Summary
declining to enjoin Vaccine Mandate upon challenge from labor unions
Summary of this case from Coughlin v. N.Y. State Unified Court Sys.Opinion
908328-21
10-15-2021
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO; New York Supreme Court Officers Association, ILA, Local 2013, AFL-CIO; New York State Court Officers Association; Court Officers Benevolent Association of Nassau County ; the Association of Surrogate's and Supreme Court Reporters Within the City of New York; and Suffolk County Court Employees Association, Inc., Petitioners, For Injunctive Relief Pursuant to Civil Service Law § 209-a (4) New York State Public Employment Relations Board, Necessary Party pursuant to Civil Service Law § 209-a (4) (b), v. NEW YORK STATE (UNIFIED COURT SYSTEM), Respondent. (Proceeding No. 1) In the Matter of the Application of District Council 37, AFSCME, AFL-CIO, Local 1070, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. New York State Public Employment Relations Board, and New York State (Unified Court System), Respondents. (Proceeding No. 2)
Civil Service Employees Association Counsel's Office, Steven Klein, Esq, 143 Washington Ave, Albany, New York 12210, Attorney for the Petitioner Civil Service Employees Association SCOA Office of General Counsel, Richard E. Mulvaney, Esq., 120 State Street, 2nd Floor, Albany, NY 12207, Co-Counsel for the Petitioner Supreme Court Officers Association, ILA, Local 2013 The Denigris Law Firm PLLC, Stephen G. DeNigris, Esq., Po Box 14643, Albany, New York 12212, Co-Counsel for the Petitioner Supreme Court Officers Association, ILA, Local 2013 Pat Bonanno & Associates, P.C., Pat Bonanno, Esq., 175 Main St Ste 507, White Plains, New York 10601, Attorney for the Petitioner New York State Court Officers Association Davis & Ferber, LLP, Alex Kaminski, Esq., 1345 Motor Pkwy, Islandia, New York 11749, Attorney for the Petitioner Court Officers Benevolent Association of Nassau County Clifton Budd & Demaria LLP, Douglas Catalano, Esq., Stefanie Munsky, Esq., 350 5th Ave Fl 61, New York, NY 10118, Attorneys for the Petitioner the Association of Surrogate's and Supreme Court Reporters within the City of New York Archer, Byington, Glennon & Levine, LLP, Paul Brown, Esq, 1430 Broadway, Suite 1107, New York, NY 10018, Attorney for the Petitioner Suffolk County Court Employees Association, Inc District Council 37 Legal Department Office, Michael Coviello, Esq, 125 Barclay Street, New York, New York 10007, Attorney for the Petitioner District Council 37, AFSCME, AFL-CIO New York State Public Employment Relations Board Counsel's Office, Michael Thomas Fois, Esq., Ellen M. Mitchell, Esq., PO Box 2074, Empire State Plaza Bldg 2, 20th Floor, Albany, New York 12220, Attorneys for Necessary Party Paul, Weiss, Rifkind, Wharton & Garrison LLP, Gregory F. Laufer, Esq., Michael E. Gertzman, Esq., Bruce Birenboim. Esq., Liza M. Velazquez, Esq., Jonathan Hurwitz, Esq., Amy L. Barton, Esq., 1285 Avenue of the Americas, New York, New York 10019-6064, Attorneys for the Respondent
Civil Service Employees Association Counsel's Office, Steven Klein, Esq, 143 Washington Ave, Albany, New York 12210, Attorney for the Petitioner Civil Service Employees Association
SCOA Office of General Counsel, Richard E. Mulvaney, Esq., 120 State Street, 2nd Floor, Albany, NY 12207, Co-Counsel for the Petitioner Supreme Court Officers Association, ILA, Local 2013
The Denigris Law Firm PLLC, Stephen G. DeNigris, Esq., Po Box 14643, Albany, New York 12212, Co-Counsel for the Petitioner Supreme Court Officers Association, ILA, Local 2013
Pat Bonanno & Associates, P.C., Pat Bonanno, Esq., 175 Main St Ste 507, White Plains, New York 10601, Attorney for the Petitioner New York State Court Officers Association
Davis & Ferber, LLP, Alex Kaminski, Esq., 1345 Motor Pkwy, Islandia, New York 11749, Attorney for the Petitioner Court Officers Benevolent Association of Nassau County
Clifton Budd & Demaria LLP, Douglas Catalano, Esq., Stefanie Munsky, Esq., 350 5th Ave Fl 61, New York, NY 10118, Attorneys for the Petitioner the Association of Surrogate's and Supreme Court Reporters within the City of New York
Archer, Byington, Glennon & Levine, LLP, Paul Brown, Esq, 1430 Broadway, Suite 1107, New York, NY 10018, Attorney for the Petitioner Suffolk County Court Employees Association, Inc
District Council 37 Legal Department Office, Michael Coviello, Esq, 125 Barclay Street, New York, New York 10007, Attorney for the Petitioner District Council 37, AFSCME, AFL-CIO
New York State Public Employment Relations Board Counsel's Office, Michael Thomas Fois, Esq., Ellen M. Mitchell, Esq., PO Box 2074, Empire State Plaza Bldg 2, 20th Floor, Albany, New York 12220, Attorneys for Necessary Party
Paul, Weiss, Rifkind, Wharton & Garrison LLP, Gregory F. Laufer, Esq., Michael E. Gertzman, Esq., Bruce Birenboim. Esq., Liza M. Velazquez, Esq., Jonathan Hurwitz, Esq., Amy L. Barton, Esq., 1285 Avenue of the Americas, New York, New York 10019-6064, Attorneys for the Respondent
Adam W. Silverman, J.
Since early 2020, the COVID-19 pandemic has impacted the world immeasurably. The rate of lives lost to this virus ebbs and flows on a near daily basis and millions of people have perished. Here in New York State, whether by government order or otherwise, nearly all facets of our lives have been forced to change. From mask wearing, hand santizer use, and remote learning for our school-aged children, to virtual conferences and grocery deliveries, so much of our daily lives have been turned upside down. Those who represent the State Unified Court System's (hereinafter UCS) backbone-the nonjudicial employees-have, despite a continuously changing landscape of work requirements, persevered and adapted to ensure the judiciary remains operational. Without them, the wheels of our justice system, and with it, our vehicle for maintaining a civil society, would come to a grinding halt.
In this case, various labor unions that represent these nonjudicial employees challenge UCS's most recent policy change that would require their members obtain a COVID-19 vaccination or be barred from reporting to UCS facilities. This Court is not asked to determine whether the policy change is itself legal or whether it was implemented legally. Those questions are left to others to determine. The only question before this Court is whether Petitioners can satisfy the Taylor Law's two requirements necessary to stop the policy's implementation while the underlying question of its legality is determined by the Public Employment Relations Board (hereinafter PERB).
Facts
The material facts of this case are uncontested. Petitioners represents many nonjudicial employees of the court system. Respondent UCS administers the judicial branch of New York State government, overseeing almost 1,300 judges and 15,650 non-judicial employees. UCS's "mission ... guaranteed by the First, Fifth and Fourteenth Amendments to the U.S. Constitution ... is to provide an accessible forum to every litigant seeking redress of grievances" ( Matter of Lippman v. Public Empl. Relations Bd. , 296 A.D.2d 199, 204, 746 N.Y.S.2d 77 [3d Dept. 2002], lv denied 99 N.Y.2d 503, 753 N.Y.S.2d 806, 783 N.E.2d 896 [2002] ). Beginning in March 2020, this mission was severely impacted, as was society as a whole, by COVID—19, for which New York State, as an epicenter of the early pandemic in the United States, experienced unique and extreme circumstances affecting every aspect of daily life. In the face of this nearly unprecedented emergency, Petitioners’ members and UCS were forced to continuously adapt to safely keep the State's courts operational. UCS repeatedly implemented new technology to fulfill the judiciary's mandated mission.
On August 25, 2021, Chief Administrative Judge Laurence Marks, following Chief Judge DiFiore's statement two days prior, announced that UCS would be instituting a "mandatory vaccination program [that would] take effect on September 27, 2021." In explanation of this policy and its genesis, UCS submits the affirmation of Justin Barry, its Chief of Administration. Barry swears that, despite hopes in the Spring and early Summer of 2021 that the pandemic was waning, "infection statistics increased dramatically as a result of the Delta variant," including both national statistics and internal court system statistics. At the same time as infection rates were increasing, UCS "was seeking to increase operations and to achieve pre-COVID-19 capacity for criminal trials while also complying with guidance from" the Center for Disease Control and the Department of Health. On September 7, 2021, UCS "implemented a mandatory testing program requiring all judges and employees to submit proof of weekly COVID-19 testing unless they were fully vaccinated." By that time, "the number of judges and employees who had submitted proof of vaccination [had risen] to about 70%." Having determined that vaccination rates among staff were insufficient to ensure safe and continuous expanded operations, UCS decided that, upon full-use vaccination approval from the United States Food and Drug Administration (hereinafter FDA), UCS would institute a policy requiring all judicial and nonjudicial staff to be vaccinated. On August 23, 2021, the FDA announced its final approval of the Pfizer COVID-19 vaccine and, later that same day, Chief Judge DiFiore announced that UCS would implement a mandatory vaccine policy for judges and non-judicial employees lacking an approved medical or religious exemption.
Less than a month earlier, on July 28, 2021, UCS notified the 12 unions representing court employees that all employees "who are not vaccinated will be required to be regularly tested for COVID-19" and that UCS would "be reaching out to all of [the] unions shortly to discuss [their] plans for implementation" including "details on which [UCS] would be seeking [union] input." The parties met regarding the testing policy on August 5, 2021 and August 10, 2021. Meanwhile, on August 9, 2021, Chief Judge DiFiore publicly announced that "employers, institutions and state and local governments across the country [would] likely be prompted to implement vaccine mandates - a measure that, [UCS] too, [would] seriously consider. And, of course, on that topic, we will keep all of you fully informed." There is no indication in this record that the parties discussed the Mandatory Vaccination Program prior to its implementation.
On September 3, 2021, Petitioner Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (hereinafter CSEA) filed an improper practice charge against UCS with PERB alleging that the Mandatory Vaccination Program initiated by UCS was implemented in violation of Civil Service Law § 209-a (1) (d) because proper negotiations did not occur. Concurrently, CSEA also filed an application for injunctive relief (see Civil Service Law § 209-a [4] [a] ). On September 10, 2021, UCS issued a memorandum regarding the "Mandatory Vaccination Requirement." The memorandum stated, in relevant part, that "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." Regarding non-compliance, the memorandum stated:
For statutory reasons and based on a slightly different procedural history, PERB is a necessary party in Proceeding 1 and a Respondent in Proceeding 2.
"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."
On September 13, 2021, PERB issued a notice of sufficient showing pursuant to Civil Service Law § 209-a (4) (b) and authorized CSEA to proceed in this Court.
On September 13, 2021, Petitioner District Council 37, AFSCME, AFL-CIO (hereinafter DC37) filed an improper practice charge with PERB, on the same grounds as CSEA, alleging that UCS had committed an improper labor practice and concurrently sought similar injunctive relief.
On September 14, 2021, Petitioner New York Supreme Court Officers Association, ILA, Local 2013, AFL-CIO (hereinafter Local 2013) also filed an improper practice charge against UCS with PERB on the same grounds as CSEA and DC37, and also sought injunctive relief.
On September 17, 2021, Petitioner New York State Court Officers Association (hereinafter NYSCOA) filed an improper practice charge with PERB on the same grounds. On September 20, 2021, NYSCOA filed an application for injunctive relief (see Civil Service Law § 209-a [4] [a] ).
On September 17, 2021, Petitioner Court Officers Benevolent Association of Nassau County (hereinafter COBANC) filed an improper practice charge against USC with PERB on grounds "almost identical [to those] filed by CSEA" and sought injunctive relief.
CSEA commenced this proceeding by Verified Petition, Index Number 908328 filed on September 22, 2021, to enjoin UCS "from implementing its mandatory vaccination program." On September 23, 2021, the Court (Ryba, J.) heard oral argument from the parties on a proposed Order to Show Cause, which included a temporary restraining order. On September 24, 2021, the Court (Ryba, J.) signed the order and granted a restraining order. In its accompanying decision, the Court found on the limited argument before it, there was reasonable cause to believe UCS's Mandatory Vaccination Program is an improper practice that violates Civil Service Law § 209-a (1) (d), that employees could suffer irreparable harm, and CSEA itself, "would suffer irreparable harm to its fundamental purpose and diminish the trust of those it represents."
On September 24, 2021, PERB denied DC37's application for relief, and provided the following explanation:
"As to the basis for the application for injunctive relief, DC37's complaints focus on the possible loss of wages for employees who refuse to comply with UCS’ directive. Since DC37 admits that UCS does not identify what actions it may take against bargaining unit members who fail to comply with the vaccination mandate, this allegation is speculative. Beyond DC37's assertions that bargaining unit members might be terminated, no specific harm was alleged. More importantly, any resulting harm would be solely economic in nature. If DC37's improper practice charge is sustained, the order in the improper practice proceeding could require that UCS cease and desist from its actions, return to the status quo, and make affected
bargaining unit members whole with interest. Accordingly, a resulting judgment on the merits of DC37's improper practice charge would not be rendered ineffectual by the absence of injunctive relief"
On the same day, UCS sent an email to all unions stating that "the TRO granted in Albany Supreme Court ONLY applies to nonjudicial employees represented by Petitioner in that matter, i.e., CSEA. Accordingly, this TRO has no impact on the vaccination mandate effective on Monday for employees represented by any other bargaining unit."
On September 24, 2021, PERB issued a notice of sufficient showing pursuant to Civil Service Law § 209-a (4) (b) and authorized Local 2013 to proceed in this Court. In the case's Notice, PERB markedly rejected Local 2013's contentions that bargaining unit members who fail or refuse to comply with the UCS’ Mandatory Vaccination Program may be terminated because that alleged irreparable harm was "speculative and conclusory." PERB found that should Local 2013 successfully litigate "its improper practice charge before PERB, any economic losses may be effectively addressed by a PERB order of relief. Therefore, [Local 2013]’s request for injunctive relief on this basis [was] denied." Likewise, PERB rejected Local 2013's assertion that "bargaining over the at-issue terms and conditions of employment, as well as the processing of its improper practice charge, would take too long, causing its bargaining unit members economic inconvenience and loss of benefits such as accrual time." PERB stated that
"[t]he time that it takes for a bargaining representative to bargain a mandatory subject of negotiation
to completion, or for an agency to complete its statutory processes, is not the sort of action which triggers injunctive relief under the Taylor Law. Again, should [Local 2013] be successful in litigating its improper practice charge, PERB may effectively address such alleged loss of benefits by issuing an order reinstating lost wages and benefits with interest."
On September 26, 2021, Local 2013 filed a Verified Petition seeking the same relief as CSEA. On September 27, 2021, the Court (Ryba, J.) signed an Order to Show Cause and granted a temporary restraining order. The Court's accompanying decision found that the issues in that proceeding were indistinguishable from those presented in the case involving CSEA.
On September 29, 2021, DC37 commenced a special proceeding pursuant to CPLR article 78 against PERB and UCS. Relying in part on the ruling regarding the Temporary Restraining Order in the CSEA proceeding, DC37 asserted that PERB's "actions and inactions were thereby arbitrary, capricious, in violation of law, an abuse of discretion, irrational, contrary to law, and in bad faith, including but not limited to violating Section § 209-a(4) of the Taylor Law through their refusal to perform a statutorily mandated duty to approve Petitioner's request to file for an injunction in the Supreme Court." DC37 also asserts that "[t]hrough the actions of [UCS] in implementing the Mandatory Vaccination Program, and the actions and inactions of [PERB] denying the [DC37's] request to file its own request for an injunction, Respondents unreasonably permitted the Mandatory Vaccination Program for non-judicial employees to proceed against [UCS] bargaining unit members."
On September 30, 2021, PERB issued a notice of sufficient showing pursuant to Civil Service Law § 209-a (4) (b) and authorized COBANC to proceed in this Court. PERB asserted that "[w]hile discipline, including termination, is generally considered to be economic and not irreparable harm, COBANC alleges its members will effectively be forced to be vaccinated." PERB's decision relied in part on the Court's (Ryba, J.) decisions which granted Temporary Restraining Orders to CSEA and Local 2013.
On October 1, 2021, the Court (Ryba, J.), also relied upon its previous rulings in the CSEA and Local 2013 proceedings and issued a decision granting DC37's request for a temporary restraining order pursuant to CPLR 6301.
On October 1, 2021, PERB issued a notice of sufficient showing pursuant to Civil Service Law § 209-a (4) (b) and authorized NYSCOA to proceed in this Court. PERB again relied in part on the Court's (Ryba, J.) Decisions which granted the earlier Temporary Restraining Orders. On the same day, NYSCOA commenced a special proceeding in this Court to obtain an injunction. On October 3, 2021, COBANC also commenced a special proceeding in this Court to obtain an injunction. On October 4, 2021, the Court (Ryba, J.) signed two Orders to Show Cause granting temporary restraining orders and issued accompanying decisions, finding that the issues in both proceedings were indistinguishable from those presented in the previous cases.
On October 7, 2021, UCS moved to consolidate all five special proceedings. The only opposition received by the Court was from CSEA and it was partial in nature, opposing only consolidation with the proceeding commenced by DC37 because it "raises significantly different legal issues than those raised in this matter and in the three other matters." While the Court agreed with CSEA that the DC37 proceeding stands on different legal footing than the other four, that distinction, without any assertion of prejudice, was insufficient to warrant denial of the motion. The Court ordered consolidation of all five cases on October 8, 2021.
As the Court was ordering consolidation of the initial five proceedings, the same day PERB issued a notice of sufficient showing pursuant to Civil Service Law § 209-a (4) (b) and authorized Petitioner Association of Surrogate's and Supreme Court Reporters within the City of New York (hereinafter the Association of Court Reporters) to proceed in this Court. The same day, the Association of Court Reporters commenced a proceeding by Verified Petition, seeking to enjoin UCS. On consent of all parties, this Court granted a temporary restraining order and consolidated the proceeding with this case.
On October 13, 2021, UCS moved to consolidate Suffolk County Court Employees Association, Inc. v State of New York - Unified Court System , No. 618682-21. Petitioner Suffolk County Court Employees Association, Inc. (hereinafter SCCEA) commenced that proceeding in Supreme Court, Suffolk County on October 1, 2021. On October 5, 2021, the Court (Farneti, J.) granted a temporary restraining order and scheduled argument for
October 14, 2021. UCS joined issue on October 7, 2021. In this proceeding, SCCEA objected to UCS's consolidation motion, asserting that the Supreme Court, Suffolk County was already scheduled to hear argument the next day, therefore, a consolidation with this case could cause delay. Although the Motion to consolidate was filed late in the process, which courts do not generally condone, the Court determined that the proceeding would not be significantly delayed, as all parties had already submitted all pleadings and no further adjournment would be required as all parties were prepared to argue on
October 15, 2021. Therefore, the Court consolidated the proceeding with this case.
Oral argument was held on October 15, 2021. Upon consideration of all the papers filed and the arguments made in this proceeding, the Court finds as follows:
Taylor Law
"The public policy of the state and the purpose of [the Taylor Law is] to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government" ( Civil Service Law § 200 ). "The obligation under the Taylor Law to bargain as to all terms and conditions of employment is a strong and sweeping policy of the State ( Matter of Bd. of Educ. of City School Dist. of City of New York v. New York State Pub. Empl. Relations Bd. , 75 N.Y.2d 660, 667, 555 N.Y.S.2d 659, 554 N.E.2d 1247 [1990] [internal quotation marks and citations omitted]; see Civil Service Law § 204 [2] ). The phrase "terms and conditions of employment" means salaries, wages, hours and other terms and conditions of employment ( Civil Service Law § 201 [4] ). The Court of Appeals has "made clear that the presumption that all terms and conditions of employment are subject to mandatory bargaining cannot easily be overcome" ( Matter of New York City Tr. Auth. v. New York State Pub. Empl. Relations Bd., 19 N.Y.3d 876, 879, 948 N.Y.S.2d 842, 972 N.E.2d 83 [2012] [internal quotations marks and citations omitted]).
Removing an issue from the realm of mandatory bargaining requires a showing of "special circumstances where the legislative intent to remove the issue from mandatory bargaining is plain and clear, or where a specific statutory directive leaves no room for negotiation" ( Matter of City of Watertown v. State of N.Y. Pub. Empl. Relations Bd. , 95 N.Y.2d 73, 78-79, 711 N.Y.S.2d 99, 733 N.E.2d 171 [2000] [internal quotation marks and citations omitted]). "A prohibited subject necessarily involves circumstances where a public policy consideration found in a statute, Constitution or a clear common-law principle forbids the employer from surrendering authority through negotiation" (Matter of Spence v. Miller , 48 PERB ¶7004 [Sup. Ct., Albany County 2015], citing Matter of Board of Educ. of City School Dist. v. New York State Pub. Empl. Relations Bd. , 75 N.Y.2d 660, 667-668, 555 N.Y.S.2d 659, 554 N.E.2d 1247 [1990] ). On the other hand, a permissive bargaining subject is addressed to issues that are not mandatorily negotiable because "they are inherently and fundamentally policy decisions relating to the primary mission of the public employer or because the Legislature has manifested an intention to commit these decisions to the discretion of the public employer" ( Matter of Board of Educ. of City School Dist. v. New York State Pub. Empl. Relations Bd. , 75 N.Y.2d at 669, 555 N.Y.S.2d 659, 554 N.E.2d 1247 [citation omitted]).
When a challenge under the Taylor Law occurs, PERB has "exclusive nondelegable jurisdiction" to "issue a decision and order directing an offending party to cease and desist from any improper practice, and to take such affirmative action as will effectuate the policies of [the Taylor Law] ..., including but not limited to the reinstatement of employees with or without back pay" ( Civil Service Law § 205 [5] [d] ). "PERB is accorded deference in matters falling within its area of expertise such as cases involving the issue of mandatory or prohibited bargaining subject" ( Matter of State of New York v. New York State Pub. Empl. Relations Bd. , 176 A.D.3d 1460, 1463, 112 N.Y.S.3d 300 [3d Dept. 2019] [internal quotations marks and citations omitted]). "Deference to PERB is not required, however, if the issue is one of statutory interpretation, dependent on discerning legislative intent, as statutory construction is the function of the courts" ( Matter of Newark Val. Cent. School Dist. v. Public Empl. Relations Bd. , 83 N.Y.2d 315, 320, 610 N.Y.S.2d 134, 632 N.E.2d 443 [1994] ).
Injunction
It is well settled that "[a] preliminary injunction constitutes drastic relief" ( Rural Community Coalition, Inc. v. Village of Bloomingburg , 118 A.D.3d 1092, 1095, 987 N.Y.S.2d 654 [3d Dept. 2014] [internal quotation marks and citations omitted]; see Uniformed Firefighters Assn. of Greater N.Y. v. City of New York , 79 N.Y.2d 236, 241, 581 N.Y.S.2d 734, 590 N.E.2d 719 [1992] ). In stark contrast to the consolidated cases before this Court, injunctions in labor disputes were historically used most often as an anti-labor remedy that impeded collective bargaining (see generally Felix Frankfurter & Nathan Greene, Labor Injunctions and Federal Legislation, 42 Harv L Rev 766 [1929] ). Understanding this context, the Legislature created special procedural protections related to restraining orders and labor injunctions (see CPLR 6313 ; Civil Service Law § 209-a [4] [d] ; Labor Law § 807 ). "Thus, a preliminary injunction ‘should be issued cautiously and in accordance with appropriate procedural safeguards’ " (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C6301:1, quoting Uniformed Firefighters Assn. of Greater N.Y. v. City of New York , 79 N.Y.2d at 241, 581 N.Y.S.2d 734, 590 N.E.2d 719 ).
Under Civil Service Law § 209-a (4) (d), injunctive relief may be granted by the court "if it determines that there is reasonable cause to believe an improper practice has occurred and 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" (see Matter of New York State Pub. Empl. Relations Bd. v. County of Monroe , 24 Misc. 3d 1247 *1 [A], 901 N.Y.S.2d 908 [Sup. Ct., Albany County 2009, Zwack, J.] ; Matter of New York State Pub. Empl. Relations Bd. v. City of Troy , 164 Misc. 2d 9, 12, 623 N.Y.S.2d 701 [Sup. Ct., Albany County 1995, Teresi, J.] ). Here, Petitioners allege UCS committed an improper practice because it failed to bargain in good faith before the Mandatory Vaccination Program was implemented.
In Uniformed Firefighters Assn. of Greater N.Y. v. City of New York , the Court of Appeals held that courts generally have "no inherent absolute power to grant interlocutory injunctions and may not do so in the absence of an authorizing statute" ( 79 N.Y.2d at 239, 581 N.Y.S.2d 734, 590 N.E.2d 719 [internal quotation marks and citations omitted]). Further, the Court held that, particularly in light of the doctrine of primary jurisdiction, "in the absence of some statutory authority, the courts have no power to issue preliminary injunctions to preserve the status quo during the pendency of a proceeding before the [PERB] involving a dispute concerning an alleged improper labor practice or the scope of collective bargaining" and "[w]hether, as a matter of public policy, interim injunctive relief should be available in public sector labor disputes such as this one is a choice that ought to be made by the Legislature" ( id. at 242-243, 581 N.Y.S.2d 734, 590 N.E.2d 719 ).
The injunction statute was adopted in 1994 to address this ruling (see Sponsor's Mem, Bill Jacket, L 1994, ch 695) and as such, its text must be strictly construed (see generally Matter of Mingo v. Chappius , 123 A.D.3d 1347, 999 N.Y.S.2d 271 [3d Dept. 2014], lv dismissed 25 N.Y.3d 1038, 10 N.Y.S.3d 520, 32 N.E.3d 958 [2015] ) (holding statutes in derogation of the common law are to be strictly construed). The initial bill passed by the Legislature provided for a different procedure for seeking injunctive relief, but it was vetoed by then Governor Mario Cuomo. The compromise bill, which became today's law, provides a charging party the ability to petition PERB and then for PERB, upon a finding of reasonable cause to believe an improper practice has occurred and the appearance of immediate and irreparable injury, loss or damage, to itself petition the Supreme Court in Albany County for an injunction or allow the charging party to petition the court for an injunction (see Sponsor's Mem, Bill Jacket, L 1994, ch 695; see also Civil Service Law § 209-a [4] [b] ; see generally Public Sector Labor and Employment Law, Third Edition, 2014 Revision § 8.53).
The statute's prescribed process for obtaining an injunction requires in all cases that a charging party first obtain PERB's approval to seek relief in Supreme Court in Albany County. If PERB "determines that a charging party has not made a sufficient showing and that no petition to the court is appropriate ..., such determination shall be deemed a final order and may be immediately reviewed pursuant to and upon the standards provided by a [proceeding pursuant to CPLR article 78] upon petition by the charging party in supreme court, Albany county" ( Civil Service Law § 209-a [4] [c] ). In such a proceeding, PERB is entitled to significant deference as "the Court's role in reviewing an administrative determination is not to substitute its judgment for that of the agency, but simply to ensure that the agency determination has a rational basis and is not arbitrary and capricious" (Matter of New York State Supreme Court Officers Association v. Lippman , 35 PERB ¶ 7009 [Sup. Ct., Albany County 2002]; see also Matter of Local 100, Transportation Workers Union of America v New York State Pub. Empl. Relations Bd. , 28 PERB ¶ 7010 [Sup Ct, Albany County 1995]; see generally CPLR 7803 [3] ).
A court may vacate PERB's denial pursuant to CPLR article 78, however, there is no provision for a court to issue the injunction without PERB's determination (see Matter of New York State Supreme Court Officers Association v Lippman , 35 PERB ¶ 7009 [Sup Ct, Albany County 2002]; see also Public Sector Labor and Employment Law, Third Edition, 2014 Revision § 8.53). On the other hand, when PERB does make such a determination, the statute provides courts and PERB the same charge of determining if "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" (compare Civil Service Law § 209-a [4] [b], with Civil Service Law § 209-a [4] [d] ). This language must be interpreted with appropriate deference for areas of special expertise (see generally Matter of State of New York v. New York State Pub. Empl. Relations Bd. , 176 A.D.3d at 1463, 112 N.Y.S.3d 300 ).
In creating this process of obtaining injunctive relief, the Legislature established a different standard than that used in the CPLR (compare Civil Service Law § 209-a [4] [d], with CPLR 6301 ; see also Matter of New York State Pub. Empl. Relations Bd. v Town of Islip , 41 PERB ¶ 7005 [Sup Ct, Albany County 2008] [comparing the different standards]; see generally Sardino v. Scholet Family Trust , 192 A.D.3d 1433, 1434, 145 N.Y.S.3d 636 [3d Dept. 2021] ["The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of the equities in its favor"]). Notably, the Taylor Law contains a relatively low bar of "reasonable cause to believe," rather than consideration of likelihood of success on the merits. Further, the standard removes the balancing of equities. Critical to this analysis, the Taylor Law mirrors the irreparable injury language regularly used in the CPLR and common to case law, something the Legislature must be presumed to have done intentionally (see McKinney's Cons Laws of NY, Book 1, Statutes § 233 ["When terms of art ... are used, it is supposed that the Legislature had in view the subject matter about which such terms or phrases are commonly employed"], 236 ["Where the same word or group of words is used in ... different statutes, if the acts are similar in intent and character the same meaning may be attached to them"]). Therefore, the Taylor Law creates a two-prong test, including a relatively low standard of establishing a potential improper practice and a relatively high standard of establishing irreparable harm (see generally Public Sector Labor and Employment Law, Third Edition, 2014 Revision § 8.53 ["In contrast to the threshold ‘reasonable cause to believe an improper practice has occurred,’ which is a comparatively low standard, the standard for the necessary degree of harm is high"]). Markedly, PERB itself seeks deference only regarding the improper practice prong and suggested a lesser "respect standard" for their determination regarding irreparable harm.
"Ninety-two petitions for injunctive relief were filed in the first 22 months under the new law" with three cases being resolved and only five leading to a judicial order (Jerome Lefkowitz, Public Sector Labor and Employment Law, at 718 [2d ed 1998]). As of 2014, "[o]f the more than 350 applications for injunctive relief that PERB ha[d] received since 1995, only 12 (about 3.3%) resulted in a judicial order" (Public Sector Labor and Employment Law, Third Edition, 2014 Revision § 8.53).
Irreparable Harm
In light of PERB's disparate findings regarding irreparable harm, attention first to the second of the two prongs is most appropriate. Where there is insufficient evidence of "immediate and irreparable injury, loss, or damage," there is no "need to consider [if there is a] showing in regard to whether there is reasonable cause to believe an improper practice has occurred" (Matter of Teamsters Local 264, AFL-CIO, v County of Erie , 36 PERB ¶ 6510 [2003]). To the extent that the parties rely on the ruling relating to the Temporary Restraining Orders, it is well settled that "[t]he granting or refusal of a temporary injunction does not constitute the law of the case or an adjudication on the merits" ( Papa Gino's of Am. v. Plaza at Latham Assoc. , 135 A.D.2d 74, 77, 524 N.Y.S.2d 536 [3d Dept. 1988] ; cf. Huguenot LLC v. Megalith Capital Group Fund I, LP , 191 A.D.3d 530, 530, 138 N.Y.S.3d 337 [1st Dept. 2021] ).
Petitioners’ Arguments
Petitioners argue that the unilateral imposition of UCS's Mandatory Vaccination Program would force employees to introduce a vaccine into their bodies which necessarily involves a significant loss of privacy interests in employees’ bodily autonomy. CSEA submits the affidavit of its member and UCS's employee, Nicole Ventresca-Cohen, who swears that, "[t]he vaccine mandate will force [her] to choose between completing [her] career with [UCS] and being vaccinated." Ventresca-Cohen further swears that "[t]his vaccine mandate has caused [her] enormous stress. [Her] career is being threatened. [She] worried about the vaccine but also worried about losing [her] job." Finally, she asserts that the Mandatory Vaccination Program "violates [her] personal bodily autonomy."
As CSEA notes, Petitioners are not challenging the constitutionality of vaccine mandates but rather the ability of government under New York law, as an employer, to unilaterally issue such a mandate without prior bargaining [NYSCEF Doc. No. 46 (Noting that cases brought under a constitutional theory are "brought on an entirely different theory")]. Unquestionably, public employees do not surrender all of their constitutional rights by accepting their position (see Lane v. Franks , 573 U.S. 228, 134 S.Ct. 2369, 189 L.Ed.2d 312 [2014] ; O'Connor v. Ortega , 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 [1987] ; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 [1972] ; Tinker v. Des Moines Independent Community School Dist. , 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 [1969] ; Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois , 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 [1968] ). This Court is not being asked to consider whether Petitioners’ members are being forced to surrender a constitutionally-protected right (compare Garrity v. State of N.J., 385 U.S. 493, 496, 87 S.Ct. 616, 17 L.Ed.2d 562 [1967] ). Further, while policies that implicate religious rights have been held to potentially implicate irreparable harm, UCS's policy provides for religious and medical exemptions, thus such concerns are not at issue here (compare A. v. Hochul , ––– F.Supp.3d ––––, ––––, 2021 WL 4734404, *4 [N.D.N.Y. Oct. 12, 2021] ).
Local 2013 submits the affidavit of its President, Patrick Cullen, who swears that, pending a decision from PERB, Local 2013's "members are being placed in an untenable position being forced to choose between getting a vaccine against their will, in violation of their privacy and their individual rights to make their own medical treatment decisions, expose themselves to weekly, invasive and potentially costly testing, also in violation of their privacy and individual rights to make their own medical treatment, or risk losing their job. These options, once chosen, cannot be undone."
NYSCOA similarly asserts that its members will have to "involuntarily undergo an unwanted medical procedure." NYSCOA submits the affidavit of its President, Dennis Quirk, who swears that "NYSCOA will be irreparably harmed in its core mission and fundamental purpose to be able to zealously represent all NYSCOA members in all matters of mandatory bargaining, thereby eviscerating the trust of NYSCOA members." NYSCOA further submits the affidavit of Stephanie Peterson, a UCS employee and NYSCOA member, who swears that she is not vaccinated against COVID-19 and opposes the policy because she believes that it will cause her and others like her to be "injected with unwanted foreign substances." She further swears that "[t]his is especially concerning to [her] as an African American woman given that minorities and peoples of color have historically been the subjects of inhumane and barbaric medical atrocities all sanctioned and approved by the United States Government and the Center for Disease Control (CDC)." Finally, Peterson swears that "as a person who identifies as a female, [she] firmly believe that [her] decision not to take the Covid-19 vaccine at this time is a personal right that can be deemed ‘fundamental’ and as such are included in [her] Constitutional guarantee of personal privacy."
COBANC submits the affidavit of its President, Peter Piciulo, who swears that "numerous employees will be forced to get vaccinated against their will for fear of losing their livelihoods, pensions, and numerous other benefits of their employment with UCS." Piciulo further swears that "[a]t least twelve (12) COBANC members have currently been forced out of work since September 27, 2021, and thus are facing enormous pressure to get the vaccine." Piciulo also asserts that "some individuals who choose not to get the shot may retire or resign ... rather than adhere to the mandates will be irreparably harmed as their retirement could be reduced and certain benefits forfeited permanently."
The Association of Court Reporters submits the affidavit of its President and UCS's employee, Eric Allen, who swears that the policy "takes from [him] and the [Association of Court Reporters's] members, the personal choice as to whether to take the vaccine. [He], and [the Association of Court Reporters's] members, should not be faced with the compulsion of taking the vaccine or possibly either losing one's employment, or being subject to some adverse employment action." He further swears that "the testing and vaccination mandates require bargaining unit members to undergo involuntary and physically invasive medical procedures. These are mandates, if enforced, that cannot restore an employee to a position status quo ante. "
CSEA and other Petitioners urge this Court to adopt PERB's determination of a sufficient showing regarding irreparable harm. In its determination, PERB noted that UCS "does not argue that no irreparable harm would occur under these circumstances, but simply states, with no explanation, that the irreparable harm described by [CSEA] is conclusory and speculative." PERB stated that it could "direct [UCS] to prospectively cease and desist from implementing the new program and to negotiate the subject. Meanwhile, the bargaining unit members will be required to introduce a vaccine into their bodies." Based on CSEA's alleged harm and UCS's lack of explanation, PERB found that "[i]f a violation of [Civil Service Law] § 209-a (1) (d) is found, PERB will be unable to undo the significant loss of privacy interests suffered by [CSEA's] members, thereby rendering PERB's remedial order ineffectual." In each determination of a sufficient showing that was granted, PERB found similar harm; however, in the DC37 denial, despite analyzing the same policy, PERB found that DC37's characterization of the harm made it purely economic and reparable by its remedial powers.
PERB also notably asserted that the Legislature's enactment of Civil Service Law § 209-a [4] created a significantly different standard from those warranting injunctions under CPLR article 63; however, PERB specifically held that, as to irreparable harm, "the rationale [applied before the change in the statute] for the injunction analysis is applicable here." In contesting UCS's citations regarding irreparable harm, CSEA urges that "the Legislature has in [Civil Service Law] § 209-a (4) created a different, less exacting standard for obtaining an injunction in these types of cases," but contradictorily also adopts PERB's footnote that expressly states the analysis regarding irreparable harm has not changed. Seemingly acknowledging that the irreparable harm standard has not been changed by the Civil Service Law, CSEA further relies on a case applying the general injunction standard to argue that potential loss of insurance benefits could constitute an irreparable harm (see Bailey v. AK Steel Corp. , 1:06CV468, 2006 WL 2727732, *8 [S.D. Ohio Sept. 22, 2006] ). UCS's Argument
UCS argues none of their employees are being forced to get vaccinated, but rather employees who choose to be unvaccinated will be denied access to UCS's facilities, which ultimately could lead to disciplinary action that may include lost wages, lost benefits, suspension, or termination. Further, the policy includes religious and medical exemptions. UCS cites to numerous trial and appellate level cases from this State, as well as Federal cases from across the Nation, each affirming that the potential loss of one's employment does not rise to the level of irreparable harm necessary for an injunction. UCS also notes that even in cases of potential hardship, PERB itself has found that economic and speculative harms do not warrant injunctions because of PERB's authority to remedy economic harm (see Matter of Town of Cheektowaga Empl. Assn, 36 PERB ¶ 6503 [2003]; Matter of Kings Point Patrolmen's Benevolent Assn, Inc. , 35 PERB ¶ 6503 [2002]).
UCS submits the affirmation of its Chief of Administration, Justin Barry, who emphatically swears, "I want to be very clear about one aspect of the policy: no UCS employee is forced to get vaccinated. We do not order employees to take the vaccine, and we certainly do not do anything to impose on anyone's sense of bodily integrity." Additionally, UCS, through the affidavit of its Director of Human Resources and Deputy Director of Labor Relations, Carolyn J. Grimaldi, swears that "it is critically important to note that UCS's vaccination policy does not force any UCS employee to get vaccinated and certainly any employee that believes vaccination unduly imposes on their sense of bodily integrity may elect not to become vaccinated. Rather, the policy is very clear that employees who elect not to comply with the vaccination mandate — or do not otherwise have valid, approved medical or religious exemptions to vaccination — may be required to charge their own time, considered absent without authorization for which they may suffer a loss of pay, or, ultimately be subject to disciplinary action up to and including termination from employment." Likewise, Grimaldi swears that "[s]pecific consequences for non-compliance with the vaccine mandate have not been finalized and are among the issues to be addressed through collective bargaining over the impact of the mandate on the terms and conditions of employment of [Petitioners’] members."
Analysis
Where affected workers would be entitled to reinstatement and back pay if they ultimately prevailed, there is not irreparable harm (see Cohen v. Department of Social Servs. of State of N.Y. , 30 N.Y.2d 571, 572, 330 N.Y.S.2d 789, 281 N.E.2d 839 [1972] ; see generally Matter of Gamma v. Ferrara , 274 A.D.2d 479, 481, 711 N.Y.S.2d 462 [2d Dept. 2000] [Loss of disability benefits during the pendency of arbitration was not irreparable harm]). Similarly, controlling precedent from the Appellate Division, Third Department holds that "[l]oss of employment, although most likely to cause severe hardship, does not constitute irreparable damage" ( Matter of Armitage v. Carey , 49 A.D.2d 496, 498, 375 N.Y.S.2d 898 [3d Dept. 1975] ; accord Suffolk County Assn. of Mun. Empls. v. County of Suffolk , 163 A.D.2d 469, 471, 557 N.Y.S.2d 946 [2d Dept. 1990] ; cf. Matter of Hill v. Reynolds , 187 A.D.2d 299, 300, 589 N.Y.S.2d 461 [1st Dept. 1992] ). Likewise, the speculative loss of health insurance, while clearly a hardship, does not constitute an "irreparable injury" because a party "has an adequate remedy in the form of monetary damages" ( Mangovski v. DiMarco , 175 A.D.3d 947, 948, 107 N.Y.S.3d 235 [4th Dept. 2019] ). The possible loss of health benefits, without evidence that a party is "unable to obtain a comparable policy or that the interruption in coverage would impact an ongoing course of treatment" has also been found to constitute speculative harm ( id. at 949, 107 N.Y.S.3d 235 ; see Matter of Valentine v. Schembri , 212 A.D.2d 371, 372, 622 N.Y.S.2d 257 [1st Dept. 1995] ["Petitioner's allegation that a possible loss of health benefits constitutes a showing of irreparable harm is speculative and not supported by the record"]).
While the Legislature altered the injunctive relief standard when crafting the Taylor Law provision applicable here, they chose to leave intact the irreparable harm standard found elsewhere in law. That standard requires more than harm which is severe and which may even amount to a significant hardship. In cases regarding similar vaccine mandates, courts have repeatedly denied preliminary injunctions on the ground that loss of employment does not constitute irreparable harm (see The New York City Mun. Labor Comm. v. the City of New York, ––– A.D.3d ––––, ––––, 156 N.Y.S.3d 681 [Sup. Ct., New York County 2021, Love, J.] ; Norris v. Stanley , 2021 WL 4738827, *4 [W.D. Mich. Oct. 8, 2021] ; Valdez v. Grisham , 2021 WL 4145746, *12 [D.N.M. Sept 13, 2021] ; Norris v. Stanley , 2021 WL 3891615, *3 [W.D. Mich. Aug 31, 2021] ; Hencey v. United Airlines, Inc. , 2021 WL 3634630, *2 [S.D. Fla Aug 17, 2021] ). As another trial court persuasively wrote just a few weeks ago, "Threats to Plaintiffs’ ‘careers,’ ‘reputations,’ and the risk of ‘bankruptcy’ or ‘foreclosure’ are quintessentially compensable injuries. They are not irreparable" ( Harsman v. Cincinnati Children's Hosp. Med. Ctr. , 2021 WL 4504245, *4 [S.D. Ohio Sept. 30, 2021] ). Here, "no [Petitioner] is being imprisoned and vaccinated against his or her will ... Rather, these [Petitioners’ members] are choosing whether to comply with a condition of employment, or to deal with the potential consequences of that choice. Even if they believe the condition or the consequences are wrong, the law affords them an avenue of recourse—and that avenue is not injunctive relief on this record" ( Beckerich v. St. Elizabeth Med. Ctr. , 2021 WL 4398027, *7 [E.D. Ky. Sept. 24, 2021] ). This Court recognizes the significant harm attendant to the loss of one's employment, even if that loss is temporary. The choice between accepting a vaccination that one is strongly against on the one hand and the loss of employment on the other, may appear to be no choice at all. But in reality, it is just that. Nobody under the challenged policy will be forced to accept a vaccination against his or her will. Those who willingly choose not to accept the vaccine, unquestionably face a significant harm — the potential loss of employment — that can be remedied. For that reason, there is no irreparable harm and the law forecloses Petitioners’ request for injunctive relief.
While confident in its analysis, the Court is troubled that within the employment context, as some Petitioners argue, there is support in the scattered body of caselaw that the appropriate irreparable harm analysis must focus upon compliance with a challenged policy. If courts focus only upon non-compliance with an employer's challenged policy, the potential harm will always be termination and that in turn would render the statute meaningless since, as just explained, loss of employment does not amount to irreparable harm. That cannot be the case since the Legislature explicitly codified in law the process by which one may seek an injunction for an alleged Taylor Law violation. This Decision's holding would certainly be different if no circumstances addressing this concern could be identified. That is not the case.
During oral argument, even counsel for PERB acknowledged the difficulties presented by this case regarding the irreparable harm analysis since seemingly no body of case law exists articulating the proper method for reviewing the harm. Counsel further agreed that nothing in the legislative history supports the interpretation that the analysis by the court must focus on compliance with the policy, in contrast to other case law in existence at the time the statute was adopted.
Unlike termination, there are certain harms within the employment context that cannot be remedied with reinstatement and back pay and those cases confirm there are instances ripe for injunctions pending a PERB determination on the merits. For instance, where a public employer seeks to obtain information that could be used to undermine the bargaining process, the compliance of some members and non-compliance of others would threaten PERB's ability to remedy the improper practice, thereby necessitating an injunction (see Matter of New York State Pub. Empl. Relations Bd. v County of Monroe , 42 PERB ¶ 7007 [Sup Ct, Albany County 2009]). Likewise, the removal of an employee from a worksite during an election period would interfere with the ability of the union to properly function, and would create an immediate and irreparable injury, loss, or damage resulting from more limited access to facilities for purposes of campaigning than afforded other candidates for office (see Matter of Del Bene v County of Westchester , 37 PERB ¶ 6503 [2004]; see also Matter of Patrolmen's Benevolent Association v City of New York , 36 PERB ¶ 7503 [Sup Ct, Nassau County 2003, James, J.] [The court found irreparable harm where "respondent's expressed intent was to undercut petitioner's influence over the other officers in his command, which constitutes both an unlawful restraint on petitioner's union activities and improper domination or interference with the administration of the union"]). Irreparable harm also exists where employees would imminently, and not merely speculatively, lose access to vital, expensive prescription drugs or forego medical treatment (see Matter of New York State Pub. Empl. Relations Bd. v State of New York Governor's Office of Employee Relations , 29 PERB ¶ 7006 [Sup Ct, Albany County 1996]).
Several Petitioners argue that the unions themselves face irreparable harm in the form of lost confidence from their members. While impeding the ability of a union to function has certainly been held to constitute irreparable harm (see e.g. Matter of New York State Pub. Empl. Relations Bd. v City of Troy , 28 PERB ¶ 7002 [Sup Ct, Albany County 1995]), the harm cannot be merely frustration by members with the time a dispute may take to resolve as such harm could near universally be found, nor can it be conclusory allegations of lost confidence (see Matter of Armitage v. Carey , 49 A.D.2d at 498, 375 N.Y.S.2d 898 ; Matter of New York State Supreme Court Officers Association, Ila, Local 2013, AFL-CIO v State of New York, 36 PERB ¶ 6502 [2003]; Matter of New York State Supreme Court Officers Association v Lippman , 35 PERB ¶ 7009 [Sup Ct, Albany County 2002]). Likewise, to the extent SCCEA asserts that "UCS is unable to cite to a single case where the Supreme Court disagreed with PERB's determination and authorization to seek injunctive relief," courts have rejected PERB's determination when PERB's remedial powers were sufficient or the harm was speculative (see Matter of New York State Pub. Empl. Relations Bd. v Town of Orangetown, 38 PERB ¶ 7015 [Sup Ct, Albany County 2005]; Matter of New York State Pub. Empl. Relations Bd. v Town of Lewiston , 31 PERB ¶ 7005 [Sup Ct, Albany County 1998]; Matter of New York State Pub. Empl. Relations Bd. v Buffalo Water Board , 30 PERB ¶ 7005 [Sup Ct., Albany County 1997]).
I. PERB's denial of DC37's petition was not arbitrary or capricious, therefore, the Petition must be denied and dismissed.
DC37 argues that PERB's decision was a "violation of lawful procedure [and] arbitrary and capricious" and that PERB has "failed to perform a duty imposed upon them by law" because it denied DC37's petition but approved others seeking injunctive relief based on the "same facts and circumstances."
PERB moves to dismiss the Petition, arguing that it has consistently held that "the possible loss of wages for employees who refuse to comply with UCS’ directive" does not constitute irreparable harm. PERB asserts that other Petitioners alleged "that union members would be vaccinated as a result of the UCS’ policy, not just that they risk termination for non-compliance." PERB states that DC37's "recogni[tion] that [its] members face a choice" was insufficient as it did "not allege that members will be ‘unwillingly compelled’ or otherwise ‘required’ to vaccinate." PERB states that "[t]his is the key distinction between [DC37's] injunctive relief applications and those that were not denied by PERB. The allegations of irreparable harm in the injunctive relief applications granted by PERB went beyond discipline; [DC37's] did not." PERB further asserts that it cannot "import into one injunctive relief application arguments made in another, even when the applications seek to enjoin the same employer policy[, because] ..., to consider an argument not raised before PERB that the employer did not have an opportunity to respond to in the specific application before PERB would clearly be arbitrary and capricious." PERB also notes that, at the time, there were no court decisions regarding UCS’ Mandatory Vaccination Program for PERB to take into consideration.
Notably, PERB asserts that "allegations contained in a charge are subject to a liberal and reasonable construction" (Matter of Civil Serv. Empl. Assn., Local 1000, AFSCME, AFL-CIO, Monroe County Local 826, Monroe County Part-time Empl. Unit 7401 v County of Monroe , 43 PERB ¶ 3025 [2010]). Since the adoption of the Field Code in 1848, New York courts no longer apply form over substance (see generally CPLR 103 ; Arce v. Sybron Corp. , 82 A.D.2d 308, 315, 441 N.Y.S.2d 498 [2d Dept. 1981] [Noting that, with the adoption of the Field Code, New York ended the practice that an appropriate case would be dismissed for failure to be filed in the proper form of action]). In applying this standard, courts give plaintiffs and petitioners "the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. At the same time, however, allegations consisting of bare legal conclusions ... are not entitled to any such consideration. Dismissal ... is warranted if the plaintiff [or petitioner] fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141-142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 [2017] ). Thus, under that standard, the Court fails to see how identical factual allegations and a mere difference in the characterization of the nature of the subsequent injury should affect the agency's considerations.
The PERB determination under review was not made after a quasi-judicial evidentiary hearing, therefore, this Court "review[s] the determination under the standard set forth in CPLR 7803 (3), and consider[s] only whether the determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion" ( Matter of Halpert v. Shah , 107 A.D.3d 800, 801, 967 N.Y.S.2d 400 [2d Dept. 2013] [internal quotation marks and citations omitted], lv denied 22 N.Y.3d 860, 2014 WL 223720 [2014] ; see Matter of Nyack Nursing Home v. Dowling , 230 A.D.2d 42, 45, 656 N.Y.S.2d 440 [3d Dept. 1997] ). A rational basis exists where the determination is "[supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination" ( Ador Realty, LLC v. Division of Housing and Community Renewal , 25 A.D.3d 128, 139-140, 802 N.Y.S.2d 190 [2d Dept. 2005], quoting Pell v. Board of Educ. of Union School District No.1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 230-231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ). Although a reviewing court will not substitute its own judgment for that of the agency unless the agency's determination is arbitrary, capricious, or contrary to law (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County , 34 N.Y.2d 222, 230-231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ), "courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language" ( Andryeyeva v. New York Health Care, Inc. , 33 N.Y.3d 152, 174, 100 N.Y.S.3d 612, 124 N.E.3d 162 [2019] [internal quotation marks and citations omitted]).
As outlined in detail above, loss of wages and the potential loss of health insurance do not constitute irreparable harm, therefore, this Court finds that PERB was not arbitrary and capricious in making this finding. To the extent that DC37 also argues that PERB failed to perform a duty imposed by statute, a mandamus to compel is "available ‘only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law’ " ( Matter of Schmitt v. Skovira , 53 A.D.3d 918, 920, 862 N.Y.S.2d 167 [3d Dept. 2008], quoting New York Civ. Liberties Union v. State of New York , 4 N.Y.3d 175, 184, 791 N.Y.S.2d 507, 824 N.E.2d 947 [2005], see generally Siegel, NY Prac § 7801 at 1068 [6th ed 2018]). PERB's function in considering the merits of a petition to seek an injunction is clearly an exercise of discretion and mandamus to compel is inapplicable.
Finally, to the extent that DC37 seeks an injunction against UCS based on the argument that the implementation of the Mandatory Vaccination Program is itself arbitrary and capricious, the exclusive jurisdiction to obtain such relief in this context is through an application to PERB, which was denied, therefore, the petition fails to state a claim.
II. Petitioners have failed to demonstrate an irreparable harm.
Petitioners allege that their members will effectively be forced to be vaccinated. Petitioners speculate as to what form of disciplinary measures might be taken against their members, up to and including termination. UCS swears that no employees are being forced to vaccinate, but rather employees who choose to be unvaccinated will be denied access to UCS's facilities, which ultimately could lead to disciplinary action that may include lost wages, lost benefits, suspension, or termination. Further, UCS swears that "[s]pecific consequences for non-compliance with the vaccine mandate have not been finalized and are among the issues to be addressed through collective bargaining over the impact of the mandate on the terms and conditions of employment of [Petitioners’] members." As the only harm set forth on this record is disciplinary measures, up to and including termination, Petitioners have failed to establish an irreparable harm, therefore, the Petitions must be denied and dismissed.
The Court is cognizant of the potential hardship for employees who face discipline, including termination. Petitioners have argued that, if an injunction were issued, the administrative law judge is bound by the Taylor Law to issue a determination within 60 days of its imposition (see Civil Service Law § 209-a [4] [d] ). As other courts have noted, while the statute does not require the same expediency in the absence of an injunction, the record reflects "no reason why a determination could not be issued as quickly in the absence of a preliminary injunction" (Matter of Powers v Annucci , 50 PERB ¶7004 [Sup Ct, Albany County 2017, Hartman, J.]). It is this Court's hope that despite its inability to grant the requested injunctions, administrative determinations will arrive in as a timely a manner as they otherwise would had injunctions been granted.
Accordingly, the petitions are hereby denied and dismissed and all attendant temporary injunctions are hereby lifted.
SO ORDERED AND ADJUDGED