This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 53
In the Matter of City of New
York, et al.,
            Appellants,
        v.
New York State Nurses
Association, et al.,
            Respondents.




          Devin Slack, for appellants.
          Abigail R. Levy, for respondents Board of Collective
Bargaining of City of New York et al.
          Joseph J. Vitale, for respondents New York State Nurses
Association et al.
          New York State Public Employment Relations Board;
Municipal Labor Committee, amici curiae.




WILSON, J.:
          New 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

                               - 1 -
                               - 2 -                          No. 53

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.
          NYSNA 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 appeal."
          The 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


                               - 2 -
                               - 3 -                          No. 53

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.
           In 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
http://www.ocb-nyc.org/uploads/2015/06/4-OCB2d-20-BCB-2011-k6g.pd
f).   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


                               - 3 -
                                - 4 -                          No. 53

or supervisors, because § 12-306 (c) (4) is limited to
information "normally maintained in the regular course of
business."
          The 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 AD3d 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.
          NYCCBL 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] [4]).    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


                                - 4 -
                                   - 5 -                        No. 53

scope of collective bargaining" (id. § 12-306 [c] [4]).
               The 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).
               The 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."1
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 AD3d at
34).       The City argues that grievances are entirely distinct from


       1
       The City has also conceded that duty in other proceedings
(see e.g. District Council 37, 6 OCB2d 2, 11 [BCB 2013],
available at
http://www.ocb-nyc.org/pdf/6%20OCB2d%202%20(BCB%202013).pdf).

                                   - 5 -
                               - 6 -                          No. 53

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.
          In 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 disciplinary actions the information
requirements applicable to grievances.
          The City urges that "disciplinary action" in the CBA
should be limited to the final action against an employee, such
as suspension or termination, rather than defined to include all
actions related to the disciplinary process.   The City cites
Matter of Kilduff v Rochester City School District in support of
its argument, in which we referred to a 30-day suspension as a
"disciplinary action" (24 NY3d 505, 507 [2014]).   However,
Kilduff contains no suggestion, much less a holding, that
"disciplinary action" is limited to the final disposition.
"Disciplinary action" may encompass a range of procedures and the
results of such procedures.   When the Union filed its improper
practice petition, both nurses had been charged, and the


                               - 6 -
                                 - 7 -                        No. 53

conclusion of Step 1 of the disciplinary process was a
recommendation of termination.    Further, even were we to accept
the City's argument, the CBA also defines "grievance" to include
a "claimed violation, misinterpretation or misapplication of the
rules and regulations, written policy or orders of the Employer
applicable to the agency which employs the grievant affecting
terms and conditions of employment."     Here, the "claimed
violation" occurred no later than the commencement of the
disciplinary proceedings.
          Matter of Pfau v Public Employment Relations Board, on
which the City relies, is consistent with the Board's ruling here
(69 AD3d 1080 [3d Dept 2010]).    In Pfau, the Appellate Division
held that the Unified Court System had no obligation to provide
information to employees subject to disciplinary proceedings.
Pfau's holding rested on three propositions: (1) "[The Unified
Court System] had taken a consistent approach [and refused]
disclosure demands for over 20 years, spanning the life of
several collective bargaining agreements"; (2) neither the Rules
of the Chief Judge nor the collective bargaining agreement
contained any right to disclosure in disciplinary proceedings;
and (3) the supposed "general rule that there is no right to
disclosure in disciplinary proceedings" (id. at 1082-1083).
Here, the first two factors are not present.     It is undisputed
that the consistent, longstanding position of HHC -- which
employs 8,000 union members as compared to the 29 employed by HRA


                                 - 7 -
                              - 8 -                           No. 53

-- has been to provide disclosure in disciplinary proceedings.
Moreover, unlike the circumstances in Pfau, the CBA, by defining
"grievance" to include disciplinary actions, when coupled with
HRA's agreement that it is required to provide information for
grievances, is not silent on the question of disclosure for
disciplinary proceedings.
          Finally, the City argues that disciplinary proceedings
are meant to be resolved on an expedited timeline, and that the
requirement to respond to burdensome information demands would
bog down that process and eliminate its effectiveness.   However,
the great majority of nurses covered by this CBA are employed by
agencies that have historically provided such information for
disciplinary proceedings, and neither the record nor counsel
could identify any undesirable effects that have actually
occurred as a result of the provision of that information.
          Accordingly, the order of the Appellate Division should
be affirmed, without costs, and the certified question answered
in the affirmative.




                              - 8 -
Matter of City of New York v New York State Nurses Association

No. 53




GARCIA, J.(dissenting):

            The majority believes that the City has conceded that
the statutory discovery obligation contained in NYCCBL § 12-306
(c) (4) extends to "grievances" (majority op at 5).   The majority
then concludes that, because the parties' collective bargaining
agreement defines "grievance" to include "disciplinary action
taken against an employee," the City's discovery obligation
necessarily extends to disciplinary actions (majority op at 6).
I disagree with both propositions, and therefore I respectfully
dissent.1

                               I.

            Initially, I question the majority's premise that the
City has "acknowledge[d]" that its statutory duty under NYCCBL §
12-306 (c) (4) extends to "grievances" -- a word found nowhere in
the text of the statute (majority op at 5).   While the City has



     1
       The parties disagree regarding whether a deferential or de
novo standard of review applies. Viewed as a matter of "pure
statutory construction" subject to "de novo" review (Matter of
New York City Tr. Auth. v New York State Pub. Empl. Relations
Bd., 8 NY2d 226, 231 [2007]), I believe the plain language of
NYCCBL § 12-306 (c) (4) compels reversal in this case. I would,
however, reach the same result under either standard. Notably,
the majority is silent as to whether a deferential standard of
review applies.

                                - 1 -
                                - 2 -                          No. 53

recognized that the Board has found that § 12-306 (c) (4) applies
to "information relevant to and reasonably necessary for the
administration of the parties' agreements, such as processing
grievances" -- an interpretation this Court has never affirmed --
the City does not concede that the Board's determination is
correct.   To the contrary, the City calls into question the
Board's "contract administration framework," noting that it
"lacks grounding in any statutory text" and that it "is not free
from doubt."

           Moreover, even if § 12-306 (c) (4) applies to certain
"grievances," the CBA's definition of "grievance" is irrelevant
to our analysis.   The parties do not dispute that the CBA does
not provide for the discovery right that NYSNA now seeks.
Rather, NYSNA contends that the source of its discovery right is
statutory -- namely, NYCCBL § 12-306 (c) (4).   Contrary to the
majority's holding, the scope and meaning of that statutory right
is not determined with reference to the parties' private
agreement.   Like most statutes, NYCCBL § 12-306 (c) (4) is
broadly applicable; it governs multiple collective bargaining
agreements, not just NYSNA's.   The meaning of § 12-306 (c) (4)
does not -- and cannot -- vary based on the particular agreement
at issue, or the precise terms that the parties "bargained for"
(majority op at 6).   The terms of the CBA therefore have no place




                                - 2 -
                               - 3 -                        No. 53

in our statutory interpretation analysis.2

          Nor did the Board believe that the parties' CBA somehow
gave rise to a discovery right "as a matter of contract"
(majority op at 6).   To the contrary, the Board determined that
the CBA "does not explicitly obligate the parties to provide
requested information in conjunction with a disciplinary process"
(emphasis added).   The Board instead held that NYCCBL § 12-306
(c) (4) contains a "statutory duty" -- independent of the CBA --
that "applies to requests made in the context of disciplinary
grievances."

                                II.

          A plain reading of the statute confirms that it was not
intended to apply to the instant discovery requests.   In relevant
part, NYCCBL § 12-306 (c) provides:

          "Good faith bargaining. The duty of a public
          employer and certified or designated employee
          organization to bargain collectively in good
          faith shall include the obligation:
          (4) 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

     2
       The majority also states that the City has conceded "in
other proceedings" that its statutory duty extends to
"grievances" (majority op at 5 n 2). But the 2013 Board decision
cited by the majority postdates the parties' 2008 CBA. The
parties therefore could not have "incorporated" into the CBA an
understanding, based on Board precedent, that § 12-306 (c) (4)
applies to grievances, nor could they have "bargained for" the
application of that discovery right to disciplinary actions
(majority op at 6).

                               - 3 -
                                - 4 -                           No. 53

           subjects within the scope of collective
           bargaining"


(NYCCBL § 12-306 [c] [4]).   The statute falls within Chapter 3 of
Title 12 of the New York City Administrative Code -- a chapter
entitled, "Collective Bargaining."      Subsection (c) -- the
provision defining "[g]ood faith bargaining" -- sets forth those
rights and obligations attendant to the collective bargaining
process.   The five subdivisions of NYCCBL § 12-306 (c), then, are
designed to specify the component obligations that comprise a
public employer's statutory duty to "bargain collectively in good
faith" (NYCCBL § 12-306 [c]).   To that end, § 12-306 (c) (4)
requires the exchange of "data" that is "necessary" to facilitate
the bargaining process.   Put another way, § 12-306 (c) (4)
applies to discovery in connection with the formation and
negotiation of a collective bargaining agreement, as
distinguished from its implementation.3



     3
       The four other subdivisions of § 12-306 (c) similarly
specify component obligations of a public employer's statutory
duty to "bargain collectively in good faith," and plainly aim to
facilitate the bargaining process: subdivision (1) requires
employers "to approach the negotiations with a sincere resolve to
reach an agreement"; subdivision (2) requires employers "to be
represented at the negotiations by duly authorized
representatives prepared to discuss and negotiate on all matters
within the scope of collective bargaining"; subdivision (3)
requires employers "to meet at reasonable times and convenient
places as frequently as may be necessary, and to avoid
unnecessary delays"; and subdivision (5) states that, "if an
agreement is reached," the employer must "execute upon request a
written document embodying the agreed terms, and to take such
steps as are necessary to implement the agreement" (NYCCBL § 12-
306 [c] [1]-[3], [5]).

                                - 4 -
                               - 5 -                          No. 53

          Here, NYSNA does not seek discovery that is relevant
to, or "necessary for," the collective bargaining process (NYCCBL
§ 12-306 [c] [4]).   The requested discovery does not, for
instance, pertain to the employee discipline process which, the
City agrees, is a mandatory subject of collective bargaining.
Rather, NYSNA seeks discovery in connection with two particular
employee disciplinary proceedings being resolved pursuant to an
already-bargained-for procedure set forth in the CBA.    NYSNA's
discovery requests pertain only to the substance of the
underlying dispute -- the propriety of two employee terminations
for falsifying time records -- and therefore do not implicate
matters to be negotiated or embodied in a collective bargaining
agreement.

          The majority's conclusion to the contrary is also "in
serious disaccord with one of the settled objectives of employee
discipline" -- to "promptly resolve allegations of employee
misconduct" (Matter of Pfau v Public Employment Relations Board,
69 AD3d 1080, 1082-1083 [3d Dept 2010]).   Indeed, this objective
is embodied in the parties' CBA, which contemplates a swift and
efficient dispute resolution process.   For instance, the CBA
imposes narrow time limitations on each step of the disciplinary
grievance procedure, culminating in an "expedited arbitration
process" that "allow[s] for the prompt adjudication of
grievances."   The CBA does not contemplate discovery until the
parties reach arbitration -- the fourth stage of the grievance


                               - 5 -
process.   Any earlier right to discovery is notably absent from
the agreement.

                                 III.

           Nothing in the text of NYCCBL § 12-306 (c) (4) suggests
that the statute itself confers the discovery right that NYSNA
seeks.   In order to reach its conclusion that discovery is
required, the majority (1) adopts the view that the statute
covers "grievances" -- a term found nowhere in the text, and (2)
concludes that the City therefore "bargained" away a discovery
right by including disciplinary actions in the CBA's definition
of a "grievance" (majority op at 5-6).   Our rules of statutory
construction do not support that analysis.   Nor did the Board
adopt that reasoning.

           NYSNA bargained for a detailed and comprehensive
dispute resolution procedure outlined with specificity in the CBA
-- a process reflective of the parties' intent to resolve
employee grievances efficiently and expediently.   If NYSNA
desires a broader discovery right -- or any other procedural
protection -- in connection with employee disciplinary
proceedings, it is free to bargain for that right through the
collective bargaining process.

           I dissent, and would reverse the order of the Appellate
Division, which dismissed the City's article 78 proceeding
challenging the Board's decision.




                                 - 6 -
                                - 7 -                           No. 53

*   *   *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, without costs, and certified question answered in
the affirmative. Opinion by Judge Wilson. Chief Judge DiFiore
and Judges Rivera, Stein and Fahey concur. Judge Garcia dissents
in an opinion.


Decided June 8, 2017




                                - 7 -
