Erie County Water Authority v. Kramer, 360

• Decision Date: 13 November 1957
• Docket Number: No. 360,C,360
• Citation: 167 N.Y.S.2d 557,4 A.D.2d 545
• Parties: , 41 L.R.R.M. (BNA) 2184, 33 Lab.Cas. P 71,123 ERIE COUNTY WATER AUTHORITY, Respondent, v. Jay KRAMER, and others, individually and as members constituting the New York State Labor Relations Board, and Utility Workers Union of America, LocalI.O., etc., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 557

167 N.Y.S.2d 557

4 A.D.2d 545, 41 L.R.R.M. (BNA) 2184,

33 Lab.Cas. P 71,123

ERIE COUNTY WATER AUTHORITY, Respondent, v. Jay KRAMER, and others, individually and as members

constituting the New York State Labor Relations

Board, and Utility Workers Union of

America, Local No. 360,

C.I.O., etc., Appellants.

Supreme Court, Appellate Division, Fourth Department.

Nov. 13, 1957.

Melvin Bong, Buffalo (Laurence J. Olmsted, Syracuse, of counsel), for respondent.

Philip Feldblum, New York City (George E. Moehringer, New York City, of counsel), for appellant New York State Labor Relations Board.

Lipsitz & Green, Buffalo, for appellant Utility Workers Union of America, Local 360, C.I.O.

Before McCURN, P. J., and KIMBALL, WILLIAMS, BASTOW and GOLDMAN, JJ.

WILLIAMS, Justice.

Both respondents have appealed from an order of the Supreme Court which restrains the respondents from proceeding against the petitioner, Erie County Water Authority, before the New York State Labor Relations Board on a charge of unfair labor practices filed by the respondent Utility Workers Union of America against the Water Authority. The essence of the charge is the refusal of the Authority to bargain collectively with the Union as representative of the Authority's employees. In the proceeding below, instituted under Article 78 of the Civil Practice Act, the Authority questioned the jurisdiction of the respondent board to entertain and determine the Union's charge, alleging that the Authority is an agency exempted from the general provisions of the Labor Relations Act by Section 715 of the Labor Law. The respondents-appellants, on the other hand, contend that the provisions of Section 1059 of the Public Authorities Law and not said Section 715 of the Labor Law applies. In brief, this is the question presented for our determination.

Section 1059 is as follows:

'Any public officer of employee under civil service, selected by the authority may, with the consent of the commission, board or department by which he or she has been employed, be transferred to the authority and shall be eligible for such transfer and appointment without examination to comparable offices, positions and employment under the authority. The salary or compensation of any such officer or employee shall after such transfer be paid by the authority. But notwithstanding the provisions of this act, any such officers or employees so transferred to the authority, pursuant to the provisions of this section, who are members of or beneficiaries under any existing pension or retirement system, shall continue to have all rights, privileges, obligations and status with respect to such fund, system or systems as are now prescribed by law, but during the period of their employment by the authority, all contributions to any pension or retirement fund or system to be paid by the employer on account of such officers or employees, shall be paid by the authority; and all such officers and employees who have been appointed to positions under the rules and classifications of the personnel office of the county of Erie shall have the same status with respect thereto after transfer to the authority as they had under their original appointments. It is hereby declared that in the interest of efficiency and insofar as may be practicable, all employees engaged in the operation of any property or properties, except in an executive capacity, at the time such property or properties shall have been acquired by the authority, pursuant to the provisions of this act, shall become the employees of the authority. The authority shall be deemed an employer within the meaning of the state labor relations law. The appointment and promotion of all employees of the authority shall be made in accordance with the provisions of the civil service law (constituting chapter seven of the consolidated laws) and such rules as the personnel officer of the county of Erie may adopt and make applicable to such authority.' [Italics added.]

Section 715 of the Labor Law reads.

'The provisions of this article shall not apply to the employees of any employer who concedes to and agrees with the board that such employees are subject to and protected by the provisions of the national labor relations act or the federal railway labor act, or to employees of the state or of any political or civil subdivision or other agency thereof, or to the employees of any charitable, educational or religious association or corporation, no part of the net earnings of which inures to the benefit of any private shareholder or individual, except that the provisions of this article shall apply to employees of such charitable, educational or religious associations or corporations whose services are performed in connection with the operation of a building owned or operated by such an association or corporation and used or occupied as a commercial or industrial enterprise operated for the production of profit, irrespective of the purposes to which such profit may be applied, and which employees are not engaged in the charitable, educational or religious activities of such association or corporation.'

Also of importance is Section 1072 of the Public Authorities Law:

'In so far as the provisions of this title are inconsistent with the provisions of any other act, general or special, or of any local law, the provisions of this title shall be controlling.'

The Erie County Water Authority was created by Chapter 845 of the Laws of 1949. This chapter was repealed by Chapter 804 of the Laws of 1950 and re-enacted by Chapter 804 of the Laws of 1950 which specifically provided that the repeal was not to be deemed a dissolution of the corporate existence of the Authority. In subdivision 4 of Section 1053, Public Authorities Law, the legislature declared that the Authority was created 'for the benefit of the people of the county of Erie and the state of New York, for the improvement of their health, welfare and prosperity * * *'. That section (subd. 1) also specifically refers to the Authority as a 'public benefit corporation'.

The Authority was formed primarily for the purpose of acquiring and operating the properties formerly held by the Western New York Water Company, a corporation privately owned and operated. It was contemplated, therefore, when this law was passed, that the main asset that the Authority would acquire was a privately owned utility corporation, none of the employees of which would have civil service status, but who might well be members of a union. Because of the functions of the Western New York Water Company in supplying water and services to residents of Erie County, it was essential that the transition be effected in such a manner that there would be complete continuity of service to consumers and no interruption in operations. Therefore, Section 1059 was enacted with a view to such continuity of service and employment, and also to define the rights and benefits available to Authority employees after the acquisition of the Western New York Water Company properties. These rights and benefits included the protection afforded by civil service status; 'appointment and promotion * * * in accordance with * * * the civil service law'; the retention of classifications and positions without the necessity of taking examinations; membership in the New York State Retirement program and that the Authority occupy the status of an 'employer within the meaning of the state labor relations law.' There are other provisions relating to transfers of civil service employees to employment by the Authority that we need not necessarily consider at this time although they reveal a general plan of benefits to transferred employees, whether civil service or otherwise.

It is interesting to note the historical activites of the Authority. Pursuant to its purposes and powers, it acquired the operating plant and property of the Western New York Water Company on December 23, 1953. In the interest of efficiency and continuity of operation, as mandated by said Section 1059, about 108 of the Water Company's employees became employees of the Authority and were duly classified temporarily in the non-competitive class of the Civil Service by the Personnel Officer of Erie County, pending final reclassification pursuant to the Civil Service Law. Of the employees so acquired, some 52 production and maintenance employees were members of the Utility Workers Union, Local 360 which had been recognized as the exclusive bargaining agent by the Western New York Water Company for four years, prior to the acquisition of the property by the Authority. No contract was in effect, however, at the time of acquisition, the last contract having expired 22 days before, on December 1, 1953. On December 22, 1953, the Union advised the Authority that it represented the employees of the Water Company and that it desired to meet with the Authority for purposes of negotiating a new collective bargaining contract. The Authority, on January 12, 1954, advised the Union that it declined to meet with the Union for collective bargaining purposes inasmuch as Section 715, Labor Law, excluded the Authority from the operation of Article 20 of the Labor Law (State Labor Relations Act).

The Union thereupon filed charges with the Labor Relations Board, alleging that the Authority's refusal to bargain collectively constituted an unfair labor practice within the meaning of § 704, Labor Law. The Board scheduled a hearing on February 23, 1954 to determine its jurisdiction. The Authority appeared specially to object to jurisdiction to conduct any proceedings against it. On February 15, 1955, the Board issued a memorandum decision to the effect that section 715 of the Labor Law and section 1059 of the Public Authorities Law were not inconsistent; that the Authority had been specifically designated an employer within the meaning of the Labor Law and that collective bargaining could co-exist with...