NYS PERB DECISIONS
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Archived Decision Summaries - January 1, 2008 through December 31, 2008

(Updated June 16, 2009)


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Decision Summaries Of The Board


Board Certifications

TEAMSTERS LOCAL UNION NO. 118 has been certified to represent all full-time and part-time employees of the Town of Springwater Highway Department. Excluded are Supervisory, Temporary Seasonal Employees, Clericals and all other employees. (C-5747, 1/23/08)

COMMUNITY CHARTER SCHOOL INSTRUCTIONAL STAFF ASSOCIATION, NYSUT/AFT, AFL-CIO has been certified to represent all full and part-time Teachers, School Nurse, Social Worker, ten (10) month Building Substitute Teacher, and In-School Suspension Monitor of the Community Charter School. Excluded are Teacher Aide, Chief Financial Officer, School Principal, School Director, Director of the Family Resource Center, Network Administrator, Substitute Teachers other than ten (10) month Substitute Teachers, Office Manager, Administrative Assistant, Food Service and Cafeteria Employees, and all other employees. (C-5735, 1/23/08)

TEAMSTERS LOCAL UNION NO. 693, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA has been certified to represent all full-time and part-time employees assigned to the Town of Colchester Highway Department - including those employees who work for the Town year-round but who are assigned to the Highway Department on a seasonal basis - in the following titles: Heavy Equipment Operator, Motor Equipment Operator and Mechanic. Excluded from the unit are the Superintendent and Deputy Highway Superintendent. (C-5683, 3/5/08)

CANISTEO-GREENWOOD ADMINISTRATORS' ASSOCIATION has been certified as the representative of all employees of the Canisteo-Greenwood Central School District in the titles of: High School Principal, Middle School Principal, Elementary School Principal, Director of Special Education, Director of Transportation and Director of Facilities. All other titles are excluded. (C-5741, 3/5/08)

LOCAL 317, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA has been certified to represent all full-time employees assigned to the Town of Cazenovia Highway Department in the following titles: Heavy Equipment Operator, Motor Equipment Operator, Working Foreman, Laborer and Mechanic. All elected officials, the Deputy Superintendent of Highways, office clerical employees, part-time and seasonal employees and all other Town employees are excluded from the unit. (C-5745, 3/5/08)

LOCAL UNION NO. 17, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA has been certified as the representative of all full-time and part-time employees of the Town of Jewett Highway Department. The Highway Superintendent and all clerical employees are excluded from the unit. (C-5755, 3/5/08)

LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent all full-time Heavy Motor Equipment Operators in the Village of Cuba Department of Public Works. Excluded from the unit are all other employees. (C-5758, 3/5/08)

UNITED FEDERATION OF TEACHERS, NYSUT, AFT has been certified to represent all Teachers, Teacher Assistants (Cooperating Teachers), Fine Art Coordinator and Student Mentor employed by the Merrick Academy-Queens Public Charter School. All other employees are excluded from the unit. (C-5771, 3/5/08)

BOCES UNITED SUPPORT STAFF, NYSUT has been certified to represent a unit of all full and part-time employees of the Board of Cooperative Educational Services of the First Supervisory District of Monroe in the following titles: Bus Driver, Bus Attendant, Bus Mechanic, Cleaner, Custodial Assistant, Maintenance Mechanic I, Maintenance Mechanic II, Maintenance Mechanic III, School Sentry I, School Sentry II, Food Service Helper, Cook Manager and Head Groundskeeper. Excluded from the unit are all other employees. (C-5774, 4/3/08)

LOCAL 317, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA has been certified to represent all full-time motor vehicle operators employed by the Town of Spafford. All elected officials, office clerical and all other Town employees are excluded. (C-5775, 5/20/08)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 118 has been certified to represent a unit of all full and part-time Motor Equipment Operators in the Town of Sodus' highway department. Excluded from the unit is the Town Highway Superintendent and all other employees. (C-5744, 7/3/08)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of Town of Colonie employees in the following titles: Administrative Aide (Except HR & Comptroller), Application Analyst, Application Network Specialist, Assessment Clerk, Assistant Chief Water Treatment Plant Operator, Assistant Golf Course Manager, Assistant Golf Course Superintendent, Assistant Library Director, Assistant Recreation Maintenance Supervisor, Building Inspector, Building Maintenance Technician, Buyer, Chief Commercial Building Inspector, Chief Residential Building Inspector, Chief Sewer Treatment Plant Operator, Chief Water Treatment Plant Operator, Child Care Supervisor, Civil Engineer Technician, Clerical Aide, Clerk to Town Justice, Code Enforcement Officer, Computer Network Special, EMS Assistant Chief, EMS Billing Clerk, EMS Captain, Environmental Engineer, Environmental Services Landfill Operations Manager, Evidence Clerk, Facilities Operator Manager, Fire Inspector, Fire Protection Specialist, GIS Specialist Coordinator, Golf Course Equipment Operator, HVAC Technician, Information Support, Instrumentation Technician, Legal Secretary (Except Town Attorney), Library Aide, Library Assistant, Library Clerk, Library Page, Librarian I, Librarian II, Municipal Training Center Operator, Network Administrator, Paralegal (Except Town Attorney), Paralegal Assistant (Except Town Attorney), Payroll Assistant (Except Comptroller), Personnel Assistant (Except HR), Personnel Clerk (Except HR), Personnel Clerk/Recreation, Planner, Planning Aide, Police Comm Assistant, Principal Account Clerk, Principal Assessment Clerk, Principal Clerk, Principal Fleet Maint Clerk, Principal Library Clerk, Principal Police Record Clerk, Principal Water Account Billing Clerk, Public Works Operating Technician, Purchasing Clerk, Receptionist, Records Management Coordinator, Real Property Appraiser, Sanitary Engineer, Sewer Inspector, Sewer Maintenance Supervisor, Sr Account Clerk Typist (Except Comptroller), Sr Buyer, Sr Civil Engineer, Sr Civil Engineering Technician, Sr Clerk to Town Justice, Sr Environmental Engineering Technician, Sr Planner, Sr Public Works Operating Technician, Sr Real Property Appraiser, Sr Resources Case Worker, Sr Resources Specialist, Sr Typist, Sr Youth Services Specialist, Sewer Treatment Plant Maintenance Supervisor, Sewer Treatment Plant Operations Supervisor, Storm Water Management Inspector, Typist (Except Town Attorney), Victim Service Specialist, Water Account Billing Clerk, Water Chemist, Water Construction Inspector, Water Engineer, Water Meter Serviceman Spvr, Water Maintenance Supervisor, Weigh Station Attendant, Utility Locator, Youth Employment Advocate.

Excluded from the unit are employees in the following titles: Comptroller Office: Accounting Assistant, Administrative Aide, Accounting Supervisor, Payroll Assistant, Principal Accounting Assistant, Senior Account Clerk Typist; Human Resources: Human Resources Personnel Clerk, Personnel Clerk, Personnel Assistant, Benefits Coordinator; Town Attorney: Legal Secretary, Paralegal, Paralegal Assistant, Typist. (C-5783, 11/26/08)

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO, CLC has been certified as the exclusive representative of all office and maintenance employees of the Dunkirk Housing Authority in the following titles: Occupancy Specialist, Account-Clerk Typist, Tenant Service Specialist-Spanish Speaking, Clerk II-Spanish Speaking, Senior Maintenance Mechanic, Maintenance Mechanic, Maintenance Work and Utility Worker. Excluded from the unit are all managerial and confidential employees including the Executive Director. (C-5799, 11/26/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of all full-time and part-time employees of the Bronxville Public Library in the titles of: Librarians, Head of Children Services, Head of Reference, Head of Circulation (Senior Clerk), Clerks, Pages and Staff Assistants-Library. Excluded from the unit are employees in the titles of: Library Director, Student Pages and all other employees. (C-5813, 12/29/08)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all cafeteria employees of the Glen Cove City School District in the titles of: Food Service Helper, Cook I-Middle-Assistant Cook, Cook-High-Assistant Cook, Cook II-High/Middle, Cook Manager-Elementary, Manager Middle and Manager High. All other titles are excluded. (C-5657, 12/29/08)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all full-time and permanent part-time clerical employees (employed twenty (20) or more hours) of the Roosevelt Union Free School District in the following titles: Clerk Typist 1, Audio Visual Clerk, Duplicating Machine Operator Aide, Clerk, Senior Account Clerk, Account Clerk, Senior Clerk Typist, Senior Librarian Clerk, Senior Personnel Clerk and Store Clerk. All other employees, including all clerical employees previously excluded as confidential and/or managerial, are excluded. (C-5661, 12/29/08)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all employees of the East Rockaway Union Free School District in the titles of: Cleaner, Custodian, Maintainer, Groundskeeper, Assistant Head Custodian, Head Custodian I, Head Custodian II, Bus Driver/ Groundskeeper and Bus Driver/Cleaner. All other titles are excluded. (C-5657, 12/29/08)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all custodial, grounds, maintenance and food service employees, including Cooks, Assistant Cooks, Laundresses and Couriers of the Marlboro Central School District. All other titles are excluded. (C-5664, 12/29/08)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the representative of all permanent full-time and permanent part-time employees of the Sachem Central School District in the titles of: Custodial Worker, Groundsmen, Head Custodian, Sr. High Head/Jr. High Chief, Head Groundsmen, Automobile Mechanic, Maintenance Mechanic, Chief Custodian, Athletic Groundskeeper, Driver/Messenger, Console Operator, Roving Guard, Bus Driver, Cook, Supervisory Cook, Food Service Worker, Bus Monitors, Sr. High Chief, Cook Manager/Sr. High, Cook Manager/Jr. High, Security Guard, Watchman and Assistant Cook. All other titles are excluded. (C-5659, C-5669, 12/29/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the representative of all permanent Security Guards employed by the Rockville Centre Union Free School District. Excluded from the unit are all casual, per diem and substitute Security Guards and all other employees. (C-5684, 12/29/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of all full-time and part-time Security Aides employed by the Port Washington Union Free School District. Excluded from the unit are Substitute Security Aides and all other employees. (C-5689, 12/29/08)

CLINTON COUNTY DEPUTY SHERIFF'S POLICE BENEVOLENT ASSOCIATION has been certified as the exclusive representative of employees of the County of Clinton in the following titles: Deputy Sheriff, Deputy Sheriff Corporal, Deputy Sheriff Sergeant, Deputy Sheriff Lieutenant and Deputy Sheriff Detective. All other titles excluded. (C-5718, 12/29/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of employees of the Chatham Central School District in the following titles: Account Clerk, Clerk-Typist, Clerk, Network Systems Support Aide, Payroll Clerk, Secretary 1 and Senior Typist. All other titles excluded. (C-5731, 12/29/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of employees of the Village of Old Westbury in the Department of Public Works, Highway Department and Water Department including Water Servicer, Foreman, Motor Equipment Operator, Water Plant Operator, Laborer and Water Plant Attendant. All other titles excluded. (C-5740, 12/29/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of all full-time and part-time employees of the Village of East Hills Department of Public Works in the title of Laborer (including Crew Chief). The following titles are excluded from the unit: Sanitation Foreman, Highway Foreman, Assistant Superintendent, Superintendent and all other employees. (C-5748, 12/29/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of all permanent, full-time and part-time members of the custodial, grounds and maintenance staff of the Valley Stream Union Free School District No. 30 including Head Custodian, Assistant Head Custodian, Cleaner, Custodian/Groundskeeper, Plumbing and Electrical Maintenance Mechanic, Skilled Maintainer, Maintenance Supervisor, Building Attendant and Messenger. Excluded from the unit are seasonal and casual employees and all other employees. (C-5761, 12/29/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of all permanent, full-time and part-time members of the custodial, grounds and maintenance staff of the Valley Stream Union Free School District No. 13 including Head Custodian, Assistant Head Custodian, Cleaner, Custodian/ Groundskeeper, Plumbing and Electrical Maintenance Mechanic, Skilled Maintainer, Maintenance Supervisor, Building Attendant and Messenger. Excluded from the unit are seasonal and casual employees and all other employees. (C-5762, 12/29/08)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all full and half-time employees of the Mineola Memorial Library. Excluded from the unit are confidential employees, Library Pages, temporary, seasonal or part-time employees. (C-5786, 12/29/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified as the exclusive representative of all supervisory and professional employees of the Niagara Falls Housing Authority in the following titles: Clerk of the Works-Modernization; Maintenance Foreman; Senior Services Coordinator; Superintendent of Maintenance and Modernization; Teacher and Teachers' Assistant. All other titles excluded. (C-5787, 12/29/08)

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Representation

LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS AND VILLAGE OF RYE BROOK. The Board dismissed the petition of the Teamsters to represent certain employees of the Village after the results of an election among the employees in the proposed unit indicated that a majority of the eligible employees in the unit did not desire to be represented by the Teamsters. (C-5621, 5/20/08)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE) AND NEW YORK STATE POLICE INVESTIGATORS ASSOCIATION, LOCAL 4, IUPA, AFL-CIO. The Board dismissed the petition of the PBA to represent certain employees of the State of New York (Division of State Police) after the results of an election among the employees in the proposed unit indicated that a majority of the eligible employees in the unit did not desire to be represented by the PBA. (C-5636, 05/20/08)

LOCAL 30, I.U.O.E., AFL-CIO AND HUDSON RIVER PARK TRUST. The Board dismissed the petition of Local 30 to represent certain employees of the Trust after the results of an election among the employees in the proposed unit indicated that a majority of the eligible employees in the unit did not desire to be represented by Local 30. (C-5792, 7/3/08)

MOUNT MORRIS CENTRAL SCHOOL ADMINISTRATORS ASSOCIATION AND MOUNT MORRIS CENTRAL SCHOOL DISTRICT. The Board reversed a decision of an Administrative Law Judge (ALJ) that had concluded that two principals and an assistant principal in a small school district were not managerial under the Act. The Board reached its conclusion based on the size of the District along with the evidence in the record establishing that the principals and assistant principal are required to attend Board meetings and participate in executive sessions where personnel matters such as hiring, tenure and discipline are discussed. In addition, the evidence established that the three administrators serve in the superintendent's absence and make decisions about school closings and evacuations. Therefore, the Board found the administrators to be managerial and dismissed the representation petition seeking to represent them. (C-5663, 8/8/08)

THOMAS DINARDO, JR. AND NEW YORK CITY TRANSIT AUTHORITY. The Board granted the petition of Thomas DiNardo, Jr. seeking to decertify District Council 37, Local 983, AFSCME, AFL-CIO (DC 37) as the exclusive representative of certain employees of the New York City Transit Authority after the results of an election among the employees in the unit indicated that a majority of the eligible employees who cast valid ballots no longer desire to be represented for purposes of the collective negotiations by DC 37. (C-5815, 11/26/08)

JAMES J. WHITE AND VILLAGE OF SCARSDALE. The Board dismissed the petition of James J. White seeking to decertify Local 456, International Brotherhood of Teamsters (IBT), as the exclusive representative of certain employees of the Village of Scarsdale after the results of an election among the employees in the unit indicated that a majority of the eligible employees in the unit desire to be represented. (C-5804, 12/29/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF COLUMBIA. The Board dismissed the certification/ decertification petition of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA) seeking to decertify United Public Service Employees Union (UPSEU) as the exclusive representative of certain employees of the County of Columbia after the results of an election among the employees in the unit indicated that a majority of the eligible employees in the unit desire to be represented by UPSEU. (C-5722, 12/29/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND VALLEY STREAM UNION FREE SCHOOL DISTRICT No. 24. The Board dismissed the certification/decertification petition of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA) seeking to decertify Local 74, United Service Workers Union, IUJAT (Local 74) as the exclusive representative of certain employees of the Valley Stream Free School District No. 24 after the results of an election among the employees in the unit indicated that a majority of the eligible employees desire to be represented by Local 74. (C-5763, 12/29/08)

BARBARA A. HARGRAVE AND CAMPBELL-SAVONA CENTRAL SCHOOL DISTRICT. The Board dismissed the petition of Barbara A. Hargrave seeking to decertify Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA) as the exclusive representative of certain employees of the Campbell-Savona Central School District after the results of an election among the employees in the unit indicated that a majority of the eligible employees in the unit desire to be represented by CSEA. (C-5788, 12/29/08)

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Management / Confidential

NO ARCHIVED MANAGEMENT / CONFIDENTIAL BOARD Decision Summaries FOR 2008.

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Improper Practices

LAKE MOHEGAN PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 2956, IAFF, AFL-CIO AND LAKE MOHEGAN FIRE DISTRICT. The Board affirmed the decision of the Administrative Law Judge (ALJ) granting the motion to dismiss the improper practice charge filed by the Association alleging that the District violated 209-a.1 (d) of the Public Employees' Fair Employment Act (Act) when it unilaterally modified its policy with respect to the dispatch of a District vehicle in response to certain calls. The Board reiterated its prior holdings that it will affirm an ALJ's decision to grant a motion to dismiss an improper practice charge at the close of the charging party's case where the evidence produced by the charging party, after granting all reasonable inferences, is plainly insufficient to warrant a finding that the charge should be sustained. Here, granting all reasonable inferences to the Association's evidence, the Board found that the District's slight change in the dispatch of the back-up vehicle was related to deployment of staff, a nonmandatory subject of negotiations, and not safety, a mandatory subject. The Board determined that, just as the level of staffing assigned to an employer's vehicle is nonmandatory, even though it may implicate employee safety, the District's minor change in the deployment of the back-up vehicle and the employee assigned to it, in response to non-critical calls, is nonmandatory. (U-26743, 1/23/08)

BERNADETTE DANNA AND ROCHESTER TEACHERS ASSOCIATION. The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing the charge, as deficient. It alleged that the Association violated 209-a.2(c) of the Public Employees' Fair Employment Act (Act) when it decided not to arbitrate Danna's contract grievance seeking personal injury benefits under the collectively negotiated agreement. Reiterating that an employee organization is entitled to a wide range of reasonable discretion with respect to the processing of grievances under the Act, the Board found that the Association did not violate the Act when it decided not to pursue the grievance to arbitration. The Association had carefully reviewed the record of the grievance, made an informed decision and advised Danna of its position. Therefore, the Board concluded that the Association had not acted in a manner that was arbitrary, discriminatory or in bad faith. (U-27886, 3/5/08)

KAREEN DELAHAYE AND AMALGAMATED TRANSIT UNION AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK.. The Board affirmed the decision of the Director dismissing the charge filed by Delahaye alleging that the ATU violated 209-a.2 (c) of the Act when it allegedly failed to properly represent her during an April 25, 2007 disciplinary conference held pursuant to Chancellor's Regulation C100 of the District. Delahaye's improper practice charge was filed on October 11, 2007 alleging that the ATU did not provide her with proper representation at the disciplinary conference. The Board, therefore, found the improper practice charge to be untimely because it was filed over four months following the alleged improper practice by the ATU. (U-27908, 3/5/08)

MANHASSET EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION, NYSUT, AFT, AFL-CIO AND MANHASSET UNION FREE SCHOOL DISTRICT. The Board affirmed the decision of the ALJ finding that the District violated the Act when it unilaterally subcontracted its bus transportation services to private contractors. The Board rejected the District's argument that the notice of claim filed by the Association was untimely. In the alternative, the Board held that a notice of claim, pursuant to Education Law 3813, was not required by the Act. The Board also determined that substitute bus drivers were included in the bargaining unit by virtue of the language of the recognition clause and the parties' treatment of them. The Board then examined the appropriate legal standards for determining transfer of unit work cases under the Act including proposed standards urged by the parties and five amici. Reiterating that the subcontracting of bargaining unit work, for economic or other reasons, constitutes a mandatory subject of negotiations under the Act where there is no curtailment in the level of services, the Board found that the District had improperly subcontracted its bus transportation and maintenance services. Utilizing a past practice analysis, the Board held that the transportation of public school students to and from the District's schools, along with transportation for athletic and field events and summer school, constituted exclusive bargaining unit work. along with the maintenance, repair and refueling of District buses and other District vehicles. Having defined the unit work, the Board rejected the District's other defenses and found that the District had violated the Act by unilaterally subcontracting exclusive bargaining unit work to a private contractor. (U-26091, 4/3/08)

ANTONIO JENKINS 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 affirmed the decision of the ALJ dismissing the improper practice charges filed by Jenkins against the District and his bargaining agent, UFT, alleging that the District violated the Act by threatening him with poor evaluations for filing two grievances and alleging that UFT failed to properly represent him in the processing of two grievances claiming that the denial of the music teacher assignment violated the DistrictUFT collectively negotiated agreement. The Board held that although Jenkins made out a prima facie case of a violation of 209-a.1(a) and (c), the District had rebutted any inference of improper motivation by establishing a valid business reason for Jenkins' assignment and its handling of his grievances. In reaching its decision, the Board examined the applicable burdens of proof and persuasion in a case alleging violations of 209-a.1(a) and (c). The Board also found that UFT did not violate the duty of fair representation in handling an initial grievance filed by Jenkins and by thereafter deciding not to pursue a second, identical, grievance to arbitration, having been unsuccessful at arbitration of the first grievance. (U-26822, 4/3/08)

SULLIVAN COUNTY PATROLMAN'S BENEVOLENT ASSOCIATION, INC. AND COUNTY OF SULLIVAN and SULLIVAN COUNTY SHERIFF. The Board affirmed the decision of the ALJ finding that the County violated the Act by unilaterally implementing a system for the recovery of leave accruals and holiday pay which a unit employee allegedly owed to the County and by deducting vacation, sick leave and personal leave from the employee's leave accrual. The Board found that the ALJ properly retained jurisdiction over the charge, which alleged violations of 209-a.1(a), (c), (d) and (e) of the Act. The ALJ dismissed the (a) and (c) allegations for failure of proof and did not defer the (d) and (e) allegations, even though a decision with respect to those allegations necessitated interpretation of the expired collectively negotiated agreement. The Board discussed and clarified both its jurisdictional and merits deferral policies regarding (d) and (e) allegations. The Board affirmed the ALJ, finding that neither jurisdictional nor merits deferral was appropriate in this case because the ALJ had already decided the (a) and (c) allegations, the parties were holding the arbitration of the related grievance in abeyance pending the outcome of the improper practice proceeding and the County was not seeking deferral. Reaching the merits of the case, the Board held that the County violated 209-a.1(d) and (e) of the Act when it unilaterally deducted leave accruals and set up a noncontractual procedure for recouping holiday pay from an employee who had been on GML 207 leave intermittently over the course of several months. (U-26725, 4/3/08)

CITY OF OSWEGO FIREFIGHTERS ASSOCIATION, IAFF, LOCAL 2707 AND CITY OF OSWEGO. The Board affirmed the decision of the Assistant Director finding that the City violated 209-a.1(a) and (d) of the Act when it unilaterally eliminated a practice that permitted bargaining unit employees to wash and wax their personal vehicles in City fire stations during work time. The Board found that a unit member's personal use of the City's fire stations to wash and wax their vehicles is a mandatory subject. The Board also determined that there was an enforceable past practice established because the uninterrupted length of the past practice was more than sufficient to establish that unit members had a reasonable expectation that the past practice would continue and to create a rebuttable presumption that the City had acquiesced in or condoned the practice. Further, the Board found that the Fire Chief's awareness and acceptance of the practice for six years, combined with his managerial and supervisory authority under the department's rules and regulations, were sufficient to bind the City with respect to the past practice. However, the Board modified the Assistant Director's remedial order, because the stipulation between the parties describing the scope of the past practice was limited to the City permitting unit members to wash and wax their personal vehicles in the fire stations but did not include the City providing the materials necessary to do so. (U-27221, 5/20/08)

HAMPTON BAYS TEACHERS' ASSOCIATION, NYSUT, AFT, AFL-CIO AND HAMPTON BAYS UNION FREE SCHOOL DISTRICT. The Board affirmed the decision of the ALJ finding that the District violated 209-a.1(a) and (d) of the Act when it refused the Association's requests for certain information and documents it sought for the investigation of a potential grievance and, following the filing of the grievance, for its processing on behalf of a probationary teacher. The Board reiterated that, under the Act, an employee organization has a general right to receive documents and information, requested from an employer, for use by the employee organization in collective negotiations, the resolution of negotiation impasses and the administration of agreements including, but not limited to, the investigation of a potential grievance, the processing of a grievance and in the preparation for a grievance hearing and/or arbitration. This general right to receive requested documents and information is subject to three primary limitations: reasonableness, relevancy and necessity. The Board rejected the District's arguments that the Association's request for information and documents was not reasonable, relevant or necessary under the Act because it allegedly related solely to procedures under Education Law 3031 and that the Association lacked a legitimate contractual basis under the agreement to request information and documents. The Board found that the Association's request was reasonable, relevant and necessary to the investigation into and processing of the grievance based upon the negotiated procedures applicable during the course of a teacher's probationary period. (U-26980, 5/20/08)

UNITED COLLEGE EMPLOYEES OF FASHION INSTITUTE OF TECHNOLOGY AND FASHION INSTITUTE OF TECHNOLOGY. The Board affirmed the decision of the ALJ that FIT violated 209-a.1(d) of the Act when it unilaterally changed a past practice of paying day adjunct faculty represented by UCE on the basis of 16 weeks of work, thereby reducing their salaries by onesixteenth. Finding that a cognizable past practice of payment for 15 weeks of instruction and one week of registration had existed for almost 30 years established a reasonable expectation that it would continue unchanged, the Board rejected FIT's argument that it had no actual or constructive knowledge of the practice. The amount in the annual budget represented by the 16th week, the actions of management employees in approving both payroll and the budget along with the longevity of the practice were considered by the Board. The Board also found that the practice involved wages and the method for calculating the payment of salary, both mandatory subjects of negotiations. Finally, the Board rejected FIT's argument that the payment for the 16th week, during which little or no duties might be performed, was an unconstitutional gift of public monies. (U-27057, 5/20/08)

DISTRICT COUNCIL 37, AFSCME, LOCAL 1070 AND STATE OF NEW YORK - UNIFIED COURT SYSTEM. The Board affirmed the ALJ's decision that UCS violated 209-a.1(a) and (d) of the Act when it refused DC 37's request for documents and information for its representation of a bargaining unit member subject to a notice of charges issued pursuant to the disciplinary procedures contained in the UCSDC 37 collectively negotiated agreement. The Board found that the charge was timely because each denial of a request for information gives rise to a separate violation of the Act. Reiterating the obligation under the Act of an employer to provide an employee organization with reasonable, relevant information necessary for the negotiation and administration of collectively negotiated agreements and the processing of grievances, the Board found that this general right to receive requested information extends to an employee organization's representation of an employee who is the subject of discipline under the negotiated terms of an agreement. The Board held that "there is no meaningful distinction under the Act between a negotiated disciplinary grievance procedure and one calling for the filing of an answer in response to a notice of charges. Whether disciplinary action can be grieved, answered and/or appealed under a negotiated procedure, an employee organization has a duty to administer that provision under the Act. It follows that in order to fulfill that duty, an employee organization is entitled to receive, upon request, relevant and necessary information in order to effectively represent a member charged." The Board modified the ALJ's order, however, by finding that DC 37's request for "all documents, including without limitation, any memoranda between any UCS agents" regarding the aggrieved employee was overly broad, unduly burdensome and unnecessary. (U-27031, 5/20/08)

TRANSPORT WORKERS UNION OF GREATER NEW YORK, LOCAL 100 AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the ALJ dismissing a portion of an improper practice charge filed by TWU alleging that NYCTA violated the Act by unilaterally imposing a uniform requirement based on NYCTA's duty satisfaction defense. The Board found that the contract provision, relied upon by NYCTA in support of its defense, was susceptible to more than one reasonable interpretation. Therefore, the Board, applying standard principles of contract interpretation, considered parol evidence in the record. Based on the parol evidence, the Board concluded the contract provision constituted a specifically negotiated term with respect to uniforms, satisfying NYCTA's obligation to negotiate the subject under the Act.

The Board, however, reversed the ALJ's decision to dismiss that portion of TWU's charge alleging that NYCTA failed to negotiate over the subject of bulletproof vests. The ALJ found that TWU had abandoned that portion of the charge by failing to discuss the issue in its posthearing brief. In reversing the ALJ, the Board cited 212.5 of the Rules of Procedure that states closing briefs are, in general, discretionary. Therefore, the Board concluded that the mere fact that TWU did not fully address the issue of bulletproof vests in its posthearing brief did not establish an intention by TWU to abandon its claim. (U-27600, 7/3/08)

BERNICE MALCOLM AND HONEOYE FALLS-LIMA CENTRAL SCHOOL DISTRICT AND HONEOYE FALLS-LIMA EDUCATION ASSOCIATION, NYSUT. The Board denied exceptions filed by Malcolm from decisions of the Director dismissing three improper practice charges alleging that the District and the Association had violated the Act. The exceptions were denied because the District and the Association were not served with the exceptions within the time period required under the Rules of Procedure (Rules). The Board reiterated that, under the Rules, timely service of exceptions upon all other parties constitutes a necessary component for the timely filing of exceptions. (U-28121, U-28122 & U-28123, 7/3/08)

RONALD GRASSEL AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board denied a motion by Grassel for leave to file interlocutory exceptions for the disqualification of an ALJ. The motion was denied by the Board because Grassel had failed to demonstrate extraordinary circumstances warranting the grant of leave and he failed to identify a nonfinal ruling by the ALJ that he sought to have reviewed. In addition, the Board concluded that the motion was premature because the ALJ had not yet ruled on a pending motion for recusal. (U-28124, 7/3/08)

ALBANY POLICE OFFICERS UNION LOCAL 2841, COUNCIL 82, AFSCME, AFL-CIO AND CITY OF ALBANY. The Board affirmed, in part, and reversed, in part, the decision of an ALJ finding that the City of Albany violated 209-a.1(d) of the Act when it unilaterally implemented new procedures with respect to requests by bargaining unit members to use accrued compensatory time and incidental leave. The Board found that the unilateral implementation of a 30 day limitation on when requests may be submitted and a 14 day rule on when supervisors can begin to act upon such requests constitute mandatory subjects of negotiations because they impose new procedural restrictions on supervisory discretion as to whether to grant or deny such leave requests. However, the Board reversed the ALJ and sustained the City's contract reversion defense with respect to a 48 hour rule for when employees will be notified if their request has been granted. The Board concluded that the 48 hour rule is necessitated by the City's decision to revert to the contract's voluntary overtime provisions, which includes a 48 hour posting requirement, to cover for compensatory leave requests. The Board found that the City's legitimate reversion to the voluntary overtime procedure also permitted it to unilaterally institute the procedure of holding certain leave requests in abeyance until the opportunity for voluntary overtime expires 48 hours before a shift. (U-27333, 8/8/08)

POLICE BENEVOLENT ASSOCIATION OF ELMIRA, NEW YORK, INC. AND CITY OF ELMIRA. The Board affirmed the decision of an ALJ dismissing an improper practice charge as untimely. The charge alleged that the City of Elmira had violated the Act by unilaterally imposing a rule requiring PBA bargaining unit members to call police headquarters two hours prior to an off-duty court appearance in response to a subpoena. The Board found that the ALJ did not abuse her discretion under the Rules of Procedure (Rules) to adjourn the hearing at the close of the PBA's case for the purpose of determining the timeliness of the charge. In addition, the Board denied the PBA's exception, premised on 212.4(l) of the Rules, that challenged the ALJ's authority to determine the issue of timeliness prior to the City presenting evidence with respect to its affirmative defense. Finally, granting all reasonable inferences to the evidence presented by the PBA in its prima facie case, the Board found that the PBA had actual knowledge of the implementation of the new procedure more than four months before it filed the charge and the PBA had failed to demonstrate that the City is equitably estopped from asserting the timeliness defense. (U-27466, 8/8/08)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF COLUMBIA. The Board affirmed a decision of an ALJ rejecting an employer's duty satisfaction and waiver defenses to a charge alleging a violation of 209-a.1(d) of the Act when the employer created a new shift for certain employees in the bargaining unit. The Board reiterated that in determining whether an agreement contains a provision satisfying the duty to negotiate or constituting a waiver of the right to negotiate, the Board will apply standard principles of contract interpretation. The Board concluded that the contract language relied upon by the employer was not reasonably clear based upon inconsistent, if not contradictory, terms and phrases utilized by the parties in two relevant articles of the agreement. Finally, the Board rejected the employer's waiver argument finding that language cited by the employer did not constitute a clear, unmistakable and unambiguous waiver of the right to negotiate the creation of a new shift. (U-26761, 9/24/08)

DR. SIMPSON GRAY AND UNITED FEDERATION OF TEACHERS. The Board denied the motion by Dr. Simpson Gray (Gray) for leave to file exceptions from an interim ruling of an ALJ to not process a second amendment to Gray's charge alleging a breach of the duty of fair representation. The Board concluded that extraordinary circumstances did not exist for granting the motion because Gray had failed to demonstrate that the interim ruling would result in a denial of due process or undue prejudice. (U-28282, 9/24/08)

RONALD GRASSEL AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed a decision of an ALJ dismissing a charge filed by Ronald Grassel (Grassel) alleging that his employer violated 209-a.1(a) of the Act by delaying his reinstatement following the withdrawal of disciplinary charges. The Board found that although Grassel presented evidence demonstrating that he engaged in protected activity known to his employer, he failed to present sufficient proof establishing a causal connection between the protected activity and the delay in his reinstatement. Furthermore, the Board affirmed the ALJ's decision to deny Grassel's motion to amend the charge and reopen the record. (U-27502, 9/24/08)

VICTOR MALTSEV AND DISTRICT COUNCIL 37, AFSCME, AFL-CIO. The Board reversed the conclusion of an ALJ that Victor Maltsev (Maltsev) lacked standing to pursue a duty of fair representation charge against an employee organization for its handling of a grievance he filed prior to his retirement. However, the Board affirmed the ALJ's decision to dismiss the charge concluding that the employee organization's failure to process the charge to arbitration was well within its wide discretion under the Act and that Maltsev's charge was untimely. (U-27372, 9/24/08)

TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY SUPERIOR OFFICERS BENEVOLENT ASSOCIATION, ET AL AND TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY. The Board denied the motions by two employee organizations for leave to file exceptions from interim rulings of an ALJ denying their respective requests for issuance of agency subpoenas and for an adjournment of the scheduled hearing. In denying the motions, the Board found that the denial of the requests for subpoenas did not constitute extraordinary circumstances under the facts and circumstances presented. In addition, the Board found that the employee organizations failed to establish that they have been or would be prejudiced by the refusal of the ALJ to adjourn the hearing. (U-28072, U-28267, 9/24/08)

NORTH COLONIE TEACHERS ASSOCIATION, NYSUT/AFT/ NEA/AFL-CIO AND NORTH COLONIE CENTRAL SCHOOL DISTRICT. The Board affirmed a decision of an ALJ dismissing an improper practice charge filed by the North Colonie Teachers Association (Association) alleging that the North Colonie Central School District (District) violated 209-a.1(d) of the Act when the District adopted a school calendar for the 2007-08 school year that included 188 work days. Based upon the evidence in the record, the Board concluded that the Association had failed to meet its burden of proof of establishing an enforceable past practice in the number of work days within a school year. The Board found that the Association had failed to rebut the District's evidence establishing that the District applies consistent objective factors resulting in a fluctuation in the respective number of work days each year. These objective factors include annual variables linked to the general calendar year, including the number of work days in each calendar month and the days of the week when certain holidays fall. (U-27717, 11/26/08)

RONALD GRASSEL AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board denied motions by Ronald Grassel (Grassel) and the Board of Education of the City School District of the City of New York (District) for leave to file exceptions challenging prehearing rulings of an ALJ. Grassel's motion sought leave to file exceptions challenging the ALJ's denial of his motion for recusal or, in the alternative, for the Board to remove the ALJ for cause; Grassel also moved for leave to challenge the ALJ's denial of his motion for particularization and his application for subpoenas. Both the District and Grassel sought leave to file exceptions to the ALJ's denial of the District's motion to dismiss the charge. In denying Grassel's motion, the Board found that Grassel failed to meet his burden of demonstrating extraordinary circumstances by presenting facts and circumstances establishing that the ALJ has a personal bias or is otherwise incapable of processing the charge in an impartial manner. In addition, the Board found that Grassel did not identify any facts and circumstances that would warrant the removal of the ALJ. Finally, the Board found that extraordinary circumstances did not exist for the grant of leave to file exceptions to the ALJ's denial of the motions for particularization and dismissal and the denial of the application for issuance of subpoenas. (U-28124, 11/26/08)

DANIEL FARREY AND DISTRICT COUNCIL 37, AFSCME, AFL-CIO. The Board affirmed the decision of an ALJ dismissing a duty of fair representation charge filed by Daniel Farrey (Farrey) against District Council 37 (DC 37) with respect to negotiated provisions of an agreement relating to the federal Fair Labor Standards Act (FLSA). The Board found that Farrey's challenge to the contract provision purporting to exempt a title in a negotiation from FLSA coverage was untimely and outside the scope of his charge. The Board also denied Farrey's exceptions challenging the negotiated modification to the compensatory time program concluding that Farrey had failed to demonstrate that DC 37 acted arbitrarily, discriminatorily or in bad faith. Finally, the Board rejected Farrey's exceptions challenging DC 37's agreement not to pursue FLSA litigation reiterating that an employee organization is granted wide discretion under the Act to agree not to pursue particular claims so long as the employee organization is not improperly motivated. (U-27677, 11/26/08)

DUTCHESS UNITED EDUCATORS AND DUTCHESS COMMUNITY COLLEGE. The Board affirmed the decision of an ALJ dismissing two charges filed by the Dutchess United Educators. The first charge alleged that the Dutchess Community College violated 209-a(d) of the Act by failing to negotiate, upon a demand, the impact of an academic assessment plan and for allegedly engaging in direct dealing with bargaining unit members. The second charge alleged additional acts of direct dealing in violation of 209-a.1(a) and (d) of the Act. The Board ruled that the ALJ had the authority to dismiss the direct dealing allegations based upon the insufficiency of the allegations in the charges. Following a review of the record, the Board found that a reasonable inference cannot be drawn from the evidence that Dutchess Community College negotiated with or attempted to negotiate directly with members of the bargaining unit aimed at reaching an agreement. The Board reiterated that the duty to negotiate with an exclusive representative does not, in general, prohibit the employer from disseminating information and documents to members of a negotiation unit so long as it is not aimed at impeding negotiations or subverting the fundamental rights of employees to organization and representation under the Act. In affirming the dismissal of the alleged failure to negotiate the impact of the academic assessment plan, the Board found that the short delay in commencing impact negotiations, following receipt of the demand, did not constitute a violation of 209-a.1(d) of the Act. Finally, the Board upheld the ALJ's exclusion of evidence related to what transpired during the two impact negotiations sessions following the initial delay because it was outside the scope of the charge. (U-27107, U-27371, 11/26/08)

LEVI MCINTYRE AND MIDDLE ISLAND ADMINISTRATORS ASSOCIATION. The Board affirmed the decision of an ALJ dismissing, as untimely, a duty of fair representation charge filed by Levi McIntyre (McIntyre). The duty of fair representation charge alleged that the employee organization had violated the Act by agreeing to a new 12 step salary schedule and placing him at the top of the schedule. In affirming the ALJ, the Board found that the alleged violation of the Act accrued on or before the date McIntyre sent a letter to the president of the employee organization complaining of the salary disparities resulting from the new step schedule. McIntyre's charge was filed well beyond the four month filing period following his letter. (U-27349, 11/26/08)

MARY LOU HILOW AND ROME CITY SCHOOL DISTRICT, ET AL. The Board affirmed a decision by the Director of Public Employment Practices and Representation (Director) dismissing three improper practice charges filed by Mary Lou Hilow (Hilow), as untimely, following his initial review of the charges pursuant to 204.2(a) of PERB's Rules of Procedure. The Board found that the alleged violations of the Act accrued in 1989 and Hilow's subsequent pursuit of other statutory and administrative remedies since that time did not toll the four-month filing period. (U-28316, U-28317, U-28318, 11/26/08)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DIVISION OF PAROLE). The Board affirmed, in part, and reversed, in part, a decision of an ALJ with respect to an improper practice charge alleging that an employer violated 209-a.1(a) and (c) of the Act by issuing and pursuing nine disciplinary charges against a shop steward for the content of his off-duty e-mail to bargaining unit members. In the e-mail, the shop steward set forth his interpretation of a contract provision with respect to working on a weekday holiday and encouraged bargaining unit members to report to work on the holiday and seek premium pay for that work. The ALJ found that the e-mail was protected activity and that the issuance and pursuit of a disciplinary charge against the shop steward for the content of the e-mail violated the Act. The ALJ dismissed the remainder of the charge. On exceptions, the Board affirmed the ALJ's conclusion that the e-mail constituted protected activity finding that the employer failed to meet its burden of demonstrating that the e-mail was intentionally false, maliciously aimed at injuring the employer or that it is undeniably frivolous. In addition, the Board affirmed the ALJ's conclusion that the disciplinary charge, with respect to the content of the e-mail, violated the Act. However, the Board reversed the ALJ, in part, and concluded that the employer violated the Act by issuing and pursuing a second disciplinary charge against the shop steward for going to work on the holiday, and seeking premium pay, consistent with his e-mail. (U-26734, 11/26/08)

HELEN MCCONNELL AND STATE OF NEW YORK-UNIFIED COURT SYSTEM. The Board granted the motion by Helen McConnell (McConnell) for leave to file exceptions challenging an interim ruling by an ALJ staying the scheduling of a hearing on her charge alleging a violation of 209-a.1(a) of the Act until a merits decision was made by her employer with respect to disciplinary charges it issued against her. After concluding that the parties had sufficiently briefed the relevant issues to enable the Board to rule on the exceptions, the Board ruled that the ALJ erred in suspending the processing of the charge over the objection of McConnell because such a suspension constitutes the functional equivalent to a conditional deferral dismissal which is inappropriate in an animus case. However, upon remand, the ALJ is authorized to set a reasonable schedule, applicable to both parties, for the further processing of the charge. (U-28522, 12/29/08)

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Declaratory Rulings

NO ARCHIVED BOARD DECLARATORY RULINGS FOR 2008.

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Strikes

NO ARCHIVED STRIKE BOARD Decision Summaries FOR 2008.

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Local Procedures

NO ARCHIVED LOCAL PROCEDURES BOARD Decision Summaries FOR 2008.

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Other Matters

CITY OF BINGHAMTON AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL UNION NO. 693. The Board denied, on jurisdictional grounds, the City's exceptions to an arbitration decision and award of PERB's Assistant Director of Conciliation, sustaining a grievance filed by the Teamsters. The Assistant Director was assigned to the case pursuant to PERB's staff grievance mediation/arbitration procedure, voluntarily participated in by the City and the Teamsters. Because both the guidelines for the mediation/arbitration procedure, as well as the applicable agency form, state explicitly that an arbitration decision and award issued by a staff member may only be challenged through a proceeding commenced pursuant to CPLR 7511 and not through exceptions to the Board pursuant to 213.2 of the Rules, the Board held that the parties had waived any right to file exceptions with the Board to arbitration awards issued pursuant to the procedure. (G2007-003, 1/23/08)

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Decision Summaries of the Office of Public Employment Practices and Representation


Representation

DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO AND THE MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY. The ALJ granted a unit placement petition, without objection, placing the title of part-time transit customer service specialist into the petitioner's bargaining unit. (ALJ Maier, CP-1127, 1/9/08)

GREATER SOUTHERN TIER BOCES ADMINISTRATORS ASSOCIATION AND GREATER SOUTHERN TIER BOARD OF COOPERATIVE EDUCATIONAL SERVICES. An election was ordered where the petitioner's unit was found to be too narrow and the BOCES' proposed unit of all unrepresented administrators was found to be the most appropriate unit. The petitioner's assertion that there existed a unique and distinguishable community of interest was rejected in favor of the creation of the largest unit which permits for effective and meaningful negotiations. (ALJ Doerr, C-5651, 1/10/08)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF COLUMBIA. The ALJ held that the position of Controller is not encompassed within the incumbent union's collective bargaining unit, but that the Nutrition Services Coordinator is. He relied on the recognition clause which defined the collective bargaining unit as all county employees except those holding positions at the deputy or deputy director level, concluding that the Controller functions at that level, while the Nutrition Services Coordinator does not. (ALJ Quinn, CP-1033, 1/30/08)

UNITED COLLEGE EMPLOYEES OF FASHION INSTITUTE OF TECHNOLOGY AND FASHION INSTITUTE OF TECHNOLOGY. UCE filed a unit clarification and/or placement petition seeking a finding that the positions of Eric Hertz, Program Director of the Executive Studies Program,;James Hanley, Deputy Director of the Museum at FIT; and Joseph Arcoleo, Director of Environmental Health and Safety Compliance; are in or should be placed in the bargaining unit it represents. The ALJ dismissed the unit clarification portion of the petition, since the positions are not mentioned in the collectively negotiated agreement's recognition clause, which is title specific. The ALJ granted placement with respect to Hanley's position, but dismissed the petition with respect to Hertz and Arcoleo upon the finding that they qualify to be designed as managerial policy formulators pursuant to 201.7(a) of the Act. Hertz and Arcoleo were found to qualify as managerial, although neither is at the highest level of the employer's hierarchy, because FIT has granted each wide discretion in their areas of significant responsibility. Arcoleo creates health and safety policies on a campus-wide level and he implements those policies with little or no oversight. Hertz is responsible for creating the Executive Studies Program, selecting and assigning faculty, developing its curriculum and implementing program changes. The ALJ noted that Hertz wielded greater authority over the curriculum of his program than do the Chairpersons over the curricula of their departments, since the program does not confer a degree and is not subject to the layers of oversight that regulate the curricula of degree conferring programs. Hertz also has greater authority over the selection and assignment of faculty, as he is not restricted, as Chairpersons are, by the collectively negotiated agreement. The ALJ rejected UCE's argument that Hertz should be in its unit because the head of another, similar, program is already in its unit. The ALJ noted that the other position was included in the unit based upon the parties' agreement, not pursuant to a determination by PERB, and that such agreements are not binding upon PERB, which must reach its determination based upon the statutory criteria. (ALJ Blassman, CP-939, 2/7/08)

DISTRICT COUNCIL 37, AFSCME, AFL-CIO, LOCAL 1070 and STATE OF NEW YORK- UNIFIED COURT SYSTEM AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ placed the title secretary to judge into the DC 37 unit, since there was a community of interest between that title and the employees represented by DC 37. The evidence showed that there was a similarity in wages, benefits and other terms and conditions of employment, and that any differences did not give rise to a conflict between the two groups of employees. The fact that incumbents to the title are appointed by a judge does not alter this conclusion. (ALJ Maier, CP-1095, 2/27/08)

MT. MORRIS SCHOOL DISTRICT ADMINISTRATORS ASSOCIATION AND MT. MORRIS CENTRAL SCHOOL DISTRICT. The District's objections to a petition for certification of a bargaining unit of school administrators were dismissed. The administrators were found not to be managerial as the work performed is highly circumscribed by law, regulation, or established District policies and the majority of tasks assigned are carried out by committees facilitated by the administrators. Administrators' work product is subject to review by the superintendent prior to presentation to the Board and her administrative style does not allow for independent decisionmaking. Having rejected all other arguments asserted in support of a finding of managerial status, that the administrators are expected to fill in for the superintendent in her absence, standing alone, could not form a basis for dismissing the petition. (ALJ Doerr, C-5663, 3/20/08)

SERVICE UNIT ASSOCIATION OF OWEN D. YOUNG CENTRAL SCHOOL DISTRICT AND OWEN D. YOUNG CENTRAL SCHOOL DISTRICT. An ALJ granted a unit clarification petition filed by the Association, finding that the Computer Network Administrator position was the same as the Network Administrator position listed in the recognition clause of the parties' agreement and was therefore in the bargaining unit. (ALJ Burritt, CP-1111, 4/2/08)

KENNETH CARPENTER AND LOUIS MEDINA AND ROCHESTER-GENESEE REGIONAL TRANSPORTATION AUTHORITY AND AMALGAMATED TRANSIT UNION, LOCAL 281. The Director dismissed the petition because the declaration of authenticity did not comply with the requirements set forth in 201.4 of the Rules of Procedure. (Director Klein, C-5791, 4/4/08)

GREENPORT TEACHERS' ASSOCIATION AND GREENPORT UNION FREE SCHOOL DISTRICT. The ALJ granted unit clarification and found the position of Teaching Assistant to be included in the professional/ teachers unit that the Association represents. Clarification was granted as unopposed, based upon the District's failure to appear at the conference and respond to the ALJ's directives. The ALJ held that a plain reading of the language of the recognition clause in the parties' collectively negotiated agreement, which recognizes the Association as the representative of a unit of "all professional certificated personnel except administrators," supported the granting of clarification. (ALJ Blassman, CP-1125, 4/23/08)

DUTCHESS UNITED EDUCATORS AND DUTCHESS COMMUNITY COLLEGE. The Director dismissed the petition for unit clarification inasmuch as the proposed ruling was beyond the purpose of such petition. (Director Klein, CP-1158, 7/10/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND BALDWIN UNION FREE SCHOOL DISTRICT. CSEA filed a petition seeking to represent Security Aides in a separate unit. The District opposed the petition. The ALJ found that the Security Aides were most appropriately added to the existing School Monitors and Health Aides unit represented by CSEA. A community of interest was found to exist based upon a similarity in mission, skill level and working conditions. The ALJ rejected CSEA's argument that a conflict of interest was created by CSEA's initiation of litigation that challenged the District's assignment of certain duties to Security Aides instead of School Monitors. Also rejected was CSEA's argument that a conflict existed because the Security Aides perform a security function. The ALJ noted that the Security Aides are not charged with the primary duty of investigating or reporting the job related misconduct of District employees, but to protect students and District employees from outside intruders. The ALJ placed the position in the existing unit pursuant to New York Convention Center Operating Corp, 27 PERB 3034 (1994), since there was no contractual bar to the placement and adding the position effectuated a de minimus change to the unit. (ALJ Blassman, C-5690, 8/19/08)

ADMINISTRATIVE PROFESSIONALS GROUP AND CAYUGA COUNTY COMMUNITY COLLEGE. The ALJ certified a unit of previously unrepresented professional administrative employees of the College, but excluded four of the employees the union sought to include. The College had filed an application for the designation of those four employees as managerial. The ALJ designated three of the administrators as managerial on the basis of their policy formulation activities, but refused to designate a fourth. The fourth administrator was, however, excluded from the unit as a high level supervisor because the work performed included the supervision of fourteen subordinate positions, the majority of which were in the proposed unit. (ALJ Burritt, C-5630 & E-2410, 11/14/08)

UPSTATE NEW YORK COURT OFFICERS ASSOCIATION, STATE OF NEW YORK - UNIFIED COURT SYSTEM AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. In accordance with Judiciary Law 39.7, absent consent of all parties concerned PERB is without authority to effect the changes petitioned for in the CSEA State Judiciary Unit. The petition is, therefore, dismissed without consideration of the uniting issues raised. (ALJ Doerr, C-5750, 11/25/08)

ST. PAUL BOULEVARD PROFESSIONAL FIREFIGHTERS ASSOCIATION AND ST. PAUL BOULEVARD FIRE DISTRICT. A fire lieutenant was added to a unit of firefighters notwithstanding the Fire District's assertion that he was a high level supervisor and did not share a community of interest with employees in the bargaining unit. The lieutenant's supervisory duties were not sufficiently significant to create conflict and the similarity in benefits, as well as a shared occupational identity and mission between the lieutenant and firefighters, rendered his placement appropriate. (ALJ Doerr, CP-1110, 9/4/08)

LONG BEACH CLASSROOM TEACHERS ASSOCIATION AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF LONG BEACH AND LONG BEACH ADMINISTRATIVE SUPERVISORY AND PUPIL PERSONNEL. The Director dismissed the petition for unit clarification placement inasmuch as the title is already included in a bargaining unit. (Director Klein, CP-1169, 9/10/08)

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Management / Confidential

EASTPORT/SOUTH MANOR CENTRAL SCHOOL. Where the purchasing agent had confidential relationship to managerial employee in his performance of managerial responsibilities, a confidential designation was warranted. (ALJ Cacavas, E-2446, 2/7/08)

TOWN OF HAMBURG. The Town's application to designate the Police Chief and two Assistant Police Chiefs as managerial was granted on a finding that all of them participated jointly with development of departmental policies and procedures; and all three assisted directly in collective negotiations as part of the Town's Team. (ALJ Doerr, E-2444, 2/29/08)

CITY OF NEWBURGH. The administrative law judge designated Ann Morrill, senior typist, 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 Carlson, E-2449, 5/2/08)

CITY OF NEWBURGH. The administrative law judge designated Mimi Naclerio, senior typist, 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 Carlson, E-2450, 5/2/08)

LANSINGBURGH CENTRAL SCHOOL DISTRICT. The administrative law judge designated Deborah McCormick, purchasing agent, 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 Carlson, E-2440, 5/30/08)

NORTH SALEM CENTRAL SCHOOL DISTRICT. The ALJ designated Margaret Ianniello, secretary to the Assistant Superintendent for Instruction and Human Resources, as confidential, noting that the employee organization that represents the title did not object to the designation and that the factual averments in the application may support such a designation. (ALJ Wlasuk, E-2451, 7/3/08)

DUTCHESS COMMUNITY COLLEGE. The ALJ designated Bridget Anderson, Associate Dean of Administration/Campus Facilities Management, as managerial, noting that the employee organization that represents the title consented to the designation and that the factual averments in the application may support such a designation. (ALJ Wlasuk, E-2441, 7/22/08)

SACHEM CENTRAL SCHOOL DISTRICT AND UNITED PUBLIC SERVICE EMPLOYEES UNION. Cynthia Carvajal, Senior Account Clerk Typist, Carol Burns, Senior Stenographer, and Barbara Waidler, Secretary to the Superintendent, were designated as confidential based on evidence that their duties and responsibilities satisfied the criteria enumerated in 201.7(a) of the Act. (ALJ Cacavas, E-2460, 9/23/08)

SHENENDEHOWA CENTRAL SCHOOL DISTRICT. The ALJ designated Robert Melia, Assistant Superintendent of Management Services and Quality Control, Teresa Thayer Snyder, Deputy Superintendent for Curriculum, Instruction, Support & Accountability, and Kathleen Wetmore, Chief Financial Officer, as managerial, and Jodie Gilheany, Budget Analyst, as confidential, noting that the employees (all unrepresented) consented to their designations and that the factual averments in the application may support such designations. (ALJ Wlasuk, E-2455, 9/25/08)

CONNETQUOT CENTRAL SCHOOL DISTRICT. The District's application, seeking to designate Karen Belvedere and Catherine Federico, both Senior Clerk-Typists reporting to the Assistant Superintendent for Personnel, as confidential within the meaning of 201.7(a) of the Act was granted upon the consent of the Connetquot Clerical Association. (ALJ Blassman, E-2453, 10/17/08)

BROOKHAVEN-COMSEWOGUE UNION FREE SCHOOL DISTRICT. The District's application, seeking to designate Mary Flaherty, Senior Stenographer who serves as Secretary to the Assistant Superintendent for Business, as confidential within the meaning of 201.7(a) of the Act was granted upon the consent of CSEA. (ALJ Blassman, E-2458, 10/17/08)

STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). Upon consent, two of the State of New York's Clerk 2 positions were designated as confidential pursuant to 201.7 of the Act. (ALJ Comenzo, E-2407, 10/21/08)

ROOSEVELT CHILDREN'S ACADEMY CHARTER SCHOOL. The District's application to designate the Superintendent as managerial and the Administrative Assistant to the Superintendent as confidential was granted where the parties consented to the designations and the factual averments in the application supported such designations. (Director Klein, E-2466, 11/4/08)

LAKELAND CENTRAL SCHOOL DISTRICT. Where Elaine Colagiovanni, the secretary to the Assistant Superintendent for Business and Support Services, had a confidential relationship to a managerial employee in his performance of managerial responsibilities, a confidential designation was warranted. (ALJ Wlasuk, E-2445, 12/12/08)

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Improper Practices

UNITED COLLEGE EMPLOYEES OF FASHION INSTITUTE OF TECHNOLOGY AND FASHION INSTITUTE OF TECHNOLOGY. UCE's charge, alleging that FIT violated 209-a.1(a) and (d) of the Act when it unilaterally required unit employees to submit medical documentation for the use of medical leave for periods of one week or more, was deferred to a pending contractual grievance raising the same issue as the charge. (ALJ Blassman, U-27667, 1/24/08)

CITY OF OSWEGO FIREFIGHTERS ASSOCIATION, IAFF, LOCAL 2707 AND CITY OF OSWEGO. As the washing and waxing of personally owned vehicles at specified times at the City's fire stations by unit employees was a long standing, open practice, as the personal use of employer's facilities and equipment by unit employees and engagement in non-work activities during the work day are mandatory subjects of bargaining, as the head of the department knew of and, in fact, approved the prior practice, and as the City rescinded said practice unilaterally, the City was found to have violated its duty to negotiate under 209-a.1(d) of the Act. Citing Chenango Forks Central School District, 40 PERB 3012 (2007), the ALJ found no circumstances requiring "additional proof of knowledge or acquiescence" by higher managerial employees, particularly that of the mayor, as alleged by the City. The City's argument that the parties' collectively negotiated agreement and department regulations gave the mayor the right to make the at-issue change was not considered as it constituted a claim of duty satisfaction, which must be, and was not, raised in the answer as an affirmative defense. The ALJ noted that even if properly raised as a defense, it would fail as the sections of the collectively negotiated agreement and the rules were insufficient to support it. (Assistant Director Comenzo, U-27221, 1/25/08)

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 a uniform requirement and by not bargaining concerning a demand for bullet-proof vests. The ALJ found that the NYCTA satisfied its duty to bargain by virtue of a contract clause which stated that where the NYCTA requires an employee to be in uniform, the NYCTA will supply the uniform. The union failed to address the other allegation in its brief and it was, therefore, deemed abandoned. (ALJ Maier, U-27600, 1/30/08)

AMALGAMATED TRANSIT UNION AND NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC. A charge alleging a change in NFT Metro's procedures as applied to a unit employee attempting to return to work following a medical leave of absence, which was also the subject of a grievance filed pursuant to the provisions of the parties' collectively negotiated agreement, was deferred pursuant to the Board's decision in Herkimer County BOCES, 20 PERB 3050 (1987). (ALJ Fitzgerald, U-27775, 2/14/08)

NORTH TONAWANDA SCHOOL ADMINISTRATORS ASSOCIATION AND NORTH TONAWANDA CITY SCHOOL DISTRICT. An improper practice charge which alleged a unilateral change in work year was deferred on the basis that a grievance was pending pursuant to the parties' grievance procedure under the collectively negotiated agreement. As the charge was based on the same facts asserted in the grievance, the charge was deferred in accordance with the Board's decision in Herkimer County BOCES, supra. (ALJ Fitzgerald, U-27954, 2/14/08)

NORWICH EDUCATORS ASSOCIATION, NYSUT AND NORWICH CITY SCHOOL DISTRICT. Where the collectively negotiated agreement between the parties requires teachers to perform professional duties after students are dismissed, the district did not violate the Act by requiring teachers to supervise students participating in an afterschool club between student dismissal and the beginning of the club session, despite a past practice of not requiring teachers to perform this function. (ALJ Burritt, U-27592, 2/15/08)

ALBANY POLICE OFFICERS UNION, LOCAL 2841, LAW ENFORCEMENT OFFICERS UNION, COUNCIL 82, AFSCME, AFL-CIO AND CITY OF ALBANY. An improper practice charge challenging new policies unilaterally instituted by the police department which established time frames for requesting and responding to requests by patrol officers for compensatory or incidental time off and conditioned approval of such a request on coverage by another officer working voluntary overtime were dismissed, in part,and sustained, in part, by the ALJ. The decision of the department to no longer use mandatory overtime to cover for these absences is not a mandatory subject of negotiations, and this part of the charge was dismissed. The department's unilateral decision to institute new procedures, including time limits for requesting time off and waiting until 48 hours prior to the time requested to respond, is a violation of the Act. (ALJ Burritt, U-27333, 2/15/08)

IRMA GONZALEZ AND MTA BUS COMPANY. The Director dismissed a charge alleging that the employer violated the Act when it terminated an employee because it was devoid of facts which would establish improper motivation. (Director Klein, U-28097, 2/21/08)

ANTHONY SEDITA AND TOWN OF HEMPSTEAD AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the charge alleging that the parties improperly failed to arbitrate a grievance as untimely. (Director Klein, U-28081, 2/21/08)

LORI M. LORUSSO AND MANHASSET EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION, AND NEW YORK STATE UNITED TEACHERS, AND MANHASSET UNION FREE SCHOOL DISTRICT. The Director dismissed the charges as being untimely and because NYSUT is not an employee organization within the meaning of the Act. (Director Klein, U-28021, 2/21/08)

ONONDAGA COUNTY DEPUTY SHERIFFS' POLICE ASSOCIATION, INC. AND COUNTY OF ONONDAGA AND SHERIFF. A charge alleging that the County, when it recalculated the health insurance premium equivalent rate for Association members, used different criteria resulting in a contribution by Association members higher than for some other groups of County employees, was dismissed in its entirety. Since there was no change in the practice by which the premium equivalent rate was calculated, there was no failure to bargain. In addition, since the employee contribution to the premium equivalent was a percentage of that rate, the mere change in the dollar amount of the contribution did not constitute a failure to continue a term of an expired agreement. (ALJ Burritt, U-27351, 2/27/08)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, COUNCIL 82, AFSCME, AFL-CIO, LOCAL 2841 AND CITY OF ALBANY. The City was found to have had violated its duty to negotiate by unilaterally replacing a portion of a work rule prohibiting the off-duty consumption of "intoxicating beverages" rendering employees unfit to report for their regular tours of duty with one prohibiting consumption of such beverages within eight hours of reporting for such tours of duty. Defenses based on employer mission and the Second Class Cities Law were without merit, the former due to lack of evidence on the two elements necessary to that defense and the latter because the Second Class Cities Law is not a special law and therefore does not statutorily supersede the collective bargaining obligations of the Public Employees' Fair Employment Act. (Assistant Director Comenzo, 2/28/08, U-27105)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, NEW YORK COUNCIL 66, LOCAL 1783-C, AFL-CIO AND VILLAGE OF WILLIAMSVILLE. An improper practice charge alleging that the Village violated 209-a.1(a) and (c) of the Act when it eliminated the position of a laborer weeks after he filed a grievance, was dismissed by the ALJ. While the filing of a grievance is protected activity, the complained of action could not have been taken in retaliation for that activity, where the record established that the proposal to eliminate the position as a part of a DPW reorganization had been adopted by the Mayor and the Village Board prior to the filing of the grievance. (ALJ Fitzgerald, U-27451, 2/29/08)

JEANNE M. NOLAN AND RUSH-HENRIETTA EMPLOYEES' ASSOCIATION - PARAPROFESSIONALS CHAPTER. The ALJ dismissed a charge which alleged that the Association violated its duty of fair representation when it refused to file a grievance on Nolan's behalf. Based upon facts determined during the pre-hearing conference which were not contested by Nolan, and her offer of proof, the charge was dismissed due to her failure to demonstrate that the Association's actions were arbitrary, discriminatory or taken in bad faith. (ALJ Doerr, U-27483, 2/29/08)

NYS DOCS (FISHKILL C.F.). The ALJ held that the employer interfered with protected rights by conveying a message to a union official that the employer bore animus toward the exercise of rights that are protected under the Act. Furthermore, the ALJ held that the employer unlawfully directed an employee to perform duties in his capacity as union official on behalf of the employer. (ALJ Quinn, U-26907, 2/29/08)

UNITED FEDERATION OF TEACHERS AND NEW YORK CITY BOARD OF EDUCATION. Where Department of Corrections (DOC) operated a prison facility within which the Board of Education of the City School District of the City of New York (District) provided instruction to inmates, the District did not violate the Act in adhering to DOC regulations and policies. As a result, when a teacher, who was also a chapter leader, violated a DOC policy against undue familiarity with inmates, his removal from the site at DOC's direction was not violative of the Act. In addition, the displacement of the chapter leader did not constitute unlawful interference by the District since his reassignment was required by DOC. Furthermore, the evidence established that not all locations within the District have an onsite chapter leader and the union had unfettered discretion in deciding how to service members in the absence of the chapter leader who had been removed. (ALJ Cacavas, U-26426, 3/4/08)

FREEPORT TEACHERS ASSOCIATION, NYSUT, AFT, AFL-CIO AND FREEPORT UNION FREE SCHOOL DISTRICT. The Association filed a charge alleging that the District violated 209a.1(d) of the Act when it unilaterally increased teachers' daily instructional time, causing a decrease in unassigned time and an increase in workload. The ALJ deferred the charge, over the District's objection, finding that the District's disagreement regarding the proper interpretation of the collectively negotiated agreement, including whether it provides a source of right to the Association, was a matter best addressed through the contractual grievance mechanism. (ALJ Blassman, U-27885, 3/5/08)

RAIMUNDO TORRENCE AND UNITED FEDERATION OF TEACHERS, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An ALJ dismissed a charge at the close of the charging party's case for failure to state a prima facie case. Assuming the truth of the evidence presented, and granting it all favorable inferences, the evidence failed to demonstrate that the UFT acted in an arbitrary, discriminatory or bad faith manner. The charging party alleged that the UFT failed to file a grievance on his behalf and lost documents that he had sent to it. This evidence, without more, failed to satisfy the requisite standard to prove a breach of the duty of fair representation, and the charge was therefore dismissed. (ALJ Maier, U-27486, 3/11/08)

PROFESSIONAL, CLERICAL, TECHNICAL EMPLOYEES ASSOCIATION AND BUFFALO CITY SCHOOL DISTRICT. Proceeding on a stipulated record, an ALJ dismissed an improper practice charge against the Buffalo City School District which alleged that the District had violated the Act when it employed a stenographer to transcribe a grievance arbitration hearing without notice to or approval by the Association. The ALJ concluded that the District was privileged to revert to the terms of the collective bargaining agreement which incorporated by reference PERB's Rules permitting any party to an arbitration to use a stenographer, despite a ten year practice of not transcribing arbitration hearings. (ALJ Burritt, U-27385, 3/17/08)

OWEGO POLICE BENEVOLENT ASSOCIATION AND VILLAGE OF OWEGO. An ALJ conditionally dismissed a charge that the Village had violated the Act when it unilaterally established two new shifts and transferred exclusive unit work on those new shifts to parttime police officers, deferring to a pending grievance proceeding between the parties on the same subject. (ALJ Burritt, U-28016, 3/19/08)

OLAND SALTES AND STATE OF NEW YORK (OFFICE OF TEMPORARY DISABILITY SERVICES). An ALJ held that the State violated the Act when a supervisor denied a personal leave request due to Saltes having filed grievances. The ALJ concluded that Saltes engaged in protected activity and that the supervisor was aware of this activity. The grievances were filed shortly before the adverse action taken by the supervisor. That factor, together with other circumstantial evidence, lead to the conclusion that the adverse action was taken because of the protected activity. Saltes' testimony was unrebutted with regard to the fact that the supervisor was aware of the protected activity. The State asserted that the supervisor was merely following policy when he denied the request, but the unrebutted evidence demonstrated that the policy had never been previously followed. (ALJ Maier, U-27408, 3/21/08)

ARTHUR PENNEFATHER AND NEW YORK STATE COURT OFFICERS ASSOCIATION. The Director dismissed the charge alleging that the Association breached its duty of fair representation because there were no facts to arguably establish the Association's conduct as arbitrary, discriminatory or in bad faith. (Director Klein, U-28185, 3/25/08)

BERNICE MALCOLM AND HONEOYE FALLS-LIMA CENTRAL SCHOOL DISTRICT AND HONEOYE FALLS-LIMA EDUCATION ASSOCIATION, NYSUT. The Director dismissed a charge alleging that the employer violated the Act because individuals lack standing to allege breaches of the subdivisions allegedly violated and it was devoid of facts which would establish improper motivation. (Director Klein, U-28121, 3/25/08)

BERNICE MALCOLM AND HONEOYE FALLS-LIMA CENTRAL SCHOOL DISTRICT AND HONEOYE FALLS-LIMA EDUCATION ASSOCIATION, NYSUT. The Director dismissed a 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 and because individuals lack standing to allege breaches of the other subdivisions of the Act that were allegedly violated. (Director Klein, U-28122, 3/25/08)

BERNICE MALCOLM AND HONEOYE FALLS-LIMA CENTRAL SCHOOL DISTRICT AND HONEOYE FALLS-LIMA EDUCATION ASSOCIATION, NYSUT. The Director dismissed a charge alleging that the employer violated the Act because it was devoid of facts including a clear identification of the conduct alleged to constitute the violation and also because individuals lack standing to allege breaches of those subdivisions of the Act that were allegedly violated. (Director Klein, U-28123, 3/25/08)

ANGELO SOLLA AND MTA BUS COMPANY. The Director dismissed the charge alleging that the employer violated 209a.1(f) of the Act because it alleged no facts to arguably establish conduct falling within the purview of the subdivision of the Act. (Director Klein, U-28167, 3/26/08)

ANGELO SOLLA AND AMALGAMATED TRASNIT UNION, LOCAL 1181. The Director dismissed a charge alleging, as amended, that the Union violated 209a.2(b) of the Act, inasmuch as individual employees lack standing to allege a breach of that subsection. (Director Klein, U-28166, 3/26/08)

RANDOLPH CENTRAL SCHOOL SERVICE STAFF ASSOCIATION AND RANDOLPH CENTRAL SCHOOL DISTRICT TEACHERS ASSOCIATION AND RANDOLPH CENTRAL SCHOOL DISTRICT. Improper practice charges alleging a unilateral change in retiree health insurance benefits for new employees hired on or after July 1, 2005 were dismissed by the ALJ as untimely filed. The charging parties had notice that the Board of Education had made a change to the policy by the issuance of a summary of Board actions from the District Clerk to all employees including officers of the Associations. The Associations' failure to inquire of the specifics of the change does not extend the fourmonth filing timeline. (ALJ Fitzgerald, U27174 & U-27175, 3/27/08)

PLATTSBURGH PERMANENT FIREMEN'S ASSOCIATION, LOCAL 2421, IAFF AND CITY OF PLATTSBURGH. An ALJ dismissed an improper practice charge alleging that the City instituted a new requirement that all vacation time earned in a given year must be used before the end of the following year, deferring to a pending grievance proceeding between the parties on the same subject. (ALJ Burritt, U-28168, 3/31/08)

BRIAN BURKE AND MTA/NYC TRANSIT. The Director dismissed the charge as untimely and because it lacked a clear and concise statement of the facts sufficient to arguably establish a violation. (Director Klein, U-28203, 4/3/08)

JILL M. PENC AND STATE OF NEW YORK (DEPARTMENT OF TAXATION AND FINANCE) AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the charge as amended as against both respondents inasmuch as it appeared untimely, was devoid of facts to arguably establish a violation and was in some respects beyond PERB's jurisdiction. (Director Klein, U-28228, 4/16/08)

HEMPSTEAD SCHOOL ADMINISTRATORS ASSOCIATION AND HEMPSTEAD UNION FREE SCHOOL DISTRICT. Improper practice charge filed more than a year and a half after Association knew of the complainedof action was barred by the period of limitations. The District's willingness to discuss the matter and investigate the Association's claims did not toll the filing period. Even if the charge was not dismissed for its untimeliness, it failed on the merits where there was no proof of an established practice whereby administrators who were returned to their positions after a special assignment maintained the higher salary level of the temporary post. In fact, the District's proof showed that the practice was the opposite of what the Association claimed. In addition, the District's agreement to investigate the Association's position and engage in discussion, despite its ultimate refusal to compensate employees as requested by the Association, did not evidence bad faith. Further, there was no proof of any intent by the District to interfere with protected rights. (ALJ Cacavas, U-27319, 4/18/08)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF COLUMBIA. An ALJ sustained an improper practice charge alleging that the County of Columbia unilaterally created a new eighthour shift for cleaning County buildings and unilaterally assigned a UPSEUrepresented member to work that new shift. The County's defense of duty satisfaction was rejected because the contractual provision on which the County relied was insufficient to allow a finding that the parties had negotiated and reached agreement on work hours and shift selection. (ALJ Burritt, U-26761, 4/22/08)

TOWN OF RIVERHEAD AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, RIVERHEAD TOWN BARGAINING UNIT, SUFFOLK LOCAL 852. An ALJ dismissed a charge alleging that the Town violated the Act by transferring exclusive bargaining unit work to nonunit employees. The ALJ held that some of the work had not been performed exclusively and that the evidence did not demonstrate that there had been a change in the duties performed by nonunit personnel. The ALJ also held that, as to other work which had been transferred, there had been a change in the qualifications of the employees doing that work. Applying the balancing test, the ALJ held that the Town was privileged to transfer the work in issue. (ALJ Maier, U-26552, 4/23/08)

NIAGARA FALLS POLICE CLUB, INC., CITY OF NIAGARA FALLS AND TEAMSTERS LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEAMSTERS. An improper practice charge alleging that the City of Niagara Falls violated 209a.1(d) of the Act by unilaterally transferring the exclusive bargaining unit work of booking and holding male prisoners in the detention center, from police officers to civilian detention aides, was dismissed. In balancing the interests of the parties, the City's interest in staffing the detention center with civilian employees for purposes of redeploying its police force to more critical areas of need was found to outweigh the actual impact on unit employees. There was no loss of positions or benefits to unit personnel; the effect of the transfer of work was the reassignment of those officers currently working in the detention center to another assignment consistent with their seniority in the unit. The impact on both the unit and the affected individuals was found to be minimal when compared to the benefit to the City in adding four additional officers to patrol. (ALJ Fitzgerald, U-26776, 4/25/08)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DIVISION OF PAROLE). An ALJ held that the employer unlawfully interfered with protected rights when it initiated disciplinary charges against an employee, a union official, in response to his communication to fellow unit members regarding what he believed the parties' collective bargaining agreement permitted. According to the ALJ, that the employee may have been incorrect in his interpretation of the contract did not diminish the protected status of the communication. (ALJ Quinn, U-26734, 5/5/08)

PLUMBERS LOCAL UNION NO. 1, U.A., AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An ALJ dismissed a charge on timeliness grounds which had been remanded by the Board. The Board had stated that at the close of the union's case in the original hearing, the record did not permit that the charge be dismissed because there was not sufficient evidence to indicate that the union shop was sufficiently authorized to represent the union. Therefore, according to the Board, notice of the alleged subcontracting could not be attributed to the union. After the hearing on remand, the ALJ determined that the record demonstrated that the shop steward was acting on the union's behalf and that the union therefore had notice of the transfer of unit work more than four months prior to the filing of the charge. Accordingly, the charge was dismissed. (ALJ Maier, U-25883, 5/12/08)

DANIEL FARREY AND DISTRICT COUNCIL 37, AFSCME, AFL-CIO. An ALJ dismissed a charge alleging that the union breached its duty of fair representation by agreeing to a clause in a collective bargaining agreement and by entering into a side letter agreement with the employer. Since the evidence failed to demonstrate that the agreements were the result of arbitrary, discriminatory or bad faith conduct on the part of the union, the charge was dismissed. (ALJ Maier, U-27677, 5/22/08)

POLICE BENEVOLENT ASSOCIATION OF ELMIRA, NEW YORK, INC. AND CITY OF ELMIRA. An ALJ held that an improper practice charge filed on March 22, 2007 was untimely when measured from the either date the union was first notified of the new work rule or from the effective date of the new rule, and dismissed the charge. The City, by special order dated July 11, 2006, unilaterally implemented a new work rule "effective immediately" requiring police officers under subpoena to call in to headquarters within two hours prior to the scheduled appearance to verify that their presence was still necessary, which was intended to reduce guaranteed overtime. The fact that the City and the PBA continued to discuss the callin procedure following its implementation did not toll the filing period, nor was the PBA induced not to file a charge by the City's willingness to review the efficacy of the new rule. (ALJ Burritt, U-27466, 5/22/08)

DUTCHESS UNITED EDUCATORS AND DUTCHESS COMMUNITY COLLEGE. Two improper practice charges were filed alleging, as amended, a violation of 209a.1(d) of the Act when the employer refused to negotiate the impact of its decision to require College faculty members to comply with an academic assessment plan. The second charge contained no new allegations and was dismissed by the ALJ. The first charge was also dismissed because, while the College attempted to delay impact negotiations, the delay was only a matter of eight days, and the parties did thereafter engage in impact negotiations and are in the midst of the statutory impasse procedures on the issue. (ALJ Burritt, U-27107 & 27371, 5/23/08)

RONALD GRASSEL AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Where charging party in an interference case provided no evidence of intent by the respondent to interfere with protected rights for the purpose of depriving employees thereof, the claim must fail absent conduct so chilling that motivation is imputed. A district's failure to immediately restore charging party to a teaching position upon its withdrawal of disciplinary charges against him, in and of itself, establishes no violation of the Act. The charging party's reference to the district's alleged failure, some 12 years earlier, to investigate the tearing down of union posters is not only dated but insufficient to establish the intent required under the statute. (ALJ Cacavas, U-27502, 5/27/08)

VICTOR MALTSEV AND DISTRICT COUNCIL 37, AFSCME, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. Where retired employee filed a charge against his union more than two Years after the date of his retirement, he lacked standing as a public employee and a member of the bargaining unit and PERB lacked jurisdiction over his claim. While case law does provide that in some circumstances where severance from employment is contested a union's representation duties continue, such was not the case at hand. In addition, charges filed more than four months from the date of the challenged action are barred by the period of limitations. Finally, a union's refusal to take a case to arbitration does not constitute a violation of the Act absent a showing that the decision was arbitrary, discriminatory or made in bad faith. (ALJ Cacavas, U-27372, 5/28/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, WESTCHESTER COUNTY LOCAL 860, UNIT 9200 AND COUNTY OF WESTCHESTER. An ALJ conditionally dismissed a charge alleging that the County of Westchester violated the Act when it issued an Executive Order that barred certain employees from holding more than one county job, required certain employees to inform their superiors they were engaged in outside employment and required employees to complete a form relating to any outside employment, deferring to the parties' contractual grievance procedures. (ALJ Carlson, U-27489, 5/28/08)

AMALGAMATED TRANSIT UNION LOCAL NO. 1342 AND NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC. A charge alleging that Niagara Frontier Transit Metro System, Inc. violated the Act when it hired a private contractor to replace wash racks in the rail station, work alleged to be exclusive unit work, was deferred. A grievance had also been filed on the same facts alleging a violation of the provisions of the parties' collectively negotiated agreement, therefore the charge was deferred pursuant to the Board's decision in Herkimer County BOCES. (ALJ Fitzgerald, U-28143, 5/29/08)

AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, LOCAL 650, AFL-CIO AND CITY OF BUFFALO. The ALJ deferred the charge alleging a change in the practice of granting requests for leave without pay, noting that the charging party had filed a grievance under the parties' expired collectively negotiated agreement which provides for binding arbitration. (ALJ Doerr, U-28275, 6/6/08)

MICHAEL LUCCHESSE AND TRANSPORT WORKERS UNION OF GREATER NEW YORK, LOCAL 100, AFL-CIO. The charge, alleging that the TWU breached its duty of fair representation towards Lucchesse, was dismissed by the ALJ based upon Lucchesse's refusal to prosecute the charge. The charge alleged that the TWU violated 209a.2(c) when it treated him differently from other unit employees during a training session and caused his pay to be docked. Lucchesse appeared for the hearing, but refused to go on the record and walked out of the hearing room, although he had been advised that no adjournment would be granted. Lucchesse also failed to respond to the ALJ's letter requesting good and sufficient reason for his failure to proceed on the day of hearing. (ALJ Blassman, U-27622, 6/18/08)

WESTCHESTER COUNTY CORRECTION OFFICERS BENEVOLENT ASSOCIATION AND ROBERT DELBENE AND ALONZO WEST AND LANE JAMES YOUNG AND COUNTY OF WESTCHESTER. The ALJ dismissed the charge's allegations that the County violated 209a.1(a) and (c) of the Act when it allegedly interfered with the charging parties' right of access to attend a preshift briefing and when it allegedly retaliated against COBA's officers by investigating and initiating disciplinary action against COBA's president. The ALJ allowed the charging parties to amend the charge at the beginning of the hearing, because the timelyfiled charge referenced the possible future action of initiation of disciplinary charges and it, therefore, sufficiently put the County on notice that the issue might be raised. The access allegation was dismissed upon the ALJ's finding that the Act does not accord an employee organization the right to stand directly in the lineup/briefing area for the purpose of investigating a possible contractual violation. The charges were also dismissed on the ground that the charging parties failed to prove that the County was improperly motivated when it took action during the lineup and when it investigated and initiated disciplinary charges against COBA's president. (ALJ Blassman, U-27020, 6/20/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, CLINTON COUNTY LOCAL 884 AND COUNTY OF CLINTON. An ALJ conditionally dismissed a charge alleging that the County had violated the Act when it unilaterally implemented a new work schedule, deferring to a pending grievance proceeding between the parties on the same subject. (ALJ Wlasuk, U-27793, 6/24/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, CLINTON COUNTY LOCAL 884 AND COUNTY OF CLINTON. An ALJ conditionally dismissed a charge alleging that the County had violated the Act when it unilaterally subcontracted the exclusive bargaining unit work of janitorial services at the Clinton County Airport to nonunit personnel, deferring to a pending grievance proceeding between the parties on the same subject. (ALJ Wlasuk, U-27794, 6/24/08)

NORTH COLONIE TEACHERS ASSOCIATION, NYSUT/ AFT/NEA/AFL-CIO and NORTH COLONIE CENTRAL SCHOOL DISTRICT. The ALJ dismissed a charge alleging that the District violated 209a.1(d) of the Act when it adopted a calendar for the 200708 school year requiring teachers to work 188 days rather than 186 days. The school calendars in evidence established that the teachers' scheduled work years varied from 184 to 186 days. In the absence of any evidence that limiting the school year to 186 or fewer teacher work days was part of the District's scheduling process, the Association failed to establish an unequivocal past practice. (ALJ Burritt, U-27717, 6/24/08)

AMALGAMATED TRANSIT UNION, LOCAL DIVISION 1321 AND CAPITAL DISTRICT TRANSIT SYSTEM, NUMBER ONE; CAPITAL DISTRICT TRANSPORTATION DISTRICT, INC., AND/OR CAPITAL DISTRICT TRANSPORTATION AUTHORITY. The ALJ deferred the charge alleging a change in the criteria and procedures for discipline, noting that the charging party had filed a grievance under the parties' collectively negotiated agreement, which provides for binding arbitration. (ALJ Burritt, U-28263, 6/24/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. An ALJ dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology. The ALJ stated that the Board has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests was not appropriate. In any event, the ALJ found that the arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with offduty time were either inapplicable of had no factual basis. (ALJ Maier, U-26816, 6/26/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU (DEPARTMENT OF PUBLIC WORKS). An ALJ dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology. The ALJ stated that the Board has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests was not appropriate. In any event, the ALJ found that the arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with offduty time were either inapplicable or had no factual basis. (ALJ Maier, U-27544, 6/26/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND VILLAGE OF HEMPSTEAD. An ALJ dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology. The ALJ stated that the Board has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests was not appropriate. In any event, the ALJ found that the arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with offduty time were either inapplicable or had no factual basis. (ALJ Maier, U-27074, 6/26/08)

TOWN OF ORCHARD PARK AND ORCHARD PARK POLICE BENEVOLENT ASSOCIATION. The ALJ dismissed the PBA's improper practice charge alleging that the Town violated 209a.1(d) of the Act when it sought to submit nonmandatory items to interest arbitration. The Town's management rights and past practice proposals converted to mandatory subjects pursuant to City of Cohoes, 31 PERB 3020 (1998) (subsequent history omitted) and were therefore properly submitted to interest arbitration. The Town's association rights provision did not convert as it was mandatory as proposed. The Town's improper practice charge was dismissed as the PBA withdrew all complained of proposals. (ALJ Doerr, U-28046 and U-28082, 7/3/08)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO AND VIVIAN ZAFAR. An ALJ dismissed a charge which alleged that the UFT violated the Act by failing to commence a lawsuit on Zafar's behalf. Since there was no evidence that the UFT acted in an arbitrary, discriminatory or bad faith manner, however, the charge was dismissed. (ALJ Maier, U-27895, 7/10/08)

MARY LOU HILOW AND ROME CITY SCHOOL DISTRICT, ROME TEACHERS ASSOCIATION, INC., AND NEW YORK STATE UNITED TEACHERS. Improper practice charges filed against the employer, the bargaining agent, and the bargaining agent's affiliate were dismissed as untimely, the operative events having occurred primarily in the 1980's, with related activity in the 1990's. The charge against the affiliate was also dismissed on the basis that it is not an employee organization and only public employers and/or employee organizations can be respondents in improper practice charges. (Director Klein, U-28316, U-28317 and U-28318, 7/10/08)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO, AGENCY LAW ENFORCEMENT SERVICES UNIT and STATE OF NEW YORK (GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS). A charge alleging a violation of 209a.1(e) of the Act when the State stopped approving requests for employee organizational leave pursuant to the terms of the expired collectively negotiated agreement was deferred to the binding arbitration procedure under the applicable agreement. The charge would have required an interpretation of the terms of the expired agreement, and an award rendered under the applicable arbitration procedures would potentially be dispositive of the dispute between the parties. (ALJ Burritt, U-28342, 7/17/08)

DEBRA STELZER AND WILLIAM YOUBERG AND STATE OF NEW YORK (OFFICE OF CHILDREN AND FAMILY SERVICES). The charge alleged that the State violated 209a.1(a) and (c) of the Act when, in retaliation for Stelzer's filing a grievance, her supervisors wrote a negative counseling memorandum against Stelzer. As to Youberg, the charge alleged that the State retaliated against him, by terminating his probationary employment, because Youberg had defended Stelzer's right to file a grievance and refused to negatively evaluate Stelzer or otherwise participate in his supervisors' plan to retaliate against Stelzer. The ALJ found that Stelzer's supervisors were motivated by Stelzer's poor performance and attitude, and not her protected activity, when they issued a negative counseling memoranda against her. As to Youberg, the ALJ noted that he had not directly engaged in protected activity, but had only allegedly defended Stelzer's right to file a grievance. The ALJ found that Youberg could not have engaged in protected activity when he defended Stelzer, because the record had failed to demonstrate that his supervisors were improperly motivated against Stelzer. The ALJ noted that Youberg never contemporaneously stated that he thought he was defending Stelzer's right to file a grievance or that he thought that his supervisors were motivated by her protected activity. Instead, the record showed that Youberg disagreed with his supervisors regarding the fairness of issuing a negative evaluation against Stelzer and regarding the quality of Stelzer's performance. The ALJ found that Youberg's disagreement with his supervisors regarding Stelzer's performance did not constitute activity protected under the Act. (ALJ Blassman, U-26059, 7/17/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, CLINTON COUNTY LOCAL 884 AND COUTY OF CLINTON. An ALJ conditionally dismissed a charge alleging that the County had violated the Act when it unilaterally implemented a new work schedule for nurses at the Clinton County Jail, deferring to a pending grievance proceeding between the parties on the same subject. (ALJ Wlasuk, U-28066, 7/17/08)

UNIFORMED FIREFIGHTERS OF COHOES, LOCAL 2562, IAFF, AFL-CIO AND CITY OF COHOES. An ALJ conditionally dismissed a charge alleging that the City of Cohoes violated the Act when it served several employees with notices of discipline for violating City policies that the Union alleges were improperly enacted unilaterally, deferring to the parties' contractual grievance procedures. (ALJ Carlson, U-27987, 7/17/08)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 930, AFL-CIO AND ERIE COUNTY WATER AUTHORITY. An improper practice charge, alleging that the Erie County Water Authority violated the Act by refusing to engage in impact negotiations over a directive permitting employees to use leave time for absences on the date of October 13, 2006, was dismissed. Lack of scheduling of formal negotiations sessions did not constitute a violation where the parties met and resolved the sole impact issue presented, and the Authority further agreed to meet at a date set by AFSCME. Demand for bargaining over the directive was not alleged in the charge and therefore not considered. (ALJ Fitzgerald, U-27379, 7/21/08)

TOWN OF WALLKILL POLICE BENEVOLENT ASSOCIATION, INC. and TOWN OF WALLKILL. A charge alleging a violation of 209a.1(a), (d), and (e) of the Act when the Town unilaterally implemented a local law which created a disciplinary procedure for police officers materially different from the procedure contained in the collectively negotiated agreement was upheld. The ALJ found that the local law, adopted pursuant to the Town Law, was a general law that could not and had not preempted the Act on the subject of police discipline and that the Town had violated 209a.1 (d) and (e) when the local law was implemented. The ALJ rejected the PBA's repudiation claim because, while the Town clearly acted in total disregard of the terms of the collectively negotiated agreement, the Town had at least a colorable legal claim of right. (ALJ Burritt, U-27426, 7/21/08)

DUTCHESS UNITED EDUCATORS AND DUTCHESS COMMUNITY COLLEGE. The Director dismissed the charge alleging that the employer violated the Act when it refused to allow a unit employee to have union representation at a meeting where the employer sought information concerning job duties of subordinate employees. The Director found that there was no reason to believe the employee was subject to discipline. (Director Klein, U-27823, 7/31/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, CATTARAUGUS COUNTY LOCAL 805, CITY OF OLEAN UNIT 6202 ANDCITY OF OLEAN. 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 Doerr, U-28382, 7/31/08).

AMALGAMATED TRANSIT UNION, LOCAL DIVISION 1321 AND CAPITAL DISTRICT TRANSIT SYSTEM, NUMBER ONE; CAPITAL DISTRICT TRANSPORTATION DISTRICT, INC., AND/OR CAPITAL DISTRICT TRANSPORTATION AUTHORITY. The ALJ deferred the charge alleging a change in the criteria and procedures for discipline, noting that the charging party had filed a grievance under the parties' collectively negotiated agreement, which provides for binding arbitration. (ALJ Burritt, U-28263, 6/24/08)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO AND VIVIAN ZAFAR. An ALJ dismissed a charge which alleged that the UFT violated the Act by failing to commence a lawsuit on Zafar's behalf. Since there was no evidence that the UFT acted in an arbitrary, discriminatory or bad faith manner, however, the charge was dismissed. (ALJ Maier, U-27895, 7/10/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, CATTARAUGUS COUNTY LOCAL 805, CITY OF OLEAN UNIT 6202 ANDCITY OF OLEAN. 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 Doerr, U-28382, 7/31/08).

AMALGAMATED TRANSIT UNION LOCAL 1342 AND NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC. The ALJ found that the employer satisfied its duty to bargain regarding its decision to send medical reports to the Workers' Compensation Board. The parties' agreement allows the employer's physician to periodically examine employees on compensable leave. That the results of those examinations are sent to the Compensation Board was found to be a reasonably foreseeable consequence. The ALJ also found that employee privacy interests in the information transferred were not compelling as the Workers' Compensation law provides comprehensive protection of personal medical records. The employer's transfer of medical records of employees on compensable leave to the Workers' Compensation Board was, therefore, found to be nonmandatory. (ALJ Doerr, U-27133, 8/7/08)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1635 AND CITY OF ROCHESTER. A charge alleging, as amended, violations of 209a.1(a) and (c) of the Act was dismissed upon a failure to establish animus as to the several acts of the employer the union complained of. The proof offered was conclusory and based on opinion. The allegation that the employer violated 209a.1(d) of the Act was also dismissed. An employer is under no obligation to provide space for a unionsponsored event. While the proof at hearing established additional facts not pled, there was no motion to conform the pleadings to the proof and those additional facts were not considered. (ALJ Doerr, U-27420, 8/7/08)

ANDREA STASKOWSKI AND NASSAU COMMUNITY COLLEGE FEDERATION OF TEACHERS, LOCAL 3150, NEW YORK STATE UNITED TEACHERS, AFL-CIO AND NASSAU COMMUNITY COLLEGE. The ALJ dismissed a charge which alleged that the union violated its duty of fair representation by not bypassing step 2 of the grievance procedure and by its action in a meeting with the College. The ALJ found that the union exercised the discretion it is afforded under the Act in representing members and since there was no evidence that it acted in an arbitrary, discriminatory or bad faith manner, the charge was dismissed. (ALJ Maier, U-26135, 8/13/08)

LEVI MCINTYRE AND MIDDLE ISLAND ADMINISTRATORS ASSOCIATION AND LONGWOOD CENTRAL SCHOOL DISTRICT. The ALJ dismissed as untimely a charge alleging that the Association violated 209a.2(c) of the Act when, in breach of its duty of fair representation, it agreed to a collectively negotiated agreement that gives McIntyre a lower total wage increase than other unit employees during the life of the agreement. The ALJ rejected McIntyre's arguments that timeliness did not begin to run until he learned of the retirement of the Association's president, who was the only other unit employee who was similarly situated to McIntyre under the agreement. The ALJ also rejected McIntyre's argument that timeliness did not begin to run until the second year of the agreement, which was when McIntyre alleged he was first negatively impacted by the agreement. The ALJ found, instead, that McIntyre was affected by the agreement when the Association agreed to it and that his time to file a charge began to run from the date he learned of its provisions and how they affected him. (ALJ Blassman, U-27349, 8/18/08)

PROFESSIONAL, CLERICAL, TECHNICAL EMPLOYEES ASSOCIATION AND BUFFALO CITY SCHOOL DISTRICT. Improper practice charge, alleging that the District violated the Act when it assigned new outreach duties to the community education leaders in the adult education division was dismissed, as the new duties were found to be included in the job description for the position. (ALJ Fitzgerald, U-27460, 8/19/08)

PROFESSIONAL STAFF CONGRESS, AFT LOCAL 2334 AND CITY UNIVERSITY OF NEW YORK. Where employer refused to provide union with email addresses for employees at work, there was no violation of the Act. Such information is far broader than the home mailing addresses which have been deemed "necessary" for collective negotiations and contract administration. Further, while email addresses make it more convenient for a union to communicate with employees, convenience is not the applicable standard. (ALJ Cacavas, U-27641, 8/19/08)

TOWN OF WALLKILL POLICE BENEVOLENT ASSOCIATION, INC. AND TOWN OF WALLKILL. The ALJ dismissed a charge alleging a violation of 209a.1(a) and (d) when the Town failed to respond to the PBA's letters demanding to know whether the Town Supervisor intended to comply with a local law establishing a disciplinary procedure for police officers different from the procedure contained in the expired collective bargaining agreement. The ALJ held that the failure to respond to the first letter within ten days was not a violation. Further, there was no violation in the failure to respond to the second and third letters because each contained a statement that if there was no response, the PBA would consider silence to mean that the Town would abandon the negotiated procedure in favor of the new legislatively imposed procedure. Under these circumstances, the failure to answer the letters was a response to the information demand. (ALJ Burritt, U-27530, 8/29/08)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An ALJ deferred a charge which alleged that the employer transferred the duty of formal mentoring of first year teachers to nonunit employees. Since the parties' collectively negotiated agreement provided an arguable source of right to the UFT and a grievance was pending on the same issue, the charge was deferred to the parties' grievance procedure pursuant the Board's decision in Herkimer Boces. (ALJ Maier, U-28071, 9/08/08)

MINISINK VALLEY TEACHERS' ASSOCIATION/NYSUT AND MINISINK VALLEY CENTRAL SCHOOL DISTRICT. An ALJ dismissed a charge alleging that the Minisink Valley Central School District violated the Act when it instituted a 34-minute lunch period for teachers at its middle school, finding that the charging party had failed to meet its burden to establish the existence of an enforceable past practice. (ALJ Carlson, U-27213, 9/9/08)

LOCAL 891, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Where evidence establishes a practice of allowing employees to book out of their shifts on blood donation days, without any limitation on the hours taken, the employer violated the Act by prospectively enforcing a ten year old policy which contained said limitation, but had never been enforced. Where the collectively negotiated agreement is not specific to the action charged, the reversion defense is inapplicable. Similarly, an employer may not "revert" to a unilaterally adopted policy or rule. In addition, the Board has recently overruled prior decisions which allowed an employer to defend the alteration of a past practice on the basis that high level managers lacked knowledge of it and thereby acquiesced in it. On a subsection (a) violation, where there was no evidence or argument offered to support the bare allegation, the cause of action fails. Similarly, actions referenced in the parties' post hearing arguments, but not pled in the charge or any amendment thereto, will not form the basis for the finding of a violation. (ALJ Cacavas, U-27711, 9/12/08)

PROFESSIONAL STAFF CONGRESS/CITY UNIVERSITY OF NEW YORK, AFT, LOCAL #2334 AND CITY UNIVERSITY OF NEW YORK. Actions taken in a personal, rather than union, capacity cannot form the basis for a retaliation claim under the Act. On the other hand, status as a grievance counselor is sufficient evidence of protected activity. Nevertheless, where there is no proof that the decision-maker of a challenged action had knowledge of that activity, there is a failure in the prima facie proof. In addition, timing alone and mere speculation as to animus are not sufficient to support a charge. Lastly, a retaliation analysis does not consider the wisdom or propriety of an underlying action, but only whether it was motivated by union animus; as such, a rebuttal witness who was a prior supervisor, who would attest to the productivity of the employee in question at an earlier point in time, and who played no role in the questioned decision or was privy to its rationale is properly excluded. (ALJ Cacavas, U-27829, 9/23/08)

RIVERHEAD CENTRAL FACULTY ASSOCIATION AND THE BOARD OF EDUCATION OF THE RIVERHEAD CENTRAL SCHOOL DISTRICT. Where evidence established that the duties of teachers acting as department heads were also performed by District administrators on a regular basis over a period of years, there was no showing of exclusivity necessary to support a subcontracting claim. Even where the department heads had primary responsibility for a specific activity within a broader task, such activities were not only incidental to the broader duties associated with the function, but were intertwined with the work of administrators. (ALJ Cacavas, U-27164, 9/23/08)

NEW YORK STATE PUBLIC EMPLOYEES FEDERATION AND STATE OF NEW YORK (DIVISION OF PAROLE). An ALJ found that the employer violated the Act by distributing an anonymous letter to unit employees, purportedly from another unit employee, that was highly critical of the union's positions and leadership. The ALJ found that the distribution of the letter was intended to create division within the unit and disloyalty toward its officials. (ALJ Quinn, U-26271, 9/24/08)

DUTCHESS UNITED EDUCATORS AND DUTCHESS COMMUNITY COLLEGE. The Director dismissed a charge alleging that the employer violated the Act because it identified no employer act within four months of the filing of the charge. (Director Klein, U-28511, 9/26/08)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000 AFSCME, AFL-CIO, ROCHESTER DOT LOCAL 506 AND STATE OF NEW YORK (DEPARTMENT OF TRANSPORTATION). A charge that four of sixteen unsuccessful applicants were not promoted because of their activity on behalf of the bargaining agent was dismissed on the basis that the charging party had not met its burden of proof as to the employer's motivation, even assuming that the employer was aware of the protected activity of all four individuals. (ALJ Comenzo, U-26811, 10/7/08)

WEST IRONDEQUOIT MAINTENANCE EMPLOYEES ORGANIZATION, LOCAL 4449 AND WEST IRONDEQUOIT CENTRAL SCHOOL DISTRICT. An improper practice charge, alleging that the West Irondequoit Central School District violated the Act when it unilaterally transferred the work of the Security Supervisor to the newly created nonunit title of Director of Security, was dismissed. The defense that the charge was untimely filed was dismissed since the filing date of the amended charge relates back to the date the original charge was filed. On the merits, while the new position acquired the day-to-day supervisory duties of the unit position, the new responsibilities include a higher level of authority and independence so as to render the duties not substantially similar. (ALJ Fitzgerald, U-27368, 10/8/08)

TRANSPORT WORKERS UNION, LOCAL 2, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ dismissed a charge, on remand, that alleged that the employer refused to bargain concerning a demand for bullet proof vets. While such a demand relates to a mandatory subject of bargaining, the charge was dismissed because the union failed to demonstrate that the employer refused to bargain. (ALJ Maier, U-27600, 10/10/08)

NASSAU, INC. AND COUNTY OF NASSAU. An ALJ deferred a charge which alleged that the County did not comply with an agreement it had entered into with the PBA regarding the deployment of officers in a particular unit. Since the parties' agreement provided an arguable source of right to the PBA and a grievance was pending on the same issue which had already proceeded to arbitration, the charge was deferred to the parties' grievance procedure pursuant the Board's decision in Herkimer BOCES. (ALJ Maier, U-22681, 10/17/08)

BUFFALO PROFESSIONAL FIREFIGHTERS ASSOCATION, INC., LOCAL 282, IAFF, AFL-CIO-CLC AND CITY OF BUFFALO. The charge was deferred to the parties' contractual grievance procedure as Local 282 has filed a grievance on the same facts as pled in the charge. (ALJ Doerr, U-28507, 10/17/08)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 264 AND CITY OF BUFFALO. The charge was deferred to the parties' contractual grievance procedure as AFSCME has filed a grievance on the same facts as pled in the charge. (ALJ Doerr, U-28508, 10/17/08)

JEREMY COLLINS AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ dismissed the charge that alleged that the UFT had violated 209-a.2(c) of the Act when it refused to file a grievance on Collin's behalf and to respond to his inquiries. The charge was dismissed for failure to prosecute the charge after Collins failed to appear for the hearing and respond to the ALJ's letter requiring a sworn statement setting forth good and sufficient reasons for his failure to appear. (ALJ Blassman, U-27822, 10/17/08)

NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK (DEPARTMENT OF LABOR). The ALJ conditionally dismissed a charge, deferring to the collectively negotiated grievance procedure, where the collectively negotiated agreement contained language concerning the obligation of the State as an employer to provide copies of any interrogation record to the charging party, which acts as a reasonably arguable source of right to the charging party, (ALJ Burritt, U-28423, 10/17/08)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The ALJ conditionally dismissed a charge alleging that the State of New York (Department of Correctional Services) violated the Act when it adopted a policy requiring unit employees to sign a release form that would permit the State to contact an employee's medical provider and discuss the employee's attendance at medical appointments, deferring to the parties' contractual grievance procedures. (ALJ Carlson, U-27403, 10/20/08)

TEAMSTERS LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEAMSTERS AND JAMESTOWN BOARD OF PUBLIC UTILITIES. The charge was deferred to the parties' contractual grievance procedure as Teamsters have filed grievances on the same facts as pled in the charge. (ALJ Doerr, U-28474, 10/21/08)

WESTCHESTER COUNTY DEPARTMENT OF PUBLIC SAFETY POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF WESTCHESTER. The ALJ deferred two charges which alleged that the County made unilateral changes when it issued an order requiring that unit employees notify the employer following off-duty involvement in domestic violence incidents resulting in a police response, and froze the PBA's sick leave bank and conducted an audit of the bank. Since the parties' agreement provided an arguable source of right to the PBA by virtue of a "maintenance of standards" clause, the charges were deferred to the parties' grievance procedure pursuant to New York City Transit Authority (Bordansky). (ALJ Wlasuk, U-27815 & U-27845, 10/22/08)

GEORGE CARR AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF WESTCHESTER. The ALJ dismissed Carr's charge, which alleged that CSEA violated 209-a.2(a) and (c) of the Act when it refused his request that it file a contractual grievance on his behalf challenging the County's failure to promote him and when it failed to respond to his request that it represent him in a grievance he filed on his own behalf. The ALJ found that the record did not establish that CSEA had acted arbitrarily, discriminatorily or in bad faith, but only that Carr disagreed with CSEA's opinion that the matters he complained of did not violate the collectively negotiated agreement. The ALJ further found that CSEA had no duty under the Act to contact Carr after he filed a grievance on his own behalf, since CSEA had already explained to Carr that it would not represent him in the matters he complained of in the grievance and Carr did not specifically contact CSEA to request that it represent him or contact him regarding the grievance. (ALJ Blassman, U-27258, 10/22/08)

SCHENECTADY POLICE BENEVOLENT ASSOCIATION AND CITY OF SCHENECTADY. The ALJ conditionally dismissed a charge alleging that the City of Schenectady violated the Act when it implemented a new policy regarding the substitution of certain paid leaves for unpaid Family and Medical Leave Act, deferring to the parties' contractual grievance procedures. (ALJ Carlson, U-27835, 11/7/08)

ROVINA D. KIRKLAND AND ANTHONY BROWN. The Director dismissed the petition because it did not meet several procedural requirements set forth in the Rules. (Director Klein, U-28694, 11/17/08)

AFSCME, NEW YORK, COUNCIL 66, LOCAL 2442, AFL-CIO AND NIAGARA FALLS HOUSING AUTHORITY. The charge was dismissed where preclusive effect was granted to the arbitrator's findings of fact. Inasmuch as contract provision mirrored statutory protections there was a clear identity of issue, and the record indicated a full and fair opportunity to contest the issue sought to be binding. Failure to address an element of the charge in the offer of proof was deemed to be an abandonment. Even were collateral estoppel not found to be applicable, the charge was deferred to the arbitration award, as the arbitration proceeding was not tainted by unfairness or irregularities and the award was not contrary to the law or policy of the Act. (ALJ Doerr, U-27050, 11/25/08)

LAWRENCE TEACHERS ASSOCIATION, NYSUT, AFT, NEA, AFL-CIO AND LAWRENCE UNION FREE SCHOOL DISTRICT. The Association's charge, alleging that the District violated 209-a.1(d) of the Act when it unilaterally increased teacher workload by increasing the length of teaching periods, was jurisdictionally deferred upon the parties' consent to a pending grievance. (ALJ Blassman, U-28639, 12/3/08)

KHALID SALMON AND UNITED FEDERATION OF TEACHERS. The Director dismissed the charge because it did not meet several procedural requirements set forth in the Rules. (Director Klein, U-28532, 12/3/08)

PLATTSBURGH PERMANENT FIREMEN'S ASSOCIATION, LOCAL 2421, IAFF AND CITY OF PLATTSBURGH. The ALJ conditionally dismissed a charge alleging that the City had violated the Act when it unilaterally changed scheduling and compensation practices for a required continuing medical education class, deferring to a pending grievance proceeding between the parties on the same subject. (ALJ Wlasuk, U-28451, 12/8/08)

TRANSPORT WORKERS UNION, LOCAL 106, TRANSIT SUPERVISORS ORGANIZATION AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ sustained in part and dismissed in part the charge's allegations. The ALJ sustained the charge's allegation that the Authority violated the Act when it refused the TSO's demand to bargain the impact of the reduction in the number of unit employees. The Authority could not properly insist that the TSO pursue its remedy solely through the contractual grievance process. The ALJ rejected the Authority's defense that it had satisfied its duty to negotiate during subsequent contractual negotiations, since those negotiations occurred much later in time and its refusal to negotiate the matter except as part of contract negotiations constituted an improper imposition of conditions upon negotiations. The ALJ dismissed for failure of proof the charge's allegations that the Authority violated the Act when it engaged in a pattern of leaving unit positions vacant and when it imposed disproportionately harsh discipline upon unit employees. (ALJ Blassman, U-24765, 12/9/08)

GEORGE ROWE, 1199 SEIU UNITED HEALTHCARE WORKERS EAST AND COUNTY OF ALBANY. A charge alleging that the bargaining agent failed to respond to nine telephone calls and to fulfill its promise to conduct a committee meeting regarding a "write up" that the charging party had received was dismissed. The latter allegation was dismissed on the bargaining agent's motion, as the record was devoid of facts regarding it. The former allegation was dismissed because, while the record evidenced the bargaining agent's lack of response to the atissue calls, it also evidenced continual communication between the bargaining agent's representative and the charging party on the issues raised in those calls. That the bargaining agent may not have acted on all of the information in the charging party's communications was not violative of the Act as the record evidenced that his communications made "identification of requested action and/or actionable occurrence extremely difficult, if not impossible." Alternatively, as there was no record evidence that the bargaining agent's representative was arbitrary, discriminatory or improperly motivated in her judgments and actions, any mistake or failure in addressing the charging party's requests did not rise to a violation of the Act. (Assistant Director Comenzo, U-26736, 12/9/08)

FACULTY ASSOCIATION OF NIAGARA COUNTY COMMUNITY COLLEGE AND NIAGARA COUNTY COMMUNITY COLLEGE. An improper practice charge, alleging that the Niagara County Community College violated the Act by the transfer of certain coordinator duties performed by unit employees to the new title of director of student development, was dismissed. Where the duties alleged to have been transferred are supervisory in nature, the scope of the duties and level of authority of the positions must be evaluated in determining whether the work is substantially similar. (ALJ Fitzgerald, U-27222, 12/16/08)

WESTCHESTER COUNTY DEPARTMENT OF PUBLIC SAFETY POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF WESTCHESTER. The ALJ sustained the charge, finding that the County violated Act 209-a.1(d) when it subcontracted the exclusive unit work of extraditing out-of-state prisoners by aircraft. The ALJ rejected the County's argument that the work, which was subcontracted to the US Marshals Service, is substantially different from the work previously performed by unit detectives. The ALJ found that, although the Marshals Service transports many prisoners on a single flight and uses its own aircraft, whereas unit detectives transport individual prisoners on commercial flights, the work remained substantially unchanged because the Marshals Service only transports a single prisoner on the County's behalf on any given flight. Thus the work being performed remained unchanged: the Marshals Service picks up a single prisoner from an outofstate facility and supervises the prisoner during an airline flight. The ALJ also rejected the County's argument that the transfer of work effectuated a change in the qualifications required for the job, since the Marshals Service and County employees who perform the work are both trained law enforcement officers and because there was no record evidence that the County had transferred the work due to a determination that employees with different qualifications would perform the work better. (ALJ Blassman, U-27042, 12/18/08)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES LOCAL 264 AND BUFFALO MUNICIPAL HOUSING AUTHORITY. A violation was found where an employee in the unit title of Safety Officer continued to perform work he had exclusively performed in the unit title following his promotion to a nonunit title; however, no violation was found where the Occupancy Coordinator performed supervisory and administrative work while both in the unit title of Occupancy Examiner and the nonunit title of Occupancy Coordinator, as the circumstances were found not to be sufficient to create a reasonable expectation by the unit that such duties would continue to be assigned as unit work. (ALJ Fitzgerald, U-27856, 12/23/08)

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Declaratory Rulings

DUTCHESS UNITED EDUCATORS. The Director dismissed the petition for declaratory ruling inasmuch as it raised no question concerning the applicability of the Act or the scope of negotiations. (Director Klein, DR-122, 4/15/08)

DUTCHESS UNITED EDUCATORS. The Director dismissed the petition for declaratory ruling which sought to add titles to a bargaining unit inasmuch as it raised no question as to the applicability of the Act within the scope of negotiations. (Director Klein, DR-123, 4/15/08)

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