Las Vegas POA

The Timing Of A Demand To Bargain

Written on 03/03/2021
Will Aitchison

On August 17, 2016, the Orchard Park Police Benevolent Association (PBA) filed an improper practice charge with New York’s Public Employment Relations Board (PERB) alleging that the Town of Orchard Park had committed several unfair labor practices. One of the claims related to the replacement of a paper sign-in system with Kronos, a biometric timekeeping system.

The Kronos system requires each employee to submit to a hand scan at the employee’s work location at the start and end of each work shift. Officers are allowed to “punch in” within seven minutes before the start of shift and after the end of shift, without penalty or consequence. Punching in or out eight minutes before or after shift triggers overtime payments to the officer, whether or not any overtime is authorized.

Initially, Kronos operated as a trial throughout 2013. In 2014, Kronos went “live,” with the rules surrounding Kronos incorporated into the Department’s general orders.

Beginning in 2015, PBA members, including the PBA’s president, received letters of counseling related to unauthorized overtime triggered by punches outside of the seven-minute window. The letters stated that “these early or late punches have led to the payment of one and one quarter hours of unauthorized overtime to be paid to you” and “please be attentive to your times and the time clock punches. Further violations of the time clock policies could lead to disciplinary actions.”

The PBA filed its improper practice charge in August 2016. A PERB Administrative Law Judge recently dismissed the charge.

The ALJ concluded, “PERB’s Rules of Procedure require that charges be filed within four months of when the charging party first knew, or reasonably should have known, of the alleged improper practice. The four-month time limitation runs from the date that the party had actual or constructive knowledge of the act or acts that form the basis for the charge. The employee organization, or its leadership, must have knowledge of the act that constitutes the charge in order for it to be held to have notice upon which timeliness determinations may be based.

“The PBA president testified that the PBA first was notified of the change ‘when the letters of counseling came out.’ The first letter of counseling was issued in January of 2015. If the counseling letter was the trigger for the PBA’s knowledge of the alleged change, this event occurred more than four months before the charge was filed.

“The PBA has also alleged that the Town has unilaterally changed a term and condition of employment concerning discipline on or about April 28, 2016, by announcing a policy that employees who violate its Time Keeping Policy will be subject to termination. This charge is timely. However, even giving the PBA the benefit of all reasonable inferences, the PBA has not produced facts, under the third prong of the unilateral change analysis, that subjecting employees who violate the Time Keeping Policy to termination is a change to the status quo affecting a term and condition of employment.

“It is undisputed that the discipline, in effect prior to the Town’s April 28, 2016 announcement, was outlined in the Time Keeping Policy in 2014. It states, in relevant part that ‘violations of this policy may result in discipline up to and including discharge.’ The Town’s statements in April and May of 2016 that employees who violate the Time Keeping Policy would be subject to termination, is consistent with both the policy in effect at the time the charge was filed, as well as the policy as stated in the 2014 Time Keeping Policy. Thus, the potential for discipline, including termination, for violations of the Time Keeping Policy was not new on April 28, 2016, and the announcement made no change to the discipline policy or to terms and conditions of employment.

“The absence of any occurrences of termination, by itself, does not establish that a no-termination past practice existed prior to the April 2016 announcement. During its case-in-chief, the PBA produced no evidence of violations of the Time Keeping Policy that failed to result in discipline or termination, in support of the past practice it alleges in its charge. Without such evidence, the absence of terminations simply demonstrates that no occasion had yet occurred when termination would have been warranted.”

Orchard Park Police Benevolent Association, Inc., 53 PERB ¶ 4533 (NY PERB ALJ 2020).

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