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January 11, 2011

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position
CSEA Orange County Local 836 v PERB, 273 A.D.2d 626

The Local 836 case concerns an employee organization’s right to negotiate the impact of a legislative body’s eliminating a certain position and the duties previously performed by incumbent of the abolished position are to be performed by an employee in another collective bargaining unit.

On December 31, 1994, the Newburgh City Council eliminated positions of animal control officer for budgetary reasons. These positions were in the negotiating unit represented by CSEA Orange County Local 836. The City reassigned the duties being performed by the former incumbents of the abolished positions to uniformed City police officers -- who were in a different collective bargaining unit.

Local 836 filed charges alleging that the City committed an improper employer practice when it assigned the duties previously performed by the animal control officers to non-unit police officers. Ultimately, PERB said that the transfer of the work from the animal control officers to police officers necessarily resulted in a significant change in qualifications and that the propriety of the transfer was therefore to be determined under the balancing test set out in its ruling in Matter of the Niagara Frontier Transportation Authority, 18 PERB 3083.

After applying the Niagara test, PERB held that when weighed against a mere loss of unit work, Newburgh’s managerial concerns clearly prevail and thus the transfer of duties was not a mandatory subject of collective bargaining. Accordingly, Newburgh was not required to negotiate its decision to transfer “unit work” and PERB dismissed the charge. The Appellate Division affirmed PERB’s determination.

The court said that because of the special employment qualifications required of, and possessed by, police officers and firefighters, the substitution of civilian employees for uniformed officers would of itself constitute a substantial change in job qualifications. It necessarily follows that the converse is true and that a substitution of police officers for civilian employees will also involve the requisite significant change.

The Appellate Division ruled that PERB rationally concluded that the transfer of job functions from civilian to uniformed employees effected a significant change in job qualifications without reference to the actual duties performed by the two classes of employees.

As to the balancing test applied by PERB, the court agreed with view expressed by PERB that because the animal control officer positions had been previously eliminated as the result of the City’s legislative action, the loss of those jobs was not a factor that entered into the test.

Accordingly, the loss of the jobs in the unit represented by Local 836 was not a consequence that flowed from the City’s reassignment of the non-emergency animal control duties to the police, it is the action that precipitated the assignment of unit work to non-unit employees.

The court’s conclusion: The loss of jobs under such circumstances cannot be a part of the balancing test to determine whether the City’ s action in transferring the unit work to nonunit employees violated the [Public Employees’ Fair Employment Act (Civil Service Law Article 14) because it did not occur as a result of the transfer of unit duties and thus the impact of this change was not a mandatory subject of collective bargaining.

What is the balancing test scenario used in situations involving the type unilateral transfer of unit work referred to in the Newburgh case?

First there must a determination as to whether the work been performed by unit employees exclusively and, second, a determination as to whether the reassigned tasks substantially similar to those previously performed by unit employees.

If the answer to both of these questions is yes, there has been a violation of Article 14 unless the qualifications for the job have been changed significantly.

If there is no such change in the qualifications for the position, the loss of unit work to the group is sufficient a detriment to support a finding of a violation.

If, however, there has been a significant change in the job qualifications and the change has not been mandated by the appropriate legislative body, then a balancing test is used and the respective interests of the public employer and the unit employees, both individually and collectively, must be weighed against each other.

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