NYMP Laws & Orders #4:

New York State court system sues the PERB over court worker mandate decisions, MLC case against public-sector mandate tossed as moot, appeal hearing date set for Garland v FDNY lawsuit, more.

New York’s court system is suing the PERB and a bunch of unions over court worker vaccine mandate decisions.

Yes, that’s right. The New York State Unified Court System (UCS) itself is suing the Public Employment Relations Board (PERB), which is in charge of enforcing state labor laws and settling disputes involving public-sector employees. Also on the list of defendants are ten unions that represent UCS employees.

Back in February, PERB administrative law judge Mariam Manichaikul ordered UCS to “cease and desist” from imposing vaccine and testing mandates on court workers and to “make whole” the employees who had “lost accrued leave, compensation or employment as a result of the implementation of the Policies, with interest at the maximum legal rate.”

She faulted UCS for failing to bargain with the unions as required by law, and declared the mandate implementation to be subject to mandatory collective bargaining.

Then on November 8th, the PERB issued a final decision affirming Manichaikul’s order in part. It agreed that the court system had to negotiate with the unions on how the mandate would be implemented, but it revoked the judge’s order for the reinstatement of fired workers.

The new Article 78 lawsuit filed last week, Unified Court System v. Public Employment Relations Board, asks the court to vacate and annul the PERB’s decision by declaring that UCS didn’t have to bargain with the workers’ unions to implement the mandate.

This case isn’t just relevant to the court workers whose employment status and possible compensation for losses have been tossed around like a legal football between the PERB, UCS, and the unions for months. It might also affect other lawsuits that challenge the agreements unions made with state and city agencies to implement mandates.

But that’s not all: Court worker unions are suing the PERB (and UCS) too.

UCS isn’t the only party that filed suit against the PERB last week. At least some of

the unions involved weren’t happy with the way the labor board handled things either.

The Suffolk County Court Employees Association (SCCEA) and the Association of Supreme Court Reporters (ASCR) have both filed Article 78s against the PERB and the Unified Court System.

The SCCEA lawsuit asks the court to reverse the November PERB decision and affirm the earlier February decision by Manichaikul that reinstated fired workers. The ASCR suit requests that its members receive compensation for economic losses and asks the court to order UCS back to the bargaining table to negotiate on the implementation of its vaccine mandate.

Does this mean that in 2024 we’ll see unions bargaining with the court system over vaccine mandate exemption processes and leave policies? Stranger things have happened. I’ll be keeping an eye on these cases.

January appeal hearing date set for Garland v. FDNY.

Garland v. New York City Fire Department is headed back to federal court after being dismissed in March by New York Eastern District Court Judge Kiyo Matsumoto. The Second Circuit Court of Appeals in Manhattan will hear oral arguments in the appeal on January 9th.

The lawsuit led by attorney Austin Graff was filed on behalf of 86 current and former FDNY employees against FDNY and department officials, the City of New York, and the employees’ unions and union officials.

It argued that both FDNY and the agreements it made with the unions violated the employees’ constitutional due process rights when they put employees on leave without pay and fired them under New York City’s public sector mandate.

ICYMI: Broecker v. NYCDOE dismissed by federal appeals court, with plaintiffs possibly headed to state court.

If you missed my coverage of the Broecker appeal, you can catch up here. You can also listen to an in-depth conversation about the Broecker and Garland cases with attorney Austin Graff in this episode of the New York Mandate Podcast.

When I had him on the podcast in November, Graff offered some further comments on the Broecker appeal decision and where things may be headed next for the plaintiffs:

Attorney Austin Graff comments on the federal appeals court decision on Broecker v. NYCDOE.

Municipal Labor Committee appeal in public sector mandate case declared moot.

In July, I noted that the MLC hadn’t seemed to file an appeal brief by the deadline after losing its case against the mandate for NYC municipal workers. I concluded they must have dropped it. Well, it turns out that they did file their brief later that month and the case was put on ice until the fall by a stipulation.

Then on December 7th, New York’s First Department of the Appellate Division declared the appeal moot. The lawsuit had argued that maintaining the mandate for City workers after the private-sector mandate had been lifted was arbitrary and capricious and denied them equal protection under the law.

The appellate court declared the case moot on the basis that the private-sector mandate too has been lifted.

Here’s the thing: The MLC case wasn’t the only one to make that kind of argument about unequal treatment, so this could be a decision that impacts or bodes ill for other lawsuits brought on similar grounds.

Garvey v. City of New York appeal reply brief filed.

After a series of extensions, all of the documents required to move forward seem to have been filed in the Garvey appeal, with the City filing its reply brief on November 27th.

That means the appeal arguments are now ready to be considered by New York’s Second Department appeals court, over a year after Richmond County Supreme Court Judge Ralph Porzio decided in favor of 16 former employees of the New York City Department of Sanitation (DSNY) who were fired under the City’s vaccine mandate for municipal workers.

Porzio’s pivotal Garvey decision is cited in numerous other lawsuits, so the eventual ruling on the appeal will affect more than just the 16 DSNY workers, who have thus far not been reinstated to their jobs or given any of the compensation ordered by Judge Porzio.

Laws & Orders is a periodic dispatch from the New York Mandate Podcast that gives a rundown of recent legal, regulatory, and policy developments related to the pandemic and its aftermath, with a New York focus.