On September 3, 2021, petitioner Civil Service Employees Association Inc., Local 1000, AFSCME, AFL — CIO (hereinafter CSEA), the bargaining unit for certain non-judicial employees of respondent New York State Unified Court System (hereinafter UCS), filed an improper practice charge against UCS alleging that its unilateral implementation of a mandatory COVID-19 vaccination requirement without proper negotiation with CSEA violated its collective bargaining obligations under Civil Service Law §209-a (1) (d). Given the impending September 27, 2021 effective date of the mandatory vaccination requirement, CSEA sought injunctive relief from the New York State Public Employment Board (hereinafter PERB) pending a decision on the improper practice charge. In a determination dated September 13, 2021, PERB found reasonable cause to believe that UCS’s unilateral implementation of the mandatory vaccination requirement was an improper practice and that immediate and irreparable injury would occur absent an injunction. Accordingly, PERB authorized CSEA to commence the instant proceeding pursuant to Civil Service Law §209-a (4) for injunctive relief enjoining and restraining UCS from implementing the mandatory vaccination requirement until PERB is able to issue a decision on the merits of the underlying improper practice charge. The matter is presently before the Court as Acting Part 1 Justice for consideration of CSEA’s application for temporary injunctive relief enjoining USC from implementing the mandatory vaccination requirement — which is scheduled to commence on September 27, 2021 — pending the outcome of the underlying improper practice charge filed with PERB. The Court conducted oral argument on the request for temporary injunctive relief with counsel for all parties via Teams on September 23, 2021, and the matter is now ripe for determination. Pursuant to Civil Service Law §209 — a (4), a party may file an improper employer practice charge to petition the Court for injunctive relief where PERB finds “that (i) there is reasonable cause to believe an improper practice has occurred, and (ii) where it appears tha 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”. When such a petition is filed, Civil Service Law §209-a (4) (d) permits the Court to grant the necessary injunctive relief pending the determination of the underlying improper practice charge upon a finding “that 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.” Civil Service Law §209-a (4) (d) further provides that “[s]uch relief shall expire on decision by an administrative law judge finding no improper practice to have occurred, successful appeal or motion by respondent to vacate or modify pursuant to the provisions of the civil practice law and rules, or subsequent finding by the board that no improper practice had occurred.” Here, the mandatory vaccination requirement that forms the basis of CSEA’s improper practice charge against UCS was first enunciated in an emailed directive of Chief Administrative Judge Lawrence Marks, dated August 25, 2021, advising that UCS was implementing a mandatory COVID-19 vaccination requirement for all non-judicial employees that would take effect on September 27, 2021, with full details to follow in a forthcoming announcement. Those specific details were later set forth in a Memorandum entitled “Mandatory Vaccination Requirement”, which was disseminated via email to all nonjudicial personnel on September 10, 2021. The Memorandum, which was jointly authored by UCS’s Chief of Operations, Nancy J. Barry, and Chief of Administration, Justin A. Barry, directs in relevant part as follows: 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. To this end, no later than September 27, 2021, all-non-judicial personnel must either submit proof that they: (1) are fully vaccinated; or (2) have received at least one dose of any COVID19 vaccine. The Memorandum proceeds to outline acceptable forms of proof of vaccination, the procedures for submitting such proof, the requirement that partially vaccinated employees submit to regular mandatory COVID-19 testing until fully vaccinated, and the manner in which an employee may seek a medical or religious exemption to the mandatory COVID-19 vaccination requirement. The Memorandum further delineates the consequences to be imposed upon employees who fail to comply with the mandatory vaccination requirement as follows: Non-Compliance 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. CSEA contends that the mandatary vaccination requirement constitutes a new work rule which changes the terms and conditions of employment, and that therefore UCS’s unilateral promulgation and implementation of the mandatary vaccination requirement without prior negotiation constitutes an improper practice in violation of Civil Service Law §209-a.1 (d). Under the Taylor Law (Civil Service Law §200 et seq.), a public employer is obligated to negotiate in good faith with the bargaining representative of its current employees regarding “terms and conditions of employment” (Civil Service Law §204 [2]), and the failure to do so constitutes an improper employment practice (see, Civil Service Law §209 — a [1] [d]). Thus, an employer is prohibited from unilaterally imposing a work rule affecting the “terms and conditions of employment” absent a clear legislative intent permitting the unilateral change without prior negotiation (see, Matter of City of Schenectady v. New York State Pub. Empl. Relations Bd., 85 NY2d 480, 486 [1995]). Whether a particular issue is a new work rule affecting the “terms and conditions of employment”, and is thus a mandatory subject of negotiation, is a matter within PERB’s primary jurisdiction to determine (see, Matter of Town of Carmel Police Benev. Ass’n v. Public Empl. Rels. Bd. of the State of NY, 267 AD2d 858, 859 [1999]). However, work rules involving the possibility of discipline or termination have been found to affect the terms and conditions of employment (see, Matter of Levitt v. Board of Collective Bargaining of City of NY, 79 NY2d 120 [1992]). Upon a full review of the record and consideration of the contentions advanced by the parties during oral argument, the Court concludes that there is reasonable cause to believe that UCS’s unilateral imposition of the mandatory vaccination requirement is an improper practice that violates Civil Service Law §209-a (1) (d). The mandatory vaccination requirement potentially implicates a variety of terms and conditions of employment requiring mandatory negotiation, including but not necessarily limited to possible discipline and termination for noncompliance (see, Town of Carmel Police Benev. Ass’n Inc. v. Pub. Emp. Rels. Bd. of State of NY, 267 AD2d at 859 [1999]). While the requirement for mandatory bargaining may be circumvented where a clear legislative intent grants the employer authority to impose the unilateral change in question (see, Matter of City of Schenectady v. New York State Pub. Empl. Relations Bd., 85 NY2d at 486 [1995]), UCS has failed to identify any statute which specifically permits the imposition of a mandatory COVID-19 vaccination requirement without prior negotiation. Moreover, UCS has failed to produce any Executive Order or administrative regulation which would authorize the mandatory vaccination requirement it seeks to impose. To the extent that UCS argues that its authority to unilaterally impose a mandatory vaccine requirement upon its employees is derived from Judiciary Law §211, the Court is not persuaded. Although that statute permits the Chief Judge to establish administrative policies for general application to UCS personnel, Judiciary Law §211 (1) (d) expressly requires that such standards “be consistent with the civil service law” — which as previously noted requires UCS to negotiate in good faith with the bargaining representative of its current employees regarding “terms and conditions of employment” (Civil Service Law §204 [2] ). Moreover, to the extent that UCS relies upon a recent decision of the Honorable Lawrence L. Love in New York City Municipal Labor Committee v. The City of New York (Supreme Court, New York County, Sept. 22, 2021) lifting a temporary injunction relating to mandatory vaccinations, that case is distinguishable because, unlike this case, authority for the mandatory vaccination order therein was premised upon an emergency Executive Order and various administrative regulations authorizing the adoption of vaccination measures to control the spread of COVID-19. Similarly, this case is distinguishable from Matter of Serafin v. New York State Department of Health (Index No. 908296-211) inasmuch as the mandatory vaccination requirement in that case was premised upon statutory and regulatory authority. Next, the Court also determines that UCS’s imposition of the mandatory vaccination requirement on September 27, 2021, before receiving PERB’s decision on the improper practice charge, will result in immediate and irreparable injury to UCS employees and CSEA. Indeed, if PERB ultimately deems UCS’s mandatory vaccination requirement improper, CSEA-represented employees who unwillingly complied with the directive will have no recourse because they will suffer a harm that is not compensable by money damages. In addition, CSEA will suffer irreparable harm to its fundamental purpose and diminish the trust of those it represents if UCS is allowed to even temporarily circumvent the collective bargaining requirements required by the Civil Service Law while the underlying improper practice charge is pending before PERB. In view of the Court’s finding that there is reasonable cause to believe an improper practice has occurred and that irreparable injury will result unless the status quo is maintained, CSEA’s application for temporary injunctive relief is hereby granted. For the foregoing reasons, it is hereby ORDERED that respondent New York State Unified Court System is hereby enjoined and restrained from applying the mandatory vaccination requirement, scheduled to commence on September 27, 2021, to non-judicial employees represented by CSEA, and it is further ORDERED that the Administrative Law Judge in the underlying improper practice proceeding is directed to issue a decision on the merits of the charge within 60 days of this decision. This constitutes the Decision of the Court, the original of which is being transmitted to the Albany County Clerk for electronic filing and entry. Upon such entry, counsel for petitioner shall promptly serve notice of entry on all other parties (see, Uniform Rules for Trial Courts [22 NYCRR §202.5-b [h] [1], [2]). Dated: September 24, 2021
