Shelofsky v. Helsby

• Decision Date: 15 March 1973
• Citation: 343 N.Y.S.2d 98,32 N.Y.2d 54,295 N.E.2d 774
• Parties: , 295 N.E.2d 774, 83 L.R.R.M. (BNA) 2067, 71 Lab.Cas. P 53,065 In the Matter of Joseph SHELOFSKY et al., Appellants, v. Robert D. HERLSBY et al., Constituting the Public Employment Relations Board et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 98

343 N.Y.S.2d 98

32 N.Y.2d 54, 295 N.E.2d 774, 83

L.R.R.M. (BNA) 2067,

71 Lab.Cas. P 53,065

In the Matter of Joseph SHELOFSKY et al., Appellants, v. Robert D. HERLSBY et al., Constituting the Public Employment Relations Board et al., Respondents.

Court of Appeals of New York.

March 15, 1973.

James D. Featherstonhaugh, Samuel Jacobs and Harold G. Beyer, Jr., Albany, for appellants.

Louis J. Lefkowitz, Atty. Gen. (John Q. Driscoll and Ruth Kessler Toch, Albany, of counsel), for respondents.

Arthur J. Harvey, Albany, for Police Conference of New York, Inc., amicus curiae.

BREITEL, Judge.

Plaintiffs, State employees, on their own behalf and those similarly situated, and the Civil Service Employees Association, Inc., in a submitted controversy upon an agreed statement of facts, sought a declaratory judgment and injunction against the Public Employment Relations Board. Pending before the board were applications to designate the positions of the employees as 'managerial' or 'confidential'. Once so designated, the employees would be barred by statute from membership in public employee bargaining organizations. Plaintiffs contend that the statute denies the employees freedom of association and equal protection of the laws and would impair contractual benefits under insurance programs sponsored by the employee organization. They also contend that standards for designating managerial and confidential employees are impermissibly vague. They have appealed from an order directing judgment in favor of defendants.

The order of the Appellate Division, 39 A.D.2d 168, 332 N.Y.S.2d 723, should be affirmed. The exclusion of managerial personnel from collective bargaining rights has long been permitted by statute and decisional law affecting private employment. The need to have a responsible cadre of management personnel to formulate policy and to handle labor relations is equally applicable to the State in its capacity as an employer. The statutory criteria which govern designation of managerial personnel are sufficiently clear to withstand constitutional attack.

In 1971, the Civil Service Law was amended to provide for designation of certain public employees as 'managerial' and 'confidential' employees who may not be members of or hold office in any organization which represents, or seeks to represent public employees (L.1971, ch. 503, §§ 4, 16, ch. 504, § 1). Section 201 (subd. 7) of the Civil Service Law, as amended, provides: '(a) The term 'public employee' means any person holding a position by appointment or employment in the service of a public employer, except that such term shall not include * * * persons who may reasonably be designated from time to time as managerial or confidential upon application of the public employer * * * Employees may be designated as managerial only if they are persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment. Employees may be designated as confidential only if they are persons who assist and act in a confidential capacity to managerial employees described in clause (ii).' Section 214 of the Civil Service Law, added in 1971, provides: 'No managerial or confidential employee, as determined pursuant to subdivision seven of section two hundred one of this article, shall hold office in or be a member of any employee organization which is or seeks to become pursuant to this article the certified or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.'

Plaintiffs Shelofsky, Nickerson, and Wagner are State employees and members of the Civil Service Employees Association, a certified representative of State employees of the Executive Branch. Shelofsky is an Unemployment Insurance Accounts Assistant Supervisor in the Department of Labor and has been a member of the association since 1945. He maintains convertible term life insurance, and accident and health insurance through the association. Wagner is a Budget Analyst in the Department of Audit and Control and has been a member of the association since 1965. He is president of the Capital District Conference of the association. Nickerson is a Senior Stenographer in the Department of Social Services and is also an officer of the association. She maintains $5,500 of convertible term life insurance through the association.

In September, 1971, pursuant to section 201 (subd. 7) defendant Abe Lavine, the Director of Employee Relations, requested the designation of 7,600 employees, including plaintiffs Shelofsky, Nickerson, and Wagner, as 'managerial' or 'confidential'. In January, 1972, the board issued preliminary designations of managerial and confidential employees, giving interested parties 30 days to file objections. The board scheduled hearings to resolve factual disputes during the pendency of this litigation with final decisions being held in abeyance.

The exclusion of supervisory personnel from collective bargaining rights enjoyed by employees is not a new concept (see Rains, Collective Bargaining in the Public Sector and the Need for Exclusion of Supervisory Personnel, 23 Lab.L.J. 275). In 1947, the Taft-Hartley Act (Labor Management Relations Act) amended the National Labor Relations Act in part to exclude 'supervisors' from collective bargaining rights enjoyed by private employees generally (District 2, Mar. Engrs. Beneficial Assn. v. New York Shipping Assn., 22 N.Y.2d 809, 812, 292 N.Y.S.2d 908, 909, 239 N.E.2d 650, cert. den. 393 U.S. 960, 89 S.Ct. 397, 21 L.Ed.2d 373; Westinghouse Elec. Corp. v. N.L.R.B., 424 F.2d 1151, 1158 (7th Cir.), cert. den. 400 U.S. 831; see Warner Co. v. N.L.R.B., 365 F.2d 435, 437 (3d Cir.); Ann., Labor Relations Act--Supervisors, 40 A.L.R.2d 415). The Taft-Hartley Act was upheld against a constitutional attack almost identical to that urged here in National Labor Relations Bd. v. Budd Mfg. Co. (169 F.2d 571, 578 (6th Cir.), cert. den. 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441). In the Budd case, involving private employees, it was held the exclusion of supervisory personnel from collective bargaining rights did not infringe their First Amendment rights of freedom of assembly and was not an arbitrary classification violative of due process. The objective of...