June 7, 2013
BUFFALO UNITED CHARTER SCHOOL, BROOKLYN EXCELSIOR CHARTER SCHOOL AND NATIONAL HERITAGE ACADEMIES, INC., PETITIONERS-APPELLANTS-RESPONDENTS,
NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, COUNCIL OF SCHOOL SUPERVISORS AND ADMINISTRATORS, LOCAL 1, AFSA, RESPONDENTS-RESPONDENTS-APPELLANTS, AND BUFFALO UNITED CHARTER SCHOOL EDUCATION ASSOCIATION, NYSUT/AFT, AFL-CIO NEW YORK, RESPONDENT-RESPONDENT.
Appeal and cross appeals from a judgment (denominated order and judgment) of the Supreme Court, Erie County (John M. Curran, J.), entered July 11, 2012 in a proceeding pursuant to CPLR article 78.
HISCOCK & BARCLAY, LLP, BUFFALO (LAURENCE B. OPPENHEIMER OF COUNSEL), AND WHITEMAN OSTERMAN & HANNA LLP, ALBANY, FOR PETITIONERS-APPELLANTS-RESPONDENTS.
DAVID P. QUINN, ALBANY, FOR RESPONDENT-RESPONDENT-APPELLANT NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD.
DAVID N. GRANDWETTER, NEW YORK CITY, FOR RESPONDENT-RESPONDENT-APPELLANT COUNCIL OF SCHOOL SUPERVISORS AND ADMINISTRATORS, LOCAL 1, AFSA.
RICHARD E. CASAGRANDE, LATHAM (JENNIFER N. COFFEY OF COUNSEL), FOR RESPONDENT-RESPONDENT.
DAVID J. STROM, GENERAL COUNSEL, WASHINGTON, D.C., OF THE WASHINGTON, D.C. BAR, ADMITTED PRO HAC VICE, FOR AMERICAN FEDERATION OF TEACHERS, AFL-CIO, AND PHILIP A. HOSTAK, FOR NATIONAL EDUCATION ASSOCIATION, AMICI CURIAE.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.
It is hereby ORDERED that the case is held and the decision is reserved in accordance with the following Memorandum: In this proceeding pursuant to CPLR article 78, petitioners appeal, and respondents New York State Public Employment Relations Board (PERB) and Council of School Supervisors and Administrators, Local 1, AFSA, cross-appeal from a judgment determining, inter alia, that PERB properly exercised jurisdiction over two collective bargaining matters. We agree with petitioners, however, that Supreme Court erred in determining that PERB properly exercised jurisdiction over those matters. Inasmuch as the two collective bargaining matters "arguably" fall within the scope of the National Labor Relations Act (NLRA) (San Diego Bldg. Trades Council, Millmen's Local 2020 v Garmon, 359 U.S. 236, 245; see e.g. Chicago Mathematics & Science Academy Charter School, Inc., 359 NLRB 41; Charter School Admin. Servs., 353 NLRB 394), the National Labor Relations Board (NLRB) has primary jurisdiction "to determine in the first instance" whether its jurisdiction preempts PERB's jurisdiction (Metropolitan Life Ins. Co. v Massachusetts, 471 U.S. 724, 748). Under the circumstances of this case, and in the interest of judicial economy, we hold the case pending a determination of the NLRB whether the NLRA applies to the collective bargaining matters herein at issue and thus preempts PERB's jurisdiction (see generally New York Inst. for Educ. of Blind v United Fedn. of Teachers' Comm. for N.Y. Inst. for Educ. of Blind, 83 A.D.2d 390, 397-398, affd 57 N.Y.2d 982).