Archived Decision Summaries - January 1, 2001 through December 31, 2001

(Updated December 31, 2002)


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Decision Summaries Of The Board


Board Certifications

SACHEM SCHOOL DISTRICT EMPLOYEES UNION has been certified to represent all permanent full-time and part-time employees of the Sachem Central School District in the following job categories: custodial worker, groundsmen, head custodian, head groundsmen, automobile mechanic, maintenance mechanic, chief custodian, athletic groundskeeper, driver-messenger, console operator, roving guard, bus driver, cook, supervisory cook, food service worker, and bus monitor. All other employees are excluded. (C-5079, 12/6/01)

LIBERTY TEACHING ASSISTANTS, MONITORS AND AIDES, NYSUT, AFL-CIO has been certified to represent all full-time and part-time employees of the Liberty Central School District in the titles of teaching assistant, teacher aide and monitors including cafeteria monitors, hall monitors, study hall monitors, T1 supervisor, study hall aide, teacher aide/monitor, assistant, aide, teaching aide/assistant, aide/monitor and family worker NYS pre-K. All other employees are excluded. (C-5137, 12/6/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent employees of the Belleville Henderson Central School District in the titles of Teacher Aide, Registered Professional Nurse, Cleaner, Bus Driver, Food Service Helper, Monitor, CSE/Home School Coordinator, Cashier, Dental Hygienist, Teacher Assistant, Bus Driver/Cleaner, Monitor/Food Service Helper. All other employees are excluded. (C-5113, 10/11/01)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all full-time and part-time Teacher Aides employed by the New Hyde Park-Garden City Park Union Free School District. All other employees are excluded. (C-5119, 10/11/01)

JAMESTOWN CITY ADMINISTRATIVE ASSOCIATION has been certified to represent employees of the City of Jamestown in the titles of account clerk typist/deputy registrar, account clerk typist/finance, administrative assistant to the assessor, assessor, assistant civil engineer, assistant recreation facility manager, building maintenance supervisor, computer programmer, deputy director of parks, recreation & conservation, engineering technician, equipment manager, operations engineer, parks manager, principal account clerk/information services, programmer/analyst, real property appraiser, semi-skilled laborer/ice rink, senior account clerk typist/finance, senior typist/youth services, stenographic secretary/DPW, stenographic secretary/personnel, street & sewer supervisor, traffic engineering supervisor, and working crew chief. All other employees are excluded. (C-5065, 10/11/01)

CORTLAND COUNTY POLICE ASSOCIATION has been certified to represent employees of the County of Cortland and Cortland County Sheriff in the titles of County Police Officer, County Police Corporal, County Police Sergeant, County Police Lieutenant, and County Police Captain. All other employees are excluded. (C-5093, 10/11/01)

CSEA, LOCAL 1000, AFSCME, AFL-CIO, LACKAWANNA CITY SCHOOL UNIT, ERIE EDUCATIONAL LOCAL 868 has been certified to represent all non-teaching employees of the Lackawanna City School District. Excluded from the unit are the titles of Supervisor and Assistant Supervisor of Buildings and Grounds, Clerk of the Board of Education and those people who are designated as Managerial and Confidential Employees under Article 14, §214 of the Public Employees’ Fair Employment Act. (C-5069, 8/16/01)

WAYLAND POLICE BENEVOLENT ASSOCIATION has been certified to represent all full and part-time police officers of the Village of Wayland. Excluded from the unit is the Chief of Police. (C-5072, 8/16/01)

NSEA PER DIEM PROFESSIONAL ASSOCIATION has been certified to represent all employees of the North Syracuse Central School District in the titles of per diem teachers, per diem registered nurses, and per diem teaching assistants who have received a reasonable assurance of continuing employment as referenced in Civil Service Law, §201.7(d). All other employees are excluded. (C-5088, 8/16/01)

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 200-D/1199 has been certified to represent all regularly scheduled full-time and part-time Registered Professional Nurses and Nurse Managers (Head Nurses) employed by the Albany County Department of Residential Health Care Facilities. Excluded from the unit are the titles of Health Services Director, Assistant Health Service Director, Senior Nursing Supervisor, Assistant Director of Nursing, In-Service Director, Supervising Registered Nurses and all other employees. (C-5118, 8/16/01)

LOCAL 342, UNITED MARINE DIVISION INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO has been certified to represent employees of the Town of Southampton in the titles of lifeguard, senior lifeguard and assistant chief lifeguard. Excluded from the unit are the title of chief lifeguard and all others. (C-5032, 6/27/01)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all pages employed by the West Babylon Public Library. All other employees are excluded. (C-5047, 6/27/01)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all security aides employed by the Sewanhaka Central High School District. All other employees are excluded. (C-5070, 6/27/01)

TEAMSTERS LOCAL 693, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent all employees in the title of M.E.O.H. employed by the Town of Lisle. The title of Highway Superintendent and all other employees are excluded. (C-5074, 6/27/01)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 264 has been certified to represent all full-time and regular part-time detention aides employed by the City of Niagara Falls. All other employees are excluded. (C-5083, 6/27/01)

TEAMSTERS LOCAL 182, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent all employees of the Town of Herkimer in the titles of full-time and part-time heavy equipment operator, medium equipment operator, light equipment operator, mechanic and laborer. Seasonal employees and all other employees are excluded. (C-5087, 6/27/01)

BETHLEHEM POLICE BENEVOLENT ASSOCIATION has been certified to represent all employees of the Town of Bethlehem in the titles of police officer, police sergeant, police detective and detective supervisor. Excluded from the unit are the titles of chief of police, deputy chief of police, captain, lieutenant and all other employees. (C-5097, 6/27/01)

LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO has been certified to represent employees of the Yonkers Public Schools in the titles of Accountant, Assistant Supervisor of School Facilities and Operations, Assistant Supervisor of School Food Service I, Assistant Supervisor of School Food Service II, Personal Computer Specialist, Programmer, Programmer Supervisor, Senior Personal Computer Specialist, Senior Software Programmer, Supervisor of Accounts Payable, Chief Clerk, Assistant Supervisor Custodians, Assistant Supervisor Maintenance, Supervisor of Transportation, Planner of School Facilities, Project Coordinator/Construction, Purchasing Agent. Excluded from the unit are the following titles: Accounting Analyst, Assistant Superintendent (Operation Services), Assistant to the Director of Personnel, Chief Accountant, Director of Management Information Services, Director of Research and Evaluation, Employee Benefits Manager, Executive Assistant to the Board of Education, Executive Secretary to the Superintendent, Human Resources Manager, Secretary to the Superintendent of Schools, Senior Budget Analyst, Supervisor of School Facilities and Operations, Supervisor of School Food Service Programs. (C-4865, 5/1/01)

TEAMSTERS LOCAL UNION #693, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO has been certified to represent heavy and equipment operators employed by the Town of Binghamton. Excluded from the unit are the highway superintendent, deputy highway superintendent, secretary to the highway superintendent and all other employees. (C-5063, 5/1/01)

TEAMSTERS LOCAL 294 has been certified to represent all full-time and regular part-time employees in the Water, Street and Sanitation departments of the Village of Menands. All other employees are excluded. (C-5064, 5/1/01)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 138 has been certified to represent all employees of the Village of Great Neck in the titles of Public Works Laborers, MEOs (highway) and MEOs (Sanitation). All other employees are excluded. (C-5066, 5/1/01)

MANLIUS PROFESSIONAL FIREFIGHTERS has been certified to represent all full-time firefighters/EMTs employed by the Village of Fayetteville. All other employees are excluded. (C-5022, 3/5/01)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO has been certified to represent all dispatchers employed by the City of Rensselaer. All other employees are excluded. (C-5036, 3/5/01)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all clerical employees, aides (library, classroom) and registered nurses employed by the East Quogue School District. Excluded from the unit are the titles of secretary to the superintendent of schools, secretary to the superintendent of schools/principal, secretary to the business manager and all other employees. (C-5041, 3/5/01)

TEAMSTERS LOCAL 317, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent all full-time employees of the Village of Cayuga Heights in the following titles who have successfully completed their eight-week probationary period: senior motor equipment operator, motor equipment operator, mechanic and laborer. Excluded from the unit are employees in the titles of superintendent of public works, supervisor, elected officials, clerical, police, fire fighters, temporary employees, the seasonal technical assistant to the superintendent, and summer seasonal employees to a maximum of two such employees for a maximum of twelve weeks each per season. (C-5044, 3/5/01)

LONG BEACH PUBLIC SCHOOL EMPLOYEES GROUP C ASSOCIATION has been certified to represent all employees of the Long Beach City School District who are in secretarial, clerical, maintenance, custodial service, transportation, cafeteria, teacher aide and teaching assistant positions, and all other employees in the services negotiating unit, as defined in the Employer's By-Laws. Excluded from the unit are all temporary and casual employees. (C-5049, 3/5/01)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1044, AFL-CIO has been certified to represent teacher aides, library aides/clerks, special education aides and aides for students with special physical needs in all schools within the Monticello Central School District. All other employees are excluded. (C-5058, 3/5/01)

TEAMSTERS LOCAL 393 has been certified to represent employees of the Town of Tompkins in the titles of MEO and HEO. All other employees were excluded. (C-5038, 2/2/01)

TEAMSTERS LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEACHERS has been certified to represent all employees of the Niagara Frontier Transportation Authority in the titles of full-time and regular part-time Dispatchers/Reservationists, Relief Dispatchers/Reservationists and Dispatchers/Schedulers. All other employees were excluded. (C-5309, 2/2/01)

ICHABOD CRANE REGISTERED NURSES ASSOCIATION has been certified to represent all employees of the Ichabod Crane Central School District in the title of full-time registered nurse. All other employees were excluded. (C-4880, 2/2/01)

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Representation

BEAVER RIVER CENTRAL SCHOOL DISTRICT NON-INSTRUCTIONAL EMPLOYEES ASSOCIATION/NYSUT/AFT/AFL-CIO AND BEAVER RIVER CENTRAL SCHOOL DISTRICT. The Board remanded the matter to the Director of Public Employment Practices and Representation for further investigation after receiving information which may have indicated that the Association no longer met the requirements of §201.9(g)(1) of PERB’s Rules of Procedure for certification without an election. (C-5140, 12/6/01)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO AND STATE OF NEW YORK AND NEW YORK STATE CORRECTIONAL OFFICERS POLICE BENEVOLENT ASSOCIATION, INC. The Board determined that employees in certain titles in the Security Services Unit were most appropriately placed in a separate unit because of their status as police officers within the meaning of the Criminal Procedure Law (CPL) and/or because they were qualified and expected to perform a full range of law enforcement work. The Board relied on its earlier decision in County of Erie and Sheriff of Erie County, 29 PERB ¶3031(1996) and affirmed, in part, and reversed, in part, the decision of the Administrative Law Judge (ALJ) which had granted Council 82’s petition to fragment certain titles in the State’s Departments of Environmental Conservation and Parks, Recreation and Historic Preservation. Relying on the parties’ stipulation, the ALJ did not consider the placement of certain State University of New York (SUNY) police officer and police investigator titles. Finding that it was not bound by the parties’ definition of the most appropriate unit and that, in any event, the stipulation was subject to Board review, the Board determined that the SUNY police and investigator titles, as police officers within the meaning of the CPL who performed a full range of law enforcement duties, were more appropriately placed in the petitioned-for unit than in the Security Services Unit comprised of non-police officer titles. The matter was remanded to the Director for further processing. (C-5045, 12/6/01)

ROCKLAND COUNTY BOARD OF COOPERATIVE EDUCATIONAL SERVICES. The Board affirmed in part and reversed in part the decision of the Administrative Law Judge (ALJ), finding that three of the employees BOCES sought to have designated confidential did not meet the criteria of the Act for designation. The Board found that Judy Biase-Senior Clerk Typist, Joan Braun-Principal Clerk and Eileen Harris-Clerk Typist performed confidential duties for managerial employees involved in negotiations and contract and personnel administration. Finding that each of the three functioned in a confidential capacity to the managerial employee who supervised her, the Board determined that the test articulated in Town of Dewitt, 32 PERB ¶3001 (1999), had been met. The Board affirmed the ALJ’s designation as confidential of the other employees covered by the application: Stephanie Sundheimer-Secretarial Assistant, Judy Biase-Senior Clerk Typist, Carmela Bozzuti-Secretarial Assistant, Mary Marino-Secretarial Assistant and Laura Mastropolo-Marshag-Accountant. (E-2220, 10/11/01)

CHRISTOPHER ANDERSON, RICHARD CROWE, AND CHRISTINE MERRILL AND CITY OF GLENS FALLS AND PUBLIC EMPLOYEES FEDERATION. The Board decertified PEF as the bargaining representative of a unit of employees of the City in the titles of Electrical Director, Cemetery Superintendent, WWTP Laboratory Chemist, Principal WWTP Operator, Chief WWTP Operator, Building Inspector, Plumbing Inspector, City Forester, and Recreation Superintendent, pursuant to a decertification petition filed by Anderson, Crowe and Merrill and PEF’s disclaimer of any interest in continued representation of the unit employees. (C-5075, 6/27/01)

MIDDLE COUNTRY LIBRARY EMPLOYEES’ ASSOCIATION, NYSUT, AFT, AFL-CIO AND MIDDLE COUNTRY PUBLIC LIBRARY. The Board dismissed the representation petition filed by the Association seeking to represent a unit of employees of the Library in the titles of full-time and part-time Librarian as a result of a secret ballot election in which the Association failed to garner a majority of the valid votes cast. (C-5067, 6/27/01)

MIDDLE COUNTRY LIBRARY EMPLOYEES’ ASSOCIATION, NYSUT, AFT, AFL-CIO AND MIDDLE COUNTRY PUBLIC LIBRARY. The Board dismissed the representation petition filed by the Association seeking to represent a unit of employees of the Library in the titles of full-time and part-time Clerks, Clerk Typists, Library Clerks, Principal Library Clerks, Senior Clerks, Career Counselors, Community Relations Assistants, Librarian Trainees, Library Assistants, Community Service Aides, Pages, Computer Technicians, Custodial Aides, Custodial Workers, Custodians, Head Custodians, Guards, Security Guards, and all other full-time and part-time employees not excluded from the unit, as a result of a secret ballot election in which the Association failed to garner a majority of the valid votes cast. (C-5068, 6/27/01)

COUNTY OF STEUBEN AND CIVIL SERVICE EMPLOYEES’ ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, STEUBEN COUNTY UNIT OF STEUBEN COUNTY LOCAL #851. The Board affirmed the decision of the Administrative Law Judge (ALJ) which dismissed the petition filed by the County seeking to fragment certain mid-level supervisors from an overall unit of County employees represented by CSEA. The Board found that the at-issue employees were first level supervisors who did not exercise the kind of authority over the rank-and-file which warranted their removal from the unit. Further, the County failed to show that there had been a subversion of effective supervision by virtue of the supervisors’ placement in the overall unit. Finally, the Board found that there was no evidence of ineffective representation of the supervisors by CSEA which would compel fragmentation. The County’s petition was, therefore, dismissed. (C-4994, 6/27/01)

LOCAL 106, INTERNATIONAL UNION OF OPERATING ENGINEERS AND TOWN OF NEW SCOTLAND. The Board dismissed the representation petition filed by Local 106 seeking to represent a unit of employees of the Town in the titles of full-time and regular part-time highway, parks, water and sewer employees, where the majority of votes cast in a secret ballot election were cast against representation. (C-5019, 2/2/01)

WILLIAM ADAMS AND JONESVILLE FIRE DISTRICT AND UNITED PUBLIC SERVICE EMPLOYEES UNION. The Board decertified UPSEU as the bargaining representative of a unit of employees of the District in the title of full-time station keeper pursuant to a decertification petition filed by Adams and the results of a secret ballot election in which UPSEU failed to garner a majority of the valid votes cast. (C-5037, 2/2/01)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 118 AND TOWN OF FLEMING. The Board dismissed the representation petition filed by Local 118 seeking to represent a unit of employees of the Town in the titles of Motor Equipment Operator and Laborer as a result of a secret ballot election in which Local 118 failed to garner a majority of the valid votes cast. (C-5027, 2/2/01)

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Management / Confidential

COUNTY OF OTSEGO. The Board affirmed the decision of the ALJ dismissing the County’s application which sought the designation of Catherine Crist - Assistant Director of Nursing as confidential. The Board found that the Director of Nursing, to whom Crist reports, had not previously been designated as managerial and did not perform duties which would warrant a finding that the title was a managerial one. As the Assistant Director did not function in a confidential capacity to a managerial employee, the application was dismissed. (E-2221, 6/27/01)

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Improper Practices

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, DUTCHESS COUNTY LOCAL 814, TOWN OF POUGHKEEPSIE UNIT AND TOWN OF POUGHKEEPSIE. The Board affirmed the decision of the ALJ finding that the Town violated §§209-a.1(a) and (c) of the Act by terminating an employee who was actively engaged in a representation campaign on behalf of CSEA. The Board found that the Town had no rules barring solicitation of union membership on Town property during work hours, especially at the end of the day, at the time when the employees were engaged in personal activities, such as smoking and cleaning up. Further, the Town’s proffered reasons for terminating the employee were found to be pretextual because the employee had never been admonished or disciplined for his alleged poor work performance until he was engaged in a protected activity. The Board ordered, therefore, that the employee be offered reinstatement with back pay and benefits. (U-22231, 12/6/01)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND ROSWELL PARK CANCER INSTITUTE. The Board affirmed the decision of the ALJ, dismissing PEF’s charge which alleged that the Institute, a public benefit corporation, violated §§209-a.1(a), (c) and (d) of the Act when it unilaterally adopted a performance evaluation procedure which changed the performance evaluation procedure in effect since 1986 and referred to in the parties’ most recent memorandum of understanding. The Board found that PEF had failed to establish the new procedure was implemented for the purpose of interfering with union activity or depriving unit members of representation in violation of §§209-a.1(a) and (c). The Board further found that PEF had failed to establish that the new performance evaluation procedure policy had varied the terms of the 1986 procedure or the terms of the memorandum of understanding, which also contained provisions related to performance evaluation procedures, and dismissed the §209-a.1(d) allegation. (U-21827, 12/6/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 861, UNIT 9250, WYOMING COUNTY EMPLOYEES AND COUNTY OF WYOMING. The Board reversed the decision of the ALJ and found that the County violated §§209-a.1(a) and (c) of the Act when it terminated a probationary employee at the end of the probationary period for engaging in protected activity. Recognizing that a probationary employee can only be terminated for a good faith reason, but not for a reason which violates the law, the Board determined that the employee had been engaged in protected activity when she filed a grievance seeking reinstatement of compensatory time and that her supervisors were aware of her activity. The Board found that the reasons given by the County for the termination were pretextual and ordered the employee be offered reinstatement with back pay and benefits. (U-22099, 12/6/01)

PATRICK HAUGHEY AND NEW YORK STATE COURT CLERKS ASSOCIATION AND STATE OF NEW YORK-UNIFIED COURT SYSTEM. The Board affirmed the decision of the ALJ dismissing as untimely Haughey’s charge, which alleged that the Association violated §209-a.2(c) of the Act. The Board found that Haughey knew in November 1999 that the Association had refused to pursue a grievance on his behalf. That Haughey again requested assistance with the same grievance from the Association in October 2000 did not serve to extend the time to file the improper practice charge which alleged that the Association’s failure to represent him violated its duty of fair representation. (U-22096, 12/6/01)

SUFFOLK COUNTY ASSOCIATION OF MUNICIPAL EMPLOYEES, INC. AND COUNTY OF SUFFOLK LEGISLATURE AND THE COUNTY OF SUFFOLK. The Board affirmed the decision of the ALJ, finding that the Legislature had violated the Act by unilaterally granting a tuition reimbursement to an employee in the unit represented by the Association, even though the employee had not met the eligibility requirements in the parties’ contract and the County’s Administrative Code. Finding that the Legislature’s action was reviewable by PERB because the Legislature had acted in an executive capacity, the Board found a violation of §209-a.1(a) of the Act because the action was so destructive of the Association’s status that the Legislature could be presumed to have knowledge that its action would be coercive. (U-21051, 10/11/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK AT OSWEGO). The Board reversed the decision of the ALJ finding that the State had violated the Act when it included as a specification in a notice of discipline that an employee in the unit represented by CSEA had alleged to his supervisor that he was going to seek CSEA’s assistance over a dispute between the two. The ALJ found that the inclusion of the language in the notice of discipline was a per seviolation of §§209-a.1(a) and (c) of the Act. The Board relied upon Greenburgh #11 Union Free School District,33 PERB ¶3018 (2000), which departed from the concept of a per seviolation of §§209-a.1(a) and (c) based upon an irrebuttable presumption and which held that this concept was no longer tenable. Finding that there was here no evidence of improper motivation and the reasons proffered by the State were sufficient to overcome the presumption that the statement regarding the employee’s intention to seek union assistance was included in the notice of discipline for the purpose of having a chilling effect on the exercise of protected rights, the Board dismissed the charge. (U-21987, 10/11/01)

MARTIN FREEDMAN AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the ALJ dismissing Freedman’s charge, which alleged that the Board of Education had violated the Act by retaliating against him for filing against his union an earlier improper practice charge which named the Board of Education as a statutory party. The ALJ found that while Freedman had been engaged in a protected activity when he filed the earlier charge, he had failed to prove that any agents of the Board of Education who were responsible for the actions he complained of in the charge had any knowledge of his earlier charge or that any actions taken by representatives of the Board of Education would not have been taken “but for” Freedman’s exercise of protected rights. The Board, in affirming the ALJ’s decision, rejected Freedman’s arguments that he had made out a prima facie case and that the ALJ should not have dismissed the charge at the close of Freedman’s direct case because he was, therefore, deprived of the opportunity to cross-examine the Board of Education’s witnesses. (U-22063, 10/11/01)

SARA-ANN P. FEARON AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS. The Board denied Fearon’s motion to reconsider its earlier decision and order. Fearon argued that the Board has accepted a different standard of compliance with its Rules of Procedure where pro se litigants were involved and that, therefore, her earlier charge, which the Board found to be untimely filed, should have been accepted. The Board noted that, while it has been somewhat more lenient in the content of pleadings received from pro se parties, strict compliance to the filing requirements of the Rules has always been required. (U-22492, 10/11/01)

HOPE SOBIE AND NEW ROCHELLE FEDERATION OF SCHOOL EMPLOYEES, LOCAL 280, AFT/NYSUT, AFL­CIO AND THE CITY SCHOOL DISTRICT OF THE CITY OF NEW ROCHELLE. The Board reversed the decision of the Administrative Law Judge (ALJ) and remanded the matter to the ALJ for further proceedings. The ALJ had dismissed the improper practice charge as untimely, finding that Sobie’s request that the Federation pursue her grievance to arbitration was a repeat of her earlier request that the Federation assist her in her grievance and that the Federation’s refusal to process the grievance at arbitration was merely a reiteration of the reasons it had given to Sobie earlier when it refused to process her grievance. In such a case, the mere reiteration of an earlier position would not extend the time in which to file an improper practice charge. The Board, however, found that neither the Federation nor the District had raised timeliness as a defense in their pleadings and, indeed, the Federation had argued at the hearing that Sobie had requested no assistance from the Federation prior to her request that the Federation pursue her grievance to arbitration. Therefore, the Board found that the failure of timeliness had not first become apparent at the hearing and it was improper for the ALJ to dismiss the charge on her own motion. (U-21606, 8/16/01)

JOHN ZITO AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, NYSUT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the ALJ dismissing Zito’s improper practice charge alleging that the Federation had breached its duty of fair representation by failing to pursue a grievance over Zito’s suspension. The Federation explained to Zito its reasons for not pursuing his grievance to arbitration and offered him alternatives to arbitration. That Zito did not agree with the Federation’s position does not establish a violation as a union is given a wide degree of latitude in the filing and prosecution of grievances. (U-21928, 8/16/01)

SARA-ANN P. FEARON AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS. The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing the improper practice charge filed by Fearon, which alleged that the District and the Federation violated the Act by failing to process her grievance at Step 3 of the contractual grievance procedure. The Director dismissed the original charge as being untimely as to certain allegations and, as to other allegations which fell within the four months prior to the filing of the charge, the Director found that Fearon had failed to allege facts which, if proven, would establish that the Federation’s actions were arbitrary, discriminatory or taken in bad faith. The Board found that Fearon’s amended charge superseded the original charge and the conduct alleged to have violated the Act occurred more than four months prior to the filing of the amended charge. Finding that the pursuit of ancillary grievance proceedings did not toll the statute of limitations for filing an improper practice charge, the Board dismissed the charge and denied Fearon’s motion to reopen the matter. (U-22492, 8/16/01)

MICHAEL W. CIOCE AND WESTCHESTER COUNTY CORRECTION OFFICERS BENEVOLENT ASSOCIATION, INC. AND COUNTY OF WESTCHESTER. The Board affirmed the decision of the Director dismissing Cioce’s improper practice charge which alleged that COBA violated the Act by tabling a discussion as to whether it would proceed to arbitration with his grievance until the next meeting of its grievance committee to give Cioce the opportunity to be heard after he failed to appear at the earlier scheduled meeting. Cioce argued that he should not have to appear and that to delay the proceeding for that purpose was improper. The Board found that there was no evidence that COBA’s actions were arbitrary, discriminatory or taken in bad faith and dismissed the charge. (U-22298, 8/16/01)

JOEL FREDERICSON AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the ALJ’s determination that Fredericson did not have a good faith belief that work was being performed under unsafe conditions when he tried to halt work by unit employees of the NYCTA. However, the Board reversed the ALJ’s finding that Fredericson was engaged in protected activity when he returned to the work site, after being earlier ordered to leave, to take photographs of the allegedly unsafe conditions. Finding that implicit in the earlier order to leave the work location was an order not to return absent a compelling need to do so, the Board found that Fredericson had not been disciplined for engaging in a protected activity but for being insubordinate. (U-19228, 6/27/01)

HELEN KRESZ AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS. The Board affirmed the charge’s dismissal by the Director of Public Employment Practices and Representation. The Board found that the charge was untimely filed as to all the allegations and there were no facts pled in either the charge or the amendments to the charge which would support a finding that the District had required Kresz to record her time in retaliation for her exercise of protected rights or that the UFT had withdrawn as her representative before her disciplinary arbitration for reasons that were arbitrary, discriminatory or motivated by bad faith. (U-22249, 6/27/01)

SERBAN P. RUSE AND TRANSPORT WORKERS UNION, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the ALJ dismissing Ruse’s improper practice charge which alleged that the Authority had violated the Act by terminating his employment and that the TWU had violated the Act by failing to respond to his communications and to provide him with representation. The Board held that the ALJ correctly determined that Ruse had failed to establish that he was engaged in protected activities and that the Authority’s action was taken because of his exercise of protected rights. Based upon Ruse’s failure to make out a prima facie case, the Board also affirmed the ALJ’s finding that the TWU’s decision not to represent Ruse was based upon the parties’ contract which excluded from grievance arbitration the termination of the employment of a probationary employee.(U-21769, 5/1/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, SUNY OSWEGO LOCAL 611 AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK-OSWEGO). The Board reversed in part the decision of the Assistant Director of Public Employment Practices and Representation. The Assistant Director’s decision on the merits of CSEA’s charge that the State violated the Act when it counseled an employee in retaliation for his exercise of rights protected by the Act was not before the Board. The State took exception only to the Assistant Director’s holding that legitimate business reasons was an affirmative defense to alleged violations of §§209-a.1(a) and (c) of the Act which must be pled in the answer or waived. Relying on its earlier decision in City of New Rochelle, 27 PERB ¶3062 (1994), the Board reversed the Assistant Director’s decision in that respect. The Board has consistently held that the burden of persuasion lies with the charging party to prove by a preponderance of the evidence that the public employer acted with improper motivation. Once the charging party has met that burden, the burden of going forward shifts to the respondent to establish that its actions were motivated by legitimate business reasons. Thus, the Board held that since the burden of persuasion rests with the charging party, the respondent does not have the obligation to affirmatively plead the nondiscriminatory reasons for the actions which are the subject of an improper practice charge. Such a requirement might compromise settlement efforts and a charging party has the opportunity to seek particularization of the answer to protect against surprise. (U-21694, 5/1/01)

SCHUYLER-CHEMUNG-TIOGA EDUCATIONAL ASSOCIATION AND SCHUYLER-CHEMUNG-TIOGA BOARD OF COOPERATIVE EDUCATIONAL SERVICES. The Board reversed the decision of the ALJ which conditionally dismissed the Association’s improper practice charge alleging that the BOCES violated §§209-a.1(a) and (d) of the Act when it refused to provide information requested by the Association in its investigation of a grievance. The ALJ held that the Board’s decision in City of Cohoes supported his analysis that where the parties to a bargaining relationship have negotiated an agreement that contains terms that mirror rights and obligations under the Act, merits deferral may be appropriate where the charge alleges a failure to abide by the same statutory rights. The Board rejected the analysis, reiterating its long-held position that an alleged violation of §209-a.1(a) would not be subject to a merits deferral, unless the alleged violation of (a) was purely derivative of an alleged (d) violation. The Board further determined that it would not defer the alleged (d) violation because it was inextricably intertwined with the alleged (a) violation. The Board also found that it had jurisdiction over the alleged (d) violation because, as was stated in City of Buffalo (Fire Department), 17 PERB ¶3090 (1984), “where there is contractual language related to the subject-matter of the charge, if there exists an independent, statutory right with respect to the subject-matter, we retain jurisdiction even if the respondent’s action is also arguably in violation of the contract language.” The matter was remanded to the ALJ for further proceedings consistent with the Board’s decision. (U-21790, 5/1/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - BUTLER CORRECTIONAL FACILITY). The Board reversed the decision of the Assistant Director of Public Employment Practices and Representation which had dismissed an improper practice charge filed by CSEA that alleged that the State violated §209-a.1(d) of the Act when the administration at Butler unilaterally changed existing policy to allow inmates to operate snowplows. The Assistant Director found that because inmates perform snow-plowing at other correctional facilities, and CSEA's unit is a state-wide unit representing employees at each of the State's correctional facilities, CSEA did not establish exclusivity over the snow-plowing duties at Butler and, therefore, the State was free to assign the work to inmates. The Board reversed, finding that decisions about snow removal are not covered by any State policy or rule and are left to the discretion of the local administration of each facility. The Board reasoned that the State itself had established a discernible boundary around the duties of snow-plowing at each facility because of the nature of the work, the geographic location of the facilities and their inmate population, but primarily because the State had treated the subject as one unique to each facility and had given each facility control over the assignment of snow- plowing. That some facilities utilized inmates based upon local agreements or the decision of the facility's administration did not destroy CSEA's exclusivity at Butler. (U-20015, 3/5/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND CITY OF NEWBURGH. The Board denied the exceptions filed by the City to a determination of the Director of Public Employment Practices and Representation to accept the withdrawal of the improper practice charge filed by CSEA. The City argued that the withdrawal should not have been accepted because the City was not first consulted by the Director about its position, CSEA was pursuing a grievance on the same subject matter as the improper practice charge and the City had expended time and expense in preparing its defense to the charge. The City also argued that it was being deprived of its right to a decision by the Board on its earlier interlocutory appeal of the Director's earlier decision to reopen the case because, by accepting CSEA's withdrawal of the charge, the Director had not issued a final decision in the case which could be appealed to the Board and could include the arguments made by the City in its interlocutory appeal. The Board confirmed the Director's acceptance of the withdrawal as within his discretion and not requiring the consent or positions of the other parties to the proceeding. The Board further noted that CSEA was free to pursue a resolution of the underlying dispute through the parties' contractual grievance procedure; in fact, the City had asserted in its answer to the charge that the dispute was one which should be raised in a grievance. Finally, the Board rejected the City's argument that the matter should remain open because of the City's expenditure of time and expense in preparing a defense to the charge. The Act does not contemplate that a charging party be forced to pursue an improper practice charge that it has determined it no longer wishes to pursue just so the respondent can obtain a decision by PERB on the merits of its defenses. (U-20478, 3/5/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, WESTCHESTER COUNTY LOCAL 860, UNIT 9200 AND COUNTY OF WESTCHESTER. Pursuant to a remand from the Appellate Division, the Board modified the remedy ordered in its earlier decision on the merits of the improper practice charge filed by CSEA. The Board had ordered that the affected employee be offered reinstatement to his former position, albeit in a different department and under the supervision of a different employee, but that any back pay be conditioned on the employee's successful completion of a second probationary period. The Board modified its order, pursuant to the Court's order, to provide that the County furnish the employee with back pay with interest from the date of his discharge to the date of the offer of re- employment, with no other conditions. (U-19287, 3/5/01)

DORR GLOVER AND VILLAGE OF BELMONT AND TEAMSTERS, LOCAL 317, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO. The Board affirmed the decision of the Administrative Law Judge (ALJ) finding that the Village violated §§209-a.1(a) and (d) of the Act when it unilaterally changed its compensation system during the pendency of a representation petition filed by the Teamsters, noting that it had consistently found that an employer violates (a) and (d) when it changes the status quo while a representation petition is pending. The Board also affirmed the ALJ's determination that the case would be decided on the parties' stipulation of facts and denial of the Town's request for a hearing on disputed "major issues of fact" where the Town failed to comply with the ALJ's direction to provide her with an offer of proof identifying the issues the Town alleged were relevant and were still in dispute. (U-21162, 2/2/01)

RANDOLPH D. DRAKES AND PUBLIC EMPLOYEES FEDERATION AND STATE OF NEW YORK (BANKING DEPARTMENT). The Board dismissed exceptions filed by the charging party to a decision of the Director of Public Employment Practices and Representation (Director) dismissing his improper practice charge which alleged that PEF had violated §209-a.2(c) of the Act in its handling of a grievance he had filed against his employer, the State of New York. The charging party had failed to serve the other parties with a copy of his exceptions. Such a failure requires dismissal of exceptions when a party to the proceeding raises an objection to such a failure of service. (U-21826, 2/2/01)

JOEL FREDERICSON AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the ALJ dismissing Fredericson's charge which alleged that the Authority violated §§209-a.1(a) and (c) of the Act when it disciplined him in retaliation for his exercise of protected rights. The Board found that Fredericson's execution of a stipulation of settlement of the disciplinary charges was an effective waiver of his right to pursue the improper practice charge; and, as to the allegations not related to the settlement of the disciplinary charges, the charge was untimely filed. (U-20779, 2/2/01)

KENJAEV JOULDACH AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 237, AFL-CIO AND NEW YORK CITY TECHNICAL COLLEGE OF THE CITY UNIVERSITY OF NEW YORK. The Board affirmed the decision of the ALJ dismissing the improper practice charge which alleged that the Teamsters had violated §209-a.2(c) of the Act when it did not respond to Jouldach's request that the Teamsters challenge his discharge from employment with CUNY. Jouldach failed to appear at the scheduled hearing and telephone calls to his home phone failed to reach him. In his exceptions, Jouldach asserted only that he had not received the notice of hearing, although it was mailed to the address he had listed on his charge and he had received previous mail sent to that address. The ALJ had determined that Jouldach's failure to appear at the hearing or to correspond with PERB for four months from the date of the pre-hearing conference evidenced a failure to prosecute the charge. The Board found that there was no evidence presented to the ALJ or set forth in the exceptions that would excuse Jouldach's failure to appear. (U-21657, 2/2/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, BELLMORE SCHOOL UNIT, NASSAU EDUCATIONAL LOCAL 865 AND BELLMORE UNION FREE SCHOOL DISTRICT. The Board reversed the decision of the ALJ and dismissed CSEA's improper practice charge alleging that the District violated §209-a.1(d) of the Act when it hired a teaching assistant at a higher salary than that provided for on the first step of the parties' collective bargaining agreement. The collective bargaining agreement was silent as to the hiring rate for new employees. CSEA had argued that there was a past practice of hiring teaching assistants at the first step of the salary schedule, although it introduced evidence pertaining to the unit as a whole. Looking at the entire unit, the Board found that, while all but one teaching assistant had been hired at the first step, there had been a number of other unit employees hired at a step higher than the first step of the salary schedule. Finding that the practice in the District was, therefore, susceptible to two equally reasonable but diametrically opposed conclusions, the Board determined that CSEA had failed to meet its burden of proof to establish that there was an unequivocal practice that had continued for some time that the unit employees could reasonably have expected to continue of hiring employees at the first step of the salary schedule. (U-21384, 2/2/01)

POLICE BENEVOLENT ASSOCIATION OF SOUTHAMPTON TOWN INC. AND TOWN OF SOUTHAMPTON. The Board affirmed the decision of the ALJ and found that the Town violated §209-a.1(d) of the Act when it failed to continue the terms of an expired interest arbitration award. The parties had a two-year interest arbitration award which contained a term that, while stipulated to by the parties, was later disputed by the Town. The parties agreed that a grievance arbitrator would interpret the terms of the interest arbitration award. In the meantime, they entered into a collective bargaining agreement that was silent as to the disputed term from the interest arbitration award. The grievance arbitrator issued his award but limited it to the term of the award. The Town thereafter refused to continue the term of the interest arbitration award, as defined by the grievance arbitrator, arguing that an expired interest arbitration award could not define the status quo. The Board found that just as a legislative imposition could set the status quo, so, too, could an interest arbitration award and that the status quo must be maintained until a new agreement is negotiated. That the disputed term of the award had not been implemented while the parties were before the grievance arbitrator did not excuse the Town from its obligation to continue the term once the parties received the grievance arbitrator's decision. (U-21088, 2/2/01)

MARTIN FREEDMAN AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board denied Freedman's motion to reconsider a decision previously issued in January 2000 as there was neither newly discovered evidence nor overlooked propositions of law to justify reconsideration. (U-20764, 2/2/01)

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Strikes

YONKERS FEDERATION OF TEACHERS, LOCAL 860, AFT, AFL-CIO. The Board granted the application of the Federation for restoration of the dues and agency shop fee deduction privileges afforded under §208 of the Act. The deduction privileges had been suspended indefinitely, but for at least eighteen months, after the Board determined that the Federation had engaged in a strike for four work days in October 1999. The Federation affirmed that it does not have the right to strike, the District supported the application and the Board determined that, based upon the evidence submitted, the Federation had not engaged in, caused, instigated, encouraged, condoned or threatened a strike against the District since the above-stated violation. (D-0266, 8/16/01)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO AND BUFFALO FEDERATION OF TEACHERS. Pursuant to a stipulation entered into by the District and the Federation, the Board found that the Federation had engaged in a strike against the District on September 7 and 14, 2000. The Board ordered a suspension of the Federation's dues and agency shop fee deduction privileges for twelve months. However, given the facts and circumstances of the case, the Board immediately suspended implementation of the loss of dues and agency shop fee deduction privileges, unless the Federation causes, encourages, instigates, directs, condones or engages in a strike against the District prior to the successful negotiation of a successor to the parties' collective bargaining agreement which expires on June 30, 2004. The Board noted that the parties' had evidenced a desire to establish a stable labor-management relationship after ten years of labor strife by settling the current collective bargaining agreement and several improper practice charges and by agreeing to use a neutral facilitator to avoid or resolve future labor disputes. The Board cautioned the Federation against future strikes and the District from acts which might constitute an improper practice or extreme provocation of another strike. (D-0269, 3/5/01)

RHINEBECK CENTRAL SCHOOL DISTRICT AND RHINEBECK ASSOCIATION OF NON-INSTRUCTIONAL EMPLOYEES. The Board found that the Association had engaged in a strike for four workdays and suspended the Association's right to have agency fees and dues deducted for six months, restoration to be conditioned upon the Association's affirmation that it no longer asserts the right to strike. (D-0270, 2/2/01)

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Local Procedures

NO ARCHIVED LOCAL PROCEDURES Decision Summaries SINCE JANUARY 2001.

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Other Matters

PATROLMEN’S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. AND THE CITY OF NEW YORK. The Board affirmed the determination by the Director of Conciliation (Director) that an impasse occurred between the PBA and the City and thereby confirmed the Director’s appointment of a mediator. The Board found that the Director considered the history of negotiations between the parties and the pending litigation between them and PERB and found that the Director was correct in determining that there was no impediment to proceeding to mediation. (M-201-146, 10/11/01)

UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board confirmed the designation by the Director of Conciliation of a mediator and his determination that an impasse existed in negotiations between the Federation and the District. The District had excepted to the Director’s determination, arguing that the parties had not reached an impasse in negotiations and that the Federation’s declaration was, therefore, premature. After noting that such allegations usually took the form of an improper practice charge, the Board reviewed the Director’s determination and the facts and arguments submitted by the parties and confirmed the Director’s decision. (M201-003-M201-015, 5/1/01)

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Decision Summaries of the Office of Public Employment Practices and Representation


Representation

TONAWANDA SCHOOL STATIONARY ENGINEERS UNION AND TONAWANDA CITY SCHOOL DISTRICT AND LOCAL 2293/COUNCIL 66, AFSCME. The Union’s petition to decertify the Local and certify itself as the bargaining agent of the District’s sanitary engineers was dismissed as not having been timely filed within the period set forth in §201.3(d) of the Rules of Procedure. (Director Klein, C-5162, 12/14/01)

ROCKLAND COUNTY DISTRICT ATTORNEY’S CRIMINAL INVESTIGATOR’S ASSOCIATION AND COUNTY OF ROCKLAND. Eligibility for interest arbitration under §209.4 of the Public Employees’ Fair Employment Act was dispositive in the dismissal of a unit clarification/placement petition. As the sought-after title of undercover unit supervisor is not listed in §209.4, it is not eligible for interest arbitration. However, the unit titles of criminal investigator claimed to be similar to the at-issue title are eligible for interest arbitration. Finding that the difference in impasse procedures constitutes a “fundamental dissimilarity”, the unit clarification portion of the petition was dismissed. The unit placement aspect of the petition was dismissed as a unit containing titles with different impasse resolution procedures is not appropriate, as held in a previous case between these parties. (ALJ Comenzo, CP-720, 12/6/01)

CATTARAUGUS COUNTY DEPUTY SHERIFFS UNION AND COUNTY OF CATTARAUGUS AND CATTARAUGUS COUNTY SHERIFF AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. Petition seeking fragmentation of the deputy sheriff position from the Sheriff’s Department Unit was granted, due to the deputy sheriff’s criminal law enforcement duties. CSEA’s objection to the inclusion of those deputies assigned as school resource officers and court security deputies was dismissed, since the deputies are in a single job title, and have the training and qualifications to perform any departmental assignment given them by the Sheriff. (ALJ Fitzgerald, C-5094, 10/30/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC, LOCAL 1000, AFSCME, AFL-CIO AND AVON CENTRAL SCHOOL DISTRICT. The existing contract between the District and the non-instructional employees did not act as a bar to CSEA’s petition seeking to represent those employees, inasmuch as the incumbent employee organization had been dissolved. (ALJ Doerr, C-5090, 10/31/01)

SACHEM SCHOOL DISTRICT EMPLOYEES UNION AND SACHEM CENTRAL SCHOOL DISTRICT AND LOCAL 74, SEIU, AFL-CIO. The SSDEU filed a petition seeking to decertify Local 74 and certify itself as the bargaining agent of an existing non-instructional unit. In an interim decision, the ALJ denied a motion seeking to dismiss the petition on the ground that the SSDEU is not an employee organization within the meaning of §201.5 of the Act. Upon offers of proof, the ALJ held that sufficient organizational development to satisfy the requirements of the Act were shown by the undisputed facts that: a group of unit employees had formed an organization, adopted a name for it, chosen officers, hired an attorney to represent it, and conducted an organizing campaign by which it obtained sufficient signatures to satisfy PERB’s showing of interest requirement. Neither Local 74 nor the District were entitled to a hearing, since there were no material disputed issues of fact. Whether the minutes of the organizational meeting accurately reflected the attendance of two SSDEU officers was an internal union matter that did not affect organizational status. The Director ordered that an election by secret ballot be held. (ALJ Blassman, C-5079, 7/19/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND VILLAGE OF OWEGO. A petition seeking to place the title of auto mechanic into a bargaining unit that included, among others, mechanics in the Village’s Department of Public Works, was granted. The at-issue title shares a sufficient community of interest to warrant placement. (ALJ Quinn, CP-734, 7/27/01)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO AND STATE OF NEW YORK AND NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. An administrative law judge granted a petition to fragment certain “administrative” or “agency” police from the State’s Security Services Unit, finding that their law enforcement duties present an inherent conflict of bargaining interests with the non-law enforcement titles in the unit. An election will be conducted under the direction of the Director of Public Employment Practices and Representation. (ALJ Quinn, C-5045, 6/19/01)

WEST HEMPSTEAD EDUCATIONAL ASSOCIATION AND WEST HEMPSTEAD UNION FREE SCHOOL DISTRICT. The Association’s petition seeking to place the newly created position of “teaching assistant” in the unit of teachers and other professional employees was granted with the consent of the School District. (ALJ Blassman, CP-741, 5/17/01)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND WEST BABYLON PUBLIC LIBRARY. The Director dismissed election objections filed by the Library which sought to set aside an election because the voters were under eighteen years of age. (Director Klein, C-5047, 4/2/01)

COUNTY OF STEUBEN AND CIVIL SERVICE EMPLOYEES, ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, STEUBEN COUNTY UNIT OF STEUBEN COUNTY LOCAL 851. The County’s petition to fragment supervisors from a wall-to-wall County unit was dismissed upon a finding that those named in the petition performed only mid-level supervisory tasks. Also dismissed was the County’s allegation that CSEA had retaliated against Public Health Nurses. (ALJ Doerr, C-4994, 4/13/01)

CHRISTOPHER ANDERSON, ET AL. AND CITY OF GLENS FALLS AND PUBLIC EMPLOYEES FEDERATION. The bargaining agent was decertified following its disclaimer of interest in further representing the unit. (Director Klein, C-5075, 4/17/01)

CHEEKTOWAGA CENTRAL SCHOOL DISTRICT. A unit placement petition which sought the inclusion of the title of teaching assistant in the Association’s bargaining unit was granted on a finding that the title sought shares a community of interest with the teachers. (ALJ Fitzgerald, CP-706, 3/29/01)

BYRON-BERGEN FACULTY ASSOCIATION AND BYRON-BERGEN CENTRAL SCHOOL DISTRICT. The Association sought the inclusion of the titles of school psychologist, student assistance counselor, occupational therapist and school nurse in its bargaining unit. The petition was granted on a finding that the titles sought share a community of interest with and have historically been placed in teacher units. (ALJ Doerr, CP-707, 2/6/01)

LYME CENTRAL SCHOOL TEACHERS ASSOCIATION AND LYME CENTRAL SCHOOL DISTRICT. Petitions seeking to add school nurses and teaching assistants to existing bargaining unit of "all professional, certified personnel, except administrators," were granted on the District's consent and factual stipulations establishing the appropriateness of the placements. (ALJ Quinn, CP-722 & CP-723, 2/6/01)

CONNETQUOT TEACHERS ASSOCIATION AND CONNETQUOT CENTRAL SCHOOL DISTRICT. The Association filed a unit clarification and unit placement petition seeking a determination that "permanent substitute teachers" (substitutes hired for extended periods to replace regular teachers absent a few days or less) are encompassed within or should be placed within the existing unit of teachers and other professionals. The clarification portion of the petition was dismissed, but unit placement was granted. The ALJ rejected the District's argument that the permanent substitutes were more appropriately placed in a unit that included currently unrepresented per diem substitutes. Although both titles similarly substitute for teachers on short term absences, the regularity of employment of the permanent substitutes, their guaranteed daily employment during an extended period and reporting to the same school building daily create a stronger community of interest with the regular teachers and warrant their inclusion in the pedagogical unit. (ALJ Blassman, CP-650, 1/3/01).

WESTCHESTER JOINT WATER WORKS AND LOCAL 476, UTILITY WORKERS UNION OF AMERICA, AFL-CIO. The employer's petition seeking, as amended, a determination whether the position of part-time intermediate account clerk/typist should be placed in a bargaining unit of employees represented by the union was granted over opposition. The stipulated record establishes that the only significant difference between the unrepresented part-time intermediate account clerk/typist and the full-time intermediate account clerk/typist represented by the union is that the former works fewer hours. That sole distinction does not affect the community of interest otherwise established between the represented and unrepresented positions. (ALJ Quinn, CP-721, 1/26/01).

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Management / Confidential

VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT NUMBER 1. The Secretary to the Assistant Superintendent for Finance and the Secretary to the Assistant Superintendent for Administration were designated confidential. (Director Klein, E-2254, 11/01/01)

WESTCHESTER COUNTY HEALTH CARE CORPORATION. Certain high-ranking administrators of a recently established public benefit authority were designated managerial based on their significant role in policy formulation and labor relations. Others were designated confidential because they act and assist managerial employees in their role in contract negotiations and personnel administration. Certain high level supervisors were not designated managerial or confidential because their input into collective negotiations, while consistent with that of supervisory personnel, did not warrant their designation. (ALJ Quinn, E-2191, 11/30/01)

BRENTWOOD UNION FREE SCHOOL DISTRICT. The District filed a petition seeking to designate Thomas Melo, Coordinator of Human Resources, as a managerial employee and to designate Gladys P. Moore, Human Resources Officer, and Cynthia Fleming, Principal Clerk Typist, as confidential employees pursuant to §201.7 of the Act. The petition was granted upon the pleadings and the consent of Melo and Moore, whose positions were unrepresented, and upon the consent of the Brentwood Clerical Association which represented Fleming’s position. (ALJ Blassman, E-2248, 10/15/01)

NIAGARA-WHEATFIELD CENTRAL SCHOOL DISTRICT. Carol Guariglia, Payroll Clerk, and Susan Tower, Account Clerk, were designated confidential on a finding that their duties and responsibilities satisfied the criteria set forth in §201.7(a) of the Act. (ALJ Doerr, E-2232, 8/8/01)

CHURCHVILLE-CHILI CENTRAL SCHOOL DISTRICT. Judy Freeman, Payroll Supervisor, was designated confidential when her duties and responsibilities satisfied the criteria set forth in §201.7(a) of the Act. (ALJ Doerr, E-2229, 8/8/01)

MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT. Pursuant to parties’ stipulation, Elizabeth Jeffrey, Employee Benefits Supervisor, whose duties and responsibilities satisfied criteria set forth in §201.7(a) of Act, was designated confidential. (ALJ Cacavas, E-2241, 7/10/01)

GUERNSEY MEMORIAL LIBRARY. With the consent of the bargaining agent, Walter S. Goodman, Account Clerk, was designated confidential upon the Library’s application. (ALJ Comenzo, E-2236, 7/11/01)

EVANS-BRANT CENTRAL SCHOOL DISTRICT. Michelle Hy, Senior Clerk Typist, was designated confidential, based on her access to labor relations information in her role as secretary to the District’s Assistant Superintendent. (ALJ Fitzgerald, E-2237, 7/20/01)

HAVERSTRAW-STONY POINT CENTRAL SCHOOL DISTRICT. With the consent of the bargaining agent, Joanne Cronin, Secretary I, was designated confidential pursuant to the District’s application. (Director Klein, E-2246, 7/27/01)

ROCKLAND COUNTY BOARD OF COOPERATIVE EDUCATIONAL SERVICES. Following a hearing, the ALJ granted BOCES’ application to designate the titles of Secretarial Typist (personal secretary to Assistant to the Superintendent for Human Resources), Secretarial Assistant (personal secretary to Assistant Superintendent for Educational Services), Secretarial Assistant (personal secretary to Assistant Superintendent for Business) and Accountant as confidential in accordance with the criteria set forth in §201.7(a) of the Act. The application was dismissed as to three additional titles (Senior Clerk Typist, Principal Clerk and Clerk Typist), whose duties were not found to have met the statutory criteria. (ALJ Mayo, E-2220, 6/11/01)

HAVERSTRAW-STONY POINT CENTRAL SCHOOL DISTRICT. Upon consent, the secretary to the superintendent of schools, in the title of secretary I, and the secretarial typist and public information assistant were designated confidential. (ALJ Comenzo, E-2240, 5/2/01)

NORTH COLONIE CENTRAL SCHOOL DISTRICT. The secretary to the assistant superintendent was designated confidential upon consent, because the factual averments of the duties and responsibilities of the position, as set forth in the application and supporting documents supported such a conclusion. (ALJ Quinn, E-2239, 5/17/01)

HEMPSTEAD UNION FREE SCHOOL DISTRICT. The District’s petition seeking to designate as confidential, pursuant to §201.7 of the Act, three employees employed in the title of Typist-Clerk was granted upon the pleadings and the consent of the Hempstead Schools Civil Service Association, NEA/NY. (ALJ Blassman, E-2238, 5/25/01)

COUNTY OF OTSEGO. The County sought to have Catherine Crist, the Assistant Director of Nursing Services at the County’s nursing home, designated as confidential. Following a hearing, the ALJ found that Crist’s immediate supervisor, Director of Nursing Pierce, was not a managerial employee pursuant to provisions of §201.7(a)(ii) of the Act. Therefore, Crist could not be designated confidential, and the application was dismissed. (ALJ Mayo, E-2221, 4/20/01)

IRVINGTON UNION FREE SCHOOL DISTRICT. On a stipulated record, Elaine Torrente, Senior Account Clerk Typist and Secretary to the District’s Assistant Superintendent for Business, was designated as confidential. However, because the parties stipulated that the Junior Accountant and Secretary to the District’s Assistant Superintendent for Instruction and Personnel do not perform duties warranting their designations as confidential, the application was, to that extent, dismissed. (ALJ Quinn, E-2226, 4/23/01)

GATES-CHILI CENTRAL SCHOOL DISTRICT. Linda Shane, Clerk Typist, was designated confidential where her duties and responsibilities satisfied criteria set forth in §201.7(a) of the Act. (ALJ Fitzgerald, E-2225, 3/1/01)

CHURCHVILLE-CHILI CENTRAL SCHOOL DISTRICT. Scott Massie, Director of Human and Community Relations, was designated managerial upon consent of his bargaining agent. (ALJ Doerr, E-2227, 3/7/01)

COUNTY OF MONTGOMERY. On a stipulated record, the County’s account clerk typist, personnel associate, and personnel assistant were designated confidential by virtue of their confidential assistance to the County’s personnel officer regarding the personnel officer’s labor relations duties. However, County’s senior account clerk typists were not designated confidential. While the information to which they are exposed is sensitive and private, it is not the sort of information warranting the designation. (ALJ Quinn, E-2196, 3/7/01)

ARLINGTON FIRE DISTRICT. The Director and Assistant Director of Emergency Medical Services were designated managerial on consent. (ALJ Comenzo, E-2198, 2/15/01)

CITY OF NEWBURGH. The application to designate Diane McGraw, Senior Typist, Water Department, as confidential, was granted on the union's consent inasmuch as the factual averments of the duties and responsibilities of the position as set forth in the application and supporting documents may support such a conclusion. (ALJ Quinn, E-2219, 2/26/01)

CROTON-HARMON UNION FREE SCHOOL DISTRICT. The District's Business Manager, Ryan, and Director of Staff and Pupil Personnel Services, Hanly, were designated managerial, and its Secretary to the Superintendent of Schools, Ulacco, was designated confidential pursuant to the agreement of the two bargaining agents representing the units which included the titles of Secretary to the Superintendent and Director of Staff and Pupil Personnel Services and with the consent of Ryan, who was unrepresented. (ALJ Comenzo, E-2228, 2/28/01)

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Improper Practices

AUGUSTA H. POULARD AND A. HOLLY PATTERSON GERIATRIC HOME. The Director dismissed a charge, as amended, for failure to plead any conduct which would arguably and timely establish a violation of the Act, failure to comply with the Rules requirements relating to the number of copies of all attachments and failure to swear to the amendments. (Director Klein, U-22906, 12/5/01)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC., AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). An improper practice charge was deferred for a jurisdictional determination under the parties’ collective bargaining agreement where, in a separate Article 78 proceeding, Supreme Court granted the charging party 30 days to file a grievance regarding the conduct at issue in the improper practice charge. (ALJ Quinn, U-22482, 12/6/01)

ROBERT J. NEUN AND TOWN OF BABYLON. Neun filed an improper practice charge alleging that the Town violated §209-a.1(a) of the Act when it initiated a disciplinary proceeding against him in retaliation for his filing a grievance. The charge was dismissed based upon Neun’s failure to appear at the scheduled conference and his failure to file a sworn statement setting forth good and sufficient reason for the failure to appear. (ALJ Blassman, U-22738, 12/14/01)

AUDREY GORE AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND HEALTH RESEARCH, INC. The Administrative Law Judge dismissed a charge alleging a violation of §209-a.2(c) of the Act for lack of jurisdiction. The decision, based upon an offer of proof submitted by Gore at the direction of the Administrative Law Judge who conferenced the case, held that the Gore did not establish that PERB has jurisdiction over the employer, Health Research Inc. (HRI). The facts contained in Gore’s proof did not provide facts sufficient to establish the entity which controlled the labor relations at HRI, the civil service status of the employees, or the identity or selection process of the governing body of the employer. Since it is a charging party’s burden to establish that the employer is subject to PERB’s jurisdiction, and insufficient evidence was submitted to conclude that HRI was a public employer within the meaning of §201.6(a) of the Act, the charge was dismissed. (ALJ Maier, U-22678, 12/18/01)

TOWN OF YORKTOWN POLICE BENEVOLENT ASSOCIATION, INC. AND TOWN OF YORKTOWN. 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-22860, 12/21/01)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). An improper practice charge which alleged that the State violated the Act by unilaterally discontinuing a longstanding policy permitting unit employees to take annual leave in one day increments was conditionally dismissed pending the outcome of a grievance on the same matter. (ALJ Mayo, U-22896, 12/26/01)

DORIS TOSHUNBE, PROFESSIONAL, CLERICAL AND TECHNICAL EMPLOYEES ASSOCIATION AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO. An improper practice charge, alleging that the Professional, Clerical and Technical Employees Association (PCTEA) violated the Act by refusing to file grievances at Toshunbe's request, was dismissed where the union believed the grievances were without merit, and so advised her, and there was no evidence of discrimination or bad faith. The allegation that the Board of Education violated the Act was also dismissed as there were no facts alleged to show interference with the formulation or administration of a union, or discrimination, on its part. (ALJ Fitzgerald, U-22818, 11/1/01)

JAMESTOWN PROFESSIONAL FIREFIGHTERS LOCAL 1772 AND THE CITY OF JAMESTOWN. An improper practice charge, alleging that the City violated the Act when it unilaterally implemented the use of pagers for emergency call-ins, was deferred to a pending grievance proceeding. (ALJ Fitzgerald, U-22764, 11/2/01)

ADMINISTRATORS’ ASSOCIATION OF ERIE COMMUNITY COLLEGE, LOCAL 3300, UAW AND COUNTY OF ERIE AND ERIE COMMUNITY COLLEGE. An improper practice charge alleging that the County and College violated the Act by unilaterally extending the work year of College Department heads was conditionally dismissed and deferred to the grievance procedure of the parties’ collective bargaining agreement. (ALJ Doerr, U-22775, 11/5/01)

ADMINISTRATORS’ ASSOCIATION OF ERIE COMMUNITY COLLEGE, LOCAL 3300, UAW AND COUNTY OF ERIE AND ERIE COMMUNITY COLLEGE. An improper practice charge alleging that the County and College violated the Act when it hired employees under the terms of a grant, assigned them unit titles, but failed to credit them with rights under the collective bargaining agreement or otherwise treat them as unit employees, was conditionally dismissed and deferred to the grievance procedure of the parties’ collective bargaining agreement. (ALJ Doerr, U-22869, 11/13/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO, LOCAL 815 AND COUNTY OF ERIE. CSEA’s improper practice charge alleging that the County unilaterally designated specific employees as “essential” was deferred to the parties’ dispute resolution procedure. (ALJ Doerr, U-22441, 11/15/01)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (SUNY HEALTH SCIENCE CENTER AT BROOKLYN). The union’s charge that the State had violated the Act by unilaterally instituting a policy which prohibited unit members from possessing off-duty firearms was conditionally dismissed pending the outcome of a grievance arbitration. (ALJ Mayo, U-22924, 11/15/01)

WINDSOR FLEURY AND NEW YORK CITY TRANSIT AUTHORITY. Fleury filed an improper practice charge alleging that the Authority violated §§209-a.1(a),(c), and (d) of the Act when it refused to issue a decision on his sick leave grievance in retaliation for his acting as a shop steward of the Transport Workers Union, Local 100. The charge was dismissed based upon Fleury’s failure to appear at the scheduled conference and his failure to respond to a subsequent notice requesting the reason for his failure to appear. (ALJ Blassman, U-22812, 11/20/01)

POTSDAM TEACHERS’ ASSOCIATION, NYSUT, AFT, AFL-CIO, LOCAL #2940 AND POTSDAM CENTRAL SCHOOL DISTRICT. The Association’s charge which alleged that the District had violated the Act by unilaterally discontinuing a longstanding past practice of allowing Association members to watch their elementary age school children during the first period of the school day was dismissed as being untimely filed. (ALJ Mayo, U-22297, 11/23/01)

SOUTHTOWN POLICE CLUB, INC. AND TOWN OF HAMBURG. An improper practice charge, alleging that the City violated the Act when it unilaterally instituted a relief shift was conditionally dismissed pending the outcome of a grievance on the same matter. (ALJ Doerr, U-22807, 10/4/01).

ERIE COUNTY SHERIFF’S POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF ERIE AND ERIE COUNTY SHERIFF AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 264. Two consolidated improper practice charges, alleging that the County of Erie violated the Act when it subcontracted the work of traffic control and police services at Ralph Wilson Stadium, were dismissed on the County’s motion. The charges were found to be untimely as more than four months had elapsed from both the date on which the PBA had actual knowledge of the County’s decision to subcontract the work and the date on which nonunit personnel began performing the work. Even were the charges found to be timely, the PBA failed to show that it had exclusive right to the work at issue. (ALJ Fitzgerald, U-21495 and U-22684, 10/9/01)

LINDA AMNAWAH AND UNITED FEDERATION OF TEACHERS. The Director dismissed as deficient Amnawah’s charge that the UFT violated the Act when it failed to respond to her request to clarify its prior communication to her. The Director held that a union has no obligation to repeat the explanations for its decisions so long as the explanation is communicated in a reasonably understandable fashion. (Director Klein, U-22849, 10/11/01)

MARK CLARK AND INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 2028 AND NIAGARA FRONTIER TRANSPORTATION AUTHORITY. A charge alleging that Local 2028 violated its duty of fair representation under the Act by the manner in which it processed a member’s grievance was dismissed, where the union’s executive board had cancelled an arbitration hearing based on the recommendation of its counsel that it would not prevail on the grievance and the union vice president promptly notified the grievant of such decision. (ALJ Fitzgerald, U-22352, 10/17/01)

HUDSON VALLEY COMMUNITY COLLEGE FACULTY ASSOCIATION AND HUDSON VALLEY COMMUNITY COLLEGE AND COUNTY OF RENSSELAER. The union’s charge alleging that the employer violated §209-a.1(d) of the Act was deferred upon a showing that the union had filed a grievance concerning the dispute. (ALJ Quinn, U-22737, 10/18/01)

MICHAEL H. A. SPARMAN AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed the charge, as amended, as being untimely because the District took no action against Sparman within four months prior to his filing of the charge and because of insufficient facts to establish an intention by the District to interfere with any rights protected by the Act. (Director Klein, U-22733, 10/19/01)

MICHAEL H. A. SPARMAN AND UNITED FEDERATION OF TEACHERS. The Director dismissed that part of Sparman’s charge with respect to UFT action or inaction that occurred more than four months prior to the filing of his charge as being untimely. The Director also dismissed that part of the charge relating to the UFT’s failure to respond to Sparman’s February 13, 2001 plea for continued representation, finding that the UFT owed no duty to Sparman to repeat its position and reasons previously given to him for declining to take the action he sought. (Director Klein, U-22734, 10/19/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF ULSTER. CSEA's charge alleging that the County had violated the Act by dealing with its unit members and interfering with their right to attend a public meeting was dismissed upon findings that the County’s actions were substantiated by legitimate business reasons, and not driven by anti-union animus. (ALJ Mayo, U-21867, 10/26/01)

MARTIN FREEDMAN AND THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Freedman alleged that the District violated §209-a.1(a) of the Act when it retaliated against him for filing a prior improper practice charge which had been settled by agreement. The ALJ denied the District’s preliminary motion to dismiss the charge based upon collateral estoppel, holding that the Board’s decision in the prior, settled case, which dismissed Freedman’s motion to reopen that matter, did not present the same issue and did not resolve the disputed facts, but merely determined that the arguments presented did not constitute, as a matter of law, a sufficient basis to reopen a settled charge. On the merits, the ALJ dismissed the charge in its entirety for failure to prove that the District was improperly motivated. Contrary to Freedman’s allegation, the District’s insistence that he submit to a medical examination before his assignment to a school was a reasonable interpretation of the agreement and did not constitute evidence of retaliation. Nor did Freedman demonstrate that the failure to assign him to the school districts he preferred was improperly motivated. To the extent that Freedman argued that the District’s interpretation of the settlement agreement was incorrect, a mere dispute regarding the terms of an agreement does not constitute a violation of the Act. Nor did Freedman demonstrate that the school principal retaliated against him when he told him to dress professionally or gave him his teaching assignment. (ALJ Blassman, U-21761, 9/06/01)

TOMPKINS COUNTY LIBRARY PROFESSIONAL STAFF ASSOCIATION, UAW LOCAL 2300 AND TOMPKINS COUNTY PUBLIC LIBRARY. An improper practice charge which alleged that the Library had violated the Act when it unilaterally implemented a new summer work schedule and then failed to process grievances regarding said action was conditionally dismissed and deferred to the parties’ contractual grievance procedure. (ALJ Mayo, U-22729, 9/13/01)

TOMPKINS COUNTY LIBRARY SUPPORT STAFF ASSOCIATION, UAW LOCAL 2300 AND TOMPKINS COUNTY PUBLIC LIBRARY. An improper practice charge which alleged that the Library had violated the Act when it unilaterally implemented a new summer work schedule and then failed to process grievances regarding said action was conditionally dismissed and deferred to the parties’ contractual grievance procedure. (ALJ Mayo, U-22730, 9/13/01)

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. Local 100 filed an improper practice charge alleging that the New York City Transit Authority violated §§209-a.1(a) and (d) of the Act when it unilaterally transferred unit work, refused a demand to bargain, and refused to provide information regarding the transfer. Upon the Authority’s motion, the charge was conditionally dismissed pursuant to PERB’s merits deferral policy, thereby deferring the matter to a pending contractual grievance that raised the same issues as the charge. (ALJ Blassman, U-22549, 9/21/01)

BUFFALO TEACHERS FEDERATION, INC. AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO. BTF’s charge alleging that the District subcontracted the work of bargaining unit members was deferred to the parties’ contractual grievance arbitration mechanism, as the BTF had filed a grievance complaining that the identical issue violated the subcontracting provision of the parties’ collective bargaining agreement. (ALJ Doerr, U-20877 9/24/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, NASSAU COUNTY MUNICIPAL EMPLOYEES LOCAL 882 AND TOWN OF NORTH HEMPSTEAD. A motion to amend the charge was granted where the facts upon which the amendment is based were unknown prior to the hearing and where granting the motion neither prejudiced the respondent nor burdened the hearing process. Retaliation claims fall squarely within PERB’s jurisdiction since PERB is not asked to determine whether or to what extent a contract violation occurred, but rather whether invocation of the grievance machinery prompted retaliatory acts. Grievance activity and the filing of improper practice charges before PERB are protected under the Act and thereby satisfy the first element of the burden of proof in retaliation cases. Evidence in a retaliation case must establish that those persons who were responsible for the adverse action knew of the alleged victim’s involvement in protected activity. The “small plant doctrine”, however, provides that, in a small setting, knowledge of involvement may be imputed to those within the setting, even if not specifically proved. To establish retaliation, a charging party must prove that “but for” the protected activity, the adverse action would not have occurred. The circumstance of timing alone is insufficient to establish that connection. Once a prima facie case of retaliation is established, the burden shifts to the employer to show that it was motivated by legitimate business concerns. (ALJ Cacavas, U-22429, 9/26/01)

WILLIAM BLASI AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Pursuant to the Act, an employer is a party to any charge which alleges that the bargaining agent’s breach of the duty of fair representation related to its failure to process, or the manner of processing, a grievance brought under the collective bargaining agreement. Absent evidence of action that is arbitrary, discriminatory or in bad faith, a violation of the duty of fair representation will not be found. Mere disagreement with the tactics utilized or dissatisfaction with the quality or extent of representation does not constitute a breach of the representation duty. Even negligence or an error in judgment does not establish a violation. Based on controlling legal standards, the question in a duty of fair representation case is not whether the grievant’s defense should have been presented as he suggests, but whether the union’s decision-making was arbitrary, discriminatory or in bad faith. PERB is loathe to substitute its judgment for that of the union. Even if the union’s analysis of a case is incorrect, it is not illegal unless shown to be arbitrary, discriminatory or made in bad faith. (ALJ Cacavas, U-22351, 9/26/01)

HELEN KRESZ AND UNITED FEDERATION OF TEACHERS. The Director dismissed as deficient a charge that UFT violated §209-a.2(b) of the Act when it failed to represent Kresz in connection with a June, 2000 arbitration hearing. When Kresz was notified that an individual lacks standing to file a §209-a.2(b) charge; that her charge is untimely; and that it lacks facts to establish arbitrary, discriminatory or bad faith conduct by the Union, Kresz responded with an unsworn original without copies, in which she found PERB’s notice to be “unacceptable.” To it, she attached an article on Taylor Law reform together with a copy of the Board’s decision in an earlier related case of hers, in the margins of which she characterized a Board statement as “baloney.” (Director Klein, U-22703, 8/7/01)

MARTIN FREEDMAN AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ granted the employer’s motion at the close of the charging party’s case and dismissed the charge for failure to state a prima facie case. Freedman had alleged that the District retaliated against him due to having previously filed an improper practice charge against his union, a case in which the District was made a statutory party. The ALJ concluded that while Freedman had engaged in protected activity by the filing of the previous charge, even granting Freedman’s case all reasonable inferences, there was no basis to conclude that the District representatives who allegedly retaliated against him knew of this activity or acted because of it. The charge was therefore dismissed. (ALJ Maier, U-22063, 8/7/01)

MOUNT PLEASANT CENTRAL SCHOOL DISTRICT AND MOUNT PLEASANT TEACHERS ASSOCIATION. The District’s charge that the Association violated the Act by refusing to execute a formal collective bargaining agreement upon request was dismissed as the document offered for signature did not conform to the agreement alleged. If not dismissed on this basis, the charge would be dismissed, the decision noted, because the record also failed to prove the existence of an agreement. (ALJ Comenzo, U-22219, 8/10/01)

SUFFOLK COUNTY ASSOCIATION OF MUNICIPAL EMPLOYEES, INC. AND THE SUFFOLK COUNTY LEGISLATURE AND THE COUNTY OF SUFFOLK. The Association alleged that the County violated §209-a.1(a) of the Act when the Legislature adopted a resolution waiving a contractual, one-year employment requirement for participation in the County’s tuition reimbursement program. The ALJ sustained the charge, finding that the Legislature’s enactment of a resolution providing benefits greater than those contractually provided-for to a unit employee, even absent evidence that the resolution had been implemented, violated the Act. The ALJ rejected the County’s contractual defenses, finding that, although the County had retained the contractual right to set and, therefore, modify the program’s participation requirements, the legislative resolution had not modified those requirements, but had only made an exception to them that was applicable to one specific employee. (ALJ Blassman, U-21051, 8/10/01).

PATRICK HAUGHEY AND NEW YORK STATE COURT CLERKS ASSOCIATION AND NEW YORK STATE UNIFIED COURT SYSTEM. Haughey alleged that the Association violated §209-a.2(c) of the Act when it to failed to respond to his request for representation in a grievance alleging that his supervisor was unfairly requiring him to submit proof of illness when using sick leave. The charge was dismissed as moot when, pending continuation of the hearing, Haughey resigned from the Court System’s employment. The ALJ held that Haughey no longer maintained a sufficient interest in the proceeding, since he would no longer be required to submit proof of illness. The charge was dismissed, in the alternative, as untimely, since the record showed that Haughey had received a response from the Association almost a year earlier which denied his request for representation on the same issue. (ALJ Blassman, U-22096, 8/22/01).

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND ROSWELL PARK CANCER INSTITUTE. An improper practice charge, which alleged that RPCI violated §§209-a.1(a), (c) and (d) of the Act when it instituted new policies regarding performance evaluations and security surveillance, was dismissed on the employer’s motion to dismiss following an offer of proof. Even accepting as true the facts alleged by PEF, no reasonable inference could be drawn to suggest that any change in the evaluation process had occurred. Further, there was no evidence that the security surveillance policy at issue is a mandatory subject of bargaining. (ALJ Fitzgerald, U-21827 8/24/01)

JOHN ZITO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed as deficient Zito’s charge that his employer violated the Act when it did not pay him, as required by a collective bargaining agreement, while he was on suspension for disciplinary charges that resulted in an arbitrator’s award favorable to him. Advised that his charge was untimely, that PERB has no authority to enforce the agreement and that the facts pleaded did not establish a violation of §209-a.1(a) of the Act as alleged, Zito amended his charge to allege the employer breached State Education Law by not paying him within a proscribed time of the arbitrator’s decision. Upon rejection of that amendment, Zito filed a second amendment charging that the employer’s decision to appeal the arbitrator’s award was “discrimination” and a “bad faith” dealing. The Director ruled that commencement of a lawsuit cannot constitute an improper practice. (Director Klein, U-22713, 8/28/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK AT OSWEGO). The inclusion in notices of discipline of specifications regarding a unit employee’s statement of intent to contact his bargaining agent about an employee break room violated §209-a.1(a) and (c) of the Act. Notification of one’s intention to seek the assistance of one’s bargaining agent is a protected activity and the record lacked evidence that the employee, in making the at-issue statement, behaved in such a way as to lose the Act’s protection. (ALJ Comenzo, U-21987, 7/6/01)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - GREAT MEADOW CORRECTIONAL FACILITY). A charge alleging that the State retaliated against the PEF unit officials two weeks after their participation in a “heated discussion” at a labor/management meeting by requiring one official to sign a prior existing dress code directive and transferring her office space, and re-locating the other official without right of re-entry to a different correctional facility across the road was dismissed on findings that the State’s actions with respect to those parts of the charge that were factually supported were driven by legitimate business reasons. (Asst. Director Barsamian, U-22057, 7/18/01)

EMMA KNIGHT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., AND STATE OF NEW YORK (OFFICE OF MENTAL HEALTH - QUEENS CHILDREN’S PSYCHIATRIC CENTER). An improper practice charge was dismissed for charging party’s failure to appear at the hearing. (ALJ Blassman, U-21864, 7/23/01)

NIAGARA FRONTIER TRANSIT AUTHORITY POLICE BENEVOLENT ASSOCIATION, INC. AND NIAGARA FRONTIER TRANSIT AUTHORITY. PBA alleged that the NFTA violated the Act when it unilaterally videotaped the interrogation of an officer accused of departmental violation. The charge was deferred to the parties’ contractual grievance arbitration procedure. (ALJ Doerr, U-22611, 7/24/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000 AFSCME, AFL-CIO, LOCAL 861, UNIT 9250, WYOMING COUNTY EMPLOYEES AND COUNTY OF WYOMING. An improper practice charge, alleging that the County terminated the employment of a probationary unit employee due to her filing of a grievance on an overtime issue, was dismissed. While evidence showed that the employee was terminated immediately after the County Administrator returned the grievance to the Department for a second step grievance meeting, an investigation into the employee’s reporting of overtime and usage of the County vehicle revealed issues of concern to the County which it asserted was the reason for her termination. ALJ found that CSEA failed to sustain its burden of proof as to motivation. (ALJ Fitzgerald, U-22099, 7/27/01)

OLEAN TEACHERS’ ASSOCIATION, NEA/NY AND OLEAN CITY SCHOOL DISTRICT. An improper practice charge, alleging that the District violated the Act when it entered into an agreement with Jamestown Community College to teach high school business classes, was conditionally dismissed pending the outcome of a grievance on the same matter. (ALJ Fitzgerald, U-22459, 7/31/01)

BUFFALO POLICE BENEVOLENT ASSOCIATION, INC. AND CITY OF BUFFALO. An improper practice charge, alleging that the City violated the Act when it changed certain practices in regard to the appointment of officers to the narcotics/vice unit and announced the implementation of drug testing and performance evaluations, was conditionally dismissed subject to the outcome of a grievance on the same matter. (ALJ Fitzgerald, U-22530, 7/31/01)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 264, AFL-CIO AND CITY OF BUFFALO. An improper practice charge, alleging that the City violated the Act when it unilaterally subcontracted exclusive bargaining unit work to nonunit personnel, was conditionally dismissed pending the outcome of a grievance on the same matter. (ALJ Fitzgerald, U-22556, 7/31/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC. LOCAL 1000, AFSCME, AFL-CIO, DUTCHESS COUNTY LOCAL 814, TOWN OF POUGHKEEPSIE UNIT AND TOWN OF POUGHKEEPSIE. Concluding that the Town violated §§209-a.1(a) and (c) of the Act when it terminated the employment of a highway department laborer for organizational activity in the distribution of a union designation card, the Assistant Director found the Town's stated reason for dismissal as being based on prior condoned events and pretextual. (Asst. Director Barsamian, U-22231, 7/31/01)

CITY OF BUFFALO AND AFSCME LOCAL 650, AFL-CIO. The City was found to have violated §209-a.1(d) of the Act when it transferred the duties of a title within the unit to a newly created title outside the unit. The City did not argue, nor was it otherwise apparent, that the City’s actions constituted a privileged reclassification of the position. (ALJ Doerr, U-21955, 6/1/01)

TOWN OF YORKTOWN POLICE BENEVOLENT ASSOCIATION, INC. AND TOWN OF YORKTOWN. 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-22524, 6/1/01)

MCGRAW CENTRAL SCHOOL DISTRICT AND MCGRAW FACULTY ASSOCIATION. The McGraw Faculty Association was found to have violated §209-a.2(b) of the Act when, in violation of its duty to bargain in good faith, it raised new proposals at fact finding. (ALJ Doerr U-22266, 6/1/01)

TROY POLICE BENEVOLENT AND PROTECTIVE ASSOCIATION, INC. AND CITY OF TROY. In an interim decision, on a charge alleging a refusal to execute the proffered formal collective bargaining agreement, the City’s defense that one article therein violated the policies of the Act was rejected. (ALJ Comenzo, U-22083, 6/6/01)

MARATHON TEACHERS ’ ASSOCIATION, NEA/NY AND MARATHON CENTRAL SCHOOL DISTRICT. An improper practice charge alleging that the District violated the Act when it unilaterally implemented a new performance review plan for unit members 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-22454, 6/7/01)

SOUTHOLD ADMINISTRATORS ASSOCIATION AND SOUTHOLD UNION FREE SCHOOL DISTRICT. An action must be commenced within four months of the acts upon which it based, calculated from the later of notice or implementation of said acts. Hence, where a Board of Education in March or April announced that a position would be eliminated and the duties transferred to the school principal, the statute of limitations could be calculated to have commenced in September when the duties were actually assumed. The assignment of duties which are within the inherent nature of a position is a nonmandatory subject of negotiations. As such, a District could unilaterally assign to a high school principal the task of student discipline. While an employer has a duty to bargain with a union over the impact of even those actions which are not mandatorily negotiable, the duty does not arise unless the union demands the negotiation. Where the assignment of new or additional duties lengthens the workday or increases the hours of work, the decision is mandatorily negotiable. Where an employee has to perform more work in the course of a workday because of the assignment of additional duties, it may be inferred that his or her workload has increased even if there is no testimony as to a lengthened workday. Where, however, an employee has the freedom to adjust the “mix” of duties in each workday and the additional duties may be distributed over a longer time frame, such an inference cannot be made. In order to show that an employer discriminated or retaliated against an employee for involvement in protected activity, a charging party must establish his or her involvement, the employer’s knowledge of it and that it acted because of that. The mere circumstance of timing alone does not satisfy the burden of proof. (ALJ Cacavas, U-21234, 6/15/01)

DEPUTY SHERIFFS BENEVOLENT ASSOCIATION OF ONONDAGA COUNTY, INC. AND COUNTY OF ONONDAGA AND ONONDAGA COUNTY SHERIFF. The Association’s charge that the employer unilaterally provided vehicles to two unit titles was dismissed based on a finding that the provision fell within the parties’ past practice. (ALJ Comenzo, U-21651, 6/21/01)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK - DOWNSTATE MEDICAL CENTER). A charge which alleged that SUNY had violated the Act by unilaterally ceasing to process firearms purchase authorizations for unit members was conditionally dismissed and deferred to the parties’ contractual grievance procedure. (ALJ Mayo, U-22560, 6/21/01)

WILLIAMSVILLE CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND WILLIAMSVILLE CENTRAL SCHOOL DISTRICT TRANSPORTATION An improper practice charge, alleging that the District violated the Act by unilaterally altering the manner in which bus runs are bid and assigned, was conditionally dismissed pending the outcome of a grievance of the same matter. (ALJ Fitzgerald, U-22159, 6/25/01).

WHITESTOWN POLICE BENEVOLENT ASSOCIATION AND TOWN OF WHITESTOWN. The material facts in a charge alleging that the Town violated §209-a.1(d) of the Act when it unilaterally changed the unit employees’ health insurance plan to another carrier offering different and lesser services and benefits at higher co-pays than previously provided were deemed admitted and the answer dismissed by the Assistant Director pursuant to §212.2 of the Rules when the Town failed to appear at a scheduled pre-hearing conference and failed to respond to the Assistant Director’s demands to show good cause for its absence. (Asst. Dir. Barsamian, U-22467, 6/25/01)

ALFRED P. BARTO AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND NEW YORK STATE BRIDGE AUTHORITY. A claim that the bargaining agent had improperly failed to file a grievance on behalf of the charging party was dismissed upon a finding that the charging party had failed to contact the bargaining agent on the matter as the parties had arranged. (ALJ Comenzo, U-21856, 6/28/01)

MARTIN FREEDMAN AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Freedman alleged that the UFT breached its duty of fair representation, in violation of §209-a.2(c) of the Act, when it failed to schedule his grievance for the arbitration-hearing calendar for more than three years. The charge was dismissed for failure to prove that the UFT’s actions were arbitrary, discriminatory, or taken in bad faith. The ALJ found that the UFT had not acted arbitrarily, since it had followed a system of prioritization that gave priority to grievances that impacted most seriously upon individual unit members and/or the unit as a whole. Nor were the UFT’s actions discriminatory or taken in bad faith, since it accorded Freedman’s grievance the same priority as all other similar grievances. The ALJ rejected the argument that a violation existed “as a matter of law” based upon the length of the delay in processing the grievance, since the UFT had acted in good faith and the contractual right Freedman had asserted in the grievance was subject to the UFT’s obligation to represent the unit as a whole and to the UFT’s right to negotiate away or settle the matter without his consent. (ALJ Blassman, U-21941, 5/1/01)

TOWN OF MAMARONECK AND THE MAMARONECK POLICE BENEVOLENT ASSOCIATION, INC.. Where the method of distributing vacation, i.e. seniority, remained unchanged, the Town did not violate the Act when it discontinued the practice of allowing officers to overlap vacation days. (ALJ Doerr, U-22192, 5/2/01)

PROFESSIONAL STAFF CONGRESS/CUNY AND CITY UNIVERSITY OF NEW YORK. Allegations that City University of New York violated the Act by unilaterally mandating evaluations of department chairpersons was conditionally dismissed and deferred to the parties’ contractual grievance-arbitration procedures. (ALJ Cacavas, U-22329, 5/7/01)

SARA-ANN P. FEARON AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS. Fearon’s charge that the District acted improperly at a grievance hearing was dismissed as untimely. The charge that the Union improperly failed to arbitrate her grievance was dismissed because there were no facts which would establish that the Union’s conduct was arbitrary, improperly motivated or in bad faith. (Director Klein, U-22492, 5/8/01)

STEVEN E. SHOVERS AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO. A charge alleging that the UFT violated the Act when it removed an individual from union office was dismissed as untimely, and for lack of jurisdiction over internal union affairs. (Director Klein, U-22410, 5/10/01)

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 ALJ dismissed a charge alleging that the union violated its duty of fair representation by failing to pursue a grievance to step three and beyond on his behalf. The ALJ concluded that the union did not act arbitrarily by not processing the grievance further. The evidence demonstrated that the union reviewed the charging party’s claim and concluded that it was not meritorious. Since his interpretation of the collective bargaining agreement was not the only possible one, the charge was dismissed since the union did not act in an arbitrary fashion. (ALJ Maier, U-21928, 5/17/01)

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 charging party’s allegation that her bargaining agent breached its duty of fair representation by refusing to file for grievance arbitration was dismissed as untimely as the charging party was aware more than 4 months prior to the filing of the charge that her bargaining agent refused to utilize the grievance process regarding her complaint. (ALJ Comenzo, U-21606, 5/17/01)

MICHAEL W. CIOCE AND WESTCHESTER COUNTY CORRECTION OFFICERS BENEVOLENT ASSOCIATION, INC., AND COUNTY OF WESTCHESTER. The Director dismissed a charge alleging that the Union breached its duty of fair representation when it failed to consider an employee’s grievance because the grievant did not appear before its grievance committee. There were no facts to establish that the Union’s action was arbitrary, discriminatory or in bad faith. (Director Klein, U-22298, 5/18/01)

THOMAS MAGEE AND LAKELAND CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the charge because it was untimely and there were no facts pled which would establish any violation of the Act. (Director Klein, U-22462, 5/24/01)

TOWN OF BEDFORD AND POLICE BENEVOLENT ASSOCIATION OF THE TOWN OF BEDFORD. The Town alleged that the PBA violated §209-a.1(b) of the Act by submitting nonmandatory items to interest arbitration. Found to be nonmandatory was a new disciplinary proposal seeking to supplant the disciplinary scheme set forth in the Westchester Police Act of 1936. Section 76(4) of the Civil Service Law (CSL) was found to foreclose collective bargaining over disciplinary terms which would replace or modify extant disciplinary schemes predating the enactment of CSL §§75 and 76. Also found to be nonmandatory was a proposal restating the Town’s right to assign light duty pursuant to the terms of General Municipal Law (GML) §207-c. Found to be mandatory was a proposal, devoid of the term de novo, which sought arbitration of eligibility determinations under GML §207-c. (ALJ Doerr, U-22118 5/25/01).

CRAIG E. KREGER AND DELAWARE COUNTY CORRECTION OFFICERS UNION. The Director dismissed Kreger’s charge as being deficient. Having resigned, he was no longer a public employee and, therefore, lacks standing to file a charge. Moreover, the Union’s failure to represent an “employee” in an unemployment benefits matter is not, in itself, a violation of its duty of fair representation. A letter denigrating Kreger, which the Union had published in a local newspaper, was in response to an earlier letter from Kreger which was critical of the Union and had no relationship to any duty it had to represent Kreger. (Director Klein, U-22344, 3/1/01)

SERBAN P. RUSE AND TRANSPORT WORKERS UNION, LOCAL 100, AND NEW YORK CITY TRANSIT AUTHORITY. To the extent the charge, filed on June 13, 2000, sought to challenge an August 1999 extension of new employee’s probationary period, the claim is time-barred by PERB’s four month statute of limitations. In evaluating a motion to dismiss made at the close of the charging party’s presentation of its case, the trier of fact must assume the truth of the evidence and give every favorable inference to the proof. In order to establish a violation of §§209-a.1(a) and (c) of the Act, a charging party must show involvement in protected activity, employer knowledge of that activity and that the employer acted because of that activity. Even were the charging party to meet the first prong of that three-part test by showing that he signed what he believed to be a union petition, the charge fails on the other elements. A breach of the duty of fair representation is evidenced by action which is arbitrary, discriminatory or in deliberate bad faith. Where proof showed that union met with terminated probationary employee, investigated his concerns, met with management on his behalf and ultimately concluded that there was nothing that it could do to restore him to his position, there is no evidence that the union breached its duties under the Act. Where union representative sent charging party two letters at his proper address, in response to his communications, there is no failure to respond despite the charging party’s claim that the letters were never received. Where a charging party has received a clear response from his union, the union’s subsequent failure to respond to his repeated inquiries covering the same topic already addressed does not violate the Act. The union’s duty to respond is analyzed in light of the reasonableness of the employee’s request. (ALJ Cacavas, U-21769, 3/1/01)

COUNCIL 82, AFSCME, AFL-CIO AND STATE OF NEW YORK (DEPARTMENT OF ENVIRONMENTAL CONSERVATION). The ALJ found that the State violated the Act when it unilaterally changed the previous methodology by which time worked by Environmental Conservation Captains and Environmental Investigators III's was recorded, by prohibiting the recordation of time spent driving from their home/office to their regional or district office and return. Inasmuch as hours of employment are a statutory term and condition of employment, any changes to existing methods of time recordation must be collectively bargained. (ALJ Mayo, U-21874, 3/1/01)

POLICE ASSOCIATION OF NEW ROCHELLE AND CITY OF NEW ROCHELLE. An improper practice charge, which alleged that the City violated §209-a.1(d) of the Act when it unilaterally amended work rules pertaining to the confinement of sick or injured police officers, was conditionally dismissed and deferred to the parties’ grievance procedure. (ALJ Mayo, U-22353, 3/16/01)

JOEL FREDERICSON AND NEW YORK CITY TRANSIT AUTHORITY. Fredericson, a TWU shop steward and safety committee member, filed a charge alleging that the Authority violated §§209-a.1(a) and (c) of the Act when it suspended and disciplined him in retaliation for performing a safety check at a track repair site. The ALJ dismissed in part and sustained in part the charge. To the extent that the Authority acted because Fredericson attempted to stop track workers from working, the charge was dismissed. Although safety inspections generally constitute protected activity, attempts to stop work violate the Act’s prohibition of strikes and work stoppages absent evidence that the action was based upon a good faith belief that an “imminent threat” to the workers’ safety existed or that a hazard existed that was more serious than that normally existing in the workplace. The ALJ rejected Fredericson’s argument that a totally subjective standard was appropriate in determining good faith belief, holding that objective evidence must be presented demonstrating that a reasonable union representative or worker would have believed that such a hazard existed. The ALJ found that Fredericson failed to present such objective evidence since the work had been performed in the same manner with less “flagging” protection before and after the date of Fredericson’s flagging complaint and since the work was performed in the usual manner. However, the ALJ held that the Authority violated the Act when it disciplined Fredericson for returning to the track work site to take photographs to substantiate his safety violation allegation, as that action constituted protected activity and Fredericson was not attempting to stop the work at that time. (ALJ Blassman, U-19228, 3/16/01).

ROBERT HICKEY AND HEMPSTEAD SCHOOL ADMINISTRATORS ASSOCIATION AND HEMPSTEAD UNION FREE SCHOOL DISTRICT. Neither res judicata nor collateral estoppel is applicable where the prior action relied upon in asserting the defense was an improper practice charge which was not processed because it was determined to be untimely. In order for an action to be timely before PERB, it must be brought within four months after the complained of act upon which the charge is based. A union does not breach its duty of fair representation by securing for one unit member a benefit which is less than that negotiated for others in the unit. Absent a showing of action that was arbitrary, discriminatory or in bad faith, a violation by the union will not be found. Further, claimed violations which are not pled in the charge, but only referenced in a post-hearing brief, will not be considered as a basis for finding liability under the Act. (ALJ Cacavas, U-21755, 3/20/01)

REEVA MILLER AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Administrative Law Judge dismissed a charge alleging a violation of §§209-a.1(a) and (c) because Miller engaged in protected activity when she requested a program change, and the District, thereafter, gave her negative evaluation and ratings resulting in the initiation of Education Law (EL) §3020(a) proceedings against her. The ALJ found that the District did not take such action because of her activity in seeking a program change, but because it believed that she was not teaching in a satisfactory manner. Five different individuals gave her negative evaluations, and three of them were not aware that she engaged in the protected activity. With regard to the other two individuals, the ALJ concluded that they evaluated Miller in an unsatisfactory manner because of a bona fide belief that she did not perform satisfactorily. (ALJ Maier, U-21339, 3/21/01)

JAMES ISRAEL AND STATE OF NEW YORK (OFFICE OF CHILDREN AND FAMILY SERVICES). The State’s motion to dismiss a charge alleging that the charging party, a New York State employee, was ordered to cease mailing literature regarding his campaign for PEF president to unit employees at their workplaces, was granted. Applying the standards regarding a motion to dismiss set forth in County of Nassau (Police Dep’t) (Unterweiser), 17 PERB ¶3013 (1984) and also citing to State of New York, 33 PERB ¶3024 (2000) (appeal pending), the ALJ found that the charging party received such an order. However, the record contained no evidence regarding the remaining elements of the case. (ALJ Comenzo, U-21493, 3/21/01)

WILLIAM R. EXUM AND DISTRICT COUNCIL 37, AFSCME. Two charges filed by Exum were dismissed as deficient. He failed to provide specific facts or to plead facts which would establish arbitrary, discriminatory or bad faith conduct by the union. Although misconduct was also attributed to Exum’s employer, the employer was not named as a respondent, nor was its conduct linked to any protected activities by Exum. (Director Klein, U-22393 and U-22395, 3/27/01)

TEAMSTERS LOCAL 118, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO AND VILLAGE OF LYONS. An improper practice charge, alleging that the acting foreman at the Fire Department was demoted due to his filing of a grievance regarding compensation, was dismissed, based on the failure of the charging party to show that, but for his filing of the grievance, he would have retained the position. (ALJ Fitzgerald, U-21686, 3/29/01)

WHITESTOWN POLICE BENEVOLENT ASSOCIATION AND TOWN OF WHITESTOWN. The Director found that the Town violated the Act when it unilaterally ended its practice of permitting employees to use its police vehicles to travel outside of the Town for personal reasons. (Director Klein, U-21923, 3/29/01)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND VILLAGE OF PHILMONT. UPSEU alleged that the Village had violated §209-a.1(c) of the Act when it reduced the work week of a unit member from forty hours to twenty hours because he had filed contractual grievances. The ALJ found no violation, insofar as there were legitimate business reasons for the reduction in hours, and the union’s claim of temporal proximity between an arbitration hearing and the adverse action complained of was insufficient to sustain the charge. (ALJ Mayo, U-21710, 3/30/01)

LANSING SCHOOL SERVICE ASSOCIATION, NEA/NY, NEA AND LANSING CENTRAL SCHOOL DISTRICT. A charge alleging that the District violated §§209-a.1(a) and (d) of the Act when it subcontracted the exclusive unit work of nurse was dismissed following examination of an offer of proof. Concluding that the Association failed to establish a viable claim to exclusivity over the at-issue work, and did not offer either its sources of information or belief or a factual predicate that would support the finding of a discernable boundary over unit work, the ALJ found that the Association was not entitled to a hearing as there was no dispute regarding the material facts. (ALJ Barsamian, U-22129, 3/30/01)

JOHN ZITO AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed as deficient Zito’s charge that the UFT violated the Act when it refused to allow him outside counsel to defend him against disciplinary charges. Zito pled no facts which would establish that such refusal was arbitrary, discriminatory or in bad faith. (Director Klein, U-22425, 4/13/01)

SHEIK H. AMIR AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed as deficient Amir’s charge that his union improperly declined to pursue his grievance, there being no facts to establish that its conduct was arbitrary, discriminatory or in bad faith. (Director Klein, U-22451, 4/20/01)

FRANK MONTALBANO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed Montalbano’s charge that his employer violated the duty to bargain by issuing an untimely grievance decision and by not negotiating a settlement with him. Individual employees lack standing to allege a failure to bargain, and Montalbano’s amended charge was not sworn to and was not filed with the requisite copies. (Director Klein, U-22457, 4/20/01)

NEW YORK STATE CORRECTION OFFICER AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - LYON MOUNTAIN CORRECTIONAL FACILITY). A charge alleging that the State violated §209-a.1(d) of the Act when it unilaterally subcontracted to civilian farmers the task of transporting Lyon Mountain Correctional Facility inmate work crews from the Clinton Correctional Facility farm to an outlying farm (Venne Farm), together with the task of their care and control while working on the satellite parcel, was dismissed upon a finding that the at-issue work was not exclusively unit work. (ALJ Barsamian, U-21961, 4/23/01)

HELEN KRESZ AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS. The Director dismissed as deficient Kresz’s charge that the employer violated the Act when she was required to sign in and out and when the Union failed to represent her. The charge is untimely, it did not contain a clear and concise statement of the facts, there are no facts to establish any linkage between the employer’s action and the exercise of any protected rights under the Act and no facts to establish that the Union’s conduct was arbitrary, discriminatory or in bad faith. (Director Klein, U-22249, 4/27/01)

TOWN OF WALLKILL AND TOWN OF WALLKILL POLICE BENEVOLENT ASSOCIATION, INC. The new bargaining agent was found to have violated the duty to negotiate in good faith during its four months of bargaining by refusing to identify the changes set forth in its initial negotiating proposals, by walking out of a negotiations session in response to the employer’s refusal to negotiate regarding a non-unit title, by threatening in a memorandum to the employer’s chief executive officer and its legislative body to declare impasse if the employer did not alter the make-up of its negotiating team, by declaring impasse prematurely, and by bypassing the employer’s chief negotiator in delivering the declaration of impasse to the employer and by listing therein a non-negotiator as the representative for purposes of the impasse. (ALJ Comenzo, U-20827, 4/27/01)

DEPUTY SHERIFF’S BENEVOLENT ASSOCIATION OF ONONDAGA COUNTY, INC. AND COUNTY OF ONONDAGA AND SHERIFF OF ONONDAGA COUNTY. The charge was deferred to the parties’ contractual grievance procedure as the charging party has filed a contract grievance based upon the same facts as pled in the charge. (ALJ Comenzo, U-22311, 4/27/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF ULSTER. The union filed two separate charges collectively alleging that the Director of its skilled nursing facility for the elderly violated §§209-a.1(a), (b) and (c) of the Act when she instituted a medication pass audit of a CSEA representative who is a licensed practical nurse employed by the facility and issued two written warnings followed by formal disciplinary charges pursuant to Civil Service Law §75. It was the union’s position that the sanctions were essentially in retaliation for the employee’s having gone to the press regarding patient conditions at the facility. The employer argued that its actions were driven by legitimate business reasons. At the close of the union’s case, the ALJ granted the employer’s motion to dismiss the (b) charge for failure to state a prima facie case and denied the motion as to the (a) and (c) charges. Based on a record covering six days of testimony, the ALJ dismissed the (a) and (c) charges on the merits upon findings that the employee’s focus was primarily on patient conditions as compared to working conditions and not protected by the Act; but, assuming otherwise, the employer had legitimate business reasons for disciplining the employee for breaches of policy and patient rights as well as for her conduct in dispensing medications and abandonment of her duty. (ALJ Barsamian, U-21461 & U-21887, 4/30/01)

JOHN BOSCO AND CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 882, AFSCME, LOCAL 1000, AFL-CIO. The ALJ dismissed a charge alleging a violation of §209-a.2(a) and held that the union did not engage in actions which caused or attempted to cause the employer to interfere with the employee's right to process a grievance by sending a letter to unit members saying it would support the unit if it did not reappoint Bosco as a unit officer. The ALJ held that the employee engaged in protected activity when he filed a "personal" grievance, which he had the right to do under the parties' collective bargaining agreement, once he made it clear in the grievance itself that it was a "personal" grievance and not supported by CSEA. The letter, however, clearly did not refer to the employer not reappointing Bosco to his position, but referred to the unit reappointing him as an officer. Additionally, balancing the impact, if any, on Bosco's right to process the grievance against CSEA's right to communicate with its membership, the ALJ concluded that the that the union did not interfere restrain, or coerce Bosco in exercising his rights under §202 of the Act. (ALJ Maier, U-21566, 2/7/01)

TANYA Y. NERO AND TRANSPORT WORERS UNION, LOCAL 1000 AND NEW YORK CITY TRANSIT AUTHORITY. Pursuant to §212 of the Rules of Procedure, the ALJ dismissed Nero's charge for lack of prosecution since she failed to attend the conference, to respond to a letter advising her that the charge was subject to dismissal for her failure to appear, and to provide any reason for her absence. (ALJ Maier, U-22148, 2/7/01)

AFSCME N.Y. COUNCIL 66 AND LOCAL 2574, ALLEGANY COUNTY EMPLOYEES UNIT AND COUNTY OF ALLEGANY. An improper practice charge, alleging that the County violated the Act when it unilaterally assigned bargaining unit duties to nonunit personnel and refused to engage in impact negotiation on the change, was conditionally dismissed pending the outcome of a grievance on the same matter. (ALJ Fitzgerald, U-22085, 2/14/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, WILLIAMSVILLE CENTRAL SCHOOL DISTRICT TRANSPORTATION UNIT, LOCAL 868 AND WILLIAMSVILLE CENTRAL SCHOOL DISTRICT. CSEA's charge alleging that the District improperly assigned bus runs and subcontracted bus runs to a private company was deferred to the parties' contractual grievance arbitration mechanism. (ALJ Doerr, U-22041, 2/14/01)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK. The charge that the State refused to make payments to eligible unit employees pursuant to a "productivity gain program" was deferred to the grievance procedure which ends in binding arbitration in the parties' expired collective bargaining agreement, pursuant to the parties' agreement to process a grievance to be filed by the Association. (ALJ Comenzo, U-21723, 2/14/01)

LOCAL 456, I.B.T. AND CITY OF PEEKSKILL. A charge alleging that the City violated §209-a.1(d) of the Act when it unilaterally subcontracted to a nonunit employee the task of ordering vehicle parts was dismissed upon a finding that the at-issue work was not exclusively unit work. (ALJ Barsamian, U-22116, 2/21/01)

SCHUYLER-CHEMUNG-TIOGA EDUCATIONAL ASSOCIATION AND SCHUYLER-CHEMUNG TIOGA BOARD OF COOPERATIVE EDUCATIONAL SERVICES. On a stipulated record, the union's charge alleging that BOCES refused to provide information relevant and necessary for the union to investigate a potential grievance was deferred for determination on the merits of the dispute under the parties' contractual grievance procedure. A term in the parties' collective bargaining agreement defined the union's right to receive information concerning grievances. To the extent the contractual provision required BOCES to provide information, the contract mirrored statutory obligation. Under City of Buffalo, 17 PERB ¶3090 (1984), the contractual provision complemented, but did not extinguish the statutory right. Therefore PERB had jurisdiction to entertain the alleged violation of §209-a.1(d). Moreover, PERB had jurisdiction over the alleged independent violation of §209-a.1(a). Although PERB does not generally defer the merits of disputes where an independent violation of §209-a.1(a) is alleged, relying on City of Cohoes, 32 PERB ¶3020 (1998), 32 PERB ¶3046 (1999), conf'd 33 PERB ¶7019 (3d Dep't 2000), the ALJ concluded that the Board would not make statutory rights negotiable because it provides a contractual forum for resolving a dispute concerning those rights while declining to give effect to that contractual forum under PERB's deferral policy. (ALJ Quinn, U-21790, 2/23/01)

STUART TODD SELIGSON AND TEAMSTERS LOCAL 237. Seligson's charge that Local 237 failed to fairly represent him at grievance hearings was dismissed as deficient. He failed to identify the subsections of the Act which had been violated, to submit a sworn amendment in response to a notice of deficiency, and to provide the factual specificity required by PERB's Rules. (Director Klein, U-22317, 2/26/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, TOMPKINS COUNTY UNIT 8900, TOMPKINS COUNTY LOCAL 855 AND COUNTY OF TOMPKINS. An improper practice charge alleging that the County unilaterally ceased providing County-owned vehicles to certain unit employees for commuting to and from work was deferred to the grievance procedure of the parties' collective bargaining agreement. Said agreement was in effect at the time of the alleged change, and a contract grievance was filed on the same facts. (ALJ Comenzo, U-22268, 2/27/01)

TOWN OF YORKTOWN POLICE BENEVOLENT ASSOCIATION, INC. AND TOWN OF YORKTOWN. An improper practice charge alleging that the Town unilaterally changed unit employees' regular work schedules was deferred to the grievance procedure of the parties' collective bargaining agreement. The agreement was in effect at the time of the alleged change and a contract grievance was filed on the same facts. (ALJ Comenzo, U-22008, 2/28/01)

NEW YORK STATE CORRECTION OFFICER AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - BAYVIEW CORRECTIONAL FACILITY). A charge alleging that the State violated the Act when it changed the number of "incident days" available to correction officers at Bayview Correctional Facility had been conditionally dismissed on April 26, 2000, when it was determined at a pre-hearing conference that grievances regarding the subject of the charge had been filed in February and March of 2000. The ALJ denied NYSCOPBA's motions of November 30, 2000, and December 13, 2000, to re-open the charge. Finding the reasons proffered in support of the motions were insufficient in law to vitiate deferral, the ALJ also found that the motion was untimely for laches. (ALJ Barsamian, U-21565, 1/2/01)

DANIEL ISAACS AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ dismissed a charge alleging that the employer had violated §209-a.1(c) of the Act by denying a job assignment because the charging party had run for union office. Finding that the charging party did not show that the action was taken because of his union activities, and that there were legitimate reasons for the action, the charge was dismissed. (ALJ Maier, U-21831, 1/2/01)

RAYMOND D. SCHAFFER AND BROOME COUNTY SHERIFF'S LAW ENFORCEMENT ASSOCIATION. Schaffer's charge that the Association improperly refused to represent him in a disciplinary matter was dismissed since it was not filed in compliance with PERB's Rules, and he failed to plead facts supporting his conclusion that the reasons given for the refusal were "significantly flawed." Director Klein, U-22139, 1/2/01)

MICHAEL RAMSEY AND NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION. The Director dismissed Ramsey's charge as deficient. Contrary to his allegation, the facts pled demonstrated that the Association's conduct was in compliance with, rather than in violation of, a stipulation reached in a disciplinary arbitration proceeding. (Director Klein, U-22183, 1/2/01)

CITY OF SCHENECTADY AND SCHENECTADY POLICE BENEVOLENT ASSOCIATION. The PBA alleged that the City violated the Act when it submitted proposals encompassing nonmandatory subjects of bargaining to interest arbitration. The ALJ found two of the three alleged nonmandatory items to be mandatory under the supplemental theory of negotiability set forth in City of Cohoes, 31 PERB ¶3020 (1998). The City, however, was ordered to withdraw a proposed random drug testing procedure upon a finding that it was unconstitutional. The proposal allowed for unfettered employer discretion in establishing the timing and frequency of testing. Such discretion was an impermissible intrusion upon employee privacy interests. (ALJ Doerr, U-21881, 1/05/01).

CITY OF NIAGARA FALLS AND NIAGARA FALLS POLICE CLUB, INC. Interest arbitration proposals which would require the filling of vacancies within ten days of notice period expiration, provision of tier 2 benefits upon the enactment of state legislation permitting such benefits to be obtained through interest arbitration, and removal of residency requirement, were all found to be nonmandatory subjects of bargaining. (ALJ Fitzgerald, U-21849, 1/8/01)

COLETTE CAMPBELL AND SUBWAY SURFACE SUPERVISORS ASSOCIATION AND NEW YORK CITY TRANSIT AUTHORITY. Reinstatement prior to hearing of employee to sought-after position does not make moot a claim that the union breached its duty of fair representation. Although the remedy may be impacted, the question of whether statutory duties were breached remains viable. A charging party cannot artificially extend the statute of limitations for the commencement of actions by asking the same question repeatedly over a prolonged period of time, despite having received a clear and unequivocal response from the union at a much earlier date. A union's denial of a request from a disgruntled member to cease dues deductions is not a violation of the Act absent a showing that it was arbitrary, discriminatory or in bad faith. A union president's statement to a member seeking a representation that she could be demoted further does not, without more, constitute a breach of the duty of fair representation. Although the member claimed that she perceived the statement to be a threat, she also admitted to having knowledge that only the employer could effectuate a change in title. Where a union responded verbally to a member's letters, the failure to provide a written response does not breach its duty of fair representation. Further, where a union representative attempted to reach a member to respond to her inquiries, but she reached him first, no violation is shown. A union cannot be found to have breached its duty of fair representation where the charging party acknowledges that one representative, if not another, acted on her behalf and played a meaningful role in the resolution of her dispute. (ALJ Cacavas, U-21482, 1/12/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, COHOES CITY SCHOOL UNIT OF THE ALBANY COUNTY LOCAL 801 AND COHOES CITY SCHOOL DISTRICT. An improper practice charge alleging that the District violated the Act when it unilaterally changed a long-standing practice of allowing the use of sick leave without medical documentation was conditionally dismissed when CSEA indicated its intention to file a grievance on the same matter. (ALJ Barsamian, U-22101, 1/24/01)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF ENVIRONMENTAL CONSERVATION). The ALJ found that the State violated §209-a.1(d) of the Act when it unilaterally issued an order which required the removal of answering machines from the unit members' State-provided telephones, and further ordered that all calls not answered within four rings on said phones be automatically transferred to a State Police dispatcher, thereby depriving the unit members of the beneficial use of said free phone service, a term and condition of employment and a mandatory subject of negotiation. (ALJ Mayo, U-21599, 1/25/01)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, SUNY OSWEGO LOCAL 611 AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK - OSWEGO). The State was found to have violated §209-a.1(a) and (c) of the Act when it issued counseling memoranda to a CSEA official for asking a local newspaper to move a newspaper delivery box at the SUNY Oswego campus because it created a safety hazard for unit employees assigned to pick up the paper. The State's defense that the official's conduct was "overzealous" because it was beyond his authority in one of his CSEA capacities, as co-chair of a joint health and safety committee, was rejected. (Assistant Director Toomey, U-21694, 1/25/01)

TOWN OF SHAWANGUNK AND TOWN OF SHAWANGUNK POLICE BENEVOLENT ASSOCIATION. The Town and the PBA alleged violations of §209-a.2(b) and §209-a.1(d), respectively, of the Act based upon submissions of proposals encompassing nonmandatory subjects of bargaining to interest arbitration. The ALJ found one of the PBA's proposals to be mandatory under the supplemental theory of negotiability, one to be mandatory as it involved health benefits upon retirement for current employees and one nonmandatory as it was a unitary demand including mandatory and nonmandatory subject matter. Both the Town's proposal for a managements rights clause and its proposal for evaluating part-time employees annually were found to be mandatory. (ALJ Doerr, U-21842 and U-21854, 1/26/01)

PELHAM POLICE BENEVOLENT ASSOCIATION, INC., AND VILLAGE OF PELHAM. Demands relating to a sick leave monitoring program which included confinement to residence of the absent employee, and a sick leave incentive were found to be nonarbitrable because they were vague, ambiguous and had not been the subject of "focused negotiations" before their introduction to interest arbitration. (Assistant Director Toomey, U-21773, 1/31/01)

WESTHAMPTON BEACH CUSTODIAL EMPLOYEES' ASSOCIATION AND WESTHAMPTON BEACH UNION FREE SCHOOL DISTRICT. The District's demand that a new union entering into service agreement with the employee association provide proof of majority status prior to acknowledging it as the unit representative evidences neither bad faith nor unlawful interference under the Act. An employer's failure to provide requested information to the Association president evidences bad faith and proof of that action alone allows the charge to survive a motion to dismiss made at the close of the charging party's direct case. Where evidence subsequently showed that the employer did respond to the inquiry, the alleged subsection (d) violation is dismissed. A question by the employer as to an obvious change in a union's status is not an interrogation and does not constitute unlawful interference. Similarly, an employer's inquiry into missing supplies, without more, does not evidence interference. A supervisor's statement to a new union representative that union business could not be conducted on work time and his refusal to put an employee on the telephone in response to the representative's request does not violate the Act where the supervisor was merely reciting the District's rule regarding when union business could be conducted. Where a supervisor's aggressive response to a union representative in reaction to a provocative situation does not reference the representative's connection with the union and is personal, there is no violation of the Act. Neither the courts of this state nor PERB has definitively adopted with respect to public employees, the ruling in NLRB v. Weingarten, which affords union representation to private sector employees in interviews which reasonably may result in discipline. As such, a public employee's participation in an investigatory meeting, particularly absent his objection or request for representation, does not violate the Act. An employer's discharge of an employee, who was also the Association president at the time, is not unlawful where the employee engaged in misconduct and could show nothing other than the timing of events in support of his theory of unlawful interference. (ALJ Cacavas, U-21417, 1/31/01)

ARTHUR ARNEAUD AND P.S. 320 AND D.C. 37. The Director dismissed as deficient Arneaud's charge that his employer improperly gave him an ultimatum to resign or be fired and his bargaining agent improperly belittled him. Arneaud failed to file sufficient copies of his charge, lacked standing to allege certain violations, did not plead specific facts, did not adequately identify the respondents and failed to plead facts which established the violations alleged. (Director Klein, U-22265, 1/31/01)

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last modified: 3/26/2012
URL: http://perb.ny.gov/Decarc2001.asp