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October 18, 2021

Stipulation that the City's unilateral actions impacted current employees deemed substantial evidence sufficient to annul PERB's decision involving retired employees

General Municipal Law §207-a provides that a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the full amount of his or her regular salary or wages until the disability has ceased." It further provides that in the event a firefighter is granted "an accidental disability retirement allowance," pursuant to Retirement and Social Security Law §§363, 363—c or similar accidental disability pension, the appointing authority shall pay "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages" provided, however, that in any such case   such firefighter shall continue to receive from the municipality or fire  district by which he or she is employed, until such time as  he  or  she  shall  have  attained the mandatory service retirement age applicable to  him or her or shall have attained the age or  performed  the  period  of  service  specified  by  applicable law for the termination of his or her  service,  the  difference  between  the  amounts  received  under   such  allowance  or  pension  and  the  amount of his or her regular salary or  wages [Emphasis supplied].

The Uniformed Fire Officers Association of the City of Yonkers [UFOA] and Yonkers Firefighters Local 628, IAFF, AFL-CIO [Local 628] represent firefighters and fire officers that are employed by the Yonkers Fire Department. The City of Yonkers [City] had been paying all active bargaining unit members of Local 628 and UFOA night differential, check-in pay and holiday pay as part of their regular salary and wages. Throughout that period, retired firefighters and fire officers that receive supplemental wage benefits pursuant to General Municipal Law §207-a (2) have also received night differential, check-in pay and holiday pay as a component of their regular salary and wages.

In 2015, the City sent a letter to approximately 43 retired firefighters and fire officers who were receiving General Municipal Law §207-a(2) supplemental wage benefits, indicating that they had received benefit payments in excess of what they were entitled and that their future payments would be adjusted downward to omit night differential, check-in pay and holiday pay. Local 628 and UFOA separately filed improper practice charges with respondent Public Employment Relations Board (hereinafter PERB), the body charged with administering the Public Employees' Fair Employment Act, alleging that the City violated Civil Service Law §209-a (1) (a) and (d) by unilaterally ending the past practice of paying night differential, check-in pay and holiday pay to current members who would be eligible to receive supplemental wage benefits under General Municipal Law § 207-a (2) upon their future retirement.

The improper practice charges were consolidated for review and, following a two-day hearing, an Administrative Law Judge [ALJ] determined, among other things, that the City violated its obligation "to negotiate in good faith with the duly recognized or certified representatives of its public employees" by unilaterally ceasing its past practice of including night differential, check-in pay and holiday pay as part of the regular salary and wages for those current employees who, upon retirement, would be entitled to General Municipal Law §207-a(2) benefits

The City filed exceptions with PERB, which reversed the ALJ's determination, concluding that the City was not prohibited from taking unilateral action with respect to retired employees and that no proof was presented to show that it had impermissibly taken similar action against current employees.

Local 628 and UFOA thereafter filed a CPLR Article 78 petitions contending that, among other things, that PERB's determination impermissibly exceeded the scope of the City's exceptions and that it engaged in sua sponte fact-finding that ran counter to the parties' stipulations of fact. The City moved to dismiss the petitions. Supreme Court denied the City's motions to dismiss, finding that UFOA and Local 628  had raised an issue of substantial evidence, transferred the joined proceedings to the Appellate Division.*

The Appellate Division, noting that a public employer is required to negotiate in good faith with the bargaining representative of its current employees regarding the terms and conditions of vacated PERB's ruling, explained that "as the parties stipulated that the City's unilateral actions impacted current employees in the bargaining units, PERB's finding that the record was barren of proof on that point is not supported by substantial evidence, and it follows that PERB's determination must be annulled."

* See CPLR 7804 [g].

Click HEREto access the Appellate Division's decision.

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