2009-2010 SUMMARY & ANNUAL REPORT
Vol. 43, No. 2 – February – April 2010
Vol. 43, No. 2 – February – April 2010
This year, I have chosen to dispense with the tradition of utilizing this column to address current developments or to predict challenges anticipated over the next year. Instead, I have decided to write about Dr. Robert D. Helsby, who successfully navigated PERB through the initial challenges in New York State public sector labor relations over 40 years ago. He accomplished this by instilling public confidence and respect in the agency. Traditionally, a Chairman’s column addresses developments from the past year. My comments are intended to reinforce PERB’s continued commitment to integrity, independence, and dedication to finding balanced solutions to the problems facing us today and in the future.
Robert D. Helsby (Bob, to everyone), was the first PERB chairman. Prior to his tenure at PERB, Bob served in the Navy as a skipper of a PT Boat during W.W. II and later served during the Korean War. Having been an administrator at SUNY Oswego, he enrolled in Cornell ILR, from which he earned a Doctorate in Education. After Dean Catherwood was appointed Labor Department Commissioner, he hired Bob as the Executive Deputy and chief administrator of that Department. Bob left the Labor Department when the head of the State University of New York invited him to work on a project to reduce education costs by expanding the academic role of community colleges. After that project was aborted, Governor Nelson Rockefeller asked Bob to head PERB.
Bob had relatively little knowledge or experience regarding labor relations and declined the offer, but the Governor pursued him, refusing to take “no” for an answer. Despite other candidates with far better labor relations credentials, the Governor felt that Bob’s administrative experience was essential to PERB’s success. In this, Governor Rockefeller was prescient. Bob consulted with NLRB Regional Director Samuel Kaynard to determine the kind of a staff that PERB would need. Bob then embarked upon extensive negotiations with the Department of Civil Service and the Division of the Budget to staff the agency with people with the necessary skills and qualities needed. But for his abilities and determination, PERB would probably have been staffed with less qualified individuals.
The ever-exuberant Helsby was a cheerleader for PERB’s staff; I cannot recall a public appearance by him during which he did not boast about its quality and diligence. And his enthusiastic leadership was directed at attracting attention to PERB and its staff. In connection with PERB’s first anniversary, Bob organized a three-day National Conference on Public Employment Relations at the New York Hilton Hotel. Speakers at the conference included the Governor and scholars from throughout the country, followed by reactions from prominent spokesmen for public employers and employee organizations in New York State. Less than three years later and with the cooperation of the International Labour Organization, Bob hosted an International Symposium on Public Employment Labor Relations. This three-day program was also held in New York City, with speakers from all over the globe, including the United States Secretary of Labor and a former Prime Minister of Great Britain.
PERB and its staff basked in the glory of Bob’s ambitious and successful programs, the last of which envisioned a Society of Professionals as neutrals engaged In Dispute Resolution that he called SPIDR. Organized in 1972, it was to be an umbrella organization of mediators, fact finders and arbitrators throughout the United States and Canada, whether working for federal, state/ provincial governments or self-employed. It had over 650 members by October 1973, when it held its first convention, in Reston, Virginia. With Bob as President, the 260 members attending heard presentations from a who’s who in the profession. SPIDR flourished for a few years before the arbitrators lost interest, and it became an organization of mediators. Without Bob’s inspiring leadership, his followers could not sustain the organization.
Raised on the Maryland coastline, Bob had close relatives who were Protestant missionaries. Devoted to his church, he was a social conservative. But while serving as chief legal advisor during Bob’s entire tenure, I never saw an occasion when his personal attitudes ever influenced a PERB decision. He studied the facts of each case, paid careful attention to the legal discussions engaged in by his colleagues at Board meetings, and after considering them, reached his conclusions. And he was fiercely jealous of PERB’s independence, resisting any attempt at interference in its decision-making process. This attitude was tested from the beginning. The first action taken under the Taylor Law was Governor Rockefeller’s recognition of CSEA as the representative of a unit of all State employees other than officers of the State Police and the faculty of the State University. Within a week, PERB received about 30 petitions from other unions challenging the Governor’s action and seeking alternative units based upon their organizational strengths. Little over a year later, PERB issued a decision creating the five Statewide units that, with some minor changes, still exist. This was a negotiating structure that no one foresaw or was pleased with, and particularly angered CSEA and several high-level gubernatorial appointees.
Following PERB’s decision, Bob was accused of disloyalty by members of Governor Rockefeller’s staff who demanded that the decision be rescinded. Bob disregarded those calls and in typical Navy fashion told me that we had to batten down the hatch. About a month later, Bob and other department heads were invited to a reception at Governor Rockefeller’s Westchester manor in Pocantico Hills. Shortly after Bob arrived, Rockefeller asked Bob to accompany him into his private office. He then told Bob that he had heard of the vitriol that had been directed at Bob by members of his senior staff, and he apologized for it. He said that the Taylor Law had been a contentious piece of legislation, and that his own reputation would depend upon its successful administration by PERB. He then thanked Bob for the five-unit decision, saying that although he was upset when it had been issued, he had come to realize that the success of the Taylor Law depended upon PERB’s reputation of being an agency independent from the Governor, and that the decision had demonstrated that independence for all to see.
Bob was a very happy person who exuded cheerfulness. I can only recall one time when he expressed regret. While at the World Series game in which Koufax beat Ford and Koufax set the strikeout record for series play, he ruefully mused: Home Run Baker was a neighbor of mine when I was growing up in Maryland. He invited me to join him in Cooperstown when he was sworn into the Hall of Fame. I regret that I didn’t make the time to accept that invitation.
Public Employment Relations Board Activities
New York State – Fiscal Years 2005-06 – 2009-10
|Settled or Negotiations without Third-Party Assistance||1,979||1,994||2,137||1,978||2013|
|Brought to PERB for Assistance||343||333||319||344||373|
|Settled by Mediation||269||229||129*||327||218|
|Settled by Mediation by Fact-finder||15||13||22*||30||20|
|Settled by Negotiations Based on Fact-finding Report||23||26||8*||8||19|
|Settled by Acceptance of Fact-finding Report||6||1||6*||10||3|
|Settled by Post Fact-finding Conciliation||4||6||4*||3||7|
|Settled by Arbitration||16||17||14*||19||10|
|Closed for Other Reasons||25||37||16*||21||9|
|Clarification/Unit Placement Cases|
|Cases Pending at Beginning of Year||52||34||46||36||54|
|Withdrawn After Conference||42||31||53||26||36|
|Cases Pending at End of Year||34||46||36||54||54|
|Cases Pending at Beginning of Year||569||561||614||650||624|
|Charges Filed During Year||861||807||782||770||893|
|Administrative Law Judge Decisions||130||109||131||96||107|
|Charges Settled by Agreement, Withdrawn or Closed||758||628||628||660||716|
|Cases Pending at End of Year||561||614||650||624||744|
|Cases Pending at Beginning of Year||15||11||23||19||12|
|Withdrawn After Conference||9||13||8||9||10|
|Cases Pending at End of Year||11||23||19||12||16|
– Represents zero.
* A staffing shortage did not allow for an end of the year canvass of case closings, so the numbers are disproportionately low.
SOURCE: New York State Public Employment Relations Board
During the fiscal year, the Office of Conciliation processed 373 new collective bargaining impasse declarations, an 8.4% increase over the total registered in fiscal 2008-09 and the highest figure since fiscal 2004-05.
While this continued the upswing in total impasses that started last fiscal year, the nature of the increase represents a complete reversal from that portrayed in 2008-09. Last year’s increase was entirely attributable to the municipal and non-education sector, with education sector impasses declining marginally overall, and teacher impasses falling by nearly 28% to the lowest level since fiscal 2002-03.
In stark contrast, impasses in the education sector and teacher units in fiscal 2009-10 jumped 18.2% and 19.7% respectively, with municipal and non-education sector impasses showing a very nominal decline.
The teacher impasse figure was the highest in twelve years. Within the municipal sector, impasses in interest arbitration-eligible units increased by a larger proportion than in the overall sector, and the 37 interest arbitration panels designated was 37% higher than last fiscal year’s total.
Some 285 sets of negotiations were resolved during fiscal 2009-10. The percentage of impasses closed by mediation, i.e. without the necessity of a fact-finding report or a petition for compulsory interest arbitration, was very high, at 83.5%. Of the 49 factfinding assignments closed during the year, 23 were settled either without need for issuance of a report, or closed through the parties’ outright acceptance of the fact finder’s recommendations.
PERB neutrals actively facilitated settlements during the fiscal year in a wide variety of sizable bargaining units. Mediation helped facilitate settlement in large general units including those in the counties of St. Lawrence (750 employees), Otsego (700), and Seneca (250) and in the City of Rochester (1238); teacher and faculty units in the Rochester (3708), South Huntington (527), Plainview-Old Bethpage (511), Corning-Painted Post (500), West Irondequoit (428), North Tonawanda (401) and Long Beach (400) school districts and at Nassau (765) and Broome (455) community colleges; non-instructional units in the Shenendahowa (850) school district and the Wayne-Finger Lakes (431) and Erie 2 (324) BOCES; teacher aide units in the Rochester (714) and Elmira (340) school districts; police units in the cities of Schenectady (147), Rome (87), Watertown (66), Saratoga Springs (57) and Plattsburgh (48), and in the towns of Colonie (104) and Greece (60); police superior officer units in the Counties of Suffolk (508) and Nassau (500); the deputy sheriff unit in the county of Chemung (65); and fire fighters in cities of Cohoes (43), Olean (41), Gloversville (36), and Garden City (34).
On the interest arbitration front, in August, a PERB-appointed public arbitration panel issued its award establishing employment terms for over 33000 New York City transit employees covering a three year period ending in January of 2012. The ten awards issued during the course of the year included the deputy sheriff unit in the County of Onondaga (226) and sizable units of police officers in the county of Suffolk (1800) and in the towns of Orangetown (90) and Haverstraw (72). PERB’s administration of its Voluntary Grievance Arbitration procedure also was very active, with a total of 790 demands for grievance or disciplinary arbitration received, and some 652 arbitrators designated.
The Office of Conciliation continued to be regularly involved in the provision of alternative dispute resolution and labor-management collaborative training. For the second consecutive round of negotiations, teams in Clinton County and CSEA were trained by members of the conciliation staff in Interest Based Negotiations (IBN). Agreements were reached prior to expiration of existing contracts through successful Facilitated Intensive Negotiations (FIN) at the Tompkins-Cortland Community College with CSEA and in the Jefferson Central School District with the SRP Unit (NYSUT). In this process, bargaining is conducted in a concentrated 3-day time frame with the assistance of a PERB mediator functioning as facilitator. Labor and management teams in several other jurisdictions have agreed and committed to using this process in the next fiscal year. PERB continued to foster the development of labor-management committees (LMC) with both staff and panel mediators training and assisting in the establishment of LMCs in the Town of Huntington with CSEA, the Town of Kent and Teamsters (IBT) Local 456, and in the Tompkins County Library with the Support Staff (UAW). Finally, staff grievance mediation/arbitration continued to be provided for a number of disputes.
Mr. Curreri has served as PERB’s Director of Conciliation since 1990, having previously served as Assistant Director and as Associate Counsel. He has mediated numerous high profile impasses across the State, including the 2005 New York City transit strike, where he served as lead mediator of the team that helped end the job action.
We started the 2009-10 fiscal year with 624 pending improper practice charges. This represents the second largest number of charges pending at the outset of a fiscal year in the last ten years. It is second only to the number pending at the beginning of the 2008-09 fiscal year. Moreover, the 893 improper practice charges filed during the 2009-10 fiscal year is the highest number of annual filings since 2002. The number of charges pending at the end of the 2009-10 fiscal year, 744, represents an increase from the 624 charges pending at the end of the prior fiscal year. In May 2010, shortly after the start of the 2010-11 fiscal year, we received the 30,000th improper practice charge filed in the history of the agency. The charge alleges discrimination against employees for the exercise of their Taylor Law rights and reminds us of the importance of our work and the parties’ commitment to the Act and its administration.
The Administrative Law Judges and Director issued 107 improper practice decisions during the fiscal year, an increase from the 96 decisions issued during the previous fiscal year.
The number of charges settled by agreement or withdrawn during the fiscal year, 716, constitutes an increase from the 660 charges closed in this manner during fiscal year 2008-09. This constitutes the highest number since 2005-06.
The cooperation of the parties and the strong effort of a fuller complement of staff continue to allow us to settle the vast majority of the charges that are filed. We continue to place great emphasis on our settlement efforts, particularly at the pre-hearing conference level. History has shown that voluntary resolution is preferable to litigation for a plethora of reasons. Therefore, we continue to remind the parties to be prepared at the pre-hearing conference to fully discuss all relevant issues, enter into factual stipulations where appropriate and resolve the matter if possible.
We constantly strive to reduce litigation costs and contain the time it takes to process a charge. We have expanded the use of telephonic, rather than on-site pre-hearing conferences where appropriate, particularly in areas distant from our offices in Buffalo, Albany and New York City. Additionally, in our effort to better manage caseload, we have in the past few months returned to our prior practice of servicing parties located in the County of Westchester from our New York City office, rather than the Albany office.
As the parties explore new ways to deliver public service, we anticipate that issues surrounding the transfer of unit work and changes in employees’ work days and schedules will occupy much of our time during the upcoming year. We remain appreciative of the parties’ continued cooperation and good faith as we assist them in working through the issues that are brought to us.
Mr. Klein has served as PERB’s Director of Public Employment Practices and Representation since 1996. He had been an administrative law judge with the agency since 1978.
The Office of Counsel received 9 new litigation cases during FY 09-10; the same number as in FY 08-09. One amicus brief was also filed with the Court of Appeals regarding a matter of concern to PERB, but in which PERB was not a party. The cases that the Office counts in the litigation category are CPLR Article 78 petitions for review of the Board’s decisions and orders and any other miscellaneous court work that the Office engages in, including petitions for injunctive relief and petitions for enforcement of the Board’s remedial orders that are brought by PERB.
The Office received 17 applications for injunctive relief during FY 09-10, the same as in FY 08-09. Of the 17 applications, all but three were deficient or alleged insufficient facts to warrant injunctive relief. Of the 14 applications that were deficient, 3 were technically deficient or the underlying improper practice charge was not processed. The Office issued 11 decisions denying applications for injunctive relief during FY 09-10. Of the three meritorious cases that the Office of Counsel decided to pursue, two settled before court proceedings were required, and the third resulted in a court-ordered injunction; the same number of meritorious cases as in FY 08-09, with the same results.
There were a total of 14 open litigation cases at the close of FY 09-10, whereas the total at the close of FY 08-09 was 9. Generally, a litigation case is closed when the time to appeal from a judicial decision has expired, or after the Court of Appeals has denied leave to appeal or finally decided the case. Of the 4 litigation cases that were closed during FY 09-10, one was closed after the Court of Appeals issued an order on the merits, another was closed after the Court of Appeals denied leave to appeal, and the remaining 2 were closed because no appeal was taken.
The Office received no requests for enforcement of the Board’s orders during FY 09-10, but one investigation remains open from FY 08-09. One strike charge was received during FY 09-10, as in FY 08-09. The charge was subsequently withdrawn by the public employer. Although the Office of Counsel intervened in that proceeding, absent sufficient evidence of union involvement in the alleged strike, the Office did not file a charge on its own.
Mr. Quinn has served as Associate Counsel and Director of Litigation since May 2007. He served as an administrative law judge for fifteen years and as assistant counsel for litigation for eight.
The Board issues final decisions and orders determining exceptions and cross-exceptions filed by parties in approximately one-third of all cases initially decided by the Office of Public Employment Practices and Representation. Periodically, the Board will also determine exceptions and cross-exceptions seeking review of a decision by the Director or Assistant Director of Conciliation.
The Board’s final decisions and orders resolve improper practice charges, representation petitions and declaratory rulings. In addition, the Board considers requests for interlocutory review of interim rulings by the Director or Assistant Director of Public Employment Practices and Representation and ALJs. Such motions are granted only when a moving party demonstrates extraordinary circumstances. For fiscal year 2009-10, the Board issued a total of forty-five (45) decisions in comparison to the fortythree (43) decisions issued in the prior fiscal year.
The Board will certify an employee organization to represent units of public employees following an election. In addition, the Board certifications are issued without an election based upon a card check when the choice available to the employees is limited to the selection or rejection of a single employee organization and the petitioning employee organization has submitted a showing of interest demonstrating support by a majority in the unit. The Board issued a total of twenty-six (26) certifications in the 2009-10 fiscal year, in comparison to the twenty-eight (28) certifications in the last fiscal year.
It may come as a surprise to some that automatic dues deduction and card check certification in New York’s public sector were in existence prior to the enactment of the Taylor Law. In 1958, New York City Mayor Robert F. Wagner signed Executive Order 49 which permitted the certification of an employee organization without an election. Between 1958 and 1967, New York City certified a number of employee organizations without an election based upon various forms of majority support including dues deduction authorizations already on file. When the Taylor Law was drafted, the Legislature directed, in Civ. Serv. Law §207(2), that card check certification be the preferred means of certification and that an election should be held only “if necessary.”
In our age of perpetual information and the 24/7 news cycle it is not uncommon to be forgetful of history. Chairman Jerry Lefkowitz’s article on Bob Helsby in our Annual Report provides us with an important portrait of a central figure in PERB’s history who set the trajectory for the agency. As part of our continuing efforts to honor the history of the Taylor Law and public sector collective bargaining, we have begun digitizing various official documents from that history. In the near future, we will begin posting those documents on our website.
Finally, mention of digitizing documents and our website is a perfect segue to a brief discussion about the growing impact of new technologies in public sector labor and employment law. Our agency is fully cognizant that the advent of new technologies is creating new issues in the workplace, and changing the manner that proposals are circulated. Along with the obvious and/or potential benefits of new technologies come new and novel problems for employers, employee organizations and their advocates including inadvertent distribution of communications, and access to private information.
Furthermore, the popularity of social networking and blogs has the potential for the further deterioration of the line between personal and workplace information. By the end of its 2009-10 term, the United States Supreme Court will be issuing a decision involving public sector workplace technologies in a case called Ontario, California v. Quon. Although the case involves the question of whether a police department violated a police officer’s privacy rights under the United States Constitution, many of the underlying issues, including the Court’s interpretation of the scope of the employer’s computer use policy, may have relevancy to future collective negotiations and labor relations. Like the vast number of other new issues we have tackled in the past, PERB anticipates aiding the parties in resolving disputes under our jurisdiction emanating from these new technologies.
Mr. Herbert has served as Deputy Chair and Counsel since May 2007. Prior to joining PERB, Mr. Herbert practiced labor and employment law for over two decades.
In an effort to assist with the increasing number of filings, Philip Maier, Chief Regional Mediator, along with the Administrative Law Judges in New York City, are being assigned many of the representation and improper practice charges involving Rockland and Westchester County parties. This should help balance out the distribution of cases and hopefully lead to more timely resolution. The addition of Lori Matles to the mediation staff last year has allowed for a vastly more efficient handling of impasses in the Hudson Valley region.
From Buffalo, Chief Regional Mediator Greg Poland highlighted the resolution of several disputes. In 2009, Erie County reached agreements with the New York State Nurses Association and AFSCME that include pay raises but eliminates retire health benefits for all new hires and a contribution to health insurance premiums for active employees.
The City of Rochester and its employee organizations agreed to an experience rated, single health insurance provider plan and benefit levels that result in $10 million savings for the City. Potential layoffs are avoided. The City of Batavia’s contracting with a private firm eliminated the emergency medical response division of the fire department which resulted in the layoff of 21 employees. Faced with an Improper Practice charge, the City and International Association of Fire Fighters agreed to restore 4 permanent full time fire fighter positions, a severance package, which included first preference hiring for positions with the private firm under contract, and a 2-year contract extension with a pay raise.
The fiscal challenges that persisted throughout the year tested PERB’s ability to continue its proud history of providing quality dispute resolution services to the public sector labor relations community. In difficult economic times, parties struggle to resolve workplace disputes among themselves and turn to third parties for assistance more frequently. This was clearly the situation during fiscal year 2009-10 when the number of improper practice charges filed, unit clarification/management-confidential applications received, impasses declared, and interest arbitration panel designations were the highest in at least the last four years. With steadily declining resources, Administrative Law Judges increased the number of decisions issued by 14% and closed nearly 10% more cases without a decision than in the prior fiscal year. In addition, PERB mediators and fact finders handled nearly nine percent more impasses in 2009-10 than in 2008-09.
Again this year, Chairman Lefkowitz invited representatives from constituent statewide organizations to meet with him and senior staff to discuss issues of concern. This initiative to maintain a continuous dialogue with groups and individuals interested in PERB’s work and public sector labor relations has become an even more valuable resource for us as we explore additional means to further our efficiencies. Presentations by staff before groups such as the Association of Labor Relations Agencies, Labor and Employment Relations Association, New York State Bar Association, and educational institutions like Cornell University, Rockefeller College at the University at Albany, SUNY, Sage Colleges, and Albany Law School have helped PERB maintain its professional partnerships.
The 2009 edition of Mandatory/Nonmandatory Subjects of Negotiation was released June 1, 2009 and a supplement through December 31, 2009 followed in early 2010. The Taylor Law, 2009 edition became available in the fall of 2009. Publications such as these are a primary means of educating practitioners and the public about the Taylor Law and the Agency. To keep information current, revisions are issued periodically. We continue to offer subscriptions to the PERB Newsletter and PERB Advance Decisions in both hard copy and electronic formats. A list of subscriptions and publications available from the Agency can be found on our website, www.perb.state.ny.us.
Three PERB public meetings subject to Executive Order 3 were webcast during the 2009-10 fiscal year. Whenever webcasts are required, PERB’s website provides access to them. The compilation of Compulsory Interest Arbitration Awards that can be viewed, downloaded, and printed directly from the website currently begins with the year 1981 and continues through to the most recently issued awards. Within the next few months, all of the awards issued since the enactment of the compulsory interest arbitration section of the statute should be available. All sections of the website are updated regularly. The site offers answers to frequently asked questions about public sector labor relations; provides detailed information about PERB’s program offices, their staff, functions, and procedures; features summaries of Board and Administrative Law Judge decisions since January 2000; publishes fact-finding reports issued within the last six to eight months and includes the ability to download all of the official PERB forms and order publications.
Mr. Zumbolo has served as Executive Director since September 2007. At that time, he moved from the Office of Conciliation where he spent more than 25 years mediating disputes.
Adrienne Juozokas returned to PERB during 2009-10. Adrienne was a legal intern with the Agency in 2007. She decided to come back to PERB after completing law school and serving as a legal aide in the Governor’s Counsel’s Office and Office of Employee Relations. Adrienne functions primarily as an assistant attorney to the Board, Counsel’s Office and the Office of Public Employment Practices and Representation.
Jerome Lefkowitz, Chairman
Robert S. Hite, Member
Sheila S. Cole, Member
Anthony Zumbolo, Executive Director