Webster Cent. School Dist. v. Public Employment Relations Bd. of State of N.Y.

• Decision Date: 01 May 1990
• Citation: 75 N.Y.2d 619,554 N.E.2d 886,555 N.Y.S.2d 245
• Parties: , 554 N.E.2d 886, 60 Ed. Law Rep. 900 In the Matter of WEBSTER CENTRAL SCHOOL DISTRICT et al., Appellants, v. PUBLIC EMPLOYMENT RELATIONS BOARD OF THE STATE OF NEW YORK et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 245

555 N.Y.S.2d 245

75 N.Y.2d 619, 554 N.E.2d 886, 60 Ed.

Law Rep. 900

In the Matter of WEBSTER CENTRAL SCHOOL DISTRICT et al., Appellants, v. PUBLIC EMPLOYMENT RELATIONS BOARD OF THE STATE OF NEW YORK et al., Respondents.

Court of Appeals of New York.

May 1, 1990.

[75 N.Y.2d 620] [554 N.E.2d 887] Dennis T. Barrett, Daniel R. Mooney and Richard A. Dollinger, Rochester, for Webster Cent. School Dist. and others, appellants.

Matthew R. Fletcher, Cayuga, for Bd. of Co-op. Educational Services, First Supervisory Dist. of Monroe County, appellant.

[75 N.Y.2d 621] Sandra M. Nathan and John M. Crotty, for Public Employment Relations Bd. of State of N.Y., respondent.

[75 N.Y.2d 622] Kevin H. Harren and Bernard F. Ashe, Albany, for Gail Larson and others, respondents.

Robert E. Diaz and Robert Wright, Albany, for Com'r of [75 N.Y.2d 623] Educ., amicus curiae.

James P. Burns, III, Syracuse, for Cent. New York BOCES Consortium, amicus curiae.

Norman H. Gross, Albany, and Henry F. Sobota, Latham, for The New York State School Boards Ass'n, amicus curiae.

Warren H. Richmond, Northport, for the Metro Area Boards of Co-op. Educational Services, amicus curiae.

[75 N.Y.2d 624] Melvin H. Osterman, Jr. and Heather D. Diddel, Albany, for the Capital District Boards of Co-op. Educational Services, amicus curiae.

OPINION OF THE COURT

KAYE, Judge.

In the statute permitting a Board of Cooperative Educational Services (BOCES) to offer academic summer school programs (Education Law § 1950[4][bb], the Legislature clearly manifested its intention that school districts' decisions to participate in such cooperative educational programs not be subject to mandatory collective bargaining with teachers' unions. We therefore grant the school districts' petition to nullify PERB's determination requiring that the decisions be bargained.

BOCES was established some 40 years ago to provide added services, on a cooperative basis, for combined school districts (see, L.1948, ch. 861, § 1). Today, several BOCES exist throughout the State, each made up of varying numbers of school districts, with their own governing boards (drawn from the component school districts), revenues (principally derived from participating districts), and teaching staff (see generally, Education Law § 1950). While the Monroe BOCES, for example, had over the years furnished many services for appellant school districts--particularly services that were not part of their traditional school curriculum--before 1984 it had no statutory authority to offer them academic programs.

In 1984, as part of a major reform intended to upgrade the quality of education in this State, the Legislature amended the Education Law to permit BOCES to "provide academic and other programs and services in the school year on a cooperative basis, including summer programs and services." (Education Law § 1950[4][bb].) Along with increased requirements for high school graduation, the reform envisioned expanded cooperative use of school resources, including BOCES, both by allowing BOCES to offer credit-bearing academic courses and by providing State reimbursements to school districts for participation in BOCES programs (see, New York State Board of Regents, Action Plan to Improve Elementary and Secondary Education Results in New York, at 47-48 [1984].

Prior to the 1984 amendment, the three appellant school districts had each year conducted separate summer school programs, employing teachers who were (or became) members of the bargaining units represented by respondent teachers unions. The collective bargaining agreements between the school districts and the unions in fact covered summer teaching, and provided for summer school workday, salary, sick leave, pay dates and hiring preferences.

Early in 1985, however, spurred by the new legislation, appellants outlined their summer school curriculum requirements to the Monroe BOCES, and it undertook to satisfy them, offering a combined program for students of the three districts. Each district, with the approval of the Commissioner of Education, then elected to accept the BOCES program in place of its own, and entered into a written agreement which provided for the payment of fees for each enrollee; unlike the district's own summer programs, partial State reimbursement was available for fees paid to BOCES. The BOCES courses were all part of the standard secondary school curriculum, but the cooperative program offered a far wider selection than any of the districts had offered in previous years, to a greatly increased number of students. (The districts individually had chosen not to offer courses with fewer than 12 students.)

While refusing to negotiate their decision with respondent unions, appellants offered to bargain the impact of the decision, but the unions refused and filed improper practice charges with PERB. Following several days of testimony, the PERB Administrative Law Judge held that each of the districts had violated Civil Service Law § 209-a(1)(d) by unilaterally contracting-out the work exclusively performed by bargaining unit teachers and refusing to negotiate that decision. PERB consolidated the three cases and, on review, agreed with the Administrative Law Judge that the districts were subcontracting work they otherwise would have performed themselves, which was a mandatory subject of negotiation where the decision turned on a reduction of labor costs rather than a change in level of service; PERB therefore ordered the districts to cease and desist from such practices, together with other relief. The present article 78 proceeding ensued, culminating in the Appellate Division's confirmation of PERB's determination and dismissal of the petition, without opinion. 147 A.D.2d 988, 538 N.Y.S.2d 885. We now reverse and grant the school districts' petition.

The underlying legal issue before us is whether the employers' decision to contract with BOCES for an academic summer school program in place of their own was a mandatory subject of negotiation (as the unions urge), or a prohibited or permissive bargaining subject (as the school districts contend) (see, Matter of Board of Educ. v. New York State Pub. Employment Relations Bd., 75 N.Y.2d 660, 555 N.Y.S.2d 659, 554 N.E.2d 1247 [decided today].

In approaching this issue, we are mindful of the limited scope of our review as to matters within PERB's expertise under the Civil Service Law (see, Civil Service Law § 209). However, statutory...