IN RE: Patricia SLIKER et al. (2007)

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 which ruled that respondent Honeoye Central School District did not violate Civil Service Law § 209-a (1)(d) by transferring unit work to an outside contractor.

In September 2004, petitioner Honeoye Central School District Support Staff Association (hereinafter the Association) filed an improper practice charge against respondent Honeoye Central School District (hereinafter the District) under Civil Service Law § 209-a (1)(d) alleging that the District had transferred certain lawn and landscaping work, which had been performed exclusively by its members, to an outside contractor.   The District served an answer and a hearing was held before an Administrative Law Judge for respondent Public Employment Relations Board (hereinafter PERB).   At the conclusion of the hearing, the Administrative Law Judge found that the District had, in fact, violated Civil Service Law § 209-a (1)(d).  On administrative appeal, PERB disagreed and ruled that there was no violation because the subject work was not exclusive to the Association's members.   This CPLR article 78 proceeding ensued.

 As a threshold matter, our review is limited to whether PERB's determination is supported by substantial evidence (see Matter of Syracuse Police Benevolent Assn. v. New York State Pub. Empl. Relations Bd., 24 A.D.3d 913, 914-915, 805 N.Y.S.2d 457 [2005] ).   In evaluating whether the transfer of unit work violates the provisions of Civil Service Law § 209-a (1)(d), this Court has recognized that the initial inquiry is “ ‘whether the work [in question] has been performed by unit employees exclusively and whether the reassigned tasks are substantially similar to those previously performed by unit employees' ” (Matter of New York State Dept. of Correctional Servs. v. Kinsella, 220 A.D.2d 19, 22, 642 N.Y.S.2d 720 [1996], quoting Matter of Niagara Frontier Transp. Auth. [Niagara Frontier Transp. Auth. Pub. Officers Benevolent Assn.], 18 PERB 3083, 3182 [1985] ).   In the instant case, the lawn and landscaping work which was contracted out is the type of work that was normally performed by the District's groundskeepers, who are unit members.   On the issue of exclusivity, evidence was presented that many of the groundskeepers' duties had been performed over the years by their supervisor, a nonunit member.   Specifically, it was established that, during his 10-year tenure, the supervisor had mowed the lawns, aerated and fertilized the grounds, dragged and lined the fields and raked the leaves.   While he performed such tasks as needed and not according to a regular schedule, the scope and duration of his activities establish that they were more than incidental (see Matter of Civil Serv. Empls. Assn. [County of Westchester], 38 PERB 3032 [2005];  Matter of Civil Serv. Empls. Assn. [City of Batavia], 28 PERB 3076 [1995];  cf. Matter of Civil Serv. Empls. Assn. [County of Onondaga], 27 PERB 3048 [1994] ).   Accordingly, substantial evidence supports PERB's determination that the District did not violate Civil Service Law § 209-a (1)(d) because the work at issue was not exclusive to the Association's members.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

MERCURE, J.P.

PETERS, SPAIN, ROSE and LAHTINEN, JJ., concur.