PUBLIC SECTOR LABOR LAW in the KAYE COURT Vincent Martin Bonventre, J.D., Ph.D. Taylor Law Conference, May 16, 2008

Judges of the Current Court

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

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

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

Carmen Beauchamp Ciparick Appointed 1994 by Cuomo (replaced SFH [Cuomo]) First Hispanic on Court From NYC Reappointed Jan By Spitzer Mandatory age retirement 2012

Victoria A. Graffeo Appointed 2000 by Pataki (replaced JWB [Cuomo]) From Guilderland (born Rockville Center) Term expires Nov Mandatory age retirement 2022

Susan P. Read Appointed 2003 by Pataki (replaced HL [Cuomo]) From Capital Region (born Gallipolis, Ohio) Mandatory age retirement 2017 Term expires Jan. 2017

Robert S. Smith Appointed 2003 by Pataki (replaced RW [Pataki]) From NYC Mandatory age retirement 2014

Eugene F. Pigott, Jr. Appointed 2006 by Pataki (replaced GBS [Cuomo]) From Grand Island [Buffalo area] (born Rochester, NY) Mandatory age retirement 2016

Theodore T. Jones Jr. Appointed 2007 by Spitzer (replaced AMR [Pataki] From NYC Mandatory age retirement 2014

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

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

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

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.

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.

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.

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.

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.)