Wednesday, March 20, 2013

If a past practice involving a mandatory subject of negotiation is established the Taylor Law bars the employer from unilaterally discontinuing that practice

If a past practice involving a mandatory subject of negotiation is established the Taylor Law bars the employer from unilaterally discontinuing that practice
Town of Islip v New York State Pub. Empl. Relations Bd., 2013 NY Slip Op 01562, Appellate Division, Second Department

The Public Employment Relations Board [PERB] affirmed a decision of its administrative law judge that found, after a hearing, that an improper practice charge filed by Local 237, International Brotherhood of Teamsters and United Public Service Employees Union, violated Civil Service Law §209-a(1)(d).

The genesis of Local 237 filing an improper practice charge with PERB was the Town’s unilaterally discontinued an alleged past practice involving the use of Town vehicles by certain unit members to commute. PERB directed the Town to reinstate the practice and to "make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the vehicle assignments, if any, together with interest at the maximum legal rate."

The Town had contended that the practice violated its Code of Ethics and Financial Disclosure Law which, in pertinent part, provided that "[n]o officer or employee shall request or permit the use of Town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business. In addition, the Town had a written policy concerning the use of Town vehicles.

According to the decision “For at least 15 years prior to 2007, the policy was frequently ignored with respect to assignments of Town vehicles for permanent use. In late 2007, the Town and a union representing certain Town employees were negotiating two new collective bargaining agreements. In the course of negotiations the Town proposed a provision concerning employee use of Town vehicles, but then withdrew its proposal, contending that the permanent use of Town-owned vehicles was not a mandatory subject of collective bargaining.

When negotiations were at an impasse in early 2008 on various issues, the Town Board passed a resolution limiting the assignment of "take-home" vehicles. As a result of this action approximately 45 unit members lost their assignments of Town vehicles for their permanent use.

The two unions then representing the affected employees filed an improper practice charge with the PERB contending that the long-extant practice of assigning Town vehicles for permanent use to persons who did not qualify for them under the Town's written policy had given rise to a "past practice" as an economic benefit. Thus, argued the unions, “Any change in that practice … was a 'mandatory' subject of collective bargaining, and the Town's change in policy constituted an improper employment practice."

A PERB administrative law judge determined that the longstanding practice of assigning Town vehicles to employees for permanent use constituted a past practice regarding the terms and conditions of employment, notwithstanding that those permanent assignments were in conflict with the Town's written policy. The Town was directed to restore the vehicles to the employees and compensate the employees for the period during which they were without the vehicles. PERB, in its final determination, affirmed the administrative law judge's decision.

The Appellate Division sustained PERB’s decision, explaining that under the Taylor Law a public employer is obligated to negotiate in good faith with the bargaining representative of its current employees regarding the "terms and conditions of employment" and the failure to do so constitutes an improper employment practice.

Further, said the court, pursuant to this duty to negotiate, where a past practice between a public employer and its current employees is established involving a mandatory subject of negotiation, the Taylor Law bars the employer from discontinuing that practice without prior negotiation, citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326.

As PERB's determination was "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law," the Appellate Division said that it must determine whether PERB's decision was supported by "substantial evidence." In addition, in light of certain of the Town's contentions,* the Court said that it must also inquire whether the determination "was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

The Appellate Division’s conclusions:

1. The PERB's determination was not affected by an error of law, as the Town could be required to collectively bargain over the issue. The court explained that the Town government was responsible for administering the Ethics Code and for managing its vehicle fleet. Yet, as substantial evidence in the record established, the Town frequently and openly ignored that Code and its policy for managing its vehicle fleet, only to contend later that the Code allowed it to act unilaterally in taking the vehicles away from the employees who had been permanently provided with them. PERB, said the court, was not required to give more effect to the Town Ethics Code than the Town itself gave to it.

2. For similar reasons, the Appellate Division ruled that it cannot be said as a matter of law that it is unreasonable for employees to rely on the administering authority's interpretation and implementation of its policy and Ethics Code. Consequently, the PERB's determination was not affected by an error of law, was not arbitrary and capricious, did not constitute an abuse of discretion.

In the words of the court, “The evidence in the record supported the PERB's determination that the assignment of Town vehicles to the affected employees for permanent use was unequivocal and continued uninterrupted for a period of time which, under the circumstances, created a reasonable expectation among the affected unit employees that the practice would continue.

“The assignment of Town vehicles by Town officials to nonqualifying employees was done openly and without any indication to the employees that it was other than legitimate. The payroll office was notified to deduct a certain amount from the employees' paychecks to account for the value of the benefit. Moreover, the practice continued unabated for many years.

“Consequently, the Appellate Division ruled that PERB properly determined that the assignment of vehicles to the affected employees for permanent use constituted a past practice as to a term or condition of employment, and that the Town engaged in an improper practice by refusing to engage in collective bargaining as to a change to that term or condition.”

* The Town claimed that as its Ethics Code forbids the use of Town vehicles in violation of Town policy, the Town could not be forced to engage in collective bargaining over the issue. In addition, the Town argued that, as a matter of law, the employees could not have a reasonable expectation that the assignment of Town vehicles for permanent use would continue, because such an assignment of vehicles violated the Town Ethics Code. 

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