Decertification Brief
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NYSCOPBA's brief on the Law Enforcement decertification case was filed on Friday, Apruil 29, 2006. Briefs were also filed by CSEA,C-82 and GOER. Please keep in mind that there is no set time during which the ALJ must make a decision on this case. It could be a month, it could be more. As soon as there is any information about a decision, you will be notified. Until then, if you have questions, please contact Keith Zulko or Business Agents Jerry DeWitt and Doug Trotter. |
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STATE OF NEW YORK PUBLIC EMPLOYMENT RELATIONS BOARD _______________________________________________ In the Matter of JONES BEACH LIFEGUARDS CORP, Petitioner, PERB CASE NOS. -and- C-5339; C-5443 CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, Petitioner, -and- STATE OF NEW YORK, Employer, -and- NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. Respondent. ______________________________________________________________________________ MEMORANDUM OF LAW ON BEHALF OF RESPONDENT ______________________________________________________________________________
SHEEHAN GREENE CARRAWAY GOLDERMAN & JACQUES, LLP. Attorneys for Respondent 99 Pine Street, Suite 402 Albany, New York 12207 (518) 462-0110
Nancy L. Burritt, Esq.Of Counsel
PRELIMINARY STATEMENT....................................................................................................... 1 ARGUMENT................................................................................................................................... 2
POINT I A. Initial uniting or accretion cases and the impact of differing impasse resolution procedures. 5 B......... Consistent with PERB precedent concerning fragmentation of existing units, dispute resolution differences alone have not been found to require the fragmentation of an existing unit. 6
PRELIMINARY STATEMENT A petition for certification and decertification was filed by the Jones Beach Lifeguards Corp on or about October 20, 2003 seeking representation of a group of titles within the Security Services Unit (“SSU”) represented by the New York State Correctional Officers and Police Benevolent Association, Inc. (“NYSCOPBA”). Specifically, the petitioner seeks the removal of the following titles from the SSU and their placement in a separate negotiating unit: Assistant Chief Lifeguard; Chief Lifeguard; Lifeguard; Lifeguard 2; Supervising Lifeguard (LISPRC); Field Lieutenant of LISPRC Lifeguards; Field Captain of LISPRC Lifeguards; and Area Captain of LISPRC Lifeguards.[1] On or about February 20, 2004, a motion to intervene in this proceeding was made by the New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO (”Council 82”), seeking to have these titles placed in the Agency Law Enforcement Services Unit (“ALES”) represented by Council 82. This motion was rejected by PERB, and refilled on March 16, 2004. The second motion was granted by PERB. On or about March 31, 2003, despite its earlier formal position that it would not intervene, the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (“CSEA”) moved to intervene, seeking the placement of these titles in the Operational Services Unit (“OSU”) of State employees represented by CSEA. This motion was granted by PERB, though CSEA, by letter dated August 12, 2004, sought permission to withdraw from the proceeding. Thereafter, on or about August 23, 2004, CSEA filed a certification and decertification petition seeking the removal of all of the SSU titles (with the exception of the Lifeguard titles at issue in C-5339) and their placement in the OSU.[2] Following a November 24, 2004 conference and further review of the files in C-5443 and C-5339, the Administrative Law Judge consolidated these cases for further processing. The Administrative Law Judge has asked the parties to brief some threshold issues in the consolidated cases, the most important of which is the effect on the proceedings of the fact that the titles petitioned for are not eligible for interest arbitration while others in the present bargaining unit are. The parties have also been asked to brief the issue of whether consideration should be given to the unit placement of those other titles presently in the Security Services Unit who are also ineligible for interest arbitration.
ARGUMENT POINT I
A DIFFERENCE IN IMPASSE RESOLUTION PROCEDURES, WITHOUT MORE,
There are any number of PERB decisions on uniting, whether they concern the decision to create a new unit, the decision to add new titles to an existing unit, or the decision to remove titles from an existing unit. The initial premise on which all uniting decisions are made is the application of the statutory criteria set out in Civil Service Law §207(1): (a) that the definition of a unit correspond to a community of interest among the employees included in the unit; (b) that the government officials at the level of the unit have the authority to agree or to effectively recommend agreement on the terms and conditions to be negotiated between the parties; and (c) that the unit must be compatible with the joint responsibilities of the employer and employees to serve the public (this is where the administrative convenience of the employer comes in). The most important of these three criteria is whether the employees share a community of interest. Hartsdale Fire District, 10 PERB ¶3032 (1977) Without a community of interest, the other two criteria are immaterial. When determining the scope of a newly created unit, PERB will exclude from that unit titles that do not share the same community of interest as do the other titles in the unit. However, PERB has also recognized that the community of interest standard must be viewed differently when presented with a petition seeking to fragment an existing, long-standing unit. In State of New York (Long Island Park, Recreation and Historical Preservation Commission), 22 PERB 3043 (1989), involving the same titles sought in C-5339, the petition to sever seasonal lifeguard titles from the SSU was dismissed because the petitioning union failed to establish compelling evidence of the need to fragment the unit, generally proven by establishing the existence of a conflict of interest or inadequate representation. Id. This is a different standard than PERB uses to determine whether a community of interest exists sufficient to form a new unit. While PERB might not place certain titles in the same unit because the community of interest is not sufficient, in order to remove those titles from an existing unit, PERB requires proof of a conflict of interest or inadequate representation.[3] NYSCOPBA submits that it is entirely appropriate, in the context of a fragmentation petition such as CSEA’s in this case, where the showing of interest is made up entirely of a membership list of an existing unit represented by the petitioning union, that the more rigorous standard applied to fragmentation cases be applied. The SSU law enforcement titles that are the subject of CSEA’s petition have shown no interest whatsoever in being represented by CSEA or in being accreted into the OSU or the Institutional Services Unit (“ISU”). In fact, the opposite is true for very specific economic reasons. SSU law enforcement titles, if moved into either of the units represented by CSEA, would lose money. They would be covered by a lower salary schedule; they would receive a vastly reduced uniform allowance in the ISU, and none in the OSU. They would no longer be eligible for the security and law enforcement differential provided by Article 11. 10 of the State/NYSCOPBA agreement. They would be entitled only to the statutory Workers Compensation Benefits as ISU or OSU members, rather than the six months full pay benefit under Article 14.9 of the State/NYSCOPBA agreement. Moving the titles at issue into the ISU or the OSU units would essentially be turning the criteria established by Section 207.1 on its ear. PERB would be removing law enforcement titles from an entirely law enforcement unit and putting them in a non-law enforcement setting, where there would be far less of a community of interest. In this particular case, it seems only just that the standards for fragmentation of an existing unit be applied to these petitions rather than simply assuming that in a long-standing unit the introduction of interest arbitration for the majority of the unit would destroy the community of interest among the unit members. NYSCOPBA submits that the petitioners must still be required to establish compelling evidence of the need to fragment the unit, and that, consistent with PERB’s fragmentation decsions, a difference in impasse resolution procedures, standing alone, is not enough.
A. Initial uniting or accretion cases and the impact of differing impasse resolution procedures.
PERB has addressed the issue of the impact of differing dispute resolution processes among members of a collective bargaining unit in the context of establishing the scope of a new bargaining unit. PERB has held that “‘the difference in applicable impasse resolution procedures is a significant and important reason for defining a separate unit for police officers’ and fire fighters.” City of Lockport, 30 PERB ¶3049, (1997), citing, Village of Skaneateles, 16 PERB 3070, 3113 (1983). In City of Lockport, the Board refused to include the police chief and the fire chief in a new unit of department heads petitioned for by the employee organization. This decision was not, however, based only on the difference in impasse resolution procedures. The additional reason for not including the police and fire chiefs in the unit was PERB’s historical “‘recognition that policemen and firefighters are not only fundamentally different from everyone else but also that they are different from each other in ways that affect the essence of their labor relations.’” City of Lockport, supra, citing, City of Amsterdam, 10 PERB ¶3031, 3061 (1977). In the context of a unit placement petition, PERB has refused to include the newly created undercover unit supervisor title in a unit of employees in the titles of criminal investigator, senior criminal investigator, and criminal investigator-electronic surveillance because the new title was not eligible for interest arbitration. County of Rockland, 35 PERB ¶3004 (2002). While the Board held that combining titles that are not entitled to interest arbitration with titles that are eligible for interest arbitration was “inappropriate,” the cases cited in support of that conclusion are all either unit placement or initial unit scope cases which NYSCOPBA submits do not require proof of an actual conflict of interest or a failure to represent. B. Consistent with PERB precedent concerning fragmentation of existing units, dispute resolution differences alone have not been found to require the fragmentation of an existing unit.
In Village of Potsdam, 16 PERB 3032 (1983), the Board reversed a finding of the Director of Public Employment Practices and Representation that the differences in negotiation dispute resolution procedures between civilian and police members of an existing bargaining unit created “…a potential for conflict between the two groups sufficient to warrant removal of the civilian employees from the existing unit.” According to the Board, while the two groups were eligible for different impasse procedures, that factor alone was not dispositive of the issue. Instead, the Board remanded the case so that a record could be created showing whether the existing unit satisfied the standards of Civil Service Law §207(1), and if not, which alternative unit structures might do so. The bargaining unit in Village of Potsdam, like the SSU, had been in existence for a number of years. The bargaining unit representative, had it been given the opportunity, was prepared to prove that “harmonious relationships” in the unit had not been disturbed by the legislation, enacted approximately five years after the unit was established, making the police officers in the unit eligible for interest arbitration. This was exactly what the Board’s decision allowed. In Village of Skaneateles, 16 PERB ¶3070, another fragmentation case, there were clearly two factors involved in the Board’s decision (overruling the Director) severing four police officer titles from the existing blue collar unit of Village employees. The first, and clearly most important factor, was the fact that the titles at issue were police titles. The Board cited its “almost uniform practice” of establishing separate units for police based on two factors: (1) the unique community of interest among police officers derived from their law enforcement duties; and (2) the primary commitment of police officers to law enforcement as part of their employer’s fundamental mission to preserve public order, a commitment which exists “even in the event of a strike by other public employees.” Id. The Board went on to explain, however, that while differences in dispute resolution procedures could create pitfalls to stable labor relations, that difference alone did not mandate the fragmentation of the existing unit. Id. The Board’s decision in State of New York, 34 PERB 3038 (2001) does not require a different analysis. Essentially, after finding that the applicable titles in the SSU were police officers, the Board simply followed the line of cases culminating in County of Erie, 29 PERB ¶3031 (1996) that require separate bargaining units for individuals whose predominant duties are criminal law enforcement. Footnote 22 in State of New York also does not require a different analysis. In this footnote, the Board merely states that when deciding where to place the police titles fragmented from the SSU, placement in the State Police Unit was not considered because the State Police were eligible for different dispute resolution procedures.[4] The other class of cases in which PERB has fragmented an existing unit based, at least in part, on different dispute resolution procedures, involves joint employer units. For example, nonprofessional employees of community colleges have been removed from units of county employees on the ground that community colleges were, along with the county, joint employers of the college employees. See, e.g., County of Genessee, 24 PERB ¶3017 (1991); County of Niagara, 23 PERB 4052 (1990). The fact that there were different dispute resolution procedures applicable to county employees than those applicable to college employees was found to be another significant factor warranting fragmentation, but certainly not enough, standing alone, to do so. County of Niagara, supra, citing Village of Skaneateles, supra. The Board has never issued a decision in a fragmentation case that holds that the difference in dispute resolution procedures alone is a sufficient basis for removing titles from a long-standing unit. Doing so now would not only be inconsistent with precedent, it would be grossly unfair.
CONCLUSION For all the reasons stated in this memorandum of law, NYSCOPBA contends that the Administrative Law Judge may not fragment the SSU and remove the law enforcement titles only because of a difference in impasse resolution procedures, without first determining that there is a compelling need to fragment the unit based on the existence of a conflict of interest and on NYSCOPBA’s failure to adequately represent.
Dated: April 28, 2006 Respectfully submitted, SHEEHAN GREENE CARRAWAY GOLDERMAN & JACQUES LLP Attorneys for Respondent _____________________________ Nancy L. Burritt Of Counsel Office and P.O. Address 99 Pine Street, Suite 402 Albany, New York 12207 (518) 462-0110
-------------------------------------------------------------------------------- [1] This petition has been designated as PERB Case No. C-5339. [2] This petition has been designated as PERB Case No. C5443. [3] There is, of course, the obvious exception of police officers and fire fighters where the Board has historically found that the unique community of interest among police officers and among fire fighters requires that they be placed in a separate bargaining unit. None of the titles at issue in this proceeding are police or fire, and the line of cases involving police and fire units must be distinguished from this case. [4] The irony here is, of course, that after the decision to create the ALES unit now represented by Council 82, all of the titles in the ALES unit with the exception of the Forest Ranger titles were legislatively granted eligibility for interest arbitration, thus creating the very problem the Board was trying to avoid. |
