In the Matter of ALBANY POLICE OFFICERS UNION, LOCAL 2841, LAW ENFORCEMENT OFFICERS
NEW YORK PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents. UNION DISTRICT COUNCIL 82, AFSCME, AFL-CIO, Petitioner,
Calendar Date: February 14, 2017
Scheuermann & Scheuermann, LLP, Albany (Arthur P.
Scheuermann of counsel), for petitioner.
York Public Employment Relations Board, Albany (David Quinn
of counsel), for New York Public Employment Relations Board,
Wallens Gold & Mineaux, LLP, Albany (Mary M. Roach of
counsel), for City of Albany, respondent.
Before: Garry, J.P., Egan Jr., Rose, Devine and Aarons, JJ.
MEMORANDUM AND JUDGMENT
pursuant to CPLR article 78 (transferred to this Court by
order of the Supreme Court, entered in Albany County) to
review a determination of respondent Public Employment
Relations Board finding that respondent City of Albany did
not commit an improper employer practice in violation of
Civil Service Law § 209-a.
active members include police officers and employees working
for respondent City of Albany. Since the late 1980s, the City
consistently reimbursed petitioner's active members for
their Medicare Part B monthly premiums upon their retirement.
In October 2008, the City sent a notice to all retirees of
various changes to the City's offered health plans. With
regard to Medicare Part B reimbursements, this October 2008
notice advised the retirees that "[u]nder the City's
current policy, the City will reimburse you the Medicare Part
B premium on a monthly basis." A separate notice of the
same date was distributed to the active members similarly
advising them of various changes to the offered health plans
but did not mention anything about Medicare Part B
reimbursements. In October 2009, the City sent a notice to
all retirees advising them again of changes to the offered
health plans. This notice further stated that, as of December
31, 2009, the City would no longer reimburse Medicare Part B
premiums whose effective date for Part B was January 1, 2010.
An October 2009 notice was sent to all active members that
also advised them of changes to the offered health plans but,
once again, omitted any reference to Medicare Part B premium
result of the change, petitioner filed an improper practice
charge with respondent Public Employment Relations Board
(hereinafter PERB) alleging that the City violated Civil
Service Law § 209-a (1) (d) by, among other things,
unilaterally discontinuing the practice of reimbursing
Medicare Part B monthly premiums to retirees. After a
hearing, an Administrative Law Judge (hereinafter ALJ)
dismissed the charge on the basis that no violation of the
Civil Service Law occurred because "retirees are not
covered by the [Public Employees' Fair Employment Act]
and the City has made no announcement to current bargaining
unit members of its intention to cease... and/or terminate
certain Medicare Part B premium reimbursements." Upon
administrative appeal, PERB upheld the ALJ's
determination, albeit on different grounds, by concluding
that petitioner failed to carry its burden of establishing
the existence of past practice. PERB explained in its
decision and order that the October 2008 notices
"eliminated or altered various plans and benefits"
and, therefore, interrupted any past practice of
reimbursement of Medicare Part B monthly premiums. PERB also
found that the phrase, "under the City's current
policy, " as provided in the October 2008 notice to
retirees, "served to provide notice that such policy [of
reimbursing Medicare Part B premiums] could not be relied
upon to continue indefinitely." Petitioner commenced
this CPLR article 78 proceeding seeking to annul PERB's
determination. The matter was thereafter transferred to this
initial matter, contrary to petitioner's assertion, PERB
did not exceed its jurisdiction of review by affirming the
ALJ's decision on different grounds inasmuch as the issue
of whether the City had an enforceable past practice was
raised and developed at the formal hearing (see Matter of
New York City Tr. Auth. v New York State Pub. Empl. Relations
Bd., 78 A.D.3d 1184, 1186-1187 , affd 19
N.Y.3d 876 ; see generally Matter of Civil Serv.
Empls. Assn. v Public Empl. Relations Bd., 73 N.Y.2d
796, 798 ).
to the merits, whether the reimbursement of Medicare Part B
premiums was a past practice depends on whether such
"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" (Matter
of Manhasset Union Free School Dist. v New York State Pub.
Empl. Relations Bd., 61 A.D.3d 1231, 1233 
[internal quotation marks, brackets and citations omitted];
see generally Matter of Unatego Non-Teaching Assn. v New
York State Pub. Empl. Relations Bd., 134 A.D.2d 62, 64
, lv denied 71 N.Y.2d 805');">71 N.Y.2d 805 ). "[T]he
expectation of the continuation of the practice is something
that may be presumed from its duration with consideration of
the specific circumstances under which the practice has
existed" (Matter of Town of Islip v New York State
Pub. Empl. Relations Bd., 23 N.Y.3d 482, 492 
[internal quotation marks and citation omitted]).
review PERB's determination rendered after a hearing by
examining whether such determination is supported by
substantial evidence (see Matter of Chenango Forks Cent.
Sch. Dist. v New York State Pub. Empl. Relations Bd., 21
N.Y.3d 255, 265 ; Matter of City of New York v New
York State Pub. Empl. Relations Bd., 103 A.D.3d 145,
148-149 , lv denied 21 N.Y.3d 855');">21 N.Y.3d 855 ;
Matter of Sliker v New York State Pub. Empl. Relations
Bd., 42 A.D.3d 653, 653 ; see generally
CPLR 7803 ). "A reviewing court in passing upon this
question of law may not substitute its own judgment of the
evidence for that of the administrative agency, but should
review the whole record to determine whether there exists a
rational basis to support the findings upon which the
agency's determination is predicated" (Matter of
Purdy v Kreisberg, 47 N.Y.2d 354, 358  [citations
omitted]; see Matter of Romaine v Cuevas, 305 A.D.2d
968, 969 ).
review of the whole record, we conclude that a rational basis
does not exist to support PERB's determination. The City
has been reimbursing the retirees for their Medicare Part B
monthly premiums for over 20 years. At the hearing, several
witnesses testified as to their understanding and expectation
that the City would reimburse them for their Medicare Part B
monthly premiums upon their retirement and that such
reimbursements would continue for the rest of their life
(see Matter of Chenango Forks Cent. Sch. Dist. v New York
State Pub. Empl. Relations Bd., 21 N.Y.3d at 267;
Matter of Fashion Inst. of Tech. v New York State Pub.
Empl. Relations Bd., 68 A.D.3d 605, 605 ). In
addition, one witness testified that during negotiations with
the City, the topic of reimbursement for Medicare Part B
monthly premiums was raised but the City felt it was
unnecessary to formalize such benefit into the collective
bargaining agreement because everyone knew that it would last
"forever." Notably, neither PERB nor the City
disputes the fact that the City had reimbursed retirees for
their Medicare Part B premiums upon their retirement.
nonetheless determined that a past practice of reimbursements
did not exist based on the documentary evidence, i.e., the
separate October 2008 notices sent to retirees and active
members. We conclude that such documentary evidence does not
provide "a rational basis to support the findings upon
which [PERB's] determination is predicated"
(Matter of Purdy v Kreisberg, 47 N.Y.2d at 358). In
this regard, although the October 2008 notice that was sent
specifically to active members advised them of various
changes to the health plans offered by the City, it was
entirely silent as to the reimbursement of Medicare Part B
premiums. Furthermore, contrary to PERB's finding, the
other October 2008 notice and the language therein -
specifically, "under the City's current policy"
- could not have apprised petitioner's active members
that the reimbursement of Medicare Part B monthly premiums
would not continue indefinitely because this notice was only
to retirees, who petitioner does not represent. For this
reason, PERB's conclusion that petitioner never objected
to the City's proposed modifications of Medicare Part B
reimbursements lacks evidentiary support inasmuch as
petitioner's active members did not have notice of any
potential changes to which an objection could be lodged.
Finally, even if petitioner or its active members had
received adequate notification, we find that the five words -
"under the City's current policy" - do not
constitute substantial evidence connoting either the absence
of a past practice of reimbursing Medicare Part B monthly
premiums by ...