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July 07, 2011

PERB has exclusive jurisdiction to determine improper practice charge


PERB has exclusive jurisdiction to determine improper practice charge
Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v Westchester County, 35 AD3d 592, 828 N.Y.S.2d 412

Westchester County created three director positions in the Westchester County Department of Public Safety. It appointed three civilians to those positions rather than appoint “sworn officers” to the vacancies.

The Westchester County PBA sued, contending that because the positions involve the performance of traditional police functions, its members were deprived of positions that should have been reserved exclusively for them. In the words of the Appellate Division, “More precisely, [PBA] argues that it has an obligation to "preserve the work that its members perform." The PBA complained that the County is seeking to “circumvent" the collective bargaining agreement by creating what are, in essence, police positions, and staffing them with civilians.”

The Court said PBA’s underlying complaint is that the County committed an improper employer practice by its failure to bargain with it prior to the creation and relegation of work properly assigned within the bargaining unit to persons outside of it. Accepting PBA’s characterization of the nature of its case, the Appellate Division concluded that PBA’s action must be dismissed because resolving the improper labor practice charge it advanced is within the exclusive jurisdiction of the Public Employment Relations Board.

The decision noted that PBA, in an effort to maintain its law suit, argued that it had cited Civil Service Law § 209-a(1)(d) merely for the purpose of demonstrating standing but that the merits of this action were not within PERB's jurisdiction. The Appellate Division rejected the PBA’s “attempt to evade the consequences of its standing argument;” stating, “clearly, the [PBA] cannot have it both ways.”

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