Civil Service Employees Ass'n v. Newman

OPINION OF THE COURT Mahoney, P. J. On August 31, 1977 the Public Employees Federation (PEF) filed a petition for decertification of the Civil Service Employees Association (CSEA) as the exclusive bargaining representative for the Professional, Scientific and Technical Services Bargaining Unit (PS & T unit) and certification of PEF as its bargaining agent. The Director of Public Employment Practices and Representation ordered an election in the PS & T unit which was conducted by CSEA in April of 1978 and won by PEF. Thereafter, a hearing was held to resolve objections filed by CSEA concerning the manner in which the election was conducted. All objections were overruled by the director, and the Public Employment Relations Board (PERB), on September 27, 1978, affirmed the director’s decision and certified PEF as the representative of the PS & T unit. In connection with an article 78 proceeding to review PERB’s order, CSEA applied for a stay. Special Term granted the stay and provided, inter alia, that during the course of the litigation CSEA was to supply representational services to the PS & T unit, and, further, that all funds collected under the statute (Civil Service Law, § 208) were to be placed in escrow with the State Comptroller. This court continued the stay by orders dated October 12, 1978 and January 11, 1979 (Matter of Civil Serv. Employees Assn, v Newman, 66 AD2d 38), but on March 27, 1979 the Court of Appeals ultimately resolved the underlying proceeding by directing the reinstatement of PERB’s order certifying PEF (Matter of Civil Serv. Employees Assn, v Newman, 46 NY2d 1005). PEF’s motion in this court to vacate the stay gave rise to the posited issue as to entitlement to the escrowed moneys deposited with the Comptroller before the date of the Court of Appeals decision. We referred the matter to Special Term which (1) granted the motion to vacate the stay and for release of the moneys to PEF, (2) denied CSEA’s cross motion for an order directing that the same funds be released to that union, and (3) denied the motion of four individuals, on behalf of themselves and others similarly situated, for permission to intervene and for an order direct [123] ing the return of the escrow funds to those members of the PS & T unit from whose salaries said funds were deducted. CSEA and the proposed intervenors appealed. A certified employee organization is entitled to membership dues deductions from the salaries of its members (Civil Service Law, § 208, subd 1, par [b]) as well as agency shop fees (Civil Service Law, § 208, subd 3, par [a]). PEF, when certified as the exclusive bargaining agent for the PS & T unit on September 27, 1978, became immediately entitled to receive such dues and fees. The stay issued by Special Term and continued by this court did not decertify PEF, but merely stayed any action by that union as the certified employee organization. When the Court of Appeals modified this court’s decision (Matter of Civil Serv. Employees Assn, v Newman, 46 NY2d 1005, supra) and reinstated PERB’s order of certification, all of PEF’s rights, including those to the escrowed moneys, related back to the date of certification and continued from that date forward. This result necessarily follows from the inability of a court, including the Court of Appeals, to certify an employee organization as a bargaining unit. Only PERB has such authority (Civil Service Law, § 207, subd 3). A court can only review PERB’s determination in an article 78 proceeding. Thus, the Court of Appeals confirmed PEF’s certification as of September 27, 1978; it did not judicially confer that status as of the date of its decision. Since we feel that PEF is entitled, by mandate of the statute (Civil Service Law, § 208, subd 1, par [b]; subd 3, par [a]), to both the membership dues and agency fees escrowed during the period marked by the date of Special Term’s stay order and the date of the Court of Appeals modification of our reversal of PERB, we cannot indulge equitable considerations. Moreover, the president of CSEA, in an affidavit in support of the motion to escrow the funds, stated that "CSEA will continue to represent the 45,000 employees in the PS & T unit without ñnancial remuneration until a ñnal determination of this appeal has been made” (emphasis supplied). In the decision being appealed, Special Term observed that "[a]bsent such an arrangement the court most certainly would have conditioned the stay upon the posting of security by CSEA for the benefit of PEF should it ultimately prevail, as it has done.” In any event, the motivation of CSEA in volunteering to continue to act without remuneration is irrelevant when juxtaposed to the clear mandate of the statute. [124] Turning to that branch of the order appealed from which denied intervention by certain members of the PS & T unit, we conclude that Special Term did not abuse its discretion in so ruling. The proposed intervenors, in the context of an article 78 proceeding, are not entitled to intervene as of right pursuant to CPLR 1012 (Matter of Doe v County of Westchester, 45 AD2d 308, 312), but are subject to the provisions of CPLR 7802 (subd [d]) which provides that the court "may allow other interested persons to intervene”. The proposed intervenors lack the requisite "interest” both as individual petitioners and as representatives of a class. Here, the statutorily required "interest” in the proceeding (CPLR 7802) must be found in the proposed interveners’ entitlement to the escrowed funds. We conclude that they have none. Their contention that PEF was not certified during the stay period and, accordingly, not entitled to the subject moneys is untenable. Equally amorphous is their position that CSEA lost all claim to the escrowed funds because it failed to negotiate collectively during the same period. Entitlement to dues (Civil Service Law, § 208, subd 1, par [b]) and agency fees (Civil Service Law, § 208, subd 3, par [a]) is dependent on certification, not on any theory of "services rendered”. Similarly, the proposed intervenors failed to establish the necessary prerequisite for a class action, i.e., that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy” (CPLR 901, subd a, par 5). Clearly, if Special Term had determined that neither CSEA nor PEF was entitled to the funds, the interest of the PS & T unit would have been protected under the principles of stare decisis (Matter of Jones v Berman, 37 NY2d 42, 57; Matter of Rivera v Trimarco, 36 NY2d 747). Thus, since the proposed intervenors are not entitled to the es-crowed funds and lack the prerequisites necessary for the maintenance of a class action, they are not movants whose rights need to be protected (see Matter of New York City Health & Hosps. Corp. v City of New York, 85 Misc 2d 501, affd 56 AD2d 535). Finally, we cannot accept the view of the dissent that intervention of certain employees of the PS & T unit is necessary in order to permit inquiry upon remittal as to when a dues structure was adopted by PEF. The right to fashion such a schedule is a derivative of the express grant of the applicable statute (Civil Service Law, § 208, subd 1, par [b]) [125] and the stay contained in Special Term’s order of September 29, 1978, continued by us by orders dated October 12, 1978 and January 11, 1979, specifically stated "[t]hat the Public Employees Federation * * * [is] hereby stayed from the exercise of any rights accompanying certiñcation as enumerated under Sections 204 and 208 of the Civil Service Law” (emphasis supplied). It necessarily follows that the "right” to develop a dues schedule for the employees of the PS & T unit was stayed until final resolution of the underlying issue. Indeed, this court, by its order of April 16, 1979, in response to PEF’s motion to release the escrowed funds to it following the final determination by the Court of Appeals, CSEA’s cross motion for like relief and the motion for intervention by certain employees of the PS & T unit, by way of partial relief, ordered "[t]hat the prior orders of this court are modified so as to provide that all monies collected on or after March 27, 1979 * * * now held in an escrow account by the Comptroller * * * be released to the Public Employees Federation, together with all accrued interest thereon.” There was no valid impediment premised on the absence of a dues schedule by PEF at that time, and, in our view, none exists now. The order should be affirmed, without costs.