New York City can terminate union-mandated paid “release time” for police officers involved in a ticket-fixing scheme, a divided state appeals panel has ruled, vacating a preliminary injunction imposed on the city by a lower court judge pending a separate arbitration proceeding.
A 3-2 panel of the Appellate Division, First Department, ruled Tuesday in Patrolmen’s Benevolent Assn. v. City of New York, 113039/11, that the Patrolmen’s Benevolent Association (PBA), the union representing the officers, is not likely to prevail in the arbitration.
Justice Richard Andrias wrote the majority opinion, joined by Justices Leland DeGrasse and Sallie Manzanet-Daniels.
Justice Judith Gische wrote a dissent, joined by Justice Peter Tom.
The case involves three members of the PBA, not named in the decision, who were elected to four-year terms as PBA representatives for police officers in the Bronx.
Under a 1973 Mayor’s Executive Order, known as EO 75, city employees can take a paid leave of absence in order to work for their union, known as release time. In July 2011, the city issued certificates allowing release time for the three officers.
In October 2011, however, the officers were indicted as part of a ticket-fixing scheme. They pleaded not guilty. In November 2011, the city rescinded their release time certificates. It offered to issue new certificates to three new representatives of the PBA’s choice, but the PBA refused, instead filing a grievance with the Office of Labor Relations.
The OLR denied their grievance, and the PBA filed a request for arbitration with the Office of Collective Bargaining. They also filed an action in Manhattan Supreme Court seeking a preliminary injunction preventing the city from rescinding the certificates.
Justice Joan Lobis granted the injunction in December 2011, and the city appealed.
The Municipal Labor Committee, a coalition of city worker unions, filed an amicus brief on the side of the PBA, represented by Harry Greenberg and Genevieve Peeples of Greenberg Burzichelli Greenberg.
Andrias wrote in the majority opinion that the injunction must be vacated because the PBA is not likely to prevail in the arbitration.
He pointed to §4(10) of EO 75, which says that city employees on release time “shall at all times conduct themselves in a responsible manner.”
“Indeed, the Release Time certificates state on their face that they ‘MAY BE REVOKED, MODIFIED OR CANCELLED,’ and petitioners do not suggest any purpose section 4(10) might have, other than to vest the City with residual authority to rescind Release Time where warranted,” he wrote.
Gische, in her dissent, said that “there is no language in EO 75 that would specifically allow the City to revoke any certificates previously granted in a situation where, as here, the employee has been charged with committing a crime.”
“Both parties present strong arguments on the law,” she wrote. “However, the issue whether the City can unilaterally revoke its previous grant of release time to these three officers, who have pleaded not guilty to charges that they were involved in a ticket fixing scheme, is the very issue of the grievance that is the subject of arbitration.”
Gische also wrote that the PBA and officers had shown that they would suffer “irreparable harm” if the preliminary injunction were lifted.
“The individual petitioners are officers who were designated by their union to act on behalf of its members,” she said. “The city’s offer, to allow the petitioners to substitute different representatives for the union and grant them release time for that purpose, does not ameliorate the harm because the union’s chosen representatives are not fungible.”
The union is represented by Ronald Dunn and Mark Walsh of Gleason, Dunn, Walsh & O’Shea, and by Michael T. Murray of Michael T. Murray & Associates. The attorneys could not be reached for comment.
Ellen Ravitch and Pamela Dolgow of the city Law Department represent the city.
“We are pleased with the Court’s decision and agree with the majority’s interpretation of the city’s role under the mayor’s executive order at issue,” Ravitch said in a prepared statement.
@|Brendan Pierson can be reached at email@example.com.