City of Watertown v. State of New York Public Employment Relations Board

Bellacosa, J.

(concurring). While I agree fully with the cogent opinion of the Chief Judge for the Court, I consider it necessary to add a brief explanation of my vote and reason for taking separate issue with the dissenting opinion. I am concerned about the breadth of the dissent’s interpretation of this Court’s precedential developments affecting this area of the law, and its implication — an inference I derive from some of its articulation — relative to arbitration as a method of dispute resolution.

Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd. (85 NY2d 480) is manifestly central to this case and pivotal to the differing views of the members of the Court. I was and remain acutely aware of the precise limitations of the holding and practical implications of that case, especially to the extent that I took issue in my dissenting opinion there (id., at 487-492). The interpretive sweep and values expressed in the dissenting opinion today, as to the scope and meaning of the Schenectady rationale, would likely have evoked more expansive explication in both those opinions, had this extended application been contemplated.

Thus, I gauge a need to underscore the narrower range and interpretive quality that I ascribe to Schenectady and related precedents than the dissenting opinion is willing to accept. On this point, I am persuaded that the opinion of the Chief Judge for the Court, which I join, introduces no departure from settled law, from the careful holdings of the Court’s prior cases, nor from the sense of calibrated allocation of the power distribution equations among various municipal labor-management transactors.

Rather, the extra leverage beyond this Court’s carefully limned precedents is, ironically, reflected in the dissenting *86opinion’s expression of the jurisprudence and governing standards. Its proffered point of view seems to rest significantly on differing policy impressions, extrapolated out of its sense of practical operational consequences from the precedential and statutory sources. I believe that the precedents and statutes ought to regulate explicitly in this contentious legal arena.

The dissenting opinion, moreover, casts something of a cloud over the legitimacy of the arbitration method for resolving disputes of this kind, despite the disclaimers. Legislative enactments, to be sure, offer some balanced protections to municipalities in this area and they are coupled with this Court’s careful and limited approbation of those nuanced mandates as reflected in the Schenectady (supra) and DePoalo (Matter of DePoalo v County of Schenectady, 85 NY2d 527) decisions. However, I do not think it prudent or called for in this case to suggest doubt as to the practical efficacy of the arbitration forum or mode of dispute resolution, as such. The “mandate” pertains to the collective bargaining process, not, as referred to in the dissent, to the arbitration clause and remedy that may emerge as part of a voluntarily negotiated agreement among the parties. Finally, the very real leadership role of this Court, with respect to arbitration as a valuable method of dispute resolution, should not be doubted or diminished even by implication (see, e.g., Marchant v Mead-Morrison Mfg. Co., 252 NY 284; Matter of Weinrott [Carp], 32 NY2d 190; see also, Mount St. Mary’s Hosp. v Catherwood, 26 NY2d 493; Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49-50).

Rosenblatt, J. (dissenting). In our view, the majority’s position is incompatible with both the legislative design of General Municipal Law § 207-c and this Court’s decisional law. Accordingly, we respectfully dissent.

L

Steadfastly, the Court has supported the authority of municipalities to make independent determinations regarding initial and continued eligibility for disability benefits under General Municipal Law § 207-c. In Matter of DePoalo v County of Schenectady (85 NY2d 527), the Court read the plain wording of section 207-c as authorizing a municipality to withhold a police officer’s disability benefits pending its own independent determination of eligibility. Similarly, in Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations *87Bd. (85 NY2d 480), the Court held that under section 207-c a municipality could, among other things, unilaterally compel eligible police officers receiving disability benefits to return to light duty work. In both cases, the municipality’s right to make section 207-c eligibility determinations was held not subject to mandatory bargaining under the Taylor Law.

The majority has determined that subjecting the PBA proposal to mandatory bargaining is consistent with these holdings. As we see it, however, the majority has now with one hand supported a municipality’s authority to make eligibility determinations, but with the other hand effectively taken it away. Nothing in the legislation or decisional law justifies that result.

IL

The majority casts its decision as an answer to the question left open in Schenectady: whether “the procedures for implementation of the requirements of General Municipal Law § 207-c [are] subject to bargaining” (85 NY2d, at 487, supra). By divesting municipalities and ultimately the courts of final decision-making authority, the PBA proposal does not, in our opinion, fall within the realm of “procedure.”

Amicus curiae, New York State Conference of Mayors and Municipal Officials, has urged this Court to answer this question in the negative and declare that the proposal is not subject to bargaining at all. They assert that “the statute and its underlying public policy preclude a municipality from ever voluntarily agreeing to submit § 207-c eligibility determinations to arbitration.” Rejecting this position, the majority holds not only that a municipality may bargain the proposal, but that it must. We think this goes too far.

We recognize, of course, that “[t]he obligation under the Taylor Law to bargain as to all terms and conditions of employment is a ‘strong and sweeping policy of the State’ ” (see, Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 667, quoting Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778). As the majority notes, however, the Taylor Law’s requirement that terms and conditions of employment be negotiated is not absolute. Such terms and conditions are not proper subjects for mandatory bargaining when antithetical to statutory (or equally compelling) requirements (see, Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, 372-373). The policy in favor of negotiation must give way to a *88“clear” and “plain” contrary legislative intent or a statute that evinces the Legislature’s “inescapably implicit” design to remove a subject from mandatory negotiation (see, Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480, 486, supra). That design is present in the case before us.

The PBA proposal reads as follows:

“ARTICLE 14, SECTION 12 — MISCELLANEOUS PROVISION — The PBA is not seeking to divest any (purported statutory) right the City may have under [General Municipal Law §] 207 (c) to initially determine whether the officer was either injured in the line of duty or taken sick as a result of the performance of duty, but rather, the PBA seeks to negotiate the forum — and procedures associated therewith — through which disputes related to such determinations are processed, to wit: should the officer disagree with the City’s conclusion, the PBA proposes the expeditious processing of all disputes related thereto to final and binding arbitration pursuant to PERB’s Voluntary Disputes Resolution Procedure.” (Emphasis added.)

The proposal purports to relate only to the procedures used to review a municipality’s section 207-c “initial” eligibility determinations, and not to the determinations themselves. It begins by stating that “[t]he PBA is not seeking to divest any (purported statutory) right the City may have under [the statute] to initially determine whether an officer was either injured in the line of duty or taken sick as the result of the performance of duty.” This, however, merely recognizes the holding in Matter of DePoalo v County of Schenectady (85 NY2d 527, supra). In its next segment, the proposal seeks to negotiate the “forum — and procedures associated therewith — ” for the resolution of disputes relating to those initial determinations. Lastly, it provides, flat out, that disagreements over the municipality’s conclusions as to whether an “officer was either injured in the line of duty or taken sick as a result of the performance of duty” must be submitted to arbitration.

The practical effect of the proposal is evident. The municipality’s initial determination must be submitted to an arbitrator who would be entirely free to follow or overturn the municipality’s determination. The arbitrator would not be bound by the decisional law protecting, both substantively and procedurally, *89the prerogatives of municipalities in determining eligibility for these statutory entitlements. Mandatory bargaining of the proposal before us would, in practice, negate the holdings in both DePoalo and Schenectady. In the end — and that is where it counts — a municipality’s initial “determination” would be a matter of no consequence.

Indeed, the City has forecasted the sequence of events: The PBA and the City would be required to negotiate the PBA’s proposal. Upon the parties’ inability to agree, an impasse will be declared, requiring the PBA and the City to submit that issue to compulsory interest arbitration before PERB (see, Civil Service Law § 209 [4] [c]). A PERB arbitration panel will then decide whether the City is to have its eligibility determinations reviewed through arbitration. We do not believe the Legislature intended this result.

III.

The legislative history of section 207-c reflects the Legislature’s attempt to balance two competing interests. On one side, municipalities were apprehensive about the fiscal ramifications of extending disability benefits to a group of public employees besides fire fighters (who had been receiving similar benefits for nearly 20 years).1 On the other side, police officers (who, like fire fighters, are exposed to uncommonly serious hazards in their public jobs) understandably sought to gain similar entitlements.2

The Governor conditioned his approval on the inclusion of certain measures, among them light duty and medical treatment requirements, as well as other provisions dealing with termination of benefits. These provisions addressed the municipalities’ fears born of their experiences in implementing section 207-a — the companion provision for fire fighters (see, Governor’s Approval Memorandum, 1961 McKinney’s Session Laws of NY, at 2141). The Governor’s Approval Memorandum underscores the municipality’s prerogative for making eligibility determinations. In our view, the majority ruling opens the door to a legislatively unintended impact on the municipal purse.

*90The majority states that its holding “in no way diminishes the City’s right to make initial determinations under section 207-c” and that municipalities will continue to have the authority to issue “final” and “binding” orders (majority opn, at 84). This provides little comfort to municipalities. The power to make “initial” determinations and issue “final” and “binding” orders is hollow when the power to make the ultimate determinations is taken away. Moreover, under PERB’s rationale, the mechanism for resolving all disputes related to section 207-c eligibility would constitute a term or condition of employment. Thus, the supposedly impregnable “significant rights” (majority opn, at 84) we granted municipalities in the eligibility-related disputes of our previous cases would themselves be subject to arbitration.

The majority asserts that because section 207-c is silent as to “the procedures for contesting” a municipality’s eligibility determinations, it must then be subject to mandatory bargaining (majority opn, at 81). We disagree with this analysis. It rests on the premise that the Legislature contemplated that the municipality would have the sole power to make the “initial” eligibility or disqualification decision, only to have it reviewed and ultimately decided by other non-judicial means. Nothing in the statute or decisional law supports that premise. Sections 207-a and 207-c do not mention “initial” decisions by the municipality. They speak of municipal authority in absolute terms — language that formed the very basis for the Court’s holding in Schenectady (85 NY2d 480, supra). Ordinarily, when a statute gives a governmental entity unrestricted authority, any challenge must be resolved judicially, in accordance with CPLR article 78 (see, Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757). The Legislature, we submit, did not intend or even contemplate that any gap in the final eligibility decision-making process be filled by arbitration, negotiation or any other nonjudicial dispute resolution mechanism.

IV.

We also take issue with the majority’s conclusion that PERB’s finding fell well within the definition of “terms and conditions of employment” adopted by this Court (majority opn, at 82). PERB reasoned that because the statute imposes upon the municipality liability for “the full amount of [an eligible firefighter’s or police officer's] regular salary or wages” (General Municipal Law §§ 207-a, 207-c), the benefits are themselves “a form of wages.” This is dubious.

*91Normally, the scope of our review of matters within PERB’s expertise, including the reach of mandatory bargaining, is limited (see, Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47-48; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50-51). When the dispute, however, centers on whether a municipality’s implementation of a statute was the subject of mandatory bargaining, this Court has declared the issue one of statutory construction for a court’s de novo review, warranting no special deference to PERB (see, Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d, at 485, supra; Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., 75 NY2d 619, 626). This Court said as much in Schenectady, dealing with PERB’s determination as to a municipality’s implementation of General Municipal Law § 207-c (85 NY2d, at 485, supra).

As the case law recognizes, statutory beneficiaries may be eligible for benefits without having to “work at all” (Matter of Chalachan v City of Binghamton, 55 NY2d 989, 990; see also, Benson v County of Nassau, 137 AD2d 642, 643; Phaneuf v City of Plattsburgh, 84 Misc 2d 70, 74-75, affd 50 AD2d 614). The dictionary meanings of “wages” and “salary” contradict PERB’s conclusion, because both words are defined as payment or compensation for “services” (Webster’s Collegiate Dictionary 1031 [salary], 1326 [wages] [10th ed])„ Far from constituting “a form of wages,” benefits under the statutes are statutory entitlements. The payment amounts are simply tied to the wages or salary that the recipient would otherwise earn if not disabled (see, Matter of Chalachan v City of Binghamton, supra). Thus, in Matter of Town ofMamaroneck PBA v New York State Pub. Empl. Relations Bd. (66 NY2d 722), this Court rejected PERB’s determination that, because a certain statutory entitlement was an aspect of wages, a dispute over the benefit was subject to mandatory collective bargaining.

V.

In cases involving prohibited subjects of collective bargaining, this Court has recognized a syllogism: When an issue is declared to be nonnegotiable, there can be no arbitration of disputes relating to the same issue. Thus, in Matter of Cohoes City School Dist. v Cohoes Teachers Assn. (40 NY2d 774, 777), the Court held that, because the subject of teacher tenure decisions is prohibited from collective bargaining, a school district may not agree to arbitrate disputes over those decisions. Again, *92in Honeoye Falls-Lima Cent. School Dish v Honeoye Falls-Lima Educ. Assn. (49 NY2d 732), the Court held that because “it is beyond the power of a school board to surrender through collective bargaining [decisions] [on] maintaining adequate standards in the classrooms * * * [a] fortiori, an express statutory direction related to maintenance of standards * * * may not be the subject of arbitration” (id., at 734). The majority’s holding, however, would uncouple the syllogism and, in so doing, compromise the proper operation of section 207-c. In our view, the Court’s decisional law does not support that approach.

This Court has previously held that inasmuch as the Legislature intended to confer authority on the municipality to evaluate disabilities and determine their work-relatedness in sections 207-a and 207-c eligibility matters, those decisions were not subject to mandatory bargaining (see, Matter of DePoalo v County of Schenectady, 85 NY2d 527, supra; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480, supra). Inasmuch as the Legislature decreed that a municipality is relieved of any obligation to share that decision-making authority with its employees’ representative through collective bargaining, it cannot have intended that the municipality then be required to negotiate whether to cede that very authority to an arbitrator.

VL

The majority’s holding addresses matters beyond the scope of the PBA proposal itself. The proposal seeks only an arbitration agreement to have an arbitrator review and decide disagreements over a municipality’s “initial” determination of whether a police officer “was either injured in the line of duty or taken sick as a result of the performance of duty.” The proposal has nothing to do with disagreements over determinations relating to eligibility for light duty, specific light duty assignments, or medical treatment.

The majority nevertheless states that if, hypothetically, a municipality “orders an officer to undergo surgery (as is its right), the officer may wish to have the opinion of a personal physician considered, pursuant to a negotiated procedure, before submitting to the knife” (majority opn, at 84 [emphasis added]). The majority finds it of “no significance that * * * an officer seeking to have a personal physician’s opinion considered before submitting to surgery might be entitled to a due process hearing or article 78 review” (majority opn, at 84, n 2 [emphasis added]). We left no doubt, however, on this point. We unani*93mously held today, in Matter of Uniform Firefighters v City of Cohoes (94 NY2d 686, 691), that “the right of a disabled firefighter to receive General Municipal Law § 207-a disability payments is a property interest giving rise to procedural due process protection, under the Fourteenth Amendment.” Thus, although section 207-c specifically authorizes municipalities to make eligibility determinations, applicants for disability benefits are still entitled to due process hearings. Accordingly, applicants have an opportunity to present their own evidence, including the opinions of their personal physicians. Moreover, if applicants are dissatisfied with the outcome of the hearing, judicial review through article 78 of the CPLR is available.

VII.

Finally, our concurring colleague believes that we cast “something of a cloud over the legitimacy of the arbitration method for resolving disputes of this kind” (concurring opn, at 86). We need only provide our assurance — if indeed assurance is necessary — that we intend no such thing. We appreciate this Court’s decisional law in advancing arbitration concepts under the Taylor Law and would not deny them their rightful place in the sun. We made this point most recently in Matter of Board of Educ. [Watertown Educ. Assn.], 93 NY2d 132, 142), when we revisited the public sector arbitration landscape and proclaimed that any antiarbitrational presumption this Court may have implied in its earlier writings “is no longer justified either in law, or in the public sector labor environment.” Our disagreement in the case before us stems merely from the forced imposition of bargaining in the face of what we perceive to be a contrary legislative design. Moreover, we note that of the four cases cited by our concurring colleague, none involves a municipality being compelled to surrender its decision-making authority regarding eligibility for statutory entitlements; indeed, three of the four involve private sector arbitration.

Our concurring colleague refers to the leadership role of the Court in the field of arbitration. While we would not abjure such a mantle (particularly if bestowed upon us by outside scholars), it would not be at all threatened by mere fidelity to legislative intent.

For these reasons we would affirm the order of the Appellate Division.

Judges Bellacosa, Ciparick and Wesley concur with Chief Judge Kaye; Judge Bellacosa concurs in a separate concur*94ring opinion; Judge Rosenblatt dissents and votes to affirm in another opinion in which Judges Smith and Levine concur. Order reversed, etc.

. See, e.g., Letter of New York State Conference of Mayors and Other Municipal Officials, dated April 7, 1961, Bill Jacket, L 1961, ch 920; Letter of The Association of Towns of the State of New York, dated April 17, 1961, Bill Jacket, L 1961, ch 920.

. See, e.g., Letter of Red Jacket Police Club, Inc., dated April 6, 1961, Bill Jacket, L 1961, ch 920; Letter of Port Authority Police Benevolent Association, Inc., dated April 7, 1961, Bill Jacket, L 1961, ch 920.