Monday, May 02, 2011

Mandatory subjects of negotiations

Mandatory subjects of negotiations
Carmel PBA v PERB, 267 AD2d 858

The Carmel PBA case involves a “legal interpretation” made by the New York State Public Employment Relations Board [PERB].

The Appellate Division ruled that the administrative agency’s determination would be upheld if it is not affected by an error of law, is neither arbitrary nor capricious, and does not constitute abuse of discretion.

The case arose when PERB ruled that Town of Carmel’s changing an “early vacation procedure” was a nonmandatory subject of collective bargaining. The PBA challenged PERB’s decision, claiming that in addition to being arbitrary and capricious and against the substantial weight of the evidence, the ruling constituted “an error of law.”

Carmel had in place a scheme for selecting vacation to be taken during the year -- “vacation picks.” PBA members could select their vacation before the beginning of the year in which vacation time is to be taken (“early vacation picks”) or during the year prior to the taking of the requested vacation time (“later vacation picks”). In addition, a “minimum staffing level rule” required that at least four police officers be assigned to patrol shift.

The Town changed the “staffing” requirements to be observed in selecting vacations in October 1995. The new procedure:

1. Barred the “overlap of vacations” by police officers and sergeants on the same tour; and

2. If the department had only one lieutenant, the chief of police, lieutenant and/or sergeant could not “overlap [their respective] vacations.”

PBA filed an improper practice charge with PERB contending that the Town violated Section 209-a(1)(d) of the Civil Service Law when it unilaterally imposed the new policy.

Initially, PERB deferred its consideration of the charge because a grievance arbitration concerning the matter was pending.

The arbitrator ruled that the parties’ 1994 agreement’s provision concerning vacation selection did not apply after 1995. After the arbitrator’s issued the award, PERB accepted jurisdiction and addressed the merits of the PBA’s petition.

PERB decided that “the vacation selection procedure was necessarily and “inextricably entwined with the Town’s staffing determination.” This, it held, meant that it was not a mandatory subject of negotiation. The PBA appealed.

The Appellate Division commenced its review by pointing out that while “the refusal of public employers to negotiate in good faith with recognized employee organizations concerning the terms and conditions of employment constitutes an improper employment practice within the meaning of Section 209-a,” not all terms and conditions of employment are subject to mandatory negotiation.

What is a mandatory subject of collective bargaining?

The court said that PERB has the authority to make this determination and so long as its “interpretation is legally permissible and * * * there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation.”

Accordingly, said the court, PERB’s determination that the Town’s policy prohibiting certain overlaps of vacation was not a mandatory subject of collective bargaining under the Taylor Law must be confirmed.

In explaining its ruling the Appellate Division cited International Assn. of Firefighters of City of Newburgh, Local 589 v Helsby, 59 AD2d 342, 345, leave to appeal denied, 43 NY2d 649.

In that decision the court held that the number of employees the municipality will hire “is clearly a basic policy decision to be made solely by the municipal governing body as to the allocation of its resources and the extent and quality of fire protection to be provided by the [municipality] for its citizenry.”

How does this impact on the PBA’s claim that the Town should be required to negotiate the policy change? The Appellate Division’s answer:

Since the Town’s determination to increase its minimum staffing level is clearly a basic policy question for it to make, to hold that here is a duty to bargain the early approval of overlapping vacations is incompatible with the Town’s managerial prerogative to set and change minimum staffing levels at the employer’s discretion.

Finding that PERB’s decision was not arbitrary or capricious or based on an error of law, the Appellate Division dismissed the PBA’s appeal.



Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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