Buffalo United Charter Sch. v. N.Y. State Pub. Emp't Relations Bd.

• Decision Date: 07 June 2013
• Citation: 965 N.Y.S.2d 905,107 A.D.3d 1437,2013 N.Y. Slip Op. 04163
• Parties: BUFFALO UNITED CHARTER SCHOOL, Brooklyn Excelsior Charter School and National Heritage Academies, Inc., Petitioners–Appellants–Respondents, v. NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, Council of School Supervisors and Administrators, Local 1, AFSA, Respondents–Respondents–Appellants, and Buffalo United Charter School Education Association, NYSUT/AFT, AFL–CIO New York, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1437

965 N.Y.S.2d 905

2013 N.Y. Slip Op. 04163

BUFFALO UNITED CHARTER SCHOOL, Brooklyn Excelsior Charter School and National Heritage Academies, Inc., Petitioners–Appellants–Respondents,

v.NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, Council of School Supervisors and Administrators, Local 1, AFSA, Respondents–Respondents–Appellants,andBuffalo United Charter School Education Association, NYSUT/AFT, AFL–CIO New York, Respondent–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

June 7, 2013.

Appeal and cross appeals from a judgment (denominated order and judgment) of the Supreme Court, Erie County (John M. Curran, J.), entered July 11, 2012 in a proceeding pursuant to CPLR article 78. The judgment denied the petition in part.

Hiscock & Barclay, LLP, Buffalo (Laurence B. Oppenheimer of Counsel), and Whiteman Osterman & Hanna LLP, Albany, for Petitioners–Appellants–Respondents.

David P. Quinn, Albany, for Respondent–Respondent–Appellant New York State Public Employment Relations Board.

David N. Grandwetter, New York City, for Respondent–Respondent–Appellant Council of School Supervisors and Administrators, Local 1, AFSA.

Richard E. Casagrande, Latham (Jennifer N. Coffey of Counsel), for Respondent–Respondent.

David J. Strom, General Counsel, Washington, D.C., of the Washington, D.C. Bar, Admitted Pro Hac Vice, for American Federation of Teachers, AFL–CIO, and Philip A. Hostak, for National Education Association, Amici Curiae.

MEMORANDUM:

In this proceeding pursuant to CPLR article 78, petitioners appeal, and respondents New York State Public Employment Relations Board (PERB) and Council of School Supervisors and Administrators, Local 1, AFSA, cross-appeal from a judgment determining, inter alia, that PERB properly exercised jurisdiction over two collective bargaining matters. We agree with petitioners, however, that Supreme Court erred in determining that PERB properly exercised jurisdiction over those matters. Inasmuch as the two collective bargaining matters “arguably” fall within the scope of the National Labor Relations Act (NLRA) ( San Diego Bldg. Trades Council, Millmen's Local Union 2020 v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775;see e.g.Chicago Mathematics & Science Academy Charter School, Inc., 359 NLRB 41;Charter School Admin. Servs., 353 NLRB 394), the National Labor Relations Board (NLRB) has primary jurisdiction “to determine in the first instance” whether its jurisdiction preempts PERB's jurisdiction ( Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 748, 105 S.Ct. 2380, 85...