New York Public Employment Relations Board

In the Matter of

Police Benevolent Association of the

New York State Troopers, Inc.

Charging Party

and

State of New York

Division of State Police

Respondent

Case No. U-2416537 NYPER (LRP) ¶4533

2004 NYPER (LRP) Lexis 111

March 17, 2004 Decided

Administrative Law Judge’s Decision

David P. Quinn, Administrative Law Judge

On March 31, 2003, the Police Benevolent Association of the New York State Troopers, Inc. (PBA) filed an improper practice charge alleging that the State of New York (Division of State Police) (State) violated §§ 209-a.1(a), (b) and (c) of the Public Employees’ Fair Employment Act (Act) when, on December 3, 2002, Division Chief Counsel Glenn Valle issued a verbal order prohibiting unit employees from wearing their PBA membership pins. The State filed an answer denying any violation of the Act. However, it admitted that it prohibited employees from wearing any pin that connotes affiliation with the New York State Police, including PBA membership pins, while “assisting the defense in front of a jury.” n1

According to the State, the directive was issued in response to a complaint from the Rensselaer County District Attorney concerning a specific incident when certain PBA officers wore their membership pins while assisting the defense during a criminal trial conducted before a jury. A hearing was held on November 13, 2003. During opening remarks, the PBA withdrew the alleged violation of § 209-a.1(b). n2

Moreover, because the directive was verbal and in response to a specific incident when PBA officers wore their membership pins, there arose some confusion about the directive’s precise wording and scope. Although there is no dispute that the directive is limited to periods when the employees are actively assisting the defense during a criminal trial conducted before a jury, in the context in which the directive was issued, the PBA appears to have understood that the ban was limited to its pins.

However, the State’s attorney declared that it was intended to prohibit employees from wearing any pin, badge or labels “connoting or conveying affiliation with the New York State Police. “ n3 Because the PBA’s name includes the phrase “New York State Troopers,” the State apparently perceives all union insignia containing the PBA’s full name to connote such affiliation. n4

Thus, while there is no dispute that the directive covers the PBA’s membership pins, it appears to cover all insignia containing the PBA’s full name. However, whether limited to the PBA’s membership pin, or covering all insignia bearing the PBA’s full name, the theory of the alleged violation remains the same; that wearing union insignia is a protected activity, and the State’s directive interfered with and restrained employees’ right to wear it.

Simply put, the extent of the ban goes to the remedy, not the violation. Therefore, in treating with this matter, I accept the State’s representation that the ban prohibits employees from wearing any insignia that contains the PBA’s full name while assisting a criminal defendant in front of a jury. Indeed, to whatever extent the ban covers insignia other than union insignia, the charge is hereby dismissed, there being no basis to conclude that wearing such insignia is protected under the Act. The balance of the material facts is largely undisputed, and each party filed a brief. Facts

In the spring of 2001, a trooper was involved in an incident during which she shot a dog. Following an internal administrative investigation concerning the incident, the trooper resigned. Soon after, on the recommendation of the Rensselaer County District Attorney’s office she was arrested by a trooper and charged with violating section 353 of the New York State Agriculture and Markets Law (“Buster’s Law”), a misdemeanor. On September 30, and October 1, 2002, a criminal trial was conducted before a jury in Justice Court for the Town of Brunswick.

The jury returned a verdict of not guilty. During the trial, several PBA officials were present in the courtroom, including its President and Vice President, Daniel De Federicis and Don Postles. They were there on behalf of the PBA to support the former trooper, who, they believed, had resigned on condition that there would be no criminal prosecution. Each was off duty, dressed in civilian attire, and wearing a PBA membership lapel pin.

The PBA lapel pin is about the size of a nickel. n5 Around its upper half, arching over a grey Stetson hat with a blue hat band is the legend “ Police Benevolent Association.” Across the middle of the pin is a banner bearing the legend “New York State Troopers.” Under that is a small rectangle containing the initials “PBA.” All of the lettering is somewhat less than 1/16 of an inch high. At some point during the trial, the assistant district attorney opened a line of inquiry pertaining to the State’s internal administrative investigation, a process about which the defense attorney knew little or nothing. Postles spoke with the defense attorney about those procedures, and even suggested certain questions for cross examination.

During the second day of the trial, Postles sat at the defense table, still in civilian attire, on his own time, and wearing his PBA lapel pin in his left lapel. The jury was seated to his right, about thirty feet away. At no point during the trial did the judge or prosecuting attorney object to the presence of the PBA officials in the courtroom or Postles’ assistance to the defense, much less Postles’ presence at the defense table while wearing his membership pin. However, after the jury returned its not-guilty verdict, the Rensselaer County District Attorney, Kenneth R. Bruno, sent a letter to De Federicis, dated October 16, 2002, in which he complained of De Federicis’ and Postles’ actions during the trial.

In particular, Bruno complained of Postles’ participation and presence at the defense table while wearing his PBA lapel pin. The letter states: n6 Your attendance on the first day of the trial, September 30, 2002, coupled with the assistance you provided to the defense in court, sent mixed messages regarding your organization’s purpose. Furthermore, on the second day of trial, October 1, 2002, the Vice President of the New York State Troopers PBA, Donald Postles, not only attended the trial, but also assumed a position at the defense table next to the defendant. I have been told that Trooper Postles, during his time at the trial, appeared to actively participate in discussions with both the defendant and her attorney. . . . Such participation took place at the defense table, as well as during breaks in the trial.

While no announcement was made to the jury or the court as to the Vice President’s identity or purpose at the defense table, his open display on his suit lapel of a New York State Trooper’s PBA pin spoke volumes about his purpose. Bruno further opined: [T]he presence of your Vice President sitting conspicuously at the defense table next to [the defendant], while wearing a PBA pin, certainly conveyed the message that the New York State Troopers PBA was supporting [the defendant] in her defense. While we can never know for certain, what, if any, impact your vice president’s actions had upon the jury, there was created, I believe, a strong appearance of conflict within the New York State Police, which may have affected the prosecution of this case.

The letter articulated Bruno’s hope that the PBA’s executive board would “give appropriate consideration to engaging in such activities,” including “the repercussions that such actions may have with your membership,” the District Attorney’s office and “potential jurors.” Finally, Bruno stated that he believed that De Federicis’ and Postles’ actions “do not represent the views” of the PBA’s membership. Although the letter was copied to Postles and another trooper, a “blind copy” apparently found its way to representatives of the State, for it was in response that Valle issued his directive. While no employee was disciplined for wearing his pin at the trial, Valle testified that any employee who failed to comply would henceforth be disciplined. There is no evidence that any employee failed to comply or was disciplined. Discussion

Wearing union membership pins and other such insignia is an open declaration of one’s support, affiliation and solidarity with an employee organization. It would be cavil to suggest that wearing such items while off duty, in civilian attire, and on union business is not a protected right. n7 The State’s argument that assisting a criminal defendant in the presence of a jury “cannot reasonably be considered a union activity protected by section 202 [of the Act]” n8 is a red herring. The State did not ban the PBA’s assistance or support of a criminal defendant, but the wearing of union insignia while doing so. n9 Indeed, Valle testified that the employees would be in no jeopardy of violating his directive if they simply removed their union insignia. n10

Therefore, I find that the State’s directive violated § 209-a.1(a) of the Act, even assuming that it was constitutional, n11 unless, as the State argues here, wearing such pins and insignia loses its protection when they are worn while assisting the defense in front of a jury. In that regard, I reject the State’s attempt to deflect responsibility for its directive to Bruno. n12 Although Bruno’s concerns clearly influenced the State, it was not he who issued the directive. Emphasizing its law enforcement mission, the State argues that wearing PBA membership insignia loses its protection when worn while assisting the criminal defense in the presence of a jury.

According to the State, the PBA’s membership insignia sufficiently connotes affiliation with the New York State Police to place the State’s imprimatur on the actions of those who wear it. It speculates that such imprimatur could confuse the jury into believing that an agency responsible for law enforcement has misgivings about the prosecution, thereby creating the potential for a miscarriage of justice.

However, I find that the State, in its capacity as an executive branch employer, does not have a sufficient role in the administration of justice to regulate off duty protected activities inside a courtroom. It is the judiciary, including the trial judge and counsel, that bears the ultimate responsibility for ensuring that the jury is not unduly influenced by extraneous factors during a trial. n13 Where a trial judge or counsel perceives conduct that may inappropriately influence the jury, he or she may resort to the myriad procedures that are available to address those concerns.

Simply put, to the extent employees are permitted to assist the defense in front of a jury on their own time and in civilian attire, as the State concedes, n14 I find that the right to wear union insignia while doing so does not lose its protection under the Act. Therefore, I find that the State’s directive violates § 209-a.1(a). However, because there is no evidence that any employee was disciplined or suffered any other adverse employment consequence for having violated the directive, I agree with the State’s assertion that the record does not establish that it violated § 209-a.1(c). In effect, the State’s directive unlawfully declared that anyone who engages in the at-issue protected activity will be disciplined, but none was.

While the State’s directive restrained protected activity, there was no discriminatory act. To that extent, therefore, the charge is dismissed. Therefore, the State is hereby ordered to rescind its December 3, 2002 directive which prohibits employees from wearing PBA membership insignia while permissibly assisting the defense in a criminal trial conducted before a jury, and to sign and post the attached notice at all locations customarily used to post notices to unit employees represented by the Police Benevolent Association of the New York State Troopers, Inc.

Notes:

1 Administrative Law Judge’s Exhibit 3, State’s Answer, 13.

2 Apparently, the alleged “(b)” violation was withdrawn during the pre-hearing conference. However, because there is no written confirmation, the withdrawal was confirmed at the outset of the hearing.

3 Transcript (Tr.), p. 15.

4 Tr ., pp. 112, 129.

5 Charging Party’s Exhibit 1.

6 Respondent’s Exhibit 1.

7 See, e.g., Mead Corp., 314 NLRB 732, 733 (1994), enforced, 73 F.3d 74 (6th Cir. 1996) (Board reaffirmed the well-settled principle that the display of union buttons is protected by Section 7 of the National Labor Relations Act, unless the employer can show that special circumstances existed at its facility that outweigh the employees’ statutory rights); accord, Inland Counties Legal Servs., 317 NLRB 941 (1995). While not binding on PERB, I find the NLRB’s analysis is persuasive, and I adopt its conclusion.

8 State’s brief, p. 6.

9 In its brief, the State conceded that it “did not prohibit the officials from lending assistance to criminal defendants, even in cases where the State Police itself made the arrest, initiated the prosecution, and was assisting the District Attorney in gaining a conviction.” State’s brief, p. 8.

10 Tr., pp. 125-26, 132.

11 Compare, Scott v. Meyers, 191 F.3d 82 (2d Cir. 1999) (Court held that the New York City Transit Authority’s rule prohibiting employees from wearing union buttons and badges on their uniforms while on company time, except by permission of management, was, on balance, an unconstitutional restraint of free speech, because it extended to circumstances when the employees were not in contact with the public). The State’s directive here is even broader, covering times when the employees are off duty, in civilian attire, and on union business.

12 The State’s argument is designed to overcome the rebuttable presumption that it intended to interfere with protected rights. See, e.g., Greenburgh #11 Union Free Sch. Dist, 33 PERB § 3018 (2000). It argues that it “did not act on its own initiative,” but acted to assuage the “extreme dissatisfaction” Bruno articulated in his October 16 letter. (State’s brief at p. 8) However, an employer is not absolved of responsibility for its unlawful conduct simply because someone else thought it was a good idea.

13 See, e.g., Montgomery v. Muller, 176 AD2d 29 (3rd Dep’t), appeal denied, 80 NY2d 751 (1992) (Court upheld a trial judge’s ruling that directed prosecuting attorneys to remove their American flag lapel pins in order to ensure an untainted jury).

14 See, supra note 9.

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