Public sector employers and unions have long wrestled over what subjects of bargaining are mandatory, permissive, or prohibited. The New York State Supreme Court Appellate Division, Second Department, recently rendered a decision in Matter of City of Long Beach v. NY State Pub. Empl. Relations Bd. clarifying the duty to bargain in relation to Civil Service Law § 71.
Civil Service Law § 71 provides that where an employee is out of work by reason of a disability resulting from an injury or disease at work, they are entitled to a leave of absence for at least one year, unless the disability is permanently incapacitating. The Department of Civil Service has promulgated very specific implementation regulations for Civil Service Law § 71, including detailed procedures for notifying an employee of the right to a one-year leave of absence during continued disability, an impending termination following the expiration of that one-year period, and the right to a hearing and to apply for a return to duty.
In City of Long Beach, a member of the Long Beach Professional Firefighters Association was injured in the line of duty and remained out of work. A few days prior to the end of the one-year window under § 71, the City of Long Beach sent the employee a letter notifying him that a hearing would be held, that he had an opportunity to be heard, and that if he failed to attend the hearing it would be determined that he did not contest the termination of his employment. The contents of the letter followed the proper procedure under Civil Service Law § 71. It appears the employee never responded to the notice to appear.
Thereafter the Long Beach Professional Firefighters Association requested the city negotiate a procedure for separating a member from service under Civil Service Law § 71. When the city refused, the Long Beach Professional Firefighters Association filed an improper practice charge alleging refusal to negotiate in violation of the Taylor Law. An administrative law judge determined that the city had committed a violation and New York State Public Employment Relations Board (PERB) affirmed, maintaining a long-standing position that such procedures related to Civil Service Law § 71 must be bargained. The city challenged PERB’s determination in a petition pursuant to Article 78 of the Civil Practice Law Rules in New York State Supreme Court. The Supreme Court granted PERB’s motion to dismiss and dismissed the petition. The city appealed to the Appellate Division, and the Appellate Division reversed.
While there is a presumption in favor of collective bargaining, every possible subject does not require that a party bargain under the Taylor Law. Indeed, in this instance, the Appellate Division analyzed the specific instructions under the Civil Service Law and associated regulations and determined there was “no room for negotiation of the procedures to be followed prior to the termination of an employee’s employment upon the exhaustion of the one-year period of leave.” Accordingly, the Appellate Division reversed the Supreme Court and determined the city had no duty to bargain with the union on this subject, effectively overruling PERB’s argument, which it had consistently argued, that procedures under this section of the Civil Service Law must be bargained.
This decision is likely to be appealed to New York’s highest court, the Court of Appeals. However, there is no certainty that the Court of Appeals will decide to hear the case. If this decision stands, the ripple effect could be significant. First, a public employer that receives a bargaining proposal from a union relating to the administration of Civil Service Law § 71 may be able to deny the proposal out of hand without fear of an Improper Practice charge. Second, a public employer which has not agreed on a procedure regarding this section of the Civil Service Law may be able to enforce its statutory rights without interference from a union. Finally, even if a public employer has agreed with a union on a Civil Service Law § 71 procedure, this decision may provide grounds to challenge enforceability of that procedure under public policy, statutory, and/or decisional law grounds.
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