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Monday, February 24, 2014

A showing that a pending arbitration’s award may be rendered ineffectual and there is a likelihood of success is critical to obtaining a preliminary injunction

A showing that a pending arbitration’s award may be rendered ineffectual and there is a likelihood of success is critical to obtaining a preliminary injunction
Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York,2013 NY Slip Op 08033, Appellate Division, First Department

Three members [Petitioners] of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. At the request of the PBA, the Office of Labor Relations (OLR) issued Petitioners Release Time Certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75), which provided for full-time leave with pay and benefits.*

The three Petitioners, however, were subsequently suspended without pay for thirty days pursuant to Civil Service Law §75(3-a) following their indictment by a grand jury in connection with an alleged ticket-fixing scheme. Petitioners were subsequently restored to modified duty. OLR, however, rescinded their Release Time Certificates and offered to issue new Release Time Certificates to three other employees to be chosen by PBA.

PBA rejected the offer and filed a contract grievance. The grievance was denied and PBA filed a demanded for arbitration, contending that the rescission of the Certificates violated the parties' collective bargaining agreement and EO 75.  PBA also filed a petition for a preliminary injunction pursuant to CPLR 7502(c) seeking to have the Petitioner’s Certificates reinstated pending the arbitrator issuing his or her decision and award..

Supreme Court granted the petition, “enjoining respondents from implementing any termination or revocation of ‘Release Time’ leave for the three individual petitioners pending resolution of arbitration proceedings commenced by petitioner Patrolmen's Benevolent Association.”

The Appellate Division vacated the preliminary injunction on appeal in a three to two ruling.**

Noting that CPLR 7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending ... the majority explained such an application may be granted “only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief." Further, said the court, PBA, as the party seeking the preliminary injunction, was required to “demonstrate a probability of success on the merits, danger of irreparable injury in the absence of a preliminary injunction, and a balance of the equities in their favor.”

Applying these standards, and "even assuming that [Petitioner] established that an award in their favor would be rendered ineffectual without provisional relief" as required by CPLR 7502(c), the majority held that PBA “failed to make the requisite showing of a likelihood of success on the merits, and therefore have not established their entitlement to injunctive relief.”

The majority noted that each Release Time certificate stated that it “MAY BE REVOKED, MODIFIED OR CANCELLED” and Petitioners did not suggest any purpose for such language “other than to vest the City with residual authority to rescind a Release Time [Certificate] where warranted.”

Holding that Petitioners' interpretation of EO 75 was not plausible, the majority concluded that Petitioners “have not demonstrated a likelihood of success on the merits,” the Appellate Division granted the appeal.

* With respect to the State as the employer, employee organization leave has been an issue since the adoption of the Taylor Law. In response to demands that State employees elected to a leadership position of an employee organization representing state employees be provided with "paid organization leave," the State agreed to provide for “Employee Organization Leave” and enacted §46 of Chapter 283 of the Laws of 1972 to this end. This law provides that a State employee organization may obtain approval for paid full or part-time leaves of absence of its representatives provided it agrees to fully reimburse the State for the salary and other compensation paid to the individual and, in addition, for all employer contributions for fringe benefits made on behalf of the individual while he or she is on Employee Organization Leave. The individual would continue as a State employee, on the State’s payroll, during this time. Another consideration affecting State employees on Employee Organization Leave: The State Ethics Commission has advised [Advisory Opinion No. 90-1] that “State employees on Employee Organization Leave or State employees on leave without pay who serve as employee organization representatives for CSEA … who have terminated their State service and are now employed by CSEA are subject to the "revolving door" provisions of the Public Officers Law and the corresponding restrictions on post-employment activities.” Presumably this opinion would be applied with respect to State employees on employee organization leave serving with other employee organizations.”

** Judges Tom and Gische dissented in an opinion by Judge Gische.

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