On-Site Mental Health Clinics as Bargaining Unit Work: Commentary on Matter of Board of Educ. of the Newburgh Enlarged City Sch. Dist. v. PERB

I. Introduction

This decision from the Appellate Division, Third Department (Matter of Board of Education of the Newburgh Enlarged City School District v. Public Employment Relations Board of the State of N.Y., 2025 NY Slip Op 06579) squarely addresses a timely and sensitive intersection: school-based mental health initiatives and public sector labor law under New York’s Taylor Law.

The central dispute is whether a school district, in an effort to expand mental health services for students by partnering with a county mental health department, may assign school-based counseling work to county-employed clinicians without first bargaining with the union that represents the district’s school social workers and psychologists. The Public Employment Relations Board (PERB) found that the Newburgh Enlarged City School District had unlawfully transferred bargaining unit work to non-unit employees. The district sought to annul that determination via a CPLR article 78 proceeding; PERB counterclaimed for enforcement of its remedial order.

The Third Department confirms PERB’s determination, upholds a finding of improper practice, and grants enforcement of PERB’s remedial order restoring the counseling of certain “non‑mandated” students to the bargaining unit. In doing so, the Court:

Reaffirms and applies the familiar two-pronged test for unlawful transfer of bargaining unit work (exclusivity and substantial similarity).
Clarifies how “referrals” to outside providers are treated when assessing exclusivity.
Holds that limited additional functions or off-hours work performed by outside clinicians do not defeat “substantial similarity” where the core counseling functions overlap.
Reinforces strict rules of issue preservation: a late-raised “public policy” defense regarding student mental health cannot be considered when not timely pleaded and properly litigated before PERB.
Confirms PERB’s authority to obtain judicial enforcement of remedial orders in this context.

The case thus becomes an important reference point for school districts, unions, and public employers contemplating partnerships with external mental health providers and for understanding the reach of the Taylor Law’s protection of bargaining unit work.

II. Factual and Procedural Background

A. The Parties and the Work at Issue

Respondent Newburgh Teachers’ Association (NTA) is a public employee organization representing, among others, school social workers and school psychologists—collectively called in the opinion “school providers.” These school providers:

Are employed by the Newburgh Enlarged City School District (the petitioner).
Provide mental health counseling and other related services to students.
Have historically delivered the counseling services required for students with Individualized Education Programs (IEPs) or Section 504 accommodation plans (“mandated” students), as clarified in footnote 1.

The work at the heart of this dispute is the in‑school mental health counseling provided to “non‑mandated” students—students who do not receive services through an IEP or 504 plan.

B. The Pilot “Satellite” Mental Health Clinics

In 2013, the district obtained a grant to create pilot “satellite” mental health clinics at three schools, in partnership with the Orange County Department of Mental Health (OCDMH). The articulated goal:

To provide mental health services to non‑mandated students and their families.
To locate those services on school grounds, thereby improving access compared with county-based facilities.

These satellite clinics were staffed not by district employees, but by clinical social workers employed by OCDMH (the opinion calls them “County social workers”).

C. The 2014 Memoranda of Agreement

In 2014, to implement this arrangement, the district and NTA executed memoranda of agreement (MOAs) allowing the County social workers to operate within the schools. Critically, the MOAs contained two notable caveats:

The County social workers would not replace the existing school providers; and
NTA would not be waiving its exclusive right to bargain concerning the work of the school providers.

These reservations are important: they preserve NTA’s claim that the core counseling work of school providers remains bargaining unit work, even while the pilot program operates.

D. Expiration of the Grant and Continued Operation

In 2016, NTA advised the district that, upon expiration of the grant, it would no longer consent to the continued presence of County social workers operating in the schools.

Despite the grant’s expiration in 2017, the district and OCDMH continued to operate the satellite clinics on school property under a different funding structure. In other words, the pilot became a continuing program, still staffed by County social workers, even though the union had withdrawn its consent and explicitly preserved its bargaining rights.

E. PERB Proceedings: Improper Practice Charge and ALJ Decision

NTA then filed an improper practice charge with PERB, alleging that the district:

Had unilaterally transferred bargaining unit work (counseling non-mandated students) to non-unit County social workers.
Thereby violated Civil Service Law article 14 (the Taylor Law), specifically Civil Service Law § 209‑a(1)(d), which prohibits public employers from refusing to negotiate in good faith with the employees’ representative.

The district answered, and a hearing was held before a PERB Administrative Law Judge (ALJ). On the final day of the hearing, the district tried to introduce a new defense based on “public policy”: that a strong public policy favoring student mental health relieved it of any obligation to bargain with NTA over this work.

The ALJ noted this defense had not been pleaded in the answer but allowed the district to move formally to amend its answer. The ALJ later denied that motion for lack of good cause.

The ALJ ultimately concluded:

The counseling of non-mandated students had been bargaining unit work, historically performed exclusively by the school providers.
The work performed by County social workers in the school-based clinics was substantially similar to that bargaining unit work.
The district therefore committed an improper practice by transferring bargaining unit work to non-unit employees without negotiating with NTA.
As a remedy, the work of counseling non-mandated students was to be returned to NTA’s bargaining unit.

PERB affirmed the ALJ’s findings and adopted the remedial order.

F. The Article 78 Proceeding and Prior Appellate Ruling

The district commenced a CPLR article 78 proceeding challenging PERB’s determination, principally arguing that it was not supported by substantial evidence (CPLR 7803[4]).

Procedurally, an earlier phase of this litigation reached the Third Department in 2023. PERB, before answering, moved to dismiss the petition, and Supreme Court transferred the proceeding to the Appellate Division. The Third Department held that PERB’s motion improperly sought a merits determination through a pre-answer motion and denied the motion, remitting the matter to Supreme Court to allow PERB to file an answer (Matter of Bd. of Educ. of the Newburgh Enlarged City Sch. Dist. v PERB, 213 AD3d 1186 [3d Dept 2023]).

Following remittal, PERB filed an answer and asserted a counterclaim for enforcement of its remedial order under Civil Service Law § 213(d). The proceeding was then transferred back to the Third Department for a substantial evidence review.

III. Summary of the Opinion

The Third Department “confirms” PERB’s determination, dismisses the district’s petition, and grants PERB’s counterclaim for enforcement of its remedial order. The Court’s key conclusions are:

Standard of Review: Because PERB held a hearing on the improper practice charge, judicial review is limited to whether PERB’s decision is supported by substantial evidence—i.e., whether there is a rational basis in the record as a whole for PERB’s findings.
Unlawful Transfer of Unit Work: Applying the established test for transfer of bargaining unit work, the Court holds:
- The school providers had exclusively performed all in-school mental health counseling for non-mandated students prior to the clinics.
- The work performed by the County social workers was substantially similar to that bargaining unit work.
- PERB’s conclusion that the district unlawfully transferred unit work to non-unit employees is supported by substantial evidence.
Referrals Do Not Defeat Exclusivity: The district’s argument that school providers referred some students to outside agencies (and thus did not exclusively perform the work) is rejected. Those referrals were for services beyond the providers’ duties (e.g., off-hours counseling, psychiatric services) and did not diminish exclusivity over in-school counseling.
Limited Additional Services Do Not Defeat Substantial Similarity: The fact that County social workers sometimes provided additional services or off-hours counseling does not negate the substantial similarity of the core counseling functions performed by both groups.
Public Policy Defense Is Unpreserved: The district’s public policy argument—that the strong policy interest in student mental health obviated the need to bargain—was not raised in its answer, and its motion to amend the answer was denied for lack of good cause. Because the district did not challenge that denial, the public policy argument was not properly before PERB and is unpreserved for judicial review.
Remedial Order Enforced: In light of the above, PERB’s request for judicial enforcement of its remedial order is granted, confirming that the work of counseling non-mandated students must be returned to NTA’s bargaining unit.

The opinion also notes, in a footnote, that PERB had at earlier stages argued for an “arbitrary and capricious” standard of review (on the theory that its hearings are discretionary), citing Matter of Lippman v PERB. However, PERB did not pursue that argument in its appellate brief, and the Court deems it abandoned.

IV. Detailed Analysis

A. Legal Framework: The Taylor Law, PERB, and Transfer of Unit Work

1. The Taylor Law and Improper Practices

The Taylor Law, Civil Service Law article 14, governs labor relations between public employers and public employees in New York. Among other things, it:

Recognizes and protects public employees’ rights to organize and to be represented by a union.
Imposes a duty on public employers to negotiate in good faith with the employees’ exclusive bargaining representative over terms and conditions of employment.
Defines “improper employer practices,” which include:
- Civil Service Law § 209‑a(1)(d): a public employer’s refusal to negotiate in good faith with the duly recognized or certified representative of its public employees.

PERB is the specialized administrative agency charged with administering and enforcing the Taylor Law. It:

Adjudicates improper practice charges.
Develops the substantive rules around bargaining obligations, including rules governing transfer of bargaining unit work.
Issues remedial orders that may be enforced by the courts under Civil Service Law § 213(d).

2. The Transfer-of-Unit-Work Doctrine

A recurring issue in public sector labor law is whether a public employer may reassign work historically performed by bargaining unit employees to non-unit employees (including other public agencies or private contractors) without bargaining. New York’s courts, deferring to PERB’s expertise, have consistently applied a two-part test:

As summarized here (quoting and paraphrasing Matter of Sliker v New York State Pub. Empl. Relations Bd., 42 AD3d 653, 653–654 [3d Dept 2007], and applied in subsequent cases):

Exclusivity: Was the work in question performed exclusively by bargaining unit employees prior to the transfer?
Substantial Similarity: Are the reassigned tasks substantially similar to those previously performed by bargaining unit employees?

If both elements are satisfied, the employer’s unilateral transfer of such work to non-unit employees generally constitutes an improper practice under § 209‑a(1)(d), unless some recognized exception applies (for example, where the union has clearly and unmistakably waived its rights, or where the change is mandated by law in a way that removes it from the scope of mandatory bargaining).

3. Judicial Review of PERB Decisions

When PERB holds a hearing and issues a quasi-judicial determination, judicial review in an article 78 proceeding is limited to whether the determination is supported by “substantial evidence” (CPLR 7803[4]). The Third Department restates the familiar test:

Our review of a decision by PERB following a hearing on an improper practice charge is limited to whether PERB’s conclusion is supported by substantial evidence, “which, in turn, depends upon whether there exists a rational basis in the record as a whole to support the findings upon which such determination is based” (internal quotation marks and citations omitted).

This standard is deferential. Courts do not reweigh evidence; they ask whether a reasonable mind could accept the evidence as adequate to support PERB’s conclusion.

The Court cites, among others:

Matter of Romaine v Cuevas, 305 AD2d 968, 969 (3d Dept 2003).
Matter of Town of Islip v New York State Pub. Empl. Relations Bd., 23 NY3d 482, 492 (2014).
Matter of State of New York v New York State Pub. Empl. Relations Bd., 183 AD3d 1172, 1177 (3d Dept 2020).
Matter of Sliker, 42 AD3d at 653.

PERB had argued earlier in the litigation that because its hearings are discretionary rather than “required by law,” a different standard—arbitrary and capricious—should apply, citing Matter of Lippman v PERB, 263 AD2d 891 (3d Dept 1999). However, PERB explicitly abandoned that position on appeal, and the Court does not decide that question here (see footnote 2, citing Matter of Portmore v New York State Comptroller, 152 AD3d 945, 946 n [3d Dept 2017], on abandonment of arguments).

B. Precedents Cited and Their Influence

1. Matter of Sliker v New York State Pub. Empl. Relations Bd., 42 AD3d 653 (3d Dept 2007)

Sliker is quoted for the basic test for unlawful transfer of bargaining unit work:

“whether the work in question had been performed by unit employees exclusively and whether the reassigned tasks are substantially similar to those previously performed by unit employees” (internal quotation marks, brackets and citations omitted).

The Third Department uses Sliker to anchor its analysis in a well-established doctrinal framework, signaling continuity with PERB’s and the courts’ long-standing approach to transfer-of-work issues.

2. Matter of Lawrence Union Free Sch. Dist. v New York State Pub. Empl. Relations Bd., 200 AD3d 886 (2d Dept 2021)

The Court cites Lawrence twice:

First, as an example of applying the exclusivity and substantial similarity test in the public school context (200 AD3d at 888).
Second, to support its conclusion that substantial evidence supported PERB’s finding of substantial similarity between the school providers’ and County social workers’ duties (id. at 889).

Lawrence thereby serves as a recent analog: another school district case where PERB’s transfer-of-work analysis was upheld.

3. Matter of Romaine v Cuevas, 305 AD2d 968 (3d Dept 2003)

Romaine is cited both for:

The articulation of the substantial evidence standard for reviewing PERB determinations; and
The proposition that courts look to whether there is a rational basis in the record to support PERB’s findings.

It underscores judicial deference to PERB fact-finding.

4. Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231 (3d Dept 2009)

This case is invoked to support the Court’s conclusion that substantial evidence established exclusivity of work:

“Thus, there is substantial evidence supporting PERB's conclusion that the school providers exclusively performed the bargaining unit work at issue before it was transferred to the County social workers (see Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231, 1234 [3d Dept 2009]).”

While the specific facts of Manhasset are not detailed in this opinion, its citation signals that the Court sees continuity with prior cases where school-district work historically performed by bargaining unit employees was unlawfully shifted to non-unit personnel.

5. Matter of Town of Islip v New York State Pub. Empl. Relations Bd., 23 NY3d 482 (2014)

The Court relies on Town of Islip for the overall standard of review and the principle that substantial evidence is assessed by looking for a rational basis in the record as a whole. Town of Islip is part of a line of Court of Appeals cases that emphasize deference to PERB’s expertise in applying the Taylor Law.

6. Matter of State of New York v New York State Pub. Empl. Relations Bd., 183 AD3d 1172 (3d Dept 2020)

Similarly, State of New York v PERB is cited as another modern application of deferential substantial evidence review of PERB decisions.

7. Matter of Lane Constr. Corp. v Cahill, 270 AD2d 609 (3d Dept 2000), lv denied 95 NY2d 765 (2000)

Lane Construction is cited for the preservation rule: issues not raised before the administrative agency cannot be raised for the first time on judicial review. The Third Department applies this doctrine to hold the district’s public policy argument unpreserved.

8. Matter of County of Rockland v New York State Pub. Empl. Relations Bd., 225 AD3d 944 (3d Dept 2024)

County of Rockland is cited in connection with PERB’s counterclaim for enforcement of its remedial order. It illustrates that:

PERB’s remedial orders are enforceable in an article 78 proceeding.
The Appellate Division has recently granted PERB such enforcement in other contexts under Civil Service Law § 213(d).

9. Matter of Lippman v Pub. Empl. Relations Bd., 263 AD2d 891 (3d Dept 1999)

Lippman is mentioned in footnote 2 purely as the authority PERB had previously cited to argue that its hearings are discretionary and not required by law, which would trigger the arbitrary and capricious standard of review. Because PERB dropped that argument, the Court does not explore or reaffirm Lippman’s particular holdings here.

10. Matter of Portmore v New York State Comptroller, 152 AD3d 945 (3d Dept 2017)

Portmore is cited in a footnote for the routine proposition that arguments not pursued in a party’s brief are deemed abandoned on appeal.

C. The Court’s Legal Reasoning

1. Applying the Transfer-of-Unit-Work Test

The Court structures its analysis explicitly around the transfer-of-work test derived from Sliker and related cases. The inquiry proceeds in two steps:

Were the relevant counseling services historically performed exclusively by bargaining unit employees?
Are the services now performed by the County social workers substantially similar to that historical bargaining unit work?

Because article 78 review is confined to substantial evidence, the Court does not decide these issues anew; it instead asks whether PERB’s findings on each prong have a rational basis in the record.

2. Exclusivity: The Role of “Referrals” and the Scope of the Job

The district’s principal challenge on exclusivity is that the school providers occasionally referred students to outside agencies, suggesting that the providers did not exclusively perform counseling of non-mandated students. The Court rejects this, endorsing PERB’s analysis of the evidence.

The key factual findings, as adopted by PERB and accepted by the Court, are:

Prior to the creation of the satellite clinics, all in-school counseling of non-mandated students was performed by the school providers.
Referrals to outside agencies occurred only when students required:
- Services beyond the school providers’ job duties (e.g., psychiatric interventions), or
- Counseling outside school hours, which school providers were not assigned or compensated to perform.
Those referrals did not displace or reduce any work that would otherwise have been done in-school by the school providers.

As the Court summarizes:

“The hearing testimony reflected that these referrals were for services that fell beyond the scope of the school providers’ job duties, inasmuch as certain students required additional supports such as counseling outside of school hours or psychiatric interventions. As PERB noted, the referrals did not take away work that otherwise would have been performed by the school providers and, indeed, all of the in-school counseling work was undisputedly performed by them.”

On these facts, the Court holds there is substantial evidence supporting PERB’s conclusion that the relevant counseling work—in-school services for non-mandated students—had been performed exclusively by bargaining unit members before it was reassigned to County social workers.

This analysis is significant because it clarifies an important nuance in exclusivity determinations:

The mere fact that bargaining unit employees refer some clients/students to outside providers does not mean they do not exclusively perform the work within their own job scope.
Exclusivity is assessed relative to the work the unit is actually charged with performing; referrals for services outside the job’s scope do not undercut exclusivity.

This also implicitly reinforces the protective nature of the Taylor Law: employers cannot erode bargaining unit work by pointing to activity that was never part of the unit’s assigned duties.

3. Substantial Similarity: Comparing the Functions of School Providers and County Social Workers

On the second prong, the district argued that the County social workers performed different or broader services than the school providers, including some off-hours services. The Court again endorses PERB’s findings and reasoning.

PERB found, and the Court recites, that both the school providers and the County social workers:

Received referrals for students in need of counseling.
Performed intake assessments.
Made mental health diagnoses.
Set treatment goals.
Developed treatment plans.
Implemented those plans in individual and group settings for students and their families.
Utilized a variety of treatment modalities.
Referred students and families to outside agencies as needed.

In light of these overlapping functions, the Court concludes:

“Therefore, substantial evidence supports PERB's finding regarding substantial similarity ..., notwithstanding the fact that there was some evidence in the record indicating that the County social workers offered certain limited additional services not delivered by the school providers, some of which occurred outside of school hours.”

Thus, fairly minor differences in the scope or hours of services do not defeat a finding of substantial similarity where the core substantive duties—counseling and treatment planning for non-mandated students on school grounds—are materially the same.

This is consistent with earlier cases like Lawrence Union Free Sch. Dist., where the courts have refused to allow employers to circumvent bargaining obligations by tacking on modest additional duties to non-unit positions while reassigning core bargaining unit functions.

4. The Public Policy Argument and Issue Preservation

The district’s attempt to justify its conduct on the basis of a strong public policy favoring enhanced student mental health services is treated entirely as an issue of procedural preservation.

The timeline is important:

The district did not plead a public policy defense in its initial answer to the improper practice charge.
It raised the argument only on the final day of the PERB hearing.
The ALJ allowed the district to move to amend its answer, but the motion was denied for lack of good cause.
The district did not challenge the ALJ’s denial of its amendment motion.

Given these facts, the Court holds:

“Accordingly, since this public policy claim was never properly presented to the ALJ for consideration, it is unpreserved for appellate review (see Matter of Lane Constr. Corp. v Cahill, 270 AD2d 609, 611 [3d Dept 2000], lv denied 95 NY2d 765 [2000]).”

The Court does not reach the merits of the public policy defense—i.e., it does not decide whether, if properly raised, a public policy imperative for student mental health could ever override the Taylor Law’s bargaining requirements. The holding is purely procedural:

Defenses must be timely raised and properly pleaded before PERB.
Failure to do so bars judicial review.
Late attempts to amend pleadings require a showing of “good cause”; failure to show good cause, if not challenged, solidifies the unpreserved status of the defense.

This aspect of the opinion underscores the importance of issue preservation in administrative law. Employers cannot hold back potentially dispositive arguments and then seek judicial review of issues the administrative agency never had the chance to address on a developed record.

5. Standard of Review: Substantial Evidence vs. Arbitrary and Capricious

In a footnote, the Court mentions that PERB initially argued that its hearings are discretionary, making the arbitrary and capricious standard applicable, citing Lippman. The Court notes:

“PERB does not pursue this argument in its brief before this Court, and we therefore deem it abandoned.”

As a result, the Court applies the substantial evidence standard without resolving the underlying legal question of when, for PERB, a hearing is “required by law” for purposes of CPLR 7803(4). Practically, this means:

For improper practice cases where PERB actually conducts a hearing, litigants should assume that the substantial evidence standard will apply at least where PERB does not argue otherwise.
The theoretical boundary between “required by law” and “discretionary” hearings in the PERB context remains for another day.

6. Enforcement of PERB’s Remedial Order

Having upheld PERB’s underlying determination, the Court then addresses PERB’s counterclaim for enforcement of its remedial order. Relying on Civil Service Law § 213(d) and County of Rockland v PERB, 225 AD3d 944, 948 (3d Dept 2024), the Court grants the counterclaim:

“Finally, in light of all of the above, PERB's counterclaim for enforcement of its remedial order is granted (see Civil Service Law § 213 [d]; Matter of County of Rockland v New York State Pub. Empl. Relations Bd., 225 AD3d 944, 948 [3d Dept 2024]).”

This means:

The Appellate Division not only rejects the district’s challenge but also affirmatively orders compliance with PERB’s directive.
The district must return the work of counseling non-mandated students to NTA’s bargaining unit.

The combination of confirmation and enforcement highlights PERB’s robust remedial authority to restore bargaining unit work, not merely to award monetary relief.

V. Impact and Implications

A. For School Districts and Public Employers

This decision sends a clear signal to school districts and other public employers that:

Expanding services through partnerships does not exempt employers from bargaining obligations. Even when additional services are laudable—such as expanded mental health supports in schools—employers must comply with the Taylor Law if those services involve work historically performed by bargaining unit employees.
On-site location matters. The Court focused heavily on the fact that all in-school counseling was historically done by the school providers. When a district brings outside clinicians onto school grounds to perform similar tasks with the same student population, it is much harder to argue that the work is “new” or outside the bargaining unit’s traditional domain.
Referrals do not create a loophole. Employers cannot rely on the fact that unit employees previously referred some students to off-site or specialized services as proof that the core in-school services were not exclusive bargaining unit work.
“Add-on” duties will not always insulate a transfer. The fact that non-unit employees perform some additional functions (e.g., off-hour counseling, extra paperwork, collateral family work) does not change the analysis where the core work is the same as that historically done by unit employees.

Practically, before a district:

Contracts with a county department or private provider to deliver on-site mental health services; or
Introduces new non-unit titles into schools to perform counseling or similar functions,

it should carefully assess:

What work has historically been performed by bargaining unit members?
How similar are the new providers’ duties to that work?
Is there a need to negotiate with the union over the reassignment of work or over a reconfiguration of services?

B. For Unions and Bargaining Units

For unions like NTA, the decision offers several strategic lessons:

Temporary accommodations can be made without waiving rights—if clearly documented. Here, the 2014 MOAs explicitly preserved NTA’s right to bargain over school providers’ work and stated that County social workers would not replace them. Similar language in other agreements can help unions prevent employers from arguing implied waiver or acquiescence.
The focus should be on core functions. Unions should document what tasks their members actually perform—intakes, diagnoses, treatment planning, etc.—to demonstrate exclusivity and to show substantial similarity when non-unit personnel are introduced.
Be proactive when “pilot” programs end. NTA’s decision to withdraw consent once the grant expired helped frame the continuation of the clinics as a unilateral employer action, rather than an ongoing, mutually agreed experiment.

C. For Cross-Agency Mental Health Partnerships

The decision does not condemn or forbid school-based mental health collaborations. It does, however, make clear that:

Such collaborations must be structured with labor obligations in mind.
Employers may need to:
- Engage in impact bargaining over how new services affect bargaining unit work; or
- Negotiate the scope of duties and lines of demarcation between bargaining unit staff and outside clinicians.

For example, a district might:

Restrict outside providers to off-site or after-hours services that were never part of school providers’ duties; or
Define an entirely new category of services (e.g., intensive wraparound family therapy) that is clearly beyond what school counselors or psychologists do as part of their regular jobs.

In each case, careful drafting and bargaining will be necessary to avoid an improper transfer of work.

D. Public Policy Arguments and Their Limits

While the Court does not reach the merits of the district’s public policy defense, the case is a cautionary tale about relying on broad policy arguments to sidestep bargaining obligations:

Public policy in favor of student mental health is undeniably strong, but it cannot simply be invoked at the eleventh hour to justify ignoring formal bargaining processes.
From a procedural standpoint, any policy-based defense that might restrict or redefine the scope of mandatory bargaining must be raised:
- Timely in the pleadings before PERB; and
- With sufficient factual and legal support so that PERB can address it on the merits.

The decision reinforces that New York courts will insist on adherence to procedural rules in administrative proceedings, even in the face of compelling public policy narratives.

E. PERB’s Role and Judicial Deference

The case also exemplifies the degree of deference New York courts typically accord PERB on questions of:

What constitutes bargaining unit work.
Whether particular tasks remain within that domain after a change in service delivery models.
What remedies are appropriate to cure improper practices.

By framing its review in terms of substantial evidence and affirming PERB’s assessment of exclusivity and substantial similarity, the Court underscores that PERB remains the primary arbiter of these labor relations questions, subject to limited judicial oversight.

VI. Clarification of Key Legal Concepts

Several legal concepts recur in this opinion. For clarity, they can be briefly defined as follows:

1. The Taylor Law (Civil Service Law Article 14)

New York’s Taylor Law governs collective bargaining for public sector employees. It:

Grants public employees the right to organize and be represented by a union.
Requires public employers to negotiate in good faith over terms and conditions of employment.
Prohibits both employer and union “improper practices,” enforceable before PERB.

2. PERB (Public Employment Relations Board)

PERB is the state agency responsible for:

Interpreting and applying the Taylor Law.
Resolving improper practice charges (the public-sector equivalent of unfair labor practices).
Determining appropriate bargaining units and representation issues.
Issuing remedial orders, including orders to restore work to a bargaining unit.

3. Bargaining Unit and Bargaining Unit Work

A bargaining unit is a group of employees represented by the same union for purposes of collective bargaining. Bargaining unit work means tasks and functions that are historically and contractually associated with positions within that unit. In this case:

The bargaining unit comprised school social workers and school psychologists.
The disputed bargaining unit work was the in-school mental health counseling of non-mandated students.

4. Improper Employer Practice (§ 209‑a(1)(d))

Under Civil Service Law § 209‑a(1)(d), it is an improper practice for a public employer to refuse to negotiate in good faith with the recognized or certified bargaining representative of its employees. Unilaterally transferring bargaining unit work to non-unit employees without bargaining is one form of such refusal.

5. Transfer of Unit Work

“Transfer of unit work” refers to the employer’s reassignment of tasks historically performed by bargaining unit members to non-unit employees (which may be supervisors, other governmental entities, or private contractors). If:

The work was previously performed exclusively by the unit; and
The reassigned work is substantially similar to that prior work,

then a unilateral transfer will usually be an improper practice absent a valid defense (such as a statutory mandate or clear waiver).

6. CPLR Article 78 and Substantial Evidence

Article 78 provides the procedural vehicle for judicial review of administrative agency determinations in New York. When the agency has held a hearing and made factual findings, the court reviews for “substantial evidence” (CPLR 7803[4]):

“Substantial evidence” means such relevant proof as a reasonable mind may accept as adequate to support a conclusion.
The court does not substitute its judgment for that of the agency; it simply assesses whether a rational basis exists in the record.

7. Mandated vs. Non-Mandated Students

Footnote 1 of the opinion explains:

Mandated students are those entitled to specific mental health services as part of an IEP or 504 plan. Those services have always been provided by the school providers.
Non-mandated students do not receive services through IEPs or 504 plans but may nonetheless benefit from counseling or mental health supports.

The dispute in this case concerns non-mandated students. The mandated services provided under special education or disability law were not transferred and remained with the school providers.

8. Issue Preservation in Administrative Law

Issue preservation means that a party must raise its arguments before the administrative agency (here, PERB) in a timely and proper manner:

Arguments not raised at the agency level cannot be raised for the first time in court.
Attempts to add defenses late in the administrative process require compliance with procedural rules, such as showing “good cause” to amend pleadings.

In this case, the district’s public policy defense was deemed unpreserved because it was raised too late, the ALJ denied leave to amend for lack of good cause, and that denial was not contested.

VII. Conclusion

Matter of Board of Educ. of the Newburgh Enlarged City Sch. Dist. v. PERB reaffirms core principles of New York public sector labor law and adapts them to a contemporary setting: school-based mental health services delivered through intergovernmental partnerships.

The decision’s principal takeaways are:

School districts cannot unilaterally reassign in-school counseling work for non-mandated students, historically performed by school social workers and psychologists, to outside clinicians—such as county-employed social workers—without first negotiating with the union.
The fact that school counselors previously referred some students to external providers for services outside the counselors’ job scope does not undercut the exclusivity of their in-school counseling work.
The fact that outside clinicians may provide some additional or after-hours services does not destroy substantial similarity where the core counseling functions are the same.
Public policy arguments, however compelling, must be timely and properly raised before PERB to preserve them for judicial review; otherwise, they are forfeited.
PERB’s determinations on these issues are reviewed under a deferential substantial evidence standard, and its remedial orders restoring bargaining unit work are judicially enforceable.

In the broader legal context, the case strengthens the Taylor Law’s protection of bargaining unit work in an era where public employers increasingly look to collaborative or contracted models to deliver services. It underscores that innovation in service delivery must proceed hand-in-hand with respect for established collective bargaining rights. For both public employers and unions, the decision offers a clear framework for analyzing when and how new programs—especially in sensitive areas like student mental health—implicate the duty to bargain over the work of existing bargaining units.