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August 23, 2010

Considering the impact of the reallocation of the salary grade of positions on the collective bargaining unit

Considering the impact of the reallocation of the salary grade of positions on the collective bargaining unit
CSEA Local 1000, v PERB, Appellate Division, 248 A.D.2d 882

May a public employer unilaterally seek to reallocate certain titles to a higher salary grade, if such an action serves to remove employees from a bargaining unit?

Monroe County submitted a proposal to the County Legislature to upgrade county physical and occupational therapists. Approval of the proposal would remove 12 of the positions from the negotiating unit represented by CSEA.

CSEA Local 1000, contending that Monroe could not do this without first negotiating the proposed change with the union, filed an unfair labor practice charge with PERB. The complaint alleged that “the County engaged in bad-faith negotiations” and that its “tactics” were eroding the bargaining unit.

PERB reversed an administrative law judge’s ruling that the County violated Section 209-a(1)(a) and (d) when it unilaterally reallocated these titles to higher salary grades and the unilateral wage increase applied to bargaining unit titles was a per se violation of Section 209-a(1)(a).

PERB held that the reallocation of employees to a higher salary grade was not a mandatory subject of collective bargaining. In response, CSEA appealed to challenge PERB’s findings and conclusions.

The Appellate Division probed PERB’s rationale for its ruling and found it was based on an earlier decision by the Appellate Division holding that the “allocation of positions to salary grade is primarily related to a ‘mission’ of an employer and not to terms and conditions of employment” [Evans v Newman, 71 AD2 240].

The court found this persuasive and upheld PERB’s decision. Relying on the Evans decision, PERB properly found that local governments should not be compelled to negotiate allocations of positions to salary grades because such decisions are “an essential aspect of the level and quality of service to be provided by a public employer.”

The Appellate Division, noting that its power to overturn a PERB decision is limited as PERB has been given the authority to determine whether a particular matter is a term or condition of employment, said that PERB's determination will be judicially upheld so long as PERB’s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections.

The Appellate Division also rejected CSEA’s argument that the reallocation and removal of 12 employees from the negotiating unit that resulted from the change was the product of improper motives on the part of the County.

According to the court, "it is clear from the record that the decision to reallocate these titles to higher pay groups was motivated solely by the County's demonstrated need to provide competitive salaries for these positions thereby correcting past recruitment and retention problems.

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