BOARD OF COLLECTIVE BARGAINING

COBA, 10 OCB2d 19 (BCB 2017) (IP) (Docket No. BCB-4179-16)

Summary of Decision: The Union alleged that the City and DOC violated NYCCBL § 12-306(a)(1) and (4) by directly negotiating with bargaining unit members and making unilateral changes to mandatory subjects of bargaining. The City maintains that any communication that took place with these employees was simply to provide information and direction regarding the new programs to which they were being assigned and that there was no change of DOC policy or practice on these subjects. The Board found that DOC engaged in direct dealing and violated its duty to bargain in good faith concerning parking privileges. The Board did not find that DOC violated NYCCBL § 12-306(a)(1) or (4) with respect to any of the other claims. Accordingly, the petition was granted, in part, and denied, in part. (Official decision follows.)

OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING

In the Matter of the Improper Practice Proceeding -between- CORRECTION OFFICERS’ BENEVOLENT ASSOCIATION, Petitioner, -and- THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF CORRECTION,

Respondents. DECISION AND ORDER On August 30, 2016, the Correction Officers’ Benevolent Association (“Union” or “COBA”) filed a verified improper practice petition against the City of New York (“City”) and the New York City Department of Correction (“DOC”) (collectively “Respondents”). The Union alleges that Respondents violated § 12-306(a)(1) and (4) of the New York City Collective Bargaining Law (New York City Administrative Code, Title 12, Chapter 3) (“NYCCBL”) by

10 OCB2d 19 (BCB 2017) 2 directly negotiating with bargaining unit members and unilaterally changing working conditions without first negotiating those changes with the Union. 1 The Union asserts that DOC officials engaged in direct negotiations with Correction Academy cadets over benefits available to them upon assignment to two newly established units and implemented the results of those direct negotiations. The City maintains that it did not engage in direct negotiations with employees represented by the Union. It asserts that any communication that took place with these employees was simply to provide information and direction regarding the new programs to which they were being assigned and that there was no change of DOC policy or practice on these subjects. Thus, the City asserts that the Union has failed to establish that DOC endeavored to obtain bargaining unit members’ agreement on a matter affecting terms and conditions of employment or otherwise subverted members’ organizational rights. The Board finds that DOC engaged in direct dealing and violated its duty to bargain in good faith concerning parking privileges. The Board does not find that DOC violated NYCCBL § 12-306(a)(1) or (4) with respect to any of the other claims. Accordingly, the petition is granted, in part, and denied, in part.

BACKGROUND The Trial Examiner held four days of hearing and found that the totality of the record, including the pleadings, exhibits, and post-hearing briefs, established the relevant facts to be as follows:

1 The improper practice petition asserts violations of NYCCBL § 12-306(a)(1), (4), and (5); however, a violation of NYCCBL § 12-306(a)(5) was not advanced in the Union’s pleadings, at the hearing, or in its post-hearing brief. Thus, this decision will only address whether there was a violation of NYCCBL § 12-306(a)(1) and (4).

10 OCB2d 19 (BCB 2017) 3 The Union is the certified collective bargaining representative for DOC employees in the civil service title of Correction Officer (“CO”). The City and the Union entered into a memorandum of agreement on December 30, 2015, covering the period from November 1, 2011, to February 28, 2019 (“MOA”). After disbanding the Central Punitive Segregation Unit (“CPSU”), DOC developed multiple alternatives to punitive segregation. 2 At issue here is the Transitional Restoration Unit (“TRU”), which was created in 2014 as an alternative to punitive segregation for inmates ages 16 to 17, and the Secure Unit (“SU”), which was created in 2016 as an alternative to punitive segregation for inmates ages 18 to 21 with “a history of persistent violent and/or assaultive behavior and/or whose assaultive behavior results in a serious injury to staff, the public, or other young adults.” 3 (City, Ex. 4) The Union’s claims concern meetings that were held with management and a group of COs who for the most part were Correction Academy cadets in the process of completing initial training and scheduled to graduate in late May 2016. Four of these COs, Jesus Fernandez, Bridget Fowler, Kenneth Harrison, and Christopher Euvin testified to the alleged events. 4 The City did not present a witness to rebut these witnesses’ testimony regarding what transpired at the meetings. For the most part, the COs testimony was consistent, but relevant discrepancies are noted.

2 Punitive segregation is known colloquially as solitary confinement. 3 Both are located on Rikers Island; the TRU is located in the George Motchan Detention Center (“GMDC”), the SU is located in the George R. Vierno Center (“GRVC”).

4 For ease of reference, Fernandez, Fowler, and Harrison will be referred to as COs throughout this decision even though they were cadets until their graduation from the Academy.

10 OCB2d 19 (BCB 2017) 4 Unless otherwise noted, no union representatives were present during these meetings, and the following topics were discussed: Gate 1 passes, probationary periods, special assignment pay, shift reduction, and in-house mutuals. Shift reduction is the transfer of COs assigned to one unit to temporarily cover vacancies in another unit. Gate 1 passes allow COs to drive their cars directly to their assigned facility rather than park in a DOC lot farther away and take a bus. 5 Gate 1 passes are distributed by the Office of the Bureau Chief of Security. According to Captain Roy Miller, the Operations Captain to the Bureau Chief of Operations, these passes are given to supervisory employees, Captains and Assistant Deputy Wardens, and employees assigned to certain specialty units. 6 Some Gate 1 passes are assigned to individual employees, and some are given to the specialty unit and rotated among its employees. Specifically, a certain number of Gate 1 passes were rotated among CPSU employees prior to its closing. While Capt. Miller testified that units established as alternatives to CPSU received Gate 1 passes, he did not know whether the SU or the TRU were receiving Gate 1 passes. 7 The parties’ 2009-2011 Collective Bargaining Agreement (“Agreement”) provides for “special assignment pay” for COs detailed on “special assignment” in DOC and that such pay

5 Most COs use the two main parking lots on Rikers Island, the East and West lots, and take a bus from the lots to their assigned facility.

6 Like Capt. Miller, the COs testified that Gate 1 passes are given to supervisory employees and to employees assigned to certain posts, such as punitive segregation.

7 The City submitted affidavits from DOC Deputy Commissioner for Youth Offender Programming Winette Saunders, and Assistant Chief of Data Analytics Brian Sullivan, with its answer, but neither testified at the hearing. We note that like Capt. Miller, both Saunders and Sullivan affirmed that the issuance of Gate 1 passes was not guaranteed. Also like Capt. Miller, Sullivan affirmed that Gate 1 passes are occasionally provided to certain COs in certain steady assignments, such as a punitive segregation unit. He also asserted that there was an application process for the passes, and that they were sometimes given in recognition for good conduct.

10 OCB2d 19 (BCB 2017) 5 “shall be in the sole discretion of the Commissioner.” (City, Ex. 1) The Agreement limits the number of employees eligible for special assignment to 4.92% of the budgeted positions in the bargaining unit and states that the “initial receipt of special assignment pay shall commence upon completion of six (6) months of satisfactory performance in the special assignment designation.” (City, Ex. 1) The CPSU and the Mental Observation Segregation Unit had special assignment pay. Since they were disbanded, special assignment pay has been distributed to COs that work in adolescent housing areas in Robert N. Davoren Center, Restrictive Housing Units in Otis Bantum Correctional Center (“OBCC”) and GRVC, and Enhanced Security Units in OBCC. The SU and the TRU do not receive special assignment pay. A mutual is an agreement between two COs to swap tours. The swap takes place within a specified period and is subject to approval by DOC. The parties’ MOA includes a provision titled “Mutual Exchange of Tours,” which reads: a. Commanding Officers shall permit members performing similar duties to exchange tours voluntarily when there is no interference with correction service and where such exchange of tours does not result in overtime for either member. b. All mutuals shall be between two members and completed within a two week period. “Self-mutuals” are expressly prohibited.

(Joint, Ex. 1) Both a City witness and a Union witness explained that while regular mutuals are approved by the personnel office, in-house mutuals can be approved by the unit manager. 8 Capt. Miller testified that in specialty housing units, like the CPSU, in-house mutuals were approved by the unit manager, the assistant deputy warden of the specific unit.

8 CO Euvin testified that the difference between regular mutuals and in-house mutuals is that “instead of going to the personnel office, which is the administration office where they take care of our mutuals for the days off, instead of having to wait days to get it approved, our dep [Assistant Deputy Warden] would approve it on the spot.” (Tr. 154-55)

10 OCB2d 19 (BCB 2017) 6 The Secure Unit In May 2016 a few weeks before the cadet class’ graduation, Capts. Lomas and Wolmack, both captains at the Training Academy, gathered the class of cadets, including Fernandez, Fowler, and Harrison. Capt. Lomas explained to the cadets that they had been “selected” or “chosen” for a new unit called the SU based on their experience. 9 (Tr. 32, 34, 39, 89, 90, 129). A few days later, the same cadets met with the Commissioner at DOC headquarters. 10 The Commissioner explained the role of the SU and why the cadets had been selected to work in the SU and advised them that if they “had any questions or concerns, talk amongst yourselves, you know, but . . . you’re welcome to come back and discuss it at a later time.” (Tr. 39) Either shortly before or after the meeting at DOC headquarters, Capt. Wolmack told the cadets who were at the Headquarters meeting with the Commissioner that since they had all been selected for a new unit they could ask management for things such as Gate 1 parking passes (“Gate 1 passes”), special assignment pay, 11 and a shortened probationary period. 12 According to CO 9 The Union alleges that these meetings with the cadets were either part of a recruitment effort or that the statements made to the cadets were inducements for the assignment. None of the SU cadets testified that the assignment was voluntary. To the contrary, CO Harrison testified that the assignment was not voluntary.

10 CO Harrison testified about two separate meetings at DOC Headquarters with the Commissioner, while COs Fernandez and Fowler testified about one such meeting. For the most part, the testimony of COs Fernandez and Fowler is consistent with CO Harrison’s description of the second meeting at DOC Headquarters.

11 The COs testified about “hazardous duty pay,” “hazard pay,” and “hazardous pay.” (See, eg. Tr. 40, 119, 149, 178-179) In this decision we use the term “special assignment pay” for this type of compensation as that is the term used in the parties’ Agreement and post-hearing briefs. (City, Ex. 1)

12 CO Fowler and CO Harrison consistently testified about the content of Capt. Wolmack’s statements and varied only concerning when the statements were made. CO Harrison testified that Capt. Wolmack talked to the cadets on a bus ride back to the Academy after the first meeting with

10 OCB2d 19 (BCB 2017) 7 Fowler: “she told us to ask questions, ask for certain things. We asked her if we should ask for Gate 1, shortened probation, [special assignment] pay. She said yes. She said nothing is off the table, it’s a new unit, just ask, the worst they could say is no.” (Tr. 120) According to CO Harrison, Capt. Wolmack “said you know, you all have been selected to a new unit and you are in a position to ask for things, the most they can tell you is no” and gave them some suggestions like Gate 1 passes, special assignment pay, and shortened probationary periods. (Tr. 40) Shortly after the discussion with Capt. Wolmack, the cadets again met with the Commissioner at DOC Headquarters. The cadets were congratulated for being selected for the SU, told about the objectives of the SU, and introduced to SU Commanding Officer, Capt. Depreidine. 13 The Commissioner also said that there would be some “incentives” for working in the SU. (Tr. 119, 121) Thereafter, CO Harrison said, “my coworkers and I, we talked about some things … that we’d like to bring to the table that we’d like to ask for” including Gate 1 passes, shortened probation, and special assignment pay. (Tr. 70-71) With respect to a shortened probationary period, it is undisputed that management told the cadets that probationary periods would not be shortened. With respect to special assignment pay, the request was not rejected, but the cadets were not given a definitive answer. 14 In essence, management’s response was that the benefit may be possible, but they would have to look into it.

the Commissioner. CO Fowler testified that Capt. Wolmack talked to the cadets at DOC Headquarters before the cadets met with the Commissioner.

13 While COs Fernandez, Fowler and Harrison were all present at this meeting, they identified various supervisors who may have been present. In this regard, Capt. Wolmack, Dr. Adams, and Deputy Commissioner Saunders may have also been in attendance.

14 CO Harrison testified that the Commissioner told them that “due to budget constraints . . . [it] may or may not happen.” (Tr. 44) CO Fowler testified that the cadets were told that they “should get it,” (Tr. 119) and CO Fernandez testified that they were told that they would get back to us.

10 OCB2d 19 (BCB 2017) 8 The testimony of COs Fernandez, Fowler, and Harrison was not entirely consistent as to how management responded to CO Harrison’s request for Gate 1 passes. CO Harrison testified that the Commissioner clearly told the cadets that they would be getting Gate 1 passes. On the other hand, CO Fowler testified that the cadets were told they would not be getting Gate 1 passes because “there were not enough to go around,” and CO Fernandez testified that the cadets were told that they would get back to us. (Tr. 119) According to CO Harrison, management also informed the cadets that the ratio of inmates to COs in a “quad” would be eight to one. 15 There was no further discussion about the inmate to officer ratio, and the cadets did not raise any concerns about the ratio. In late May 2016, the cadets graduated from the Academy. Shortly after graduation, they were allowed to tour the SU with GRVC Warden Windley, GRVC Deputy Warden Hill, Capt. Depreidine, Union Recording Secretary Belfield, and Union Delegate CO Noel. During that tour, the Union representative objected to the eight inmates to one officer ratio per quad and the Union discussed an appropriate ratio with the Warden and Deputy Warden. (Tr. 51) After the tour, the Union representatives told the COs that the ratio had been resolved. When the COs got to the SU, the ratio was four inmates to two COs per quad. In September 2016, there was a meeting with the Commissioner, GRVC Warden Windley, Deputy Warden Espada, Capt. Augustin (an SU commanding officer), and some SU COs. 16 The 15 In the SU there are four locked rooms or quads, two libraries, a classroom, and an outdoor recreation area separate from the rest of the inmate population. The locked quads have telephones, televisions, and tables. The inmates meet with each other, with COs, and with other programming providers in the quads.

16 CO Harrison was the only witness that testified about the September 2016 meeting with the Commissioner.

10 OCB2d 19 (BCB 2017) 9 COs were asked how the inmates were responding to the SU and how the COs were doing. The Commissioner asked about the status of the Gate 1 passes for the SU and was upset when Warden Windley responded that the Gate 1 passes had not been issued to the COs. The Commissioner told the Warden, “this doesn’t make any sense, we made a promise to them, let’s give them the damn Gate 1s.” (Tr. 58) Additionally, Capt. Augustin mentioned to the Commissioner that there were risks of “shift reduction,” in the SU. 17 In response to Capt. Augustin’s concerns regarding shift reduction, the Commissioner stated that they would not shift reduce the SU because the unit needed to be properly staffed. The Warden and Deputy Warden agreed with the Commissioner’s statement. Later in September 2016, the COs assigned to the SU were given generic Gate 1 passes issued by the Chief of the Department that had no expiration date. Shortly thereafter, each CO assigned to the SU was issued an individualized Gate 1 Pass with their name, vehicle information, and a one-year expiration date. In December 2016, CO Harrison asked Deputy Warden Espada about special assignment pay and Deputy Warden Espada told him that he still hadn’t heard anything regarding if or when the COs would get it. 18 The Transitional Restoration Unit In September 2016, the TRU moved locations within GMDC. When the TRU moved, there was a three-day orientation for staff assigned to the TRU, at which no Union representatives

17 Although the inmate to officer ratio in the SU quads had not been affected yet, temporarily transferring COs out of the SU due to staffing issues could make it difficult to maintain the ratio in the quads in the future.

18 Deputy Warden Espada did not testify.

10 OCB2d 19 (BCB 2017) 10 were present. 19 The orientation consisted of presentations on the goals of the TRU, training on the types of inmates in the unit and the programs intended to help the inmates reintegrate back into the general population, and tours of the newly constructed housing area. At some point during the orientation, a CO who had been assigned to the TRU prior to its relocation made a request for in-house mutuals, Gate 1 passes, and special assignment pay. Assistant Deputy Warden Shannon responded that the TRU COs would be granted in-house mutuals and Gate 1 passes and that special assignment pay was something they were going to work on getting them. Sometime after the orientation, in-house mutuals and Gate 1 passes were granted to TRU COs. The Gate 1 passes are rotated among the TRU COs. There is no evidence that COs received special assignment pay or that this benefit was discussed again after the September 2016 orientation meeting.

POSITIONS OF THE PARTIES Union’s Position The Union contends that DOC violated NYCCBL § 12-306(a)(1) and (4) by engaging in direct negotiations with Academy cadets over five benefits that might become available to them upon assignment to two newly established units, specifically Gate 1 passes, special assignment pay, shortened probationary periods, limitations on shift reduction, and in-house mutuals. 20 19 CO Christopher Euvin was the only witness to testify concerning the meeting with TRU COs. After graduating from the Academy in May 2016, Euvin was assigned to work in both the TRU and another Housing Unit. He requested and was granted an assignment exclusively to the TRU in July 2016 and was permanently appointed to the TRU in September 2016.

20 NYCCBL § 12-306(a) provides, in pertinent part, that: It shall be an improper practice for a public employer or its agents:

10 OCB2d 19 (BCB 2017) 11 Additionally, the Union asserts that DOC has granted Gate 1 passes, in-house mutuals, and a moratorium on shift reduction, which are mandatory subjects of bargaining, without first negotiating with the Union. 21 According to the Union, the record establishes that supervisory DOC officials including the Commissioner, a Deputy Commissioner, Wardens, Deputy Wardens, and Captains engaged in direct communication with bargaining unit members at multiple meetings without the Union’s presence in order to recruit cadets. 22 Further, the Union asserts that the topics discussed were terms and conditions of employment. As for Gate 1 passes, it argues that free parking is a

(1) to interfere with, restrain or coerce public employees in the exercise of their rights granted in [§] 12-305 of this chapter;

* * * (4) to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees;

NYCCBL § 12-305 provides, in pertinent part, that: “Public employees shall have the right to self-organization, to form, join or assist public employee organizations, to bargain collectively through certified employee organizations of their own choosing and shall have the right to refrain from any or all of such activities.”

21 Initially, the Union claimed that DOC also engaged in direct dealing with the COs concerning the inmate to officer ratio in the SU. The Union did not advance this claim in its post-hearing brief. Instead, it cited to the evidence presented that the Union representatives persuasive challenge to DOC’s initial staffing ratio resulted in a reduction in the ratio that aided the cadets. Accordingly, we do not address the claim further.

22 The Union urges that the affidavit of Deputy Commissioner Saunders carries no weight and should be disregarded and that an adverse inference should be drawn as to all topics contained in her affidavit. Because Deputy Commissioner Saunders did not testify, her assertions that Gate 1 passes and special assignment pay are not guaranteed for COs in the SU and the TRU have only been considered to the extent they corroborate other facts in the record. See fn. 7.

10 OCB2d 19 (BCB 2017) 12 mandatory subject of bargaining because it is an economic benefit to employees. As a result, the Union asserts that Gate 1 passes, an improved parking option, are a mandatory subject of bargaining. As for special assignment pay, the Union asserts that while the Agreement grants the Commissioner the sole discretion to designate COs on special assignment, special assignment pay is a monetary benefit and a mandatory subject of bargaining. Indeed, the Union argues that, as the party with the right to agree to the sole discretion language in the contract, the Union has the corresponding right to bargain over any changes to the contractual provision. Further, the Union asserts that shortened probationary periods and in-house mutuals are mandatory subjects of bargaining. It argues that probationary periods are part and parcel of the evaluation process for newly hired employees, 23 and in-house mutuals involve scheduling and rescheduling of shifts. As for the prohibition on shift reduction, the Union asserts that while it may be seen as a change in work location without an economic impairment, a non-mandatory subject, it is certainly not a prohibited subject of bargaining. Thus, the Union asserts that DOC violated the NYCCBL by directly negotiating these items. According to the Union, DOC sought to establish a negotiating relationship with unit members to the exclusion of their bargaining agent. The Union asserts that Capt. Wolmack specifically invited the selected cadets to engage in a discussion over terms and conditions of employment and that this invitation satisfies the portion of the standard that requires the employer to attempt to establish a negotiating relationship. The Union also asserts that other supervisory

23 The Union acknowledges that the Board held otherwise in LEEBA, 79 OCB 18, at 22 (BCB 2007); however, it asserts that the Board overlooked the overriding purpose of probationary periods as part of a system of evaluation and that probationary periods are purportedly at the discretion of the employer, not imposed upon the employer.

10 OCB2d 19 (BCB 2017) 13 personnel were present for Capt. Wolmack’s comments and they failed to discourage her invitation. Further, DOC officials actually engaged in negotiations. Indeed, the Union argues that the negotiations with high-ranking officials led to decisions regarding several tangible benefits that were realized including Gate 1 passes, in-house mutuals, and a prohibition on shift reductions. Additionally, one requested benefit (special assignment pay) was tabled, and one (shortened probationary periods) was rejected. Regardless, each topic was given consideration and addressed specifically by management. Moreover, it argues, the fact that the cadets may have made the initial demands does not negate DOC’s response, which was bargaining directly with the COs. Finally, because the Union forcefully advocated regarding the inmate to officer ratio and affected a change that aided the cadets, DOC saw the Union as an obstacle to establishing working conditions in the SU and the TRU. According to the Union, by unilaterally implementing the directly negotiated items, the City further violated the NYCCBL. Thus, the Union requests that the Board grant the petition and require the employer to cease and desist from engaging in direct dealing with the Union’s members and cease and desist the conditions of employment that are the product of direct dealing. City’s Position The City argues that the instant petition must be dismissed as DOC has not violated NYCCBL § 12-306(a)(1) or (4). It alleges that DOC did not engage in direct dealing over any subject affecting terms and conditions of employment with cadets assigned to the SU or the TRU. 24 24 The City argued that the assignment of cadets to the SU and the TRU were in its discretion in the exercise of its rights under NYCCBL § 12-307(b) and not voluntary. The Union did not advance a claim challenging the City’s discretion to assign the cadets and therefore a full summary of the City’s response is unnecessary.