Collective bargaining after the Taylor Law Agreement expires

Collective bargaining after the Taylor Law Agreement expires
Local 2562 v PERB, App. Div., Third Dept., 276 AD2d 184, Motion for leave to appeal denied, 96 NY2d 711

In the Local 2562 case, the Appellate Division sustained a Public Employment Relations Board [PERB] ruling that held that a nonmandatory subject of collective bargaining, if continued after the expiration of a collective bargaining agreement [CBA] under the Triboro Doctrine [Civil Service Law Section 209-a(1)(e)], is converted into a mandatory subject of collective bargaining.

The Triboro Doctrine essentially requires a public employer to continue all terms of an expired collective bargaining agreement -- whether mandatory or nonmandatory subjects -- until the parties reach a new agreement.

Uniform Firefighters Local 2562 [City of Cohoes] appealed a PERB decision holding that certain otherwise nonmandatory proposals made by the City in the course of negotiating a successor to an expired CBA are mandatory subjects of collective bargaining.

Local 2562 sued, contending that PERB’s determinations departed from its prior precedent and redefined what may constitute a mandatory subject of negotiation upon the expiration of a collective bargaining agreement between police officers and firefighters and their municipal employers.

In particular, Local 2562 objected to PERB’s rulings concerning the City’s proposal to delete or alter certain terms in the expired CBA relating to staffing composition and job assignment and the City’s proposal affecting General Municipal Law Section 207-a disability benefits.

Agreeing to the Section 207-a proposal, said the union, would require its members to give up certain statutory rights and privileges. In addition, Local 2562 complained that the City’s staffing proposals concerned officer replacement procedures and the obligation of firefighters to engage in snow removal and were previously viewed as managerial prerogatives deemed nonmandatory subjects of negotiation prior to their inclusion in the parties’ previous CBA.

According to the decision, PERB’s overruling its long-standing precedent meant that once nonmandatory subjects have been incorporated into a CBA involving police officers and firefighters, such items become mandatory subjects of negotiation for the purposes of negotiating a subsequent agreement in a Triboro Doctrine situation.

PERB also ruled that proposals concerning the terms and conditions of employment that would require an employee organization or its members to waive or modify statutory rights and privileges are also mandatorily negotiable, unless bargaining as to those matters is foreclosed by clear legislative intent or public policy.

PERB’s explanation: its new interpretation corrects an imbalance resulting from the enactment of Section 209-a(1)(e) of the Taylor Law which codified the so-called Triboro Doctrine.

The Appellate Division said that PERB provided “a detailed explanation for its decision to depart from its previous analysis on the ground that it intended to create a more equal bargaining posture between the parties in order to foster productive negotiation....”

Accordingly, said the court, recognizing the deference to which PERB’s determinations are entitled in the realm of improper labor practices, it found that its action was neither arbitrary nor irrational.

As to PERB’s determining the negotiability of proposals alleged to flow from a statutory right or benefit, in the past PERB automatically categorized such proposals as nonmandatory without analysis of whether negotiations concerning particular proposals would be consistent with the applicable statute’s legislative intent, public policy, or the furtherance of the objectives of the Taylor Law. Under its new policy, PERB would consider such demands on a case-by-case basis.

The Appellate Division said that PERB’s approach -- reviewing each such proposal case-by-case -- appears to be substantially the same as the method used to determine whether proposals of employee organizations that implicate the rights of public employers are mandatorily negotiable.

The court rejected Local 2562’s argument that by requiring that proposals relating to the waiver of statutory rights be subject to negotiation, PERB is effectuating the involuntary waiver of those rights. It said that although the Taylor Law clearly provides that the obligation to negotiate concerning terms and conditions of employment it does not compel either party to agree to a proposal or require the making of a concession.

The bottom line: the court affirmed the Supreme Court’s dismissal of Local 2562’s challenge to PERB’s determinations, indicating that they were neither arbitrary, capricious, an abuse of discretion nor affected by an error of law.
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