Message from Jerome Lefkowitz, Chairman
Confounding novelist Thomas Wolfe, I have come home again, and I relish the work that is before me, as well as my relationship with the fine PERB staff members. As I reflect upon the words of Chairman Cuevas in last year's Annual Report: "I do not suggest that the law is perfect: I don't know one that is," I recall Chairman Helsby's much more optimistic quotation from Sir William Gilbert Iolanthe almost 40 years ago: "The law's the true embodiment of every thing that's excellent; it has no fault, it has no flaw, and I, my lords, embody the law." Of course, I am brought back to the reality by a reflection upon the fate of the hubris of Percy B. Shelby's Ozmandous and his achievements.
I do, however, have some modest goals for achievement during my administration of this agency, chief among which will be to strive for a more modest approach to the issuance of decisions. I hope my colleagues will agree with me that we should not decide cases on the basis of a resolution of issues not addressed by the parties without having solicited oral argument or supplemental briefs on these issues. We are not wise enough to dispense with the help that these oral or written arguments may afford us. Similarly, we should follow our current Rules of Procedures §213.2 (b)(4), and not correct even palpably wrong ALJ decisions where the mistakes were not addressed in exceptions unless, and until, we amend our Rules. The only exception to this deals with remedial orders (Rules §213.6 [b]).
We have already embarked upon this modest journey. At our second meeting since I became Chairman, the Board issued a decision granting motions to file Amicas briefs, that expressly encourage such motions in the future and setting forth the appropriate procedure for doing so. The participant of amici will help insure the continued vitality of the Taylor Law.
Finally, I am pleased to announce the prospect of an important undertaking. In cooperation with Albany Law School's Government Law Center, Cornell's School of Industrial and Labor Relations, New York City's Office of Collective Bargaining and the New York State Bar Association's section on Labor and Employment Law, and with the advice of representative practitioners from labor and management, PERB is planning to hold a conference this coming Spring to celebrate the Taylor Law's 40th Anniversary. The conference will evaluate and discuss major issues under the Taylor Law. It is anticipated that this will not be a "how to do it" program. Rather, it will be an interchange between academics, and other experts, with experienced practitioners on topics dealing with the mission of the Taylor Law, and a critique of PERB's accomplishment of that mission.
I look forward to seeing many of you at that conference.
Mr. Lefkowitz returns to PERB after serving as Deputy Counsel for CSEA for the past 20 years. From 1967 to 1986, Mr. Lefkowitz was PERB’s Deputy Chairman.
Report from Richard A. Curreri, Director, Office of Conciliation
During the fiscal year, the Office of Conciliation processed 333 new collective bargaining impasse declarations, a slight decline from the total registered in fiscal 2005-06. In the education sector, teacher impasses rose by nearly 13%, while those in non-instructional units fell by about four percent. Within the municipal sector, impasses declined seven percent overall, the entire drop being attributable to police units, where such filings were down by 28%. On a related note, petitions for compulsory interest arbitration among police, fire and road patrol deputy sheriffs units declined by 23% from fiscal 2005-06, a year that produced the highest number of filings since 1980. The great bulk of this decline occurred among the deputy sheriff units, many of which had become eligible to invoke interest arbitration for the first time in fiscal 2005-06, and therefore may have filed a relatively high number that year.
Some 329 sets of negotiations were closed during fiscal 2006-07. A high percentage of impasses – about 75% -- were closed by mediation, i.e. without the necessity of a fact-finding report or a petition for compulsory interest arbitration, although it marked the first time this figure fell below 80% since fiscal 1998-99. In excess of 75% of the mediation assignments were handled by PERB staff mediators, with the balance assigned to ad hoc panel members. Of the 40 fact-finding assignments closed during the year, 14 were settled either without need for issuance of a report, or closed through the parties’ outright acceptance of the fact finder’s recommendations.
Fiscal 2006-07 saw the final chapter written regarding the tumultuous round of bargaining between the New York City Transit Authority and TWU Local 100 for a contract to succeed one that expired in December of 2005. The case was marked by a highly publicized three-day strike that month, which ended when a three-person PERB mediation team secured an agreement that brought the 36,000 transit workers back to work. The agreement was first voted down, then later ratified by Local 100’s membership, but the Authority refused to honor the revote, and opted to file for interest arbitration. In December, 2006, the PERB-appointed public arbitration panel chaired by George Nicolau issued its award, which essentially imposed the memorandum of agreement upon the parties.
New York City continued to be a hotbed of activity for the Office of Conciliation regarding other bargaining units as well. Mediation was provided for negotiations regarding the 24,000 member City police force, and the City subsequently invoked interest arbitration. The PBA objected to the selection list issued for the public member of the arbitration panel on procedural grounds, and the City contended that the PBA had failed to participate in the selection process, and thus had waived its right to select the public member. Litigation ensued before the Director of Conciliation and in the courts, and the matter remains unresolved. Mediation was also provided for negotiations in the 773 member City police captains’ unit, which remain unresolved, and for the City school district’s 5570 administrators and supervisors, where a new agreement was reached to succeed one that expired in 2003.
PERB neutrals were actively facilitating settlements during the fiscal year in a wide variety of sizable bargaining units outside New York City as well. Thus, mediation helped bring about settlements in large county units including those in Onondaga (3300 employees), Orange (2200), Dutchess (1500), Niagara (860), Livingston (510) and Cayuga (426); teacher units in the Yonkers (1600), Kenmore-Town of Tonawanda (774), Northport-East Northport (638) Freeport (584), Port Washington (466) and Mamaroneck (408) school districts, as well as in the Onondaga-Cortland Madison BOCES (478); non-instructional units in the Yonkers (1616) and Utica (500) school districts; police units in the cities of Niagara Falls (116), Kingston (78), Poughkeepsie (78) and Watertown (62) along with the Town of Greenburgh (115); and in fire fighter units in the cities of Albany (280), Schenectady (126) Niagara Falls (83) and Watertown (80).
Mr. Curreri has served as PERB’s Director of Conciliation since 1990, having previously served as Assistant Director and as Associate Counsel. He has mediated in numerous high profile impasses across the State, including the 2005 New York City transit strike, where he served as lead mediator of the team that helped end the job action.
Report from Monte Klein, Director, Office of Public Employment Practices and Representation
The 807 improper practice charges filed during the 2006-07 fiscal year represents a slight decrease from the 861 charges filed in the 2005-06 fiscal year. However, the number of improper practice charges pending at the close of the 2006-07 fiscal year, 614, represents an increase from the 561 charges pending at the end of fiscal year 2005-06. It constitutes the largest number of pending charges at the end of any fiscal year since the 1997-98 fiscal year.
The Administrative Law Judges and Director issued 109 improper practice decisions in fiscal year 2006-07, a decrease from the 130 issued during the prior fiscal year.
The number of representation petitions filed during the fiscal year, 117, constitutes a significant increase from the 74 petitions filed during the 2005-06 fiscal year.
We continue to settle the substantial majority of the matters filed with us. Accordingly, we value greatly the parties’ efforts at voluntary resolution, particularly at the pre-hearing conference level of case processing. The parties should be prepared at that time to fully discuss the case, enter into stipulations where appropriate, and resolve the matter as necessary.
Continuing our efforts to reduce litigation costs to the parties, we have expanded the use of telephonic, rather than onsite, conferences, particularly in geographic areas distant from our offices in Albany, Buffalo and New York City. We are also continuing to adjust the assignment of cases between our Albany, Buffalo and New York City offices to further contain case processing time.
We have recently filled professional staff positions that have been vacant for some time and we will continue to simplify our practices and procedures. We remain appreciative of the parties’ cooperation and good faith.
Mr. Klein has served as PERB’s Director of Public Employment Practices and Representation since 1996. He had been an administrative law judge with the agency since 1978.
Report from David P. Quinn, Associate Counsel & Director of Litigation
The Litigation Office experienced a drop in the number of new litigation cases involving PERB from ten in FY 2005-2006 to four new cases in FY 2006-2007. The number of litigation cases pending at the end of the fiscal year also dropped from 16 at the end of FY 2005-2006 to 13 at the end of 2006-2007. This development is largely attributable to the decline in the number of decisions that the Board issued during FY 2006-2007 and the unusually high number of cases closed in the prior fiscal year, 11 as opposed to 8 cases that the office closed in FY 2006-2007.
The cases that the office counts in the litigation category are Article 78 petitions for review of the Board’s decisions and orders and any other miscellaneous court work that the office engages in, including petitions for injunctive relief and petitions for enforcement of the Board’s remedial orders that are brought by PERB. The pending number of enforcement proceedings remained steady at four. PERB received 13 applications for injunctive relief during FY 2006-2007. All were deficient, denied or settled without litigation.
During FY 2005-2006, the Litigation Office initiated four strike charges as a result of the New York City Transit strike in December 2005. None was prosecuted by PERB because jurisdiction was found to lie in Supreme Court, Kings County, where the charges were prosecuted by the employer. No strike charges were received or initiated by PERB during FY 2006-2007.
The combined result of all of these developments was that overall litigation caseload decreased slightly by year’s end to 20 pending cases from the 23 cases that were pending at the close of FY 2005-2006.
Mr. Quinn was appointed to the position of Associate Counsel and Director of Litigation on May 17, 2007. While new to the position, he is not new to PERB, having served as an administrative law judge for fifteen years and as assistant counsel for litigation for eight.
Report from Deputy Chair & Counsel William Herbert
The Board’s responsibilities include issuing final decisions and orders determining exceptions filed by parties in approximately one third of the cases initially determined by the Office of Public Employment Practices and Representation and the Office of Conciliation. The Board’s final decisions are based on exceptions filed by parties seeking review of decisions and rulings rendered by the agency’s Directors, Assistant Directors and Administrative Law Judges. Board final decisions and orders resolve various matters including improper practice charges, representation petitions and declaratory rulings. The Board also issues certifications of employee organizations to represent public employees. For fiscal year 2006-07, the Board issued 30 decisions and 24 certifications. In comparison there were 33 decisions and 23 certifications issued in fiscal year 2005-06.
As of May 29, 2007, William A. Herbert is Deputy Chair and Counsel.
Report from James R. Edgar, Executive Director
We continue to collaborate with educational institutions, professional organizations and with the NYS Bar Association to provide educational outreach and training to labor law practitioners. Over 600 individuals participated in programs with PERB staff as presenters during 2006-07.
In keeping with our more traditional roles of client outreach, we have updated our printed publications, including the Mandatory/Nonmandatory Subjects of Negotiation, The Taylor Law, and The Taylor Law and the Duty of Fair Representation. Also, a new publication, Impasse Resolution under the Taylor Law, will be available to the public in the near future. Please check our website for further information. We are in the process of reviewing the Rules of Procedure for possible changes to the Rules and publication and, thereafter, an updated edition of the Annotated Rules of Procedure will be available.
We continue to make PERB forms available on diskette and on-line and offer the monthly PERB News and subscription service to PERB Advance Decisions to our constituency electronically.
PERB decisions are available by subscription on Lexis/Nexis and www.lrp.com. Decision summaries are also available on PERB’s website, www.perb.state.ny.us.
The annual publication of The Official Opinions and Decisions of the Public Employment Relations Board is marketed in an electronic version, in addition to the traditional printed volume.
In our on-going effort to educate our clients and publicize our services, our Internet website continues to be a two-way vehicle for communication with our constituency. The website features answers to questions frequently asked about the Taylor Law, provides access to PERB’s departments and individual staff members, offers synopses of current decisions, including archived decision summaries going back to January 2000, updates the status of mediations, posts fact-finding reports beginning with the 2003-04 fiscal year, offers petitions and other official forms which can be downloaded, and order forms for our publications and educational outreach programs.
Fiscal Year Activity
NYS Public Employment Relations Board Activities
Fiscal Years 1999-00 to 2005-06
ACTIVITY 1999-00 2000-01 2001-02 2002-03 2003-04a 2004-05 2005-06 2006-076 Conciliation Negotiating Units 4,263 4,310 4,350 4,452 4,460 4,597 4,697 4,730 Contracts Negotiable 2,422 2,377 2,250 2,145 2,320 2,382 2,322 2,327 Settled or Negotiations without Third-Party Assistance 2,050 2,042 1,910 1,828 1,982 1,997 1,979 1994 Brought to PERB for Assistance 372 335 340 317 338 385 343 333 Impasses Resolved Settled by Mediation 291 234 254 209 178 295 269 229 Settled by Mediation by Fact-finder 30 26 14 11 10 17 15 13 Settled by Negotiations Based on Fact-finding Report 26 23 13 14 15 19 23 26 Settled by Acceptance of Fact-finding Report 4 6 8 20b 3 11 6 1 Settled by Post Fact-finding Conciliation 8 9 5 0 1 2 4 6 Settled by Arbitration 20 10 13 8 11 13 16 17 Closed for Other Reasons 38 28 34 21 12 29 25 37 Representation Petitions Received 115 114 171 91 104 125 74 117 Director's Decisions 35 31 29 24 18 24 30 28 Board Decisions 12 8 9 2 7 5 4 5 Board Certifications 30 31 27 19 19 26 24 24 Petitions Withdrawn 73 61 111 62 66 87 56 55 Elections 14c 14d 11e 6f 10g 12h 9i 11j Clarification/Unit Placement Cases Cases Pending at Beginning of Year 29 46 31 49 36 60 52 34 Applications Received 89 68 67 64 60 58 47 50 Director's Decisions 17 22 6 9 16 13 25 12 Board Decisions 5 5 1 4 4 5 3 4 Withdrawn After Conference 58 53 45 59 33 51 42 31 Cases Pending at End of Year 46 31 49 36 60 52 34 46 Improper Practices Cases Pending at Beginning of Year 515 411 366 405 486 542 569 561 Charges Filed During Year 865 925 799 908 786 850 861 807 Administrative Law Judge Decisions 170 159 104 120 128 84 130 109 Board Decisions 61 50 22 38 37 23 24 25 Charges Settled by Agreement, Withdrawn or Closed 796 770 691 703 660 713 758 628 Cases Pending at End of Year 411 366 405 486 542 569 561 614 Management/Confidential Cases Cases Pending at Beginning of Year 14 21 16 14 13 19 15 11 Applications Received 46 42 30 42 28 30 30 33 Director's Decisions 27 35 23 29 19 15 26 10 Board Decisions 1 0 2 1 0 2 1 1 Withdrawn After Conference 10 11 10 11 10 15 9 13 Cases Pending at End of Year 21 16 14 13 19 15 11 23 Work Stoppages Strikes 2 3 2 2 0 0 4 0
- One DR case was decided by the Representation Office and then appealed to the Board. The Board also decided one appeal from a mini-PERB decision.
- Includes 13 impasses for which 1 fact finding report was issued.
- 25,754 employees involved.
- 1,580 employees involved.
- 1,901 employees involved.
- 2,519 employees involved.
- 1,182 employees involved.
- 791 employees involved.
- 608 employees involved.
- 1,228 employees involved.
NYS Public Employment Relations Board
80 Wolf Road, Albany, NY 12205-2670
Jerome Lefkowitz, Chairman
Robert S. Hite, Member
James R. Edgar, Executive Director