Town of Islip v. N.Y. State Pub. Emp't Relations Bd.

• Decision Date: 13 March 2013
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of TOWN OF ISLIP, petitioner, v. NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, et al., respondents.

104 A.D.3d 778

961 N.Y.S.2d 264

2013 N.Y. Slip Op. 01562

In the Matter of TOWN OF ISLIP, petitioner,

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

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

March 13, 2013.

Bond, Schoeneck & King, PLLC, Garden City, N.Y. (Ernest R. Stolzer and Hilary Moreira of counsel), for petitioner.

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

Koehler & Isaacs, LLP, New York, N.Y. (Liam L. Castro of counsel), for respondent United Public Service Employees Union.

Archer, Byington, Glennon & Levine, LLP, Melville, N.Y. (Robert T. McGovern of counsel), for respondent Local 237, International Brotherhood of Teamsters.

PETER B. SKELOS, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Public Employment Relations Board dated May 27, 2011, which affirmed a decision of an administrative law judge dated March 1, 2010, finding, after a hearing, that an improper practice charge filed by Local 237, International Brotherhood of Teamsters and United Public Service Employees Union, alleging that the petitioner, Town of Islip, violated Civil Service Law § 209–a(1)(d) was established, and directingthe Town of Islip, inter alia, to “restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008,” and to “make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the vehicle assignments, if any, together with interest at the maximum legal rate,” and, in effect, cross petition by the New York State Public Employment Relations Board to enforce its order.

ADJUDGED that the determination is confirmed, the petition is denied, the proceeding is dismissed on the merits, the cross petition is granted, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the issuance of an order compelling compliance with this decision and judgment ( seeCivil Service Law § 213[c] ).

The Town of Islip Code of Ethics and Financial Disclosure Law provides, in part, that “[n]o officer or employee shall request or permit the use of Town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business” (Town Code of Town of Islip § 14–12). Since approximately 1990, the Town of Islip has had a written policy concerning the use of Town vehicles. The version of the policy in effect in 2007 stated that employees who “by nature of their positions are required to be on call twenty-four hours a day ... will be assigned the [permanent] use of a Town car.” Additionally, “[o]nly those employees who have written authorization from the Supervisor will be granted this privilege.” That policy also provided that “temporary” vehicle assignments for official use were available if requested by Department Heads and approved by the Supervisor.

For at least 15 years prior to 2007, the policy was frequently ignored with respect to assignments of Town vehicles for permanent use. Supervisory personnel permanently assigned Town vehicles to numerous employees who were not on call 24 hours a day. The employees were required to record the mileage of the vehicles assigned to them, and to file weekly reports. The cars were maintained by the Town and fueled at the Town's expense at Town facilities. For those employees who were not required to be on call 24 hours a day, a tax charge for the value of the vehicle assignment was deducted from their paychecks at the direction of the payroll office.

In late 2007, the Town and a union representing certain Town employees were negotiating two new collective bargaining agreements. At first, the parties negotiated over a Town proposal regarding employee use of Town vehicles, but the Town withdrew its proposal and argued that the permanent use of Town-owned vehicles was not a mandatory subject of collective bargaining. When negotiations were at an impasse in early 2008 on various issues, the Town Board passed a resolution limiting the assignment of “take-home” vehicles to elected officials, emergency responders, and employees who lacked a fixed work location. As a result of the Town's unilateral action, approximately 45 union member employees lost their assignments of Town vehicles for permanent use.

The two unions then representing the affected employees filed an improper practice charge with the New York State Public Employment Relations Board (hereinafter the PERB). They argued, inter alia, that the long-extant practice of assigning Town vehicles for permanent use to persons who did not qualify for them under the Town's written policy had given rise to a “past practice” as to an economic benefit. Any change in that practice, the unions asserted, was a “mandatory” subject of collective bargaining, and the Town's change in policy constituted an improper employment practice.

After a hearing, a PERB administrative law judge determined that the longstanding practice of assigning Town vehicles to employees for permanent use became a past practice regarding the terms and conditions of employment, notwithstanding that those permanent assignments were in conflict with the written policy then ostensibly in effect. Thus, the administrative law judge held, the Town had engaged in an improper practice by unilaterally taking away the vehicles. The administrative law judge directed the Town to restore the vehicles to the employees and compensate the employees for the period during which they were without the vehicles. The Town filed exceptions to the decision, and the PERB, in its final determination, affirmed the administrative law judge's decision.

The Town then commenced this proceeding pursuant to CPLR article 78 to review the PERB determination. The PERB, in effect, cross-petitioned to enforce the PERB determination. The Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).

Under the Taylor Law (Civil Service Law article 14), a public employer is obligated to negotiate in good faith with the bargaining representative of its current employees regarding the “terms and conditions of employment” (Civil Service Law § 204). The failure to negotiate in good faith is an improper employment practice ( seeCivil Service Law § 209–a[1] [d] ). “Pursuant to this duty to negotiate, where a past practice between a public employer and its current employees is established, involving a mandatory subject of negotiation, the Taylor Law would bar the employer from discontinuing that practice without prior negotiation” ( 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;see Matter of Chenango Forks Cent. School Dist. v. New York State Pub. Empl. Relations Bd., 95 A.D.3d 1479, 1480, 944 N.Y.S.2d 665). The PERB is authorized to determine disputes as to improper employment practices, and to take affirmative action to effectuate the policies of the Taylor Law ( seeCivil Service Law § 205[5][d] ). In determining what may constitute a past practice giving rise to a mandatory subject of negotiation, the...