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Ups ’n downs of injunctive relief explored at Taylor Law 50th Anniversary conference

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DIFFERENT PERSPECTIVES – PEF General Counsel Ed Aluck comments at a PERB conference on the union’s experience in seeking injunctive relief. At left are GOER Associate Counsel Amy Petragnani and PERB General Counsel David Quinn.                                                                                Photo by Sherry Halbrook

By SHERRY HALBROOK

The NYS Taylor Law (state Civil Service Law), which sets the rules for collective bargaining by public employees, is celebrating its 50th Anniversary this year. And the state Public Employment Relations Board (PERB) that enforces the law, held a three-day conference May 9-11 in Albany to mark the occasion.

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PEF General Counsel Ed Aluck was a member of a three-person panel that discussed experience with injunctive relief for alleged Taylor Law violations. PERB General Counsel David Quinn moderated and directed the discussion that also included panelist Amy Petragnani, associate counsel for the Governor’s Office of Employee Relations.

Injunctions may be ordered by the state Supreme Court to temporarily stop an alleged violation of the law (improper practice) until the matter can be fully reviewed and decided by PERB.

Both Aluck and Petragnani said sometimes an issue can be settled more quickly when the complainant asks for an injunction to block an action that must be stopped immediately to prevent irreparable harm that could take place while a case is being presented and decided on its merits, a process that sometimes takes years.

“What’s driving the union’s decision (to seek an injunction) is something that’s about to happen (in the workplace) that we need to prevent because the potential damage would take place immediately and could not be remediated later.  We may only learn of this danger a day or a week before it happens,” Aluck said.

When a union applies to PERB for a temporary injunction, it triggers a quick succession of legal obligations and deadlines that makes that application a first priority and forces the all of the parties to push their other work to the backburner and focus on the situation that spurred the request for an injunction.

While the ability to request an injunction is a powerful and essential tool the union has to protect its members from immediate and irreparable harm, it is best used rarely and only in the most serious and urgent cases.

The Taylor Law requires PERB to proceed on a request for injunctive relief within 10 days. PERB may deny the application for injunctive relief. On the other hand, if PERB agrees with the union that there is reason to believe the employer is breaking the law and that act must be stopped immediately to avoid irreparable harm, PERB may either apply to the Supreme Court in Albany County for the relief, or it may allow the union to apply to that court for the relief. If it goes to the court, then the judge, too, must decide swiftly whether to issue a temporary injunction.

However, if PERB takes no action within the 10 days, it is deemed to have made a final order denying the application for an injunction. If the application for injunctive relief is denied by PERB, the union may ask the court, pursuant to Article 78 of the state Civil Service Law, to review that decision. If the court issues an injunction, then the case takes precedence over all other cases pending before PERB and a PERB hearing officer has 60 days to rule on whether the employer’s action violates the law and is an improper practice.

If the officer finds the employer’s action violates the law, PERB will order the employer to stop doing it, the court and parties will be notified and the injunction will end. If the hearing officer finds the employer’s action is lawful, PERB will notify the court and the parties and the injunction will end. If the officer does not rule within 60 days, the charge is deemed to have been denied, and the injunction will end.

“Having that deadline, forces the parties to the (negotiating) table,” Aluck said.

“Responding to such a request requires a phenomenal amount of effort,” Quinn said. “And there’s no limit to the number of injunctive relief applications you can file. We say (to the complainant) if you withdraw (the application) for a few days (and then resubmit it), that will give time for the respondent to give a full response.”

Both Petragnani and Quinn said they wish the law would give them more time to respond to improper practice charges alleging Taylor Law violations and especially those where the union applies for injunctive relief. While Quinn and Petragnani said they feel the unions have unlimited time to prepare and file their complaints, Aluck pointed out that injunctions are only sought when time is critical and the union must act very swiftly to try to prevent irreparable harm to one or more of its members.

The circumstance that provokes a union to apply for an injunction can pop up very suddenly and it forces the union’s legal staff to make it the top priority. The hardest lift, is for the union, he said, because it must quickly gather evidence and prepare the application with the evidence, cite pertinent law and regulations, and frame arguments for why the potential damage is imminent and irreversible. PERB and GOER must respond quickly, but they need only address the points the union makes in its application.

“We (at PERB) may say, ‘Stop it!’ Quinn said. “If the hearing officer says nothing, then it’s deemed appealable (to the state Supreme Court) within 10 days under Article 78, but we generally like to keep control of it (at PERB).”

Aluck said he thinks it is better for PERB than the court to decide Taylor Law cases because PERB is far more familiar with that law and public services than the courts. He also said he believes the court usually views applications for injunctions more favorably when they are submitted by PERB, rather than by a union.

Petragnani said sometimes GOER “appreciates you (PERB) not taking the lead (in seeking injunctions).

Quinn said PERB will not send a case to the courts for enforcement if the complainant’s filing lacks essential information and is poorly constructed.

Quinn also said he will deny hearing a request for injunctive relief if the complainant fails to show the lack of such relief would show irreparable harm. He also cited a recent request for an injunction that he denied because it called for a remedy that was beyond the scope of options PERB may order under the Taylor Law.

“There was no need for reinstatement (of an employee) or back pay. We couldn’t remedy it, so we denied it. The court also denied the injunction. But the case (question of whether the employer is violating the Taylor Law) is still pending,” Quinn said.

Quinn cited a past case involving an employer that had cut off health insurance and drug coverage for its employees, as an example of an urgent matter that justified an injunction. He added that unfortunately establishing the potential for irreparable harm required some of the employees to reveal their personal medical information to the court and “that (intrusion) on their privacy interests cannot be squeezed back into the tube.”

Quinn asked Aluck if he feels PERB is sometimes “too stingy” in agreeing with unions’ charges of improper practices.

Aluck said PEF is disappointed when its charges are denied by PERB. He cited the example of a case in which PEF alleged the state’s decision, during a “reduction in force,” to layoff an employee who was an outspoken union advocate was really an act of unlawful retaliation for the employee’s legally protected union activity.

“PERB denied the injunction because it felt we could replace the union advocate with another one, but we feel the union’s ability to mobilize its members to effect change was seriously impaired by the loss of this experienced leader,” Aluck said. “This may become especially important in a post-Janus future.”

Quinn said he knew of a case in which a much smaller public employer fired all of the union’s organizers. The employer appealed PERB’s ruling in favor of the union to the state Supreme Court, and the court overturned PERB’s decision. “We lost,” Quinn said.

Table of Contents – June 2018

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