Negotiations during decertification action
Advisory Opinion of Counsel 32 PERB 5002*
Sometimes the time becomes ripe for collective bargaining while a decertification petition is pending final determination. May the employer commence negotiations with a representative of a unit of public employees while the representation challenge concerning that unit is still pending?
PERB’s Counsel noted that in Matter of Rockland County, 10 PERB 3098, PERB held that “a public employer is not compelled to, and may not, negotiate with the incumbent employee organization while a bona fide question concerning representation is pending.”
However, Counsel noted that in earlier opinions it was indicate that such negotiations may be conducted in the face of a pending representation petition with the consent of all parties affected by the petition, citing 23 PERB 5001; 5002 and 5003.
Finally, the opinion notes that while the then recognized or certified bargaining agent for the unit may be barred from negotiating a successor agreement because of the pending representation petition, it has the “continuing right and duty to represent the at-issue unit” for the purposes of preserving the status quo and to respond to changes “through negotiations.”
* An Advisory Opinion of Counsel is not binding on PERB
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
November 17, 2010
Staying a grievance arbitration
Staying a grievance arbitration
Newfield CSD v Newfield Teachers Asso., 258 AD2d 845, motion to appeal denied, 93 NY2d 809
Newfield Central School District subcontracted with BOCES to staff various positions. In July 1997, the Newfield Central School Teachers Association filed a grievance alleging that the district had violated its collective bargaining agreement with the teachers association.
The superintendent denied the grievance, and the school board affirmed that ruling on administrative appeal. The teachers next filed a demand for arbitration. The district, however, obtained a stay from a state Supreme Court justice barring arbitration because the collective bargaining agreement was silent as to the district’s right to subcontract. The Supreme Court reasoned that absent clear contractual basis for arbitration on such an issue, the Teachers Association’s grievance was not arbitrable. The teachers appealed to the Appellate Division.
In a 4 to 1 ruling, the Appellate Division, Third Department, agreed with the lower court.
The court applied a two-part test set out in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509.
The first test was whether subject of the arbitration claim was prohibited under the Taylor Law (Civil Service Law Section 200 et seq.) For instance, issues involving strong public policy typically are not subject to arbitration. The court said the BOCES subcontracting issue was not prohibited under the Taylor Law.
Having passed the first test, the next question was whether the parties had agreed by the terms of their collective bargaining agreement to submit this type of dispute to arbitration. No, said the court.
Courts are likely to deny arbitration of a grievance unless the language of the arbitration clause in a collective bargaining agreement specifically provides for such arbitration. To determine whether an issue sought to be arbitrated falls within the ambit of an arbitration clause, a court is “to be guided by the principle that the agreement to arbitrate must be express, direct and unequivocal as to the issues or disputes to be submitted to arbitration; anything less will lead to denial of arbitration.”
In the Liverpool case, the Court of Appeals held: The Appellate Division said it may be appropriate for a school district and a teachers association to negotiate the degree to which a school district utilizes the resources available through BOCES.
The court characterized the subject as a permissible, rather than a mandatory, subject of negotiation.
Accordingly, said the court, it makes little sense to require the district, under the guise of a broad arbitration clause, to arbitrate a provision that it is not even required to negotiate. It ruled that in the absence of a valid and specific agreement between the parties clearly showing an intent to arbitrate claims arising out of subcontracting with BOCES, the district’s application to stay arbitration was properly granted.
The lesson here is that unless the contract arbitration provision specifically states that it is applicable to certain other, or all, controversies concerning issues not covered by the negotiated agreement arising between the parties during the life of the agreement, the courts usually will limit the scope of arbitration to those claims alleging a violation of a specified contract provision.
In a dissenting opinion, Presiding Judge Ann Mikoll said that “for a public employment dispute to be arbitrable, it is not necessary that the parties have specifically addressed its subject matter and specifically agreed to arbitrate it. Rather, the focus must be solely upon the language of the parties’ arbitration clause, and whether or not it extends to the particular dispute.” Judge Mikoll said that she believed that “the instant dispute falls within the scope of the parties’ broad arbitration clause, which extends to all ‘claimed violations’ thereof,” and concluded that the matter should be resolved by arbitration.
NYPPL
Newfield CSD v Newfield Teachers Asso., 258 AD2d 845, motion to appeal denied, 93 NY2d 809
Newfield Central School District subcontracted with BOCES to staff various positions. In July 1997, the Newfield Central School Teachers Association filed a grievance alleging that the district had violated its collective bargaining agreement with the teachers association.
The superintendent denied the grievance, and the school board affirmed that ruling on administrative appeal. The teachers next filed a demand for arbitration. The district, however, obtained a stay from a state Supreme Court justice barring arbitration because the collective bargaining agreement was silent as to the district’s right to subcontract. The Supreme Court reasoned that absent clear contractual basis for arbitration on such an issue, the Teachers Association’s grievance was not arbitrable. The teachers appealed to the Appellate Division.
In a 4 to 1 ruling, the Appellate Division, Third Department, agreed with the lower court.
The court applied a two-part test set out in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509.
The first test was whether subject of the arbitration claim was prohibited under the Taylor Law (Civil Service Law Section 200 et seq.) For instance, issues involving strong public policy typically are not subject to arbitration. The court said the BOCES subcontracting issue was not prohibited under the Taylor Law.
Having passed the first test, the next question was whether the parties had agreed by the terms of their collective bargaining agreement to submit this type of dispute to arbitration. No, said the court.
Courts are likely to deny arbitration of a grievance unless the language of the arbitration clause in a collective bargaining agreement specifically provides for such arbitration. To determine whether an issue sought to be arbitrated falls within the ambit of an arbitration clause, a court is “to be guided by the principle that the agreement to arbitrate must be express, direct and unequivocal as to the issues or disputes to be submitted to arbitration; anything less will lead to denial of arbitration.”
In the Liverpool case, the Court of Appeals held: The Appellate Division said it may be appropriate for a school district and a teachers association to negotiate the degree to which a school district utilizes the resources available through BOCES.
The court characterized the subject as a permissible, rather than a mandatory, subject of negotiation.
Accordingly, said the court, it makes little sense to require the district, under the guise of a broad arbitration clause, to arbitrate a provision that it is not even required to negotiate. It ruled that in the absence of a valid and specific agreement between the parties clearly showing an intent to arbitrate claims arising out of subcontracting with BOCES, the district’s application to stay arbitration was properly granted.
The lesson here is that unless the contract arbitration provision specifically states that it is applicable to certain other, or all, controversies concerning issues not covered by the negotiated agreement arising between the parties during the life of the agreement, the courts usually will limit the scope of arbitration to those claims alleging a violation of a specified contract provision.
In a dissenting opinion, Presiding Judge Ann Mikoll said that “for a public employment dispute to be arbitrable, it is not necessary that the parties have specifically addressed its subject matter and specifically agreed to arbitrate it. Rather, the focus must be solely upon the language of the parties’ arbitration clause, and whether or not it extends to the particular dispute.” Judge Mikoll said that she believed that “the instant dispute falls within the scope of the parties’ broad arbitration clause, which extends to all ‘claimed violations’ thereof,” and concluded that the matter should be resolved by arbitration.
NYPPL
Employee terminated following loss of a license required to perform the duties of the position
Employee terminated following loss of a license required to perform the duties of the position
Lytle v U.S. Postal Service, 257 AD2d 779
One of the conditions of Christopher M. Lytle’s employment by the United States Postal Service was that he posses a valid driver’s license so that he could perform his postal duties.
Lytle was arrested for driving while intoxicated and his license was suspended. As he could not lawfully drive a motor vehicle, he was terminated from his position. Finding that he was “terminated due to misconduct,” the Unemployment Insurance Appeals Board denied his application for unemployment insurance benefits.
The Appellate Division sustained the board’s ruling, holding that since Lytle “engaged in a voluntary act which violated a reasonable condition of his employment, we decline to disturb the Board’s decision that [Lytle’s] behavior constituted disqualifying misconduct.”
NYPPL
Lytle v U.S. Postal Service, 257 AD2d 779
One of the conditions of Christopher M. Lytle’s employment by the United States Postal Service was that he posses a valid driver’s license so that he could perform his postal duties.
Lytle was arrested for driving while intoxicated and his license was suspended. As he could not lawfully drive a motor vehicle, he was terminated from his position. Finding that he was “terminated due to misconduct,” the Unemployment Insurance Appeals Board denied his application for unemployment insurance benefits.
The Appellate Division sustained the board’s ruling, holding that since Lytle “engaged in a voluntary act which violated a reasonable condition of his employment, we decline to disturb the Board’s decision that [Lytle’s] behavior constituted disqualifying misconduct.”
NYPPL
November 16, 2010
Any expansion of benefits available pursuant to §§207-a and 207-c must be expressly provided for in a collective bargaining agreement
Any expansion of benefits available pursuant to §§207-a and 207-c must be expressly provided for in a collective bargaining agreement
Matter of Town of Tuxedo v Town of Tuxedo Police Benevolent Assn., 2010 NY Slip Op 08122, decided on November 9, 2010, Appellate Division, Second Department
On December 4, 2004, Town of Tuxedo Police Officer John Tamburello was injured in the line of duty. He never returned to work and was awarded a disability retirement on or about December 23, 2008.
In March 2009 the Tuxedo Park PBA filed a grievance alleging that Tamburello had not been paid for all of his unused leave as mandated by the collective bargaining agreement [CBA]. According to the PBA, leave time continued to accrue during the four-year period that Tamburello was receiving benefits pursuant to General Municipal Law §207-c.
When it demanded that the question be submitted to arbitration, Tuxedo Park filed a petition pursuant to Article 75 seeking a permanent stay of arbitration.
Ultimately the Appellate Division ruled that “benefits provided to a police officer pursuant to General Municipal Law §207-c, like the benefits provided to a firefighter pursuant to General Municipal Law §207-a, are exclusive, and a collective bargaining agreement will not be construed to implicitly expand such benefits.”*
“Unless,” said the court, “a collective bargaining agreement expressly provides for compensation rights to disabled officers in addition to those provided by General Municipal Law § 207-c, there is no entitlement to such additional compensation,” citing Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686.
As the Appellate Division found that the controlling CBA “did not contain any language expressly providing that leave time would accrue during the period that a disabled officer receives General Municipal Law §207-c benefits, or that a disabled officer would be paid for such leave time upon retirement,”. Supreme Court should have granted the petition in Proceeding No. 2 to permanently stay arbitration.
Comment: The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.
The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.
Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c.
Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement.
Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.
Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary, i.e., a Section 207-a level of benefits.
Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.
Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:
1. Had been included in the contract by mistake and
2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.
The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.
Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.
As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.
Accordingly, Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement were entitle to Section 207-a type benefits.
* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08122.htm
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For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html
===================================
NYPPL
Matter of Town of Tuxedo v Town of Tuxedo Police Benevolent Assn., 2010 NY Slip Op 08122, decided on November 9, 2010, Appellate Division, Second Department
On December 4, 2004, Town of Tuxedo Police Officer John Tamburello was injured in the line of duty. He never returned to work and was awarded a disability retirement on or about December 23, 2008.
In March 2009 the Tuxedo Park PBA filed a grievance alleging that Tamburello had not been paid for all of his unused leave as mandated by the collective bargaining agreement [CBA]. According to the PBA, leave time continued to accrue during the four-year period that Tamburello was receiving benefits pursuant to General Municipal Law §207-c.
When it demanded that the question be submitted to arbitration, Tuxedo Park filed a petition pursuant to Article 75 seeking a permanent stay of arbitration.
Ultimately the Appellate Division ruled that “benefits provided to a police officer pursuant to General Municipal Law §207-c, like the benefits provided to a firefighter pursuant to General Municipal Law §207-a, are exclusive, and a collective bargaining agreement will not be construed to implicitly expand such benefits.”*
“Unless,” said the court, “a collective bargaining agreement expressly provides for compensation rights to disabled officers in addition to those provided by General Municipal Law § 207-c, there is no entitlement to such additional compensation,” citing Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686.
As the Appellate Division found that the controlling CBA “did not contain any language expressly providing that leave time would accrue during the period that a disabled officer receives General Municipal Law §207-c benefits, or that a disabled officer would be paid for such leave time upon retirement,”. Supreme Court should have granted the petition in Proceeding No. 2 to permanently stay arbitration.
Comment: The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.
The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.
Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c.
Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement.
Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.
Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary, i.e., a Section 207-a level of benefits.
Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.
Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:
1. Had been included in the contract by mistake and
2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.
The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.
Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.
As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.
Accordingly, Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement were entitle to Section 207-a type benefits.
* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08122.htm
===================================
For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html
===================================
NYPPL
Disciplinary suspension without pay tolled while individual incarcerated
Disciplinary suspension without pay tolled while individual incarcerated
Manning v Warsaw CSD, CEd 14071
The Warsaw Central School District served disciplinary charges against a tenured teacher, William Manning, Jr., related to his alleged operating a motor vehicle under the influence of alcohol.
Following a disciplinary hearing and an appeal, on November 22, 1994 former Commission of Education Sobol issued a decision and imposed a penalty of suspension without pay for two years. The decision was sustained by a State Supreme Court justice [Manning v Sobol, August 7, 1995, not officially reported].
Manning, however, was incarcerated in the Wyoming County jail on July 19, 1994. Because he was “unavailable” to work, the district changed his pay status from suspension with pay pending resolution of the Section 3020-a action to suspension without pay effective July 19, 1994.
Released from prison and claiming that his two-year suspension without pay commenced on November 22, 1994, Manning advised the district that he intended to return to work on November 22, 1996. The District said that the two-year suspension period commenced on March 21, 1995, when he was released from prison and therefore he could not return to work earlier than March 21, 1997. Manning appealed.
Commissioner of Education Richard P. Mills said that the two-year suspension imposed by former Commissioner Sobol commenced when Manning was released from incarceration since allowing the suspension to run concurrently with his incarceration “nullifies a portion of the suspension, since [Manning] could not work during that period in any event.”
The Commissioner rejected Manning’s claim that he was entitled to back salary from November 22, 1996, holding that to do so would abrogate the degree of discipline deemed appropriate by former Commissioner Sobol.
NYPPL
Manning v Warsaw CSD, CEd 14071
The Warsaw Central School District served disciplinary charges against a tenured teacher, William Manning, Jr., related to his alleged operating a motor vehicle under the influence of alcohol.
Following a disciplinary hearing and an appeal, on November 22, 1994 former Commission of Education Sobol issued a decision and imposed a penalty of suspension without pay for two years. The decision was sustained by a State Supreme Court justice [Manning v Sobol, August 7, 1995, not officially reported].
Manning, however, was incarcerated in the Wyoming County jail on July 19, 1994. Because he was “unavailable” to work, the district changed his pay status from suspension with pay pending resolution of the Section 3020-a action to suspension without pay effective July 19, 1994.
Released from prison and claiming that his two-year suspension without pay commenced on November 22, 1994, Manning advised the district that he intended to return to work on November 22, 1996. The District said that the two-year suspension period commenced on March 21, 1995, when he was released from prison and therefore he could not return to work earlier than March 21, 1997. Manning appealed.
Commissioner of Education Richard P. Mills said that the two-year suspension imposed by former Commissioner Sobol commenced when Manning was released from incarceration since allowing the suspension to run concurrently with his incarceration “nullifies a portion of the suspension, since [Manning] could not work during that period in any event.”
The Commissioner rejected Manning’s claim that he was entitled to back salary from November 22, 1996, holding that to do so would abrogate the degree of discipline deemed appropriate by former Commissioner Sobol.
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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; Staff Judge Advocate General, New York Guard [See also https://www.linkedin.com/in/harvey-randall-9130a5178/].
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