IN RE: NYC HEALTH + HOSPITALS (2020)

Judgment (denominated an order), Supreme Court, New York County (Melissa A. Crane, J.), entered on or about February 27, 2019, which denied the petition seeking an order vacating a determination of the New York City Office of Collective Bargaining's (OCB) Board of Certification (the Board), dated March 7, 2018, adding petitioner's Director of Planning (DP) job title to the collective bargaining unit of respondent Organization of Staff Analysts (the Union), and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

We accord deference to the Board's rational interpretation of the governing statutes (see Civil Service Law § 201[7][a];  McKinney's Unconsol Laws of N.Y. §§ 7385[11], 7390[5];  Administrative Code of City of N.Y. §§ 12–303[g][2], 12–305, 12–309[b][4] ), including its determination that the Health & Hospitals Corporation Act incorporates the Taylor Law's definition of “managerial or confidential” status for purposes of assessing HHC employees' eligibility for collective bargaining (Matter of NYC Health + Hosps. v. Organization of Staff Analysts (HHC I), 171 A.D.3d 529, 530, 98 N.Y.S.3d 563 [1st Dept. 2019]).

The Board's determination that DPs do not serve in a managerial capacity was rationally based in the administrative record (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974]).  The record showed that the DPs, while highly expert, functioned substantially in advisory capacities, making recommendations and working collaboratively to carry out responsibilities delegated to them, but not having authority to make policy on their own (see HHC I, 171 A.D.3d at 530, 98 N.Y.S.3d 563).  Nor is there any evidence that any of the DPs engaged in activities which would qualify them for confidential (as distinct from managerial) status, such as preparing for or conducting collective negotiations (see Civil Service Law § 201[7][a];  Matter of Lippman v. Public Empl. Relations Bd., 263 A.D.2d 891, 902, 694 N.Y.S.2d 510 [3d Dept. 1999]).