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Thursday, October 02, 2014

Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.


Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.
Matter of the Town of Dresden, PERB decision U-7383

The genesis of this decision was the Town Supervisor refusal to sign the negotiated Taylor Law agreement because he contended that he lacked the authority to reach a final agreement without the prior approval of the Town Board. As a result, the Union filed an improper practice charge with PERB.

Distinguishing between the different roles played administrators and legislators in Taylor Law negotiations. PERB said that the Taylor Law contemplates negotiations will be an executive rather than a legislative process.* Thus an agreement is between the administrative and the Union negotiating teams is binding on the parties.

However, certain provisions set out in the agreement may require the approval by the legislative body having jurisdiction such as a County Legislature, a Town Board or a School Board before they may take effect  Typically these provisions requiring the appropriation of funds necessary to implement the terms and conditions of the agreement and such terms and conditions agreed upon are not enforceable until the necessary legislative action is taken.

§204-a.1 of the Civil Service Law provides that “Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in  type not smaller than the largest type used elsewhere in such agreement:

"It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval."
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PERB has also determined that a legislative body may not unilaterally reserve the power to ratify the entire agreement although the parties may agree that the result of their negotiations will be subject to the legislative body's ratification.

Further, in the event members of the legislative body actually participates in the negotiations, such members' agreements are binding as to them and such persons cannot later vote against the agreement on the theory that they are now wearing their "legislative" hat as PERB’s decision in Matter of Jeffersonville-Youngsville CSD, U-6341, demonstrates.

In this instance the School District’s team consisted of the School Superintendent and three School Board members. The District’s negotiating team and the Union’s negotiating teams had agreed upon all terms of a proposed collective bargaining agreement except a "2nd year salary offer." The District’s team obtained authority to place an additional $2,000 "on the table" from the seven member School Board. However, during the final day of negotiations the Union accepted a "2nd year salary offer." offer that provided for more money than the additional $2,000 earlier authorized by the Board.

Although the Union's member subsequently ratified the agreement, the full School Board did not, with two to the three Board members of the District's negotiating team voting against the "ratification."

When the Superintendent refused to execute a "memorandum agreement," the Union filed an improper employer practice claim with PERB. PERB directed the Superintendent to sign the memorandum agreement with the Union and, if requested, to sign "a formal ... contract" reflecting the salary agreements the District’s team had reached with the Union.

In addition, PERB indicated that as to the two Board Members on the District’s negotiating team voting against ratification in their "Board Member" capacity, "each member of a negotiating team is obligated to support every part of an agreement unless the other party has been advised that he (or she) dissented from the part of the agreement which he subsequently opposed" in the course of negotiations.

As noted above, the Taylor Law provides that any provision of an agreement that requires action by the relevant legislative body such as the allocation of necessary funds is not to take effect until the legislative body concerned acts to provide the required monies. In this instance presumably all three "District negotiating team/Board members" are required to vote in favor of the allocation of additional funds ultimately agreed upon by the District and employee negotiating teams consistent with their "District team position" in their capacity as a member of the School Board.

The Jeffersonville-Youngsville CSD decision illustrates the " unintended consequences" that could result when a member of the relevant legislative body serves on the employer's negotiating team.. 

* Civil Service Law §201.12 provides as follows: 12. The term "agreement" means the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization which becomes a binding contract, for the period set forth therein, except as to any provisions therein which require approval by a legislative body, and as to those provisions, shall become binding when the appropriate legislative body gives its approval." [See, also, Civil Service Law §204-a.1]
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