April 13, 2017

Employer's reimbursing its retirees' Medicare Part B premiums for 20+ years held to be a past practice within the meaning of the Taylor Law

Employer's reimbursing its retirees' Medicare Part B premiums for 20+ years held to be a past practice within the meaning of the Taylor Law
Albany Police Officers Union, Local 2841, Law Enforcement Officers Union Dist. Council 82, AFSCME, AFL-CIO v New York Pub. Empl. Relations Bd., 2017 NY Slip Op 02719, Appellate Division, Third Department

Since the late 1980s, the City of Albany [City] consistently reimbursed Albany Police Officers Union [Union]members for their Medicare Part B monthly premiums upon their retirement.

In October 2008, the City sent a notice to all retirees of various changes to the City's available health plans. As to Medicare Part B reimbursements, the notice advised the retirees that "[u]nder the City's current policy, the City will reimburse you the Medicare Part B premium on a monthly basis."

A separate notice of the same date was distributed to the active members similarly advising them of various changes to the offered health plans but did not mention anything about Medicare Part B reimbursements.

In October 2009, the City sent a notice to all retirees advising them again of changes to the offered health plans. This notice, however, further stated that, as of December 31, 2009, "the City would no longer reimburse Medicare Part B premiums whose effective date for Part B was January 1, 2010." In addition in October 2009 a notice was sent to all active members in the negotiating unit that also advised them of changes to the offered health plans but, once again, omitted any reference to Medicare Part B premium reimbursements.

The Union filed an improper practice charge with the Public Employment Relations Board (PERB) alleging that the City violated Civil Service Law §209-a(1)(d) by, among other things, unilaterally discontinuing the practice of reimbursing Medicare Part B monthly premiums to retirees.

After a hearing, a PERB Administrative Law Judge (ALJ) dismissed the charge holding that no violation of the Civil Service Law had occurred because "retirees are not covered by the [Public Employees' Fair Employment Act] and the City has made no announcement to current bargaining unit members of its intention to cease . . . and/or terminate certain Medicare Part B premium reimbursements."

PERB sustained the ALJ's determination, but on different grounds, concluding that the Union failed to carry its burden of establishing the existence of past practice. PERB said that the October 2008 notices "eliminated or altered various plans and benefits" and, therefore, interrupted any past practice of reimbursement of Medicare Part B monthly premiums.

In addition, PERB also found that the phrase, "under the City's current policy," as provided in the October 2008 notice to retirees, "served to provide notice that such policy [of reimbursing Medicare Part B premiums] could not be relied upon to continue indefinitely."

The Union appealed PERB's ruling.

Addressing the merits of the Union's appeal, the Appellate Division said "whether the reimbursement of Medicare Part B premiums was a past practice depends on whether such '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.'" The Appellate Division then explained that "[T]he expectation of the continuation of the practice is something that may be presumed from its duration with consideration of the specific circumstances under which the practice has existed."

Reviewing PERB's decision to ascertain if it was supported by substantial evidence, the court concluded that a rational basis does not exist to support PERB's determination that the claimed "past practice" had been interrupted.

The City, said the Appellate Division, has been reimbursing the retirees for their Medicare Part B monthly premiums for over 20 years. At the hearing before PERB, several witnesses testified as to their understanding and expectation that the City would reimburse them for their Medicare Part B monthly premiums upon their retirement and "that such reimbursements would continue for the rest of their life."

The court's decision also noted that one witness testified that in the course of collective bargaining with the City, the issue of reimbursement for Medicare Part B monthly premiums was raised but the City felt it was unnecessary to formalize such benefit into the collective bargaining agreement "because everyone knew that it would last "forever."

In contrast, PERB, relying on the notices sent to retirees and to the active members of the Union by the City, determined that a past practice of reimbursements did not exist based on the documentary evidence in the record. The Appellate Division disagreed, concluding that such documentary evidence did not provide "a rational basis to support the findings upon which [PERB's] determination is predicated."

The court pointed that although the October 2008 notice that was sent specifically to active members advised them of various changes to the health plans offered by the City, it was entirely silent as to the reimbursement of Medicare Part B premiums. Furthermore, said the court, the October 2008 sent to the retirees could not have apprised union's active members that the reimbursement of Medicare Part B monthly premiums would not continue indefinitely because this notice was sent only to retirees, a group of former employees not represented by the Union.

Thus, ruled the Appellate Division, PERB's conclusion that the Union never objected to the City's proposed modifications of Medicare Part B reimbursements lacks evidentiary support inasmuch as the Union's active members did not have notice of any potential changes to which an objection could be lodged.

Indeed, said the court, "even if [the Union] or its active members had received adequate notification," the five words — "under the City's current policy" — do not constitute substantial evidence connoting either the absence of a past practice of reimbursing Medicare Part B monthly premiums by the City, especially when the record as a whole demonstrates that there was no formal policy for such reimbursements and the City continually reimbursed the retirees for such monthly premiums for a significant period of time, or that such practice would only be temporary."

Finding that PERB's determination was not supported by substantial evidence, it was  annulled by the Appellate Division.

The decision is posted on the Internet at:


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