circumstances (R. 26~43), but a categorical denial of all information is not supported by the facts or the law. To be clear, this practical reality is not a cause for the parties to inundate the Board with requests to resolve such matters, as explained in Point III. Onc.e this Court .dec:lares the law to app1y to all grievances, the treatment of information requests pertaining to "disciplinary" gri~vances and those rela,:ting to other contractual grievances wiH be on ·equal footing. Given that equality, there is no reason to expect (unless the employer intends to decline to comply with the Court's .order) that there will be any more disputes relating to information requests than there already have been historically _2 2 Indeed, even the current dispute did not prevent the ·employer from sustaining the charges during the step process, despite the pending .IP. As pointed out by the Appellate D'ivision, any delay in the instant case resulted from this dispute over the scope of the law and is not indicative -17- Moreover, the City's assumption that contractual grievances are more likely to raise issues impacting groups of employees is belied by common provisions found in many City collective bargaining agreements. A review of the most recent collective bargaining agreements entered into by the City with various unions and units reveals that the basic contractual grievance process typically contemplates an individual grievance brought by an individual employee? Many such grievances require little disclosure and pertain to individual mistakes or misapplications - e.g., mis·calculations of overtime pay or vacation selections - which are limited to the rights of individual members and .often readily resolved. The agreements typically provide for a separate process in instances where the union itself seeks to commence a group grievance on behalf of multiple named or unnamed members. Such union-initiated grievances typically skip the first step or step.s of the of how long the process would have taken if HRA has pro.duced. wflat was ultimately ordered by the Board. Matt~cofCityof;~~ewYork 'Y.N.e'o/ Yot:kS~:at~Ntl:r:se:S ~~s:n.~ 130 A.D.Jdat 3.5-36. 3 As the issues in this matter center om. public sc.ct!Yr labor relations regul;ated by srate law anti l~~a:llaw~ S"@.ro.e t~ associated v.ti;tb, tb~~e.·.rftla.-ti9.n~rups ~re, j:n.tP,~ ,P:1JlMi¥ dolllain~ r~tl~gt official government action, and are memorialized in government documents made available. to fhe public. t he Court may take judicial notice of such objective information. See :Siwe,!<.v.:, Mahoney, 39 N.Y.2d 159, 163 n.2, (1976) (stating that " [d]at a culled from public records i.s, of cqurse, c(p.roper subj~~t ofjuqjci.a1I1otice'J; La-S.ondev. '8¥abtook, 89 A.D.3d 132; :137, n.8 (1st D~p't :tOll) (stating tfiaf a Couti may·•~take jJdfci~l nliltice ~f irtaterlal d'erfved from 'offi:cia'l government Web sites?'); Kingsbrook JewishMed. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13, 19,20 (2(1 Dep't 2009) (stating th~t'~the conc~pt ~f Jod'i:cia1 ~~,tice is ela$tl~ ... and ap:pii~~le to a wi_(Je ra~~ qf subject utart.eJ+'' in·eluding c~a.in aetiQ~as..,of ·~puhli~ oftl.cials'' ap\,l "material <,l~dv~{il from official government Web sites"); 60 lvfkt. St. Assoc. v. Hartnett, 153 A.D.2d 205, 208 (3d Dep't 1990), affd, 76 N. Y.2d 993 (1990) (stating that the court may take judkiaJ notice of ''-inf"OrmatioB" that "it is a matter .of public record''} .. -18- grievance process and are commenced at a later stage which involves higher ranking management counterparts. See ~' DC 3 7 Citywide Agreement, Article XV, Sec. 4 (providing for group grievances to be commenced at Step III by the union), available at http://wwwl.nyc.gov/assets/olr/downloads/pdf/collective bargaining/1995-200 1-·citywide-agreement-l.pdf. 4 This two-tier process is evidence that contractual grievances come in individual and gtoup varieties and cannot be labeled as distinct from disciplinary grievances based upon their universally "collective'' nature. This) however, is not to imply that an individual member may seek disclosure under the NYCCBL. Unlike s6me contractual discovery provisions which set out the types of materials required to be disclosed within set time frames in each case, the information right under the NYCCBL belongs to the union and not the member. 5 To exercise it, the union necessarily 4 Similar pr.ovisi0tls may be1bund in the various 1199 SEIU agreements, The NYSNA Iie~tth ~n:d. l:io~pit.a'ls Corporaf.io!l agteem~nt, iQ.e Unifor.tned. :Sa.njt~tionmen~ s Assocj_atio~ Local 831 IBT agreement, made available to pubHc by the Mayor's Office of Labor Relations at http.:l/wwwl.nye.gov/site/olr/labor/labor-r-ecent-agreements.page . . '.'· .. 5 Accordingly, that son1e City collective bargaining agreements include specifi.c discovery prov:i'Sions d-o·es limit the application and. scope -of ,me 1\TYCCBL Those c-ontractually agreed to provisions would not be altel'ed by this Court clarifying the application of the default statutory right to djscipljtlary grievances. Th:at so!lle uni'o_ns fe1t more s.pecifi.c procedure.s or timelines "vere m~eded or that fndivid\la1s should 'De able ·ex(!rc1se the entH:F~metit t6 disdostire does not i!flplicitly write into the agreements of other un{ons a waiver of :!PP1icab1e statutory rights. The City admits, though grudgingly,_ that the right to infottna:tion under the NYCCBL applies to c~ntra~tlial gr4ev(Jaee,s d~~ite th~ al~8~B~>;t~ of a contraeju~l "gi-S~~:v~ry" pnP:¥.isiQ~ Thus,. the absence of such contractual provision with regard to disciplinary grievances is equa:Uy intrnateriaL A statutory right is not to be implicitly waived. Rather, ''[a] waiver is 'the intenti0t1a:l relinqtrishlnent of a known :r:igbt with boib knowledge of its existence and an intention to relinquish it."' Civil Serv. Employees Ass'n, Inc. v. Newman, 88 A.D.2d 685, 686 -19- makes the determination that such information is required for it to fulfill its function as the bargaining representative. So long as the requested information falls within the scope of statutory right, it is not for the City to categorically determine that the union should not step in to this or that type of grievance. The City harps on the fact that the NYSNA CBA does not explicitly require discovery. (C ity Br. 8). That is not the question before the Court. The question presented is whether the statute provides a right to certain information (not "discovery") in connection with contract administration, not whethe r the parties contractually provided for or m.o:di:fied such right. Despite the City ' s attempt to itnproperly call into question the application of the right to information to contractual grievances, there is no serious question as to the application of the information right with regard to contractual grievances, despite the CBA not . d. .c: ~'d. " . th xt . t:.. · 6 E. h · S C 1...: h prov1 mg :t.<>r · •lScovery m ·. at conte ·' ettr1er. · ven. t e ·. upreme . ourt, Wn '!C (Jd Dep't 1982), affd, 61 N.Y.2d. l001 (1984) (finding insufficient reoord evidence to suppott conc1usion that union had waived its right to negotiate certaoin matters} 6 The City attempts to indirectly undo the well-settled doctrine that the information right applies to ·"contract administr(lltio.n" by confusingly arguing that that the Board's reasoning is "1ogicaUy flawed" because it relies on the said same doctrine. lnqeed, there is no rea.sonable disiinc#Qn betwe;en the .?,\dminiS.ttation of one.c:on;tractu~Uy 4~fJl1ed grjevane~ an? ano.t~er. Accortling1y, .the City i's-forced to argue that even this well-settled ,(t6ctri.ab ~~fad<:s· grouttding 1n . . any ~tatutory text" and is of "questionable foundation" (City Br. :?0). But this i$sue is not before the Court. That the infonnati.on right attaches to contract :a4mi:his1~.ation, irtcl:trdjng tni? a!ljus.tntent of g;ri~ta:nees, bas been .aecept~d as fl.!)'il'Rda~ionaJ .b:y everyJ:evel0f revie--w thus .fur,. including the Supreme Court, which based its determination not on the purported questionable nature of contact administration, hut on a misFeading of Matter ofPfau v. Pub. EmQloy. Rei. Bd., 6-9A:D .3cl l 080 (3dDep't 2010) (au argumentadd1:essed fuUy.1n ,brie:fing:by NYSNA, the Board and amicus curiae, PERB). -20- erroneously found in favor of the City's position, described it as the "acknowledged right of a union to obtain information relevant to contract interpretation grievances." (R. 20). That touchstone compels the City to attempt to qualitatively differentiate such contractual grievances from the disciplinary grievances at issue here, which it cannot meaningfully accomplish. As explained herein, both contractual and disciplinary grievances may raise either issues mainly of individual import or issues of much broader application and import. When a contractual grievances is limited to an individual's interests- for example, a miscalculation of pay contrary to the CBA that is not indicative of overall practice - does not make the NYCCBL inapplicable to that grievance. Likewise, a disciplinary charge may be part of an overall policy shift relevant to all employees, though raised in the first instance as part of an individual charge, making a related information request appropriate even under the City's characterization of subjects appropriate -21- POINT III THERE IS NO SUPPORT FOR THE CITY'S HYPERBOLIC PREDICTION THAT THE BOARD WILL BE INUNDATED WITH "DISCOVERY" DISPUTES City Br. 15. The Board's ruling below, implying a statutory right where none exists, will sidetrack the [efficiency and continuity of City civil service] in discovery skirmishes adjudicated through improper practice petitions at the Board, an agency ill-equipped to resolve them. The above argument finds no basis in the record or fact. Yet, it is on this imagined descent into the "nettlesome" issues of large scale civil litigation discovery that the City relies In an attempt to alarm the Court from affirming the decision of both the Board and the First Department. In fact and in the MLC's experience, disputes regarding the statutory right to reasonable information (a right far narrower than civil litigation discovery), are dramatic for how few such disputes arise, not how many. disclosure of certain information as provided under the NYCCBL) are fraught with disputes and delay in court, the same will necessarily result before the Board if this Court affirms the First Department's decision. Yet, there is a much more apt and appropriate comparator for disciplinary grievances than commercial -22- unions under the same agreements and grievance processes indisputably covered by the statutory information at issue here. Thus, rather than look to complex commercial litigation under the CPLR or the Federal Rules of Civil Procedure, reason requires that the Court be guided by the much closer experience of the parties and, indeed, the Board, with regard to improper practice charges alleging inform:ation disputes in connection: with contractual grievances. If applying this same circumscribed statutory right to disciplinary grievances were to result in a "flood'' of improper practice disputes, then one would expect at least a substantial docket of similar disputes plaguing the Board in connection with contractual grievances. That is not the case. Based upon the Board's statistics, it is clear that no such catastrophe should be expected by either the parties or the Board (let alone the other multitude of City unions). The MLC requested relevant data regarding the numbers and types of information request improper practice charges filed with the Board for the years 2007 through 201'6. S·ee Klinger Aff .. , ~ 7, Ex. A. The Board's response revealed that a total of 28 such charges (including the one underlying this case) were brought in the nearly 1 0-year period, with only one year seeing more than four charges (2012), and 2016 revealing no filed charges through August. See Klinger Aff, Ex. B (one adc:htiona'l charge was-filed andaismi&sedatth:e E:xecutiv.e -23- Secretary review step). 7 The number of such ·charges that 'l'CtuaHy proceeded to a Board decision is even more strikingly small, with only 10 decisions being issued in the 10-year period and no decisions having been issued between 2014 and 2016. ld. The categories of such improper practices charges is even more revealing, demonstrating that, .contrary to the City's argument, information had been sought and provided under the statutoty right in connection with disciplinary grievances in the past. Indeed, Board statistics reveal that since 2007 more than 21% of the information right irnproper practice charges were brought in connection with a disciplinary grievance. ld. A table summarizing the categories of charges is provided below: 2016 (thru.A~g) · ·Contractual G-n.ev~pces 0 0 1 0 3 0 0 0 Disdplin;t.J")' Griev~n.ces CQ1Jtr.act · Antldp,at~41File~d- ' .(Jpdqfll~:s NYSNA) . AdminJs1r~tio:p . JP Pe~itio,n _ 0 0 I 1 0 0 1 I 1 0 1 0 1 1 3 I 1 1 t 2 0 ·:A -· .. ,,, ,-: _,, l .1 0 0 0 8 9 . .. ,_ -- •• " ' ... . , v , ... , , il0lo .. , .:., .. , _ J . 7 Bee discussion supra at 18, n. 3 regarding. the Court's ability to take judicial notice of data provided by government entities. -24- Of the six charges pertaining to disciplinary grievances, only two resulted in a Board decisions, with one of those being the underlying decision in the instant matter. These statistics hardly constitute a "flood" of litigation regarding information requests of any kind, let alone those pertaining to grievances. In general, it is the MLC' s belief, based upon its experience and supported by the paucity of related Improper Practice charges brought to the Board, that with the benefit of this Court's clarification of the law, City employers and unions will be able to reach an understanding on information requests without the need for excessive outside intervention. Even so, the potential for an uptick in the number ofiP charges filed in connection with information requests is not a proper basis on which to read the right to such information out of the statute. The Board exists to resolve disputes as to the application of the NYCCBL. That the Board may be called upon more frequently perform that statutory information cases not a legal on umons -25- CONCLUSION Wherefore, proposed amicus curiae MLC respectfully submits that the Court should affirm the decision of the Appellate Division, First Department preserving the statutory right to information in connection with disciplinary and contractual grtevances. Dated: New York, New York November 11, 20 16 GREENB£RGBURZICHELLI GREENBERG P .C. Es ., . :,_ - ~-: . .}•·,·-~-· - . ., ..... ';...• venue, Smte 1 \V 1 Lake 8ne-cess, New York 11042 (516) 570 4343 hgr.eel.'iberg@gl:?gla wof.f.i ce.com Co~Counsel for Proposed Amicus Curiae -26- WORD COUNT CERTIFICATION I hereby certify pursuant to 22 NYCRR §500.13(c) that the foregoing brief was prepared on a computer using Microsoft Office Word, using typeface Times New Roman, 14. The total number of words in this brief is 6,684 Dated.: New York~ New York November 11 , 2016 STROOCK & 8 ·· ROOCK & LAVAN LLP J Alan · • •: ing .. Dina : ' tker · . . 180 Maiden Lane ' New York, New York flW38 (212) 806~5400 akling,er@stroock.com GREENBERG BURZICHELLI GREENBERG P.C. Co-Counsel for Proposed Amicus Curiae -27-