Determining terms and conditions of employment for the purposes of collective bargaining within the meaning of the Taylor Law

§50.5 of the Civil Service Law, Application Fees, in pertinent part, provides "(a) Every applicant for examination for a position in the competitive or non-competitive class, or in the labor class when examination for appointment is required, shall pay a fee to the civil service department or appropriate municipal commission at a time determined by it."

The State commenced this CPLR Article 78 proceeding seeking to annul Public Employment Relations Board [PERB] determinations that [1] not charging examination application fees created an enforceable past practice; and [2] PERB's subsequently affirming a second Administrative Law Judge's decision ordering the State to stop requiring employees represented by the respondent employee organization for the purposes of collective bargaining to pay fees for promotional and transitional examinations and to reimburse those employees any money that they paid as a result of the State's unilateral imposition of such examination fees.

PERB had concluded that waiving fees for promotional and transitional examinations  was a term and condition of employment because there was an "economic benefit" to the employees and rejected the State's contention that the issue of its imposition of the fees was a prohibited or permissive subject of collective bargaining. PERB, in contrast, determined that the subject was mandatorily negotiable and that the State had earlier established an enforceable past practice of not charging such fees.

Supreme Court and the Appellate Division, among other things, (1) confirmed PERB's determinations and (2) dismissed the State's petition (see 183 AD3d 1061, at 1064), explaining "the application fee" was a term and condition of employment because "the employees at issue received an economic benefit by not having to pay" that fee. Further, the Appellate Division agreed with PERB that the imposition of the fees was a mandatory subject for the purposes of collective bargaining and that an enforceable past practice to waive such fees existed.

The Court of Appeals reverse these lower court's rulings, holding charging application fees for promotional and transitional civil service examinations [1] was not a term and condition of employment as defined in Civil Service Law §201.4 and [2] the State had no obligation to negotiate those fees pursuant to Article 14 of the Civil Service Law, typically referred to as "The Taylor Law, Civil Service Law, CSL §200 et seq."

Noting:

    [1] The Taylor Law "requires all public employers and employee organizations to negotiate in good faith to determine represented employees' terms and conditions of employment";

    [2] New York's "strong and sweeping public policy in favor of collective bargaining"; and

    [3] "The presumption is that all terms and conditions of employment are subject to mandatory bargaining";

the Court of Appeals determined that a public employer's bargaining obligations extend  only to terms and conditions of employment, a phrase defined by statute as "salaries, wages, hours and other terms and conditions of employment."

Here, said the court, PERB, relying on Matter of Local 237, International Brotherhood of Teamsters [Town of Islip], 44 PERB 3014, has interpreted the statute "to mean — and maintains here — that any 'economic benefit' afforded to employees is a term and condition of employment."

The Court of Appeals said PERB misapprehends its holding" In Matter of Town of Islip. In Islip "we merely acknowledged that PERB had determined that 'employee use of an employer-owned vehicle for transportation to and from work is an economic benefit and a mandatorily negotiable term and condition of employment' (see 23 NY3d at 491)." In the words of the Court of Appeals "PERB erroneously reads this language as adopting a per se rule that any economic benefit is a term and condition of employment."

The court held that PERB's determination in this case "conflicts with Civil Service Law §201(4) and ... precedent". Although certain forms of compensation, including employees' health benefits, qualify under the statute as a term and condition of employment, "to be a term and condition of employment under section 201(4), an economic benefit must have some nexus to the employment".

As an example, the Court of Appeals cited the employees' use of vehicles to commute to their jobs as a term and condition of employment because the employer provided an economic benefit that was plainly related to the employment. With respect to the instant litigation, the Court of Appeals held that "PERB's determination here improperly eliminated the nexus requirement".

The Court of Appeals' decision points out that Civil Service Law §50(5) vests the Department of Civil Service with the power to impose fees to recoup the administrative costs of conducting civil service examinations, not with authority to alter the employer-employee relationship through the imposition of the fees. In the words of the Court of Appeals, "The fees for promotional and transitional exams at issue here are akin to fees imposed by an agency with plenary authority to set fees for licenses that an employer may demand as a job requirement, such as a driver's license or professional license".

Concluding the imposition of the subject fees was not encompassed within the definition of terms and conditions of employment within the meaning of Civil Service Law §201(4), nor did earlier waiver of the fees for State employees render them terms or conditions of employment, the Court of Appeals ruled that "the State had no obligation to negotiate with respect to their implementation." 

Holding that PERB's conclusion to the contrary was error, the Court of Appeals determined that the order of the Appellate Division should be reversed, with costs, and that the State's petition to annul PERB's determinations in this matter should be granted.

Click HERE to access the text of the Court of Appeals decision posted on the Internet.

 

Recent personnel disciplinary decisions issued by the New York City Office of Administrative Trials and Hearings

Click on the text highlighted in color to access the full text of the decision.

Violating the employer's attendance and leave policy

Administrative Law Judge Christine Stecura recommended a 79-day suspension for a sanitation worker charged with 51 complaints of violating his employer’s time and leave policy during a 14-month period, including failing to document emergency leave, providing inadequate documentation, and failing to remain accessible while on sick leave. 

Judge Stecura sustained the charges and recommended suspension in lieu of termination due to substantial mitigating circumstances as most of the sanitation worker’s absences involved caring for his child, who had a serious medical condition, and the worker subsequently obtained approved leave for this purpose.

Dep’t of Sanitation v. D.L., OATH Index No. 2434/22

Video evidence of employee misconduct

Supervising Administrative Law Joan R. Salzman recommended a 30-day suspension for a TLC Inspector who cursed at his supervisors, moved aggressively toward them, and forcibly pushed away a colleague who was trying to stop him. 

The Inspector denied wrongdoing, despite video evidence showing him pushing his colleague. 

Although Inspector had no prior disciplinary history, Judge Salzman found that the gravity of the employee's violent conduct, combined with employee's refusal to take responsibility for his actions, warranted a 30-day suspension.  

Taxi & Limousine Comm’n v. Urena-Santos, OATH Index No. 527/23 (Dec. 23, 2022), adopted, Comm’r Dec. 

Board member alleged to have made false statements on his application for membership

Administrative Law Judge Jonathan Fogel recommended dismissing charges against a community board member because the community board did not prove that the member had made two false statements on his application to become a board member. 

ALJ Fogel declined to dismiss the charges on procedural grounds, however, finding that the charges were properly brought under the New York City Charter and although the application predated the member's service as a board member, it is part of the community board member's personnel file and "his membership on the board".  

Brooklyn Community Board 13 v. Greenberg, OATH Index No. 1574/22

Challenging the holding of a scheduled union election

Supreme Court granted plaintiffs' petition to enjoin AFSCME's Local 983 from holding the duly scheduled election and directed Local 983 to provide a plan, to be reviewed by Plaintiffs for a future election within 30 days. The Appellate Division unanimously reversed the Supreme Court's ruling and dismissed Plaintiff's petition.

The Appellate Division opined that Supreme Court had "improvidently exercised its discretion to enjoin [Local 983] from proceeding with their scheduled election," explaining that as Local 983 is an unincorporated association, the Plaintiff's petition fails because it does not plead "that each individual union member authorized or ratified the [allegedly] unlawful actions", citing Matter of Agramonte v Local 461, Dist. Council 37, Am. Fedn. of State County and Mun. Empls., 209 AD3d 478, and other authorities including Martin v Curran, 303 NY 276.

Further, said the Appellate Division, "even had the Martin requirement not applied, [Plaintiffs] failed to exhaust their contractual remedies before bringing this action," noting  AFSCME's constitution prohibits members from instituting a civil action without first availing themselves of the remedies in its constitution. The remedies available to Plaintiffs' include a procedure to challenge the conduct of an election so that a protesting party has an opportunity to be heard.

The decision also points out that provisions of AFSCME's constitution allow petitioners to "appeal an adverse determination to a judicial panel, then to a full judicial panel, and then again to an international convention." In addition, the Appellate Division commented that the Union's constitution "also gives the union the authority to set aside an election outcome and hold a new election upon a finding of a violation."

In the words of the Appellate Division "Petitioners have not advanced a sufficient reason to excuse them from exhausting that remedial process."

Click HERE to access the Appellate Division's decision posted on the Internet.

Selected key points made in recent decisions of the Commissioner of Education

Improper service of an appeal to the Commissioner of Education

The Commissioner dismissed this Education §310 appeal for improper service, noting that §275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  "If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a], Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). 

As here relevant, the petition was sent by U.S. mail to respondent’s district clerk.  The Commissioner observed that service by U.S. mail "does not constitute valid service of a petition pursuant to Education Law §310" and, therefore, "the appeal must be dismissed."*

The Commissioner then opined that "Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief." The Commissioner also noted that "As [the school district correctly noted], there is no requirement that a board of education conduct a nationwide search for a superintendent."

Petitioner, said the Commissioner, has otherwise failed to demonstrate that the school district acted in an arbitrary or capricious manner in appointing its new superintendent. (see Appeal of S.E., 51 Ed Dept Rep, Decision No. 16,352; Appeal of J.P., et al., 42 id. 226, Decision No. 14,832).

* The Petitioner’s affidavit of service contained the following notation:  “Affidavit of service by mail [s]ince the school district is on Spring Break this week.”  This, said the Commissioner, "does not establish that district offices were closed or that [Petitioner] was otherwise prevented from effectuating personal service."

Click HERE top access the Commissioner's decision.

Determining seniority in the course of abolishing a position

In this appeal the Petitioner appealed the action of the Board of Education in abolishing her position of library media specialist, joining several named individuals as "necessary parties." The Commissioner sustained Petitioner's appeal "to the extent indicated."

Petitioner claimed tenure in the district as a library media specialist.  On June 18, 2020, the school board adopted a resolution abolishing, among others, a library media specialist position, effective June 30, 2020.  The school district then identified Petitioner as the least senior person in the tenure area of library media specialist. 

Addressing the merits of the Petitioner's appeal, the Commissioner observed that at the time of a probationary appointment or appointment on tenure, a board of education must identify “the tenure area or areas in which [a] professional educator will devote a substantial portion of [her or] his time”, i.e. assigned to any tenure area to which she devotes a “substantial portion” of her time, defined as “40 percent or more of [her] total time spent … in the performance of [her or] his duties …” (see 8 NYCRR 30.1 [g]).

The Commissioner opined that "Given the limited and ambiguous information in the record, it is impossible to determine which employee’s services should have been discontinued." The Commissioner then admonish [the appointing authority] to comply with Part 30 of the Rules of the Board of Regents in appointing individuals to tenure-eligible positions. "It is unacceptable that [appointing authority] was unable to produce a single document establishing the tenure area(s) to which [Petitioner] and the named necessary parties were appointed] noting that the failure appointing authority "to identify this information, which is required by 8 NYCRR 30-1.3, now necessitates a recreation of its institutional thought process from several years ago—all while the employment of one or more people hangs in the balance" noted the Commissioner.

Click HERE to access the text of the Commissioner's decision.

Challenging actions taken by members of the staff of the State Education Department

Petitioner in this appeal challenged a determination of the New York State Education Department’s Office of Special Education (“SED”) that she engaged in misconduct and acted incompetently during a special education due process hearing.  The Commissioner dismissed the appeal for "lack of jurisdiction."

The Commissioner explained that "It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department", noting that  "Such actions can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules."

Click HERE to access the decision of the Commissioner.

Extending a probationary period

A probationary teacher [Probationer] taught Social Studies. Subsequently Probationer agreed to serve an additional one-year probationary period, ending February 1, 2022.

By letter dated October 8, 2021, the assistant principal requested a meeting “regarding improper usage of an instructional period.”  The letter informed petitioner that she could bring a union representative because the meeting could lead to disciplinary action. Ultimately the superintendent informed Probationer that her probationary appointment, would end at the close of business on January 31, 2022.

Pursuant to its authority under Education Law §2573(1)(a), the New York City Department of Education [DOE] "may discontinue the services of a probationary teacher 'at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith.'”

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief  and here the Commissioner determined that Probationer "has not proven that [DOE] discontinued her probation in bad faith."

Some technical issues to consider in filing an Education Law §310 appeal to the Commissioner of Education

1. Alleged violations of the Open Meetings Law may not be adjudicated in an appeal pursuant to Education Law §310 as the Commissioner of Education lacks jurisdiction to address the Open Meetings Law allegations raised in such an appeal.

2. Any deficiency in joining a necessary party may be cured during the pendency of the appeal by the joinder of the necessary party.

3. The services of a probationary teacher may be discontinued at any time during the probationary period unless the teacher shows that a board terminated service for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith, and the record of the instant appeal "supports a finding that petitioner’s probationary appointment was discontinued in bad faith."

Click HERE to access the Commissioner's decision.