Buffalo United Charter School v. New York State Public Employment Relations Board

Appeal and cross appeals from a judgment (denominated order and judgment) of the Supreme Court, Erie County (John M. Curran, J.), entered July 11, 2012 in a proceeding pursuant to CPLR article 78. The judgment denied the petition in part.

It is hereby ordered that the case is held and the decision is reserved in accordance with the following memorandum: In this proceeding pursuant to CPLR article 78, petitioners appeal, and respondents New York State Public Employment Relations Board (PERB) and Council of School Supervisors and Administrators, Local 1, AFSA, cross-appeal from a judgment determining, inter alia, that PERB properly exercised jurisdiction over two collective bargaining matters. We agree with petitioners, however, that Supreme Court erred in determining that PERB properly exercised jurisdiction over those matters. Inasmuch as *1438the two collective bargaining matters “arguably” fall within the scope of the National Labor Relations Act (NLRA) (San Diego Building Trades Council v Garmon, 359 US 236, 245 [1959]; see e.g. Chicago Mathematics & Science Academy Charter Sch., Inc., 359 NLRB No. 41 [2012]; Charter Sch. Admin. Servs. [Michigan Educ. Assn./NEA], 353 NLRB No. 35 [2008]), the National Labor Relations Board (NLRB) has primary jurisdiction “to determine in the first instance” whether its jurisdiction preempts PERB’s jurisdiction (Metropolitan Life Ins. Co. v Massachusetts, 471 US 724, 748 [1985]). Under the circumstances of this case, and in the interest of judicial economy, we hold the case pending a determination of the NLRB whether the NLRA applies to the collective bargaining matters herein at issue and thus preempts PERB’s jurisdiction (see generally New York Inst. for Educ. of Blind v United Fedn. of Teachers’ Comm. for N.Y. Inst. for Educ. of Blind, 83 AD2d 390, 397-398 [1981], affd 57 NY2d 982 [1982]). Present — Smith, J.P., Fahey, Carni, Sconiers and Whalen, JJ.