Archived Decision Summaries - January 1, 2002 through December 31, 2002

(Updated March 31, 2003)


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Decision Summaries Of The Board


Board Certifications

COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1180 has been certified to represent all full-time and regular part-time Public Safety Supervisors and Command Center Supervisors employed by the New York Convention Center Operation Corporation. All other employees are excluded. (C-5225, 11/4/02)

TEAMSTERS LOCAL 294 has been certified to represent all full-time highway workers, laborers, drivers and foremen employed by the Town of Greenville. Excluded from the unit are the Superintendent of Highways, fulltime Deputy Superintendent of Highways and all other employees. (C-5231, 12/12/02)

TOWN OF WOODBURY POLICE BENEVOLENT ASSOCIATION, INC. has been certified to represent all full-time Police Dispatchers employed by the Town of Woodbury. All other employees are excluded. (C-5239, 12/12/02)

NEW YORK STATE LAW ENFORCEMENT UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO has been certified to represent employees of the State of New York in the Security Supervisors Unit, which is inclusive of the following titles: Corrections Lieutenant, Sergeant Park Patrol, Security Hospital Supervising Treatment Assistant, Chief Environmental Conservation Officer, Forest Ranger 3, Lieutenant Park Patrol, Chief Security Officer, Chief Safety and Security Officer 1, Chief Safety and Security Officer 2, Environmental Conservation Investigator 3, Captain Park Patrol, Security Services Assistant 3, Supervising Parks and Recreation Forest Ranger, Ski Patrol Director. All other employees are excluded. (C-5241, 12/12/02)

VILLAGE OF TUXEDO PARK BENEVOLENT ASSOCIATION has been certified to represent all full-time Traffic Guards employed by the Village of Tuxedo Park. All other employees are excluded. (C-5243, 12/12/02)

TOWN OF DEERPARK POLICE BENEVOLENT ASSOCIATION has been certified to represent all fulltime and part-time police officers employed by the Town of Deerpark. All other employees are excluded. (C-5244, 12/12/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent Teachers Aides, Teaching Assistants and Food Service Helpers employed by the Ilion Central School District. Excluded from the unit are Secretary to the Superintendent, Senior Account Clerk-Treasurer, Payroll Clerk, Secretary to the Business Manager, School Lunch Manager, all administrators, substitutes, seasonal and casual employees, employees regularly scheduled to work less than twenty (20) hours per week, and all other employees. (C-5251, 12/12/02)

UNITED FOOD AND COMMERCIAL WORKERS DISTRICT UNION LOCAL ONE, AFL-CIO AND TOWN OF NORTH ELBA. The Board certified the Union as the representative of a unit of Town employees in the following titles: All full-time and part-time (working at least 20 hours per week) permanent employees in the following titles: Landfill Attendant, Watchman, Recycling Attendant, Motor Equipment Operator, Auto Mechanic/Highway, Heavy Equipment Operator, Cemetery Attendant and Landfill Operator and excluding all other employees. The petition for the unit of employees defined as Unit 2 was dismissed following a secret ballot election in which a majority of employees voting cast ballots against union representation. (C-5237, 12/12/02)

UNITED FEDERATION OF POLICE OFFICERS, INC. AND TOWN/CITY OF POUGHKEEPSIE WATER TREATMENT FACILITY AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Board dismissed the exceptions filed by the Federation to a decision of an Administrative Law Judge (ALJ) dismissing its petition for certification as the exclusive representative of a unit of employees employed at the water treatment plant jointly owned by the Town and City and seeking the decertification of CSEA. The Board determined that the exceptions had not been timely served on either the Town/City or CSEA and, therefore, there was a failure of timely service, whether or not the affected party or parties failed to respond or object to the defect in service. (C-5205, 12/12/02)

TEAMSTERS LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO has been certified to represent employees of the Village of Tannersville in the titles of laborers and working foreman. All other employees are excluded. (C-5220, 10/2/02)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 808 has been certified to represent all employees of the Metropolitan Transportation Authority in the job titles of telephone operator/receptionist, communications operator, clerk-typist, clerk messenger, file clerk, accounting clerk (all grades), senior accounting clerk, accounting clerk-budget, payroll accounting clerk, chief mail clerk, messenger, executive secretary, secretary, secretarial assistant, tape librarian, accounting clerk assistant, I/O control clerk, senior I/O control clerk, senior I/O control-data management, computer operator, lead computer operator, word processing operator and bursting decollating clerk. All other employees are excluded, including the shift supervisor (Data Center), operations supervisor (Data Center) and confidential personnel of the employer. (C-5218, 10/2/02)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO has been certified to represent employees of the State of New York in the titles of Traffic and Park Officer, Park Patrol Officer, Environmental Conservation Investigator I and II, Environmental Conservation Officer, Environmental Conservation Officer Trainee I and II, Supervising Environmental Conservation Officer, University Police Officer I and II, University Police Investigator I and II, and Forest Ranger I and II. All other employees are excluded. (C-5045, 8/19/02)

TEAMSTERS LOCAL 791 has been certified to represent employees of the Greece Central School District in the non-instructional unit consisting of regularly employed non-instructional personnel in the following departments: the Transportation Department, including substitutes therein; the Buildings and Grounds Department, including Custodial; the Food Service Department; the Business Office; the Personnel Services Office; the Instructional Services Office; the Information Services Department; Central Stores; Print Shop; the Community Services Office; and Continuing Education Office. Excluded from the unit are employees in the titles of District Administrators, Supervisors of Support Staff, substitutes, and also high school custodial foreman, Supervisor of Central Stores, Transportation Assistant, and Secretary of Support Services Director. (C-5159, 8/19/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent all regular full and part-time employees of the Town of Vestal who work in the Department of Fire, Engineering, Code, Police, Tax Collector, Assessor, Court, Business, Town Clerk, Supervisor, Water and Recreation. Excluded from the unit are Department heads, elected officials, police officers, seasonal employees, library employees, operating engineers, employees who work less than 300 hours in a calendar year, Senior Account Clerk-Payroll, Confidential Appointment to the Town Supervisor, Secretary to the Town Attorney, Assistant Water Superintendent, Deputy Highway Superintendent, and part-time Mechanic. (C-5200, 8/19/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent all classified staff titles of Southern Westchester Board of Cooperative Educational Services, including the following: Account Clerk, Account Clerk/Typist, Account Clerk/Typist (senior), Accountant, Accountant Jr., Adaptive Equipment Specialist, Administrative Assistant, Administrative Assistant Jr., Assistant Supervisor of Transportation, Auto Mechanic Foreman, Bus Dispatcher, Clerk/Transportation Office, Clerk Spanish Speaking, Community Aide, Community Aide (10 mos.), Community Aide (Spanish), Community Worker, Computer Aide, Control Operation Supervisor-Office Management, Cook-Manager (10 mos.), Cued Speech Interpreter, Data Entry Operator, Departmental Aide, Duplicating Machine Operator, Film Inspector, Food Service Helper (10 mos.), Head Bus Driver, Head Custodial Worker, Health Claims Processor, Interscholastic Athletic Assistant, Inventory Control Clerk, Job Coach/Bus Driver, Job Development Specialist, Library Assistant, Licensed Practical Nurse, Off Asst-Automated Systems, Off Line Equipment Operator, Office Assistant, Office Asst.-Automated Systems Sp Sp, Office Asst II/Staff Attendance, Parent Trainer (10 mos.), Payroll Clerk, Personnel Assistant, Prof. Development Specialist, Purchasing Assistant, Regional Certification Assistant, Registered Professional Nurse, Safety & Security Officer, Scheduler/Assigning Coordinator, School Monitor (10 mos.)-NC, Senior Account Clerk, Senior Clerk, Sign Lang Inter IIIC (10 mos.), Sign Lang Inter IIC (10 mos.), Sign Lang Inter II (10 mos.), Sign Lang Inter (10 mos.), Sports Desk Asst. (12 mos.), Sr. Job Development Specialist, Sr. Office Assistant, Sr. Office Asst/Auto Systems, Sr. Payroll Clerk, Sr. Typist, Sr. Typist (10 mos.), Staff Asst-Automated Systems, Staff Asst-RIC, Stenographer, Systems Control Clerk-Off Mgmt, Telephone Operator, Telephone Operator-PT, Translator (10 mos.), Typist, Word Processing Operator. Excluded from the unit are the titles of Secretary to Chief School Official, Secretary to School Official, Assistant Business Manager, Executive Secretary/Typist and all other employees. (C-5215, 8/19/02)

TEAMSTERS LOCAL 264 has been certified to represent all full-time and regular part-time Highway Department employees of the Town of Sheridan. All other employees are excluded. (C-5199, 6/12/02)

NEW COVENANT CHARTER SCHOOL EDUCATION ASSOCIATION FACULTY has been certified to represent all full-time regular teachers, social workers, and library media specialists employed by the New Covenant Charter School. Employees in the titles of tutors, student support managers, school technology managers, user support technicians, administrators, management/confidential employees, and all other employees are excluded. (C-5179, 6/12/02)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 264 has been certified to represent all full-time and regular part-time transportation supervisors employed by the Niagara Frontier Transportation Authority. All other employees are excluded. (C-5155, 3/26/02)

TEAMSTERS LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO has been certified to represent all full-time and part-time highway department employees employed by the Town of Cairo. Highway Superintendent and all other employees were excluded. (C-5188, 4/25/02)

TEAMSTERS LOCAL 264 has been certified to represent all employees of the Holland Central School District in the titles of Account Clerk Typist, Auto Mechanic, Auto Mechanic Crew Chief, Bus Attendant, Bus Driver, Cleaner, Clerk, Clerk-Typist, Cook, Cook Manager, Custodian, Food Service Helper, Head Grounds Worker, Grounds Worker, Head Bus Driver, Laborer, Laborer/Courier, Maintenance Mechanic Crew Chief, Maintenance Mechanic Helper, Painter, Registered Professional Nurse, School Monitor, Senior Account Clerk, Senior Clerk Typist, Teacher Aide, Offset Machine Operator. Excluded from the unit are employees in the titles of School Business Administrator, Superintendent of Buildings and Grounds, Transportation Supervisor (or Equivalent Position), Senior Account Clerk/District Treasurer, Secretary to the Superintendent of Schools/District Clerk, Food Service Manager, Payroll Clerk, and all others. (C-5161, 4/25/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent employees of the Avon Central School District in the titles of Food Server IV & III, Monitor I, Cleaner IV & III, Teacher-Aide, Custodian II, Library Aide II, Grounds II, Mechanic II, Guidance Secretary, Secretary, Child Associate, Duplicating Assistant, Cook, Accounting Clerk, Attendance Clerk, and Clerk Typist. All Professional and Confidential employees are excluded. (C-5090, 1/23/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent all full-time and regular part-time deputy sheriffs employed by the County of Cattaraugus and Cattaraugus County Sheriff. Excluded from the unit are all non-regular part-time and substitute deputies and all others. (C-5094, 1/23/02)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 17 has been certified to represent all full-time and regular part-time employees of the Town of Gaines Highway Department. The Highway Superintendent and seasonal employees are excluded. (C-5129, 1/23/02)

TEAMSTERS LOCAL 445, IBT, AFL-CIO has been certified to represent clerks and secretarial and clerical staff employed by the Village of Warwick. Managerial and supervisory employees are excluded. (C-5134, 1/23/02)

JAMESTOWN CITY ADMINISTRATIVE ASSOCIATION, JURA UNIT has been certified to represent employees of the Jamestown Urban Renewal Agency in the titles of Housing Inspector- Work Writeup Specialist, Community Outreach Specialist, Data Entry Clerk, Senior Clerk-Typist, Economic Development Coordinator, Grants Coordinator, Planning/Special Projects Assistants, Financial Coordinator, Principal Planner, Building- Zoning Code Enforcement Officer. The Director of Development, Senior Secretary and all other employees are excluded. (C-5146, 1/23/02)

WEST VALLEY SERVICE EMPLOYEES ASSOCIATION has been certified to represent non-instructional employees of the West Valley Central School District including: Bus Driver, Bus Dispatcher, Bus Mechanic, Long-Term Substitute Bus Driver, School Monitor, Head Cleaner, Cleaner, Custodian, CSE Secretary, Guidance Secretary and Secretary to Principals. All other employees are excluded. (C-5147, 1/23/02)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 693 has been certified to represent employees of the Town of Smithville in the title of Motor Equipment Operator (MEO). All other employees are excluded. (C-5148, 1/23/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent all employees of the Town of Manlius in the titles of Motor Equipment Operators (MEO), Local Crew Leader and Auto Mechanic. All other employees are excluded. (C-5149, 1/23/02)

SCOTIA-GLENVILLE TEACHERS ASSOCIATION, AIDES AND MONITORS UNIT, NYSUT, AFT, AFL-CIO has been certified to represent all full-time and part-time aides and monitors employed by the Scotia-Glenville Central School District. All other employees are excluded. (C-5172, 1/23/02)

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Representation

AMALGAMATED TRANSIT UNION, LOCAL 282 AND REGIONAL TRANSIT SERVICE, INC. The Board affirmed the decision of the Administrative Law Judge (ALJ) placing the title of Farebox Technician in a unit of employees represented by the ATU. The Board found that the exclusion of the title from the recognition clause of the parties’ contract did not warrant the dismissal of the petition because PERB has the statutory duty to determine the most appropriate unit and agreements between the public employer and an employee organization regarding unit inclusions and exclusions are not controlling. The ALJ determined that the Farebox Technicians shared a community of interest with the other employees in the unit in that they all perform duties designed to keep the RTS’s buses running in proper order. The nature of their duties, the fact that they are bonded and the salary disparity were not sufficient to warrant their placement in a separate unit. (CP-760, 8/19/02)

BUFFALO COUNCIL OF SUPERVISORS AND ADMINISTRATORS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO. The Board affirmed the decision of the Administrative Law Judge (ALJ) dismissing a unit clarification petition filed by the Council seeking the inclusion in its unit of the newly created title of Assistant Superintendent for School Leadership and Evaluation and granting the District’s application that the title be designated as managerial. Finding that the Assistant Superintendents in the title regularly attended meetings of the cabinet of the Superintendent of Schools, along with other management employees, none of whom are represented, the Board determined that the employees were policy makers appropriately designated as managerial. Further, the Board found that because the District intended to utilize these Assistant Superintendents as drafters of negotiating proposals and members of its negotiating team for the successor contract with the Council, the Assistant Superintendents were managerial because they could reasonably be required to perform duties that were not of a routine nature and required the use of independent judgment in the preparation for and conduct of collective negotiations. (CP-764 and E-2258, 6/12/02).

BEAVER RIVER CENTRAL SCHOOL DISTRICT NON-INSTRUCTIONAL EMPLOYEES ASSOCIATION/NYSUT/AFT/AFL-CIO AND BEAVER RIVER CENTRAL SCHOOL DISTRICT. The Board denied the exceptions filed by the District which alleged that a list of current members was insufficient evidence of majority support to entitle the Association to certification without an election pursuant to §201.9(g)(1) of PERB's Rules of Procedure (Rules). Relying on earlier decisions in which membership lists were found to be sufficient evidence of the bargaining unit's choice of a bargaining representative, the Board certified the Association as the exclusive bargaining representative of a unit including: All full-time and part-time non-instructional employees, including, but not limited to: Elementary Office Secretary, Guidance Office Secretaries, Middle School Office/ CSE Secretary, Transportation/High School Office Secretary, Teacher Aides, 1:1 Aides, Playground Aides, Elementary Cafeteria Aide, Elementary Library Aide, High School Library/Learning Center Aide, High School Cafeteria/Study Hall Aide, Study Hall Aides, Playground/Bus Aide, High School Cafeteria/Study Hall/Laundry Aide, Kindergarten Aide, Bus Drivers, Teacher Aide/Clerical Aide, Playground/Bus Aide, Computer Coordinator, AV Coordinator, Nurses (full and part-time), Food Service Workers, Cook, Baker, Cashier/Food Service, Assistant Cook/Baker, Cleaners, Custodians, Mechanic, Custodian/Maintenance, Maintenance/Assistant Head Custodian and Head Mechanic. Substitutes, Business Office Secretaries, Building/Grounds Supervisor, Food Service Manager were excluded. (C-5140, 2/28/02)

DENNIS R. GILBERT AND BUFFALO MUNICIPAL HOUSING AUTHORITY AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Board granted CSEA's request for interlocutory review of an Administrative Law Judge's (ALJ) ruling denying its motion to dismiss the representation petition filed by Gilbert. The Board reversed the ALJ's decision and dismissed the petition, finding that Gilbert had filed the petition in his own name and not in the name of the Buffalo Peace Officers Association. As an individual cannot file a petition for certification, it was error to allow the Association to later amend the petition to clarify that it was the petitioner. Further, the Board found that the petition could not be processed solely as a petition for decertification because the declaration of authenticity submitted by Gilbert in support of the showing of interest failed to comply with the requirements of PERB's Rules in that it did not specify Gilbert's capacity as Association president, did not indicate that he was authorized to act on behalf of the Association and did not contain a statement that Gilbert had made inquiries to ascertain that the individuals who signed the showing of interest were, in fact, members of the in-issue bargaining unit. (C-5166, 3/26/02)

ROCKLAND COUNTY DISTRICT ATTORNEY'S CRIMINAL INVESTIGATOR'S ASSOCIATION AND COUNTY OF ROCKLAND. The Board affirmed the decision of the Administrative Law Judge (ALJ) dismissing the Association's petition which sought to add or place the newly created title of undercover unit supervisor in its unit of criminal investigators in the County's District Attorney's office. Finding that the new title was not already included in the unit as defined in the parties' collective bargaining agreement, the ALJ correctly dismissed the unit clarification aspect of the petition. The Board affirmed the ALJ's finding and further affirmed her determination that, because the undercover unit supervisor was not listed as a title eligible for the compulsory interest arbitration provisions in §209.4 of the Public Employees' Fair Employment Act (Act), the unit placement aspect of the petition must also be dismissed. The decision of the ALJ not to hold a hearing on the threshold issue of the effect of §209.4 of the Act on the petition was also affirmed by the Board. (CP-720, 2/28/02)

DISTRICT COUNCIL 37, AFSCME, AFL-CIO AND PROFESSIONAL STAFF CONGRESS OF THE CITY UNIVERSITY OF NEW YORK AND UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL WORKERS, AFL-CIO, LOCAL 2110 AND RESEARCH FOUNDATION OF THE CITY UNIVERSITY OF NEW YORK AND THE CITY UNIVERSITY OF NEW YORK. The Board denied an interlocutory appeal from DC37 and PSC which sought the Board's review of an ALJ's ruling that the further processing of their representation petitions seeking to represent certain employees of the Research Foundation and CUNY would be held in abeyance pending the issuance of a decision by the National Labor Relations Board on a matter before it dealing with the issue of the public or private identity of the Research Foundation. Finding that the possible prejudice to unit employees was outweighed by the potential inefficient use of the administrative resources of both agencies if there was a simultaneous processing of representation petitions by both, the Board decided not to entertain the interlocutory appeal. (CP-757 & CP-758, 4/25/02)

MARILYNN D. CURTIS AND COUNTY OF WASHINGTON (PUBLIC HEALTH) and CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Board decertified CSEA as the bargaining agent of a unit of County employees as a result of a mail ballot election in which the majority of eligible employees in the unit cast ballots indicating that they no longer wished to be represented by CSEA. (C-5138, 1/28/02)

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Management / Confidential

NO RECENT MANAGEMENT / CONFIDENTIAL BOARD Decision Summaries SINCE JANUARY 2002.

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Improper Practices

HOPE SOBIE AND NEW ROCHELLE FEDERATION OF UNITED SCHOOL EMPLOYEES, LOCAL 280, AFT/ NYSUT, AFL-CIO AND THE CITY SCHOOL DISTRICT OF THE CITY OF NEW ROCHELLE. The Board affirmed the decision of the ALJ, dismissing Sobie's improper practice charge alleging that the Federation violated §209-a.2(c) of the Act when it refused her request to assist her in the processing of a grievance against the District, alleging that she was eligible for a longevity increase pursuant to the Federation-District collective bargaining agreement. The Board reiterated that the mere difference of opinion between a member and an employee organization about the interpretation of a contractual provision is not sufficient to establish a breach of the duty of fair representation. Absent evidence of improper motivation, an employee organization's determination not to pursue a grievance that is contrary to its interpretation of the contract is not violative of the Act. (U-21606, 11/4/02)

SHERIFF OFFICERS ASSOCIATION, INC. AND COUNTY OF NASSAU. The Board affirmed the ALJ's decision that the County had violated §209-a.1(d) of the Act when it unilaterally discontinued the assignment of County vehicles to two employees in the bargaining unit represented by the Association. The Board found that the use of County-owned vehicles by the two titles (commanding officer of the training academy and commanding officer of the data processing unit) was a long-standing past practice and was not conditioned upon the performance of job duties, as argued by the County, that were no longer being performed by the employees in the titles. The Board noted that where a past practice was title-specific, it need not affect the unit as a whole to be enforceable. (U-22837, 11/4/02)

PORT JEFFERSON TEACHERS' ASSOCIATION AND PORT JEFFERSON UNION FREE SCHOOL DISTRICT. The Board affirmed the decision of the ALJ, finding that the District violated §209-a.1 (d) of the Act when it unilaterally subcontracted the exclusive work of employees in the unit represented by the Association involving the performance of educational testing mandated by the District's Committee for Special Education (CSE). The District had hired a private psychiatrist to perform the testing, arguing that it was not exclusive bargaining unit work because in a de minimis number of cases the testing had been performed by nonunit personnel. The Board found that in the majority of the cited instances, the testing had been performed at the request of a student's parents before the student was referred to the CSE. The Board found that the few instances of outside personnel performing the tests were too inconsequential to breach the Association's exclusivity, even if it could be shown that the tests had been performed at the District's direction. (U-21696, 12/12/02)

MAURICE OPARAJI AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, NYSUT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the ALJ's decision dismissing Oparaji's improper practice charge alleging that the UFT violated §209-a.2(c) of the Act by failing to file grievances and prosecute other grievances concerning letters placed in his file while he was on leave. The Board found that the ALJ correctly made credibility resolutions in deciding the motion to dismiss made at the close of Oparaji's direct case. As one of Oparaji's witnesses, a UFT representative, credibly testified that he had never received the grievances, the charge was properly dismissed as to the allegation that grievances had not been processed by UFT. As to the remaining allegations, the Board found that UFT had offered Oparaji assistance and had communicated with him regarding his grievances. (U-22333, 12/12/02)

AFSCME COUNCIL 66, LOCAL 930, AFL-CIO, ERIE COUNTY WATER AUTHORITY BLUE COLLAR EMPLOYEES UNION AND ERIE COUNTY WATER AUTHORITY. The Board affirmed the ALJ's decision finding that the Authority violated §209-a.1(d) of the Act when it unilaterally subcontracted the exclusive work of the bargaining unit represented by AFSCME of replacing and testing water meters at a commercial pit locations. The Board rejected the waiver argument made by the Authority and found that the work was substantially the same as that performed by unit employees, there had been no change in the qualifications necessary for the performance of the in-issue work and neither the size of the project nor the Authority's desired completion date constituted a compelling need for the Authority to act unilaterally. (U-22456, 12/12/02)

BIANCA BAEZ 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 that alleged that the District retaliated against Baez for filing contractual grievances. The Board found that the ALJ correctly granted the District's motion to dismiss the charge at the close of Baez's direct case because, even assuming the truth of the evidence and giving Baez every reasonable inference that could be drawn from that evidence, she had failed to establish improper motivation on the part of the District. (U-22617, 12/12/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, NASSAU LOCAL 830 AND COUNTY OF NASSAU. The Board affirmed the decision of the ALJ and found that the County had violated §§209-a.1(a) and (c) of the Act when it failed to promote an employee in the unit represented by CSEA because of his exercise of protected rights. The Board found that the County had failed to place the employee on a promotional list because he had filed grievances. However, the Board modified the ALJ's remedy of giving the employee the promotion he had sought. The Board ordered instead that the employee be placed on the promotion list without regard to his grievance activity. (U-22647, 12/12/02)

LYRIC P. SMITH AND ORGANIZATION OF STAFF ANALYSTS. The Board declined to reconsider its earlier decision dismissing Smith's improper practice charge because the motion was not based upon newly discovered evidence. (U-23181, 12/12/02)

NEW YORK STATE SUPREME COURT OFFICERS ASSOCIATION, ILA, LOCAL 2013, AFL-CIO AND STATE OF NEW YORK (UNIFIED COURT SYSTEM) AND NEW YORK STATE COURT OFFICERS ASSOCIATION. The Board denied the interlocutory appeal made by the NYS Supreme Court Officers Association (SCOA) seeking review of an Administrative Law Judge's granting of intervenor status to the NYS Court Officers Association and the ALJ's denial of SCOA's motion that the ALJ recuse himself. Applying the standard of review for interlocutory appeals, the Board found that there were no extraordinary circumstances or evidence of severe prejudice presented sufficient to invoke the Board's jurisdiction. (U-23131, 10/2/02)

LYRIC P. SMITH AND ORGANIZATION OF STAFF ANALYSTS. The Board affirmed the decision of the ALJ dismissing Smith's improper practice charge alleging that the Organization of Staff Analysts (OSA) violated the Act by failing to respond to a letter. Finding that Smith had failed to prove as part of his direct case that OSA had acted in an arbitrary or discriminatory manner or in bad faith, the ALJ granted OSA's motion to dismiss. The Board concurred, noting that OSA had adequately responded to Smith's inquiries on several levels. (U-23181, 10/2/02)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the ALJ finding that the Transit Authority violated §209-a.1(a) of the Act when it denied an employee's request for union representation while he was required to write a statement in the presence of his supervisors responding to allegations of workplace misconduct. The Board found that the reasoning of the United States Supreme Court in NLRB v. Weingarten was applicable to employees covered by the Act. Finding that a request for union representation at an investigatory interview was a clear expression of participation in an employee organization protected by §202 of the Act, the Board determined that the Authority violated the Act when it required an employee to respond to a workplace incident inquiry in a closed room in the presence of his supervisor without union representation. (U-22551, 10/2/02)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - GROVELAND CORRECTIONAL FACILITY). The Board reversed the decision of the ALJ and found that the State did not violate §209-a.1(d) of the Act when it unilaterally terminated a practice at the Groveland Correctional Facility of allowing unit employees at the facility to convert sick leave absences to vacation leave without prior approval. Finding that a past practice that involves an issue of unit-wide concern, such as time and attendance, is a practice that affects the unit as a whole, the Board determined that the evidence did not establish an unequivocal, enforceable past practice that unit employees could reasonably expect to continue and dismissed the charge. (U-22223, 10/2/02)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The Board partially affirmed and partially reversed the decision of the ALJ on an interlocutory appeal by the State in which it argued that the ALJ erred in reaching the merits of the case rather than deferring the charge to binding arbitration. The charge alleged that the State violated §§209-a.1(a) and (d) of the Act when it denied the PBA access to an employee during an investigatory interview. The ALJ determined that he needed to decide whether the Supreme Court's decision in NLRB v. Weingarten applied to public employees covered by the Act in deciding whether the matter could appropriately be deferred. The Board found that it was unnecessary for the ALJ to reach the merits of the charge in making a deferral decision because the Board retains jurisdiction of the entire charge unless an alleged violation of §209-a.1(a) of the Act is purely derivative of an alleged §209-a.1(d) violation. As the charge arguably made out a §209-a.1(a) violation that was independent of the alleged §209-a.1(d) violation, deferral was inappropriate and the matter was remanded to the hearing ALJ for further processing. (U-22830, 10/2/02)

WILLIAM T. BRUNS AND COUNCIL 82, AFSCME, AFL­CIO AND STATE OF NEW YORK (DIVISION OF PAROLE). The Board affirmed the decision of the ALJ dismissing Bruns’ improper practice charge which alleged that Council 82 and the State had violated the Act by entering into an agreement in settlement of a grievance filed by Bruns concerning a claim to overtime pay. Finding that the State was not improperly motivated in seeking settlement of Bruns’ grievance and an action taken by an employer seeking to resolve or minimize the impact of a grievance is not, otherwise, improper and that Council 82’s agreement to the settlement, even over Bruns’ objection, was not arbitrary, discriminatory or made in bad faith, the Board dismissed the charge. (U-13349, 8/19/02)

POLICE BENEVOLENT ASSOCIATION OF NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The Board affirmed the decision of the ALJ dismissing the improper practice charge filed by the PBA which alleged that the State had violated the Act by unilaterally changing the interpretation of “probation” as used in disciplinary settlements. At the close of the PBA’s case, the State made a motion to dismiss the charge, arguing that the PBA had failed to establish a change in a prior practice. Giving the PBA every reasonable inference to be drawn from the evidence produced during its direct case, the ALJ found that the PBA had failed to demonstrate the prior practice between the parties regarding disciplinary settlements and had failed to meet the burden of proof by merely establishing the current practice between the parties. (U-21048, 8/19/02)

MARK L. NAGY, M.D. AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK AT BUFFALO). The Board dismissed Nagy’s charge, finding that because Nagy was not a public employee within the meaning of the Act, the Board did not have jurisdiction over his improper practice charge which alleged that the State had terminated him from his position as Clinical Assistant Professor of Otolaryngology because of the exercise of protected rights. Nagy was an unsalaried, geographic full-time faculty member when the State terminated him for failing to meet the requirements of his position. The Board determined that the receipt of some form of compensation was necessary in defining a person as an “employee”. As Nagy served in an unpaid faculty position (and derived his compensation from participation in a practice plan which was a requirement of his faculty appointment), he was not, the Board held, an employee and, therefore, not a public employee under the Board’s jurisdiction. (U-22042, 8/19/02)

WESTHAMPTON BEACH POLICE BENEVOLENT ASSOCIATION AND INCORPORATED VILLAGE OF WESTHAMPTON BEACH. The Board dismissed the PBA’s improper practice charge alleging that the Village violated the Act when it abolished the position of lieutenant on its police force and demoted the incumbent because of his exercise of protected rights. The Board found that none of the actions taken by the lieutenant constituted the exercise of protected rights. Those actions he took during the relevant time frame were individual actions taken on his own behalf and without any reference to the PBA or the unit members and without representation by the PBA. (U-22411, 8/19/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND TOWN OF NORTH HEMPSTEAD. The Board reversed the decision of the ALJ and found that the Town had not violated the Act by transferring the CSEA unit president from his position as Director of Permit Division to the title of Building Inspector II. The ALJ found that there was no animus on the part of the Town and the Board affirmed that finding. However, the ALJ nonetheless found that the Town had transferred the unit president because of his use of union leave time, rejecting the legitimate business reasons proffered by the Town as justification for the transfer. The Board found that the reasons articulated by the Town were legitimate and dismissed the charge. (U-22413, 8/19/02)

TRANSIT SUPERVISORS ORGANIZATION AND NEW YORK CITY TRANSIT AUTHORITY. The Board dismissed the improper practice charge filed by the TSO which alleged that the Authority violated the Act when it unilaterally assigned unit work to nonunit titles. The Board found that the record established that there was an overlap in the duties of the unit title and the nonunit title and the TSO had, therefore, failed to establish exclusivity over the work in question. (U-22541, 8/19/02)

UNITED UNIVERSITY PROFESSIONS (EDMUND EGAN) AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK - SUNY AT BUFFALO). The Board reversed the decision of the ALJ, finding that the action complained of in the improper practice charge was not taken by the State, but by Egan’s medical practice group, University Pediatrics Associates, Inc. (UPA). Finding that UPA is a private employer, the Board dismissed the improper practice charge which alleged that Egan had been prevented from engaging in clinical practice because of the exercise of protected rights. Though there were some indicia of State involvement in UPA, the Board found that UPA was substantially a private employer that served no proprietary or governmental function and received no public money. To the extent that it could be argued that the State and UPA constituted a joint employer of the doctors in the clinical practice, the Board found that just as it did not have jurisdiction over a private employer, neither did it have jurisdiction over a joint public-private employer. (U-22037, 6/12/02)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 1671 AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF LONG BEACH AND LONG BEACH PUBLIC SCHOOL EMPLOYEES GROUP C ASSOCIATION. The Board affirmed the decision of the ALJ, finding that the District violated §§209-a.1(a) and (e) of the Act when it placed in escrow dues deductions from members of Local 1671 and refused to forward those monies to Local 1671. The District claimed it was acting as merely a stakeholder because the Association had approached it after an affiliation among unit employees claiming that it was now the exclusive bargaining agent for those employees. During the pendency of the Association’s representation petition seeking to decertify Local 1671 and be certified as the exclusive bargaining agent of the at-issue employees, the District retained in an escrow account the dues deducted from unit employees. As a result of the election held pursuant to the Association’s representation petition, Local 1671 was decertified as the bargaining agent in March 2002, at which time the Association became the certified bargaining agent. The Board found that until it decertified an employee organization, the certified bargaining agent has the obligation to continue to represent unit employees and is, therefore, entitled to continue to receive dues deductions from the public employer. The District’s refusal to continue transmitting dues to Local 1671, therefore, violated §209-a.1(a) of the Act. Further, as the expired collective bargaining agreement between the District and Local 1671 provides for the deduction and transmittal of membership dues by the District to Local 1671, the Board found that the District’s failure to transmit dues until the date of the decision decertifying Local 1671, violated §209-a.1(e) of the Act. (U-22390, 6/12/02)

NEW YORK STATE SUPREME COURT OFFICERS ASSOCIATION, ILA, LOCAL 2013, AFL-CIO AND STATE OF NEW YORK (UNIFIED COURT SYSTEM) AND NEW YORK STATE COURT OFFICERS ASSOCIATION. The Board reversed the decision of the ALJ which allowed the Court Officers Association (COA) to intervene on the basis of an oral motion made at a pre-hearing conference at which the Supreme Court Officers Association (SCOA) and the State were present and represented. SCOA objected to the motion and filed an interlocutory appeal with the Board, objecting to the ALJ’s granting of the motion because it was not in written form, as prescribed by §212.1 of PERB’s Rules of Procedure (Rules). The Board granted the interlocutory appeal and reversed the ALJ’s ruling, finding that the Rules required that motions to intervene be in writing, on notice to all parties, and there was not a good and sufficient reason for the ALJ to depart from the specific requirements of the Rules. The ALJ’s decision to grant COA’s motion to intervene was reversed, without prejudice to COA renewing its motion in accordance with §212.1 of the Rules. (U-23131, 6/12/02)

NEW YORK CITY TRANSIT AUTHORITY AND TRANSPORT WORKERS UNION OF GREATER NEW YORK, LOCAL 100. The Board affirmed the Director's decision dismissing the Authority's improper practice charge which alleged that the TWU had repudiated a portion of the parties' collective bargaining agreement. The parties disputed the meaning of a "broad banding" provision in their current contract and both pointed to the contract as a source of their respective rights. Reiterating that a meritorious repudiation claim arises only in the "extraordinary circumstances" in which a party to the contract denies the very existence of an agreement or acts in total disregard of the contract's terms without any colorable claim of right, the Board held that the charge was properly dismissed as the Board has no jurisdiction over a contract dispute which does not otherwise give rise to a violation of the Act. (U-22997, 2/28/02)

CITY OF BUFFALO AND BUFFALO POLICE BENEVOLENT ASSOCIATION. The Board affirmed the decision of the ALJ finding that the PBA violated §209-a.2(b) of the Act by failing and refusing to agree to negotiate in good faith for a time line to implement one-officer/two-officer patrols. The parties had been negotiating the idea of one-officer/ two-officer patrols for over ten years, but the Board found that the PBA had not satisfied its duty to negotiate upon demand by the City for the implementation of their agreements with respect to the patrols. Although several interest arbitration awards and collective bargaining agreements referenced the patrols, the Board found that the contract language did not divest it of jurisdiction and ordered the PBA to negotiate in good faith with the City. (U-22204, 03/26/02)

TEAMSTERS LOCAL 317, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO AND TOWN OF SCRIBA. The Board reversed the decision of the ALJ and found that the Town did not violate §§209-a.1(a) and (d) of the Act when it did not agree to the demands of the Teamsters for a salary increase during negotiations for an initial contract. A year earlier, and prior to the start of the Teamsters' organizing campaign, the Town had given a multi-year salary increase to its then unrepresented Highway Department employees, to be "frontloaded" into the first of five years. An improper practice charge alleging that the raise was improper during the pendency of a representation petition was filed at that time by the Teamsters but was withdrawn, with prejudice, based upon an agreement between the Town and the Teamsters that the Town would recognize the Teamsters. The Town thereafter recognized the Teamsters as the exclusive representative of a unit of Highway Department employees and negotiations for the parties' first collective bargaining agreement commenced. The Board found that it was error for the ALJ to rely on the prior, settled, charge to establish improper motivation in the instant charge. Further, the Board found that the record established that the Town had engaged in good faith negotiations based upon the "totality of conduct" of the Town and that the Town's refusal to agree to the Teamsters' salary proposal did not, by itself, violate the Act. (U-22263, 03/26/02)

AUDREY GORE AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND HEALTH RESEARCH, INC. The Board dismissed Gore's exceptions to the ALJ's decision because Gore had failed to serve the exceptions on the other parties to the proceeding. PERB's Rules, §213.2(a), require that exceptions must be simultaneously filed with PERB and served on all the other parties, and proof of service must be filed with PERB. Since service is a component of timely filing, the Board will dismiss exceptions upon the objection of a party who has not been properly served. As Gore had neither served exceptions on the other parties nor filed proof of service with the Board, the exceptions were dismissed and the Board affirmed the ALJ's decision. (U-22678, 03/26/02)

MARVIN SANFORD, RICHARD D. WOODS, JOHNNIE A. FRITZ, JR., TOMAR HUBBARD, BRADFORD PITTS AND ROBERT W. YEATES AND BUFFALO POLICE BENEVOLENT ASSOCIATION AND CITY OF BUFFALO. On remittal from the Appellate Division, Fourth Department, the Board revised its order to remove any remedy as to Hubbard, Pitts and Yeates after the Court found that the PBA had not breached its duty of fair representation as to those employees when it took a position in an Article 78 proceeding that was contrary to the position asserted by Sanford, Woods and Fritz in grievances they had filed against the City. Because Hubbard, Pitts and Yeates had not filed individual grievances against the City and because the class action grievances which covered them had been filed by the PBA, the court found that the Board's remedy which ordered the PBA to reimburse all the charging parties for their court costs and legal expenses and to move all the grievances expeditiously, with the cost of outside counsel to be borne by the PBA, should be modified to exclude Hubbard, Pitts and Yeates. (U-20907, U-20987, U-21001, U-21005, U-21006 & U-21010, 4/25/02)

JOHN ZITO AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, NYSUT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board denied Zito's motion to reconsider its earlier decision in this matter, rejecting Zito's argument that his motion was based on newly discovered evidence because he had made the same argument to the Board in his original exceptions, and because the introduction of the evidence he proffered would not have produced a different result from the Board's prior holding. (U-21928, 4/25/02)

PEEKSKILL POLICE ASSOCIATION AND CITY OF PEEKSKILL AND LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO. The Board reversed the ALJ's decision, finding that the Association had failed to establish that an unequivocal practice existed with respect to the procedure for assigning overtime dispatching and that unit members had no reasonable expectation that the practice as alleged by the Association would continue. (U-22120, 4/25/02)

TOWN OF YORKTOWN AND TOWN OF YORKTOWN POLICE BENEVOLENT ASSOCIATION, INC. The Board affirmed the decision of the ALJ, finding the at-issue demands submitted to interest arbitration by the PBA were mandatory subjects of negotiation. The Board determined that a demand that contained several mandatory provisions (number of days worked per year, hours of shifts) was not rendered nonmandatory because it was a unitary demand which, the Town argued, would interfere with the Town's managerial prerogative to determine the level of services it would provide and to set staffing levels. The Board also found that a demand seeking a change in a contract provision which was nonmandatory, but rendered mandatory by virtue of the conversion theory of negotiations articulated in City of Cohoes, 31 PERB 3020 (1998), was mandatory because it was specifically related to the contract provision. Finally, the Board found that a demand that sought a stipend for unit members if the City should decrease the size of the bargaining unit was mandatory because the demand bears a reasonable relationship to a particular hazard or other circumstance affecting working conditions which it was designed to compensate. (U-22716, 4/25/02)

REEVA MILLER AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the Administrative Law Judge (ALJ) dismissing Miller's charge that the Board of Education had violated §§209-a.1(a) and (c) of the Act by engaging in a pattern of harassment that culminated in an Education Law §3020-a hearing. The Board found that, while Miller had received unsatisfactory evaluations from several supervisory personnel, there was no record evidence of any animus toward Miller as a result of the assistance she sought from her bargaining agent in an employment issue two years prior to the §3020-a hearing. (U-21339, 1/28/02)

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Declaratory Rulings

PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. AND THE CITY OF NEW YORK. The Board decided exceptions taken to a decision of an Administrative Law Judge on a declaratory ruling petition filed by the PBA. The Board determined that the matter was not moot even though the arbitration panel had issued its award, finding that there was a likelihood of repetition of the issues being raised between the parties, that the issues might evade review, and the issues involved were significant and important. Finding jurisdiction over the matter, the Board resolved the several demands covered by the petition. The Board found that the law regarding negotiability as developed by its decisions on scope of negotiations, especially its decision in City of Cohoes, 31 PERB 3020 (1998), was applicable to the negotiations between the parties. As to those items which were included in the parties' expired collective bargaining agreement, the Board found, based on Cohoes, that the items were mandatorily negotiable as between the City and the PBA. As to the remaining demands that were related to discipline or disciplinary procedures, the Board found them to be prohibited subjects of negotiations. The City's Police Commissioner is vested with the exclusive right and responsibility to discipline police officers by virtue of the City charter. The Board has previously found that where there is a special or local law relating to police discipline, demands or contract provisions that relate to discipline or disciplinary procedures will be held to be prohibited subjects of negotiations. The demand relating to an increase in the VSF fixed schedule was found to be nonmandatory as a demand which sought to require the City to change existing legislation. The Board found that the PBA's demand relating to the Sergeant's Chart was a demand for a work schedule, setting hours of work; did not infringe upon the City's ability to set manpower limits; and was, therefore, mandatory. The PBA's Sick Leave demand, requiring that an employee utilizing sick leave be confined to his or her home only during his or her regular shift, was also found to be mandatory. (DR-100, 11/4/02)

NEWARK VALLEY CARDINAL BUS DRIVERS, NYSUT/AFT/AFL-CIO, LOCAL 4360. The Board reversed the decision of the ALJ and determined that NYSUT's demand that the District reimburse the cost of fingerprinting for new hires who are required to provide fingerprints was nonmandatory. The Board found that the demand was one for reimbursement for a pre-employment expense and was, therefore, not a term and condition of employment for unit employees. (DR-090, 2/28/02)

SOUTH NYACK/GRAND VIEW JOINT POLICE ADMINISTRATION BOARD. The Board affirmed the determination of the Director of Public Employment Practices and Representation (Director) that the Administrative Board's petition for declaratory ruling which sought a determination regarding the negotiability of a demand included in the demand for compulsory interest arbitration filed by the Rockland County Patrolmen's Benevolent Association could not be processed. The petition was not on the form provided by the Director, as required by §210.1(a) of the Rules, and the Board found that because its Rules must be strictly applied, the Director's rejection of the petition was not placing form over substance. Further, because the Rules also require that such a declaratory ruling petition may not be filed after the response to the arbitration petition has been filed, the Administrative Board's subsequent filing of its declaratory ruling petition on PERB's form was untimely and could not correct the fatal defect in its original filing. (DR-0102, 2/28/02)

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Strikes

BUFFALO POLICE BENEVOLENT ASSOCIATION. The Board found that the PBA had not caused, instigated, encouraged or condoned a strike in violation of §210.1 of the Act when police officers represented by the PBA did not voluntarily apply for transfer to particular police department units pursuant to a PBA resolution prohibiting their participation in the City's new transfer procedures. The Board determined that the officers' refusal to apply for voluntary transfers was neither a concerted stoppage nor a slowdown and did not constitute a withholding of volunteer services. No police officers had failed to comply with any orders or directives and the City could, pursuant to the collective bargaining agreement, involuntarily transfer the least senior police officer to fill vacancies. (D-0272, 12/12/02)

CITY OF NEW ROCHELLE AND UNIFORMED FIRE FIGHTERS ASSOCIATION INC., LOCAL 273 OF THE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, ET AL. The Board found that the Association had engaged in a strike as charged and determined that, given the limited financial impact of the strike and that there was no evidence that the Association had previously engaged in any prior strike activity, the Association's dues and agency shop fee deduction privileges were ordered suspended for six months. (D-0271, 2/28/02)

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Local Procedures

COUNTY OF NASSAU. The Board rescinded its order of January 27, 1982 establishing the Nassau County PERB, finding that the Nassau County Legislature had complied with all the requirements of PERB's Rules of Procedure, §203.6, for terminating a local PERB. The two petitions filed by the Civil Service Employees' Association, Local 1000, AFSCME, AFL-CIO and the Nassau County Sheriff's Association, seeking review of the provisions and procedures of the Nassau County PERB were, therefore, dismissed. All matters currently pending before the Nassau County PERB were ordered transferred to PERB for further processing. (I-0047 & I-0048, 12/12/02)

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Other Matters

NO ARCHIVED OTHER MATTERS SINCE JANUARY 2002.

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Decision Summaries of the Office of Public Employment Practices and Representation


Representation

UNITED FEDERATION OF POLICE OFFICERS, INC. AND COUNTY OF DELAWARE AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ dismissed a petition seeking to decertify CSEA as a representative of certain titles included within a unit of employees employed by the County, and to certify itself as the bargaining agent for those employees. Based on the record before him, he found no evidence of a conflict of interest between the different occupational groups in the existing unit, or inadequate representation of said titles. (ALJ Mayo, C-5204, 11/12/02)

TEAMSTERS LOCAL 264 AND TOWN OF CHEEKTOWAGA. The Teamsters' petition seeking to be certified as the representative of a unit of eight unrepresented part-time court officers was dismissed, where the Town objected to the creation of an additional bargaining unit and asserted the title was appropriately placed in the existing blue and white collar employees' unit represented by the Town of Cheektowaga Employees Association (TCEA), and a community of interest was found to exist among the court officers and the other court employees in the TCEA unit. The TCEA agreed to represent the title if placed in its unit, and, although the petition had been filed during a period when the TCEA unit was not open to challenge, the Town and the TCEA waived the period of unchallenged representation, and the title was placed in the TCEA unit. (ALJ Fitzgerald, C-5153, 9/30/02)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK. The Director of Public Employment Practices and Representation added the title of Forester 4 to PEF's professional, scientific and technical unit. (Director Klein, CP-533, 9/4/02)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF ONEIDA AND MOHAWK VALLEY COMMUNITY COLLEGE. The ALJ dismissed a petition for unit placement. Because a petition for unit placement is a "mini-representation proceeding", the appropriateness of the unit was placed in issue. Here, noting that the atissue employees appear to share a significant community of interest with those in the existing unit, the ALJ held that the existing (and, therefore, the proposed) bargaining unit was inappropriate, as a matter of law. The ALJ dismissed the petition because the existing unit includes employees who are employed by both the County and a joint employer, comprised of both the County and the College. (ALJ Quinn, CP-793, 9/13/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, WAYNE COUNTY LOCAL 859, TOWN OF ONTARIO BLUE COLLAR UNIT 9111 AND TOWN OF ONTARIO. CSEA's unit clarification petition was dismissed as the recognition clause of the parties' agreement excluded salaried personnel. The unit placement petition went forward, however, as PERB is not bound by the agreement of the parties with regard to unit composition. The title of Assistant Building Inspector/Maintenance Mechanic was found to share a community of interest with employees in the blue-collar unit and, thus, was placed therein. The Town's defense that the person encumbering the title was a public officer and not a public employee was dismissed, as was the defense that the employee was managerial or confidential. (ALJ Doerr, CP-798, 10/07/02)

UNITED FEDERATION OF POLICE OFFICERS, INC. AND TOWN/CITY OF POUGHKEEPSIE WATER TREATMENT FACILITY AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ dismissed a certification petition filed by the Federation, finding that it was time-barred pursuant to §201.3(e) of PERB's Rules of Procedure. (ALJ Mayo, C-5205, 8/30/02)

JOHN K. BARNES AND INCORPORATED VILLAGE OF GREAT NECK EMPLOYEES AND VILLAGE OF GREAT NECK. The Director dismissed a petition seeking certification to represent a group of seventeen employees, as being unsigned, lacking a declaration of authenticity and failing to identify the unit in the showing of interest. (Director Klein, C-5197, 5/14/02)

AMALGAMATED TRANSIT UNION, LOCAL 282 AND REGIONAL TRANSIT SERVICE, INC. ATU’s petition seeking to place the position of Farebox Technician in its unit was granted over the RTS’s assertions that employees in that title were supervisors and/or guards. (ALJ Doerr, CP-760, 5/13/02)

BYRON-BERGEN CENTRAL SCHOOL DISTRICT AND BYRON-BERGEN ADMINISTRATORS AND SUPERVISORS ASSOCIATION. The ALJ dismissed the District’s application to designate Loren Penman, Director of Learning, as managerial or confidential, finding that her duties primarily involved oversight of the work of others to insure compliance with State and Federal Laws and regulations as well as District policy. The Association’s placement petition was granted. (ALJ Doerr, E-2252 and CP-767, 5/14/02)

UNITED FEDERATION OF POLICE OFFICERS, INC., ON BEHALF OF THE DELAWARE COUNTY DEPUTY SHERIFF’S PBA AND COUNTY OF DELAWARE AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ dismissed a petition filed by the Federation seeking to place the position of Social Services Investigator within its unit, finding instead that the title is currently contained within CSEA’s unit, and has been for many years. (ALJ Mayo, CP-815, 7/11/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, ORLEANS COUNTY EMPLOYEES UNIT, ORLEANS COUNTY LOCAL 837 AND COUNTY OF ORLEANS. CSEA’s petition seeking to place the positions of working foreman (shop) and MEO leadperson, auto mechanic, MEO, senior account clerk typist and clerk in its existing county wall-to-wall unit was granted with the consent of the County. (ALJ Doerr, CP-831, 7/16/02)

SARATOGA COUNTY DEPUTY SHERIFF’S BENEVOLENT ASSOCIATION AND COUNTY OF SARATOGA AND SARATOGA COUNTY SHERIFF. A petition seeking a determination that the position of part-time Correction Officer is encompassed within an existing bargaining unit which includes Correction Officers and other jail personnel was granted. The recognition clause in the parties’ collective bargaining agreement specifies all employees, and the ALJ found part-time Correction Officers are public employees, therefore eligible for inclusion within the at-issue unit. (ALJ Mayo, CP-754, 7/5/02)

ANTHONY J. LOMBARDO AND VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT AND LOCAL 74, SEIU, AFL-CIO. A petition to decertify Local 74 as the bargaining representative of District Supervisory Aides was dismissed upon a failure to file a proper declaration of authenticity. (Director Klein, C-5192, 4/9/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND DORMITORY AUTHORITY OF THE STATE OF NEW YORK AND UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS, LOCAL 2110. A petition seeking a determination whether certain titles should be placed into petitioner's bargaining unit was dismissed because the parties agreed that the titles are already encompassed within the scope of that unit pursuant to the terms of their recognition clause and a "tripartite" agreement between the employer and the two unions representing the in-issue title. (ALJ Quinn, CP-786, 2/13/02)

LACKAWANNA COMPETITIVE EDUCATIONAL SECRETARIES AND LACKAWANNA CITY SCHOOL DISTRICT. The Union's unit clarification petition seeking the inclusion of the title, part-time clerk , in its bargaining unit was granted. Part-time clerical employees had historically been included in the unit. In addition, provisions of the parties' collective bargaining agreement indicated an intention to include part-time clerical employees in the unit. (ALJ Doerr, CP-785, 3/11/02)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK (STATE INSURANCE FUND) AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ held that certain titles are encompassed within the scope of PEF's unit and that others should be placed in that unit. The new titles were the product of a restructuring of existing titles, of which the grade 18's were in PEF's unit and the grade 14's and the grade 13-trainees were in CSEA's unit. The trainees were in a transitional position automatically advancing to grade 14 until the restructuring. Under the restructuring, the grade 13's and 14's are transitional titles that automatically advance to grade 18. Applying the criteria that the Board used in fashioning the PEF unit, the ALJ held that the new grade 18's were encompassed within the scope of that unit. According to the ALJ, the elimination of the low level supervisory duties previously performed by the grade 18's did not warrant a contrary conclusion. However, finding that the grade 13's and 14's were now both transitional titles leading to the grade 18 position, and that they all perform substantially similar duties under common supervision, the ALJ held that the bargaining interests of the grade 13 and 14 trainees are substantially similar, if not identical, to those of the grade 18's. Therefore, he placed those titles in PEF's unit. (ALJ Quinn, CP-739, 3/15/02)

BUFFALO COUNCIL OF SUPERVISORS AND ADMINISTRATORS (BCSA) AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO AND IN THE MATTER OF BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO. An application by the District for the designation of three newly created Assistant Superintendents for Leadership and Evaluation as managerial was granted as a result of their participation in the Superintendent's weekly cabinet meetings, where they provide advice and recommendations to the Superintendent regarding school operations; their participation in the handling and resolution of Buffalo Teacher Federation grievances; and their anticipated role in collective bargaining. BCSA's petition for unit clarification seeking to include the title in its unit was denied due to the managerial designation. (ALJ Fitzgerald, CP-764 and E-2258, 4/11/02)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 264 and NIAGARA FRONTIER TRANSPORTATION AUTHORITY. The employer's objection to a petition for certification of a bargaining unit consisting of the transportation supervisors was dismissed. The fact that the supervisors oversee employees within the three distinct areas of bus, light rail and paratransit operations, does not negate the community of interest among them where there is a commonality in work assignment, work rules, wages and benefits. (ALJ Fitzgerald, C-5155, 1/30/02).

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Management / Confidential

TOWN OF ORANGETOWN. An administrative law judge determined that the Town's personnel administrator was appropriately designated managerial. The employee, who was unrepresented, consented to the designation. (ALJ Quinn, E-2287, 11/13/02)

CONNETQUOT CENTRAL SCHOOL DISTRICT OF ISLIP. Where stenographer had confidential duties as defined in the Act, confidential designation was warranted. (ALJ Cacavas, E-2284, 11/25/02)

KINGS PARK CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC, LOCAL 1000, AFSCME, AFL-CIO. The District's application to designate the Secretary to the Administrator for Finance as confidential pursuant to §201.7 of the Act was granted upon CSEA's consent to the designation. (ALJ Blassman, E-2292, 12/12/02)

AUBURN ENLARGED CITY SCHOOL DISTRICT. The District's application to designate the assistant superintendent for personnel, finance and operations and the school business executive as managerial and the school district treasurer and deputy school district treasurer as confidential pursuant to §201.7 of the Act was granted upon consent. (ALJ Comenzo, E-2279, 12/13/02)

HENDRICK HUDSON CENTRAL SCHOOL DISTRICT. The District's application to designate the senior office assistant (automated systems) as confidential pursuant to §201.7 of the Act was granted upon consent. (ALJ Comenzo, E-2286, 12/13/02)

UNITED SOUTHAMPTON EDUCATION OFFICE PERSONNEL, NYSUT, AFL-CIO AND SOUTHAMPTON UNION FREE SCHOOL DISTRICT. Where the administrative assistant has a confidential relationship to the Superintendent of Schools and the Assistant Superintendent for Business in their performance of managerial responsibilities, a confidential designation was warranted. (ALJ Cacavas, E-2285, 9/30/02)

TOWN OF ULSTER. The ALJ found that the Town's municipal bookkeeper performs duties warranting her designation as confidential. In particular, the bookkeeper's intimate knowledge of the Town's anticipated revenues and expenditures exposes her to the Town's plans with respect to labor relations. (ALJ Quinn, E-2267, 10/17/02)

RUSH-HENRIETTA CENTRAL SCHOOL DISTRICT. The Secretary I to the District's Director of Human Resources was designated as confidential in accordance with the criteria set forth in §201.7(a) of the Act, as the factual averments in the application and supporting documents justified the designation. The Union that represents the Secretary I designated did not oppose the application. (ALJ Doerr, E-2276, 10/18/02)

PENFIELD CENTRAL SCHOOL DISTRICT. The Administrative Assistants in the District's Personnel Office, Business Office, Superintendent's Office and Business Office were designated confidential in accordance with the criteria set forth in §201.7(a) of the Act as the factual averments in the application and supporting documents justified the designations. The union that represents the titles designated did not oppose the application. (ALJ Doerr, E-2277, 10/18/02)

CITY OF PLATTSBURGH. Giesele LaClair, Stenographer to the Mayor of the City of Plattsburgh, was designated as confidential in accordance with the criteria set forth in §201.7(a) of the Act as the factual averments in the application and supporting documents justified the designation. The union that represents the stenographer consented to the designation. (Director Klein, E-2269, 10/25/02)

EAST MEADOW UNION FREE SCHOOL DISTRICT. The District’s application to designate the Clerical Administrative Assistant I as confidential pursuant to §201.7 of the Act was granted, despite CSEA’s initial opposition, when CSEA withdrew its response and refused to appear at the hearing. By its actions, CSEA was deemed to have consented to the designation. (ALJ Blassman, E-2264, 5/13/02)

TULLY CENTRAL SCHOOL DISTRICT. Upon consent, the District’s superintendent of schools and school business administrator were designated managerial and the secretary to the superintendent, senior account clerk, school district treasurer and account clerk were designated confidential pursuant to §201.7 of the Act. (ALJ Comenzo, E-2257, 5/14/02)

COUNTY OF DUTCHESS AND DUTCHESS COMMUNITY COLLEGE. The ALJ designated certain employees as confidential on consent of the union that represents them. (ALJ Quinn, E-2247, 5/15/02)

ROTTERDAM MOHONASEN CENTRAL SCHOOL DISTRICT. Upon consent, the District’s Stenographer to the Superintendent of Schools, Senior Stenographer to the Assistant Superintendent of Curriculum and Instruction, Senior Stenographer to the Assistant Superintendent for Business and the Senior Account Clerk for Personnel and Human Resources were designated confidential pursuant to §201.7 of the Act. (ALJ Comenzo, E-2261, 5/17/02)

CONNETQUOT CENTRAL SCHOOL DISTRICT. The District’s application to designate Patricia Avino, the Senior Clerk Typist/Business, as confidential pursuant to §201.7 of the Act was granted upon consent of the Connetquot Clerical Association, Inc.. (ALJ Blassman, E-2271, 6/24/02)

EAST AURORA UNION FREE SCHOOL DISTRICT. Merry Pelow, Principal Clerk Typist, was designated confidential with the consent of the East Aurora Civil Service Personnel Association. (ALJ Fitzgerald, E-2274, 7/8/02)

ITHACA HOUSING AUTHORITY. The Principal Account Clerk and the Tenant Relations Coordinator were designated confidential in accordance with the criteria set forth in §201.7(a) of the Act, on consent of the Union that represented them, as the factual averments in the application and supporting documents supported the designation. (ALJ Quinn, E-2260, 2/21/02)

SUSQUEHANNA VALLEY CENTRAL SCHOOL DISTRICT. Upon consent, the District's Payroll Clerk was designated as confidential pursuant to §201.7(a) of the Act. (ALJ Comenzo, E-2262, 2/26/02)

SOUTHOLD UNION FREE SCHOOL DISTRICT. Pursuant to the parties' stipulations, Patricia DiGregorio, School District Clerk/Clerk Typist, whose duties satisfied criteria set forth in §207.1(a) of the Taylor Law, was designated confidential employee. (ALJ Cacavas, E-2265, 3/4/02)

BRENTWOOD UNION FREE SCHOOL DISTRICT. Pursuant to the parties' stipulations, employees whose duties and responsibilities satisfied criteria set forth in §201.7(a) of the Taylor Law were designated as follows - confidential: Margaret Cameron (Principal Clerk/Typist); Managerial: Alan J. Lazarus (Director of Funded Programs and Compliance). (ALJ Cacavas, E-2266, 3/20/02)

TOWN OF SOUTHAMPTON. Upon consent, the Town's Personnel Assistant and Senior Legal Stenographer were designated confidential employees pursuant to §201.7(a) of the Act. (ALJ Blassman, E-2255, 4/16/02)

BERLIN CENTRAL SCHOOL DISTRICT. The Executive Secretary to the Superintendent was designated as confidential in accordance with the criteria set forth in §201.7(a) of the Act. (Director Klein, E-2270, 4/24/02)

CHEEKTOWAGA CENTRAL SCHOOL DISTRICT. The application for designation of the following employees as confidential was granted: Marilyn Krawczak, Senior Account Clerk Typist; Karen Pszczolkowski, Personnel Clerk; Mildred Ziarniak, Senior Clerk Typist; Yvonne Janak, Senior Clerk Typist; and Geraldine Dean, Senior Clerk Stenographer; due to confidential duties performed for School Business Administrator and Assistant Superintendent. The application was denied as to Catherine Wawrzyniak, Payroll Clerk. (ALJ Fitzgerald, E-2259, 4/29/02)

WATERLOO CENTRAL SCHOOL DISTRICT. With the consent of the bargaining agent, Debra Doverspike, Data Entry Operator - District Office, was designated confidential pursuant to the District's application. (ALJ Mayo, E-2268, 4/29/02)

UNION-ENDICOTT CENTRAL SCHOOL DISTRICT. The ALJ granted an application to designate an employee as confidential based on the factual averments in the application and undisputed documents to supplement the application. Although the supplemental documents were submitted outside of the parties' stipulated record at the request of the ALJ, such documents were held to be admissible, inasmuch as application processing is investigatory, not adversarial. (ALJ Quinn, E-2249, 1/08/02)

BERLIN CENTRAL SCHOOL DISTRICT. Upon consent, the Assistant Treasurer was designated confidential. (Director Klein, E-2263, 1/8/02)

HUNTINGTON UNION FREE SCHOOL DISTRICT. Upon consent, the District's Payroll Supervisor was designated as a confidential employee pursuant to §201.7 of the Act. (ALJ Blassman, E-2256, 1/10/02).

WESTCHESTER COUNTY HEALTH CARE CORPORATION. The ALJ issued a supplemental order designating certain employees as confidential on consent of the employee organization that represented the title. (ALJ Quinn, E-2191, 1/28/02)

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Improper Practices

VESTAL POLICE BENEVOLENT ASSOCIATION, INC. AND TOWN OF VESTAL. The ALJ found that the Town violated the Act when it unilaterally discontinued an eight year past practice of rewarding unit members with compensatory time for the nonutilization of sick time. (ALJ Mayo, U-23249, 11/1/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO; DELAWARE COUNTY LOCAL 813, SIDNEY HOSPITAL UNIT 6612 AND SHERBURNE EARLVILLE CENTRAL SCHOOL DISTRICT. The District's rescission of a long-standing practice of allowing unit employees' personal use of equipment from the District's maintenance/custodial department violated §209-a.1(d) of the Act. The District's defenses, including that it and the board of education lacked awareness of such use, that Article VIII (1) of the New York State Constitution prohibits such use, and that compliance with General Municipal Law §50-h by CSEA was required, were rejected. (ALJ Comenzo, U-22985, 11/4/02)

WINSTON E. BRATHWAITE AND TRANSPORT WORKERS UNION, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The charge, alleging that the TWU breached its duty of fair representation when it failed to submit a doctor's note to the Authority, which failure led to the dismissal of the charging party's disciplinary grievance and his termination from employment, was dismissed in its entirety for failure to prove that the TWU acted arbitrarily, discriminatorily or in bad faith. The record, at most, demonstrated an error that does not rise to the level of a violation of the Act. (ALJ Blassman, U-22968, 11/ 05/02)

ROCHESTER POLICE LOCUST CLUB AND CITY OF ROCHESTER. An improper practice charge, alleging that the City violated §§209-a.1(a) and (d) of the Act when it unilaterally implemented a City-wide overtime detail in conjunction with an "Anti-Crime Initiative" and refused to negotiate the impact of the overtime criteria, and when it improperly denied the Locust Club president the right to work the overtime detail, was dismissed. The charging party failed to prove either a change in past practice of assigning overtime, or a refusal to engage in impact negotiations. The (a) allegation was dismissed as untimely under the Rules, as it was first raised more than four months after the action at issue. Further, even if that allegation were timely filed, the Locust Club failed to establish that the denial of overtime to its president was in retaliation for protected activity, as opposed to a contractual issue resulting from the "full detached duty" language in the parties' collective bargaining agreement. (ALJ Fitzgerald, U-22824, 11/06/02)

COUNTY OF JEFFERSON AND JEFFERSON COUNTY SHERIFF AND JEFFERSON COUNTY SHERIFF'S EMPLOYEES' ASSOCIATION, LOCAL 3089, COUNCIL 82, AFSCME, AFL-CIO. The County's charge alleging that Local 3089 repudiated the parties' agreement regarding a moratorium on grievances having to do with job assignments was dismissed. It could not be said that Local 3089 was acting without a colorable claim of right. The dispute therefore involved a breach of contract over which PERB has no jurisdiction. (ALJ Comenzo, U-22651, 11/7/02)

INEZ ZEIGLER AND DISTRICT COUNCIL 37, AFSCME AND NEW YORK CITY BOARD OF EDUCATION. Only those persons who are members of the bargaining unit at the time an alleged breach of the duty of fair representation occurred can claim the right to fair representation. That a union mistakenly undertakes the representation of a person later found to not be a member of the bargaining unit, or continues that representation once that discovery is made, does not establish a right to the duty of fair representation. The duty of a union to respond to member inquiries falls within the duty of fair representation and applies only to those persons within the bargaining unit at the time that the alleged failure to respond occurred. (ALJ Cacavas, U-23094, 11/12/02)

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 charge, alleging that the UFT violated its duty of fair representation when it failed to properly represent Fearon in her step 1 grievance and failed to respond to her request for representation in her step 2 grievance, was dismissed in its entirety for failure to demonstrate facts upon which it might be concluded that any UFT representative acted arbitrarily, discriminatorily or in bad faith. (ALJ Blassman, U-22693, 11/13/02)

ELMIRA POLICE BENEVOLENT ASSOCIATION AND CITY OF ELMIRA. An administrative law judge determined that a charge should be deferred for a jurisdictional determination under the parties' grievance procedure, inasmuch as the charging party filed a grievance concerning the dispute at issue in the charge. (ALJ Quinn, U-23495, 11/15/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF DELAWARE. The County was under no obligation, pursuant to the Act, to execute a document proffered by CSEA and represented to be a memorandum of agreement. The parties met in labor/ management meetings, without agreement to negotiate. (ALJ Comenzo, U-22723, 11/18/02)

RONALD LEWIS AND PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES). Lewis filed an improper practice charge alleging that PEF had violated §209-a.2(a) of the Act when it initiated an out-of-title work grievance seeking Lewis' removal from his work position of investigator. Lewis alleged that a PEF building steward instigated the filing of the grievance to retaliate against him for signing a petition that sought the steward's removal from his PEF office. Applying the mootness doctrine, the ALJ dismissed the charge, since PEF had promptly withdrawn the out-of-title grievance after Lewis raised the matter with higher level PEF representatives and since neither Lewis' position, pay, nor benefits had been affected. In finding the matter moot, the ALJ found significant the fact that the grievance had not been filed by the steward, but by a PEF representative who was clearly without improper motivation. The ALJ also noted that, should Lewis in the future file a charge demonstrating a repetition of the problem, dismissal on the ground of mootness might be inconsistent with the policies of the Act and/or an exception to that doctrine might apply which would prevent dismissal of the charge. (ALJ Blassman, U-23108, 11/26/02)

THOMAS ABRAHAM AND TRANSPORT WORKERS UNION, LOCAL 100, AND NEW YORK CITY TRANSIT AUTHORITY. Abraham's charge, alleging that the TWU violated §209-a.2(c) of the Act when it failed to seek an adjournment of a step 1 hearing to a date when Abraham would be available, was dismissed for failure to prove that the TWU's actions were either arbitrary, discriminatory or taken in bad faith. (ALJ Blassman, U-22012, 11/27/02)

DIANA L. SIEGEL AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Siegel's charge, alleging that the UFT breached its duty of fair representation when it refused to take her grievance to arbitration and failed to properly process her internal UFT appeal of the decision not to process her grievance, was dismissed for failure to prove that the UFT acted in an arbitrary, discriminatory, or in bad faith manner. Although Siegel's internal UFT appeal was not processed according to regular procedures, at most, the record showed an error that did not harm Siegel and that was not intentional or invidious. The record showed that several UFT representatives attempted to assist her and that the appeal committee's decision that Siegel's case was not meritorious was made in good faith. (ALJ Blassman, U-22972, 11/27/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, SARATOGA COUNTY GENERAL UNIT OF SARATOGA COUNTY LOCAL 846 AND COUNTY OF SARATOGA. A charge, which alleged that the County violated the Act when it refused to pay health insurance benefits for unit members who availed themselves of the statewide early retirement incentive until such members reach the age of 55, was deferred to the parties' contractual grievance procedure. (ALJ Mayo, U-23819, 12/3/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 844, CSEA VILLAGE OF SPRING VALLEY UNIT 8357 AND VILLAGE OF SPRING VALLEY. The Village was found to have violated the Act when its then mayor, motivated by animus toward an employee due to his unit presidency, sought civil service reclassification of the position to which the employee had applied in order to add a requirement which he knew the employee did not possess. (ALJ Comenzo, U-22511, 12/3/02)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. Amendments which would allege separate violations of the Act must be filed within four months of the date of their occurrence. However, events which would be untimely as separate violations of the Act may be introduced at hearing to elaborate upon the charge. A charge alleging a violation of §209-a.1(a) of the Act may be brought by a union on behalf of members where there is an allegation that the Employer interfered with witnesses in a grievance arbitration. To effectuate a waiver, an individual or entity must intentionally relinquish a known right, possessing knowledge of its existence and exhibiting an intent to relinquish it. The legal analysis calls for examination of whether the language of the waiver covers the matter argued to be waived, whether the waiver is unenforceable as against public policy, and whether the waiver was clear and knowing. A party's waiver of its right to file an improper practice charge is not violative of public policy. (ALJ Cacavas, U-23093, (12/11/02)

CITY OF POUGHKEEPSIE AND POUGHKEEPSIE PROFESSIONAL FIRE FIGHTERS' ASSOCIATION, LOCAL 596, I.A.F.F., AFL-CIO-CLC. The ALJ dismissed a charge which alleged that the Association had violated the Act by submitting several allegedly non-mandatory proposals to compulsory interest arbitration. The proposals, which established appeal procedures for the determination of GML §207-a benefits and light duty assignments, were found to be mandatory subjects of negotiation. (ALJ Mayo, U-23563, 12/12/02)

THE COUNCIL OF SUPERVISORS AND ADMINISTRATORS (CSA) AND BOARD OF EDUCATION OF THE CITY SD OF THE CITY OF NEW YORK. CSA filed an improper practice charge which alleged that the Board of Education of the City School District of the City of New York (Board) violated §209- a.1(d) of the Public Employees' Fair Employment Act (Act) by failing to provide, upon request, the draft contingency budget plans from each New York City Board of Education superintendent who has responsibility for schools. The ALJ dismissed the charge, finding that an employer does not have an obligation to provide draft budget plans to an employee organization. Noting that the record did not indicate that the Board misled the CSA or misrepresented the status of the plans, the charge was dismissed. (ALJ Maier, U-23298, 12/16/02)

LOCAL 287, IAFF, UNIFORMED FIREFIGHTERS ASSOCIATION, AFL-CIO, CITY OF LONG BEACH AND CITY OF LONG BEACH. The ALJ dismissed the charge, submitted on the basis of a stipulated record, alleging a violation of §§209-a.1(a), (b) and (c) of the Act. The basis of the violations alleged was that the City barred the Association president from department premises after he was suspended from service for alleged disciplinary infractions. A clause in the parties' collective bargaining agreement permitted the Association to use an office in the department for union business. The ALJ held that, in light of the parties' stipulation that the fire commissioner issued this directive because of potential liability 5 Decisions of the Office of Representation concerns, the Association could not sustain its burden of proof that the directive was issued because of the president's protected activity. Additionally, absent improper motive, the Association could not demonstrate that the directive unlawfully interfered with the Association. The specification alleging a violation of §209-a.1(b) was dismissed since no evidence was submitted to demonstrate that the City sought to, or in fact did, compromise the Association in its role as collective bargaining representative. (ALJ Maier, U-22960, 9/9/02)

MONROE COUNTY SHERIFF POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF MONROE AND SHERIFF OF MONROE COUNTY. The County and the Sheriff were found to have violated §209-a.1(c) of the Act when, following the PBA's rejection of the fact finder's report and recommendation, the President of the PBA was denied a second release day per week for the conduct of union business. The necessary animus for a finding of a violation was established by the timing of the event and the employer's wholly pretextual business justification for the act complained of. (ALJ Doerr, U-22122, 9/11/02)

HARRY JOSEPH AND NEW YORK CITY TRANSIT AUTHORITY. Joseph's charge, alleging that the Authority violated §209-a.1(a) of the Act when it disciplined him because of his actions as a shop steward, was dismissed for failure to prove that Joseph's supervisors were improperly motivated. Although Joseph was disciplined days after he made safety complaints and filed a contractual grievance, the ALJ held that it was not credible that the supervisors' actions were improperly motivated in light of the fact that Joseph had been a steward for four years and had made numerous and far more serious complaints in the past, that there was no record evidence of prior antiunion animus or actions against Joseph by the supervisors, that the complaints made and grievance in question were of a common type, that Joseph's supervisor had warned him and given him an opportunity to avoid discipline, and that the penalty sought against Joseph was lenient. (ALJ Blassman, U-22570, 9/11/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. Where a grievance has been filed on the same action underlying an improper practice charge and the parties request that the charge be deferred to the contractual grievance procedure, it is proper to conditionally dismiss the case pending the outcome of the grievance and subject to a motion to reopen pursuant to Herkimer County BOCES or an argument by the respondent in the arbitration which forecloses a determination on the merits. (ALJ Cacavas, U-23521, 9/12/02)

DRYDEN EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION, NEA/NY, NEA AND DRYDEN CENTRAL SCHOOL DISTRICT. The ALJ found that the District violated §209-a.1(d) of the Act (U-22953) when it unilaterally transferred welding tasks to a non-unit person. However, he dismissed a charge alleging that the District violated the same provision of the Act by unilaterally transferring painting work to non-unit persons (U-22944). On a procedural note, after discussing the applicability of Education Law §3813(1) to PERB's improper practice proceedings, the ALJ considered himself constrained to apply that provision because the charges alleged a refusal to negotiate. However, he found that the Association had substantially complied with the notice requirements by delivering to the District copies of the charges that it previously filed with PERB within 90 days of when the "cause of action" accrued. (ALJ Quinn, U-22944 & U-22953, 9/13/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (SUNY OSWEGO). A unit employee was reinstated to a portion of his probationary employment because the employer, in terminating his probationary appointment, considered the bargaining agent's intervention on his behalf regarding certain of his employment concerns, which consideration was introduced into the probationary process due to the union animus of the employee's immediate supervisor. (ALJ Comenzo, U-22017, 9/30/02)

SUPERVISORY, TECHNICAL, EXECUTIVE AND PROFESSIONAL ASSOCIATION AND WAPPINGERS CENTRAL SCHOOL DISTRICT. An improper practice charge alleging that the District violated the Act when it unilaterally changed and increased the work hours of a unit employee was conditionally dismissed when the parties indicated that a grievance had been filed on the same issue and was proceeding to arbitration. (ALJ Mayo, U-23679, 10/3/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, SARATOGA EDUCATIONAL LOCAL 864 AND SARATOGA SPRINGS CITY SCHOOL DISTRICT. The ALJ held that a school district failed to satisfy its statutory bargaining obligations before transferring exclusive bargaining unit work (the behind-the-wheel component of a bus driver training program) to non-unit persons. (ALJ Quinn, U-23095, 10/3/02)

UNITED PUBLIC SERVICE EMPLOYEES UNION, TCU, AFL-CIO AND NORTH SHORT CENTRAL SCHOOL DISTRICT. The ALJ found that the District had satisfied its duty to bargain and had not violated the Act when it unilaterally ceased paying its part-time bus drivers double time for work performed on Sundays, although it had done so for more than 12 years. By agreeing to a term in the collective bargaining agreement (CBA) that provides for payment of double time for work performed on specified holidays, the UPSEU necessarily agreed that the drivers would not be paid double time for other work. The ALJ also noted that the CBA included compensatioin such as the rate of pay, providing for time-and-one-half pay for certain types of work, longevity pay, payment for cancelled trips, a schedule for the regular rate of pay, in addition to double time pay, which demonstrated that the UPSEU had fully negotiated the issue of the rate of pay and the employer was privileged to rely on that agreement. (ALJ Blassman, U-23191, 10/9/02)

RONALD PAGANINI AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ dismissed a charge which alleged that the union violated its duty of fair representation by failing to file a grievance on behalf of a unit member. The charge was dismissed since the record demonstrated that the union undertook a good faith investigation of the charge and determined that the grievance lacked merit. There was no evidence that the union acted in an arbitrary, discriminatory or bad faith manner, or that the employee's interpretation of the parties' collective bargaining agreement was the only possible interpretation of the clause in issue. As a result, the charge was dismissed in its entirety. (ALJ Maier, U-23182, 10/10/02)

CITY OF WATERVLIET AND WATERVLIET POLICE BENEVOLENT ASSOCIATION. The City was found to have violated §209-a.1(d) of the Act when it unilaterally imposed a residency requirement on currently employed police officers as a condition of continued employment. (ALJ Doerr, U-23287, 10/10/02)

DARLENE DAVIS AND TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. Applying the balancing test set forth in Board of Education of the City School District of the City of Albany, 6 PERB 3012 (1973), the ALJ held that the Authority did not violate the Act when it refused to provide the TWU with records it sought to represent Davis, a unit member, in a disciplinary matter, including disciplinary records of other unit employees, complaints against a non-unit supervisor, and records of employee assignments. Some of the records had never existed or did not exist at the time the request was made and the Authority, therefore, had no obligation to produce the documents. As to other requests, the TWU's failure to identify in its requests to the Authority the relevance of, and need for the information to, its representation of Davis, balanced against the Authority's interests, including its interest in maintaining employee privacy, weighed against requiring the production. The allegation that the Authority unlawfully disciplined Davis in retaliation for protected activity was dismissed on the ground that Davis' supervisors were not motivated by Davis' protected activity, but by her misconduct. (ALJ Blassman, U-22244, 10/15 /02)

DAVID L. KIBLER AND STATE OF NEW YORK (OFFICE OF GENERAL SERVICES) AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed, as being untimely, a charge alleging, as amended, a violation of §209-a.1(a) of the Act by the State for retaliation for filing grievances and a violation of §§209-a.2(a) and (c) of the Act by CSEA for failure to address claims of harassment by the State. (Director Klein, U-23727, 10/22/02)

NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK. The ALJ dismissed a charge which alleged that the State had retaliated against PEF for filing an improper practice charge. Although the filing of the charge was protected activity, the ALJ concluded that the State's actions and response to said charge were driven by legitimate business reasons, not anti-union animus. (ALJ Mayo, U-22178, 10/30/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, RENSSELAER COUNTY LOCAL 842, TOWN OF NORTH GREENBUSH UNIT AND TOWN OF NORTH GREENBUSH. The bargaining agent's claim of an improper denial of access to the Town's highway garage to conduct a health and safety inspection on a date and at a time designated by the bargaining agent was dismissed. As a bargaining agent has no general right under the Act to unilaterally schedule such a visit and as there were no record facts evidencing a necessity to do so, the allegation that the employer's refusal violated the bargaining agent's access as of right under the Act was dismissed. The bargaining agent's claim of past practice was also dismissed, as the past access set forth on the record was not of a type or frequency to support that allegation. Finally, that the employer's representative "felt betrayed" by representatives of the bargaining agent the day before because a safety violation was issued against the employer at an off-site location did not establish improper motive. (ALJ Comenzo, U-22842, 8/5/02)

JEFFREY HARRIS AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed as being untimely a charge alleging a breach of duty of fair representation, noting that the four month period of limitation for the filing of a charge is measured from the date of the breach and not from the date when notice of an award flowing from that breach is communicated. (Director Klein, U-23508, 8/6/02)

SCHENECTADY-ALBANY-SCHOHARIE BOCES FACULTY ASSOCIATION, NYSUT, AFT, AFL-CIO AND CAPITAL REGION BOCES. Capital Region BOCES was found to have violated §209-a.1(d) of the Act when it unilaterally assigned a sixth preparation to Association teachers who already had five daily preparations, four of which were outside of their areas of certification. The assignment was found to be an improper increase in the teachers' mandatorily negotiated workload. (ALJ Comenzo,U-22898, 8/12/02)

AFSCME COUNCIL 66, LOCAL 930, AFL-CIO, ERIE COUNTY WATER AUTHORITY BLUE COLLAR EMPLOYEES UNION AND ERIE COUNTY WATER AUTHORITY. An improper practice charge, alleging a violation of the Act by the Authority's subcontracting the installation of new water meters at its commercial pit locations was sustained, where the work was found not to be distinguishable from the unit work. The Authority's argument that unit employees would not be able to replace the meters due to their other duties was rejected, based on the Board's decision in Union-Endicott Central School District, 29 PERB §3056 (1996), that a project requiring more of the same work as performed by unit employees is not a sufficient basis to defeat the unit's exclusivity over the project. Fitzgerald, U-22456, 8/14/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, RENSSELAER COUNTY LOCAL 842, TOWN OF NORTH GREENBUSH UNIT AND TOWN OF NORTH GREENBUSH. The ALJ held that the Town violated §209-a.1(d) of the Act when it unilaterally subcontracted exclusive bargaining unit work on two Town projects. In reaching that conclusion, the ALJ rejected the Town's "compelling-need" defense, noting that the work in issue was severable from that which the Town argued required the subcontracting. However, the ALJ dismissed alleged violations of §§209-a.1(a) and (c), finding no evidence that the subcontracting was in retaliation for the exercise of protected rights. (ALJ Quinn, U-23039, 8/19/02)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF RENSSELAER. The charge was deferred to the parties' contractual grievance procedure, based upon UPSEU's intent to file a grievance on the same facts as pled in the charge. (ALJ Comenzo, U-23063, 8/20/02)

NEW PALTZ UNITED TEACHERS, NYSUT, AFT, AFL-CIO AND NEW PALTZ CENTRAL SCHOOL DISTRICT. The ALJ deferred an improper practice charge alleging a violation of §209-a.1(d) for a jurisdictional determination under a grievance that the charging party had filed regarding the at-issue conduct. (ALJ Quinn, U-23030, 8/28/02)

WILLIAM T. BRUNS AND COUNCIL 82, AFSCME, AFL-CIO AND STATE OF NEW YORK (DIVISION OF PAROLE). The ALJ dismissed a charge against Council 82 and the State which alleged that those parties had violated the Act by illegally entering into a stipulation of settlement regarding the charging party’s overtime claims. (ALJ Mayo, U-13349, 5/1/02)

NEW YORK STATE SUPREME COURT OFFICERS ASSOCIATION, ILA, LOCAL 2013, AFL-CIO AND STATE OF NEW YORK (UNIFIED COURT SYSTEM). The union filed a charge alleging a violation of §209-a.1(d) of the Act due to the unilateral issuance of new guidelines regarding overtime. The parties advised that a grievance had been filed which raised the same issues as the charge, and agreed to the deferral of this matter to the parties’ contractual grievance procedure. Accordingly, the ALJ issued a decision deferring the matter to the grievance procedure pursuant to Herkimer County BOCES. (ALJ Maier, U-23239, 5/2/02)

KELLI RECKARD AND WESTCHESTER COUNTY CORRECTION OFFICERS BENEVOLENT ASSOCIATION. The Director dismissed a charge, as amended, alleging violations of §§209-a.2(a) and (b) of the Act for lack of standing and for failure to plead any conduct which would arguably establish arbitrary, discriminatory or bad faith conduct. (Director Klein, U-23293, 5/6/02)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - GROVELAND CORRECTIONAL FACILITY). The ALJ found that DOCS violated §209-a.1(d) of the Act when it unilaterally terminated its long-standing practice of allowing unit employees to draw from accrued vacation leave credits to be compensated for absences previously attributed to sick leave. Noting that the collective bargaining agreement did not define the purposes for which vacation leave may be used, and that the procedures associated with taking time off did not dictate the leave credits from which employees must draw, the ALJ rejected DOCS’ argument that its conduct constituted a permissible reversion to the terms of the parties’ agreement. (ALJ Quinn, U-22223, 5/7/02)

LOCAL 100, TRANSPORT WORKERS UNION OF AMERICA AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ dismissed a charge which alleged a violation of §§209-a.1(a) and (c) of the Act when a supervisor assigned a employee to a job duty harmful to his health due to his protected activity. The Administrative Law Judge found that while the employee was engaged in protected activity, and the supervisor knew of such activity, the record did not support a finding that the assignment was because of the employee’s exercise of rights under the Act. The evidence indicated that the supervisor did not in fact make any assignment to the employee or that he was aware of the employee’s medical condition which would preclude the assignment in question. (ALJ Maier, U-22546, 5/8/02)

NIAGARA FRONTIER TRANSIT AUTHORITY POLICE BENEVOLENT ASSOCIATION, INC. AND NIAGARA FRONTIER TRANSIT AUTHORITY. The PBA’s charge, alleging that the NFTA violated the Act when it unilaterally discontinued the past practice of allowing unit employees to use an excused sick leave absence for family illness, was deferred to the parties’ contractual grievance arbitration procedure. (ALJ Fitzgerald, U-23282, 5/13/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, NASSAU LOCAL 830 AND COUNTY OF NASSAU. The ALJ held that the County violated §209-a.1(d) of the Act by unilaterally discontinuing the past practice of paying meal money to employees who worked more than ten hours on a regularly scheduled day off. The evidence showed that the employees were paid this money under these circumstances since 1981 and that these payments were continuous. The employees, therefore, had a reasonable expectation that the practice would continue, giving rise to the County’s bargaining obligation on this subject. (ALJ Maier, U-22856, 5/14/02)

AMAR J. BRADLEY AND NEW YORK CITY TRANSIT AUTHORITY. Bradley’s charge, as amended, against the New York City Transit Authority alleging violations of §§209-a.1(d) and (e) of the Act as predicated on its suspension of him, was dismissed by the Director for lack of standing. (Director Klein, U-23299, 5/14/02)

DEPUTY SHERIFF’S BENEVOLENT ASSOCIATION OF ONONDAGA COUNTY, INC. AND COUNTY OF ONONDAGA AND SHERIFF. 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-23068, 5/17/02)

OXFORD ACADEMY & CENTRAL SCHOOL TEACHERS’ ASSOCIATION, NEA/NY, NEA AND OXFORD ACADEMY & 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-23128, 5/17/02)

POLICE BENEVOLENT ASSOCIATION OF NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The ALJ dismissed a charge alleging that the State violated the Act when it unilaterally changed the long-standing interpretation of probation as it related to the departmental disciplinary procedure. The documentary evidence submitted in the charge did not make out a prima facie case. (ALJ Mayo, U-21048, 5/17/02)

ORANGETOWN POLICEMEN’S BENEVOLENT ASSOCIATION AND TOWN OF ORANGETOWN. The ALJ deferred the merits of an improper practice charge alleging a violation of the parties’ contractual maintenance of practices clause. Noting that PERB has jurisdiction over such disputes, the ALJ observed that it is PERB’s policy to refrain from asserting jurisdiction until the grievance procedure has been completed. (ALJ Quinn, U-23136, 5/20/02)

ALBANY POLICE OFFICERS UNION, LOCAL 2841, COUNCIL 82, AFSCME, AFL-CIO AND CITY OF ALBANY. A charge that the loss of prisoner transport and prisoner transport security duties to the County Sheriff’s Department violated the City’s duty to bargain was dismissed as the record contained no evidence that the City had any authority to prevent the Sheriff from taking possession of the work pursuant to various sections of the Criminal Procedure Law. That the Sheriff was using a City transport van while awaiting delivery of a Sheriff’s Department van was insufficient to support the finding of a violation. (ALJ Comenzo, U-22304, 5/22/02)

RICARDO VICTORIA AND TRANSPORT WORKERS’ UNION OF GREATER NEW YORK, LOCAL 100, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. Acts which occurred more than four months prior to the filing of a charge are barred by PERB’s four month statute of limitation. An employer is not obligated to present witnesses other than its own at a hearing nor is it required by law to provide employees with paid time off from work to enable them to testify. Where there is no showing that the employer has ignored a union’s witness list, intimidated the named employees so as to discourage them from testifying, or refused to allow them unpaid time off from work to attend a hearing, there is no violation of the Act. In evaluating a motion to dismiss made at the close of the charging party’s presentation of its case-in-chief, the truth of all the charging party’s evidence must be assumed and evaluated in a light most favorable to the charging party. A union’s refusal to subpoena witnesses requested by a grievant, without more, does not constitute a breach of the duty of fair representation. Negligence alone does not breach the duty of fair representation. (ALJ Cacavas, U-22271, 5/23/02)

JAMES A. HEALEY, JR. AND TRANSPORT WORKERS UNION LOCAL 100. The Director dismissed as being untimely a charge alleging a violation of §209-a.2(c) of the Act as to acts or omissions from 1998 to mid-2000, and found the Union to be under no duty to respond to Healey’s requests for information, made in early 2002, because his employment relationship had been earlier severed by disability retirement in 2000. (Director Klein, U-23351, 5/24/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, POUGHKEEPSIE SCHOOLS NON-TEACHING, MAINTENANCE/SCHOOL NURSE UNIT AND POUGHKEEPSIE CITY SCHOOL DISTRICT. An improper practice charge which alleged that the District violated the Act when it unilaterally determined that Medicare Part B reimbursements would no longer be provided to unit members upon their retirement was conditionally dismissed pending the outcome of a contractual grievance on the same matter. (ALJ Mayo, U-23348, 5/29/02)

DOUGLAS L. CHAUVIN AND PUBLIC EMPLOYEES FEDERATION. Chauvin’s charge alleging that PEF violated §209-a.1(a) of the Act when it removed from the employer’s bulletin board his unfavorable letter protesting PEF’s conduct in internal elections, and when it refused to permit him to post the letter on its own bulletin board while permitting another’s complimentary letter, was dismissed upon failure to correct deficiencies including lack of attestation and jurisdiction, insufficiency of facts to legally support the alleged violations and inadequacy of number of required copies. (Director Klein, U-23384, 5/31/02)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). In an interim decision, the ALJ determined that a charge could not be deferred because the alleged conduct could constitute a violation of §209-a.1(a). The conduct in-issue was the alleged denial of union access to an employee prior to an interview concerning a “critical incident” in which the employee had been involved. The ALJ held that the employee was entitled to rights commonly referred to as Weingarten rights during such interviews. (ALJ Quinn, U-22830, 5/31/02)

LOCAL 456 IBT AND VILLAGE OF RYE BROOK. The charge was deferred to the parties’ contractual grievance procedure, as the charging party has filed a grievance based on the same facts as pled in the charge. (ALJ Comenzo, U-23284, 6/12/02)

PUTNAM COUNTY SHERIFF’S DEPARTMENT POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF PUTNAM AND THE SHERIFF OF THE COUNTY OF PUTNAM. The ALJ held that the joint employer violated §§209-a.1(a) and (d) of the Act by unilaterally granting a unit employee benefits in excess of those provided under the parties’ collective bargaining agreement. The fact that a proposed budged containing the benefit was available for inspection by the general public did not constitute notice to the charging party that the benefit had been paid. Therefore, the ALJ held that the charge was timely filed. (ALJ Quinn, U-23036, 6/17/02)

LYRIC P. SMITH AND ORGANIZATION OF STAFF ANALYSTS. The ALJ dismissed a charge challenging a violation of §209-a.2(c) of the Act due to the failure of the union to respond to Smith’s inquiry. Based upon undisputed facts established during the pre-hearing conference, the ALJ dismissed the charge, finding that the Union did in fact respond in an adequate manner to Smith’s inquiry. (ALJ Maier, U-23181, 6/24/02)

PUBLIC EMPLOYEES FEDERATION AND STATE OF NEW YORK (DEPARTMENT OF LABOR). A directive ordering the cessation of “dress down Fridays” which had been in existence for five years in the Cortland office of the DOL was found to be mandatorily negotiable, the employer’s defenses that the decision was mission-related and/or that the “dress down” days had not been authorized by regional and central administrators having been rejected. (U-22872, ALJ Comenzo, 6/24/02)

SHERIFF OFFICERS ASSOCIATION, INC. AND COUNTY OF NASSAU. The ALJ held that the County violated §209-a.1(d) by unilaterally discontinuing the past practice of assigning the commanding officers of the training and data processing units vehicles on a twenty four hours, seven days a week basis. The practice had existed for a sufficient period of time to give rise to the reasonable expectation that it would continue. The ALJ rejected the County’s contentions that the vehicle assignment could be revoked since it was no longer necessary for the positions, finding that the assignment of the vehicle was not subject to this condition. (ALJ Maier, U-22837, 6/24/02)

ERIE COUNTY WATER AUTHORITY AND AFSCME COUNCIL 66, LOCAL 903, AFL-CIO, ERIE COUNTY WATER AUTHORITY BLUE COLLAR EMPLOYEES UNION. An improper practice charge, alleging bad faith bargaining by AFSCME, based on its negotiations team’s alleged failure to support ratification of a tentative agreement, and by its chief negotiator’s refusal to sign a later tentative agreement upon demand of the Authority, was dismissed. There was no evidence that any member of the negotiations team failed to support the first tentative agreement when presented for ratification; and the chief negotiator’s refusal to sign the second agreement upon demand was not, in considering the totality of the circumstances, found to violate his duty of good faith bargaining. Further, the chief negotiator’s formal acceptance of the agreement ten days later was found to have cured any impropriety on his part. (ALJ Fitzgerald, U-22437, 6/26/02)

HOPE SOBIE AND NEW ROCHELLE FEDERATION OF UNITED SCHOOL EMPLOYEES, LOCAL 280, AFT/NYSUT, AFL-CIO AND THE CITY SCHOOL DISTRICT OF THE CITY OF NEW ROCHELLE. A claim that the bargaining agent had breached its duty of fair representation under the Act by refusing to take the charging party’s grievance to arbitration was dismissed. The charging party’s interpretations of the collective bargaining agreement were not the only ones possible and the manner in which the charging party’s request for arbitration was processed evidenced a decision reached based on the merits of her claim. (ALJ Comenzo, U-21606, 6/26/02)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The TWU filed a charge alleging that the Authority engaged in unlawful interference and discrimination in violation of §§209-a.1 (a) and (c) of the Act when it refused an employee’s request for representation during questioning that the employee reasonably believed might lead to discipline. The ALJ sustained the charge, finding that §202 of the Act accords public employees a right similar to that accorded private employees in National Labor Relations Board v. Weingarten, Inc. 420 US 251, 88 LRRM 2689 (1975). The ALJ noted that the requirement that the employee write a statement in response to alleged misconduct while in the presence of his supervisors was the equivalent of questioning. (ALJ Blassman, U-22551 7/1/02)

MAURICE OPARAJI AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, NYSUT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Oparaji alleged that the UFT violated §209-a.2(c) of the Act by failling to continue to process grievances which had been filed and by refusing to file other grievances on his behalf. At the close of Oparaji’s case, the UFT moved to dismiss the charge for failure to state a prima facie case. The ALJ granted the motion since there was no factual predicate established for a portion of the allegation that grievances were filed but not processed, and there was no evidence to demonstrate that the UFT representative acted arbitrarily, discriminatorily or in bad faith in regard to the grievances which were filed on Oparaji’s behalf. The balance of the charge was dismissed based on a credibility finding by the ALJ crediting the UFT representative’s testimony that he never received the other grievances from Oparaji to be filed. Noting that this was the rare case in which there was a direct contradiction in the evidence at the close of a charging party’s case, the ALJ resolved the credibility determination against Oparaji, and dismissed the charge in its entirety. (ALJ Maier, U-22333, 7/3/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (OFFICE OF THE STATE COMPTROLLER). The ALJ dismissed a charge which alleged that the State violated the Act when it refused to provide information that CSEA deemed necessary to evaluate a grievance filed by a unit member. In an offer of proof, the State averred that the electronic information sought is automatically destroyed after five weeks, and is therefore not available for retrieval which CSEA was unable to rebut. (ALJ Mayo, U-23324, 7/8/02)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - SING SING CORRECTIONAL FACILITY). An improper practice charge which alleged that the State violated the Act when it unilaterally instituted a new policy regarding recoupment of overpayment of salary to unit members was conditionally dismissed when the parties indicated that a grievance had been filed on the same issue, and the grievance procedure culminated in binding arbitration. (ALJ Mayo, U-23195, 7/9/02)

POLICE BENEVOLENT ASSOCIATION, POLICE DEPARTMENT, COUNTY OF NASSAU, NEW YORK, INC. AND COUNTY OF NASSAU. The PBA’s charge that the County violated §209-a.1(d) of the Act when it unilaterally imposed a new evaluation procedure upon police officers was sustained to the extent that it alleged that police officers were required to participate in the procedure by placing their signature and the date next to a superior officer’s entry in a training ledger. The charge was dismissed to the extent that the PBA alleged that entries regarding police officers’ activity levels should not be made in the training ledger, since the PBA failed to prove a unilateral change in practice. The allegation challenging the use of a newly promulgated form was also dismissed and the County was found to be privileged to use it, since the form was directed to supervising officers, not police officers, and it was not to be kept as a permanent record, but was to be discarded after the precinct’s commanding officer checked that an entry had been made in the training ledger. The allegation that the County refused the PBA’s demand to bargain was also dismissed, since the PBA had not made a clear demand to bargain impact and the County’s refusal to rescind its action does not set forth a violation independent of the unilateral change. (ALJ Blassman, U-22154, 7/9/02)

BLANCA BAEZ AND THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. To show a prima facie case of retaliation under the Act, a charging party must present evidence of protected activity, knowledge by the employer and that “but for” such involvement, the adverse action would not have occurred. Timing alone does not satisfy that proof requirement. In evaluating a motion to dismiss made at the close of a charging party’s presentation of proof, the truth of all such evidence must be assumed and it must be evaluated in a light most favorable to it. The statement by an administrator that he took a charging party’s grievance personally does not, in itself, establish evidence of an intent to retaliate for its filing. So, too, a statement by that administrator that he wants the charging party out of his building, without more, does not establish animus based on protected activity. To conclude such would require far more inference from the facts than the law allows. While protected activity is indeed guarded under the Act, it does not operate to shield a person from otherwise appropriate, even if disadvantageous, consequences. Where a charging party does establish a prima facie case, the burden shifts to the respondent to show that its actions were motivated by legitimate business decisions. (ALJ Cacavas, U-22617, 7/15/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. Where a grievance has been filed on the same action underlying an improper practice charge and the parties request that the charge be deferred to the contractual grievance machinery, it is proper to conditionally dismiss the case pending the outcome of the grievance and subject to a motion to reopen pursuant to Herkimer County BOCES or an argument by the respondent in the arbitration which forecloses a determination on the merits. (ALJ Cacavas, U-23277, 7/15/02)

PORT JEFFERSON TEACHERS’ ASSOCIATION AND PORT JEFFERSON UNION FREE SCHOOL DISTRICT. The District violated §209-a.1(d) of the Act when it subcontracted the exclusive unit work of educational testing mandated by the District’s Committee for Special Education (CSE). The ALJ found that the work was appropriately defined as initial testing performed upon the request of the CSE and that the isolated instances where testing was performed by outside facilities or persons at the request of parents did not breach the Association’s exclusivity. The ALJ noted that outside testing obtained by parents prior to a student’s referral to the CSE was not work performed by or on behalf of the District and, therefore, could not breach the Association’s exclusivity. That the CSE relied upon the outside testing when evaluating a student did not change the nature of the work into District requested work. The ALJ also held that work performed by BOCES pursuant to §§1950(4)(bb) and (d) of the Education Law had not breach the Association’s exclusivity, since an employer’s obligation to bargain under the Act is suspended and a union is otherwise unable to preserve its exclusivity when the work is transferred to a BOCES pursuant to those provisions of the Education Law. (ALJ Blassman, U-21696, 7/22/02)

LOCAL 372, DISTRICT COUNCIL 37, AFSCME, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The union filed an improper practice charge which alleged that the Board of Education of the City of New York (Board) violated §209-a.1(d) by the transfer of certain unit work. The Board filed a motion to dismiss the charge due to the failure to file a notice of claim pursuant to §3813 of the Education Law. The ALJ granted the motion, since based upon Board of Education of the Union-Endicott Central School District v. PERB, 27 PERB ¶7005, 197 AD2d 276 (1994), the filing of a notice of claim is a condition precedent to the maintenance of an improper practice charge proceeding. (ALJ Maier, U-22744, 7/22/02)

BREWSTER PHILLIPS AND UNITED PUBLIC SERVICE EMPLOYEES UNION AND HAUPPAUGE UNION FREE SCHOOL DISTRICT. The employer is a party in a case alleging a breach of the duty of fair representation where the charge alleges that the bargaining agent violated the Act in its processing of a grievance under the collective bargaining agreement. Where the record is closed at the conclusion of a hearing and all parties are notified of that, additional evidence will not thereafter be considered. To prove that a union has breached its duty of fair representation, it must be shown that it acted arbitrarily, discriminatorily or in bad faith. Mere disagreement with tactics utilized or dissatisfaction with the quality of representation does not breach the duty. Even negligence or an error in judgment does not establish a violation. A union does not breach its duty of fair representation when it settles a grievance without a member’s participation. A union does not breach its duty of fair representation when it settles a matter in the interests of the unit as a whole, rather than in favor of one member. While the law requires that a union respond to the inquiries of its members, it does not prescribe a time frame other than that which reason dictates. Two months is not too long for a response where the union has already addressed the subject of the inquiry. In fact, the law does not require that the union respond to the same inquiry on more than one occasion. A union’s delay in responding to a member’s inquiry does not amount to grossly negligent or irresponsible conduct where there is no evidence of improper motivation. (ALJ Cacavas, U-22840, 7/24/02)

BAINBRIDGE-GUILFORD TEACHERS ASSOCIATION/NYSUT/AFT AND BAINBRIDGE-GUILFORD CENTRAL SCHOOL DISTRICT. The ALJ deferred an improper practice charge in which the charging party alleged a unilateral change in certain non-contractual practices. The charging party had filed a grievance under the parties’ contractual “maintenance of standards” clause. (ALJ Quinn, U-23194, 7/24/02)

RONALD B. HARRIS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND LOCAL 372, DISTRICT COUNCIL 37, AFSCME. Because of procedural and substantive deficiencies, the Director dismissed a charge, as amended, relating to breach of a duty of fair representation. (Director Klein, U-23476, 7/26/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, NASSAU LOCAL 830 AND COUNTY OF NASSAU. The ALJ held that the County violated §§209-a.1(a) and (c) of the Act by failing to promote an employee due to his filing of grievances and pursuing them to arbitration. The ALJ found, as was admitted by the County, that the County representatives were aware of the employee’s protected activity. The ALJ credited the testimony of the employee and his supervisor who testified that a County representative stated to them, on separate occasions, that the employee would not be promoted because of his union activity. The ALJ found the County’s defense to be pretextual, which lent further support to the finding of a violation of the Act. (ALJ Maier, U-22647, 7/29/02)

SAMUEL ARCE AND SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, LOCAL 74 AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Where the charging party was, at all times relevant to the charge, directly employed by a unit employee under whom he worked, and not by the school district, he is not a public employee within the meaning of the Act and the charge must be dismissed for lack of jurisdiction. (ALJ Cacavas, U-23165, 7/30/02)

TRANSPORT WORKERS UNION OF GREATER NEW YORK, AFL-CIO, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The union alleged that the New York City Transit Authority (NYCTA) violated §§209-a.1(a) and (c) of the Act by implementing a policy that employees could wear union insignia only in non-public areas. The ALJ held that the charge was untimely as the offending rule was both issued and effective more than four months prior to the filing of the charge. The ALJ held that the later re-issuance of the rule did not serve to start a new period of limitations. The charge was dismissed in its entirety. (ALJ Maier, U-21763, 2/4/02)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 912, AFL-CIO AND CITY OF DUNKIRK. An improper practice charge, alleging that the City of Dunkirk violated the Act when it subcontracted the testing of wastewater samples to an outside laboratory, was conditionally dismissed pending the outcome of the parties' grievance on the same matter. (ALJ Fitzgerald, U-22936, 2/5/02)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - GREAT MEADOW CORRECTIONAL FACILITY). An improper practice charge alleging retaliatory conduct toward a unit employee was dismissed on the ground that filing grievances containing intentional falsehoods is not protected under the Act. (ALJ Quinn, U-22322, 2/6/02)

TOWN OF YORKTOWN AND TOWN OF YORKTOWN POLICE BENEVOLENT ASSOCIATION, INC. The portion of a demand presented to interest arbitration which could be read to require negotiations on working methods and working conditions, both of which could include nonmandatory subjects of bargaining, was itself nonmandatory. The remainder of the demand, requiring solely notice, was mandatory pursuant to City of Cohoes, 31 PERB 3020 (1998), conf'd, 32 PERB 7026 (Sup. Ct. Albany County 1999), aff'd 276 AD2d 184, 33 PERB 7019 (3d Dep't 2000), appeal denied, 96 NY2d 711 (2001). The two remaining demands at issue in the charge were found to be mandatory, one concerning various elements of hours of work and the other providing compensation in the event of a reduction in the size of the bargaining unit. (ALJ Comenzo, U-22716, 2/7/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, HEALTH SCIENCE CENTER LOCAL 615 AND STATE OF NEW YORK (SUNY HEALTH SCIENCE CENTER). An improper practice charge was dismissed because the charge, as particularized, did not plead sufficient facts to establish a prima facie violation. (ALJ Quinn, U-22766, 2/14/02)

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 409 AND BUFFALO SCHOOL DISTRICT. By Interim Decision, a Motion to Dismiss grounded on a duty satisfaction defense was denied. A contract provision covering information did not extinguish the District's independent statutory right to information deemed necessary for the conduct of meaningful successor negotiations. (ALJ Doerr, U-22615 and U-22671, 2/19/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND TOWN OF NORTH HEMPSTEAD. The ALJ sustained a charge alleging that the Town violated §§209-a.1(a) and (c) of the Act when it transferred the CSEA bargaining unit president to a different division within the Building Department. The record showed that the Town would not have acted "but for" the fact that the president was absent from the office twice weekly due to his use of contractual release time, a protected activity, and that the Town knew of the reason for his absence. That the Town did not act with anti-union animus, or with the specific intent to interfere with the use of the contractual release time, was rejected as a defense, since animus is merely evidentiary and not an element of a discrimination or interference charge. The ALJ also rejected the defense that the action was taken as part of a Department-wide reorganization and to improve office efficiency, since the primary reorganization constituted the transfer of the unit president and the hiring of another employee in that division and since there were alternate means of implementing the stated objective of reducing the time to issue permits. (ALJ Blassman, U-22413, 2/19/02)

UNITED UNIVERSITY PROFESSIONS AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK - SUNY AT BUFFALO). An improper practice charge, alleging that the State (SUNY Buffalo) violated the Act when it terminated a faculty physician's opportunity to participate in his department's clinical practice plan, was dismissed for failure to prove improper motivation. However, the State's claim that PERB lacked jurisdiction in the matter on the basis that the action at issue was taken by the faculty practice plan, which is not a public employer, was rejected, due to the nature of the agreement at issue, which included both academic and clinical practice work. Moreover, the control exercised by the State over the faculty practice plans was found to bring such employment decisions within the jurisdiction of the Act. (ALJ Fitzgerald, U-22037, 3/1/02)

LYRIC P. SMITH AND ORGANIZATION OF STAFF ANALYSTS AND NEW YORK CITY TRANSIT AUTHORITY. Despite conflicting evidence regarding one issue, the charge alleging that the OSA violated its duty of fair representation was dismissed at the end of the charging party's direct case. Although a credibility determination is not usually made upon such a motion, it is appropriate when the charging party presents conflicting evidence upon his direct case and resolution of the conflict is necessary to determine the motion. The ALJ found that, after resolution of the credibility issue, the record evidence failed to establish a prima facie case that the OSA acted arbitrarily, discriminatorily, or in bad faith when it advised Smith to sign a form containing irregularities and when it subsequently failed to file a grievance challenging the irregularities with the form. (ALJ Blassman, U-22574, 3/4/02)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1037 AND CITY OF SCHENECTADY. An improper practice charge alleging that the City violated the Act when it unilaterally contracted exclusive bargaining unit work, to wit, the shut-down of water within the City, to an outside contractor, was conditionally dismissed when the parties indicated that a grievance had been filed on the same issue and was proceeding to arbitration. (ALJ Mayo, U-23096, 3/5/02)

DR. MARK L. NAGY AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK AT BUFFALO). The ALJ granted respondent's motion to dismiss, made at the conclusion of the charging party's case, finding that Dr. Nagy failed to sustain a prima facie case of improper motivation by SUNYAB when it ended his employment as a geographic full-time unsalaried Clinical Assistant Professor at its School of Medicine. (ALJ Kaufman, U-22042, 3/5/02)

POLICE ASSOCIATION OF NEW ROCHELLE AND THE CITY OF NEW ROCHELLE. The City alleged that the Association violated §209-a.2(b) of the Act by submitting nonmandatory items to interest arbitration. The Association alleged that the City violated §209- a.1(d) of the Act when its response to the petition for compulsory interest arbitration included nonmandatory items. The Association's charge was dismissed. The City's charge was granted, in part, when the Association was ordered to withdraw a proposal seeking compensatory time in lieu of overtime payments in accordance with the Fair Labor Standards Act (FLSA). As there was no underlying agreement, as required by the FLSA, the proposal could not be imposed by the interest arbitration panel. The Association was also ordered to withdraw a minimum manning proposal as it was found to be nonmandatory. (ALJ Doerr, U-22663, U-22724, 03/11/02)

WESTHAMPTON BEACH POLICE BENEVOLENT ASSOCIATION AND INCORPORATED VILLAGE OF WESTHAMPTON BEACH. The ALJ dismissed a charge alleging that a position was abolished and the officer demoted because of protected activity. The ALJ reviewed the criteria for determining whether an action constitutes protected activity, and found that the employee had engaged in activity protected by the Act, and the Village was aware of such activity. The Village's actions, however, were motivated due to the operational and fiscal concerns of the department. ( ALJ Maier, U-22411, 3/14/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND VILLAGE OF OCEAN BEACH. The ALJ held that the Village violated §§209-a.1(a), (c) and (d) of the Act when it rescinded the past practice of granting Lincoln's Birthday as a paid holiday after the employees voted to certify the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO as their collective bargaining representative. The ALJ concluded that the timing of the recision of the holiday together with comments made by the deputy mayor, and no legitimate reason having been advanced, demonstrated that the Village acted because of the employees' protected activity. The Village also violated §209-a.1(d) of the Act by unilaterally changing the past practice which had been in effect for five years. The Village handbook, which stated that holidays would be observed as adopted annually by the Village, was not a sufficiently express condition permitting the Village to unilaterally rescind the practice. (ALJ Maier, U-22474, 3/21/02)

TRANSIT SUPERVISORS ORGANIZATION AND NEW YORK CITY TRANSIT AUTHORITY. Where the respondent moved to amend its answer to assert the affirmative defense of timeliness after the last day of hearing and at the close of the record in the case, the motion was denied. Allowing the respondent's late attempt to assert the defense would pose either prejudice to the charging party, which had no opportunity to present evidence, or undue delay to the process in the event that the record were reopened. Collateral estoppel precludes parties from relitigating, in a subsequent proceeding, issues of fact or law clearly raised in a prior action or proceeding and decided against the party or those in privity, whether or not the causes of action are the same. Where the issue in the prior proceeding was different, application of the doctrine is inapplicable. Judicial estoppel is applicable where a party received a favorable result in a prior action as to the interpretation of a fact in issue. Where a prior decision rested on a threshold finding of untimeliness, rather than a substantive finding, judicial estoppel is not appropriately applied. So, too, where the passage of significant time may make reliance on the earlier facts erroneous, judicial estoppel should not apply. The employer's acknowledgment that a non-unit employee was assigned to unit work on a day-to-day basis establishes unlawful subcontracting. That such assignment was allegedly limited to that one person and ceased after a period of time does not negate its unlawfulness. (ALJ Cacavas, U-22541, 3/27/02)

MICHAEL D. MAYNARD AND NEWFANE CENTRAL SCHOOL DISTRICT. A charge alleging that the District violated §§209-a.1(a) and (b) of the Act was dismissed upon a failure to correct deficiencies including lack of attestation, insufficiency of facts to support the alleged violations, inadequacy of number of copies of attachments required for filing and geographical conditioning by Maynard of his availability to participate in a pre-hearing conference and hearing. (Director Klein, U-23168, 4/2/02)

MICHAEL D. MAYNARD AND LOCAL 872, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed a charge alleging violations of §§209-a.2(b) and (c) upon lack of standing by an individual to prosecute a §209-a.2(b) violation and for failure to comply with Rules requirements addressed to attestation, sufficiency of facts to support a violation of §209-a.2(c), number of copies of attachments, information as to address and identity, and availability to participate in a pre-hearing conference and formal hearing. (Director Klein, U-23169, 4/2/02)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The Administrative Law Judge held that the New York City Transit Authority did not violate §209-a.1(d) of the Act by refusing to provide disciplinary documents to the Union's central office. The charge was dismissed since the evidence demonstrated that the employer had already provided the information to the union representatives at the various steps of the grievance hearings and that it would be burdensome on the employer to provide the information again and in the form requested. (ALJ Maier, U-22545, 4/4/02)

JOSEPH H. ROTHSTEIN AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An improper practice charge alleging violations of §§209-a.1(a), (b), (c) and (d) of the Act was dismissed for failure to comply with Rules' requirements relating to jurisdiction, standing, sufficiency and timeliness. (Director Klein, U-23230, 4/5/02)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC., AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The Administrative Law Judge dismissed a charge filed by the PBA on the ground that the facts adduced at a hearing did not establish a change in the procedures by which Troopers are assigned to Court appearances. (ALJ Quinn, U-22374, 4/5/02)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 264 AND COUNTY OF ERIE AND ERIE COUNTY SHERIFF. A charge complaining that the County unilaterally altered the method by which a uniform allowance was to be paid was conditionally dismissed and deferred to the parties' contractual grievance arbitration mechanism. (ALJ Doerr, U-23028, 4/11/02)

WEST GENESEE TEACHERS' ASSOCIATION, NYSUT - AFT LOCAL 3106 AND WEST GENESEE CENTRAL SCHOOL DISTRICT. A charge alleging that the District improperly extended the work year of unit employees was deferred to the Association's grievance filed under the parties' contract. (ALJ Comenzo, U-23156, 4/11/02)

TEAMSTERS LOCAL UNION 693, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO AND TOWN OF BARKER. The Administrative Law Judge held that the Town violated §209-a.1(d) of the Act when, during negotiations for the first collective bargaining agreement, it unilaterally reduced the wages of unit employees while the employees were working summer hours. (ALJ Quinn, U-22610, 4/17/02)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 1671, BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF LONG BEACH AND LONG BEACH PUBLIC SCHOOL EMPLOYEES GROUP C ASSOCIATION. Where the respondent in an improper practice charge is notified, in the hearing notice that failure to appear at the hering could result in dismissal of its answer, and thereafter fails to appear, the ALJ may exercise discretion pursuant to PERB's Rules and dismiss the answer, deem the respondent to have admitted the material facts alleged in the charge and deem the hearing to have been waived. The fact that the respondent viewed its role as merely that of stakeholder in a dispute between competing unions for member dues does not entitle it to bypass the hearing process in an improper practice charge. The existence of an intervenor in an improper practice charge where the respondent has waived its right to a hearing does not automatically require that the hearing proceed. Where the facts alleged in the charge are deemed to have been admitted and the violation can be determined on the basis of the pleadings alone, a hearing is not required. An improper practice charge brought against a school district which has withheld collected union dues from the certified bargaining agent seeks a ruling as to whether a violation of the Act occurred. That is distinct from a declaratory ruling proceeding and the improper practice charge is not converted to a declaratory ruling action because the respondent waives its right to a hearing on the charge. An employer has no authority to withhold collected dues from the certified bargaining agent. Only upon decertification by PERB does the certified agent lose its status as representative of unit employees and its entitlement to the members' dues. The employer's withholding said dues prior to decertification is a violation of §209-a.1(a) of the Act. Where an expired collective bargaining agreement contains a provision for deduction and transmittal by the employer of membership dues, the employer's failure to remit said dues is a violation of §209-a .1(e) of the Act. While PERB lacks jurisdiction over disaffiliation issues, the question of disaffiliation is not before PERB where an improper practice charge alleges that an employer unlawfully withheld collected union dues from the certified bargaining agent. The action of withholding collected member dues prior to a union's decertification is squarely within PERB's jurisdiction. But for an unequivocal and explicit relinquishment of bargaining agent status, a certified union cannot abandon the unit. Where an employer has withheld collected union dues from the certified bargaining agent, and thereby violated the Act, the remedy requires the employer to transmit said dues to the union, with interest at the maximum legal rate. The employer's claim that interest should not attach since it was acting in good faith is without merit. (ALJ Cacavas, U-22390, 4/18/02)

RANDY W. LAIRD AND NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION. Laird's charge against NYSCOPBA alleging violations of §§209-a.2(a) and (c) of the Act based on a refusal to provide representation was dismissed by the Director as lacking in facts that would arguably establish such refusal as being arbitrary, discriminatory or in bad faith. (Director Klein, U-23253, 4/18/02)

AFSCME LOCAL 1635 AND CITY OF ROCHESTER. A charge alleging, as amended, violations of §§209-a.1(a), (c) and (d) of the Act was dismissed upon a failure to establish that employer meetings with employees resulting in termination or demotion were anything more than for the purpose of imparting information on decisions earlier reached by the employer and did not arguably demonstrate interference, discrimination or a failure to bargain. (Director Klein, U-23202, 4/30/02)

TEAMSTERS LOCAL 317, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO and TOWN OF SCRIBA. The ALJ found that the Town violated §§209-a.1(a) and (d) of the Act when it engaged in bad faith bargaining over the issue of wages during the parties= collective bargaining process by improperly insisting that it had entered into a five year contract with unrepresented employees just prior to the recognition of the bargaining unit. (ALJ Mayo, U-22263, 1/3/02)

NEW YORK CITY TRANSIT AUTHORITY and TRANSPORT WORKERS UNION OF GREATER NEW YORK, LOCAL 100. A charge that the Union violated §209-a.2(b) of the Act when it sent a letter to a Court in support of an independent legal challenge by unit members to a portion of a negotiated agreement was dismissed by the Director upon a finding that the charge was deficient absent facts that would evidence the Union=s repudiation of the agreement. (Director Klein, U-22997, 1/3/02)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100 and NEW YORK CITY TRANSIT AUTHORITY. When a charging party's representative fails to appear for a PERB hearing, despite being duly notified, dismissal of the charge is appropriate particularly where the same representative had earlier been admonished for evidencing a disregard for scheduled proceedings before the agency. Section 212.4(b) of PERB's Rules of Procedure provides that the failure of a party to appear at a hearing may, in the discretion of the ALJ, constitute ground for dismissal of its pleading. (ALJ Cacavas, U-22515, 1/4/02)

LOCAL 854, INTERNATIONAL BROTHERHOOD OF TEAMSTERS and OCEANSIDE SANITATION DEPARTMENT, SANITATION DISTRICT NUMBER 7. The charge, alleging that the Sanitation District violated the Act by failing to make annual payments for work shoes and eyeglasses as required under the terms of the expired collective bargaining agreement (CBA), was conditionally dismissed pursuant to PERB's merits deferral policy. Although an alleged repudiation of the terms of a CBA, in violation of §209-a.1(e) of the Act, is a matter that is not always appropriate for deferral, a merits deferral was held to be appropriate because a pending grievance raised the same issues as the charge and both the grievance and the charge would be resolved by the interpretation of the disputed language of the parties' CBA. (ALJ Blassman, U-22831, 1/7/02).

TROY POLICE BENEVOLENT AND PROTECTIVE ASSOCIATION, INC. and CITY OF TROY. An improper practice charge alleging that the City violated the Act when it unilaterally imposed new procedures for requesting and obtaining time off was conditionally dismissed when the parties indicated that a grievance had been filed on the same issue and was proceeding to arbitration. (ALJ Mayo, U-23015, 1/8/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO and RAVENA-COEYMANS-SELKIRK CENTRAL SCHOOL DISTRICT. The ALJ dismissed a charge alleging that an employer violated the Act by unilaterally granting a unit employee benefits in excess of those to which she was entitled. The evidence did not establish that she was entitled to less benefits. (ALJ Quinn, U-22182, 1/08/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, NASSAU LOCAL 830 and COUNTY OF NASSAU. The ALJ found that the County violated §209-a.1(d) of the Act when it repudiated the mediation provision, and grievance hearing and arbitration provisions, of the parties' collective bargaining agreement (CBA). The Union was forced to seek court intervention to compel the County to comply with the arbitration provisions of the CBA and had unsuccessfully demanded that the County process cases to the hearing stage for both disciplinary and contract grievance cases. Despite such demands, the County, for a four-month period, refused to process such requests. No explanation was offered for such actions and no evidence was offered as to the attempts the County made to comply with the provisions. Additionally, no mediation took place during this period. The ALJ concluded that the County showed an intent to disregard these portions of the CBA and treat them as a nullity, and that it did not have a colorable right under the CBA to do so. (ALJ Maier, U-22081, 1/10/02)

CITY OF BUFFALO and BUFFALO POLICE BENEVOLENT ASSOCIATION. The City's charge alleging that the PBA violated §209-a.2(b) of the Act was sustained. The ALJ found that the PBA did not meet its statutory obligation when it failed and refused to negotiate in good faith for a timeline for the implementation of one-officer/two-officer patrols as required by an agreement between the parties. (ALJ Kaufman, U-22204, 1/15/02)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO and TOWN OF LLOYD. The ALJ found that the Town violated §§209-a.1(a) and (c) of the Act when it passed a resolution affecting proposed unit members' wages during the pendency of a certification petition filed by CSEA. A cause of action alleging a violation of §209-a.1(d) was dismissed, inasmuch as CSEA was found not to have standing regarding those allegations. (ALJ Mayo, U-22189, 1/23/02)

PEEKSKILL POLICE ASSOCIATION and CITY OF PEEKSKILL and LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO. The ALJ found that the employer violated the Act by unilaterally discontinuing the order in which it offered unit police officers dispatching duties on an overtime basis. He dismissed the charge to the extent it complained of the employer's termination of the practice of calling police officers away from scheduled police duties to perform the dispatching duties. (ALJ Quinn, U-22120, 1/25/02)

ONONDAGA COUNTY DEPUTY SHERIFF'S POLICE ASSOCIATION and COUNTY OF ONONDAGA AND SHERIFF. The charge was deferred to the parties' contractual grievance procedure, based upon the Association's intent to file a grievance on the same facts as pled in the charge. (ALJ Comenzo, U-22935, 1/28/02)

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Declaratory Rulings

CITY OF BUFFALO. A petition for declaratory ruling as to whether certain of the PBA's proposals, submitted to compulsory interest arbitration were mandatory, nonmandatory or prohibited was granted in part. It was found that a proposal calling for the award of punitive damages in arbitration proceedings was prohibited; a proposal seeking for police officers all the benefits enjoyed by firefighters pursuant to GML §207-a was nonmandatory as it was vague with regard to procedures and could include nonmandatory subjects. Proposals seeking an "in-the-line-of-duty" death benefit; and seeking benefits for police officers enjoyed by firefighters pursuant to GML §207-a(2), were found mandatory subjects of bargaining. (ALJ Doerr, DR-089, 2/6/02)

PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. AND THE CITY OF NEW YORK. The Administrative Law Judge issued a Recommended Declaratory Ruling and Decision of Administrative Law Judge on three declaratory ruling petitions (DR-072, DR-100 and DR-101) consolidated for hearing and decision. The petitions challenged the submission of various demands to an interest arbitration panel convened under PERB's jurisdiction to entertain disputes in the course of collective bargaining between the City of New York and the PBA after an impasse is declared. The ALJ recommended that DR-072 be dismissed since it did not raise any issue which presented an actual controversy to be adjudicated and which would not be addressed by another petition. This petition had been filed by the PBA prior to it having filed its petition for interest arbitration. In DR-100, the City challenged the submission to the panel of a number of items that were both in the parties' collective bargaining agreement (CBA), and demands not in the parties' CBA. As preliminary issues, the ALJ held that the City's petition was timely. Additionally, the ALJ rejected the City's argument that the Board's decision in City of Cohoes did not apply and applied that case to the instant proceeding. As a result, the ALJ determined that items in the CBA which were alleged by the City to be nonmandatory were properly submitted to the panel. With regard to clauses in the CBA which addressed discipline, the ALJ held that they were prohibited subjects of bargaining which can not be submitted to the panel. Those items were prohibited since a "special law", the New York City Charter and Code, reserves disciplinary matters to the sole discretion of the Police Commissioner. The ALJ relied upon City of New York v. McDonald, 201 AD2d 258, appeal denied, 83 NY2d 759 (1994) in reaching this conclusion. With regard to proposals which were not in the CBA, the ALJ concluded that proposals relating to a work schedule, health and welfare fund contribution, seniority, and sick leave policy were mandatory subjects permissibly submitted to the panel. The ALJ found to be nonmandatory a proposal seeking to increase payment of the variable supplement fund, a benefit which is fixed by statute. The ALJ recommended dismissal of the PBA's petition in DR-101 in which it alleged that the City was improperly seeking to submit demands to the panel which had been previously withdrawn. The ALJ concluded that any withdrawal of a demand was subject to the condition of the parties reaching an entire agreement. Since such condition was not met, the City was able to submit the at-issue proposals to the panel. (ALJ Maier, DR-072, DR-100 & DR-101, 4/30/02)

NEWARK VALLEY CARDINAL BUS DRIVERS, NYSUT, AFT, AFL-CIO, LOCAL 4360. A petition for declaratory ruling as to whether the petitioner's proposal that the District reimburse the cost of fingerprinting for newly hired and current bus drivers who are required to provide fingerprints was mandatory, because the proposal was found to be an issue of compensation for District employees and, therefore, a mandatory subject of bargaining. (ALJ Fitzgerald, DR-090, 1/22/02)

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