2015-Mar-25 13:12 New York State DEC 5184029595 2/4 MewOroRK | Governor's Office STATEOE ge | of Employee Relations ANDREW M. CUOMO. MICHAEL N, VOLFORTE Governor Interim Ditector | FETS | sinsnces tant | March 16, 2015, Mr. James V. P. Hair Director of Labor Relations Public Employees Federation, AFL-CIO 1168-70 Troy-Schenectady Road P.O. Box 12414 Albany, New York 12212-2414 RE: Step 3 Decision PEF Class Action Keith Browne, et al. DEC Albany SUBJ,: Article 12 - Attendance and Leave OER File No. 2014-05-0410 Dear Mr. Hair: This is the Step 3 decision in the above-entitled grievance. A thorough review of the grievance file was conducted at Step 3. This is @ class action grievance filed on behalf of Professional, Scientific and ‘Technical Services Unit (PS&T Unit) employees of the New York State Department of Environmental Conservation (hereinafter the Agancy). The union alleges a violation of Article 12, Attendance and Leave, of the 2011-2015 PS&T Unit Agreement. The union's Stop 3 appeal alleges "DEC violated Article 12.17 of the PEF/State Agreement by using video surveillance data for timekeeping purposes.” The union requests that the Agency Cease and desist from using video surveillance cameras for timekeeping purposes, expunge any associated records, and make whole any employees who had time clocked or had to charge accruals based upon surveillance camera images. On May 16, 2014, two employees were interrogated for purported time and attendance abuses in response to an anonymous complaint filed with the Agency's Office of Internal Audit and Investigations. The resulting investigation yielded video surveillance footage suibsiantiating the complaint. At issue in this grievance is whether the current Agreement affords the Agency the discretion to utilize video surveillance 2 Lice Sisto Maca, Abary, NY 12228 | $16-474.6068 | swe oer ny gov2015-Mar-25 13:13 New York State DEC 5164029595 3/4 Mr, Hair OER File No. 2014-05-0410 March 16, 2016 Page 2 data obtained through the investigatory process for the purposes of counseling, discipline, andior the like. Article 12.17, Maintenance of Time Records, provides; No employee in this unit shall be required to punch a time clock or record attendance with a timekeeper (emphasis added). All employees in this unit shall be required to keep daily time records showing actual hours worked and shall maintain a daily record of absonces and leave credits eared and used in accordance with the ‘Attendance Rules on forms to be provided by the State, ‘subject to review and approval by the supervisor. ‘This language, specifically that which is emphasized above, restricts the Agency from requiring PS&T Unit employees to punch a clock or racord time with a timekeeper At no point did the Agency require the employees to perform any task that could be contused with punching a clock or recording attendance with a timekeeper. The omainder of Aricle 12.17 is not applicable as it establishes expectations of the Tiployee, not the Ayency. Accordingly, | must deny the Article 12.17 portion ofthis grievance. ‘The union also alleges that the Agency violated the side letter, Electronic Recogntion Systeme, on page 159 of the Agreement. However, | must also deny the Alleged violation of the side letter contained in Appendix I of the Agreement ‘Appendix Ill specifically provides on page 99 of the Agreement the following: ‘These documents are reproduced here for information. While thay are not subject to the provisions of Article 34 of the agreement, the State and PEF acknowledge that they are set forth certain understanding of the parties concerning ortain arficles; and confirm mutually accepted definitions ‘and clarification of the parties in connection with certain articles; and therefore have value in connection with the interpretation and application of certain article of the Agreement. Ag stated above, side letters are not subject to the provisions of Article 34. However, itis important to note that the side letter portion of the instant grievance would have been denied based upon ils merits if it was procedurelly viable, The side sea at issue reetricis the Agency from utilizing electronic recognition eystems for tne set clendance purposes. However, there has been no attempt by the union to define4/4 2015-Mar-25 13:13 New York State DEC 5164029595 Mr. Hair OER File No. 2014-05-0410 March 16, 2015 Page 3 what an electronic recognition system is, nor have they provided any evidence to support their position that video cameras constitute such a device. Conversaly, the State has provided examples of what constitutes an electronic recognition system in @ memorandum issued by the Governor's Office of Employee Relations on November 8, 2000. It provides, in pertinent part; Electronic recognition systems include systems that use Passwords, tokens and/or biometrics to identify, verify and/or monitor an employee. Examples of tokens are smart cards, swipe cards, badges with electronic chips and magnetic stripe cards. Biometrics are automated methods of recognizing a person using the person's fingerprint, signature, irs, retina, hand, and/or speech. Video surveillance footage does not constitute an electronic recognition system as described in the November 8, 2000 memo. Consequently, the use of data from video surveillance cameras is not prohibited by the Article 12.17 or the side letter on electronic recognition systems for the purposes of investigating alleged time and aitendance abuses. {tis incumbent upon the Agency to thoroughly investigate any claims of employee time theft, In this case, the Agency properly utlized video surveillance footage to substantiate claims that employees were “stealing time.” The State makes no apologies for utilizing contractually approved technology to substantiate cases of time theft that would otherwise leave tax payers footing the bill Based on the above, this grievance is denied. Sincerely, fer Richard R. Ahl Assistant Director MTRijpe co: M. W, Cadrette (ABN'g1 4-22) D. Greenberg CERTIFIED MAIL NO. 7013 3020 0001 0953 0211