Summaries of Recent Decisions - Since January 1, 2011

(Updated November 23, 2011)

Note: The complete text of all Board and Administrative Law Judge decisions are available online from Westlaw electronic research services, a paid subscription service.



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Decision Summaries Of The Board

Board Certifications

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of all adult nursing Instructors employed by the Eastern Suffolk BOCES who receive contracts for more than 600 hours during the BOCES fiscal year. All other employees are excluded. (C-6021, 3/1/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of all part-time and full-time bus drivers, attendants, dispatchers, assistant dispatchers, driver/substitute dispatchers and couriers employed by the Plainedge UFSD. All other employees are excluded. (C-6025, 3/1/11)

TEAMSTERS LOCAL 687 has been certified as the exclusive representative of the Receiver of Taxes and Assessments, Deputy Receiver of Taxes and Assessments, Deputy Town Clerk, Court Clerk and Building and Maintenance Worker employed by the Town of Massena. Excluded from the unit are the following: part-time employees, Assessor, Library Director, Library Personnel, Highway Superintendent and Secretary/Bookkeeper. (C-6034, 5/2/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of all Head Custodians, Custodians, Maintenance Mechanics, Groundsmen, Head Groundsmen, Cleaners and Security Workers employed by the Gates Chili Central School District. All other employees are excluded. (C-6036, 5/2/11)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all monitors employed by the Mahopac Central School District. Excluded from the unit are substitute (per diem) monitors and all other titles. (C-6024, 5/2/11)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of A unit composed of all full-time and regularly working part-time EMT Basic, EMT Critical Care, EMT Paramedic, Maintenance Mechanic II & III, Automotive Mechanic II & III, Automotive Equipment Operator, Clerk Typist, Senior Clerk Typist, Emergency Services Dispatcher I & II, Custodial Worker I, and Fire Protection Coordinator in the Setauket Fire District. All other employees are excluded. (44 PERB ¶3000.12, C-6011, 8/19/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, INC., AFSCME, AFL-CIO has been certified as the exclusive representative of a unit composed of Electric and Water Technician, MEO, Clerk/Treasurer, Deputy Clerk/Treasurer, Laborer and Electric Clerk in the Village of Holley. All other employees are excluded. (44 PERB ¶3000.11, C-6045, 8/19/11)

POLICE BENEVOLENT ASSOCIATION OF NEW YORK STATE, INC. has been certified as the exclusive representative of a unit of New York State employees composed of Traffic and Park Officer, Park Patrol Officer, Park Patrol Officer (Spanish), Sergeant Park Patrol, Lieutenant Park Patrol, Captain Park Patrol, Environmental Conservation Officer, Environmental Conservation Officer Trainee I and II, Supervising Environmental Conservation Officer, Chief Environmental Conservation Officer, University Police Officer I, University Police Officer I (Spanish), University Police Officer II, University Police Investigator I and II, and Forest Ranger I, II and III. All other employees are excluded. (44 PERB ¶3000.10, C-6056, 8/19/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, INC., AFSCME, AFL-CIO has been certified as the exclusive representative of a unit all regularly scheduled seasonal and hourly employees of the County of Westchester in the following titles: Recreation Attendant, Department Aide, Life Guard, Medical Emergency Attendant, Maintenance Laborer, Range Officer, Senior Graphic Illustrator, Senior Recreation Leader, Teacher Assistant, Cleaner, Bridge Attendant, Junior Administrative Assistant, Laborer, Maintenance Mechanic 1 and Secretary 1. The employees in the following titles are excluded from the unit: Assistant Games Manager, Facility Manager, Life Guard Captain, Life Guard Lieutenant, Principle Teacher and all other employees (specifically, but not limited to "ushers" at the County Center for Events, and Community Service Aides for Special Events at County Parks). (44 PERB ¶3000.09, C-6007, 8/19/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, INC., AFSCME, AFL-CIO has been certified as the exclusive representative of a unit composed of Head Cook, Cook, Food Service Worker, new hire (i.e. Food Service Worker with less than three years service) in Cold Spring Harbor Central School District. All other employees are excluded. (44 PERB ¶3000.08, C-6046, 8/19/11)

VILLAGE OF ALBION DPW EMPLOYEES ASSOCIATION has been certified as the exclusive representative of a unit composed of Laborer, Motor Equipment Operator, General Maintenance, Water Maintenance Worker, Sewage Treatment Plant Maintenance Mechanic, Water Treatment Plant Maintenance Mechanic, Auto Mechanic, Sewer Treatment Plant Operator, Water Treatment Plant Operator, Senior Sewage Treatment Plant Operator, Senior Water Treatment Plant Operator, Working Supervisor, and Water Treatment Plant Operator Trainee in the Village of Albion. All other employees excluded. (44 PERB ¶3000.15, C-6066, 9/26/11)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFL-CIO has been certified as the exclusive representative of a unit composed of Teachers, Teacher Leaders, Assistant Teachers, Learning Specialists, Consultant Teachers, Behavioral Specialists, Special Education Teachers, Coaches, Assistant Deans, Guidance Counselors and Social workers at the Opportunity Charter School. Excluded from the unit are: CEO, Principal, Assistant Principals, Directors, Assistant Directors, Executive Assistants, Secretaries, Department Supervisors, Deans, Parent Coordinators, Business Managers, Operations Managers, Human Resource Consultants, School Aides and all other employees. (44 PERB ¶3000.14, C-6064, 9/26/11)

GREECE UNIFORMED FIRE OFFICERS ASSOCIATION has been certified as the exclusive representative of a unit composed of Fire Captains and Lieutenants in the North Greek Fire District. Excluded from the unit are EMT/Laborers, Dispatchers and Firefighters. (44 PERB ¶3000.13, C-6049, 9/26/11)

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Representation

STATEN ISLAND RAPID TRANSIT OPERATING AUTHORITY. Following receipt of a report and recommendation from the Director of Conciliation (Director) regarding a petition for interest arbitration filed by the United Transportation Union, Local 1440 (UTU) under §209.5 of the Public Employees’ Fair Employment Act (Act) and §205.15 of the Rules of Procedure (Rules) with respect to an impasse in contract negotiations between UTU and the Staten Island Rapid Transit Operating Authority (SIRTOA), the Board certified that a voluntary resolution of the contract negotiations between UTU and SIRTOA cannot be effected and, therefore, the impasse involving the parties was referred to a public interest arbitration panel. (TIA2010-034, 2/14/11)

CORNING COMMUNITY COLLEGE. Following the results of a secret ballot election, the Board concluded that a majority of eligible employees in the unit who cast valid ballots did not desire to be represented for the purpose of collective bargaining by the petitioner. Therefore, the petition was dismissed. (C-5976, 2/14/11)

TOWN OF TICONDEROGA. Following the results of a secret ballot election, the Board concluded that a majority of eligible employees in the unit who cast valid ballots did not desire to be represented for the purpose of collective bargaining by the petitioner. Therefore, the petition was dismissed. (C-5980, 2/14/11)

ON TIME AMBULETTE. Following the results of a secret ballot election under the State Employment Relations Act (SERA), the Board concluded that a majority of eligible employees in the unit who cast valid ballots did not desire to be represented for the purpose of collective bargaining by the petitioner. Therefore, the petition was dismissed. (CU-6020, 2/14/11)

METROPOLITAN SUBURBAN BUS AUTHORITY, (d/b/a MTA LONG ISLAND BUS). Following receipt of a report and recommendation from the Director of Conciliation (Director) regarding a petition for interest arbitration filed by the Transport Workers Union Local 252, AFL-CIO (TWU) under §209.5 of the Public Employees’ Fair Employment Act (Act) and §205.15 of the Rules of Procedure (Rules) with respect to an impasse in contract negotiations between TWU and the Metropolitan Suburban Bus Authority (d/b/a MTA Long Island Bus) (MSBA), the Board certified that a voluntary resolution of the contract negotiations between TWU and MSBA cannot be effected and, therefore, the impasse involving the parties was referred to a public interest arbitration panel. (TIA2010-035, 3/1/11)

CITY OF ALBANY. Following the results of a secret ballot election, the Board concluded that a majority of eligible employees in the unit who cast valid ballots did not desire to be represented for the purpose of collective bargaining by the petitioner. Therefore, the petition was dismissed. (C-6019, 5/2/11)

NIAGARA FRONTIER TRANSPORTATION The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing a unit placement petition filed by the International Longshoremen’s Association, Local 2028 (Local 2028) seeking to remove a title from one bargaining unit and placed in Local 2028’s unit. Local 2028’s petition was filed approximately 11 months after the at-issue position had been placed in the other unit pursuant to a decision by an Administrative Law Judge (ALJ) granting a unit placement petition filed by another employee organization. Local 2028 asserted that the earlier petition had been processed to completion without its knowledge and participation. The Board concluded that Local 2028’s allegations were not sufficient to warrant the processing of a unit placement petition for the removal of the title from the other unit. However, the Board emphasized that a “different set of alleged facts might have led us to a reach a different conclusion. For example, in a case in which a unit placement was based upon an intentional failure of a party and/or parties to disclose the identity of another employee organization claiming to represent the at-issue position, or that may be affected by the petition, might warrant the processing of a unit placement petition to remove the position from one unit and place it in another.”

Practice tip

This decision highlights the pleading obligations in unit clarification/unit placement cases. Our Petition for Unit Clarification and/or Unit Placement form requires a petitioner to identify any currently recognized or certified employee organization(s) which may be affected by this petition, and to describe the negotiating unit(s) which may be affected by the petition. In addition, §201.5(c)(6) of our Rules of Procedure (Rules) mandates a petitioner seeking unit clarification or placement to set forth in its petition “the name and address of any other employee organization which claims to represent the position.” (44 PERB ¶3028, C-1287, 8/19/11)

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Management / Confidential

NO RECENT MANAGEMENT / CONFIDENTIAL BOARD DECISIONS.

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Improper Practices

BROOKLYN EXCELSIOR CHARTER SCHOOL AND BUFFALO UNITED CHARTER SCHOOL. The Board consolidated for decision three representation cases involving two charter schools to resolve related issues under the Public Employees’ Fair Employment Act (Act) and the New York Charter Schools Act of 1998 (Charter Schools Act). The three issues were whether a) PERB had jurisdiction over charter schools created and managed in conjunction with a for-profit business pursuant to the Charter Schools Act; b) whether PERB was preempted by the National Labor Relations Act (NLRA) from hearing and determining questions of representation involving such charter schools; and c) whether PERB had the statutory authority under the Charter Schools Act to designate charter school employees as managerial and/or confidential pursuant to §201.7 of the Act. As part of its deliberations, the Board heard oral argument from the parties, and considered the arguments contained in five amicus briefs.

Based upon the clear and unambiguous provisions of the Charter Schools Act, the Board held that it had jurisdiction over the two charter schools although they were created and are managed in conjunction with a private Michigan charter school management company. The Board rejected the argument that each charter school was a component of a joint employer with the private Michigan company. Following a careful examination of the provisions of the Charter Schools Act, the Board found that that statute explicitly and implicitly makes the Act applicable to every New York charter school regardless of whether the charter application was filed in conjunction with a business and whether the school is managed in conjunction with that business. The Board also found that New York charter schools are “political subdivisions” as that phrase is utilized in §2.2 of the NLRA. Finally, the Board concluded that the Charter Schools Act did not grant the agency the authority to make managerial or confidential designations under §201.7 of the Act. In reaching that conclusion, the Board compared the Charter Schools Act with other state laws that created public benefit corporations that expressly provides that employees of those corporate entities may be designated under §201.7 of the Act. (C-5672, E-2429 and C-5868, 2/14/11)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed a decision of an ALJ finding that the Board of Education of the City School District of the City of New York violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it unilaterally modified a past practice by reducing the number of annual parking permits issued to Local 891-represented unit members, and by changing the method of distribution of the permits. The Board held that free parking is a mandatory subject of negotiations because it is an economic benefit to the employees and that the distribution of parking permits is also mandatorily negotiable. It also affirmed the ALJ’s conclusion that the District unilaterally reduced the number of parking permits issued to Local 891-represented unit members and changed the existing practice of distributing parking permits upon request to unit members. (U-28706, 2/14/11)

CITY OF NEW ROCHELLE. The Board affirmed a decision of an ALJ, concluding that the employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred exclusive bargaining unit work to employees in another bargaining unit. In reaching its decision, the Board rejected the argument that a stipulation resolving a prior improper charge deprived the agency of jurisdiction to decide the present charge. The Board affirmed the ALJ’s conclusion that the settlement agreement did not grant PBA unit members the right to exclusively perform at issue, but made them eligible for such work and set forth the terms and conditions applicable to perform the work. The Board also rejected a duty satisfaction defense premised upon the terms of the management rights clause in the parties’ agreement. (U-26722, 2/14/11)

COUNTY OF SUFFOLK. The Board granted motions by the Police Conference of New York and the Suffolk County Police Conference to file amicus briefs with respect to exceptions from an ALJ decision dismissing a charge alleging that the County of Suffolk violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred supervisory police duties previously performed on the Long Island Expressway and Sunrise Highway by the members of the Supervisor Officers’ Association of the Police Department of the County of Suffolk.

Practice Tip

This decision is reflective of the Board’s view that amicus briefs can be valuable during consideration of pending exceptions. (U-28610, 3/1/11)

TOWN OF FISHKILL. The Board affirmed a decision of an ALJ dismissing a portion of an improper practice charge filed by PBA alleging that the Town of Fishkill (Town) violated §§209-a.1(d) and (e) of the Public Employees’ Fair Employment Act (Act) when the Town changed the tours of duty and work schedules of two PBA officers thereby reducing their total weekly hours of work. The Board rejected, as meritless, the PBA’s assertion that the ALJ misconstrued the allegations of the charge with the Board citing to the specific allegations of the charge. The Board also rejected PBA’s claim that the ALJ erred in her conclusion regarding the number of hours worked by the two PBA officers noting that the evidence presented concerning the respective length of tours and workweeks was incomplete and confusing, at best. Finally, the Board affirmed the ALJ’s conclusion that the Town had satisfied its duty to bargaining under the Act. Due to the fact that the relevant contractual terms could reasonably be interpreted to have more than one meaning, the Board considered parol evidence in the record in determining that the Town satisfied its duty to negotiate the at-issue subject. (U-27331, U-27568, 5/2/11)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS (ZARINFAR). The Board affirmed a decision by the Director of Public Employment Practices and Representation (Director) dismissing an amended improper practice charge filed by Zarinfar alleging that the Board of Education of the City School District of the City of New York (District) violated §§209-a.1(a), (b), (c) and (d) of the Public Employees’ Fair Employment Act (Act) and that the United Federation of Teachers (UFT) violated §§209-a.2(b) and (c) of the Act.

After granting all reasonable inferences to the facts alleged in the amended charge, the Board concluded that Zarinfar failed to allege sufficient facts which, if proven, would have demonstrated a violation of the Act by the District or UFT. In reaching its determination the Board noted that it lacked jurisdiction to determine Zarinfar’s allegation that the District took adverse action against him because of his race, national origin and age, or because he reported alleged discriminatory remarks by a co-worker. (U-30336, 5/2/11)

UNITED FEDERATION OF TEACHERS AND THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK (EUGENIA PINKARD). The Board dismissed exceptions filed by Pinkard based upon documentation she submitted demonstrating that she did not timely serve her exceptions upon UFT and the District pursuant §213.2(a) of the Rules of Procedure (Rules). In the alternative, the Board denied Pinkard’s exceptions on the merits noting that PERB does not have authority to determine alleged violations of Education Law §3020-a, or alleged violations of the terms of an unexpired agreement. (U-28996, 5/2/11)

COUNTY OF ONTARIO AND ONTARIO COUNTY SHERIFF. The Board rejected the Joint Employer’s contention that it had a right to file exceptions to an ALJ’s interim decision denying its motion to dismiss a charge, without the necessity of seeking leave to file exceptions from the Board pursuant to § 212.4(h) of the Rules of Procedure (Rules). The Board reached its conclusion based upon wellestablished precedent requiring a party to seek permission to file exceptions from interim decisions and rulings pursuant to §212.4(h) of the Rules. Nevertheless, the Board treated the Joint Employer’s pleading as a motion for leave to file exceptions and concluded that the Joint Employer failed to demonstrate extraordinary circumstances. Pursuant to §205.5(d) of the Public Employees’ Fair Employment Act (Act), PERB has exclusive jurisdiction to determine whether an employer has engaged in an improper practice in violation of §209-a.1 of the Act. The fact that a notice of claim was served asserting an alternative motivational theory underlying the alleged retaliation did not deprive PERB of jurisdiction to hear the pending charge, nor did it constitute a waiver of jurisdiction. The Board noted, however, that although the pursuit of ancillary litigation may not deprive of PERB of jurisdiction or constitute a waiver, the results of such litigation may, in certain circumstances, form the basis for a collateral estoppel defense to a charge pending at PERB.

Practice Tip

Practitioners are reminded that under Board precedent, motions for leave to file exceptions are very rarely granted due to the strict standard requiring a movant to demonstrate extraordinary circumstances. This high standard is applied by the Board based upon the view that it is far more efficient to await the final disposition of the merits of a charge before examining interim determinations and to avoid unnecessary delays in the processing of improper practice charges. (U-30353, 5/2/11)

CITY OF RYE The Board affirmed a decision of an Administrative Law Judge (ALJ) to conditionally dismiss an improper practice charge and defer to the parties’ grievance procedure, subject to a motion to reopen pursuant to New York City Transit Authority (Bordansky), 4 PERB ¶3031 (1971). The Board concluded that the provisions of the past practice clause in the parties’ agreement might be an arguable source of right to the charging party but they also might support the respondent’s affirmative defenses of duty satisfaction and waiver. (44 PERB ¶3022, U-29126, 6/20/11)

STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK AT STONY BROOK) AND UNITED UNIVERSITY PROFESSIONS (COOPER) The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing a charge for being facially deficient and untimely. The charging party failed to allege sufficient facts to support his claim that his position belonged in the unit represented by United University Professions (UUP) or that UUP violated the Act by failing to represent him. In addition, the charge was untimely because the conduct that formed the basis for the charge took place more than four months before the charge was filed. (44 PERB ¶3021, U-30851, 6/20/11)

COUNTY OF WESTCHESTER The Board affirmed the conditional dismissal of a charge alleging that the County violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it unilaterally began deducting from a unit employee’s biweekly paycheck alleged past overpayments. In two prior decisions, the Board had held that the parties’ maintenance of benefits clause is an arguable source of right warranting a merits deferral. In this case, the Board rejected the charging party’s argument that the Board’s forty-year old merits deferral policy violates the provisions of the Act. (44 PERB ¶3020, U-28836, 6/20/11)

COUNTY OF ERIE The Board affirmed, as modified, a decision of an Administrative Law Judge (ALJ) finding that the County of Erie (County) violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it refused to execute memoranda of agreement negotiated and signed by CSEA and the Erie County Medical Center Corporation (ECMCC). The Board reiterated that Public Authorities Law §§3629 and 3630 demonstrate a clear legislative intent to create a statutory joint employment relationship between the County and ECMCC, but with unique characteristics distinct from those of other joint employers designated under the Act. The Board held that the County violated §209-a.1(d) of the Act by failing to sign the agreements because the County had previously acquiesced in ECMCC conducting separate direct negotiations with CSEA resulting in memoranda of agreement that the County signed and the County failed to inform ECMCC and CSEA that it would not execute future agreements resulting from the direct ECMCCCSEA negotiations. (44 PERB ¶3027, U-28856, 8/19/11)

CHEMUNG COUNTY SHERIFF’S ASSOCIATION, INC. The Board reversed a decision of an Administrative Law Judge (ALJ) that had found that the Chemung County Sheriff’s Association, Inc. (Association) violated §209-a.2(b) of the Public Employees’ Fair Employment Act (Act) when it sought interest arbitration of a nonarbitrable proposal under §209.4(g) of the Act. The Board held that the joint employer’s second amended charge, which alleged for the first time that the Association’s General Municipal Law (GML) §207-c hearing proposal was nonarbitrable under §209.4(g) of the Act, was untimely because it did not relate back to the joint employer’s original claim challenging the mandatory nature of the proposal under the Act. Finally, the Board held that the Association’s GML §207-c hearing proposal to permit a hearing officer to issue a binding decision, subject to review by the courts under CPLR Article 78, was mandatory under City of Watertown v. New York State Public Employment Relations Board, 97 NY2d 73, 33 PERB ¶7007 (2000). (44 PERB ¶3026, U-29007, 8/19/11)

NEW YORK CITY TRANSIT AUTHORITY The Board affirmed the decision by an Administrative Law Judge (ALJ) dismissing an improper practice alleging that the employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) by transferring the performance of unit work to nonunit employees. Following the Board’s review of the record, it affirmed the ALJ’s findings of fact and conclusion that unit employees never performed the at-issue work exclusively. (44 PERB ¶3025, U-27583, 8/19/11)

COUNTY OF TOMPKINS AND TOMPKINS COUNTY SHERIFF AND TOMPKINS COUNTY DEPUTY SHERIFF’S ASSOCIATION, INC. The Board affirmed the dismissal of a charge by the Tompkins County Deputy Sheriff’s Association, Inc. (Association), which alleged that the joint employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) by submitting to interest arbitration a proposal to exclude all unit employees not on the payroll at the time of contract ratification and/or the date of an interest arbitration award from receiving retroactive payments of wages and benefits. Although a demand for retroactivity of wages and benefits is generally a mandatory subject of negotiations under the Act and arbitrable under §204.9(g) of the Act, the Association asserted that the joint employer’s proposal was prohibited based upon the rationale in the Appellate Division, Third Department’s decision in Baker v Board of Education, Hoosick Falls Central School District, 3 AD3d 678, 37 PERB ¶7502 (3d Dept 2004). In that decision, the appellate court concluded that the particular facts alleged in a plenary action were sufficient to state a claim of a breach of the duty of fair representation based upon the employee organization’s alleged failure to provide any representation to the plaintiffs, who had been excluded from receiving retroactive salary increases under a negotiated agreement. The Board noted that in reaching its decision, the Appellate Division was obligated to grant all reasonable inferences to the factual allegations of bad faith and arbitrariness made in the complaint. Therefore, the Board found that the Hoosick Falls decision does not stand for the substantive proposition that parties are prohibited from proposing the exclusion of one group of employee from a negotiated retroactive salary increase or other benefits.

In its decision, the Board also resolved exceptions and cross-exceptions to the ALJ’s conclusions with respect to the arbitrability of various Association proposals under §209.4(g) of the Act. The Board concluded that the Association’s mandatory on-call and General Municipal Law §207-c proposals were nonarbitrable under §209.4(g) of the Act because they were unitary demands that included inseparable nonarbitrable components under §209.4(g) of the Act. The Board emphasized that the application of the unitary demand principle to disputes under §209.4(g) of the Act is necessitated by the Legislature’s public policy choice of dividing the subject matter of proposals for deputy sheriffs into two classes with distinct impasse procedures. The Association’s health insurance buy-out, rate of pay and overtime proposals were found to be arbitrable because they are directly related to compensation. However, the Board found that the Association’s proposals concerning union leave, road patrol schedules, and clothing were nonarbitrable under §209.4(g) of the Act. (44 PERB ¶3024, U-28437, U-28483, 8/19/11)

COUNTY OF ORANGE AND SHERIFF OF ORANGE COUNTY AND ORANGE COUNTY DEPUTY SHERIFF’S POLICE BENEVOLENT ASSOCIATION, INC. The Board reaffirmed that a demand is directly related to compensation, and therefore arbitrable under §209.4(g) of the Public Employees’ Fair Employment Act (Act), when its sole, predominant or primary characteristic is a modification in the amount or level of compensation. In making such a determination, the Board compares the proposal with the lists of subjects specifically identified by the Legislature in §209.4(g) of the Act. The Board, however, reversed the decision in Putnam County Sheriff’s Dept PBA, Inc., 38 PERB ¶3031 (2005), to the extent it held that a proposal seeking a change in the aggregate amount or level of compensation received by unit members from the nonuse of sick leave is nonarbitrable under §209.4(g) of the Act. The Board concluded that the primary characteristic of such a demand is the monetization of sick leave, a compensatory benefit ordinarily unavailable to public employees. In addition, the Board reversed Sullivan County Patrolmen’s Benevolent Association, 39 PERB ¶3034 (2006) to the extent it concluded that a proposal seeking to permit the conversion of overtime compensation into compensatory leave and to permit the subsequent remonetization of that leave back into cash or to be applied to health insurance is nonarbitrable because it relates only to “potential” compensation.

The Board held that union proposals in the present cases seeking to permit the conversion of accumulated unused leave time into cash at the time of separation from service were arbitrable under §209.4(g) of the Act because each seeks a form of deferred compensation. However, the Board found that a proposal to increase the amount of compensatory leave time that can be accumulated is nonarbitrable. Finally, it found a proposal to require an unpaid leave of absence to run currently with leave under the Family Medical Leave Act was nonarbitrable. It reached the same conclusion concerning a unitary demand involving overtime, flex time and scheduling.

Practice tip

The practical impact of the distinction drawn in §209.4(g) of the Act between arbitrable and nonarbitrable subjects might lead parties to choose to segregate arbitrable subjects from the nonarbitrable in their initial proposals or to sever them during the course of negotiations. While such an approach is not obligatory under §209.4(g) of the Act, it can help avoid unnecessary delays in the issuance of interest arbitration awards and fact-finding reports following an impasse. In contrast, placing arbitrable and nonarbitable subjects into a single demand creates the high risk that the demand will be treated as a nonarbitrable unitary demand. (44 PERB ¶3023, U-28693, U-28738, 8/19/11)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO (GRASSEL) The Board treated the purported exceptions of the charging party to an interim ruling by an Administrative Law Judge (ALJ) as a motion for leave to file exceptions pursuant to §212.4(h) of the Rules of Procedure (Rules) and denied the motion on the grounds that the charging party failed to demonstrate extraordinary circumstances. In its decision, the Board warned the charging party that he may face future sanctions if he continues to file meritless exceptions and motions with the Board. (44 PERB ¶3034, U-30052, U-20189, 9/26/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO A motion by CSEA, pursuant to §204.4(a) of the Rules of Procedure (Rules), for an expedited determination of a negotiations issue raised in an improper practice charge filed by the County of Monroe (County) was denied. The Board concluded that the factual and legal issues raised by the County’s charge should be fully addressed by the parties before an Administrative Law Judge (ALJ) prior to the issues being presented in exceptions to the Board.

Practice tip

The procedure set forth in §204.4(a) of the Rules was established primarily to create a means for a party to seek an expedited determination concerning whether a particular proposal is mandatory, permissive or prohibited. (44 PERB ¶3033, U-31129, 9/26/11)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK (RANNIE) The Board denied exceptions to a decision by the Director of Public Employment Practices and Representation (Director) dismissing an amended charge, which had alleged that the Board of Education of the City School District of the City of New York (District) violated §209-a.1(a) of the Public Employees' Fair Employment Act (Act). Following receipt of the exceptions, the charge party was informed that the exceptions were deficient, pursuant §213.2 of the Rules of Procedure, because they were not accompanied by proof of service upon the District. Although granted additional time to do so, the charging party did not submit such proof resulting in a dismissal of her exceptions. (44 PERB ¶3029, U-31140, 9/26/11)

BALDWINSVILLE POLICE BENEVOLENT ASSOCIATION AND VILLAGE OF BALDWINSVILLE The Board held that that a General Municipal Law (GML) §207-c proposal that would require a continued receipt of benefits pending a hearing and determination is mandatorily negotiable because the proposal seeks a contractual codification of a unit member’s constitutionally protected property right of continued GML §207-c benefits, which can not be terminated without due process. The Board also found that an employer’s proposal to expand the scope of an antidiscrimination clause in the parties’ expired agreement is mandatory. Contrary to the PBA’s argument, the employer’s proposal did not propose a contractual waiver of the right to file improper practice charges under the Public Employees’ Fair Employment Act (Act) or the right to pursue discrimination and retaliation claims under federal and state laws in forums other than the negotiated grievance procedure. Therefore, the Board found the case law related to such waivers to be irrelevant to determining the negotiability of the employer’s proposal. Finally, the Board found that a proposal to limit the employer’s authority to assign work to an employee at work to be nonmandatory. (44 PERB ¶3031, U-29453, U-29481, 9/26/11)

COUNTY OF MADISON and MADISON COUNTY SHERIFF AND MADISON COUNTY DEPUTY SHERIFF’S POLICE BENEVOLENT ASSOCIATION, INC The Board concluded that a sick leave proposal to increase the accumulation of sick leave without a modification in the overall compensation for unit members is nonarbitrable under §209.4(g) of the Public Employees' Fair Employment Act (Act). The Board reached the same conclusion concerning a suspension without pay proposal. While the latter proposal would have changed the amount or level of compensation of an employee suspended without pay, the issue of compensation in the proposal was inextricably intertwined with the contractual disciplinary procedures, a nonarbitrable subject under §209.4(g) of the Act. (44 PERB ¶3035, U-29872, U-29926, 9/26/11)

LIVINGSTON COUNTY COALITION OF PATROL SERVICES The Board found that an employee organization violated §209-a.2(b) of the Public Employees’ Fair Employment Act (Act) when it refused to execute a final agreement containing the same terms set forth in a tentative agreement, which had been executed and ratified by the parties. In reaching its decision, the Board reversed the conclusion of the Administrative Law Judge (ALJ) that there had not been a meeting of the minds between the parties concerning one of the many cosmetic modifications in the tentative agreement made by the employer representative. The Board noted that the employee organization failed to present evidence during the hearing explaining why it had originally proposed the same at-issue modification in its initial negotiation proposal. (44 PERB ¶3036, U-29244, 9/26/11)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFLCIO (MORRELL) The Board affirmed the dismissal of two improper practice charges filed against the United Federation of Teachers, Local 2 AFT, AFL-CIO (UFT) claiming that UFT violated its duty of fair representation based upon its delays in responding to her letters (which she labeled as grievances) and in handling the contract grievances it subsequently filed on her behalf. The Board affirmed the conclusion of the Administrative Law Judge (ALJ) that UFT’s relatively short delay in responding to the charging party was the direct result of confusion caused by her letters. In addition, the Board found UFT’s handling of the two contract grievances was well-within the broad range of reasonable discretion granted to employee organizations under the Public Employees’ Fair Employment Act (Act). (44 PERB ¶3030, U-30015, U-30016, 9/26/11)

DEER PARK UNION FREE SCHOOL DISTRICT The Board reversed the decision of an Administrative Law Judge (ALJ) and dismissed a charge alleging that the employer violated §209-a.1(e) of the Public Employees’ Fair Employment Act (Act) when it failed to grant vertical step increments on September 5, 2008. The Board reached its conclusion because there was no evidence demonstrating that the expired agreement imposed upon the employer a contractual obligation to advance unit members a vertical step or make payment for such advancement on September 5, 2008. (44 PERB ¶3032, U-28842, 9/16/11)

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Declaratory Rulings

NO RECENT BOARD DECLARATORY RULINGS.

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Strikes

NO RECENT STRIKE BOARD DECISIONS.

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Local Procedures

NO RECENT LOCAL PROCEDURES DECISIONS.

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Other Matters

NO RECENT OTHER MATTERS DECISIONS.

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Decision Summaries of the Office of Public Employment Practices and Representation


Representation

SOUTH BUFFALO CHARTER SCHOOL INSTRUCTIONAL STAFF ASSOCIATION AND SOUTH BUFFALO CHARTER SCHOOL. The title of Instructional Coach was deemed a policy maker based on the encumbents’ participation in the School’s Leadership Team. The Team, comprised of administrators, meets regularly to discuss curriculum, personnel matters, labor matters and the day-to-day direction of the school. (ALJ Doerr, CP-1234, 1/13/11)

ALBANY POLICE BENEVOLENT ASSOCIATION AND CITY OF ALBANY AND ALBANY POLICE OFFICERS UNION, LOCAL 2841, COUNCIL 82, AFSCME, AFL-CIO. The Director dismissed election objections as they did not establish wholesale postal failure and did not resolve a challenge to a ballot as it was not dispositive. (Director Klein, C-6019, 2/8/11)

MONROE COUNTY PROBATION ASSOCIATION, COUNTY OF MONROE AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, ASFCME, AFL-CIO. A petition filed by the Monroe County Probation Association seeking to fragment the probation officer titles from the unit of County employees currently represented by CSEA, and to represent those titles in a separate unit, was dismissed. Probation officers may carry firearms with appropriate training and certifications, and a minority of probation officers execute warrants, perform search and seizures, and make arrests, as authorized by their responsibilities of monitoring and supervising probationers, or as support in collaborative law enforcements efforts as authorized by their peace officer status. Such work does not, however, meet the criteria for fragmentation as a result of engagement in law enforcement duties, since probation officers’ primary duties are investigations and supervision of probationers, not enforcement of the general criminal laws. The claim that fragmentation is warranted based on inadequate representation of the interests of the group was also rejected, where the record established that probation officers have regularly held leadership roles in the unit, and that the diverse interests of unit employees have been addressed in section negotiations, section labor management meetings, and a history of negotiations on issues unique to probation officers. (ALJ Fitzgerald, C-5905, 3/23/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF SUFFOLK AND SUFFOLK COUNTY COMMUNITY COLLEGE AND SUFFOLK COUNTY ASSOCIATION OF MUNICIPAL EMPLOYEES, INC. County’s local action to establish a mini-PERB does not divest state PERB of jurisdiction where a community college is a countysponsored entity and holds joint employer status. Although the county is the sole signatory to the collectively negotiated agreement with the union, that is not dispositive since the college is a separate legal entity and processes and issues paychecks to employees. Joint employer status is also affirmed by the regulatory framework governing the creation and operation of community colleges. (ALJ Cacavas, C-6026, 5/12/11)

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 2028 AND NIAGARA FRONTIER TRANSPORTATION AUTHORITY. The Director dismissed a petition for unit placement because it sought to decertify a position in an existing negotiating unit. (Director Klein, CP-1287, 2/15/11)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF COLUMBIA. An ALJ granted a unit placement petition, placing the seasonal, full-time laborer position in the unit represented by UPSEU. The employees, who worked full-time for approximately four months during the snow and ice season, were needed on a consistent and predictable basis from year to year and were, therefore, public employees. Because these employees, when working, perform the same duties on the same schedule as full-time employees and share the same supervision, non-contractual working conditions and work rules as full-time employees, there is a shared community of interest. (ALJ Burritt, CP-1142, 3/10/11)

DISTRICT COUNCIL 37, AFSCME AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. DC 37’s petition seeking to place 141 District employees who hold the title of School Computer Technology Specialist in the negotiating unit it represents was granted upon the District’s consent. (ALJ Blassman, CP- 1276, 5/9/11)

BARRY BLANCHARD, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND ONONDAGA COUNTY WATER AUTHORITY. The Director dismissed a representation petition because the showing of interest was not on the form required by the Rules and the declaration of authenticity did not comply with the Rules. (Director Klein, C-6059, 6/17/11)

GREECE UNIFORMED FIRE OFFICERS ASSOCIATION AND NORTH GREECE FIRE DISTRICT. A unit of captains and lieutenants employed by the Fire District was found to be most appropriate. The Fire Board’s assertion that captains exercise significant supervisory authority over lieutenants was not supported by the record. Captains do not hire, fire, discipline, evaluate or assign work to lieutenants. What oversight captains exercise is circumscribed by very specific standard operating procedures. (ALJ Doerr, C-6049, 7/18/11)

ADMINISTRATORS ASSOCIATION OF ERIE COMMUNITY COLLEGE, UNITED AUTO WORKERS, LOCAL 3300 AND COUNTY OF ERIE AND ERIE COMMUNITY COLLEGE. The associate vice president of college safety and security was found to be managerial based upon his status as a member of ECC’s senior executive staff and his regular participation in senior executive staff meetings where college-wide policy is discussed and approved. The inclusion of the title in petitioner’s unit is therefore inappropriate and the unit placement petition was dismissed. (ALJ Doerr, CP-1267, 8/23/11)

CAYUGA COMMUNITY COLLEGE FACULTY ASSOCIATION, ADMINISTRATIVE PROFESSIONALS GROUP AND CAYUGA COMMUNITY COLLEGE. An ALJ granted the employer’s application to designate the dean of community education and workforce development as managerial based on her involvement in both short-term and long-term planning for the college and her membership on the six-member executive committee. The uniting positions of both the faculty association and the administrative professionals group were rejected and the unit placement/unit clarification petition was dismissed. (ALJ Burritt, CP-1194 & E-2475, 9/2/11)

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Management / Confidential

EAST QUOGUE UNION FREE SCHOOL DISTRICT. Where front office secretary/senior Account Clerk Typist has confidential relationship to managerial employee in his performance of managerial responsibilities, confidential designation was warranted. (ALJ Cacavas, E-2514, 1/24/11)

SACHEM CENTRAL SCHOOL DISTRICT. The District’s application to designate Kristin Capel-Eden, administrator for personnel, as managerial within the meaning of §201.7(a) of the Act was granted upon consent. (ALJ Maier, E-2516, 2/1/11)

SACHEM CENTRAL SCHOOL DISTRICT. The District’s application to designate Carol Truglio, principal stenographer, as confidential within the meaning of §201.7(a) of the Act was granted upon consent. (ALJ Maier, E-2517, 2/10/11)

The District’s application, seeking to designate Dianne Wilkinson, director of special education, as managerial within the meaning of §201.7(a) of the Act was granted upon the consent. (ALJ Blassman, E-2518, 4/5/11)

TRUMANSBURG CENTRAL SCHOOL DISTRICT. The District’s application to designate Patti Reichert, school district treasurer, and Amy Beckhorn, payroll coordinator, as confidential within the meaning of §201.7(a) of the Act was granted upon consent. (ALJ Carlson, E-2519, 4/26/11)

SOUTH COUNTRY CENTRAL SCHOOL DISTRICT. An ALJ granted an application, on consent, that a clerk typist be designated a confidential employee. (ALJ Maier, E-2524, 8/16/11)

SAG HARBOR UNION FREE SCHOOL DISTRICT. An ALJ granted an application, on consent, that a transportation coordinator be designated a confidential employee. (ALJ Cacavas, E-2525, 8/24/11)

THRALL PUBLIC LIBRARY DISTRICT OF MIDDLETOWN AND WALLKILL. The employer’s application to have a principal account clerk designated a confidential employee was denied because there was no record evidence that the employee acted in a confidential capacity with respect to the negotiation or administration of a collective bargaining agreement or with any non-routine or non-clerical personnel administration matters. (ALJ Burritt, E-2465, 8/29/11)

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Improper Practices

RONALD GRASSEL AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO AND BOARD OF EDUCATION FOR THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ dismissed the charge which alleged that the UFT violated §§209-a.2(a) and (c) of the Act when it withdrew as Grassel’s representative in his Education Law §3020-a disciplinary proceeding. The ALJ found that the UFT did not act arbitrarily, discriminatory or in bad faith when it withdrew as Grassel’s representative, the standard required for such violations. The record showed that NYSUT, which was representing Grassel on behalf of the UFT, withdrew as Grassel’s representative because Grassel sent a letter to the arbitrator in which he made various motions and requests to the arbitrator and refused to rescind that letter upon NYSUT’s request. The ALJ found that, by making motions and requests normally reserved for the assigned attorney, Grassel had failed to cooperate with NYSUT in his representation and had impinged upon the negotiating representative’s rights under the Act to make litigation and trial decisions. (ALJ Blassman, U-29040, 1/10/11)

ROBERT S. BUCKLEY AND STATE OF NEW YORK AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the charge because individuals lack standing to allege a failure to bargain and because the charge did not identify the subsection of the Act allegedly violated. (Director Klein, U-30493, 1/13/11)

KENDALL S. JONES AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND DISTRICT COUNCIL 37, AFSCME, AFL-CIO. The Director dismissed the charge because it neither identifies the subsection of the Act allegedly violated nor identifies when the alleged violation occurred. (Director Klein, U-30480 & U-30481, 1/14/11)

ROCHESTER FIRE FIGHTERS ASSOCIATION, LOCAL 1071, IAFF AND THE CITY OF ROCHESTER. The ALJ found that the Association violated §209-a.2(b) of the Act when it submitted a minimum manning proposal to interest arbitration. That the proposal also sought additional pay for fire fighters when the manning level fell below the number specified in the proposal did not transform into a mandatory subject of bargaining. (ALJ Doerr, U-30053 & U-30096, 1/19/11)

PROFESSIONAL STAFF CONGRESS/CITY UNIVERSITY OF NEW YORK AND CITY UNIVERSITY OF NEW YORK. PSC’s charge, alleging that CUNY violated §209-a.1(a) and (d) of the Act when it unilaterally changed the procedures preliminary to tenure decisions and affecting employee evaluations, was deferred by the ALJ to a pending contractual grievance pursuant to PERB’s merits deferral policy. (ALJ Blassman, U-29652, 1/21/11)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1095, AFL-CIO AND COUNTY OF ERIE AND ERIE COUNTY MEDICAL CENTER CORPORATION. AFSCME’s charge alleging that ECMCC violated the Act when it unilaterally imposed a one-half hour paid lunch was deferred by the ALJ to a pending contractual grievance raising the same issues as pled in the charge. The §209-a.1(a) allegation was not supported by independent factual assertions and was wholly derivative of the subsection (d) allegation. Additionally, the charge pled that the parties’ agreement was not expired therefore, the subsection (e) violation was dismissed. (ALJ Doerr, U-30074, 1/24/11)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1095, AFL-CIO AND COUNTY OF ERIE AND ERIE COUNTY MEDICAL CENTER CORPORATION. AFSCME’s charge alleging that ECMCC violated the Act when it changed the number of vacation days that could be accrued was deferred to a pending contractual grievance raising the same issue. The §209-a.1(a) allegation was not supported by independent factual assertions and was wholly derivative of the subsection (d) allegation. (ALJ Doerr, U-30128, 1/24/11)

PROFESSIONAL FIRE FIGHTERS ASSOCIATION, INC., LOCAL 274, I.A.F.F., AFL-CIO AND CITY OF WHITE PLAINS. The charges, alleging that the City violated §209-a.1 (d) of the Act when it unilaterally required unit employees hired before July 1, 1995 to contribute fifteen percent toward the cost of their health insurance upon retirement, were deferred by the ALJ to pending grievances pursuant to PERB’s merits deferral policy. (ALJ Blassman, U-30274 & U-30275, 1/25/11)

NIAGARA FALLS POLICE CLUB, INC. AND CITY OF NIAGARA FALLS. The City was found by the ALJ to have violated §209-a.1(d) of the Act when it unilaterally implemented an amendment to its residency law that eliminated the provision allowing an employee to be reinstated to his or her former position upon re-establishing residency if the position remains vacant. Contrary to the City’s assertion that residency is a pre-employment job qualification and therefore not mandatorily negotiable, the plain language of the portion of the law eliminated indicates that it applies to current employees. The City’s defense that its actions were consistent with Public Officers Law §30.4(3) was similarly rejected. (ALJ Doerr, U-29287, 1/25/11)

SANJA DRINKS-BRUDER AND NIAGARA FALLS POLICE CLUB, INC. AND CITY OF NIAGARA FALLS. An improper practice charge, alleging that the Police Club violated its duty of fair representation to a member by refusing to support her grievance, was dismissed by the ALJ on the finding that the Police Club made a merits determination on her complaint regarding distribution of overtime, explained its determination to the member and advised that was its final decision. The Club was under no obligation to investigate further when she disputed that finding, particularly when it had no reason to believe the documents it was relying on were insufficient. (ALJ Fitzgerald, U-29551, 1/25/11)

CHARLES JOHNSON AND DANSVILLE SUPPORT STAFF ASSOCIATION AND NEW YORK STATE UNITED TEACHERS. ALJ found that the Association violated its duty of fair representation when the unit president, on her own initiative and for reasons found largely to be specious, withdrew Johnson’s grievance from arbitration – a grievance in which the president had a vested interest. As the charging party alleged a violation of §209-a.2(a) of the Act, the District was not a statutory party and reinstatement of the grievance arbitration was, therefore, not an available remedy. The ALJ ordered that the Association reimburse Johnson for legal fees and expenses associated with suing the District at common law should he choose to do so. The charge against NYSUT was dismissed as NYSUT is not the bargaining agent. (ALJ Doerr, U-29471, 1/26/11)

COUNTY OF MADISON AND MADISON COUNTY SHERIFF AND MADISON COUNTY DEPUTY SHERIFF’S POLICE BENEVOLENT ASSOCIATION, INC. Charges alleging that proposals were improperly submitted to interest arbitration in regard to deputy sheriff unit were each sustained in part by the ALJ. PBA proposals regarding a limitation on the period of unpaid suspensions and sick leave, and County proposal to amend management rights clause, held not to be arbitrable under §209.4(g). The charges were dismissed as to those demands regarding overtime pay and retroactivity of pay, matters which are directly related to compensation and thus arbitrable for deputy sheriffs. (ALJ Fitzgerald, U-29872 & U-29926, 1/26/11)

TOWN OF ORCHARD PARK AND ORCHARD PARK POLICE BENEVOLENT ASSOCIATION, INC. The Director dismissed the charge because public employers lack standing to allege a union’s breach of the duty of fair representation and because the filing of a grievance and a civil lawsuit are not negotiations within the meaning of the Act. (Director Klein, U-30667, 2/2/11)

SUFFOLK COUNTY SUPERIOR OFFICERS ASSOCIATION OF THE POLICE DEPARTMENT OF THE COUNTY OF SUFFOLK AND COUNTY OF SUFFOLK. An ALJ deferred a charge to the parties’ grievance and arbitration provisions of their collective bargaining agreement. The charge alleged that the County violated the Act by changing the method of payment of salaries and wages for unit members resulting in a reduction in pay. (ALJ Maier, U-30570, 2/3/11)

NEW YORK STATE NURSES ASSOCIATION AND COUNTY OF ERIE AND ERIE COUNTY MEDICAL CENTER CORPORATION. Pursuant to the Board’s decision in Herkimer County BOCES, the ALJ deferred a charge to the grievance and arbitration procedure contained in the parties’ current agreement as the charging party filed a grievance based upon the same facts as set forth in the charge. (ALJ Doerr, U-30559, 2/4/11)

LANCASTER STEWART AND PUBLIC EMPLOYEES FEDERATION. The Director dismissed the charge because it did not arguably establish a violation of the Act. An amendment was also dismissed because it was unsworn. (Director Klein, U-30693, 2/4/11)

BETHLEHEM POLICE BENEVOLENT ASSOCIATION AND TOWN OF BETHLEHEM. The Town violated §209-a.1(d) of the Act when it refused the PBA’s demand to negotiate the impact of a vacancy created by a promotion. The PBA’s demand concerned payment based on staffing levels, a mandatory subject of bargaining. (ALJ Comenzo, U-29785, 2/9/11)

COUNTY OF TOMPKINS AND TOMPKINS COUNTY SHERIFF AND TOMPKINS COUNTY DEPUTY SHERIFF’S ASSOCIATION, INC. Improper practice charges were filed by the joint employer and the Association alleging that certain proposals had been improperly submitted to interest arbitration. The employer's charge was dismissed in part and sustained in part, as the ALJ concluded that certain Association proposals were related to compensation and, thus, arbitrable, while others were not. The Association’s charge was dismissed in its entirety, as the sole employer proposal at issue was found to be arbitrable. (ALJ Carlson, U-28437 & U-28483, 2/9/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF ST.LAWRENCE. The County was found to have violated §209-a.1(d) of the Act when it announced it would cease its 24-year practice of reimbursing employees upon retirement for Medicare Part B premiums. The parties stipulated that the practice was of a long duration, that it continued uninterrupted and that it was well known to both County management and County employees. The County’s argument that the resolution authorizing the reimbursement is recognized as being temporary in nature and subject to repeal or amendment and that employees, therefore, could have no expectation that it would continue, was rejected. It is the action of the employer and not the nature of the enabling legislation that we look to in determining the existence of an enforceable past practice. (ALJ Doerr, U-29935, 2/10/11)

RENEE T. SMITH AND HARTFORD CENTRAL SCHOOL BUS DRIVERS UNION AND HARTFORD CENTRAL SCHOOL DISTRICT. The Director dismissed a charge because it was untimely, beyond PERB’s jurisdiction as concerning internal employee organization affairs and because there were no facts to arguably establish arbitrary, discriminatory or bad faith conduct. (Director Klein, U-30754, 2/15/11)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF COLUMBIA. An ALJ found that the County violated §209-a.1(d) of the Act when it transferred the bargaining unit work of directly supervising overtime snow and ice removal at County facilities to a newly created non-bargaining unit position and when it discontinued the assignment of a County vehicle, used for commuting purposes, to a unit employee. (ALJ Burritt, U-28218, 2/15/11)

DONNA MCGUIRE AND MONROE-WOODBURY TEACHERS ASSOCIATION. An ALJ dismissed, due to timeliness, a charge alleging that the Monroe-Woodbury Teachers Association violated Section 209-a.2(c) of the Act by refusing to file a grievance on her behalf to challenge the decision of the Monroe-Woodbury Central School District to pay her $30 per hour for early intervention services provided to students. (ALJ Burritt, U-28216, 2/16/11)

SOLVAY SCHOOL EMPLOYEES UNION AND SOLVAY UNION FREE SCHOOL DISTRICT. An ALJ dismissed as untimely a charge alleging that the District violated the Act when it declined to compensate a unit employee for unused accrued vacation upon his retirement. The Union knew, well before the statute of limitations ran out, what the District’s final position was, and the Union’s request that the District put that position in writing did not extend the limitations period. (ALJ Burritt, U-28225, 2/24/11)

ALBANY POLICE OFFICER’S UNION, LOCAL 2841, LAW ENFORCEMENT OFFICERS UNION COUNCIL 82, AFSCME, AFL-CIO AND CITY OF ALBANY. The Director reopened an improper practice charge that had been deferred to arbitration because the arbitrator did not decide the issue. (Director Klein, U-29881, 3/1/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND VILLAGE OF BATH. The Village was found to have violated the Act by refusing to execute a collective bargaining agreement submitted by CSEA which contained identical language as the tentative agreement its negotiator had executed. Although the terms used in negotiations caused confusion as to CSEA’s proposal, the evidence was sufficient to put the Village’s negotiator on notice that his understanding was not consistent with CSEA’s, and the terms of the tentative agreement were explicit. Thus the negotiator’s misunderstanding was a unilateral mistake and the employer was bound to the agreement.

Although the MOA was subject to ratification by the Village Board, that condition was found to have been satisfied or waived, despite the fact that the terms presented to the Village Board were other than those agreed to in the MOA, since ratification is not required under the Act but is a condition that may be waived by virtue of the negotiator’s conduct. CSEA’s request that the Village be ordered to implement the terms of the agreement was denied, however, since PERB has no jurisdiction to enforce agreements nor to find that the Village waived its right to legislatively approve the funds for implementation.

The Village was also found to have violated the Act by its issuance of statements to each unit employee purporting to contain their wages and benefits, and requiring the employees to respond, shortly after CSEA filed grievances over the disputed wage issues. This direct dealing with the employees was found to constitute interference with CSEA’s role as exclusive bargaining representative and a violation of the employees’ right to be represented by CSEA. An additional allegation that the Village repudiated the grievance procedure in the agreement was dismissed. (ALJ Fitzgerald, U-29442, 3/4/11)

ISLAND PARK ADMINISTRATORS’ ASSOCIATION AND ISLAND PARK UNION FREE SCHOOL DISTRICT. By decision dated March 9, 2010, the administrative law judge deferred further processing of the charge subject to a motion to reopen in the event PERB’s deferral standards were not met. On January 24, 2011, Charging Party moved and, despite the District’s opposition, the Director reopened the charge because the arbitrator denied the grievance as there was no agreement that only bargainingunit personnel would be appointed to Summer School Administrator positions. (Director Klein, U-29428, 3/11/11)

TOWN OF WALLKILL POLICE BENEVOLENT ASSOCIATION, INC. AND TOWN OF WALLKILL. An ALJ found that the Town violated §209-a.1(d) of the Act when it unilaterally adopted a policy and procedure for the termination of police department employees after a one-year absence due to illness or injury, pursuant to Civil Service Law §§71 and 73. (ALJ Burritt, U-28158 & U-28355, 3/14/11)

LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS AND CITY OF YONKERS. An ALJ found that the City violated §209-a.1(d) of the Act when it directed unit members who reside outside the City to return the Cityowned vehicles that had been provided to them for commuting purposes. (ALJ Carlson, U-28825, 3/16/11)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF RENSSELAER. An ALJ conditionally dismissed and deferred to the contractual grievance procedure a charge alleging a violation of §209-a.1(d) of the Act when the County transferred the duties of a “wing man” to the deputy county engineer and the highway superintendent, neither of whom are members of UPSEU’s unit. (ALJ Burritt, U-30710, 3/17/11)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). An ALJ dismissed a charge alleging the State of New York Division of State Police violated §§209-a.1(a) and (c) of the Public Employees’ Fair Employment Act (Act) when it reassigned Major Ellwood A. Sloat, Jr., allegedly in response to his filing of a contract grievance. The ALJ found that the State was not improperly motivated when it removed Sloat from the Academy and reassigned him to a position in Internal Affairs. (ALJ Carlson, U-28233, 3/18/11)

WESTCHESTER COUNTY DEPARTMENT OF PUBLIC SAFETY POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF WESTCHESTER. An ALJ deferred a charge which alleged that the County unilaterally imposed a debt recoupment scheme on one of the PBA’s members. Since the parties’ agreement provided a reasonably arguable source of right to the PBA by virtue of a “maintenance of standards” clause, the charge was deferred to the parties’ grievance procedure pursuant to New York City Transit Authority (Bordansky). (ALJ Wlasuk, U-28836, 3/23/11)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICPAL EMPLOYEES, COUNCIL 66, LOCAL 1635, AFLCIO AND CITY OF ROCHESTER. The charge alleged a violation of §§209-a.1(a) and (d) of the Act. The (a) specification was unsupported by independent facts and was wholly derivative of the (d). AFSCME complained of the unilateral imposition of new job duties, which specification it withdrew following the conference. The charge also complained of the transfer of dispatching duties which was the same issue raised in the grievance proceeding. Accordingly, the charge was deferred to the parties’ grievance and arbitration procedure under their current collectively negotiated agreement pursuant to the Board’s decision in Herkimer County BOCES. (ALJ Doerr, U-30602, 3/23/11)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ dismissed, for failure of proof, the UFT’s allegations in Case No. U-27791 that the District violated §§209-a.1(a), (b), (c) and (d) of the Act when it excluded UFT representatives from meetings, threatened to close PS 304 in retaliation for filing grievances, sought to pressure the chapter leader into holding a vote and threatened to eliminate extra pay assignments if a vote was not approved. The ALJ also dismissed for failure of proof the allegations in the remaining cases that the District violated §§209-a.1(a) and (d) of the Act when PS 304’s principal attempted to interfere with the UFT’s role as negotiating agent and discourage the filing of grievances by announcing that a private organization was available to mediate disputes; when PS 304’s principal changed the students assigned to the chapter leader; when PS 304’s principal issued two disciplinary letters to the chapter leader and when PS 304’s principal gave the chapter leader an unsatisfactory annual performance rating in retaliation for union activity. (ALJ Blassman, U-27791, U-28139, U-28340, U-28366 & U-28670, 3/24/11)

TRANSPORT WORKERS UNION, LOCAL 252, AFL-CIO AND MTA LONG ISLAND BUS COMPANY. One of three allegations in a charge filed by Local 252 was deferred pursuant to PERB’s merits deferral policy over the objection of Local 252. Two of allegations were not deferred because they involved claims that the MTA violated §§209-a.1(a) and (d) of the Act by unilateral imposing rule changes that affected unit employees’ right to participate in grievances and litigation initiated by Local 252. The charge’s allegation that the Authority violated the Act by unilaterally requiring unit employees to notify the Authority if arrested on or off duty was deferred on the merits because it solely involved an alleged unilateral change in violation of §209-a.1(d) of the Act and the agreement afforded an arguable source of right. (ALJ Blassman, U-28754, 3/31/11)

ALBANY POLICE SUPERVISORS’ ASSOCIATION AND CITY OF ALBANY. Failure of respondent to plead the statutory defense set forth in §209-a.1(g) of the Act resulted in a finding that the defense was waived. Jurisdictional deferral defense was dismissed as moot; the arbitration award had issued at the time the record was closed. Jurisdictional dismissal was rejected on a finding that the contract did not act as a source of right to the charging party. Employees have a right under the Act to select their Weingarten representative when called to a meeting or interview where it is reasonably anticipated discipline will result. Charge was, nonetheless, dismissed as there was no record evidence of when the chosen representation would be available and another representative was available at the time of questioning. (ALJ Doerr, U-28339, 4/5/11)

SUFFOLK COUNTY DEPUTY SHERIFFS POLICE BENEVOLENT ASSOCIATION, PARK POLICE UNIT AND COUNTY OF SUFFOLK. An ALJ issued a decision interpreting the provisions of §209.4(i) of the Act, applicable to the Suffolk County Park Police. Pursuant to the terms of this provision, the ALJ held that the County violated the Act by seeking to submit proposals relating to discipline, or the eligibility and assignment to a detail or position, to an interest arbitration panel. The ALJ also held that proposals related to allowing the County to determine whether employees will receive compensatory time in lieu of overtime were not permissibly submitted to interest arbitration. A proposal pursuant to which employees would serve a one year probationary term was arbitrable. (ALJ Maier, U-30077, 4/7/11)

JOSÉ E. VEGA AND CITY OF ALBANY AND AFSCME COUNCIL 66. An ALJ dismissed a charge alleging that the City violated §§209-a.1(a) and (c) of the Act when it transferred Vega to a different work location and suspended him for failing to report to work there. Vega failed to establish involvement in protected activity, a necessary element, and that the City had otherwise interfered with his rights under the Act. That part of the charge alleging that AFSCME violated its duty of fair representation regarding Vega’s transfer and suspension was also dismissed as there was no evidence that AFSCME acted arbitrarily, discriminatorily or in bad faith in representing Vega. Vega had representation at the meeting advising him of his transfer. Vega’s charge was also found premature since AFSCME has 30 days to investigate grievances and Vega filed the charge a mere two work days after receiving his suspension. (ALJ Wlasuk, U-28504, 4/8/11)

RENEÉ MORRELL AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ dismissed two charges filed by Morrell which alleged that the UFT violated §209-a.1(c) of the Act when it failed to file grievances on her behalf and to respond to her letters requesting the filing of such grievances. The record showed that the UFT in fact responded to Morrell’s requests and filed the grievances she requested. The record further showed that, to the extent that a delay occurred in the filing of one of the grievances, the delay was caused by the unclear language in Morrell’s letters requesting assistance and her addressing them to the wrong UFT representative. To the extent that the charge alleged a violation based upon the UFT’s failure to pursue those grievances, the record did not show that the decision was arbitrary, discriminatory or taken in bad faith. (ALJ Blassman, U-30015 & U-30016, 4/12/11)

COUNTY OF JEFFERSON AND JEFFERSON COUNTY SHERIFF AND NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFLCIO, LOCAL 3928, JEFFERSON COUNTY DEPUTY SHERIFF’S ASSOCIATION. Improper practice charges alleging that proposals were improperly submitted to interest arbitration in regard to deputy sheriff unit were each sustained in part. Demands held not arbitrable under §209.4(g) of the Act were: Association proposals regarding physical screening requirements, and sick leave incentives; and County proposals regarding hours of work, sick leave, vacation leave, and discipline. Portions of the charges were dismissed as to the following demands, held arbitrable under §209.4(g): an Association proposal regarding out-of-title sergeant pay and field training officer pay, and a County proposal regarding fringe benefits for employees on GML §207-c. (ALJ Fitzgerald, U-30175 & U-30215, 4/13/11)

HOWARD S. COOPER AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK AT STONY BROOK) AND UNITED UNIVERSITY PROFESSIONS. The Director dismissed the charge as untimely because all alleged acts and omissions occurred more than four months prior to the filing of the charge and because his position was not included in any bargaining unit. (Director Klein, U-30851, 4/13/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO, AND VILLAGE OF HEMPSTEAD. An ALJ deferred a charge to the parties’ grievance procedure under the CBA since the pending grievance raised the same issue as the charge. (ALJ Maier, U-30632, 4/14/11)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF COLUMBIA. An ALJ found that the County violated §209-a.1(d) of the Act when it unilaterally assigned certain maintenance work at the County’s Public Safety Building to nonunit inmates housed there. (ALJ Carlson, U-28527, 4/15/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000 AFSCME, LOCAL 815 ERIE COUNTY SHERIFF’S CORRECTION UNIT 6700, COUNTY OF ERIE AND SHERIFF OF ERIE COUNTY AND TEAMSTERS LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEAMSTERS. The joint employer’s motion to dismiss was granted on a finding that CSEA failed to show that the transferred work was substantially similar to the work performed by unit members. The ALJ adopted the CSEA’s definition of unit work, i.e. care provided by medical aides at the Erie County Correctional Facility, as opposed to the joint employer’s proposed definition; all medical services provided to inmates in the custody of the Sheriff. Evidence that the joint employer never assigned a registered nurse to the facility prior to the at-issue assignment supported the finding of a discernible boundary based upon geographic location. (ALJ Doerr, U-27801, 4/20/11)

BETTY J. LIVELY AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES – EASTERN CORRECTIONAL FACILITY). An ALJ dismissed as untimely a charge alleging that the State violated §209-a.1(g) of the Act when it failed to provide Lively with union representation at a meeting regarding her work performance because it was filed over four months following the date of the meeting. (ALJ Wlasuk, U-29349, 4/21/11)

AMALGAMATED TRANSIT UNION, LOCAL 1342 AND NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC. The charging party’s improper practice charge was deferred to the parties’ grievance arbitration mechanism contained in their expired collective bargaining agreement. (ALJ Doerr, U-30835, 4/22/11)

CHRISTOPHER A. BROICH AND SOUTHAMPTON VILLAGE POLICE BENEVOLENT ASSOCIATION. The Director dismissed a charge alleging a breach of the duty of fair representation because there is no such duty to commence a civil lawsuit absent a practice of doing so. (Director Klein, U-30901, 4/22/11)

LINDA M. TRUESDALE AND LEWISTON-PORTER UNITED EDUCATIONAL EMPLOYEES. The Director dismissed the charge because individuals lack standing to allege breach of a union’s duty owed to other employees and because there were no facts to arguably establish arbitrary, discriminatory or bad faith conduct. (Director Klein, U-30921, 5/2/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, ERIE COUNTY UNIT OF LOCAL 815 AND COUNTY OF ERIE. An improper practice charge, alleging that the County violated the Act when it transferred unit work of determining eligibility for public health insurance benefits to the Bonadio Group, was dismissed. The County’s decision to contract with the certified public accounting firm to determine the income of certain small business applicants was due to the growing complexity of such applications, and was limited to the small percentage of cases referred to it by the medicaid unit supervisor. Although the work had been performed exclusively by unit employees, the performance of the work by certified public accountants and fraud investigators was a change in qualifications, and necessarily a higher level of service, than previously provided.

In balancing the interests of the parties, the County’s interest in insuring the accuracy of its eligibility determinations and prevention of fraud prevails over the minimal loss of work to unit employees. (ALJ Fitzgerald, U-28319, 5/2/11)

ASSOCIATION OF MAHOPAC ADMINISTRATORS AND MAHOPAC CENTRAL SCHOOL DISTRICT. An ALJ found that the District violated §209-a.1(d) of the Act when it unilaterally established an 11:00 a.m. to 8:00 p.m. workday for a high school principal and unilaterally chose the high school principal who would be assigned to the newly established hours of work. (ALJ Burritt, U-28714, 5/4/11)

ROBERT GRAY AND VILLAGE OF HEMPSTEAD AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC. LOCAL 1000, AFSCME, AFL-CIO, LOCAL 882. Where more than four months had passed since an employee’s termination of employment for insubordination, the union’s conduct at an investigatory meeting immediately prior thereto could not form the basis for an improper practice charge since it would be untimely under the Act. Timely allegations regarding the union’s refusal to take the case through grievance and arbitration revealed that the union’s decision was based on its assessment that the case could not be won. As such, even if that assessment was erroneous or negligent, it was not unlawful under the Act. Furthermore, the union’s decision to resolve all outstanding grievances at the time that a collectively negotiated agreement was reached is not violative of the duty of fair representation unless it evidences arbitrariness, discrimination or bad faith. A union’s decision which benefits some members of a unit and disadvantages others is not unlawful unless it was made arbitrarily, discriminatorily or in bad faith. (ALJ Cacavas, U-29597, 5/4/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, WESTCHESTER COUNTY LOCAL 860, WESTCHESTER COUNTY HEALTH CARE CORPORATION UNIT #9201 AND WESTCHESTER COUNTY HEALTH CARE CORPORATION UNIT. An ALJ dismissed a charge due to the failure of the charging party to attend the conference and the failure to respond to a request to submit an affidavit establishing good cause for the failure to attend the conference. The charge was dismissed pursuant to Rule 212.2 of the Board’s Rules of Procedure. (ALJ Maier, U-30687, 5/4/11)

SOUTH GLENS FALLS POLICE BENEVOLENT ASSOCIATION, INC. AND VILLAGE OF SOUTH GLENS FALLS. The ALJ found that the PBA violated §209-a.2(b) of the Act when it submitted a demand for a change in tours of duty that provided for fixed days off. The Village’s demand for reimbursement of training fees for officers who left within one year of being hired was found to be mandatory in nature. (ALJ Doerr, U-29960 & U-29987, 5/5/11)

CITY OF ALBANY AND ALBANY PERMANENT PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 2007 AND LOCAL 2007-A, I.A.F.F., AFL-CIO. City’s proposal to amend the recognition and agency shop provision in the parties’ expired agreement by adding a hold harmless clause was held not to be a mandatory subject of bargaining and ordered to be withdrawn from interest arbitration. The Association’s challenge to the City proposals to amend the provisions regarding usage of comp time was dismissed since the demand sought to amend existing language on the subject, and was converted to a mandatory subject under City of Cohoes. And the challenge that the city’s proposal on sick leave accrual and procedure for use was nonmandatory due to vagueness was dismissed since it was not so vague as to raise a question as to whether the subject matter was mandatorily negotiable.

The City’s charges against the Association challenging its proposals regarding health insurance after retirement were dismissed. The fact that certain unit employees may have retired during the period of negotiations does not make the demand for retiree benefits for current employees nonmandatory. For purposes of arbitrability such persons are “current employees.” (ALJ Fitzgerald, U-30266, U-30267, U-30306 & U-30307, 5/24/11)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). An ALJ dismissed a charge alleging the State of New York (Department of Correctional Services) violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it began requiring that unit members at Mt. McGregor Correctional Facility use a mechanical time clock instead of paper timecards to record time and attendance. The ALJ found that requiring unit members to use a mechanical time clock did not increase employee participation in recordkeeping, but rather constituted the mere substitution of a mechanical device for the manual method of timekeeping that unit members had previously used. (ALJ Carlson, U-28794, 5/25/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, ERIE COUNTY UNIT OF LOCAL 815 AND COUNTY OF ERIE. The County was found to have violated the Act by the transfer of the exclusive work of the CSEA unit title counsel-social services to newly created parttime nonunit positions which were filled by employees who had retired from the full-time unit positions. The County’s argument that it had the right to create additional positions did not relieve it of its obligation to bargain the transfer of that work from unit personnel. Further, its management rights clause language, giving the County the discretion to determine the number of employees necessary to carry out its work, did not constitute a waiver of its bargaining obligation regarding the transfer of unit work. (ALJ Fitzgerald, U-26861, 5/26/11)

LAURENCE SIENA AND PORT CHESTER TEACHERS ASSOCIATION. An ALJ dismissed a charge alleging a violation of §209-a.2(c) of the Act when the Association refused to file a grievance on behalf of a member challenging the failure of the Port Chester-Rye Union Free School District to rotate his assignment to a “team meeting/planning period” mid-way through the 2007-08 school year. The Association’s refusal to file was neither arbitrary, discriminatory nor in bad faith. (ALJ Burritt, U-28173, 5/27/11)

IRA J. SMULYAN AND STATE OF NEW YORK (INSURANCE DEPARTMENT LIQUIDATION BUREAU) AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the charge because the at-issue violation occurred more than four months prior to its filing and because, even if timely, there were no facts to arguably establish a violation of the Act. (Director Klein, U-31050, 6/3/11)

AFSCME N.Y. COUNCIL 66, AND ITS AFFILIATE AFSCME LOCAL 6135, AFL-CIO (CITY OF ROCHESTER EMPLOYEES UNION) AND CITY OF ROCHESTER. Charge alleging a violation of §209-1.1 (a), (c) and (d) of the Act was dismissed. So much of the charge alleging a violation of (d) premised on direct dealing was dismissed for failure to provide any proof on that issue. As to the discrimination and retaliation claims, so much of the charge premised upon protected activity which occurred three to four years prior to the events complained of was dismissed on a finding that the protected activity was too remote in time. In the alternative the act complained of, loss of promotion based upon alleged improper interview questions and anti-union statements, was found not to violate the Act. The alleged questions were not in fact asked and the anti-union statement was found to be a general statement on the effectiveness of unions with no reference to AFSCME and, therefore, not improper. Finally, there was no proof that the aggrieved employee would have received the promotion but for the alleged protected activity. That portion of the charge, as amended, alleging retaliation after the filing of the improper practice charge was similarly dismissed. That the employee was given to-do lists was a reflection of his poor work habits and the need to closely monitor him and not evidence of retaliation. (ALJ Poland, U-29475, 6/14/11)

MICHAEL A. BERTOLONE AND MONROE COUNTY LAW ENFORCEMENT ASSOCIATION AND COUNTY OF MONROE AND MONROE COUNTY SHERIFF. The Director dismissed the charge because there are no facts to arguably establish that the Association’s conduct was arbitrary, improperly motivated or in bad faith. (Director Klein, U-31039, 6/15/11)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO, LOCAL 2012 AND COUNTY OF BROOME AND BROOME COUNTY SHERIFF. The ALJ found that the County violated §209-a.1(d) of the Act when it unilaterally implemented a policy requiring unit employees to submit semiannual gift disclosure statements. The County’s affirmative defense of timeliness was rejected because it argued that a series of legislative, as opposed to executive, actions provided constructive notice to Council 82. The ALJ also found that the gift disclosure requirement was a mandatory subject of bargaining and that the County’s obligation to bargain was not preempted by the General Municipal Law. (ALJ Wlasuk, U-28982, 6/22/11)

LAWRENCE TEACHERS’ ASSOCIATION, NYSUT, AFT, NEA AND LAWRENCE UNION FREE SCHOOL DISTRICT. The ALJ dismissed the Association’s charge, which alleged that the District had violated §209-a.1(d) of the Act when it required high school teachers to register their arrival at the school in the mornings by swiping an electronic identification card against kiosks placed at designated entrances. The ALJ found that, consistent with Newburgh Enlarged City School District, 20 PERB ¶3053 (1987), the change from a manual to an electronic procedure did not to create a unilateral change violative of the Act, even though the teachers did not previously record the time of their arrival at work. (ALJ Blassman, U-30249, 6/28/11)

RYE POLICE ASSOCIATION AND THE CITY OF RYE. An ALJ dismissed a charge alleging a violation of §209-a.1(d) of the Act due to the change of work location. The change did not impact the unit members’ terms and conditions of employment and was related to the City’s mission. Accordingly, the charge was dismissed. To the extent that the charge alleged a violation of the Act due to a change in equipment, that portion of the charge was also dismissed. (ALJ Maier, U-29126, 6/28/11)

WESTCHESTER COUNTY DEPARTMENT OF PUBLIC SAFETY POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF WESTCHESTER. A charge was deferred pursuant to the Board’s merits deferral policy. The contract contained a maintenance of standards clause and the Board had previously ruled that it was consistent with its merits deferral policy to defer charges base upon this clause. (ALJ Maier, U-30339, 7/5/11)

CHRISTINE V. SERAFIN, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 650, AFL-CIO AND CITY OF BUFFALO. Upon remand ALJ concluded that Serafin failed to plead or present facts to establish that Local 650’s refusal to file an overtime grievance on her behalf was arbitrary, discriminatory or in bad faith. A disagreement as to the merits of a grievance does not establish arbitrary, discriminatory or bad faith conduct. Serafin was told and understood that an earlier and identical grievance was withdrawn by Local 650 at Step 2 on a finding that Serafin did not qualify for the overtime opportunities available. Further, facts and broad conclusions regarding the amount of overtime some employees received compared to the amount Serafin received may support her interpretation of the contract provision in dispute, but fail to establish a violation where there is more than one valid way to interpret the provision. Finally, a union is under no statutory obligation to reiterate its refusal to file a grievance in a form demanded by the charging party. (ALJ Poland, U-28299, 7/11/11)

BLOSSOM RANNIE AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed the charge because it did not identify any conduct to arguably establish any violation occurring within four months of the filing of the charge. (Director Klein, U-31140, 7/21/11)

SCHENECTADY POLICE BENEVOLENT ASSOCIATION AND CITY OF SCHENECTADY. The ALJ found that the City violated Section 209-a.1(d) of the Act when it announced that it would no longer apply the disciplinary procedures contained in the parties’ expired agreement and provided under Section 75 of the Civil Service law, and when it unilaterally issued a General Order setting forth a new disciplinary procedure for unit members. The ALJ also found that the PBA did not violate §209-a.2(b) of the Act when it submitted to interest arbitration a proposal on disciplinary procedures. In both matters the ALJ found the subject of police discipline to be a mandatory subject of negotiation. (ALJ Carlson, U-27887 & U-27980, 7/22/11)

CORTLAND UNITED TEACHERS, NYSUT, AFT, AFLCIO, LOCAL 11-040 AND CORTLAND ENLARGED CITY SCHOOL DISTRICT. The District was found to have violated §209-a.1(e) of the Act when it failed to pay unit employees step increments in accordance with the salary schedule of the expired collective bargaining agreement pending negotiations for a successor agreement. The District’s assertion that language in the expired agreement constituted a sunset of the salary schedule was rejected. (ALJ Fitzgerald, U-30433, 7/26/11)

RICHARD EDWARDS AND TRANSPORT WORKERS UNION LOCAL 100, AFL-CIO AND MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY. Where a union representative chose to finish paperwork rather than attend a step one disciplinary conference which resulted in a member’s being put out of service, the representative acted negligently. The conduct, however, did not rise to the higher level of improper motive, bad faith or arbitrary, which is warranted for the finding of a breach of the duty of fair representation. Furthermore, the representative had asked that the member wait for him, but the member elected not to do so, thereby limiting the representative’s culpability. In addition, although testimony established that union witnesses knew of no other member who had surrendered his or her badge and pass and was put out of work without representation, the decision here was the member’s, so discrimination cannot be found. (ALJ Cacavas, U-29844, 7/27/11)

SUFFOLK COUNTY DETECTIVES ASSOCIATION AND COUNTY OF SUFFOLK. An ALJ deferred a charge to the parties’ grievance and arbitration provisions of their collective bargaining agreement. The charge alleged that the County violated that Act by changing the method of payment of salaries and wages for unit members resulting in a reduction in pay. (ALJ Maier, U-30670, 7/27/11)

MARIE E. MULLEN AND NIAGARA FRONTIER TRANSPORTATION AUTHORITY. The Director dismissed the charge as it provided no relevant facts and did not identify the subsection of the Act allegedly violated. (Director Klein, U-31190, 8/3/11)

KIM G. BRANDEAU AND SUFFOLK COUNTY ASSOCIATION OF MUNICIPAL EMPLOYEES. The Director dismissed the charge alleging that the employee organization violated the Act when it expressed an opinion in its membership newsletter that an employee did not adequately perform a job assignment given by the employer. (Director Klein, U-31107, 8/5/11)

PETER BRADY AND STATE OF NEW YORK-UNIFIED COURT SYSTEM AND NEW YORK STATE COURT OFFICERS ASSOCIATION. The Director dismissed a charge alleging that the employer and the bargaining agent interfered with an employee’s right to move his title from one bargaining unit to another because such uniting questions are most appropriately determined by PERB. (Director Klein, U-31088, 8/5/11)

NEW YORK STATE COURT CLERKS ASSOCIATION AND STATE OF NEW YORK – UNIFIED COURT SYSTEM. An ALJ deferred a charge to the parties’ dispute resolution process under the expired collective bargaining agreement which alleged a unilateral increase in work week. The charge was deferred pursuant to New York City Transit Authority (Bordansky). (ALJ Maier, U-31104, 8/9/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND SPRINGS UNION FREE SCHOOL DISTRICT. An ALJ dismissed a charge which alleged the transfer of the unit work of the District’s pre-kindergarten program and by requiring unit employees to remain on duty on the last day of school. The ALJ held that the District was privileged to transfer the work to nonunit personnel pursuant to the provisions of Education Law §3602-e. The ALJ further held that the District was able to require unit members to remain on duty pursuant to a contractual right, notwithstanding the existence of a past practice to the contrary. (ALJ Maier, U-30168, 8/9/11)

NICOLA A. DEMARCO AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed a charge alleging that an employer and employee organization violated the Act with respect to scheduling a hearing inasmuch as the charge was filed more than four months after the alleged violations occurred and, even if timely, there are no facts to arguably establish the alleged violation. (Director Klein, U-31174, 8/11/11)

COUNTY OF CLINTON and CLINTON COUNTY SHERIFF AND CLINTON COUNTY DEPUTY SHERIFF’S POLICE BENEVOLENT ASSOCIATION, INC. Improper practice charges alleging that the parties each sought compulsory interest arbitration of proposals outside the scope of the provisions of §209.4(g) of the Act upheld in part by the ALJ. The PBA’s proposals, all relating to sick leave accruals and sick leave incentives represented potential compensation only and were not directly related to compensation. Similarly, the County proposal to recoup training costs if a trainee leaves the County with less than two years of service, dealt with only a potential loss of compensation to an employee and was not directly related to compensation. The County’s proposal to lower the starting wage rate of employees without training was directly related to compensation notwithstanding the proposal’s lack of a specific figure. (ALJ Doerr, U-30358 & U-30396, 8/15/11)

MONROE COUNTY CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000 AFSCME, AFLCIO, MONROE COUNTY PART-TIME EMPLOYEE UNIT, LOCAL 828 AND COUNTY OF MONROE. An improper practice charge filed by CSEA alleging that the County violated the Act when its Director of Human Resources made public comments to a newspaper reporter which were retaliatory and intended to undermine CSEA’s status as the representative of the unit was dismissed, following an offer of proof at the hearing. There being no evidence that the County representative’s statements were accurately reported in the newspaper, the charge failed for lack of proof. Further, the charging party’s request at hearing for an adjournment for purposes of attempting to enforce witness subpoenas was denied due to the late timing of the attempt to obtain witness testimony. (ALJ Fitzgerald, U-29373, 8/16/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, AND INCORPORATED VILLAGE OF FLORAL PARK. An ALJ held that the Village violated §209.a(1)(e) of the Act when it failed to advance unit members along the salary step schedule after expiration of the parties’ collective bargaining agreement. (ALJ Maier, U-30380, 8/23/11)

TOMPKINS COUNTY DEPUTY SHERIFFS’ ASSOCIATION AND COUNTY OF TOMPKINS AND SHERIFF. An ALJ dismissed a charge alleging a violation of §209-a.1(d) when the County and Sheriff unilaterally determined not to fill certain vacancies with unit members working overtime on the ground that the Association had not proven a change in a mandatorily negotiable past practice. (ALJ Burritt, U-29112, 9/2/11)

CARL ELLIOTT AND NEW YORK CITY TRANSIT AUTHORITY AND LOCAL 726, AMALGAMATED TRANSIT UNION. The Director dismissed a charge alleging that respondents violated federal antidiscrimination statutes as beyond PERB’s jurisdiction. (Director Klein, U-31244, 9/2/11)

COUNTY OF MONROE AND MONROE COUNTY CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000 AFSCME, AFL-CIO. An improper practice charge filed by the County of Monroe alleging that the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA) violated the Act when it failed to negotiate in good faith, demanded the removal of the County’s negotiator, threatened the removal of the County Executive, and attempted to deal directly with the County Executive and County Legislature, was dismissed. Complaints regarding an employer’s designated representative do not violate the Act absent a refusal to meet in negotiations with that representative, or a threat to discontinue negotiations unless an individual is removed. The additional activity complained of, including political pressure, picketing, website postings, and letters to elected representatives all fall within that activity which, while intended to exert pressure on decision makers, is entirely lawful and does not constitute improper circumvention of the bargaining process. There was no refusal to consider the County’s proposals, as alleged, where the parties initially presented their demands and then agreed to proceed on the several primary issues of concern, particularly where those negotiations resulted in the reaching of two tentative agreements. (ALJ Fitzgerald, U-29666, 9/9/11)

JOHN N. SCOURAKIS AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK) AND PUBLIC EMPLOYEES FEDERATION. The Director dismissed the charge as untimely inasmuch as it occurred more than four months prior to the filing of the charge. (Director Klein, U-31251, 9/13/11)

ISAIAH J. DILLHUNT AND LOCAL 384, DISTRICT COUNCIL 37, AFSCME. The Director dismissed a charge alleging that the employee organization violated its duty of fair representation when it denied an employee’s request to file a complaint alleging that the employer violated the Public Employee Safety and Health Act because a union’s duty does not extend to the commencement of statutory proceedings unless it does so for other similarly situated employees. (Director Klein, U-31265, 9/13/11)

FINGER LAKES COMMUNITY COLLEGE PROFESSIONAL ASSOCIATION AND FINGER LAKES COMMUNITY COLLEGE AND COUNTY OF ONTARIO. The Association’s unit placement petition was dismissed on a finding that the sought after title, athletic director, was managerial. The athletic director determines his department’s mission, exercises complete budget autonomy, establishes policy, has sole authority to hire and fire his staff and establishes department-wide curriculum. That some Association members may arguably perform tasks that could support a finding that they are managerial does not warrant a contrary conclusion. (ALJ Doerr, CP-1235, 9/14/11)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, WESTCHESTER COUNTY LOCAL 860, TOWN OF NORTH CASTLE HIGHWAY UNIT 1 #8226-01 (CSEA) AND TOWN OF NORTH CASTLE. The assignment of work out of the unit to employees of another municipality, represented by a separate and different bargaining agent, is subcontracting despite the existence of a shared use agreement between municipal entities. A municipality’s entering into an Inter-Municipal Agreement does not release it from its obligations under the Taylor Law. Language in a collectively negotiated agreement between the bargaining agent and the employer, however, which allows for subcontracting when it does not result in a loss of employment or overtime, constitutes a waiver of the union’s right to challenge subcontracting and constitutes a satisfaction of the employer’s duty to negotiate such action. (ALJ Cacavas, U-30300, 9/14/11)

RENSSELAER TEACHERS ASSOCIATION, AFL-CIO, AFT, NEA, NYSUT #10180 AND RENSSELAER CITY SCHOOL DISTRICT. The charge was deferred to the grievance procedure contained in the parties’ collective bargaining agreement. (ALJ Burritt, U-31156, 9/14/11)

LIVINGSTON MANOR TEACHERS’ ASSOCIATION AND LIVINGSTON MANOR CENTRAL SCHOOL DISTRICT. The Association’s claim that the District violated §§209-a.1 (a), (d) and (g) of the Act by failing to negotiate in good faith in connection with a March 16, 2009 retirement incentive and by denying a unit member the right to representation by the Association at a meeting to discuss her layoff was dismissed. (ALJ Burritt, U-29261, 9/16/11)

EUGENIA SPENCER 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 ALJ dismissed the charge, which alleged that the UFT failed to respond to Spencer’s inquiries, based upon Spencer’s failure to appear for the scheduled hearing. The ALJ found that the reasons Spencer gave for her failure to appear in response to a pending motion to dismiss the charge were insufficient to excuse her non-appearance. Spencer alleged family and personal illness, but failed to state that she was actually caring for any relative or that she was personally ill on the hearing day. Although she stated that she had a case in federal court on the day of hearing, the proceeding in federal court was not scheduled until 4:00 p.m. and the hearing was scheduled at 10:00 a.m. and Spencer did not explain why she could not have appeared at PERB in the morning or requested an adjournment before the day of the hearing. (ALJ Blassman, U-26270, 9/19/11)

CITY OF ALBANY AND ALBANY POLICE SUPERVISORS’ ASSOCIATION. The Association’s proposal seeking to amend the parties’ agreement relating to department investigations providing an employee who is to be questioned, four hours notice of the purpose of the investigation was found to involve a procedure incident to discipline and therefore mandatory. The Association’s proposal, however, seeking additional pension benefits equal to one-sixtieth of a retiree’s final average salary was found to be improperly before the interest arbitration panel. Section 384-e(c) of the Retirement and Social Security Law specifically provides that such a proposal cannot be submitted to fact finding or interest arbitration. (ALJ Doerr, U-30430, 9/19/11)

COUNTY OF ULSTER AND ULSTER COUNTY SHERIFF AND ULSTER COUNTY DEPUTY SHERIFFS POLICE BENEVOLENT ASSOCIATION, INC. The PBA’s proposals seeking the monetization of accrued sick leave were found to be properly submitted to interest arbitration pursuant to §209-4 (g) of the Act in accordance with the decision in County of Orange and Sheriff of Orange County, 44 PERB ¶3023 (2011) where the Board reversed so much of earlier decisions finding such proposals to involve potential compensation only. (ALJ Doerr, U-30658, 9/19/11)

JOEL A. LEE AND LOCAL 282, AMALGAMATED TRANSIT UNION. The Director denied the charges because they were not filed on the requisite improper practice charge form, they were untimely and there were no facts to arguably establish arbitrary, discriminatory or bad faith conduct. (Director Klein, U-31186, U-31230, 9/19/11)

COUNTY OF ERIE AND SHERIFF OF ERIE COUNTY AND TEAMSTERS LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEAMSTERS. The County was found to have violated §209-a.1(d) of the Act when it subcontracted the work of Teamsters Registered Nurses at the Holding Center to Registered Nurses represented by New York State Nurses Association. The County’s defense of compelling reason failed as it was found that the County did not bargain to impasse prior to the transfer of exclusive bargaining unit work and did not bargain after the transfer. Similarly, the County defense that the subcontracting of the work of RNs to a different bargaining unit was mission related failed. Its mission was to provide adequate medical care to inmates at the Holding Center, not to unilaterally determine the bargaining representative of those providing that care. (ALJ Doerr, U-29239, 9/21/11)

UNIFORMED FIREFIGHTERS ASSOCIATION, LOCAL 287 AND CITY OF LONG BEACH. The City manager’s distribution of a letter directly to unit members which criticized union officials and attempted to directly deal with them on a outstanding dispute violated §209-a.1(a) and (b) of the Act. The letter also criticized the union president, one week before union elections, and was given to the president’s challenger, whom the manager supported, to distribute. Claimed retaliation against the union president in the form of bypassing him for promotion on two occasions, however, was not established. Although the circumstantial evidence created a presumption of wrongful intent under §209-a.1(a) and (c) of the Act, the respondent presented legitimate business reasons for its appointments. Against a backdrop of broad discretion in choosing among the top three candidates on a civil service list, the employer’s action was not found to be unlawful. Rebuttal was denied where an offer of proof showed it to be unrelated to new evidence introduced during respondent’s case and/or irrelevant to the legal question presented. (ALJ Cacavas, U-29550, 9/22/11)

COUNTY OF CHENANGO AND CHENANGO COUNTY SHERIFF AND CHENANGO COUNTY LAW ENFORCEMENT ASSOCIATION, INC. A proposal seeking the deduction of agency fees was not arbitrable as there was no nexus between the agency fee payer and the County. Proposals for an increase in the accumulation of sick time, increase in the vacation day banking, increase in number of union release days and increase in holidays were not directly related to compensation and not arbitrable pursuant to §209.4(g) of the Act. The proposals sought only an increase in paid time off without a corresponding reduction in wages. A proposal for the monetization of accumulated sick leave was arbitrable under the Board’s decision in County of Orange and Sheriff of Orange County, 44 PERB ¶3023 (2011) where the Board reversed so much of prior Board decisions that determined cash out or payment for accumulated leave represented potential compensation only. Finally, a proposal that was reasonably read as usurping the County’s ability to make initial determinations in GML §207-c cases was nonmandatory. (ALJ Doerr, U-30738, 9/22/11)

KEVIN MCCAWLEY AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ dismissed the charge’s allegation that the Authority violated §§209-a.1(a) and (c) of the Act when it passed McCawley over for promotion in retaliation for his serving as a TWU representative. The ALJ found that the record did not prove that the supervisor, who recommended against McCawley’s promotion and knew of his representational activity, was motivated by that activity. The ALJ noted that there was no record evidence that the supervisor had ever expressed annoyance, anger or displeasure at McCawley’s representational activity, or at any activity by the TWU or its representatives, and that the supervisor had, one year earlier, favorably recommended McCawley for a provisional promotion. The ALJ also found that the record supported the reason given for the failure to promote McCawley: he had a poor attendance history and an insufficient sick leave balance. (ALJ Blassman, U-29646, 9/28/11

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last modified: 11/23/2011
URL: http://www.perb.ny.gov/dec.asp