        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1131
TP 13-00612
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF MONROE COUNTY AND MONROE
COUNTY SHERIFF’S OFFICE, PETITIONERS,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS
BOARD AND MONROE COUNTY DEPUTY SHERIFF’S
ASSOCIATION, INC., RESPONDENTS.


HARRIS BEACH, PLLC, PITTSFORD (KARLEE S. BOLANOS OF COUNSEL), FOR
PETITIONERS.

DAVID P. QUINN, ALBANY, FOR RESPONDENT NEW YORK STATE PUBLIC
EMPLOYMENT RELATIONS BOARD.

TREVETT CRISTO SALZER & ANDOLINA, P.C., ROCHESTER (DANIEL P. DEBOLT OF
COUNSEL), FOR RESPONDENT MONROE COUNTY DEPUTY SHERIFF’S ASSOCIATION,
INC.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Monroe County [Thomas A.
Stander, J.], entered April 3, 2013) to review a determination of
respondent New York State Public Employment Relations Board. The
determination, among other things, affirmed the decision of the
Administrative Law Judge finding that petitioners had violated Civil
Service Law § 209-a (1) (d).

     It is hereby ORDERED that the determination is unanimously
confirmed without costs, the petition is dismissed and the
counterclaim of respondent New York State Public Employment Relations
Board for enforcement of its order dated November 14, 2012 is granted.

     Memorandum: This case arises from an improper practice charge
filed by respondent Monroe County Deputy Sheriff’s Association, Inc.
(MCDSA) alleging that petitioner Monroe County Sheriff’s Office
assigned non-MCDSA members to perform certain security screening work
at the Monroe County Jail and the Monroe County Correctional Facility
that had previously been performed exclusively by MCDSA members.
Following a hearing, the Administrative Law Judge (ALJ) determined
that petitioners had violated Civil Service Law § 209-a (1) (d) by
assigning the duties of security screening at the jail and at the
correctional facility to non-MCDSA employees. Respondent New York
State Public Employment Relations Board (PERB) denied the exceptions
                                 -2-                           1131
                                                          TP 13-00612

filed by petitioners and affirmed the ALJ’s decision.   Petitioners
then commenced this CPLR article 78 proceeding.

     Contrary to petitioners’ contention, the determination of PERB
that petitioners violated Civil Service Law § 209-a (1) (d), i.e.,
that the work in question had been reassigned to non-MCDSA members,
that the reassigned tasks are substantially similar to those
previously performed by MCDSA members, and that the qualifications for
the job at issue did not change significantly (see Matter of State of
N.Y. Dept. of Correctional Servs. v Kinsella, 220 AD2d 19, 22), is
supported by substantial evidence (see generally 300 Gramatan Ave.
Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182). Contrary
to petitioners’ further contention, public policy considerations do
not require annulment of PERB’s determination (see Matter of City of
New York v Board of Collective Bargaining of the City of N.Y., 107
AD3d 612, 612-613; cf. Matter of New York City Tr. Auth. v New York
State Pub. Empl. Relations Bd., 19 NY3d 876, 878). Moreover, we
conclude that petitioners waived their contention that MCDSA did not
timely file the improper practice charge (see 4 NYCRR 204.1; Matter of
Watt v Town of Gaines, 140 AD2d 947, 947, lv denied in part and
dismissed in part 72 NY2d 1040; see also Mendez v Steen Trucking, 254
AD2d 715, 716; Matter of New York City Tr. Auth. v New York State Pub.
Empl. Relations Bd., 147 AD2d 574, 574, amended 156 AD2d 842, lv
dismissed 78 NY2d 1122). In any event, that contention is without
merit.




Entered:   November 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
