        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

515
CA 12-02092
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


BUFFALO UNITED CHARTER SCHOOL, BROOKLYN
EXCELSIOR CHARTER SCHOOL AND NATIONAL
HERITAGE ACADEMIES, INC.,
PETITIONERS-APPELLANTS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS
BOARD, COUNCIL OF SCHOOL SUPERVISORS AND
ADMINISTRATORS, LOCAL 1, AFSA,
RESPONDENTS-RESPONDENTS-APPELLANTS,
AND BUFFALO UNITED CHARTER SCHOOL EDUCATION
ASSOCIATION, NYSUT/AFT, AFL-CIO NEW YORK,
RESPONDENT-RESPONDENT.


HISCOCK & BARCLAY, LLP, BUFFALO (LAURENCE B. OPPENHEIMER OF COUNSEL),
AND WHITEMAN OSTERMAN & HANNA LLP, ALBANY, FOR
PETITIONERS-APPELLANTS-RESPONDENTS.

DAVID P. QUINN, ALBANY, FOR RESPONDENT-RESPONDENT-APPELLANT NEW YORK
STATE PUBLIC EMPLOYMENT RELATIONS BOARD.

DAVID N. GRANDWETTER, NEW YORK CITY, FOR
RESPONDENT-RESPONDENT-APPELLANT COUNCIL OF SCHOOL SUPERVISORS AND
ADMINISTRATORS, LOCAL 1, AFSA.

RICHARD E. CASAGRANDE, LATHAM (JENNIFER N. COFFEY OF COUNSEL), FOR
RESPONDENT-RESPONDENT.

DAVID J. STROM, GENERAL COUNSEL, WASHINGTON, D.C., OF THE WASHINGTON,
D.C. BAR, ADMITTED PRO HAC VICE, FOR AMERICAN FEDERATION OF TEACHERS,
AFL-CIO, AND PHILIP A. HOSTAK, FOR NATIONAL EDUCATION ASSOCIATION,
AMICI CURIAE.


     Appeal and cross appeals from a judgment (denominated order and
judgment) of the Supreme Court, Erie County (John M. Curran, J.),
entered July 11, 2012 in a proceeding pursuant to CPLR article 78.
The judgment denied the petition in part.

     It is hereby ORDERED that the case is held and the decision is
reserved in accordance with the following Memorandum: In this
proceeding pursuant to CPLR article 78, petitioners appeal, and
respondents New York State Public Employment Relations Board (PERB)
and Council of School Supervisors and Administrators, Local 1, AFSA,
                                 -2-                           515
                                                         CA 12-02092

cross-appeal from a judgment determining, inter alia, that PERB
properly exercised jurisdiction over two collective bargaining
matters. We agree with petitioners, however, that Supreme Court erred
in determining that PERB properly exercised jurisdiction over those
matters. Inasmuch as the two collective bargaining matters “arguably”
fall within the scope of the National Labor Relations Act (NLRA) (San
Diego Bldg. Trades Council, Millmen’s Local 2020 v Garmon, 359 US 236,
245; see e.g. Chicago Mathematics & Science Academy Charter School,
Inc., 359 NLRB 41; Charter School Admin. Servs., 353 NLRB 394), the
National Labor Relations Board (NLRB) has primary jurisdiction “to
determine in the first instance” whether its jurisdiction preempts
PERB’s jurisdiction (Metropolitan Life Ins. Co. v Massachusetts, 471
US 724, 748). Under the circumstances of this case, and in the
interest of judicial economy, we hold the case pending a determination
of the NLRB whether the NLRA applies to the collective bargaining
matters herein at issue and thus preempts PERB’s jurisdiction (see
generally New York Inst. for Educ. of Blind v United Fedn. of
Teachers’ Comm. for N.Y. Inst. for Educ. of Blind, 83 AD2d 390, 397-
398, affd 57 NY2d 982).




Entered:   June 7, 2013                        Frances E. Cafarell
                                               Clerk of the Court
