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Union?s right to demand and obtain documents on file with the employer in a grievance procedure does not extend to disciplinary actions

Union?s right to demand and obtain documents on file with the employer in a grievance procedure does not extend to disciplinary actions
Matter of Pfau v Public Empl. Relations Bd., 2009 NY Slip Op 29108, Decided on February 19, 2009, Supreme Court, Albany County

Ann Pfau, as Chief Administrative Judge of the Courts of the Unified Court System of the State of New York (UCS), appealed the New York State Public Employment Relations determination the UCS was guilty of improper practice within the meaning of the Taylor Law as the result of UCS?s refusal to provide certain documents a union demanded in connection with disciplinary action being taken against an employee.

District Council 37 AFSCME, AFL-CIO (DC 37) alleged that UCS?s refusal to comply with the Council's demand for certain documents in connection with the disciplinary action violated Civil Service Law.* Although PERB ultimately rejected some of Council 37's document requests as being overly broad, it determined that USC?s refusal to provide the remaining records to DC 37 violated Civil Service Law §209-a(1)(a) and (d).

State Supreme Court Justice Eugene P. Devine ruled that ?[t]he crucial issue in this case is whether Civil Service Law, Article 14, §200 et seq. [The Taylor Law] entitles unions to the same disclosure in employee disciplinary hearings as the union may demand when filing grievances.?

Justice Devine concluded that contract grievances are very different from disciplinary hearings.
In the words of the court, ?Grievances are an inherent part of union organization or employee participation in unions; disciplinary hearings and union representation in those hearings are not.?

Accordingly, said the court, DC 37 had no authority to intrude on the disciplinary hearing process and cut out a specific collectively bargained for item from the contract. Justice Devine concluded that PERB acted beyond its authority "when it determined to stretch the Taylor Law by extending to the disciplinary hearing process a right that heretofore was only part of the grievance process."

In formulating his ruling, Justice Devine noted the decision by the Appellate Division in Civil Service Employees Ass'n v New York State Public Employee Relations Board, 46 AD3d 1037, but concluded that the decision was not a controlling precedent in this case. The CSEA case, said the court, did not address the issue that the court determined was central to this case -- whether the Taylor Law entitles unions to the same disclosure in employee disciplinary hearings as they enjoy when filing grievances.

Holding that Pfau had met her burden of demonstrating that PERB's determination was "in excess of its jurisdiction, violative of positive statutory requirements, and an abuse of PERB?s discretionary power," Justice Devine vacated and annulled PERB?s decision.

* Sometimes the employee against whom disciplinary charges have been served will attempt to ?subpoena? documents. A New York City schoolteacher served with disciplinary charges pursuant to Section 3020-a of the Education Law served a subpoena duces tecum [produce the documents] on the New York City Board of Education requiring it to produce certain records. Supreme Court granted the Board?s motion to quash the subpoena; the Appellate Division affirmed the Supreme Court's decision. The Appellate Division ruled that Hankin attempted to use the subpoena duces tecum improperly and such a subpoena "may not be used for purposes of discovery or to ascertain the existence of evidence" [Board of Educ. of City of New York v Hankins 294 A.D.2d 360].

Sometimes an individual served with disciplinary charges will demand "a bill of particulars" requiring the appointing authority to set out the charges and specifications filed against the individual in greater detail. Although Education Law Section 3020-a.3c(iii)(C) gives an administrator or teacher the right to demand such a "bill of particulars,? no similar provision is included in Section 75 of the Civil Service Law. In some instances, however, a negotiated disciplinary grievance procedure will allow the employee to demand a "bill of particulars" in accordance with provisions set out in the collective bargaining agreement.

The full text of the Pfau decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29108.htm

Full post as published by New York Public Personnel Law on March 18, 2009 (boomark / email).