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Zipper clause in a collective bargaining agreement

By Harvey Randall, Esq.

Zipper clause in a collective bargaining agreement
Village of Tarrytown v Tarrytown Police Asso., 31 PERB 4540

A zipper clause in a Taylor Law collective bargaining contract sets out the fact that the parties ?agree that to the extent agreement is possible on negotiable items it has been reached in [the] agreement.?

In the Village of Tarrytown case, the Assistant Director of Public Employment Practices and Representation, Kenneth J. Toomey, was asked to determine if a zipper clause precluded negotiations providing for paid time off for police officer?s called to jury duty after the contract was ratified. The subject had not been discussed during negotiations of the 1995-1997 collective bargaining agreement between the parties.

In response to an amendment to the law eliminating the statutory exemption of police officers from jury duty that took effect on January 1, 1996, the village unilaterally implemented a new jury duty policy for its police officers.

The village agreed to negotiate the change but when unable to resolve the issue to the mutual satisfaction of the parties, ?the Village submitted its final jury duty proposal ... and suggested that the issue be addressed in upcoming negotiations for a new contract since mediation and [interest] arbitration on one topic is ill-advised.?

On November 21, 1996 the village rescinded its February 27 jury duty policy and subsequently required officers called to jury duty to use their accrued time accruals or go on leave without pay.

The village defended itself from the union?s improper practice charge by arguing that the union?s proposal was not arbitrable because it had no obligation to negotiate the provision in view of the zipper clause set out in the 1995-97 agreement.

Toomey rejected the argument, pointing out that at the time the agreement was being negotiated ?no issue regarding jury duty leave or procedures for police officers existed because police officers were not subject to service on juries.?

Accordingly, it must be assumed that the issue of jury duty was not, and could not reasonably been expected to be, a subject of collective bargaining.

The Village apparently conceded that ?jury duty leave? was a mandatory subject of collective bargaining; it simply relied on the zipper clause to avoiding reopening negotiations of the 1995-97 agreement.

Toomey made two significant findings:

1. A ?zipper clause? does not preclude the reopening of negotiations concerning a subject which has become negotiable as the result of a statute enacted during the term of the agreement; and

2. Compulsory interest arbitration is available in the event of an impasse in negotiations arising in the course of the reopening of negotiations during the term of a collective bargaining agreement.

Toomey cited the Court of Appeals ruling in City of Newburgh v PERB, 66 NY2d 166, decided in 1997, as authority for his conclusion that the matter was subject to interest arbitration. In Newburgh the Court found that interest arbitration is available to resolve disputes ?arising during the term of a collective bargaining agreement.?

Full post as published by New York Public Personnel Law on January 31, 2008 (boomark / email).