June 15, 2011

Limitations on collective bargaining under the Taylor Law

Limitations on collective bargaining under the Taylor Law
City of New York v Uniformed Fire Officers Asso. App. Div., First Dept., 263 AD2d 3, Affirmed, 95 NY2d 273

Sometimes an investigation into criminal activities by a governmental agency is claimed to have violated the rights of employees in a negotiating unit set out in a collective bargaining agreement. Do the employee's rights under negotiated agreement's provisions trump the procedures being employed by the investigating body?

This was one of the critical issues in the Uniformed Fire Officers Association case. The conclusion of the Appellate Division: parties to a collective bargaining agreement may not limit the powers or authority vested in a governmental agency not a party to the agreement.

The other significant issue: which is the employer for the purposes of negotiating and administering a collective bargaining agreement with a city department -- the city or its constituent department? Here the Appellate Division concluded that the City of New York was not the employer insofar as a collective bargaining agreement between a union and the New York City Fire Department was concerned.

New York City's Department of Investigation (DOI) was conducting criminal investigations involving New York City Fire Department personnel. One investigation focused on allegations that firefighters had attempted to obtain greater pension benefits by falsely claiming that he or she had suffered a disabling injury while on duty.

According to the opinion of the Appellate Division, the alleged “scheme” involved one firefighter calling in a false alarm to give a second firefighter, who had suffered an injury that was not work related, an opportunity to claim that the injury was, in fact, sustained while he or she was responding to the alarm.

DOI's investigation included interviewing members of Uniformed Fire Officers Association, Local 854 [union], who were questioned pursuant to subpoena. The union filed a grievance contending that DOI had violated terms and conditions of its collective bargaining agreement with the New York Fire Department. It demanded arbitration, contending that the interviews with its members were conducted in violation of the employee rights under its Taylor Law contract.

The union's theory ran as follows:

DOI was a City agency. Since the City was the employer, DOI was bound by the terms of the collective bargaining agreement it had negotiated with the City's Fire Department.

The union charged that DOI investigators violated the collective bargaining agreement when it did not provide its members with the contractual protections it had negotiated such as:

1. Giving the unit member prior written notice of the matter being investigated;

2. Providing unit members with the statement of “Miranda” type rights set out in the Taylor Law contract;

3. Although the unit member could be represented by an attorney, he or she was not permitted to have a union representative present; and

4. The unit members were not given “use immunity” with respect to any information DOI obtained in a subsequent criminal proceedings.

The City contested the arbitrability of the dispute before the City's Office of Collective Bargaining [OCB], arguing that it never agreed to arbitrate the procedures used by DOI. OCB was not persuaded and issued a determination, Decision No. 46-97, holding that the dispute was arbitrable.

The City objected and filed a petition in State Supreme Court seeking to have OCB's determination annulled. It contended that:

1. A collective bargaining agreement cannot, as a matter of public policy, supplant or impair DOI's investigatory procedures; and
2. Public policy considerations prohibit the negotiation of the DOI's criminal investigation procedures.

Justice Harold Tompkins agreed and vacated OCB's order. The union appealed.

The Appellate Division commenced its review by noting that “[n]ormally, a party to a valid arbitration agreement is required to submit to arbitration and to defer any challenge to the proceeding until an award is rendered, either by way of an application to vacate the award or in opposition to an application to confirm the award.”

Where, however, a statute, court rulings or public policy considerations preclude arbitration, the question of whether the dispute is within the scope of the arbitration provision is not reached.

Here, said the court, public policy and decisional law prohibit any interference with the authority of DOI to require a public employee to answer questions regarding activities that bear upon the performance of his or her official actions.

Accordingly, the extent to which provisions of a collective bargaining agreement apply to interviews conducted by the DOI is not an issue that may be submitted to arbitration.

The Appellate Division said that the union's theory that the City of New York was the “employer” insofar as its bargaining agreement with the Fire Department was concerned was incorrect.

According to the decision “while the Fire Department may bargain away certain of its own management prerogatives in reaching a labor accord with the Uniformed Fire Officers Association, it has no power to defeat or impair rights conferred upon another City agency by statute.”

In other words, the Fire Department, rather than the City of New York, was the “employer” for the purposes of negotiating and enforcing the collective bargaining agreement under the Taylor Law.

The union conceded that the employee rights provision of its labor contract should not be read to restrict investigations into the activities of union members that are conducted by the New York City Police Department, another City agency.

According to the Appellate Division's decision, Section 803(b) of the City Charter assigns broad duties to DOI to investigate “the affairs, functions, accounts, methods, personnel or efficiency of any agency.”

The court said that adopting the union's position would impermissibly compromise DOI's authority by limiting its examination of witnesses by the terms of the collective bargaining agreement between the union and the Fire Department.

The Appellate Division concluded that because DOI's prerogative to employ such investigative procedures as it deems appropriate may not be bargained away, there is no reason to submit to arbitration the question of whether the employee rights provisions of the union's collective bargaining agreement are binding upon the DOI.

The court affirmed Justice Tompkins' order annulling OCB determination directing the union and the City arbitrate their dispute over whether their collective bargaining agreement governs the DOI's investigatory procedures.

When the appeal reached the Court of Appeals, it sustained the Appellate Division’s determination.


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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