In the Matter of Town of Islip, Appellant,v.New York State Public Employment Relations Board, et al., Respondents.BriefN.Y.April 29, 2014APL-2013-00170 Appellate Division, Second Department Docket No. 2011-10043 Suffolk County Clerk’s Index No. 17410/11 Court of Appeals STATE OF NEW YORK In the Matter of the Application of TOWN OF ISLIP, Petitioner-Appellant, against THE NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, LOCAL 237, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, and UNITED PUBLIC SERVICE EMPLOYEES UNION, Respondents-Respondents. >> >> BRIEF FOR RESPONDENT-RESPONDENT UNITED PUBLIC SERVICE EMPLOYEES UNION KOEHLER & ISAACS LLP Attorneys for Respondent-Respondent United Public Service Employees Union 61 Broadway, 25th Floor New York, New York 10006 917-551-1300 Of Counsel: Liam L. Castro Date Completed: October 10, 2013 To Be Argued By: Liam L. Castro Time Requested: 30 Minutes TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 2 STATEMENT OF THE FACTS AND PROCEDURAL HISTORY. . . . . . . . . . . . . .2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 POINT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 PERB HAD THE AUTHORITY TO COMPEL THE TOWN TO REINSTATE THE PAST PRACTICE OF PERMITTING REPRESENTED EMPLOYEES TO USE TOWN VEHICLES TO COMMUTE TO AND FROM WORK . . . .9 A. The Taylor Law and the PERB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 B. The Past Practice of Granting Town Vehicles to Represented Town Employees Is Not Inconsistent with the Town Law. . . . . . . . . . . . . . .12 C. To the Extent That the Town Law and the Taylor Law Conflict, the Taylor Law's Mandates Survive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 TABLE OF CASES AND AUTHORITIES CASE LAW PAGE(S) Amsterdam v. Helsby, 37 N.Y.2d 19 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14-17 Board of Educ. of City School Dist. v. New York State Pub. Employment Relations Bd., 75 N.Y.2d 660 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19-21 County of Nassau v. New York State Pub. Employment Relations Bd., 215 A.D.2d 381 (2d Dep't 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19, 21 County of Onondaga v. New York State Pub. Employment Relations Bd., 77 A.D.2d 783 (4th Dep't 1980) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19, 21 Doyle v. Troy, 51 A.D.2d 845 (3d Dep't 1976) . . . . . . . . . . . . . . . . . . . . . .15, 17, 18 Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Matter of Cohoes City School Dist. v. Cohoes Teachers Assn., 40 N.Y.2d 774 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Matter of Incorporated Vil. of Lynbrook v. New York State Pub. Empl. Relations Bd., 48 N.Y.2d 398 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12 Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v. New York State Pub. Empl. Relations Bd., 6 N.Y.3d 563 (2006) . . . . . . . . . . . . . . . . . . . .21-23 Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 N.Y.2d 898 (1978) . . . . . . . . . . . . . . . . . . . . . . . . .20-21 Matter of Town of Mamaronek PBA v. New York State Pub. Empl. Relations Bd., 66 N.Y.2d 722 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Matter of Town of Wallkill v. Civil Service Employees Association, Inc., 19 N.Y.3d 1066 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22-23 ii West Irondequoit Teachers Ass'n v. Helsby, 35 N.Y.2d 46 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Federal: Jackson Purchase Rural Electric Cooperative Asso. v. International Brotherhood of Electrical Workers, 646 F.2d 264 (6th Cir. 1981) . . . . . . . . . . . . . . . . . .23-24 United States DOJ v. Fed. Labor Rels. Auth., 727 F.2d 481 (5th Cir. 1984) . . . 24-25 STATUTES PAGE(S) NY CPLR Art. 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 NY CPLR § 7803(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 NY CIV. SERV. L. Art. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 NY CIV. SERV. L. § 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 NY CIV. SERV. L. § 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 NY CIV. SERV. L. § 201(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 NY CIV. SERV. L. § 204(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 NY CIV. SERV. L. § 209-a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 NY CIV. SERV. L. § 209-a.1(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 6, 11 NY CIV. SERV. L. § 209-a.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 NY CIV. SERV. L. § 209(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 NY CONST., art. IX, § 2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16 iii NY CONST., Art IX, § 3(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 NY EDUC. L. § 2590-g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 21 Islip Code § 14-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Islip Code § 14-28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 18-19 Town Law § 155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 iv PRELIMINARY STATEMENT In this appeal the Petitioner-Appellant Town of Islip (“Town”) asks this Court to reverse the Appellate Division, Second Judicial Department’s decision to enforce and uphold the New York State Public Employment Relations Board’s (“PERB”) decision that (1) the assignment of Town owned vehicles to certain union-represented employees was a mandatory subject of bargaining; (2) the Town unilaterally discontinued a long standing past practice of assigning to these employees Town owned vehicles that were used to travel to and from work; and (3) therefore the Town violated NY CIV. SERV. L. § 209-a.1(d). The Respondent-Respondent United Public Service Employees Union (“UPSEU”) submits this brief in opposition to the Town’s appeal. In sum, and perhaps in substance, the Town argues that a Local Law, which in their view prohibits the use of Town vehicles for personal use, will serve to essentially destroy, and certainly trump, the mandates of the Taylor Law and the strong public policy favoring collective bargaining over well-settled terms and conditions of employment. As more fully explained below, (1) the Town Law does not prohibit the type of use of Town vehicles that is at issue here and, assuming that it does, (2) to the extent that any local law impairs the ability for a union to negotiate mandatory subjects of bargaining, the local law at issue is invalid. 1 QUESTION PRESENTED Does the Town Law at issue here alter the Town’s statutory obligation to collectively bargain with the employees’ labor representative over the Town’s unilateral decision to change a long standing past practice of allowing certain employees to use Town vehicles to commute to and from work? As more fully explain below, this Court should uphold the Appellate Division’s decision holding that it does not. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY Before September 21, 2010, the International Brotherhood of Teamsters, Local 237 (“Local 237”) and Town were parties to collective bargaining agreements covering Town employees in the blue and white collar units. Record on Appeal (“R.”) 8, 180-217 (blue collar CBA); 218-258 (white collar CBA). On September 21, 2010, Local 237 was decertified as the labor representative for the blue collar unit, and the UPSEU became the certified labor representative for that unit. R. 8. Thereafter, in September 2013, after this Court granted the Town leave to appeal, the UPSEU became the certified labor representative for the white collar unit as well. The UPSEU now represents employees in both the blue and white collar units. In about 1968 the Town promulgated Islip Code § 14-12. It states: No officer or employees shall request or permit the use of 2 Town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business. R. 321. It also states at § 14-28: Nothing contained in this local law shall limit any other applicable law or ordinance which are now or may hereafter be provided. R. 332. In about 1990 the Town amended its Administrative Manual. It states, in part, The Town of Islip will provide its elected officials and [T]own employees vehicles and equipment to be used in the performance of their duties for the Town. In a limited number of instances, due to the nature of their position, employees will be assigned a Town vehicle on a permanent basis and may take the vehicle home. All such assignments will be approved by the Supervisor. R. 259, 344 (Emphasis supplied). Based on the record which was before the PERB, and is now before this Court, the Town had about a twenty-year practice of assigning Town owned vehicles to c represented employees. R. 83. Specifically, until about 2008 employees were permitted to use those vehicles on a twenty-four hour, seven day a week basis for official business, and also to commute to and from work. R. 68-72, 76-81, 97. Ronald Devine (“Devine”), the Town’s Assessor since 1999, testified at the PERB 3 that vehicles were assigned to represented employees permanently for both on duty use and travel to and from work, and that he believed this practice existed for about twenty years. R. 68-72, 76-81, 83. Devine also testified that he continued this practice from his predecessor in the assignment and permissible use of Town owned vehicles. R. 84-85. Likewise, Peter Kletchka (“Kletchka”), a Town employee since 1988, testified that he was assigned a Town owned vehicle and was permitted to use that vehicle to travel to and from work since 2000. R. 90-96. The Town did more than simply permit certain represented employees to use Town owned vehicles to travel to and from work; it addressed the tax implications for those employees. Devine and Robert Finnegan (“Finnegan”), the Director of Labor Relations, testified that employees were charged a fee of $3.00 per work day for use of the vehicle. R. 74-76; 150-151. In 2007, Local 237 and the Town began to negotiate a successor collective bargaining agreement for both the blue collar and white collar units. R. 109-112, 305, 307. Since the UPSEU was not certified as the labor representative for the blue and white collar units until 2010 and 2013, respectively, it was not a part of these negotiations. R. 8, 387. However, the record before the PERB reveals that during collective bargaining the Town proposed to eliminate the practice of permitting represented employees to use Town owned vehicles to travel to and from work. R. 4 109-112, 305, 307. The Town subsequently withdrew this particular proposal, reasoning that this subject was not a mandatory subject of bargaining. R. 129-135, 339-342. Thereafter, on April 29, 2008, the Town unilaterally adopted what was seemingly a new policy of limiting permanent vehicle assignment to (1) elected officials, (2) those who must be available twenty-four hours a day, seven days a week to respond to a Town emergency, and (3) employees who have no assigned reporting station and who perform their duties at multiple sites. R. 270-271, 122-123, 333-334. All other employees, about 45 in total, who previously were assigned Town owned vehicles were required to relinquish those vehicles and could not use them to travel to and from work. R. 122, 127, 146, 301. Employees were then required to report to their work site, and then obtain a Town vehicle. R. 120-121. As a result of the Town’s unilateral act, on or about July 1, 2008, Local 237 filed an improper practice charge with the PERB. R. 23-30. There, Local 237 alleged that the Town violated NY CIV. SERV. L. §§ 209-a.1(a) and (d) by unilaterally adopting a policy which eliminated represented employees’ use of Town vehicles to commute to and from work. R. 23-30. On or about August 5, 2008, the Town filed an Answer to the Charge. R. 31-38. On July 1, 2009, a PERB administrative law judge, Elena Cacavas (“ALJ 5 Cacavas”), held a hearing where Local 237 and the Town presented documentary and testimonial evidence. R. 39-342. On March 1, 2010, ALJ Cacavas issued a Decision finding that the Town violated NY CIV. SERV. L. § 209-a.1(d), but not NY CIV. SERV. L. § 209-a.1(a). R. 343-357. Accordingly, ALJ Cacavas ordered the Town to: 1. Forthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed this benefit; 2. Forthwith make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the 24/7 vehicle assignment(s), if any, together with interest at the maximum legal rate; and 3. Sign and post the attached notice at all locations customarily used to post notices to unit employees. R. 356-357. Both Local 237 and the Town then filed exceptions to ALJ Cacavas’s decision and order. R. 361-378. On May 27, 2011, after the UPSEU became the certified bargaining representative for the blue collar unit, the PERB affirmed ALJ Cacavas’s decision and order. R. 379-386. There, the PERB made several findings. The PERB found that there was an eighteen year past practice of permitting represented employees who were assigned Town owned vehicles to use them to commute to and from work. R. 380. Second, the permissible use of these vehicles to commute was an economic benefit. R. 381. The PERB rejected that Town Ordinance § 14-12 and 6 the 1990 Administrative Policy justified and permitted the Town’s unilateral decision to end the past practice. R. 382. The PERB reasoned that a “local law is invalid to the extent that it precludes collective negotiations that are mandated by the Act, and a unilateral change to a mandatory subject by an employer is a violation of its duty to negotiate in good faith, actions by its legislative body notwithstanding.” R. 382. The PERB further rejected that the vehicles were “equipment” because the personal use of vehicles does not relate directly to the manner and means by which services are provided. R. 383. As a result, the PERB affirmed ALJ Cacavas’s order that the Town restore the vehicle assignments for commutation between home and work, reimburse the affected employees for any extra expenses incurred as a result of the unilateral change, and sign and post the appropriate notice. R. 356-357, 384-385. On or about June 29, 2011, the Town filed with Supreme Court, Suffolk County a Notice of Petition and Verified Petition challenging the PERB’s decision and order. R. 5-19. On August 31, 2011, the UPSEU answered the Verified Petition. R. 387-393. On October 5, 2011, the Supreme Court transferred this proceeding to the Appellate Division, Second Department pursuant to NY CPLR § 7804(g). R. 1-4. By Decision and Judgment dated March 13, 2013, the Appellate Division, Second Department confirmed the PERB’s determination. R. 414-418. There, the Appellate Division held that the PERB’s “determination was not affected by an error 7 of law” for two reasons. R. 417. First, . . . the Town could be required to collectively bargain over the issue. The Town government was responsible for administering the Ethics Code and for managing its vehicle fleet. Yet, as substantial evidence in the record establishes, the Town frequently and openly ignored that Code and its policy for managing its vehicle fleet, only to contend later that the Code allowed it to act unilaterally in taking the vehicles away from the employees who had been permanently provided with them. The PERB was not required to give more effect to the Town Ethics Code than the Town itself gave to it. Id. The Court continued, Second, for similar reasons, it cannot be said as a matter of law that it is unreasonable for employees to rely on the administering authority's interpretation and implementation of its policy and Ethics Code. Consequently, the PERB's determination was not affected by an error of law, arbitrary and capricious, or an abuse of discretion. Id. The Appellate Division also held that the PERB’s determination was supported by the substantial evidence. Id. In doing so, the Court relied on the fact that (1) “use was unequivocal and continued uninterrupted for a period of time” and therefore “created a reasonable expectation among the affected unit employees that the practice would continue”; (2) the assignment of Town vehicles “was done openly and without any indication to the employees that it was other than legitimate”; and (3) the Town 8 “deduct[ed] a certain amount from the employees' paychecks to account for the value of the benefit”. Id. On or about May 7, 2013, the Town sought from this Court leave to appeal pursuant to NY CPLR § 5602(a)(1)(I) and 22 N.Y.C.R.R. § 500.21, which this Court granted on June 27, 2013. R. 412-413. ARGUMENT POINT I PERB HAD THE AUTHORITY TO COMPEL THE TOWN TO REINSTATE THE PAST PRACTICE OF PERMITTING REPRESENTED EMPLOYEES TO USE TOWN VEHICLES TO COMMUTE TO AND FROM WORK It bears note at the outset that the Town has apparently abandoned all but one of its prior arguments. The Town argued to the Appellate Division that (1) there was no substantial evidence to support the PERB’s determination; (2) the assignment of Town owned vehicles was not a mandatory subject of bargaining because the vehicles were “equipment”; and (3) that the PERB should have considered the Town’s fiscal savings achieved by this unilateral change in determining what obligation, if any, the Town had to bargain. R. 16-17; 417. What remains, and the crux of the Town’s argument before this Court spread across five points in their brief, is that the PERB (1) does not have the authority to compel it to continue an illegal past practice of 9 permitting any personal use of Town vehicles; and (2) violated public policy when it ordered the Town to continue to violate the Town Code. Before we counter this point, we briefly examine the purpose of the Taylor Law and the PERB’s authority thereunder. A. The Taylor Law and the PERB. Generally, the Taylor Law grants to public employees the right to organization and collective negotiations with public employers. NY CIV. SERV. L. § 200. This Court has long recognized the “strong and sweeping policy of the State to support collective bargaining under the Taylor Law”. Matter of Cohoes City School Dist. v. Cohoes Teachers Assn., 40 N.Y.2d 774, 778 (1976); Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73, 79 (2000). As is relevant here, the Taylor Law requires public employers, like the Town, to collectively bargain over “terms and conditions of employment of the public employees”. NY CIV. SERV. L. § 204 [2]). The Legislature defined “terms and conditions of employment” to mean “salaries, wages, hours and other terms and conditions of employment. . . ” NY CIV. SERV. L. § 201(4). However, there is a “presumption . . . that all terms and conditions of employment are subject to mandatory bargaining”. Matter of City of Watertown v. State of N.Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73, 79 (2000). It 10 is an improper practice subject to the jurisdiction of the PERB for a public employer to refuse to negotiate over mandatory subjects of bargaining (i.e., terms and conditions of employment). NY CIV. SERV. L. § 209-a.1(d). The PERB is an administrative agency established to administer the Taylor Law. NY CIV. SERV. L. Art. 14. The Legislature left to the PERB the power to, among other things, interpret and construe the statutory scheme and what is a term and condition of employment. West Irondequoit Teachers Ass'n v. Helsby, 35 N.Y.2d 46, 51 (1974). Where, for example, the PERB’s determination is based on the construction of the Taylor Law, courts defer to the agency's conclusion because the PERB is “presumed to have developed an expertise” with the policies of that law. Matter of Town of Mamaronek PBA v. New York State Pub. Empl. Relations Bd., 66 N.Y.2d 722, 723 (1985). Accordingly, in a proceeding instituted under NY CPLR Article 78 where the question is whether the administrative agency made a correct legal interpretation of the Taylor Law, a court’s task is merely to see whether the determination “was affected by an error of law or was arbitrary and capricious or an abuse of discretion.” NY CPLR § 7803(3). In addition, when the PERB’s interpretation is “legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation.” Matter of Incorporated Vil. of Lynbrook v. New York State Pub. 11 Empl. Relations Bd., 48 N.Y.2d 398, 404 (1979). B. The Past Practice of Granting Town Vehicles to Represented Town Employees Is Not Inconsistent with the Town Law. The Town first argues that the PERB does not have authority to compel the Town to continue an illegal past practice. Town’s Brief at pp. 8-13. However, a close reading of the Town practice itself is not inconsistent with the Local Law at issue here. Islip Code § 14-12 states, in relevant part: No officer or employees shall request or permit the use of Town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business. R. 321. The record below reveals that Town did not violate this provision. For example, Devine testified: [b]asically that we told the candidate, and then if it (sic) became a subsequent employee, that if they were assigned a vehicle, they would use the vehicle in the performance of their official duties that they hold and they were allowed to use the vehicle to take home[.] . . . They’re allowed to use the vehicle to take home to their residence, they were allowed to use it for official purposes only. They were not allowed - - we told them they were not allowed to carry family members in that vehicle nor make personal, personal use of the vehicles. Its only to take from one position to another and then back. R. 71-72. 12 This testimony reveals that the purpose of the vehicle assignment was to permit the employees to conduct only official business. Id. In fact, the employees were not permitted to carry family members or conduct any personal business. Therefore, this assignment was not intended to permit, nor did it allow in practice, the employee to personally profit from such assignment, or to have a greater convenience than any other employee. In addition, in what we believe was likely an act to avoid any appearance of “personal convenience or profit” through the employees’ use of such vehicles, the Town accounted for the tax implications for the limited use of Town vehicles for commutation. It appears from the record that the ability of the employees to use the Town vehicles to commute to and from work was a by-product of the purpose of such assignment. Therefore, the past practice of granting town vehicles to represented town employees is not inconsistent with the Town Law, as the Town suggests. C. To the Extent That the Town Law and the Taylor Law Conflict, the Taylor Law’s Mandates Survive. Assuming, for argument’s sake, that the past practice of granting Town vehicles to represented Town employees is inconsistent with the Town Law, as the Town suggests, the Taylor Law’s policy of requiring negotiations should survive. The issue of whether the PERB has the authority to compel the Town to continue a 13 past practice which the Town believes violated, and continues to violate, the Town Code, as the Town argues, can be restated in a different way: when the mandates of the Taylor Law and a Local Law conflict, which law’s language survives? We believe the Taylor Law survives for two reasons. First, to the extent that any local law impairs the ability of a union to negotiate mandatory subjects of bargaining, the local law is invalid. Amsterdam v. Helsby, 37 N.Y.2d 19 (1975); Doyle v. Troy, 51 A.D.2d 845 (3d Dep't 1976). We discuss Amsterdam first, within which this Court decided two cases. The first was City of Amsterdam v. Helsby, 79 Misc. 2d 676 (NY Sup. Ct., Montgomery County,1974). There, the city and union representing policemen and firemen reached an impasse in their negotiations. 37 N.Y.2d at 26. The union sought compulsory and binding arbitration under NY CIV. SERV. L. § 209(4), which had been added to the Taylor Law about one year prior to the Court’s decision. Id. The city obtained a temporary restraining order concerning the arbitration, and then a final judgment prohibiting the arbitration. Id. The lower court also declared the amendment to NY CIV. SERV. L. § 209 to be unconstitutional. The second case decided by Amsterdam was City of Buffalo v. New York State Pub. Empl. Relations Bd., 80 Misc. 2d 741 (NY Sup. Ct., Erie County,1975). 37 N.Y.2d at 26. There, the city and the unions representing policemen and firemen 14 also reached an impasse, and the unions sought compulsory and binding arbitration. Id. In an action to declare NY CIV. SERV. L. § 209, as amended, to be unconstitutional, the lower court held amendments to be constitutional. Id. The appeals in both cases culminated in one Court of Appeals decision. Amsterdam, supra. In Amsterdam there were two statutes which conflicted. The first was the amendment to NY CIV. SERV. L. § 209 which provided “that disputes arising in the course of collective bargaining negotiations between a public employer and its firemen and policemen are to be submitted to binding arbitration when the negotiations reach an impasse.” 37 N.Y.2d at 25. The second was the Home Rule provisions of the New York State Constitution, NY CONST. Art. IX, § 2(c), which states: In addition to powers granted in the statute of local governments or in any other law . . . (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government: (1) The powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare 15 and safety of its officers and employees. (Emphasis supplied). This Court recognized the apparent conflict between the two statutes. “[O]nce an impasse is reached and arbitration is sought [under NY CIV. SERV. L. § 209], an attempt by the local government to establish the hours of work, compensation, and so on, of its policemen and firemen [under the Home Rule powers] would be entirely inconsistent with the compulsory and binding arbitration procedure established by the Legislature.” 37 N.Y.2d at 26-27. As the NY CONST. Art. IX, § 2(c) makes clear, a local law governing, among other things, compensation cannot be inconsistent with “any general law.” That begs the question: is the Taylor Law, as amended, a “general law”? This Court in Amsterdam said that it is. The Court held that “a ‘general law’ in this context is defined as “[a] law which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages.’” 37 N.Y.2d at 27 citing NY CONST., Art. IX, § 3(d)(1). “As the Public Employees' Fair Employment Act (Civil Service Law, §§ 200-214) is, by its own terms, applicable to all public employers, it is a ‘general law’. Since neither of the challenged amendments to that law is any narrower in application, it follows that each amendment is itself a general law’.” Id. Accordingly, the Court held that “[i]n such a situation it should be apparent that the local government must yield to the dictates 16 of the arbitration panel convened pursuant to these legislative enactments.” 37 N.Y.2d at 27. Amsterdam applies herein, and to the extent that the Town Law impairs the represented employees’ right to negotiate with the Town over the use of Town owned vehicles, the impact of which resulted in employees’ ability to commute to and from home. Yet, unlike in Amsterdam, the law at issue is a local law, which the Town arguably never enforced in the way it seeks to now. Whereas, in Amsterdam, the conflicting law was a State law. Likewise, Amsterdam is consistent with the Third Department’s decision in Doyle v. Troy, supra. In Doyle, the Court held that a charter provision is invalid to the extent that it is inconsistent with the Taylor Law. 51 A.D.2d at 845. That court held: Since the instant charter provision impairs the full range of negotiations to which the city is entitled under the Taylor Law, it is inconsistent therewith and unauthorized and prohibited. . . . Consequently, Special Term properly found the charter provision invalid. Id. Here, the Town is essentially arguing that Islip Code § 14-12 effectively absolves it from negotiating what the PERB has long held was and is a mandatory subject of bargaining. County of Nassau v. New York State Pub. Employment Relations Bd., 215 A.D.2d 381 (2d Dep't 1995) (holding that the employer violated NY CIV. SERV. 17 L. § 209 -a(1)(d) by unilaterally abolishing the long-standing practice of allowing certain employees to use employer owned vehicles to drive to and from work); County of Onondaga v. New York State Pub. Employment Relations Bd., 77 A.D.2d 783 (4th Dep't 1980) (holding the same). Here, as in Doyle, this Court should reject this argument. We can illustrate our point using a more simple, yet sufficiently identical, example: A town local law enacted in 1900 requires that their employees wages do not exceed the average salary of its residents. In the 1960s, the Taylor Law is enacted requiring municipalities like the town to negotiate over terms and conditions of employment, which includes by definition wages. Thereafter, the local law is not enforced, and the town had a past practice of paying its represented employees beyond the average salary of town residents. Sometime in 2010, citing the town’s local law, the town then rejects the union’s request to negotiate wages beyond the average starting salary of town residents, and then reduces salaries to the average salary of town residents. In this hypothetical, the town law clearly impairs the union’s ability to negotiate its members’ wages. To the extent that the town law impairs the union’s ability, it cannot remain survive as against the Taylor Law’s clear mandate to municipal employers. Likewise, the Town Law can arguably itself support the notion that the Town Law cannot limit another law. Islip Code § 14-28 states: Nothing contained in this local law shall limit any other 18 applicable laws or ordinances which are now or may hereafter be provided. R. 332. The Islip Law at issue, § 14-12 does limit the UPSEU’s ability to negotiate what has long been held to be a mandatory subject of bargaining. R. 321. See County of Nassau, supra.; County of Onondaga, supra. In fact, it effectively prohibits the Town from negotiating that subject because it conceivably bars any personal use of Town vehicles. Such a local law cannot stand to override the Taylor Law. The second reason why the mandates of the Taylor Law should dictate any contradictory language of a local law conflict is that the public interest in, and public policy favoring, collective bargaining outweighs the Town’s interest here. Board of Educ. of City School Dist. v. New York State Pub. Employment Relations Bd., 75 N.Y.2d 660 (1990). In Board of Educ. Of City School Dist. the Legislature amended NY EDUC. L. § 2590-g authorizing the New York City School Board (“Board”) to obtain certain financial disclosures from its officers and employees. 75 N.Y.2d at 663. Nine years later, and in response to certain improprieties by the Board’s Chancellor, the Board adopted two regulations requiring certain employees to (1) submit detailed annual financial disclosure statements; (2) undergo an in-depth financial and health background investigation; (3) disclose political affiliations; (4) submit to fingerprinting; and (5) hold the City harmless for all damages arising out of the 19 investigation. Id. at 663-664. Thereafter, several unions filed improper employer practice charges with the PERB, sought negotiations over the disclosure requirements and background investigations, and argued that they constituted “terms and conditions of employment”. Id. at 664. The PERB ruled that while the Board had no duty to negotiate specific financial reporting requirements, it could not unilaterally require disclosure of certain information. Id. On appeal, the Board argued that its disclosure requirements are either prohibited subjects of collective bargaining by virtue of the strong public interest in rooting out corruption (as a prohibited subject of bargaining), or the Board could unilaterally decide not to negotiate the disclosure requirements (as a permissive subject of bargaining). Id. at 666. This Court made several holdings. First, concerning the question of whether the disclosure requirements are a prohibited subject of bargaining, this Court acknowledged that the Taylor Law’s mandate to bargain as to all terms and conditions of employment is a “strong and sweeping policy of the State”. Id. at 667. Therefore, the Court concluded, “. . . a public policy strong enough to require prohibition would ‘almost invariably [involve] an important constitutional or statutory duty or responsibility.’” Id. at 667-668 citing Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 20 45 N.Y.2d 898, 899 (1978). This Court reasoned that while the Legislature could explicitly prohibit collective bargaining, NY EDUC. L.§ 2590-g (14) has no such prohibition, nor does it leave no room for bargaining. Id. at 668. Likewise, this Court refused to “discern a public policy that requires that employees, prospectively, be denied any voice in the matter [how to eliminate corruption]”. Id. at 669. Here, as in Board of Educ. Of City School Dist. the public employer seeks to justify its decision not to bargain over an issue which has historically been a mandatory subject of bargaining on the basis that its own Town Law (as opposed to a state law) which it believes does not permit such negotiations. See County of Nassau, supra.; County of Onondaga, supra. Yet, it does not argue anywhere that the strong public policy of collective bargaining is outweighed by any policy that is advanced by the Town Law. The Town cites to two of this Court’s decisions for the proposition that the Town Law supercedes any bargaining obligations that NY CIV. SERV. L. § 209-a imposes thereon. The first was Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v. New York State Pub. Empl. Relations Bd., 6 N.Y.3d 563 (2006). There, the Court held that the enactment of the New York City Charter, the Administrative Code, and the Rockland County Police Act all which govern discipline of police officers were sufficiently “important” to overcome policy favoring collective 21 bargaining. Id. at 576. The Court explained that “[P]olice discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials”. Id. at 570. The Court noted that NY CIV. SERV. L. §§ 75 and 76 generally govern “the procedures for disciplining public employees, including police officers,” and where applicable, “police discipline may be the subject of collective bargaining.” However, in that case this Court recognized that “the need for authority over police officers will sometimes yield to the claims of collective bargaining. But the public interest in preserving official authority over the police remains powerful.” This distinguishes Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. from the case at bar since nothing at issue here concerns any authority over the police. What further distinguishes this case at bar is that there is no policy, state or Town, at issue here that conflicts with the Taylor Law. The second of the two decisions which the Town cites was Matter of Town of Wallkill v. Civil Service Employees Association, Inc., 19 N.Y.3d 1066 (2012). There, “[a]pplying Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. . . ., we conclude that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law § 155. Town Law § 155, a general law enacted prior to Civil Service Law §§ 75 and 76, commits to the Town ‘the power and authority to adopt 22 and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department’.” Id. at 1069. Since this Court in Matter of Wallkill seemingly and entirely relied on Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., Matter of Wallkill is distinguished from the case at bar for the same reasons as expressed above. The Town also cites to several federal decisional law to support the notion that a past practice that violates the Town Law cannot ripen into a binding term and condition of employment. As explained below, the two it discusses at length do not apply here. The first was Jackson Purchase Rural Electric Cooperative Asso. v. International Brotherhood of Electrical Workers, 646 F.2d 264 (6th Cir. 1981). There, the employer unilaterally eliminated a 16-year past practice of deducting dues from employee paychecks and paying them to the union without written authorization from the employees. Id. at 266. The union presented a grievance to an arbitrator, who concluded that even though the practice had violated federal law, it had created an implied agreement between the employer and the union which could not be unilaterally terminated. Id. On appeal, the Sixth Circuit held that the only implied agreement between the parties was an agreement to check off dues without written authorization. Id. at 267. So viewed, “the arbitrator's award depended on the illegal 23 past practice, thus was not based on the collective bargaining agreement, and the District Court was correct in setting it aside.” Id. at 268. Here, unlike in Jackson Purchase, and as explained above, there is a balancing of two arguably conflicting laws, the Taylor Law and the Local Law. And, to the extent that the two conflict here, as explained above, the Taylor Law's strong public policy of requiring negotiations over mandatory subjects of bargaining should survive. The Town also cited United States DOJ v. Fed. Labor Rels. Auth., 727 F.2d 481 (5th Cir. 1984). There, Immigration and Naturalization Services Northern Region ordered that its agents use commercial air travel to reach a particular temporary duty post, rather than their own vehicles. Id. At 484. In response, the union representing the affected employees filed an unfair labor practice charge. Id. The administrative law judge found that there was a past practice in the Northern Region of permitting agents to use their personally owned vehicles rather than public transportation. Id. At 485. On appeal, the Fifth Circuit held that: [b]ecause a case-by-case determination must be made in each instance regarding the mode of transportation used by the employee, the INS did not have the broad discretion necessary to establish a uniform or controlling “past practice” of allowing agents of the Northern Region to use their POVs in travelling (sic) to extended details outside the region. There being no uniform practice, and hence no 24 “past practice,” the agency could not have made a unilateral change and accordingly, no violation of section 7116(a)(1) and (5) could have resulted from that refusal. Id. at 490. In United States DOJ, the Court found that there was no “uniform practice” since the regulation at issue required the employer to make a case-by-case determination in each instance regarding the mode of transportation. Whereas, here, there is no dispute that there was a uniform practice. We submit that the holding in United States DOJ does not stand for the proposition that an “illegal past practice” has essentially no affect whatsoever, as the Town contends. In any event, they are not controlling here. See NY CIV. SERV. L. § 209-a.6 (“In applying this section, fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent.”). 25 CONCLUSION For the foregoing reasons, the UPSEU respectfully requests that this Court affirm the Appellate Division’s decision. Dated: October 10, 2013 New York, NY KOEHLER & ISAACS LLP Attorneys for Respondent-Respondent United Public Service Employees Union 61 Broadway, 25th floor New York, NY 10006 (917) 551-1300 By: ________________________ Liam L. Castro, Esq. 26