Supreme Court, among other things, dismissed the CPLR Article 78 filed by Rockland County [County] to review a determination of the Public Employment Relations Board [PERB] finding that County had committed an improper employer practice.
For over a decade the certain employees of the County were allowed to obtain prescription medications at no cost or copay when prescriptions were filled at a particular pharmacy. This benefit remained in place even after County switched from being self-insured to being a participant in the New York State Health Insurance Program [NYSHIP]. When the pharmacy closed, County rescinded the prescription drug copayment benefit and the employees commenced having to make copayments for their prescription drugs.
The employee's Collective Bargaining Representatives [Unions*] filed an improper practice complaint with PERB contending that County improperly terminated the benefit of providing full prescription drug coverage for employees. An Administrative Law Judge [ALJ] found that a past practice existed with respect to the prescription drug copayment benefit but agreed with County's contract reversion defense argument** and dismissed the improper practice charges.
Considering the Unions' administrative appeal, PERB reversed the ALJ's ruling in part, agreeing with the ALJ that a past practice existed but rejected the ALJ's acceptance of the County's contract reversion defense. Accordingly, PERB directed the employer to reinstate the prescription drug copayment benefit for all eligible employees and the County commenced the instant CPLR Article 78 proceeding.
Addressing the County's contention that "providing employees full coverage for prescription drugs was not a past practice", the Appellate Division observed that when reviewing PERB's determination of a past practice made after a hearing a court must assess whether substantial evidence supports the determination. In the words of the Court, "PERB found, and the record confirms, that, since 1989, the subject employees did not pay a copayment for prescription drugs and that, even though the County switched from being self-insured to utilizing an insurance plan for employee coverage, this did not change the fact that employees did not have to pay a copayment" and substantial evidence supports PERB's determination that a past practice existed.
Citing Kent v Lefkowitz, 27 NY3d 499, the Appellate Division affirmed PERB's rejection of County's contract reversion defense, explaining "Duty satisfaction occurs when a specific subject has been negotiated to fruition and may be established by contractual terms that either expressly or implicitly demonstrate that the parties had reached accord on that specific subject".***
Although the County's interpretation of the collective bargaining agreements limited its obligations only to the payment of health insurance premiums, PERB found there is nothing in the collective bargaining agreements that discusses the issue of copayments for prescription drugs and there is nothing in the collective bargaining agreements making it reasonably clear that County would not provide the prescription drug benefit. Noting that PERB had concluded the collective bargaining agreements did not explicitly refer to the plan description. and there was no language in the collective bargaining agreements referring to the plan description so as to identify that plan description beyond all reasonable doubt, the Appellate Division opined that the County's "reliance on the doctrine of incorporation is unavailing". Accordingly, the Appellate Division held that PERB is entitled to enforce its remedial order and Supreme Court correctly granted PERB's counterclaim.
* The Superior Officers Council of the Sheriff's Corrections Officers Association of Rockland County and the Rockland County Sheriff's Deputies Association.
** The Appellate Division noted that "Under contract reversion, a form of duty satisfaction, if the parties have reached an agreement on a specific subject following negotiations, a party can end an inconsistent past practice by reverting to the terms of the negotiated provisions relative to that subject."
*** Addressing contract reversion, a form of duty satisfaction, the Appellate Division said "if the parties have reached an agreement on a specific subject following negotiations, a party can end an inconsistent past practice by reverting to the terms of the negotiated provisions relative to that subject" and its was the County's burden to show that "the parties have negotiated terms in an agreement that are reasonably clear on the specific subject at issue".
Click HERE to access the Appellate Division's decision posted on the Internet.