Matter of New York State Pub. Empl. Relations Bd. v County of Monroe

[*1] Matter of New York State Pub. Empl. Relations Bd. v County of Monroe 2009 NY Slip Op 51908(U) [24 Misc 3d 1247(A)] Decided on August 28, 2009 Supreme Court, Albany County Zwack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 28, 2009
Supreme Court, Albany County

In The Matter of the Application of New York State Public Employment Relations Board, Petitioner, For Injunctive Relief Pursuant to Civil Service Law § 209-a.4

against

County of Monroe, Respondent.



4694-09



David P. Quinn, Esq.

Attorney for Petitioner

80 Wolf Road

Fifth Floor - Room 500

Albany, New York 12205-2670

Harris Beach, PLLC

Attorneys For Respondent

Peter J. Spinelli, Esq., of counsel

Karlee S. Bolanos, Esq., of counsel

99 Garnsey Road

Pittsford, New York 14534

Nancy E. Hoffman, General Counsel

Civil Service Employees Associates, Inc.

Attorneys for Intervener CSEA

Paul S. Bamberger, Esq., of counsel

Box 7125, Capitol Station

143 Washington Avenue

Albany, New York 12224

Henry F. Zwack, J.

In this proceeding brought pursuant to Civil Service Law §209—a(4), petitioner New York State Public Employment Relations Board (PERB) seeks injunctive relief pending PERB's disposition of an improper practice charge filed by the Civil Service Employees Association, Inc. (CSEA). CSEA moves to intervene. Respondent County of Monroe opposes the petition and CSEA's motion to intervene. Petitioner has not submitted papers on CSEA's motion to intervene.

First, the court will address CSEA's motion to intervene. CPLR §1014 provides that "[a] motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought." The Court notes that a proposed pleading has not been set forth by CSEA. Based upon the foregoing, the motion to intervene is denied (Zehnder v State of New York, 266 AD2d 224 [2nd Dept 1999]; Rozewicz v Ciminelli, 116 AD2d 990 [4th Dept 1986]; Carriage Hill, Inc. v Lane, 20 AD2d 914 [2nd Dept 1964]).

On May 29, 2009, PERB received an application for injunctive relief from CSEA, Local 1000 AFSCME, AFL-CIO, Monroe County Local 828, Monroe County Part-Time Employees Unit 7401. CSEA alleged improper practices against Monroe County pursuant to Civil Service Law §209—a (1). Specifically, CSEA learned that the County of Monroe mailed a letter and survey on May 19, 2009 to part-time county employees to determine if a majority of the employees wanted to continue representation by CSEA. CSEA noted its belief that the letter and survey were intended to intimidate employees and were sent in retaliation for demands CSEA had made in prior contract negotiations. CSEA alleged that the survey undermined the ability of CSEA to negotiate and represent County employees.

The letter notes that the County is conducting a survey for the purpose of determining "whether CSEA enjoys the support of the part-time employees" and that "[i]f 30% or more question whether CSEA should continue as the union representative, a secret ballot election will be held to determine if CSEA should continue to represent part-time employees or should be decertified." Prior to mentioning the survey, the letter provides as follows:

In 2005, part-time employees became represented by the CSEA Union as the result of authorization cards submitted by the union (a "card check").

Since that time, you have been covered by a union contract and required to pay union dues.

The union contract expired at the end of 2008. We did not receive a request to negotiate a new agreement until March 24, 2009, even though written notice was required in September [*2]2008.

We have also learned that the part-time union has no officers and is currently in an "administratorship" with an election of new officers, not yet scheduled.

Article 2.2 of the union contract provides that if the County receives evidence that thirty percent or more of the unit employees are questioning CSEA's status, a secret ballot election will be held to determine if CSEA should remain your union representative.

Because of the current situation, the County has decided to conduct a survey or "poll" of part-time employees to assess whether or not we should schedule a secret ballot election.

PERB notes that on June 3, 2009 it received the County's response to the application for injunctive relief. Distribution of the letter and survey was acknowledged and the County relied upon section 2.2 of the parties' expired collective bargaining agreement as part of its authority for conducting the survey.

PERB asserts that based upon the application for injunctive relief and the County's response, there is reasonable cause to believe that the County violated Civil Service Law §209-a(1)(a) and (b). While recognizing section 2.2 of the expired collective-bargaining agreement, PERB notes that the contract does not permit the County to affirmatively solicit evidence of thirty percent or more dissatisfaction among employees. PERB also notes that the County in any event would not have been able to file a petition to decertify CSEA in light of the fact that the collective bargaining agreement was already expired. PERB argues that in light of this, the County's conduct shows that it was attempting to encourage a petition by employees to decertify the union and therefore its conduct would constitute an improper practice pursuant to Civil Service Law §209—a(1)(a) and (b). PERB contends that immediate and irreparable injury could result unless the County is enjoined from soliciting and obtaining information and using the results of the unlawful survey because the County could attempt to use the results of the survey to its advantage in contract negotiations.

The County has filed a verified answer with affirmative defenses which assert that the improper practice charge should be dismissed by PERB, that the County's survey was motivated by legitimate reasons and was the proper exercise of an option of the County under its collective bargaining agreement, and that PERB has failed to make a showing of irreparable harm, setting forth only conclusory allegations and speculation.

The Court notes that the standard for this proceeding is whether "there is reasonable cause to believe an improper practice has occurred and that it appears that immediate and irreparable injury, loss or damage will result thereby rendering a resulting judgment on the merits ineffectual necessitating maintenance of, or return to, the status quo to provide meaningful relief" (Civil Service Law §209-a[4][d]). If this Court finds that the standard is met, it may grant injunctive relief pending the decision of an Administrative Law Judge (Civil Service Law §209-a[4][d]). An improper employer practice includes actions that deliberately "interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 202 of this article for the purpose of depriving them of such rights" (Civil Service Law §209—a[1]). Civil Service Law §202 provides that "public employees shall have the right to form, join and [*3]participate in, or to refrain from forming, joining or participating in, any employee organization of their own choosing."

First, the Court considers whether there is reasonable cause to believe an improper practice has occurred. The Court notes that deference is to be accorded to PERB for matters falling within its expertise, which include determinations as to whether there is reasonable cause that an improper employer practices has occurred (Civil Service Law §209-a.; New York State Public Employment Relations Bd. v Town of Islip, 41 PERB 7005 [2008]; New York State Public Employment Relations Bd. v City of Buffalo, 28 PERB 7008 [1995]). The Court concurs with PERB that reasonable cause exists under all of the circumstances presented. The Court has considered the wording of the letter which accompanied the survey of the County and concurs with PERB that the letter appears to attempt to offer reasons for employees to express dissatisfaction with CSEA and to file a petition to decertify CSEA. It is notable that the County would not have been able to file a representation petition itself due to the fact that the collective bargaining agreement was expired (4 NYCRR 201.3[e]). The letter includes certain gratuitous information which is not complementary of CSEA, including that written notice by CSEA to negotiate a new agreement was late and that no officers are appointed to the part-time union and no election is scheduled by CSEA. The letter also references "the current situation" and notes that its purpose is to determine whether thirty percent question whether CSEA should continue, noting that if so, a secret ballot election will be conducted "to determine if CSEA should continue to represent part-time employees or should be decertified." To the extent the letter references an administratorship, the Court concurs with PERB that it could be construed as attempting to interfere with CSEA's administration, in violation of Civil Service Law § 209-a(1)(b). The wording of the letter as noted above, especially when viewed in light of the contract negotiations, supports a finding that it constitutes an improper employer practice pursuant to Civil Service Law §209—a (see In re Greece Cent. Sch. Dist., 19 PERB 4517 [1986]).

The Court also notes that section 2.2 of the collective bargaining agreement does not change this finding under all the circumstances. Section 2.2 of the agreement states as follows: "the Union's representative status shall continue as long as it represents a majority of the bargaining unit employees, provided that if the County receives evidence that thirty or more of the unit employees are questioning the status, the parties will conduct a secret ballot election conducted by PERB to determine representative status" (emphasis added). The Court does not find that the County receiving evidence is analogous to the County soliciting employee opinions via survey. At the very least, this provision in the expired collective bargaining agreement is not sufficient to negate the Court's finding that there is reasonable cause to believe an improper practice has occurred.

Second, regarding irreparable harm, the Court finds that there is a danger of irreparable injury. Specifically, the Court concurs with PERB that if the County is not enjoined from collecting information from the survey, and if the survey is ultimately found unlawful, the County may have access to information unlawfully acquired. PERB notes that the potential uses for such information could be encouraging employees to file a decertification petition and also using the survey information to its advantage in collective bargaining. The Court finds that the County's access to information, which may be found to be unlawfully acquired, is sufficient to meet the standard of immediate and irreparable injury, loss or damage. Additionally, the [*4]County's letter included with the survey expressly stated that one of the purposes and intended uses of the survey was to determine if CSEA should be decertified, and therefore the Court does not find that this potential use can be deemed speculative. If the County is not precluded from obtaining the results of the survey at this time, any resulting judgment finding the survey unlawful would be rendered ineffectual if the County had already been permitted to obtain the results.

ORDERED and ADJUDGED, that the petition is granted and respondent is enjoined and restrained from soliciting ballots from employees in the bargaining unit of part-time employees of the County of Monroe as to their interest in continuing to be represented by Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Monroe County Local, 828, Monroe County Part-Time Employees Unit 7401, from obtaining the results of such balloting from any source, including the Bonadio Group, and from publishing or disseminating in any manner the results of such balloting, pending a final determination in the underlying improper practice proceeding before the New York State Public Employment Relations Board, Case Number U-29194.

This constitutes the Decision, Order and Judgment of the Court. This Decision, Order and Judgment is returned to the attorneys for the petitioner. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:August, 2009

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice