The Matter of City of Long Beach v. New York State Public Employment , Relations Board

• Court: New York Court of Appeals
• Decided: October 25, 2022
• Docket: 70
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 70 In the Matter of City of Long Beach, Respondent, v. New York State Public Employment Relations Board, Appellant, Long Beach Professional Firefighters Association, IAFF, Local 287, Appellant.

Michael T. Fois, for appellant New York State Public Employment Relations Board. Louis D. Stober, Jr., for appellant Long Beach Professional Firefighters Association, IAFF, Local 287. Terry O’Neil, for respondent. New York State Professional Fire Fighters Association, amicus curiae.

TROUTMAN, J.:

We are presented with the following question: Does the Taylor Law (Civil Service

Law § 200 et seq.) require a municipality to engage in collective bargaining over the

procedures for terminating municipal employees after they have been absent from work for

more than a year due to an injury sustained in the line of duty? We hold that collective

bargaining is required.

-1- -2- No. 70

I

Nonparty Jay Gusler is a professional firefighter for the City of Long Beach (City)

and a member of the Long Beach Professional Firefighters Association (Union). He

sustained injuries in the line of duty in November 2014, which were later determined to be

compensable under the Workers’ Compensation Law.

In November 2015, the City’s Fire Commissioner sent Gusler a letter notifying him

that the City was evaluating whether to exercise its right to terminate Gusler’s employment,

inasmuch as Civil Service Law § 71 would no longer prohibit the City from terminating

him after his absence from work for more than a year due to his injury. The letter explained

that if Gusler “dispute[d] this potential termination” the City would hold a meeting at a

specified time and date at which he would have the opportunity to be heard, but if he failed

to attend the meeting then the Fire Commissioner would determine that Gusler was not

contesting his termination and would recommend his discharge.

The Union responded by sending the City a demand to negotiate the procedures for

terminating its members covered by section 71’s protections. After the City refused, the

Union filed an improper practice charge with the Public Employment Relations Board

(PERB). The charge claimed that the City’s refusal to negotiate in good faith violated

section 209-a (l) (d) of the Taylor Law.

On administrative appeal, PERB affirmed an Administrative Law Judge’s decision

and concluded that under PERB’s precedents the City had an obligation to engage in

collective bargaining prior to imposing procedures for terminating an employee covered

by section 71. PERB reasoned that “there is nothing inescapably implicit in [section] 71

-2- -3- No. 70

which establishes the Legislature’s plain and clear intent to exempt employers from the

State’s ‘strong and sweeping policy’ to support employer-employee negotiations.”

Deferring to PERB’s interpretation of section 71, Supreme Court dismissed the

City’s article 78 petition seeking to annul PERB’s decision. The Appellate Division

reversed and, among other things, annulled PERB’s determination. The Court held that it

need not defer to PERB’s interpretation of section 71 and that the City overcame the

presumption in favor of mandatory bargaining (187 AD3d 745, 747-748 [2d Dept 2020]).

This Court granted leave to appeal (36 NY3d 911 [2021]). We now reverse.

II

The dispositive question on this appeal is whether the Taylor Law requires public

employers to bargain over the pretermination procedures used in implementing Civil

Service Law § 71. Based on the language and legislative history of section 71, we conclude

that it does. In reaching that conclusion, “[w]e decide th[e] issue de novo . . . because the

question is one of pure statutory construction dependent only on accurate apprehension of

legislative intent [with] little basis to rely on any special competence of PERB” (Matter of

New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 8 NY3d 226, 231

[2007] [internal quotation marks omitted]).

The Taylor Law requires public employers to collectively bargain over public

employees’ “terms and conditions of employment” (Civil Service Law § 204 [2]). That

requirement reflects the “strong and sweeping” public policy in favor of collective

bargaining in this state (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations

-3- -4- No. 70

Bd. [Watertown], 95 NY2d 73, 78 [2000] [internal quotation marks omitted]). “The

presumption in favor of bargaining may be overcome only in ‘special circumstances’ where

the legislative intent to remove the issue from mandatory bargaining is ‘plain’ and ‘clear’

. . . or where a specific statutory directive leaves ‘no room for negotiation’ ” (id. at 78-79

[emphasis added]). For instance, bargaining may be foreclosed when a statute directs that

a certain action be taken by the employer or when the subject of bargaining would result

in the employer surrendering nondelegable statutory responsibilities (see Matter of Board

of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75

NY2d 660, 667 [1990]). Furthermore, although rarely invoked, “we have held that some

subjects are excluded from collective bargaining as a matter of policy, even where no

statute explicitly says so” (Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v

New York State Pub. Empl. Relations Bd., 6 NY3d 563, 572 [2006]).

In relevant part, section 71 states that,

“[w]here an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the work[ers’] compensation law, [the employee] shall be entitled to a leave of absence for at least one year . . . ” (Civil Service Law § 71).

The legislature enacted section 71 to address prolonged employee absences and

“strike a balance between the recognized substantial State interest in an efficient civil

service and the interest of the civil servant in continued employment in the event of a

disability” (Matter of Allen v Howe, 84 NY2d 665, 672 [1994]). The statute does so by

entitling public employees disabled by an occupational injury to a one-year leave of

-4- -5- No. 70

absence, while also providing them with a means for later reinstatement if they are

terminated for being absent longer than a year (see Civil Service Law § 71; Mem of Dept.

of Civ. Serv., Bill Jacket, L 1958, ch 790 at 22; see also Matter of Jordan v New York City

Hous. Auth., 33 NY3d 408, 413 [2019]; Allen, 84 NY2d at 672).

Section 71 also avoids stigmatizing employees experiencing work-related

disabilities—particularly disabilities resulting from mental health issues—which the

legislature has acknowledged can occur if, instead, employers resort to terminating those

employees using the disciplinary proceedings provided for under Civil Service Law § 75

(see Jordan, 33 NY3d at 412-413; Allen, 84 NY2d at 671-672; Mem of Dept. of Civ. Serv.,

1965 NY Legis Ann at 91-92).1 Prior to section 71’s enactment, “a civil service employer

was unable to fill the vacancy created by [an] absent, disabled employee, short of the

employee’s resignation, unless the employer instituted a disciplinary proceeding alleging

incompetency or incapacity to perform, and the employee was dismissed after a hearing

adjudging such ‘incompetency’ ” (Allen, 84 NY2d at 671). Section 71 provides an

alternative by granting an employee with a work-related disability a leave of absence of up

to one year and conditional reinstatement—even after that year has passed—while allowing

the employer to fill the position if it chooses to terminate the employee.

1 Civil Service Law § 75 establishes protections and procedures for covered employees facing discipline and provides that they “shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section” (Civil Service Law § 75 [1]). -5- -6- No. 70

Our review of section 71 reveals that “there is no ‘plain’ and ‘clear’ evidence that

the Legislature intended” to foreclose from mandatory bargaining the procedures for

terminating employees covered by the statute (Watertown, 95 NY2d at 85). Both the

language and legislative history of the section are silent on the issue of collective

bargaining.2 Nor has the City presented any other evidence suggesting a legislative intent

to limit collective bargaining here: it has neither provided legislative history from the

Taylor Law nor pointed to other statutory provisions exempting this case from that law.3

Nor is there a “specific statutory directive [that] leaves ‘no room for negotiation’ ”

of pretermination procedures (Watertown, 95 NY2d at 78-79). Section 71 does not, for

example, specify the amount of advance notice that the employee must receive, the content

of such notice, or the requirement that the employee have an opportunity to be heard prior

to termination. Indeed, inasmuch as section 71 does not reference pretermination

procedures at all, the statute plainly leaves room for the City and the Union to negotiate

those procedures.4

2 This comes as no surprise. The legislature enacted section 71 in 1958, nearly a decade before the Taylor Law’s enactment (compare Civil Service Law § 71 with Civil Service Law § 200 et seq.). 3 Of course, negotiation is permissive but not mandatory if “the Legislature has manifested an intention to commit [a] decision[] to the discretion of the public employer” (Board of Educ. of City School Dist. of City of New York, 75 NY2d at 669). Here, “we see no evidence—let alone clear evidence—that the Legislature intended to withdraw the subject . . . from the mandatory negotiating process” (id. at 670). 4 Additionally, in this case, 4 NYCRR 5.9 does not foreclose collective bargaining of pretermination procedures. Although relied upon by the Appellate Division (187 AD3d at

-6- -7- No. 70

The City’s additional arguments are not persuasive. The need for the City to provide

pretermination procedures is not eliminated by a terminated employee’s ability to seek

reinstatement under section 71. Following Matter of Prue v Hunt, it is obvious that due

process requires the City to provide “notice and a minimal opportunity to be heard” prior

to terminating an employee covered by section 71, regardless of the section’s provisions

for seeking reinstatement after termination (78 NY2d 364, 366 [1991] [abrogating Matter

of Economico v Village of Pelham, 50 NY2d 120 (1980)]). Furthermore, notice and an

opportunity to be heard plainly qualify as “procedures,” and here under the Taylor Law

public employers must negotiate the details of those procedures (compare Prue, 78 NY2d

at 367-369, with Watertown, 95 NY2d at 81).

The City also misconstrues the portion of our decision in Economico that was not

abrogated by Prue. There we held that “public policy prohibits an employer from

bargaining away its right to remove those employees satisfying the plain and clear statutory

requisites for termination” (id. at 129). Requiring the City to negotiate with the Union over

procedures for terminating an employee covered by section 71—which are not addressed

in the statute—is fundamentally different from requiring the City to negotiate over the right

to terminate an employee after the year-long period of absence protected by section 71.

747-748), the regulation by its terms applies only to “State employees who are subject to section 71” (4 NYCRR 5.9 [a]; see 4 NYCRR 1.1). Gusler is a municipal employee, not a State employee. We offer no further opinion about the merits of the regulation. -7- -8- No. 70

Contrasting our decisions in Watertown and Matter of City of Schenectady v New

York State Pub. Empl. Relations Bd. [Schenectady] (85 NY2d 480 [1995]) is illustrative.

Both of those cases involved issues of whether certain aspects of General Municipal Law

section 207–c are mandatory subjects of collective bargaining. Under section 207-c,

“disabled police officers who suffer injury or illness in the course of employment may

continue to receive their salary, but the City has the right to conduct their medical

examinations, prescribe treatment and order them back to work—for full or light duty—if

it deems them capable” (Watertown, 95 NY2d at 76).

In Schenectady, we held that a city’s authority under section 207–c to make initial

determinations about those matters is not “subject to mandatory bargaining” (Schenectady,

85 NY2d at 483). We left open the question of whether “the procedures for implementation

of the requirements of [section] 207–c” are a subject of collective bargaining (id. at 487),

but we answered that question in the affirmative five years later in Watertown. There, we

held that “the procedures for contesting the City’s determinations under section 207–c are

a mandatory subject of bargaining” (Watertown, 95 NY2d at 79). We distinguished our

holding in Schenectady, concluding that “[u]nlike the initial determinations themselves”—

which were at issue in Schenectady—“the text of section 207–c says nothing about the

procedures for contesting those determinations” (id. at 81). We then explained that, based

on the text and history of section 207-c, it was evident that “[t]he Legislature expressed no

intent—let alone the required ‘plain’ or ‘clear’ intent—to remove the review procedures

from mandatory bargaining” (id.).

-8- -9- No. 70

Although the structure and legislative intent undergirding the statute at issue in

Schenectady and Watertown is different from that of the statute at issue here, the principles

pronounced in those decisions apply generally to section 71. Here, although it is

undisputed that the City’s right to terminate is not a subject of mandatory negotiation, the

City must negotiate the procedures necessary to effectuate that right.

We disagree with the City that requiring municipalities to negotiate those

pretermination procedures frustrates the legislative intent of allowing employers to

maintain efficiency by quickly filling vacancies on a permanent basis after a year. In the

future, the City and the Union will only need to negotiate pretermination procedures as part

of any new collective bargaining agreement, not every time the City seeks to terminate an

employee. For that reason, requiring negotiation does not clearly undermine the

efficiencies that the legislature sought to create in enacting section 71. Indeed, the City

can negotiate for procedures that it deems efficient. Additionally, inasmuch as the

legislature also designed section 71 as an alternative to “the procedural hurdle” of

employers having to commence section 75 disciplinary hearings (Jordan, 33 NY3d at 413),

that purpose is preserved despite the bargaining requirement.

Finally, the City raises concerns that the Union may use collective bargaining to

undermine its right to terminate employees on disability at the appropriate time. But there

are avenues to address those concerns—including, but not limited to, impasse arbitration

or declaratory rulings by PERB—which would be subject to judicial review to the extent

permitted under the CPLR (see Civil Service Law §§ 209, 213; 4 NYCRR 210.1; Matter

-9- - 10 - No. 70

of City of N.Y. v New York State Pub. Empl. Relations Bd., 54 AD3d 480, 482 [3d Dept

2008]). In any event, “the theoretical possibility of a negotiating deadlock” does not render

the issue of pretermination procedures a prohibited subject of negotiation (Board of Educ.

of City School Dist. of City of N.Y., 75 NY2d at 671).

Accordingly, the order of the Appellate Division should be reversed, with costs, and

the order and judgment of Supreme Court reinstated.

Order reversed, with costs, and order and judgment of Supreme Court, Nassau County, reinstated. Opinion by Judge Troutman. Acting Chief Judge Cannataro and Judges Rivera, Garcia, Wilson and Singas concur.

Decided October 25, 2022

- 10 -