In the Matter of Town of Islip, Appellant,v.New York State Public Employment Relations Board, et al., Respondents.BriefN.Y.April 29, 2014 APL-2013-00170 Time Requested: 10 Minutes To Be Argued by David P. Quinn STATE OF NEW YORK – COURT OF APPEALS In the Matter of the Application of the TOWN OF ISLIP, Petitioner-Appellant, - against - THE NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOAR D, LOCAL 237, INTERNATIONAL BROTHERHOOD OF TEAMSTERS a nd UNITED PUBLIC SERVICE EMPLOYEES UNION, Respondents-Respondents. __________________ Suffolk County Index No. 17410/2011 __________________ BRIEF ON BEHALF OF RESPONDENT-RESPONDENT NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD DAVID P. QUINN Attorney for Respondent NYS Public Employment Relations Board Office and P. O. Address 80 Wolf Road - Fifth Floor- Room 500 Albany, NY 12205-2656 Telephone: (518) 457-2678 Fax: (518) 457-2664 Dated: October 10, 2013 1 Table of Contents Page Table of Authorities .......................................................................................... i Preliminary Statement ..................................................................................... 1 Questions Presented .............................................................................................. 2 Statement of the Case ............................................................................................ 2 ARGUMENT Introduction .................................................................................................... 10 POINT I THE TOWN’S 1968 CODE OF ETHICS AND FINANCIAL DISCLOSURE LAW DOES NOT AFFECT ITS COLLECTIVE BARGAINING OBLIGATIONS WITH TEAMSTERS CONCERNING THE TERMINATION OF THE TOWN’S LONG STANDING PRACTICE OF PERMITTING CERTAIN TEAMSTERS REPRESENTED EMPLOYEES TO USE TOWN OWNED VEHICLES TO COMMUTE TO AND FROM WORK .............................................................. 13 A. The Town’s 1968 Code of Ethics and Financial Disclosure Law cannot defeat its bargaining obligations under the Taylor Law. ...... ............................................ 13 B. By its terms, the Town’s 1968 local law does not defeat its bargaining obligations under the Taylor Law. ................................................................ 16 C. The Town’s 1968 Code of Ethics and Financial Disclosure Law, as interpreted and applied by the Town for at least 17 years, does n t prohibit the establishment of the at-issue practice......................................................................................... 17 2 POINT Ii PERB’S REMEDIAL ORDER WAS A LAWFUL EXERCISE OF ITS REMEDIAL POWERS UNDER CSL § 205.5 (d) AND PROPERLY ENFORCED UNDER CSL § 213 (a) (ii) ............................................................................ 21 CONCLUSION .............................................................................................. 24 -i- TABLE OF AUTHORITIES Page(s) CASES Albany Area Builders Assn v Town of Guilderland, 74 NY2d 372 (1989).................................................................................................14 Board of Cooperative Educ Servs Sole Supervisory Dist, Onondaga and Madison Counties v New York State Pub Empl Relations Bd, (3d Dept 1981) ...........................................................................................................14 Board of Educ of the City Sch Dist of the City of Bu falo v Buffalo Tchrs Fedn, Inc, 89 NY2d 370 (1996)...................................................................................................2 Chenango Forks Cent Sch Dist v New York State Pub Empl Relations Bd, 21 NY3d 255 (2013)............................................................................................3, 10, 1 City of Mount Vernon v Cuevas, 33 PERB ¶ 7015 (Sup Ct Albany County 2000), affd 289 AD2d 674 (3d Dept 2001), lv denied 97 NY2d 613 (2002) ............................................................23 City of New York v New York State Pub Empl Relations Bd, 103 AD3d 145 (3d Dept 2012), lv denied 21 NY3d 855 (2013) .............................11 City of New York v New York State Pub Empl Relations Bd, 85 AD3d 1439 (3d Dept 2012), leave denied 21 NY3d 855 (2013) ......................21 City of Utica v Zumpano, 91 NY2d 964 (1998).................................................................................................14 Cohen v. Bd. of Appeals of Vill of Saddle Rock, 100 NY2d 395 (2003) ................................................................................................14 Department of Interior, Bureau of Reclamation, 20 F.L.R.A. 587 (1985) ................................................................................................20 Department of the Navy, Philadelphia Naval Shipyard, 18 F.L.R.A. 902 (1985) ................................................................................................20 Fashion Inst of Tech v New York State Pub Empl Relations Bd., 68 AD3d 605 (1st Dept 2009) ......................................................................................11 -ii- Matter of Doyle v City of Troy, 51 AD2d 845 (3d Dept 1976) ...............................................................................13, 14 Jackson Purchase Rural Electric Cooperative Association v. Local, Union 816, International Brotherhood of Electrical Workers, 646 F.2d 264 (6th Cir. 1981) ........................................................................................19 Manhasset Union Free Sch Dist v New York State Pub Empl Relations Bd, 61 AD3d 1231 (3d Dept 2009) ...................................................................................11 Matter of Board of Educ of City School Dist of City of New York v New York State Pub Empl Relations Bd, 75 NY2d 660 (1990).................................................................................................3, 13 Matter of City of Albany v Helsby, 29 NY2d 433 [1972].................................................................................................22 Matter of City of Albany v Helsby, 56 AD2d 976 [3d Dept 1977] .....................................................................................22 Matter of City of Poughkeepsie v Newman, 95 AD2d 101 (3d Dept 1983), appeal dismissed 60 NY2d 859 (1983), lv denied 62 NY2d 602 (1984) ..................................................................................11, 22 Matter of County of Nassau (Civil Serv Emps Assn), 13 PERB ¶ 3095 (1980), confd sub nom. County of Nassau v New York State Pub Empl Relations Bd, 14 PERB ¶7017 (Sup Ct Nassau County 1981), affd 87 AD2d 1006 (2d Dept 1982), app denied 57 NY2d 601 (1982) ...........................................................................................................................10 Matter of County of Onondaga (Civil Serv Emps Assn), 12 PERB ¶ 3035 (1979), confd sub nom. County of Onondaga v New York State Pub Empl Relations Bd, 77 AD2d 783 (4th Dept 1980) ........................10 New York State Pub Empl Relations Bd v Board of Educ of City of Buffalo, 39 NY2d 86 (1976) ...................................................................................................21 New York State Pub Empl Relations Bd v County of Westch ster, 280 AD2d 849 (3d Dept 2001) ...................................................................................21 City of New York v Council of City of New York, 9 NY3d 23 (2007) .....................................................................................................13 -iii- Patrolmen’s Benevolent Assn of the City of New York, Inc. v New York State Pub Empl Relations Bd, 6 NY3d 563 (2006) (“NYCPBA”) ..............................................................................15 Portsmouth Naval Shipyard Portsmouth, New Hampshire, 49 F.L.R.A. 1522 (1994) ..............................................................................................19 Ridge Road Fire Dist v Schiano, 16 NY3d 494 (2011).................................................................................................10 Saratoga Springs Cent Sch Dist, 11 PERB ¶3037 (1978), confirmed sub nom Saratoga Springs Cent Sch Dist v New York State Pub Empl Relations Bd, 68 AD2d 202 (3d Dept 1979), lv denied 47 NY2d 711 (1979) ................... 13 Town of Wallkill v New York State Pub Empl Relations Bd, 19 N.Y.3d 1066 (2012) ................................................................................................15 United States Department of Justice v Federal Labor Relations Authority, 727 F2d 481 (5th Cir. 1984) ...................................................................................19, 20 Village of Catskill, 43 PERB ¶ 3001 (2010) ............................................................ 15 STATUTES CPLR 7804 (g) ...................................................................................................................9 CPLR Article 78 ................................................................................................................1 Civil Service Law (“CSL”) § 205.5 (d) .................................................................. passim CSL § 75 ............................................................................................................................15 CSL § 76.4 ..................................................................................................................15, 23 CSL § 200 ...........................................................................................................................2 CSL § 201.4 ........................................................................................................................3 CSL §§ 203, 204.2 ............................................................................................................3 CSL § 209-a ..................................................................................................................4, 19 CSL § 209-a.1 (d) .................................................................................................... passim -iv- CSL § 209-a.4 (i) .............................................................................................................16 CSL § 209-a.6 ..................................................................................................................19 CSL § 213 (a) (ii) ................................................................................................1, 2, 12, 21 Town Law § 155..............................................................................................................15 OTHER AUTHORITIES New York City Charter ..................................................................................................15 Town’s 1968 Code of Ethics ..................................................................................... passim Town’s April 2008 ordinance .............................................................................................8 -1- PRELIMINARY STATEMENT Respondent-Respondent New York State Public Employment Relations Board (“PERB” or “Board”) submits this brief in opposition to the appeal taken by Petitioner-Appellant Town of Islip (“Town”) from a March 13, 2013 Decision and Judgment of the Appellate Division, Second Department, in a CPLR Article 78 proceeding that the Town commenced for review of an M y 27, 2011 final administrative decision and remedial order that PERB issued in an improper practice proceeding conducted pursuant to Civil Servic Law (“CSL”) § 205.5 (d). In the Judgment under appeal, the Appellate Division confirmed PERB’s determination that the Town violated CSL § 209-a.1 (d) by failing to satisfy its collective bargaining obligations with respondent-respondent Local 237, International Brotherhood of Teamsters (“Teamsters”) before terminating its established practice of permitting certain employees in two Teamsters represented bargaining units to use Town owned vehicles to commute to and from work. The Appellate Division rejected the Town’s argument that its 1968 Code of Ethics and Financial Disclosure Law defeated its bargaining obligations with Teamsters concerning the termination of the practice. The Appellate Division also ordered enforcement of PERB’s remedial order as authorized by CSL § 213 (a) (ii). This Court granted the Town’s motion for leave to appeal. -2- QUESTIONS PRESENTED 1. Does the Town’s 1968 Code of Ethics and Financial Disclosure Law affect its collective bargaining obligations with Teamsters concerning the termination of the Town’s long standing practice of permitting certain Teamsters represented employees to use Town owned vehicles to commute to and from work? The Appellate Division correctly held that it does not. 2. Was PERB’s remedial order a lawful exercise of its remedial powers under CSL § 205.5 (d) and properly enforced under CSL § 213 (a) (ii)? The Appellate Division correctly held that it was. STATEMENT OF THE CASE PERB is an executive agency of the State of New York, established to administer the Public Employees’ Fair Employment Ac(CSL, Article 14), known as the “Taylor Law.” The Taylor Law grants public employees the rights of organization and collective representation in order to ameliorate conditions that can lead to strikes and other interruptions in the orderly flow of government services. See CSL § 200; Board of Educ of the City Sch Dist of the City of Bu falo v Buffalo Tchrs Fedn, Inc, 89 NY2d 370, 377 (1996). It requires all public employers and employee organizations to negotiate in good faith in the -3- determination of represented employees’ terms and co itions of employment (CSL §§ 203, 204.2), which it broadly defines as “salaries, wages, hours and other terms and conditions of employment” (CSL § 201.4). It is an improper practice for a public employer to efuse to negotiate concerning mandatorily negotiable terms and conditions of employment. See, CSL § 209-a.1 (d); Matter of Board of Educ of City School Dist of City of New York v New York State Pub Empl Relations Bd, 75 NY2d 660 (1990). Therefore, a public employer violates CSL § 209-a.1 (d) by unilaterally terminating non-contractual past practices concerning represented employees’ mandatorily negotiable terms and conditions of employment. See, e.g., Chenango Forks Cent Sch Dist v New York State Pub Empl Relations Bd, 21 NY3d 255 (2013). At all relevant times, Teamsters represented two collective bargaining units of Town employees – a “white collar unit” and a “blue collar unit.”1 The most recent collective bargaining agreement for each unit expired on December 31, 2007. Record on Appeal (“R.”), 180-258. In 1968, soon after the Taylor Law’s September 1967 effective date, the Town enacted a local Code of Ethics and Financial Disclosure Law, which states, in relevant part (R. 321): 1 During this proceeding, respondent-respondent United Public Service Employees Union (“UPSEU”) was certified as the bargaining agent for b th collective bargaining units. For purposes of this brief, PERB refers to the bargaining obligation between the Town and Teamsters. -4- §14-12. Use of Town-owned equipment or property. No officer or employees shall request or permit the us 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. It also states (R. 332): § 14-28 Applicability Nothing contained in this local law shall limit any other applicable law or ordinance which are now or may hereafter be provided. In 1969, the Taylor Law was amended by adding CSL § 209-a, which, among other things, made it an improper practice for a public employer to refuse to negotiate concerning represented employees terms and conditions of employment (L. 1969, ch. 24, § 7). In 1990, the Town promulgated an Administrative Manu l that included a Vehicle Usage policy (R. 259). The manual states that employees who are “on call” 24 hours a day are eligible for a permanent assignment of a Town car upon approval by the Town Supervisor. It also states that other vehicles may be temporarily assigned by department heads “for official use” upon approval by the Town Supervisor. Finally, it states that necessary fueling, repairs and maintenance of the assigned vehicles are provided by the Town. Id. See also, R., 72-73, 94-96. -5- As established by the uncontroverted testimony of Ronald Devine, the Town’s assessor since 1999, vehicles were assigned to mployees on a “permanent” basis by their department heads for use d ring the workday to perform their official duties for the Town. R., 68-71. At the end of the work day, the employees were permitted to drive their assigned vehicle home and back to work the next work day, but for no other purpose. R. 71-72, 76-81. Upon such assignments, the department heads notified the Town’s payroll department (R., 76- 81; 264-269) so that the employees would be charged a f e ($3.00 per day/ $15.00 per week) for I.R.S. accounting purposes due to the limited use of the vehicles to commute to and from work. R. 74-75. See also, R., 150-151. After the vehicles were assigned, the Town required the employees to rep rt their mileage, distinguishing between mileage for Town business and for commuting purposes. R., 262-263. There is no evidence that the Town Supervisor everformally approved any of the assignments. Indeed, according to Devine, his authorization to assign vehicles under the practice was assumed from his predecessor in 1999. R., 84-85. Devine’s testimony regarding the Town’s practice was corroborated by that of Peter Kletchka, a Town employee since 1988 and currently its Public Works Supervisor, who was assigned a vehicle to perform Town duties that he was permitted to drive to and from work since 2000. R., 90-96. There is no evidence -6- that any department head or employee was ever criticized for adhering to the practice. At the outset of negotiations for successor collectiv bargaining agreements for both units in the fall of 2007, the Town proposed to bargain over the issue of employees being permitted to use Town vehicles to drive to and from work. R. 110-112, 304-305, 306-307. However, as negotiations progressed, the Town withdrew its proposal, believing that its intended modifications were not mandatorily negotiable. R., 129-135, 339-342. Although not shown in the record, in its brief to this Court the Town concedes that its newly elected Town Supervisor believed that the practice violated the Town’s 1968 Ethics and Financial Disclosure Law and its 1990 Administrative Manual. Town’s brief at p. 1. On April 29, 2008, the Town Board adopted a new Ton vehicle policy ordinance (R., 270-271) which limited permanent vehicl assignments to three classes of employees: elected officials, those who are required to be available 24/7 to respond to an “emergency crisis” within the Town and employees who work at multiple sites with no regular reporting station. Id See also, R., 122-123. Under the new policy, which was unilaterally implem nted in June 2008, employees who report to regular work stations and who must use a vehicle during the workday for Town business are permitted to use “pool” vehicles only, which they may not drive to and from work. R., 120-121. As a result, approximately 45 -7- employees represented by Teamsters were required to linquish their permanently assigned vehicles (R., 301, 333-334) – meaning that they could no longer use a Town vehicle for commuting purposes, including one employee who had held the privilege for as many as 20 years (R., 81-83). In response, Teamsters filed an improper practice harge with PERB, alleging, as relevant here, that the new policy constituted a unilateral change in negotiable terms and conditions of employment in violat on of CSL § 209-a.1 (d). R. 23. The Town filed an answer to the improper practice charge (R. 31), admitting that unit employees were no longer permitted o use Town vehicles to commute to and from work under the new policy, but denying that its conduct violated CSL § 209-a.1 (d). The Town alleged no affirmative defenses. A hearing was conducted by a PERB appointed administrative law judge (“ALJ”). By decision and order dated March 1, 2010, the ALJ concluded that the Town violated CSL § 209-a.1 (d) by failing to satisfy its collective bargaining obligations with Teamsters before terminating its established practice of permitting represented unit employees to use Town owned vehicles to commute between work and home, and she directed certain remedial mesur s. R. 343. The Town filed exceptions with the Board, challenging the ALJ’s determination. R. 361. -8- By decision and order dated May 27, 2011, the Board affirmed the ALJ. R. 379. It agreed that the Town’s practice of providing Town owned vehicles to represented employees for commuting purposes is a mandatorily negotiable economic benefit that may not be unilaterally discontinued, rejecting the Town’s argument that the vehicles are equipment about which t ere is no bargaining obligation. It also held that the Town’s 1968 ordinance and the 1990 administrative policy did not foreclose negotiations under the Taylor Law concerning the Town’s decision to discontinue its practice. The Board observed that while both indicate that the use of a Town owned vehicle was conditioned on approval from the Town’s Supervisor, there is no reco d evidence that such approval was ever applied as a condition to the use of a vehicle for commuting purposes. In that regard, the Board similarly reject d the Town’s argument that the April 2008 ordinance did not constitute a negotiable change, but merely “reaffirmed” the existing policy. Indeed, as a result of the April 2008 ordinance, approximately 45 represented employees had to relinquish the use of Town owned vehicles for commuting purposes, showing that the new policy changed and ended the practice. Finally, it rejected the Town’s argument that it should be permitted to unilaterally implement the new policy because of the fiscal savings it obtained. Therefore, the Board held that the Town violated CSL § 209-a.1 (d). -9- As authorized by CSL § 205.5 (d), the Board directed the Town to: “Forthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008; [and to] make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the vehicle assignment(s), if any, together with interest at the maximum legal rate.” R. 284-285. It also directed the Town to sign and post a notice reflecting the order at “all physical and electronic locations customarily used to post notices to unit employees.” Id. This proceeding ensued, and the matter was transferred to the Appellate Division, Second Department by Supreme Court, Suffolk County under CPLR 7804 (g). The Appellate Division confirmed PERB’s determination. R. 414. This court granted the Town’s motion for leave to appeal. R. 412. -10- ARGUMENT INTRODUCTION The applicable standard of review of an administrative determination made upon the record of a hearing is limited. See, e.g., Ridge Road Fire Dist v Schiano, 16 NY3d 494, 499 (2011). As recently reiterated by this Court in Chenango Forks Cent Sch Dist v New York State Pub Empl Relations Bd, 21 NY3d 255, 266 (2013) [citations and internal quotations omitted]: “As the agency charged with implementing the fundamental policies of the Taylor Law, [PERB] is presumed to have developed an expertise and judgment that requires us to accept its decisions with respect to matters within its competence. Our standard of review has been variously stated, but boils down to whether PERB's decision was legally permissible, rational ad thus not arbitrary and capricious. And where there has been a hearing, as happened here, PERB's determination must be supported by substantial evidence.” As relevant here, it is well settled that the use of mployer owned vehicles for commuting purposes is a mandatorily negotiable economic benefit. See, Matter of County of Nassau(Civil Serv Emps Assn), 13 PERB ¶ 3095 (1980), confd sub nom. County of Nassau v New York State Pub Empl Relations Bd, 14 PERB ¶7017 (Sup Ct Nassau County 1981), affd 87 AD2d 1006 (2d Dept 1982), app denied 57 NY2d 601 (1982); Matter of County of Onondaga (Civil Serv Emps Assn), 12 PERB ¶ 3035 (1979), confd sub nom. County of Onondaga v New York State Pub Empl Relations Bd, 77 AD2d 783 (4th Dept 1980). -11- It is equally settled that a public employer may not unilaterally terminate a non-contractual practice of providing a mandatorily negotiable benefit to represented employees where the “practice was unequivocal and was continued uninterrupted for a period of time under the circumstances to create a reasonable expectation among the affected unit employees that the [practice] would continue.” Chenango Forks Cent Sch Dist v New York State Pub Empl Relations Bd, 21 NY3d 255, 264 (2013); City of New York v New York State Pub Empl Relations Bd, 103 AD3d 145 (3d Dept 2012), lv denied 21 NY3d 855 (2013); Fashion Inst of Tech v New York State Pub Empl Relations Bd., 68 AD3d 605 (1st Dept 2009); Manhasset Union Free Sch Dist v New York State Pub Empl Relations Bd, 61 AD3d 1231, 1233 (3d Dept 2009). Operational or fiscal advantages obtained by such unilateral actions do not affect the employer’s duty to negotiate, but go to the merits of the parties’ positions in negotiations and the wisdom of any agreement reached. See e.g. Matter of City of Poughkeepsie v Newman, 95 AD2d 101 (3d Dept 1983), appeal dismissed 60 NY2d 859 (1983), lv denied 62 NY2d 602 (1984). Here, there is no dispute that the Town had an establi hed practice of permitting Teamsters represented employees to use Town owned vehicles to perform their official duties and to commute to and from work (but for no other personal purposes) upon assignment by their department heads. It is equally undisputed that the practice had openly continued uninterrupted for at least 17 -12- years. The practice was so well established that the Town kept records of the use of the vehicles for commuting purposes and it adjusted employees’ taxable wages in recognition of the tax consequences for the limited personal use of the vehicles. Indeed, the Town paid for the fuel and maintenance of the vehicles. Because the Town permitted, paid for and kept track of the practice for, minimally, 17 years, it cannot be said that it was unaware of its existence or in any way conditioned or prohibited it – at least until June 2008, when the Town unilaterally implemented the Town Board’s April 29, 2008 ordinance providing a new vehicle use policy, which unilaterally terminated the practice. Contrary to the Town’s arguments, PERB respectfully submits that PERB’s assessment of the negotiability of the at-issue past pr ctice and the effect that the Town’s 1968 local law and 1990 administrative manual had on its duty to negotiate were legally permissible, rational and supported by substantial evidence. PERB also respectfully submits that its remedial order was a lawful exercise of its remedial powers under CSL § 205.5 (d). Contrary to the Town’s arguments, PERB’s remedial order does not require it to repeal or disobey its 1968 ordinance. PERB’s remedial order requires the Town to apply the local law as it has done for at least 17 years. Therefore, as the Appellate Division correctly ordered, PERB’s remedial order was lawfully enforced under CSL § 213 (a) (ii). -13- POINT I THE TOWN’S 1968 CODE OF ETHICS AND FINANCIAL DISCLOSURE LAW DOES NOT AFFECT ITS COLLECTIVE BARGAINING OBLIGATIONS WITH TEAMSTERS CONCERNING THE TERMINATION OF THE TOWN’S LONG STANDING PRACTICE OF PERMITTING CERTAIN TEAMSTERS REPRESENTED EMPLOYEES TO USE TOWN OWNED VEHICLES TO COMMUTE TO AND FROM WORK A. The Town’s 1968 Code of Ethics and Financial Disclosure Law cannot defeat its bargaining obligations under the Taylor Law. In Matter of Doyle v City of Troy, 51 AD2d 845 (3d Dept 1976), citing City of Amsterdam v Helsby, 37 NY2d 19 (1975), the Appellate Division held that a local ordinance cannot defeat the full range of colle tive bargaining obligations imposed under the Taylor Law concerning mandatorily negotiable terms and conditions of employment—such a local law would be “unauthorized and prohibited.” Doyle, supra, at 845. Accord, City of New York v Council of City of New York, 9 NY3d 23, 31 (2007) (citing Doyle, the Court stated that “the Taylor Law prohibits local legislative bodies from usurping the executive’s prerogative to agree with unions on terms and conditions of employment”). See, also, Saratoga Springs Cent Sch Dist, 11 PERB ¶3037 (1978), confirmed sub nom Saratoga Springs Cent Sch Dist v New York State Pub Empl Relations Bd, 68 AD2d 202 (3d Dept 1979), lv denied 47 NY2d 711 (1979). -14- Indeed, in Board of Educ of City School Dist of City of New York v New York State Pub Empl Relations Bd, 75 NY2d 660 (1990), this Court held that the employer could not avoid its bargaining obligations u der the Taylor Law by relying on a pre-existing, but never implemented State law granting it the “power and duty” to impose certain financial disclosure requirements on represented employees. See, also, Board of Cooperative Educ Servs Sole Suprvisory Dist, Onondaga and Madison Counties v New York State Pub Empl Relations Bd, (3d Dept 1981) (never-implemented local regulation requiring employees to pay for employer required medical exams performed by their p rsonal physicians did not trump the employer’s bargaining obligation concerning the termination of its practice of reimbursing the employees for the exams). Here, it is not a State law that the Town relies on. It relies on its own local ordinance, which it never implemented as a bar to the establishment of the instant practice. Accordingly, the Town’s 1968 local ordinance cannot operate as a bar to negotiations concerning the termination of the at-issue mandatorily negotiable practice. See, City of Utica v Zumpano, 91 NY2d 964 (1998) (the Taylor Law trumps local rules regarding staffing requirements); Cohen v. Bd. of Appeals of Vill of Saddle Rock, 100 NY2d 395 (2003); Albany Area Builders Assn v Town of Guilderland, 74 NY2d 372, 376 (1989) (State laws override local zoning ordinances). -15- Thus, for example, under Doyle, the Town could not rely on its local ordinance to refuse to negotiate with Teamsters concerning a bargaining proposal to obtain the at-issue benefit. Here, Teamsters did not need to demand negotiations to obtain the benefit; it already had it under the long standing practice. It was, therefore, incumbent on the Town to satisfy its bargaining obligations to terminate the practice – which it failed to do. Likewise, the Town’s administrative manual has no effect on its duty to negotiate. See, e.g., Village of Catskill, 43 PERB ¶ 3001 (2010). The practice continued notwithstanding the provisions in the administrative manual. The Town’s reliance on Patrolmen’s Benevolent Assn of the City of New York, Inc. v New York State Pub Empl Relations Bd, 6 NY3d 563 (2006) (“NYCPBA”) and Town of Wallkill v New York State Pub Empl Relations Bd, 19 N.Y.3d 1066 (2012), is misplaced. In NYCPBA, this Court held that the State’s adoption of the New York City Charter and Administrative Code in the late 19th century reflected a State public policy favoring strict control over New York City police officers that was strong enough to overcome the public policy favoring the negotiability of police disciplinary procedures under the Taylor Law, enacted nearly a century later. In Wallkill, the Court held that Town Law § 155 reflected a similarly strong public policy that overcame the public policy favoring collective bargaining under the Taylor Law concerning disciplinary procedures for town -16- police officers. In each, the Court emphasized that the at-issue laws predated the disciplinary procedures specified in CSL § 75 and, therefore, that the authority granted in the City’s local laws and the Town Law were grandfathered under CSL § 76.4. Here, unlike NYCPBA and Wallkill, there is no expression of State policy reflected in the Town’s 1968 local law. And there is no conflicting public policy under the Taylor Law and any other State law concerning the negotiability of the use of Town owned vehicles to commute to and from work. Finally, the Town argues that its 1968 local law trumps the Taylor Law pursuant to CSL § 209-a.4 (i), which states: “[n]othing in this section shall be deemed to eliminate or diminish any right that may exist pursuant to any other law.” However, CSL§ 209.4 (i) was enacted in 1995 as part of the Taylor Law’s injunctive relief provisions, which authorize injunctions under the Taylor Law where appropriate to effectuate PERB’s remedial powers under CSL § 205.5 (d). It simply permits injunctions to be obtained in other contexts where available. It has no bearing on the Town’s bargaining obligations. It does not make the Town’s local law enforceable over the Taylor Law. B. By its terms, the Town’s 1968 local law does not defeat its bargaining obligations under the Taylor Law. Section 14-28 of the Town’s local law, entitled “Applicability,” states: “Nothing contained in this local law shall limit any other applicable law or -17- ordinance which are now or may hereafter be provided.” Therefore, the Town’s local law itself states that it does not override th Taylor Law, enacted in 1967, or its subsequent amendments, including CSL § 209-a.1 (d), enacted in 1969, which made it an improper practice for a public employer to refuse to negotiate in good faith with a recognized or certified employee organiz tion. Accordingly, the Town’s reliance on its local ordinance to defeat its collective bargaining obligations or to excuse its refusal to negotiate concerning the termination of the at-issue practice is unavailing. C. The Town’s 1968 Code of Ethics and Financial Disclosure Law, as interpreted and applied by the Town for at least 17 years, does not prohibit the establishment of the at-issue practice. During negotiations for successor agreements in the fall of 2007, the Town properly proposed to negotiate concerning its desire to terminate the at-issue practice. Then, in what appears to have been a flash of hindsight, the Town’s newly elected Supervisor decided that the practice violated the 1968 Code of Ethics and Financial Disclosure Law. Thus, according to the Town, the practice had been illegal and unethical since its inception. It declared its mea culpa to Teamsters and the affected employees by withdrawing its negotiations proposal and unilaterally terminating the minimally 17 year old practice. There is, however, absolutely no evidence that the Town ever before considered the practice to have violated its local law. To the contrary, the record fully establishes that it did not. -18- As already noted, the Town’s 1968 Code of Ethics and Financial Disclosure Law states (emphasis added): No officer or employee shall request or permit the use of town-owned vehicles, equipment, material or property for personal convenience or profit, except when . . . provided as municipal policy for the use of such officer or employee in the conduct of official business. The record shows that for at least 17 years while ts law was in place, the Town provided cars to certain Teamsters represented employees to perform their official duties, and it allowed them to drive the cars home at the end of the day and back to work the next work day to continue performing their official duties. The vehicles could be used for no other purpose. The Town did not provide the vehicles to the employees “for personal convenience or profit.” Indeed, the Town implemented a reporting system to monitor the employees’ use of the cars. It kept records of the assignments and accounted for the tax consequences for the limited use of the vehicles to commute to and from work. Therefore, the Appellate Division held (R. 417): The Town government was responsible for administering the Ethics Code and for managing its vehicle fleet. Y , as substantial evidence in the record establishes, t Town frequently and openly ignored that Code and its policy for managing its vehicle fleet, only to conte d 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 -19- than the Town itself gave to it. 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. PERB respectfully submits that the Town may not re-int rpret and apply its local law as it sees fit to defeat its bargaining obligations under the Taylor Law. Indeed, contrary to the Town’s arguments, the practice was not inconsistent with the local law, much less illegal or unethical as a matter of law. The many federal decisions on which the Town relies ar unavailing. To the extent they deal with private sector labor relations, CSL § 209-a.6, states: “In applying this section [CSL § 209-a], 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.” Moreover, in contrast to the local law at issue here, the laws and regulations at issue in the cited federal decisions unequivocally barred the establishment of the at-issue practices. In Jackson Purchase Rural Electric Cooperative Association v. Local, Union 816, International Brotherhood of Electrical Workers, 646 F.2d 264 (6th Cir. 1981), the private employer created a practice of deducting union dues without the employees’ consent in direct violation of a federal st tute. Likewise, in -20- Portsmouth Naval Shipyard Portsmouth, New Hampshire, 49 FLRA 1522 (1994), the employer’s practice of issuing permits to employees who did not have Commercial Drivers Licenses to operate motor vehicls was in violation of a federal statute and federal regulations. In United States Department of Justice v Federal Labor Relations Authority, 727 F2d 481 (5th Cir. 1984), there was a federal statute stating that “[t]he travel of [a government] employee shall be by the most expeditious means of transportation practicable and shall be commensurate with the nature nd purpose of the duties of the employee requiring such travel.” Id. at 489. The Fifth Circuit held that this language showed that the employer, the United States Immigration and Naturalization Service, was required to make case-by-case determination[s] . . . regarding the mode of transportation used by the employee, [and thus,] did not have the broad discretion necessary to establish a uniform or controlling ‘past practice’ of allowing agents . . . to use their [personal vehicles] in travelling to extended details outside the region.” Id. at 490. In Department of Interior, Bureau of Reclamation, 20 FLRA 587 (1985), the Federal Labor Relations Authority held that the department did not have to negotiate concerning the termination of a practice of crediting annual leave that was inconsistent with the regulation that granted the more limited benefit. Similarly, in Department of the Navy, Philadelphia Naval Shipyard, 18 FLRA 902 -21- (1985), the employer properly terminated a practice of paying cold weather differentials to employees engaged in snow removal because the regulation providing for the differential did not include snow removal as warranting such a differential. In both of those cases, the benefits derived from regulations which expressly limited their applicability. For any of those decisions to be relevant here, the Town’s local law would have had to unequivocally prohibit the grant of the benefit giving rise to the practice. However, as the Appellate Division correctly held, it cannot be said that the Town’s practice, as a matter of law, violated its 1968 Code of Ethics and Financial Disclosure Law, especially in light of the Town’s own interpretation and application of that law which permitted the practice for at least 17 years. POINT II PERB’S REMEDIAL ORDER WAS A LAWFUL EXERCISE OF ITS REMEDIAL POWERS UNDER CSL § 205.5 (d) AND PROPERLY ENFORCED UNDER CSL § 213 (a) (ii) Under CSL § 205.5 (d), PERB is authorized to issue a r medial order in an improper practice proceeding directing an offending party to cease and desist from engaging in the improper practice “and to take such affirmative action as will effectuate the policies of the [Taylor Law] . . , including, but not limited to the -22- reinstatement of employees with or without back pay. . . .” Such orders are enforceable by judicial order pursuant to CSL § 213(a) (ii). ). See, e.g., New York State Pub Empl Relations Bd v Board of Educ of Cityof Buffalo, 39 NY2d 86 (1976); City of New York v New York State Pub Empl Relations Bd, 85 AD3d 1439 (3d Dept 2012), leave denied 21 NY3d 855 (2013); County of Monroe v New York State Pub Empl Relations Bd, 85 AD3d 1439 (3d Dept 2011); New York State Pub Empl Relations Bd v County of Westchester, 280 AD2d 849 (3d Dept 2001). Because “[t]he remedies for improper employer practices are peculiarly matters within [PERB’s] administrative competence” (Matter of City of Albany v Helsby, 29 NY2d 433, 439 [1972]), courts have considered only whether such orders are a proper exercise of PERB’s remedial authority (see Matter of City of Albany v Helsby, 56 AD2d 976 [3d Dept 1977]). Therefore, courts have deferred to PERB’s determinations as to what actions should be taken by an offending party to effectuate the policies of the Taylor Law. See e.g. Matter of City of Poughkeepsie v Newman, 95 AD2d 101 (3d Dept 1983), appeal dismissed 60 NY2d 859 (1983), lv denied 62 NY2d 602 (1984). Here, PERB ordered the Town to: “Forthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008; [and to] make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the vehicle -23- assignment(s), if any, together with interest at the maximum legal rate.” R., 284- 285. It also directed the Town to sign and post a notice reflecting the order at “all physical and electronic locations customarily used to post notices to unit employees.” Id. Contrary to the Town’s argument, PERB’s order does not “act to amend and/or repeal the provision of the Town’s Ethics Code relating to the use of Town- owned vehicles for personal use . . . .” Town’s brief, p. 17. The Town’s law remains if full force and effect. PERB’s order requires the Town to apply its local law as it has for nearly two decades as it affects the at-issue represented employees. Moreover, the implementation of the newordinance constitutes the at- issue violation. As argued in Point I (a), the new ordinance cannot override the Town’s duty to negotiate under the Taylor Law. Finally, the Town argues that PERB’s remedial order violates the Municipal Home Rule Law, relying on City of Mount Vernon v Cuevas, 33 PERB ¶ 7015 (Sup Ct Albany County 2000), affd 289 AD2d 674 (3d Dept 2001), lv denied 97 NY2d 613 (2002). See, Town’s brief, p.18. However, neither Supreme Court nor the Appellate Division referred to the Municipal Home Rule Law. The Town cites to a specific paragraph of the Supreme Court’s decision in which the Court found that PERB’s decision compelling the City to negotiate “was irrational, unreasonable and legally impermissible because it would lead to the repeal or modification of the -24- City’s Charter . . . .” What the Town fails to point out is that this holding was based on the fact that the City’s Charter, as adopted by the State legislature, was specifically protected from repeal and modification under CSL § 76.4. In no way does this holding illustrate proper application of the Municipal Home Rule law. At best, it illustrates proper application of CSL § 76.4. PERB respectfully submits that its order falls well within its broad remedial powers under CSL § 205.5 (d). CONCLUSION The Court should affirm, in all respects, the March 13, 2013 Decision and Judgment of the Appellate Division, Second Department. Respectfully submitted, DAVID P. QUINN Attorney for Respondent NYS Public Employment Relations Board Office and P. O. Address 80 Wolf Road - Fifth Floor – Room 500 Albany, New York 12205-2656 Telephone: (518) 457-2678 Fax: (518) 457-2664 _________________________________ DAVID P. QUINN October 11, 2013