Holding: The decision of the New York Public Employment Relations Board in Rochester Police Locust Club and City of Rochester, Case #U-23938, 37 NYPER 3015, 2004 NYPER (LRP) Lexis 80 is reversed. To view the 2004 PERB decision, click here.



Supreme Court of New York

Appellate Division

Fourth Department


Matter of City of  Rochester, 



Public Employment Relations Board


Rochester  Police Locust Club, Inc.,



No. TP 04-01759


15 A.D.3d 922

790 N.Y.S.2d 788

2005 N.Y. App. Div. Lexis 1068


February 4, 2005


Appeal to the Court of Appeals was denied on May 5, 2005 at 2005 N.Y. Lexis 1120.


Present: Green, J.P., Scudder, Martoche, Smith, and Lawton, JJ.




It is hereby ORDERED that the determination be and the same hereby is unanimously annulled on the law without costs and the petition is granted in accordance with the following Memorandum: In this transferred CPLR article 78 proceeding, petitioner, City of Rochester (City), seeks to annul a determination of respondent Public Employment Relations Board ( PERB), made after a hearing, that the City committed an improper employer practice in violation of Civil Service Law § 209-a (1) (a) by denying the members of respondent Rochester Police Locust Club, Inc. (Union) access to Union representatives during criminal investigation interviews. We conclude that  PERB  abused its discretion in making that determination in light of New York State’s strong public policy prohibiting any interference with criminal investigations.


   The Union filed two improper employer practice charges against the City as the [*790] employer of two Union members, officers of the Rochester Police Department (RPD). The charges arose from two unrelated criminal investigations that were instituted after the officers discharged their weapons in the course of their duties. The Union alleged that the City improperly prohibited the officers from consulting with their Union representatives prior to being interviewed during the criminal investigations and prevented the Union representatives from being present during the interviews. The officers were permitted to consult with Union representatives prior to later interviews that RPD conducted as part of the employment disciplinary process. An administrative law judge (ALJ) consolidated the two cases, conducted a hearing, and issued a decision that ordered RPD not to question any police officers on any matter without permitting a Union representative to be present.  PERB  affirmed the ALJ’s decision and the City commenced the instant proceeding.


   We conclude that  PERB  abused its discretion in making its determination. In general,  “as the agency charged with implementing the fundamental policies of the Taylor Law [Civil Service Law article 145], [PERB] is presumed to have developed an expertise and judgment that requires us to accept its construction [of the statute] if not unreasonable” (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 N.Y.2d 398, 404, 399 N.E.2d 55, 423 N.Y.S.2d 466; see Matter of Town of Greece v Cuevas, 280 A.D.2d 967, 968, 721 N.Y.S.2d 216).  PERB’s  interpretation of the Taylor Law must therefore be followed unless it is affected by an error of law, arbitrary and capricious, or an abuse of discretion (see Incorporated Vil. of Lynbrook, 48 N.Y.2d at 404).


   In an unrelated proceeding, PERB  had previously determined that any employee has the right, under Civil Service Law § 209-a (1), to have union representatives present at any interview that the employee reasonably believes could result in disciplinary action (see Matter of New York City Transit Authority v New York State Public Employment Relations Board and Transport Workers Union, 196 Misc. 2d 532, 766 N.Y.S.2d 282).  PERB  determined that the right to union representation set forth in National Labor Relations Bd. v J. Weingarten, Inc. (420 U.S. 251, 43 L. Ed. 2d 171, 95 S. Ct. 959) applied under the Taylor Law as well (see id.).


   Without expressing any view of the propriety of that determination, we conclude that, in this instance, PERB abused its discretion in expanding a public employee’s rights to include the right to have a union representative present during a criminal investigation.  New York State has a strong public policy that prohibits union interference with criminal investigations (see Matter of City of New York v Uniformed Fire Officers Association, Local 854, IAFF, AFL-CIO 95 N.Y.2d 273, 281-283). Under that public policy, a collective bargaining agreement may not limit or restrict procedures that are used in a criminal investigation (see City of New York, 95 N.Y.2d at 284; Board of Educ. of City of N.Y. v Hershkowitz, 308 A.D.2d 334, 337, 764 N.Y.S.2d 254, lv dismissed 2 N.Y.3d 759, 811 N.E.2d 38, 778 N.Y.S.2d 776).  PERB’s determination that a Union representative must be present during a criminal interview violated that public policy.


    The City’s remaining contentions are academic in light of our determination.