Summer Update

Trevett Cristo Salzer & Andolina P.C.’s

Union Update Vol. 1 Lawrence J. Andolina, Esq. Daniel P. DeBolt, Esq.

July 2009 Two State Street, Suite 1000 Rochester, New York 14614

Welcome to the Union Update! This is the first edition of the Trevett Cristo Salzer & Andolina P.C. Union Update. This newsletter, which will be published periodically, is intended primarily for the officers and members of the various law enforcement, corrections and firefighter unions in Western New York. In each edition, you will find discussions of recent cases or legislation effecting public sector employees and unions in New York State, with a particular emphasis on those issues which uniquely apply to police officers, corrections officers, deputy sheriffs and firefighters. It is also our hope that this newsletter will serve as an effective forum for sharing information. In many cases, unions are facing the same or similar challenges, and whether it is devising strategies for dealing with increased health care costs in the context of contract negotiations, or dealing with a new tactic by an employer attempting to avoid providing coverage for line-of-duty injuries, exchanging ideas and information is always beneficial. By discussing issues which are becoming a problem in one union, we may be able to avoid the same issue becoming a problem for other units.

Telephone: (585) 454-2181 Facsimile: (585) 454-4026

Inside This Edition Welcome

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Who We Are

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Legislative Update

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Recent PERB Decisions

4

Know Your Rights

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Common Issues

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Miscellaneous

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In addition to addressing other timely issues, each edition will also include a section called Know Your Rights. This section will focus on a specific issue or aspect of the law and discuss its impact on the workplace. For long-time members or officers, these issues will likely be well-known, but hopefully new members or those just becoming involved in a union will find this information helpful.

Who We Are Although most union officers reading this newsletter, along with some union members, will be quite familiar with us, we recognize that others may be wondering who we are. continued on page 2 …

Please visit our newly redesigned website at www.trevettlaw.com

Trevett Cristo Salzer & Andolina P.C. is a multi-service law firm located in Rochester. We currently have 19 attorneys practicing in virtually every area of law. Partner Lawrence J. Andolina and Associate Daniel P. DeBolt practice in the area of public sector labor law, with a particular focus on representing police officers, corrections officers, deputy sheriffs and firefighters. We currently serve as legal counsel for many local unions representing these employees, providing services ranging from individual employee grievances or disciplinary actions to collective bargaining and proceedings before the Public Employment Relations Board, state and federal courts. We strive to provide our clients, whether unions or individual employees, with outstanding legal services tailored to their specific needs. We recognize that in many respects the needs of a unit in a small Village police department may be significantly different from the needs of a unit with several hundred members, as are their available resources. Our knowledge and experience enable us to provide each union with the advice and services that enable it to best represent its members.

Larry graduated from Boston College in 1970 and received his law degree from Albany Law School of Union University in 1974. After serving as an Assistant District Attorney in Monroe County from 1975-1978, he went into private practice. He began representing public sector unions in 1980, when he became counsel for the Rochester Police Locust Club, the union representing City of Rochester Police Officers. Since that time Larry has continued to represent public sector unions in all aspects of their dealings with employers, from collective bargaining to disciplinary proceedings and proceedings before the Public Employment Relations Board, state and federal courts.

Daniel P. DeBolt

Lawrence J. Andolina

Dan is a 2000 graduate of the School of Industrial and Labor Relations at Cornell University and received his law degree in 2003 from the Georgetown University Law Center. He began as an associate at Trevett after passing the bar exam and immediately began working with Larry to represent the firm’s union clients. He continues to focus his practice on representing public sector unions and handles the processing of contract grievances and arbitrations, improper practice charges with PERB, and assisting in the negotiation and interest arbitration processes. He also frequently represents the interests of individual 2

union members in court proceedings where they have wrongfully been denied disability coverage for line-of-duty injuries.

by the employer to be challenged through the contractual grievance procedure, as opposed to requiring a civil action.

Other Services

For-Profit Fire Protection (A533)

While we focus on representing unions and employees, the Trevett Cristo firm provides services across the legal spectrum. Our attorneys also practice in the areas of personal injury, criminal defense, bankruptcy, matrimonial, business and real estate.

A bill has been introduced in the Assembly which would prohibit municipalities from contracting with a private for-profit entity to provide fire protection services for its residents. This represents a renewal of a long-standing attempt to enact such legislation, which began in the late 1990’s, following a failed experiment with such privatization in the Village of Rye Brook, Westchester County. After initially dying in committee, the bill passed both the Senate and Assembly on multiple occasions from 2003-2007, only to be vetoed three times by Governor Pataki and once by Governor Spitzer. At this time the bill has been referred to the Assembly Committee on Governmental Operations, and will hopefully receive more favorable consideration if it again makes its way to the Governor’s desk.

Legislative Update Cancer Screenings Although the change took effect at the end of last summer, many public employees may still not be aware that the law now specifically provides for paid time away from work for the purpose of certain cancer screening tests, without needing to utilize accrued leave credits. Last year the Legislature amended Civil Service Law §§ 159-b and 159-c to require most public employers to provide employees with a paid leave of absence, of up to four hours annually, for purposes of prostate (Section 159-c) or breast cancer (Section 159b) screenings. Previously, the statutes had granted many public employees the right to take such leaves, but had been silent as to whether or not such leave had to be paid. However, while the paid nature of the leave is now settled, the statute does not specifically address several important issues with respect to implementation, such as whether or not the employer has any discretion to dictate when employees may take such leave, or how much advance notice the employee must provide. Therefore, it may be beneficial to address these issues through collective bargaining. Additionally, thought should be given to including the statutory rights to such leave within collective bargaining agreements. Inclusion of the statutory language in a CBA would have the benefit of permitting a breach

Fees for Emergency Medical Services (A4310) A bill has also been introduced in the Assembly which would permit local governments to charge individuals for emergency medical services. Currently, the general municipal law provides that such services “shall” be provided free of charge to the individual. The proposed bill would amend the statute to read “may” be provided free of charge and to specifically permit municipalities, except those with a population of 1 million or more, to establish a schedule of applicable fees. The bill is 3

currently in the Assembly Committee on Local Governments.

increased danger to the public and law enforcement personnel.

Recent PERB Decisions Lieutenant Placed in Firefighters Unit

Many Fire Departments provide emergency medical services and this proposed legislation could obviously increase the revenue received for such services. For bargaining units providing these services, that revenue is an important factor in negotiations and, potentially, interest arbitration.

The St. Paul Professional Firefighters Association successfully petitioned PERB to have a newly created Lieutenant position placed within the firefighters bargaining unit. After a hearing, Judge Jean Doerr, one of the two ALJ’s assigned to PERB’s Buffalo office, found that a sufficient community of interest existed and that there was no inherent conflict because the Lieutenant did not have the authority to hire, fire, evaluate or discipline firefighters. 41 PERB 4014.

Union Steward’s E-mail Protected College Tuition Credits for Children of Disabled Firefighters and Police Officers (A2204) Local

Local Assemblyman Joseph Morelle has introduced a bill which would provide children of permanently disabled firefighters and police officers with a credit for up to the full cost of college tuition at any SUNY or CUNY school.

An identical bill has been introduced in the Senate (S2944) by Senator Nollozio. Ban on Bullet Proof Vests (A2887) Assemblyman David Koon has introduced a bill which would ban the purchase or sale of protective body vests, except to law enforcement or military personnel. The sponsor’s memorandum cites reports by district attorneys and law enforcement personal indicating an increase in the use of such vests by drug dealers and other criminals, posing an

In the Matter of New York State Correctional Officers and Police Benevolent Association, 41 PERB 3033, the Board addressed two important issues: the circumstances necessary for a deferral of an improper practice charge to arbitration and the protected nature of an e-mail from a union steward to his members. The case involved disciplinary charges which had been brought, and partially upheld, against a steward of a union representing warrant and transfer officers. In addition to the contractual arbitration of the disciplinary charges, the union brought an improper practice charge contending that the discipline was improperly motivated retaliation against the steward for protected activity. There had been some uncertainly between the parties as to whether or not unit members were to report for work on holidays which fell on a regularly scheduled work day, thus entitling them to premium pay, or whether they were only to report if they received a specific assignment for that day. Just before Election Day, which was a holiday under the CBA, the 4

union steward sent an e-mail to unit members, while off-duty and from his personal e-mail account, advising that they should report to work and put in a request for premium pay. The employer interpreted the agreement differently, and brought charges against the steward, some of which related to the e-mail and reporting to work on Election Day and some of which were unrelated tardiness and improper conduct issues. Another member who followed the steward’s advice and reported to work was not disciplined after agreeing to waive any claim for premium pay.

other members to engage in protected activity, even if his or her interpretation of the applicable contract provision might later turn out to be incorrect. As a side note, it is important to keep in mind that the activity encouraged by the steward in this case was for members to report to work on a day when it was unclear whether they were to report or not. Given the Taylor Law’s strict no-strike provisions, this case may well have been decided differently if the advice had been not to report to work.

On exceptions from the ALJ’s decision, the Board held that, while it was not always impermissible, in this case it was not appropriate to defer the improper motivation charge in reliance on the arbitration of the disciplinary matter, as that issue was not squarely addressed by the stipulated issues for arbitration and thus would not be fully litigated.

(Some) Police Discipline Prohibited Subject / GML § 207-c Procedures Mandatory________

The Board then went on to find that the steward’s e-mail constituted protected activity under the act and could not form a basis for disciplinary action. The Board reiterated that mere inaccurate statements by an employee are protected under the Act, unless there is a showing that they were deliberately made with knowledge of their falsity, were maliciously aimed at harming the employer, or if the conduct is deemed overzealous, confrontational or disruptive. In this case, the interpretation of the agreement was unsettled and there was no evidence of any intent by the steward to cause disruption or harm to the employer. Rather, the e-mail merely encouraged the unit members to engage in concerted activity by reporting to work and seeking premium pay. Thus, the e-mail could not form the basis of a disciplinary charge. However, while noting that the timing suggested possible improper motivation behind the unrelated charges, the Board found that the employer provided sufficient nondiscriminatory reasons for bringing those charges. The primary importance of this case is in confirming that an employee may not normally be disciplined for giving advice or encouraging

ALJ Lynn Fitzgerald, the other ALJ out of the Buffalo office, recently issued a decision addressing the mandatory nature of several negotiating demands made by a union representing police officers. In the improper practice proceeding, which had been brought by the City of Middletown to challenge the union’s submission of several demands to binding interest arbitration, Judge Fitzgerald found that union demands concerning a bill of rights for members and concerning disciplinary procedures were prohibited subjects of bargaining. While such subjects are normally mandatory, including for police officers, PERB and the courts have found them to be prohibited subjects where disciplinary authority is specifically vested by statute or City Charter in either the Chief of Police of a Board of Commissioners, which was the case in Middletown. However, Judge Fitzgerald found that the union’s demand regarding the processing of, and appeal from, applications for benefits under GML § 207-c was mandatory, as it did not infringe on any of the rights provided to the employer by the statute. Specifically, she rejected a claim by the City that the time limits at each stage of the process, including on the initial determination, limited the City’s ability to gather evidence and make the initial determination. On its face, the demand simply affected when materials could be considered, and the City’s claim that the 15 day time limit 5

for the initial determination did not provide sufficient time to gather and review medical records and potentially arrange for a medical exam went to the merits of the proposal and should be addressed to the interest arbitrator. The fact that the demand specified other contractual benefits which officers would receive while on GML § 207-c status also did not render it nonmandatory, as the statute is silent on that issue. 42 PERB 4502.

Unilateral Change to Off-Duty Drinking Policy Violated the Act_______________________ An ALJ found, and the Board affirmed, that the City of Albany committed an unfair practice by unilaterally changing its disciplinary rules to prohibit police officers from consuming any alcoholic beverage within eight (8) hours of beginning a shift. The prior rule had merely prohibited officers from to reporting to work under the influence of alcohol. The ALJ rejected the City’s argument that the issue was not a mandatory subject because it was an act taken in furtherance of its mission, finding that the City had presented no evidence of a problem necessitating the rule change, nor that it adopted the least intrusive means of addressing the issue. 41 PERB 4512.

Know Your Rights The primary source of collective rights to public employees in New York is the Public Employees’ Fair Employment Act, commonly known as the Taylor Law. Among the important rights conveyed by the Act is the right to union representation at any interview which the employee reasonably believes may potentially lead to disciplinary action. This right is commonly referred to as one of an employee’s Weingarten rights, after the federal National Labor Relations Board case which

established the right for purposes of federal law in the private sector. Initially, there was some uncertainly as to whether or not this important right was conveyed to New York public sector employees by the Act. Although PERB has consistently held that the Act did convey such a right, in 2007 the New York State Court of Appeals disagreed, finding that such a right to representation was not included within the Taylor Law. See New York City Transit Auth. v. NYS PERB, 8 NY3d 226 (2007). Thankfully, the Legislature responded swiftly (which is always surprising), amending the Act to specifically provide that it is an improper practice for an employer to refuse a request by an employee for union representation at an interview which the employee reasonably believes may result in discipline. It is important to note, however, that the burden is on the employee to demand such representation. Unless required by a collective bargaining agreement, the employer does not need to advise the employee that he or she has the right to representation.

Common Issues It is often the case that we see a particular issue suddenly become a problem for several different unions within a relatively short time period. Keep in mind that public employers, just as unions do, communicate and share information. In this part of the state many public employers are also represented by a small number of law firms, meaning that if a particular defense or course of action is successful for one employer, we can expect to see the same from other employers. This section is designed to make our readership aware of such issues so they may take appropriate actions. Reporting Injuries: Although not a new issue, we have recently dealt with a significant number of GML § 207-a / 207-c cases where benefits have been denied based, at least in 6

part, on the fact that the injury was not immediately reported. In most of these cases the member did not believe that the injury was serious and thought it would resolve itself with a few days of ice and some Advil. When it became apparent that the injury was more serious, anywhere from a few days to a month later, the employers denied benefits. In some of these cases we have been successful in going to court and obtaining benefits, but not in all. And of course the unions would prefer not to incur the cost of such legal proceedings. This can be avoided. All members should be reminded of the importance of filing an injury report immediately, even where it is not believed to be serious. Especially in the current economic situation, employers will be looking for any excuse to deny GML § 207-a/207-c benefits – don’t assist them by failing to file a timely report of an injury.

Miscellaneous Increase Your Bargaining Power In the ongoing struggle to ensure a fair wage, decent benefits and a modicum of job security, French workers have adopted a new strategy in their negotiations with management. This Spring, it was reported that workers at a 3M plant south of Paris held their manager hostage overnight in response to a plan to layoff half of the workforce. A union representative told the Reuters news service: “Until we have a

commitment from 3M that they will increase pay-packets and are ready to discuss our conditions for negotiations, then [the manager] will have to remain here. If he wants to involve the police, then he will have to send for them, but it is out of the question that he leaves without discussing our conditions.” This is not the first such incident in France, and the police seem reluctant to become involved. Earlier in the month, unhappy workers at a Sony factory in southwest France detained the human resource director overnight and were successful in securing improved terms for those workers being laid off. Obviously we cannot, tempting as it may sometimes be, encourage such a practice. However, should anyone decide to employ such a tactic, please keep in mind that our firm also provides excellent criminal defense services!

Wrap Up We hope you’ve enjoyed this first edition of the Union Update. Please feel free to copy and distribute this newsletter among your membership, or even to those outside your unit. As always, please do not hesitate to contact us with any questions or problems you may be encountering. Please also let us know if you have any thoughts or suggestions for improving this newsletter. If there are specific issues you would like to see discussed in future issues, or if you have a particular recent event or information which you would like to share with the rest of our readership, please let us know. Comments or suggestions should be directed to Dan at 454-2181 or [email protected] “An injury to one is an injury to all.” - Industrial Worker’s of the World 1905 Founding Convention

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