Friday, September 30, 2011

Negotiating a disciplinary procedure not a mandatory subject of collective bargaining


Negotiating a disciplinary procedure not a mandatory subject of collective bargaining
City of Mount Vernon v. Cuevas, 289 A.D.2d 674 [Leave to appeal denied, 97 N.Y.2nd 613]

In considering the appeal of the City of Mt. Vernon, the Appellate Division ruled that under certain circumstances, negotiating a contract disciplinary procedure is not a mandatory subject of collective bargaining under the Taylor Law.

Mt. Vernon had appealed a PERB determination that held that its disciplinary procedures were a mandatory subject of collective bargaining in response to the City's claim that its police officers union had submitted a number of nonmandatory or prohibited subjects of collective bargaining for compulsory interest arbitration, one of which involved disciplinary procedures.

The City's argument: Its 1922 City Charter established disciplinary procedures for its police officers and the continuation of such procedures is protected by Civil Service Law Section 76(4). Accordingly, the City said could not be forced to negotiate its disciplinary procedure on the theory that it was a term or condition of employment.

Supreme Court agreed, determining that PERB's decision was "irrational, unreasonable and legally impermissible" and granted the City's motion.

PERB appealed contending that because Section 76(4) was passed years before the Taylor Law, it “could not reasonably be read to reflect ‘any intent on the part of the Legislature to exclude or preclude bargaining as to discipline’”.

Section 76(4), in pertinent part, provides:

Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter.

The Appellate Division said that although the Taylor Law requires good faith bargaining concerning all terms and conditions of employment which have been held to be a mandatory subject of collective bargaining, here the police officer discipline procedures contained in the City's Charter enacted in 1922 are specifically protected from repeal or modification by Section 76(4).

Affirming the lower court's ruling, the Appellate Division held that under these circumstances, the disciplinary procedures applicable to Mt. Vernon's police officers are not mandatory subjects of negotiation. 

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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