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In re City of New York

Supreme Court of New York, Third Department

December 27, 2012

In the Matter of CITY OF NEW YORK et al., Appellants,
v.
NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.

Calendar Date: November 14, 2012

Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth S. Natrella of counsel), for appellants.

David P. Quinn, New York State Public Employment Relations Board, Albany, for New York State Public Employment Relations Board, respondent.

Spivak Lipton, LLP, New York City (Neil D. Lipton of counsel), for Local 891, International Union of Operating Engineers, AFL-CIO, respondent.

Before: Rose, J.P., Lahtinen, Spain, Kavanagh and McCarthy, JJ.

McCarthy, J.

Appeals (1) from a judgment of the Supreme Court (Zwack, J.), entered September 23, 2011 in Albany County, which, among other things, dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Public Employment Relations Board finding that petitioner Board of Education of the City School District of the City of New York committed an improper employer practice, and (2) from an order of said court, entered December 8, 2011 in Albany County, which denied petitioners' motion for reconsideration.

In 2008, in an effort to reduce traffic congestion, pollution and abuse of parking permits and to encourage the use of public transportation, petitioner City of New York enacted a city-wide plan to reduce the number of parking permits issued to municipal employees for parking on city streets. Prior to enactment of this plan, all employees of the Department of Education of the City of New York (hereinafter DOE), including custodian engineers employed by petitioner Board of Education of the City School District of the City of New York (hereinafter the Board), would apply for parking permits through DOE. The applications were routinely granted. In the 2007-2008 school year, DOE produced more than 63, 000 parking permit placards that it issued to DOE employees. Those DOE placards could be used for any of the 10, 007 on-street parking spaces marked with signs by the Department of Transportation of the City of New York (hereinafter DOT) exclusively for DOE employees, or any of the 15, 060 off-street parking spaces located on DOE property. Possession of a placard did not guarantee a parking space, but permitted a person to park in a space if one could be found. Not every school building had both on-street and off-street parking, and approximately 280 buildings had no parking at all.

After the plan was enacted, DOT was responsible for issuing all parking permits for on-street parking city-wide [1]. The former DOE placards would no longer be considered valid for parking on city streets. In the fall of 2008, DOT provided DOE with 10, 007 placards, one for each parking space on city streets that was marked with a sign for DOE employee use. The new parking permits are also site-specific, so they can only be used for parking spaces in proximity to a specific school building, rather than city-wide. DOT also issued DOE approximately 1, 000 three-hour parking placards that could be used for on-street parking associated with agency business anywhere in the City. Under the new rules, most of the custodian engineers who applied to DOE for parking permits were denied.

Respondent Local 891, International Union of Operating Engineers, AFL-CIO (hereinafter Local 891), the union representing custodian engineers employed by the Board, [2] filed an improper practice charge with respondent Public Employment Relations Board (hereinafter PERB) alleging that the Board unilaterally changed a condition of employment by eliminating the automatic grant of parking permits (see Civil Service Law § 209-a [1] [d]). Following a hearing, an Administrative Law Judge (hereinafter ALJ) determined that free parking was a term and condition of employment that was a mandatory subject of bargaining and could not be unilaterally altered. The ALJ found that the Board committed an improper practice and ordered it to post a notice, restore to Local 891 members the practice of granting parking permits upon request and make members whole for wages or benefits lost as a result of the improper practice. The Board appealed and PERB affirmed the ALJ's decision. Petitioners commenced this proceeding seeking to annul PERB's decision. PERB counterclaimed seeking enforcement of its remedial order. Supreme Court dismissed the petition and granted PERB's counterclaim. The court later denied petitioners' request for reconsideration. Petitioners appeal.

Supreme Court properly determined that the City did not have standing to bring this proceeding. Civil Service Law § 213 (a) permits review of PERB orders "by an aggrieved party." Petitioners concede that the City and the Board are separate legal entities (see Perez v City of New York, 41 A.D.3d 378, 379 [2007], lv denied 10 N.Y.3d 708 [2008]). The City was not a party to the PERB proceeding. Respondents contend that the City could have intervened, but the regulation only permits intervention by public employees, a union acting on their behalf or a public employer (see 4 NYCRR 212.1 [a]). It is unclear whether the City could have intervened under that regulation because, despite being a public employer in general, it was not the employer of the employees who filed the grievance at issue (see Education Law § 2590-g [2]). Regardless of whether the City could have been a party in the administrative proceeding, it was not "an aggrieved party" because PERB's order did not make any findings against the City or order it to do anything [3]. Thus, the City did not have standing to commence a proceeding seeking to annul PERB's decision and Supreme Court properly dismissed the portion of the petition brought by the City.

In reviewing a PERB determination, courts assess whether it is supported by substantial evidence, which depends on whether there is a rational basis in the record to support the underlying findings (see Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 A.D.3d 1231, 1233-1234 [2009]; Matter of Romaine v Cuevas, 305 A.D.2d 968, 969 [2003]). We accord PERB "deference in matters falling within its area of expertise, including the resolution of improper practice charges" and will not "disturb its determination unless irrational" (Matter of Poughkeepsie Professional Firefighters' Assn., Local 596, IAFF, AFL-CIO-CLC v New York State Pub. Empl. Relations Bd., 6 N.Y.3d 514, 522 [2006]). An order devised by PERB to remedy an improper practice should be upheld it if can be reasonably applied (see Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 A.D.3d at 1235).

It is undisputed that free parking is a term and condition of employment and the proof established that DOE provided parking permits to Local 891's members upon request for more than 30 years, creating a past practice that must be continued unless altered through the collective bargaining process. It is also undisputed that the Board stopped issuing parking permits to custodian engineers upon their request, and changed the method of distributing parking permits without negotiating with Local 891. The Board argues that this was not an improper practice, however, because the Board contends that it had no control over this change that was imposed upon it by the City, and therefore had no power to negotiate anything regarding this parking permit situation. The power to regulate traffic and parking on city streets is expressly delegated to the City (see NY Const, art IX, § 2 [a], [c] [6]; Vehicle and Traffic Law §§ 1640 [a] [6]; 1642 [a] [2]; Municipal Home Rule Law § 10 [1] [ii] [a] [6]; Matter of Council of School Supervisors & Adm'rs, Local 1, Am. Fedn. of School Adm'rs, AFL-CIO v New York City Dept. of Educ., 87 A.D.3d 883, 885 [2011], lv denied 19 N.Y.3d 803 [2012]). The relevant questions for us to address are whether the Board had any control over the change in producing and distributing parking permits and whether PERB intruded on an area under the authority of the City or its DOT.

We agree with PERB that the Board did have control over some aspects of the new parking permit situation. DOT produced and provided to DOE 10, 007 site-specific placards and 1, 000 three-hour permits for on-street parking. According to the record, including testimony from the Board's own witness, DOE had control over those placards once they were issued to it by DOT. DOT had no control over, and did not dictate any conditions for, how those placards would be distributed by DOE. DOE could have distributed, from the 10, 007 on-street placards it received from DOT, a site-specific placard to any custodian engineer who worked at a building with identified on-street parking. DOT had no authority over, and DOE had complete control over, the 15, 060 off-street parking spaces located on DOE's own property. DOE could have produced more off-street parking permits than it had off-street spaces and distributed the permits to any staff members, including custodian engineers, with no guarantee of a parking space [4]. This would have continued the prior practice, at least as far as off-street parking spaces are concerned. While this may not have supported the plan of the City's Mayor and its goals of reducing pollution, congestion and permit abuse and encouraging use of public transportation, DOE is a separate legal entity from the City and is not directly obligated to further the Mayor's initiatives (but see Matter of Council of School Supervisors & Adm'rs, Local 1, Am. Fedn. of School Adm'rs, AFL-CIO v New York ...


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