State v. N.Y.S. Pub. Emp't Relations Bd.

• Decision Date: 14 May 2020
• Docket Number: 528783
• Citation: 183 A.D.3d 1061,124 N.Y.S.3d 405
• Parties: In the Matter of STATE of New York, Petitioner, v. NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 1061

124 N.Y.S.3d 405

In the Matter of STATE of New York, Petitioner,

v.NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.

528783

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 26, 2020

Decided and Entered: May 14, 2020

Michael N. Volforte, Governor's Office of Employee Relations, Albany(Clay J. Lodovice of counsel), for petitioner.

David P. Quinn, Public Employment Relations Board, Albany, for New York State Public Employment Relations Board, respondent.

Daren J. Rylewicz, Civil Service Employees Association, Inc., Albany (Steven M. Klein of counsel), for Civil Service Employees Association, Local 1000, AF SCME, AFL-CIO, respondent.

Robin Roach, District Council 37, AFSCME, AFL-CIO, New York City (Erica C. Gray-Nelson of counsel), for District Council 37, AFSCME, AFLJ-CIO, Local 1359, respondent.

Lippes Mathias Wexler Friedman LLP, Albany (Erin N. Parker of counsel), for New York State Correctional Officers and Police Benevolent Association, Inc., respondent.

Before: Garry, P.J., Clark, Aarons, Pritzker and ReynoldsFitzgerald, JJ.

MEMORANDUM AND JUDGMENT

Aarons, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of respondent Public Employment Relations Board finding that petitioner committed an improper employer practice.

Petitioner is a public employer under Civil Service Law § 201(6)(a)(1). In 2009, the Department of Civil Service (hereinafter DCS) issued a bulletin stating that, as part of the 2008–2009 budget, a fee schedule had been created for the processing of applications for promotional and transitional examinations. For at least 10 years prior to the issuance of this bulletin, however, DCS did not require the payment of fees to process these applications. As such, respondent Civil Service Employees Association, Local 1000, AFSCME, AFL–CIO, respondent District Council 37, AFSME, AFL–CIO, Local 1359 and respondent New York State Correctional Officers and Police Benevolent Association, Inc. (hereinafter collectively referred to as respondents), the collective bargaining representatives for various employees, filed improper practice charges with respondent Public Employment Relations Board (hereinafter PERB) alleging that petitioner violated Civil Service Law § 209–a (1)(d). Following a hearing, an Administrative Law Judge determined that there was no violation, specifically concluding that, even assuming that the charging of fees was a subject of mandatory negotiation, the creation of the fee schedule was an exercise of DCS's discretion. On administrative appeal, PERB reversed, finding that respondents had a reasonable expectation of a past practice and remanded the matter for a determination on the issue of whether the creation of the fee schedule was a subject of mandatory negotiation. On remand, an Administrative Law Judge concluded that the practice of not charging a fee was an economic benefit and, therefore, was a subject of mandatory negotiation. PERB subsequently upheld this determination.

Petitioner commenced this CPLR article 78 proceeding seeking annulment of PERB's determinations. PERB joined issue and asserted a counterclaim seeking to enforce its remedial order. The proceeding was thereafter transferred to this Court.

Under the Taylor Law (see Civil Service Law § 200 et seq. ), a public employer is required to bargain in good faith with its employees regarding all terms and conditions of employment (see Matter of City of Watertown v. State of N.Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73, 78, 711 N.Y.S.2d 99, 733 N.E.2d 171 [2000] ; Matter of Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v. New York State Pub. Empl. Relations Bd., 175 A.D.3d 1703, 1704, 110 N.Y.S.3d 81 [2019] ). "The presumption in favor of bargaining may be overcome only in special circumstances where the legislative intent to remove the issue from mandatory bargaining is plain and clear" ( Matter of City of Watertown v. State of N.Y. Pub. Empl. Relations Bd., 95 N.Y.2d at 78–79, 711 N.Y.S.2d 99, 733 N.E.2d 171 [internal quotation marks and citation omitted] ). Furthermore, a public employer violates the Taylor Law when it alters a past practice that impacts a mandatory subject of negotiation (see Matter of Aeneas McDonald Police Benevolent Assn. v. City of Geneva, 92 N.Y.2d 326, 331, 680 N.Y.S.2d 887, 703 N.E.2d 745 [1998] ; Matter of State of New York [Div. of Military & Naval Affairs] v. New York Pub. Empl. Relations Bd., 187 A.D.2d 78, 82, 592 N.Y.S.2d 847 [1993] ). "Whether a past practice exists depends on whether it was unequivocal and was continued uninterrupted for a period of time under the circumstances to create a reasonable expectation among the affected unit employees that the practice would continue" ( Matter of Spence v. New York State Dept. of Transp., 167 A.D.3d 1188, 1189–1190, 90 N.Y.S.3d 337 [2018] [internal quotation marks and citation omitted] ). "Our review of a PERB determination is limited to whether it is supported by substantial evidence, that is, whether there is a basis in the record allowing for the conclusion that PERB's decision was legally permissible, rational and thus not arbitrary and capricious" ( Matter of DeOliveira v. New York State Pub. Empl. Relations Bd., 133 A.D.3d 1010, 1011, 19 N.Y.S.3d 627 [2015] [internal quotation marks and citations omitted]; see Matter of State of New York v. New York State Pub. Empl. Relations Bd., 176 A.D.3d 1460, 1463, 112 N.Y.S.3d 300 [2019] ; Matter of Albany Police Officers Union, Local 2841, Law Enforcement Officers Union Dist. Council 82, AFSCME, AFL–CIO v. New York Pub. Empl. Relations Bd., 149 A.D.3d 1236, 1238, 52 N.Y.S.3d 132 [2017] ).

We reject petitioner's assertion that the application fee was not a term and condition of employment. PERB found, and we agree, that the employees at issue received an economic benefit by not having to pay an application fee for promotional examinations (see Matter of Town of Islip v. New York State Pub. Empl. Relations Bd., 23 N.Y.3d 482, 491, 991 N.Y.S.2d 583, 15 N.E.3d 338 [2014] ; 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, 693–694, 444 N.Y.S.2d 226 [1981] ).¹ We are unpersuaded by petitioner's contention that, under Civil Service Law § 50(5), the creation of a fee schedule was a prohibited or permissive subject of bargaining. As PERB noted, this statute contains no express prohibition on the bargaining of application fees (see Matter of Board of Educ. of City School Dist. of City of N.Y. v. New York State...