New York Public Employment Relations Board

Administrative Law Judge’s Decision

In the Matter of

Police Benevolent Association of the

New York State Troopers, Inc.,

Charging Party,

and

State of New York

Division of State Police,

Respondent.

39 NYPER (LRP) P4547

2006 NYPER (LRP) Lexis 66

Case No. U-22830

April 4, 2006, Decided

David P. Quinn

Administrative Law Judge

Decision of Administrative Law Judge

On September 5, 2001, the Police Benevolent Association of the New York State Troopers, Inc. (PBA) filed an improper practice charge in which it alleged that the State of New York (Division of State Police) (State) violated §§ 209-a.1(a), (c) and (d) of the Public Employees’ Fair Employment Act (Act) when it denied a unit employee access to a PBA official during an investigatory interview concerning the employee’s involvement in a “critical incident.” The PBA alleges that the denial was based on a new, unilaterally imposed critical incident policy. The State filed an answer denying many of the material allegations of fact and any violation of the Act. It also alleged that the dispute should be deferred for a jurisdictional determination because the PBA filed a grievance concerning the State’s action under the parties’ collective bargaining agreement.

Procedural Background

In an Interim Decision, I observed: n1

[I]f the charge had alleged a violation of § 209-a.1(d) only, I would summarily defer the matter under Herkimer County BOCES, 20 PERB 3050 (1987). Although the circumstances under which an employee must participate in an employer’s investigation into his or her misconduct are mandatorily negotiable [citing Patchogue-Medford Union Free Sch. Dist., 30 PERB 3041 (1997)], the fact that the PBA filed a grievance concerning the conduct at issue here suggests that it may have a reasonably arguable source of right under the collective bargaining agreement.

However, because the Board has plainly held that it will not defer a dispute concerning an alleged breach of contract where the conduct is a cognizable per se violation of § 209-a.1(a), n2 the only issue before me was whether the instant charge made out such a violation. Noting that the Board had not yet conclusively treated with the issue, n3 I found that the charge made out a cognizable violation of § 209-a.1(a), contrary to decisions of the prior Director and Assistant Director of Public Employment Practices and Representation, n4 but in accord with decisions of other Administrative Law Judges, albeit on a slightly different analysis. n5

Therefore, I declined to defer the matter. On exceptions, the Board affirmed. Indeed, it held that it was unnecessary for me to have analyzed the issue at all, because “[t]here are a number of ALJ decisions that have held that [such] rights are guaranteed by 202 of the Act,” n6 notwithstanding the contrary decisions of the prior Director and Assistant Director. Therefore, it remanded the matter for further proceedings.

Although the dispute was not appropriate for deferral, the Assistant Director of Public Employment Practices and Representation, to whom it was assigned for further processing, placed it on hold until the PBA’s grievance could run its course. The charge was later deemed withdrawn by the Director in a letter dated July 28, 2005, but reopened in response to a letter from the PBA dated December 22, 2005. Significantly, the PBA withdrew the alleged violations of §§ 209-a.1(a) and (c), seeking only to pursue the alleged “(d)” violation. The matter was then reassigned to me. Facts

Because only the “(d)” violation is pending, I inquired of the parties why the dispute should not be deferred as indicated in my Interim Decision. In response, the PBA provided a copy of the arbitrator’s award, dated July 5, 2002. It argued that the arbitrator did not address whether the State’s promulgation of a new critical incident policy breached the parties’ agreement.

The State supports deferral, emphasizing that the new critical incident policy was before the arbitrator. The arbitrator held that the State did not breach the collective bargaining agreement. As relevant here, he considered Article 16.2(D)(8) of the agreement, which states: In all cases wherein a member is to be interrogated concerning an alleged violation of the Division Rules and Regulations, which, if proven, may result in the member’s dismissal from the service or the infliction of other disciplinary punishment upon the member, the member shall be afforded a reasonable opportunity and facilities to contact and consult privately with an attorney of the member’s own choosing and/or a PBA troop representative before being interrogated. According to the arbitrator:

[The grievant] was not accused of any violation of the Division Rules and Regulations, nor was he in any way a target of discipline. He was, therefore, not entitled to Union representation prior to and during the interview as asserted by the Union. If it had not already been established that [the at-issue employee] was absolved of any responsibility for the accident, the PBA’s case would have merit. The critical aspect in the instant case is the fact that [grievant and the Union representatives] were informed that [the at-issue employee] was not a potential target of discipline. [The PBA’s representative was] offered [an] opportunity to be present at the interview of [the grievant] without participation, but he declined.

Simply put, noting that unit employees are contractually entitled to union representation during investigatory interviews that could result in discipline, the arbitrator held that the State did not deny such representation to the at-issue employee. Contrary to the State’s argument to me, the arbitrator did not address whether the State unilaterally promulgated a new critical incident policy or, if it did, whether such conduct breached the parties’ collective bargaining agreement. Discussion

Executive Law § 215(3) provides, in relevant part: “The superintendent [of the Division of State Police] shall make rules and regulations subject to approval by the governor for the discipline and control of the New York state police. . . .” Relying on that provision, in State of New York (Division of State Police), n7 the Board held that disciplinary procedures for the at-issue unit employees are prohibited subjects of negotiations. As such, contractual obligations concerning those subjects are unenforceable. n8

Significantly, among the subjects at issue there was the right of employees to obtain access to PBA representatives during investigatory interviews concerning critical incidents under a critical incident policy set forth in “Rule 3” of the State’s Administrative Manual. Here, the State argues that the parties’ agreement provides the PBA a reasonably arguable source of right concerning unit employees’ ability to obtain access to a PBA representative during an investigatory interview under the new, allegedly unilaterally imposed critical incident policy.

However, because the subject is a prohibited subject of negotiations, the PBA cannot enforce the associated contractual rights, as a matter of law. Therefore, the limitation on PERB’s jurisdiction under § 205.5(d) of the Act is not implicated. Accordingly, I find that PERB has jurisdiction over the at-issue dispute. However, because the Board has held that the subject is a prohibited subject of negotiations, the charge must be dismissed. THEREFORE, the charge is hereby dismissed in all respects.

Notes:

1 35 PERB 4554 (2002) at 4670.

2 See, Schuler-Chemung-Tioga BOCES, 34 PERB 3019 (2001).

3 See, New York City Transit Auth., 31 PERB 3024 (1998); County of Alleghany, 27 PERB 3013 (1994); City of New York, Department of Investigation, 9 PERB 3047 (1976), confirmed sub nom. Sperling v. Helsby, 60 AD2d 559, 10 PERB 7021 (1st Dep’t 1977).

4 See, City of Watervliet, 32 PERB 4595 (1999); New York City Trans. Auth., 28 PERB 4597 (1995), Depew Union Free Sch. Dist., 21 PERB 4558, aff’d on other grounds, 21 PERB 3043 (1988) (Director); New York City Transit Auth., 19 PERB 4618 (1986) (Assistant Director).

5 See, New York City Transit Auth., 30 PERB 4655 (1997), rev’d on other grounds, 31 PERB 3024 (1998); City Sch. Dist. of the City of Buffalo, 28 PERB 4582 (1995); Gates-Chili Cent. Sch. Dist., 25 PERB 4683 (1992); City of New York, Department of Investigation, subsequent history cited at note 3, supra.

6 State of New York (Division of State Police), 35 PERB 3031, at 3087 (2002).

7 38 PERB 3007 (2005), reversing 37 PERB 6601 (2005), petition for review pending.

8 See, e.g., Patrolmen’s Benevolent Assn of the City of New York v. New York State Public Employment Relations Board, NY2d , 39 PERB 7006 ( 2006) . But see, Fortune v. State of New York, Div. of State Police, 293 AD2d 154 (3rd Dep’t 2002) (Court held that the State/PBA collective bargaining agreement concerning disciplinary procedures contained an enforceable waiver of constitutional rights).