The State Court of Appeals recently upheld the New York State Public Employment Relation Board’s (“PERB”) decision that the Town of Islip violated the Taylor Law when it unilaterally discontinued the practice of permanently assigning Town-owned vehicles to certain employees and permitting those employees to use the vehicles for commutation purposes. This memorandum summarizes the decision and how it affects you.

For decades, certain Town employees had been assigned Town-owned vehicles that they were permitted to drive to and from work. In 2008, the Town adopted a policy that, among other things, reaffirmed a portion of a local law prohibiting “personal or unauthorized use of a Town vehicle.” The Town took the position that only elected officials, 24/7 responders and employees with multi-worksite jobs could be assigned “take home vehicles.” All other employees were prohibited by the local law from doing so. Three days before the policy went into effect, the Town advised certain employees that they would be assigned a “take home” car and would have to qualify to do so pursuant to the new policy.

The union filed an improper practice charge, claiming that the provision of take home vehicles was a term and condition of employment that could not be unilaterally eliminated by the Town. A PERB administrative law judge and then the Board on appeal agreed with the union and directed the Town to “restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008.”

The Town exercised its right to appeal the case, all the way up to the Court of Appeals. During the appeal process, the Town sold some or all of the cars formerly assigned to the at-issue union members.

Ultimately, the Court agreed with PERB’s conclusion that the Town had to negotiate with the union prior to eliminating the take home vehicles. It further concluded that the Town had never itself interpreted its local law as prohibiting the assignment of take home vehicles. Moreover, even when it prohibited certain employees from using the vehicles for commutation purposes, it permitted other categories of employees to do so. In other words, the Town’s own conduct did not support its argument that the local law barred “take home” vehicles.

In light of the Town’s sale of its vehicle fleet, the Court determined that PERB’s remedial order was unreasonable. It stated that, “[f]orcing the town to invest significant taxpayer dollars to replace these vehicles is unduly burdensome under the circumstances, and does not further the goal of reaching a fair negotiated result.” As a result, it remanded the case to PERB to fashion a more appropriate remedy.

This decision reaffirms PERB’s longstanding jurisprudence that take home vehicles are a term and condition of employment when they have been utilized for a sustained period of time and without reservation or restriction by the employer. It also demonstrates how an employer’s conduct with regard to interpreting the requirements of its own policies and procedures can carry more weight than their actual language.

Please contact us if you have any questions about this decision and how it may impact issues you are facing with the employee organizations representing your employees.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2014