Special: PERB & Taylor Law

Overview
Taylor Law Origins
NYC Office of Collective Bargaining (OCB)
Fire & Police (but not NYC)
NYC Fire/Police Union Long Battle for State PERB Rights
The First NYC PERB Award
How PERB Works
Selecting Arbitrators
The Scoping Process
Arbitration-How Long Can it Take?
Past and Present

1. Overview
This was written with the intention of putting the primary elements of the NYS Taylor Law into every-day terms. It is a brief summary of certain sections of the Taylor Law, how it came into existence, the distinctions among some of its subcomponents/subchapters (PERB, OCB, mediation, binding arbitration, scoping, etc.) and how all this affects your union's ability to negotiate a contract on behalf of its membership.

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2. Taylor Law Origins
The Taylor Law was enacted through NYS Legislation in the late 60's with the objective of creating harmonious and cooperative relationships between government and its employees--and to protect the public by assuring at all times, the orderly and uninterrupted operations and functions of government. Prior to the Taylor Law, there were many years of turmoil, strife, and controversy in the areas of organization and collective bargaining in the public sector. In 1966, employees of the New York City Transit Authority began a strike which involved injunctive and contempt proceedings against the union and its officials, and resulted in the jailing of the union's president for contempt. The strike resulted in substantial hardships to commuters in the metropolitan area. It also served to focus attention on the basic conflict in labor relations of government employees and the tension between preventing strikes that disrupt government operations and the right of all employees to share in the process which determines the conditions of their work.

After formal resolution of the transit strike, there was substantial interest in creating some different type of process which would promote the harmony sought by the State. Governor Rockefeller established a committee which would make "Legislative Proposals" for protecting the public against disruption of vital public services by illegal strikes, while at the same time protecting the rights of public employees. Professor George W. Taylor, of the University of Pennsylvania, was chairman of the committee. The Taylor report was issued 45 days after the formation of this committee. On April 21, 1967, the Conlin-Waglin Act, the law then in existence to address these issues (which also prohibited strikes), was repealed. It was replaced by the Taylor Law, which was based on Professor Taylor's Committee report. The Taylor Law mandated the following:

• It continued the prohibition against strikes (Section 210, subdivision 1, Section 211);
  
  
• granted public employees the rights of organization and representation (Section 203 and 204);
  
  
• authorized state and local governments to recognize, negotiate with and enter into written agreements with pubic employee organizations (Section 204, 204-e);
  
  
• created the Public Employment Relations Board (PERB) to assist in resolving disputes (Section 205) which arose under the law. PERB was delegated the authority to establish procedures for determining representation status and to resolve disputes concerning representation status as well as to assist in collective bargaining and to generally exercise appellate jurisdiction overall local procedures and rules promulgated under the Taylor Law; and
  
  
• created 'Mini-PERBs': Section 206 and 212 of the Taylor Law gave the option to every local government to establish a governing board and procedures (known as 'mini-PERBs') which would not be inconsistent with the provisions of the PERB and which would perform the same functions as PERB. New York City took advantage of this procedure by enacting legislation which resulted in the creation of the Office of Collective Bargaining (OCB), a 'mini-PERB'.

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3. NYC Office of Collective Bargaining (OCB)
The OCB was created by the New York City Collective Bargaining Law, Chapter 54 of the Administrative Code of the City of New York. The law in substance is quite similar, though not identical, to the Taylor Law, in that it controls union representation and certification and matters concerning the collective bargaining process such as the duty to bargain, arbitration of grievances, and the resolution of contract impasses. It followed the same procedures for resolution of contract impasses and sanctions by the Taylor Law as previously enumerated. This particular law was drafted in 1967 and was further amended in 1972 and 1978. By the enactment of this law, New York City was removed from the jurisdiction of PERB.

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4. Fire & Police (but not NYC)
In 1974, interest arbitration for police and firefighters was introduced into the Taylor Law. Also, the Court of Appeals, in City of Amsterdam v. Helsby, determined that the legislature could delegate to PERB, "its constitutional authority to regulate the hours of work, compensation, and so on, for policemen and firemen in the limited situation where an impasse occurs. The Court further found that PERB could regulate wages and hours through ad hoc arbitration panels. Civil Service Law Section 209(4), which is the binding arbitration provision of the Taylor Law resolving police and fire contract disputes, has been in effect since 1974. Originally enacted in 1974 for three years as an "experiment", it has been extended every two years thereafter. Every other year, police and fire unions press the Legislature for its extension--and still do today. However, it wasn't until 2002 that NYC fire & police unions won the right to have labor-government conflicts resolved through State PERB, as described in the following paragraphs.

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5. NYC Fire / Police Union Long Battle for State PERB Rights
One result of the creation of NYC's OCB, was that City fire and police contracts, if arbitrated, had to be decided by the OCB, not through state PERB. In the late 1980s and early 1990s, the UFA sought to fairly resolve several contract disputes with the City under the OCB binding arbitration provisions of the Taylor Law. However, the one-sided results of the OCB's scoping and arbitration process left the police and fire unions, in general, with the strong belief that the process was tainted in the City's favor. This was largely fueled because of the belief that local politics played too large a role in the outcome of awards that established pattern situations for all City contracts. Needles to say, this left the fire and police unions with compelling motivation to pursue their contract dispute resolutions through other, more objective, means.

In 1995, the PBA and UFA were able to enact legislation which amended the New York State Civil Service Law, specifically the Taylor Law sections, to permit arbitrations to proceed through state PERB. The Governor, however, sent the bill back to the Legislature for further amendment. This was accomplished in 1996 when the Legislature passed a modified PERB bill. After the Governor, at the urging of the Mayor of NYC, vetoed the bill, the Legislature, for only the second time in 125 years, over-rode his veto and the amendments went into law (Chapter 13 of the Laws of 1996). Soon thereafter, however, Mayor Giuliani challenged the constitutionality of the new law, claiming that it was not in compliance with the 'home rule' requirements of the state constitution, alleging that it was "a special law" which was not "of significant importance to the state generally." To be enacted, a law would require a home rule message (majority affirmative vote) from the New York City Council. In decisions before the Supreme Court, Appellate Division and finally on December 19, 1996, the Court of Appeals, New York State's highest court, the statute was declared unconstitutional because of its status of a "special law" which triggered the need for a home rule message. Undaunted, the UFA & PBA supported a new version in 1998, and after various amendments, it was enacted in spite of the Governor's veto, as the veto was over-ridden by the Legislature. In 2001, New York State's highest court held the amendment constitutional, which was a victory for the PBA and UFA.

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6. The First NYC PERB Award
In the summer of 2002, for the first time in its history, state PERB ruled in binding arbitration on a NYC police contract. The 2000 - 2002 NYC PBA contract was determined by a PERB award. The award resulted in basically the same financial package (10.25% base, 1.5% unit value & .60% MLC health benefits) as the Uniformed Coalition negotiated deals, but the PERB award was for a 24 month period, as compared to the 30 month deal previously negotiated by the Coalition. In other words, the Coalition deal constructively amounted to 6 months of a zero percent raise when compared to the PBA award. After the PBA's PERB award, the UFA rejected the Coalition offer. With the City facing a strong possibility of a similar PERB decision being awarded to the UFA, if it had chosen that path, the UFA's bargaining position improved significantly. The UFA was able to leverage this possibility in order to negotiate a deal which basically mirrored the PBA award value. As a result, the Annual Percentage Rate for the UFA deal exceeded the Coalition rate and clearly established a new historical pattern that exceeded the Coalition agreement.

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7. How PERB Works

• Mediation: When a public employer and labor union representing a fire department or police department ends its collective negotiating sessions without an agreement, either party may petition the Public Employment Relations Board (PERB) to appoint a mediator who represents the Board to assist the parties in reaching a voluntary resolution of their dispute. Note that mediation is not binding, but it is a necessary step to take prior to pursuing arbitration. If, however, the mediator is unable to effect settlement of the controversy, upon petition of either party, PERB will then refer the dispute to a public arbitration panel.
  
  
• Arbitration: This public arbitration panel consists of one member appointed by the public employer, one member appointed by the employee organization and one public member appointed jointly by both parties. This jointly selected member acts as the chairman of the panel. [Section 209(4)(c)(i)]. This public arbitration panel then holds hearings on all matters related to the dispute and the parties present either oral or written evidence, statement of facts, supporting witnesses and other evidence and arguments in support of their respective positions. [Section 209(4)(c)(iii)]. At the conclusion of the hearings, matters presented to the public arbitration panel for its determination are decided by a majority vote of the members. [Section 209(4)(c)(iv)]. The panel, prior to any vote on the issues in the dispute, often seeks to have the parties reach agreement on specific points. If no agreement can be made, the public arbitration panel then makes a 'just and reasonable' determination of the matters in dispute [Section 209(4)(c)(v)]. In reaching that determination, the panel must base their decision upon the following four criteria:
  
  
• Comparison of the wages, hours and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours and conditions of employment of other employees performing similar services or requiring similar skills under similar working conditions and with other employees generally in public and private employment in comparable communities;
  
  
• The interest and welfare of the public and the financial ability of the public employer to pay (emphasis added);
  
  
• Comparison of peculiarities in regard to other trades or professions, including specifically, (1) hazards of employment; (2) physical qualifications; (3) educational qualifications; (4) mental qualifications; (5) job training and skills;
  
  
• The terms of collective agreements negotiated between the parties in the past providing for compensation and fringe benefits, including, but not limited to, the provisions for salary, insurance and retirement benefits, medical and hospitalization benefits, paid time off and job security.
  

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8. Selecting Arbitrators
Three arbitrators are chosen; each party chooses an arbitrator, and the third 'impartial' is chosen by the striking process. Upon petitioning PERB for a list of arbitrators, each party must designate its own advocate who sits as an arbitrator on the panel. In order to determine who the 'Impartial Arbitrator' is, PERB will send each party a list of nine (9) potential arbitrators. After the parties flip a coin, the loser strikes the name of an arbitrator first, followed by the winner until the one arbitrator remains who is designated as the impartial chairman of the panel. The arbitrators originate from a list of interest arbitrators maintained by the Public Employment Relations Board. Also, many of these names are also utilized by the New York City Office of Collective Bargaining. It is the law and how it works, not the arbitrators, which creates the difference.

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9. The Scoping Process

Once a party files for arbitration, the opposite side has ten (10) working days to challenge the negotiability of the proposals which are to be submitted to the panel because only 'mandatory' subjects of negotiation can be considered by a panel. The word 'scope' is a shortening of the term 'scope of bargaining'. Scope of bargaining is just a term that is used to define what is negotiable and what isn't. In other words, what a mandatory subject is, what a permissive subject is and what a prohibited subject is when bargaining. The following definitions are excerpted from 'Public Labor Safety News':

• Mandatory: Mandatory subjects must be negotiated if either side raises them during the negotiation process. If a past practice concerns a mandatory subject of bargaining, an employer may not make a change in the practice without first bargaining with the labor organization unless the labor organization has waived its right to negotiate over the subject. Mandatory subjects generally include salary issues, hours of work, and many working conditions. When you hear the term "non-mandatory", it means that the item does not fall under this definition.
  
  
• Permissive: Permissive subjects need not be negotiated by either party, but can be negotiated if both parties voluntarily choose to do so. An employer is free to make changes in past practices affecting permissive subjects of bargaining without first bargaining with a labor organization. Permissive subjects are analogous to areas that are generally thought to be managerial rights.
  
  
• Prohibited: Prohibited subjects are excluded from bargaining. A subject is often prohibited if it is "preempted" by another law covering the subject (e.g., a state law might preempt bargaining over the entire subject of pension benefits). A more directly related example would be the NYC firefighter workchart, which is written into the law, and therefore cannot be changed by PERB.
  

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10. Arbitration-How Long Can it Take?
The length of the process is subject to each proceeding and the availability of the parties, which include their partisan arbitrators, the impartial chairmen, their respective attorneys and the availability of witnesses. Generally speaking, desirable arbitrators are busy, so it is difficult to find short blocks of time where they are available in close proximity to the filing of the demand for arbitration. What has compounded the process even more is the lack of qualified arbitrators who have the credentials and the temperament to sit as the arbitrator in a substantial negotiation such as in the City and State of New York. However from the time of filing of the declaration of impasse where the mediator is appointed to the ultimate issuance of a final and binding award, the process can take from months to up to one year. For example, the NYC PBA began its PERB mediation process in mid to late Fall of 2001. Amid some labor turmoil, which resulted in the huge August 2002 PBA-UFA Times Square rally, the final arbitration decision was awarded by summer's end 2002.