Albany County, New York negotiated a series of one-year contracts with the New York State Unified Court System to provide security services through its sheriff’s department for the county courthouse. In early September 2021, the County received a notice from the Office of Court Administration (OCA), stating that all nonjudicial personnel, including contractors, were required to be vaccinated for COVID-19. On September 27, 2021, County Director of Human Resources Jennifer Clement issued a memo to personnel who provided those services that effective October 11, 2021, they would “be temporarily reassigned to an assignment/location outside of the Justice Center/Courthouse, until such time that you show proof of receiving the first dose of the vaccine.”
AFSCME Local 3872 represents employees of the sheriff’s department. Three members of Local 3872, Paul Edwards, Greg Ethier, and Paul Whiting, were involuntarily transferred on September 28, 2021, from their bid position at the Justice Center and Courthouse for not showing proof of vaccination. Edwards resigned almost immediately; Ethier was reassigned to Albany International Airport and subsequently submitted his retirement notice; and Whiting was reassigned to Patrol.
Local 3872 brought a complaint before the New York Public Employment Relations Board, alleging that the County violated state labor law when it unilaterally implemented the new work rule regarding COVID vaccinations. The ALJ determined that the County had not violated the law, because the County’s interests in retaining its contract with OCA outweighed the impact of the policy on employees’ terms and conditions of employment.
On appeal, PERB affirmed the ruling of the ALJ: “The choice for the County here was between retaining its contract with OCA or not being able to perform the tasks called for under the contract and thus to risk losing the contract altogether. Although OCA does not reimburse the County for the cost of providing transportation deputies, these deputies were not exempt from the vaccination mandate. The County, through its director of Human Resources, was informed that transportation deputies, like other contract employees, would not be allowed on OCA property if they were not vaccinated. Under these circumstances, it was simply not within the power of the County to send unvaccinated deputies to work at the courthouse.
“We further find that the ALJ did not err in failing to find that the County had to negotiate the procedures associated with its vaccine mandate. Crucially, such an allegation was not alleged in the charge or a timely amendment thereto.”
In the Matter of Albany County Deputy Sheriff’s Police Benevolent Association, Local 3872, Council 82, AFSCME, AFL-CIO, Charging Party, and County of Albany and Albany County Sheriff, Respondent., 57 PERB ¶ 3001 (Pub. Emp. Rel. Bd. N.Y., 2024).