Civil Service Employees Ass'n v. Milowe ( 1979 )

Mahoney, P. J. (concurring in part and dissenting in part).

Although I agree with my colleagues that the judgment in Proceeding No. 1 should be affirmed, I disagree with them that in Proceeding No. 2 a remittal to PERB is required "for further proceedings not inconsistent herewith”, presumably, for PERB to employ the methodology proposed by the CSEA to detect if forgeries permeated the showing of interest by PEE to such a degree that the election result should be voided. Such a result, in my view, would usurp the significant role legislatively delegated to PERB (Civil Service Law, § 205) to resolve disputes concerning the representative status of employee organizations, to establish procedures for the prevention of improper employer and employee practices and to hold such hearings and make such inquiries as it deems necessary for it properly to carry out its functions and powers (Civil Service Law, § 205, subd 5, pars [b], [d], [j]). In conducting the postelection hearing PERB afforded CSEA an opportunity to come forward with such proof as it had bearing on its allegation of substantial forgery. CSEA responded by calling as its witness Ned Hopkins, a former employee of PEE. Mr. Hopkins testified that one Ms. Fellner had told him that John Geagan, a codirector of the PEE campaign, had told her that Diane Dougherty, the SEIU employee in charge of compiling the showing of interest for PEE, was responsible for the forgeries. Ms. Fellner denied this and testified she had mentioned only that several thousand signatures from nonunit employees had been submitted in the showing of interest.^* She also testified that she had not forged the signatures on any cards or knew of anyone who had done so. Both Geagan and Dougherty denied having any knowledge of forgeries and insisted they had not forged any signatures. The director credited the compounded hearsay testimony of Hopkins over that of Fellner, but found the testimony of Geagan and Dougherty to be convincing. Clearly, these factual findings based upon credibility, a function solely within the competence of the fact finder, fall far short of proving forgery. If the matter had concluded there and a proceeding was commenced to annul a determination confirming the election results, I think it only fair to conclude that a confirmance based on substantial evidence to support the determination would follow. However, the director found "sufficient objective and circumstantial evidence to warrant going forward” and he did so (4 NYCRR 201.4, 201.9) by engaging a handwriting expert. The expert used exemplars of Dougherty, Geagan, Kraemer and Canny, all directly involved in obtaining the showing of interest cards of unit members, and compared the signatures thereon with approximately 1,000 showing of interest cards of unit members which contained one or more characters which appeared in the known writings of the four suspects and found no evidence of common authorship. Now, CSEA insists, and the majority agrees, there is a better method of detecting forgeries than that employed by the director and the failure to use that method was an arbitrary and capricious act requiring annulment. I cannot agree.

Neither statutory law (Civil Service Law, § 200 et seq.), nor the State Constitution commands a hearing for the resolution of contested election results following a challenge by one representative unit against another. Paragraph (j) of subdivision 5 of section 205 of the Civil Service Law authorizes PERB "[t]o hold such hearings and make such inquiries as it deems necessary for it properly to carry out its functions and powers.” (Emphasis added.) However, once PERB exercises this discretionary power and, pursuant to its own internal regulations, delegates the authority to hear, inquire and determine to its director, it must proceed to develop a hearing record that lends itself to judicial scrutiny. Once the record is developed and the administrative determination challenged in court, the standard for judicial review is whether that result is supported by substantial evidence (cf. Matter of Older v Board of Educ., 27 NY2d 333, 337). It follows, therefore, that this court need only review PERB’s dismissal of allegations of forgery for substantial evidence supporting the board’s determination (300 Gramatan Ave. Assoc, v State Div. of Human Rights, 45 NY2d 176, 181-182). Issues of credibility, as here, are for the administrative agency to decide and where there is substantial evidence, again as here, to support either of two opposing conclusions, the board’s determination must be upheld (Matter of Collins v Codd, 38 NY2d 269; Matter of Manhattan Scene v State Liq. Auth., 58 AD2d 1010).

However, since the majority opinion does not state that the challenged result is not supported by substantial evidence, but, rather, that the selection of the method for testing forgeries was an arbitrary and capricious act lacking a reasonable basis, it is necessary to examine that act to determine if it drained the board’s conclusion of rationality to an extent requiring annulment (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of 125 Bar Corp. v State Liq. Auth., 24 NY2d 174; Sag Harbor Union Free School Dist. v Helsby, 54 AD2d 391). There was no direct proof of forgery, only compounded hearsay. Where evidence of forgery is entirely hearsay, as here, a finding of guilt is not based on substantial evidence (Matter of Riverton Funeral Home v Whalen, 63 AD2d 887). Next, the director did investigate the authenticity of the signatures using the services of an expert whose credentials are not challenged. Where alternate methods of arriving at a common goal are proposed, failure of an administrative agency to select what most would consider to be the better method does not render that determination arbitrary as a matter of law. Where an administrator adopts one of several conflicting opinions, it is not the province of the court to substitute its judgment unless the agency’s determination is unreasonable or without a basis in law (Matter of Denise R. v Lavine, 39 NY2d 279, 283; cf. Matter of Talamo v Murphy, 38 NY2d 637; Matter of Wilcox v Stern, 18 NY2d 195, 203).

Accordingly, in Proceeding No. 2, PERB’s determination should be confirmed.

Greenblott, Sweeney and Staley, Jr., JJ., concur with Kane, J.; Mahoney, P. J., concurs in part and dissents in part in an opinion.

In Proceeding No. 1, judgment affirmed, without costs.

In Proceeding No. 2, determination annulled, without costs, and matter remitted to the Public Employment Relations Board for further proceedings not inconsistent herewith and the stay of certification to be continued.

* Actually, there were 5,000 nonunit signatures, but it is not contended that the number of unit signatures could not comprise the requisite 30% showing of interest.