November 19, 2018

Improper practice determinations


Improper practice determinations
Selected determinations by the Public Employment Relations Board

Summarized below are selected rulings by PERB administrative law judges concerning improper practice charges:

1. BREACH OF CONTRACT: Allegations that an employee organization has refused to schedule disciplinary hearings in accordance with the time limits set out in the collective bargaining agreement did not constitute an improper practice within the meaning of the Taylor Law. PERB does not have jurisdiction to resolve alleged breaches or violations of the terms of a collective bargaining agreement. PERB does have jurisdiction, however, where it is shown that the "at-issue contractual provision has been totally abandoned." [Matter of the Westchester County Correction Officers Benevolent Association, 30 PERB 4502; Monte Klein, Director of Employment Practices and Representation]

2. BARGAINING UNIT WORK: A school district did not commit an improper practice by unilaterally entering into an agreement with a BOCES which resulted in BOCES supplying a remedial mathematics teacher notwithstanding the fact that teaching remedial mathematics was "exclusive bargaining unit work." Citing Webster Central School District v PERB, 75 NY2d 619, PERB's administrative law judge held that "the decision of a school board to contract for a BOCES instructional program" is not a mandatory subject of collective bargaining. [Matter of Odessa-Montour Central School District, 30 PERB 4505; Administrative Law Judge J. Albert Barsamian]

3. INTEREST ARBITRATION: A party may not convert a nonmandatory subject of collective bargaining under the Taylor into a mandatory subject of negotiations by submitting it to compulsory interest arbitration. It was an improper practice for the employer submit its contract  demands seeking to eliminate contract provisions concerning minimum staffing and call-back pay to compulsory interest arbitration. Matter of Glens Falls Firefighters Union, 30 PERB 4506, Kenneth J. Toomey, Assistant Director of Public Employment Practices and Representation.

4. TRANSFER OF SERVICES: It was an improper practice for a school district to unilaterally transfer its printing services then being exclusively performed by bargaining unit employees to a BOCES. Although the unilateral transfers of services to a BOCES is permitted, such transfers are limited to educational services and "services closely related thereto." PERB's administrative law judge ruled that the Webster ruling [75 NY2d 619 and §1950 of the Education Law cannot be read to encompass printing functions as "educational services and services closely related thereto ... by whatever name." Matter of Vestal Employee Association, NEA/NY, 30 PERB 4515, Administrative Law Judge J. Albert Barsamian.

5. EXPIRATION OF AGREEMENT: The employer violated the Taylor Law by refusing to continue paying the uniform allowance contained  in the parties expired collective bargaining agreement. Inclusion of the term "of each year of the agreement" did not serve to limit the payment of the benefit only for the life of the agreement absent a "sunset provision" demonstrating that the parties intended to limit payment of the benefit to the life of the agreement. [Matter of the Division of State Police, 30 PERB 4515, Administrative Law Judge Susan A. Comenzo]


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