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Demand for premium pay where union cannot negotiate a disciplinary procedure a mandatory subject of collective bargaining

Demand for premium pay where union cannot negotiate a disciplinary procedure a mandatory subject of collective bargaining
Matter of City of New York v New York State Public Employment Relations Board, 2008 NY Slip Op 52693(U), Decided on January 18, 2008, Supreme Court, Albany County, Judge Henry F. Zwack, [Not selected for publications in the Official Reports]

The Public Employment Relations Board held that the Patrolmen's Benevolent Association of the City of New York's Premium Pay Proposal was a mandatory subject of bargaining. Underlying PERB?s ruling was the PBA?s proposal for premium pay because it could not negotiate a disciplinary procedure for unit members.

The genesis of the PBA proposal was a judicial decision that the unit members are employed in a jurisdiction ? the City of New York -- where providing for disciplinary procedural administrative due process protections rests exclusively with the Police Commissioner.

PBA argued that it?s proposal constituted a wage demand and thus it was a mandatory subject of collective bargaining within the ambit of the Taylor Law [Civil Service Law Article 14].

The PERB decision, in relevant part, stated that it agreed with its Administrative Law Judge?s determination ?that the demand was a mandatory subject of bargaining because the essential nature of the demand is for increased compensation.?

Observing that ?It is well established that PERB determinations are to be accorded deference for matters within its area of expertise,? Judge Zwack ruled that unless a matter turns on a pure question of statutory interpretation, an issue as to whether a bargaining proposal involves a "term and condition" of employment, which renders it a mandatory subject of collective bargaining under the Taylor Law, is controlled by PERB's "sound discretion."

Noting that wages are a mandatory subject of negotiation under the Taylor Law (see Civil Service Law §§201[4] and 204[3]), Judge Zwack held that PERB's reliance on its past precedents, including In re City of Fulton, 30 PERB 3012, was reasonable.*

Here, said the court, although the premium pay proposal does not concern an increase in wages for work performed, PERB's conclusion that the PBA's premium pay proposal concerned compensation related to working conditions is reasonable and is entitled to judicial deference.

Accordingly, Judge Zwack sustained PERB?s ruling that the PBA?s premium pay proposal was "a proposal for an increase in the level of compensation for PBA members in consideration for the impact of the City's unilateral right to set disciplinary procedures,? holding that PERB's ruling was legally permissible, reasonable and rational in its concluding that the premium pay proposal constituted a mandatory subject of bargaining.

* In City of Fulton, the union sought compensation that was tied to the staffing level, specifically extra pay in the event staffing levels fell below a certain number. PERB rejected Fulton's argument that the proposal was nonmandatory because it was for a minimum staffing level. PERB ruled that the proposal was not for a certain staffing level, but rather for a rate of compensation that corresponded to the staffing level.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52693.htm

Full post as published by New York Public Personnel Law on September 15, 2009 (boomark / email).