City Required To Bargain Over Procedures Used For Due Process Hearing

The City of Long Beach, New York and Local 287 of the International Association of Firefighters (IAFF) are parties to a collective bargaining agreement. In November 2014, Local 287 member Jay Gusler reported that he was injured in the line of duty, and began what turned out to be a long-term absence from work.

A year later, the City informed Gusler that the City “is evaluating whether to exercise its right to separate you from employment pursuant to New York Civil Service Law (CSL) § 71.” CSL § 71 allows an employer to terminate an employee who is absent from work for more than one year due to an occupational disease or injury. The City’s letter further advised Gusler that he could meet with Fire Commissioner Scott Kemins and representatives of the City on November 24, 2015 if he disputed the potential termination, and that Kemins intended to recommend that his employment be terminated if he did not contest such termination.

Local 287 then sent the City a demand to negotiate the procedure for separating a member of the Association from service under CSL § 71. Local 287 included a proposed procedure with its demand, but the City refused to bargain over the procedure. Though the City did not terminate Gusler, Local 287 filed an unfair labor practices complaint with New York’s Public Employment Relations Board, alleging the City was required to bargain over the separation procedure.

The Board found that the separation procedure was a negotiable topic. The Board observed that “While an employer is permitted to terminate an employee who has been disabled by an occupational injury for more than one year, there is no requirement that it do so and no express prohibition against negotiation of an employer’s exercise of the prerogative. Nor does such discretionary authority constitute a non-delegable power which, for reasons of sound public policy, is implicitly exempt from this State’s strong policy in support of collective bargaining.”

The City argued that it did not establish any procedures, and merely provided a hearing to comply with constitutional due process requirements. The Board found the argument unpersuasive: “First, we agree with the Administrative Law Judge that providing notice to the affected employee, an opportunity to be heard, and an automatic recommendation of termination if the employee does not pursue the opportunity to be heard, constitute procedures for implementing a decision to terminate an employee pursuant to CSL § 71. Second, even assuming that the City’s hearing was intended to provide constitutional due process safeguards, this did not relieve the City of its statutory duty to negotiate.

“The City’s statutory duties are independent of and exceed its constitutional obligations. The City is still obligated to satisfy its separate statutory duty to negotiate the procedures pursuant to which decisions are made as to whether the wages and economic benefits will be paid.” Put another way, while the City may have a constitutional obligation to provide due process, such an obligation does not relieve the City of its separate obligation to negotiate concerning the process that is implemented.

Long Beach Professional Firefighters Association, 50 PERB ¶ 3036 (N.Y. PERB 2017).