PERB rules employer’s conducting a survey of unit members to determine if a recognized or certified collective bargaining agent should continue to represent the unit an improper employer practice

PERB rules employer’s conducting a survey of unit members to determine if a recognized or certified collective bargaining agent should continue to represent the unit an improper employer practice
Matter of Monroe County v New York State Pub. Empl. Relations Bd., 2011 NY Slip Op 05170

The Public Employment Relations Board found ruled that Monroe County had committed an improper employer practice in violation of the Taylor Law when it conducted a survey “to assess whether to hold a secret ballot election” to determine if CSEA should continue as the union representing certain of the County’s part-time employees.

CSEA had told Monroe that the CSEA unit for part-time employees was in administratorship, i.e., the CSEA local had taken over control of the part-time unit, because the unit no longer had any officers “to run it.”  Although Monroe had agreed to negotiate with CSEA concerning the part-time workers in the unit, it mailed all of its part-time employees represented by CSEA a letter and survey form underlying CSEA’s improper practice charge.

PERB affirmed its hearing officer’s determination that Monroe had "interfered with, restrained and coerced employees in the exercise of protected rights." Monroe appealed, seeking to annul PERB's determination while PERB counterclaimed seeking enforcement of its remedial order.

The Appellate Division concluded that substantial evidence supported PERB's determination that Monroe had violated Civil Service Law §209-a (1) (a) by conducting the survey. The court rejected Monroe’s claim that it was acting appropriately and was justified in sending out the survey based on a provision in the prior collective bargaining agreement.

The provision relied on by Monroe stated that CSEA's "representative status shall continue as long as it represents a majority of the bargaining unit employees, provided that if [Monroe County] receives evidence that thirty percent or more of the unit employees are questioning this status, the parties will conduct a secret ballot election conducted by PERB to determine representative status."

The Appellate Division ruled that PERB’s finding that this language did not provide Monroe with the authority to actively solicit employees' opinions regarding their potential dissatisfaction with CSEA's union representation nor did Monroe have authority under the regulations to seek decertification of CSEA was “rational.” It commented that courts give deference to PERB's interpretation of a collective bargaining agreement, which is within PERB's area of expertise, as long as that interpretation is reasonable, rational and supported by the language of the agreement.

Notwithstanding Monroe’s concerns regarding CSEA's ability to effectively represent its employees in the part-time unit, the Appellate Division decided that PERB “reasonably determined that this concern did not permit [Monroe County] to conduct a survey. Accordingly, said the court, PERB was entitled to a judgment of enforcement of its remedial order.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05170.htm

Pension benefits and marital property

Pension benefits and marital property

DeLuca v DeLuca, 97 N.Y.2d 139

Retirement benefits frequently are an important factor in a divorce. In the DeLuca case the Court of Appeals ruled that retirement benefits from the New York City Police Superior Officers Variable Supplements Fund [VSF] are marital property subject to equitable distribution in a divorce proceeding.

New York City Detective Crescenzo DeLuca divorced his wife, Maria, after 30 years of marriage. Before the divorce became final, DeLuca retired and began receiving VSF benefits in addition to his regular pension benefits.

A New York Supreme Court justice subsequently granted Crescenzo the divorce. As part of the equitable distribution of Crescenzo's assets, the court awarded Marie half of his past and future VSF payments. The Appellate Division, however, modified the award (276 AD2 143), holding that VSF benefits were not marital property on the theory that VSF benefits were not pension benefits under the City's Administrative Code Section 13-279[b].

The Court of Appeals disagreed, holding that the VSF was subject to equitable distribution in a divorce proceeding. The court said the VSF, along with its counterpart for police officers below the rank of sergeant ... were the result of contract negotiations between the City of New York and the unions representing police officers. In 1968, both sides jointly proposed legislation allowing the Police Pension Fund, whose pension investments were limited to fixed-income obligations, to invest some of its assets in equities, such as common stock, with the hope of creating higher earnings. The additional earnings could then be used as extra post-retirement compensation to attract qualified individuals and induce long-term service.

The Court of Appeals decided that whether VSF benefits constitute marital property cannot be determined by the Administrative Code provisions relied on by the Appellate Division but rather are to be determined pursuant to the relevant provisions of the Domestic Relations Law.

The general rule in such cases is that if the benefit is something of value and was earned in whole or in part during the marriage, it may be considered marital property subject to equitable distribution. Referring to Majauskas v Majauskas, 61 NY2d 481, the court pointed out that “rights in a vested but non-matured pension were marital property.”

Thus, said the court, formalized concepts such as “vesting” and “maturity” are not determinative in such situations, noting that in Olivo v Olivo, 82 NY2d 202, it ruled that compensation received after dissolution of the marriage for services rendered during the marriage is marital property.

In the words of the court, “VSF benefits are a supplement to pension fund payments and, as such, a form of compensation for past services related to the first 20 years of police employment, notwithstanding the date they mature.”

Also noted was the fact that although issues such as “vesting” and “maturity” do not raise serious obstacles to the determination that VSF benefits are marital property, they do affect valuation and distribution. 

In processing a grievance all procedural steps must be satisfied

In processing a grievance all procedural steps must be satisfied

Brown v Nassau County, 288 AD2d 216

The lesson in the Brown case: failure to follow the steps set out in a collective bargaining agreement's grievance procedure in a timely fashion may prove fatal to seeking further relief.

Larry Brown filed an out-of-title work grievance. When he and his union attempted to appeal the Step 3 determination of the Nassau County Office of Labor Relations [OLR], OLR rejected his grievance, saying that it was untimely. The Appellate Division agreed.

Brown's grievance was filed in accordance with a “five-step grievance procedure” set out in the collective bargaining agreement. OLR denied Brown's grievance at Step three and it appears that neither Brown nor the union proceeded to a Step four “advisory appeal” as set out Section 23-1.4 of the agreement.

According to the decision, the union made an untimely request that the County “schedule ... an arbitration date” following the County's unwillingness to stipulate to settle the dispute in accordance with the recommendation of a mediator.

The court noted that there was no proof that the County, in contrast to Brown and the union, the parties aggrieved by the Step 3 determination, was responsible for initiating the procedure at Step Four, or for the scheduling of the arbitration procedures.

Brown and the union sought a court order to compel arbitration of the grievance. The Appellate Division said that since there is no evidence that either Brown or the union ever timely “proceed[ed] to an advisory appeal” to either of the two alternative arbitral forums described in Section 23-1.4 of the parties' agreement, it agreed with the Supreme Court that, in light of this failure to complete the five-step grievance procedure, neither Brown nor the union could sue the County directly.

The simple answer: Had either Brown or the union followed the time requirement for perfecting the appeal to the next step, Step 4, the matter would have been subject to arbitration as permitted under the agreement.

Brown and the union also contended that they should not have been required to complete all five steps of the grievance procedure, because proceeding through all such steps would have been futile. The Appellate Division rejected this argument as being “without merit.”