Whether N.Y. Educ.Law § 1950(4)(d) authorizes a school district to subcontract its printing services to a Broome-Tioga Board of Cooperative Educational Services ("BOCES") without having to enter into collective bargaining with their respective teacher's unions.

Yes. Under Education Law § 1950(4)(d)(1) the Commissioner of Education may approve printing as a service to be offered on a cooperative basis by a BOCES, and the decision to do so by a school district is exempt from collective bargaining.

In September of 1995, with the approval of the Commissioner of Education, the Vestal School District subcontracted its printing services to the BOCES. The services were transferred to a single employee, who then performed the printing duties for two districts instead of one. Upon transfer of the new duties, the employee became a member of the BOCES Support Services Association, a bargaining unit which negotiated the terms and conditions of his employment. Because the printing services were no longer performed by a Vestal employee, the Vestal Employees Association filed an improper practice charge with the Public Employment Relations Board (PERB) in New York.

The Administrative Law Judge ("ALJ") held that printing services were not exempt from mandatory collective bargaining under N.Y. Educ. Law § 1950(4)(d) and that the Vestal School District committed an improper practice by unilaterally subcontracting printing services that were exclusively held by a bargaining unit employee. The ALJ also determined that printing services were not covered by N.Y. Educ. Law § 1950(4)(d). The PERB reversed on appeal, determining that § 1950 (4)(d) applied to contracts for shared noninstructional services and that the Commissioner of Education's approval of the contract classified printing as "other services" under § 1950(4)(d)(1). Although the PERB's decision was upheld by in the Supreme Court after the Employees Association filed a N.Y.C.P.L.R. article 78 proceeding, the Appellate Division reversed, annulling PERB's determination and remitting the matter for further proceedings. The Appellate Division concluded the scope of the Commissioner's authority to approve cooperative services contracts could not overcome the mandate for public sector employment collective bargaining under the Taylor Law. The Court of Appeals reversed and dismissed the Employees Association's petition.

The Court first determined that printing services fell within the scope of N.Y. Educ.Law § 1950(4)(d)(1), which gives BOCES districts the authority to provide certain services on a cooperative basis. Examining the language of (4)(d)(1), the Court found that the Legislature did not intend to limit services that could be shared by school districts to those enumerated in the statute. Rather, (4)(d)(1) expressly delegated to the Commissioner of Education the responsibility to identify and approve, aside from those enumerated, "other services" that promote the interests that the BOCES statute serves. The underlying purpose of BOCES is to provide school districts with services that they could not individually afford and the printing and reproducing of educational material is a service that falls within that purpose. Furthermore, though the Legislature has in the past circumscribed the Commissioner's ability to approve shared services by listing certain activities, printing was not one of those activities specifically listed.

As it did in In Matter of Webster Central School District v. Public Empl. Relations Bd. of State of N.Y., the Court then examined the statutory scheme of Education Law § 1950 to determine whether collective bargaining was mandatory when a school district sought to subcontract services. Relying heavily on its decision in Webster, the Court found again that although the BOCES statute neither mandates nor prohibites collective bargaining, the incorporation of N.Y. Educ. Law § 3014-a job protection provisions into § 1950(4)(bb) manifested an intention on the part of the Legislature to withdraw decisions to contract for BOCES programs from the mandatory negotiating process. Furthermore, through recent amendment to § 3014-a, the Legislature specifically noted that a program takeover by BOCES pursuant to § 3014-a is a transfer pursuant to N.Y. Civ. Serv. Law § 70. The protections that are provided by N.Y. Civ. Serv. Law § 70 are therefore afforded in the statutory scheme surrounding a program takeover by BOCES. Since a program takeover by BOCES falls under N.Y. Civ. Serv. Law § 70, it is implied that any action taken by BOCES under N.Y. Educ. Law § 1950 will not be subject to collective bargaining.