Civil Serv. Emps. Ass'n Inc. v. N.Y.S. Pub. Emp't Relations Bd.

• Citation: 73 Misc.3d 643,155 N.Y.S.3d 296
• Decision Date: 24 September 2021
• Docket Number: 908328-21
• Parties: In the Matter of the Application of CIVIL SERVICE EMPLOYEES ASSOCIATION INC., LOCAL 1000, AFSCME, AFL-CIO, Petitioner, v. NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, Necessary Party, and New York State (Unified Court System), Respondent.
• Court: United States State Supreme Court (New York)

73 Misc.3d 643

155 N.Y.S.3d 296

In the Matter of the Application of CIVIL SERVICE EMPLOYEES ASSOCIATION INC., LOCAL 1000, AFSCME, AFL-CIO, Petitioner,

v.NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, Necessary Party, and New York State (Unified Court System), Respondent.

908328-21

Supreme Court, Albany County, New York.

Decided on September 24, 2021

Daren J. Rylewicz, Esq., For Petitioner, Steven M. Klein, of counsel, Civil Service Employees Association Inc., Box 7125, Capitol Station, 143 Washington Avenue, Albany, New York 12224

Anthony Perry, Esq. and Lisa Evans, Esq., For Respondent, Office of Court Administration, 25 Beaver Street, 7th Floor, New York, NY 10004

Michael Fois, Esq., For New York State Public Employment Relations Board, Empire State Plaza, Building 2, 20th Floor, Albany, New York 12220-0074

Christina L. Ryba, J.

On September 3, 2021, petitioner Civil Service Employees Association Inc., Local 1000, AFSCME, AFL—CIO (hereinafter CSEA), the bargaining unit for certain non-judicial employees of respondent New York State Unified Court System (hereinafter UCS), filed an improper practice charge against UCS alleging that its unilateral implementation of a mandatory COVID-19 vaccination requirement without proper negotiation with CSEA violated its collective bargaining obligations under Civil Service Law § 209-a (1) (d). Given the impending September 27, 2021 effective date of the mandatory vaccination requirement, CSEA sought injunctive relief from the New York State Public Employment Board (hereinafter PERB) pending a decision on the improper practice charge. In a determination dated September 13, 2021, PERB found reasonable cause to believe that UCS's unilateral implementation of the mandatory vaccination requirement was an improper practice and that immediate and irreparable injury would occur absent an injunction. Accordingly, PERB authorized CSEA to commence the instant proceeding pursuant to Civil Service Law § 209-a (4) for injunctive relief enjoining and restraining UCS from implementing the mandatory vaccination requirement until PERB is able to issue a decision on the merits of the underlying improper practice charge. The matter is presently before the Court as Acting Part 1 Justice for consideration of CSEA's application for temporary injunctive relief enjoining USC from implementing the mandatory vaccination requirement -- which is scheduled to commence on September 27, 2021 -- pending the outcome of the underlying improper practice charge filed with PERB. The Court conducted oral argument on the request for temporary injunctive relief with counsel for all parties via Teams on September 23, 2021, and the matter is now ripe for determination.

Pursuant to Civil Service Law § 209—a (4), a party may file an improper employer practice charge to petition the Court for injunctive relief where PERB finds "that (i) there is reasonable cause to believe an improper practice has occurred, and (ii) where it appears that immediate and irreparable injury, loss, or damage will result thereby rendering a resulting judgment on the merits ineffectual necessitating maintenance of, or return to, the status quo to provide meaningful relief". When such a petition is filed, Civil Service Law § 209-a (4) (d) permits the Court to grant the necessary injunctive relief pending the determination of the underlying improper practice charge upon a finding "that there is reasonable cause to believe an improper practice has occurred and that it appears that immediate and irreparable injury, loss or damage will result thereby rendering a resulting judgment on the merits ineffectual necessitating maintenance of, or return to, the status quo to provide meaningful relief." Civil Service Law § 209-a (4) (d) further provides that "[s]uch relief shall expire on decision by an administrative law judge finding no improper practice to have occurred, successful appeal or motion by respondent to vacate or modify pursuant to the provisions of the civil practice law and rules, or subsequent finding by the board that no improper practice had occurred."

Here, the mandatory vaccination requirement that forms the basis of CSEA's improper practice charge against UCS was first enunciated in an emailed directive of Chief Administrative Judge Lawrence Marks, dated August 25, 2021, advising that UCS was implementing a mandatory COVID-19 vaccination requirement for all non-judicial employees that would take effect on September 27, 2021, with full details to follow in a forthcoming announcement. Those specific details were later set forth in a Memorandum entitled "Mandatory Vaccination Requirement", which was disseminated via email to all non-judicial personnel on September 10, 2021. The Memorandum, which was jointly authored by UCS's Chief of Operations, Nancy J. Barry, and Chief of Administration, Justin A. Barry, directs in relevant part as follows:

All non-judicial personnel must be fully vaccinated against COVID-19 by September 27, 2021, or as soon thereafter as medically practicable provided they have received at least one dose of a COVID-19 vaccine by such date.

To this end, no later than September 27, 2021, all-non-judicial personnel must either submit proof that they: (1) are fully vaccinated; or (2) have received at least one dose of any COVID-19 vaccine.

The Memorandum proceeds to outline acceptable forms of proof of vaccination, the procedures for submitting such proof, the requirement that partially vaccinated employees submit to regular mandatory COVID-19 testing until fully vaccinated, and the manner in which an employee may seek a medical or religious exemption to the mandatory COVID-19 vaccination requirement. The Memorandum further delineates the consequences to be imposed upon employees who fail to comply with the mandatory vaccination requirement as follows:

Non-Compliance

Employees who fail to comply with the provisions of this Policy are prohibited from reporting to work and may be considered absent without authorization for which approval to charge accruals may be denied, until they have taken steps to remedy their non-compliance. Continued failure to comply may result in disciplinary action, up to and including termination.

CSEA contends that the mandatary vaccination requirement constitutes a new work rule which changes the terms and conditions of...