October 4, 2017

PERB will defer to an arbitration award involving the same parties and the same issue in determining an improper practice charge only in limited circumstances


PERB will defer to an arbitration award involving the same parties and the same issue in determining an improper practice charge only in limited circumstances
Matter of Buffalo Teachers Fedn., Inc. v New York State Pub. Empl. Relations Bd., 2017 NY Slip Op 06800, Appellate Division, Fourth Department

The Buffalo City School District [District] adopted a resolution naming a single health insurance carrier for the teachers in its employ. This, however, constituted a change to the of the terms of the controlling collective bargaining agreement [CBA] between the District and the Buffalo Teachers Federation [Federation], the teachers' collective bargaining representative. The District explained that "it was forced either to make that change to the CBA or to make 'massive cuts' in other areas." The Federation filed a grievance and demanded that the District's actions be submitted to arbitration.

The District subsequently sent a letter to 88 teachers informing them that they were to be laid off because of "the failure to reach an agreement on a single health insurance carrier had forced the District to make budgetary cuts elsewhere." Ultimately the District discontinued the services of the 88 teachers and implemented its resolution naming a single health insurance carrier. The Federation filed an improper practice charge alleging violations Civil Service Law §209-a (1) (a) and (d) of the Taylor Law (Civil Service Law Article 14 with New York State Public Employment Relations Board [PERB]

While that charge was pending before PERB, the grievance proceeded to arbitration. The  arbitrator concluded that the District had discharged the teachers "wrongfully, in furtherance of its ill-conceived effort to force the Union into submissive acceptance of the unilateral modification" to the CBA. The District was directed to reinstate the teachers with back pay whereupon the District filed an Article 75 petition seeking to vacate the arbitration award.

Supreme Court confirmed the arbitration award and the District appealed that ruling. The Appellate Division ruled that "the arbitrator acted in excess of the power granted to him with respect to that part of the award concerning the teachers" and vacated that part of the award providing for the reinstatement of the teachers.*

The improper practice charge, however,  proceeded before PERB on a stipulated record before an Administrative Law Judge [ALJ]. The ALJ concluded that the discharge of the 88 teachers was "the final step in the preconceived scheme designed to pressure [the Federation] to drop the single carrier grievance" and thus violated the Taylor Law and, as the arbitrator had ruled, the ALJ ordered the District to reinstate the teachers with back pay.The District filed exceptions to the ALJ's decision with PERB. 

PERB relying on the "long-recognized distinction between a threat of retaliation because either a union or covered employee exercises protected rights and a statement that there might be layoffs if the exercise of protected rights results in cost increases for the employer," concluded that the District "announced the layoffs as a decision that had already been made and explained the underlying reason for the layoffs." Thus, ruled PERB, "the  discharge of the teachers did not violate the statute" and reversed that part of the ALJ's determination that directed that the District reinstate the 88 teachers. The Federation then initiated the instant proceeding seeking to annul PERB's determination.

The Appellate Division observed that its review was limited to whether PERB's determination was affected by an error of law, arbitrary and capricious or an abuse of discretion, or unsupported by substantial evidence. The court then explained that  ... "the agency charged with implementing the fundamental policies of the Taylor Law, [PERB] is presumed to have developed an expertise and judgment that requires us to accept its decisions with respect to matters within its competence."

The court rejected the Federation's contention that PERB's "determination was arbitrary and capricious inasmuch as PERB departed from its own precedent in refusing to defer to the arbitration award." The Appellate Division commented that although an administrative body acts arbitrarily and capriciously in departing from its own precedent and failing to explain the reasons for the departure, here PERB's determination was consistent with its own precedent. PERB, said the court, "will defer to an arbitration award only in limited circumstances and it usually does not do so where the charging party alleges a violation of Civil Service Law §209-a(1)(a).

As the Federation alleged the District had violated §209-a(1)(a) and (d), it was the precedent of PERB to refuse to defer to the arbitration award in this case. Further, said the court, to the extent that the arbitrator made findings with respect to the layoffs, it was reasonable for PERB not to defer to the arbitration award because the arbitrator had been earlier found to have exceeded the scope of his authority and his findings were inconsistent with PERB's interpretation of the statute.

Although it is unlawful for a public employer "to interfere with, restrain or coerce public employees in the exercise of [certain] rights," such as their right to participate in organizing activity, "for the purpose of depriving them of such rights," in this instance the District had explained "that layoffs were a cost-cutting measure made necessary by the failure to reach an agreement on health insurance." The Appellate Division concluded that, based upon its review of the record, "it was rational for PERB to determine that the layoffs were not motivated by an improper purpose." 


The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.