December 20, 2010

Compulsory interest arbitration

Compulsory interest arbitration
Matter of White Plains and White Plains PBA, 33 PERB 4588

Section 209.4 of the Civil Service Law provides for resolving impasses in collective negotiations between a public employer and an employee organization representing police or fire personnel through arbitration. Not all matters that have gone to impasse may be resolved be referral of the Section 209.4 panel, as the White Plains determination by PERB’s Director of Public Employment Practices and Representation demonstrates.

The White Plains PBA’s collective bargaining proposals included grievance procedures that were to be followed in connection with internal investigations.

In addition to providing for the right to representation during interrogation, the individual was to be advised on the nature of the investigation prior to interrogation and allowed to make notes if he or she was the subject of a criminal investigation [Proposal 8(C)]. Proposal 8(F) provided that [i]f a Police Officer is “under arrest or if such officer is a suspect or the target of a criminal investigation, the officer shall be given MIRANDA warnings* and shall have the opportunity to decline answering any questions.”

White Plains filed an improper practice charge with PERB in which it argued that the PBA had filed a petition for compulsory interest arbitration of its grievance procedure demand and on other matters that were nonmandatory subjects of collective bargaining. In addition to its objection to negotiating the grievance item, White Plains objected to arbitrating to PBA proposals providing that:

1. No Employee shall be denied any overtime [Proposal 12].

2. ... employees on maternity leave in excess of 60 calendar days shall continue to accrue vacation time [Proposal 13].

A few weeks later the PBA filed an improper practice charge with PERB alleging that the City’s answer to its petition for compulsory interest arbitration included a proposal concerning a nonmandatory subject of negotiations.

Toomey found that Proposals 8(C) and 8(F) were nonmandatory subjects of collective bargaining as they addressed procedures to be followed when a unit member was the subject of a criminal investigation.

Although there were other elements set out in Proposal 8 that clearly were mandatory subjects of collective bargaining under the Taylor Law, they did not survive for the purposes of compulsory interest arbitration. Why not? Because, ruled Toomey, Proposal 8 was presented as a single package, it must be found to be nonmandatory in its entirety based on the nonmandatory aspect of some of its parts.

Toomey also found that Proposal 12 was not a mandatory subject of collective bargaining. Toomey explained that in contrast to constituting a demand for overtime compensation, its purpose was to allow employees to work overtime on demand.

As to Proposal 13, Toomey deemed it unlawful and thus not subject to collective bargaining as it provided a special benefit in connection with maternity not available to other employees on paid or unpaid leaves. Toomey, citing School District 6 v NYSHRB, 35 NY2d 371, said that such a personnel policy, even if the product of negotiations under [the Taylor Law] would violate the State’s Human Rights Law and is therefore a prohibited subject of negotiations.

* See Miranda v Arizona, 384 US 436

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