Professional Staff v. New York State Perb

• Decision Date: 17 October 2006
• Citation: 7 N.Y.3d 458,857 N.E.2d 1108
• Parties: In the Matter of PROFESSIONAL STAFF CONGRESS-CITY UNIVERSITY OF NEW YORK, Respondent, v. NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 1108

857 N.E.2d 1108

7 N.Y.3d 458

In the Matter of PROFESSIONAL STAFF CONGRESS-CITY UNIVERSITY OF NEW YORK, Respondent, v. NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD et al., Appellants.

Court of Appeals of New York.

October 17, 2006.

Sandra M. Nathan, Albany, and William L Busler for New York State Public Employment Relations Board, appellant.

Eliot Spitzer, Attorney General, New York City (Robert Easton, Richard Dearing, Caitlin Halligan and Jean Lin of counsel), Frederick P. Schaffer and Katherine Raymond for City University of New York, appellant.

Schwartz, Lichten & Bright, P.C., New York City (Stuart Lichten of counsel), for respondent.

James R. Sandner, Latham, and Marilyn S. Dymond for New York State United Teachers, amicus curiae.

Greenberg Burzichelli & Greenberg P.C., Lake Success (Harry Greenberg of counsel), Eddie M. Demmings, New York City, and Mary J. O'Connell for Municipal Labor Committee, amicus curiae.

Michael A. Cardozo, Corporation Counsel, New York City (Georgia Pestana of counsel), for City of New York, amicus curiae.

OPINION OF THE COURT

GRAFFEO, J.

In this CPLR article 78 proceeding, the issue is whether the Public Employment Relations Board (PERB) abused its discretion when, in dismissing an improper practice charge brought by a union, it concluded that the union's waiver of the right to negotiate certain subjects remained in effect after expiration of the parties' collective bargaining agreement.

Petitioner Professional Staff Congress (PSC) is the certified collective bargaining representative of approximately 17,000 instructional and administrative employees of respondent City University of New York (CUNY). PSC and CUNY entered into their first collective bargaining agreement (CBA) in 1973 and have had a succession of agreements since then. In 1972, before the first CBA with PSC, CUNY adopted an intellectual property policy addressing ownership of copyrights and patents, the payment of royalties and other issues related to intellectual property developed by CUNY employees. This policy, with revisions, remained in effect until November 2002. The intellectual property policy was never a subject of collective bargaining between PSC and CUNY, nor was it ever incorporated into any of the parties' CBAs.

After the 1996-2000 CBA expired and while the parties were negotiating a new agreement, CUNY began the process of amending its intellectual property policy. In response, in June 2001 PSC demanded negotiation concerning the intellectual property policy. CUNY declined to address the policy in collective bargaining, asserting that article 2 of the expired CBA constituted a waiver by the union of the right to negotiate particular items, including the intellectual property policy. Article 2 has been a component of the parties' agreements since the first CBA in 1973. It authorizes the CUNY Board of Trustees to alter existing bylaws or policies "respecting a term or condition of employment" after giving PSC "notice and an opportunity to consult" but without obtaining PSC's consent, provided the Board action is not inconsistent with a term of the CBA.¹ CUNY maintained that article 2 allows the CUNY Board of Trustees to change bylaws and policies that relate to matters not addressed in the CBA, such as the intellectual property policy, without negotiating with PSC. Relying on the principle that terms of an expired CBA continue after expiration of the agreement while the parties are negotiating a successor, CUNY contended that the article 2 waiver remained in effect during negotiations for a successor agreement and precluded the union from demanding that CUNY collectively bargain modifications to the intellectual property policy.

In November 2001, the union filed an improper practice charge with PERB, claiming that CUNY's refusal to negotiate modifications to the intellectual property policy was an improper practice under Civil Service Law § 209-a (1)(d), a Taylor Law provision that requires the parties to negotiate in good faith. The charge was not resolved at that time, however, because the parties reached agreement on a new CBA covering August 2000 to October 2002. Prior to executing the new contract, PSC withdrew its proposal concerning the intellectual property policy along with all of its other outstanding bargaining demands. The new CBA carried article 2 forward from the prior contract unchanged.

Just before the 2000-2002 CBA was to expire, PSC sent a letter to CUNY demanding that the parties begin collective bargaining for the successor agreement by discussing the intellectual property policy. At that time, CUNY was close to completing its procedure for unilateral alteration of the policy but had yet to formally adopt the revised policy. CUNY responded by again referencing article 2 of the CBA, submitting that it constituted a waiver by the union of the right to collectively bargain changes to the intellectual property policy. PSC maintained that it had not waived collective bargaining rights in article 2.

When CUNY adopted the new intellectual property policy in November 2002, PSC filed an amended improper practice charge reasserting the claims previously filed with PERB. After a hearing, the Administrative Law Judge (ALJ) agreed with CUNY that the union waived its right to negotiate concerning the intellectual property policy in article 2 of the CBA. But the ALJ held that the waiver expired when the CBA expired, reasoning that any other interpretation of the contract would result in a waiver of rights "in perpetuity," an outcome that would be contrary to the policies underlying the Taylor Law. As such, the ALJ found that CUNY's refusal to collectively bargain the intellectual property policy after expiration of the CBA amounted to an improper practice.

Both parties pursued administrative appeals to PERB, which modified the holding of the ALJ. PERB upheld the ALJ's interpretation of article 2 that the union had clearly and unambiguously waived the right to negotiate certain subjects, including the intellectual property policy. But PERB disagreed with the ALJ on the duration of the waiver, concluding that the waiver remained in effect after expiration of the CBA. PERB noted that, under Civil Service Law § 209-a (1)(e), known as the Triborough amendment, all terms of a collective bargaining agreement are deemed to continue after expiration of a CBA. It therefore determined that both parties are obligated to comply with the CBA and maintain the "status quo" while a new agreement is being negotiated. Finding that the article 2 waiver was part of the status quo for these parties and that it relieved CUNY of the obligation to collectively bargain its intellectual property policy, PERB dismissed PSC's improper practice charge.

In this article 78 proceeding commenced by PSC challenging PERB's ruling, the Appellate Division granted PSC relief by annulling PERB's determination and holding that CUNY had committed an improper practice when it refused to negotiate the intellectual property policy. First, the Appellate Division reasoned that bargaining waivers should not be interpreted to survive a CBA absent an express provision to that effect. Second, because Civil Service Law § 209-a (1)(e) requires employers to continue all the terms of an expired collective bargaining agreement but does not address the obligations of employees, the Appellate Division concluded that no reciprocal duty is imposed on employees. The Court therefore held that the article 2 waiver did not continue after expiration of the CBA and CUNY could not rely on it to justify its refusal to collectively bargain the terms of the intellectual property policy. We granted CUNY and PERB leave to appeal and we now reverse and reinstate PERB's determination.

The resolution of an improper practice charge is generally a matter within PERB's sound discretion (see 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, 814 N.Y.S.2d 572, 847 N.E.2d 1146 [2006]). We also defer to PERB's special knowledge and expertise in determining what constitutes the "status quo" that the parties must maintain after expiration of a collective bargaining agreement (see Matter of Town of Southampton v. New York State Pub. Empl. Relations Bd., 2 N.Y.3d 513, 780 N.Y.S.2d 522, 813 N.E.2d 602 [2004]). The determination in this case implicated PERB's discretionary authority in both areas.

PSC alleged that CUNY committed an improper practice by refusing to negotiate in good faith, as required by Civil Service Law § 209-a (1)(d). PERB's denial of the improper practice charge turned on its finding that the union waived its right to demand bargaining concerning the intellectual property policy in article 2 of the expired CBA. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it . . . . Such a waiver must be clear, unmistakable and without ambiguity" (Matter of Civil Serv. Empls. Assn. v. Newman, 88 A.D.2d 685, 686, 450 N.Y.S.2d 901 [3d Dept.1982] [internal quotation marks and citation omitted], affd. for reasons stated 61 N.Y.2d 1001, 475 N.Y.S.2d 379, 463 N.E.2d 1231 [1984]; see Matter of Board of Coop. Educ. Servs. Sole Supervisory Dist., Onondaga & Madison Counties v. New York State Pub. Empl. Relations Bd., 82 A.D.2d 691, 444 N.Y.S.2d 226 [3d Dept.1981]).

Here, in assessing whether there was a waiver, PERB began by analyzing the language in article 2 of the CBA, which specifically grants CUNY the right to make unilateral decisions concerning the alteration of "Bylaws, policies and resolutions ... respecting a term or condition of employment," provided that the alteration does not "conflict[] with a stated term" of the CBA and CUNY has complied with specified notice and consultation procedures.² Because the provision explicitly refers to "terms and conditions of...