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May 19, 2020

New training requirements contained in the employer's operations order held not a mandatory subject of bargaining

The Appellate Division sustained the determination of New York City Board of Collective Bargaining [BCB] rejecting the Correction Officers' Benevolent Association's [Association] improper practice charge that the Department of Corrections [DOC] had unilaterally modified the process used in awarding staff assignments. 

BCB had determined that the inclusion of employee evaluation criteria based on an assessment of an officer's use of force was not subject to mandatory bargaining as the new evaluation procedures did not concern procedural aspects of officers' performance evaluations and did not require any participation by officers, but only altered the supervisory functions and discretion of the supervisors who performed such evaluations.

The court opined that BCB's determination that the operations order issued by DOC did not impose a substantive change to the process of awarding job assignments was rational, noting the presence of testimony in the record that the information now required to be considered about a correction officer's history of use of force was already a consideration under the previous operations order. 

Further, said the Appellate Division, divisions of DOC required to be contacted during the process of awarding assignments were regularly consulted when the previous order was in effect.

The court's decision notes that BCB's determination that the new training requirements contained in the operations order were not a mandatory subject of bargaining was rational and supported by witness testimony about the role seniority played under both the current and previous operations orders.

The decision also noted that the lack of training did not prevent an officer from applying for or being awarded an assignment and that the language of the new operations order and DOC practice permitted officers to be awarded new assignments and receive required training before beginning assignments.

Citing Matter of United Fedn. of Teachers v City of New York, 154 AD3d 548, the decision also addressed a procedural issue. The Appellate Division noted the BCB hearing, following which BCB made its determination, was discretionary rather than mandatory. Accordingly, the court held that the standard of judicial review was whether BCB's determination was arbitrary and capricious. Concluding that Supreme Court's transfer of the action to the Appellate Division was unwarranted, the Appellate Division elected to dispose of the matter "on the merits" rather than remand the matter to Supreme Court for its further consideration and reviewed BCB's determination "for rationality."

The decision is posted on the Internet at:

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