New York Law Review

Tag: Public Employment Relations Board

  • Matter of Town of Islip v. PERB, 25 N.Y.3d 491 (2015): Unilateral Discontinuation of Illegal Past Practice

    Matter of Town of Islip v. PERB, 25 N.Y.3d 491 (2015)

    A public employer is not required to collectively bargain to discontinue a past practice that is in direct violation of a duly enacted local law.

    Summary

    The New York Court of Appeals addressed whether a town was required to collectively bargain before discontinuing a practice that violated a local ethics law. Town employees had been permitted to use town vehicles for personal use, a practice inconsistent with the town’s Code of Ethics. The Public Employment Relations Board (PERB) found that discontinuing this practice without bargaining violated the Taylor Law. The Court of Appeals reversed, holding that a public employer is not obligated to bargain over the cessation of an illegal practice established in violation of local law.

    Facts

    The Town of Islip had a practice of allowing town employees to use town-owned vehicles for personal use, including commuting to and from home. This practice was in place despite the existence of Chapter 14 of the Town Code, specifically Section 14-12, which prohibited the use of town-owned vehicles for personal convenience except when such services are available to the public or are provided as municipal policy for official business. The Town unilaterally discontinued the practice, leading to a complaint filed by the union representing the employees.

    Procedural History

    The union filed an improper practice charge with PERB, alleging the Town violated the Taylor Law by unilaterally discontinuing a past practice. PERB sustained the charge, finding the Town failed to bargain over a mandatory subject of negotiation. The Appellate Division confirmed PERB’s determination. The Court of Appeals reversed, modifying the order and remitting to the Appellate Division with directions to remand to PERB for further proceedings.

    Issue(s)

    1. Whether a public employer must collectively bargain before discontinuing a past practice that is in violation of a duly-enacted local law.

    Holding

    1. No, because requiring an employer to bargain over the discontinuance of an illegal practice would undermine the local law and public policy.

    Court’s Reasoning

    The Court reasoned that PERB’s decision effectively required the Town to bargain its way out of an illegal activity. The Court found this contrary to law and public policy, stating that illegal past conduct should not evolve into binding terms and conditions of employment. The Court emphasized that allowing such a practice would permit PERB to overrule a duly-enacted local law, which is impermissible. The Court stated, “The issue distills to whether a public employer must collectively bargain its way out of a previous policy that is plainly in violation of a duly-enacted local law.” The Court further explained that where a past practice violates a local law, the employer has no duty to bargain its cessation. Requiring bargaining in such a scenario would place an undue burden on the employer and allow illegal practices to persist.

  • Chenango Forks Central School District v. New York State Public Employment Relations Board, 21 N.Y.3d 256 (2013): Enforceability of Past Practices Under the Taylor Law

    Chenango Forks Central School District v. New York State Public Employment Relations Board, 21 N.Y.3d 256 (2013)

    A long-standing practice, known to both the employer and employees, can constitute a binding past practice under New York’s Taylor Law, requiring the employer to bargain before discontinuing it, even if it’s not explicitly mentioned in the collective bargaining agreement.

    Summary

    Chenango Forks Central School District unilaterally terminated its practice of reimbursing Medicare Part B premiums to retirees. The Union filed an improper practice charge with PERB, arguing this violated the Taylor Law. An arbitrator found no contractual obligation for the reimbursement. PERB ultimately ruled that the reimbursement was a binding past practice, despite not being in the CBA, because it was unequivocal, uninterrupted, and created a reasonable expectation among employees. The Court of Appeals affirmed, holding that PERB reasonably determined the arbitrator’s decision wasn’t binding and substantial evidence supported PERB’s finding of a binding past practice.

    Facts

    The Chenango Forks Central School District reimbursed Medicare Part B premiums for retirees 65 or older. Initially, this was required by their health insurance plan. In 1988, they switched plans, and the subsequent CBA in 1990 didn’t mandate this reimbursement, but the District continued it. The 2001-2004 and 2004-2007 CBAs were also silent on this issue. In June 2003, the District announced termination of this reimbursement due to costs.

    Procedural History

    The Union filed a contract grievance and an improper practice charge with PERB. The ALJ initially dismissed the charge pending the grievance outcome. After an arbitrator found no contractual obligation, the Union reopened the PERB charge. The ALJ then found the District violated Civil Service Law § 209-a (1) by unilaterally discontinuing the benefit. PERB affirmed, finding a binding past practice. The Appellate Division confirmed PERB’s determination. The School District appealed to the Court of Appeals.

    Issue(s)

    1. Whether PERB should have deferred to the arbitrator’s finding that there was no past practice.

    2. Whether PERB’s decision that the Medicare Part B premium reimbursement constituted a binding past practice was supported by substantial evidence.

    3. Whether continued Medicare Part B premium reimbursement absent a contractual requirement constitutes an unconstitutional gift of public funds.

    Holding

    1. No, because the arbitrator’s findings relating to past practice fell outside the scope of his authority, and any determination by the arbitrator with respect to past practice under the Taylor Law was repugnant to that statute.

    2. Yes, because the School District’s knowledge of the payments was shown by managerial oversight, and the Union and bargaining unit employees’ knowledge was established by testimony given at the hearing.

    3. No, because the reimbursement of Medicare Part B premiums does not constitute an unconstitutional gift of public funds if the Union has a right under the Taylor Law to such reimbursement because it is a binding past practice.

    Court’s Reasoning

    The Court held that PERB’s decision was legally permissible, rational, and supported by substantial evidence. PERB did not need to defer to the arbitrator’s decision because the arbitrator’s authority was limited to contract interpretation, and any statements regarding past practice under the Taylor Law were dicta and potentially repugnant to the statute. The Court cited Matter of New York City Tr. Auth. (Bordansky) (4 PERB ¶ 3031 [1971]), which outlines when PERB should defer to arbitration. The Court reasoned that the arbitrator’s statement regarding the voluntariness of the District’s conduct did not align with the Taylor Law’s criteria for establishing a past practice. The court referenced Matter of County of Nassau (24 PERB ¶ 3029 [1991]), establishing the test for a binding past practice: “the practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected [bargaining] unit employees that the [practice] would continue.” The Court also dismissed the School District’s argument that the reimbursement was an unconstitutional gift of public funds, as the Taylor Law provides the statutory permission for such practices that constitute terms and conditions of employment.

  • Town of Southampton v. New York State Public Employment Relations Board, 2 N.Y.3d 513 (2004): Defining Status Quo After an Expired Arbitration Award

    2 N.Y.3d 513 (2004)

    When a collective bargaining agreement expires after binding arbitration, the terms of the arbitration award define the ‘status quo’ that the employer must maintain during negotiations for a new agreement.

    Summary

    This case addresses whether an expired interest arbitration award continues to define the status quo between a town and its police union during negotiations for a successor collective bargaining agreement. The Public Employment Relations Board (PERB) found that the Town of Southampton violated the Taylor Law by failing to calculate holiday pay according to an overtime provision in an expired arbitration award. The New York Court of Appeals affirmed, holding that PERB reasonably defined the status quo as encompassing the terms of the expired arbitration award, to the extent those terms superseded the prior collective bargaining agreement. This means employers must maintain conditions established by arbitration even after the award expires, pending a new agreement or further arbitration.

    Facts

    After the collective bargaining agreement between the Town of Southampton and its Police Benevolent Association (PBA) expired, an interest arbitration panel issued an award including a new overtime pay calculation. A dispute arose over the interpretation of the overtime provision, specifically regarding daily rates of pay. The PBA filed a grievance, which was ultimately decided in their favor. When the Town refused to apply the grievance award’s interpretation of the overtime provision after the interest arbitration award expired, the PBA filed an improper practice charge with PERB.

    Procedural History

    The PBA filed an improper practice charge with PERB, alleging the Town unilaterally changed the status quo. The Administrative Law Judge (ALJ) ruled in favor of the PBA, and PERB affirmed. The Town then initiated an Article 78 proceeding. The Appellate Division confirmed PERB’s determination. The Town appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether PERB has jurisdiction over a dispute arising after the expiration of both a collective bargaining agreement and an interest arbitration award, during negotiations for a successor agreement.
    2. Whether PERB properly defined the status quo to include the overtime provision in the expired interest arbitration award.

    Holding

    1. Yes, PERB has jurisdiction because the dispute concerns the Town’s conduct during negotiations for a successor agreement, not the enforcement of an existing agreement.
    2. Yes, PERB’s definition of the status quo is reasonable because it maintains the terms and conditions of employment established by the arbitration award until a new agreement is reached.

    Court’s Reasoning

    The Court of Appeals held that PERB’s definition of the status quo was reasonable and consistent with the principles of the Taylor Law. The court emphasized that PERB has special competence in administering the Taylor Law, and its interpretations are entitled to deference. The Court reasoned that the Triborough doctrine prohibits employers from unilaterally altering mandatory subjects of negotiation during negotiations. Here, the interest arbitration award effectively redefined the parties’ agreement on overtime pay, a mandatory subject of negotiation. The court cited Matter of Blooming Grove Police Benevolent Assn., stating that “the status quo after the expiration of an interest arbitration award is defined by reference to the terms of that award, and by the expired [collective bargaining agreement], to the extent that the terms of the [collective bargaining agreement] are not super-ceded by the award.” The court rejected the argument that this effectively extended the arbitration award, noting that the duty to negotiate remained. By maintaining the terms established in the arbitration award, PERB fostered the finality and harmony intended by the Taylor Law. As the court explained, PERB has “reasonably balanced the bargaining rights of the parties by requiring good faith negotiations consonant with the Taylor Law’s objectives.”

  • Patrolmen’s Benevolent Ass’n v. City of New York, 97 N.Y.2d 378 (2001): Constitutionality of Special Laws Under Home Rule Doctrine

    Patrolmen’s Benevolent Ass’n v. City of New York, 97 N.Y.2d 378 (2001)

    A special law that relates to the property, affairs, or government of a locality is constitutional if enacted upon a home rule message or if the provision bears a direct and reasonable relationship to a substantial state concern.

    Summary

    This case concerns a dispute between the Patrolmen’s Benevolent Association (PBA) and the City of New York regarding collective bargaining. The central issue is the constitutionality of Chapter 641 of the Laws of 1998, which amended the Taylor Law, giving the State Public Employment Relations Board (PERB) jurisdiction over impasse resolution for police and fire unions. The Court of Appeals held that Chapter 641 is a constitutional special law because it serves a substantial state concern related to public safety. Furthermore, PERB has jurisdiction over scope of bargaining issues when resolving impasses, but the City Board of Collective Bargaining (BCB) retains jurisdiction in other contexts.

    Facts

    The PBA and the City were in a collective bargaining dispute after their most recent agreement expired. The City filed a scope of bargaining petition with the BCB, arguing some of the PBA’s demands were not mandatory subjects of bargaining. The PBA argued the BCB lacked jurisdiction, asserting that PERB had final say. The PBA filed a declaration of impasse and a declaratory ruling petition with PERB. The City then filed an improper practice charge with BCB, alleging the PBA had not engaged in good faith bargaining. Both parties then filed declaratory judgment actions.

    Procedural History

    The actions were consolidated in Albany County Supreme Court, which granted the PBA’s motion, upholding the constitutionality of the statute. The Appellate Division affirmed, finding Chapter 641 a general law of statewide application. The City appealed to the Court of Appeals as of right on constitutional grounds, and the BCB appealed by leave granted.

    Issue(s)

    1. Is Chapter 641 a special law that violates the home rule provisions of the New York State Constitution?

    2. Which agency, PERB or BCB, has jurisdiction to determine the scope of mandatory collective bargaining in negotiations between the City and the PBA?

    Holding

    1. No, because Chapter 641, although a special law, serves a substantial state concern, and thus the home rule requirements were not implicated.

    2. PERB has jurisdiction over scope of bargaining issues between the PBA and the City only to the extent necessary for PERB to exercise its exclusive jurisdiction to resolve impasses. Until such time, BCB retains jurisdiction to determine scope of bargaining outside of the impasse context.

    Court’s Reasoning

    The Court reasoned that while Chapter 641 is a “special law” because it primarily affects New York City and a few surrounding counties, it addresses a substantial state concern: fostering orderly resolution of collective bargaining disputes involving police and fire units to enhance public safety. The Court relied on the stated purpose and legislative history of the act. “The substantial State concern supporting the enactment of chapter 641 is expressed in section 1 of the statute: it is to foster “orderly resolution of collective bargaining disputes involving police and fire bargaining units * * * to enhance public safety and prevent the loss or interruption of vital public services” (L 1998, ch 641, § 1).” Therefore, the home rule requirements were not triggered.

    Regarding jurisdiction, the Court held that PERB’s jurisdiction is limited to resolving impasses. To do so, PERB must determine what qualifies as a proper condition of employment. While the BCB also has the power and duty to determine whether a matter is within the scope of collective bargaining under New York City Collective Bargaining Law § 12-309, Chapter 641 did not divest BCB of all authority to determine scope of bargaining issues arising from collective negotiations between the City and police and fire unions. The Court noted the legislature did not amend Civil Service Law § 205 (5) (d), which authorizes BCB to exercise jurisdiction over improper practice charges, including a charge that a party is refusing to negotiate in good faith concerning terms and conditions of employment. The Court found that the legislature intended to equip PERB with all the powers it needs to resolve impasses but not to otherwise disturb BCB’s improper practice jurisdiction.

  • Matter of Susquehanna Valley Cent. School Dist. v. Susquehanna Valley Teachers’ Ass’n, 90 N.Y.2d 793 (1997): Enforceability of CBA Terms vs. PERB Jurisdiction

    Matter of Susquehanna Valley Cent. School Dist. v. Susquehanna Valley Teachers’ Ass’n, 90 N.Y.2d 793 (1997)

    When a public employer unilaterally changes a term of employment expressly covered by a collective bargaining agreement (CBA), the dispute is resolved through the CBA’s grievance procedures, not the Public Employment Relations Board (PERB).

    Summary

    The Susquehanna Valley Central School District reduced the work hours of its matrons, violating a CBA provision specifying an eight-hour workday. The matrons filed a grievance, which was denied. They then initiated an Article 78 proceeding, arguing the reduction was arbitrary. The School Board, for the first time on appeal, claimed the court lacked jurisdiction because the issue fell under PERB’s exclusive jurisdiction as a failure to negotiate in good faith under the Taylor Law. The Court of Appeals held that because the CBA expressly covered the working hours, the dispute was a breach of contract, not a failure to negotiate, and thus was properly resolved through the CBA’s grievance process, not PERB.

    Facts

    The Susquehanna Valley Central School District employed petitioners as school matrons. The school district reduced the matrons’ daily work schedule from eight to six hours. The collective bargaining agreement (CBA) specified that changes in working conditions must be negotiated and agreed upon in writing and that matrons would normally work an eight-hour day. The matrons filed a grievance claiming a breach of the CBA.

    Procedural History

    The matrons’ grievance was denied at all stages, including a hearing before the Board of Education. The matrons then filed a CPLR Article 78 proceeding challenging the Board of Education’s determination. Supreme Court ruled in favor of the matrons, ordering restoration of their full-time hours. The school board appealed, arguing that Supreme Court lacked subject matter jurisdiction, asserting the issue was within PERB’s exclusive jurisdiction. The Appellate Division agreed with the school board. The Court of Appeals reversed the Appellate Division’s decision, reinstating the Supreme Court’s judgment.

    Issue(s)

    Whether a public employer’s unilateral change in a term of employment expressly covered by a collective bargaining agreement (CBA) falls within the exclusive jurisdiction of the State Public Employment Relations Board (PERB), or whether it may be resolved through the grievance procedures of the CBA.

    Holding

    No, because when a collective bargaining agreement (CBA) already covers a specific term of employment, a dispute over that term is a breach of contract issue to be resolved through the CBA’s grievance procedures, not a failure to negotiate issue falling under the Public Employment Relations Board’s (PERB) jurisdiction.

    Court’s Reasoning

    The Court of Appeals reasoned that the Taylor Law does not override basic contract law. Once a CBA is in place, the statutory duty to bargain is exhausted for the terms expressly covered in the agreement. Citing Matter of City of Newburgh v Newman, the court distinguished between disputes arising from terms already agreed upon in the CBA (resolvable through grievance/arbitration) and disputes concerning new matters (requiring bargaining). The court also noted Civil Service Law § 205 (5) (d), which restricts PERB’s jurisdiction, stating that “the board shall not have authority to enforce an agreement between an employer and an employee organization and shall not exercise jurisdiction over an alleged violation of such an agreement that would not otherwise constitute an improper employer or employee organization practice.” The court emphasized that PERB itself has recognized that disputes over subjects settled by the CBA are outside its jurisdiction. The court reasoned that because the matrons’ work hours were covered by the CBA, the school district’s unilateral change was a breach of the CBA, not an improper practice of failure to bargain in good faith. The court concluded that the dispute centered on interpreting the CBA, specifically whether the eight-hour workday provision was an enforceable job security clause and whether management rights provisions justified the reduction in hours. These were contractual issues beyond PERB’s jurisdiction. The court stated, “In all respects, the rights asserted by the parties to this controversy are derived from exchanges of promises in the CBA.”

  • Newark Valley Cent. Sch. Dist. v. New York State Pub. Empl. Relations Bd., 83 N.Y.2d 315 (1994): Mandatory Collective Bargaining for School Bus Smoking Ban

    Newark Valley Cent. Sch. Dist. v. New York State Pub. Empl. Relations Bd., 83 N.Y.2d 315 (1994)

    A school district must collectively bargain with its employees regarding a ban on smoking in school buses when no students are present, as such a ban constitutes a term and condition of employment and is not preempted by statute or policy.

    Summary

    Newark Valley Central School District implemented a smoking ban on school buses, even when no students were present. The bus drivers’ union demanded negotiation, which the District denied. The union filed an improper practice charge. The Public Employment Relations Board (PERB) found the ban subject to negotiation, as neither the Education Law nor the Public Health Law mandated it. The Court of Appeals affirmed, holding that the smoking ban was a term of employment and not preempted by law or compelling public policy. The statutes cited by the District concerned student safety and secondhand smoke, neither of which applied when buses were empty.

    Facts

    In early 1990, Newark Valley Central School District adopted a smoking ban that included school buses, regardless of student presence.
    The union representing the bus drivers demanded negotiation over this policy.
    The School District refused to negotiate.
    The union filed an improper practice charge with the Public Employment Relations Board (PERB), alleging a violation of Civil Service Law.
    The District argued the policy was preempted by statute and an inherent management right.

    Procedural History

    The matter was referred to an Administrative Law Judge (ALJ), who ruled in favor of the union, finding no statutory preemption.
    PERB confirmed the ALJ’s determination, rejecting the District’s preemption argument.
    The District initiated a CPLR article 78 proceeding seeking to annul PERB’s decision.
    Supreme Court granted the petition, favoring the school district.
    The Appellate Division reversed, concluding that neither statute nor regulations prohibited collective bargaining. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a ban on smoking by school bus drivers when no students are on board is a mandatory subject of collective bargaining or is preempted by statute or public policy, allowing the school district to implement it unilaterally.

    Holding

    No, because the smoking ban affects a term and condition of employment, and is not mandated by any law or compelling public policy; therefore, the school district was obligated to negotiate the policy with the union. The Court affirmed the Appellate Division’s order.

    Court’s Reasoning

    The Court of Appeals acknowledged PERB’s expertise in Taylor Law matters but asserted its own role in statutory interpretation, specifically whether the smoking policy was preempted. “Preemption,” in the Taylor Law context, means that collective bargaining of terms and conditions of employment is prohibited because a plain and clear bar in statute or policy involving ” ‘an important constitutional or statutory duty or responsibility’ ” leaves an agency with no discretion as to how an issue may be resolved. The Court found no such preemption here.

    The Court examined Education Law § 3624 and its implementing regulation (8 NYCRR 156.3 [g] [5]), noting they address conduct impairing the safe operation of transportation facilities *while actually being used for the transport of* pupils.” The District cannot use this law to regulate conduct when buses are empty.

    The Court also considered Public Health Law article 13-E, concerning secondhand smoke. While this legislation addresses environmental hazards caused by secondhand smoke, it does not preclude negotiation over smoking on school buses without passengers. Crucially, Public Health Law § 1399-0 (6) (i) mandates that any smoking restrictions *above* the statutory minimum be subject to collective bargaining.

    Finally, the Court addressed the argument of compelling public policy. While secondhand smoke poses health hazards, the legislature had not deemed residual smoke in vehicles to warrant regulation. Therefore, no compelling public policy justified refusing to negotiate the smoking policy.

    Because the regulation of smoking affects a term or condition of employment, as determined by PERB, and because a rule affecting smoking on empty buses is not mandated by law or policy, the Court concluded that the school district’s unilateral action was improper.

  • Diaz v. Civil Service Employees Association, Inc., 75 N.Y.2d 798 (1990): Scope of PERB Review Limited to Original Charge

    Diaz v. Civil Service Employees Association, Inc., 75 N.Y.2d 798 (1990)

    The Public Employment Relations Board (PERB) review of an Administrative Law Judge’s (ALJ) decision is limited to matters included in the original charge or developed at the formal hearing, and any exception to the ALJ’s ruling not specifically raised is waived.

    Summary

    This case addresses the scope of review by the Public Employment Relations Board (PERB) of an Administrative Law Judge’s (ALJ) decision regarding an improper practice charge. Luis Diaz, a terminated employee, filed a charge against his union, CSEA. The ALJ dismissed the charges, but PERB reversed, finding CSEA grossly negligent in training and supporting its representatives, an issue not raised in the original charge. The Court of Appeals held that PERB’s review is limited to matters in the original charge or developed at the hearing, and issues not specifically raised are waived. Therefore, PERB’s decision based on inadequate training and support was improper.

    Facts

    Luis Diaz, an employee, was terminated after his union, CSEA, failed to timely file a grievance for arbitration on his behalf. The failure was due to mistakes and omissions by CSEA representatives. Diaz then filed an improper practice charge against CSEA with PERB.

    Procedural History

    The Administrative Law Judge (ALJ) framed the charges against CSEA, and after a hearing, dismissed them. PERB confirmed the dismissal but went further, finding CSEA grossly negligent in failing to adequately train or support its representatives, which constituted a breach of its duty of fair representation. This finding was based on issues not raised in the original charge. The Court of Appeals reviewed PERB’s decision.

    Issue(s)

    Whether PERB’s review of an ALJ’s decision is limited to matters included in the original charge or developed at the formal hearing.

    Holding

    Yes, because PERB’s review is limited to matters included in the original charge or developed at the formal hearing, and any exception to the ALJ’s ruling not specifically raised is waived.

    Court’s Reasoning

    The Court of Appeals reasoned that PERB’s power of review is circumscribed by the allegations made in the initial charge and the evidence presented during the formal hearing process. The court emphasized the importance of adhering to procedural rules designed to ensure fairness and adequate notice to the parties involved. The court stated that, “PERB’s review of the ALJ’s decision is limited to matters included in the original charge or developed at the formal hearing. Any exception to the ALJ’s ruling not specifically raised is waived”. The court cited Matter of Margolin v Newman, 130 AD2d 312, appeal dismissed 71 NY2d 844, and 4 NYCRR 204.10 [b] [4] in support of this principle. Because Diaz’s original charge did not include allegations of inadequate training or support, and he did not raise these issues in his exceptions to the ALJ’s order, PERB acted improperly in basing its decision on these grounds. This decision reinforces the importance of clearly articulating the basis of a complaint from the outset and preserving issues for appeal by specifically raising them in exceptions to an initial ruling. The court’s ruling ensures that administrative bodies like PERB remain within the bounds of the issues properly presented to them, safeguarding the rights of all parties involved.

  • Civil Service Employees Ass’n v. Public Employment Relations Board, 73 N.Y.2d 796 (1988): Scope of PERB Review

    73 N.Y.2d 796 (1988)

    The Public Employment Relations Board’s (PERB) review of an Administrative Law Judge’s (ALJ) decision is limited to matters included in the original charge or developed at the formal hearing; any exception to the ALJ’s ruling not specifically raised is waived.

    Summary

    This case addresses the permissible scope of review by the Public Employment Relations Board (PERB) of an Administrative Law Judge’s (ALJ) decision in an improper practice charge. Luis Diaz filed a charge against his union, CSEA, which was initially framed as gross negligence or bad faith in handling his grievance. After the ALJ dismissed the charges, PERB found CSEA liable for inadequate training and support, issues not raised in the original charge. The Court of Appeals held that PERB improperly based its decision on issues not included in Diaz’s original charge or exceptions to the ALJ’s order, limiting PERB’s review to matters properly raised and preserved.

    Facts

    Luis Diaz, an employee, was assisted by Vito Bertini, a CSEA grievance representative, in filing a grievance. Due to errors by Bertini and other CSEA representatives, the grievance was not timely filed and was dismissed. Diaz was subsequently terminated from his employment. Diaz then filed an improper practice charge against CSEA with PERB.

    Procedural History

    The ALJ framed Diaz’s charges as allegations of gross negligence, bad faith, and failure to seek court review. The ALJ dismissed all charges after a hearing. PERB confirmed the dismissal of the originally framed charges but found CSEA liable for the separate infraction of gross negligence in failing to adequately train Bertini, which was not included in the original charge. The Appellate Division reversed PERB’s decision. PERB appealed to the Court of Appeals.

    Issue(s)

    Whether PERB can base its decision on issues of inadequate training and support when those issues were not raised in the original charge filed by the employee or included in the employee’s exceptions to the ALJ’s order.

    Holding

    No, because PERB’s review of the ALJ’s decision is limited to matters included in the original charge or developed at the formal hearing. Any exception to the ALJ’s ruling not specifically raised is waived.

    Court’s Reasoning

    The Court of Appeals held that PERB’s review is limited to the scope of the charges presented by the complaining party. The Court emphasized that neither the amended details of the charge nor the ALJ’s statement of the charge included allegations of inadequate training or insufficient organizational support. Furthermore, Diaz’s attorney did not specify a charge of inadequate training or organizational support in his exceptions to the ALJ’s order, as required by PERB’s Rules of Procedure (4 NYCRR 204.10). The court cited Matter of Margolin v. Newman, 130 AD2d 312, for the proposition that any exception to the ALJ’s ruling not specifically raised is waived. The court stated: “PERB’s review of the ALJ’s decision is limited to matters included in the original charge or developed at the formal hearing. Any exception to the ALJ’s ruling not specifically raised is waived (see, Matter of Margolin v Newman, 130 AD2d 312, appeal dismissed 71 N.Y.2d 844; 4 NYCRR 204.10 [b] [4]). Therefore it was improper for PERB to base its decision on inadequate training and support when these issues were not raised in Diaz’s charges or included in his exceptions to the ALJ’s order.”

  • City of Newburgh v. Public Employment Relations Board, 63 N.Y.2d 793 (1984): Limits on Prohibition Against Administrative Agencies

    City of Newburgh v. Public Employment Relations Board, 63 N.Y.2d 793 (1984)

    Prohibition is an extraordinary remedy that will not lie against an administrative agency unless the agency has clearly usurped its power and no other adequate avenue of judicial review is available, or if the petitioner demonstrates irreparable harm.

    Summary

    The City of Newburgh sought to prohibit the Public Employment Relations Board (PERB) from ordering mediation during the term of a collective bargaining agreement. The New York Court of Appeals affirmed the dismissal of the prohibition proceeding, holding that PERB’s action did not constitute a clear usurpation of power, and the City had an adequate alternative avenue for judicial review. The Court emphasized that prohibition is an extraordinary remedy reserved for clear legal wrongs, and is inappropriate where other remedies exist absent a showing of irreparable injury.

    Facts

    The City of Newburgh and its employee union were parties to a collective bargaining agreement. During the life of the agreement, PERB ordered mediation. The City argued that PERB lacked the authority to order mediation during the term of the agreement, claiming it was a usurpation of power.

    Procedural History

    The City of Newburgh commenced a prohibition proceeding against PERB in the Appellate Division, seeking to prevent the mediation. The Appellate Division dismissed the proceeding. The City appealed to the New York Court of Appeals.

    Issue(s)

    Whether PERB’s order of mediation during the term of a collective bargaining agreement constituted a clear usurpation of power warranting the remedy of prohibition.

    Holding

    No, because PERB’s action was not a clear usurpation of power and the City had an adequate alternative avenue for judicial review.

    Court’s Reasoning

    The Court of Appeals held that prohibition is an extraordinary remedy available only to proscribe a clear legal wrong. The Court determined that PERB’s order of mediation did not constitute a clear usurpation of power. The court referenced subdivision 1 of section 209 of the Civil Service Law, stating that it relates the declaration of impasse “to the end of the fiscal year of the public employer” not to the contract year (see Matter of Burke v Bowen, 40 NY2d 264, 268). Even if PERB’s action were ultra vires, prohibition would not lie because the City had another avenue of judicial review available and failed to demonstrate irreparable injury if relegated to that other course. The Court highlighted that the City could raise its arguments against compulsory arbitration through the procedures outlined in 4 NYCRR 205.6. The Court also declined to convert the proceeding to an action for declaratory judgment, citing the availability of other adequate remedies. The court effectively stated, “Just as mandamus will lie only to enforce a clear legal right, prohibition may be availed of only to proscribe a clear legal wrong.” The availability of alternative remedies and lack of irreparable harm were key factors in the court’s decision.

  • Matter of State (SUNY) v. Public Employment Relations Board, 56 N.Y.2d 339 (1982): Union’s Waiver of Right to Negotiate

    Matter of State (SUNY) v. Public Employment Relations Board, 56 N.Y.2d 339 (1982)

    A union may waive its right to negotiate a mandatory subject of bargaining if it knowingly fails to request negotiations on that subject during contract negotiations.

    Summary

    This case concerns whether the Civil Service Employees Association (CSEA) waived its right to challenge the State University of New York’s (SUNY) “directed absence” policy by failing to demand negotiation on the issue during contract negotiations. The Court of Appeals affirmed the Appellate Division’s decision, finding that the Public Employment Relations Board’s (PERB) determination that CSEA had not waived its right to negotiate the 1977 and 1978 SUNY directives was irrational and unsupported by evidence. The court emphasized that CSEA knew of the policy and its continued enforcement but did not raise it during bargaining.

    Facts

    SUNY issued directives in 1977 and 1978 concerning a “directed absence” policy. CSEA was aware of these directives and that SUNY intended to continue enforcing the policy. In 1976, CSEA unsuccessfully attempted to negotiate an end to SUNY’s “directed absence” policy contained in its 1976 directive. Despite this knowledge, CSEA did not request that the “directed absence” policy be placed on the negotiating table in 1977 or 1978.

    Procedural History

    PERB initially determined that CSEA had waived its right to challenge the 1977 and 1978 SUNY directives. The Appellate Division reversed PERB’s determination. The Court of Appeals affirmed the Appellate Division’s decision, agreeing that PERB’s determination was irrational and unsupported by the evidence.

    Issue(s)

    Whether PERB’s determination that CSEA did not waive its right to challenge the 1977 and 1978 SUNY directives regarding the “directed absence” policy was rational and supported by substantial evidence, given CSEA’s awareness of the policy and failure to request negotiations on the issue.

    Holding

    No, because CSEA knew of the “directed absence” policy and its continued enforcement but failed to request that the issue be put on the bargaining table during the 1977 and 1978 negotiations. Thus PERB’s determination was irrational and unsupported by the evidence.

    Court’s Reasoning

    The court reasoned that CSEA was well aware of the “directed absence” policy outlined in the 1977 and 1978 SUNY directives and knew that SUNY intended to continue enforcing it. Despite this knowledge, CSEA did not attempt to negotiate the policy during the 1977 and 1978 contract negotiations. The court found PERB’s determination that CSEA had not waived its right to negotiate the issue to be irrational in light of these facts. The court emphasized that unions have a responsibility to bring up mandatory subjects of bargaining during negotiations if they wish to preserve their right to negotiate those issues. By failing to do so, they may be deemed to have waived that right. Dissenting, Judge Jasen argued that the scope of the court’s review of PERB’s interpretation is limited. He stated that unless the Board’s determination was affected by an error of law, arbitrary and capricious, or not supported by substantial evidence, the court should not interfere. Quoting Matter of West Ironde quoit Teachers Assn. v Helsby, 35 NY2d 46, 50, the dissent emphasized, “As the agency charged with implementing the fundamental policies of the Taylor Law, [PERB] is presumed to have developed an expertise and judgment that requires us to accept its construction if not unreasonable”.