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In re City of New York

Supreme Court of New York, First Department

June 27, 2013

In re The City of New York, et al., Index Petitioners-Appellants,
v.
The Board of Collective Bargaining of the City of New York, et al., Respondents-Respondents.

Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellants.

John F. Wirenius, New York, for The Board of Collective Bargaining of the City of New York and Marlene A. Gold, respondents.

The Law Offices of Fausto E. Zapata, Jr., P.C., New York (Fausto E. Zapata, Jr. of counsel), for Local 333, United Marine Division, International Longshoremen's Association, AFL-CIO, and William Harrigan, respondents.

Gonzalez, P.J., Renwick, DeGrasse, Manzanet-Daniels, Feinman, JJ.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered November 4, 2010, which denied the petition brought pursuant to CPLR article 78 seeking to annul the decision of respondent Board of Collective Bargaining of the City of New York to grant the union respondents' improper practice petition, and granted respondents' cross motions to dismiss the proceeding, unanimously affirmed, without costs.

The federal regulations relied on by petitioners did not preempt their obligation to collectively bargain and permit them to unilaterally impose the disputed requirement of a doctor's "fit for duty" statement following an employee's absence from work for three or more days (see Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73, 77 [2000]). Nor were petitioners absolved from bargaining on "public policy" grounds based on the Department of Transportation's (DOT) mission of providing safety in the ferry system. The record neither establishes that the rule unilaterally imposed by DOT would substantially further its core mission of safety (see Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 19 N.Y.3d 876 [2012]), nor that any demonstrable need for the new standard outweighed its adverse impact on the collectively-bargained rights of the employees to whom it would apply (see Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 78 A.D.3d 1184, 1186 [2nd Dept 2010], affd 19 N.Y.3d 876 [2012], citing Matter of Lippman v Publ. Empl. Relations Bd., 296 A.D.2d 199, 209 [3rd Dept 2002]).


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