Newark Valley Cent. School Dist. v. Public Employment Relations Bd.

• Decision Date: 24 March 1994
• Citation: 632 N.E.2d 443,610 N.Y.S.2d 134,83 N.Y.2d 315
• Parties: , 632 N.E.2d 443, 145 L.R.R.M. (BNA) 2943, 62 USLW 2656, 90 Ed. Law Rep. 738 In the Matter of NEWARK VALLEY CENTRAL SCHOOL DISTRICT, Appellant, v. PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 134

610 N.Y.S.2d 134

83 N.Y.2d 315, 632 N.E.2d 443, 145

L.R.R.M. (BNA) 2943,

62 USLW 2656, 90 Ed. Law Rep. 738

In the Matter of NEWARK VALLEY CENTRAL SCHOOL DISTRICT, Appellant, v. PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.

Court of Appeals of New York.

March 24, 1994.

[83 N.Y.2d 316] [632 N.E.2d 444]

Hogan & Sarzynski, Binghamton (John P. Lynch and John B. Hogan of counsel), for appellant

David P. Quinn, and Ernest F. Hart, Albany, for Public Employment Relations Bd., respondent.

[83 N.Y.2d 317] Ivor R. Moskowitz, Bernard F. Ashe and Rocco A. Solimando, Albany, for Newark Valley Cardinal Bus Drivers, NYSUT/AFT/AFL-CIO, Local 4360, respondent.

[83 N.Y.2d 318] Jay Worona, and Joseph B. Porter, Albany, for New York State School Boards Ass'n, Inc., amicus curiae.

OPINION OF THE COURT

KAYE, Chief Judge.

The issue before us is whether a ban on smoking by school bus drivers when no students are on board should have been collectively bargained, as a term or condition of employment, or was preempted by statute or policy and therefore properly adopted by the school district unilaterally. We conclude, as did the Appellate Division, that the matter was subject to collective bargaining.

I.

In early 1990, appellant Newark Valley Central School District adopted a smoking ban designed to promote the general policy against smoking in open areas of schools "[i]n accordance with Public Health Law, Article 13-E, 1399- o(6)," the State legislation addressing the risks of secondhand smoke. Appellant's resolution, however, also included a rule banning smoking in school buses, whether or not students were present. ¹ After denial of a demand to negotiate, the bus drivers filed an improper practice charge with the Public Employment Relations Board (PERB), alleging violation of Civil Service Law § 209-a(1)(d).

The matter was referred on stipulated facts to an Administrative Law Judge (ALJ), who rejected the District's contention that PERB was bound by the decision of the Appellate Division in Matter of Rush-Henrietta Cent. School Dist. v. Newman, 151 A.D.2d 1001, 542 N.Y.S.2d 440, lv. denied, 75 N.Y.2d 704, 552 N.Y.S.2d 110, 551 N.E.2d 603. In that case the Fourth Department held a regulation of the Commissioner of Education (8 NYCRR 156.3[g][5], promulgated pursuant to Education Law § 3624, preempted the obligation of a school district to negotiate a ban on smoking in school buses. ² Finding that neither the Education Law nor Public Health Law article 13-E required appellant's rule, the ALJ concluded that it was subject to negotiation.

PERB confirmed the ALJ's determination, rejecting the District's additional contention that its rule was justified by "an inherent, residual core of policy or right which permits it to avoid a bargaining duty if it acts in the name of the students' health and safety" (see, Matter of Board of Educ. v. New York State Pub. Empl. Relations Bd., 75 N.Y.2d 660, 667, 555 N.Y.S.2d 659, 554 N.E.2d 1247). PERB concluded that article 13-E of the Public Health Law and existing regulations reflected the entirety of the State's current public policy concerning secondhand smoke risks, and that no additional facts in the record supported the conclusion that smoking in a bus necessarily presents a health hazard when there are no passengers.

The District then instituted this CPLR article 78 proceeding seeking annulment of PERB's determination. Supreme Court granted the petition, holding that the Commissioner of Education's smoking regulation preempted a school district's obligation to negotiate a blanket prohibition against smoking on its buses. The Appellate Division, Third Department, reversed, concluding that neither the statute nor the regulations prohibited collective bargaining, 189 A.D.2d 229, 596 N.Y.S.2d 216. We agree.

II.

The scope of our review is well settled. We accord deference to PERB, as the agency charged with implementing the Taylor Law (Civil Service Law art. 14), as to matters falling within the agency's special competence developed in administering the statute--whether, for example, a particular matter is a term or condition of employment (see, Matter of Board of Educ. v. New York State Pub. Empl. Relations Bd., 75 N.Y.2d 660, 667, 555 N.Y.S.2d 659, 554 N.E.2d 1247, supra, citing Matter of West Irondequoit Teachers Assn. v. Helsby, 35 N.Y.2d 46, 50, 358 N.Y.S.2d 720, 315 N.E.2d 775; Matter of Rosen v. Public Empl. Relations Bd., 72 N.Y.2d 42, 47, 530 N.Y.S.2d 534, 526 N.E.2d 25). Deference to PERB is not required, however, if the issue is one of statutory interpretation, dependent on discerning legislative intent, as statutory construction is the function of the courts (Matter of Rosen v. Public Empl. Relations Bd., 72 N.Y.2d, at 47-48, 530 N.Y.S.2d 534, 526 N.E.2d 25, supra ). Because the question whether the District's duty to negotiate a smoking policy was preempted by statute or policy is an issue of law, we must independently examine whether smoking on school buses was a prohibited bargaining subject (see, Matter of City School Dist. v. New York State Pub. Empl. Relations Bd., 74 N.Y.2d 395, 402, 547 N.Y.S.2d 820, 547 N.E.2d 75).

"Preemption," in the Taylor Law context, means that collective bargaining of terms and conditions of employment is prohibited because a plain and clear bar in statute or policy involving " 'an important constitutional or statutory duty or responsibility' " leaves an agency with no discretion as to how an issue may be resolved (Matter of Board of Educ. v. New York State Pub. Empl. Relations Bd., 75 N.Y.2d 660, 668, 555 N.Y.S.2d 659, 554 N.E.2d 1247, supra ). In the absence of such a law or policy, a subject may be negotiated.

Examination of the statutory and regulatory schemes which purport to address smoking compels the conclusion that the subject of smoking by school drivers on empty buses is not preempted. Education Law § 3624, and the Commissioner's implementing regulation (8 NYCRR 156.3[g][5], speak to conduct that might "impair the safe operation of * * * transportation facilities while actually being used for the transport of pupils " (8 NYCRR 156.3[g][5] [emphasis added]. The District therefore cannot look to the Education Law as authority to regulate driver conduct when buses are not actually being used for the transport of pupils--in other words, when students are not on board. ³

Nor are the Education Law provision and its implementing regulation aimed at eliminating dangers posed to pupils by secondhand smoke. Whether smoking drivers do or do not present a health hazard to students who later board the bus, an issue we do not reach, ⁴ the grant of regulatory authority pursuant to Education Law § 3624 is limited to activities that might distract the driver from safe driving practices. This is apparent from the prohibition on eating and drinking, which carry no secondhand risk to students, but might cause the driver to lose concentration on the task of operating the bus. ⁵ Negotiation of smoking restrictions while students are not on board is therefore not prohibited by Education Law § 3624 or 8 NYCRR 156.3(g)(5).

Regulation of the environmental hazard caused by secondhand smoke is unquestionably the concern of Public Health Law article 13-E (see especially, L.1989, ch. 244, § 1). This legislation likewise does not...