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PUBLIC SECTOR LABOR LAW in the KAYE COURT Vincent Martin Bonventre, J.D., Ph.D. Taylor Law Conference, May 16, 2008
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Judges of the Current Court
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The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. Oliver W. Holmes There is in each of us a stream of tendency, whether you choose to call it philosophy… Judges cannot escape that current any more than other mortals. Benjamin N. Cardozo
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Know your audience. That’s always the first thing. [I]t’s important to find out what you can about the court before which you are appearing. Antonin Scalia
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Judith S. Kaye Appointed 1983 by Cuomo First woman on Court From NYC (born in Monticello) Appointed Chief Judge 1993 by Cuomo (replaced SW [Cuomo]) Reappointed March 2007 by Spitzer Mandatory age retirement 2008
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Carmen Beauchamp Ciparick Appointed 1994 by Cuomo (replaced SFH [Cuomo]) First Hispanic on Court From NYC Reappointed Jan. 2008 By Spitzer Mandatory age retirement 2012
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Victoria A. Graffeo Appointed 2000 by Pataki (replaced JWB [Cuomo]) From Guilderland (born Rockville Center) Term expires Nov. 2014 Mandatory age retirement 2022
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Susan P. Read Appointed 2003 by Pataki (replaced HL [Cuomo]) From Capital Region (born Gallipolis, Ohio) Mandatory age retirement 2017 Term expires Jan. 2017
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Robert S. Smith Appointed 2003 by Pataki (replaced RW [Pataki]) From NYC Mandatory age retirement 2014
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Eugene F. Pigott, Jr. Appointed 2006 by Pataki (replaced GBS [Cuomo]) From Grand Island [Buffalo area] (born Rochester, NY) Mandatory age retirement 2016
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Theodore T. Jones Jr. Appointed 2007 by Spitzer (replaced AMR [Pataki] From NYC Mandatory age retirement 2014
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Richard C. Wesley (resigned 2003) Appointed 1997 by Pataki (replaced RDS [Cuomo]) From Livonia [Rochester area] (born Canandaigua, New York) Resigned for 2d Circuit appointment, 2003 Pataki replaced w/RS Smith
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George Bundy Smith (retired 2006) Appointed 1992 by Cuomo (replaced FA [Cuomo]) From NYC (born New Orleans) Denied reappointment by Pataki September 2006 (mandatory age retirement would have been 2007) Pataki replaced w/ Pigott
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Albert M. Rosenblatt (retired 2006) Appointed 1998 by Pataki (replaced VJT [Cuomo]) From Dutchess County (born NYC) Reached mandatory retirement age, 2006 Spitzer replaced w/ Jones
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Recent Divided Decisions Mayor of City of New York (2007) [S]: Local Law expanding “uniformed” status to add’l fire service employees not precluded by TL or Mayoral prerogative. Read dissent: TL preempts. Mayor of City of New York (2007) [S]: Local Law expanding “uniformed” status to add’l fire service employees not precluded by TL or Mayoral prerogative. Read dissent: TL preempts. City of Long Beach (2007) [P]: CBA provision on transferring displaced provisional employees conflicts w/ CSL & municipal authority. K & C dissent: protection of employees by placement into open position not necessarily violative. City of Long Beach (2007) [P]: CBA provision on transferring displaced provisional employees conflicts w/ CSL & municipal authority. K & C dissent: protection of employees by placement into open position not necessarily violative. NYC Transit Auth (2007)[S]: No TL right to union representation at disciplinary interview. K & C dissent: such representation fundamental to participating in union. NYC Transit Auth (2007)[S]: No TL right to union representation at disciplinary interview. K & C dissent: such representation fundamental to participating in union.*************************** Earlier…City of Watertown (2000) [K]: No statutory (GML 207-c) or PP bar to bargaining for arb procedures for contesting municipal initial determinations. Ro, GBS & L dissent: defeats initial determination authority. Earlier…City of Watertown (2000) [K]: No statutory (GML 207-c) or PP bar to bargaining for arb procedures for contesting municipal initial determinations. Ro, GBS & L dissent: defeats initial determination authority.
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Recent Pro-Management Decisions City of Long Beach (2007): Disapproving CBA provision protecting displaced provisional employees, as violative of CSL. City of Long Beach (2007): Disapproving CBA provision protecting displaced provisional employees, as violative of CSL. County of Chautauqua (2007): Disapproving CBA provision on layoffs by seniority alone, as violative of CSL. (But interdepartmental bumping ok for CBA.) County of Chautauqua (2007): Disapproving CBA provision on layoffs by seniority alone, as violative of CSL. (But interdepartmental bumping ok for CBA.) NYC Transit Authority (2007): Rejecting any right under TL to union rep at disciplinary precharge interview. NYC Transit Authority (2007): Rejecting any right under TL to union rep at disciplinary precharge interview. Professional Staff Congress-CUNY (2006): Approving CUNY’s unilateral change of policies during negotiation of new CBA because not covered in expired CBA. Professional Staff Congress-CUNY (2006): Approving CUNY’s unilateral change of policies during negotiation of new CBA because not covered in expired CBA. Patrolmen’s Benevolent Ass’n (2006): Police discipline not subject to CB where municipality has laws preexisting TL. Patrolmen’s Benevolent Ass’n (2006): Police discipline not subject to CB where municipality has laws preexisting TL. Poughkeepsie Professional Firefighters Assn. (2006): Rejecting CB over a municipality’s authority to make initial determinations of disability & eligibility for benefits. Poughkeepsie Professional Firefighters Assn. (2006): Rejecting CB over a municipality’s authority to make initial determinations of disability & eligibility for benefits.
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Recent Decisions on Public Policy (Violation) City of Long Beach (2007): Provisional employees. City of Long Beach (2007): Provisional employees. County of Chautauqua (2007): Seniority layoffs. (But not interdepartmental bumping.) County of Chautauqua (2007): Seniority layoffs. (But not interdepartmental bumping.) Patrolmen’s Benevolent Assn. of C. of N.Y. (2006): Police Discipline. Patrolmen’s Benevolent Assn. of C. of N.Y. (2006): Police Discipline. Poughkeepsie Professional Firefighters Assn. (2006): Initial determinations. Poughkeepsie Professional Firefighters Assn. (2006): Initial determinations.************************* Blackburne and Gov’s Ofc. of Emp. Rel. (!996): CB or arbitration over disciplinary discharge for Hatch Act violation contravenes public policy which renders this a sovereign decision. Blackburne and Gov’s Ofc. of Emp. Rel. (!996): CB or arbitration over disciplinary discharge for Hatch Act violation contravenes public policy which renders this a sovereign decision. Schenectady Police Ben. Assn. (1995): GML 207-c precludes CB over municipalities unilateral rules re: light duty for sick or injured police, surgery, and waiver or pertinent medical confidentiality. Schenectady Police Ben. Assn. (1995): GML 207-c precludes CB over municipalities unilateral rules re: light duty for sick or injured police, surgery, and waiver or pertinent medical confidentiality.
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Decisions on Public Policy (No Violation) City of Johnstown (2002): Arbitration over the meaning of CBA retirement benefits provision. (G dissent.) City of Johnstown (2002): Arbitration over the meaning of CBA retirement benefits provision. (G dissent.) NYC Transit Authority (2002): Arbitration of disciplinary penalty imposed by TA. NYC Transit Authority (2002): Arbitration of disciplinary penalty imposed by TA. City of Watertown (2000): CB over procedures for contesting municipal initial determinations. (Ro, GBS, L dissent.) City of Watertown (2000): CB over procedures for contesting municipal initial determinations. (Ro, GBS, L dissent.) Professional, Clerical, Technical Employees Assn. (1997): CB on promotional practices and preferences based on exam scores. Professional, Clerical, Technical Employees Assn. (1997): CB on promotional practices and preferences based on exam scores. Newark Valley C. Sch. Dist. (1994): CB over bus drivers smoking when children absent not preempted by Educ. L or Pub. Health L. Newark Valley C. Sch. Dist. (1994): CB over bus drivers smoking when children absent not preempted by Educ. L or Pub. Health L.
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Decisions on PERB (Aff’d) Professional Staff Congress-CUNY (2006): Waiver of rights in expired CBA is “status quo”. Professional Staff Congress-CUNY (2006): Waiver of rights in expired CBA is “status quo”. Patrolmen’s Benevolent Ass’n (2006): NYC police discipline not subject to CB. Patrolmen’s Benevolent Ass’n (2006): NYC police discipline not subject to CB. Poughkeepsie Professional Firefighters Assn. (2006): Initial determinations not for CB.. Poughkeepsie Professional Firefighters Assn. (2006): Initial determinations not for CB.. City of Watertown (2000): Procedures for contesting initial determinations are T or C of employment. City of Watertown (2000): Procedures for contesting initial determinations are T or C of employment. Newark Valley C. Sch. Dist. (1994): Requiring CB over bus drivers smoking when children absent. Newark Valley C. Sch. Dist. (1994): Requiring CB over bus drivers smoking when children absent.*********************** BUT: BUT: NYC Transit Authority (2007): TL right to “participate” in a union includes right to union representative at disciplinary interview. (Rev’d over K & C dissent.)
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