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Thursday, January 21, 2010

No right to discovery in a disciplinary procedure unless provided by law or specifically provided by the collective bargaining agreement

No right to discovery in a disciplinary procedure unless provided by law or specifically provided by the collective bargaining agreement
Matter of Pfau v Public Employment Relations Board, 2010 NY Slip Op 00340, Appellate Division, Third Department

The Public Employment Relations Board (PERB) determined that the Unified Court System (UCS) engaged in an improper practice under the Taylor Law (Civil Service Law Article 14) when it refused the prehearing disclosure demands made by an USC employee, Ann Pfau after she was served disciplinary charges.

Supreme Court ultimately vacated and annulled PERB's order. PERB [together with District Council 37, Local 1070 as an “intervener”] appealed.

The Appellate Division sustained the lower court’s ruling, noting that “When PERB acts within areas of its expertise, judicial review of its action is limited” but PERB cannot create rights not contemplated by statute or otherwise act in an arbitrary or irrational fashion.

The court explained:

1. In contrast to disciplinary actions, there is “firm footing” for recognizing the right of an employee organization to obtain information relevant to a potential contractual grievance concerning the interpretation, application or alleged violation of a provision of a collective bargaining agreement.

2. Disciplinary proceedings involve alleged misconduct by an employee and serve a significantly different function than a contract grievance. Although the specifications of alleged misconduct set out in the disciplinary charges must be sufficiently detailed to permit the charged employee to prepare and present a defense “there is no general right to disclosure in a disciplinary proceeding.”*

The Appellate Division noted that although PERB conceded that were the disciplinary proceeding held pursuant to Civil Service Law §75, there would have been no right to prehearing disclosure, it nevertheless determined that the disciplinary procedures set forth in the collective bargaining agreement should be considered as negotiated rather than arising from statutory or regulatory provisions. PERB, said the court, then extended the right to disclosure in contract grievance proceedings to include a right to disclosure in disciplinary proceedings.

The court noted that PERB also decided that “the right to prehearing disclosure would … be relinquished if the employee opted for private representation rather than [representation by] a Union attorney.”

The Appellate Division said considering “the starkly disparate roles of contractual grievances and employer disciplinary proceedings,” PERB’s decision to extend the established right to information in processing contract grievances to employee disciplinary proceedings was arbitrary.

Further, said the court, PERB’s making such disclosure in a disciplinary action contingent upon the employee using "Union counsel rather than private counsel," without evidence that such a result was ever desired or even discussed by any party, “lacks rationality.”

* However an employee's right to disclosure, frequently characterized as a "bill of particulars," may be provided by statute [see Education Law §3020-a 3.c.(iii)].

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