Trevett Cristo Salzer & Andolina P.C.

’s
Union Update
Vol. 1 July 2009
Lawrence J. Andolina, Esq. Two State Street, Suite 1000 Telephone: (585) 454-2181
Daniel P. DeBolt, Esq. Rochester, New York 14614 Facsimile: (585) 454-4026

Welcome to the Union Update! Inside This Edition

This is the first edition of the Trevett Cristo
Welcome 1
Salzer & Andolina P.C. Union Update. This
newsletter, which will be published periodically, Who We Are 1
is intended primarily for the officers and
Legislative Update 3
members of the various law enforcement,
corrections and firefighter unions in Western Recent PERB Decisions 4
New York. In each edition, you will find
Know Your Rights 6
discussions of recent cases or legislation
effecting public sector employees and unions Common Issues 6
in New York State, with a particular emphasis
Miscellaneous 7
on those issues which uniquely apply to police
officers, corrections officers, deputy sheriffs
and firefighters.
In addition to addressing other timely issues,
It is also our hope that this newsletter will serve each edition will also include a section called
as an effective forum for sharing information. Know Your Rights. This section will focus on a
In many cases, unions are facing the same or specific issue or aspect of the law and discuss
similar challenges, and whether it is devising its impact on the workplace. For long-time
strategies for dealing with increased health members or officers, these issues will likely be
care costs in the context of contract well-known, but hopefully new members or
negotiations, or dealing with a new tactic by an those just becoming involved in a union will
employer attempting to avoid providing find this information helpful.
coverage for line-of-duty injuries, exchanging
ideas and information is always beneficial. By Who We Are
discussing issues which are becoming a
problem in one union, we may be able to avoid Although most union officers reading this
the same issue becoming a problem for other newsletter, along with some union members,
units. will be quite familiar with us, we recognize that
others may be wondering who we are.

continued on page 2 …

Please visit our newly redesigned website at

www.trevettlaw.com
Trevett Cristo Salzer & Andolina P.C. is a
multi-service law firm located in Rochester.
We currently have 19 attorneys practicing in
virtually every area of law. Partner Lawrence
J. Andolina and Associate Daniel P. DeBolt
practice in the area of public sector labor law,
with a particular focus on representing police
officers, corrections officers, deputy sheriffs
and firefighters. We currently serve as legal
counsel for many local unions representing
these employees, providing services ranging
from individual employee grievances or
disciplinary actions to collective bargaining and
proceedings before the Public Employment
Relations Board, state and federal courts.
We strive to provide our clients, whether
unions or individual employees, with
outstanding legal services tailored to their
specific needs. We recognize that in many
respects the needs of a unit in a small Village
police department may be significantly different
from the needs of a unit with several hundred
members, as are their available resources.
Our knowledge and experience enable us to
provide each union with the advice and
services that enable it to best represent its
members.
Lawrence J. Andolina
Larry graduated from Boston College in 1970
and received his law degree from Albany Law
School of Union University in 1974. After
serving as an Assistant District Attorney in
Monroe County from 1975-1978, he went into
private practice. He began representing public
sector unions in 1980, when he became
counsel for the Rochester Police Locust Club,
the union representing City of Rochester Police
Officers. Since that time Larry has continued
to represent public sector unions in all aspects
of their dealings with employers, from collective
bargaining to disciplinary proceedings and
proceedings before the Public Employment
Relations Board, state and federal courts.
Daniel P. DeBolt
Dan is a 2000 graduate of the School of
Industrial and Labor Relations at Cornell
University and received his law degree in 2003
from the Georgetown University Law Center.
He began as an associate at Trevett after
passing the bar exam and immediately began
working with Larry to represent the firm’s union
clients. He continues to focus his practice on
representing public sector unions and handles
the processing of contract grievances and
arbitrations, improper practice charges with
PERB, and assisting in the negotiation and
interest arbitration processes. He also
frequently represents the interests of individual
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union members in court proceedings where
they have wrongfully been denied disability
coverage for line-of-duty injuries.
Other Services
While we focus on representing unions and
employees, the Trevett Cristo firm provides
services across the legal spectrum. Our
attorneys also practice in the areas of personal
injury, criminal defense, bankruptcy,
matrimonial, business and real estate.
Legislative Update
Cancer Screenings
Although the change took effect at the end of
last summer, many public employees may still
not be aware that the law now specifically
provides for paid time away from work for the
purpose of certain cancer screening tests,
without needing to utilize accrued leave credits.
Last year the Legislature amended Civil
Service Law §§ 159-b and 159-c to require
most public employers to provide employees
with a paid leave of absence, of up to four
hours annually, for purposes of prostate
(Section 159-c) or breast cancer (Section 159-
b) screenings. Previously, the statutes had
granted many public employees the right to
take such leaves, but had been silent as to
whether or not such leave had to be paid.
However, while the paid nature of the leave is
now settled, the statute does not specifically
address several important issues with respect
to implementation, such as whether or not the
employer has any discretion to dictate when
employees may take such leave, or how much
advance notice the employee must provide.
Therefore, it may be beneficial to address
these issues through collective bargaining.
Additionally, thought should be given to
including the statutory rights to such leave
within collective bargaining agreements.
Inclusion of the statutory language in a CBA
would have the benefit of permitting a breach
by the employer to be challenged through the
contractual grievance procedure, as opposed
to requiring a civil action.
For-Profit Fire Protection (A533)
A bill has been introduced in the Assembly
which would prohibit municipalities from
contracting with a private for-profit entity to
provide fire protection services for its residents.
This represents a renewal of a long-standing
attempt to enact such legislation, which began
in the late 1990’s, following a failed experiment
with such privatization in the Village of Rye
Brook, Westchester County. After initially
dying in committee, the bill passed both the
Senate and Assembly on multiple occasions
from 2003-2007, only to be vetoed three times
by Governor Pataki and once by Governor
Spitzer. At this time the bill has been referred
to the Assembly Committee on Governmental
Operations, and will hopefully receive more
favorable consideration if it again makes its
way to the Governor’s desk.
Fees for Emergency Medical Services (A4310)
A bill has also been introduced in the Assembly
which would permit local governments to
charge individuals for emergency medical
services. Currently, the general municipal law
provides that such services “shall” be provided
free of charge to the individual. The proposed
bill would amend the statute to read “may” be
provided free of charge and to specifically
permit municipalities, except those with a
population of 1 million or more, to establish a
schedule of applicable fees. The bill is
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currently in the Assembly Committee on Local
Governments.
Many Fire Departments provide emergency
medical services and this proposed legislation
could obviously increase the revenue received
for such services. For bargaining units
providing these services, that revenue is an
important factor in negotiations and, potentially,
interest arbitration.
College Tuition Credits for Children of Disabled
Firefighters and Police Officers (A2204)
Local
Local Assemblyman Joseph
Morelle has introduced a bill
which would provide children
of permanently disabled
firefighters and police officers
with a credit for up to the full
cost of college tuition at any
SUNY or CUNY school.
An identical bill has been introduced in the
Senate (S2944) by Senator Nollozio.
Ban on Bullet Proof Vests (A2887)
Assemblyman David Koon has introduced a bill
which would ban the purchase or sale of
protective body vests, except to law
enforcement or military personnel. The
sponsor’s memorandum cites reports by district
attorneys and law enforcement personal
indicating an increase in the use of such vests
by drug dealers and other criminals, posing an
increased danger to the public and law
enforcement personnel.
Recent PERB Decisions
Lieutenant Placed in Firefighters Unit
The St. Paul Professional Firefighters
Association successfully petitioned PERB to
have a newly created Lieutenant position
placed within the firefighters bargaining unit.
After a hearing, Judge Jean Doerr, one of the
two ALJ’s assigned to PERB’s Buffalo office,
found that a sufficient community of interest
existed and that there was no inherent conflict
because the Lieutenant did not have the
authority to hire, fire, evaluate or discipline
firefighters.
41 PERB 4014.
Union Steward’s E-mail Protected
In the Matter of New York State Correctional
Officers and Police Benevolent Association, 41
PERB 3033, the Board addressed two
important issues: the circumstances
necessary for a deferral of an improper
practice charge to arbitration and the protected
nature of an e-mail from a union steward to his
members. The case involved disciplinary
charges which had been brought, and partially
upheld, against a steward of a union
representing warrant and transfer officers. In
addition to the contractual arbitration of the
disciplinary charges, the union brought an
improper practice charge contending that the
discipline was improperly motivated retaliation
against the steward for protected activity.
There had been some uncertainly between the
parties as to whether or not unit members were
to report for work on holidays which fell on a
regularly scheduled work day, thus entitling
them to premium pay, or whether they were
only to report if they received a specific
assignment for that day. Just before Election
Day, which was a holiday under the CBA, the
4
union steward sent an e-mail to unit members,
while off-duty and from his personal e-mail
account, advising that they should report to
work and put in a request for premium pay.
The employer interpreted the agreement
differently, and brought charges against the
steward, some of which related to the e-mail
and reporting to work on Election Day and
some of which were unrelated tardiness and
improper conduct issues. Another member
who followed the steward’s advice and
reported to work was not disciplined after
agreeing to waive any claim for premium pay.
On exceptions from the ALJ’s decision, the
Board held that, while it was not always
impermissible, in this case it was not
appropriate to defer the improper motivation
charge in reliance on the arbitration of the
disciplinary matter, as that issue was not
squarely addressed by the stipulated issues for
arbitration and thus would not be fully litigated.
The Board then went on to find that the
steward’s e-mail constituted protected activity
under the act and could not form a basis for
disciplinary action. The Board reiterated that
mere inaccurate statements by an employee
are protected under the Act, unless there is a
showing that they were deliberately made with
knowledge of their falsity, were maliciously
aimed at harming the employer, or if the
conduct is deemed overzealous,
confrontational or disruptive. In this case, the
interpretation of the agreement was unsettled
and there was no evidence of any intent by the
steward to cause disruption or harm to the
employer. Rather, the e-mail merely
encouraged the unit members to engage in
concerted activity by reporting to work and
seeking premium pay. Thus, the e-mail could
not form the basis of a disciplinary charge.
However, while noting that the timing
suggested possible improper motivation behind
the unrelated charges, the Board found that the
employer provided sufficient nondiscriminatory
reasons for bringing those charges.
The primary importance of this case is in
confirming that an employee may not normally
be disciplined for giving advice or encouraging
other members to engage in protected activity,
even if his or her interpretation of the
applicable contract provision might later turn
out to be incorrect. As a side note, it is
important to keep in mind that the activity
encouraged by the steward in this case was for
members to report to work on a day when it
was unclear whether they were to report or not.
Given the Taylor Law’s strict no-strike
provisions, this case may well have been
decided differently if the advice had been not to
report to work.
(Some) Police Discipline Prohibited Subject /
GML § 207-c Procedures Mandatory________
ALJ Lynn Fitzgerald, the other ALJ out of the
Buffalo office, recently issued a decision
addressing the mandatory nature of several
negotiating demands made by a union
representing police officers. In the improper
practice proceeding, which had been brought
by the City of Middletown to challenge the
union’s submission of several demands to
binding interest arbitration, Judge Fitzgerald
found that union demands concerning a bill of
rights for members and concerning disciplinary
procedures were prohibited subjects of
bargaining. While such subjects are normally
mandatory, including for police officers, PERB
and the courts have found them to be
prohibited subjects where disciplinary authority
is specifically vested by statute or City Charter
in either the Chief of Police of a Board of
Commissioners, which was the case in
Middletown.
However, Judge Fitzgerald found that the
union’s demand regarding the processing of,
and appeal from, applications for benefits
under GML § 207-c was mandatory, as it did
not infringe on any of the rights provided to the
employer by the statute. Specifically, she
rejected a claim by the City that the time limits
at each stage of the process, including on the
initial determination, limited the City’s ability to
gather evidence and make the initial
determination. On its face, the demand simply
affected when materials could be considered,
and the City’s claim that the 15 day time limit
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for the initial determination did not provide
sufficient time to gather and review medical
records and potentially arrange for a medical
exam went to the merits of the proposal and
should be addressed to the interest arbitrator.
The fact that the demand specified other
contractual benefits which officers would
receive while on GML § 207-c status also did
not render it nonmandatory, as the statute is
silent on that issue.
42 PERB 4502.
Unilateral Change to Off-Duty Drinking Policy
Violated the Act_______________________
An ALJ found, and the Board affirmed, that the
City of Albany committed an unfair practice by
unilaterally changing its disciplinary rules to
prohibit police officers from consuming any
alcoholic beverage within eight (8) hours of
beginning a shift. The prior rule had merely
prohibited officers from to reporting to work
under the influence of alcohol. The ALJ
rejected the City’s argument that the issue was
not a mandatory subject because it was an act
taken in furtherance of its mission, finding that
the City had presented no evidence of a
problem necessitating the rule change, nor that
it adopted the least intrusive means of
addressing the issue.
41 PERB 4512.
Know Your Rights
The primary source of collective rights to public
employees in New York is the Public
Employees’ Fair Employment Act, commonly
known as the Taylor Law. Among the
important rights conveyed by the Act is the
right to union representation at any interview
which the employee reasonably believes may
potentially lead to disciplinary action. This right
is commonly referred to as one of an
employee’s Weingarten rights, after the federal
National Labor Relations Board case which
established the right for purposes of federal
law in the private sector.
Initially, there was some uncertainly as to
whether or not this important right was
conveyed to New York public sector
employees by the Act. Although PERB has
consistently held that the Act did convey such
a right, in 2007 the New York State Court of
Appeals disagreed, finding that such a right to
representation was not included within the
Taylor Law. See New York City Transit Auth. v.
NYS PERB, 8 NY3d 226 (2007).
Thankfully, the Legislature responded swiftly
(which is always surprising), amending the Act
to specifically provide that it is an improper
practice for an employer to refuse a request by
an employee for union representation at an
interview which the employee reasonably
believes may result in discipline.
It is important to note, however, that the burden
is on the employee to demand such
representation. Unless required by a collective
bargaining agreement, the employer does not
need to advise the employee that he or she
has the right to representation.
Common Issues
It is often the case that we see a particular
issue suddenly become a problem for several
different unions within a relatively short time
period. Keep in mind that public employers,
just as unions do, communicate and share
information. In this part of the state many
public employers are also represented by a
small number of law firms, meaning that if a
particular defense or course of action is
successful for one employer, we can expect to
see the same from other employers. This
section is designed to make our readership
aware of such issues so they may take
appropriate actions.
Reporting Injuries: Although not a new issue,
we have recently dealt with a significant
number of GML § 207-a / 207-c cases where
benefits have been denied based, at least in
6
part, on the fact that the injury was not
immediately reported. In most of these cases
the member did not believe that the injury was
serious and thought it would resolve itself with
a few days of ice and some Advil. When it
became apparent that the injury was more
serious, anywhere from a few days to a month
later, the employers denied benefits.
In some of these cases we have been
successful in going to court and obtaining
benefits, but not in all. And of course the
unions would prefer not to incur the cost of
such legal proceedings. This can be avoided.
All members should be reminded of the
importance of filing an injury report
immediately, even where it is not believed to
be serious. Especially in the current economic
situation, employers will be looking for any
excuse to deny GML § 207-a/207-c benefits –
don’t assist them by failing to file a timely
report of an injury.
commitment from 3M that they will increase
pay-packets and are ready to discuss our
conditions for negotiations, then [the manager]
will have to remain here. If he wants to involve
the police, then he will have to send for them,
but it is out of the question that he leaves
without discussing our conditions.”
This is not the first such incident in France, and
the police seem reluctant to become involved.
Earlier in the month, unhappy workers at a
Sony factory in southwest France detained the
human resource director overnight and were
successful in securing improved terms for
those workers being laid off.
Obviously we cannot, tempting as it may
sometimes be, encourage such a practice.
However, should anyone decide to employ
such a tactic, please keep in mind that our firm
also provides excellent criminal defense
services!

Wrap Up
Miscellaneous
We hope you’ve enjoyed this first edition of the
Increase Your Bargaining Power Union Update. Please feel free to copy and
distribute this newsletter among your
membership, or even to those outside your
In the ongoing unit.
struggle to ensure a
fair wage, decent As always, please do not hesitate to contact us
benefits and a with any questions or problems you may be
modicum of job encountering. Please also let us know if you
security, French have any thoughts or suggestions for
workers have adopted improving this newsletter. If there are specific
a new strategy in their issues you would like to see discussed in
negotiations with future issues, or if you have a particular recent
management. This event or information which you would like to
Spring, it was reported share with the rest of our readership, please let
that workers at a 3M us know.
plant south of Paris
held their manager Comments or suggestions should be directed
hostage overnight in to Dan at 454-2181 or ddebolt@trevettlaw.com
response to a plan to
layoff half of the “An injury to one is an injury to all.”
workforce. A union - Industrial Worker’s of the World
representative told the 1905 Founding Convention
Reuters news service:
“Until we have a
7