Civil Serv. Emps. Ass'n, Inc. v. N.Y.S. (Unified Court Sys.)

73 Misc.3d 874

157 N.Y.S.3d 675

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)

908328-21

Supreme Court, Albany County, New York.

Decided on October 15, 2021

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 PERB¹ 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:

"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,...