Union Officers’ Knowledge Can Waive Union’s Right To Bargain

Written on 11/05/2022
Will Aitchison

Firefighters for the City of Syra­cuse, New York are represented by the Syracuse Firefighter’s Association. City firefighters undergo employment-relat­ed medical examinations with the Fire Physician for several reasons. These include annual physical examinations, which, for some firefighters, includes a portion on handling hazardous ma­terial, return to work/fitness for duty examinations, sick time certification, and tuberculosis testing. While most firefighters may choose between the Fire Physician and their physician to complete the annual physical examina­tion, members of the Hazmat team are required to go to the Fire Physician for annual physicals.

The Fire Physician requires patients to execute a “Patient Consent Form,” which outlines the patient’s rights under HIPAA. The HIPAA consent form allows the Fire Physician to communicate with the City “for the purpose of qualifying under employer or regulatory guidelines.”

In 2019, the Association began protesting the scope of the consent forms used by the Fire Physician, which had recently been revised. Eventually, the Association demanded to bargain over the use of the forms. When the City refused to bargain, the Association filed an unfair labor practice complaint with New York’s Public Employment Relations Board (PERB).

An administrative law judge for PERB found that the Association had waived its right to bargain over the scope of the forms. In particular, the ALJ held that “the Association knew, or reasonably should have known, about the Fire Physician’s use of the revised consent form well before 2019. Specifically, an Association vice presi­dent executed two such revised consent forms; first on April 5, 2017, for an on-duty ankle injury assessment, and then on December 11, 2017, when he saw the Fire Physician to get a referral for an orthopedic surgeon for orthotics.

“In addition, a former president of the Association executed a consent form on September 24, 2018. I do not find credible the former president’s testimony that the form he executed on September 24, 2018, as well as the prior 20 forms he executed, were solely executed for tuberculosis tests. I find that three instances of officers of the Association within their elected terms executing the revised consent forms renders the charge untimely.”

Syracuse Firefighters Association, 55 PERB ¶ 4551 (NY PERB ALJ 2022).

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