MATTER OF ROMAINE v. Cuevas

• Decision Date: 29 May 2003
• Citation: 305 A.D.2d 968,762 N.Y.S.2d 122
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of ROBERT ROMAINE, as President of Transport Workers Union, Local 106, Transit Supervisors Organization, Petitioner,<BR>v.<BR>MICHAEL R. CUEVAS, as Chair of the Public Employment Relations Board, et al., Respondents.

305 A.D.2d 968

762 N.Y.S.2d 122

In the Matter of ROBERT ROMAINE, as President of Transport Workers Union, Local 106, Transit Supervisors Organization, Petitioner,

v.MICHAEL R. CUEVAS, as Chair of the Public Employment Relations Board, et al., Respondents.

Decided May 29, 2003.

Peters, Spain, Lahtinen and Kane, JJ., concur.

Crew III, J.P.

Petitioner filed a charge with respondent Public Employment Relations Board (hereinafter PERB) alleging that respondent New York City Transit Authority (hereinafter NYCTA) violated Civil Service Law § 209-a (1) (d) and committed an improper employer practice by permitting Station Supervisors Level I (hereinafter Level I supervisors) to perform work that previously had been performed exclusively by Station Supervisors Level II (hereinafter Level II supervisors). Specifically, petitioner alleged that Level I supervisors had been permitted to perform three distinct tasks that previously had been the exclusive province of Level II supervisors—namely, exercising supervisory responsibility over employees working at groups of one or more subway stations or zones, conducting revenue or "booth" audits at subway stations and conducting investigations with regard to passenger accidents and operational and/or mechanical problems with subway turnstiles and gates.

At the conclusion of the administrative hearing that followed, the Administrative Law Judge (hereinafter ALJ) concluded that NYCTA indeed had violated Civil Service Law § 209-a (1) (d) with regard to the assignment of zone supervision duties to Level I supervisors and ordered NYCTA to cease and desist such practice. As to the issue of booth audits and investigations, however, the ALJ found that NYCTA had failed to establish that such tasks had been performed exclusively by Level II supervisors and, hence, found no further violation. Petitioner and NYCTA filed exceptions to the ALJ's decision and, upon review, PERB reversed such decision in part, concluding that petitioner had failed to establish exclusivity with regard to the task of zone supervision. Petitioner thereafter commenced this proceeding pursuant to CPLR article 78 seeking to annul PERB's determination and, upon stipulation of the parties, Supreme Court transferred the proceeding to this Court.

In reviewing the underlying determination, it is not this Court's function to weigh the evidence or assess the credibility of the testimony presented (see Matter of De Vito v Kinsella, 234 AD2d 640, 642 [1996]). Rather, our inquiry is limited to whether PERB's determination is supported by substantial evidence which, in turn, depends upon whether there exists a rational basis in the record as a whole to support the findings upon which such determination is based (see Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v New York State Pub. Empl. Relations Bd., 301 AD2d 946, 947 [2003]). To establish a violation of Civil Service Law § 209-a (1) (d), it must be shown that the work in question had been performed by unit employees exclusively and, further, that the reassigned tasks were substantially similar to those previously performed by unit employees (see Matter of State of New York Dept. of Correctional Servs. v Kinsella, 220 AD2d 19, 22 [1996]). Notably, petitioner bears the burden of demonstrating exclusivity (see Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO [County of Erie], 28 PERB ¶ 3053, 3125 [1995]). Based upon our review of the record as a whole, we cannot say that petitioner met that burden here.

Turning first to the issue of zone supervision, the testimony offered by NYCTA's witnesses, if credited, provides substantial evidence to support PERB's findings that this particular task had not been performed exclusively by Level II supervisors. Although conceding that...