A union’s duty of fair representation

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A union’s duty of fair representationCounty of Tompkins and Tompkins County Sheriff and TompkinsCounty Deputy Sheriff’s Association, Inc., 44 PERB ¶3024, U-28437, U-28483
The Board affirmed the dismissal of a charge by the TompkinsCounty Deputy Sheriff’s Association, Inc. (Association), which alleged that thejoint employer violated §209-a.1(d) of the Public Employees’ Fair EmploymentAct (Act) by submitting to interest arbitration a proposal to exclude all unitemployees not on the payroll at the time of contract ratification and/or thedate of an interest arbitration award from receiving retroactive payments ofwages and benefits. 
Although a demand for retroactivity of wages and benefits isgenerally a mandatory subject of negotiations under the Act and arbitrableunder §204.9(g) of the Act, the Association asserted that the joint employer’sproposal was prohibited based upon the rationale in the Appellate Division,Third Department’s decision in Baker vBoard of Education, Hoosick Falls Central School District, 3 AD3d 678, 37 PERB ¶7502 (3d Dept 2004).
In that decision, the appellate court concluded that theparticular facts alleged in a plenary action were sufficient to state a claimof a breach of the duty of fair representation based upon the employeeorganization’s alleged failure to provide any representation to the plaintiffs,who had been excluded from receiving retroactive salary increases under anegotiated agreement.
The Board noted that in reaching its decision, the AppellateDivision was obligated to grant all reasonable inferences to the factualallegations of bad faith and arbitrariness made in the complaint. Accordingly,the Board found that the Hoosick Fallsdecision does not stand for the substantive proposition that parties areprohibited from proposing the exclusion of one group of employee from anegotiated retroactive salary increase or other benefits.
In its decision, the Board also resolved exceptions andcross-exceptions to the ALJ’s conclusions with respect to the arbitrability ofvarious Association proposals under §209.4(g) of the Act. The Board concludedthat the Association’s mandatory on-call and General Municipal Law §207-cproposals were nonarbitrable under §209.4(g) of the Act because they wereunitary demands that included inseparable nonarbitrable components under §209.4(g)of the Act.
The Board emphasized that the application of the unitarydemand principle to disputes under §209.4(g) of the Act is necessitated by theLegislature’s public policy choice of dividing the subject matter of proposalsfor deputy sheriffs into two classes with distinct impasse procedures.
The Association’s health insurance buy-out, rate of pay andovertime proposals were found to be arbitrable because they are directlyrelated to compensation. However, the Board found that the Association’sproposals concerning union leave, road patrol schedules, and clothing werenonarbitrable under §209.4(g) of the Act.