In the Matter of Patrolmen's Benevolent Association of the City of New York, Inc., et al., Appellants,v.City of New York, et al., Respondents.BriefN.Y.October 27, 2015APL-2014-00205 New York County Clerk’s Index No. 113039/11 Court of Appeals of the State of New York In the Matter of the Application of THE PATROLMEN’S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., on behalf of itself and POLICE OFFICER JOSEPH ANTHONY, POLICE OFFICER BRIAN MCGUCKIN, POLICE OFFICER MICHAEL HERNANDEZ, and all Delegates and Police Officers Assigned to the precincts within the “Bronx Patrol Borough”, Petitioners-Appellants, – against – THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT and RAYMOND W. KELLY, in his official capacity as the Commissioner of THE NEW YORK CITY POLICE DEPARTMENT, Respondents-Respondents. BRIEF FOR AMICUS CURIAE HARRY NESPOLI, AS CHAIR AND ON BEHALF OF THE NEW YORK CITY MUNICIPAL LABOR COMMITTEE, IN SUPPORT OF PETITIONERS-APPELLANTS GREENBERG BURZICHELLI GREENBERG P.C. Attorneys for Amicus Curiae Harry Nespoli, as Chair and on behalf of the New York City Municipal Labor Committee 3000 Marcus Avenue, Suite 1W7 Lake Success, New York 11042 Tel.: (516) 570-4343 Fax: (516) 570-4348 Date Completed: April 14, 2015 TABLE OF CONTENTS Page PRELIMINARY STATEMENT................................................................. 1 FACTUALBACKGROUND...................................................................... 3 ARGUMENT IT WAS APPROPRIATE TO GRANT A PRELIMINARY INJUNCTION WHERE THE PBA MET ALL APPLICABLE STANDARDS.......................................................................................... 6 A. The PBA Satisfied CPLR § 7502(c), Warranting Injunctive Relief...................................................... 7 B. The Lower Court Aptly Concluded that the PBA Also Satisfied the Three Prongs of CPLR 6301........ .. .. . . . . . .. . . . . . . . . . . . .. .. 11 CONCLUSION............................................................................................ 14 i TABLE OF AUTHORITIES Page(s) Cases: Lentine v Fundaro, 29 N.Y.2d 382 (1972) .................................................. 11 Longo v. Dolce, 192 A.D.2d 157 (2d Dept. 1993) ...................................... 4 McLaughlin, Piven, Vogel v. Nolan & Co., 114 A.D.2d 165 (2d Dept 1986).......................................................................................... 12 Statutes: CPLR § 6301 .............................................................................................. 11, 12, 13 CPLR § 7502(c) ........................................................................................... 6, 7, 11 NYCCBL § 12-306(a)(2) ............................................................................. 5, 8, 9 Other Authority: Mayoral Executive Order 75 ....................................................... 3, 4, 5, 9, 10, 12, 13 11 PRELIMINARY STATEMENT The Municipal Labor Committee ("MLC") submits the following as its Amicus Curiae brief in support of Petitioners-Appellants, the Patrolmen's Benevolent Association of the City of New York, Inc., on behalf of itself and Police Officer Joseph Anthony, Police Officer Brian McGuckin, Police Officer Michael Hernandez, and all Delegates and Police Officers assigned to precincts within the "Bronx Patrol Borough" (hereinafter referred to as "Petitioners," "PBA," or the "Union"). Appellants challenge Respondents-Respondents', the City of New York, the New York City Police Department, and Raymond W. Kelly in his official capacity as the Commissioner of the New York City Police Department1 ("Appellants" or "the City"), unilateral revocation of three Union Representatives' excusal to perform labor management activities. This revocation violated the parties' collective bargaining agreement and Mayoral Executive Order 75 ("E075"), neither of which permit such unilateral revocation. The City's actions impermissibly interfere and undermine the union membership's right to choose representation in a manner that threatens the fabric of employee organizations. The MLC submits this Amicus Curiae brief in its capacity as an unincorporated association of city employee organizations. The MLC is composed 1 William Bratton was appointed as the 42nd police commissioner of the City of New York by Mayor Bill de Blasio in 2014 replacing Commissioner Kelly. 1 of public sector employee organizations and is codified by the New York City Collective Bargaining Law ("NYCCBL"). Membership is issued to any public or municipal employee organization whose primary purpose is to represent such employees concerning wages, hours, and working conditions. The MLC represents over 300,000 individuals employed by the City of New York or its covered agencies. Currently, more than 100 unions comprise the MLC, including the Patrolmen's Benevolent Association of the City of New York, Inc. The MLC urges this Court to reject the First Department's 3-2 decision and instead reinstate the trial court's analysis and decision wherein it afforded the PBA an injunction in aid of arbitration pending the outcome of the parties' arbitration proceeding. The Supreme Court's provisional relief was appropriate where an arbitration award may otherwise be rendered ineffectual, and further where the trial court found that Petitioners had also established the traditional grounds set forth in Article 63 of the CPLR for granting an injunction. The MLC is acutely interested in the outcome of this proceeding because its member unions regularly pursue matters at arbitration and in some instances seek injunctions in aid of arbitration. Furthermore, the underlying dispute concerns a matter of the greatest importance to the MLC: representation by chosen union delegates, a critical aspect of effective labor relations. The decision in this matter and in the ultimate arbitration of this case will be instructive to the MLC's municipal unions and the City and will 2 provide information as to how and under what circumstances the City may revoke union representatives' release time. FACTUAL BACKGROUND The PBA initially brought this proceeding when it learned that the City had rescinded the release time certificates for Police Officers Joseph Anthony, Michael Hernandez, and Brian McGuckin. The PBA sought a Temporary Restraining Order ("TRO") to prevent Appellants from dominating and interfering in the Union's administration. The trial court granted the PBA's TRO, but in a 3-2 decision the First Department reversed. We appear as amicus in support of the PBA and its appeal of the First Department's decision. Release time is afforded to permit unions like the PBA and the MLC's member unions to carry out essential duties and responsibilities. Police Officers Anthony, Hernandez, and McGuckin were elected by the PBA membership to perform the functions of trustees and financial secretary. Pursuant to Mayoral Executive Order 75 ("E075"), an administrative order in existence since at least 1973, Anthony, Hernandez, and McGuckin received full pay and benefits from the City of New York to perform labor relations functions on behalf of their Union and its members. Upon information and belief, the City revoked the officers' release time because of their purported involvement in alleged ticket fixing and associated criminal charges. The above-referenced police officers have not been found guilty 3 of any wrongdoing, whether criminal or administrative, by any court or tribunal, but their full-time release status was nevertheless pulled by the City. While the MLC takes no position with respect to the criminal allegations, it opposes the City's actions which flagrantly violate E075, the New York City Collective Bargaining Law ("NYCCBL"), and past practice. The City's decision to remove the release status of these police officers was improper and does not fall within any of the stated justifications found in E075 for removal of a union member's release status. Executive Order 75 provides that the City's Commissioner of Labor Relations may suspend or terminate leave time for employees who organize, plan, direct, or participate in any way in strikes, work stoppages, or job actions of any kind. Executive Order 75 does not permit the Commissioner of Labor Relations, or any other official, to suspend or terminate an employee's leave time when he is charged with a crime. There can be no dispute that the City took the action it did based solely on the allegations in an indictment rather than a finding or determination of any kind. This fact establishes that the City's acts undercut the presumption of innocence and rights to due process that all citizens and public employees enjoy and that are central to what police officers do. Indeed, the indictment proves nothing. See Longo v. Dolce, 192 A.D.2d 157, 162 (2d Dept. 1993) (Even a "plea of nolo 4 contrende in a criminal proceeding cannot be relied upon in a subsequent civil or administrative action as proof of the facts alleged in the indictment"). Further, based upon the NYCCBL and the well-established past practice in place, the City cannot effectively dominate or interfere with the formation and administration of the PBA by revoking employees' leave time (NYCCBL § 12- 306(a)(2)). The above named officers are elected representatives chosen by the PBA membership. The City's revocation contravenes E075, the NYCCBL, and the past practice in that it allows the City, and not the union membership, to determine who shall represent the membership in union affairs. The MLC' s member unions similarly have release time in accordance with E075. As such, the MLC appears in this action as amicus curiae to protect the integrity of E075 and to ensure that release time is only revoked as provided for in E075. The City's unilateral decision to revoke the aforementioned police officers' release time threatens the release time of other MLC member unions. Further, the MLC supports the lower court's decision to grant injunctive relief. For all of the foregoing reasons the MLC submits this brief in support of the PBA's appeal of the First Department's decision. 5 ARGUMENT IT WAS APPROPRIATE TO GRANT A PRELIMINARY INJUNCTION WHERE THE PBA MET ALL APPLICABLE STANDARDS The PBA sought a very limited remedy before the trial court which did not require a ruling on the ultimate merits of the underlying grievance arbitration. Rather, the lower court simply determined an eventual arbitration award may be rendered ineffectual absent injunctive relief. The City has disputed the standard employed by the court in granting the injunction in aid of arbitration. The PBA cites case law which supports a less onerous standard, considering simply, as the plain meaning of the statute expresses, whether the eventual award may be rendered ineffectual without provisional relief. The PBA's argument is supported by the plain language of the statute and several cases wherein the courts only considered this prong to determine whether relief under CPLR § 7502(c) was warranted. The MLC urges this Court to reject the First Department's three Justice majority wherein it found that the PBA failed to demonstrate a likelihood of success on the merits. The plain language of CPLR § 7502(c) does not require a showing of compliance with CPLR Article 63 standards, thus it was improper for the First Department to hold that the PBA failed to meet the likelihood of success standard. 6 A. The PBA Satisfied CPLR § 7502(c), Warranting Injunctive Relief Even if an Arbitrator decides in favor of Petitioners awarding them the relief they seek, such relief will necessarily be ineffectual if provisional relief does not remain intact pending the arbitration. The City's very removal of selected representatives is damaging to the PBA. There is no way to measure or quantify the harm which the PBA will endure if the City is permitted to remove Anthony, McGuckin, and Hernandez pending the outcome of the arbitration proceeding. The harm which the PBA would suffer if the stay was lifted and if a preliminary injunction in aid of arbitration was not granted is intangible and cannot be remedied with simple money damages. Any arbitration award rendered by an arbitrator will be ineffectual for a variety of reasons. First, no Arbitrator can formulate relief for the City's violation of the clear language present in E075. For decades the City has authorized release time pursuant to E075 granting PBA members paid leave time to perform Union functions. Over the past few decades the PBA, like other City unions, has informed the City of the member it seeks to have on release and the City issues a release certificate in accordance with that request. The City does not have input or discretion to decide which member the PBA selects to have on release. Rather, as is the case with other City unions, it is membership of the PBA who decides which members they want to represent them. It is within the judgment and discretion of 7 the Union to select the members who will represent it for the purposes of the labor- management relationship. Second, if alternatively the City was permitted to select who in the Union would serve on release time the Union would, in effect, be dominated and controlled by management in contravention of NYCCBL § 12-306(a)(2). Section 12-306(a)(2) provides: It shall be an improper practice for public employer or its agents: (2) to dominate or interfere with the formation or administration of any employee organization. By unilaterally removing Police Officers Joseph Anthony, Brian McGuckin, and Michael Hernandez the City has substituted its judgment for that of the Union membership creating its own puppet regime and dominating and interfering with the Union's administration. On a daily basis Union representatives appear on behalf of members at interrogations, before the Civilian Complaint Review Board, at Departmental trials, and in numerous other contexts (R. 1 02). In the judgment of the membership their chosen Union representatives are the individuals best equipped to represent them in these oft adversarial situations. The City, in substituting its judgment for the judgment of the Union, decided that these Officers cannot continue to appear on behalf of the PBA ("management has serious reservations about their ability to among other things, properly investigate grievances, effectively participate in negotiations, etc." (R. 128-29 at 1 8 9)). Such characterization, however, flies in the face of the intent of E075 and the NYCCBL. It is the Union and its membership, and not the City, which should make such determinations. It is the individual Union members, and not the City, who arguably have the most to gain or lose based upon their Union representation. In contrast, the City stands to gain an unfair advantage by displacing chosen Union representatives for others not selected by the membership. To instead permit the City to pass upon who should represent the Union would result in a violation of the NYCCBL § 12-306(a)(2). Here, the City is impeding the operations of the PBA by unilaterally proclaiming that certain duly elected and released Union members cannot represent the Union. The City is dominating and interfering with the formation and administration of the PBA and its internal functions. The City has no authority to determine the fitness of PBA representatives to perform their duties and responsibilities. The language in E075 is clear that the only time that the City may suspend or terminate a union member's release status is when the member has participated in activities such as "organizing, planning, directing, or participating in any way in strikes, work stoppages, or job actions" (E075). No where in E075 did the City reserve the ability to revoke release time in the event a union member is indicted. A charge is not a conviction. 9 The City claims that its management rights allow it to unilaterally promulgate new rules to under E075 for the revocation of release time. Executive Order 75 provides only two narrow grounds for the revocation of release time. The City cannot now expand its ability to revoke PBA release. The MLC has a strong interest in protecting the limits of E075 for its member unions. The MLC has a continued interest in ensuring that member unions are represented by those delegates selected by the membership. To ensure effective labor relations this court should affirm the lower court ruling and uphold the plain meaning of E075. In light of all of the foregoing it is clear that any eventual relief the PBA may receive pursuant to an Arbitrator's award cannot remedy the City's domination of the Union. No two Union representatives are the same. They have different styles, skill sets, and backgrounds uniquely qualifying them for the duties and responsibilities they perform. If Police Officers Anthony, McGuckin, and Hernandez are not permitted to continue on full release time the Union will be harmed in a way that cannot be undone. The City's offer to have three different Union representatives replace Police Officers Anthony, McGuckin, and Hernandez (R. 128 at 'I[ 7) cannot save any eventual arbitration award from ineffectually curing the wrong perpetrated by the City. 10 B. The Lower Court Aptly Concluded that the PBA Also Satisfied the Three Prongs of CPLR 6301 The Court of Appeals has not ruled as to whether a showing pursuant to § 6301 of the CPLR is required to obtain an injunction in aid of arbitration pursuant to § 7502(c). However, Petitioners have satisfied even the more rigorous standard for provisional relief pursuant to § 6301. Petitioners demonstrated that they will succeed on the merits, that they will be irreparably harmed absent a preliminary injunction, and that the equities tip in favor of Petitioners. Notably, if this Court adopts the more onerous standard of review, it should liberally construe the likelihood of success on the merits prong. Courts have held that the likelihood of success on the merits prong must be viewed differently in considering whether to grant a preliminary injunction in aid of arbitration pursuant to CPLR § 7502(c). A more loose consideration of the likelihood of success on the merits is warranted because it is difficult to predict how an arbitrator may rule since he has the ability to administer broader justice. Arbitrators generally have broad powers to "do justice" and "are not bound by principles of substantive law or rules of evidence" in the same manner as members of the judiciary. Lentine v Fundaro, 29 N.Y.2d 382, 386 (1972). As such, while the MLC is confident that Petitioners will succeed on the merits of their arbitration, this Court need not consider this prong with the same depth as it would pursuant to§ 6301. 11 Petitioners also satisfy the irreparable harm showing as described more fully m (A) supra. Irreparable harm is that which cannot be repaired, restored, or adequately compensated in money, or where the compensation cannot be safely measured McLaughlin, Piven, Vogel v. Nolan & Co., 114 A.D.2d 165 (2d Dept 1986). No sum of money can remedy the harm which the PBA will be exposed to if the stay is lifted and the injunction is not maintained. The PBA' s chosen representatives possess unique styles, skill sets, and backgrounds which cannot be replaced simply by allowing an alternate to substitute for them on full release. Without a preliminary injunction in aid of arbitration the City will dominate and interfere with the PBA administration in a manner that is incapable of redress. No arbitrator can undo the harm that may befall certain members of the PBA if their chosen representatives are not released in accordance with E075. Finally, Petitioners meet the third prong of the more rigorous CPLR § 6301 test, in that the equities tip in their favor. As discussed in part (A) supra the PBA stands to lose important Union representation if this Court does not reject the First Department's decision. The City, on the other hand, has nothing to lose by allowing Police Officers Anthony, McGuckin, and Hernandez from continuing on full time release pursuant to E075. It is the Union and not the City which has the discretion to decide whether or not particular members are fit to continue in their capacity as union representatives on full time release. Further, it is the Union that 12 will suffer if it later turns out that its Union representatives are inept to perform their functions. Put more simply, it is the Union, and not the City, who bares the risk of continuing these Police Officers on full release. The City's proclamation that "it is impossible for management to work with individuals under such a cloud" (R. 117 at