1990 PERB Decision Against the NYC DOE and Third Department Upheld by the Court of Appeals

The New York City Board of Education passed regulations that required employees to disclose extensive financial and in some cases personal background information. A number of unions challenged the regulations and filed a petition with appellant Public Employment Relations Board (PERB). PERB ruled that the board had no duty to negotiate the financial reporting requirement, but that the board was not unilaterally entitled to require disclosure of additional information. The supreme court confirmed PERB's determination, but the appellate division reversed.

The Court of Appeals reversed the decision of the Appellate Division Third Department and ruled that  the board did not have legislative authority to unilaterally pass regulations requiring mandatory disclosure of background information by employees.
 

In the Matter of Board of Education of the City School District of the City of New York et al., Respondents, v. New York State Public Employment Relations Board et al., Appellants

[NO NUMBER IN ORIGINAL]

Court of Appeals of New York

75 N.Y.2d 660; 554 N.E.2d 1247; 555 N.Y.S.2d 659; 1990 N.Y. LEXIS 967

March 27, 1990, Argued 
May 1, 1990, Decided

PRIOR HISTORY: Appeals, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered June 14, 1989, which (1) reversed, on the law, a judgment of the Supreme Court (William McDermott, J.), entered in Albany County in a proceeding pursuant to CPLR article 78, dismissing the petition to annul a determination of respondent New York State Public Employment Relations Board that employee disclosure requirements imposed by petitioner Board of Education of the City School District of the City of New York pursuant to Education Law § 2590-g (14) were terms and conditions of employment subject to mandatory collective bargaining, (2) annulled the determination, and (3) granted the petition.

Matter of Board of Educ. v New York State Pub. Employment Relations Bd., 147 AD2d 70, reversed.

DISPOSITION: Order reversed, etc.

CASE SUMMARY

PROCEDURAL POSTURE: Appellant, Public Employment Relations Board (PERB), challenged the decision of the Appellate Division of the Supreme Court in the Third Judicial Department (New York), which found in favor of respondent, Board of Education (board), and ruled that the board's disclosure requirements of its employees were not subject to negotiation.

OVERVIEW: Respondent board of education (board) passed regulations that required employees to disclose extensive financial and in some cases personal background information. A number of unions challenged the regulations and filed a petition with appellant Public Employment Relations Board (PERB). PERB ruled that the board had no duty to negotiate the financial reporting requirement, but that the board was not unilaterally entitled to require disclosure of additional information. The supreme court confirmed PERB's determination, but the appellate division reversed. On review, the board argued that its disclosure requirements were a prohibited subject of collective bargaining by virtue of the strong public interest in rooting out corruption. However, the court rejected that argument and found that there was no clear evidence that the legislature intended to withdraw the subject of disclosure requirements from the mandatory negotiating process despite their evident impact upon the employees forced to reveal voluminous information on pain of discipline and even dismissal. Therefore, the order of the appellate division was reversed and the petition was dismissed.

OUTCOME: Appellate division's decision that found in favor of respondent board of education (board) was reversed. The board did not have legislative authority to unilaterally pass regulations requiring mandatory disclosure of background information by employees.

CORE TERMS: disclosure requirements, collective bargaining, negotiation, public policy, conditions of employment, disclosure, corruption, bargaining, permissive, negotiate, Taylor Law, bargaining agreement, reporting requirements, discipline, chancellor, mandatory, public policy, negotiating, public interest, school board, school district, nondelegable, irrational, bylaws, public employment, public employer, financial disclosures, impermissible, unilaterally, educational

LexisNexis® Headnotes

Labor & Employment Law > Collective Bargaining & Labor Relations > Impasse Resolution
Labor & Employment Law > Collective Bargaining & Labor Relations > Subjects of Bargaining
Labor & Employment Law > Employment Relationships > General Overview

HN1

In public employment law, "prohibited" subjects are those forbidden, by statute or otherwise, from being embodied in a collective bargaining agreement. "Mandatory" subjects are those over which employer and employees have an obligation to bargain in good faith to the point of impasse. "Permissive" subjects are those as to which either side may, but is not obligated to bargain.

Administrative Law > Judicial Review > Standards of Review > General Overview
Labor & Employment Law > Collective Bargaining & Labor Relations > Subjects of Bargaining

HN2

As the agency charged with interpreting the Civil Service Law, the New York State Public Employment Relations Board (PERB) is accorded deference in matters falling within its area of expertise. In cases involving the issue of mandatory or prohibited bargaining subjects under the Civil Service Law, review is limited and so long as PERB's interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation. However, where the issue is one of statutory interpretation, dependent on discerning legislative intent, judicial review is not so restricted, as statutory construction is the function of the courts, not PERB.

Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain

HN3

The obligation to bargain as to all terms and conditions of employment is a strong and sweeping policy of the state. In a few instances, however, what might otherwise be negotiable terms and conditions of employment are prohibited from being collectively bargained. For example, a statute may direct that certain action be taken by the employer, leaving no room for negotiation. Similarly, a subject that would result in school board surrender of nondelegable statutory responsibilities cannot be negotiated. That certain statutory obligations of a school board are nondelegable is an implicit expression of public policy that forecloses negotiation.

Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain

HN4

Certain decisions of an employer, though not without impact upon its employees, may not be deemed mandatorily negotiable terms and conditions of employment, either because they are inherently and fundamentally policy decisions relating to the primary mission of the public employer, or because the legislature has manifested an intention to commit these decisions to the discretion of the public employer. There is no absolute bar to collective bargaining over such decisions, but the employer may not be compelled to negotiate them. They fall into the "permissive" category.

HEADNOTES

Schools -- New York City Board of Education -- Employee Disclosure Requirements -- Collective Bargaining

A determination of the respondent New York State Public Employment Relations Board that the employee disclosure requirements imposed by New York City's Board of Education pursuant to Education Law § 2590-g (14) were terms and conditions of employment subject to mandatory collective bargaining under the Taylor Law (Civil Service Law § 200 et seq.) is neither irrational, unreasonable nor affected by any error of law. The disclosure requirements are not a "prohibited" subject of collective bargaining. Section 2590-g (14) does not explicitly prohibit collective bargaining, nor is it so unequivocal a directive to take certain action that it leaves no room for bargaining. Negotiation of disclosure requirements would not amount to an impermissible restriction of the Board's responsibility to provide for the "management, operation, control, maintenance and discipline of schools" (Education Law § 2554 [13] [b]). Nor does the public interest in detecting and deterring official corruption prohibit collective bargaining concerning employee disclosure requirements. Moreover, the Board's decision to promulgate these disclosure requirements does not fall into the "permissive" category of decisions which an employer may not be compelled to negotiate. There is no evidence that the Legislature intended to withdraw the subject of disclosure requirements from the mandatory negotiating process despite their evident impact upon the employees forced to reveal voluminous information on pain of discipline and even dismissal; nor was the decision to impose reporting requirements so closely tied to the success of the Board's educational goals that it must be categorized for Taylor Law purposes within the permissive category as a policy choice.

COUNSEL: John M. Crotty and Jerome Thier for New York State Public Employment Relations Board, appellant. I. Public policy cannot limit or prohibit negotiations over Taylor Law "terms and conditions of employment". ( Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Employment Relations Bd., 48 NY2d 398; Rapp v Carey, 44 NY2d 157; Matter of Broidrick v Lindsay, 39 NY2d 641.) II. The court below misapplied public policy to prohibit the negotiation of financial reports and background questionnaires. ( Matter of Enlarged City School Dist. [Troy Teachers Assn.], 69 NY2d 905; Matter of Town of Haverstraw [Rockland County Patrolmen's Benevolent Assn.], 65 NY2d 677; Matter of Sprinzen [Nomberg], 46 NY2d 623; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411.) III. PERB's counterclaim for enforcement should be granted. ( Matter of City of Albany v Helsby, 29 NY2d 433; Matter of New York State Pub. Employment Relations Bd. v Board of Educ., 39 NY2d 86; Matter of Saratoga Springs City School Dist. v New York State Pub. Employment Relations Bd., 68 AD2d 202, 47 NY2d 711; Matter of County of Onondaga v New York State Pub. Employment Relations Bd., 77 AD2d 783; Matter of Town of Oyster Bay v Public Employment Relations Bd., 87 AD2d 595.)

Bruce K. Bryant, J. Christopher Meagher, Stephen L. Fine, Rosaria R. Esperon, James R. Sandner and Robert Perez-Wilson for Council of Supervisors and Administrators, Local 1, AFSA, AFL-CIO, and others, appellants. I. A strong public policy is not sufficient to override Civil Service Law rights. ( Matter of Union Free School Dist. No. 2 v Nyquist, 38 NY2d 137; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Board of Educ. v Areman, 41 NY2d 527; Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers' Assn.], 37 NY2d 614; Rapp v Carey, 44 NY2d 157; Hunter v City of New York , 44 NY2d 708.) II. A strong public policy supporting financial disclosure does not create an overriding public policy against its negotiability. ( Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Board of Educ. v Areman, 41 NY2d 527; Matter of Union Free School Dist. No. 2 v Nyquist, 38 NY2d 137; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411; Matter of Enlarged City School Dist. [Troy Teachers Assn.], 69 NY2d 905; Matter of Candor Cent. School Dist. [Candor Teachers Assn.] , 42 NY2d 266; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of Central School Dist. No. 2 [Livingston Manor Teachers Assn.], 44 AD2d 876; Board of Educ. v Fisher, 54 AD2d 1003; Matter of Schlosser v Board of Educ., 62 AD2d 207.) III. The unpopularity of financial disclosure requirements cannot form the basis for finding nonnegotiability.

Victor A. Kovner, Corporation Counsel (Paul T. Rephen and David Karnovsky of counsel), for respondents. The Board of Education resolutions requiring certain Board employees to submit annual financial disclosure reports and undergo background investigations are not mandatory subjects of bargaining. The court below properly held that compelling public policy prohibits the Board from negotiating over this issue. Alternatively, the requirements are, at most, permissive subjects of bargaining. ( Matter of Incorporated Vil. of Lynbrook v New York State Pub. Employment Relations Bd., 48 NY2d 398; Matter of Town of Mamaroneck PBA v New York State Pub. Employment Relations Bd., 66 NY2d 722; Lefkowitz v Cunningham, 431 U.S. 801; Beilan v Board of Educ., 357 U.S. 399; Matter of Douglas v Allen, 43 Misc 2d 35; Hunter v City of New York, 44 NY2d 708; Evans v Carey, 40 NY2d 1008; Kaplan v Board of Educ., 759 F2d 256; Barry v City of New York, 712 F2d 1554, 464 U.S. 1017; Board of Educ. v Associated Teachers, 30 NY2d 122.)

Nancy E. Hoffman, Marilyn S. Dymond and Robert T. DeCataldo for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae. I. The decision of the court below regarding the negotiability of financial disclosure is improper and unwarranted. ( Matter of Board of Educ. v Helsby, 37 AD2d 493, 32 NY2d 660; Matter of Auburn Police Local 195 v Helsby, 62 AD2d 12, 46 NY2d 1034; Rapp v Carey, 44 NY2d 157.) II. The potential ramifications of the unwarranted decision of the court below could virtually annihilate collective bargaining between labor and management.

JUDGES: Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur. 

OPINION BY: KAYE 

OPINION

 [*663]   [***660]   [**1248]  OPINION OF THE COURT Does the public interest in detecting and deterring official corruption prohibit collective bargaining concerning employee disclosure requirements imposed by New York City's Board of Education? For the reasons that follow, we disagree with the Appellate Division's broad assessment that public policy bars all negotiations on the subject.

In 1975, the Legislature amended Education Law § 2590-g ("Powers and duties of the city board") by adding subdivisions (13) and (14) -- the statutes that gave rise to this litigation. Those amendments for the first time authorized the New York City School Board (the Board) to obtain certain financial disclosures from its officers and employees. ¹ Nine years later,  [*664]  invoking  [***661]   [**1249]  its authority under these subdivisions, the Board adopted two regulations promulgated by the City School District Chancellor. These measures were apparently prompted by the widely publicized improprieties committed by a former Chancellor, and were intended to restore public confidence in the integrity of the school system. The regulations required designated Board employees at certain wage levels to submit detailed annual financial disclosure statements. Some employees were additionally required to undergo an in-depth background investigation that involved, among many other things, consent to verification of tax and credit information, disclosure of former employers' records, health information, disclosure  [*665]  of certain political party associations, consent to be fingerprinted, and an agreement to hold the City harmless for all damages arising out of the investigation, save for those resulting from a breach of confidentiality. Failure to comply with the financial reporting requirements or other disclosure mandates could result in termination or denial of appointment, assignment or promotion.

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1 On the operative dates, Education Law § 2590-g provided that the city board shall have power and duty to:

"13. a. Prescribe regulations and bylaws requiring members of the city board, the chancellor, and any other officer or employee in schools and programs under the jurisdiction of the city board and the chancellor, to make disclosure to the city board, within ninety days of the effective date hereof for the one-year period preceding such effective date, and subsequent to such effective date upon the occurrence thereof, of the following information:

"(1) any direct or indirect interest of the person reporting or his or her spouse in the furnishing of any supplies or materials, or in the doing of any work or labor, including the provision of professional services, or in the sale or leasing of any real estate, or in any proposal, agreement or contract for any of these purposes, in any case in which the price or consideration is to be paid, in whole or part, directly or indirectly, out of any public or school moneys, or any employment, labor, compensation, direct or indirect interest, membership or relationship to any individual, firm, company, corporation, business, organization or association doing business with the city of New York or the city school district of the city of New York.

"(2) the source of any income, reimbursement, gift or other form of compensation for services rendered together with a description of such services arising out of interest disclosed pursuant to paragraph (1) above.

"b. Regulations and bylaws authorized herein shall apply with equal force and effect to community board members, community superintendents and all other officers and employees in schools and programs under the jurisdiction of the community boards.

"c. Willful failure to make full and timely disclosure shall constitute cause for removal from office of any member of the city board or for any other officer or employee disciplinary action and such other penalty as provided by law.

"14. a. Prescribe regulations and bylaws requiring members of the city board, the chancellor and, for good cause shown, any other officer or employee in schools and programs under the jurisdiction of the city board and the chancellor, to submit to the city board, in the discretion of the city board, financial reports for themselves and their spouses.

"b. The frequency and period of coverage, the designation of persons to submit such reports by name, title or income level or by a combination thereof, and the content of such reports, including minimum dollar amounts, shall be determined by the city board and such reports may include but not necessarily be limited to the following:

"(1) amount and source of income for services rendered, together with a description of such services;

"(2) amount and source of gifts, capital gains, reimbursements for expenditures, and honoraria;

"(3) investments in securities and real property;

"(4) amount of debts and names of creditors;

"(5) outstanding loans and other forms of indebtedness due to person reporting or spouse, by name and amounts;

"(6) trusts and other fiduciary relationships and their assets in which a beneficial interest is held.

"c. Regulations and bylaws authorized herein shall apply with equal force and effect to community board members, community superintendents and all other officers and employees in schools and programs under the jurisdiction of the community boards.

"d. Willful failure to file required financial reports shall constitute cause for removal from office of any member of the city board or for any other officer or employee disciplinary action and such other penalty as provided by law."

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Following adoption of the regulations, a number of unions representing affected employees filed improper employer practice charges with the Public Employment Relations Board (PERB), claiming that the disclosure requirements and background investigations constituted "terms and conditions of employment" subject to mandatory negotiation under the Taylor Law, and could not be imposed unilaterally by the Board. The unions also charged that the  [***662]   [**1250]  Board's refusal to negotiate despite union demands violated Civil Service Law § 209-a (1) (d).

In a consolidated decision upon administrative appeal, PERB ruled that the Board had no duty to negotiate the specific financial reporting requirements set out in Education Law § 2590-g (13). ² However, it concluded that the Board was not unilaterally entitled to require disclosure of additional information under section 2590-g (14). Noting the far broader discretion as to the actual reporting requirements given the Board under subdivision (14), and weighing the various affected interests, PERB concluded that -- other than the disclosure required by subdivision (13) -- all the disclosures required by the Board were terms and conditions of employment that had to be negotiated.

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2 The unions do not take issue with that aspect of PERB's ruling on this appeal.

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The Board then instituted this article 78 proceeding seeking annulment of PERB's determination. Supreme Court confirmed PERB's determination, but the Appellate Division reversed (147 AD2d 70). In the view of the Appellate Division, collective bargaining over any disclosure requirements was necessarily prohibited in order to effectuate "the strong public interest in detecting and deterring corruption," as "[it] would be absurd to require the Board here to negotiate over anticorruption measures with the very employees whose honesty and integrity are at issue." ( Id., at 74.) We now reverse and dismiss the Board's petition.

 [*666] Analysis

At the outset of our analysis it is useful to establish the frame of reference within which the parties' contentions should be evaluated. ^HN1"In public employment law, 'prohibited' subjects are those forbidden, by statute or otherwise, from being embodied in a collective bargaining agreement. 'Mandatory' subjects are those over which employer and employees have an obligation to bargain in good faith to the point of impasse. 'Permissive' subjects are those as to which either side may, but is not obligated to bargain." ( Matter of Incorporated Vil. of Lynbrook v New York State Pub. Employment Relations Bd., 48 NY2d 398, 402-403, n 1.)

The Board maintains, as the Appellate Division held, that its disclosure requirements are a prohibited subject of collective bargaining by virtue of the strong public interest in rooting out corruption. Alternatively, the Board maintains that those policy concerns required, at the very least, that PERB recognize that the requirements are a permissive subject of negotiations, and that the Board need not enter into negotiations unless it chooses to do so. The unions, of course, contend that the disclosure requirements are "terms and conditions of employment" within the meaning of Civil Service Law § 201 (4), and must be negotiated (Civil Service Law § 204 [3]).

Also germane to the present discussion are well-established principles concerning the scope of our review. ^HN2 As the agency charged with interpreting the Civil Service Law, PERB is accorded deference in matters falling within its area of expertise (see, Matter of Rosen v New York State Pub. Employment Relations Bd., 72 NY2d 42, 47). In cases involving the issue of mandatory or prohibited bargaining subjects under the Civil Service Law, we have defined our review power as a limited one: "[so] long as PERB's interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation." ( Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50.) However, where the issue is one of statutory interpretation, dependent on discerning legislative intent, judicial review is not so restricted, as statutory construction is the function of the courts, not PERB. ( Matter of Rosen v New York State Pub. Employment Relations Bd., 72 NY2d, at 47-48, supra).

 [*667]   [***663]   [**1251]  Prohibited Bargaining Subjects

We turn first to the Board's claim -- concurred in by the Appellate Division -- that the disclosure requirements are a "prohibited" subject of collective bargaining. According to the Board, Education Law § 2590-g (14) embodies a strong public policy to detect and deter corruption; to subject anticorruption measures to the give-and-take of the negotiating process would necessarily compromise, or appear to the public to compromise, the Board's ability to maintain the highest standards of integrity among its employees. Therefore, reasons the Board, implicit in the statutory scheme empowering the Board to require disclosure is prohibition of collective bargaining. In addition, the Board suggests that permitting the unions to negotiate over the disclosure requirements would significantly infringe its nondelegable responsibility for "the general management, operation, control, maintenance and discipline of schools." (Education Law § 2554 [13] [b].)

^HN3The obligation under the Taylor Law to bargain as to all terms and conditions of employment is a "strong and sweeping policy of the State" ( Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778; Board of Educ. v Associated Teachers, 30 NY2d 122, 129). In a few instances, however, what might otherwise be negotiable terms and conditions of employment are prohibited from being collectively bargained. For example, a statute may direct that certain action be taken by the employer, leaving no room for negotiation (see,Matter of Union Free School Dist. No. 2 v Nyquist, 38 NY2d 137). Similarly, a subject that would result in school board surrender of nondelegable statutory responsibilities cannot be negotiated (see, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, supra;Board of Educ. v Areman, 41 NY2d 527). That certain statutory obligations of a school board are nondelegable, we have held, is an implicit expression of public policy that forecloses negotiation (see, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d, at 778,supra).

We have also recognized that there may be general public policy limitations on collective bargaining that are not derived from statute (see, Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers' Assn.], 37 NY2d 614, 617). However, we have never actually prohibited bargaining or invalidated a collective bargaining agreement on such a nonstatutory public policy ground. As we have noted, a public  [*668]  policy strong enough to require prohibition would "almost invariably [involve] an important constitutional or statutory duty or responsibility." ( Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898, 899.)

The Legislature, if it chooses, can of course explicitly prohibit collective bargaining. Certainly, Education Law § 2590-g (14), as presently formulated, contains no such prohibition. Nor is the statute so unequivocal a directive to take certain action that it leaves no room for bargaining. The Board itself viewed its power to act under the statute as discretionary and it refrained for nine years from acting at all; the statute also explicitly gives the Board wide discretion concerning the substance of the reporting requirements.

Negotiation of disclosure requirements would not amount to an impermissible restriction of the Board's responsibility to provide for the "management, operation, control, maintenance and discipline of schools." It is difficult to conceive of any term and condition of employment that does not in some way impinge upon the operation or discipline of schools, but that does not mean that any agreement reached between the Board and the unions would constitute an unenforceable delegation of power (see, Matter of Board of Educ. v Merrick Faculty Assn., 65 AD2d 136, 141-142). [**1252]   [***664]  Indeed, even while invalidating agreements in which a board surrendered its nondelegable responsibility for tenure decisions, we have permitted other agreements that obviously affected the tenure decision -- for instance, by requiring certain procedures to be followed by the board (see, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d, at 778, supra).

In cases where a stay of arbitration pursuant to a collective bargaining agreement has been sought on the ground that the remedy awarded might run afoul of a prohibition against the delegation of a duty, we have refused to stay the arbitration prematurely, unless no remedy fashioned by the arbitrator could possibly be consistent with public policy (see, Matter of Enlarged City School Dist. [Troy Teachers Assn.], 69 NY2d 905, 906-907). Here the Board in effect asserts that there is no agreement it could reach with the unions that would not result in so severe a restriction of its power to manage the schools as to require us to set it aside on public policy grounds. Plainly, that cannot be so, and we refuse in advance to prohibit all negotiation on that broad speculation.

 [*669]  The Board next maintains that whether or not ascribable to any specific statute, the public stake in the integrity of school board employees is so compelling that public policy requires that the measures taken by the Board not be impaired by the process of negotiating with the employees whose integrity is in question. This open-ended "public policy" argument is more aptly denominated a "public interest" argument, for it is not based on statute, Constitution or even clear common-law principles -- sources in which a public policy prohibition against a collective bargaining agreement might be found (see, Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 422-423 [Breitel, Ch. J., concurring]).

Issues of public concern, while unquestionably important, are not to be confused with the strong, unmistakable public policy that would -- and then only rarely -- require invalidation of a collective bargaining agreement. Here, what the Board asks is not even that we invalidate a collective bargaining agreement violative of public policy, but prospectively that we declare that the entire area of disclosure requirements is off-limits for negotiation -- and on the basis of no body of law whatsoever. This, we decline to do. Apart from the precedent such a ruling would create for future cases, we recognize in this case, as did PERB, that reasonable people might well disagree about what measures were appropriate to further the goal of eliminating corruption. We cannot discern a public policy that requires that employees, prospectively, be denied any voice in the matter (see, Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23).

Thus, it cannot be said that a prohibition against collective bargaining is found, explicitly or implicitly, in Education Law § 2590-g (14), or in public policy.

Permissive Bargaining Subjects

We have also recognized that ^HN4certain decisions of an employer, though not without impact upon its employees, may not be deemed mandatorily negotiable "terms and conditions of employment," either because they are inherently and fundamentally policy decisions relating to the primary mission of the public employer (see, Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, supra), or because the Legislature has manifested an intention to commit these decisions to the discretion of the public employer (see, Matter of Webster Cent. [*670]  School Dist. v Public Employment Relations Bd., 75 NY2d 619 [decided today]). There is no absolute bar to collective bargaining over such decisions, but the employer may not be compelled to negotiate them. They fall into the "permissive" category.

We reject the Board's contention that its decision to promulgate these disclosure  [***665]   [**1253]  requirements represents such a managerial prerogative as a matter of law. ³ To the extent that the Board argues that Education Law § 2590-g itself embodies a legislative choice to permit it unilaterally to impose disclosure requirements beyond those set forth in subdivision (13), we need not defer to PERB's interpretation of the statute (see, Matter of Rosen v New York State Pub. Employment Relations Bd., 72 NY2d 42, 47-48, supra). However, upon our independent review of the statute, we see no evidence -- let alone clear evidence -- that the Legislature intended to withdraw the subject of disclosure requirements from the mandatory negotiating process despite their evident impact upon the employees forced to reveal voluminous information on pain of discipline and even dismissal (contrast, Matter of City School Dist. v New York State Pub. Employment Relations Bd., 74 NY2d 395).

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3 Our decision in this respect is limited to the claims presented to us by the parties. As noted in the administrative decisions, the disclosure requirements imposed by the Board go well beyond the types of financial disclosure specifically enumerated in the statute. The unions do not argue that the Board exceeded its statutory authority; by the same token, the Board does not argue that disclosure requirements more closely tailored to those enumerated in the statute might in some respects be permissive bargaining subjects only. Thus, we have no occasion to consider whether there might be certain limited powers reserved to the sole discretion of the Board under Education Law § 2590-g (14), as were found by the Administrative Law Judge to exist under Education Law § 2590-g (13).

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We are similarly unpersuaded by the Board's argument that the decision to impose reporting requirements was so closely tied to the success of its educational goals that it must be categorized for Taylor Law purposes as a policy choice. PERB's conclusion that the disclosure requirements, while important to the Board's interests, represented a still greater intrusion upon the employees' terms and conditions of employment was not so plainly legally impermissible that we may set aside its expert assessment. Essentially, the Board argues that in balancing the factors that led to its conclusion, PERB gave inadequate consideration to the Board's concerns for employee integrity, elimination of corruption and the like. Although the interests at stake might be weighed differently, PERB articulated  [*671]  a rational basis for its decision. It was hardly irrational for PERB -- while recognizing that the Board (like all public employers) had a significant interest in the integrity of its workforce -- to give even greater weight to the employees' interest in being able to negotiate the requirements proposed by the Board. Nor was it irrational for PERB to determine that monitoring corruption is sufficiently attenuated from the primary educational mission or function of the school district that it may be outweighed by the other interests involved.

Finally, we accord no significance to the apparent failure of the Legislature to provide any final impasse resolution mechanism in the case of school district negotiations (compare, Civil Service Law § 209 [3] [e], with Civil Service Law § 209 [3] [f]). If the theoretical possibility of a negotiating deadlock were grounds for refusing to require negotiation of initiatives undertaken by the Board, little if any Board action would be subject to the Taylor Law's broad command, and that would plainly be absurd. Any complaint the Board has in that regard must be directed to the Legislature; it provides no basis for overturning PERB's determination.

PERB's determination was neither irrational, unreasonable nor affected by any error of law. Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

BD. OF EDUC. v. PERB.

LINK

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147 A.D.2d 70 (1989)

In the Matter of Board of Education of the City School District of the City of New York et al., Appellants, v. New York State Public Employment Relations Board et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Third Department.

June 1, 1989

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Peter L. Zimroth, Corporation Counsel (David Karnovsky, Paul T. Rephen and June Witterschein of counsel), for appellants.

Martin L. Barr (Jerome Thier of counsel), for Public Employment Relations Board, respondent.

Robert Perez-Wilson (Rosaria R. Esperson of counsel), for District Council 37, AFSCME, AFL-CIO, respondent.

Bruce K. Bryant for Council of Supervisors and Administrators, Local 1, respondent.

James R. Sandner (J. Christopher Meagher of counsel), for New York State United Teachers, respondent.

Cohn, Glickstein & Lurie (Stephen L. Fine of counsel), and Spivak, Lipton, Watanabe & Spivak for Communication Workers of America and another, respondents.

CASEY, J. P., MIKOLL, YESAWICH, JR., and MERCURE, JJ., concur.

---

[147 A.D.2d 71]

HARVEY, J.

In the wake of a 1984 scandal concerning alleged financial improprieties and breaches of public trust involving a former Chancellor of the City School District of the City of New York, petitioner Board of Education of the City School District of the City of New York (hereinafter the Board) took steps to ensure that no similar incidents would occur in the future by undertaking to investigate its nontenured employees. Invoking its authority under Education Law § 2590-g (13) and (14), the Board adopted Chancellor's Regulations C-115 and C-120, as amended, which basically required designated Board employees earning certain wages to undergo background investigations and submit detailed annual financial disclosure statements as a condition of their continued employment. Four of the respondents in this proceeding, employee organizations representing various units of the Board's employees, filed improper employer practice charges with respondent Public Employment Relations Board (hereinafter PERB) claiming that the Board's unilateral adoption of regulations C-115 and C-120 and its refusal to negotiate the matter violated Civil Service Law § 209-a (1) (d) and (e). The matters were heard separately and the Administrative Law Judges found for said

[147 A.D.2d 72]

respondents. In all the matters, the Board was ordered to rescind and cease enforcement of the disputed regulations.

Thereafter, the Board filed exceptions to the administrative decisions with PERB. In a consolidated decision, PERB determined that the Board's actions violated the Taylor Law and ordered the Board to rescind and cease enforcement of the regulations. The Board and its Chancellor then commenced this CPLR article 78 proceeding seeking to set aside and annul PERB's determination. Supreme Court dismissed the petition on the merits and this appeal by petitioners ensued.

As the agency charged with implementing the Taylor Law (Civil Service Law §§ 200-214), PERB "is presumed to have developed an expertise which requires [courts] to accept its construction of [the Taylor Law]" unless the determination is arbitrary and capricious or an abuse of discretion (Matter of Town of Mamaroneck PBA v New York State Pub. Employment Relations Bd., 66 N.Y.2d 722, 724;see, Matter of West Irondequoit Teachers Assn. v Helsby, 35 N.Y.2d 46, 51). In the present case, petitioners argue that the pivotal issue raised herein requires an interpretation of the Education Law, not the Taylor Law, and therefore PERB's determination that the imposition of financial disclosure and background investigation requirements are mandatory subjects of collective bargaining is not entitled to the deference accorded such decisions (see, Matter of Town of Mamaroneck PBA v New York State Pub. Employment Relations Bd., supra, at 724). The principal statute at issue is Education Law § 2590-g, which provides in pertinent part that:

[T]he city board shall have power and duty to * * *14. a. Prescribe regulations and bylaws requiring members of the city board, the chancellor and, for good cause shown, any other officer or employee in schools and programs under the jurisdiction of the city board and the chancellor, to submit to the city board, in the discretion of the city board, financial reports for themselves and their spouses.b. The frequency and period of coverage, the designation of persons to submit such reports by name, title or income level or by a combination thereof, and the content of such reports, including minimum dollar amounts, shall be determined by the city board and such reports may include but not necessarily be limited to the following (emphasis supplied).

However, despite petitioners' contentions otherwise, this case does turn on PERB's interpretation of the Taylor Law and not

[147 A.D.2d 73]

on any interpretation by PERB of the Education Law. As revealed by the record, both PERB and petitioners are in agreement that the financial disclosure requirements of Education Law § 2590-g (14) are discretionary since petitioners have apparently abandoned any argument that financial disclosure requirements were mandated by the Education Law. Such an argument could not be persuasive since Education Law § 2590-g (14) was added to the statute in 1975 and petitioners' regulations were not adopted until 1984. Accordingly, this case turns on whether the imposition of financial disclosure requirements are terms and conditions of employment which are mandatory subjects for collective bargaining (see, Civil Service Law § 204 [2]; § 209-a [1] [d]) and whether PERB's determination that they were should be accorded deference.

In our view, PERB's determination should be annulled. While PERB is usually given discretion in determining what issues constitute mandatory subjects for collective bargaining, there are exceptions where certain matters otherwise deemed terms and conditions of employment are prohibited from collective bargaining. This is where there is "plain and clear" language against it in a statute (Syracuse Teachers Assn. v Board of Educ., 35 N.Y.2d 743, 744) or where there is a public policy explicitly or implicitly prohibiting collective bargaining derived from a statute or statutory scheme (Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers' Assn.], 37 N.Y.2d 614, 616-617).

Here, we find an example of the latter exception (see, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 N.Y.2d 774, 778). While Education Law § 2590-g (14) and the various other provisions in the Education Law permitting the imposition of financial disclosure requirements of certain employees (see, e.g., Education Law § 2590-e [20]; § 2590-g [13]) do not explicitly forbid collective bargaining as to this subject, it is our view that this prohibition is implicit in such provisions (see, supra; see also, Board of Educ. v Areman, 41 N.Y.2d 527, 534). Undeniably, there is a strong public policy to detect and deter corruption and conflict of interest. The Second Circuit Court of Appeals has held such policy to be a substantial, possibly even a compelling, State interest (see,Barry v City of New York, 712 F.2d 1554, 1560, cert denied 464 U.S. 1017; see also, Kaplan v Board of Educ., 759 F.2d 256, 261-262; Matter of Levitt v Board of Collective Bargaining, 140 Misc.2d 727).

In reaching its determination that financial disclosure requirements

[147 A.D.2d 74]

are mandated subjects of collective bargaining, PERB applied a balancing test in which it weighed the State's interest in deterring and detecting corruption against the privacy interests of the employees. Factoring in also the public policy of encouraging collective bargaining, PERB concluded that the privacy rights of the affected employees outweighed the public interest in avoiding corruption. We find this oversimplified analysis inadequate as it appears to pay insufficient attention "to the fact that the public interest in avoiding corruption * * * is of enormous importance to government in carrying out its core concerns" (Matter of Levitt v Board of Collective Bargaining, supra, at 738). PERB apparently disregarded numerous decisions in this area which have held that whatever constitutionally protected privacy interests may be affected by the disclosure requirements are outweighed by the governmental interest in avoiding corruption and conflicts of interest (see, Kaplan v Board of Educ., supra; Barry v City of New York, supra; Evans v Carey, 40 N.Y.2d 1008; Hunter v City of New York, 58 A.D.2d 136, affd 44 N.Y.2d 708). The case of Rapp v Carey (44 N.Y.2d 157), relied on by respondents, is inapposite since it holds that employees' privacy rights are not overborne by unlawfully passed executive orders. Here, the Board's regulations are derived from implicit and explicit statutory direction.

In sum, we find that, in light of the strong public interest in detecting and deterring corruption, the imposition of financial disclosure requirements is a prohibited subject of collective bargaining. It would be absurd to require the Board here to negotiate over anticorruption measures with the very employees whose honesty and integrity are at issue. In light of our finding that PERB's determination should be annulled, we find it unnecessary to address the remaining issues raised by petitioners.

Judgment reversed, on the law, with costs, determination annulled and petition granted.

Decision (2015) in Morton v Mulgrew Concerning UFT Members Who Resigned After Nov. 1, 2011 and Were Denied Their Rights in the New UFT MOA

Dianna Morton

Plaintiffs, whose case was dismissed, claimed that:

"The amended class action complaint alleges that "(t)he exclusion of Plaintiffs and Class members from the 2014 CBA evidences a total lack of representation of their interest by the UFT during negotiations[, which was] beyond arbitrary, discriminatory, and in bad faith[, and constitutes] a breach of the UFT's duty of fair representation owed to the Plaintiffs and Class members....the UFT, in reaching an overall agreement on the 2014 MOA, "refused to negotiate on behalf of former teachers and union members who resigned after November 1, 2011 as it believed that it did not owe any duty to those individuals[, and that] the UFT did not endeavor to balance the rights of" such individuals. ."

The New York State Supreme Court dismissed the Plaintiff's case, and Plaintiffs appealed as 
follows:

Plaintiffs seek reversal on the following grounds:

1)             The court erred in determining that plaintiffs failed to allege a cause of action pursuant to CPLR 3211(a)(7),

2)             General Association Law § 13 was overruled by statute; and

3)             The Public Employment Relations Board cannot exercise jurisdiction over the Plaintiffs' class action claim.

Dated: August 21, 2015

Recent PERB decisions

MORTON v. MULGREW

LINK

2015 NY Slip Op 31363(U)Docket No. 652211/2014, Motion Sequence No. 1.

DIANNA MORTON, GRANT TEDALDI, CARLY MASSEY, and JOY BEIDER, Plaintiffs, v. MICHAEL MULGREW, as President of THE NEW YORK UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO, Defendant.

Supreme Court, New York County.

April 21, 2015

DECISION AND ORDER

DONNA M. MILLS, Judge.

Upon this motion, defendant, Michael Mulgrew, as President of the New York United Federation of Teachers, Local 2, AFT, AFL-CIO (the UFT), moves, pursuant to CPLR 3211 (a) (7), to dismiss this class action, for breach of the duty of fair representation, brought by plaintiffs on behalf of persons who were members of the UFT, employed by the New York City Department of Education (DOE) at any time between November 1, 2009 and June 30, 2014, whose employment with the DOE ended on or before June 30, 2014 for reasons other than retirement or termination, and who would be entitled to retroactive benefits under the 2014 Collective Bargaining Agreement, negotiated between the UFT and the DOE (the 2014 CBA), if presently employed. Plaintiffs cross-move for leave to file a second amended class action complaint.

BACKGROUND

The UFT is recognized under the New York State Public Employees' Fair Employment Act, Civil Service Law § 200, et seq. (CSL, also referred to herein as the Taylor Law), as the exclusive bargaining agent for non-supervisory pedagogical personnel, and other titles, working predominantly in the New York City public schools. A collective bargaining agreement between the UFT and the DOE, expired in October 2009 without agreement on a successor contract.

In January of 2010, the UFT filed a declaration of impasse with the New York State Public Employment Relations Board (PERB), pursuant to CSL § 209. As of February 22, 2010, pursuant to its authority under CSL § 209 (3) (a), PERB issued a letter appointing a mediator to assist the parties in negotiations. As the mediation was unsuccessful, PERB then issued a letter, as of September 24, 2012, pursuant to its authority under CSL § 209 (3) (b), appointing a public fact-finding panel to make a non-binding recommendation as to potential terms and conditions of employment for a successor agreement.

On May 1, 2014, the parties announced that they had tentatively reached agreement on a new CBA covering the nine-year period from November 1, 2009 through October 31, 2018, which was memorialized in a Memorandum of Agreement (the 2014 MOA, and sometimes herein the 2014 Collective Bargaining Agreement, or the 2014 CBA; see Klinger affirmation, exhibit 8), and ratified by a vote of 69,815 UFT members in favor, and 20,655 UFT members against on June 3, 2014.

At issue in this action are provisions of the 2014 MOA regarding retroactive pay. The 2014 MOA states that

[u]pon ratification, the City shall establish a Structured Retiree Claims Settlement Fund in the total amount of $180 million to settle all claims by retirees who have retired between November 1, 2009 through June 30, 2014 concerning wage increases arising out of the 2009-2011 round of bargaining. The Fund will be distributed based upon an agreed upon formula.

2014 MOA, § 3C.

The 2014 MOA then goes on to delineate benefits for those who were active and continuously employed during the term of the agreement (id., § 3E), and those who retired from service after June 30, 2014 (id., § 3D). The 2014 MOA does not offer any benefits for those who are neither active nor retired. In other words, there is no benefit offered for the plaintiffs herein, i.e., former UFT members who resigned or were discontinued.

Plaintiffs now bring an action in which their sole cause of action against the UFT is for breach of duty of fair representation. The amended class action complaint alleges that "[t]he exclusion of Plaintiffs and Class members from the 2014 CBA evidences a total lack of representation of their interest by the UFT during negotiations[, which was] beyond arbitrary, discriminatory, and in bad faith[, and constitutes] a breach of the UFT's duty of fair representation owed to the Plaintiffs and Class members." Amended Class Action Complaint, ¶¶ 63-65.

In the proposed second amended class action complaint, the plaintiffs add the allegations that the UFT, in reaching an overall agreement on the 2014 MOA, "refused to negotiate on behalf of former teachers and union members who resigned after November 1, 2011 as it believed that it did not owe any duty to those individuals[, and that] the UFT did not endeavor to balance the rights of" such individuals. Second Amended Class Action Complaint, ¶¶ 54-56.

ARGUMENTS

The UFT argues that the court should dismiss this case under the "Martin Rule," which established that "the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven." Martin v Curran, 303 N.Y. 276, 282 (1951). Alternatively, the UFT urges that the court decline to exercise jurisdiction in this matter, and leave the resolution of the dispute to PERB. Finally, the UFT maintains that the complaint fails to plead material facts giving rise to the essential elements of a claim sounding in breach of the duty of fair representation.

Plaintiffs argue that the court should find that New York General Association Law § 13 has been altered by common law and CSL § 209-a (2) (c); or otherwise that CSL § 209-a (2) (c) was satisfied by the union-wide ratification vote approving the MOA. Plaintiffs also urge that the court find that UFT owed the plaintiffs a continued duty of fair representation, and that UFT's alleged decision not to represent the plaintiffs at all was arbitrary, discriminatory, or in bad faith.

DISCUSSION AND DECISIONS

Cross Motion to Amend the Complaint

As a preliminary matter, UFT argues that the Court should deny plaintiffs' cross motion for leave to file the amended complaint because it "merely repackages the existing conclusory assertion that the UFT somehow failed or refused to represent Plaintiffs, with no supporting facts having been articulated," and the "amendment is futile as the proposed additions, even if accepted, could not cure the fatal deficiencies identified in Defendant's Motion to Dismiss." Memorandum in Opposition to Cross Motion at 10. This argument is rejected.

First, given a choice, this court, absent prejudice or surprise resulting directly from any delay in defining the causes of action, errs on the side of freely granting leave to amend. CPLR 3025 (d);Fahey v County of Ontario, 44 N.Y.2d 934, 935 (1978). Second, it is the longstanding preference, and strong public policy, in New York, that cases be decided on their merits. See Rivera v City of New York, 292 A.D.2d 246 (1st Dept 2002). Finally, UFT's assertion that the proposed amendments do not cure the deficiencies of the complaint suggests that there is no particular prejudice to UFT in allowing the amendment, and that the essence of UFT's motion to dismiss is undisturbed by directing it toward the second amended class action complaint. The cross motion to amend is granted, and the motion to dismiss is directed to that complaint.

Motion to Dismiss Breach of the Duty of Fair Representation

On a motion to dismiss, pursuant to CPLR 3211, the challenged pleading is afforded a liberal construction, and the facts alleged therein are generally accepted as true, and it is given the benefit of every possible favorable inference. The court seeks only to determine whether the facts as alleged fit within any cognizable legal theory. See e.g. Leon v Martinez, 84 N.Y.2d 83, 87-88 (1994). Despite this, unsubstantiated speculation is insufficient to defeat an otherwise properly brought motion to dismiss. See Mark Hampton v Bergreen, 173 A.D.2d 220, 220 (1st Dept 1991) (inherently incredible, unsupported, or flatly contradicted facts, as well as allegations consisting of bare legal conclusions are not entitled to the presumption of truth and the benefit of every favorable inference).

As a backdrop to this matter, the court notes that General Associations Law § 13 provides that

[a]n action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section.

The liability aspect of General Associations Law § 13 operates within the context of CSL § 209-a, under which "[a] breach of the duty of fair representation entails a showing of conduct by a union that is arbitrary, discriminatory or founded in bad faith." Butler v McCarty, 306 A.D.2d 607, 608 n1 (3d Dept 2003). Under New York common law, courts have required "substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives." Badman v Civil Serv. Empls. Assn., 91 A.D.2d 858, 858 (4th Dept 1982) (emphasis added), citing Street, Railway & Motor Coach Empls. v Lockridge, 403 U.S. 274, 299 (1971), and Humphrey v Moore, 375 U.S. 335, 348 (1964). "[A]bsent [such] improper intent, a union does not breach the duty of fair representation [under New York law] by entering into an agreement which favors some employees over others." McGovern v Local 456, Intl. Bhd. of Teamsters, Chauffeurs & Warehousemen & Helpers of Am., AFL—CIO, 107 F.Supp.2d 311, 319 (SD NY 2000); see also Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. Of Teamsters v City of New York, 64 N.Y.2d 188, 197 (1984) ("[w]here the union undertakes a good-faith balancing of the divergent interests of its membership and chooses to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees, such accommodation does not, of necessity, violate the union's duty of fair representation"); CSL § 209-a (2).

The standing aspect of General Associations Law § 13 was recently treated in Palladino v CNY Centro(23 N.Y.3d 140, 147-48, rearg denied 23 N.Y.3d 1030 [2014]). Palladino maintained, contrary to the assertions of plaintiffs, that the court's prior statutory interpretations of the operation of General Associations Law § 13 remain in place. More specifically, the court stated that "New York [clings] to the common-law requirement that the complaint allege that all of the individual members of the union authorized or ratified the conduct at issue." Id. at 148 (citation and internal quotation marks omitted).

Here, plaintiffs' cursory allegation added in the second class action complaint, even if afforded the benefit of every favorable inference, is conclusory at best. Plaintiffs merely state that the UFT did not bargain on their behalf. However, the existence of retroactive pay provisions in the MOA is a clear indication that retroactive pay was, indeed, a part of the negotiation. See Matter of County of Erie v State of New York, 14 A.D.3d 14, 16 (3d Dept 2004) ("[w]here, however, a CBA is silent on an issue,the unilateral implementation of procedures regarding matters subject to collective bargaining violates the statutory duty to bargain under Civil Service Law § 209-a [1] [d]") (emphasis added); see also Matter of Roma v Ruffo, 92 N.Y.2d 489, 494 (1998) ("when the dispute between public employer and the employees' representative arises during term of an CBA, the statutory duty to bargain collectively and the improper practice of failing to do so in good faith apply only when the parties' dispute is outside the terms of the CBA, but not when the condition of employment in question is expressly provided for in the parties' agreement") (emphasis added); CSL § 209-a. Moreover, as indicated in Matter of Civil Service Bar Assn. (64 NY2d at 197), that the UFT gained the benefit of retroactive pay for some members, and not for plaintiffs, is not actionable.

In addition, plaintiffs make the conclusory allegation that UFT's decision not to represent the plaintiffs at all was arbitrary, discriminatory, or in bad faith. First, as noted above, there is every indication that no such decision was made. Moreover, plaintiffs fail to give any indication that facts indicating UFT's purported decision could be discovered. See e.g. CPLR 3211 (d) ("[s]hould it appear from affidavits submitted in opposition to a motion [to dismiss] that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion").

The court finds the various citations to PERB decisions offered by the plaintiffs referring to the jurisdiction of PERB to be taken out of context. In all of the decisions offered, the subject unions refused to represent an individual with regard to discharge or disciplinary procedures. For example, the quote from Matter of Jeffrey Kaufman, Charging Party, and United Federation Of Teachers, Local 2, AFT, AFL-CIO, Respondent (39 PERB ¶ 4540) that "[t]he Board does not permit the filing of class action charges by individuals" is taken from a footnote (note 3) in that decision. Meanwhile, plaintiffs ignore the concluding admonition of the decision that "[a]s long as employee organizations and employers do not impinge upon basic organizational or collective negotiation rights in dealing with employees as union members, their conduct is not within the purview of the Act." First emphasis added; second emphasis original. This is, thus, an indication that while PERB does not permit class actions, PERB is willing to hear complaints of plaintiffs where the matter involves collective negotiation rights. See e.g. Matter of Thomas C. Barry, Charging Party, and United University Professions, Respondent, 21 PERB ¶ 3025 ("[w]hile we have held many times that PERB's procedures do not permit the filing of class action improper practice charges, and that PERB will accordingly not order remedial relief on a class-wide basis, we have also held that an agency fee payer has standing to file an improper practice charge alleging that certain aspects of an agency fee refund procedure are violative of his own Taylor Law rights, even if he has acted in conformity with a challenged procedure").

Given PERB's position, the court perceives no reason that the parties adversely affected by the MOA cannot be named; it is beyond question that the DOE will have records of its employees. As such, that PERB does not permit class actions is irrelevant to the plaintiffs' ability to gain relief if a breach of the duty of fair representation has occurred; the plaintiffs can obtain the names of affected parties and, with permission, institute proceedings on their behalf.

Finally, plaintiffs rely on De Cherro v Civil Serv. Empls. Assn. (60 A.D.2d 743, 744 [3d Dept 1977]) to assert that this matter may not be referred to PERB because "[t]he Supreme Court retains jurisdiction over all labor contracts when the question of fair representation arises. This provides employees with assurance of impartial review of union conduct. To hold otherwise in this case would strip the public employee of the protection afforded by the fair representation doctrine." Citations and internal quotation marks omitted. This reliance is misplaced. Plaintiffs fail to note the immediately prior passage in DeCherro, which indicates that the question was not whether PERB had any jurisdiction, but, rather, whether it had exclusive jurisdiction: "PERB's sphere of exclusive jurisdiction is limited and does not preclude judicial relief in matters outside its range of jurisdiction. .At issue in this case is not an improper employment practice over which PERB has exclusive authority, but rather, an issue concerning whether or not the duty of fair representation guaranteed to plaintiff by the employment contract has been fulfilled." Emphasis added.

Given the well-established jurisprudence in this area, this court adopts the position of the Court of Appeals in Palladino, which is that although the standards set under General Associations Law § 13 and the Martin Rule are onerous, "union members like [plaintiffs] are not without a remedy. Public employees in New York may bring an improper practice charge before the New York State Public Employment Relations Board pursuant to the Taylor Law." 23 NY3d at 152.

In accordance with this decision, it is hereby

ORDERED the motion of cross motion of plaintiffs to amend the complaint is granted; and it is further

ORDERED that the motion of defendant, Michael Mulgrew, as President of the New York United Federation of Teachers, Local 2, AFT, AFL-CIO, to dismiss this class action, for breach of the duty of fair representation is granted; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of defendants dismissing this action, together with costs and disbursements to defendants, as taxed by the Clerk upon presentation of a bill of costs.

List of Documents:

Maier-docs
Scheinman
Amended Summons and Complaint
Affirmation of Alan Klinger for the UFT
Memorandum of Law - UFT
Opposition - Plaintiffs
REPLY
Notice of Appeal
Pre-Argument Statement

Background of Philip Maier

Re-posted from NYC Rubber Room Reporter:

EXCLUSIVE: Ex-teachers will sue union for retroactive pay under new contract

Educators who resigned before the new teachers contract was ratified will sue the United Federation of Teachers on Monday for their share of retroactive pay. These former educators argue that they're owed retroactive pay from 2009 to 2011, which is when the union was without a contract. Up to 9,000 former employees resigned during that two-year span.

BY STEPHEN REX BROWN,

NY Daily News, 

Monday, July 21, 2014

LINK

http://nydn.us/1jQdbAD
Educators who resigned prior to ratification of the new teachers contract will sue Monday to get their piece of retroactive pay.

Lawyer Daniel Shimko said his fim, Salem and Shimko, will file a class action suit against the United Federation of Teachers seeking retroactive pay for teachers and other eligible Education Department employees who quit their jobs between Oct. 31, 2009, and June 30 before their eligible retirement.

He will argue that the union did not properly represent members when it agreed to exclude educators who quit during that period from some $3 billion in retroactive pay to be doled out under the new contract.

“If you’re going to try and get retroactive wages for retirees, why exclude resignees? They were part of the UFT’s workforce, they paid their dues, they weren’t fired for cause,” said Shimko, who will file in Manhattan Supreme Court.

More than 6,800 teachers quit of their own volition between the 2009-10 and 2011-12 school years, according to a January 2013 article in the union’s newspaper. If similar attrition patterns held for the subsequent year, the number of teachers potentially eligible in the class action suit could approach 9,000.

One of the four initial plaintiffs in the suit, Dianna Morton, 54, said she resigned in 2011 after 14 years as a paraprofessional due to a disability.

“That’s the raise we should have gotten all along — and now we’re not getting it. We deserve it!” said Morton, who worked with special education students, mainly at Public School 73 in Brooklyn.

Morton said she earned about $25,000 when she quit, meaning she’d be eligible to receive $2,040 in back pay if the suit prevails in court.

A spokeswoman for the teachers union would not comment on the potential lawsuit.

The new nine-year contract includes a 4% bump for both 2009-10 and 2010-11 — years teachers went without a contract and other city unions got raises.

Both 2012-13 and 2013-14 come with 1% raises.

With Ben Chapman