Jeremiah J. Leffew and his wife, Micheline N. Leffew, were convicted following a jury trial in the Arenac Circuit Court of first-degree home invasion and third-degree home invasion, respectively. Defendants went to the home of Michael Porter with Jeremiah’s mother, Donna Knezevich, to pick up Lisa Seibert, Knezevich’s partner. Seibert had been staying with Porter following an argument between Seibert and Knezevich, but the two had reconciled and Seibert had asked to be picked up and driven home. When defendants and Knezevich arrived at Porter’s residence, Porter briefly answered the door before closing it; Seibert did not leave. Defendants and Porter disagreed as to whether Porter had prevented Seibert from leaving the home. Defendants testified that Porter had dragged Seibert into a room in the back of the home and forcibly held her down in a chair, while Porter claimed that he had picked Seibert up and put her in a chair to help her get her bearings after she had become unsteady on her feet. Both defendants testified that they heard Seibert scream for help and that they had then entered the home without Porter’s permission. Micheline had entered the home first after kicking in the back door, and she was immediately hit over the head with a glass ashtray by Porter, causing bleeding and a seizure. Jeremiah entered the home after seeing his injured wife on the floor and got into a physical altercation with Porter. The fight eventually ended when, according to Jeremiah, he threatened Porter with a knife while pleading with him to let his family go; or, according to Porter, the fight ended when Knezevich called out to Jeremiah, after Jeremiah had struck Porter with a knife and cut Porter’s wrist. Defendants’ attorneys both argued that defendants’ intrusions into Porter’s home were justified because of their reasonable fear that Seibert was in imminent danger, but neither attorney requested a jury instruction on <mask>. Defendants appealed, and the Court of Appeals consolidated defendants’ cases. The Court of Appeals, BOONSTRA, P.J., and TUKEL, J. (LETICA, J., concurring in part and dissenting in part), affirmed defendants’ convictions. Defendants sought leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral argument on whether to grant the applications or take other action. The Supreme Court directed the parties to file supplemental briefs addressing whether the defense-of-others justification was applicable to defendants’ charges and whether the defense attorneys were ineffective for failing to request an instruction on defense of others. 506 Mich 1031 (2020). In a unanimous opinion by Chief Justice MCCORMACK, the Supreme Court, in lieu of granting leave to appeal, held :


The section is broad and covers mistake of fact for the entire article 35, including <mask>. By eliminating mistake of fact from the defense of justification, the Legislature overruled Young (supra). It could not have been the intent of the Legislature to have the word "actor” in Penal Law § 35.15 (1) (b) refer to the person being defended.


Moreover, Anthony contends he had a right to defend Brandi against Chief Pearsall. We note Anthony also asserted this argument at trial, requesting a jury instruction for the <mask>. However, the trial court rejected the instruction, stating “the issue of what’s lawful is whether it was a lawful arrest or an otherwise lawful act by the officer[,]” and not in the first instance whether Anthony’s conduct was lawful. A claim of “defense of others first requires that a defendant has acted in response to an assault.” Detroit v Smith, 235 Mich App 235, 238; 597 NW2d 247 (1999).2 “An arrest can be an assault if the arrest is illegal.” Id. As stated, the evidence


What impact did the 1968 amendment have on the relationship between the justification sections and the penal sanctions against reckless and negligent conduct? Prior to 1968 the statutory provisions were in essential harmony. Civilians were limited in the use of deadly physical force to self-defense or <mask>. Therefore, civilians could not use such force solely in apprehending an individual or preventing an escape and thereby avoid criminal responsibility, even if the conduct was reckless or negligent rather than deliberate. Peace officers could use deadly physical force to make certain arrests or prevent certain escapes, but were liable for reckless or criminally negligent conduct with respect to innocent persons.


On August 24, 2016, Taylor filed a motion to dismiss the indictment, claiming that he was immune from prosecution under the provisions of KRS2 503.085(1), which provide immunity to persons who use force in self-defense or in <mask> -- unless there is probable cause to believe that the use of force was unlawful. Taylor argued that the facts and circumstances of the case did not establish probable cause to believe that he acted unlawfully in defending himself. Following a hearing, the trial court disagreed and denied the motion.


[¶8] Bolinske Sr. argues the district court should have given his proposed instructions on excuse, mistake of law, <mask>, force to protect, and coercion. In reviewing the jury instructions as a whole, they fairly and adequately instructed the jury of the applicable law. Bolinske Sr.’s proposed instructions pertained to inapplicable defenses. Thus, the district court did not err in refusing to give Bolinske Sr.’s proposed jury instructions.


1. Under the defense-of-others doctrine, a person may use force in defense of another when they reasonably believe that the other is in immediate danger of harm and force is necessary to prevent the harm; deadly force is permissible to repel an attack that reasonably appears deadly. Although the Court of Appeals expressed skepticism that <mask>, which was traditionally used to excuse assaultive conduct, was available as a defense to a nonassaultive offense, Michigan courts have recognized the application of defense of others to nonassaultive crimes, including in People v Dupree, 486 Mich 693 (2010). Dupree held that self-defense was applicable to the nonassaultive offense of being a felon in possession of a firearm. The Court of Appeals distinguished Dupree on the basis that it was decided before the effective date of the Self- Defense Act (SDA), MCL 780.971 et seq. But this analysis misread Dupree and the SDA. The act expanded the ability to invoke the affirmative defenses of self-defense and defense of others. Section 4 of the act, MCL 780.974, specifically preserves the common-law right of an individual to use force in self-defense or in defense of another person, and § 2, MCL 780.792, removes the traditional common-law duty to retreat so long as the person asserting the affirmative defense was not committing a crime and had the legal right to be where they were when they used force. Although § 2 could appear to preclude defendants’ rights to assert defense of others because they entered Porter’s home without his permission, § 2 was not relevant here because it is a statutory precondition to standing one’s ground under the SDA, which is a right that defendants did not invoke. The applicability of defense of others must be determined on the particular facts of each case, not on the charges brought by the prosecution, and defense of others was available in this case to defendants in response to the nonassaultive home-invasion charges.


Although Bembeneck testified that he hit Brian because he saw Brian hit Rosinski in the face, the prosecution provided ample evidence to disprove Bembeneck’s claim of <mask>. Brian testified that at the time he was struck, he had his cell phone out and had his head down because he was attempting to contact law enforcement. Furthermore, Brian was not armed with any sort of weapon when Bembeneck assaulted him. See Stevens, 306 Mich App at 630. The jury was able to view photographs of the wounds on Brian’s head. To the extent that Bembeneck argues that the jury simply should not have believed the prosecutor’s version of the events and should have concluded that he struck Brian to defend Rosinski, this Court resolves all conflicts of the evidence in favor of the prosecution when the sufficiency of the evidence is challenged. People v Harrison, 283 Mich App 374, 377-378; 768 NW2d 98 (2009). We also do not second-guess jury determinations regarding the weight of the evidence or the credibility of the witnesses. Unger, 278 Mich App at 222. Thus, we defer to the jury’s determination that Bembeneck did not act in Rosinski’s defense and conclude that the prosecutor presented sufficient evidence to support Bembeneck’s conviction of felonious assault as to Brian.


3. Error does not result from the omission of a jury instruction as long as the instructions as a whole cover the substance of the missing instruction. Micheline’s jury was instructed that it could only convict her if it found that she had destroyed Porter’s property “knowing that it was wrong, without just cause or excuse.” The Court of Appeals concluded that the lack of a defense- of-others instruction did not prejudice Micheline because the verdict indicated that the jury rejected the theory that she was justified in her actions and a defense-of-others instruction would not have altered the jury’s conclusion. However, if defense counsel had requested a defense-of-others instruction, the trial court would have explained to the jury, in part, that if Micheline had acted in lawful <mask>, her actions were justified and she was not guilty of home invasion. Further, the “without just cause or excuse” language in the instruction for malicious destruction of property offered no guidance about what constituted “just cause or excuse” and was inadequate to explain why Micheline’s conduct could be excused. The defense-of-others instruction would have explained to the jury that the circumstances described by Micheline were defined as just cause under the law, and the jury could then have decided whether the prosecution proved beyond a reasonable doubt that Micheline’s belief that her conduct was necessary to protect Seibert was not reasonable. A defense-of-others instruction also would have provided jurors a framework for how to judge Micheline’s conduct given the differing accounts of the incident. Specifically, the instruction would have explained that the jury could consider how the circumstances had appeared to Micheline at the time of the incident and that as long as her belief was reasonable and honest, it did not matter if Seibert had not, in fact, been facing imminent, unlawful force. There was a reasonable probability that the jurors concluded that Seibert was not in imminent danger without understanding that what was important was Micheline’s perspective. Similarly, the instructions given to Jeremiah’s jury for first-degree home invasion and felonious assault did not inform the jury that the law excused Jeremiah’s conduct if he reasonably and honestly believed that Seibert or Micheline was in danger. This omission was prejudicial, and moreover, Jeremiah conceded the elements of the home-invasion charge on the basis of his argument that he was acting to protect others. If the jury had been told that the law supported his defense, a different outcome was reasonably probable.


The really most important question in this ease is, whether there was evidence against the accused sufficient to justify a conviction. He was convicted as <mask>. The evidence against him was purely circumstantial. We have examined it with great care, and have reached the conclusion that it was sufficient to justify the court in submitting the question of the prisoner’s guilt to the jury.


From the evidence it is clear that the only reasonable conclusion to be drawn is that Police Officers Wheelwright and Sorger conspired with the defendant not to arrest the woman referred to in the indictment as Jane Doe. In the criminal arrangement to aid the defendant in liberating this woman, these officers must be condemned as accomplices as a matter of law. Their misconduct brings them within the generally accepted test that “ To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an <mask>. To warrant such a conviction the one accused must have taken part in the perpetration of, or preparation for, the crime, with intent to assist in the crime. Every act which may have a tendency to assist in the perpetration of the crime is not, of absolute necessity, criminal. Before it will have that effect it must have been done with the intention on the part of the actor that it shall aid in the commission of the crime.” *208(People v. Zucker, 20 App. Div. 363, 365, 154 N. Y. 770; People v. Bright, 203 id. 73; People v. Sweeney, 213 id. 37; People v. Swersky, 216 id. 471; People v. Cohen, 223 id. 406; People v. Doyle, 107 Misc. Rep. 268.)


It must be assumed that there was no unlawful dissection authorized or carried forward by the coroner (Rhodes v. Brant, 21 Hun, 1), and that the coroner had a discretion “ to determine whether any persons, and what persons, may be present besides the surgeons.” (Crisfield v. Perine, 15 Hun, 202; S. C. affirmed, 81 N. Y., 622.) In that case it was said: “Not even the jurors have a right to witness the examination. They are to be informed of what it discloses by the testimony of the surgeons.” We do not understand that the trial judge indicated that there had been any unlawful *48dissection of tlie body of tlie deceased. Assuming, pursuant to section 29 of tlie Penal Code, that the defendant was a principal, or, as the law stood before the adoption of that section, an <mask>, it is claimed that she was guilty of the crime of body stealing, in that she induced or procured the coroner to commit that crime.


It is also true that one does not become an <mask> by the mere approval of a crime. “ Enough must be shown to justify the inference that the offender has counseled or induced or encouraged the crime.” (Penal Law, § 2; People v. McGuire, 135 N. Y. 639, 642, 10 N. Y. Crim. 230; People v. Swersky, 216 id. 471, 476, 34 N. Y. Crim. 169.)


The purpose of section 2 of the Penal Law was to abolish the common-law distinction in felony cases between a principal and an <mask>. As to misdemeanors, it merely expresses the common-law rule in that type of crime ‘as do sections 27 and 1936 of the Penal Law. (People v. Bliven, 112 N. Y. 79, 82-83.) It is significant to note that the offense of disorderly conduct was at one time a misdemeanor under our statutes. (Penal Code, § 675; L. 1881, ch. 676, as amdi) A portion of this Penal Code, section 675, is continued in our Penal Law, section 43, which provides that the commission of any lawful or wrongful act seriously disturbing or endangering the public peace is a misdemeanor. Disorderly conduct in the immediate view and presence of our State Legislature is also a misdemeanor. (Penal Law, § 1321.)


It is undeniable that without Daniello’s testimony the defendant’s conviction would have been impossible. There is no attempt to dispute the fact that it was his confession that caused the conviction. He is repeatedly referred to in the district attorney’s brief as the “ principal witness for the prosecution.” He was regarded for all purposes of the trial as an accomplice both in law and in fact. The trial justice, in charging the jury, said: “ There is no question about his being an accomplice, if you believe what he says, because he says he is, and that settles that point. ” Daniello, having turned state’s evidence, later, with consent of the district attorney, took a plea and was released, at the request of the district attorney, under a suspended • sentence. The rule as to who may be regarded as an accomplice is thus stated in People v. Sweeney, 213 N. Y. 37, 46: “ To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as a principal or as an <mask>. (People v. Zucker, 20 App. Div. 363, 365; affd., on opinion below, 154 N. Y. 770; People v. Bright, 203 N. Y. 73, 79.) ” Assuming, therefore, that Daniello was an accomplice within the meaning of the statute next referred to, what was the effect of such complicity upon his evidence? Section 399 of the Code of Criminal Procedure reads as follows: “A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”


Where there is no conflict in the evidence or it is not susceptible of two different constructions, the court must determine as a matter of law whether a witness is or is not an accomplice; *246but, if the testimony raises a question of fact as to whether a witness is or is not an accomplice of the defendant in the commission of a crime, that question must be submitted to the jury for determination. People v. Sweeney, 213 N. Y. 37, 46. It is well settled that in order to constitute an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as a principal or as an <mask>. A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and a person who directly or indirectly counsels, induces or procures another to commit a crime is a principal, as defined by section 2 of the Penal Law, and is therefore an accomplice. The failure to disapprove or the mere approval of a crime after the event, or even before the event, may not of itself be sufficient to constitute one an accomplice. Some act or word of counsel, inducement, encouragement, participation or procurement must be added to passive acquiescence. It is clear that one cannot be made an accomplice from the mere fact that he is asked by another for a bribe, but his subsequent conduct upon the making of such suggestion may indicate that he is or is not an accomplice. As was stated by Justice McLaughlin in People v. Hyde, 156 App. Div. 618, at page 625: “ the person to whom the officer is made, if he rejects it, is clearly not an accomplice.” If, on the other hand, he undertakes negotiations or by counsel or act furthers the suggestion, with intent to participate in the crime, he would be an accomplice.


Before analyzing this evidence with a view to testing its sufficiency in the light of the quantum of the proof required and the points to which that proof must go, time will be saved by considering at the threshold whether or not on the felony charge Cartwright is to be considered as an accomplice of the defendant, for upon the decision of that question depends in part the quantum of proof, if any, required outside of the evidence of Cartwright. “ An accomplice is an associate in crime, a partner or partaker of the guilt, any participant in an offense.” People v. Winant, 25 Misc. Rep. 361, 363, Dickey, J. “ One culpably implicated in the commission of the offense.” People v. Vedder, 98 N. Y. 630. “ An accomplice is a person involved, either directly or in*120directly, in the commission of a crime. To render him such he must in some manner aid or assist or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other party by reason of the criminal transaction.” People v. Smith, 1 N. Y. Crim. Rep. 72, 75, Daniels, J. “ To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an <mask>. To warrant such a conviction the one accused must have taken part in the perpetration of or preparation for the crime, with intent to assist in the crime.” People v. Zucker, 20 App. Div. 363.


The particular crime for which defendant was indicted, and of which he was convicted, was the participation, as an <mask>, in the setting fire to a dwelling house, the actual incendiary being one Isadore Stein, a self-confessed “fire bug,” and the property intended to be consumed as a basis for a claim belonging to one Abraham Sliten.


She admitted that after the perpetration of the crime she went to Boston and lived with Errico on the proceeds thereof. The district attorney claimed that such facts, after the event, did not make her a principal and an <mask> or an accomplice. He claimed that at best she was an accessory after the fact, and that she could not have been convicted, if indicted herself, for forgery or uttering.


That there have been cases in which accomplices have been thus admitted, is nót denied; and that of the negro Jack, already iñentióned as one of them. Jack had been convicted as á principal felon in the murder of one Richard Jennings, and before sentence, was called as" a witness for the péople on the trial of David Conkling, as an <mask> of the same murder. No question arose as to his competency, nor does it distinctly appear from the printed report óf the trial, that any motion was made oñ the one side, or objection oñ the other, as to the character and circumstances uhdef which he Was called to testify. He seems to have beén admitted by universal consent, and it was even proposed by the counsel for the prisoner that he should he examined without oath; but the learned judge who presided at the trial, directed him to be sworn-, and admonished him that he should nót expécí or hope for pardon, though he should disclose all that he knew. But whether he were *permitted to testify by consent of all parties, or at the discretion of the court alone, is not material; he testified at all evénts in the charactér of an accomplice, *751and it is very clear from the circumstances of the case that he was properly admitted. They were these : David Conkling and James Teed, who were both accessories before the fact in the murder of Richard Jennings, were brothers in law. Teed was the nephew of the deceased, and Conkling had married the sister of Teed. They had a controversy with Jennings respecting some land in which the latter prevailed ; and hence an animosity arose between the parties which eventuated in the murder of the uncle. To effect this, Jack, who was the servant of Conkling, was used as an instrument. He was ignorant and brutified, both from his condition and his habits. Having been supplied with liquor, to which he was addicted, and bribed by the promise of a large sum of money, and a safe conveyance out of the country beyond the pursuit of justice, he undertook and partially accomplished the work proposed to him by his master; and having shot the deceased without mortally wounding him, and having been present when Jennings was dispatched with a club by one Dunning, another of his associates, he was technically a principal in the murder, and as such was he indicted, tried and convicted; whilst Conkling, who, together with Teed, was a chief contriver and instigator of the whole affair, and directly interested in the destruction of Jennings, was technically an accessory: but the negro had not much more moral agency in the transaction than the musket in his hand; and his moral guilt, in comparison with that of his master, was scarcely greater. Under such circumstances he was called and admitted as a witness ; and on his testimony, corroborated by other evidence, was Conkling as well as Teed and Dunning convicted. The two latter were executed; the punishment of Conkling was commuted, by special act of the legislature, to imprisonment for life, and Jack was pardoned on the like condition. (L. N. Y. sess. 42, ch. 51.)


Moreover, some sister states have partially or completely exempted a defendant from accessory liability where the person who the defendant assists is a close family member. (See, e.g., Mass. Gen. Laws, ch. 274, § 4 ["Whoever, after the commission of a felony, harbors, conceals, maintains or assists the principal felon or <mask>, or gives such offender any other aid, knowing that he has committed a felony or has been accessory thereto before the fact, with intent that he shall avoid or escape detention, arrest, trial or punishment, shall be an accessory after the fact.... The fact that the defendant is the husband or wife, or by consanguinity, affinity or adoption, the parent or grandparent, child or grandchild, brother or sister of the offender, shall be a defence to a prosecution under this section"]; Fla. Stat. § 777.03 ["Any person not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, who maintains or assists the principal or an accessory before the fact, or gives the offender any other aid, knowing that the offender had committed a crime and such crime was a third degree felony ... with the intent that the offender avoids or escapes detection, arrest, trial, or punishment, is an accessory after the fact"].)9 California obviously has no similar exemption, and I do not argue it should. But we as a court should be especially wary of rendering a decision that makes this state a marked outlier, particularly when we have not considered all of the circumstances in which the more severe punishment of the accessory statute might be used in place of the established contempt statutory scheme (e.g., for a defendant who declines to incriminate his or her child when subpoenaed to testify).


To constitute an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as the principal or as an <mask>. To warrant such a conviction the one accused must have taken part in the perpetration of, or preparation for, the crime, with the intent to assist in the crime. (People v. Zucker, 20 App. Div. 363; affd., 154 N. Y. 770; People v. Cohen, 223 id. 406; People v. Reddy, 261 id. 479.) The witness Gleason, according to his own testimony, actually took part in this crime, for he himself, if we are to believe his testimony, carried the liquor in question from the defendant and handed it through the bars on the second floor of the county jail to a prisoner by the name of Rutledge. He is, *31therefore, an accomplice as a matter of law and his testimony must be corroborated.


I am wholly unable to subscribe to this proposition. Mancini, as will be seen, was indicted as a principal for the murder of Ferrazano, who was one of the six men whose death was the object of the conspiracy. If a conspiracy were entered into either for the purpose of effecting, or resulting in, the murder of six persons, and three of them were murdered by different members of the criminal conspiracy, all the conspirators are liable as principals for the commission of each murder. If it be true that a criminal conspiracy to commit these murders was formed and that Mancini aided or abetted in their commission, he was “ concerned in the commission ” of all the crimes, whether present or absent when each crime was committed. He thereby became an <mask> and liable asa“ principal ” even though he did not actually participate in any of the homicides. Penal Law, § 2.


*499What is the test to he applied to determine whether a person is an accomplice ? The courts have repeatedly held that: “ To constitute an accomplice one must he so connected with a crime that at common law he might himself have been convicted either as the principal or as an <mask>.” (People v. Zucker, 20 App. Div. 363, 365, 14 N. Y. Crim. 464, 154 N. Y. 770; People v. Sweeney, 213 id. 37, 46, 13 N. Y. Crim. 232; People v. Bright, 203 N. Y. 73, 79, 26 N. Y. Crim. 277; People v. Swersky, 216 id. 471, 476; People v. Hyde, 156 App. Div. 618, 625, 29 N. Y. Crim. 574.)


Under the authorities, to constitute an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as a principal or as an <mask>. “ He must be shown to have counseled, induced or encouraged the crime.” (Judge O’Brien, writing for the court in People v. Clougher, 246 N. Y. 106, at p. 111.) The question, therefore, presented is whether there is evidence in this record to sustain the conviction if Dell’Osso had been convicted for bribing the defendant. The evidence shows what sort of man Dell’Osso was, his relations with Ferrari and to the banks of Ferrari. Dell’Osso had never worked for any of the banks belonging to *218Ferrari, nor for the City Trust Company. He had never been anything more than a small depositor in the banks of Ferrari. He was a faithful body servant of Ferrari, a messenger for him. At the times in question he Was superintendent of a building owned by Ferrari, where he had charge of the elevatormen, the payroll and occasionally ran the elevator. Dell’Osso had visited the Harlem branch of the bank many times and a few times the Atlantic Avenue branch. He had an account in the Harlem branch, the average balance of which was about $500. He also had a very insignificant balance in his checking account at the City Trust Company and twice or more he had closed this account. Upon the evidence in this record no conviction of Dell’Osso for counselling, inducing or encouraging the crime of bribing this defendant as Superintendent of Banks in return for an agreement not to examine the City Trust Company could be upheld, and hence he was not an accomplice.


The act imputed to Bush was no doubt an attempt to commit an offence. It is admitted that heSndeavored to make himself an <mask> ■, and to become an accessory is, in itself, an gffence. A mere solicitation to commit a ‘ felony is an ¿ffence, whether it be actually committed or not. This was held in The King v. Higgins, (2 East, 5.) In the case before us there was more. The solicitation was followed by furnishing the instrument of mischief. The question of principal and accessory does not arise, as it would have done provided the crime had actually been committed. Had it been Committed, the attempt would have been merged in an actual felony—a crime of another species. There would have been a principal arson by Kinney and an accessorial offence by Bush. The attempt of the latter was to have both crimes committed ; and the question bf principal and accessory not being in-the case, I see nothing against considering the matter in the light of the ordinary rule, that what a man does by anoth- ' er he .does by himself; in other words, the course taken to" / commit the arson by the hand of Kinney, was the same thing, in legal effect, as if Bush had intended to set the fire personally, and had taken steps preparatory to that end. An attempt may ' be immediate—an assault, for instance ; but it very commonly | means a remote effort, or indirect measure taken with intent to *136effect an object. An abundance of illustration will be found in The King v. Higgins, especially in the learned and copious arguments of the counsel. An approved writer on criminal law speaks of the act of solicitation in that case as belonging to the class of attempts. (1 Russ, on Cr. 49, Am. ed. of’36.)


As to the other appellants, the evidence of combination is overwhelming. The testimony of Hunter, as to the declaration of Griffeth, that he was afraid the respondent would return before the day of sale, and get the proceedings stayed, receives strong and ample confirmation from Griffeth’s whole subsequent conduct, and from all the circumstances in the case. It is the first glimmering we discover of the spirit and object with which the proceedings were conducted ; and makes him an <mask>, to all the subsequent acts of violence and oppression. It is followed up by an abandonment of all official discretion; and an entire submission to the plaintiffs in the execution. Instead of acting as the minister of the law, and guarding its precess against misapplication and abuse, he became the passive instrument of a party in the accomplishment of his illegal purposes. It was contended upon the argument, that he was not bound to incur the hazard of a suspension or adjournment of the sale, and that the law will not inquire into the extent of the hazard. Is it indeed true, that the law will not exercise a supervision or control over the discretionary acts of its ministerial officers ? That they are omnipotent and irresponsible in the exercise of the power entrusted to them ? “ It is a proposition,” as was once said by Ld. Hardwicke, “ too monstrous to be debated.”


In People v. Hyde (supra), the learned judge further said: “ The subject was discussed at some length by the Supreme Court of Massachusetts in Commonwealth v. Smith (11 Allen, 243), the question being whether a suborner of perjury was an <mask> of the perjurer. The court said: ‘ The crime of subornation of perjury is clearly in its nature that of an accessory before the fact to the perjury. Both perjury and subornation are felonies under our statute, being punishable by imprisonment in the State prison. * * * Whoever procures a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact, for it is not necessary that there should be any direct communication between the accessory and the principal. * * * And the accessory is a felon, though his felony is different in kind from that of the principal. * * * So it is said to be a principle in law which can never be controverted, that he who procures a felony to be done is a felon. * * * We cannot see that the application of these principles is changed when the crime of the accessory before the fact is made by statute a substantive felony. The object of making it a substantive felony may be either to provide a distinct or milder punishment upon conviction, or to authorize the indictment and conviction of the accessory where the principal has not been convicted.’


Clinton, J. At the close of the trial, I refused to charge, as matter of law, upon the evidence, that the indictment should have charged the prisoner as an <mask>, to a larceny of the mare by the witness, Close. I also refused to decide that “ the question as to whether Close was a guilty party, ought not to be submitted to the jury;” or, in other words, was a question for the court. I refused to- decide “ that, inasmuch as the evidence implicated Close, the prisoner ought not to be put upon his defence, in the absence of affirmative proof on the part of the People, of the innocence of Close;” or, in other words, I refused to'adjudge him guilty as a principal. I did, “ among other things, charge the jury that they were to determine, upon the evidence, whether or not the witness, Close, was an innocent agent of the prisoner in taking the horse; that if they so found, and if they further found a felonious intent upon the part of the prisoner,” in the taking by Close, “ he could be convicted on the indictment; but if they found that Close had a knowledge of the prisoner’s said felonious intent, then their verdict should be not guilty.” In this I can see no error prejudicial to the prisoner.


The defendant as an exclusive bargaining agent had a statutory duty to fairly represent the plaintiff in the enforcement of the collective bargaining agreement. "A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective <mask> is arbitrary, discriminatory, or in bad faith.” (Vaca v Sipes, 386 US 171, 190.) Defendant claims that since it acted in good faith it has not violated its duty of fair representation and that negligence alone is not sufficient to sustain a claim for breach of fair representation.


In determining a mandatory subject for bargaining the *823courts have drawn the distinction between a decision which in effect changes hours, wages and conditions of employment and a basic policy decision that does not touch hours, wages and conditions of employment. The former must be reached through negotiation; the latter need not be negotiated (Matter of City of Albany v Helsby 48 AD2d 998, affd 38 NY2d 778, supra; Matter of City School Dist. of City of Oswego v Helsby; 42 AD2d 262; Matter of Lippmann v Delaney, 48 AD2d 913). In essence, PERB’s finding here is that a <mask> exists for the purpose of seeking favorable terms and conditions of employment (see Civil Service Law, § 201, subd 5) and that questions relating to the existence or composition of the bargaining unit do not of themselves reach the status of relating to terms and conditions of employment. We find this to be a reasonable, commonsense distinction. This is as it should be because the Taylor Act seeks to protect the rights of the public, the public employer and the public employees (Civil Service Law, § 200). It does not seek to protect bargaining units in matters divorced from the rights of its employee members.


The plaintiff sues Local 807 and the County of Chautauqua for the transfer in bulk to its sick leave bank of those sick leave credits which its members had contributed to Local 807’s bank or, in the alternative, to credit its individual members with the sick leave days they had contributed. Local 807 argues that individual rights to sick leave credits were extinguished when contributed and any rights to benefits were lost when the *470Sheriff’s Association members broke away from Local 807. Local 807 contends that it is entitled to the carry over of sick bank reserves from the old to the new <mask> despite the drastic change in its membership when the plaintiff was certified by the Public Employees Relations Board as a separate bargaining unit for most of the Sheriff’s Department employees.


UFT is the duly designated exclusive bargaining agent of classroom teachers. An agreement adopted as a result of collective bargaining exists between it and the Board of Education. Article 6 thereof provides for a procedure for the adjustment of grievances. Under it a teacher is permitted personally to present her grievances or to select a classroom teacher or a representative of UFT to represent her at the various stages of the grievance procedure. She may however not select as a representative an officer or executive board member, delegate, *16representative or agent of a minority organization, other than UFT, which exists for the purpose of dealing with school officials for the improvement of working conditions or the handling of grievances of employees in the <mask>. It also provides that nothing contained in the article should be construed to deny any teacher her rights under section 15 of the Civil Eights Law, the Education Law or under any applicable civil service laws and regulations.


Under section 1156.3, subdivision (e)(1) and (2), election objections may be sustained on the ground(s) that (i) any of the necessary substantive allegations in the petition were incorrect (i.e., peak employment requirement met, no election in past 12 months, no contract bar), (ii) the Board incorrectly determined the geographical scope of the <mask>, (iii) the election was not conducted properly, or (iv) misconduct "affecting the results of the election " occurred. Subdivision (e)(2) states: "... The board shall certify the election unless it determines there are sufficient grounds to refuse to do so." (Italics added.) We note that, under section 1156.3, the threshold number of signatures that should accompany an employee petition for an election (per subd. (a)(1), or whether that showing of interest was met, is not listed among the statutory grounds for challenging an election.)


PERB, in approving the designation of respondent as bargaining agent for all the teachers and other job classifications specifically named in the agreement, limited the authority of the respondent so as to require that it represent only those named *434in its certification and in the recognition clause of the agreement. I The demand for arbitration prepared by the respondent seeks to accrete persons employed as “deans” and “ department chairmen” to the group represented by respondent, so that it may act as their bargaining agent, upon the ground that they perform the same work as do the teachers and others represented by it. Both groups, however, are excluded in the recognition clause of the agreement entered into between petitioner and respondent, and in fact they are both represented by a unit known as ABAC, which unit has been recognized by petitioner as the <mask> for the supervisory employees of petitioner who are not represented by respondent.


As to the grievance, the SAC alleged that in accordance with the collective bargaining agreement (CBA) between MBUTA and MBUSD, on March 15, 2014, appellant filed a grievance alleging "violations of the CBA." In the grievance, attached as Exhibit E to the SAC, appellant stated that the alleged grievance occurred on February 5, 2014. The grievance is described as follows: "The Commission on Teacher Credentialing has taken steps to unfairly discipline me based on faulty information from a non-contractual evaluation. ... Mira Costa Principal Dr. Ben Dale erroneously allowed parents, students, the Athletic Director (a <mask> member) and anonymous members of the community to unfairly evaluate my performance on the baseball field. These procedures had a detrimental impact on my employment as a social studies teacher and were used to create a false report of my teaching and coaching practice. Evaluative data coerced from parents, current and former students and other anonymous individuals in this manner is at odds with the evaluative process prescribed in the [CBA] between MBUSD and MBUTA. Because of the District's adoption of the non-contractual evaluation procedures, the parents used the tainted data gathered to malign me to the CTC which is now withholding the renewal of my *1058credential and has issued an intent to suspend me for 30 days. I have suffered the loss of 6 months' salary and benefits as well as the loss of my good name and reputation." As remedies for MBUSD's contractual violations, Olson sought (1) a "letter from the MBUSD clearing me of any wrongdoing in my duties as a social studies teacher and as a 6th period baseball teacher," and (2) assignment to "a temporary paid position which does not require a teaching credential while I appeal my case with the CTC."


The critical question of fact before the arbitrator was whether * ‘ normal duties ’ ’ of the traffic co-ordinator had been regularly assigned to nonunit personnel. The arbitrator answered that such work was not encompassed by the prohibition of paragraph 151 against the assignment of “ normal duties ”. He concluded that certain duties of the traffic co-ordinator now performed by the shipping and receiving supervisor were duties which the supervisor had “customarily performed” in the past. From this he reasoned that these duties were not “normal duties ” of the traffic co-ordinator within paragraph 151 because they were “not distinctively” <mask> work.


towards everyone in the <mask> in both negotiation and administration of collective bargaining agreements. Case v. Hazelton Area Education Support Personnel Association, (PSEA/NEA), 928 A.2d 1154 (Pa. Cmwlth. 2007). A union breaches the duty of fair representation only if its actions are “arbitrary, discriminatory or in bad faith.” Dorfman v. Pennsylvania Social Services Union - Local 668, 752 A.2d 933, 936 (Pa. Cmwlth. 2000). Although evidence of discrimination or arbitrariness may support a breach of the duty of fair representation, bad faith is generally required. See Hughes v. American Federation of State, County and Municipal Employees Council 13, 629 A.2d 194, 195 (Pa. Cmwlth. 1993) (“A union will be liable for breach of a duty of fair representation only when bad faith on the part of the union is shown.”). Individual bargaining unit members have no absolute right to have their grievances arbitrated. Ziccardi v. Commonwealth, 456 A.2d 979, 981 (Pa. 1982). Rather, a union has broad discretion to determine whether to pursue a grievance to arbitration and has no duty to arbitrate every grievance. See Falsetti v. Local Union No. 2026, United Mine Workers of America, 161 A.2d 882 (Pa. 1960). A union’s decision not to pursue a grievance is never a breach of its duty of fair representation where it does not pursue the grievance because it is satisfied that the grievance lacks merit. Martino v. Transport Workers’ Union of Philadelphia, 480 A.2d 242, 247 (Pa. 1984). A wide range of reasonableness must be allowed to a bargaining representative in serving the unit it represents, subject always to good faith and honesty of purpose in the exercise of this discretion. See Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). A union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a wide range of reasonableness as to be irrational. See Air Line Pilots Association,


It has been declared, that where, as the court finds is the case here, the State has not occupied or pre-empted an entire field, a municipality which is empowered to act in that field may, in spite of general regulations by the State, adopt additional regulations or requirements not inconsistent with the State enactment, where warranted by special local conditions (see Matter of Kress & Co. v. Department of Health of City of N. Y., 283 N. Y. 55, 59). There would thus be nothing to prevent a municipality from attaching additional conditions to the availability of checkoff beyond those specified in section 93-b, as, for example, that the particular employee 'Organization be one that meets certain reasonable standards. Here the city has imposed the further condition that the dues to be deducted be for membership in the employee organization that has been duly selected as the majority representative for all the employees in the applicable <mask>. The imposition of that condition contravenes neither the letter nor the intent of section 93-b.


The affidavit of plaintiff’s president, Swayduck, sworn to July 22, 1964, states that plaintiff is a labor union whose ‘ ‘ membership consists of workers in the lithographic industry employed in Local l’s territorial jurisdiction”. Swayduck states that ALA is a federation of local unions (including Local 1) which represents lithographic workers; that “it has always been the fundamental policy of both Local 1 and the ALA to limit their organizational activities and their membership to workers engaged in the lithographic industry ’ ’. Sway-duck asserts that 1 ‘ the maintenance ' of this policy has been *112one of the major reasons for the success and strength of Local 1 and the ALA”. He claims that labor unions in competitive portions of the graphic arts field, such as the unions in the letterpress printing unit, have sought to challenge the right of lithographic workers to have their own union and that attempts by such competitive unions to incorporate the lithographic workers within their own unions have been almost entirely unsuccessful — the National Labor Relations Board having rendered hundreds of decisions ‘ ‘ upholding the right of lithographic workers to a <mask> of their own, separate and apart from all other workers in the printing industry ’ ’. Swayduck declares that the security of Local l’s members depends upon its continued existence as a union for lithographic workers only, because “ the economic structure of the printing industry is such that lithographic workers are normally outnumbered by non-lithographic workers in printing plants and shops ”. It is stated that if the N. L. R. B. refused to recognize the right of lithographers to their own bargaining unit in each plant, “ Local 1 could not hope to win representation elections against other printing unions seeking to represent lithographic workers ”. Swayduck declares that for this reason, among others, Local 1 and the ALA have always adhered to their 1 ‘ fundamental policy ’ ’ of organizing lithographic workers only, and that ‘ ‘ at all times, Local 1 and the ALA have been, except in rare instances not pertinent here, unions limited to lithographic workers ”.


Finally, it is unnecessary to review here the abundant evidence and experience in support of the conclusion reached in the proceeding to determine the appropriate <mask>. The contentions raised by the petitioner may well be arguable, but that is not enough. There is a considerable body of evidence to support the conclusion reached, and it may not be disturbed.


The acting director stated the issues to be: "first, whether or not an employer’s unilateral alteration of a <mask> during the appropriate challenge period constitutes a violation of the above referred to paragraphs of the Act and, second, whether or not a refusal thereafter to negotiate such alteration constitutes a violation of those paragraphs of the act”. Having excised the allegation of animus, the acting director then stated, "the charge does not contain any allegation of animus on the respondent’s part concerning its motivation for the passage of the Resolution; rather, it challenges the resolution itself’. He also stated, "this element — animus — is necessary to establish a violation of § 209-a.l(a) or (b) of the Act”. (In its confirmatory decision PERB itself concedes that allegations of animus would have raised questions for a hearing.) The acting director then determined as a matter of law and without a hearing that the charge as limited did not constitute a violation of the statute.


The appended Notice to Employees stated that appellant would "CEASE AND DESIST" from: "1. Failing to bargain in good faith with CSEA over the foreseeable impacts of the closure of Las Flores and the abolishment of classified positions; [¶] 2. Denying classified <mask> members the right to be represented by CSEA; [¶] 3. Denying CSEA the right to represent its members." It said appellant would take the following "AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EERA": "1. Within twenty (20) days of the service of a final decision in this matter, meet and negotiate in good faith with CSEA, upon receipt of CSEA's proposals addressing the foreseeable effect of the May 2010, decision to close Las Flores and abolish classified positions. [¶] 2. Compensate at their normal rate, any CSEA bargaining unit members who were affected by layoffs resulting from the May 6, 2010, decision by the District's Board of Education ... to close Las Flores and abolish classified positions. CSEA shall submit its bargaining proposals within twenty (20) days following the service of this decision and order. Should CSEA fail to submit such proposals within this twenty (20)-day time frame, this limited backpay remedy shall not go into effect. Provided CSEA submits its proposals, payments shall remain in effect until the earliest of the following conditions: (1) the date the parties reach an agreement on those subjects pertaining to the effects of the May 2010 [decision], by the District School Board to close Las Flores and abolish classified positions; (2) the parties[ ] exhaust the [']negotiating an impasse['] procedures prescribed by EERA; or (3) subsequent failure by CSEA to bargain in good faith." The notice stated it was an "official notice" that "must remain posted for at least thirty (30) consecutive workdays from the date of posting" and "must not be reduced in size, defaced, altered or covered with any other material."


There is no specific applicable Statute of Limitations in New York governing the institution of an action which alleges the violation of a duty by a union to fairly represent the members of the <mask> it represents. Recent Federal court cases have addressed themselves to analogous Statutes of Limitation and/or regulations of administrative agencies which should be applied in an action based upon the violation of a union’s duty of fair representation to its membership.


A collective bargaining agreement was entered by the Engineers Association and Sperry Gyroscope Division (hereafter Sperry) of Sperry Band Corporation on July 7, 1958. By the terms of that agreement, the employer, Sperry, agreed inter alia “ to pay its present share up to the present cost of Hospitalization and Surgical Benefits and shall pay the cost of anesthesia and in-hospital medical coverage riders ” (art. 16, subd. E [1]). On November 2, 1959 the Engineers Association submitted to the vice-president for industrial relations of Sperry a grievance in writing. The grievance was concerned with (1) the failure of the company (Sperry) to disclose the amount of refunds received from the United Medical Service and the United Hospital Service, and (2) the failure of the company (Sperry) “ to return to the persons in the <mask> their pro rata share of such premium refunds ”. On December 12, 1959, the answer of the employer was ‘ ‘ There is no contractual violation. ’ ’


Of the $133.80 agency shop fee collected by defendant La Marca for the local union (GCTA), only $20.60 is actually retained by the GCTA, the largest part of the fee being forwarded to other affiliates — the national affiliate, American Federation of Teachers (AFT), receiving $28.20, and the State affiliate, New York State United Teachers (NYSUT) receiving $85. Defendant La Marca maintains that, while he should be entitled to collect an agency shop fee of $133.80 from each nonunion member of the <mask>, only the $20.60 remaining with the GCTA should even come under the scrutiny of the refund procedure required by Abood v Detroit Bd. of Educ. (431 US 209, supra) and by section 208 (subd 3, par [b]) of the Civil Service Law. Counsel for defendant La Marca urges here, as he did unsuccessfully in Matter of United Univ. Professions v Eson (11 PERB par 3068), that the agency fee moneys it receives and transfers to its parent organizations, NYSUT and AFT, should be treated unconditionally as purchases of services — without inquiry into whether any part of such moneys are expended "in aid of activities or causes of a political or ideological nature only incidentally related to terms and conditions of employment.” Were the court to accept such reasoning, any refund procedure — however fair on its face — could be subverted by a reallocation of dues between union locals and their State and national affiliates, and would be an empty gesture. If the State and national affiliates are to receive agency shop fees from their locals, they must undertake the correlative duty of providing, to the local, the information necessary for it to implement a refund procedure covering those portions of the agency shop fee earmarked for the State and national affiliates. If, within 90 days after the date of this decision, defendant La Marca is unable to secure the co-operation of such State and national affiliates in providing the information required by this decision, and to bring the funds earmarked for such affiliates within the scrutiny of the refund procedure, he shall refund to each objecting nonunion *258member the pro rata share of the agency shop fee collected on behalf of such affiliates.


*557In addition, the employment of city employees is subject to collective negotiation rights embedded in state law. In fact, the employees were members of a <mask> represented by DC-37, and, as a result, their employment and termination is covered by the union contract. The union contract, entered into under the authority of state law, to the extent it does not violate state law, also creates terms of employment for covered employees, such as the employees. For example, the union contract expressly sets forth certain notice requirements for the separation of employees.


“ A. The Company agrees to recognize the Union as the sole collective bargaining agent for all production and service employees in its East 25th Street Plant, Paterson, New Jersey, as determined by the National Labor Relations Board in eases No. R-4676, 2R-4135, excluding employees defined in case No. 2RC-881, for the purpose of collective bargaining with respect to rates of pay, hours of work and other conditions of employment. By mutual agreement, there shall be excluded from the coverage of this agreement employees being trained for administrative or staff jobs who receive incidental shop training. *717‘ ‘ B. Supervisory employees and employees outside the coverage of this Agreement will generally not perform work normally assigned to members of the <mask>, except in cases of emergency or other unusual situations, when an employee who would normally be assigned to do the work is absent or unavailable, or work performed on new processes, new tools, instructing new employees or ‘ trouble shooting.’ ” A reading of article I makes it clear that it is not applicable to the facts here presented. There is no prohibition against having work done by an outside agency. The only prohibition is contained in subdivision B of article I which states that ‘1 supervisory employees and employees outside the coverage of this Agreement will generally not perform work normally assigned to members of the bargaining unit ” (italics supplied). Employees ‘‘ excluded from the coverage of this Agreement ” are referred to in subdivision A of article I without mention of independent contractors. Moreover, the term “ employees ” is used throughout this agreement in its usual context. The juxtaposition of these two subdivisions constituting article I of the agreement, as well as the use of the term “employee” elsewhere in the agreement, makes its meaning clear and unambiguous. There is no real ground of claim and the grievance alleged is not an arbitrable dispute under the contract (Matter of General Elec. Co. [United Elec. Radio & Mach. Workers of America, C. 1. 0.], supra; Matter of International Assn. of Machinists [Cutler-Hammer], 271 App. Div. 917, affd. 297 N. Y. 519; Matter of Otis Elevator Co. [Carney], 8 A D 2d 636; Matter of Berger [World Broadcasting System], 191 Misc. 1043, affd. 274 App. Div. 788; Matter of Curry, Inc. [Reddeck], 194 Misc. 527; Carborundum Co. v. Swisher, 17 Misc 2d 231; see, also, Amalgamated Assn. etc. v. Greyhound Corp., 231 F. 2d 585; Standard Refinery Union v. Esso Std. Oil Co., 3 N. J. Super. 548).


Those cases, cited earlier for the proposition that the duty of railway unions to fairly represent all employees derives from the Bailway Labor Act, are not to the contrary since in each of them the certified bargaining representative was charged either expressly or by necessary implication with active and hostile discrimination against Negro employees either in bargaining on their behalf as in Steele, Tunstall, Graham and Howard or in processing their grievances as in Conley. Of course the judically enforcible duty of fair representation originally enunciated in cases involving racial discrimination has been extended to such situations where unlawful discrimination is alleged to have been practiced on other than racial grounds. (Ford Motor Co. v. Huffman, 345 U. S. 330 [1953] ; Thompson v. Brotherhood of Sleeping Car Porters, 316 F. 2d 191 [C. A. 4th, 1963]; Ferro v. Railway Express Agency, 296 F. 2d 847 [C. A. 2d, 1961]; Latham v. Baltimore & Ohio R. R. Co., 274 F. 2d 507 [C. A. 2d, 1960]; Mount v. Grand Inti. Brotherhood of Locomotive Engrs., 226 F. 2d 604 [C. A. 6th, 1955].) But these decisions involved either proof or at least allegations of willful and invidious discrimination by the bargaining representative against a member or class of members of the <mask>. It seems then that the dismissal of the prior action by the District Court may quite well have been predicated upon the fact that the complaint there (which is practically identical with that here) failed to allege bad faith or an *440active and hostile discrimination against the plaintiff by the individual defendants and Division 421, so that Federal jurisdiction of the subject matter was not invoked in the absence of a diversity of citizenship between the parties which concededly did not exist. That being so, the dismissal there would not be an adjudication upon the merits (Fed. Rules Civ. Pro., rule 41, subd. [b]; Hughes v. United States, 4 Wall. [71 U. S.] 232) but only one made upon the face of the complaint reflecting the absence of essential jurisdictional allegations. I reach this conclusion aware of the fact that other Federal court decisions may appear to be at variance with the determination made by the District Court in this case. (See Conley v, Gibson, 355 U. S. 41, supra, and Thompson v. Brotherhood of Sleeping Car Porters, supra.) But as indicated above, these decisions may be validly distinguished.


Petitioners commenced this proceeding to prevent any decrease in their payments. They argue that they are not “<mask> members” within the meaning of the CBA, and that, in any event, they have a vested interest in the higher salaries that cannot be divested without an allegation of misconduct and a due process hearing. Thus, they assert, City of Newburgh’s decision to reduce their payments is arbitrary, capricious and contrary to law, and must be annulled.


(1) The Union calls a strike over a grievance which has originated in such <mask>, after such grievance has been fully processed in accordance with and through the successive steps of the grievance procedure; provided that no such strike shall be called or commenced with respect to any grievance which has been settled and closed as provided in the grievance procedure, nor with respect to any grievance which is submitted to arbitration.


Having received supplemental briefs and replies to the supplemental briefs, we conclude the Board did not err when it (1) identified and applied the rules that define when a certified union has made a disclaimer of interest in representing the <mask>; (2) determined the statement by the Union representative that "we're through with you" (if made) was not a clear and unequivocal disclaimer of interest; and (3) concluded the Union's subsequent conduct consistent with a disclaimer could not render the equivocal disclaimer effective. On the question of make-whole relief, the principles set forth in Tri-Fanucchi compel the conclusion that the Board properly exercised its broad discretionary authority when it awarded make-whole relief in this case.


The petitioner contends that section 209-a (subd 1, par [d]) is violated when an employer unilaterally redefines a <mask> to exclude some employees. But this cannot be. The impropriety defined in paragraph (d) is the refusal to negotiate, and there can be no improper refusal unless there is a necessity to negotiate. Even a concession that the Board had no authority to redefine the bargaining unit would not of itself prove that redefinition is a mandatory subject for bargaining.


*313Furthermore, the PERB Rules permit an amendment of an existing <mask> only on application of the county or the recognized representative of that unit. (Rules, § 12.) No such application was received here, and it was improper for PERB to direct that result in the absence of a proper application and ensuing procedures. The pending TJFCT application was only for certification of part-time faculty as an appropriate bargaining unit. If PERB considered the unit inappropriate, the proper procedure would have been to deny the application rather than amend an existing and separate unit represented by a separate employee organization. An original application for the single unit of full and part-time faculty would have to be accompanied by indications of support from 30% of the members of that proposed unit. The procedure followed here by PERB circumvents that requirement by permitting action upon the support of only 30% of a small unit, without any opportunity of rebuttal from full-time faculty members or their exclusive representative.


The papers of defendant La Marca show that, out of 402 teachers in the <mask>, 380 are members of the Gates-Chili Teachers Association (GCTA), the local union. Consequently, the agency shop fee provision actually affected only 22 of the 402 members of the bargaining unit, and, as of the deadline for filing objections for the contract year in question, 12 of those 22 persons had filed refund requests.


On this issue, the plaintiff asserts that section 9 (subd [b], par [3]) of the National Labor Relations Act (US Code, tit 29, § 159, subd [b], par [3]) expresses a clear Federal policy against representation of security guards by a union which also admits other types of employees in the same <mask>. This statute prohibits the National Labor Relations Board (NLRB) from granting certification to an offending union as representatives of the employees in such a guard bargaining unit. It is claimed that since Teamsters has combined security guards with other types of employees as members the same bargaining unit (which has been the case for 12 years), Teamsters violates this national policy. Thus, Teamsters cannot be certified for representation by the NLRB and by reason thereof, the picketing at Rochdale is not in pursuance of a legitimate labor objective or activity during a legitimate labor dispute. In support of this contention, the plaintiff cites and relies upon the case of District 2, Mar. Engrs. Beneñcial Assn. (AFL-CIO) v New York Shipping Assn. (29 AD2d 139). The Appellate Division there concluded that the picketing under such circumstances was not over a legitimate "labor dispute” and thus that the right to injunctive relief was not limited by the provisions of section 807 of the Labor Law. This decision was appealed to the Court of Appeals, which modified the *419determination of the Appellate Division on the very point here at issue. The Court of Appeals differed with the Appellate Division, and set aside the injunction in the following language: "The purpose of the picketing in question was not 'unlawful’, and section 807 of the Labor Law prevents issuance of an injunction.” (District 2, Mar. Engrs. Beneñcial Assn. [AFL-CIO] v New York Shipping Assn., 22 NY2d 809, 812, cert den 393 US 960.)


The Senate then commenced this proceeding (CPLR art. 78) to invalidate that determination, asserting the same objections made before PERB. PERB responds that it has complied with the statutory procedures for its deliberations and has acted properly. It also asserts, as does UFC'T, that the Senate’s unchallenged representation status terminated on March 17, 1971 and that the Senate is therefore not aggrieved by an expansion of the <mask>. The UFCT also asserts that the Senate waived its opportunity to participate by failing to present witnesses at the additional hearing directed by the PERB order of January 27, 1971. On the return date of the proceeding, the court directed that the representation election be stayed pending the determination of the litigation.


It is conceded that petitioner is a nonteacher and does not fall within the collective <mask> which negotiated a contract with the county running through 1974. Nevertheless, petitioner is employed by the college and paid by the county, and the ‘1 Faculty Code ’ ’ clearly applies to one in her position (as conceded by respondent when it claims she should have utilized the grievance procedure outlined in such code and in the collective bargaining agreement). Such grievance procedure need not be utilized when “ the board is without authority to act. ’ ’ The grievance board would be unable to afford petitioner any relief in this case, since it is the county which is withholding her salary, and hence petitioner need not have exhausted her administrative remedies which clearly would have been a futile gesture on her part.


At issue here is the legality of PERB’s interpretation of the Civil Service Law that the Board’s acts did not, as a matter of law, constitute improper employer practices. The Court of Appeals has made a holding that both defines our duty and also answers the petitioner’s attempted analogy with employment in the private sector. "So long as PERB’s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation on the strength of what the NLRB or the Federal courts might do in the same or a similar situation” (Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50). In this perspective, was it legal to conclude that a unilateral alteration of the composition of a <mask> by a public employer during the challenge period did not, in and of itself, constitute: an interference with public employees for the purpose of depriving them of their rights (Civil Service Law, § 209-a, subd 1, par [a] ); an interference with the formation or administration of an employee organization for the purpose of depriving employees of their rights (Civil Service Law, § 209-a, subd 1, par [b] )? Was it legal to conclude that the failure of the Board to negotiate this alteration did not constitute a refusal to negotiate in good faith with the recognized representative of the public employees (Civil Service Law, § 209-a, subd 1, par [d])?


Petitioner alleges and contends that the City of New York, through its Budget Director, and the Administrative Board, through its State Administrator, jointly and without authority delegated to the New York City Department of Labor the matter of determining appropriate collective bargaining units for nonjudicial employees of the unified court system. Several associations sought certification as representatives for collective bargaining. Hearings were held on March 3 and March 14,1966. *609On April 13, 1966, the Labor Department’s hearing officer recommended that all Supreme, Family and City Criminal Court Probation Officers should constitute an appropriate and single <mask>. On the following day, the department’s Commissioner adopted the recommendation, and certificate of •representation was issued June 16, 1966.


By the contract it is provided (art. 20, subd. l[c]) that “ In the event that the Association does not accept the Employer’s answer it shall within two weeks after the receipt thereof, notify the Employer of its intention to submit the same for arbitration. In the event of the failure of either the Employer or the Association to comply with the time limitations herein-above imposed upon the parties, then the grievance shall be deemed either withdrawn or affirmatively accepted, as the case may be.” (Emphasis supplied.) No demand to submit that grievance to arbitration'was made but on December 18, 1959 a second grievance was filed in which it was stated that “ The Company has not complied with Article 16E1 of the contract in that it has not paid its specified share of the cost of Hospital and Surgical Benefits since 1950 inasmuch as refunds from the plan have effectively reduced the actual cost to the Company. The Engineers Association demands that these refunds received by the Company from the Hospital and( Surgical Benefits carrier be distributed to the <mask> members on a pro rata basis.” On January 21, 1960 the second grievance was rejected by answer providing “ This grievance calls for a distribution of an experience-rated refund and a grievance *558calling for that same remedy has been filed and answered by the Company. Therefore, this question is now foreclosed. The company has complied with the contract requirements and no violation has occurred.” (Emphasis supplied.)


The affidavits of Edward P. Delaney, Director of respondent’s Department of Human Resources, detail his familiarity with the petitioners’ personnel records, and his knowledge of the seniority and tenure list of all teachers and administrative personnel. He relates that, as a result of a July 30, 1984 arbitration award between ASAR and the School District, "teachers who were on Administrative Assignment * * * were given the option of being placed in the Respondent’s Adminis*652trative <mask>.” Further, he states that the former title of Teacher on Administrative Assignment would be established in the ASAR bargaining unit as "Administrative Specialist”, but within that title, a number of separate tenure areas could exist. Additionally, according to respondent, the positions established in the aforesaid separate areas under the title of "Administrative Specialist” were not "interchangeable”, and that regardless of such an all-encompassing title, employees are assigned to subtitled tenure areas under that generic heading. Following this background, therefore, the respondent proffers that each of the individuals named on the seniority list held superior tenure rights than the petitioners at the time of discharge.


Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 75 seeking a permanent stay of arbitration with respect to a grievance of respondent concerning the calculation of <mask> members' benefit-related service credits. Petitioner appeals from an order that, inter alia, dismissed the petition. We reject petitioner's contention that certain provisions of the collective bargaining agreement concerning the multi-step grievance process constitute conditions precedent to arbitration. "Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration" (Matter of Enlarged City School Dist. of Troy [Troy Teachers Assn.], 69 NY2d 905, 907 [1987]; see Matter of Kenmore-Town of Tonawanda Union Free Sch. Dist. [Ken-Ton Sch. Empls. Assn.], 110 AD3d 1494, 1496 [4th Dept 2013]).


It is the opinion of this court that the plaintiff’s motion for a temporary injunction should be granted to the extent of *569restraining the defendants during the pendency of this action, from implementing and imposing on the plaintiff or any members of the <mask> which plaintiff represents, any of the provisions of the 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 the agreement dated April 13, 1977, and the said motion be denied in all other respects.


On September 19, 2013, the City's negotiator declared an impasse in negotiations, and provided VPOA with the City's last, best, and final offer, in which the City offered the following, effective January 1, 2014: For active employees, the city would make a "direct PEMHCA contribution" of medical premiums not to exceed $300 per month, and would "contribute the difference between the PEMHCA contribution ($300) and 75% of the [Kaiser rate] through a flexible benefits plan," with the flexible benefit plan contribution "limited for use for medical premiums." As retirees, current VPOA members would receive the "same amount" as the City contributed "towards the PEMHCA medical premiums for current VPOA <mask> employees," so if the "direct PEMHCA contribution" for current employees was capped at $300, the City would pay up to that amount for eligible retirees. The proposal was accompanied by a letter in which the City wrote, "Despite the substantial movement in the City's [last, best, and final offer], we have no illusions that this proposal will result in an agreement. The VPOA made it clear in its last offer on July 18, 2013, that it believes 'The VPOA specifically notes that each member hired prior to the effective date of an agreement, including retired members, maintains a vested right to his/her retirement medical benefit. Nothing in this proposal shall be interpreted to constitute a waiver of such members' individual vested rights.' As we have communicated to you, the City does not believe that a vested benefit exists today for VPOA members. Moreover, having recently exited the Chapter 9 bankruptcy process, the city will not consent to any language which would establish a long term, unrestricted, unknown growth of an employee or retiree benefit. [¶] Based on the foregoing, the City believes that the parties are now at impasse. While we remain open to a counterproposal from the VPOA which breaks that impasse, the parties have been very frank in their needs over the past few months and we remain significantly apart."


Petitioner contends the arbitrator exceeded his authority by changing the labor contract through use of the italicized language. Paragraph 38 of the contract provides that he shall have “ no power to add or subtract from or modify any of the terms of this agreement.” Paragraph 151 of the contract provides: “ Normal duties of employees included in the <mask> covered by this agreement shall not be regularly assigned to employees not covered by the terms of this agreement. However, members of supervision may perform such duties under exceptional circumstances as follows: emergencies, absences of regular employees, instruction of others, and development of new methods and new projects.”


Respondent, Faculty Federation of Erie Community College (Federation), is the exclusive <mask> for certain employees of the College, including, for purposes of this matter, full-time 10-month teaching faculty. While considered full-time employees for purposes of the CBA, such faculty are required to work at the College for 10 months out of the year (no earlier than one week prior to Labor Day and no later than May 31).


As indicated, several associations had made requests for certification, which resulted in the certification of June 16,1966. The hearings were held pursuant to notice duly given in the City Record on December 15,1965, which resulted in the requests for certification. This petitioner did intervene by making such request, but its request is dated June 15, 1966. Not only was that request belated, but petitioner’s apparent uncertainty as to its position leads it to request referral of the issue to an impartial umpire, or that the Commissioner of Labor be directed to issue a certificate of representation to it. Apart therefrom it cannot be said that, by participation with the city as joint employers along with the city’s Department of Labor in a proceeding to determine the collective <mask>, the Administrative Board has either abdicated or delegated a power, assuming a nondelegable power is involved. After determination of the-appropriate unit, bargaining is then done by the board’s staff with the city. In the light of the city’s power in the matter, as defined by article VI of the Constitution, the tripartite action in determining alone the appropriate unit is not an invalid exercise of power (Administrative Board, art. VII, § 3). Moreover, the adoption of article VI of the Constitution must be viewed in the *610light of the existing city structure for the conduct of labor relations as expressed in Executive Order No. 49 of March 31,1958, and adopted by the Board of Estimate on August 23, 1962.


Eespondent’s contention that the union had no right to recover moneys which it had failed to pay to the 61st Street shipping clerks, because they were not members of the union, was rejected by the arbitrator, who found that “it is the right and duty of the Union to represent the interest of all the workers within the <mask>, regardless of their membership or non-membership in the Union ’ ’.


The union, if it is to be permitted to collect agency shop fees from nonunion members of the <mask>, must bear the burden of justifying its assessment and establishing that the fees are not being expended for impermissible purposes: "Since the unions possess the facts and records from *259which the proportion of political to total union expenditures can reasonably be calculated, basic considerations of fairness compel that they, not the individual employees, bear the burden of proving such proportion. Absolute precision in the calculation of such proportion is not, of course, to be expected or required; we are mindful of the difficult accounting problems that may arise. And no decree would be proper which appeared likely to infringe the unions’ right to expend uniform exactions under the union-shop agreement in support of activities germane to collective bargaining and, as well, to expend nondissenters’ such exactions in support of political activities.” (Railway Clerks v Allen, 373 US 113, 122, supra, quoted in Abood, 431 US, at p 239, n 40, supra.) There is no language in the refund procedure, and, evidently, no practice under it, by which the GCTA, NYSUT or AFT undertakes to meet this burden or to provide a basic accounting concerning the proportion borne by political and ideological expenditures to over-all union expenditures. In exchange for the right to receive agency shop fees from nonunion members, and based on each union affiliate’s unique access to the facts, each affiliate, through the auspices of the GCTA, should report separately its total political and ideological expenditures, and, in the event it deems some of these more than incidentally related to the terms and conditions of employment, the net proportion of such expenditures which it deems refundable pursuant to section 208 (subd 3, par [b]) of the Civil Service Law. Not until this obligation is undertaken can an agency shop fee refund procedure be fairly carried out.


The plaintiff, Carl Mathison, was a Probation Officer and was the past president of Local 814 of the Civil Service Employees Association (hereinafter CSEA) <mask>. The defendant, Helen Zocco, is the current president of Local 814. On or about January 3, 1991, Zocco sent a letter to Mathison’s employer in the Probation Department, and to William Burke, the CSEA Regional Attorney who is currently representing Zocco in this action. In this letter, Zocco explained how she had been arrested for driving while intoxicated and how Mathison has been making use of that arrest to "harass” her in his position as a probation officer. Zocco requested that the Probation Department take action against Mathison, and made a formal complaint against Mathison.