Matter of City of New York v Uniformed Firefighters Assn., Local 94 IAFF, AFL-CIO

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Matter of City of New York v Uniformed Firefighters Assn., Local 94 IAFF, AFL-CIO 2018 NY Slip Op 30453(U) March 14, 2018 Supreme Court, New York County Docket Number: 450703/2017 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 03/15/2018 01:00 PM 1] NYSCEF DOC. NO. 36 INDEX NO. 450703/2017 RECEIVED NYSCEF: 03/15/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 32 ------------------------------------------------------------------------ )( In the Matter of the Application of THE CITY OF NEW YORK; THE FIRE DEPARTMENT OF THE CITY OF NEW YORK; ROBERT W. LINN_ as. the Commissioner of the New York City Office of Labor Relations; and THE NEW YORK CITY OFFICE OF LABOR RELATIONS, Index No. 450703/2017 Mot~eq Nos. 001, 002 & 003 Petitioners, Decision, Order & Judgment For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, ARLENE P. BLUTH, JSC - againstUNIFORMED FIREFIGHTERS ASSOCIATION, LOCAL 94 IAFF, AFL-CIO; JAMES SLEVIN, as the President of the Uniformed Firefight~rs Association; THE BOARD OF COLLECTIVE BARGAINING OF THE CITY OF NEW YORK; and SUSAN J. P ANEPENTO, as Cliair of the Board of Collective Bargaining, ·Respondents. -----------------------------~--------------------~------------------~-- )( Motion sequence numbers 001, 002 and 003 are consolidated fordisposition. The motion to dismiss (Mot Seq 003) by respondents the Board of Collective Bargaining of the City of New York and its chair, Ms. Panepento, (collectively, "BCB") and the motion to dismiss (Mot Seq 002) by respondents Uniformed Firefighters Association, Local 94 IAFF, AFL-CIO and Mr. Slevin (collectively, "UFA") are granted and this petition (Mot Seq 001) is dismissed. •. Page 1 of 8 2 of 9 [*FILED: NEW YORK COUNTY CLERK 03/15/2018 01:00 PM 2] NYSCEF DOC. NO. 36 INDEX NO. 450703/2017 RECEIVED NYSCEF: 03/15/2018 Background This proceeding asks this Court to consider the differences and potential overlap between discipline and pay in the context of the Fire Department of the City ofNew York ("FDNY"). It is undisputed that discipline falls under the powers of the FDNY Commissioner ("Commissioner"), who has the authority to impose discipline as he sees fit. Pay must be negotiated as part of the collective bargaining process between FDNY employees and the City. The question, then, is whether the FDNY Comll?.issioner has the power to change the formula used to calculate the amount of day's pay for purposes of a dis~iplinary fine. The FDNY has two types of discipline: informal and formal. Informal discipline includes punishments such as reprimands, instruction and Command Discipline. Command Discipline can involve the loss of vacation days or the forfeiture of up to seven days of pay, although the definition of a day's pay is not included in.the FDNY's Personnel Administrative Information Directive. Formal discipline is where the employee refuses to accept Command Discipline or is punished for conduct that is deemed more severe. Before 2013, the value of a day's pay was 1/365 for firefighters, fire marshals, marine wipers, pilots and marine engineers (collectively, "uniformed employees") and 1/261 for all other employees such as FDNY civilian personnel and EMS employees (collectively, "non-uniformed employees"). 1 In 2013, the Commissioner changed the methodology for calculating a day's pay when 'imposing fines so that a fine was 1/261 of the employee's annual salary for all employees. 1 At oral argument, the parties were unable to pinpoint exactly when the formula used to calculate the value ofa day's pay was implemented. But all sides agreed that this ·disparity has existed for many decades. Page 2 of 8 3 of 9 [*FILED: NEW YORK COUNTY CLERK 03/15/2018 01:00 PM 3] NYSCEF DOC. NO. 36 INDEX NO. 450703/2017 RECEIVED NYSCEF: 03/15/2018 Obviously, this had the effect of raising fines for uniformed employees. Respondent Un}formed Firefighters Association filed an improper practice petition with BCB challenging the Fire Commissioner's unilateral change of the value of a day's pay. UFA claims that this change must be a part of the collective bargaining process between UFA and the . ' . City. UFA insisted that because the disciplinary fines affected its members' paychecks, it was related to wages rather than discipline. Petitioners opposed the improper practice petition and claimed that these fines relate to discipline and, therefore, need not be part of the collective bargaining process. On February 16, 201.7, BCB granted UFA' s petition and found that the FDNY violated the New York City Collective Bargaining Law {"NYCCBL") by unilaterally changing the value of a day's pay while the parties collective bargaining agreements were in status· quo. BCB stressed that the value of a day's pay is fundamentally tied to an employee's pay, which is subject to mandatory collective bargaining. BCB moves to dismiss the petition and emphasizes that its decision was rational. BCB observes that the Commissioner's unilateral change to a day's pay was done without any notice to uniformed employees. BCB concludes that the value of a day's pay does·not affect the Commissioner's power to investigate misconduct, decide whether to impose discipline, the type of discipline to impose or how much to fine the employee (assuming the discipline is monetary). UFA also moves to dismiss on similar grounds as BCB' s motion and conte~ds that BCB' s decision was rational. In opposition, petitioners claim that the Commissioner did not change the method by which employees would pay disciplinary fines; rather, the amount of the fines were changed. Page 3 of 8 4 of 9 [*FILED: NEW YORK COUNTY CLERK 03/15/2018 01:00 PM 4] NYSCEF DOC. NO. 36 INDEX NO. 450703/2017 RECEIVED NYSCEF: 03/15/2018 .. · Petitioners insist that the disciplinary authorit~ of the Commissioner is severely limited if he is unable to unilaterally determfoe the dollar vah.ie ofa discipiinary fine, Petitioners also emphasize that t~e reason for chal)gfog the value of a day's pay, "to enstire .internal consistehcy regarding the di~ciplinary pay fine calculation 111ethodology pertaining to all FDNY Employees" {NYSCEF . Doc. No. 31 at 6), demonstrates that this issue is a criticaLpart?fthe Commissioner's responsibility to maintain discipline. Discussion When reviewing an Article . rational basis 7~ petition, "[t]he courts cannot interfere uriless there is no . for the exercise of discre_tion or the action complained of is arbitrary or 9apricious" (Pell v Bd. of Educ. of Union Free Sch. Dist: No. l of Towns ofScarsdale & Mamaroneck, Westchester County, 34 NY2d222,231, 356 NYS2d 833 [1974]). A determination of the Board of Coilective Bargaining\"niay not b~ upset unless it is arbitrary-and capricious or an abuse of .· discre!ion, as the.Board is the neutral adjudicative agency_siatutorily authorized to make. < specified determinations" (New. YotkCity Dept. ofSanitation; .A{acDonald, 87 NY2d 650, 656, 642 NYS2dJ56 [1996]). "An administrativeagehcy's coristructiOn. and interpretation of it's own regulations and of . . . ./ . ··. . . the statute under wJ:iich it functions is entitled to the greatest weight" (Herzogv Joy, 74 AD2d ,. 372, 375, 428 NYS2d 1 [1st Dept l980]). "When an administrative agency is charged with . "' - ~ . _.,, ~ implementing and enforcing the provisions of a particularstafote, the courts will generally defer to the agency's expertise andjudgment regarding that statute" (Dist. Council 3 7 American Fedn. . . .. . ' , ~ '•, o.fState, County& Mun. Empfr, AFl-CIO v City ofNew York,22AD3d 279, 283, 804 NYS2d Page 4 .Of .8. 5 of 9 [*FILED: NEW YORK COUNTY CLERK 03/15/2018 01:00 PM 5] NYSCEF DOC. NO. 36 INDEX NO. 450703/2017 RECEIVED NYSCEF: 03/15/2018 10 [1st Dept 2005]). "A court cannot simply substitute its judgment for that of an administrative agency when th~ agency's determination is reasonable" (id. at 284). "It is well settled that New York's Taylor Law (Civil Service Law§ 200 etseq.) requires collective bargaining over all terms and conditions· of employment. ... In the City of New York, the NYCCBL regulates the conduct oflabor relations between the City and its employees. Consistent with the Taylor Law, the NYCCBL requires public employers and certified or designated employee organizations to bargain in good faith on wages, hours and working conditions" (Roberts v New York City Office of Collective Bargaining, 113 AD3d 97, 101, 976 NYS2d 450 [1st Dept 2013] [citations omitted] [finding that the imposition of a zero tolerance { policy for EMS workers who failed dnig tests was not subject to mandatory collective bargaining]). · "New York has a strong policy of supporting collective bargaining, and a presumption exists that all terms and conditions of employment are subject.to mandatory bargai11ing. This presumption can .be overcome, however, where there exists clear legislative intent to remove an issue from mandatory bargaining" (id. at 101-02). "New York City Charter§ 487(a) gives the Fire Commissioner the 'sole and exclu~ive power' to 'perform all duties for the government, discipline, management, maintenance and direction of the fire department" (id. at 103). The Court of Appeals has found that the key question is whether the disputed action is "inextricably intertwined with th,e Commissioner's authority" to oversee discipline or merely "ancillary or tangential to his disciplinary authority" (see City ofNew York v Patrolmen 's Page 5_of 8 6 of 9 [*FILED: NEW YORK COUNTY CLERK 03/15/2018 01:00 PM 6] INDEX NO. 450703/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 03/15/2018 . . . • Benevolent Assn. of City of New York, Inc., 14 NY3d 46, 59; 897 NYS2d 382 [2009]). 2 NYCCBL § 12-306(a)(4) provides that it is an improper practice for a public employer "to refuse to bargain collectively in good faith on matters within the scope of collective bargaining within certified or designated representatives of its public employees:" The central issue in this proceeding is whether BCB' s determination that the Fire Commissioner's unilateral change in the definition of day's pay relates to wages (rather than disciplinary powers) was rational. Here, the BCB found that "[t]he value of aday's pay is fundamentally tied to an employee's wages" and that "wages are a mandatory subject of bargaining" (NYSCEF Doc. No. 3 at 15). BCB also noted that the methodology used to calculate . ' pay must also be a subject of bargaining (id.). BCB reasoned that "even where there is a management right to take unilateral action, there may be an impact that warrants bargaining under the NYCCBL" (id.). BCB further observed that while the value of a day's pay might impact a Commissioner's decision about a particular fine, "negotiation over that value does not limit the FDNY Commissioner's authority to determine whether to discipline an employee or the penalty" (id.. at 16-17). The Court finds that the BCB decision was rational and, therefore, the petition must be dismissed. The Court acknowledges that there is an cle.ar overlap between the value of a day's pay and the Commissioner's power to discipline. Obviously, if a disciplinary fine is imposed, it will affect an employee's take-home pay. But the value of a day's pay is not inextricably intertwined with disciplinary powers because the Commissioner retains the ability to impose 2 The Court observes that the disciplinary powers of the Fire Commissioner and the Police Commissioner are viewed similarly (see Roberts; 113AD3d at 103 ["FDNY, like the police department, is a quasi- military organization demanding sfrict discipline of its workforce."]). Page 6 of 8 7 of 9 [*FILED: NEW YORK COUNTY CLERK 03/15/2018 01:00 PM 7] NYSCEF DOC. NO. 36 INDEX NO. 450703/2017 RECEIVED NYSCEF: 03/15/2018 whatever discipline he sees. fit in aparticular instance. The Commissioner is not prevented from . . "• ~. imposing severe discipline for conduct that he dee'ms reprehensible. The rationale advanced by petitioriers also suggests that changing the value of a day's pay is merely. ancillary, rather than inextricably intertwined~ to .the Commissioner's disciplinary . powers: Petitioners claim that this change was implemented to ensure consistency between uniformed an_dnon-uniformedemployees- it is not hard _to imagine that non-uniformed employees would be upset with the.disparity in how fines are calculated. While ensuring consistency might make t~e C~mmissioner nior~ popular among non-uniformed employees or pos~ibly boost morale, it does not di~ectlyimpact the Commission~r's power to discipline. The Court also observes that if the Commissioner decided that he wanted to impose equal discipline on uniformed and non::-uniforrned employees, then he could do so fo spite of the difference in the . . value of a day's pay between th~se twO groups by issuing larger fines (by penalizing m~re days) to uniformed employees than to non~uniformed employees. Summary '. To be clear, this Court can only Consider: whether BCB 's justification was rational. The Court cannot make its own dete~iriation and, here,oBCB provided a rational basis for its conclusion that changing. the vahie of a day's pay was not inextricably intertwined with the Commissioner's powerto'discipline.· The Commissioner's ability to impose informal and formal discipline on his employees is'not directly affected by·the value of a day's pay. Jn fact, the <;ommissioner could impose ~quaJ_discipline to uniformed and non..:.uniformed members through the amount of discipline in,-iposed. Page iof 8 8 of 9 [*FILED: NEW YORK COUNTY CLERK 03/15/2018 01:00 PM 8] NYSCEF DOC. NO. 36 Accordingly, INDEX NO. 450703/2017 RECEIVED NYSCEF: 03/15/2018 i~ is hereby ORDERED and ADJUDQED that the motions to dismiss by respondent BCB (Mot Seq 003) and by UFA {Mot Seq 002) are granted, the petition (Mot seq 00 l) is dismissed, and the clerk is directed to enter judgment accordingly. This is th~ Decision, Order and Judgment of the Court. Dated: March 14, 2018 New York, NewYork ARLENE P. BLUTH, JSC HON. ARLENE P. BLm:tBl Page 8 of 8 9 of 9

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