COURT DECISIONS

Matter of Civil Serv. Tech. Guild, local 375, AFSCME v City of New York

2007 NY Slip Op 32728(U) August29,2007 Supreme Court New York County Docket Number: 0109626/2007 Judge: Carol R. Edmead Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://wYJw.nycourts.gov/ecourts) for any additional information on this case.

This opinion is uncorrected and not selected for official publication.

SUP~ME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PRESENTo 6:/mee.l_ PART -:Js-Justice

WDEXNO. MOTION PATE •V· C/-y tff/l};w~r/< MOTION Sl:cL NO. MOTION CAL NO.

The foUowlng papers, numbered 1 to--.. were ,..d on tbio motion to/for ~ fAf.IRS NUMBEREQ . . · Notice of Motion/ Order to Show Cause - Affidavits - Exhibits .•• Answering Affidavits ..:... Exhibits ------------------------------Reply1ng Affidavits ------------~-------------------

Cross-Motion: ~es 0 No

Upon the foregoing papera, It Ia ordered thet thfe motion .0. . ·o In accordance with the accompanying Memorandum Decision, it is hereby w a: a: w ORDERED that petitioner's order to show cause for an order entering a Temporary w u. . Restraining .Order and Preliminary Injunction, and maintaining or returning the parties to the a: status quo until a final decision is rendered in four related improper practice charges pending b¢fore the New York. City Office of Collective Bargaining, Board of Collective Bargaining ~ -1 ("BCB") is denied; and it is further ~ . u .. . . . ORDERED that the cross-motion io disniiss the petition in its entlrety is granted. . I C.) 'I w I a.. The Clerk may enter judgment a<cordingly. F / L· E I) I J U,) w a: AUG J 12007 -tJ) ~'=WroRK . .. ·. w CJ) -< Ci.ERK'S orr~:c .. ~ (.) zw -0~ ... .(.I..). 0:;::, Dated: t/:L't/4 ~a~· ~..., Check one: ~ FINAL DISPOSITION 0 NON-FINAL DISPOSITION

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35 ----------------------------------------x In the Matter of the Petition for Injunctive Relief and for a Judgment under Article 78 by

CIVIL SERVICE TECHNICAL GUILD, Index No. 109626/07 LOCAL 375, AFSCME,

Petitioner, DECISION/ORDER -against-.. . -.. ~. CITY OF NEW YORK, NEW YORK CITY OFFICE OF COLLECTIVE BARGAINING, BOARD OF COLLECTIVE BARGAINING and MARLENE GOLD, as Chair,

MEMORANDUM DEOSION Petitioner Civil Service Technical Guild, Local375, AFSCME ("Local 375," the "Union" or "petitioner"), moves by order to show cause pursuant to Civil Service Law ("CSL") § 209(5), to have this court enter a Temporary Restraining Order and Preliminary Injunction, maintaining or returning the parties to the status quo until a final decision is rendered in four related improper practice charges pending before the New York City Office of Collective Bargaining, Board of Collective Bargaining ("BCB''). Specifically, petitioner moves for an order 1. restraining respondent City of New York ("respondent" or the "City") . . . from taking any action that would alter the status quo with respect to CityTime, or any data collection device or application used in conjunction with CityTime, including but not limited to implementing CityTime for Local 375-represented employees at any additional agencies or implementing any new CityTime hardware or application, the use of which is required for Local 375-represented employees;

2. restraining respondent City of New York . . . from taking any unilateral action relating to CityTime, or any data collection device or application used in

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conjunction with CityTime, that affects any Loca1375-represented employee without bargaining with Local375;

3. directing respondent City of New York ... to take any actions necessary to restore the status quo ante that existed prior to unilateral implementation of CityTime as to Local375-represented employees, including but not limited to rescinding any requirement that Local375-represented employees at any agency use biometric 1 hand-geometry scanners, the WebClock application, or any other data collection device or application developed to be used in conjunction with City Time.

Petitioner also seeks an order pursuant to CPLR Article 78 annulling the determination dated June 28, 2007 by respondents BCB and Marlene Gold ("Gold), as Chair of the BCB. 2 The Parties Local375 is the certified collective bargaining representative of employees in the engineering and scientific bargaining unit. Local375 represents over 6500 New York City employees who work in titles such as Architect, Engineer, Construction Project Manager, City Planner and Urban Designer, at approximately 30 mayoral agencies, including the Department of Design & Construction ("DDC"), Department of City Planning ("DCP''), Department of Homeless Services ("DHS") and the New York City Fire Department ("FDNY"), as well as at public authorities such as New York City Transit, the Health and Hospitals Corpomtion and the School Construction Authority. Respondent City, a municipal corporation, and the mayoral agencies employing members of the Local375-represented bargaining unit, are subject to the provisions ofthe New York City

1 According to petitioner, "Biometrics" is the comparison of biological traits or physical characteristics against a template for the purpose of identification.

2 After exhaustive oral argument, petitioner's request for an Interim Stay enjoining respondent City of New York from taking any action contrary to the relief sought by petitioner herein, pending the return date on the instant Order to Show Cause, was denied by this court.

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Collective Bargaining Law, Administrative Code, §12-301 et seq. ("NYCCBL"). The Mayor's Office of Labor Relations ("OLR") is the City's collective bargaining representative. Respondent BCB is the impartial tripartite agency empowered to determine improper practice charges under the NYCCBL. Members ofthe BCB consist of seven members: two "city" members appointed by the mayor, two "labor" members appointed by the municipal labor committee and three "impartial" members elected by the city and labor members. 3 Respondent Marlene A. Gold is sued herein in her capacity as Chair ofBCB. Background By or about June of 2006, OLR notified Local 3 75 of its intent to implement the CityTime system and the biometric hand-geometry scanners at DDC. CityTime is an automated payroll and timekeeping system developed for the respondent by outside consultants and contractors. Prior to CityTime, no bargaining unit employee ever punched a time clock at DDC. Instead, all employees submitted paper time sheets on which they accounted for the hours worked that week, as well as requested annual leave, documented absence for illness or submitted overtime requests. Daily time recording was not monitored by timekeeping staff, who received only the formal time sheets for payroll purposes, and according to petitioner, their main concern was not the actual starting and ending times but whether employees put in a full seven-hour work day. "Above salary cap" employees who account for their time on a weekly basis entered arrival, departure and meal times for all days worked when completing their time sheet at the end

3 Shanker v. Helsby, 676 F.2d 31 [2d Cir. 1982]; Buffalo Teachers Federation, Inc. v. Helsby, 515 F.Supp. 215 [DCNY 1981]).

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of the week. However, the actual practice for "below salary cap" employees, who were required to account for their arrival and departure time on a daily basis, varied considerably from unit to unit, as to, inter alia, how closely, if at all, supervisors monitored compliance, and whether exact arrival and departure times were recorded or whether the document simply reflected the employee's normal schedule. City Time replaced paper time sheets with an electronic time sheet accessed on a desktop computer. Employees who are weekly time recorders must manually enter their morning arrival, evening departure and meal times for the entire week when they certify and submit their electronic time sheets, much as they did with the paper time sheets. Requests for annual leave, documentation of sick time and submission of overtime will ultimately appear on the electronic time sheet, but require employees to navigate a series of fields in the system to accomplish this. However, upon implementation ofCityTime, employees who were ostensibly using daily sign-in sheets were required to "punch in" (or more accurately, "palm in" and "palm out"} at the beginning and end of the day by inserting their hand into a biometric hand-geometry scanner. These employees had to submit to having a template made of the shape and measurements of their hand. The employee's hand geometry was stored in the system so that each time a hand is placed into the scanner to register arrival or departure time, it is checked against the template. Under CityT ime, times captured by the scanners are transmitted and appear, after an interval of time, on the electronic time sheet; however, unlike the manual entries made by weekly time recorders, the scanned times are fixed and cannot be changed by the employee, even in the event of an error. In response, Local375 filed four successive Improper Practice Petitions which are -4-

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pending before BCB. The charges, as articulated by petitioner, all relate to respondent's implementation of CityTime, and of intrusive and onerous hardware and software otherwise unnecessary to the operation of CityTime, including biometric scanners and a tracking application known as "WebClock." WebClock is a web-based application in one's personal computer that monitors when employees log on and off a computer. The initial case (the "Initial Charges") would resolve the underlying issue of whether respondent was obligated to bargain with the Union over the decision to implement a mechanical timekeeping system that is, according to the Union, more intrusive and requires more participation by employees and/or bargain over the impact of such implementation upon terms and conditions of employment, such as existing time and leave policies. Petitioner's Contentions The Union claims that respondent engaged in a series of calculated and continuous violations of the NYCCBL at DDC and DCP, including ( 1) refusing to negotiate mandatory subjects of bargaining, such as changes effected in time and leave policies by CityTime, the biometric scanners and/or WebClock;

(2) unilaterally changing the aforementioned time and leave policies without bargaining with Local 3 7 5;

(3) unilaterally installing and mandating use of intrusive technology, such as biometrics, without bargaining with Local 375 although obligated to do so under BCB precedent regarding automation of timekeeping functions;

(4 ) unlawfully interfering with the exercise by employees of their rights under the NYCCBL, including misleading Union officers regarding possible settlement to delay adjudication of the initial case at BCB and undermining members' perception of the efficacy of their representative and its ability to obtain a remedy for repeated improper practices by the City; and

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I[* 7 l I I (5) refusing to negotiate the practical impact of the CityTime system and its hardware and applications, a per se violation of the NYCCBL.

Since the Initial Charge was filed with BCB, respondent unilaterally implemented CityTime at an additional eight mayoral agencies without bargaining with Local 375. Respondent also Wlilaterally introduced WebClock, the second ancillary technology for CityTime. Respondent has also informed the Union that it will continue to consider any new technology that develops, which could bring even further changes to the system. Each instance of unilateral action by respondent presents new or different factual and legal issues and therefore turns the determination of the underlying issue of bargaining obligation into a "moving target," "capable of repetition yet evading review." An injunction restoring the status quo would give BCB the opportunity to conclude its adjudication of this significant case, which is one of first impression in this jurisdiction and presents a labor issue of national import, the use of employee-tracking technology in the workplace. The biometric hand-geometry scanners represent an unprecedented level of intrusion which has greatly unsettled rank-and-file employees who are required to use them, and it is of critical importance to the Union and its members that such radical alteration of the way in which hard-working professionals account for their time be collectively bargained rather than imperiously foisted on them. The biometric scanners have been a source of great distress to Union members, who find them invasive and demeaning and are anxiously awaiting a ruling from BCB. But the Union's seeming inability to stop respondent's ongoing unilateral actions has eroded members' confidence that Local375 can aggressively protect their rights under the NYCCBL and that

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BCB 's processes can offer them true redress. Employees who are required to scan their hands for arrival and departure times at the beginning and end of their work day use the CityTime system's electronic time sheet for all functions. They manually enter the times they depart for and return from the meal period, as well as submit leave and overtime requests, in the same fashion as non-scanners. There is no technical or operational reason why they could not manually enter arrival and departure times as well, and as the City has conceded. external devices or supplemental applications are not necessary to automate time and payroll functions with CityTime, which can operate by simply utilizing the electronic time sheet In unilaterally implementing CityTime at DDC, respondent abrogated BCB precedent that established an employer's obligation to bargain over implementation of a mechanical time~ keeping system if the new system requires a "material change in the degree of employee participation" or is "more intrusive" than the prior one. It is clear that the biometric hand-geometry scanners are demoralizing, and significantly more intrusive than sign-in sheets, which merely involves applying pen to paper, as opposed to inserting a body part into high-tech machinery. CityTime also involves more participation by employees. In the past, time entries and leave and overtime requests could all be done on the one paper time sheet; now all employees must navigate multiple computer fields to enter leave and overtime, and daily recorders have to toggle between two modalities, scanners for their arrival and departure times and the CityTime system on the computer for everything else. Employees are also required to participate in an additional step in the timekeeping procedure that was not previously required, the process by which a biometric template of the shape oftheir hands is -7-

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created and stored. In addition to the obligation to bargain over automation of timekeeping, respondent was required to have bargained over alterations to existing time and leave policies at DDC, which is, by statute, a mandatory subject. Inclusive of the time and leave matters that should have been bargained include the following: • There was a long~standing policy in many units at DDC whereby supervisors and employees by mutual agreement, had flexibility with respect to timekeeping. For example, an employee scheduled to work 9-5 who was delayed, could simply work 9: 15 - 5:15. CjtyTime has eliminated that flexibility;

• With paper time sheets, time was calculated by minute. The CityTime system roWlds the time captured by the biometric scanner to the nearest quarter-hour;

• Under CityT ime, employees taking a partial day of leave who return to work are automatically docked for a meal period.

Even if arguendo BCB were to find that respondent was not obligated to bargain over the decision itself, NYCCBL § 12-307(b) dictates that it must bargain over the practical effects of implementation. CityTime and the scanners significantly impacted bargaining unit employees at DDC in a number of ways, including: • Although time sheets cannot be certified Wltil the employee has scanned out at the end of the last day of the week, it can take up to 20-40 minutes Wltil the scan-out time registers on the electronic time sheet In order to certify their time sheet in time to receive a direct deposit on payday, rather than a paper check, employees who wiJI be absent at the beginning of the following week have had to wait on their own time on Friday afternoon for their scan-out time to register in the system;

• Under CityTime it was so difficult to take partial sick days that employees who would otherwise have returned to work after a doctor's appointment, or who would have come in even feeling ill to take care of an important task and then go home, simply took the entire day, causing the employee to lose more sick time from his or her bank than had previously been necessary;

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• Employees continued to have concerns about sanitary conditions of the scanners; • Employees who work in the field some or all of the time, or who work "non· standard" schedules, continue to have difficulties recording their time and being properly paid.

On February 2, 2007, OLR informed petitioner that it would no longer dictate policy regarding the biometric hand-geometry scanners on a citywide basis; instead each Commissioner could decide whether or not to mandate use of the scanners at his or her agency. This change was announced 11 days after a well·attended and highly publicized City Council hearing regarding CityTime and the biometric scanners, and 10 days after an article on the hearing and the biometrics issue appeared on the front page of the "Metro" Section of the New York Times. On February 9, 2007, DDC Corrunissioner David Burney ("Burney")· exercising his new-found discretion- issued an e-mail annolUlcing OLR's policy change regarding the scanners to DDC employees and informing them that "in the next few weeks" a software change would allow them to record their departure and arrival by computer. There was nothing in Burney's e­mail that indicated that the computer itself would be used as a time clock~ the software change referred to could have been to allow for manual entry of daily arrival and departure times on the electronic time sheet. The Union therefore held off pressing BCB to schedule additional hearing dates in the hope that the pending improper practice charge could be resolved. However, DDC continued to require use of the scanners for the next several months, not weeks. Union representatives and members were taken by surprise when DDC annoWlced the unilateral implementation ofWebClock in June, 2007. WebClock was also unilaterally implemented at other agencies in addition to DDC, including DCP. There is no question that Burney and/or OLR had to know that the continued presence of -9-

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the scanners months after Local375 supposedly secured Burney's commitment to introduce a less objectionable method of recording time, and the sudden appearance of another onerous timekeeping method without bargaining with the Union, made members perceive Local 375 as ineffectual. What had appeared at the time to be a huge victory was now hollow. Union members were frustrated and disenchanted by the Union's seeming inability to stop mandatory use of what many DOC employees viewed as invasive "Big Brother" biometric scrutiny~ or to stop management from making unilateral changes without bargaining with the Union. Respondent City's Contentions Respondent City ofNew York opposes injunctive relief and cross moves to dismiss the petition on the ground that petitioner failed to demonstrate that the BCB's decision that irreparable harm did not exist, was irrational, which is to say arbitrary, capricious or unlawful. Petitioner cannot demonstrate any irreparable harm, let alone irreparable harm which would render a later BCB decision ineffectual, and therefore the BCB 's determination not to seek or authorize the Union to seek an injunction cannot be considered irrational and must be upheld. The BCB 's finding was rationally based and well founded in precedent. Moreover, petitioner cannot make the showing that absent the injunction irreparable harm will occur rendering and ultimate decision by the BCB "ineffectual." Under CSL § 209-a(S), petitioner must not only prove that the usual injunction standards are met, but it must also show that the alleged irreparable harm will render any decision by the BCB "ineffectual." Here, there is no evidence that the new timekeeping system could not be removed if the BCB rules for petitioner. Petitioner's claim that unless a preliminary injunction is issued, the City will move forward with the new record keeping systems and then BCB will shirk its duty -10~

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and be less inclined to order removal of City Time, is baseless. There is no evidence that BCB will fail to perform its function simply because the practice at issue has been ongoing for a time. Nor is there evidence that if the underlying matter ends in a BCB decision favorable to petitioner, the City would do anything less then comply with such lawful determinations. Indeed. nothing is contemplated, nor has anything been done, which could not be reversed. Thus, petitioner has not shown that absent injunctive relief a decision by the BCB would be "ineffectual." Further, petitioner cannot establish that irreparable harm would result if implementation ofthe CityTime system is not halted. Petitioner's argument that expanded use ofCityTime will necessitate the filing of more Improper Practice petitions, does not create irreparable harm. Also, petitioner's additional argument that if the current use and further implementation ofCityTime continues the BCB will be less willing to order cessation of the program due to the expense of removing the system, is unsupported by any law or fact. Indeed, BCB has previously ordered remedial action despite the cost to the City. In this case, the greatest harm petitioners alleged is that to be timely they may have to leave for work earlier and return from lunch earlier to clock in on time. Petitioners similarly assert that they may have their actual time rounded up or down. Such events, were they considered to be harms, could be remedied by an award of damages and thus cannot constitute an irreparable harm. And, to the extent petitioner argues that the Union would appear ineffective if it cannot halt implementation of a new time keeping system until the administrative process is completed, such an argument is both too speculative and too remote to establish irreparable harm. Nor have the elements of injunctive relief((l) a likelihood of success on the merits; (2) -ll-

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irreparable injury~ and (3) the balance of the equities tipping in petitioner's favor) been met. Petitioner also has not demonstrated a likelihood of success on the merits. Petitioner's claim that City respondents violated the Collective Bargaining Law by not negotiating over the upgrade of the timekeeping system lacks merit. Under collective bargaining law, upgrading the time keeping system and installing time keeping equipment are managerial prerogatives and therefore do not need to be bargained over before implementation. Moreover, the installation of time keeping equipment does not impact on a term and condition of employment since it is merely a change in method of recording hours worked. What had been a manual/paper procedure will now be a mechanical/automated procedure. The City Time hand scanner and WebClock program simply automate, mechanize and computerize the City's time keeping process. It brings record keeping into the 21o~ century. It improves record keeping and reduces fraud. These devices qualify as equipment and the decision to install them clearly falls within the realm of management prerogative, and thus not subject to bargaining. In addition, it is well established that an employer has the absolute right to maintain administrative control of employees' attendance and has the right to record the attendance of its staff. Nor does the fact that an employee now uses a hand scanner constitute a more intrusive method of time keeping. As an initial matter, it must be recalled that all City employees undergo a background check and fingerprinting. The hand scanner, which notes the employee's hand's "geometry,"and not the employee's fingerprint, is akin to a signature, and is less intrusive than fingerprinting. It enables the system to insure that the person "punching in" is the employee and not another person acting on the employee's behalf. Nor does it impact the terms and conditions -12-