Taylor Law considerations concerning General Municipal Law Section 207-a/207-c

Taylor Law considerations concerning General Municipal Law Section 207-a/207-c
Barnes v Council 82, [David Monroe], Court of Appeals, 94 NY2d 719
Watertown v Watertown PBA, Court of Appeals, 95 NY2d 73
Local 2562, IAFF, AFL-CIO, v Cohoes, Court of Appeals, 94 NY2d 686

The Court of Appeals has handed down three rulings concerning issues involving collective bargaining under the Taylor Law as they relate to negotiating procedures to implement and administer General Municipal Law Sections 207-a and 207-c with respect to the approval, and continuation of, benefits pursuant to these provisions.

In the Watertown P.B.A. case, the Court considered the negotiability of Section 207-c issues under the Taylor Law. In Barnes, the court addressed matters concerning procedures dealing with reporting for light or full duty assignments in accordance with a negotiated procedure. In Cohoes, one of the significant issues concerned due process requirements.

The Watertown PBA case

Referring to its determination in Schenectady Police Benevolent Association v Public Employment Relations Board, 85 NY2d 480, the Court of Appeals said that the employer’s authority under Section 207-c to make initial determinations in these matters is not a mandatory subject of collective bargaining.

Is a demand to negotiate procedures for the administration of the provisions of Section 207-c following the initial determination by the employer a mandatory subject of collective bargaining for the purposes of the Taylor Law? Yes, such demands were mandatory subjects of collective bargaining, said the court, noting the strong and sweeping presumption in favor of mandatory bargaining.

The case arose when the Watertown Police Benevolent Association [PBA] proposed that the parties bargain about the procedures to be followed if an officer wishes to contest the city’s initial Section 207-c determination in contrast to bargaining the City’ s right to make the initial determination. PBA wanted to have disagreements with the City’s initial determination to final and binding arbitration pursuant PERB’s Voluntary Disputes Resolution Procedure.

When the City refused to negotiate the demand, PBA filed an unfair labor practice charge with PERB. PERB ruled that since Section 207-c provides no procedural framework for resolving disputes, and because eligibility determinations [under Section 207-c] clearly affect terms and conditions of employment, “a demand for a dispute resolution procedure ending in arbitration ... is mandatorily negotiable.”

The Court of Appeals agreed, concluding that “the arbitration sought by ... the PBA is not a matter which the Legislature has circumscribed from the State’s strong and sweeping policy of bargaining with regard to terms and conditions of employment.”

Citing Public Sector Labor and Employment Law [Lefkowitz, Osterman & Townley, published by the New York State Bar Association,], the Court of Appeals observed that “... bargaining is mandatory even for a subject treated by statute unless the statute clearly preempt[s] the entire subject matter or the demand to bargain diminish[es] or merely restate[s] the statutory benefits.” Unless, said the court, there is clear evidence that the Legislature intended otherwise, the presumption is that all terms and conditions of employment are subject to mandatory bargaining.

In addition to making the initial determination, Section 207-c gives the employer the exclusive right to appoint a physician to examine a sick or injured officer, to prescribe and provide medical or surgical treatment if indicated, and to issue an initial back-to-work order if the physician concludes that the officer is capable of performing regular or light duty. Accordingly, these areas are not are not mandatorily negotiable.

Nor is bargaining required with respect to an employer’s ability to issue an initial order that a police officer assume a light duty position or to ordering a disabled officer to submit to surgery or requiring the employee to sign a medical confidentiality waiver form concerning the officer’s medical condition related to his or her ability to perform the duties of the position as a condition of his or her receiving, or continuing to receive, Section 207-c benefits.

As to the nonmandatory negotiating subjects of collective bargaining identified by the court, it may be significant that the decision does not characterize them as prohibited subjects of negotiations. Accordingly, it would appear that these issues are permissive subjects of collective bargaining.


The Barnes Case

The Barnes case starts where Watertown stops. While Watertown concerns a negotiating demand, in Barnes the parties had already agreed to a Section 207-c Procedure. The issue before the court concerned the processing of disputes arising under the procedure -- specifically arbitrating the employer’s order directing an individual on Section 207-c leave to report for a light or full duty assignment.

There was no question that such a dispute could be arbitrated said the Court of Appeals, pointing to its recent ruling in Board of Education of Watertown City School District (93 NY2d 132).

In Watertown School District, the court ruled that arbitration is an available procedure for resolving personnel disputes in the public sector if the party demanding arbitration is able to satisfy two tests:

1. The claim was lawfully fit for arbitration, i.e., there was no public policy, statutory or constitutional restriction placing arbitration off-limits; and

2. The parties must have agreed to refer the particular subject matter of the dispute to arbitration.

While here arbitration ultimately would have available to David Monroe to resolve the dispute, the Court of Appeals decided that there was no short cut to the arbitrator: under the facts of this case, Monroe had to comply with the requirements set out in the Article XI of the Section 207-c Procedure agreed upon by the County and Council 82.

The court found that although the parties had agreed to arbitrate disputes concerning directing an individual to report for light duty, Monroe’s demand for arbitration was premature because he failed to comply with the administrative procedures to be followed in resolving such disputes.

The case arose after Schenectady County Sheriff William W. Barnes, relying on the County’s medical expert’s conclusion that David Monroe, a corrections officer on Section 207-c leave, could perform light duty work, directed him to report for light duty. Monroe objected to the directive, as did his union, Council 82, contending that Monroe’s personal physician had said he was unfit to perform light duty.

The County said that “the proper route for Mr. Monroe [to challenge its decision] is to file a step 3 grievance ... within ten days of [Monroe’s] receipt of the order to light duty, citing Article XI of its Section 207-c procedure.”

The Section 207-c Procedure was established pursuant to a Memorandum of Agreement between the County and Council 82 and provided for submitting an adverse step 3 grievance determination by the County to arbitration.

Instead of filing a step 3 grievance, pursuant to Article XI, Council 82 demanded arbitration in accordance with Article VI (B) (2) of the procedure, contending that the question of whether or not Monroe is fit for a light duty assignment should be determined by the arbitrator because, in contrast to the County’s physician’s finding, Monroe’s personal physician had determined that he was not fit for light duty. The County, on the other hand, argued that the issue had to be first submitted as a step 3 grievance. The County won a court order staying arbitration.

The Court of Appeals affirmed the lower court’s granting of the stay, pointing out that Monroe had failed to satisfy the second test it had set out in Watertown School District. Why? Because, said the court, there was no agreement to submit the dispute in question directly to arbitration and Monroe did not satisfy the conditions precedent under the 207-c procedure that would have allowed the issue to ultimately be submitted to arbitration.

Two provisions of the Procedure were involved. Article VI, Section (B)(2) of the procedure provided that where this is a conflict in medical opinions concerning the light duty assignment, ... the duty or duties in dispute cannot be assigned until such dispute is resolved. Such dispute over said duties shall be submitted directly to arbitration...

The second provision, relied upon by the County was Article XI. The County argued that Article VI (B) (2) applied only in instances of medical disagreements arise as to the ability of the individual to perform the specific work assignments upon the employee’s reporting for light duty.

In contrast, where the individual raises an objection to an order to report for light duty based on the individual’s claim that he or she is physically unable to return to duty regardless of the nature of the assignment, his or her objection must be processed in accordance with Article XI as a Step 3 grievance regarding such decision.

Essentially the County argued that Article VI(B)(2) applies in situations where there is no dispute as to the individual’s ability to perform light duty -- only the particular light duty proposed -- while Article XI applies where the employee’s physician states that the individual is unable to perform any light duty whatsoever.

Agreeing with Schenectady County’s argument, the Court of Appeals said that because the basic issue concerned a conflict of medical opinions as to Monroe’s ability to perform any light duty, the issue was to be resolved in accordance with Article XI of the procedure. As Monroe had not filed a Step 3 grievance, he did not satisfy a condition precedent for any arbitration under the terms of the Collective Bargaining Agreement. Accordingly, the Court of Appeals affirmed the stay of arbitration.


The Cohoes case

The physician for the City of Cohoes found that five of six firefighters on Section 207-a leave were qualified to perform light duty while the remaining firefighter was qualified to return to full duty.

Although given written orders to report for full duty or to perform light duty assignments, the six did not report as directed. The union objected to the report-for-duty orders on the ground that the members may not be ordered back to work without specification of the proposed duties and an opportunity to challenge the proposed return to work order at a due process hearing. In response, Cohoes discontinued their Section 207-a benefits.*

In addition to suing, the firefighters, through filed grievances under their collective bargaining agreement and ultimately demanded arbitration of their grievances before the State Public Employment Relations Board. The City obtained a stay of arbitration.

As to the firefighters’ claim that they were entitled to an evidentiary hearing on their medical ability to perform light duty assignments before an order to return could be issued, the Court of Appeals said that although an administrative hearing may ultimately be required before Section 207-a payments are terminated, recipients are not entitled to a hearing prior to the issuance of a report for light duty order. They become entitled to such a hearing only if they submit a contrary opinion from their personal physician.

In the words of the court, due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts.

As to the demand for arbitration, the Court of Appeals decided that the City was not required to arbitrate its orders to report for light duty assignments. Its rationale: as the collective bargaining agreement is entirely silent concerning the contractual rights provided to regular duty firefighters being available to firefighters on Section 207-a leave, the lack of an express provision in the negotiated agreement making it applicable to firefighters in 207-a leave status is fatal to any claim of a contractual right to arbitrate these claim.

Citing Chalachan v City of Binghamton, 55 NY2d 989, the court commented that apart from contractual entitlements, “[t]he collective bargaining agreement should not therefore be construed to implicitly expand whatever compensation rights are provided petitioners under the statute. Any additional benefits must be expressly provided for in the agreement.”

* In the course of litigating this case, the Appellate Division held that if an individual submitted medical documentation of their continued total disability, his or her Section 207-a benefits may not be discontinued prior to the employer’s holding a hearing (Matter of City of Cohoes, 258 AD2d 24). The Court of Appeals affirmed this aspect of the Appellate Division’s decision.

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For additional information see General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and similar laws at: http://section207.blogspot.com/

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