
    In the Matter of City School District of City of Elmira, Respondent, v New York State Public Employment Relations Board et al., Appellants.
    Argued September 12, 1989;
    decided October 24, 1989
    
      POINTS OF COUNSEL
    
      Ivor R. Moskowitz, Bernard F. Ashe and Rocco A. Solimando for Elmira Teachers Association, appellant.
    I. It is well settled that under the Taylor Law PERB has exclusive, nondelegable jurisdiction to consider and determine improper practice charges. (Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of City of Albany v Helsby, 29 NY2d 433; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Employment Relations Bd., 48 NY2d 398; Matter of Public Employees Fedn. v Public Employment Relations Bd., 93 AD2d 910; Matter of Syracuse Hancock Professional Firefighters Assn. v Newman, 110 AD2d 256.) II. PERB’s application of the Taylor Law to Education Law § 3602 (27) was rational and in accord with its statutory authority. (Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Employment Relations Bd., 48 NY2d 398; Matter of Howard v Wyman, 28 NY2d 434.) III. The arguments raised by the district to reverse PERB’s decision and order are misplaced. (Matter of Young v Board of Educ., 35 NY2d 31; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743; Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898; Matter of Board of Educ. v Merrick Faculty Assn., 65 AD2d 136; Matter of Union Free School Dist. v Nyquist, 38 NY2d 137; Matter of Auburn Police Local 195 v Helsby, 62 AD2d 12, 46 NY2d 1034.)
    
      John Crotty, Martin L. Barr and Jerome Thier for New York State Public Employment Relations Board, appellant.
    I. PERB properly construed Education Law § 3602 (27) (a). (Matter of Auburn Police Local 195 v Helsby, 91 MisC 2d 909, 62 AD2d 12, 46 NY2d 1034; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743; Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Matter of Union Free School Dist. v Nyquist, 38 NY2d 137; Matter of Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Board of Educ. v Areman, 41 NY2d 527.) II. PERB’s determination is a reasonable construction of the Taylor Law. (Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Employment Relations Bd., 48 NY2d 398; Matter of City of Albany v Helsby, 48 AD2d 998, 38 NY2d 778; Matter of Subway-Surface Supervisors Assn. v New York City Tr. Auth., 44 NY2d 101.) III. PERB’s counterclaim for enforcement should be granted. (Matter of City of Albany v Helsby, 29 NY2d 433; Matter of New York State Pub. Employment Relations Bd. v Board of Educ., 39 NY2d 86; Matter of Saratoga Springs City School Dist. [New York State Pub. Employment Relations Bd.], 68 AD2d 202, 47 NY2d 711; Matter of County of Onondaga v New York State Pub. Employment Relations Bd., 77 AD2d 783.)
    
      Edward B. Hoffman and Cynthia S. Hutchinson for respondent.
    I. The plain and clear language of section 3602 of the Education Law removes the application for excellence in teaching appropriation from collective bargaining. (Matter of Town of Mamaroneck PBA v New York State Pub. Employment Relations Bd., 55 NY2d 772; Schneider v Arnbach, 135 AD2d 284; Wilson Co. v United States Postal Serv., 580 F2d 33.) II. Public policy requires that a school district have sole authority to determine whether to apply for State aid. (Board of Educ. v Areman, 41 NY2d 527; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Bennett v City School Dist. of New Rochelle, 114 AD2d 58; Matter of Board of Educ. v Yonkers Fedn. of Teachers, 49 AD2d 753; Board of Educ. v Nyquist, 83 AD2d 217, 57 NY2d 27; Matter of Harbolic v Berger, 43 NY2d 102.) III. Respondent should not be required to renegotiate salaries which already have been contractually agreed upon.
    
      Norman H. Gross and Henry F. Sobota for the New York State School Boards Association, amicus curiae.
    
    I. Civil Service Law § 201 (12) and § 204-a preclude PERB from finding that a legislative body’s decision to apply or not apply for intergovernmental financial aid is a mandatory subject of negotiations. II. In enacting the Excellence in Teaching (EIT) law, the Legislature intended to preserve the school board’s legislative prerogative to apply or not apply for State aid. (Matter of Town of Mamaroneck PBA v New York State Pub. Employment Relations Bd., 66 NY2d 722; Matter of John P. v Whalen, 54 NY2d 89; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Matter of Auburn Police Local 195 v Helsby, 62 AD2d 12, 46 NY2d 1034.) III. PERB’s decision is affected by an error of law because it is based upon the inaccurate assumption that only members of the teachers’ bargaining unit may be eligible for EIT aid. (Matter of Schneider v Ambach, 135 AD2d 284.)
   OPINION OF THE COURT

Hancock, Jr., J.

Under Education Law § 3602 (27), a school district may, upon application, become eligible to receive an apportionment of Excellence in Teaching (EIT) aid, to be used solely to improve teachers’ salaries. The question in this appeal is whether a school district may be compelled pursuant to the Taylor Law (Civil Service Law art 14) to bargain with the teachers’ union over its decision whether to make such application. Stated another way, is a school district’s decision whether to apply for EIT funds a proper subject for mandatory bargaining so as to make the refusal to bargain the proper basis for an improper practice charge under Civil Service Law § 209-a (1) (d)? We agree with the Appellate Division that the answer to this question is "No”. Accordingly, there should be an affirmance.

I

In April 1986, the Legislature enacted the Excellence in Teaching program as part of the aid to localities budget bill, thereby providing State funds to supplement the salaries of eligible employees of local school districts (Education Law § 1950 [15] [a]; § 3602 [27]; L 1986, ch 53, §§ 20, 49). Under regulations adopted by the Commissioner to implement the EIT program, as directed by the Legislature (§ 3602 [27] [f]), a school district may become eligible for EIT funds upon making an application through its board of education (8 NYCRR 175.35). The regulations specify that any EIT salary increases must be added to the teachers’ regular salaries for the purpose of computing their fringe benefits (8 NYCRR 175.35 [e] [4]). But the regulations expressly forbid any expenditure of the EIT moneys for these additional fringe costs (8 NYCRR 175.35 [e] [5]), thus making it necessary for the board to fund the additional fringe costs from other sources.

On September 9, 1986, the Board of Education of petitioner Elmira City School District (the district) voted not to apply for EIT funds. It is undisputed that the Board’s decision rested on the fact that acceptance of EIT funds would result in the district having to pay, over a two-year period, approximately $100,000 for additional Social Security taxes, retirement system assessment and other attendant "fringe benefits”, which would be in addition to any benefits provided for in the parties’ existing collective bargaining agreement effective July 1, 1985 through June 30, 1990. On September 10, respondent teachers’ association (the association) demanded that the district negotiate its decision. On September 17, the district refused and the association filed an improper practice charge with respondent Public Employment Relations Board (PERB) based upon the refusal.

After the parties waived a hearing before PERB, the matter was submitted on a stipulated record to an Administrative Law Judge who held that the district had violated Civil Service Law § 209-a (1) (d) by refusing to negotiate. PERB affirmed the ALJ’s decision and ordered that the district "forthwith negotiate [its decision] in good faith” whether to apply for EIT funds for the 1986-1987 school year, and for subsequent school - years, as well, upon the association’s demand.

The district commenced this CPLR article 78 proceeding seeking to annul PERB’S determination. Upon transfer from Supreme Court pursuant to CPLR 7804 (g), the Appellate Division, with two Justices dissenting, annulled the determination and granted the petition. Both the majority and dissent noted that Education Law § 3602 (27) expressly provides that a school district must separately negotiate decisions concerning the distribution of EIT funds, but makes no provision concerning a school district’s duty to negotiate a decision to apply for EIT funds. From the omission of such direction in the statute, the majority concluded that a duty to negotiate the application decision "should not [be] read into” Education Law § 3602 (27) because "when the Legislature was considering the extent to which negotiations over EIT funds would be required, it could have extended the duty to negotiate to the application decision if it had so intended” (144 AD2d 35, 39). The dissenters took the position that PERB’s determination that the application decision was subject to mandatory bargaining was rational because such a decision affects the terms and conditions of employment. Finding nothing in the statute directly prohibiting mandatory bargaining, the dissenters concluded that the determination should be upheld. We agree with the Appellate Division majority that the EIT application decision is not a subject of mandatory bargaining.

II

The question before us is this: did the Legislature intend that a district’s decision over whether to apply for EIT funds should be subject to mandatory bargaining? We hold that it did not. From our analysis of Education Law § 3602 (27), we conclude that a school district’s decision on whether to make such application is one which the Legislature intended should be left to the school board’s discretion. Nothing in subdivision (27) purports to make it mandatory for a school district to apply for EIT funds. On the contrary, subdivision (27) provides that "upon application a school district shall be eligible for an excellence in teaching apportionment” (emphasis added).

That the Legislature intended to establish a program where the application decision would not be subject to mandatory negotiation is reflected in the statutorily required implementing regulations (8 NYCRR 175.35; see, Education Law § 3602 [27] [f]) which specifically provide that the application is to be made by the board of education (see, 8 NYCRR 175.35 [b]), the legislative body, whose approval would be required to make any agreement binding (see, Civil Service Law § 201 [12]; § 204-a [1]; see generally, 8 NYCRR 175.35 [c]).

PERB and the association, however, purport to find in Education Law § 3602 (27) a legislative intent that collective negotiations be required over the EIT application decision as well as the decision on distribution of EIT funds which have been sought and obtained. They rely on the last sentence in subdivision 27 (a) which states: "In school districts where the teachers are represented by certified or recognized employee organizations, all salary increases funded pursuant to this subdivision shall be determined by separate collective negotiations conducted pursuant to the provisions and procedures of article fourteen of the civil service law, notwithstanding the existence of a negotiated agreement between a school district and a certified or recognized employee organization.” (Emphasis added.) The language of this provision, however, does not support their position.

The evident purpose of this provision in paragraph (a) is not only to mandate collective negotiations over the distribution of EIT funds, but to remove any impediment to such negotiations which might otherwise result where, as here, an ongoing collective bargaining agreement between the district and the union exists. By providing that the EIT negotiations be separate, the provision obviates any possible conflict between the EIT salary distribution negotiations and an existing collective bargaining agreement. Moreover, because the statute specifically provides for collective negotiations only over EIT salary distribution decisions, the inference may be drawn from the failure to require negotiations over EIT application decisions that the Legislature intended that such negotiations not be required (see generally, McKinney’s Cons Laws of NY, Book 1, Statutes § 240).

To adopt the position urged by PERB and the association— that because the EIT program implicates teachers’ salaries application decisions are necessarily a subject for bargaining— would frustrate the intent of this statute and its implementing regulations that the board of education be the decision-making body and that negotiations over its application decisions not be mandatory. We do not suggest that the district may not voluntarily bargain over EIT funding, subject, of course, to the board’s right to disapprove any agreement reached from the process (see, Civil Service Law § 201 [12]; § 204-a [1]). We simply hold that the legislative intent is that the district not be compelled to bargain over the board’s application decision. PERB’s contrary construction of Education Law § 3602 (27) does not support a different result. Where " 'the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent’, [PERB’s] interpretations need not be accorded * * * deference” (Matter of Town of Mamaroneck PBA v New York State Pub. Employment Relations Bd., 66 NY2d 722, 724 [quoting Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459]).

Accordingly, because the decision whether to apply for EIT funds cannot be the subject of mandatory bargaining, the Appellate Division judgment should be affirmed, with costs.

Bellacosa, J.

(dissenting). I would reverse the order of the Appellate Division essentially for the reasons stated in the dissent by Justice Howard A. Levine and would thus confirm the determination by PERB that the Elmira City School District’s application for Excellence in Teaching Apportionment Program funds under Education Law § 3602 (27) is a mandatory subject of collective bargaining.

The court is unanimous that the Taylor Law imposes a broad obligation upon public employers to bargain with employees over the terms and conditions of their employment. The majority, as I understand it, also agrees that once a school district applies for Excellence in Teaching funds, the distribution is a term and condition of teachers’ employment —salaries. Our difference of view relates to the threshold decision to apply for Excellence in Teaching funds at all, the majority concluding that it is not subject to collective bargaining, because the Legislature has manifested the requisite "plain and clear” intention to exclude this decision from the ambit of the Taylor Law (Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743, 744).

Our view is that the purpose of the Excellence in Teaching legislation is to improve the quality of teaching and education throughout the State by affecting the terms and conditions of teachers’ employment with the financial inducement of additional compensation. Inasmuch as this compensation matter directly and inherently affects the terms and conditions of employment, a subject of mandatory collective bargaining (Civil Service Law § 208 [2]), it is unavailing that the pertinent Excellence in Teaching statute does not itself explicitly mandate collective bargaining for the "application” phase of all school boards participating in and acquiring the State’s grants of money. The statute, after all, does not explicitly exclude mandatory collective bargaining as to the "application” phase. Indeed, it expressly mandates separate collective bargaining as to the "distribution” among teachers of the funds so received. Thus, the interpretation reposing in the school boards the unilateral power to apply for Excellence in Teaching funds saps of all its juice the mandatory collective bargaining enactment on "distribution” of such funds to qualified teachers. Depriving a statute of its meaning in this way — where the exclusion from the operation of the Taylor Law is not "plain and clear” (Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743, supra) — is not sound statutory construction and would frustrate the central legislative intent of the Excellence in Teaching program. "[A] statutory construction which results 'in the nullification of one part [of the statute] by another, is not permissible’ ” (People v Kates, 77 AD2d 417, 418, affd 53 NY2d 591, citing Matter of Albano v Kirby, 36 NY2d 526, 530).

Appellant teachers’ association invites the court to take judicial notice of an uncontradicted public statistical compilation that 683 out of 698 (98%) of the school boards throughout the State are now participating in the Excellence in Teaching program. Thus, the Legislature may wish to consider making explicit the mandatory and, thus, uniform, application and participation in this significant public policy program — if that was its intention.

Accordingly, I respectfully dissent and vote to reverse.

Chief Judge Wachtler and Judges Simons, Alexander and Titone concur with Judge Hancock, Jr.; Judge Bellacosa dissents and votes to reverse in a separate opinion in which Judge Kaye concurs.

Judgment affirmed, with costs. 
      
      . Indeed, any expenditure of an EIT grant-in-aid made in contravention of this mandate may be disallowed and deducted from the district’s next State aid payment (8 NYCRR 175.35 [e] [5]).
     
      
      . It is undisputed that EIT funds which have been obtained for increased teachers’ salaries under Education Law § 3602 (27) must be the subject of collective bargaining. Indeed, the statute specifically provides that "all salary increases funded pursuant to [subd 27] shall be determined by separate collective negotiations conducted pursuant to the provisions and procedures of article fourteen of the civil service law” (Education Law § 3602 [27]).
     
      
      . Indeed, both the ALJ and PERB, in affirming the AU’s decision, acknowledged that the EIT "legislation vests districts with discretion to apply for the funds” (ALJ decision, at 9; see, PERB decision, at 7-8). Neither the association nor PERB contends that a school district could be compelled either by an arbitrator or by a court to make an application for EIT funding under this statute.
     
      
      . Civil Service Law § 201 (11) provides that "the term 'legislative body of the government,’ in the case of school districts, means the board of education, board of trustees or sole trustee, as the case may be.”
     