Slack, for appellants.
Abigail R. Levy, for respondents Board of Collective
Bargaining of City of New York et al.
J. Vitale, for respondents New York State Nurses Association
York State Public Employment Relations Board; Municipal Labor
Committee, amici curiae.
York State Nurses Association (NYSNA, or the Union) filed an
improper practice petition with the Board of Collective
Bargaining of the City of New York (the Board), alleging that
it had a right to information, under New York City Collective
Bargaining Law (NYCCBL) § 12-306 (c) (4), in connection
with disciplinary proceedings brought against two nurses
employed by the City's Human Resources Administration
(HRA). We agree with the Appellate Division that the City was
required to furnish the information specified by the Board.
represents more than 8, 000 registered nurses, only 29 of
whom are employed by HRA. In 2009, two Union members employed
by HRA were served disciplinary charges alleging that they
had falsified their time records. HRA also sent notices to
the nurses, outlining the steps of the disciplinary process.
Step 1 of the process was an informal conference, at the
conclusion of which, if applicable, the conference holder
would recommend a penalty. If the charges were sustained at
Step 1, each nurse would have the option of proceeding under
Civil Service Law § 75 or following the procedures
agreed upon in the collective bargaining agreement (CBA). If
the nurse chose the latter option, she would next attend a
Step 2, "Grievance Hearing" before an HRA hearing
officer. The notice instructed the nurses to "bring to
the [h]earing all relevant documentation in support of your
Union then requested information from HRA, for the purposes
of representing the employees in their disciplinary
proceedings, and assessing compliance with the CBA. The Union
sought relevant policies and the HRA Code of Conduct,
information on time-keeping, patient treatment records for
the relevant dates, witness statements, and a written
statement detailing how the nurses violated the HRA Code of
Conduct. The Union also requested to question the witnesses
who gave statements and the nurses' supervisors. The City
refused to provide any of the requested information or
witnesses. There is no dispute that a consistent practice
exists whereby the Union has sought and received such
information from the New York City Health and Hospitals
Corporation (HHC), which employs the vast majority of the 8,
000 union members covered by the same CBA that covers the 29
nurses employed by HRA.
2010, after the Step 1 conference resulted in a
recommendation to terminate the nurses' employment, the
Union filed its improper practice petition, alleging that
HRA's failure to provide the requested information
violated NYCCBL § 12-306 (a) (1) and (4). The Board,
with two members dissenting, ruled that it was an improper
practice for the City to refuse to respond to certain of the
information requests, finding that § 12-306 (c) (4)
extends to information "relevant to and reasonably
necessary to the administration of the parties'
agreements, such as processing grievances"
(NYSNA, 4 OCB2d 20, 10 [BCB 2011] [internal
citations omitted], available at
The Board found that the Union was not, however, entitled to
witness statements or a written explanation regarding the
violation or the opportunity to question the identified
witnesses or supervisors, because § 12-306 (c) (4) is
limited to information "normally maintained in the
regular course of business."
City then initiated this CPLR article 78 proceeding in
Supreme Court to challenge the Board's determination.
Supreme Court granted the City's petition and annulled
the determination, concluding that the Board improperly
extended the right to obtain information for grievances
pursuant to contract administration to disciplinary
proceedings, noting that the agreement does not explicitly
require the City to provide information in disciplinary
proceedings. The Appellate Division unanimously reversed,
holding that the Board's decision, which was entitled to
"substantial deference, " had a rational basis (130
A.D.3d 28, 30 [1st Dept 2015]). The Appellate Division
granted the City leave to appeal on a certified question of
whether its order was properly made.
provides that it is improper practice for a public employer
"to refuse to bargain collectively in good faith on
matters within the scope of collective bargaining with
certified or designated representatives of its public
employees" (NYCCBL § 12-306 [a] ). The law
further requires both employers and unions "to furnish
to the other party, upon request, data normally maintained in
the regular course of business, reasonably available and
necessary for full and proper discussion, understanding and
negotiation of subjects within the scope of collective
bargaining" (id. § 12-306 [c] ).
Board held that section 12-306 (c) (4) extended to
information "relevant to and reasonably necessary for
the administration of the parties' agreements, such as
processing grievances, and/or for collective negotiations on
mandatory subjects of bargaining, " citing several
decisions of PERB, the Board's analogue for state
employees (4 OCB2d 20, 9-10). As noted by the Board, PERB
"has consistently upheld the right of a union to seek
information for contract administration in the context of
disciplinary grievances" (id. at 10).
City contends that the NYCCBL "does not create a
freestanding information right, " but requires employers
and unions to exchange data that is necessary to collective
bargaining only. In its petition, the City acknowledges its
statutory duty to provide information "under the rubric
of contract administration and under this section of the
NYCCBL" and that "grievances... are matters of
contract administration."  The Appellate Division
also noted, "Significantly, the City and HRA do not
dispute the Board's precedent holding that the duty to
furnish information already applied to 'contract
administration' and 'grievances' (including
potential grievances)" (130 A.D.3d at 34). The City
argues that grievances are entirely distinct from
disciplinary proceedings, and therefore that the information
obligations required for grievances do not apply to
disciplinary proceedings. The City notes that if the Union
had wanted the right to obtain information related to
disciplinary proceedings, and not just grievances, it should
have bargained for that to be included in the CBA.
fact, the Union has bargained for and accomplished just that.
Article VI, section 1.D. of the CBA defines
"grievance" to include: "a claimed wrongful
disciplinary action taken against an employee." Thus, by
defining "grievance" to include disciplinary
action, the CBA, has, as a matter of contract, incorporated
as to ...