Date: Jul 31, 2026

Village Chief Executive May Unilaterally Agree to Accretion; Unit Clarification Cannot Be Used to Remove an Accreted Title as “Managerial”

1. Introduction

Matter of Village of Monticello v AFSCME Local 750-9, Council 66, AFL-CIO (2026 NY Slip Op 04805 [3d Dept July 30, 2026]) is a Taylor Law case arising from a village’s attempt to pressure its Department of Public Works superintendent, Jay Sherb, to resign from the union by reducing his pay and passing a resolution directing him to resign “forthwith” from union membership.

The petitioner, the Village of Monticello, challenged a determination of the Public Employment Relations Board (PERB) that the Village committed improper employer practices and that the Village used the wrong procedural vehicle—unit clarification—to contest Sherb’s placement in the bargaining unit. The respondent union was AFSCME Local 750-9, Council 66, AFL-CIO.

The central issues were:

Whether the village manager (as the Village’s “chief executive officer”) had actual authority under the Taylor Law to agree to the accretion of Sherb’s title into an already-recognized bargaining unit without further village board action.
Whether the Village’s pay cut and directive that Sherb resign from the union constituted improper practices under Civil Service Law § 209-a (1) (a), (c) and (d).
Whether the Village could use a unit clarification petition to remove Sherb from the unit based on a claim that his job was “managerial.”

2. Summary of the Opinion

The Third Department confirmed PERB’s determination, dismissed the Article 78 petition, and granted PERB enforcement of its remedial order.

The court held, in substance, that:

PERB reasonably concluded that the village manager had actual authority under the Taylor Law to bind the Village to an agreement recognizing Sherb’s accretion into an already-recognized union, because accretion effectuates representational rights and does not require legislative approval where it entails neither amended law nor additional funds.
Substantial evidence supported PERB’s finding that the Village committed improper practices by threatening and reducing Sherb’s salary to coerce his resignation from the union and by failing to bargain with the union over terms and conditions of employment.
PERB reasonably dismissed the Village’s unit clarification petition because the Village was effectively seeking to remove an already-accreted title from the unit—relief that PERB requires to be pursued via the appropriate representation procedures (i.e., decertification/unit placement processes), not via unit clarification.

3. Analysis

3.1 Precedents Cited

A. Deference to PERB’s Taylor Law interpretations

Matter of Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd., 21 NY3d 255 (2013): cited for the principle that PERB’s construction of the Taylor Law receives substantial judicial deference when reasonable.
Matter of State of New York v Public Empl. Relations Bd., 137 AD3d 1467 (3d Dept 2016): used to frame the review standard—courts do not disturb PERB’s Taylor Law constructions unless affected by error of law, or arbitrary and capricious/abuse of discretion.
Matter of Lippman v Public Empl. Relations Bd., 263 AD2d 891 (3d Dept 1999) and Matter of Cold Spring Harbor Teachers Assn. v New York State Pub. Empl. Relations Bd., 12 AD3d 442 (2d Dept 2004): cited on the procedural point that a PERB determination grounded in PERB’s own Taylor Law precedent is not reviewed under the “substantial evidence” standard applicable to fact-finding after a hearing.
Matter of Albany Police Benevolent Assn. v New York Pub. Empl. Relations Bd., 202 AD3d 1402 (3d Dept 2022): cited for the court’s choice to retain jurisdiction “in the interest of judicial economy” even though transfer was not warranted for the legal issue.

B. Chief executive authority; legislative approval limits; and the accretion/recognition distinction

Mayor of City of N.Y. v Council of City of N.Y., 9 NY3d 23 (2007): invoked for the proposition that the Taylor Law prohibits local legislative bodies from usurping the executive’s prerogative to agree with unions on terms and conditions of employment—supporting PERB’s view of executive authority in representational/collective bargaining matters.
Matter of Civil Serv. Empls. Assn., Inc. [Incorporated Village of Hempstead], 42 PERB ¶ 3024 (2009): the key PERB precedent. PERB (and the court) relied on Hempstead to hold that a village chief executive may agree to accretion because it “simply effectuates the representational rights” employees already possess and does not require legislative approval absent amendments of law or allocation of additional funds.
Matter of Town of Clay v Helsby, 45 AD2d 292 (4th Dept 1974): the Village’s main authority for the proposition that recognition of a union is a legislative act. The court distinguished Clay (recognition of a union) from accretion into an already-recognized unit, following Hempstead’s view that accretion is a nonlegislative act when it does not require new funding or legal change.
Matter of Local 589, Intl. Assn. of Firefighters, AFL-CIO v Cuevas, 271 AD2d 535 (2d Dept 2000): cited as supporting authority for sustaining PERB’s determination that the executive had actual authority and that PERB’s decision was not arbitrary/capricious or affected by legal error.

C. Improper practices and substantial evidence review

Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73 (2000) and Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660 (1990): cited for New York’s “strong and sweeping” public policy favoring collective bargaining.
Matter of Uniformed Fire Officers Assn. of the City of Yonkers v New York State Pub. Empl. Relations Bd., 197 AD3d 1470 (3d Dept 2021): provides the “substantial evidence” lens for reviewing PERB’s post-hearing findings of improper practice.
Matter of Buffalo Teachers Fedn., Inc. v New York State Pub. Empl. Relations Bd., 208 AD3d 127 (3d Dept 2022): cited on substantial evidence review of PERB determinations following a hearing.
Matter of Village of Scarsdale v New York State Pub. Empl. Relations Bd., 205 AD3d 1031 (2d Dept 2022): cited as additional support in sustaining PERB’s improper practice conclusion in a municipal setting.

D. Managerial exclusion; preserving bargaining units; proper procedural vehicles

Matter of Syracuse Teachers Assn. [Syracuse City Sch. Dist.], 37 PERB ¶ 3003 (2004): relied upon for PERB’s explanation that the criteria and investigation for certification/decertification or unit placement petitions “differ markedly” from unit clarification, which is limited to whether a title is encompassed within an existing unit.
Matter of Nassau Community Coll. [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 830], 55 PERB ¶ 3004 (2022): cited for the characterization of unit clarification as a narrower, factual scope inquiry.
Matter of International Bhd. of Teamsters Local 693 [Village of Endicott], 48 PERB ¶ 4011 (2015): relied upon to reject using unit clarification as a substitute for decertification—otherwise petitioners could “sidestep” decertification requirements.
Matter of NYC Health + Hosps. v Organization of Staff Analysts, 171 AD3d 529 (1st Dept 2019); Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL- CIO v New York State Pub. Empl. Relations Bd., 34 AD3d 884 (3d Dept 2006); Matter of Metropolitan Suburban Bus Auth. v Public Empl. Relations Bd., 48 AD2d 206 (3d Dept 1975), lv denied 37 NY2d 712 (1976): cited for the longstanding principle that Taylor Law coverage is presumed and exclusions (like “managerial”) are construed narrowly.
Matter of County of Erie v New York State Pub. Empl. Relations Bd., 247 AD2d 671 (3d Dept 1998) and Matter of Civil Serv. Empls. Assn. v Newman, 90 AD2d 114 (3d Dept 1982): cited for upholding PERB’s procedural and remedial determinations under deferential review.

E. Enforcement of PERB remedies

Matter of State of New York v New York State Pub. Empl. Relations Bd., 176 AD3d 1460 (3d Dept 2019): cited for enforcement where PERB’s remedy is not unduly burdensome and furthers fair negotiation.
Matter of Board of Educ. of the Newburgh Enlarged City Sch. Dist. v Public Empl. Relations Bd. of the State of N.Y., 243 AD3d 1194 (3d Dept 2025): cited as additional support for enforcement of PERB remedial orders.

3.2 Legal Reasoning

A. The “actual authority” holding and the accretion rule

The Village argued that the former village manager, George Nikolados, lacked authority to commit the Village to Sherb’s inclusion in the bargaining unit. PERB (and the court) treated the question as one of Taylor Law structure: the Taylor Law defines an “agreement” as the “exchange of mutual promises” between the public employer’s chief executive and the employee organization, binding except where legislative approval is required for provisions needing law changes or additional funds (Civil Service Law § 201 [12]; see also Civil Service Law § 204-a [1]).

The court accepted PERB’s Hempstead-based distinction: recognition of a union may be reserved to the legislative body, but accretion of a title into an already-recognized bargaining unit is different when it does not require legislative action—because it merely “effectuates” employees’ representational rights. On that reasoning, Nikolados (as chief executive) had actual authority to agree to accretion, and PERB’s construction was not unreasonable, arbitrary, capricious, or legally erroneous.

Notably, the court also observed that the Village effectively failed to develop a direct challenge to PERB’s “actual authority” framing until the reply brief, deeming the issue abandoned (citing Matter of Jimeno [Commissioner of Labor], 231 AD3d 1467 [3d Dept 2024]).

B. Improper practice: coercion, discrimination, and refusal to bargain

PERB’s improper practice findings were reviewed for substantial evidence because they followed a hearing and turned on record facts. The court focused on undisputed events: after the election and management change, Sherb was asked to leave the union; management tied retention of his raise to resignation; negotiations failed; and the Village Board then cut his pay by $10,000 and directed that he resign from the union.

Given Sherb’s represented status, his salary was a “term and condition of employment” (Civil Service Law § 201 [4] [a]), and the Village’s conduct fit squarely within the statutory definitions of improper practice:

Interference/coercion with protected rights to join or participate in a union (Civil Service Law § 209-a [1] [a]).
Discrimination to discourage union membership (Civil Service Law § 209-a [1] [c]).
Refusal to negotiate in good faith over mandatory subjects such as salary (Civil Service Law § 209-a [1] [d]; see also Civil Service Law § 202).

The court therefore sustained PERB’s conclusion as “legally permissible and rational” under substantial evidence review.

C. Why unit clarification could not be used to remove Sherb as “managerial”

The Village sought to exclude Sherb by arguing his duties were “managerial” under Civil Service Law § 201 [7] [a]. But PERB’s dismissal rested on procedure and institutional policy: the Legislature cautioned against destroying existing negotiating units, and PERB applies the managerial/confidential exclusions conservatively and narrowly (as described in Matter of Lippman v Public Empl. Relations Bd.).

Critically, PERB treated the Village’s filing as an attempted end-run around the more searching representational processes. The regulation defines a decertification petition as one alleging a recognized/certified organization should be deprived of representation status as to all or part of a unit (4 NYCRR 201.2 [a]), while unit clarification is limited to whether a position is encompassed within an existing unit (4 NYCRR 201.2 [b]). PERB’s precedent (Matter of Syracuse Teachers Assn. [Syracuse City Sch. Dist.]) emphasizes these tracks use markedly different criteria and inquiry.

On these authorities—especially Matter of International Bhd. of Teamsters Local 693 [Village of Endicott]—PERB rejected using unit clarification to accomplish immediate exclusion of an already-accreted title. The Third Department upheld that approach as reasonable and not arbitrary/capricious.

3.3 Impact

Clarifies executive power in accretion disputes: The decision reinforces (and operationalizes) PERB’s Hempstead rule that a village “chief executive” can bind the municipality to accretion into an existing unit when no additional funds or legal amendments are required—limiting later attempts by boards or new administrations to unwind accretion by claiming lack of authority.
Strengthens protections against anti-union retaliation via compensation: The opinion treats tying pay to resignation from union membership as a textbook violation of Civil Service Law § 209-a. Public employers should expect PERB (and courts) to view pay reductions linked to union membership as coercive discrimination and a bargaining violation.
Procedural discipline in unit-structure litigation: The court’s approval of PERB’s insistence on the proper petition (rather than a “hand-written, two-page form”) will likely deter employers from using unit clarification to re-litigate unit placement/exclusion issues that PERB channels into certification/decertification-type processes.
Stability of bargaining units: By repeating the “conservative and narrow” application of managerial exclusions and resolving uncertainties in favor of coverage, the decision promotes continuity in established units—particularly important after elections and leadership transitions.

4. Complex Concepts Simplified

Taylor Law: New York’s public-sector labor relations statute (Civil Service Law art 14) governing union representation, bargaining duties, and prohibited conduct (“improper practices”) for public employers and unions.
Accretion: The addition of a job title/position into an already existing bargaining unit (as opposed to recognizing a brand-new union). Here, Sherb’s title was added to the union’s existing unit.
Recognition vs. Accretion: “Recognition” is the employer’s acceptance of a union as representative. “Accretion” is adding positions to an already-recognized unit. The court accepted PERB’s view that recognition can be legislative, but accretion can be an executive act when it needs no law change or new funding.
Improper practice (Civil Service Law § 209-a): Conduct by a public employer that unlawfully interferes with employee union rights, discriminates to discourage union membership, or refuses to bargain in good faith. Cutting pay to pressure an employee out of a union fits these prohibitions.
Managerial employee (Civil Service Law § 201 [7] [a]): An employee excluded from Taylor Law protections only in “very clear instances,” such as those who formulate policy or play a significant, nonroutine role in bargaining preparation/administration or personnel administration requiring independent judgment.
Unit clarification vs. Decertification: Unit clarification is a narrow inquiry into whether a title is within the scope of an existing unit. Decertification (and related representation petitions) triggers a broader investigation into community of interest and conflicts—appropriate when the goal is to remove representation status for part of a unit.
Standards of review: “substantial evidence” vs. “arbitrary and capricious”: “Substantial evidence” reviews fact-finding after a hearing. “Arbitrary and capricious” (or error of law) reviews the reasonableness/legality of PERB’s Taylor Law constructions and policy choices. This case applied both standards to different aspects of PERB’s determination.

5. Conclusion

The Third Department’s decision confirms three practical rules for New York public-sector labor relations: (1) a village chief executive may agree to the accretion of a position into an existing bargaining unit without additional legislative action when no funding increase or legal amendment is required; (2) pay threats and pay cuts used to induce union resignation are classic improper practices under Civil Service Law § 209-a; and (3) employers cannot use unit clarification as a shortcut to strip an accreted title from a unit on “managerial” grounds—PERB may require the proper representation procedures instead.