April 15, 2019

Considering the strong policy of including all public employees within the ambit of the Taylor Law, authority to designate certain employees managerial or confidential is to be read narrowly

For the purposes of Article 14 of the Civil Service Law, the Taylor Law, the term "public employee" means any person holding a position by appointment or employment in the service of a public employer except:

[1] judges and justices of the unified court system;

[2] persons holding positions by appointment or employment in the organized militia of the state; and 

[3] persons who may reasonably be designated from time to time as managerial or confidential upon application of the public employer to the appropriate body in accordance with such body's duly established procedures. 

Such persons, however, remain subject to the provisions of §210 of the Taylor Law, "Prohibition of strikes" and §211 of the Taylor Law which provides for obtaining "injunctive relief" where required.

Further, only persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective bargaining pursuant to the Taylor Law or to have a major role in the administration of collective bargaining agreements and, or, negotiated memoranda of understandings, or in personnel administration, provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment, may be designated "managerial" within the meaning of the Taylor Law while only employees who assist and act in a confidential capacity to employees designated "managerial" may be designated "confidential" for the purposes of the Taylor Law.*

Managerial  or confidential employees may not be an officer or a member of any employee organization that is currently, or seeks to become, the certified  or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.

Following the New York City Board of Certification's [the Board] approving an application by the Organization of Staff Analysts [the Organization] to add the title of Senior Auditor to the Organization's collective bargaining unit, the New York City Health + Hospitals [NYC Health] initiated an Article 78 action in Supreme Court seeking a court order annulling the Board's determination. 

Supreme Court dismissed NYC Health's petition. NYC Health appealed but the Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division opined that Supreme Court had properly deferred to the Board's rational interpretation of the applicable statutes, including the Board's finding that the exemption to public employees' eligibility for collective bargaining set out in the Taylor Law is controlling. Citing Viruet v City of New York , 97 NY2d 171, the Appellate Division explained that as the Taylor Law is incorporated into the New York City Health and Hospitals Corporation Act and the exemptions in the Act are substantially consistent with Article 14 of the Civil Service, "the override provision of Unconsolidated Laws §7405(5) does not apply" in this instance.

Noting that the exclusions for managerial and confidential employees are an exception to the Taylor Law's strong policy of extending its coverage to all public employees and are to be read narrowly, the court concluded that here the Board had a rational basis for finding that Senior Auditors were not "managerial" employees within the meaning of the Taylor Law. Although a Senior Auditor specifies how audits are to be conducted and may proposed changes based on the audit's findings, the Appellate Division said that "the Board reasonably found that submitting such nonbinding recommendations" does not constitute "formulat[ing] policy." Further, said the court, the Board also rationally found that Senior Auditors are not "confidential" employees within the meaning of the Taylor Law.

* For the purposes of the Taylor Law, §201.7(b) of the Civil Service Law provides that assistant attorneys general, assistant district attorneys, and law school graduates employed in titles leading to promotion to assistant district attorney upon admission to the New York bar are "managerial" employees. Confidential investigators employed by the New York State Department of Law are "confidential" employees within the meaning of the Taylor Law pursuant to §201.7(b).

The decision is posted on the Internet at: