A negotiating unit is a group of employees who are held by PERB to constitute a body appropriate for bargaining purposes, or who are voluntarily recognized as such by a public employer. All employees of the jurisdiction may be joined into a single unit for purposes of collective bargaining, or they may be divided into several separate units which negotiate independently. The latter is more common.

When the employer “recognizes” the unit, no legal proceedings are necessary to determine the unit’s composition. However, when the employer does not recognize the unit, PERB must determine its appropriateness. The Taylor Law specifies that PERB must apply certain standards in determining negotiating units.

PERB also may exclude management/confidential personnel from negotiating units. Management personnel are employees who formulate policy, are directly involved in collective bargaining, or have a major role in administering a collective bargaining agreement or personnel administration. Confidential employees are those who assist or act in a confidential capacity to management personnel who are directly involved with labor relations, contract administration or personnel administration. Both the state and local governments that wish to exclude management/confidential personnel from existing negotiating units may apply to PERB for such exclusions. Negotiating units may also apply to PERB to have management/confidential positions reclassified as negotiating unit positions.

After the appropriate negotiating unit is defined by employer recognition or by PERB, employees in the unit may exercise the right to be represented by an employee organization of their choice. The chosen organization, once it is recognized or certified, is known as the “bargaining agent” and serves as the exclusive representative of all workers in the negotiating unit, whether or not they are members of the union.

Public employers may voluntarily recognize a particular employee organization as the bargaining agent for a specific negotiating unit. This action is called “recognition.” If, however, the employer does not voluntarily recognize the employee organization, the union must petition PERB for certification, which designates the union as the exclusive bargaining agent for all employees in the negotiating unit for a fixed period of time.

PERB may conduct an election among the members of the negotiating unit to determine which bargaining agent should be certified. Employees face different choices in different elections: they may be asked to choose between competing employee organizations or between an organization and no bargaining agent. After an election, PERB certifies the winner as the bargaining agent. In most cases where only one union seeks bargaining agent status, an election is not held. Rather, PERB grants certification upon a showing by the employee organization that the majority of members in the negotiating unit have signed cards — generally dues check-off cards — indicating their support for the organization seeking certification.

Once certified, the union has the right to represent the employees in the bargaining unit without challenge by the employer or another organization until seven months before the expiration of the collective agreement between the union and the employer. One month earlier, a “window period” opens. During this period, petitions may be filed to change the negotiating unit.

Changes in the certification itself may also occur during the window period. For example, a challenging employee organization may launch a petition drive at this time to force an election against the incumbent bargaining agent. If the challenger demonstrates sufficient support (30 percent of the members of the unit), PERB will schedule an election giving employees a choice between the challenger, the incumbent bargaining agent, and no representative.

Once the bargaining agent has been certified, the Taylor Law requires a public employer negotiate with the bargaining agent over the wages, hours, and other terms and conditions of employment for employees in the negotiating unit. The Taylor Law charges both employers and employee organizations to bargain in good faith. Generally, public employers should be aware that for them good faith means:

Good-faith bargaining does not require employers to agree to specific union proposals, either in whole or in part, nor does it require employers to make counter proposals to specific union demands. However, good faith does require that both parties negotiate with the intention of concluding an agreement.

The scope of negotiations — the actual subject matter that management and labor may negotiate at the bargaining table — is broad. As the New York State Court of Appeals noted in its landmark Huntington decision:

PERB categorizes subjects of negotiations as mandatory, non-mandatory or prohibited.^[2]

The parties must, upon demand, negotiate mandatory subjects of collective negotiations, and the employee bargaining agent and the employer must jointly reach a decision. Examples of mandatory subjects are:

Non-mandatory — permissive — subjects of negotiation are those issues which are negotiable on a voluntary basis. These issues do not involve working conditions and are management prerogatives. A management prerogative is an act or a decision which relates directly to the authority of a public employer to establish government policy in accordance with its public mission. Examples of non-mandatory subjects of negotiation include:

Non-mandatory subjects which have been voluntarily agreed upon and incorporated into a collective bargaining agreement are deemed converted into mandatory subjects of collective negotiations.^[4]

Prohibited subjects may not be negotiated under any circumstances. As noted earlier, a public employer’s obligation to bargain terms and conditions of employment is broad.

Prohibited subjects of negotiation are few, but include: retirement benefits, except the negotiation of improved retirement benefits among the options offered by the state, and subjects void as against public policy.

Local governments should recognize that they may be bound not only by the terms which are spelled out in their negotiated agreements but also by practices that have developed in the workplace over a period of years. These work conditions are called “past practices,” and if they constitute terms and conditions of employment they generally may not be changed without negotiation.

Strikes or lockouts are sometimes invoked to break bargaining deadlocks in the private sector. The Taylor Law, which prohibits strikes, prescribes several forms of third-party intervention to resolve bargaining deadlocks. The Taylor Law also allows negotiating parties to develop jointly their own procedures for breaking deadlocks. Either bargaining party, or PERB, may declare an impasse at anytime within 120 days before the date the contract expires. Steps to Resolve Bargaining Deadlock illustrates the sequence of the three different impasse procedures in the law.

The Taylor Law requires that all negotiated contacts be in writing upon demand. When negotiations are concluded, PERB’s role is limited to serving as a repository for the final agreement. A 1977 amendment of the Taylor Law excludes PERB from any role involving enforcement of a negotiated agreement. PERB’s authority is limited to review of actions which constitute improper employer or employee practices.

Employers:

Activities Prohibited — Employee Organizations:

A party which believes that one of its rights has been violated may file an improper practice charge with PERB.

The Taylor Law gives PERB broad remedial authority in issues regarding a refusal to negotiate in good faith. For example, if PERB were to find that an employer has increased the hours of work without negotiation upon contract expiration, PERB might order restoration of the old work schedule and award compensation to affected employees. On some rare occasions, PERB has found that improper practices by employers were of such magnitude as to constitute a provocation of a subsequent strike. In these cases, PERB limited the length of time the bargaining agent lost its dues and agency shop fee check-off privileges.

The major purpose of the improper practice procedure is to establish and preserve rules of fair play in the conduct of labor-management relations.

Grievance procedures provide a method for settling disputes that arise concerning the meaning or application of an existing collective bargaining agreement.

The United States Department of Labor has summarized the function of a “grievance procedure” as follows

The requirement that public employers in New York State establish grievance procedures predates the Taylor Law. As early as 1962, the General Municipal Law required that all public employers with more than 100 employees provide a grievance procedure conforming to specified statutory standards. Under the Taylor Law, public employers must negotiate a grievance procedure with the recognized or certified bargaining agent.

Most grievance procedures culminate in binding arbitration. This type of arbitration is called “rights arbitration,” because it involves resolution of a dispute as to an employee’s rights under an existing collective bargaining agreement. It should be distinguished from “interest arbitration” for police and firefighters in New York State, which involves resolution of a dispute over the terms of a new collective agreement. Whether or not a grievance procedure culminates in binding arbitration is a subject of negotiation.

Union security arrangements are devices to assure the financial support of employee organizations. Union security arrangements available under the Taylor Law are the right of exclusive representation and membership dues deduction. The Taylor Law entitles all recognized or certified bargaining agents to an automatic deduction of union dues from employees’ wages once the agent obtains signed authorization cards. This helps an employee organization in two ways. First, it reduces dues collection expenses significantly. Second, it is easier and more likely for the organization to maintain a large membership because the organization does not have to rely on employees for periodic payment of dues. If an employee organization engages in an illegal work stoppage, PERB may withdraw the dues and agency shop fee check-off privilege for a period of time. However, individual employees may with draw their dues or agency shop fee authorization at any time.

The Taylor Law requires an employer to deduct an agency shop fee deduction from the salary or wages of employees in the unit who decide not to become a member of the union. An agency shop fee requires an employee who does not join a union that represents his bargaining unit to pay a service fee substantially equal to the dues of that union. The employee need not join the union. The principal rationale of the agency shop fee is that all employees should share the costs of representation incurred by the bargaining agent.

Among the fringe benefits of public employment are retirement benefits. These are long-term liabilities upon the employer, and they are also a major element of employee concern in labor management relations.

The New York State and Local Employees’ Retirement System and the New York State and Local Police and Fire Retirement System serve as the administrators of the pension system for virtually all public employees, except teachers, outside of New York City.

Each jurisdiction participating in these systems was previously able to select from a broad spectrum of retirement plans. However, since 1976, members’ benefits generally have been determined by the date the employee becomes a member of the retirement system.

The New York State Teachers’ Retirement System covers academics in school districts throughout the state. New York City operates five retirement systems for the benefit of City employees.

The cost of a pension system depends on three variables: the number of employees covered by the plan; the salaries paid these employees; and the specific terms or benefits of the pension plan.

An increase in any of these factors has the effect of creating unfunded pension liabilities which must be amortized by an increase in the amount of money contributed to the pension system and/or increased earnings on invested assets.

While the effect of increasing the number of employees is fairly obvious, the latter two variables have a somewhat different effect. For changes in these it is necessary to increase payments to the pension system in order to compensate for past payments based on the lower previous salary rates or benefits, as well as for future payments. Thus, changes in salaries or pension benefits have a retroactive, as well as prospective effect on the costs of a pension system.