55 A.D.2d 230 | N.Y. App. Div. | 1976
On May 3, 1974 the Service Employees Inter-
national Union, AFL-CIO (SEIU) filed a representation petition seeking decertification of the Sullivan County Chapter of the Civil Service Employees Association (CSEA) as the exclusive negotiating representative of a unit of county employees. On May 8, 1974 New York Council 66, American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) filed similar petitions seeking decertification of CSEA as exclusive representative of a unit of blue collar employees and a unit of foremen. Prior to May, 1974 CSEA had been the sole bargaining agent for all 486 county employees, 186 of whom are employed in the Department of Public Works (DPW).
After a hearing before the director of representation the county, which had originally supported the continuance of CSEA as the sole county employee representative, changed its position and joined SEIU and AFSCME in seeking three separate units of representation. The director determined that there should be two units, all regular full and part-time employees in one unit and all supervisory DPW employees in the second. SEIU and AFSCME filed exceptions to the director’s determination and, thereafter, PERB modified the director’s decision and mandated the creation of three units consisting of: (1) employees of the DPW; except (2) supervisory DPW employees; and (3) all other county employees. This appeal by CSEA ensued.
A threshold issue of whether PERB had jurisdiction to hear
While rules of administrative agencies which regulate procedure affecting substantial rights of individuals may not be waived (Matter of Lake Placid Club v Abrams, 6 AD2d 469, affd 6 NY2d 857) where, as here, no substantial right insulating any party against prejudice was violated, the rule requiring written notice indicating the position of all parties is amenable to relaxation. PERB’s letter to all parties dated September 25, 1974 gave then adequate notice and no prejudice to CSEA was involved.
With respect to PERB’s decision to direct the creation of three bargaining units, it must be noted that the function of the court is not to determine de novo the best or most likely or most advantageous bargaining unit, but is restricted to a finding of whether PERB’s decision is supported by substantial evidence (Matter of Local 342, Long Is. Pub. Serv. Employees, United Mar. Div., Nat. Mar. Union, AFL-CIO v Helsby, 53 AD2d 805; Matter of Wakshull v Helsby, 35 AD2d 183; Matter of Civil Serv. Employees Assn. v Helsby, 32 AD2d 131, affd 25 NY2d 842) or is arbitrary or capricious (Matter of Long Is. Coll. Hosp. v New York State Labor Relations Bd., 32 NY2d 314, 321, cert den 415 US 957). The courts recognize PERB’s expertise in this complicated area and consider the scope of review to be narrow.
Contrary to CSEA’s contention, PERB did not fragmentize an existing single unit previously certified. Rather, it established three units from one which previously had been voluntarily agreed to between the public employer and CSEA. PERB, then, was faced with an original dispute concerning which bargaining representatives, and how many, should rep
The determination should be confirmed, and the petition dismissed, without costs.
Greenblott, J. P., Kane, Main and Larkin, JJ., concur.
Determination confirmed, and petition dismissed, without costs.