PERB’s policy of initially deferring to a contract arbitration procedure between the parties to resolve an “alleged improper practice” challenged

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PERB’s policy of initially deferring to a contract arbitration procedure between the parties to resolve an “alleged improperpractice” challengedWestchester County Dept. of Pub. Safety Police BenevolentAssn., Inc. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op07178, Appellate Division, Third Department
The New York State Public Employment Relations Board’s[PERB] “deferral policy” in cases alleging "improper practices" was challenged by Westchester County. The Countycontended that the policy constituted “an abandonment of the exclusive,nondelegable jurisdiction over improper practice charges granted to PERB byCivil Service Law §205(5)(d).”
Essentially, PERB’s policy utilized an agreed-upon bindingarbitration procedure set out in a collective bargaining agreement between theparties to resolve a “claimed improper practice” before it would consider the allegation.
The union had filed an improper practice charge with PERBalleging that the County had refused to negotiate an issue concerning the "maintenance ofstandards" clause in the governing collective bargaining agreement in violation of Civil Service Law §209-a(1)(d).
When PERB applied its deferral policy and conditionallydismissed the charge pending the outcome of binding arbitration conductedpursuant to the negotiated grievance procedure over Westchester's objections, Westchester filed a petition inSupreme Court appealing its ruling.
Supreme Court dismissed the County’s petition, agreeing withPERB that the charge raised an issue covered by the CBA and thus provided areasonable basis for PERB to apply its policy of deferring the matter tobinding arbitration. The Appellate Division agreed, noting that PERB had earlier ruled on this issue, which decision was affirmed in Matter of Westchester County Police Officer's Benevolent Assn. v Public Empl. Relations Bd., 301 AD2d 850. This, said the Appellate Division, gave the union “a reasonably arguable right to submit the conduct alleged in the improper practice charge to binding arbitration.”
The Appellate Division, in sustaining the lower court’s rulingand dismissed the County’s appeal, explained:
1. The application of the policy resulted in a conditionaldismissal, meaning that the improper practice charge remains subject to beingreopened before PERB after the conclusion of the arbitration process; and
2. The courts have generally deferred to PERB'sinterpretation of its jurisdiction under Civil Service Law §205(5)(d), citing Matterof Roma v Ruffo, 92 NY2d 489.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07178.htm