| Matter of New York City Tr. Auth. v New York State Pub. Empl.Relations Bd. |
| 2010 NY Slip Op 08949 [78 AD3d 1184] |
| November 30, 2010 |
| Appellate Division, Second Department |
| In the Matter of New York City Transit Authority,Petitioner/Cross-Respondent, v New York State Public Employment Relations Board,Respondent/Cross-Petitioner, and Transit Workers Union, Local 100,Respondent. |
—[*1] David P. Quinn, Albany, N.Y., for respondent New York State Public Employment RelationsBoard. Cary Kane, LLP, New York, N.Y. (Larry Cary and Oriana Vigliotti of counsel), forrespondent Transport Workers Union of Greater New York, Local 100.
Proceeding pursuant to CPLR article 78 to review a determination of the New York StatePublic Employment Relations Board, dated June 16, 2009, which reversed a decision of anadministrative law judge dated August 15, 2007, dismissing, after a hearing, the improper laborpractice charge of the Transport Workers Union of Greater New York, Local 100, alleging thatthe petitioner violated Civil Service Law § 209-a (1) (d), and directed the petitioner, interalia, to make whole certain employees, and, in effect, cross petition by the New York StatePublic Employment Relations Board to enforce its order.
Adjudged that the determination is confirmed, the petition is denied, the proceeding isdismissed on the merits, and the cross petition is granted, with one bill of costs.
Judicial review of an administrative determination made after a hearing required by law, andat which evidence was taken, is limited to whether that determination is supported by substantialevidence (see Matter of Abraham v Cuevas, 41 AD3d 840 [2007]; Matter ofIncorporated Vil. of Lake Success v New York State Pub. Empl. Relations Bd., 41 AD3d599 [2007]; Matter of Superior Officers Assn. of Police Dept. of County of Nassau, Inc. vState of N.Y. Pub. Empl. Relations Bd., 23 AD3d 481, 482 [2005]). While the findings of anAdministrative Law Judge (hereinafter the ALJ) made after a hearing are entitled to deferenceupon review by an administrative board, the board is entitled to make its own findings providedthat they are supported by substantial evidence (see Matter of Simpson v Wolansky, 38NY2d 391, 394 [1975]; Matter of Rockville Ctr. Teachers Assn., NYSUT, AFT, AFL-CIO vNew York State Pub. Empl. Relations Bd., 281 AD2d 425 [2001]). "The courts may notweigh the evidence or reject the choice made by [an administrative agency] where the evidence isconflicting and room for choice exists" (Matter of Stork Rest. v Boland, 282 NY 256,267 [1940]; see Matter of Superior Officers Assn. of Police Dept. of County of [*2]Nassau, Inc. v State of N.Y. Pub. Empl. Relations Bd., 23AD3d at 482).
Here, substantial evidence supported the determination of the New York State PublicEmployment Relations Board (hereinafter PERB) that the New York City Transit Authority(hereinafter the NYCTA) violated Civil Service Law § 209-a (1) (d) by implementing newstandards (hereinafter the Standards) governing the off-duty secondary employment of NYCTAemployees in certain titles without negotiating with the Transport Workers Union of Greater NewYork, Local 100 (hereinafter the TWU), the collective bargaining representative of the employeesin those titles. "The Taylor Law [Civil Service Law § 200 et seq.] requires publicemployers to collectively bargain over 'terms and conditions of employment of the publicemployees' " (Matter of City of New York v Patrolmen's Benevolent Assn. of the City ofN.Y., Inc., 14 NY3d 46, 57 [2009], quoting Civil Service Law § 204 [2]), and thereexists a "presumption . . . that all terms and conditions of employment are subject tomandatory bargaining" which cannot easily be overcome (Matter of Patrolmen's BenevolentAssn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563, 572[2006] [internal quotation marks omitted]; see Matter of City of Watertown v State of N.Y.Pub. Empl. Relations Bd., 95 NY2d 73, 79 [2000]). Under the Taylor Law, an employer'srestriction on the use of nonworking time by employees is a term and condition of employmentand, in general, constitutes a mandatory subject of negotiations (see Matter of New YorkState Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO, Local 2841 [City ofAlbany], 42 PERB ¶ 3005 [2009]; Matter of Ulster County Sheriff's Empls. Assn.[Ulster County Sheriff], 27 PERB ¶ 3028 [1994]; Matter of City of Newburgh[Local 589, Int'l Assn. of Fire Fighters, AFL-CIO], 16 PERB ¶ 3030 [1983]).
In its answer to the TWU's improper practice charge, the NYCTA admitted that it had notnegotiated with the TWU before implementing the Standards, but raised the affirmative defensethat it had an absolute right to implement them because they directly promoted the safety of theriding public, the NYCTA's essential mission. "[C]ertain decisions of an employer, though notwithout impact upon its employees, may not be deemed mandatorily negotiable terms andconditions of employment[ ] . . . because they are inherently and fundamentallypolicy decisions relating to the primary mission of the public employer" (Matter of Board ofEduc. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75NY2d 660, 669 [1990]; see Matter of County of Erie v State of N.Y. Pub. Empl. RelationsBd., 12 NY3d 72, 78 [2009]). " 'If [a public employer] is faced with an objectivelydemonstrable need to act in furtherance of its mission, the employer may unilaterally imposework rules which are related to that need, but only to the extent that its action does notsignificantly or unnecessarily intrude on the protected interests of its employees' " (Matter ofLippman v Public Empl. Relations Bd., 296 AD2d 199, 209 [2002], quoting Matter ofCounty of Montgomery [Civil Serv. Empls. Assn.], 18 PERB ¶ 3077 [1985]; seeMatter of Niagara County Unit, Local 832, CSEA, Inc., Local 1000, AFSCME, AFL-CIO[County of Niagara (Mount View Health Facility)], 21 PERB ¶ 3014 [1988]). Here,there is substantial evidence in the record to support PERB's determination that the NYCTA didnot have an objectively demonstrable need for the new Standards to act in furtherance of itsmission which outweighed the impact of those Standards upon the employees to which theyapplied (see Matter of Lippman v Public Empl. Relations Bd., 296 AD2d at 209).
Contrary to the NYCTA's contention, PERB properly considered whether the NYCTA wasentitled to implement the Standards without negotiating with the TWU based upon the languageof a particular provision of a prior NYCTA "Policy/Instruction" addressing off-duty secondaryemployment. PERB's review of an ALJ's decision is limited to matters included in the originalcharge or developed at the formal hearing (see Matter of Civil Serv. Empls. Assn. v PublicEmpl. Relations Bd., 73 NY2d 796, 798 [1988]; Matter of New York State CorrectionalOfficers & Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 309 AD2d1118, 1120 [2003]). Here, the NYCTA raised an affirmative defense that its implementation ofthe Standards was in accordance with the prior Policy/Instruction, and the ALJ concluded that theNYCTA's implementation of the Standards met the criteria of the subject provision of the priorPolicy/Instruction. Accordingly, the "Policy/Instruction" was a matter raised during the formalhearing and PERB properly considered it. Moreover, to the extent, that PERB may haveinterpreted that provision in concluding that the NYCTA failed to satisfy the criteria set forththerein, PERB's interpretation was rational and reasonable (cf. Matter of County of Nassau[Nassau Community Coll.] v New York State Pub. Empl. Relations Bd., 76 NY2d 579,585-586 [1990]).[*3]
PERB's cross petition for enforcement of its remedialorder must be granted (see Civil Service Law § 205 [5] [d]; § 213 [a];Matter of Hampton Bays Union Free School Dist. v Public Empl. Relations Bd., 62AD3d 1066, 1069 [2009]).
The NYCTA's remaining contentions are without merit. Covello, J.P., Dickerson, Belen andLott, JJ., concur.