July 13, 2001
By John Caher
ALBANY - An upstate appellate panel yesterday struck another blow to the authority of New York City's Board of Collective Bargaining in a unanimous finding that the Public Employment Relations Board enjoys exclusive jurisdiction over the scope of collective bargaining disputes between the police union and the City.
The ruling yesterday by the Appellate Division, Third Department, severely limits the power of the Board of Collective Bargaining (BCB) and essentially undercuts the City's position that some provisions in a now-expired contract are not subject to collective bargaining.
Its decision in Patrolmen's Benevolent Association v. City and New York State Public Employment Relations Board, 89417, is a significant defeat for the Giuliani Administration and a substantial victory for the 30,000-member PBA.
Yesterday's ruling affirms a first-impression finding from April, when Albany Supreme Court Justice Bernard J. Malone Jr. held that a state- and not a city - panel should take charge of all dispute resolution procedures, decide whether an impasse exists and appoint mediators and arbitration panels if necessary. In a pivotal decision, now affirmed on appeal, Justice Malone upheld the constitutionality of a 1996 state law that the PBA had lobbied for to grant the State's Public Employment Relations Board (PERB) jurisdiction. The PBA believes it can negotiate a better deal through PERB because the state agency has the flexibility to compare the pay of city police officers with the salaries of the much better paid suburban officers.
The controversy stems from the expiration last July of a bargaining agreement between the City and the PBA and centered on interpretation and application of the Taylor Law and Chapter 641 of the Laws of 1998.
PERB was created under §§200-214 of the Civil Service Law - the so-called Taylor Law - to aide in the resolution of labor disputes involving public employees and employers. Additionally, the Taylor Law permitted localities to opt-out of certain elements of PERB jurisdiction by establishing local bodies, often referred to as "mini-PERBs." Although nearly three dozen localities initially established mini-PERBs, nearly all have been abolished. New York City's version, the Board of Collective Bargaining, is among a handful of survivors, and with this decision much of its clout has been gutted.
The police union in 1996 lobbied strenuously and successfully for legislation to shift jurisdiction for resolving an impasse from BCB to PERB. However, on a challenge from the Giuliani Administration, the statute was stricken on home rule grounds since it addressed a parochial rather than catholic interest. Two years later, the Legislature passed Chapter 641, which extended PERB's impasse jurisdiction to all organized fire and police departments across the State.
This case challenged Chapter 641. It arose after the City last November initiated a scope of bargaining procedure before the BCB, where it sought a declaration that a number of PBA proposals and several provisions of the expired contract were non-mandatory subjects of collective bargaining. PBA responded with a declaratory judgment action in Albany County, prevailing before Justice Malone and now the Third Department.
No Home Rule Violation
Justice Carl J. Mugglin, writing for the court, said Chapter 641 does not violate the home rule provision of the State Constitution, since it creates a law of general applicability serving a "substantial state concern." Although the City noted that at least a portion of the statute applied only to four localities New York City and the counties of Suffolk, Nassau and Westchester the court found that fact unavailing.
"Even if we were to consider Chapter 641 a special law, we would find that it falls within the exception to the home rule procedural requirements as the State clearly has a substantial interest in the speedy resolution of labor disputes between its municipalities and their police and fire departments," Justice Mugglin wrote.
Further, the court rejected the City's argument that Chapter 641 improperly delegated legislative power to a labor union.
"The major premise of this argument is that permitting the union to opt to use PERB allows that union to amend or repeal the legislation which created the mini-PERB," Justice Mugglin wrote. "We find this argument untenable. The statute simply prevents a municipality with a mini-PERB from requiring its police or firefighters unions to use the mini-PERB, rather than choosing to use PERB. It is not a delegation of any legislative authority, nor does it delegate to the public employee organizations the authority to resolve bargaining impasses or any other governmental function."
Also on the panel were Justices Thomas E. Mercure, Karen K. Peters, Anthony J. Carpinello and John A. Lahtinen. Appearing were Assistant Corporation Counsel Linda H. Young for the City; Steven C. DeCosta, general counsel for the Office of Collective Bargaining and BCB; Jay W. Waks and Peter M. Fishbein of Kaye Scholer LLP, in Manhattan for the PBA; and Sandra M. Nathan of Albany for PERB.
City's 'Sweet Deal'
Mr. Fishbein, counsel for the PBA, said the ruling has substantial implications for the current dispute as well as future collective bargaining disagreements.
"The City had a sweet deal where it had its own agency was the supposedly impartial arbitrator deciding cases and now it is before a state board so it really will be impartial," Mr. Fishbein said. "Now it is not going to be the City's own lap dog, but a State agency. That will put a lot more pressure on the City to be forthcoming and resolve disputes rather than having to pay whatever this independent board decides."
Leonard Koerner, chief assistant corporation counsel, said yesterday that the City will immediately ask the Court of Appeals for an expedited appeal on constitutional grounds.