Labor & Employment Law

Assigning exclusive bargaining unit work to non-unit workers subject to negotiation

By Harvey Randall, Esq.

Assigning exclusive bargaining unit work to non-unit workers subject to negotiation
Matter of County of Erie v State of New York Pub. Empl. Relations Bd., 43 A.D.3d 1311, Appellate Division, Fourth Department

The Civil Service Employees Association, Inc. (CSEA) and the Teamsters Local 264 (Teamsters) filed four unfair labor practice complaints with PERB alleging that the Erie County had unilaterally assigned certain employees represented by these organizations to perform duties outside of their bargaining unit work, which duties were exclusive to another bargaining unit.

These charges arose as a result of the Erie County Sheriff attempting to comply with a directive of State Commission of Correction (COC) to remedy overcrowding of Erie County?s two correctional facilities by adopting a ?single objective classification system for both facilities based upon factors set out in Correction Law §500-b.?

As a result, sheriff?s deputies began guarding ?sentenced defendants? in addition to ?presentenced defendants? and correction officers began guarding ?presentenced defendants? in addition to ?sentenced defendants.? The unions filed unfair labor practice charges alleging that the County had, without prior negotiation, transferred CSEA bargaining unit work to employees represented by the Teamsters and had transferred Teamsters bargaining unit work to employees represented by CSEA.

PERB?s Administrative Law Judge (ALJ) agreed, ruling that the County had violated section 209-a (1) (d) of the Civil Service Law by transferring exclusive bargaining unit work to non-unit employees. PERB affirmed this decision.

The Appellate Division rejected the County?s challenge to PERB?s determination, holding that PERB?s ruling did not address the implementation or the merits of the classification system required by COC. Rather, said the court, PERB?s ruling addressed the County?s failure to negotiate with the unions before transferring work assignments from one group guarding prisoners to the other as part of the implementation of the new classification system.

The court found that PERB?s determination that County could have negotiated with the unions before transferring work assignments was supported by substantial evidence, i.e., there was ?such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.? It did not accept the County?s argument that the requirements of Correction Law § 500-b preempted its duty to negotiate with the unions before changing work assignments.

According to the ruling, the collective bargaining of terms and conditions of employment pursuant to the Taylor Law is prohibited ?only where there is a plain and clear bar in statute or policy involving an important constitutional or statutory duty or responsibility that precludes an agency from exercising discretion as to how an issue may be resolved.?

In this instance, said the court ?There is no ?plain and clear bar in statute or policy? prohibiting the [County] from negotiating with [the Unions] concerning the effect that implementation of the new classification system would have upon the distribution of guarding duties.?

The Appellate Division observed that ?While policy decisions implementing the mission of a public employer are not subject to mandatory bargaining? citing Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660 and Matter of Lippman v Public Empl. Relations Bd., 296 AD2d 199, here ?the decision to transfer guarding responsibilities does not constitute a policy decision implementing the Sheriff?s mission to classify [prisoners] pursuant to the classification system required by COC.?

Finding that a classification system based on the factors set forth in Correction Law §500-b could be implemented without the transfer of any work assignments, the court ruled that PERB properly determined that any such transfer was a matter relating to the terms and conditions of employment.

Full post as published by New York Public Personnel Law on May 01, 2008 (boomark / email).