Implications of the First Department's Decision on Rescission of Release Time Certificates.

Introduction

The constant struggle for balance between management's authority to act unilaterally, and a union's ability to resist such action, permeates labor relations. This is particularly true in the public sector, where achieving stability involves weighing issues of workers' rights and the public interest. Although the question of whether an employer has the discretion or authority to take certain actions necessarily informs how both management and unions approach a particular situation, it is worth remembering that the question of bare authority is not, and should not, always be the end of the analysis. Even when an employer may, under certain circumstances, have the authority to take a particular action, the same action may be improper when taken for improper reasons such as retaliation, anti-union animus or bad faith.

This principle is critical to placing the decision in Patrolmen's Benevolent Assoc. of City of New York v. City of New York (which addresses the issue of release time authorization) in its proper context. There, based upon the indictment of the officers involved, the City rescinded the release time certificates for the union's chosen representatives.1 Ignoring arguments that such discretion raised the issue of so-called "company unions" in the public sector, the Appellate Division, First Department held that the City's Office of Labor Relations ("OLR") could unilaterally rescind the release time certificates of union representatives who had been indicted in a criminal scheme and direct the Patrolmen's Benevolent Association to select three different representatives to replace them, which some have contended permits the City broad power to interfere with the internal operations of a union. In reaching its conclusion, the First Department also made facially broad declarations as to the City's authority over release time. Yet, despite that broad language, OLR's authority here is not boundless but, as discussed below, continues to be limited by the mandates of the Taylor Law and the New York State Labor Law.

This article (i) discusses the enactment of Executive Order 75, which provides for release time certificates; (ii) reviews the Court's ruling in Patrolmen's Benevolent Association v. City of New York; and (iii) discusses the ways in which the decision's impact may be tempered.

Background

In 1973, New York City Mayor John Lindsay signed Executive Order 75 ("EO 75"), establishing the practice of "time released" union employees – employees who facilitate the proper operation of public sector labor relations by representing their union and interacting with management by, among other tasks, investigating grievances, participating in labor/management committee meetings, serving as members of the Municipal Labor Committee, and participating in fact-finding or other collective bargaining proceedings, without loss of their job, pay or other employee benefits. Although EO 75 has been criticized by some for allowing City employees to conduct union business while being paid by the City, one of the principal – and important – reasons for its enactment was the recognition by Mayor Lindsay that "time spent on union activities is time devoted to the public interest [as much as] time spent in the performance of regularly assigned duties." (EO 75, Whereas clause).

Although EO 75 granted union representatives certain accommodations, it also imposed certain requirements on "time released" union employees, including a prohibition on organizing, directing or participating in strikes or job actions of any kind while on release time, the advance approval for time spent on permissible activities and, most pertinent here, the requirement that "employees assigned on a full-time or part-time basis granted leave without pay pursuant to this Order shall at all times conduct themselves in a responsible manner" (EO 75, §4(10)). Although the requirement that union representatives act in a responsible manner may seem innocuous on its face, experienced union and management representatives know that agreement between labor and management sometimes comes after contentious and heated negotiation. Thus, what is "responsible" for a zealous union representative – whose job it is sometimes to press issues that may be upsetting to management – may not always align with management's view of whether the conduct is responsible. That said, the near absence of any litigation regarding the revocation of release time suggests that union representatives generally behave appropriately and both labor and management typically work through the rougher patches in their relationship.2

Patrolmen's Benevolent Assoc. of City of New York v. City of New York

Although the First Department decision in PBA expressed a broad view of the City's authority under EO 75, the genesis of the case was specific and external to labor-management relations. In PBA, the First Department was faced with determining the boundaries of the City's leeway in intervening in union independence in a case in which three PBA delegates were among 16 police officers implicated in a ticket-fixing investigation. The three delegates, among others, were indicted by a grand jury on charges of official misconduct, grand larceny, and tampering with public records and, pursuant to Civil Service Law §75(3-a), were suspended without pay for 30 days and then placed on modified duty pending resolution of the charges.3 The City, however, went a step beyond any statutory mandates by revoking the EO 75-granted release time certificates of the three union delegates, on the unilaterally-determined grounds that they had violated §4(10) of EO 75 and had not acted "in a responsible manner at all times."4

Without either providing a hearing for the union delegates or consulting with the PBA, the City proposed a remedy of issuing three new release time certificates – for three representatives of the union's choice to replace the elected representatives.5 The union declined, instead filing a contract grievance with OLR asserting that the original three delegates were denied a hearing prior to the revocation of their release time certificates and that the City and OLR engaged in conduct that "dominated" or "interfered" with the right of the union to represent itself.6 After OLR denied the grievance, the PBA filed a demand for arbitration with the New York City Office of Collective Bargaining, seeking to have the release time certificates reinstated on the ground that the rescission violated both the parties' collective bargaining agreement and EO 75.7 Simultaneously, the PBA sought a preliminary injunction in aid of arbitration to enjoin OLR from denying or revoking the release time certificates. The Supreme Court (New York Cty., Joan B. Lobis, J.) granted the injunction and OLR appealed to the First Department.8

The First Department determined that "the indictments of the individual petitioners on charges related to a ticket-fixing scheme that include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation constitute a sufficient basis for the City to determine that the individual petitioners did not 'at all times conduct themselves in a responsible manner.'"9 Although the direct issue of OLR's authority was not before the Court in reviewing the grant of the injunction, the First Department did not limit its holding to whether criminal indictments were sufficient, absent convictions or pleas, to invoke §4(10) of EO 75. The Court went beyond the facts and held that EO 75 "generally vests the City with broad oversight of employee representatives" and that because enforcement is committed to the Commissioner, who may issue implementing rules and regulations, OLR has broad authority to determine what constitutes conduct in a "responsible manner" and to unilaterally rescind release time certificates it has granted.10

Implications

At first blush, the broad language utilized in the First Department's decision appears to authorize significant employer control over internal union matters (e.g., influencing which union members can serve as representatives on release time). Such fears, upon closer examination however, should prove unfounded. Even assuming that the First Department was correct in its approval of the unilateral revocation of the release time certificates on the basis of the indictment alone (a position the PBA understandably contested in the absence of any adjudication of wrong-doing and the continued employment of the officers pending resolution of the charges), government employers remain tempered in the actions they can take. Both the Taylor Law and the New York State Labor Law prohibit interference with union administration as well as discrimination on the basis of anti-union animus or for the purpose of chilling union activity. The representatives chosen by the union members are not fungible and requiring the substitution of different members for these roles begins to infringe upon a basic union right.

Taylor Law Section 209-a.1 prohibits an employer from, among other things, "deliberately ... dominat[ing] or interfer[ing] with the formation or administration of any employee organization for the purpose of depriving them of [their rights of organization and representation]."11 Notably, although the PBA raised issues of domination, the procedural posture of the case sought an injunction in aid of arbitration under the PBA's collective bargaining agreement. There is no indication that the delegates' union activity played a role or that a separate improper practice charge was filed making such claim.

The Taylor Law also prohibits an employer from "discriminat[ing] against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any employee organization."12 Thus, even if OLR may have general authority to revoke a time-release certificate if the union representative is not acting in a "responsible manner," OLR may not use this authority as a pretext for interfering in union administration or discriminating against employees for engaging in protected activities. For example, an employer has the right to transfer employees (in accordance with the provisions of the applicable collective bargaining agreement), but cannot transfer an employee because the employee has engaged in activities protected by the Taylor Law.13 Similarly, New York Labor Law §201-d makes it unlawful for an employer to discriminate against an individual because of that person's "membership in a union or any exercise of rights granted under...[the Taylor Law]."14

In PBA, although the Union had argued that allowing OLR to revoke release time solely based on the indictment had the effect of interfering with the Union's internal operations and independence, there was no argument that the revocation was motivated by the officers' union activity. Accordingly, while the First Department's decision in PBA serves to undermine the breadth of union discretion, its impact on active union representatives and their ability to zealously represent their members is substantially tempered.

Conclusion

Whether correctly determined or not, PBA begins to set forth the parameters of what it means to "at all times conduct oneself in a responsible manner." Public sector unions, however, should find comfort in the fact that the broad wording used by the Court in discussing release time should not translate to OLR being able to operate unchecked, as other protections operate to prevent employers from interfering with or dominating a union.


Co-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in Stroock's Litigation and Government Relations Practice Groups. The Co-Editors wish to thank Beth A. Norton, Special Counsel, and David J. Kahne, Julie L. Goldman, and Samantha M. Rubin, associates, in Stroock's Litigation and Government Relations Practice Groups. We also acknowledge the contributions of Scott A. Budow who was a summer associate in the Stroock program.


Footnotes

1 Patrolmen's Benevolent Assoc. of City of New York v. City of New York, 987 N.Y.S. 2d 308 (1st Dept. May 13, 2014)

2 Both PERB and the courts have engaged in limited review of EO 75 and have not addressed the requirement set forth in EO 75 §4(10) regarding conduct in a "responsible manner." In deciding other issues related to the negotiation of release time, PERB has indicated that it may be appropriate for the City to revoke release time certificates if the employees are not comporting with the requirements set forth in EO 75, but it did not decide that issue.

3 Id., at 310.

4 Id.

5 Id., at 309.

6 Id.

7 Id.

8 Id.

9 Id., at 310.

10 Id.

11 N.Y. Civ. Serv. L. §209-a.1(b).

12 N.Y. Civ. Serv. L. §209-a.1(c).

13 In the Matter of Freeport UFSD, 12 PERB ¶3038 (1979) (holding that where teacher's union activities were known to school principal, who was disturbed by them, subsequent transfer of teacher was discriminatorily motivated in violation of the Taylor Law).

14 N.Y. Labor Law §201-d(2)(d).

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