NYS PERB DECISIONS
Return to NYS PERB Home Page New York State
 

Archived Decision Summaries - January 1, 2007 through December 31, 2007

(Updated October 22, 2008)


Go To:  Recent Board Decision Summaries   Separator Bar    Archived Decision Summaries Index

Decision Summaries Of The Board


Board Certifications

VILLAGE OF MONTGOMERY POLICE BENEVOLENT ASSOCIATION has been certified to represent all police officers of the Village of Montgomery. Excluded are Officer in Charge, Captains and Lieutenants.(C5627, 5/2/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all full-time and part-time Paramedics and Emergency Medical Technicians employed by the Town of Colonie. All other Town employees are excluded from the unit. (C5631, 5/2/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all full-time and half-time employees of the Village of Mineola in the following titles: Labor Supervisor, Typist Clerk, Laborer, MultiKeyboard Operator, Secretary to the Board of Zoning and Appeals, Highway Supervisor, Senior Typist Clerk, Parking Meter Attendant, Messenger, Account Clerk, Automotive Mechanic, Secretary to the Water Commission, Cashier, Cleaner, Court Clerk, Recreation Attendant, Water & Sewer Servicer. Excluded from the unit are: All other employees including temporary, seasonal and parttime employees and employees in the following titles which are defined as managerial and/or confidential in the collective bargaining agreement: Village Clerk, Village Deputy Clerk, Village Treasurer, Deputy Village Treasurer, Village Accountant, Secretary to Board of Trustees, Code Enforcement Inspectors, Fire and Zoning Investigators, Superintendent of Public Works, Assistant Superintendent of Public Works, Village Court Clerk, Research Assistant to the Board of Trustees, Highway Department Supervisor, Water Department Supervisor, Parks Department Supervisor, Sanitation Department Supervisor, Village Auditor, Deputy Auditor, Supervisor of Sewer Department, Labor Supervisors, Activities Coordinator, Assistant Activities Coordinator, Superintendent of Buildings, Deputy Court Clerk. (C5645, 5/2/07)

ULSTER COUNTY STAFF ASSOCIATION, NYSUT, AFL-CIO has been certified to represent all employees of the County of Ulster in the titles of Payroll Manager, Motor Vehicle Bureau Supervisor, Personnel Analyst, Recruitment and Outreach Specialist, Senior Personnel Analyst, Senior Projects Manager, Probation Supervisor, Assistant Director of Patient Services, Supervising Public Health Nurse, Chemical Dependency Specialist/Program Supervisor, Mental Health Specialist/Program Supervisor, Local Government Unit Program Supervisor, Secretary to the Director of Community Mental Health, Assistant Director of Social Services, Secretary to Commissioner of Social Services, Staff Development Director, Assistant Deputy Director for Clinical Services, Employee Benefits Administrator, Environmental Health Manager, Food Service Manager, Director of Maintenance, Director of Housekeeping, Section Supervisor for Highways and Bridges, Garage Supervisor, Bridge Supervisor, Sr. Staff Attorney DSS, Department of Social Services Attorney. All other County employees are excluded. (C5654, 5/2/07)

TOWN OF WEBB ADMINISTRATORS ' ASSOCIATION has been certified to represent all employees of the Town of Webb Union Free School District in the titles of K12 Building Principal, Chairperson for Committee on Special Education, Head Custodian, Transportation Supervisor and Cafeteria Manager. All other employees of the District are excluded. (C5648, 6/6/07)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 17 has been certified to represent a unit of all full-time motor equipment operators employed in the Town of Concord Highway Department. Excluded from the unit are the Highway Superintendent, Deputy Highway Superintendent, Crew Chief and confidential employees as defined by law. (C5655, 5/2/07)

TEAMSTERS LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent a unit of all full-time employees in the Town of Cambria's Highway, Sewer and Water Department. All other employees are excluded. (C5666, 5/2/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all non-instructional personnel of the Averill Park Central School District including, but not limited to, the following titles: Account Clerk, Child Care Worker, Auto Mechanic, Head Auto Mechanic, Auto Mechanic Assistant, Bus Driver, Bus Attendant, Head Groundskeeper, Groundskeeper, Messenger, Maintenance Mechanic, Custodian, Custodial Worker, Cleaner, Senior Typist, Typist, Typist Assigned to Principal, Typist Assigned to Administrator/Supervisor, Teacher Aide, Teacher Aide Assigned to the Classroom, Cook, Food Service Helper and School Monitor. Excluded are all Supervisors and Management/Confidential employees, as well as substitute employees and employees working two (2) hours per day or less. (C5667, 5/2/07)

TEAMSTERS LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent all full-time and regular part-time employees of the Village of Youngstown's Department of Public Works. All other employees of the Village are excluded. (C5670, 5/2/07)

TOWN OF WEBB ADMINISTRATORS' ASSOCIATION has been certified to represent all employees of the Town of Webb Union Free School District in the titles of K-12 Building Principal, Chairperson for Committee on Special Education, Head Custodian, Transportation Supervisor and Cafeteria Manager. All other employees of the District are excluded from the unit. (C-5648, 6/6/07)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 17 has been certified to represent all full-time Motor Equipment Operators employed in the Town of Concord Highway Department. Excluded from the unit are the Highway Superintendent, Deputy Highway Superintendent, Crew Chief and confidential employees as defined by law. (C-5655, 6/6/07)

NORTH SALEM SCHOOL-RELATED PROFESSIONALS, NYSUT, AFT, AFL-CIO has been certified to represent all Custodial employees, Transportation employees, Maintenance employees and Mechanics of the North Salem Central School District. All other District employees are excluded from the unit. (C-5694, 6/27/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all full-time and part-time Police Officers of the Town of Windham. Excluded from the unit are the Chief of Police and all other Town employees. (C-5693, 7/25/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent a unit of all Police Officers employed by the Town of Cairo. The Police Chief and all other Town employees are excluded from the unit. (C-5699, 7/25/07)

ARKPORT STAFF UNITED has been certified to represent all full-time and part-time employees in the titles of: Teacher Aide (including Special Education Aide, Library Aide, Instructional Aide), Maintenance Mechanic, Head Building Maintenance Mechanic, Groundskeeper, Student Services Secretary, Account Clerk/Payroll Attendance Coordinator, Cleaner, Custodian, and all other secretarial, buildings, grounds and maintenance titles, and computer support titles employed by the Arkport Central School District. Excluded from the unit are the Secretary to the Superintendent and all other District employees. (C-5700, 7/25/07)

YONKERS FEDERATION OF TEACHERS, NYSUT, AFT, AFL-CIO has been certified to represent all full-time Teachers, Teaching Assistants and those long-term Substitute Teachers who are employed by The Charter School of Educational Excellence for more than 95 consecutive working days except that approved personal, illness and/or approved absences of not more than 8 days will not be considered a break in consecutive workdays. Principals, Assistant Principals, Cafeteria Workers, Custodial Workers, Teacher Aides, Clerical Personnel and Security Personnel and all others are excluded from the unit. (C-5712, 8/29/07)

UNITED FOOD & COMMERCIAL WORKERS, LOCAL 1262, AFL-CIO has been certified to represent all employees of the Hudson City School District in the following titles: All cafeteria workers at all of the schools of Hudson City School District, including managers. Excluded are general managers, food service supervisor, and temporary per diem food servers. (C-5688, 9/25/07)

LABORERS INTERNATIONAL UNION OF NORTH AMERICA LOCAL 17 has been certified to represent all full-time and part-time employees assigned to the Town of Prattsville Highway Department. The Superintendent is excluded. (C-5709, 9/25/07)

TEAMSTERS LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent all full-time and regular part-time employees of the Town of Wilson Highway Department. All other Town employees are excluded from the unit. (C-5732, 9/25/07)

LOCAL 317, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA has been certified to represent all full-time Motor Equipment Operators in the Village of Homer highway, water and sewer departments. Excluded from the unit are all elected officials, office clerical and seasonal employees and all other Village employees. (C-5675, 11/5/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all employees of the County of Franklin and the Sheriff in the following titles: Cook, Cook Manager, Account Clerk/Civil Deputy, Correction Officer, Deputy Sheriff/Correction Officer, Senior Account Clerk, Correction Officer Sergeant, Deputy Sheriff/Correction Officer Sergeant, Deputy Sheriff/Civil Officer, Senior Account Clerk/Civil Deputy. Excluded from the unit are the Sheriff, Undersheriff, Principal Account Clerk/Typist, Correctional Facility Nurse, Warden. (C-5714, 11/5/07)

MALVERNE SECURITY ASSOCIATION, NYSUT, AFT, NEA, AFL-CIO has been certified to represent all full-time and part-time security personnel of the Malverne Union Free School District. Excluded from the unit are administrators, supervisors and all other employees of the District. (C-5721, 11/5/07)

SOUTH BUFFALO CHARTER SCHOOL INSTRUCTIONAL STAFF ASSOCIATION/NYSUT/AFT, AFL-CIO has been certified to represent all Teachers, Teaching Assistants, Library Assistants, Reading Coaches, Counselors, Social Workers, Nurses, Mentors, Technology Coordinators and regular building Substitute Teachers employed by the South Buffalo Charter School. Excluded from the unit are all supervisors, managerial and confidential employees, administrators, business office staff, clerical employees, per diem substitute teachers, security employees and maintenance employees employed by the South Buffalo Charter School. (C-5729, 11/5/07)

ITHACA SUBSTITUTES ASSOCIATION, NYSUT, AFT, AFL-CIO has been certified as the representative of all per diem substitute teachers with a current letter of reasonable assurance of continued employment employed by the Ithaca City School District. All other employees of the District are excluded. (C-5730, 11/5/07)

LOCAL 338, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified the representative of all highway employees of the Town of Kortright. Excluded from the unit are all elected officials, seasonal employees and employees who work an average of less than 21 hours per week. (C-5728, 12/14/07)

Go To:  Recent Board Certifications   Separator Bar    Archived Decision Summaries Index

Representation

NEW YORK STATE PAROLE OFFICERS BENEVOLENT ASSOCIATION AND STATE OF NEW YORK (DIVISION OF PAROLE) AND PUBLIC EMPLOYEES FEDERATION, AFL-CIO. The Board granted the PBA’s motion for interlocutory appeal to review an interim ruling by the ALJ finding that Parole Officers should not be removed from the Professional, Scientific and Technical bargaining unit simply by virtue of their law enforcement duties. (C-5441, 6/27/07)
      Thereafter, the Board affirmed the ALJ’s decision, finding that Board precedent firmly establishes that fragmentation is appropriate for public employees who are police officers or hold a title that has also been granted police officer status by the Legislature and whose exclusive or predominant duties are the enforcement of the State’s general criminal laws. The Board found that, notwithstanding the important public safety functions performed by parole officers, as well as the dangers they face in dealing almost exclusively with a population of convicted felons, the Legislature has not granted them police officer status. Because the evidence in the record established that the parole officer titles did not perform criminal law enforcement duties as their exclusive or predominant responsibility, even those parole officers who are assigned to special services or operations, the Board found that the fragmentation sought by the PBA was not supported by the record and dismissed that aspect of the PBA’s petition. The matter was remanded to the ALJ to take further evidence on the other bases alleged by the PBA to support its fragmentation petition. (C-5441, 7/25/07)

RAMAPO POLICE SUPERIOR OFFICER’S ASSOCIATION AND TOWN OF RAMAPO AND RAMAPO POLICE BENEVOLENT ASSOCIATION. The Board affirmed the interim ruling of the Director, denying the motion of the Superior Officer’s Association for certification without an election pursuant to §201.9(g)(1) of the Rules. The Association had argued that a determination on the managerial/confidential status of three of lieutenants in the proposed unit could not delay its certification without an election. The Board held that a determination on an employer’s claim regarding an employee’s purported managerial and/or confidential status under §201.7(a) is both necessary and proper in rendering a uniting determination under the criteria set forth in §207.1 of the Act and certification prior to completion of the Director’s determination on unit composition would be premature. (C-5604, 8/29/07)

FASHION INSTITUTE OF TECHNOLOGY. The Board reversed the decision of the ALJ finding that FIT's Director of Health Services was not a managerial employee within the meaning of §201.7(a) of the Act. The Board, noting that an employee may be designated as managerial if the employee is a person who formulates policy on the behalf of the public employer, held that the policy formulated need not be limited to labor relations. The Board held that the Director of Health Services was involved in "the development of the particular objectives of a government or agency thereof in the fulfillment of its mission and the method, means, and extent of achieving such objectives." Based on the fact that FIT had adopted a policy of providing an environment that promotes and fosters student growth, maturation and self-development through comprehensive student support services programs and activities and had designated the services and programs offered by the Department of Health Service as part of its overall mission in promoting and fostering student growth and self-development, the Director was found to be managerial because of the exercise of independent judgment in determining the scope and nature of the service to be offered by the Department. The Director acts independently to devise and implement college-wide policy and given this level of authority, the Board found that the Director's placement in the college hierarchy and the fact that the Director is not a member of the President's cabinet were not dispositive. (E-2358, 9/25/07)

Go To:  Recent Board Representation Decision Summaries   Separator Bar    Archived Decision Summaries Index


Management / Confidential

NO ARCHIVED MANAGEMENT / CONFIDENTIAL BOARD Decision Summaries FOR 2007.

Go To:  Recent Board Management / Confidential Decision Summaries   Separator Bar    Archived Decision Summaries Index


Improper Practices

YONKERS POLICE ASSOCIATION AND CITY OF YONKERS. The Board found that the City violated §209a.1(d) of the Public Employees' Fair Employment Act (Act) when it unilaterally implemented an annual employee performance evaluation procedure for employees in the unit represented by the Association. The Board rejected the City's argument that the Association had waived its right to negotiate employee performance evaluations, finding that the management rights clause in the parties' collective bargaining agreement did not evidence a waiver of the Association's right to negotiate any mandatory subjects because the language was too broad. The management rights clause gave the City the right to make rules, regulations and policies concerning personnel practices and procedures, subject to the Association's right to consult and confer. The Board held that while a reference to personnel practices and procedures might generally be said to cover evaluation procedures, it is not such specific language as could be found to be a clear, unmistakable and unambiguous waiver of the right to negotiate any topic that might generally fall within that broad phrase. The Board further found that the evidence of other employee evaluations that occurred in the past was insufficient to establish a past practice of evaluating employees that would allow the City to unilaterally implement an annual employee performance evaluation procedure by which all unit employees would be subject to evaluation. (U25381, 5/2/07)

LOCAL UNION 1969, CIVIL SERVICE EMPLOYEES, IUPAT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND LOCAL 891, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO. The Board affirmed, in part, and reversed, in part, the decision of the Administrative Law Judge (ALJ) which found that the Union had not exclusively performed painting work and dismissed that allegation, but found that the District had violated §209a.1(d) of the Act by refusing the Union's demands to negotiate the transfer of unit work and provide information. The Board reiterated that in determining whether the work inissue in a transfer of unit work case is exclusive unit work, the charging party must establish a discernible boundary around the claimed unit work which would appropriately set it apart from work done by nonunit personnel. The Union sought to establish a discernible boundary by arguing that the painting of newly renovated spaces as part of a Capital Task Force (CTF) project is different from repainting or maintaining existing facilities. The Board rejected the Union's definition of unit work based upon the funding for the CTF projects, the type of paint used or the reasons the surface needs to be painted, finding that those factors do not have any reasonable relationship to the painting duties performed by unit members as part of a CTF project so as to establish a discernible boundary. The Board further found that the District did not violate §209a.1(d) of the Act when it refused the Union's demand to bargain the transfer of unit work because the work the Union was claiming a right to negotiate was not exclusive bargaining unit work, and so, reversed that part of the ALJ's decision. Finally, the Board found that the District violated the Act when it refused the Union's demand for information to be used to bargain the issue of unit work, rejecting the District's argument that because it did not have an obligation to bargain the transfer of the work claimed by the Union, it had no obligation to provide information to the Union to bargain the issue. (U25506, 5/2/06)

MOHAMMAD SAIDIN AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board dismissed Saidin's improper practice charge filed against the Federation, alleging that the Federation violated §209a.2(c) of the Act when it refused to process his grievance to Step 3 of the contractual grievance procedure between the Federation and District. The Board found that at best Saidin established that he disagreed with the Federation's refusal to process his grievance to a Step 3 hearing, but that disagreement with the bargaining agent's decision is insufficient to establish a breach of the duty of fair representation. While the Board denied the Federation's request to sanction Saidin for filing numerous, meritless improper practice charges, it did caution him about his disregard of the Rules in that he continues to file additional pleadings where he has not been directed to do so by the Board and has not sought the Board's permission. (U26672, 5/2/07)

PROFESSIONAL STAFF CONGRESS/CUNY AND CITY UNIVERSITY OF NEW YORK. The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing PSC's improper practice charge which alleged that CUNY violated §209a.1(a) of the Act when it "adopted and implemented" a written Employment Discrimination Complaint Procedure. The Board found that the charge, filed four years after the adoption of the Procedure, was untimely, rejecting PSC's argument that CUNY's maintenance of the procedure, even if never utilized, was a "continuing violation". The Board reiterated that it has declined to apply a theory of "continuing violation" in its improper practice proceedings and that the private sector cases cited by PSC did not support PSC's argument. (U26954, 5/2/07)

ORANGETOWN POLICEMEN’S BENEVOLENT ASSOCIATION AND TOWN OF ORANGETOWN. The Board affirmed the decision of the Administrative Law Judge (ALJ) finding a violation of §209-a.1(d) of the Act when the Town informed police officers and the PBA that they had no right to video or audio tape medical examinations conducted to determine eligibility for benefits for line-of-duty injuries under General Municipal Law (GML) §207-c. The Board concluded that the video or audio taping of the medical examination under GML §207-c is a mandatory subject of negotiation not only because it is a procedure for accumulating evidence to be utilized by the PBA and employee in the review of the initial determination, but also because such a procedure for making the initial determination is not precluded from negotiations by the specific statutory language of GML §207-c. (U-25717, 6/27/07)

JOHNSON CITY POLICE ASSOCIATION AND VILLAGE OF JOHNSON CITY. The Board reversed the ALJ’s decision and remanded the case to develop a fuller record on whether the “off the record” condition placed by the Association on its drug-testing proposal was accepted by the Village and/or whether the treatment of the proposal by the parties was consistent with the Association’s condition, so as to preclude the Village from including its counter-proposal to the Association’s “off-the-record” proposal in its response to the Association’s petition for interest arbitration. The Board also remanded the case to the ALJ for a determination as to whether the Village’s proposal was too vague and indefinite to be mandatorily negotiable. (U-26316, 6/27/07)

CHENANGO FORKS TEACHERS ASSOCIATION, NYSUT, AFT, AFL-CIO, LOCAL 2561 AND CHENANGO FORKS CENTRAL SCHOOL DISTRICT. The Board reversed the decision of the ALJ and remanded the case to take additional evidence. The Board found that there was a past practice of the District reimbursing current and retired employees age 65 or older, and their spouses, for the cost of Medicare Part B health insurance premiums and that the District had discontinued the practice. In County of Nassau, 24 PERB ¶3029 (1991), the Board noted, it had enunciated its most authoritative statement regarding the applicable test for the establishment of a binding past practice: the practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected unit employees that the practice would continue. However, based upon the parties’ stipulated record, the Board was unable to determine to what extent, if any, the Association and/or current employees had actual or constructive knowledge of the benefit and, therefore, had a “reasonable expectation” that the practice would be continued. The Board therefore remanded the case to the ALJ to take further evidence regarding whether the Association and/or current employees had actual or constructive knowledge of the benefit and for the issuance of a decision based upon that additional evidence, if any. (U-24520, 7/25/07)

MONROE POLICE BENEVOLENT ASSOCIATION, INC. AND VILLAGE OF MONROE. The Board reversed and remanded the decision of the ALJ which deferred the PBA’s improper practice charge alleging that the Village violated §§209-a.1(a) and (d) of the Act when it directed an employee in the PBA bargaining unit to execute a medical confidentiality waiver form, different from the form agreed upon in the parties’ collectively negotiated agreement, as a condition to his continued receipt of benefits under GML §207-c. The PBA alleged that the Village had repudiated the collective bargaining agreement by acting without a “colorable” claim of contract right. The Board pointed out that its decisions determining whether a repudiation of the parties’ collective bargaining agreement has occurred have not required a colorable claim of contract right, but only that the respondent has raised an arguable defense to the allegation that it has disavowed a collectively negotiated agreement or a specific provision thereof. But the Board rejected the Village’s claim that its action was required by HIPAA regulations and remanded the case to the ALJ to decide the merits of the charge and examine the broader questions of whether the new medical release form is negotiable under GML §207-c and to what extent HIPAA’s regulations preempt the negotiability of medical confidentiality waiver forms subject to HIPAA. (U-26964, 7/25/07)

KINGSTON POLICE BENEVOLENT ASSOCIATION, INC. AND CITY OF KINGSTON. The Board affirmed the decision of the ALJ finding that the City violated §209-a.1(d) of the Act when it unilaterally discontinued a past practice of defraying the costs of police officers for veterinary services and food for specially trained police canines in their care after the canines have been taken out of service. The Board found that the provision by the City of the veterinary care and food for out-of-service dogs is an economic benefit and thus a form of compensation for unit employees, which makes it a mandatory subject of negotiation, whether or not it has a direct relationship to any aspect of job performance. Finding that the practice had been in effect for a decade, was authorized by the former Chief of Police and paid for out of the Police Department’s budget, the Board rejected the City’s arguments that there was no cognizable practice. (U-26553, 8/29/07)

NEW YORK STATE THRUWAY EMPLOYEES, TEAMSTERS LOCAL 72 AND NEW YORK STATE THRUWAY AUTHORITY. The Board affirmed the decision of the Director dismissing the improper practice charge filed by the Teamsters as being untimely pursuant to §204.1(a)(1) of the PERB’s Rules of Procedure. The Board found that, in determining the commencement of the four-month filing period for an improper practice charge alleging a §209.1-a (d) violation, it looked to when the employee organization had actual or constructive knowledge of the act or acts that form the basis for the charge. Finding that the Teamsters, by its own admission, had such knowledge over four months prior to filing the charge that pothole filling was being assigned to nonunit employees and that there was no claim that the pothole filling was performed by the contractors in secret, the Board found the charge was untimely. The Board also rejected the Teamsters’ argument that the time to file the charge had been “tolled” by the parties’ agreement. (U-27510, 8/29/07)

POLICE BENEVOLENT ASSOCIATION OF WAPPINGERS FALLS AND VILLAGE OF WAPPINGERS FALLS. The Board affirmed the decision of the ALJ dismissing an improper practice charge filed by the PBA against the Village alleging that the Village had violated §209-a.1(d) when it included its General Municipal Law (GML) §207-c proposal as part of its response to the PBA's petition for interest arbitration. The PBA argued that the inclusion of the proposal that had been introduced for the first time during mediation violates the Act because it is not a proposal that was "negotiated" prior to interest arbitration. The Board held that mediation constitutes a continuation of negotiations between the parties, albeit with an appointed third party present to aid the parties in reaching a voluntary agreement pursuant to §209.4(a)(1) of the Act. The Board did caution, however, that the submission of a proposal to interest arbitration that is presented for the first time at mediation and is not reasonably related to the subject matter of the negotiations and/or the discussions during mediation may, under the totality of the circumstances, be a violation pursuant to §205.6(a)(2) of the Rules. Finding that the subject matter of the Village's proposal is reasonably related to the PBA's original GML §207-c proposal that had been discussed at negotiations, the Board dismissed the charge. (U-26540, 9/25/07)

TRANSPORT WORKERS UNION, LOCAL 106, TRANSIT SUPERVISORS ORGANIZATION AND MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY. The Board reversed, in part, and affirmed, in part, the decision of the ALJ on an improper practice charge filed by the TSO alleging that MABSTOA had violated §209-a.1(d) of the Act by unilaterally assigning a bargaining unit member to perform security camera work beyond the inherent scope of his job duties and at locations within the New York City subway system under the jurisdiction of the New York City Transit Authority (NYCTA). The ALJ had dismissed the charge finding that it was barred by res judicata based upon on an initial review dismissal by the Director of an earlier improper practice charge filed by TSO. The present charge corrected the deficiency in the earlier charge and it was processed by the Director. After the hearing the ALJ found that although the present charge was timely filed, it was barred by res judicata . The Board reversed, finding that the Director's summary dismissal of TSO's earlier amended charge, consistent with §204.2(a) of the Rules, constituted a decision on the sufficiency of the pleading and not the merits of the timeliness issue. The application of res judicata was inappropriate, the Board found, because the present charge included an additional allegation that corrected the pleading deficiency found by the Director in the earlier charge. The Board noted that courts will grant preclusive effect to the dismissal of a prior lawsuit based on the insufficiency of the pleaded allegations only if the new complaint "fails to correct the defect or supply the omission determined to exist in the earlier complaint." However, the Board did affirm the ALJ's dismissal of the charge on the merits, concurring that MABSTOA did not have a duty to bargain the at-issue assignment under the Act. In general, the location(s) where an employer assigns an employee to perform his or her work duties is a nonmandatory subject of bargaining. The mere act of assigning an employee to perform duties at another employer's work location does not alter the employer-employee relationship. (U-26595, 11/5/07)

SUFFOLK COUNTY CORRECTION OFFICERS ASSOCIATION AND COUNTY OF SUFFOLK AND SUFFOLK COUNTY SHERIFF. The Board reversed the decision of the ALJ, finding that the County violated §209a.1(d) of the Act by submitting a sick leave demand, that included a Sick Leave Management Program (SLMP) proposal, in its petition for compulsory interest arbitration. Finding that §209.4(h) of the Act excludes from interest arbitration between these parties any proposal relating to disciplinary procedures and investigations, the Board found that the County's demand, which would impose administrative sanctions for sick leave abuse, was more disciplinary in nature than related to sick leave. By including penalties impacting terms and conditions of employment for the mere use of sick leave, the Board found, the SLMP proposal transforms sick leave use into a form of misconduct. Because the SLMP proposes to impose penalties for the use of sick leave, it relates to disciplinary procedures and is, therefore, excluded from interest arbitration under §209.4 (h) of the Act. (U-27238, 11/05/07)

VILLAGE OF TARRYTOWN AND TARRYTOWN PATROLMEN'S BENEVOLENT ASSOCIATION, INC. The Board affirmed, in part, and reversed, in part, the decision of the ALJ finding that the PBA's proposal, submitted to interest arbitration, for a "Bill of Rights" proposing the establishment of certain guidelines for the Village's conduct of interrogations of PBA members during official investigations that may lead to any form of charges, was a prohibited subject of negotiations. The Board found that the Special Provisions for Village Police Departments Law (VPDL), enacted by the Legislature in 1972, was a recodification of 1939 Village Law provisions which committed executive power and authority relating to police discipline to a village board of trustees or municipal board. Based on the holding by the Court of Appeals, in Patrolmen's Benevolent Association of the City of New York Inc. v New York State Public Employment Relations Board, 6 NY3d 563, 39 PERB 7006 (2006) (NYCPBA), that when a special state law, that pre-existed Civil Service Law §§75 and 76, specifically commits the discipline of police officers to local government officials, New York's public policy favoring strong disciplinary authority over police officers outweighs New York's "strong and sweeping policy" supporting collective negotiations under the Act, the Board found that the PBA's proposal was prohibited. The Board rejected as overbroad the ALJ's finding that the Court, in NYCPBA, had held that the duty to negotiate discipline under the Act was preempted by any pre-existing local law, finding instead that only special state legislation, enacted prior to CSL §§75 and 76, granting specific local officials the power and authority over police discipline, can preempt police discipline negotiations. The Board, therefore, ordered the PBA to withdraw the proposal from arbitration. (U-27234, 12/14/07)

Go To:  Recent Board Improper Practices Decision Summaries   Separator Bar    Archived Decision Summaries Index

Declaratory Rulings

THE CITY OF NEW YORK. The Board considered the motions of four employee organizations to appear as amici curiae in a declaratory ruling case before the Board on exceptions filed by the Police Benevolent Association of the City of New York, Inc. and the City of New York to a decision of an ALJ finding that two of the PBA’s demands were properly submitted to interest arbitration and five were not properly submitted. The Board then granted the separate motions by the Lieutenants Benevolent Association, the New York State Union of Police Associations, the Captains Endowment Association, Inc. and the Suffolk County Police Conference for leave to file amicus briefs on the condition that such briefs identify applicable law or arguments that might otherwise escape the Board’s consideration and state how those arguments are relevant to the Board’s disposition of the exceptions. (DR-119, 6/6/07)
     Thereafter, the Board affirmed, in part, and reversed, in part, the decision of the ALJ, finding that the PBA’s proposals on bullet-resistant vests, work schedule, safety and health maintenance and premium pay for the lack of negotiable disciplinary procedures are mandatory subjects of negotiations. The Board found that the PBA’s other demands: attainment of safe staffing levels, chronic sick program and contract maintenance, are not mandatory subjects of negotiation and were not properly submitted to interest arbitration.
     Significantly, the Board rejected the PBA’s argument that under the rationale articulated in City of Cohoes, 31 PERB ¶3020 (1998), confirmed sub nom., 32 PERB ¶7026 (Sup Ct Albany County), affd, Uniform Firefighters of Cohoes, Local 2562 v Cuevas, 276 AD2d 184, 33 PERB ¶7019 (3d Dept 2000), lv denied 96 NY2d 711, 34 PERB ¶7018 (2001) (hereafter, Cohoes), the presence of a mandatory subject in a collectively negotiated agreement transforms a nonmandatory proposal seeking to impose restrictions on a managerial prerogative into a mandatory subject because it is arguably related to the mandatory provision in the expired agreement. The Board was not persuaded that there is any rationale under the Act for the expansion of the Cohoes conversion theory that would transform nonmandatory subjects not already contained in an agreement into mandatory subjects. Unlike the negotiating disparity that the Board sought to remedy in Cohoes, no structural imbalance exists between the parties with respect to the negotiability of nonmandatory subjects outside of an agreement. Neither an employer nor an employee organization is obligated to negotiate such a subject and they are mutually impacted when a nonmandatory subject is incorporated into an agreement: it is converted, as a matter of law, into a mandatory subject in subsequent negotiations. (DR-119, 8/29/07)

PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing the petition for declaratory ruling filed by the PBA on the grounds that the requested declaratory ruling did not concern a justiciable dispute between the PBA and the City of New York regarding the negotiability of a bargaining demand made by either party pursuant to §210.1(a) of the Rules. In its petition, the PBA sought a declaration that a provision of a collectively negotiated agreement between the City and the Uniformed Firefighters Association of Greater New York, Local 94, IAFF, AFL-CIO constitutes an unlawful parity clause that will adversely impact the PBA's ability to participate in a pending interest arbitration with the City. The Board held that the PBA's petition did not seek a declaration regarding the negotiability of a demand between the PBA and the City. Instead, the Board found that the petition sought an interpretation of, and legal conclusion about, a contractual provision between the City and another employee organization; a ruling regarding an issue beyond the stated purposes for the declaratory ruling process under the Rules. (DR-121, 9/25/07)

Go To:  Recent Board Declaratory Rulings Decision Summaries   Separator Bar    Archived Decision Summaries Index

Strikes

NO ARCHIVED STRIKE BOARD Decision Summaries FOR 2007.

Go To:  Recent Board Strike Decision Summaries   Separator Bar    Archived Decision Summaries Index

Local Procedures

NO ARCHIVED LOCAL PROCEDURES BOARD Decision Summaries FOR 2007.

Go To:  Recent Board Local Procedures Decision Summaries   Separator Bar    Archived Decision Summaries Index

Other Matters

CITY OF NEW YORK AND PATROLMEN’S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. The Board affirmed, but modified, the decision of the Director of Conciliation relating to the petition for interest arbitration that had been filed by the City. The Board found that the Director had the delegated power and authority to issue decisions involving the dispute resolution procedures of the Act, including the panel selection process in interest arbitrations. The Board modified the Director’s decision by finding that the PBA’s objections to the inclusion of two arbitrators on the list compiled by the Director were not untimely, but the Board affirmed the Director’s dismissal of the PBA’s objections to the two names, finding that the individuals were “disinterested” and qualified to be included on the list. The parties were ordered to complete the name-striking process. (IA06-024, 6/27/07)

Go To:  Recent Board Other Matters   Separator Bar    Archived Decision Summaries Index




Decision Summaries of the Office of Public Employment Practices and Representation


Representation

SPECIAL INSPECTORS BENEVOLENT ASSOCIATION AND NEW YORK CITY TRANSIT AUTHORITY AND MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY AND UNITED FEDERATION OF LAW ENFORCEMENT OFFICERS. The Director of Public Employment Practices and Representation (Director) dismissed the petition because it did not meet several procedural requirements set forth in the Rules. (Director Klein, C5674, 1/23/07)

NEW YORK STATE PAROLE OFFICERS BENEVOLENT ASSOCIATION AND STATE OF NEW YORK (DIVISION OF PAROLE) AND PUBLIC EMPLOYEES FEDERATION, AFL-CIO. The Administrative Law Judge (ALJ) held that parole officers are not sufficiently engaged in criminal law enforcement to warrant their fragmentation from an otherwise civilian bargaining unit. The ALJ emphasized that the mission of the Division of Parole and the duties of the parole officers to fulfill that mission concern assisting parolees in reintegrating into community life while serving the balance of their sentences. The ALJ further observed that the behavior that parole officers regulate are set forth in administrative rules and regulations that parolees voluntarily agree to follow as conditions of their release from prison. Noting that parole officers are authorized, and occasionally required, to make criminal arrests, the ALJ held that such criminal law enforcement was incidental to the parole officers’ status as peace officers under the Criminal Procedure Law, but not a primary characteristic of their responsibilities as parole officers. (ALJ Quinn, C5441, 2/12/07)

PUBLIC EMPLOYEES FEDERATION AND STATE OF NEW YORK. The Director designated numerous positions as managerial and placed numerous other positions into the bargaining unit; all by agreement of the parties. (Director Klein, C-4808, C-5242, 6/20/07)

UNITED TEACHERS OF NORTHPORT AND NORTHPORT-EAST NORTHPORT UNION FREE SCHOOL DISTRICT. The petition, seeking the placement of the title of Teaching Assistant in the teachers/certified personnel unit represented by the petitioner, was granted on consent of the District. (ALJ Blassman, CP-1085, 6/19/07)

PUBLIC EMPLOYEES FEDERATION AND STATE OF NEW YORK. The Director designated numerous positions as managerial and placed numerous other positions into the bargaining unit; all by agreement of the parties. (Director Klein, CP-557, CP-588, CP-621, CP-667, CP-695, CP-728, CP-759, CP-791, CP-833, CP-862, CP-893, CP-924, CP-956, CP-980 & CP-1010, 6/20/07)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 2574, ALLEGANY COUNTY EMPLOYEES UNION AND COUNTY OF ALLEGANY. A unit clarification petition, seeking a ruling that a contract employee performing duties formerly performed by a unit employee is included in the AFSCME unit was dismissed by the ALJ. The individual at issue is an employee of Cornell Cooperative Extension (CCE), a private employer, in a CCE title, not an employee of the County. Therefore she was found not to be in a title represented by AFSCME. (ALJ Fitzgerald,CP-1058, 08/30/07)

COUNTY OF WASHINGTON. The United Public Service Employees Union filed a petition seeking decertification of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO and its certification as the representative of a unit of certain employees of the County of Washington. A secret mail ballot election was held. Due to seven challenged ballots, no organization achieved majority status at the ballot count. The challenge to the unsigned ballots was sustained by the Director, voiding those ballots. The final tally of ballots established that the majority of the valid votes counted were cast for CSEA. (Director Klein, C-5727, 9/12/07)

VILLAGE OF RYE BROOK. Local 456, International Brotherhood of Teamsters filed a petition seeking to represent a unit of unrepresented employees of the Village of Rye Brook. The Village objected to the inclusion in the proposed unit of the Communication Services Coordinator, the employee responsible for the computer system, the cable television bulletin board and the Village's website, as managerial or confidential. Following a hearing, the ALJ found that the Communication Services Coordinator was neither managerial nor confidential and was not, therefore, excluded from representation under the Act. The title was included in the unit found to be the most appropriate. An election will be held unless evidence is submitted to satisfy the requirements for certification without an election. (ALJ Burritt, C-5621, 9/27/07)

STATE OF NEW YORK. The Director placed positions in PEF's Professional, Scientific and Technical Services Unit pursuant to the agreement of the parties. (Director Klein, C-5242, 11/29/07)

COUNTY OF ONONDAGA. The ALJ dismissed a petition to fragment corrections officers from a county-wide bargaining unit. He rejected petitioner's argument that corrections officers are engaged in law enforcement activities necessitating their removal from the essentially civilian bargaining unit and that the corrections officers have a unique community of interest that requires the fragmentation. He also rejected petitioner's argument that corrections officers have not been adequately represented by the incumbent employee organization. (ALJ Quinn, C-5573, 12/20/07)

ARKPORT CENTRAL SCHOOL DISTRICT. A petition for unit placement of the title Registered Professional Nurse into the unit represented by the Arkport Faculty Association was granted by the ALJ, on the basis of the common professional interest among the title and those represented by the Association, and the lack of any objection to the petition by the District. (ALJ Fitzgerald, CP-1109, 9/6/07)

BATAVIA CITY SCHOOL DISTRICT. The Association's unit placement petition was granted on a finding that the newly created titles, Personnel Clerk and Treasurer/ Purchasing Agent, shared a general community of interest with employees in the unit. The District's assertion that the incumbents in the positions sought to be accreted are confidential failed upon a finding that, although the Personnel Clerk was exposed to information of a confidential nature, she did not serve in a position of trust and confidence vis-ŕ-vis a §201.7 (a)(ii) manager. Further, the Treasurer/Purchasing Agent was found to have met neither of the two prongs of the Town of Dewitt test, 32 PERB 3001 (1999). She did not assist a §201.7 (a)(ii) manager with information of a confidential nature and she did not assist in a confidential capacity. (ALJ Doerr, CP-1056, 11/26/07)

Go To:  Recent Board Representation Decision Summaries   Separator Bar    Archived Decision Summaries Index


Management / Confidential

PATCHOGUE-MEDFORD SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. Where a senior accountant had a confidential relationship to a managerial employee in his performance of managerial responsibilities, a confidential designation was warranted. (ALJ Cacavas, E2417, 2/16/07)

GARDEN CITY UNION FREE SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. Where a typist clerk had a confidential relationship to a managerial employee in her performance of managerial responsibilities, a confidential designation was warranted. (ALJ Cacavas, E2419, 2/27/07)

INCORPORATED VILLAGE OF FLORAL PARK. Where duties include the exercise of independent judgment in connection with the formulation of policy and/or direct involvement in the collective negotiation process and/or the administration of agreements and/or personnel administration, managerial designations are warranted. In addition, where secretaries and a research assistant have a confidential relationship to managerial employees in the performance of their managerial responsibilities, confidential designations are warranted. (ALJ Cacavas, E2413, 4/4/07)

SOUTH COUNTRY CENTRAL SCHOOL DISTRICT. Where Debra Ford, the Network and Systems Specialist, had a confidential relationship to a managerial employee in his performance of managerial responsibilities, a confidential designation was warranted. (ALJ Cacavas, E2428, 4/13/07)

COMMACK UNION FREE SCHOOL DISTRICT. Where Louise Sansone, the Secretary to the Assistant Superintendent for Pupil Personnel Services, had a confidential relationship to a managerial employee in his performance of managerial responsibilities, a confidential designation was warranted. (ALJ Cacavas, E2427, 4/13/07)

SKANEATELES CENTRAL SCHOOL DISTRICT. The ALJ designated Philip Serrano, Network Administrator, as confidential, noting that the employee organization that represents the title consented to the designation and that the factual averments in the application may support it. (ALJ Quinn, E2432, 4/24/07)

SHENENDEHOWA SCHOOL DISTRICT. Where Jessica McCarthy, a School Secretary, had confidential relationship to a managerial employee in her performance of managerial responsibilities, confidential designation was warranted. (ALJ Burritt, E2431, 5/29/07)

UNITED FEDERATION OF POLICE OFFICERS, INC., AND STATE OF NEW YORK (DEPARTMENT OF ENVIRONMENTAL CONSERVATION). Employees in the title of Environmental Conservation Investigator IV, employed within the State of New York (Department of Environmental Conservation), were found not to be either managerial or confidential and, therefore, eligible for representation under the Act. The appropriate unit placement for said title will be the subject of the further processing of the case. (ALJ Comenzo, C-5337, 7/19/07)

STATE OF NEW YORK. The Director placed numerous positions in, and deemed others not appropriate for, inclusion in the bargaining unit while also designating other positions as managerial. (Director Klein, E-2280, 8/25/06)

FASHION INSTITUTE OF TECHNOLOGY. FIT filed an application seeking to designate Bonnie Born, Benefits Manager; Lourdes Rodriguez, Salary and Certification Manager, and the position of Health Services Director as either managerial or confidential pursuant to the Act. The positions were in a unit represented by the United College Employees of Fashion. The ALJ found that Born and Rodriguez were appropriately designated confidential, but not managerial. The ALJ further found no impediment to the managerial designation of the position of Health Services Director due to its vacancy, since an Acting Health Services Director had been performing the duties of the position and FIT had advised that it was planning to permanently fill the position. However, the ALJ dismissed the application as to the position of Health Services Director, on the ground that the duties of the position did not satisfy the requirements for designation as either managerial or confidential. The ALJ rejected FIT’s argument that the position should be designated as a managerial policy formulator since FIT had delegated to that position the authority to formulate FIT’s health policy. The ALJ found that the formulation of health policy did not constitute a major area of FIT’s mission. (ALJ Blassman, E.2358, 7/2/07).

AMHERST CENTRAL SCHOOL DISTRICT. Maureen Wheeler, Payroll/Personnel Clerk; Donette Burkardt, Payroll/Personnel Clerk; and Brenda Klepser, Secretary to Deputy Superintendent, were designated as confidential in accordance with the criteria set forth in §201.7(a) of the Act. (ALJ Marchant, E-2435, 7/2/07)

CHURCHVILLE-CHILI CENTRAL SCHOOL DISTRICT. The District’s application to designate Joyce Yacano, Secretary to the Director of Human Resources, and Laurie Jackson, Benefits Clerk, as confidential was granted where the bargaining representative, the Churchville-Chili Professional Association, NYSUT, AFT, NEA, AFL-CIO consented to the designation, and the factual averments in the application supported such designations. (ALJ Doerr , E-2414, 8/1/07)

KEENE CENTRAL SCHOOL DISTRICT. Where a school secretary, Susan Whitney, and treasurer, Brenda LeClair, each had a confidential relationship to the Superintendent of Schools – a managerial employee – in the performance of managerial responsibilities, a confidential designation was warranted. (ALJ Carlson, E-2434, 8/3/07)

AUBURN ENLARGED CITY SCHOOL DISTRICT. Mary Lou Petruzzi, Typist-District Office, was designated as confidential in accordance with the criteria set forth in §201.7(a) of the Act. (ALJ Marchant, E-2422, 8/22/07)

RAVENA-COEYMANS-SELKIRK CENTRAL SCHOOL DISTRICT. The District's application to designate the Senior Keyboard Specialist as confidential was granted where the bargaining representative, the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, for the Ravena-Coeymans-Selkirk Central School District Unit of Albany County Local 801 consented to the designation, and the factual averments in the application may support such a designation. (ALJ Comenzo, E-2430, 9/5/07)

CHATHAM CENTRAL SCHOOL DISTRICT. The District's application to designate the Secretary I to the Superintendent of Schools and the Secretary I to the School Business Administrator as confidential was granted where the parties consented to the designations and the factual averments in the application supported such designations. (ALJ Wlasuk, E-2442, 11/6/07) CITY OF ELMIRA. The ALJ dismissed an application to designate a fire marshal and assistant fire marshal as managerial or confidential, finding that the fire marshal's involvement in labor relations is supervisory and, therefore, that neither he nor the assistant could be designated as managerial or confidential. He further found that the fire marshal's involvement in policymaking is fundamentally technical and, therefore, his designation as managerial was unwarranted on that basis.

CITY OF ELMIRA. The ALJ dismissed an application to designate a fire marshal and assistant fire marshal as managerial or confidential, finding that the fire marshal's involvement in labor relations is supervisory and, therefore, that neither he nor the assistant could be designated as managerial or confidential. He further found that the fire marshal's involvement in policymaking is fundamentally technical and, therefore, his designation as managerial was unwarranted on that basis. (ALJ Quinn, E-2409, 12/7/07)

Go To:  Recent Board Management / Confidential Decision Summaries   Separator Bar    Archived Decision Summaries Index

Improper Practices

RYE POLICE ASSOCIATION OF THE CITY OF RYE, INC. AND CITY OF RYE. The ALJ deferred a charge which, as amended, alleged that the City violated the Act by unilaterally implementing policies relating to cellular phone use, electromuscular disruption (Taser) devices, and a mobile video recording system, and by failing to bargain the impact of these policies. The parties agreed to defer the charge relating to impact bargaining to the grievance procedure, and the balance of the charge was withdrawn by the Association. (ALJ Maier, U26594, 1/3/07)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, DONNA GREEN, PATRICIA McNEILL, MYNITA ATKINSON, J. BARRINGTON JACKSON, GERALDINE BARROWS AND INCORPORATED VILLAGE OF HEMPSTEAD. The ALJ found that the Village violated the Act by repudiating an agreement entered into by a former Mayor, which was thereafter rescinded by the Village Board of Trustees, and the rescission executed by the successor Mayor. The charges were dismissed to the extent that they alleged that the Village violated the Act by discharging employees due to their protected activity, since none of the parties addressed this allegation in their briefs. The ALJ rejected the Village’s defense that the agreement was not ratified by the Board of Trustees, since the right of ratification belongs to the executive, not the legislative, branch. The Village’s defense that the Board of Trustees never gave legislative approval to the agreement was an issue which was beyond this Board’s jurisdiction. (ALJ Maier, U26139; U25994, U26192; U26193; U25995, 1/3/07)

INTERNATIONAL LONGSHOREMEN ’S ASSOCIATION, LOCAL 1949 AND NIAGARA FRONTIER TRANSPORTATION AUTHORITY. The charge was deferred to the parties’ contractual grievance procedure as the Association has filed grievances on the same facts as pled in the charge. (ALJ Doerr, U27207, 1/22/07)

GEORGE CARR AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., UNIT 9200. The Director dismissed the charge as amended because it was unsworn and failed to allege facts sufficient to establish the union’s conduct as arbitrary, discriminatory or in bad faith. (Director Klein, U27258, 1/11/07)

STACY BRAY AND AMALGAMATED TRANSIT UNION, LOCAL 1056, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. Where the charging party’s case for breach of the duty of fair representation was based upon her “belief” that the Union could have handled her case better, and its failure to provide an opportunity to review the posthearing brief before its submission, the charge was dismissed. In addition, where no evidence was presented to establish that multiple settlement offers were made by the Employer, the claim that the Union breached its duty by failing to convey “better” settlement options to the Charging Party was dismissed. Only upon a showing of conduct which is arbitrary, discriminatory, or in bad faith will a duty of fair representation breach be found. (ALJ Cacavas, U26175, 1/29/07)

CHARLES ROBERTS AND STATE OF NEW YORK (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES – WESTERN NEW YORK DDSO) AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. Roberts’ charge alleging that CSEA violated its duty of fair representation by refusing to process his grievances, and that OMRDD similarly refused to process his grievances in violation of the Act, were dismissed following an offer of proof. No facts were presented which could arguably establish that CSEA handled his grievance in a discriminatory, arbitrary or bad faith manner. Neither were facts presented to establish that OMRDD’s handling of his grievances was retaliatory or discriminatory. (ALJ Fitzgerald, U26409, 2/9/07)

DANIA HALL AND NORTH BELLMORE TEACHERS ASSOCIATION AND NORTH BELLMORE UNION FREE SCHOOL DISTRICT. The charge, alleging that the Association violated §209a.2(c) of the Act when it refused to prosecute Hall’s grievance to the third step of the contractual grievance procedure, was dismissed. The ALJ found that the charge was untimely, since the record established that the Association’s President had told Hall on May 25, 2005, that the Association would not take her grievance further and the charge was filed more than four months thereafter. The ALJ further found that, if she were to reach the merits of the charge, she would dismiss it for failure to establish that the Association had acted arbitrarily, discriminatorily or in bad faith, since the record demonstrated that the Association’s President had determined not to proceed further with Hall’s grievance based upon her good faith belief that it lacked merit. (ALJ Blassman, U26335, 2/9/07)

JOHNSON CITY POLICE ASSOCIATION AND VILLAGE OF JOHNSON CITY. The ALJ found that the employer bargained in bad faith by submitting a proposal for consideration at compulsory interest arbitration that had not been the subject of prior negotiations. Notably, the ALJ found that all exchanges concerning the at issue proposal were “off the record,” and, therefore, not evidence of negotiations cognizable under the Act. (ALJ Quinn, U26316, 2/9/07)

NCCC TECHNICAL SUPPORT PERSONNEL ASSOCIATION, NEA/NY, NEA AND NIAGARA COUNTY COMMUNITY COLLEGE. The charge was deferred to the parties’ contractual grievance procedure as the Association has filed several grievances on the same facts as pled in the charge. (ALJ Marchant, U25866, 2/13/07)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 815 AND COUNTY OF ERIE. CSEA alleged that the County transferred the work of Park Superintendent to AFSCME unit members in the titles Park Maintenance Workers I, II, and III. The record evidence, however, supported the finding that no transfer had in fact taken place. (ALJ Doerr, U26024, 2/13/07)

MONROE POLICE BENEVOLENT ASSOCIATION, INC. AND VILLAGE OF MONROE. The ALJ deferred an improper practice charge for a jurisdictional determination, rejecting the charging party’s theory that PERB should retain jurisdiction because the contract was “repudiated.” According to the ALJ, the employer had a colorable claim of right to do that which it did. According to the ALJ, that the employer may be wrong goes to the merits of its defense in arbitration, but it does not confer jurisdiction on PERB to enforce the agreement. Further, the ALJ rejected the charging party’s claim that the conduct constituted an interference with employees’ rights under §202 of the Act. (ALJ Quinn, U26864, 2/13/07).

PITTSFORD CENTRAL SCHOOL BUS DRIVERS’ AND ATTENDANTS’ ASSOCIATION, NYSUT AFT, AFL-CIO AND PITTSFORD CENTRAL SCHOOL DISTRICT. The Association’s charge that the District violated §209a.1(d) of the Act when it replaced the Association sponsored profitmaking coffee club, which operated out of the break room with vending machines, was dismissed. The coffee club constituted an Association activity on District property wholly unrelated to its representational rights and obligations under the Act and was, therefore, not a term and condition of employment. (ALJ Doerr, U26355, 2/27/07)

STEPHANIE ALSQQAF AND AMALGAMATED TRANSIT UNION, LOCAL 1342, AND NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC. The improper practice charge filed against the Amalgamated Transit Union, Local 1342 (ATU) alleging that it violated the Act in the manner in which it handled a grievance regarding the charging party’s termination was dismissed, there being no evidence that the ATU’s conduct was arbitrary, discriminatory or in bad faith. (ALJ Fitzgerald, U26319, 2/27/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND SEAFORD UNION FREE SCHOOL DISTRICT. The ALJ dismissed a charge which alleged a violation of the Act due to the District’s transfer of the work of receiving and responding to alarm calls from the charging party’s unit to that of the intervenor, Civil Service Employees Association, Local 1000, AFSCME, AFL-CIO (CSEA). The ALJ held that the work had not been exclusively performed and, therefore, it was not a violation of the Act to have employees in another unit do the work in question. (ALJ Maier, U26471, 3/7/07)

ADMINISTRATOR’S ASSOCATION OF ERIE COMMUNITY COLLEGE, UNITED AUTO WORKERS LOCAL 3300 AND COUNTY OF ERIE AND ERIE COUNTY COMMUNITY COLLEGE. The Director dismissed a charge alleging that the County of Erie and the Erie County Community College violated the Act when it declined to offer a retirement incentive. The Director found that PERB lacked jurisdiction over the charge inasmuch as the Association’s right to the retirement incentive was grounded in the parties’ collective bargaining agreement. (Director Klein, U27283, 3/14/07)

TOWN OF NEW CASTLE AND POLICE ASSOCIATION OF NEW CASTLE. The ALJ found that the union violated the Act when it sought to submit to interest arbitration a maintenance of benefits clause which may also have the effect of including nonmandatory subjects of bargaining. The ALJ permitted the amendment of a demand which the Association had challenged to clearly reflect that the Town's health insurance contribution proposal was not related to any other unit. Since health insurance is mandatory subject of bargaining the Association's charge was dismissed. (ALJ Maier, U26222 U26250, 4/5/07)

SULLIVAN COUNTY PATROLMAN'S BENEVOLENT ASSOCIATION, INC. AND COUNTY OF SULLIVAN AND SHERIFF OF SULLIVAN COUNTY. The ALJ found that the employer violated the Act by unilaterally implementing a system of recovering wages and benefits that it had allegedly overpaid to a unit employee. According to the ALJ, just as the method by which an employer pays earned wages and benefits to unit employees is mandatorily negotiable, so too is the method by which employees must repay money and benefits they owe to their employer. Moreover, the ALJ held that the payments made to the employee were not in excess of those she was due under the terms of the parties' expired collective bargaining agreement. Therefore, the ALJ found that the employer's deductions of said payments violated §§ 209a.1(d) and (e). Finally, the ALJ found that the employer's actions were not so arbitrary as to support the allegation that the conduct was in retaliation for the employee's exercise of protected rights. (ALJ Quinn, U26725, 4/5/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF COLUMBIA. The ALJ held that the employer did not violate the Act when it created and filled three part-time unit positions that, allegedly, perform the work of a recently vacated full-time position. According to the ALJ, the three part-time positions were materially different from the work of the full-time position. (ALJ Quinn, U26022, 4/5/07)

KINGSTON POLICE BENEVOLENT ASSOCIATION, INC. AND CITY OF KINGSTON. The ALJ found that the City violated the Act by unilaterally terminating its practice of paying for the routine veterinary care and food for police dogs that had been taken out of service and given to their handlers. (ALJ Quinn, U26553, 4/9/07)

VALLEY STREAM TEACHERS ASSOCIATION, LOCAL 1633 AND VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT. The ALJ deferred a charge to the parties' grievance and arbitration procedure which alleged a violation of the Act due to the failure of the District to engage in coalition bargaining. Since the parties' collective bargaining agreement provided an arguable source of right to the union, and the agreement was still in effect, the charge was deferred. (ALJ Maier, U27272, 4/10/07)

KELVIN HADEN AND UTICA CITY SCHOOL DISTRICT AND SEIU LOCAL 200. The Director dismissed a charge because it lacked supporting facts and the individual lacked standing. (Director Klein, U27442, 4/10/07)

BUFFALO CITY SCHOOL DISTRICT AND PROFESSIONAL, CLERICAL, TECHNICAL EMPLOYEES ASSOCIATION. The Director dismissed the charge inasmuch as an employer lacks standing to allege an interference with employees' rights by a union. (Director Klein, U27446, 4/10/07)

SHEILA A. SIMARD AND CHAMPLAIN VALLEY EDUCATIONAL SERVICES BOCES AND CLINTON/ ESSEX/WARREN/WASHINGTON BOCES, UNITED TEACHERS LOCAL 4807. The Director dismissed a charge because it was devoid of facts. (Director Klein, U27418, 4/10/07)

VILLAGE OF HIGHLAND FALLS AND HIGHLAND FALLS PATROLMEN 'S BENEVOLENT ASSOCIATION, INC. The ALJ held that arbitration concerning employees' entitlement to benefits under General Municipal Law §207c is not mandatorily negotiable, relying on Poughkeepsie Professional Firefighters Association v PERB, 6 NY3d 514, 39 PERB 7005 (2006). (ALJ Quinn, U26843 & U26844, 4/18/07)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, WASHINGTONVILLE CENTRAL SCHOOL DISTRICT UNIT #7914, ORANGE COUNTY LOCAL 836 AND WASHINGTONVILLE CENTRAL SCHOOL DISTRICT. The ALJ issued a meritsdeferral concerning a dispute over an alleged change in the method by which unit bus drivers select their runs, noting that the charging party had filed a grievance under the parties' expired collective bargaining agreement which provides binding arbitration. (ALJ Quinn, U27264, 4/23/07)

DERUYTER FACULTY ASSOCIATION, NYSUT, AFT, NEA AND DERUYTER CENTRAL SCHOOL DISTRICT. The ALJ issued a jurisdictional deferral concerning a dispute over the employer's assignment of mentors to new unit teachers, noting that the charging party argued that the employer's action breached the parties' current collective bargaining agreement. (ALJ Quinn, U27159, 4/23/07)

SIDNEY TEACHERS ASSOCIATION, NYSUT, AFT, AFL-CIO, LOCAL 2469 AND SIDNEY CENTRAL SCHOOL DISTRICT. The ALJ issued a jurisdictional deferral concerning a dispute over whether the employer unilaterally changed the source from which prescription drugs may be purchased and, concomitantly, increased the copay for said prescription drugs, noting that the charging party argued that it has a source of right under the parties' current collective bargaining agreement. (ALJ Quinn, U26929, 4/24/07)

POLICE BENEVOLENT ASSOCIATION OF WAPPINGERS FALLS AND VILLAGE OF WAPPINGERS FALLS. The ALJ dismissed an improper practice charge, finding that the employer did not violate the Act by submitting a proposal for consideration at compulsory interest arbitration that it first submitted as a counterproposal at mediation in response to the charging party's bargaining table proposal. Although the employer summarily rejected the charging party's proposal at the bargaining table, it was not improper for the employer to produce a counterproposal for the first time at mediation and thereafter at interest arbitration. While the ALJ rejected any notion that a party should be permitted to offer no compromises at the bargaining table and then submit numerous counterproposals for the first time at mediation, he found that the employer's conduct here did not constitute bad faith negotiations. (ALJ Quinn, U26450, 4/25/07)

GLENVILLE POLICE BENEVOLENT ASSOCIATION AND TOWN OF GLENVILLE. The ALJ deferred to the parties' grievance and arbitration procedure a charge which alleged a violation of the Act when the Town of Glenville changed the co-payment amount for medical office visits and instituted a new procedure for reimbursement of part of that co-payment. A grievance had been filed under the applicable grievance procedure. (ALJ Burritt, U27299, 5/4/07)

LORRINE HARVIN AND STATE OF NEW YORK AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the charge, as amended, as legally and factually insufficient inasmuch as it did not contain a clear and concise statement of the facts constituting the violation, individual employees lack standing to allege a failure to bargain, and there were no facts to arguably establish a breach of any of the enumerated subdivisions of the Act. (Director Klein, U27455, 5/14/07)

NEW YORK STATE THRUWAY EMPLOYEES, TEAMSTERS LOCAL 72 AND NEW YORK STATE THRUWAY AUTHORITY. The Director dismissed the charge as untimely inasmuch as the act complained of occurred more than four months prior to the filing of the charge and the parties cannot waive the period of limitations set forth in the Rules for the commencement of a charge. (Director Klein, U27510, 5/14/07)

CITY OF SYRACUSE AND SYRACUSE FIREFIGHTERS ASSOCIATION, LOCAL 280, IAFF, AFL-CIO. The City alleged that Local 280 violated §209a.2(b) of the Act by submitting nonmandatory items to interest arbitration. The City's charge was granted in part where Local 280 was ordered to withdraw a severable portion of a proposal that was nonmandatory in nature and sufficiently unrelated to the contract provision allegedly being altered so that it did not convert under Cohoes. Local 280 was also ordered to withdraw a proposal that was found to be unitary in nature. (ALJ Doerr, U27053, 5/14/07)

TRANSPORT WORKERS UNION, LOCAL 106, TRANSIT SUPERVISORS ORGANIZATION AND MANHATTAN & BRONX SURFACE TRANSIT OPERATING AUTHORITY. Where the Director issued a decision dismissing a charge as untimely, that constitutes a "final and binding" decision so as to bar a subsequent charge based on the same claims. On the merits, if the case were not barred, the employer did not violate the Act by assigning an employee to work at a location within the purview of a separate, but organizationally linked, employer where the duties assigned were within the inherent nature of the employee's position. Finally, a broad management's rights clause will constitute a waiver where the action challenged is specifically addressed therein. (ALJ Cacavas, U26595, 5/23/07)

POLICE BENEVOLENT ASSOCIATION OF ELMIRA, NEW YORK, INC. AND CITY OF ELMIRA. The ALJ deferred to the parties' grievance and arbitration procedure a charge alleging a violation of the Act when the City's Chief of Police issued an order requiring all personnel operating a department vehicle to pull off the road and stop before using a cell phone. A grievance had been filed under the applicable grievance procedure. (ALJ Burritt, U27515, 5/24/07)

NANCY MAGUIRE AND CORNWALL CENTRAL TEACHERS ASSOCIATION, VIC ESPOSITO AND CORNWALL CENTRAL TEACHERS ASSOCIATION, AND THOMAS PINDER AND CORNWALL CENTRAL TEACHERS ASSOCIATION. The Director dismissed the charges because they were devoid of facts. (Director Klein, U27386, U27387 & U27388, 5/25/07)

LAKE MOHEGAN FIRE DISTRICT AND LAKE MOHEGAN PROFESSIONAL FIRE FIGHTERS ASSOCIATION, LOCAL 2956, IAFF, AFL-CIO. The ALJ dismissed a charge which alleged that the District violated the Act when it unilaterally changed a safety policy by not dispatching a firefighter in a designated vehicle to certain Emergency Medical Service calls. The ALJ held that the change was within the District’s rights to set staffing levels and to deploy staff as it saw fit. Since the change was exercised in accordance with the District’s management prerogatives, the charge was dismissed. (ALJ Maier, U-26743, 6/27/07)

CITY OF ROCHESTER AND ROCHESTER POLICE LOCUST CLUB, INC. AND ROCHESTER POLICE LOCUST CLUB, INC. AND CITY OF ROCHESTER. The improper practice charge, alleging a violation of §209-a.2(b) of the Act by the submission of certain proposals for interest arbitration, was upheld in part. Demands seeking to incorporate minimum staffing language into articles addressing temporary assignments to investigator positions, and the scheduling of split shifts, were held nonmandatory since the demands would restrict the City’s managerial right to determine the level of staffing needed and the manner of deploying employees. Further, the demands were not converted to mandatory subjects under City of Cohoes, 31 PERB ¶3020 (1998) since, although they were drafted as amendments to expired contractual language, the proposal was not reasonably related to the subject matter of the section sought to be amended. Demands to eliminate language in the expired agreement addressing eligibility for overtime and scheduling were held mandatorily negotiable, both on the basis of the subject matter of the demand and under the conversion theory of Cohoes. A demand to incorporate language from a memorandum of agreement into the collective bargaining agreement was nonmandatory due to the failure of the union to submit a proposal on that matter until the filing of the demand for interest arbitration. (ALJ Fitzgerald,U-26870 & U-26921, 6/12/07)

LAKE MOHEGAN FIRE DISTRICT AND LAKE MOHEGAN PROFESSIONAL FIRE FIGHTERS ASSOCIATION, LOCAL 2956, IAFF, AFL-CIO. The ALJ dismissed a charge which alleged that the District violated the Act when it unilaterally changed a safety policy by not dispatching a firefighter in a designated vehicle to certain Emergency Medical Service calls. The ALJ held that the change was within the District’s rights to set staffing levels and to deploy staff as it saw fit. Since the change was exercised in accordance with the District’s management prerogatives, the charge was dismissed. (ALJ Maier, U-26743, 6/27/07)

CITY OF ROCHESTER AND ROCHESTER POLICE LOCUST CLUB, INC. AND ROCHESTER POLICE LOCUST CLUB, INC. AND CITY OF ROCHESTER. The improper practice charge, alleging a violation of §209-a.2(b) of the Act by the submission of certain proposals for interest arbitration, was upheld in part. Demands seeking to incorporate minimum staffing language into articles addressing temporary assignments to investigator positions, and the scheduling of split shifts, were held nonmandatory since the demands would restrict the City’s managerial right to determine the level of staffing needed and the manner of deploying employees. Further, the demands were not converted to mandatory subjects under City of Cohoes, 31 PERB ¶3020 (1998) since, although they were drafted as amendments to expired contractual language, the proposal was not reasonably related to the subject matter of the section sought to be amended. Demands to eliminate language in the expired agreement addressing eligibility for overtime and scheduling were held mandatorily negotiable, both on the basis of the subject matter of the demand and under the conversion theory of Cohoes. A demand to incorporate language from a memorandum of agreement into the collective bargaining agreement was nonmandatory due to the failure of the union to submit a proposal on that matter until the filing of the demand for interest arbitration. (ALJ Fitzgerald,U-26870 & U-26921, 6/12/07)

VILLAGE OF TARRYTOWN AND TARRYTOWN POLICE BENEVOLENT ASSOCIATION, INC. A “Bill of Rights” demand regarding the conduct of employer investigations prior to the imposition of discipline is a prohibited subject of bargaining in light of a local law which grants broad power for discipline, involving police officers, including investigation of charges, to the board of trustees or municipal board. As such, the demand must be withdrawn. (ALJ Cacavas, U-27234, 6/14/07)

TOWN OF ORANGETOWN AND ORANGETOWN POLICEMEN’S BENEVOLENT ASSOCIATION. The ALJ deferred to the parties’ grievance and arbitration procedure a charge which alleged a violation of the Act when the Town of Orangetown issued a directive withdrawing “additional days off” from unit members, mandating a specific work schedule, and setting mandatory days off. Grievances had been filed under the applicable grievance procedure. (ALJ Burritt, U-27565, 6/7/07)

SACHEM CENTRAL SCHOOL DISTRICT AND SACHEM ADMINISTRATOR’S ASSOCIATION. The ALJ held that the District violated §209-a.1(d) of the Act by unilaterally implementing a dress code policy that required administrators to wear a jacket. The ALJ found that this placed a greater restriction on employee dress than had previously existed, thereby creating a bargaining obligation. A defense of timeliness was dismissed since the District did not meet its burden to demonstrate that the charge was untimely and, alternatively, the charge was timely since it was filed within four months of the implementation of the policy. (ALJ Maier, U-27066, 6/21/07)

LOCKPORT PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 963, AFL-CIO AND CITY OF LOCKPORT. The City was found to have violated §209-a.1(d) of the Act when it unilaterally ceased paying health insurance benefits, longevity and EMT pay to firefighters on GML §207-a status. The City denied the existence of a past practice, however, asserting, among other defenses, that the benefits were paid without approval. The record showed that the Mayor had knowledge of the payment of those benefits in 2005 but did not direct that they cease until June 30, 2006. That he knew of the additional benefits and failed to act upon that knowledge, was evidence that the Mayor condoned or acquiesced to the practice and therefore, approved of the payment of the benefits. (ALJ Doerr, U-26888, 6/19/07)

LOUIS A. DIPADOVA AND HEMPSTEAD PUBLIC SCHOOLS. The Director dismissed the charge alleging that an employee was improperly denied membership in an employee organization because the charge is untimely filed and did not set forth facts sufficient to arguably establish the violation. (Director Klein, U-27624, 6/29/07)

JAVIER PEREZ AND HOSTOS COMMUNITY COLLEGE. The Director dismissed the charge as untimely and because there were no facts to arguably establish that the respondent intended to interfere with any rights protected by the Act. (Director Klein, U-27575, 6/28/07)

NORWICH EDUCATORS’ ORGANIZATION, NYSUT, AFT, NEA, AFL-CIO and NORWICH CITY SCHOOL DISTRICT. The charge was deferred to the parties’ contractual grievance procedure as the Association has filed a grievance on the same facts as pled in the charge, the grievance has proceeded to arbitration and no issues as to arbitrability were raised by the District. (ALJ Doerr, U-27197, 6/29/07)

TEAMSTERS, LOCAL 182, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CITY OF UTICA. The charge was deferred to the parties’ contractual grievance procedure as the Association has filed a grievance on the same facts as pled in the charge and the City indicated it would not oppose arbitrability. (ALJ Doerr, U-27500, 6/29/07)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO AND THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Where the District reassigned two union chapter leaders from their home schools and refused them access thereto pending an investigation into allegations of corporal punishment, there was no violation of §§209-a.1(a), (b) or (c) of the Act. Even if the Charging Party had established a prima facie case, which it did not, the District established that it acted for legitimate business reasons. Further, the fact that the chapter leaders may have been inconvenienced by the District’s actions did not prove that they were unduly hindered or prevented from performing their union duties. While an employer must not interfere, it is not required to encourage union activity. Lastly, the fact that by the date of the hearing one chapter leader had resigned and the other was back at her school did not moot the important questions of whether the employer engaged in unlawful retaliation or interference. (ALJ Cacavas, U-26427 & U-26428, 7/2/07)

ARETHA C. JONES AND NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND THE STATE OF NEW YORK (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES-BROOKLYN DDSO). Where the stipulated facts established that probationary employees had no contractual grievance rights to challenge a termination, the union did not breach its duty to represent when it failed and/or refused to file a grievance. A motion to dismiss is appropriate where the pleadings and confirmed facts at conference fail to evidence action that is arbitrary, discriminatory or taken in bad faith. (ALJ Cacavas, U-27430, 7/2/07)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF WESTCHESTER. Where the union presented only speculation as to the motive for disciplinary charges against an employee who sought its assistance in overturning the employer’s denial of vacation leave, no violation is found. The evidence established that where the employee seeking leave was chronically behind in her work, and further deficiencies emerged in her absence, the employer’s termination of her employment a year and a half after the vacation issue arose was based not on protected activity, but on its legitimate business reasons. (ALJ Cacavas, U-25741, 7/2/07)

THE ALBERTO PAGAN AND LEHMAN COLLEGE, et al. Director dismissed a charge filed against Lehman College and others because it lacked copies and did not clearly and concisely identify the conduct that was alleged to have constituted the violation. (Director Klein, U-27527, 7/5/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND OCEANSIDE UNION FREE SCHOOL DISTRICT. Based upon undisputed facts, the ALJ granted the District’s motion seeking to dismiss the charge upon the affirmative defense of contractual duty satisfaction. The charge alleged that the District violated §§209-a.1(a) and (d) of the Act when it unilaterally changed the work hours of the evening maintenance workers. The ALJ held that, even assuming that the evening maintenance workers had worked the same schedule for many years and that the schedule was changed by the District as alleged, the change could not be considered to have been undertaken unilaterally by the District, since it conformed to the terms of the collectively negotiated agreement that specifically states the hours of those workers. (ALJ Blassman, U-27233, 7/6/07)

POLICE BENEVOLENT ASSOCIATION OF THE POLICE DEPARTMENT OF THE COUNTY OF NASSAU AND COUNTY OF NASSAU. An employer’s decision to redeploy police officers from a specialized tactical unit to other patrols is a staffing decision which is a nonmandatory subject of negotiation. That there may be safety implications does not make the action mandatory bargainable. The impact of the action, however, must be bargained and absent clear indicia that such duty has been satisfied, that obligation must be honored. Where the employer’s agent advised that he would “meet” with the union and “discuss” the issues, but not “negotiate,” a violation has occurred. (ALJ Cacavas, U-23656, 7/31/07)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO and TOWN OF WEBB UNION FREE SCHOOL DISTRICT. CSEA’s charge was deferred to the parties’ collectively negotiated grievance arbitration mechanism. Deferral was not pled and a grievance had not been filed but, to the extent the contract was a reasonably arguable source of right to CSEA, the improper practice charge was jurisdictionally deferred. (ALJ Doerr, U-26685, 7/13/07)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO, AND MATTITUCK-CUTCHOGUE UNION FREE SCHOOL DISTRICT. The ALJ dismissed a charge which alleged that the District violated the Act by transferring unit work to a private contractor. The ALJ found that pursuant to the management rights clause in the parties’ collectively negotiated agreement, the union had waived its right to bargain concerning the transfer of the work. (ALJ Maier, U-27307, 8/31/07)

JAMESTOWN PROFESSIONAL FIREFIGHTERS ASSOCIATION LOCAL 1772 AND CITY OF JAMESTOWN. The ALJ deferred to the parties’ grievance and arbitration procedure a charge alleging a violation of the Act by the City’s change in a policy as to scheduling time off. A grievance had been filed under the applicable grievance procedure. (ALJ Fitzgerald, U-27520, 8/2/07)

PROFESSIONAL STAFF CONGRESS – CITY UNVERSITY OF NEW YORK AND CITY UNVERSITY OF NEW YORK. The ALJ dismissed a charge that alleged that CUNY violated the Act by dealing directly with unit employees to the exclusion of PSC. The timely evidence presented was insufficient to demonstrate a violation of the Act, and there were no facts presented which occurred within the four month period of limitations upon which a violation could be found. Accordingly, the charge was dismissed. (ALJ Maier, U-26795, 8/3/07)

LOCAL 1655, DISTRICT COUNCIL 37, AFSCME, AFL-CIO AND JONELLE CORRIDON. Facts confirmed by the ALJ who conferenced the case evidenced that the parties agreed that Corridon had received a response to her inquiry about filing a grievance. The charge, clarified to ascertain that the only allegation was that the union failed to respond to her inquiry about filing a grievance, was, therefore, dismissed. (ALJ Maier, U-27034, 8/6/07)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO, ULSTER COUNTY UNIT 8950 OF ULSTER COUNTY LOCAL 856 AND COUNTY OF ULSTER. The charge was deferred to the parties’ contractual grievance procedure as CSEA has filed a grievance on the same facts as pled in the charge. (ALJ Carlson, U-27274, 8/6/07)

LINDA AMNAWAH AND UNITED FEDERATION OF TEACHERS. The Director dismissed the charge alleging that the United Federation of Teachers violated the duty of fair representation because there were no facts to arguably establish its conduct as arbitrary, discriminatory or in bad faith. (Director Klein, U-27687, 8/7/07)

LEWIS LATTARI AND COUNTY OF NASSAU AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the charge against the County of Nassau for lack of standing and because the alleged conduct is not proscribed by any of the subdivisions of the Act. The charge was dismissed against CSEA in the absence of facts which arguably established its conduct as arbitrary, discriminatory or in bad faith. (Director Klein, U-27734, 8/7/07)

KEITH MASSAY AND BRONX SURFACE TRANSIT OPERATING AUTHORITY and TRANSPORT WORKERS UNION. The Director dismissed the charge against TWU inasmuch as it identifies no acts or omissions within the four-month period of limitation. The charge was dismissed against MABSTOA for the same reason. (Director Klein, U-27671, 8/7/07)

RAMONA BYAS AND SUBWAY SURFACE SUPERVISORS ASSOCIATION. The Director dismissed the charge inasmuch as it failed to establish facts which would arguably establish that the union’s conduct was arbitrary, discriminatory or in bad faith. (Director Klein, U-27621, 8/8/07)

NORMAN SCOTT AND AMALGAMATED TRANSIT UNION, LOCAL 1056, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. A proposed amendment to a charge which relates back to the original pleading is timely even if filed more than four months after the occurrence of the underlying action. Where, however, the amendment alleged the denial by the employer of union representation at an investigatory meeting, the claim was dismissed for failure to state a cause of action since no such right exists for public employees under the Act. The claim against the union for, in part, failing to try to suppress a written statement obtained from an employee without union representation was also without merit since there was no basis upon which the union could have the statement suppressed and, in any event, the document merely repeated the information the employee had verbally provided to his supervisor before he even requested the union’s involvement. As for the remainder of the allegations against the union, they are dismissed absent evidence of bad faith, arbitrariness or discrimination. The charging party’s disappointment with the outcome of the grievance and arbitration process may not establish a violation of the Act. (ALJ Cacavas, U-26832, 8/14/07).

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Where charging party’s proof of animus to support a claim of retaliation against his employer was based purely on speculation, the claim fails. Even the circumstance of timing is insufficient to meet the burden of proof. Further, evidence of acrimony between an employee and a supervisor is irrelevant to meet the burden of proof unless it is established that such acrimony arises from union animus. A claim against a union is similarly without merit where it is based only on the member’s dissatisfaction with the union’s decisions and lacks proof of bad faith, arbitrariness or discrimination. (ALJ Cacavas, U-26822, 8/14/07).

TRANSPORT WORKERS UNION OF GREATER NEW YORK, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ dismissed a charge which alleged that the NYCTA violated the Act by unilaterally implementing new off duty employment standards and by adopting the standards in retaliation for employees having filed grievances challenging the denial of off-duty employment applications. The ALJ found that the NYCTA policy permitted it to adopt more stringent standards since the policy in existence for a number of years was subject to that condition. He also found that there was no basis to conclude that the policy was amended in retaliation for the grievance activity, but was because of the NYCTA’s longstanding concerns with the individual in question. (ALJ Maier, U-26837, 8/15/07)

SUFFOLK COUNTY POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF SUFFOLK. The Association’s charge, alleging that the County violated §209-a.1(d) of the Act by unilaterally altering the criteria by which bargaining unit members are selected for drug testing, was deferred to a pending contractual grievance in which the same subject matter is raised. (ALJ Blassman, U-27620, 8/16/07)

JONES BEACH LIFEGUARD CORPS AND STATE OF NEW YORK (OFFICE OF PARKS, RECREATION & HISTORIC PRESERVATION). A charge filed by an entity which is not the bargaining agent for the unit involved, alleging violations by the employer of §§209-a.1(a), (b), (c), (d) and (e) of the Act was dismissed, the §§209-a.1(d) and (e) allegations as the duty to negotiate runs solely between the employer and the bargaining agent, the §§209-a.1(a) and (c) allegations as the charging party lacked standing to file such claims in its own name as it is not the recognized or certified bargaining agent for the employees involved, and the §209-a.1(b) allegation as none of the actions alleged - refusal to meet with the charging party, denial of meeting space to its representatives, a threat of arrest made to two of its officials, and denial of medical leave to another of its officials – evidence employer domination of the charging party. (ALJ Comenzo, U-26875, 8/17/07)

UNITED FEDERATION OF POLICE OFFICERS, INC., AND COUNTY OF ROCKLAND. A charge that the employer unilaterally changed the shift and work location of a unit employee, ceased allowing the employee to utilize his county vehicle to travel to and from his residence, and required the employee to begin wearing a jacket and tie to work was dismissed on a finding that the change in work shift had been bargained for in the parties’ collective bargaining agreement and that, with the change of work assignment, the extent of the use of an employer-provided vehicle and the appropriate attire for work did not constitute changes. (ALJ Comenzo, U-26359, 8/21/07)

STEPHEN J. KIERNAN, SR., AND NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC., AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES – DOWNSTATE CORRECTIONAL FACILITY. The charge that the bargaining agent breached its duty of fair representation by declining to pursue the charging party’s grievance beyond Step 2 of the contractual dispute resolution procedure was dismissed because a mere disagreement on the merits of a grievance is insufficient to establish a breach of the duty and as the bargaining agent represented the charging party at the earlier stages of the grievance procedure, received his arguments regarding the grievance, and considered the facts underlying it in determining not to go forward. (ALJ Comenzo, U-26826, 8/14/07)

SUFFOLK COUNTY CORRECTION OFFICERS ASSOCIATION AND COUNTY OF SUFFOLK. The ALJ held that a demand concerning a Sick Leave Management Program was properly submitted to interest arbitration. The issue involved an interpretation of §209.4(h) of the Act which, as relevant herein, precludes the submission of demands relating to disciplinary procedures and investigations between these parties to interest arbitration. The ALJ determined that the standards as to whether a correction officer was a sick leave abuser do not constitute discipline, and that the program did not contain disciplinary procedures which are within the meaning of the statute. Accordingly, the charge was dismissed and the demand permissibly submitted to interest arbitration. (ALJ Maier, U-27238, 8/29/07)

JAMES SMALLS AND TRANSPORT WORKERS UNION, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The charge, alleging that Local 100 violated §209-a.2(c) of the Act when it failed to properly represent Smalls during step one and two disciplinary grievance hearings, was dismissed for failure to prove that Local 100 had acted arbitrarily, discriminatorily or in bad faith. The record showed that Local 100 representatives had properly represented Smalls during the step one and two disciplinary grievance hearings and that Smalls refused representation during the arbitration. (ALJ Blassman, U-26642, 9/5/07)

VERTULIE PIERRE LOUIS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed the charge as untimely and because there are no facts to arguably establish a breach of the enumerated subdivisions of the Act. (Director Klein, U-27751, 9/6/07)

CORNING TEACHERS' ASSOCIATION, NYSUT, AFT, NEA, LOCAL NUMBER 11-035 AND CORNING PAINTED POST AREA SCHOOL DISTRICT. The charge was deferred to the parties' contractual grievance procedure as the Association has filed grievances on the same facts as pled in the charge. (ALJ Comenzo, U-27672, 9/7/07)

TOWN OF WALLKILL AND TOWN OF WALLKILL POLICE BENEVOLENT ASSOCIATION. Pursuant to his initial investigation, the Director dismissed the charge alleging that the Union failed to bargain in good faith inasmuch as there are no facts to arguably establish the presentment of any such bargaining demand. (Director Klein, U-27617, 9/12/07)

BARRY FISHBEIN AND PUBLIC EMPLOYEES FEDERATION. The Director dismissed the charge inasmuch as it was devoid of facts. (Director Klein, U-27805, 9/12/07)

BARRY FISHBEIN AND STATE OF NEW YORK. The Director dismissed the charge inasmuch as it was devoid of facts. (Director Klein, U-27806, 9/14/07)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO AND MATTITUCKCUTCHOGUE UNION FREE SCHOOL DISTRICT. The ALJ dismissed a charge which alleged that the District violated the Act by transferring unit work to a private contractor. The ALJ found that pursuant to the management rights clause in the parties' collectively negotiated agreement, the union had waived its right to bargain concerning the transfer of the work. (ALJ Maier, U-27307, 9/20/07)

JOSEPH P. MCCARTHY AND NEW YORK STATE THRUWAY EMPLOYEES, TEAMSTERS LOCAL 72, AND NEW YORK STATE THRUWAY AUTHORITY. A charge that the bargaining agent violated its duty of fair representation by failing to file a grievance at the charging party's request was dismissed. The charging party's allegations indicated that the bargaining agent determined not to grieve on the basis that the at-issue action of the employer was in conformity with an agreement reached with the bargaining agent in resolution of a grievance some years earlier and because it did not believe a new grievance was likely to be successful given the passage of time. (ALJ Comenzo, U-26644, 9/24/07)

CITY OF HUDSON AND HUDSON POLICE UNION, LOCAL 3979 OF NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO. In reviewing the parties' proposals for submission to compulsory interest arbitration, the ALJ found that Local 3979's wage proposal and vision/dental insurance proposal along with the City's patrol car manning, K-9 utilization and labor/ management proposals were mandatory subjects of bargaining and properly before the panel. The ALJ also found that Local 3979's minimum K-9 officer proposal and Health Insurance proposals to be nonmandatory and thereby must be withdrawn from compulsory interest arbitration. (ALJ Marchant, U-26882 & U-26903, 9/26/07)

NICOLA A. DEMARCO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An improper practice charge alleging that the District had violated §§209-a.1(a) and (c) of the Act was dismissed where the charging party failed to prove that but for his involvement in protected activity, the adverse actions would not have occurred. The employee's mere speculation that his principal acted because of his union involvement is insufficient proof. (ALJ Cacavas, U-26864, 9/27/07)

HELEN POWERS-LAZARUS AND LOCAL 305, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the charge of the breach of the duty of fair representation because (1) an individual employee lacks standing to allege a violation of §209-a.2 (b) of the act; (2) PERB has no jurisdiction over internal union affairs; and (3) no fundamental organizational right or benefit was impacted and Local 305 had not assumed any representational role on behalf of Lazarus. (Director Klein, U-27732, 9/28/07)

COUNTY OF NASSAU AND SHERIFF OFFICERS ASSOCIATION, INC. The ALJ dismissed a charge filed by the County which alleged that the Association violated the Act by not providing documents prior to a hearing which it need to evaluate the allegations set forth in a charge. The ALJ held that, with the exceptions of requests for a bill of particulars or a subpoena, nether the Act nor the Rules permit discovery in improper practice proceedings prior to a hearing, and accordingly dismissed the charge. (ALJ Maier, U-27412, 9/28/07)

HAMPTON BAYS TEACHERS' ASSOCIATION, NYSUT, AFT, AFL-CIO AND HAMPTON BAYS UNION FREE SCHOOL DISTRICT. The District violated §209-a.1(a) and (d) of the Act when it refused to provide the Association with information it requested to file a grievance. The District's argument that the unit employees and Association were limited to proceeding under §3031 of the Education Law and that the Association failed to articulate a viable contractual grievance, was found to be without merit. The ALJ held that it was sufficient that the Association demonstrated a non-frivolous argument that a provision may have been violated by the circumstances being investigated or alleged to have occurred. The ALJ also rejected the District's argument that the information could not be disclosed because it was a confidential student record under the Family Education Rights and Privacy Act, since the documents were not shown to be part of the students' records. (ALJ Blassman, U-26980, 10/1/07)

STEVEN KALLAN AND LOCAL UNION NO. 3, CITY "A" DIVISION, INTERNATIONAL BROTHERHOOD OF ELECTRICIANS AND CITY UNIVERSITY OF NEW YORKHUNTER COLLEGE. The fact that an employee believes that his qualifications for promotion were superior to those of the person chosen, or that the interview process was flawed, does not establish that the employer acted adversely to him based on union animus. Without a showing that "but for" his protected activity he would have been given the position he sought, and that the employer's proffered business reasons for its decision were subterfuge, no violation of the Act can be found. Testimony of a conversation between supervisors a few years earlier evidencing annoyance with grievance activity is insufficient to circumstantially meet the burden of proof. Further, where the decision to promote was made by a panel of three people, and two had no knowledge of the candidate's protected activity, another crucial element of proof could not be established. (ALJ Cacavas, U-26892, 10/9/07)

DARRELL L. JICHA AND UNITED TRANSPORTATION UNION. The Director dismissed the charge of breach of the duty of fair representation because (1) PERB lacks jurisdiction over claimed breaches of a union's constitution or any agreement; and (2) a three month delay in processing a grievance, without more, does not establish arbitrary, discriminatory or bad faith conduct on the part of the union. (Director Klein, U-27710, 10/10/07)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 400, NEW YORK COUNCIL 66, AFL-CIO, AND CITY OF SYRACUSE. The charge was deferred to the parties' contractual grievance procedure as the Association has filed grievances on the same facts as pled in the charge. (ALJ Comenzo, U-27570, 10/15/07)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 1773, NEW YORK COUNCIL 66, AFL-CIO AND CITY OF SYRACUSE. The charge was deferred to the parties' contractual grievance procedure as the Association has filed grievances on the same facts as pled in the charge. (ALJ Comenzo, U-27580, 10/15/07)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO, PUTNAM COUNTY UNIT #8150, PUTNAM COUNTY LOCAL 840 AND CARMEL CENTRAL SCHOOL DISTRICT. The charge was deferred to the parties' contractual grievance procedure as CSEA has filed a grievance on the same facts as pled in the charge. (ALJ Burritt, U-27778, 10/18/07)

FRED IFILL AND NEW YORK STATE COURT OFFICERS ASSOCIATION AND STATE OF NEW YORK - UNIFIED COURT SYSTEM. The ALJ dismissed Ifill's charge, that alleged that the Association violated its duty of fair representation when it recommended that he resign from his position and then failed to properly assist him when he sought reinstatement, based upon Ifill's refusal to appear at the scheduled hearing and his subsequent failure to respond to a notice requesting that he provide good and sufficient reason for his refusal to attend the hearing. (ALJ Blassman, U-27421, 10/18/07)

MOUNT VERNON PUBLIC LIBRARY AND CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO, MOUNT VERNON LIBRARY UNIT, LOCAL 860, UNIT 9166-01. Where a grievance is pending on the issue, that portion of an improper practice charge alleging a unilateral change under §209a.1(d) is properly deferred to the contractual grievance machinery. (ALJ Cacavas, U-27715, 10/25/07)

HUDSON VALLEY COMMUNITY COLLEGE NONINSTRUCTIONAL EMPLOYEES UNION AND HUDSON VALLEY COMMUNITY COLLEGE and COUNTY OF RENSSELAER. In August 2006, the College placed a help wanted advertisement for two part-time, seasonal positions to resurface the College ice rink on the weekends during the ice rink season, from October through March. The Non-Instructional Employees Union (NIEU) objected on the ground that the weekend ice work was exclusive bargaining unit work. When the College thereafter unilaterally subcontracted with a temporary service agency to perform the at-issue work, NIEU filed a charge alleging a violation of §209-a.1(d). While the ice rink had been in operation since 1991, weekend ice resurfacing had been performed exclusively by NIEU members for the five ice rink seasons immediately preceding the charge. There was no change in the work in 2006, only in who performed it. Under these facts, five consecutive seasons of work performed only by NIEU members was sufficient to establish exclusivity. The ALJ found that there had been a unilateral transfer of exclusive bargaining unit work in violation of §209-a.1(d). (ALJ Burritt, U-27121, 10/29/07)

UNITED COLLEGE EMPLOYEES OF FASHION INSTITUTE OF TECHNOLOGY AND FASHION INSTITUTE OF TECHNOLOGY. The ALJ held that the employer violated the Act by refusing to continue the past practice which computed the manner by which employees were paid, thereby reducing their pay. The ALJ found that the practice continued uninterrupted for a sufficient period of time so as to give rise to the reasonable expectation that it would continue. The ALJ rejected the defense that the employees were being paid for work not being performed, in light of the fact that a new practice had developed which could not be unilaterally changed by the employer. (ALJ Maier, U-27057, 10/29/07)

DARRELL L. JICHA AND STATEN ISLAND RAPID TRANSIT OPERATING AUTHORITY. An individual lacks standing to bring an action against an employer alleging a violation of subsection (e) of §209-a.1. As such, the charge must be dismissed. (ALJ Cacavas, U-27746, 11/5/07)

JONES BEACH LIFEGUARD CORPS AND STATE OF NEW YORK (OFFICE OF PARKS, RECREATION AND HISTORICAL PRESERVATION. Where an employee organization is neither recognized nor certified as the bargaining agent for a group of employees, it lacks standing to file an improper practice charge. (ALJ Cacavas, U-26930, 11/6/07)

DISTRICT COUNCIL 37, AFSCME, LOCAL 1070 AND STATE OF NEW YORK- UNIFIED COURT SYSTEM. The ALJ held that the employer violated the Act by failing to provide information to DC 37 that it had requested in order to represent an employee facing disciplinary charges. The ALJ held that the documents requested were necessary and relevant to the employee's defense, and rejected the employer's defenses. Among those defenses were that the charge should be dismissed because the information was not relevant, pre-hearing discovery is not required by the Act and that the employee was being disciplined pursuant to a statutory procedure and the Act, therefore, does not require the production of the requested information. (ALJ Maier, U-27031, 11/7/07)

FINGER LAKES COMMUNITY COLLEGE AND COUNTY OF ONTARIO AND FINGER LAKES COMMUNITY COLLEGE - GREATER ROCHESTER ADJUNCTS DEDICATED TO EDUCATION. The Director dismissed a charge alleging that the union violated the Act by appointing a former employee to its negotiating team. (Director Klein, U-27865, 11/7/07)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, AND STATE OF NEW YORK - UNIFIED COURT SYSTEM. Employer policy further limiting outside employment by unit employees, imposing new grounds for discipline and removing the discretion not to impose discipline violated the Act as it was unilaterally adopted and because said subjects are mandatorily negotiable. The employer's mission-related defense, based on unit employees' off-duty safety and the prevention of a conflict of interest with their public employment, was rejected; the former as it is not mission related and the latter as the record did not evidence an "objectively demonstrable need to act" or that the action taken did not "significantly or unnecessarily intrude on the protected interest of the employees." (ALJ Comenzo, U-25956, 11/8/07)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1095, AFL-CIO AND COUNTY OF ERIE AND ERIE COUNTY MEDICAL CENTER CORPORATION. The ALJ conditionally dismissed an improper practice charge which alleged that the County of Erie and Erie County Medical Center Corporation violated the Act by subcontracting work to a private contractor. The parties agreed to a conditional dismissal pending resolution of the pending contractual grievance. (ALJ Fitzgerald, U-27739, 11/30/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND BABYLON PUBLIC LIBRARY. The ALJ deferred a charge to the parties' grievance and arbitration procedure under their collectively negotiated agreement. The charge alleged a change in the formula pursuant to which employee contributions to the Empire Plan were calculated, which was the same issue raised in the grievance proceeding. Accordingly, the charge was deferred pursuant to the Board's decision in Herkimer County BOCES, 20 PERB 3050 (1981). (ALJ Maier, U-27846, 11/30/07)

KINGS POINT POLICE BENEVOLENT ASSOCIATION AND INCORPORATED VILLAGE OF KINGS POINT. The charge, alleging that Village violated §§209-a.1(a) and (d) of the Act when it hired a police officer at the third step, instead of the first step, of the contractual pay schedule, was deferred, upon consent of the parties, to a pending contractual grievance raising the same issue as the charge. (ALJ Blassman, U-27448, 11/30/07)

CARL FINN AND CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (OFFICE OF MENTAL HEALTH - ROCKLAND PSYCHIATRIC CENTER). The ALJ dismissed a charge which alleged that the union did not represent Finn at a hearing brought to investigate him. Based upon facts determined during the pre-hearing conference, which were not disputed by Finn, the charge was dismissed due to his failure to demonstrate that CSEA did not represent him or that its actions were arbitrary, discriminatory or taken in bad faith. (ALJ Maier, U-27491, 11/30/07)

CITY OF MIDDLETOWN AND CITY OF MIDDLETOWN POLICE BENEVOLENT ASSOCIATION. In an interim decision the ALJ dismissed the PBA's procedural objections to the City's charge which alleged that the PBA violated the Act when it submitted four nonmandatory demands to interest arbitration. The ALJ found that the Director's determination to accept an amended charge to cure the technical deficiency of the absence of the notary's signature on the jurat was reviewable, if at all, by the Board. Further, the ALJ rejected the PBA's allegation that the charge could not be cured outside the ten-day filing period since the amendment was a technical, not a substantive, deficiency, and there was no prejudice to the PBA in the acceptance of the amended charge. However, a new allegation as to bad faith bargaining during negotiations which was first raised in the amended charge, was untimely as beyond the filing timeline in Rule 205.6. (ALJ Fitzgerald, U-27423, 12/4/07)

BERNADETTE DANNA AND ROCHESTER TEACHERS ASSOCIATION. The Director dismissed the charge alleging that the Association breached its duty of fair representation when it refused to process a grievance because there were no facts to arguably establish the Association's conduct as arbitrary, discriminatory or in bad faith. (Director Klein, U-27886, 12/5/07)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND WESTHAMPTON BEACH UNION FREE SCHOOL DISTRICT. The charge, alleging that the District violated §§209-a.1(a) and (c) of the Act when it denied a former unit President's application for a different position, was dismissed for failure to prove that the denial was motivated by union animus. The record did not support a finding that the Superintendent, who made the determination, harbored union animus, or that labor relations were contentious when the former President held office. Further, the District demonstrated legitimate business reasons for its action, since the person chosen had higher qualifications and longer seniority. (ALJ Blassman, U-26808, 12/18/07).

ALBANY POLICE OFFICERS UNION, LOCAL 2841 OF THE NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO AND CITY OF ALBANY. The City was found to have violated the Act when it submitted a nonmandatory proposal to interest arbitration and was ordered to withdraw the proposal. The remaining proposals complained of were determined to be properly before the panel. A proposal, vague on its face, was found to have been clarified by actions of the parties during post-mediation negotiations. Council 82's argument that proposals introduced either at or after mediation cannot be placed before an interest arbitration panel was rejected. Mediation is an extension of negotiations. (ALJ Doerr, U-27073, 12/18/07)

CITY UNIVERSTY OF NEW YORK AND PROFESSIONAL STAFF CONGRESS-CITY UNIVERSITY OF NEW YORK. The ALJ dismissed a charge which alleged that CUNY violated the Act by directly dealing with unit members when it compensated them for the assignment of the copyright to work they produced during the course of their employment. Prior case law held that the PSC had waived its right to bargain concerning matters which fell within the scope of CUNY's intellectual property policy. CUNY's intellectual property policy gave the employee's the right to ownership over work they developed. Under the collectively negotiated agreement Since the work had already been created, the employees had the right to dispose of the copyright as they chose, in accordance with the rights under the policy. (ALJ Maier, U-26996, U-27436, and U-27447, 12/18/07)

KAREEN DELAHAYE AND AMALGAMATED TRANSIT UNION AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed the charge alleging that the union breached its duty of fair representation because the operative act occurred more than four months prior to the filing of the charge. (Director Klein, U-27908, 12/28/07)

ORANGE COUNTY DEPUTY SHERIFF'S POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF ORANGE AND ORANGE COUNTY SHERIFF. The Director deferred a charge to the parties' grievance procedure. (Director Klein, U-27545, 12/28/07)

Go To:  Recent Board Improper Practices Decision Summaries   Separator Bar    Archived Decision Summaries Index

Declaratory Rulings

CITY OF NEW YORK. The ALJ issued a declaratory ruling recommending whether certain provisions could be submitted to interest arbitration. The ALJ found that proposals relating to staffing, work charts, the provision of vests, sick leave abuse and work rule notification could not be submitted because they were either nonmandatory or prohibited subjects. He also found that they did not convert to mandatory subjects pursuant to City of Cohoes, 31 PERB I3020 (1998), confirmed sub nom. Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v Cuevas, 32 PERB 7026 (Sup Ct Albany County 1998), affd 276 AD2d 184, 33 PERB 7019 (3d Dept 2000), lv denied, 96 NY2d 711, 34 PERB 7018 (2001) (hereafter, Cohoes). The ALJ further found that proposals relating to compensation, because the unit was not eligible for certain disciplinary protections, and safety standards were permissibly submitted to interest arbitration. (ALJ Maier, DR-119, 5/3/07)

PATROLMEN’S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. The Director dismissed a petition for declaratory ruling as deficient because there was no presentment of a demand and refusal to bargain it. (Director Klein, DR-121, 6/21/07)

NIAGARA CHARTER. The Niagara Charter School's petition seeking a declaratory ruling as to whether the Niagara Wheatfield Teachers Association must first file a petition and a showing of interest before claiming to be the exclusive representative of its instructional employees was dismissed as beyond the scope of the stated purpose of declaratory ruling procedures. (ALJ Doerr, DR-120, 10/11/07)

Go To:  Recent Board Declaratory Rulings Decision Summaries   Separator Bar    Archived Decision Summaries Index

Return To:   Recent Decision Summaries Page   Separator Bar   Archived Decision Summaries Index
   Return to NYS PERB Home Page

Home
 Privacy Policy


last modified: 3/19/2010
URL: http://www.perb.ny.gov/Decarc2007.asp

Cialis Online Cialis Generic Viagra Online Viagra online Generic Viagra ireland Viagra online Viagra Ireland viagra Ireland Levitra purchase cheap Viagra Sampla Ceannaigh Viagra Tadalafil generic 20mg Cialis Cheap Buy Generic Buy Tadalafil Cialis cheap Tadalafil Buy cialis online Cialis Generic Buy cheap Cialis Cialis online Kamagra online Cheap cialis buy generic Cialis Cialis 10mg cheap viagra Levitra Ireland Levitra online Levitra Vardenafil Levitra Ireland