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A policy decision by the employer is not subject to "pre-negotiations;" the impact of that decision on unit members is negotiable

A policy decision by the employer is not subject to "pre-negotiations;" the impact of that decision on unit members is negotiable
Matter of County of Erie & Erie County Sheriff v State of New York Pub. Empl. Relations Bd. &c., 2009 NY Slip Op 01243, Decided on February 19, 2009, Court of Appeals

Civil Service Employees Association, Inc. Erie County Unit of Local 815 (CSEA) and Teamsters Local 264 of International Brotherhood of Teamsters, Warehousemen, and Chauffeurs (Teamsters) filed improper practice charges against County of Erie and Erie County Sheriff for allegedly transferring exclusive bargaining unit work to nonunit employees in violation of Civil Service Law §209-a(1)(d).* PERB ruled in favor of Erie County and the Erie County Sheriff appealed and the Court of Appeals held that PERB?s decision, sustained by the Appellate Division, should be reversed.

In August 2000, the Erie County Sheriff assumed control of both Erie County Holding Center and the "Annex," a space adjoining the Correctional Facility which holds the overflow of inmates from the Holding Center following the approval of a referendum by Erie County voters. The guarding duties of corrections officers and deputy sheriffs at both facilities remained unchanged.

Subsequently the Sheriff advised the union that it was necessary to implement a new classification system for the housing of inmates based on risk without consideration of adjudication status, resulting in the commingling of sentenced and unsentenced inmates. The union objected and the plan was withdrawn in favor of a separate classification systems for the Correctional Facility and the Holding Center in order to maintain the separation of sentenced and unsentenced inmates.

The State Commission on Correction later cited the Sheriff for overcrowding at the Holding Center while the Correctional Facility had vacancies because of a unified classification system for both facilities was not in place. In response to the Commission, the Sheriff promulgated a single classification instrument that resulted in the commingling of sentenced with unsentenced inmates at both facilities, and corrections officers and deputy sheriffs being assigned to guard both.

The unions, complaining that this action resulted in the unilaterally transferring exclusive bargaining unit work to nonunit employees, filed an improper practice charge with PERB.

In reversing the Appellate Division?s holding, the Court of Appeals said that ?A public employer's decisions are not bargainable as terms and conditions of employment where "they are inherently and fundamentally policy decisions relating to the primary mission of the . . . employer,? citing Board of Educ. of City School Dist. of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660.

In contrast, said the court, although policy decisions are exempt from bargaining, the impact of those decisions, if any, are not.

Noting that in West Irondequoit Teachers Assn., 35 NY2d 46, it had upheld a PERB determination that found the fixing of class size not to be a term or condition of employment (and therefore not negotiable), but rather a matter of educational policy, this did not preclude the teacher's association from bargaining over the impact of the policy on the teachers' working conditions. In this instance, said the court, PERB's determination that the Sheriff was required to first negotiate with the unions before implementing a classification policy satisfactory to the Commission was incorrect.

Noting the statutory requirement that the Sheriff implement and maintain a formal and objective classification system, the Court of Appeals concluded that PERB's determination that Erie County and its Sheriff committed an improper practice by unilaterally transferring unit work to nonunit employees is not entitled to deference.

However, once having implemented such a system, the impact of that decision, if any, upon the contracts between the parties is subject to collective bargaining.

The court then ruled that the judgment of the Appellate Division should be reversed and PERB?s determination annulled.

*CSL §209-a (1) (d), states that "[i]t shall be an improper practice for a public employer or its agents deliberately . . . to refuse to negotiate in good faith with the duly recognized or certified representatives of its public employees."

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01243.htm

Full post as published by New York Public Personnel Law on February 20, 2009 (boomark / email).