Newsletter: April 2008

WALT PELLEGRINI RECEIVES THE NPELRA AWARD OF EXCELLENCE

Your National Public Employer Labor Relations Association (NPELRA) annually presents its Award of Excellence to an individual who has made an outstanding contribution to management in public sector labor relations during their career. The Award represents NPELRA's highest acknowledgment of the recipient's dedication and achievement in the development of positive labor-management relations. It signifies professional efforts resulting in successful labor relations over an extended period of time.

At the 2008 NPELRA Annual Conference in Clearwater this past April, Walt Pellegrini, General Counsel for the Governor’s Office of Employee Relations, received the award. In addition, the NPELRA Board appointed Walt to fill the balance of the term of NPELRA Board member Paul Hutchins who resigned from the New York City Transit Authority.

GOVERNOR VETOES POLICE CHIEF MANDATE

On April 23, the new Governor vetoed S. 6735, a bill which would have amended Civil Service Law, §58(1-c) to expand an existing mandate which requires a police chief in any police department serving a municipality with a population of less than 150,000 if the department has more than 4 full time officers. The bill would have required a chief in any department that had more than 15 part-time officers and would have required that the position of police chief in all departments be full-time. The bill was introduced at the request of the NYS Association of Chiefs of Police.

Aside from the clear financial mandate, there also would have been some agita for part-time police chiefs. There are approximately 50 such individuals and, pursuant to Civil Service Law, §42(2), the position has been placed in the noncompetitive class by the civil service agency having jurisdiction. Full-time police chiefs who do not have the authority to hire and fire have been placed in the competitive class. Had the bill been signed, the part-time chiefs seeking to retain their position would have been required to sit for the exam, pass it, score in the top 3, and get appointed to the full-time position.

The voting records of your State legislators are available on the Senate and Assembly websites. Use “nys senate” or “nys assembly” on a search engine and then search for the bill. Once again, one has to ask: What were you thinking?

TAYLOR LAW CONFERENCE TO BE OFFERED

The Public Employment Relations Board (PERB) will host a conference on May 15 and 16 to commemorate the first 40 years of the Taylor Law at the Desmond Hotel, 660 Albany-Shaker Road in Colonie (800/448-3500). The registration fee is $350 and includes all event meals and program materials. The full program details are available at www.perb.ny.us.gov which is the agency’s web site.

Featured speakers include Jerome Lefkowitz, PERB chair; R. Theodore Clark, a management attorney with Seyfarth Shaw LLP, Chicago; Thomas Kochan, currently at MIT’s Sloan School of Management and author of the Kochan Report which more than 30 years ago studied the impact of New York’s compulsory arbitration law; Albany Law School professor Vincent Bonventre; Troy Oechsner, Deputy Superintendent for Health, NYS Insurance Department; and Harry Katz, dean of the ILR School at Cornell. The Conference has several co-sponsors, with CLE approval pending.

PERB DECISIONS

These decisions have been issued by the Public Employment Relations Board or its staff. Any summary that might be of interest should be reviewed as to the facts and circumstances of the case to assure the decision might be applicable to circumstances in which you may have an interest. In addition, any decision should be researched to ascertain its subsequent disposition, if in fact an appeal to the Board was made, and, if it was, further researched to determine if a court appeal followed. Email your editor John Galligan at galli14@earthlink.net for a copy of any decision summarized. Use the PERB web site (www.perb.state.ny.us) where summaries of recent decisions appear and the agency’s forms can be downloaded.

  • the importance of expedited processing of petitions for compulsory arbitration is underscored by the specific statutory time frames set forth in the Taylor Law. Under Civil Service Law, §209(4)(c)(ii), an impasse involving police officers, if not resolved in mediation, will be referred to a tripartite arbitration panel upon the filing of a petition by either party to the impasse or by both. The panel will consist of one member appointed by the public employer, one member appointed by the union involved, and one neutral appointed jointly by both parties or, should there be no agreement, selected pursuant to an alternate striking procedure from a list of individuals provided by the Board's Director of Conciliation. June 27 Board decision in City of New York;

  • discussions regarding contract proposals that parties in negotiations may have agreed to be characterized as “off the record” are not negotiations within the scope of the Taylor Law. Consequently, such proposals may not be submitted to an arbitration panel as matters that have been negotiated and are still outstanding and in need of resolution by the panel. June 27 Board decision in Village of Johnson City;

  • if a party fails to seek the disqualification of an arbitrator based upon a known disqualifying relationship, it will be deemed to have waived its objection if it is not raised prior to the arbitration. The issue of arbitrator disqualification must be resolved in the first instance. June 27 Board decision in City of New York;

  • in deciding a motion to dismiss an improper practice charge at the close of the charging party's presentation, an ALJ must assume the truth of all of the charging party's evidence and give the charging party the benefit of all reasonable inferences that can be drawn from the assumed facts. June 27 ALJ decision in Lake Mohegan Fire District;

  • a change in the deployment of staff is a management prerogative over which there is no obligation to negotiate because such a decision relates primarily to the mission of the employer. While staffing decisions have long been held by the Board to be a managerial prerogative, there is also an obligation to bargain over safety. However, staffing does not become a mandatory subject by being characterized as a safety concern. As was demonstrated by the Board decision in City of Newburgh, 10 PERB ¶3001 (1977), even though there is a safety component to a determination as to how many employees will be assigned a particular task, the predominant nature of the determination relates to the manner and means by which an employer will fulfill its mission to the public. June 27 ALJ decision in Lake Mohegan Fire District;

  • in order for a union to establish a prima facie case of employer retaliation against an employee for having engaged in activity protected by the Taylor Law, there must be proof that 1) employee was engaged in protected activity, 2) those responsible for the employer's conduct knew of that activity, and 3) they acted because of it. July 2 ALJ decision in Westchester County;

  • in raising a duty satisfaction defense to an improper practice charge alleging a failure to negotiate good faith, an employer is asserting that it and the representative of its employees had bargained over a particular matter and had reached an agreement. Having done so, the employer would be privileged to act pursuant to the agreement, notwithstanding a contrary past practice. July 6 ALJ decision in Oceanside UFSD;

  • the conditional dismissal of an improper practice charge pursuant to PERB's jurisdictional or merits deferral policy need not be raised as a defense by the respondents to the charge in order for the policy to be invoked. The matter of deferral can appropriately be raised by an ALJ on his or her own motion, even where the charging party has elected to not file a grievance. July 15 ALJ decision in Webb UFSD; and

  • in determining whether to exclude employees from coverage under the Taylor Law based upon their managerial or confidential duties, PERB is required to conservatively and narrowly apply the statutory criteria and not exclude employees except in clear instances, with all uncertainties resolved in favor of coverage. July 2 ALJ decision in Fashion Institute of Technology.

    NEWSLETTER CONTRIBUTION REQUESTED

    A member has asked for information regarding a union’s discovery rights in a grievance arbitration proceeding. Anyone willing to offer a cite to a PERB case or offer an article for publication?

    MEMBER LIST INCLUDED

    This mailing includes a list of Association members. Please check your listing to assure that the information is correct. Forward any correction or update to John Galligan at galli14@earthlink.net for the next list. Those having an e-mail address that does not appear, please forward yours for the next list. The member list is only distributed to members and to no oth

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