Contracting out a negotiating unit's work

Contracting out a negotiating unit's work
Vestal Employees Asso., NEA/NY v Vestal CSD, 94 N.Y.2d 409

Management may attempt to “contract out” work claiming that to do so is more efficient or less expensive or because the tasks are “too technical” for its employees to perform. Unions typically object to contracting out, contending that its unit members can perform the tasks as well or better than “outsiders” and that it is more economical to use unit members than to go outside the organization for this purpose.

Suppose a school district asks a BOCES to enter into a contract to perform services that the school district’s employees are current performing. Is such “contracting out” of services a mandatory subject of collective bargaining within the meaning of the Taylor Law? This was the critical question in the Vestal Employees Association case. The ruling sets out the tests that the Court of Appeals said should be used in deciding such issues.

Typically the contracting out of exclusive unit work is a mandatory subject of collective bargaining. Further, if the work to be contracted out is not “exclusive unit work,” the impact of such action of the collective bargaining unit may constitute a mandatory subject to negotiations under the Taylor Law.

In deciding the Vestal case, the Court of Appeals, following the rationale set out in its ruling in Webster Central School District v PERB, 75 NY2d 6, confirmed an exception this general rule -- where legislative scheme provides for such contracting out, as in the case of a school district-BOCES contract arrangement, the employer may unilaterally decide to “sub-contract” work to a BOCES.

In the Webster case the Court of Appeals held that Education Law Section 1950(4)(bb) allowed a school district to substitute BOCES summer school programs for its own summer school programs without first undertaking collective bargaining with its teachers’ unions.

In Vestal, the high court said that another provision set out in the same section, Section 1950(4)(d), allows a school district to contract with a BOCES to perform printing services then being performed by one of its own employees without first negotiating the change with the union.

The case began in September 1995, when the Vestal Central School District “contracted” for printing services with the Broome-Tioga BOCES. The decision indicates that the single Vestal district employee affected by the printing contract agreed to transfer to the BOCES and currently provides printing services for Vestal and a second school district.

The Vestal Employees Association filed an improper practice charge with the Public Employment Relations Board [PERB]. PERB’s Administrative Law Judge ruled that the district’s action constituted an improper practice and that it could not unilaterally subcontract out printing services performed exclusively by a bargaining unit employee (Matter of Vestal Employees Association, 30 PERB 4514).

On appeal, PERB reversed the ALJ’s ruling (Matter of Vestal Employees Association, 30 PERB 3029), holding that Section 1950(4)(d) allows unilateral changes of shared noninstructional services. PERB relied on the Commissioner of Education’s approval of the contract as evidence that “the printing services in issue in this case fall within the ‘other services’ authorized by the statute.”

Although a state supreme court justice sustained PERB’s ruling, the Appellate Division reversed, holding that “the broad scope of the Commissioner’s authority to approve cooperative services contracts could not overcome the Taylor Law’s mandate for public sector employment collective bargaining [Matter of Vestal Employees Association, 260 AD2d 699]. The Court of Appeals overturned the Appellate Division’s holding, reinstating PERB’s determination.

The high court said that the answer turned on whether or not printing falls within the scope of Section 1950(4)(d)(1). If it does, the statute must be examined to determine if there is any indication of a legislative intent that a school district’s decision to subcontract printing services was to be a mandatory subject of collective bargaining.

The Court of Appeals concluded that “[i]t is evident from the statute that the Legislature did not intend to limit the ‘available shared services’ to those enumerated in the statute” and delegated responsibility to the Commissioner of Education to identify the types of services that can be shared by school districts for the benefit of students. Accordingly, the statute does not limit contracts for “such other services as the commissioner may approve” to those that are “educational” or “nurturing” and therefore allows a school district to enter into a contract with a BOCES for such non-instructional services as printing.

In support of this view, the court noted that in 1996 the Legislature specifically limited the Commissioner’s discretion to approve school district/BOCES contracts in specified areas. Chapter 474 of the Laws of 1996 sets out the activities which “the commissioner shall not be authorized to approve as aidable shared services.”

Since printing does not fall within the list of prohibited “shared services,” and is a type of service that would promote the policy underlying the statute, the Court of Appeals concluded that “that printing falls within ... a service the Commissioner may approve to be offered on a cooperative basis by BOCES.”

The bottom line: the court decided that the statutory scheme embodies a legislative intent that a school district’s decision to subcontract printing services be exempt from collective bargaining.

This ruling has significant implications with respect to a school district’s plans to have a BOCES provide services that the district itself is then providing utilizing its own work force.

However, the court pointed out that Section 1950(4)(bb), which controlled in the Webster case, incorporated the job protection provisions. In contrast, the Court of Appeals noted that Section 1950(4)(d) “does not expressly refer to any job protection provisions for public employees whose jobs are transferred to a BOCES district as a result of a shared services contract.”

Here, however, the Vestal employee, an employee in the classified service, was “afforded certain protections upon the transfer of his functions as provided by Section 70.2 of the Civil Service Law. According, said the court, “[w]e need not explore the exact scope of the employee’s rights under Civil Service Law Section 70(2) because his Civil Service status has not been affected by the transfer and no allegation has been made to the contrary.”

This suggests that the courts might apply a stricter standard in situations where the contract has an adverse impact on the employment situations of the employees affected by the change.

A program takeover by BOCES pursuant to Education Law Section 3014-a involving classified service personnel is considered a transfer pursuant to Section 70 of the Civil Service Law. Accordingly, the Court of Appeals said that “the broad recognition that BOCES program takeovers are to be considered transfers under Section 70 implies that any action taken by BOCES pursuant to Section 1950 of the Education Law will not be subject to collective bargaining.” 

Filing of disciplinary charges against an employee must timely

Filing of disciplinary charges against an employee must timely

Transit Authority v Campbell, OATH Index No. 343/00

As a general rule, a statute of limitations continues to run with respect to the deadline for filing a timely action in the proper forum even if the complaint has been filed in a different, but incorrect, forum or notwithstanding the fact that another action is pending. This point was made clear to the Transit Authority when OATH Administrative Law Judge Ray Fleischhacker vacated Section 75 disciplinary charges it had filed against Colette Campbell as untimely.

In 1996 the New York City Transit Authority reassigned Campbell to a lower grade position. Campbell filed an Article 78 petition claiming the action constituted a disciplinary demotion, in violation of her Section 75 rights to due process. The court agreed, finding the Authority’s action constituted disciplinary action within the meaning of Civil Service Law Section 75.

It was conceded that on August 16, 1996, without a hearing, and as a result of the events which form the basis for the charges in this case, the Authority reassigned the respondent from a Level II supervisor to a Level I supervisor, with a significant cut in pay.

The Appellate Division rejected the Authority’s argument that “its action was a transfer permitted by Personnel Director rules without resort to a hearing” [Campbell v NYC Transit Authority, 253 AD2d 813], holding that Campbell was entitled to a Section 75 disciplinary hearing. The Court of Appeals denied the Authority’s petition to appeal on April 29, 1999 [93 N.Y.2d 805].

In July 1999 the Authority served Campbell with disciplinary charges setting out eight specifications of misconduct alleged to have occurred between May and August 1996. ALJ Fleischhacker, however, ruled that the agency’s delay in serving the charges until appeals related to the 1996 Article 78 action had been exhausted meant that they were filed too late.

Campbell contended that the statute of limitations in Section 75 began to run upon the commission of the alleged misconduct, was never tolled, and expired well before any charges were served. The Authority, on the other hand, argued that it was not until its effort to appeal the Appellate Division determination was denied by the Court of Appeals that it was obliged to serve charges.

Civil Service Law section 75(4) provides that “[n]otwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges . . ., provided, however, that such limitation shall not apply where the incompetency or misconduct complained of and described in the charges, would, if proved in a court of appropriate jurisdiction, constitute a crime.”*

Pointing out that all the Authority had to do “to toll the statute of limitations was to draft and serve the revised charges” in 1996, Judge Fleischhacker found that the Authority was time-barred from proceeding against Campbell.

Judge Fleischhacker said that a number of action could toll the running of the statute of limitations set out in Section 75, including:

1. An employee may be estopped to plead the Statute of Limitations where the employer was induced by fraud, misrepresentations or deception to refrain from filing a timely action;”

2. Where the misconduct constitutes “a continuing violation;” or

3. The parties can agree to extend limitations periods [but a court cannot, although a court order staying the disciplinary action tolls the running of the statute of limitations].

In contrast, the withdrawal of charges filed against an individual does not toll the statute of limitations insofar as “refilling such charges” at a later date is concerned.

* The statute of limitations for State employees designated “managerial or confidential” within the meaning of the Taylor Law is one year except where the charges, if proved in a court of appropriate jurisdiction, constitute a crime, in which case the one-year limitation would not apply.

Injury at the worksite

Injury at the worksite

Crockett v Safir, 269 AD2 227

Donna Crockett, a New York City police officer, was injured while on duty. She was “brushing her teeth in the ladies’ room of a police building.” A mirror dislodged and struck her.

Crockett’s asked that her injury be designated as “line-of-duty,” thereby entitling her reimbursement for her hospital bills. Her request was denied. The Commissioner ruled that Crockett was not “actually employed in discharging the orders of a superior officer at the time of the accident,” as required by the statute.

The Appellate Division affirmed the Commissioner’s decision, holding that his interpreting the statute to exclude personal hygiene not undertaken at the direction of a superior officer was not irrational. If, said the court, benefits were to be provided for any accidental injuries sustained while on duty by police officers, the Administrative Code would have so provided or at least used language similar to the “city-service” language used in Section 13-252 of the city’s Administrative Code concerning accident disability retirement.

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Negotiating paid religious holidays

Negotiating paid religious holidays

Port Washington UFSD v Port Washington TA, App. Div., 268 AD2d 523; motion to appeal dismissed, 95 NY2d 761, motion to appeal on Constitutional grounds dismissed 95 NY2d 790

According to the Appellate Division, Second Department’s ruling in the Port Washington Union Free School District case, a Taylor Law contract provision allowing an individual to be absent on a religious holiday with pay without charging his or her absence to leave credits violates the First Amendment.

In the course of collective bargaining under the Taylor Law, Port Washington agreed to include a “Religious Holiday” provision in the agreement.*

The contract clause allowed a teacher to be absent with pay on “any of the religious holidays designated by the New York State Commissioner of Education” without charging his or her absence to leave credits. To receive this benefit the teacher had to submit a written request to absent himself or herself for the holiday.

In September 1997, however, the district advised teachers who had requested paid days off for religious observance that the district would not implement the Religious Holidays provision in the contract “because it was unconstitutional.”

The district said that if a teacher wished to be absent for a religious observance, he or she would be required to charge the absence to his or her appropriate leave credits or request to be placed on a leave without pay for the duration of the absence.

Six teachers and the Port Washington Teachers Association filed a grievance and demanded that the district’s alleged violation of the agreement be submitted to arbitration in accordance with the Taylor Law contract’s grievance procedure.

The district objected and asked a State Supreme Court judge to stay the arbitration proceeding pursuant to Section 7503 of the Civil Practice Law and Rules. The district’s argument: the enforcement of the provision pursuant to an arbitration award would be unconstitutional.

The judge agreed with the district’s rational for refusing to implement the Religious Holidays provision -- the provision was unconstitutional -- and issued an order staying the arbitration. The teachers and the Association appealed.

The Appellate Division said that the first issue to be resolved in cases involving the granting of a stay of arbitration in a public sector dispute arising under a Taylor Law is whether the provision in question is, in fact, subject to arbitration. The court, referring to the Court of Appeals ruling in Matter of Blackburne, 87 NY2d 660, said:

If a statute, decisional law or public policy precludes the governmental employer and employee from referring the dispute to arbitration, then the answer to this inquiry is no and the claim is not arbitrable.

Citing Griffin v Coughlin, 88 NY2d 674, the Appellate Division pointed out that “[t]here is no firmer or more settled principle of Establishment Clause jurisprudence than that prohibiting the use of the State’s power to force one to profess a religious belief.” It affirmed the lower court’s order staying the arbitration on the grounds that the contract provision violated the Establishment Clause of the First Amendment of the Federal Constitution.

The Appellate Division’s rationale:

The Religious Holidays provision in the Taylor Law agreement between the district and the association “rewarded members of the Association who claimed to be religiously observant with more paid days off than those afforded to agnostics, atheists, and members who were less observant.”

In contrast to the type of provision included in the Port Washington contract, many Taylor Law collective bargaining agreements provide for absences with pay charged to “personal leave.”

Typically, such leave may be used for any “personal business” including the observation of religious holidays. Presumably such provisions would pass the Second Department’s Constitutional test as they neither favor the “religiously observant” nor penalize “agnostics, atheists, and members who were less observant.”

* The New York State Public Employment Relations Board [PERB] has held that negotiating days off for religious observances was not a mandatory subject of collective bargaining [CSEA v Eastchester UFSD, 29 PERB 3041].
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Disclosure of a public agency’s "policies, procedures, rules and regulations”

Disclosure of a public agency’s "policies, procedures, rules and regulations”

Sabilia v State of New York, 14 Misc.3d 1228(A)

Peter Sabilia and his wife, Stephanie, sued the State of New York after Peter was injured as a result of his being run over by a State motor vehicle sunbathing on the beach at Jones Beach State Park. The vehicle, a pick-up truck, was being driven by John J. Fitzwilliam, an employee of the New York State Park Police. Fitzwilliam allegedly drove over Sabilia while, according to Fitzwilliam, he was attempting to avoid a "large hole" during a routine beach patrol.

In the course of this litigation before Court of Claims Judge Milano, the Sabilias asked for copies of “policies, procedures, rules, regulations, and training manuals" concerning driving a vehicle on the beach that were applicable at the time. Judge Milano noted that:

“Importantly, the claimants' demand specifically stated that they did not seek "any police strategies regarding pursuit techniques/strategies of any kind whatsoever and is limited to those rules . . . dealing with driving on the beach (when not in pursuit)."

The State’s response:

"We will not be providing any training manuals, regulations, policies, procedures or other internal memorandums that pertain to driving a vehicle on the beach." The reasons for this advanced by the State: “its own policies and procedures have ‘little relevance to the legal standard of care’ and that the ‘standard of care in the operation of a police vehicle is controlled by the reckless disregard standard as defined in [Vehicle and Traffic Law] §1104(e) and relevant case law’"

The State also argued that materials requested by the Sailias are "privileged and confidential" and might have "a detrimental impact on the safety and security of the various officers, as well as the general public" and that the “disclosure of its policy as to non-emergency, routine operation of a pick-up truck on the beach will "limit the ability [of the officers] to successfully perform their duties and self evaluation and analysis."

Noting that the disclosure provisions of the Civil Practice Law and Rules are to be liberally construed the court said that "The party seeking to prevent disclosure has a heavy burden, especially where the materials sought are relevant” and that “It is the party opposing discovery who has the burden to prove that the particular items sought are exempt or immune from disclosure.”

Concluding that the State’s internally adopted standard of care, if any, for the routine, non-emergency operation of a motor vehicle on the beach, is relevant, Judge Milano said that a "failure to abide by its own rule is some evidence of negligence."*

As the State’s reliance on “the recklessness standard of care” set forth in Vehicle and Traffic Law §1104 (e), Judge Milano said that the Sailias “correctly state that the record is devoid of any evidence that Fitzwilliam was ‘involved in an emergency operation,’ which is a prerequisite for the statute to apply.”

Holding that “The conclusory assertions of privilege and confidentiality regarding [State’s] policy as to non-emergency, routine operation of a pick-up truck on the beach, set forth in the affirmation of [State’s] attorney, are unpersuasive and that the State failed to sustain its burden of showing that the disclosure of the requested materials would pose any danger to park police officers or the public,” Judge Milano ordered the State to provide the requested "policies, procedures, rules, regulations and/or training manuals regarding driving a vehicle on the beach which were applicable at the time" to the Court for an in camera** inspection by the court.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/disclosing-certain-policies-procedures.html

  

*  Citing Sherman v Robinson, 80 NY2d 483, Judge Milano said that the "[v]iolation of a company's internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence."

**  From the Latin “in chambers.” A review conducted by a judge in a court closed to the public or in the judge’s chambers rather than in open court.
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Joint employers

Joint employers

Putnam County Sheriff’s OMA v Putnam County, 33 PERB 3001

Who is the employer of the personnel serving with the Putnam County Sheriff’s Department? Putnam County contended that the county is the sole employer of Sheriff’s Department personnel while the Sheriff argued that he and the county were “joint employers” of these employees.

The issue arose when the Putnam County Sheriff’s Office Managers Association [OMA] filed a petition seeking certification as the exclusive bargaining agent for a unit consisting of lieutenants, captains and a chief criminal investigator employed by the “Office of the Sheriff.”

The county filed a response claiming that it was the sole employer of these employees and that they were managerial employees and thus not entitled to representation rights under the Taylor Law.

The sheriff also filed an answer in which he said that he and the county were “joint employers” of these employees and that he believed that certifying OMA to represent a negotiating unit consisting of these employees was appropriate.

Reversing a determination by its administrative law judge [ALJ], PERB ruled that the sheriff and the county were “joint employers” for the purposes of the Taylor Law.

PERB’s rationale: holding that the county was the sole employer would “relieve elected sheriffs of their right and duty to negotiate under the Act and it could elicit petitions to consolidate some or all of the titles in existing sheriffs department units with county-wide units, often the very units from which they were fragmented in the first place.”

This is not a new concept: in County of Ulster v Ulster County Sheriff, 3 PERB 3032, a case decided in 1970, PERB ruled that the county and the sheriff were joint employers and separate bargaining units for the sheriff’s department were appropriate.

What distinguishes the Putnam County sheriffs from other Putnam county governmental unit heads? The sheriff is an elected official and can only be removed by the Governor while other county unit heads serve at the pleasure of the county executive.

In contrast to the status of an elective sheriff, whom PERB characterized as an “executive officer,” PERB said that an “appointed sheriff” is “essentially a department head.

Accordingly, the elected sheriff has independent status as a joint employer. PERB had addressed this difference in Nassau County v Nassau County Sheriff, 25 PERB 3036. This is consistent with the general rule that an appointing authority’s power to appoint implies the power to remove, while the elective sheriff is a Constitutional office and subject to different removal procedures.

Turning to the ALJ’s ruling that “the at-issue employees” are not managerial, PERB said that the employees are “high-level supervisors akin to the clerks of the Court of Appeals and the Appellate Divisions, First and Second Departments. PERB concluded that despite their role in personnel and policymaking determinations, the clerks were neither managerial nor confidential employees.