June 05, 2020

Unilaterally altering a past practice that impacts on a mandatory subject of negotiation

In this action the Appellate Division was asked to review two determinations of the Public Employment Relations Board [PERB] that found that the State of New York [State] committed an improper employer practice.

Civil Service Law §200 et seq., the so-called Taylor Law, requires a New York State public employer to bargain in good faith with its employees regarding all terms and conditions of employment.* Further, the presumption in favor of collective bargaining "may be overcome only in special circumstances where the legislative intent to remove the issue from mandatory bargaining is plain and clear." 

The genesis of the filing of improper employer practice claims in this action by various employee organizations [Unions] representing employees in collective bargaining units was a bulletin issued by the New York State Department of Civil Service stating that "a fee schedule had been created for the processing of applications for promotional and transitional examinations"** under color of a provision set out in the State Budget. Ultimately PERB found that the Unions had a reasonable expectation of a past practice of not charging applicants for such examinations a fee was an economic benefit and, therefore, was a subject of mandatory negotiation.

State commenced this CPLR Article 78 proceeding seeking annulment of PERB's determinations. PERB responded and, in addition, asserted a counterclaim seeking to enforce its remedial order. 

Observing "Whether a past practice exists depends on whether it was unequivocal and was continued uninterrupted for a period of time under the circumstances to create a reasonable expectation among the affected unit employees that the practice would continue, the Appellate Division said that its review of a PERB determination was limited to whether it is supported by substantial evidence, i.e., whether there is a basis in the record allowing for the conclusion that PERB's decision was legally permissible, rational and thus not arbitrary and capricious." 

Rejecting State's assertion that the application fee was not a term and condition of employment, the Appellate Division agreed with PERB's finding that the employees at issue received an economic benefit by not having to pay an application fee for promotional examinations. 

Further, the court said that it disagreed with State's contention that "under Civil Service Law §50(5), the creation of a fee schedule was a prohibited or permissive subject of bargaining," noting that PERB had opined that CSL §50(5) contains "no express prohibition on the bargaining of application fees." Indeed, the Appellate Division noted that the statute "also gives [the State] discretion to charge or abolish fees ... and, therefore, is not "so unequivocal a directive to take certain action that it leaves no room for bargaining." 

Finding no error in PERB's determination that the application fee was a mandatory subject of negotiation, the Appellate Division turned to the issue of ""past practice," explaining that it was undisputed that: 

1. For at least 10 years prior to the challenged bulletin advising of the creation of a fee schedule, fees were not charged to employees who wanted to take a promotional or transitional examination; and 

2. There were no negotiations with any of the employee organizations regarding these fees. 

Although on two occasions proposals were submitted, presumably by the State, to establish a fee schedule for promotional and transitional examinations, they were ultimately rejected and PERB concluded that the employees represented by the Unions had a reasonable expectation that the practice of not charging fees would continue. 

Finding that there was substantial evidence supporting PERB's determination that the State had engaged in an improper practice, the Appellate Division said it would not disturbed PERB's ruling. 

Addressing PERB's counterclaim for a judgment of enforcement of its remedial order, the Appellate Division held that it should be granted given that it "could be reasonably applied, was not unduly burdensome and seemingly furthered the goal of reaching a fair negotiated result." 

* See Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73.

** The Appellate Division also noted that the fees were to be applied only to promotional and transitional examinations, which target current state employees, as opposed to open examinations, which pertain to the public at large. 

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.