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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
NEW YORK STATE PUBLIC EMPLOYMENT
RELATIONS BOARD,
Petitioner,
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.
New York County Index No. 452305/2023
PETITIONER’S MEMORANDUM OF LAW IN
OPPOSITION TO MOTIONS TO DISMISS
MICHAEL T. FOIS
General Counsel
Attorney for Petitioner
NYS Public Employment
Relations Board
PO Box 2074
Empire State Plaza
Agency Bldg. 2, 20th floor
Albany, NY 12220-0074
Tel: 518-457-2578
Michael.Fois@perb.ny.gov
December 20, 2023
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
PRELIMINARY STATEMENT ............................................................................... 1
ARGUMENT .............................................................................................................7
POINT I......................................................................................................................7
THE FAILURE TO BE SUBSTANTIALLY
EQUIVALENT IS A CONTINUING
VIOLATION OF LAW FOR WHICH THERE IS
NO STATUTE OF LIMITATIONS........................................................... 7
POINT II. .................................................................................................................14
THIS ACTION IS TIMELY IF NYCCBL
§ 12-308 (a) APPLIES .............................................................................14
POINT III. ................................................................................................................16
THIS ACTION IS TIMELY UNDER ANY
STATUTE OF LIMITATIONS ...............................................................16
A. The OCB Contract Bar Rule Does Not Commence the Statute of
Limitations .....................................................................................................18
B. No Act of Respondents Provide the Requisite Notice Triggering Claim
Accrual ...........................................................................................................20
i. Nothing Cited by Respondents Demonstrates Notice .........................21
ii. No Decision Cited by Respondents Provided Notice .........................22
CONCLUSION ........................................................................................................28
PRINTING SPECIFICATIONS STATEMENT .....................................................29
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TABLE OF AUTHORITIES
Page(s)
Cases
Matter of Askew v NYC Dept. of Envtl. Protection, 24 AD3d 544
[2d Dept 2005], lv denied 7 NY3d 702 [2006] .............................................10, 12
Matter of Bd. of Educ. of City Sch. Dist. of City of NY v NYS Pub.
Empl. Relations Bd., 75 NY2d 660 [1990] ........................................................... 8
Matter of Brennan Ctr. for Justice at NYU Sch. of Law v NYS Bd. of Elections,
52 Misc3d 246 [Sup Ct, Albany County 2016], affd 159 AD3d 1299
[3d Dept 2018] ....................................................................................................11
Ballin v Ballin, 204 AD2d 1078 [4th Dept 1994] ....................................................13
Brooks Bros. v Natl. Labor Relations Bd., 348 US 96 [1954].................................23
Matter of Burke v Sugarman, 35 NY2d 39 [1974] ............................................10, 12
Matter of Cash v Bates, 301 NY 258 [1950] ...........................................................10
Matter of City of Saratoga Springs v City of Saratoga Springs Civ. Serv. Commn.,
90 AD3d 1398 [3d Dept 2011] .....................................................................10, 12
Matter of Civ. Serv. Tech. Guild, Local 375 v MacDonald,
Index No. 116355/95 [Sup Ct, New York County, Jan. 18, 1997] (Cahn, J.),
affd 249 AD2d 74 [1st Dept 1998] .....................................................................25
Matter of Fedn. of Mental Health Ctrs., Inc. v DeBuono,
275 AD2d 557 [3rd Dept 2000] ..........................................................................11
Matter of Colgate-Palmolive-Peet Co. v Joseph, 308 NY 333 [1955]...................... 8
Matter of Condo Units v NYS Div. of Hous. & Community Renewal,
4 AD3d 424 [2d Dept 2004] ...............................................................................13
Matter of DeCintio v Cohalan, 518 AD3d 872 [2d Dept 2005] ..............................13
Ferraro v NYC Dept. of Educ., 115 AD3d 497 [1st Dept 2014] ............................... 9
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Flintlock Construction Services, LLC v Rubin, Fiorella & Friedman, LLP,
188 AD3d 530 [1st Dept 2020] ..........................................................................16
HHC PBA, Inc. v NYC Off. of Collective Bargaining,
54 Misc3d 1210(A) [Sup Ct, New York County 2017] .....................................15
Hernandez v State of New York, 173 AD3d 105 [3d Dept 2019] .............................. 2
Matter of Ind. Laborers Union of NYC v Off. of Collective Bargaining,
Index No. 113973/01 [Sup Ct, New York County, Apr. 3, 2002]
(DeGrasse, J.) ......................................................................................................25
Matter of Janke v Community Sch. Bd., 186 AD2d 190 [2d Dept 1992] ................ 13
Matter of Klapak v Blum, 65 NY2d 670 [1985] ........................................................ 5
Matter of Kent v Lefkowitz, 27 NY3d 499 [2016] ..................................................... 8
Matter of Lippold v Bd. of Educ., 67 Misc2d 499
[Sup Ct, Kings County 1971] ............................................................................13
Matter of Mahinda v City of New York, 91 AD3d 564 [1st Dept 2012].................. 16
Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104 [1945] ............... 8
Myers v. Schneiderman, 30 NY3d 1 [2017] .............................................................. 4
Natl. Labor Relations Bd. v Appalachian Electric P. Co.,
140 F2d 217 [4th Cir 1944] ................................................................................23
NYC Health & Hosps. Corp. v McBarnette, 84 NY2d 194 [1994] ........................20
Matter of Patrolman’s Benev. Assn. of the Vil. of Spring Val. v Goldin,
266 AD2d 294 [2d Dept 1999] ...........................................................................11
Matter of Patrolman’s Benev. Assn. of Southampton Town, Inc. v Town of
Southampton and Southampton Police Dept., 2009 WL 4009126,
2009 NY Slip Op. 32660(U) [Sup Ct, Suffolk County, October 29, 2009] ....... 11
Matter of Powers v La Guardia, 292 NY 695 [1944] .............................................10
Petit v Dept. of Educ. of City of NY, 177 AD3d 402 [1st Dept 2019] ....................... 9
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Matter of Poughkeepsie Professional Firefighters’ Assn. v NYS Pub. Empl.
Relations Bd., 6 NY3d 514 [2006] ....................................................................... 8
Matter of Raffaele v Town of Orangetown, 224 AD2d 430 [2d Dept 2020] ........... 17
Tompkins v State of New York, 7 NY2d 906 [1960]…………………………………9
Matter of Town of Huntington v County of Suffolk, 79 AD3d 207 [2d Dept 2010],
lv denied 17 NY3d 778 [2011]……………………..………………….……9, 12
Matter of Town of Islip v NYS Pub. Empl. Relations Bd.,
23 NY3d 482 [2014] .............................................................................................8
Waterside Assoc. v NYS Dept. of Envtl. Conservation,
127 AD2d 663 [2d Dept 1987] ...........................................................................11
Walsh v Police Commr. of City of NY, 159 NYS2d 6
[Sup Ct, New York County 1956] ................................................................11, 12
Matter of W. Irondequoit Teachers Assn. v Helsby,
35 NY2d 46 [1974] ...............................................................................................8
Udall v Tallman, 380 US 1 [1965]............................................................................. 8
Vadell v City of NY Health and Hospitals Corp.,
233 AD2d 224 [1st Dept 1996] ..........................................................................16
PERB Determinations
Nassau Community Coll. Fern. of Teachers,
30 PERB ¶ 3003 [1997]……………………………………………….................8
Respondents Determinations
COBA, 33 OCB2d 23 [BCB 2021] ........................................................................... 9
COBA, 14 OCB2d 19 [BCB 2021] ...........................................................................7
COBA, 12 OCB2d 28 [BCB 2019] ........................................................................... 7
FTWU, 16 OCB2d 26 [BOC 2023]……….……………………………....6, 7, 21, 27
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Ind. Laborers Union of NYC, 68 OCB 6 [BOC 2001],
affd sub nom. Matter of Ind. Laborers Union of NYC v
Off. of Collective Bargaining, Index No. 113973/01
[Sup Ct, New York County, Apr. 3, 2002] (DeGrasse, J.)……..……….....……24
LEEBA, 9 OCB2d 26 [BOC 2016]…………………………………..……25, 26, 28
Local 1180, CWA, 40 OCB 18 [BOC 1987]……………………….……………..26
Local 832, IBT, 10 OCB 27 [BOC 1972],
reconsideration denied 10 OCB 73 [BOC 1972]………………………...……23
Morales, 5 OCB2d 28 [BCB 2012], affd sub nom. Matter of United
Fedn. of Teachers, Local 2, AFT, AFL-CIO v NYC Bd. of Collective
Bargaining, 51 Misc3d 817, [Sup Ct, New York County 2016], affd
154 AD3d 548 [1st Dept 2017] ..........................................................................16
NYSNA, 2 OCB 68 [BOC 1968] ………………………...………………….…22, 23
NYSNA, 4 OCB2d 23 [BCB 2011] ............................................................................ 7
Raby, 71 OCB 14 [BCB 2003], affd sub nom. Matter of Raby v Off. of
Collective Bargaining, Index No. 109481/03
[Sup Ct, New York County Sept. 12, 2003] (Beeler, J.)………………………..16
SSEU, 13 OCB2d 18 [BCB 2020] ..........................................................................14
Term. Empls. Local 832, IBT, 10 OCB 27 [BOC 1972],
reconsideration denied 10 OCB 73 [BOC 1972]…………………..…………..26
UFA, 4 OCB2d 3 [BCB 2011] (dissent), majority affd sub nom.
Matter of Uniformed Firefighters v City of New York, Index No. 101817/2011
[Sup Ct, New York County Oct. 4, 2011] (Huff, J.)………………..…………..8
Statutes and Rules
Civil Practive Law and Rules
CPLR Article 78 ...........................................................................1, 10, 12, 13, 14
CPLR 3001............................................................................................................1
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New York City Collective Bargaining Law, NYC Admin. Code, Title 12, Ch. 3
NYCCBL .....................................................................................................passim
NYCCBL § 12-308 (a) .................................................................................14, 15
Public Employees’ Fair Employment Act, Civil Service Law, Article 14
Taylor Law ...................................................................................................passim
Taylor Law § 212.2 ......................................................................................passim
PERB’s Rules of Procedure, 4 NYCRR 200, et seq.
PERB Contract Bar Rule(e)….………………………………..…………..passim
Rules of the OCB, Rules of the City of New York, Title 61, Chapter 1
OCB Contract Bar Rule (§ 1-02 (g))…………………………..…………..passim
Other Authority
New York State Constitution .......................................................................1, 2, 9, 11
Robert Helsby, PERB Chair, New York State Public Employment
Labor Relations: A Second Look, Speech Before the ILR Conference
(Nov. 15, 1967), in NEW YORK STATE PUBLIC EMPLOYMENT
LABOR RELATIONS (Edward Levin ed., 1968)…………………….………22
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PRELIMINARY STATEMENT
This memorandum of law is submitted on behalf of Petitioner New York State
Public Employment Relations Board (“PERB”) in oppositions to the motions to
dismiss its Verified Petition pursuant to New York Civil Practice Law and Rules
(“CPLR”) 3001 and Article 78, as provided for pursuant to the Public Employees’
Fair Employment Act, Civil Service Law, Article 14, § 200 et seq. (“Taylor Law”).1
PERB seeks a declaratory judgment pursuant to Taylor Law § 212.2 that the
practices of Respondents New York City Office of Collective Bargaining (“OCB”)
and its constituent boards, Respondent Board of Certification (“BOC”) and
Respondent Board of Collective Bargaining (“BCB”) are not substantially
equivalent with those of the Taylor Law.2
The New York State Constitution enshrines employees’ right to collective
bargaining.3 The Taylor Law guards that right for public employees. Localities are
1
This memorandum only expressly addresses the motion to dismiss of Respondents as they are
the only parties with standing to file such motion. Should this Court consider the motions to
dismiss filed by the proposed intervenors, they should also be denied for the reasons herein.
2
The main relief sought, the declaration, is only available under CPLR 3001. This matter was
filed as a hybrid also under Article 78 because under Article 78, this Court is free to craft an order
specifying how Respondents are to proceed to become substantially equivalent. Absent Article 78
relief, repeated litigation likely will ensue as to what the declaratory judgment requires.
3
“In no uncertain terms, N.Y. Constitution, article I, § 17 expressly bestows upon ‘employees’ an
unqualified ‘right to organize and to bargain collectively through representatives of their own
choosing.’ This expressly enumerated right – adopted as a result of the Constitutional Convention
of 1938 and ratification by the electorate – is enshrined in the New York Bill of Rights, providing
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allowed to institute and administer their own local version of the Taylor Law
provided such laws are continually implemented in a manner substantially
equivalent to the Taylor Law. See Taylor Law § 212. Respondents administer the
New York City (“City”) local law, the New York City Collective Bargaining Law
(“NYCCBL”).
The foundation of collective bargaining is employees’ right to choose their
bargaining representative. The process by which employees choose their bargaining
representative is known as certification, and the process by which employees may
choose to end that relationship is known as decertification. It is undisputed that
employees have the right to decertify their bargaining representative. No restrictions
on employees’ right to decertify exists in the relevant statutes, the Taylor Law and
the NYCCBL. However, when employees can exercise their decertification rights
can be restricted in order to allow for a degree of stability in the bargaining
relationship; this is known as the “contract bar” doctrine.
At issue in this case is whether Respondents’ practice as to the application of
its contact bar (“OCB Contract Bar Rule”) is substantially equivalent to that of the
strong evidence that the right was regarded as fundamental.” Hernandez v State of New York, 173
AD3d 105, 113 [3d Dept 2019] (citations omitted). In Hernandez, the Appellate Division held
that denying collective bargaining rights to one type of employee violated the Equal Protection
Clause of the State Constitution. Id. at 115.
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Taylor Law (“PERB Contract Bar Rule”). 4 The PERB Contract Bar Rule explicitly
provides for decertification post-expiration of a contract even if a new contract has
not yet been entered into.5 The OCB Contract Bar Rule generally prohibits post-
expiration of contract decertification but it also explicitly provides Respondents the
authority to do so if it finds “that unusual or extraordinary circumstances exist.”
OCB Rule § 1-02 (g). 6 Thus, on its face, the OCB Contract Bar Rule could have
been applied in a manner substantially equivalent to the Taylor Law if, in practice,
Respondents considered circumstances necessary for substantial equivalence
extraordinary enough to allow for a decertification petition.
PERB only learned recently that Respondents’ actual practice created an
absolute ban on post-expiration of contract decertification for functioning unions,
4
The OCB Rules are found at Rules of the City of New York, Title 61, Chapter 1, and available
online at https://www.ocb-nyc.org/rules/newproceduresfinal.pdf. PERB Rules are found at 4
NYCRR 200, et seq. and available online at https://perb.ny.gov/rules-of-procedure/.
5
The term “post-expiration of contract” used herein refers to the period between contracts—that
is, after one contract has expired and before a new one is entered into.
6
This explicit authority is found in the last sentence of the OCB Contract Bar Rule: “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
process a petition otherwise barred by this rule.” OCB Rule § 1-02 (g) (emphasis added). At
issue in this matter is only the application of the OCB Contract Bar Rules to functioning unions;
this matter does not concern defunct unions or those who have abandoned representation.
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regardless of the amount of time that had passed since the contract had expired.7
Whether that practice is substantially equivalent to the Taylor Law is the ultimate
merits determination this Court must make. The only issue in these motions to
dismiss is whether PERB’s action is timely.
First, no statute of limitations applies to a Taylor Law § 212.2 claim as it
mandates that the “continuing implementation” by Respondents of the NYCCBL be
in manner substantially equivalent to the Taylor Law. Respondents’ failure to do so
is, therefore, is a continuing violation of law for which no statute of limitations
applies. 8
Second, this action is timely even if a statute of limitations applies.
Respondents’ lack of substantial equivalency was not known or knowable until
recently. The lack of substantial equivalency does not stem from the issuance of the
OCB Contract Bar Rule but only from its application. Respondents’ practices are
opaque. Most contract bar determinations are not public and the public
7
On a motion to dismiss, the facts as pled by the petitioner are presumed true. See Myers v
Schneiderman, 30 NY3d 1, 11 [2017]. In the papers filed before PERB and in this action,
Respondents have identified no circumstances under which they would process a post-expiration
of contract decertification petition of a functioning union.
8
The terms continuing violation, continuing harm, and continuing wrong are often used
interchangeably in case law to describe the same doctrine. Herein, the term continuing violation
is used to refer to the continuing of unlawful acts, as opposed to the continuing effects of earlier
unlawful conduct.
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determinations invariably reference Respondents authority to consider post-
expiration of contract decertification. Respondents have identified nothing in the
five-plus decades since the OCB Contract Bar Rule was promulgated publicly
indicating that in practice they would disregard its provisions and never allow for
post-expiration of contract decertification of a functioning union. Only in August
2023 did Respondents indicate that they would not do so in the future.
No party complained to PERB about Respondents’ application of the OCB
Contract Bar Rule until 2022. 9 Upon receipt of the 2022 complaint, PERB
investigated and on May 25, 2023, informed Respondents that it had determined
Respondents’ practice lacked substantial equivalency; specifically, because “the
OCB’s contract bar rule as applied indefinitely delays the ability of employees to
exercise” their right to choose their bargaining representative. NYSCEF Doc No. 4:
Pet. Exhibit 3. 10
9
The details of that complaint and PERB’s investigation thereof are contained in the Petition, the
Implementation Report, and Record of the Investigation. See NYSCEF Doc Nos. 1-3. In brief,
Respondents declined to consider a decertification petition solely because it was filed after the
expiration of a contract even though, at the time of the petition, over five years had elapsed since
the last contract, a super-majority of the employees had twice sought decertification, and the
president of the union had been arrested.
10
Respondents appeared before PERB in that investigation and moved to dismiss it. At no point
did Respondents raise any statute of limitations concerns before PERB and none of the arguments
raised in their Motion to Dismiss to this Court were raised before PERB. This Court should not
consider arguments that PERB had no opportunity to address. See e.g. Matter of Klapak v Blum,
65 NY2d 670, 672 [1985].
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As Taylor Law § 212.2 addresses continuing, not past, implementation, PERB
offered Respondents time to adjust their practices. In early July 2023, Respondents
informed PERB that they would address the issue at its next board meeting. In a
July 27, 2023, email, PERB confirmed that all it was seeking was for Respondents
to “commit immediately to having a post-expiration of contract decertification
window (albeit specifics need not be set immediately) and (ii) address the current
concern of employees.” Exhibit 1: July 27, 2023 Email. In an August 9, 2023 email,
PERB inquired as to Respondents’ decision at its August 2023 board meeting. On
that day, PERB received a phone call from Respondents’ Director of Representation
stating that Respondents would not adjust its practices. No written notice of any
kind has ever been provided to PERB. The instant action was filed on September
12, 2023.
The first public act of Respondents demonstrating that its continuing
implementation would not be in substantial equivalence with the Taylor Law was
not until after the instant Petition was filed. On September 18, 2023, Respondents
issued a decision finding a petition to decertify untimely solely because it was filed
after the expiration of a contract. See FTWU, 16 OCB2d 26 [BOC 2023].11 Notably,
11
Respondents’ decisions are available in LEXIS and on its website at
https://decisia.lexum.com/nycocb/en/nav.do. Respondents provided PERB no notice of FTWU
even though the parties were in regular communications during August and September 2023.
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in FTWU, Respondents made no mention that PERB had initiated legal action to
determine the substantial equivalence of Respondents’ prohibition on post-
expiration of contract decertification.
ARGUMENT
POINT I
THE FAILURE TO BE SUBSTANTIALLY EQUIVALENT IS A
CONTINUING VIOLATION OF LAW FOR WHICH THERE IS NO
STATUTE OF LIMITATIONS
Taylor Law § 212.2 provides that Respondents’
provisions and procedures shall be of full force and effect
unless and until such provisions and procedures, or the
continuing implementation thereof, are found by a court of
competent jurisdiction, in an action brought by the board
in the county of New York for a declaratory judgment, not
to be substantially equivalent to the provisions and
procedures set forth in this article.
(emphasis added). No employee, employer, or employee organization can bring a
substantial equivalency claim, only PERB can.12 No remedy for past lack of
substantial equivalence is provided.
It is undisputed that Taylor Law § 212 does not contain a statute of limitations.
12
Respondents have repeatedly used PERB’s exclusive jurisdiction under Taylor Law § 212.2 to
defeat claims. See e.g. COBA, 14 OCB2d 19, n 41 [BCB 2021]; COBA, 12 OCB2d 28, n 14 [BCB
2019]; NYSNA, 4 OCB2d 23, n 5 [BCB 2011].
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PERB’s conclusion that Taylor Law § 212.2 does not have a statute of limitations
should be accorded deference. The Legislature delegated to PERB to determine
when and if Respondents’ continuing implementation is to be addressed by the
courts and “[i]nherent in this delegation is the power to interpret and construe the
statutory scheme.” Matter of W. Irondequoit Teachers Assn. v Helsby, 35 NY2d 46,
51 [1974] (citing Udall v Tallman, 380 US 1, 16-18 [1965]; Matter of Colgate-
Palmolive-Peet Co. v Joseph, 308 NY 333, 338 [1955]; Matter of Mounting &
Finishing Co. v McGoldrick, 294 NY 104, 108 [1945]). See also Matter of Bd. of
Educ. of City Sch. Dist. of City of NY v NYS Pub. Empl. Relations Bd., 75 NY2d 660,
666 [1990]; 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 Pub. Empl. Relations Bd., 6
NY3d 514, 522 [2006].
Issues of lack of substantial equivalence must be addressed “no matter how
longstanding or widely shared.” Nassau Community Coll. Fedn. of Teachers, 30
PERB ¶ 3003, 3005 [1997]. 13 Respondents have acknowledged that Taylor Law §
13
See also UFA, 4 OCB2d 3, n 4 [BCB 2011] (Moerdler dissent) (In analyzing whether
Respondents’ interpretation of the NYCCBL was substantially equivalent, the dissent noted that
“[e]rroneous construction, though adhered to for decades and compounded by further error
(conscious or otherwise) does not create an enforceable precept by estoppel or otherwise.”), affd
sub nom. Matter of Uniformed Firefighters v City of New York, Index No. 101817/2011 [Sup Ct,
New York County Oct. 4, 2011] (Huff, J.).
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212.2 exists to provide “a review mechanism to ensure that the continuing
implementation of [the NYCCBL] by [Respondents] is substantially equivalent to
PERB’s administration of [the Taylor Law].” COBA, 33 OCB 23, at 12 [BCB 1984]
(emphasis added). Respondents fail to explain how a review mechanism of
continuing implementation can function with a statute of limitations. Respondents
cite no case remotely analogous to Taylor Law § 212.2. Respondents cite no case
applying a statute of limitations to a continuing violation.
The continuing violation doctrine permits otherwise time-barred acts to be
considered by the Court when these acts are “part of a single continuing pattern of
unlawful conduct extending into the [] period immediately preceding the filing of
the complaint.” Petit v Dept. of Educ. of City of NY, 177 AD3d 402, 403-04 [1st
Dept 2019] (quoting Ferraro v NYC Dept. of Educ., 115 AD3d 497, 497-498 [1st
Dept 2014]). “If a continuing wrong is alleged, the action is not time-barred because
the cause of action continues to accrue anew, each day the wrong is perpetrated.”
Town of Huntington v County of Suffolk, 79 AD3d 207, 215 [2d Dept 2010], lv
denied 17 NY3d 778 [2011] (citing Tompkins v State of New York, 7 NY2d 906, 907
[1960].
Numerous cases have applied the continuing violation doctrine to claims
arising out of the Civil Service Law (“CSL”) where a government agency has failed
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their continuing statutory obligation to safeguard State Constitutional rights. Most
of these cases are in the labor law context, addressing appointments and out-of-title
work. They are highly analogous to the continuing obligation of Taylor Law § 212.2
that Respondents safeguard public employees’ State Constitutional right to
collective bargaining through local laws continuously implemented in manner
substantially equivalent to the Taylor Law. See e.g. Matter of Cash v Bates, 301 NY
258, 261 [1950] (Court rejected argument that Article 78 action alleging violation of
the CSL was untimely because “the petition charges a continuing failure of the
respondents to obey the command of [] of the State Constitution”); Matter of Burke
v Sugarman, 35 NY2d 39, 42 [1974] (following Cash); Matter of Grossman v
Rankin, 43 NY2d 493, 506 [1977] (“Since the petition charges a continuing failure
of respondents to follow the command of [] the Constitution, the usual time
limitations will not bar review”); Matter of Powers v La Guardia, 292 NY 695, 696
[1944] (suit related to CSL pay increments not subject to Article 78 statute of
limitations because of the “continuing duty to pay the salaries fixed by law”). Matter
of Askew v NYC Dept. of Envtl. Protection, 24 AD3d 544, 545 [2d Dept 2005], lv
denied 7 NY3d 702 [2006] (“cause of action alleging a violation of [CSL] may
involve a continuing wrong which is not time-barred on the ground that the practice
is long-standing.”); Matter of City of Saratoga Springs v City of Saratoga Springs
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Civ. Serv. Commn., 90 AD3d 1398, 1400 [3d Dept 2011] (“we find that the challenge
is timely as the asserted violation of [CSL] is a continuing violation”); Matter of
Patrolman’s Benev. Assn. of the Vil. of Spring Val. v Goldin, 266 AD2d 294, 294-
295 [2d Dept 1999] (“Contrary to the appellants’ contention, where, as here, the
practice complained of is a continuing one and is in violation of the New York State
Constitution, the right to relief will not be barred by the [] Statute of Limitations.”);
Matter of Patrolman’s Benev. Assn. of Southampton Town, Inc. v Town of
Southampton and Southampton Police Dept., 2009 WL 4009126, * 6, 2009 NY Slip
Op. 32660(U) [Sup Ct, Suffolk County, October 29, 2009] (“The gravamen of
petitioner’s allegations is that [Respondents] instituted a continuing practice … in
violation of [CSL] and the State Constitution. Such actions, if proven true, constitute
a continuing wrong which are not time barred.”); Walsh v Police Commr. of City of
NY, 159 NYS2d 6, 9 [Sup Ct, New York County 1956] (“The failure to fulfill an
obligation under the [CSL] … would constitute a continuing wrong, and if so, the
argument of untimeliness is of no avail.”).14
14
Only three cases cited by Respondents touched upon whether a statute of limitations applies,
and those three cases are not factually analogous to the instant matter. Waterside Assoc. v NYS
Dept. of Envtl. Conservation, 127 AD2d 663, 665 [2d Dept 1987], found that the continuing
violation doctrine did not apply where the agency had given a clear refusal to an application by a
property developer. Matter of Fedn. of Mental Health Ctrs., Inc. v DeBuono, 275 AD2d 557 [3rd
Dept 2000], found that the continuing violation doctrine does not apply to a claim based upon an
alleged harm caused by reimbursement regulations which were clear on their face and were applied
as drafted. Matter of Brennan Ctr. for Justice at NYU Sch. of Law v NYS Bd. of Elections, 52
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The continuing violation doctrine has been applied in other analogous
contexts where an agency had a continuing obligation. In Town of Huntington, the
Appellate Division denied a motion to dismiss a declaratory action as untimely under
the Article 78 holding that the matter was “not time-barred by the statute of
limitations.” 79 AD3d at 216. At issue was the failure of the County to maintain
Town roads, an alleged statutory violation of the Highway Law that was
undisputedly continuing for years. The Court noted that the “complaint seeks a
statutory interpretation, alleging a continuing wrong and the need for an injunction,
that is, the County’s purported failure to fulfill its statutory duty.” Id. In denying
the County’s argument that the Article 78 statute of limitations applied, the Court
relied on the fact that the suit addressed “governing future conduct” and was “not
seeking damages for past conduct.” Id. The relief requested could not be granted
under Article 78. Similarly here, PERB seeks relief related to the failure to abide by
a statutory obligation, seeks only to impact behavior prospectively, does not seek
any retroactive remedy, and a declaratory ruling on substantial equivalence cannot
Misc3d 246 [Sup Ct, Albany County 2016], affd 159 AD3d 1299 [3d Dept 2018], explicitly noted
that the continuing violation doctrine has been regularly applied to cases alleging violations of the
CSL. See id. at 258-259 (citing Town of Huntington, 79 AD3d 207; Askew, 24 AD3d 544; Burke,
35 NY2d 39; City of Saratoga Springs, 90 AD3d at 1400; Walsh, 159 NYS2d 6).
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be ordered through Article 78.15
There is no escaping the ramifications of finding that a statute of limitations
applies to Taylor Law § 212.2. In the past, PERB investigations of Respondents for
substantial equivalence were extremely rare because PERB believed that it had no
obligation to conduct an investigation unless and until a party raised a concern with
PERB. Respondents, however, insist upon a “case-by-case” review, obligating
PERB to review every action of Respondents as soon as discoverable. NYSCEF
Doc No. 19: Respondents Br. p 20. PERB would be required to institute actions for
declaratory actions before any party raised a concern, because if PERB waited for
someone to complain, the rights of all public employees under Respondents’
jurisdictions could be permanently denied.
For PERB to meet its statutory obligations as defined by Respondents, PERB
15
Other analogous cases applying the continuing violation doctrine to a claim related to a
continuing obligation include Matter of DeCintio v Cohalan, 518 AD3d 872, 873 [2d Dept 2005]
(applied in suit seeking to compel a judge to act); Matter of Condo Units v NYS Div. of Hous. &
Community Renewal, 4 AD3d 424, 425 [2d Dept 2004] (in suit over rent overcharges, court held
that “contrary to the respondents’ contention, where a duty imposed prior to a limitations period
is a continuing one, the statute of limitations is not a defense to actions based on breaches of that
duty occurring within the limitations period”) (citations and internal quotation marks omitted);
Matter of Janke v Community Sch. Bd., 186 AD2d 190, 193 [2d Dept 1992] (in applying continuing
violation doctrine to a suit related to obligations under the Education Law court held: “Where the
claim is that a public official has failed to perform a continuing statutory duty, the right to relief
will not be barred by the [] Statute of Limitations”); Matter of Lippold v Bd. of Educ., 67 Misc2d
499 [Sup Ct, Kings County 1971] (“The proceeding herein is one to compel the performance of a
duty specifically
Preview
FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, Petitioner, 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. New York County Index No. 452305/2023 PETITIONER’S MEMORANDUM OF LAW IN OPPOSITION TO MOTIONS TO DISMISS MICHAEL T. FOIS General Counsel Attorney for Petitioner NYS Public Employment Relations Board PO Box 2074 Empire State Plaza Agency Bldg. 2, 20th floor Albany, NY 12220-0074 Tel: 518-457-2578 Michael.Fois@perb.ny.gov December 20, 2023 1 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT .............................................................................................................7 POINT I......................................................................................................................7 THE FAILURE TO BE SUBSTANTIALLY EQUIVALENT IS A CONTINUING VIOLATION OF LAW FOR WHICH THERE IS NO STATUTE OF LIMITATIONS........................................................... 7 POINT II. .................................................................................................................14 THIS ACTION IS TIMELY IF NYCCBL § 12-308 (a) APPLIES .............................................................................14 POINT III. ................................................................................................................16 THIS ACTION IS TIMELY UNDER ANY STATUTE OF LIMITATIONS ...............................................................16 A. The OCB Contract Bar Rule Does Not Commence the Statute of Limitations .....................................................................................................18 B. No Act of Respondents Provide the Requisite Notice Triggering Claim Accrual ...........................................................................................................20 i. Nothing Cited by Respondents Demonstrates Notice .........................21 ii. No Decision Cited by Respondents Provided Notice .........................22 CONCLUSION ........................................................................................................28 PRINTING SPECIFICATIONS STATEMENT .....................................................29 -i- New York County Supreme PERB v OCB, Index No. 452305/2023 2 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 TABLE OF AUTHORITIES Page(s) Cases Matter of Askew v NYC Dept. of Envtl. Protection, 24 AD3d 544 [2d Dept 2005], lv denied 7 NY3d 702 [2006] .............................................10, 12 Matter of Bd. of Educ. of City Sch. Dist. of City of NY v NYS Pub. Empl. Relations Bd., 75 NY2d 660 [1990] ........................................................... 8 Matter of Brennan Ctr. for Justice at NYU Sch. of Law v NYS Bd. of Elections, 52 Misc3d 246 [Sup Ct, Albany County 2016], affd 159 AD3d 1299 [3d Dept 2018] ....................................................................................................11 Ballin v Ballin, 204 AD2d 1078 [4th Dept 1994] ....................................................13 Brooks Bros. v Natl. Labor Relations Bd., 348 US 96 [1954].................................23 Matter of Burke v Sugarman, 35 NY2d 39 [1974] ............................................10, 12 Matter of Cash v Bates, 301 NY 258 [1950] ...........................................................10 Matter of City of Saratoga Springs v City of Saratoga Springs Civ. Serv. Commn., 90 AD3d 1398 [3d Dept 2011] .....................................................................10, 12 Matter of Civ. Serv. Tech. Guild, Local 375 v MacDonald, Index No. 116355/95 [Sup Ct, New York County, Jan. 18, 1997] (Cahn, J.), affd 249 AD2d 74 [1st Dept 1998] .....................................................................25 Matter of Fedn. of Mental Health Ctrs., Inc. v DeBuono, 275 AD2d 557 [3rd Dept 2000] ..........................................................................11 Matter of Colgate-Palmolive-Peet Co. v Joseph, 308 NY 333 [1955]...................... 8 Matter of Condo Units v NYS Div. of Hous. & Community Renewal, 4 AD3d 424 [2d Dept 2004] ...............................................................................13 Matter of DeCintio v Cohalan, 518 AD3d 872 [2d Dept 2005] ..............................13 Ferraro v NYC Dept. of Educ., 115 AD3d 497 [1st Dept 2014] ............................... 9 -ii- New York County Supreme PERB v OCB, Index No. 452305/2023 3 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 Flintlock Construction Services, LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530 [1st Dept 2020] ..........................................................................16 HHC PBA, Inc. v NYC Off. of Collective Bargaining, 54 Misc3d 1210(A) [Sup Ct, New York County 2017] .....................................15 Hernandez v State of New York, 173 AD3d 105 [3d Dept 2019] .............................. 2 Matter of Ind. Laborers Union of NYC v Off. of Collective Bargaining, Index No. 113973/01 [Sup Ct, New York County, Apr. 3, 2002] (DeGrasse, J.) ......................................................................................................25 Matter of Janke v Community Sch. Bd., 186 AD2d 190 [2d Dept 1992] ................ 13 Matter of Klapak v Blum, 65 NY2d 670 [1985] ........................................................ 5 Matter of Kent v Lefkowitz, 27 NY3d 499 [2016] ..................................................... 8 Matter of Lippold v Bd. of Educ., 67 Misc2d 499 [Sup Ct, Kings County 1971] ............................................................................13 Matter of Mahinda v City of New York, 91 AD3d 564 [1st Dept 2012].................. 16 Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104 [1945] ............... 8 Myers v. Schneiderman, 30 NY3d 1 [2017] .............................................................. 4 Natl. Labor Relations Bd. v Appalachian Electric P. Co., 140 F2d 217 [4th Cir 1944] ................................................................................23 NYC Health & Hosps. Corp. v McBarnette, 84 NY2d 194 [1994] ........................20 Matter of Patrolman’s Benev. Assn. of the Vil. of Spring Val. v Goldin, 266 AD2d 294 [2d Dept 1999] ...........................................................................11 Matter of Patrolman’s Benev. Assn. of Southampton Town, Inc. v Town of Southampton and Southampton Police Dept., 2009 WL 4009126, 2009 NY Slip Op. 32660(U) [Sup Ct, Suffolk County, October 29, 2009] ....... 11 Matter of Powers v La Guardia, 292 NY 695 [1944] .............................................10 Petit v Dept. of Educ. of City of NY, 177 AD3d 402 [1st Dept 2019] ....................... 9 -iii- New York County Supreme PERB v OCB, Index No. 452305/2023 4 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 Matter of Poughkeepsie Professional Firefighters’ Assn. v NYS Pub. Empl. Relations Bd., 6 NY3d 514 [2006] ....................................................................... 8 Matter of Raffaele v Town of Orangetown, 224 AD2d 430 [2d Dept 2020] ........... 17 Tompkins v State of New York, 7 NY2d 906 [1960]…………………………………9 Matter of Town of Huntington v County of Suffolk, 79 AD3d 207 [2d Dept 2010], lv denied 17 NY3d 778 [2011]……………………..………………….……9, 12 Matter of Town of Islip v NYS Pub. Empl. Relations Bd., 23 NY3d 482 [2014] .............................................................................................8 Waterside Assoc. v NYS Dept. of Envtl. Conservation, 127 AD2d 663 [2d Dept 1987] ...........................................................................11 Walsh v Police Commr. of City of NY, 159 NYS2d 6 [Sup Ct, New York County 1956] ................................................................11, 12 Matter of W. Irondequoit Teachers Assn. v Helsby, 35 NY2d 46 [1974] ...............................................................................................8 Udall v Tallman, 380 US 1 [1965]............................................................................. 8 Vadell v City of NY Health and Hospitals Corp., 233 AD2d 224 [1st Dept 1996] ..........................................................................16 PERB Determinations Nassau Community Coll. Fern. of Teachers, 30 PERB ¶ 3003 [1997]……………………………………………….................8 Respondents Determinations COBA, 33 OCB2d 23 [BCB 2021] ........................................................................... 9 COBA, 14 OCB2d 19 [BCB 2021] ...........................................................................7 COBA, 12 OCB2d 28 [BCB 2019] ........................................................................... 7 FTWU, 16 OCB2d 26 [BOC 2023]……….……………………………....6, 7, 21, 27 -iv- New York County Supreme PERB v OCB, Index No. 452305/2023 5 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 Ind. Laborers Union of NYC, 68 OCB 6 [BOC 2001], affd sub nom. Matter of Ind. Laborers Union of NYC v Off. of Collective Bargaining, Index No. 113973/01 [Sup Ct, New York County, Apr. 3, 2002] (DeGrasse, J.)……..……….....……24 LEEBA, 9 OCB2d 26 [BOC 2016]…………………………………..……25, 26, 28 Local 1180, CWA, 40 OCB 18 [BOC 1987]……………………….……………..26 Local 832, IBT, 10 OCB 27 [BOC 1972], reconsideration denied 10 OCB 73 [BOC 1972]………………………...……23 Morales, 5 OCB2d 28 [BCB 2012], affd sub nom. Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v NYC Bd. of Collective Bargaining, 51 Misc3d 817, [Sup Ct, New York County 2016], affd 154 AD3d 548 [1st Dept 2017] ..........................................................................16 NYSNA, 2 OCB 68 [BOC 1968] ………………………...………………….…22, 23 NYSNA, 4 OCB2d 23 [BCB 2011] ............................................................................ 7 Raby, 71 OCB 14 [BCB 2003], affd sub nom. Matter of Raby v Off. of Collective Bargaining, Index No. 109481/03 [Sup Ct, New York County Sept. 12, 2003] (Beeler, J.)………………………..16 SSEU, 13 OCB2d 18 [BCB 2020] ..........................................................................14 Term. Empls. Local 832, IBT, 10 OCB 27 [BOC 1972], reconsideration denied 10 OCB 73 [BOC 1972]…………………..…………..26 UFA, 4 OCB2d 3 [BCB 2011] (dissent), majority affd sub nom. Matter of Uniformed Firefighters v City of New York, Index No. 101817/2011 [Sup Ct, New York County Oct. 4, 2011] (Huff, J.)………………..…………..8 Statutes and Rules Civil Practive Law and Rules CPLR Article 78 ...........................................................................1, 10, 12, 13, 14 CPLR 3001............................................................................................................1 -v- New York County Supreme PERB v OCB, Index No. 452305/2023 6 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 New York City Collective Bargaining Law, NYC Admin. Code, Title 12, Ch. 3 NYCCBL .....................................................................................................passim NYCCBL § 12-308 (a) .................................................................................14, 15 Public Employees’ Fair Employment Act, Civil Service Law, Article 14 Taylor Law ...................................................................................................passim Taylor Law § 212.2 ......................................................................................passim PERB’s Rules of Procedure, 4 NYCRR 200, et seq. PERB Contract Bar Rule(e)….………………………………..…………..passim Rules of the OCB, Rules of the City of New York, Title 61, Chapter 1 OCB Contract Bar Rule (§ 1-02 (g))…………………………..…………..passim Other Authority New York State Constitution .......................................................................1, 2, 9, 11 Robert Helsby, PERB Chair, New York State Public Employment Labor Relations: A Second Look, Speech Before the ILR Conference (Nov. 15, 1967), in NEW YORK STATE PUBLIC EMPLOYMENT LABOR RELATIONS (Edward Levin ed., 1968)…………………….………22 -vi- New York County Supreme PERB v OCB, Index No. 452305/2023 7 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 PRELIMINARY STATEMENT This memorandum of law is submitted on behalf of Petitioner New York State Public Employment Relations Board (“PERB”) in oppositions to the motions to dismiss its Verified Petition pursuant to New York Civil Practice Law and Rules (“CPLR”) 3001 and Article 78, as provided for pursuant to the Public Employees’ Fair Employment Act, Civil Service Law, Article 14, § 200 et seq. (“Taylor Law”).1 PERB seeks a declaratory judgment pursuant to Taylor Law § 212.2 that the practices of Respondents New York City Office of Collective Bargaining (“OCB”) and its constituent boards, Respondent Board of Certification (“BOC”) and Respondent Board of Collective Bargaining (“BCB”) are not substantially equivalent with those of the Taylor Law.2 The New York State Constitution enshrines employees’ right to collective bargaining.3 The Taylor Law guards that right for public employees. Localities are 1 This memorandum only expressly addresses the motion to dismiss of Respondents as they are the only parties with standing to file such motion. Should this Court consider the motions to dismiss filed by the proposed intervenors, they should also be denied for the reasons herein. 2 The main relief sought, the declaration, is only available under CPLR 3001. This matter was filed as a hybrid also under Article 78 because under Article 78, this Court is free to craft an order specifying how Respondents are to proceed to become substantially equivalent. Absent Article 78 relief, repeated litigation likely will ensue as to what the declaratory judgment requires. 3 “In no uncertain terms, N.Y. Constitution, article I, § 17 expressly bestows upon ‘employees’ an unqualified ‘right to organize and to bargain collectively through representatives of their own choosing.’ This expressly enumerated right – adopted as a result of the Constitutional Convention of 1938 and ratification by the electorate – is enshrined in the New York Bill of Rights, providing -1- New York County Supreme PERB v OCB, Index No. 452305/2023 8 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 allowed to institute and administer their own local version of the Taylor Law provided such laws are continually implemented in a manner substantially equivalent to the Taylor Law. See Taylor Law § 212. Respondents administer the New York City (“City”) local law, the New York City Collective Bargaining Law (“NYCCBL”). The foundation of collective bargaining is employees’ right to choose their bargaining representative. The process by which employees choose their bargaining representative is known as certification, and the process by which employees may choose to end that relationship is known as decertification. It is undisputed that employees have the right to decertify their bargaining representative. No restrictions on employees’ right to decertify exists in the relevant statutes, the Taylor Law and the NYCCBL. However, when employees can exercise their decertification rights can be restricted in order to allow for a degree of stability in the bargaining relationship; this is known as the “contract bar” doctrine. At issue in this case is whether Respondents’ practice as to the application of its contact bar (“OCB Contract Bar Rule”) is substantially equivalent to that of the strong evidence that the right was regarded as fundamental.” Hernandez v State of New York, 173 AD3d 105, 113 [3d Dept 2019] (citations omitted). In Hernandez, the Appellate Division held that denying collective bargaining rights to one type of employee violated the Equal Protection Clause of the State Constitution. Id. at 115. -2- New York County Supreme PERB v OCB, Index No. 452305/2023 9 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 Taylor Law (“PERB Contract Bar Rule”). 4 The PERB Contract Bar Rule explicitly provides for decertification post-expiration of a contract even if a new contract has not yet been entered into.5 The OCB Contract Bar Rule generally prohibits post- expiration of contract decertification but it also explicitly provides Respondents the authority to do so if it finds “that unusual or extraordinary circumstances exist.” OCB Rule § 1-02 (g). 6 Thus, on its face, the OCB Contract Bar Rule could have been applied in a manner substantially equivalent to the Taylor Law if, in practice, Respondents considered circumstances necessary for substantial equivalence extraordinary enough to allow for a decertification petition. PERB only learned recently that Respondents’ actual practice created an absolute ban on post-expiration of contract decertification for functioning unions, 4 The OCB Rules are found at Rules of the City of New York, Title 61, Chapter 1, and available online at https://www.ocb-nyc.org/rules/newproceduresfinal.pdf. PERB Rules are found at 4 NYCRR 200, et seq. and available online at https://perb.ny.gov/rules-of-procedure/. 5 The term “post-expiration of contract” used herein refers to the period between contracts—that is, after one contract has expired and before a new one is entered into. 6 This explicit authority is found in the last sentence of the OCB Contract Bar Rule: “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 process a petition otherwise barred by this rule.” OCB Rule § 1-02 (g) (emphasis added). At issue in this matter is only the application of the OCB Contract Bar Rules to functioning unions; this matter does not concern defunct unions or those who have abandoned representation. -3- New York County Supreme PERB v OCB, Index No. 452305/2023 10 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 regardless of the amount of time that had passed since the contract had expired.7 Whether that practice is substantially equivalent to the Taylor Law is the ultimate merits determination this Court must make. The only issue in these motions to dismiss is whether PERB’s action is timely. First, no statute of limitations applies to a Taylor Law § 212.2 claim as it mandates that the “continuing implementation” by Respondents of the NYCCBL be in manner substantially equivalent to the Taylor Law. Respondents’ failure to do so is, therefore, is a continuing violation of law for which no statute of limitations applies. 8 Second, this action is timely even if a statute of limitations applies. Respondents’ lack of substantial equivalency was not known or knowable until recently. The lack of substantial equivalency does not stem from the issuance of the OCB Contract Bar Rule but only from its application. Respondents’ practices are opaque. Most contract bar determinations are not public and the public 7 On a motion to dismiss, the facts as pled by the petitioner are presumed true. See Myers v Schneiderman, 30 NY3d 1, 11 [2017]. In the papers filed before PERB and in this action, Respondents have identified no circumstances under which they would process a post-expiration of contract decertification petition of a functioning union. 8 The terms continuing violation, continuing harm, and continuing wrong are often used interchangeably in case law to describe the same doctrine. Herein, the term continuing violation is used to refer to the continuing of unlawful acts, as opposed to the continuing effects of earlier unlawful conduct. -4- New York County Supreme PERB v OCB, Index No. 452305/2023 11 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 determinations invariably reference Respondents authority to consider post- expiration of contract decertification. Respondents have identified nothing in the five-plus decades since the OCB Contract Bar Rule was promulgated publicly indicating that in practice they would disregard its provisions and never allow for post-expiration of contract decertification of a functioning union. Only in August 2023 did Respondents indicate that they would not do so in the future. No party complained to PERB about Respondents’ application of the OCB Contract Bar Rule until 2022. 9 Upon receipt of the 2022 complaint, PERB investigated and on May 25, 2023, informed Respondents that it had determined Respondents’ practice lacked substantial equivalency; specifically, because “the OCB’s contract bar rule as applied indefinitely delays the ability of employees to exercise” their right to choose their bargaining representative. NYSCEF Doc No. 4: Pet. Exhibit 3. 10 9 The details of that complaint and PERB’s investigation thereof are contained in the Petition, the Implementation Report, and Record of the Investigation. See NYSCEF Doc Nos. 1-3. In brief, Respondents declined to consider a decertification petition solely because it was filed after the expiration of a contract even though, at the time of the petition, over five years had elapsed since the last contract, a super-majority of the employees had twice sought decertification, and the president of the union had been arrested. 10 Respondents appeared before PERB in that investigation and moved to dismiss it. At no point did Respondents raise any statute of limitations concerns before PERB and none of the arguments raised in their Motion to Dismiss to this Court were raised before PERB. This Court should not consider arguments that PERB had no opportunity to address. See e.g. Matter of Klapak v Blum, 65 NY2d 670, 672 [1985]. -5- New York County Supreme PERB v OCB, Index No. 452305/2023 12 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 As Taylor Law § 212.2 addresses continuing, not past, implementation, PERB offered Respondents time to adjust their practices. In early July 2023, Respondents informed PERB that they would address the issue at its next board meeting. In a July 27, 2023, email, PERB confirmed that all it was seeking was for Respondents to “commit immediately to having a post-expiration of contract decertification window (albeit specifics need not be set immediately) and (ii) address the current concern of employees.” Exhibit 1: July 27, 2023 Email. In an August 9, 2023 email, PERB inquired as to Respondents’ decision at its August 2023 board meeting. On that day, PERB received a phone call from Respondents’ Director of Representation stating that Respondents would not adjust its practices. No written notice of any kind has ever been provided to PERB. The instant action was filed on September 12, 2023. The first public act of Respondents demonstrating that its continuing implementation would not be in substantial equivalence with the Taylor Law was not until after the instant Petition was filed. On September 18, 2023, Respondents issued a decision finding a petition to decertify untimely solely because it was filed after the expiration of a contract. See FTWU, 16 OCB2d 26 [BOC 2023].11 Notably, 11 Respondents’ decisions are available in LEXIS and on its website at https://decisia.lexum.com/nycocb/en/nav.do. Respondents provided PERB no notice of FTWU even though the parties were in regular communications during August and September 2023. -6- New York County Supreme PERB v OCB, Index No. 452305/2023 13 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 in FTWU, Respondents made no mention that PERB had initiated legal action to determine the substantial equivalence of Respondents’ prohibition on post- expiration of contract decertification. ARGUMENT POINT I THE FAILURE TO BE SUBSTANTIALLY EQUIVALENT IS A CONTINUING VIOLATION OF LAW FOR WHICH THERE IS NO STATUTE OF LIMITATIONS Taylor Law § 212.2 provides that Respondents’ provisions and procedures shall be of full force and effect unless and until such provisions and procedures, or the continuing implementation thereof, are found by a court of competent jurisdiction, in an action brought by the board in the county of New York for a declaratory judgment, not to be substantially equivalent to the provisions and procedures set forth in this article. (emphasis added). No employee, employer, or employee organization can bring a substantial equivalency claim, only PERB can.12 No remedy for past lack of substantial equivalence is provided. It is undisputed that Taylor Law § 212 does not contain a statute of limitations. 12 Respondents have repeatedly used PERB’s exclusive jurisdiction under Taylor Law § 212.2 to defeat claims. See e.g. COBA, 14 OCB2d 19, n 41 [BCB 2021]; COBA, 12 OCB2d 28, n 14 [BCB 2019]; NYSNA, 4 OCB2d 23, n 5 [BCB 2011]. -7- New York County Supreme PERB v OCB, Index No. 452305/2023 14 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 PERB’s conclusion that Taylor Law § 212.2 does not have a statute of limitations should be accorded deference. The Legislature delegated to PERB to determine when and if Respondents’ continuing implementation is to be addressed by the courts and “[i]nherent in this delegation is the power to interpret and construe the statutory scheme.” Matter of W. Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 51 [1974] (citing Udall v Tallman, 380 US 1, 16-18 [1965]; Matter of Colgate- Palmolive-Peet Co. v Joseph, 308 NY 333, 338 [1955]; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104, 108 [1945]). See also Matter of Bd. of Educ. of City Sch. Dist. of City of NY v NYS Pub. Empl. Relations Bd., 75 NY2d 660, 666 [1990]; 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 Pub. Empl. Relations Bd., 6 NY3d 514, 522 [2006]. Issues of lack of substantial equivalence must be addressed “no matter how longstanding or widely shared.” Nassau Community Coll. Fedn. of Teachers, 30 PERB ¶ 3003, 3005 [1997]. 13 Respondents have acknowledged that Taylor Law § 13 See also UFA, 4 OCB2d 3, n 4 [BCB 2011] (Moerdler dissent) (In analyzing whether Respondents’ interpretation of the NYCCBL was substantially equivalent, the dissent noted that “[e]rroneous construction, though adhered to for decades and compounded by further error (conscious or otherwise) does not create an enforceable precept by estoppel or otherwise.”), affd sub nom. Matter of Uniformed Firefighters v City of New York, Index No. 101817/2011 [Sup Ct, New York County Oct. 4, 2011] (Huff, J.). -8- New York County Supreme PERB v OCB, Index No. 452305/2023 15 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 212.2 exists to provide “a review mechanism to ensure that the continuing implementation of [the NYCCBL] by [Respondents] is substantially equivalent to PERB’s administration of [the Taylor Law].” COBA, 33 OCB 23, at 12 [BCB 1984] (emphasis added). Respondents fail to explain how a review mechanism of continuing implementation can function with a statute of limitations. Respondents cite no case remotely analogous to Taylor Law § 212.2. Respondents cite no case applying a statute of limitations to a continuing violation. The continuing violation doctrine permits otherwise time-barred acts to be considered by the Court when these acts are “part of a single continuing pattern of unlawful conduct extending into the [] period immediately preceding the filing of the complaint.” Petit v Dept. of Educ. of City of NY, 177 AD3d 402, 403-04 [1st Dept 2019] (quoting Ferraro v NYC Dept. of Educ., 115 AD3d 497, 497-498 [1st Dept 2014]). “If a continuing wrong is alleged, the action is not time-barred because the cause of action continues to accrue anew, each day the wrong is perpetrated.” Town of Huntington v County of Suffolk, 79 AD3d 207, 215 [2d Dept 2010], lv denied 17 NY3d 778 [2011] (citing Tompkins v State of New York, 7 NY2d 906, 907 [1960]. Numerous cases have applied the continuing violation doctrine to claims arising out of the Civil Service Law (“CSL”) where a government agency has failed -9- New York County Supreme PERB v OCB, Index No. 452305/2023 16 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 their continuing statutory obligation to safeguard State Constitutional rights. Most of these cases are in the labor law context, addressing appointments and out-of-title work. They are highly analogous to the continuing obligation of Taylor Law § 212.2 that Respondents safeguard public employees’ State Constitutional right to collective bargaining through local laws continuously implemented in manner substantially equivalent to the Taylor Law. See e.g. Matter of Cash v Bates, 301 NY 258, 261 [1950] (Court rejected argument that Article 78 action alleging violation of the CSL was untimely because “the petition charges a continuing failure of the respondents to obey the command of [] of the State Constitution”); Matter of Burke v Sugarman, 35 NY2d 39, 42 [1974] (following Cash); Matter of Grossman v Rankin, 43 NY2d 493, 506 [1977] (“Since the petition charges a continuing failure of respondents to follow the command of [] the Constitution, the usual time limitations will not bar review”); Matter of Powers v La Guardia, 292 NY 695, 696 [1944] (suit related to CSL pay increments not subject to Article 78 statute of limitations because of the “continuing duty to pay the salaries fixed by law”). Matter of Askew v NYC Dept. of Envtl. Protection, 24 AD3d 544, 545 [2d Dept 2005], lv denied 7 NY3d 702 [2006] (“cause of action alleging a violation of [CSL] may involve a continuing wrong which is not time-barred on the ground that the practice is long-standing.”); Matter of City of Saratoga Springs v City of Saratoga Springs -10- New York County Supreme PERB v OCB, Index No. 452305/2023 17 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 Civ. Serv. Commn., 90 AD3d 1398, 1400 [3d Dept 2011] (“we find that the challenge is timely as the asserted violation of [CSL] is a continuing violation”); Matter of Patrolman’s Benev. Assn. of the Vil. of Spring Val. v Goldin, 266 AD2d 294, 294- 295 [2d Dept 1999] (“Contrary to the appellants’ contention, where, as here, the practice complained of is a continuing one and is in violation of the New York State Constitution, the right to relief will not be barred by the [] Statute of Limitations.”); Matter of Patrolman’s Benev. Assn. of Southampton Town, Inc. v Town of Southampton and Southampton Police Dept., 2009 WL 4009126, * 6, 2009 NY Slip Op. 32660(U) [Sup Ct, Suffolk County, October 29, 2009] (“The gravamen of petitioner’s allegations is that [Respondents] instituted a continuing practice … in violation of [CSL] and the State Constitution. Such actions, if proven true, constitute a continuing wrong which are not time barred.”); Walsh v Police Commr. of City of NY, 159 NYS2d 6, 9 [Sup Ct, New York County 1956] (“The failure to fulfill an obligation under the [CSL] … would constitute a continuing wrong, and if so, the argument of untimeliness is of no avail.”).14 14 Only three cases cited by Respondents touched upon whether a statute of limitations applies, and those three cases are not factually analogous to the instant matter. Waterside Assoc. v NYS Dept. of Envtl. Conservation, 127 AD2d 663, 665 [2d Dept 1987], found that the continuing violation doctrine did not apply where the agency had given a clear refusal to an application by a property developer. Matter of Fedn. of Mental Health Ctrs., Inc. v DeBuono, 275 AD2d 557 [3rd Dept 2000], found that the continuing violation doctrine does not apply to a claim based upon an alleged harm caused by reimbursement regulations which were clear on their face and were applied as drafted. Matter of Brennan Ctr. for Justice at NYU Sch. of Law v NYS Bd. of Elections, 52 -11- New York County Supreme PERB v OCB, Index No. 452305/2023 18 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 The continuing violation doctrine has been applied in other analogous contexts where an agency had a continuing obligation. In Town of Huntington, the Appellate Division denied a motion to dismiss a declaratory action as untimely under the Article 78 holding that the matter was “not time-barred by the statute of limitations.” 79 AD3d at 216. At issue was the failure of the County to maintain Town roads, an alleged statutory violation of the Highway Law that was undisputedly continuing for years. The Court noted that the “complaint seeks a statutory interpretation, alleging a continuing wrong and the need for an injunction, that is, the County’s purported failure to fulfill its statutory duty.” Id. In denying the County’s argument that the Article 78 statute of limitations applied, the Court relied on the fact that the suit addressed “governing future conduct” and was “not seeking damages for past conduct.” Id. The relief requested could not be granted under Article 78. Similarly here, PERB seeks relief related to the failure to abide by a statutory obligation, seeks only to impact behavior prospectively, does not seek any retroactive remedy, and a declaratory ruling on substantial equivalence cannot Misc3d 246 [Sup Ct, Albany County 2016], affd 159 AD3d 1299 [3d Dept 2018], explicitly noted that the continuing violation doctrine has been regularly applied to cases alleging violations of the CSL. See id. at 258-259 (citing Town of Huntington, 79 AD3d 207; Askew, 24 AD3d 544; Burke, 35 NY2d 39; City of Saratoga Springs, 90 AD3d at 1400; Walsh, 159 NYS2d 6). -12- New York County Supreme PERB v OCB, Index No. 452305/2023 19 of 36 FILED: NEW YORK COUNTY CLERK 12/20/2023 04:40 PM INDEX NO. 452305/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/20/2023 be ordered through Article 78.15 There is no escaping the ramifications of finding that a statute of limitations applies to Taylor Law § 212.2. In the past, PERB investigations of Respondents for substantial equivalence were extremely rare because PERB believed that it had no obligation to conduct an investigation unless and until a party raised a concern with PERB. Respondents, however, insist upon a “case-by-case” review, obligating PERB to review every action of Respondents as soon as discoverable. NYSCEF Doc No. 19: Respondents Br. p 20. PERB would be required to institute actions for declaratory actions before any party raised a concern, because if PERB waited for someone to complain, the rights of all public employees under Respondents’ jurisdictions could be permanently denied. For PERB to meet its statutory obligations as defined by Respondents, PERB 15 Other analogous cases applying the continuing violation doctrine to a claim related to a continuing obligation include Matter of DeCintio v Cohalan, 518 AD3d 872, 873 [2d Dept 2005] (applied in suit seeking to compel a judge to act); Matter of Condo Units v NYS Div. of Hous. & Community Renewal, 4 AD3d 424, 425 [2d Dept 2004] (in suit over rent overcharges, court held that “contrary to the respondents’ contention, where a duty imposed prior to a limitations period is a continuing one, the statute of limitations is not a defense to actions based on breaches of that duty occurring within the limitations period”) (citations and internal quotation marks omitted); Matter of Janke v Community Sch. Bd., 186 AD2d 190, 193 [2d Dept 1992] (in applying continuing violation doctrine to a suit related to obligations under the Education Law court held: “Where the claim is that a public official has failed to perform a continuing statutory duty, the right to relief will not be barred by the [] Statute of Limitations”); Matter of Lippold v Bd. of Educ., 67 Misc2d 499 [Sup Ct, Kings County 1971] (“The proceeding herein is one to compel the performance of a duty specifically