PBA, 6 OCB2d 33 (BCB 2013) (IP) (Docket No. BCB 3061-12) Summary of Decision: The Union alleged that the City and the NYPD violated NYCCBL § 12-306(a)(1) and (4) when the NYPD issued a new Interim Order that unilaterally changed performance evaluation procedures by imposing a 30-day deadline to appeal. The City argued that the change was not mandatorily bargainable because setting the appeal deadline fell within the NYPD’s managerial rights and that the change was de minimis. The Board found that the institution of an appeal deadline was a procedural change that altered employee participation by shortening the time officers had to prepare and submit their appeals and, thus, was not within the NYPD’s managerial rights, nor a de minimis change. Accordingly, the petition is granted. (Official decision follows.) _________________________________________________________________ OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING In the Matter of the Improper Practice Proceeding -between- PATROLMEN’S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., Petitioner, -and- THE CITY OF NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT, 1 Respondents. __________________________________________________________________ DECISION AND ORDER On December 10, 2012, the Patrolmen’s Benevolent Association of the City of New York (“PBA” or “Union”) filed a verified improper practice petition against the City of New York (“City”) and the New York City Police Department (“NYPD”). The Union alleges that the 1 The Petition named the New York City Office of Labor Relations (“OLR”) as a party. OLR is not a proper party to the instant matter and we amend the petition nunc pro tunc to remove OLR as a party and adjust the caption accordingly.
6 OCB2d 33 (BCB 2013) 2 Respondents violated § 12-306(a)(1) and (4) of the New York City Collective Bargaining Law (New York City Administrative Code, Title 12, Chapter 3) (“NYCCBL”) when the NYPD issued Interim Order (“IO”) 41 which unilaterally changes the performance evaluation procedures by imposing a 30-day deadline to appeal. The City argues that the change was not mandatorily bargainable because setting the appeal deadline fell within the NYPD’s managerial rights. The City further argues that the change was de minimis. The Board finds that instituting an appeal deadline was a procedural change that altered employee participation by shortening the time officers have to prepare and submit their appeals and, thus, is not within the NYPD’s managerial rights, nor a de minimis change. Accordingly, the petition is granted. BACKGROUND The Union and the City are parties to the 2006-2010 Police Officers Unit Agreement, which remains in status quo pursuant to NYCCBL § 12-311(d). The Union represents NYPD officers. The NYPD’s stated mission is to “enhance the quality of life in our City . . . . enforce the laws, preserve the peace, reduce fear, and provide for a safe environment.” (Ans. ¶ 27) The pertinent procedures for NYPD officers’ performance evaluations are found in Patrol Guide Procedure (“PGP”) 205-48, entitled “Evaluations-General Members of Service.” (Union, Ex. B) Under PGP 205-48, NYPD supervisors are required to prepare a performance evaluation form each year for every officer that they supervise. The supervisor, referred to as the “rater,” prepares the performance evaluation form of the officer being evaluated and then submits the completed form to a superior officer, referred to as the “reviewer.” The reviewer comments upon the performance evaluation form, signs it, and returns the signed form to the rater. The rater then discusses the performance evaluation with the officer.
6 OCB2d 33 (BCB 2013) 3 Pre-IO 41 Procedures for the Appeal of a Performance Evaluation The performance evaluation form has a box for the officer to check if, after talking to the rater, the officer desires to appeal the performance evaluation. The pertinent procedures for NYPD officers to appeal their performance evaluations are found in PGP 205-58, entitled “Appeal of Evaluations-Uniformed Members of Service.” (Union, Ex. D) Under PGP 205-58, within 30 days of the date the officer has indicated a desire to appeal, the officer’s Commanding Officer (“CO”) is required to schedule an interview with the officer, the rater, and the reviewer to attempt to resolve the appeal. This step is referred to as the “rater/[reviewer] level.” 2 (Id.) If the appeal is not resolved at the rater/reviewer level, PGP 205-58 instructs the officer to submit a typed report to the personnel officer concerned. Respondents admit that the PGPs did not specify a timeline for officers to submit appeals of their performance evaluations. (See Ans. ¶ 18) The City, however, avers, and the Union denies, that prior to the revision of PGP 205-58, “the amount of time an officer had to appeal his or her evaluation was until the next evaluation was issued . . . subject to the discretion of individual COs” who could set appeal deadlines for the officers they supervised. (Ans. ¶ 80) Post-IO 41 Procedures for the Appeal of a Performance Evaluation On July 3, 2012, the NYPD suspended and replaced PGP 205-58 by issuing IO 41, entitled “Revisions to Patrol Guide 205-58, Appeal of Evaluation-Uniformed Members of Service.” (Union, Ex. F) Under IO 41, the steps of the appeal process up to and including the rater/reviewer level remain the same as those found in PGP 205-58. However, regarding the submission of the typed report by an officer if the matter is not resolved at the rater/reviewer level, IO 41 requires that the report be submitted “within thirty days.” (Union, Ex. F) (emphasis 2 PGP 205-58 reads “rater/receiver.” The parties agree that this is a typographical error and that the correct term is rater/reviewer.
6 OCB2d 33 (BCB 2013) 4 in original) The City avers that IO 41 thus provides “clarity to the evaluation appeals process.” (Ans. ¶ 47). On December 11, 2012, the Union filed the instant petition. As a remedy, the Union requests that the Board order Respondents to: rescind any provision of IO 41 that modifies performance evaluation appeal procedures; restore the status quo ante with respect to its members participation in the performance evaluation appeal procedures and with respect with to there being no deadline in which to file such an appeal; make whole any member aggrieved by IO 41, including, but not limited to, accepting and processing performance evaluation appeal reports that have been or may be submitted by Union members beyond the unilaterally imposed 30-day deadline; post appropriate notices within all precincts and commands; and order any other relief the Board deems just and proper. POSITIONS OF THE PARTIES Union’s Position The Union argues that the NYPD violated NYCCBL § 12-306(a)(4) and derivatively NYCCBL § 12-306(a)(1) when it issued IO 41. 3 According to the Union, IO 41 unilaterally 3 NYCCBL § 12-306(a) provides, in pertinent part, that: It shall be an improper practice for a public employer or its agents: (1) to interfere with, restrain or coerce public employees in the exercise of their rights granted in [§] 12-305 of this chapter; * * * (4) to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees; NYCCBL § 12-305 provides, in pertinent part, that: “Public employees shall have the right to self-organization, to form, join or assist public employee organizations, to bargain collectively
6 OCB2d 33 (BCB 2013) 5 created a time limit for officers to appeal their performance evaluations. It is undisputed that, prior to IO 41, there was no written time limit after the rater/reviewer level for officers to submit reports appealing their performance evaluations. The Union disputes the City’s claim that, prior to IO 41, individual COs had the discretion to set a time limit on appeals and that appeals had to be filed before the next performance evaluation. However, the Union notes that, even assuming these limits existed, IO 41 still unilaterally changed performance evaluation procedures by setting a uniform 30-day deadline for all officers. It is well established that the procedural aspects of performance evaluations are mandatorily bargainable. The Board, like the Public Employment Relations Board (“PERB”), has held that the scheduling of performance evaluations are procedural and, thus, mandatorily bargainable. Respondents, the Union argues, thus have violated NYCCBL § 12-306(a)(1) and (4) by unilaterally instituting without bargaining IO 41’s 30-day deadline to appeal. The Union argues that requiring an officer to research, draft, and submit an appeal within 30 days or otherwise lose the right to appeal significantly alters the officer’s participation and, thus, is not a de minimis change. The Union urges the Board to follow City of Albany, 41 PERB ¶ 3019 (2008), in which PERB found that a 30-day time limit on when requests for leave may be submitted was a mandatory subject of bargaining. The Union notes that the Board, in DC 37, L. 3631, 4 OCB2d 34, at 9 (2011), rejected the notion advocated by the City that a change must be “material, substantial and significant” for it not to be considered a de minimis change. (Rep. ¶ 49) (quoting Ans. ¶ 76) Regarding the City’s managerial rights argument, the Union argues that Respondents had previously acknowledged in other cases before the Board that procedures related to performance through certified employee organizations of their own choosing and shall have the right to refrain from any or all of such activities.”
6 OCB2d 33 (BCB 2013) 6 evaluations are mandatorily bargainable. The doctrine of estoppel against inconsistent positions precludes a party from taking a position in one legal proceeding inconsistent with that taken in a prior proceeding. Thus, Respondents are estopped from now arguing that setting a uniform 30-day deadline for performance evaluation appeals is a managerial prerogative under NYCCBL § 12-307(b). 4 The Union argues that performance evaluation procedures are not an enumerated managerial right, nor is there anything in NYCCBL § 12-307(b) indicating that they should be deemed a non-mandatory subject of bargaining. To the contrary, Board precedent establishes that procedural aspects of performance evaluations are mandatorily bargainable. In a balancing test, the Union argues that the interests of its members outweighs the interest of the NYPD. The officer’s interests are substantial; their careers are governed by their performance evaluations. Bargaining over an appeal deadline would not interfere with the NYPD’s mission or its assignment of personnel, nor would it impede its ability to fight crime. Respondents have not demonstrated that the NYPD’s prior practice was ineffective or that the NYPD had an immediate 4 NYCCBL § 12-307(b) provides that: It is the right of the city . . . to determine the standards of services to be offered by its agencies; . . . direct its employees; . . . determine the methods, means and personnel by which government operations are to be conducted; . . . and exercise complete control and discretion over its organization and the technology of performing its work. Decisions of the city or any other public employer on those matters are not within the scope of collective bargaining, but, notwithstanding the above, questions concerning the practical impact that decisions on the above matters have on terms and conditions of employment, including, but not limited to, questions of workload, staffing and employee safety, are within the scope of collective bargaining. The Union urges that the Board adopt the dissenting opinion in UFA, 77 OCB 39 (BCB 2006), and find that, as no explicit managerial rights clause exists in the Taylor Law, the Board should find that NYCCBL § 12-307(b) does not meet the substantial equivalence standard.
6 OCB2d 33 (BCB 2013) 7 need to act unilaterally. The Union is not challenging any aspects of IO 41 that modifies supervisory functions of non-PBA members 5 City’s Position The City argues that the performance evaluation appeal procedure set forth in IO 41 is an exercise of express managerial rights under NYCCBL § 12-307(b). NYCCBL § 12-307(b) unequivocally guarantees the City the right to “direct its employees; [and] . . . determine the methods, means and personnel by which government operations are to be conducted.” According to the City, performance evaluations are a crucial management tool in determining the deployment of personnel. The City argues that to ensure that this function is performed as efficiently as possible, performance evaluations must be completely processed, including all appeals, on a uniform basis. Thus, the City argues, performance evaluations go to the heart of the NYPD’s mission. The City further argues that the changes occasioned by IO 41 are not bargainable because they are substantive, not procedural. The City argues that the instant case is analogous to PBA, 63 OCB 2 (BCB 1999), where the Board found that the implementation of performance banding to the NYPD’s performance evaluation system, where by officers were compared to their peers and designated to be in the top 25 percent, middle 50 percent, or lower 25 percent band, was a non-mandatory subject of bargaining. According to the City, as with the performance banding at issue in PBA, IO 41 places no additional responsibility upon officers, nor does it alter the steps of the appeal process. The City argues that the only difference occasioned by IO 41 is that officers “must inform supervisors of their intent to appeal sooner.” (Ans. ¶ 73) 5 The Union further argues that to the extent the City’s recitation in its answer of past changes to the NYPD’s performance evaluation process can be considered an implicit waiver argument, the Union cannot be found to have waived any of its rights as the City has not demonstrated that the Union intentionally relinquished a known right.
6 OCB2d 33 (BCB 2013) 8 The City argues that, should the Board find the changes occasioned by IO 41 to be procedural, they are de minimis and, thus, not mandatorily bargainable. The City argues that the Board has repeatedly held that changes are considered de minimis where they “do not materially, substantially, or significantly change a term or condition of employment, are a mere change in procedure, or do not increase the level of employee participation.” (Ans. ¶ 76) The City argues that there was always a time limit for officers to appeal their performance evaluations, either set by the officer’s CO or until the officer’s next performance evaluation. According to the City, the difference between a 30-day deadline and a number set by a CO is de minimis. Finally, the City argues that since the Union has failed to establish that Respondents violated NYCCBL § 12-306(4), there is no derivative violation of NYCCBL § 12-306(1). 6 DISCUSSION In the instant case, the Union argues that Respondents violated the NYCCBL by unilaterally instituting a 30-day deadline for officers to appeal their performance evaluations if their concerns were not resolved at the rater/reviewer level. We agree, finding that the institution of the appeal deadline was a procedural change that altered employee participation by shortening the time officers had to prepare and submit their appeals and, thus, was not within the NYPD’s managerial rights nor a de minimis change. Under NYCCBL § 12-307(a), “public employers and employee organizations have a duty to bargain in good faith concerning wages, hours, and working conditions, and any subject with a significant or material relationship to a condition of employment.” DC 37, 3 OCB2d 5, at 7 (BCB 2010). Thus, “[i]t is an improper practice under NYCCBL § 12-306(a)(4) for a public 6 The City also argues that there is no independent violation of NYCCBL § 12-306(1). However, the Union has not argued that Respondents independently violated NYCCBL § 12-306(1).
6 OCB2d 33 (BCB 2013) 9 employer or its agents ‘to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees.’” DC 37, L. 3631, 4 OCB2d 34, at 10 (quoting NYCCBL § 12-306(a)(4)); see also DC 37, L. 436 & 768, 4 OCB2d 31, at 18 (BCB 2011) (a violation of NYCCBL § 12-306(a)(4) is also a violation of NYCCBL § 12-306(a)(1)). Further, “[i]f a unilateral change is found to have occurred in a term or condition of employment which is determined to be a mandatory subject, then the Board will find the change to constitute a refusal to bargain in good faith and, therefore, an improper practice.” DC 37, L. 3631, 4 OCB2d 34, at 11 (citing UFOA, 1 OCB2d 17, at 9 (BCB 2008)). Thus, a petitioner “must first demonstrate that the matter over which it seeks to negotiate is or relates to a mandatory subject of bargaining.” SSEU, L. 371, 1 OCB2d 20, at 9-10 (BCB 2008). The “petitioner must then demonstrate the existence of a change from the existing policy or practice.” DC 37, L. 3631, 4 OCB2d 34, at 11 (citations omitted). Matters within the scope of collective bargaining “generally include wages, hours, working conditions, and any subject with a significant or material relationship to a condition of employment.” Id. Regarding performance evaluations, “[s]ubstantive changes, such as changes in criteria and standards, are not subject to bargaining.” DC 37, L. 1508, 79 OCB 21, at 22 (BCB 2007) (citations omitted). We note that the City has not claimed, nor has the Union alleged, that IO 41 altered the criteria or standards for performance evaluations. Thus, the City’s reliance on PBA, 63 OCB 2, is misplaced. PBA concerned the NYPD’s unilateral implementation of performance banding to its evaluations where by officers were compared to their peers and designated to be in the top 25 percent, middle 50 percent, or lower 25 percent band. We found such non-bargainable because performance banding is “not a procedure” but a change to the performance evaluation standards. In contrast, we find that the appeal deadline in the instant case is a procedure as it
6 OCB2d 33 (BCB 2013) 10 concerns the appeal process itself and not the standards or criteria applied. See PBA, 73 OCB 12, at 15 (BCB 2004), affd., Matter of Patrolmen’s Benevolent Assn. v. N.Y.C. Bd. of Collective Bargaining, Index No. 112687/04 (Sup. Ct. N.Y. Co. Aug. 8, 2005), affd., 38 A.D.3d 482 (1 st Dept. 2007), lv. den., 9 N.Y.3d 807 (2007) (citing County of Nassau (PBA), 35 PERB ¶ 4566, at 4721-4722 (2002)) (other citations omitted). Regarding performance evaluation procedures, “we have consistently held that the procedures for implementing performance evaluations are mandatory subjects of bargaining.” DC 37, L. 3631, 4 OCB2d 34, at 12 (citing DC 37, 75 OCB 13, at 11 (BCB 2005); DC 37, L. 1508, 79 OCB 21, at 22-23; PBA, 63 OCB 2, at 11). 7 Thus, “when procedural revisions, such as timing issues, are made to performance evaluations, they are mandatorily negotiable unless they pertain only to supervisory functions.” PBA, 73 OCB 12, at 15. See also DC 37, L. 3631, 4 OCB2d 34, at 12-13 (conducting an employee review on a more frequent basis was a procedural change altering employee participation and, thus, a mandatory subject of bargaining) (citing DC 37, L. 1508, 79 OCB 21, at 23; Matter of Patrolmen’s Benevolent Assn. of the City of N.Y., No. 112687/04, slip op at 6; Suffolk County Board of Cooperative Educational Services, 17 PERB ¶ 3043 (1984)). The parties disagree as to whether, prior to IO 41, there was a deadline for officers to file appeals. It is, however, undisputed that, prior to IO 41, there was not a uniform 30-day deadline. Thus, IO 41’s new appeal deadline is not a clarification of a pre-existing policy. See DC 37, 4 OCB2d 19, at 23 (BCB 2011) (revision to a written policy which eliminated supervisor’s discretion cannot be considered a clarification); cf. COBA, 69 OCB 26, at 19 (BCB 2002) (revision in directive clarifying the meaning of the written term “timely appeal” not mandatorily bargainable). 7 As we find that setting the deadline at issue was not a managerial prerogative, we do not reach the Union’s doctrine of estoppel against inconsistent positions argument.
6 OCB2d 33 (BCB 2013) 11 We find that this procedural change does not “pertain only to supervisory functions.” PBA, 73 OCB 12, at 15. The City acknowledges that IO 41 requires officers to “inform supervisors of their intent to appeal sooner.” (Ans. ¶ 73) (emphasis added) That is, IO 41 shortens the time frame officers have to prepare and submit their appeal report to 30 days. This alteration to the procedures to be followed by employees is “a qualitative change in employees’ participation in the process.” DC 37, 75 OCB 14, at 15 (BCB 2005). Thus, the institution of the 30-day deadline is a procedural, not substantive, change and mandatorily bargainable. See City of Albany, 41 PERB ¶ 3019 (Albany’s implementation of the 30-day restriction on when requests to use leave may be submitted found to “impose[] a new procedural restriction” and mandatorily bargainable). We find unpersuasive the City’s argument that that the change occasioned by IO 41 is de minimis. A change is considered de minimis where it “is, a change in form only, which does not require increased participation on the part of the employee, or alter the substance of the benefit to the employee.” DC 37, 4 OCB2d 43, at 8-9 (BCB 2011) (citing CEU, L. 237, 2 OCB2d 37, at 12-13 (BCB 2009); UFA, 4 OCB2d 3, at 7 (BCB 2011)). By reducing the time officers have to prepare their appeal, IO 41 alters employee participation and alters the substance of the benefit (the right to appeal) to employees. That police officers still possess the right to appeal their performance evaluations, albeit subject to a deadline, does not render the change de minimis. 8 8 We disagree with the City’s assertion that “the Board has repeatedly held” that a change is de minimis “where an employer’s actions do not materially, substantially, or significantly change a term or condition of employment.” (Ans. ¶ 76) To the contrary, the Board has explicitly rejected this position. See DC 37, 4 OCB2d 43, at 9, n. 5 (rejecting City’s argument that a change must be “material, substantial and significant” in order not to be found de minimis and holding that “under the Taylor Law, ‘the value of the benefit at issue is not judged by the Board; the only issue is whether it affects terms and conditions of employment.’”) (quoting Board of Education, 42 PERB ¶ 4568, at 4760 (ALJ 2009), affd., 44 PERB ¶ 3003 (2011)) (other citations omitted).
6 OCB2d 33 (BCB 2013) 12 See DC 37, 4 OCB2d 43, at 11 (availability of other free parking spaces nearby work location does not make reduction of City-provided free parking spaces adjacent to the work location de minimis). We find that the provision of IO 41 regarding the 30-day deadline to submit the report appealing the unsatisfactorily resolution of a performance evaluation at the rater/reviewer level to be violative of NYCCBL § 12-306(a)(1) and (4). We order that Respondents rescind that provision and cease and desist from implementing that provision until such time as Respondents bargain over these issues. See DC 37, 77 OCB 34, at 8 (BCB 2006). We further order Respondents: to restore the status quo ante with respect to the deadline to file appeals of performance evaluations; to make whole any member aggrieved by the 30-day appeal deadline provision of IO 41, including, but not limited to, accepting and processing performance evaluation appeal reports that have been or may be submitted by Union members beyond the IO 41’s 30-day deadline; and to post appropriate notices.
6 OCB2d 33 (BCB 2013) 13 ORDER Pursuant to the powers vested in the Board of Collective Bargaining by the New York City Collective Bargaining Law, it is hereby ORDERED, that the improper practice petition filed by the Patrolmen’s Benevolent Association of the City of New York against the City of New York and the New York City Police Department, docketed as BCB-3061-12, be, and the same hereby is, granted to the extent that it involves claims that Respondents violated NYCCBL § 12 306(a)(4) and derivatively violated NYCCBL § 12 306(a)(1) by failing to bargain in good faith over setting a 30-day deadline to file an appeal of an unsatisfactory performance evaluation by the issuance of Interim Order 41; and it is further ORDERED, that the New York City Police Department rescind the provision of Interim Order 41 setting a 30-day deadline for the appeal of a performance evaluation; cease and desist from implementing that provision until such time as it bargains over such provision in accordance with its obligations under the New York City Collective Bargaining Law; restore the status quo ante Interim Order 41 with respect to the deadline to file appeals of performance evaluations; and make whole any officer aggrieved by the 30-day appeal deadline provision of Interim Order 41, including, but not limited to, accepting and processing performance evaluation appeal reports that have been or may be submitted beyond Interim Order 41’s 30-day deadline; and it is further
6 OCB2d 33 (BCB 2013) 14 ORDERED, that the City of New York and the New York City Police Department post appropriate notices detailing the above-stated violations of the New York City Collective Bargaining Law in the same manner and to the same extent as used to notify employees of Interim Order 41. Dated: New York, New York December 19, 2013 MARLENE A. GOLD CHAIR GEORGE NICOLAU MEMBER CAROL A. WITTENBERG MEMBER M. DAVID ZURNDORFER MEMBER PAMELA S. SILVERBLATT MEMBER Concurring in judgment; CHARLES G. MOERDLER dissenting in part in separate opinion MEMBER PETER PEPPER MEMBER
NOTICE TO ALL EMPLOYEES PURSUANT TO THE DECISION AND ORDER OF THE BOARD OF COLLECTIVE BARGAINING OF THE CITY OF NEW YORK and in order to effectuate the policies of the NEW YORK CITY COLLECTIVE BARGAINING LAW We hereby notify: That the Board of Collective Bargaining has issued 6 OCB2d 33 (BCB 2013), determining an improper practice petition between the Patrolmen’s Benevolent Association of the City of New York and the City of New York and the New York City Police Department. Pursuant to the powers vested in the Board of Collective Bargaining by the New York City Collective Bargaining Law, it is hereby: ORDERED, that the improper practice petition filed by Patrolmen’s Benevolent Association of the City of New York against the City of New York and the New York City Police Department, docketed as BCB-3061-12, be, and the same hereby is, granted to the extent that it involves claims that Respondents violated NYCCBL § 12 306(a)(4) and derivatively violated NYCCBL § 12 306(a)(1) by failing to bargain in good faith over setting a 30-day deadline to file an appeal of an unsatisfactory performance evaluation by the issuance of Interim Order 41; and it is further
ORDERED, that the New York City Police Department rescind the provision of Interim Order 41 setting a 30-day deadline for the appeal of a performance evaluation; cease and desist from implementing that provision until such time as it bargains over such provision in accordance with its obligations under the New York City Collective Bargaining Law; restore the status quo ante Interim Order 41 with respect to the deadline to file appeals of performance evaluations; and make whole any officer aggrieved by the 30-day appeal deadline provision of Interim Order 41, including, but not limited to, accepting and processing performance evaluation appeal reports that have been or may be submitted beyond Interim Order 41’s 30-day deadline; and it is further ORDERED, that the City of New York and the New York City Police Department post appropriate notices detailing the above-stated violations of the New York City Collective Bargaining Law in the same manner and to the same extent as used to notify employees of Interim Order 41. The New York City Police Department (Department) Dated: _________________________________ (Posted By) (Title) This Notice must remain conspicuously posted for 30 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
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