Joint employers
Putnam County Sheriff’s OMA v Putnam County, 33 PERB 3001
Who is the employer of the personnel serving with the Putnam County Sheriff’s Department? Putnam County contended that the county is the sole employer of Sheriff’s Department personnel while the Sheriff argued that he and the county were “joint employers” of these employees.
The issue arose when the Putnam County Sheriff’s Office Managers Association [OMA] filed a petition seeking certification as the exclusive bargaining agent for a unit consisting of lieutenants, captains and a chief criminal investigator employed by the “Office of the Sheriff.”
The county filed a response claiming that it was the sole employer of these employees and that they were managerial employees and thus not entitled to representation rights under the Taylor Law.
The sheriff also filed an answer in which he said that he and the county were “joint employers” of these employees and that he believed that certifying OMA to represent a negotiating unit consisting of these employees was appropriate.
Reversing a determination by its administrative law judge [ALJ], PERB ruled that the sheriff and the county were “joint employers” for the purposes of the Taylor Law.
PERB’s rationale: holding that the county was the sole employer would “relieve elected sheriffs of their right and duty to negotiate under the Act and it could elicit petitions to consolidate some or all of the titles in existing sheriffs department units with county-wide units, often the very units from which they were fragmented in the first place.”
This is not a new concept: in County of Ulster v Ulster County Sheriff, 3 PERB 3032, a case decided in 1970, PERB ruled that the county and the sheriff were joint employers and separate bargaining units for the sheriff’s department were appropriate.
What distinguishes the Putnam County sheriffs from other Putnam county governmental unit heads? The sheriff is an elected official and can only be removed by the Governor while other county unit heads serve at the pleasure of the county executive.
In contrast to the status of an elective sheriff, whom PERB characterized as an “executive officer,” PERB said that an “appointed sheriff” is “essentially a department head.
Accordingly, the elected sheriff has independent status as a joint employer. PERB had addressed this difference in Nassau County v Nassau County Sheriff, 25 PERB 3036. This is consistent with the general rule that an appointing authority’s power to appoint implies the power to remove, while the elective sheriff is a Constitutional office and subject to different removal procedures.
Turning to the ALJ’s ruling that “the at-issue employees” are not managerial, PERB said that the employees are “high-level supervisors akin to the clerks of the Court of Appeals and the Appellate Divisions, First and Second Departments. PERB concluded that despite their role in personnel and policymaking determinations, the clerks were neither managerial nor confidential employees.