State v. N.Y.S. Pub. Emp't Relations Bd.
| Decision Date | 21 May 2020 |
| Docket Number | 529832 |
| Citation | 124 N.Y.S.3d 424,183 A.D.3d 1172 |
| 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 |
Michael N. Volforte, Governor's Office of Employee Relations (Clay J. Lodovice of counsel), for petitioner.
David B. Quinn, Public Employment Relations Board, Albany (Ellen M. Mitchell of counsel), for New York State Public Employment Relations Board and another, respondents.
Gleason, Dunn, Walsh & O'Shea, Albany (Ronald G. Dunn of counsel), for Police Benevolent Association of New York State, Inc., respondent.
Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Reynolds Fitzgerald, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent Public Employment Relations Board finding that petitioner committed an improper employer practice.
Respondent Police Benevolent Association of New York State, Inc. (hereinafter PBA) is the exclusive bargaining representative for the Agency Police Services bargaining unit (hereinafter APSU), which includes, as pertinent here, petitioner's employees with police titles working for the New York State Office of Parks, Recreation and Historic Preservation. Various police titles are encompassed in APSU, such as park officers and sergeants. The PBA and petitioner entered into a collective bargaining agreement (hereinafter CBA) covering APSU members from April 2005 through March 2015.1 The CBA provided for a winter schedule and a summer schedule, which typically resulted in members working four 10–hour days with three days off in winter and five eight-hour days with two days off in summer. The CBA also contains various articles, which, as pertinent here, concern seniority and vacancies, changes to members' shifts, and grievance procedures.
In July 2012, petitioners and the PBA met to discuss the winter schedule for the 2012–2013 season. Petitioner proposed a new schedule, which would require Suffolk County park police sergeants to work 6:00 a.m. to 4:00 p.m. on the first two days of the week, and then 4:00 p.m. to 2:00 a.m. on the next two days. The PBA proposed an alternate schedule. Petitioner ultimately implemented the schedule it had originally proposed. In response, the PBA filed an improper practice charge with respondent Public Employment Relations Board (hereinafter PERB), alleging that petitioner violated Civil Service Law § 209–a (1)(a) and (d) by unilaterally implementing the winter schedule. The PBA claimed the schedule imposed a new term and condition on APSU members' employment and constituted a failure to negotiate in good faith over a mandatory subject of bargaining. Petitioner answered, arguing that the PBA had waived its right to bargain by agreeing to language in the CBA that expressly allowed petitioner to unilaterally set the schedule, and that petitioner had satisfied its duty to negotiate the schedule. Petitioner also argued that PERB lacked jurisdiction to hear this issue due to the CBA's grievance procedure.
An evidentiary hearing was held in June 2013 before an Administrative Law Judge (hereinafter ALJ), who found that petitioner had violated Civil Service Law § 209–a (1)(d), as there was a duty to negotiate the winter schedule, and ordered restoration of the prior schedule.2 The ALJ further found that the parties had engaged in the past practice of reaching an agreement on the schedule prior to its implementation, and that the record did not support the claim that the PBA had waived its right to negotiate the settling of the schedule or that petitioner had satisfied its duty to negotiate the schedule. Petitioner filed exceptions to the ALJ's findings. Upon review, PERB affirmed the ALJ's decision. Petitioner thereafter commenced this CPLR article 78 proceeding in Supreme Court, and the matter was transferred to this Court.
Petitioner first contends that PERB lacks jurisdiction over this dispute, as its subject – the settling of the schedules – is covered by the CBA, thus providing the PBA with a right enforceable through the CBA's grievance procedure. PERB and this Court have interpreted the Civil Service Law to deprive PERB of jurisdiction when the dispute between an employer and an employee organization is "essentially contractual" and when the agreement "provides the charging party with a reasonably arguable source of right with respect to the subject matter of the charge" ( Matter of City of New Rochelle v. New York State Pub. Empl. Relations Bd. , 101 A.D.3d 1438, 1440, 956 N.Y.S.2d 663 [2012] [internal quotation marks, emphasis and citations omitted], lv denied 21 N.Y.3d 857, 969 N.Y.S.2d 443, 991 N.E.2d 217 [2013] ; see Matter of Roma v. Ruffo, 92 N.Y.2d 489, 497, 683 N.Y.S.2d 145, 705 N.E.2d 1186 [1998] ; Matter of State of New York v. New York State Pub. Empl. Relations Bd., 176 A.D.3d 1460, 1462, 112 N.Y.S.3d 300 [2019] ; see also Civil Service Law § 205[5][d] ). "[A]n employer's breach of a CBA provision is remediable through contractual grievance procedures ..., while a charge that an employer has violated the statutory duty to bargain in good faith over a matter outside the terms of a CBA is a matter within PERB's jurisdiction" ( Matter of County of Erie v. State of New York, 14 A.D.3d 14, 16, 785 N.Y.S.2d 130 [2004] ; see Matter of Roma v. Ruffo, 92 N.Y.2d at 494–495, 683 N.Y.S.2d 145, 705 N.E.2d 1186).
Here, petitioner asserts that articles 15 and 24 of the CBA preclude PERB from hearing the dispute. Article 15 is entitled "Shift Changes," and section 15.3 states, as pertinent here, that "[n]o employee shall have his [or her] shift schedule changed for the purposes of avoiding the payment of overtime." Similarly, article 24 is entitled "Seniority," and section 24.3 provides that "[t]he agency shall have the right to make any job and shift assignment necessary to maintain the services of the agency involved." We do not agree with petitioner's assertion that these articles provide the PBA with a reasonably arguable source of right or a contractual remedy to challenge petitioner's unilateral decision to set the schedule (see Matter of County of Saratoga v. New York State Pub. Empl. Relations Bd., 21 A.D.3d 1160, 1163, 802 N.Y.S.2d 257 [2005] ). Section 15.3 clearly prohibits shift schedule changes as a mechanism to avoid the payment of overtime, while section 24.3, read in context, provides for the changing of schedules in the event of a vacancy. None of the provisions grants petitioner the ability to unilaterally change shift schedules when the seasons change. As the dispute centered on matters outside of the CBA, we find that "PERB's jurisdictional limitation was not triggered" ( Matter of State of New York v. New York State Pub. Empl. Relations Bd., 176 A.D.3d at 1462, 112 N.Y.S.3d 300 [internal quotation marks and citations omitted] ).
Petitioner next contends that certain determinations made by PERB are not supported by substantial evidence, as required (see Matter of Town of Islip v. New York State Pub. Empl. Relations Bd., 23 N.Y.3d 482, 492, 991 N.Y.S.2d 583, 15 N.E.3d 338 [2014] ; Matter of Spence v. New York State Dept. of Transp., 167 A.D.3d 1188, 1190, 90 N.Y.S.3d 337 [2018] ). Like the ALJ, PERB found that petitioner did not satisfy its duty to negotiate the schedule with the PBA, thus prohibiting petitioner from unilaterally implementing the schedule. As its primary evidence that it had satisfied its duty to negotiate, petitioner offered articles 15 and 24 of the CBA. However, as discussed above, these articles do not demonstrate that the PBA and petitioner "negotiated terms in [the CBA] that are reasonably clear on the specific subject at issue" (Matter of Kent v. Lefkowitz, 27 N.Y.3d 499, 505, 35 N.Y.S.3d 278, 54 N.E.3d 1149 [2016] [internal quotation marks and citation omitted] ); rather, these provisions merely address schedule changes in specific circumstances. Reading these articles "as a whole," they do not indicate that the parties "reached an accord" on the subject of the setting of the schedules for each season, thus allowing petitioner to unilaterally implement the schedule ( id. at 506–507, 35 N.Y.S.3d 278, 54 N.E.3d 1149 [internal quotation marks omitted] ). As such, substantial evidence supports PERB's determination that petitioner did not satisfy its duty.
As to PERB's determination that the PBA did not waive its rights to negotiate the setting of the schedule, the CBA, including sections 15.3 and 24.3, does not include a waiver that is "clear, unmistakable and without ambiguity," which would reveal an intent by the PBA to relinquish its right to negotiate the schedules (Matter of Chenango Forks Cent. School Dist. v. New York State Pub. Empl. Relations Bd., 95 A.D.3d 1479, 1484, 944 N.Y.S.2d 665 [2012] [internal quotation marks and citations omitted], affd 21 N.Y.3d 255, 970 N.Y.S.2d 900, 993 N.E.2d 386 [2013] ; see City of New York v. State of New York, 40 N.Y.2d 659, 669, 389 N.Y.S.2d 332, 357 N.E.2d 988 [1976] ; Matter of Civil Service Empls. Assn. v. Newman, 88 A.D.2d 685, 686, 450 N.Y.S.2d 901 [1982], lv denied 57 N.Y.2d 775 [1982] ). Accordingly, substantial evidence supports PERB's determination (see Matter of Chenango Forks Cent. School Dist. v. New York State Pub. Empl. Relations Bd., 95 A.D.3d at 1484–1485, 944 N.Y.S.2d 665 ).
Petitioner further challenges PERB's determination that there was an established past practice, whereby the parties would reach an agreement on the schedule prior to its implementation; petitioner asserts that this finding was not supported by substantial evidence. "[A] binding past practice is established where the practice was unequivocal and was continued uninterrupted for a period of time sufficient under...
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