When Can Unions Intervene In Federal Litigation That Could Impact Bargaining Rights

This article appears in the June 2021 issue of our monthly newsletter, Public Safety Labor News.


Six civil rights actions were filed between October 2020 and March 2021 against the NYPD, the City of New York, and multiple individual NYPD officers. The lawsuits alleged that defendants engaged in – and continue to engage in – un­constitutional conduct in response to demonstrations throughout New York City. The lawsuits sought money damages and changes in the City’s policies with respect to demonstrations. One of the lawsuits, which sought policy changes, was filed by the Attorney General of the State of New York; the others, which sought money damages only, were filed by participants in the demonstrations.

Three of the City’s uniformed bargaining organizations – the Sergeant’s Benevolent Association (SBA), the Police Benevolent Association (PBA), and the Detectives’ En­dowment Association (DEA) – sought to intervene in the lawsuit filed by the Attorney General. The unions raised a variety of reasons they should be allowed to intervene.

The SBA wished to intervene to “defend against potential remedies that will impair police officer safety and the ability of officers to fulfill their duty to protect the public,” to “defend against court findings and orders on the particular allegations,” and “to defend against potential remedies that can infringe on collective bargaining rights.” The DEA asserted interests in the integrity of “statutorily created collective bargaining rights,” “the terms and conditions contained in its collective bargaining agreement,” and “the health and safety of DEA members.” The PBA asserted interests in officers’ “personal safety, their collective bargaining and other statutory rights,” as well as “their reputations and other interests that stand to be affected.”

The federal court judge presiding over the case essentially told the unions “too soon.” The Court found that “the unions principally assert that this litigation could affect their collective bargaining rights, as any injunctive remedy might result in changes to NYPD policies that could affect the hours, wages, and/or working conditions of NYPD officers. They claim that the City defendants cannot adequately protect the collective bargaining interests of union members, because employers are inherently conflicted when negotiating changes that could affect employee working conditions.

“But whatever interest the unions have in their collective bargaining rights are too remote from the merits of this litigation to be considered direct or substantial. Whether police officers engaged in unconstitutional policing during the BLM protests, and if so whether they were following City policy, has nothing to do with the collective bar­gaining agreements between the unions and the City. The City has not yet proposed any specific changes to NYPD policy as a result of this litigation, and any changes to NYPD policy that may materialize as a result of this lawsuit might not impact any collective bargaining rights at all.

“Not all consent decrees that alter NYPD policy implicate a police union’s collective bargaining rights. The key determination is whether the agreement actually prevents the unions from collec­tively bargaining or affects changes that have a ‘practical impact’ on ‘questions of workload, staffing and employee safety’ that are within the scope of the unions’ collective bargaining rights. Such a deter­mination cannot be made in the absence of a proposed injunction or agreement. None exists.

“If these lawsuits do ultimately result in concrete proposed changes to NYPD policy, then and only then might the unions have an interest in the subject mat­ter of the litigation. Whether their interests were impacted would depend on the terms of the proposed settlement or injunctive relief. The injunction-seeking plaintiffs are seeking only to change unconstitutional NYPD policies – which is to say, policies that are by their very nature unlawful. For example, the State’s amended complaint in People focuses only on the ‘policies or practices of employing excessive force and false arrests, suppressing free expression and press reporting, and retaliating against New York Residents who participated in the 2020 Racial Justice Protests.’ These allegations make clear that whatever injunctive relief might ultimately be crafted will target only ‘unconstitutional policies or practices.’ At this early stage of the litigation, the primary question (the ‘subject’ of the action) is whether certain NYPD policies are, in fact, unconstitu­tional – an issue that has nothing to do with the unions’ collective bargaining rights. Indeed, it goes without saying that the unions and the officers they represent have no protectable interest in violating other individuals’ constitutional rights.

“Even if the unions were allowed to intervene, they would have little ability to prevent the City from settling any of the cases if it wanted to. The Supreme Court has held that ‘it has never been supposed that one party – whether an original party, a party that was joined later, or an intervenor – could preclude other parties from settling their own disputes and there­by withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent.’

“Thus, the unions could only offer their objections to the Court regarding any potential settlement, but they would not be able to preclude other parties from entering into that settlement if it does not infringe on any collective bargaining rights. The unions can raise any concerns that it has at the time a settlement is proposed, or at the time the Court is considering an injunctive remedy. But since no settlement has yet materialized, and – as at least one union concedes – one may never materi­alize, any interest that the unions have in protecting its collective bargaining rights are currently too remote to be considered cognizable.”

In Re: New York City Policing During Summer 2020 Demonstrations, 2021 WL 1666860 (S.D.N.Y. 2021).


Also in the June 2021 issue:

  • Court Changes ‘Public Policy’ Doctrine To Overturn Arbitrator’s Opinion
  • Florida Statute Shields Officers’ Names From Disclosure After Officer Involved Shooting
  • Prosecutor Cannot Be Sued For Stating At Roll Call That Sergeant Was A Thief And A Liar
  • Civil Service Orders Reinstatement Of Officer Who Shot Rayshard Brooks
  • Firefighter Loses Gradual Hearing Loss Claim
  • Chief Not Entitled To Pension Credit For Severance Pay
  • Memo About Moldy Police Station Not Constitutionally Protected
  • Senator Allowed To Attend Firefighter’s Workers’ Comp Hearing
  • ‘Two-Female’ Policy Upheld