Distinguished
Distinguished by County of Nassau v. State of New York Public Employment Relations Board, 103 A.D.2d 274 (1984)
Finally, we note that Matter of City of Albany v Public Employment Relations Bd. (57 AD2d 374, supra), is readily distinguishable from the case at bar.
The opinion
Herlihy, J. (concurring).
I concur with the votes of Mr. Justice Main and Mr. Justice Mahoney for confirmation.
In this case I find that there is overwhelming evidence that the employee was singled out for punishment solely because of his union activities and accordingly, PERB had no realistic alternative to secure enforcement of the Taylor Law provisions except by ordering reinstatement and reimbursement of lost wages. In any event, in this particular case the remedy imposed by PERB is not in excess of its powers and is reasonably designed to secure the rights of the union member.
It should be noted, however, that not every case of punishment imposed as a result of "antiunion animus” would justify a remedy which would preclude the public employer from reevaluating the charges against the petitioner, and this would be so as to facts which indicate the employee might be a source of danger to fellow employees and/or personal property of the public employer. There is no reason why PERB could not in an appropriate case simply set aside the punishment imposed and direct reconsideration by the employer or otherwise fashion relief so as not to impede a future evaluation of the employee, giving consideration to all of his conduct (cf. Sag Harbor Union Free School Dist. v Helsby, 54 AD2d 391 , app dsmd March 23, 1977).
The court has the power to intervene if the finding of PERB or the punishment imposed is considered arbitrary and capricious.
Since the present case establishes that action was taken solely because of union activity, the remedy imposed by PERB should be confirmed.