New York Public Personnel Law: Management prerogatives - nonmandatory subjects of negotiations

September 06, 2011

Management prerogatives - nonmandatory subjects of negotiations

Management prerogatives - nonmandatory subjects of negotiations
City of Niagara Falls v Niagara Falls Police Captains and Lieutenants Association, 33 PERB 3058

Niagara Falls filed an unfair labor practice charge with PERB contending that the Niagara Falls Police Captains and Lieutenants Association included two proposals that were nonmandatory subjects of negotiation in its petition for interest arbitration.

One proposal involved “qualifications” for appointment [proposal 1]; the second, proposal 13, concerned retirement benefits. PERB agreed with its Administrative Law Judge that both proposals were nonmandatory or prohibited subjects of collective bargaining and thus constituted excluded subjects for the purposes of compulsory interest arbitration.

The first proposal contained two basic elements.

The first element addressed qualifications for appointment to a position. PERB said that “qualifications for a position are a management prerogative and, thus, a nonmandatory subject of bargaining.”

However, coupled with this demand was a proposal setting out a procedure in which an appointment to a vacant position would be made by selecting the appointee from among the three most senior officers.

PERB said that it had previously held that “procedures to be used to fill a position, e.g., seniority, are a mandatory subject of negotiations.

However, coupling a mandatory demand with a nonmandatory demand results in both being deemed nonmandatory. PERB, citing it ruling in Matter of Police Benevolent Association of the City of White Plains, 33 PERB 3025, said:

“We have held that where a bargaining proposal contains two or more inseparable elements, i.e., a unitary demand, at least one of which is nonmandatory, the entire proposal is deemed nonmandatory.”

As to the second item objected to by Niagara Falls, proposal 13 provided that “[i]n the event the New York State Legislature authorizes the elimination of any restrictions on Tier II employees, the City will eliminate such restrictions.”

The Association argued that the ALJ incorrectly held that its proposal 13 involved additional Retirement and Social Security Law Section 443(f) pension benefits. PERB rejected the Association's characterizing proposal 13 as a non-retirement item.

PERB decided that the demand, in fact, was a retirement matter and that Section 443(f) benefits are not subject to compulsory interest arbitration.

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