December 18, 2018

The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice


The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice
Spence v New York State Dept. of Transp., 2018 NY Slip Op 08594, Appellate Division, Third Department

Certain employees serving with Department of Transportation [DOT] were assigned state-owned vehicles for work and, in some instances, several employees seeking to use the vehicle for commuting as well as for work was authorized.

Wayne Spence, as President of the New York State Public Employees Federation [Petitioner] filed an improper practice charge with Public Employment Relations Board [PERB] alleging that DOT violated the Taylor Law when it unilaterally discontinued providing state-owned vehicles to some of the employees that had submitted a request seeking be assigned a DOT vehicle . After a hearing, an Administrative Law Judge found that DOT's action constituted a violation of the Taylor Law.

DOT appealed and PERB reversed the Administrative Law Judge's decision. PERB, concluding that because DOT retained the discretion to annually review whether employees should be assigned a state-owned vehicle, such employees could not have a reasonable expectation that they would always be provided one.

Petitioner next files an Article 78 petition with Supreme Court seeking a court order annulling PERB's determination. Ultimately the matter was transferred to the Appellate Division.

The Appellate Division found that:

1. The Taylor Law requires all public employers and employee organizations to negotiate in good faith to determine the terms and conditions of employment of employees in the negotiating unit.

2. Where PERB's determination is made after an administrative hearing, such determination must be supported by substantial evidence.

The court found that the record revealed that DOT's assignment of state-owned vehicles to DOT employees was governed by various criteria set out in a manual that had to be met in order for a state-owned vehicle to be assigned. In addition, the manual required the employee seeking to be assigned a state-owned vehicle to submit a "Form EM-30" and justify his or her need for the state-owned vehicle and its use annually.

PERB concluded that "a past practice of assigning state-owned vehicles with commuting privileges did not exist." In this regard, PERB found that the employees had to annually request such vehicle pursuant to a DOT policy and that DOT retained the discretion to approve or deny such request and, therefore, the employees could not reasonably expect to be assigned a vehicle.

The Appellate Division found that PERB's determination was supported by substantial evidence in the record and although the vehicle requests were routinely approved, that fact did not create a past practice nor divest DOT of its right to exercise its discretion in granting or denying the requests or the use of the vehicle for commuting to and from work.

Citing State of New York Dept. of Correctional Servs. v Kinsella, 220 AD2d 19, the court held that "because PERB's determination is supported by substantial evidence, it will not be disturbed notwithstanding the fact that the record contains evidence that would support a contrary result."

The decision is posted on the Internet at:


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