One of the oldest goals of the labor movement has been to secure greater wages and benefits as a reward for long service with employers. In many collective bargaining agreements wages are enhanced based on years of service with the employer. The Westchester County Correction Officers Benevolent Association (“COBA”) has such a provision. The enhancement is called a “salary increment” which is a pay raise based on time of service. That provision, however, states that the employer, in this case the County of Westchester, may deny the increase so long as the denial is not unreasonable.

The County did deny an increment for a COBA represented Correction Officer. The County provided shifting reasons, however. Initially, the County stated that the denial was due to the officer’s poor attendance resulting in her placement on the County’s attendance review program. As it turns out, the officer had never been on attendance review. Later, the employer claimed that the increment was denied because the officer was absent for a training session. The absence was true but the officer made up the training session shortly afterward. The County had already punished the officer for the missed training session with a formal reprimand memorialized in a stipulated disciplinary agreement. That agreement stated that the matter of the missed training session was fully resolved but did not address what would happen to the increment.

COBA argued that the first reason offered was not true, the second reason offered was petty and insignificant and the settlement agreement’s resolution of all matters pertaining to the missed training session meant that the denial was unreasonable. The County argued that the missed training session was a reasonable basis for denial and that the failure of the union to address increments in the disciplinary stipulation meant the issue could not be raised later in a contract interpretation grievance.

Arbitrator Rosemary Townley rejected the County’s claims and ordered the County to pay the increment. Arbitrator Townley first noted that the “rule of reasonableness as applied” to the increment denial was that “the decision be one an average person would consider fair and just and not be arbitrary or capricious in nature.” The initial denial based on attendance review status was a “serious error of fact” as “the record shows that [the officer] had never been on such a review. Further, there was no dispute that she had been AWOL…, admitted to the same…, agreed to accept a Letter of Reprimand … and made up the day shortly thereafter.” As such, “to deny an increment based on the claim that [she] was on attendance review, when she was not is a clear error and works an unfairness, and in unreasonable.” Turning the stipulation, Arbitrator Townley rejected the County’s claims that the union should have secured increment specific language stating, “the language in the Stipulation is broad and vague and, in any event, cannot overcome the clear language” in the CBA.

As a result, the officer was granted her increment, valued at $1,400.00, retroactive to its original due date.

IDC&W partner Howard Wien served as counsel to COBA in this arbitration.

After a Public Employee Safety and Health (“PESH”) bureau finding that the New York City Transit Authority violated New York occupational safety and health laws by not having fire wardens at the Westchester Yard in the Bronx, the Authority assigned Fire Warden duties to Train Service Supervisors, Assistant Train Dispatchers, Train Dispatchers, and Yard Dispatchers represented by the Subway-Surface Supervisors Association (“SSSA”). The SSSA filed an improper practice charge at the New York Public Employment Relations Board (“PERB”) alleging that the assignment was not within the inherent duties of the effected employees and that the assignment significantly increased their workload. Both circumstances, under PERB precedent, requires collective bargaining before the assignment and constitutes an unfair labor practice under New York’s Taylor Law (which governs collective bargaining for New York’s government employees).

PERB agreed with SSSA and in a March 5, 2025 decision ordered the Authority to cease and desist assigning the effected employees Fire Warden work pending negotiations. The assignments broke down into two essential components: daily inspection duties and steps to be taken in the event of an evacuation. With respect to the daily inspection, the PERB Administrative Law Judge (“ALJ”) stated “The Authority’s unilateral imposition of the daily inspection duties … increased the workload of the affected Dispatchers whereby they are now required to accomplish significantly more work during their workday. Hence … I find that the Authority has violated the Act.” With respect to the evacuation tasks, the ALJ stated, “I find that the assigned duties of Fire Warden do not fall within the inherent duties of the four bargaining unit positions affected.” Consequently, the assignments constituted a unilateral change in terms and conditions of employment that required bargaining. Having failed to bargain, the Authority violated the Act. The ALJ ordered the Authority to rescind the order assigning Fire Warden duties to the effected titles and order the Authority to bargain.

IDCW Partner Howard Wien represented the SSSA in at PERB.

The New York City Transit Authority changed the assignment of Maintenance Supervisors at the Grand Avenue Central Maintenance Facility so that Maintenance Supervisors would have to supervise multiple groups of subordinate employees in the event a Maintenance Supervisor was absent. Historically, coverage for such absences would be made by assigning Maintenance Supervisors who had specifically selected during the annual pick of job assignments the job of providing absence relief. If such a Maintenance Supervisor was unavailable, Maintenance Supervisors from earlier and later tours of duty would split up the hours covered by the absence generating overtime for both. If coverage was still unavailable, a Maintenance Supervisor would be assigned in reverse seniority order. Starting April, 2024, however, the Authority began a process of requiring Maintenance Supervisors on the same tour as the absent Maintenance Supervisor to cover multiple groups of subordinates eliminating the overtime and eliminating selection by seniority.

The Maintenance Supervisors union, the Subway-Surface Supervisors Association, grieved this change as a violation of a contractually mandated past practice under the party’s collective bargaining agreement. In a December 23, 2024 award, arbitrator Howard Edelman agreed.

Arbitrator Edelman dismissed the Authority’s defense that no such past practice existed noting that the union’s witnesses, all of whom were Maintenance Supervisors, were more credible in their claims that the Authority’s Deputy Vice President who denied the existence of such a practice. The arbitrator ruled this way because the union demonstrated that the Deputy Vice President had no firsthand knowledge of the practices at the Central Maintenance Facility. The arbitrator also noted that the change coincided with Authority memoranda which announced a moratorium on unbudgeted overtime. The memoranda, the arbitrator stated, “lend substantial credence to the Union’s description of a changed post-April, 2024 world at Grand Avenue…”

The arbitrator then found that the existence of pick rights in the collective bargaining agreement meant that filling these positions by seniority was required and failing to do so violated the agreement. The arbitrator rejected the Authority’s reliance on the agreement’s “zipper” clause in light of contract language expressly permitting the arbitrator to consider past practices. The arbitrator also noted that prior arbitral decisions under this collective bargaining agreement stated, “[P]ractices which are fundamental to the rights of the parties become embedded in the labor contract even when not spelled out or addressed therein.” The arbitrator finally held that the existence of special circumstances where the proven past practice was deviated from did not serve as a defense to the union’s claim. The arbitrator retained jurisdiction to resolve any disputes as to whether special circumstances exist on any given occasion.

The arbitrator’s award is a significant reaffirmation of the union’s hard-won seniority and overtime rights. It is elemental to collective bargaining that changes in terms and conditions of employment must be won at the bargaining table and not through unilateral changes by an employer. Arbitrator Edelman’s decision upholds and strengthens this proposition for the effected members of our client, the Subway-Surface Supervisors Association.

IDC&W Partner Howard Wien served as counsel for the union in this arbitration.

Congratulations to President Mario Bucceri and to the Executive Board and members of the United Transit Leadership Organization for its ratification of a new collective bargaining agreement with several affiliates of the New York Metropolitan Transportation Authority by an incredible vote of 283-14, or 95.3%.

The agreement calls for three annual compounded raises totaling 8.25%, a $3,000 essential worker bonus, improvements to the grievance and arbitration procedures, improvements in time and leave policies, expansion of compensatory time opportunities, and paid maternity and paternity leave, among other benefits. The agreement also provides for inclusion of UTLO members at the Staten Island Railway who were recently added to the bargaining unit. SIR members now have a host of rights, including job protections and expanded employment opportunities, they never had previously. The UTLO also secured dramatic increases for SIR member minimum wage rates, known as compression floors.
The agreement covers approximately 1,000 MTA employees.

Howard Wien served as counsel to the UTLO for these negotiation

IDCWLaw has a wealth of experience in appellate advocacy, on behalf of its union clients. Partner Liam Castro’s extensive track record includes numerous successful arguments before New York’s Appellate Court, with two notable victories at the state’s highest court. This expertise proved invaluable in March 2024 when the Third Department sided with a coalition of unions in a crucial case brought against  the County of Rockland when it discontinued  pharmacy co-payment benefits for union members.

IDCWLaw, in conjunction with the coalition, pursued this matter vigorously, initially securing a favorable decision from the Public Employment Relations Board (PERB), which acknowledged the County’s actions violated New York’s Taylor Law, which governs labor-management relations in the public sector. Subsequently, both the Supreme Court and now the Third Department Appellate Division have upheld PERB’s decision and also found the County’s actions were illegal.

IDCWLaw is now focused on securing monetary damages for every affected union member. Given the significance of the case and the widespread impact of the County’s actions, it is anticipated that the damages awarded will be substantial.