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: JOSEPH J. VITALE (Time Requested: 15 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 NEW YORK STATE NURSES ASSOCIATION AND KAREN A. BALLARD, AS THE [FORMER] PRESIDENT OF THE NEW YORK STATE NURSES ASSOCIATION COHEN, WEISS AND SIMON LLP Attorneys for Respondents-Respondents New York State Nurses Association and Karen A. Ballard, as the [Former] President of the New York State Nurses Association 330 West 42nd Street, 25th Floor New York, New York 10036 Tel.: (212) 563-4100 Fax: (212) 695-5436 Dated: August 9, 2016 i RULE 500.1(f) DISCLOSURE STATEMENT New York State Nurses Association, by and through its attorneys Cohen, Weiss and Simon LLP, as and for its Disclosure Statement pursuant to 22 NYCRR § 500.1(f), states: New York State Nurses Association has no corporate parents or subsidiaries. ii TABLE OF CONTENTS Page RULE 500.1(f) DISCLOSURE STATEMENT......................................................... i TABLE OF AUTHORITIES .................................................................................... v QUESTION PRESENTED ....................................................................................... 1 PRELIMINARY STATEMENT .............................................................................. 1 STATEMENT OF THE CASE ................................................................................. 3 I. BACKGROUND TO THE DISPUTE ........................................................... 3 A. The Parties ............................................................................................ 3 B. The CBA and the Contractual Grievance Process ............................... 4 C. NYSNA Information Requests Related to Employee Discipline ........ 5 II. The Underlying Disciplinary Actions, Document Requests and Board Decision, and the Lower Court Proceedings ................. 7 A. The Haile and Anderson Document Requests ..................................... 7 B. NYSNA’s Improper Practice Petition and the Board Decision ........................................................... 8 C. The Lower Court Proceedings ............................................................ 12 ARGUMENT .......................................................................................................... 14 I. THE BOARD’S DECISION, WHICH IS ENTITLED TO SUBSTANTIAL DEFERENCE FROM THE COURT, REFLECTS A RATIONAL AND REASONABLE INTERPRETATION OF THE NYCCBL .................................................... 14 A. The Board’s Decision Applying the NYCCBL Is Entitled to Substantial Deference, Particularly As the Board Is the Agency Charged With That Statute’s Implementation ................................... 14 iii Page B. This Court Has Not, As Argued By the City, Adopted a Rule that Labor Statutes Must Be Narrowly Interpreted ................. 16 C. The Board Decision Is a Reasonable and Rational Application of the NYCCBL .................................................................................. 19 1. It Is Beyond Dispute that Section 12-306(c)(4) Obligates Employers to Respond to Union Requests For Information in Connection With Contract Administration ...... 21 2. The Right to Information For Grievances Includes Information For Potential Grievances Over Discipline ........... 24 II. THE THIRD DEPARMENT DECISION IN PFAU DOES NOT PROVIDE A RATIONALE FOR REVERSING THE BOARD ................. 29 A. The Present Dispute Concerns the NYCCBL, Which Expressly Provides a Duty to Furnish Information ................ 30 B. Pfau Turned Upon Contractual Rights Attendant to an Administrative Process And Not, Like Here, the Public Employer’s Statutory Duty ............................................... 32 III. THE CITY HAS A “PRACTICE” OF PROVIDING UNION DATA REQUESTS MADE IN CONNECTION WITH EMPLOYEE DISCIPLINE ............................................................... 33 IV. THE BOARD’S DECISION DOES NOT CREATE IMPRACTICAL SITUATIONS AND IS NOT CONTRARY TO PUBLIC POLICY ........... 35 A. There Will Be No Inundation of Discovery Demands Leading to a Flood of Satellite Litigation .......................... 36 B. The Board Is Perfectly Capable of Resolving Any Future Improper Practice Charges Concerning an Employer’s Statutory Obligation to Provide Information.................. 38 C. The Production of Information Sooner, Rather Than Later, Will Make the Process More, Not Less Efficient .................... 39 iv Page D. The Disciplinary Process Under a Collective Bargaining Agreement Need Not Mirror the Process Under Civil Service Law....................................................... 41 CONCLUSION ....................................................................................................... 43 ii TABLE OF CONTENTS Page RULE 500.1(f) DISCLOSURE STATEMENT......................................................... i TABLE OF AUTHORITIES .................................................................................... v QUESTION PRESENTED ....................................................................................... 1 PRELIMINARY STATEMENT .............................................................................. 1 STATEMENT OF THE CASE ................................................................................. 3 I. BACKGROUND TO THE DISPUTE ........................................................... 3 A. The Parties ............................................................................................ 3 B. The CBA and the Contractual Grievance Process ............................... 4 C. NYSNA Information Requests Related to Employee Discipline ........ 5 II. The Underlying Disciplinary Actions, Document Requests and Board Decision, and the Lower Court Proceedings ................. 7 A. The Haile and Anderson Document Requests ..................................... 7 B. NYSNA’s Improper Practice Petition and the Board Decision ........................................................... 8 C. The Lower Court Proceedings ............................................................ 12 ARGUMENT .......................................................................................................... 14 I. THE BOARD’S DECISION, WHICH IS ENTITLED TO SUBSTANTIAL DEFERENCE FROM THE COURT, REFLECTS A RATIONAL AND REASONABLE INTERPRETATION OF THE NYCCBL .................................................... 14 A. The Board’s Decision Applying the NYCCBL Is Entitled to Substantial Deference, Particularly As the Board Is the Agency Charged With That Statute’s Implementation ................................... 14 iii Page B. This Court Has Not, As Argued By the City, Adopted a Rule that Labor Statutes Must Be Narrowly Interpreted ................. 16 C. The Board Decision Is a Reasonable and Rational Application of the NYCCBL .................................................................................. 19 1. It Is Beyond Dispute that Section 12-306(c)(4) Obligates Employers to Respond to Union Requests For Information in Connection With Contract Administration ...... 21 2. The Right to Information For Grievances Includes Information For Potential Grievances Over Discipline ........... 24 II. THE THIRD DEPARMENT DECISION IN PFAU DOES NOT PROVIDE A RATIONALE FOR REVERSING THE BOARD ................. 29 A. The Present Dispute Concerns the NYCCBL, Which Expressly Provides a Duty to Furnish Information ................ 30 B. Pfau Turned Upon Contractual Rights Attendant to an Administrative Process And Not, Like Here, the Public Employer’s Statutory Duty ............................................... 32 III. THE CITY HAS A “PRACTICE” OF PROVIDING UNION DATA REQUESTS MADE IN CONNECTION WITH EMPLOYEE DISCIPLINE ............................................................... 33 IV. THE BOARD’S DECISION DOES NOT CREATE IMPRACTICAL SITUATIONS AND IS NOT CONTRARY TO PUBLIC POLICY ........... 35 A. There Will Be No Inundation of Discovery Demands Leading to a Flood of Satellite Litigation .......................... 36 B. The Board Is Perfectly Capable of Resolving Any Future Improper Practice Charges Concerning an Employer’s Statutory Obligation to Provide Information.................. 38 C. The Production of Information Sooner, Rather Than Later, Will Make the Process More, Not Less Efficient .................... 39 iv Page D. The Disciplinary Process Under a Collective Bargaining Agreement Need Not Mirror the Process Under Civil Service Law....................................................... 41 CONCLUSION ....................................................................................................... 43 v TABLE OF AUTHORITIES Case Page Antinore v. State of New York, 49 A.D. 2d 6 (4th Dep’t 1975), aff’d, 40 N.Y.2d 921 (1976) ............................ 42 Matter of Arrocha v. Bd. of Educ. of City of N.Y., 93 N.Y.2d 361 (1999) ......................................................................................... 15 Matter of Caruso v. Anderson, 138 Misc.2d 719 (Sup. Ct., N.Y. Cty. 1987), aff’d, 145 A.D.2d 1004 (1st Dep’t 1988) ..................................................... 15, 16 Matter of Chenango Forks Cent. Sch. Dist. v. N.Y. Pub. Empl. Relations Bd., 21 N.Y.3d 255 (2013) ........................................................... 29, 32 Matter of City of New York v. Plumbers Local Union No. 1 of Brooklyn & Queens, 204 A.D.2d 183 (1st Dep’t 1994) ............................... 15, 16 Matter of Civil Service Employees Ass’n v. N.Y. Pub. Empl. Relations Bd., 46 A.D.3d. 1037 (3d Dep’t 2007) ............................................. 11, 23, 28, 30 Civil Service Technical Guild, 4 O.C.B.2d 61(BCB 2011) .................................................................................. 12 Committee of Interns and Residents, 35 O.C.B. 8 (BCB 1985) .................................................................................... 22 Correction Officers Benevolent Ass’n, 63 O.C.B. 9 (BCB 1999) ............................................................................... 20, 22 Correction Officers Benevolent Ass’n, 75 O.C.B. 17 (BCB 2005)............................................................................. 20, 22 Matter of County of Erie v. N.Y. Pub. Empl. Relations Bd., 14 A.D.3d 14 (3d Dep’t 2004) .....................................................................passim DC 37, 41 PERB ¶ 3009 (2008) ...................................................................................... 32 DC 37 v. N.Y. Police Dep’t, 67 O.C.B. 25 (BCB 2001)................................................................................... 20 vi Case Page DC 37, L. 376, 1 O.C.B.2d 37 (BCB 2008) ........................................... 22, 23, 24, 39 District Council 37, 6 O.C.B.2d 2 (BCB 2013) ................................................................................... 22 Dist. Council 37 v. City of New York, 22 A.D.3d 279 (1st Dep’t 2005) ......................................................................... 16 Matter of Hampton Bays Union Free Sch. Dist. v. N.Y. Pub. Empl. Relations Bd., 62 A.D.3d 1066 (3d Dep’t 2009) .........................................passim Matter of Howard v. Wyman, 28 N.Y.2d 434 (1971) ......................................................................................... 15 Matter of Incorporated Vil. of Lynbrook v. N.Y. Pub. Empl. Relations Bd., 48 N.Y.2d 398 (1979).................................................................................. 15 Jonas v. Stackler, 95 A.D.3d 1325 (2d Dep’t 2012) ........................................................................ 34 Matter of Judith A. Levitt v. Bd. of Collective Bargaining, 79 N.Y.2d 120 (1992) ............................................................................... 4, 15, 18 Martin v. Home Bank, 160 N.Y. 190 (1899) ........................................................................................... 22 Matter of New York City Dep’t of Sanitation v. MacDonald, 87 N.Y.2d 650 (1996) ......................................................................................... 15 New York City Transit Authority v. N.Y. Pub. Empl. Relations Bd., 276 A.D.2d 702 (2d Dep’t 2000) ........................................................................ 20 Matter of New York City Transit Authority v. New York State Public Employment Relations Board, 8 N.Y.3d 226 (2007) .............................. 16, 17, 18 vii Case Page NLRB v. ACME Industrial Co., 385 U.S. 432 (1967) ............................................................................................ 40 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1978) ...................................................................................... 17, 18 Patrolmen’s Benevolent Ass’n, 79 O.C.B. 6 (BCB 2007) .............................................................................. 22, 39 Matter of Pell v. Bd. of Educ. of Union Free Sch., 34 N.Y.2d 222 (1974) ......................................................................................... 15 Matter of Pfau v. N.Y. Pub. Empl. Relations Bd., 69 A.D.3d 1080 (3d Dep’t 2010) .................................................................passim Roberts v. N.Y. City Office of Collective Bargaining, 33 Misc.3d 1224(A) (Sup. Ct., N.Y. Cty. 2011) ................................................ 16 Social Services Employees Union, Local 371, 1 O.C.B.2d 11 (BCB 2008)........................................................................... 22, 39 Uniformed Fire Fighters of Greater New York, Local 94 v. City of New York, 106 A.D.3d 616 (1st Dep’t 2013) ............................................... 15, 16 Statutes Civil Service Law Art. 14 .......................................................................................... 9 Civil Service Law Section 75 ...................................................................... 36, 41, 42 Civil Service Law Section 76(4) .............................................................................. 43 Civil Service Law Section 202 .................................................................... 16, 17, 18 Civil Service Law Section 209-a(1)(d) .............................................................. 30, 31 New York City Administrative Code, Title 12 ......................................................... 3 National Labor Relations Act .................................................................................. 17 New York City Collective Bargaining Law .....................................................passim viii Statutes Page 22 NYCRR 25.29 ..................................................................................................... 32 CPLR § 7803(3) ....................................................................................................... 15 NY City Charter § 1171 ............................................................................................. 3 1 QUESTION PRESENTED Whether the New York City Board of Collective Bargaining rationally interpreted and applied Section 12-306(c)(4) of the New York City Collective Bargaining Law, which requires a public employer to furnish a requesting labor organization with “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,” by holding that the statutory obligation encompasses data requests made in the context of disciplinary grievances, just as it does non-disciplinary grievances? The First Department correctly answered “yes.” PRELIMINARY STATEMENT Appellees New York State Nurses Association and Karen Ballard as [former] President of New York State Nurses Association (collectively “NYSNA” or the “Union”) submit this brief in opposition to the appeal of City of New York, Human Resources Association (“HRA”) and James Hanley as [former] Commissioner of the New York Mayor’s Office of Labor Relations (collectively, the “City”) in which the City challenges the First Judicial Department’s rejection of the Article 78 petition the City filed to annul a final agency determination of the Appellee New York City Board of Collective Bargaining (the “BCB” or the “Board”), NYSNA, 4 O.C.B.2d 20 (BCB 2011) (the “Board Decision”). In the BCB determination challenged by the City, the Board found that the City violated the New York City Collective Bargaining Law (“NYCCBL”) 2 and committed an improper practice by refusing to furnish NYSNA with requested information relevant to and necessary for administering two potential grievances challenging employee discipline. As the First Judicial Department correctly held, the Board Decision is consistent with the statute, judicial authority and a long line of Board cases holding that the NYCCBL requires public employers to furnish, upon request, existing relevant data that is necessary to administer a collective bargaining agreement, including to process non-disciplinary grievances. The Board Decision also reflects a rational and reasoned judgment that furthers the underlying policy of encouraging the speedy resolution of disputes. A union that receives requested information soon after a potential grievance arises (i.e., after disciplinary charges issue) can decide whether to settle or forego a grievance without the need for arbitration. The City’s suggested alternative—making the union wait until arbitration before receiving any information—would force the union to take all cases to arbitration, thereby overburdening the system. As the agency charged with administering the NYCCBL, the Board’s exercise of judgment in determining that the City committed an improper practice by its refusal to furnish the requested information was and is entitled to substantial deference. 3 This Court should therefore affirm the First Department’s decision. STATEMENT OF THE CASE I. BACKGROUND TO THE DISPUTE A. The Parties NYSNA is a certified public employee organization that represents, for the purposes of collective bargaining, a bargaining unit of approximately 8,100 registered nurses (“RNs”) employed by the City of New York and the New York City Health and Hospitals Corporation (“HHC”). Record (“R.”) 46, 709-11. Of the 8,100 bargaining unit RNs, only 29 work for HRA, and approximately 100 work at other Mayoral agencies. See R. 392, 710. The vast majority (approximately 8,000) are employed by HHC, which is a public benefit corporation that operates several acute care facilities in New York City, and is not a party to this litigation. R. 710. The Board of Collective Bargaining is a seven-member tripartite body empowered to interpret and administer the New York City Collective Bargaining Law, including to determine whether a party committed an improper practice.1 The BCB has two City members appointed by the Mayor, two Labor members 1 NY City Charter § 1171; NY City Admin. Code, Title 12, chap. 3 § 12-309(a)(1)(4). 4 appointed by the Municipal Labor Committee, and three Impartial members elected by the unanimous vote of the City and Labor members.2 The Office of Labor Relations is a part of the office of the Mayor of the City of New York. It represents the Mayor in labor relations between the City and unions that represent City employees. R. 391. HRA is a Mayoral agency of the City of New York which provides, among other things, temporary assistance to individuals and families with economic needs. R. 391. B. The CBA and the Contractual Grievance Process NYSNA, the City and HHC are parties to a single collective bargaining agreement (“CBA”) which governs the terms and conditions of employment for the RNs employed by HRA, HHC and all other Mayoral agencies. R. 46, 49-96, 711. Article VI of the CBA sets out a grievance process as a means of resolving certain disputes. R. 60-65. In Article VI, Section 1.D., the CBA defines “grievances” to include disputes over “wrongful disciplinary action.” R. 61. Under Article VI, Section 8 of the CBA, an employee served with written disciplinary charges is entitled to a Step I conference with a designee of the employing agency’s head where the employee may be represented by NYSNA. 2 Matter of Judith A. Levitt v. Bd. of Collective Bargaining, 79 N.Y.2d 120, 127-28 (1992). 5 R. 63. If the decision of this agency representative is unsatisfactory, the grievance may advance to Step II for an additional conference with the employing agency head or his designee. R. 61, 63. If the Step II decision is unsatisfactory, the grievance may be appealed to Step III, where it is heard by the Commissioner of Labor Relations or his designee. R. 61.3 If there is an unsatisfactory determination at Step III, Article VI, Section 2 provides NYSNA the exclusive right to demand arbitration. R. 61-62. As a prerequisite to arbitration, the affected employee is required to waive her statutory rights to a disciplinary hearing and potential appeal, which rights are codified at Sections 75 and 76 of the New York State Civil Service Law. R. 62. C. NYSNA Information Requests Related to Employee Discipline To administer the CBA, including with respect to grievances over potentially wrongful disciplinary actions, NYSNA often invokes its statutory right under the NYCCBL to request information from the employing City agency. R. 484-85, 711-14, 717-28. With regard to disciplinary action, NYSNA generally seeks information in order to evaluate and determine whether the action is 3 Although the City contends that “the first three steps are expected to be completed within 55 working days,” Brief of Appellants dated June 10, 2016 (“Br.”) at 8, the CBA contains no deadline by which the Step I conference must occur relative to the service of written charges upon an employee, R. 63 (Section 8). 6 “wrongful” within the meaning of Article VI, Section 1.D of the CBA; to represent an employee effectively and efficiently during investigatory interviews and at the Step I, II and III conferences; and to evaluate whether to exercise its discretion to demand arbitration. R. 485, 712. Receiving such information at the earliest time after a potential grievance arises (i.e., after disciplinary charges issue) facilitates the effective and efficient administration of the grievance process, because it permits NYSNA to evaluate and determine the merits of a potential grievance at the earliest stages of the grievance process, or before a grievance is advanced. R. 484, 711-12. The present dispute marks the first time that a party to the CBA claimed that it had no obligation to furnish NYNSA with any information requested with respect to a disciplinary action. R. 712 (¶ 12), 714-15 (¶¶ 20-21). Prior to HRA’s refusal in the present dispute, both HHC and other Mayoral agencies (specifically, for example, the City Department of Health and Mental Hygiene), had furnished NYSNA information in response to multiple requests regarding disciplinary grievances, and never questioned their statutory obligation to do so. R. 712-14, 717-28. 7 II. The Underlying Disciplinary Actions, Document Requests and Board Decision, and the Lower Court Proceedings A. The Haile and Anderson Document Requests In October 2009, two HRA employees in the NYSNA bargaining unit, Andrea Andersen and Akima Haile, received disciplinary charges from HRA. R. 46, 97-118. HRA charged each with alleged misconduct, including falsification of time records. R. 97-118. Pursuant to the CBA, a Step I conference regarding each employee was held on December 14, 2009. R. 46, 125, 129.4 In advance of and in preparation for the Step I conferences, NYSNA requested certain documents and information relevant to each disciplinary action. R. 119-22, 483. By separate letters to HRA dated December 4, 2009, NYSNA requested, among other things: (1) copies of relevant HRA policies; (2) HRA time entry printouts and swipe documentation for Andersen and Haile; (3) relevant patient records; and (4) witness statements. R. 119-22. NYSNA also requested a statement from HRA detailing how Andersen and Haile violated the HRA Code of Conduct, as well as the production of certain witnesses for questioning. R. 119-22, 483. With respect to each employee, NYSNA requested this information to: (1) determine whether a grievance for wrongful disciplinary action was 4 The conference on December 14, 2009 was 50 days after the service of written charges on or about October 26, 2009, R. 46 (¶ 4). 8 warranted; (2) represent Andersen and Haile in grievance proceedings effectively; and (3) police HRA’s compliance with applicable CBA provisions. R. 484 (¶ 22). NYSNA reiterated its requests by letters dated December 15, 2009. R. 123-24, 484 (¶ 16). HRA refused to supply NYSNA with any of the information requested and the Step I conferences proceeded as scheduled. R. 402-04 (¶¶ 44-53). B. NYSNA’s Improper Practice Petition and the Board Decision On February 12, 2010, NYSNA filed a Verified Improper Practice Petition (“IP Petition”) with the New York City Office of Collective Bargaining alleging the Union’s entitlement to the requested information under NYCCBL Section 12-306(c)(4), and that HRA’s refusal violated NYCCBL Sections 12-306(a)(1) and (4). R. 45-130. On April 28, 2011, the Board granted the IP Petition in part. R. 26- 43. The Board held that NYCCBL Section 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” in violation of NYCCBL Sections 12-306(a)(1) and (4). R. 34, 36. As reflected in its decision, the Board examined NYCCBL Section 12-306(c)(4) and its precedents applying it. R. 34-36. BCB recognized its precedents which hold that under Section 12-306(c)(4) the employer is obligated to 9 furnish requested data necessary for contract administration. R. 34. The Board also recognized its prior holdings that since contract administration includes the processing of grievances, the duty under Section 12-306(c)(4) extends to relevant data reasonably necessary to process grievances. R. 35. Finally, BCB recognized its prior holdings that processing a grievance includes the “consideration of a potential grievance,” and that the statutory obligation extends to requested data necessary for that purpose. R. 35. As further reflected in its decision, the Board looked for guidance in the holdings of the New York State Public Employee Relations Board (“PERB”). R. 35-36. PERB is the state agency charged with administration of the Taylor Law, which grants public employees in New York State the right to organize and bargain collectively. See Civil Service Law Art. 14. Though the Taylor Law does not expressly impose upon a public employer an obligation to furnish a labor organization with requested data, the Board observed that PERB, in interpreting and enforcing the Taylor Law’s command that parties bargain in good faith, “has consistently upheld the right of a union to seek information for contract administration in the context of disciplinary grievances” and that such PERB holdings were “soundly and repeatedly endorsed by the courts.” R. 35. Accordingly, based upon the NYCCBL and its own precedents applying it, and drawing upon judicially approved decisions of PERB for further 10 guidance, the Board reasonably concluded that Section 12-306(c)(4) “applies to requests made in the context of disciplinary grievances, and that failure to provide such materials upon request violates §12-306(a)(1) and (4).” R. 36. Recognizing that NYCCBL Section 12-306(c)(4) does not provide an entitlement to “unlimited” information, the Board then examined whether and the extent to which the specific data requested by NYSNA were within the City’s statutory obligation to provide. R. 38-41. The Board found that NYSNA’s requests for agency policies, time records supporting the disciplinary charges, witness statements which are in the City’s possession, and the patient records which were the subject of alleged falsification were within the City’s statutory duty to furnish. R. 39-40. Accordingly, the BCB found that HRA’s refusal to furnish these documents constituted an improper practice under Sections 12-306(a)(1) and (4). R. 41. The Board also found that NYSNA’s requests for an explanation of HRA’s decision to bring disciplinary charges and for the production of witnesses were “beyond the scope of information properly requested under § 12-306(c)(4),” and thus found no violation by HRA’s refusal to provide same. R. 40-41. Upon careful analysis, the Board expressly rejected the City’s argument that the Third Judicial Department decision of Matter of Pfau v. N.Y. Pub. Empl. Relations Bd., 69 A.D.3d 1080 (3d Dep’t 2010), required the Board to 11 exclude from the ambit of NYCCBL Section 12-306(c)(4) information necessary to process a contractual grievance over employee discipline. R. 36-38. In Pfau¸ the public employer was the Unified Court System, and its disciplinary procedures had been created by the Rules of the Chief Judge and supplemented by negotiated procedures.5 PERB had determined to consider the process a “negotiated” one, and the Appellate Division held that the negotiated procedures, as informed by the parties’ practice thereunder, did not provide for “disclosure.”6 The issue for the Board here, however, was whether NYCCBL Section 12-306(c)(4) obligated HRA to furnish NYSNA with the requested data. In this regard, the Board took guidance from Third Department decisions cited approvingly in Pfau, and which confirmed “PERB’s decisions holding that the obligation to provide information can extend to information requested in relation to contractually-defined disciplinary procedures.”7 The Board determined that those underlying cases support its ruling that the NYCCBL does not exclude information 5 R. 36: Pfau, 69 A.D.3d at 1082. 6 R. 36-37; Pfau, 69 A.D.3d at 1083. 7 R. 37-38 and n.5 (citing Matter of Hampton Bays Union Free Sch. Dist. v. N.Y. Pub. Empl. Relations Bd., 62 A.D.3d 1066, 1068-69 (3d Dep’t 2009); Matter of Civil Service Employees Ass’n v. N.Y. Pub. Empl. Relations Bd., 46 A.D.3d. 1037, 1038 (3d Dep’t 2007); Matter of County of Erie v. N.Y. Pub. Empl. Relations Bd., 14 A.D.3d 14, 18-19 (3d Dep’t 2004)). 12 regarding employee discipline from the statutory obligation to furnish requested data. R. 37. The Board’s decision was 4-2. As the First Department observed below, the dissenting members of the BCB failed to address Section 12-306(c)(4), “the key provision on which the Board relied and had broadly interpreted in previous decisions.” R. 789.8 C. The Lower Court Proceedings The City sought to annul the Board’s decision through a petition pursuant to CPLR Article 78, filed in the New York State Supreme Court, New York County. R. 390-417. In its petition, the City conceded that Section 12-306(c)(4) requires it to furnish a union with requested information that is relevant and necessary to contract administration and grievance processing. R. 142-43 (¶¶ 61, 66). The City contended, however, that the statute does not apply when the grievance at issue concerns an allegedly wrongful disciplinary action. R. 142 (¶ 61), 411 (¶ 93). 8 The two dissenters were BCB Members Silverblatt and Zurndorfer. R. 43-44. Although the Board Decision does not include the fact, BCB Members Silverblatt and Zurndorfer are the appointees of the Mayor. See Civil Service Technical Guild, 4 O.C.B.2d 61, at 36 (BCB 2011) (indicating that BCB Members Silverblatt and Zurndorfer are “City Members” appointed by the Mayor). The majority of the Board Decision was comprised of Impartial Members and Union Members appointed by the Municipal Labor Committee. See supra at 3-4. 13 On October 21, 2011, NYSNA and the Board each moved to dismiss the petition. R. 452-53, 493-95. By decision issued on May 3, 2012, the trial court denied the motions to dismiss. R. 18-23. In doing so, the court relied primarily upon the Pfau decision and a factual finding, unsupported by the record, that the parties’ past practice did not include “discovery in employee disciplinary proceeding held pursuant to the CBA.” R. 21. NYSNA and the Board each thereafter answered the Article 78 petition, and NYSNA asserted a counterclaim for enforcement of the Board Decision. R. 587-618, 664-687. On February 11, 2013, the trial court granted the City’s petition and annulled the Board Decision, incorporating its May 3, 2012 decision by reference and finding the holding in Pfau to be “controlling.” R. 14- 15. On May 26, 2015, the First Department in an unanimous decision by Justice Acosta reinstated the Board Decision and dismissed the City’s petition.9 In doing so, the First Department stressed that the CBA “[n]otably” and “[c]ritically” defined a “grievance” to include challenges to discipline, R. 780, 788, and that “[s]ignificantly the City and HRA do not dispute” that Section 12-306(c)(4) requires the production of information for contract administration and grievances. 9 Justices Andrias, Saxe and Richter all concurred in Justice Acosta’s Decision. R. 776. (The fifth Justice on the panel, Justice DeGrasse, recused himself). 14 R. 788. The First Department explained that it was “guided by the fact” that the CBA defined “grievances” to include challenges to discipline, and it took “no position” on the rationality of the Board Decision as “applied to municipal contracts that do not define ‘grievance’ as including disciplinary actions.” R. 792. On October 25, 2015, the Appellate Division granted the City leave to appeal to this Court. ARGUMENT I. THE BOARD’S DECISION, WHICH IS ENTITLED TO SUBSTANTIAL DEFERENCE FROM THE COURT, REFLECTS A RATIONAL AND REASONABLE INTERPRETATION OF THE NYCCBL A. The Board’s Decision Applying the NYCCBL Is Entitled to Substantial Deference, Particularly As the Board Is the Agency Charged With That Statute’s Implementation To nullify a Board decision pursuant to Article 78, a petitioner must establish that the decision was affected by an error of law, arbitrary and capricious 15 or an abuse of discretion.10 Annulment is inappropriate so long as there is a “rational basis for the exercise of discretion by the administrative agency.”11 The burden to annul a decision of the Board is particularly heavy because the NYCCBL is a “sophisticated labor relations statute, the provisions of which encompass complex and difficult issues of labor law,” and the Board is the 10 CPLR § 7803(3); Uniformed Fire Fighters of Greater New York, Local 94 v. City of New York, 106 A.D.3d 616 (1st Dep’t 2013); Matter of City of New York v. Plumbers Local Union No. 1 of Brooklyn & Queens, 204 A.D.2d 183 (1st Dep’t 1994) (giving “broad deference” to BCB determination); see Matter of Incorporated Vil. of Lynbrook v. N.Y. Pub. Empl. Relations Bd., 48 N.Y.2d 398 (1979) (PERB interpretation of Civil Service Law that is “legally permissible” must be upheld); Matter of Pell v. Bd. of Educ. of Union Free Sch., 34 N.Y.2d 222, 231 (1974); see also Matter of Arrocha v. Bd. of Educ. of City of N.Y., 93 N.Y.2d 361, 363 (1999) (dismissing Article 78 petition); Matter of Howard v. Wyman, 28 N.Y.2d 434, 438 (1971) (“It is well settled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld”). 11 Arrocha, 93 N.Y.2d at 363; Matter of New York City Dep’t of Sanitation v. MacDonald, 87 N.Y.2d 650, 656 (1996) (affirming lower courts and upholding BCB’s decision, Court holds that a BCB determination “may not be upset unless it is arbitrary and capricious or an abuse of discretion, as the Board is the neutral adjudicative agency statutorily authorized to make specified determinations” (citations omitted)); Matter of Judith A. Levitt v. Bd. of Collective Bargaining, 79 N.Y.2d 120, 129-30 (1992) (“‘[s]o long as [the Board]’s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation’” (citation omitted)); Plumbers Local Union No. 1, 204 A.D.2d at 184-85; Matter of Caruso v. Anderson, 138 Misc.2d 719, 720-21 (Sup. Ct., N.Y. Cty. 1987) (dismissing Article 78 petition because BCB “reasonably construed” NYCCBL), aff’d, 145 A.D.2d 1004 (1st Dep’t 1988). 16 agency “charged with enforcing and implementing” the statute.12 The Board’s special expertise in applying the NYCCBL must be honored “absent clear error.”13 B. This Court Has Not, As Argued By the City, Adopted a Rule that Labor Statutes Must Be Narrowly Interpreted In an attempt to avoid the deference the Board is owed, the City contends that the Board Decision runs afoul of this Court’s rule against “the expansion of statutory collective bargaining rights by implication.” Brief for Appellants dated June 10, 2016 (“Br.”) at 18.14 In support of this argument, the City relies exclusively on Matter of New York City Transit Authority v. New York State Public Employment Relations Board, (“NYCTA”).15 NYCTA, however, articulated no such rule requiring collective bargaining rights to be expressly stated. There, PERB had held that Civil Service 12 Caruso, 138 Misc.2d at 720. 13 Roberts v. N.Y. City Office of Collective Bargaining, 33 Misc.3d 1224(A), *4 (Sup. Ct., N.Y. Cty. 2011) (dismissing Article 78 petition challenging BCB decision); Uniformed Fire Fighters, 106 A.D.3d 616; Dist. Council 37 v. City of New York, 22 A.D.3d 279, 283-84 (1st Dep’t 2005) (deferring to BCB’s interpretation of NYCCBL because “[a] court cannot simply substitute its judgment for that of an administrative agency when the agency’s determination is reasonable”); Plumbers Local Union No. 1, 204 A.D.2d 183. 14 The City, elsewhere in its brief, similarly faults the Board for creating a right greater than the “plain language” of the statute. Br. at 16. 15 Matter of New York City Transit Authority v. New York State Public Employment Relations Board, 8 N.Y.3d 226 (2007). 17 Law Section 202—which grants public employees “the right to form, join and participate in … any employee organization of their choosing”—gave a public employee the right to have her union representative accompany her when her employer interviews her and she reasonably fears the interview may result in her discipline. In doing so, PERB found a right under Section 202 similar to the right under the National Labor Relations Act (“NLRA”) that the National Labor Relations Board (“NLRB”) had found, and the United States Supreme Court upheld in NLRB v. J. Weingarten, Inc.16 In rejecting PERB’s interpretation of Section 202, this Court did not annul PERB’s decision because the right to be accompanied on interviews was not explicitly stated in the statute. Rather, this Court merely held that PERB’s inference of such a right was, under the circumstances, unwarranted. Specifically, the Court relied on the fact that Civil Service Law Section 202 does not include the same language relied upon in Weingarten—the right of employees “to engage in … concerted activities for the purpose of … mutual aid or protection.”17 While the right to be accompanied on interviews could be reasonably inferred from the NLRA’s right to engage in concerted activities, the same right could not be 16 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1978). 17 NYCTA, 8 N.Y.3d at 232. 18 inferred from Section 202 which had no such language about the right to engage in concerted activities. This Court further relied on the legislative history of the Civil Service Law. When the statute was amended several years after the Supreme Court decision in Weingarten, the legislative history contained an admission that “New York State public employees do not have the same protection enjoyed by private sector employees during interviews and discussions by the employers.”18 Here, however, the Board was not inferring the right to information for disciplinary cases from language absent from the NYCCBL. The Board relied upon the provision of Section 12-306(c)(4) that expressly obligates the City to furnish requested data that is “necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.” And the City points to no legislative history acknowledging that the NYCCBL includes no right to information in connection with grievances, disciplinary or otherwise. The Board Decision is thus fully consistent with this Court’s recognition that “the obligation to bargain is a strong and sweeping policy of the State,” and thus should not be “lightly overridden.”19 18 Id. at 234. 19 See Matter of Judith A. Levitt v. Bd. of Collective Bargaining, 79 N.Y.2d 120, 129 (1992). 19 C. The Board Decision Is a Reasonable and Rational Application of the NYCCBL The Board Decision reflects a straight-forward application of the NYCCBL that is consistent with that statute’s plain language and long-standing precedents applying it. As such, the Decision is reasonable and the City’s appeal should be denied. The issue before the Board was whether the HRA’s refusal to furnish NYSNA with information that the Union had requested was an improper practice under NYCCBL Sections 12-306(a)(1) and (4). Section 12-306(a)(4) provides that it is an improper practice for the City “to refuse to bargain collectively in good faith on matters within the scope of collective bargaining.” Section 12-306(c)(4) in turn provides that “bargaining collectively in good faith” includes an obligation to furnish certain requested data “necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.” Nothing in these provisions contravenes the Board’s holding that the statutory duty extends to available data necessary for processing a contractual grievance over a disciplinary action. The Board’s holding is no more than the logical application of two sets of uncontroversial principles. Under the first, employee discipline is a subject 20 within the scope of collective bargaining under the NYCCBL.20 Indeed, it is a mandatory subject of bargaining.21 Under the second, the duty stated in Section 12-306(c)(4) extends to contract administration, including the processing of a contractual grievance.22 Moreover, the processing of a grievance includes the union’s evaluation of a potential grievance.23 20 DC 37 v. N.Y. Police Dep’t, 67 O.C.B. 25, at 8 (BCB 2001); see also R. 61, 63. 21 See New York City Transit Authority v. N.Y. Pub. Empl. Relations Bd., 276 A.D.2d 702, 703 (2d Dep’t 2000) (standards that “carried a disciplinary component” are “mandatorily negotiable”). 22 See infra n. 27. 23 See Matter of Hampton Bays Union Free Sch. Dist. v. N.Y. Pub. Empl. Relations Bd., 62 A.D.3d 1066, 1068-69 (3d Dep’t 2009) (enforcing PERB decision requiring employer to provide union with documents sought “to permit [it] to investigate a potential grievance under the collective bargaining agreement”); Correction Officers Benevolent Ass’n, 75 O.C.B. 17, at 4, 8 (BCB 2005) (holding that the failure to supply information “whether for purposes of collective bargaining or contract administration, necessarily constitutes a violation” of §12-306(a)(4), Board requires employer to provide information the Union requests to decide “whether the filing of grievance is warranted”); Correction Officers Benevolent Ass’n, 63 O.C.B. 9, at 14 (BCB 1999) (finding violation of § 12-306(c)(4) where City refused to produce information union sought for contract administration, Board makes no reference to any grievance having been filed). 21 The City did not challenge any of these longstanding principles, either before the Board or before the First Department.24 1. It Is Beyond Dispute that Section 12-306(c)(4) Obligates Employers to Respond to Union Requests For Information in Connection With Contract Administration On appeal, the City criticizes the Board for starting with the “premise” that the statute conferred a “right to information falling under a general rubric of ‘contract administration.’” Br. at 11. The City argues that the obligation to provide information in connection with contract administration “lacks grounding in any statutory text” and is thus a “questionable foundation” upon which to find an obligation to produce information in connection with contract administration regarding disciplinary grievances. Br. at 20. The City’s argument is flawed in three important ways. First, the City has already conceded—in its Article 78 petition, before the First Department, and in other cases—that the obligation to produce 24 R. 142-43 (¶¶ 61, 66); 788. With respect to potential grievances, the City now complains that the Board Decision requires an employer to provide information concerning “grievances that might hypothetically flow from disciplinary proceedings—even before an initial adverse determination has been made against an employee.” Br. at 21. Here, however, HRA had already issued charges against both RNs in October 2009 before the Union requested information in December 2009. R. 135(¶ 23), R. 136 (¶ 26), R. 373. In any event, the case law makes clear that a union is entitled to information regarding potential grievances. See infra at I.C.2. 22 information under Section 12-306(c)(4) “extends to grievances.”25 It is only now, before this Court, that the City belatedly questions whether the requirement to provide information applies to contract administration.26 Second, the City is mistaken to suggest the Board Decision was based merely on a “premise.” The Board Decision was based on BCB case law spanning three decades during which the BCB enforced the obligation to produce information sought for contract administration.27 And the “premise” that public 25 See R. 142-43 (¶¶ 61, 66), 788; District Council 37, 6 O.C.B.2d 2, at 11 (BCB 2013) (observing that the “City acknowledges that the duty to provide information extends to grievances …”). 26 See Martin v. Home Bank, 160 N.Y. 190, 199 (1899) (“It is well settled that this court will not, for the purpose of reversing a judgment, entertain questions not raised or argued at the trial or upon the intermediate appeal”). 27 See Committee of Interns and Residents, 35 O.C.B. 8, at 14 (BCB 1985) (holding that the statutory duty requires the production of information requested that “is relevant to and reasonably necessary for purposes of collective negotiations or contract administration”); Correction Officers Benevolent Ass’n, 63 O.C.B. 9, at 14 (BCB 1999) (finding violation of 12-306(c)(4) where City refused to produce information union sought for contract administration); Correction Officers Benevolent Ass’n, 75 O.C.B. 17, at 4, 8 (BCB 2005) (holding that the failure to supply information “whether for purposes of collective bargaining or contract administration, necessarily constitutes a violation” of §12-306(a)(4), Board requires employer to provide information the Union requests to decide “whether the filing of grievance is warranted”); Patrolmen’s Benevolent Ass’n, 79 O.C.B. 6, at 14 (BCB 2007) (“This duty [to provide information] extends to information relevant to and reasonably necessary for the administration of the parties’ agreements, such as processing grievances”); Social Services Employees Union, Local 371, 1 O.C.B.2d 11, at 2 (BCB 2008) (“This Board finds that the Union is entitled to the salary information requested for the purpose of contract 23 employers must respond to information requests in connection with grievances is one that the courts have adopted in enforcing PERB decisions.28 Third, the City’s argument that an employer’s obligation to produce information is limited to negotiations would defeat the purpose of NYCCBL. The City concedes that “collective bargaining cannot be conducted in the dark. To be productive, negotiations between employers and unions often must be preceded by an exchange of information, so that both sides can formulate and evaluate proposals at the bargaining table.” Br. at 4. The City further admits that Section 12-306(c)(4) was meant to address “informational asymmetry that frequently exists between employers and unions in which “[m]ore often than not,” employers “possess the bulk of information” needed for “informed discussions.” Br. at 5. Nonetheless, the City would have NYSNA and all other unions condemned to this “informational asymmetry,” unable to have “informed discussions” and effectively process grievances as part of contract administration. administration”); DC 37, L. 376, 1 O.C.B.2d 37 (BCB 2008) (explaining that unions are entitled to information for purpose of contract administration). 28 See Matter of Hampton Bays Union Free Sch. Dist. v. N.Y. Pub. Empl. Relations Bd., 62 A.D.3d 1066, 1068-69 (3d Dep’t 2009) (enforcing PERB decision requiring employer to produce information requested by union in connection with grievance); Matter of Civil Service Employees Ass’n v. N.Y. Pub. Empl. Relations Bd., 46 A.D.3d. 1037, 1038 (3d Dep’t 2007) (same); Matter of County of Erie v. N.Y. Pub. Empl. Relations Bd., 14 A.D.3d 14, 18-19 (3d Dep’t 2004) (same). 24 Not surprisingly, for thirty years the Board has rejected such a crabbed reading of NYCCBL. As the Board explained years ago, “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 exists only during a negotiation period.”29 2. The Right to Information For Grievances Includes Information For Potential Grievances Over Discipline Perhaps recognizing that it cannot use this appeal to reverse three decades of adverse case law, the City argues that even if the NYCBBL requires it to provide requested data in connection with contract administration, the City should not be required to do so in disciplinary matters. The City contends there are “key differences” between contractual grievances not involving discipline and those that do. Br. at 22. In the City’s view, non-disciplinary contractual grievances are “likely to present questions” involving interpretations of the collective bargaining agreement that affect a “range of employees with a collective interest” in the agreement, while disciplinary grievances “rarely reach beyond their own facts” and raise no “issues of broader relevance.” Br. at 23. The City also claims that delays in the processing of disciplinary grievances will have “consequences for all parties.” Br. at 30. The City thus accuses the Board of “reading a new right into the statute” by including 29 Local 371, 1 O.C.B.2d 11, at 9 (BCB 2008). 25 disciplinary grievances among the grievances about which the City must respond to union inquiries. Br. at 18. To hammer this point home, the City contends that the First Department’s decision in this case represents “the first judicial ruling in the State to extend the statutory right beyond contractual grievances affecting employees generally to reach disciplinary proceedings affecting one employee personally.” Br. at 12. The City is wrong, both in the distinction it attempts to draw and in its assessment of past judicial rulings. First, the City is mistaken when it pretends that no employee other than the one disciplined has any interest in the resolution of a disciplinary grievance. For instance, when one employee is disciplined for engaging in certain conduct, all employees have an interest in knowing whether under the collective bargaining agreement such conduct gives their employer grounds for discipline. And more broadly, each bargaining unit member has an interest in the enforcement of their collective bargaining agreement. In the labor movement, there is a saying: “An injury to one is an injury to all.” The City is equally wrong to suggest that there are “consequences” only when a disciplinary grievance’s resolution is delayed. All grievances, disciplinary or otherwise, have consequences if their resolution is delayed. The City worries that a delay in resolving a disciplinary grievance will expose it to 26 potentially greater liability in back pay in the event an arbitrator later reverses its termination of an employee. Br. at 30 & n.11. But a non-disciplinary grievance also poses monetary risks. An arbitrator is just as likely to award a financial remedy when the City breaches a contractual obligation, and any delay in the resolution of non-disciplinary grievances would increase the City’s exposure. Given that the collective bargaining agreement between NYSNA and the City expressly provides that “wrongful disciplinary action” is a “‘grievance,” R. 60-61, the Board sensibly saw no reason to draw an artificial distinction among grievances. 30 Second, the City is incorrect in its portrayal of the First Department’s decision below as somehow unique. There are numerous judicial decisions enforcing a union’s right to information in the context of disciplinary proceedings affecting one or two employees personally. 30 The City elevates form over substance when it pretends that NYSNA was not seeking the data for contract administration purposes, but “solely ‘to represent’” the specific members in the disciplinary hearings. Br. at 9. As noted above, the CBA expressly provides that “wrongful disciplinary action” is a “grievance,” and the hearings were disciplinary hearings under the agreement. See supra at Statement of the Case I.B. In addition, the City’s assertion is contradicted by the affidavit of the NYSNA representative who sent the letters in which she explains her reasons included contract administration. R. 484 (¶ 22). 27 For instance, in Matter of Hampton Bays Union Free School District v. N.Y. Pub. Empl. Relations Bd.,31 a school district had recommended the termination of a physical education teacher for allegedly accompanying an underage student to a bar. When the union suggested that the recommendation may have been for discriminatory reasons based on the teacher’s sexual orientation, the union sought documents “to permit [it] to investigate a potential grievance under the collective bargaining agreement,” but the school district refused the request.32 PERB found the refusal to produce the requested documents was an improper practice in violation of the school district’s obligation under Section 209-a(d) of the Taylor Law to “negotiate in good faith with the duly recognized or certified representatives of its public employees.” Deferring to the PERB’s ruling, the Third Department dismissed the school district’s Article 78 petition. Similarly, in Matter of County of Erie v. N.Y. Pub. Empl. Relations Bd.,33 a county fired a police officer for allegedly harassing a co-worker, and in response the union requested certain materials. The Third Department rejected the 31 Matter of Hampton Bays Union Free School District v. N.Y. Pub. Empl. Relations Bd., 62 A.D.3d 1066 (3d Dep’t 2009). 32 Id. at 1067. 33 Matter of County of Erie v. N.Y. Pub. Empl. Relations Bd., 14 A.D.3d 14 (3d Dep’t 2004). 28 county’s Article 78 petition and concurred with PERB’s ruling that the county had to produce the materials pursuant to its statutory obligation to bargain in good faith.34 Hampton Bays and County of Erie thus demonstrate that the First Department’s decision here was not unique.35 County of Erie also dispels another of the City’s mistaken contentions—that because the CBA does not explicitly refer to discovery for grievances, HRA had no duty to provide the information sought by NYSNA. In Erie County, the Third Department rejected precisely the same argument by the county. The Appellate Division explained that the union had an independent, statutory right to receive documents and the collective bargaining agreement could defeat that right only if the union had clearly and unmistakably agreed in the 34 See also Matter of Civil Service Employees Ass’n v. N.Y. Pub. Empl. Relations Bd., 46 A.D.3d 1037, 1038 (3d Dep’t 2007) (enforcing a PERB decision that required an agency to provide documents requested by the union in connection with a grievance challenging the agency’s termination of two employees). 35 The City is similarly mistaken when it argues that “none” of the cases cited by the Board “concerned an individual disciplinary matter.” Compare Br. at 22, n.9 with R. 382-83 & n.5 (citing Hampton Bays, Civil Service Employees Ass’n and County of Erie). 29 agreement to waive the union’s statutory right to the information, which the union had not done.36 In sum, the Board Decision is not arbitrary, capricious or affected by error of law. Rather, it is consistent with the statute that the Board is charged with enforcing and implementing, and does not deviate from Board precedent. This Court should therefore defer to the Board and affirm the First Department’s decision to reinstate the Board Decision and dismiss the City’s Article 78 petition. II. THE THIRD DEPARMENT DECISION IN PFAU DOES NOT PROVIDE A RATIONALE FOR REVERSING THE BOARD In the City’s view, the Third Judicial Department decision in Matter of Pfau v. N.Y. Pub. Empl. Relations Bd.37 “correctly analyze[d] the important policy issues at stake” when it held that “there is no right to disclosure in disciplinary proceedings.”38 After careful analysis, however, the First Department and the Board expressly rejected the City’s argument that Pfau required the Board to exclude 36 County of Erie., 14 A.D.3d at 17; see also Matter of Chenango Forks Cent. Sch. Dist. v. N.Y. Pub. Empl. Relations Bd., 21 N.Y.3d 255, 261 n.2 (2013) (contractual right established by collective bargaining agreement does not extinguish statutory right). 37 Matter of Pfau v. N.Y. Pub. Empl. Relations Bd., 69 A.D.3d 1080 (App. Div. 3d Dep’t 2010). The Pfau decision appears in the Record at R. 200-203. 38 Br. at 25, 27. 30 from the ambit of NYCCBL Section 12-306(c)(4) information necessary to process a contractual grievance over employee discipline.39 A. The Present Dispute Concerns the NYCCBL, Which Expressly Provides a Duty to Furnish Information In Pfau¸ the public employer was the Unified Court System subject to the Taylor Law, specifically Civil Service Law Section 209-a(1)(d). The Third Department held that the employer did not violate Civil Service Law by refusing to provide a union with discovery concerning a disciplinary action. The issue for the Board here, in contrast, was whether NYCCBL Section 12-306(c)(4) obligated HRA to furnish NYSNA with the requested data. In this regard, the Board took guidance from Third Department decisions cited approvingly in Pfau, and which confirmed “PERB’s decisions holding that the obligation to provide information can extend to information requested in relation to contractually-defined disciplinary procedures.”40 The Board correctly determined that those underlying cases support its ruling that the NYCCBL does not exclude 39 R. 381-83, 791. 40 R. 382-83 & n.5 (citing Matter of Hampton Bays Union Free Sch. Dist. v. N.Y. Pub. Empl. Relations Bd., 62 A.D.3d 1066, 1068-69 (App. Div. 3d Dep’t 2009); Matter of CSEA v. N.Y. Pub. Empl. Relations Bd., 46 A.D.3d. 1037, 1038 (App. Div. 3d Dep’t 2007); Matter of County of Erie v. N.Y. Pub. Empl. Relations Bd., 14 A.D.3d 14, 18-19 (App. Div. 3d Dep’t 2004)). 31 information regarding employee discipline from the statutory obligation to furnish requested data.41 As the First Department explained below, the Pfau court’s determination that “there is no general right to disclosure in a disciplinary proceeding does not preclude the Board’s finding that a limited right to certain information arises from the agreement and a related statute.”42 The City’s reliance on Pfau ignores the significant difference between the statutes. The NYCCBL expressly establishes a union’s right to requested information that is relevant and reasonably necessary to administer a contract.43 The Taylor Law does not expressly impose an obligation to furnish any information in any context. Rather, the Taylor Law obligation to furnish information rests upon administrative and judicial interpretations of Civil Service Law Section 209-a(1)(d), which imposes upon the public employer the duty “to negotiate in good faith.”44 41 R. 382. 42 R. 791 (emphasis in the original) (citation omitted). 43 See supra at n. 23, 27. 44 See County of Erie, 14 A.D.3d 14 (citing PERB decisions). 32 B. Pfau Turned Upon Contractual Rights Attendant to an Administrative Process And Not, Like Here, the Public Employer’s Statutory Duty In Pfau, the disciplined employee of the Unified Court System was subject to a “hybrid disciplinary process” promulgated through “Rules of the Chief Judge.”45 That process was “reiterat[ed]” in and supplemented by a collective bargaining agreement that conferred upon the union certain additional rights such as notice of charges and input regarding the panel of presiding hearing officers.46 The court found that PERB erred in holding the Taylor Law to require the requested discovery as part of the parties’ agreement, because the agreement did not provide for discovery either expressly or by the parties’ practice. R. 36-37. Here, in contrast, the parties agreed in the CBA that “wrongful disciplinary action” is a “grievance.” R. 60-61. By that agreement, NYSNA did not waive any statutory right to obtain information.47 The issue here is not whether the CBA requires “discovery,” but whether a City agency is required under the 45 See Pfau, 69 A.D.3d at 1081-1082 (referencing 22 NYCRR 25.29). 46 DC 37, 41 PERB ¶ 3009 (2008) (PERB decision underlying Pfau); see Pfau, 69 A.D.3d at 1082, see also R. 381 (Board Decision discussing Pfau), 784 (First Department’s decision discussing Board Decision’s discussion of Pfau). 47 Chenango Forks Cent. Sch. Dist., 21 N.Y.3d at 261 n.2; County of Erie, 14 A.D.3d at 18. 33 NYCCBL to furnish information regarding a potentially “wrongful disciplinary action” just like it is with respect to any other contractual grievance. III. THE CITY HAS A “PRACTICE” OF PROVIDING UNION DATA REQUESTS MADE IN CONNECTION WITH EMPLOYEE DISCIPLINE The City claims the First Department’s enforcement of the Board Decision “upend[s] a longstanding practice that has governed disciplinary proceedings under nearly all of the City’s collective bargaining agreements for decades.” Br. at 31-32. There are two main problems with this argument. First, the City cites nothing in the record to support its contention that the longstanding practice is that the City “sometimes” “voluntarily provide[s] limited discovery to advance particular disciplinary proceedings, especially when it may facilitate settlement.” Br. at 28.48 There is no record evidence that each time 48 The record does contain the affidavit of Gary Dodson, who states that HRA does not provide an “employee” with “documentary evidence” and “a list of potential witness[es]” during Step I and II conferences regarding discipline unless required by the relevant union contract. R. 150 (¶ 4). Dodson’s conclusory statement, however, is not cited here by the City. In any event, the statement does not establish a consistent practice under the CBA, because HRA is but one agency bound to that agreement. See supra at 3 (explaining that the CBA applies to not just the 29 nurses employed by HRA, but for the approximately 8,100 nurses employed by HHC and other Mayoral agencies). The record does not establish Dodson’s knowledge with respect to whether and how any other agency responds to NYSNA’s requests for information relevant to grievances over employee discipline. Nor does the affidavit establish whether NYSNA had even made such a data request of HRA prior to those at issue here. And Dodson’s affidavit does not 34 the City has responded to discovery requests, it did so “voluntarily,” as opposed to in recognition of its statutory obligations under the NYCCBL given that the CBA expressly provides that “wrongful disciplinary action” is a “grievance.” R. 60- 61.49 Second, the City’s argument is contrary to the record. The undisputed fact is NYSNA has consistently sought and received data regarding discipline from HHC and other agencies bound to the same collective bargaining agreement as HRA. R. 712-14 (¶¶ 12-18). NYSNA representative Leon Bell provided affidavit testimony that “HHC has in general consistently responded to NYSNA’s requests for information made in connection with the discipline or potential discipline of RNs, including by providing information responsive to such requests.” R. 712 (¶ 12).50 He set forth specific examples where HHC and Mayoral agencies other even purport to address the practice “under nearly all of the City’s [other] collective bargaining agreements.” Br. at 31. 49 To the extent that other labor contracts explicitly preclude data requests in the contractual disciplinary process, those contracts would be unaffected by the Board Decision. See County of Erie, 14 A.D.3d at 17 (recognizing that a union could waive its independent, statutory right to receive documents if it had done so clearly and unmistakably in the collective bargaining agreement). Other labor contracts would also be unaffected by the Board Decision if they, unlike here, did not permit grievances over discipline. 50 See Jonas v. Stackler, 95 A.D.3d 1325, 1328 (2d Dep’t 2012) (reversing Supreme Court and affirming underlying administrative determination based in part upon “affidavits submitted in the CPLR article 78 proceeding”). 35 than HRA provided NYSNA with requested data concerning particular employee disciplinary matters. R. 712-14 (¶¶ 13-18). The record also reflects that NYSNA had seldom if ever requested of HRA data concerning an employee disciplinary matter. Bell affirmed that the requests concerning Anderson and Haile, which resulted in this litigation, were the only requests concerning discipline made to HRA reflected in NYSNA’s files. R. 714 (¶ 20). This is not surprising, given that only 29 out of approximately 8,100 bargaining unit nurses are employed at HRA.51 IV. THE BOARD’S DECISION DOES NOT CREATE IMPRACTICAL SITUATIONS AND IS NOT CONTRARY TO PUBLIC POLICY In the City’s opinion, the Board Decision will lead to inevitable delays that frustrate the “prompt resolution” of disciplinary proceedings. Br. at 27. The City speculates that the BCB has given unions a “sweeping discovery right”52 that will embolden the unions “at the earliest stages of the disciplinary process, and at every stage thereafter, to request a staggering amount 51 See supra at 3. 52 Br. at 2. The City repeatedly relies upon hyperbole to misrepresent the Board Decision as if unions now have no restraints. Br. at 1-3 (referring to discovery as “Wide-reaching,” “freestanding,” “sweeping,” “sprawling,” “wide-ranging.”). The City also mistakenly and repeatedly refers to “discovery” as if the Board Decision somehow empowers unions to schedule examinations before trial and issue written interrogatories and requests for admission. The Board Decision does no such thing. 36 of discovery.” These requests will then lead to “discover skirmishes” and a “flood” of “satellite litigation” that the City opines the Board is “ill-equipped” to handle, which will “stop the disciplinary process dead in its tracks until the collateral litigation is concluded,” thereby depriving “disciplinary proceedings of their focus and expediency.” Br. at 2, 15, 28-29. In the City’s view, any discovery regarding disciplinary grievances should instead wait until the dispute rises to the level of arbitration and an arbitrator can decide whether the information sought by the union should be produced. Br. at 9 n.5. Finally, the City argues that the Board has impractically created “asymmetrical tracks” for challenging discipline: one through grievances in which discovery will occur, and one through Civil Service Law Section 75 in which no discovery is permitted. Br. at 30. The City contends this Court should not allow such “disharmony” between NYCCBL and Civil Service Law. Br. at 30. Neither the record evidence in this case nor common sense supports the City’s parade of horribles. A. There Will Be No Inundation of Discovery Demands Leading to a Flood of Satellite Litigation When the inquiry is limited (as it must be) to the record evidence of this case, there is no support for the City’s argument that the Board Decision will 37 lead to a flood of discovery demands that in turn will lead to a spate of satellite litigation before the Board. As set forth above, the 29 RNs at HRA are but a small fraction of the approximately 8,100 RNs who are covered by the CBA between NYSNA, the City, HRA and non-party HHC. The vast majority are employed by HHC. The record shows that NYSNA often invokes its statutory right under the NYCCBL to request information in connection with grievances, even disciplinary grievances, under the CBA from the employing City agency. See supra at 5. Prior to HRA’s refusal in the present dispute, both HHC and other Mayoral agencies party to the CBA had furnished NYSNA information in response to multiple requests regarding disciplinary grievances, and never questioned their statutory obligation to do so. See supra at 7. The City cites no record evidence (because there is none) that NYSNA has overwhelmed the agencies with data demands, let alone frivolous ones. Further, the Board Decision was issued on April 28, 2011. R. 371-89. On September 21, 2012—almost seventeen months later—the City filed its final pleadings in support of its Article 78 petition. R. 729-47 (Verified Reply), 748-71 (Reply Memorandum). The City offered no evidence of any discovery request explosion, by NYSNA or any other union, as a result of the Board Decision. 38 Moreover, the City’s speculation about a flood of satellite litigation ignores that there will be far fewer disputes for the Board to handle if the City produces the data requested, rather than pretend it has no statutorily obligation to do so. Finally, even if there are some instances in which unanswered requests for data lead to the filing of improper practice charges, the resulting litigation will not necessarily stop the disciplinary process “dead in its tracks” as the City claims. Br. at 29. In fact, the record here shows that NYSNA made requests for information regarding Anderson and Haile, HRA denied the requests, and the process continued.53 B. The Board Is Perfectly Capable of Resolving Any Future Improper Practice Charges Concerning an Employer’s Statutory Obligation to Provide Information The City offers no evidence that the Board is incapable of resolving disputes over the data that employers must provide when requested. The case law proves just the opposite, as the Board has repeatedly resolved such disputes, including the one that gave rise to this litigation. See supra at n.27.54 Indeed, 53 See supra at 6; see also Pfau, 69 A.D.3d at 1801 & n.1 (recognizing that the union “eventually proceeded with the disciplinary hearing” even though the “disclosure dispute remain[ed] unresolved”). 54 Contrary to the City’s claim, the Board would not be forced to decide “individual employment disputes.” Br. at 29. The Board would, as it has done successfully for years, apply the statutory obligation to the facts. 39 contrary to the City’s suggestion that the BCB has somehow emboldened unions to “request a staggering amounts of discovery,” the Board Decision does just the opposite. The Board denied portions of NYSNA’s request, thereby discouraging unions from posing overly-broad demands for data. R. 40-41. Not only is the Board perfectly capable of resolving disputes over the data that employers must provide. the case law demonstrates that the BCB can handle these disputes relatively quickly.55 Finally, even if, as the City argues, the Board has elsewhere recognized that improper practice proceedings have “the potential to become ‘extensive and ongoing,’” Br. at 28, the mere potential that an improper practice charge may take time is no reason to adopt a blanket ban against all charges based on the City’s refusal to provide information regarding discipline. C. The Production of Information Sooner, Rather Than Later, Will Make the Process More, Not Less Efficient Far from supporting the City’s arguments, the record shows the benefits of the City providing information early. Receiving such information at the 55 See Patrolmen’s Benevolent Ass’n, 79 O.C.B. 6, at 14 (BCB 2007) (issuing decision less than four months after union filed its improper petition); DC 37, L. 376, 1 O.C.B.2d 37 (BCB 2008) (issuing decision four and a half months after union filed its improper petition); Social Services Employees Union, Local 371, 1 O.C.B. 2d 11, at 2 (BCB 2008) (issuing decision just over five months after union filed its improper petition). 40 earliest time after a potential grievance arises (i.e., after disciplinary charges issue) facilitates the effective and efficient administration of the grievance process, because it permits NYSNA to evaluate and determine the merits of a potential grievance at the earliest stages of the grievance process, or before a grievance is advanced. R. 484 (¶ 23), 711-12 (¶ 10). The City’s suggestion that unions must wait until arbitration to request information is itself impractical. As the United States Supreme Court has recognized, “[a]rbitration can function properly only if the grievance procedures leading to it can sift out unmeritorious claims. For if all claims originally initiated as grievances had to be processed through to arbitration, the system would be woefully overburdened.”56 Precluding any discovery regarding discipline until arbitration would improperly “force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim.”57 Indeed, the City admits in its brief that “many disputes [under the CBA] are resolved” prior to arbitration. Br. at 8. Although the City does not attribute a cause for such resolutions, the record strongly suggests one—the City, 56 NLRB v. ACME Industrial Co., 385 U.S. 432, 438 (1967). 57 Id. (enforcing an NLRB decision that required employer’s to respond to union’s information request regarding grievance and to do so prior to arbitration). 41 in particularly, HHC “has in general consistently responded to NYSNA’s requests for information made in connection with the discipline or potential discipline of RNs, including by providing information responsive to such requests.” R. 712 (¶ 12). To the extent the City is truly concerned about the expeditious resolution of disciplinary disputes, the solution is quite simple. When a union asks for information, the City can respond rather than simply issue a blanket and total refusal as it did here. If the City believes the request is overbroad, it can raise the issue with the union in an attempt to narrow the production. Rather than engage in a dialogue with the union, however, the City apparently prefers a different course of action—asking this Court to ignore the Board’s reasonable interpretation of NYCCBL and instead imposing an absolute ban on any requests for information in discipline cases until an arbitrator permits it. That is no real solution at all. D. The Disciplinary Process Under a Collective Bargaining Agreement Need Not Mirror the Process Under Civil Service Law The City also claims that by acknowledging a union’s statutory right to information under NYCCBL the Board has somehow improperly created a disadvantage for employees who elect to have their discipline challenged not through a grievance, but under Civil Service Law Section 75 where there is no right to discovery. Br. at 30. 42 There is no requirement, however (and the City cites no authority for one), that the disciplinary process under a collective bargaining agreement has to mirror the process under Civil Service Law Section 75. Thus, the fact that there may be no right to discovery under Civil Service Law Section 75 does not compel the denial of a right to receive information for disciplinary grievances. If, as the City contends, employees will suffer a “disadvantage” if they elect to challenge their discipline under Civil Service Law, rather than through the grievance process, that is a factor for the employees to consider when choosing which avenue they wish to pursue. It does not provide a basis for preventing unions from asking for information when the employees elect to have their discipline heard through the grievance process. Indeed, elsewhere in its brief, the City implicitly concedes that asymmetry with Civil Service Law is legally permissible and thus not grounds for invalidating the Board Decision. The City argues that “if a union desires greater rights to informational exchange, it is free to negotiate for them in the collective bargaining process.” Br. at 20. The City also cites Antinore v. State of New York,58 which explicitly recognized that the Civil Service Law was amended in 1972 to permit Section 75 to be “supplemented, modified or replaced by 58 Antinore v. State of New York, 49 A.D. 2d 6 (4th Dep’t 1975), aff’d, 40 N.Y.2d 921 (1976) (cited at Br. 27). 43 agreements negotiated between the state and an employee organization.”59 Regardless of whether the City is willing to admit it, it is legally permissible for a union to request and receive information for disciplinary grievances, despite the absence of discovery in Civil Service Law proceedings. At bottom, there are many advantages to an employee if he or she is represented in collective bargaining. There is nothing wrong with a represented employee enjoying an advantage over unrepresented employees when facing discipline, any more than it would be improper for represented employees to enjoy better wages or vacation leave. CONCLUSION The Board Decision reflects a straight-forward and rational application of the NYCCBL that is consistent with that statute’s plain language and longstanding precedents requiring an employer to provide information relevant to grievances. The Board merely held that the obligation included grievances regarding discipline if the parties had agreed in their collective bargaining agreement that grievances would include disputes regarding discipline. 59 The amendment was codified as Section 76(4) of the Civil Service Law. This Court should therefore affirm the First Department's decision. Dated: New York, New York August 9, 2016 44 COHEN, WEISS AND SIMON LLP est 42nd Street New York, New York 10036-6979 (212) 563-4100 Attorneys for Respondents- Respondents, New York State Nurses Association and Karen A. Ballard, as [former} President of New York State Nurses Association