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March 11, 2021

Distinguishing between prohibited, mandatory, and non-mandatory subjects of collective bargaining within the meaning of the Taylor Law

The Union of Automotive Technicians, Local 563, [Union] filed an improper practice charge with the Port Authority Relations Panel [Panel] alleging that  the Authority had revised its Security Identification Display Area [SIDA] clearance application form without negotiating changes in the form with the Union.

The earlier form required disclosure of "disqualifying offenses enumerated in 49 CFR 1542.209(d)". The new application form, however, required applicants to disclose "all offenses, other than certain traffic offenses, of which they had ever been convicted, or found not guilty by reason of insanity."

The Panel dismissed the Union's charge, holding that the requirements to disclose additional convictions were not terms and conditions of employment and thus not mandatory subject of collective bargaining within the meaning of Article 14 of the Civil Service Law, the so-called Taylor Law. The Union then filed a CPLR Article 78 petition in Supreme Court appealing the Panel's ruling. Supreme Court transferred the matter to the Appellate Division.*

Sustaining the Panel's determination, the Appellate Division indicated that it viewed the revised application form as:

1. An exercise of Port Authority's managerial prerogative to determine job qualifications, and amounted to "policy decisions relating to the primary mission of the public employer;" and

2. Section III(D) of Port Authority's Labor Relations Instruction excludes "the mission and management responsibilities of the Authority, including its ... staffing [and] operating ...  policies" from mandatory negotiation.

Other court decisions addressing areas excluded from mandatory negotiations within the meaning of the Taylor Law include City of Plattsburgh v Local 788, 108 AD2d 1045 and Szumigala v Hicksville Union Free School District, 148 AD2d 621.

Plattsburg involved the diminishing or impairing employee seniority for the purposes of layoff upon the abolishment of positions. The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff; the "date of hire" was to be used to determine an employee's seniority. The City laid off Employee A rather than another worker, Employee B. While A, had been employed by the City for a longer period than B, B had received his permanent appointment before A was permanently appointed. Plattsburgh won an order prohibiting arbitration of the issue. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" granted employees that the City was powerless to bargain away.

In Szumigala, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

In Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 NY3d 660, the court addressed a prohibited negotiating demand. Here the high court ruled that "[p]ublic policy requires that police departments retain the authority given them by Civil Service Law §61(1) to select one of three candidates for such promotions, thus barring an appointing authority from agreeing, in the course of collective bargaining, to limit its discretion in selecting a candidate for promotion by requiring the appointing authority to follow the so-called "rule of the list."

In contrast, Matter of Professional, Clerical, Tech. Empls. Assn. (Buffalo Bd. of Educ.), 90 NY2d 364, is an example of a non-mandatory negotiating demand with respect to negotiating the rule of the list. Here the Court of Appeals held that a public employer could, without violating public policy, agree to forgo its statutory authority to choose from among any of three candidates for promotion to clerical and secretarial positions. Here the use of the "rule of the list" was held not to offend pubic policy insofar as appointments of candidates to clerical or secretarial positions were concerned.

* Addressing a procedural issue, the Appellate Division said the Article 78 proceeding should not have been transferred to it as the petition did not raise an issue of substantial evidence but, "as a matter of judicial economy," it elected to retain jurisdiction "to dispose of all issues raised" in the Union's Article 78 petition.

Click HERE to access the text of the Port Authority decision.


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