Patrolmen's Benevolent
Association of the City of
New York Inc. et al.,
Respondents,
v.
City of New York, et al.,
Appellants,
and New York State Public Employment Relations Board, et al.,
Respondents.
2001 NY Int. 149
In this declaratory judgment action arising from an
ongoing collective bargaining dispute between the Patrolmen's
Benevolent Association of the City of New York (PBA) and the City
of New York (City), the primary issue presented is whether
chapter 641 of the Laws of 1998, which amended the Public
Employees' Fair Employment Act (McKinney's Civil Service Law §§
200, et seq. [Taylor Law]), violates the home rule provisions of
We hold that because chapter 641 is a special law that serves a substantial State concern, the home rule requirements were not implicated and thus the statute is constitutional and enforceable even absent a home rule message. We further hold that once a police or fire union opts to seek impasse resolution by PERB and PERB declares an impasse, chapter 641 gives PERB exclusive jurisdiction to resolve such an impasse.
An overview of the statutory framework is necessary to
a complete understanding of the issues involved. The Taylor Law
is a State-wide comprehensive scheme for regulating relationships
between public employers and public employees at all levels of
government. With the enactment of the Taylor Law, the
Legislature created PERB, an independent board empowered to
resolve employment disputes between public employers and the
collective bargaining representatives of public employees (Civil Service Law § 205). PERB was authorized to determine when
impasse had been reached and to render assistance in resolving
the impasse (Civil Service Law § 209). The Taylor Law includes a
Section 212 of the Civil Service Law draws an express
distinction between the City and all other local governments.
Other than the City, local governments that wish to establish a
local administrative body and enact local procedures must apply
to PERB for determination that their procedures are substantially
equivalent to those set forth in the Taylor Law. Exempt from
this requirement, the City's procedures and provisions of local
law need not be submitted to PERB for approval and are deemed
effective unless adjudged otherwise in an action brought by PERB
(Civil Service Law § 212; City of New York v Patrolmen's
Benevolent Assn., , 89 NY2d 380, 386 [1996][City v PBA]). Since
the enactment in 1967 of the New York City Collective Bargaining
Law (New York City Collective Bargaining Law, Administrative
Code, Title 12, Chapter 3, §§ 12-300, et seq. [NYCCBL]), and
section 1171 of the New York City Charter, which created the BCB,
PERB has not sought a judicial declaration that the City law is
In 1974, the Legislature amended the Taylor Law to
provide compulsory binding arbitration for resolving impasses in
bargaining disputes involving police and fire unions not subject
to the authority of a mini-PERB (L 1974, chs 724, 725 amending
Civil Service Law § 209). The amendment provided that either
party could invoke the assistance of PERB when it believed an
impasse had been reached. The City was specifically exempted
from this requirement in recognition of its preexisting impasse
arbitration procedures (see, NYCCBL § 1173-7.0c, now recodified
as § 12-311c; City v PBA,
Through the enactment of chapter 13 of the Laws of
1996, the State Legislature attempted to transfer to PERB
jurisdiction over impasse negotiations for the City police and
fire unions. In City v PBA, we ruled that chapter 13 violated
home rule principles, because it constituted a special law
affecting the property, affairs or government of the City and
did not implicate a substantial State-wide concern. The
Legislature sought to cure the defect in the current statute,
chapter 641 of the Laws of 1998, which allows police and fire
unions in any municipality with a local impasse resolution system
The most recent collective bargaining agreement between the City and the PBA expired July 31, 2000, the first agreement between the parties to expire since the enactment of chapter 641. During negotiations, the City filed a scope of bargaining petition with the BCB alleging that some of PBA's bargaining demands were not mandatory subjects of bargaining. The challenged demands related mainly to officer discipline and scheduling. The PBA responded by filing a limited answer, claiming that BCB did not have jurisdiction over scope of bargaining, but rather PERB had the final say over whether a subject was within the scope of mandatory bargaining.
PBA next filed a declaration of impasse and a
declaratory ruling petition with PERB, seeking to trigger PERB's
impasse resolution procedures under Civil Service Law § 4)
and to obtain from PERB a determination on whether the subjects
of the parties' bargaining dispute were within the scope of
mandatory negotiations. The City filed an improper practice
charge with BCB, alleging that the PBA had not engaged in good
The actions were consolidated, with venue placed in Albany County. Thereafter, the City and the PBA each moved for summary judgment. Supreme Court granted the PBA's motion, upholding the constitutionality of the statute. The Appellate Division affirmed, finding that chapter 641 is not a special law subject to home rule requirements, but rather is a general law of State-wide application because it "uniformly prohibit[s] every local government from unilaterally preventing its police and fire unions from utilizing PERB. The Appellate Division also affirmed Supreme Court's finding that PERB has exclusive jurisdiction over scope of bargaining disputes between PBA and the City. The City appeals as of right on constitutional grounds, and BCB appeals pursuant to leave granted by this Court. We now modify.
The primary issue on appeal is the effect that chapter
Article IX, § 2 of the State Constitution grants the
Legislature authority to enact a general law relating to the
property, affairs or government of local governments (NY Const,
art IX, § 2[b][2]). A general law is defined as a law which in
terms and in effect applies alike to all counties, all counties
other than those wholly included within a city, all cities, all
towns or all villages (NY Const, art IX, § 3[d][1]). In
contrast, a special law is defined as a law which in terms and
in effect applies to one or more, but not all, counties, counties
other than those wholly included within a city, cities, towns or
Thus, as we stated in City v PBA, the State
Constitution grants significant autonomy to local governments to
act with respect to local matters. Correspondingly, it limits
the authority of the State Legislature to intrude in local
affairs by requiring it to act through general or special laws
(89 2 at 387). A recognized exception to the home rule
message requirement exists when a special law serves a
substantial State concern (id., at 389; see also, Matter of
Kelley v McGee, , 57 NY2d 522, 538 [1982]). To overcome the
infirmity of enacting a special law without complying with home
rule requirements, the enactment must have a reasonable
relationship to an accompanying substantial State concern (City v
PBA,
The preamble to chapter 641 describes the statute, in pertinent part, as [a]n Act to amend the civil service law, in relation to extending the applicability provisions establishing dispute resolution during collective negotiations to include the entire state. The Legislature found and declared that the local option provided in section 212 of the civil service law is not sufficient to fulfill the purposes of the public employees fair employment act when applied to resolving disputes between local governments and police and fire bargaining units (L 1998, ch 641, § 1). Section 2 of the law further amends Civil Service Law § 212 by adding a new subdivision 3 which specifically provides:
Notwithstanding any other provisions of law to the contrary, the resolution of disputes in the course of collective negotiations as provided by section two hundred nine of this article shall apply to any organized fire department, police force, or police department of any government subject to * * * this section. Provided, however, that a recognized or certified employee organization may elect to continue dispute resolution procedures which existed on the day prior to the effective date of this subdivision by notifying the appropriate public employment relations board in writing (L 1998, ch 641, § 2).
Like chapter 13 enacted before it, there can be no
serious contention that chapter 641 does not relate to property,
affairs or government as it regulates the collective bargaining
process between local governments and their public police and
fire unions and, thus, relates to the terms and conditions of
The statutes are significantly different, however, in that unlike chapter 13, which targeted only New York City, chapter 641 amends the local option provision that permitted all local governments to prohibit their police and fire unions from utilizing PERB's impasse resolution procedures through creation of their own mini-PERB. The newly amended Taylor Law now provides that all collective bargaining impasses reached between local governments and their police and fire unions are resolved by PERB. In recognition that certain localities had established different dispute resolution procedures prior to the enactment of chapter 641, the statute affords these unions the option to continue using an existing mini-PERB in effect before the effective date of the legislation.
We agree with the courts below that by its terms,
chapter 641 applies to all local governments in that none are
permitted to require their police or fire unions to forego access
to PERB and instead utilize a mini-PERB established by the
locality. However, only New York City and three surrounding
suburbs had an established mini-PERB governing impasse
proceedings. No other localities can be added to these four.
We conclude that chapter 641 is a special law, but
notwithstanding, the home rule procedural requirements were not
triggered here because the statute was enacted in furtherance of
and bears a reasonable relationship to a substantial State-wide
concern (see, City v PBA,
This conclusion is not at odds with City v PBA, in
which we held that chapter 13 of the Laws of 1996 was
unconstitutional because it was not enacted in compliance with
the home rule requirements of the State Constitution and could
not be upheld under any substantial State interest exception.
Chapter 13 prohibited only New York City, among all other units
of local government throughout the State, from providing for a
In the absence of an expressly identified State concern, this Court turned to legislative history to identify reasons for enacting chapter 13, which include the achievement of State-wide uniformity with respect to impasse procedures available to police department members under Civil Service Law § 209, the belief that the binding arbitration procedures of Civil Service Law § 209 under PERB's neutral jurisdiction would provide a fairer forum for the New York City police than local impasse procedures, and achievement of greater parity between the salaries of New York City police and those in other large metropolitan areas of the State (id., at 392-393). Without passing on whether these purposes were matters of substantial State concern, we concluded that chapter 13 was not sufficiently related to those legislative purposes because it isolated New York for different treatment and thus failed in its goal to achieve uniformity in the Taylor Law's treatment of police (id., at 393). Chapter 641 corrects the infirmities of its predecessor statute by not targeting one locality and uniformly applying to all local governments, by expressly stating the substantial State concern sought to be addressed and by ensuring that the legislation is rationally related to that concern.
Having found chapter 641 constitutional, we now turn to
The PBA urges that the Taylor Law, as amended by
chapter 641, provides PERB with exclusive jurisdiction over
impasse resolution and scope of bargaining disputes between the
PBA and the City. PBA contends that the only way BCB would have
jurisdiction over scope of bargaining would be if scope of
bargaining falls within the BCB's improper practice jurisdiction
under Civil Service Law § 205.5(d). PBA argues that following
the enactment of chapter 641, PERB acquired exclusive
jurisdiction over all scope of bargaining determinations as part
of its impasse resolution jurisdiction. PERB argues that it has
exclusive jurisdiction over impasse resolution and that its
jurisdiction has always encompassed the power to resolve scope
We conclude that under the present statutory scheme, once a police or fire union pursues impasse resolution assistance from PERB and PERB declares an impasse, it has jurisdiction over scope of bargaining issues between PBA and the City, to the extent necessary for PERB to exercise its exclusive jurisdiction to resolve impasses. Until such time, BCB retains jurisdiction to determine scope of bargaining outside of the impasse context. We decline to adopt the Appellate Division's proposition that PERB has exclusive jurisdiction over scope of bargaining disputes between PBA and the City.
The duty to bargain exists only as to mandatory
subjects, which are defined by law, and in the absence of an
agreement, only mandatory subjects can be submitted to an impasse
panel. It is true that an express statement of BCB's
jurisdiction to determine scope of bargaining issues is provided
in New York City Collective Bargaining Law, which states that
the board of collective bargaining * * * shall have the power
and duty * * * to make a final determination as to whether a
matter is within the scope of collective bargaining (12-
309a[2]). This provision dates back to the original enactment of
the law in 1967 (NYCCBL § 1173-5.0a[2], now recodified as § 12-
309a[2]) and was in effect when chapter 641 was enacted. Despite
that language, section 2 of chapter 641, codified as the new
subdivision 3 of the Civil Service Law § 212, provides in
While we do not disturb the conclusion that PERB has
scope of bargaining jurisdiction to the extent necessary to
exercise its impasse resolution jurisdiction, chapter 641 does
not divest BCB of all authority to determine scope of bargaining
issues arising from collective negotiations between the City and
police and fire unions (see, Town of Brookhaven v New York State
The lower courts found that if BCB were to retain all
of its scope of bargaining jurisdiction, it would create the
"absurdity" of having "two separate agencies on two different
levels of government attempting to separately resolve the
intertwined issues of scope of bargaining and impasse
resolution." We do not have conflicting rulings on the scope of
bargaining that concretize this absurdity before us. While the
problem of such rulings remains hypothetical, we decline to find
PERB vested with exclusive jurisdiction over scope of
bargaining issues. Chapter 641 and the Taylor Law generally
plainly evince the intention to equip PERB with all the powers it
needs to resolve impasses but not to otherwise disturb BCB's
improper practice jurisdiction (see, Cuevas Mem, Chairman of
PERB, Legislative Bill Jacket, L 1998, ch 641 [stating that PERB
Accordingly, the order of the Appellate Division should be modified, without costs, by declaring that chapter 641 is constitutionally valid as a special law because it serves a substantial State concern, that PERB has jurisdiction over scope of bargaining issues necessary to impasse determination when a New York City police or fire union opts to utilize PERB's impasse resolution procedures, and that it does not otherwise divest the Board of Collective Bargaining of the City of New York of scope of bargaining jurisdiction, and as so modified, affirmed.
Footnotes
1 *Other areas in which this Court has found sufficient State-
wide importance include State legislation concerning the public
health and safety of the people of the City of New York, payment
by the City of New York of its mandatory retirement or pension
liabilities,the protection of the resources of the Adirondack
Park region, the preservation of financially troubled cultural
institutions and museums of the State, and the residential
mobility of members of the civil service (see, Matter of Kelley v
McGee,