Matter of Village of Monticello v AFSCME Local 750-9, Council 66, AFL-CIO
2026 NY Slip Op 04805
July 30, 2026
Appellate Division, Third Department
Fisher, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
In the Matter of Village of Monticello, Petitioner,
v
AFSCME Local 750-9, Council 66, AFL-CIO, et al., Respondents.
Decided and Entered:July 30, 2026
CV-25-1357
Calendar Date: May 27, 2026
Before: Aarons, J.P., Pritzker, Ceresia, Fisher And Mcshan, JJ.
Sussman & Associates, Goshen (Michael H. Sussman of counsel), for petitioner.
AFSCME Council 66, Syracuse (Kerry M. Lightcap of counsel), for AFSCME Local 750-9, Council 66, AFL-CIO, respondent.
Laura H. Delaney, Public Employment Relations Board, Albany, for Public Employment Relations Board, respondent.
[*1]
Fisher, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Public Employment Relations Board finding, among other things, that petitioner committed an improper employer practice.
In 2020, Jay Sherb entered into an employment contract with petitioner, the Village of Monticello (hereinafter the Village), to work as the superintendent of the Village's Department of Public Works (hereinafter DPW) at a specified salary for a period of two years. In July 2021, Sherb and then-mayor and village manager George Nikolados reached an agreement to raise Sherb's salary by $10,000, which had already been approved in the Village's budget. In 2022, Sherb approached respondent AFSCME Local 750-9, Council 66, AFL-CIO (hereinafter the union), proposing that the union vote to recognize his addition to the union under the title of "working supervisor" in the DPW. A representative from the union asked Nikolados if, should the union approve the addition to the bargaining unit, the Village would voluntarily recognize the accretion of the new position. Nikolados responded that the Village would, and the union membership approved the new position by unanimous vote and Sherb began paying union dues. Shortly thereafter, an election overturned the majority on the Village Board and replaced Nikolados as village manager with James Snowden. Snowden and other trustees on the Village Board met with Sherb to request that he leave the union, to which Sherb agreed on the condition that he keep his $10,000 raise. Snowden indicated that he was unaware of the raise, but offered to let Sherb keep $5,000. However, they could not come to an agreement, and, in June 2022, the Village Board adopted a resolution directing Sherb to resign from the union and lowering his salary by $10,000 to his original contracted amount.
The union filed an improper practice charge with respondent Public Employment Relations Board (hereinafter PERB) against the Village, alleging that the attempt to coerce Sherb into forfeiting his union membership by reducing his pay violated Civil Service Law article 14 (hereinafter the Taylor Law). The Village answered and filed a petition for unit clarification, alleging that Sherb had been illegally accreted into the union due to the managerial character of his job. Following a hearing, the Administrative Law Judge (hereinafter ALJ) held that the Village had violated Civil Service Law § 209-a (1) (a), (c) and (d) under the Taylor Law, finding that Nikolados had apparent authority — if not actual authority — to bind the Village to his agreement with the union to recognize Sherb's accretion into the bargaining unit and that the Village's resolution was an improper practice as an attempt to coerce Sherb out of the union. The ALJ ordered the Village to, among other things, refrain from unilaterally altering the composition of the bargaining unit, changing the salary of any member [*2]thereof or requiring anyone to resign, and ordered the Village make Sherb whole for lost pay and benefits. The ALJ further rejected the Village's unit clarification petition, reasoning that only a decertification petition could remove Sherb from the bargaining unit which he had legally joined.
On administrative appeal, PERB affirmed the ALJ's decision, albeit on different grounds. PERB found that Nikolados had actual, rather than apparent, authority to bind the Village under its precedent interpreting the Taylor Law. PERB further affirmed the ALJ's ruling that the Village's resolution was an improper practice and that the clarification petition was an improper mechanism to challenge Sherb's title being accreted into the union. The Village commenced this CPLR article 78 proceeding challenging PERB's determination, which was transferred to this Court.
Initially, we find that PERB's determination that the village manager had actual authority to add the DPW supervisor position into the union is not reviewable under the substantial evidence standard as its determination was based entirely on its own precedent interpreting the Taylor Law (see CPLR 7803 [3]; Matter of Lippman v Public Empl. Relations Bd., 263 AD2d 891, 895 [3d Dept 1999]; see also Matter of Cold Spring Harbor Teachers Assn. v New York State Pub. Empl. Relations Bd., 12 AD3d 442, 444 [2d Dept 2004]). Although the transfer of the issue of the village manager's authority to this Court was therefore not warranted, we retain jurisdiction in the interest of judicial economy (see Matter of Albany Police Benevolent Assn. v New York Pub. Empl. Relations Bd., 202 AD3d 1402, 1404 [3d Dept 2022]; Matter of Lippman v Public Empl. Relations Bd., 263 AD2d at 895).
When interpreting the Taylor Law, "PERB is presumed to have developed an expertise and judgment that requires us to accept its construction if not unreasonable," and "we will not disturb PERB's determination unless it was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (Matter of State of New York v Public Empl. Relations Bd., 137 AD3d 1467, 1468 [3d Dept 2016] [internal quotation marks, brackets and citations omitted]; see Matter of Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd.,21 NY3d 255, 265 [2013]). Relevant here, the Taylor Law defines an " 'agreement' " as "the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization which becomes a binding contract, for the period set forth therein, except as to any provisions therein which require approval by a legislative body, and as to those provisions, shall become binding when the appropriate legislative body gives its approval" (Civil Service Law § 201 [12]). Any such agreement reduced to writing must contain a clause stating that "any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing [*3]the additional funds therefor, shall not become effective until the appropriate legislative body has given approval" (Civil Service Law § 204-a [1]). "[T]he Taylor Law prohibits local legislative bodies from usurping the executive's prerogative to agree with unions on terms and conditions of employment" (Mayor of City of N.Y. v Council of City of N.Y., 9 NY3d 23, 31 [2007]).
The crux of the Village's argument is that the former village manager, Nikolados, lacked the authority to agree to Sherb's accretion into the union. We disagree. In a case nearly factually identical to the present one, PERB interpreted the Taylor Law to mean that the chief executive of a village may unilaterally agree to employees accreting into a union because doing so "simply effectuates the representational rights that they possess" and requires neither the amendment of village laws nor the allocation of additional funds, i.e., actions that would require legislative approval (Matter of Civil Serv. Empls. Assn., Inc. [Incorporated Village of Hempstead], 42 PERB ¶ 3024 [2009]). We discern no basis to find this interpretation unreasonable. Indeed, the Village fails to advance any argument on appeal that we should.FN1 Rather, relying on Matter of Town of Clay v Helsby (45 AD2d 292, 296 [4th Dept 1974]), the Village argues that Sherb's accretion violated longstanding precedent that union recognition is reserved for a town or village board as a legislative action. There is no inconsistency here. Hempstead, citing Clay, affirmed that recognition of a union was reserved to the board, but held that accretion into that union is distinct as a nonlegislative act and may be agreed to unilaterally by the chief executive (see Matter of Civil Serv. Empls. Assn., Inc. [Incorporated Village of Hempstead], 42 PERB ¶ 3024 [2009]). Adding Sherb's title to the bargaining unit represented by the union required neither the allocation of additional funds nor the amendment of any law. We therefore find that PERB's determination that Nikolados, as the Village chief executive, had actual authority to bind the Village to an agreement to Sherb's accretion into the union was neither arbitrary nor capricious nor affected by error of law (see Matter of State of New York v Public Empl. Relations Bd., 137 AD3d at 1468-1469; Matter of Local 589, Intl. Assn. of Firefighters, AFL-CIO v Cuevas, 271 AD2d 535, 536-537 [2d Dept 2000]).
Next, the Village contends that PERB's determination that it committed an improper practice and thereby violated the Taylor Law is not supported by substantial evidence. We are not persuaded. It is well settled that "the public policy of this State in favor of collective bargaining is 'strong and sweeping' " (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 78 [2000], quoting Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 667 [1990]). With this principle in mind, our "review of a PERB [*4]determination following a hearing is limited to whether it is supported by substantial evidence, that is, whether there is a basis in the record allowing for the conclusion that PERB's decision was legally permissible and rational" (Matter of Uniformed Fire Officers Assn. of the City of Yonkers v New York State Pub. Empl. Relations Bd., 197 AD3d 1470, 1472 [3d Dept 2021] [internal quotation marks, brackets and citations omitted]; see CPLR 7803 [4]; Matter of Buffalo Teachers Fedn., Inc. v New York State Pub. Empl. Relations Bd., 208 AD3d 127, 129 [3d Dept 2022]). "A public employer is required to negotiate in good faith with the bargaining representative of its current employees regarding the terms and conditions of employment" (Matter of Uniformed Fire Officers Assn. of the City of Yonkers v New York State Pub. Empl. Relations Bd., 197 AD3d at 1472 [citations omitted]). "The term 'terms and conditions of employment' means . . . salaries, wages, hours and other terms and conditions of employment" (Civil Service Law § 201 [4] [a]). It is an "improper practice" and a violation of the Taylor Law for an employer to "to interfere with, restrain or coerce public employees in the exercise of their rights" to join an employee organization of their own choosing, "to discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any employee organization" or "to refuse to negotiate in good faith with the duly recognized or certified representatives of its public employees" (Civil Service Law § 209-a [1] [a], [c], [d]; see Civil Service Law § 202).
Here, Sherb was paid a higher salary before the election in 2022 and the appointment of the new village manager, Snowden. After that election, Sherb met with Snowden and two other Village Board members who asked him to leave the union, to which Sherb agreed on the condition that he keep his higher salary. Snowden countered with an offer of letting Sherb keep $5,000 of the $10,000 raise if he left the union. When Sherb did not leave, the Village Board passed a resolution revoking Sherb's raise and directing Snowden to order him "to resign forthwith his membership in the labor union." Based on these undisputed facts and our review of the remaining record, Sherb was represented by the union at the time of these occurrences, making the terms and conditions of his employment subject to requirements of the Taylor Law. Threatening his salary unless he left the union and lowering his salary when he refused to do so constituted (1) coercion and interference with Sherb's exercise of his statutory rights, (2) discrimination to discourage his participation in the union and (3) a refusal to negotiate in good faith with the union over the terms and conditions of his employment. Such actions are definitionally improper practices under the Taylor Law (see Civil Service Law §§ 201 [4] [a]; 202; 204 [3]; 209-a [1] [a], [c], [d]). We therefore find that PERB's [*5]determination that the Village violated the Taylor Law is supported by substantial evidence (see Matter of Albany Police Benevolent Assn. v New York Pub. Empl. Relations Bd., 202 AD3d at 1404; cf. Matter of Uniformed Fire Officers Assn. of the City of Yonkers v New York State Pub. Empl. Relations Bd., 197 AD3d at 1473-1474; see also Matter of Village of Scarsdale v New York State Pub. Empl. Relations Bd.,205 AD3d 1031, 1034 [2d Dept 2022]).
The Village also contends that its petition for unit clarification should have been granted based on Sherb's managerial responsibilities, which exempt him from coverage under the Taylor Law. We find this contention to be without merit. The Taylor Law provides PERB broad authority to establish procedures for the resolution of disputes over the representation status of public employees (see Civil Service Law § 205 [5] [a]-[d]). "Employees may be designated as managerial only if they are persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment" (Civil Service Law § 201 [7] [a]). "In excluding managerial and confidential employees from the protection of the Taylor Law, the Legislature cautioned that it was not its intent to destroy existing employer-employee negotiating units, and [PERB] has repeatedly reiterated that the statutory criteria should be applied conservatively and narrowly, and employees should not be excluded except in very clear instances with all uncertainties resolved in favor of Taylor Law coverage" (Matter of Lippman v Public Empl. Relations Bd., 263 AD2d at 896 [citations omitted]). Again, PERB's determination hinged on its own precedent interpreting the Taylor Law and, as such, we review its determination to dismiss the Village's clarification petition under the arbitrary and capricious standard (see id. at 895). This requires only that PERB's construction be reasonable (see Matter of State of New York v Public Empl. Relations Bd., 137 AD3d at 1468).
PERB also relied on Hempstead in dismissing the Village's petition for the proposition that the Village must "file the appropriate application or petition under PERB's Rules of Procedure" if it believed that Sherb was not covered as "managerial or confidential" (Matter of Civil Serv. Empls. Assn., Inc. [Incorporated Village of Hempstead], 42 PERB ¶ 3024 [2009]). Relevant here, a decertification petition "alleg[es] that an employee organization which has been certified or is being currently recognized should be deprived of representation status as to all or part of a unit" (4 NYCRR 201.2 [a]). On the other hand, the purpose of a clarification petition is "to clarify whether a position is encompassed within the scope of [*6]an existing unit" (4 NYCRR 201.2 [b]). PERB has explained that the "criteria used in deciding a certification/decertification or unit placement petition differ markedly from the criteria used to decide a unit clarification petition" (Matter of Syracuse Teachers Assn. [Syracuse City Sch. Dist.],37 PERB ¶ 3003 [2004]). A decertification petition triggers an investigation and an assessment "as to the community of interest shared by the at-issue title and the titles in the petitioned-for unit, including the potential for conflict of interest" (id.). A unit clarification petition, on the other hand, "seeks only a factual determination as to whether a job title is actually encompassed within the scope of the petitioner's unit" (id.; see Matter of Nassau Community Coll. [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 830],55 PERB ¶ 3004 [2022]).
As pertinent here, the Village's clarification petition contended that, because Sherb's position is managerial, he "should immediately be excluded from the union." PERB has squarely rejected substituting a clarification petition for a decertification petition in the past, reasoning that doing so would allow a petitioner "to effectively sidestep the requirements of a petition of decertification" (Matter of International Bhd. of Teamsters Local 693 [Village of Endicott], 48 PERB ¶ 4011 [2015]). This comports with the long-held precedent that the Taylor Law presumes coverage, and exceptions to that presumption are to be construed narrowly (see Matter of NYC Health + Hosps. v Organization of Staff Analysts, 171 AD3d 529, 530 [1st Dept 2019]; Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v New York State Pub. Empl. Relations Bd., 34 AD3d 884, 885 [3d Dept 2006]; Matter of Lippman v Public Empl. Relations Bd., 263 AD2d at 904; Matter of Metropolitan Suburban Bus Auth. v Public Empl. Relations Bd., 48 AD2d 206, 211 [3d Dept 1975], lv denied 37 NY2d 712 [1976]). The Village would have us direct PERB to discard its process for making such a determination in favor of a hand-written, two-page form. We decline to do so and hold that PERB's dismissal of the petition was not arbitrary, capricious nor affected by error of law (see Matter of State of New York v Public Empl. Relations Bd., 137 AD3d at 1468-1469; Matter of County of Erie v New York State Pub. Empl. Relations Bd., 247 AD2d 671, 672-673 [3d Dept 1998]; Matter of Civil Serv. Empls. Assn. v Newman, 90 AD2d 114, 116 [3d Dept 1982]).
Lastly, we grant PERB's counterclaim for enforcement of its determination as its remedy "was not unduly burdensome and seemingly furthered the goal of reaching a fair negotiated result" (Matter of State of New York v New York State Pub. Empl. Relations Bd., 176 AD3d 1460, 1465 [3d Dept 2019] [internal quotation marks, brackets and citation omitted]; see Matter of Board of Educ. of the Newburgh Enlarged City Sch. Dist. v Public Empl. Relations Bd. of the State of N.Y., 243 AD3d 1194, 1197 [3d Dept [*7]2025]). The Village's remaining arguments, to the extent not already addressed, have been considered and found to be without merit or rendered academic.
Aarons, J.P., Pritzker, Ceresia and McShan, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, petition dismissed, and respondent Public Employment Relations Board is entitled to a judgment of enforcement of its remedial order.
Footnotes
Footnote 1
The Village fails to mention PERB's determination that Nikolados possessed actual authority until its reply brief, rendering its challenge to this interpretation of the Taylor Law abandoned (see Matter of Jimeno [Commissioner of Labor], 231 AD3d 1467, 1467-1468 [3d Dept 2024]).