Orda Decision

7/28/2019 Orda Decision

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STATE OF NEW YORKPUBLIC EMPLOYMENT RELATIONS BOARD

In the Matter ofCIVIL SERVICE EMPLOYEES ASSOCIATION, INC.,LOCAL 1000, AFSCME, AFL-CIO,

Charging Party,-and-

OLYMPIC REGIONAL DEVELOPMENT AUTHORITY,Respondent.

CASE NO. U- 32018

STEVEN A. CRAIN AND DAREN J. RYLEWICZ, GENERAL COUNSELS(ELLEN M. MITCHELL of counsel}, for Charging PartyDAVID P. McKILLIP, Director of Human Resources, for Respondent

DECISION OF ADMINISTRATIVE LAW JUDGEOn July 6, 2012, the Civil Service Employees Association,. Inc., Local1000,

AFSCME. AFL-CIO (CSEA) filed an improper practice charge alleging that the OlympicRegional Development Authority (Authority) violated 209-a.1 (d) of the PublicEmployees' Fair Employment Act (Act) when it failed to vote on whether or not to ratify

. .a tentative agreement reached by the parties' negotiating representatives. TheAuthority filed an answer denying that its conduct violated the Act and asserting by wayof affirmative defense that the charge is untimely filed.

A prehearing conference was held before Assistant Director Susan A. Comenzoon August 8, 2012. Following the conference, and by letter of August 10, 2012,Assistant Director Comenzo directed the parties to file a joint stipulation of the relevant,undisputed facts for the record by September 28, 2012. The parties were further


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advised to file a written statement of disputed, relevant facts which it wished to offer forthe record.

By letter of September 28, 2012, the Authority advised Assistant DirectorComenzo that the parties were unable to stipulate to the facts in this matter. By letter ofOctober 1, 2012, CSEA advised Assistant Director Comenzo that it believed certainfacts in the case were undisputed, specifically those allegations the Authority admittedin its answer, but that the Authority indicated that it was directed by the Governor'sOffice of Employee Relations not to stipulate to any facts.

Assistant Director Comenzo wrote the parties on October 22, 2012, and advisedthat the record in this case would consist of the pleadings, the Authority's letter ofSeptember 28, 2012, in response to her letter of August 10, 2012, and CSEA's letter ofOctober 1, 2012. The Authority was directed to file a statement of any facts it wished topresent for the record specifically facts related to the denials set forth in its answer, nolater than November 5, 2012.

By letter of November 2, 2012, the Authority responded to Assistant DirectorComenzo's directive to file facts it wished to offer. The Authority advised that it tookexception to Assistant Director Comenzo's directive that it submit facts with respect toallegations that had been denied or that it offer any evidence prior to CSEA offeringfacts in support of its claim.

Following receipt of the Authority's November 2, 2012 letter, Assistant DirectorComenzo wrote the parties on December 8, 2012, and advised that the Authority'sobjection to the creation of a record as set forth in her letter of October 22, 2012 wasdenied; that the admitted facts set forth in the pleadings were sufficient to establish


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CSEA's case; that the Authority presented no facts despite having been given theopportunity to do so; and that the record was closed.

By letter of December 24, 2012, I advised the parties that the case had beentransferred to me for decision and set a briefing date. Both parties filed briefs.

FACTSThe undisputed facts are as follows:

1. CSEA is the exclusive negotiating representative of a unit of employees of theAuthority;

2. CSEA and the Authority are parties to a collectively negotiated agreementcovering the period April1, 2007 to March 31, 2009;

3. On or about January 27, 2012, the parties reached a tentative agreement;4. On or about February 20 and 21, 2012, CSEA unit members ratified the tentative

agreement. Tami Williams, CSEA Labor Relations Specialist, notified theAuthority's director of human resources that the agreement had been ratified .

5. On or about May 10, 2012, Williams sent a letter to Ted Blazer, President andCEO of the Authority, requesting notification regarding the Authority's intentionsregarding ratification of the tentative agreement.

6. On or about June 11, 2012, Williams received a letter from Blazer advising thatthe next board meeting was scheduled for June 19, 2012, and that the boardwas expected to address the matter at that time.

7. At the June 19, 2012 meeting of the Authority's board the tentative agreementwas not placed on the agenda and neither did the board act on the tentativeagreement or ratify the tentative agreement.


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8. The Authority offered no facts with respect to its denials or any other aspect ofthis case despite having been given an opportunity to do so.

DISCUSSIONIn City of Dunkirk, 1 the Board held that... ratification, being part of the bargaining process, is subject to the samestandards of good faith as govern the bargaining itself. Reasonableexpedition is no less expected in ratification than in bargaining, and thatreasonableness is similarly judged by the totality of circumstances underthe facts of each case.2The Authority was aware that an agreement had been reached by the parties

and was notified that the agreement was ratified by CSEA. Without any excuse orexplanation the Authority failed to consider or vote on whether or not to ratify theagreement. As a result, the Authority will be found to have violated 209-a.1 (d) of theAct and, by its conduct to have waived its right to ratify the ag reement and be orderedto execute the same, unless its defenses have merit.

An improper practice charge alleging a violation of the Act must be filed withinfour months of the act complained of. 3 The Authority advised CSEA that its board wasexpected to address the matter of ratification of the tentative agreement at its June 19,2012 meeting. Contrary to expectations, the ratification of the tentative agreement wasnot placed on the board's agenda and, thereafter on July 6, 2012, CSEA filed thischarge, well within four months of the violation alleged.

125 PERB 1J3029 (1992).2 /d. at 3061. See a/so Jamesville-DeWitt Cent Sch Dist, 22 PERB 1J3048 (1989) andUtica City S.ch Dist, 27 PERB 1J3023 (1994), affg 26 PERB 1J4652 (1993).3Rules of Procedure, 204.1 (a)(1 ).


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The Authority argues in its brief that the time should run from January 27, 2012,the date the parties reached an agreement, reasoning that once an agreement isreached there is no continuing duty to bargain and thus no basis upon which to find thatit has failed to bargain in good faith.

This argument is rejected. The Authority ignores the fact that on January 27,2012 the parties reached a tentative agreement only. That agreement was subject toratification, which is subject to the same standards of good faith as govern thebargaining itself.4

.The Authority argues further that CSEA failed to meet its burden in that it failedto establish that the Authority's board was under a legal obligation to consider and acton the ratification of the parties' tentative agreement.

In Utica City School District,5 the Board explained that[e]mployer ratification of a contract is a privilege obtained by andbelonging to the chief executive. It exists when properly reserved as acondition to the chief executive's otherwise absolute duty to execute ondemand a writing embodying the agreements reached duringnegotiations. The Chief executive alone, not the legislative body, has theright and duty to bargain and is responsible for any failure by thelegislative body to vote on ratification within a reasonable period of time.(footnote omitted) (emphasis added)

CSEA brought this charge against the Authority and not its board. It need only showthat the Authority failed to bargain in good faith. The Authority acts through its chiefexecutive officer. When its chief executive officer failed to ensure that its governingboard acted on ratification within a reasonable time, a violation occurred. The4City of Dunkirk, supra, at 3061.527 PERB 1f3023, 3055-56 (1994).


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Authority's argument regarding CSEA's failure to meet its burden of proof is thereforerejected.

The Authority, in failing' to act upon ratification of the tentative agreementreached by the parties, violated 209-a.1 (d) of the Act. By its conduct the Authority haswaived its right to ratify.

IT IS, THEREFORE, ORDERED that the Authority.1. Execute, upon demand by CSEA, the collective bargaining agreement reached

by the parties on January 27, 2012; and2. Sign and post the attached notice at all physical and electronic locations

customarily used to post notices to unit employees.

Dated at Buffalo, New Yorkthis 22nd day of May, 2013

Jean DoerrAdministrative Law Judge


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NOTICE TO ALLEMPLOYEESPURSUANT TOTHE DECISION AND ORDER OF THE

NEW YORK STATEPUBLIC EMPLOYMENT RELATIONS BOARDand in order to effectuate the policies of the

NEW YORK STATEPUBLIC EMPLOYEES' FAIR EMPLOYMENT ACT

we hereby notify all employees of the Olympic Regional Development Agency in the unitrepresented bythe Civil Service Employees Association, Inc., Local1000, AFSCME, AFL-CIO(CSEA) that the Olympic Regional Development Agency will execute, upon demand by CSEAthe collective bargaining agreement reached by the parties on January 27, 2012.

Dated .... . . ... . . By . . . . . . . . . . . . . . . . . . .. ... . ... . ... .on behalf of Olympic Regional Development Agency

This Notice must remain posted for 30 consecutive days from the date of posting, and must not bealtered, defaced, or covered by any other material.

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