Tuesday, October 27, 2015

Absent the employer’s demonstrating its actions were motivated by legitimate business reasons, such actions may constitute an unfair labor practice


Absent the employer’s demonstrating its actions were motivated by legitimate business reasons, such actions may constitute an unfair labor practice
Hudson Val. Community Coll. v New York State Pub. Empl. Relations Bd., 2015 NY Slip Op 07731, Appellate Division, Third Department

In this action the Appellate Division reviewed a challenge to the Public Employment Relations Board’s [PERB] finding that Hudson Valley Community College [Hudson Valley] committed an improper employer practice.

Hudson Valley Community College Non-Instructional Employees Union (NIEU) representing certain classified service staff members employed by Hudson Valley claimed that Hudson Valley agreed to pay overtime at a rate of time and a half for work performed by NIEU members in "second jobs" outside the scope of their regular employment duties.

A dispute arose as to a particular overtime payment and NIEU and Hudson Valley engaged in collective bargaining concerning overtime compensation for second jobs. Unable to reach agreement, Hudson Valley's director of human resources issued a memorandum announcing that Hudson Valley would no longer hire NIEU members for any second jobs and would instead retain non-NIEU members, such as faculty members and temporary staff, for such positions.

NIEU filed an improper practice charge against Hudson Valley with PERB and, following a hearing, an Administrative Law Judge determined that Hudson Valley's decision not to hire NIEU members for second jobs constituted retaliation against NIEU for its advocacy in the underlying dispute in violation of Civil Service Law §209-a(1)(a) and (c). 

Ultimately PERB affirmed the administrative law judge’s decision and directed Hudson Valley, among other things, to rescind the director of human resources’ memorandum, restore NIEU members to the second jobs they had previously held and pay them back wages with interest. Hudson Valley appealed.

The Appellate Division said that in order to prove its claim that Hudson Valley had engaged in an improper practice, NIEU was required to establish that:

[1] NIEU was engaged in activities protected by the Taylor Law;

[2] Hudson Valley knew of these activities; and

[3] Hudson Valley took the challenged action because of such activities.

Further, explained the court, if the charging party proves a prima facie case of improper motivation, the burden of persuasion shifts to the party charged with the unfair labor practice to establish that its actions were motivated by legitimate business reasons.

Here the parties agreed that NIEU's advocacy on the overtime issue was a protected activity and that Hudson Valley was aware of NIEU's advocacy. Thus the issue to be determined was whether Hudson Valley's decision to stop hiring NIEU members for second jobs was improperly motivated.

Hudson Valley's director of human resources had testified that the parties became "fairly entrenched" in their positions on this and other disputed overtime issues. As a result Hudson Valley decided "to eliminate the problem by not having [second] jobs available." The director of human resources circulated a memorandum stating that "[b]ecause of the intransigence of NIEU leadership, [Hudson Valley] can no longer hire current classified staff members for any secondary functions, no matter how brief or infrequent, as this results in a demand for 'overtime' payment for any work beyond normal schedule." 

In his testimony the director of human resources said that his use of the word "intransigence" was not “anti-union animus” but, instead, he was attempting to ensure that Hudson Valley's supervisory staff did not blame the administration for the conflict.

The Appellate Division ruled that memorandum and the director of human resources' testimony constitute substantial evidence supporting PERB's determination that Hudson Valley made its decision to stop hiring NIEU members for second jobs because of NIEU's advocacy, shifting the burden to Hudson Valley to establish that it had valid economic reasons for its actions.

Considering economic reasons identified to support Hudson Valley’s decision, the Appellate Division said that there were specific examples of higher overtime rates being paid to employ NIEU members for some services provided. However, said the court, there was also testimony that non-NIEU members who replaced NIEU members in certain second jobs — such as faculty members who were hired to proctor examinations — were paid at a higher hourly rate than the overtime compensation that would have been paid to NIEU members and that the director of human resources acknowledged that non-NIEU members were hired even in instances when doing so was more expensive. *

The Appellate Division ruled that substantial evidence in the record supported PERB's determination that Hudson Valley did not meet its burden to establish that its actions were motivated by valid economic concerns and found that Hudson Valley had stopped hiring NIEU members for second jobs in retaliation for NIEU's advocacy on the overtime issue.

In response to Hudson Valley’s claim that PERB’s order could not be reasonably applied because some of the second jobs in question no longer existed and some NIEU members who previously held second jobs were now retired or had left Hudson Valley's employment, the court said that it could not consider this aspect of Hudson Valley’s argument as this was not part of the administrative record before PERB when it crafted its remedial order.

Accordingly the Appellate Division remitted the matter to PERB for a determination as to which NIEU members, if any, [1] can be reinstated to second jobs that they previously held and, or, [2]  receive back pay.

* At least one NIEU member who had been employed in a second job was paid a flat annual stipend that was unaffected by overtime rates, but nevertheless lost the position as a result of Hudson Valley’s decision.

The decision is posted on the Internet at:

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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