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MATTER CIVIL SERVICE EMPLOYEES ASSOCIATION v. ROBERT D. HELSBY ET AL. (03/10/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1969.NY.40780 <http://www.versuslaw.com>; 297 N.Y.S.2d 813; 31 A.D.2d 325 March 10, 1969 IN THE MATTER OF THE CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., APPELLANT,v.ROBERT D. HELSBY ET AL., CONSTITUTING THE PUBLIC EMPLOYMENT RELATIONS BOARD, RESPONDENTS Matter of Civil Serv. Employees Assn. v. Helsby, 58 Misc. 2d 745, reversed. De Graff, Foy, Conway & Holt-Harris (John T. DeGraff of counsel), for appellant. Jerome Lefkowitz, Martin L. Barr, Jerome Thier and Robert J. Miller for Public Employment Relations Board, respondent. Melvin H. Osterman, Jr., for State of New York. Julius Topol for Council 50, AFSCME. Corcoran & Brady for Local 30-D, Operating Engineers. Louis S. Zappulia for Safety Officers' Benevolent Assn. Arthur J. Harvey for Capital PBA & Niagara State Park PBA. Alan S. Lipman for NYS Correction Officers Assn., Inc. Vladeck, Elias, Frankle, Vladeck & Lewis for Lodge 2016, IAM. Robert H. Jones, III for NYS Nurses Association & American Physical Therapists Association. John R. Harold for Teamsters Local 456 & BSEIU Local 223. Arnold Malech for Association of NYS Civil Service Attorneys, Inc. Staley, Jr., J. Gibson, P. J., Herlihy, Reynolds and Cooke, JJ., concur. Author: Staley


Matter of Civil Serv. Employees Assn. v. Helsby, 58 Misc. 2d 745, reversed.

Staley, Jr., J. Gibson, P. J., Herlihy, Reynolds and Cooke, JJ., concur.

Author: Staley

 This is an appeal from a judgment of the Supreme Court at Special Term, entered in Albany County on January 9, 1969, which dismissed a petition in a proceeding under article 78 of the CPLR to review a determination of the Public Employment Relations Board in a representation status dispute, and denied an application to vacate an order issued by such board temporarily restraining the State Negotiating Committee from continuing negotiations with the Civil Service Employees Association pending final certification of representation status. Following the enactment of the Public Employees' Fair Employment Act (Civil Service Law, art. 14; L. 1967, ch. 392, also known as the Taylor Law), the State Negotiating Committee determined that it would negotiate collectively with three units of State employees and recognized the Civil Service Employees Association to negotiate on behalf of employees of one such unit commonly called the general unit. Employee organizations opposed to the association filed petitions with the Public Employment Relations Board contesting both the establishment of the general unit and the recognition of the association. The board issued an order on November 30, 1967 restraining exclusive negotiations between the State Negotiating Committee and the association until the representation status dispute initiated by the filing of such petitions was resolved, which order was vacated in a prior proceeding in which the statute was construed as "conferring of power on the public employer to recognize and negotiate with employee organizations, untrammeled by representation dispute proceedings until they have been resolved by the Board through certifications of appropriate bargaining units and employee organizations." (Matter of Civil Serv. Employees Assn. v. Helsby, 21 N.Y.2d 541, 548.)

Following extensive hearings upon the petitions filed by the employee organizations opposed to the association, the board, on November 27, 1968, handed down its decision which rejected the general unit designated by the State Negotiating Committee and found five separate units to be appropriate. The question of which job titles should be included in each unit and the ascertainment of the employees' choice of employee organizations as their representatives were reserved pending further proceedings before the board. The association promptly commenced the present proceeding to review such determination by petition and order to show cause issued November 27, 1968. Before service of the petition and order to show cause was effected, the board issued an order, also dated November 27, 1968, in which it ordered the State Negotiating Committee and the association to refrain from conducting further negotiations until the representation status dispute was resolved through certifications of employee organizations for employees in each of the five units.

Respondents moved to dismiss the petition upon the ground that the determination sought to be reviewed is not final within the meaning of subdivision 1 of CPLR 7801, which motion was granted. Special Term also denied the association's application, apparently made upon the argument of the motion to dismiss its petition, for judgment vacating the order restraining negotiations between the State Negotiating Committee and the association.

The first issue raised on this appeal is whether the board's determination is subject to judicial review under article 78 of the CPLR. CPLR 7801 provides that article 78 "shall not be used to challenge a determination which is not final or can be adequately reviewed by appeal to a court or some other body or officer". It is this exception upon which the board relies to defer judicial review.

The board in its decision concluded that in a representative proceeding it was empowered to devise a unit that it deemed most appropriate, although such a unit was not specifically sought by any of the parties. It further held that the general unit designated by the employer was not appropriate and approved five separate units as appropriate. The board contends that its determination is not final and, therefore, the association is not, at this time, free to question the appropriateness of the units it has devised.

The pertinent provisions of the Taylor Law to the issues involved on this appeal read as follows:

"§ 205. Public employment relations board. * * * 5. In addition to the powers and functions provided in other sections of this article, the board shall have the following powers and functions * * * (f) To conduct studies of problems involved in representation and negotiation, including, but not limited to * * * (ii) the problems of unit determination * * *.

"§ 207. Determination of representation status. For purposes of resolving disputes concerning representation status, pursuant to section two hundred five or two hundred six of this article, the board or government, as the case may be, shall

"1. define the appropriate employer-employee negotiating units taking into account the following standards:

"(a) the definition of the unit shall correspond to a community of interest among the employees to be included in the unit;

"(b) the officials of government at the level of the unit shall have the power to agree, or to make effective recommendations to other administrative authority or the legislative body with respect to, the terms and conditions of employment upon which the employees desire to negotiate; and

"(c) the unit shall be compatible with the joint responsibilities of the public employer and public employees to serve the public." It should be noted that subdivision 1 of section 207 of the Civil Service Law provides for the determination of the negotiating unit, while subdivisions 2 and 3 ...


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