August 01, 2022

An administrative determination by the Public Employment Relations Board made following an administrative hearing will be sustained if it is supported by substantial evidence

In response to a threat by an individual that "I'm coming tomorrow with a gun to shoot up this ...." school, a teacher at the school and the building delegate chairperson for employee organization [Union] representing the teachers announced that there was going to be a meeting in her classroom. During that meeting or shortly thereafter, 10 teachers called "out of work for the following day" and ultimately, a total of 23 teachers employed at the school called in sick and were absent from work the next day.

The district conducted an investigation and concluded that 16 of the 23 teachers absent from work had engaged in an unlawful strike. The district then filed a notice and a charge with the Public Employment Relations Board [PERB] alleging the Union had violated Civil Service Law §210(1) by engaging in an unlawful strike against the district.

Following a hearing, a PERB Administrative Law Judge [ALJ] sustained the charge, determining that Union had engaged in an unlawful strike in violation of Civil Service Law §210(1). PERB ultimately affirmed the ALJ's decision, holding that the Union had "engaged in, caused, encouraged, instigated, and condoned an unlawful strike by unit members." The Union challenged the PERB's ruling and initiated a CPLR Article 78 proceeding, contending that PERB's determination was not supported by substantial evidence.

Noting that Civil Service Law Article 14, commonly referred to as the Taylor Law, provides that "[n]o public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike," the Appellate Division opined that "an employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his [or her] duties in his [or her] normal manner without permission, on the date or dates when a strike occurs" is presumed to have engaged in such strike on such date or dates.

The issue before the Appellate Division was whether PERB's administrative determination, which was "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law," was "supported by substantial evidence."

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the Appellate Division explained that "[T]he substantial evidence standard is a minimal standard" that is "less than a preponderance of the evidence, and demands only that a given inference is reasonable and plausible, not necessarily the most probable."

Further, said the court, "[I]t is the responsibility of the administrative agency to weigh the evidence and choose from among competing inferences therefrom and, so long as the inference drawn and the ultimate determination made are supported by substantial evidence, it is not for the court to substitute its judgment for that of the administrative agency," citing Matter of Watson v New York State Justice Ctr. for the Protection of People with Special Needs, 152 AD3d 1025.

Deferring to PERB's credibility determinations, the Appellate Division said that although there is evidence that could support an alternate conclusion, "there is substantial evidence in the record to support PERB's determination that the Union caused, encouraged, instigated, and/or condoned an unlawful strike by 16 of its unit members at the school" and thus "there is no basis upon which to disturb the determination" made by PERB.

Significantly, to the extent that PERB and, or, the ALJ suggested that a finding of an unlawful strike may be negated by a "justification defense" or excepted by a "bona fide fear of personal injury," the Appellate Division opined that it did not find such a defense or exception to have been created by the Article 14 of the Civil Service Law or relevant case law, citing Local 252, Transp. Workers Union of Am. AFL-CIO v New York State Pub. Empl. Relations Bd., 58 NY2d 354. 

Click HERE to access the text of the Appellate Division's decision.

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