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March 04, 2011

Public policy favoring collective bargaining of the terms and conditions of employment may be truncated by a competing public policy

Public policy favoring collective bargaining of the terms and conditions of employment may be truncated by a competing public policy
Matter of City of Middletown v City of Middletown Police Benevolent Assn., 2011 NY Slip Op 01400, Appellate Division, Third Department

The City of Middletown Police Benevolent Association ( PBA) and the City were parties to a collective bargaining agreement that had expired. The parties reached an impasse in the course of negotiating a new agreement and the PBA submitted filed a petition with the Public Employment Relations Board ( PERB) seeking the compulsory interest arbitration of several subjects, including a disciplinary procedure proposal, a bill of rights proposal and a proposal concerning procedure under General Municipal Law §207-c.

The City then filed an improper practice charge with PERB claiming, among other things, that the demands submitted by the PBA were not mandatory subjects of negotiation.

PERB ultimately held that the proposals for a bill of rights and disciplinary procedure — both of which involve police disciplinary matters — were prohibited subjects of negotiations, but “created an exception from this general prohibition of collective bargaining for honorably discharged veterans and volunteer firefighters.”

Concluding that collective bargaining over police disciplinary matters was prohibited, without exception, Supreme Court found that PERB's decision was affected by an error of law and granted the City’s petition challenging PERB’s ruling.

The Appellate Division affirmed the Supreme Court’s holding, explaining that “Although strong state public policy favors collective bargaining, there exists a "competing policy … favoring strong disciplinary authority for those in charge of police forces," citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563.

The Appellate Division said that "legislation specifically commits police discipline to the discretion of local officials . . . the policy favoring [local] control over the police prevails, and collective bargaining over disciplinary matters is prohibited." As the issue here concerned the relative weight to be given to competing policies, rather than the application of the Taylor Law to particular facts, Appellate Division said that “no deference is accorded to PERB's determination.”

Noting that the Middletown City Charter grants the Board of Police Commissioners the power to "enact, modify and repeal orders, rules and regulations for the . . . discipline of the police department" and "[t]o punish . . . any police officer of the city," these enactments "state the policy favoring management authority over police disciplinary matters in clear terms" and "express a policy so important that the policy favoring collective bargaining should give way."

As to PERB finding that such prohibition against collective bargaining does not apply to honorably discharged veterans and volunteer firefighters, the Appellate Division said that it agreed with Supreme Court “that PERB's determination in this regard was affected by an error of law and, therefore, cannot be upheld.” Specifically, the court decided that PERB's reliance on case law holding that the special protections granted to honorably discharged veterans and volunteer firefighters under Civil Service Law former §22 trump police disciplinary procedures set forth in a local charter was misplaced.*

The bottom line: the Appellate Division conclude that the discipline of Middletown’s police force, including honorably discharged veterans and volunteer firefighters, is not a permissible subject of collective bargaining.

* §22.1 of the Civil Service Law (Chapter 15 of the Laws of 1909, as amended), sets out procedures to be followed with respect to the “Removal of veterans and volunteer firemen” while §22.2 of such law sets out procedures with respect to the “Removal generally” of “officers and employees holding a position in the competitive class of the civil service of the state or any civil division or city thereof.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01400.htm
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