Union decertification rights could expand following judge’s finding

Members of public sector unions in New York City could soon have the right to decertify their unions expanded following a State Supreme Court ruling last month in a case involving the state agency tasked with administering labor law in the public sector and its city counterpart.  

The state Public Employee Review Board has been pushing since 2023 for the city’s Office of Collective Bargaining to change a 1960s-era “contract bar rule” that dictates when union members can decertify their unions to get it in line with PERB’s. In a legal petition, the board asked a judge to force OCB to change the rule. PERB is empowered under the Public Employees' Fair Employment Act — commonly known as the Taylor Law — to dictate labor regulations in the public sector both on the statewide and local level. 

OCB sought to dismiss the legal action, but Manhattan Supreme Court Judge Shahabuddeen A. Ally ruled against the city agency Jan. 22, finding that PERB has a right to demand changes within what are commonly referred to “mini-PERBs,” such as OCB, if the regulations that those smaller agencies employ are not “substantially equivalent” to PERB’s. The judge also noted that the two agencies' rules around decertification are clearly at odds. 

Under OCB’s rules, members of public-sector unions can only file to decertify their unions in the 30 days before a contract expires and not at any point after a contract’s expiration. PERB’s rules, in turn, state nearly the opposite, allowing workers to file for decertification up to 120 days after their contract expires but not before.  

OCB’s decertification rule made it difficult for police officers with the Department of Environmental Protection to break away from their former union, the Law Enforcement Employees Benevolent Association. Union members started pushing to decertify in 2019 but had two of their decertification petitions rejected by OCB in 2020 and 2022 because they were ruled to be untimely.  

The officers were eventually able to split from LEEBA and win their own union, the Environmental Police Benevolent Association, in 2024 after getting the go-ahead from OCB. But before that, PERB officials investigated the officers’ case and asked OCB to change its rule in May 2023. After OCB refused, PERB filed for a judicial order that November.  

‘Enormous’ implications

As of now, both agencies' rules are still on the books following the January ruling, which largely focused on procedural matters. The case will likely be heard by another judge who could order OCB to change its rule.

William Herbert, a lecturer and faculty associate at the Roosevelt House Public Policy Institute at Hunter College, said that the implications for PERB’s lawsuit are “enormous.” 

“For almost 60 years, OCB has been permitted to function independently and apply its own rules that diverge from the Taylor Law,” he said in an email. “An ultimate ruling on the merits in favor of PERB's administrative actions and lawsuit in this case could open the door for an avalanche of future cases filed at PERB challenging the many ways OCB's law and rules diverge from the Taylor Law.” 

The rule change request was the first that PERB has made of OCB in 56 years. Herbert added that the resulting dispute could “tie up both agencies in a costly internecine struggle for years to come” 

A spokesperson for PERB did not reply to a request for comment. Steven Star, OCB’s deputy chair and general counsel, said in a statement that the agency has reviewed the decision and is considering its options. 

Arthur Schwartz, a longtime labor lawyer, said after reading the January ruling that he expects the courts to eventually side with PERB and force OCB to change its rule.  

"This ruling means that somewhere down the line a judge is going to tell OCB that its [rule] is unlawful,” he said. "It's just a matter of when the order is going to be." 

That ruling would leave city unions, many of whom don’t agree to contract agreements for months or years after their previous contracts expire, vulnerable to decertification petitions.  

A final ruling in favor of PERB “will open up the door to some efforts by some workers either to decertify or create their own unions,” Schwartz said.  

That threat is likely why several unions representing workers in the city, the Municipal Labor Committee and the city’s Office of Labor Relations all supported OCB’s arguments and asked for the suit to be dismissed.  

dfreeman@thechiefleader.com