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NYS RACING AND WAGERING BOARD HAD THE DISCRETION TO UNILATERALLY REDUCE PER DIEM WAGES OF SEASONAL EMPLOYEES BY 25 PERCENT.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the Appellate Division, over a dissenting opinion, determined the New York State Racing and Wagering Board had the discretion to reduce the per diem wages of seasonal employees by 25%. The majority held that a Side Letter Agreement, which incorporated 50 articles of the collective bargaining agreement, set limits on the discretionary authority of the racing board, but did not prohibit the discretionary wage reduction at issue here. The dissent argued the 50 incorporated articles did not address the wage reduction and therefore should not be deemed to have given the racing board the discretion to unilaterally reduce the wages of seasonal employees:

The Side Letter Agreement was comprehensive in addressing all conditions of employment for seasonal employees for 1996 to 1999. It included specific pay increases for specific years, but not for the fiscal year in which the 25% reduction took effect. The Side Letter Agreement did not rule out pay reductions and did not impose any conditions precedent to pay reductions … . Thus, PERB's [Public Employment Relations Board's] conclusion that it was “reasonably clear” that both sides intended the Side Letter Agreement “to act as a negotiated limitation upon the State Budget Director's discretion” as to compensation for seasonal employees was not arbitrary and capricious. Contrary to the dissent's characterization, the decision is supported not just by the quantity of items contained in the Side Letter Agreement, but by specific items expressly limiting the discretion otherwise delegated to the Racing Board chair and Budget Director by statute. PERB's decision should be accorded deference as a decision within its area of expertise. Read as a whole, the language of the Side Letter Agreement “implicitly demonstrate[s] that the parties had reached accord” with respect to any limitations on the discretionary authority of the Budget Director to change the per diem compensation of seasonal employees. Matter of Kent v Lefkowitz, 2016 NY Slip Op 03650, CtApp 5-10-16

EMPLOYMENT LAW (NYS RACING AND WAGERING BOARD HAD THE DISCRETION TO UNILATERALLY REDUCE PER DIEM WAGES OF SEASONAL EMPLOYEES BY 25 PERCENT)/PUBLIC EMPLOYEES (NYS RACING AND WAGERING BOARD HAD THE DISCRETION TO UNILATERALLY REDUCE PER DIEM WAGES OF SEASONAL EMPLOYEES BY 25 PERCENT)/RACING AND WAGERING BOARD (NYS RACING AND WAGERING BOARD HAD THE DISCRETION TO UNILATERALLY REDUCE PER DIEM WAGES OF SEASONAL EMPLOYEES BY 25 PERCENT)

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