In the Matter of State of New York v. New York State Public Employment Relations Board

CourtNew York Court of Appeals
DecidedFebruary 14, 2023
Docket5
StatusPublished

This text of In the Matter of State of New York v. New York State Public Employment Relations Board (In the Matter of State of New York v. New York State Public Employment Relations Board) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of State of New York v. New York State Public Employment Relations Board, (N.Y. 2023).

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 5 In the Matter of State of New York, Appellant, v. New York State Public Employment Relations Board, et al., Respondents.

Clay J. Lodovice, for appellant. Michael T. Fois, for respondent New York State Public Employment Relations Board. Steven M. Klein, for respondent Civil Service Employees Association, Local 1000, AFSCME, AFL-CIO. Kevin P. Hickey, for respondent New York State Correctional Officers and Police Benevolent Association, Inc.

SINGAS, J.:

Consistent with Civil Service Law § 50 (5), the Department of Civil Service (DCS)

unilaterally implemented application fees for promotional and transitional civil service

exams. We hold that the imposition of such fees was not a term and condition of

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employment as defined in Civil Service Law § 201 (4) and, thus, the State had no obligation

to negotiate those fees under the Taylor Law (see Civil Service Law § 200 et seq.).

The State offers promotional and transitional civil service exams that provide

qualified State employees the opportunity to seek other public employment. Civil Service

Law § 50 (5) generally governs application fees for civil service exams, including

promotional and transitional exams. Section 50 (5) (a) states: “Every applicant for

examination for a position . . . shall pay a fee to the civil service department . . . at a time

determined by it.” “Notwithstanding” section 50 (5) (a), section 50 (5) (b) says that

“the state civil service department, subject to the approval of the director of the budget, . . . may elect to waive application fees, or to abolish fees for specific classes of positions or types of examinations or candidates, or to establish a uniform schedule of reasonable fees different from those prescribed in [section 50 (5) (a)].”

Section 50 (5) (b) also requires that exam fees be waived for certain candidates, including

those who receive public assistance and veterans seeking their “original appointment.”

From at least 1999 until 2009, DCS waived the application fees to take promotional

and transitional exams for employees represented by respondents.1 In 2009, however, DCS

began assessing fees for the exams to defray the cost of processing the applications. DCS

did not collectively bargain regarding the imposition of the fees with respondents prior to

taking such action. Respondents thereafter filed improper practice charges with the New

1 Respondents are Civil Service Employees Association, Local 1000, AFSCME, AFL-CIO; District Council 37, AFSCME, AFL-CIO, Local 1359; and New York State Correctional Officers and Police Benevolent Association, Inc. -2- -3- No. 5

York State Public Employment Relations Board (PERB), alleging that the State violated

Civil Service Law § 209-a (1) (d) by unilaterally implementing the fees.

PERB initially (1) reversed an administrative law judge’s (ALJ) decision dismissing

the consolidated charges and (2) remanded the matter for further proceedings (see 46 PERB

¶ 3032 [2013]). PERB concluded that not charging the subject fees was an enforceable

past practice.

PERB later affirmed a second ALJ decision and ordered the State to (1) stop

requiring employees represented by respondents to pay fees for promotional and

transitional exams and (2) reimburse those employees any money that they paid as a result

of the State’s unilateral imposition of the fees (see 51 PERB ¶ 3027 [2018]). PERB

concluded that waiving the fees for promotional and transitional exams was a term and

condition of employment because it was an “economic benefit” to the employees (id.).

PERB then rejected the State’s arguments that the imposition of the fees is a prohibited or

permissive subject of collective bargaining pursuant to Civil Service Law § 50 (5). Instead,

PERB determined that the subject was mandatorily negotiable and that, as previously

established, the State’s past practice of not charging such fees was enforceable.

The State commenced this CPLR article 78 proceeding seeking to annul PERB’s

determinations. Upon transfer from Supreme Court, the Appellate Division, among other

things, (1) confirmed the determinations and (2) dismissed the petition (see 183 AD3d

1061, 1064 [3d Dept 2020]). The Court held that “the application fee” was a term and

condition of employment because “the employees at issue received an economic benefit by

not having to pay” that fee (id. at 1062-1063). The Appellate Division agreed with PERB’s

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conclusions that the imposition of the fees was a mandatory bargaining subject and that an

enforceable past practice existed (see id. at 1063). We granted the State leave to appeal

(see 37 NY3d 913 [2021]), and now reverse.

The Taylor Law “requires all public employers and employee organizations to

negotiate in good faith to determine represented employees’ terms and conditions of

employment” (Matter of Town of Islip v New York State Pub. Empl. Relations Bd., 23

NY3d 482, 491 [2014]; see Civil Service Law §§ 203, 204 [2]; 209-a [1] [d]). In light of

New York’s “ ‘strong and sweeping’ public policy in favor of collective bargaining”

(Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 39 NY3d 17,

22 [2022], quoting Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd.,

95 NY2d 73, 78 [2000]), “the presumption is that all terms and conditions of employment

are subject to mandatory bargaining” (Matter of City of Watertown, 95 NY2d at 79).

Still, a public employer’s bargaining obligations apply only to “ ‘terms and

conditions of employment,’ ” a phrase defined by statute as “salaries, wages, hours and

other terms and conditions of employment” (Civil Service Law § 201 [4]; see id. §§ 203,

204 [2]). PERB has interpreted this statute to mean—and maintains here—that any

“economic benefit” afforded to employees is a term and condition of employment (Matter

of Whitestown Police Benevolent Assn. [Town of Whitestown], 34 PERB ¶ 4536 [2001];

see Matter of Local 237, Intl. Bhd. of Teamsters [Town of Islip], 44 PERB ¶ 3014 [2011]).

Pointing to Matter of Town of Islip, PERB argues that we adopted its construction that all

economic benefits are terms and conditions of employment. PERB misapprehends our

holding. In Matter of Town of Islip, we merely acknowledged that PERB had determined

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that “employee use of an employer-owned vehicle for transportation to and from work is

an economic benefit and a mandatorily negotiable term and condition of employment” (23

NY3d at 491 [emphasis added]). PERB erroneously reads this language as adopting a per

se rule that any economic benefit is a term and condition of employment.

We reject that rule and conclude instead that PERB’s determination in this case

conflicts with Civil Service Law § 201 (4) and our precedent. This Court has explained

that “form[s] of compensation,” including employees’ health benefits, qualify under the

statute as a term and condition of employment (Matter of Aeneas McDonald Police

Benevolent Assn. v City of Geneva, 92 NY2d 326, 331 [1998]). Further, to be a term and

condition of employment under section 201 (4), an economic benefit must have some nexus

to the employment. For example, in Matter of Town of Islip, the employees’ use of vehicles

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Related

Aeneas McDonald Police Benevolent Ass'n v. City of Geneva
703 N.E.2d 745 (New York Court of Appeals, 1998)
Matter of State of New York v. New York State Pub. Empl. Relations Bd.
2020 NY Slip Op 2839 (Appellate Division of the Supreme Court of New York, 2020)
Town of Islip v. New York State Public Employment Relations Board
15 N.E.3d 338 (New York Court of Appeals, 2014)
City of Watertown v. State of New York Public Employment Relations Board
733 N.E.2d 171 (New York Court of Appeals, 2000)

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