Rosen v. Public Employment Relations Bd.

• Decision Date: 09 June 1988
• Citation: 530 N.Y.S.2d 534,72 N.Y.2d 42,526 N.E.2d 25
• Parties: , 526 N.E.2d 25, 129 L.R.R.M. (BNA) 2190, 48 Ed. Law Rep. 284 Matter of Francine ROSEN, Appellant, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 534

530 N.Y.S.2d 534

72 N.Y.2d 42, 526 N.E.2d 25, 129

L.R.R.M. (BNA) 2190,

48 Ed. Law Rep. 284

Matter of Francine ROSEN, Appellant, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent.

Court of Appeals of New York.

June 9, 1988.

Richard B. Wolf, Poughkeepsie, for appellant

Martin L. Barr, Albany, for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

In interpreting the scope of a public employee's right to organize without interference under the Public Employees' Fair Employment Act (Civil Service Law, art. 14, § 200 et seq., popularly known as the Taylor Law), the Public Employment Relations Board (PERB) has determined that activities engaged in by petitioner, a college French teacher--including intermittent, informal meetings with other unorganized faculty members and presenting to their employer, the college, grievances relating to their terms and conditions of employment--did not constitute "employee organization" within the meaning of section 201(5) and was not activity protected by section 202. PERB thereby rejected an interpretation of the Taylor Law that would extend that statute's protection to "concerted activity" which falls short of "employee organization". For the following reasons, we agree with PERB's interpretation of the applicable provisions of the Taylor Law and affirm the order of the Appellate Division, 125 A.D.2d 657, 510 N.Y.S.2d 180.

I

Petitioner, Francine Rosen, is a teacher at Dutchess Community College ¹ and at the college's affiliated French School in Poughkeepsie, New York. ² The faculty of the college proper is represented by the Dutchess United Teachers; the faculty of the French School, however, is not formally organized. During the fall semester of 1980, faculty members at the French School, including petitioner, began to meet informally to discuss their concerns about various aspects of their employment. On behalf of the group, and with the knowledge and consent of at least some of them, petitioner related their grievances to the associate dean at the main campus responsible for supervising the French School. Petitioner voiced the complaints of the group during meetings with the associate dean commencing in May 1981, and continuing through 1982. The record discloses meetings and correspondence between the two concerning salary, classroom size and course load. Additionally, petitioner attempted on several occasions to resolve an individual complaint regarding her own status as a part-time employee at the college.

In January 1983, the college administration reduced petitioner's teaching schedule by a four-hour course, thereby reducing her semester income by $1,400. Petitioner subsequently filed with PERB and improper employer practice charge, alleging that the college had retaliated against her for having exercised her right to organize in violation of Civil Service Law § 209-a(1). The Administrative Law Judge dismissed the charge, finding that the college had shown that it would have reduced petitioner's hours--regardless of her complaints about the terms and conditions of employment at the French School--because it did not wish to afford her full-time status. Upon administrative review, however, the Board concluded that the college had indeed reduced petitioner's hours "at least in part because complained about the terms and conditions of employment at the French School". ³ PERB found that although petitioner's complaints were "made with the knowledge and consent of some of the teachers at the French School after they had discussed their concerns among themselves", there was no indication in the record that these teachers were "seeking to form an employee organization or to be represented by such an organization". Comparing the language of section 202 to the broader provisions found in the National Labor Relations Act (29 U.S.C. § 151 et seq. ), PERB concluded that the breadth of employee activity protected by section 202 was more narrow than that embraced by the analogous provisions in the NLRA, which explicitly protect certain "concerted activity" such as that in which petitioner engaged. PERB determined that the college had therefore not committed an improper practice under section 209-a(1), which prohibits interference with the rights guaranteed to the public employee under section 202.

Petitioner thereafter instituted the instant proceeding pursuant to CPLR article 78 and Civil Service Law § 213. Supreme Court annulled PERB's determination and ordered petitioner reinstated with back pay. The court concluded that PERB's interpretation of section 202 was unduly narrow, that petitioner's activities did fall within those protected by section 202, and that the college's reduction of petitioner's course load in part because of her representation of the group's grievances constituted an improper practice in violation of section 209-a(1). After observing that the right to organize is illusory if employees "can be fired * * * upon rumblings that qualitatively fall short of PERB's standard the court noted that the agency's interpretation would have a chilling effect upon others initiating concerted activity (128 Misc.2d 628, 633, 490 N.Y.S.2d 705). The Appellate Division reversed and confirmed the determination of PERB, holding that differences between the provisions in the Taylor Law and the corresponding provisions of the NLRA provide a rational basis for according the Taylor Law a more narrow construction. The appeal is here pursuant to leave granted by this court.

Petitioner contends that the informal meeting of the faculty members at the French School to discuss complaints regarding the terms and conditions of their employment and her presentation, on their behalf, of these grievances, constitutes an assertion of public employee rights under section 202. Moreover, petitioner was PERB's restrictive interpretation undermines the purpose of the statute, chills initiatives to form organizations in the workplace, and encourages public employers to retaliate against employees before signs of formal organization have surfaced.

II

Initially, we note that no question is presented on this appeal as to whether there is substantial evidence in the record to support an administrative determination (see, CPLR 7803 ). Rather, the issue as framed by the parties below is whether, on the undisputed facts of this case, PERB has rationally interpreted the scope of a public employee's right to organize under section 202 as not including "concerted activity" that falls short of "employee organization" (see, CPLR 7803 ). An administrative agency's interpretation of the statute it is charged with implementing is entitled to varying degrees of judicial deference depending upon the extent to which the interpretation relies upon the special competence the agency is presumed to have developed in its administration of the statute. Where interpretation "involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data" within the agency's particular expertise ( Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459, 426 N.Y.S.2d 454, 403 N.E.2d 159), great deference is accorded the agency's judgment ( see, Matter of Incorporated Vil. of Lynbrook v. New York State Pub. Employment Relations Bd., 48 N.Y.2d 398, 404, 423 N.Y.S.2d 466, 399 N.E.2d 55 Matter of West Irondequoit Teachers Assn. v. Helsby, 35 N.Y.2d 46, 50-51, 358 N.Y.S.2d 720, 315 N.E.2d 775 ). On the other hand, where as here, the question is one of pure statutory construction "dependent only on accurate apprehension of legislative intent little basis to rely on any special competence" ( Kurcsics v. Merchants Mut. Ins. Co., supra, 49 N.Y.2d at 459, 426 N.Y.S.2d 454, 403 N.E.2d 159), judicial review is less restricted as " 'statutory construction is the function of the courts' " ( Matter of Howard v. Wyman, 28 N.Y.2d 434, 438, 322 N.Y.S.2d 683, 271 N.E.2d 528, quoting Matter of Mounting & Finishing Co. v. McGoldrick, 294 N.Y. 104, 108, 60 N.E.2d 825; see, Matter of Town of Mamaroneck PBA v. New York State Pub. Employment Relations Bd., 66 N.Y.2d 722, 724, 496 N.Y.S.2d 995, 487 N.E.2d 905).

Turning then to the provisions of the Taylor Law at issue, section 209-a(1) declares that certain conduct, when deliberately engaged in by a public employer, shall constitute an improper employer practice: "shall be an improper practice for a public employer or its agents deliberately (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in for the purpose of depriving them of such rights; (b) to dominate or interfere with the formation or administration of any employee organization for the purpose of depriving them of such rights; (c) to discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any employee organization". Any finding of an improper employer practice under section 209-a(1), however, must be supported by a finding that the employee was coerced, restrained, discriminated against, or punished for having engaged in activity that is protected under section 202 of the Taylor Law--i.e. as a consequence of having exercised rights guaranteed by section 202. Section 202 in turn provides that "employees shall have the right to form, join and participate in, or to refrain from forming, joining or participating in, any employee organization of their own choosing."

In order to apprehend the breadth of activities the Legislature sought to protect by the right to "form, join and participate in * * * any employee organization", we look to a Federal counterpart, the National Labor Relations Act, which governs the relationship between employers and employees in the private sector (29 U.S.C. § 152 NLRA § 2). Al...