BOARD OF CERTIFICATION

LEEBA, 15 OCB2d 20 (BOC 2022) (Rep) (Docket Nos. RU-1683-21 & RU-1684-21)

Summary of Decision: LEEBA filed a petition to fragment Special Officers and Supervising Special Officers employed at DCAS from a bargaining unit represented by Local 237 that includes Special Officers and Supervising Special Officers at various City agencies and at HHC. LEEBA argued that the Supreme Court’s decision in Janus and additional law enforcement duties and training constituted changed circumstances such that placement of these titles in their current bargaining unit is no longer appropriate. Local 237 and the City argued that there were no new circumstances that warrant the fragmentation of the titles from the existing unit. The Board found the holding of Janus did not change the Board’s long-standing fragmentation standard and that LEEBA’s assertions do not establish changed circumstances warranting fragmentation. Accordingly, the petition was dismissed. (Official decision follows.) __________________________________________________________________

OFFICE OF COLLECTIVE BARGAINING BOARD OF CERTIFICATION

In the Matter of the Certification Proceeding -between- THE LAW ENFORCEMENT EMPLOYEES BENEVOLENT ASSOCIATION,

Petitioner, -and- CITY EMPLOYEES UNION, LOCAL 237, INTERNATIONAL BROTHERHOOD OF TEAMSTERS AND THE DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES,

Respondents. __________________________________________________________________

DECISION AND ORDER On October 28, 2021, and November 26, 2021, the Law Enforcement Employees Benevolent Association (“LEEBA”) filed petitions, docketed as RU-1683-21 and RU-1684-21, respectively, to represent employees at the Department of Citywide Administrative Services

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(“DCAS”) in the titles of Special Officer (Title Code No. 70810) and Supervising Special Officer (Title Code No. 70817), respectively. LEEBA’s petitions, which have been consolidated, seek to fragment the DCAS Special Officers and Supervising Special Officers (collectively “DCAS Special Officers”) from their current bargaining unit and represent them in a new bargaining unit. LEEBA argues that there are changed circumstances since 2018, when the Board found that DCAS Special Officers were appropriately placed in their current bargaining unit, that warrant fragmentation: (1) the Supreme Court’s decision in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), and (2) additional law enforcement duties. Respondents argued that employees’ First Amendment right to not pay agency fees does not change the legal standard for fragmentation and that DCAS Special Officers did not have new law enforcement duties that warrant fragmentation from the existing bargaining unit. The Board finds that LEEBA’s assertions do not establish changed circumstances warranting fragmentation of DCAS Special Officers from other employees in the same titles. Accordingly, the petition is dismissed.

BACKGROUND DCAS Special Officers are currently represented by the City Employees Union, Local 237, International Brotherhood of Teamsters (“Local 237”) in Certification No. 67-78, a bargaining unit that includes DCAS Special Officers at various City of New York (“City”) agencies, including but not limited to New York City Health + Hospitals (“HHC”) and the District Attorney’s Offices of the Bronx, Kings, and New York Counties, as well as supervisory and non-supervisory employees in various stock, custodial, inspectional, maintenance, skilled craft, and related titles. 1

1 Special Officers and Supervising Special Officers who are subject to Local Law 56 of 2005 are represented by Local 237 in a different bargaining unit. See DC 37, 7 OCB2d 1, at 80 (BOC 2014), affd., Matter of City of New York v. Bd. of Certification of the City of New York, Index No.

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DCAS Special Officers have been in their current bargaining unit since at least 1996. On two prior occasions since 2014, unions have sought to remove some or all of these titles from this bargaining unit. See LEEBA, 11 OCB2d 13 (BOC 2018) (denying petition to fragment all Special Officers because petitioner failed to allege sufficient evidence of changed circumstances since the Board’s decision in HHC PBA, Inc. to warrant fragmentation); HHC PBA, Inc., 8 OCB2d 20 (BOC 2015) (denying petition to fragment only HHC Special Officers because they were not designated as police officers under the Criminal Procedure Law (“CPL”) and the title’s exclusive or primary duties did not include the enforcement of the general laws of the state). Based on the affidavits, exhibits, and stipulated facts, we find the following: 2 The job specification for Special Officers provides that Special Officers are peace officers pursuant to CPL § 2.10 and that Special Officers must maintain a peace officer training certification as a condition of employment. 3 It is undisputed that DCAS Special Officers’ job duties are determined by the job specification, which states that certain assignments for Special Officers require that the officer carry a firearm while on duty. The job specification states that Special Officers perform work that

400199/2014; Matter of CEU, L. 237 v. Bd. of Certification of the City of New York, Index No. 100180/2014 (Sup. Ct. N.Y. Co. Jun. 15, 2015) (Moulton, J.). For a full history of the Special Officer bargaining unit, see LEEBA, 11 OCB2d 13, at 2-6 (BOC 2018).

2 Following a conference, the parties stipulated to the undisputed facts. To the extent any assertions in the pleadings or affidavits are contrary to the parties’ stipulated facts, we disregard such assertions.

3 Since 1980, Special Officers have been defined as peace officers under the CPL. As peace officers, Special Officers have the power to conduct searches and make arrests; issue appearance tickets, summonses, and complaints; take custody of firearms for disposing, guarding, or any other lawful purpose consistent with his or her duties; and any other power the Special Officer is otherwise authorized to exercise when acting pursuant to his or her duties. See CPL § 2.20. In accordance with CPL § 2.30, Special Officers receive peace officer training, with one portion that is prescribed by a municipal police training council and another portion that is prescribed by the employer.

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relates to physical security, safety, loss prevention, and maintenance of order. It further provides that Special Officers’ typical tasks may include: patrol of public buildings, other facilities, and surrounding areas to maintain order, preserve the peace, and safeguard life and property against fire, vandalism, theft, etc.; give routine information to visitors and clients and direct them to the proper individuals and offices; discourage and eject loiterers and disorderly persons when appropriate; arrest and issue summonses to law violators on premises; transport, escort and/or arrange for transport of persons in custody to police precincts; testify in court on arrests; report security instances and unusual occurrences by telephone or radio; provide assistance to the sick, injured, mentally and physically disabled, and call for ambulances and/or medical attention when necessary; make rounds; control vehicular traffic on grounds; operate a motor vehicle; monitor and control access by the means of electronic security systems and report unusual events; and perform related work. In addition, Special Officers may be responsible for completing, forwarding or maintaining certain written records such as: daily actions or logs, arrest reports and records, security and other incident reports, and building visitor registers. It is undisputed that DCAS Special Officers are not authorized to perform any job duties that are not described in the job specification. It is also undisputed that the job specification has not changed since April 2018, but for the addition of the sentence “Special Officers may be required to wear and operate a body-worn camera and employ the computer software that goes along with it.” 4 It is undisputed that any changes to DCAS Special Officers’ training have not resulted in any changes to their job duties.

4 See https://www1.nyc.gov/assets/dcas/downloads/pdf/noes/20222020000.pdf (Last visited on July 7, 2022.)

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DCAS Special Officers are assigned to DCAS-owned or leased properties (“DCAS properties”), and their jurisdiction is limited to DCAS properties. 5 DCAS Special Officers are not authorized to respond to an incident that occurs outside of DCAS properties and their immediate surrounding areas. 6 They are not authorized by DCAS to conduct off-duty arrests but are authorized to arrest individuals while on-duty. DCAS Special Officers have arrested individuals outside the bounds of DCAS properties on at least four occasions. In those incidents, the DCAS Special Officers were traveling to or from their assigned post at a DCAS property when they were approached by members of the public who reported an ongoing crime. It is undisputed that DCAS Special Officers drive patrol vehicles, but DCAS does not dispatch Special Officers via patrol car to respond to ongoing incidents. DCAS vehicles driven by DCAS Special Officers are not classified as emergency vehicles and are not equipped with radios, emergency lights, or sirens. DCAS patrol cars are equipped with arrest cages. DCAS Special Officers are not authorized to violate the Vehicle and Traffic Law. DCAS Special Officers are also issued cell phones. 7

5 We take administrative notice that DCAS manages 55 buildings in the City, 29 of which are courthouses. See https://data.cityofnewyork.us/City-Government/DCAS-Managed-Public-Buildings/xx2p-4jnq/data (Last visited July 12, 2022.) Order, safety, and security at New York State courthouses is provided by New York State Court Officers, who must qualify for and remain eligible to purchase and carry firearms as a condition of employment and are designated as peace officers under the CPL. See http://ww2.nycourts.gov/cot-trainee-exam-45-815-faqs-34306#g7 (Last visited July 12, 2022.)

6 Special Officers Justin Capote, Bryan Mulholland, and Supervising Special Officer Christian Calderon affirmed that their job duties are to protect tenants and visitors and properties owned, leased, and operated by DCAS, as provided on DCAS’ website. Supervising Special Officer Calderon affirmed that he is a certified firearms instructor and trains others, including DCAS Special Officers to use firearms.

7 Respondents contend that DCAS Special Officers have been issued cell phones since the late 1990s.

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Since 2002, some DCAS Special Officers have carried firearms, specifically handguns, while on duty. Carrying a firearm is not a condition of employment for DCAS Special Officers. DCAS Special Officers can apply for a “Carry Guard License,” which is issued by the Police Department (“NYPD”), if they wish to carry a firearm while on duty. 8 Currently, approximately 40% of DCAS Special Officers carry firearms on duty. All DCAS facilities but one have lock boxes for DCAS Special Officers to store their firearms when they are off duty. DCAS Special Officers at the one facility that does not have lock boxes carry their firearms to and from work. Since 2002, DCAS Special Officers have been informed of the NYPD’s “color of the day,” which is used to allow law enforcement officials to identify undercover NYPD officers. Also since 2002, DCAS Special Officers have been assigned to conduct wellness checks and serve process on DCAS employees at their residences in the City as well as in Nassau, Westchester, Suffolk, Rockland, Orange, and Putnam counties. DCAS Special Officers have never entered the domicile of a DCAS employee while performing these duties. A DCAS Daily Incident Report dated October 13, 2021, details four incidents that DCAS Special Officers responded to on that date. One of the entries describes how DCAS Special Officers responded to the entrance of their assigned post at Queensborough Hall after receiving reports of a shooting outside of the building. The Daily Incident Report details that NYPD officers responded to the entrance of Queensborough Hall and that the DCAS Special Officers assisted the

8 We take administrative notice that the NYPD describes a Carry Guard License as a license for “Security guards, etc.” and notes that the gun “[m]ay be carried only while the licensee is actively engaged in employment for the company whose name appears on the license and/or while licensee is in transit directly to or from residence and place of employment. At all other times, the handgun must be stored unloaded in a locked container, at either the address on the license or at the employee’s legal residence (within the state of New York.) See https://licensing.nypdonline.org/new-app-instruction/ (Last visited on July 12, 2022.)

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NYPD in gathering statements from potential witnesses. The Daily Incident Report also details a separate incident where a Special Officer investigated two vehicles that were parked next to Queensborough Hall in a reserved parking space and two other entries concerning incidents at two other DCAS properties. The Daily Incident Report does not state that any of the DCAS Special Officers left the grounds of any DCAS property when responding to any of the incidents. The most recent class of DCAS Special Officers received 645.5 hours of training, which is a program that is more time intensive than the training that other classes of Special Officers receive. This training program included training in tactical situations. However, DCAS does not have a tactical team, has no plans to create a tactical team, and has not ordered any equipment for a tactical team. DCAS also requires its Special Officers to complete an annual recertification training program. 9 At times, DCAS has maintained a Patrol Guide that described guidelines for how DCAS Special Officers should respond to the certain situations. In September 2019, the DCAS Patrol Guide was revised. 10 It is undisputed that that the 2019 Patrol Guide was revoked in January of 2021 because some of the topics it included were outside the bounds of the job duties of DCAS Special Officers. However, while the Patrol Guide was in effect, it was used during training, and DCAS Special Officers were trained on topics including but not limited to active shooters, barricaded suspects, bomb threats, off duty arrests, and specialized units such as canine and aerial support units, which DCAS does not have. There is currently no active DCAS Patrol Guide, and no new classes of DCAS Special Officers will be trained until a new Patrol Guide has been issued.

9 In addition, LEEBA alleges that as a result of the COVID Pandemic, DCAS issued reporting details for Recruit Emergency Operational Deployment, which outlines the procedures by which DCAS Special Officer recruits are to report to duty in the event of an emergency.

10

LEEBA did not provide any evidence of any Patrol Guide that predates the 2019 Patrol Guide.

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The 2019 DCAS Patrol Guide was never used as a basis for discipline for DCAS Special Officers. Disciplinary regulations for DCAS Special Officers are determined by the DCAS Code of Conduct. In order to demonstrate the costs of Local 237's administration of its welfare funds, LEEBA submitted excerpts from the City Office of the Comptroller’s Special Report on the Analysis of the Financial and Operating Practices of Union-Administered Benefit Funds with Fiscal Years ending in Calendar Year 2018 (“Comptroller’s Report”). The excerpts from the Comptroller’s Report detail the administrative expenses reported by Local 237 and other municipal unions compared to their reported revenues.

LEEBA’s Position

POSITIONS OF THE PARTIES

LEEBA argues that there are changed circumstances since the Board’s 2018 decision that warrant fragmentation of DCAS Special Officers from Local 237’s bargaining unit. First, LEEBA contends that the Janus decision drastically changed the circumstances concerning public sector unions when it affirmed that public sector employees had a First Amendment right to not pay dues to a union. LEEBA further contends that strict fragmentation rules prevent these employees from exercising their First Amendment right to designate a union of their choosing. Due to these rules, members who no longer wish to support Local 237 are required to pay agency fees to a union that they do not wish to represent them or, alternatively, are forced to withhold agency fees and have an ineffective bargaining unit, in violation of Janus. LEEBA avers that both these scenarios violate City and New York State (“State”) public policy and that the existing procedures and decisional law of the Office of Collective Bargaining (“OCB”) did not contemplate the ability of employees

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to opt-out of paying dues without the obligation to pay agency fees. LEEBA also argues that each employee receives contractually obligated annuity fund contributions and welfare fund benefits in exchange for their work and that they have a right to designate another union as their representative, so they do not have to provide Local 237 with these payments. Further, LEEBA avers that the First Amendment rights of the DCAS Special Officers who no longer wish to support Local 237 are being violated because Local 237 has the exclusive right to choose the financial advisors who control their funds, make benefit level choices, and control related investments. LEEBA points to the Comptroller’s Report to argue that Local 237 is mismanaging the funds over which it exercises exclusive control. It argues that as a result, the Board’s strict fragmentation rules and policies are a violation of the First Amendment rights of the DCAS Special Officers who no longer wish to support Local 237. LEEBA contends that its First Amendment argument concerning the impact of Janus is novel and therefore, is not barred by res judicata, as asserted by Local 237 and the City. Accordingly, LEEBA seeks a re-evaluation of the OCB’s rules concerning the fragmentation and proliferation of bargaining units in light of Janus. Second, LEEBA argues that fragmentation of DCAS Special Officers is now appropriate because since the Board’s 2018 decision in LEEBA, 11 OCB2d 13, DCAS Special Officers now receive more training and have more law enforcement duties than any other type of Special Officer in the State. As a result, LEEBA asserts that DCAS Special Officers should qualify for the law enforcement exception that the Board adopted in 2005 when the Board fragmented Environmental Patrol Officers (“EPOs”). See LEEBA, 76 OCB 3 (BOC 2005). LEEBA argues that the length and nature of DCAS Special Officers’ training demonstrate that fragmentation is appropriate. DCAS Special Officers receive slightly less training than NYPD recruits, but more training than the State Environmental Conservation officers discussed in LEEBA. DCAS Special Officers

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receive training on a wide array of law enforcement topics, including training in tactical situations. According to Petitioner, the training that DCAS Special Officers receive is virtually equivalent to that of NYPD officers. LEEBA also contends that it has demonstrated sufficient changed circumstances to the job duties of DCAS Special Officers. It alleges that DCAS Special Officers’ duties far exceed those of other Special Officers in their bargaining unit, such as those employed by HHC. Specifically, DCAS Special Officers carry firearms and, LEEBA asserts, enforce the general laws of the state, which distinguishes them from HHC Special Officers. According to LEEBA, the primary duty of HHC Special Officers is to provide security to HHC facilities. LEEBA points to the nature of the equipment that that DCAS Special Officers utilize, including firearms, body armor, and marked patrol cars, and that they are required to respond to emergency calls twenty-four hours a day. Based on its claim that the training and law enforcement duties of DCAS Special Officers have increased since 2018, LEEBA argues that the Board should find that DCAS Special Officers meet the same specialized law enforcement exception to fragmentation that EPOs qualified for in 2005. LEEBA asserts that EPOs are responsible for enforcing the general laws of the State anywhere within and outside the area of their jurisdiction. LEEBA argues that similarly DCAS Special Officers can respond to incidents anywhere in the City and can be the first and only law enforcement agency to respond. LEEBA asserts that its showing of interest cards indicate that Local 237 members no longer wish to be represented by Local 237 and that these individuals revoked any designation of authorization they have previously made that they be represented by Local 237 for the purposes of collective bargaining. LEEBA requests that the Board hold an election so that the DCAS Special

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Officers can exercise their constitutional and statutory rights to designate LEEBA as their bargaining representative. Local 237’s Position Local 237 argues that the petition should be dismissed because LEEBA has not proffered any facts evincing a change of circumstances that would warrant overturning the Board’s 2018 determination that DCAS Special Officers should not be fragmented from their current bargaining unit. It states that it has effectively represented all Special Officers since 1966. Local 237 cites to previous decisions by the Board ruling against the fragmentation of the Special Officer title, finding: (1) there was no conflict of interest with other titles in the unit; and (2) the Special Officer’s command structure, training, job responsibilities, and duties did not warrant fragmentation. With respect to LEEBA’s argument concerning Janus, Local 237 asserts that Janus has no relevance to the question here, which is not about free speech or union dues, but the appropriate standard for bargaining unit fragmentation. Local 237 avers that bargaining unit members are not required to be union members, or pay dues or agency fees. It states that there are no Board cases that would support fragmentation here and that LEEBA has not pointed to any facts or law supporting its position. Local 237 notes that PERB has dismissed claims that were similar to LEEBA’s claim in this case. In one of those cases, LEEBA argued that the holding in Janus necessitated a change to PERB’s standard for fragmentation. Local 237 argues that each issue raised by LEEBA here has been fully litigated between the parties and that LEEBA should therefore be collaterally estopped from relitigating this issue before this Board. Local 237 avers that LEEBA has not offered evidence of any new job duties that DCAS Special Officers must perform since the Board issued its last decision concerning the fragmentation

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of DCAS Special Officers. Local 237 denies that any of the new training relied on by LEEBA has resulted in any changed duties for DCAS Special Officers and maintains that each of the new duties of DCAS Special Officers alleged by LEEBA are not duties, but rather, are examples of hypothetical situations about which DCAS Special Officers received training. Further, as evidence that the jurisdiction of DCAS Special Officers is limited to DCAS properties, Local 237 notes that the Daily Incident Report has a column for “Building,” which contains the addresses of DCAS properties. Local 237 argues that this evidence and LEEBA’s affidavits acknowledge that DCAS Special Officers are assigned to guard DCAS property and are authorized to respond to incidents on their assigned properties and are not dispatched to respond to locations across the City. City’s Position The City argues that the petition should be dismissed because none of the relevant circumstances for DCAS Special Officers have changed since the Board’s 2018 decision and because the creation of a new bargaining unit would violate the Board’s longstanding policy against the proliferation of bargaining units. With respect to LEEBA’s argument concerning the impact of Janus, the City contends that LEEBA misreads Janus, which applies only to the payment of fees by non-members of public sector unions and does not constitute a changed circumstance that would necessitate creation of a new bargaining unit. The City notes that the Supreme Court recognized that it is also not disputed that the State may require that a union serve as exclusive bargaining agent for its employees. Additionally, the City asserts that Janus did not change the duties or training of DCAS Special Officers. The City argues that the petition should be dismissed under the doctrine of res judicata since the issues alleged in this petition are “the exact same” as the previous representation petition

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concerning DCAS Special Officers filed by LEEBA. (City Ans. ¶ 2). The City further contends that the total number of DCAS Special Officers is a small fraction compared to the total number of employees in the bargaining unit and that fragmenting them would be detrimental to labor relations generally. The City avers that LEEBA has not offered evidence of any new duties since the Board’s prior decision. For example, DCAS Special Officers have conducted wellness checks and service administrative notices since 2002. Further, with regard to the additional subjects on which DCAS Special Officers received training since 2018, the City argues that longstanding Board precedent holds that training is not determinative in establishing the actual job duties of a position. The City notes that LEEBA has not identified any Board precedent or case law that would support fragmentation based on the facts alleged.