Opinion
Argued April 21, 1969
Decided May 16, 1969
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, T. PAUL KANE, J.
Jerome Lefkowitz, Martin L. Barr, Jerome Thier and Robert J. Miller for appellants.
Ronald Rosenberg of the District of Columbia Bar, admitted on motion pro hac vice, Julius Topol and Steven J. Goldsmith for intervenor-appellant.
John T. DeGraff, John Carter Rice and Frederick Riester for respondent.
Melvin H. Osterman, Jr., for State of New York, intervenor.
Order affirmed, without costs. The public importance of the issues raised in the proceeding requires prompt adjudication.
All concur, Judge SCILEPPI in a memorandum and Judges BREITEL and JASEN in a memorandum, except Chief Judge FULD who dissents and votes to reverse and to reinstate the judgment of Special Term in an opinion; Judge KEATING taking no part.
Although I believe that the controversy herein should be resolved without undue delay, I am not disposed to restrain petitioners from pursuing such remedies as may be legally available to them.
In concurring for affirmance we agree, however, with the Chief Judge that the elections should proceed forthwith in accordance with the board's determination defining the appropriate units.
I would reverse the order appealed from and reinstate the judgment of Special Term.
The Public Employment Relations Board's definition of the appropriate employer-employee negotiating units — pursuant to subdivision 1 of section 207 of the Civil Service Law — in the course of a proceeding to resolve disputes concerning representation status still pending, is neither an order within the meaning of section 210 (subd. 4) of that statute nor a final determination within the sense of CPLR 7801. In my judgment, review may be had only of the board's ultimate resolution of those disputes by its certification or recognition of the appropriate employee organizations. Actually, to sanction the present attack on the board's intermediate decision — but the first step of an investigative process which will, hopefully, lead to settling the representation status in issue — serves no purpose except to invite piecemeal judicial review and intolerable delay. In that connection, I would only add that the elections to ascertain the organizations which the employees choose to be their representatives should proceed forthwith, without stay or restraint, in accordance with the board's determination defining the appropriate units.
Order affirmed, etc.
Motion to vacate the statutory stay dismissed as academic (see CPLR 5519).