State v. Public Employment Relations Bd.

• Decision Date: 05 July 1984
• Citation: 103 A.D.2d 876,477 N.Y.S.2d 899
• Parties: In the Matter of STATE of New York (Governor's Office of Employee Relations of the State of New York and State of New York Division of Military and Naval Affairs), Appellant, v. PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 899

477 N.Y.S.2d 899

103 A.D.2d 876

In the Matter of STATE of New York (Governor's Office of

Employee Relations of the State of New York and State of New York Division of Military and Naval Affairs), Appellant, v. PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

July 5, 1984.

Robert Abrams, Atty. Gen. (John Q. Driscoll, Asst. Atty. Gen., of counsel), for appellant.

Martin L. Barr, Albany, Jerome Thier, Albany, for respondent PERB.

Roemer & Featherstonhaugh, Albany (Pauline Rogers Kinsella, Albany, of counsel), for respondent CSEA.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered November 9, 1983 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Public Employment Relations Board ruling that civilian employees of the Division of Military and Naval affairs are public employees within the scope of the Taylor Law.

Following the denial of preliminary motions to dismiss the petition as premature and for leave to appeal that order to this court, Special Term dismissed the petition on the merits and the judgment entered thereon is being appealed here. We agree with Special Term that PERB's determination, holding that the subject employees were public employees and not in the organized militia and, therefore, are subject to the provisions of the Taylor Law, is not arbitrary and capricious.

In the first place, the Division of Military and Naval Affairs (DMNA) is a division of the Executive Department of the State (Executive Law, § 31, subd. 2), a public employer, for Taylor Law purposes (Civil Service Law, § 201, subd. 6, par. cl. ). Public employees are persons holding positions by appointment or employment in the service of a public employer (Civil Service Law, § 201, subd. 7, par. ). Patently, the subject employees fall within this definition and must be so considered, unless, as the State contends, they were excepted under the provisions of paragraph (a) of subdivision 7 of section 201 of the Civil Service Law, which specifically so provides for "persons holding positions by appointment or employment in the organized militia of the state". However, the organized militia is merely one part of DMNA. Subdivision 2 of section 190 of the Executive Law relevantly provides:

The division of military and naval affairs shall include the organized militia; the state reserve list; the state retired list; all offices, headquarters, units, forces, commands, arsenals, depots, armories, bureaus, agencies, bases, camps, ranges, and other military (including air) and naval...