Majority
Plaintiffs, State employees, on their own behalf and those similarly situated, and the Civil Service Employees Association, Inc., in a submitted controversy upon an agreed statement of facts, sought a declaratory judgment and injunction against the Public Employment Belations Board. Pending before the board were applications to designate the positions of the .employees as “managerial” or “ confidential ”.
The -order, of the Appellate Division should be .affirmed. The exclusion of managerial -personnel from collective bargaining rights has long been permitted by statute and decisional law affecting private employment. The need to have a responsible cadre of management personnel to formulate policy and to handle labor relations is equally applicable to the State in its capacity as an einployer. The statutory criteria which govern designation of managerial personnel are sufficiently clear to withstand constitutional attack.
In 1971, the Civil Service Law was amended to provide for designation of certain public employees as ‘ * managerial ’ ’ and “confidential” employees who may not be members of or hold office in any organization which represents, or seeks to represent public employees (L. 1971, ch. 503, §§ 4, 16, ch. 504, § 1). Section 201 (subd. 7) of the Civil Service Law, as amended, provides: “ (a) The term ‘ public employee’ means any person holding a position by appointment or employment in the service of a public employer, except that such term shall not include * * * persons who may reasonably be designated from time to time as managerial or confidential upon application of the public employer * * # Employees may be designated as managerial only if they are persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer fto assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment. Employees may be designated as confidential only if they are persons who assist and act in a confidential capacity to managerial employees described in clause
Plaintiffs Shelofsky, Nickerson, and Wagner are State employees and members of the Civil Service Employees Association, a certified representative of State employees in the Executive Branch. Shelofsky is an Unemployment Insurance Accounts Assistant Supervisor in the Department of Labor and has been a member of the association since 1945. He maintains convertible term life insurance, and. accident and health insurance through the association. Wagner is a Budget Analyst in the Department of Audit and Control and has been a member of the association since 1965. He is president of the Capital District Conference of the association. Nickerson is a Senior Stenographer in the Department of Social Services and is also an officer of the association. She maintains $5,500 of convertible term life insurance through the association.
In September, 1971, pursuant to section 201 (subd. 7) defendant Abe Lavine, the Director of Employee Relations, requested the designation of 7,600 employees, including plaintiffs Shelofi* sky, Nickerson, and Wagner, as “managerial” or “confidential”. In January, 1972, the board issued preliminary designations of managerial and confidential employees, giving interested parties 30 days to file objections. The board scheduled hearings to resolve factual disputes during the pendency of this litigation with final decisions being held in abeyance.
The exclusion of supervisory personnel from collective bargaining rights enjoyed by employees is not a new concept (see Rains, Collective Bargaining in the Public Sector and the Need for Exclusion of Supervisory Personnel, 23 Lab. L. J. 275 ). In 1947, the Taft-Hartley Act (Labor Management Relations Act) amended the National Labor Relations Act in part to exclude “supervisors” from collective bargaining rights enjoyed by private employees generally (District 2, Mar. Engrs. Beneficial Assn. v. New York Shipping Assn., 22 N Y
In the Budd case, the court also rejected the contention that the definition of the term “supervisor” was unconstitutionally vague (169 F. 2d, at p. 579). In the Federal statute, a supervisor is defined as an “individual having authority, in the interest of ]he employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees* or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not merely -of a routine or clerical nature, but requires the use pf independent judgment ” (U. S. Code, tit. 29, § 152, subd. [11]). The language of section 201 (subd. 7) of the Civil Service Law, quoted above, is similar and is sufficiently detailed to withstand attack for vagueness.
Plaintiffs’ contentions that insurance contract rights would be impaired are not persuasive. Those contracts were entered in contemplation that the State had continuing power to legislate on matters affecting public employees (see 9 N. Y. Jur., Constitutional Law, § 270). Participation in the insurance plans was made contingent on continued association member
Plaintiffs also contend that the statute would impair the association’s previous collective bargaining agreement with the State. The association’s contract with the State expired in March, 1972 and subdivision 7 of section 201 expressly postpones redesignation of affected employees until after the contract expires. Hence, plaintiffs’ rights under the collective agreement will not be impaired.
In sum, there has been no showing that exclusion of management personnel from association membership is an unreasonable limitation on State employees. Withholding the benefits of collective bargaining from management personnel has long been approved in private employment. Its carry-over into public employment is a reasonable means of promoting harmonious labor relations.
As said in Matter of Di Maggio v. Brown ( 19 N Y 2d 283 , 287): “ There is no constitutional provision which vests one with the right to governmental employment, or which bars the imposition of reasonable and necessary limitations and conditions on such employment” (see, also, City of New York v. De Lury, 23 N Y 2d 175 , app. dsmd. 394 U. S. 455 , upholding the constitutionality of the Taylor Law ban on strikes by public employees).
Thus, the scheme for designating managerial and executive employees and segregating them from rank-and-file collective bargaining arrangements, has ample precedent and is based on a realistic analysis of labor relations. The need for the distinction is perhaps greater in public employment where there are no vested “ employers ” as owners or a management associated with the employing owners. To be sure, problems arise in private employment, and still greater problems in public employment, in distinguishing managerial employees from others. These problems undoubtedly will give rise to recurring disputes in particular instances. But it is to handle such disputes that the procedure, including hearings, may be invoked as has been done in these public employment cases. ' The resolution of particular disputes may require eventual review, but
Accordingly,', the order of the Appellate Division should he affirmed, without costs.
Chief Judge Fuld and Judges Burke, Jasen, Gabrielli, Jones and Wachtler concur.
Order affirmed.
Cases cited
- Baird v. State Bar of Arizona 401 U. S. 1 p. 55, p. 57
- Tischler v. Board of Education 37 A D 2d 261 p. 55, p. 57
- Keyishian v. Board of Regents 385 U. S. 589 p. 55, p. 56
- Pickering v. Board of Education of Township High School District 205 391 U. S. 563 p. 55
- Puentes v. Board of Education of Union Free School District No. 21 24 N Y 2d 996 p. 55
- Board of Education v. Helsby 37 A D 2d 493 p. 55, p. 57
- National Ass'n for the Advancement of Colored People v. Alabama ex rel. Patterson 357 U. S. 449 p. 55
- Schneider v. Smith 390 U. S. 17 p. 55
- Shelton v. Tucker 364 U. S. 479 p. 55
- F. A. Straus & Co. v. Canadian Pacific Railway Co. 254 N. Y. 407 p. 55
- Lott v. Wykoof 2 N. Y. 355 at 357 p. 55
- Louisiana v. Pilsbury 105 U. S.) 278 p. 56
- Carondelet Canal & Navigation Co. v. Louisiana 233 U. S. 362 p. 56
- Home Building & Loan Ass'n v. Blaisdell 290 U. S. 398 p. 56, p. 57
- Williams v. Rhodes 393 U. S. 23 p. 56
- Buchanan v. Warley 245 U. S. 60 p. 56
- Sterling v. Constantin 287 U. S. 378 p. 56
- Defiance Milk Products Co. v. Du Mond 205 Misc. 813 p. 56
- Defiance Milk Products Co. v. Du Mond 309 N. Y. 537 p. 56
- Vaccaro v. Board of Education 54 Misc 2d 206 p. 56
- Greene v. McElroy 360 U. S. 474 p. 56
- Ottinger v. State Civil Service Commission 240 N. Y. 435 p. 56
- Scahill v. Drzewucki 269 N. Y. 343 p. 56
- Friedman v. Finegan 268 N. Y. 93 p. 56
- Carow v. Board of Education 272 N. Y. 341 p. 56
- Palmer v. Board of Education 276 N. Y. 222 p. 56
- Civil Service Employees Ass'n v. Helsby 31 A D 2d 325 p. 56
- Civil Service Employees Ass'n v. Helsby 24 N Y 2d 993 p. 56
- Connally v. General Construction Co. 269 U. S. 385 p. 56
- Olp v. Town of Brighton 173 Misc. 1079 p. 56
- Bauch v. City of New York 21 N Y 2d 599 p. 57
- Kraemer v. Helsby 35 A D 2d 297 p. 57
- Rogoff v. Anderson 34 A D 2d 154 p. 57
- Rogoff v. Anderson 28 N Y 2d 880 p. 57
- Konigsberg v. State Bar 366 U. S. 36 p. 57
- Cotting v. Kansas City Stock Yards Co. 183 U. S. 79 p. 57
- Wasmuth v. Allen 43 Misc 2d 14 at 21 p. 57
- Wasmuth v. Allen 14 N Y 2d 391 p. 57
- Park Avenue Clinical Hospital v. Kramer 48 Misc 2d 826 p. 57
- Park Avenue Clinical Hospital v. Kramer 19 N Y 2d 958 p. 57
- Lindsley v. Natural Carbonic Gas Co. 220 U. S. 61 p. 57
- Treigle v. Acme Homestead Ass'n 297 U. S. 189 p. 57
- Veix v. Sixth Ward Building & Loan Ass'n 310 U. S. 32 p. 57
- Thornton v. Duffy 254 U. S. 361 p. 57
- Londoner v. City of Denver 210 U. S. 373 p. 57
- Bi-Metallic Investment Co. v. State Board of Equalization 239 U. S. 441 p. 57
- Goldsmith v. United States Board of Tax Appeals 270 U. S. 117 p. 57
- Perpente v. Moss 293 N. Y. 325 p. 57
- Bay Towing, Inc. v. Broderick 49 Misc 2d 657 p. 57
- Price v. Atchison, Topeka & Santa Fe Railroad 348 U. S. 839 p. 60
- Di Maggio v. Brown 19 N Y 2d 283 at 287 p. 61
- City of New York v. De Lury 23 N Y 2d 175 p. 61
- Hotel & Restaurant Employees Union Local No. 556 v. Emery 394 U. S. 455 p. 61