SUPREME COURT OF THE STATE OF NEW YORK-NEW YORK COUNTY PRESENT: 0. PETER SHERWOOD PART 61 In the Matter of the Application of, STACeY MORIATES and BRENDA GILL, INDEX NO. 1140&.4/2001 Petitioner, MOTICN OA Tl! Dec.4.200I -again at· M011()H SI!!Cl. NO. 001 NYC OFFICE OF COLLECTIVE BARGAINING MOTION C:AL. NO. 78 BOARD Of: COllECTIVE BARGAINING, eta/., Rnponaenta. The rollowlng papeP8, numbel'td 1 to __a__ ware read on this petition ,DU11Jytnt to CPLR Al"tlel! 78 PAPERS NUMBERED -.. Notice or Motion/ Ordtr to Sl'low Cau•e-AMdlvka-Exhibit& ... ,_2 -rn Anawtring Affldavltla-Exhibits---------------z Replying Affidavits _______________~ -0 ~~ l=o:: Cross-Motion; [-! Yes ~o ~(.? '"')i!; 0~ Upon the foregoing papers. the CPLR Article 78 petition i• decided In accordance 1-0 w Q _ -. ' with the accompanying decision, ordel' and judgment. ~ft ww LL.:C WI-D! a::: > _,L o L. ~ I 1-0 w a. ffi IX -rn D•at•d:_3_,_(;......_.· __,5~ "'--0... 1 _ _ r? Check one: iV'FtNAL DISPOSITION NON-FINAL DISPOSITION Check if appropriate: DO NOT POST
SUPREME COURT OF THE STATE OF NEW YORK-NEW YORK COUNTY PRESENT: 0. PETER SHERWOOD. JusUt:e hi the Matter of the Application of. STACEY MORIATES •nd BRENDA GILL. l'etlitoner, NYC OFFICI; OF COLLeCTIVe BARGAINING BOARD OF COLLECTIVE BARGAINING, et ttl., Rnponc:tents. The following papellJ 1 numbered 1 to ..JL_ were rvad on this petition Notice of Motion/ Order to Show Cauee-Amdavltl -Anewetlng AffldDvita-Exhibits------------Replying Affidavit&---...........- ------------Sur-1\eply Afffdavlta -----------------Cross-Motion: ~es [J No Upon the foregoing papers, the CPLR Article 7B amended petition and the croea motion of lhe City raspond•nt4 ,,. decided In accordance with the decision, order and judgment accompanying motion eequence no. 001. Dated: 3fui;v T Check one: ~.ifF.INAL DfSPOSITION Check if appropriate: DO NOT POST PART 61 INDEX NO, 1141)1§12008 MOnON DATe OK.4.2G09 MOnON SI!Q. NO. 003 MOTION CAL. HO. (!Ursuant to CPLR Article 78 eAPEBS NUMBERED Exhlbibl •.. :1-2 D~L ~~ 0. PETER SHERWOOD, J.S.C. NON .. fiNAL DISPOSITION
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ~EW YORK: lAS PART 61 ---------------------------------~------------------------···----·.--}(· In the Matter of the AppJlcation of DECISION, ORDER STACEY MORIATES and BRENDA GILL, AND .nJDGMENT Petltlonen,. Index No.: 114094/08 For o Judam.ent u~der Artlele 78 of the Civil Practice Law and RuJoa ·against· NYC OFF'ICE OJI COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING, NYC DEPARTMENT OF ENVIRONMENTAL PROTECTION, CITY OF NEW YORK, ------·----------~·-.............................................." 0. PETER SHERWOOD, J.: In this CPLR Article 78 proceeding, prose petitioners Stacey Moriates ("Moriates,.) and Brenda Gill ("Gill") seek a judgment vacatina and annulling the September 24. 2008 determination ofr espondents the Board of Collective Bargaining of the City ofNew York ("Board" or 1 'BCB") and the New York City Office of Collective Bargaining ("'OCB.') wruch denied petitioners• amended improper practice petition ("•Jp)>"). Petitioners brought the IPP against city respondents the City of New York aod the New York City Department ofEnvirorunental Protection ("DEP") (oollectively "the City respondents"), claiming that DEP acted inappropriately and ineffectively when it was notified of potential improper union campaigning through e-mail. Petitioners filed a motion (motion sequence no. 001) and an amended motion (motion sequence no. 003) requesting the annulment of the Board•~:~ decision, as well as additional relief including, but not limited to. identification of the individuals and the computers linked tc the: campaign. . related e·mails, a judicial hearing, a requirement that DEP not prejudice petitioners with regards to any upcoming promotions or job opportunities, and a statement of the disciplinary charges of the alleged e~mail perpetrator. Their amended petition seeks the same relief as the original petition, plus an order declaring that the DEP should send e-ma.ils to its employees, in essence. ~~~ l3t~3S~l dH W~SGill OlOG 91 ~e
explaining what allegedly transpired and apologizing for any alleged vil)lations or defamations which may have occurred. Motion sequence nos. 001 and 003 are hereby consolidated for disposition. 1 City respondents cross-move pursuant to section 12·308 of the Administrative Code of the City of New York C'Administrative Code") and CPLR §9 217,7804 (f) and 3211 (a) (2). (a)(~). (a) (7), and (10), for an order dbmi~ging the petirlon on the ground that the petition fails to state a cause of action. The Board and OCB essentially agree with City respondents in all oftheir claims and abo seek dismissal oithe Article 78 petition. For the reasons that follow, the petition is denied, the City respondents' cross motion for an order dismissing the petition is granted and the petition is dismissed. BACKGROUND Petitioners work for DEP and are member11 of the Civil Servi~c Te <:hni(";al Guild Union ("Union"). ln 200 7, the Union WiJJJ holding elections for various positions. Sieve A ww;i (u Aw ad") and Rlchard Sw..dn.yoki ("StOOnycki") were both runnlng for Chapt~r President on different sletes. Petitioners w~re ~andidat¢$ on Stadnyckits slate. Between Nc,w¢mb¢t 20Q7 and June 2008, Awa.d allegedly sent at least four e-mfiils concen'1ing the ele¢tlon to DEP 6mplo~li!ls from his DEP wJd.ress. DEP prohibits employees from using DEP e-m\1il for lobbying or political purposes. OUl ~-mailed the Director of Labor Relations, Denise Dyce ("Dye~"), an<;t askea her if she could use an outside, private e-mail address to respond to one of Awnd's messages, which purportedly eontained dispa.ragin,g remarks against petitioners. Oyce il'lfo.rmed Oill that she could not use an outside e-mail for campaign-related material because then the petitioner would still be using the DEP system to distribute campaign information. On December 6. 2007. DEP employees allesedly received two campaign e-mails from the then-current Union president, Claude Fort ("Fort"). urging them to vote for A wad's slate. Petitioners believed that these e-mails were sent by A wad. Fort denied sendinS these e-mails. and stated that they were sent from another person•s e-mail address. Moriates then requested that Forr send an email to DEP employees stating that he did not sanction the subject e·mails, and also allow Stadnyck.i to use DEP e-mail to respond. Dyce was alerted to this matter, and. among othertrungs, responded 1 Motion sequence no. 002 has aLready been disposed of and is explained below. 2
t.ha.t, since it hali no proof as to who sent the e·mails, DEP could. not take aotion. At the same time~ the DEP's legal counsel also e•mailed all employees to remind them that e-m.ail should only be used for 'business purposes. Dyee also Informed Morlates to contact the New .York City Department of Investigation ("DOf') ifMoriates wished to pursue the matter. Petitioners sub~equently filed a complaint with the DOl. According to petitioners; DOl would not share its fl.ndings or final report with petitioners. The Union election was held in De<;em.ber 2007 and Stadnycki won the election. For reasons undisclosed. the Union re-ran the election a.tid. in July 2008, it was announced that Stadnycki had won again. On Maroh 24, 2008, pctitionets filed an IPP with the Board against the City respondent$ alleging that they violated. the NYCCBL § 12-306 (a) (1). (2). and (3), when they failed tCI take suffioient action in response to camt'aign-related e-mails. 2 Petitioners theu amended their IPP 0t1. July 3, 2008. Petitioners alleged. ~nat DEP showed favoritism by taklng no meaningful action apin~ Awa~ thereby interfering irt A Ut:~;on el~etl<M'l. Improper practices and good faith bargairti11.g, as set forth bt NYCCSL § 12<~06 {a) (1), (2) and {3), are defined u: a.. Improper public. employer practices. It sh~ll be IU1 improper practice tor a public employer or its agents: (1) tQ interfere with, restrain or coerctl pub He employee$ in the exereisc of their riQbts Qfa:ntli'4 ~n section 12-305 of this chapter; (2) to dominate or interfere with the formation or administration of any public employee organization; (3) to discrimiMte against any employee for the purpose of encoumging or discoura~ing membership in, ot partieipation in the activities of, any public om.ploy'e organization. ' Administrative Code § 12-306. 2 Administrative Code§ 12-301, Chapter 3, is ci'red as the '"'New York City Collective Bargaining Law (NYCCBL)."
Aft~r reviewing the record, the Board found that the ··uncontroverted facts are insufficient to support a finding that DEP violated NYCCBL § 12-306 (a) (2) and derivatively § 12-306" (Petitioners' Amended Petition, Exhibit "A", at 10). The Soard held that a. violation of section 12· 306 (a) (2) occurs under the following circumstances: A labor organization may be considered 1 •dominated" within the meaning of this section if the employee has interfered with its formation or has assisted and supported its operation and activities to such an extent that it must be looked at as the employer's creation instea.o of the ttu~ baraainhli representative of the employees. Interference that is Less than complete domination is found where a.n employer tries to help a. union that it fEivors by vorioUll kinds of conduct. such as giving the favot'l:!d union jmproper privilege, or recognizing a favored union when another union has raised a real representiition .-hum ~n~ini the employee:. involved (Jd.). In ita discwsion. the Bow-d. c:ited. to prior cL\5e history. including the caae. Seabraalc (55 OCB 7 [BCB 1995]). The Board con~;ludcd that "tborto is no alle~a.tlon tl'i&t DEP ever gra.nted Awad-permission to use th~ e-mail system whil~ denyina such opportu.uity to Petitioner;," (/d. ilt 11 ). Tho OCB further noted ti'lat DEP took ite}'s to l\dclre~ the 9ituntton when notin~d, including disciplinary pt0¢¢~diui$ against A wad. The OCB e:on-Hnents thAt, although petitioners may be unsatisfied with the p~e and the extent of DEP'!i resp0\'1$~, th~re 1s no basis to conclude that DEP's courie of cond:uct viohtt~d NYCCBL § 12-306 (a) (2), and derivatively, NYCCBL ~ 12·306 (s.) (l). To determine wheJ;ber an employer violated NYCCBL § 12-306 (a) (3), the Board discussed prior case history and applied the Salamanca/Bowman standard, derived from City ofSalamanca (18 PERB 1 3012 [1985]) and Bowman (39 OCB 51 (BCB 1987]). in which a petitioner has to demonstrate that: 1. the employer's agem responsible for the alleged discriminatory action had knowledge of the employee's union activity; and. 2. the employee's union activity was a motivating factor in the employer's decision. (ld. at 12-13). The Board concluded that although DEP was aware that petitioners were candidates in an upcoming election, it did not discriminate against petitioners because of protected Union activity, The Board also assessed that DEP did not adversely affect petitioners' employment by refusing to 4
allow petitioners to use DEP e-mail for campaigning purposes. Even if, assuming arguendo, ~titionors' campaign was adverse ty a.ffectcd by DEP' s actions, the Board stated that petitioners have not alleged facts which would show that DEP was motivated by a desire to punish or interfere with Urtion activity. In eonclusion, the Board determined that the facts set forth in the pleadings were not sufficient to prov~ that DEP violated NYCCBL § 12-306 (a) (l), (2.) and {3), and the IPP filed by petitioners was deaied. As a result of that decisiol't. petitioners filed a CPLR J\.rti¢1<: 78 proceeding on October 16, ZOOS (motion sequence no. 001) seeking to dismi~s the deeision of the Board on the ifOunds that it was flfbitrary and capricious. OCB and the Board filed e. motion to dismiss, ~.JJ~ging that the petition~s failed to join necessary parties and that the statute of lirnitatiot,s had eliruir~.a.ted th~ possibility ofjoinin¥ these necessary pat1ies. As such, the petitioners' action should not be allowed to proceed. On April 30, 2009. as part of motion sequence 002, New York Supren1e Court Jumiee Nichola:.~ Figueroa issued 11 decision and order in whkh he denied the respondent-9' motion to dismiss. Ht1 further ordered that .. the City of New York anct the New York: Ciey Department of Envirorunentell Protection be joined as respotidonts and that p!:titioners serve thBJU with a notice of amended petition and amended petition within 30 days of the date of this Court's decision" (Petitioners' Amended Petition, Exhibit '"M"). On Ma:y 22, 2009, petitioners filed motion .sequence 003, which was the amended petition as per Justice Figueroa's atd~r. Their amended petition seeks the same relief u.s the original petition. plus the additional relief of requirifig DEP to .:se:nd e-mails to its employees to ex. plain what happened and. also to apologize. The City respondents cross-mO'-'e for a judgment dismissing the petition in its entirety. City respondents argue that this court lacks the subject matter jurisdiction to hear the instant petition, the petitioners failed to join the necessary parties and missed the statute of limitations, and that the petition fails to state a cause of actim~ against City responde*t$, City flilipondents also s~k costs, fees and disbursements. The Board and OCB agree wlth CitY respondents in all of their claims and also seek dismissal of the Article 78 petition. 5
DISCUSS[O N In the .;;onte:x:t of a CPLR Anicle 78 pr~ecding, courts have held that "a reviewing court is not entitled to interfet(: in the exercise of discretion by an administrative agency unless there is no rational basis for the exercise, or the a.ttion complained of is arbitrary and capricious" (Matter of Soho Alliance v New York State Liquot Authority, 32 AD3d 363, 363 [Pc Dept 2006], citlng to Mattei' of Pel/ v Board of Educ. of Union Frtt Sr:hool Dis/. NQ, 1 of Towru of Scar.sdale and Mamarolteck. Westchester County, 34 NY2d222 (1974];..ree CPLR 7803 [3]). An agency's decision is considered arbitrary if it is '"without sound basi$ in reason and is generl:\lly taken without reprd to the facts" (Matter of Pel/ v Boa1'd of Educ. of Union Free School Di$f. No. l of Towm of Scarsdale and Mamaromtck, WesrchesteJ• County, 34 NY2d at 231 ). Petitioners continue to alle~e that DEP created an inequity during an electiml and thig favored one cwtdidatc ovc:r another. They claim that fraud occurred because DEP had been notified of the e-mails, yet did not address them adequately. The Board, after reviewing the undisputed facts and the documents submitted, concluded that DEP's actions did not vfola.te a.ny collective bargaining liWB. In summary, the Board concluded tha.t DEP never granted A wad permission to use DEP e-mail while denying the petitioners the same right. It noted that DEP did act to address the situation and took progressive actions. Although petitioners may be unsatisfied .tt the type of action taken, the Board foW\d that the DEPts conduct did not violate My collective bar.g:ainin9 statutes. The Board noted tlult DEP did not intclfere with any protected activity or take any adverse employment-related aetion 1\gainst petition~rs. The Board issued a detailed analysis of the petitioners' situation and applied the relevant law, The Board's determination w~ not irrational, arbitrary or capricious. Accordingly, the court will not disturb the Board's decision to deny the IPP. and petitioners' motion is denied. Additionally: in the context of an Articlt!! 78 proceeding "an agency's determination. acting pursuant to legal authority and with:ir1 its ar¢a of expertise, is eatitled to deference" (Matter of Tockwotten Associates> LLC v New York State .Div. ofH ousing and Community Renewal, 7 AD 3d 453 1 454 [1 11 Dept 2004]). Section 12-309 (a) (2) ¢fthe NYCCBL outlines the Board's power to prevent and remedy improper public employer and public employee organiza-tion The Board is a neutral party made up of City, Union and 1ab¢r repre~ntatives. Specifically, in the realm 6 x~~ l3r~3S~l dH w~oe:11 0102 91 ~e
ofinterpreting the NYCCBL. the court: has relied on the Board and its eKpertise. AS th~ Court held in }Jatter ofC lty ofN ew York v Uniformed Fire Officers .A.s$cr;iation, Local 8J4, IAFF. A..FL-C/0 (95 NY2d 273 1 284 [2000]), 11 [t]he aet~rmination of the BCB, the statutorily authorized neutral adjudicative agency charged with making determinations under the New York City Collective Bargaining Law, will not be disturbed unless it is arbitrary and capricious or an abuse of discretion, or unless arbitration of the dispute offends public policy." Petitioners' statements aHeging that the Board's decision is arbitrary and capricious are unfounded. Accordingly, the petition is denied. Petiti2ners• Request for a Judicial HeafiniOQ tbe IPP: Petitioners request a judicia) hearing in their amended petition. The courts have held that the Board ..h as exclusive non~delegable jurisdiction to hear improper labor pra.ctice claims over which Supreme Court lacks original subject matter jurisdiction [internal citation omittedY' (Marter of Patrolmen's Bent\lolsnt Association ofC ity ofN. Y. v CityofNtw York. 293 AD2d 253; 253 [1 •t Dept 2002]). Accordingly. petitioners are not entitled to a judicial hearing. For p1.1fPoses of this Article 78 proce~:~ding, even if petitioners were successful, they would be entitl<id to no mor~ thart a. de novo hearing in front of the Board. Statute of Limitations and. Nettesaary Parties; The Board and OCB argue that, pu.rsuant to the NYCCBL, petitioners are allowed 30 day~ after the BotlU'd' s decision to cha.lleni,e a decision. Th~y claim that the City respondents are necessary parties, and that they were rtever nam.ed in a timely manner tor this proceeding. The court determined that, ~lthOJJgh the City respondents are necessary parties, petitioners were allowed to e:c;:rv¢ them. an Amended petition within 30 days of the date of that order. At the time of the order, the eourt was awnre of the relevant statute of limitations and of the petitioners' failure to join necessary parties. Petitioners served city respondents ""ithin 30 days with an amended petition, as ~the ¢0Urt' !I order. Accordingly, any claims made by all respondents regarding petitioners' failure to join necessary parties and the applicable statute oflimitatiods, have already been addressed by the court, are currently irrelevant, and will not be considered at this time. Other Forms qf Relief ReQ.UIIttd by Pettttor,f'rs: Petitioners request several declaratory judgments from the court, including compelling DEP to send e-rnails to its employees, ordering respondents to provide equal employment opportunities 7 0 l • .:1
for petiticners in the future, among other thing.s. do not issue advisory opinions for the fundamental reason that in this Sta.te opinions is not the exercise oft he judicial function [internal quotation marks and citations omittedr (Matter ofJ oint Queemview Housing Enterprise, Inc. l 991]). This court 'Will not issue an advisory opinion as a ·preventive measure for petitioners. Accordingly, there is no basis for these forms of relief at this time, and they are denied. extent that the petitioners are seeking some sort of prospective injunctive relief, they have offered no basis for such a remedy. The court h" comidered petitioners' other contentions and fmds them without merit. CONCLUSION Accordingly. it is hereby ADJUDGED that the petition is denied and the proceeding is dismissedi and it is further ORDERED that the oross motion of the respondents New Ya rk City D~ptittntnt of Environmental Protection and City of New York i8 grru1tcd in its entirety. DATED: 1\farda 15, 2010 l • .::1 It is well settled that, "[t]he courts of New York 1 [t]he giving of such 1 v Gra;;son. 179 AD2d 434, 436 [l.Jt Dept To the E e NT x ~ ·#~~ O+iTER SHERWOOD J.S.C.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.