City of Niagara Falls, NY v New York State Pub. Empl. Relations Bd.

[*1] City of Niagara Falls, NY v New York State Pub. Empl. Relations Bd. 2012 NY Slip Op 50263(U) Decided on January 13, 2012 Supreme Court, Albany County Ceresia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 13, 2012
Supreme Court, Albany County

City of Niagara Falls, New York, Petitioner,

against

New York State Public Employment Relations Board and the Niagara Falls Police Club, Inc., Respondents.



4276-11



Craig H. Johnson

Corporation Counsel and

Attorney For Petitioner

City Hall, 745 Main Street

Niagara Falls, NY 14302-0069

(Christopher M. Mazur, Deputy Corporation

Counsel, of Counsel)

David P. Quinn, Esq.

Attorney For Respondent

Public Employment Relations Board

80 Wolf Road, 5th Floor

Albany, NY 12205

Law Office of William E. Grande

Attorney For Respondent

Niagara Falls Police Club, Inc.

18 Charleston Avenue

Kenmore, NY 14217

George B. Ceresia Jr., J.

On December 10, 1984 the City of Niagara Falls, New York ("City") passed a local law requiring that its employees be City residents. Although amended in 1996, the revisions to the local law made no material change (as relevant here) to the 1984 local law, other than to substitute "City Administrator" for "City Manager". Section 5 thereof, as originally enacted and as amended, provided that if the City Manager/Administrator, after a hearing on notice to the employee, found that the employee was a non-resident, that the employee would be deemed to have voluntarily resigned from his or her employment. It further stated however, that "upon re-establishing residency, an individual having so resigned may apply for reinstatement to his or her former position and shall be reinstated if the position is vacant." At a City Council meeting held on March 9, 2009, the City Council adopted a resolution eliminating this provision from the local law. The Mayor subsequently approved the amendment, and on March 24, 2009 the amendment was filed with the New York State Department of State.

On July 7, 2009 the Niagara Falls Police Club, Inc. ("Police Club") filed an improper practice charge with the New York State Public Employment Relations Board (hereinafter "PERB" or the "Board").[FN1] The Police Club asserted that the City had violated Civil Service Law § 209-a (1) (d), in deliberately engaging in an improper employment practice by refusing to negotiate this matter in good faith. Specifically, it was alleged that the City had unilaterally rescinded a benefit enjoyed by the bargaining unit employees: the right to reinstatement to his or her former position if the position was still vacant when the employee re-established his or her residency. The City filed an answer denying the allegations and asserting that its actions were within its management rights. It maintained that the matter was a nonmandatory subject of bargaining, and that its actions were in accordance with the City local law. In a decision dated January 25, 2011 the Administrative Law Judge found, inter alia, that the employee's right to reinstatement to a vacant position upon re-establishment of residency was a remedy. As such, it was found to be a matter of procedure, which was mandatorily negotiable. The Administrative Law Judge determined that the City had violated Civil Service Law § 209-a (1) (d).

In a decision dated May 27, 2011 PERB affirmed the Administrative Law Judge's finding that the procedure for reinstatement of an employee following reestablishment of residency was subject to mandatory negotiation. It also rejected the City's contention that the City was not required to negotiate the issue because the Police Club did not demand negotiations. With respect to this issue, it found that the duty to negotiate a change in a mandatory subject of negotiations does not require a demand. Finally, PERB found that [*2]Public Officers Law § 30, ¶ 4 (3) (which authorizes a municipality having fewer than two hundred members to adopt local laws establishing residency requirements for police officers) was not applicable, since there was no information in the record with regard to the size of the City's police force. It also found that even if the City's police force had under 200 full time members, Public Officers Law § 30, ¶4 (3) still would not be applicable since it "does not contain language that explicitly or implicitly prohibits negotiations over related procedures and rights with respect to satisfying the residency requirement imposed by the City."

The petitioner commenced the above-captioned CPLR Article 78 proceeding seeking review of PERB's May 27, 2011 determination.

Initially, the Court must note that the petition contains an allegation that the instant determination is unsupported by substantial evidence. Ordinarily, such an allegation would require transfer of the proceeding to the Appellate Division pursuant to CPLR 7804 (g). However, inasmuch as the parties waived their right to a hearing and proceeded upon a written stipulation of fact, the Courts finds that the proceeding need not be transferred to the Appellate Division (see Matter of Sunrise Manor Ctr. for Nursing & Rehabilitation v Novello, 19 AD3d 426 [2d Dept., 2005], Held: transfer to the Appellate Division is improper where there is no dispute as to the facts). The Court will therefore review the determination under the provisions of CPLR 7803 (3), to determine whether it "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion []" (see CPLR 7803 [3]).

Under Civil Service Law ("CSL") § 209-a, an improper practice includes a refusal "to negotiate in good faith with the duly recognized or certified representatives of its public employees" (CSL § 209-a).It is well settled that a public employer commits an improper practice by unilaterally changing a non-contractual practice which relates to existing terms and conditions of employment (see Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, 332 [1998]). As stated in City of Watertown v. State Pub. Empl. Rels. Bd. (95 NY2d 73 [2000]):

"The Taylor Law (Civil Service Law § 200 et seq.) requires public employers to bargain in good faith concerning all terms and conditions of employment (Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480, 485, supra; see also, Civil Service Law §§ 202, 203, 204 [1]). As we have time and again underscored, the public policy of this State in favor of collective bargaining is strong and sweeping' (see, e.g., Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 667; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778). The presumption in favor of bargaining may be overcome only in special circumstances' where the legislative intent to remove the issue from mandatory bargaining is plain' and clear' (Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., supra, at 486), or where a [*3]specific statutory directive leaves no room for negotiation' (Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, at 667)." (City of Watertown v State Pub. Empl. Rels. Bd., supra, at 78-79)

Of particular relevance here, the City of Watertown case goes on to state the following:

"To be sure, where a statute clearly forecloses negotiation' of a particular subject, that subject may be deemed a prohibited subject of bargaining (see, Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, at 667; see also, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., supra, at 778 [school board's authority to make tenure decisions was prohibited subject of negotiation]).1

1The presumption in favor of bargaining might also be overcome by general public policy limitations' (Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 667, supra). However, we have never actually prohibited bargaining or invalidated a collective bargaining agreement' on such a ground, and a public policy strong enough to require prohibition would "almost invariably involv[e] an important constitutional or statutory duty or responsibility"' (id., at 667-668, quoting Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898, 899)

"Alternatively, if the Legislature has manifested an intention to commit' a matter to the discretion of the public employer,' negotiation is permissive but not mandatory (Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, at 669; see also, Matter of Burke v Bowen, 40 NY2d 264, 267 [job security provision held permissive subject of negotiation]). Generally, however, bargaining is mandatory even for a subject treated by statute' unless the statute '"clearly preempt[s] the entire subject matter"' or the demand to bargain '"diminish[es] or merely restate[s] the statutory benefits"' (Lefkowitz, Osterman and Townley, Public Sector Labor and Employment Law, at 498 [2d ed 1998], quoting Matter of City of Rochester [Rochester Police Locust Club], 12 PERB P 3010). Absent clear evidence' that the Legislature intended otherwise, the presumption is that all terms and conditions of employment are subject to mandatory bargaining (see, Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, at 670)." (City of Watertown v State Pub. Empl. Rels. Bd., supra, at 79)

The City of Watertown case (supra) involved an interpretation of General Municipal Law ("GML") §§ 207-a and 207-c which directs that a municipality pay full salary and/or wages to certain municipal employees who are injured in the performance of their duties, until such time as the municipality determines that the employee is well enough to go back to work. The Court of Appeals affirmed the City's right under the foregoing [*4]sections to make the initial determination with regard whether an employee is able to work, and that this determination is not subject to mandatory negotiation. At issue in City of Watertown was the question of whether GML §§ 207-a and 207-c also preclude mandatory bargaining with regard to procedures to review of the initial determination ordering the employee to go back to work. The Court of Appeals held that GML §§ 207-a and 207-c do not remove such review procedures from the "strong and sweeping presumption in favor of mandatory bargaining" (see id., at 76-77).

Of great significance here, Public Officers Law ("POL") § 30 ¶ 1, (d) contains a provision reciting that every office shall become vacant where the incumbent local officer ceases to be an inhabitant of (as relevant here) the municipal corporation of which such officer is required to be a resident when chosen. Paragraph 4 thereof, which applies to members of a police force, sets forth various exceptions to the foregoing, based upon whether the police officer resides in certain contiguous counties (and also within certain specified distances from the municipal corporation). These exceptions may be summarized to apply to (1) a member of a police force as of July 1, 1961; (2) where the police force has over 200 full time members; (3) where a police force has less than two hundred full time members. POL § 30, ¶ 4, (3) contains a further exception applicable to a police force having fewer than two hundred full time members, reciting: "provided, however, that the [] municipal corporation having such police force shall have power to adopt and amend local laws, ordinances or resolutions of general application requiring members of such police force [] to reside in such [] municipal corporation []." (see POL § 30, ¶, [1], [2], [3], emphasis supplied). The City cited this provision in the administrative proceedings before PERB, arguing that it had no obligation to engage in collective bargaining with respect to matters involving the residency of its police officers.

Both the Administrative Law Judge and the Board made a specific finding that the stipulated record failed to mention the size of the City police force (specifically with regard to whether or not the City had fewer than two hundred full time members). This was one of the express reasons given by each with regard to why POL § 30, ¶4 (3) was found to be inapplicable. Notwithstanding the foregoing, the certified record before this Court includes an amended stipulation dated February 25, 2010 [FN2] which contains a new paragraph 8 reciting "[a]t all times relevant to this proceeding, the City has employed fewer than 200 police officers."[FN3] The Court must further note however, that the petitioner does not specifically mention this apparent factual error in the petition (by advancing the [*5]argument that the foregoing finding of the Administrative Law Judge and the Board was incorrect). Nonetheless, the Court finds that the finding was in error, based upon the amended stipulation.

The Court observes that "PERB, as the agency charged with interpreting the Civil Service Law, is accorded deference in matters falling within its area of expertise, including the resolution of improper practice charges" (Matter of Poughkeepsie Professional Firefighters' Association, Local 596, IAFF, AFL-CIO-CLC v New York State Public Employment Relations Board, 6 NY3d 514, 522 [2006], citing Matter of County of Nassau [Nassau Community Coll.] v New York State Pub. Empl. Relations Bd., 76 NY2d 579, 585 [1990]). "However, it has been repeatedly stated that where the question is one of pure statutory construction dependent only on accurate apprehension of legislative intent with little basis to rely on any special competence judicial review is less restricted as statutory construction is the function of the courts" (Matter of Lippman v Public Employment Relations Board, 263AD2d 891, 892 [3d Dept., 1999], quotations omitted).

The starting point of the Court's analysis is the presumption that mandatory bargaining is required (see City of Watertown v State Pub. Empl. Rels. Bd., 95 NY2d 73, supra). Upon review of POL § 30, ¶4 (3), while it clearly authorizes municipal corporations having a police force of under two hundred full time members to adopt laws with respect to the residence of its police officers, the Court does not discern a plain and clear legislative intent to preempt the appointment process for the filling of vacancies created as the result of the non-residency of such officers. This includes a policy or practice to grant preferential rights to officers who subsequently re-establish residency within the City. Nor does the Court discern a legislative intent to preclude collective bargaining with respect to non-contractual benefits which are grafted onto residency laws adopted pursuant to POL § 30, ¶4 (3), such as that at issue here. In this respect, the Court finds no clear preemption of the subject matter (see id.). Thus, even though the Court finds that the Board incorrectly determined that the parties did not stipulate that the City's police force has less than two hundred members (as required in POL § 30, ¶4 [3]), the Court finds that the City did not satisfy its burden of overcoming the strong presumption that this particular term or condition of employment is subject to mandatory negotiation.

Moreover, although not controlling, the Court has considered two instances involving POL § 30, ¶4 (3), where PERB found that there must be mandatory negotiation of issues arising out of residency laws imposed by municipalities having a police force of less than two hundred members. In Matter of Watervliet Police Benevolent Association v City of Watervliet (21 PERB ¶ 4589), the Board found that imposition of a residency requirement for continued employment of police officers in a police force of under 200 full-time members (who were not subject to a residency requirement when hired) is a mandatory subject of negotiation. In Matter of Niagara Falls Police Club, Inc. v City of Niagara Falls (43 PERB ¶ 3005 [2010]) an improper practice charge was upheld by PERB [*6]where the City refused to engage in negotiations with respect to implementation of an appeal procedure to review the City's determination that a police officer is not in compliance with the City's residency requirement. The Board found that while POL § 30, ¶4 (3) authorized the City to unilaterally impose a residency requirement on its police officers, it is silent with regard to implementation of an appeal procedure to review the City's initial determination of non-compliance with a residency requirement. The Board found that because such a determination adversely impacts an employee's terms and conditions of employment, negotiations with respect to an appeals procedure were mandatory.

In this instance, the Board found that the procedure for reinstatement of a non-resident police officer to a still-vacant position (if he or she subsequently established a residence within the City) was a term or condition of employment adopted by the parties as a non-contractual practice, and therefore subject to mandatory negotiation. As a part of the foregoing, the Board found that the procedure was analogous to a preferential recall (which PERB has previously held to be subject to mandatory negotiation). Mindful of the strong presumption that all terms and conditions of employment are subject to mandatory bargaining, the Court determines that the Board finding, that this matter related to a term or condition of employment and was subject to mandatory negotiation, had a rational basis, and was not arbitrary and capricious (see Matter of City of New York v Patrolmen's Benevolent Association of the City of New York, Inc., 14 NY3d 46, at 58 [2009]). Although not expressly alleged in the petition, the Court further finds that the Board properly found that the Police Club did not waive its right to collective bargaining by failing to make a demand (see Matter of Local Union 1969, Civil Service Employees v City School District of City of New York, 40 PERB ¶ 3002 [2007]; Matter of CSEA v Great Neck Water Pollution Control Dist., 28 PERB ¶ 3030 [1995] Held: a demand is not necessary where the employer acts unilaterally to remove a mandatorily negotiable benefit, and rejects the bargaining process).

The Court finds that the determination was not made in violation of lawful procedure, is not affected by an error of law, and is not irrational, arbitrary and capricious, or an abuse of discretion. The Court concludes that the petition must be dismissed, and that PERB's counterclaim to confirm the May 27, 2011 determination and for enforcement should be granted.

Accordingly, it is

ORDERED and ADJUDGED, that the petition is hereby dismissed; and it is

ORDERED and ADJUDGED, that the determination of the Public Employment Relations Board dated May 27, 2011 be and hereby is confirmed, and shall be enforced in accordance with its terms.

This shall constitute the decision, order and judgment of the Court. The original decision, order and judgment are returned to the attorney for respondent New York State Public Employment Relations Board. A copy of this decision, order, judgment and all [*7]other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk, or directly to the County Clerk. The signing of this decision, order and judgment and delivery of a copy of the decision, order and judgment shall not constitute entry or filing under CPLR Rule 2220. The parties are not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.

ENTER

Dated:January 13, 2012/s/ George B. Ceresia, Jr.

Troy, New YorkGeorge B. Ceresia, Jr.

Supreme Court Justice

Papers Considered:

1.Notice of Petition dated June 21, 2011, Petition, Supporting Papers and Exhibits

2.Verified Answer and Counterclaim dated July 29, 2011 of Respondent New York State Public Employment Relations Board

3.Answer dated July 29, 2011 of Respondent Niagara Falls Police Club, Inc.

4.Certified Record Footnotes

Footnote 1: An amended improper practice charge was filed on July 22, 2009.

Footnote 2:The amended stipulation carries a "Received" stamp of the NYS Public Employment Relations Board dated March 1, 2010.

Footnote 3:Although the stipulation does not specify whether the members are full time or part time, this omission is immaterial. The Court interprets the stipulation as indicating that there are less than two hundred total members, whether full time or part time.