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Processing PERB appeals

Processing PERB appeals
Jardim v PERB, 265 A.D.2d 329

In this action the Appellate Division held that LeRoy Jardim?s petition seeking review of the determination of the New York State Public Employment Relations Board was properly dismissed he failed to exhaust his administrative remedies, citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, and other decisions.

The New York State Public Employment Relations Board [PERB] had adopted rules providing for the filing of unfair labor practice charges, which include as its first step in the adjudication process a review by an administrative law judge [ALJ]. Its rules also provides for the filing of ?exceptions? to a determination by an ALJ.

As the Jardim decision illustrates, the failure of a party to follow the administrative review and appeal procedures established by PERB could be fatal to the party?s claim.

Jardim was employed by the New York City Transit Authority (NYCTA). He also served as a union steward for the Transportation Workers Union. In his capacity as a union steward Jardim filed an improper practice charge with PERB complaining that he was prevented from representing a union member. He also charged that he had been disciplined for conduct purportedly arising out of his union duties.

In a decision dated January 30, 1998, PERB?s ALJ found that the NYCTA committed no violation and dismissed the charge against it.

Although PERB rules provide that a party may filed ?exceptions? to a ruling, finding, conclusion or recommendation? made by an ALJ within 15 business days of receiving the ALJ?s determination, Jardim did not file any exception to the ALJ?s determination dismissing his charges. He, instead, filed an Article 78 action challenging the ALJ?s decision.

PERB?S rules also provide that if a party does not file a timely exception to a ruling, finding, conclusion or recommendation, any objections are deemed waived. In other words, if no exceptions are filed, ?the decision and recommended order, or any part thereof, which concludes that a charge should be dismissed, in whole or in part, will be final? (4 NYCRR 204.14[b]). State Supreme Court Justice Belen dismissed Jardim?s complaint commenting that ?[i]t is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law.?

Judge Belen also said that an Article 78 proceeding cannot be used to challenge a determination which is not final ?or can be adequately reviewed by appeal to ... some other body or officer ...,? citing Section 7801.1 of the Civil Practice Law and Rules.

According to the ruling, Jardim had an administrative appeals process available to him, but he apparently chose not to use it. The court rejected Jardim?s theory that because ?he did not file any exceptions to the ALJ?s decision, it became final and he therefore met the threshold requirement for bringing an Article 78 proceeding challenging an administrative determination? and dismissed his petition.

Full post as published by New York Public Personnel Law on September 18, 2009 (boomark / email).