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PERB reverts to its earlier ?past-practice? analysis in determining ?unit work?

PERB reverts to its earlier ?past-practice? analysis in determining ?unit work?
Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231

The Public Employment Relations Board held that Manhasset Union Free School District had violated Civil Service Law §209-a(1)(d) by transferring "unit work to outside contractors."

When Manhasset proposed to outsource all student bus transportation to private contractors, the Manhasset Educational Support Personnel Association (MESPA), representing the bus drivers and vehicle maintenance personnel working for Manhasset, objected. The parties met in collective bargaining but in April 2005, negotiations reached an impasse. Manhasset then awarded private contracts for the transportation for all of its students.

MESPA filed a notice of claim and then an improper practice charge with Public Employment Relations Board (PERB) claiming the school district?s action constituted the unilateral outsourcing of unit work. PERB agreed and ordered Manhasset to ?end the outsourcing and directed that the affected unit employees be reimbursed for lost wages and benefits.?

In considering the question of whether an entity engaged in an improper practice, here the unilaterally outsourcing transportation of public school students, the Appellate Division said that "[t]o establish a violation of Civil Service Law § 209-a (1) (d), it must be shown that the work in question had been performed by unit employees exclusively, " citing Matter of Romaine v Cuevas, 305 AD2d 968.

Manhasset argued that PERB's determination that it had engaged in an unfair labor practice did not use its "core components" test for the existence of a discernable boundary and, instead, reverting to its former "past practice" analysis.

PERB conceded that its analysis of improper practice charges has changed since the introduction of the concept of "core components" because it found that concept ?too limiting and expressly returned to its earlier ?past practice? approach, which focuses on whether the employer's practice was unequivocal and was continued uninterrupted for a period of time under the circumstances to create a reasonable expectation among the affected unit employees that the [practice] would continue.?

The Appellate Division concluded that past practice ?establishes the exclusivity of the unit's work? and the fact that PERB's use of a past practice analysis, although departing from certain of its precedents, was neither arbitrary nor irrational and said that because "PERB provided a detailed explanation for its decision to depart from its previous analysis . . . [and we grant it] the deference to which it is entitled in the realm of improper labor practices."

On a subordinate issue, the Appellate Division also concluded that PERB's finding that Manhasset?s substitute bus drivers come within MESPA's bargaining unit was rationale.
The court, however, found that there was a difficulty with PERB's remedial order.

Noting PERB's order required Manhasset to restore the personnel and facilities of its former transportation department, the court pointed out that Manhasset had ?already sold its buses and leased its garage? Thus, said the Appellate Division, compliance with PERB?s order may require taxpayer approval ? which is speculative.

In addition, the court commented that compliance could be delayed by district's contractual obligations with respect to bus service.Under these unique circumstances, said the court, enforcement of PERB's current order is unreasonable and it remitted the matter to PERB to fashion :a remedy that will allow for the contingencies" that could prevent Manhasset?s compliance with its order.

Full post as published by New York Public Personnel Law on February 04, 2010 (boomark / email).