Opinion
March 10, 1983
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Public Employment Relations Board which imposed a forfeiture of dues checkoff privileges for a period of one year upon the Ulster County Unit of the Ulster County Local 856, Civil Service Employees Association, Inc. The union which petitioner now represents as its president was charged with causing, instigating, encouraging, condoning and engaging in a strike against the County of Ulster in October, 1980, which occurred in the county's highway and infirmary departments. Following a hearing, the Public Employment Relations Board (PERB) determined that although the union had not called for or instigated the strike, once the strike had commenced the union had encouraged, participated in and condoned the strike. As a penalty, PERB imposed a forfeiture of dues checkoff privileges for a period of one year. Petitioner contends that PERB's determination is not supported by substantial evidence. In support of the argument, petitioner has directed our attention to certain evidence in the record and contends that this evidence leads to a conclusion contrary to that reached by PERB. Our review, however, is limited, for we may not weigh the evidence, but rather our inquiry is at an end if there is a rational basis in the record for the administrative agency's determination ( 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180-182). Although there is no direct proof that the union encouraged the strike, there is ample circumstantial evidence to provide a rational basis for PERB's determination. Virtually every officer, agent and representative of the union working in the two departments affected by the strike actively participated in the strike and were found by the county, pursuant to subdivision 2 of section 210 Civ. Serv. of the Civil Service Law, to have engaged illegally in a strike. None of these individuals, including the union's president, sought review of these findings. Petitioner relies heavily on the fact that the strike was not widespread as evidence that the union did not encourage its members to strike, pointing out that only some 200 of the 1,800 employees in the bargaining unit went out on strike. The record shows, however, that only 500 or so of these 1,800 employees were members of the union, and more than one half of the union membership was concentrated in the highway and infirmary departments, the only two departments affected by the strike. Petitioner also relies on the fact that the union's president at the time of the strike requested on several occasions that the strikers return to work. PERB found, however, that these statements were merely "pro forma" and were intended to obscure union involvement in the strike. Given the facts that the president remained silent when he first learned of the strike plans, that his requests came well after the strike had begun, that he himself did not order the strikers back to work, that he neither threatened nor took any internal disciplinary action against the striking employees, and that he was found to have engaged in the strike, there is ample support in the record for PERB's finding. It is apparent from the foregoing that PERB's determination is not based simply upon the fact that a strike occurred, and that there is a rational basis for its finding that the union encouraged, participated in and condoned the strike (see Matter of Police Benevolent Assn. of City of Yonkers v. New York State Public Employment Relations Bd., 51 N.Y.2d 779). Next, petitioner contends that in assessing the strike penalty PERB erred when it considered the potential impact of the strike on the public health, safety and welfare of the community. Petitioner notes that the language of the statutory provision directing PERB to consider the impact of the strike on the public health, safety and welfare of the community does not contain the word "potential" and concludes, therefore, that PERB may consider only the actual impact. The statutory language, however, does not contain the word "actual" either, but more importantly, the statute directs PERB to consider "all the relevant facts and circumstances, including but not limited to * * * (ii) the impact of the strike on the public health, safety, and welfare of the community" (Civil Service Law, § 210, subd 3, par [f]; emphasis added). PERB's construction of the statute as authorizing it to consider, when relevant, the potential impact of the strike, as well as the actual impact, is not unreasonable and we must, therefore, accept it ( Matter of Incorporated Vil. of Lynbrook v. New York State Public Employment Relations Bd., 48 N.Y.2d 398, 404-405). Finally, petitioner contends that the penalty imposed by PERB was arbitrary and capricious, pointing to the penalties imposed by PERB in other cases. This court's review of administratively imposed penalties is limited to "whether such punishment is '"so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness"'" ( Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233). Thus, we must examine the facts and circumstances of this case, rather than compare the penalty herein to those meted out in other cases. The strike had a serious impact on the community, and the potential impact was even greater. No regular highway maintenance duties were performed during the period of the strike, and the infirmary was left grossly understaffed. Only a community volunteer effort allowed the infirmary to provide minimal services. Moreover, union officers and agents directly participated in the strike, even after restraining orders enjoining the strike had been served. Accordingly, it cannot be said that the forfeiture of dues checkoff privileges for one year is shocking to one's sense of fairness. Determination confirmed, and petition dismissed, without costs. Mahoney, P.J., Sweeney, Main, Casey and Levine, JJ., concur.