Enforcing a PERB order

Enforcing a PERB order
PERB v Westchester County, 280 A.D.2d 849

The Westchester County decision addresses a somewhat rare situation -- a party's claim that it is unable to comply with a PERB order on the grounds of impossibility.

The Public Employment Relations Board [PERB] concluded that Westchester County committed an improper employer practice -- subcontracting nursing services to a private entity. PERB ordered “the unlawfully terminated nurses be restored to the status quo ante and paid lost compensation.”

Westchester did not appeal PERB's ruling within the 30-day limitations period set out in Section 213 of the Civil Service Law. Neither did it take any action to comply with PERB's order. PERB eventually initiated legal action against Westchester seeking a court order enforcing its order.

Westchester asked the court to dismiss PERB's petition, contending that PERB's order was unenforceable “because the facility employing the nurses was removed from [Westchester's] control and replaced by a public benefit corporation.”

The Appellate Division sustained a State Supreme Court's dismissal of Westchester's motion, pointing out that in cases where PERB initiates an enforcement action after the expiration of the 30-day window for review of the merits of a final agency determination, courts are not at liberty to consider “either the determinative or the remedial provisions of the PERB orders.”

Thus, said the court, a party's ability to comply with a PERB order is irrelevant in an enforcement proceeding.

According to the Appellate Division's decision, a party's ability to comply with a PERB order is immaterial to a court's consideration of an enforcement petition, as the facts surrounding a party's failure or inability to comply with the order is a subject to be addressed not during the enforcement proceeding, but during a subsequent contempt proceeding, should one be initiated.