New York State Public Employment Relations Board v. Board of Education

Fuchsberg, J. (concurring).

We all agree that the ultimate disposition of this case in the court below ought to be affirmed. Under the statutory design pursuant to which the PERB acts, upon its finding that the employer has interfered with the employees’ exercise of their statutory rights (§ 209-a, subd 1, par [a]), it was fully authorized by section 205 (subd 5, par [d]) to require a return to the status quo, complete with back pay. PERB made such a finding here, and the question of whether it had substantial evidence for its determination or not is indeed foreclosed by the parties’ failure…