September 30, 2010

Past practices and the Taylor Law

Past practices and the Taylor Law
Walden PBA v PERB, 263 AD2d 885

The Walden PBA filed an improper practice charge with PERB claiming that the Village of Walden had failed to negotiate in good faith in violation of Section 209-a(1)(d) of the Civil Service Law.

The PBA said that the Walden “unilaterally discontinued certain fringe benefits previously provided to police officers that were on General Municipal Law Section 207-c leave due to injury or illness incurred in the performance of their duties.” It was conceded that the “terminated benefits had previously been provided by the village pursuant to a long-standing past practice.”

The village argued that the “PBA had contractually waived the requirement of collective bargaining as to all past practices,” including the terminated benefits. Walden pointed to what the Appellate Division characterized as the “following unqualified language” in support of its position: “All past practices may be continued at the Village’s discretion.”

Reversing its Administrative Law Judge’s ruling, PERB concluded that the PBA had waived the Village’s obligation to negotiate changes in past practices. As a result, the PBA filed an Article 78 proceeding seeking to annul PERB’s determination.

Although a State Supreme Court justice overturned PERB’s determination, finding that it was not reasonable or rational, the Appellate Division reversed, holding that PERB’s determination represents a rational, supportable interpretation of the parties’ collective bargaining agreement.

In sustaining PERB’s ruling, the Appellate Division pointed out the following key elements:

1. A public employer commits an improper practice by unilaterally changing noncontractual practices concerning existing terms and conditions of employment.

2. An employee organization may release a public employer of its statutory duty to negotiate changes in mandatorily negotiable past practices.

3. A bargained-for waiver satisfies the employer’s bargaining obligation under the Taylor Law.

According to the decision, the parties themselves agreed that the PBA effected a collective bargaining waiver. The dispute centered on the question of whether “PBA waived the Village’s obligation to negotiate changes in ‘[a]ll past practices’” -- the village’s position, ... or “merely waived all past practices pertaining to grievance procedures” -- the PBA position.

The Appellate Division said that “this dispute poses questions involving the interpretation of a collective bargaining agreement which are within PERB’s area of expertise.” Accordingly, PERB’s interpretation is entitled to substantial deference and should be upheld if it is rational, reasonable, legally permissible and is supported by the text of the agreement.

Finding that PERB’s ruling satisfied all three tests, the court upheld PERB’s interpretation of the collective bargaining agreement, commenting that the Board's interpretation was neither arbitrary nor capricious.
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