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Public employees had to strike in order to get the same rights as privatesector employees

- In the late 1950s and 1960s, the unionization of the public sector began to pick upsteam

o NYS got a CB law in 1967 NYS Taylor Law (this is a part of the Civil Service law) This was the result of the Taylor Commission, which studied public sector

striking and CB rights in the state.

Covers all public employees in the state of NY, except NYC employeeso NYC got a CB law in 1967 NYCCBL

Covers city public sector employees- Today, approximately 40% of public sector employees are unionized, as compared to

less than 8% of private sector employees

o In NY, over 90% of public sector employees are unionized- Private employees won collective bargaining rights long before public employees did,

and even today private employees have more rights under labor laws than do

government workers.

- The laws governing public sector employment differ from those governing the privatesector in three significant ways:

o Some laws and legal doctrines which are very important in the public sectorsimply do not apply to the private sector

Civil service laws Often set basic entrance requirements for jobs and require some

form of just cause for discharge

Teacher tenure laws Constitutional rulesthe govt acting as an employer is state action

Public employees have certain rights under the First and FourthAmendment

o Labor law rules governing the relations of unions and employers is especiallyimportant due to the high union density in the public sector.

More than 4x the rate in the private sectoro Some employment laws have special rules that apply only to the public sector

and not the private sector. While private sector labor law is set by one of two

federal statutes, public sector law is mostly state and local law, and it varies

dramatically among states.

FLSA rules permitting the award of compensatory time for overtime work


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CHAPTER 4: COLLECTIVE REPRESENTATION IN THE PUBLIC SECTOR

A.ABRIEF HISTORY OF PUBLIC SECTOR COLLECTIVE BARGAINING

- Public workers did not begin to get the formal legal right to bargain collectively or inmost cases even the right to form unions until the 1960s

o Boston strike was a major blowo Judges that made the law until the early 1960s endorsed rules regarding state

structure and sovereignty, which led to considerable judicial deference to local

public government bodies

- Public sector unions have still not won collective bargaining rights on a national scaleo A minority of states still do not grant any public employees the right to bargain,

and many others provide such rights to a few discrete categories of employees

(police, fire, and/or teacher)

1. PUBLIC SECTOR UNIONISM PRIOR TO 1960- 1830: skilled craft workers at naval shipyards organized

o 1836: strike lasting several weeks resulted in President Jackson agreeing tostrikers demand for a work day limited to ten hours

- 1912: customs inspectors organized- AFL chartered:

o 1916: the American Federation of Teachers (AFT)o 1917 the International Association of Fire Fighters (IAFF)o 1917: the National Federation of Federal Employees as a union for bringing

federal government workers under the AFLs umbrella

- Boston Police Officerso Stagnant salaries; long shifts; required to stay overnight in police stations

marked by unhealthy and decrepit conditions

o Most Boston POs belonged to the Boston Social Club, a fraternal organizationfounded by the former Boston police commissioner. POs used the organization

to voice their concerns, but they had no success.

o Social Club applied to AFL for a charter, resulting in the Boston PolicemansUnion (1919)

o Boston police commissioner responded by prohibiting membership in theorganization because it would cause divided loyalty

Sept. 1919, three quarters of the force went on strike in protest of thepolice commissioners suspension of 19 officers for membership in theunion. The commissioner responded by firing all of the strikers.

o Looting/rioting ensued and the State Guard was mobilized to restore orderunder new replacements were recruited. No strikers returned to their jobs.

- As a result of the Boston example, many other jurisdictions barred police officers fromorganizing unions and many AFL-chartered police and firefighter unions have up their

charters.

- 1930s-1960s: Public sector unions used various tactics to represent their members:


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o Engaged in politics, supporting sympathetic candidates and lobbying for laws andregulations

o Represented workers in civil service hearings and under other lawso Provided training, information, and other resources for their memberso Participated in informal bargaining, which sometimes led to agreements with

employers- Courts in this era routinely held that public employers in the US were free to forbid their

employees from joining unions.

o This was often done by requiring employees to sign yellow dog contracts:contracts in which the employee promised not to be a member of a union while

employed.

Yellow Dog Contracts: AFSCME Local 201 v. City of Muskegon (1963)

- Facts: Chief of police adopted a rule prohibiting Muskegon police officers from joininglabor unions. A resolution proposing the new rule stated that officers needed to be

neutral, a requirement that was threatened by union membership. Officers were

required to disassociate within 30 days. Failure to comply would result in immediate

dismissal. POs sought injunction against the enforcement of the commissions action

and the rule adopted by the chief of police.

- Procedural Posture: POs argued that the new rule was ambiguous in its use of thephrase federation and violated rights protected by state and federal constitutions.

Trial court agreed. Police department appealed.

- Issue: whether the city may exercise over the members of its police department theright of control asserted by the rule in question

- Holding: yes- Reasoning:

o There is no provision in either the State of Federal Constitution, which gives toindividuals the rights to be employed in government service or the right to

continue therein.

POs are subject to the authority of the municipality to manage its localaffairs and to regulate the departments of the municipal govt

Class Notes: City of Muskegon

- Yellow Dog Contractso Reason for judicial support of yellow dog contracts: judges falsely construed the

term union to exclude organizations of workers performing waged labor for

the government. Judges adhered to the private sector image of unions, ignoringthe presence of public sector unions that do not formally bargain or strike and

fail to see their different nature.

o Norris-LaGuardia Act outlawed Yellow Dog contracts in the private sector in 1932- Should PO be permitted to join unions?

o Turns on the job duties of the employees want POs to be neutral.o Cant allow them to bargain collectively because we cant allow POs to strike.o No divided loyalty


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2. PUBLIC SECTOR UNIONISM AFTER 1960

- During the 1960s, public sector employment expanded greatly because:o The demographics of the population changed. Baby boomers became old

enough for school/college, resulting in the expansion of public school districts,

community college systems, and state universities. People were also living

longer. Since both age groups were expanding, so too were govt serviceso War on poverty led to increased funding of public services in health, education,

and social services.

o Many of the new public sector employees were young people, women, andminorities who were distrustful of authority and willing to organize.

- 1957: Metropolitan Transit Authority Act organized the LA MTA and gave employeesrights to form unions and bargain collectively

- 1959: California enacted the Firefighter Act, which gave firefighters limited rights toorganize and present grievances and recommendations concerning wages/working

conditions

- 1959: Municipal Employee Relations Act (Wisconsin) gave employees of localgovernments rights to organize and bargain collectively and prohibited employer and

union interference with those rights.

- 1962: federal government employees gained the right to bargain collectively- In the 1960s, states also began passing laws that allowed public sector bargaining and

created specific mechanisms to resolve bargaining impasses that did not involve striking

- Late 1960s, courts finally accepted the argument that the First Amendment of theConstitution prevented a public employer from firing or otherwise discriminating against

a public employee because of membership in or support of a union.

o Thus, while some public employees are still without a legal right to bargaincollectively, all have a constitutional right to form unions.

3. PUBLIC SECTOR EMPLOYEES TODAY

- Unionization is higher among public sector workers than private sector workers- Public sector workers have characteristics that make them less likely to be union

members than private sector workers:

o Public sector workers are more likely to be women, nonwhite, older, moreeducated, white collar or professional

- It is posited that public employees may be more open to unionization because they viewtheir managements as less opposed to unionization than do private sector employees

School Bus Driver Strike- First question: who or what is the employer?

o The school bus drivers are not city employees They are employees of private bus companies that have contracts with

the city

o The union, which represents the bus drivers, has a contract with the buscompanies, which are private employers.

This contractual relationship is governed by the NLRA


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- What is in dispute?o Job security and Wages

When the current contracts expire, the City wants to send contracts outfor bids. They want school bus contracts that will be less expensive to the

City. They want to have competitive bids to come in that offer services at

lower prices. The Union wants a commitment that these new contracts will

contain job security for current bus drivers/monitors. They want

assurance from the NYC Department of Education that whatever

new contracts are negotiated that those contracts will provide job

security (Employee Protection Provisions EPPs) to existing

employees.

o The City is saying that EPPs are not legal. Union says thatthis is a mischaracterization of the Court of Appeals

decision

-If the school bus drivers go on strike, is that a lawful strike? Can the mayor go into courtand enjoin this strike?

o Corporation Counsel cannot enjoin this strike because the bus drivers are notpublic employees.

o It is probably a lawful strike under the NLRA, over which the City has nojurisdiction

Pick a state that will be area of expertise in that states public sector labor law. Public sector CB

law (unionization law).

- Take the Taylor Law questions and the NLRA questions and for your state do thestatutory analysis.

- Submit by next Tuesday/Wednesday- Branti


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CHAPTER 2: CONSTITUTIONAL RIGHTS OF PUBLIC EMPLOYEES

- Because the actions of public employers are by definition governmental actions, publicemployees enjoy a measure of protection under federal and state constitutions which is

generally not available to private employees.

- The development of constitutional rights in the workplace has developed first andforemost in the public sector.

o However, it is often said that private sector employees check their constitutionalrights at the door of the private sector workplace.

A. The Demise of the Privilege-Right Distinction

- One important difference between public and private employment is that when a publicemployer takes some action with respect to its employees, that action is state action.

o Thus the state action requirement for application of federal (and most state)constitutional protection is obviously satisfied- Before the 1960s, however, the legal consequences of this proposition were severely

limitedCourts held that because public employment is a privilege rather than a

right, public employees may be required to relinquish their constitutional rights as

citizens in order to obtain or maintain employment

o This was called into question in Garrity v. New Jersey

Garrity v. New Jersey (1967)

- Facts: POs accused of fixing traffic tickets, made incriminating statements after beingwarned that invocation of this privilege against self-incrimination would lead to

dismissal, and these statements were subsequently used to convict them of conspiracy

to obstruct administration of the traffic laws. POs were given choice to either forfeit

their jobs or to incriminate themselves.

- Issue: whether a State, contrary to the requirement of the 14A, can use the threat ofdischarge to secure incriminating evidence against an employee

- Holding: no; 14A prohibits use in subsequent criminal proceedings of statementsobtained under threat of removal from office

Class Notes: Garrity- Holmes:

o Public employee may have constitutional right to talk politics, but that samepublic employee has no constitutional right to be a police officer

Public employment is a privilege, not a right Employer is extending a privilege to employee to hold public

employment


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o Why does the PO have a constitutional right? Role of sovereign; role of govt high calling As citizens, they have constitutional rights, those rights dont translate to

the workplace. It should be an honor/privilege to work for the govt, not

a right.

o Disagreed with by Justice Douglas in Garrityopinion- POs were required to testifying, regardless of whether what they testified as to would

incriminate them. Here, they had to testify as to fixing tickets.

o If they did not testify, they would be fired.- Just because POs are public employees, they arent subject to watered down

constitutional rights.

- 14A protects against state actors no state shall make or enforce any law abridgingrights or deprive people of DP or EP of law

o In this case, state is the actor. Thus, constitutional rights cannot be deniedaccording to the 14A.

- Why would the state need the testimony of POs?o Job duties of POs include providing testimony at criminal matters

- Balancing Test:o State Interest

State would say that these POs are hired to protect life/property in thestate. In addition, they have to be prepared to testify in criminal matters.

State has an interest.o PO Interest

Constitutional rights 5A right against self-incrimination- How does Justice Douglas come out on this issue?

o POs would have to be granted immunity; cant give up their constitutional rightagainst self-incrimination

B. Freedom of Speech

- In Pickering, the SC held that the 1A precluded dismissal of a public school teacher forwriting a letter to a newspaper criticizing the school boards handling of a revenue

measure and its allocation of funds between educational and athletic programs.

o In these circumstances we conclude that the interest of the schooladministration in limiting teachers' opportunities to contribute to public debate

is not significantly greater than its interest in limiting a similar contribution byany member of the general public

- In Givhan v. Western Line Consolidated School District, the SC applied the Pickeringprinciple to a teachers dismissal for statements criticizing the schools allegedly

discriminatory policies in a series ofprivate encounters with a school principal

o The SC held that the teachers speech did not lose its 1A protection merelybecause it was uttered privately to the employer instead of to the public at large.


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- Must always look at the job dutiesRankino Where clerical employee of police department said that they hope the next

assassination attempt on Reagan were successful, protected speech

Job duties did not include the protection of presidence clerical work

Connick v. Myers (1983)

Facts:

- Myers was an ADA in New Orleans for 5 years for Connick, the DA- 1980: Myers transferred to prosecute cases in a different section; Myers opposed the

proposed transfer (worried about conflict of interest) and expressed her view to several

of her supervisors, including Connick

- Myers informed Waldon, a First ADA, that she would do some research regarding thetransfer

o Myers prepared a questionnaire soliciting the views of her fellow staff membersconcerning office transfer policy, office morale, the need for a grievance

committee, the level of confidence in supervisors, and whether employees felt

pressured to work in political campaigns

- Connick learned of the survey; Connick told Myers that she was being terminatedbecause of her refusal to accept the transfer. She was also told that the distribution of

the survey was considered an act of insubordination

- Myers filed suit, alleging that her employment was wrongfully terminated because shehad exercised her constitutionally protected right of free speech

Rule: when employee expression cannot be fairly considered as relating to any matter of

political, social, or other concern to the community, government officials should enjoy wide

latitude in managing their offices, without intrusive oversight by the judiciary in the name of

the First AmendmentArguments:

- ADA: how the DA office is run is a matter of public concern because it is funded bytaxpayer dollars and could impact the efficiency of the criminal justice system

- DA: cant have insurrection in officeAnalysis:

- Refers to Pickering: task is to seek a balance between the interests of the employee, asa citizen, in commenting upon matters of public concern and the interest of the State, as

an employer, in promoting the efficiency of the public services it performs through its

employees

oNo balancing test is required at the outset of this case because the survey wasconcerning only internal office matters and that such speech is not upon a

matter of public concern

- Whether an employees speech addresses a matter of public concern must bedetermined by the content, form, and context of a given statement, as revealed by the

whole record

- Myers did not seek to inform the public that the DAs Office was not discharging itsgovernmental responsibilities in the investigation and prosecution of criminal cases; nor


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did Myers seek to bring to light actual or potential wrongdoing or breach of public trust

on the part of the DA this was a personal grievance

- One question in the survey, the one regarding whether ADA felt pressured to work inpolitical campaigns, did touch upon a matter of public concern impact right to free

speech

Dissent:- Would hold that the questionnaire addressed matters of public concern because it

discussed subjects that could be reasonably expected to be of interest to persons

seeking to develop informed opinions about how the DA, an elected official charged

with managing a vital governmental agency, discharges his responsibilities

Class Notes: Connick

- Pickering: Balancing Testo Employees right vs. Employers right

Teachers right of Free Speech vs. BOEs right to promote efficiency in publiceducation

BOE argued that the public school teacher, as an insider, hascredibility in the eyes of taxpayers. The taxpayers vote on the

schools tax proposals. BOE argued that this was going to be the ruin

of taxpayer willingness to fund athletic programs they will believe

their taxes are being used frivolously. This, in turn, will hinder the

efficiency of the public education system.

Teacher argues that he has the right as a private system to be criticalof matters of public concern, he should not lose that right as a public

employee.

If it is a matter of public concern that the employee is commenting on, thepublic concern takes precedence over the employers interests because the

employee has the right as a citizen to comment on these issues.

- If same questionnaire was circulated at Legal Aid, what result?o Protected - they are engaging in protected activity under the NLRA

This is true whether they are unionized or not Section 7 right

Garcetti, et al. v. Ceballos (2006)

Facts:

- Ceballos, an employee of the LA DAs office since 1989, found that a warrant affiantmisrepresented facts in a search warrant affidavit.

o Ceballos notified the attorneys prosecuting the case stemming from that arrestand all agreed that the affidavit was questionable, but the D.A.'s office refused

to dismiss the case. Ceballos testified at the trial.

- Ceballos alleged that D.A.s in the office retaliated against him for his cooperation withthe defense, which he argued was protected by the First Amendment.

o Reassigned position; transferred to another courthouse; denied promotionHolding: when public employees make statements pursuant to their official duties, the


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employees are not speaking as citizens for First Amendment purposes, and the Constitution

does not insulate their communications from employer discipline

Analysis:

- So long as employees are speaking as citizens about matters of public concern, theymust face only those speech restrictions that are necessary for their employers to

operate efficiently and effectively- Ceballos wrote his disposition memo because that is part of what he, as a calendar

deputy, was employed to do

- Employers have heightened interests in controlling speech made by an employee inhis/her professional capacity

o Supervisors must ensure that their employees official communications areaccurate, demonstrate sound judgment, and promote the employers mission

Displacement of managerial discretion by judicial supervision is notsupported by precedent

Dissent:

- Whistleblowers have the best knowledge- The nature of the information that ADAs may be discussing may be so significant that it

should be protected, even if it were part of their official duties

- Under Brady, lawyers have a professional ethical responsibility to turn over anyexculpatory evidence

Class Notes: Garcetti

- Investigating the situation, defense counsel found that there were misrepresentationsmade to the judge by the prosecutors/police in order to get search warrant

o Ceballos was called by the defense at trial, to account his procedures for bringingattention to this issue. On the witness stand, he states all the ways he tried tohighlight the misrepresentations.

- Was Ceballos testifying on behalf of defense counsel protected speech or not?o Was he speaking as to a personal grievance or a public concern?

He was speaking in his capacity as en employee of the office rather thanas a citizen.

- Dissent: this is a lawyer, who has an ethical responsibility under the canons of ethicsthat if he sees something that is being done that is unlawful, he has a responsibility to

speak up. Otherwise, he may be disciplined by a committee.

C. Freedom of Association and Political Activity

- All citizens have a right to freedom of association arising from the protection of libertyby the DPC of the 14A and from the 1As protection of freedom of speech, assembly and

religion.

- SC struck down requirements that the employees swear an oath regarding their politicalaffiliations and disclose organizational memberships as a condition of employment.

- Right to freedom of association also protects public employees who want to join unions


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The Hatch Act Cases

- Originally enacted in 1939, the Hatch Act provides that a federal employee may not:o Use his official authority/influence for the purpose of interfering with or

affecting the result of an election

o Run for the nomination or as a candidate for election to a partisan political- Also imposes limits on soliciting campaign contributions and engaging in political activity

while on duty

- Free speech claims of the public employees is outweighed by three governmentinterests:

o Insuring that public employees administer the law in accordance with the will ofCongress, rather than the will of a political party

o Preventing the use of government workers to build a power, invincible, andperhaps corrupt political machine

o Insuring that government employees are free from pressure to vote in a certainway or to perform political chores in order to curry favor with their supervisors

rather than to act out of their own belief

The Patronage Cases

- In Elrod, the SC considered the 1A constitutional issues presented when the newlyelected Democratic Sheriff of Cook County, IL, upon taking office, discharged several

employees process servers, a bailiff, and a security guard because they were

Republicans. Two reasons for holding that discharges were prohibited under 1A/14A:

o Impact of a political patronage system on freedom of belief/association Pledge allegiance to Democratic Party Contribute to the partys candidates

o Imposed an unconstitutional condition on the receipt of a public benefitBranti v. Finkel (1980)

- Facts: Finkel and Tabakman brought action to preserve their positions as assistant publicdefenders in Rockland County.

o Hierarchy Rockland Public Defender is appointed by the County Legislature for a

term of 6 years

Public Defender appoints 9 assistants who serve at his pleasureo 1972: A predominantly Republican County Legislature appoints a Republican

Public Defender Finkel (1971) and Tabakman (1975), both Republicans, were appointed to

assistant public defenders

o 1978: Legislature shifts to predominantly Democrat; at the expiration ofincumbent Republican Public Defender, Legislature appoints Branti, a Democrat,

as Public Defender

After appointment, Branti began terminating assistants, including Finkeland Tabakman.


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The 9 assistant public defenders that were hired/retained were allDemocrats

- Procedure:o Jan. 4 1978: District Court entered temporary restraining order to prevent public

defender from discharging employees

o After hearing evidence, District Court permanently enjoyed employer fromterminating employees solely upon the grounds of their political beliefs

Because Finkel and Tabakman were not involved in the overallpolicymaking and operation of the public defenders office, they could

not be discharged solely based on their political beliefs

They did have discretion over their caseload, but did not act asadvisors or formulate plans for the implementation of the broad

goals of the office

o COA affirmed- Issue: whether the 1A and 14A protect an assistant public defender who is satisfactorily

performing his job from discharge solely because of his political beliefs.- Arguments:

o Branti: Elrodonly applies to the narrow situation where government employees

are coerced into pledging allegiance to a political party that they would

not voluntarily support

Even if party sponsorship is an unconstitutional condition of continuedpublic employment for clerks, deputies, and janitors, it is an acceptable

requirement for an assistant public defender

As long as an employee is not asked to change his political affiliation or tocontribute to or work for the partys candidates (coercion), he can be

dismissed SC rejects this dismissed employees do not need to prove that

they were coerced into changing their political allegiance

- Holding: employee must prove that they were discharged solely for the reason that theywere not affiliated with or sponsored by a particular political party

o If an employees private political beliefs would interfere with the discharge of hispublic duties, his 1A rights may be required to yield to the States vital interest in

maintaining governmental effectiveness and efficiency

- Reasoning:o Continued employment of an assistant public defender cannot properly be

conditioned upon his allegiance to the political party in control of the countygovernment

The primary responsibility of an assistant public defender is to representindividual citizens in controversy with the State

Focus on individual clients, not the public Attorney-client information has no bearing on partisan political concerns

o Mutual trust can exist irrespective of political affiliationo Employees, just because they are public employees, need not check their


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political affiliation at the door.

D. Due Process of Law

Cleveland Board of Education v. Loudermill (1985)

- Facts:o Loudermill was dismissed by letter after neglecting to state on his application

form that he had been previously convicted of a felony. Loudermill argued that

he thought his conviction was for a misdemeanor, not a felony (mistake).

Commission upheld his dismissal. He brought a constitutional challenge against

the dismissal because he didnt have a chance to respond before being

dismissed.

Procedure: District Court dismissed the claim because statute containeddismissal procedures, which were followed thereby affording Loudermill

the DP he was owed.

o Donnelly was a bus mechanic for the Board of Ed. who was fired because hefailed an eye exam. He was offered an opportunity to retake the exam, butrefused. His claim went before the Civil Service Commission and they wanted to

reinstate him (without back-pay).

Procedure: District Court dismissed for failure to state a claim, relying onthe decision in Loudermill. COA Loudermill and Donnelly were deprived

DP because the compelling private interest in retaining employment,

combined with the value of presenting evidence prior to dismissal,

outweighed the added administrative burden of a predetermination

hearing

- Holding:o Both Loudermill and Donnelly had a property interest in their continued

employment. Cannot be deprived of this constitutional guarantee without

procedures.

This came from state constitutionso What pre-termination processes are due?

Notice (with charges) Opportunity to respond (hearing)

Should come before the firing takes placeo Balancing the interests of the parties; issue of fairness

Private interest of individuals in keeping their jobs.It takes time to secure employment and it may bedifficult to get a job because the previous

determination will likely arise in interview. Allow

employee to present his side of the case also helps

to achieve an accurate decision.

Govt interest as employer in expeditiouslyremoving of problematic employees and lessening


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administrative burdens or a providing a pre-

termination hearing (notice, charges, hearing). Do

not want to jeopardize the efficiency of

government operations.

o Employer always has authority to suspend pending investigationo Who should be the hearing officer?

Senior management/HR Outside personnel

Would have to learn about inner-workings of agencyo Full, fair, and timely investigation that includes notice and an opportunity to be

heard (hearing)

Employers do not want employees to walk over to EEOC and file a chargeof discrimination against them

Due process (employee) vs. due diligence (employer)o As protection for employees have grown, it sounds like not having a pre-

termination hearing is risky

Is there a civil service law in Nevada/Nevada constitution that provides Loudermill

provisions?

- Pre-termination hearingo Article 9 of the CBAo http://www.seiunv.org/files/2012/07/SEIU-UMC-CBA_2011-to-2013_Final-2.pdf

- In NY?o Section 75 of NY Civil Service Law

http://www.ongov.net/images/Manual.pdf http://www.cs.ny.gov/pio/publications/summofcsl.pdf

E. Equal Protection

Sexual Orientation:Glover v. Williamsburg Local School District Board of Education (1998)

- Facts: Glovers employment contract was not renewed. Glover says it was not renewedbecause of his sexual orientation. The Board says Glover was dismissed because he

cannot manage classroom (legitimate interest in efficiency of operation). Fellow teacher

received lower evaluations than Glover and had contract renewed (on appeal).o Glover is alleging that his dismissal was not based on his teaching ability; it was

based on sexual orientation.

EP claim brought- Court is borrowing from Title VII analysis to analyze the claim.

o Whether Glover was a victim of intentional discrimination P must establish a prima facie case of employment discrimination
http://www.ongov.net/images/Manual.pdfhttp://www.ongov.net/images/Manual.pdfhttp://www.cs.ny.gov/pio/publications/summofcsl.pdfhttp://www.cs.ny.gov/pio/publications/summofcsl.pdfhttp://www.cs.ny.gov/pio/publications/summofcsl.pdfhttp://www.ongov.net/images/Manual.pdf


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D must show that it had a legitimate, non-discriminatory reason fortaking adverse employment discrimination

P must prove that Ds proffered reasons were pretexto Could not sue under Title VII directly because it does not provide that sexual

orientation is a protected class

- Analysis:o Glover is in a protected class and was qualified. He was replaced by someone

outside of the protected class (other teacher who had her contract renewed).

o Chronology and timing is very important element in proving pretext Was not allowed to bring significant other to events

o Failure of employer to investigate Facts that were later shown to be false were relied upon

o Common problem of first year teachers (including the other teacher) to havedifficulty managing class (not legitimate reason)

o Glover was treated worse than a comparable teacher on probation because ofhis sexual orientation

A Class of One:Enquist v. Oregon Dept of Agriculture (2008)

- Facts: P alleges that she was fired for malicious reasons.- Issue: whether a public employee can state a claim under the EPC by alleging that she

was arbitrarily treated differently from other similarly situated employees, with no

assertion that the different treatment was based on the employees membership in any

particular class.

- Holding: no; class-of-one theory of EP has no place in public employment context- Reasoning:

o At-will employment employment is not constitutionally mandatedo

F. Privacy

Drug Testing:National Treasury Employees Union v. Von Raab

Facts: On the same day as its Skinnerdecision, the SC upheld (5-4) the US Customers Services

drug testing program.

- In May 1986, the Commissioner of Customs announced that drug tests through urinespecimens would be required as a condition for employment for:

o Employees directly involved in drug interdiction or the enforcement of relatedlaws

o Employees authorized to carry firearmso Employees authorized to handle classified material

Issue: Here, as in Skinner, the principal issue was not whether a warrant or probable cause was

required, but whether individualized suspicion was necessary

Holding: Justice Kennedys opinion for the SC held that the program was constitutionally

reasonable even in the absence of individualized suspicion for testing

Analysis:


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- The opinion stressed the strength of the governments interests in ensuring that front-line interdiction personnel and those carrying firearms not themselves be involved with

illegal substances

- Also, employees involved in policing the integrity of the nations borders have adiminished expectation of privacy in respect to the intrusions occasioned by a urine test

- Although there was evidence of drug abuse on the part of Customs Service personnel,the program was justified as a deterrent to such abuse

Dissent: Scalia

- Stressed the absence of a demonstrated drug problem in the service- Distinguished from Skinner

Class Notes:

- Why do border custom agents have to be free of drugs?o The theory is that if they were susceptible to drugs and drug-use, they wouldnt

be able to do their jobs because part of what they do is intercepting drugs from

illegally crossing the border

- Balancing Test:o Federal Govt has an interest in separating these types of customs agents

because if they are susceptible to drugs, they cant do their job effectively

- Where does the constitutional right to privacy in the workplace come from?o 4A and 14A

- OConnor v. Ortega- Conflict of interest with drug-smugglers

E-Mailing: Brown-Criscuolo v. Wolfe (2009)

- Facts: Brown was principal of school and also had responsibility of ensuring that specialeducation laws and procedures were implemented and followed and that if she saw anyviolations of failure to follow proper procedure, she was obligated to bring it to the

attention of the Superintendent. Wolfe was superintendent (Browns supervisor).

Wright was hired and implemented new special education policies, which Brown

believed violated state and federal special education laws. Brown wrote letter to Wolfe

regarding problem and a dispute. Brown went out on medical leave. While out, Wolfe

read her emails, including one to Browns attorney regarding the incident with Wright.

He forwarded it to himself.

o Supervisor said he went into the emails to prevent a lapse in duties while Brownwas out on medical leave.

-Analysis:

o Employee had a reasonable expectation of privacyo Scope of search


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CHAPTER 4: STATUTORY ANAYLSIS OF STATE CB LAWS

Purposes and Policies of NLRA- Eliminate obstructions to interstate commerce (promote interstate commerce)

o New Deal legislation to help get US out of Great Depression- Protect Workers Rights so that to eliminate the strife that results in delay of distribution

of goods/services

- CB law to resolve disputes with employer (encourage practice and procedure of CB asdispute resolution method)

NYS Taylor Law (& Other States) Purposes and Policies

- Promotes harmony between government and employees so that government canprovide the services to the public

- Protect the public and serve the public interesto This is a different intention than the NLRA which was to encourage interstate

commerce and capitalism

- Worker Rights to organize and bargain collectively- Prohibitions against striking because it will interfere with the business of government,

which is to protect the public interest

o The public would be harmed because it would be denied the services it pays forvia taxes

- Legislative intent for dispute resolution procedures in place to maintain harmonybetween government and its employees since they cannot strike

Definitions

- Employero Under NY Taylor Law, all governmental employers (with the exception of NYC

employers that are covered by the NYCCBL) are considered employers for the

purposes of the act

- Employeeso Under NLRA, supervisors are not employees for purposes of the Act

As well as: RR and airline employees (covered by the RLA); independentcontractors; close relatives; domestic employees; agricultural employees

oUnder the Taylor Law, supervisors are employees

However, managers are not protected under the Taylor law What is the distinction between manager and supervisor?

o Managers formulate and promulgate policies and/or havea role in labor relations (negotiate/implement contract)

o Supervisors only implement the policies given to them bymanagers. They are not high enough in the organization to

create policy.


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Why were supervisors The Taylor Commission looked at the extent of unionization

already in the state prior to the Taylor Law. They realized that

supervisors were already involved in bargaining and the

Commission decided they did not want to disrupt this.

Should supervisors be included in the same bargaining unit with theiremployees?

A bargaining unit is a group of employees that are covered bythe same CBA. They are grouped together because they have a

community of interest.

o Communities of interests are a group of employees thatshare commonality in the jobs they do, the wages they

earn, the benefits they are entitled to, and their working

conditions.

A bargaining unit serves the purpose of being an election unit.PERB will determine bargaining units based on community ofinterests.

Supervisors cannot be in the same bargaining unit as employeesthey supervise because it would be a conflict of interest.

o However, it does vary from public employer to publicemployer. Some employers have asked that they remain in

the same BU based on historic organization depends on

the nature of what the work is.

What is a confidential employee? An employee who assists managers in something to do with the

labor relations function.

o Why is this definition narrower than the definition ofmanager?

You dont want to exclude all those employees thatare secretaries or clerical employees that are

assisting managers because those are the people

that need protections of CB because they are not

highly paid with top benefits.

What is at stake when the legislature makes a decision as to whois covered and who is not covered by public sector labor laws?

o Once union becomes EBR, it will represent those employees covered by the CBA- Membership Dues Deduction

o What is a union security provision? It is a provision in a CBA that provides for the unions security through

membership dues.

On the private sector side, union security provisions are negotiated asmandatory subjects of bargaining

o What are the different types of union security provisions?


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Closed Shop: you must be a member of the union to get hired This is the most desirable for unions In 1947, Congress said closed shops were unlawful

Union Shop: hire non-union members, but as a condition of continuedemployment, employee must join union usually within 30 days

SC said that employees cannot be forced to join a union. Can onlybe required to pay their fair share

Agency Shop: as a condition of continued employment, all non-unionmembers have to pay an agency fee (or fair share fee) to the union (but

does not have to join the union)

This is to prevent free riders from not paying their fair share ofthe costs of CB, contract administrator, and negotiating the

bargain

o These fair share payers must receive the benefit of thebargain they get the wages, benefits, pension, etc

negotiated by the uniono Why would people who are paying their fair share just not join the union?

To avoid political activityUnion Security: Abood v. Detroit Board of Education (1977)

- Issue: Whether public employees can be required to abide by a union shop or agencyfee provision; does required membership in a union as a condition of continued

employment in the public sector side violate 1A or 14A rights because it is state action

o Does a fair share provision violate the 1A and 14A rights of employees?- Arguments:

o Pro Fair Share Provision Free Rider employee who gets the benefit of the bargain, but does not

pay his/her fair share towards the cost of CB and contract administration

Undermines the encouragement of CBo Weakens the union because no resources to represent

employees at bargaining table

Internal conflict amongst employeeso Conflict between employees that get the benefit of the

bargain for nothing and those that are paying dues

o Against Fair Share Provision Freedom of Association Employer function is to serve the public interest

- Holding: SC said that there is a duty of fair representation imposed on unions, which isimpeded when they do not get the funding they need from free riders. However, you

have to be able to protect those agency fee payers from using the fair share fee for

political purposes.

o Rebate Procedure in place that permits objectors to file an internal claim withthe union saying they want to know how much of the fair share money is being


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used for political purposes unrelated to CB and conflict negotiation and get a

refund for that amount.

- Analysis:o Court looks first to the private sector

Why is it sound policy to require financial support of a union that is theEBR?

Consistent with congressional intent to minimize industrial strifeo It provides for stability of labor relations and encourages

interstate commerce

What is EBR? EBR only one union can bargain for a group of employees,

known as a bargaining unit

What is the connection of being the EBR and financial support of union? EBR needs resources to fulfill responsibilities of EBR and to

counteract the resources/bargaining power of employer

oNeed to hire experts, negotiators, economists, researchstaff

o Why does the court think it is permissible to take private sector analysis andmove it over to the public sector side?

Stability in labor relations is also important in the public sector Public employees and private sector employees are really no different in

terms of their education, experience, and skill

It is the nature of the employer that is different, not the nature ofthe employees. Employees still need the representation of the

EBR and the EBR still needs the financial support for contract

administration and CB

o Abood Ps (teachers) further argue that in the public sector the cost of CB cannotbe kept separate from political costs. In private sector, you can ask to have fees

not support political campaigns (rebate PACS)

When union lobbies state legislature about increases in the pension forworkers, is that political or CB? Both

Court: the very nature of CB in the public sector is politicalo Most individuals who run public sector are politicianso Union representing public employees must have rebate

procedure to refund to objectors their share of the funds

that would be used for political purposes

Court ducks the question about how to calculatewhat is used for CB purposes and what is used for

political purposes gives that job to the state

public sector labor boards (PERB)

- Rule: Union security constitutional in public sector, as long as there is a rebate systemWith a public employee union, how do you separate out the cost of CB from political costs?


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Exclusive Bargaining Representative (EBR)

- What is the primary way for a union to achieve EBR status?o An election

To achieve EBR status, a union files a petition for representation with thelabor board.

In addition to filing petition, Union must also present a showing of interest that a certain percentage of employees (usually 30%) in a bargaining unit are

interested in having a union represent them for purposes of CB.

o The election is determined by the majority of the employees who actually vote (nota majority of employees eligible to vote in the bargaining unit)

- What does majority status mean?o Employer may not sit down and discuss with any other union but the EBR, or

individual employees, the conditions and terms of employmento Those employees who voted no, lose. The majority will determine whether that

bargaining unit is represented for the purposes of CB or not.

Majority rules those employees that voted no are bound by what themajority decides.

o In the private sector (and some public sector laws), a union may also achieve EBRstatus through voluntary recognition

Employer recognizes union as EBR based on the union coming to theemployer because union has made a showing of majority status (majority of

signed union authorization cards)

Employer can ask for a card checkemployer cant check himselfbecause employer is not entitled to know which employees supportthe union and which do not

o To prevent coercion and discrimination- Mandatory Agency Fee Deduction

o Employee must sign dues authorizationdue checkoff See 208(3)(a)(b) of Taylor law

State employees (a) All other employees (b)

- How is the bargaining unit determination done?o When petition for representation is filed by the union with the board, the

appropriate bargaining unit must be determined

Standard: community of interest to determine which job titles should be inan appropriate bargaining unit

Job Title Job Duties Employee location Hours/Working Conditions Salary


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Benefits http://www.perb.ca.gov/UnitChecklists/PERB862.pdf If the proposed bargaining unit votes to have a union represent it (meaning a

majority of employees voting vote for a union to represent it), the election

unit morphs into a bargaining unit that negotiates CBA

CHAPTER 5: PROTECTING THE RIGHT TO ORGANIZE

- States were slow to enact statutes protecting public employees rights to organize.When they did enact such laws, they looked to the NLRA, which had governed the

private sector since 1935, as a model.

o The NLRA guarantees private sector employees the right to organize andprotects that right with a series of prohibitions on employer and union conduct,

known as ULP.

o A party who believes that an employer or union has committed and ULP files acharge in a regional office of the NLRB.

The staff of the office investigates the charge If NLRB finds reasonable cause to believe that an ULP occurred, a

complaint is issued. This complaint can be prosecuted before an

ALJ, who issues a recommended decision.

The Board must issue the final decision.- Typically, public sector jurisdictions do not have a separate arm for labor board

prosecution of ULP complaints. Instead, they require the charging party to prosecute the

charge before the board.

Weingarten Rights

- This is an employees right to have a union representative present when that employeeis facing discipline; This is not a right of the union unions do not have Weingartenrights

o This right is so important that it is sometimes written on the back of unionmembership cards

- NLRB v. Weingarten Dept Stores (1975)o An employee who worked at Weingarten took some lunch from the lunch area

and didnt pay for it. She was called in for questioning by the supervisor because

it was reported that she did not stop at register and pay for the lunch. When

questioned, the clerk burst into tears and asked for a union representative,

which was denied.

oUnion theorized that this employee has a 7 right to have a union representativepresent because this was a concerted activity asking for union representative

so she would not be there alone.

o SC gave three elements of basic Weingarten rights: An employee is called in for questioning by the employer (investigatory

interview) where a supervisor/manager is questioning an employee

about a particular incident; AND


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Employee has a reasonable beliefthat disciplinary action could resultfrom the investigatory interview (target of investigation); AND

Reasonable is based on context/case-by-case analysis Employee has to ask for union representative

- Subsequent decisions by the NLRB stated that when the union rep comes into theinvestigatory interview, the interview is not like a grievance meeting. In a grievancemeeting, the union is an activeadvocate to act on behalf of the employee. In an

investigatory interview, the union representatives role is more limited than in a

grievance meeting union rep should have a chance in a private area to meet with the

grievant to find out the background. However, rep is an observer who can take notes on

the questioning, but is not there to impede the investigatory interview. Rep is not there

to argue the employees case or be disruptive.

- Sometimes, union propose in CB for Weingarten PLUS, meaning the UNION has the rightto be in the room for an investigatory interview, regardless of whether an employee

asks for a rep or not.

-Generally speaking, non-targets (witnesses) do not have Weingarten rights unless theyare negotiated by union in CBA.

A. The Scope of Protected Activity

NYC Transit Authority v. PERB (2007)

- Facts: a car inspector with NYCTA said some racial slurs after being asked to presentidentification before entering a train yard. NYCTA asked employee for a written

response to the allegation, which he prepared with help form a union rep. NYCTA asked

employee to come to supervisors office to prepare a new response and refused to allow

TWU rep to accompany employee.

o TWU filed an ULP charge alleging NYCTA violated employees Weingarten rights PERB upheld the charge

o NYCTA brought Article 78 proceeding against PERB and TWU Supreme Court dismissed; Appellate Division affirmed

- Issue: whether public employees in NYS have Weingarten rights- Arguments:

o TWU argues that public employees have Weingarten rights similar to privatesector employees 7 rights under the NRA

PERB agreed that public sector employees covered by the Taylor Law had7 rights because the intent was to transfer 7 rights over to the publicsector, including the Weingarten rights

Court disagrees because the 7 language regarding the concertedactivities for mutual aid or protection is missing from the Taylor Law.

- Holding: (reversed) Taylor Law does not give a Weingarten right to NY public employees,which is a right to have a union rep present with the employee at an investigatory


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action). Another PO wrote article criticizing 911 procedures, which was published in

Union newsletter. IA investigation found employee violated OPD rules of conduct and

he was terminated. Union appealed and he was reinstated.

- Issue: whether a pubic employer engages in a prohibited practice under the IndustrialRelations Act by taking disciplinary action against public employees belonging to a labor

organization for statements made and published by those employees- Procedure:

o The Commission of Industrial Relations concluded that disciplinary action takenagainst a PO who authored an article in a Union publication constituted a

prohibited practice. Under NLRA, protection of speech is not protected when

work-related speech constitutes a deliberate or reckless untruth (standard)

In concluding this, CIR relied on a legal standard applied in private sectorlabor relations cases

- Holding: CIR should have applied a different standard to resolve protected speech issuesin public sector employment cases

o Adopted the standard used by the Federal Labor Relations Authority Under this standard, public employees belong to a labor union have the

protected right to engage in conduct and make remarks, including

publishing statements through the media, concerning wages, hours, or

terms/conditions of employment.

However, employees lose the statutory protections if the conduct ofspeech constitutes flagrant misconduct, which is defined as:

Statements or actions that are (1) of an outrageous andinsubordinate nature; (2) compromise the public employers

ability to accomplish its mission; or (3) disrupt discipline

o Balancing test: employees right to engage in protected activity vs. employersright to maintain order/respect for its supervisory staff. Facts to consider:

Place/subject matter of the conduct/speech Whether the employees conduct/speech was impulsive or designed Whether the conduct/speech was provoked by the employers conduct The nature of the intemperate language/conduct

B. Access to Employees

- In Republic Aviation, the SC held that private employers may not prohibit employeesfrom soliciting their coworkers on company property during working time but not during

nonworking time, such as breaks and wash-up time, unless the employer is able to showspecial circumstances that justify the broader prohibition to avoid disruptions to the

business.

o However, employers may bar non-employees from soliciting employees oncompany property, except where the employees are so inaccessible as to be

beyond the reach of reasonable alternative means of communication (Lechmere)


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Service Employees Intl Union Local 73/Palatine Community Consolidated School Dist. No 15

- Facts: union organizer was soliciting bus drivers at bus garage and as they waited forchildren to be released from school.

- Issue: whether SEIU reps had a right to be on employer premises, namely the busgarages and bus routes

- Holding: because the Districts schools and the specific locations where non-employeeorganizing activity occurred were non-public forums, the District acted lawfully by

restricting non-employee union access to its premises

- Reasoning:o In the case of a public employer, the public owns the property.

Non-employee union organizers, like other individuals, are members ofthe public.

The adverse private ownership interest that was present in Lechmere isabsent. Thus, Lechmere does not apply to situations involving public

property.

o Public vs. Non-Public Forum School property that has not been opened to public communication is a

non-public forum

District could prohibit the expression of views which wouldinterfere with the Districts normal operations in a non-public

forum

- Lechmere if configuration of employer premises is such that the union organizerswould not have any other way to speak to employees, then union has a right to come

onto employer premises

- Analysis:o Depends on how the public property is used whether used as public forum or

non-public forum. Here, the bus garage was a transportation area. Therefore, itwas not a place where union organizers would be granted access

o Employer cannot say that people in protected EEO categories cannot come ontheir property

There is a federal policy of anti-discrimination

C. Employer Coercion

THREATS OF REPRISALS

- Opposition to union organization is less prevalent in the public sectoro Private sector managers are unlikely to oppose unionization because of the

absence of a profit motive and because of the perception that union-negotiated

improvements in compensation/benefits would be extended to them

Mount Pleasant Community School District v. PERB (1984)


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- Facts: PERB conducted election, which the organization for Paras, Aides, and Secretarieslost. Organization challenged result because employer posted notice 30 hours before

the election in which it misrepresented material facts and threatened organization

members with loss of employment if they won the union.

- Holding: the notice was nothing more than an isolated non-threatening statement ofthe districts opinion as to what the union would be able to provide in the way of jobsecurity. It did not impede the employees from making a free choice. It did not state

that it would not bargain with the organization, only that it would only bargain with the

organization on mandatory subjects of negotiation.

INTERROGATION

- In the private sector, factors considered in determining whether questioning ofemployees concerning their union sympathies is coercive include the time, place,

personnel involved, information sought, the employers know preference and other

indicia of the surrounding atmosphere

GRANTING OR WITHHOLDING BENEFITS

District 2A Transportation, Technical Warehouse & Service Employees Union v. Canaveral PA

- Facts: PA wanted Commission to issue a declaratory statement as to whether it maycontinue a practice of providing discretionary pay increases in light of representation-

certification petitions filed by two employee organizations

- Holding: PA may lawfully interview and then grant discretional pay raises to affectedemployees which are consistent with its past practices

- Reasoning:o In NLRB v. Exchange Parts, the SC held that a private sector employer violates

the NLRA if it grants a benefit with the intent to influence the outcome of arepresentation election.

D. Employer Domination of a Labor Organization

Oak Grove Educators Assn v. Oak Grove School District (1996)

- Facts: to improve communication with teachers, superintendent asked leaders of unionsto take one day a month to discuss District problems with him. He also began a

roundtable discussion with teachers to take the place of negotiations with the teachers

exclusive bargaining representative.o Although no negotiations took place, negotiable items were discussed at these

roundtable discussions working conditions (air conditioner/ prep periods)

- Holding: the Teachers Forum was an employee organization that was dominated by theDistrict in violation of Education Employees Relations Act. Privileges were afforded to

the Teachers Forum that were not afforded to the Association

o It was established by the Superintendent, who directed the principal of eachschool to provide a rep, appoint one if necessary


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o Meetings were scheduled during working hours for which employees were paid,and a report was made of these meetings at mandatory faculty meetings of the

individual schools

E. Employer Discrimination

- Virtually every public sector labor relations act has an anti-discrimination provisioncomparable to that of the NRLA, which prohibits employer discrimination to discourage

or encourage membership in a union

- Under NLRA to prove discrimination based on union activity, must show:o P engaged in protected union activityo Employer was aware ofemployees union activityo Employer had an anti-union motive (union animus)o Adverse employment action (discharge, demotion, transfer)o Causal connection between the protected activity and employment actiono Pretext can be shown by timing, chronology, unproven allegations

- Originally, NLRB held that if any part of the discharge was because of the employersanti-union motive, it was unlawful discrimination

o However, NLRB modified its position in the Wright-Line line of cases If there is a mixed motive (employer is anti-union but employer had

legitimate, non-discriminatory, business-related reason for adverse

employment action), there would not be unlawful discrimination

Gives a complete/affirmative defense to employersWisconsin Dept of Employment Relations v. WERC (1985)

- Facts: employee received letter from employer informing her of an intent to terminateher trainee position because of her failure to follow established protocol, absence from

her station during scheduled hours, and ignoring instructions from her supervisor. A

hearing was held and it was determined that she was unable to refute the allegations

and was, therefore, terminated. Employee thereafter filed a complaint alleging that she

had been fired because she supported an employees charge of SH.

- ULP complaint brought on behalf of employee by union- in part test requires the union to establish by clear and satisfactory preponderance

of the evidence that:

o Employee had engaged in protected concerted activityo That the employer was aware of said activity and hostile theretoo That the employers action was based at least in part upon said hostility

- Wright-Line standard


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o Employee has the burden of proving that anti-union animus contributed to theemployers decision to discharge the employee.

o If the employer fails to rebut this prima facie showing, he or she can avoid thefinding that the action violated the NLRA by demonstrating as an affirmative

defense that the employee would have been fired even if he or she had not

engaged in the union activity.- Wright-line test is more advantageous to the employer than employee- Application of this standard permits an employer to voice his or her hostility toward

union activists and even fire employees engaging in union activity, as long as he or she

can provide a legitimate reason for terminating employment.

- This court adopts the in part test and reaffirm Muskego-Norwayo Practical difficulty that a discharged employee may have in proving a violation of

SERLA

o Employee not on equal footingo Key element is motivation of employero In duel motive cases, evidence that legitimate reasons contributed to the

employers decision to discharge the employee can be considered by the board

in fashioning an appropriate remedy.

NEGOTIATIONS

- When it comes to certain employee protections/job security protections, if employeescovered by civil service laws are also covered by CB rights, union and employer maynegotiate contractual procedure in lieu of 75 procedures

- Many unions and public employers have decided that they want to negotiate in theirCBAs procedures in lieu of certain statutory procedures afforded under 75

- Decide as a union what kinds of provisions you would want to negotiate in a CBAo Write in disciplinary procedure in lieu of 75 statutory procedures

- Negotiate contractual procedures in lieu of 75 procedures


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GUEST SPEAKER: JULIE M. SHAW, ESQ.

WHY DOES NYS LEGISLATURE ENCOURAGE PUBILIC EMPLOYERS AND PUBLIC UNIONS TO

NEGOTIATE CONTRACTUAL PROVISIONS IN LIEU OF STATUTORY ONES?

- Judicial economyo To keep court system from being cloggedo Disciplinary processes are more efficient/expediento Encourage negotiating parties to negotiate procedures in the contract in lieu of

the statutory ones. This keeps all the crap out of the courts. Hire fewer judges,

court officers, and clerks.

WHAT ARE EMPLOYERS OBJECTIVES IN PREPARING FOR 75 NEGOTIATIONS?

- Minimize cost- Minimize litigation- Prioritize objectives/preparation (and authority)- Labor harmony- Speedy and efficient resolutions- Confidentiality of the process

WHAT ARE UNIONS OBJECTIVES IN PREPARING FOR 75 NEGOTIATIONS?

-Maximize employee rights due process

- Ensure union has a say in grievance/procedures- Duty of fair representation: union and the employees it represents- Labor harmony- Prioritize objectives/preparation (and authority)- Neutrality of decision-maker

o Want decisions to be upheld in court of law


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o Dont want deterioration of relations if hearing officer is appointed fromemployers workforce

- Essence of good-faith bargaining is quid pro quo exchanging different items fordifferent items

o Willingness to engage in trade-offso Hard-bargaining is good faith bargainingthis is important to us and we cant

conclude an agreement without it, but we are willing to trade something for it

- Why appeal right pursuant to Article 75 rather than Article 78?o Under Article 78, the grounds for finding that there is guilt is that there must be

substantial evidence. The penalty must be proportionate to the offense.

Second Department tends to overturn decisions of hearing officers. Finds decisions are not supported by substantial evidence

o Under Article 75, it is much harder to overturn the decision of the hearing officer(much narrower than Article 75)

Public Policy grounds The awards exceeds authority of hearing officer as to remedy Decision was irrational in view of facts

- Article 75: Hearing Officer makes report/recommendation. Appeal route of Article 75 isArticle 78, which is an appeal of an administrative decision.

o Standard for Article 78 is a very important consideration in deciding whether togo with a section 75 procedure or a negotiated procedure.

Final and binding decision of arbitrator is appealable under article 75.- To minimize costs/litigation, you want the appeal route that provides the narrower

grounds choose Article 75. Discourages appeals.

- Rotating basis available in a reasonable timeframeo From list

- Arbitrators can award punitive damages only if it is negotiated foro But, you basically just want to make party whole

- SOL: usually not from discovery- Onerous pre-hearing procedures

o Weingarteno Employee must receive 10 days notice before investigatory interview

Union reps are employees on premises Reasonable by courts is usually 48 hours notice to employee

Memory fresh- Not to discipline before investigation- Duty to bargain must turn over evidence

o Reasonable and necessary to defend charge Balancing Test

Scope How easy it for employer to produce Can employee get on own


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Reasonable and necessary?- Subject to availability of arbitrator when strict timeframes- Issuance of decision running time from receipt of transcript/parties submitting briefs

o 60 days from receipt of closing briefs from parties

Final - 75 Agreements Due by May 14

- No bullet points; full and complete sentences and paragraphs

- Incorporate Julies suggestions

CHAPTER 3: STATUTORY EMPLOYMENT PROTECTIONS

Protections

- FLSA special rules- Civil Service Laws

o Job Securityo What are the purposes of Civil Service Laws?

System of job security so that public employees wouldnt serve at thewhim of politicians

Ended the patronage system; legislative scheme for pubic employment- Teacher Tenure Laws

o Job Security in terms of hiring and not being fired unless there is just cause(notice, opportunity to respond, hearing)

NYS 3020-a Education Law NYS legislature has encouraged school districts to negotiate

contractual procedures in lieu of 3020-a to keep these matters

out of the overburdened state courts

- Whistleblower Protectiono Federal and State

CHAPTER 7: DUTY TO BARGAIN

- States adopt NLRA definition:o Mutual obligation to meet and confer in good faith about mandatory subjects

of bargaining

Good Faith Standard Elements

1. Quid pro quo give and take bargaining rather than take it or leave it bargaining2. Surface vs. Hard bargaining


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a. Hard Bargaining is GF bargaining; insisting you have certain things in theultimately agreement, but there is still a willingness to give/take on other issues

b. Surface Bargaining going through motions without a sincere interest inreaching an agreement

3. Duty to supply information if both union and employer have the same information atthe bargaining table, it will facilitate agreement; it will level the playing field.

a. Duty is usually on the employer because employer comes to the table with moreinformation

b. Union has its own experts at the bargaining table need to make counterproposals

c. Relevant and necessary to the Unions representational function must be givenby employer

4. Continuing duty beyond negotiation of the contract to administration of contract(grievance/arbitration)

5. Unilateral changesa. Unilateral changes should not be made by the employer during the life of the

agreement without first negotiating with the union

6. GF Impasse (dead-lock)a. Parties have a duty to negotiate the mandatory subjects of bargaining to GF

impasse

CHAPTER 8: SCOPE OF BARGAINING

- Define: the scope of bargaining is whether the subjects of bargaining are negotiable- In public sector, scope of negotiability is limited

o If something is not negotiable, it cannot be arbitrableo This is an argument about management rights

Govt takes the position that there are certain subjects that are strictlythe rights of the public employer and cannot be delegable to the CB

process; should not be decided in a democratic way and to do so would

violate public policy; employer is not serving capitalist needs and will

interfere with mission and the services owed to tax payers

- Mandatory: other side must bargain about this subject if the other side wishes to do so;must bargain in GF

-Non-Mandatory: if one side wants to bargain, it is lawful for the other side to refuse tobargain about the subject or to do so briefly

NLRA TAYLOR LAW

Mandatory

(wages)

Mandatory

Permissive Non-Mandatory

Illegal Illegal


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(close shop provisions)

CHAPTER 9: STRIKES

- General Rule: public employees in NYS do not have the right to strikeo Never police, fire, or correctionso Perhaps clerical employees have a limited right to strike

-Should public employees have the right to strike?

o So 1980s! no one debates this anymore Public employee unions have become so successful at political action that

they dont need/want economic action

o Maybe the penalties Loss of 2 days of pay for EACH day you strike (day you strike, plus a

second day as a penalty)

Union penalties fine, jail for union leader, lose checkoff (p. 590)- What is the connection between strike prohibition and impasse procedures?

o State legislatures have said that in exchange for giving up the right to strike,there needs to be economic pressure substituted in its place impasse

procedures

CHAPTER 10: IMPASSE PROCEDURES

Impasse Procedures

- Mediationo Third-party neutral that facilitates negotiationo No binding authority on the parties or over the dispute

- Fact-Findingo Evidentiary hearing; fact-finder makes report and recommendation to

union/employer as to how to settle a dispute based upon the presentation of

employer and union

- Interest Arbitrationo Third-party neutral is issuing a final and binding decision after an evidentiary

hearing on what the terms of the new or successor CBA should be


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In NYS, only police and FF must go to interest arbitration if they cannotsettle at mediation

- How does FF or interest arbitrator make a determination as to what the terms of thesuccessor CBA should be? (criteria)

o Comparability in order or FF to make a determination as to whatconditions/employees, comparability is a big factor

E.g. PO want comparability with LI copso Ability of public employer to pay

CHAPTER 11: CONTRACT ADMINISTRATION

- Grievance and Arbitrationo Rights Arbitration third-party neutral is determining the respective

rights/obligations of the parties under the existing CBA and issues a final and

binding decision

- What are the grounds in NYS for overturning an arbitrators decision? Article 75o Arbitrator exceeded scope of authorityo Arbitrators decision violated public policy

City of Yonkers v. Yonkers Fire Fighters

- Facts: arguing over whether new FFs must make contributions to their pensions orwhether the City makes all the contributions to their pensions. Under CBA, the City of

Yonkers paid everything for the pension contributions to the state pensions of the FFs. A

law was enacted that required newly hired FFs must pay 3% of their contributions andpublic employer would pay the rest.

o Union filed an improper practice charge with PERB; Taylor Law have TriboroughAmendmentsince public employees cant strike, the terms of the predecessor

contract must remain in effect until a successor contract is negotiated.

- Issue: whether pensions for firefighters in NY are a mandatory, non-mandatory, orillegal subject of bargaining; whether the FFs pension contributions is a subject of

bargaining to begin with; whether expired contract was in effect for purposes of the

Retirement Law

o Union argued that it was and that it should go to arbitration because it was aquestion of contract interpretation

PERB agreed that it should go before arbitration and that City must payall contributions for old and new FFs

Supreme Agreed Appellate Reversed COA: agreed with City of Yonkers and disagreed with PERB

o Majority said that this should NOT go to an arbitrator;dispute was not arbitrable because it was not negotiable


37/37

under the Taylor Law. The new that had been passed did

not make an exception for agreements that came under

Triborough.

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