
    In the Matter of New York State Public Employment Relations Board, Respondent, v Board of Education of the City of Buffalo, Appellant, and District Council of Buffalo and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al., Intervenors-Respondents.
    Argued January 7, 1976;
    decided March 25, 1976
    
      
      Leslie G. Foschio, Corporation Counsel (Anthony C. Vaccaro of counsel), for appellant.
    I. The decision of the court below should be reversed because it erroneously permitted an exercise of authority by PERB not permitted by statute. (Matter of Jefferson County Bd. of Supervisors v New York State Public Employment Relations Bd., 44 AD2d 893; Matter of City of Albany v Helsby, 29 NY2d 433.) II. The Board of Education had the power to change the status of its tradesmen, employees from the ungraded to graded civil service. (Matter of Buffalo Bldg. Trades Council of Buffalo Bd. of Educ. Employees v Board of Educ. of City of Buffalo, 43 AD2d 796.)
    
      Martin L. Barr and Jerome Thier for respondent.
    I. Section 213 of the Civil Service Law bars the Board of Education from seeking review of the merits of PERB’s orders in this enforcement proceeding. (Sacharoff v Murphy, 182 Misc 235, 268 App Div 765, revd on other grounds sub nom. Sacharoff v Corsi, 294 NY 30, 326 US 744; Matter of Guardian Life Ins. Co. of Amer. v Bohlinger, 308 NY 174; Levy v 1165 Park Ave. Corp., 305 NY 607; United States Trust Co. of N. Y. v Mayor of City of N. Y., 144 NY 488; Godfrey v Winona Lake Development Co., 194 Misc 905; Matter of Aroune v Sipprell, 36 AD2d 888, 33 NY2d 844; Colodney v New York Coffee & Sugar Exch., 4 AD2d 137, 4 NY2d 698; Przyborowski v O’Connell, 272 App Div 1096; Berkshire Fine Spinning Assoc, v City of New York, 6 AD2d 252, 5 NY2d 347.) II. PERB has the power, in remedying violations of section 209-a (subd 1, par [a]) of the Civil Service Law (interference with rights of employees), to order a violater to restore the status quo ante the violations and to cease and desist from such further violations. (Matter of Helsby v Board of Educ., Cent. School Dist. No. 2, 34 AD2d 361; Matter of City of Albany v Helsby, 29 NY2d 433.) III. The evidence of record supports PERB’s findings that the Board of Education’s conduct interfered with its employees’ rights in violation of section 209-a (subd 1, par [a]) of the Civil Service Law. PERB’s orders are an appropriate remedy for such violation. (Medo Corp. v Labor Bd., 321 US 678; Radio Officers v Labor Bd., 347 US 17.)
    
      Richard Lipsitz, Thomas P. McMahon, Eugene W. Salisbury and Lawrence A. Schulz for intervenors-respondents.
    I. PERB’s statutory authority to remedy and establish procedures for the prevention of improper practices necessarily includes the power to order the restoration of the status quo ante. (Matter of City of Albany v Helsby, 29 NY2d 433; Matter of Yonkers Federation of Teachers v Helsby, 45 AD2d 132; Matter of Board of Educ., Union Free School Dist. No. 7, Town of North Hempstead [Great Neck Teachers Assn.], 69 Misc 2d 1061; Matter of City of Schenectady v Helsby, 57 Misc 2d 91; Matter of Helsby v Board of Educ., Cent. School Dist. No. 2, 34 AD2d 361; Labor Bd. v Jones & Laughlin, 301 US 1; Matter of 
      
      Stork Rest, v Boland, 282 NY 256.) II. The charging parties, Building Trades and District Council, should have been permitted to intervene fully in the proceeding on the petition for enforcement. (Auto Workers v Scofield, 382 US 205; Trbovich v Mine Workers, 404 US 528.) III. This court’s previous determination in the article 78 proceeding between the employee organizations and the Board of Education has no relevance to the present appeal. (Matter of New York State Labor Relations Bd. v Holland Laundry, 294 NY 480; Fulton County Gas & Elec. Co. v Hudson Riv. Tel. Co., 200 NY 287.)
   Jones J.

We hold that judicial review, if any be desired, of the remedial provisions of an order issued by the Public Employment Relations Board following its determination that an employer has violated provisions of the Civil Service Law, must be sought, along with any review of the determinative provisions of the order, in accordance with the prescriptions of section 213 of that law.

Confronted with critical budgetary problems and prospective municipal economic distress, the Board of Education of the City of Buffalo sought to change the terms and conditions of employment of its tradesmen employees. With the objective of reducing payroll expenditures the Board of Education, refusing tq recognize the unions, negotiated with individual employees to change the method of payment of their compensation from a prevailing hourly wage to an annual salary. Such negotiations having failed, the board unilaterally adopted a resolution placing its skilled trade employees in graded civil service status and establishing specified wage grades with annual salaries (thereby effectively transferring such employees from their prior status as ungraded skilled tradesmen entitled to compensation at prevailing wage rates).

Charges were filed with the Public Employment Relations Board (PERB) by the Buffalo Building Trades Council of Board of Education Employees (the Building Trades proceeding) and by the District Council of Buffalo Epid Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the Carpenters proceeding). PERB determined that the Board of Education was guilty of improper employer practices under section 209-a of the Civil Service Law, finding in both proceedings a violation of that section’s paragraph (a) of subdivision 1 (interference with public employees in the exercise of their statutory rights for the purpose of depriving them of such rights) and finding additionally in the Building Trades proceeding that the board was guilty of a violation as well of paragraph (d) (refusal to negotiate in good faith with the union as the duly certified representative of its members). PERB issued separate orders in the two proceedings incorporating its findings and determinations and, by way of affirmative remedial action, directed the Board of Education in each proceeding to cease and desist from the specified conduct and to restore the affected employees to their status quo ante and to pay them lost compensation with interest. In the Building Trades proceeding the Board of Education was also directed to negotiate in good faith with the union.

More than 30 days after service of copies of these orders on the Board of Education, PERB instituted the present single proceeding to enforce both orders. The Board of Education sought in such proceeding to challenge both determinative and remedial provisions of the PERB orders. Special Term, holding that the scope of its review of the PERB orders was unlimited, in both proceedings annulled the PERB determination that the Board of Education had violated section 209-a (subd 1, par [a]), i.e., that it had interfered with the exercise of employee rights, and struck the portions of the PERB orders directing restoration of the status quo ante with lost compensation. Special Term did direct the Board of Education to cease and desist from refusing to negotiate with the unions and from engaging in negotiations with individual employees.

The Appellate Division held that while failure to comply with the time limitations of section 213 foreclosed judicial review of the determinative provisions of the PERB orders, it did not preclude judicial review of PERB’s exercise of its remedial powers. As to the latter the Appellate Division then went on to reject the contentions of the Board of Education, held that PERB did have authority here to direct the restoration of the status quo ante and the payment of lost compensation, and accordingly granted the petition for enforcement. We affirm this disposition but not on the analysis at the Appellate Division.

Section 213 sets forth what are there described as the exclusive means of seeking judicial review of PERB orders. First, an aggrieved party may seek review in an article 78 proceeding brought within 30 days after service of a copy of the order sought to be reviewed (§213, subd [a], par [i]). Second, if PERB institutes an enforcement proceeding before the expiration of that same 30-day period, the respondent in his answer may raise any question that could have been raised in an article 78 proceeding (§ 213, subd [c]). The Board of Education now acknowledges that it cannot here bring itself within the ambit of either of these provisions. In our court it further concedes therefore that the determinative provisions of the two PERB orders (i.e., those finding improper employer practices in violation of statute) are now beyond review. It urges vigorously, however, that it may nonetheless contest the exercise by PERB of its remedial powers in the present enforcement proceeding. We disagree.

We find nothing in the statute which differentiates, for the purposes of judicial review, between the determinative and the remedial portions of a PERB order. Indeed it would be mischievous, unless commanded by statute, to hold that PERB orders could be fractured for purposes of judicial review. Nothing suggests that the review procedures prescribed in section 213 apply to one part of an order but not the other. Subdivision (b) of section 213 provides explicitly that PERB "orders” shall be reviewable only in article 78 proceedings. The present is not such a proceeding. It is an enforcement proceeding instituted by PERB. True, subdivision (c) also expressly provides that article 78 questions can be raised in an enforcement proceeding but only if such proceeding has been instituted within the 30 days after service of a copy of the order, which concededly was not the case here. Accordingly, having failed to show itself entitled to judicial review under the provisions either of paragraph (i) of subdivision (a) or of subdivision (c) of section 213, the Board of Education is foreclosed from seeking review of either the determinative or the remedial provisions of the PERB orders.

It remains to make two observations. First, situations may perhaps be imagined in which a substantial argument could be mounted that PERB, either in its determinations or in the exercise of its remedial power, has acted wholly beyond the jurisdiction conferred on it by the Legislature. We do not now say that in such an instance the aggrieved employer might not obtain judicial review notwithstanding its failure to comply with the procedural prescriptions of section 213. The present, however, is not such a case, and, declining to conjecture, we leave the identification of any such extreme case to its own day.

Second, the holdings on which those who concur would rely, apparently to leave open to judicial scrutiny the remedial provisions of any PERB order notwithstanding failure of the employer to comply with the procedural mandates of section 213, are inapposite. In Matter of Guardian Life Ins. Co. v Bohlinger (308 NY 174) we held only that the Legislature could not wholly foreclose judicial review of administrative action. Here by critical contrast the statute expressly accords a right of broad judicial review, only attaching a reasonable time limitation for the exercise of such right. In Matter of Foy v Schechter (1 NY2d 604) we permitted collateral attack on an administrative determination as to which, because of failure of performance of statutorily prescribed conditions precedent to agency action, it could realistically be said that the action of the administrative agency was without jurisdiction and thus void (see discussion above). In the present proceedings PERB had unquestioned jurisdiction both of the subject matter of the charges (violations of § 209-a) and of the parties. Indeed, the Board of Education advances no argument that PERB was without jurisdiction. The argument it would make, were we to reach it, is only that PERB erred as a matter of law in fashioning the affirmative remedy.

Accordingly, the order of the Appellate Division should be affirmed.

Fuchsberg, J. (concurring).

We all agree that the ultimate disposition of this case in the court below ought to be affirmed. Under the statutory design pursuant to which the PERB acts, upon its finding that the employer has interfered with the employees’ exercise of their statutory rights (§ 209-a, subd 1, par [a]), it was fully authorized by section 205 (subd 5, par [d]) to require a return to the status quo, complete with back pay. PERB made such a finding here, and the question of whether it had substantial evidence for its determination or not is indeed foreclosed by the parties’ failure to seek direct review within the time limitations imposed by section 213.

If, however, there had been no violation of section 209-a, but only of section 209-a (subd 1, par [d]), the matter would be very different. Section 209-a (subd 1, par [d]) makes it an improper practice for an employer to refuse to negotiate in good faith with the recognized union of his employees. Section 205 (subd 5, par [d]) specifically states that, when that is the improper practice to be remedied, PERB is limited to an order requiring the parties to bargain. The PERB may not, by express statutory limitation, order back pay or make any other demands on the parties.

It is noteworthy that the majority opinion has conceded that an agency might be held to have exceeded its jurisdiction not only by purporting to act in a matter outside of its subject matter jurisdiction but also by making a remedial order beyond its powers in a matter legitimately before it. Yet it characterizes the PERB order here (absent hypothetically, the violation of § 209-a, subd 1, par [a] in addition to the § 209-a, subd 1, par [d] violation) as merely an "error of law”. I fail to see how that distinction is dispositive of the question before us. Whenever an agency misreads its own statute, the result can be described as an error of law. Perforce, an order which is specifically and expressly forbidden by the statute is an error of law. The crucial question, however, is whether the error is jurisdictional in nature and may therefore be attacked collaterally after the time has lapsed within which direct review must be brought or whether it is not jurisdictional and therefore not reviewable.

There is no need to leave for another day the question of whether we can review a remedial order wholly in excess of the agency’s jurisdiction. That is the question the parties have raised here and we have already addressed and determined it in Matter of Foy v Schechter (1 NY2d 604).

Foy, like the case before us, involved the reclassification of transit workers under civil service provisions. The commission which purported to reclassify the workers had the authority to do so; however, it failed to follow the statutory mandates as to how the reclassification was to be accomplished. The affected employees in turn failed to bring an article 78 proceeding to challenge the commission’s ruling within the time allotted. When, instead, they brought a separate article 78 proceeding in the nature of mandamus to compel the appropriate city official to pay them the back pay to which they were entitled if the reclassification attempt was null and void, we held such a collateral attack permissible, saying (1 NY2d, at pp 611-612):

"The Civil Service Commission’s grading resolution was not avoided on the ground that it was arbitrary—in which event it would stand unless directly attacked in an article 78 proceeding against the commission—but it was held to be null and void on procedural grounds in that it had not been approved by the Mayor or State Civil Service Commission after specific wage scales had been established, in violation of subdivision 2 of section 11 of the Civil Service Law. Having neither force nor effect, the 1938 resolution of the Municipal Commission could be attacked collaterally; it did not need to be vacated; it simply did not operate as a bar against the fixation of the prevailing rate of wage by the Comptroller to be paid to Foy and the other employees who were parties to that proceeding. H' H' íf*
"The distinction is between a Civil Service Commission rule which is made without jurisdiction—void due to omission to follow the statutory procedure, and an attack upon grading made within the power of the commission but by an arbitrary exercise of that power. In the latter event * * * the determination of the commission is binding unless and until it is annulled in an article 78 proceeding brought within four months (Civ. Prac. Act, § 1286) upon the ground that it is arbitrary. * * *
"This principle has been repeatedly enunciated by the New York Courts. [Citations omitted.] It is stated (73 C. J. S., Public Administrative Bodies and Procedure, § 146) as follows (p. 480): 'Notwithstanding the rule against collateral attack, a decision [of an administrative body] may be subject to such attack where it is absolutely void; and, since the jurisdiction of an administrative board or agency consists of the powers granted it by statute, a determination is void and subject to collateral attack where it is made either without statutory power or in excess thereof.’ "(Emphasis added.)

This distinction between a remedy which is arbitrary or not supported by substantial evidence and one which is in excess of the agency’s powers was reiterated recently in Matter of Elwood Investors Co. v Behme (79 Misc 2d 910). There, a town planning board turned down a petitioner’s application for approval of his plat without giving its reasons. Petitioner sought to excuse his failure to bring an action to review (art 78 proceeding) within the 30-day limitation found in section 276 of the Town Law by saying that without reasons it did not know whether review was warranted. Acknowledging that petitioner was entitled to reasons so that there may be something to review, the court nevertheless held the proceeding time-barred on the ground that failure to give such reasons, though arbitrary, was not an excess of the board’s jurisdiction, since the record indicated the presence of facts which could have supported the refusal of the approval and since the board plainly had jurisdiction over the application itself. Moreover, the board had statutory power to issue a refusal. As the court pointed out, "Both the 'arbitrary and capricious’ standard and the 'substantial evidence’ rule * * * relate to justification rather than to power (1 N. Y. Jur., Administrative Law, § 182).” (79 Misc 2d, at p 913; emphasis in original.)

Thus, as we all agree, the question of whether the PERB’s finding of a violation of paragraph (a) or of paragraph (d) of subdivision 1 of section 209-a was based on substantial evidence is foreclosed by the failure to request review within the 30 days provided under section 213. Indeed, we agree that a remedial order which was merely arbitrary would also be immune from review at this point. And the Legislature’s decision to limit review of these questions to 30 days is one within its prerogative to make. However, the Legislature cannot be read here to have foreclosed review of an excess of jurisdiction, whether initial or remedial. Under Foy and the cases cited therein, such an illegal act by an agency is simply a nullity. The status of an effective act is not conferred upon it by legislation which merely limits the time in which it may be reviewed directly. Section 213, like section 276 of the Town Law in the Elwood case, sets a shorter time for direct review than would otherwise be available under article 78. Indeed, it incorporates article 78 explicitly. If, as Foy demonstrates, the provisions of article 78 itself do not impinge upon our ability to label a nullity as such when we see one, then surely section 213, which incorporates it, does not do so.

The holding of Matter of Guardian Life Ins. Co. v Bohlinger (308 NY 174) supports an even stronger analysis. We said there that the Legislature may either forbid or limit review except for those situations where an administrative official has "acted in excess of the grant of authority given him by statute or in disregard of the standard prescribed by the legislature” (at p 183). On that basis, we invalidated a legislative design which we found cut off review very explicitly. Thus I find the opinion of Mr. Justice Cardamone below wholly correct in its reliance upon Bohlinger for the essential principles governing this case.

While some might regard the deliberations in both this and the majority opinion as a tempest in a teapot, given the fact that the PERB had an alternative and perfectly legal basis for its remedial orders for the section 209-a (subd 1, par [a]) violation, I do not believe that it would have been wise for the court to ignore the jurisdictional challenge made by the appellant here. The contention that an administrative agency has inflicted upon parties committed to its subject matter jurisdiction an order which is beyond its power to make is a serious one, even if it proves to be unfounded.

A willingness to entertain the thought that a court could be asked, in an enforcement proceeding brought by the PERB, to confer validity on an otherwise null and void, illegal order, however, is disturbing. Administrative agencies, though unelected and subject to no direct control by those over whom they govern (see City of Amsterdam v Helsby, 37 NY2d 19 [concurring opn], and cases cited therein), are, in today’s world, delegated an enormous range of powers over the lives of our citizens. Limitations placed upon these agencies by the Legislature are guidelines enacted for the purpose of guaranteeing that the delegated powers are exercised appropriately. While, for procedural reasons of fairness and stability, time limitations may be placed upon review of some forms of agency error, the suggestion that an excess of jurisdiction may be turned into gold by such procedural protections is an alchemy with which I cannot agree.

Since, as noted, the order issued by the PERB here was in fact fully authorized, I concur in the affirmance of the order of the Appellate Division.

Chief Judge Breitel and Judges Jasen and Cooke concur with Judge Jones; Judges Gabrielli and Wachtler concur in result on the opinion by Mr. Justice Richard J. Cardamons at the Appellate Division (46 AD2d 509); Judge Fuchsberg concurs in result in a separate opinion.

Order affirmed, with costs.  