Preview
FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_______________________________________________________________________Ç
NEW YORK STATE PUBLIC EMPLOYMENT
RELATIONS BOARD,
Petitioner, Index No. 452305/2023
For an Order and Declaratory Judgment Pursuant to AFFIRMATION OF
Article 78 and CPLR 3001 HARRY GREENBERG IN
SUPPORT OF THE
-against- NEW YORK CITY
MUNICIPAL LABOR
NEW YORK CITY OFFICE OF COLLECTIVE COMMITTEE'S MOTION
BARGAINING, THE NEW YORK CITY BOARD OF TO INTERVENE OR
COLLECTIVE BARGAINING, and THE NEW YORK TO APPEAR AS
CITY BOARD OF CERTIFICATION, AMICUS CURIAE
Respondents.
_______________________________________________________________________Ç
HARRY GREENBERG, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the following under penalty of perjury:
1. I am a member of the firm Greenberg Burzichelli Greenberg P.C., counsel for
proposed Intervenor-Respondent New York City Municipal Labor Committee ("MLC"). I am
duly admitted to practice before this Court.
2. I have been counsel to the MLC for over ten years. I am also counsel to several
unions that are members of the MLC and have extensive experience with collective bargaining in
the City of New York ("City").
3. I submit this Affirmation and the accompanying Memorandum of Law in support
of the MLC's motion to intervene in the above-captioned proceeding pursuant to Civil Practice
Law and Rules 1012 (2), 1013, and 7802 (d).
4. Should the Court deny the MLC's motion to intervene, then I respectfully request
that this Court grant the MLC leave to appear as amicus curiae in this matter and accept the
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Respondents'
MLC's Memorandum of Law as an Amicus Curiae Brief in Support of Motion to
Dismiss instead.
5. I am fully familiar with the facts and circumstances set forth below. The source
of my knowledge includes discussions with my client, the MLC, review of my files, and review
of the record in this matter. All citations to legal authority are based upon legal research.
PERB'S VERIFIED PETITION
6. On or about September 12, 2023, Petitioner New York State Public Employment
Relations Board ("PERB") commenced this hybrid action under Civil Practice Law and Rules
article 78 and section 3001 by filing a Verified Petition, along with supporting documents,
Respondents'
alleging that implementation of the New York City Collective Bargaining Law's
(Administrative Code of City of NY, tit 12, ch 3) ("NYCCBL") provisions and procedures (61
RCNY Chapter 1) is not substantially equivalent to the provisions and procedures of Article 14
Law."
of the Civil Service Law, also known as the "Taylor
7. Specifically, PERB alleges that Respondents New York City Office of Collective
Bargaining ("OCB"), the New York City Board of Collective Bargaining ("BCB"), and the New
bar"
York City Board of Certification ("BOC") are implementing their "contract rule in a way
that could theoretically deprive public employees of their right to choose their bargaining
representative indefinitely (NY St Cts Elec Filing [NYSCEF] Doc No. 1 ¶ 270).
Respondents'
8. contract bar rule provides several timeframes or windows in which
filed.1
a petition for certification or decertification, among others, may be Such petitions may be
1. Certification and decertification are the processes for officially recognizing that an ernployee organization either
represents or no longer represents a certain bargaining unit of public employees (see Rules of OCB [61 RCNY]
§ 1-02 [e] [1]).
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filed during certain windows prior to the expiration of a valid contract or collective bargaining
agreement ("CBA"):
"Petitions - contract time to file. A valid contract between a public employer
bar;
and a public employee organization will bar the processing of any petition filed
outside of the window periods described below. The time period for filing a petition
for certification, designation, decertification or revocation of designation pursuant
years'
to § 1-02(c), (d), or (e) of these rules is: for a contract of no more than three
duration, a petition can be filed not less than 150 or more than 180 calendar days
years'
before the contract's expiration date; for a contract of more than three
duration, a petition can be filed not less than 150 or more than 180 calendar days
before the contract's expiration date, or not less than 150 or more than 180 calendar
contract."
days before the end of the third year of that
(Rules of OCB [61 RCNY] § 1-02 [g].)
9. To provide an unrestricted period in which negotiation and dispute resolution may
occur, the rule does not permit the filing of a petition after the expiration of an agreement when
collective bargaining is occurring:
"No petition for certification, decertification or investigation of a question or
controversy concerning representation may be filed after the expiration of a
contract."
(Id.)
10. However, if a new agreement is entirely retroactive or expires shortly after
it is executed, a 30-day window opens for the filing of a petition. Additionally, if unusual
or extraordinary circumstances exist, including after expiration of a contract, Respondents
are permitted to process a petition:
"However, if a window period would be eliminated or shortened, such as when a
public employer and a public employee organization sign a successor contract after
that contract has expired or less than 180 days before it expires, then a petition for
certification, decertification or question or controversy concerning representation
may be filed in the 30-day period following the date the successor contract is signed
by all parties. Moreover, if the Board finds that unusual or extraordinary
circumstances exist, such as when there is reason to believe that a recognized or
certified employee organization is defunct or has abandoned representation of the
employees in the unit for which it was recognized or certified, the Board may
rule."
process a petition otherwise barred by this
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(Id)
Respondents'
11. Like rule, PERB's contract bar rule also limits the time windows
when petitions for certification or decertification may be filed. In contrast, however, PERB's
contract bar rule permits the filing of certification or decertification petitions 120 days after a
CBA expires:
"A petition for certification or decertification may be filed by an employee
organization other than the recognized or certified employee organization and a
petition for decertification may be filed by one or more public employees, if no new
agreement is negotiated, 120 days subsequent to the expiration of a written
agreement between the public employer and the recognized or certified employee
organization or, if the agreement does not expire at the end of the employer's fiscal
year, then 120 days subsequent to the end of the fiscal year immediately prior to the
termination date of such agreement. Thereafter, such a petition may be filed until a
executed."
new agreement is
(Rules of PERB [4 NYCRR] § 201.3 [e].)
parties'
12. Notwithstanding the differences between the contract bar rules, PERB
recognizes that OCB's Rules do not have to be identical to PERB's Rules (NYSCEF Doc. No. 7
at 4).
13. Indeed, neither the Taylor Law nor the NYCCBL have contract bar provisions
parties'
(NYSCEF Doc. No. 1 ¶ 57). These provisions only occur in the rules as set forth above
(see id ¶ 58).
14. Prior to 1974, PERB's contract bar rule did not expressly provide for
decertification after a CBA expired (id ¶ 59). PERB amended its contract bar that year to
explicitly include this window for decertification (see id ¶ 60). When it did so, it made no effort
Respondents'
to challenge or change rule.
15. Since 1974 - for almost 50 years - PERB's and OCB's contract bar rules
differing
peacefully coexisted without any issue.
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16. Then, on May 19, 2022, after a failed attempt by the Sergeants Benevolent
Association ("SBA") to decertify the Law Enforcement Employees Benevolent Association
("LEEBA") as the recognized bargaining representative for employees serving as Environmental
Police Officers ("EPOs") at the City's Department of Environmental Protection, the
Environmental Police Benevolent Association ("EPBA") sought decertification of LEEBA as
well (id ¶¶ 87, 104).
17. Respondent OCB's Director of Representation dismissed the EPBA's petition for
decertification for the same reason it had previously rejected the SBA's petition: because it was
filed after the expiration of LEEBA's CBA covering EPOs (id ¶¶ 92, 111).
18. The SBA commenced an action under CPLR article 78 seeking review of
Respondents'
decision dismissing its petition, but ultimately discontinued it on consent (id ¶
103).
19. The EPBA did not appeal its dismissal as permitted under OCB's Rules (id ¶
115). Had they done so, they could have ultimately sought review through an article 78
proceeding.
20. Instead, the EPBA requested that PERB review OCB's contract bar rule for
substantial equivalence (id ¶¶ 116, 118).
21. After investigating the matter, PERB concluded that OCB's contract bar rule was
not substantially equivalent to the Taylor Law and submitted its findings to Respondents (id ¶
260).
22. PERB offered Respondents the opportunity to amend its rule and warned them if
they did not, PERB would seek a declaratory judgment (id).
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23. Respondents declined to amend their rule, so PERB commenced this hybrid
action pursuant to CPLR 3001 and article 78 (id. ¶¶ 261, 262).
THE MLC
24. The MLC is an unincorporated association of City municipal labor organizations
created pursuant to a memorandum dated March and codified pursuant to section 12-
31, 1966,
303 (k) of the New York City Administrative Code.
25. The MLC is an umbrella organization consisting of over 100 unions that represent
approximately 400,000 active City employees (see NYSCEF Doc. No. 1 ¶ 130 n 16).
26. Membership in the MLC is open to any certified employee organization (union)
as defined in the NYCCBL that is otherwise eligible for membership under the MLC's rules
(NYCCBL § 12-313).
27. The MLC designates two labor representatives to BCB who serve at the MLC's
pleasure. These representatives and the City's two representatives elect three impartial BCB
members, one of whom is also named as chair of the BCB and BOC and director of OCB. These
three impartial members also comprise Respondent BOC. (See NY City Charter §§ 1171, 1172;
NYSCEF Doc. No. 1 ¶ 130 n 16.)
28. Under NYCCBL § 12-310 (2), representatives of the MLC and the City are
required to meet at least twice a year to discuss general issues facing Respondents, including
those arising out of the administration of OCB's Rules. In reality, the MLC and the City meet
regularly to negotiate and collaborate on various issues.
29. The MLC is responsible for negotiating certain citywide benefits like healthcare
for the City's public employees. The MLC also supports its constituent unions in their individual
negotiations regarding economic and non-economic terms and conditions of employment.
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30. While the City's efforts to consolidate titles over the past 50 years has decreased
the number of bargaining units in the City, bargaining continues to be complicated by several
factors: the disparate needs of different City agencies; the sheer size and complexity of City
operations; and the fact that the various City agencies, as well as several other City-based public
employers, all bargain through the City's single bargaining representative, the Office of Labor
Relations.
31. Thus, despite good faith efforts on all sides, City bargaining simply takes more
time, with contracts being executed well past the expiration of prior contracts and sometimes
after expiration of the very contract being negotiated. Over the decades, the OCB Rules have
reflected this continuing reality.
32. Public employees not only have the right to choose their own employee
organization, but they also have a right to bargain collectively through those organizations as
well (see NYCCBL § 12-305 ["Public employees shall have the right to self-organization, to
form, join or assist public employee organizations, to bargain collectively through certiped
employee organizations of their own choosing and shall have the right to refrain from any or all
activities."
of such (emphasis added)]).
33. Each union therefore has a responsibility to exercise their bargaining unit's right
to negotiate terms and conditions of employment.
34. However, public employers are prohibited from modifying the terms and
conditions of employment during the pendency of a representation petition, and therefore cannot
bargain with a union facing a decertification petition (see DC 37, 69 OCB 23, at *9-16 [BCB
2002]).
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35. The relief PERB seeks in this action - to open a decertification window after the
expiration of a CBA- will not affect the of labor relations in the but will also
only stability City
unions'
affect the MLC and its member right and responsibility to negotiate with public
employers.
36. PERB recognizes that the MLC has a real and substantial interest in the outcome
of this proceeding and alleges that it invited the MLC to its investigatory conference held on
September 22, 2022, but the MLC chose not to attend (NYSCEF Doc. No. 1 ¶¶ 130-131.)
37. On or about September 13, 2022, I received an email from PERB's General
Counsel, Michael Fois, in which I was copied, indicating that Mr. Fois intended to invite the
MLC to the investigatory conference as the MLC had an interest in the subject matter. A copy of
that email is attached as Exhibit A.
38. However, neither I, nor anyone else at the MLC to my knowledge, subsequently
received an invitation to the investigatory conference. Consequently, the MLC did not attend it.
39. I understand that although PERB intends to oppose the MLC's motion to
intervene, it does not oppose the MLC's appearance as an amicus curiae. I also understand that
Respondents support the MLC's appearance as an intervenor or as an amicus curiae.
40. For the reasons set forth in the accompanying Memorandum of Law, this Court
should allow the MLC to intervene in this proceeding because it has a real and substantial
interest in it. The Court should also accept the arguments included in the accompanying
Memorandum of Law as MLC's motion to dismiss the Verified Petition. To the extent the Court
does not dismiss the Verified Petition, it should grant the MLC 30 days from the date of its
decision to file an answer.
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41. Alternatively, if the Court denies the MLC's motion to intervene, then it should
permit it to appear as amicus curiae and accept the arguments in the accompanying
Respondents'
Memorandum of Law in support of motion to dismiss. To the extent the Court
does not dismiss the Verified Petition, it should grant the MLC 30 days from the date of its
decision to file an amicus brief in support of Respondents.
Dated: Lake Success, New York
November 17, 2023
$ eenberg
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WORD COUNT CERTIFICATION
I certify that the word count of the foregoing Affirmation, excluding caption and
signature block, is 2,289 and complies with the word count limit set forth in 22 NYCRR 202.8-b.
The word count was obtained by using the word count feature provided by Microsoft Office.
Dated: Lake Success, New York
November 17, 2023
Harry G nberg
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Preview
FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _______________________________________________________________________Ç NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, Petitioner, Index No. 452305/2023 For an Order and Declaratory Judgment Pursuant to AFFIRMATION OF Article 78 and CPLR 3001 HARRY GREENBERG IN SUPPORT OF THE -against- NEW YORK CITY MUNICIPAL LABOR NEW YORK CITY OFFICE OF COLLECTIVE COMMITTEE'S MOTION BARGAINING, THE NEW YORK CITY BOARD OF TO INTERVENE OR COLLECTIVE BARGAINING, and THE NEW YORK TO APPEAR AS CITY BOARD OF CERTIFICATION, AMICUS CURIAE Respondents. _______________________________________________________________________Ç HARRY GREENBERG, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under penalty of perjury: 1. I am a member of the firm Greenberg Burzichelli Greenberg P.C., counsel for proposed Intervenor-Respondent New York City Municipal Labor Committee ("MLC"). I am duly admitted to practice before this Court. 2. I have been counsel to the MLC for over ten years. I am also counsel to several unions that are members of the MLC and have extensive experience with collective bargaining in the City of New York ("City"). 3. I submit this Affirmation and the accompanying Memorandum of Law in support of the MLC's motion to intervene in the above-captioned proceeding pursuant to Civil Practice Law and Rules 1012 (2), 1013, and 7802 (d). 4. Should the Court deny the MLC's motion to intervene, then I respectfully request that this Court grant the MLC leave to appear as amicus curiae in this matter and accept the 1 of 10 FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023 Respondents' MLC's Memorandum of Law as an Amicus Curiae Brief in Support of Motion to Dismiss instead. 5. I am fully familiar with the facts and circumstances set forth below. The source of my knowledge includes discussions with my client, the MLC, review of my files, and review of the record in this matter. All citations to legal authority are based upon legal research. PERB'S VERIFIED PETITION 6. On or about September 12, 2023, Petitioner New York State Public Employment Relations Board ("PERB") commenced this hybrid action under Civil Practice Law and Rules article 78 and section 3001 by filing a Verified Petition, along with supporting documents, Respondents' alleging that implementation of the New York City Collective Bargaining Law's (Administrative Code of City of NY, tit 12, ch 3) ("NYCCBL") provisions and procedures (61 RCNY Chapter 1) is not substantially equivalent to the provisions and procedures of Article 14 Law." of the Civil Service Law, also known as the "Taylor 7. Specifically, PERB alleges that Respondents New York City Office of Collective Bargaining ("OCB"), the New York City Board of Collective Bargaining ("BCB"), and the New bar" York City Board of Certification ("BOC") are implementing their "contract rule in a way that could theoretically deprive public employees of their right to choose their bargaining representative indefinitely (NY St Cts Elec Filing [NYSCEF] Doc No. 1 ¶ 270). Respondents' 8. contract bar rule provides several timeframes or windows in which filed.1 a petition for certification or decertification, among others, may be Such petitions may be 1. Certification and decertification are the processes for officially recognizing that an ernployee organization either represents or no longer represents a certain bargaining unit of public employees (see Rules of OCB [61 RCNY] § 1-02 [e] [1]). 2 2 of 10 FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023 filed during certain windows prior to the expiration of a valid contract or collective bargaining agreement ("CBA"): "Petitions - contract time to file. A valid contract between a public employer bar; and a public employee organization will bar the processing of any petition filed outside of the window periods described below. The time period for filing a petition for certification, designation, decertification or revocation of designation pursuant years' to § 1-02(c), (d), or (e) of these rules is: for a contract of no more than three duration, a petition can be filed not less than 150 or more than 180 calendar days years' before the contract's expiration date; for a contract of more than three duration, a petition can be filed not less than 150 or more than 180 calendar days before the contract's expiration date, or not less than 150 or more than 180 calendar contract." days before the end of the third year of that (Rules of OCB [61 RCNY] § 1-02 [g].) 9. To provide an unrestricted period in which negotiation and dispute resolution may occur, the rule does not permit the filing of a petition after the expiration of an agreement when collective bargaining is occurring: "No petition for certification, decertification or investigation of a question or controversy concerning representation may be filed after the expiration of a contract." (Id.) 10. However, if a new agreement is entirely retroactive or expires shortly after it is executed, a 30-day window opens for the filing of a petition. Additionally, if unusual or extraordinary circumstances exist, including after expiration of a contract, Respondents are permitted to process a petition: "However, if a window period would be eliminated or shortened, such as when a public employer and a public employee organization sign a successor contract after that contract has expired or less than 180 days before it expires, then a petition for certification, decertification or question or controversy concerning representation may be filed in the 30-day period following the date the successor contract is signed by all parties. Moreover, if the Board finds that unusual or extraordinary circumstances exist, such as when there is reason to believe that a recognized or certified employee organization is defunct or has abandoned representation of the employees in the unit for which it was recognized or certified, the Board may rule." process a petition otherwise barred by this 3 3 of 10 FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023 (Id) Respondents' 11. Like rule, PERB's contract bar rule also limits the time windows when petitions for certification or decertification may be filed. In contrast, however, PERB's contract bar rule permits the filing of certification or decertification petitions 120 days after a CBA expires: "A petition for certification or decertification may be filed by an employee organization other than the recognized or certified employee organization and a petition for decertification may be filed by one or more public employees, if no new agreement is negotiated, 120 days subsequent to the expiration of a written agreement between the public employer and the recognized or certified employee organization or, if the agreement does not expire at the end of the employer's fiscal year, then 120 days subsequent to the end of the fiscal year immediately prior to the termination date of such agreement. Thereafter, such a petition may be filed until a executed." new agreement is (Rules of PERB [4 NYCRR] § 201.3 [e].) parties' 12. Notwithstanding the differences between the contract bar rules, PERB recognizes that OCB's Rules do not have to be identical to PERB's Rules (NYSCEF Doc. No. 7 at 4). 13. Indeed, neither the Taylor Law nor the NYCCBL have contract bar provisions parties' (NYSCEF Doc. No. 1 ¶ 57). These provisions only occur in the rules as set forth above (see id ¶ 58). 14. Prior to 1974, PERB's contract bar rule did not expressly provide for decertification after a CBA expired (id ¶ 59). PERB amended its contract bar that year to explicitly include this window for decertification (see id ¶ 60). When it did so, it made no effort Respondents' to challenge or change rule. 15. Since 1974 - for almost 50 years - PERB's and OCB's contract bar rules differing peacefully coexisted without any issue. 4 4 of 10 FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023 16. Then, on May 19, 2022, after a failed attempt by the Sergeants Benevolent Association ("SBA") to decertify the Law Enforcement Employees Benevolent Association ("LEEBA") as the recognized bargaining representative for employees serving as Environmental Police Officers ("EPOs") at the City's Department of Environmental Protection, the Environmental Police Benevolent Association ("EPBA") sought decertification of LEEBA as well (id ¶¶ 87, 104). 17. Respondent OCB's Director of Representation dismissed the EPBA's petition for decertification for the same reason it had previously rejected the SBA's petition: because it was filed after the expiration of LEEBA's CBA covering EPOs (id ¶¶ 92, 111). 18. The SBA commenced an action under CPLR article 78 seeking review of Respondents' decision dismissing its petition, but ultimately discontinued it on consent (id ¶ 103). 19. The EPBA did not appeal its dismissal as permitted under OCB's Rules (id ¶ 115). Had they done so, they could have ultimately sought review through an article 78 proceeding. 20. Instead, the EPBA requested that PERB review OCB's contract bar rule for substantial equivalence (id ¶¶ 116, 118). 21. After investigating the matter, PERB concluded that OCB's contract bar rule was not substantially equivalent to the Taylor Law and submitted its findings to Respondents (id ¶ 260). 22. PERB offered Respondents the opportunity to amend its rule and warned them if they did not, PERB would seek a declaratory judgment (id). 5 5 of 10 FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023 23. Respondents declined to amend their rule, so PERB commenced this hybrid action pursuant to CPLR 3001 and article 78 (id. ¶¶ 261, 262). THE MLC 24. The MLC is an unincorporated association of City municipal labor organizations created pursuant to a memorandum dated March and codified pursuant to section 12- 31, 1966, 303 (k) of the New York City Administrative Code. 25. The MLC is an umbrella organization consisting of over 100 unions that represent approximately 400,000 active City employees (see NYSCEF Doc. No. 1 ¶ 130 n 16). 26. Membership in the MLC is open to any certified employee organization (union) as defined in the NYCCBL that is otherwise eligible for membership under the MLC's rules (NYCCBL § 12-313). 27. The MLC designates two labor representatives to BCB who serve at the MLC's pleasure. These representatives and the City's two representatives elect three impartial BCB members, one of whom is also named as chair of the BCB and BOC and director of OCB. These three impartial members also comprise Respondent BOC. (See NY City Charter §§ 1171, 1172; NYSCEF Doc. No. 1 ¶ 130 n 16.) 28. Under NYCCBL § 12-310 (2), representatives of the MLC and the City are required to meet at least twice a year to discuss general issues facing Respondents, including those arising out of the administration of OCB's Rules. In reality, the MLC and the City meet regularly to negotiate and collaborate on various issues. 29. The MLC is responsible for negotiating certain citywide benefits like healthcare for the City's public employees. The MLC also supports its constituent unions in their individual negotiations regarding economic and non-economic terms and conditions of employment. 6 6 of 10 FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023 30. While the City's efforts to consolidate titles over the past 50 years has decreased the number of bargaining units in the City, bargaining continues to be complicated by several factors: the disparate needs of different City agencies; the sheer size and complexity of City operations; and the fact that the various City agencies, as well as several other City-based public employers, all bargain through the City's single bargaining representative, the Office of Labor Relations. 31. Thus, despite good faith efforts on all sides, City bargaining simply takes more time, with contracts being executed well past the expiration of prior contracts and sometimes after expiration of the very contract being negotiated. Over the decades, the OCB Rules have reflected this continuing reality. 32. Public employees not only have the right to choose their own employee organization, but they also have a right to bargain collectively through those organizations as well (see NYCCBL § 12-305 ["Public employees shall have the right to self-organization, to form, join or assist public employee organizations, to bargain collectively through certiped employee organizations of their own choosing and shall have the right to refrain from any or all activities." of such (emphasis added)]). 33. Each union therefore has a responsibility to exercise their bargaining unit's right to negotiate terms and conditions of employment. 34. However, public employers are prohibited from modifying the terms and conditions of employment during the pendency of a representation petition, and therefore cannot bargain with a union facing a decertification petition (see DC 37, 69 OCB 23, at *9-16 [BCB 2002]). 7 7 of 10 FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023 35. The relief PERB seeks in this action - to open a decertification window after the expiration of a CBA- will not affect the of labor relations in the but will also only stability City unions' affect the MLC and its member right and responsibility to negotiate with public employers. 36. PERB recognizes that the MLC has a real and substantial interest in the outcome of this proceeding and alleges that it invited the MLC to its investigatory conference held on September 22, 2022, but the MLC chose not to attend (NYSCEF Doc. No. 1 ¶¶ 130-131.) 37. On or about September 13, 2022, I received an email from PERB's General Counsel, Michael Fois, in which I was copied, indicating that Mr. Fois intended to invite the MLC to the investigatory conference as the MLC had an interest in the subject matter. A copy of that email is attached as Exhibit A. 38. However, neither I, nor anyone else at the MLC to my knowledge, subsequently received an invitation to the investigatory conference. Consequently, the MLC did not attend it. 39. I understand that although PERB intends to oppose the MLC's motion to intervene, it does not oppose the MLC's appearance as an amicus curiae. I also understand that Respondents support the MLC's appearance as an intervenor or as an amicus curiae. 40. For the reasons set forth in the accompanying Memorandum of Law, this Court should allow the MLC to intervene in this proceeding because it has a real and substantial interest in it. The Court should also accept the arguments included in the accompanying Memorandum of Law as MLC's motion to dismiss the Verified Petition. To the extent the Court does not dismiss the Verified Petition, it should grant the MLC 30 days from the date of its decision to file an answer. 8 8 of 10 FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023 41. Alternatively, if the Court denies the MLC's motion to intervene, then it should permit it to appear as amicus curiae and accept the arguments in the accompanying Respondents' Memorandum of Law in support of motion to dismiss. To the extent the Court does not dismiss the Verified Petition, it should grant the MLC 30 days from the date of its decision to file an amicus brief in support of Respondents. Dated: Lake Success, New York November 17, 2023 $ eenberg 9 9 of 10 FILED: NEW YORK COUNTY CLERK 11/17/2023 06:47 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2023 WORD COUNT CERTIFICATION I certify that the word count of the foregoing Affirmation, excluding caption and signature block, is 2,289 and complies with the word count limit set forth in 22 NYCRR 202.8-b. The word count was obtained by using the word count feature provided by Microsoft Office. Dated: Lake Success, New York November 17, 2023 Harry G nberg 10 10 of 10