In the Matter of the Arbitration between the City of Oswego, Appellant, -and- Oswego City Firefighters Association, Local 2707, Respondent.BriefN.Y.February 13, 2013To Be Argued By: Mimi C. Satter, Esq. Time Requested: 30 minutes STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of CITY OF OSWEGO, Petitioner-Appellant, To Vacate An Arbitrator's Award Pursuant to Article 75 of the Civil Practice Law and Rules -against- OSWEGO CITY FIREFIGHTERS ASSOCIATION, LOCAL 2707, Respondent-Respondent. Appellate Division Docket No.: 11-01941 Oswego County Index No.: 11-351 BRIEF OF RESPONDENT-RESPONDENT Mimi C. Satter, Esq. Sarah E. Ruhlen, Esq. SATTER & ANDREWS, LLP Attorneys for Respondent-Respondent 217 S. Salina Street, 6th Floor Syracuse, New York 13202 Tel.: (315)471-0405 Fax: (315) 471-7849 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................... iii PRELIMINARY STATEMENT ....................................... 1 STATEMENT OF THE QUESTIONS ON APPEAL ...................... 2 FACTS AND PROCEDURAL BACKGROUND ......................... 4 ARGUMENT ...................................................... 6 Point I: Point II: The City Does Not And Cannot Meet The Rigorous Burden Required For Vacatur ......... 6 A. The Award Is Not In Conflict With Law Or Policy Because, Pursuant To Triborough, The Terms Of The CBA Were "In Effect" ................... 9 B. The Award Does Not Conflict With Any Prohibition Over The Negotiation Of Retirement Benefits ...... 13 C. Triborough Is Not Preempted, Superseded, Or Repealed ................................. 15 Vacating The Award Will Result In An Unconstitutional Impairment Of Contract . . . . . . . . . . . . . . . 19 Point III: The City's Brief Contains Additional Errors Of Law And Fact ..................................... 24 A. Triborough Does Not Create Perpetual Contracts .... 24 B. Documents Not Submitted To The Arbitrator Cannot Be Considered By This Court ............ 28 C. The Retirement System's Opinions Are Not Entitled To Deference ..................... 30 CONCLUSION ................................................... 32 ii TABLE OF AUTHORITIES Page Association of Surrogates and Supreme Court Reporters v. State of New York, et al., 79 N.Y.2d 39 (1992) ......... 9-12, 16-18,20-22,25 City of Johnstown v. Johnstown Police Benevolent Ass 'n, 99 N.Y.2d 273 (2002) .......................................... 14, 15 Cobleskill Cent. School Dist. v. Newman, 105 AD.2d 564 (3d Dept. 1984), appeal denied, 64 N.Y.2d 1071 (1985) .................. 25 Condell v. Bress, 983 F.2d 415 (2d Cir. 1995) ........................... 20 County of Niagara v. Newman, 104 AD.2d 1 (4th Dept. 1984) ............ 9,25 D. S. Alamo Associates v. Commissioner of Finance, 71 N.Y.2d 340 (1988) ............................................. 30 Energy Reserves Grp. v. Kan. Power & Light Co., 459 U.S. 400 (1983) .............................................. 19 General Motors Corp. v. Romein, 503 U.S. 181 (1992) .................... 19 IBEWv. Time Warner Cable, 2010 N.Y. Misc. LEXIS 325 .................. 7 Ling Ling Yung v. County of Nassau, 77 N.Y.2d 568 (1991) ................ 16 Matter of Angello v. Labor Ready, Inc., 7 N'y.3d 579 (2006) ............... 30 Matter of Arbitration between City of Plattsburgh and Plattsburgh Police Officers Union Local 82, 250 AD.2d 327 (3rd Dept. 1998) ............................................... 14 iii Matter of Board of Trustees v. Maplewood Teachers' Ass 'n, 57 N.Y.2d 1025 (1982) ............................................. 25 Matter of Campbell v. New York City Tr. Auth., 32 A.D.3d 350 (1 5t Dept. 2006) ...................................... 28 Matter of Cardeon v. N. Y Central Mut. Fire Ins. Co., 17 A.D.3d 1037 (4th Dept. 2005) ..................................... 29 Matter of Central Gen. Hosp. v. Hanover Ins. Co., 49 N.Y.2d 950 (1980) ............................................. 29 Matter of City of Buffalo and Buffalo Policemen's Beneficial Assoc., 13 A.D.3d 1202 (4th Dept. 2004) ................................ 8 Matter of City of Yonkers v. Yonkers Fire Fighters, Local 628, 90 A.D.3d 1043 (2d Dept. 2011 ...................................... 12 Matter of Cohoes Police Officers Local 756 v. City of Cohoes, 263 A.D.2d 652 (3 rd Dept. 1999) ...................................... 8 Matter of Daimler Chrysler Corp. v. Spitzer, 7 N.y'3d 653 (2006) .......... 15 Matter of Dutchess County Dept. of Soc. Svcs. v. Day, 96 N.Y.2d 149 (2001) .............................................. 16 Matter of Eastman Assoc 's, Inc. v. Juan Ortoo Holdings, Ltd., 90 A.D.3d 1284 (3 rd Dept. 2011) ..................................... 29 MatterofFalzonev. N.Y Mut.Firelns. Co., 15 N.y'3d 530 (2010) ............................................ 6,8 Matter of Foley v. Bratton, 92 N.Y.2d 781 (1999) ........................ 16 Matter of Goodman v. Barnard College, 95 N.Y.2d 15 (2000) ........... 16,25 IV Matter of Hirsch Constr. Corp. [Cooper}, 181 AD.2d 52 (1st Dept. 1992); Iv denied 81 N.Y.2d 701 (1992)) ................... 28,29 Matter of Kiernan, 62 N.Y.457 (1875) ................................. 16 Matter of Kowaleski v. New York State Dept. Of Correctional Svcs., 16 N.Y.3d 85 (2010) .......................................... 6 Matter of Monroe Co. Dpty. Sheriff's Assoc. v. Monroe Co., 300 AD.2d 993 (4th Dept. 2002) ...................................... 7 Matter ofN. Y City Transit Authority v. Transport Workers Union, 14 N.y'3d 119 (2010) ............................................. 28 Matter of New York State Correctional Officers and Police Benevolent Assoc., Inc. v. State of New York, 94 N.Y.2d 321 (1999) ...... 8,28 Matter of Niagara County v. Power Authority of State of New York, 82AD.3d 1597 (4th Dept. 2011) ......................... 18 Matter of NYC Transit Auth. ["NYCTA "} v. Transport Workers Union of America, 99 N.Y.2d 1 (2002) ........................ 7,8 Matter of NYC v. Floyd, 26 Misc. 3d 1240A (N.Y. Co. 2010) ................ 6 Matter of Old Brookville Policemen's Benevolent ASSOciation, 16 PERB 3094 (1983) ............................................. 14 Matter of Professional Staff Congress-City University of New York v. New York State Public Employment Relations Board, 7 N.y'3d 458 (2006) .................................... 9,25,26 Matter of Soc. Svc. Employees Union (SSEU) v. NYC Health and Hospitals Corp., 2012 N.Y. Misc. LEXIS 2956 (N.Y. Co. 2012) ..................... 6 Matter of Trump-Equitable Fifth Ave. Co., 62 N.Y.2d 539 (1984) ........ 30,31 v Matter of United Federation of Teachers v. Board ofEduc. Of City of New York, 1 N.y'3d 72 (2003) ............................... 8,28 Moran Towing & Transp. Co. v. New York State Tax Comm., 72 N.Y.2d 166 (1988) ............................................. 30 Power & Light Co., 459 U.S. 400 (1983) ............................... 20 Roberts v. Tishman Speyer Properties, L.P., 13 N.Y.3d 270 (2009) .......... 16 Sprinzen v. Nomberg, 46 N.Y.2d 623 (1979) ........................... 6-8 State of NY (Office of Parks and Recreation), 27 PERB y,,3001 (1994) ....... 26 Town ofHuntingtonv. Associated Teachers, 30 N.Y.2d 122 (1972) .......... 14 Town of Southampton v. NY State Pub. Empl. Rels. Bd., 2 N.y'3d 513 (2004) .............................................. 25 United States Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977) ....... 19 United Steel Workers v. Warrior & GulfNav. Co., 363 U.S. 574 (1960) ................................................ 7 Waterford-Halfmoon Union Free Sch. Dist., 27 PERB y,,3070 (1994) ............................................ 27 Yatauro v. Mangano, 17 N.y'3d 420 (2011) ......................... 15, 16 VI PRELIMINARY STATEMENT Despite the efforts of petitioner/appellant City of Oswego ["City" or "Oswego"] to frame the question before the Court as involving a fundamental conflict between the 2009 amendment to the Retirement and Social Security Law ["RSSL"], creating Tier V for certain public employees, and the Triborough Doctrine ["Triborough"], which continues the terms of an otherwise expired collective bargaining agreement while the parties negotiate a successor agreement, the fundamental matter at-issue is narrow and necessarily limited in scope. Before this Court is an action by the City to vacate a labor arbitration award, which award is entitled to all the deference accorded typically to the voluntary resolution of disputes in the manner contractually selected by the parties. Contrary to the City's framing of the issues, resolution of this case does not involve, nor does the law permit, extended legal analysis, fact-finding, nor any type of de novo review that minimizes or casts aside the primacy of the labor arbitrator in dispute resolution. Relatedly, despite the City's alarmist predictions, confirmation of the award will not reverberate across the State, nor will it undermine public finances in Oswego or elsewhere. In the underlying arbitration proceeding, the Arbitrator interpreted the collective bargaining agreement ["CBA"] between respondent-respondent Oswego City Firefighters Association, Local 2707 ["Union" or "Firefighters"] and the City in a manner compatible with existing law and public policy. The City's contentions that the recently enacted Tier V legislation, N.Y. L 2009, Ch. 504, Art. 22, §8 ["Ch. 504" or "Section 8"], and Triborough, codified in §209-a(1)(e) of the Civil Service Law! ["CSL"] are incompatible, or that the December 6, 2010 Arbitration Award ["Award"] violates CSL §201(4) and RSSL §470, which prohibit generally the negotiation of retirement benefits, are both without merit. While the Union acknowledges the economic conditions faced by municipalities and that the Tier V legislation was prompted by concerns re same, those difficulties cannot be used as a guise to vacate the Award which otherwise interprets rationally the parties' CBA. Further, vacatur would, in essence, sanction an unconstitutional impairment of the CBA. Accordingly, it is respectfully submitted that the Appellate Division, Fourth Department, held correctly when it affirmed the denial ofthe petition to vacate and, in so doing, confirmed the Award. STATEMENT OF THE QUESTIONS ON APPEAL 1. Was the decision of the Appellate Division, Fourth Department, correct when it held that the at-issue Arbitration Award should be confirmed because it does not violate public policy? IApplicable sections of the CSL are known, colloquially, as the "Taylor Act." 2 Yes. The Appellate Division recognized that a) Triborough requires that the terms of an expired CBA must remain in effect until the parties negotiate a successor; b) RSSL Section 8 refers to CBAs which are "in effect;" and c) therefore, Triborough and Section 8 are compatible. Thus, the Award, which is grounded in the consonance between Section 8 and Triborough, does not violate a strong public policy and must be confirmed. 2. Was the decision ofthe Appellate Division, Fourth Department, correct when it held that no conflict exists between the Award and RSSL §470 or CSL §201(4)? Yes. Although RSSL §470 and CSL §201(4) prohibit certain bargaining over retirement benefits, they have no bearing on the matter at bar since a) the disputed contractual term was negotiated pursuant to RSSL §384-d, which allows firefighters and municipalities to negotiate over retirement benefits; and b) the parties were not engaged in negotiations when they submitted interpretation of Article 26.1 of the CBA to arbitration. Thus there is no conflict between the Award and law. 3. Would vacatur of the Award violate the Contract Clause, Article I, Section 10 of the United States Constitution? Yes. Decades of Triborough precedent establishes that the contract in question was "in effect" after its expiration. If Section 8 is construed to contradict 3 Triborough, such reading will create a substantial impairment, which is neither reasonable nor necessary, to the pre-existing contractual relationship between Oswego and the Firefighters. FACTS AND PROCEDURAL BACKGROUND The Union represents all full-time, professional firefighters employed by the City, except the Chief. Record on Appeal p. 20 at ~2 [hereinafter "R._''}; R. 161 at ~2. The Union and City have been parties to a series ofCBAs, including one effective from January 1, 2007 through December 31, 2009 which, pursuant to Triborough, discussed infra, remained in effect at all times pertinent. R. 21 at ~4; R.161 at ~4. Article 26.1 of that CBA provides in relevant part: The City will pay an Employee's cost in the New York State Police and Fireman's Retirement System under the current and existing plans of which they are a member. Effective January 1, 1995 the City agrees to add Plan 384-d (20 year) to the current plans available to Employees in the unit. R.21 at ~5; R.161 at ~5. Article 26.1 has been in the CBA in the above form since the 1993-95 Agreement. R.20 at ~6; R.161 at ~6. On or about January 19, 20 I 0 the City hired Donald Rockwood as a probationary Firefighter. R.22 at ~13; R.162 at ~J3. When, notwithstanding the clear mandate in Article 26.1, supra, the City declined to pay Rockwood's "cost in the New York State Police and Fireman's Retirement System," instead deducting 4 3% from his wages for contribution to the Retirement System and claiming this was required by Chapter 504 of the Laws of2009, the Union filed a grievance. R.21-3 at ~~9, 14 and 15; R.162 at ~~9, 14 and 15. Consistent with the procedures in the CBA, the parties selected Arbitrator Ronald Kowalski, Ph.D., to resolve the grievance. R.23 at ~17; R.162 at ~17. Prior to submitting the matter to arbitration, counsel for the City asserted the grievance lacked merit, referencing correspondence from the Retirement System. R. 63. The Union replied that pursuant to the CBA it is an arbitrator, not the Retirement System, who has authority to resolve grievances, including over retirement benefits. R.64. Absent a stay of arbitration, which the City never sought, the Union asserted its intent to proceed to arbitration. Id. Ultimately based on a stipulated record and without the necessity of a hearing, the City and Union submitted the grievance to Arbitrator Kowalski for resolution. R. 23 at ~18; R.162 at ~18. By decision dated December 6,2010, Arbitrator Kowalski concluded the City was obligated to make pension contributions for Firefighter Rockwood, as demanded in the grievance. Now, when the very issue to which the City agreed to resolution by the Arbitrator has 5 been decided against it,2 the City asserts that the entirely predictable outcome must be vacated on the grounds of public policy. ARGUMENT Point I The City Does Not And Cannot Meet The Rigorous Burden Required For Vacatur Pursuant to CPLR §7511(b )(1 )(iii), the grounds for vacating an arbitration award are limited to instances when an arbitrator exceeds hislher power or so imperfectly executes it that a final and definite award is not made. Matter 0/ Kowaleski v. New York State Dept. O/Correctional Svcs., 16 N.y'3d 85, 90 (2010); Matter o/Falzone v. N.Y Mut. Fire Ins. Co., 15 N.y'3d 530, 534 (2010). An arbitrator is considered to have exceeded his/her power only if s/he has made an award that violates strong public policy, is totally irrational or exceeds a specifically enumerated limitation on the arbitrator's power. Matter 0/ Kowaleski, 16 N.Y.3d at 90. The award will not be set aside simply because the arbitrator commits an error oflaw or fact. Sprinzen v. Nomberg, 46 N.Y.2d 623,629-30 2There were two possible decisions by the Arbitrator: Either Firefighter Rockwood was entitled to join a special plan on a non-contributory basis or he was not. The Arbitrator concluded the former. If the City truly believed the former finding violated public policy, it should have moved to stay arbitration. It did not. 6 (1979); Matter of NYC Transit Auth. ["NYCTA ''j v. Transport Workers Union of America, 99 N.Y.2d 1,6-7 (2002). Judicial restraint in this regard is necessary to preserve "the policy of allowing parties to choose a non-judicial forum, embedded in freedom to contract principles." Matter ofSprinzen v. Nomberg, 46 N.Y.2d at 630. Preservation of the parties' choice is particularly important in the context of public sector collective bargaining, where public policy encourages employees and employers to agree upon dispute resolution procedures in order to prevent labor strife. NYCTA, 99 N.Y.2d at 7. As recognized by the U.S. Supreme Court in one of the seminal Steelworkers trilogy cases and subsequently quoted by this Court, an arbitrator is selected by both labor and management because of '" [his] expertise in the area of labor disputes, and both labor and management 'trust in [his] personal judgment.... The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance ... because [the judge] cannot be similarly informed.' Id. at 8, quoting United Steel Workers v. Warrior & GulfNav. Co., 363 U.S. 574, 582 (1960). Thus a labor arbitrator has special insight into the "relationship, needs ofthe parties, [and] conditions .. .in the specific bargaining unit" which are reflected in hislher award. !d. 7 An award may be vacated as against public policy only if A) a court can conclude "without engaging in any extended factfinding or legal analysis" that a law "prohibits, in an absolute sense, the particular matters to be decided," or B) the award itself violates a well-defined constitutional, statutory, or common law of the State. Matter of United Federation of Teachers v. Board ofEduc. Of City of New York, 1 N.y'3d 72, 80 (2003); see also, Sprinzen, 46 N.Y.2d at 631 and NYCTA, 99 N.Y.2d at 11. If an award does not "create[] an explicit conflict with other laws and their attendant policy concerns," then there is no basis for this prong of public policy vacatur. Matter of New York State Correctional Officers and Police Benevolent Assoc., Inc. v. State of New York, 94 N.Y.2d 321,327 (1999) (emphasis in original) (citations omitted). "Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator's decision." Matter of Falzone v. New York Mut. Fire Ins. Co., supra, 15 N.Y.3d. at 534; see also Matter of Cohoes Police Officers Local 756 v. City of Cohoes, 263 A.D.2d 652,653 (3 rd Dept. 1999); Matter of City of Buffalo and Buffalo Policemen's Beneficial Assoc., 13 A.D.3d 1202, 1202 (4th Dept. 2004). Herein the City seeks vacatur, arguing the Award conflicts with State law. As demonstrated below, based on incontrovertible law and facts, this asserted 8 public policy justification fails. Thus vacatur must be denied and the Award enforced. A. The Award Is Not In Conflict With Law Or Policy Because, Pursuant To Triborough, The Terms Of The CBA Were "In Effect" New York CSL §209-a(1)( e) continues and preserves the terms of collective bargaining agreements that expire while unions and public employers negotiate successor agreements. This section, known as the "Triborough Amendment" or "Triborough Doctrine," protects both public employees and public employers by maintaining the status quo while new agreements are negotiated. See, e.g., Matter of Professional Staff Congress-City University of New York v. New York State Public Employment Relations Board, 7 N.Y.3d 458,466 (2006); see also, County of Niagara v. Newman, 104 A.D.2d 1, 4-5 (4th Dept. 1984). CSL §209-a(1)(e) states, in relevant part, [it] shall be an improper practice, for a public employer ... ( e) to refuse to continue all the terms of an expired agreement until a new agreement is negotiated .... A union loses the protection of Triborough only if it engages in a strike. Association of Surrogates and Supreme Court Reporters v. State of New York, et aI., 79 N.Y.2d 39, 45 (1992). 9 Chapter 504, Section 8, the other statute at issue herein, provides in relevant part that nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan ... pursuant to a collectively negotiated agreement with any ... local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however that any such eligibility shall not apply upon termination of such agreement.... Emphasis supplied. Critical to the matter at-bar is the interplay between Triborough, which speaks of continuing the terms of "an expired agreement," and Section 8, which references agreements "in effect on the effective date of this act and so long as such agreement remains in effect." Resolution turns on whether an expired collective bargaining agreement, whose terms "continue" pursuant to Triborough, is an agreement "in effect" for purposes of Section 8. Albeit in a slightly different context, this question was resolved decisively by this Court in Association of Surrogates 79 N.Y.2d at 45-46. At issue in Association of Surrogates was the State's enactment of a statute, creating a five-day lag payroll for employees covered by collective bargaining agreements. 79 N.Y.2d at 43. The primary question before the Court was whether the law violated the Contract Clause of the U.S. Constitution. Id. at 44. The State 10 argued there was no violation because the at-issue union contracts had expired. Id. This Court disagreed. Id. at 45. Explaining that "[t]he threshold issue is whether a valid and subsisting contract existed between the parties," the Court agreed with the lower courts that "although the stated term ofthe contracts had been completed, the contracts continued thereafter pursuant to CSL § 209-a(1)(e)." Id. at 44-45. The Court recognized that by enacting Triborough, the legislature intended, "not for the terms and conditions of employment" to continue, "but that the terms of the 'expired agreement' shall continue." Id. at 45.3 Just as the public employer in Association of Surrogates did, herein the City posits that because the CBA was expired, it was no longer "in effect." Accordingly the City contends, Chapter 504 absolves it of any contractual obligation to contribute toward new employee participation in RSSL Plan §384-d, despite that Article §26.1 of the CBA requires same. To the contrary, as explained by the Court in Association of Surrogates, under Triborough the expiration of a CBA does not render it "not in effect." In its Brief to this Court, the City refers to collective bargaining agreements as "in effect," "unexpired" and "not terminated" as ifthese terms are 3The City's efforts to distinguish Association o/Surrogates are wholly ineffective, as discussed at Point II, infra., pp. 21-23. 11 interchangeable.4 They are not. Consistent with Triborough, as interpreted by Association a/Surrogates, an agreement can be "expired" or "terminated," yet remain "in effect." If in enacting Chapter 504, §8, the Legislature intended to address rights pursuant to a labor agreement existing under Triborough, it would have defined coverage in terms of "expired" and "unexpired" agreements. Yet it did not. Instead, the Legislature used "in effect," which has both a distinct meaning under and is entirely consistent with Triborough. Accordingly, Tier V contemplates an employer's continued obligation to contribute toward collectively bargained participation in a special plan so long as the CBA is "in effect," which it was in the 4The City conflates and confuses these concepts with such regularity, it can hardly be accidental. See, BriefofPetitioner-Appellant at p. 2 ("[o]nly collective bargaining agreements unexpired on January 9, 2010 are excepted from Tier V"); p. 13 ("[Section S] applies only to collective bargaining agreements actually in effect;" "it does not apply when the agreement has terminated or otherwise expired"); p.lS ("the law specifically forbids provisions ... of expired agreements from binding municipalities ... "); p. 24 ("Tier V legislation ... mandates that because the CBA had expired. .. new employees must contribute 3% ... "); emphasis supplied in various of the quotes. None of these statements reflect accurately what the law actually says. Ch. 504, §S. The City also misstates or glosses over other important details in its recitation of facts, laws and decisions. See, Brief of Petitioner-Appellant p. 4 (stating the CBA "terminated on December 31, 2009"); p. 21 (citing Matter of City of Yonkers v. Yonkers Fire Fighters, Local 628,90 A.D.3d 1043 (2d Dept. 2011), a case currently pending before this Court); p. 22 (referring broadly to the legislative history of Chapter 504 for the proposition that the Legislature intended to repeal Triborough when, in fact, the history cited in the City's brief makes nary a mention ofCSL §209-a(1)(e) or Triborough). 12 matter at-bar. Thus the Award does not violate public policy and, therefore, should not be vacated. B. The Award Does Not Conflict With Any Prohibition Over The Negotiation Of Retirement Benefits The City argues that the Award violates public policy because CSL §201(4) and RSSL §470 prohibit negotiation of a change in retirement benefits. Brief of Petitioner-Appellant, p. 23. This argument fails for two distinct, yet equally dispositive, reasons: I) a separate section of the RSSL allows public employers with organized police and fire departments to negotiate participation in certain special retirement plans, including at non-contributory rates; and 2) the issue here is the arbitration of a contractual provision that lawfully provides pension benefits-not its present negotiation. Thus, there is no violation. Each point is addressed seriatim. The Union does not dispute that RSSL §470 prohibits negotiations between public unions and employers regarding changes in retirement benefits or payments. Similarly, CSL §201( 4) states that terms negotiated with respect to benefits provided by a public retirement system, or payments into the retirement system, are void. These statutes, however, are both modified by RSSL §384-d, which allows public employers with organized police and fire departments to elect 13 to provide certain special plans, including at non-contributory rates. Precedent establishes clearly there is no "statutory, decisional or administrative prohibition" against negotiating over whether to provide those special plans. Matter of Old Brookville Policemen's Benevolent Association, 16 PERB 3094 (1983);5 see also, Town of Huntington v. Associated Teachers, 30 N.Y.2d 122 (1972); Matter of Arbitration between City of Plattsburgh and Plattsburgh Police Officers Union Local 82, 250 A.D.2d 327, 329 (3rd Dept. 1998). Article 26.1 ofthe Firefighter/Oswego CBA was negotiated pursuant to RSSL §384-d. Thus the at- issue provision is not in violation ofRSSL §470 or CSL §201(4). Moreover, even if negotiation over participation in the special plans were prohibited, arbitration of same is not. This distinction was made by the Court in a case strikingly similar to that at-bar, City of Johnstown v. Johnstown Police Benevolent Ass 'n, 99 N.Y.2d 273, 278-79 (2002). In Johnstown, the union and employer negotiated certain retirement benefits prior to the State's enactment of Tier II. After Tier II was enacted, when the union grieved and sought to arbitrate application of the contract terms to Tier II members, the employer sought a stay of arbitration. This Court examined the provision of the RSSL which forbade submitting a retirement demand to interest arbitration, juxtaposed to the 5Copies of PERB decisions are attached hereto. 14 submission of the interpretation and application of such an existing provision to grievance arbitration. Id. at 279. The Court determined that "no statutory, constitutional or public policy bar" prohibited the parties from submitting the interpretation of the clause in question to grievance arbitration. Id. Here, the Award interpreted and applied Article 26.1 ofthe CBA. R. 97- 106. There was no issue over the negotiation of the terms of Article 26.1, which occurred nearly two decades earlier. R. 65-68. Thus, consistent with the power accorded him in the CBA, the Arbitrator simply interpreted an existing contract provision. R. 98. As a result, there was no improper negotiation of prohibited terms relative to retirement benefits. C. Triborough Is Not Preempted. Superseded. Or Repealed The City contends that CSL §209-a(1)(e) is preempted, superseded, and/or repealed by Chapter 504. Brie/o/Petitioner-Appellant, pp. 17-19. As demonstrated below, any such claim must fail as Triborough and Chapter 504 are not in conflict. Therefore the rules of statutory construction do not support preemption, supersession or repeal. A court's primary consideration when presented with statutory interpretation is "to ascertain and give effect to the intention of the Legislature." Yatauro v. Mangano, 17 N.y'3d 420,426 (2011), quoting Matter o/Daimler 15 Chrysler Corp. v. Spitzer, 7 N.y'3d 653,660 (2006) (other citations omitted). "The starting point for discerning legislative intent is the language of the statute itself." Yatauro, 17 N.y'3d at 426, quoting Roberts v. Tishman Speyer Properties, L.P., 13 N.y'3d 270, 286 (2009). If there is any way to harmonize two statutes related to the same matter, it must be done. Matter of Dutchess County Dept. of Soc. Svcs. v. Day, 96 N.Y.2d 149, 153 (2001); see also Yatauro, 17 N.Y.3d at 427. A general law only yields to a later, specific or special statute ifthe two laws are inconsistent. Matter of Kiernan, 62 N.Y.457, 460 (1875); Ling Ling Yung v. County of Nassau, 77 N.Y.2d 568,570 (1991); Matter of Dutchess Co., 96 N.Y.2d at 153; Yatauro, 17 N.y'3d at 427. It is not the function of the court ... to declare one statute the victor over another if the statutes may be read together, without misdirecting the one, or breaking the spirit of the other. Matter of Goodman v. Barnard College, 95 N.Y.2d 15, 21 (2000), quoting Matter of Foley v. Bratton, 92 N.Y.2d 781,787 (1999). In Association of Surrogates, 79 N.Y.2d at 45, this Court addressed whether deferred payroll legislation repealed Triborough, ultimately concluding it had not. This Court observed that the statute in question contain[ ed] no express repeal, its terms [did] not conflict with those of Section 209-a( 1)( e) and it contain[ ed] no other language from which an intent to repeal [could] be inferred. 16 Id. Therefore, the statute did not preempt or supersede Triborough. Id. Here, equally, the two laws can be harmonized easily. CSL §209-a(1)(e) provides in relevant part that [it] shall be an improper practice, for a public employer ... (e) to refuse to continue all the terms of an expired agreement until a new agreement is negotiated .... Chapter 504, §8 provides in relevant part that nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan ... pursuant to a collectively negotiated agreement with any ... local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however that any such eligibility shall not apply upon termination of such agreement.... A simple reading of Chapter 504, §8 confirms it does not expressly repeal Triborough. Nor do the terms of Section 8 conflict with those of Triborough, since Section 8 speaks of an agreement that is "in effect," whereas Triborough provides a mechanism for dealing with "expired" agreements whose terms "continue." Consistent with Association o/Surrogates, Triborough survives easily the implementation of a law with which it is not in conflict. The City argues that Triborough is repealed because Section 8 begins with the phrase "notwithstanding any provision of law to the contrary," which according to the City evidences the Legislature's intent that no law could be a 17 source for allowing new hires to participate in non-contributory plans under an "expired" contract. Brief of Petitioner-Appellant, pp. 17-19. But the phrase indicates nothing ofthe kind because Section 8 does not reference "expired" agreements, but rather those "in effect." Thus no such repeal occurred. Pursuant to Triborough, as explained by Association of Surrogates, the CBA between the Union and City was "in effect" when Firefighter Rockwell was hired and, therefore, pursuant to Section 8 he is entitled to non-contributory status. The City's reliance on Matter of Niagara County v. Power Authority of State of New York, 82 A.D.3d 1597 (4th Dept. 2011) is misplaced as well. Indeed, Niagara County actually supports the Firefighters' contention that, because Section 8 does not conflict with Triborough, it does not repeal it. ("To the extent that the .. .legislation ... conflicts with any provision of the Power Authority Act, we agree ... that the latter must yield to the former." 82 A.D.3d at 1601 (emphasis added». Herein the Fourth Department concluded that the verbal formulation "notwithstanding any law to the contrary" means exactly what it says: it expresses only the Legislature's intention to preempt "any other potentially conflicting statute." Id. at 1601 (emphasis added). Because, as demonstrated at Point I A, supra, the two laws are not in conflict, there can be no preemption, supersession, or repeal. 18 Point II Vacating The Award Will Result In An Unconstitutional Impairment Of Contract The "Contract Clause" provision of Article I, § 1 0 ofthe U.S. Constitution weighs heavily in favor upholding the Award. Specifically the Contract Clause prohibits states from enacting legislation that impairs retroactively the rights and obligations of parties under a contract. United States Trust Co. a/New Yorkv. New Jersey, 431 U.S. 1 (1977). Impairment is constitutional only if it is reasonable and necessary to serve an important public purpose. Id. at 25. The Supreme Court has articulated a multi-prong analysis for determining whether legislation resulting in contract impairment is constitutional. The first question is whether the state law operates as a substantial impairment to pre- existing contractual relationships. General Motors Corp. v. Romein, 503 U.S. 181, 186 (1992). This, in turn, raises three sub-questions: a) whether there is an underlying contractual relationship; b) whether the newly enacted law impairs that relationship; and b) whether the impairment is substantial. Id. If the answers to the foregoing are affirmative, then the second question is whether the state has a significant and legitimate purpose behind the regulation. Energy Reserves Grp. v. 19 Kan. Power & Light Co., 459 U.S. 400, 411-412 (1983); Condell v. Bress, 983 F.2d 415,418 (2d Cir. 1995). Association 0/ Surrogates is again instructive. As discussed above, the Court of Appeals first determined that a CBA which had expired, but nonetheless was still "in effect" under Triborough, was a valid contract for purposes ofthe Constitutional protections of the Contract Clause. Association o/Surrogates, 79 N.Y.2d at 45-46. Then the Court considered whether the lag payroll law unconstitutionally impaired an existing contract. Id. at 46. Finding an impairment and concluding it was substantial, the Court "examined [the impairment] in light ofthe nature and purpose of the State legislation," concluding it could be upheld only "if it [was] reasonable and necessary to accomplish a legitimate public purpose." Id. The payroll legislation, which resulted in withholding an employee's wages, was found not to be "reasonable and necessary: " [t]he choice of which revenue-raising or revenue-saving devices should be used is for others, not the courts, but the menu of alternatives does not include impairing contract rights to obtain forced loans to the State from its employees. Id. at 47. 20 The Court held that the impairment from the five day payroll lag was substantial "to one confronted with monthly debt payments and daily expenses for food and the other necessities oflife." Id. Even though the employees would recoup the unpaid portion of their salaries when they left public service, that the salary was not available for daily necessities was enough to constitute a substantial impairment. Id. Herein, interpreting Section 8 as a repeal of Triborough will, inter alia, cause a 3% loss of salary for the affected firefighters. This is a substantial loss to the impacted employees who are already at the bottom of the pay scale as new hires. Additionally, such a holding will irreparably undermine the parties' dispute resolution procedure and it will impact the role of the Union as the collective bargaining representative of all firefighters, including the new hires. Moreover, it is not "reasonable and necessary" for the Tier V legislation to be read as a repeal ofTriborough, and squeezing 3% from the salaries of the few employees hired during the Triborough status quo period will not produce a substantial amount of revenue, even if such "forced loans" were on the "menu of alternatives." Association o/Surrogates, 79 N.Y.2d at 47. The City attempts to distinguish between the matter at-bar and Association o/Surrogates by noting that Association o/Surrogates "involved the impairment 21 ofa state contract." BriefofPetitioner-Appellant, p. 16. This is a distinction without a difference. The contract herein is between the Union and a government entity, just as the contract in question in Association of Surrogates was a contract between a labor organization and a government entity. Both contracts are governed by the Taylor Law and established rules of statutory construction. Both cases involve a government entity attempting to produce revenue by violating the contractual rights of public employees. Thus the fact that the employers in the two cases are different government entities is no basis for a distinction on the question of how the Taylor Law affects the operation ofthe contract. The City attempts also to distinguish between Association of Surrogates and the case at-bar by noting that the law in question in Association of Surrogates applied to current employees, while the law here applies to new hires. Brief of Petitioner-Appellant, p.16. The City refers to legislative history for the proposition that N.Y. L 2009, Ch. 504, Art. 22 §8 does not run afoul of the Contract Clause because it only applies to new hires. Id. The City insists that being hired on or after January 9,2010 means that the new employees are required to contribute 3% to their retirement. Id. Nevertheless, the City concedes that employees hired on or after January 9,2010 are members of the Union who are protected by the CBA (Brief of Petitioner-Appellant p. 16) and that at least some new hires after January 22 9,2010 are allowed to participate in non-contributory retirement plans. Thus the City admits the State has enacted no across-the-board prohibition. Because the new employees are members of the Union who are protected by the CBA, and because the foregoing analysis shows that Triborough leaves the terms of an expired CBA "in effect" for purposes of Section 8, the City's contract clause argument fails. First, the CBA is a contract between the City and Union, and all members of the bargaining unit are protected by it, regardless of hire date. Second, Section 8 states explicitly that some new hires, to wit, those whose unions have contracts "in effect" with their public employers on the effective date of the Act, are excluded from the new Tier V. Third, that Section 8 carves out an exception for employees hired under contracts "in effect" shows the drafters understood that, unless they provided that exception, the law would constitute an impermissible impairment of contracts. Therefore, reading Chapter 504 as a repeal of Triborough constitutes an unconstitutional impairment of contract rights for employees who, under Triborough, are still entitled to have 100% oftheir retirement contributions paid by the City. 23 Point III The City's Brief Contains Additional Errors Of Law And Fact In addition to the foregoing, the Brief of Petitioner-Appellant contains numerous errors of fact and law. These include, inter alia, asserting Triborough creates CBAs which last in perpetuity; contending Triborough creates disincentives to unions to negotiate successor agreements; urging the Court to rely on documents and "evidence" not before the Arbitrator; and arguing the "opinions" of the Retirement System are entitled to some precedential or compelling weight. Each is addressed seriatim. A. Triborough Does Not Create Perpetual Contracts The City asserts that Triborough results in collective bargaining agreements which continue "in perpetuity" (Brief of Petitioner-Appellant, pp.l, 18) resulting, in turn, in a situation where there is "no need for the Union to bargain for a successor agreement." Id., at p. 18. Coupled with veiled references to the "profound" cost ofthe Award and "spiraling pension costs," (Id., at p. 1), the City endeavors to portray catastrophic consequences if the Award is not vacated. As demonstrated infra, the City's professed concerns are not supported by law or fact. 24 First, if Triborough produces the dire consequences attributed it by the City, it is hard to imagine it surviving for three decades and being sanctioned repeatedly by this Court. See, e.g., Matter of Board of Trustees v. Maplewood Teachers' Ass 'n, 57 N.Y.2d 1025, 1027 (1982); Cobleskill Cent. School Dist. v. Newman, 105 A.D.2d 564, 565 (3d Dept. 1984), appeal denied, 64 N.Y.2d 1071 (1985); Association of Surrogates, 79 N.Y. 2d at 44-46; Goodman v. Barnard College, 94 N.Y.2d at 22; Town of Southampton v. NY State Pub. Empl. Rels. Bd., 2 N.y'3d 513,521 (2004); PSC-CUNY, 7 N.Y.3d at 467-68. If its application is truly devastating for public employers, it is the role ofthe Legislature, not this Court, to repeal it. That this has not occurred shows that Triborough does not produce the results the City attributes to it. Rather, Triborough protects both public sector unions and employers. See, e.g., PSC-CUNY, 7 N.y'3d at 466; County of Niagara, 104 A.D.2d at 4-5. Moreover, even under Triborough, collective bargaining agreements do terminate. Through bargaining, specific provisions can be removed from the protections ofTriborough; and notwithstanding Triborough, unions have strong incentives to negotiate successor agreements. In short, the City'S assertions do not withstand scrutiny. 25 When parties negotiate collective bargaining agreements, they do so with full knowledge and awareness ofTriborough. Thus, unless they say otherwise, it is presumed the parties intend the terms to remain in effect after expiration of the contract pursuant to Triborough. State ofN. Y (Office of Parks and Recreation), 27 PERB ~3001 (1994). This Court has explained, The concern that continuation of [a contract term] after expiration of a [CBA] will result in [it being in effect] 'in perpetuity' is unfounded .... [A party] may propose that [a term] be amended ... to include a sunset clause that would allow negotiation of the topic during the status quo period. Since it is subject to the give and take of collective bargaining, the [term] is no more likely than any other term of the parties' [CBA] to continue in perpetuity. Matter of PSC-CUNY, 7 N.y'3d at 469. Consistent with the foregoing, ifthe parties do not want terms to continue following the expiration date, they can demand a "sunset clause." Such a provision causes a specific term to end at a pre-determined time set by the parties. See, Matter of PSC- CUNY, 7 N.Y. 3d at 467 (noting that PERB has long held that parties can prevent CBA terms from continuing after expiration by using language that causes the term to sunset, e.g., "until the commencement ofthe negotiations for a successor to this agreement," "for the life of this agreement" or "this provision will sunset on [date] unless renewed by the parties.") Sunset clauses are 26 recognized "in any circumstances in which it can be concluded reasonably that the parties intended to restrict...a given term of their collective bargaining agreement." Waterford-Halfmoon Union Free Sch. Dist., 27 PERB ~3070, 3160 (1994). Finally, unions have powerful incentives to negotiate successor agreements, notwithstanding Triborough. After all, employees want wage increases and other enhancements, which are often unlikely to occur absent agreement on a successor contract. Continuing an agreement indefinitely does not normally result in such increases or other desired changes. Herein, the City asserts that pursuant to Triborough, expired agreements will "bind[J municipalities in perpetuity" and that "there would be no need for the Union to bargain a successive agreement." Brief of Petitioner-Appellant, p. 18. The reality is that Triborough only maintains the status quo until a new contract is bargained; the City could have, but did not, sunset the language in Article 26.1; and the Union was not content to have members paid indefinitely at 2009 rates, the last year of the CBA. Thus the City's claimed concerns regarding the impact of Triborough are overstated and unwarranted. 27 B. Documents Not Submitted To The Arbitrator Cannot Be Considered By This Court A party seeking vacature bears a substantial burden of proof which can be established only by relying on evidence presented to the arbitrator. Thus in the matter at-bar, the Appellate Division, Fourth Department, held that documents not submitted to the Arbitrator could not be considered in reviewing the Arbitration Award. Opinion of the Fourth Department, R.7 (citing Matter of Camp bell v. New York City Tr. Auth., 32 A.DJd 350,352 (1 st Dept. 2006); Matter of Hirsch Constr. Corp. [Cooper}, 181 A.D.2d 52, 55 (1stDept. 1992); Iv denied 81 N.Y.2d 701 (1992)). Relatedly, in an action to vacate, judicial review should be confined to the arbitrator's findings of fact, as contained in hislher award; a party should not be permitted to re-litigate its case under the guise of seeking vacatur. See, e.g., United Federation of Teachers, 1 N.y'3d at 83; Matter of N. Y City Transit Authority v. Transport Workers Union, 14 N.YJd 119, 124 (2010). As stated by this Court in New York State Corrections Officers, 94 N.Y.2d at 327, [s]imply put...the issue before [the] Court [in a vacatur context] is not whether we agree with the arbitrator's assessment ofthe evidence, interpretation ofthe contract or reasoning in fashioning the award. We are not authorized to revisit those questions. We must focus on the result only, and can vacate the award ifthe arbitration agreement itself violates public policy .... 28 It is axiomatic that newly-discovered evidence is not a basis for vacatur. Matter of Central Gen. Hosp. v. Hanover Ins. Co., 49 N.Y.2d 950,951 (1980); Hirsch Constr., 181 AD.2d at 55; Matter of Card eon v. N.Y Central Mut. Fire Ins. Co., 17 AD.3d 1037, 1 037 (4th Dept. 2005); Matter of Eastman Assoc 's, Inc. v. Juan Ortoo Holdings, Ltd., 90 AD.3d 1284 (3 rd Dept. 2011). Herein the City'S petition to vacate, and consequently the record before this Court, contains mUltiple documents which were never presented to the Arbitrator. See, e.g., R.49-52; R.108-60. While many of these documents existed and could have been provided to the Arbitrator for use in rendering his decision (see, e.g., R.49-51, 108-9, 114-57), the City elected not to do SO.5 Other documents did not exist when the Arbitrator ruled, although they likely could have been requested by the City and thus generated by the Retirement System. See, e.g., R.111-2, 159-60. Regardless, these materials cannot properly be considered by the Court in reviewing the A ward as they were not before the Arbitrator. Thus they are beyond the scope ofthe Court's consideration. 5This apparent error cannot be rectified at this stage of the proceeding. 29 C. The Retirement System's Opinions Are Not Entitled To Deference Among the documents addressed in sub-point "B," supra, are letters and writings from the Retirement System. As well as being outside the purview of this Court for the reasons stated above, the opinions of the Retirement System are not entitled to deference because, as recognized by the Appellate Division, Fourth Department, the matter before this Court turns on "pure statutory construction." R.7. Thus the Agency has no "special competence or expertise." Id. Where the language of the statute is clear and "the question simply involves proper application of a statute, there is little basis to rely on any special competence or expertise of the administrative agency." Matter 0/ Angello v. Labor Ready, Inc", 7 N.y'3d 579, 583 (2006); see also D. S. Alamo Associates v. Commissioner 0/ Finance, 71 N.Y.2d 340, 343 (1988); Matter o/Trump-Equitable Fifth Ave. Co., 62 N.Y.2d 539,545 (1984). "Ultimately .. .legal interpretation is the court's responsibility; it cannot be delegated to the agency charged with the statute's enforcement." Moran Towing & Transp. Co. v. New York State Tax Comm., 72 N.Y.2d 166, 173 (1988). An agency's latitude in interpreting a statute which it is charged with enforcing is limited by a requirement that the 30 interpretation be reasonable. Matter of Trump-Equitable Fifth Ave. Co. v. Gliedman, 62 N.Y.2d at 545. Here, the City urges this Court to defer to the opinion of the Retirement System that "firefighters hired by the City of Oswego on or after January 9, 2010, will be contributory, since [the City's] last contract [with the Union] expired on December 31, 2009." Brief of Petitioner-Appellant, p. 7; R.54 (emphasis added). Because the matter at-bar involves "pure statutory construction," the opinion of the Retirement System is not particularly useful nor entitled to deference. See, opinion of the Fourth Department, R.7. Deferral to the Retirement System must also be rejected because the purported opinion is premised on a misstatement ofRSSL, Section 8, and thus is wrong. The Tier V amendment speaks of an agreement that is "effective," not one that is or is not "expired." Thus whether or not the stated term ofthe CBA has expired is not dispositive for Section 8 purposes. Rather, the issue is whether the CBA is "effective," a question which, pursuant to Triborough, must be answered in the affirmative in the matter at-bar. While the Retirement System may be well-equipped to interpret the law of retirement, it has no expertise on whether a collective bargaining agreement is legally "in effect" or "effective." The Comptroller's letter provides a legally 31 inaccurate interpretation of a statute which is linguistically pellucid in its reference to CBAs that are "in effect." The Retirement System's conflation of the terms "in effect" and "unexpired" demonstrates graphically that the Retirement System is not the agency with expertise to interpret legal terms which define public sector collective bargaining relationships. Thus, no deference is due to the Retirement System's interpretation.6 CONCLUSION Based on the above reasons and authorities, it is respectfully submitted that the Appellate Division, Fourth Department, properly affirmed denial of the City's Petition to Vacate the Arbitration Award, instead confirming the Award. Thus the lower court should be affirmed by this Honorable Court. DATED: December 12, 2012 6The City cites Conradv. Regan, 155 A.D.2d 931 (4th Dept. 1989) to support its assertion the Comptroller's interpretation is entitled to judicial deference. Brief of Petitioner-Appellant at p. 30. In fact, Conrad, which addresses whether the proper procedure for a class action against the Comptroller is an Article 78 proceeding or a request for declaratory judgment, says nothing about judicial deference to the Comptroller. 32 STATE OF NEW YORK COURT OF APPEALS CITY OF OSWEGO, -against- Petitioner-Appellant, OSWEGO CITY FIREFIGHTERS ASSOCIATION, LOCAL 2707, State of New York) County of Onondaga) ss.: Respondent-Respondent. AFFIDAVIT OF SERVICE Appellate Division Docket # 11-0 1941 Oswego County Index #11-351 Mary 10 Beamish, being duly sworn, deposes and says: 1. I am not a party to the within action, am over 18 years of age and reside in Syracuse, New York. 2. On December 13,2012, I overnight mailed three copies ofthe Brief of Respondent-Respondent Oswego City Firefighters Association, Local 2707 to Earl Redding, Esq. of Roemer, Wallens, Gold & Mineaux, LLP, at 13 Columbia Circle, Albany, New York 12203, the address designated by said attorney for that purpose by depositing true copies of the same enclosed in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United Parcel Service within the State of New York. Sworn to before me this l3- day of December, 2012 (S . Notary ublic Mimi Satter Notary Public, State of New York No. 02SA5033328 Qu.aliFied in Onondaga CountYJ<:/ COmllllSSlO1l Expires Sept. J 8, 20---r MJOBeaIllish Cited PERB Decisions 1116-3093 Board Decisions regarding a past practice in which it paid policemen for time spent testifying on its behalf . but not for time spent testifying in proceedingsin which they had an interest. Since the instant case ·concerns a different negotiating unit, the exclusion of that testimony was not in error as it was not relevant to the basis of the hearing officer's decision. I would affirm the d.ecision of the hearing officer. 1116-3094 In the Matter of OLD BROOKVILLE POLICEMEN'S BENEVOLENT ASSOCIATION, INC., Respondent, and INCORPORATED VILLAGE OF OLD BROOKVILLE, Charging Party. Case No. U-6616 Before HAROLD R. NEWMAN, Chairman; IDA KLAUS, DAVID C. RANDLES; November I, 1983 INDEX NOS. 43.120,43.214 Hearing officer properly determined that village's proposal, providing for pay rate for probationary police officers, was mandatorily negotiable, despite police union's claim that there was no present probationary period for police officers [see 16 PERB 4571 (N.Y.PERB H.O. 1983)]. Proposal went no further than to establish wage for whatever period of probation might exist. 3154 INDEX NOS. 43.120,43.122,43.137,43.168 Hearing officer properly determined that village's proposals, providing for newly hired police officers' salary increments, holiday compensation, supplemental pay, sick days and retirement plan, were mandatorily negotiable hecause, despite fact that parties need not negotiate with· respect to possible future employees, they are required to. negotiate with respect to titles within existing unit, even if such titles are presently unoccupied [see 16 PERB 4571 (N.Y.PERB H.O. 1983)]. INDEX NO. 43.118 Hearing officer properly determined that village's proposal, providing for elimination of additional salary for detectives, while "grandfathering" existing salary, was mandatory bargaining subject because it sought only to negotiate salaries [see 16 PERB 4571 (N. Y .PERB H.O. 1983)]. INDEX NOS. 42.44,43.116,43.445,43.94,43.99 Hearing officer properly determined that village's proposal, requiring police officers to correct careless or negligent reports or docnments on their own time, without compensation, was mandatory bargaining subject that was not preempted by statutory disciplinary procedures and did not violate statutory limitation upon police officers' work honrs [see 16 PERB 4571 (N.Y.PERB H.O. 1983)]. Proposal did not necessarily require officers to work more than prescribed number of hours. INDEX NOS. 43.76,46.42 Hearing officer properly determined that village's proposal, providing for automatic renewal of agreement for one-year periods, "unless either party gives the other sixty days notice of termination," was mandatorily negotiable because contract's duration is necessarily term and condition of employment in fixing terms of employer-employee relationship and proposal was nothing more than variation upon determination of agreement's length [see 16 PERB 4571 (N.Y.PERB H.O. 1983)]. INDEX NO. 43.137 Contrary to hearfug officer's determination, village's proposal, seeking elimination of health insurance benefits for employees who retire after 11/83 I I L s b e t Board Decisions ~16-3094 specified date, was mandatorily negotiable because it would apply only to persons who were employed by village on and after day on which parties' successor agreement would take effect and not to persons who had already retired. Successor agreement may apply retroactively to persons who were employed by village between expiration of prior agreement and execution of its successor. INDEX NO. 43.137 Contrary to hearing officer's determination that village's proposal, seeking to require employees to pay any increase in retirement costs over 1982, was not mandatorily negotiable, in absence of any statutory provision permitting assumption ofsuch expenses by employees[see 16 PERB 4571 (N.Y.PERB H.O. 1983)], such proposal was mandatory subject of negotiation, since there is no statutory, decisional or administrative prohibition of assumption of part of costs of retirement benefits by public employees. INDEX NO. 43.473 Hearing officer properly determined that village's proposal, seeking to limit its liability for police officers' off·duty conduct involving their carrying guns outside territorial employment area, was not mandatorily negotiable because it encompassed matter outside employment relationship [see 16PERB4571 (N .Y.PERBH.O. 1983)]. Village had right to determine unilaterally whether to impose employment obligations upon police officers outside its territorial area. INDEX NOS. 42.44,43.168 Hearing officer properly determined that village's proposals, providing for automatic discharge of pOlice officers for: (1) refusing to accept medical treatment and hospital care, as ordered; (2) refusing to accept light duty they are able to perform after accidental injury; or (3) being unable to return to duty after more than one year on medical leave, were not mandatorily negotiable because they contravened statutory provisions, establishing diminution and discontinuance of benefits, rather than dismissal, for such actions [see 16 PERB 4571 (N.Y.PERB H.O. 1983)]. Back reference: 16 PERB 4571 Lerner & Gordon. Esqs. (Lawrence M. Gordon, Esq" of Counsel), for Respondent CuI/en & Dykman, Esqs. (Thomas M. Lamberti, Esq. and Beverly I. Moran, Esq., of Counsel), for Charging Party. Board Decision and Order The charge herein was filed by the Incorporated Village of Old Brookville (Village). It complains that the Old Brookville Policemen's Benevolent Association, Inc. (PBA) violated §209-a.2(b) of the Taylor Law in that it refused to negotiate sixteen proposals made by the Village. In its answer to the charge PBA acknowledges its refusal to negotiate the sixteen proposals, but it asserts no legal obligation to negotiate those proposals because they involve nonmandatory subjects of negotiation. The hearing officer determined that ten of the proposals involved mandatory subjects of negotiation and six did not. The matter now comes to uS on the exceptions of both parties. P BA has filed exceptions to nine of the ten determinations that the proposals are mandatory subjects of negotiation, and the Village has filed exceptions to all six of the hearing officer's determinations that these proposals are nonmandatory. PBA's Exceptions Proposal No.6 During probationary period employee shall receive $20 a week less than hiring rate. The hearing officer determined that the proposal is for a wage rate for police officers who are in a probationary status and that wage rate proposals are mandatory subjects of negotiation.' PBA argues that a wage rate for probationary employees is not a mandatory subject of negotiation because no police officer in the Village's employ is on probationary status. It also contends that probationary employees would not be in the PBA negotiating unit and therefore would not be covered by the parties' agreement. The Village responds that the unit consists of all . police officers and that probationary police officers are merely new hires who, pursuant to the Nassau County Civil Service regulations, may be placed on probation for up to one year. We determine that the positions that would be held by police officers who might be hired during the term of the agreement and put in probationary status would be in the negotiating unit. A proposal regarding the terms and conditions of employment of persons who are to be hired to fill unit positions is a mandatory subject of Doaro uecisions negotiation. I We affirm the decision of the hearing officer regarding Proposal NO.6. Proposals No.8, 10, 12 and 14 deal with new hires and can be considered together. They provide: Proposal No.8 Eliminate sixth year longevity step for new hires. Proposal No. 10 Freeze present holiday compensation and eliminate for new hires. Proposal No. 12 $1,000 supplemental pay for new hires. Proposal No. 14 Provide twelve sick days for new hires. Each of these proposals deals with the terms and conditions of employment of persons whom the Village may hire during the term of the agreement to serve in positions that are now in the negotiating unit. For the reasons stated in our discussion of Proposal No.6, we affirm the decision of the hearing officer that such proposals constitute mandatory subjects of negotiation. Proposal No. 21 also deals with the terms and conditions of employment of persons who may be hired during the period covered by the agreem~nt. It states: Provide twenty-five year retirement plan for new hires. In addition to the argument relating to new hires which we have already rejected, PBA contends that a municipality may not establish one retirement plan for some of its employees and another for other employees. City Building Employees Association v. Levitt, 67 AD2d 806 (4th Dept., 1979), affd on other grounds 49 NY2d 1033 (1980), contains language which provides some support for this position. However, the decision in the later case of Vii/age of Fairport v. Newman, 90 AD2d 293 (Fourth Dept., 1982), 15 PERB 117033, app. dsmd. 58 NY2d 1112(1983),16 PERB 117013, is more directly in point and is to the 'City of Peekskill, 12 PERB ~3100 (1979); City of Newburgh. 16 PERB ~3030 (1983). 3156 contrary. Dealing with retirement benefits, it says that the parties are "free to negotiate ... less advantageous terms for future employees .... " We therefore affirm the hearing officer's determination that Proposal No. 21 is a mandatory subject of negotiation. Proposal No. 11 Eliminate additional salary for detectives but grandfather existing salary. This too is a proposal affecting the terms and conditions of employment of persons who may be hired by the Village during the period covered by the agreement to fill a negotiating unit position. We affirm the hearing officer's determination that it is a, mandatory subject of negotiation. Proposal No. 38 Careless or negligent reports or documents to be corrected on officer's time without compensation. PBA argues that the demand is not mandatory becauseit would impose additional working time upon police officers which might cpmpel them to work beyond the time permitted by §971 of the Unconsolidated Laws. Rejecting this argument, the hearing officer determined that the demand is mandatory because it merely deals with compensation. We affirm the decision .of the hearing officer. There is no more reason to conclude that unpaid time during which carelessly prepared reports would be corrected would exceed that permitted by law than there is to conclude that the presumably paid time during which such reports are now corrected exceeds that permitted by law. Proposal No. 49 Contract to be self-renewing for one year periods unless either party gives the other sixty days notice of termination. The proposal merely sets forth a formula for determining the duration of the agreement. The hearing officer correctly ruled that such a proposal is a mandatory subject of negotiation.' 'SceLynbrook PBA. 10 PERB ~3067 (1977), confirmed Village of Lynbrook v. PERB, 48 NY2d 398, 12 PERB ~7021 (1979). 11/83 I I I 'I "I ~ .~ L D oj 1\ (I is e> al Vi it! re d, bl th pi er th ta c( tv. al b, aj A 01 pi V al T bl r< eI pi T N It al Sl - 1 it says ' ... Iess .... We ieer's is a 'es 1S and lay be 'ed by ;ition. n that Its ut atory ;time ,m to ,f the nellt, md is with f the n to lessly ,ceed :Iude such litted r r I for The ,osal >77), 398, Board Decisions 1116-3094 The Village's Exceptions Proposal No. 20 Eliminate health insurance payments for employees who retire after June I, 1982. The Village presented its proposals to PBA on December 7, 1982. By that time some police officers may have already retired after June I, 1982. Relying upon City of Troy, 10 PERB 1[3015 (1977), the hearing officer ruled that the proposal is not a mandatory subject of negotiation to the extent that it dealt with employees who had already retired. He further found that the demand was a unitaryone and therefore non mandatory in its entirety,) The Village argues that the hearing officer's reliance on City of Troy is misplaced in that Troy declared nonmandatory the negotiation of benefits of persons who were not employed during the period covered by the agreement, while its proposal would only cover persons who were employed by the Village on and after June I, 1982, the day on which the parties' agreement would take effect. The distinction drawn by the Village is correct. The parties' prior agreement expired on May 30, 1982, and .a successor agreement may apply retroactively to persons who were employed by the Village between the expiration of the prior agreement and the execution of its successor. Accordingly, the proposal is a mandatory subject of negotiation. Proposal No. 22 Employees to pay any increase in retirement costs over 1982. The hearing officer determined that the proposal was non mandatory because the "the Village has cited no statutory provision permitting an assumption of such expense by employees." The V illage argues that the proposal should have been' found mandatory because the cost of' retirement benefits is a term and condition of employment and there is no statutory provision prohibiting the assumption of such costs. Citing Town of Huntington v. Associated Teachers, 30 NY2d 122,5 PERB 1[7507 (1972), it argues that, in the absence of an explicit prohibition, all terms and conditions of employment are mandatory subjects of negotiation. 3SeeTown oJ Haverstraw. II PERB ~3109 (1978). We find no statutory. decisional or administrative prohibition of the assumption of part of the costs of retirement benefits by public employees. Accordingly, we determine that Proposal No. 22 is a mandatory subject of negotiation. Proposal No. 44 (as modified) An employee who carries an off-duty gun outside the territorial area of his emplo'yment shall be deemed not working in the scope of his employment and the employer shall not be responsible for his acts. The hearing officer determined that the proposal is not a mandatory sUbject of negotiation because it uencompasses matters beyond the employment relationship .... " The Village argues that the proposal is mandatory because it defines the employment relationship. We affirm the hearing officer's decision. The Village may determine unilaterally whether to impose employment obligations upon police officers outside its territorial area. Its decision to do so is not a mandatory subject of negotiation.' Proposals No. 46 and 47 can be considered simultaneously. They provide: Proposal No. 46 Employee who refuses to accept medical treatment and hospital care including tests shall be deemed to have resigned effective 30 days after ordered to do so. Proposal No. 47 Employee who is not granted accidental disability retirement, who is able to perform light duty in the opinion of the Village appointed medical doctor and refuses to do so, shall be deemed to have resigned effective 30 days after ordered to do so. The hearing officer determined that the subject matter of the proposals is covered by General Municipal Law §207-c. Subdivision 1 of that section provides that an injured or sick policeman who refuses to accept medical treatment shall be deemed to have waived his right to be reimbursed 'City oj Rochester.'12 PERB ~3010 (1979). 11'i7 1116-3094 Board Decisions for expenses for medical treatment and hospital c:are and for salary and wages payable after such refusal. Subdivision J provides that a police officer who is able but refuses to perform light duty work shall not receive salary or wages, but shall continue to be reimbursed for medical e,.:penses. The benefits provided by GML §207-c c:annot be withheld except by the terms of that law.' In City of Binghamton, 9 PERB 113026 (1976), confirmed Binghamton v. Helsby, 9 PERB 117019 (Sup. Ct., Alb. Co., 1976). We held that a union cannot be required to negotiate the waiver of such employee rights. It follows that the two proposals are nonmandatory. . Proposal No. 48 Employee on medical leave for more than oneyearwho is not able to return to duty as determined by the Village appointed medical doctor shall be deemed to have resigned effective 30 days after one year medical year. This proposal is in direct controvention of G ML §207-c which provides that a disabled employee continues to receive benefits until I) he reaches the mandatory retirement age, 2) he is granted an accidental disability retirement allowance, or 3) he violates any of the conditions imposed by the statute. This proposal would permit the Village to impose retirement upon a covered employee merely by reason of the lapse of time after the disability commences. It is therefore not a mandatory subject of negotiation. NOW, THEREFORE, WE ORDER PBA to negotiate in good faith the proposals found to be mandatory subjects of negotiation and that the charge herein be, and it hereby is, dismissed in all other respects. 'Connors v. Bowles, 63 AD2d 956 (2d Dept., 1978), mot.ly. app. den. 45 NY2d 832 (1978). 3158 1116-3095 I n the Matter of CSEA, NASSAU LOCAL 830, Respondent, and LOCAL 808, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, Charging Party. In the Matter of TOWN OF NORTH HEMPSTEAD, Respondent, and LOCAL 808, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, Charging Party. Case Nos. U-6799,U-6800 Before HAROLD R. NEWMAN, Chairman; IDA KLAUS, DAVID C. RANDLES; November I, 1983 INDEX NOS. 32.96,72.18,72.21,72.51,73.1 Director properly determined that town and its employees' incumbent union did not act improperly by entering into memorandum of understanding, after they learned of employees' interest in being represented by another union [see 16 PERB 4587 (N.Y.PERB H.0.1983)). There is no requirement under Taylor Law that employer cease negotiations with incumbent union, prior to filing of representation petition. Accordingly, it is not improper for either or both parties to bargaining relationship to press to complete negotiations as filing deadline approaches; indeed, it is to be expected. Back reference: 16 PEI~B 4587 Roemer and Featherstonhaugh, Esqs. (William M. Wallens, Esq., of Counsel), for CSEA, Nassau Local 830 Robert Dolan, Esq., for Town of North Hempstead 11/83 I 1 O'L Esq Bro Lo( Tea of Rei (U- 830 No Lo( mo bar thi! pra agr oft elei em sig an, Ta ba ini an di~ no Lc co its ch all T( a. th th a! 8e T d( - C( IS C( 1 Board Decisions 1]27-3001 PART 3 Decisions of the Public Employment Relations Board ,,27-3001 In the Matter of NEW YORK STATE INSPECTION, SECURITY AND LAW ENFORCEMENT EMPLOYEES, DISTRICT COUNCIL 82, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Charging Party, and STATE OF NEW YORK (OFFICE OF PARKS AND RECREATION), Respondent. Case No. U-13210 Before PAULINE R. KINSELLA, Chairperson; WALTER L. EISENBERG; ERIC J. SCHMERTZ; January 24,1994 INDEX NOS. 43.120, 46.44, 46.47,72.641 Union's charge, alleging that state vio- lated § 209-a.1(e) of Act by failing to pay cer- tain employees under provisions of salary schedule set forth in expired agreement, was remanded for decision on the merits. Contin- uation of contractual benefits effected as matter of law by statute for constitutional purposes is not the same as consensual con- tinuation of contract that might affect expira- tion date for improper-practice purposes. In Surrogates and Supreme Court Reporters v. State of New York, 25 PERB 7502 (Ct.App. 1992), court did not intend to repeal subsec- tion (e), the very provision on which court relied to establish unconstitutionality of lag payroll at issue in that case. Back reference: 26 PERB 4551 Rowley, Forrest, O'Donnell & Hite P.C. (David C.Rowleyof counsel), for Charging Party Walter J. Pellegrini, General Counsel (Richard W. McDowell of counsel), for Respondent Nancy E Hoffman, General Counsel (Maureen Seidel of counsel), for Civil Service Employees Association, Inc., Local toOO, AFSCME, AFL- CIO, Amicus Curiae Board Decision and Order This case comes to us on exceptions filed by the New York State Inspection, Security and Law Enforcement Employees, District Council 82, American Federation of State, County and Municipal Employees, AFL-CIO (Council 82) to a decision by the Assistant Director of Public Employment Practices and Representation (As- sistant Director). After a three-day hearing, the Assistant Director dismissed Council 82's charge, which alleges that the State of Ne..y York (Office of Parks and Recreation) (State) Violated § 209-a.1 (e) of the Public Employees' Fair Em- ployment Act (Act) when it failed to pay certain unit employees according to the salary schedule in the parties' April 1, 1988-March 31, 1991 contract. The Assistant Director held that under the New York Court of Appeals decision in Asso- ciation of Surrogates and Supreme Court Re- porters v. State of New York (hereafter Surrogates 11),' the parties' contract had not "ex- pired" within the meaning of § 209-a.1 (e) of the Act, which makes Improper an employer's re- fusal to continue all of the terms of an "expired agreement.' Although the State's alleged refusal to pay service increments at the required rate occurred after the expiration of the stated term of the 1988-91 contract, the Assistant Director held that Surrogates II served to continue that contract in effect as a matter of law, such that 'there was no "expired agreemenf' and, there- fore, no cognizable § 209-a.1 (e) claim. Council 82 argues that the Assistant Direc- tor's decision misinterprets Surrogates II, misap- plies § 209-a.1 (e) and other provisions of the Act, and occasions a result which is inconsistent 3001 If"~UU I ."C:W I UI ~ rl;;nD nt:lpUn~ with the legislative history of § 209-a.1(e) and the purposes and policies of the Act. The State argues that the Assistant Direc- tor's decision must be affirmed because he cor- rectly applied § 209-a.1 (e) as that subsection of the Act was interpreted by the Court of Appeals in Surrogates /I. The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, has filed an amicus curiae brief urging reversal of the Assistant Director's decision. Having considered the parties' arguments, including those at oral argument, we reverse the Assistant Director's decision and remand the case to him for decision on the allegations. As noted, § 209-a.1 (e), added to the Act in 1982, makes it an improper practice for an employer "to refuse to continue all the terms of an expired agreement until a new agreement is negotiated ... ." This legislation represented an extension of our ''Triborough Doctrine," under which mandatory subjects of negotiation gener- ally must be continued during any hiatus period between collective bargaining agreements.' Section 209-a. 1 (e) extended the employer's obli- gation by requiring the continuation of all contract terms, whether or not they are mandatorily nego- tiable, unless the union was responsible for an unlawful strike. The history of § 209-a.1( e) makes it clear that the Legislature intended by the enactment of this so-called "Triborough legislation" to stabilize the bargaining process by diminishi ng or remov- ing the tensions which are conducive to a disrup- tion of services. It is equally clear from this same history that the Legislature also considered § 209-a.1 (e) to be a fair quid pro quo for its prohibition of strikes in the public sector. The small number of public employee strikes which have occurred following the enactment of § 209- a.1(e) suggests that the LegislatUre was correct in its assessment that this legislation woUld pro- mote bargaining, hinder unilateral changes in employment conditions and diminish the likeli- hood of illegal strikes. The issue before us has profound implica- tions for the administration of the Act and the labor-management relationships· subject 3002 thereto. Put simply, to affirm the Assistant Direc- tor's decision would effectively repeal § 209- a.1 (e). If, as he held, collective bargaining agreements never expire as a matter of law un- der Surrogates /I, no cause of action could ever be stated under that subsection of the Act. An affirmance would divest PERB of jurisdiction over the investigation and prevention of this par- ticular type of employer improper practice de- spite the Legislature's grant to the agency, in § 205.5(d) of the Act, of a general and exclusive power over improper practices, contrary to the express public policy of the State as set forth in § 200 of the Act. Repeal of § 209-a.1 (e) by interpretation of Surrogates /I would also contrib- ute to a destabilization of the bargaining process and a concomitant increase in destructive self- help remedies by employers and unions alike. We consider these results to be so completely inconsistent with the expressed policies of the Act tI1at we would affirm the Assistant Director's decision only if Surrogates /I commands such a result? Our task is to harmonize the provisions of the Act as a whole and to promote its articulated purposes and policies, while we simultaneously adhere to Surrogates II. To dismiss Council 82's § 209-a.1 (e) allega- tions on a theory that Surrogates II holds that collective bargaining agreements never "expire" for any purpose would mean that there could not be an improper practice under § 209-a.1 (e) because no union could establish the element of an "expired agreement," which is necessary to the cause of action as the Legislature has defined that particular employer improper prac- tice. We reject, however, the proposition that the Court of Appeals in Surrogates /I intended to effectively repeal the very provision of the Act that it used to establish the unconstitutionality of the statute in issue in that case, particularly since it had before reviewed, on the merits, a PERB determination on § 209-a.1(e) allega- tions.' To the contrary, we believe that the Court's several references in Surrogates lito the agreement having "expired" or to its stated term having been "completed" show that the Court did not intend that result. Closer examination of the Court's decision confirms our opinion. In Surrogates /I, the Court of Appeals held that State Finance Law § 200(2-b), which ef- fee err un tiv. COl Cc lit al pa ml wt ter pu thl pa WI ag ag on ali PI of .dil or lui er tic er ce tic he Pl tie th pr th c( er ar th Sl is It al c< 1 r n n '- ,- n e e h y )- s f- l. Iy a ~f ,d Iy a- at e" Id e) nt ry 1S .c- le to .ct ity rly a la- he he ,m urt of lid af- Board Decisions '\127-3001 fected a five-day "lag payroll" upon nonjudicial employees of the Unified Court System, was unconstitutional because it impaired their collec- tive bargaining agreements in violation of the contract clause of the Federal Constitution (U.S. Const., Art. 1, § 10, CI. 1). The Court began its analysis in Surrogates /I by stating that '1he threshold issue is whether a valid and subsisting contract existed between parties."'ln answering that question in the affir- mative, the Court held that the parties' contract, which, like the contract in this case, had a stated term through March 31, 1991, was continued pursuant to § 209-a.1 (e). The Court reasoned that § 209-a.1 (e), which was extant when the parties to that case negotiated their contract, was incorporated as a matter of law into their agreements so as to extend the "expired agreement. ". The Court in Surrogates /I was presented only with a question concerning the constitution- ality of the State's lag payroll legislation. Neither PERB's jurisdiction nor the nature or elements of a § 209-a.1 (e) improper practice charge was discussed or even mentioned. The Court held only that, in enacting § 209-a.1 (e), the Legisla- ture created private rights of a contractual nature enforceable as against the State on a constitu- tional theory. There is a very real and perceptible differ- ence between parties being in a relationship with concomitant private rights for a limited constitu- tional purpose, as Surrogates 1/ holds, and their having an "expired" agreement for the specific purpose of a statutorily defined improper prac- tice. Section 209-a.1(e) of the Act requires only the latter, irrespective of the former. In deciding whether any statutory improper practice cause of action is stated, we look to the violation as defined in the Act. In relevant context, the "agreemenf' in § 209-a.1 (e) is a ref- erence back to § 201.12 of the Act which defines an "agreemenf' for all purposes of the Act. In that definition, it is stated that an agreement re- sults from an exchange oi mutual promises and is binding only for the period "set forth therein." It is clear to us, therefore, that for purposes of applying § 209-a.1 (e) in the improper practice context, the Legislature intended to fix a con- tract's expiration, for purposes of the Act, by reference to the term of the contract as defined in the contract itself. That interpretation of § 209- a.1(e) is consistent with § 208 cif the Act, which fixes expiration of a contract for purposes of de- fining a union's period of unchallenged represen- tation status by reference to the tem of the contract as set forth in the agreement Our conclusion that Surrogates /I does not have the meaning ascribed to it by the Assistant Director is buttressed by the Courfs own recog- nition of the purposes sought to be served by the enactment of § 209-a.1 (e). Having recog- nized that § 209-a.1 (e) is fundamentally im- portant to labor relations harmony and stability, we do not believe that the Court could have intended by its limited holding in Surrogates /I to have rendered that statutory provision a nullity. The Court in Surrogates /I also character- ized § 209-a,1 (e) of the Act as a "continuation of benefits" clause. We do not, however, con- sider this characterization to be in any way deter- minative of our analysis. A continuation of contractual benefits effected as a matter of law by statute for constitutional purposes is not the same as a consensual continuation of contract which might affect the expiration date of the con- tract for improper practice purposes by changing the period set forth in the contract itselF The stated term of the agreement in this case is through March 31, 1991. Therefore, any actions taken after March 31, 1991, which alleg- edly changed any of the'terms of the parties' 1988-91 contract before the parties' negotiation of a successor agreement,' are cognizable un- der § 209-a.1 (e) of the Act. Given the ground for his dismissal of the charge, the Assistant Director did not make any findings of fact or conclusions of law on the mer- its of the parties' allegations or arguments. A merits disposition wiff necessitate review and evaluation of extensive testimonial and docu- mentary evidence raising potential credibility is- sues. Under the circumstances, a remand to the Assistant Director is plainly necessary and ap- propriate. For the reasons set forth above, the Assis- tant Director's deCision is reversed and such of 3003 '1\27-3001 New York PERB Reports Council 82's exceptions as are directed to the 1127-3002 ground for the Assistant Director's dismissal of the charge are granted. In the Matier of IT IS, THEREFORE, ORDERED that the case must be, and hereby is, remanded to the Assistant Director for further processing consis- tent with the terms of our decision and order herein. 1 79 N.Y.2d 39, 25 PERB ~ 7502 (1992). 2 The ''Triborough Doctrine" was named for our decision in Triborough Bridge and Tunnel Auth., 5 PERB ~ 3037 (1972), the first case in which we recog- nized this status quo principle. 3 Our approach is fully consistent wtth those gen- eral rules of statutory construction which caution against interpretations which effect ·'absurd" results (McKinney's Statutes § 145) and implied repeals of statutory provisions. (McKinney's Statutes §§ 391- 400). 4 County of Nassau v. PERB, 76 N.Y.2d 579, 23 PERB ~ 7019 (1990). As wtth implied repeals of statutory provisions, established judicial precedent is not to be consider",d overruled by implication wtthout compelling reason. New Amsterdam Casualty Co. v. Nat'l Union Fire Ins. Co., 266 N.Y. 254 (1935). 5 79 N.Y.2d 39, 44. • 79 N.Y.2d 39, 45. 7 We have held that contract continuation clauses which have been specifically agreed to by the parties preclude a cause of action under § 209-a.l(e) because they continue the contract in effect beyond the stated expiration date, thereby changing "he period set forth therein" as referenced in § 201.12 of the Act. Cffyof Saratoga Springs, 18 PERB ~ 3009 (1985); County of St. Lawrence, 18 PERB ~ 3052 (1985). See a'so Cffy of Utica, 18 PERB ~ 3013 (1985). 8 The parties did not reach a successor agreement until June 1992. 3004 CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 815, BUFFALO SEWER AUTHORITY UNIT, Charging Party, and BUFFALO SEWER AUTHORITY, Respondent. Case. No. U-13439 Before PAULINE R. KINSELLA, Chairperson; WALTER L. EISENBERG; ERIC J. SCHMERTZ; January 24,1994 INDEX NOS. 43.473, 72.661, 72.665 ALJ properly concluded that sewer au- thority violated its bargaining obligation by unilaterally instituting random checks of trunks of vehicles entering and leaving treat- ment plant [see 26 PERB 4569 (PERB ALJ 1993)]. Notwithstanding authority's argu- ment that inspection applied to public at large, and thus, was not condition of employ- ment, evidence showed that overwhelming majority of those subject to inspections were employees, and not visitors, vendors or con- tractors. Further, while employees were sub- ject to existing security check by visual inspection of vehicles, new inspection rule expanded degree of scrutiny and level of em- ployee participation. In that regard, author- ity's argument, that increase in employee participation was de minimis, was rejected. Fact that new inspection procedure did not specify penalty for noncompliance did not remove procedure from realm of mandatory negotiations. Finally, employees' privacy in- terests outweighed small number oftheft and illegal-dumping incidents cited by authority as basis for expanded security checks. INDEX NO. 74.13 ltis implicit in every order issued by PERB that remedial relief is limited to persons or o c ~ L f t c f ( ( f t I f Ir o It d ;- nli· .ion I' Board Decisions 'lJ27-3070 1127-3070 In the Matter of WATERFORD TEACHERS ASSOCIATION, NYSUT, AFT, AFL-CIO, Charging Party, and WATERFORD-HALFMOON UNION FREE SCHOOL DISTRICT, Respondent. Case No. U-13859 Before PAULINE R. KINSELLA, Chairperson; WALTER L EISENBERG; ERIC J. SCHMERTZ; November 30,1994 INDEX NOS. 43.120, 46.44, 72.641 . Where salary article, called for creation of salary schedules for three-year period cov- ered by collective agreement, school district had no duty to compute new salary sched- ules for years other than those covered by agreement; however, district violated Act by failing to advance unit employees on step in accordance with terms of expired contract. Mere reference to years covered by salary schedules could not be read as evidencing intent to terminate wage system embodied therein where salary schedule was compo- nent part of wage system which district under § 209-a.1(e), was required to maintain upon expiration of agreement [see Cobleskill Cen- tral School District, 16 PERB 3057 (1983), aff'd, 105 AD2d 564, 17 PERB 7019 (3d Dep't 1984), inotion for leave to appeal denied, 64 NY2d 610, 18 PERB 7006 (1985)]. Accord- ingly, to extent Suffolk County, 18 PERB 3030 (1985), appeal dismissed as moot sub nom. Faculty Ass'n of Suffolk Community Col/ege v. PERB, 20 PERB 7002 (2d Dep't 1986), is inconsistent with Cobleskill, Suffolk County is reversed. Director's decision, 27 PERB 4540 (1994) reversed in part INDEX NOS. 46.42, 46.44 Neither § 209-a.1 (e) of Act nor case law precludes parties from sunsetting a given term in collective bargaining agreement To hold otherwise would require post-expiration continuation' of terms which by agreement ended upon expiration of contract. Accord- ingly, post-expirations obligations will be ex- amined based upon nature of parties' specific agreement as to given term of contract. Back reference: 27 PERB 4540 James R. Sandner, Esq. (J. Christopher Meagherand Mitchell H. Rubinstein of counsel), for Charging Party Buchyn, O'Hare, Werner & Gala (Kathryn McCary of counsel), for Respondent Board Decision and Order This case comes to us on exceptions to a decision by the Director of Public Employment Practices and Representation (Director) on an improper practice charge filed by the Waterford Teachers Association, NYSUT, AFT, AFL·CIO (Association) against the Waterford·Halfmoon Union Free School District (District). The Associ- ation alleges in its charge that the District discon- tinued the salary terms of the parties' expired collective bargaining agreement in violation of § 209-a.1 (e) of the Public Employees' Fair Em- ployment Act (Act) when, after expiration, on August 31, 1992, of the parties' 1989-92 agreement, it did not compute a new salary schedule for the 1992-93 school year and when it did not pay eligible unit employees annual ser- vice increments provided by the 1991-92 salary schedule. The Director dismissed the charge on the ground that the salary provisions of the parties' agreement were "intemally sunsetted"' and, therefore, were limited to the duration of the par- ties' 1989-92 contract. The Director accordingly held that the District did not violate § 209-a.1 (e) of the Act when it paid unit employees in 1992- 93 the same salaries they had been paid in the preceding school year. The Association argues in its exceptions that the terms of a contract cannot'be sunsetted lawfully, that sunset agreements, if permissible, must be manifested by plain and clear language evidencing a waiver of rig hts under § 209·a.1 (e) of the Act and, notwithstanding the above, that there is no evidence establishing the parties' intent to sunset the salary provisions of the ex- 3159 New T orK t"~Ht:S Hepons pired agreement. The District disagrees with the Association's arguments regarding sunset agreements and argues that the Director was correct in holding that the salary agreements sunsetted upon· expiration of the 1989-92 contract. Having reviewed the record and considered the parties' arguments, including those at oral argument, we affirm the Director's decision inso- far as he held that the District was not required to compute new salary schedules for 1992-93, or thereafter, but reverse insofar as the Director held that the District did not have an obligation to advance unit employees on step in accor- dance with the 1991-92 salary schedule. Initially, we address each of the Associa- tion's first two basic legal arguments concerning the nature and limits of § 209-a.l (e) of the Act. Section 209-a.l (e) of the Act requires an employer to continue all of the terms of an ex- pired collective agreement pending negotiation of a successor agreement unless the union which represents the employer's employees vio- lates the no-strike provisions of the Act. How- ever, nothing in § 209-a.l (e) restricts what the terms of those collective agreements may be or directs what they must be and nothing therein limits the parties' power and right to define the terms of their own agreement. If the parties to a bargaining relationship want to restrict the du- ration of a contract term, or to otherwise condi- tion the continuation of that contract provision, they are free to do so as a matter of law and policy. Nothing in the many cases cited by the Association or in the legislative history of § 209- a.l (e) of the Act compels or warrants a contrary conclusion. We conclude, therefore, that parties may sunset a given term in their collective bar- gaining agreement. The Association's second basic argument is that the sunsetting of a term of an agreement, if permissible, must be made manifest by plain and clear language evidencing an intentional re- linquishment of rights because a sunset repre- sents a waiver of the protections of § 209-a.l (e). This argument proceeds, however, from a mis- taken premise because a sunset agreement is simply not a waiver of § 209-a.l (e). Section 209- a.l(e) of the Act continues the terms of an ex- pired agreement, but only as those terms were 3160 negotiated by the parties. If the parties have agreed, for example, that a term of their agreement will end upon expiration of the con- tract, the employer's discontinuation of that term upon expiration of the contract is entirely consis- tent with § 209-a.l (e), if not compelled by it. In that circumstance, § 209-a.l (e) has not been waived; it never attached in a manner to require the continuation of a term of an expired agreement which the parties agreed to terminate at the end of the contract. To hoid otherwise, and require the post-expiration continuation of a term of a contract which has. ended by agreement upon expiration of that contract, would change the terms of the parties' agreement. It is, therefore, the nature of the parties' specific agreement as to a given term of their contract which determines the employer's post- expiration obligations with respect to that term under § 209-a.l (e) of the Act. In ascertaining the nature of the parties' agreement, the character of the evidence necessary to establish an agreement to a term of a contract for purposes of § 209-a.l (e) is no different than the character of the evidence necessary to establish an agreement to any other term of an agreement for any other purpose under the Act. The mutual assent essential to the formation of an agreement can be established by evidence short of that which would establish a waiver of statu- tory rights. As with any agreement, a sunset agreement can exist in any circumstance in which it can be concluded reasonably that the parties intended to restrict or condition a given term of their collective bargaining agreement. It is in this context which we assess the propriety of the District's conduct. Article V of the parties' 1989-92 contract covers salaries. That provision of the parties' contract calls for the creation of salary schedules according to a formula for the three years cov- ered by the agreement. Each salary schedule was to have 20 steps which corresponded to years of service. Steps 1, 5, 10, 15 and 20 were to be computed according to the mean of salaries in the contracts of certain specified school dis- trictS which had been ratified on or before Janu- ary 30 of the years 1989, 1990 and 1991. All other steps on the salary schedule were to be the average difference between each of the meaned i] ') I I i J I s p s a ir C is g a n g rl a S< til te Sl vi s~ f2 bI w c. D te til re t~ fa rr sl in to yE tiE el fil fo U el al bl bl st in a! w· fo ar Board Decisions 'lJ27-3070 steps. The salary schedule for 1989-90 was ap- pended to the parties' 1989-92 contract; the SChedules for 1990-91 and 1991-92 were cre- ated thereafter using the formula in Article V. This case is consistent with the analysis in Cobleskill Central School Districf' (hereafter Cobleskill). Under Cobleskill, a salary schedule is not merely a device for the identification of a given employee's salary during the life of an agreement. A salary schedule reflects simulta- neously both an individual's rate of pay for a given year and a wage system. The individual's rate of pay is represented by the dollar amounts assigned for a given year to each step of the schedule. The wage system exists in the calcula- tion of wage rates based upon component fac- tors. In Cobleskill, the component factors of that salary system were education and years of ser- . vice; here, the component factor of the wage system is years of service only. The particular factors in a wage system may vary by employer, but it is the wage system in whatever its form which is the term of the agreement subject to continuation. In examining Article V, we agree with the Director's conclusion that the parties did not in- tend the District to be under a continuing obliga- tion after expiration of the 1989-92 contract to refashion new salary schedules for years other than those covered by the agreement. The re- fashioning of those schedules could change, at most, only the dollar amounts assigned to the . step schedule. It is apparenlto us thatlhe parties in this case intended the rates of pay assigned to any given step to change only during the three years of their agreement. This aspect of the par- ties' salary schedule is properly viewed no differ- ently than if they had agreed, for example, to fixed percentage salary or flat wage increases for each of the years covered by their contract. Upon expiration of the contract, the unit employ- ees would not be entitled under § 209-a.1 (e) to additional annual percentage or flat increases in base pay until a new agreement was negotiated because it woula be manifest in that circum- stance that the salary or wage increases were intended to be granted during the term of the agreement only. Here, too, the parties effected wage increases for unit employees formulaically forthe years covered by their contract. The sal- ary schedules for each of three specified school years were to be based on data from surrounding districts as of the prior January 30, e.g., January 30, 1991 for the 1991-92 salary schedule. It is not reasonable to conclude from this language that these parties intended to have the District create a schedule for 1992-93 from January 30, 1992 data or from the data from any preceding or subsequent year for that matter. A fair reading of Article V leads us to the concluSion that the District's obligation to fashion new salary sched- ules was limited to the duration of the 1989-92 contract, that that obligation was satisfied by its fashioning of the three salary schedules and that it owed the Association no duty under § 209- a.1 (e) of the Actto create a new salary schedule for 1992-93, or any school year thereafter, until the parties reached a new agreement imposing that obligation. This leaves for consideration the separate issue of whether the District was required to ad- vance unit employees on the steps under the 1991-92 salary schedule. CObleskill controls the analysis of this issue as well. In that case, the Board held that the employer was obligated to make service advancements on a salary sched- ule contained in an expired agreement. In reach- ing that conclusion, the Board rejected the employer's argument that a reference to the years the salary schedules covered sunsetted the wage system represented by the two compo- nent parts of those salary schedules. Relying on the Board's decision in Suffolk County,3 the Director reached a contrary conclusion in this case. In Suffolk County, a reference to salaries being determined for "the four academic years covered by this agreemenf' was held to have sunsetted the employer's obligation to pay ser- vice increments after expiration of the contract. Having reexamined Suffolk County and Co- bleskill, we conclude that Suffolk County is not reasonably distinguishable from Cobleskill, and to the extent Suffolk County is inconsistent with Cobleskill, we reverse Suffolk County. In Co- bleskill, we held that the reference to the years covered by the salary schedUles was most rea- sonably viewed as a reference io the dollar amounts associated with the several service and education steps. That is the most reasonable construction of such a refer~nce in the context of a salary schedule absent evidence of a mutual intent to also abOlish or sunset the salary system 3161 itself. We cannot conclude that a simple refer- ence to the years covered by salary schedules reflects an intent to terminate the wage system embodied therein without similarly concluding that a contract's general duration clause serves to sunset all of the terms of the contract upon expiration. The former is merely a more particu- larized version of the latter and to have a con- tract's duration clause sunset all terms of that contract obviously defeats the very purpose of § 209-a.1 (e) of the Act. Moreover, the abolition of a wage system upon expiration of a contract leaves no methodology for the calculation and payment of wages, certainly as to new hires. Such a change in the terms of the parties' last agreement cannot be assumed. The District argues, however, that it had no statutory obligation to advance teachers from one step to another on any salary schedule in the absence of a new, recomputed schedule. But this argument entirely ignores that service steps in a salary schedule such as the District's, as in Cobleskill, are a component part of a wage system and it is the wage system which must be maintained upon expiration of the collective agreement. The parties admittedly did not dis- cuss the consequences of an expired agreement generally or the effect of the contract's expiration on the parties' salary agreement. There being nothing in this record to establish that the parties intended that upon expiration of the 1989-92 contract their agreement to a service-based sys- tem of compensation would expire, the District was required under § 209-a.1 (e) of the Act to advance unit employees one step annually on the 1991-92 salary schedule and to pay them at the rate specified on that schedule. For the reasons set forth above, the District violated § 209-a.1 (e) of the Act by not advancing unit employees on the steps setforth in the 1991- 92 salary schedule and by not paying unit em- ployees at the rate specified for those steps. The charge is dismissed in all other respects. IT IS, THEREFORE, ORDERED that the District: 1. Advance unit employees annually, com- mencing with the 1992-93 school year, on the steps setforth in the 1991-92 salary schedule and pay to each unit employee so advanced the difference between the salary actually 3162 ---1----- paid to such employee and the salary that would have been paid to the employee had the employee been advanced on the 1991- 92 salary schedule in accordance with this decision, such advances and payments to continue until such time as a successor to the 1989-92 agreement is negotiated, with interest at the currently prevailing maximum legal rate. 2. Sign and post notice in the form attached in all locations normally used to post notices of information to unit employees. 1 A sunset provision, in relevant respect, is an agreement between the parties to a bargaining relation- ship under which one or more terms of a collective agreement are terminated at a specified time, typically upon expiration of the contract, or upon a specified condftion. 2 16 PER8 '113057 (1983), affd, 105 A.D.2d 564, 17 PERS '117019 (3d Dep't 1964), motion for leave to appeal denied, 64 N.Y. 2d 610,1071,18 PERS'I17006 (1985). 3 18 PERS '113030 (1985), appeal dismissed as moot sub nom. Faculty Ass'n of Suffolk Community College v. P£R8, 18 PERS '117016 (Sup. Ct. Suffolk Co. 1985), affd, 125 A.D.2d 307, 20 PERS '117002 (2d Dep't 1986). 1127-3071 In the Matter of ROY B. REYNOLDS, et al., Charging Parties, and STATE OF NEW YORK (DEPARTMENT OF SOCIAL SERVICES), Respondent. Case No. U-15476 f , t , t i I f c I t ( t , I I t I I