... that the PBA proposal to adopt a modern chart by extending New York City police officers’ tours beyond eight hours (i.e., either a 10- or 12-hour chart), with fewer appearances, is a prohibited subject of collective bargaining.

It’s absurd because it ignores 40 years of PERB precedent, two attorney generals’ decisions and the well-established practice of both the city and the unions.

It’s absurd because even the city — which filed the scope-of-bargaining petition seeking the ruling last December — also disagrees with it. (The city wanted it to be declared permissible, not mandatory, but certainly not prohibited.)

And it’s the height of absurdity because in ruling this way ALJ Maier directly contradicts a scope-of-bargaining ruling he made himself during the PBA’s last round of negotiations.

Maier based his latest decision on a 1911 law prohibiting the police commissioner from scheduling New York City police officers to tours beyond eight consecutive hours or to tours of an average of more than 40 hours during any seven-consecutive-day period, except in various emergencies.

But there has been significant superseding legislation since that time, namely, the 1967 Taylor Law, which has fostered a wide presumption in favor of collective bargaining in this state. Also, there is a bedrock body of law holding that for something to be declared a prohibited subject of collective bargaining, it must be clear that the legislature intended that there be no room for bargaining. Rather than prohibiting bargaining over work schedules, the Taylor Law specifically defines mandatory subjects so as to include “salaries, wages, hours and other terms... ”

The most absurd development in this situation is how ALJ Maier contradicts himself. In his April 30, 2002, decision following a scope-of-bargaining hearing at which I testified that work schedules are not only a mandatory subject of collective bargaining but also that a modern chart should be adopted. In ALJ Maier’s 2002 decision, he stated:

“The city contends that this demand is non-mandatory because it is vague and ambiguous, and is a demand that the employer maintain a specific table of organization. The PBA contends that the testimony showed that the proposal was explained during negotiations, is a work chart setting hours, which does not establish a specific table of organization, and is mandatorily negotiable.

Puglissi’s testimony that the proposal was explained during negotiations was unrebutted, and I (ALJ Maier) find that the proposal is sufficiently clear to apprise the city of the PBA’s position. I do not find that the demand requires a specific table of organization but relates to the scheduling of shifts. Since this is a mandatory subject of collective bargaining, I find that the demand is permissibly submitted to the panel.”

It makes you wonder how this ALJ can rule for us and then, five years later, totally disregard the law and do a complete about-face on the issue.

We filed our exceptions to this absurd ruling May 29 and have appealed it to the PERB board. As I mentioned, the city also disagrees with the ruling and has appealed for different reasons. The ruling is, in fact, so contrary to established precedent that many other unions around the state have filed briefs in support of our position.

We will keep you updated on the progress of the appeal.