Labor & Employment Law

Contracting out work performed by employees in a negotiating unit

By Harvey Randall, Esq.

Contracting out work performed by employees in a negotiating unit
Matter of Patricia Sliker v New York State Pub. Empl. Relations Bd., 42 A.D.3d 653, Appellate Division, Third Department

The Public Employment Relations Board ruled that the Honeoye Central School District did not violate Civil Service Law §209-a(1)(d) when it transferred work being performed by members of a negotiating unit to an outside contractor.

The Honeoye Central School District Support Staff Association had filed an improper practice charge against the District complaining that the District had transferred certain lawn and landscaping work to an ?outside contractor.? Such work, the Association alleged, had been performed exclusively by its members.

Although PERB?s Administrative Law Judge found that the District when it transferred the lawn and landscaping work to an outside contractor had violated Civil Service Law §209-a(1)(d), PERB disagreed. PERB overturned the ALJ?s finding, ruling that there was no violation because the subject work was not exclusive to the Association?s members.

The Appellate Division sustained PERB?s ruling, noting that its review is limited to whether PERB?s determination is supported by substantial evidence.

As to ?whether the work [in question] has been performed by unit employees exclusively and whether the reassigned tasks are substantially similar to those previously performed by unit employees,? the court found that the lawn and landscaping work which was contracted out is the type of work that was normally performed by the District?s groundskeepers, who are unit members.

However, said the court, there is evidence in the record before PERB that many of the groundskeepers? duties had been performed over the years by their supervisor, a nonunit employee. Although the supervisor merely performed such tasks as needed rather than on a regular schedule, the Appellate Division ruled that the scope and duration of his activities establish that they were more than incidental.

Dismissing Sliker?s appeal, the Appellate Division said that ?substantial evidence supports PERB?s determination that the District did not violate Civil Service Law §209-a(1)(d) because the work at issue was not exclusive to the Association?s members.

Full post as published by New York Public Personnel Law on April 09, 2008 (boomark / email).