Deputy sheriffs assigned to the Albany County courthouses in New York were granted paid time off on state and federal holidays, without being required to use their accrued leave time, since the courthouse was closed on those days. When a deputy was off on a holiday, their time was entered into the County’s coding system as “guaranteed time,” ensuring they received their regular 40-hour workweek pay. The collective bargaining agreement between the parties from 1997 to 2000 contained language stating that employees who “actually” worked on a holiday would receive time and a half pay. This was understood by Albany County Deputy Sheriffs Police Benevolent Association, Local 3872 as distinguishing between deputies who worked on holidays versus those who were off when the courthouse was closed and still received pay. This language was later removed.
The CBA covering 2017 to 2021 converted holidays into premium workdays, adding the value of those days to the base salary of all unit employees. The CBA provided that employees must work their last scheduled workday prior to a premium workday, and their first workday after a premium workday, as well as any regularly scheduled premium workday, to receive pay for the premium day, unless they were absent for reasons approved by the employer. According to the Union, the language referencing “any regularly scheduled premium workday” was intended to exclude courthouse deputies, since they were never regularly scheduled to work on holidays.
On February 3, 2022, the County issued a memorandum stating that deputies assigned to headquarters, civil, and transportation units would no longer receive paid holidays off without using leave accruals. The memo cited a finding by the Commissioner of Human Resources that holidays were calculated into base pay and from then on would be considered premium days. A Human Resources Commissioner testified that the value of holidays was “rolled in” to the employees’ salaries and that deputies wishing to have a premium workday off would have to use accruals, like any other day.
The Union charged that the County violated its bargaining obligation by unilaterally discontinuing the practice of permitting deputy sheriffs assigned to the courthouse to have paid time off without using accrued leave when the courthouse was closed for federal and state holidays. An ALJ found for the Union, and the County appealed.
The New York Public Employment Relations Board affirmed the ALJ’s decision, finding that the County violated its bargaining obligation by discontinuing the paid holiday practice for courthouse deputies, a unilateral change in the term and condition of employment.
The Board found that an enforceable past practice existed, stating that “deputies assigned to the courthouse were not required to work on state or federal holidays but were paid for their time and were not required to charge their accruals.” Witnesses for both the Union and the County testified to this practice and, indeed, the County did not dispute the existence of the past practice.
“The County asserts that unit members could not have reasonably expected the benefit to continue based on the language in the 2017-2021 CBA and that it was entitled to revert to new contract terms that, it claimed, implicitly eliminated the past practice. We, like the ALJ, are not persuaded by these arguments.
“Duty satisfaction, of which contract reversion is a particular form, can be found where a party points to ‘contractual provisions that either expressly or implicitly demonstrate that the parties had reached accord on the specific subject’ at issue, and establish a basis for finding that the subject has been ‘negotiated to fruition.’” However, according to the Board, the new CBA language, referencing “any regularly scheduled premium work” was negotiated to exclude deputies assigned to the courthouse, as those deputies were never regularly scheduled to work on holidays. The Board noted there was “simply no CBA language or negotiating history that indicated that the parties ever intended, explicitly or implicitly, to change this well-established past practice involving the courthouse deputies.”
The Board stated that the CBA language “would not give notice to employees of anything to disturb their reasonable expectation that the practice would continue” and that the fact that “deputies in the courthouse assignments have had holidays off, with pay and without having to charge their accruals” was not “contrary to the language of the CBA.” Because the County failed to prove that the CBA language changed the practice, the Board concluded that “the County has not established its contract reversion defense.”
PERB also rejected the County’s attempt to raise a “managerial prerogative” defense because it was not raised in the County’s original answer, at the hearing, or in its post-hearing brief.
County of Albany and Albany County Sheriff, 57 PERB ¶ 3011 (2024).