Friday, June 06, 2014

Court of Appeals deferred to PERB’s expertise with respect to its holding the employer had engaged in an improper employer practice but ruled its remedy was unreasonable

Court of Appeals deferred to PERB’s expertise with respect to its holding the employer had engaged in an improper employer practice but ruled its remedy was unreasonable
Town of Islip v New York State Pub. Empl. Relations Bd., 2014 NY Slip Op 04043, Court of Appeals

The Town of Islip filed a CPLR Article 78 petition challenging the New York State Public Employment Relations Board's [PERB] ruling that Islip violated Civil Service Law §209-a when it when it unilaterally discontinued the practice of permanently assigning Town-owned vehicles to certain employees. 

The employees in question had been permitted to use these so-called "take home" vehicles to travel from home to work and back — i.e., to commute to work. Section 209-a (1) (d) makes it an improper practice for a public employer to refuse to negotiate in good faith with the bargaining agent for its public employees. Likewise, the Court of Appeals concluded that PERB reasonably applied precedent when making its determination, which determination was supported by substantial evidence.*

PERB’s Administrative Law Judge had held that Islip had violated Civil Service Law §209-a (1) (d) by canceling "take home" vehicle assignments without negotiation -- a clear and unequivocal 20-plus year practice -- and had ordered the Town to:

1. Restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008.

2. "Make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the vehicle assignment(s), if any, together with interest at the maximum legal rate"; and

3. To sign and post a notice in the workplace to inform employees of the remedies ordered.

PERB ultimately affirmed ALJ's ruling and the remedy ordered.

The Appellate Division held that "substantial evidence supported PERB's determination that the permanent assignment of Town-owned vehicles to the affected employees constituted a past practice as to a term or condition of employment, a mandatory subject of negotiation, which the Public Employees' Fair Employment Act (Civil Service Law Article 14), known as the Taylor Law, barred the Town from unilaterally discontinuing" [see 104 AD3d 778, (2013)].

As to the remedies imposed by PERB the Court of Appeals said that with, deference to its expertise, "a remedy fashioned by PERB for an improper practice should be upheld if reasonable," although "[i]t is for the courts to examine the reasonable application of PERB's remedies." However the Court of Appeals ruled that PERB's remedial order was unreasonable insofar as it requires the Town to restore vehicle assignments to the affected employees.

In this instance the court concluded that PERB's remedial order requires the Town to "[f]orthwith restore the vehicle assignments for commutation between home and work to those unit member who enjoyed the benefit prior to April 4, 2008." However, notes the decision, a PERB injunction was not sought by the employees’ representative to preserve the status quo ante and Islip had sold some or all of the vehicles formerly permanently assigned to blue- and white-collar unit employees, thus forcing Islip to invest “significant taxpayer dollars to replace these vehicles is unduly burdensome under the circumstances, and does not further the goal of reaching a fair negotiated result.” 

Consistent with this view, the Court of Appeals remanded the matter to PERB so that it “may fashion a remedy that grants commensurate, practical relief to the employees subject to the improper practice without requiring the Town to purchase a whole new fleet of vehicles with an uncertain future.”

Judge Pigott dissented, indicating that, in his view, the issue in this appeal was whether a public employer must collectively bargain its way out of a previous policy that is plainly in violation of a duly-enacted local law.

Judge Pigott noted that the relevant Chapter Islip’s Town Code was adopted in December of 1968 and, “apparently, as amended from time to time by the elected Town Board, has functioned without incident ever since.” Section 14-12 of the Town Code provides in its entirety as follows: "No officer or employee shall request or permit the use of Town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business" (emphasis supplied in the opinion).

Judge Pigott, concluding that PERB’s determination should be annulled and vacated, said:

1. Essentially, PERB's decision trumps a local law and requires the Town to bargain its way out of an illegal activity;

2. This is contrary to law [as] "Illegal past conduct does not, and should not, evolve into binding terms and conditions of employment”;

3. Were it so, sloppy bookkeeping, lax supervision and perhaps, in some cases, rife favoritism could form the basis of a policy by which PERB could overrule a duly-enacted local law; and

4. The conduct engaged in by the Town and its employees was against the law and PERB's determination could not make it legal.

* The Court of Appeals said that the scope of its review in this case was “limited to whether PERB's determination that Islip had engaged in an improper practice was ‘affected by an error of law’ or was ‘arbitrary and capricious or an abuse of discretion’ (see CPLR 7803 [3]) and PERB is accorded deference in matters falling within its area of expertise" such as in "cases involving the issue of mandatory or prohibited bargaining subjects."

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.


Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to

Copyright© 1987 - 2017 by the Public Employment Law Press.


N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.