| Matter of Town of Islip v New York State Pub. Empl. RelationsBd. |
| 2013 NY Slip Op 01562 [104 AD3d 778] |
| March 13, 2013 |
| Appellate Division, Second Department |
| In the Matter of Town of Islip, Petitioner, v NewYork State Public Employment Relations Board et al.,Respondents. |
—[*1] David P. Quinn, Albany, N.Y., for respondent New York State Public Employment Relations Board. Koehler & Isaacs, LLP, New York, N.Y. (Liam L. Castro of counsel), for respondentUnited Public Service Employees Union. Archer, Byington, Glennon & Levine, LLP, Melville, N.Y. (Robert T. McGovern ofcounsel), for respondent Local 237, International Brotherhood of Teamsters.
Proceeding pursuant to CPLR article 78 to review a determination of the New YorkState Public Employment Relations Board dated May 27, 2011, which affirmed adecision of an administrative law judge dated March 1, 2010, finding, after a hearing,that an improper practice charge filed by Local 237, International Brotherhood ofTeamsters and United Public Service Employees Union, alleging that the petitioner,Town of Islip, violated Civil Service Law § 209-a (1) (d) was established, anddirecting the Town of Islip, inter alia, to "restore the vehicle assignments forcommutation between home and work to those unit members who enjoyed the benefitprior to April 4, 2008," and to "make whole unit employees for the extra expensesincurred as a result of the unilateral withdrawal of the vehicle assignments, if any,together with interest at the maximum legal rate," and, in effect, cross petition by theNew York State Public Employment Relations Board to enforce its order.
Adjudged that the determination is confirmed, the petition is denied, the proceedingis dismissed on the merits, the cross petition is granted, with costs, and the matter isremitted to the Supreme Court, Suffolk County, for the issuance of an order compellingcompliance with this decision and judgment (see Civil Service Law § 213[c]).
The Town of Islip Code of Ethics and Financial Disclosure Law provides, in part,that "[n]o officer or employee shall request or permit the use of Town-owned vehicles,equipment, material or property for personal convenience or profit, except when suchservices are available to the public generally or are provided as municipal policy for theuse of such officer or employee in the conduct of official business" (Code of Town ofIslip § 14-12). Since approximately 1990, [*2]theTown of Islip has had a written policy concerning the use of Town vehicles. The versionof the policy in effect in 2007 stated that employees who "by nature of their positions arerequired to be on call twenty-four hours a day . . . will be assigned the[permanent] use of a Town car." Additionally, "[o]nly those employees who have writtenauthorization from the Supervisor will be granted this privilege." That policy alsoprovided that "temporary" vehicle assignments for official use were available if requestedby Department Heads and approved by the Supervisor.
For at least 15 years prior to 2007, the policy was frequently ignored with respect toassignments of Town vehicles for permanent use. Supervisory personnel permanentlyassigned Town vehicles to numerous employees who were not on call 24 hours a day.The employees were required to record the mileage of the vehicles assigned to them, andto file weekly reports. The cars were maintained by the Town and fueled at the Town'sexpense at Town facilities. For those employees who were not required to be on call 24hours a day, a tax charge for the value of the vehicle assignment was deducted from theirpaychecks at the direction of the payroll office.
In late 2007, the Town and a union representing certain Town employees werenegotiating two new collective bargaining agreements. At first, the parties negotiatedover a Town proposal regarding employee use of Town vehicles, but the Town withdrewits proposal and argued that the permanent use of Town-owned vehicles was not amandatory subject of collective bargaining. When negotiations were at an impasse inearly 2008 on various issues, the Town Board passed a resolution limiting the assignmentof "take-home" vehicles to elected officials, emergency responders, and employees wholacked a fixed work location. As a result of the Town's unilateral action, approximately45 union member employees lost their assignments of Town vehicles for permanent use.
The two unions then representing the affected employees filed an improper practicecharge with the New York State Public Employment Relations Board (hereinafter thePERB). They argued, inter alia, that the long-extant practice of assigning Town vehiclesfor permanent use to persons who did not qualify for them under the Town's writtenpolicy had given rise to a "past practice" as to an economic benefit. Any change in thatpractice, the unions asserted, was a "mandatory" subject of collective bargaining, and theTown's change in policy constituted an improper employment practice.
After a hearing, a PERB administrative law judge determined that the longstandingpractice of assigning Town vehicles to employees for permanent use became a pastpractice regarding the terms and conditions of employment, notwithstanding that thosepermanent assignments were in conflict with the written policy then ostensibly in effect.Thus, the administrative law judge held, the Town had engaged in an improper practiceby unilaterally taking away the vehicles. The administrative law judge directed the Townto restore the vehicles to the employees and compensate the employees for the periodduring which they were without the vehicles. The Town filed exceptions to the decision,and the PERB, in its final determination, affirmed the administrative law judge'sdecision.
The Town then commenced this proceeding pursuant to CPLR article 78 to reviewthe PERB determination. The PERB, in effect, cross-petitioned to enforce the PERBdetermination. The Supreme Court transferred the proceeding to this Court pursuant toCPLR 7804 (g).
Under the Taylor Law (Civil Service Law art 14), a public employer is obligated tonegotiate in good faith with the bargaining representative of its current employeesregarding the "terms and conditions of employment" (Civil Service Law § 204).The failure to negotiate in good faith is an improper employment practice (seeCivil Service Law § 209-a [1] [d]). "Pursuant to this duty to negotiate, where apast practice between a public employer and its current employees is established,involving a mandatory subject of negotiation, the Taylor Law would bar the employerfrom discontinuing that practice without prior negotiation" (Matter of AeneasMcDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, 331 [1998]; see Matter of Chenango ForksCent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479,1480 [2012]). The PERB is authorized to determine disputes as to improper employmentpractices, and to take affirmative action to [*3]effectuatethe policies of the Taylor Law (see Civil Service Law § 205 [5] [d]). Indetermining what may constitute a past practice giving rise to a mandatory subject ofnegotiation, the PERB "focuses on whether the employer's 'practice was unequivocal andwas continued uninterrupted for a period of time under the circumstances to create areasonable expectation among the affected unit employees that the [practice] wouldcontinue' " (Matter ofManhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61AD3d 1231, 1233 [2009] [internal quotation marks omitted], quoting Matter ofChenango Forks Teachers Assn., NYSUT, AFT, AFL-CIO, Local 2561 [ChenangoForks Cent. Sch. Dist.], 40 PERB ¶ 3012 [2007]; see Matter of ChenangoForks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d at1482; Matter of Fashion Inst. ofTech. v New York State Pub. Empl. Relations Bd., 68 AD3d 605, 605 [2009]).
Since the PERB's determination was "made as a result of a hearing held, and atwhich evidence was taken, pursuant to direction by law," we must determine whether it issupported by "substantial evidence" (CPLR 7803 [4]; see Matter of Jennings v NewYork State Off. of Mental Health, 90 NY2d 227, 239 [1997]; Matter of Abraham v Cuevas,41 AD3d 840, 840 [2007]; Matter of Incorporated Vil. of Lake Success v New York State Pub.Empl. Relations Bd., 41 AD3d 599, 599 [2007]; Matter of Superior Officers Assn.of Police Dept. of County of Nassau, Inc. v State of N.Y. Pub. Empl. Relations Bd.,23 AD3d 481, 482 [2005]). However, in light of certain of the Town's contentions,we must also inquire whether the determination "was affected by an error of law or wasarbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]; see Matter ofSuperior Officers Assn. of Police Dept. of County of Nassau, Inc. v State of N.Y. Pub.Empl. Relations Bd., 23 AD3d at 482). Specifically, the Town contends that, sinceits Ethics Code forbids the use of Town vehicles in violation of Town policy, the Towncould not be forced to engage in collective bargaining over the issue. In addition, theTown contends that, as a matter of law, the employees could not have a reasonableexpectation that the assignment of Town vehicles for permanent use would continue,because such an assignment of vehicles violated the Town Ethics Code.
The PERB's determination was not affected by an error of law. First, the Town couldbe required to collectively bargain over the issue. The Town government was responsiblefor administering the Ethics Code and for managing its vehicle fleet. Yet, as substantialevidence in the record establishes, the Town frequently and openly ignored that Codeand its policy for managing its vehicle fleet, only to contend later that the Code allowed itto act unilaterally in taking the vehicles away from the employees who had beenpermanently provided with them. The PERB was not required to give more effect to theTown Ethics Code than the Town itself gave to it. Second, for similar reasons, it cannotbe said as a matter of law that it is unreasonable for employees to rely on theadministering authority's interpretation and implementation of its policy and Ethics Code.Consequently, the PERB's determination was not affected by an error of law, arbitraryand capricious, or an abuse of discretion (see CPLR 7803 [3]; Matter ofSuperior Officers Assn. of Police Dept. of County of Nassau, Inc. v State of N.Y. Pub.Empl. Relations Bd., 23 AD3d at 482).
Moreover, the PERB's determination was supported by substantial evidence."Substantial evidence" is "such relevant proof as a reasonable mind may accept asadequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v StateDiv. of Human Rights, 45 NY2d 176, 180 [1978]; see Matter of Benito v Calero,102 AD3d 778 [2013]). The evidence in the record supported the PERB'sdetermination that the assignment of Town vehicles to the affected employees forpermanent use was unequivocal and continued uninterrupted for a period of time which,under the circumstances, created a reasonable expectation among the affected unitemployees that the practice would continue. The assignment of Town vehicles by Townofficials to nonqualifying employees was done openly and without any indication to theemployees that it was other than legitimate. The payroll office was notified to deduct acertain amount from the employees' paychecks to account for the value of the benefit.Moreover, the practice continued unabated for many years. Consequently, the PERBproperly determined that the assignment of vehicles to the affected employees forpermanent use constituted a past practice as to a term or condition of employment, andthat the Town engaged in an improper practice by refusing to engage in collectivebargaining as to a change to that term or condition (see Matter of Chenango ForksCent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d at 1483;Matter of Manhasset Union Free School Dist. v New York State Pub. Empl.Relations Bd., 61 AD3d at 1233-1234; Matter of County of [*4]Nassau v New York State Pub. Empl. Relations Bd.,215 AD2d 381 [1995]; Matter of Uniondale Union Free School Dist. v Newman,167 AD2d 475, 476-477 [1990]; cf. Matter of Lippman v Public Empl. RelationsBd., 296 AD2d 199 [2002]).
The Town's remaining contentions are without merit.
Finally, the PERB is entitled to an order compelling compliance with this decisionand judgment (see Civil Service Law §§ 205 [5] [d]; 213 [a], [c]; Matter of New York City Tr. Auth.v New York State Pub. Empl. Relations Bd., 78 AD3d 1184, 1187 [2010],affd 19 NY3d 876 [2012]; Matter of Hampton Bays Union Free School Dist. v Public Empl.Relations Bd., 62 AD3d 1066, 1069 [2009]).
Accordingly, we confirm the determination, deny the petition, dismiss the proceedingon the merits, grant the cross petition, and remit the matter to the Supreme Court, SuffolkCounty, for the issuance of an order compelling compliance with this decision andjudgment Skelos, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.