Tag: public sector

September 26, 2018

Laborers in New York Get Discipline Protection

As of September 7, 2018, New York’s Civil Service Law now extends disciplinary protections to public employees in the labor class. On that date, Governor Cuomo signed off on an amendment to Civil Service Law Section 75, which has long established procedures for disciplining many governmental employees in the State. Before this recent amendment, most laborers were excluded.

What Is the Labor Class?

According to the Civil Service Law, the labor class includes all unskilled laborers employed by governmental employers within the state. It does not include positions for which a competitive examination is available.

Which Civil Service Employees Does Section 75 Cover?

Before the amendment, Section 75 covered the following members of the Classified Civil Service (with limited exceptions):

All competitive class permanent appointees.
Any permanent appointee who was honorably discharged from the U.S. armed forces after serving in time of war.
Any permanent appointee who is an exempt volunteer firefighter.
An employee who has served at least 5 years of continuous service in a non-competitive position not designated as confidential or influencing policy.
A non-competitive employee of New York City in the position of Homemaker or Home Aide who has at least 3 years of continuous service in the position.
A police department employee holding the position of detective for three continuous years or more.

Now employees in the labor class get the same protections as non-competitive class employees. Thus, it applies to laborers with at least 5 years of continuous service. The exclusion for confidential or policy-influencing positions also applies, but it is unlikely that many laborers would have those designations.

Waiver of Section 75 Protections

Section 75 establishes default due process requirements for disciplining covered employees. However, employees can waive the protections of Section 75,

Many collective bargaining agreements between unions and public employers establish grievance and arbitration procedures in lieu of those provided by Section 75. Many labor class employees were already subject to these alternative procedures. For them, the amendment will not have any direct impact.

Click here for more on the detailed requirements of Civil Service Law Section 75.

What This Means for Public Employers with Laborers

The change to the law took effect immediately upon Governor Cuomo’s signing. Therefore, any labor class employees with 5 years of continuous service now have job protection–either through Section 75 or a pre-existing contractual alternative.

Governmental entities in New York (including municipalities and school districts) whose laborers previously had no contractual job protection now face a different reality. They must follow Section 75 before disciplining qualifying employees in the labor class.

To receive future updates on laws affecting New York workplaces, click here to sign up for our email newsletter.

April 19, 2018

New York Protects Public Sector Unions

Through the State Budget bill signed by Governor Andrew Cuomo on April 12, 2018, New York has new legal protections for unions that represent government employees. These measures seek to protect public sector unions from the potential implications of the Supreme Court’s upcoming decision in the case of Janus v. AFSCME. Many expect that decision to allow public employees to refuse to financially support the unions that represent them in collective bargaining.

What’s at Stake in Janus?

I have recently described what Janus may mean for New York’s public sector unions here.

The U.S. Supreme Court heard arguments in the case on February 27, 2018. Its decision will likely come out this spring.

Existing Supreme Court precedent holds that public employees cannot be required to pay for unions’ political activities. However, they can be required to contribute to the union’s actual costs of contract negotiation and administration.

Illinois state employee Mark Janus is asking the Court to change that standard. He wants the Court to rule that, under the First Amendment, public employees cannot be required to fund unions against their will. This outcome could threaten public sector unions’ ability to raise sufficient funds to perform their day-to-day operations.

New York Legislative Measures

Without waiting for the decision in Janus, the New York State Legislature has enacted protections seeking to give public sector unions greater leverage over employees who might consider opting out of union membership.

Modification of Dues Deduction Requirements

Before these amendments, New York’s Civil Service Law required public employers to deduct union dues from employees’ paychecks “upon presentation of dues deduction authorization cards signed by individual employees.”

The Legislature has added considerable additional language to that requirement addressing time limitations, forms and means of authorizations, and employee revocation.

The law now requires employers to begin union dues deductions within 30 days of receiving proof of a signed authorization. The employer must then continue to make the deduction until either the employee revokes membership in the union “in writing in accordance with the terms of the signed authorization” or ends employment. Previously, the law permitted an employee to end the dues deductions by submitting written notice of withdrawal of the dues authorization.

Notably, the law now also provides that if an employee leaves and returns to employment within a year, then their prior authorization will remain in effect.

Notification of New Employees

A new provision of the Civil Service Law requires public employers to notify the applicable union within 30 days of hiring, rehiring, promoting, or transferring an employee into a bargaining unit.

The notice to the union must include the employee’s:

name;
address;
job title;
employing agency;
department or other operating unit; and
work location.

This information will enable the union to contact the employee for purposes of encouraging union membership and signing of a dues deduction authorization card.

Meeting with New Employees

In case providing the employee’s information to the union isn’t enough, the law now actually compels public employers to make their employees available, on work time, to meet with union representatives. Employers must allow this within 30 days of providing the information above.

The union representing the employee’s bargaining unit may meet with the employee “for a reasonable amount of time … without charge to leave credits.” The union must arrange the meeting time with the employer.

Duty of Fair Representation

Before this legislation, public sector unions owed a general “duty of fair representation” to all employees in the bargaining unit they represent, including employees who chose not to join the union. Now the law allows a union to “limit[] its services to and representation of non-members.” This limits the duty of fair representation to “the negotiation or enforcement of the terms of an agreement with the public employer.”

In more detail, the law explains this to mean that public sector unions do not have to represent non-members:

during questioning by the employer;
in statutory or administrative proceedings or to enforce statutory or regulatory rights; or
in any stage of a grievance, arbitration, or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to proceed without the employee organization and be represented by his or her own advocate.

The law also expressly permits public sector unions to limit legal, economic, or job-related services or benefits beyond those provided in the collective bargaining agreement only to union members.

Impact on Public Sector Unions

It is hard to guess how these preemptive measures will hold up following the Supreme Court’s ruling in Janus. In addition to the above substantive amendments, the Legislature included two sections in the law recognizing the potential that some of these requirements could be found unconstitutional. If so, the law provides, the remainder of the legal requirements would remain in effect.

But the intent of the legislation is clear. It seeks to protect New York’s public sector unions against federal limitations. To that end, Governor Cuomo announced, upon signing the legislation:

“Too often, and at the hands of this federal administration, we are seeing the labor movement going backwards. In New York it is a different story, and our efforts to protect working men and women are moving labor forward, making the workplace fairer and more just than ever before. This action sends a clear message to the rest of the nation: we will not let this federal administration silence New York’s working class, we will support every voice in every community and in every industry, and we will do everything in our power to protect the right to achieve the American Dream.”

Impact on Public Employers

Without even knowing what further impact the Janus decision will have, it is too early to anticipate the ultimate impact on employers. In many cases, these changes probably will not have an immediate effect on existing bargaining units. Many employees will likely continue to support their unions, who will continue to represent them and others in their bargaining unit.

Some employers would probably be happy if unions faded out of their workplaces. And this may happen over time. But other employers would regret seeing one union leave to be replaced by an unfamiliar one.

If nothing else, the release from the duty of fair representation, if legally upheld, may benefit employers as well as unions. It could result in fewer grievances and less litigation where unions decline to fight on behalf of non-member employees. On the other hand, these employees may still be able to arbitrate or litigate on their own, with or without legal representation.

December 5, 2017

What is PERB?

The New York Public Employment Relations Board (PERB) administers the Taylor Law, which extends collective bargaining rights to public employees in the state. The Taylor Law created PERB with its enactment in 1967.

Since July 2010, PERB has also administered the New York State Employment Relations Act, which governs collective bargaining for private employers in New York over which the National Labor Relations Board (NLRB) does not exercise jurisdiction. However, because the NLRB’s jurisdiction over private employers is broad, the overwhelming majority of PERB’s work still involves only public (governmental) employers.

PERB is similar to the NLRB in that it operates primarily through adjudication. Whereas the federal Labor Board processes “unfair labor practice” charges, PERB handles “improper practice” charges. Both entities oversee representation cases–determinations of which labor organization, if any, represents a particular group of employees.

PERB Board

The governor appoints the 3 members of the PERB Board, with the advice and consent of the State senate. No more than 2 of the board members can be from the same political party. Board members hold 6-year terms, with the governor appointing one member to serve as the chair.

The Board and most of the agency’s staff operate out of Albany. There are also regional offices in Brooklyn and Buffalo.

John Wirenius chairs the Board. Robert Hite is another board member. The third seat is vacant.

PERB Representation Procedures

Under the Taylor Law, public employers in New York can voluntarily recognize a labor organization as the bargaining representative of certain employees.

Where the employer has not voluntarily recognized a union to represent select employees, the union can file a petition with PERB seeking certification as the employees’ exclusive bargaining representative. The union must also file a “showing of interest” by at least 30 percent of the employees in the proposed bargaining unit.

The employer, and other interested parties (e.g., other union(s) claiming majority support), have 10 days to file a response to the representation petition. Then PERB investigates the facts surrounding the petition to determine whether there is majority support for the union representation. If necessary, there may be a hearing before an administrative law judge as part of its inquiry.

Unlike in the NLRB representation process, PERB need not hold an election before determining the question of representation. Sometimes, however, more than one union seeks representation of the same employees. Or there is insufficient evidence of support for certification without an election. Then PERB will hold an election to determine the representation status.

There are also procedures for decertification and unit clarification.

Role in Collective Bargaining

PERB oversees various procedures related to impasse resolution in collective bargaining. In other words, it gets involved when New York public employers and the unions representing their employees can’t agree on terms of employment.

The Office of Conciliation provides services related to mediation, fact-finding, and interest arbitration.

Either party to the negotiation of a labor agreement may file a declaration of impasse when it believes the parties cannot make further progress on their own. If the Director of Conciliation finds the declaration sufficient, a mediator will be appointed.

If the mediation process does not resolve the negotiations, then the matter will proceed either to fact-finding or interest arbitration. Fact-finding applies to most negotiations involving public labor negotiations in New York. However, interest arbitration prominently applies to police office and fire-fighter labor contracts.

Improper Practice Charges

When public sector unions or employers feel that their rights under the Taylor Law have been violated, they may file an improper practice (IP) charge with PERB.

Once an agency director initially reviews the IP charge and forwards it to the non-filing party, the respondent party must file an answer to the charge (among other possible responses).

Next, PERB typically schedules a conference between the parties with an Administrative Law Judge. If the conference does not resolve the dispute, then the case may proceed to a hearing before an ALJ.

If either party does not agree with the ALJ’s decision following a hearing, they may appeal to the PERB Board.

Know Before You Go

The New York Public Employment Relations Board needn’t be a scary place. Still, most employers don’t want to end up there. Yes, sometimes employers initiate PERB cases. But unions file most of them.

The best way to avoid PERB is to make sure you are following the Taylor Law. But, even then, negotiation impasse may be unavoidable at some point.

Especially if you don’t have experience with PERB and its procedures, you shouldn’t just go in to a conference or mediation assuming everything will go your way. Usually, it will be best to consult your city/town/village/county/school attorney first. If they don’t have the expertise, then you may need to also speak to a lawyer who regularly handles labor and employment matters for public employers.