October 31, 2019

PERB's authority to initiate "jurisdictional deferral" and "merits deferral" in considering an improper practice charge filed pursuant to §209-a(1)(d) of the Civil Service Law


New York State[State] and the Public Employees Federation [PEF], representing state employees in the Professional, Scientific and Technical Services Unit, were parties to a collective bargaining agreement [CBA] from April 2011 to April 2015. Certain employees working at the Rochester Psychiatric Center [RPC], a treatment facility overseen by the Office of Mental Health were in the collective bargaining unit represented by PEF.

RPC had implemented a policy in 1982 whereby employees were not routinely required to submit doctor certificates for absences from work due to illness or injury, with the exception of six specified reasons that "management will require that a doctor's certificate be submitted." In December 2012, RPC's director of nursing sent an email to the entire nursing staff stating that the coverage needs of its patients required a change of policy and that "[l]ast minute call [ins] will require documentation supporting the [rationale] for the absence" for specified time periods during the 2012-2013 holiday season.

PEF filed an improper practice charge with Public Employment Relations Board [PERB] alleging that petitioner violated Civil Service Law §209-a(1)(d) by, among other things, unilaterally imposing a requirement that all employees submit medical documentation for unscheduled absences from work during the holiday season — a disciplinary work rule restricting employees' access to sick leave.

Ultimately PERB, relying [1] jurisdictional deferral and [2] a merits deferral, sustained an Administrative Law Judge's determination that State had violated §209-a(1)(d) and ordered, among other things, that RPC cease and desist from implementing the new requirement and State initiated a CPLR Article 78 proceeding seeking to annul PERB's determination.

With respect to PERB's jurisdictional deferral policy, the Appellate Division noted that "PERB has consistently interpreted Civil Service Law §205(5)(d) to deprive it of jurisdiction over failure-to-negotiate improper practice charges when the underlying disputes are essentially contractual, in favor of resolving the dispute through the parties' grievance-arbitration machinery, or resort to the courts. Where the CBA provides the charging party with a reasonably arguable source of right with respect to the subject matter of the charge, PERB "has either dismissed the improper practice charge outright or conditionally dismissed the charge pursuant to its jurisdictional deferral policy."

The CBA is silent on the issue of requiring doctor certificates for sick leave during the holidays -- the thrust of PEF's improper practice charge. As PEF alleged that State had violated statutory rights under §209-a(1) (d) by failing to bargain over a past practice that was not specifically covered by the CBA the Appellate Division concluded that "the matter is not a breach of contract dispute and PERB's jurisdictional limitation was not triggered."

As to PERB's declining to exercise a merits deferral, which, in contrast to a jurisdictional deferral, "utilizes agreed-upon binding arbitration to determine contractual grievances in furtherance of the stated goal of the Taylor Law to encourage employers and public employees to agree upon dispute resolution procedures, the Appellate Division held that PERB's action was proper. Further, explained the court, such a decision merely results in a conditional dismissal and the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process."

As the "merits deferral policy has been judicially recognized in the past and the courts have generally deferred to PERB's interpretation in this regard, the Appellate Division ruled that "PERB's decision not to invoke such policy here was proper under the circumstances."*

Noting that a public employer violates §209-a(1) if it alters a past practice** that impacts a mandatorily negotiable subject, the court explained that "it is well-settled that sick leave is a mandatory subject of negotiation" as are the "procedures and policies for granting or terminating sick leave are mandatory."

Here, said the Appellate Division, the record demonstrates that, subject to certain exceptions, since 1982 RPC did not routinely require an employee to submit a doctor's certificate for each instance of unscheduled absence and none of these exceptions related to the new restrictions that RPC imposed. As the State has not presented any evidence demonstrating that it negotiated with PEF prior to altering this policy, substantial evidence supports PERB's determination that a past practice existed and that the State engaged in an improper practice by failing to engage in collective bargaining prior to altering the past practice to require medical documentation for individual days of sick leave.

Accordingly, the Appellate Division ruled that PERB had properly granted a remedial order*** in this matter which, among other things, mandated that the State to "cease and desist from enforcing the change in policy, except as detailed in RPC's original written policy."

* In reviewing these issues, a court's inquiry is "limited to whether PERB's decision was supported by substantial evidence which, in turn, depends upon whether there exists a rational basis in the record as a whole to support the findings upon which such determination is based.

** For a past practice to be binding, the Appellate Division said the practice must be "unequivocal and continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected bargaining unit employees that the practice would continue."

*** The remedial order also required the State to "[m]ake unit employees whole for wages and benefits lost, if any, as a result of [petitioner's] implementation of the at-issue sick leave usage policy concerning Christmas and New Year's holidays, with interest at the maximum legal rate."

The decision is posted on the Internet at:


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