Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.

Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.

Matter of the Town of Dresden, PERB decision U-7383

The genesis of this decision was the Town Supervisor refusal to sign the negotiated Taylor Law agreement because he contended that he lacked the authority to reach a final agreement without the prior approval of the Town Board. As a result, the Union filed an improper practice charge with PERB.

Distinguishing between the different roles played administrators and legislators in Taylor Law negotiations. PERB said that the Taylor Law contemplates negotiations will be an executive rather than a legislative process.* Thus an agreement is between the administrative and the Union negotiating teams is binding on the parties.

However, certain provisions set out in the agreement may require the approval by the legislative body having jurisdiction such as a County Legislature, a Town Board or a School Board before they may take effect  Typically these provisions requiring the appropriation of funds necessary to implement the terms and conditions of the agreement and such terms and conditions agreed upon are not enforceable until the necessary legislative action is taken.

§204-a.1 of the Civil Service Law provides that “Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in  type not smaller than the largest type used elsewhere in such agreement:

"It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval."

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PERB has also determined that a legislative body may not unilaterally reserve the power to ratify the entire agreement although the parties may agree that the result of their negotiations will be subject to the legislative body's ratification.

Further, in the event members of the legislative body actually participates in the negotiations, such members' agreements are binding as to them and such persons cannot later vote against the agreement on the theory that they are now wearing their "legislative" hat as PERB’s decision in Matter of Jeffersonville-Youngsville CSD, U-6341, demonstrates.

In this instance the School District’s team consisted of the School Superintendent and three School Board members. The District’s negotiating team and the Union’s negotiating teams had agreed upon all terms of a proposed collective bargaining agreement except a "2nd year salary offer." The District’s team obtained authority to place an additional $2,000 "on the table" from the seven member School Board. However, during the final day of negotiations the Union accepted a "2nd year salary offer." offer that provided for more money than the additional $2,000 earlier authorized by the Board.

Although the Union's member subsequently ratified the agreement, the full School Board did not, with two to the three Board members of the District's negotiating team voting against the "ratification."

When the Superintendent refused to execute a "memorandum agreement," the Union filed an improper employer practice claim with PERB. PERB directed the Superintendent to sign the memorandum agreement with the Union and, if requested, to sign "a formal ... contract" reflecting the salary agreements the District’s team had reached with the Union.

In addition, PERB indicated that as to the two Board Members on the District’s negotiating team voting against ratification in their "Board Member" capacity, "each member of a negotiating team is obligated to support every part of an agreement unless the other party has been advised that he (or she) dissented from the part of the agreement which he subsequently opposed" in the course of negotiations.

As noted above, the Taylor Law provides that any provision of an agreement that requires action by the relevant legislative body such as the allocation of necessary funds is not to take effect until the legislative body concerned acts to provide the required monies. In this instance presumably all three "District negotiating team/Board members" are required to vote in favor of the allocation of additional funds ultimately agreed upon by the District and employee negotiating teams consistent with their "District team position" in their capacity as a member of the School Board.

The Jeffersonville-Youngsville CSD decision illustrates the " unintended consequences" that could result when a member of the relevant legislative body serves on the employer's negotiating team.. 

* Civil Service Law §201.12 provides as follows: 12. The term "agreement" means the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization which becomes a binding contract, for the period set forth therein, except as to any provisions therein which require approval by a legislative body, and as to those provisions, shall become binding when the appropriate legislative body gives its approval." [See, also, Civil Service Law §204-a.1]

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Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute

Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute
Town of Islip v New York State Pub. Empl. Relations Bd., 2014 NY Slip Op 06322, Appellate Division, Second Department

The Town of Islip had discontinued assigning vehicles to certain employees for their use in commuting between home and work. The employee organization filed an improper practice charge with the Public Employment Relations Board [PERB] and PERB issued a decision requiring the Town to [1] "restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008," and [2] “make whole unit employees for the extra expense incurred as a result of the unilateral withdrawal of the vehicle assignments, if any, together with interest as the maximum legal rate.”

The Appellate Division issued a judgment dated March 13, 2013 confirming PERB’s determination.* The Town appealed and the Court of Appeals modified the Appellate Division’s decision and judgment** “with directions to remand the matter to the New York State Public Employment Relations Board for further proceedings in accordance with its opinion.

The Court of Appeals had determined that the remedial order issued by PERB in this matter was "unduly burdensome under the circumstances, and d[id] not further the goal of reaching a fair negotiated result." 

The Court of Appeals explained that courts review “the remedies imposed by PERB with deference to its expertise” and courts should sustain a remedy fashioned by PERB for an improper practice “if reasonable.” However, said the court, “[i]t is for the courts to examine the reasonable application of PERB's remedies.”

In this instance the Court of Appeals determined PERB's remedial order requires the Town to “[f]orthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008.” However a PERB injunction was not sought to preserve the status quo ante, and” the Town sold some or all of the cars formerly permanently assigned to blue- and white-collar unit employees.” Accordingly, PERB order, said the court, would force the Town to invest significant taxpayer dollars to replace these vehicles, holding that this would be “unduly burdensome under the circumstances, and does not further the goal of reaching a fair negotiated result.”

The court cited Matter of Manhasset Union Free School Dist., 61 AD3d 1231, in explaining its ruling.

In Manhasset the Appellate Division held that enforcing a PERB order for the school district to restore the personnel and facilities of its former transportation department was unreasonable where the district had sold its buses and leased its garage, and compliance with the order might require taxpayer approval. The Appellate Division then remitted the matter to PERB so that it “may fashion a remedy that grants commensurate, practical relief to the employees subject to the improper practice without requiring the school district to purchase a whole new fleet of vehicles with an uncertain future."

As to the Islip appeal, the Appellate Division held that “in light of the determination of the Court of Appeals, we remit the matter to PERB for further proceedings in accordance with that determination.”

* Town of Islip v PERB, 104 AD3d 778.

** Town of Islip v PERB, 23 NY3d 482

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06322.htm
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Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of Education

Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of Education

Appeal of United Federation of Teachers, Local 2, and the New York City Department of Education, Decisions of the Commissioner of Education, Decision  No. 16,668

United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO [Local 2], the exclusive Taylor Law collective bargaining representative for library media specialists (“LMSs”) and assistant library media specialists (“ALMSs”), filed an appeal with Commissioner of Education pursuant to 310 of the Education Law in which it alleged that the New York City Department of Education (“NYCDOE”) failed to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations, [8 NYCRR 91.2].

The Commissioner dismissed Local 2’s appeal for a number of procedural reasons, including:

1. Lack of standing to represent an individual or class of individuals: The Commissioner said that Local 2’s appeal must be dismissed to the extent Local 2 attempted to assert claims on behalf of students. The Commissioner explained that “Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310” and while Local 2 may have, under certain circumstances, standing to assert claims on behalf of its members, it lacks standing to assert the rights of others, in this instance “students” in certain schools.

2. Lack of organizational standing. Here, said the Commissioner, Local 2 failed to demonstrate that it met the first requirement of the three-part test for "organizational standing" required to assert claims on behalf of its members.  In order to establish organizational standing, Local 2 was required to demonstrate [1] that one or more of its members has standing to sue, [2] that the interests advanced in the matter “are sufficiently germane to the individual members’ purposes” such that the organization is an appropriate representative of those interests, and [3] that the participation of the individual members is not required to assert the claim.

With respect to the first test, the Commissioner found that Local 2 failed to allege that any of its individual members had, in fact, suffered harm but, rather, alleged only that such members cannot “seek placement” in certain schools.

3. Mootness. The Commissioner noted that Local 2 challenged NYCDOE’s compliance with the Commissioner’s regulation for the 2011-2012 school year. Thus, said the Commissioner, the appeal must also be dismissed as moot as that school year had since ended. In the words of the Commissioner, “[t]he Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.”*

However, the Commissioner said that although he was “constrained to dismiss the appeal” for procedural reasons, he was troubled by the fact that NYCDOE had admitted only “substantial” compliance with the regulation and asserted that "it is in the midst of developing a waiver process” through which its schools “could request the Commissioner to approve an ‘alternate arrangement,’ pursuant to §91.2.”** Further, said the Commissioner, the record indicates that NYCDOE has failed to staff certain secondary schools with the required number of LMSs or ALMSs or to provide an alternative arrangement approved by the Commissioner. 

The Commissioner then took administrative notice*** that, subsequent to the commencement of the instant appeal, NYCDOE had submitted a request to the State Education Department for a waiver but subsequently withdrew its request with assurances that it would be submitting a comprehensive strategic plan for libraries that would address the need to properly staff schools with LMSs and ALMSs. To date, said the Commissioner, no such comprehensive plan has been submitted.  

In view of this, the Commissioner directed NYCDOE to comply with the requirements of 8 NYCRR §91.2 in the 2014-2015 school year and thereafter.

In addition, the Commissioner directed the State Department of Education’s Office of Curriculum and Instruction to provide guidance and technical assistance to NYCDOE to this end.

*The Commissioner noted that the appeal did not fall within an exception to the “mootness doctrine” as the determination of issues involving the NYCDOE’s compliance with the regulation’s staffing requirements “are necessarily fact-specific and can be addressed in a subsequent appeal that presents a live controversy.”

** 8 NYCRR 91.2

*** See * NYCRR 276.6.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16668
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