The New York State Public Employment Relations Board [PERB] found that the Police Benevolent Association of New York State, Inc. [PBA], as the exclusive bargaining representative for certain employees in a negotiating unit, and the State of New York [State] had entered into a collective bargaining agreement [CBA] covering unit personnel that included contract articles addressing winter work schedules, summer work schedules and, as pertinent here, provisions concerning seniority and vacancies, modifying unit members' shifts, and contract grievance procedures.
State and the PBA met to discuss the winter schedule for the 2012-2013 season during which State proposed a new winter work schedule while the PBA proposed an alternate schedule. State ultimately implemented the winter work schedule it had originally proposed and the PBA filed an improper practice charge with PERB alleging that State had violated Civil Service Law §209-a(1)(a) and §209-a(1)(d) by unilaterally implementing a new winter work schedule.
PBA contended that the winter work schedule imposed by State constituted new terms and conditions of employment and demonstrated a failure to negotiate in good faith over a mandatory subject of collective bargaining within the meaning of Article 14 of the Civil Service Law.
State, in rebuttal, argued that [1] PBA had waived its right to bargain by agreeing to language in the CBA that expressly allowed State to unilaterally set unit members' work schedules, [2] it had had satisfied its duty to negotiate the challenged work schedule and [3] PERB lacked jurisdiction to hear PBA's improper practice claim in view of contract grievance procedures set out in the CBA.
State, in rebuttal, argued that [1] PBA had waived its right to bargain by agreeing to language in the CBA that expressly allowed State to unilaterally set unit members' work schedules, [2] it had had satisfied its duty to negotiate the challenged work schedule and [3] PERB lacked jurisdiction to hear PBA's improper practice claim in view of contract grievance procedures set out in the CBA.
A PERB hearing officer [Hearing Officer] found that State had violated Civil Service Law §209-a(1)(d) as there was a duty to negotiate the winter work schedule and ordered the restoration of the prior schedule.* The hearing officer also determined that:
[1] The parties had engaged in the past practice of reaching an agreement on the work schedule prior to its implementation;
[2] The record did not support State's claim that PBA had waived its right to negotiate the settling of work schedules; and
[3] State had not satisfied its duty to negotiate the winter schedule.
PERB's affirmed the Hearing Officer's findings and decision, whereupon State initiated a CPLR Article 78 proceeding in Supreme Court challenging PERB's decision, which Supreme Court transferred to the Appellate Division.
[1] The parties had engaged in the past practice of reaching an agreement on the work schedule prior to its implementation;
[2] The record did not support State's claim that PBA had waived its right to negotiate the settling of work schedules; and
[3] State had not satisfied its duty to negotiate the winter schedule.
PERB's affirmed the Hearing Officer's findings and decision, whereupon State initiated a CPLR Article 78 proceeding in Supreme Court challenging PERB's decision, which Supreme Court transferred to the Appellate Division.
Addressing State's claim that PERB lacked jurisdiction over this dispute as its subject — State's resolution of the work schedule issues — under color that the CBA provided PBA with a right enforceable through the CBA's grievance procedure, the Appellate Division, citing Matter of City of New Rochelle v New York State Pub. Empl. Relations Bd., 101 AD3d 1438, conceded that PERB and courts have interpreted the Civil Service Law to deprive PERB of jurisdiction when the dispute between an employer and an employee organization was "essentially contractual" in nature and when the agreement "provides the charging party with a reasonably arguable source of right with respect to the subject matter of the charge."
In contrast, however, the Appellate Division pointed out that a charge that an employer has violated its statutory duty to bargain in good faith over a matter outside the terms of a CBA is a matter within PERB's jurisdiction," citing Matter of County of Erie v State of New York, 14 AD3d 14.
Considering the provisions in the CBA relied on by State to preclude PERB from hearing the dispute, the Appellate Division concluded that State's reliance on its "assertion that [provisions in the collective bargaining agreement] provide the PBA with a reasonably arguable source of right or a contractual remedy to challenge State's unilateral decision to set the schedule" was misplaced. In the words of the Appellate Division, "As the dispute centered on matters outside of the CBA, we find that "PERB's jurisdictional limitation was not triggered."
The court also rejected State's contention that certain determinations made by PERB were not supported by substantial evidence. Reading the articles in the CBA relied on by State "as a whole," the Appellate Division opined that they do not indicate that the parties "reached an accord" on the subject of the setting of the schedules for each season allowing State to unilaterally implement the schedule and substantial evidence supported PERB's determination that GOER did not satisfy its duty to negotiate the work schedules at issue.
The court also sustained PERB's determination that the PBA did not waive its rights to negotiate the setting of the schedule, as the CBA did not include a waiver that is "clear, unmistakable and without ambiguity," revealing an intent by PBA to relinquish its right to negotiate the work schedules.
With respect to State's challenging PERB's determination that there was an established past practice whereby the parties would reach an agreement on the work schedule prior to its implementation, the Appellate Division observed that "[A] binding past practice is established where the practice was unequivocal and was 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."
Based on the testimony presented at the hearing, the Hearing Officer concluded that the parties had engaged in the past practice of negotiating work schedules and reaching an agreement prior to the implementation of such schedules. PERB similarly credited the testimony of the witnesses for both State and the PBA, finding that their testimony "did not materially differ as to what had in fact happened in their meetings." The Appellate Division, based on its review of the record, said it was satisfied that substantial evidence supported PERB's determination and declined to disturb it.
Finally, the Appellate Division considered PERB's counterclaim seeking enforcement of its remedial order.** Noting that PERB's issuing remedial orders "are peculiarly matters within its administrative competence" and "should be upheld if [they] can be reasonably applied," the Appellate Division concluded that PERB's determination sought to stop an improper employer practice, a function that was within its purview.
Determining that the remedies ordered by PERB can be reasonably applied by State and are not unduly burdensome, the Appellate Division held that "PERB is entitled to a judgment of enforcement of its remedial order."
The court then confirmed PERB's determination with respect to PBA's improper practice charge, without costs and dismissed State's petition seeking to vacate PERB's decision.
Determining that the remedies ordered by PERB can be reasonably applied by State and are not unduly burdensome, the Appellate Division held that "PERB is entitled to a judgment of enforcement of its remedial order."
The court then confirmed PERB's determination with respect to PBA's improper practice charge, without costs and dismissed State's petition seeking to vacate PERB's decision.
* The ALJ dismissed the charge alleging a violation of Civil Service Law § 209-a (1) (a), finding no record evidence to support this charge.
** The remedial order required State to "[c]ease and desist from unilaterally implementing the work schedules and required that affected employees be made "whole for wages and/or lost benefits, if any."
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_02963.htm
http://www.nycourts.gov/reporter/3dseries/2020/2020_02963.htm