PERB Decision Regarding Employer’s Unilateral Termination of Past Practice



The Public Employment Relations Board (“PERB”) recently issued a decision holding that a work rule permitting employees to listen to personal electronic devices and radios at their work stations constituted a term and condition of employment and so could not be unilaterally changed by their public employer.  This memorandum summarizes the decision and provides guidance regarding best employer practices in response to the decision.

In State of New York (Department of Transportation), employees represented by the Civil Service Employees Association (“the CSEA”) had been allowed to play their radios during the day at their respective work stations.  In 2006, a CSEA-represented employee requested that the Department of Transportation (“the DOT”) eliminate this work rule as a reasonable accommodation for his hearing impairment because the noise interfered with his ability to work.  The DOT responded by implementing a rule permitting employees to continue to play their radios, but requiring that the volume not exceed a specified decibel level. 

This did not satisfy the employee, who filed a discrimination lawsuit.  The State and the employee reached a settlement in 2010 that required the DOT to prohibit the playing of radios at work.  The CSEA was not a party to this settlement agreement, and the DOT did not seek to negotiate with the CSEA before implementing it. The CSEA filed an improper practice charge alleging that the DOT had unilaterally terminated a mandatory past practice in violation of the Taylor Law’s duty to bargain.

PERB held that listening to music was a workplace benefit because it related to the comfort and convenience of the employees.  The decision was based, in part, on the fact that the DOT had failed to adequately show that its interests as the employer outweighed those of the employees in continuing to listen to music; e.g., the DOT did not present any evidence concerning the layout of the workplace, the work performed by employees, the amount and volume of sound created by other sources, the number of employees involved in the practice, or the number of other employees who may have complained about the music.  The DOT also failed to demonstrate that the music ban did not go beyond what was necessary to meet its managerial interests by, for example, considering less intrusive alternatives such as more aggressively enforcing the 2006 decibel limitation or requiring employees to use employer-supplied headphones. 

With regard to the interplay between an employer’s obligations pursuant to the Public Employees’ Fair Employment Act and the Americans with Disabilities Act (“the ADA”), PERB concluded that the ADA does not constitute a license for employers to act unilaterally in violation of the duty to negotiate.  In fact, the Equal Employment Opportunity Commission has expressly encouraged employers to engage labor organizations in developing an acceptable accommodation for represented employees.

Best Practices

Even though PERB limited its decision to the facts of the case, the decision provides guidance regarding when an employer can eliminate a work rule.  Employers should keep detailed documentation regarding relevant workplace practices.  If a union files an improper practice charge regarding a change in past practice, the employer must be prepared to present comprehensive and thorough evidence regarding the practice itself, the employer’s interest in altering or terminating it, efforts to accommodate affected employees, attempts to negotiate changes with the union(s) and other similar facts. 

If an employer has knowledge of a particular situation in the workplace that it does not want to continue, the employer should determine whether it constitutes a negotiable term and condition of employment that must be negotiated, or whether it has a legitimate factual and/or legal basis upon which to modify or eliminate it without negotiations.  If the employer allows an otherwise nonmandatory situation to continue, it may ripen into a binding, enforceable past practice, thereby limiting the employer’s ability to restrict or terminate the practice in the future. 

An employer must abide by its union-based bargaining obligations, even when entering into a settlement with a particular employee.  An employer should, in appropriate circumstances, be prepared to consult and sometimes even negotiate with the union regarding an employee’s requested accommodation or settlement of litigation with an individual employee to the extent that it impacts on other represented employees.  This obligation applies regardless of whether the employee is actually represented by the union in the lawsuit or pending claim.

Please contact us if you have any questions about this PERB decision and how it may affect your workplace rules and practices.


© Lamb & Barnosky, LLP 2013