Archived Decision Summaries - January 1, 2004 through December 31, 2004

(Updated February 11, 2005)


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Decision Summaries Of The Board


Board Certifications

ELLICOTTVILLE CENTRAL SCHOOL-RELATED PROFESSIONAL ASSOCIATION NYSUT/AFT AFL-CIO has been certified to represent full-time and part-time non-teaching employees of the Ellicottville Central Schools, including regular substitutes. All other employees are excluded from the unit. (C-5453, 12/1/04)

TEAMSTERS LOCAL 791 has been certified to represent employees of the Regional Transit Service, Inc. in the titles of road supervisors, dispatchers, radio controllers and garage foremen/supervisors. All other employees are excluded from the unit. (C-5440, 12/1/04)

NIAGARA FALLS HOUSING AUTHORITY PART-TIME EMPLOYEES UNION, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, AFL-CIO has been certified to represent employees of the Niagara Falls Housing Authority in the titles of part-time resource/community center aide, part-time purchasing clerk and all less than 20 hours employees. Excluded from the unit are all department heads, director, assistant director, general manager, permanent full-time and regular part-time employees. (C-5431, 12/1/04)

ROOSEVELT CHILDREN’S ACADEMY WORKERS’ ASSOCIATION has been certified to represent employees of the Roosevelt Children’s Academy in the following units: Unit 1 - teachers, cooperating teachers and nurses. All other employees are excluded. Unit 2 - administrative assistants and maintenance/security workers. All other employees are excluded. (C-5425, 12/1/04)

NASSAU COUNTY INVESTIGATORS POLICE BENEVOLENT ASSOCIATION, INC. has been certified to represent employees of the County of Nassau in the titles of Financial Investigator I, Financial Investigator II, Special Investigator I, Special Investigator II, Environmental Conservation Investigator, Electronic Surveillance Investigator, and Detective Investigator. All other employees are excluded from the unit. (C-5319, 12/1/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent all part-time employees of the County of Monroe in the titles Nursing Assistant, Licensed Practical Nurse, Registered Nurse, Nursing Supervisor, Grand Jury Stenographer, Laborer Heavy, Clerk IV-80, Public Health Sanitarian, Clerk Typist – 80, Food Service Worker, Ground Equipment Operator, Zoo Keeper, Medical Investigator, Building Service Worker, Registered Nurse – 80, Data Entry Operator – 80, Telephone Operator, Telephone Operator – 80, Clerk II with typing – 80, Clerk III with typing – 80, Clerk G2, Dietary Aide, Clerk Typist, Clerk G4, Working Foreman, Guard p.t., Senior Recreational Instructor p.t., Motor Equipment Operator, Clerk Typist – 80 hours, Forensic Attendant p.t., Clerk III with typing pd p.t. – 80, Senior Account Clerk 80, Driver Messenger, Clerk III – 80, Toxicology Technician p.t., Speech Pathologist, Zoo Attendant, Toxicologist I, Leisure Services Aide, Nutritionist p.t. All Full-time managerial and confidential employees, as well as Exam Proctors, and part-time Deputy Sheriffs are excluded from the unit. (C-5402, 12/1/04)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent employees of the Hewlett-Woodmere Union Free School District in the titles of Food Service Helper, salaried; Food Service Helper, hourly; Cleaner; Maintainer Supervisor; Custodian; Assistant Cook; Supervisor of Operations; Maintainer; Cook; Head Custodian I; Information Technology Aide I; AV Tech; Supervising Groundskeeper; Groundskeeper; Cook Manager; Assistant Head Custodian; Network Specialist II; PC Support Tech; Information Technology Specialist I. All other employees are excluded. (C-5422, 12/1/04)

TEAMSTERS LOCAL #264 has been certified to represent all regular full-time and regular part-time Department of Public Works employees of the Village of Lewiston. Excluded from the unit are employees in the titles of Superintendent of Public Works, Deputy Superintendent of Public Works, supervisory employees, temporary employees, seasonal employees, clerical employees, and all other employees employed by the Village of Lewiston. (C-5395, 8/25/04)

CAYUGA COUNTY COMMUNITY COLLEGE EDUCATIONAL SUPPORT PROFESSIONALS has been certified to represent full-time competitive civil service employees employed by the County of Cayuga and Cayuga County Community College. Excluded from the unit are employees in the titles of Secretary to the President, Secretary to the Director of Personnel, Custodian, Senior Custodian, Building Maintenance I, Building Maintenance II. (C-5371, 7/8/04)

TEAMSTERS LOCAL #264 has been certified to represent all full-time and regular part-time Highway Department employees of the Town of Birdsall. All other employees are excluded from the unit. (C-5377, 7/8/04)

HEMPSTEAD SCHOOL CIVIL SERVICE ASSOCIATION, NEA-NY, NEA has been certified to represent all nonteaching employees of the Hempstead Union Free School District. Excluded from the unit are employees in the titles of Director of Security, Director of Food Services, Superintendent's Secretary , Secretary to the Assistant Superintendent for Curriculum and Instruction, Secretary to the Assistant Superintendent for Business (or the Business Manager), Secretary to the Associate Superintendent for Human Resources, Custodial- Maintenance employees, Teaching Assistant employees, three confidential (non-bargaining unit) personnel in the Human Resources/Personnel Department, and Substitute Employees in Food Service employed four months or less. (C-5353, 5/26/04)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 237 has been certified to represent employees of the Plainview-Old Bethpage Central School District in the titles of Cafeteria Aides, Teachers Aides, Library Aides, Recreation Aides, Computer Aides, Special Education Aides and Bus Monitors. All other employees are excluded from the unit. (C-5357, 5/26/04)

SACHEM SCHOOL DISTRICT EMPLOYEES UNION has been certified to represent all full-time and part-time employees of the Sachem Central School District in the titles of Custodial Workers, Head Custodian, Chief Custodian, Groundsmen, Athletic Groundskeeper, Head Groundsmen, Maintenance Mechanic, Automobile Mechanic, Driver/Messenger, Console Operator, Bus Driver, Bus Monitor, Cook and Supervisory Cook. Excluded from the unit are all Clericals, Administrators, Teachers, Paraprofessionals, Directors, Nurses, Security Personnel, and all other employees of the district not employed in the categories expressly set forth in the included above. (C-5359, 5/26/04)

UNITED FEDERATION OF TEACHERS has been certified to represent all full-time and part-time teachers employed by the Family Life Academy Charter School, including the Special Education Teacher Support Services (SETSS) Teacher, the Special Education Coordinator, teaching assistants and teaching fellows. Excluded from the unit are the titles of Principal, Educational Director, Operations Manager and all other employees. (C-5370, 5/26/04)

PROFESSIONAL EDUCATORS OF CORNING COMMUNITY COLLEGE has been certified to represent all full-time teaching faculty employed by the Corning Community College. Excluded from the unit are employees in the titles of division chairpersons and faculty on administrative assignment who teach less than 50% of a full-time teaching load. (C-5331, 1/23/04)

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Representation

NEWBURGH TEACHERS' ASSOCIATION, NYSUT, AFT, AFL-CIO AND NEWBURGH ENLARGED CITY SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Board affirmed the decision of the Administrative Law Judge (ALJ) finding that teaching assistants employed by the District were most appropriately included in the unit of all professional certified personnel represented by the Association and not in the unit of noninstructional District employees represented by CSEA. Relying on a long line of decisions that have consistently included teaching assistants in bargaining units of teachers, the Board determined that the professional status of the teaching assistants, coupled with their certification requirements, direct instructional duties and terms and conditions of employment, warranted their inclusion in the Association's unit. (CP-866, 9/30/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND SOUTHERN CAYUGA CENTRAL SCHOOL DISTRICT AND SOUTHERN CAYUGA CENTRAL SCHOOL TEACHERS ASSOCIATION. The Board affirmed the decision of the ALJ dismissing CSEA's petition seeking placement of teaching assistants in its unit of non-instructional employees of the District and, instead, placing teaching assistants in the unit of teachers represented by the Association. The Board, relying on its decision in Newburgh City School District, decided the same day, reiterated that it was following a long line of decisions that had consistently placed teaching assistants in units of teachers. The Board's decision in Ichabod Crane Central School District, 33 PERB 3042 (2000), confirmed, CSEA v. PERB, 300 AD2d 929, 35 PERB 7020 (3d Dep't 2002), finding that registered nurses shared a unique community of interest with other professional employees in a school district, did not compel a contrary conclusion, as urged by CSEA and the District. (CP-905, 9/30/04)

INTERNATIONAL ASSOCIATION OF EMT'S & PARAMEDICS, SEIU/NAGE, AFL-CIO AND COUNTY OF ALBANY AND SHERIFF. The Board dismissed the petition filed by the Association as a result of an election by secret ballot in which a majority of ballots were cast against representation by the Association. (C-5372, 9/30/04)

ALBANY POLICE SUPERVISORS ASSOCIATION AND CITY OF ALBANY AND NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO. The Board denied an interlocutory appeal by Council 82 to a ruling of the Administrative Law Judge (ALJ) holding that the Association's petition to represent certain sergeants and lieutenants in the City of Albany Police Department was timely and that the declaration of authenticity filed in support of the petition was in compliance with PERB's Rules of Procedure. Reiterating that permission to appeal rulings made in conjunction with the processing of a representation petition will not be granted absent extraordinary circumstances, the Board denied the appeal because the issues raised were not novel and would only serve to delay the processing of the petition and the holding of the election that had already been scheduled. (C-5400, 8/25/04)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO AND MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY AND TRANSPORT WORKERS UNION LOCAL 106 (TRANSIT SUPERVISORS ORGANIZATION CAREER & SALARY UNIT) AND DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO. The Board affirmed the decision of the Administrative Law Judge (ALJ) and dismissed the petition filed by Local 100 seeking the placement of certain professional and salaried computer and telecommunications employees employed by MABSTOA in a unit of hourly employees in occupational and maintenance titles, finding that the differences in terms and conditions of employment compelled a determination the at-issue titles would not be appropriately placed in Local 100's unit. Likewise, the Board determined that the at-issue titles did not share a community of interest with the supervisory titles represented by Local 106 or with the technical employees represented by DC37. The Board also found that although a local of DC37 represented employees in identical titles employed by the New York City Transit Authority, that did not warrant placement of the at-issue titles in the unit of MABSTOA employees represented by DC37, especially in light of language in the Public Authorities Law prohibiting such a decision. (CP-851, 5/26/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND BATH MUNICIPAL UTILITY COMMISION. The Board reversed the decision of the ALJ and found that the in-issue titles sought to be placed by CSEA in its existing bargaining unit were supervisory employees with significant supervisory duties and responsibilities that precluded their inclusion in a unit of rank and file employees. The Board affirmed the ALJ's rejection of the Commission's argument that the petition should have been dismissed because the recognition clause in the CSEA-Commission collective bargaining agreement specifically excluded the in-issue titles. Relying on Regional Transit Service, 35 PERB 3022 (2002), the Board reiterated that, while employers and employee organizations are encouraged to agree upon the composition of bargaining units, when a representation dispute arises, it is PERB that has the statutory duty to determine the most appropriate bargaining unit. (CP-897, 5/26/04)

SYRACUSE TEACHERS ASSOCIATION AND SYRACUSE CITY SCHOOL DISTRICT AND SYRACUSE ASSOCIATION OF MANAGERS AND SUPERVISORS, SAANYS. The Board remanded the petition to the Director of Public Employment Practices and Representation (Director) for further processing, finding that the ALJ erred in deciding a petition for certification/ decertification using the standard for a unit clarification petition. The Association had filed a representation petition seeking the removal of the newly created title of Cook Manager from the unit represented by SAANYS and its inclusion in the Association's bargaining unit. (C-5191, 3/26/04)

TODD KILBY AND MONROE 2 - ORLEANS BOCES AND THE ELEMENTARY SCIENCE PROGRAM ASSOCIATION OF MONROE 2 - ORLEANS BOCES, UAW, LOCAL 1097, UNIT 6. The Board decertified the Association as the exclusive bargaining agent for a unit of all regular full-time and part-time Elementary Science Program Kit Processors and Stock Clerks/Couriers as a result of a representation election in which the majority of eligible voters in the unit cast valid ballots indicating that they no longer wished to be represented by the Association for the purpose of collective negotiations. (C-5355, 3/26/04)

SOUTHAMPTON TOWN PUBLIC SAFETY BENEVOLENT ASSOCIATION AND TOWN OF SOUTHAMPTON AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Board affirmed the decision of the Administrative Law Judge (ALJ) dismissing the Association's petition seeking to fragment for purposes of representation eighteen public safety dispatchers from a unit of Town employees represented by CSEA. The Board found no evidence of inadequate representation of the dispatchers by CSEA when, during a difficult round of negotiations, CSEA determined to compromise on two proposals affecting only the dispatchers in order to gain a major concession on health insurance because sometimes the interests of a subgroup must be subordinated to the interests of the majority to bring closure to the bargaining process. (C-5248, 1/23/04)

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Management / Confidential

NO ARCHIVED MANAGEMENT / CONFIDENTIAL BOARD Decision Summaries FOR 2004.

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Improper Practices

MYRJA ROSADO AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the dismissal of Rosado’s improper practice charge alleging that the Authority denied her request for transfer back to the day shift as untimely. The Board found that Rosado’s fourth request for reconsideration by the Authority of its earlier decision to transfer Rosado to the night shift and its decision not to transfer her back to the day shift did not render her charge timely filed. It is the original action that starts the tolling of the period of limitations and subsequent reiterations of the initial act or inquiry pursuant to inquiry or request by a charging party do not extend the filing period or create a new one. (U-24695, 12/1/04)

CALVIN CUAVERS AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the dismissal of Cuavers’ charge that the UFT had violated its duty of fair representation as untimely because it was filed more than four months after the acts complained of in the charge. The fact that the District’s final determination of Cuavers’ grievance appeal occurred within four months of the filing of the charge did not toll the period of limitations. The Board also found that the charge was properly dismissed because Cuavers had failed to file the number of copies of the improper practice charge and its amendments as prescribed by the Rules of Procedure. Lastly, the charge was also found to be deficient because Cuavers had failed to have his last amendment notarized. (U-25026, 11/9/04)

EAST MEADOW TEACHERS ASSOCIATION SCHOOL RELATED PERSONNEL UNIT, NYSUT, AFT, AFL-CIO AND EAST MEADOW TEACHERS ASSOCIATION, NYSUT, AFT, AFL-CIO AND EAST MEADOW UNION FREE SCHOOL DISTRICT. The Board affirmed the ALJ's decision finding that the District had not violated the Act when it assigned Intervention Assistants, represented by the SRP, to perform certain supplementary literacy instruction with kindergarten students that incorporated references to art, music, physical education and library, as alleged by the SRP in its improper practice charge (U-23888). The Teachers Association had alleged in its charge (U-23959) that the work had previously been exclusively performed by teachers in its bargaining unit. The Board found that the assignment had been made pursuant to a new and different curriculum (Literacy Through the Arts), utilizing a different modality than that used by teachers and that it was not instruction as performed by the teachers, but a supplement to the instructional program. (U-23888 & U-23959, 10/26/04)

CORRECTION OFFICERS BENEVOLENT ASSOCIATION OF ROCKLAND COUNTY AND COUNTY OF ROCKLAND AND ROCKLAND COUNTY SHERIFF. The Board affirmed the decision of the ALJ dismissing the improper practice charge filed by the Association alleging that the County and Sheriff had violated §209-a.1(d) of the Act when they assigned to non-unit, part-time transport officers the duty of locking inmates who are awaiting legal proceedings in holding cells in the County Court House; a duty alleged to have been the exclusive unit work of correction officers represented by the Association. The Board found that the locking of the inmates in the holding cells was an incidental task to those already performed interchangeably by both transport officers and correction officers. (U-23897, 10/26/04)

SARA-ANN P. FEARON AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the ALJ dismissing Fearon's improper practice charge which alleged that UFT had violated §209-a.2(c) of the Public Employees' Fair Employment Act (Act) when it refused to take a grievance she had filed to step three of the UFT-District grievance procedure. The Board found that Fearon had failed to establish a prima facie case of a failure of the duty of fair representation by UFT. (U-23556, 9/30/04)

GREENBURGH UNIFORMED FIREFIGHTERS ASSOCIATION, INC., LOCAL 1586, IAFF, AFL-CIO AND HARTSDALE FIRE DISTRICT. The Board affirmed the decision of the ALJ, finding that the District violated §§209-a.1(a) and (c) of the Act when it issued a counseling memorandum to a unit employee in retaliation for his exercise of protected rights. The Board found that but for the employee's position as an officer of the Association, he would not have been disciplined for performing a plectron test in an untimely fashion. (U-24197, 9/30/04)

SARATOGA COUNTY DEPUTY SHERIFFS BENEVOLENT ASSOCIATION AND COUNTY OF SARATOGA AND SARATOGA COUNTY SHERIFF. The Board found that the County and Sheriff had violated §209-a.1(d) of the Act when an order was issued that changed the time and place where a member of the unit represented by the Association could make a personal phone call in the Saratoga County Correctional Facility. Finding that a valid past practice existed regarding a mandatory subject of negotiations and that the employer condoned and acquiesced in the practice, the Board also rejected the employer's defenses of waiver and management rights and ordered the status quo restored. (U-23829, 8/25/04)

CORTLAND ONONDAGA MADISON BOCES ORGANIZATION, NYSUT, AFT LOCAL 3829 AND ONONDAGA CORTLAND MADISON BOARD OF COOPERATIVE EDUCATIONAL SERVICES. The Board reversed the decision of the ALJ and dismissed NYSUT's charge that BOCES violated §209-a.1(d) of the Act when it unilaterally changed the work year of employees in the title of System Consultant. Finding that a public employer may, for good business reasons, reduce the services that it provides to the public and that such a good faith reduction in services may justify the public employer in reducing its employees' workload with a commensurate reduction in salaries, the Board determined that BOCES was privileged to reduce the System Consultant's work year because of a reduced demand for their work by its constituent school districts. (U-24484, 8/25/04)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The Board affirmed the ALJ, finding that the State violated §209-a.1(d) of the Act when it unilaterally promulgated a change in the policy and procedure for the use of pre-approved sick leave by requiring two employees in the unit represented by NYSCOPBA, to provide medical documentation in support of their requests for four hours or less of sick leave. The Board determined that the change in the established policy and procedure for the use of sick leave for medical and dental appointments of four hours or less duration was a unilateral change in a mandatory subject of negotiations and that neither prior directives nor time and attendance rules permitted the State's action. (U-23790, 8/25/04)

KENNETH BELLAMY AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, NYSUT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the ALJ dismissing the improper practice charge, filed against UFT, alleging that it violated §209-a.2 (c) of the Act when it failed to represent him as he thought appropriate at an arbitration hearing. In deciding the motion to dismiss made by UFT and the District at the close of Bellamy's direct case, the ALJ found that Bellamy had failed to establish that UFT acted in a manner that was arbitrary, discriminatory or in bad faith in handling Bellamy's grievance. (U-23418, 7/8/04)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The Board affirmed the decision of the ALJ, finding that the State violated §209-a.1(a) of the Act by issuing an order prohibiting members of the PBA from wearing PBA pins while assisting the defense in a criminal trial. The Board found that the wearing of union insignia, either while on duty or off-duty, absent special circumstances, is a right protected by the Act. The State's articulation of a ban on such activity, where no restriction existed before, was the implementation of a new rule affecting both off-duty conduct and discipline. The State's articulated concerns did not outweigh the right of PBA members to participate in union activity. (U-24165, 7/8/04)

VICTOR MALTSEV AND CIVIL SERVICE TECHNICAL GUILD, LOCAL 375, DISTRICT COUNCIL 37, AFSCME AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing as deficient the improper practice charge filed by Maltsev which alleged that Local 375 violated §209-a.2(c) of the Act when it failed to pursue a grievance which he had filed. The Board found that Maltsev had not made out a prima facie showing of arbitrary, discriminatory or bad faith conduct on the part of Local 375 and that the Director correctly dismissed the charge. (U-24927, 7/8/04)

SOO H. (SUSAN) TSUI AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the ALJ dismissing the improper practice charges that alleged that the Board of Education had violated §§209-a.1 (a) and (c) of the Act when it placed a disciplinary letter and an unsatisfactory observation report in Tsui's personnel file. The Board found that while Tsui had engaged in protected activity by seeking the assistance of her union and by filing a grievance and that the Board of Education was aware of her protected activities, she had not established that but for the exercise of protected rights, she would not have received the disciplinary letter and unsatisfactory observation. (U-22908 & U-22988, 5/26/04)

AMALGAMATED TRANSIT UNION DIVISION 726, AFLCIO AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the ALJ finding that the Authority violated §§209-a.1 (a) and (c) of the Act when it disciplined an employee represented by ATU for a uniform violation and when it denied his request for union release time. The Board found that the employee had engaged in protected activity when, as an ATU representative, he filed 36 grievances and that the Authority was aware of his exercise of protected rights and the timing of the discipline, the severity of the discipline sought and the statement made by a supervisor that for every grievance filed someone would be written up was sufficient to sustain the finding of a violation. The Board found that the Authority also improperly denied the employee's request for union release time, but ordered no remedy since the employee disregarded the denial and attended the ATU meeting. The Board found no violation of §209-a.1(d) of the Act in the Authority's denial of union release time because that alleged violation had not been timely pled as part of the charge or amended charge. The Board also dismissed the charge as to the allegations that another employee had been disciplined for failing to change the requisite number of tires per day for a period of four days because the Authority established genuine business reasons for the disciplinary action.(U-23339, 5/26/04)

SUPERIOR OFFICERS ASSOCIATION OF THE POLICE DEPARTMENT OF THE COUNTY OF NASSAU, INC. AND COUNTY OF NASSAU. The Board reversed the decision of the ALJ and dismissed the charge alleging that the County had violated §209-a.1(d) of the Act when it unilaterally discontinued the practice of assigning a County vehicle to sergeants in the Applicant Investigation Unit (AIU) of the County Police Department. The Board found that the Association had failed to establish that the commanding officer of the AIU had the authority to bind the County to the practice alleged. (U-23900, 5/26/04)

ROCHESTER POLICE LOCUST CLUB, INC. AND CITY OF ROCHESTER. The Board affirmed the decision of the ALJ finding that the City violated §209-a.1(a) of the Act when it denied police officers represented by the Club access to union representation while they were under criminal investigation for actions they took as police officers. The Board found that under the Act a police officer who is subject to a criminal investigation interview regarding the performance of his or her duties which may constitute criminal behavior has a reasonable belief that discipline may follow and, as such, is entitled to union representation if such is requested. (U-23938 & U-24081, 5/26/04)

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 41 AND TOWN OF EVANS. The Board affirmed the decision of the ALJ finding that the Town violated §§209-a.1 (a) and (d) of the Act when it refused a request for information from IBEW for information regarding disciplinary charges filed against a unit employee. The Board held that the Act provides that a public employer must provide information which is necessary and relevant to the investigation of grievances. The Board rejected the Town's arguments that the information sought was privileged, not available, and not relevant to the inquiry, and that the parties' collective bargaining agreement covered the parties' rights in this area. (U-24260, 5/26/04)

PROFESSIONAL STAFF CONGRESS - CITY UNIVERSITY OF NEW YORK AND CITY UNIVERSITY OF NEW YORK. The Board affirmed in part and reversed in part the decision of the ALJ. The Board affirmed the ALJ's determination that CUNY did not violate §209-a.1(d) of the Public Employees' Fair Employment Act (Act) when it unilaterally adopted changes in its intellectual property policy, relying on provisions in the parties' collective bargaining agreement that vested in CUNY the right to adopt and implement alterations to certain existing policies, upon notice to and consultation with PSC. However, the Board reversed the ALJ's finding that CUNY violated the Act when it refused to negotiate with PSC about the proposed policy after the expiration of the contract. The Board found that the contractual provision was a waiver of PSC's right to negotiate about certain policy changes, including the intellectual property policy, and the contract's expiration did not extinguish the waiver. (U-22948, 3/26/04)

SARA-ANN P. FEARON AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board denied Fearon's motion for an interlocutory ruling, finding that there was no showing of extraordinary circumstances which would result in severe prejudice to Fearon if the ruling of the ALJ which was the subject of Fearon's motion was not reviewed until the ALJ issued a final decision in the matter. (U-23556, 03/26/04)

STATE OF NEW YORK AND POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. The Board affirmed the decision of the Director dismissing the State's improper practice charge that alleged that the PBA had violated the Act by refusing to withdraw from fact-finding its negotiating proposals dealing with discipline. The charge was properly dismissed, the Board found, because the State had not objected to the submissions of the PBA's proposals at the time they were submitted to fact-finding. If there is no objection as to negotiability of a demand at the time of filing a petition for fact-finding, it is not an improper practice to submit such a demand for determination by the neutral. (U-24564, 3/26/04)

ERIC G. BROCKINGTON AND TRANSPORT WORKERS UNION, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The Board reversed the decision of the ALJ and found that the TWU did not violate the Act in its handling of a grievance arbitration for Brockington. While the TWU did not secure witnesses or certain documents requested by Brockington for his disciplinary grievance arbitration hearing, there was no evidence introduced by Brockington in support of his improper practice charge to establish that the TWU's decision not to comply with Brockington's requests was arbitrary, discriminatory or bad faith conduct. (U-23951, 1/23/04)

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Declaratory Rulings

NO DECLARATORY RULINGS FOR 2004.

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Strikes

NO STRIKE Decision Summaries FOR 2004.

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Local Procedures

NO LOCAL PROCEDURES Decision Summaries FOR 2004.

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Other Matters

CITY OF NEW YORK AND PATROLMEN’S BENEVOLENT ASSOCIATION. The Board issued an expedited determination to the declaratory ruling petition filed by the City seeking a ruling as to the scope of negotiations of certain demands submitted by PBA to interest arbitration. The Board found that PBA’s demands relating to health and welfare funds, interest payments, productivity, improving working conditions, and including terms from the last arbitration award in a written collective bargaining agreement to be mandatory subjects of negotiations. The Board found that PBA’s demand regarding defibrillator training was nonmandatory. (DR-114, 11/9/04)

PATROLMEN’S BENEVOLENT ASSOCIATION AND CITY OF NEW YORK. The Board dismissed as untimely PBA’s petition for a declaratory ruling, pursuant to §205.6(c) of the Rules, finding that the petition was filed more than ten days after the City’s response to PBA’s petition for interest arbitration. Additionally, the Board dismissed the amendment to the petition for declaratory ruling, finding that it, too, was untimely filed, relating back to the date the City filed its response to PBA’s petition for interest arbitration. The Board rejected PBA’s argument that the amended petition was timely because it was filed in response to the City’s letter of clarification as to its wage demands, which had been filed at the request of the chair of the interest arbitration panel. The Board found that the PBA's amended petition did not refer to either the petition for interest arbitration or the response thereto. Therefore, it was not a proper subject of a declaratory ruling petition. (DR-115, 11/9/04)

PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. AND CITY OF NEW YORK. The Board affirmed the decision of the Director of Conciliation that an impasse exists in the collective negotiations between the PBA and the City and his appointment of a mediator to the contract dispute. (M2004-024, 7/8/04)

STATE OF NEW YORK AND NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO. The Board affirmed the decision of the Director of Conciliation to appoint a mediator in the impasse in negotiations between Council 82 and the State. The State argued that the appointment of a mediator was premature because it was ready and willing to continue negotiations with Council 82. In confirming the designation of a mediator by the Director, the Board considered that there had been 21 bargaining sessions between the parties and over eight months had elapsed since the expiration of the parties' last collective bargaining agreement. (M-2003-310, 5/26/04)

COUNTY OF NASSAU AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO (LOCAL 830) AND PUBLIC EMPLOYEES FEDERATION, AFL-CIO. The Board remanded the petitions to the Director for further processing after determining that the record before the Nassau County mini-PERB, where the petitions had originated, contained factual discrepancies that needed to be resolved before the Board could decide the representation issues presented by the petitions. The Board also noted that the County had reorganized the County Attorney's Office during the pendancy of the petitions and that such developments were relevant to the Board's inquiry into whether the at-issue employees (Deputy County Attorneys) were managerial and/or confidential employees who were exempt from representation. (R-067, 3/26/04)

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Decision Summaries of the Office of Public Employment Practices and Representation


Representation

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1049 AND NEW YORK POWER AUTHORITY. IBEW filed a petition seeking to represent a unit of employees working for the Authority at the Richard M. Flynn Power Plant. The Authority opposed the petitioned-for unit, arguing that certain supervisors, who the IBEW did not seek to represent, should be included in the unit and that the secretary who reports to the Plant’s Director should be excluded from the unit as a confidential employee. The Administrative Law Judge found the most appropriate unit to be one that excludes the supervisors and includes the secretary. The ALJ held that, although the supervisors are first line supervisors, who perform much of the same work as the employees they supervise, their level of supervisory authority, specifically in the areas of employee evaluation and discipline, creates a conflict or potential conflict of interest that requires their exclusion from the rank-and-file unit. The secretary was included in the unit, since the record did not demonstrate that she is exposed to confidential information or acts in a confidential capacity to the plant’s Director, as required by Town of Dewitt, 32 PERB ¶3001 (1999). (ALJ Blassman, C-5351,11/04/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, NIAGARA COUNTY LOCAL 872, STARPOINT CENTRAL SCHOOL DISTRICT UNIT 7698-02 AND STARPOINT CENTRAL SCHOOL DISTRICT. CSEA’s petition for unit clarification was granted as to the titles Senior Typist and Account Clerk, while the unit placement portion of the petition was granted as to the title Account Clerk Typist (Accounts Payable Clerk), Payroll Clerk, Transportation Coordinator, Duplicating Machine Operator and Media Associate/ Media Specialist. (ALJ Doerr, CP-874, 12/29/04)

NIAGARA FALLS HOUSING AUTHORITY PART-TIME EMPLOYEES UNION, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, AFL-CIO AND NIAGARA FALLS HOUSING AUTHORITY. A petition filed by the Niagara Falls Housing Authority Part-Time Employees Unit, AFSCME, seeking certification as the bargaining agent for a unit of two parttime employees, was granted over the Authority's assertions that the employees are casual and not covered and that a unit of two is inappropriate. While the Authority insisted upon an election, the petitioner was certified pursuant to §201.9(g)(1) of PERB's Rules of Procedure. (ALJ Doerr, C-5431, 10/5/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF MONROE. Per diem titles among those petitioned for by CSEA were found to be covered employees under the Act. The statistical analysis of hours worked per week and weeks worked per year, both for individual groupings of per diems by title, as well as an analysis of the group as a whole, revealed a continuity and regularity of employment evidencing the County's recurring need for the services of the per diem employees. (ALJ Doerr, C-5402, 10/18/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, VILLAGE OF FREDONIA UNIT 6313 OF LOCAL 807 AND VILLAGE OF FREDONIA. Where the unit clarification petition was unopposed, the contract referenced the at-issue titles in sections other than the recognition clause and the Village had deducted dues and remitted them to CSEA on behalf of employees encumbering positions, the titles of police dispatcher and code enforcement officer were found to be already encompassed within CSEA's bargaining unit. (ALJ Doerr, CP-952, 9/1/04)

JAMESTOWN CITY ADMINISTRATIVE ASSOCIATION AND CITY OF JAMESTOWN. A unit clarification petition, seeking determination as to whether the title of part-time assessor is in the unit represented by the Jamestown City Administrative Association, was granted, as the title of assessor is specifically listed in the unit definition; the unit placement portion of the petition was, therefore, dismissed. The City's claim that the title should be excluded due to managerial duties was rejected on procedural and substantive grounds. (ALJ Fitzgerald, CP-886, 9/9/04)

PORT WASHINGTON ASSOCIATION OF SCHOOL DISTRICT ADMINISTRATORS AND PORT WASHINGTON UNION FREE SCHOOL DISTRICT AND ASSOCIATION OF PUBLIC SCHOOL ADMINISTRATORS. The Port Washington Association of School District Administrators (Association) filed a petition seeking to represent a group of directors in a separate unit. The District opposed the petition and argued that the directors would be most appropriately included in an existing unit that included principals and assistant principals. The Association of Public School Administrators (APSA), which represents the principals, opposed the inclusion of the directors in its unit. The ALJ held that APSA's opposition did not affect the unit determination, since the two groups shared a community of interest and the formation of another, small, administrators' unit ran contrary to PERB's doctrine disfavoring the proliferation of units and preferring the largest unit permitting for effective negotiations. The ALJ rejected the District's argument that the petition be dismissed based upon the contract bar doctrine, since APSA's unit was open to challenge when the petition was filed and the collective bargaining agreement between APSA and the District was not ratified or signed until after the petition was filed. The directors were placed in the existing unit and, since the accretion created a significant change in the unit's composition, an election was ordered in the expanded unit. APSA's and the Association's participation in the election was held to be contingent upon their filing a statement indicating a willingness to represent the expanded unit and a showing of interest from that unit. (ALJ Blassman, C-5280, 6/29/04)

INTERNATIONAL ASSOCIATION OF EMTs AND PARAMEDICS, SEIU/NAGE, AFL-CIO AND COUNTY OF ALBANY AND SHERIFF. The petitioner's objection to the election based on the fact that five addresses on the employee list provided by the employer were not current or were incorrect was denied on a finding that the list was substantially accurate, all unit employees had access to the posted notices of election in which the procedures for the receipt of replacement ballots were detailed, and the petitioner had an opportunity to notify PERB of any inaccuracies in the list prior to the counting of the ballots, but did not do so. (Director Klein, C-5372, 7/20/04)

NASSAU COUNTY INVESTIGATORS POLICE BENEVOLENT ASSOCIATION, INC., AND COUNTY OF NASSAU AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, NASSAU LOCAL 830. The PBA's petition, seeking, pursuant to §207 of the Act, to fragment a group of investigator titles working for the District Attorney's Office of the County of Nassau from an existing CSEA unit, was granted on the ground that the investigators were engaged exclusively or primarily in the prevention and detection of crime and the enforcement of the general criminal laws of the State. (ALJ Blassman, C-5319, 8/12/04)

LOCAL 808, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA AND METROPOLITAN TRANSPORTATION AUTHORITY. The petition filed by Local 808, seeking placement of the position of Crime Analyst into its existing unit of clerical employees, was granted without objection by the MTA. (ALJ Blassman, CP-941, 6/16/04)

RENSSELAER, COLUMBIA AND GREENE COUNTIES BOCES TEACHERS ASSOCIATION AND BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF RENSSELAER, COLUMBIA AND GREENE COUNTIES. The ALJ held that adult and continuing education instructors are properly included in the petitioner's bargaining unit of teachers and other professional employees. (ALJ Quinn, CP-0878, 8/24/04)

SECURITY ASSISTANCE FOR EDUCATORS, TEACHERS AND YOUTH (SAFETY), NEW YORK STATE UNITED TEACHERS, AFT, AFL-CIO and GREECE CENTRAL SCHOOL DISTRICT and THE ASSOCIATION OF GREECE CENTRAL EDUCATIONAL PROFESSIONALS (AGCEP), NEW YORK STATE UNITED TEACHERS, AFT, AFL-CIO. A petition to certify SAFETY to represent a bargaining unit of security workers and security coordinator employed by the Greece Central School was dismissed and the titles were added to the non-instructional bargaining unit represented by the intervenor AGCEP. (ALJ Fitzgerald, C-5356, 4/6/04)

NEWBURGH ENLARGED CITY SCHOOL DISTRICT AND NEWBURGH TEACHERS ASSOCIATION, NYSUT AND CSEA, LOCAL 1000. The Association's unit clarification portion of its petition seeking to include teaching assistants in its unit of "professional, certified employees" was dismissed. The unit placement aspect of the Association's petition, however, was granted over the objection of both the District and CSEA. The District failed to show that the placement of the teaching assistants with the Association would cause programmatic disruption and its argument that individuals would be adversely affected by such placement was rejected as a felt community of interest argument: an inappropriate uniting criterion. CSEA's argument that teaching assistants perform the same or similar functions as aides was rejected as was its argument that teaching assistants are paraprofessionals and not professional employees. Similarly rejected was its argument that a unit clarification petition could not be used to fragment a unit, as the clarification aspect of the petition was dismissed on its merits and as the instant petition was filed soon after creation of the titles and within sixteen days of the District's recognition of CSEA as the bargaining agent for said titles. (ALJ Comenzo, CP-866, 5/3/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND SOUTHERN CAYUGA CENTRAL SCHOOL DISTRICT AND SOUTHERN CAYUGA CENTRAL SCHOOL TEACHERS ASSOCIATION. The ALJ determined that a school district's teaching assistants are most appropriately placed into a bargaining unit of teachers based upon their shared professional community of interest. In so concluding, the ALJ rejected the petitioner's assertion that the teaching assistants should be placed into its bargaining unit of non-instructional employees. (ALJ Quinn, CP-0905, 5/5/04)

CHENANGO VALLEY TEACHERS ASSOCIATION, NYSUT, AFT, AFL-CIO AND CHENANGO VALLEY CENTRAL SCHOOL DISTRICT. The ALJ determined that a school district's unrepresented psychologists are appropriately placed into a bargaining unit of teachers and guidance counselors as allied professionals who share a professional community of interest. (ALJ Quinn, CP-0922, 5/19/04)

COMSEWOGUE ADMINISTRATORS' ASSOCIATION AND COMSEWOGUE UNION FREE SCHOOL DISTRICT AND PORT JEFFERSON STATION TEACHERS' ASSOCIATION. The petitioner Association filed a certification/decertification petition seeking, in effect, to accrete the position of dean of students to its unit. The position had been placed in the unit represented by the Port Jefferson Station Teachers Association, the intervenor in this matter. The ALJ held that the petition was timely filed, and that the dean position had a greater community of interest with the Association than with the intervenor's unit and was the most appropriate unit. The ALJ found an election should be held among the employees in the unit found to be appropriate unless the Association submitted evidence to satisfy the requirement of certification without an election pursuant to the requirements of §201.9(g)(1) of PERB's Rules of Procedure. (ALJ Maier, C-5349, 1/22/04)

COUNTY OF ERIE AND SHERIFF OF ERIE COUNTY AND AFSCME, LOCAL 1095, COUNCIL 66, AFL-CIO AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000 AFSCME, AFL-CIO, ERIE UNIT OF LOCAL 815. Where the elected Sheriff of Erie County exercised substantial control over non-economic terms and conditions of employment and the County of Erie exercised control over the economic terms and conditions of employment, the Sheriff and the County were found to be joint employers of employees of the Sheriff. (ALJ Maier, C-5296 & C-5297 3/30/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND BATH MUNICIPAL UTILITY COMMISSION. CSEA's petition to place supervisory titles in the existing bargaining unit was granted where the evidence showed that the level of supervisory authority was mid-level at best, and that none of the supervisors were involved in collective bargaining, contract administration or policy formulation, or were privy to information regarding the Commission's contract proposals. Further, as the terms and conditions of employment of the supervisors tracked those granted unit employees in the parties' collective bargaining agreement, there was no disparity such that placement would be rendered inappropriate. The fact that the recognition clause in the collective bargaining agreement excluded supervisors was not availing as the petition sought unit placement and not unit clarification. (ALJ Doerr, CP-897, 2/11/04)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO AND MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY AND TRANSPORT WORKERS UNION LOCAL 106 (TRANSIT SUPERVISORS ORGANIZATION CAREER & SALARY UNIT), AND DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO. Where computer and telecommunications titles which were sought in a placement petition lacked a community of interest with titles in the existing units within the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA), the petition was dismissed. Although District Council 37 (DC 37) represented similar titles within the New York City Transit Authority, that is a separate legal entity from MABSTOA and the analysis is limited to existing units within MABSTOA. With respect to DC 37 and Local 106, even if a community of interest had been established, the number of employees to be accreted is greater than thirty percent of the existing units for each of those unions. As such, placement of the petitioned-for employees would be inappropriate as a matter of law. (ALJ Cacavas, CP-851, 2/24/04)

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Management / Confidential

MARATHON CENTRAL SCHOOL DISTRICT AND MARATHON ADMINISTRATORS ASSOCIATION. The District’s application pursuant to §201.10 of PERB’s Rules of Procedure seeking to designate Paulette Fry, Business Administrator, as managerial, was granted. The Association, which represents Fry, consented and the facts asserted in the application and supporting documents warranted the designation sought. (ALJ Doerr, E-2360, 12/14/04)

NORTH COLLINS CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. Where a Senior Account Clerk has a confidential relationship within the meaning of the Act, with the School Business Administrator in her performance of managerial responsibilities, a confidential designation is warranted. (ALJ Doerr, E-2351, 9/1/04)

VILLAGE OF OTISVILLE. The superintendent of public works was designated managerial on the consent of the employee in that title, who is not within a bargaining unit. (ALJ Comenzo, E-2332, 9/17/04)

WESTHAMPTON BEACH UNION FREE SCHOOL DISTRICT. The District's application to designate Lynn Stevens, a Senior Clerk Typist who reports to the Superintendent of Schools and the Assistant Superintendent for Personnel, as confidential in accordance with the criteria set forth in §201.7(a) of the Act, was granted with the consent of the Westhampton Beach Educational Clerical Employees' Association, UPSEU. (ALJ Blassman, E 2342, 6/2/04)

HAVERSTRAW-STONY POINT CENTRAL SCHOOL DISTRICT. The School District's application seeking to designate Carol Rooney, Senior Clerk-Typist, and Debra A. Viotto, Secretary I, as confidential under the criteria set forth in §207.1(a) of the Act was granted with the consent of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Local 844, North Rockland School Unit. (Director Klein, E 2343, 6/22/04)

MANHASSET PUBLIC LIBRARY. The ALJ granted an application seeking to designate Deanna Fleck, Administrative Assistant 1, as a confidential employee within the meaning of the Act. She was not in a bargaining unit, and consented to the designation sought. Since the job duties and responsibilities set forth in the application and supporting documentation may support such a designation it was, accordingly, granted. (ALJ Maier, E-2349 7/7/04)

SHENENDEHOWA CENTRAL SCHOOL DISTRICT. The ALJ designated Kathy LaFond , Assistant Employee Services Coordinator, as confidential on consent of the employee organization that represents the title, finding that such designation would best effectuate the purposes of the Act. (ALJ Quinn, E-2338, 7/20/04)

EAST HAMPTON UNION FREE SCHOOL DISTRICT. Where senior clerk and secretary to the assistant superintendent had confidential relationship to managerial employee in his performance of managerial responsibilities, confidential designation was warranted. (ALJ Cacavas, E-2348, 8/2/04)

ITHACA CITY SCHOOL DISTRICT. The ALJ designated a senior typist as confidential on consent of the union that represents the title, based upon the factual averments in the application. (ALJ Quinn, E-2339, 8/31/04)

BATH MUNICIPAL UTILITY COMMISSION. The only Senior Typist/Assistant in the Office of the Director of the Commission was designated confidential in accordance with the criteria set forth in §207.1(a) of the Act as the factual averments in the application and supporting documents justified the designation. The person so designated was unrepresented. (ALJ Doerr, E-2341, 5/11/04)

MINEOLA UNION FREE SCHOOL DISTRICT. Ulana Illiano, Administrative Assistant II, whose duties and responsibilities satisfied criteria set forth in §201.7(a) of the Act, was designated confidential. (ALJ Cacavas, E-2336, 5/17/04)

BRENTWOOD UNION FREE SCHOOL DISTRICT. The School District's application seeking to designate Maureen Rezza, the Senior Clerk Typist assigned to the Human Resources Coordinator, as confidential under the Act was granted with the consent of the Brentwood Clerical Association. (ALJ Blassman, E-2330, 1/20/04)

EAST MEADOW UNION FREE SCHOOL DISTRICT. Where the stenographic secretary assists and acts in confidential capacity to the assistant superintendent for human resources, a managerial position, designation as confidential pursuant to §201.7 of the Act was warranted. (ALJ Cacavas, E-2327, 3/3/04)

MINEOLA UNION FREE SCHOOL DISTRICT. Where the school district treasurer, senior stenographer (instructional personnel), senior stenographer (superintendent's office) and personnel clerk (noninstructional personnel) had a confidential relationship to managerial employees in their performance of managerial responsibilities, confidential designations were warranted. (ALJ Cacavas, E-2329, 3/23/04)

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Improper Practices

NAOMI M. VAUPELL AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO. The Director of Public Employment Practices and Representation (Director) dismissed a charge alleging that the District violated the Act by statements made during the course of civil court proceedings. The Director found such conduct to be beyond PERB’s jurisdiction. (Director Klein, U-25320, 11/8/04)

THEODORE STANLEY NASSIVERA AND WASHINGTON-SARATOGA-WARREN-HAMILTON-ESSEX BOCES AND SOUTHERN ADIRONDACK EDUCATIONAL ASSOCIATION AND NEW YORK STATE UNITED TEACHERS. The Director dismissed the charge, as amended, for failure to comply with procedural requirements of §204.1 of PERB’s Rules and for failing to establish any arguable violation of the Act. (Director Klein, U-25432, 11/10/04)

ALBANY PERMANENT PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 2007, I.A.F.F., AFL-CIO AND CITY OF ALBANY. The charge was deferred to the parties’ contractual grievance procedure as the Association has filed a grievance challenging the at-issue change of assignment. (ALJ Quinn, U-25139, 11/10/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND TOWN OF OTSEGO. The Director deferred the charge to the parties’ contractual grievance procedure, as CSEA had filed a grievance on the same facts as pled in the charge. (Director Klein, U-24852, 11/15/04)

JOYCE E. FEARON AND UNITED FEDERATION OF TEACHERS. The Director dismissed the charge as untimely. (Director Klein, U-25422, 11/15/04)

HEWLETT-WOODMERE ADMINISTRATIVE AND SUPERVISORY ASSOCIATION AND HEWLETTWOODMERE UNION FREE SCHOOL DISTRICT. The ALJ dismissed the charge which alleged that the District violated §209-a.1(d) of the Act when it unilaterally implemented a work rule prohibiting unit members who supervise teachers from engaging in privately compensated tutoring or other compensated services during non-working time for the students taught by those same teachers. The ALJ found that the work rule was a matter of first impression, and accordingly engaged in a balancing of the union’s and District’s interests. The District asserted that the rule was designed to avoid a conflict of interest, or the appearance thereof. The union asserted that the employee interests involved the use of their duty free time. The union did not assert that there were any other less intrusive means available by which the District could achieve its goal. Based upon New York State Thruway Authority, 21 PERB ¶3058 (1988), in which the Board found that the employer interest in avoiding the appearance of impropriety outweighed the employee interest, the charge was dismissed. (ALJ Maier, U-24718, 11/16/04)

JACQUELINE MURPHY AND COUNTY OF ERIE AND NEW YORK STATE NURSES ASSOCIATION. The charge alleging a violation of §209-a.2(c) of the Act was dismissed for failure to establish that the complained of conduct was arbitrary, discriminatory or in bad faith. (ALJ Kaufman, U-24710, 11/18/04)

DANIEL DERMODY AND JOSEPH BORRUSSO AND NEW YORK CITY TRANSIT AUTHORITY. The Director dismissed the charge alleging that the employer breached its collective bargaining agreement and rules because it was beyond PERB’s jurisdiction. (Director Klein, U-25493, 11/24/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND WASHINGTONVILLE CENTRAL SCHOOL DISTRICT. The charge was deferred to the parties’ contractual grievance procedure as the Association has filed a grievance challenging the at-issue change of assignment. (ALJ Comenzo, U-24675, 11/26/04)

HAVERSTRAW VILLAGE POLICEMEN’S BENEVOLENT ASSOCIATION AND VILLAGE OF HAVERSTRAW. The Director dismissed the charge because it appeared untimely and it did not comply with other procedural requirements of the Rules. (Director Klein, U-25431, 11/30/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, NASSAU LOCAL 830 AND COUNTY OF NASSAU. The County violated the Act when it unilaterally ceased the practice of assigning take-home vehicles to eight employees working for the County’s Department of Public Works (DPW). The record demonstrated that the employees, and some of their predecessors in title, had been assigned a take-home vehicle for a period of years. The required proof of the employer’s consent to the practice, as required by County of Nassau, 37 PERB ¶3014 (2004), was satisfied by evidence that the assignments were ultimately approved by DPW’s Commissioner. The County’s argument that the employees no longer satisfied a condition attached to their vehicle assignment was rejected for failure of proof. The record did not demonstrate that a specific travel requirement was initially attached to the employees’ vehicle assignments or that there had been a significant change in the employees’ travel requirements so as to demonstrate that they no longer met such a condition. (ALJ Blassman, U-24219, 12/3/04)

MALONE CENTRAL SCHOOL DISTRICT AND MALONE FEDERATION OF TEACHERS, LOCAL 2808, NYSUT, AFT, AFL-CIO. The Malone Federation of Teachers, Local 2808 violated the Act when it refused to negotiate until PERB ruled upon the legality of the District’s reliance on a moratorium imposed by the health insurance consortium on constituent districts’ bargaining with regard to health insurance contributions (U-24325). The refusal to bargain was unequivocal and further bargaining was predicated upon a condition precedent. Although the charge against the District was dismissed as it, at all times, expressed a willingness to return to the table, the ALJ addressed its reliance on the moratorium as the basis for its refusal to bargain insurance issues with the Association; as was its premise that so long as members continued to receive benefits from the Consortium the Association was bound by the moratorium on bargaining. The ALJ found that other issues relating to health insurance, including negotiations for an alternative means of providing health insurance for current employees, could be negotiated notwithstanding the moratorium. The ALJ also noted that, by viture of §209-a.1(e) of the Act, members continued to receive consortium benefits not by any agreement. (ALJ Doerr, U-24325 & U-24350, 12/6/04)

MUTUAL AID ASSOCIATION OF THE PAID FIRE DEPARTMENT OF THE CITY OF YONKERS, LOCAL 628, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS AND CITY OF YONKERS. The charge was deferred to the parties’ contractual grievance procedure as the Association has filed a grievance on the same facts as pled in the charge. (ALJ Comenzo, U-25287, 12/9/04)

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 704 AND CITY OF YONKERS AND YONKERS PUBLIC LIBRARY. The charge was deferred to the parties’ contractual grievance procedure as SEIU has filed grievances on the same facts as pled in the charge. (ALJ Comenzo, U-25313, 12/9/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF WESTCHESTER. An administrative law judge issued a merits-deferral decision on the ground that a grievance should be processed through the parties’ expired contractual grievance procedure which ends in binding arbitration. (ALJ Quinn, U-25083, 12/9/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. CSEA’S charge, alleging that the County violated §209-a.1(d) of the Act, when it announced its unilateral decision to remove plexiglass partitions from certain work sites, which would affect worker safety, was deferred to the contractual grievance mechanism upon the parties’ consent. (ALJ Blassman, U-25197, 12/10/04)

NYS CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The ALJ determined that the amount of permissible items that employees may bring to their work stations, and the containers in which to carry them, are mandatorily negotiable terms and conditions of employment. Accordingly, the ALJ concluded that the employer’s unilateral alteration of a practice regarding those subjects violated the Act. In so concluding, the ALJ rejected the employer’s waiver-by-silence defense, finding insufficient evidence of a knowing and intentional release of the employer’s duty to negotiate. (ALJ Quinn, U-24704, 12/13/04)

UNITED TRANSPORTATION UNION – LOCAL 1440 AND STATEN ISLAND RAPID TRANSIT OPERATING AUTHORITY. The Director dismissed the charge alleging a breach of a settlement agreement for lack of jurisdiction and timeliness. (Director Klein, U-25535, 12/16/04)

PHYLLIS RUGGIERO, ET AL. AND MAHOPAC CENTRAL SCHOOL DISTRICT. The Director dismissed the charge, because individual employees lack standing to allege a failure to bargain and PERB does not recognize class action charges. (Director Klein, U-25541, 12/17/04)

PROFESSIONAL STAFF CONGRESS—CITY UNIVERSITY OF NEW YORK AND CITY UNIVERSITY OF NEW YORK. CUNY was found to have violated §209-a.1(a) of the Act when it directly negotiated an agreement with a unit employee that included terms and conditions of employment different from the collective bargaining agreement. The charge was found to be timely, although filed more than a year after the agreement was executed, since the PSC had no knowledge of the agreement until the employee’s employment was terminated. (ALJ Blassman, U-23958, 12/22/04)

COUNTY OF ERIE AND ERIE COMMUNITY COLLEGE, AFSCME, NEW YORK COUNCIL 66, LOCAL1095, AFLCIO AND FACULTY FEDERATION OF ERIE COMMUNITY COLLEGE, NEA, NEW YORK. Following the first day of hearing, adjourned sine die to allow the parties to explore a settlement of the underlying issues, the ALJ was notified by AFSCME that several grievances on the same issue had been filed and were processed. Over the Employer's objection, the case was conditionally dismissed subject to a motion to reopen should the Employer interpose objections to the arbitrability of the grievances or should a resulting award not satisfy the criteria for deferral as set forth in New York City Transit Authority (Bordansky), 4 PERB 3031 (1971) (ALJ Doerr, U-23328, 9/1/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 830, AFSCME, AFL-CIO AND COUNTY OF NASSAU. CSEA's charge, alleging that the County violated §209-a.1(d) of the Act when it unilaterally changed the past practice of providing take-home vehicles to certain unit employees working for the County's Department of Parks, Recreation, and Museums, was dismissed. Although the record demonstrated the existence of a long-standing practice as to most of the positions in-issue, the charge was dismissed for failure to prove, pursuant to the Board's recent decision in County of Nassau, 37 PERB 3014 (2004), that the practice as to any of the employees had been authorized by a high level County representative. (ALJ Blassman, U-24202, 9/1/04)

MYRJA ROSADO and NEW YORK CITY TRANSIT AUTHORITY. The ALJ dismissed a charge alleging a violation of §§209-a.1(a) and (c) of the Act when Rosado was not transferred back to the day shift because of the filing of a grievance. The ALJ found that she was engaged in protected activity, and that her supervisor was aware of the activity. He found, however, that the failure to transfer her back to the day shift was unrelated to this activity. Rosado had been transferred for legitimate business reasons and requested to return to the day shift because she needed to care for her grandmother. She testified that she was advised by both her union representative and supervisor that, upon presenting documentation to this effect, she would be returned and in the interim filed a grievance. The ALJ credited the supervisor, finding that she was transferred to the day shift for legitimate reasons, and that it was not credible to believe that her supervisor told her she would be transferred back to the day shift if she presented this evidence. The ALJ further found that the NYCTA did not have a policy to return employees to a particular shift in matters such as these. Accordingly, the charge was dismissed. (ALJ Maier, U-24695, 9/8/04)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 17-17S AND BUFFALO MUNICIPAL HOUSING AUTHORITY. The improper practice charge was deferred to the grievance procedures of the parties' expired contract when the union alleged that the employer violated §§209-a.1(d) and (e) of the Act by failing to pay wage step increments and longevity payments as provided for in the agreement. The employer alleged it was barred from making such payments by action of the Buffalo Fiscal Stability Authority. (ALJ Kaufman, U-25198, 9/9/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. The ALJ found that the County violated §209-a.1(d) of the Act when it changed the past practice of assigning a County vehicle with take-home privileges to the Supervisor of Fleet Services at the County's Sheriff Department. The ALJ found the practice had been long established and was authorized by the County. The record showed that the practice had been known to, and approved by, the Deputy Under-Sheriff and Sheriff. Nor did a difference in civil service titles between the retired Fleet Services Supervisor and the new Supervisor, or the County's failure to officially appoint the new Supervisor to the title of Fleet Services Supervisor, nullify the practice, since the record was clear that the new Supervisor was performing substantially all of the duties of the retired Supervisor. The County's timeliness defense was rejected, since there was no record evidence that CSEA representatives had seen a notice regarding the refusal to assign a vehicle to the new Supervisor posted in the garage. Timeliness did not begin to run until CSEA knew of the County's refusal to assign the employee a vehicle. (ALJ Blassman, U-24054, 9/8/04)

MOHAMMED SAIDIN AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ dismissed Saidin's charge that the UFT breached its duty of fair representation, under §209-a.2(c) of the Act, when it refused, without explanation, his request to raise certain contractual violations during a grievance arbitration. The ALJ credited the testimony of a UFT representative that he and other UFT representatives had repeatedly explained the reasons for refusing to raise the contractual sections that Saidin wanted raised. The ALJ found that the record did not support a finding that the UFT had acted arbitrarily, discriminatorily, or in bad faith. (ALJ Blassman, U-24198, 9/14/04)

ONEIDA COUNTY SHERIFF'S DEPARTMENT EMPLOYEES LOCAL 1249, NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO AND COUNTY OF ONEIDA AND ONEIDA COUNTY SHERIFF. The ALJ deferred the merits of a dispute to the grievance procedure provided in the parties' expired collective bargaining agreement. (ALJ Quinn, U-24896, 10/8/04)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - COLLINS CORRECTIONAL FACILITY). A charge that the employer had unilaterally ceased assigning certain officers by seniority was dismissed as the record indicated that as to one type of assignment no change had been made and as to the other that seniority had never been consistently and unequivocally the only assignment criterion. (ALJ Comenzo, U-23049, 10/14/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., ASFSCME, AFL-CIO, ERIE COUNTY UNIT OF LOCAL 815 AND COUNTY OF ERIE. A charge alleging a violation of §209-a.1(d) of the Act was dismissed due to a lack of timeliness and the failure to demonstrate that the transferred duties to nonunit psychiatrists within the County Hospital's Department of Rehabilitative Medicine were exclusive bargaining unit work. (ALJ Kaufman, U-23448,10/22/04)

PROFESSIONAL STAFF CONGRESS - CITY UNIVERSITY OF NEW YORK AND CITY UNIVERSITY OF NEW YORK. The ALJ dismissed two charges filed by the union which alleged that CUNY violated §209-a.1(d) of the Act by entering into an individual employment contract with an employee, and by firing him in retaliation for the filing of the first charge in violation of §§209-a.1(a) and (c) of the Act. Initially, addressing CUNY's assertion that the fact that the employee was paid by a private entity did not divest the Board of jurisdiction since the source of funds is not dispositive on the jurisdictional issue raised by the employer. With regard to the first charge, the ALJ held that the employee was not in the unit and therefore CUNY cannot be in violation of the Act for directly dealing with a unit employee. The employee did not pay dues or agency fees, his title was not listed in the recognition clause, and he admittedly was not in the unit. The ALJ also dismissed the charge alleging that the employee was fired in retaliation for protected activity. While the employee was engaged in protected activity, the financial concerns which gave rise to his termination were under consideration prior to his involvement with such activity. Additionally, there was no basis to conclude that the Dean was aware that the charge was filed when she decided to terminate the employee. (ALJ Maier, U-24320 & U-24343, 10/25/04)

TRANSPORT WORKERS OF AMERICA, LOCAL 100, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. An improper practice charge alleging that the NYCTA violated §§209-a.1(a) and (c) of the Act was dismissed for the union's failure to establish a prima facie case. The ALJ held that the circumstance of timing alone was insufficient to establish a showing that but for the member's protected activity, the adverse action would not have occurred. Even if the motion to dismiss, made at the close of the union's presentation of its case, had not been granted, the charge would have been dismissed based on the employer's having shown that its action was motivated by a legitimate business decision. (ALJ Cacavas, U-24456, 10/29/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND VILLAGE OF FREEPORT. CSEA filed a charge alleging that the Village interfered with its right to choose its own representative to attend a disciplinary hearing when the Village refused to grant CSEA's request for a one day adjournment of scheduled hearings. The adjournment would have permitted the appearance of a Labor Relations Specialist (LRS) instead of the local CSEA representative. The evidence showed that the employees are contractually entitled, as of right, to no more than two hours notice of such hearings and that the Village had given the employees 21 hours notice. There was no record evidence that the regular practice of the Village was to grant additional time or adjournments in other circumstances. The charge was dismissed for failure to prove that the Village's refusal to grant the adjournment was motivated by an intent to prevent the LRS from attending or that the Village's actions were so inherently destructive of employees' §202 rights as to raise a presumption in favor of a violation. (ALJ Blassman, U-23769, 6/2/04)

PATRICIA M. NUWER AND NEW YORK STATE UNITED TEACHERS AND HOLLAND CENTRAL SCHOOL DISTRICT. A charge alleging a violation of §209-a.2(c) of the Act was dismissed for failure to name the proper respondent, lack of timeliness and lack of facts as would establish the complained of conduct as being arbitrary, discriminatory or in bad faith. (Director Klein, U-24999, 6/10/04)

MALVERNE TEACHERS' ASSOCIATION AND MALVERNE UNION FREE SCHOOL DISTRICT. The ALJ dismissed a charge alleging that the District violated §209-a.1(d) of the Act when it discontinued the past practice of giving the union the profits and receipts from vending machines that were placed in an employee-controlled fund. The ALJ found that the source from which a union receives funds is not a mandatory subject of bargaining. The manner by which an employer determines how to fund a specific employee benefit is a management prerogative closely related to the manner and means by which an employer chooses to deliver services to the public. Finding that the charge did not allege that the funding itself was in issue, and that the charge did not allege that the vending machines were removed in violation of the Act, the charge was dismissed. (ALJ Maier, U-24532, 6/17/04)

AFSCME COUNCIL 66, LOCAL 1095, AFL-CIO, ERIE COUNTY BLUE COLLAR EMPLOYEES UNION AND COUNTY OF ERIE AND ERIE COMMUNITY COLLEGE. In an interim decision, the defense raised by the County of Erie/Erie Community College (ECC) that it is not responsible for subcontracting unit work where the subcontracting was done by the Auxiliary Services Corporation of Erie Community College (ASC), was dismissed, on the finding that ECC has retained control over all maintenance and capital improvements on its property, including the premises on which ASC is licensed to operate student services. (ALJ Fitzgerald, U-24477 & U-24512, 6/23/04)

CORRECTION OFFICERS BENEVOLENT ASSOCIATION OF ROCKLAND COUNTY AND COUNTY OF ROCKLAND AND ROCKLAND COUNTY SHERIFF. With exclusivity the only issue in this transfer of unit work charge, it was determined that, while the specific task had not previously been performed by anyone other than a bargaining unit member, said task was incidental to related duties already being performed by non-unit personnel. (ALJ Comenzo, U-23897, 6/28/04)

MONROE COUNTY AIRPORT FIREFIGHTERS, IAFF, LOCAL 1636, AFL-CIO AND COUNTY OF MONROE. The charging party alleged that the County violated §§209-a.1(d) and (e) of the Act by unilaterally modifying health insurance options available to unit employees. The charge was conditionally deferred to the parties' grievance procedure contained in its expired contract, pursuant to the criteria set forth in New York City Transit Authority (Bordansky) 4 PERB 3031 (1971). (ALJ Kaufman, U-25060, 6/29/04)

CHEEKTOWAGA POLICE CLUB, INC. AND TOWN OF CHEEKTOWAGA. Upon findings that a mere incorrect assertion contained in a response to a compulsory interest arbitration petition, together with proposed changes that could not become effective on account of a time element, the Director dismissed a §209-a.1(d) charge for failure to arguably establish a failure to bargain. (Director Klein, U-24899, 6/29/04)

NEW YORK CITY TRANSIT AUTHORITY AND TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO. The ALJ dismissed a charge alleging a violation of §§209-a.1(a) and (c) of the Act because the NYCTA denied his request for a union representative during an investigation of his job performance. The ALJ concluded that the employee did not make a request for representation, and that such a request is essential to establish the right to a union representative during investigatory interview which may lead to discipline. Accordingly, the charge was dismissed. (ALJ Maier, U-24502, 7/1/04)

MIRIAM P. ANWULUORAH AND UNITED FEDERATION OF TEACHERS. The charge alleging that the UFT violated §209-a.2(c) of the Act was dismissed as not being in procedural compliance with the Rules, as well as lacking in facts to establish a prima facie violation. (Director Klein, U-25014, 7/16/04)

SARA-ANN P. FEARON AND THE UNITED FEDERATION OF TEACHERS AND THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. No breach of the duty of fair representation was found where the UFT refused to take the charging party's grievance to step three of the negotiated grievance procedure and failed to provide reasons for its decision. A charging party's mere disagreement with a union's declination to proceed with a grievance does not violate the Act. In addition, where there is no evidence to establish that the union's position was arbitrary, discriminatory or taken in bad faith, the failure of the union to provide reasons for its decision does not create a prima facie case for the breach of the duty of fair representation. (ALJ Cacavas, U-23556, 7/16/04)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ held that the Authority violated §§209-a.1 (a) and (c) of the Act when it prohibited a probationary employee from calling his TWU representative. Although an employer may restrict the use of telephones, it may not do so discriminatorily, allowing employees to freely place personal calls, while prohibiting calls to the employees' bargaining agent. The remedy did not include an order restoring the probationary employee's employment, since the employee had violated his supervisor's direct order not to call the TWU and had been discharged for insubordination. Unless a health or safety emergency is present, an employee's obligation is to comply with a supervisor's order and to challenge it later, through appropriate channels. The Authority's defense, that the charge is deficient because it was verified by the TWU's attorney, who did not have personal knowledge of the matter, was dismissed, since PERB's Rules permit attorney verification on information and belief on behalf of a client. (ALJ Blassman, U-23863, 7/20/04)

MONROE COUNTY SHERIFF POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF MONROE AND SHERIFF OF MONROE COUNTY. The charging party alleged that the County violated §209-a.1(e) of the Act by unilaterally modifying health insurance options available to unit employees. The charge was conditionally deferred to the parties' grievance procedure contained in its expired contract, pursuant to the criteria set forth in New York City Transit Authority (Bordansky), 4 PERB 3031(1971). (ALJ Kaufman, U-25113, 7/23/04)

LONG BEACH CITY SCHOOL DISTRICT. The ALJ dismissed a charge alleging a violation of §§209.a1(a) and (c) of the Act which alleged that the District failed to reappoint Wendi Klein as the high school department chairperson because of her grievance activity. The ALJ found that though she was engaged in protected activity, and that the District was aware of this activity, its failure to reappoint her was not related to her protected activity. The Distinct had long sought to have a different person fill the position, which would be consistent with its policy throughout the system. Accordingly, the charge was dismissed. (ALJ Maier, U-23639, 7/23/04)

ORANGE COUNTY DEPUTY SHERIFF'S POLICE BENEVOLENT ASSOCIATION AND COUNTY OF ORANGE AND ORANGE COUNTY SHERIFF. The improper practice charge alleging that the respondent violated §209-a.1(d) of the Act when it unilaterally implemented leave and attendance policies was deferred to the grievance procedure of the parties' collective bargaining agreement, it having appeared at the pre-hearing conference that a contract grievance was filed on the same facts. (Asst. Director Barsamian, U-25066, 7/29/04)

PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF BEACON AND CITY OF BEACON. The charge was deferred to the parties' contractual grievance procedure as the Association has filed grievances related to the charge. (ALJ Comenzo, U-24315, 8/2/04)

AMALGAMATED TRANSIT UNION LOCAL 1056, AFL-CIO AND RODNEY EUGENE. The ALJ dismissed the charge filed by Eugene which alleged that ATU breached its duty of fair representation under the Act by failing to represent him properly in an arbitration proceeding. Specifically, Eugene alleged that ATU failed to introduce certain evidence and call certain witnesses on his behalf, and that it placed several obstacles before him that compromised his safety. The ALJ dismissed the charge on the basis of motions at the close of Eugene's case made by ATU and the Authority. The ALJ held that, viewing the evidence most favorably to Eugene, there was no proof that the union acted in an arbitrary, discriminatory or bad faith manner. Eugene did not offer any evidence upon which a conclusion can be based that he was treated differently than any other unit member. ATU represented Eugene in a professional and diligent fashion, as shown by evidence that it had evaluated and introduced during the arbitration proceeding, interviewed and the subpoenaed witnesses, and investigated the facts of the case. Accordingly, the charge was dismissed. (ALJ Maier, U-24472, 8/4/04)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The ALJ dismissed an improper practice charge concerning the unilateral termination of a practice of pre-approving paid leave for unit employees to attend scheduled medical appointments. The subject of the practice is not mandatorily negotiable because it is fundamentally a staffing determination. Even if the subject were mandatorily negotiable, according to the ALJ, the charging party had not adduced evidence establishing that the practice was authorized or acquiesced in by the employer's Chief Executive Officer or his designated bargaining representative, nor evidence that the practice was terminated by such individuals. In dicta, the ALJ observed that he would find that the practice did not have to be unit-wide in order to trigger a bargaining obligation. (ALJ Quinn, U-24120, 8/6/04)

PAID FIREMEN'S ASSOCIATION OF PEEKSKILL, NEW YORK, INC., AND CITY OF PEEKSKILL, NEW YORK. Upon a finding that there is a grievance pending in a charge alleging that the City violated §209-a.1(d) of the Act when it appointed a firefighter to a coordinator position in a manner contrary to past practice, the charge was dismissed subject to a motion to reopen should an arbitrator's award not satisfy the criteria for deferral set forth in New York City Transit Authority (Bordansky), 4 PERB 3031 (1971). (Asst. Director Barsamian, U-25091, 8/27/04)

CALVIN CUAVERS AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The charge alleging a violation of §209-a.2(c) of the Act was dismissed as being untimely and not being in compliance with procedural requirements of §204.1 of PERB's Rules relating to number of copies and attestation of the charge. (Director Klein, U-25026, 8/30/04)

JOSEPH ROTHSTEIN 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. Rothstein alleged that the UFT breached its duty of fair representation when it entered into a settlement agreement never intending to fulfill its terms. Where, however, the UFT expressly performed that which the settlement agreement required of it, no violation was found. That Rothstein interpreted the agreement to require the UFT to file a special complaint on his behalf was irrelevant where the terms of the agreement merely required the UFT to meet with him and make a determination as to whether the complaint should be pursued. Further, to the extent that Rothstein argues that the UFT entered into the agreement in bad faith because it ultimately refused to process his special complaint, that claim is well beyond the pleadings in the charge. Finally, even if such had been pled, Rothstein's mere disagreement with the UFT's conclusion is not sufficient to evidence a violation of the Act. Even negligence by the UFT in reaching that determination would not satisfy Rothstein's burden of proof. (ALJ Cacavas, U-24052, 4/1/04)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The TWU's charge, alleging that the Authority violated §209-a.1(d) of the Act when it unilaterally increased the number of step II disciplinary calendars held each week and scheduled the hearings at a different location, was dismissed. The ALJ held that no unilateral change had occurred since the Authority's actions were contractually permitted. Although the CBA did not specifically address the issue of the number of hearings to be held, the ALJ found that the CBA's terms implicitly granted the Authority the right to schedule a sufficient number of hearings as is reasonably required to comply with the CBA's detailed negotiated time limitations. In interpreting the CBA, the ALJ considered an arbitration award similarly interpreting the CBA. As to the location of the step II hearings, the ALJ held that the CBA's silence was an insufficient basis upon which to find that the issue had been negotiated, but that the Authority's action was contractually permitted based upon an arbitration award that interpreted the CBA as granting the Authority all rights "attendant to disciplining employees, including scheduling." (ALJ Blassman, U-23864, 4/6/04).

VICTOR MALTSEV AND CIVIL SERVICE TECHNICAL GUILD, LOCAL 375, DISTRICT COUNCIL 37, AFSCME AND NEW YORK CITY TRANSIT AUTHORITY. A charge alleging a declination to process a grievance to arbitration was dismissed as lacking facts sufficient to establish a violation of §209-a.2(c) of the Act. (Director Klein, U-24927, 4/7/04)

UNITED UNIVERSITY PROFESSIONS, NYSUT, AFT LOCAL 2190, AFL-CIO, AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK AT BUFFALO). Having confirmed that grievances are pending on the same issue, and that the grievance procedure in the parties' expired collective bargaining agreement ended in binding arbitration, a charge alleging a violation of §209- a.1(d) of the Act in the matter of certain changes promulgated by the Chancellor was dismissed subject to a motion to reopen on the grounds set forth in New York City Transit Authority (Bordansky), 4 PERB 3031 (1971). (Asst. Director Barsamian, U-24744, 4/8/04)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 650, AFL-CIO AND CITY OF BUFFALO. A charge alleging a violation of §209-a.1(d) of the Act by the employer for unilaterally imposing restrictions on the granting of days off was deferred to the parties' grievance procedure under Herkimer County BOCES, 20 PERB 3050 (1987). (ALJ Kaufman, U-24945, 4/26/04)

POLICE BENEVOLENT ASSOCIATION VILLAGE OF HUNTINGTON BAY AND VILLAGE OF HUNTINGTON BAY. The ALJ found that the Village violated §209-a.1(d) of the Act by refusing to bargain concerning a contractual clause requiring all employees to retire after twenty years of service, but dismissed that portion of a charge which alleged that the Village refused to bargain concerning proposals related to part-time employees. The collective bargaining agreement provided that the union and employees waived all rights to continued employment with the Village after service of twenty years. The Union sought to bargain concerning this clause, and the Village refused to do so. Waiver clauses are mandatory subjects of bargaining, and the substance of the demand is contained in the same clause as the waiver language. The demand encompassed both the waiver and substantive demand, and the failure to bargain was violative of the Act. The ALJ dismissed the demand related to the part-time employees, however, since the practice between the parties did not show that the parties ever consider part-time employees to be within the unit. The practice between the parties was relevant since the recognition clause was broad thereby necessitating a review of how the parties treated the title in issue. (ALJ Maier, U-24150, 4/27/04)

GREENBURGH UNIFORMED FIREFIGHTERS ASSOCIATION, INC., LOCAL 1586, IAFF, AFL-CIO AND HARTSDALE FIRE DISTRICT. The ALJ held that the District violated §§209-a.1(a) and (c) of the Act by counseling a union official for being three minutes late in performing a communications test because he was performing union duties. Although the official failed to obtain prior approval to engage in union activities during working hours as required by the parties' collective bargaining agreement, it was undisputed that the official would not have been counseled had he not been late due to his union activities as an officer of the union. According to the ALJ, absent prior approval, the union official's union activity during working hours is situated no differently than any other unauthorized activity that interferes with a scheduled task. Because he would not have been counseled had he not been engaged in protected activities, the ALJ held that the disparate treatment violated the Act. (ALJ Quinn, U-24197, 5/7/04)

CORTLAND ONONDAGA MADISON BOCES ORGANIZATION, NYSUT, AFT LOCAL 3829 AND ONONDAGA CORTLAND MADISON BOCES. BOCES was found to have violated §209-a.1(d) of the Act when it failed to bargain a change in work year from 12 months to 10 months for employees in the title of systems consultant. As the services of the systems consultants were, in fact, required for 12 months as evidenced by the need to hire them on a per diem basis for July and August, no change in the level of service had occurred. (ALJ Doerr, U-24484, 5/18/04)

UNITED UNIVERSITY PROFESSIONS, NYSUT, AFT LOCAL 2190, AFL-CIO AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK AT BUFFALO). A charge that the State violated §209-a.1(d) of the Act by requiring members of the professional services unit to adopt certain conditions of clinical practice was deferred to the parties' grievance mechanism. (Asst. Director Barsamian, U-24972, 5/18/04)

EAST MEADOW TEACHERS ASSOCIATION SCHOOL RELATED PERSONNEL UNIT, NYSUT, AFT, AFL-CIO AND EAST MEADOW TEACHERS' ASSOCIATION, NYSUT, AFT, AFL-CIO AND EAST MEADOW UNION FREE SCHOOL DISTRICT. The ALJ dismissed two charges filed by separate unions alleging violations of §209-a.1(d) of the Act. One charge, filed by the School Related Personnel Association, which represents the title Intervention Assistants, alleged that the work of instruction to kindergarten children in art, music, physical education, and library was assigned to unit members, and that this work was not within the inherent nature of their job duties. In the companion charge, the Teachers' Association alleged that the assigned work mentioned above was unilaterally transferred from its unit to the intervention assistants. The ALJ concluded, however, that the work in issue had not previously been performed by the unit representing the teachers and thus there was no unilateral transfer of the work in issue. Additionally, the assigned work was consistent with the duties performed by the intervention assistants. Accordingly, the charges were dismissed. (ALJ Maier, U-23888 & U-23959, 5/20/04)

ALLEGANY COUNTY DEPUTY SHERIFFS ASSOCIATION, LOCAL 3989, COUNCIL 82, AFSCME, AFL-CIO and COUNTY OF ALLEGANY AND SHERIFF OF ALLEGANY COUNTY. An improper practice charge, alleging that the County and Sheriff violated the Act by eliminating the position of a unit employee who had complained to the union regarding a transfer of a portion of her duties, was dismissed. The position at issue was one of four administrative positions eliminated from the Department by the Legislature, on the Sheriff's recommendation, for purposes of addressing a budget deficit, and there was no evidence linking the elimination of the position at issue to the filing of the improper practice charge. ( ALJ Fitzgerald, U-24247, 5/21/04)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The State's conditioning of the approval of two employees' request for sick leave of four hours or less on receipt of medical documentation was found to be a unilateral change in a term and condition of employment in violation of §209-a.1(d) of the Act. (ALJ Comenzo, U-23790, 5/21/04)

STATE OF NEW YORK AND POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. A charge alleging a violation of §209-a.2(b) of the Act was dismissed for the reasons that it is not improper to seek a recommendation from a fact finder on a non-mandatory subject, absent prior objections, and that the at-issue demands were submitted beyond the period of limitations set forth in Part 204 of the Rules. (Director Klein, U-24564, 1/7/04)

NEW YORK STATE THRUWAY EMPLOYEES, TEAMSTERS LOCAL 72 AND NEW YORK STATE THRUWAY AUTHORITY. The charge was deferred to the parties' contractual grievance procedure as the Teamsters filed contractual grievances on the same facts as pled in the charge. (ALJ Comenzo, U-24119, 1/9/04)

SOUTHAMPTON TOWN PUBLIC SAFETY BENEVOLENT ASSOCIATION AND TOWN OF SOUTHAMPTON AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. In a prior proceeding, the PBA sought to fragment dispatcher titles from an overall unit represented by CSEA and to represent them in a separate unit. The PBA then filed the subject charges against the Town and CSEA alleging that they violated the Act by ratifying, over the PBA's objection, a collective bargaining agreement (CBA) affecting the dispatchers during the pendency of the representation petition. The charge against the Town was dismissed for failure to prove a prima facie case, since the stipulated record included no evidence supporting the allegation that the Town ratified any CBA. It was alternatively dismissed for the same reasons as the charge against CSEA. The charge against CSEA was dismissed because the agreement it submitted for a ratification vote to its membership did not include any terms or conditions that affected the dispatchers. The agreement ratified implemented raises for all unit employees, except the dispatchers. Nor did CSEA act inappropriately when it excluded the dispatchers from the ratification vote. The Town's waiver defense was dismissed for failure to plead the factual basis upon which it rested. (ALJ Blassman, U-24049 & U-24050, 1/12/04)

VILLAGE OF HEMPSTEAD AND CIVIL SERVICE EMPLOYEES ASSOCIATION, AFSCME, LOCAL 1000. The ALJ held that the Village violated §209-a.1(d) of the Act when it entered into and gave effect to an improper parity clause that it had agreed to with the Police Benevolent Association of Hempstead, Inc. (PBA). Pursuant to this clause, the PBA was entitled to receive health or dental benefits that would be received by any other unit in the Village. The Village had negotiated with the CSEA to improve health, dental and optical benefits, but refused to agree to enter into an agreement with the CSEA. The basis of the failure to enter into the agreement was that the Village would then also be obligated to grant such benefits to the PBA. Based upon Plainview Old Bethpage Central School, 17 PERB 3077, aff'd 17 PERB 7022 (Sup. Ct. Nassau County) the ALJ found the clause in issue to be an improper parity clause, and ordered the Village to cease giving effect to such clause and not to enter into such agreements with the PBA. (ALJ Maier, U-23670, 1/12/04)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). A charge alleging that the State violated §209-a.1(d) of the Act, when it changed a shift designation so as to alter a work schedule at Lincoln Correctional Facility, was conditionally dismissed upon a finding that there is a grievance pending on the same issue. (Asst. Director Barsamian, U-24702, 1/16/04)

AMALGAMATED TRANSIT UNION DIVISION 726, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. The ATU alleged that the NYCTA engaged in a pattern of threats and retaliation against a union representative, Frank O'Connor, where it assigned a supervisor to watch him daily on his shift. The ALJ dismissed that aspect of the charge on the basis that there was no established nexus between the NYCTA's actions and O'Connor's protected activity. Further, the employer proved that its decision to closely supervise O'Connor was initially based on a safety concern and then on the supervisor's determination that O'Connor was wasting time on the job. When O'Connor was thereafter disciplined for low production, retaliation again was not found since the ATU failed to show that "but for" his protected activity, the discipline would not have been imposed. Rather, the employer established that O'Connor's productivity slowed in response to the close supervision and that the NYCTA acted directly in response to that. Regarding the ATU's claims that certain remarks made to O'Connor were threatening, that, too, was dismissed by the ALJ, on the basis that the remarks were either personal in nature or not expressly threatening in the context in which they were made. A violation was also not found where a supervisor threatened to "shove [a] job pick" down the ATU's "throat" where the evidence established that the union had delayed the job pick and the supervisor's statement was made out of frustration, rather than union animus. The employer established that the supervisor, in fact, had conceded to the ATU's conditions for a meeting preceeding the job pick and refrained from forcing the pick on the union, as he could have done. Also dismissed were a number of ATU claims that other ATU representatives were retaliated against, or that established practice was changed, when release time was denied for attendance at monthly membership meetings or to perform union business. With one exception, the denial of release time to union officials was found not to have been based on union animus, but on the employees' being AWOL on occasions when release time was expressly denied or defying the terms upon which release time was granted. Both the denial of the release time and the discipline which was imposed when the employees were AWOL were legitimate business decisions based on the circumstances presented. Where, however, an officer was denied release time for a regularly scheduled monthly meeting for the first time in several years and, after submitting more than seventy-two hours notice for his request, a violation was found and the employer's claim, that staffing needs mandated the denial, was dismissed as subterfuge. With respect to the past practice claim, the ATU's proof either failed to establish that the employer had unilaterally imposed a requirement for a specific amount of advance notice for leave requests or its pleadings failed to sufficiently plead the violation which it later sought to prove. In addition, where the alleged violation of past practice occurred on May 3, 2002, and the charge was not filed until September 11, 2002, the claim is barred by PERB's four month period of limitations. Lastly, a violation was found where the NYCTA disciplined five drivers for uniform violations in the wake of the ATU filing thirty-six grievances. The ALJ based the finding on statements by supervisors about calling "a truce" and to the effect that a union member would be written up for each grievance submitted. The ALJ further held that even if animus had not been shown, the comments constitute violations of the Act. (ALJ Cacavas, U-23339, 1/26/04)

ROCHESTER POLICE LOCUST CLUB, INC., AND CITY OF ROCHESTER. The City was found to have violated §209-a.1(a) of the Act when it denied Locust Club members under investigation for possible criminal charges arising out of the performance of their jobs access to union representatives. The several scope cases in which the Board determined that contract proposals which either explicitly or arguably addressed the conduct of criminal investigations to be nonmandatory did not act to allow the employer to deny to its employees the fundamental statutory right to representation upon request. Neither public policy considerations nor the integrity of the police department's criminal investigative work were found to militate against the extension of Weingarten rights to criminal investigations arising out of an employee's performance of his or her job. (ALJ Doerr, U-23938 & U-24081, 1/28/04)

UNIFORM FIREFIGHTERS OF COHOES, LOCAL 2562, IAFF, AFL-CIO AND CITY OF COHOES. The ALJ dismissed an improper practice charge upon a finding that the merits of the charge had been rejected in a binding arbitration award. (ALJ Quinn, U-23967, 1/28/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND CITY OF SCHENECTADY. The ALJ found that the City violated its duty to negotiate by refusing to provide information that was relevant and necessary for CSEA to prosecute a grievance on behalf of a unit employee. On the theory that a directive not to enter specific City offices was to expire when the City completed a sexual harassment investigation involving the employee, the ALJ held that the City was required to advise the union when it completed its sexual harassment investigation. However, the ALJ dismissed the charge to the extent that CSEA sought specific information regarding the sexual harassment complaint to advance its theory that the directive breached the parties' contract. According to the ALJ, the merits of the directive, and, thus, the underlying sexual harassment investigation, have no bearing on whether the employee defied the directive. (ALJ Quinn, U-24293, 1/28/04)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The charge was deferred to the parties' contractual grievance procedure as the Association has filed contractual grievances on the same facts as pled in the charge. (ALJ Comenzo, U-23856, 1/29/04)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The charge was deferred to the parties' contractual grievance procedure as the Association has filed contractual grievances on the same or similar facts as pled in the charge. (ALJ Comenzo, U-24232, 1/29/04)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 807, CHAUTAUQUA COUNTY EMPLOYEES UNIT AND COUNTY OF CHAUTAUQUA. When CSEA alleged a violation of §§209-a.1(a) and (c) of the Act when a lateral transfer was not granted allegedly because of protected activity, it was found that CSEA failed to establish a prima facie case of improper motivation. Further, the ALJ found that if compelled to rule on the issue, that the County established that its actions were motivated by legitimate business reasons. (ALJ Kaufman, U-24204, 1/30/04)

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 41 AND TOWN OF EVANS. The Town was found to have violated §§209-a.1(a) and (d) of the Act when it failed to respond to IBEW's request for information necessary for the processing of a termination grievance on behalf of a member. (ALJ Doerr, U-24260, 2/3/04)

IDELLA M. ABRAM AND BUFFALO POLICE BENEVOLENT ASSOCIATION. The Director dismissed a charge alleging a violation of §209-a.2(c) of the Act as being both untimely and failing to plead facts that would establish the Association's conduct as arguably being in violation of the Act. (Director Klein, U-24683, 2/2/04)

PERU ASSOCIATION OF TEACHERS, NEA/NY AND PERU CENTRAL SCHOOL DISTRICT. That part of a charge alleging a violation of §209-a.1(d) of the Act was deferred to the parties' contractual grievance procedure upon agreement by the parties that grievances relating to the subject matter of the charge have been filed. Allegations of violations of §§209-a.1(a) and (c) of the Act, based upon the same fact pattern as the (d) violation, were dismissed for insufficiency. (Asst. Director Barsamian, U-24716, 2/2/04)

LOCAL 589, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO AND CITY OF NEWBURGH. The charge was deferred to the parties' contractual grievance procedure as the Association has filed grievances on the same facts as pled in the charge. (ALJ Comenzo, U-24447, 2/3/04)

NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK. The charge was deferred to the parties' contractual grievance procedure as PEF has filed grievances on the same facts as pled in the charge. (ALJ Comenzo, U-24474, 2/3/04)

SCHOHARIE TEACHERS ASSOCIATION AND SCHOHOARIE CENTRAL SCHOOL DISTRICT. The charge was deferred to the parties' contractual grievance procedure as the Association has filed grievances on the same facts as pled in the charge. (ALJ Comenzo, U-24482, 2/3/04)

ORANGE COUNTY COMMUNITY COLLEGE FACULTY ASSOCIATION, NYSUT, LOCAL 39-135 AND COUNTY OF ORANGE AND ORANGE COUNTY COMMUNITY COLLEGE. The Director conditionally dismissed an improper practice charge until a determination could be made regarding the dispute in accordance with the parties' contractual grievance procedure. (Director Klein, U-24721, 2/3/04)

CITY OF NIAGARA FALLS AND NIAGARA FALLS UNIFORMED FIREFIGHTERS ASSOCIATION, AFLCIO, LOCAL 714. An improper practice charge, alleging that Local 714 violated the Act by submitting a petition for compulsory interest arbitration on a nonmandatory subject, and raising other objections to arbitrability, was dismissed. A demand for increased compensation to firefighters when fewer than four were assigned to a piece of equipment, was mandatory as a demand for premium pay, it did not interfere with the managerial prerogative to reduce staff, and was not vague as it clearly raised only a mandatory issue. An objection to refiling the revised demand after a previous ALJ decision held the initial petition nonmandatory was rejected, as parties are not precluded from revising and resubmitting demands, and the affirmative defense of duty satisfaction was rejected as the City failed to show it has negotiated the matter to completion. (ALJ Fitzgerald, U-24423, 2/9/04)

ANDREW J. CELIA AND NEW YORK CITY TRANSIT AUTHORITY AND TWU LOCAL 100. The Director dismissed a charge alleging violations of §§209-a.1(d) and 209-a.2(c) of the Act as being both procedurally deficient and lacking in substantive facts. (Director Klein, U-24752, 2/11/04)

DERUYTER FACULTY ASSOCIATION, NEA/NY, NEA AND DERUYTER CENTRAL SCHOOL DISTRICT. The charge was deferred to the parties' contractual grievance procedure as the Association has filed a grievance based on the same facts as pled in the charge. (ALJ Comenzo, U-24552, 2/24/04)

CLARENCE LITTLE AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ dismissed a charge alleging that the New York City Transit Authority (NYCTA) violated §209-a.1(a) of the Act by refusing to provide Little with a document relating to the initiation of discipline against him, which had been requested by his union representative. The ALJ held that the duty to supply such information runs only to an employee's collective bargaining representative and, therefore, to the extent that the charge is derivative of §209-a.1(d) of the Act, it was dismissed. Further, pursuant to City of Rochester, 29 PERB 3070 (1996), while the failure to supply information may be the basis for a §209-a.1(a) charge, the employer is only obligated to supply such information to an employee's collective bargaining representative. Additionally, under the facts presented, Little did not make a demand for the information himself, and he did not have a right under the collective bargaining agreement to the requested information. Accordingly, the charge was dismissed. (ALJ Maier, U-24345, 3/1/04)

KENNETH BELLAMY AND THE UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFLCIO AND THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ dismissed a claim that the UFT breached its duty of fair representation when a representative yelled at Bellamy, a union member, and when the UFT denied him the right to have a private attorney arbitrate his case or observe the arbitration hearing. The evidence revealed that Bellamy's encounter with the representative occurred when the member confronted the representative at the union office as he was exiting an elevator. Since neither the substance of the confrontation nor any intent by the representative was presented, the ALJ found that the bare allegation that yelling occurred was insufficient to establish a violation. With respect to the claim that the UFT violated the Act by denying private counsel to participate in, or attend, the arbitration, that too was rejected by the ALJ since Bellamy showed only that he disagreed with those decisions of the UFT; lacking was evidence to establish that the UFT acted arbitrarily, discriminatorily or in bad faith. Further, the credible evidence established that the UFT applied an established rule that private counsel is not allowed to members in arbitration proceedings since the arbitration stage is "owned" by the union and its representatives are specifically trained to handle the cases. Lastly, the UFT's handling of the case, and its decision not to present witnesses or evidence which Bellamy advocated, was not in bad faith, arbitrary or discriminatory. That Bellamy disagreed with the tactics utilized does not establish a violation of the Act. (ALJ Cacavas, U-23418, 3/2/04)

SARATOGA COUNTY DEPUTY SHERIFF'S BENEVOLENT ASSOCIATION AND COUNTY OF SARATOGA AND SARATOGA COUNTY SHERIFF. The employer violated §209-a.1(d) of the Act by unilaterally implementing a new provision of its policy and procedures manual limiting employees' initiation of personal telephone calls to one location and altering the process for initiating and, as a result, the timing of such calls. (ALJ Comenzo, U-23829, 3/2/04)

LEVITTOWN UNITED TEACHERS, NYSUT, AFT, AFLCIO AND LEVITTOWN UNION FREE SCHOOL DISTRICT. The ALJ conditionally dismissed an improper practice charge pending a determination regarding the dispute in accordance with the parties' contractual grievance procedure. (ALJ Cacavas, U-24668, 3/4/04)

SAMUEL J. SIMON, JR., AND LOCAL 32, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS. The Director dismissed a charge alleging, as amended, a breach of the duty of fair representation as being untimely. (Director Klein, U-24726, 3/4/04)

WAYNE COUNTY SHERIFF'S POLICE OFFICER ASSOCIATION AND COUNTY OF WAYNE AND WAYNE COUNTY SHERIFF. A charge alleging a violation of §209-a.1(d) of the Act when the employer reduced the schedule of members of the bargaining unit who participate in a "take-home car program" by a half an hour was deferred to the parties' contractual grievance procedure providing binding arbitration. (ALJ Kaufman, U-24815, 3/12/04)

LISA ANN LANTZ AND AMALGAMATED TRANSIT UNION, LOCAL 282 AND LIFT LINE, INC. A charge alleging, as amended, a breach of the duty of fair representation was dismissed. There was no evidence that the union, which had supported the charging party's termination grievance through arbitration, acted deliberately invidiously or in bad faith. (ALJ Doerr, U-23988, 3/12/04)

CHARLOTTE M. LASHER AND ALBION TEACHERS' ASSOCIATION/NYSUT. A charge alleging a violation of §209-a.2(c) of the Act was dismissed as having been untimely filed. (Director Klein, U-24791, 3/11/04)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 30 AND DENIS MCCARTHY AND CITY UNIVERSITY OF NEW YORK - HUNTER COLLEGE. The ALJ dismissed the charge alleging retaliation in connection with an employment termination which was filed more than four months from that date that the termination took place. The charging party's claim that the termination date should have been later due to deficient notice did not serve to toll the period of limitations. (ALJ Cacavas, U-24536, 3/15/04)

MYRA JAMES AND DISTRICT COUNCIL 37, AFSCME, AFL-CIO AND CITY UNIVERSITY OF NEW YORK. The ALJ dismissed a charge which alleged that DC 37 had violated §209-a.2(c) of the Act by failing to properly represent James in connection with a paycheck dispute. James specifically alleged that DC 37 did not speak with her before, during or after a meeting with CUNY which was held when James showed up unannounced at CUNY's office of labor relations. During the meeting, it was further alleged, DC 37 did nothing to represent James. The credible evidence, however, established DC 37, which was present at labor relations to handle a matter on behalf of another employee, did act on James' behalf. An employee's mere disagreement with the union's methods or dissatisfaction with the quality or extent of representation does not constitute a breach of the duty of fair representation absent a showing of arbitrariness, discrimination or bad faith. (ALJ Cacavas, U-24059, 3/15/04)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). Finding that wearing union membership insignia while off duty, in civilian attire, and on union business is a protected activity, the ALJ rejected the employer's defense that wearing such insignia under those circumstances loses its protection while lending assistance to a criminal defendant in a proceeding before a jury. According to the ALJ, it is for the judiciary, including the trial judge and counsel, to prevent conduct that inappropriately influences the jury inside of a courtroom. Therefore, the ALJ concluded that the employer's interest in preventing such influence does not outweigh the employees' right to engage in the at-issue protected activity. (ALJ Quinn, U-24165, 3/17/04)

BENJAMIN GADSON AND LONG ISLAND JEWISH HOSPITAL AND LOCAL 1199. A charge alleging that the Hospital's employment practices violate federal discrimination law and that Local 1199 has failed to act upon related employee complaints was dismissed for want of jurisdiction, lack of facts that would arguably establish a violation of the Act by either respondent and failure to meet procedural requirements. (Director Klein, U-24850, 3/19/04)

NORWOOD-NORFOLK TEACHERS' ASSOCIATION AND NORWOOD-NORFOLK CENTRAL SCHOOL DISTRICT. The ALJ deferred the merits of a dispute at issue in an improper practice charge for a determination at binding arbitration pursuant to the terms of the parties' expired collective bargaining agreement. (ALJ Quinn, U-24713, 3/30/04)

AMALGAMATED TRANSIT UNION, LOCAL 1145 AND COUNTY OF BROOME. An administrative law judge issued a jurisdictional deferral because the underlying dispute in an improper practice charge was the subject of a grievance that is awaiting binding arbitration. (ALJ Quinn, U-24733, 3/30/04)

E. TRINA LIPTON AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed a charge alleging a violation of §209-a.2(c) of the Act for untimeliness as well as failure to plead facts sufficient to establish the at-issue conduct as being a breach of the duty of fair representation. (Director Klein, U-24867, 3/31/04)

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Declaratory Rulings

STATE OF NEW YORK. The ALJ held that disciplinary procedures for sworn members of the Division of the State Police are mandatorily negotiable. (ALJ Quinn, DR-112, 9/28/04)

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