8.52 - C. Exercise Of Remedial Power

• Jurisdiction: New York

C. Exercise of Remedial Power

The Board’s decision in City of Dunkirk⁴⁵¹⁸ outlines its general theory of remedial relief. The Board there stated that its remedial orders must be reasonably related to the injury to be rectified and should put the employee in the position in which the employee would have been but for the violation, not a better or worse position.⁴⁵¹⁹

Generally, PERB exercises a great deal of discretion in formulating remedies to improper practices that will effectuate the policies of the Taylor Law. It may be guided by the conduct of the charging party in fashioning a remedy as, for example, when it refused to order an employer to execute an agreement where it found that the charging party, in fact, never requested its execution.⁴⁵²⁰ PERB will not relieve a charging party of its own default where the default was not caused by the improper practice,⁴⁵²¹ nor will it ignore the improper conduct of a charging party when fashioning a remedy.⁴⁵²²

The positive conduct of the party committing the violation also may influence the formulation of the remedy. For example, PERB has refused to order affirmative relief where it found no past violations by the offending party, there was confusion as to the statutory duties and there had been full compliance with contractual obligations since issuance of the charge.⁴⁵²³ Similarly, where the offending party corrected the violation, affirmative action was denied.⁴⁵²⁴ The parties, by agreement, may limit the appropriate remedy.⁴⁵²⁵ Broader concerns of public interest will also be considered in the remedial process. For example, where immediate reinstatement to a former position would prove disruptive, the remedy may be deferred.⁴⁵²⁶

Remedial orders may be complicated by the existence of state laws or regulations. Where overlapping protection exists under these other laws or regulations, PERB’s remedial powers have been sustained. This issue has surfaced in cases involving the dismissal of probationary teachers for union activity. The New York Education Law confers upon school districts broad discretion in making tenure decisions. Nevertheless, in Board of Education of Central School District No. 1 of Grand Island v. Helsby,⁴⁵²⁷ where five nontenured teachers who had been active in union affairs were dismissed, the court refused to find that discretion to be boundless when its exercise impinged on the employees’ Taylor Law rights.⁴⁵²⁸ The court reasoned that the Taylor Law was intended to protect the right of all public employees, including teachers, to organize—an objective that would be frustrated by permitting a school Board to retaliate against a teacher for union activity.⁴⁵²⁹ The court, however, emphasized that its holding did not prohibit the dismissal of probationary teachers for legitimate reasons.⁴⁵³⁰

When a city transferred bargaining unit work to non-unit employees, PERB ordered the reinstatement of the affected unit employee to her former position as acting purchasing agent, with back pay. This was contingent upon there being no list of eligible candidates established pursuant to a civil service exam for purchasing agent. She would have no more right to a permanent appointment than she did formerly.⁴⁵³¹ However, the courts held that PERB exceeded its authority when it directed the reinstatement of the employee with back pay. She had been legally able to serve as acting purchasing agent only for three months, and her continued service beyond that period was illegal and in violation of article V, § 6 of the N.Y. State Constitution.⁴⁵³²

In Tischler v. Board of Education,⁴⁵³³ a case not involving PERB’s remedial powers, the Second Department held that a school board could not deny tenure to a teacher to retaliate for her union activity, but also stressed that union activity would not protect from dismissal any teacher whom the board decides not to retain for bona fide, legitimate reasons.⁴⁵³⁴ In an analogous situation, the New York Court of Appeals determined that PERB had jurisdiction to remedy the improper transfer of firefighters, despite an exclusive statutory grant to the commissioner of public safety to administer, supervise and control the fire department.⁴⁵³⁵ While legitimate exercises of this supervisory power remained beyond PERB’s review, the employer could not, “under the guise of exercising ministerial or management prerogatives, deprive its employees of their statutory rights to form, join or participate in an employee organization.”⁴⁵³⁶ Similarly, the Third Department annulled that part of a PERB order requiring that a police officer, who had been demoted as a result of protected activity, be restored to the rank and compensation of sergeant, even though he held only a temporary appointment as sergeant and was not...