Sometimes It's The Thought That Counts

Implications of the First Department's Decision on Rescission of Release Time Certificates.

Introduction

The constant struggle for balance between management's authority to act unilaterally, and a union's ability to resist such action, permeates labor relations. This is particularly true in the public sector, where achieving stability involves weighing issues of workers' rights and the public interest. Although the question of whether an employer has the discretion or authority to take certain actions necessarily informs how both management and unions approach a particular situation, it is worth remembering that the question of bare authority is not, and should not, always be the end of the analysis. Even when an employer may, under certain circumstances, have the authority to take a particular action, the same action may be improper when taken for improper reasons such as retaliation, anti-union animus or bad faith.

This principle is critical to placing the decision in Patrolmen's Benevolent Assoc. of City of New York v. City of New York (which addresses the issue of release time authorization) in its proper context. There, based upon the indictment of the officers involved, the City rescinded the release time certificates for the union's chosen representatives.1 Ignoring arguments that such discretion raised the issue of so-called "company unions" in the public sector, the Appellate Division, First Department held that the City's Office of Labor Relations ("OLR") could unilaterally rescind the release time certificates of union representatives who had been indicted in a criminal scheme and direct the Patrolmen's Benevolent Association to select three different representatives to replace them, which some have contended permits the City broad power to interfere with the internal operations of a union. In reaching its conclusion, the First Department also made facially broad declarations as to the City's authority over release time. Yet, despite that broad language, OLR's authority here is not boundless but, as discussed below, continues to be limited by the mandates of the Taylor Law and the New York State Labor Law.

This article (i) discusses the enactment of Executive Order 75, which provides for release time certificates; (ii) reviews the Court's ruling in Patrolmen's Benevolent Association v. City of New York; and (iii) discusses the ways in which the decision's impact may be tempered.

Background

In 1973, New York City Mayor John Lindsay signed Executive Order 75 ("EO 75"), establishing the practice of "time released" union employees - employees who facilitate the proper operation of public sector labor relations by representing their union and interacting with management by, among other tasks, investigating grievances, participating in labor/management committee meetings, serving as...