                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 22, 2015                   520689
________________________________

In the Matter of HUDSON VALLEY
   COMMUNITY COLLEGE et al.,
                    Petitioners,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE PUBLIC
   EMPLOYMENT RELATIONS BOARD
   et al.,
                    Respondents.
________________________________


Calendar Date:   September 8, 2015

Before:   Garry, J.P., Rose, Lynch and Devine, JJ.

                             __________


      Martin, Shudt, Wallace, DiLorenzo & Johnson, Troy (David T.
Garvey of counsel), for petitioners.

      David P. Quinn, Public Employment Relations Board, Albany
(Alicia L. McNally of counsel), for New York State Public
Employment Relations Board, respondent.

      Hinman Straub, PC, Albany (John R. Saccocio of counsel),
for Hudson Valley Community College Non-Instructional Employees
Union, respondent.

                             __________


Garry, J.P.

      Proceeding 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 petitioner Hudson Valley Community College
committed an improper employer practice.
                              -2-                520689

      Respondent Hudson Valley Community College Non-
Instructional Employees Union (hereinafter NIEU) represents
certain classified staff members employed by petitioner Hudson
Valley Community College (hereinafter petitioner). In 2004,
petitioner agreed to pay overtime at a rate of time and a half
for work performed by NIEU members in "second jobs" outside the
scope of their regular employment duties. In 2010, a dispute
arose as to a particular overtime payment and, thereafter, NIEU
and petitioner engaged in negotiations regarding the subject of
overtime compensation for second jobs. When they were unable to
reach an agreement, John R. Tibbetts, petitioner's director of
human resources, issued a memorandum announcing that petitioner
would no longer hire NIEU members for any second jobs and would
instead retain non-NIEU members, such as faculty members and
temporary staff, for such positions.

      NIEU filed an improper practice charge against petitioner
and, following a hearing, an Administrative Law Judge
(hereinafter ALJ) determined that petitioner's decision not to
hire NIEU members for second jobs constituted retaliation against
NIEU for its advocacy in the underlying dispute in violation of
Civil Service Law § 209-a (1) (a) and (c). Petitioner filed
exceptions to this decision, and respondent Public Employment
Relations Board (hereinafter PERB) affirmed the ALJ's
determination and ordered petitioner, among other things, to
rescind the memorandum, restore NIEU members to the second jobs
they had previously held and pay them back wages with interest.1
Petitioner and petitioner County of Rensselaer commenced this
CPLR article 78 proceeding seeking annulment of PERB's
determination and dismissal of the improper practice charge.
Supreme Court transferred the proceeding to this Court (see CPLR
7804 [g]).

      To prove its claim that petitioner engaged in an improper
practice, NIEU was required to establish that it was engaged in
activities protected by the Taylor Law (see Civil Service Law


    1
        PERB took no position on the merits of the parties'
underlying dispute regarding overtime compensation, and that
matter is not at issue in this proceeding.
                              -3-                520689

§ 200 et seq.), that petitioner knew of these activities, and
that it took the challenged action because of the activities (see
Matter of Civil Serv. Empls. Assn. v New York State Pub. Empl.
Relations Bd., 295 AD2d 668, 669 [2002]; Matter of Greenburgh No.
11 Union Free School Dist. v Kinsella, 253 AD2d 46, 49-50 [1999],
lv denied 93 NY2d 810 [1999]). "If the charging party proves a
prima facie case of improper motivation, the burden of persuasion
shifts to the party charged to establish that its actions were
motivated by legitimate business reasons" (Matter of Civil Serv.
Empls. Assn., Local 1000, AFSCME, AFL-CIO, Westchester County
Local 860, Unit 9200 v New York State Pub. Empl. Relations Bd.,
276 AD2d 967, 969 [2000], lv denied 96 NY2d 704 [2001] [internal
quotation marks and citations omitted]). Here, the parties agree
that NIEU's advocacy on the overtime issue was a protected
activity and that petitioner was aware of NIEU's advocacy. Their
dispute focuses on whether petitioner's decision to stop hiring
NIEU members for second jobs was improperly motivated.

      Tibbetts – the author of the challenged memorandum –
testified that from 2004 through 2010 when the dispute arose,
petitioner's practice had been to pay overtime to members who
worked in regularly scheduled second jobs, but not to do so for
work in occasional, sporadic positions. In the unsuccessful
negotiations that preceded Tibbetts' memorandum, petitioner
sought to continue its prior practice, while NIEU argued that
overtime should be paid for all work outside a member's regular
employment duties. According to Tibbetts, the parties became
"fairly entrenched" in their positions on this question and other
disputed overtime issues, and petitioner decided "to eliminate
the problem by not having [second] jobs available." Tibbetts
then circulated the disputed memorandum, which stated that
"[b]ecause of the intransigence of NIEU leadership, [petitioner]
can no longer hire current classified staff members for any
secondary functions, no matter how brief or infrequent, as this
results in a demand for 'overtime' payment for any work beyond
normal schedule." In his testimony, Tibbetts attempted to
clarify his use of the word "intransigence," explaining that no
anti-union animus was intended and that, instead, Tibbetts was
attempting to ensure that petitioner's supervisory staff did not
blame the administration for the conflict. Nevertheless, the
memorandum and Tibbetts' testimony constitute substantial
                              -4-                520689

evidence supporting PERB's determination that petitioner made its
decision to stop hiring NIEU members for second jobs because of
NIEU's advocacy, shifting the burden to petitioner to establish
that it had valid economic reasons for its actions (see Matter of
Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO,
Westchester County Local 860, Unit 9200 v New York State Pub.
Empl. Relations Bd., 276 AD2d at 969; Matter of Board of Educ. of
Deer Park Union Free School Dist. v New York State Pub. Empl.
Relations Bd., 167 AD2d 398, 399 [1990], lv denied 77 NY2d 805
[1991]).

      In this regard, Tibbetts testified that before petitioner
made its decision, he consulted petitioner's finance department
regarding the cost of compliance with NIEU's position on overtime
compensation and determined that it was "prohibitively
expensive." He provided specific examples of higher overtime
rates to employ NIEU members for some services, including
messenger work and evening phone coverage. However, there was
also testimony that non-NIEU members who replaced NIEU members in
certain second jobs – such as faculty members who were hired to
proctor examinations – were paid at a higher hourly rate than the
overtime compensation that would have been paid to NIEU members.
Tibbetts acknowledged that the result of petitioner's decision
was that non-NIEU members were hired even in such instances, when
doing so was more expensive. Additionally, at least one NIEU
member who had been employed in a second job was paid a flat
annual stipend that was unaffected by overtime rates, but
nevertheless lost the position as a result of petitioner's
decision. Substantial evidence in the record thus supports
PERB's determination that petitioner did not meet its burden to
establish that its actions were motivated by valid economic
concerns and that, instead, petitioner stopped hiring NIEU
members for second jobs in retaliation for NIEU's advocacy on the
overtime issue (see Matter of Village of Scotia v New York State
Pub. Empl. Relations Bd., 241 AD2d 29, 32 [1998]; Matter of Board
of Educ. of Deer Park Union Free School Dist. v New York State
Pub. Empl. Relations Bd., 167 AD2d at 400).

      Next, petitioner challenges the remedies ordered by PERB.
Such determinations "are peculiarly matters within administrative
competence" (Matter of City of Albany v Helsby, 29 NY2d 433, 439
                              -5-                520689

[1972]) and, therefore, "[a]n order devised by PERB to remedy an
improper practice should be upheld if it can be reasonably
applied" (Matter of City of New York v New York State Pub. Empl.
Relations Bd., 103 AD3d 145, 149 [2012], lv denied 21 NY3d 855
[2013]). PERB's order directing petitioner to reinstate NIEU
members to their former second jobs and to pay them back wages is
lawful and within PERB's broad remedial powers (see Matter of
City of Poughkeepsie v Newman, 95 AD2d 101, 105 [1983], appeal
dismissed 60 NY2d 859 [1983], lv denied 62 NY2d 602 [1984]).
Petitioner nevertheless contends that the order cannot be
reasonably applied because some of the second jobs in question no
longer exist, and some NIEU members who previously held second
jobs have now retired or left petitioner's employment. This
Court cannot consider this aspect of petitioner's argument, as
the evidence that petitioner now offers regarding specific
positions and employees was not part of the administrative record
before PERB when it crafted the remedial order (see Matter of
Lippman v Public Empl. Relations Bd., 296 AD2d 199, 203 [2002],
lv denied 99 NY2d 503 [2002]).

      There is, however, some record evidence supporting
petitioner's claim that determinations regarding reinstatement
and back pay are impracticable as to certain second jobs that
were infrequent and voluntary. Although some of the second jobs
that petitioner stopped offering to NIEU members were formerly
held by specific, identifiable individuals who worked regularly
scheduled hours, others – such as assisting at student
orientation events – were not regularly scheduled or assigned to
particular individuals, but instead were available on a sporadic
basis to those who chose to sign up for them. PERB's remedial
order cannot be reasonably applied to these positions, as it
cannot be determined who would have claimed the positions, how
many hours they would have worked, and how much back pay is owed.
We thus remit the matter to PERB for a determination as to which
NIEU members can be reinstated to second jobs that they
previously held or should receive back pay (see generally Matter
of Town of Islip v New York State Pub. Empl. Relations Bd, 23
NY3d 482, 494 [2014]; Matter of Manhasset Union Free School Dist.
v New York State Pub. Empl. Relations Bd., 61 AD3d 1231, 1235
[2009]; compare Matter of Village of Scotia v New York Pub. Empl.
Relations Bd., 241 AD2d at 32-33).
                              -6-                  520689

     Rose, Lynch and Devine, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as ordered petitioner Hudson Valley
Community College to reinstate members of respondent Hudson
Valley Community College Non-Instructional Employees Union to
second jobs that they previously held and to pay such employees
back wages with interest; matter remitted to respondent Public
Employment Relations Board for further proceedings not
inconsistent with this Court's decision; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
