Archived Decision Summaries - January 1, 2005 through December 31, 2005

(Updated February 16, 2006)


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Decision Summaries Of The Board


Board Certifications

RIVERHEAD CHARTER SCHOOL EMPLOYEES ASSOCIATION has been certified to represent all certified personnel of the Riverhead Charter School in the following titles: Lead Teacher, Senior Teacher, Teacher, Resident Teacher, Teacher Assistant, Student Support Manager, and Tutor. All other personnel are excluded from the unit. (C-5436, 1/24/05)

TEAMSTERS LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent all correction officers employed by the County of Montgomery and Montgomery County Sheriff. All other employees are excluded. (C-5442, 1/24/05)

NEW YORK STATE LAW ENFORCEMENT UNION, COUNCIL 82, AFSCME, AFL-CIO has been certified to represent all correction corporals, sergeants and lieutenants employed by the County of Montgomery and Montgomery County Sheriff. All other employees are excluded. (C-5444, 1/24/05)

TEAMSTERS LOCAL 317, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent all full-time and regular part-time and winter seasonal employees of the Town of Mexico in the titles of Motor Equipment Operator, Laborer, and Deputy Highway Superintendent. All elected, clerical, non-winter seasonals, and managerial employees as defined by the Act are excluded from the unit. (C-5445, 1/24/05)

TEAMSTERS LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent all full-time and regular part-time employees in the Highway Department of the Town of Schaghticoke. Excluded from the unit are supervisors and all other employees. (C-5448, 1/24/05)

VILLAGE OF FLORIDA POLICE BENEVOLENT ASSOCIATION has been certified to represent all part-time and full-time police officers employed by the Village of Florida. All other employees are excluded. (C-5459, 3/16/05)

PORT WASHINGTON WATER POLLUTION CONTROL DISTRICT MANAGEMENT ASSOCIATION has been certified to represent employees of the Port Washington Water Pollution Control District in the titles of Superintendent and Assistant Business Manager. Excluded from the unit are employees in the titles of Director, Foreman, field unit employees and clerical employees. (C-5467, 3/16/05)

PORT WASHINGTON WATER POLLUTION CONTROL DISTRICT CLERICAL ASSOCIATION has been certified to represent all clerical employees and office staff of the Port Washington Water Pollution Control District. Excluded from the unit are the titles of Director, Superintendent, Assistant Business Manager, field unit employees and Foreman. (C-5468, 3/16/05)

PORT WASHINGTON WATER POLLUTION CONTROL DISTRICT FOREMEN'S ASSOCIATION has been certified to represent all employees of the Port Washington Water Pollution Control District in the title of Foreman. Excluded from the unit are the titles of Director, Superintendent, Assistant Business Manager, field unit employees and clerical employees. (C-5472, 3/16/05)

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 832 has been certified to represent all highway department employees employed by the Town of Naples. Excluded from the unit is the title of Superintendent of Highways. (C-5491, 3/16/05)

HARTSDALE FIRE OFFICERS ASSOCIATION, INC. has been certified to represent employees of the Hartsdale Fire District in the titles of Deputy Chief and Captain. All other employees are excluded. (C-5418, 4/27/05)

HICKSVILLE SCHOOLS NURSES ASSOCIATION has been certified to represent all registered nurses employed by the Hicksville Union Free School District. Nurse teachers and all other employees are excluded. (C-5466, 4/27/05)

GRAHAM SCHOOL CUSTODIAL ASSOCIATION has been certified to represent employees of the Greenburgh-Graham UFSD in the titles of custodian, cleaner and all other custodial workers. Head custodian is excluded from the unit. (C-5469, 4/27/05)

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 200UNITED has been certified to represent all bus drivers (regular, assistant, extra), school bus dispatchers, laborers, mechanics, mechanic helpers and driver-laborers employed by the Fayetteville-Manlius School District. All other employees are excluded. (C-5475, 4/27/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent Instructional Support Staff including Teaching Assistants and Interpreters and non-teaching employees including Teacher Aides, Greeters, Print Room Attendant, District Learning Attendant, Food Service, Maintenance, Transportation, Personnel, Clerical Personnel, Cleaners, Driver/Mechanics, Bus Aides, and Deputy Records Management Officer/Clerk employed by the Warrensburg Central School District. All other employees are excluded. (C-5477, 4/27/05)

TEAMSTERS LOCAL 791, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified to represent employees of the Town of Brighton in the titles of Foreman (Roads) and Foreman (Sewer). All other employees are excluded. (C-5494, 6/8/05)

VILLAGE OF LAKEWOOD POLICE UNIT, CHAUTAUQUA COUNTY LOCAL 807, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent all full-time Police Officers of the Village of Lakewood. All other employees, including the Chief of Police, are excluded. (C-5506, 6/8/05)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 463 has been certified to represent all full-time employees of the Town of Wheatfield in the Departments of Highway, Water and Sewer. Excluded from the unit are clerical, part-time and seasonal employees, Highway Superintendent, Deputy Highway Superintendent, Superintendent of Water and Sewer, Deputy Superintendent of Water and Sewer (Crew Leader). (C-5515, 6/8/05)

SAG HARBOR ADMINISTRATORS’ ASSOCIATION has been certified to represent employees of the Sag Harbor Union Free School District in the titles of Middle School High School Principal, Middle School High School Assistant Principal, Middle School Assistant Principal, Director of Athletics, Health and Physical Education, Director of Pupil Personnel Services, Elementary School Principals and Elementary School Assistant Principal. All other employees are excluded. (C-5499, 8/8/05)

AMALGAMATED TRANSIT UNION, LOCAL 580 has been certified to represent Customer Service Representatives employed by CNY CENTRO, Inc. All other employees are excluded. (C-5507, 8/8/05)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all part-time Police Officers, including Lieutenant and Sergeant, employed by the Town of Mount Hope. The Police Chief, all elected officials and all other employees are excluded. (C-5508, 8/8/05)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified to represent all full- and part-time employees of the Amityville Union Free School District in the titles of Chief Custodian, Head Custodian, Senior Custodian, Custodial Workers, School Maintenance Foreman, Maintenance Men, Head Groundsmen, Groundsmen, District Groundsman/Mechanic, District Driver-Messenger, District Stock Clerk, Cooks, Assistant Cooks, Food Service Workers, Central Store Clerk and Central Store Warehouseman. (C-5510, 8/8/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent employees of the Village of Suffern in two units. Unit I contains the titles of Maintenance Mechanic I, Assistant Maintenance Mechanic, Chief Operator IIA-Water Treatment, Assistant Operator Grade 2A-Waste Water, Motor Equipment Operator I, Motor Equipment Operator II, Sewer and Water System Mechanic I, Auto Mechanic II, Sanitation Worker, Laborer, Clerk, Senior Clerk, Account Clerk/Deputy Treasurer, Senior Clerk Typist, Secretary/Deputy Clerk, Justice Court Clerk. Unit II contains the titles of Assistant Operator Grade 3A/Supervisor, Maintenance Supervisor I, Motor Equipment Operator II/Supervisor, and Motor Equipment Operator II/Assistant Supervisor. All other employees are excluded. (C-5411, 12/19/05)

UNITED FEDERATION OF POLICE OFFICERS, INC. has been certified to represent employees of the Poughkeepsies' Joint Water Project Board, City of Poughkeepsie and Town of Poughkeepsie in the titles of Assistant Water Plant Operator, Water Treatment Specialist, Water Treatment Plant Operator II, Environmental Lab Technician, Sr. Water Treatment Plant Operator, Environmental Lab Director, Water Treatment Plant Maintenance Mechanic, Head Maintenance Mechanic, Water Plant Maintenance Supervisor, Water Plant Maintenance Mechanic, Sr. Water Plant Maintenance Mechanic, and Heavy Motor Equipment Operator. All other employees are excluded. (C-5412, 12/19/05)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 455 has been certified to represent all employees of the Village of Washingtonville regularly scheduled to work more than fifteen (15) hours per week in the following titles: Typist, Laborer (part-time & full-time), Maintenance worker (part-time & full-time), Dispatcher (part-time & full-time), Clerk (part-time & full-time), Secretary to the Planning Board, Secretary to the Zoning Board of Appeals, Deputy Treasurer, Chief Waste Water Operator, and Assistant to the Village Justice. All other employees are excluded. (C-5535, 12/19/05)

SOUTHERN CAYUGA ADMINISTRATORS ASSOCIATION has been certified to represent employees of the Southern Cayuga Central School District who are regularly appointed full-time administrators in the titles of Secondary Principal, Middle School Principal, Elementary Principal, Assistant Principal/Athletic Director, and Director of Pupil Personnel Services. Substitutes, temporary, seasonal, part-time, casual and all other employees are excluded. (C-5537, 12/19/05)

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Representation

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND TOWN OF MALTA. The Board dismissed a petition for representation filed by CSEA after the results of an election indicated that a majority of eligible voters had cast ballots against representation by CSEA. (C-5438, 1/27/05)

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1049 AND NEW YORK POWER AUTHORITY. The Board found that the most appropriate unit of NYPA employees at the Flynn Power Plant consists of not only the technical rank and file employees petitioned for by IBEW but also Shift Supervisors, who are working supervisors with modest supervisory responsibilities. The Board also included the Secretary in the bargaining unit, finding that, although she worked for the Director of Operations, she performed no duties that would warrant a finding that she is a confidential employee within the meaning of the Act. (C-5351, 2/9/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND CITY OF JAMESTOWN. The Board affirmed the decision of the Administrative Law Judge (ALJ) granting CSEA's petition for unit clarification and unit placement for part-time employees in the titles of Typist/On-Call Receptionist and Maintenance Mechanic II. Finding the title of Maintenance Mechanic II was in the recognition clause of the CSEA-City collective bargaining agreement and that the part-time employees in the title worked sufficient hours to be eligible for representation, the Board determined that the part-time Maintenance Mechanic II was also in the bargaining unit. The Board also found that the Typist/On-Call Receptionists have a sufficient regularity and continuity in the employment relationship with the City so as to create a "substantial interest in terms and conditions of employment warranting coverage under the Act". The Board rejected the City's argument that because it retains a contractual managerial right to assign unit work to non-unit employees a unit clarification/unit placement petition seeking to represent those employees interfered with its right to assign work. The petition sought a determination as to whether the non-unit employees to whom the City has assigned unit work are entitled to representation and whether that representation is to be afforded by CSEA. A representation petition does not interfere with the manner in which the City directs its workforce. Likewise, the Board found that the fact that the collective bargaining agreement defined CSEA's unit did not preclude PERB from making a unit determination because PERB has the statutory duty, pursuant to §207 of the Act, to determine the most appropriate bargaining unit consistent with the criteria contained therein. Agreements between the employer and the employee organization regarding unit inclusions and exclusions are, accordingly, not controlling. (CP-938, 4/27/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND INCORPORATED VILLAGE OF LAKE SUCCESS. The Board affirmed the decision of the Administrative Law Judge (ALJ) placing unrepresented Police Communications Operators in a unit of blue- and white-collar employees of the Village. While the sole white-collar title in the CSEA unit was vacant and had been for many years, the Board found that the unit was still a mixed unit as the title and duties remained in the bargaining unit despite the title’s vacancy. The terms and conditions of employment of the Dispatchers was not so disparate as to warrant the creation of a separate unit to avoid a conflict of interest in negotiations between the unit employees and the Dispatchers. As the Public Employees’ Fair Employment Act (Act) favors the creation of the largest unit permitting for effective and meaningful negotiations, the Village’s preference for a separate unit, while considered, was not the determinative factor. (CP-907, 6/8/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND VILLAGE OF SUFFERN. The Board affirmed the ALJ’s decision creating two bargaining units of Village employees, one for rank-and-file employees and one for supervisory employees. The Board found that John DeGraw, Motor Equipment Operator II/Supervisor; Daniel Haglund, Motor Equipment Operator II/Assistant Supervisor; Nick Duvo, Sr., Assistant Operator Grade 3A/Supervisor; and Robert Conklin, Maintenance Supervisor I, while members of the Department of Public Works administrative team, were not managerial employees within the meaning of §201.7 (a) of the Act and were not, therefore, deprived of representation rights. The Board also determined that Christine Anderson, Village Court Clerk; Kathleen Van Sickle, Deputy Village Clerk; Joann Cioffi, Senior Clerk; Barbara Cottiers, Account Clerk/Deputy Treasurer; and Lynne Bryant, Clerk Typist were not confidential employees within the meaning of the Act because they did not serve in a confidential capacity to employees who were involved in contract negotiations or contract and personnel administration. (C-5411, 8/8/05)

UNITED FEDERATION OF POLICE OFFICERS, INC. AND POUGHKEEPSIES’ JOINT WATER PROJECT BOARD AND CITY OF POUGHKEEPSIE AND TOWN OF POUGHKEEPSIE AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Board affirmed the decision of the ALJ, finding that the City, Town and Joint Project Board were joint employers of the employees working for the Poughkeepisies’ Joint Water Project. The City, Town and Board each possess approval authority over the Project’s budget. While the City and Town had agreed that the City was the employer of the Project employees, the Board is not bound by the parties’ agreement in determining the identity of the public employer and fashioning the most appropriate bargaining unit. The Board remanded the matter to the Director of Public Employment Practices and Representation (Director) for further processing of the Federation’s petition to fragment the employees of the joint employer from the unit of City employees represented by CSEA. (C-5412, 8/8/05)

AMALGAMATED TRANSIT UNION, LOCAL 282 AND SENECA TRANSIT SERVICE. The Board dismissed the petition for the unit of all drivers following a secret ballot election in which a majority of employees voting cast ballots against union representation. (C-5501, 9/23/05)

DORMITORY AUTHORITY OF THE STATE OF NEW YORK. The Board designated Nicholas D. Ambrosio, Frank Reda, Jay Goldstein, Annison Cesar, Timothy McGrath and Richard Allison, Chief, Project Managers; John Kemp, Chief, Construction Services Contracts; Paul Koopman, Chief, Professional Services Contracts; as managerial and Karen Reith, Assistant Director, Budget and Payroll, as confidential. The Board found that decisions at the Authority are made based upon the recommendations of the working group or team involved in the particular policy and/or procedural issue which includes the input of the individuals designated as managerial. (E-2283, 11/3/05)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 445 and VILLAGE OF WASHINGTONVILLE and UNITED PUBLIC SERVICE EMPLOYEES UNION and WASHINGTONVILLE POLICE BENEVOLENT ASSOCIATION. The Board granted the PBA's interlocutory appeal and affirmed the decision of the Administrative Law Judge (ALJ) denying the PBA's motion to intervene in the representation proceeding commenced by a representation petition filed by the Teamsters, seeking to decertify UPSEU and be certified as the bargaining agent for a unit of Village employees. The PBA's motion to intervene sought to raise questions of unit appropriateness. The ALJ denied the motion, relying on the Board's decision in Town of Brookhaven, 19 PERB 3010 (1986), where the Board held that a representation petition which merely raises a question of majority status within a unit does not place into question the appropriateness of that unit. Here, the question of unit appropriateness was being raised by an intervenor, not the incumbent or the employer. The Board found that the preclusion against questioning unit appropriateness in a certification/decertification proceeding was equally applicable to an intervenor. (C-5535, 11/3/05)

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Management / Confidential

NO ARCHIVED MANAGEMENT / CONFIDENTIAL BOARD Decision Summaries FOR 2005.

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Improper Practices

MOHAMMED SAIDIN AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board dismissed Saidin's charge alleging that UFT did not properly conduct his grievance arbitration, finding that dissatisfaction with an employee organization's tactics or strategies in handling a grievance, without more, does not establish a violation of the Act. (U-24198, 1/27/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. The Board dismissed CSEA's improper practice charge which alleged that the County had violated the Act by changing a past practice of assigning a County vehicle to the Supervisor of Fleet Services to drive to and from work. The Board found that the practice of assigning a take-home vehicle to the Supervisor of Fleet Services did not inure to the benefit of CSEA because that title was not in CSEA's bargaining unit. To the extent that the Automotive Mechanic II had assumed some of the Supervisor's duties upon his retirement, the Board found such duties did not make him the de facto Supervisor, as alleged by CSEA and found by the Administrative Law Judge (ALJ). (U-24054, 2/9/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 830, AFSCME, AFL-CIO AND COUNTY OF NASSAU. The Board found that the County violated §209-a.1(d) of the Act by unilaterally discontinuing the past practice of assigning County vehicles to certain employees in CSEA's unit to use on the job and to drive to and from work. The ALJ had dismissed the charge, finding that CSEA had failed to establish that the County was aware of the assignment or had authorized the assignment. The Board reversed the ALJ, finding that, as to four of the five employees covered by the charge, the vehicles had been assigned to them by either a Commissioner or Deputy Commissioner, who are employees with sufficient authority to bind the County to the practice they established of assigning take-home vehicles to the affected employees. (U-24202, 2/9/05)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The Board affirmed the decision of the ALJ and found that the State violated §209-a.1(d) of the Act when it unilaterally imposed restrictions on the number and size of food containers that correction officers were permitted to bring into a correctional facility and take to their work stations. The State argued that it had a management concern to maintain the safety and security of the correctional facilities and limiting the size and number of containers brought into the facilities enabled the State to ensure that contraband would not be carried into a correctional facility. While the Board recognized that the State had a right to search for contraband, the Board held that, in balancing the State's interests with the employees' comfort, convenience and expense in bringing food to their work locations, the State's restrictions adversely affected the employees' interests and was, therefore, required to bargain the imposition of the new rule. (U-24704, 3/16/05)

HEWLETT-WOODMERE ADMINISTRATIVE AND SUPERVISORY ASSOCIATION AND HEWLETTWOODMERE UNION FREE SCHOOL DISTRICT. The Board reversed the decision of the ALJ and found that the District had violated §209-a.1(d) of the Act when it unilaterally discontinued a practice of allowing employees in the bargaining unit represented by the Association to tutor, in their off-hours and for compensation, students taught by teachers they supervised. The District argued that the practice gave the appearance of impropriety and was discontinued after a letter of concern from three officers of the PTA. The Board found that the District had failed to prove that it had an objectively demonstrable need to act in furtherance of its mission sufficient to overcome the impact its unilateral action had on a term and condition of employment: the ability of unit employees to earn money on their own time. (U-24718, 3/16/05)

JOYCE E. FEARON AND UNITED FEDERATION OF TEACHERS. The Board dismissed Fearon's improper practice charge which alleged that UFT had violated §209-a.2(c) of the Act by refusing to appeal a Chancellor's decision terminating her teaching certificate. The charge was determined to be untimely, having been filed more than four months after UFT denied her request to appeal the Chancellor's decision. The Board found that Fearon's repeated requests of UFT to reconsider its decision and UFT's reiterations of its decision not to take Fearon's appeal did not extend Fearon's time to file the charge; subsequent reiterations of a union's position do not extend the filing period or create a new one. (U-25422, 3/16/05)

PROFESSIONAL STAFF CONGRESS - CITY UNIVERISTY OF NEW YORK AND CITY UNIVERSITY OF NEW YORK. The Board affirmed the ALJ's decision but modified the remedy ordered by the ALJ. The Board found that CUNY violated the Act when it negotiated an individual employment contract with an employee whose title was covered by the collective bargaining agreement between CUNY and PSC. The employee's employment contract was not extended and he filed a grievance with PSC's assistance. It was at that time that PSC became aware of the employee's individual employment contract with CUNY. The ALJ determined that CUNY had violated §209-a.1(a) of the Act, finding that it was undisputed that CUNY asked the employee to sign the letter of agreement and that PSC was neither involved in, nor advised of, the negotiations that led to its execution. As the agreement clearly contained terms and conditions of employment, including salary, probationary terms, evaluation procedures and vacation entitlements, some terms of which exceed those granted by the collective bargaining agreement to Continuing Education Teachers, the ALJ, in determining the remedy, held that the employee should be returned to the circumstances that he would have enjoyed had the terms of the letter agreement never been in effect. The ALJ also ordered that the employee retain any benefits he received pursuant to the letter agreement that were in excess of those set forth for his title in the collective bargaining agreement. CUNY excepted to the remedy, arguing that PSC was taking the position that CUNY was required to reinstate the employee. The Board found that the individual employment agreement must be rescinded and that the employee should receive any benefits that he would have received during his employment under the PSC-CUNY collective bargaining agreement since the purpose of an order in a direct dealing case is to restore the parties to the positions they would have been in but for the improper direct dealing. As such, the employee had no right to reinstatement. His termination had nothing to do with the direct dealing and, to the extent that it might have violated the collective bargaining agreement, PSC had filed a contractual grievance. (U-23958, 4/27/05)

ANTONIO JENKINS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS. The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing Jenkins' charge alleging that the District violated the Act by removing him from his assignment as a music teacher and placing another teacher with more seniority in that assignment and that UFT violated the Act by failing to resolve his grievance and because it agreed that employees with more seniority could move teachers from their positions. Jenkins excepted to the Director's decision, arguing that he should have been permitted to interrogate the respondents; that he hasn't had adequate discovery; that evidence of a contractual violation may arguably establish coercion; and that by failing to respond, the respondents have not established that they did not violate the Act. The Board dismissed the charge against the District because Jenkins had no standing to allege violations of the duty to negotiate in good faith. The Board also dismissed the allegations against the District and UFT for discrimination. The Director found no evidence to conclude that the District had interfered with Jenkins' rights under the Act by filling his position with a more senior teacher than he and, as against UFT, that UFT had behaved arbitrarily, discriminatorily or with bad faith when it disagreed with his interpretation of the UFT-District collective bargaining agreement or when it failed to process his grievance. The Board further held that there are no provisions under the Rules of Procedure (Rules) that allow a charging party to interrogate the respondents to demonstrate that coercion occurred and that there is no requirement under the Rules that the respondents in a charge that has been deemed by the Director to be deficient, respond to the charge. (U-25597, 4/27/05)

SHARON FLEMING PERRY AND TRANSPORT WORKERS UNION OF AMERICA, LOCAL 252, AFLCIO AND METROPOLITAN TRANSIT AUTHORITY, LONG ISLAND BUS. The Board affirmed, in part, the decision of the ALJ and found that TWU did not violate the Act by failing to inform Perry of her step 1 termination grievance hearing and contractual grievance arbitration. The Board further found that the TWU representative’s statement to Perry that he would appeal an adverse Step 2 decision, even when he knew that there was no right of appeal, did not violate the Act. The Board reversed the ALJ’s finding that TWU had violated the Act by misrepresenting its position to Perry. The Board relied on the decision of the Appellate Division, Fourth Department, in Matter of Buffalo Police Benevolent Association v. PERB, 286 AD2d 993, 34 PERB ¶7031 (4th Dep’t 2001), modified, 8 AD3d 958, 37 PERB ¶7003 (4th Dep’t 2004), in which the court held that that the dissemination of false and/or misleading information concerning the status of pending grievances was not evidence of arbitrariness, discrimination or bad faith. (U-24556, 6/8/05)

AMALGAMATED TRANSIT UNION LOCAL 726, AFLCIO AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the ALJ’s decision dismissing an improper practice charge against the New York City Transit Authority, alleging that the Authority violated §§209-a.1(a) and (d) of the Act when it unilaterally implemented a new procedure for employees to apply for leave under the Family and Medical Leave Act (FMLA). The Board found that all of the elements of the pilot program instituted by the Authority on Staten Island were contained in the existing Authority policy and procedures and the focus of the pilot program was simply to standardize the intermittent FMLA leave policy throughout the Authority. As the only change in the procedure was the format of the forms to be completed and not the information to be provided, the Board dismissed the improper practice charge. (U-24942, 6/8/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND VILLAGE OF SUFFERN. The Board affirmed the ALJ’s decision, finding that the Village had violated §209-a.1(a) of the Act when it unilaterally imposed new work rules affecting employees of a proposed bargaining unit that CSEA sought to represent. The Board found that a bona fide question of representation existed as of April 5, 2004, the date CSEA’s original petition was filed. Once the petition was filed the Village had a statutory obligation to maintain the terms and conditions of employment as they existed when the petition was filed until the time that the representation question was resolved. That CSEA later withdrew and refiled its petition in May 2004 did not nullify CSEA’s charge alleging that the Village’s imposition of new work rules on April 22, 2004 violated the Act. (U-25061, 8/8/05)

JAMES EDWARD BOYKIN AND NEW YORK CITY TRANSIT AUTHORITY AND TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO. The Board dismissed Boykin’s improper practice charge against the Authority and TWU which alleged that the Authority violated §§209-a.1(a) and (b) of the Act by discriminating against him in his employment and that TWU violated §209-a.2(a) of the Act by denying him his right to participate in his employee organization. The Board found that Boykin had failed to supply any basis upon which it could exercise jurisdiction over what was essentially a claim alleging racial discrimination in employment rather than interference with protected rights under §202 of the Act. As the Board does not have jurisdiction over allegations that an employee has been discriminated against other than for the exercise of protected rights, the charge was dismissed. (U-25397, 8/8/05)

BARBARA MALONEY-BELTON AND ROSLYN UNION FREE SCHOOL DISTRICT AND ROSLYN CUSTODIAL, BUS DRIVERS AND MAINTENANCE ASSOCIATION. The Board dismissed the charge which alleged that the District violated §§209-a.1(a) and (c) of the Public Employees' Fair Employment Act (Act) when, subsequent to her retirement as a bus attendant, the District discontinued her health insurance coverage in retaliation for her friendship with the former president of the Association and the charge as against the Association which alleged that it violated §209-a.2(a) of the Act by not permitting Belton to be included in its bargaining unit. The Board found that the charge against the District should be dismissed as retirees cannot file improper practices because, as retirees, they are not public employees within the meaning of the Act. As against the District and the Association, the Board found that insufficient facts were alleged to support the charge. (U-25923, 9/23/05)

SARA-ANN P. FEARON AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board denied a motion by Fearon for reconsideration of its prior decision on the grounds of newly-discovered evidence. The Board found that no extraordinary circumstances existed which warranted the granting of the motion. Fearon alleged no new facts in support of the motion or any basis to excuse the delay in making the motion. (U-23556, 9/23/05)

NELSON C. PEREZ AND SUBWAY SURFACE SUPERVISORS ASSOCIATION AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the ALJ dismissing the charge which alleged that the Association had violated §209-a.2(c) of the Act when one of its representatives gave Perez arbitrary advice about his seniority rights. The Board found that an employee's mere disagreement with his union about the merits of a grievance or complaint is insufficient to support a finding that the union breached its duty of fair representation. (U-25565, 9/23/05)

MOHAMMAD SAIDIN AND UNITED FEDERATION OF TEACHERS, NYSUT, AFT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of the ALJ dismissing Saidin's charge which alleged that the Federation violated §209-a.2(c) of the Act when it failed to file a grievance on his behalf following the denial by the Board of Education of his license reapplication as an elementary school teacher. The Board found that the stipulated record showed only Saidin's dissatisfaction with UFT's strategy in handling his grievance, which did not establish a violation of the Act. Saidin's other allegations were likewise unsupported by record. (U-25142, 9/23/05)

TRANSPORT WORKERS UNION, LOCAL 106 TRANSIT SUPERVISORS ORGANIZATION AND NEW YORK CITY TRANSIT AUTHORITY AND TRANSPORT WORKERS UNION, LOCAL 100, AFL-CIO. The Board modified and, as modified, affirmed the decision of the ALJ dismissing the charge filed by TSO which alleged that the Authority had violated §209-a.1(d) of the Act when it unilaterally transferred exclusive bargaining unit work to Station Agents, represented by Local 100. The Board found that TSO was collaterally estopped from asserting that work exclusive to its unit had been reassigned because of its earlier charge, decided by the Board, in which the Board determined that certain work was not exclusive to the employees represented by TSO. The Board found that the dispositive issue in both cases was the same: whether the performance of inspections in the stations or zones is exclusively the work of unit employees. In the previous decision the Board found that it is not. The issue of inspections was fully litigated in the prior case. The determination that inspections are not the exclusive bargaining unit work of TSO unit employees was essential to the decision in both cases and is material and dispositive. Finally, the parties in both cases were identical. Therefore, the Board decided that the charge must be dismissed. (U-25031, 9/23/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, NASSAU LOCAL 830 and COUNTY OF NASSAU. The Board reversed the decision of the ALJ and dismissed the improper practice charge filed by CSEA alleging that the County had violated §209-a.1(d) of the Act when it discontinued the past practice of assigning County vehicles to certain employees of the County's Department of Public Works. The Board found that there was no evidence that the County had acted unilaterally and that the County had the right to re-evaluate which employees require vehicles and to make or change vehicle assignments. (U-24219, 12/19/06)

COUNTY OF PUTNAM AND PUTNAM COUNTY SHERIFF AND PUTNAM COUNTY SHERIFF'S DEPARTMENT POLICE BENEVOLENT ASSOCIATION, INC. The Board affirmed, in part, and reversed, in part, the decision of the ALJ finding that the PBA violated §209-a.2(b) of the Act when it submitted certain proposals to arbitration that were not arbitrable under §209.4(g) of the Act. The Board, relying on its decision in New York State Police Investigators Association, 30 PERB 3013 (1997), confirmed sub nom. New York State Police Investigators Association v PERB, 30 PERB 7011 (Sup Ct Albany County 1997), held that §209.4(g) limits arbitration to only those terms which are directly related to compensation, including salary, stipends, location pay, insurance and medical and hospitalization benefits and that certain subjects are specifically excluded from arbitration, such as job security, disciplinary procedures and actions, deployment or scheduling and overtime compensation. The Board's decision in City of Cohoes, 31PERB 3020 (1998), confirmed sub nom. Uniform Firefighters of Cohoes v Cuevas, 32 PERB 7026 (Sup Ct Albany County 1999), affd 276 AD2d 184, 33 PERB 7019 (3d Dep't 2000), leave to appeal denied 96 NY2d 711, 34 PERB 7018 (2001) does not control the analysis of arbitrability under §204.9(g) of the Act because a demand may be a mandatory subject of negotiations and still not be arbitrable as to deputy sheriffs because of the express language of the statute. The Board, therefore, found that the PBA's demands for Recognition and Association Rights, Personal Leave, Hours of Work, Overtime and Recall, Vacations, Grievance Procedure, Sick Leave, Disciplinary Procedure, Maintenance of Operations, Separability, Fully Bargained Agreement, and Duration of the Agreement were not arbitrable. The Board also found the PBA's demands relating to Overtime Eligibility and Sick Leave Accumulation are not arbitrable. The Board denied the County's exceptions and found that health insurance benefits for retirees and their beneficiaries are mandatory subjects of negotiations and arbitrable under §209.4(g) of the Act. The Board reversed the ALJ and found that the PBA's demand relating to retroactivity of wages and economic benefits was mandatorily negotiable and arbitrable. (U-25752, 12/19/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF WESTCHESTER. The Board affirmed the ALJ's decision dismissing CSEA's charge alleging that the County violated §209-a.1(d) of the Act when it unilaterally transferred messenger services exclusively performed by CSEA unit employees in the County's Department of Social Services to an independent contractor. The Board found that the services performed by CSEA unit employees were not described in enough detail in the record to enable it to determine that the messenger services are of the type that requires a discernible boundary analysis or to find that CSEA has retained exclusivity over any definable part of the messenger services. (U-25755, 12/19/05)

COUNTY OF ULSTER AND ULSTER COUNTY SHERIFF AND ULSTER COUNTY DEPUTY SHERIFF'S POLICE BENEVOLENT ASSOCIATION, INC. The Board affirmed the decision of the ALJ finding that the PBA's demands regarding health insurance for retirees and their dependents and retirement benefits submitted to compulsory interest arbitration by the PBA are mandatory, based upon its earlier decision in Lynbrook Police Benevolent Assn., 10 PERB 3067 (1977), revd in part sub nom. Incorporated Vil of Lynbrook v PERB, 64 AD2d 902, 11 PERB 7012 (2d Dep't 1978), revd., 48 NY2d 398, 12 PERB 7021 (1979), and arbitrable, under §209.4(g) of the Act. The Board also affirmed the ALJ's decision that the PBA's demands relating to membership dues deductions and agency shop fee and sick leave accumulation were not arbitrable under §209.4(g). (U-25870, 12/19/05)

VILLAGE OF SAUGERTIES AND VILLAGE OF SAUGERTIES POLICE BENEVOLENT ASSOCIATION. The Board affirmed the ALJ's decision that the PBA's demands relating to the accumulation of unused leave and its conversion to additional health insurance coverage for the retiree and his/her dependents were mandatory subjects of negotiations appropriately submitted to compulsory interest arbitration. (U-25832, 12/19/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, ERIE COUNTY WHITE COLLAR UNIT AND COUNTY OF ERIE AND ERIE COMMUNITY COLLEGE and ADMINISTRATORS ASSOCIATION OF ERIE COMMUNITY COLLEGE, LOCAL 3300 UNITED AUTO WORKERS. The Board denied CSEA's motion to dismiss the exceptions filed by the College to a decision of the ALJ finding that the County and the College, as a joint employer, violated §209-a.1(d) of the Act when work performed by CSEA unit employees was unilaterally transferred to non-unit employees. CSEA moved to dismiss the College's exceptions, arguing that the College is not a party to the proceeding, having no status as a sole entity, and is, therefore, precluded from filing exceptions under §213.2 of PERB's Rules of Procedure (Rules). The Board denied the motion, finding that the College was a separate legal entity and a joint employer with the sponsoring county of the employees who work for the community college. As a separate public employer, the College met the definition of party in §200.5 of the Rules and was, therefore, entitled to file exceptions to the ALJ's decision. (U-24659, 12/29/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO and STATE OF NEW YORK (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES - BROOKLYN DEVELOPMENTAL DISABILITIES SERVICE OFFICE). The Board affirmed, as modified, the decision of the ALJ finding that the State violated §209-a.1(d) of the Act by refusing to provide CSEA with information sought by CSEA to investigate and defend disciplinary charges that the State had brought against two unit employees. The State argued that it was precluded from turning over the requested information because it included Quality Assurance Investigation records that were confidential and not subject to discovery. Relying on its decision in Board of Education, City School District of the City of Albany, 6 PERB 3012 (1973), the Board reiterated that an employee organization is entitled to receive information that is necessary for the administration of the parties' collective bargaining agreement, including the investigation of grievances. The Board noted that the limitations on the release of the requested information set forth in Education Law §6527(3) and Mental Hygiene Law §33.13, were not applicable in PERB proceedings. The Board determined, however, that it was appropriate to balance the rights of the parties in the investigation and defense of a disciplinary grievance with the need to protect certain confidential patient records and ordered that the records be turned over to the arbitrator hearing the in-issue disciplinary charges for an in camera review. (U-24919, 12/29/05)

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Declaratory Rulings

STATE OF NEW YORK. The Board rejected the recommended ruling of the Administrative Law Judge (ALJ) and found that the PBA's demands regarding disciplinary actions were prohibited subjects of negotiation. The Board determined that Executive Law §215(3) governs discipline for members of the State Police and that the PBA's demands, therefore, were removed from negotiations by the legislature. In reaching its decision, the Board first needed to determine if the State's petition for declaratory ruling was timely filed. The Board found that the Rules of Procedure set no time limits for the filing of a petition for declaratory ruling in a matter that was not related to interest arbitration. The Board found that the policies of the Act would be furthered by deciding the merits of the issues raised by the parties and also found that the petition was not untimely filed. (DR-112, 3/16/05)

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Strikes

NO ARCHIVED STRIKE BOARD Decision Summaries FOR 2005.

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Local Procedures

NO ARCHIVED LOCAL PROCEDURES BOARD Decision Summaries FOR 2005.

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Other Matters

NO ARCHIVED OTHER MATTERS BOARD Decision Summaries FOR 2005.

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Decision Summaries of the Office of Public Employment Practices and Representation


Representation

CORTLAND UNITED TEACHERS, NYSUT, AFT, AFL-CIO AND CORTLAND ENLARGED CITY SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. A petition seeking placement of the newly created positions of teaching assistant and the title of social worker in a unit of teachers and allied professionals was granted, despite a challenge by the bargaining agent for the District's support staff, which sought placement of the teaching assistant title in its unit. Reliance was placed on the Board's recent decisions in Newburgh Enlarged City School District, 37 PERB 3027 (2004) and Southern Cayuga Central School District, 37 PERB 3028 (2004). (ALJ Comenzo, CP-0896, 1/18/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND WEST SENECA CENTRAL SCHOOL DISTRICT. A unit placement petition was granted adding the titles of Security Officer Part Time and Senior Security Officer Part Time to the CSEA non-instructional unit, with no objection by the District. (ALJ Fitzgerald, CP-975, 1/25/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND CITY OF JAMESTOWN. Payroll information regarding four On-call Receptionists and one Maintenance Mechanic II evidenced sufficient regularity and continuity of employment to create a substantial interest in terms and conditions of employment that warranted coverage under the Act. Absent evidence that there was no community of interest with those currently represented by CSEA, the four On-call Receptionists were placed in the unit. Inasmuch as the contract salary schedule contained the title Maintenance Mechanic II, and on evidence that CSEA represented part-time employees, the unit was clarified to include the part-time Maintenance Mechanic II. (ALJ Doerr, CP-938, 2/1/05)

JAMESTOWN CITY ADMINISTRATIVE ASSOCIATION AND CITY OF JAMESTOWN. A unit clarification petition was dismissed where the unit definition was title specific and the title at issue was not included; but the unit placement petition was granted where the Director of Youth Services was not found to meet the criteria for a managerial designation. (ALJ Fitzgerald, CP-958, 2/2/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO AND INCORPORATED VILLAGE OF LAKE SUCCESS. The ALJ granted the petition and placed the white-collar position of Police Communications Operator ("Dispatcher") in a unit of mostly blue-collar employees represented by CSEA. Although the only white-collar position in the unit, that of Clerk-Typist, was vacant, the ALJ found that a general community of interest existed between the Dispatchers and the unit employees based upon a similarity in salary, benefits, educational level and regularity of interaction between the Dispatchers and the unit employees. The ALJ also noted that the existence of the white-collar position of Clerk-Typist in the contractual recognition agreement was some evidence that the inclusion of another non-professional white-collar position in the unit would not create a conflict of interest. The placement also took into consideration the small size of the Village's workforce, that the CSEA unit includes only seventeen employees, that no other appropriate unit exists in which to place the Dispatchers and that the creation of a separate unit of only three Dispatchers, as argued by the Village, runs contrary to the Act's policy in favor of the largest unit permitting for meaningful and effective negotiations. The ALJ also rejected the Village's argument that the Dispatchers could not be placed in CSEA's unit because the Dispatchers are privy to "sensitive security information," such as juvenile arrest reports, NYSPIN information and Homeland Security alerts. That information does not create a conflict, since it is not related to unit employees' terms and conditions of employment, personnel issues or matters that might affect collective bargaining. (ALJ Blassman, CP-907, 3/9/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND VILLAGE OF SUFFERN. In a certification proceeding in which the union sought to represent a village-wide bargaining unit, the ALJ determined that certain supervisory employees, while not managerial or confidential, were not properly included in a rank-and-file unit. Therefore, the ALJ determined that two bargaining units should be established, one for supervisory employees, the other for rank-and-file employees. (ALJ Quinn, C-5411, 4/18/05)

ADMINISTRATORS ASSOCIATION OF ERIE COMMUNITY COLLEGE AND COUNTY OF ERIE AND ERIE COMMUNITY COLLEGE. The Director dismissed a petition to add a title to a unit because the position was vacant. (Director Klein, CP-997, 4/29/05)

UNITED FEDERATION OF POLICE OFFICERS, INC. AND TOWN/CITY OF POUGHKEEPSIE WATER TREATMENT FACILITY AND CITY OF POUGHKEEPSIE AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ found a joint employer relationship arising out of an inter-municipal agreement between a city and a town which established a joint water board. Finding that the at-issue employees’ non-economic terms and conditions of employment are under the control of the joint water board and one of the municipalities, while the economic terms and conditions of employment are determined by the joint water board and the legislative bodies of both municipalities, the ALJ removed the at-issue employees from the city-wide bargaining unit. (ALJ Quinn, C-5412, 5/5/05)

JOYCE M. CATALANO AND WAYNE CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed a petition seeking to fragment nurses from a bargaining unit because it was untimely filed and had several procedural defects. (Director Klein, C-5518, 5/10/05)

SYRACUSE TEACHERS ASSOCIATION AND SYRACUSE CITY SCHOOL DISTRICT AND SYRACUSE ASSOCIATION OF MANAGERS AND SUPERVISORS, SAANYS. The ALJ determined that the at-issue employees are most appropriately placed in the bargaining unit represented by the intervenor, irrespective of their current representational status. (ALJ Quinn, C-5191, 5/19/05)

UNITED FEDERATION OF POLICE OFFICERS, INC. AND COUNTY OF BROOME. The Director dismissed the petition because it was not accompanied by a declaration of authenticity. (Director Klein, C-5525, 6/28/05)

KENMORE TEACHERS ASSOCIATION and KENMORETONAWANDA UNION FREE SCHOOL DISTRICT. The unit placement petition was granted adding the title of teaching assistant to the unit represented by the Kenmore Teachers Association, with the consent of the District. (ALJ Fitzgerald, CP-989, 7/13/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND TOWN OF SOMERS. The Town’s curator and historic property administrator was found to perform a managerial function and, therefore, was not appropriately placed in the bargaining unit. (ALJ Comenzo, CP-881, 8/3/05)

PENFIELD ASSOCIATION OF EDUCATIONAL SECRETARIES, PENFIELD CENTRAL SCHOOL DISTRICT AND PENFIELD EDUCATION ASSOCIATION. The petition for unit clarification/ unit placement petition was dismissed, where the position of technology teacher on special assignment was found to be included in the unit represented by the Intervenor, and where the Petitioner’s argument was based on the duties assigned to the individual. It is the position or job title, not the individual work assignment, which is relevant in a unit placement petition. Further, where the position at issue is found to be in another bargaining unit, the appropriate petition is a decertification/ certification petition, since the petitioner is seeking removal of the title from that unit. (ALJ Fitzgerald, CP-0971, 8/30/05)

COUNTY OF SULLIVAN AND SHERIFF OF SULLIVAN COUNTY. The ALJ determined that an existing unrepresented title, Civil Deputy, was properly placed in a bargaining unit of security and civilian employees rather than the bargaining unit of deputies who are primarily engaged in law enforcement duties. (ALJ Quinn, CP-979, 8/31/05)

MAMARONECK TEACHERS' ASSOCIATION AND MAMARONECK UNION FREE SCHOOL DISTRICT. The teachers' association filed a unit placement petition seeking to accrete teaching assistants and both full and part-time nurses to its unit. At the outset of the hearing, the District stated that it did not object to the accretion of the assistants. Since the number of assistants accreted did not affect the unit's majority status, this portion of the petition was granted. The hearing therefore focused on the appropriateness of accreting the nurses to the unit. The ALJ found that the full-time nurses shared a greater community of interest with the teachers than with the other units, and therefore placed them in the Association's unit. He did not place the part-time nurses, who were employed at private schools, in the unit since their employment was not substantially and unequivocally public. (ALJ Maier, CP-981, 9/1/05)

GANANDA TRANSPORTATION ASSOCIATION; GANANDA CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000 AFSCME, AFL-CIO, WAYNE COUNTY LOCAL 859, GANANDA CENTRAL SCHOOL DISTRICT EMPLOYEES UNIT. A petition seeking the fragmentation of transportation department employees from a long-standing non-pedagogical unit was dismissed where the District opposed the petition and petitioners failed to produce any evidence of either a conflict of interest or inadequate representation. That bus operators are subject to Federal and State standards does not render them "professional employees" entitled to their own unit. That the employees in the petitioned-for titles were excluded from negotiations for a successor agreement was not improper where the District was required to maintain the status quo as to those sought to be fragmented. (ALJ Doerr, C-5513, 9/27/05)

AMALGAMATED TRANSIT UNION, LOCAL 282 AND REGIONAL TRANSIT SERVICES, INC. The petition for unit placement seeking to add three clerical employees to ATU's blue-collar unit was granted, where the positions were found to share a general community of interest with unit members. The employer's argument that the accretion of the three clericals to ATU's unit does not represent the most appropriate unit as there are other clerical employees at RTS was rejected. The additional clericals hold the titles administrative assistant, executive secretary and senior executive secretary, work in the administration building and do not perform typical clerical duties. That one of the clericals sought in the petition performed some duties for the director of human resources did not render her confidential, as there was no evidence that she had been consulted, confided in, or worked in a capacity of trust and confidence with the §201.7(a)(ii) manager. (ALJ Doerr, CP-990, 10/11/05)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND COUNTY OF RENSSELAER AND UNITED PUBLIC SERVICE EMPLOYEES UNION. The ALJ dismissed a petition seeking to fragment health care professionals from a County-wide bargaining unit where the petitioner did not assert facts warranting fragmentation under PERB's traditional fragmentation standards. In reaching that conclusion, the ALJ held that the Board's decision in Ichabod Crane Central School District, 35 PERB 3042 (2000) (subsequent history omitted) did not apply. (ALJ Quinn, C-5521, 10/17/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND NIAGARA FRONTIER TRANSPORTATION AUTHORITY. A unit placement petition was granted, adding the title of Money Center Supervisor to the CSEA unit, upon the consent of the NFTA. (ALJ Fitzgerald, CP-948, 10/18/05)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK. A unit placement petition was granted, adding certain employees in the title of Addictions Program Specialist 4 to the PEF unit, upon the consent of the parties, and designating certain others in the title as managerial. (Director Klein, CP-486, 11/1/05)

MARY ANN BARLETTA AND TOWN OF CLAY AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 317. The Director dismissed a decertification petition filed by individuals as untimely. (Director Klein, C-5548, 11/17/05)

KINGS PARK CLASSROOM TEACHERS ASSOCIATION, INC. AND KINGS PARK CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The petition, seeking the placement of the titles of Physical Therapist and Occupational Therapist in the professional/teachers unit represented by the Petitioner, was granted upon the consent of the Employer and the Intervenor CSEA. (ALJ Blassman, CP-1022, 12/20/05)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 264, AFL-CIO, FOOD SERVICE UNIT AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO. The petition for unit clarification/unit placement for summer food service program titles was granted as to the placement petition, due to the community of interest among summer program titles and school year titles, and that the same employees were employed in both programs. The titles were therefore added to the unit. (ALJ Fitzgerald, CP-1006, 12/21/05)

KAREN OROSCO AND LACKAWANNA CITY SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed a certification petition filed by an individual employee for lack of standing. (Director Klein, C-5563, 12/21/05)

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Management / Confidential

SACHEM CENTRAL SCHOOL DISTRICT. The School District's application seeking to designate Marilyn Harned, Senior Clerk Typist, as confidential under the Act was granted with the consent of the United Public Service Employees Union. The application to designate as managerial the unrepresented position of Gail Grenzig, Assistant Personnel Administrator, was also granted. (ALJ Cacavas, E-2361, 2/7/05)

TOWN OF SOUTHOLD. Where the Deputy Town Comptroller, Assistant Town Attorneys, Senior Stenographer, Secretary to the Supervisor, Administrative Assistant, Secretarial Assistant, Secretary to the Town Attorney, Senior Account Clerk and Deputy Town Clerks have a confidential relationship to managerial employees in the performance of their managerial responsibilities, confidential designations were warranted. In addition, where the Town Comptroller, Town Attorney, Assistant Town Attorney (part-time), Senior Citizen Program Supervisor, Solid Waste Coordinator, Town Planning Director, Executive Assistant, Chief Building Inspector and Network & Systems Administrator perform managerial functions, as those are defined in the Act, managerial designations were warranted. (ALJ Cacavas, E-2359, 3/23/05)

ITHACA CITY SCHOOL DISTRICT. Two Senior Typists were designated confidential, with the consent of the existing bargaining agent. (ALJ Comenzo, E-2366, 3/31/05)

PORT JEFFERSON UNION FREE SCHOOL DISTRICT. The ALJ granted an application to designate the payroll supervisor as confidential within the meaning of the Act. The factual allegations in the petition were capable of supporting such a position, and the employee organization which represented her consented to the designation. (ALJ Maier, E-2368, 5/12/05)

WESTBURY UNION FREE SCHOOL DISTRICT. The District’s application, seeking to designate the Secretary to the Superintendent of Schools, as confidential within the meaning of §201.7(a) of the Act was granted upon the consent of the United Public Service Employees Union Secretarial Unit. (ALJ Blassman, E-2364, 5/27/05)

FULTON-MONTGOMERY COMMUNITY COLLEGE. Upon consent, the College’s Senior Typist, who reports to the Vice President of Administration and Finance, and Senior Stenographer, who reports to the Vice President for Student and Community Services, were designated as confidential pursuant to §201.7 of the Act. (ALJ Comenzo, E-2369, 5/31/05)

HAMBURG CENTRAL SCHOOL DISTRICT. The District’s application to designate a payroll clerk as confidential was granted, where the bargaining representative, Teamsters Local 264, IBT, consented to the designation, and the factual assertions in the petition supported such designation. (ALJ Fitzgerald, E-2371 06/1/05)

RIVERHEAD CENTRAL SCHOOL DISTRICT. Where the Secretary to the Superintendent of Schools, the Secretary to the Assistant Superintendent for Personnel, and the Payroll Supervisor in the Office of the Assistant Superintendent for Business have confidential relationships to managerial employees in their performance of managerial responsibilities, confidential designations are warranted. (ALJ Cacavas, E-2367 06/13/05)

COMMACK UNION FREE SCHOOL DISTRICT. The District’s application, seeking to designate two secretarial positions as confidential, was granted, in part, and denied, in part. Although the union consented to the confidential designation of the Secretary to the Assistant Superintendent for Special Education, the application was dismissed as to that position, since the pleadings and supporting papers failed to set forth facts that would support the designation. The position of Secretary to the Assistant Superintendent for Elementary Education was designated confidential based upon the pleadings, supporting documents and consent of the union. (ALJ Blassman, E-2363, 6/13/05)

TOWN OF CAMILLUS. The Town’s application to designate the Secretary to the Chief of Police as confidential was granted, where the bargaining representative, Camillus Clerical Workers Association, consented to the designation, and the factual assertions in the application supported such designation. (Director Klein, E-2374, 08/10/05)

CENTER MORICHES UNION FREE SCHOOL DISTRICT. The District’s application to designate the Principal Account Clerk as confidential in accordance with the Act was granted upon the consent of the Center Moriches Office Staff Association, which represented the position. (ALJ Blassman, E-2377, 8/29/05)

DORMITORY AUTHORITY OF THE STATE OF NEW YORK. The ALJ designated an employee as confidential because of her assistance to a managerial employee engaged in labor relations. He denied the application to designate others as managerial policy formulators because they did not function at the highest level of government, where the employer’s goals, objectives and methods of operation are determined. (ALJ Quinn, E-2283, 8/31/05)

SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT. The District's application to designate Joanne Sprague, the Payroll Supervisor, as confidential in accordance with the Act was granted upon the consent of CSEA, Inc., Local 1000, which represented the position. (ALJ Blassman, E-2375, 9/16/05)

SULLIVAN COUNTY COMMUNITY COLLEGE. The College's application to designate Penny Constant, the Administrative Associate to the Dean of Enrollment Management and Student Development Services, as confidential in accordance with the Act was granted upon the consent of Local 445, International Brotherhood of Teamsters, which represented the position. (ALJ Quinn, E-2325, 10/31/05)

RIVERHEAD CENTRAL SCHOOL DISTRICT. The District's application, seeking to designate Dorothy Grasso, Administrative Assistant to the Assistant Superintendent for Curriculum and Instruction, as confidential within the meaning of §201.7(a) of the Act was granted upon the consent of the Civil Service Employees Association, Inc., Local 1000. (ALJ Blassman, E-2379, 11/8/05)

PLAINEDGE UNION FREE SCHOOL DISTRICT. The District's application, seeking to designate Diane Sheeran, Secretary to the Assistant Superintendent for Curriculum and Instruction, as confidential within the meaning of §201.7(a) of the Act was granted upon the consent of the Civil Service Employees Association, Inc., Local 1000. (ALJ Blassman, E-2380, 11/9/05)

TOWN OF SOUTHAMPTON. The Town's application for the designation of John Capone, the Network and Systems Coordinator, as confidential in accordance with the criteria set forth in §201.7(a) of the Act was granted upon the consent of CSEA. (ALJ Blassman, E-2381, 11/9/05)

COUNTY OF ULSTER. The ALJ designated Geraldine M. Cavosella, Administrative Assistant, as confidential on consent of the bargaining agent representing the unit in which the title was included. (ALJ Quinn, E-2370, 12/5/05)

OYSTER BAY-EAST NORWICH CENTRAL SCHOOL DISTRICT. The District's application, seeking to designate Margaret Nolan, Stenographic Secretary and District Clerk, and Linda Ninesling, Senior Account Clerk and Secretary to the Assistant Superintendent, as confidential within the meaning of §201.7(a) of the Act was granted upon the consent of the Civil Service Employees Association, Inc., Local 1000. (ALJ Blassman, E-2384, 12/8/05)

SOUTH COUNTRY CENTRAL SCHOOL DISTRICT. Where school district employees Joyce Kinney, Secretary to the Assistant Superintendent for Business; Antoinette Matarese, Administrative Assistant for Technology; Cadley Barone, Secretary to the Assistant Superintendent for Human Resources; and Marianne Brando, Secretary to the Superintendent of Schools had confidential relationship to managerial employees in their performance of managerial responsibilities, confidential designation was warranted. (ALJ Cacavas, E-2382, 12/9/05)

STARPOINT CENTRAL SCHOOL DISTRICT. Fran Morgan, Payroll Clerk in the District's Business Office, reported directly to the Director of Administrative Services who sat at the table in negotiations with the District's five bargaining units. She was designated confidential based on her exposure to District proposals and her relationship of confidence and trust with the Director. (ALJ Doerr, E-2378, 12/14/05)

SCHODACK CENTRAL SCHOOL DISTRICT. The Director designated Sherri L. D. Fisher, Director of Business and Support Services, as managerial and Kim P. Austin, Secretary to the Director of Business and Support Services, Jill M. Filkins, Payroll and Benefits Clerk, and Dianne M. Topple, District Treasurer, as confidential. (Director Klein, E-2388, 12/16/05)

HARTFORD CENTRAL SCHOOL DISTRICT. The Director designated Marjorie Durling, Superintendent's Secretary, as confidential. (Director Klein, E-2389, 12/23/05)

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Improper Practices

CYNTHIA LODGE AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ dismissed an improper practice charge alleging that the District retaliated against Lodge for making a safety complaint to police on the basis that such action, taken without union assistance, is not "protected" under the Act. An individual employee's complaint about an incident or safety concern does not meet the standard of "engaged in protected activity", required to establish a prima facie case. Even if Lodge, however, had established that element of the charge, her proof failed to establish that "but for" the police report, the adverse action against her would not have occurred. The mere timing of events alone is insufficient to establish the required nexus between the employee's action and the alleged retaliatory response by the employer. (ALJ Cacavas, U-23674, 1/3/05)

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 704 AND CITY OF YONKERS. The improper practice charge was deferred to the parties' contractual grievance procedure as the Association has filed a grievance on the same facts as pled in the charge. (ALJ Comenzo, U-25307, 1/13/05)

EAST ROCHESTER POLICE BENEVOLENT ASSOCIATION AND TOWN/ VILLAGE OF EAST ROCHESTER. An improper practice charge, alleging that the Village violated §209-a.1(d) of the Act by directly dealing with a police officer as to his terms and conditions of employment and by agreeing to provide benefits in excess of those set forth in the collective bargaining agreement, was dismissed as to the direct dealing allegation due to a finding that no negotiations occurred between the officer and the Village. The allegation that benefits were provided in excess of the contract was conditionally deferred to the parties' grievance procedure since only an alleged violation of subsection (d) was pled, necessitating an interpretation of the parties' agreement. (ALJ Fitzgerald, U-25111, 1/26/05)

ANTONIO JENKINS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS. The Director of Public Employment Practices and Representation dismissed the charge alleging that the District and the UFT violated the Act when Jenkins was removed as a music teacher for lack of jurisdiction and for failure to arguably establish any violation. (Director Klein, U-25597, 2/2/05)

AMALGAMATED TRANSIT UNION LOCAL 726, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ dismissed a charge alleging that the employer violated §209-a.1(d) of the Act when it unilaterally changed various aspects of the procedure used by empoyees to apply for leave pursuant to the Family and Medical Leave Act. Specifically, the ATU alleged that the Authority changed the amount of advance notice required for use of intermittent leave, required employees to adapt their work schedules to accommodate intermittent leave, required employees to attend counseling and to use a particular form when applying for intermittent leave, and required certain submission procedures when applying for leave. The ALJ found that the Authority did not institute a new policy but merely sought to more consistently administer the existing one. Specifically, the ALJ found that the notice requirements were not changed, nor was the requirement that employees adapt their work schedules to accommodate intermittent leave. Further, the ALJ concluded that the Authority did not require new procedures for submitting the form, nor did it require the submission of a new form, and that the requirement of counseling sessions was not a change in existing practice. Accordingly, the charge was dismissed. (ALJ Maier, U-24942, 2/8/05)

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 200 UNITED AND WEST GENESEE CENTRAL SCHOOL DISTRICT. The ALJ found that the District violated §209-a.1(c) of the Act by transferring SEIU's president to another work location in retaliation for protected statements he made during private conversations with unit employees concerning employment-related matters. The ALJ rejected the District's defense that it transferred the union president based on reports from the unit employees that they felt uncomfortable with the statements made to them by the union president. The ALJ found that the statements did not lose their protection simply because the unit employees did not like what they heard. (ALJ Quinn, U-24935, 2/10/05)

WAYNE COUNTY SHERIFF'S POLICE OFFICER ASSOCIATION AND COUNTY OF WAYNE AND WAYNE COUNTY SHERIFF. The improper practice charge alleging a violation of §209-a.1(d) of the Act, when the employer unilaterally eliminated a half hour of overtime for employees participating in a "Take Home Car" program, was dismissed. The ALJ found that while it may have met the other indicia of a negotiable past practice, a decrease in staffing or scheduling is a nonmandatory issue, which the County is under no obligation to bargain. Additionally, the change was consistent with the express terms of the parties' collective bargaining agreement, which defines the employees' work week, and the County may, therefore, revert to those terms without further negotiations. (ALJ Fitzgerald, U-24815, 2/16/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, SUNY PURCHASE LOCAL 637 AND STATE OF NEW YORK (STATE UNIVERSITY OF NEW YORK). The ALJ dismissed two elements of a three-part charge. First, the ALJ dismissed an alleged violation of §§209-a.1(a) and (c) on the ground that there was no evidence that the affected employee had engaged in protected activities. Second, the ALJ dismissed an allegation of the same violation on the ground that the person responsible for the at-issue conduct bore no improper motivation. However, the third aspect of the charge, dealing with an improperly motivated search of an employee's motor vehicle records on the New York State Police Information Network System, constituted improperly motivated conduct. Although the evidence was circumstantial, the ALJ concluded that the record, as a whole, established that the search was retaliatory in violation of §§209-a.1(a) and (c) of the Act. (ALJ Quinn, U-24432, 2/18/05)

BRITTONKILL TEACHERS ASSOCIATION, NYSUT, AFL-CIO AND BRITTONKILL (BRUNSWICK) CENTRAL SCHOOL DISTRICT. The charge was deferred to the parties' contractual grievance procedure as the Association has filed a grievance on the same facts as pled in the charge. (ALJ Comenzo, U-25549, 3/1/05)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO, ONEIDA COUNTY SHERIFF'S EMPLOYEES ASSOCIATION, LOCAL 1249 AND COUNTY OF ONEIDA AND ONEIDA COUNTY SHERIFF. Because the charging party has filed a grievance under the parties' existing collective bargaining agreement concerning conduct at issue in an improper practice charge, the ALJ issued a jurisdictional deferral. (ALJ Quinn, U-25279, 3/1/05)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO, LOCALS 2796 AND 102 AND STATE OF NEW YORK (OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION). Because grievances have been filed under the parties' expired collective bargaining agreement concerning conduct at issue in an improper practice charge, the ALJ issued a merits deferral. (ALJ Quinn, U-25371, 3/1/05)

SHARON FLEMING PERRY AND TRANSPORT WORKERS UNION OF AMERICA, LOCAL 252, AFLCIO AND MTA LONG ISLAND BUS. The TWU was found to have violated §209-a.2(c) of the Act when a representative signed a grievance form indicating that he would appeal its ruling to the next step and told the grievant that it was her right to appeal and he would appeal with her, then did nothing. The ALJ found it irrelevant that the representative had allegedly earlier told the grievant that she had no rights to appeal and that, in fact, there was no mechanism in the collective bargaining agreement for movement to the next step. The representative acted in bad faith when he signed the form, knowing that there was no right to further appeal the matter and having no intention of pursuing an appeal. Dismissed were claims that the TWU violated the Act when it failed to notify the grievant of hearing dates, where the proof established that in one instance it had attempted to do so and in the other, that it had made a determination that the grievant's participation was not necessary. The charging party failed, with respect to these latter claims, to show that TWU union acted arbitrarily, in bad faith or that its actions discriminated against her as defined by the Act. (ALJ Cacavas, U-24556, 3/7/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES). The ALJ found that the charging party was entitled to information contained in a Quality Assurance investigation file compiled pursuant to Mental Hygiene Law §29.29 to investigate and defend disciplinary charges brought against a unit employee, notwithstanding the ban against disclosure of such information pursuant to Education Law §6527(3). According to the ALJ, the ban against such disclosure did not apply to requests for information under the Taylor Law to investigate and defend disciplinary charges. Further, because the Quality Assurance investigation file was turned over to the employer's Office of Employee Relations to prosecute the disciplinary charges, the ALJ observed that the information contained therein ceased to function as a Quality Assurance investigation file, but became, instead, a disciplinary investigation file. He concluded, therefore, that the ban on disclosing information in a Quality Assurance investigation ceased to have any applicability to the file. (ALJ Quinn, U-24919, 3/17/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, DORMITORY AUTHORITY, LOCAL 698 AND DORMITORY AUTHORITY OF THE STATE OF NEW YORK. The employer's unsatisfactory rating of a probationary employee in each probationary review, extension of the employee's probationary period to one year and demotion of the employee at the end of that year were not improperly motivated. (ALJ Comenzo, U-23542, 3/22/05)

UNIONDALE ADMINISTRATORS ASSOCIATION AND UNIONDALE UNION FREE SCHOOL DISTRICT. The District was found to have violated §209-a.1(d) of the Act when it unilaterally increased the hours of work and changed the departure time of six unit Directors. The District assigned the Directors to supervise the Alternate High School (AHS) and to be present at the AHS one evening every other week, in addition to their regular work hours and workload. The District's claim that the added duties are an inherent part of the Directors' occupation was not a defense to the alleged increase in work hours or change in departure time. The Association's claim of increased workload during the Directors' day hours was rejected for lack of proof that the District required the Directors to spend a specific amount of time during the day on AHS work and on their regular work, as required by Capital Region BOCES, 36 PERB 3004 (2003). The District's compelling need defense was rejected, since the District had not negotiated the change with the Association to the point of impasse before implemention, nor did it negotiate the issue thereafter. The ALJ dismissed the alleged violation of §209-a.1(a) of the Act, since the facts alleged to support that violation were not pled in the charge. (ALJ Blassman, U-24654, 3/22/05)

AMALGAMATED TRANSIT UNION, LOCAL 282 AND REGIONAL TRANSIT SERVICE. The Director dismissed a charge alleging that the employer unilaterally changed the dental insurance plan for retirees inasmuch as there is no Taylor Law duty to bargain on behalf of current retirees. (Director Klein, U-25757, 3/29/05)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK (EDUCATION DEPARTMENT). The charge was deferred to a grievance pending under the parties' contractual grievance procedure, which ends in binding arbitration. (ALJ Comenzo, U-25424, 3/29/05)

LAWRENCE FACILITIES MANAGEMENT ASSOCIATION, NYSUT, AFT, AFL-CIO AND LAWRENCE UNION FREE SCHOOL DISTRICT. The ALJ found that the District had violated §209-a.1(d) of the Act by unilaterally changing the procedure for the distribution of overtime. Testimony established that the prior practice for overtime distribution was unequivocal and had been in effect since at least 1989. In addition, the practice was communicated to the Association President, upon his hire, by the District's Director of Facilities and no claim was made by the District that the practice was implemented without authority or continued without the District's knowledge. The ALJ rejected a waiver defense which relied upon general contract language. (ALJ Cacavas, U-24639, 3/31/05)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. and STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES-FRANKLIN CORRECTIONAL FACILITY) When DOCS unilaterally reduced the number of incidental days available to unit employees, the matter did not, as alleged by DOCS, involve management's right to staff but rather the availability of paid time off. Further rejected was DOCS' argument that as the change breached an agreement reached in the course of a labor/management meeting, it should be deferred to the parties' grievance arbitration mechanism contained in their collective bargaining agreement. In declining to follow a determination of another ALJ that the dispute resolution procedure language of the parties' agreement was an arguable source of right to the charging party, the ALJ determined that the agreement provided for the filing of grievances with regard to issues arising under the implementation, not breach of a labor/management agreement. The charge so pled and stipulated to, however, complained only of a breach of an agreement and was beyond PERB's jurisdiction. The charge was therefore dismissed in its entirety. (ALJ Doerr, U-25074, 4/6/05)

ERIE COUNTY SHERIFF'S POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF ERIE AND ERIE COUNTY SHERIFF. The Director dismissed the charge which alleged the unilateral adoption of a procedure to review the employer's denial of claims under the General Municipal Law as untimely and for failure to arguably establish any change in practice. (Director Klein, U-25728, 4/11/05)

AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1635 AND CITY OF ROCHESTER. An improper practice charge, alleging that the City violated §§209-a.1 (a), (c) and (d) of the Act when one or more of the supervisors in the Department of Environmental Services engaged in a pattern of harassment and discrimination against union steward Richard Paolotto, was dismissed for failure to establish a prima facie case where AFSCME's witnesses presented conflicting explanations for the complained-of behavior, and no evidence of union animus was found. The subsection (d) allegation was dismissed on both procedural and substantive grounds. (ALJ Fitzgerald, U-25045 4/13/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND VILLAGE OF SUFFERN. The ALJ determined that the Village violated the Act by changing the status quo in the terms and conditions of employment for employees while a representation question was pending. According to the ALJ, such a representation question arises regarding unrepresented employees when the employer receives a demand for recognition. Here, when the employer received the demand for recognition, it was exploring the at-issue changes in the employees' terms and conditions of employment, which it was free to continue thereafter. However, the ALJ held that the employer was not free to implement the changes once the demand for recognition was received. The ALJ held, therefore, that the employer violated §209-a.1(a) of the Act. (ALJ Quinn, U-25061, 4/18/05)

TRANSPORT WORKERS UNION, LOCAL 106 TRANSIT SUPERVISORS ORGANIZATION AND NEW YORK TRANSIT AUTHORITY AND TRANSPORT WORKERS UNION, LOCAL 100, AFL-CIO. An ALJ dismissed a charge alleging that the NYCTA violated §209-a.1(d) of the Act by unilaterally transferring certain duties performed by station supervisor level 2 employees to non-unit employees. Specifically, the work in question was the inspection of certain areas in and around transit facilities. The ALJ held, however, that the work had not been exclusively performed since the station supervisor level 1 employees had also performed the work in question. Accordingly, the charge was dismissed. (ALJ Maier, U-25031, 4/27/05)

JAMES EDWARD BOYKIN AND NEW YORK CITY TRANSIT AUTHORITY AND TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO. Where the charging party’s offer of proof at the pre-hearing conference established that his case was based upon allegations of racism, racial discrimination and constitutional violations, the charge was dismissed as beyond the jurisdiction of PERB. Further, vague, conclusory assertions that an employer and union are “cohorts” is insufficient support for a cause of action. (ALJ Cacavas, U25397, 5/11/05)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (EDUCATION DEPARTMENT). A charge that the shifts of certain bargaining unit employees were unilaterally altered by starting and ending them two hours later was dismissed as the record facts evidenced that no shift change was either announced or implemented as of the date of the filing of the charge. (ALJ Comenzo, U-23223, 5/13/05)

GREECE POLICE UNIFORMED PATROLMEN’S ASSOCIATION AND TOWN OF GREECE. The improper practice charge was deferred to the parties’ contractual grievance procedure as the Association has filed a grievance on the same facts as pled in the charge and the parties agree that deferral would be appropriate. (ALJ Doerr, U-25805, 5/23/05)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - ELMIRA CORRECTIONAL FACILITY). Upon motion, the ALJ dismissed the Association’s charge alleging that the State violated the Act when it ceased the practice of operating the Elmira Correctional Facility on a modified schedule on the opening day of deer hunting season. Since there was no change in the manner by which preference for days off are granted or in the number of days a member is permitted to take off during the year, the matter was held to primarily affect staffing levels, which is not a mandatorily bargainable subject matter, and which privileges the employer to act unilaterally. (ALJ Blassman, U-24827, 5/19/05)

NISKAYUNA TEACHERS ASSOCIATION AND NISKAYUNA CENTRAL SCHOOL DISTRICT. The charge was deferred to the parties’ grievance procedure as the Association has filed a contractual grievance related to the subject matter of the charge. (ALJ Comenzo, U-25731, 6/1/05)

PELHAM FIREMAN’S TAYLOR ACT COMMITTEE AND VILLAGE OF PELHAM. The charge was deferred to the parties’ grievance procedure as the charging party has filed a contractual grievance related to the subject matter of the charge. (ALJ Comenzo, U-25825, 6/1/05)

RITA COLON AND BRIDGE AND TUNNEL OFFICERS BENEVOLENT ASSOCIATION. Where a union member’s disagreement with the bargaining representative is based on internal union matters and decisions regarding deployment of its officers, the charge before PERB is dismissed because it is beyond the agency’s jurisdiction. Here the charging party requested salary information for union executive board members and the union’s authority for its policies on release time for its officers. She claimed that the union policy on release time went beyond that provided for in the collective bargaining agreement. The charge was dismissed based upon PERB’s longstanding case law providing that issues relating to internal union affairs are beyond its jurisdiction where they neither affect the employment relationship nor violate any fundamental purposes or policies of the Act. (ALJ Cacavas, U25544, 6/3/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC. LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. The charge was deferred to the parties’ contractual grievance procedure since CSEA has filed contractual grievances on the same or similar facts as pled in the charge. (ALJ Cacavas, U-25576, 6/6/05)

PROFESSIONAL STAFF CONGRESS/CITY UNIVERSITY OF NEW YORK AND CITY UNIVERSITY OF NEW YORK. Where an employer discontinues a past practice which is contrary to the express terms of its collective bargaining agreement with the union, there is no violation of the Act even if the employer acted unilaterally. The fact that at the time of the action the collective bargaining agreement between the parties had expired and negotiations for a successor agreement were underway, does not alter the analysis. (ALJ Cacavas, U-25164, 6/9/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND TOWN OF CATSKILL. The charge was deferred to the parties’ grievance procedure as the Association has filed a contractual grievance related to the subject matter of the charge. (Director Klein, U-25663, 6/9/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, MONROE COUNTY LOCAL 828, MONROE COUNTY EMPLOYEES UNIT 7400 AND COUNTY OF MONROE. The County was found to have violated §§209-a.1(a) and (c) of the Act when it denied a CSEA officer and steward in the Department of Environmental Services a promotion to one of three available Station Mechanic positions, allegedly on the basis of his performance in the interview; and when the management representative overseeing the selection process made a statement at a grievance hearing on the same issue that the reason he did not receive the promotion was that he “sits on the wrong side of the table.” (ALJ Fitzgerald, U-24882, 6/14/05)

BARBARA MALONEY-BELTON AND ROSLYN UNION FREE SCHOOL DISTRICT AND ROSLYN CUSTODIAL, BUS DRIVERS AND MAINTENANCE ASSOCIATION. The Director dismissed the charge of interference filed by a retiree because, among other deficiencies in her charge as pled, retirees have no rights under the Taylor Law. (Director Klein, U-25923, 6/16/05)

NELSON C. PEREZ AND SUBWAY SURFACE SUPERVISORS ASSOCIATION AND NEW YORK CITY TRANSIT AUTHORITY. The ALJ granted the union’s motion to dismiss based upon an affidavit which was submitted, unopposed by the charging party, establishing that the advice given to Perez was not arbitrary, and that Perez was simply dissatisfied with the advice. The charge, as clarified by the ALJ who conferenced the case, alleged that the advice the SSSA representative gave Perez concerning seniority rights was in violation of the duty of fair representation. No facts, however, were established to support this allegation, and the uncontroverted evidence in the union’s moving papers contradicted that assertion. Accordingly, the motion was granted and the charge was dismissed. (ALJ Maier, U-25565, 6/16/05)

AFSCME LOCAL 815, COUNCIL 66, AFL-CIO AND VILLAGE OF SOLVAY. The charge was deferred to the parties’ grievance procedure as the charging party has filed a contractual grievance related to the subject matter of the charge. (ALJ Comenzo, U-25871, 6/21/05)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The ALJ conditionally dismissed an improper practice charge concerning the alleged failure to continue the terms of an expired collective bargaining agreement while a grievance regarding the dispute runs its course. (ALJ Quinn, U-25642, 6/22/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The ALJ conditionally dismissed an improper practice charge pending a determination as to its jurisdiction, following the charging party’s claim that the at-issue conduct is a breach of a settlement in an earlier improper practice charge. (ALJ Quinn, U-25686, 6/23/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, OFFICE OF GENERAL SERVICES LOCAL 680 AND STATE OF NEW YORK (OFFICE OF GENERAL SERVICES). The ALJ dismissed an improper practice charge which alleged a discriminatory termination of a unit employee. According to the ALJ, the employee was terminated for legitimate business reasons, not in retaliation for the exercise of protected rights. (ALJ Quinn, U-24937, 6/23/05)

WESTCHESTER COUNTY CORRECTION OFFICERS BENEVOLENT ASSOCIATION AND COUNTY OF WESTCHESTER. The ALJ conditionally dismissed a portion of a charge, the source of which was arguably based upon a contractual claim of right, and dismissed that portion of the charge which claimed a violation of an agreement entered into between the Association and the County. The charge alleged that the County had violated an agreement which had settled a previously filed grievance claiming a breach of the collective bargaining agreement regarding overtime assignments. The charge also claimed that the County violated the past practice which arose as a result of the County’s compliance with the agreement. Since it is the Board’s policy to defer charges in which there is an arguable source of right stemming from an agreement, a portion of the charge was deferred. That portion of the charge alleging a violation of the agreement was dismissed on jurisdictional grounds. To the extent that the charge alleged a violation of a past practice, it was dismissed since compliance with an agreement does not give rise to a past practice claim. (ALJ Maier, U-25766, 6/23/05)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). Revisions of a directive allowing the withholding of employees’ paychecks for failure to timely submit timecards and requiring employees calling in sick to call in one hour prior to pre-shift briefing rather than the beginning of the shift and to call in each day of a multi-day absence rather than at the beginning and the end of that absence were determined to be unilateral changes in mandatory subjects of bargaining and, therefore, violative of §209-a.1(d) of the Act. (ALJ Comenzo, U-23174, 6/24/05)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION , INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES) AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The charge that work exclusive to NYSCOPBA’s bargaining unit had been transferred to CSEA unit employees was dismissed as any exclusivity to NYSCOPBA’s unit had been breached by the regular and open performance of the work by CSEA unit employees in 2000 and 2001. (ALJ Comenzo, U-24002, 7/1/05)

LUCY RODRIGUEZ-RIVERA AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS. The Director dismissed the charge for failure to comply with the filing requirements of the Rules. (Director Klein, U-25802, 7/6/05)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 456 AND VILLAGE OF MOUNT KISCO. Upon an offer of proof, IBT’s charge, alleging that the Village unilaterally changed the hours of work of certain Highway Department employees and refused to pay them overtime for hours previously compensated at the overtime rate, was dismissed based upon the Village’s contractual duty satisfaction defense. It was undisputed that the Village had changed the regular hours of Sweeper Operators, requiring them to begin their workday on Tuesdays and Thursdays at 4:30 a.m. instead of 7:00 a.m., and that the Village stopped paying overtime for work between the hours of 4:30 a.m. and 7:00 a.m. Although the prior schedule had existed for many years, the ALJ held that the Village had not unilaterally changed the hours, since the IBT had specifically agreed in the collective bargaining agreement (CBA) that such a change was permissible. As to the failure to pay overtime, the ALJ noted that the CBA defined the hours that qualify for overtime payment and the disputed hours no longer fell within the definition of overtime. (ALJ Blassman, U-25284, 7/7/05)

UNITED FEDERATION OF TEACHERS, AFT, NYSUT, AFL-CIO (SAIDIN). The ALJ dismissed a charge which alleged that the UFT violated §209-a.2(c) of the Act by failing to file a grievance on Saidin’s behalf after he was denied a license as an elementary school teacher. The parties agreed that the preliminary issue to be addressed was whether the UFT could file such a grievance under its collective bargaining agreement. Saidin conceded that if no such right existed, he would not have a viable charge against the UFT. Based upon a stipulated record submitted by the parties, the ALJ concluded that no such right to file a grievance existed, and that there was no showing that the UFT acted in an arbitrary, discriminatory or bad faith manner. Accordingly, the charge was dismissed. (ALJ Maier, U-25142, 7/12/05)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, COUNCIL 82, AFSCME, AFL-CIO AND COUNTY OF ALBANY AND ALBANY COUNTY SHERIFF. The charge was deferred to the parties’ contractual grievance procedure as the charging party has filed grievances on the same facts as pled in the charge. (ALJ Comenzo, U-25961, 7/12/05)

SUFFOLK COUNTY POLICE BENEVOLENT ASSOCIATION, INC. AND COUNTY OF SUFFOLK. The ALJ dismissed a charge alleging that the County violated §209-a.1(d) of the Act when it transferred the unit work of emergency medical services training from a police officer to a civilian employee. The ALJ employed the balancing test set forth in Niagara Frontier Transportation Authority, 18 PERB ¶3083(1985), which was thereafter further defined in cases such as Fairview Fire District, 29 PERB ¶3042(1996). He found that since there was a change in job qualifications, that the unit employees’ terms and conditions of employment were not altered, and therefore did not outweigh the County’s interest, the County did not have an obligation to bargain and the charge was dismissed. (ALJ Maier, U-25480, 7/15/05)

WESTCHESTER COUNTY CORRECTION OFFICERS BENEVOLENT ASSOCIATION, INC. AND COUNTY OF WESTCHESTER. Where evidence established that police officers, who are not unit members, were only leading trained search dogs to a site, but otherwise not participating in the search, there was no subcontracting of the work of searching, which is exclusively done by corrections officers. Even if the work of the police officers, however, had been shown to be substantially similar, the qualifications for dog handlers were significantly different from those of officers who performed searches without trained dogs and the interests of the County outweigh those of the unit, which suffered no loss of work as a result of the new search method. (ALJ Cacavas, U-25012, 7/19/05)

MARCELLA BALROOP AND TRANSPORT WORKERS UNION AND NEW YORK CITY TRANSIT AUTHORITY. The Director dismissed the charge as individuals lack standing to allege a violation of §209-a.2(b) of the Act and it identified no act or omission by the TWU within the four-month period of limitations of the Rules. (Director Klein, U-26006, 7/19/05)

DAVID LEE COOK AND SARATOGA COUNTY DEPUTY SHERIFF’S BENEVOLENT ASSOCIATION AND COUNTY OF SARATOGA AND SARATOGA COUNTY SHERIFF. An employee’s claim that his bargaining agent violated its duty of fair representation was dismissed on motions from the bargaining agent and the employer, as the record evidenced that the bargaining agent fully considered the charging party’s request that it represent him at a contractual hearing to appeal his light duty assignment, that it conveyed to the charging party its determination that the employer had complied with the requirements of the collective bargaining agreement, and that the refusal of the bargaining agent’s president to further discuss the matter with the charging party, even if true, amounted to a refusal to engage in repetitive communication. (ALJ Comenzo, U-24798, 7/21/05)

MICHAEL LATTIMORE AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed the charge for failure to arguably establish that the respondent’s actions were arbitrary, discriminatory or in bad faith and because the UFT Welfare Fund owed no duty to represent charging party. (Director Klein, U-26012, 7/22/05)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, NYSUT, AFL-CIO (FOSTER). The ALJ dismissed a charge for failure to prosecute when the charging party failed to appear for a scheduled hearing. The charging party did not seek an adjournment and was not able to be contacted on the scheduled day of hearing. After waiting approximately one hour, the ALJ entertained a motion to dismiss for failure to prosecute, which was granted. (ALJ Maier, U-25022, 7/22/05)

BEULAH P. JOHNSON AND UNITED FEDERATION OF TEACHERS AND THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed a charge as untimely and because the facts did not arguably establish a violation. (Director Klein, U-26023, 7/25/05)

BEDFORD TEACHERS' ASSOCIATION, NYSUT, AFT, AFLCIO AND SOUTH COUNTRY CENTRAL SCHOOL DISTRICT. The ALJ conditionally dismissed a charge, deferring it to the parties’ grievance procedure, which alleged that the District failed to negotiate certain aspects of a teacher mentoring program. The union submitted an offer of proof after the conference in which it alleged that the District had unilaterally changed the terms of an agreement it had entered into with the union concerning the mentoring program. Since the agreement was arguably a source of right to the union, the charge was deferred, subject to a motion to reopen upon the grounds set forth in Herkimer County BOCES, 20 PERB ¶3050(1987). (ALJ Maier, U-25617, 7/26/05)

ST. REGIS FALLS UNITED TEACHERS, AFT, NYSUT, LOCAL 2978 AND ST. REGIS FALLS CENTRAL SCHOOL DISTRICT. The ALJ conditionally dismissed an improper practice charge, deferring the matter to the parties’ contractual grievance procedure for a determination regarding PERB’s jurisdiction over the underlying dispute. (ALJ Quinn, U-25579, 8/10/05)

BUFFALO PROFESSIONAL FIREFIGHTERS ASSOCIATION, IAFF, LOCAL 282 AND CITY OF BUFFALO. The improper practice charge was deferred to the parties’ contractual grievance procedure because the Association has filed grievances on the same facts as pled in the charge. (ALJ Fitzgerald, U-25186, 8/24/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, ERIE COUNTY WHITE COLLAR UNIT AND COUNTY OF ERIE AND ERIE COMMUNITY COLLEGE AND ADMINISTRATORS ASSOCIATION OF ERIE COMMUNITY COLLEGE, LOCAL 3300, UNITED AUTO WORKERS. The County was found to have violated the Act when it transferred purchasing work for Erie Community College (ECC), work found to be exclusive to the buyers in the County Division of Purchase represented by CSEA, to College employees represented by the Administrators Association of Erie Community College (AAECC). The County’s defense that it had gone out of the business of performing purchasing work for the College by virtue of local legislation providing ECC with authority to perform purchasing was rejected due to the County’s role as sponsor of the College and the level of control exercised over the services. (ALJ Fitzgerald, U-24659, 8/24/05)

SARATOGA SPRINGS FIREFIGHTERS UNION, LOCAL 343, I.A.F.F., AFL-CIO, AND CITY OF SARATOGA SPRINGS. The Director conditionally dismissed the charge because a grievance had been filed. (Director Klein, U-25818, 8/31/05)

CITY OF NORWICH FIREFIGHTERS ASSOCIATION, LOCAL 1404, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO, CIC AND CITY OF NORWICH. The ALJ conditionally dismissed an improper practice charge concerning the alleged failure to continue the terms of an expired collective bargaining agreement while a grievance regarding the dispute was being pursued. (ALJ Quinn, U-25843, 9/2/05)

TOWN OF ROSENDALE POLICE BENEVOLENT ASSOCIATION AND TOWN OF ROSENDALE. The ALJ conditionally dismissed an improper practice charge concerning the alleged failure to continue the terms of an expired collective bargaining agreement while a grievance regarding the dispute runs its course. (ALJ Quinn, U-25813, 9/2/05)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND STATE OF NEW YORK (DIVISION OF PAROLE). The ALJ conditionally dismissed an improper practice charge pending a determination as to its jurisdiction, inasmuch as the charging party has filed a grievance regarding the dispute under the parties' current collective bargaining agreement. (ALJ Quinn, U-26037, 9/2/05)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DIVISION OF PAROLE). The ALJ conditionally dismissed an improper practice charge concerning the alleged failure to continue the terms of an expired collective bargaining agreement while a grievance regarding the dispute was being pursued. (ALJ Quinn, U-26066, 9/6/05)

COUNTY OF ULSTER AND ULSTER COUNTY SHERIFF AND ULSTER COUNTY DEPUTY SHERIFF'S POLICE BENEVOLENT ASSOCIATION, INC. The ALJ held that five bargaining proposals submitted to compulsory interest arbitration under §209.4(g) of the Act, which applies to Deputy Sheriffs engaged in law enforcement, are mandatorily negotiable, but that three of them were not arbitrable. Found not to be arbitrable were two demands involving dues deduction and agency fee procedures. Each requested the names and addresses of the employees in the bargaining unit and how much dues or fees had been remitted to date. Each also required the employer to remit the dues or fees at the conclusion of each payroll period, and to deduct and remit unpaid arrearages. Although mandatorily negotiable because they provide a contractual forum for enforcement of statutory rights, the ALJ held that they are not "directly related to compensation." Rather, the ALJ held that the demands were directly related to the PBA's desire to obtain a contractual forum for the enforcement of rights that directly inured to its benefit, and only indirectly to the employee's benefit. The ALJ also held that a provision involving sick leave was not arbitrable. Noting that paid leave is a form of compensation, and therefore mandatorily negotiable, the ALJ observed that the Board had held that sick leave is not arbitrable under substantially similar statutory interest arbitration language covering employees of the Division of State Police. However, the ALJ found that the union's demand for health insurance for employees and their dependents upon retirement was arbitrable, because it is compensation to be paid at a future date. He also held that the union's demand for retirement benefits under Article 14-b, §§552 and 553 of the New York State Retirement and Social Security Law, are both mandatory negotiable and arbitrable inasmuch as they directly relate to compensation. (ALJ Quinn, U-25780, 9/21/05)

VILLAGE OF SAUGERTIES AND VILLAGE OF SAUGERTIES POLICE BENEVOLENT ASSOCIATION. The ALJ held that compensation earned by employees while they are employed, to be paid at some future date, including after the employees leave service, is mandatorily negotiable. Therefore, the ALJ held that premiums to be paid for health insurance for employees and their dependents after the employees retire is mandatorily negotiable. (ALJ Quinn, U-25932, 9/26/05)

COUNTY OF PUTNAM AND PUTNAM COUNTY SHERIFF AND PUTNAM COUNTY SHERIFF'S DEPARTMENT POLICE BENEVOLENT ASSOCIATION, INC., The employer filed a charge alleging that the Association submitted demands to interest arbitration that were not directly related to compensation as required by §209.4(g) of the Act. A proposal providing a method for resolving overtime disputes involved eligibility for overtime and was not, therefore, arbitrable. Similarly, a proposal that retroactive payments to current employees, as well as those who retire subsequent to expiration of the contract, was non-arbitrable as it applied to those not covered by the Act. Also found to be non-arbitrable was a proposal seeking to add the word "defibrillator" and two proposals regarding payment of accumulated sick leave, the latter determined to be contingent only and, therefore, directly related to compensation. (ALJ Doerr, U-25752, 9/26/05).

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF COLUMBIA. A charge that the County increased the workload and then required overtime of certain unit employees to complete it was dismissed, as the record facts did not establish that a significant increase in work, to be performed in the same amount of time, occurred within PERB's four month filing period, and as the parties' collective bargaining agreement granted the employer the right to assign overtime. (ALJ Comenzo, U-24891, 9/30/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. The ALJ dismissed a charge alleging a violation of §§209-a.1(a) and(c) of the Act by denying an employee's leave request because he prevailed in an arbitration proceeding. The ALJ found that the employee engaged in protected activity and that the employer was aware of such activity, but that it had a legitimate reason for denying his request unrelated to the exercise of this activity. Specifically, FLSA concerns had been brought to the County's attention concerning this employee prior to the employee engaging in protected activity, and there were other concerns relating to the employee's hours of work. Accordingly, since the leave request was not denied because of the exercise of protected activity, and the employer had legitimate business reasons for its action, the charge was dismissed. (ALJ Maier, U-25435, 9/29/05)

ROBERT A. STILLWAGON AND UNITED PUBLIC SERVICE EMPLOYEES UNION AND NORTHPORT-EAST NORTHPORT UNION FREE SCHOOL DISTRICT. Stillwagon's charge, alleging that the UPSEU violated §209-a.2(c) of the Act when it failed to file a grievance or respond to his inquiries, was dismissed based upon Stillwagon's failure to appear at the pre-hearing conference and failure to respond to the ALJ's request for an affidavit setting forth good reason for his failure to appear and an offer of proof in support of his charge. (ALJ Blassman, U-25928, 10/3/05)

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC. AND STATE OF NEW YORK (DIVISION OF STATE POLICE). The employer violated §209-a.1(d) of the Act when it unilaterally ceased providing unit employees with advance notice of the anticipated duration of certain of their assignments. (ALJ Comenzo, U-24314, 10/3/05)

RAYMOND REYES AND AMALGAMATED TRANSIT UNION, LOCAL 726 AND NEW YORK CITY TRANSIT AUTHORITY. Actions which occurred more than four months prior to the filing of a charge are barred by PERB's period of limitations. Where a charging party requested a meeting and asked his union for answers regarding his representation, the fact that the union met and said it could do nothing to help relieve it of liability under the Act on a failure to respond allegation. The standard is whether a response, regardless of whether it was favorable to the employee, was made. Also, a statement by a union official implying that the union's actions had harmed the member, without more, does not establish a claim. Absent evidence of arbitrary or discriminatory conduct or deliberate bad faith there is no showing that the duty of fair representation has been breached. (ALJ Cacavas, U-25817, 10/5/05)

SAUQUOIT VALLEY TEACHERS ASSOCIATION/ SAUQUOIT VALLEY NON-TEACHING ASSOCIATION AND SAUQUOIT VALLEY CENTRAL SCHOOL DISTRICT. The charges were deferred to the parties' contractual grievance procedure as the Associations have filed grievances on the same facts as pled in the charges. (ALJ Comenzo, U-26044 & U-26045, 10/11/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF WESTCHESTER. An ALJ dismissed a charge which alleged that the County transferred exclusive bargaining unit work in violation of §209-a.1(d) of the Act. Specifically, the union alleged that the County transferred messenger duties which had been performed exclusively, except for when there was inclement weather and the County vehicles were grounded, all unit members were already engaged in messenger service duties, or the mailroom was short-staffed. The ALJ concluded that given the caveats as to when the work was not performed by non-unit employees, a discernible boundary could not be drawn. Accordingly, since the work was not performed exclusively, the charge was dismissed. (ALJ Maier, U-25755, 10/14/05)

DEPUTIES ASSOCIATION OF THE COUNTY OF STEUBEN AND COUNTY OF STEUBEN AND SHERIFF OF STEUBEN COUNTY An improper practice charge, alleging that the County violated the Act when it filed additional disciplinary charges against a unit member with a proposed penalty of termination, following the Association's refusal to accept amended charges in an arbitration proceeding, was dismissed. While the filing of the proposed amendment as a separate charge was a result of the Association's refusal to accept those charges as amendments to the first disciplinary charges, there was no evidence of improper motivation necessary to establish retaliation. (ALJ Fitzgerald, U-25402, 10/19/05)

SUFFOLK COUNTY POLICE BENEVOLENT ASSOCIATION AND COUNTY OF SUFFOLK AND SUFFOLK COUNTY ASSOCIATION OF MUNICIPAL EMPLOYEES, INC. The ALJ dismissed a charge alleging that the County violated §209-a.1(d) of the Act when it transferred the exclusive unit work of front desk duty to nonunit, civilian personnel. Pursuant to prior civilianization cases, such as Fairview Fire District, the ALJ held that the substitution of a civilian employee for a uniformed officer constituted a change in qualifications and level of services that required the application of the balancing test to determine whether the transfer was mandatorily negotiable. Since the only impact on the PBA was the loss of the transferred work, and no unit employee had been laid off or suffered a loss in benefits, the balancing of parties' interests weighed in the County's favor, requiring a finding that the transfer of work was not mandatorily negotiable and that the County was privileged to effectuate the transfer without bargaining. (ALJ Blassman, U-24426, 10/21/05)

QUESTAR III SPECIAL SUPPORT SERVICES FEDERATION AND QUESTAR III BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF RENSSELAER, COLUMBIA AND GREENE COUNTIES. An improper practice charge was deferred to the parties' contractual grievance procedure because the charging party had filed a grievance concerning the same dispute at issue in the charge. (ALJ Quinn, U-26105, 10/24/05)

BRONXVILLE POLICE TAYLOR ACT COMMITTEE AND VILLAGE OF BRONXVILLE. The charge alleged that the Village violated §209-a.1(d) of the Act by unilaterally imposing a new requirement upon sick leave use. The Village had required a police officer to report to the police surgeon when calling in sick. The ALJ conditionally dismissed the charge subject to a motion to reopen pursuant to Herkimer County BOCES, 20 PERB 3050 (1987). (ALJ Blassman, U-26001, 10/27/05)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES - ELMIRA CORRECTIONAL FACILITY). The State's institution of a procedure which reduced the availability to certain employees of the same days off during their two week assignment periods was a unilateral change in time off, which is a mandatory subject of bargaining. Town of Carmel, 31 PERB 3006 (1998), conf'd sub nom. Town of Carmel PBA v PERB, 267 AD2d 858, 32 PERB 7028 (3d Dep't 1999), relied upon by the employer, was not on point as, here, the number of employees who could be off work at any one time was not reduced and determination by the employer of the number of employees to be on duty at any given time was not involved. (ALJ Comenzo, U-23550, 11/1/05)

OLGA BATYREVA AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed the charge which alleged that the employer violated §§209-a.1(a), (b) and (c) of the Act because the activity which allegedly motivated the employer's actions was not protected by the Act and there were no facts to establish that the employer dominated or interfered with the formation or administration of an employee organization. (Director Klein, U-26197, 11/2/05)

HONEOYE CENTRAL SCHOOL DISTRICT SUPPORT STAFF ASSOCIATION AND HONEOYE CENTRAL SCHOOL DISTRICT. The District was found to have violated the Act by subcontracting exclusive unit work of mowing and grounds maintenance to a private contractor. The District's claim that exclusivity of unit work was breached by the performance of groundskeeper work by the Supervisor of Buildings and Grounds was rejected, as his work was on an incidental, as-needed basis, during periods where extra assistance was required. The defense of waiver based on management rights clause was rejected since the collective bargaining agreement was found not to cover the issue of subcontracting unit work. (ALJ Fitzgerald, U-25420, 11/8/05)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND PUBLIC EMPLOYEES FEDERATION, LOCAL 4053, AFT/ SEIU, AFL-CIO AND STATE OF NEW YORK (OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE). The charges were deferred to the parties' contractual grievance procedure as the Associations have filed grievances on the same facts as pled in the charges. (ALJ Comenzo, U-25940 & U-26117, 11/10/05)

BUFFALO EDUCATIONAL SUPPORT TEAM - NEA/NY AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO. The Director dismissed the charge for failure to plead facts to arguably establish any violations of the Act. (Director Klein, U-26306, 11/14/05)

LINDA HAMPTON AND UNITED FEDERATION OF TEACHERS. The Director dismissed the charge pursuant to initial investigation for several procedural and substantive procedural irregularities. (Director Klein, U-26307, 11/29/05)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND STATE OF NEW YORK (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES). The ALJ conditionally dismissed an improper practice charge pending resolution of a grievance concerning the at-issue conduct under the parties' expired collective bargaining agreement. (ALJ Quinn, U-26098, 12/5/05)

NORTH SALEM TEACHERS' ASSOCIATION, LOCAL 2879, NYSUT AND NORTH SALEM CENTRAL SCHOOL DISTRICT. The Association's charge, alleging that the District violated the Act when it filled the position of Director of Technology with a non-unit employee, was deferred to a pending grievance arbitration. (ALJ Blassman, U-26221, 12/08/05).

COUNTY OF ERIE AND SHERIFF OF ERIE COUNTY AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, ERIE UNIT OF LOCAL 815, AND TEAMSTERS LOCAL 264, INTERNATIONAL BROTHERHOOD OF TEAMSTERS. The County of Erie and Sheriff of Erie County were found to have violated the Act when it unilaterally transferred duties of guarding sentenced prisoners, work exclusive to the CSEA bargaining unit, to nonunit employees and when it unilaterally transferred the duties of guarding unsentenced prisoners, work exclusive to the Teamsters' bargaining unit, to nonunit personnel. The qualifications for the jobs had not substantially changed. Further, there was no objectively demonstrable need for the County to commingle prisoners remanded to the custody of the Sheriff. (ALJ Doerr, U-22665, U-25456, U-23327 and U-25489, 12/13/05)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES NEW YORK COUNCIL 66, and AFSCME LOCAL 1635, AFL-CIO and CITY OF ROCHESTER. The City of Rochester was found to have violated §209-a.1(a) of the Act by interfering in AFSCME's representation of unit employees, specifically by the actions of Thomas Bergin, an Assistant Superintendent in the Water Bureau, interfering with Anthony Giannavola's right to be represented by the AFSCME president in a disciplinary matter, interfering with Giannavola's representation of a unit employee as AFSCME steward, and making direct statements to an AFSCME unit member during a meeting with his steward that he should not involve the steward in his problems and that the union would not be of any assistance to him. The §209-a.1(c) allegations were dismissed, as there was no finding of discrimination for engagement in protected activity. (ALJ Fitzgerald, U-25502, 12/13/05)

COUNTY OF MONROE AND MONROE COUNTY AIRPORT FIREFIGHTERS ASSOCIATION, IAFF, LOCAL 1636. The Director dismissed a charge which alleged a violation of the Act by a party's filing for interest arbitration when that party is not statutorily entitled to it. (Director Klein, U-26390, 12/13/05)

WILLIAM TORRES AND LOCAL 860, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the improper practice charge because it was devoid of factual particulars, appeared untimely, and contained other procedural deficiencies. (Director Klein, U-26403, 12/21/05)

SHERIFF OFFICERS ASSOCIATION, INC. AND COUNTY OF NASSAU AND NASSAU COUNTY SHERIFF AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The ALJ dismissed, on timeliness grounds, the SOA's charge alleging that the County violated §209-a.1(d) of the Act when it repudiated its agreement with SOA not to assign nonunit employees to the position of Medical Training Instructor in the Sheriff's Academy. (ALJ Blassman, U-24725, 12/21/05)

JOHN DONALDSON AND UNITED FEDERATION OF TEACHERS and BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The charge brought by Donaldson against the UFT and the District was dismissed. The record showed that the UFT had not breached its duty of fair representation when it told the District that it could not keep Donaldson out of the classroom more than a certain number of months without initiating disciplinary charges against him. The UFT was simply attempting to get Donaldson reassigned to the classroom, a result he was seeking. As to the allegations against the District, the ALJ held that Donaldson had waived his right to bring a charge against the District as to one of the allegations in the charge when he signed a settlement agreement in a disciplinary matter that contained a waiver clause. Those allegations that were not covered by the agreement's waiver clause were dismissed by the ALJ for failure to prove that the District had acted with union animus. (ALJ Blassman, U-24893, 12/22/05)

TOWN OF ROSENDALE POLICE BENEVOLENT ASSOCIATION AND TOWN OF ROSENDALE. The Director deferred the matter to the parties' grievance procedure. (Director Klein, U-26171, 12/22/05)

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