Matter of Fashion Inst. of Tech. v New York State Pub. Empl. Relations Bd.

Matter of Fashion Inst. of Tech. v New York State Pub. Empl. Relations Bd. 2009 NY Slip Op 09510 [68 AD3d 605] December 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of Fashion Institute of Technology, Petitioner,
v
New York State Public Employment Relations Board et al., Respondents.

—[*1] Littler Mendelson, P.C., New York (Bertrand B. Pogrebin of counsel), for petitioner.

David P. Quinn, Albany, for New York State Public Employment Relations Board, respondent.

Office of James R. Sandner, New York (Ann Burdick of counsel), for United College Employees of the Fashion Institute of Technology, respondent.

Determination of respondent New York State Public Employment Relations Board, dated May 20, 2008, which affirmed the decision of its Administrative Law Judge finding that petitioner violated Civil Service Law (Public Employees' Fair Employment Act) § 209-a (1) (d) by unilaterally discontinuing the past practice of computing day adjunct professors' pay per semester on the basis of 16 weeks, and directed petitioner to restore the past practice and to reimburse any wages and benefits lost as a result of the reduction to 15 weeks, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Michael D. Stallman, J.], entered September 25, 2008), dismissed, without costs.

The standard of review here is whether there is substantial evidence to support respondent Board's determination (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 [1978]). The standard was met by evidence showing that the practice of computing day adjuncts' pay per semester on the basis of 16 weeks is subject to collective bargaining (see Civil Service Law § 201 [4]; § 204 [2]), that the practice "was unequivocal and was continued uninterrupted for a period of time under the circumstances to create a reasonable expectation among the affected unit 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 and citations omitted]), and that petitioner had actual or constructive knowledge of the practice.

We find that the remedy of directing petitioner, inter alia, to reimburse any wages and benefits lost as a result of its unilateral change in computation is reasonable (see Civil Service Law § 205 [5] [d]). [*2]

We have considered petitioner's remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Tom, Sweeny, Freedman and Abdus-Salaam, JJ.