Administrative Law Judge's Decision

In the Matter of

Putnam County Sheriff's Department

Police Benevolent Association, Inc.,

Charging Party,

and

County of Putnam

and

The Sheriff of the County of Putnam,

Respondents.

Case No. U-23036

35 NYPER (LRP) P4561

2002 NYPER (LRP) Lexis 159

June 17, 2002, Decided

On December 21, 2001, the Putnam County Sheriff's Department Police Benevolent Association, Inc. ("PBA") filed an improper practice charge alleging, as amended, that the County of Putnam and the Sheriff of the County of Putnam (together "County") violated §§ 209-a.1(a), (c) and (d) of the Public Employees' Fair Employment Act (Act) by unilaterally paying a unit employee, Deputy Sheriff Michael F. Corrigan, wages in excess of those provided under the parties' current collective bargaining agreement.

The County filed an answer denying many of the material allegations of fact, and alleging, as an affirmative defense, that the charge is untimely. The parties submitted the matter for decision on a stipulated record consisting of a brief statement of facts and exhibits. Each party filed a legal brief. [Fn. 1] In County of Suffolk Legislature and the County of Suffolk, [Fn. 2] the Board reaffirmed its long-held view that an employer violates the Act by unilaterally granting benefits to a represented employee in excess of those provided under an agreement.

There, quoting Connetquot Central School District [Fn. 3] and an earlier decision in County of Suffolk Legislature and the County of Suffolk, [Fn. 4] respectively, the Board reasoned: [Fn. 5]

"[T]he provision of benefits that are more than what is called for in a collective bargaining agreement is inherently destructive of a union's representation rights. It can be construed to give a message that the unit employees would do better if they abandoned their union." While there is no showing of animus in this stipulated record, we have found, in a previous case involving this respondent, that no showing of animus is necessary where the action involved is so destructive of the union's status that "the [Employer] must be deemed to have actual or presumptive knowledge that its action would be coercive."

Here, the parties stipulated that Corrigan, the only licensed pilot in the Sheriffs Department, has been flying for the department since 1994. Until 2001, Corrigan was paid for his flying services in accordance with the contractual overtime provisions. However, as stipulated: In October, 2001, the officers of the PBA discovered, for the first time, that Deputy Sheriff Corrigan is receiving a stipend in the amount, upon information and belief, of $6,300.00. The payment of this stipend is not authorized by any of the terms of the parties' collective bargaining agreement and is a benefit in excess of those negotiated by the PBA. The payment of this stipend was not agreed to or authorized by the PBA.

The payment of the stipend was made to Deputy Sheriff Corrigan and no other members of the . . .unit. Based on those stipulated facts, I find that the County violated §§ 209-a.1(a) and (d) of the Act by unilaterally granting a benefit to a unit employee in excess of those provided under the parties' agreement, unless there is merit to the County's defenses. The main thrust of the County's defense is that the charge is untimely. Although stipulating that the PBA first learned that the at-issue stipend was being paid in October 2001, the County argues that the PBA had constructive notice of the stipend long before that.

In that regard, the parties stipulated: In the fourth quarter of 2000, as part of the County Budget for calendar year 2001, the County Legislature for the County of Putnam passed a line item as part of the 2001 budget for the Putnam County Sheriff s Department which listed Michael F. Corrigan as receiving an Aviation Stipend of $6,300.00. The line item for an Aviation Stipend was also included in the budget for 2002. The Putnam County Budget is a public document and notice of its availability to the public was published in a local newspaper on or about the time of its passage by the County Legislature.

I find that the County's publication of a notice in a local newspaper advising that a budget is available for inspection by the general public does not constitute sufficient notice to the PBA, constructive or otherwise, to trigger the time within which a charge could have been filed regarding the payment of the stipend. While budgets adopted by a legislative body reveal appropriations, they do not reveal actual expenditures of funds by the executive. Indeed, the County affirmatively alleged in its answer that the 2001 and 2002 budgets merely authorized the payment of an aviation stipend. [Fn. 6]

However, because the duty to negotiate on behalf of a public employer is an executive function, it is the executive expenditure of funds, not the legislative appropriation, that gives rise to a violation such as that in issue here. [Fn. 7]

Therefore, even if the PBA were on actual notice of the legislative appropriation for the at-issue aviation stipend, it would not be on notice of a violation of the Act, much less trigger the time within which a charge could be filed pursuant to § 204.1(a)(1) of PERB's Rules of Procedure. Because the parties stipulated that it was not until October 2001 that the PBA first learned that the appropriated stipend was actually being paid, the charge is timely. [Fn. 8] The County also argues that PERB lacks jurisdiction over the dispute because it involves the enforcement of the parties' collective bargaining agreement which, it emphasizes, does not provide for an aviation stipend. [Fn. 9]

In essence, the County argues that the PBA is seeking to enforce the agreement by requiring the County to pay the contractual wages only. Indeed, in City of Newburgh, [Fn. 10] the Board held that it lacked jurisdiction over a dispute where the City added a step to the parties' contractual GML § 207-a procedure. As here, the subject of the dispute in Newburgh was more than what the contract required. However, unlike Newburgh, here the County's conduct also constitutes an independent violation of § 209-a.1(a). [Fn. 11]

Therefore, the County's failure to strictly abide by the terms of the contract "otherwise constitute[s] an improper employer . . .practice" [Fn. 12] over which PERB has jurisdiction. So, even if I were to accept the County's jurisdictional claim with respect to the "d" violation, it would be a pyrrhic victory, at best. In any event, the Board has held that the unilateral grant of a benefit in excess of that which is provided under an agreement is a violation of § 209-a.1(d). [Fn. 13]

Therefore, I find that the County violated § 209-a.1(a) and (d) of the Act by unilaterally paying a unit employee, Michael F. Corrigan, wages in excess of those provided under the parties' agreement, in the form of an aviation stipend. I find, however, no evidence from which to conclude that the County violated § 209-a.1(c). Such a violation requires proof that the County engaged in discriminatory conduct "for the purpose of" discouraging or encouraging the exercise of protected rights. [Fn. 14] Although Corrigan is the only person to receive the aviation stipend, he is also the only licensed pilot in the department.

Moreover, among the documents that the parties stipulated into the record is the Sheriffs application to the County Legislature to fund the stipend. [Fn. 15] Uncontroverted, the application shows that the Sheriff wished to enhance Corrigan's wages due to the cost of obtaining a pilot's license and the risks associated with flying for law enforcement. While the absence of evidence of unlawful intent does not defeat the "a" and "d" violations, it defeats the "c" violation.

THEREFORE, the County of Putnam and the Sheriff of the County of Putnam are hereby ordered to immediately cease paying Michael F. Corrigan an aviation stipend other than that which is negotiated with the Putnam County Sheriffs Department Police Benevolent Association, Inc., and to sign and post the attached notice at all locations customarily used to post notices to unit employees.

David P. Quinn

Administrative Law Judge

1. The County filed a reply brief, which, because it was unsolicited, I have disregarded. See PERB's Rules of Procedure, § 212.5.

2. 34 PERB 3034 (2001).

3. 19 PERB 3045, at 3097 (1986).

4. 15 PERB 3021, at 3036 (1982).

5. Supra note 2, at 3080.

6. Answer 16. Notably, attached to the stipulation are "print outs" of the 2001 and 2002 budgets for the Sheriffs Department. See, Stipulation, Exhibit F. The 2001 budget, dated November 30, 2000, contains a "proposed" aviation stipend of $6,300.00. The 2002 budget, dated December 18, 2001, after the PBA first learned that the stipend was being paid, provides a $6,300.00 aviation stipend for Officer Corrigan.

7 Cf., Odessa-Montour Cent. Sch. Dist. v. PERB, 228 A.D.2d 892, 29 PERB 7009 (3d Dep't 1996) (Court held that, because the duty to negotiate is an executive function, a resolution by a school district's board of education cannot constitute a refusal to negotiate, as a matter of law). However, the Board has held that where a county legislature itself grants benefits in excess of those provided under a collective bargaining agreement, the legislature's action alone can be a violation of § 209-a.1(a). See, County of Suffolk and Suffolk County Legislature, supra notes 2 and 4. In those cases, a charge complaining of the legislative action filed more than four months later would be untimely. Here, only the payment of the stipend is alleged to violate the Act.

8. I need not treat with the PBA's assertion that there is a continuing violation occasioned by the County's bi-weekly payments of the stipend.

9. Section 205.5(d) of the Act provides that the Board "shall not have authority to enforce an agreement between an employer and an employee organization and shall not exercise jurisdiction over an alleged violation of such an agreement that would not otherwise constitute an improper employer or employee organization practice."

10. 31 PERB 3044 (1998), reversed sub nom. Local 589 Intn'l Assn of Fire Fighters v. Cuevas, 32 PERB 7002 (Sup. Ct. Orange County 1999), rev'd, 271 A.D.2d 535, 33 PERB 7004 (3d Dep't 2000).

11. See e.g., Connetquot Cent. Sch. Dist., supra note 3.

12. Act, § 205.5(d).

13. See, e.g., Connetquot Cent Sch. Dist., supra note 3.

14. Act, § 209-a.1(c).

15. Stipulation, Exhibit G.

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