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STATE OF NEW YORK PUBLIC EMPLOYMENT RELATIONS BOARD

In the Matter of CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, Charging Party, -andOLYMPIC REGIONAL DEVELOPMENT AUTHORITY, Respondent. CASE NO. U- 32018

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

DECISION OF ADMINISTRATIVE LAW JUDGE On July 6, 2012 , the Civil Service Employees Association,. Inc., Local1000, AFSCME. AFL-CIO (CSEA) filed an improper practice charge alleging that the Olympic Regional Development Authority (Authority) violated 209-a.1 (d) of the Public Employees' Fair Employment Act (Act) when it failed to vote on whether or not to ratify
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a tentative agreement reached by the parties' negotiating representatives. The Authority filed an answer denying that its conduct violated the Act and asserting by way of affirmative defense that the charge is untimely filed. A prehearing conference was held before Assistant Director Susan A. Comenzo on 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 for the record. By letter of September 28, 2012, the Authority advised Assistant Director Comenzo that the parties were unable to stipulate to the facts in this matter. By letter of October 1, 2012, CSEA advised Assistant Director Comenzo that it believed certain facts in the case were undisputed, specifically those allegations the Authority admitted in its answer, but that the Authority indicated that it was directed by the Governor's Office of Employee Relations not to stipulate to any facts. Assistant Director Comenzo wrote the parties on October 22, 2012, and advised that the record in this case would consist of the pleadings, the Authority's letter of September 28, 2012, in response to her letter of August 10, 2012, and CSEA's letter of October 1, 2012. The Authority was directed to file a statement of any facts it wished to present for the record specifically facts related to the denials set forth in its answer, no later than November 5, 2012. By letter of November 2, 2012, the Authority responded to Assistant Director Comenzo's directive to file facts it wished to offer. The Authority advised that it took exception to Assistant Director Comenzo's directive that it submit facts with respect to allegations that had been denied or that it offer any evidence prior to CSEA offering facts in support of its claim. Following receipt of the Authority's November 2, 2012 letter, Assistant Director Comenzo wrote the parties on December 8, 2012, and advised that the Authority's objection to the creation of a record as set forth in her letter of October 22, 2012 was denied; 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 the opportunity to do so; and that the record was closed. By letter of December 24, 2012, I advised the parties that the case had been transferred to me for decision and set a briefing date. Both parties filed briefs.
FACTS

The undisputed facts are as follows: 1. CSEA is the exclusive negotiating representative of a unit of employees of the Authority; 2. CSEA and the Authority are parties to a collectively negotiated agreement covering 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 the Authority'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 and CEO of the Authority, requesting notification regarding the Authority's intentions regarding ratification of the tentative agreement. 6. On or about June 11, 2012, Williams received a letter from Blazer advising that the next board meeting was scheduled for June 19, 2012, and that the board was expected to address the matter at that time. 7. At the June 19, 2012 meeting of the Authority's board the tentative agreement was not placed on the agenda and neither did the board act on the tentative agreement or ratify the tentative agreement.

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8. The Authority offered no facts with respect to its denials or any other aspect of this case despite having been given an opportunity to do so. DISCUSSION In City of Dunkirk, the Board held that ... ratification, being part of the bargaining process, is subject to the same standards of good faith as govern the bargaining itself. Reasonable expedition is no less expected in ratification than in bargaining, and that reasonableness is similarly judged by the totality of circumstances under 2 the facts of each case. The 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 or explanation the Authority failed to consider or vote on whether or not to ratify the agreement. As a result, the Authority will be found to have violated 209-a.1 (d) of the Act and, by its conduct to have waived its right to ratify the agreement and be ordered to execute the same, unless its defenses have merit. An improper practice charge alleging a violation of the Act must be filed within four months of the act complained of.
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The Authority advised CSEA that its board was

expected 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 was not placed on the board 's agenda and , thereafter on July 6, 2012, CSEA filed this charge , well within four months of the violation alleged.

25 PERB 1J3029 (1992).

/d. at 3061. See a/so Jamesville-DeWitt Cent Sch Dist, 22 PERB 1J3048 (1989) and Utica City S.ch Dist, 27 PERB 1J3023 (1994), affg 26 PERB 1J4652 (1993).

Rules 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 is reached there is no continuing duty to bargain and thus no basis upon which to find that it 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 to ratification, which is subject to the same standards of good faith as govern the bargaining itself.
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.The Authority argues further that CSEA failed to meet its burden in that it failed to establish that the Authority's board was under a legal obligation to consider and act on the ratification of the parties' tentative agreement. In Utica City School District, the Board explained that [e]mployer ratification of a contract is a privilege obtained by and belonging to the chief executive. It exists when properly reserved as a condition to the chief executive's otherwise absolute duty to execute on demand a writing embodying the agreements reached during negotiations. The Chief executive alone, not the legislative body, has the right and duty to bargain and is responsible for any failure by the legislative 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 show that the Authority failed to bargain in good faith. The Authority acts through its chief executive officer. When its chief executive officer failed to ensure that its governing board acted on ratification within a reasonable time, a violation occurred. The
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City of Dunkirk, supra, at 3061.

27 PERB 1f3023, 3055-56 (1994).

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Authority's argument regarding CSEA' s failure to meet its burden of proof is therefore rejected. The Authority, in failing' to act upon ratification of the tentative agreement reached by the parties, violated 209-a.1 (d) of the Act. By its conduct the Authority has waived 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; and 2. Sign and post the attached notice at all physical and electronic locations customarily used to post notices to unit employees.

Dated at Buffalo, New York this 22nd day of May, 2013

Jean Doerr Administrative Law Judge

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NOTICE TO ALL EMPLOYEES


PURSUANT TO
THE DECISION AND ORDER OF THE

NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD


and in order to effectuate the policies of the

NEW YORK STATE PUBLIC EMPLOYEES' FAIR EMPLOYMENT ACT


we hereby notify all employees of the Olympic Regional Development Agency in the unit represented bythe Civil Service Employees Association, Inc., Local1000, AFSCME, AFL-CIO (CSEA) that the Olympic Regional Development Agency will execute, upon demand by CSEA, the 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 be altered, defaced, or covered by any other material.

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