| Matter of Albany Police Officers Union, Local 2841, Law EnforcementOfficers Union Dist. Council 82, AFSCME, AFL-CIO v New York Pub. Empl. RelationsBd. |
| 2017 NY Slip Op 02719 [149 AD3d 1236] |
| April 6, 2017 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Albany Police Officers Union, Local 2841, LawEnforcement Officers Union District Council 82, AFSCME, AFL-CIO,Petitioner, v New York Public Employment Relations Board et al.,Respondents. |
Scheuermann & Scheuermann, LLP, Albany (Arthur P. Scheuermann of counsel), forpetitioner.
New York Public Employment Relations Board, Albany (David Quinn of counsel), for NewYork Public Employment Relations Board, respondent.
Roemer Wallens Gold & Mineaux, LLP, Albany (Mary M. Roach of counsel), for Cityof Albany, respondent.
Aarons, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent PublicEmployment Relations Board finding that respondent City of Albany did not commit animproper employer practice in violation of Civil Service Law § 209-a.
Petitioner's active members include police officers and employees working for respondentCity of Albany. Since the late 1980s, the City consistently reimbursed petitioner's activemembers for their Medicare Part B monthly premiums upon their retirement. In October 2008,the City sent a notice to all retirees of various changes to the City's offered health plans. Withregard to Medicare Part B reimbursements, this October 2008 notice advised the retirees that"[u]nder the City's current policy, the City will reimburse you the Medicare Part B premium[*2]on a monthly basis." A separate notice of the same date wasdistributed to the active members similarly advising them of various changes to the offeredhealth plans but did not mention anything about Medicare Part B reimbursements. In October2009, the City sent a notice to all retirees advising them again of changes to the offered healthplans. This notice further stated that, as of December 31, 2009, the City would no longerreimburse Medicare Part B premiums whose effective date for Part B was January 1, 2010. AnOctober 2009 notice was sent to all active members that also advised them of changes to theoffered health plans but, once again, omitted any reference to Medicare Part B premiumreimbursements.
As a result of the change, petitioner filed an improper practice charge with respondent PublicEmployment Relations Board (hereinafter PERB) alleging that the City violated Civil ServiceLaw § 209-a (1) (d) by, among other things, unilaterally discontinuing the practiceof reimbursing Medicare Part B monthly premiums to retirees. After a hearing, an AdministrativeLaw Judge (hereinafter ALJ) dismissed the charge on the basis that no violation of the CivilService Law occurred because "retirees are not covered by the [Public Employees' FairEmployment Act] and the City has made no announcement to current bargaining unit members ofits intention to cease . . . and/or terminate certain Medicare Part B premiumreimbursements." Upon administrative appeal, PERB upheld the ALJ's determination, albeit ondifferent grounds, by concluding that petitioner failed to carry its burden of establishing theexistence of past practice. PERB explained in its decision and order that the October 2008notices "eliminated or altered various plans and benefits" and, therefore, interrupted any pastpractice of reimbursement of Medicare Part B monthly premiums. PERB also found that thephrase, "under the City's current policy," as provided in the October 2008 notice to retirees,"served to provide notice that such policy [of reimbursing Medicare Part B premiums] could notbe relied upon to continue indefinitely." Petitioner commenced this CPLR article 78 proceedingseeking to annul PERB's determination. The matter was thereafter transferred to this Court.
As an initial matter, contrary to petitioner's assertion, PERB did not exceed its jurisdiction ofreview by affirming the ALJ's decision on different grounds inasmuch as the issue of whether theCity had an enforceable past practice was raised and developed at the formal hearing (see Matter of New York City Tr. Auth. vNew York State Pub. Empl. Relations Bd., 78 AD3d 1184, 1186-1187 [2010],affd 19 NY3d 876 [2012]; see generally Matter of Civil Serv. Empls. Assn. v PublicEmpl. Relations Bd., 73 NY2d 796, 798 [1988]).
Turning to the merits, whether the reimbursement of Medicare Part B premiums was a pastpractice depends on whether such "practice was unequivocal and was continued uninterrupted fora period of time under the circumstances to create a reasonable expectation among the affectedunit employees that the practice would continue" (Matter of Manhasset Union Free School Dist. v New York State Pub. Empl.Relations Bd., 61 AD3d 1231, 1233 [2009] [internal quotation marks, brackets andcitations omitted]; see generally Matter of Unatego Non-Teaching Assn. v New York StatePub. Empl. Relations Bd., 134 AD2d 62, 64 [1987], lv denied 71 NY2d 805 [1988])."[T]he expectation of the continuation of the practice is something that may be presumed from itsduration with consideration of the specific circumstances under which the practice has existed"(Matter of Town of Islip v New YorkState Pub. Empl. Relations Bd., 23 NY3d 482, 492 [2014] [internal quotation marks andcitation omitted]).
We review PERB's determination rendered after a hearing by examining whether suchdetermination is supported by substantial evidence (see Matter of Chenango Forks Cent. Sch. Dist. v New York State Pub.Empl. Relations Bd., 21 NY3d 255, 265 [2013]; Matter of City of New York v New York State Pub. Empl. RelationsBd., 103 AD3d 145, 148-149 [2012], lv denied 21 NY3d 855 [2013]; Matterof Sliker v New York State Pub. Empl. Relations Bd., 42 [*3]AD3d 653, 653 [2007]; see generally CPLR 7803 [4]). "Areviewing court in passing upon this question of law may not substitute its own judgment of theevidence for that of the administrative agency, but should review the whole record to determinewhether there exists a rational basis to support the findings upon which the agency'sdetermination is predicated" (Matter of Purdy v Kreisberg, 47 NY2d 354, 358 [1979][citations omitted]; see Matter of Romaine v Cuevas, 305 AD2d 968, 969 [2003]).
Upon a review of the whole record, we conclude that a rational basis does not exist tosupport PERB's determination. The City has been reimbursing the retirees for their Medicare PartB monthly premiums for over 20 years. At the hearing, several witnesses testified as to theirunderstanding and expectation that the City would reimburse them for their Medicare Part Bmonthly premiums upon their retirement and that such reimbursements would continue for therest of their life (see Matter of Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl.Relations Bd., 21 NY3d at 267; Matter of Fashion Inst. of Tech. v New York State Pub. Empl. RelationsBd., 68 AD3d 605, 605 [2009]). In addition, one witness testified that duringnegotiations with the City, the topic of reimbursement for Medicare Part B monthly premiumswas raised but the City felt it was unnecessary to formalize such benefit into the collectivebargaining agreement because everyone knew that it would last "forever." Notably, neither PERBnor the City disputes the fact that the City had reimbursed retirees for their Medicare Part Bpremiums upon their retirement.
PERB nonetheless determined that a past practice of reimbursements did not exist based onthe documentary evidence, i.e., the separate October 2008 notices sent to retirees and activemembers. We conclude that such documentary evidence does not provide "a rational basis tosupport the findings upon which [PERB's] determination is predicated" (Matter of Purdy vKreisberg, 47 NY2d at 358). In this regard, although the October 2008 notice that was sentspecifically to active members advised them of various changes to the health plans offered by theCity, it was entirely silent as to the reimbursement of Medicare Part B premiums. Furthermore,contrary to PERB's finding, the other October 2008 notice and the languagetherein—specifically, "under the City's current policy"—could not have apprisedpetitioner's active members that the reimbursement of Medicare Part B monthly premiums wouldnot continue indefinitely because this notice was only to retirees, who petitioner does notrepresent. For this reason, PERB's conclusion that petitioner never objected to the City'sproposed modifications of Medicare Part B reimbursements lacks evidentiary support inasmuchas petitioner's active members did not have notice of any potential changes to which an objectioncould be lodged. Finally, even if petitioner or its active members had received adequatenotification, we find that the five words—"under the City's current policy"—do notconstitute substantial evidence connoting either the absence of a past practice of reimbursingMedicare Part B monthly premiums by the City, especially when the record as a wholedemonstrates that there was no formal policy for such reimbursements and the City continuallyreimbursed the retirees for such monthly premiums for a significant period of time, or that suchpractice would only be temporary. In view of the foregoing, because PERB's determination is notsupported by substantial evidence, it must be annulled.
Garry, J.P., Egan Jr., Rose and Devine, JJ., concur. Adjudged that the determination isannulled, without costs, and petition granted.