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FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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NEW YORK STATE PUBLIC EMPLOYMENT
RELATIONS BOARD,
Petitioner, Index No. 452305/2023
For an Order and Declaratory Judgment Pursuant to
Article 78 and CPLR 3001
-against-
NEW YORK CITY OFFICE OF COLLECTIVE BARGAINING,
THE NEW YORK CITY BOARD OF COLLECTIVE
BARGAINING, and THE NEW YORK CITY BOARD OF
CERTIFICATION,
Respondents.
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PROPOSED AMICUS BRIEF OF THE ENVIRONMENTAL POLICE BENEVELOENT
ASSOCIATION, INC. (EPBA) IN SUPPORT OF NEW YORK STATE PUBLIC
RELATION BOARD’S PETITION FOR AN ORDER AND DECLARATORY
JUDGEMENT.
Edward L. Freer, Esq.
Davis & Ferber, LLP
Attorneys for Proposed Amicus Curiae
1345 Motor Parkway
Islandia, NY 11749
(t) (631) 543-2900
(f) (631) 543-2987
efreer@DavisFerber.com
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INTRODUCTION
This Amicus brief is submitted in support of the NYS Public Employment Relations
Board’s (“PERB”) petition for a declaratory judgment pursuant to New York Civil Practice Law
and Rules (“CPLR”) Article 78 and CPLR 3001. PERB is seeking a declaratory judgement that
§1-02(g) (the “contract bar rule”) of the Rules of the New York City Office of Collective
Bargaining (“OCB”) is not substantially equivalent to the Taylor Law. For the reasons set forth
here, the EPBA respectfully requests that this Court grant PERB’s petition and order the relief
requested.
Since 2020, the Environmental Police Benevolent Association, Inc. (“EPBA”) has twice
petitioned OCB seeking decertification of LEEBA and certification of EPBA as the bargaining
agent for Environmental Police Officers (“EPOs”) employed by the New York City Department
of Environmental Protection (the “DEP”).1 A majority of EPOs supported the decertification of
LEEBA on both occasions. See Pet. ¶¶ 89, 105. The OCB’s “contract bar rule” prohibits the filing
of a decertification petition once a collective bargaining agreement (“CBA”) has expired. See
OCB Rule § 1-02(g). The OCB, relying on its contract bar rule, dismissed the EPBA’s petitions
solely because they were filed after the EPO’s CBA had expired. See Pet. ¶¶ 92, 111; Pet. Ex. 2:
Record Ex. A (1)(b): OCB Dismissal Letter, R. 15; Record Ex. H (1); SBA 14 OCB2d 7 [BOC
2021], R. 137.
Conversely, the Taylor Law opens a window to for a union to challenge its representation
status after a CBA has expired. PERB Rule of Procedure §201.3 (e) provides that employees can
seek to decertify their union “120 days subsequent to the expiration” of a CBA. Once the PERB
decertification window opens, it does not close until a new CBA is executed, however long that
1
The first petition was filed in October of 2020, and the second filed in May of 2022.
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may take. This rule provides an incentive for a bargaining representative to proactively negotiate
and present a CBA to the union membership for possible ratification, lest it be accused of failing
to represent its members in the collective bargaining process. Undoubtedly, under the provisions
of the Taylor Law, the EPBA could have challenged LEEBA’s representation of the EPOs anytime
since the end of January 2018 going forward. However, under OCB’s contract bar rule, it has been
prohibited from doing so.
As of January 2024, the OCB contract bar rule will have precluded the EPBA from
challenging its representation status for six years, and there is no way to predict when the EPOs
will be able to petition for decertification. Under the Taylor Law, no other public employee
organization in New York State would be in the EPBA’s position, because those organizations
would at least have had the right to challenge their representation status, as the EPBA has sought
to do but has been denied.
If the EPOs were employees of any municipality in New York State other than the City of
New York (the “City”), the Taylor Law would have given the EPBA the right to have their
decertification petitions challenging LEEBA’s status as the authorized bargaining representative
of EPOs considered on their merits, instead of being summarily dismissed on procedural grounds.
PERB has correctly determined that by prohibiting any post-expiration-of-contract decertification,
the OCB contract bar rule denies City public employees their right to petition for a change in their
representation status for an indefinite period, and therefore denies them a substantive right
guaranteed to them by the Taylor Law.
INTERESTS OF AMICUS CURIAE
The Environmental Police Benevolent Association, Inc. (the “EPBA) was formed on or
about November 2019 by police officers (“EPOs”) employed by the New York City Department
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of Environmental Protection (the “DEP”). EPOs are tasked with protecting the City’s water supply
from tampering, and millions of City residents depend on them to ensure that their drinking water
is safe and uncontaminated. Since the events of September 11th, 2001, the responsibilities of EPOs
have only increased to prevent the disastrous consequences that would result from the intentional
contamination of the City’s drinking water supply.
The EPBA was formed due to a growing dissatisfaction with how the EPOs’ current
bargaining unit, the Law Enforcement Employees’ Benevolent Association, Inc. (“LEEBA”) was
representing their interests. Since its inception, the EPBA’s goal has always been the
decertification of LEEBA and the certification of the EPBA as the exclusive bargaining agent for
EPOs. Currently, approximately sixty percent (60%) of the EPOs employed by the DEP have
opted out of LEEBA and are members of EPBA.
EPBA’s dissatisfaction with LEEBA is justified. First, LEEBA has been unable to obtain
a collective bargaining agreement on behalf of the EPOs with the City of New York (the “City”)
since 2017.2 However and more importantly, it is the direct result of the years of misconduct
involving annuity funds under management by LEEBA board members. In July of 2021,
LEEBA’s former treasurer pleaded guilty to conspiring to commit tax evasion and making false
statements to law enforcement.3 This criminal activity, spanning 2014 to 2019, culminated in the
2023 convictions of two former LEEBA board members, the former president and a financial
advisor, for defrauding LEEBA of more than $500,000.00 in annuity funds.4 However, the money
they stole was not LEEBA’s money; it was money that the City had contributed to the annuity
2
The CBA, executed between the City of New York and LEEBA on April 22, 2022, only covered the period from
2010-2017. It was the integration of a prior memorandum of agreement and was expired when it was signed.
3
See https://www.justice.gov/usao-sdny/pr/treasurer-law-enforcement-union-pleads-guilty-tax-evasion-and-lying-
federal-officers (last visited November 1, 2022).
4
See https://www.irs.gov/compliance/criminal-investigation/former-president-and-former-financial-advisor-of-law-
enforcement-union-convicted-of-defrauding-unions-annuity-fund (last visited November 1, 2022).
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fund on behalf of individual EPOs as required by the CBA, and was the functional equivalent of
an employer-sponsored 401(k) retirement account.5
The Taylor Law and the New York City Collective Bargaining Law (the “NYCCBL”)
guarantee public employees in the State of New York, including New York City, the right to
choose their exclusive bargaining representative. See e.g. Taylor Law §§ 200, 204, 208; NYCCBL
§ 12-305 (“Public employees shall have the right…to bargain collectively through certified
employee organizations of their own choosing…”) (emphasis added). When an employee
organization ceases to act for the benefit of its members, those members should have the right to
choose new representatives.
The relief sought by PERB, if granted by the Court, would allow EPOs an opportunity to
choose a new bargaining representative, such as EPBA, that would be trustworthy and responsive
to their needs and provide adequate representation during the collective bargaining process. The
Amicus here can provide the Court with the perspective of the EPOs who have been denied the
opportunity, guaranteed to them under the Taylor Law, to have a bargaining agent of their own
choosing and who will be affected by the Court’s determination. Sufficient interest has been
shown and, as such, EPBA respectfully requests that the Court consider this proposed Amicus
brief.
ARGUMENT
A. PERB’S interpretation of the Taylor Law should prevail as it is accorded deference
in this area.
It is black letter law that “PERB is the agency charged with interpreting the [Taylor Law],
is accorded deference in matters falling within its area of expertise.” Matter of Bd. of Educ. Of
5
See https://www.irs.gov/compliance/criminal-investigation/former-president-and-former-financial-advisor-of-law-
enforcement-union-convicted-of-defrauding-unions-annuity-fund (last visited November 1, 2022).
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City Sch. Dist. of City of NY v NYS Pub. Empl. Relations Bd., 75 NY2d 660, 666 [1990]. See also
Matter of Kent v. Lefkowitz, 27 NY3d 499, 506 [2016]; Matter of Town of Islip v. NYS Pub. Empl.
Relations Bd., 23 NY3d 482, 492 [2014]; Matter of Poughkeepsie Professional Firefighters’ Assn.
v. NYS Publ. Empl. Relations Bd., 6 NYS3d 514, 522 [2006].
Here, PERB has made the determination that the OCB’s contract bar rule is not
substantially equivalent to the Taylor Law. As ‘“the agency charged with implementing the
fundamental policies of the Taylor Law, [PERB] is presumed to have developed an expertise and
judgement that requires [courts] to accept’ its decisions with respect to matters within its
competence.” Matter of Chenango Forks Cent. Sch. Dist. v. NYS Publ. Empl. Relations Bd., 21
NY3d 255, 265 [2013] (quoting Matter of Inc. Vil. of Lynbrook v. NYS Publ. Empl Relations Bd.,
48 NY2d 398, 404 [1979]).
Because PERB’s decision that the OCB contract bar rule is not substantially equivalent to
the Taylor Law is based on the interpretation of the Taylor Law and its accompanying rules and
procedures, it is clearly a matter within PERB’s competence, and the OCB should be bound by
PERB’s determination.
B. PERB’s conclusion that the City’s “contract bar rule” is not substantially equivalent
to the Taylor Law should be affirmed.
When the substantive rights of bargaining unit members are denied, PERB has held that a
local board’s implementation of its rules and procedures was not substantially equivalent to
PERB’s. For instance, PERB found noncompliance in a local board’s failure to give a rival union
notice to participate in a fact-finding meeting or to submit proof in the form of documents and
affidavits, which resulted in the dismissal of the rival union’s petition. (See In the Matter of The
Petition of the Teamsters Local Union 693, 19 PERB ¶3068). Here, there is no question that a
substantive right of the EPBA members, the right to choose their own authorized bargaining
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representative, has been and continues to be denied because of the OCB’s dismissal of the
decertification petition filed by the EPBA in May of 2022.
Taylor Law §212 allows local governments, such as New York City, to establish their own
local boards to administer the Taylor Law. However, the Taylor Law also “requires that the
[NYCCBL] be ‘substantially equivalent’ to the ‘provisions and procedures’ of the Taylor Law
itself.” Mayor of City of NY, 9 NY3d at 28 (quoting Taylor Law §§ 212.1, 212.2). See also PBA,
97 NY2d at 382-383. When §212 of the Taylor Law was enacted, it gave NYC OCB the flexibility
to continue the public employee relations system enacted before the Taylor Law and did not require
a pre-determination by PERB that OCB’s provisions and procedures were substantially equivalent
to those of PERB. (See The Joint Legislative Committee on the Taylor Law (Public Employee’s
Fair Employment Act) 1971-72 Report, State of New York Legislative Document (1972)- Number
25, p.16. However, OCB’s provisions and procedures are not exempt from the requirement to be
substantially equivalent to PERB.
As set forth in PERB’s Memorandum of Law in Support of Verified Petition, Taylor Law
§212 “requires [PERB] to determine whether the local board is continuing to implement the
purposes and protections of the [Taylor Law], under its local law and procedures, in a manner that
is substantially equivalent to what the [Taylor Law] promises to all of New York’s Public
Employees.” Nassau Community, 30 PERB ¶ 3003, 3004. See also Nassau County Corr. Officers
Benevolent Assn., Inc., 8 PERB ¶ 3068, 3121 [1975] (“Nassau County”) (where it is allege[d] that
the local board’s procedures have resulted in a denial of Taylor Law rights, [PERB] is obligated
to review the implementation of such local government procedures”); Mayor of the City of NY, 9
NY3d at 28-29; NYS Nurses Assn., 130 AD3d at 31, n 3. If PERB determines that a local
government procedure is not substantially equivalent to the Taylor Law, under Taylor Law §212.2
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PERB may commence an action, as it did here, seeking a declaratory judgment that the local
government procedure in question is not substantially equivalent to the Taylor Law.
The contract bar rule found in OCB Rule §1.02(g) provides that under no circumstances
may a petition for decertification be filed after the expiration of an agreement. On its face, the
OCB’s contract bar rule is not substantially equivalent to the contract bar rule found in PERB Rule
of Procedure §201.3(e). The former prohibits any decertification petition after expiration of an
agreement. The latter allows decertification petitions at any time beyond 120 days after expiration
of an agreement until a new agreement is reached. It is indisputable that the OCB’s contract bar
rule eliminates a substantive right that the EPBA and other labor organizations would enjoy under
the Taylor Law: the ongoing right to challenge the representation status of the incumbent union
once the agreement expires. Therefore, OCB’s contract bar rule is not substantially equivalent to
the contract bar rule found in the Taylor Law.
C. The relief sought by PERB should be granted.
This Court should issue relief sought by PERB and issue a declaratory judgement pursuant
to Taylor Law §212.2 that OCB’s implementation of the NYCCBL is not substantially equivalent
to the Taylor Law because of OCB’s current contract bar rule prohibits any post-expiration-of-
contract decertification.
There is no merit to OCB’s argument that a determination that OCB Rule § 1-02(g) must
be identical (emphasis added) to the PERB contract bar rule would provide an almost unlimited
opportunity to challenge the certified bargaining representative of 85 bargaining units, which
would in turn lengthen and destabilize the bargaining process and stall substantive negotiations in
NYC. Pet. Ex. 2: Record Ex. D; OCB Motion to Dismiss, P. 14, R. 47. First, PERB never decided
that the OCB contract bar rule must be identical (emphasis added) to PERB’s contract bar rule.
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PERB simply concluded that according to Taylor Law §212.2 the OCB rule must be substantially
equivalent to the Taylor Law, and it is not. Second, OCB’s argument that by permitting a post-
expiration-of-contract decertification it would provide NYC public employees an almost unlimited
opportunity to decertify was correctly rejected by PERB and should be rejected by this Court as
well.
As PERB stated, a decertification petition does not mandate decertification, it just creates
an opportunity for employees to petition for decertification. Ex. 7, PERB Memorandum of Law,
P. 23. For the past 6 years, the EPBA has been seeking an opportunity to be heard on a
decertification petition. If EPBA were a union anywhere else in New York State, by now it would
have had an opportunity to be heard that petition. However, due to the OCB’s contract bar rule,
that opportunity, and a substantive right of EPBA members, has been denied. To prevent the
further denial of EPBA’s substantive rights and allow it an opportunity to be heard on
decertification, the Court should grant the relief sought by PERB.
CONCLUSION
Based on the the foregoing, it is respectfully requested that the Court grant the relief sought
by the Petitioner and issue an order that OCB apply the PERB contract bar rule with respect to the
May 2022 decertification petition filed by EPBA.
Dated: Islandia, New York
November 16, 2023
DAVIS & FERBER, LLP
/Edward L. Freer/
Edward L. Freer, Esq.
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Attorneys for Proposed Amicus Curiae
Environmental Police Benevolent
Association, Inc.
1345 Motor Parkway
Islandia, New York 11749
T: (631) 543-2900
F: (631) 543-2987
E: efreer@davisferber.com
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Supreme Court of the State of New York
New York County
Printing Specifications Statement
IT IS hereby certified pursuant to 22 NYCRR § 1250.8 (j) that the foregoing Amicus
Curiae brief was prepared on a computer using Microsoft Word. A monospaced typeface was
used, as follows:
Name of Typeface: Times New Roman
Point Size: 12 pt.
Line Spacing: Double
The total number of words in the brief, inclusive of point headings and footnotes and exclusive
of signature blocks and pages including the table of contents, table of citations, proof of service,
certificate of compliance, or any addendum authorized pursuant to 22 NYCRR 1250.8 (k), is
2,413, as calculated by the word processing system used to prepare the brief.
Dated: November 17, 2023
Islandia, New York
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Preview
FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, Petitioner, Index No. 452305/2023 For an Order and Declaratory Judgment Pursuant to Article 78 and CPLR 3001 -against- NEW YORK CITY OFFICE OF COLLECTIVE BARGAINING, THE NEW YORK CITY BOARD OF COLLECTIVE BARGAINING, and THE NEW YORK CITY BOARD OF CERTIFICATION, Respondents. -------------------------------------------------------------------------X PROPOSED AMICUS BRIEF OF THE ENVIRONMENTAL POLICE BENEVELOENT ASSOCIATION, INC. (EPBA) IN SUPPORT OF NEW YORK STATE PUBLIC RELATION BOARD’S PETITION FOR AN ORDER AND DECLARATORY JUDGEMENT. Edward L. Freer, Esq. Davis & Ferber, LLP Attorneys for Proposed Amicus Curiae 1345 Motor Parkway Islandia, NY 11749 (t) (631) 543-2900 (f) (631) 543-2987 efreer@DavisFerber.com 1 1 of 11 FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 INTRODUCTION This Amicus brief is submitted in support of the NYS Public Employment Relations Board’s (“PERB”) petition for a declaratory judgment pursuant to New York Civil Practice Law and Rules (“CPLR”) Article 78 and CPLR 3001. PERB is seeking a declaratory judgement that §1-02(g) (the “contract bar rule”) of the Rules of the New York City Office of Collective Bargaining (“OCB”) is not substantially equivalent to the Taylor Law. For the reasons set forth here, the EPBA respectfully requests that this Court grant PERB’s petition and order the relief requested. Since 2020, the Environmental Police Benevolent Association, Inc. (“EPBA”) has twice petitioned OCB seeking decertification of LEEBA and certification of EPBA as the bargaining agent for Environmental Police Officers (“EPOs”) employed by the New York City Department of Environmental Protection (the “DEP”).1 A majority of EPOs supported the decertification of LEEBA on both occasions. See Pet. ¶¶ 89, 105. The OCB’s “contract bar rule” prohibits the filing of a decertification petition once a collective bargaining agreement (“CBA”) has expired. See OCB Rule § 1-02(g). The OCB, relying on its contract bar rule, dismissed the EPBA’s petitions solely because they were filed after the EPO’s CBA had expired. See Pet. ¶¶ 92, 111; Pet. Ex. 2: Record Ex. A (1)(b): OCB Dismissal Letter, R. 15; Record Ex. H (1); SBA 14 OCB2d 7 [BOC 2021], R. 137. Conversely, the Taylor Law opens a window to for a union to challenge its representation status after a CBA has expired. PERB Rule of Procedure §201.3 (e) provides that employees can seek to decertify their union “120 days subsequent to the expiration” of a CBA. Once the PERB decertification window opens, it does not close until a new CBA is executed, however long that 1 The first petition was filed in October of 2020, and the second filed in May of 2022. 2 2 of 11 FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 may take. This rule provides an incentive for a bargaining representative to proactively negotiate and present a CBA to the union membership for possible ratification, lest it be accused of failing to represent its members in the collective bargaining process. Undoubtedly, under the provisions of the Taylor Law, the EPBA could have challenged LEEBA’s representation of the EPOs anytime since the end of January 2018 going forward. However, under OCB’s contract bar rule, it has been prohibited from doing so. As of January 2024, the OCB contract bar rule will have precluded the EPBA from challenging its representation status for six years, and there is no way to predict when the EPOs will be able to petition for decertification. Under the Taylor Law, no other public employee organization in New York State would be in the EPBA’s position, because those organizations would at least have had the right to challenge their representation status, as the EPBA has sought to do but has been denied. If the EPOs were employees of any municipality in New York State other than the City of New York (the “City”), the Taylor Law would have given the EPBA the right to have their decertification petitions challenging LEEBA’s status as the authorized bargaining representative of EPOs considered on their merits, instead of being summarily dismissed on procedural grounds. PERB has correctly determined that by prohibiting any post-expiration-of-contract decertification, the OCB contract bar rule denies City public employees their right to petition for a change in their representation status for an indefinite period, and therefore denies them a substantive right guaranteed to them by the Taylor Law. INTERESTS OF AMICUS CURIAE The Environmental Police Benevolent Association, Inc. (the “EPBA) was formed on or about November 2019 by police officers (“EPOs”) employed by the New York City Department 3 3 of 11 FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 of Environmental Protection (the “DEP”). EPOs are tasked with protecting the City’s water supply from tampering, and millions of City residents depend on them to ensure that their drinking water is safe and uncontaminated. Since the events of September 11th, 2001, the responsibilities of EPOs have only increased to prevent the disastrous consequences that would result from the intentional contamination of the City’s drinking water supply. The EPBA was formed due to a growing dissatisfaction with how the EPOs’ current bargaining unit, the Law Enforcement Employees’ Benevolent Association, Inc. (“LEEBA”) was representing their interests. Since its inception, the EPBA’s goal has always been the decertification of LEEBA and the certification of the EPBA as the exclusive bargaining agent for EPOs. Currently, approximately sixty percent (60%) of the EPOs employed by the DEP have opted out of LEEBA and are members of EPBA. EPBA’s dissatisfaction with LEEBA is justified. First, LEEBA has been unable to obtain a collective bargaining agreement on behalf of the EPOs with the City of New York (the “City”) since 2017.2 However and more importantly, it is the direct result of the years of misconduct involving annuity funds under management by LEEBA board members. In July of 2021, LEEBA’s former treasurer pleaded guilty to conspiring to commit tax evasion and making false statements to law enforcement.3 This criminal activity, spanning 2014 to 2019, culminated in the 2023 convictions of two former LEEBA board members, the former president and a financial advisor, for defrauding LEEBA of more than $500,000.00 in annuity funds.4 However, the money they stole was not LEEBA’s money; it was money that the City had contributed to the annuity 2 The CBA, executed between the City of New York and LEEBA on April 22, 2022, only covered the period from 2010-2017. It was the integration of a prior memorandum of agreement and was expired when it was signed. 3 See https://www.justice.gov/usao-sdny/pr/treasurer-law-enforcement-union-pleads-guilty-tax-evasion-and-lying- federal-officers (last visited November 1, 2022). 4 See https://www.irs.gov/compliance/criminal-investigation/former-president-and-former-financial-advisor-of-law- enforcement-union-convicted-of-defrauding-unions-annuity-fund (last visited November 1, 2022). 4 4 of 11 FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 fund on behalf of individual EPOs as required by the CBA, and was the functional equivalent of an employer-sponsored 401(k) retirement account.5 The Taylor Law and the New York City Collective Bargaining Law (the “NYCCBL”) guarantee public employees in the State of New York, including New York City, the right to choose their exclusive bargaining representative. See e.g. Taylor Law §§ 200, 204, 208; NYCCBL § 12-305 (“Public employees shall have the right…to bargain collectively through certified employee organizations of their own choosing…”) (emphasis added). When an employee organization ceases to act for the benefit of its members, those members should have the right to choose new representatives. The relief sought by PERB, if granted by the Court, would allow EPOs an opportunity to choose a new bargaining representative, such as EPBA, that would be trustworthy and responsive to their needs and provide adequate representation during the collective bargaining process. The Amicus here can provide the Court with the perspective of the EPOs who have been denied the opportunity, guaranteed to them under the Taylor Law, to have a bargaining agent of their own choosing and who will be affected by the Court’s determination. Sufficient interest has been shown and, as such, EPBA respectfully requests that the Court consider this proposed Amicus brief. ARGUMENT A. PERB’S interpretation of the Taylor Law should prevail as it is accorded deference in this area. It is black letter law that “PERB is the agency charged with interpreting the [Taylor Law], is accorded deference in matters falling within its area of expertise.” Matter of Bd. of Educ. Of 5 See https://www.irs.gov/compliance/criminal-investigation/former-president-and-former-financial-advisor-of-law- enforcement-union-convicted-of-defrauding-unions-annuity-fund (last visited November 1, 2022). 5 5 of 11 FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 City Sch. Dist. of City of NY v NYS Pub. Empl. Relations Bd., 75 NY2d 660, 666 [1990]. See also Matter of Kent v. Lefkowitz, 27 NY3d 499, 506 [2016]; Matter of Town of Islip v. NYS Pub. Empl. Relations Bd., 23 NY3d 482, 492 [2014]; Matter of Poughkeepsie Professional Firefighters’ Assn. v. NYS Publ. Empl. Relations Bd., 6 NYS3d 514, 522 [2006]. Here, PERB has made the determination that the OCB’s contract bar rule is not substantially equivalent to the Taylor Law. As ‘“the agency charged with implementing the fundamental policies of the Taylor Law, [PERB] is presumed to have developed an expertise and judgement that requires [courts] to accept’ its decisions with respect to matters within its competence.” Matter of Chenango Forks Cent. Sch. Dist. v. NYS Publ. Empl. Relations Bd., 21 NY3d 255, 265 [2013] (quoting Matter of Inc. Vil. of Lynbrook v. NYS Publ. Empl Relations Bd., 48 NY2d 398, 404 [1979]). Because PERB’s decision that the OCB contract bar rule is not substantially equivalent to the Taylor Law is based on the interpretation of the Taylor Law and its accompanying rules and procedures, it is clearly a matter within PERB’s competence, and the OCB should be bound by PERB’s determination. B. PERB’s conclusion that the City’s “contract bar rule” is not substantially equivalent to the Taylor Law should be affirmed. When the substantive rights of bargaining unit members are denied, PERB has held that a local board’s implementation of its rules and procedures was not substantially equivalent to PERB’s. For instance, PERB found noncompliance in a local board’s failure to give a rival union notice to participate in a fact-finding meeting or to submit proof in the form of documents and affidavits, which resulted in the dismissal of the rival union’s petition. (See In the Matter of The Petition of the Teamsters Local Union 693, 19 PERB ¶3068). Here, there is no question that a substantive right of the EPBA members, the right to choose their own authorized bargaining 6 6 of 11 FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 representative, has been and continues to be denied because of the OCB’s dismissal of the decertification petition filed by the EPBA in May of 2022. Taylor Law §212 allows local governments, such as New York City, to establish their own local boards to administer the Taylor Law. However, the Taylor Law also “requires that the [NYCCBL] be ‘substantially equivalent’ to the ‘provisions and procedures’ of the Taylor Law itself.” Mayor of City of NY, 9 NY3d at 28 (quoting Taylor Law §§ 212.1, 212.2). See also PBA, 97 NY2d at 382-383. When §212 of the Taylor Law was enacted, it gave NYC OCB the flexibility to continue the public employee relations system enacted before the Taylor Law and did not require a pre-determination by PERB that OCB’s provisions and procedures were substantially equivalent to those of PERB. (See The Joint Legislative Committee on the Taylor Law (Public Employee’s Fair Employment Act) 1971-72 Report, State of New York Legislative Document (1972)- Number 25, p.16. However, OCB’s provisions and procedures are not exempt from the requirement to be substantially equivalent to PERB. As set forth in PERB’s Memorandum of Law in Support of Verified Petition, Taylor Law §212 “requires [PERB] to determine whether the local board is continuing to implement the purposes and protections of the [Taylor Law], under its local law and procedures, in a manner that is substantially equivalent to what the [Taylor Law] promises to all of New York’s Public Employees.” Nassau Community, 30 PERB ¶ 3003, 3004. See also Nassau County Corr. Officers Benevolent Assn., Inc., 8 PERB ¶ 3068, 3121 [1975] (“Nassau County”) (where it is allege[d] that the local board’s procedures have resulted in a denial of Taylor Law rights, [PERB] is obligated to review the implementation of such local government procedures”); Mayor of the City of NY, 9 NY3d at 28-29; NYS Nurses Assn., 130 AD3d at 31, n 3. If PERB determines that a local government procedure is not substantially equivalent to the Taylor Law, under Taylor Law §212.2 7 7 of 11 FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 PERB may commence an action, as it did here, seeking a declaratory judgment that the local government procedure in question is not substantially equivalent to the Taylor Law. The contract bar rule found in OCB Rule §1.02(g) provides that under no circumstances may a petition for decertification be filed after the expiration of an agreement. On its face, the OCB’s contract bar rule is not substantially equivalent to the contract bar rule found in PERB Rule of Procedure §201.3(e). The former prohibits any decertification petition after expiration of an agreement. The latter allows decertification petitions at any time beyond 120 days after expiration of an agreement until a new agreement is reached. It is indisputable that the OCB’s contract bar rule eliminates a substantive right that the EPBA and other labor organizations would enjoy under the Taylor Law: the ongoing right to challenge the representation status of the incumbent union once the agreement expires. Therefore, OCB’s contract bar rule is not substantially equivalent to the contract bar rule found in the Taylor Law. C. The relief sought by PERB should be granted. This Court should issue relief sought by PERB and issue a declaratory judgement pursuant to Taylor Law §212.2 that OCB’s implementation of the NYCCBL is not substantially equivalent to the Taylor Law because of OCB’s current contract bar rule prohibits any post-expiration-of- contract decertification. There is no merit to OCB’s argument that a determination that OCB Rule § 1-02(g) must be identical (emphasis added) to the PERB contract bar rule would provide an almost unlimited opportunity to challenge the certified bargaining representative of 85 bargaining units, which would in turn lengthen and destabilize the bargaining process and stall substantive negotiations in NYC. Pet. Ex. 2: Record Ex. D; OCB Motion to Dismiss, P. 14, R. 47. First, PERB never decided that the OCB contract bar rule must be identical (emphasis added) to PERB’s contract bar rule. 8 8 of 11 FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 PERB simply concluded that according to Taylor Law §212.2 the OCB rule must be substantially equivalent to the Taylor Law, and it is not. Second, OCB’s argument that by permitting a post- expiration-of-contract decertification it would provide NYC public employees an almost unlimited opportunity to decertify was correctly rejected by PERB and should be rejected by this Court as well. As PERB stated, a decertification petition does not mandate decertification, it just creates an opportunity for employees to petition for decertification. Ex. 7, PERB Memorandum of Law, P. 23. For the past 6 years, the EPBA has been seeking an opportunity to be heard on a decertification petition. If EPBA were a union anywhere else in New York State, by now it would have had an opportunity to be heard that petition. However, due to the OCB’s contract bar rule, that opportunity, and a substantive right of EPBA members, has been denied. To prevent the further denial of EPBA’s substantive rights and allow it an opportunity to be heard on decertification, the Court should grant the relief sought by PERB. CONCLUSION Based on the the foregoing, it is respectfully requested that the Court grant the relief sought by the Petitioner and issue an order that OCB apply the PERB contract bar rule with respect to the May 2022 decertification petition filed by EPBA. Dated: Islandia, New York November 16, 2023 DAVIS & FERBER, LLP /Edward L. Freer/ Edward L. Freer, Esq. 9 9 of 11 FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 Attorneys for Proposed Amicus Curiae Environmental Police Benevolent Association, Inc. 1345 Motor Parkway Islandia, New York 11749 T: (631) 543-2900 F: (631) 543-2987 E: efreer@davisferber.com 10 10 of 11 FILED: NEW YORK COUNTY CLERK 11/17/2023 03:32 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/17/2023 Supreme Court of the State of New York New York County Printing Specifications Statement IT IS hereby certified pursuant to 22 NYCRR § 1250.8 (j) that the foregoing Amicus Curiae brief was prepared on a computer using Microsoft Word. A monospaced typeface was used, as follows: Name of Typeface: Times New Roman Point Size: 12 pt. Line Spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of signature blocks and pages including the table of contents, table of citations, proof of service, certificate of compliance, or any addendum authorized pursuant to 22 NYCRR 1250.8 (k), is 2,413, as calculated by the word processing system used to prepare the brief. Dated: November 17, 2023 Islandia, New York 11 11 of 11