New York Post

April 17, 2001

State Has Jurisdiction Over NYC Police Labor Disputes, Judge Rules

By John Caher

ALBANY - In a first impression decision that would largely gut the authority of the City Board of Collective Bargaining, a judge in Albany held yesterday that jurisdiction for nearly all labor disputes involving New York City's police and firefighter unions resides with the state Public Employment Relations Board.

Justice Bernard J. Malone Jr., upheld the constitutionality of Chapter 641 of the Laws of 1998, a revised version of a statute that had been declared unconstitutional by the Court of Appeals. The decision is a major loss for the City in an ongoing contract dispute, and has significant implications for both the Giuliani Administration and the 30,000 members of the Patrolmen's Benevolent Association (PBA).

If the ruling survives an anticipated appeal, it would limit the jurisdiction of the Board of Collective Bargaining to disputes over improper practices. It would mean that state Public Employment Relations Board (PERB), not the City agency, will take charge of all dispute resolution procedures and decide whether there is an impasse, appoint mediators and, if necessary, arbitration panels. And it would undermine the City's position that there are some provisions in the now-expired contract that are not subject to collective bargaining.

PBA attorney Peter M. Fishbein, of Kaye, Scholer, Fierman, Hays & Handler LLP in Manhattan, yesterday called on the City to "get serious and enter into dispute resolution proceedings with PERB." However, Mr. Fishbein, who at oral argument had referred to the City Board of Collective Bargaining as a "lapdog" of the City, said he fully anticipates an appeal.

"The PBA's position is that this decision is well-reasoned, sound and persuasive," said Mr. Fishbein. "It is clear that the constitutionality of the statute is going to be upheld and that the interpretation of the statute that PERB has authority over all aspects of the dispute is going to be upheld."

Assistant Corporation Counsel Marilyn Richter said yesterday the City is reviewing the decision and is considering its options.

Patrolmen's Benevolent Association v. Public Employment Relations Board, 7663-00, arises out of the expiration last July of a collective bargaining agreement between the City and the PBA. It is rooted in both the Taylor Law and Chapter 641.

Under the 1967 Taylor Law (Civil Service Law §§200-214), PERB was created to help resolve labor disputes between public employers and public employees. The law also permits localities to establish local bodies, often called "mini-PERBs," to resolve disputes. Thirty-five localities established such bodies, but nearly all of them have been abolished; New York City's mini-PERB, the Board of Collective Bargaining (BCB), is one of only five remaining statewide.

In 1996, the police union lobbied aggressively for legislation that would shift jurisdiction over resolving an impasse from the BCB to PERB, which it viewed as a more favorable forum at that time. The State Legislature enacted the bill and then, in a rare display of autonomy, overrode a veto by Governor Pataki.

Constitutional Issue

However, the Giuliani Administration challenged the law and ultimately won a decision from the Court of Appeals in 1996. The Court, in upholding both the trial court and the Appellate Division, First Department, found in City of New York v. Patrolmen's Benevolent Association, 89 NY2d 380, that the statute violated the home rule provision of the State Constitution. Since the law addressed a parochial rather than statewide concern, it could not be enacted absent a request from the city itself, the Court of Appeals said.

Two years later, the Legislature passed Chapter 641 of the Laws of 1998 in an effort to repair the constitutional infirmities that undermined the original legislation. Unlike its predecessor, Chapter 641 extended PERB's impasse jurisdiction to all organized police and fire departments in the state.

Last November, the City commenced a scope of bargaining proceedings before the BCB. It sought a declaration that several PBA proposals and some provisions of the expired contract were non-mandatory subjects of collective bargaining. Five weeks later, the PBA commenced a declaratory judgment action in Albany County seeking to establish PERB jurisdiction. With PERB, provisions of the expired contract are automatically subject to collective bargaining. With BCB, they are not.

Yesterday's decision resulted from a summary judgment motion by the PBA that Chapter 641 is constitutional, and a cross motion by the City seeking a declaration that the law, like its predecessor, violates the home rule provision.

Justice Malone held that the revised statute survives constitutional scrutiny.

Available to All

"The stated purpose of Chapter 641 is to make PERB's collective bargaining dispute procedures available to all police and firemen unions across the state, despite the wishes of local governments, because the mini-PERB option has not been sufficient in fulfilling the purposes of the Public Employees' Fair Employment Act, at least with respect to public safety employees," Justice Malone wrote. "Chapter 641 prohibits all local governments from compelling a police or firemen's union to conduct impasse resolution before a mini-PERB, rather than PERB."

Justice Malone found that Chapter 641 "treats all local governments alike in meeting the Legislature's purpose of prohibiting local governments from denying access to PERB's impasse resolution procedures to police and firemen's unions."

Both sides in this dispute had agreed that if Justice Malone upheld the law, PERB would have jurisdiction over impasse in negotiations issues, while the BCB would retain jurisdiction over improper practice disputes lodged under Civil Service Law. Where they disagreed, however, was over which entity would have scope of bargaining jurisdiction. The PBA and PERB argued that jurisdiction would lie with PERB; the City and the BCB contended that jurisdiction belonged with the BCB.

"This court construes the effect of the enactment of Chapter 641 to be that PERB has jurisdiction of scope of bargaining and impasse resolution issues arising out of collective negotiations between the City and the PBA, with BCB retaining jurisdiction of improper practice complaints not related to scope of bargaining or impasse resolution," Justice Malone wrote.

Under Justice Malone's decision, the City retains the authority under the Taylor Law to create or not create a mini-PERB. However, even if the City creates such an entity, the police and fire unions can choose the forum they prefer.

In addition to Mr. Fishbein, Michael P. Ravalli of Gleason, Dunn, Walsh & O'Shea PC in Albany represented the PBA. Also appearing were Sandra M. Nathan of Albany for PERB; Stephen C. DeCosta, general counsel, for the BCB; and Ms. Richter for the City.