the taylor law (particularly the triborough amendment provision) expires on july 1st. what should...

STROOCK REPORTS – PUBLIC EMPLOYEE LAW

Co-Edi to r s : A l an M. Kl inger , Co-Manag ing Par tne r , and Dina Kolker , Spec i a l Counse l in S t roock ’ s L i t i ga t ion and Government Re la t ions Prac t i ce Groups . The Co-Edi tor s wi sh to thank Beth A. Nor ton, Ker ry T. Cooperman, Lee M. Lev i te r and J a son S . V inokur , a s soc i a te s in S t roock ’ s L i t i ga t ion and Government Re la t ions P rac t i ce Groups , whose cont r i but ions to r e sea rch ing and wr i t ing the a r t i c l e s in th i s i s sue were inva luab le .

Triborough and Interest Arbitration: A Balanced

Approach to Collective Negotiations

Summer 2012

Introduction

Last year saw debilitating losses to public sector workers. Anti-union bills in both Wisconsin and Ohio rolled back core collective bargaining rights amidst fierce public debate.1 More recently, Wisconsin’s pro-union voters were unable to oust Governor Scott Walker in a recall election, while residents of San Diego and San Jose voted to cut the pension benefits afforded to city workers.2 New York, long a bastion of public sector strength, proved not immune to anti-union sentiment with the recent legislative adoption of Tier 6 limits on pension levels for new hires. Now, labor’s opponents are targeting the Taylor Law, the statute enacted to maintain balanced labor relations throughout the state.

Critics seem particularly intent on repeal, or at least reform, of the Triborough Amendment. This provision of the Taylor Law forbids public employers from unilaterally changing the terms and conditions of employment during negotiations after the existing contract has expired, allowing workers to “benefit” from the terms of the previous contract until a new one is reached. (As discussed below, absent from the discourse regarding the

Triborough Amendment has been what unions agreed to forego in return for this protection.) Critics also are opposed to a provision of the Taylor Law that compels police officers, firefighters, and other uniformed personnel to resolve impasse via interest arbitration. They not only object to the provision’s interaction with Triborough, which ensures that employers cannot compel unions to enter into arbitration before there is genuine impasse, but also argue that interest arbitration should be more favorable to employers.

ALSO IN THIS ISSUE

Protecting Privacy in the Technology Age: The Scope of GPS Tracking of Public-Sector Employees in the Wake of U.S. v. Jones………………………..………..9 A Hopeful Outlook On Privacy Rights For Public Sector Employees……………………………………16 State Court Appellate Division: Health and Hospital Employees Have No Standing to Sue under Health and Safety Regulations…………………………………...20

Negotiating “No-Layoff” Clauses In The Aftermath Of

Johnson City Professional Firefighters Local 921 v. Village of

Johnson City…………………………….…………….24

s t r o o c k & s t r o o c k & l a v a n l l p

Accordingly, these critics want the provision to sunset on July 1, 2013.3

Leading the attacks are the Empire Center for New York State Policy (the “Empire Center”) and the Manhattan Institute. Indeed, within the past few months, the Empire Center has attacked these protections in the pages of both the New York Times and Newsday.4 Although the Empire Center and the Manhattan Institute have long opposed labor, the concern is that their views seem to be gaining traction – a Triborough repeal bill was presented in the New York State Assembly and Governor Cuomo may be considering a suspension of the Amendment.5

Any change to the Taylor Law would have dramatic ramifications for labor relations throughout New York State. The Taylor Law requires that the municipal administration of collective bargaining be “substantially equivalent” to administration of the Taylor Law by the Public Employee Relations Board (“PERB”).6 Accordingly, the New York City Collective Bargaining Law (“NYCCBL”), applicable to public employees in New York City, includes a provision analogous to the Triborough Amendment, and administration of this provision tracks with PERB’s administration of state law.7 With respect to compulsory interest arbitration, the Taylor Law also covers corrections officers and certain detective- and criminal-investigators,8 and affords optional coverage to unions representing transit employees throughout New York City.9 Furthermore, police and fire personnel (and certain other investigators) in New York City may petition PERB to assert exclusive jurisdiction over impasse proceedings, thereby subjecting themselves and their adversaries to the Taylor Law’s compulsory interest arbitration provisions.10 Any state-level attack on compulsory arbitration would equally threaten labor relations for these workers.11

These critics, however, ignore the delicate

balance at the heart of the Taylor Law: protecting the public against the disruption of public services while simultaneously protecting the rights of public employees.12 They “forget” that the Taylor Law strips public employees of their essential democratic right to strike,13 making Triborough and interest arbitration essential protections during the bargaining process. They further fail to account for empirical evidence of how collective negotiations actually function. Ultimately, their myopic focus on making bargaining outcomes less expensive threatens to destabilize labor relations throughout the state.

A Needed Protection

1. Tilting The Scale

Critics claim the Triborough Amendment chills

collective negotiations. The repeal bill that was brought before the New York State Assembly asserts that the Amendment “undermines the collective bargaining process and discourages those at the negotiating table from making givebacks or concessions.”14 Similarly, the Empire Center brazenly asserts that repeal of the Triborough Amendment would “restore at least some balance” to collective bargaining in New York State.15 However, repeal would actually accomplish the opposite, tilting the scales heavily in management’s favor and ultimately threatening the unions’ ability to adhere to the strike prohibition.

To argue that Triborough should be repealed because it “disincentivizes unions from making concessions”16 is simply to argue that unions should make more concessions. Indeed, without Triborough, employers could put undue pressure on unions through unilateral changes, ultimately putting unions’ backs up against the strike prohibition. A brief history of the Amendment is instructive.

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2. Correcting An Imbalance

During the early years of the Taylor Law, public employers took advantage of the legal prohibition against public sector strikes. If a bargaining contract expired during the course of contract negotiations, many employers would unilaterally modify employment conditions in order to pressure unions. Worse, employers often deliberately prolonged contract negotiations specifically to employ this tactic.17 Even when employers did not unilaterally change workplace conditions, long periods without a contract meant long periods without raises and benefits, frustrating union membership and imposing unfair pressure upon leaders to make extraordinary concessions. The result was widespread employer abuse and corresponding labor unrest, with over 100 illegal strikes within the first five years of the law’s passage.18

In 1972, PERB addressed this type of unilateral change with respect to mandatory subjects of bargaining in Triborough Bridge and Tunnel Authority.19 In what became known as the Triborough doctrine, PERB found that “the statutory prohibition against an employee organization resorting to self-help by striking imposes a correlative duty upon a public employer to refrain from altering terms and conditions of employment unilaterally during the course of negotiations.”20 In PERB’s assessment, removing the right to strike crippled the union’s ability to negotiate effectively, and employers who made such unilateral changes did so in bad faith.

Approximately 180 strikes over the next ten years prompted the New York State Legislature to take further action. The so-called Triborough Amendment, passed in 1982, prohibited public employers from “refus[ing] to continue all the terms of an expired agreement until a new agreement is negotiated” unless – importantly – the union went on strike.21 The Legislature thus recognized a more equitable workplace balance:

unions that acceded to the goal of maintaining labor stability in the public sector would be protected from unilateral changes when their contracts expired during negotiations. Moreover, New York City’s Board of Collective Bargaining soon read the Amendment into its own jurisprudence.22

The Amendment enacted into law a fundamental component of PERB’s jurisprudence: “[t]he sine qua non of negotiating in good faith is refraining from imposing unilateral changes in terms and conditions of employment during negotiations.”23 Indeed, as history shows, employers have little reason to bargain at all if they remain able to make unilateral changes during the bargaining process. Thus, those who claim that repeal would “restore balance” to labor relations in New York are, in fact, seeking to destroy a fundamental piece of the existing balance. It is Triborough that restored fairness and balance. In its absence, the system would both deprive employees of their basic right to strike and subject them to the employer’s unchecked ability to obtain concessions to unreasonable demands by strong-arming unions into “agreement.” Good-faith bargaining would be rendered meaningless.

3. Stepping On Step Increases

Even if outright repeal is beyond reach, critics such as the Empire Center alternatively argue that step increases should be removed from Triborough’s ambit because they are too costly to maintain during the negotiation period. The argument fails on its own terms.

First, step increases accrued during impasse do not pose a budgetary burden because they are predictable and, therefore, planned-for by the employer. They also tend to be modest and infrequent.

Second, the argument entirely misrepresents the economics of contract negotiations. Step raises

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only increase costs during the negotiation if (1) negotiations are protracted for sustained periods beyond the contract’s expiration and (2) one assumes – as the Empire Center does – that a new agreement will not only fail to provide any raises but also include substantial salary cuts. Wages and steps are almost always a part of a collective agreement and often apply retroactively, so the “increased costs” accrued during negotiations are nothing more than the costs the employer would have faced if the new contract had been agreed upon immediately.

More broadly, attacks on the “cost” of step increases are thinly-veiled reiterations of municipal employers’ ongoing objections to the labor costs associated with having a unionized workforce, a complaint PERB has consistently maintained is to be resolved through negotiation.24 Indeed, the Empire Center’s fixation on step increases fails to account for the fact that unions achieve reasonable cost reductions through reduced benefits and increased productivity. Moreover, employers often delay payments of step raises accrued during contract negotiations, are reluctant to pay back-pay once a new contract is signed, and refuse to pay any accrued interest. Back-pay thus effectively functions as an interest-free loan from union to employer during the negotiation period, further incentivizing employers to prolong negotiations.

Finally, even though Triborough helps establish a sustainable balance, employers still maintain considerable authority to reduce costs and put pressure on unions even during a status quo period. In extreme cases, such as when New York City teetered on the brink of bankruptcy in the mid-1970s, and when Buffalo entered a fiscal crisis in the mid-2000s, municipalities may seek to freeze public sector wages within the confines of the federal Contracts Clause.25 The union has no equivalent power, and removing Triborough would only tilt the scales further in management’s favor.

4. Finality and Stability

Beyond protecting unions against unilateral changes during the negotiation process, Triborough also protects uniformed personnel and others from employers who seek to force arbitration before there is genuine impasse. Under Triborough, unions subject to compulsory interest arbitration must authorize the initiation of arbitral proceedings. But the Empire Center charges that this provision enables police and fire unions to simply “lock in” all of their contract provisions, leaving employers without any ability to unilaterally commence interest arbitration.26

A discussion of the provision at issue informs the response to this complaint. The Taylor Law generally provides that PERB may declare impasse upon petition or consent of the union. Once impasse is declared, the parties must first attempt to resolve the dispute via mediation, then via fact-finding, then via legislative determination.27 During the fact-finding process, the parties may voluntarily submit to arbitration. The law differs slightly for police, firefighters, transit workers and other uniformed forces – the parties must submit to final, binding arbitration if they cannot resolve the dispute through mediation.28 It is this alternative procedure that is due to expire July 1, 2013.

The Triborough Amendment modified this process. It set forth that an employer may not change the terms and conditions of employment “until a new agreement is negotiated,”29 but ultimately left unclear whether an employer may change workplace policies as the result of an arbitral award. In City of Kingston, PERB held in the negative, seeking to prevent disingenuous employers from rushing to arbitration before exhausting good faith bargaining.30 Accordingly, PERB has read the Triborough Amendment to require the union’s consent before arbitration commences.

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PERB also responded to the critique that its reading of the Taylor Law deprives employers of the ability to petition PERB for an impasse determination: Just as an employer may not unilaterally depart from the status quo during contract negotiations, an employer must not be able to compel the union to accept a new status quo via a decision rendered by a third party.31 Nevertheless, PERB did allow employee organizations to waive their rights under Triborough,32 thus ensuring that disputes are resolved when there is genuine impasse.

The Empire Center also alleges that compulsory arbitration allows unions to block arbitration indefinitely. This fear is simply unfounded because both parties always retain an obligation to bargain in good faith. Furthermore, given the employer’s ability to effect layoffs, unions remain under pressure to reach agreement. The truth of this is borne out by the City often being the source of delay in negotiating new agreements. Eliminating Triborough would embolden the City’s continued efforts to forestall the efficient and fair resolution of differences during the bargaining process.

Ultimately, the Triborough Amendment’s protections are an effort to perfect the balance between protecting workers’ rights and maintaining labor peace. A union that is denied its fundamental right to strike must have the assurance that the employer will neither unilaterally change the terms of conditions of employment, nor rush to impasse in order to impose new terms and conditions via the decree of a third party. Similarly, impasse resolution must allow the parties to come to mutual agreement when they are able, while also providing for finality when they remain divided. Critics ignore these fundamental goals.

An Attack On Impasse Resolution

Detractors also seek repeal and reform of compulsory interest arbitration itself. The

Manhattan Institute claims that arbitral awards have unduly increased firefighter salaries across the state, and advocates that the New York State Legislature allow the provision to expire on July 1, 2013.33 These positions, like those to repeal Triborough, misunderstand the purpose of interest arbitration and misconstrue its effect.

Compulsory interest arbitration has played a central role in maintaining labor stability over the past several decades. The Taylor Law was originally passed without mention of interest arbitration,34 because the law’s drafters anticipated that arbitration would undermine collective negotiations.35 However, 40 illegal strikes within the first three years of the Taylor Law’s passage36 made it clear that the Committee had underemphasized the value of an impasse process that ultimately provided finality for employers, employees, and the public. The Taylor Law was amended in 1974 to provide compulsory arbitration for police and firefighters on a three-year experimental basis,37 with the goal of ensuring that services remained uninterrupted in these sectors. The solution has largely worked, explaining why the provision has been expanded to transit workers, corrections officers, and investigators, and renewed repeatedly through the present.

Contemporary critics falsely assert that compulsory interest arbitration encourages unions to “rush to arbitration.”38 At the outset, this argument is in direct tension with cries to repeal Triborough based on the fear that unions will prevent arbitration indefinitely. Moreover, there is no evidence that interest arbitration has increased the number of arbitral awards at the expense of negotiations.39 To the contrary, a Cornell University study surveying awards between 1990 and 2000 found that the availability of interest arbitration “encourages parties to be more realistic in their negotiations and to settle their impasse without award.”40 It found that, even though 28% of firefighter units and 40% of police units went to

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impasse, an award was issued to resolve only 7% of firefighter and 9% of police contracts, with the remaining contracts being resolved voluntarily.41 Statistics also show that among New York City’s police and firefighter unions, 11 contract negotiations reached impasse between 2000 and 2010, and only three were resolved by arbitration.42 The rest were resolved by voluntarily means.43

Similarly unsupported by empirical evidence are claims that compulsory interest arbitration unduly increases salaries for firefighters and police officers.44 The same Cornell University study found that compulsory interest arbitration has not “led to an escalation of wages beyond wage levels negotiated by police and firefighters in other states without arbitration.”45 Between 1990 and 2000, firefighters’ wages in New York State decreased by 0.65%. By contrast, wages increased by 6.57% in states with arbitration statues, by 8.71% in states without bargaining statutes, and by 15.72% in states using non-binding mechanisms of dispute resolution such as mediation and fact finding. Police wages in New York State between 1990 and 2000 increased only 6.49%. By comparison, wages increased by 5.25% in other states with arbitration statues, by the same amount in states without any bargaining law, and by 8.82% in states employing non-binding mechanisms of dispute resolution.46

Short of outright repeal, critics also propose several reforms. McMahon argues that the employer’s “ability to pay” should be the arbitrators’ primary priority when rendering their decisions. Although the Taylor Law already requires arbitrators to account for “the financial ability of the public employer to pay,”47 McMahon advocates for a “rigorous analysis of fiscal capacity in local communities.”48 Essentially, he asks arbitrators to take the employer’s presentation of its own budgetary constraints at face value, thus assuming that employers are acting in good faith. But claims of a fiscal shortfall too often

reflect a mere unwillingness to allocate the necessary resources. Even Mayor Bloomberg acknowledges that municipal budgets intentionally underestimate revenues in anticipation of engaging in collective negotiations.49 They are inherently political documents.

Ultimately, calls for repeal and reform of compulsory interest arbitration ignore history and empirical evidence. Interest arbitration exists because it provides needed finality when the parties cannot satisfactorily resolve a contract dispute. Proposed “reform measures” would wholly undermine these aims, and repeal would churn up labor unrest throughout the state. Similarly, there is no evidence that arbitration chills negotiations or excessively benefits unions. Most impasses are resolved prior to an award being issued by the arbitrator. And cries to repeal compulsory interest arbitration based on the fear that unions will rush to arbitrate are at odds with cries to repeal Triborough based on the fear that unions will prevent arbitration indefinitely. The arguments give lie to each other.

Conclusion

The Triborough Amendment and compulsory interest arbitration represent attempts by the courts and legislature to restore balance and stability to a regime that deprives unions of the basic democratic right to strike. Still, critics now argue that the system of collective negotiations should be more favorable to the employer under the false banner of “restoring balance.” But rather than improving the balance, their efforts would selectively undermine the existing balance in negotiation process, undercutting a 40-year history of legislative fine-tuning and judicial contemplation and contravening empirical facts about the process of collective negotiation. Critics risk destabilizing labor relations statewide because their attempts to

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cheapen the outcomes will ultimately cheapen the process.

For More Information

Alan M. Klinger 212.806.5818 [email protected]

1. Ohio voters thankfully repudiated the anti-union bill in

a referendum several months later. Sabrina Tavernise, “Ohio Turns Back a Law Limiting Unions’ Rights,” N.Y. TIMES at A1 (Nov. 9, 2011).

2. Michael Cooper & Mary Williams Walsh, “San Diego and San Jose Lead Way in Pension Cuts,” N.Y. TIMES at A1 (June 7, 2011).

3. See N.Y. CIV. SERV. LAW § 209.

4. E.g., Danny Hakim, Even without Contracts, Unions in State Get Raises, N.Y. TIMES, April 10, 2012, at A18.E.J; McMahon, “Nassau’s Generous Police Pay Can’t Go On,” NEWSDAY, Feb. 23, 2012, at A37.

5. See A01329, 2012 Assemb. (proposing a repeal of the Triborough Amendment); Hakim, supra note 4 (explaining Governor Cuomo’s position).

6. N.Y. CIV. SERV. LAW § 212(1), (2).

7. The NYCCBL sets forth that an employer may not make a unilateral change to any mandatory subject of bargaining, or to any term and condition of employment established by the previous contract. NYCCBL §12-306(a)(5). Even before the provision was codified into the NYCCBL, the Board of Collective Bargaining determined that it was compelled by the Taylor Law to comply with the Triborough Amendment itself. See LaRivere v. White, 39 OCB 36 (BCB 1987) (Anderson, Arb.). For a summary of PERB’s Triborough jurisprudence, see, e.g., Dist. Council 37 v. City of New York, 71 OCB 12 (BCB 2003) (Semel, Arb.)

8. See N.Y. CIV. SERV. LAW § 209(2).

9. Covered by this provision are employees of the New York City Transit Authority, the Metropolitan Transit Authority, and the Staten Island Rapid Transit Operating Authority. See id. at § 209(5)(a), (f) (permitting relevant employee organizations to elect to be covered by the provision within 60 days of the provision’s enactment).

10. N.Y. CIV. SERV. LAW § 212(3); see also Patrolmen’s Benevolent Ass’n., 34 PERB 7040, *2 (2001). Pursuant to the holding of Patrolmen’s Benevolent Ass’n., the Board of Collective Bargaining retains jurisdiction to determine

the scope of bargaining outside of the impasse context. Id. at *5.

11. Moreover, repeal or reform of compulsory arbitration at the state level could prompt New York City to revisit the impasse process under the NYCCBL.

12. See State of New York, Governor’s Committee on Public Employee Relations, Final Report, March 31, 1966, reprinted in, 1 Jerome Lefkowitz, et al., Public Sector Labor and Employment Law (3d ed. 2001) [hereinafter Taylor Report].

13. Id. at 70.

14. A01329 2012 Assemb.

15. EMPIRE CENTER FOR NEW YORK STATE POLICY

[EMPIRE CENTER], TRIBOROUGH TROUBLE: HOW AN

OBSCURE STATE LAW GUARANTEES PAY HIKES FOR

GOVERNMENT EMPLOYEES – AND RAISES THE TAX

TOLL ON NEW YORKERS 13 (Jan 11, 2012), available at http://www.empirecenter.org/Documents/PDF/Triborough%20Final1.pdf. The same sentiment is echoed by the New York Conference of Mayors (“NYCOM”). NYCOM, YOU CAN’T CAP WHAT YOU CAN’T

CONTROL: RECOMMENDATIONS OF THE MAYORAL

TASK FORCE ON MANDATE AND PROPERTY RELIEF 11 (December 2010) (arguing that the Triborough Amendment “discourag[es] unions from offering concessions or givebacks).

16. EMPIRE CENTER, supra note 15, at 8.

17. RONALD DONOVAN, ADMINISTERING THE TAYLOR

LAW: PUBLIC EMPLOYEE RELATIONS IN NEW YORK 187 (1990).

18. Between 1967 and 1972, there were 121 illegal strikes. Id. at 205 tbl. 9.2.

19. 5 PERB 3037 (1972).

20. Id.

21. This exception to Triborough encompasses other organized activity short of actual strikes, including any “concerted stoppage of work or slowdown by public employees.” N.Y. Civ. Serv. Law § 209-a.1(e) (emphasis added).

22. See LaRivere v. White, 39 OCB 36 (BCB 1987) (Anderson, Arb.) (applying the Triborough Amendment). A provision analogous to the Triborough Amendment was adopted in 1998.

23. Bd. of Coop. Educ. Servs., 8 PERB 3018 (1975).

24. See supra note 19, at 3065 (responding to the argument that “‘[a]t the time of economic contraction…the [Triborough] precedent would operate effectively to prevent the managers of public agencies from conforming to changed circumstances and operating those agencies in a business-like manner.’”)

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http://www.stroock.com/aklinger

http://www.empirecenter.org/Documents/PDF/Triborough%20Final1.pdf

http://www.empirecenter.org/Documents/PDF/Triborough%20Final1.pdf


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25. [1975] N.Y. LAWS 1405 § 10 (McKinney); N.Y. PUB. AUTH. §3854. A wage freeze may only be enacted as a last resort, and litigation is pending against the Nassau Interim Finance Authority and Nassau County for its failure to adhere to that requirement. Carver v. Nassau Cnty. Interim Fin. Auth., No. 11 Civ. 1614 (E.D.N.Y. filed Apr. 14, 2011).

26. EMPIRE CENTER, supra note, at 6.

27. N.Y. CIV. SERV. LAW § 209.3(a)-(e).

28. Id. at § 209.4(a)-(b), (c)(vi).

29. N.Y. CIV. SERV. LAW § 209-a.1(e).

30. It reasoned that an award was not an “agreement” as defined in the Taylor Law. 18 PERB 3073 (1985). See also Niagara Cnty. Legislature, 16 PERB 3071, *2 (noting that an “agreement” is defined in the Taylor law as “the result of the exchange of mutual promises.”)

31. See City of Kingston, 18 PERB 3073 (1985).

32. Id. at *3 n.9.

33. McMahon, supra note 4 (“Because arbitral awards often are based on salaries in adjoining jurisdictions, the law [compulsory arbitration] had a ratcheting-up effect on police and firefighter pay across the state.”) See also Nicole Gelinas, “Curbing Union Excess: Small Steps for NY’s Timid Pols,” NEW YORK POST (Mar. 13, 2011) (“Optimally, Albany should get rid of binding arbitration. If nobody can agree, let the [Transport Workers Union] work without a contract (with no wage increases). Workers who don’t like it can quit.”)

34. Thomas Kochan, et al., The Long-Haul effects of Interest Arbitration: The Case of New York State’s Taylor Law, 63 ILR REV. at 6 (2010).

35. See Taylor Report, supra note 12, at 102 (expecting that compulsory interest arbitration would “be detrimental to the cause of developing effective collective negotiations.”) With respect to voluntary interest arbitration, see id. at 103 (“Voluntary arbitration on an ad hoc basis is a desirable course… although it also leads to binding decisions.”)

36. DONOVAN, supra note 17 at 205 tbl. 9.2 (demonstrating two strikes in 1967, 26 strikes in 1968, and 13 strikes in 1969).

37. Id.

38. NYCOM, supra note 15 at 10 (“Over the years that the compulsory arbitration law has been in existence, many bargaining units have sought to rush to arbitration and avoid substantive negotiations.”)

39. Kochan, supra note 34, at 26 (“There is no evidence that, on the whole, arbitration has had a chilling effect on negotiations.”)

40. Kochan, supra note 34, at 12.

41. Id.

42. The Police Benevolent Association, reaching impasse four times, accounted for all three arbitral awards. The Uniformed Firefighters Association reached impasse three times, and the Correction Officers Benevolent Association Reached impasse four times. Statistics on file with the authors.

43. Id.

44. E.J. McMahon charges without support that the arbitrators tend to be overtly pro-union. See McMahon, supra note 4 (“[t]he arbitration option – invariably invoked by unions, not management – made it easier for politicians to duck their responsibilities by deferring to ‘impartial’ (but often union-friendly) arbitrators”) (quotations in original).

45. Id. at 26.

46. Kochan, supra note 34, at 16-17. The study compared adjusted real wages. Police officer wages increased from $20.23 to $21.54, while firefighter wages decreased from $21.75 to $21.60.

47. N.Y. Civ. Serv. Law § 209(4)(c)(v)(b).

48. Terry O’Neil & E.J. McMahon, Empire Center for New York State Policy, Special Report SR4-07 Taylor Made: The Cost and Consequences of New York’s Public-Sector Labor Laws 28 n.63 (Oct. 2007). Similarly, NYCOM demands that the term be re-defined to include “the ability of a public employer to pay all economic costs to be imposed on it by an arbitration award without requiring a reduction in…service or an increase in…taxes.” NYCOM, supra note 15, at 10.

49. While campaigning for Mayor in 2001, then-candidate Bloomberg explained that “the city always underestimates revenues because they have to deal with the unions.” “Sizing up Budget Cuts and Answering Criticism about Experience,” N.Y. TIMES, Nov. 1 2001.



Protecting Privacy in the Technology Age: The Scope

of GPS Tracking of Public Sector Employees in the

Wake of U.S. v. Jones

Summer 2012

Introduction

Technology has reshaped workplace life. For the most part, technological advancements have enhanced productivity and made the workplace more efficient. But with progress often come concerns, one being that some technologies offer new ways of monitoring employees,1 such as the increasing use by employers of global positioning system (“GPS”) technology in vehicles, cell phones, and other equipment, to monitor employee movements. This scrutiny is distressing and undesirable to many employees, who have recently seen alarming intrusions on their privacy. Indeed, public sector employees face a greater risk of these “Big Brother” monitoring techniques by their public sector employers because Fourth Amendment law – prohibiting unreasonable searches and seizures, and utilized as a touchstone in employment cases – considers public sector employees to have a diminished expectation of privacy at work.2

The implications of such use of GPS technology have not eluded the courts – both state and federal courts have ruled on the constitutionality of GPS

monitoring in various contexts. Most recently, the United States Supreme Court decided United States v. Jones,3 which may positively alter the legal landscape regarding when and how the government may use technology to monitor individuals.

Jones involved the appeal of a convicted criminal, Antoine Jones, who argued that evidence obtained by the warrantless use of a GPS device placed on his wife’s personal car violated his Fourth Amendment rights.4 Although the Court unanimously affirmed the D.C. Circuit’s decision to reverse Jones’ conviction, the precise contours of the Court’s holding are complex.

This article examines the significance of Jones and the impact it could have on curbing GPS supervision of public sector employees.5

Privacy in the Workplace

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .”6 New York State’s Constitution provides an analogous protection, while also


granting:

The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.7

These constitutional principles recognize that all citizens are entitled to some degree of privacy. When it comes to an employee’s privacy in the workplace, New York law explicitly recognizes such a right, albeit a limited one, in specific contexts. For example, New York law forbids employers from videotaping employees in restrooms, locker rooms and other areas where employees change clothing.8

Nevertheless, public employees occupy a unique position because they typically are recognized as having a lesser expectation of privacy in the workplace than private employees.9 This reduced expectation of privacy may explain public sector employers’ increased use of GPS technology to track their employees.

Two methods favored by employers are targeted GPS searches and blanket GPS searches. An employer conducts a targeted GPS search when, based on suspicion that an employee is violating workplace rules, the employer installs a GPS tracker to probe for information relating to the potential violations. In contrast, a blanket GPS search occurs when employers – without individualized suspicion – place GPS devices on employer-issued property to obtain information. Although targeted GPS searches have garnered more judicial attention, blanket GPS searches are more worrisome because the information gathered from constant GPS

monitoring – even the monitoring of employer-issued equipment – provides a wealth of private information about an employee. With the growing use of GPS technology in the workplace, courts have confronted these privacy issues more frequently.

GPS Cases Pre-Jones

Prior to the more widespread use of GPS technology, the Supreme Court dealt with the use of electronic surveillance devices in United States v. Knotts.10 In Knotts, the seminal Fourth Amendment case in this area, government agents had placed a beeper in a drum of chloroform to track its movement.11 Agents then monitored a car carrying the drum using visual surveillance and signals from the beeper. The Court permitted this use of beeper surveillance to track the vehicle.12 Justice Rehnquist, writing for the Court, explained that “a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy.”13 Therefore, anyone who drives on public roads willingly reveals “whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.”14

Although the Supreme Court had not grappled with the privacy issues surrounding GPS technology until Jones, New York courts have. The New York Court of Appeals ruled in People v. Weaver that the warrantless use of a GPS device to monitor a car for approximately two months violated the New York State Constitution’s provision dealing with unreasonable searches, seizures and interceptions.15 In that case, the police attached a GPS device to defendant Weaver’s vehicle without first obtaining a warrant. The police then collected data from the device for 65 days and ultimately used it to tie Weaver to a burglary for which he was tried and convicted.

In reaching its conclusion, the Weaver court distinguished Knotts. Chief Judge Lippman noted

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that the tracking device in Knotts was primitive and required police officers actively to follow the vehicle on which the device was attached. By contrast, the GPS is “vastly different and exponentially more sophisticated technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability.”16 The court appeared troubled by this invasive technology and recognized that although GPS monitoring provides certain information comprehensively, it lacks the interpretive or contextual element that only a human can provide. Even though the Weaver court declared the GPS search illegal under the New York State Constitution, it refused to address the issue of whether the search violated the United States Constitution, because there were no applicable federal laws or court decisions on topic at the time.

New York courts appear less willing to find wrongdoing when the government uses GPS technology to monitor public employees. This is possibly because cases involving work-related misconduct of public employees are judged by a more lenient standard than is applied in criminal proceedings. New York’s Appellate Division, Third Department, articulated the more lenient standard in Cunningham v. New York State Department of Labor.17

In Cunningham, the court found that the constitutional rights of Michael Cunningham, a state employee, were not violated when the New York Inspector General’s Office (“OIG”) installed a hidden GPS tracker on Cunningham’s personal car to determine whether he was skipping work. The OIG was investigating Cunningham for suspicion of taking unauthorized absences from work and falsifying time records. As part of the investigation, the OIG installed multiple GPS devices on Cunningham’s car over the span of 30 days. Along with other evidence, the data extracted from the GPS devices was used to demonstrate Cunningham’s misconduct, for which

the Commissioner of Labor later terminated him. Cunningham appealed the administrative decision.

Justice Lahtinen, writing for the court, observed that because of Weaver, any GPS evidence gathered in this case would likely have been suppressed in a criminal trial. However, Justice Lahtinen noted, the Weaver standard is not controlling when a public employer is investigating work-related misconduct. Such cases are “judged by the standard of reasonableness under all the circumstances, both as to the inception and scope of the intrusion.”18 Moreover, this rule requires “balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth.”19 Finally, the clarity of the law at the time the government official acts factors into this assessment.

Applying this standard, the court found that the installation of the GPS was reasonable as was the scope of its use. Two dissenting justices said that the GPS monitoring was warranted at its inception, but that collecting data for 30 days was too broad in scope. The dissent argued that the government’s interest in Cunningham’s whereabouts extended only to his business hours, yet the device collected data every second of every day for over a month, including during a week-long family vacation.20 Understanding the implications that GPS technology has on privacy, the dissenting justices felt that “deterring such intrusive conduct outweigh[ed] the detrimental impact on the process of determining the truth.”21

Although the Weaver and Cunningham decisions point in opposite directions, the Supreme Court’s recent decision in Jones may serve to unify the two cases while providing a new argument against Orwellian GPS tracking by employers.

United States v. Jones

Jones, the owner and operator of a Washington, D.C. nightclub, was suspected of trafficking in

11


narcotics. The FBI and Metropolitan Police Department targeted him in a joint investigation. After gathering information on him using various investigative techniques, the officers applied for a warrant authorizing the installation of a GPS device for a Jeep registered to Jones’ wife. A warrant was issued that required the GPS tracker to be installed within ten days in Washington, D.C. The device was ultimately mounted in Maryland on the eleventh day. Over the next 28 days, the device tracked the vehicle’s movements.

Jones was indicted for various drug crimes based in part on the recordings of the GPS. Before trial, he moved to suppress those recordings as evidence. The district court excluded some of the data, but deemed much of it admissible, citing the Knotts principle that a person traveling in an automobile on a public road has no reasonable expectation of privacy in his movements.22 Jones’ initial trial produced a hung jury on one count of the indictment. However, he was eventually convicted and sentenced to life imprisonment. The Court of Appeals for the D.C. Circuit reversed his conviction on the grounds that the GPS data should have been excluded as a Fourth Amendment violation.

The issue before the Supreme Court was “whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.”23 A majority of the Court joined Justice Scalia’s narrowly crafted opinion, which applied a “common-law trespassory” test.24 Under this test, physical occupation of private property for the purpose of obtaining information qualifies as a search.25 Here, the installation of the GPS and extraction of data from it fell within the standard. Importantly, the Court refused to address an alternative argument that was waived by the Government: even if the

attachment and use of the GPS was a search, because the officers had probable cause it was lawful under the Fourth Amendment.

In contrast, Justice Alito, who authored a concurring opinion joined by the remaining Justices,26 came to the same conclusion using the “reasonable expectation of privacy” test espoused in Katz v. United States.27 Justice Alito argued that the Katz Court, by holding that a physical trespass was no longer required for a Fourth Amendment violation, abandoned the “common-law trespassory” test entirely.28 Therefore, Justice Alito considered “whether [Jones’] reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”29 Without determining the precise point at which the GPS monitoring became a search, Justice Alito contended that four weeks of constant observation certainly offends a person’s reasonable expectation of privacy. He chided Justice Scalia for relying on a common-law privacy doctrine that could not possibly comprehend present GPS technology – facetiously suggesting as a possible 18th-century analog a case where a constable hid in a coach to monitor the movements of the coach’s owner. Justice Alito’s rejoinder was that “this would have required either a gigantic coach, a very tiny constable, or both – not to mention a constable with incredible fortitude and patience.”30

Nevertheless, the difficulty in determining the full implications of Jones lies not with the dispute between Justice Scalia and Justice Alito, but with Justice Sotomayor’s concurrence. On the one hand, she joined the majority and agrees with the “common-law trespassory” theory “that a search within the meaning of the Fourth Amendment occurs, at a minimum, ‘[w]here as here, the Government obtains information by physically intruding on a constitutionally protected area.’”31 In Justice Sotomayor’s view, reduction of the Fourth Amendment to the Katz standard alone

12


“erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control.”32

On the other hand, Justice Sotomayor appears to be sympathetic to Justice Alito’s conclusion that longer-term GPS monitoring will offend reasonable expectations of privacy in many instances. However, although her concurrence notes that the dangers of GPS technology include “making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track,33 it also notes that the technological advances that have made nontrespassory surveillance feasible will also shape (and perhaps lessen) society’s privacy expectations. Hence, in future cases Justice Sotomayor may be willing to join the segment of the Court that sided with Justice Alito, leaving the current state of the law murky at best. Still, under the facts of Jones, all of the Justices were loathe, for various reasons, to sign off on this intrusive, computerized monitoring technique.

Implications for Public Sector Employees

Although the lines drawn and alliances formed in Jones are muddled, the opinions provide a hopeful outlook for public sector employees who wish to see “Big Brother” dissipate. Recall that in Cunningham, the Appellate Division, Third Department, upheld the installation and subsequent GPS tracking of a public sector employee’s personal automobile. In concluding that the installation and use of the GPS was reasonable, one factor the court examined was the clarity of the law at the time the GPS was installed. The court remarked that “at the inception of the use of a GPS on [Cunningham’s] car . . . the weight of authority pointed in the direction that use of a GPS was not a Fourth Amendment violation even in the criminal law context . . . .”34 After Jones, the result in

Cunningham no longer appears viable. The “common-law trespassory” test adopted by the majority in Jones suggests that the Government engages in a search, and that it should get a warrant, any time it installs a GPS device on private property.35 Given the numerous GPS installations in Cunningham – all Fourth Amendment searches –it is likely that Cunningham would be decided differently today.

Even in the absence of a physical trespass, public sector employees might be able to successfully curb government monitoring of private property as a violation of their reasonable expectations of privacy.36 No member of the Court in Jones specifically foreclosed the possibility that GPS tracking in and of itself violates reasonable expectations of privacy. Moreover, among Justice Sotomayor and the three Justices who joined Justice Alito, there may well be a majority that would rule that long-term GPS investigations, by their very nature, infringe on an individual’s reasonable expectations of privacy. Such an argument may be invoked in future challenges to blanket GPS searches. The increased use and prolonged nature of blanket GPS surveillance appears to fit the mold of the kind of long-term monitoring technique that infringes on privacy expectations. Although the Court did not articulate a bright-line test indicating the precise point at which GPS surveillance violates expectations of privacy, there are suggestions in the decision that shorter-term monitoring would not disturb such expectations.37 Nevertheless, the Court also remarked that privacy expectations are constantly shifting with respect to new technological devices.38

The Court’s acknowledgement in Jones of the varying, and evolving, privacy expectations with respect to new technologies, provides a glimmer of hope that the Court may come to decide that public employees have a legitimate privacy interest in employer-issued property as well as in private property. Yet, in light of the Court’s current

13


approach to dealing with the scope of the Fourth Amendment’s privacy protection for government employees in the workplace, a clear resolution does not seem likely any time soon.39 Although Jones leaves many questions unanswered, it can be seen as an important first step in rebuilding the privacy protections eroded by the GPS monitoring of public sector employees. At the very least, where an employee’s private property is concerned, state employees now have strong arguments that employer use of GPS tracking is unreasonable.


Alan M. Klinger 212.806.5818 [email protected] 1. William A. Herbert & Amelia K. Tuminaro, The Impact

of Emerging Technologies in the Workplace: Who’s Watching the Man (Who’s Watching Me)?, 25 Hofstra Lab. & Emp. L.J. 355, 360 (Spring 2008).

2. Caruso v. Ward, 72 N.Y.2d 432, 439 (1988) (internal citations omitted).

3. United States v. Jones, 132 S. Ct. 945 (2012).

4. Id. at 948. Importantly, Jones relates only to the Government’s use of GPS devices on an employee’s private property. Id. at 949 (defining a search as “[t]he Government physically occup[ying] private property for the purpose of obtaining information”) (emphasis added).

5. Although there have been no Supreme Court decisions on GPS technology as it relates to government-issued property, other Supreme Court precedent indicates that it is unlikely that public sector employees have a Fourth Amendment privacy interest in such property. In O’Connor v. Ortega, the Supreme Court attempted to elucidate a standard on the scope of Fourth Amendment protection for government employees in the workplace. 480 U.S. 709 (1987). The Court held that “[i]ndividuals do not lose Fourth Amendment protections merely because they work for the government instead of a private employer,” but a majority was unable to agree on a framework for Fourth Amendment claims against state employers. Id. at 717. Instead, a four-Justice plurality held that a two-step analysis applies. A court must first consider the “operational realities of the workplace” to determine whether an employee’s constitutional rights are involved. Id. Next, if an

employee has a legitimate expectation of privacy, “public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all circumstances.” Id. at 725-26. Recently, the Supreme Court employed O’Connor as guidance in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), where it ruled – on the specific facts of the case – that a state employee had no legitimate expectation of privacy in text messages sent from a government-issued pager. The Court refused to establish whether a government employee enjoys a reasonable expectation of privacy when using government-issued equipment and instead opted to cabin its opinion at the risk of “elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” Id. at 2629. Thus, without a clear standard, and a case finding no legitimate expectation of privacy in a government-issued pager, it appears that the Supreme Court is less apt to find privacy interests in government-issued property.

6. U.S. Const. amend IV.

7. N.Y. Const. art. I, § 12.

8. N.Y. Lab. Law § 203-c (2008).

9. Caruso, 72 N.Y.2d at 439 (internal citations omitted).

10. 460 U.S. 276 (1983).

11. Knotts did not challenge the warrantless installation of the beeper because he believed he lacked standing to make such a challenge. Id. at 279 n.1. Although the Court noted that several Courts of Appeals had approved warrantless installations, it refused to rule on that issue. Id.

12. Id. at 285.

13. Id. at 281.

14. Id. at 282.

15. 12 N.Y.3d 433 (2009).

16. Id. at 441.

17. 933 N.Y.S.2d 432 (3d Dep’t. 2011).

18. Id. at 435.

19. Id.

20. Id. at 437 (Spain, J., dissenting).

21. Id.

22. See Knotts, 460 U.S. at 282.

23. Jones, 132 S. Ct. at 948.

24. Chief Justice Roberts and Justices Kennedy, Sotomayor and Thomas joined Justice Scalia’s opinion.

14



15

25. Jones, 132 S. Ct. at 949.

26. Justices Breyer, Ginsburg and Kagan joined Justice Alito’s opinion.

27. 389 U.S. 347 (1967). Katz involved the use of an electronic eavesdropping device on a public phone booth. Although the device did not physically intrude on the area occupied by a caller, police officers were able to record a target’s conversations. The Court held that the Fourth Amendment protects all areas where a person has a reasonable expectation of privacy even where there is no physical trespass. Id. at 358.

28. Acknowledging that later cases beginning with Katz have deviated from the “common-law trespassory” test in favor of a “reasonable expectation of privacy” standard, Justice Scalia cautioned that Katz did not eliminate the former. Id. at 950. As support for this position, Justice Scalia references Justice Brennan’s concurring opinion in Knotts, stating “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” Knotts, 460 U.S. at 286 (Brennan, J., concurring).

29. Jones, 132 S. Ct. at 958 (Alito, J., concurring).

30. Jones, 132 S. Ct. at 958 n.3 (Alito, J., concurring).

31. Id. at 954 (Sotomayor, J., concurring).

32. Id. at 955.

33. Justice Sotomayor, like Justice Lahtinen in Weaver, recognizes the plethora of private information that GPS tracking provides. Id. at 955-56 (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”) Furthermore, knowledge that the Government may be watching chills other important associational and expressive freedoms. Id. at 956.

34. Cunningham, 933 N.Y.S.2d at 436 n.4.

35. Several cases decided since Jones have confirmed this notion. See, e.g., Paige v. New York City Police Dep’t, No. 10-CV-3773 (SLT)(LB), 2012 WL 1118012, at *3 (E.D.N.Y. Mar. 30, 2012) (finding that electronic

surveillance similar to GPS monitoring conducted without a warrant constituted a violation of the Fourth Amendment); State v. Adams, No. 4964, 2012 WL 1416414, at *3 (S.C. Apr. 25, 2012) (same). But see, United States v. Amaya, No. CR 11-405-MWB, 2012 WL 1188456, at *4 (N.D. Iowa Apr. 10, 2012) (“Jones left open the question of whether a warrant is required for GPS monitoring or if . . . warrantless GPS monitoring is lawful when officers have reasonable suspicion or probable cause to believe that a vehicle is involved in illegal activity.”)

36. At least one court commented that the five concurring justices in Jones might use the “reasonable expectation of privacy” test to find a Fourth Amendment violation when the government conducts electronic surveillance on a person’s movements for an extended period of time without a warrant. In re Application of United States for an Order Pursuant to Title 18, U.S.C. § 2703(D) to Disclose Subscriber Information and Cell Site Information, No. 12-MJ-1084RBC, 2012 WL 989638, at *1 (D. Mass. Mar. 23, 2012). See also, State v. Zahn, No. 25584, 2012 WL 862707, at *6 (S.D. 2012) (deciding that under the “reasonable expectation or privacy test,” law enforcement violated the defendant’s subjective expectation of privacy in his movements by attaching a GPS to his vehicle and monitoring his movements for 26 days); Montana State Fund v. Simms, 270 P.3d 64, 71 (“Montanans do not reasonably expect that [the] state government, in its unfettered discretion and without a warrant, is recording and aggregating their everyday activities and public movements in a manner which enables the State to ascertain and catalog their political and religious beliefs, their sexual habits, and other private aspects of identity.”)

37. See Jones, 132 S. Ct. at 964 (Alito, J., concurring) (“[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.”)

38. Id. at 963 (“The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.”)

39. See supra note 5.



A Hopeful Outlook on Privacy Rights for Public

Sector Employees

Summer 2012

Introduction

The mantra is often repeated that public employees have a greatly diminished privacy interest while on the job.1 Recent events brought renewed focus on the scope of such rights, possibly evidencing (even in the face of an adverse decision) a shift in how these rights will be viewed going forward. First, this article discusses the controversy sparked by the publication of Teacher Data Reports (“TDRs”) by the Board of Education of the City School District of the City of New York (“BOE”), and the recent willingness of state representatives and courts to consider the privacy interest of public employees in policy decisions. It will also address American Federation of State County and Municipal Employees (“AFSCME”) Council 79 v. Scott,2 a recent Florida case where a federal judge struck down – as a Fourth Amendment violation – a program that would have required many state employees to undergo random drug testing.

Teacher Data Reports

Beginning in the 2007-2008 school year, the BOE launched a pilot program designed to test a possible teacher performance evaluation tool.

Teachers consented to participate in this program based on the BOE’s assurance that any information measuring teacher performance would be kept confidential. Teachers were then ranked – in reports known as TDRs – utilizing a complex formula that factored in student demographics as well as certain standardized test scores. Although City officials defended these reports, many others criticized them as unreliable. Independent experts, school administrators and teachers all expressed concerns over the large margins of error and otherwise flawed methodology of the rankings. Specifically, the rankings were compiled from a small sample size and contained factual errors and omissions, among numerous other problems. For example, fifth grade teachers in some schools “departmentalize,” meaning there is one teacher who teaches only English and Language Arts (“ELA”) to the entire 5th grade and another teacher who teaches all of the math classes. Some teachers received two scores - one for ELA and one for math - even though each teacher only taught one of these subjects.

In 2010, pursuant to New York’s Freedom of Information Law (“FOIL”), various news organizations requested the release of these TDRs. After the BOE approved their requests, the United Federation of Teachers (“UFT”) objected. The


UFT sued the BOE in state court to enjoin the dissemination of TDRs, unless the BOE redacted the reports and removed any teachers’ names. The BOE had redacted teacher names in response to prior FOIL requests. The UFT argued, among other things, that releasing the teachers’ names was an unwarranted invasion of their personal privacy. However, the court rejected this argument and determined the BOE could reasonably have concluded that releasing the teachers’ names was not an intrusion on the teachers’ personal privacy.3 The UFT appealed.

Although the appellate court found that the trial court incorrectly reviewed the BOE’s decision to release the reports, it nonetheless held that the TDRs should be disclosed under FOIL.4 The court stated that TDRs do not fall within either of FOIL’s statutory exemptions for intra-agency materials or personal privacy.5 While the court acknowledged that releasing the teachers’ names would implicate privacy interests, it found on balance, the public interest in disclosure of unredacted information outweighed the privacy interests at stake.6

The conflict has continued since the TDRs’ release. Proponents, including Mayor Michael Bloomberg, continue to believe that TDRs, though now abandoned, contain valuable information that the public has a right to see. On the other hand, despite warnings by the BOE against using these rankings to draw specific conclusions about individual teachers, teachers are still worried – and with good cause. Since the release of the TDRs, teachers in New York City have become subject to unfair attacks with segments of the media maligning educators based upon an uninformed view of rankings that are based on reports that are fundamentally flawed.7 Within 24 hours of the posting of the TDRs, reporters singled out a Queens English-as-a-Second Language teacher, rushed to her parents’ home to locate her, eventually found her home in a “private housing development,” and harassed her for

comment.8 She declined to speak with reporters, and even had to call the police twice to have the reporters removed.9 The harassment continued following this event, when an article described the teacher as “the city’s worst teacher.” This example illustrates why many believe the public shaming of teachers after the release of the TDRs demonstrates why the release went too far and was ill-advised. Even Bill Gates, hardly a defender of public servants, decried the release of TDRs as a “capricious exercise in public shaming.”10

Faced with this polarized situation, Governor Andrew Cuomo brought the issue to the State legislature. Recognizing that evaluations for some city employees – such as firefighters and police officers – are already shielded though the majority are not,11 Governor Cuomo recognized the need for a better balance between the teacher’s right to privacy, the parents’ right to know, and the public’s awareness. Governor Cuomo produced a legislative compromise rejecting Mayor Bloomberg’s position that there should be full disclosure of teacher evaluations.12 The law reflects the recognition that it would become more difficult to attract teachers to the profession – a necessary and important one – if they risk being subject to potential persecution. It requires public disclosure of the final annual rating of teachers and principals.13 Personally identifying information for any teacher or principal may not be disclosed, except to parents and legal guardians under limited circumstances.14 Parents and legal guardians may only request a review of the ratings and scores for the teachers and principal of the school to which the student is assigned for the current school year.15

A recent Court of Appeals decision, Harbatkin v. N.Y.C. Dep’t of Records & Info. Servs.,16 reinforces the propriety of the approach taken by policy makers. Harbatkin involved a historian’s FOIL request for unredacted transcripts of interviews conducted during the middle of the twentieth century with informants who provided the BOE with information about teachers it suspected were

17


current or former members of the Communist Party.17 The City, which promised certain informants that their reports would be kept confidential, was apprehensive that providing the materials would invade the privacy of the people identified in them. The First Department agreed and recognized the importance of such promises. Although the Court of Appeals appreciated the impediment that working with redacted transcripts would cause, it nonetheless concurred with the First Department and concluded that the City’s promise of confidentiality outweighed this hardship: “We find it unacceptable for the government to break that promise, even after all these years.”18 Thus, the Court highlighted the significance of promises of confidentiality by ordering disclosure of the reports, but permitting the City to redact details pertaining to informants who were guaranteed confidentiality.19

The promising tone set by New York policymakers and now the Court of Appeals – recognizing the potentially harmful side of such disclosures – continued with the recent decision by a federal judge in Florida that struck down a state program that would have mandated random drug testing for state employees.

AFSCME Council 79 v. Scott

In 2011, Florida’s Governor, Rick Scott, issued an Executive Order (“EO”) demanding quarterly drug testing of approximately 85,000 state government workers, as well as all prospective new hires. AFSCME, which represents 40,000 employees that would be covered by the EO, maintained that this policy is unconstitutional. As a result, AFSCME sued, alleging that the EO violated the Fourth Amendment’s prohibition of unreasonable searches.

In April, U.S. District Court Judge Ursula

Ungaro ruled that Governor Scott’s EO violated the Fourth Amendment’s bar on unreasonable searches and permanently enjoined the state from implementing the order.20 Guided by prior Supreme Court cases that considered the constitutionality of drug testing,21 Judge Ungaro reiterated that absent a special need or some extraordinary public interest, random, suspicionless drug testing constituted an unreasonable search.22 “The fundamental flaw of the EO,” according to the court, was “that it infringe[d] privacy interests in pursuit of a public interest which . . . [was] insubstantial and largely speculative.”23 Governor Scott asserted that the EO aimed to save taxpayer money and promote office productivity.24 Yet, without documented instances of a drug problem among state employees, mere conjecture that a problem existed was insufficient to outweigh the employees’ privacy interests.25 Any evidence that was presented failed to convince the court that state employees had a diminished privacy interest in this case.26 Accordingly, this decision suggests that the privacy rights of public employees will not be casually overlooked in the future.

Looking Ahead

The UFT’s zealous response to, and critique of, the BOE’s decision to release unredacted TDRs has been vindicated by the recent steps taken by state policymakers and the courts, which hopefully signal a more humane and nuanced approach to protecting the privacy rights of public employees. The AFSCME decision also offers the possibility that these rights will be regarded more favorably around the country than they have been in the past. Taken together, these two events provide hope for public employees that the pendulum of privacy is swinging back to a more rational place, providing greater protection for their privacy rights.

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19


Alan M. Klinger 212.806.5818 [email protected] 1. Caruso v. Ward, 72 N.Y.2d 432, 439 (1988) (internal

citations omitted).

2. No. 11-civ-21976-UU, 2012 WL 1449644 (S.D. Fl. Apr. 26, 2012).

3. Mulgrew v. Bd. of Educ. of the City School Dist. of the City of N.Y., 31 Misc.3d 296 (N.Y. Sup. Ct. 2011).

4. Mulgrew v. Bd. of Educ. of the City School Dist. of the City of N.Y., 928 N.Y.S.2d 701, 702 (1st Dep’t 2011).

5. Id. at 703.

6. Id.

7. Fernanda Santos and Robert Gebeloff, “Teacher Quality Widely Diffused, Ratings Indicate,” N.Y. TIMES, Feb. 24, 2012, http://www.nytimes.com/2012/02/25/education/teacher-quality-widely-diffused-nyc-ratings-indicate.html.

8. Louis Freedberg, Publishing Teacher Effective Rankings, Pioneered in California, Draws More Criticism, EDSOURCE.ORG, http://www.edsource.org/today/2012/pioneered-in-california-publishing-teacher-effectiveness-rankings-draws-more-criticism/6732.

9. Id.

10. Bill Gates, “Shame Is Not the Solution,” N.Y. TIMES, Feb. 22, 2012, http://www.nytimes.com/2012/02/23/ opinion/for-teachers-shame-is-no-solution.html?_r=1.

11. Section 50-a of New York’s Civil Rights law mandates that all personnel records used to evaluate the performance of firefighters, police officers and corrections officials “shall be considered confidential and not subject to inspection or review without the express written consent [of the individual] . . . except as may be

mandated by lawful court order.” N.Y. Civ. Rights Law § 50-a (McKinney 2012).

12. N.Y. Senate Bill No. 7792, Two Hundred Thirty-Fifth Legislative Session (2012).

13. Id.

14. Id.

15. Id.

16. 2012 N.Y. Slip Op. 04277 (June 5, 2012).

17. Id. at *1.

18. Id. at *7.

19. Id. at *5.

20. AFSCME Council 79, No. 11-civ-21976-UU, 2012 WL 1449644, at *3 (S.D. Fl. Apr. 26, 2012). The court did not reach the issue of whether prospective employees can be subjected to drug testing pursuant to the EO. Id. at *37.

21. The cases are Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989), Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989), Vernonia Sch. Dist. 47j v. Acton, 515 U.S. 646 (1995), and Chandler v. Miller, 520 U.S. 305 (1997).

22. Id. at *16. Mandatory drug testing for safety-sensitive jobs is constitutional. See e.g., Skinner, 489 at 628 (1989) (holding that drug testing of railroad employees was justified because of the potential hazards involved in railroad operations), Nat’l Treasury, 489 at 668-69 (1989) (permitting drug testing of U.S. Customs officials because they are directly involved with drug interdiction). Governor Scott’s EO applied to both safety sensitive and non-safety sensitive jobs.

23. Id. at *33.

24. Id. at *21.

25. Id. at *33 (“The EO does not identify a concrete danger that must be addressed by suspicionless drug-testing of state employees, and the Governor shows no evidence of a drug use problem at the covered agencies.”)

26. Id. at *29.


http://www.nytimes.com/2012/02/25/education/teacher-quality-widely-diffused-nyc-ratings-indicate.html

http://www.nytimes.com/2012/02/25/education/teacher-quality-widely-diffused-nyc-ratings-indicate.html

http://www.edsource.org/today/2012/pioneered-in-california-publishing-teacher-effectiveness-rankings-draws-more-criticism/6732



http://www.nytimes.com/2012/02/23/opinion/for-teachers-shame-is-no-solution.html?_r=1

http://www.nytimes.com/2012/02/23/opinion/for-teachers-shame-is-no-solution.html?_r=1


Co-Edi to r s : A l an M. Kl inger , Co-Manag ing Par tne r , and Dina Kolker , Spec i a l Counse l in S t roock ’ s L i t i ga t ion and Government Re la t ions Prac t i ce Groups . The Co-Edi tor s wi sh to thank Beth A. Nor ton, Ker ry T. Cooperman, Lee M. Lev i te r , and J a son S . V inokur , a s soc i a te s in S t roock ’ s L i t i ga t ion and Government Re la t ions Prac t i ce Groups , whose cont r i but ions to r e sea rch ing and wr i t ing the a r t i c l e s in th i s i s sue were inva luab le .

State Court Appellate Division: Health and Hospital

Employees Have No Standing to Sue under Health and

Safety Regulations

Summer 2012

Introduction

The Appellate Division, First Department has ruled that public employees may be deprived of the opportunity to file a lawsuit in the courts to protect either their own health, safety and welfare.1 In that case, Roberts v. Health and Hospitals Corp, 87 A.D.3d 311 (1st Dept., 2011), three groups of petitioners (elected officials, labor union representatives and union members) asserted that the decision of the Health and Hospitals Corp. (“HHC”) to abolish several trade positions (including electricians, carpenters and laborers) would create unsafe conditions for patients and staff members who remain employed at the affected facilities and thereby violates HHC’s statutory obligation to maintain its facilities in a safe condition.

The First Department held that petitioners lacked standing to challenge the purported violations. More troubling is that in reaching this conclusion, the Court found that because the Legislature gave HHC discretion to determine non-managerial staffing levels, “HHC’s decisions regarding staffing levels are beyond judicial review.”2 Such a broad statement threatens to immunize government action from judicial review,

essentially preventing employees from challenging the determinations of administrative agencies, public bodies or officers, as currently permitted by Article 78 of the CPLR.

This article analyzes problems caused by the Roberts decision and suggests ways to limit its impact.

Standing

Standing – whether the party asserting a claim has the right to do so – is a threshold matter that typically is considered at the outset of any litigation. If a litigant has standing, they have access to the courts to adjudicate the merits of their dispute. Without standing, they do not.

New York courts have established a two-part test to determine whether a party has standing to challenge a governmental action. First, the petitioner must demonstrate “injury in fact,” meaning that he or she “will actually be harmed by the challenged administrative action.”3 Such injury must be personal to the party challenging the action. It must be “distinct from that of the general public.”4 Second, the injury must fall within the “zone of interests” promoted or protected by the


statutory provision under which the agency has acted.5 The “zone of interests” analysis limits the persons who may challenge an administrative action to those whose concerns the Legislature sought to advance or protect.6 This second prong of the standing test is designed to ensure “that groups whose interests are only marginally related to, or even inconsistent with, the purposes of the statute cannot use the courts to further their own purposes at the expense of the statutory purposes.”7

In Roberts, respondent HHC specifically challenged the standing of union petitioners. The First Department found that petitioners failed to satisfy either prong of the standing test. With regard to “injury in fact,” the Court found that petitioners’ claims of “imminent” risk from “smoke, fire, bacterial, toxic and structural hazards,” was too speculative to constitute actual injury. Petitioners’ claims, the Court said, asserted only threatened violations of the Public Health Law; they did not reflect actual violations. Moreover, the asserted injury to employees who remained in the affected facilities was not distinct from that of the public at large who utilize the HHC facilities.

As for the “zone of interest,” the First Department determined that employees were not the target audience, by applying a constricted reading of the regulations cited by petitioners. The Court stated that “[a]ny benefits the HHC staff derives from those regulations are incidental.” The Court pointed to regulations requiring that hospitals “be operated and maintained to ensure the safety of patients” (10 NYCRR 405.24), and regulations requiring that the ventilation systems “provide for patient or resident health and comfort” (10 NYCRR 702.1(d)(1)). The First Department contended the HHC employees were not protected by those regulatory provisions because they do not specifically mention the HHC employees. In reaching this conclusion, the First Department dismissed the relevance of other safety

and maintenance regulations that do not mention patients or staff, by concluding that such regulations were not promulgated for the benefit of the staff.

The First Department’s reasoning, particularly as it concerns the “zone of interest,” stands in stark contrast to some of its own recent decisions also in the public employment context. In Mulgrew v. Board of Education, 75 AD3d 412 (1st Dept. 2010), the First Department found that the United Federation of Teachers (“UFT”) had standing to challenge government action, specifically the closing of schools, under the Education Law, not only because certain of its members (chapter leaders) were mentioned in the law in question, but also because

…those UFT members who are employed at the schools proposed to be phased out have an interest in the matter that would give them standing to sue. Further, the interests involved – school closure and the integrity of the school closure process – are germane to the UFT’s organizational purpose, thereby making the union an appropriate representative of those interests.8

Just as the Education Law is primarily aimed at

educating students, so are the HHC statute and related health and safety provisions primarily aimed at ensuring the safety of patients. As demonstrated in Mulgrew, however, the “zone of interest” concept can and should be broader than the primary beneficiary of the law. It remains to be seen whether the First Department’s narrow interpretation in Roberts signals a change in the Court’s interpretation of standing precedent or whether it is an anomaly, specific to the facts in Roberts, particularly as the Court of Appeals has declined to resolve the apparent inconsistency at this point in time.

21


Justiciability

Although the First Department could have ended its analysis of the case with standing, it chose to opine in dicta on whether HHC’s staffing decisions presented a justiciable controversy – that is, is this a matter appropriate for the courts to decide? After engaging in a lengthy discussion of the separation of powers, the First Department concluded that HHC’s decisions regarding staffing levels are beyond judicial review because there exists no statute or regulation that requires HHC to employ a specific level of maintenance staff. The Court held that “neither the petitioners nor the courts should be permitted to substitute their judgment for the discretionary management of public business by public officials.”9

The decision in Roberts marks a departure from well-established New York law on the issue of justiciabililty. As the First Department noted in Freidus v. Guggenheimer, 57 AD2d 760, 761 (1st Dept. 1977) (citing Mandel v. Bd. of Regents, 250 NY 173, 176 (1928)), “[d]iscretionary power is not absolute; it is subject to the limitation that it cannot be exercised arbitrarily.”

Indeed, one of the stated statutory purposes of Article 78 of the CPLR is to determine whether the discretionary actions of government are arbitrary and capricious. CPLR 7803(3). The Legislature has struck the balance between the executive and judicial branches by providing for deferential but substantial judicial review of discretionary acts. Not only are such questions thus justiciable, but the appropriate standard of review is black letter law; a court will not disturb discretionary acts of government unless they are arbitrary, capricious or an abuse of discretion. Pell v. Bd. of Educ., 34 NY2d 222, 232 (1974). This affords those adversely impacted by governmental acts the opportunity to seek relief in a court of law.

Looking Ahead

It is unclear how courts will interpret Roberts and whether it will be allowed to overturn decades of established precedent. The admonition by the First Department that the court should not substitute its judgment for that of the agency is not a reason to abstain from review of discretionary acts. Rather, it should serve to caution future courts as to the proper application of Article 78 review. This is particularly true where the issue is one of health and safety. The Taylor Law itself recognizes that such issues require a balance and that management prerogative must bend to negotiation when management’s discretionary acts translate into health and safety concerns for public employees. Unions should be on the lookout for the right case, particularly in the area of health and safety, to take back up to the First Department or the Court of Appeals so as to clarify that it is permissible for courts to review the discretionary acts of government.


Alan M. Klinger 212.806.5818 [email protected] 1. Petitioners sought leave from the Court of Appeals for

permission to appeal the First Department’s decision. The Court of Appeals has now denied leave.

2. Roberts, 87 A.D.3d at 322.

3. New York State Assn. of Nurse Anesthetists v. Novello, 2 NY3d 207, 211 (2004).

4. Matter of Transactive Corp. v. New York State Dept. of Social Servs., 92 NY2d 579, 587 (1998).

5. Novello, 2 NY3d at 211. Unions are often unincorporated associations. As such, standing is found where there is a harmful effect on at least one member and the “zone of interests” must be germane to its purpose.

22




23

6. Soc’y of Plastics Indust., Inc. v. Cty. Of Suffolk, 77 NY2d 761, 773-74 (1991).

7. Id. at 774.

8. Id. at 413.

9. Roberts, 87 A.D.3d at 323.



Negotiating “No-Layoff” Clauses in the Aftermath of

Johnson City Professional Firefighters Local 921 v.

Village of Johnson City

Summer 2012

Introduction

The New York Court of Appeals recently handed down a decision that should cause both public and private sector unions to take a hard look at their collective bargaining agreements. Divided 4-3, the Court in Johnson City Professional Firefighters Local 921 v. Village of Johnson City ruled that a clause stating that “[t]he Village shall not lay-off any member of the bargaining unit during the term of this contract” was not arbitrable because it did not explicitly prohibit the Village from laying off firefighters due to budgetary strain.1 In a departure from its past decisions concerning the arbitrability of labor disputes, the Court declared that the power of municipalities to terminate workers must be shielded from the “whim of arbitrators” and the “routine[] challenge[s]” of employees. In no uncertain terms, the Court concluded that a dispute over a no-layoff agreement should not reach an arbitrator unless the parties have explicitly spelled out the circumstances in which layoffs are proscribed.

This decision marks an important shift in how

New York courts treat no-layoff clauses and, perhaps, other collectively bargained provisions that restrict the employer’s authority to manage business costs. For decades, the Court had reiterated that (i) agreed-upon job security provisions are in the interest of public policy if explicit, unambiguous, and comprehensive; and (ii) arbitration, without judicial interference, is a favored means for resolving disputes concerning these provisions.2 In ruling that “layoff” is an ambiguous term that renders a job security clause non-arbitrable, the Court in Village of Johnson City altered the guideposts for the negotiation of no-layoff language in CBAs.

The lesson for unions is clear: a job-security provision will protect employees only to the extent it defines the scope of the agreed-upon protections.

How Village of Johnson City Raises the Bar for Enforcement of “No Layoff” Clauses

In May 2008, the Village of Johnson City (the “Village”) and the Johnson City Professional Fire Fighters (the “Union”) executed a CBA, to remain


in effect through May 2011, stating that:

A. The Village shall not lay-off any member of the bargaining unit during the term of this contract. B. The Village shall not be required to ‘back fill’ hire additional members to meet staffing level of expired agreement.

The parties agreed that they would resolve all disputes “involving the interpretation or application of any [CBA] provisions” through binding arbitration.

One year after executing the CBA, citing economic distress, the Village abolished six firefighter positions. The Union filed a grievance with the Village pursuant to the no-layoff clause. When the Village denied the grievance, the Union demanded arbitration.

The Village asked the Supreme Court (Broome County) to permanently stay the arbitration, arguing that a restriction on the Village’s right to abolish firefighter positions – the very restriction to which the parties agreed in the CBA – was void as against public policy. In turn, the Union sought to enjoin elimination of the firefighter positions pending the arbitrator’s decision.

Relying on well-settled precedent, the Supreme Court ordered the parties to arbitrate.3 In a unanimous decision, the Appellate Division, Third Department, affirmed. It laid out the traditional two-prong arbitrability test:

(i) Is there a public policy, statutory, or constitutional prohibition against arbitration of the grievance?; and (ii) If not, did the parties agree to arbitrate?

Applying the first prong, the Third Department explained that a “public employer does not violate public policy by voluntarily including a reasonable job security provision in a CBA.”4 It found the

no-layoff clause to be reasonable because its duration was brief (three years), the parties enjoyed equal bargaining power, and the CBA was not negotiated during a financial emergency. The court added that public policy restrictions on arbitration are “rare” and “almost invariably” involve a nondelegable constitutional or statutory duty, which was not present. The court restated the Court of Appeals’ longstanding rule that arbitration should not be stayed absent a “plain and clear” public policy restriction, statute, or controlling case barring arbitration. Applying the second prong, the court explained that, in light of the “broad” scope of the parties’ arbitration clause, it was limited to determining whether there was a reasonable relationship between the subject matter of the dispute and that of the CBA. That test was easily met.

In an opinion decidedly favoring public employers, a narrow majority of the Court of Appeals reversed.5 The majority did not even reach prong two of the arbitrability test, concluding as a threshold matter that the no-layoff clause was not explicit, unambiguous and comprehensive and, accordingly, was unenforceable as against public policy. Before a municipality relinquishes its right to lay off employees “for budgetary, economic or other reasons,” the Court said, the parties must “explicitly agree” that this will occur and the scope of the agreement must “evidence that intent.”

The no-layoff provision failed this test, according to the majority, because, although it prohibited “layoffs,” it did not explicitly prohibit elimination of firefighters out of budgetary necessity. The Court, while acknowledging that the no-layoff provision may, in fact, have encompassed this precise prohibition and that the parties had expressly agreed to arbitrate all disputes involving “any” CBA provision, determined that because “layoff” is “ambigu[ous],” “narrow and limited,” and “open to different and reasonable interpretations,” allowing arbitration would

25


improperly subject the Village’s layoff authority to “the whim” of an arbitrator.6

In reaching its determination, the Court examined two of its prior cases, both decided in 1976. In Yonkers School Crossing Guard Union v. City of Yonkers, the Court found that a CBA provision stating that “[p]resent members may be removed for cause but will not be removed as a result of Post elimination” was ambiguous and, thus, nonarbitrable.7 By contrast, in Board of Education of Yonkers City School District v. Yonkers Federation of Teachers, the Court found arbitrable a CBA provision stating that “[d]uring the life of this contract no person in this bargaining unit shall be terminated due to budgetary reasons or abolition of programs but only for unsatisfactory job performance as provided for under the Tenure Law.”8 The Court explained that the clause in Yonkers Federation of Teachers was “explicit in its protection of the [workers] from abolition of their positions due to budgetary stringencies.” Because the no-layoff clause in Village of Johnson City lacked the “due to budgetary reasons” language highlighted in Yonkers Federation of Teachers, the Village of Johnson City majority concluded that the former was unenforceable. The Court did not acknowledge its subsequent opinions pertaining to this issue.9

Village of Johnson City Tips the Scales in Favor of Employers’ Rights

More than three decades ago, the Court of Appeals declared that a CBA provision guaranteeing public employees job security for a reasonable period of time does not violate public policy.10 In fact, that Court extolled the public-policy virtues of such a provision, explaining that it “insures that, at least for the duration of the agreement, the employee need not fear being put out of a job.”11 The absence of such fear, said the Court, “may be critical to the maintenance and

efficiency of public employment . . . .”12 New York courts have long encouraged arbitration of labor disputes and, accordingly, have tended to uphold broad CBA arbitration provisions.13

The holding in Village of Johnson City that the CBA clause prohibiting “layoff[s]” is nonarbitrable relies on two main conclusions that are, at the least, subject to reasonable disagreement. The first conclusion is that the term “layoff” is, at once, too “narrow and limited” and too “open [and] . . . ambigu[ous]” to explicitly cover job loss due to economic distress. The second is that it was the role of the court – not the role of the agreed-upon arbitration mechanism – to determine the scope of the CBA’s job security protections.

A. The Meaning of “Layoff”

The logic of Village of Johnson City regarding the meaning of “layoff” is flawed. Most statutes, regulations, judicial opinions (and dictionaries) express a contrary view to that expressed by the narrow majority of the Court of Appeals. The general consensus of these authorities is that “layoff” encompasses job loss resulting from lack of money, lack of work, or other circumstances unrelated to the employee’s performance or conduct.

Adopting this view, one New York court explained that “lay-off” is:

separation due to conditions prohibiting the employer from providing work for the employee. For instance, a medical center may have reduction in the number of patients or a budget cut, forcing it to reduce its services . . . In turn, the employer will have to reduce its work force.14

Southern District of New York Judge Kevin

Duffy similarly found that “layoff,” though not defined in the collective bargaining agreement at issue in that case, referred to unemployment

26


“resulting from a slowdown in the operation of the plant or some such similar occurrence,”15 and the Second Circuit Court of Appeals stated that a layoff occurs when employees’ “jobs were no longer necessary.”16 New York courts addressing unemployment insurance disputes have also addressed the meaning of “layoff.” Those cases conclude that a “layoff,” as distinguished from a discharge or voluntary employment termination, encompasses job loss resulting from a “decrease in the volume of business,” a “lack of work for laborers,” or other “economic causes.”17

No New York statute or regulation defines “layoff,” but other jurisdictions’ statutes, regulations, and rules reinforce its plain meaning. California’s Labor Code defines layoff as “a separation from a position for lack of funds or lack of work.”18 Florida’s public-employees statute defines it as “termination of employment due to a shortage of funds or work, or a material change in the duties or organization of an agency . . . .”19 Louisiana’s civil service rules define it as the “separation of an employee from a position because of a lack of work or a lack of funds or the abolition of a position.”20 New Hampshire defines it as “the complete separation of an employee from the state classified service for an indefinite period by reason of abolition of position, change in organization, lack of work, insufficient funds, or other reasons outside the employee’s control . . . .”21 Either expressly or by reasonable implication, the legal definitions of “layoff” encompass job loss result from economic distress.

Other important definitions of “layoff” further contradict the Court’s finding that the word is too “narrow and limited” to encompass the abolishment of employee positions. Black’s Law Dictionary, for example, broadly defines it as “[t]he termination of employment at the employer’s instigation; esp., the termination—either temporary or permanent—of many employees in a short time.”22 Roberts’ Dictionary of Industrial Relations defines it as “temporary or indefinite separation

from employment.”23 West Virginia defines it as “any involuntary cessation of an employee for a reason not relating to the quality of the employee’s performance or other employee-related reason.”24

The majority opinion in Village of Johnson City acknowledges that, whether or not explicit in its coverage of economic-based layoffs, the no-layoff clause unambiguously constituted a “job security clause.” This is consistent with Burke v. Bowen, where the Court of Appeals found that a “job security” clause – providing that “in no event shall the presently agreed upon minimum [number of firefighters] be readjusted downward” – was “explicit” and “violate[d] no public policy,” even though it did not explicitly refer to protections against staff reductions due to fiscal strain.25 The dissenting judges in Village of Johnson City thus point out that a “plain reading” of the no-layoff clause shows that the Union “negotiated to ensure that its constituents need not fear being put out of their firefighting jobs during the life of the CBA” and that the parties used “layoff” to “succinctly but thoroughly address the threat of job insecurity.” They further observe that “‘layoff’ pervades the public dialogue” and “typically signif[ies] the kind of large scale public and private workforce reductions that have characterized recent economic crises.” In their view, “a job security clause need not specifically reference protection against reductions due to fiscal strain to be enforceable.”

But an explicit and unambiguous reference to job security was not enough for the Village of Johnson City majority to deem the clause explicit and unambiguous. Instead, the Court highlighted the parties’ disagreement over whether “layoff” constituted “permanent or nonpermanent job loss,”26 even though the no-layoff provision in Yonkers Federation of Teachers – which the Court upheld as explicit, unambiguous, and comprehensive – similarly prohibited “terminat[ion]” of employees without specifying whether “termination” refers to permanent or temporary job loss.27

27


Like “layoff,” “termination” can refer to “either” type of job loss.28 Moreover, whether the firefighter layoffs in Village of Johnson City were permanent was not the subject of the Union’s grievance or the subsequent litigation. Thus, there is good reason to criticize the Court’s conclusion that the job security clause at issue in Village of Johnson City is ambiguous and limited.

B. The Preference for Arbitration

The Village of Johnson City majority raises a second important question: Even if the term “layoff” is unspecific as to what it covers, should the parties’ dispute have been blocked from arbitration? Both the Taylor Law and New York’s Civil Practice Law and Rules authorize public sector parties, including those in Village of Johnson City, to arbitrate labor disputes arising from their CBA.29 These laws reflect the Legislature’s policy of encouraging arbitration “as a means of promoting harmonious relations between governmental employers and their employees, and preventing labor strife endangering uninterrupted governmental operations.”30 The Court of Appeals has thus expressed a general “policy of noninterference” in labor arbitration, explaining:

Our courts . . . favor . . . a policy supporting arbitration and discouraging judicial interference with either the process or its outcome . . . . Under our modern arbitration jurisprudence, judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships, and the correlative, expansive power of arbitrators to fashion fair determinations of the parties’ rights and remedies.31

Section 7501 of New York’s CPLR further

provides that courts shall not “consider whether the

claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.” “The merits are for the arbitrator to decide.”32 Thus, unless there is a “substantial question” about whether the parties reached a valid agreement to arbitrate, or the claim sought to be arbitrated is barred by a statute of limitations, “the court shall direct the parties to arbitrate.”33

The United States Supreme Court has similarly recognized the strong public policy in favor of labor arbitration and judicial restraint, stating that arbitration is “part and parcel of the collective bargaining process itself.”34

An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. . . . In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where . . . the exclusion arbitration clause [is] quite broad. Since any attempt by a court to infer such purpose necessarily comprehends the merits, the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement . . . when the alternative is to utilize the services of an arbitrator.35

As Justice Douglas observed, arbitrators are

specially positioned to resolve labor disputes because they are mutually selected by the employer and the union due to their expertise and insight into the parties’ relationships and bargaining conditions.36 The parties “trust in [the arbitrator’s] personal judgment to bring to bear considerations which are not expressed in the contract . . . . The ablest judge cannot be expected to bring the same

28


experience and competence to bear upon the determination of a grievance . . . .”37

For these reasons, the Court of Appeals had rarely invoked public policy to deem nonarbitrable an otherwise arbitrable CBA dispute. Indeed, it had declared that judicial restraint is “particularly appropriate in arbitrations pursuant to public employment collective bargaining agreements” because arbitration plays a “critical role” in “stabilizing labor relations.”38 The Court added that:

While some case records contain enough information for a court to make a penetrating analysis of the scope of the substantive provisions of the CBA, an undertaking of that kind is not the function of the court. A judicial inquiry of that sort would involve an inapt flirtation with the merits, or an inappropriate use of the judicial scalpel to split the hairs that mark the perimeters of contractual provisions.39

The Village of Johnson City majority moves in the opposite direction. It bases its holding on purported public policy shielding employers’ termination decisions from “the whim” of the arbitrator. Yet even in cases where a job security provision does not explicitly refer to economic distress, courts have affirmed that arbitration was appropriate. In Whitney Point Cent. Sch. Dist. v. Whitney Point Teachers’ Assoc., for example, the parties’ CBA provided that:

All conditions of employment shall be maintained at not less than the highest minimum standards in effect in the District at the time this Agreement is signed provided that such conditions shall contribute to the improvement of the general educational program.40

As in Village of Johnson City, the CBA provided for binding arbitration of disputes concerning the “interpretation or application” of a CBA provision.

Due to “economic problems confronting the [school] district,” three full-time teaching positions were converted to half-time positions with a corresponding decrease in salary, causing the teachers’ union to demand arbitration. The Third Department ruled, in relevant part, that the dispute was arbitrable and that “school boards must realize what the effect of clauses in contracts entails as applicable to possible future conditions.”

The dissenting judges in Village of Johnson City conclude not only that the majority is in error, but that the Court should consider modifying its jurisprudence to a “more flexible approach” befitting the “continually evolving” nature of public policy determinations.41 Bright-line rules, according to the dissent, are not suited to public policy decisions because those entrusted with implementation of public policy “must respond to everchanging [sic] demands.” These demands require evaluation of no-layoff clauses “not in a vacuum but with an eye toward the social and economic realities in which the parties who are subject to the CBA live and operate.”42 Although the post-2008 economic reality is that employers are experiencing budget shortfalls that force them to make deep cuts, the Court of Appeals ruled many years ago that “[a] job security clause is useless if the public employer is free to disregard it when it is first needed,” i.e., in hard economic times.43 A public employer “may not because of financial difficulties unilaterally abrogate a collective bargaining agreement.”44 Thus, the Court of Appeals has stated that “the financial condition of the city and its ability to fund . . . positions” are “relevant” considerations for the arbitrator, not for determining arbitrability.45

Guidance for Union Representatives Negotiating “No Layoff” Clauses

Whether right or wrong, Village of Johnson City reflects the current law of this state. As such, it

29


should cause unions whose CBAs are subject to New York law to reexamine their existing job security clauses and to use care in negotiating future ones. Village of Johnson City warns parties that a no-layoff clause will be enforceable only to the extent it details the circumstances in which layoffs are prohibited.

In future collective bargaining for a job security provision, unions should take the following steps to increase the likelihood that the provision will be enforceable:

• Treat (i) the reasons for which the employer is prohibited from laying off employees, and (ii) the employees protected by the provision;

• Ensure that the duration of the no-layoff protection is reasonable;

• If using the word “layoff,” “termination,” “reduction in force,” or similar language in the no-layoff provision, specify whether that term refers to temporary or permanent job loss; and

• Be conscious of the surrounding fiscal conditions at the time the agreement is reached. For example, if, in times of economic stress, a no-layoff clause is being secured in return for contractual give-backs, make sure that such quid pro quo arrangement is specified in the CBA and that, if relevant, legislative (or other regulatory) approval is obtained.


Alan M. Klinger 212.806.5818 [email protected] 1. 18 N.Y.3d 32, 36-38 (2011) (“Village of Johnson City”).

2. See Bd. of Educ. of Yonkers City Sch. Dist. v. Yonkers Fed’n of Teachers, 40 N.Y.2d 268, 274-75 (1976) (“Yonkers Fed’n of Teachers”); Yonkers Sch. Crossing Guard Union of Westchester Ch., CSEA v. City of Yonkers, 39 N.Y.2d 964, 965 (1976) (“Crossing Guard Union”); In re Board of

Educ. of Watertown City School Dist., 93 N.Y.2d 132, 141 (1999); Hardin & Higgins, Jr., The Developing Labor Law, Vol. 1, at 1 (BNA 2001).

3. In re: Johnson City Professional Firefighters Local 921, 72 A.D.3d 1235, 1236 (2010).

4. Id. at 1237 (internal citation omitted).

5. Village of Johnson City, 18 N.Y.3d at 38.

6. Id. at 37-38.

7. 39 N.Y.2d at 965.

8. 40 N.Y.2d at 275-76.

9. See, e.g., Whitney Point Cent. Sch. Dist. v. Whitney Point Teachers’ Assoc., 55 A.D.2d 439 (3d Dep’t 1977).

10. Yonkers Fed’n of Teachers, 40 N.Y.2d at 271.

11. Id. at 275.

12. Id.

13. See, e.g., New York City Transit Auth. v. Transport Workers Union of Am., Local 100, AFL-CIO, 99 N.Y.2d 1, 6-7 (2002).

14. Wolkstein v. Beth Israel Med. Ctr., 103 Misc.2d 1095, 1097 (Civ. Ct. N.Y. Cnty. 1980).

15. United Rubber, Cork, Linoleum and Plastic Workers of Am., AFL-CIO v. Great American Indus., Inc., 479 F. Supp. 216, 231 (S.D.N.Y. 1970).

16. CBS Inc. v. Int’l Photographers, Local 644, 603 F.2d 1061, 1064 (2d Cir. 1979).

17. See In re Napolitano, 264 A.D.2d 928 (3d Dep’t 1999); Claim of Pelkey, 180 A.D.2d 995, 995-96 (3d Dep’t 1992); State Farm Mut. Auto. Ins. Cos. v. Brooks, 78 A.D.2d 456, 457 (4th Dep’t 1981); In re: Miranda’s Claim, 13 A.D.2d 571, 573 (1961).

18. CAL. LAB. CODE, § 1400(c).

19. FLORIDA STAT., § 110.107(23).

20. LA. CIV. SERV. R. § 1.19.

21. N.H. ADMIN. RULES, Per § 102.34.

22. BLACK’S LAW DICTIONARY (9th ed. 2009).

23. ROBERTS’ DICT. OF INDUS. RELATIONS (3d ed. 1986).

24. W. VA. CODE ST. R. § 42-5-2.10.

25. Burke v. Bowen, 40 N.Y.2d 264-267 (1976).

26. Id. at 38 (majority opinion).

27. See Yonkers Fed’n of Teachers, 40 N.Y.2d at 275-76.

28. See supra at note 22.

29. N.Y. CIVIL SERVICE LAW § 209(2); N.Y. CPLR § 7501.

30. New York City Transit Auth., 99 N.Y.2d at 7.

30



31

31. Matter of Sprinzen, 46 N.Y.2d 623, 629 (1979); New York City Transit Auth., 99 N.Y.2d at 6-7.


33. N.Y. CPLR § 7503 (emphasis added).

34. United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578 (1960).

35. Id. at 582-85.

36. Id. at 582.

37. Id.

38. New York City Transit Auth., 99 N.Y.2d at 7-8 (emphasis added).

39. Watertown City School Dist., 93 N.Y.2d at 142.

40. 55 A.D.2d 439, 440 (3d Dep’t 1977).

41. Village of Johnson City, 18 N.Y.3d at 40-41 (Ciparick, J., dissenting) (internal quotation omitted).

42. Id.


44. Piro v. Bowen, 76 A.D.2d 392, 399 (2d Dep’t 1980).



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the taylor law (particularly the triborough amendment provision) expires on july 1st. what should...

Economy & Finance

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new hires

new yorktimes

taylor lawrequires

city workers

protectingthe public

public sectorworkers

taylor laws compulsory