On January 15, 2026, Westchester County in New York posted a job vacancy announcement for a Major Case Squad/Gang Intelligence Officer position in the County’s Special Investigations Unit (SIU). The posting stated that any “Correction Officer” with ten years of department service could apply by submitting a letter of interest. The Westchester County Correction Superior Officers Association (SOA) — whose bargaining unit consists of Correction Officer Sergeants, Captains, Specialists, and Assistant Wardens — objected in writing. The County did not respond. The SOA then filed an improper practice charge alleging that the County violated Section 209-a.1(d) of New York’s Public Employees’ Fair Employment Act.
The SOA’s theory was straightforward: all duties and assignments within the MCS/GI Unit and the SIU are currently carried out by supervisors who are members of the SOA. By opening the position to any eligible correction officer — including those that fall outside the SOA’s bargaining unit — the County unilaterally transferred exclusive unit work to non-unit personnel without bargaining. The County failed to negotiate over the creation of this assignment or position, or its impact, the SOA claimed.
New York PERB’s Rules of Procedure require an initial review of every charge. By a Notice dated January 27, 2026, the SOA was advised that its charge was deficient. The Notice explained that the charge appeared premature because it did not allege any actual unit work being performed by non-unit employees. Public employers are typically not obligated to negotiate over decisions to create new positions, job qualifications, or criteria for appointment. The Notice also noted that the charge failed to allege that the SOA had made any demand to negotiate impact. The SOA was given an opportunity to file an amended charge.
On February 11, 2026, the SOA filed an amended charge. But, the amended charge failed to cure the defects. While the SOA reiterated its assertion that all work in the SIU and MCS/GI Unit had historically been performed by its unit members, it did not allege that the posted position had actually been filled. More critically, the SOA did not identify any specific duty or duties being performed — or that had been performed — by any non-unit personnel. As such, the charge remained hypothetical.
PERB’s two-prong test for improper transfer of exclusive unit work comes from Niagara Frontier Transportation Authority, 18 PERB ¶ 3083 (1985). A charging party must allege and ultimately prove: (1) that the at-issue work was performed exclusively by its unit members for a sufficient period to become binding; and (2) that the duties actually assigned to non-unit personnel are substantially similar to that exclusive unit work. As PERB has held in unit placement cases, the Board “cannot rely only upon a hypothetical description of work performed, but rather must depend on the duties actually undertaken by an individual in a specific title.” Uniformed Firefighters Ass’n of Scarsdale, Local 1394, 49 PERB ¶ 3009, 3049 (2016) (affirming dismissal of unit placement petition based on job posting for a newly created position that had yet to be filled, despite clearly stated and enumerated job duties).
The same reasoning applied here: the SOA’s amended charge did not allege any job duties that had been assigned to or performed by personnel outside the bargaining unit. The charge therefore failed to allege any actual performance of unit work by non-unit personnel. Without that core factual allegation, the charge could not arguably establish a violation of Section 209-a.1(d).
PERB Director Greene, Jr. dismissed the charge in its entirety on March 25, 2026.
The Director’s decision did not reach the merits of whether the SIU position’s duties were historically exclusive to the SOA’s unit. That question would have to await an actual assignment of work to a non-unit employee. Until then, there was nothing for the County to bargain over.
Westchester Cnty. Corr. Superior Officers Ass’n v. County of Westchester, 2026 WL 1348837 (N.Y.P.E.R.B. Dir. Mar. 25, 2026).