City of Albany v. Public Employment Relations Bd., AFL-CIO

• Decision Date: 26 May 1977
• Docket Number: AFL-CIO
• Citation: 57 A.D.2d 374,395 N.Y.S.2d 502
• Parties: , 96 L.R.R.M. (BNA) 2500 In the Matter of CITY OF ALBANY et al., Petitioners, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, and Council 66, American Federation of State, County and Municipal Employees,, et al., Intervenors-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 502

395 N.Y.S.2d 502

57 A.D.2d 374, 96 L.R.R.M. (BNA) 2500

In the Matter of CITY OF ALBANY et al., Petitioners, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent and Council 66, American Federation of State, County and Municipal Employees, AFL-CIO, et al Intervenors-Respondents.

Supreme Court, Appellate Division, Third Department.

May 26, 1977.

John E. Roe, Corp. Counsel, Albany (Vincent J. McArdle, Jr., Albany, of counsel), for petitioners.

Martin L. Barr, Albany (Anthony Cagliostro, Albany, of counsel), for respondent.

Blitman & King, Syracuse (Jules L. Smith, Syracuse, of counsel), for intervenors-respondents.

Before KOREMAN, P. J., and MAHONEY, MAIN, LARKIN and HERLIHY, JJ.

OPINION FOR CONFIRMANCE

MAIN, Justice.

Intervenor-respondent, George Strokes, was employed as an equipment operator for the City of Albany's Department of Public Works when, on August 22, 1975, he was discharged from his employment by Public Works Commissioner Harry Maikels following a disciplinary proceeding held pursuant to section 75 of the Civil Service Law and a finding of misconduct. The proceeding grew out of charges that Strokes had recklessly operated a crane with resulting purported injuries to a fellow employee. It should be noted that this discharge was challenged by Strokes in a collateral article 78 proceeding which is still pending, but will likely become moot for the reason that Strokes has subsequently obtained the identical relief sought therein in the Public Employment Relations Board's (hereinafter PERB) determination. Strokes and Council 66, American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter Council 66) filed a charge with the respondent PERB, alleging that Strokes was discharged solely because of his protected activities on behalf of Council 66, of which he was President. On April 10, 1976, PERB found, following a hearing, that Maikels was motivated by anti-union animus in discharging Strokes. Accordingly, PERB ruled that the dismissal of Strokes was in violation of certain provisions of the Public Employees' Fair Employment Act (Civil Service Law, § 209-a, subd. 1, pars. (a) and (c)), commonly known as the Taylor Law, and it ordered the City, inter alia, to offer Strokes reinstatement to his former position and to make him whole for any loss of pay suffered by reason of his discharge. Challenging this determination, petitioners commenced the instant proceeding wherein they contend that PERB lacks jurisdiction to review a proceeding conducted pursuant to section 75 of the Civil Service Law and further assert that the board's decision was arbitrary and capricious. By order of Special Term, this proceeding was then transferred to this court for disposition.

Initially, we would point out that PERB plainly had jurisdiction to consider the legality of the dismissal in question. Since Strokes was fired in proceedings conducted pursuant to section 75 of the Civil Service Law, an article 78 proceeding would admittedly be the proper method for challenging the decision that his performance at work warranted his dismissal (Civil Service Law, § 76). However, the City overlooks the fact that the PERB inquiry centered upon an entirely different issue, i. e., whether his dismissal was motivated by Maikel's anti-union animus and, therefore, constituted an improper employer practice in contravention of paragraphs (a) and (c) of subdivision 1 of section 209-a of the Civil Service Law. In this sphere PERB is vested with the exclusive nondelegable jurisdiction to prevent such practices (Civil Service Law, § 205, subd. 5, par. (d)), and it is irrelevant to its determination whether or not cause for the employer's action in terminating Strokes actually existed (Sag Harbor Union Free School Dist. v. Helsby, 54 A.D.2d 391, 388 N.Y.S.2d 695, app. dsmd. 41 N.Y.2d ---, --- N.Y.S.2d ---, --- N.E.2d --- (1977). See also Matter of City of Albany v. Helsby, 29 N.Y.2d 433, 328 N.Y.S.2d 658, 278 N.E.2d 898). The court in Sag Harbor (supra, 54 A.D.2d p. 393, 388 N.Y.S.2d p. 697) emphasized this latter point in quoting from the PERB decision in that case as follows:

"Thus, the question before the hearing officer and us is not whether Goehringer and Lizewski could have been dismissed on the basis of their performance, but rather whether they were dismissed because of their active participation as members of the Association's Grievance Committee."

Moreover, such being the case, there can likewise be no doubt that PERB's action under consideration here will be unaffected by the disposition of the article 78 proceeding initiated by the intervenors-respondents to challenge the validity of the proceedings conducted pursuant to section 75 of the Civil Service Law, since the section 75 proceedings relate to the fact of misconduct, whereas PERB is concerned only with the employer's motivation in terminating Strokes.

The sole question remaining for our determination is whether PERB's ruling that Strokes' dismissal was due to motivations proscribed by the Taylor Law is arbitrary and capricious, and we hold that it is not. Petitioners do not contest the hearing officer's factual findings which were subsequently adopted by PERB. Hence, they apparently concede and the record demonstrates that Maikels knew of Strokes' union activities, that he was hostile to Strokes and Council 66, and that he would not have fired Strokes but for the latter's protected activities in connection with Council 66. Under these circumstances, PERB's ruling has a sound basis in reason and foundation in fact and, consequently, is supported by substantial evidence, and it must be confirmed (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 839, 313 N.E.2d 321, 325).

In so ruling, we are not unmindful of the pervasive power which PERB has in a matter such as this. However, the Legislature has seen fit to grant such power and, until such time as it chooses to alter this policy, we must follow the clear mandate of its enactment.

Finally, we would emphasize that, contrary to the assertion in the dissenting opinion herein, Strokes' reinstatement with full pay was ordered because anti-union animus was the "substantially motivating cause" of his dismissal and not merely one of the reasons therefor. Also, the continued anti-union animus of the employer would not, in itself, confer immunity from discharge upon Strokes should his negligent conduct continue. To defeat any discharge of an employee, the anti-union animus must not only exist on the part of the employer, but it must also be the reason for the dismissal in question.

The determination should be confirmed, and the petition dismissed, without costs.

Determination confirmed, and petition dismissed, without costs.

MAHONEY, J., concurs.

HERLIHY, J., concurs in a separate opinion.

KOREMAN, P. J., and LARKIN, J., dissent and vote to modify in an opinion by LARKIN, J.

HERLIHY, Justice (concurring).

I concur with the votes of Mr. Justice Main and Mr. Justice Mahoney for confirmation.

In this case I find that there is overwhelming evidence that the employee was singled out for punishment solely because of his union activities and, accordingly, PERB had no realistic alternative to secure enforcement of the Taylor Law provisions except by ordering reinstatement and reimbursement of lost wages. In any event, in this particular case the remedy imposed by PERB is not in excess of its powers and is reasonably designed to secure the rights of the union member.

It should be noted, however, that not every case of punishment imposed as a result of "anti-union animus" would justify a remedy which would preclude the public employer from reevaluating the charges against the petitioner, and this would be so as to facts which indicate the...