Kent v. Lefkowitz
| Decision Date | 10 May 2016 |
| Citation | 54 N.E.3d 1149,2016 N.Y. Slip Op. 03650,35 N.Y.S.3d 278,27 N.Y.3d 499 |
| Parties | In the Matter of Susan M. KENT, as President of the New York State Public Employees Federation, AFL–CIO, Respondent, v. Jerome LEFKOWITZ, as Chairman of the New York State Public Employment Relations Board, et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
David P. Quinn, Albany, for Jerome Lefkowitz and another, appellants.
Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan, Barbara D. Underwood and Andrea Oser of counsel), for New York State Governor's Office of Employee Relations and another, appellants.
Lisa M. King, Albany, for respondent.
.
In January 1996, respondent New York State Racing and Wagering Board reduced per diem wages for its seasonal employees by 25%. In response, the New York State Public Employees Federation, AFL–CIO (PEF) filed an improper practice charge, alleging that the reduction in wages violated Civil Service Law § 209–a (1)(d)
. In this CPLR article 78 proceeding, the issue is whether the decision of respondent Public Employment Relations Board (PERB), dismissing that improper practice charge, was affected by an error of law or was arbitrary and capricious or an abuse of discretion. We conclude that it was not.
PEF is the certified collective bargaining representative for the Professional, Scientific and Technical Services Unit of New York State employees. That unit includes seasonal track personnel employed by the Racing Board,1 an entity within the executive branch of New York State government. Seasonal track employees are exempt from civil service classification under Civil Service Law § 41
and are appointed each year by the chair of the Racing Board to work during a specific season from opening date until closing date. The compensation of such employees is set each year by the Racing Board chair, subject to the approval of the Director of the Budget (State Finance Law §§ 44, 49 ).
In October 1995, PEF and the executive branch of the State—through its bargaining agent respondent New York State Governor's Office of Employee Relations (GOER)—entered into a collective bargaining agreement (CBA) that was operative from 1995 to 1999. Appendix II of the CBA contained a “Memorandum of Interpretation,” or side letter agreement, which addressed terms and conditions of the employment of seasonal employees. Section 1 of the side letter agreement incorporated by reference more than 50 articles from the CBA. Section 2 of the side letter agreement, labeled “Compensation,” covered—in specific detail—lump-sum payments (in paragraph [A] ) and salary increases for eligible employees (in paragraph [B] ) for specific fiscal years covered by the CBA. Paragraph (C) addressed the effect on a seasonal employee's rate of compensation “[i]f during the term of th[e] Agreement the rate of compensation of any employee in a seasonal position [wa]s increased at the discretion of the Director of the Budget for the purpose of making such rate equal to the [f]ederal minimum wage level.” Paragraph (D) of the side letter agreement expressly made paragraphs (A) through (C) applicable to seasonal employees paid on a per diem basis. The side letter agreement also covered holiday compensation and workers' compensation.
In January 1996, approximately two months after the side letter agreement was executed, the Racing Board's chair announced a 25% reduction in the per diem pay of seasonal track employees, effective with the January 1996 appointments. In response, PEF filed an improper practice charge with PERB, alleging that this reduction violated the Racing Board's duty to negotiate in good faith under Civil Service Law § 209–a (1)(d)
. The Racing Board answered, raising the affirmative defense of waiver.2 After administrative hearings, PERB's Assistant Director rejected the waiver defense and found a violation of Civil Service Law § 209–a (1)(d). The Racing Board filed exceptions to that decision. PEF also filed exceptions, which focused on the relief awarded by the Assistant Director.
PERB dismissed the improper practice charge. It found that, while the Racing Board had an obligation to negotiate the wages of seasonal employees, the side letter agreement was “a negotiated limitation upon the State Budget Director's discretion with respect to unilateral adjustments in the rates of compensation for seasonal positions in the unit” and, therefore, the duty to negotiate was satisfied (45 PERB ¶ 3041 [2012] ).
Petitioner, then president of PEF, commenced this CPLR article 78 proceeding, arguing that PERB's determination was “arbitrary, capricious, irrational and contrary to law.” Supreme Court dismissed the petition, finding that “PERB's experience with the subtleties of how parties negotiate a collective bargaining agreement ma[d]e it uniquely qualified to frame the issue and having done so in a reasoned manner, the court may not interfere” (46 PERB¶ 7006 [2013] ).
The Appellate Division reversed, with two Justices dissenting (119 A.D.3d 1208, 991 N.Y.S.2d 154
). The majority held that “PERB's determination ... was arbitrary and capricious” because it “d[id] not believe” that the side letter agreement demonstrated that the Racing Board negotiated the unilateral 25% reduction in wages (id. at 1212, 991 N.Y.S.2d 154 ). The dissent opined that “when PERB's interpretation of the side letter agreement is afforded the deference it is due, its determination that the [Racing] Board met its burden of establishing that it satisfied its duty to negotiate with [PEF] is rational and not arbitrary and capricious” (id. at 1214, 991 N.Y.S.2d 154 [citations omitted] ).
Respondents—PERB (and its Chairman), GOER, and the Racing Board—appeal as of right pursuant to CPLR 5601(a)
.
Pursuant to the State Finance Law, the chair of the Racing Board has the discretion to set the compensation of seasonal track employees, including per diem compensation, “subject to the approval of the director of the budget” (State Finance Law § 44[1]
; see also
id. § 49). Nevertheless, the Taylor Law—namely, Civil Service Law § 209–a (1)(d) —makes it an improper practice for a public employer, in this case the Racing Board, “to refuse to negotiate in good faith with the duly recognized or certified representatives of its public employees”—in this case, PEF. The parties do not dispute that per diem compensation rates must be negotiated. Instead, the parties dispute whether this duty to negotiate was satisfied by the negotiation of the side letter agreement.
“Duty satisfaction occurs when a specific subject has been negotiated to fruition and may be established by contractual terms that either expressly or implicitly demonstrate that the parties had reached accord on that specific subject” (Matter of Nassau County Sheriff's Corr. Officers Benevolent Assn., Inc. [County of Nassau], 48 PERB ¶ 3014 [2015] ). To succeed on a duty satisfaction defense, “a respondent has the burden of proving that the parties have negotiated terms in an agreement that are reasonably clear on the specific subject at issue” (Matter of Nassau County Sheriff's Corr. Officers Benevolent Assn., Inc. [County of Nassau], 46 PERB ¶ 3002 [2013] ). That determination requires PERB “to interpret the meaning of the agreement through the application of standard principles of contract interpretation” (Matter of Shelter Is. Faculty Assn., NYSUT, AFT, NEA, AFL–CIO , 45 PERB ¶ 3032 [2012] ).
Our scope of review in this context is limited to whether PERB's decision “was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803[3]
; see also
Matter of Town of Islip v. New York State Pub. Empl. Relations Bd., 23 N.Y.3d 482, 492, 991 N.Y.S.2d 583, 15 N.E.3d 338 [2014] [internal quotation marks omitted] ). Moreover, as we have recognized, “PERB is accorded deference in matters falling within its area of expertise” (Matter of Town of Islip, 23 N.Y.3d at 492, 991 N.Y.S.2d 583, 15 N.E.3d 338 ). This includes “the resolution of improper practice charges” (Matter of Poughkeepsie Professional Firefighters' Assn., Local 596, IAFF, AFL–CIO–CLC v. New York State Pub. Empl. Relations Bd., 6 N.Y.3d 514, 522, 814 N.Y.S.2d 572, 847 N.E.2d 1146 [2006]
).
Respondents argue that the side letter agreement made it “reasonably clear” that the parties satisfied their bargaining obligations concerning limits to be placed on the Budget Director's discretion to set wages. Specifically, respondents argue that paragraph (C) of the side letter agreement shows that, outside the specific negotiated wage increases, the parties understood that the Budget Director retained the statutory discretion to set wages. Respondents further argue that the Appellate Division erred by declining to defer to, and substituting its own judgment for, PERB's construction of the parties' side letter agreement.
Petitioner argues that the “specific subject” of the improper practice charge is the 25% wage decrease and that it is not reasonably clear from the side letter agreement that PEF and the Racing Board negotiated concerning the Budget Director's ability to unilaterally reduce wages. According to petitioner, PERB's determination was in error and the Appellate Division's order holding it arbitrary and capricious should be affirmed.
By statute, the per diem compensation for seasonal employees is set at the discretion of the Racing Board chair, subject to the approval of the Budget Director (State Finance Law §§ 44
, 49 ). That statutorily authorized discretion can be limited through the collective bargaining process. Here, PERB found that the side letter agreement, which incorporated more than 50 provisions of the CBA, comprehensively addressed the parties' agreement with respect to limits on that discretion. PERB's decision was rational and supported by the language of the side letter agreement.
The side letter agreement sets out the specific...
To continue reading
Request your trial