Archived Decision Summaries - January 1, 2003 through December 31, 2003

(Updated March 31, 2004)


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Decision Summaries Of The Board


Board Certifications

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, LOCAL 264 has been certified to represent all mounted reserve deputies employed by the County of Erie and Erie County Sheriff. All other employees are excluded. (C-5208, 12/12/03)

TOWN OF RAMAPO STAFF ASSOCIATION has been certified to represent all full-time and part-time employees of the Town of Ramapo in the titles of Maintenance Mechanic II (Director of Buildings and Grounds), Engineer III (Deputy Director of Public Works), Senior Program Assistant & Grant Writer, Deputy Town Clerk, Justice Court Clerk, Recreation Activities Manager, Building Inspector II (Director of Building, Planning & Zoning), Recreation Facilities Manager (Deputy Director, Recreation), Assessor B (Director of Assessment & Taxation), and Director of Youth Counseling. Excluded from the unit are the titles of Personnel Administrator, Director of Finance, Receiver of Taxes, Town Clerk, Director of Parks & Recreation, and Director of Public Works. (C-5181, 12/12/03)

TIOGA COUNTY CORRECTIONS ASSOCIATION has been certified to represent correction officers and cook employees of the County of Tioga, including all corrections sergeants. All ranks above corrections sergeant and all other employees are excluded. (C-5301, 9/26/03)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO has been certified to represent full-time emergency dispatchers and emergency dispatchers I employed by the County of Columbia and Sheriff. All other employees are excluded. (C-5298, 9/26/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent employees of the County of Warren in the following titles. GRADE 2: Cleaner, Clerk, Food Service Helper, Hospital Aide, Institutional Aide, Laborer, Laundry Worker, Supervisor of Volunteers, Van Driver, Meal Site Cook, Meal Site Manager, Aging Services Aide. GRADE 3: Leisure Time Activities Aide, Typist, Ward Clerk, WIC Clerks, Hatchery Aide, Physical Therapy Aide, WIC Program Aide. GRADE 4: Account Clerk, Cook, D.E. Machine Op, Index Clerk, Janitor, Senior Clerk, Senior Stenographer - Secretary, Senior Typist - Secretary, Stenographer - Secretary, Storeroom/Printshop Assistant, Tourism Specialist, WIC Assistant, Assistant Manager, Food Service Manager, Aging Services Assistant. GRADE 5: Account Clerk-Typist, Charge Aide, Motor Equipment Operator (Light), Motor Vehicle License/ Registration, Clerk, Records Clerk, Youth Services Specialist, Legal Clerk, Recreational Aide, Motor Vehicle Registration/Enforcement Clerk. GRADE 6: Bldg Maint Man, HEAP Examiner, Messenger, Senior Data Entry Operator, Social Welfare Examiner, Support Collector, Support Investigator, Working Supervisor, WIC Nutrition Aide, Personnel Clerk, Building Maintenance Worker, Motor Coach Promoter. GRADE 7: Auto Mechanic Helper, Licensed Practical Nurse, Motor Equipment Operator (Medium), Principal Stenographer, Senior Account Clerk, Probation Asst. GRADE 8: Administrative Assistant, Airport Maintenance Worker, Employment & Training Coordinator, Graphics Desktop Publisher, Heavy Equipment Operator, Nurse Technician, Senior Account Clerk/Typist. GRADE 9: Auto Mechanic, Employment & Training Counselor, Leisure Time Activities Director, Personnel Technician, Sign Maintenance Worker, Welder. GRADE 10: Draftsman, Engineering Technician, Highway Construction Supervisor, Principal Account Clerk, Senior Records Clerk, Sign Maintenance Supervisor, Social Work Assistant, Specialist, Services for the Aging, Records Management Technician. GRADE 11: Senior Social Welfare Examiner, Senior Support Collector, Social Services Investigator, Principal Account Clerk/Typist. GRADE 12: WIC Nutritionist, Resource Assistant, Prin Acct Clerk/Comp Sys Op, Senior Engineering Technician. GRADE 13: Building Maintenance Mechanic, Caseworker, Mechanical Storekeeper, Tax Map Technician, Data Coordinator, JTPA Coordinator. GRADE 14: CASA Coordinator, Health Educator, Senior Caseworker. GRADE 15: Accounting Supervisor, Principal Social Welfare Examiner, Rehabilitation Specialist, Staff Development Coordinator, Senior Employment & Training Counselor, Supervising Support Investigator, WIC Coordinator. GRADE 16: Case Supervisor B, Sr. Tax Map Technician, Sr. Blding Maint Mechanic, WIC Dietitian, WIC Nutrition Counselor. GRADE 17: Fire & Building Code Enforcement Officer. GRADE 18: RPN, Senior Planner. GRADE 19: Coordinator-Services for the Aging, Probation Officer, Public Health Nurse, RPN Supervisor. Excluded from the unit are all elected officials and department heads and employees in the following titles: Clerk of the Legislative Board, Secretary to Clerk of Legislative Board, Deputy Clerk of Legislative Board, County Court Judge, Confidential Law Assistant to County Court Judge, Family Court Judge, Surrogate Court Judge, Commissioner of Jurors, District Attorney, Assistant District Attorney, Administrator of Assigned Counsel, Coroner, County Auditor, County Treasurer, Deputy County Treasurer, County Budget Officer, Purchasing Agent, Director of Real Property Tax Service Agency, Deputy Director of Real Property Tax Service Agency, County Clerk, Deputy County Clerk, County Attorney, Assistant County Attorney, Personnel Officer, Commissioners of Board of Elections, Deputy Commissioners of Board of Elections, Building Superintendent, Systems Analyst Programmer, Court Officers and Court Attendants, Sheriff, Under Sheriff, Patrol Officers - Part-time, Special Patrol Officers, Patrol Officers - Seasonal, Correctional Officers - Part-time, Fire Coordinator, Deputy Fire Coordinator, Relief Dispatcher-Fire Control, Civil Defense Director, Supervising Nurse-Public Health Services, Medical Director-Physically Handicapped Children, Director-TB Clinic, Commissioner of Social Services, Deputy Commissioner of Social Service, Director-Mental Health, Director-Social Services, Director-Administrative Services, Social Services Attorney, Administrator-Westmount Infirmary, Director of Nursing , Physicians-Westmount Infirmary, Consulting Pharmacist-Westmount, Infirmary, Director-Veterans Service Agency, Sealer of Weights and Measures, Historian, Administrator-County Planning Board, Secretary-County Planning Board, All Employees, Regional Planning Board, Country Veterinarian, Superintendent of Public Works, Deputy Superintendent of Public Works, Senior Engineer-Department of Public Works, General Highway Foreman, Auto Mechanic Foreman, Deputy Department Heads, Executive Housekeeper, Assistant Directors, County Planning Board, County Planner, Planning Assistant, Planning Administrator, Associate Planner, Mental Health Programs Analyst, Mental Health Fiscal Officer, Manpower Account Manager, Dietetic Service Supervisor, Nondeputized Communication Officers, First Patrol Officers, Civil Law Enforcement Officers, Patrol Sergeants, Patrol Officers, Communications Operators, Corrections Officers, All Managerial and Confidential Employees. (C-5292, 9/26/03)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all regularly scheduled full-time and part-time cafeteria aides/monitors employed by the New Hyde Park-Garden City Park Union Free School District. All other employees are excluded. (C-5311, 10/31/03)

NORTH MERRICK FACULTY ASSOCIATION, NEW YORK STATE UNITED TEACHERS, AFT, AFL-CIO has been certified to represent all teacher aides employed by the North Merrick Union Free School District. All other employees are excluded. (C-5286, 10/31/03)

HUDSON VALLEY COMMUNITY COLLEGE NONINSTRUCTIONAL EMPLOYEES UNION has been certified to represent all full-time and part-time employees of the County of Rensselaer and Hudson Valley Community College in the titles of Administrative Assistant; Aide, AV; Aide, AV, Senior; Aide, Editorial; Artist, Graphic; Auto Services Program Assistant; Assistant, Health Office; Assistant, Laboratory; Assistant, Laboratory, Senior; Athletic/Recreation Program Assistant; Clerk; Clerk, Senior; Clerk, Principal; Clerk, Account; Clerk, Account, Senior; Clerk, Account, Senior, Payroll; Clerk, Account, Principal; Clerk, Mail and Supply; Clerk, Stores; Clerk, Stores, Senior; Clerk, Stores, Senior Inventory; Clerk, Stores, Principal; Clerk/Typist; Clerk/ Typist, Account; Clerk/Typist, Account, Senior; Clerk/ Typist, Senior; Coordinator Data Analysis Trainee; Coordinator Data Analysis I; Coordinator Data Analysis II; Coordinator Intramural Programs; Development/Alumni Aff. Program Assistant; Engineer, Stationary; Engineer, Stationary, Senior; Illustrator, Graphic; Information Processing Specialist, Trainee; Information Processing Specialist; Information Processing Specialist, Senior; Inventory Control Specialist; Keyboard Specialist; Messenger; Officer, Campus Safety; Officer, Campus Security; Operator, AV Equipment; Operator, Computer; Operator, Computer, Senior; Operator, Data Entry; Operator, Language Lab; Operator, Printing Machine; Operator, Telephone; Payroll Clerk; Photographer; Printer, Offset; Program Assistant, Educational Outreach; Programmer, Computer; Secretary I; Secretary II; Stenographer; Stenographer, Senior; Stenographer, Principal; Supervisor, Athletic/Recreation; Supervisor, Athletic Program Services; Supervisor, Graphics; Supervisor, TV Center; Technician, AV; Technician, AV, Senior; Technician, Electronics; Technician, Graphics; Technician, Engineering, Senior; Technician, TV Center; Technician, TV Center, Senior; Typist; Typist, Senior; Typist, Principal; Carpenter; Electrician; Electrician, Senior; Groundskeeper; Mason; Mechanic, Air/Heat/ Refrig.; Mechanic, Automobile; Mechanic, Automobile, Senior; Operator, Heavy Motor Equipment; Operator, Light Motor Equipment; Painter; Supervisor II, Building Maintenance; Supervisor II, Custodial; Supervisor II, Grounds; Technician, HVAC; Worker, Building Maintenance; Worker, Custodial; Worker, Custodial, EOC; Worker, Custodial, Special Assignment. Managerial and confidential employees are excluded. (C-5270, 6/30/03)

ALBANY COUNTY NURSING HOME PROFESSIONAL STAFF ASSOCIATION/ NYSUT/AFT/AFL-CIO has been certified to represent employees of the County of Albany (Department of Residential Health Care Facilities) in the titles of Pastoral Care Director, Pharmacy Director, Superintendent of Buildings and Grounds, Director Dietary Services, Director of Physical Therapy, Director of Occupational Therapy, Assistant Dietetic Serv. Supervisor, Asst. Dir. Of Nursing in Service Education, Assistant Pharmacy Director, Physician Asst/N.P., Supervising Nurse, Supervising Nurse P.T., Occupational Therapist, Recreational Therapist, Respiratory Therapist, Physical Therapist, Physical Therapist P.T., Pharmacist F.T., Dietician R.D., Social Worker, Medical Social Worker, Volunteer Program Coordinator, Dietary Service Supervisor, Pharmacy Aide, Social Worker Assistant, Data Entry Clerk, User Specialist Clerk, Accountant II, Account Clerk I, Account Clerk II, Payroll Supervisor, Clerk I, Ward Clerk, Clerk Steno I, Clerk Typist II, Clerk Typist I, Medical Records Clerk, Medical Records Technician, Secretary I, Switchboard Operator, Senior Store Clerk, Maintenance Inventory Clerk, Supervisor Central Supply Clerk, Head Cook, Supervising Food Service Helper, Food Service Training Instructor, Bldg. Grounds Maintenance Supervisor, Head Groundsman, Custodial Work Supervisor II, Custodial Work Supv., Custodial Work Supv. I, Laundry Supervisor, I.D.C. Nurse, RN Recruitment Nurse, Senior Stores Clerk, Security Guards, Buildings Ground Maintenance, Part-time Messenger, Director of Social Work Services, Activities Program Director, Rehabilitation R.N., Clinical Assistant, Chef, RUGS RN. All other titles are excluded. (C-5272, 8/18/03)

COMMUNICATION WORKERS OF AMERICA, LOCAL 1105 has been certified to represent all full-time and part-time firehouse attendants, including call-in firehouse attendants and maintenance personnel employed by the Islip Terrace Fire District. All others are excluded. (C-5278, 8/18/03)

TEAMSTER LOCAL 294 has been certified to represent employees of the City of Rensselaer in the titles of Account Clerk (Purchasing Department), Account Clerk (Planning Department), Deputy City Clerk, Deputy Commissioner (Water Department), Pump Operator, Meter Reader, Clerk (Police Department, Building Inspector, Senior Clerk (Department of Public Works), City Accountant, Clerk (Treasurer's and Water Departments), Senior Clerk (Police Department), Part-time Clerk (Planning Department), Clerk (Assessment Department), Rehab Specialist, Assistant Director of Planning. Excluded from the unit are employees in the titles of Commissioner of Assessments, Deputy Treasurer, Director of Youth, Mayor's Secretary, Senior Accountant, Account Clerk (Treasurer), Deputy Commissioner of Public Works, Deputy Police Chief, Computer Programmer, Secretary (Civil Service Department), and all other employees. (C-5282, 8/18/03)

TOWN OF ROSENDALE POLICE BENEVOLENT ASSOCIATION has been certified to represent all full-time and part-time employees of the Rosendale Police Department. Excluded from the unit are the titles of Chief of Police and Deputy Chief of Police. (C-5299, 8/18/03)

IUOE LOCAL 545, AFL-CIO has been certified to represent all full-time and regular part-time employees of the Town of Lysander filling the following positions (Civil Service titles): Deputy Town Clerk, Assessment Clerk, Data Collector, Receiver of Taxes, Deputy Receiver of Taxes, Clerk to Town Justice, Recreation Attendant, and Clerk I. Excluded from the unit were all other employees, including seasonal employees and the confidential secretary to the Town Supervisor. (C-5229, 4/4/03)

TEAMSTERS LOCAL 182 has been certified to represent Highway Department medium equipment operators employed by the Town of Ohio. Excluded from the unit were the titles of Highway Superintendent, Highway Department secretary/ bookkeeper and all other employees. (C-5265, 4/4/03)

IUOE LOCAL 463, 463A, B, C & D has been certified to represent employees of the Town of Cambria's Highway, Sewer and Water Departments in the following titles: Motor Equipment Operator, Motor Equipment Operator/Foreman, Mechanic, Water Maintenance Person and Sewer Maintenance Person. All others were excluded. (C-5275, 4/4/03)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent employees of the Town of Deerfield in the titles of regular full-time motor equipment operator and laborer. Excluded from the unit are the titles of town highway superintendent, all part-time, casual and seasonal employees and all other employees. (C-5233, 5/7/03)

GLEN COVE EDUCATIONAL SUPPORT ASSOCIATION has been certified to represent employees of the City School District of Glen Cove in the titles of full-time and part-time secretarial, clerical, teaching assistant and school aide personnel with the exception of the Confidential Secretary to the Superintendent of Schools, the Confidential Secretary to the Assistant to the Superintendent for Personnel, the Confidential Administrative Assistant to the Assistant to the Superintendent for Business, and the Payroll Supervisor. All other employees are excluded. (C-5262, 5/7/03)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 118 has been certified to represent employees of the Town of Skaneateles in the titles of full-time laborer II, motor equipment operator, park maintenance worker and public works maintenance worker. All other employees are excluded. (C-5267, 5/7/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC. has been certified to represent all full-time and part-time employees of the Town of Lockport in the titles of court clerk, clerk (water), clerk (building and assessing), data processing control clerk, deputy town clerk/deputy registrar of vital statistics, deputy building inspector and deputy assessor. Excluded from the unit are employees in the titles of assessor, building inspector and all others. (C-5247, 1/23/03)

DUTCHESS COUNTY BOCES SUPPORT STAFF ASSOCIATION has been certified to represent employees of the Dutchess County BOCES in the titles of Account Clerk, Account Clerk/Typist, AV Repair Tech, Bus Driver/ Maintenance Worker, Cook, Courier, Custodial Worker, Custodial Worker/Courier, Custodial Worker/Groundskeeper, Food Service Helper, Food Service Helper (Lead), Graphics Aide, Head Maintenance Mechanic, Instructional Systems Research Specialist (Tech I), Instructional Tech Support Assistant, Instructional Technology Acquisition Specialist, Instructional Technology Systems Specialist (Tech II), Intake Worker, Job Coach, Jr. Accountant, Maint.-Coop. Plumber, Maint.-Coop.-Electrician II, Maint.-Coop./ Carpenter, Maintenance Helper, Maintenance Worker, Microcomputer Technician, Personnel Assistant, Program Assistant, Receiving Clerk, Receptionist/Typist, Sr. Microcomputer Technician, Stenographer, Transportation Broker, Typist. Excluded from the unit are employees in job titles represented by the Dutchess County BOCES Faculty Association, the BOCES Administrative and Supervisory Association of Dutchess County, Dutchess County BOCES Adult Education Instructors' Association, the Instructional Systems Research Specialist (Supervisor) title currently held by Rudi Arcardi, EAP Counselor, titles deemed managerial and confidential under the Act, and all other employees. (C-5252, 1/23/03)

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Representation

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND HARRISON CENTRAL SCHOOL DISTRICT AND HARRISON ASSOCIATION OF TEACHERS. The Board affirmed the decision of the Administrative Law Judge (ALJ) granting the unit clarification petition filed by CSEA , finding that the title of teacher assistant was encompassed within the recognition clause of CSEA's collective bargaining agreement as a teaching assistant. The Board found that the two titles had been used interchangeably by the District and were included in CSEA's bargaining unit. As a result, the unit clarification/unit placement petition filed by the Association was dismissed. (CP-810 & CP-820, 12/12/03)

VILLAGE OF DRYDEN POLICE BENEVOLENT ASSOCIATION AND VILLAGE OF DRYDEN. The Board dismissed the petition filed by the PBA because the results of the election held in the petitioned-for unit indicated that the majority of eligible voters in the unit who cast ballots did not desire to be represented for the purposes of collective bargaining by the PBA. (C-5283, 12/12/03)

TRANSPORT WORKERS UNION OF GREATER NEW YORK, AFL-CIO, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY AND DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO. The Board affirmed the decision of the Administrative Law Judge (ALJ) that found that the titles of telecommunications specialist and computer specialist, employed by the Authority, were most appropriately placed in the unit represented by DC 37. Finding that the petitioned-for titles shared a greater community of interest with the employees in the unit represented by DC 37, the Board dismissed the petition filed by the TWU. (CP-768 & CP-769, 10/31/03)

TOWN OF RAMAPO STAFF ASSOCIATION AND TOWN OF RAMAPO. The Board affirmed the decision of the Administrative Law Judge (ALJ) determining that certain titles sought by the Association should be included in the bargaining unit agreed upon by the parties because, despite the Town's arguments to the contrary, the record did not support a finding that the at-issue titles of Building Inspector II, Assessor B, Director of Youth Counseling Services and Recreational Facilities Manager are managerial employees within the meaning of the Act. (C-5181, 8/18/03)

UNITED PUBLIC SERVICE EMPLOYEES ASSOCIATION AND HILLSIDE PUBLIC LIBRARY. The Board dismissed the petition of the Association to represent certain employees of the Library after the results of an election among the employees in the proposed unit indicated that a majority of the eligible employees in the unit did not desire to be represented by the Association. (C-5257, 8/18/03)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK. The Board reversed the decision of the Director of Public Employment Practices and Representation (Director) and found that the title of Forester 4 was not appropriately placed in the PS&T unit represented by PEF because the duties and responsibilities of the title evidenced that the incumbent was a managerial employee within the meaning of the Act. Focusing on the policy-making responsibilities of the Forester 4, the Board determined that he made decisions of State-wide scope that were regularly approved and implemented, thereby directly assisting the ultimate decision-makers in reaching policy decisions necessary to the conduct of the business of the governmental entity. (CP-533, 8/18/03)

DEPARTMENT ADMINISTRATORS ASSOCIATION OF SHENENDEHOWA AND SHENENDEHOWA CENTRAL SCHOOL DISTRICT. The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing a petition filed by the Department Administrators Association (Association) which sought to fragment 14 administrators employed by the District from a unit of teachers represented by the Shenendehowa Teachers Association and include them in a unit represented by the Association. The Board found that the showing of interest filed by the Association in support of its petition did not comply with 201.4(b) of the Rules of Procedure (Rules) which requires that the showing of interest form itself set forth the unit alleged by the petitioner to be most appropriate. The Association's later attempt to correct the deficiency could not cure the defect because a showing of interest which complies with all the requirements of the Rules must be filed simultaneously with the representation petition. (C-5260, 5/7/03)

PUBLIC EMPLOYEES FEDERATION, AFLCIO AND STATE OF NEW YORK. The Board remanded the matter to the Director of Public Employment Practices and Representation (Director) for further processing, finding that the case, although filed as a unit clarification/unit placement petition, was processed in the same way as a managerial/confidential application. As a result, the Board was unable to decide on the record before it whether the title of Forester 4 was a new or substantially altered position and whether it was in, or appropriately placed in, PEF's bargaining unit or excluded as a managerial employee. (CP-533, 2/28/03)

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Management / Confidential

TOWN OF ULSTER. The Board designated Ann Mitchell, Municipal Bookkeeper, as a confidential employee within the meaning of 201.7(a) of the Public Employees' Fair Employment Act (Act). The Board found that Mitchell worked in a confidential capacity to the Town Supervisor, who has a major role in contract and personnel administration and collective negotiations. In that capacity and because she is Municipal Bookkeeper, Mitchell has access to, and is responsible for, all the Town's financial records and reports. Because she can project the extent of the Town's financial resources and is privy to information about staffing levels and overtime, the Board designated the Municipal Bookkeeper as confidential. (E-2267, 1/23/03)

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Improper Practices

SYRACUSE POLICE BENEVOLENT ASSOCIATION AND CITY OF SYRACUSE. The Board reversed the decision of the ALJ and dismissed the PBA's charge which alleged that the City had violated 209-a.1(a) and (c) of the Act when it temporarily transferred a PBA unit member for having filed a grievance. The Board found that while the unit member had engaged in protected activities and the City was aware of those activities, the PBA had failed to prove that "but for" those activities the City would not have transferred the employee. The Board found that there was no evidence of anti-union animus and that the City's offered business reasons for the transfer were not pretextual. (U-22825, 12/12/03)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The Board affirmed the decision of the ALJ, dismissing the PBA's charge which alleged that the State violated 209-a.1(a) and (c) of the Act when it unilaterally changed a past practice by denying annual leave in one-day increments to a unit member. The Board found that there was no past practice of granting annual leave in one-day increments, giving preclusive effect to a decision of an arbitrator on a related grievance brought by the PBA, finding that there was no relevant established past practice. As there was no past practice, the State's denial of the unit member's leave request was neither a unilateral change in a past practice nor a unilateral implementation of a new policy. (U-22896, 12/12/03)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. The Board reversed the decision of the ALJ and dismissed the TWU's improper practice charge which alleged that the Authority had violated the Act when it denied a unit member's request for union representation during a medical examination and then took him out of service for refusing to participate in the examination without TWU representation. The Board determined that the medical examination could not be found to be an investigatory interview given that it would not be reasonable for the employee to conclude that disciplinary action could result and thereby entitle the employee to union representation under the decision of the US Supreme Court in NLRB v Weingarten, 420 US 251 (1974) and the Board's recent decision in New York City Transit Authority, 35 PERB ¶3029 (2002), confirmed, 196 Misc2d 526, 36 PERB ¶7009 (Sup. Ct. Kings County 2003, appeal pending). (U-23862, 12/12/03)

EDWARD JACKSON AND YONKERS FEDERATION OF TEACHERS. The Board did not reach the exceptions filed by Jackson, finding that that he had not served a copy of his exceptions on the Federation and, therefore, had not timely served the Board with proof of service as required by 213.2(a) of PERB's Rules of Procedure (Rules). That Jackson appeared pro se in the matter did not warrant the Board excusing adherence to its Rules. (U-24391, 12/12/03)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO AND INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 409. The Board affirmed the decision of the ALJ finding that Local 409 violated 209-a.2(b) of the Act when it refused to provide the District with certain salary information pertaining to bargaining unit employees and salary information of certain private employees in the possession of members of the bargaining unit. The Board found that the information requested by the District was not in its possession, was necessary and relevant for the District to respond to Local 409's negotiating proposals, and that Local 409 had not shown that it was unable to obtain the information. Local 409 was ordered to produce the requested information. (U-22671, 9/26/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, ERIE COUNTY LOCAL 185, ERIE COUNTY UNIT AND COUNTY OF ERIE AND ERIE COUNTY COMMUNITY COLLEGE. The Board affirmed in part, and reversed in part, the decision of the ALJ in five improper practice charges filed by CSEA alleging that the County and the College had violated the Act by unilaterally reassigning unit work to non-unit supervisory personnel and by engaging in discriminatory and retaliatory behavior directed at the employees who had filed grievances or were involved in improper practice charges that challenged the work assignments. The Board found that the ALJ erred in defining unit work and reversed his determination that the Act was not violated when supervision of blue collar employees at football games was performed by non-unit personnel, instead of CSEA unit employees. The Board affirmed the ALJ's decision that the Act was violated by the transfer of certain unit work to non-unit supervisory employees and that the County violated the Act when its then Director of Labor Relations made a retaliatory statement to CSEA representatives at the conclusion of a pre-hearing conference. Finally, the Board reversed the ALJ's finding that the Act was not violated when a CSEA unit employee, who had questioned his supervisor's decision about the assignment of an absent employee's work, received a schedule change notice. The Board found that the timing of the schedule change, following the complaint by less than a month, coupled with evidence of anti-union animus on the part of the supervisor and the pretextual nature of the business reason proffered by the supervisor as justification for the change, was sufficient to sustain the finding of a violation of 209-a.1(a) and (c) of the Act. (U-23119, U-23197, U-23279, U-23313 & U-23337, 9/26/03)

AMALGAMATED TRANSIT UNION, LOCAL 1342 AND NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC. The Board affirmed the decision of the ALJ and found that Metro violated 209-a.1(d) of the Act when it refused ATU's demand to bargain the impact of the installation of video cameras on buses and the use of videotape obtained from the cameras in disciplinary proceedings. The Board found that while Metro was free to install cameras on its buses, once the demand was made to negotiate the impact of Metro's decision, Metro had an obligation to negotiate the impact. The Board determined that Metro's refusal or failure to negotiate violated the duty to negotiate in good faith, but did not require Metro to undo its underlying decision to install the cameras, only to bargain over the impact of its decision. (U-23492, 9/26/03)

DIANA L. SIEGEL AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the ALJ, dismissing the improper practice charge which alleged that the UFT violated 209-a.2(c) of the Act when it did not respond to inquiries from Siegel and when it failed to file a grievance at Step 3 on her behalf. The Board found that UFT had responded to Siegel's inquiries in a prompt and thorough manner and that UFT was under no obligation to pursue Siegel's grievance at Step 3. As UFT's actions were neither arbitrary, discriminatory nor taken in bad faith, the charge was dismissed. (U-23812, 9/26/030)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the ALJ dismissing the TWU's charge alleging that the Authority had violated 209-a.1(a) and (c) of the Act when it retaliated against a unit employee who had requested union representation during a required physical examination. Finding that the Authority's actions with respect to the employee were motivated by legitimate business concerns, the Board noted that the fact that the Authority took its action based upon information it discovered while investigating the prior improper practice charge filed by TWU on the employee's behalf did not give rise to a violation of the Act, because a public employer is entitled to act upon information discovered during the investigation of a grievance or improper practice charge. (U-24228, 10/31/03)

CHARLES JANAY AND NEW YORK STATE COURT CLERKS ASSOCIATION AND STATE OF NEW YORK - UNIFIED COURT SYSTEM. The Board affirmed the decision of the ALJ, dismissing the improper practice charge filed by Janay alleging that the Association violated the Act when it failed to file an EEO complaint on his behalf, refused to allow him the opportunity to speak with the Association's attorney, failed to assist him in obtaining a work transfer and failed to respond to his inquiries about filing a grievance. The Board found that the Association had an established position of not representing unit employees in EEOC matters, had considered Janay's request for assistance with a grievance and made a reasoned decision not to pursue the grievance. Since the Association had promptly communicated its position to Janay and there was no evidence that its decision was arbitrary, discriminatory or made in bad faith, the Board found no violation. (U-23525, 10/31/03)

VED P. MALHOTRA AND LOCAL 375, DISTRICT COUNCIL 37, AMERICAN FEDERATON OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO. The Board affirmed the decision of the Director dismissing Malhotra's charge alleging that DC 37 had violated the Act by failing to pursue his complaints that he was entitled to an advanced job title and/or higher salary from his former employer, the New York City School Construction Authority. Finding that Malhotra was a retiree to whom DC 37 owed no duty of representation and that, with respect to events which occurred before Malhotra retired, the charge was untimely filed, the Board dismissed the charge. (U-24384, 10/31/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES) AND NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. The Board reversed the decision of the ALJ. The Board determined, on this interlocutory appeal, that the improper practice charge should be conditionally dismissed upon a finding that CSEA had earlier filed a similar charge that had been withdrawn after the CSEA local president and the DOCS facility superintendent had entered into a settlement agreement, with the approval of DOCS and the knowledge of the Governor's Office of Employee Relations. The Board found that the settlement agreement was an "agreement" within the meaning of 205.5 (d) of the Act and, because the Board was without jurisdiction to enforce an agreement, the matter should be deferred. (U-23311, 10/31/03)

MOHAMMAD SAIDIN AND UNITED FEDERATION OF TEACHERS, NYSUT, AFT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the ALJ dismissing the improper practice charge filed by Saidin, alleging that UFT violated 209-a.2(c) of the Act in the handling of a grievance on his behalf. The Board found that Saidin had failed to establish that UFT's actions on his behalf were arbitrary, discriminatory or taken in bad faith, as UFT had represented Saidin at his grievance arbitration and had succeeded in having some aspects of a critical observation report modified. (U-23697, 10/31/03)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK (OFFICE OF MENTAL HEALTH - SOUTH BEACH PSYCHIATRIC CENTER) AND UNITED UNIVERSITY PROFESSIONS. The Board did not reach the merits of the exceptions filed by the State to the decision of the ALJ which found that the State had violated 209-a.1(d) of the Act when it unilaterally entered into an agreement with the State University of New York (SUNY) for the provision of pharmacy management services by SUNY's Downstate Medical Center at the South Beach Psychiatric Center when those services had been exclusively provided by employees in the unit represented by PEF. The Board determined that the State had failed to serve a copy of its exceptions on UUP and, therefore, had failed to file proof of such service with the Board at the time its exceptions were filed, as required by 213.2 of PERB's Rules of Procedure. That the State later served a copy of its exceptions on UUP and UUP did not object to the late service had no bearing on the Board's determination that there had been a failure of timely service by the State. The exceptions were dismissed and the ALJ's decision ordering restoration of the atissue work to employees in the unit represented by PEF was affirmed. (U-22682, 10/31/03)

SARA-ANN P. FEARON AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board declined to reconsider its earlier decision (36 PERB 3009) upon Fearon's motion because the motion was not based upon newlydiscovered evidence and the allegations contained in the motion had been addressed both by the ALJ and the Board in the earlier decisions. (U-22693, 6/30/03)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1635 AND CITY OF ROCHESTER. The Board affirmed the decision of the ALJ and found that AFSCME had failed to establish that the City had engaged in threatening and hostile treatment of a unit member because of that individual's relationship with the president of AFSCME's local unit. The Board dismissed the charge because the record established that the employee in question had violated work rules and that the counseling and reprimands to which he was subjected were no harsher than those directed by his supervisor at other unit employees. (U-23289, 6/30/03)

LEWIS K. SHAYNE AND STATE OF NEW YORK (DEPARTMENT OF INSURANCE) The Board affirmed the decision of the Director dismissing Shayne's improper practice charge. The charge reiterated the allegations covered by two earlier charges filed by Shayne and alleged a continuation of the improper conduct alleged in the earlier charges. The Board rejected the theory of a "continuing violation" espoused by Shayne and found that there were only conclusory allegations set forth in the charge, with no specific facts pled to support the allegations. (U-23842, 6/30/03)

VILLAGE OF HAMBURG POLICE BENEVOLENT ASSOCIATION AND VILLAGE OF HAMBURG. The Board reversed the decision of the ALJ and remanded the case to the ALJ for further processing after the Board determined that the ALJ erred by reaching issues that were not properly before him and by failing to reach the issues raised by the PBA. The Board also determined that the portion of the Village's transitional work program for employees receiving GML 207-c benefits found by the ALJ to be mandatorily negotiable was nonmandatory because it merely reiterated the language of the statute. (U-22870, 8/18/03)

NEW YORK STATE SUPREME COURT OFFICERS ASSOCIATION, ILA, LOCAL 2013, AFL-CIO AND STATE OF NEW YORK (UNIFIED COURT SYSTEM) AND NEW YORK STATE COURT OFFICERS ASSOCIATION. The Board denied the interlocutory appeal of the Supreme Court Officers Association from a denial by the hearing ALJ of a request for subpoenas. The Board held that there was no extraordinary circumstance presented and no showing that severe prejudice would result if the interlocutory review were denied, especially since PERB's Rules of Procedures permit the Association's counsel to issue subpoenas himself. (U-23131, 8/18/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 100, AFSCME, AFL-CIO, ONTARIO COUNTY LOCAL 835, AVON CENTRAL SCHOOL DISTRICT EMPLOYEE UNIT AND AVON CENTRAL SCHOOL DISTRICT. The Board affirmed, as modified, the decision of the ALJ that the District violated the Act when it refused a demand by CSEA to negotiate after CSEA had been certified by PERB as the negotiating agent for a unit of District employees. The Board rejected the District's argument that the contract negotiated with the previous, now defunct, employee organization barred any negotiations until that contract expired. The Board modified the ALJ's decision and found that once the previous employee organization became defunct, its collective bargaining agreement with the District became null and void. There was, therefore, no impediment to negotiating a new collective bargaining agreement. The Board further found that the District has the obligation to maintain the status quo for the employees in the unit until a new collective bargaining agreement is negotiated with CSEA. (U-23450, 8/18/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (SUNY OSWEGO). The Board affirmed the decision of the Administrative Law Judge (ALJ) finding that the State had violated 209-a.1 (a) and (c) of the Public Employees' Fair Employment Act (Act) when it determined that Odilon Martinez had not passed his probationary period as a Grade 6 Laborer and would, thus, return to his Grade 5 Cleaner position, and by refusing to accept Martinez' withdrawal of his resignation tendered after his receipt of his probationary evaluation. The Board found that Martinez' supervisor had considered that he frequently sought the help of CSEA in his dealings with them and other supervisors when they reviewed his performance to determine whether he had passed his probationary period. Such consideration of an employee's exercise of rights protected by the Act was improper. The Board however, modified the ALJ's remedy which had restored Martinez to his Grade 6 position and ordered the State to re-evaluate him without consideration of his protected activities because Martinez had resigned his employment with the State on the day of his probationary review. There was no established practice of allowing employees to rescind resignations/ so the Board found that the State had not violated the Act when it refused to accept Martinez' withdrawal of his resignation. Finding that there had been no "constructive discharge" of Martinez because he had not been forced or threatened to resign and that the State had not made his working conditions so intolerable as to compel his resignation, the Board was constrained to order only that Martinez' final evaluation be rescinded, that the State cease and desist from interfering with Martinez' exercise of protected rights and that the State post a notice to that effect. (U-22017, 4/4/03)

COLD SPRING HARBOR TEACHERS' ASSOCIATION, LOCAL #2710, AFT, AFL-CIO AND COLD SPRING HARBOR CENTRAL SCHOOL DISTRICT. The Board reversed the decision of the ALJ and found that the District did not violate the Act when two teaching assistants, not in the unit represented by the Association, were found to have been teaching students while unsupervised. The Board determined that the two teaching assistants had been assigned to perform Academic Intervention Services (AIS) in the elementary schools with the understanding on the part of the District that the two would be supervised by teachers in the Association's unit. That there was some misunderstanding about the nature of the assignment, and the supervision to be provided did not, the Board found, compel a finding that the District specifically, or by acquiescence, assigned unit work to teaching assistants. (U-22619, 4/4/03)

DIANA L. SIEGEL AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the ALJ's decision dismissing Siegel's improper practice charge which alleged that the UFT had violated the Act when it denied her request to process her grievance to arbitration, and denied her appeal. The Board found that the UFT had considered the grievance, processed it through step 2 of the grievance procedure and had timely informed Siegel of its decision not to proceed to arbitration. As UFT had not acted in an arbitrary, discriminatory or bad faith manner in reaching its decision, the Act was not violated. (U-22972, 4/4/03)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The Board reversed the decision of the ALJ and found that the TWU had waived its right to file the improper practice charge alleging that the Authority had violated the Act by threatening to discharge an employee who had been subpoenaed by the TWU to testify at another employee's disciplinary hearing. The Board found that the TWU, in settling the employee's disciplinary grievance, released the Authority from any claims in connection with the grievance. (U-23093, 4/4/03)

DOUGLAS DIETZ AND UTICA TEACHERS ASSOCIATION AND UTICA CITY SCHOOL DISTRICT. The Board affirmed the decision of the ALJ, dismissing Dietz' charge that the Association violated the Act when it failed to consult with him over the terms of the settlement of a disciplinary charge and allowed counseling memoranda to be placed in his personnel file. Finding no evidence of arbitrary, discriminatory or bad faith conduct, the Board dismissed the charge. (U-23271, 4/4/03)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, LOCAL 264 AND COUNTY OF ERIE AND ERIE COUNTY SHERIFF. The Board affirmed the decision of the ALJ, finding that the County violated the Act when it refused a request of the Teamsters' counsel to provide certain necessary and relevant documentation regarding disciplinary charges against a unit employee. Reiterating prior decisions which held that a public employer has a duty to provide information, upon demand by an employee organization, which is necessary and relevant for the administration of grievances, the Board rejected the County's arguments that the matter was covered by the parties' collective bargaining agreement, that the County's need to maintain confidentiality outweighed the Teamsters' need for the information and that the public interest privilege and Civil Rights Law applied and mandated the rejection of the Teamsters' request. (U-23017, 5/7/03)

JOHN ZITO AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, NYSUT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the ALJ dismissing Zito's improper practice charge which alleged that the UFT had violated the Act by refusing to process his grievance to step 3. As the record evidenced that the UFT had investigated Zito's complaints and advised him of its position with respect to his grievance, the fact that Zito did not agree with UFT's interpretation of his contractual rights did not warrant a finding that UFT's conduct had been arbitrary, discriminatory or taken in bad faith. (U-23378, 5/7/03)

SARA-ANN P. FEARON AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board denied Fearon's interlocutory appeal of a ruling by the conference ALJ that precluded Fearon from making an oral motion to amend the charge, and from submitting a written motion to amend the charge, but allowed Fearon to make a motion to amend the charge before the hearing ALJ. The Board rejected Fearon's request for review, finding that there was no evidence of irreparable harm that could not be addressed at the conclusion of the proceedings. (U-23556, 5/7/03)

ROCHESTER POLICE LOCUST CLUB AND CITY OF ROCHESTER. The Board affirmed the decision of the Administrative Law Judge (ALJ), although on other grounds, dismissing the Club's improper practice charge, which alleged that the City had violated 209-a.1(d) of the Act when it unilaterally implemented an overtime detail and denied the Club's president to right to work the overtime detail. The Board affirmed the ALJ's determination that the assignment of overtime was a managerial prerogative, although the procedures for the assignment of such overtime must be negotiated. The City's actions were consistent with the established practice between the parties by which overtime was made available for similar events. The Board reversed the ALJ's determination that the Club could amend the charge to include an alleged violation of 209-a.1(a) of the Act. The amendment was conclusory in nature and pled no new facts that would support the alleged (a) violation. The Board, therefore, affirmed the ALJ's dismissal of the (a) violation, albeit on different grounds. (U-22824, 1/23/03)

SCHENECTADY-ALBANY-SCHOHARIE BOCES FACULTY ASSOCIATION, NYSUT, AFT, AFL-CIO AND CAPITAL REGION BOCES. The Board reversed the decision of the ALJ which found that BOCES had violated 209-a.1(d) of the Act when it assigned BOCES' teachers an English Language Arts program class. The Board found that the assignment of additional teaching duties to teachers during unassigned work time was not improper. The Board rejected the argument that because the preparation of the other courses in the program required time outside the regular workday, the assignment of the additional English course and its concomitant preparation time increased the workload of the teachers. The Board noted that the possibility that preparation time had been increased or duty free time reduced could be the subject of impact bargaining demands. (U-22898, 1/23/03)

MONROE COUNTY SHERIFF POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF MONROE AND MONROE COUNTY SHERIFF. The Board affirmed the decision of the ALJ, finding that the County and the Sheriff violated 209-a.1(c) of the Act when they ceased granting the PBA president a second day per week of union release time in retaliation for the exercise of protected rights. The Board found that the president's leave was denied after the PBA had voted "no confidence" in the Sheriff and after the president had advised the undersheriff that the PBA leadership had recommended to the PBA membership that they reject the fact finder's report and recommendation in the parties' current round of contract negotiations. Given that such requests had been routinely granted in the past, that the denial came without explanation and that the County and Sheriff had not offered legitimate business reasons for the denial, the Board found that the denial was improperly motivated and was, therefore, violative of the Act. (U-22122, 1/23/03)

RONALD PAGANINI AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND CITY OF LONG BEACH. The Board affirmed the decision of the ALJ which dismissed Paganini's charge that CSEA had violated 209-a.2(c) of the Act by failing to file a grievance against the City because it had denied his request for personal days. Finding that CSEA had investigated the merits of Paganini's claim and determined that it was without merit and had properly notified Paganini of its decision, the Board determined that CSEA had not been arbitrary, discriminatory or acting in bad faith in its handling of Paganini's request. (U-23182, 1/23/03)

DRYDEN EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION, NEA/NY, NEA AND DRYDEN CENTRAL SCHOOL DISTRICT. The Board reversed the ALJ's decision that the District had violated 209-a.1(d) of the Act when it subcontracted unit work to nonunit personnel. The Board found that the in-issue work was not exclusive bargaining unit work and that, therefore, the District's use of a retired, former unit employee to perform welding was not violative of the Act. (U-22944 & U-22953, 1/23/03)

WINSTON E. BRATHWAITE AND TRANSPORT WORKERS UNION, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the ALJ, dismissing Brathwaite's improper practice charge. The Board did not reach the merits of Brathwaite's exceptions because they had not been properly served on the other parties to the proceeding as required by 213.2(a) of PERB's Rules of Procedure (Rules) and, therefore, were not timely filed with the Board. (U-22968, 2/28/03)

SARA-ANN P. FEARON AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the ALJ, dismissing Fearon's improper practice charge which alleged that the UFT violated 209-a.2(c) of the Act when it did not represent her in a Step 1 grievance and failed to respond to her request for representation at Step 2 of a grievance. The Board held that Fearon's charge stemmed from events already raised in earlier charges, which the Board had dismissed, and from Fearon's own actions in the processing of the grievance. Finding that UFT had not acted in an arbitrary, discriminatory or bad faith manner with respect to Fearon, the Board dismissed the charge. (U-22693, 2/28/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND GREAT NECK WATER POLLUTION CONTROL DISTRICT. The Board affirmed the decision of the ALJ, finding that the District violated 209-a.1(d) of the Act when it unilaterally discontinued a past practice of allowing employees in the unit represented by CSEA to use the Personnel Facilities Building during breaks. Noting that the use of an employer's facilities by employees during their breaks is a term and condition of employment and finding that there was a long-standing practice of employee use of the District building, the Board decided that the District violated the Act when it unilaterally rescinded permission to use the building as a response to vandalism and thefts, rather than seeking to negotiate the matter with CSEA. (U-23370, 2/28/03)

INEZ ZEIGLER AND DISTRICT COUNCIL 37, AFSCME AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board denied the exceptions filed by Zeigler on procedural grounds because they had not been properly served on DC37 and the Board of Education as required by 213.2(a) of the Rules, even though no objection to failure of service was received from the parties not properly served. (U-23094, 2/28/03)

THOMAS ABRAHAM AND TRANSPORT WORKERS UNION, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the ALJ dismissing the charge filed by Abraham which alleged that NYCTA violated the Act when it terminated him and that the TWU violated the Act by failing to request an adjournment of the disciplinary hearing. The Board affirmed the dismissal of the charge, but on the ground that it was untimely. Finding that Abraham knew or should have known that the TWU had not adjourned the hearing more than four months before the improper practice charge was filed, the Board dismissed the charge as untimely filed. (U-22012, 2/28/03)

CITY OF POUGHKEEPSIE AND POUGHKEEPSIE PROFESSIONAL FIRE FIGHTERS' ASSOCIATION, LOCAL 596, IAFF, AFL-CIO-CLC. The Board reversed the decision of the ALJ which had found that several negotiations proposals submitted by the Association to interest arbitration were mandatory subjects of negotiations. The Board determined that the demands, all of which were related to appeals procedures in GML 207-a claims, were nonmandatory because they provided for a review of the underlying claim, rather than a review of the City's reasons for denying a claim or other actions with respect to GML 207-a claims. Reiterating the rationale in its earlier decision involving these parties, Poughkeepsie Professional Fire Fighters, 30 PERB 3072 (1997), the Board held that the demands sought to substitute the decision of an arbitrator for that of the City's designated agent, and were contrary to the City's statutory right to make the initial determination of eligibility for 207-a benefits. The demands were ordered to be withdrawn from interest arbitration. (U-23563, 2/28/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, CHENANGO COUNTY LOCAL 809, SHERBURNE-EARLVILLE CSD UNIT 6601 AND SHERBURNE-EARLVILLE CENTRAL SCHOOL DISTRICT. The Board reversed the decision of the ALJ and dismissed the improper practice charge filed by CSEA which alleged that the District had violated 209-a.1(d) of the Act when it unilaterally discontinued a practice of permitting unit employees to borrow District tools and equipment for personal use. The Board found that, while the alleged practice had been in place for some time, it was not unequivocal and unit-wide so that employees in the unit could not reasonably expect the practice to continue unchanged. The tools and equipment were loaned to only a few unit employees, based upon the subjective assessment of the Superintendent of Buildings and Grounds as to whether the employee was trustworthy and experienced in the use of the tool or piece of equipment. Also, the Board found that the Superintendent of Buildings and Grounds had no authority to loan the equipment and tools and that the Superintendent of Schools was unaware of the practice and had not acquiesced in the practice. The charge was, therefore, dismissed. (U-22985, 2/28/03)

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Declaratory Rulings

CITY OF HORNELL AND NEW YORK STATE CONFERENCE OF MAYORS AND MUNICIPAL OFFICIALS. The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing the petition of the City and the Conference seeking a ruling as to whether General Municipal Law 207-a and 207-c benefits determination and review procedures are mandatory subjects of negotiations. The Board found that there was no justiciable controversy presented by the petition and that it was not in the public interest to decide an issue that was not the subject of a dispute in negotiations. Further, the Board found that the Conference was not a public employee, employee organization or public employer within the Board's jurisdiction and that, therefore, the Conference did not have standing to file a declaratory ruling petition. (DR-111, 9/26/03)

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Strikes

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Local Procedures

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Other Matters

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Decision Summaries of the Office of Public Employment Practices and Representation


Representation

DISTRICT COUNCIL 37, AFSCME, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. DC 37's petition, seeking placement of the positions of Workers Compensation Benefits Examiner (WCBE) level I and II, Assistant WCBE, and Associate WCBE, into its existing unit pursuant to the criteria set forth in 207 of the Act was granted as to all positions except the WCBE Level II, which was vacant. A general community of interest was found to exist with unit employees based upon their white collar duties and similar terms and conditions of employment. The Authority's opposition to the petition on the grounds of a conflict of interest based upon the duties of the WCBE employees, who determine whether to controvert or accept Workers' Compensation and contractual disability claims, including claims of DC 37 unit members, was rejected as speculative. Nor were the Associate WCBEs excluded as supervisory, as sought by the Authority, since they worked side by side with the other WCBE titles and did not have significant supervisory authority. The Authority's claim that Ida Smith, an Associate WCBE, should be excluded from the unit because she is confidential within the meaning of 201.7(a) of the Act was rejected for failure to prove that she assists a manager described in 201.7(ii) of the Act or that she works in a confidential capacity to such a manager. (ALJ Blassman, CP-843, 11/24/03)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 808 AND METROPOLITAN TRANSPORTATION AUTHORITY. The ALJ issued a decision accreting the position of Summons Administrator to the petitioner's unit. The employer did not object to the placement of the position into the unit, and admitted that the title in question shares a community of interest with the petitioner's unit. Accordingly, the ALJ granted the placement petition. (ALJ Maier, CP-912, 12/30/03)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, LOCAL 264 AND COUNTY OF ERIE AND ERIE COUNTY SHERIFF. Mounted reserve deputies who work year round on a regularly scheduled basis were found to be public employees within the meaning of the Act. The Teamsters' petition seeking to represent them in a unit separate from the PBA or correctional officers unit was granted. (ALJ Doerr, C-5208, 9/9/03)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO, AND STATE OF NEW YORK. Upon consent, several administrative assistants and senior administrative assistants were designated confidential and several others were placed into the professional, scientific and technical services bargaining unit. (Director Klein, C-5242, CP-621 & CP-728, 9/23/03)

SOUTHAMPTON TOWN PUBLIC SAFETY BENEVOLENT ASSOCIATION AND TOWN OF SOUTHAMPTON AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFLCIO. The ALJ dismissed a petition seeking to fragment 18 public safety dispatchers from a long-standing Town-wide unit of approximately 280 employees. A similar petition had been filed and dismissed in 1988. Citing a stringent standard for fragmentation, the ALJ found that compelling need was not established nor was there evidence of "systematic and intentional" disregard of the dispatchers' interests. The petitioner's claims consisted of complaints regarding negotiations, including dispatcher participation in the negotiations process, the dispatchers' work schedule and other terms and conditions of employment, grievance handling, delays in processing union membership applications, and allegedly disparaging comments made by union officials with respect to the dispatchers. The evidence, however, established substantial participation by, and representation of, the dispatchers in negotiations and grievance matters and actions by the bargaining representative which commonly occur in broad-unit representation. Further, the delays in the processing of membership applications were not specific to the dispatchers or even the Town-wide unit, and the comments made by the union officials were neither damaging to the group nor of a nature and frequency as could lead to the conclusion that the dispatchers' interests were being disregarded. (ALJ Cacavas, C-5248, 10/21/03)

SYRACUSE TEACHERS ASSOCIATION AND SYRACUSE CITY SCHOOL DISTRICT AND SYRACUSE ASSOCIATION OF MANAGERS AND SUPERVISORS, SAANYS. The ALJ dismissed a petition seeking to add a new title to the petitioner's bargaining unit of food service workers, finding that although the title was new, the position was not. Absent any material change in the position's duties or terms and conditions of employment, the ALJ held that the position was encompassed within the scope of an existing administrator's bargaining unit, where it had been represented for over a decade. The position's removal from that unit is appropriate, if at all, upon application of PERB's fragmentation standards, which petitioner did not assert. Therefore, the possibility that the new title shared a greater community of interest with those in the petitioner's bargaining unit was immaterial. (ALJ Quinn, C-5191, 10/30/03)

CHURCHVILLE-CHILI EDUCATION ASSOCIATION AND CHURCHVILLE-CHILI CENTRAL SCHOOL DISTRICT AND CHURCHVILLE-CHILI PROFESSIONAL ASSOCIATION. The titles of physical therapist assistant and occupational therapist assistant were added to the negotiating unit represented by the Intervenor, Churchville-Chili Professional Association, based upon the facts set forth in the petition and the position of the parties that the titles were appropriately placed in that unit. (ALJ Fitzgerald, CP-892, 9/5/03)

NEW YORK CITY TRANSIT AUTHORITY AND LOCAL 375, DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO. The ALJ added the title transit railcar technology specialist to the unit represented by DC 37. The NYCTA consented to the placement of the title in that unit and the Transport Workers Union of Greater New York, AFL-CIO, Local 100, which had intervened in the proceeding, withdrew its motion to intervene and stated that it had no further interest in the matter. (ALJ Maier, CP-864, 9/22/03)

AFSCME COUNCIL #66, AFL-CIO, LOCAL 2343 AND TOWN OF CORTLANDT AND LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO. The ALJ held that a newly created title, Senior Recreation Leader, is properly placed in a bargaining unit of administrators and supervisors, rather than a unit of rank-and-file personnel represented by the petitioner. According to the ALJ, the duties and responsibilities of the newly created position are substantially similar to those of titles represented by the intervenor. Therefore, the ALJ dismissed the petition. (ALJ Quinn, CP-830, 6/5/03)

TRANSPORT WORKERS UNION OF GREATER NEW YORK, AFL-CIO, LOCAL 100, AND NEW YORK CITY TRANSIT AUTHORITY, AND DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO. Two unit placement/unit clarification petitions were consolidated for hearing and decision in which the TWU and the intervenor DC 37 sought to represent the titles of telecommunications specialist and computer specialist. The NYCTA took the position that the titles should be in separate units, or, alternatively, that they should be placed in the DC 37 unit. Based upon the traditional criteria for determining unit placement, the ALJ concluded that the titles shared a greater community of interest with the titles represented by the intervenor, DC 37. For example, the titles in issue and the DC 37 represented titles have a similar, if not the same, level of benefits, are under the same supervisory structure, and perform work more similar to the work of the DC 37 represented employees than the TWU employees. The ALJ rejected the proposition that the titles should be placed in separate units, and dismissed the unit clarification portion of the petitions since the recognition clauses were silent with regard to the titles in issue, and the titles admittedly were not represented by either union. (ALJ Maier, CP-768 & CP-769, 7/28/03)

NEW YORK STATE NURSES ASSOCIATION AND COUNTY OF DELAWARE. The ALJ dismissed a petition seeking to add certain per diem nurses employed by the County to its existing bargaining unit. Although the petition suggested that there were three such employees, the record revealed that there were nine. Because the number of employees sought to be added to the unit exceeded 30% of the unit, the ALJ dismissed the petition. See, Ogdensburg City School District, 31 PERB 3060 (1998). (ALJ Quinn, CP-847, 8/18/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND HARRISON CENTRAL SCHOOL DISTRICT AND HARRISON ASSOCIATION OF TEACHERS. Where the Civil Service Employees Association and the Harrison Association of Teachers filed competing petitions for the position of teaching assistant within the District, CSEA's unit clarification petition was granted pursuant to Monroe- Woodbury Central School District, 33 PERB 3007 (2000), as CSEA's unit definition included the title of teacher assistant. The record showed that the two titles were used interchangeably for the same position. (ALJ Comenzo, CP-810, 8/28/03)

HARRISON ASSOCIATION OF TEACHERS AND HARRISON CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. Where the Civil Service Employees Association and the Harrison Association of Teachers filed competing petitions for the position of teaching assistant within the District, CSEA's unit clarification petition was granted pursuant to Monroe- Woodbury Central School District, 33 PERB 3007 (2000), as CSEA's unit definition included the title of teacher assistant. The record showed that the two titles were used interchangeably for the same position. (ALJ Comenzo, CP-820, 8/28/03)

JONES BEACH LIFEGUARD CORPS AND STATE OF NEW YORK AND NYS CORRECTIONAL OFFICERS AND PBA, INC. The petition of the Jones Beach Lifeguard Corps to remove all lifeguard job titles from the Security Services Unit of the State of New York and to be certified as the bargaining agent for a unit of those titles was dismissed pursuant to 201.3(g) of the Rules, as the Security Services Unit had been the subject of a petition, filed by a different employee organization seeking to fragment different titles, processed to completion within the preceding 12-month period. (ALJ Comenzo, C-5240, 5/5/03)

NASSAU COUNTY DEPUTY SHERIFF'S BENEVOLENT ASSOCIATION AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC. LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. The ALJ dismissed a petition seeking to fragment a group of deputy sheriffs from a County wide unit. The ALJ found that the duties of the deputy sheriffs did not meet the standard under County of Erie and Sheriff of Erie County, 29 PERB 3031 (1996), since their job duties did not primarily or exclusively involve criminal law enforcement. The ALJ concluded that, while the deputy sheriffs made arrests and issued summonses for violations of the Vehicle and Traffic Law, these duties were incidental to their main function. The ALJ concluded that the primary portion of the job duties involved the service of summonses, orders and writs, and other non-criminal enforcement matters. (ALJ Maier, C-5210, 5/15/03)

TOWN OF RAMAPO STAFF ASSOCIATION AND TOWN OF RAMAPO. A petition filed by the Town of Ramapo Staff Association seeking certification as the bargaining agent for a unit of unrepresented employees was granted as to the titles sought, with the exception of the Director of Public Works who was found to meet the criteria for managerial designation due to his policy making role. (C-5181, ALJ Fitzgerald, 5/15/03)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK. Pursuant to remand, the Director explained the procedure whereby PEF objects to the State's initial determinations that newly created or reclassified titles are managerial. (Director Klein, CP-533, 4/21/03)

DEPARTMENT ADMINISTRATORS ASSOCIATION OF SHENENDEHOWA AND SHENENDEHOWA CENTRAL SCHOOL DISTRICT. The Director dismissed a representation petition, as amended, for failing to comply with Rule requirements relating to a showing of interest. (Director Klein, C-5260, 3/4/03)

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Management / Confidential

MAMARONECK UNION FREE SCHOOL DISTRICT. The ALJ designated a Personnel Assistant as confidential because she provides confidential assistance in collective negotiations to the employer's Assistant Superintendent for Administration. (ALJ Quinn, E-2312, 12/11/03)

PORT WASHINGTON POLICE DISTRICT AND PORT WASHINGTON POLICE BENEVOLENT ASSOCIATION, INC. The ALJ dismissed a management/confidential application in which the District sought to designate three police lieutenants as either managerial or confidential employees. The ALJ rejected the District's contention that the employees were managerial since they did not formulate policy on behalf of the District and they were not involved in collective negotiations, administration of agreements or personnel administration to such a degree as to warrant such a designation. The ALJ found that their contributions in theses regards were of a routine nature in that they served as resource personnel, and did not exercise independent judgment in such matters. The ALJ also found that the employees were not confidential in that they did not have access to information inappropriate for bargaining unit members and that they did not discuss sensitive confidential matters with a managerial employee. (ALJ Maier, E-2301, 12/30/03)

VILLAGE OF ROUSES POINT. The ALJ designated Deputy Clerk and Senior Typist as confidential pursuant to the parties' agreement, inasmuch as the factual averments in the application may have supported such a conclusion. (ALJ Quinn, E-2318, 9/8/03)

CROTON-HARMON UNION FREE SCHOOL DISTRICT. On consent of the union that represents the at-issue title, the ALJ designated Senior Stenographer as confidential. (ALJ Quinn, E-2323, 10/14/03)

NYACK UNION FREE SCHOOL DISTRICT. Upon consent, the Principal Clerk in the Office of the Assistant Superintendent for Business was designated as confidential pursuant to 201.7 of the Act. (Director Klein, E-2322, 10/15/03)

EAST ISLIP UNION FREE SCHOOL DISTRICT. Where account clerk-typist (payroll) had confidential relationship to managerial employee in the performance of his managerial responsibilities, confidential designation was warranted. (ALJ Cacavas, E-2313, 6/2/03)

CONNETQUOT CENTRAL SCHOOL DISTRICT OF ISLIP. The District's application to designate Debra Hoar, a senior stenographer serving as the secretary to the pupil personnel director, as confidential in accordance with the criteria set forth in 201.7(a) of the Act was granted. The Connetquot Clerical Association consented to the designation. (ALJ Blassman, E -2310, 6/12/03)

SACHEM CENTRAL SCHOOL DISTRICT. Where the secretary to the assistant superintendent for curriculum and instruction had confidential relationship to managerial employee in the performance of his managerial responsibilities, confidential designation was warranted. (ALJ Cacavas, E-2316, 6/25/03)

PEEKSKILL CITY SCHOOL DISTRICT. Upon consent, the District's senior office assistant (automated systems) for the director of human resources and administration and the senior office assistant (automated systems) to the assistant superintendent for business were designated as confidential pursuant to 201.7 of the Act. (ALJ Quinn, E-2308, 7/8/03)

QUESTAR III BOCES. Upon the consent of each unrepresented employee, twelve titles at the Questar III BOCES were designated as managerial and three as confidential pursuant to 201.7 of the Act. (ALJ Comenzo, E-2306, 7/15/03)

COUNTY OF SULLIVAN. Upon consent, the County's one step center manager was designated as managerial pursuant to 201.7 of the Act. (ALJ Comenzo, E-2307, 7/15/03)

ROTTERDAM-MOHONASEN CENTRAL SCHOOL DISTRICT. Upon consent, the District's director of pupil personnel services was designated as managerial pursuant to 201.7 of the Act. (ALJ Comenzo, E-2317, 7/16/03)

MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT. The District's application to designate Diane Hackett, Senior Clerk Typist reporting to the Assistant Superintendent for Personnel, and Chris Martin, Secretarial Assistant to the Superintendent of Schools, as confidential in accordance with the criteria set forth in 201.7(a) of the Act was granted with the consent of the Middle Country Secretarial Association. (ALJ Blassman, E-2304, 4/1/03)

HOOSICK FALLS CENTRAL SCHOOL DISTRICT. The District's application to designate Robert Miller, School Business Administrator, as managerial in accordance with the criteria set forth in 201.7(a) of the Act was granted. (Director Klein, E-2311, 4/11/03)

STATE OF NEW YORK. The State of New York's application to designate Bernadette Kiefer - Secretary 1, Diane Sisario - Secretary 2, Michelle Schuttig - Administrative Aide, Sherri Williams - Clerk 2, Rosalie Manetta - Secretary 1, Helen Roberts - Principal Acount Clerk, Cheryl Sykes - Principal Account Clerk, Susan George - Keyboard Specialist 1, Linda Sabatino - Keyboard Specialist 1, Carolyne Pelligrini - Keyboard Specialist 1, and Mary Augustinos - Keyboard Specialist 2, as confidential in accordance with the criteria set forth in 201.7(a) of the Act was granted with the consent of the Civil Service Employees' Association, Inc., Local 1000, AFSCME, AFL-CIIO. (Director Klein, E-2281, 4/11/03)

COUNTY OF ERIE AND ERIE COMMUNITY COLLEGE. The Employer's application to designate Karen LaSota, Dean of Regional Employment, and Debora Maccagnano, Dean of Employment and Training, as managerial or confidential in accordance with the criteria set forth in 201.7(a) of the Act was dismissed in its entirety. LaSota had been dismissed at the time of the decision and had not been replaced. Neither was there evidence that the position held by LaSota was going to be filled at any time in the future. Maccagnano was not involved in policy-making at the highest levels or involved in contract negotiations or administration. Maccagnano also did not work in a confidential relationship with anyone involved in contract negotiation or administration. (ALJ Doerr, E-2251, 4/21/03)

DORMITORY AUTHORITY OF THE STATE OF NEW YORK. The ALJ issued an interim decision designating certain employees as managerial or confidential on consent of the incumbents and, as appropriate, the consent of the union representing said employees. (ALJ Quinn, E-2283, 4/23/03)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND THREE VILLAGE CENTRAL SCHOOL DISTRICT. Where an administrative assistant has a confidential relationship to the Director of Personnel Services in her performance of managerial responsibilities, a confidential designation is warranted. (ALJ Cacavas, E-2294, 1/2/03)

OWEGO APALACHIN CENTRAL SCHOOL DISTRICT. Upon consent, the District's Middle School Principal was designated as managerial pursuant to 201.7 of the Act. (Director Klein, E-2296, 2/3/03)

STATE OF NEW YORK. Upon consent, a Senior Staff Associate (in-house title, Director of Transportation and Parking Services) was designated as managerial pursuant to 201.7 of the Act. (ALJ Quinn, E-2282, 2/3/03)

NORTHEASTERN CLINTON CENTRAL SCHOOL DISTRICT. Upon consent, the District's School Business Administrator was designated as managerial pursuant to 201.7 of the Act. (ALJ Comenzo, E-2300, 2/5/03)

MANHASSET PUBLIC LIBRARY. Where an administrative assistant had a confidential relationship to a managerial employee in his performance of managerial responsibilities, a confidential designation was warranted. (ALJ Cacavas, E-2299, 2/11/03)

HALF HOLLOW CENTRAL SCHOOL DISTRICT. Where a secretary had a confidential relationship to a managerial employee in his performance of managerial responsibilities, a confidential designation was warranted. (ALJ Cacavas, E-2298, 2/20/03)

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Improper Practices

MARTINEZ HASLAM AND STATE OF NEW YORK (OFFICE OF MENTAL HEALTH). The Director dismissed a charge alleging a violation of 209-a.1(a) of the Act in the withholding of three pay checks subsequent to Haslam's resignation, finding it to be both procedurally deficient and lacking in substantive facts. (Director Klein, U-24565, 11/4/03)

NASSAU COUNTY SHERIFF OFFICERS ASSOCIATION AND COUNTY OF NASSAU. A charge alleging a violation of 209-a.1(d) of the Act by the employer for failing to honor an agreement concerning a salary upgrade for correction corporals, was deferred to the parties' grievance procedure under Herkimer County BOCES. The charge also alleged a failure to bargain impact upon demand. The Association withdrew the impact allegation and the ALJ found that the collective bargaining agreement provided an arguable source of right. As a result, the charge was deferred. (ALJ Maier, U-23722, 11/6/03)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK. The ALJ conditionally dismissed six separate improper practice charges and deferred the merits of the disputes to the parties' expired contractual grievance procedure, which provides binding arbitration. Each charge alleged that the employer refused to continue certain terms of the parties' expired agreement until a successor agreement is negotiated. (ALJ Quinn, U-24196, U-24300, U-24380, U-24413, U-24414 & U-24418, 11/7/03)

DEBORAH ANN JACOBS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS. The Director dismissed a charge alleging, as amended, a breach of the duty of fair representation, as pleading conclusions and opinions lacking in facts to satisfy the pleading requirements of 204.1(b) of the Rules, as well as the substantive standard articulated in case law. (Director Klein, U-24480, 11/17/03)

JOHN J. CULKIN AND STATE OF NEW YORK (STATE INSURANCE FUND). A charge alleging violations of 209-a.1(a) and (d) of the Act based on denial of Freedom of Information Law requests made in 2000 and 2003 (after the charging party's retirement from public service in 1999) was dismissed by the Director for lack of standing as well as lack of timeliness. (Director Klein, U-24571, 11/19/03)

ERIC G. BROCKINGTON AND TRANSPORT WORKER'S UNION, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. Where a terminated employee testified that he had requested that the union present specific evidence and testimony at his disciplinary arbitration, and the union did nothing other than show up at the proceedings and obtain one adjournment, a breach of the duty of fair representation was found. At the PERB hearing before the ALJ, the union presented no proof, but rather rested its case after the charging party's testimony. In crossexamination of the charging party and post-hearing argument, the union attempted to show that the evidence and witnesses which the charging party had requested would not have defended him against the charges brought by his employer for leaving his work post unattended and not signing out at the end of his shift. The ALJ, however, found that the union's failure to prove that it made reasoned decisions with respect to the arbitration at the time it was preparing for the hearing and at the hearing led to the conclusion that a violation had occurred. Hence, the union acted arbitrarily and/or in bad faith when it, without explanation, failed and/or refused to secure requested witnesses and evidence for a disciplinary arbitration. The ALJ further found that the fact that the arbitration award had been confirmed by a court did not preclude an order that the union re-evaluate the proof requested by the member and seek, with the employer, to re-open the arbitration if it determined in good faith that the evidence and testimony should be presented. (ALJ Cacavas, U-23951, 11/24/03)

MONTGOMERY COUNTY DEPUTY SHERIFF'S ASSOCIATION (CORRECTIONS OFFICERS) AND COUNTY OF MONTGOMERY AND MONTGOMERY COUNTY SHERIFF. The ALJ issued a merits deferral decision where the charging party alleged a failure to continue a term of the parties' expired agreement, and the grievance procedure provides binding arbitration. (ALJ Quinn, U-24132, 11/24/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, HUDSON VALLEY DDSO LOCAL 412 and STATE OF NEW YORK (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES - HUDSON VALLEY DEVELOPMENTAL DISABILITIES SERVICES OFFICE). An improper practice charge, alleging that the State violated the Act by the unilateral implementation of a new gasoline credit card system which utilizes a portion of the unit employees' individual New York State driver's license number as the employee's personal identification number (PIN), was dismissed. The change in procedure from requiring an employee to enter a PIN rather than signing a credit card charge slip was not mandatorily negotiable, as it merely altered the manner of recording from a written form to a mechanical one. Further, the State's selection of a portion of each employee's NYS driver's license number as an individual PIN did not implicate a privacy interest which outweighed the State's interest in implementing the new system. (ALJ Fitzgerald, U-23708, 11/28/03)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, COUNCIL 82, AFSCME, AFL-CIO AND STATE OF NEW YORK. Where the charging party alleged that the employer failed to continue terms of expired agreements applicable to a newly created unit of employees, the ALJ issued a merits deferral decision on the ground that the underlying dispute was subject to the parties' expired contractual grievance procedure. (ALJ Quinn, U-24402, 11/28/03)

SUFFOLK DETECTIVES ASSOCIATION, INC. AND COUNTY OF SUFFOLK AND SUFFOLK COUNTY POLICE BENEVOLENT ASSOCIATION, INC. The ALJ dismissed a subcontracting claim where the evidence showed that investigation relating to fire or explosion was not the exclusive work of the police department's arson squad. The threshold issues in a subcontracting claim are whether the work had been performed exclusively by unit members and whether the tasks which allegedly have been reassigned are substantially similar to those previously performed by unit members. (ALJ Cacavas, U-23331, 12/2/03)

PROFESSIONAL STAFF CONGRESS - CITY UNIVERSITY OF NEW YORK AND THE CITY UNIVERSITY OF NEW YORK. The charge alleged that the City University of New York violated 209-a.1(d) and (e) of the Act by failing to comply with the terms of the parties' expired collective bargaining agreement (CBA) regarding the selection of department chairpersons. Having confirmed that a grievance was pending on the same issue, and that the grievance procedure in the CBA ended in binding arbitration, the ALJ conditionally dismissed the charge subject to a motion to reopen on the grounds set forth in New York City Transit Authority (Bordansky), 4 PERB 3031 (1971). (ALJ Maier, U-24342, 12/8/03)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The charge was deferred to the parties' contractual grievance procedure as the Association has filed contractual grievances on the same facts as pled in the charge. (ALJ Comenzo, U-24304, 12/8/03)

ELISA MARIA GRANT-ROSS AND TRANSPORT WORKERS UNION, LOCAL 100. The Director dismissed the charge, together with a procedurally irregular amendment, alleging violations of 209-a.2(a), (b) and (c) of the Act for lack of standing as well as failure to plead facts sufficient to arguably establish a breach of the Act. (Director Klein, U-24616, 12/9/03)

CHENANGO FORKS TEACHERS ASSOCIATION, NYSUT/AFT/AFL-CIO, LOCAL 2651 AND CHENANGO FORKS CENTRAL SCHOOL DISTRICT. The ALJ issued a jurisdictional deferral because the dispute at issue in the improper practice charge was the subject of a contract grievance. (ALJ Quinn, U-24520, 12/12/03)

SUPERIOR OFFICERS ASSOCIATION OF THE POLICE DEPARTMENT OF THE COUNTY OF NASSAU, INC. AND COUNTY OF NASSAU. The County was found to have violated the Act when it unilaterally changed the past practice of assigning County vehicles to supervisors of a unit within the Nassau County Police Department on a twenty-four hour, seven-day a week basis. The ALJ rejected the County's argument that Sherburne-Earlville Central School District (hereafter Sherburne), 36 PERB 3011 (2003), required dismissal of the case. Sherburne was held to be factually distinguishable, since the practice in that case had been equivocal, at best, subject to the whim of one supervisor who was a mere first line supervisor. Also, in Sherburne, no one knew of the practice, except the employees in the one department where it was permitted. In the case decided, the record showed that the practice was widely known to exist throughout the Department, that high level supervisors knew of and condoned the practice, and that the practice existed independent of the discretion of any particular supervisor. The ALJ also rejected the County's argument that, pursuant to Sherburne, a practice cannot be established absent proof that it has been authorized by the employer's chief executive officer or its legislative branch. The ALJ noted that such an extreme interpretation of Sherburne was in conflict with, and would radically change, the bargaining rights established by the legislature under the Act, since it would effectively nullify the Act's requirement that the status quo be maintained pending negotiations of a change. The County's waiver defense was dismissed as prima facie deficient for failure to plead facts upon which the defense was based. (ALJ Blassman, U-23900, 12/30/03)

EDWARD JACKSON AND YONKERS FEDERATION OF TEACHERS. The Director dismissed a charge relating to breach of a duty of fair representation as being both untimely and lacking in facts that would arguably form a basis upon which a violation of the Act can be found. (Director Klein, U-24391, 9/3/03)

CARMEN SUSANA CARO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND THE UNITED FEDERATION OF TEACHERS. For lack of facts sufficient to legally support violations of 209-a.1(a) and 209-a.2(c) of the Act, as well as timeliness, the Director dismissed a charge relating to the District's failure to comply with a grievance decision and the UFT's failure to assist in obtaining that compliance. (Director Klein, U-24440, 9/3/03)

UNITED STEELWORKERS OF AMERICA, AFLCIO- CLC AND TOWN OF GEDDES. The ALJ issued a merits deferral decision concerning an employer's alleged failure to continue terms of an expired agreement, where the parties' expired contract provided grievance arbitration. (ALJ Quinn, U-24235, 9/8/03)

LOCAL 100, TRANSPORT WORKERS UNION OF AMERICA AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ held that the New York City Transit Authority (NYCTA) violated 209-a.1(a) of the Act by refusing to permit a union representative to accompany an employee to a medical reexamination to determine his use of alcohol in light of his past history of alcohol and drug abuse. The employee was sent to be reexamined since he had previously admitted during a medical examination to use of alcohol on occasion. The ALJ concluded that the employee had a reasonable belief that he could be subject to discipline were he to be found in violation of the NYCTA's drug and alcohol policy. Based upon the Board's decision in New York City Transit Authority, 35 PERB 3029 (2002); confirmed 36 PERB 7009 (Sup. Ct. Kings County 2003), in which the Board held that unit members have a right to representation during an investigatory interview which may lead to discipline, the ALJ concluded that the same right to representation exists in this circumstance, and held that the NYCTA violated the Act. (ALJ Maier, U-23682, 9/10/03)

EAST RAMAPO TEACHERS ASSOCIATION (NEA-NY/ NEA) AND EAST RAMAPO CENTRAL SCHOOL DISTRICT. The ALJ issued a merits deferral decision concerning an employer's alleged failure to continue terms of an expired agreement, where the parties' expired contract provided grievance arbitration. (ALJ Quinn, U-24133, 9/10/03)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The ALJ held that an employer was not required to provide an audio tape to a union in order to enable the union to investigate and prosecute a grievance. The grievance alleged that an inmate was improperly shown a photograph during a hearing that revealed certain personal information about a correction officer. The ALJ held that there was no basis to conclude that the audio tape would show whether the photograph bore that information or, as the employer argued, whether the information had been redacted. Noting that the photograph would be the better evidence concerning the grievance, and that the specific request for the audio tape limited the employer's ability to provide a redacted transcript of the tape concerning that portion when the photograph was shown to the inmate, the ALJ held that the record did not establish that the audio tape itself was relevant or necessary for the union to administer its contract. (ALJ Quinn, U-23919, 9/10/03)

BUFFALO PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 282 AND CITY OF BUFFALO. The ALJ conditionally dismissed an improper practice charge pending a determination regarding the dispute in accordance with the parties' contractual grievance procedure. (ALJ Kaufman, U-24387, 9/11/03)

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL NO. 17 AND COUNTY OF SULLIVAN. The ALJ issued a jurisdictional deferral because the charging party had filed a grievance regarding the merits of the underlying dispute pursuant to the terms of the parties' existing collective bargaining agreement. (ALJ Quinn, U-24335, 9/23/03)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The ALJ found that the State violated the Act when it directed a unit employee not to disclose to any "Division member" the substance of an interrogation in a disciplinary investigation in which the employee had been targeted. Because the order was broad enough to prohibit discussions with the employee's union officers, the ALJ held that it interfered with his protected right to communicate with his union. (ALJ Quinn, U-23714, 9/23/03)

SUFFOLK COUNTY CORRECTION OFFICERS ASSOCIATION AND COUNTY OF SUFFOLK AND SUFFOLK COUNTY SHERIFF. The Association alleged that the County initiated a disciplinary investigation and served disciplinary charges upon Vito Dagnello, then the Association's first vice-president, in retaliation for his protected activity. The charge was sustained in part. Dagnello had distributed notices for posting on County property that solicited unit member participation in an Association-sponsored political drive that included distribution of literature and a telephone bank in support of a candidate for County Sheriff. The County initiated a disciplinary investigation as to whether the postings violated the law and a Sheriff's order. The ALJ held that, although Dagnello issued the notices in his capacity as Association officer, the distribution of the notices constituted the type of partisan political activity that is not protected under the Act. Therefore, that portion of the charge was dismissed. However, the ALJ found that the County made the determination to issue disciplinary charges and serve them upon Dagnello in retaliation for a statement that he made to the press criticizing the Sheriff. The statement was found to be protected because it was issued on behalf of the Association and pertained to the manner by which promotions were allegedly granted, a term and condition of employment. The mere use of the word "political" did not remove the statement from the Act's protection. During the hearing, the Association sought to amend the charge to allege a unilateral change in the practice of allowing such political postings. The motion was denied as untimely since it was made on the day of hearing, more than four months after the alleged unilateral change, and did not relate back to the facts pled in the original charge. (ALJ Blassman, U-23077, 9/23/03)

POLICE BENEVOLENT ASSOCIATION OF THE POLICE DEPARTMENT OF THE COUNTY OF NASSAU, INC. AND COUNTY OF NASSAU. A charge alleging a violation of 209-a.1(d) of the Act because the employer unilaterally changed a past practice pursuant to which unit members in the Applicant Investigations Unit were permitted to use County cars for commuting purposes was dismissed by an ALJ. The ALJ held that while the practice continued for a substantial period of time, the practice was not unequivocal since the evidence demonstrated that unit members were aware that the cars could be used for commuting purposes only when required for work. Additionally, the employees could not have had a reasonable expectation that the practice would continue since they were aware that the use of the vehicles was contrary to official County policy. (ALJ Maier, U-23999, 9/29/03)

DORINE LYNCH AND COURT OFFICERS BENEVOLENT ASSOCIATION OF NASSAU COUNTY, INC. A charge alleging a violation of 209-a.2(c) of the Act was dismissed for failure to comply with pleading requirements. (Director Klein, U-24409, 9/29/03)

LOCAL 372, DISTRICT COUNCIL 37, AFSCME, AFLCIO, AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ issued a decision which deferred a charge alleging that the employer violated 209-a.1(d) of the Act by not affording health insurance coverage to substitute employees who worked for a three month period and by failing to make welfare trust fund contributions on behalf of those employees. The parties' collective bargaining agreement (CBA) was expired and contained a grievance process which ended in binding arbitration. Pursuant to PERB's merits deferral policy, the charge was deferred subject to a motion to reopen should the award not satisfy the criteria for deferral set forth in New York City Transit Authority (Bordansky), 4 PERB 3031 (1971). (ALJ Maier, U-23325, 10/2/03)

LOCAL 372, DISTRICT COUNCIL 37, AFSCME, AFL-CIO, AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ issued a decision which deferred a charge alleging that the employer violated 209-a.1(d) and (e) of the Act by failing to abide by the layoff and recall procedures set forth in the parties' CBA. The CBA was expired and contained a grievance process which ended in binding arbitration. DC 37 acknowledged that the allegations of the 209-a.1(d) specification raised the same issues as those raised by the 209-a.1(e) specification. Pursuant to PERB's merits deferral policy, the charge was deferred subject to a motion to reopen should the award not satisfy the criteria for deferral set forth in New York City Transit Authority (Bordansky), 4 PERB 3031 (1971). (ALJ Maier, U-24381, 10/3/03)

E. TRINA LIPTON AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. For failure to comply with filing requirements as well as lack of standing to file a failure to bargain charge, the Director dismissed a charge alleging a violation of 209-a.1(d) of the Act. (Director Klein, U-24444, 10/7/03)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - GROVELAND CORRECTIONAL FACILITY). A charge of improper transfer of unit work outside the bargaining unit was dismissed. The record revealed that the employees in both the nonunit and unit titles performed most of the at-issue duties. While the nonunit employee had previously performed the duties in the facility's minimum security compound and the unit employee had performed them at one of the facility's medium security compounds, the transfer of the function of the minimum security compound to the location of the atissue medium security compound and the changes in function at that compound upon the transfer resulted in a lack of exclusivity to the charging party's unit. (ALJ Comenzo, U-23502, 10/22/03)

SOO H. (SUSAN) TSUI AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The charges alleged that the District violated 209-a.1 (a) and (c) of the Act when, in retaliation for Tsui's seeking union assistance and filing grievances, the District placed a disciplinary letter in her personnel file, issued an unsatisfactory observation report, and terminated her employment. The ALJ dismissed the charges for failure to prove improper motive, noting that the District had attempted to terminate her employment before she had engaged in protected activity. (ALJ Blassman, U-22908 & U-22988, 10/29/03)

COUNTY OF NASSAU. The ALJ held that the County did not violate 209-a.1(d) of the Act when it unilaterally rescinded assignment of a County-owned vehicle to a unit member on a twenty-four hour a day, seven day a week basis. Where the evidence demonstrated inconsistency with respect to kitchen supervisors having vehicles made available to them for personal use, there is no clear and unequivocal practice which must be enforced. (ALJ Cacavas, U-23206, 6/3/03)

HAUPPAUGE UNION FREE SCHOOL DISTRICT AND UNITED PUBLIC SERVICE EMPLOYEES UNION, TCU, AFL-CIO. The ALJ dismissed a charge alleging a violation of 209-a.1(a) and (c) of the Act because an employee was not chosen as a substitute for the head custodian due to his union activity for the period when the head custodian was on vacation. The ALJ concluded that the employee had engaged in protected activity and that the principal was aware of his activity. He concluded, however, that the failure to appoint the employee was not related to his exercise of protected activity under the Act, but due to bona fide concerns with his attitude toward coworkers and supervisors. (ALJ Maier, U-23876, 6/13/03)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO AND INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 409. The Union was found to have violated 209-a.2(b) of the Act when it refused to comply with the District's request for information relevant to the parties' negotiations for a collective bargaining agreement. As to its claim that it was not in possession of the records, Local 409 was ordered to explain the basis for the claim of nonpossession; make an effort to obtain the information sought; investigate alternate sources and communicate the results of its efforts to the District. The District's argument that Local 409 is an unincorporated association and its president is, therefore, empowered to compel disclosure of the information from its members, was rejected on a finding that common law agency principles do not appropriately define the relationship of a union to its members. (ALJ Doerr, U-22671, 6/19/03)

VICTOR MALTSEV AND LOCAL 375, DISTRICT COUNCIL 37, AFSCME, AFL-CIO. The Director dismissed a charge alleging a violation of 209-a.2(c) of the Act upon a finding that, as a union has no duty to seek amendment to State law because that is beyond the employment relationship, it had no duty to explain in writing to Maltsev why it had not done so. (Director Klein, U-24270, 6/23/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES) AND NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. In an interim decision applying the Board's recent decision in Sherburne-Earlville School District, 36 PERB 3011 (2003), and a decision of the Appellate Division, Third Department, Hudson Valley District Council of Carpenters v. State of New York, Department of Correctional Services, 152 AD2d 105, 23 PERB 7514 (3d Dep't 1989), the ALJ held that the superintendent of a State Correctional Facility did not have authority to defeat, alter or fulfill the Governor's bargaining obligations under the Act. Therefore, the ALJ held that an agreement between the Superintendent and CSEA's local president was not an "agreement" as defined in 201.12 of the Act, and that agreement did not affect the jurisdictional limitations imposed upon PERB under 205.5(d) of the Act. Therefore, although CSEA alleged that the at-issue conduct constituted a breach of that agreement, the ALJ held that PERB had jurisdiction over the alleged unilateral change in terms and conditions of employment. Further, based upon the foregoing, the ALJ held that the State had not satisfied its burden of proof in showing that the agreement reflected its satisfaction of its bargaining obligations concerning the at-issue conduct, much less CSEA's waiver of its right to negotiate concerning that conduct. (ALJ Quinn, U-23311, 6/24/03)

1199 CAPITAL REGION DIVISION, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC AND TOWN OF COLONIE. An improper practice charge that the employer unilaterally changed a practice allowing employees to move from full-time to part-time employment upon request was dismissed following the union's offer of proof, as the creating and filling of positions are nonmandatory subjects of bargaining. The union's alternative theory for application of the Board's decisions, starting with City of Cohoes, converting certain nonmandatory subjects of bargaining into mandatory ones was rejected, as those decisions concern provisions of parties' collective bargaining agreements in successor and/or reopener contexts. (ALJ Comenzo, U-23456, 6/26/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND TOWN OF CICERO. The Town was found to have violated 209- a.1(d) of the Act when its chief negotiator failed to support the agreement at ratification and did not previously inform CSEA that he would not support it. The Town was found to have waived its right to ratify and ordered to execute the agreement reached. (ALJ Doerr, U-23710, 7/1/03)

PROFESSIONAL STAFF CONGRESS- CITY UNIVERSITY OF NEW YORK AND CITY UNIVERSITY OF NEW YORK. The ALJ held that CUNY violated 209- a.1(d) of the Act when it failed to bargain upon demand with the union regarding compensation and a dispute resolution process in an intellectual property policy. CUNY admitted that it refused to bargain, but premised its actions upon several waiver defenses. The ALJ held that, while CUNY was able to implement the policy pursuant to the terms of the expired collective bargaining agreement, the clauses relied upon did not relieve it of a bargaining obligation in other respects. Those aspects of the policy which were not pled in the charge, or set forth with sufficient clarity to apprise CUNY of the scope of the charge, were dismissed. (ALJ Maier, U-22948, 7/1/03)

NEW HARTFORD EMPLOYEES UNION, NYSUT/AFT AND NEW HARTFORD CENTRAL SCHOOL DISTRICT. The charge was deferred to the parties' contractual grievance procedure as the union has filed a grievance based on the same facts as pled in the charge. (ALJ Comenzo, U-23779, 7/1/03)

RIVERHEAD UNION FREE SCHOOL DISTRICT. The ALJ dismissed a charge which alleged that the District unilaterally changed from five to ten years the service requirement for retiree health insurance where the credible evidence showed that a ten-year requirement had been in existence since the time that the health coverage went into effect. Both the charging party's stipulation that no one with fewer than ten years of service had ever received the health insurance benefit upon retirement, combined with evidence that a seven year retiring employee had, in fact, been previously denied coverage, undermined the claim that the employer had violated past practice when it declined coverage for an employee of only five years. (ALJ Cacavas, U-23658, 7/1/03)

CHALMERS C. CLARK AND PROFESSIONAL STAFF CONGRESS - CUNY. The Director dismissed a charge alleging that the Congress breached its duty of fair representation by not processing a grievance to arbitration because it did not plead facts which would arguably establish the union's conduct as arbitrary, discriminatory or in bad faith. (Director Klein, U-24186, 7/1/03)

CITY OF NIAGARA FALLS AND THE NIAGARA FALLS UNIFORM FIREFIGHTERS ASSOCIATION, AFL-CIO, LOCAL 714. Following failure to reach agreement in the course of impact bargaining over the reduction of staffing, Local 714 filed for compulsory interest arbitration. Local 714's proposal variously analyzed as a safety issue, a hazardous pay issue and a staffing issue, was found to be nonmandatory and, therefore, improperly the subject of a petition for interest arbitration. (ALJ Doerr, U-23662 & U-23731, 7/3/03)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK (OFFICE OF MENTAL HEALTH - SOUTH BEACH PSYCHIATRIC CENTER). The State was found to have violated 209-a.1(d) of the Act when it subcontracted with SUNY for pharmacy management services at the South Beach Psychiatric Center. Article 22 of the parties' agreement granted to the State the right to subcontract for goods and services with third parties only and did not cover transfers of unit work from one group of State employees to another group of State employees. As Article 22 did not serve as a reasonable source of right to PEF, the charge was not deferred. Neither could the State be said to have satisfied its duty to bargain the at-issue transfer of work when agreement was reached on Article 22. The same language in Article 22, specifically the phrase "contract out", had been previously found by the Board to encompass contracting to third parties only. (ALJ Doerr, U-22682, 7/3/03)

DIANA L. SIEGEL AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO. The ALJ dismissed a charge alleging that the UFT violated its duty of fair representation by not responding to inquiries and by not taking a grievance to step 3 regarding the denial of a summer school position. The ALJ dismissed the charge at the close of Siegel's case, finding that the UFT in fact did respond to her inquiries. Additionally, he noted that in a prior decision issued by the Board involving the same parties, the Board had dismissed her charge which alleged that the UFT did not represent her properly in conjunction with its failure to file a grievance regarding the denial of a summer school position in the previous year. The ALJ concluded that no facts were adduced which would demonstrate a violation of the Act by the UFT, and that her interpretation of the CBA is not the only possible one. (ALJ Maier, U-23812, 7/16/03)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. The charge alleged that the Authority discriminated against, and interfered with, an employee's rights under the Act, in violation of 209-a.1 (a) and (c) of the Act, when it directed the employee to submit to a medical examination and enroll in a substance abuse relapse prevention program in retaliation for the employee's involvement in a prior charge. It was undisputed that the Authority had reviewed the employee's medical records in connection with the prior charge and acted because of information it found in connection with that review. The ALJ found that the TWU had proven a prima facie case, since the action would not have been taken but for the employee's involvement in the prior charge; but dismissed the charge on the ground that the Authority established that its actions were motivated by legitimate business reason. The ALJ found that the doctor who made the determination had not acted because of union animus, but upon a firmly held belief that the employee required treatment. (ALJ Blassman, U-24228, 7/23/03)

CHARLES JANAY AND NEW YORK STATE COURT CLERKS ASSOCIATION AND STATE OF NEW YORK - UNIFIED COURT SYSTEM. An ALJ dismissed a charge which alleged that the union had breached its duty of fair representation by failing to file an EEOC complaint on Janay's behalf, by refusing to allow him to speak with its attorney, by failing to respond to inquiries, and by failing to assist him in obtaining a transfer. The ALJ held that the union did not have an obligation to file an EEOC complaint and that its policy not to file such complaints was not applied in an arbitrary, discriminatory or bad faith manner regarding Janay. Additionally, the ALJ concluded that the Association's policy as to when members could speak with the Association's attorney was not applied in an arbitrary, discriminatory or bad faith manner, the union responded to Janay's inquiries, and that it, in fact, did assist him is seeking a transfer. As a result, the charge was dismissed. (ALJ Maier, U-23625, 7/23/03)

MOHAMMED SAIDIN AND UNITED FEDERATION OF TEACHERS, AFT, NYSUT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Where Saidin's offer of proof, submitted at the direction of the conferencing ALJ, after the pre-hearing conference, consisted of conclusory allegations and assumptions unsupported by facts, the charge was dismissed. An offer of proof must set forth a prima facie case. A union's failure or refusal to include in a demand for or argument at arbitration certain provisions of the collective bargaining agreement requested by the member, does not, without more, rise to a violation of its duty of fair representation. (ALJ Cacavas, U-23697, 7/28/03)

CITY OF HORNELL AND NEW YORK STATE CONFERENCE OF MAYORS AND MUNICIPAL OFFICIALS. The Director dismissed a petition seeking a declaratory ruling whether procedures used to determine or review benefits under 207-a and 207-c of the General Municipal Law are a mandatory subject of negotiation. Finding that the New York State Conference of Mayors and Municipal Officials is neither a public employer nor a public employee organization and, therefore, can never be a party to any bargaining relationship, the Director declined to issue a declaratory ruling on its petition. Further, and as to the City of Hornell, the Director did not find it in the public interest to issue a ruling absent existence of a justifiable controversy, as there was no particular demand between parties to a bargaining relationship over that demand; in any event, he found the demand to be overly broad given case law tailored to specific procedures. With respect to a claim that there exists a likelihood of the issues being raised in the future, any public employer or employee organization may seek a ruling when faced with a specific demand which is refused during the course of negotiations (Director Klein, DR-111, 7/31/03)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). A charge alleging that the State unilaterally changed a practice of allowing employees to take annual leave in one-day increments was dismissed. An arbitrator having found that the past practice regarding the granting of one-day leaves did not encompass one-day leaves utilized to alter an employee's regular five-day work schedule, the PBA was collaterally estopped from relitigating the issue of past practice before PERB. Therefore, the State's denial of an employee's one-day leave request and notification to him that such request would not be granted to alter his regular Monday to Friday work schedule did not contravene the parties' existing practice regarding the granting of one-day leaves (ALJ Comenzo, U-22896, 8/7/03)

ULSTER COUNTY DEPUTY SHERIFF'S POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF ULSTER. The Director conditionally dismissed the charge and deferred it to the parties' grievance procedure. (Director Klein, U-24125, 8/8/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. The charge alleged that the County terminated a Probation Officer Trainee in retaliation for engaging in protected activity. At CSEA's suggestion, the employee had, contrary to established procedure, signed a document using her trainee title in support of a planned out-of-title work grievance. The ALJ rejected the County's argument that the employee's action constituted unprotected insubordination, since she told her supervisor that she would change the title if instructed to do so and she promptly acquiesced to her supervisor's instruction. The employee's action constituted no more than a mere request for permission to use the trainee title, rather than an act of insubordination. Nonetheless, the charge was dismissed since CSEA failed to prove that the employee's termination was in any way connected to her protected activity. The County demonstrated that it was motivated by legitimate business concerns, specifically the employee's inability to cope with the workload. (ALJ Blassman, U-23838, 8/13/03)

SYRACUSE POLICE BENEVOLENT ASSOCIATION AND CITY OF SYRACUSE. The City was found to have violated 209-a.1(a) and (c) of the Act when it transferred Sergeant Therese Lore to Patrol in retaliation for her having filed a grievance. That Patrol was short of staff and that calls were up during the summer of the transfer was found to be a mere pretext for the action taken by the City. There was no evidence that that summer was different from any other or that the transfer of school information officers to patrol at the close of the school year, an annual event, would not sufficiently supplement available staff. (ALJ Doerr, U-22825, 8/13/03)

CITY OF LACKAWANNA AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFLCIO; AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFL-CIO AND CITY OF LACKAWANNA. CSEA was found to have violated the Act when it drafted a collective bargaining agreement which contained health insurance benefit provisions that were inconsistent with the parties' agreement and insisted on such terms, which were not bargained for or agreed to. CSEA's charge against the City, alleging an improper refusal to execute the collective bargaining agreement, was dismissed. (ALJ Fitzgerald, U-23896 & U-24141, 8/14/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. The charge, alleging that the County violated 209-a.1 (d) of the Act when it unilaterally changed the past practice pertaining to the manner in which compensatory leave time is used, was conditionally dismissed, upon the consent of the parties, in deference to the contractual arbitration proceeding. (ALJ Blassman, U-24264, 8/13/03)

VED P. MALHOTRA AND LOCAL 375, DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO. The Director dismissed a charge alleging a violation of 209-a.2(c) of the Act for failure to pursue a claim to a higher job title entitlement as being both untimely and lacking in facts that would arguably establish AFSCME's conduct as being arbitrary, discriminatory or in bad faith. (Director Klein, U-24384, 8/14/03)

JUAN RICO AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. For procedural deficiencies, lack of standing, timeliness and failure to factually establish a breach of the duty of fair representation, the Director dismissed a charge alleging violations of 209-a.2(a), (b) and (c) of the Act premised on a failure to arbitrate a grievance relating to an unsatisfactory rating and termination of employment. (Director Klein, U-24417, 8/28/03)

ROBERT OLSON AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The ALJ dismissed a charge which alleged that the employer violated 209-a.1(a) and (c) of the Act by placing Olson on involuntary leave and reassigning him when he returned from that leave due to his exercise of activity protected by the Act. Olson was found to have engaged in protected activity, and that the persons responsible for the complained of actions knew of this activity. The ALJ found however, that Olson had engaged in a hostile conversation with his superior during which he stated that "blood is going to be shed." The ALJ concluded that this statement gave rise to the adverse employment actions, and that the actions taken were unrelated to Olson's protected activity. The charge was, therefore, dismissed. (ALJ Maier, U-23403, 4/2/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, ERIE COUNTY LOCAL 185, ERIE COUNTY UNIT AND COUNTY OF ERIE AND ERIE COUNTY COMMUNITY COLLEGE. The employer was found to have violated 209-a.1(d) of the Act when employees represented by CSEA were transferred to second and third shifts for certain periods of time and a nonunit employee assumed their supervisory responsibilities, and where a nonunit employee assumed the supervisory responsibilities of bargaining unit employees during the extended leave of a union employee. The employer was also found to have violated 209-a.1(a) and (c) when a supervisor threatened a unit member with a change in schedule and loss of his job as a result of filing an improper practice charge and when its then Director of Labor Relations threatened to end a scheduling "accommodation" for a unit member stating "we do not accommodate people who bring us to PERB" after the conclusion of a pre-hearing conference. The employer's actions allowing the limited and temporary assumption of some supervisory duties by nonunit employees were found not to have breached the exclusivity otherwise maintained by CSEA and not to be in violation of the Act. No violation of the Act was found as a result of the attempted change of a unit member's schedule, where the change was never accomplished, where there was proffered a business reason in support of the change, and where, other than a close proximity in time between the alleged protected activity and the attempted change, the record did not establish a causal connection. (ALJ Kaufman, U-23119, U-23197, U-23279, U-23313 & U-23337, 4/7/03)

OXFORD ACADEMY AND CENTRAL SCHOOL TEACHERS' ASSOCIATION, NEA/NY, NEA AND OXFORD ACADEMY AND CENTRAL SCHOOL DISTRICT. The charge was deferred to the parties' contractual grievance procedure, as the Association had filed a grievance on the same facts as pled in the charge. (ALJ Comenzo, U-23776, 4/8/03)

TOWN OF MAMARONECK PROFESSIONAL FIRE FIGHTERS ASSOCIATION, LOCAL 898, IAFF AND TOWN OF MAMARONECK. The ALJ issued a jurisdictional deferral where the Association had a reasonably arguable source of right under the parties' collective bargaining agreement concerning the dispute at issue in the charge. (ALJ Quinn, U-24004, 4/8/03)

TOWN OF MAMARONECK PROFESSIONAL FIRE FIGHTERS ASSOCIATION, LOCAL 898, IAFF AND TOWN OF MAMARONECK. The ALJ issued a jurisdictional deferral where the Association had a reasonably arguable source of right under the parties' collective bargaining agreement concerning the dispute at issue in the charge. (ALJ Quinn, U-24005, 4/8/03)

LAWRENCE UNION FREE SCHOOL DISTRICT AND ASSOCIATION OF LAWRENCE ADMINSTRATORS. The ALJ dismissed a charge which alleged that the District violated 209-a.1(d) of the Act by unilaterally changing the past practice of requiring the unit members to work twenty days instead of sixteen days during the summer months. The ALJ found that, assuming arguendo the existence of a past practice, the District was entitled to revert to the terms of the parties' collective bargaining agreement which defined the members' work year as including twenty work days during the summer months. (ALJ Maier, U-23596, 4/10/03)

GREGORY CHARLES STEIN AND THE PROFESSIONAL STAFF CONGRESS/CITY UNIVERSITY OF NEW YORK AND THE CITY UNIVERSITY OF NEW YORK. To establish that a union has breached its duty of fair representation, a charging party must show that the union's conduct was arbitrary, in bad faith or discriminatory. A mere disagreement with the tactics utilized or dissatisfaction with the quality or extent of representation does not constitute a statutory breach. Even negligence or judgment in error does not establish a violation. PERB is loath to substitute its judgment for that of the union. Where a union representative gives advice based on her interpretation of the law, even if erroneous, a statutory breach does not occur. (ALJ Cacavas, U-23510, 4/10/03)

SHERIFF OFFICERS ASSOCIATION, INC. AND COUNTY OF NASSAU AND SHERIFF OF NASSAU COUNTY AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ sustained SOA's charge that alleged that the County and the Sheriff violated the Act when they unilaterally assigned nonunit deputy sheriffs to a hostage-crisis intervention team. The SOA-unit correction officers were found to have exclusively performed the work of the Team since its inception during the 1990's. The County's argument that the correction officers had no exclusivity because the deputy sheriffs also dealt with difficult suspects, was rejected since the County itself had drawn a discernible boundary around the work performed at the Correctional Center and had not previously assigned deputy sheriffs to work within the confines of that facility. Nor was the County's managerial prerogative argument accepted, since the prohibition on subcontracting the work of the Team did not prevent the County from otherwise training the deputy sheriffs in hostage and crisis intervention, nor did it impinge on whatever right the County might have to seek assistance from outside sources in the event of a major crisis. (ALJ Blassman, U-23112, 4/11/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, SUFFOLK EDUCATIONAL LOCAL 870, CENTRAL ISLIP SCHOOL DISTRICT UNIT AND CENTRAL ISLIP UNION FREE SCHOOL DISTRICT. The charge, alleging that the District unilaterally transferred exclusive unit work in violation of 209-a.1 (a) and (d) of the Act, was conditionally dismissed, upon the consent of the parties, in deference to the contractual arbitration proceeding. (ALJ Blassman, U-23866, 4/16/03)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The charge was deferred to the parties' contractual grievance procedure, as the Association had filed a grievance on the same facts as pled in the charge. (ALJ Comenzo, U-24015, 4/17/02)

AMHERST HIGHWAY EMPLOYEES ASSOCIATION AND TOWN OF AMHERST. The Town was found to have violated 209-a.1(d) of the Act when it unilaterally transferred the performance of open ditch drainage work to nonunit personnel. So much of the charge that complained of the abrogation of a settlement agreement defining the unit's exclusive right to haul materials for the Town was conditionally dismissed. (ALJ Doerr, U-23397, 4/17/03)

VILLAGE OF HAMBURG POLICE BENEVOLENT ASSOCIATION AND VILLAGE OF HAMBURG. The Village was found to have violated the Act when it unilaterally promulgated a "Transitional Work Program" setting forth procedures for light duty assignments and the receipt of GML 207-c benefits by police officers who have been injured in the performance of their duties where such program contained provisions subject to mandatory bargaining. (ALJ Kaufman, U-22870, 4/18/03)

ALLEGANY COUNTY DEPUTY SHERIFF'S ASSOCIATION, LOCAL 2989, COUNCIL 82, AFSCME, AFL-CIO AND COUNTY OF ALLEGANY AND SHERIFF OF ALLEGANY COUNTY. An improper practice charge alleging unilateral transfer of unit work was dismissed, as the management rights clause provides the right to the County to determine whether the work required shall be performed by unit employees. (ALJ Fitzgerald, U-23805, 4/18/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, ONTARIO COUNTY LOCAL 835, AVON CENTRAL SCHOOL DISTRICT EMPLOYEE UNIT (CSEA) AND AVON CENTRAL SCHOOL DISTRICT. The District was found to have violated the Act when it refused CSEA's demand to commence negotiations for a collective bargaining agreement following CSEA's certification. The District's defense that, as a successor union, CSEA was bound to the agreement negotiated with the previous bargaining representative for the unit (which by its terms was effective until June 30, 2004), was rejected, as 208.1(a) of the Act provides a newly certified bargaining agent the right to demand negotiations for a new agreement to be effective at the start of the employer's next fiscal year, notwithstanding the existence of any prior agreement. (ALJ Fitzgerald, U-23450, 4/22/03)

RICHARD S. WILLIAMS AND NEW YORK CITY TRANSIT AUTHORITY. The Director dismissed a charge, as amended, alleging violations of every sub-section of 209-a.1 and 209-a.2 of the Act for the reasons that, inter alia, individuals lack standing to allege violations of 209-a.1(d) or (e) and 209-a.2(b) of the Act, no facts were pled to establish employee organization conduct as being violative of 209-a.2(a) or (c), or of facts that would support any violation of the Act by the employer. (Director Klein, U-24166, 4/23/03)

ONEIDA COUNTY DEPUTY SHERIFF'S BENEVOLENT ASSOCIATION, LOCAL 1249, NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO AND COUNTY OF ONEIDA AND ONEIDA COUNTY SHERIFF. An ALJ deferred an improper practice charge alleging a violation of 209-a.1(e) of the Act where the underlying dispute was subject to the parties' contractual grievance procedure which, along with the asserted contractual right, continues in force and effect. (ALJ Quinn, U-23314, 5/1/03)

COUNTY OF NASSAU AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ dismissed a charge alleging that the County violated 209-a.1(d) of the Act by unilaterally imposing reporting requirements that employees notify the County's Department of Social Services of any criminal convictions, or the suspension or revocation of their driver license, if they are required to have such a license pursuant to civil service regulations. Based upon Levitt v. Board of Collective Bargaining of the City of New York, 79 NY2d 120 (1992), which found that a reporting requirement that employees disclose information which were matters of public record did not did not give rise to a bargaining obligation, the ALJ held that this requirement could be unilaterally imposed. The ALJ found that the County's interests outweighed the employees' interests and the fact that violation of the requirement could lead to discipline did not render the rule mandatory. (ALJ Maier, U-23464, 5/7/03)

TOWN OF CLARKSTOWN AND TOWN OF CLARKSTOWN UNIT, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL1000, AFSCME, AFL-CIO. The Director found that the union violated 209-a.1(d) of the Act when it repudiated an agreement concerning the use of time clocks. (Director Klein, U-24167, 5/13/03)

NIAGARA FRONTIER TRANSIT METRO SYSTEMS, INC. AND AMALGAMATED TRANSIT UNION, LOCAL 1342. NFT Metro was found to have violated 209-a.1(d) of the Act when it refused ATU's request to bargain the impact of a determination to use video tape footage in disciplinary proceedings. (ALJ Doerr, U-23492, 5/14/03)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ dismissed the TWU's charge which alleged that the Authority had engaged in unlawful interference, in violation of 209-a.1(a) of the Act, when a manager yelled at and threatened a union representative. The ALJ found that the manager and the TWU representative had merely engaged in a yelling match, that the manager had reacted in the heat of the moment, and that the record did not demonstrate that the manager's actions either had the effect of, or were taken with the intention of, interfering with union activity. It was noted that the manager did not attempt to stop the representative from performing union business after their exchange and that no history of interference by the manager existed. The manager's reaction was found to constitute an "uncontrolled personal response" of the type that the Board found in New Paltz Central School District, 17 PERB 3108 (1984), not to violate the Act. (ALJ Blassman, U-23333, 5/15/03)

LEE K. BRONSON AND CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000 AND LOCAL 648. Bronson alleged violations of 209-a.2(a) and (c) of the Act when his union's litigation against his employer, in which he was named, resulted in the loss of his position. Upon findings that mere commencement of a lawsuit to preserve unit rights as a whole is neither an interference with a 202 right nor a breach of the duty of fair representation, the Director dismissed the charge, as amended. (Director Klein, U-24019, 3/6/03)

LEWIS K. SHAYNE AND STATE OF NEW YORK (DEPARTMENT OF INSURANCE). The Director dismissed as being untimely a charge alleging violations of 209- a.1(a) and 209-a.1(c) of the Act predicated on a theory of reintroduction of an alleged violation having its genesis in events that occurred more than four months prior to filing. (Director Klein, U-23842, 3/6/03)

SUFFOLK COUNTY DETECTIVE INVESTIGATOR'S POLICE BENEVOLENT ASSOCIATION, INC.; AND SUFFOLK COUNTY COMMUNITY COLLEGE GUILD OF ADMINISTRATIVE OFFICERS; AND SUFFOLK COUNTY POLICE BENEVOLENT ASSOCIATION, INC.; AND SUFFOLK COUNTY ASSOCIATION OF MUNICIPAL EMPLOYEES, INC., WHITE COLLAR UNIT # 2; AND SUFFOLK COUNTY DETECTIVE ASSOCIATION, INC.; AND SUFFOLK COUNTY CORRECTION OFFICER'S ASSOCIATION, INC., BARGAINING UNIT 10; AND FACULTY ASSOCIATION OF THE SUFFOLK COUNTY COMMUNITY COLLEGE; AND SUFFOLK COUNTY SUPERIOR OFFICERS ASSOCIATION, INC.; AND SUFFOLK COUNTY DEPUTY SHERIFFS BENEVOLENT ASSOCIATION, INC.; AND THE SUFFOLK COUNTY LEGISLATURE AND THE COUNTY OF SUFFOLK. The ALJ sustained the charges alleging that the County violated 209-a.1(d) of the Act when it changed the health insurance option period for unit employees from one open period to four quarterly open periods. The charges were dismissed to the extent that they allege a change affecting retirees. Also dismissed were the allegations against the Legislature, since, except under limited circumstances, the legislative branch has no duty to bargain under the Act and cannot be held to violate the bargaining provisions of the Act. The ALJ rejected the County's defense of duty satisfaction on the ground that the agreement in question, although including extensive provisions regarding the cost of providing insurance, does not include any provision regarding the option period. The County's motion for deferral of the charges was denied since the agreement does not serve as an arguable source of right to the employee organizations and the mere existence of a grievance procedure does not, absent a substantive right, serve as a basis to defer the charges. (ALJ Blassman, U-23200 & U-23208 through U-23215, 3/07/03)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. The charge, alleging a unilateral change in the practice pertaining to the use of compensatory leave time, was deferred upon consent of the parties to the parties' pending grievance. (ALJ Blassman, U-23911, 3/19/03)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND ROSWELL PARK CANCER INSTITUTE. The employer was found to have violated the Act when it unilaterally determined that no impact resulted from its change in evaluation criteria, and thereafter refused to bargain with the employee bargaining organization which had demanded impact bargaining. (ALJ Doerr, U-22839, 3/21/03)

PORT JEFFERSON TEACHERS' ASSOCIATION, NYSUT, AFT, AFL-CIO AND PORT JEFFERSON UNION FREE SCHOOL DISTRICT. The ALJ dismissed a charge which alleged that the guidance department head was not reappointed because of her union activity. Specifically, she was a union negotiator and officer during a contentious round of bargaining between the District and the Association. The ALJ found that she was engaged in protected activity and that the District superintendent was aware of this activity. He held, however, that she was not reappointed to her position because of unanimous complaints about her performance in the position by the school administrators with whom the superintendent held monthly meetings. The complaints were reduced to writing and were initiated by the administrators themselves. There was no evidence that these complaints were motivated by her protected activity, or that the District failed to reappoint her because of that activity. The charge was therefore dismissed. (ALJ Maier, U-22918, 3/21/03)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1635 AND CITY OF ROCHESTER. Improper practice charge alleging that the City of Rochester violated 209-a.1(a) and (c) of the Act when it retaliated against an employee due to his having engaged in protected activity was dismissed, as there was no showing that hostile behavior of the supervisor was related to any activity protected under the Act. (ALJ Fitzgerald, U-23289, 3/24/03)

SANDRA T. WILLIAMS AND NEW YORK CITY AMALGAMATED TRANSIT UNION LOCAL 1056 HEALTH BENEFIT TRUST. For failure to plead facts which would arguably establish that the Trust is a "public employer" as that term is defined by the Act, the Director dismissed for want of jurisdiction a charge alleging, as amended, a violation of 209-a.1(c) of the Act. (Director Klein, U-23835, 1/3/03)

COLD SPRING HARBOR TEACHERS' ASSOCIATION, LOCAL # 2710, NYSUT, AFT, AFL-CIO AND COLD SPRING HARBOR CENTRAL SCHOOL DISTRICT. The ALJ found that the District violated 209-a.1(d) of the Act when it assigned nonunit teaching assistants the exclusive unit work of teaching Academic Intervention Services. Although either teaching assistants or teachers could provide those services, only teachers could work independently in providing those services. Since the record showed that the teaching assistants worked independently, that they prepared their own lessons and materials and were not supervised by a teacher, the teaching assistants were found to have performed the exclusive work of teachers. (ALJ Blassman, U-22619, 1/8/03)

MARIE SUZE PIERRE AND UNITED UNIVERSITY PROFESSIONS. The Director dismissed a charge alleging a violation of 209-a.2(c) of the Act for failure to plead a clear and concise statement of the facts constituting the alleged improper practice, including the time and place of occurrence of each particular act alleged, as well as for failure to plead any conduct which would arguably and timely establish arbitrary, discriminatory or bad faith conduct. (Director Klein, U-23696, 1/13/03)

DOUGLAS DIETZ AND UTICA TEACHERS ASSOCIATION AND UTICA CITY SCHOOL DISTRICT. An ALJ dismissed a charge alleging that a union breached its duty of fair representation by settling a dispute the charging party was having with his employer without investigating the merits of the dispute or consulting him on the terms of the settlement. The charging party had filed no grievances regarding the dispute and did not request the union to do so on his behalf. Although the time within which 5 Decisions of the Office of Representation timely grievances could have been filed had passed, the union successfully negotiated a resolution of the dispute. According to the ALJ, the union reasonably believed that there was nothing to investigate. Moreover, relying on Board precedent, the ALJ held that it was not unlawful for the union to resolve the dispute without first consulting the charging party regarding the terms of the settlement. (ALJ Quinn, U-23271, 1/15/03)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). An ALJ conditionally dismissed an improper practice charge until a determination could be made regarding the dispute in accordance with the parties' contractual grievance procedure. (ALJ Quinn, U-23865, 1/30/03)

CARLETTA THOMPSON AND NEW YORK CITY DEPARTMENT OF PROBATION. A charge alleging various wrongs in violation of 209-a.1(a), (b), (c), (d) and (e) of the Act by the City, as amended, was dismissed for lack of jurisdiction over the respondent, as well as for insufficiency of facts and legal standing to file. (Director Klein, U-23980, 1/31/03)

COUNTY OF NASSAU AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ held that the County violated 209-a.1(d) of the Act when it unilaterally rescinded the assignment of a car to an employee for commuting purposes. The prior incumbent in the employee's position had been assigned a car for a number of years. The ALJ, therefore, found that the employee had the expectation that this practice would continue and that, consistent with prior case law, the use of a car is a mandatory subject of bargaining. In accordance with Bellmore Union Free School District, 34 PERB 3009 (2001), the practice did not need to affect the unit as whole but was title specific. The County could, therefore, not unilaterally rescind the assignment. (ALJ Maier, U-23388, 2/11/03)

SOUTHOLD ADMINISTRATORS ASSOCIATION AND MARY FITZPATRICK AND SOUTHOLD UNION FREE SCHOOL DISTRICT. An individual unit member lacks standing to allege a violation of 209-a.1(d) of the Act. The mootness doctrine prescribes that where an issue is purely academic, a consideration of the underlying merits of a charge shall not be undertaken. The doctrine applies to matters before PERB. Where there is alleged a violation of 209-a.1(d) of the Act based on an employer's unilateral action regarding a mandatory term and condition of employment, the employer's rescission of the action makes moot the charging party's claim. Where, however, the unilateral action was also alleged to have constituted unlawful interference in violation of 209-a.1(a) of the Act, the subsequent rescission does not moot the issue of the alleged wrong. Rather, it cannot be said that no wrong was suffered by the charging party and the act of unlawful interference, and its effects, remain. The application of the mootness concept is controlled by the particular facts of the case and applied only to the extent consistent with the policies of the Act. Where a claim is one of interference and is based on unilateral action involving something so fundamental as compensation, mootness should not be applied. The adverse impact arising from the action is not alleviated by its subsequent rescission. The employer's granting a salary increase to one of two members in a bargaining unit during the course of protracted negotiations on a first contract constitutes unlawful interference. Pursuant to PERB's four-month period of limitations, a charge may be brought from the later of notice or implementation of the complained-of act. While an employer generally may unilaterally set initial salary for a new hire, an employer may not bypass its bargaining obligation prospectively by setting out in the employment letter a schedule of future salary increases. (ALJ Cacavas, U-23390, 2/11/03)

LACKAWANNA COMPETITIVE EDUCATIONAL SECRETARIES, NEA/NY AND LACKAWANNA CITY SCHOOL DISTRICT. An improper practice charge alleging that the District subcontracted unit work was dismissed, as the union failed to prove that it had exclusively performed said work. In addition, the subcontracting of school lunch program management after voter rejection of two budgets, occurred not as a result of unilateral District action but by operation of law. (ALJ Doerr, U-23338, 2/12/03)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, LOCAL 264 AND COUNTY OF ERIE AND ERIE COUNTY SHERIFF. The employer was found to have violated 209-a.1(d) of the Act by its failure to provide an EEO report and portions of an internal affairs report, or to negotiate an accommodation to provide necessary and relevant information to the Teamsters' counsel, for purposes of processing a grievance challenging an employee's termination. (ALJ Fitzgerald, U-23017, 2/18/03)

ROBERT ATKINSON, JR., AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed a charge, as amended, alleging a violation of 209- a.2(c) of the Act for the reasons that, inter alia, it pled no facts that would arguably establish arbitrary, discriminatory or bad faith conduct, and, as to that part of the charge asserted on behalf of unnamed persons constituting an employment title, became PERB's Rules of Procedure do not permit for the filing of class actions. (Director Klein, U-23994, 2/24/03)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, NYSUT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An employer is made a party to a charge which alleges that the bargaining agent's breach of the duty of fair representation related to its failure to process, or the manner of processing, a grievance brought pursuant to the collective bargaining agreement. The doctrine of collateral estoppel, also known as issue preclusion, prevents a party from relitigating in a subsequent action or proceeding an issue actually litigated and determined in a prior proceeding, whether or not the tribunals or causes of action are the same, unless there was a denial of a full and fair opportunity for hearing in the first instance. Collateral estoppel has a narrower application than the doctrine of res judicata, which prohibits a party from relitigating any claim which could have or should have been litigated in a prior proceeding. To show a breach of the duty of fair representation, a charging party must establish that the union acted arbitrarily, discriminatorily or in bad faith. A unit member's disagreement with the union's refusal to process his grievance, without more, does not rise to the level of a breach. (ALJ Cacavas, U-23378, 2/24/03)

UNITED STEELWORKERS OF AMERICA, LOCAL 9434-02, CITY OF NIAGARA FALLS, NIAGARA FALLS CITY SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFL-CIO. An improper practice charge, alleging that the City of Niagara Falls violated 209-a.1(a) and (d) of the Act by contracting with the Niagara Falls City School District for the performance of maintenance work at Sal Maglie Stadium was dismissed as it was found not to be timely filed. Even if the charge were timely filed, the action was not an improper transfer of unit work as the City had ceased providing the delivery of service at the stadium. The School District had leased the facility from the City and assumed control over usage and maintenance of it, with only de minimis control retained by the City as owner of the property. (U-23121, ALJ Fitzgerald, 2/27/03)

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Declaratory Rulings

UMESH PASSI et al. Petitions were filed by Passi and a number of other individuals seeking a determination as to whether they are public employees within the meaning of the Act. The petitioners worked for the Unified Court System as per diem court interpreters. Local 1070, District Council 37, AFSCME, AFL-CIO intervened and asserted that it would represent the petitioners were they determined to be public employees under the Act. The parties stipulated, in part, that the petitioners were not seeking to secure any rights under the Act. The Director dismissed the petitions pursuant to 210.2(a) of the Rules on the ground that it is not in the public interest to issue such a ruling. Since there was no dispute between the parties relating to rights guaranteed by the Act, the issuance of such a ruling would not further any legitimate interest the agency has in the administration of the Act. (Director Klein, DR 080, DR-084, DR-087, DR-092, DR-093, DR-098, DR-104 & DR-110, 11/25/03)

VILLAGE OF SPRING VALLEY. The ALJ held that a bargaining proposal calling for the creation of a safety committee with jurisdiction over complaints concerning unsafe equipment was mandatorily negotiable notwithstanding the fact that such complaints, if not resolved, were subject to binding grievance arbitration. After discussing the seminal decisions of the Board regarding safety committees, the ALJ concluded that the instant demand was mandatorily negotiable because the safety committee could not dictate the removal of equipment from service, generally, or even at all. Further, contrary to the employer's argument, the mere possibility that the committee may recommend such measures to address specific safety issues, or that an arbitrator may direct such measures, does not render the demand non-mandatory. (ALJ Quinn, DR-109, 4/11/03)

LOCAL 355, UNITED SERVICE WORKERS, TRANSPORTATION COMMUNICATIONS UNION, AFL-CIO. The Administrative Law Judge held, based upon a stipulated record, that the Center for Animal Care and Control (CACC) was not a public employer within the meaning of 201.6(a) of the Act. The ALJ concluded that, though the CACC was dependent upon the City for its financing and was its only customer, the CACC was a not-for-profit corporation which had control over its own labor relations. The Directors were appointed by the mayor, but were not subject to his power to remove them from office. The employees did not have civil service status and the CACC could not exercise power which is solely reserved for the State. As the parties stipulated, the CACC does not have the power to tax, enact legislation which is judicially enforceable, take by eminent domain, or to exercise police powers. Since it was not unequivocally public, the CACC does not fall within the jurisdiction of the Act. (ALJ Maier, DR-106, 2/27/03)

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