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Archived Decision Summaries - January 1, 2009 through December 31, 2009

(Updated June 4, 2010)


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Decision Summaries Of The Board


Board Certifications

COUNCIL 82, NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, AFSCME, AFL-CIO has been certified as the exclusive representative of all part-time and relief Deputy Sheriffs of the County of Rockland and Rockland County Sheriff. All other employees are excluded. (C-5818, 02/09/09)

ADMINISTRATIVE PROFESSIONAL GROUP, NEW YORK STATE UNITIED TEACHERS/AFT, AFL-CIO has been certified as the exclusive representative of the following titles in the Cayuga County Community College: Admissions Assistant, Admissions Assistant (PT), Admissions Recruiter, Assistant Comptroller, Assistant Director of Admissions, Assistant Director of Buildings and Grounds, Assistant Director Cayuga Advantage, Assistant Director of Financial Aid, Assistant Director of Fulton Campus, Assistant Director of Publications and Communications, Assistant Registrar (PT), Athletic Trainer, Banner Functional Support Specialist, CILL Director, Computer Programmer, Coordinator of Electronic Media and Voice Communications, Coordinator of College Health Services, Coordinator of Security Coordinator of Theatre Operations, Director of Admissions, Director of Adult Learning, Director of Building and Grounds, Director of Business Services, Comptroller, Director of Distance Learning, Evening and Special Programs, Director of Information Technology, Director of Institutional Research and Planning, Director of Publications and Communications, Instructional Assistant, Instructional Assistant (PT), Network Operations Administrator, Registrar, Voice and Technical Education Admissions Counselor. All other titles are excluded. (C-5630, 03/18/09)

COUNCIL 82, NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, AFSCME, AFL-CIO has been certified as the exclusive representative of all part-time and relief Deputy Sheriffs of the County of Rockland and Rockland County Sheriff. All other employees are excluded. (C-5818, 02/09/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all full-time Police Officers and Sergeants in the Village of Whitehall. All other employees are excluded. (C-5828, 03/18/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all part-time and full-time Clerk, Senior Clerk Typists, Clerk Typists, Senior Stenographers, Stenographers, Stenographic Secretaries, Senior Account Clerks and Duplication Machine Operator in the Carle Place Union Free School District. Excluded from the unit are Personnel Clerks, Superintendent's Secretary, Principal Typist Clerk in the Business Office and all other employees. (C-5843, 03/18/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all full-time employees employed by the employer in the category of non-supervisory service employees including Maintenance, Groundskeepers and Custodial Workers in the Copiague Union Free School District. All other employees are excluded. (C-5844, 03/18/09)

WEST ISLIP SECRETARIAL EMPLOYEES has been certified as the exclusive representative of the following titles of the West Islip Union Free School District: Included: Clerks, Clerk Typist, Senior Clerk Typist, Steno, Senior Steno, Account Clerk, Senior Account Clerk, Switchboard Operator, Duplicating and Bookkeeping Machine Operator, Computer Operator, Computer Programmers, Handicapped Services Aide, Principal Stenographer, Principal Account Clerk, School Administrative Aide, Secretarial Assistant and School Attendance Aide. All other titles are excluded. (C-5849, 03/18/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all full-time and part-time employees in the Landfill, Animal Control and Water/Wastewater Treatment Departments of the Town of Saugerties. The Water/Wastewater Superintendent title is excluded. (C-5823, 04/22/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of Court Clerk-Typist and Clerk to the Town Justice in the Town of New Paltz. All other titles are excluded. (C-5840, 04/22/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all Senior Stenographers, Stenographers, Senior Account Clerks, Account Clerks, Senior Typists, Typist, Senior Clerks, Clerk-Typist, Teacher Aides, Special Education, Teacher Aides, Library Aides, Purchasing Agents, Jr. Accountant, Accountant, Accountant I, SASI, Office Assistant, Sr., Office Assistant Principal Secretary, Personnel Assistant I, Personnel Assistant II, Senior Personnel Assistant, Payroll Clerk, Benefits Clerk, Sr., and Benefits Clerk of the Mahopac Central School District The following titles are excluded: Clerk to the Board of Education, two Superintendent's Secretaries, Secretaries to all Assistant Superintendents, Deputy Superintendents and Assistants to the Superintendent. (C-5847, 04/22/09)

LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified as the exclusive representative of all full-time employees in Civil Service titles of Laborers and Maintenance Laborers who are assigned to the Village's Facilities Maintenance Department and who work outside of Village Hall in the Village of Scarsdale. Excluded from the unit are all others, including Laborers assigned to Village Hall who are represented by CSEA. (C-5850, 4/22/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all Monitors and Special Education Aides of the Three Village School District. All other titles are excluded. (C-5853, 04/22/09)

VILLAGE OF EAST HAMPTON PUBLIC SAFETY DISPATCHERS ASSOCIATION has been certified as the exclusive representative of Public Safety Dispatchers I and II in the Village of East Hampton. Excluded from the unit are Public Safety Dispatchers III and all other employees. (C-5856, 04/22/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, INC., AFSCME, AFL-CIO has been certified as the exclusive representative of all Fire House Attendants of Cold Spring Harbor Fire District. Excluded from the unit are Fireman, Chiefs, Deputy Chiefs, Clericals, Supervisors, Administrators and all other employees. (C-5857, 04/22/09)

UNITED FEDERATION OF TEACHERS, NYSUT, AFT has been certified as the exclusive representative of all Teachers, Learning Specialists, Social Workers, Counselors, Deans and School Operations Manager of the Kipp Amp Academy Charter School. All other employees are excluded. (C-5870, 04/22/09)

ADIRONDACK COMMUNITY COLLEGE FACULTY ASSOCIATION has been certified as the exclusive representative of a unit of all full-time employees of the Adirondack Community College in the academic rank of: Instructor, Assistant Professor, Associate Professor, Professor, Distinguished Professor, Technical Instructor, Assistant Instructor, part-time employees entitled Special Adjunct, full-time non-credit faculty, and adjuncts that are scheduled to teach at least one three credit course in a semester. Excluded from the unit are the following: Adjuncts that are scheduled to teach less than one three-credit course in a semester, part-time Librarians, Clinical Instructors, Non- Faculty Coaches, Technicians, Tutors, Lab Assistants, Lab Supervisors, Lab Coordinators, Radio Manager, Private Music Instructors, confidential employees, managerial employees and all other employees. (C-5866, 6/9/09)

METROPOLITAN TRANSPORTATION AUTHORITY POLICE DEPARTMENT COMMANDING OFFICERS ASSOCIATION has been certified as the exclusive representative of a unit composed of employees working for the Metropolitan Transportation Authority in the following titles: Captain, Captain Commander, Deputy Inspector, Inspector and Assistant Deputy Chief. All other employees are excluded. (C-5825, 6/9/09)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA LOCAL NO. 529 has been certified as the exclusive representative of a unit composed of all Town of Urbana fulltime, part-time and seasonal employees employed in the Town's Highway Department, including the Deputy Highway Superintendent, all Heavy Motor Equipment Operators, Motor Equipment Operator/Mechanics, Town Maintenance Workers, Laborers and all other employees performing such work in the Town’s Highway Department. Excluded from the unit are all elected Town officials, managerial employees, confidential employees, casual employees, and all other employees. (C-5836, 6/9/09)

COUNCIL 82, NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, AFSCME, AFL-CIO has been certified as the exclusive representative of a unit of all Police Officers employed by the Town of Cairo except the Chief of Police. All other titles are excluded. (C-5860, 6/9/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of a unit of part-time Village of Whitehall Police Officers. Excluded from the unit are all full-time Police Officers, all other Village of Whitehall employees and elected officials. (C-5848, 6/16/09)

TEAMSTERS LOCAL UNION NO. 693, INTERNATIONAL BROTHEROOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA has been certified as the exclusive representative of all full-time Heavy Equipment Operators of the Town of Smithville. All other employees are excluded. (C-5886, 9/17/09)

LOCAL 317, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA has been certified as the exclusive representative of all full-time and regularly scheduled part-time Motor Equipment Operator and Laborers in the Town of Otisco. The Town Highway Superintendent is excluded. (C-5883, 9/17/09)

LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified as the exclusive representative of all full-time and regular part-time Highway Department employees employed by the Town of Leon. All other employees are excluded. (C-5898, 9/17/09)

TEAMSTERS LOCAL UNION No. 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA has been certified as the exclusive representative of all full-time Motor Equipment Operators and the Deputy Highway Superintendent in the Town of Whitehall. The Highway Superintendent, part-time employees, and clerical staff are excluded. (C-5882, 9/17/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all fulltime employees of the Town of Schodack in the following positions: Police Officer, Sergeant, Detective Sergeant, Lieutenant and Dispatcher. The Chief of Police is excluded. (C-5891, 9/17/09)

BOCES TEACHER AIDES ASSOCIATION, NYSUT/AFT/NEA, AFL-CIO has been certified as the exclusive representative of Teachers Aides in the Rockland County BOCES. All other employees are excluded. (C-5887, 10/30/09)

TEAMSTERS LOCAL 118, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified as the exclusive representative of all full-time employees working for the Town of Sweden within the following job titles: Working Foreman, Heavy Equipment Operator, Motor Equipment Operator, Laborer and Automotive Mechanic. All other employees and positions are excluded. (C-5874, 10/30/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of the Assessor, Assistant to City Clerk (Legislative Aide), Assistant Operations Manager, City Water Plant Operator, City Auditor, City Engineer, Commissioner of Planning and Community Development, Deputy City Clerk, Deputy Comptroller for Financial Operations, Grants Writing Specialist, Personnel Associate, Recreation Director and Superintendent of Water and Sewer in the City of Troy. All other employees are excluded. (C-5834, 12/18/09)

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Representation

DAVID WINFIELD AND JORDAN-ELBRIDGE CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 834, UNIT 7819. The Board granted the petition of David Winfield after the results of an election among the employees in the unit indicated that a majority of the eligible employees in the unit no longer desire to be represented by the intervenor Civil Service Employees Association, Local 1000, AFSCME, AFL-CIO, Local 834, Unit 7819. (C-5820, 02/09/09)

MICHELLE CHAMBERLIN AND ARKPORT CENTRAL SCHOOL DISTRICT AND ARKPORT STAFF UNITED. The Board dismissed the petition of Michelle Chamberlin after the results of an election among the employees in the unit indicated that a majority of the eligible employees in the unit desired to be represented by the intervenor/incumbent Arkport Staff United. (C-5830, 02/09/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND LINDENHURST UNION FREE SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Board dismissed the petition of UPSEU to represent certain employees of the Lindenhurst Union Free 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 did not desire to be represented by UPSEU. (C-5845, 03/19/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND TOWN OF WOODSTOCK AND COMMUNICATION WORKERS OF AMERICA, LOCAL 1120. The Board dismissed the petition of UPSEU to represent certain employees of the Town of Woodstock after the results of an election among the employees in the unit indicated that a majority of the eligible employees in the unit did not desire to be represented by UPSEU. (C-5819, 04/22/09)

FASHION INSTITUTE OF TECHNOLOGY The Board affirmed in part, and reversed, in part, a decision by an Administrative Law Judge (ALJ) on a unit placement petition seeking to accrete three positions into a bargaining unit. The Board found the employer’s health and safety director to be managerial, pursuant to §201.7 (a)(1) of the Act, because of his broad authority to formulate and implement campus-wide health, safety and environmental policies and procedures and because he is subject to the direct supervision of the college’s general counsel. The Board, however, found that the deputy director of the college’s museum and the executive studies program director were not managerial because they do not formulate policy and do not play a major role in employee relations. (CP-0939, 7/23/09)

COUNTY OF WASHINGTON. The Board denied exceptions challenging a decision of the Director of Public Employment Practices and Representation (Director), voiding seven mail-ballots in a representation election. At the ballot count, the ballots were challenged by the Board agent because the return receipt ballot envelopes were not signed by the voters consistent with the explicit directions on the voter instruction sheet sent along with the ballot. The Board affirmed the Director’s decision to void the mail ballots that had been challenged. In affirming the Director, the two-member Board noted that the general practice is that unsigned ballot envelopes are challenged by the Board agent before any envelopes are opened for the ballot count with such challenges subject to a waiver by all of the parties. To ensure consistency in all future mail ballot elections, the Board directed the Director to have the parties’ waiver of the signature requirement memorialized in a written stipulation. (C-5727, 9/17/09)

CITY OF TROY. The Board denied exceptions challenging a decision of the Director, voiding three mail-ballots in a representation election because the return receipt ballot envelopes were not signed by the voters consistent with the explicit directions on the voter instruction sheet sent along with the ballot. The Board affirmed the Director’s decision for the reasons set forth in County of Washington, C-5727, decided at the same Board meeting. (C-5606, 9/17/09)

STATE OF NEW YORK – UNIFIED COURT SYSTEM. The Board affirmed a decision of an ALJ placing the title of Secretary to Judge into the District Council (DC) 37 unit concluding that employees in that title are employees of the Unified Court System (UCS) and have a community of interest with employees in the DC 37 unit. In reaching its decision, the Board concluded that while a Supreme Court Justice is the appointing authority for an individual holding a Secretary to Judge title, UCS is the employer for those non-judicial employees for purposes of the Act. (CP-1095, 10/30/09)

SACHEM CENTRAL SCHOOL DISTRICT. The Board reversed a decision of an ALJ placing the new title of school communication aide (SCA) into a clerical unit rather than a teacher aide unit. The Board concluded that the SCA title belonged in the teacher aide unit because they are responsible for operating computers, smart boards, and audio-visual equipment in the classroom like other employees in that unit. In addition, the Board found that the duties of a SCA are more directly connected to the District’s pedagogical mission than the duties of employees in the clerical unit. (C-5760, 10/30/09)

LOCAL 445, INTERNATIONAL BROTHERHOOD OF TEAMSTERS. The Board denied exceptions filed by a community college (College) to a decision of the Director dismissing, as untimely, a petition filed by the College seeking to fragment employees working in non-professional titles at the College from a county-wide unit. The College’s petition was not filed prior to the expiration of the window period set forth in §201.3 (d) of the PERB’s Rules of Procedure (Rules). The Board rejected the College’s argument that its petition was timely under §201.3(e) of the Rules because it was filed 120 days following the expiration of the agreement. The College’s argument was rejected because under §201.3(e) of the Rules the only parties who can file a certification and/or decertification petition is an employee organization other than the incumbent employee organization or one or more public employees. (C-5810, CP-1163, 12/18/09)

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Management / Confidential

NO ARCHIVED MANAGEMENT / CONFIDENTIAL BOARD Decision Summaries FOR 2009.

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Improper Practices

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, COUNCIL 82, AFSCME, AFL-CIO, LOCAL 2841 AND THE CITY OF ALBANY. The Board affirmed the decision of the Assistant Director of Public Employment Practices and Representation (Assistant Director) finding a violation of §209-a.1(d) of the Public Employees' Fair Employment Act (Act) when the City of Albany (City) unilaterally revised a disciplinary rule prohibiting the off-duty consumption of any intoxicating beverages within eight hours before the start of a police officer's scheduled tour of duty. The Board found that the Assistant Director correctly determined that the City failed to include facts in the stipulated record demonstrating that the new eight-hour rule was necessary or that the City faced a new acute problem requiring a more stringent off-duty policy. In addition, the Board held that police discipline in the City is not a prohibited subject of bargaining. In reaching its conclusion, the Board majority relied upon three decades of relevant case law holding that City police discipline is a mandatory subject, New York public policy as reflected in the text and legislative history of the Taylor Law and the provisions of the Second Class Cities Law, the state law relied upon by the City. In a concurring opinion, Board member Hite concluded that the at-issue rule is not a prohibited subject because it is only tangentially related to disciplinary procedures. (U-27105, 04/22/09)

TOWN OF WALLKILL POLICE BENEVOLENT ASSOCIATION, INC. AND TOWN OF WALKILL. The Board affirmed, in part, and reversed in part the decision of an Administrative Law Judge (ALJ) which dismissed an improper practice charge alleging that the Town of Wallkill (Town) had violated §§209-a.1(a) and (d) of the Public Employees' Fair Employment Act (Act) when it failed to affirmatively respond to written requests by an employee organization concerning the Town's intentions about continuing to comply with the parties' negotiated police disciplinary procedures. Two of the requests for information state that if the Town failed to respond, the employee organization would treat the non-response as a Town statement that it intended to discontinue complying with the negotiated disciplinary procedures. In affirming the ALJ, the Board reiterated that an employee organization has a general right to receive requested information and documents from an employer for use by the employee organization in negotiations, to resolve negotiation impasses and in the administration of the agreement. However, based upon the wording of the requests in the present case, the Board concluded that the Town's silence constitutes a reasonable and substantive response to the requests. Finally, the Board held that that the necessity and relevancy of the written requests were not reasonably discernible from the stipulated record. (U-27530, 04/22/09)

DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 1597 (BLOWE AND WATSON). The Board affirmed the decision of an Administrative Law Judge (ALJ) dismissing an improper practice charge, which alleged that District Council 37, AFSCME, Local 1597 (DC 37) violated §209-a.2(c) of the Public Employees’ Fair Employment Act (Act) when it failed to process a grievance to arbitration challenging the termination of the charging parties. The Board found that the ALJ correctly concluded that DC 37 did not breach its duty of fair representation by making a merits-based decision to not proceed to arbitration. The DC 37 decision was made following a recommendation by its attorney who had reviewed the grievance, the terms of the collectively negotiated agreement and the relevant negotiation history. (U-28448, 6/9/09)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO (GRAY). The Board affirmed the decision of an ALJ dismissing an improper practice charge, which alleged that the United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO (UFT) violated §209-a.2(c) of the Act based upon alleged delays in the processing of the charging party’s 15 outstanding grievances. The ALJ dismissed the charge after the charging party made an opening statement and rested at the hearing without presenting any evidence. (U-28282, 6/9/09)

NASSAU COMMUNITY COLLEGE FEDERATION OF TEACHERS, LOCAL 3150, NEW YORK STATE UNITED TEACHERS, AFL-CIO, (STASKOWSKI). The Board affirmed the decision of an ALJ, which dismissed, at the close of the charging party’s case, an improper practice charge alleging that the Nassau Community College Federation of Teachers, Local 3150, NYSUT, AFL-CIO (Federation) violated §§209-a.2(a) and (c) of the Act. The charge alleged that the Federation breached its duty of fair representation by refusing the charging party’s request to bypass Step II during the processing of a grievance challenging her suspension and by failing to fairly represent her during a pre-hearing meeting about the charges seeking her dismissal. In its decision, the Board reiterated that it will affirm an ALJ's decision to grant a motion to dismiss an improper practice charge at the close of a charging party’s case, only when the evidence in the record, after granting all reasonable inferences, is plainly insufficient to warrant a finding that the charge should be sustained. Applying that standard, the Board concluded that the charging party had failed to establish a prima facie case that the Federation had acted in an arbitrary manner in denying her request to bypass Step II and by its’ handling of the pre-hearing meeting. (U-26135, 6/9/09)

1199 SEIU UNITED HEALTHCARE WORKERS EAST (ROWE). The Board affirmed the decision of the Assistant Director of Public Employment Practices and Representation (Assistant Director), which dismissed an improper practice charge alleging that 1199 SEIU violated §§209-a.2(a) and (c) of Act. The Board denied the charging party’s exception challenging the Assistant Director’s pre-hearing ruling, which limited the issues to be determined at the hearing. The Board reiterated that when an ALJ finds fatal deficiencies in a pleading, following a party’s clarification of its factual allegations, he or she may decline to further process the deficient component of the charge. The Board also denied the exceptions challenging the dismissal of the remainder of the duty of fair representation charge. The Board found that the record established that 1199 SEIU was in regular contact with the charging party about the workplace issues he raised in his numerous telephone messages and had represented him at various grievance hearings. Based upon 1199 SEIU’s regular communications with the charging party and its representation of him during the grievance hearings, the Board concluded that 1199 SEIU did not violate its duty of fair representation when it failed to respond to each and every repetitive message left by the charging party. (U-26736, 6/9/09)

NEW YORK CITY TRANSIT AUTHORITY. The Board reversed a decision of an ALJ, which dismissed an improper practice charge alleging that NYCTA violated §209-a.1(d) of the Act when it unilaterally implemented new dual employment standards. The Board found that the ALJ erred in concluding that NYCTA had previously reserved an unfettered right to unilaterally implement more stringent department-specific dual employment standards. In addition, the Board found that NYCTA failed to meet its burden of proof by demonstrating an objective need warranting the implementation of the more stringent dual employment standards consistent with its prior conditional reservation of rights. Therefore, the Board held that NYCTA violated §209-a.1(d) of the Act and issued a remedial order requiring NYCTA to, inter alia, withdraw its more stringent standards. (U-26837, 6/16/09)

STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES)(BIEGEL). The Board affirmed a decision by the Director of Public Employment Practices and Representation (Director) dismissing, as deficient, an improper practice charge alleging that the State of New York (State) violated §§209-a.1(a), (d) and (g) of the Act. In affirming, the Board reiterated that an individual lacks standing to pursue an alleged violation of §209-a.1(d) of the Act. The Board also found that the alleged violation of §209- a.1(g) of the Act, along with the allegation of constructive discharge, was untimely. In addition, the Board affirmed the dismissal of the allegation that the State violated §209-a.1 (a) of the Act by refusing the charging party’s request for reinstatement, an apology, reimbursement for legal fees and the removal of the notice of discipline from his personnel file. The Board concluded that the charging party had failed to allege any facts which, if proven, would have established that the State was improperly motivated under the Act. (U-28834, 7/23/09)

STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES) (BIEGEL). The Board affirmed a decision by the Director of Public Employment Practices and Representation (Director) dismissing, as deficient, an improper practice charge alleging that the Board Decisions (June-August 2009) 3 State of New York (State) violated §§209-a.1(a) of the Act by failing to honor the charging party’s requests to remove a notice of discipline and other derogatory materials from his personnel file. After granting all reasonable inferences to the allegations of the charge, the Board concluded that the charge failed to allege sufficient facts to suggest a causal connection between the State’s denials and the prior employee organization representation of the charging party. (U-28885, 7/23/09)

STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES)(BIEGEL). The Board affirmed a decision by the Director of Public Employment Practices and Representation (Director) dismissing, as deficient, an improper practice charge alleging that the State of New York (State) violated §§209-a.1 (a) of the Act by failing to honor the charging party’s requests for reinstatement. The Board found, after granting all reasonable inferences to the allegations of the charge, that the charge failed to allege sufficient facts to suggest that the State was unlawfully motivated when it refused to reinstate the charging party. (U-28886, 7/23/09)

TOWN OF WALLKILL. The Board affirmed the ALJ’s decision concluding that the Town of Wallkill (Town) violated §§209-a.1 (d) and (e) by implementing a new police disciplinary procedure in conflict with the terms of the negotiated disciplinary procedure in the parties’ expired agreement. The Board rejected the Town’s legal argument that police discipline is a prohibited subject of negotiations in the Town based upon the provisions of Town Law §§154 and 155 and the Court of Appeals’ holding in Patrolmen’s Benevolent Association of the City of New York v. New York State Pub Empl Rel Bd. The Board found that some members of the Town police force were entitled to Civ Serv Law §75 procedures and, therefore, the subject is not prohibited for those unit members under the Court of Appeals’ holding in Auburn Police Local 195, Council 82, AFSCME v. Helsby. In addition, the Board found that the Town Law did not render the subject prohibited for the remainder of the unit. The Board’s conclusion was premised on the text and legislative history of Act as well as prior judicial and Board precedent. (U-27426, 7/23/09)

MANHASSET UNION FREE SCHOOL DISTRICT. Following remittitur from the Appellate Division, Third Department, the Board reexamined its remedial order in this unilateral transfer of unit work case to meet contingencies that may prevent or delay the employer’s compliance with the Board’s order. Following the reexamination, the Board revised the remedial order to state that if the restoration of the at-issue work to unit employees is impossible, the employer is required to make comparable work available to all displaced unit members, without loss of work to any current unit employees, or pay the displaced unit employees all back wages and benefits, with interest, until such time as comparable unit work becomes available. In addition, if restoration of the work is delayed, the employer is required to pay the displaced unit employees all back wages and benefits, with interest, until such time as the unit work is restored. The Board emphasized that the decision should not be construed as constituting a modification of the Board’s remedial policies and practices under the Act. (U-26091, 7/23/09)

HIGHLAND FALLS PATROLMEN’S BENEVOLENT ASSOCIATION, INC. The Board reversed, in part, but affirmed, a decision by an Administrative Law Judge (ALJ) finding that an employee organization violated §209-a.2(b) of the Act by including a General Municipal Law (GML) §207-c proposal in its interest arbitration petitions on behalf of separate units of full-time and part-time Village police officers. The Board concluded that the GML §207-c proposal was a nonmandatory unitary demand. Therefore, it ordered the respondent to negotiate in good faith by withdrawing the GML §207-c proposals. (U-26843 & U-26844, 7/23/09)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed a decision by an Administrative Law Judge (ALJ) finding that an employer violated §209-a.1(d) of the Act when it unilaterally changed a past practice permitting employees to take varying amounts of leave time on workdays when they donated blood during blood drives. In its decision, the Board rejected the employer’s contract reversion defense concluding that the cited provision of the agreement did not address the subject matter of the charge. In addition, the Board rejected the employer’s contract reversion argument premised on an employer’s memorandum noting that a unilaterally imposed policy is not an agreement for purposes of contract reversion. Finally, the Board found that where there is a subsequent enforceable past practice inconsistent with an employer’s written policy, the employer can no longer rely on that policy to unilaterally end or modify the practice without violating §209-a.1(d) of the Act. (U-27711, 7/23/09)

COUNTY OF WESTCHESTER. The Board affirmed the decision of an Administrative Law Judge (ALJ) concluding that the employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it unilaterally transferred the duties associated with air transporting extradited prisoners to the United States Marshals Service (Marshals Service). In its decision, the Board rejected the County’s contention that the air transport extradition duties performed by the Marshals Service are not substantially similar to the work previously performed exclusively by unit members. In addition, the Board rejected the County’s argument that there was a significant change in job qualifications requiring the balancing of the respective interests of the parties. (U-27042, 9/17/09)

NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC. The Board affirmed the decision of an ALJ dismissing a charge alleging that the employer violated §209-a.1(d) of the Act when it unilaterally changed the use and purpose of a medical examination under the terms of the parties’ collectively negotiated agreement. After providing the charging party with a full opportunity to set forth the basis for the charge during a colloquy on the record and in a subsequent offer of proof, the ALJ concluded that the employer had satisfied its duty to negotiate the subject of the charge. In its decision, the Board rejected the charging party’s assertion that the ALJ had misconstrued the allegations of the charge after reviewing the colloquy before the ALJ and the charging party’s offer of proof. In reaching its decision, the Board noted that the purpose of an offer of proof is to provide parties with an opportunity to identify facts it intends on proving at a hearing in support of a charge or in support of a defense. Finally, the Board affirmed the ALJ’s conclusion that the subject of the charge is inherently and inextricably intertwined with the negotiated terms of the parties’ agreement. (U-27133, 9/17/09)

CITY OF MIDDLETOWN POLICE BENEVOLENT ASSOCIATION. The Board affirmed, in part, a decision of an ALJ concluding that a proposed police disciplinary procedure and a proposed bill of rights were prohibited subjects of negotiations based upon the police disciplinary provisions of the city charter, which were originally enacted by the Legislature in 1942. While the subject of police disciplinary procedures is, in general, a mandatory subject of negotiations under §209-a.1(d) of the Act, the Board concluded that, based upon the Court of Appeals’ decision in Patrolmen’s Benevolent Assn of the City of New York, Inc. v New York State Pub Empl Rel Bd, 6 NY3d 563, 39 PERB ¶7006 (2006), the city charter provisions rendered the proposed police disciplinary procedure and bill of rights prohibited subjects. However, the Board concluded that the proposal is a mandatory subject for any unit members who are entitled to Civ Serv Law §75 protections, such as veterans and volunteer firefighters, consistent with the Court of Appeals’ decision in Auburn Police Local 195 v Helsby, 62 AD2d 12, 11 PERB ¶7003 (3d Dept 1978), affd, 46 NY2d 1034, 12 PERB ¶7006 (1979).

The Board also affirmed the ALJ’s holding that the proposed GML §207-c procedure ending in binding arbitration is mandatorily negotiable under both Watertown Police Benevolent Association, 30 PERB ¶3072 (1997), confirmed, City of Watertown v New York State Pub Empl Rel Bd, 31 PERB ¶7013 (Sup Ct Albany County 1998), revd, 263 AD2d 797, 32 PERB ¶7016 (3d Dept 1999), revd, 95 NY2d 73, 33 PERB ¶7007 (2000) and Poughkeepsie Firefighters’ Association, Local 596, IAFF 36 PERB ¶3014 (2003), annulled sub nom. Poughkeepsie Prof Firefighters’ Assn, Local 596, IAFF v New York State Pub Empl Rel Bd, 36 PERB ¶7016 (Sup Ct Albany County 2003), revd, 16 AD3d 797, 38 PERB ¶7005 (3d Dept 2005), affd, 6 NY3d 514, 39 PERB ¶7005 (2006) (hereinafter Poughkeepsie).

As in Watertown, the proposal in this case sought an arbitral process to resolve disputes over GML §207-c benefits while at the same time recognizing the employer’s statutory right to determine initial eligibility. In addition, the Board found the proposal to be mandatory under Poughkeepsie because it expressly proposed that the arbitrator’s scope of review would be limited to determining whether the claims manager had a reasonable basis for the eligibility determination based upon the record before him or her.

The Board rejected the employer’s argument that the proposal is nonmandatory under Poughkeepsie because it would permit the arbitrator to hear testimony and it would allow parties to issue subpoenas. The Board interpreted the subpoena provision, in conjunction with the provision permitting testimony at the arbitration, as granting the arbitrator the discretion to permit testimony by individuals whose reports were reviewed by the claims manager. In addition, the Board noted that a trial can be ordered to resolve questions of fact in an Article 78 proceeding seeking review of an administrative determination issued without a hearing. Therefore, nothing in Poughkeepsie prohibited the proposal that would grant an arbitrator the discretion to hear testimony to the same extent that a court might hear testimony in an Article 78 proceeding. (U-27423, 9/17/09)

BOARD OF EDUCATION OF THE CITY OF SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed a decision of an ALJ, in part, to the extent that the ALJ dismissed, as untimely, an allegation that the employer violated §209-a.1(d) of the Act by unilaterally transferring unit work. The Board concluded that the employee organization had actual knowledge of the transfer of unit work in the employer’s Long Island City plumbing warehouse more than four months before the charge was filed. However, the Board remanded to the ALJ the timely allegation in the charge that the employer violated §209-a.1(d) of the Act by failing to respond to the employee organization’s information request relating to the transfer of the unit work. (U-25883, 9/17/09)

INCORPORATED VILLAGE OF HEMPSTEAD. The Board affirmed a decision of an ALJ concluding that the employer violated §§209-a.1(a) and (d) of the Act by renunciating its obligations under an 18-month-old written agreement accreting certain titles to an existing collective negotiations unit. The agreement in question was a stipulation of settlement that had resolved a prior unit placement petition filed with PERB by the employee organization. Relying on County of Orange, 25 PERB ¶3004 (1992), the Board found that the employer violated §§209-a.1(a) and (d) of the Act by unilaterally altering the existing unit. In reaching its decision, the Board rejected the employer’s argument that the prior stipulation of settlement required legislative approval. (U-26139, 9/17/09)

COUNTY OF WESTCHESTER. The Board affirmed a decision of an ALJ conditionally dismissing two improper practice charges based upon the maintenance of standards clause in the parties’ collectively negotiated agreement. In reaching its decision, the Board rejected the employee organization’s argument that the ALJ allegedly misinterpreted and misapplied the applicable standard for a merits deferral and misinterpreted and misapplied the Board’s decision in County of Sullivan and Sullivan County Sheriff, 41 PERB ¶3006 (2008). (U-27815, U-27845, 9/17/09)

COUNTY OF GREENE and SHERIFF OF GREENE COUNTY. The Board reversed the decision of the Assistant Director of Public Employment Practices and Representation (Assistant Director) dismissing an improper practice charge. The Board concluded that the Assistant Director erred in concluding that the charge did not include an allegation that the joint employer violated §209-a.1(d) of the Act by failing to disclose requested information about the financial impact of the proposed health benefits concessions. Therefore, the charging party’s exceptions were granted, in part, and the case was remanded to the Assistant Director to determine the merits of that allegation. (U-27095, 10/30/09)

TOWN OF RIVERHEAD. The Board affirmed the decision of an ALJ dismissing an improper practice charge alleging that the employer violated §209-a.1(d) of the Act by unilaterally transferring certain unit work in an animal shelter to volunteers and unilaterally transferring animal shelter administrative duties to police personnel. The Board held that the charging party failed to meet its burden of establishing exclusivity over the work being performed by the volunteers. In addition, the Board found that the interests of the employer in transferring the administrative duties to police personnel outweighed those of the unit employees. (U-26552, 10/30/09)

NIAGARA CHARTER SCHOOL. The Board remanded the case to an ALJ for further processing aimed at clarifying the stipulated record with respect to an improper practice charge alleging that a charter school violated §209-a.1(d) of the Act when it refused requests to commence collective negotiations. The purpose of the remand was to clarify the record as to which employee organization asserts representational rights pursuant to the New York Charter Schools Act of 1998, Education Law §2854(3)(b-1).

The Board’s decision provides an important practice tip for practitioners before PERB. In remanding the case, the Board emphasized the value and importance of stipulated records as an economical and convenient means of presenting relevant evidence in support of claims and defenses before an ALJ. At the same time, the Board reminded the parties that they retain the same level of responsibility and care for ensuring a complete record through a stipulated record or through the presentation of evidence at a hearing before an ALJ. (U-27727, 12/18/09)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board granted a motion seeking an extension of time to file exceptions pursuant to §213.4 of PERB’s Rules of Procedure. Based upon the unique facts and circumstances set forth in the affidavits submitted by the employer in support of its motion, the Board concluded that the employer demonstrated extraordinary circumstances warranting the grant of additional time to file exceptions. The employer’s affidavits established that a breakdown in its established administrative procedure for the internal distribution of decisions resulted in a delay in the employer’s attorneys learning of the ALJ’s decision. In granting the motion, the Board emphasized that the delay was not the result of any form of neglect, omission or delays by the District’s attorneys. Finally, the Board reaffirmed the high standard that must be met to demonstrate extraordinary circumstances under §213.4 of the Rules. (U-28706, 12/18/09)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO (GOLDSTEIN). The Board denied exceptions challenging a decision by an ALJ granting an unopposed motion by an employee organization seeking dismissal of an improper practice charge based upon the charging party’s failure to respond to the ALJ’s directive that he file an affidavit explaining his absence at the scheduled hearing. The Board held that the charging party’s failure to respond to the ALJ’s directive and his failure to respond to the employee organization’s motion demonstrated a clear and calculated decision to disregard prescribed procedures for pursuing his charge so as to constitute an abandonment of his claim. (U-28828, 12/18/09)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. (HUNTER). The Board denied a motion by a charging party seeking an extension of time to file exceptions pursuant to §213.4 of PERB’s Rules of Procedure (Rules). The Board concluded that the charging party had failed to set forth sufficient and relevant facts demonstrating extraordinary circumstances. In support of her motion, the charging party asserted that she had misread the notice accompanying the ALJ’s decision and erroneously believed that she had 30 days to file exceptions. The Board found that the grounds set forth in the charging party’s motion were insufficient to meet the high standard necessary to demonstrate extraordinary circumstances under §213.4 of the Rules. (U-28615, 12/18/09)

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Declaratory Rulings

NO ARCHIVED BOARD DECLARATORY RULINGS FOR 2009.

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Strikes

NO ARCHIVED STRIKE BOARD Decision Summaries FOR 2009.

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Local Procedures

NO ARCHIVED LOCAL PROCEDURES BOARD Decision Summaries FOR 2009.

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Other Matters

NO ARCHIVED OTHER MATTERS BOARD Decision Summaries FOR 2009.

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Decision Summaries of the Office of Public Employment Practices and Representation


Representation

SULLIVAN COUNTY COMMUNITY COLLEGE AND LOCAL 445, INTERNATIONAL BROTHERHOOD OF TEAMSTERS. The Director dismissed a petition for decertification because it was untimely and dismissed a petition for unit clarification and placement because it cannot be used to remove a title from a bargaining unit. (Director Klein, C-5810 & CP-1163, 3/2/09)

METROPOLITAN TRANSPORTATION AUTHORITY POLICE DEPARTMENT COMMANDING OFFICERS ASSOCIATION AND METROPOLITAN TRANPORTATION AUTHORITY. An ALJ found that the unit petitioned for by the Association constituted an appropriate unit for the purposes for collective bargaining. The ALJ found that a community of interest existed between commanding officers of different titles at the MTA, and that the assistant deputy chiefs and inspectors were not managers within the meaning of the Act. Additionally, the ALJ found that there was no conflict of interest between those employees and the captain titles which were also subject to the petition so as to preclude all titles from being in the same unit. (ALJ Maier, C-5825, 3/5/09)

SACHEM CENTRAL SCHOOL DISTRICT, UNITED PUBLIC SERVICE EMPLOYEES UNION AND SACHEM COMMUNICATION AIDES. A petition to create a separate ninth bargaining unit for the new position of School Communications Aide (SCA) is dismissed where there is no compelling showing of need for a separate unit and where PERB policy and precedent mandate against the unnecessary proliferation of bargaining units. As an alternative position, the petitioner sought placement of the SCAs in a clerical unit, to the objection of the District which advocated an aides unit as being the most appropriate. Although there were dissimilarities in the wages and benefits for SCAs and members of the clerical unit, the similarities in job function, work location and qualifications warranted placement in the clerical unit. Unlike the other aides within the District, the SCAs have little interaction with students, only occasionally venture into the classroom, and have no actual role in the instructional or student management functions. The responsibilities of the SCAs are related to maintaining and providing support for the District's computer technology. (ALJ Cacavas, C-5760, 3/26/09)

NEW YORK STATE PAROLE OFFICERS BENEVOLENT ASSOCIATION and STATE OF NEW YORK (DIVISION OF PAROLE) and NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO. The ALJ dismissed a petition filed by the Parole Officers Benevolent Association seeking to represent a unit of approximately 1,200 employees in the parole officer series currently in the Professional, Scientific & Technical Services (PS&T) unit of State employees represented by PEF. The ALJ found that, in the absence of compelling evidence of a conflict of interest or inadequate representation, the titles in the parole officer series may not be removed, after nearly 40 years, from the PS&T unit. (ALJ Burritt, C-5441, 3/26/09)

UNITED FEDERATION OF POLICE OFFICERS, INC. AND TOWN OF ISLIP AND LOCAL 237 INTERNATIONAL BROTHERHOOD OF TEAMSTERS. The ALJ dismissed the Federation's petitions which sought to fragment for purposes of representation the positions of airport security guard, senior airport security guard, supervisor airport security guard, park ranger I and park ranger II from a long-standing blue-collar unit based upon their peace officer and law enforcement duties. The ALJ found that the law enforcement duties of the positions sought to be fragmented did not rise to the level required by County of Erie and Sheriff of Erie County, 29 PERB 3031, at 3069 (1996), confirmed sub nom. County of Erie v New York State Pub Empl Rel Bd, 247 AD2d 671, 31 PERB 7004 (3d Dep't 1998). (ALJ Blassman, C-5723 & C-5724, 4/9/09)

NEW YORK CITY TRANSIT AUTHORITY AND DISTRICT COUNCIL 37, AFSCME, AFL-CIO. An ALJ granted a unit placement petition, without objection, placing the title telecommunications specialist (data) into the petitioner's unit. (ALJ Maier, CP-1182, 5/1/09)

NEW YORK CITY TRANSIT AUTHORITY AND DISTRICT COUNCIL 37, AFSCME, AFL-CIO. An ALJ granted a unit placement petition, without objection, placing the title computer specialist (operations) into the petitioner's unit. (ALJ Maier, CP-1183, 5/1/09)

COUNCIL OF SCHOOL SUPERVISORS AND ADMINISTRATORS, LOCAL 1, AFSA AND BROOKLYN EXCELSIOR CHARTER SCHOOL. The ALJ dismissed the Association’s petition in Case No. C-5672, which sought to represent the school’s assistant principals. The ALJ held that the assistant principals were confidential employees pursuant to §201.7(a) of the Act and, therefore, could not be represented by an employee organization. The ALJ rejected the Charter School’s arguments that PERB lacked jurisdiction because the for-profit corporation that manages the charter school constitutes a joint employer of the assistant principals. The ALJ also rejected the Charter School’s arguments that the assistant principals qualified to be designated managerial employees under the Act. The ALJ granted the employer’s application in Case No. E-2429 that assistant principals Holly Hillary, Peter Katcher and Leslie King be designated as confidential employees pursuant to §201.7(a) of the Act and dismissed the applicant’s application that they be designated managerial. (ALJ Blassman, C-5672 & E-2429, 6/1/09)

TEAMSTERS LOCAL 118, INTERNATIONAL BROTHERHOOD OF TEAMSTERS AND TOWN OF WALWORTH. Petition seeking to represent a unit of highway employees was granted. Deputy highway superintendent was included in unit of MEOs over objection of Town, where as a working foreman he was found to have minimal input in regard to supervision, discipline and evaluation of MEOs. While the deputy would have the legal authority under Town Law to manage the department in the absence of the highway superintendent, he had not been assigned or exercised such authority in the four-year period in which he held the title, nor was there any reasonable expectation based on the record that he in fact would. (ALJ Fitzgerald, C-5796, 6/4/09)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 832 AND VILLAGE OF DUNDEE. Inclusion of the deputy superintendent in the unit with public works maintenance workers and a waste water operator was inappropriate in light of the fact that the deputy was required to attend all Village Board meetings to report on the state of the water department, and asked to attend executive sessions when necessary. (ALJ Doerr, CP-1124, 6/5/09)

MIDDLE COUNTRY TEACHERS ASSOCIATION AND MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT. Where District revaluated its technology program upon the retirement of a person who held teacher certification and was a member of the teachers association unit, and created a new administrative post, that new title is properly placed in the administrator’s unit. First, the recognition clause of the teachers collectively negotiated agreement does not include the new title, on its face, whereas the recognition clause of the administrators’ agreement does. Second, even if the issue of the appropriate unit was not resolved by the recognition clauses of the applicable agreements, an analysis of the community of interest between the position in question and those of the units examined shows that placement within the administrators’ unit is appropriate. The fact that the administrators’ unit did not intervene in the proceeding does not bar placement. (ALJ Cacavas, CP-1116, 6/25/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND NIAGARA FRONTIER TRANSPORTATION AUTHORITY. Two titles petitioned for by CSEA were added to its bargaining unit with the agreement of the NFTA: manager, inventory control and equipment engineer (surface transportation). The remaining five titles were excluded based on the parties’ agreement that the duties performed by the employees in those titles are sufficient to warrant a managerial and/ or confidential designation. (ALJ Fitzgerald, CP-1203, 7/21/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND PORT JERVIS CITY SCHOOL DISTRICT. The administrative law judge granted the unit placement petition and added the licensed practical nurse title to the bargaining unit represented by the Civil Service Employees Association. The ALJ noted that the relevant employee organizations had consented to the placement and that the factual averments in the application may support it. (ALJ Carlson, CP-1137, 7/13/09)

SOUTHWESTERN NURSES ASSOCIATION AND SOUTHWESTERN CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The decertification portion of a certification/decertification petition was granted, removing the title of registered professional nurse from a unit of noninstructional school employees, where the registered professional nurse was the only professional title in the unit and the qualifications and duties of the position, as compared to the remaining unit titles, created a conflict of interest sufficient to remove the title. The petition to create a unit of three nurses was dismissed, and the title was placed in the bargaining unit of teachers and other professional employees represented by the Southwestern Teachers Association, which filed a letter agreeing to represent the title. (ALJ Fitzgerald, C-5869, 9/21/09)

SOUTHAMPTON TOWN SUPERIORS OFFICERS ASSOCIATION, INC. AND TOWN OF SOUTHAMPTON AND PATROLMAN’S BENEVOLENT ASSOCIATION OF SOUTHAMPTON TOWN, INC. Fragmentation of supervisors from a unit with police officers was appropriate where evidence indicated not only the potential for conflict based on supervisory duties, but recurrent actual conflicts arising out of differing interests and the exercise of authority. The petition for certification/decertification was duly filed by an “employee organization” under the Act based on the group’s demonstrating that it has the various indicia of that status and in accordance with PERB’s broad construction of the applicable criteria. (ALJ Cacavas, C-5805, 10/1/09)

LONG BEACH SCHOOL EMPLOYEES ASSOCIATION AND BOARD OF EDUCATION OF THE LONG BEACH CITY SCHOOL DISTRICT. The Association filed a unit clarification and/or placement petition seeking a finding that the position of Joyce Hanechak, District Treasurer, is in or should be placed in the bargaining unit it represents. The ALJ dismissed the clarification petition, since the position is not mentioned in the contractual recognition agreement and no evidence was presented that the position was already included in the unit. The ALJ granted placement with respect to Hanechak’s position finding that the position has a community of interest with the unit positions and does not qualify to be designed as confidential pursuant to §201.7(a) of the Act. (ALJ Blassman, CP-1132, 10/7/09)

HYDE PARK TEACHERS ASSOCIATION AND HYDE PARK CENTRAL SCHOOL DISTRICT. Pursuant to a unit placement petition filed by the Hyde Park Teachers Association, the unrepresented titles of registered nurse and occupational therapist were placed in a bargaining unit comprised of teachers rather than a bargaining unit comprised of teaching assistants, secretarial and clerical personnel, monitors and teacher aides, represented by the Hyde Park United Employees Association. The Board’s decision in Ichabod Crane Central School District, 33 PERB ¶3042 (2000) was dispositive, and also, the Association’s unit was determined to be the most appropriate unit placement based on shared mission and professional community of interest. (ALJ Wlasuk, CP-1152, 10/15/09)

DISTRICT COUNCIL 37, AFSCME, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND LOCAL 237, INTERNATIONAL BROTHERHOOD OF TEAMSTERS. The ALJ granted DC 37’s unit placement petition that sought, pursuant to §201.7(a) of the Act, to include the newly created titles of customer information representative (CIR) levels I, II and III, in the bargaining unit it represents. The ALJ found that a closer community of interest exists between the CIRs and the employees in DC 37’s unit than with the employees in Local 237’s unit. The ALJ noted that the CIRs respond to inquiries from employees and other persons, as do the clerical employees and benefits examiners who are in DC 37’s unit. The ALJ further noted that the CIR IIs process benefit and leave applications, which is similar to the work performed by benefit examiners. Also found to be important was the fact that some CIR IIs previously performed their current job functions when they worked in positions that are in DC 37’s unit prior to the creation of the CIR titles. Regarding Local 237’s unit, the ALJ noted that the only position with duties similar to the CIRs primarily worked as the assistant editor for a quarterly retirement benefits newsletter and, therefore, has less of a community of interest with the CIRs. (ALJ Blassman, CP-1115, 11/2/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND GROTON CENTRAL SCHOOL DISTRICT. The Association filed a unit clarification/unit placement petition seeking a finding that the three positions of secretary to the principal (High School, Middle School and Elementary School) are either in the bargaining unit it represents, or should be placed there. The ALJ dismissed the unit clarification petition because the contract’s recognition clause explicitly excluded the at-issue positions. However, the ALJ granted the unit placement based on the shared community of interest with the unit positions, and specifically, the fact that the Association currently represents one other secretary to the principal position. (ALJ Wlasuk, CP-1129, 12/3/09)

COUNTY OF NASSAU AND NASSAU COMMUNITY COLLEGE AND ADJUNCT FACULTY ASSOCIATION AT NASSAU COMMUNITY COLLEGE AND NASSAU COMMUNITY COLLEGE FEDERATION OF TEACHERS. The ALJ dismissed the AFA’s clarification petition, which sought a determination that the position of LINCC lecturer (lecturers teaching a series of ESL language immersion courses known “LINCC”) was already encompassed within its unit. The ALJ dismissed the clarification petition on the ground that the contractual recognition clause was too generalized upon which to base clarification and the positions listed elsewhere in the agreement did not include that of lecturer. Proof of a community of interest, without more, was found to be insufficient to support clarification. The ALJ granted the County’s placement petition which sought, as amended, to place the position of LINCC lecturer in the unit represented by the NCCFT. The ALJ held that, although the LINCC lecturers were different from the full-time faculty represented by the NCCFT because they are not eligible for tenure and do not participate in the governing structure of the College, they nonetheless held a closer community of interest with the NCCFT faculty than the adjunct faculty represented by the AFA. The closer community of interest was based upon the fact that the LINCC lecturers and the NCCFT represented employees both work full-time, receive health insurance and other fringe benefits, are given an office and are required to hold office hours, counsel students and participate in the College’s professional life by attending faculty meetings and serving on committees. The adjunct faculty in AFA’s unit, in contrast, are part-time employees who receive no health insurance or other fringe benefits, are not given an office and do not maintain office hours or serve on committees and, therefore, have less of a connection to the College. (ALJ Blassman, CP-1123 & CP-1140, 12/17/09)

PENFIELD ASSOCIATION OF EDUCATIONAL OFFICE PERSONNEL AND PENFIELD CENTRAL SCHOOL DISTRICT. Pursuant to a unit placement petition, the newly created titles of computer services liaison, network technician and senior network technician at the Penfield Central School District were added to a unit represented by the Penfield Association of Educational Office Personnel (Association), a unit which included related technical titles. The unit clarification aspect of the petition was dismissed, as the unit definition was title specific and the newly created titles were not listed. The District’s assertion that the titles are more appropriately placed in the bargaining unit represented by the Penfield Administrative Council was rejected, due to a lack of community of interest with the administrative titles. (ALJ Fitzgerald, CP-1185 (12/24/09)

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Management / Confidential

SHENENDEHOWA CENTRAL SCHOOL DISTRICT. The District's application to designate two Account Clerk Typists (Payroll) as confidential was granted where the parties consented to the designations and the factual averments in the application supported such designations. (ALJ Wlasuk, E-2455, 1/8/09)

CLARKSTOWN CENTRAL SCHOOL DISTRICT. The District's application to designate the Director of Facilities and Operations and the Director of Fiscal Management as managerial and the Secretary to the Director of Facilities and Operations and the Secretary to the Director of Fiscal Management as confidential was granted where the parties consented to the designations and the factual averments in the application supported such designations. (ALJ Wlasuk, E-2461, 1/8/09)

SOUTH COUNTRY CENTRAL SCHOOL DISTRICT. Where the Senior Account Clerk assists a managerial employee and acts in a confidential capacity to that individual, a confidential designation is warranted. (ALJ Cacavas, E-2468, 1/15/09)

BELLMORE UNION FREE SCHOOL DISTRICT. Where an accountant has a confidential relationship to a managerial employee in his performance of managerial responsibilities, a confidential designation is warranted. (ALJ Cacavas, E-2469, 1/14/09)

COUNTY OF ORANGE. The County's application to designate the Administrative Officer as managerial was granted upon a finding that she regularly participated in, and influenced the process by which, decisions were made. She is the chief fiscal officer and prepares the budget, participates in the discussion of the budget by the administrative team, and assists in the presentation of the budget to the County Executive and the county board. She is in daily communication with the Commissioner with respect to fiscal issues and is authorized to sign any document the Commissioner is authorized to sign. (ALJ Burritt, E-2437, 1/15/09)

KINGS PARK CENTRAL SCHOOL DISTRICT. Debra Ford, Network and Systems Coordinator, was designated as confidential based on the evidence that their duties and responsibilities satisfied the criteria enumerated in §201.7(a) of the Act. (ALJ Cacavas, E-2470, 2/13/09)

SOUTH COUNTRY CENTRAL SCHOOL DISTRICT. Where an administrative assistant assists a managerial employee and acts in a confidential capacity to that individual, a confidential designation is warranted. (ALJ Cacavas, E-2472, 4/14/09)

LONGWOOD CENTRAL SCHOOL DISTRICT. The District’s application to designate the Director of School Safety as managerial pursuant to §201.7(a) of the Act was granted where the parties consented to the designations and the factual averments in the application supported such designations. (ALJ Blassman, E-2480, 7/9/09)

SACHEM CENTRAL SCHOOL DISTRICT. Andrew Larson, Assistant Personnel Administrator, was designated as managerial insofar as the factual averments of the application supported such designation. (ALJ Cacavas, E-2485, 8/4/09)

MAMARONECK UNION FREE SCHOOL DISTRICT. Where an administrative assistant had a confidential relationship to the Assistant Superintendent for Support Services – a managerial employee – in the performance of managerial responsibilities, a confidential designation was warranted. (ALJ Carlson, E-2452, 8/18/09)

MOUNT SINAI UNION FREE SCHOOL DISTRICT. Where Executive Administrative Assistant assists and acts in a confidential capacity to the Superintendent of Schools, which is a managerial position, a confidential designation is warranted. (ALJ Cacavas, E-2481, 8/20/09)

TOWN OF BROOKHAVEN AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. Where a senior safety officer was responsible for developing and overseeing all of the Town’s health and safety policies and programs, as well as serving as the Town’s health and safety representative with other municipal and regulatory entities, a managerial designation was appropriate. The evidence revealed that the officer determined the Town’s safety goals and objectives and possessed a large degree of autonomy in determining the methods for accomplishing those. (ALJ Cacavas, E-2462, 8/25/09)

DELAWARE COUNTY AND DELAWARE COUNTY SHERIFF. Inasmuch as the factual averments of the duties and responsibilities of the corrections officer lieutenant, as set forth in the application may support a conclusion of managerial designation, it would best effectuate the purposes of the Act to grant the amended application as to the managerial designation sought therein and stipulated to by the parties. In light of this, whether the correctional lieutenant should be designated as confidential need not be decided by PERB. (ALJ Carlson, E-2416, 8/25/09)

WASHINGTONVILLE CENTRAL SCHOOL DISTRICT. The District’s application to designate an account clerk as confidential was granted where the parties consented to the designation and the factual averments in the application supported such designation. (ALJ Wlasuk, E-2477, 12/4/09)

COUNTY OF ST. LAWRENCE. The District’s application to designate a micro-computer operator as confidential was granted where the parties consented to the designation and the factual averments in the application supported such designation. (ALJ Wlasuk, E-2488, 12/15/09)

PATCHOGUE-MEDFORD UNION FREE SCHOOL DISTRICT. Where a clerk typist assists and acts in a confidential capacity to a managerial employee, a confidential designation is warranted. (ALJ Cacavas, E-2495, 12/15/09)

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Improper Practices

CITY OF MIDDLETOWN AND CITY OF MIDDLETOWN POLICE BENEVOLENT ASSOCIATION. In an improper practice charge filed by the City of Middletown, alleging that the City of Middletown Police Benevolent Association (PBA) violated the Act by submitting nonmandatory demands to interest arbitration, proposals for a bill of rights and a disciplinary procedure for police was found nonmandatory as a result of the City Charter which reserved authority over police discipline to the Board of Commissioners. The demand to establish a procedure for General Municipal Law §207-c benefits was held mandatory since it did not infringe on the City's rights under the General Municipal Law to make initial determinations as to employee eligibility. (ALJ Fitzgerald, U-27423, 1/7/09)

MILDRED MENDEZ MONGES AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed a charge alleging that the employer violated the Act because it was devoid of facts which would establish any interference with her rights set forth in §202 of the Act and the operative act occurred more than four months prior to the filing of the charge. (Director Klein, U-28729, 1/8/09)

UTILITY WORKERS' UNION OF AMERICA, AFL-CIO, LOCAL 393 AND SUFFOLK COUNTY WATER AUTHORITY. The ALJ dismissed Local 393's charge, which alleged that the Water Authority violated Act §209-a.1(d) when it subcontracted the exclusive unit work of meter reading. The ALJ found that the Authority did not act unilaterally, but in conformity with the parties' collectively negotiated agreement. The ALJ rejected Local 393's argument that the agreement did not cover the issue of subcontracting "exclusive" unit work because it referred to work "ordinarily and customarily" performed by the Authority employees. The ALJ stated that the comprehensive nature of the agreement, which sets forth the conditions under which subcontracting is and is not permitted, made it clear that the parties intended that the agreement to encompass their entire understanding regarding subcontracting. (ALJ Blassman, U-27085, 1/13/2009)

EAST HAMPTON VILLAGE POLICE BENEVOLENT ASSOCIATION, INC. PUBLIC SAFETY DISPATCHERS UNIT AND VILLAGE OF EAST HAMPTON. The Association's charge alleges that the Village violated §209-a.1(d) of the Act when it unilaterally implemented a sick leave abuse policy that bars unit employees from working overtime if the Village designates them as sick leave abusers. The charge was jurisdictionally deferred upon the parties' consent to a pending grievance. (ALJ Blassman, U-28510, 1/20/09)

SIMPSON GRAY, UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Where the charging party ignored repeated instructions regarding his opening statement and refused several requests to present evidence in support of his charge at the hearing date, which was scheduled four months from the initial hearing notice, the charge was dismissed on a motion from opposing counsel. The charging party's displeasure with a denial of a prior subpoena request did not justify his blatant disregard for PERB's Rules of Procedure and the instructions of the administrative law judge. (ALJ Cacavas, U-28282, (1/20/09)

PORT WASHINGTON POLICE DISTRICT AND PORT WASHINGTON POLICE BENEVOLENT ASSOCIATION, INC. The ALJ sustained the Police District's charge (Case No. U27439) alleging that the PBA violated §209-a.2(b) of the Act when it submitted three nonmandatorily negotiable demands to binding, interest arbitration. A proposal to make permanent a temporary twelvehour tour of duty agreement was found to be nonmandatorily negotiable because it includes a minimum staffing and other provisions that interfere with the District's ability to determine staffing levels. A demand proposing a procedure to be followed by employees when filing claims for benefits under GML §207-c was found to be nonmandatorily negotiable because it did not allow the District to make the initial benefit determination. A proposal seeking to allow unit employees to retain all earned compensation if they are promoted to positions outside the PBA negotiating unit was found to be nonmandatory because it seeks to determine the terms and conditions of employment of nonunit employees. The ALJ ordered the PBA to withdraw the nonmandatory proposals from interest arbitration. The ALJ dismissed the PBA's charge (Case No. U27454), which alleged that the District violated §209-a.1(d) of the Act by submitting a nonmandatorily negotiable proposal to interest arbitration, because the District had withdrawn the challenged proposal. (ALJ Blassman, U-27439 & U-27454, 1/22/09)

ROLAND BLOWE AND LYNOX WATSON AND DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 1597 AND CITY UNIVERSITY OF NEW YORK. The ALJ dismissed a charge alleging that DC 37 violated its duty of fair representation by not bringing a grievance to arbitration. The ALJ found that there was no evidence of arbitrary, discriminatory or bad faith in DC 37's actions, that it investigated whether the matter should proceed to arbitration, and made a rational determination that the matter not proceed to arbitration. Since the charging parties' interpretation of the agreement was not the only possible one, the charge was dismissed. (ALJ Maier, U-28448, 1/26/09)

HEWLETT-WOODMERE ADMINISTRATIVE AND SUPERVISORY ASSOCIATION AND HEWLETT-WOODMERE UNION FREE SCHOOL DISTRICT. A charge filed more than four months after the Association knew or should have known that an impact bargaining violation had occurred is untimely and must be dismissed. Where there is a failure to file in a timely fashion, subsequent events will not extend the period of limitations. Notwithstanding the timeliness issues, the mere facts that an employer would not agree to a union's demands or proceed in negotiations according to the Association's wishes, does not constitute bad faith. A totality of the conduct analysis is required to determine both parties' sincerity in desiring to reach resolution. (ALJ Cacavas, U-27459, 1/26/09)

SUFFOLK COUNTY POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF SUFFOLK. The PBA's charge, alleging that the County violated §209-a.1(d) of the Act when it unilaterally revoked its assignment of a take home vehicle to a unit employee, was conditionally dismissed pursuant to PERB's merits deferral doctrine. (ALJ Blassman, U-28505, 2/5/09)

TOWN OF TONAWANDA POLICE CLUB AND THE TOWN OF TONAWANDA. The Police Club's charge alleging that the Town violated §209-a.1(d) of the Act when it unilaterally established a new basis for discipline was deferred to a pending contractual grievance raising the same issue as the charge. (ALJ Doerr, U-28824, 2/13/09)

NEW YORK STATE NURSES ASSOCIATION, COUNTY OF ERIE AND ERIE COUNTY MEDICAL CENTER CORPORATION. The County of Erie and ECMCC were found to have violated the Act by unilaterally increasing the wage rate for the per diem registered nurse title at ECMCC in violation of the terms of the parties' expired agreement, while the parties were in the process of negotiating a successor agreement. The defense that the pay increase was a reallocation or reclassification of the title was rejected since the title was a per diem position not assigned to any job group or pay grade, but a position agreed to for purposes of supplementing other unit employees' schedules at an hourly rate. (ALJ Fitzgerald, U-27819, 2/20/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 807, CHAUTAUQUA COUNTY EMPLOYEES UNIT 6300 AND COUNTY OF CHAUTAUQUA. The County was found to have violated §§209-a.1(a) and (c) of the Act when it threatened to commence disciplinary actions with the recommendation of termination if an employee did not withdraw his pending grievance. Union animus was established by the wholly pretextual nature of the County's proffered legitimate business reasons for its actions. That the threat was merely an extreme offer in a negotiating process to which it presumed CSEA and the employee would counter was found not to be credible. (ALJ Doerr, U-27546, 3/5/09)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, COUNCIL 82, AFSCME, AFL-CIO, GREENE COUNTY DEPUTY SHERIFF'S ASSOCIATION, LOCAL 2790G AND COUNTY OF GREENE AND SHERIFF OF GREENE COUNTY. The bargaining agent's agreement to two of the employer's health insurance proposals during successor contract negotiations resulted in a $5 increase in unit employees' co-payments for visits to their doctors' offices. A charge that this constituted a change by the employer in plans under the parties' existing health insurance carrier was dismissed because, at the time of the change, the parties were covered by an agreement which addressed both the amount of co-pay to be assessed and what was to be done in the face of a change in co-payment, evidencing that the parties negotiated the issue of changes in co-payment for doctors' office visits to completion, satisfying the duty to negotiate. Based on this determination, whether the change in co-payment was an action of the employer was not addressed. (ALJ Comenzo, U-27095, 3/17/09)

LOCAL 237, I.B.T AND TOWN OF ISLIP. An ALJ held that the Town violated its duty to negotiate when it refused to bargain over the adoption of a financial disclosure form requiring employees to disclose personal financial information. Based upon Board of Education of the City School District of the City of New York, 75 NY 2d 660 (1990) and City of Auburn, 23 PERB 3044 (1990) a bargaining obligation was found to exist prior to implementing this requirement. (ALJ Maier, U-28286, 3/23/09)

WESTCHESTER COUNTY CORRECTION OFFICERS BENEVOLENT ASSOCIATION, INC. and COUNTY OF WESTCHESTER (DEPARTMENT OF CORRECTION). With the agreement of the parties, the ALJ conditionally dismissed a charge, deferring to the contractually negotiated grievance procedure, where the expired agreement between the parties contained provisions that arguably addressed the issue in the charge and where the employer agreed to waive contractual timeliness requirements. (ALJ Burritt, U-28762, 3/24/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000 AFSCME, AFL-CIO, TOWN OF PENFIELD UNIT 7418 AND TOWN OF PENFIELD. An improper practice charge which alleged a unilateral assignment of bargaining unit work to nonunit employees 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. (ALJ Poland, U-28771, 3/25/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, ERIE COUNTY LOCAL 815, ERIE COUNTY UNIT and COUNTY OF ERIE. The County was found to have violated §209-a.1(d) of the Act when it implemented a policy of replacing full-time employees with regular part-time employees working 39 hours a week. Under the policy whether an employee is hired as full-time or regular part-time is based on the status of the applicant and not on operational needs. The County offered no evidence that the policy resulted from a change in the nature and level of services. (ALJ Doerr, U-28198, 3/25/09)

FACULTY ASSOCIATION OF NIAGARA COUNTY COMMUNITY COLLEGE and COUNTY OF NIAGARA AND NIAGARA COUNTY COMMUNITY COLLEGE. The announcement by the Director of Student Development that dress down Fridays would continue for the time being was not a change in dress standards but a statement that the status quo would be maintained. Even if the announcement of the status quo as the standard of dress for employees in Student Development could be construed as a change, the record revealed that standards of dress at the College varied from office to office and were established by department heads. As there was no unilateral change the charge was dismissed. (ALJ Doerr, U-27626, 4/6/09)

NIAGARA CHARTER SCHOOL INSTRUCTIONAL STAFF ASSOCIATION/ NIAGARA WHEATFIELD TEACHERS ASSOCIATION/NYSUT, AFT AND NIAGARA CHARTER SCHOOL. The Niagara Charter School was found to have violated §209-a.1(d) of the Act by its refusal to bargain with the Niagara Wheatfield Teachers Association/NYSUT, AFT, the employee organization designated by the Charter Schools Act as the bargaining representative of a unit of instructional employees of the school. The employer's defenses that acknowledgement of the employee organization would violate the rights of its employees under the Federal and State Constitutions, as well as under the Act, were rejected. PERB has no authority to alter a uniting determination made by the Legislature, even where that determination may be inconsistent with the provisions of the Act or PERB's Rules of Procedure. Further, there is no authority for the argument that there is a federal or state constitutional right to representation by a collective bargaining agent chosen by majority vote. (ALJ Fitzgerald, U-27727, 4/6/09)

BETHLEHEM POLICE BENEVOLENT ASSOCIATION and TOWN OF BETHLEHEM. The ALJ conditionally dismissed two charges alleging that the Town of Bethlehem violated the Act when it denied time off to an officer compensatory time off, deferring to the parties' contractually negotiated grievance procedures. (ALJ Burritt, U-28876 and U-28877, 4/13/09)

PLATTSBURGH PERMANENT FIREMEN'S ASSOCIATION, LOCAL 2421, IAFF AND CITY OF PLATTSBURGH. An ALJ conditionally dismissed a charge alleging that the City of Plattsburgh violated the Act when it unilaterally changed its practices regarding the use and approval of "Association Leave," deferring to the parties' contractual grievance procedures. (ALJ Carlson, U-28191, 4/15/09)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO, LOCAL 2790 AND VILLAGE OF CATSKILL. The Village of Catskill was found to have violated §209-a.1(d) of the Act when it unilaterally implemented a policy restricting secondary (outside) employment for full-time employees of the police department. The Village's right to manage its operations and insulate itself from the threat of potential future lawsuits was rejected as a defense since purely hypothetical liability concerns do not outweigh the resulting encroachment upon its employees' off-duty time and off-duty employment opportunities. (ALJ Wlasuk, U-27414, 4/16/09)

KEVIN BIEGEL AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The Director dismissed a charge alleging that the employer violated the Act because individuals lack standing to allege breaches of one of the subdivisions allegedly violated, the operative act occurred more than four months prior to the filing of the charge, and the charge was devoid of facts. (Director Klein, U-28834, 4/17/09)

KEVIN BIEGEL AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The Director dismissed a charge alleging that the employer violated the Act because the charge was devoid of facts. (Director Klein, U-28885, 4/17/09)

KEVIN BIEGEL AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The Director dismissed a charge alleging that the employer violated the Act because the charge was devoid of facts and did not meet all the procedural requirements set forth in the Rules. (Director Klein, U-28886, 4/17/09)

CITY OF PLATTSBURGH AND PLATTSBURGH PERMANENT FIREMEN'S ASSOCIATION, LOCAL 2421, IAFF. An ALJ conditionally dismissed a charge alleging that the City of Plattsburgh violated the Act when it unilaterally changed its practice of allowing unit members to attend certain training courses on holidays, deferring to the parties' contractual grievance procedures. (ALJ Carlson, U-28192, 5/5/09)

CHENANGO FORKS TEACHERS ASSOCIATION, NYSUT/AFT/AFL-CIO, LOCAL 2561 AND CHENANGO FORKS CENTRAL SCHOOL DISTRICT. On remand, the record credibly evidenced that both the Association and unit employees employed as of June 12, 2003 were aware many years prior to that date of the District's reimbursement of Medicare Part B premiums to retirees. Therefore, the ALJ confirmed her August 22, 2006 decision and found that the District's June 12, 2003 memorandum to current employees rescinding receipt of that benefit upon retirement violated its duty to negotiate under §209-a.1(d) of the Act. (ALJ Comenzo, U-24520, 5/7/09)

ALBANY CITY SCHOOL DISTRICT AND ALBANY PUBLIC SCHOOL TEACHERS ASSOCIATION. An ALJ dismissed a charge alleging that the Albany City School District violated §§209-a.1(a) and (c) of the Act when it reassigned a teacher, finding that the Union did not meet its burden to establish improper motivation. (ALJ Carlson, U-27875, 5/12/09)

AMHERST HIGHWAY EMPLOYEES ASSOCIATION AND TOWN OF AMHERST. An improper practice charge which alleged a unilaterally implemented callout procedure that differed from the procedures set forth in the collectively negotiated agreement 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. (ALJ Poland, U-28675, 5/13/09)

INCOPORATED VILLAGE OF MALVERNE AND MALVERNE POLICE BENEVOLENT ASSOCIATION. An ALJ dismissed the Village's charge since proposals dealing with police discipline, health insurance coverage for dependents of retired employees who had deceased, and certain General Municipal Law 207-c proposals were mandatory subjects of bargaining. The ALJ sustained a PBA charge alleging that a proposal relating to unit configuration was not a mandatory subject of bargaining. (ALJ Maier, U-28688 & U-28731, 5/13/09)

NIAGARA FALLS POLICE CLUB, INC. AND CITY OF NIAGARA FALLS. The City of Niagara Falls was found to have violated the Act by refusing to respond to the Police Club's demand to negotiate a procedure to review initial determinations that an employee is not in compliance with the City's residency requirement. Defense that negotiations were precluded by the authority granted to the City to enact a residence requirement under Public Officers Law §30 was rejected, since that Statute does not address hearing procedures or appeals as to factual determinations of noncompliance. Further, the demand to bargain was not untimely since the matter had not been negotiated, nor had the right to negotiate it been waived. (ALJ Fitzgerald, U-27834, 5/15/09)

VILLAGE OF MOUNT KISCO AND POLICE BENEVOLENT ASSOCIATION OF MOUNT KISCO, NEW YORK, INC. The ALJ dismissed a charge alleging that the Village violated §209-a.1(d) of the Act when it unilaterally ended a past practice of paying full salary without charge to leave accruals to employees who were receiving benefits under General Municipal Law §207-c, finding that the parties' collectively negotiated agreement contained a clear and unambiguous grant of authority for the Village to unilaterally end the past practice. (ALJ Burritt, U-27706, 5/18/09)

ELEANOR GASKIN AND UNITED FEDERATION OF TEACHERS. The Director dismissed a charge alleging that the employee organization violated the Act because it identified no act or omission within four months of the filing of the charge and an employee organization cannot violate §209-a.1(a) of the Act. (Director Klein, U-29113, 5/19/09)

TOWN OF EAST HAMPTON AND EAST HAMPTON TOWN POLICE BENEVOLENT ASSOCIATION, INC. The ALJ dismissed all but one of the charge’s allegations that the PBA improperly submitted nonmandatory proposals to binding interest arbitration. The PBA’s proposal to implement a new duty chart that included rotating morning and afternoon shifts was found to be nonmandatory because it would require the Town to schedule the same number of employees during the day and afternoon tours, which would interfere with the Town’s ability to determine staffing levels. Also nonmandatory were the proposal’s requirements that the Town schedule a certain number of training days and that seniority be the sole criterion upon which tour assignments are made. The PBA’s proposal to expand existing contractual rights regarding the granting of personal leave was found to be mandatory pursuant to the conversion theory of negotiability. A proposed recall provision and a proposal to expand the number of one-day-vacations that unit employees could use were found to be mandatory. The ALJ also found mandatory a proposed GML §207-c procedure that allows officers to submit new medical evidence from their personal physicians after the Town makes its initial determination. (ALJ Blassman, U-28369, 6/1/09)

EAST HAMPTON TOWN POLICE BENEVOLENT ASSOCIATION, INC. AND TOWN OF EAST HAMPTON. The ALJ found that the Town violated the Act when it submitted to binding interest arbitration nonmandatory proposals that sought to confine officers to their homes while on sick leave. The proposals were nonmandatory because they violated officers’ constitutional rights. Although the proposals sought to modify existing contractual provisions, the proposals were not rendered mandatory by the conversion theory of negotiability, as they are unconstitutionally restrictive. The Town’s proposal to increase the number of tours that unit employees must work to receive annual night differential was found to be mandatory. (ALJ Blassman, U-28407, 6/1/09)

ROCHESTER FIREFIGHTERS ASSOCIATION, INC., IAFF LOCAL 1071, AFL-CIO AND CITY OF ROCHESTER. The City of Rochester violated §209-a.1(d) of the Act when it assigned firefighters non-inherent job duties. The assignment of firefighters to set up, monitor and take down equipment used to provide a low flow spray of water for recreational purposes, as well as the supervision of participants represent duties that go beyond the essential character and related incidental tasks of their job. (ALJ Doerr, U-27786, 6/1/09)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 1635F AND ROCHESTER HOUSING AUTHORITY. AFSCME’s improper practice charge alleging that the Authority violated the Act by negotiating a starting salary directly with a unit employee was dismissed. The parties’ agreement explicitly provided that the salary for an employee who is promoted is negotiated between the employee and the Authority. (ALJ Doerr, U-28751, 6/5/09)

PLATTSBURGH PERMANENT FIREMEN’S ASSOCIATION, LOCAL 2421, IAFF AND CITY OF PLATTSBURGH. An ALJ conditionally dismissed a charge alleging that the City of Plattsburgh violated the Act when it unilaterally changed its practice of providing “lieu time” for holidays that fell on unit members’ scheduled days off. (ALJ Carlson, U-28193, 7/1/09)

JAVIER PEREZ AND PROFESSIONAL STAFF CONGRESS AND THE CITY UNIVERSITY OF NEW YORK (HOSTOS COMMUNITY COLLEGE). Where union member acknowledged that the union prepared his case with him, outlined its strategy, presented proof consistent therewith, and did a good job at the arbitration, an action brought against the union after receipt of a disappointing arbitration award is dismissed. The fact that the employee felt other witnesses or evidence should have been presented and a more “robust” effort could have been made by his representative does not establish a violation absent a showing that the union acted arbitrarily, discriminatorily or in bad faith. (ALJ Cacavas, U-27574, 7/9/09)

COUNCIL OF SCHOOL SUPERVISORS AND ADMINISTRATORS AND THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Council’s (CSA) charge, alleging that the District violated §§209-a.1(a) and (d) of the Act when it unilaterally reduced the number of parking permits available for unit employees, changed the procedures by which such permits are granted and refused to negotiate with the CSA regarding the reduced availability of parking was deferred upon the parties’ consent to a pending grievance. (ALJ Blassman, U-28607, 7/9/09)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 650, AFL-CIO AND CITY OF BUFFALO. The ALJ deferred to the parties’ grievance and arbitration procedure a charge which alleged a violation of the Act when the City of Buffalo announced that it would, henceforth, require employees, upon retirement, to subscribe to Medicare Part B. A grievance had been filed under the parties’ contractual grievance arbitration procedure. (ALJ Doerr, U-28755, 7/14/09)

RONALD GRASSEL AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An ALJ dismissed a charge alleging that the District violated the Act by reinstating Education §3020-a charges against Grassel in December 2007 because of a grievance he filed in 1997. The ALJ found that based upon the offer of proof made on the record and a prior Board decision between the same parties, Grassel failed to demonstrate a prima facie case. The District’s motion to dismiss was therefore granted. (ALJ Maier, U-28124, 7/15/09)

ROBERT CARROLL AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 870 AND PATCHOGUE UNION FREE SCHOOL DISTRICT. Where charging party failed to attend the prehearing conference and failed to advise PERB thereafter of his desire to have his case proceed, a motion to dismiss for abandonment of the claim was granted. Specifically, opposing parties were required to wait at the conference for one hour, a call was made to the charging party by the administrative law judge but not answered, and the charging party was ordered to provide a written explanation for his failure to appear, but did not do so. Since numerous accommodations were made for the charging party, and he was put on clear written notice that his failure to provide a reason for his inaction would lead to the dismissal of his case, his failure to respond warranted dismissal of the charge. (ALJ Cacavas, U-29075, 7/20/09)

FRANK COONS AND CITY OF ALBANY. The ALJ dismissed a charge alleging that the employer violated the Act when it refused to deal with the charging party as a shop steward because the union had previously removed him as a shop steward, had directed the employer to only deal with the union president, and because the employer had no influence or involvement regarding the union’s decision to remove the charging party as a shop steward. (ALJ Wlasuk, U-28104, 7/20/09)

WESTCHESTER COUNTY CORRECTION OFFICERS BENEVOLENT ASSOCIATION AND PATRICK GARRETT AND COUNTY OF WESTCHESTER. The charge, alleging that the County violated §§209-a.1(a) and (c) of the Act when it verbally disciplined Garrett and served him with formal disciplinary charges in retaliation for acting as a COBA health and safety delegate was dismissed for failure to prove improper motivation and that the action for which he was disciplined was protected activity. The ALJ found that Garrett’s measuring of the temperature of food served to inmates, although performed in his role as a union representative, was not protected activity because it did not pertain to a term and condition of employment of unit employees. The action was also not protected because it was performed during work time and the record did not evidence a practice of allowing COBA officers to perform union duties during work time or that Garrett was on release time. The ALJ rejected COBA’s argument that the Department sought disciplinary charges against Garret because he had filed a PESH complaint that led to violations against the County. The record showed that the decision to seek discipline against Garrett was made before he filed the PESH complaint. (ALJ Blassman, U-27146, 7/23/09)

PLATTSBURGH PERMANENT FIREMEN’S ASSOCIATION, LOCAL 2421, IAFF AND CITY OF PLATTSBURGH. An ALJ conditionally dismissed a charge alleging that the City of Plattsburgh violated the Act when it unilaterally changed its practice of paying bargaining unit members for attending EMT training, deferring to the parties’ contractual grievance procedures. (ALJ Carlson, U-28194, 7/20/09)

GLEN COVE TEACHERS ASSOCIATION AND GLEN COVE CITY SCHOOL DISTRICT. The Association’s charge alleged that the District violated §209-a.1(a) of the Act when a principal discussed grievance issues during a faculty meeting, ordered the Association president to leave the faculty meeting, unilaterally changed the start time of faculty meetings, extended the school day and denied the Association the use of faculty meeting time. The charge also alleged that the District violated the Act when the superintendent counseled the Association’s president, verbally and in writing, and when the principal scheduled unfounded disciplinary meetings with the Association’s president. The ALJ dismissed the charge, finding that, although the principal expressed his opinion during the faculty meeting regarding issues that had been discussed during labor-management meetings, his statements did not violate the Act because they were not intended or likely to coerce employees into relinquishing rights guaranteed by the Act. The ALJ found that the principal did not violate the Act when he directed the Association president to stop speaking and to leave the room during the faculty meeting, because the principal had no right to continue speaking after the principal told her to keep quiet. If the Association objected to the principal’s statements or believed that it had a right to speak during that meeting, its remedy was to comply with the principal’s directions and file a grievance or other appropriate proceeding to assert its rights. Although the principal changed the starting time of faculty meetings and refused to allow the Association time during the meeting to conduct faculty business, the record showed that the principal acted under the belief that he was contractually privileged to do so and a bona fide dispute regarding contractual rights does not raise a violation of §209-a.1(a) of the Act. Nor did the District did not violate the Act when it counseled the Association president verbally and in writing, since it counseled her for her failure to comply with the principal’s directions and because she dismissed the meeting without authority. The allegations that the principal was improperly motivated when he scheduled disciplinary meetings with the Association’s principal were dismissed for failure of proof. (ALJ Blassman, U-27450, 8/4/09)

MONROE COUNTY CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO MONROE COUNTY LOCAL 828, MONROE COUNTY PARTTIME EMPLOYEES UNIT 7401 AND COUNTY OF MONROE. The County conducted a poll of unit members seeking to ascertain support for the union in violation of §209-a.1(a) of the Act. A contract provision that states that if the County received evidence that 30% or more of the employees were questioning the union’s status did not privilege the County to conduct the poll. Any evidence the County may receive as a result of the poll will have been solicited by it. PERB has not endorsed the use of polls to ascertain union sentiment. That the poll conformed to safeguards recognized in the private sector, where employer polling is common, does not render the County’s poll permissible. (ALJ Doerr, U-29194, 8/10/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LIVINGSTON COUNTY LOCAL 826, LIVINGSTON COUNTY EMPLOYEES UNIT 7300 AND COUNTY OF LIVINGSTON. An improper practice charge, alleging that the county unilaterally changed a practice regarding scheduling on certain holidays, was dismissed as untimely following an offer of proof. The date upon which the County announced the change and issued a schedule of holiday work assignments was the date on which the time to file began to run, not the date of the first holiday on which a unit employee was scheduled to work. (ALJ Fitzgerald, U-28627, 8/11/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 807, TOWN OF PORTLAND UNIT 6321-00 UNIT 6300 AND TOWN OF PORTLAND. CSEA’s allegations that the Town violated §§209-a.1(a), (c) and (d) of the Act when it relieved the unit secretary/treasurer and negotiating team member of her duties as water receptor and attendant stipend for performing those duties were dismissed. There was no proof of animus or proof that the reason proffered by the Town for transferring the duties was pretextual. Further, as the Town’s decision as to who would perform water receptor duties was nonmandatory, its actions did not violate its duty to maintain the status quo until an initial contract was negotiated to completion. Finally, as the work transferred was part-time and as the unit was composed of all full-time employees only, the work of water receptor was not exclusive to the unit and its transfer was not, therefore, illegal subcontracting, as claimed. (ALJ Doerr, U-27659, 8/13/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND ELLWOOD UNION FREE SCHOOL DISTRICT. The ALJ sustained UPSEU’s charge alleging that the District violated §§209-a.1(a) and (c) of the Act when it eliminated the position of David DeSimone, a unit employee and a UPSEU shop steward, because of his protected activity. The record showed that DeSimone had engaged in protected activity that was known to his supervisors and District administrators, that he was quick to seek the assistance of UPSEU in asserting contractual rights and that, when he became a shop steward, he was a vocal representative. The record also demonstrated that the District’s plant facilities administrator made various statements evidencing union animus against DeSimone. The ALJ rejected the District’s argument that it acted based upon non-discriminatory business reasons and that it had laid off DeSimone for budgetary reasons. The ALJ found the District’s reasons pretextual, since the District could have laid off a temporary worker who performed the same work as DeSimone and refused to rehire DeSimone when unit positions subsequently became available. (ALJ Blassman, U-27724, 8/17/09)

GUY B. GIAMMATTEO AND TOWN OF SOUTHAMPTON AND PATROLMAN'S BENEVOLENT ASSOCIATION OF SOUTHAMPTON TOWN, INC. The Director dismissed a charge alleging that the employer violated §209-a.1(d) of the Act because individuals lack standing to allege breaches of that subdivision. The allegation that the bargaining agent breached its duty of fair representation was dismissed as the alleged refusal to represent the charging party occurred more than four months prior to the filing of the charge. (Director Klein, U-29302, 8/17/09)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC., AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). A charge that the employer’s denial of a probationary employee’s request for representation by his bargaining agent at a meeting with investigators for the employer violated §§209-a.1(a) and (g) of the Act was upheld on a finding that §209-a.1(g) of the Act covers probationary employees; that it reasonably appeared that the at-issue employee’s job was potentially in jeopardy, as that section of the statute requires; and that the employee had made a request for representation. (ALJ Comenzo, U-28160, 8/19/09)

DEBORAH BYRON AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Where the charging party has failed to establish involvement in protected activity, as that term is defined under the Act, a critical element of the standard of proof is missing. Similarly, it is essential that proof establish that the person who orchestrated the complained of action, in a charge under §§209-a.1(a) and (c), had knowledge of involvement in activity that was protected. Lastly, a charging party must establish that the actions complained of were taken for reasons of union animus, which burden of proof is not met by merely conclusory or speculative statements. As to claims against a union for breaching its duty of fair representation, there must be a showing of bad faith, arbitrariness or discrimination, as that term is defined by case law. A charging party’s mere disagreement with the decision of a union, or its refusal to take a case to arbitration, is insufficient for finding a violation. (ALJ Cacavas, U-28001, 8/25/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND NASSAU HEALTH CARE CORPORATION. CSEA’s charge, alleging that the NHCC violated §209-a.1(d) of the Act when it unilaterally changed the shifts worked by certain nurses from eleven-hours and forty minutes to eight hours was deferred to pending contractual grievances raising the same matters as the charge. (ALJ Blassman, U-29149, 8/25/09)

JAMES L. KOWNACK, JR. AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 847, SCHENECTADY COUNTY LIBRARY UNIT AND COUNTY OF SCHENECTADY. The ALJ dismissed as untimely a charge alleging that CSEA violated its duty of fair representation by filing an incomplete grievance on behalf of the charging party because it was filed over four months following the alleged improper practice by CSEA. (ALJ Wlasuk, U-27168, 8/27/09)

YONKERS FEDERATION OF TEACHERS, LOCAL 860, AFL-CIO, YONKERS CITY SCHOOL DISTRICT AND YONKERS COUNCIL OF ADMINISTRATORS, LOCAL 8, AMERICAN FEDERATION OF SCHOOL ADMINISTRATORS, AFL-CIO. An ALJ found that the District transferred unit work that had been performed by the union to a nonunit employee in violation of the Act. The duties of the position of International Baccalaureate enrichment developer had been performed by unit members exclusively for a number of years at different locations. The fact that the duties were transferred to an administrator did not constitute a change of qualifications so as to trigger the balancing analysis under the Board’s precedent. (ALJ Maier, U-27599, 8/31/09)

CAROL RUIZ AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An ALJ granted a motion to dismiss a charge after the close of Ruiz’s case. The evidence produced was plainly insufficient, even granting her all favorable inferences, that the alleged adverse actions taken against her were due to her protected activity. (ALJ Maier, U-28200, 8/31/09)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND WEST ISLIP UNION FREE SCHOOL DISTRICT. An ALJ dismissed a charge which alleged that the District violated the past practice of transferring employees in reverse order of seniority. There was no evidence that a past practice existed and the charge was therefore dismissed. (ALJ Maier, U-28555, 8/31/09)

LORI A. CALBERT AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed a charge alleging that the employer violated the Act because there are no facts to arguably establish a violation within four months of the filing of the charge and because individuals lack standing to allege breaches of §209-a.2(b) of the Act. (Director Klein, U-29336, 9/3/09)

WILLIE JOHNSON, JR. AND CAPITAL DISTRICT TRANSPORTATION AUTHORITY. The Director dismissed a charge alleging that the employer violated §§209-a.2(a), (b) and (c) of the Act because an employer cannot violate those subsections of the Act, an individual lacks standing to allege breaches of §209-a.2(b), and the charge was not sworn as required by §204.1(a)(1) of the Rules. (Director Klein, U-29381, 9/11/09)

OLEAN PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 1796, IAFF, AFL-CIO AND CITY OF OLEAN. The charge alleging that the City violated the Act when it hired parttime firefighters, was deferred to the parties’ grievance procedure as the Association filed two grievances complaining of the same acts as set forth in the charge. (ALJ Doerr, U-29280, 9/14/09)

PROFESSIONAL STAFF CONGRESS/CUNY AND CITY UNIVERSITY OF NEW YORK. The ALJ dismissed a charge alleging that CUNY demoted and reduced the salary of two employees because of their protected activity. The ALJ found that the initial protected activity occurred after the first adverse employment action, and that the charging party failed to show a causal connection between the adverse actions and the protected activity. Additionally, CUNY had a legitimate business reasons for its actions. (ALJ Maier, U-28874, 9/14/09)

VICTOR C. BUCHALSKI AND UNITED STEELWORKERS, LOCAL 9434-00 AND CITY OF NIAGARA FALLS. An improper practice charge filed by Victor C. Buchalski alleging that the United Steelworkers, Local 9434-00 (Steelworkers) violated §209-a.2(c) of the Public Employees’ Fair Employment Act when it failed to challenge the termination of health insurance benefits following his disability retirement was dismissed, as the charge was untimely filed more than four months after he had been advised by the union that it would not pursue his claim. Buchalski’s assertion that his time to file ran from the date he received a copy of the Steelworkers’ counsel’s letter regarding the merits of his claim was rejected. Moreover, the charge would have been dismissed on the merits since there was no showing that the decision was arbitrary, discriminatory or in bad faith. (ALJ Fitzgerald, U-28360, 9/21/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF ALBANY. The ALJ conditionally dismissed and deferred to the contractually negotiated grievance procedure a charge alleging a violation of §209-a.1(d) of the Act based on the employer’s unilateral implementation of a plan to furlough county employees one day per month for five months. (ALJ Burritt, U-29315, 9/22/09)

LOCAL 517S PRODUCTION AND SALES DISTRICT COUNCIL, U.F.C.W. AND SUFFOLK COUNTY REGIONAL OFF-TRACK BETTING CORPORATION. Local 517S’ charge, alleging that the Suffolk County Regional OTB violated §209-a.1(a) and (d) of the Act when it announced that, beginning June 19, 2009, unit employees would have to pay fifteen percent of the cost of their health insurance premiums, was jurisdictionally deferred to a pending grievance upon the parties’ consent. (ALJ Blassman, U-29162, 9/23/09)

MICHAEL GOLDSTEIN AND THE UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Where a charging party disagreed with the denial of his request to participate in a hearing by telephone, and both failed to attend the proceeding and to contact the administrative law judge before or after to explain his actions and intentions regarding his claim, the case was dismissed. (ALJ Cacavas, U-28828, 9/24/09)

PATRICIA MONTANINO AND TOWN OF ISLIP. The Director dismissed a charge alleging that the employer violated the Act because it does not identify any subsection of the Act allegedly violated as required by §204.1(b)(3) of the Rules of Procedure and the date of the alleged improper practice was not identified as required by §204.1(b)(3) of the Rules. (Director Klein, U-29426, 9/25/09)

LOCAL 891, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An ALJ held that the District violated the Act when it unilaterally terminated that past practice of giving parking permits to unit employees upon request. The practice of free parking had existed for a sufficient period of time to give rise to the expectation that it would continue. The ALJ rejected that District’s defense that the granting of the permits was not a term and condition of employment because it only granted the chance, not the guarantee, of free parking. (ALJ Maier, U-28706, 9/25/09)

LOCAL 891, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ dismissed Local 891’s charge, which alleged that the District violated §§209-a.1(a) and (d) of the Act when it assigned to custodian engineers pest control duties that were not inherently part of their work and that significantly increased their workload. The ALJ found that the custodian engineers already performed much of those duties and that, to the extent that new duties were added, they were inherent to the work of custodian engineers. The ALJ further found that the record failed to support the allegation that the custodian engineers were required to perform significantly more work in the same amount of time. The ALJ dismissed the allegation, raised in Local 891’s post-hearing brief, that the pest control duties decreased custodian engineers’ compensation, because Local 891 did not raise that allegation at the commencement of the hearing when the ALJ clarified the extent of the charge. (ALJ Blassman, U-27468, 9/30/09)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND PLUMBERS LOCAL UNION NO. 1, U.A., AFL-CIO. The ALJ issued a decision reaffirming a prior finding that the District violated the Act by failing to provide information pursuant to request regarding the transfer of unit work. This Board remanded the matter due to an inconsistency in a prior Board decision, necessitating the issuance of another decision. (ALJ Maier, U-25883, 10/1/09)

ROCKVILLE CENTRE VILLAGE EMPLOYEES CIVIL SERVICE ASSOCIATION, INC. AND VILLAGE OF ROCKVILLE CENTRE. An ALJ held that the Village violated the Act when it transferred the exclusive unit work of parking meter coin collection work to a nonunit employee. The Village’s defenses that it had the management right to determine the time span within which work should be performed, that the Association did not make a demand to bargain and to find a violation would be against public policy were rejected. (ALJ Maier, U-28846, 10/1/09)

SUFFOLK COUNTY ASSOCIATION OF MUNICIPAL EMPLOYEES, INC. AND COUNTY OF SUFFOLK. SCAME’s charge, alleging that the County violated §§209-a.1 (a) and (d) of the Act when it unilaterally transferred the exclusive unit work of arrest processing, was jurisdictionally deferred upon the parties’ consent to a pending grievance. (ALJ Blassman, U-28592, 10/5/09)

MICHAEL ABRAHAMS AND CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO AND VILLAGE OF HEMPSTEAD. The ALJ dismissed Abrahams’ charge, which alleged that CSEA had violated §209-a.2 (a) and (c) of the Act when it refused Abrahams’ request to represent him in a grievance challenging his termination as village administrator. The ALJ found that Abrahams’ position was not in the unit and that CSEA, therefore, did not owe Abrahams any representational duty under the Act. (ALJ Blassman, U-28292, 10/6/09)

ARDSLEY POLICEMEN’S BENEVOLENT ASSOCIATION AND VILLAGE OF ARDSLEY. The ALJ sustained the PBA’s charge that the Village violated §209-a.1(d) of the Act when the chief of police unilaterally prohibited unit employees from performing any off duty police work for other employers. The ALJ rejected the Village’s argument that no change had occurred because the chief’s prohibition was consistent with the Department’s pre-existing rules and regulations. The record evidence demonstrated that, before the police chief’s announced prohibition, unit employees had been permitted to perform such work with the police chief’s authorization. The chief’s announced prohibition further restricted unit employees’ ability to earn money by performing off duty police work by imposing a total prohibition upon such employment. (ALJ Blassman, U-25524, 10/8/09)

ELLICOTTVILLE TEACHERS ASSOCIATION AND ELLICOTTVILLE CENTRAL SCHOOL DISTRICT. An improper practice charge alleging a violation of the duty to negotiate a change in practice, whereby teachers had received early release on the workday prior to the December recess, was dismissed. The District was found to have satisfied its duty to negotiate the matter as a result of the terms of the parties’ agreement which defined both the work year and the workday of teachers, thus, it was privileged to revert to the terms of that agreement despite its prior practice. (ALJ Fitzgerald, U-28394, 10/20/09)

CHRISTINE V. SERAFIN, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 650, AFL-CIO AND CITY OF BUFFALO. Serafin’s charge alleging that AFSCME Local 650 violated its duty of fair representation was dismissed following submission of an offer of proof. Serafin failed to plead or present facts to establish that Local 650’s refusal to file an overtime grievance on her behalf was arbitrary, discriminatory or in bad faith. Serafin was told and understood that an earlier and identical grievance was withdrawn by Local 650 at Step 2 on a finding that Serafin did not qualify for the overtime opportunities available. Further, broad and conclusory allegations that Local 650 discriminated in the assignment of overtime, granting opportunities to a favored few, without supporting facts cannot form the basis for finding a violation under the Act. Neither does a disagreement as to the merits of a grievance establish arbitrary, discriminatory or bad faith conduct. Finally, a union is under no statutory obligation to reiterate its refusal to file a grievance in a form demanded by the charging party. (ALJ Poland, U-28299, 10/20/09)

POLICE ASSOCIATION OF NEW ROCHELLE AND CITY OF NEW ROCHELLE AND NEW ROCHELLE SUPERIOR OFFICERS’ ASSOCIATION. The ALJ sustained the charge, finding that the City violated §209-a.1(d) of the Act when it transferred to nonunit supervisors special-duty detail work that had been previously performed exclusively by Association unit employees. The ALJ rejected the City’s and SOA’s argument that the Association unit employees did not have exclusivity over the work because it required only the performance of generalized police functions, such as patrolling, providing a police presence and traffic control work, which superior officers are also qualified to perform. The ALJ noted that the Association need not prove that its unit employees were the only ones qualified to perform the in-issue work, but only that they had performed it exclusively. The ALJ also rejected the argument that exclusivity was breached when superior officers performed special-duty details, since the superior officers did not perform the same duties as Association unit employees, but performed supervisory work. The ALJ also found without merit the City’s argument exclusivity was breached when private vendors hired civilians to perform traffic control at construction and excavation sites, since there was no evidence that the City had required the work to be performed or that the work was performed by or on behalf of City. (ALJ Blassman, U-26722, 10/21/09)

TOWN OF FISHKILL POLICE FRATERNITY, INC. AND TOWN OF FISHKILL. The charge alleged a wide-ranging campaign of harassment, retaliation and interference in violation of §§209-a.1(a) (b) and (c) of the Act, and of related unilateral changes in terms and conditions of employment and failure to continue the terms of an expired agreement in violation of §§ 209-a.1(d) and (e) of the Act. The ALJ found a violation of subsection (d) when the Town unilaterally placed restrictions on the PBA’s use of its e-mail system. The ALJ also found violations of subsections (a) and (c) of the Act in counseling an employee for the protected activity of discussing the contract impasse and in evaluating that employee based on that activity and on an issue that had already been resolved. The charge was in all other respects dismissed. (ALJ Burritt, U-27331 & U-27568, 10/21/09)

ODESSA HUNTER, NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC., AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The charge that the exclusive bargaining representative breached its duty of fair representation by failing to notify charging party of its decision to close her grievance and when it conspired with her employer to withhold information from her following her termination was dismissed following charging party’s submission of an offer of proof. The charging party failed to set forth specific, timely and relevant facts in support of her charge. That the union’s decision to close her grievance failed to reach her was due to her failure to notify it of her change of address. Her remaining allegations were untimely and conclusory and could not form the basis for a finding of a violation of the Act. (ALJ Poland, U-28615, 10/26/09)

PLATTSBURGH PERMANENT FIREMEN’S ASSOCIATION, LOCAL 2421, IAFF AND CITY OF PLATTSBURGH. An ALJ conditionally dismissed a charge alleging that the City of Plattsburgh violated the Act when it unilaterally changed a practice concerning disability retirement applications, deferring to the parties’ contractual grievance procedures. (ALJ Carlson, U-29216, 10/26/09)

NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND COUNTY OF ALBANY. An ALJ conditionally dismissed a charge alleging that the County of Albany violated the Act when it unilaterally implemented a plan to furlough County employees one day per month over a five month period, deferring to the parties’ contractual grievance procedures. (ALJ Burritt, U-29396, 10/27/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (RACING & WAGERING BOARD). An ALJ conditionally dismissed a charge alleging that the State of New York Racing & Wagering Board violated the Act when it unilaterally altered a practice of allowing per diem bargaining unit members assigned to the Aqueduct race track to charge absences from work to accrued leave on dates when races at Aqueduct were cancelled. (ALJ Carlson, U-29107, 11/6/09)

TOWN OF WALLKILL POLICE BENEVOLENT ASSOCIATION, INC. AND TOWN OF WALLKILL. In connection with bad faith bargaining charges filed by the PBA against the Town and by the Town against the PBA, the ALJ dismissed the Town’s claim that the PBA’s refusal to withdraw, prior to a declaration of impasse, its proposal on discipline constituted a violation of §209-a.2 (b) of the Act. The ALJ sustained the PBA’s charge against the Town, finding that the Town failed to negotiate in good faith when it conditioned further negotiations on the PBA’s withdrawal of its proposal on police discipline. As the parties later resumed negotiations, the remedy was limited to an order that the Town sign and post a notice of the violation. (ALJ Burritt, U-28331 & U-28379, 11/9/09)

MICHAEL A. DAVITT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF ROCKLAND. The Director dismissed a charge alleging that both the union and employer violated the Act because it does not arguably establish a violation of any of the subsections of §209-a of the Act. (Director Klein, U-29420, 11/16/09)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, COUNCIL 82, AFSCME, AFL-CIO, LOCAL 2796 and STATE OF NEW YORK (OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION). An ALJ dismissed a charge alleging that the State of New York Office of Parks, Recreation and Historic Preservation violated the Act by unilaterally altering a past practice under which officer recruits had worked five eight-hour workdays per week, for a total of 40 hours per week. The ALJ found that the charging party failed to prove the existence of an enforceable past practice. (ALJ Carlson, U-27324, 11/19/09)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, PUTNAM COUNTY UNIT #8150, PUTNAM COUNTY LOCAL 840 and MAHOPAC CENTRAL SCHOOL DISTRICT. An ALJ dismissed a charge alleging that the Mahopac Central School District violated §209-a.1(d) of the Act when it unilaterally changed an alleged past practice of hiring any member of the bargaining unit who expressed an interest to work in a summer program for seriously disabled students. The ALJ found that there was no change in the District’s practice when the District considered the qualifications of the applicants, and dismissed the charge. (ALJ Burritt, U-27924, 11/23/09)

ROBERT SETLOCK, JR. and STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES – ALBION CORRECTIONAL FACILITY). Setlock’s improper practice charge alleging that DOCS violated §§ 209-a.1 (a) and (c) of the Act by terminating him for having filed a grievance was dismissed. Charging party failed to establish that Setlock’s supervisor, who authored his probationary period evaluation reports and recommended termination of his probationary employment, knew that he filed a grievance prior to his having filed the at-issue improper practice charge. Even Decisions of the Office of Representation (September ‘09 - January ‘10) 11 were it found that his supervisor knew of the grievance, the evaluation reports and various memorandum and counseling letters establish more than legitimate reasons for terminating his employment. (ALJ Doerr, U-27139, 12/3/09)

GERALD J. O'CONNOR AND FACULTY ASSOCIATION OF SUFFOLK COUNTY COMMUNITY COLLEGE AND SUFFOLK COUNTY COMMUNITY COLLEGE. 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. The alleged violation of §209-a.2(b) of the Act is also dismissed because individual employees lack standing to allege a violation of that subdivision. (Director Klein, U-29482, 12/4/09)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 264 AND BUFFALO MUNICIPAL HOUSING AUTHORITY. The Buffalo Municipal Housing Authority did not violate its bargaining obligation when it unilaterally changed the Assistant Superintendent of Maintenance job specification to include a description of duties performed by employees in the title. The ALJ noted that there was no evidence to support claims that the responsibilities of the position were significantly expanded. Evidence showed that although the content added to the job specification could be interpreted as expanding the responsibilities of the title, no new duties or responsibilities were in fact added. The ALJ concluded that a possibility that the new job description could be interpreted as expanding duties is, without an actual new duty assignment, insufficient to support a finding that the essential character of the position has been altered or that new duties outside the inherent nature of the position have been added. (ALJ Poland, U-28065,12/15/09)

UNIFORMED PATROLMEN’S ASSOCIATION OF THE GREECE POLICE DEPARTMENT AND TOWN OF GREECE. The charge was deferred to the parties’ grievance and arbitration procedure under their current collectively negotiated agreement. The charge alleged a violation of §209-a.1(d) of the Act when the Town subcontracted the exclusive work of the community services position to an employee outside the unit. The Association filed a grievance based upon the same or similar facts as pled in the charge. Accordingly, the charge was deferred pursuant to the Board’s decision in Herkimer County BOCES. (ALJ Doerr, U-29511, 12/17/09)

YONKERS FEDERATION OF TEACHERS, LOCAL 860, AFT, AFL-CIO AND YONKERS CITY SCHOOL DISTRICT. An ALJ conditionally dismissed and deferred to the contractual grievance procedure a charge alleging that the Yonkers City School District violated the Act when it unilaterally determined that YFT members would be charged a “participant fee” to continue their participation in the District’s previously cost free Internal Revenue Code §403-b program. (ALJ Burritt, U-28934, 12/17/09)

ADRIENNE FLOYD AND DISTRICT COUNCIL 37, AFSCME, AFL-CIO, LOCAL 372 AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Upon the respondents’ motion, the ALJ dismissed a charge alleging that DC37 had violated §209-a.2(a) and (c) of the Act when it failed to properly represent Floyd during a disciplinary grievance hearing. The charge was found to be untimely, since it alleged that DC 37 had acted improperly during an October 29, 2008 hearing and the charge was filed on May 14, 2009, beyond the required four-month filing period. (ALJ Blassman, U-29158, 12/21/09)

ROCHESTER TEACHERS ASSOCIATION AND ROCHESTER CITY SCHOOL DISTRICT. Improper practice charge filed by the Rochester Teachers Association alleging a violation of the Act by virtue of the District’s elimination of unit employees’ role in interviewing and hiring lead teachers was conditionally dismissed subject to a determination in the grievance arbitration pending on the same matter. (ALJ Fitzgerald, U-29251, 12/22/09)

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Declaratory Rulings

PROFESSIONAL FIREFIGHTERS ASSOCIATION OF NASSAU COUNTY, LOCAL 1588, IAFF, AFL-CIO AND VILLAGE OF GARDEN CITY. A union's statement, included in its bargaining proposals, to the effect that a provision of the existing collectively negotiated agreement (Agreement) is void as inconsistent with prevailing statutory law and must be removed from the Agreement does not constitute a scope of negotiations question under the Act. Under §210 of PERB's Rules of Procedure the purpose of a declaratory ruling petition is to determine whether a matter is a subject of mandatory negotiations. There must exist a real dispute between the parties as to the negotiability of a specific demand. Where, as here, there is no proposal and no refusal to negotiate, a declaratory ruling is inappropriate and such petition must be dismissed. (ALJ Cacavas, DR-125, 5/19/09)

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last modified: 6/4/2010
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