Opinion
7926-07.
Decided January 18, 2008.
Michael A. Cardozo, Corporation Counsel of the City of New York, Attorneys for Petitioner, Michele A. Molfetta, Esq., of counsel, New York, New York.
New York State Public Employment Relations Board, David P. Quinn, Esq., of counsel, Albany, New York.
Gleason, Dunn, Walsh O'Shea, Attorneys for Respondent Patrolmen's Benevolent Association, Ronald G. Dunn, Esq., Albany, New York.
In this CPLR Article 78 proceeding, petitioner asserts that a decision and order of Respondent New York State Public Employment Relations Board (PERB), dated August 29, 2007 should be annulled in part, insofar as it held that the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA)'s Premium Pay Proposal is a mandatory subject of bargaining. Respondents oppose the petition.
On July 7, 2006, petitioner filed with PERB a Declaration of Impasse in its negotiations with PBA. A mediator was subsequently appointed and mediation sessions were conducted. On October 24, 2006, petitioner filed a Petition for Interest Arbitration and PBA filed a response, which contained several proposals.
On December 6, 2006, petitioner filed a petition for a declaratory ruling on the scope of negotiations, which sought a determination regarding which PBA proposals are mandatory subjects of collective bargaining. One of the proposals upon which petitioner sought a ruling was the PBA proposal for premium pay for lack of a negotiable disciplinary procedure, entitled "Premium for Lack of Negotiable Disciplinary Procedural Protections" (premium pay proposal), which is the issue in the present proceeding. Petitioner argued that the premium pay proposal was a non-mandatory subject of collective bargaining. The proposal states as follows:
The City will be obligated to pay annually a premium equal to 10% of salary at basic maximum to each officer in recognition of the fact that PBA members are employed in a jurisdiction in which the Courts have found that the power to limit fundamental disciplinary procedural protections rests entirely with the Police Commissioner. The premium shall be considered wage compensation and as a part of base salary for purposes of the calculation of both overtime and night shift differential, and shall increase on in the same percentage as all future wage increases.
PBA argued that the premium pay proposal was a mandatory subject of collective bargaining.
On May 3, 2007, the administrative law judge (ALJ), upon the record in lieu of a hearing, issued a decision, which in relevant part, held that the premium pay proposal was a mandatory subject of collective bargaining, which would therefore be submitted to interest arbitration. The decision held in relevant part as follows:
I find the demand to be a mandatory subject of bargaining. In City of Fulton, the Board affirmed an ALJ decision finding that a demand seeking premium pay is staffing was not maintained at a certain level is mandatory. The Board, at 3025, stated:
Although the Association's demand would create an economic disincentive for the City to staff at levels below those specified in the demand, that does not convert the nature of the demand for one seeking only compensation for services rendered to one establishing a minimum staffing level. . . . The reasonableness of any demand is for resolution by the parties in negotiations or through the statutory impasse procedures,. . . .
The City asserts that the PBA is seeking payment for work for services not provided and, in reliance upon Patrolmen's Benevolent Association v. Public Employment Relations Board, argues that the demand violates the clear expression of legislative intent to foreclose bargaining the subject of discipline, and in effect seeks to have the City pay for a right which it already possesses. Regardless of the merit of the proposal, it is still a proposal related to wages. As in Fulton, even though the rationale for the wage demand is based upon the existence and exercise of a management right, the nature of the demand is nevertheless one for compensation. As such, it is a mandatory subject of bargaining.
On May 21, 2007, petitioner took exception to the ALJ's decision related to the premium pay proposal, in addition to another portion of the decision not relevant to this proceeding. The PBA also filed exceptions to the decision and opposed petitioner's exceptions.
On August 29, 2007, PERB issued a Board Decision and Order (PERB Decision) which, in relevant part, affirmed the ALJ's finding that the premium pay proposal is a mandatory subject of collective bargaining. The PERB Decision held in relevant part as follows:
The ALJ determined that the demand was a mandatory subject of bargaining because the essential nature of the demand is for increased compensation. Relying on the Board's decision in Fulton Fire Fighters Association, Local 3063, IAFF, the ALJ concluded that the proposal was mandatory. We agree.
Contrary to the City's exceptions, the proposal does not seek increased compensation as a penalty for when work is not performed. Rather, it would provide compensation that is directly related to the working conditions of the PBA membership.
Finally, we reject the City's assertion that the proposal is a prohibited subject of bargaining based on the holding in Patrolmen's Benevolent Association v New York State Public Employment Relations Board. In that case, the Court of Appeals ruled that the City's police disciplinary procedure was a prohibited subject. The Court's decision cannot be reasonably interpreted to prohibit negotiations regarding a proposal for an increase in the level of compensation for PBA members in consideration for the impact of the City's unilateral right to set disciplinary procedures.
In the present proceeding, petitioner challenges the PERB Decision to the extent that it held that the premium pay proposal was not a prohibited subject of bargaining and was a mandatory subject of collective bargaining. Petitioner acknowledges that terms and conditions of employment, such as salaries, are mandatory subjects of bargaining. Petitioner argues that not all demands concerning compensation are mandatory subjects of bargaining however. Petitioner contends that the premium pay proposal is not related to hazards or circumstances of employment and that PERB's Decision is contrary to public policy and legislative intent underlying statutes that remove police discipline from bargaining. Petitioner argues that the premium pay proposal should be held to be a prohibited subject of bargaining because it seeks "to compel payment for the exercise of rights that are themselves a prohibited subject of bargaining". On these grounds, petitioner asserts that PERB's Decision as related to the premium pay proposal was not rationally based, was affected by an error of law, was arbitrary and capricious and/or was an abuse of discretion.
PERB's answer to the petition sets forth that the decision and order of PERB, dated August 29, 2007, affirmed the ALJ's decision in relevant part, set forth the basis upon which it was made, and had a reasonable basis in law and was not arbitrary, capricious or an abuse of discretion. In opposition to the petition, PERB contends that the petition disputes the merits of the premium pay proposal, which is unrelated to the negotiability of the proposal. Regarding petitioner's argument that the premium pay proposal does not related to work performed, PERB first notes that a demand for wage increases related to factors outside the workplace, such as cost of living, comparable wages in other communities, and the employer's ability to pay can be mandatorily negotiable. Next, PERB argues that the proposal is related to work performed, specifically for work performed under conditions over which petitioner has no control. PERB contends that it properly concluded that the proposal was for compensation, to which a bargaining obligation arises under the Taylor Law, and in the absence of a statutory directive otherwise, its decision was permissible and entitled to this Court's deference.
The PBA opposes the petition and set forth three affirmative defenses in its answer, asserting that the premium pay proposal is a mandatory subject of bargaining, demands wages and concerns working conditions, and that the PERB Decision was rational and should be accorded deference. The PBA notes petitioner's argument that the rationale of the proposal should render it a non-mandatory subject of bargaining and argues that the nature of a wage demand, and whether it has an effect on the exercise of a management right, does not effect its negotiability.
The PBA disputes petitioner's claim and reliance on case law where a demand was for wages for work not performed. The PBA contends that the proposal at issue is analogous to premium pay sought where staffing levels fall below a certain level. Regarding petitioner's reliance on the prohibition against negotiating disciplinary procedure, the PBA notes that the premium pay proposal does not affect discipline and does not seek to compel negotiations regarding discipline. The PBA asserts that the PERB Decision was rational, consistent with established law and should be affirmed.
Petitioner submits a reply memorandum of law and first argues that the PERB Decision is not entitled to deference because it involves statutory interpretation and that the PBA has packaged the proposal as a wage demand to circumvent local statutes and a Court of Appeals decision which hold that police discipline is a prohibited subject of bargaining. Petitioner argues that respondents' arguments are oversimplified and ignore the effect that the premium pay proposal will have on a prohibited subject of bargaining. Next, petitioner argues that PERB's Decision is contrary to law and its own precedent which hold that wage demands which are unrelated to work performed or are a penalty exercised against a managerial right, which is not a mandatory subject for bargaining and is not related to compensation, is a non-mandatory subject of bargaining. Petitioner contends that PERB's Decision was irrational, arbitrary and capricious or was an abuse of discretion because the premium pay proposal seeks payment for the exercise of rights which are a prohibited subject of bargaining, thereby making the proposal a prohibited subject of bargaining.
It is well established that when a court is reviewing an administrative determination, it "may not substitute its judgment for that of the agency making the determination but must determine whether the agency's decision has a rational basis and is not arbitrary and capricious" ( Plante v New York State Dept. of Environmental Conservation, 277 AD2d 639, 641 [3d Dept 2000]; see also Arrocha v Bd. of Educ., 93 NY2d 361, 363-64; Pell v Bd. of Educ., 34 NY2d 222). "An administrative action is arbitrary and capricious when it is without a sound basis in reason and without regard to the facts" ( Clausen v New York State Dept. of Health, 232 AD2d 917, 918 [3d Dept 1996] [citing Pell]). "Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard" ( Pell, 34 NY2d at 231).
When the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference.
( Flacke v Onondaga Landfill Systems, Inc., 69 NY2d 355, 363; see also City of Rensselaer v Duncan, 266 AD2d 657, 659 [3d Dept 1999]; Regional Action Group for Environment, Inc. v Zagata, 245 AD2d 798, 800 [3d Dept 1997]). The court is required to defer to the agency regarding the construction of statutes and regulations that the agency administers, as long as that construction is not irrational or unreasonable ( Metropolitan Associates, Ltd. Partnership v New York State Div. of Housing Community Renewal, 206 AD2d 251 [1st Dept 1994]).
It is well established that PERB determinations are to be accorded deference for matters within its area of expertise ( see Schenectady PBA v NYS PERB, 85 NY2d 480, 485; Uniform Firefighters of Cohoes v Cuevas, 276 AD2d 184, 188 [3d Dept 2000] [citing Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 666]). Specifically, when there is a question as to the issue of prohibited or mandatory subjects of bargaining, the courts have only a limited review power ( see, Board of Educ. of the City Sch. Dist. of the City of New York v NYS PERB, 75 NY2d 660, 666).
Unless a matter turns on a pure question of statutory interpretation, an issue as to whether a bargaining proposal involves a "term and condition" of employment, which renders it a mandatory subject of collective bargaining under the Taylor Law, is committed to PERB's sound discretion.
( Uniform Firefighters, 276 AD2d at 188 [citations omitted]).
For, "[s]o long as PERB's interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation" (citation omitted). As the agency charged with implementing the fundamental policies of the Taylor Law, the board is presumed to have developed an expertise and judgment that requires us to accept its construction if not unreasonable.
( Incorporated Village of Lynbrook v NYS PERB, 48 NY2d 398, 404-05).
It is undisputed that wages are a mandatory subject of negotiation under the Taylor Law ( see Civil Service Law §§ 201, 204). The Court of Appeals has recognized that the obligation to bargain terms and conditions of employment under the Taylor Law is subject to exceptions, including exceptions for public policy reasons ( Board of Educ. of the City Sch. Dist. of the City of New York v NYS PERB, 75 NY2d at 667-68). "[A] public policy strong enough to require prohibition would almost invariably involv[e] an important constitutional or statutory duty or responsibility'" ( Id. [quoting Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898, 899]).
It is unquestioned that the bargaining mandate may be circumscribed by "plain" and "clear" legislative intent or by statutory provisions indicating the Legislature's "inescapably implicit" design to do so."
( Schenectady PBA v NYS PERB, 85 NY2d at 486).
The parties do not dispute that police officer discipline is a prohibited subject of bargaining pursuant to Patrolmen's Benevolent Association v New York State Public Employment Relations Board, 6 NY3d 563 (2006).
[P]olice discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials.
( Id. at 570). Local laws in the City of New York provide for control of police discipline by local officials ( Id.). The parties dispute whether the holding in that case has an effect on the negotiability of the premium pay proposal in the present case.
Regarding the standard of review, the Court finds that the PERB Decision is entitled to deference because it is based upon an issue as to whether a bargaining proposal involves a "term and condition" of employment, which would render it a mandatory subject of collective bargaining ( Patrolmen's Benevolent Association v New York State Public Employment Relations Board, 6 NY3d at 575 [noting that "the application of the Taylor Law to particular facts [is] an area in which PERB is entitled to deference"]; Incorporated Village of Lynbrook v NYS PERB, 48 NY2d at 404-05; Uniform Firefighters, 276 AD2d at 188). The Court has considered petitioner's argument that statutory interpretation, other than the Taylor Law, is at issue in the present case, and that therefore the PERB Decision is not entitled to deference, but finds that such argument is without merit. While statutory interpretation was discussed in Patrolmen's Benevolent Association v New York State Public Employment Relations Board, concluding that police discipline is not subject to collective bargaining, this is not an issue in dispute and PERB was not required to interpret those same statutes in the present case in order to determine the negotiability of the premium pay proposal. Additionally, to the extent petitioner argues that the premium pay proposal is a prohibited subject of bargaining, and prohibited subjects of bargaining are defined by the Legislature and the Courts, and on that basis the PERB Decision is not properly accorded deference, the Court finds that this argument goes to the heart of the main issue in dispute in this proceeding, which is addressed below.
Noting the limited review standard, the Court finds that PERB's conclusion that the premium pay proposal is a mandatory subject for bargaining is not unreasonable, irrational or contrary to past precedent. The Court notes that the proposal seeks wages related to an issue which is a prohibited subject of bargaining, but does not agree with petitioner that the proposal itself is therefore properly deemed a prohibited subject of bargaining ( see, e.g., West Irondequoit Teachers Assoc. v Helsby, 35 NY2d 46, 51). While there is recognized legislative intent to preclude negotiations regarding police disciplinary procedures, there is no preclusion of negotiations regarding compensation such as that in the premium pay proposal ( Patrolmen's Benevolent Association v New York State Public Employment Relations Board, 6 NY3d 563).
The Court finds PERB's reliance on its past precedent, including In re City of Fulton, 30 PERB 3012 (1997) to be reasonable. In City of Fulton, a proposal sought compensation which was tied to staffing level, specifically for extra pay when staffing levels fell below a certain number. PERB did not concur with the City of Fulton's argument that the proposal was nonmandatory because it was for a minimum staffing level. PERB reasoned that the proposal was not for a certain staffing level, but in fact for a rate of compensation which corresponded to the staffing level. The Court finds that this past precedent was appropriately relied upon by PERB as analogous to the premium pay proposal in the present case.
While noting petitioner's argument that the premium pay proposal does not concern an increase in wages related to working conditions or for work performed, the Court finds that the PERB's conclusion that the premium pay proposal concerns compensation related to working conditions has a reasonable basis and is entitled to this Court's deference. PERB concluded that the premium pay proposal was "a proposal for an increase in the level of compensation for PBA members in consideration for the impact of the City's unilateral right to set disciplinary procedures". The PERB Decision expressly considered petitioner's assertions that the proposal was unrelated to work performed and that Patrolmen's Benevolent Association v New York State Public Employment Relations Board mandated the conclusion that the premium pay proposal was a prohibited subject of bargaining. The Court concurs with PERB's argument in opposition to the petition in the present proceeding that while the petition may dispute the merits of the premium pay proposal, such a dispute is not relevant to consideration of the negotiability of the proposal.
In summary, the Court finds that PERB's Decision was legally permissible, reasonable and rational in concluding that the premium pay proposal constituted a mandatory subject of bargaining.
Accordingly, it is
ORDERED AND ADJUDGED, that the petition is dismissed.
This constitutes the Decision, Judgment and Order of the Court. All papers including this Decision, Judgment and Order are returned to the attorney for Respondent New York State Public Employment Relations Board. The signing of this Decision, Judgment and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.