PERB may elect to defer its consideration of unfair labor practice charge

PERB may elect to defer its consideration of unfair labor practice charge
PBA and Village of Ossining, 30 PERB 4711

PERB sometimes elects to defer considering unfair labor practice charges filed by an individual or an organization. It typically does so when there is some other procedure available that could address and resolve the issues that motivated the filing of the charge in the first instance. The Ossining PBA case provides an example of such a situation.

Ossining Chief of Police Joseph Burton “unilaterally changed the work schedule” of PBA unit members in an apparent effort to avoid paying holiday pay. Had the “natural rotation” of the work chart had not been altered, certain officers would have earned holiday pay.

The PBA protested the change and filed an unfair labor practice charge with PERB. PERB discovered that the PBA had also filed contract grievance concerning the matter, however.

The parties agreed to defer pressing the issue before PERB pending the resolution of the grievance.

PERB Administrative Law Judge Sandra M. Nathan observed that “it is appropriate to defer deciding whether the [Taylor Law] precludes the exercise of jurisdiction by PERB, pending the outcome of the grievance which has been filed.” She “conditionally dismissed” the PBA complaint.

What would be the result if the PBA had not already filed a grievance?

Assuming (1) that a contract grievance procedure was available, (2) that the issue appeared appropriate for submission as a contract grievance, and (3) that these facts were disclosed to the administrative law judge, the ALJ probably would have conditionally dismissed the complaint and directed the parties to first submit the matter for resolution through the grievance procedure.