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Unit decertification procedures

By Harvey Randall, Esq.

Unit decertification procedures
Town of Carmel PBA and Town of Carmel, 31 PERB 3046

Sometimes established negotiating units become temporarily defunct for the purposes of collective bargaining. The Town of Carmel case illustrates such a situation.

The Town of Carmel PBA filed a petition with PERB seeking to have the title lieutenant included in its unit that represented persons in the titles of patrolman, sergeant, detective and detective sergeant. This would involve the disestablishment of an existing negotiating unit comprised solely of the title lieutenant represented by the Federation of Police [FOP].

Although at one time the Town had two lieutenants on its police force, when the case was filed it had only one, Bruce Hart. PERB observed that ?even if Hart is currently the only person employed in the lieutenant?s title, this only means that the Town?s bargaining obligation to FOP is suspended until that unit includes two [or more] employees.?

PERB affirmed a decision by its Director of Public Employment Practices and Representation?s that excluded the title of lieutenant from the PBA unit because of a supervisory conflict of interest. The Director found that the lieutenant was the department?s second in command and performed ?a wide range of traditional supervisory functions.?

Existing unit structures, said PERB, should not be disturbed when the uniting change sought hinges on ?nothing more than timing? of the petition. It asked the rhetorical question:

What would happen if the Town hired another supervisory personnel --- should PBA also be designated to represent that incumbent or should the unit represented by FOP be reconstituted now that there are two employees to be represented?

According to the ruling, PERB would not be willing to consider disestablishing the unit represented by FOP unless there was a record demonstrating that there were no other employees with whom the lieutenant could share a community of interest and if there are no such other employees, that the Town plans the leave the second lieutenant vacancy ?permanently unfilled.?

In another decertification case, Matter of Hinds, 31 PERB 3049, PERB rejected a petition because it did not have a ?declaration of authenticity.? The decision indicates the importance of knowing and following PERB procedural rules.

William W. Hinds, II, had filed a petition asking PERB to decertify SEIU Local 200B as the bargaining agent for a unit of employees of the Jamesville-DeWitt Central School District. Hinds attempted to cure the defect in his petition by filing a declaration of authenticity on December 17, 1997. It was rejected because ?it had not been tied simultaneously with the petition and that a petition for decertification would now be untimely.?

PERB pointed out that its rules of practice required that a declaration of authenticity be filed simultaneously with the petition for decertification and being ?inexperienced and unfamiliar with PERB?s procedures is not a sufficient basis to accept a fatally defective petition or a petition that is untimely filed.?

Another factor that must be considered when reviewing a petition to sever some employees from an existing negotiating unit and place them in a new, or different, negotiating unit is that the Taylor Law requires that the ?most appropriate unit? standard be applied in making such a determination.

In contrast, the National Labor Relations Act uses a different, less stringent standard -- the ?appropriate unit? standard.

As a State Supreme Court judge pointed out in CSEA Local 800 [Nassau County] v Nassau County Public Employment Relations Board [July 1998], ?PERB has long held that ... the New York State Taylor Law requires the establishment of the most appropriate unit,? citing CSEA v Helsby, 25 NY2 842.

Full post as published by New York Public Personnel Law on January 31, 2008 (boomark / email).