City School District of City of Elmira v. New York State Public Employment Relations Board

Levine, J.

(dissenting). It seems clear that an application for funding to supplement the salaries of teachers and other professional employees of local school districts, available under the newly created Excellence in Teaching Apportionment Program (hereinafter EIT) (Education Law § 1950 [15]; § 3602 [27], as added by L 1986, ch 53, §§ 20, 49), could rationally be considered by respondent Public Employment Relations Board (hereinafter PERB) as a matter directly affecting terms and conditions of employment, subject to mandatory collective bargaining (see, Civil Service Law § 204 [2]). Indeed, the courts have held that the statutory phrase, terms and conditions of employment, is to be given broad application, subject only to limitations which are explicit in another statute (Board of Educ. v Associated Teachers, 30 NY2d 122, 129), or, at least, plainly and clearly set forth in statute or decisional law (Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743, 744). When issues affecting terms and conditions of employment arise during the term of a collective bargaining agreement which are not covered by the agreement, they are, nevertheless, subject to collective bargaining (see, Matter of City of Poughkeepsie v Newman, 95 AD2d 101, 103, appeal dismissed 60 NY2d 859, lv denied 62 NY2d 602).

It follows from the foregoing that, without something in statutory or decisional law plainly and clearly excepting negotiations as to whether petitioner should apply for EIT funding to supplement salaries, PERB’s determination should be upheld. The majority’s decision alludes to no such plainly worded limitation. Instead, it reasons that, because the Legislature specifically provided that "all salary increases funded pursuant to this subdivision shall be determined by separate collective negotiations conducted pursuant to the provisions and procedures of article fourteen of the civil service law” (Education Law § 3602 [27] [a] [emphasis supplied]), the ex*40press inclusion of a duty to bargain over the distribution of EIT funds, once applied for, implies an intent to exclude a duty to bargain over whether a school district should apply for such funds in the first instance.

The majority has, thus, based its decision on the principle of statutory construction, expressio unius est exclusio alterius (McKinney’s Cons Laws of NY, Book 1, Statutes § 240). This, in our view, is erroneous on at least two grounds. First, it flies in the face of both the general legislative policy of the Taylor Law (Civil Service Law art 14), previously discussed, to require conditions of employment (except as to matters explicitly excluded), and of the "indisputable goal of the entire EIT program * * * to provide some relief for that class of professional educators in the public schools whose compensation suffered from the budgetary constraints experienced in general by local school districts” (Schneider v Ambach, 135 AD2d 284, 287). The principle of construction relied upon by the majority is nothing more than an aid in interpretation. It must not be utilized to override the purpose of an enactment or defeat the legislative intent (see, Matter of John P. v Whalen, 54 NY2d 89, 96; Matter of Auburn Police Local 195 v Helsby, 62 AD2d 12, 16, affd 46 NY2d 1034; Erie County v Whalen, 57 AD2d 281, 284, affd 44 NY2d 817).

Second, the doctrine of expressio unius est ¡exclusio alterius is in any event inappropriate here to imply a legislative intent to exclude the duty to bargain over applications for EIT funds. Logically, the negative implication drawn here by the majority would only be valid if the statutory language under analysis evinced a legislative intent to create a new duty to bargain on the part of school districts over distribution to eligible educators of EIT funds once received by a district. However, it can hardly be doubted that the apportionment of the funds among eligible teachers would have been the subject of mandatory negotiations under the Taylor Law, even in the absence of a specific provision in the EIT legislation. The more rational interpretation of the statutory language in question is that it was intended to provide for "separate” collective bargaining over the allocation of EIT funds and, thus, to avoid interference with the process of negotiations between school districts and employee unions over the general terms and conditions of employment. Thus construed, there would be no conflict between the specific EIT legislation and the general policies of the Taylor Law, necessary to support the exclusionary inference drawn by the majority.

*41Since we are equally unpersuaded by the alternative contentions of petitioner, we would confirm PERB’s determination and dismiss the petition.

Casey and Yesawich, Jr., JJ., concur with Harvey, J.; Mahoney, P. J., and Levine, J., dissent and vote to afiirm in an opinion by Levine, J.

Determination annulled, and petition granted, with costs.