Lawrence Union Free Sch. Dist. v. N.Y.S. Pub. Emp't Relations Bd.

200 A.D.3d 886

161 N.Y.S.3d 112

In the Matter of LAWRENCE UNION FREE SCHOOL DISTRICT, petitioner/cross respondent,

v.NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, respondent/cross petitioner, et al., respondent.

2018–03024

Index No. 3841/17

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

Argued—June 7, 2021

December 15, 2021

Minerva & D'Agostino, P.C. (Albert D'Agostino, Christopher G. Kirby, and Morgan, Lewis & Bockius LLP, New York, NY [David J. Butler and Bryan M. Killian pro hac vice], of counsel), for petitioner/cross respondent.

David P. Quinn, Albany, NY (Michael T. Fois of counsel), for respondent/cross petitioner.

Archer, Byington, Glennon & Levine LLP, Melville, NY (Alexandra J. Howell and Marty Glennon of counsel), for respondent International Brotherhood of Teamsters, City Employees Union, Local 237.

CHERYL E. CHAMBERS, J.P., VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Public Employment Relations Board dated November 6, 2017, and, in effect, cross petition by the New York State Public Employment Relations Board to enforce the determination. The determination, inter alia, reversed so much of a decision of an administrative law judge dated November 29, 2016, dismissing, after a hearing, the improper practice charge filed by Local 237, International Brotherhood of Teamsters and United Public Service Employees Union, alleging that the petitioner, Lawrence Union Free School District, inter alia, violated Civil Service Law § 209–a(1)(d) with respect to certain security aides, and directed the petitioner, among other things, to make whole those security aides.

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, Nassau County, for the issuance of an order compelling compliance with this decision and judgment (see Civil Service Law § 213[c] ).

The petitioner, Lawrence Union Free School District (hereinafter the district), and the respondent International Brotherhood of Teamsters, City Employees Union, Local 237 (hereinafter the union), were parties to a collective bargaining agreement whereby certain classes of employees employed by the district, including security aides, were represented by the union with respect to, among other things, salary and benefit negotiations. The security aides’ employment was terminated at the end of the 2015 school year, and the district thereafter contracted with nonparty Summit Security Service, Inc. (hereinafter Summit), to provide security services for the district. Shortly after the security aides were notified that their positions were terminated, the union submitted an improper practice charge to the respondent New York State Public Employment Relations Board (hereinafter PERB), asserting, among other things, that the district violated Civil Service Law § 209–a(1)(d) based on its alleged failure to negotiate in good faith with the union concerning the termination of the security aides’ employment and the transfer of the security aides’ work to Summit employees, who were nonunion employees.

At a hearing before an administrative law judge (hereinafter ALJ), the district stipulated that the exclusivity of the work performed by the security aides, the first element that must be established with respect to a violation based on the unilateral transfer of work, as articulated in Matter of Niagara Frontier Transp. Auth. (18 PERB ¶ 3083), would not be contested. After the hearing, in considering whether the services performed by Summit were substantially similar to those performed by the security aides, the ALJ found, inter alia, that "[a]part from the inherent similarity in duties aimed at generally protecting District premises, there is a significant difference in the level of services provided by Summit," and dismissed the improper practice charges related to the district's termination of the security aides’ employment. The union subsequently filed exceptions to the ALJ's decision, and PERB, in a determination dated November 6, 2017, inter alia, reversed the ALJ's decision in part, and remanded in part. PERB took note of the parties’ stipulation with respect to exclusivity of the work, but determined that the scope of this stipulation was ambiguous. PERB found that the stipulation meant, "at a minimum, that ‘property protection’ duties were exclusively performed by Security Aides," but that based on conflicting testimony, the stipulation was unclear as to whether "personal protection" work was done exclusively by the security aides. PERB then remanded the portion of the charge related to personal protection work to the ALJ. In reversing the ALJ in part, PERB determined that the transfer of the property protection work performed by security aides constituted a violation of Civil Service Law § 209–a(1)(d), and directed, inter alia, that this work be restored to the security aides.

The district then commenced this proceeding pursuant to CPLR article 78 to review PERB's determination on the ground that it was not supported by substantial evidence. PERB, in effect, cross-petitioned pursuant to Civil Service Law § 213 to enforce its determination. In an order dated March 8, 2018, the Supreme Court transferred the matter to this Court pursuant to CPLR 7804(g).

"Under the Taylor Law (Civil Service Law art 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 )" ( Matter of Town of Islip v. New York State Pub. Empl. Relations Bd., 104 A.D.3d 778, 780, 961 N.Y.S.2d 264, mod 23 N.Y.3d 482, 991 N.Y.S.2d 583, 15 N.E.3d 338 ). "The failure to negotiate in good faith is an improper employment practice" ( Matter of Town of Islip v. New York State Pub. Empl. Relations Bd., 104 A.D.3d at 780, 961 N.Y.S.2d 264 ; see Civil 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., Inc. v. City of Geneva, 92 N.Y.2d 326, 331, 680 N.Y.S.2d 887, 703 N.E.2d 745 ), and "PERB is authorized to determine disputes as to improper employment practices, and to take affirmative action to effectuate the policies of the Taylor Law" ( Matter of Town of Islip v. New York State Pub. Empl. Relations Bd., 104 A.D.3d at 781, 961 N.Y.S.2d 264 ; see Civil Service Law § 205[5][d] ).

In making a determination whether the unilateral transfer of unit work violates Civil Service Law § 209–a(1)(d), "the ... essential questions are whether the work ha[s] been performed by [the] unit employees exclusively and whether the reassigned tasks are substantially similar to those previously performed by unit employees" (Matter of Niagara Frontier Transp. Auth., 18 PERB ¶ 3083 [footnote omitted]; see Matter of State of N.Y. Dept. of Correctional Servs. v. Kinsella, 220 A.D.2d 19, 22, 642 N.Y.S.2d 720 ). "If both these [questions] are answered in the affirmative, the work transfer is deemed to be violative of Civil Service Law § 209–a(1)(d) unless the qualifications for the job at issue have changed significantly" ( Matter of State of N.Y. Dept. of Correctional Servs. v. Kinsella, 220 A.D.2d at 22, 642 N.Y.S.2d 720 ; see Matter of Niagara Frontier Transp. Auth., 18 PERB ¶ 3083). "If such...