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Sunday, March 3, 2013

Administrative agency’s failure to follow its own precedents in adjudicating the issue results in court remanding the matter to it for its further consideration

City of New Rochelle v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 08860, Appellate Division, Third Department
The City of New Rochelle and the Police Association of New Rochelle [PBA] entered into a stipulation of settlement to resolve the improper practice charge that the PBA had filed with PERB concerning “special duty details.” The stipulation set out the terms and conditions resolving the improper practice charge and included a provision that such "[a]greement and its subject matter [would] not be subject to the grievance and/or arbitration procedures contained in [the] collective bargaining agreement between [the City] and the [PBA], it would] be enforceable in a court of competent jurisdiction."
When the City entered into a written agreement with the New Rochelle Superior Officers' Association  [SOA] allowing sergeants and lieutenants to work special duty details, the PBA, claiming that special duty details had previously been performed exclusively by its members, filed another improper practice charge with PERB.
The City, contending that the improper practice charge had its genesis in a contractual dispute earlier resolved with the stipulation between the City and the PBA, argued that PERB lacked subject matter jurisdiction.
A PERB Administrative Law Judge found that PERB did have jurisdiction over the underlying charge and, further, that the City had engaged in an improper practice when it unilaterally transferred exclusive bargaining unit work to nonunit employees. PERB affirmed the ALJ's decision and the City file initiated a CPLR Article 78 action challenging PERB’s determination.
The Appellate Division, noting that the City, as a public employer, is required to negotiate in good faith with the PBA regarding the terms and conditions of its members' employment said that Civil Service Law §205(5)(d) “makes clear that PERB ‘shall not have authority to enforce an agreement between an employer and an employee organization and shall not exercise jurisdiction over an alleged violation of such an agreement that would not otherwise constitute an improper employer or employee organization practice,’ and an ‘agreement,’ for purposes of the statute, includes collective bargaining agreements.”
Further, said the court, “PERB "has consistently interpreted [Civil Service Law §205 (5)(d)] to deprive it of jurisdiction over failure-to-negotiate improper practice charges when the underlying disputes are essentially contractual, in favor of resolving the dispute through the parties' grievance-arbitration machinery, or resort to the courts."
PERB, however, had rejected the City’s jurisdictional defense based on its earlier stipulation of settlement with the PBA, holding that while the stipulation addressed the issue of eligibility for special duty details did not expressly speak to the issue of the exclusivity of such assignments being vested in PBA unit members.
The Appellate Division disagreed, holding that PERB's own prior decisions make it clear that "[a] jurisdictional issue can be raised . . . even if the agreement [at issue] does not address specifically the particular allegations of the improper practice charge if the agreement is a source of right to the charging party with respect to the subject matter of the charge."
Accordingly, said the court, it was satisfied that the stipulation of settlement provides "a reasonably arguable source of right with respect to the subject matter of the [underlying improper practice] charge" -- even in the absence of an express reference to the issue of exclusivity and thus "PERB erred in summarily dismissing the City's jurisdictional defense and reaching the merits of the dispute."
The Appellate Division annulled PERB’s determination and remitted the matter to it for its consideration of whether the improper practice charged should be summarily dismissed at this juncture or, alternatively, conditionally dismissed pending judicial resolution of the underlying contractual dispute.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2013/03/administrative-agencys-failure-to-follow-its-own-precedents-in-adjudicating-the-issue-results-in-court-remanding-the-matte.html

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