Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute

Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute
Town of Islip v New York State Pub. Empl. Relations Bd., 2014 NY Slip Op 06322, Appellate Division, Second Department

The Town of Islip had discontinued assigning vehicles to certain employees for their use in commuting between home and work. The employee organization filed an improper practice charge with the Public Employment Relations Board [PERB] and PERB issued a decision requiring 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," and [2] “make whole unit employees for the extra expense incurred as a result of the unilateral withdrawal of the vehicle assignments, if any, together with interest as the maximum legal rate.”

The Appellate Division issued a judgment dated March 13, 2013 confirming PERB’s determination.* The Town appealed and the Court of Appeals modified the Appellate Division’s decision and judgment** “with directions to remand the matter to the New York State Public Employment Relations Board for further proceedings in accordance with its opinion.

The Court of Appeals had determined that the remedial order issued by PERB in this matter was "unduly burdensome under the circumstances, and d[id] not further the goal of reaching a fair negotiated result." 

The Court of Appeals explained that courts review “the remedies imposed by PERB with deference to its expertise” and courts should sustain a remedy fashioned by PERB for an improper practice “if reasonable.” However, said the court, “[i]t is for the courts to examine the reasonable application of PERB's remedies.”

In this instance the Court of Appeals determined PERB's remedial order requires the Town to “[f]orthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008.” However a PERB injunction was not sought to preserve the status quo ante, and” the Town sold some or all of the cars formerly permanently assigned to blue- and white-collar unit employees.” Accordingly, PERB order, said the court, would force the Town to invest significant taxpayer dollars to replace these vehicles, holding that this would be “unduly burdensome under the circumstances, and does not further the goal of reaching a fair negotiated result.”

The court cited Matter of Manhasset Union Free School Dist., 61 AD3d 1231, in explaining its ruling.

In Manhasset the Appellate Division held that enforcing a PERB order for the school district to restore the personnel and facilities of its former transportation department was unreasonable where the district had sold its buses and leased its garage, and compliance with the order might require taxpayer approval. The Appellate Division then remitted 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 school district to purchase a whole new fleet of vehicles with an uncertain future."

As to the Islip appeal, the Appellate Division held that “in light of the determination of the Court of Appeals, we remit the matter to PERB for further proceedings in accordance with that determination.”

* Town of Islip v PERB, 104 AD3d 778.

** Town of Islip v PERB, 23 NY3d 482

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06322.htm
.