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Monday, September 12, 2011

Negotiating General Municipal Law Section 207-a procedures


Negotiating General Municipal Law Section 207-a procedures
City of Syracuse v Public Employment Relations Board, 279 AD2d 98

Two firefighters employed by the City were injured in the line of duty and began receiving salaries and benefits pursuant to General Municipal Law [GML] Section 207-a. The City subsequently received medical reports indicating that both firefighters were capable of performing light duty work.

Consistent with GML Section 207-a(3), the firefighters were directed to report for light duty assignments. One firefighter refused to report for light duty; the other reported to the light duty assignment late and then left early.

As to the authority for requiring a firefighter to perform “light duty,” Section 207-a(3) essentially provides that if a fireman not eligible for or not granted an accidental disability retirement allowance or retirement for disability incurred in performance of duty allowance or similar accidental disability pension but is nevertheless, in the opinion of such health authorities or physician, unable to perform his regular duties as a result of such injury or sickness but is able, to perform specified types of light-duty:

Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such firefighter if he shall refuse to perform such light-duty consistent with his or her status as a firefighter if the same is available and offered to him or her.

A hearing to determine “the possible termination” of their Section 207-a benefits were scheduled for both firefighters.

The Union, Firefighters Local 280, wrote to the fire chief claiming that “the procedures to determine whether GML Section 207-a benefits should be terminated were a subject of mandatory bargaining and that the implementation of any procedures, including these hearings, without the approval of the Union would constitute an improper practice.”

Notwithstanding this communication, the City went forward with the hearing. One firefighter, Firefighter A, appeared at his hearing while Firefighter B failed to appear at the hearing as scheduled and his hearing was held “in absentia.”

The hearing officer, the deputy chief, found that both Firefighter A and Firefighter B had failed to comply in a reasonable and prudent manner with the fire chief's directive. Their Section 207-a benefits were discontinued.

Local 280 filed an improper practice charge with PERB, alleging that the City violated Civil Service Law Section 209-a (1) (d) by unilaterally implementing procedures to determine whether to terminate Section 207-a benefits despite Local 280's objection to those procedures on the ground that they were the subject of mandatory bargaining.

Syracuse argued that the forfeiture of benefits under Section 207-a for refusal to perform an appropriate light duty assignment was not a mandatory subject of collective bargaining under the Taylor Law.

PERB's Administrative Law Judge [ALJ] dismissed the improper practice charge and Local 280 appealed to PERB. PERB, reversing its ALJ's determination and ruled that the City had committed an unfair labor practice by unilaterally establishing the hearing procedure challenged by the Local.

Syracuse filed an Article 78 petition seeking to annul PERB's determination.

The Appellate Division sustained PERB's determination, explaining:

1. Under Section 207-a, a firefighter injured in the line of duty may continue to receive salary and benefits.

2. The employer has the authority to make an initial determination to order a firefighter to report for a light duty assignment, which authority is not a subject of mandatory bargaining, citing Schenectady Police Benevolent Association v PERB, 85 NY2d 480, a case involving light duty assignments for police officers pursuant to GML Section 207-c.

3. The procedures for challenging the employer's initial determinations under Section 207-a(3) are, however, subjects of mandatory bargaining, citing City of Watertown v PERB, 95 NY2d 73.

The Appellate Division, quoting from Watertown, said “the public policy of this State in favor of collective bargaining is 'strong and sweeping' ... [and] [t]he presumption in favor of bargaining may be overcome only in 'special circumstances' where the legislative intent to remove the issue from mandatory bargaining is 'plain' and 'clear.'”

Here, said the court, the City's unilateral promulgation of administrative procedures to be used to determine the continued eligibility of a firefighter for Section 207-a benefits in the event he or she fails to comply with a directive to report for light duty constituted an improper practice within the meaning of the Taylor Law.

According to the ruling, the Union objected to the City's unilateral implementation of procedures to be used to determine whether to terminate GML Section 207-a benefits. The Appellate Division ruled:

Where, as here, a dispute not covered by the existing collective bargaining agreement arises during the term of an existing collective bargaining agreement, the parties to the agreement have a statutory duty to bargain collectively to resolve the dispute. A party's refusal to do so constitutes an improper practice.

The bottom line: the court said that “under the Taylor Law, the procedures to be used in determining whether to terminate section 207-a benefits are a subject of mandatory bargaining.”

Another element in the case was Syracuse's argument that Local 280 had failed to file a “notice of claim” and thus was barred from proceeding with its action. The Appellate Division, 4th Department, did not agree.

It said that Syracuse claim relied a decision by the Appellate Division, Third Department, Deposit Central School District v PERB, 214 AD2d 288, holding that the notice of claim requirement in Education Law Section 3813 is a condition precedent to PERB's exercise of jurisdiction over an improper practice charge. “The City's “reliance on those Third Department cases is misplaced.”

Why? Because, explained the court, “[i]t would thus be unfair for similarly situated civil service employees employed by other municipalities without such a notice of claim requirement to be allowed to pursue an improper practice charge against their respective municipalities without the necessity of filing a notice of claim while requiring the Union employees herein to file a notice of claim.”

In addition, the Appellate Division commented that “both employers and employee organizations may file an improper practice charge with PERB and it would be inequitable to place a requirement on an employee organization that is not placed on an employer; an employee organization would be required to file a notice of claim while an employer would not.

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/

A Reasonable Penalty Under The Circumstances 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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