September 10, 2010

Creating new negotiating units

Creating new negotiating units
Erie County v PERB, Appellate Division, 247 A.D.2d 671

The Erie County v PERB case suggests that PERB has become more flexible regarding splitting sheriff’s department employees into separate collective bargaining units.

In Erie County Teamsters Local 264 represented a single large negotiating unit that included both Deputy Sheriff-criminal [“criminal deputies”] and Deputy Sheriff-officer [“officer deputies”] positions. The criminal deputies were primarily engaged in law enforcement activities while the “officer deputies” were assigned as guards at the County’s holding center and courts.

The Erie County Sheriff’s Police Benevolent Association [PBA] petitioned PERB seeking to establish a separate negotiating unit for the criminal deputies.

Ultimately PERB approved the establishment of this new “fragmented” unit for criminal deputies and certified the PBA as the exclusive negotiating representative for the new unit. In so doing, PERB reversed a finding by its Director of Public Employment Practices and Representation that “a separate and distinct law enforcement community of interest ... had not been established.”

The County and Local 264 appealed in an effort to have PERB’s determination [26 PERB 3069] annulled.

The Appellate Division said that although PERB had initially held that “deputy sheriffs are not appropriately fragmented from existing units which include other sheriff department employee,” citing County Association of Patrol Officers, 25 PERB 3062, it noted that PERB had reconsidered its earlier rulings on this issue.

The Court noted that in Dutchess County Sheriffs PBA, 26 PERB 3069, PERB “suggested that ‘the law enforcement responsibilities and duties of deputy sheriffs and other sheriff’s department employees may be sufficient to warrant the establishment of a separate unit of deputy sheriffs.’“

The Appellate Division sustained the establishment of a separate negotiating unit for the criminal deputies, holding that PERB ruling in Erie was “nothing more than a logical extension of its prior decision in Dutchess.”

The Court noted with approval PERB’s view that an analysis of the duties of positions warranted the establishment of separate negotiating unions. Here, it said, “even a cursory review” reveals the “distinguishing features of the class, training, typical work activities and the knowledge, skills and minimum qualifications required.”

The Court adopted PERB’s analysis, commenting that the documentary and testimonial evidence adduced at the hearing with respect to the differences in the Deputy Sheriff-criminal and Deputy Sheriff-officer title series fully supported PERB’s determination that only those employed in the Deputy Sheriff-criminal series “have criminal law enforcement as the exclusive or primary attribute of his or her employment.”

Nothing in the Appellate Division’s opinion, however, suggests that PERB applied the “community of interest” standard in determining negotiating units as set out in Section 207 of the Civil Service Law [the Taylor Law].

Section 207, in the pertinent part, provides that for the purposes of resolving disputes concerning representation status, PERB shall define the appropriate employer-employee negotiating units taking into account a standard that provides that: the definition of the unit shall correspond to a community of interest among the employees to be included in the unit. Nothing in Section 207 refers to determining negotiating units on the basis of “the respective job descriptions” of positions.

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