CORDANI, J. INTRODUCTION The City of Shelton (city) appeals a final decision of the Connecticut State Board of Labor Relations (board) finding that the city violated the Municipal Employees Relations Act, General Statutes § 7-467 et seq. (MERA), by changing its process for evaluating candidates for promotion within the city’s workforce without negotia- tion with the Shelton Police Union (union). FACTS AND PROCEDURAL HISTORY At all times relevant to this appeal, the city and the union had a long-standing collective bargaining rela- tionship and had been parties to a collective bargaining agreement, the most recent version of which became effective on July 1, 2016 (CBA). The CBA § 17.01 pro- vides: ‘‘Promotions will be made in accordance with the provisions of the Merit System of the City of Shelton. Promotional opportunities will be posted with sufficient time to prepare for the examination and a list of study materials will be provided. Challenges to the promo- tional testing results shall be in accordance with Section 29.03A.’’1 (Emphasis added.) The merit system of the city is defined by city ordi- nance.2 Prior to February 9, 2018,3 the merit system of the city was provided for in Ordinance 896.4 Ordinance 896 provided in pertinent part: ‘‘All appointments to positions within the classified service of the City of Shelton shall be made as provided herein. Examination and testing shall be established in accordance with the job description by the [A]dmin- istrative [A]ssistant who shall first determine whether an examination shall be open competitive or promo- tional. . . . ‘‘The examination process shall be of a practical nature and shall relate to subjects which fairly measure the relative capabilities of the person examined to exe- cute the duties and responsibilities of the position sought. The [A]dministrative [A]ssistant may adopt or authorize the use of any procedures as deemed appropriate to assure a selection of employees on the basis of merit and qualifications. . . . ‘‘Examinations for positions within the classified ser- vice shall be competitive and may include written, prac- tical and oral interview test components. All applicants meeting the prescribed requirements shall be allowed to participate in the initial test component and shall be notified, in writing, of the time, place and date of the initial test.’’ (Emphasis added.) Shelton Code of Ordi- nances, c. 2, Art. VI, § 2-312 (a), (b), and (e). On February 9, 2018, the city adopted a new ordi- nance (2018 Ordinance)5 concerning the merit system with the goal of enhancing promotion from within the city’s ranks, which new ordinance provided in perti- nent part: ‘‘Upon the recommendation of the Department Head that there are qualified employees presently employed by the City, including both full time and part time employees, who are qualified to perform the job that is opened, the Administrative Assistant may, in his sole discretion, limit the applications to City employ- ees and proceed with only a promotional examina- tion.’’ (Emphasis added.) Shelton Code of Ordinances, c. 2, art. VI, § 2-301 (7.1.1). It is the adoption and implementation of this 2018 Ordinance that the union challenged. The board factu- ally found that ‘‘since on or before October, 1981, to February, 2018, the promotional process for <mask> members entailed participation by qualified candi- dates in written and oral examinations, each having a relative weight of fifty percent (50%) in determining each candidate’s final score.’’ (Footnote omitted.) In April of 2018, it was determined that there was a need for additional lieutenants in the city’s police department. In accordance with the 2018 Ordinance, the department head, [the] chief of police, notified the administrative assistant that several employees within the city’s police department were qualified for the new positions. The administrative assistant then engaged the internal promotion process provided for in the 2018 Ordinance. Five internal candidates applied for the three available positions. All of the candidates who applied were subjected to oral examination, determined to be qualified and ranked. All five were placed on a certified list of eligible candidates. The police chief then selected three candidates from the list. No written examination was given in the process. The union claimed that the adoption of the 2018 Ordi- nance and its implementation in the promotion of the three police lieutenants amounted to a unilateral change in the material conditions of employment by the city without the mandatory negotiation with the union. In particular, the union claimed that conducting the pro- motional process without a written examination was an improper unilateral change made without negotiation with the union. The city admits that it did not negotiate with the union over the adoption of the 2018 Ordinance or its implementation in the promotion of the lieuten- ants without a written examination. The union then filed a complaint with the board. The matter was heard before the board on July 19, 2019. Testimony was taken and evidence entered into the record. On March 10, 2020, the board issued its final decision which concluded that the city violated MERA by unilaterally changing the promotion process to elimi- nate the written examination portion of the process, thereby changing the mandatory equal weighting between written and oral exams. The city then appealed the board’s final decision to this court. The city is aggrieved because it has exhausted its administrative remedies and appeals a final adverse decision of the board finding that the city violated MERA and compelling the city to change its promo- tional process. STANDARD OF REVIEW This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Stat- utes § 4-183.6 Judicial review of an administrative deci- sion in an appeal under the UAPA is limited. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). ‘‘[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither [the Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evi- dence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its dis- cretion.’’ (Internal quotation marks omitted.) Id. Although the courts ordinarily afford deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes, ‘‘[c]ases that present pure questions of law . . . invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.’’ (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Informa- tion Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010). ANALYSIS The board’s final decision finds that the city violated MERA by removing the written examination from the promotional process without negotiation with the union. Specifically the board found that the fact that the promotional process contained a mandatory written examination7 weighted at 50 percent of the candidate’s overall score was a material term and condition of employment and could not be changed without negotia- tion with the union. Based upon the foregoing violation, the board ordered various remedies. Pursuant to General Statutes § 7-474 (g), the merit system, once established, is not subject to mandatory negotiation, except for three particular topics specified in the statute, which statute provides in pertinent part: ‘‘The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the initial appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining, provided once the procedures for the promotional pro- cess have been established by the municipality, any changes to the process proposed by the municipality concerning the following issues shall be subject to col- lective bargaining: (1) The necessary qualifications for taking a promotional examination; (2) the relative weight to be attached to each method of examination; and (3) the use and determination of monitors for writ- ten, oral and performance examinations. . . .’’ Here the board found that the administration of a written examination was required by the merit system, and therefore by conducting the promotional process without a written examination, the city changed the relative weight to be attached to each method of exami- nation without negotiation. However, as found by the court below, the city’s merit system did not require a written examination, and accordingly, the city’s choice to act in accordance with its merit system and not employ a written examination was not a change in the relative weight to be attached to each method of exami- nation. Thus the exception in § 7-474 (g) was not engaged and no negotiation was required. The court begins its analysis by examining what the CBA provided for concerning the city’s merit system promotional process. The CBA § 17.01 provides: ‘‘Pro- motions will be made in accordance with the provisions of the Merit System of the City of Shelton.’’8 The forego- ing provision is subject to only two possible interpreta- tions. First, the provision could mean that promotions will be made in accordance with the city’s merit system as it existed at the time that the CBA was entered into, namely, July 1, 2016. In the alternative, the provision could mean that promotions will be made in accordance with the city’s merit system as that system is amended from time to time.9 The interpretation of contract lan- guage is a question of law for the court to resolve. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987). If the provision has the first meaning, namely, that the merit system authorized by the CBA is that system in effect on July 1, 2016, when the CBA was signed, then that merit system was reflected in Ordinance 896 which was publically adopted several months before the CBA was signed, and which provided that (i) the examination could be open competitive or promotional, (ii) the administrative assistant may adopt or autho- rize the use of any procedures as deemed appropriate to assure a selection of employees on the basis of merit and qualifications, and (iii) that examinations may include written components. Thus, the city’s merit sys- tem as it existed on July 1, 2016, did not absolutely require a written examination because the ordinance gave the administrative assistant power to adopt any procedures deemed appropriate and because the ordi- nance indicated that the process may contain a written component. A 1977 Ordinance provided: ‘‘Effective immediately any written and oral examinations speci- fied in the requirement sections of all ordinances deal- ing with job descriptions will be weighed equally, 50% written and 50% oral.’’10 (Emphasis added.) Shelton, Conn., Code of Ordinances, adopted March 14, 1977. This clearly meant that if the process included written and oral examinations, the two exams would be weighted equally. Accordingly, it is clear that the merit system that existed on July 1, 2016, did not absolutely require a written examination, but instead only required that if the process contained both oral and written com- ponents, they would be weighted equally. The adminis- trative assistant was provided with the discretion to choose the appropriate procedure. If the CBA provision authorizes any merit system that the city maintains as amended from time to time, then the merit system relevant to this case was as described in the 2018 Ordinance, and that merit system did not require a written exam. Similar to Ordinance 896, the 2018 Ordinance provided the administrative assistant with discretion to determine the proper procedure. Thus, in either case the CBA authorizes the use of a merit system which allows for but does not require a written examination and allows the administrative assistant to choose the appropriate procedure.11 The board factually found that, in practice, from Octo- ber, 1981, through February, 2018, the city’s merit sys- tem was actually conducted in such a manner that it included a written examination weighted at 50 percent. Such a long established practice of an important aspect of employment could amount to a material term and condition of employment and the board found that it did. A material term and condition of employment gen- erally cannot be altered without negotiation with the union. Further, the board found that the weighting of the written and oral examinations at 50 percent each was a condition that required negotiation to change under . . . § 7-474 (g).12 Thus, the board found that the provision of a written examination weighted at 50 percent within the merit system could not be changed without negotiation with the union. However, § 7-474 (g) only required negotiation if a change was made to the relative weight to be applied. Here no change was made because the merit system allowed a process with- out a written examination. Further, if the CBA covers this term and condition of employment, then the city and the union have already negotiated over the matter and arrived at a result that is memorialized in the CBA. A failure to negotiate over a term of employment cannot be found where an express agreement between the parties that covers that term of employment is found in a collective bargaining agreement such as the CBA here. An employer does not have a duty to bargain over a term of employment that is covered by a provision of a collective bargaining agreement. See Board of Edu- cation v. State Board of Labor Relations, 299 Conn. 63, 74, 7 A.3d 371 (2010); see also Norwich v. Norwich Fire Fighters, 173 Conn. 210, 215–16, 377 A.2d 290 (1977). Collective bargaining agreements are the cornerstone of the relationship between the employer and labor. Collective bargaining agreements memorialize the bar- gaining that has occurred between the parties and estab- lish each party’s rights and obligations concerning the topics covered by the collective bargaining agreement. Thus, it is clear that the parties have the right and the obligation to conduct themselves in accordance with the terms of the collective bargaining agreement. Clearly the CBA covers this matter. The CBA requires that promotions be made by the city in accordance with the city’s merit system. As noted [previously], the merit system authorized by the CBA does, and did, not require a written examination within the process. Although the board factually found that, since 1981, the city utilized written examinations, on July 1, 2016, the union and the city negotiated and agreed that the merit system would be that system described in the city’s ordi- nances.13 Thus the union has had its negotiation con- cerning this term of employment and came to an agree- ment reflected in the CBA, and that agreement does not require a written examination. The board found the city’s reliance on the ordinances misplaced. The court respectfully disagrees. The CBA required the city to use its merit system. The merit system was defined by the ordinances. Thus the CBA, and therefore the union, agreed that the city should use its merit system as defined in the ordinances. The board found that § 17.01 of the CBA must be read as a whole, and should be read consistent with § 29.03A. That may be so, but a corresponding reading does not change the court’s interpretation of the CBA. Section 29.03A of the CBA refers to a written memoran- dum of understanding that is attached to the CBA. The memorandum of understanding establishes procedures to be followed to allow candidates to challenge results on written tests given for promotional purposes. Thus the memorandum of understanding allows for individ- ual challenges to scores on written examinations, if such written examinations are administered. The mem- orandum of understanding does not change the meaning of the CBA and does not require the administration of written examinations. Section 29.03[A] is not meaning- less, it merely provides procedures that may be used in applicable circumstances. The past practice of the city in using written examina- tions is entirely consistent with the CBA and the ordi- nances. Both the CBA and the ordinances allow for written examinations but do not require them. Reading the CBA as the union and the board do, results in a meaning that invalidates or undermines the plain mean- ing of the ordinances which were in existence when the CBA was signed. Since the CBA clearly uses the ordinances to define the merit system,14 a reasonable reading of the CBA must be consistent with and not undermine the ordinances. Further, reading the CBA to allow but not require written examinations produces an interpretation that is consistent with the plain words of the CBA, including the attached memorandum of understanding, past practice, and the ordinances. The union in this instance has not waived its right to negotiation,15 it has had its negotiation when it agreed to the CBA, and the CBA does not mandate written examinations be part of the merit system. Accordingly, in passing the 2018 Ordinance, and in implementing the 2018 Ordinance in the promotion of the lieutenants, the city has not deprived the union of negotiation concern- ing this topic and has not violated MERA.16 Accordingly, the court determines that the plaintiff has established on appeal that the final decision of the board is (1) affected by error of law, and (2) clearly erroneous in view of the reliable, probative, and sub- stantial evidence on the whole record. The court there- fore respectfully sustains the appeal. ORDER The appeal is sustained. Judgment enters for the plaintiff. The city of Shelton has not, on the record before the court, violated MERA. Accordingly, the judg- ment and orders of the board are vacated. * Affirmed. 210 Conn. App. 390, A.3d (2022). Section 29.03A refers to a September 18, 2003 memorandum of under- standing which is attached to the CBA and provides procedures to be fol- lowed to allow candidates to challenge results on written tests given for promotional purposes. Although the CBA uses ‘‘Merit System’’ in capital letters, it does not define the term. The only place in the record where the merit system is defined in written documents is in the city ordinances. The city ordinances, in particular Ordinance 896, provide a definition of the merit system, explaining in detail how the system is applied and how it operates. See Record Exhibit 17, pages 248–66 for Ordinance 896 entitled ‘‘Merit System and Personnel Rules.’’ See also Record page 296 for a history of amendments to these merit system ordinances from 1985 through 2016. As required, these ordinances are adopted through the normal legislative process of the city which process is open to the public. The foregoing Ordinance is entitled ‘‘Merit System and Personnel Rules’’ and is found in the Record at Exhibit 17, pages 248–66. The city’s ordinances concerning the merit system have been amended by the city on a multitude of occasions over the years, but the details of the changes are not specifically reflected in the record. See Record page 296 for a history of amendments to these merit system ordinances from 1985 through 2016. A 1977 ordinance provided: ‘‘Effective immediately any written and oral examinations specified in the requirement sections of all ordinances dealing with job descriptions will be weighed equally, 50% written and 50% oral.’’ (Emphasis added.) Shelton, Conn., Code of Ordinances. See Record Exhibit 18, pages 267–352. Again, this ordinance, which amends the previous merit system ordinances, defines the merit system and provides significant details concerning the applicability and operation of the merit system. General Statutes § 4-183 (j) provides in relevant part: ‘‘The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, con- clusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. . . .’’ The board’s decision thus depends upon its finding that the city’s merit system absolutely required a written examination, and therefore proceeding without a written examination changed the relative weight to be attached to each method of examination. The CBA further provides for a process of challenging the test results, however it is clear that this challenge process is directed to case-by–case challenges of individual candidates. Thus, if a particular candidate believes that there was a mistake in scoring, that candidate may challenge the particu- lar score(s) through the specified challenge process. Thus, this challenge process adds nothing to the analysis of the issues before us. The board factually found that the merit system had been amended by the city on a multitude of occasions over the years, but that the record does not reflect the details of all changes to the merit system by city ordinances. Thus, this 1977 ordinance refers to ‘‘any written and oral examinations’’ ‘‘specified in the requirement sections of all ordinances.’’ (Emphasis added.) Clearly this ordinance does not specify that a written examination is required. Instead, it indicates that, if a written examination is administered, it will be weighted equally with the oral examination. Given the multitude of changes to the merit system over the years made by city ordinances, the court finds that the meaning of this CBA provision is that the city is authorized and required to use the city’s merit system as that system is defined and modified by city ordinance from time to time, with the potential exception for negotiation required by § 7-474 (g) if changes are made that fit within the statutory exceptions. However, since no change was made to the relative weighting of examinations, no negotiation was required here. The court notes that the CBA defers to the city ordinances to define the merit system and does not prohibit the city from changing the merit system. This also makes sense since the merit system is used citywide across many unions and collective bargaining agreements. Further the vari- ous union’s interests here are to ensure that promotions are provided in an evenhanded, fair and rational way. This interpretation is also consistent with § 7-474 (g), which exempts the merit based promotional process from mandatory negotiation except for the specific topics specified in the statute. However, regardless of which interpretation of this CBA provision is applied, the provision does not require the use of written examinations, thus no change was made in that regard. General Statutes § 7-474 (g) provides, inter alia, that the merit based promotional process is exempt from mandatory negotiation with a union except that changing the relative weight to be attached to methods of examination shall be subject to negotiation. As noted [previously], regardless of the interpretation of this provision, the merit system as described by the ordinances did not require a written examination, whether we look to Ordinance 896, which was in effect when the CBA was signed, or the 2018 ordinance. Neither ordinance required a written examination. The CBA does not itself explicitly define or describe the city’s merit system in any detail. The city defined its merit system through city ordi- nances. However, even if we look at waiver, the union signed the CBA referencing the city’s merit system while knowing that Ordinance 896 had been enacted months before defining and explaining the city’s merit system as a system that ‘‘may’’ include, but does not require, a written examination, and authoriz- ing the administrative assistant to utilize any procedures deemed appropriate by the administrative assistant. This ordinance was adopted through the normal public legislative process, and the union either was aware of it or should have been. The union chose to adopt the CBA requiring the city to use its merit system without further definition or limit in the CBA. If the union was dissatisfied with Ordinance 896, it should have objected when the ordinance was enacted or dealt with the matter in the CBA. The city now is merely acting in accordance with its agreement. The board found that the CBA language did not reflect a mutual intent to authorize elimination of the written exam. However, the CBA is absolutely clear in requiring the city to use its merit system in evaluating promotions. The city’s merit system, whether the system in place at the time that the last CBA was signed or the system as established from time to time by city ordinance, does not require a written examination. Thus, there was nothing to waive. Conduct in accordance with the CBA effective at the time does not require a waiver because the city had the right and the obligation to conduct itself in accordance with the CBA. Although the city did use a written examination for some time, the system that it was operating under allowed for but did not require the use of a written examination. Further the CBA signed in 2016, and applicable to all relevant periods here, specifies and confirms that the city is to use its merit system. This is exactly what the city did.


To determine whether retirees must proceed through the union and resolve disputes regarding postemployment benefits through the grievance arbitration procedures provided in the collective bargaining agreement from which those benefits arise, courts must examine the parties’ intent as gleaned from the agreement. It is true, of course, that generally once an individual ceases to be an employee, the union’s statutory duty to fairly represent the individual as a bargaining agent also ceases, and hence the union cannot be said to be that individual’s exclusive representative for that purpose.3 But a union’s contractual duty to represent a former employee by processing his or her grievance through the contractually established procedures may nevertheless remain. For example, it appears well established that if the events predicating a contract grievance arose at the time an individual was an active employee and thus a member of the <mask>, the union retains its duty to represent the former employee, and that employee *254and the union must resort to the contract procedures for resolution (see Baker v Board of Educ. of W. Irondequoit Cent. School Dist., 70 NY2d 314; Roman v United States Postal Serv., 821d 382). This is not a bargaining function — negotiating a new or different agreement — but one to resolve a dispute under an already bargained agreement in accordance with contractually agreed procedures for resolving those disputes.


The purpose of the agreement is set forth in paragraph 2 of article I, as follows: “ 2. The purposes of this agreement are to make provision for the terms and conditions of employment for the ‘ employees ’ (as distinguished from 1 parties ’) in the <mask>, to establish an orderly collective bargaining procedure between the Company and the Union (not between the ‘ Company ’ and the ‘ Employees ’) and to secure a prompt and fair disposition of grievances.”


*769The discrimination common to each of these proceedings, the withholding of 1977 salary increases, is founded solely upon petitioners’ nonunion status. While similarly graded employees were afforded raises pursuant to their collective bargaining agreement, increases were denied these petitioners solely because of their nonmembership in the collective <mask>. As in the Abrams (33 NY2d 488, supra) and Nassau (88 Misc 2d 289, supra) cases, the governmental objective sought to be accomplished or advanced by this discriminatory treatment is fiscal economy. But that objective was not sought to be accomplished by means of any equitably designed, consistently applied, all encompassing plan of salary reductions, salary grade reclassifications, pay raise deferments, employee furloughs, job eliminations, or other carefully conceived, fairly distributed economic measures (cf. Koenig v Moran, 56 AD2d 254 supra; and see Committee of Interns and Residents v City of N. Y., 87 Misc 2d 504, supra; Matter of Subway-Surface Supervisors Assn. v New York City Tr. Auth., 85 Misc 2d 695). Rather, the respondents elected to impose an economic hardship upon a nonunion minority of similarly graded employees. I find their actions to be constitutionally impermissible.


Petitioners’ arguments fail because, as discussed above, petitioners have neither stated nor proven displacement of Parks Department employees. Petitioners failed to allege a loss of <mask> positions with a basic level of detail required under Rosenthal for a case-by-case analysis. Neither Rosenthal nor Roberts alleges that any bargaining unit positions were lost in the four months preceding the filing of this lawsuit.


“ The labor agreement is so well written and its pertinent language with respect to the right to challenge a discharge by the Company is so clear and unambiguous that there is no room for a construction contrary to the obvious and plain intent expressed by the parties themselves. “ Under the above quoted provisions, the Union alone has the right to demand arbitration and there is no independent right of an employee within the <mask> either to compel the Union to institute arbitration proceedings, or to require the Company to submit to arbitration without regard to the Union. ‘ ‘ The philosophy of the Union in retaining control over disputes and of the Company in requiring the same is sound. A contrary procedure which would allow each individual employee to overrule and supersede the governing body of a Union would create a condition of disorder and instability which would be disastrous to labor as well as industry.’ ’ Although the petitioner has alleged in conclusory form that the union arbitrarily and capriciously refused to demand arbitration in his behalf and that both respondents are “ collusively ” preventing petitioner from arbitrating the rightfulness of his discharge, the facts presented on this application not only fall far short of supporting these allegations, but tend to prove quite the opposite. The fact appears to be that the union was satisfied that the employer had ample cause for discharging the petitioner and reasonably concluded that there Was no basis for demanding arbitration. Under the collective bargaining agreement it is the union which has the right to demand arbitration for alleged wrongful discharge of one of its members. Here, the union takes the position that in this case the discharge by the employer was justified and in so doing concurs in the position taken by the other party to the collective bargaining agreement. The motion to compel arbitration is therefore denied.


Petitioner, the United Federation of Teachers (UFT), seeks to obtain copies of all grievances and decisions rendered on grievances filed by registered nurses represented by a competing union, the State Nurses; Association (the Association), which is a respondent-intervejnor in this proceeding. It appears that the UFT seeks sdch information as part of its campaign to supplant the Association as the certified collective <mask> representing registered nurses.


In support of the application the petitioner claims that in December, 1969 the respondent filed a petition with PERB for certification as the negotiating representative for the negotiating unit described in paragraph 6 of the petition. Paragraph 6 describes and lists those job titles which were to be included and which were to be excluded from the <mask>. Petitioner alleges that the job entitled “deans ” was not included in the description of those which were to be a part of the negotiating unit, and the job title of “department chairman” was expressly excluded.


Petitioner, who was first hired as a probationary parole officer on December 4, 1980, obtained permanent/tenured status on December 4, 1981. Prior to his termination, he was never formally or informally disciplined. Petitioner was sentenced on February 18, 1988 to serve five years’ probation and is presently appealing his conviction. At all relevant times, petitioner was a member of the Professional, Scientific and Technical Services Collective <mask> of State employees which is represented by the Public Employees Federation AFL-CIO (hereinafter PEF). On December 30, 1987, PEF filed a contract grievance and a demand for arbitration on petitioner’s behalf contending that the respondents violated the PEF/State collective bargaining agreement by terminating petitioner without complying with the agreement’s disciplinary procedures. Respondents thereafter refused to participate in the arbitration process.


Respondent, the exclusive negotiating agent of the employees of the county, filed a grievance alleging that the April 12, 1973 resolution was contrary to section 1 of article X of the collective bargaining agreement between the parties* and unilaterally abrogated a fringe benefit enjoyed by county employees since December 17, 1964. Petitioner contends that the health benefits for retirees were never the subject of negotiations and are not covered under the agreement. The arbitrator applied what is termed a “ past practices ” doctrine and found that, in view of the county’s consistent past practice since 1964, there existed an implied agreement to provide an important existing benefit and that it should continue to pay one half of the cost of the health benefits in question. He made an award dated August 22, 1973 granting the benefit to any employees in the <mask> represented by respondent, who retired from petitioner’s service after June 30, 1973 and was denied the benefit by virtue of the petitioner’s action in 1973.


The company’s motion herein is directed against that notice, upon the ground that the agreement clearly does not provide for arbitration with respect to employees outside the <mask>. In a supplemental affidavit in support of the motion the company shows that since the motion was made the Union *347has filed with the National Labor Relations Board a charge that the company has committed an unfair labor practice under the National Labor Relations Act, by reason of its refusal to bargain with the Union with respect to the conditions of Philip Cornelia’s temporary transfer; that the Regional Director of said board refused to issue a complaint upon said charge; and that the Union has appealed from the Regional Director’s decision and said appeal is still pending. The Union does not contest this showing.


On November 14, 1961 Rodney Stark, an employee, included in the <mask> covered by this agreement, was laid off as a traffic co-ordinator, transferred to replace one McGill as an expeditor on November 15, and promoted to a job outside the unit on January 2, 1962. The arbitrator found that the work of the traffic co-ordinator had dwindled to less than two hours, therefore making it impracticable to keep an employee in that classification, that his work was reassigned to other employees *143and to the shipping and receiving supervisor who ‘ ‘ is performing only a small part of the function, most of which he has always done in the past. ’ ’


The petitioner then appealed to PERB from the decision of the acting director. It asserted "that the scope and composition of a <mask> is a mandatory subject of bargaining and where, as here, the respondent unilaterally alters said bargaining unit it is a violation of Sections 209-a.l(a) and (b) of the Act”. Inherent in this assertion is its argument that "the scope and composition of a recognized collective bargaining unit is a term and condition of employment within the meaning of Section 204(2) of the Act,” and, therefore, the "existing bargaining relationship should not be altered without prior bargaining in good faith”. In so arguing it attempted to analogize the prohibition of withdrawing, without bargaining, recognition of a voluntarily recognized bargaining unit in the private employment sector, and, while it conceded that the public employer’s initial recognition is and should be voluntary, it contends that the law precludes a subsequent voluntary alteration of that recognition.


In this case, Grower relies on the disclaimer exception to the certified until decertified rule. Disclaimer involves a union "unwilling to represent the unit employees." (Dole Fresh Fruit Co., Inc. (1996) 22 ALRB No. 4, p. 11.) In Arnaudo I , supra , 40 ALRB No. 3, the Board noted that it had "never defined what constitutes a disclaimer of interest" under the Agricultural Labor Relations Act. (Arnaudo I, supra, at p. 13.) The Board partially filled the void by adopting four principles derived from precedent of the National Labor Relations Board (NLRB). First, the Board equated a disclaimer with an unwillingness to represent the <mask>. (Id . at p. 10, fn. 2 and accompanying text.) Second, the Board concluded that a disclaimer by a union must be clear and unequivocal and must be made in good faith. (Id . at p. 14.) Third, the union's conduct must not be inconsistent with the disclaimer. (Ibid .) Thus, inconsistent conduct can render a clear and unequivocal disclaimer ineffective.6 (Ibid .) Fourth, "the party asserting disclaimer of interest bears the burden of proving the disclaimer occurred." (Ibid .)


"Section 2. All persons commencing employment with Nassau County on or after January 1, 1977 shall receive a starting salary as reflected in Schedule 'B’ attached hereto and made a part hereof. All of said new employees commencing County employment on or after January 1, 1977 shall not become members or enjoy any of the benefits of the graded salary plan with steps contained therein and set forth in Schedule 'A’ but shall be limited to receive such renumeration as is contained on Schedule 'B’ plus any additional sums which may be negotiated between the <mask> and the County on a year-to-year basis.


Edward S. Conway, J. This is a motion by the plaintiff for a preliminary injunction in a declaratory judgment action seeking judgment declaring that there is no binding collective bargaining agreement between the plaintiff and the State of New York replacing the 1977-1979 agreement. The preliminary injunction sought would enjoin and prohibit the defendants, during the pendency of this action, from implementing and imposing on the plaintiff or any member of the <mask>, which plaintiff represents, any provision of an alleged contract which the State purports to have been entered into between the plaintiff and the State of New York as a successor agreement to a contract between the plaintiff and the State of New York dated April 13, 1977, and would prohibit and restrain the defendants from interfering with the rights of plaintiff and its members by representing to plaintiff’s members and others that such a contract exists.


The initial contract between the County of Chautauqua and Local 807 was in effect from January 1,1978 through December 31, 1980, and covered all county employees except department heads, elected officials and officials who had power to appoint subordinate personnel. It included most of the Sheriff’s employees who now are in the plaintiff’s <mask>. The contract *471expired December 31,1980, but its provisions remained in effect “until the parties reach a subsequent agreement”.


It is apparently the claim of the unions that the action of the company in these particular matters has deprived employees in the <mask> of work which might otherwise have been assigned to them. The question of arbitration of these particular matters depends upon the arbitration clause of the labor *232agreement which may not be expanded by construction or implication but must be taken as written.


The State has the power to regulate, despite what may be some incidental infringement, individual rights. The helpful means; devised by the State to deal with “ evils ” has been weighed by the courts against any infringement on rights. (Mine Workers v. Illinois Bar Assn., 389 U. S. 217.) Congress has exercised its constitutional power to regulate labor relations, enacting the Wagner Act of 1936, the Taft-Hartley Act of 1947, *257and the Landrum-Uriffin Act of 1959. Under the National Labor Relations Act (NLRA), Congress empowered the National Labor Relations Board to regulate labor relations. NLRA commands, as its purpose and policy, that the peaceful procedures of collective bargaining supersede the jungle warfare which caused industrial strife. Thus, collective bargaining is a private undertaking by employer and labor organizations in the public interest. The case of Labor Bd. v. Jones & Laughlin (301 U. S. 1) affirmed the validity of the Wagner Act, and this has been the basis of all future labor regulations. The only source of revenue for the union is membership dues and initiation fees. The Supreme Court has made it clear that requiring a reasonable fee for membership by a “ union shop ” provision is not in itself a violation of constitutional rights. (Railway Employees Dept. v. Hanson, 351 U. S. 225; Machinists v. Street, 367 U. S. 740.) The viability of unions is part and parcel of Congress’ intention to promote industrial peace through collective bargaining. The beneficiaries of collective bargaining, being all the members of the laboring force, should contribute to the cause and not have a “ free ride ”. Thus, Railway Employees Dept. v. Hanson (supra) decided that it was permissible for the Legislature to require all who gain from collective bargaining to contribute to it. Aftra has been explicitly and particularly selected by a majority of the employees in the same <mask> as plaintiff as their bargaining agent. Its services, consequently, are expressly solicited and wanted by these employees for the full, fair and faithful pursuit of the collective bargaining objects and purposes of these employees in the exercise of the rights guaranteed to all employees under the NLRA. Although the plaintiff derides the benefits accruing to him by reason of the collective bargaining of Aftra, whether he wants such benefits or not, Aftra is obligated to provide such benefits to him as an employee in the bargaining unit under the doctrine of Vaca v. Sipes (386 U. S. 171, 177): “ Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination towards any”.


In reaching its determination, PERB accepted the arbitrator’s interpretation of section 38.3 and then applied its decision in State of New York (Unified Ct. Sys.) (25 PERB 3035) where it concluded that, because the contract gave the employer unrestricted discretion regarding the granting of paid leave for a certain purpose, the <mask> effectively waived its right to further bargain and lost its right to maintain a unilateral change cause of action. It noted that the circumstances here are indistinguishable from those in State of New York (Unified Ct. Sys.) (supra), and thus concluded that the arbitrator’s decision was not repugnant to the Taylor Law since petitioner waived the right to bargain over travel time compensation.


It is the petitioner’s contention that the matters sought to he arbitrated involve a challenge by respondent to the <mask> approved by PERB following an election, and an attempt to interfere with another bargaining unit which is represented by a separate employee organization, and that an arbitrator has no power or authority in this matter and therefore arbitration should be stayed.


In connection with the foregoing, the court notes that a presumption of validity and legality attaches to a collective bargaining agreement (Matter of Levinsohn Corp. [Joint Bd. of Cloak, Suit, Skirt & Reefer Makers’ Union], 299 N. Y. 454). A union is not required to show that the National Labor Relations Board has previously established the appropriate collective <mask> and that the union is the majority representative therein; and, unless and until the National Labor Relations Board invalidates a collective bargaining agreement, the normal presumption of legality must prevail (Matter of Levinsohn, supra).


*934On September 30, 2015, the Board issued Decision No. 2455, adopting the ALJ's proposed decision. The Board specifically rejected appellant's contention that certain employees, such as bus drivers who did not work 12-month assignments, were not entitled to holiday pay, finding that "[u]nder the [collective bargaining agreement], employees included within the <mask> are entitled to holiday pay whether they work the holiday or not so long as they are on paid status on the working day immediately preceding or succeeding the holiday. The District's attempt to remove bus drivers and other CSEA-represented bargaining unit employees from coverage under the [collective bargaining agreement] by referring to them as 'as needed' or to their assignments as 'extra-duty or summer session' or 'beyond *27their "regular" assignments' fails. These distinctions are nowhere to be found in the parties' negotiated labor agreement."


Moreover, the references in the Union’s so-called 44 Spotless Bulletin,” a publication issued by the Union to its members in August, 1958, and its purported collective bargaining agreement seeking to cover 44 trade ” embalmers, which was submitted by the Union to plaintiffs during the Summer of 1958, are further proof that the true objective of the Union’s activities was to *309press the issue of the recognition of “trade” embalmers as part of the collective <mask>. In the opinion of the court, all of the Union activities here involved, including the use of pickets, picket signs, the circulation of letters to other unions and to the public in an attempt to discourage patronage of the Association’s members are all in direct violation of the injunctive order, inasmuch as this course of conduct destroyed or was a calculated attempt to destroy the goodwill, trade and business of the Association and of its members.


The facts in Abood (supra) are strikingly similar to the facts here. There a group of nonunion public school teachers challenged the constitutionality of a Michigan statute which permitted public employers to require as a condition of employment that all employees in the <mask> pay to the bargaining representative a service fee equal to the amount of dues paid by the members. The plaintiffs argued a violation of rights guaranteed by the Constitution because the fees they were compelled to pay were used by the union, over their objections, for purposes other than collective bargaining, including political, religious, charitable and recreational activities. Upon review of a motion addressed to the pleadings, the Michigan Court of Appeals sustained the validity of the statute and held that, regardless of whether or not plaintiffs’ allegations were true, they were nevertheless not entitled to restitution of any portion of the fees (60 Mich App 92).


Petitioner herein, an employee organization, is the duly certified representative of a <mask> of employees consisting of noncommissioned officers, investigators and troopers within the Division of State Police. Another employee organization, Local 1908, filed a petition with the respondent PERB August 29, 1975 seeking to challenge the representation status of the petitioner herein. Local 1908 filed its evidence of a "showing of interest” of 30% or more of the employees in the unit in accordance with PERB’s rules of procedure by attaching to its petition a computer print-out list of the dues-paying members of the local, provided by the State of New York, and petitions signed by members of the Local 1908 supporting the filing for a secret ballot election for the selection of a bargaining representative.


The Board has interpreted the Agricultural Labor Relations Act to mean that once a labor organization is certified as the exclusive bargaining representative of a group of employees, it remains certified "until it is decertified or a rival union is certified, or until the union becomes defunct or disclaims interest in continuing to represent the unit employees." (Lu-Ette Farms, Inc. (1982) 8 ALRB No. 91, p. 5.) This principle is referred to as the "certified until decertified" rule and its two exceptions. (Arnaudo I , supra , 40 ALRB No. 3, p. 9.) The exceptions of defunctness5 *655and disclaimer are not expressly stated in the Agricultural Labor Relations Act. Thus, from the perspective of statutory construction, the exceptions were not clearly stated in the text, but were derived by inference. *36Both of the exceptions are referred to by the Board under the label "abandonment," which the Board describes as "a legal term of art."6 (Bruce Church, Inc . (1991) 17 ALRB No. 1, p. 9.) "[T]he Board has defined abandonment as a showing that the Union was either unwilling or unable to represent the <mask>." (Id . at pp. 9-10.) More generally, abandonment is, "in essence, a showing that the Union had effectively left the scene altogether." (Id . at p. 10.)


PERB scheduled a hearing on the UFCT petition, and notice to that effect was sent to UFCT. A copy of the UFCT petition was posted at the PERB office in the Nassau County Executive Building in the Mineóla complex. No notice was directly given to the Senate, and the Senate did not participate in the early proceedings, which commenced on October 14, 1970 before a hearing officer designated by PERB. The hearing officer subsequently submitted his report to PERB on January 12, 1971 recommending that the appropriate <mask> would be “ one unit * * * for both full-time faculty and part-time *310faculty who are not management employees That proposed unit would include the employees then being represented by the Senate.


*389When, as here, PERB has no power to directly undo an action, PERB's remedy is not to indirectly undo the action or treat the action as if it has been or will be undone. Instead, PERB's remedy is to order bargaining over the effects of the action and backpay for the affected <mask> employees during the bargaining process. (See Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 862-866, 176 Cal.Rptr. 753, 633 P.2d 949 ; El Dorado County Deputy Sheriff's Assn. v. County of El Dorado (2016) 244 Cal.App.4th 950, 964, 198 Cal.Rptr.3d 502 ; see also Transmarine Navigation Corp. (1968) 170 NLRB 389, 390.)


Petitioner’s counsel’s position is that neither he nor NYSUT is under any obligation to provide any member with counsel, but that it provides counsel for teachers in job-related matters *661where counsel considers the teacher’s case meritorious. Counsel further argues that there is no statutory or common-law authority for Dreska’s position. Counsel claims that Vaca v Sipes (386 US 171) is the pertinent authority contrary to Dreska’s position. In Vaca, the United States Supreme Court held that a certified bargaining representative’s duty to fairly represent all of the members of the <mask> (see Steele v Louisville & Nashville R. R. Co., 323 US 192, 203) does not require the union to take every grievance raised by a member of the bargaining unit to arbitration merely because he demands it. Rather, the obligation of the union is satisfied as long as the union is neither arbitrary nor discriminatory and acts in good faith (Steele v Louisville & Nashville R. R. Co., 323 US, at p 207). Thus, on the basis of Vaca, counsel argues that NYSUT through counsel "made a good faith reasonable judgment that petitioner’s rights had been violated, and, accordingly, provided her with counsel.” The union, it is argued, "must also be free to pursue those matters it deems meritorious” and "it must be free to take a position on * * * disputes.” (Humphrey v Moore, 375 US 335, 349.) In Humphrey v Moore (supra), the United States Supreme Court rejected the contention that a union’s recommendation that seniority lists of two merging companies within the same bargaining unit be "dovetailed” was a breach of the duty owed to members of the bargaining unit who were employed by one of the companies. The court stated that, absent hostility, bad faith or dishonesty, the union should not be "neutralized” when an issue arises between two sets of employees (Humphrey v Moore, 375 US 335, 349, supra). A similar holding was reached in Waiters Union, Local 781 of Washington, D.C. v Hotel Assoc. of Washington, D.C. (82 LRRM 2646), where the court, relying on Humphrey, stated that a court "cannot find a breach of the duty of fair representation when a union’s decision in a matter as to which the interests of differing groups of employees are in conflict is not shown to be fraudulent or deceitful and is not based upon capricious or arbitrary factors” (Waiters Union, Local 781 of Washington, D.C. v Hotel Assoc. of Washington, D.C., 82 LRRM, at p 2648, supra).


Turning to the question of whether the Association actually owed the plaintiffs a duty of fair representation, defendants first argue that the plaintiffs “were not part of the <mask> at the time the professional agreement was negotiated” and therefore were not entitled to representation by the Association or to complain that they were denied the retroactive benefits. While it is true that the plaintiffs were no longer employed by the District at the time the District and Association finally concluded their negotiations regarding the 1999-2003 contract, the defendants’ statement is misleading. The plaintiffs were part of the bargaining unit and arguably entitled to fair representation during part of both the negotiations and the 1999-2003 contract period for which they are demanding the same retroactive increases as the employees who remained in May 2001. Defendants may not simply ignore the plaintiffs’ claim for fair representation during the period of time that the plaintiffs were represented by the Association.


Three separate grievances were presented to the arbitrator (Robert F. Koretz, Professor of Law, Syracuse University), all were heard on March 22, 1962, and the arbitrator’s opinion and awards were issued May 3, 1962. He found that the company violated paragraph 151 of its contract by assigning ‘ ‘ normal duties ” of a laid-off employee to non<mask> employees. However, the arbitrator also found that the company did not violate that paragraph by assigning work of a type “ customarily performed ” by nonunit employees to such persons. Petitioner objects to the second finding, saying the arbitrator modified paragraph 151 by using the words “ customarily performed ” in violation of paragraph 38 of the contract. The union contends further that the arbitrator imported an exception to paragraph 151 not covered by the agreement since nowhere in paragraph 151 is there authority for permitting nonbargaining unit persons to perform bargaining unit work merely because it is work which has been “ customarily performed ” by nonunit persons. Petitioner relies on Simons v. Publishers Assn. of New York City (94 N. Y. S. 2d 362 [Sup. Ct., N. Y. County, 1949]).


Moreover, the company’s contention that its contract with the Union makes no provision for arbitration in the present circumstances must be sustained. Article II (a) of the labor contract expressly excludes as employees thereunder “ all other employees such as office and clerical employees, foremen and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action.” It is not disputed that a tour boss (permanent position) is such an excepted employee. In article XV of the agreement, concerning transfers of employees it is provided in section 5 that “ Transfers from positions in the <mask> to positions outside the bargaining unit shall be the sole prerogative of the Company ”, and it further provides that any transferred employee shall have the right within six months to be retrans*348ferred. Even with respect to transfers within the bargaining unit (art. XV, No. 2-A) the company has the right “ to make the same effective, subject only to review under the grievance procedure if it acts in an unreasonable manner and without any justification ”; and the Union makes no claim herein that the company has acted unreasonably or without justification.


PERB concluded that the acting director had "properly stated and applied the Taylor Law”. In so doing, it stamped its approval on four findings of the acting director: "that the passage of the Resolution does not, per se, constitute a refusal to negotiate in good faith”; that whether a particular job title "is or should be included in a negotiating unit is a permissive rather than a mandatory subject of negotiations”; that the "inclusion of a recognition clause in an existent contract does not enlarge the scope of mandatory negotiations or impose upon the respondent an obligation to either rescind its resolution or negotiate with the charging party concerning the changes made”; that, if an employer during the challenge period alters a <mask> it had voluntarily established by recognition, the remedy, if any, lies in a timely filed representation petition.


Based upon the plaintiff’s complaint, the court decides that it is premature to rule on a motion to dismiss whether or not the express language of the 1982-1985 agreement between the State of New York and the State-wide Collective <mask> represented by CSEA, Inc. contains evidence of any intent to benefit a third party, to wit: county employees such as the decedent.


*1224The remedy formulated by the administrative law judge directed Grower to cease and desist from failing to provide information and from failing to bargain. He also directed Grower to make information available to the Union and to make the <mask> members whole for all losses in wages and fringe benefits they reasonably suffered as the result of Grower's refusal to bargain, for the period of September 27, 2012, to May 24, 2013 (i.e., the date of the first mandatory mediation session), plus interest.


Within days, the PERB issued its new decision. Consistent with the directions on remand, the PERB acknowledged it had in State Personnel Board found the State Personnel Board subject to section 3519 as a "state" entity "in certain circumstances." (Citing State Personnel Board , supra , *818PERB Dec. No. 1864-S, p. 23.) Under the facts of the present case, the State Personnel Board had adopted uniform regulations for all employees in the civil service, not limited to its own employees or any other *592particular <mask>. A duty to meet and confer in these circumstances with the 21 represented units would be antithetical to the need for uniformity. Therefore, the State Personnel Board was acting in its regulatory capacity, not as an employer, and was not subject to section 3519. As a result, the PERB dismissed the charge.


On or about June 27, 1973 the county and the CSEA entered into the current labor contract covering the terms and conditions of employment of all employees of the county within the collective <mask> for the period commencing January 1, 1973 through and including December 31, 1974. The contract continued in effect many of the terms and provisions of prior labor contracts between the parties and more specifically the "graded service salary plan” (the plan) which was enacted into local law as the same was thereafter amended from time to time.


The fact that the MOU was approved by the Legislature and enacted into law distinguishes this case from Grier v. Alameda-Contra Costa Transit Dist. (1976) 55 Cal.App.3d 325, 127 Cal.Rptr. 525 ( Grier ), upon which plaintiffs rely. The plaintiff bus drivers and defendant transit district in Grier had negotiated a collective bargaining agreement providing that drivers who were late for work without a satisfactory excuse would serve "penalty point" duty under which they would wait in the dispatching area, without pay, until released for the day or assigned to a run. ( Id . at p. 329, 127 Cal.Rptr. 525.) The trial court concluded the transit district's labor relations were governed only by the Transit District Law applicable to the counties of Alameda and Contra Costa, which empowered the transit district to administer a personnel system adopted by the board of the district and to negotiate with a collective <mask> regarding wages, hours, and working conditions. ( *741Id . at pp. 331-332, 127 Cal.Rptr. 525 ; Pub. Util. Code, § 24501 et seq. ) This division of the First Appellate District disagreed. While statutes governing other transit districts contained language that the districts' bargaining powers were not "limited or restricted by the provisions of ... other laws or statutes" ( Grier , 55 Cal.App.3d at p. 332, 127 Cal.Rptr. 525, italics omitted), the Legislature omitted this language from the provisions governing the Alameda-Contra Costa County Transit District. The court therefore concluded the Legislature did not intend the district's labor relations to be governed only by the applicable Public Utility Code provisions, but rather, that the district's rules and regulations, "including those adopted by a resolution approving a collective bargaining agreement, must themselves be promulgated subject to the limitations and restrictions of other applicable laws." ( Id . at p. 333, 127 Cal.Rptr. 525.) Grier *1273does not stand for the proposition that a labor agreement approved by the Legislature is subject to inconsistent labor laws of general application.


On May 16, 1990, a petition for certification was filed by the United Food and Commercial Workers District Union Local One AFL-CIO/CLC (the Union) with the respondent New York State Public Employment Relations Board (PERB). The Union applied to represent, for collective bargaining purposes, a proposed negotiating unit consisting of employees of the petitioner Mohawk Valley Nursing Home, Inc. (the Nursing Home) located in Ilion, New York. On July 2, 1990, the Union and Nursing Home entered into a consent agreement defining the proposed <mask> and providing for a secret ballot election. The agreement, in pertinent part, called for the election to be conducted "at a time and place to be fixed by the [PERB] Director or the Director’s agent, in accordance with the procedures and policies of the Board”. Eligible voters were defined in the agreement as those "who were in the employ of the Employer [the Nursing Home] on June 29, 1990, and who are so employed on the date of the election”.


Although the Board has been consistent in limiting the concept of abandonment by a certified bargaining representative to disclaimer and defunctness, there remains unsettled questions of law about the concept of abandonment and the circumstances in which a labor organization is deemed to have lost its certification. Part of the uncertainty exists because the concept of abandonment was not expressed in the Agricultural Labor Relations Act, but has been recognized by the Board. The uncertainty surrounding the concept is further demonstrated by the fact that an issue currently pending before the California Supreme Court is whether an employer may oppose a certified union's request for referral to mandatory mediation by asserting the union abandoned the <mask>. ( *37Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2015) 236 Cal.App.4th 1024, review granted Aug. 19, 2015, S227243.)


Pursuant to Insurance Law § 4402 (a), the fund constitutes an employee welfare fund and defendants are fiduciary trustees of that fund for all assets received, managed or disbursed by them, or under their authority (see Insurance Law § 4412 [a]), and having the general power of administration there over. (See Insurance Law § 4402 [c].) While defendants correctly note that there is no reported New York State decision finding either a statutory or common-law fiduciary duty for the trustees prohibiting the alleged act of self-perpetuation, and that the sole statutory duty imposed is only financial in nature, this court does not agree that no viable cause of action for breach of fiduciary duties can be stated against trustees who attempt to entrench themselves in power and thereby effectively exclude oversight of their actions. New York law requires trustees to owe beneficiaries “a duty of loyalty and are required ‘to administer the trust solely in the interests of the beneficiaries.’ ” (Aspro Mech. Contr. v Fleet Bank, 1 NY3d 324, 330 [2004] [citation omitted].) Thus, where trustees, as here, have implemented amendments which essentially insulate the trustees from responsibility for failing to carry out their fiduciary duties and place them beyond the oversight of the <mask>, this court agrees with at least one lower federal court decision which had granted a preliminary injunction in favor of the *486union and against the trustees upon an analysis analogizing the same facts to a line of ERISA cases, and having found that upon the mere enactment of such amendment the trustees may be held liable for violating their fiduciary duty to the trust. (See Rosenthal v Roberts, US Dist Ct, SD NY, Aug. 13, 2004, Cote, J.) Accordingly, the motion to dismiss for failure to state a cause of action is denied.


Prior to the expiration of the collective bargaining agreement in June, 1959, the union contended that “ selecting ” work, which was then being performed by independent contractors, was within the scope of the <mask> and therefore was properly work which should be performed by members of respondent union. The company refused this request and a six-week strike ensued, in which this dispute was a principal issue. There*562AÍter, á new contract was signed which gave to 'réspóndetit unión the right to perform séleéting work "as of Séptember, 1960.


The statutory authority for defendants’ argument that plaintiffs’ rights evaporated as soon as they retired is not explicit. Civil Service Law does not specifically terminate all existing union obligations to individual employees in its <mask> at the moment that the employee ceases to be employed. Thus the issue of whether the Association owed any duty to plaintiffs when the District and Association finished negotiating a contract after the plaintiffs retired requires more than pure statutory construction (Matter of Gruber [New York City Dept. of Personnel — Sweeney], 89 NY2d 225, 231-232). Consequently, PERB’s analysis is not entitled to the same deference as is normally afforded the interpretation of a statute by an administrative body charged with the duty of interpreting its provisions (Appelbaum v Deutsch, 66 NY2d 975, 977; Matter of Cathedral of Incarnation v Glimm, 61 NY2d 826, affg 97 AD2d 409, 410; Matter of Burke v Denison, 218 AD2d 894, 895-896).


In assessing the validity of PERB’s analysis it must be conceded that the general proposition that unions usually have, no duty to represent those who are outside the <mask> *120logically follows from the union’s statutory obligation to represent employees in the bargaining unit. While PERB’s conclusion is logical in many situations, there are necessary exceptions. Among the exceptions which the courts have already recognized is that an employer cannot extinguish an employee’s rights to fair representation by simply terminating the employment (Baker v Board of Educ. of W. Irondequoit Cent. School Dist., 70 NY2d 314, 323; Matter of Hall [State of N.Y. (Dept. of Envtl. Conservation)], 235 AD2d 757; Matter of County of Schenectady [Lainhart], 177 AD2d 826, 827). Even PERB has acknowledged that there must be exceptions to its general rule. When an employee’s employment relationship is severed, the union’s representation duties to that former employee do not end “in circumstances in which the severance from employment is being contested or there is some other basis upon which to conclude that there is a continuing nexus to employment notwithstanding the individual’s relinquishment or loss of employment” (Matter of Bartolini v Westchester County Correction Officers’ Benevolent Assn., Inc., 30 PERB ¶ 3075; Matter of Heady v County of Dutchess, 31 PERB ¶ 3068).


On September 10, 2015, the Board issued Arnaudo Brothers, LP and Arnaudo Brothers, Inc. (2015) 41 ALRB No. 6 (Arnaudo II ) in which a majority affirmed the administrative law judge's ruling, findings and conclusions in full. The concurring and dissenting opinion of one Board member agreed with rejecting the claim that the Union disclaimed interest in representing the <mask>, agreed with awarding a make whole remedy, but provided additional grounds for why the make whole remedy was appropriate.