New York State's Public Employment Relations Board [PERB], after a hearing, held that New York State Unified Court System's [UCS] failure to engage in collective bargaining negotiations with a certified or recognized employee organization over UCS' COVID-19 testing and vaccine policies were in violation of the Public Employees' Fair Employment Act [the "Taylor Law].
UCS appealed PERB's determination, challenging its "interpretation or application" of the statutes or regulations it relied upon. Supreme Court, applying the "arbitrary and capricious standard", granted PERB's motions to dismiss the UCS petition.
UCS then appealed the Supreme Court's determination but the Appellate Division unanimously affirmed the Supreme Court's ruling, noting that UCS challenged only PERB's "interpretation or application of a statute or regulation". The Appellate Division's decision noted that applying either the arbitrary and capricious standard or the substantial evidence standard PERB had rationally found, based on the record before it, that UCS's procedure implementing its decision to require employees to be tested for COVID-19 and, later, to be vaccinated, "was not excluded from mandatory bargaining with respondent unions".
Citing Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 39 NY3d 17, the Appellate Division explained that even if an employer has the undisputed right to make a particular decision that is not subject to mandatory collective bargaining, "the [employer] must negotiate the procedures necessary to effectuate that right".
Observing that PERB "As the agency charged with implementing the fundamental policies of the Taylor Law, PERB is presumed to have developed an expertise and judgment that requires courts to accept its decisions with respect to matters within its competence" and, citing Civil Service Law §205[5][d], opined that the challenged remedy directing UCS to make bargaining unit members whole for any "loss of pay and/or benefits" suffered was authorized by law, and was "reasonably applied under the circumstances".
Click HERE to access the Appellate Division's decision posted on the Internet.