NYS PERB DECISIONS
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Archived Decision Summaries - January 1, 2010 through December 31, 2010

(Updated June 22, 2011)


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Decision Summaries Of The Board


Board Certifications

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of the Head Bus Driver, Mechanic Foreman, High School Head Custodian, Middle School Head Custodian, Middle School Crew Chief, High School Crew Chiefs, Elementary Head Custodian, Elementary Crew Chiefs, Head Groundskeeper and Head Custodian/Crew Chief in the Mahopac Central School District. All other employees are excluded. (C-5924, 2/8/10)

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 832-S has been certified as the exclusive representative of all Department of Public Works employees in the Town of South Bristol. The Highway Superintendent and clerical staff are excluded. (C-5911, 2/8/10)

NIAGARA FALLS BRIDGE COMMISSION EMPLOYEES UNIT has been certified as the exclusive representative of Toll Collectors, Truck Compound Attendants, Toll Captains, Part-time employees, Maintenance Men, Building Maintenance Foreman and Janitors in the Niagara Falls Bridge Commission. Seasonal temporary employees, Maintenance Foreman and all other employees are excluded. (C-5914, 2/8/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION INC., LOCAL 1000, AFSCME, AFL-CIO has been certified to represent all full-time employees in the Incorporated Village of Rockville Centre in the following titles: Account Clerk, Accounts Investigator, Administrative Assistant, Apprentice Line Maintainer, Assistant Motor Repair Supervisor, Assistant Oiler, Assistant Power Plant Operator, Assistant Sanitation Supervisor, Automotive Mechanic, Building Custodian, Building Inspector, Building Inspector-Trainee, Cable Splicer, Caretaker, Cashier, Cleaner, Clerk, Clerk-Laborer, Designer Drafter, Drafter, Drafting Aider (Utility), Driver Ground Helper (Utility), Electric Meter Repairer, Head Clerk, Highway Supervisor, Housing Assistant, Housing Inspector, Labor Supervisor, Line Maintainer 1/c, Line Maintainer 2/c, Line Supervisor, Maintainer, Maintenance Supervisor, Messenger, Meter Reader (Utility), Meter Tester (Utility), Motor Equipment Operator, M.E.O. Sanitation Worker, Multiple Housing Inspector, Neighborhood Aide, Nursery Manager, Oiler, Park Attendant, Parking Meter Attendant, Parking Meter Servicer, Plumbing Inspector, Police Communications Operator, Power Plant Laborer, Power Plant Mechanic (Diesel), Power Plant Laborer (Electric), Power Plant Servicer, Principal Account Clerk, Principal Account Clerk (Utility), Principal Clerk, Principal Stenographer, Principal Typists-Clerk, Recreation Assistant, Recreation Attendant, Recreation Attendant/Bus Driver, Recreation Leader, Sanitation & Parking Violations Inspector, Sanitation Supervisor, Sanitation Worker, Secretarial Assistant, Security Guard, Senior Account Clerk, Senior Building Inspector, Senior Cashier, Senior Citizens Program Development Aide, Senior Citizen Social Workers, Senior Clerk, Senior Drafter, Senior Law Stenographer, Senior Maintainer, Senior Motor Equipment Operator, Senior Parking Meter Servicer, Senior Power Plant Operator, Senior Stenographer, Senior Stores Clerk, Senior Typist-Clerk, Senior Village Court Clerk, Sewer Servicer, Sewer Servicer Supervisor, Sign Shop Supervisor, Stenographer, Stock Assistant (Utility), Storekeeper (Utility), Stores Clerk (Utility), Typist-Clerk, Underground Cable Supervisor, Village Court Clerk, Water Servicer, Water Servicer Supervisor, Water Servicer Trainee, and Working Line Supervisor. Excluded from the unit are all other employees. (C-5919, 3/17/10)

EAST IRONDEQUOT TRANSPORTATION ASSOCIATION has been certified as the representative of all full-time and regular part-time School Bus Drivers and Bus Monitors. All other titles are excluded. (C-5935,C-5936, 3/17/10)

FILLMORE ADMINISTRATORS ASSOCIATION has been certified as the exclusive representative of employees in the following titles in the Fillmore Central School District: Principal, Curriculum Director and School Guidance. All other employees are excluded. (C-5901, 4/22/10)

TEAMSTERS LOCAL 693 has been certified as the exclusive representative of all regular full-time Police Officers in the Village of Sidney. All part-time Special Police, Dispatchers, Jailer, Dog Control Officer and Department Head and/or Chief of Police and/or Commissioner of Police are excluded. (C-5920, 4/22/10)

TEAMSTERS LOCAL 118 has been certified as the exclusive representative of all full-time and part-time regular Motor Equipment Operators and Deputy Highway Superintendents employed by the Town of Walworth. The Superintendents and seasonal employees are excluded. (C-5796, 6/1/10)

TEAMSTERS LOCAL UNION NO. 693, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA has been certified as the exclusive representative of all employees of the Town Highway Department of the Town of Smyrna. The Superintendent of Highways and all other Town employees are excluded. (C-5949, 6/1/10)

TEAMSTERS LOCAL UNION NO. 693, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA has been certified as the exclusive representative of employees in the following titles employed by the Town of Kirkwood: Motor Equipment Operators - Heavy, Motor Equipment Operators - Light, Laborers assigned to the Public Workers Department. Management, clerical, seasonal and all others employed by the Town of Kirkwood are excluded. (C-5950, 6/1/10)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 832-S has been certified as the exclusive bargaining representative of all full-time and part-time employees in the Parks, Recreation and Building Departments of the Town of Parma. All seasonal employees, the Director of the Recreation Department, and confidential employees are excluded. (C-5951, 6/1/10)

SOUTHAMPTON TOWN SUPERIOR OFFICERS ASSOCIATION, INC has been certified as the exclusive representative of all Sergeants, Detective Sergeants, Lieutenants and Captains of the Town of Southampton Police Department. All other Police Department personnel are excluded. (C-5805, 8/10/10)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all full-time and part-time Bus Drivers assigned to regular routes and employed by the Springs Union Free School District. The Transportation Supervisor, per-diem Bus Drivers and all other employees are excluded. (C-5913, 8/10/10)

TRI-VALLEY ESSENTIAL SUPPORT STAFF ASSOCIATION, NYSUT/AFT/NEA/AFL-CIO has been certified as the exclusive representative of employees in the following titles in the Tri-Valley Central School District: Teacher Aide, Account Clerk, Buildings & Grounds Maintenance, Worker I, Maintenance Helper, Custodian, Cleaner, School Monitor, Driver/Courier, Food Service Helper, Assistant Cook, Cook, Receptionist, Typist, Senior Typist, Bus Driver, LAN Technician and Systems Assistant Technician. Employees in the following titles are excluded: Senior Custodial Worker, Account Clerk (Secretary to Assistant Superintendent for Business), Account Clerk (Accounts Payable), Occupational Therapist, Buildings and Ground Maintenance Worker II, School District Clerk, Secretary to Superintendent, Dental Hygienist, Census Taker, School Bus Dispatcher, Food Service Manager, Payroll Clerk and all "Per Diem" Substitutes. (C-5957, 8/10/10)

TOWN OF CATLIN HIGHWAY ASSOCIATION has been certified as the exclusive representative of Deputy Highway Superintendent and all Highway Workers employed by the Town of Catlin. The Highway Superintendent and seasonal employees are excluded. (C-5962, 8/10/10)

LOCAL 338 RWDSU/UFCW has been certified as the exclusive representative of all full-time and regular part-time school lunchroom monitors employed by the Mount Vernon City School District. All other employees, including professional employees, office clerical employees, guards and supervisors are excluded. (C-5966, 8/10/10)

TEAMSTERS LOCAL 294 has been certified as the exclusive representative of employees in the following titles in the Gloversville-Johnstown Joint Sewer Board: Cleaner, Wastewater Treatment Plant (WTP) Attendant, Motor Equipment Operator, Industrial Waste Monitoring Supervisor, Industrial Waste Monitoring Technician, WTP Laboratory Technician, Industrial Monitoring Mechanic, Motor Equipment Maintenance Mechanic, Senior WTP Maintenance Mechanic, WTP Maintenance Mechanic, Lead WTP Operator, WTP Operator Trainee, WTP Operator and Account Clerk Typist. Employees in the following titles are excluded: WTP Maintenance Supervisor, Fiscal Officer, Senior Plant Operator, Laboratory Director, Industrial Engineer, Plant Superintendent, Administrative Aide, Manager Wastewater Programs and/or Chief Operating Officer. (C-5972, 9/21/10)

NIAGARA COUNTY COMMUNITY COLLEGE ADJUNCTS ASSOCIATION, NYSUT/AFT, AFL-CIO has been certified as the exclusive representative of the following employees of Niagara County Community College: all part-time instructors who teach at least three credit hours. All part-time instructors who exclusively teach in the summer, managerial/confidential employees and all others are excluded. (C-5979, 9/21/10)

UNITED PUBLIC SERVICE EMPLOYEES UNION has been certified as the exclusive representative of all regular full-time and regular part-time EMT and paramedic employees and regular weekly per diem and regular monthly per diem EMT and paramedic employees employed by the Ridge Fire District. All other employees are excluded. (C-5983, 9/21/10)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND THE TOWN OF ISLIP. The Board dismissed the petition of the United Public Service Employees Union (UPSEU) to represent certain employees of the Town of Islip after the results of an election among the employees in the proposed unit indicated that a majority of the eligible employees in the unit did not desire to be represented by UPSEU. (C-5969, 9/21/10)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND TOWN OF ISLIP AND LOCAL 237, INTERNATIONAL BROTHERHOOD OF TEAMSTERS has been certified as the exclusive representative of employees in the following titles in the Town of Islip. (C-5965, 9/21/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, INC., AFSCME, AFL-CIO has been certified as the exclusive representative of all part-time Deputy Sheriffs employed in the Chautauqua County Sheriff's Office. All other employees are excluded. (C-5995, 11/9/10)

CLERICAL & MAINTENANCE UNION OF THE BUFFALO AND ERIE COUNTY PUBLIC LIBRARY - CONTRACTING LIBRARIES, NYSUT/AFT, AFL-CIO has been certified as the exclusive representative of all full-time and regular parttime clerical and maintenance employees employed by Alden (Ewell) Free Library, et al, Contracting Member Libraries, individually, within the Buffalo & Erie County Public Library System. Excluded are managers, including library managers, confidential employees and all other employees. (C-5991, 11/9/10)

LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS. The Board dismissed the petition of Local 456, International Brotherhood of Teamsters (Local 456) to represent certain employees of the Town of Pawling after the results of an election among the employees in the proposed unit indicated that a majority of the eligible employees in the unit did not desire to be represented by Local 456. (C-5864, 11/9/10)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 30 has been certified as the exclusive representative of all full-time employees of the Hudson River Park Trust in the following titles: Chief Facilities Engineer, Assistant Director of Maintenance Operations, Mechanics, Maintenance Technician (Non-Trade), Maintenance Technician (Trade), Maintenance Technician (Horticultural), Motorpool Specialist, Operations Coordinator and Director of Marine Operations. Excluded from the unit are all other employees, including seasonal and part-time employees. (C-5947, 11/9/10)

DUTCHESS COUNTY STAFF ASSOCIATION, NYSUT, AFT, AFL-CIO has been certified as the exclusive representative of all Assistant County Attorney, Senior Assistant County Attorney, Assistant County Attorney - Department of Social Services, Senior Assistant County Attorney - Department of Social Services, Assistant Public Defender and Senior Assistant Public Defender employed by Dutchess County. All other Dutchess County employees, including those individuals holding either the Assistant County Attorney or Senior Assistant County Attorney title who perform grievance and/or personnel work on behalf of the County are excluded. (C-5915, 12/24/10)

TEAMSTERS & CHAUFFEURS UNION LOCAL NO.456 has been certified as the exclusive representative of Office Assistant, Office Assistant (Automated Systems), Receptionist, Typist, Administrative Assistant, Secretary to School Principal in the Greenburgh-Graham Union Free School District. All other titles are excluded. (C-5952, 12/24/10)

TEAMSTERS LOCAL 1149 has been certified as the exclusive representative of all full-time Motor Equipment Operators in the Town of Fleming. All other employees are excluded. (C-6001, 12/24/10)

DIOCESAN ELEMENTARY TEACHERS ASSOCIATION has been certified as the exclusive representative of all full-time and part-time lay teachers employed by Saint Francis of Assisi School. Teacher aides and all other employees are excluded. (CE-6003, 12/24/10)

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Representation

TOWN OF ISLIP. The Board affirmed a decision of an ALJ dismissing two representation petitions seeking to fragment employees with peace officer status and responsibilities from a long-standing blue collar unit. The Board concluded that fragmentation was inappropriate because the at-issue employees do not hold a title that has been granted police officer status by the Legislature and do not exclusively or predominantly enforce the State’s general criminal laws. (C-5723, C-5724, 2/8/10)

BROOKLYN EXCELSIOR CHARTER SCHOOL. The Board granted a joint motion by the New York State United Teachers and the United Federation of Teachers, Local 2, AFT, AFL-CIO for leave to file an amicus curiae brief. In can enhance the Board’s deliberations with respect to issues of state-wide importance. (C-5672, E-2429, 2/8/10)

TOWN OF WALWORTH. The Board denied exceptions challenging a decision of an ALJ to include the position of Deputy Highway Superintendent in a unit of all Town fulltime and part-time Motor Equipment Operator (MEO) employees. In denying the exceptions, the Board concluded that the statutory duties of a Deputy Highway Superintendent in the absence of the Superintendent of Highways are not outcome determinative in resolving the uniting question. In addition, the Board found that the evidence in the record did not demonstrate that the incumbent in the Deputy Highway Superintendent position is a managerial or confidential employee under the Act or that an actual or potential supervisory conflict of interests would result from his inclusion in the unit. (C-5796, 3/17/10)

TOWN OF MENDON. Following the results of an election, in which a majority of eligible voters cast ballots against representation by an employee organization, the Board dismissed the petition seeking certification of that employee organization. (C-5927, 3/17/10)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND BERLIN CENTRAL SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Board dismissed the petition of UPSEU to represent certain employees of the Berlin Central School District following the results of an election among the employees in the unit indicated that a majority of the eligible employees in the unit did not desire to be represented by UPSEU. (C-5929, 4/22/10)

LOCAL 175, UNITED PLANT AND PRODUCTION WORKERS, IUJAT AND WATER AUTHORITY OF WESTERN NASSAU COUNTY. The Board dismissed the petition of Local 175, United Plant and Production Workers, IUJAT (Local 175) to represent certain employees of the Water Authority of Western Nassau County after the results of an election among the employees in the proposed unit indicated that a majority of the eligible employees in the unit did not desire to be represented by Local 175. (C-5926, 6/1/10)

HUDSON RIVER PARK TRUST. The Board denied exceptions by the Hudson River Park Trust (Trust) to a decision by the Director of Public Employment Practices and Representation (Director) denying its election objections, filed pursuant to §201.9(h)(2) of the Rules of Procedure (Rules), to a secret mail-ballot election. In its exceptions, Trust contended that the results of the election should be set aside because the ballots of three eligible voters were not counted despite the claim that the ballots were mailed between five and seven days prior to the stipulated date and time for receipt of the mail ballots at PERB’s post office box. Two of the ballots were received at the post office box after the expiration of the deadline, and one was never received. In affirming the Director’s decision, the Board rejected Trust’s claim that a postal error or malfunction warranted the relief sought noting that the agency received mail ballots from over 80% of the eligible voters prior to the stipulated deadline. (C-5947, 11/9/10)

FRANKLIN SQUARE WATER DISTRICT. Following the results of a secret ballot election, the Board concluded that a majority of eligible employees in the unit who cast valid ballots no longer desire to be represented by the incumbent employee organization for purposes of collective negotiations, and the Board issued an order decertifying the incumbent employee organization. (C-5994, 12/24/10)

KIPP AMP ACADEMY CHARTER SCHOOL. Following the results of a secret ballot election, the Board concluded that a majority of eligible employees in the unit who cast valid ballots no longer desired to be represented by the incumbent employee organization for purposes of collective negotiations, and the Board issued an order decertifying the incumbent employee organization. (C-5975, 12/24/10)

TOWN OF GREENPORT. Following the results of a secret ballot election, the Board dismissed a petition filed United Public Service Employees Union seeking to represent all maintenance employees in the Highway and Water/Wastewater Departments of the Town of Greenport. (C-5982, 12/24/10)

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Management / Confidential

NO ARCHIVED MANAGEMENT / CONFIDENTIAL BOARD Decision Summaries FOR 2009.

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Improper Practices

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO (ABRAHAMS). The Board granted a motion by a pro se charging party seeking leave to file late exceptions pursuant to §213.4 of PERB’s Rules of Procedure (Rules). Under the unique facts and circumstances set forth in his motion, the Board concluded that the charging party demonstrated extraordinary circumstances warranting the grant of additional time to file exceptions pursuant to §213.4 of the Rules. The motion established that the charging party did not receive a copy of the ALJ’s decision from his former attorney, who has been suspended from practicing law, or from PERB, prior to the expiration of the time to file exceptions or to request an extension of time under the §213.4 of the Rules. (U-28292, 2/8/10)

COUNTY OF ERIE AND ERIE COUNTY MEDICAL CENTER CORPORATION. The Board ruled that the County of Erie and the Erie County Medical Center Corporation violated §209-a.1(e)of the Act when they unilaterally increased the negotiated hourly rate for per diem registered nurses after the expiration of the parties’ agreement and before a new agreement had been successfully negotiated. In reaching its decision, the Board concluded that a compelling need defense is inapplicable to an improper practice charge alleging that an employer violated §209-a.1(e) of the Act because that provision of the Act is an affirmative grant of jurisdiction to PERB to remedy an employer’s breach of a term of an expired collectively negotiated agreement. (U-27819, 2/8/10)

VILLAGE OF CATSKILL. The Board affirmed a decision of an ALJ concluding that the employer violated §209-a.1(d) of the Act when it unilaterally imposed a policy restricting dual employment by police officers. The Board found that the charging party had demonstrated an unequivocal and continuous past practice known to the employer of unit members holding dual employment with other law enforcement agencies. In reaching its decision, the Board rejected the employer’s argument that the subject matter of dual employment is nonmandatory based upon its concerns over potential future liability resulting from off-duty employee conduct while performing secondary law enforcement duties. (U-27414, 2/8/10)

CITY OF ONEONTA. The Board reversed a decision of an ALJ and concluded that the employer violated §§209-a.1(a) and (c) of the Act when it suspended further consideration of the proposed promotion of the employee organization’s unit president based upon his refusal to reopen the parties’ collectively negotiated agreement for the purpose of modifying the salary grade schedule. The Board held that the employer failed to satisfy its burden of persuasion of demonstrating a nondiscriminatory reason for its action. The evidence in the record contradicted the employer’s contention that its insistence on reopening the agreement was due to a good faith but erroneous belief that changes to the salary grade schedule were necessary to create the new promotional position. As a remedy, the Board ordered the employer to return the unit president to the status quo ante, by taking all necessary actions to render a final determination on the recommended promotion without regard to his union activities and his refusal to reopen the agreement. (U-27189, 2/8/10)

CITY OF NIAGARA FALLS. The Board affirmed a decision of ALJ concluding that a review procedure from an initial employer determination that an employee is not in compliance with a residency requirement is a mandatory subject of negotiations and that the employer violated §209-a.1(d) of the Act when it refused a request to negotiate such a procedure. (U-27834, 2/8/10)

VILLAGE OF GARDEN CITY. The Board affirmed a recommended declaratory ruling and decision of an ALJ dismissing a petition for a declaratory ruling. The Board held that the ALJ correctly found that the petition did not seek a declaratory ruling with respect to the applicability of the Act or with respect to the negotiability of a specific proposal. Instead, the primary purpose of the petition was to obtain an administrative legal determination as to the legality of a long-standing provision of the parties’ collectively negotiated agreement. (DR-125, 2/8/10)

UNITED STEELWORKERS, LOCAL 9434-00. The Board affirmed a decision of an ALJ dismissing a charge alleging that an employee organization violated §209-a.2(c) of the Act when it failed to take action to challenge the termination of the charging party’s contractual health insurance benefits following his successful application for disability retirement with the New York State and Local Retirement System. The Board held that the charge was untimely because the charging party had actual knowledge of the employee organization’s decision not to take action more than four months before the charge was filed. In reaching its decision, the Board rejected the charging party’s argument that his letters to the employee organization requesting reconsideration of its decision tolled the four month timeframe for filing a charge set forth in §204.1(a)(1) of PERB’s Rules. Finally, the Board concluded that even if the charge were timely, it would have been dismissed on the merits noting that, in general, the duty of fair representation does not include an obligation by an employee organization to pursue litigation on behalf of a unit member. In order to prove a breach of the duty of fair representation based upon the failure of an employee organization to commence litigation, a charging party must demonstrate that the employee organization has represented other unit members in similar litigation that was successful, and that the denial of representation to the charging party was arbitrary, discriminatory or in bad faith. (U-28360, 2/8/10)

ELWOOD UNION FREE SCHOOL DISTRICT. The Board affirmed, as modified, the decision of an Administrative Law Judge (ALJ) concluding that the employer violated §§209-a.1 (a) and (c) of the Public Employees’ Fair Employment Act (Act) when it eliminated a position held by a UPSEU shop steward and activist and terminated him, in retaliation for his protected activities. The Board rejected the school district’s argument that various statements of union animus made by one of its administrators constituted stray remarks. However, the Board reversed the ALJ’s conclusion that those remarks constituted direct evidence, rather than circumstantial evidence, of improper motivation because the statements were not sufficiently proximate to the lay-off decision. The Board also held that the reporting of the anti-union statements to the Assistant Superintendent constituted protected activity under the Act because such reporting serves to effectuate the rights guaranteed under the Act by providing an employer with an opportunity to investigate and take appropriate remedial action to ensure that it is in compliance with its statutory obligations. Finally, the Board affirmed the ALJ’s conclusion that the employer’s proffered reason for abolishing the position was pretextual noting that the employer failed to present any explanation for abolishing the position while continuing to employ a non-bargaining unit employee on a regular basis performing the same work duties as the terminated employee. (U-27724, 3/17/10)

STATE OF NEW YORK-UNIFIED COURT SYSTEM. The Board affirmed a decision of an Administrative Law Judge (ALJ) concluding that the employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it unilaterally implemented a new policy restricting off-duty employment for court officers. The Board found that the new off-duty policy constituted a material change from the prior policy because the new policy contains a blanket prohibition on outside employment in locations where the primary business activity is the selling of alcohol for consumption on the premises. In addition, the new policy requires prior employer approval before engaging in outside employment of any kind in privately operated establishments, and the new policy mandates disciplinary action for non-compliance with the policy. Finally, the Board concluded that the record established that the unit employees’ interest in earning extra income from off-duty employment outweighed the extent to which the new policy advanced the employer’s mission. (U-25956, 3/17/10)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK (GRASSEL). The Board reversed in part, but affirmed the decision of an Administrative Law Judge (ALJ) to dismiss an amended charge alleging that the employer violated §§209-a.1(a) and (c) of the Public Employees’ Fair Employment Act (Act) when it issued disciplinary charges and suspended the charging party in December 2007. The Board denied the charging party’s exceptions seeking to disqualify the ALJ concluding that the record did not demonstrate personal bias by the ALJ or an inability by him to render an impartial determination. The Board also rejected the exceptions challenging the ALJ’s efforts to have the charging party clarify the nature of his allegations. With respect to the merits, after accepting the truth of the allegations of the amended charge, as clarified by the charging party, and after granting all reasonable inferences to the charging party the Board reversed the ALJ’s conclusion that the amended charge was limited to alleging improper motivation by the employer based solely upon the charging party’s1997 grievance. The Board concluded that the charging party also alleged that the December 2007 disciplinary charges were improperly motivated by his 1991 grievances and his contesting of prior disciplinary charges. However, the Board affirmed the ALJ’s dismissal of the amended charge concluding that the charging party failed to allege sufficient facts that, if proven, would create an inference that the December 2007 charges were causally related to his decades-old protected activity or his contesting of the earlier charges that were withdrawn. (U-28124, 3/17/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF ROCKLAND (DAVITT). The Board denied a charging party’s motion for leave to file exceptions to an ALJ’s denials of applications for the issuance of agency subpoenas pursuant to §211 of the Rules of Procedure (Rules), and from the denial of the charging party’s motion to disqualify the ALJ. The Board concluded that an ALJ has the discretion to grant or deny a request for the issuance of subpoenas, and the mere denial of such a request, without additional relevant allegations, does not constitute extraordinary circumstances warranting the grant of leave to file exceptions. In addition, the Board determined that there was no evidence in the record to demonstrate bias by the ALJ, or any other facts and circumstances to establish extraordinary circumstances, warranting the grant of the charging party’s motion for leave to file exceptions to review the issue of disqualification.

Finally, the Board affirmed the decision by the Director of Public Employment Practices and Representation (Director) dismissing a second charge filed by the charging party. After granting all reasonable inferences to the facts discerned from the charging party’s handwritten details of charge, the Board affirmed the Director’s conclusion that the charging party failed to allege sufficient material facts to support a claim that the County and/or CSEA violated the Act. In reaching its decision, the Board noted that while the probable cause finding issued by the New York State Division of Human Rights may have clear relevance to his employment discrimination claim pending at that agency, the probable cause finding was insufficient to support his separate and distinct claims under the Act. (U-28642 & U-29420, 4/22/10)

COUNTY OF ERIE. The Board affirmed, as modified, a decision of an Administrative Law Judge (ALJ) concluding that the County of Erie (County) violated §209-a.1(d) of the Act when it unilaterally implemented a policy of hiring employees to fill 39-hour regular part-time (RPT) positions to replace employees who vacate full-time positions in the same title, without any change in the nature and level of services provided by the County. While it may be a managerial prerogative for an employer to reduce the hours of a position, an employer must present evidence demonstrating either that it determined that the same level of services can be completed in fewer hours or that it decided to curtail the level of services it provides. In the present case, the Board concluded that the County had failed to meet its evidentiary burden of demonstrating that the reduction in the number of hours and benefits of unit employees, through the conversion of full-time positions to 39-hour RPT positions, was based upon a specific County determination that the same level of services can be completed in fewer hours or a County decision to make a good faith reduction in the services provided. (U-28198, 4/22/10)

CHENANGO FORKS CENTRAL SCHOOL DISTRICT. The Board affirmed the decision by the Assistant Director of PublicEmployment Practices and Representation (Assistant Director) concluding that the District violated §209-a.1(d) of the Act when it unilaterally announced to current unit employees that it was discontinuing the past practice of reimbursing the cost of Medicare Part B health insurance premiums (premiums) for current and retired employees age 65 or older. The Assistant Director’s decision stemmed from an earlier Board decision remanding the case for the limited purpose of supplementing the evidentiary record with respect to the issue of whether the employee organization and/or current employees had actual or constructive knowledge of the District's practice of reimbursing the cost of the premiums. See, Chenango Forks Central School District, 40 PERB ¶3012 (2007). The remand was necessary in this case because of an ambiguity in the stipulated record as it related to the unique nature of the alleged past practice. Upon remand, the Assistant Director held a hearing and, thereafter, issued a decision concluding that the employee organization and unit employees had actual knowledge of the District’s practice at the time of the District’s announcement. (U-24520, 4/22/10)

COUNTY OF LIVINGSTON. The Board affirmed, in part, and reversed, in part an ALJ’s decision dismissing an improper practice charge alleging that the County violated §209-a.1(d) of the Act when it unilaterally changed a past practice by requiring unit employees in the title of Social Work Assistant to work on certain holidays and when it failed to negotiate the impact of the change. The Board affirmed the ALJ’s conclusion that the unilateral change aspect of the charge was untimely because the County announced and implemented the change more than four months before the charge was filed. However, it reversed the ALJ’s dismissal of the impact negotiations allegation concluding that that aspect of the charge required further processing. (U-28627, 4/22/10)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 650, AFL-CIO (SERAFIN). The Board reversed an ALJ’s decision dismissing a charge alleging that an employee organization violated §209-a.2(c) of the Public Employees’ Fair Employment Act (Act) when it did not process an overtime grievance on behalf of the charging party. Despite the ALJ’s best efforts at developing a stipulation of facts, the Board concluded that the record did not demonstrate that the parties had reached a meeting of the minds with respect to the content of that stipulation. Granting all reasonable inferences to the allegations of the charge, as clarified by the charging party’s offer of proof, the Board concluded that the charging party had alleged sufficient disputed facts to create an inference that the employee organization had engaged in arbitrary, discriminatory, or bad faith conduct in its treatment of charging party’s grievance. (U-28229, 4/22/10)

EDWARD ARREDONDO AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, NASSAU LOCAL 830 AND COUNTY OF NASSAU. The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) denying Edward Arredondo’s request for leave to file exceptions to a deficiency ruling based on the Director’s preliminary review of the improper practice charge. In response to the deficiency notice sent to Arredondo by the Director, Arredondo filed an “Exception to [a] Deficiency Notice,” which the Board treated as a motion for leave to file interlocutory exceptions. The Board determined that the issues raised in Arredondo’s motion did not present extraordinary circumstances warranting review by the Board pursuant to §212.4(h) of PERB’s Rules of Procedure. (U-29830, 6/1/10)

CAROL RUIZ AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board affirmed the decision of an Administrative Law Judge (ALJ) dismissing, at the close of Ruiz’s case, her improper practice charge alleging that the Board of Education of the City School District of the City of New York (District) violated §§209-a.1(a) and (c) of the Public Employees’ Fair Employment Act (Act) by placing her on an ineligibility list for substitute teachers, by making an intimidating and threatening telephone call to her, and by deactivating her from the District’s automated system for substitute teachers, in retaliation for her engaging in protected activity under the Act. After granting all reasonable inferences to the evidence presented by Ruiz, the Board affirmed the ALJ’s conclusion that Ruiz failed to present sufficient evidence to demonstrate a prima facie case of improper motivation by the District in violation of §§209-a.1(a) and (c) of the Act. Although Ruiz established that she had engaged in protected activity known to the District, the Board concluded that the evidence was insufficient to establish an inference that Ruiz’s protected activity was the motivating factor behind the District’s actions.

Practice Tip:

Notably, Ruiz called as her own witness the District employee who made the decision on behalf of the District. Ruiz’s tactical decision resulted in the elicitation of evidence that disproved her claim that the District was improperly motivated. The Board granted Ruiz’s exception challenging the ALJ’s denial of her request that this witness be deemed a hostile witness. The Board determined that the witness’s central role and responsibilities on behalf of the District made her a hostile witness thereby permitting Ruiz to utilize leading questions and prior inconsistent statements for impeachment purposes. However, the Board concluded that the ALJ’s ruling constituted harmless error because Ruiz was granted wide latitude in questioning the witness including utilizing leading questions and alleged prior inconsistent statements. (U-28200, 6/1/10)

ANGELA FAIL-MAYNARD AND LONG BEACH CITY SCHOOL DISTRICT AND LONG BEACH ADMINISTRATORS’ UNION. The Board affirmed the decision of the Director of Public Employment Practices and Representation (Director) dismissing an improper practice charge, filed by Angela Fail-Maynard (Fail-Maynard), alleging that the Long Beach City School District (District) and the Long Beach Administrators’ Union (Union) violated §209-a.2(a) of the Public Employees’ Fair Employment Act (Act) by discriminating against her based upon race and gender with respect to obtaining tenure. Granting all reasonable inferences to Fail-Maynard’s allegation that the Union violated the Act when the Union President advised her to resign in the face of the District’s plan to terminate her, the Board determined that Fail-Maynard failed to allege sufficient facts to state a claim that such advice was in bad faith and/or discriminatory. With regard to Fail-Maynard’s allegation that the Union violated the Act when it failed to successfully persuade the District to grant tenure to her upon her resignation, as the District had previously done for a white female Assistant Principal, the Board determined that the Union’s lack of success in negotiating with the District to obtain the same severance terms for Fail-Maynard did not constitute a violation of Act. (U-29565, 6/1/10)

COUNTY OF MONROE AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Board denied a motion filed by the County of Monroe (County) seeking leave to file exceptions to a finding by the Director of Public Employment Practices and Representation (Director) that the County’s improper practice charge was partially deficient to the extent that it alleged that the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA) engaged in individual violations of §§209-a.2(a) and (b) of the Public Employees’ Fair Employment Act (Act) when it, inter alia, sent letters seeking the removal of the County’s chief negotiator and requesting a meeting with the County Executive, and when it stated on CSEA’s website that it “puts County Executives in office and can take them out of office.” The Board denied the motion for leave to file exceptions on the grounds that the Director did not dismiss the County’s amended charge nor did he preclude the County from presenting evidence about CSEA’s alleged efforts to seek removal of the County’s chief negotiator, to request to meet with the County Executive, to make webbased assertions of political prowess or to prematurely file for impasse. The Board determined that the Director’s deficiency ruling would not evade Board review if the County filed exceptions or cross-exceptions to challenge the ruling, following a merits decision on the County’s amended charge. (U-29666, 6/1/10)

TOWN OF WALLKILL AND TOWN OF WALLKILL POLICE BENEVOLENT ASSOCIATION, INC. The Board affirmed the decision of an Administrative Law Judge (ALJ) dismissing the improper practice charge filed by the Town of Wallkill (Town) alleging that the Town of Wallkill Police Benevolent Association, Inc. (PBA) violated §209-a.2(b) of the Public Employees’ Fair Employment Act (Act) by seeking to negotiate a proposal for the continuation of the disciplinary procedure in an expired collectively negotiated agreement. The Board also affirmed the ALJ’s decision upholding the improper practice charge filed by PBA alleging that the Town violated §209-a.1(d) of the Act by refusing to continue to negotiate for a successor agreement until PBA formally withdrew its disciplinary proposal. The Board affirmed the ALJ’s finding of a §209-a.1(d) violation, and reiterated that under the Act a party may not condition continued negotiations on the other party capitulating to a legal argument, agreeing to a proposal or withdrawing a proposal. Additionally, the Board held that PBA did not violate §209-a.2(b) of the Act by insisting on negotiating its proposal because the subject of police disciplinary procedures is not prohibited. (U-28331 & U-28379, 8/10/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, MONROE COUNTY LOCAL 828, MONROE COUNTY PART-TIME EMPLOYEES UNIT 7401, AND COUNTY OF MONROE. The Board affirmed the decision of an Administrative Law Judge finding that the County of Monroe (County) violated §209-a.1(a) of the Public Employees’ Fair Employment Act (Act) when it conducted a mail-ballot poll of County part-time unit employees with respect to their interest in continuing to be represented by the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA). In its exceptions and at oral argument, the County argued three points: the polling of the part-time employees was authorized by the parties’ collectively negotiated agreement, the County had a good faith rationale for conducting the poll to determine whether a secret-ballot election was appropriate under the agreement, and the poll was conducted in a manner consistent with the Act.

The Board determined that the County’s actions in conducting the poll interfered with, restrained and coerced part-time unit employees in the exercise of their protected rights in violation of §209-a.1(a) of the Act. The Board concluded that the agreement did not contain clear, unmistakable and unambiguous language demonstrating an intention by the parties to waive, replace or supplement the decertification procedures under §201.3 of PERB’s Rules of Procedure (Rules). The Board cited its determination in County of Orange and Sheriff of Orange County, 25 PERB ¶3004 (1992), that “the policies of the Act are best served by requiring that representation disputes be channeled through the procedures available under our Rules rather than left to an employer’s unilateral action.” In addition, the Board rejected the County’s argument that the agreement was a colorable source of right for conducting the poll because the provision was silent with respect to the polling of unit members, and it did not contain language that could be reasonably construed to permit the County to affirmatively solicit or survey the unit for information regarding the status of CSEA as the incumbent employee organization. Because the Board determined that the agreement did not constitute a clear and unambiguous waiver of the Rules, or a colorable source of right for conducting the poll, the Board did not reach the issue of whether an agreement containing an explicit waiver or grant of a right to poll the unit on the question of continued employee support for an incumbent employee organization violated the Act. However, the Board noted that even if it had found the County’s reliance on the agreement to be credible, the record did not support the County’s assertions that it had a good faith and reasonable basis for conducting the poll. (U-29194, 8/10/10)

AHMED MUSTAFA ELGALAD AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Board denied the request filed by Ahmed Mustafa Elgalad (Elgalad) seeking an extension of time to file exceptions to a decision by an Administrative Law Judge dismissing his improper practice charge alleging that the United Federation of Teachers, Local 2, AFT, AFL-CIO (UFT) violated §209-a.2(c) of the Public Employees’ Fair Employment Act (Act) when it refused to process his grievance to step three of the contractual grievance procedure and when it failed to respond to his letters regarding the same matter. After Elgalad failed to submit proof of service upon UFT and the District, as required by §213.2(a) of PERB’s Rules of Procedure, the Board requested him to submit such proof. Elgalad responded with a request for an extension of time to serve the other parties with the exceptions. The Board denied Elgalad’s request because he had failed to demonstrate extraordinary circumstances warranting an extension of time. In its decision dismissing the exceptions, the Board declined to follow County of Clinton, 13 PERB ¶3021 (1980), where exceptions were entertained despite a party’s failure to serve copies on the other parties. The Board concluded that County of Clinton is an anomalous decision that was overruled by subsequent decisions. (U-28671, 8/10/10)

RONALD LEFEVRE AND AMALGAMATED TRANSIT UNION, LOCAL 1056 AND NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision of the Director of Public Employment Practices and Representation dismissing an amended improper practice charge, filed by Ronald Lefevre (Lefevre), alleging that Amalgamated Transit Union, Local 1056 (ATU) violated §209-a.2(c) of the Public Employees’ Fair Employment Act (Act) based upon alleged deficiencies in the post-hearing brief submitted by ATU on behalf of Lefevre at the conclusion of a disciplinary arbitration between New York City Transit Authority and ATU. The Board determined that Lefevre’s apparent dissatisfaction with tactical decisions made by ATU’s attorney in preparing the brief did not state a claim for a breach of the duty of fair representation. Additionally, Lefevre failed to specifically articulate what made the posthearing brief inadequate. The Board reviewed the posthearing brief and determined that it more than satisfied the applicable standards of fair representation by an employee organization under the Act. (U-29858, 8/10/10)

ROCKVILLE CENTER VILLAGE EMPLOYEES CIVIL SERVICE ASSOCIATION, INC. AND INCORPORATED VILLAGE OF ROCKVILLE CENTER. The Board affirmed the decision of an Administrative Law Judge finding a violation of §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when the Incorporated Village of Rockville Center (Village) unilaterally transferred the duties of parking meter coin collection to a nonunit employee. The Board determined that the Village unilaterally transferred the unit work without a related curtailment in the level of services. The Board also found no evidence to support the Village’s argument that the reassigned work was not substantially similar to the work exclusively performed by unit employees. (U-28846, 9/21/10)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The Board issued its first substantive decision interpreting §209-a.1(g) of the Act with respect to the denial of employee organization representation during employer questioning. The New York State Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA) filed a charge alleging that the State of New York (Department of Correctional Services) (State) violated §§209-a.1(a) and (g) of the Act when it denied NYSCOPBA representation of a probationary correction officer during questioning by an investigator from the Department of Correctional Services Office of Inspector General (DOCS OIG) about an attempted suicide of an inmate under the correction officer’s immediate supervision at a correctional facility. The Board affirmed the decision and order by the Assistant Director of Employment Practices and Representation, finding that the State violated §209-a.1(g) of the Act, but reversed her finding that the State violated §209-a.1(a) of the Act, and modified the proposed remedial order.

The Board concluded that §209-a.1(g) of the Act was intended to grant representational rights to all public employees covered under the Act including those holding probationary, provisional and temporary appointments under the Civil Service Law, subject to the affirmative defense that the employee has equivalent protections from a legal source external to the Act. The Board cited the language of §209-a.1(g) and Civil Service Law §75.2 to support its conclusion that the New York State Legislature intended the scope of the right to representation to be broader under the Act.

In addition, the Board determined that the facts in the record indicated that at the time that the correction officer was questioned, it reasonably appeared that he was a potential subject or target of discipline. In determining this issue, the Board stated that it will consider the totality of the circumstances including the reasonableness of the employee’s subjective perception, which may have precipitated the request for representation. Although employee perceptions are relevant, the Board emphasized that its primary focus is on objective facts in the record including: the subject matter and context of the questioning, the verbal and written statements by the employer prior to the questioning, the verbal exchange between the employer representative and the employee, the timing and venue of the questioning, and the treatment of other employees similarly situated.

However, based upon the New York Court of Appeal’s finding in New York City Transit Authority v New York State Public Employment Relations Board (8 NY3d 226, 40 PERB ¶7001 (2007), and the Legislature’s failure to amend §202 of the Act, the Board found that the denial of employee organizational representation during questioning did not constitute a violation of §209-a.1(a). (U-28160, 9/21/10)

POLICE BENEVOLENT ASSOCIATION OF MOUNT KISCO, NEW YORK, INC. AND VILLAGE OF MOUNT KISCO. The Board affirmed the decision of an Administrative Law Judge (ALJ) dismissing an improper practice charge filed by the Police Benevolent Association of Mount Kisco, New York, Inc., (PBA) alleging that the Village of Mount Kisco (Village) violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it unilaterally terminated a practice of paying PBA unit members their full salaries, without charging their leave accruals, when they were absent from work due to work-related injuries and were awaiting determinations on pending applications for benefits under General Municipal Law (GML) §207-c. The Board affirmed the ALJ’s determination that although a past practice existed whereby employees were paid without charge to accruals until the Village made initial determinations on their GML §207-c applications, the Village’s termination of the practice did not violate the Act because the Village had a right to revert to Article XXIV, §2(b)(4) of the parties’ collectively negotiated agreement. In response to PBA’s assertion that evidence of a single employee receiving payment without charge to accruals after the denial of his application expanded the perimeter of the past practice, the Board reiterated the standard for an enforceable past practice under the Act, and determined that the single situation cited by PBA was insufficient to enlarge the scope of the enforceable past practice. In addition, the Board found that the plain language of the agreement did not support PBA’s argument that the Village’s contract reversion defense applied only to the thirty-day time period during which the Village was contractually obligated to make its initial determination on the GML §207-c applications. (U-27706, 9/21/10)

STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The Board affirmed, in part, and reversed, in part, a decision by the Assistant Director of Public Employment Practices and Representation (Assistant Director), on an improper practice charge filed by the New York State Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA) alleging that the State of New York (State) violated §§209-a.1(a) and (g) of the Public Employees' Fair Employment Act (Act) when it denied a request by a NYSCOPBA unit probationary correction officer for representation during questioning by a Department of Correctional Services (DOCS) Office of Inspector General (OIG) investigator and subsequently terminated the probationary correction officer.

Violation of §209-a.1(g) of the Act Affirmed

In its decision, the Board held that the State violated §209-a.1 (g) of the Act when it denied NYSCOPBA representation to the probationary employee during the questioning by the DOCS OIG investigator. In reaching its conclusion, the Board applied the standards articulated in State of New York (Department of Correctional Services) 43 PERB ¶3031 (2010) for determining whether it reasonably appeared that the probationary employee was the potential subject or target of disciplinary action at the time of questioning. The Board held that it reasonably appeared that the employee was a potential subject or target of discipline because at the time of questioning he was under official investigation over a major incident involving the use of force by correction officers, which DOCS believed resulted in substantial injuries to an inmate. The at-issue employee had used force during the incident, and had filed a report that did not mention the use of force by other correction officers or the inmate’s injuries. The Board also considered the context and manner of the questioning in reaching its determination: the employee was questioned under oath, before a stenographer, and at DOCS OIG’s offices on the State Office Campus where interrogations are generally conducted.

Violation of §209-a.1(a) of the Act Reversed

Consistent with the Board’s decision in State of New York (Department of Correctional Services), supra, the Board reversed the Assistant Director’s finding that a denial of representation during investigatory questioning by the State constitutes a violation of §209-a.1(a) of the Act.

Proposed Remedy Affirmed

Finally, the Board denied the State’s exception challenging the Assistant Director’s proposed remedial order directing the reinstatement of the employee with back wages and benefits. The Board noted that when the Legislature enacted §209-a.1 (g) of the Act, it did not modify PERB’s authority, pursuant to §205.5(d) of the Act, to order “an offending party to cease and desist from any improper practice, and to take such affirmative action as will effectuate the policies of this article (but not to assess exemplary damages), including but not limited to the reinstatement of employees with or without back pay.” The legislative decision to grant PERB the authority to apply its full improper practice remedial powers to violations of §209-a.1(g) of the Act was a public policy determination for PERB to have greater powers to remedy the denial of representation during employer questioning than that granted to the National Labor Relations Board (NLRB) under the National Labor Relations Act (NLRA). In contrast to the remedial powers under §205.5(d) of the Act, the powers of the NLRB are expressly restrained in cases when an employee was terminated for cause pursuant to §10(c) of the NLRA. (U-28910, 11/9/10)

STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). In response to a motion by the State of New York (Department of Correctional Services) (State) seeking an order reconsidering and annulling a portion of a Board remedial order regarding the State’s violation of §209-a.1(g) of the Public Employees’ Fair Employment Act (Act), the Board clarified its prior order by directing the State to modify its across-the-board policy of not permitting employee organization representation during questioning of DOCS probationary employees consistent with the provisions of §209-a.1(g) of the Act. (U-28160, 11/9/10)

NEW YORK CITY TRANSIT AUTHORITY. The Board affirmed the decision by an Administrative Law Judge (ALJ) dismissing a portion of a charge filed by the Transport Workers Union, Local 106, Transit Supervisors Organization (TSO) alleging that the New York City Transit Authority (NYCTA) violated §§209-a.1 (a) and (c) of the Act by engaging in a pattern and practice of reducing the number of Subway Supervisor Level II (SSII) positions in the TSO unit through attrition, and by imposing disproportionate discipline. The Board also affirmed the ALJ’s conclusion that NYCTA violated §209-a.1(d) of the Act by failing to negotiate the impact of the reduction in the size of TSO’s unit following a request from TSO. In rejecting TSO’s pattern and practice claim, the Board noted that our precedent has not previously recognized a pattern and practice claim under the Act, and TSO failed to articulate a proposed standard for determining such a claim. In addition, the Board noted that TSO’s purported pattern and practice claim consisted of an amalgam of mostly unrelated factual and legal disputes between the parties over a 13-year period, without sufficient evidence demonstrating improper motivation or per se violations of §§209-a.1(a) and (c) of the Act. (U-24765, 11/9/10).

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO (RONALD GRASSEL). The Board denied a motion by the charging party seeking leave to file exceptions pursuant to §212.4(h) of the Rules of Procedure (Rules) to an interim determination by the Director of Public Employment Practices and Representation (Director), pursuant to §204.2 (a) of the Rules, declining to process allegations contained in a charge alleging that the Board of Education of the City School District of the City of New York (District) violated §§209-a.1(a), (c), (f) and (g) of the Public Employees' Fair Employment Act (Act) by seeking to terminate the charging party, and by refusing to comply with a prior court decision. Following a review of the motion and after granting all reasonable inferences to be drawn from the facts alleged in the charge against the District, the Board concluded that the charging party had failed to establish the existence of extraordinary circumstances warranting the grant of leave to file exceptions for purposes of reviewing the Director’s interim determination. (U-30189, 11/9/10)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO (RONALD GRASSEL). The Board denied a motion by the charging party seeking leave to file exceptions pursuant to §212.4(h) of the Rules of Procedure (Rules) to an interim determination by the Director of Public Employment Practices and Representation (Director), pursuant to §204.2 (a) of the Rules, declining to process allegations contained in a charge that the Board of Education of the City School District of the City of New York (District) violated §§209-a.1(a) and (c) of the Public Employees' Fair Employment Act (Act) by seeking to terminate the charging party, by refusing to comply with a prior court decision, by ostracizing him, and by failing to respond to his letter, dated February 8, 2010. Following a review of the motion and after granting all reasonable inferences to be drawn from the facts alleged in the charge against the District, the Board concluded that the charging party failed to establish the existence of extraordinary circumstances warranting the grant of leave to file exceptions for purposes of reviewing the Director’s interim determination. (U-30052, 11/9/10)

YONKERS CITY SCHOOL DISTRICT. The Board affirmed a decision by an Administrative Law Judge (ALJ) finding that a school district violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it unilaterally transferred the duties of International Baccalaureate (IB) program developer at one of its schools to a nonunit administrator. The Board found that prior to the reassignment of the at-issue work, unit members had exclusively performed the work at the school for 14 months. In addition, the Board rejected the school district’s claims that the reassigned duties were not substantially similar and that the there was a change in qualifications. (U-27599, 11/9/10)

TOWN OF SPAFFORD. The Board affirmed a decision by an Administrative Law Judge (ALJ) dismissing a charge by Teamsters Local 317 (Teamsters) alleging that the Town of Spafford (Town) violated §209-a.1(a) of the Public Employees Fair Employment Act (Act) when it unilaterally increased the amount paid by the Town’s Highway Department motor vehicle operators toward the cost of their health insurance premiums after a question of representation arose. The Board affirmed the dismissal of the charge because the stipulated record demonstrated that the Town adopted the change in the health insurance contribution before the question of representation arose. Therefore, the Town did not improperly change the status quo during the relevant period. (U-28315, 11/9/10)

STATE OF NEW YORK (DEPARTMENT OF CORRECTIONALSERVICES – ALBION CORRECTIONAL FACILITY)(ROBERT SETLOCK). The Board affirmed the decision by the Administrative Law Judge (ALJ) dismissing a charge alleging a violation of §§209-a.1(a) and (c) of the Public Employees’ Fair Employment Act (Act) when the State terminated the charging party from a probationary Teacher II position based upon an improperly motivated recommendation by his immediate supervisor in retaliation for filing a grievance over a dress code dispute. Following a review of the record, the Board affirmed the dismissal of the charge because the charging party failed to prove that his immediate supervisor knew of his protected activity, an essential element of his claim. During his prima facie case, the charging party chose to call the immediate supervisor, and her supervisor, and solicited evidence demonstrating that the immediate supervisor was unaware of the grievance prior to making her recommendation that the charging party be terminated.

Practice Tip

In its decision, the Board also rejected the State’s procedural arguments that the charging party’s exceptions should be dismissed because the exceptions and brief were filed as a single document in violation of §213.2(a) of the Rules of Procedure (Rules), and that the exceptions did not satisfy the specificity requirements of §213.2(b) of the Rules. The Board concluded that although the charging party filed a single document, his exceptions and arguments were reasonably distinguishable, and the document set forth the questions raised, identified the parts of the ALJ’s decision challenged, contained citations to the record and set forth the grounds for the exceptions.

Practitioners are reminded of the importance of complying with §§213.2(a) and (b) and §213.3 of the Rules when filing exceptions and cross-exceptions with the Board. (U-27139, 12/24/10)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO (RONALD GRASSEL). The Board denied a motion by the charging party seeking leave to file exceptions pursuant to §212.4(h) of the Rules to a pre-conference ruling by an Administrative Law Judge (ALJ) extending the time for the United Federation of Teachers, Local 2, AFT, AFL-CIO (UFT) to file an answer to his charge alleging that it violated §§209-a.2(a) and (c) of the Public Employees' Fair Employment Act (Act). The Board held that a grant of an extension of time for a respondent to file an answer does not constitute extraordinary circumstances warranting interlocutory review. In addition, the Board reiterated that the charging party may face appropriate sanctions in the future, under §212(j) of the Rules, if he continues his practice of filing vexatious motions and pleadings. (U-30052, 12/24/10)

STATE OF NEW YORK. The Board affirmed, as modified, a decision by an Administrative Law Judge (ALJ) on an improper practice charge filed by New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFLCIO (Council 82) finding that the State of New York (State) violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) by refusing to negotiate in good faith with Council 82 concerning compensation for employees in the Agency Law Enforcement Services (ALES) unit for the period commencing on April 1, 2005.

Over the past decade, §209 of the Act was amended multiple times to create a two-track final negotiation impasse resolution procedure for law enforcement employees in certain negotiation units. Under these amendments, negotiation impasses relating to compensatory issues are subject to resolution through interest arbitration while noncompensatory issues remain subject to the Act’s preexisting procedure including fact-finding. In 2003 and 2006, the Legislature amended §§209.2 and 209.4(f) of the Act to add employees in the ALES unit to the group of employees entitled to the bifurcated final resolution system for negotiation disputes.

In the present case, the Board affirmed the ALJ’s finding that the State violated §209-a.1(d) of the Act when it refused to commence negotiations with respect to compensatory issues for the period commencing April 1, 2005 until the noncompensatory issues from the prior round of negotiations were resolved. In reaching its conclusion, the Board noted that in creating the bifurcated impasse resolution system, the Legislature did not mandate synchronization. Furthermore, the Board cited to the history of the Act to demonstrate legislative acceptance of distinct and separate timetables resulting from two-track impasse resolution processes.

The Board did, however, modify the ALJ’s decision to the extent that the ALJ stated that the State’s conduct reflected poorly upon the sincerity of its desire to reach an agreement because the State’s motivation was irrelevant to the disposition of Council 82’s charge. (U-27493, 12/24/10)

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Declaratory Rulings

NO ARCHIVED BOARD DECLARATORY RULINGS FOR 2009.

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Strikes

NO ARCHIVED STRIKE BOARD Decision Summaries FOR 2009.

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Local Procedures

NO ARCHIVED LOCAL PROCEDURES BOARD Decision Summaries FOR 2009.

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Other Matters

NO ARCHIVED OTHER MATTERS BOARD Decision Summaries FOR 2009.

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Decision Summaries of the Office of Public Employment Practices and Representation


Representation

BUFFALO UNITED CHARTER SCHOOL EDUCATION ASSOCIATION, NYSUT/AFT, AFL-CIO AND BUFFALO UNITED CHARTER SCHOOL. A petition to certify the Buffalo United Charter School Education Association, NYSUT/AFT, AFL-CIO as the bargaining representative of a unit of instructional employees at the Buffalo United Charter School was dismissed on a finding that the employees at issue are jointly employed by the charter school and National Heritage Academies, Inc. (NHA) a private for-profit corporation. Although the Charter Schools Act (Education Law, Article 56) extends collective bargaining rights to employees of charter schools, it does not extend PERB’s jurisdiction to employees who are jointly employed by a charter school and a private employer. (ALJ Fitzgerald, C-5878, 2/18/10)

FILLMORE ADMINISTRATORS ASSOCIATION, FILLMORE CENTRAL SCHOOL DISTRICT AND FILLMORE FACULTY ASSOCIATION. The School Guidance Counselor who, for years, had been treated by the District as an administrator, reported directly to the superintendent as did other administrators, was part of superintendent’s management team and attended, along with other administrators, superintendent’s twice monthly meetings was included in the petitioned-for administrators’ unit. (ALJ Doerr, C-5901, 3/1/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND NIAGARA FRONTIER TRANSPORTATION AUTHORITY. The unit clarification aspect of the petition was dismissed as the parties’ collectively negotiated agreement did not cover the titles petitioned for. The unit placement aspect of the petition was granted on a finding of a general community of interest and a failure of proof establishing managerial or confidential duties, supervisory duties or other duties which might create a conflict with CSEA unit employees. An agreement by the parties that CSEA would not seek to accrete the position of safety specialist unless the duties of the position changed, was not binding on PERB. (ALJ Doerr, CP-1174, 2/1/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF MONTGOMERY. The ALJ found that the business manager title was encompassed within the scope of the unit of County employees represented by CSEA and granted the unit clarification portion of the petition. Having done so, the ALJ did not reach the unit placement aspect of the petition or the County’s argument that the incumbents of the title were managerial or confidential. (ALJ Burritt, CP-1108, 2/10/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND NORTHERN ADIRONDACK CENTRAL SCHOOL DISTRICT. Pursuant to a unit placement petition filed by CSEA, the unrepresented titles of clerk, account clerk and typist were placed in a bargaining unit represented by CSEA where the District consented to the placement and the facts set forth in the petition and supporting documentation arguably supported such a placement. (ALJ Wlasuk, CP-1219, 2/10/10)

AMHERST HIGHWAY EMPLOYEES ASSOCIATION, INC. AND TOWN OF AMHERST. Part-time cleaners, watch attendants and laborers evidenced a regularity and continuity of employment sufficient to warrant coverage under the Act. Consistent with PERB’s preference for the largest units permitting for effective and meaningful negotiations, the part-time titles were added to the union’s full-time unit where a general community of interest existed. The Town did not assert that either the part-time status of the positions or the disparity in benefits between its full-time and part-time employees would inhibit effective bargaining. (ALJ Doerr, CP-1204, 2/11/10)

THE TEACHER AIDES AND STUDENT BEHAVIORAL ASSISTANTS ASSOCIATION OF MONROE 2-ORLEANS BOCES AND MONROE 2-ORLEANS BOCES. Petition seeking unit placement of the tutor in a bargaining unit represented by the Teacher Aides and Student Behavior Assistants Association of Monroe 2-Orleans BOCES was granted based on the community of interest found between the tutor and the teacher aides and student behavioral assistants as hourly employees. (ALJ Fitzgerald, CP-1180, 2/12/10)

ADMINISTRATOR’S ASSOCIATION OF ERIE COMMUNITY COLLEGE, UNITED AUTO WORKERS LOCAL 3300 AND COUNTY OF ERIE/ERIE COMMUNITY COLLEGE. The title of director of ERP systems and information security was added to the Association’s unit on a finding of a community of interest with employees of the College represented by the Association. The College’s assertions that the director was managerial or confidential were unsupported by record evidence. Similarly, there was no evidence that the director’s supervisory duties were significant enough to create a conflict sufficient to overcome community of interest factors. (ALJ Doerr, CP-1165, 2/23/10)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND TOWN OF COLONIE. The ALJ certified a unit of previously unrepresented employees of the Town but excluded from that unit as managerial the building department director, the general services director, the recreation and parks superintendent, the director of environmental services, the water district superintendent, the sewer district superintendent, the emergency medical services chief and deputy chief, and the personnel officer. (ALJ Burritt, C-5782, 5/12/10)

BINGHAMTON POLICE SUPERVISOR’S ASSOCIATION, INC., CITY OF BINGHAMTON AND BINGHAMTON POLICE BENEVOLENT ASSOCIATION. The ALJ rejected a petition seeking to fragment all supervisors from the bargaining unit represented by the PBA, which included all police employees other than the chief and had been in existence since 1969. The Association failed to show that the PBA had failed to adequately represent the supervisors, that there was a conflict of interest between the supervisors and police officers, or that PBA members had attempted to subvert the authority of supervisors. The ALJ did, however, find that the two assistant chiefs in the department had to be removed from the unit based on their managerial duties. (ALJ Burritt, C-5752, 6/4/10)

WILLIAM FLOYD UNION FREE SCHOOL DISTRICT AND UNITED PUBLIC SERVICE EMPLOYEES UNION AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. Where District’s security personnel shared common mission of safeguarding the District, the delineation of assignments within the buildings versus outside of the buildings would not warrant separate bargaining units. What does influence the analysis is the community of interest described by the similarity in terms and conditions of employment, supervision, training and job requirements. Also relevant to the consideration is the employer’s preference for one large group. Where community of interest and preference is established, as here, one larger unit will be ordered unless there is demonstrated a conflict of interest such as would impede meaningful collective bargaining and representation. Finding none, a combined unit of all security personnel was most appropriate and the petition was dismissed. Adding the petitioned for employees to the existing unit or ordering an election to determine majority status was not appropriate since the petition was filed during a period of unchallenged representation. (ALJ Cacavas, C-5903, 6/16/10)

WAYNE CENTRAL SCHOOL DISTRICT NURSES ASSOCIATION, WAYNE CENTRAL SCHOOL DISTRICT, AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. Petition to fragment registered nurses from a bargaining unit of District employees represented by CSEA was dismissed. Traditional fragmentation standards applied, not the fragmentation standard of Ichabod Crane Central School District, as the unit also included teaching assistants. (ALJ Doerr, C-5930, 6/28/10)

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 30 AND HUDSON RIVER PARK TRUST. The Director dismissed objections to the conduct of the election because they were not raised at the election count and because there was no systemic post office failure. (Director Klein, C-5947, 7/1/10)

MARCUS WHITMAN BUS DRIVERS’ ASSOCIATION AND MARCUS WHITMAN CENTRAL SCHOOL DISTRICT. A unit placement petition was granted adding the unrepresented titles of senior automotive mechanic, automotive mechanic, mechanic helper/bus driver, and substitute bus driver/mechanic to a bargaining unit of bus drivers, substitute bus drivers and bus monitors. The District’s objection concerned a lack of showing of interest from the affected employees, and was not relevant to the issue of whether the titles were appropriately placed in an existing unit. (ALJ Fitzgerald, CP-1241, 7/8/10)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, COUNCIL 82, AFSCME, AFL-CIO, AND CORNING COMMUNITY COLLEGE. A petition to represent a new unit of full-time and part-time college security guards employed by Corning Community College was granted, based on the community of interest established by the job mission and responsibilities of the titles. The higher pay rate and greater fringe benefits of the full time title are not sufficient to outweigh the community of interest where no conflict of interest for purposes of collective bargaining or contract administration is evident. (ALJ Fitzgerald, C-5976, 10/1/10)

FRANCIS W. CORCORAN AND KIPP ACADEMY CHARTER SCHOOL, INC. AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT. The ALJ dismissed the petition which sought to decertify the UFT as the negotiating agent of a unit of employees working for KIPP Academy. The ALJ found that employees of KIPP Academy were included in the District-wide negotiating unit and that the petition, therefore, sought to decertify a negotiating unit that did not exist and was not supported by the thirty percent showing of interest required to support a decertification petition of the District-wide unit. The ALJ found that the plain language of Education Law §2854.3(b), which applies public schools that are converted to charter schools, requires that KIPP Academy employees be included in the District-wide unit if their titles are like those in the District-wide unit and they are eligible for representation under the Act. The ALJ rejected the argument that Education Law §2854.3(b) did not apply to KIPP Academy employees because KIPP Academy was not a converted public school within the meaning of the Education Law. (ALJ Blassman, C-5879, 12/8/10)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 2055 AND CAPITAL DISTRICT OFF-TRACK BETTING CORP. The unit clarification aspect of the petition was dismissed. The parties’ agreement has a title specific recognition clause and the title sought is not included. The title sought is in fact, included on an agreed to title exclusion list. PERB however is not bound by agreement of the parties where statutory uniting criteria control. The unit placement aspect of the petition was dismissed as well. The parties’ stipulation showed no common community of interest factors. Common duties were shared by a title that also appears on the excluded list, and by a unit title that has been vacant for 15 years. (ALJ Doerr, CP-1201, 10/14/10)

BOCES ASSISTANT TEACHERS ASSOCIATION, NYSUT AND ORANGE-ULSTER BOARD OF COOPERATIVE EDUCATIONAL SERVICES AND UNITED PUBLIC SERVICE EMPLOYEES UNION. The unrepresented titles of computer network specialist, senior computer network specialist, technical assistant, computer technician, data communications specialist, audio-visual repairperson and electronics technician were added to UPSEU’s existing clerical bargaining unit. (ALJ Carlson, CP-1133, 12/3/10)

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Management / Confidential

HENDRICK HUDSON CENTRAL SCHOOL DISTRICT. The District’s application to designate a Senior Office Assistant (Automated Systems) as confidential pursuant to §201.7(a) of the Act was granted, with the consent of the Hendrick Hudson Educational Secretaries Association. (ALJ Burritt, E-2491, 2/8/10)

SOUTH COUNTRY CENTRAL SCHOOL DISTRICT. Insofar as the Clerk Typist reports directly to the Assistant Superintendent for Educational Services and assists and acts in a confidential capacity to that managerial employee, a confidential designation is warranted. (ALJ Cacavas, E-2492, 2/9/10)

LAWRENCE UNION FREE SCHOOL DISTRICT. The District’s application to designate Heena Saini, an accountant reporting to the assistant superintendent for business, as confidential within the meaning of §201.7(a) of the Act was granted upon the consent of the Educational Secretaries Association. (ALJ Blassman, E-2497, 2/9/10)

TRUMANSBURG CENTRAL SCHOOL DISTRICT. Christina Lincoln, secretary to the superintendent, was designated as confidential in accordance with the criteria set forth in §201.7(a) of the Act. (ALJ Fitzgerald, E-2498, 2/9/10)

SMITHTOWN CENTRAL SCHOOL DISTRICT. Where persons in the positions of principal clerk, clerk typist, and principal account clerk assist and act in a confidential capacity to managerial employees, confidential designations are warranted. (ALJ Cacavas, E-2489, 4/9/10)

SACHEM CENTERAL SCHOOL DISTRICT. The District’s application to designate Jennifer Ayala, Payroll Supervisor, as confidential within the meaning of §201.7(a) of the Act was granted upon consent. (ALJ Blassman, E-2501, 5/7/10)

EASTPORT SOUTH MANOR CENTRAL SCHOOL DISTRICT. The District’s application to designate Kimberley Kreger, account clerk typist, as confidential within the meaning of §201.7(a) of the Act was granted upon consent. (ALJ Maier, E-2506, 6/11/10)

FLORAL PARK-BELLEROSE UNION FREE SCHOOL DISTRICT. The District’s application to designate Eric Johnson, who holds the unrepresented position of Payroll Supervisor, as confidential within the meaning of §201.7(a) of the Act was granted upon Johnson’s consent. (ALJ Blassman, E-2505, 7/6/10)

LAKE PLACID CENTRAL SCHOOL DISTRICT. The District’s application to designate a clerk/typist and treasurer/account clerk as confidential was granted where the parties consented to the designations and the application supported such designations. (ALJ Wlasuk, E-2494, 9/30/10)

RYE CITY SCHOOL DISTRICT. The District’s application to designate a junior accountant as managerial was granted where the employee's duties related to collective bargaining supported such a designation. (ALJ Carlson, E-2474, 10/20/10)

SKANEATELES CENTRAL SCHOOL DISTRICT. The District’s application to designate a Director of Pupil Personnel and Special Services as managerial and a Typist 1 as confidential was granted where the parties consented to the designations and the factual averments in the application supported such designation. (ALJ Wlasuk, E-2511, 12/13/10)

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Improper Practices

TRANSPORT WORKERS UNION, LOCAL 106 (TRANSIT SUPERVISORS ORGANIZATION) AND NEW YORK CITY TRANSIT AUTHORITY AND SUBWAY SURFACE SUPERVISORS ASSOCIATION. The ALJ dismissed a charge alleging that the Authority violated §§209-a.1(d) of the Act when it transferred the unit work of office manager to employees in the new position of administrative SSI, a nonunit position. The ALJ found that the record did not support a finding that the duties performed by the administrative SSI were previously exclusively performed by the office managers. Instead, the record showed that office managers assisted and took direction from general superintendents, who headed the District Office. The administrative SSIs, in contrast, provided support and assistance to the zone superintendents, who reported to the office managers. The record further showed that the clerical and administrative tasks assigned to the administrative SSIs were tasks that the zone superintendents, who are not unit employees, previously performed themselves. (ALJ Blassman, U-27583, 2/3/10)

BETHLEHEM POLICE BENEVOLENT ASSOCIATION AND TOWN OF BETHLEHEM. An ALJ conditionally dismissed and deferred to the contractual grievance procedure a charge that the Town violated §209-a.1(d) of the Act when a police officer was directed to turn over his department-issued weapons, badge and identification card to the police chief. The parties agreed that a grievance had been filed addressing the issues presented by the charge and that deferral was therefore appropriate. (ALJ Burritt, U-29619, 2/8/10)

TREVOR OLLIVIERRE AND NEW YORK CITY TRANSIT AUTHORITY. The Director dismissed a charge, as amended, alleging that the employer violated the Act when it cancelled an arbitration hearing because the charge was devoid of facts which would establish improper motivation and because individuals lack standing to allege breaches of §209-a.1(e). (Director Klein, U-29691, 2/9/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. The ALJ sustained CSEA’s charge to the extent that it alleged that the County violated the Act when it imposed stricter standards upon employees who operate a County vehicle or use their own vehicles for County business, required unit employees to apply for and obtain approval for a County issued Motor Vehicle Operator Card and required unit employees to conduct a pre-inspection prior to driving a County motor vehicle. The ALJ noted that the stricter standards were not required by any law or regulation and that there was no record evidence of a need for change from prior policy, that only required that employees hold a valid driver license. The ALJ found that the County did not violate the Act when it required employees to complete a County issued motor vehicle accident questionnaire, because employees previously completed a County issued form and a New York State Department of Motor Vehicles form that requested substantially the same information. The ALJ also found no violation by the requirement that County employees attend driving classes during County time and at no cost to the employees, since employee attendance at training in lieu of regular work duties is not mandatorily negotiable. (ALJ Blassman, U-27322, 2/12/10)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An ALJ deferred a charge pursuant to Herkimer BOCES which alleged that the employer violated the Act by unilaterally reducing the number of parking permits to unit employees. (ALJ Maier, U-28384, 2/12/10)

GREENBURGH UNIFORMED FIREFIGHTERS ASSOCIATION, INC., LOCAL 1586, IAFF, AFL-CIO AND FAIRVIEW FIRE DISTRICT. An ALJ conditionally dismissed and deferred to the contractual grievance procedure a charge alleging that the Fairview Fire District violated the Act when it unilaterally changed a past practice concerning the payment of overtime to unit members who are called in to fill vacancies. (ALJ Carlson, U-28958, 2/16/10)

CITY OF CORNING AND CRYSTAL CITY POLICE BENEVOLENT ASSOCIATION OF CORNING, NEW YORK, INC. PBA demand that unit members be permitted to “shift swap” without regard to rank was a nonmandatory subject of bargaining. Possibility that an employer could be deprived of its prerogative to determine that a sergeant, lieutenant or captain, shall be present on a given shift or to determine the circumstances and contingencies under which it would agree to lesser ranking employees filling in for command officers rendered demand nonmandatory. PBA demand that payment for deceased employee’s accumulated accruals be made within 30 days of the date the employer has been provided with written documentation of the name of the deceased employee’s beneficiary or the executor of employee’s estate, whichever is later, was found to be a mandatory subject of negotiation. (ALJ Poland, U-29161, 2/18/10)

COUNTY OF ORANGE AND SHERIFF OF ORANGE COUNTY AND ORANGE COUNTY DEPUTY SHERIFF’S POLICE BENEVOLENT ASSOCIATION AND ORANGE COUNTY DEPUTY SHERIFF’S POLICE BENEVOLENT ASSOCIATION AND COUNTY OF ORANGE AND SHERIFF OF ORANGE COUNTY. The PBA was found to have violated §209-a.2(b) of the Act when it submitted proposals to interest arbitration pursuant to §209.4(g) of the Act which were not directly related to compensation, specifically proposals relating to the ability of employees to cash in or convert the value of accrued leave upon retirement or separation from employment. Such proposals were not directly related to compensation but represented potential compensation only. The County was found to have violated §209-a.1(d) of the Act when it submitted its proposal to require employees to use Family Medical Leave Act leave simultaneously with leave under the contract leave of absence provision. The proposal appended unpaid statutory leave onto unpaid contractual leave and, therefore, had no compensatory component. (ALJ Doerr, U-28693 & U-28738, 2/25/10)

NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND COUNTY OF ALBANY. By decision dated October 27, 2009, Nancy L. Burritt conditionally dismissed the charge subject to a motion to reopen in the event PERB’s deferral standards were not met. On December 7, 2009, PEF moved to reopen the charge because the arbitrator found that the expired collectively negotiated agreement did not address the issues raised in the charge. The Director reopened the improper practice charge to the extent it alleges a violation by implementing a plan to furlough County employees in its probation department one day per month over a five month period and not paying them for those days. The alleged violation of §209-a.1(e) remains dismissed and cannot be reopened as the arbitrator found that the contract was not breached. (Director Klein, U-29396, 2/26/10)

LOCAL 237, INTERNATIONAL BROTHERHOOD OF TEAMSTERS AND TOWN OF ISLIP. Where, for many years, certain employees were provided with Town vehicles for use during work hours, as well as commutation to and from work, the Town could not unilaterally change the practice and revoke the vehicle assignments. The fact that the practice in question did not affect the unit as a whole, but rather was title-specific, does not alter the conclusion. In addition, where the practice did not require written authorization of the Town supervisor, contrary to written policy, but was open and notorious and well-documented among and between high level authorities, the Town could not claim a defense to its action. Lastly, the Town was unable to claim entitlement to act by virtue of a unilaterally adopted administrative code and ethics policy. Reversion to a written instrument which states something contrary to an established practice is available only when the instrument has been mutually negotiated and agreed to. As for the claim that the Town refused to also negotiate the impact of its change in practice, that claim fails based not only on the fact that the issue was mandatorily negotiable, but also the lack of proof that the union made such a demand and it was rejected by the Town. The additional claim that the Town acted in bad faith when it initially proposed the change in negotiations and then unilaterally implemented it when it withdrew its proposal from the table also fails since uncontested testimony established that the Town erroneously believed that it had the managerial prerogative to so act; the totality of the Town’s conduct does not establish bad faith. Finally, there is insufficient evidence to find that the Town acted intentionally to interfere with employees in their exercise of protected rights and the action taken by the Town, though illegal under subsection (d), does not rise to the level of a per se violation of the Act under §209-a.1(a). (ALJ Cacavas, U-28429, 3/1/10)

MONROE COUNTY DEPUTY SHERIFFS’ ASSOCIATION, INC. AND COUNTY OF MONROE AND MONROE COUNTY SHERIFF’S OFFICE. An improper practice charge alleging a unilateral change in a practice of granting union release time to executive board members was dismissed. The parties’ collective bargaining agreement was found to fully address union release time and the Sheriff was privileged to act in accordance with that agreement. (ALJ Fitzgerald, U-28383, 3/2/10)

LARRY TAYLOR AND CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 1000, AFL-CIO AND STATE OF NEW YORK (OFFICE OF MENTAL HEALTHCREEDMOOR PSYCHIATRIC CENTER). The charging party’s claims that the attorney hired by his union to represent him was not well prepared for the disciplinary arbitration, arrived late, and pressured him to sign a settlement in which he resigned his employment, were insufficient for the finding of a violation where there was no proof of bad faith, arbitrariness or discrimination. Even if the attorney’s conduct was negligent, which conclusion is not supported by the record, that does not rise to a violation. The fact that the charging party was unhappy with the outcome of the proceedings is not enough to establish his claim of a breach of the duty of fair representation. (ALJ Cacavas, U-28739, 3/2/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF NASSAU. Where evidence established a practice within certain county departments of the employer providing employees with free bottled water for five or more years, the county’s unilateral action to stop that violated the Act. The county’s argument that it was motivated by fiscal and environmental concerns is not an adequate defense. There is also no merit to the claim that the collectively negotiated “zipper clause” in the agreement between the county and the union effectuated a waiver which entitled the county to so act. That clause waived the union’s right to negotiate matters not covered by the agreement, but not its right to object to unilateral changes in established past practices. An amendment to the charge which was allowed one week prior to the hearing to add additional departments as aggrieved was appropriate absent any showing of prejudice to the employer and especially in light of a requested adjournment by the employer to address the new allegations. The employer’s failure to assert a timeliness defense to those additions in its answer constituted a waiver of the affirmative defense. (ALJ Cacavas, U-28745, 3/2/10)

CARLETON MILLS AND NEW YORK CITY TRANSIT AUTHORITY. The Director dismissed a charge alleging that the employer violated the Act when it did not consistently apply promotional procedures and changed past practices relating to promotions because the charge was devoid of facts which would arguably establish a violation of the Act. Nor were there any facts to arguably establish any reprisal for the exercise of any activity protected by the Act. (Director Klein, U-29674, 3/4/10)

TEAMSTERS LOCAL 317 AND TOWN OF SPAFFORD. The ALJ dismissed a charge filed by the Teamsters alleging that the Town violated the Act when it increased the amount employees contribute towards the cost of their health insurance premium during the pendency of its representation petition and prior to its certification as exclusive negotiating representative of employees working in the highway department. The evidence demonstrated that the Town voted on the change, with future implementation date, prior to learning of the employees’ organizing activity. Thus, there was no change to the status quo when the increase took effect on the later date, even though the Teamsters’ representation petition was still pending. (ALJ Wlasuk, U-28315, 3/5/10)

ISLAND PARK ADMINISTRATORS’ ASSOCIATION AND ISLAND PARK UNION FREE SCHOOL DISTRICT. The Association’s charge, alleging that the District violated §209-a.1(d) of the Act when it unilaterally transferred the exclusive unit work of serving as the Summer School Administrator to a nonunit employee, was deferred over the Association’s objection to a pending grievance that raised the same issue. (ALJ Blassman, U-29428, 3/9/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF TIOGA. The ALJ found that six employees, one a CSEA unit president and one a steward, were not engaged in protected activity when they wore pink ribbons that symbolized membership in a “hate club” targeting the supervisor of some of the employees. The disciplinary action taken against all six, including a one-month suspension without pay for the unit president and termination for the steward, did not, therefore, violate §§209-a.1(a) and (c) of the Act, and the charge was dismissed in its entirety. (ALJ Burritt, U-27939, 3/15/10)

AHMED MUSTAFA ELGALAD AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Actions which occurred more than four months prior to the filing of the charge are time-barred. As such, where a union on February 13, 2008, unequivocally advised the charging party of a final decision not to pursue his grievance, an action brought challenging that on October 14, 2008, is untimely. Repeated pleas by the charging party for reconsideration or the refusal to accept the bargaining agent’s position does not toll the filing period. Even if such were not the case, a union’s refusal to take a grievance forward is not actionable unless bad faith, arbitrariness, or discrimination can be shown. On the failure to respond aspect of the charge, repeated inquiries raising the same questions and/or issues do not have to be responded to by a union. The union’s obligation is to respond to communications which are not merely redundant or onerous. Further, a charging party cannot sustain a failure to respond allegation when his claim is based on the failure of a particular person to respond or his dissatisfaction with the information he received. (ALJ Cacavas, U-28671, 3/19/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND WANTAGH PUBLIC LIBRARY. Unilateral changes to a dress code and past practice of allowing employees to wear capri pants and sneakers are prohibited under the Act in that they are not mere modifications to existing policy. The fact that a staff manual also referenced “appropriate attire” for employees did not entitle the employer to act unilaterally since only a negotiated instrument gives rise to a reversion defense. The employer was further wrong in its assertion that the union’s failure to object to the dress code when it originally was implemented in 2005 waived its right to assert a claim to new action taken in 2008. Where, however, the charging party additionally asserted an impact bargaining violation and failed to present any evidence to support the claim, that was dismissed, as was an alleged subsection (a) violation unsupported by a showing of intent or rising to the level of a per se violation. (ALJ Cacavas, U-28717, 3/19/10)

TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY SUPERIOR OFFICERS BENEVOLENT ASSOCIATION, BRIDGE AND TUNNEL OFFICER’S BENEVOLENT ASSOCIATION AND TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY. Where a subpoena request does not state in sufficient detail the rationale for the subpoena and its relevance to the case, it will be denied; the mere conclusory statement that the information sought is relevant, is insufficient. With respect to the substantive issue in the charge, a failure to establish that work related to monitoring security systems and closed circuit televisions is exclusive unit work fatally flaws a subcontracting claim. In addition, where further proof evidenced that the work in question is not even substantially similar to that done within the unit since it calls for a higher level of computer expertise and focuses not on monitoring as a security function, but in order to ensure the operability of the system, there is no basis for finding a subcontracting violation. With respect to a violation under subsection (a) of the Act, there was neither the requisite showing of intent to interfere with protected rights nor did the conduct alleged arise to the level of a per se violation. (ALJ Cacavas, U-28072 & U-28267, 3/19/10)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 1635-D, TRANSPORTATION UNIT AND WEBSTER CENTRAL SCHOOL DISTRICT. An improper practice charge, alleging that an extra pay assignment was removed from the vice president of the AFSCME unit in retaliation for her grievance activity on behalf of unit members, was dismissed, on a finding that the action taken was not the result of her engagement in protected activity. (ALJ Fitzgerald, U-28990, 3/29/10)

NEWFANE TEACHERS ASSOCIATION, NYSUT (#03110), AFT, NEA, AFL-CIO AND NEWFANE CENTRAL SCHOOL DISTRICT. An improper practice charge, alleging that the District violated the Act when it unilaterally changed its implementation of the Family Medical Leave Act to run such leave concurrently with sick leave, was deferred to the grievance and arbitration procedure under the parties’ collectively negotiated agreement. Since the same facts as pled in the charge are the subject of a pending grievance proceeding, the charge was deferred pursuant to the Board’s decision in Herkimer County BOCES. (ALJ Fitzgerald, U-29524, 4/7/10)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO, LOCAL 3978 AND COUNTY OF CHEMUNG AND SHERIFF OF CHEMUNG COUNTY. An ALJ conditionally dismissed and deferred to the contractual grievance procedure a charge alleging that the joint employer, County of Chemung and the Sheriff of Chemung County, violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it unilaterally implemented changes to its shift swapping policy. The parties agreed that since a grievance had been filed addressing the issues presented by the charge, deferral was appropriate. (ALJ Carlson, U-29572, 4/8/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, GREENE COUNTY LOCAL 820, UNIT 7000, GENERAL UNIT & UNIT 7000-01, JAIL CORRECTIONS UNIT AND COUNTY OF GREENE AND SHERIFF. An ALJ dismissed a charge alleging that the County of Greene and the County Sheriff violated §§209-a.1 (a) and (d) of the Public Employees’ Fair Employment Act by engaging in bad faith bargaining when the joint employer unilaterally changed health insurance benefits for future retirees. (ALJ Carlson, U-27995, 4/8/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 815, ERIE UNIT AND COUNTY OF ERIE AND ERIE COUNTY MEDICAL CENTER CORPORATION. The County violated §209-a.1(d) of the Act when it refused to execute memoranda of agreement negotiated between CSEA and the Erie County Medical Center Corporation. Public Authorities Law §3629.2 codified the parties’ bargaining practice when it specified that the County office of labor relations, for all purposes of the Act, will act as the agent of ECMCC. For several years ECMC and later ECMCC negotiated directly with CSEA on matters specific to the operation of the hospital. The County routinely signed the agreements reached between CSEA and ECMCC without having participated in negotiations leading to the agreements. As agent for ECMCC pursuant to the Public Authorities Law the County could not refuse to execute the agreements proffered by ECMCC. (ALJ Doerr, U-28856, 4/16/10)

EAST MEADOW UNION FREE SCHOOL DISTRICT AND EAST MEADOW TEACHERS ASSOCIATION, NYSUT, AFT, NEA, AFL-CIO. An ALJ held that the District violated the Act by bringing EL 3020-a charges against three teachers for the exercise of their protected activity. He found that the teachers were engaged in protected activity and that the District acted because of the exercise of this activity. Alternatively, he found that their actions were per se violations of the Act. In regarding to a fourth teacher, an arbitration award found that that teacher created a safety hazard. Deferring to the factual findings in that decision, the ALJ found that the teacher’s actions were not protected and alternatively his actions were disruptive and therefore not protected. A related charge concerning the transfer of that teacher was also dismissed. (ALJ Maier, U-27398, U-27735, U-27741 & U- 27783, 4/20/10)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK (BRADFORD). An ALJ dismissed a charge alleging a violation of §209-a.1(g) of the Act due to the employer denying a request for union representation. The charge was dismissed based upon the finding that the evidence did not demonstrate that a request for union representation had been made. (ALJ Maier, U-29032, 4/20/10)

BUFFALO POLICE BENEVOLENT ASSOCIATION AND CITY OF BUFFALO. The parties agreed to conditionally dismiss and defer to the contractually negotiated grievance procedure a charge alleging a violation of §§209-a.1(d) and (e) of the Act based on the employer’s unilateral cessation of contractual benefits to officers on injured on duty status. (ALJ Poland, U-29678, 4/22/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, MONROE COUNTY LOCAL 828, MONROE COUNTY EMPLOYEES UNIT 7400 AND COUNTY OF MONROE. CSEA’s charge alleging that the County of Monroe violated §209-a.1(d) of the Act when it unilaterally began offering a voluntary benefit program to unit members that was not approved or endorsed by CSEA, was conditionally dismissed and deferred to the contractual grievance procedure. (ALJ Doerr, U-29882, 4/29/10)

DORIS PALMER AND STATE OF NEW YORK (DEPARTMENT OF HEALTH). The Director dismissed a charge because it was devoid of facts which would establish improper motivation and did not meet several procedural requirements set forth in the Rules. (Director Klein, U-29862, 5/7/10)

NIAGARA CHARTER SCHOOL INSTRUCTIONAL STAFF ASSOCIATION/ NIAGARA WHEATFIELD TEACHERS ASSOCIATION/NYSUT, AFT AND NIAGARA CHARTER SCHOOL. On remand from the Board, the ALJ confirmed her prior decision at 42 PERB ¶4519 (2009), holding that the Niagara Charter School had violated §209-a.1(d) of the Act by its refusal to bargain with the Niagara Wheatfield Teachers Association/NYSUT, AFT, the employee organization designated by the Charter Schools Act as the bargaining representative of a unit of instructional employees of the school. Additional stipulations filed by the parties confirmed that the Niagara Wheatfield Teachers Association is the entity which has asserted the right to represent NCS employees, in a separate negotiating unit within its organization, and that it has designated such negotiating unit as the Niagara Charter School Instructional Staff Association/Niagara Wheatfield Teachers Association /NYSUT/AFT. (ALJ Fitzgerald, U-27727, 5/7/10)

ALBANY POLICE OFFICER’S UNION, LOCAL 2841, LAW ENFORCEMENT OFFICERS UNION COUNCIL 82, AFSCME, AFL-CIO AND CITY OF ALBANY. An ALJ conditionally dismissed and deferred to the contractual grievance procedure a charge alleging that the City of Albany violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally implemented changes to the health insurance benefits for current employees upon their retirement. The parties agreed that since a grievance had been filed addressing the issues presented by the charge, deferral was appropriate. (ALJ Burritt, U-29881, 5/7/10)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO AND STATE OF NEW YORK. The State violated §209-a.1(d) of the Act when it conditioned bargaining on compensable issues upon completion of negotiations on an initial contract. When the interest arbitration award expired, Council 82 could properly demand bargaining on matters related to compensation notwithstanding the fact that the parties had not proceeded to fact-finding on noncompensable issues. (ALJ Doerr, U-27493, 5/13/10)

JAMES GRAHAM AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). The Director dismissed the charge because individual employees lack standing to allege a violation of §209-a.1(d) of the Act. (Director Klein, U-29946, 5/14/10)

RONALD LEFEVRE AND AMALGAMATED TRANSIT UNION, LOCAL 1056. The Director dismissed the charge as it did not plead the requisite factual support required by §204.1(b)(3) of the Rules and there were no facts to arguably establish conduct that was arbitrary, discriminatory or in bad faith. (Director Klein, U-29858, 5/14/10)

BUFFALO PROFESSIONAL FIREFIGHTERS’ ASSOCIATION, INC. AND CITY OF BUFFALO. The charge, alleging that the department unilaterally imposed limits on the amount of overtime a firefighter could earn within a calendar year, was conditionally dismissed and deferred to the contractual grievance procedure. (ALJ Doerr, U-29243, 5/14/10)

SUFFOLK COUNTY CORRECTION OFFICERS ASSOCIATION AND SUFFOLK COUNTY DEPUTY SHERIFF’S POLICE BENEVOLENT ASSOCIATION AND COUNTY OF SUFFOLK AND SUFFOLK COUNTY SHERIFF. The ALJ dismissed the charges filed by the COA and the DSPBA alleging that the County violated §209-a.1(d) of the Act when it unilaterally transferred to security guards hired by the Department of Social Services the work of overnight supervision of the homeless in a trailer that was placed on the grounds of the Riverhead Correctional Facility. The record evidence demonstrated that neither the correction officers nor the deputy sheriffs previously performed the work in question and, therefore, neither the COA nor DSPBA had demonstrated the required exclusivity over the work. The ALJ also dismissed the allegation, raised only in the charge filed by DSPBA, that the placement of the trailer on the grounds of the Correctional Facility and its use as an overnight residence for the homeless constituted a unilateral change in a matter affecting unit employee safety. The ALJ found that the issue involved the County’s decision to provide homeless services at the Correctional Facility and constituted a managerial prerogative that is not mandatorily negotiable. The ALJ noted that, although the safety impact of the County’s decision was mandatorily negotiable on demand, the charge did not plead that the DSPBA had made a demand to negotiate impact or that the County had refused to negotiate pursuant to such a demand. (ALJ Blassman, U-27738 & U-27757, 5/14/10)

PATROLMAN’S BENEVOLENT ASSOCIATION OF SOUTHAMPTON TOWN, INC. An ALJ dismissed a charge which alleged that the PBA sought to submit nonmandatory subjects of bargaining to interest arbitration. The ALJ held that demands relating to vacation, staffing and an appeal procedure for General Municipal Law §207-c determinations were mandatory subjects of bargaining. (ALJ Maier, U-29503, 5/19/10)

NEW YORK STATE NURSES ASSOCIATION AND WESTCHESTER COUNTY HEALTH CARE CORPORATION. An ALJ deferred a charge to the parties’ grievance procedure which alleged that the employer violated the Act by changing the scheduling system. The portion of the charge alleging that the employer failed to provide information regarding the change was not deferred. (ALJ Maier, U-29883, 5/20/10)

JAMES GRAHAM AND NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION. The Director dismissed the charge as amended because it failed to allege facts sufficient to establish the union’s conduct as arbitrary, discriminatory or in bad faith. (Director Klein, U-29953, 5/24/10)

ST. LAWRENCE CENTRAL UNITED TEACHERS, NYSUT/AFT AND BRASHER FALLS CENTRAL SCHOOL DISTRICT. An ALJ dismissed a charge which alleged that the Brasher Falls Central School District (District) violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it ceased paying health insurance premiums for the surviving spouse of a retiree. The ALJ held that the charging party had failed to prove the existence of an enforceable past practice on the subject. The ALJ concluded that even had such a practice been proven, the District was privileged to revert to the terms of its agreement and eliminate any extra-contractual benefit it may have provided to surviving spouses following the death of a retiree. (ALJ Carlson, U-27916, 5/19/10)

WESTCHESTER COUNTY CORRECTION OFFICERS BENEVOLENT ASSOCIATION, INC. AND COUNTY OF WESTCHESTER. An ALJ sustained a charge alleging that the County violated §§209-a.1(a) and (b) of the Act when it prevented and/or attempted to prevent COBA from selecting who should represent two bargaining unit members during their investigatory interviews. The ALJ found that the County’s repeated and prolonged attempts to disallow COBA’s two representatives of choice, in the absence of a legitimate business reason or exigent circumstances, amounted to an unlawful power struggle with COBA that was tantamount to interference. In addition, the individual members’ rights were violated insofar as they did not receive the specific union representation that COBA intended to assign. (ALJ Wlasuk, U-28099, 5/26/10)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES). A charge that the employer’s denial of a probationary employee’s request for representation by his bargaining agent at a meeting with investigators for the employer violated §209-a.1(a) and (g) of the Act was upheld on a finding that §209-a.1(g) of the Act covers probationary employees; that it reasonably appeared that the atissue employee’s job was potentially in jeopardy, as that section of the statute requires; and that the employee had made a request for representation. (ALJ Comenzo, U-28910, 5/26/10)

ROCHESTER POLICE LOCUST CLUB, INC. AND CITY OF ROCHESTER. The City did not violate §209-a.1(d) of the Act when it transferred the work of supervising special operations from a captain in the bargaining unit to a nonunit commander. The transferred work was not substantially similar to the work performed by the unit captain. In addition the qualifications for the job changed. (ALJ Doerr, U-28807, 6/7/10)

DISTRICT COUNCIL 37, AFSCME, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ dismissed the charge filed by DC 37 which alleged that the District violated §§209-a.1(a) and (d) of the Act when it unilaterally transferred to unrepresented employees computer programming and related work that had previously been performed exclusively by DC 37 unit employees and when it improperly eliminated DC 37 unit positions from a particular District division and replaced them with unrepresented positions. The ALJ dismissed the transfer of unit work allegation because the record failed to demonstrate that DC 37 employees had exclusively performed the work in issue or that the work being performed by nonunit employees was substantially the same as that previously performed by DC 37 unit employees. The ALJ dismissed the allegation that the District had improperly replaced the eliminated DC 37 positions with unrepresented positions for failure to demonstrate that the employees in the new positions were performing the same work as the employees in the eliminated positions. (ALJ Blassman, U-27796, 6/7/10)

ADIRONDACK TEACHERS’ ASSOCIATION AND ADIRONDACK CENTRAL SCHOOL DISTRICT. The ALJ found that the Adirondack Central School District violated the Act when it unilaterally ended a practice of allowing the children of unit members to be present at their parent’s work location after the child’s school day. (ALJ Carlson, U-28120, 6/7/10)

CHRISTOPHER A. BROICH AND SOUTHAMPTON POLICE BENEVOLENT ASSOCIATION AND VILLAGE OF SOUTHAMPTON. The ALJ dismissed Broich’s charges which alleged that the PBA violated §209-a.2(c) of the Act when it failed to assist him and file a grievance challenging his suspension with pay, when it refused to and/or delayed filing a grievance and a charge challenging a new work rule that required unit employees on leave to remain in their homes during work hours, when it refused to file a grievance alleging that the Department was imposing a ticket quota and when it failed to provide him with written position statements. The record showed that the PBA president responded to all of Broich’s requests and sought to assist him, that the PBA president advised Broich that the PBA could not file a grievance regarding his suspension because the matter was statutory and that Broich had to wait until the Department filed disciplinary charges against him. The PBA responded to Broich’s concerns regarding the work rule by negotiating changes to it with the Department and then filing a grievance and charge. That the PBA did not file a grievance or charge as quickly as Broich desired does not demonstrate a breach of the duty of fair representation. The PBA also investigated Broich’s allegation that the Department was imposing a ticket quota and found that his grievance was without merit. Broich’s disagreement with the PBA’s positions, absent evidence that the PBA’s actions were arbitrary, discriminatory or taken in bad faith, did not violate the Act. (ALJ Blassman, U-26848, U-27196 & U-27365, 6/11/10)

JOHN COONS AND AFSCME COUNCIL 66, CITY OF ALBANY BLUE COLLAR WORKERS UNION, LOCAL 1961. An ALJ dismissed as untimely a charge alleging that AFSCME violated its duty of fair representation by failing to disclose and/or submit for a vote a new section of the contract to the membership at a ratification meeting because it was filed over four months following the alleged improper practice by AFSCME. (ALJ Wlasuk, U-28237, 6/14/10)

DEER PARK TEACHERS’ ASSOCIATION, NYSUT, AFT, NEA, AFL-CIO AND DEER PARK UNION FREE SCHOOL DISTRICT. The ALJ found that the District violated §209-a.1(e) of the Act when it failed to pay a vertical step increment of a salary schedule included in the expired agreement. Based upon Waterford-Halfmoon Union Free School District, 27 PERB ¶3070 (1994), the ALJ rejected the District’s argument that the vertical element of the salary schedule sunset because of the agreement’s reference to the date when the increment is paid. The ALJ also found that the parties’ practice during other contractual hiatus periods did not require a different result, since the Board rejected a similar argument in Cobleskill Central School District, 16 PERB ¶3057 (1983) (subsequent history omitted), and since the parties’ practice was equivocal. Nor did the fact that the parties specifically agreed in the 1976-1979 agreement to freeze both the vertical and lateral step movement for two years indicate that the parties intended during subsequent agreements to abandon the wage system that included both vertical and horizontal increments. (ALJ Blassman, U-28842, 6/14/10)

DANIEL MCCARTHY AND NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. The Director dismissed the charge alleging that the union violated the Act because it identified no union act within four months of the filing of the charge (Director Klein, U-30040, 6/15/10)

NAPTALI AKAMOND AND BOARD OF EDUCATION OF THE CITY OF NEW YORK AND UNITED FEDERATION OF TEACHERS. The Director dismissed a charge alleging that the employer violated the Act because individuals lack standing to allege breaches of the subdivisions allegedly violated and it was devoid of facts which would establish that the employee organization breached its duty of fair representation. (Director Klein, U-29996, 6/15/10)

DEER PARK UNION FREE SCHOOL DISTRICT AND DEER PARK UNIT OF SUFFOLK EDUCATIONAL LOCAL CSEA #870. An ALJ dismissed a charge based upon a waiver clause in the parties’ collective bargaining agreement permitting the employer to take unilateral action regarding matters not contained in the agreement. The charge alleged that the District unilaterally implemented a direct deposit system which, while that is a mandatory subject of bargaining, it had the right to do based upon the clause in question. (ALJ Maier, U-29562, 6/22/10)

STATE OF NEW YORK (OFFICE OF MENTAL HEALTH – BRONX PSYCHIATRIC CENTER). The ALJ found that the State violated Sections 209-a.1(a) and (c) of the Act when it excluded elected union officials from being considered for membership on the Staff Trauma Assistance Team at Bronx Psychiatric Center. (ALJ Carlson, U-28120, 6/22/10)

UNITED PUBLIC SERVICE EMPLOYEES UNION AND COUNTY OF COLUMBIA. The ALJ conditionally dismissed and deferred to the contractual grievance procedure a charge alleging that the County violated §209-a.1(d) of the Act when it unilaterally changed the method of awarding overtime within the facilities department of the County department of public works and unilaterally changed the reporting location of various facilities department employees. The parties agreed that a grievance had been filed addressing the issues presented by the charge and that deferral was therefore appropriate. (ALJ Burritt, U-29914, 6/29/10)

ALBANY PERMANENT PROFESSIONAL FIREFIGHTERS’ ASSOCIATION, LOCALS 2007 AND 2007-A, IAFF, AFL-CIO AND CITY OF ALBANY. An ALJ conditionally dismissed and deferred to the contractual grievance procedure a charge alleging that the City of Albany violated §§209-a.1(d) and (e) of the Public Employees’ Fair Employment Act (Act) when it unilaterally changed certain health plans and benefits previously offered to the Association’s members. All parties agreed that since a grievance had been filed addressing the issues presented by the charge, deferral was appropriate. (ALJ Wlasuk, U-29841, 7/1/10)

BETHLEHEM POLICE BENEVOLENT ASSOCIATION AND TOWN OF BETHLEHEM. An ALJ conditionally dismissed and deferred to the contractual grievance procedure a charge alleging that the Town of Bethlehem violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) by keeping more than one personnel file on its members. All parties agreed that since a grievance had been filed addressing the issues presented by the charge, deferral was appropriate. (ALJ Wlasuk, U-29961, 7/1/10)

CARLETON MILLS AND SUBWAY SURFACE SUPERVISORS ASSOCIATION AND NEW YORK CITY TRANSIT AUTHORITY. Mills’ charge, alleging that the SSSA violated §§209-a.2(a) and (c) of the Act for failure to file a grievance and to provide Mills with requested information, was dismissed based upon Mills’ failure to prosecute the charge. Mills failed to file information as twice directed by the ALJ in orders granting particularization. Mills did not request additional time to file the requested information or otherwise contact the ALJ, although advised that the failure to provide particularization could result in dismissal of the charge. (ALJ Blassman, U-29673, 7/6/10)

CITY OF BUFFALO AND BUFFALO POLICE BENEVOLENT ASSOCIATION, INC. Charges challenging demands submitted to interest arbitration by the parties were each dismissed in part, where the demands were found to be mandatorily negotiable. Those included a demand to remove nonmandatory language in the expired agreement concerning one-officer patrol cars, a demand concerning the parties’ disciplinary procedure, a demand to provide employees with retiree life insurance benefits, and a demand regarding scheduling.

The charges were sustained in regard to other proposals which were ordered to be withdrawn, including a demand that the top ranked eligible on a civil service list be promoted, a demand for a change in the criteria for approval of vacation leave, a demand for punitive damages in the event that any wage increases or payment be suspended, and an overly broad demand concerning establishment of an employee performance evaluation program. A demand to establish a residency requirement for officers was held to be prohibited pursuant to Public Officers Law §30. Demands which would effect the parties’ obligations prior to the term of the interest arbitration award at issue were also nonmandatory, as were demands which would affect retirement benefits of employees who retired prior to the term of this award, since such demands are outside the scope of the instant arbitration panel’s authority. (ALJ Fitzgerald, U-28960 & U-29000, 7/8/10)

CANANDAIGUA FIREFIGHTERS ASSOCIATION, LOCAL 2098, IAFF AND CITY OF CANANDAIGUA. The City violated §209-a.1(d) of the Act when it unilaterally changed the schedules of fire inspectors, requiring that they perform fire inspection tasks while on duty. Previously, fire inspectors performed tasks on off-duty time and were paid straight time for hours worked. Effect of change was to deny them their pay as fire inspectors. (ALJ Doerr, U-28926, 7/9/10)

CHEMUNG COUNTY AND CHEMUNG COUNTY SHERIFF’S DEPARTMENT AND CHEMUNG COUNTY SHERIFF’S ASSOCIATION, INC. A bargaining demand submitted to interest arbitration seeking to establish a hearing procedure for review of County determinations regarding General Municipal Law §207-c benefits was found to be a nonmandatory subject of bargaining pursuant to §209.4(g) of the Act, which grants interest arbitration rights to deputy sheriffs only as to issues directly related to compensation. The Association’s procedural objections to the charge were dismissed on the finding that the challenged amendments were properly received and related back to the original timely filed charge. (ALJ Fitzgerald, U-29007, 7/9/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND CITY OF SYRACUSE. The ALJ found that the City of Syracuse had not made a unilateral change in a term and condition of employment when unit employees were advised that the term residency in the City charter meant domicile. The residency requirement, as enforced following a 1991 referendum, had equated residence and domicile and CSEA had been aware of the City’s position on that issue since 1991. The ALJ also found, however, that the new form used by the City to investigate employees suspected of violation of the residency requirement violated §209-a.1(d) of the Act because it required employee participation in employer recordkeeping, without first negotiating with CSEA. (ALJ Burritt, U-27431, 7/16/10)

LIVINGSTON COUNTY COALITION OF PATROL SERVICES AND COUNTY OF LIVINGSTON. County’s charge, alleging that police union unlawfully refused to execute collective bargaining agreement, was dismissed where evidence showed that signed tentative agreement and final agreement presented to union for signature incorporated provision pertaining to retiree health insurance eligibility, which provision was not based on any meeting of the minds but, rather, on what County had inferred from the union’s actions during and after negotiations. In particular, evidence did not reveal that parties ever discussed changing the service requirements for retiree health insurance eligibility. Accordingly, employee organization was not under obligation to sign a final agreement incorporating said change even though they had signed a tentative agreement containing the disputed language. Police Union’s charge, based on the same facts and circumstances, alleging that the County violated the Act by submitting the collective bargaining agreement for signature was also dismissed where, given the circumstances, evidence did not reveal that the County’s actions amounted to bad faith bargaining. (ALJ Poland, U-29196 & U-29244, 7/19/10)

LOCAL 372, DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. An ALJ deferred a charge to the grievance and arbitration procedure in which a grievance had been filed raising the same allegations as did the charge. (ALJ Maier, U-28899, 7/20/10)

UNITED TRANSPORTATION UNION LOCAL 1440 AND STATEN ISLAND RAPID TRANSIT AUTHORITY. An ALJ deferred a charge to the grievance and arbitration procedure in which a grievance had been filed raising the same allegations as did the charge. (ALJ Maier, U-29665, 7/29/10)

COUNTY OF CORTLAND and CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, CORTLAND COUNTY UNIT 6550, CORTLAND COUNTY LOCAL 812. An ALJ conditionally dismissed and deferred to the contractual grievance procedure a charge alleging that the County of Cortland violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it rejected CSEA’s demand to negotiate a proposed transfer of unit work at the County recycling center. All parties agreed that since a grievance had been filed addressing the issues presented by the charge, deferral was appropriate. (ALJ Carlson, U-29999, 7/29/10)

ROCHESTER FIREFIGHTERS ASSOCIATION, IAFF, LOCAL 1071 AND CITY OF ROCHESTER. An improper practice charge, alleging that the City violated the Act when it changed a past practice regarding the rank of the employees permitted to fill battalion chief shifts in instances where a floater who has been scheduled to cover for a battalion chief on furlough or cycle time has an unanticipated absence, was dismissed. Since an employer’s managerial right to determine its level of staffing includes the number of employees on duty in each job title and rank, the matter at issue is a nonmandatory subject of bargaining, thus, there is no obligation to bargain even if a past practice was established. (ALJ Fitzgerald, U-28700, 7/30/10)

ROCKLAND COUNTY SHERIFF’S DEPUTIES ASSOCIATION, INC. AND COUNTY OF ROCKLAND AND ROCKLAND COUNTY SHERIFF. An ALJ found that the County violated §209-a.1(d) of the Act when it unilaterally changed the work schedules of officers assigned to area posts 1 and 3. Shifts and work schedules constitute mandatory subjects of bargaining, and none of the County’s affirmative defenses were found to have merit. (ALJ Carlson, U-28249, 8/5/10)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, DISTRICT COUNCIL 82, AFSCME, AFL-CIO, LOCAL 3978 AND COUNTY OF CHEMUNG AND CHEMUNG COUNTY SHERIFF. An ALJ found that the County violated §209-a.1(d) of the Act when it unilaterally changed the start and end time of correction sergeants’ shifts on days they would not be acting as supervisors. Shifts and work schedules constitute mandatory subjects of bargaining, and none of the County’s affirmative defenses were found to have merit. (ALJ Wlasuk, U-28219, 8/6/10)

SUFFOLK COUNTY POLICE BENEVOLENT ASSOCIATION, SUPERIOR OFFICERS ASSOCIATION OF THE POLICE DEPARTMENT OF THE COUNTY OF SUFFOLK AND COUNTY OF SUFFOLK. An ALJ dismissed charges in a consolidated hearing which alleged that the County violated the Act by transferring the exclusive work of patrolling and supervising portions of the Long Island Expressway and the Sunrise Highway. The ALJ determined that the work in issue was patrolling the roadways within the police district, and that the work was defined by the actual work performed and not, for example, by reference to being dispatched pursuant to a 911 call. The ALJ also determined that the work had not been performed exclusively and that the work performed by nonunit individuals was more than de minimis. (ALJ Maier, U-28610 & U-28611, 8/12/10)

LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS AND CITY OF WHITE PLAINS. The Director dismissed the charge because a breach of an agreement is not a violation of the Act. (Director Klein, U-30154, 8/16/10)

WENDY STEPHENS AND CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 815. The Director dismissed the charge because it was untimely and there were no facts to arguably establish any CSEA conduct as arbitrary, discriminatory or in bad faith. (Director Klein, U-30212, 8/16/10)

WENDY STEPHENS AND ERIE COUNTY MEDICAL CENTER. The Director dismissed the charge because it was devoid of any claim or facts sufficient to arguably establish any interference, restraint or coercion in the exercise of rights guaranteed in §202 of the Act or any discrimination for the purpose of encouraging or discouraging membership in, or participation in, any employee organization activity. (Director Klein, U-30213, 8/16/10)

TRANSPORT WORKERS UNION LOCAL 100, AFL-CIO AND NEW YORK CITY TRANSIT AUTHORITY. An ALJ deferred a charge to the grievance and arbitration procedure in which a grievance had been filed raising the same allegations as did the charge. (ALJ Maier, U-30013, 8/16/10)

ANNETTA BELL AND UNITED FEDERATION OF TEACHERS. The Director dismissed the charge because it was devoid of facts and individuals lack standing to allege a violation of §209-a.2(b) of the Act. (Director Klein, U-30176, 8/17/10)

MICHAEL LUCCHESSE AND NEW YORK CITY TRANSIT AUTHORITY AND LOCAL 100, TRANSPORT WORKERS UNION. The Director dismissed the charge as amended because it failed to identify the date of any acts or allege facts sufficient to establish conduct as arbitrary, discriminatory or in bad faith. (Director Klein, U-30164, 8/17/10)

EDWARD ARREDONDO AND COUNTY OF NASSAU AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the amended charge against the union and employer because no operative act occurred within four months of the filing of the charge and there were no facts to arguably establish conduct as arbitrary, discriminatory or in bad faith. (Director Klein, U-29830, 8/26/10)

NEW YORK STATE LAW ENFORCEMENT OFFICERS UNION, COUNCIL 82, AFSCME, AFL-CIO, GREENE COUNTY DEPUTY SHERIFF’S ASSOCIATION, LOCAL 2790G AND COUNTY OF GREENE AND SHERIFF OF GREENE COUNTY. On remand, a charge that the employer violated its duty to bargain by failing to inform the bargaining agent at negotiations that changes it sought to two aspects of a health insurance plan would cause an increase in an unrelated co-payment was dismissed. While duties to provide information both absent request and on request were determined to exist under certain circumstances, the employer was found, on this record, to have had no duty to provide the information. (ALJ Comenzo, U-27095, 8/26/10)

BLOSSOM RANNIE AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed the charge because only public employee organizations can violate §209-a.2(c) of the Act. (Director Klein, U-30251, 8/31/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF ALBANY. The Director granted a motion to reopen a charge that had been deferred to the grievance procedure. (Director Klein, U-29315, 9/1/10)

SCARSDALE POLICE BENEVOLENT ASSOCIATION AND VILLAGE OF SCARSDALE. The ALJ dismissed the charge alleging that the Village violated §209-a.1(d) of the Act when it refused the PBA’s demand to negotiate the amount of and/or the method by which that hourly rate of pay is calculated for the purpose of paying unit employees overtime. The ALJ found merit in the Village’s duty satisfaction defense based upon a contractual clause providing that negotiations “shall not be reopened on any item, whether contained in this Agreement or not, during the life of this Agreement.” (ALJ Blassman, U-27957, 9/8/10)

CANANDAIGUA FIREFIGHTERS ASSOCIATION, LOCAL 2098, IAFF AND CITY OF CANANDAIGUA. The City was found to have violated §209-a.1(d) of the Act when it transferred the work of driving and operating fire fighting equipment and maintenance of the fire house to volunteer firefighters. The City also transferred the following work in violation of the Act; fire inspection duties, firefighting in the Town of Canandaigua, and hydrant testing. The City did not violate the Act when it eliminated the fire captain position or when it reduced the firefighters’ response to EMS calls. (ALJ Doerr, U-29660, 9/10/10)

SUFFOLK COUNTY WATER AUTHORITY AND LOCAL 393, UTILITY WORKERS UNION OF AMERICA, AFLCIO. Where a prior arbitration award, as well as a PERB Administrative Law Judge decision, ruled that language in the parties’ collectively negotiated agreement allows the employer to subcontract so long as doing so does not effectuate a layoff or reduction in pay rate for unit members, the charging party is precluded from relitigating the issue. Although the type of work subcontracted in the present case is different than that which was at issue in the earlier decisions, the language of the agreement remains the same and the parties stipulated that no pay rate reduction or layoff resulted from the employer’s giving the work to an outside contractor. While the difference in the underlying work makes the doctrine of res judicata inapplicable, the narrower doctrine of collateral estoppel bars reexamination of the issue of the effect of the contractual language. In addition, the employer’s affirmative defenses of duty satisfaction and waiver based on the contractual language bar the charging party from claiming now that the subcontracting was an unlawful unilateral act. (ALJ Cacavas, U-28599, 9/14/10)

VILLAGE OF WASHINGTONVILLE AND VILLAGE OF WASHINGTONVILLE POLICE BENEVOLENT ASSOCIATION, INC. The ALJ found that the PBA violated §209-a.2(b) of the Act when it submitted a minimum staffing demand to interest arbitration. The Village violated §209-a.1(d) of the Act when it submitted a nondiscrimination proposal to interest arbitration. (ALJ Doerr, U-28935 & U-28973, 9/14/10)

RIVERHEAD CENTRAL FACULTY ASSOCIATION AND RIVERHEAD CENTRAL SCHOOL DISTRICT. The ALJ sustained part and dismissed part of two of three consolidated charges filed by the Association alleging interference, discrimination and unilateral changes and dismissed the third charge. In Case No. U-28442, the ALJ found that the District violated §§209-a.1(a) and (c) of the Act, when, in retaliation for a teacher criticizing the school board at the conclusion of a school board meeting, the superintendent verbally reprimanded him and placed a memorandum of discipline in his personnel file and discontinued his work as intramural golf supervisor and boys varsity golf coach. The ALJ found that the teacher’s remarks were protected under the Act since they were made in furtherance of the Association’s earlier protest and attempts to address the school board. The ALJ rejected the District’s arguments that the remarks were so disruptive or confrontational that their protected status should be removed. The ALJ found that the District also violated the Act when a principal told the teacher during a private meeting that his actions before the school board were unprofessional and that he should speak with her and not publicly about such matters. Since the principal is the teacher’s supervisor for purposes of evaluations, the ALJ found the principal’s statements inherently coercive and the equivalent of a directive that the teacher not engaged in the protected activity in question. The allegation that the principal embarrassed the teacher in a faculty meeting was dismissed, since the principal merely expressed her opinion and her remarks were not threatening or coercive. In Case No. U-28494, the ALJ dismissed for lack of proof the allegations that the District violated §§209-a.1(a), (c) and (d) of the Act when it interrogated the Association president, prevented the Association president from meeting with a building representative, unilaterally imposed new requirements for access to school buildings and limited the president’s right to leave a school building to perform representational duties. The record showed that no unilateral changes or interrogation occurred. As to three letters of warning that were placed in the Association president’s file, the ALJ found a violation and directed removal of the letter that warned the Association president for heraggressive advocacy during a telephone conversation with an administrator and dismissed the other allegations. The allegation in U-28493, that the District violated §§209-a.1(a), (c) and (d) of the Act when the superintendent sent the Association’s president a letter imposing conditions upon the Association’s ability to exercise its contractual right to address the school board, was dismissed because the conditions set forth in the superintendent’s letter were never enforced. (ALJ Blassman, U-28442, U-28493 & U-28494, 9/16/10)

TOWN OF EAST HAMPTON AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. An ALJ found that the Town violated the Act when it abolished the position of an employee who was engaged in protected activity. The employee had filed a grievance and advocated against a memorandum of agreement entered into between the Town and the union. The ALJ found that the Town was aware of the protected activity, which was the cause of the employee’s position being abolished. The ALJ rejected the Town’s argument that the abolition of the position was because of financial reasons in part because it promoted two other employees at the same time in the same department. (ALJ Maier, U-29015, 9/21/10)

TOWN OF WINDHAM AND UNITED PUBLIC SERVICE EMPLOYEES UNION. A proposal seeking to establish wage rates and seniority for unit member employees who separate from employment and are rehired within 12 months to unit position is a mandatory subject of bargaining. A proposal seeking to establish an order of layoff and notice of layoff was not preempted by NYS Town Law and was found to be a mandatory subject of bargaining. (ALJ Poland, U-29180, 9/22/10)

NANUET UNION FREE SCHOOL DISTRICT AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. An ALJ dismissed a charge alleging that the Nanuet Union Free School District violated the Act when, as part of an investigation into reports of an employee’s poor work performance, it installed a hidden surveillance camera in a public hallway to monitor and record certain activities of that employee. The ALJ found that since the action at issue was investigatory in nature, it constituted a nonmandatory subject of negotiation. (ALJ Carlson, U-27650, 9/29/10)

CITY OF ROCHESTER AND ROCHESTER POLICE LOCUST CLUB. The ALJ found that the Locust Club violated §209-a.2(b) of the Act when it submitted nonmandatory proposals to interest arbitration. Found to be nonmandatory were the following demands: that the City provide the union communication devices for the conduct of union business, that the City submit to the union a list of all contacts made to any member during off-duty hours using any communication device, a proposal governing the conduct of criminal investigations involving unit members, a proposal governing the conduct of critical incident investigations, and a proposal that the City provide release time to members to facilitate the annual policeman’s ball. (ALJ Doerr, U-29915, 10/5/10)

YONKERS FIRE FIGHTERS, LOCAL 628, IAFF, AFL-CIO AND CITY OF YONKERS. An ALJ deferred a charge to the grievance and arbitration procedure which alleged that the City failed to continue the terms of an expired agreement by not continuing the full cost of pension contributions to the New York State Police and Fire Retirement System. (ALJ Maier, U-29993, 10/6/10)

JUSTINO J. ORTIZ 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 because it identifies no act within the four-month period prior to its filing and because there are no facts to arguably establish arbitrary, discriminatory or bad faith conduct. (Director Klein, U-30346, 10/10/10)

ADAM MILLER AND UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. Upon a motion to dismiss at the end of the charging party’s case, the ALJ dismissed Miller’s charge which alleged that the UFT violated §209-a.2(c) of the Act when a UFT representative failed to inquire why Miller had been placed on a list of employees ineligible to work for the District, failed to take action to have an investigatory hearing occur in a timely manner and failed to respond to his inquiry regarding the result of the representative’s conversation with his principal. Assuming, as Miller testified, that one UFT representative did not respond to his inquiries or represent him in the District’s investigation of him, Miller failed to establish a prima facie case because he also testified that another UFT representative performed those actions and Miller is not entitled to a representative of his choice or to representation by multiple UFT representatives. (ALJ Blassman, U-28837, 10/14/10)

ANDRES S. ORTIZ, JR. AND BUFFALO POLICE BENEVOLENT ASSOCIATION AND CITY OF BUFFALO. Ortiz’s charge that the PBA breached its duty of fair representation in the handling of his grievance was dismissed by the ALJ. Several grievances filed in the 1990’s were resolved through the triage agreement in 2008. The delay was not the fault of the PBA and its failure to secure a financial remedy was the result of a policy of the arbitrator. The record was devoid of any evidence of bad faith, arbitrariness or discrimination. (ALJ Doerr, U-29003, 10/14/10)

VILLAGE OF BALDWINSVILLE AND BALDWINSVILLE POLICE BENEVOLENT ASSOCIATION. Improper practice charges alleging that the parties each submitted nonmandatory subjects of bargaining to interest arbitration, upheld in part by the ALJ. The PBA was found to have submitted certain nonmandatory language including the following: minimum staffing, requirements that certain vacancies be filled by overtime, restrictions on scheduling officers for special events, and a requirement of notice to the PBA of all rule, regulation or procedural changes issued by the Village. Also found nonmandatory was language concerning Village decisions to direct employees receiving benefits under General Municipal Law §207-c to report for light duty, and a demand that such employees would continue to receive benefits pending an employee’s appeal of an order to report for light duty. The charge filed by the PBA was dismissed, as the challenged non-discrimination language proposed to add an additional avenue for redress of statutory rights and was found not to violate public policy. (ALJ Fitzgerald, U-29453 & U-29481, 10/14/10)

VILLAGE OF CANTON AND CANTON POLICE ASSOCIATION. The Canton Police Association was found by the ALJ to have violated §209-a.2(b) of the Act when it submitted a demand regarding minimum staffing to compulsory interest arbitration, after its defenses that the charge was untimely filed and that the demand was mandatory were rejected. The charge was timely filed, in accordance with the Rules of Procedure, within ten days of the Village’s receipt of the petition for interest arbitration, and not later the date on which it filed its response to the petition. The demand was found nonmandatory since minimum staffing is a nonmandatory subject of bargaining, and the language was not converted to a mandatory subject of bargaining between the parties by the conversion theory adopted in Cohoes, since the Article in the expired agreement sought to be amended addressed only the subject of work schedules, and not minimum staffing. (ALJ Fitzgerald, U-29658, 10/18/10)

BETTY ADAMS 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 because it did not plead facts sufficient to arguably establish arbitrary, discriminatory or bad faith conduct. (Director Klein, U-30344, 10/20/10)

JUSTINO J. ORTIZ AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The Director dismissed the charge because there were no facts to arguably establish a violation of certain subdivisions of the Act and because charging party lacked standing to allege certain violations. (Director Klein, U-30347, 10/20/10)

UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The UFT’s charge, alleging that the District violated §209-a.1(d) of the Act when it changed the policies and practices it uses to investigate discrimination and harassment complaints against unit employees, was deferred on the merits to a pending contractual grievance. (ALJ Blassman, U-28566, 10/25/10)

MALVERNE POLICE BENEVOLENT ASSOCIATION AND INCORPORATED VILLAGE OF MALVERNE. Although the charging party failed to prove intent by a preponderance of the evidence and thus failed to establish a violation under §209-a.1(c), the employer’s denial to employees of their choice of representative in investigatory interviews which reasonably could have led to discipline rose to the level of a per se violation of §209-a.1(a) of the Act. The employer, however, effectively rebutted the presumed intent to establish that its reason for denying members their choice of representative was based on the fact that the PBA president, who had been requested, was himself a primary target of the investigation. The employer’s assertion of a duty satisfaction defense, however, would not have brought it relief. The duty satisfaction defense, which relies on the argument that the action challenged in the charge is permitted under the collectively negotiated agreement (Agreement) between the parties, applies to §209-a.1(d) violations and the duty to bargain a mandatory subject of negotiations. The defense is not applicable to §209-a.1(a) or (c). Lastly, where reference is made to investigations which commenced some five months prior to the filing of the charge, but no evidence was presented to establish that the employer at that time announced and implemented its rule banning the PBA president from representation, the charge as it pertains to interviews within the four month period is timely. Notably, this charge was not filed under §209-a.1(g) of the Act; no finding is made as to a violation there under since causes of action not pled may not form the basis for a finding of violation. (ALJ Cacavas, U-28336, 10/25/10)

VILLAGE OF MONTGOMERY POLICE BENEVOLENT ASSOCIATION, INC. AND VILLAGE OF MONTGOMERY. In an improper practice charge filed by the Village of Montgomery alleging that the Village of Montgomery Police Benevolent Association, Inc. violated §209-a.2(b) of the Act by submitting nonmandatory demands to interest arbitration, the demand to limit the amount of time a reprimand may remain in an employee’s file and a demand that discipline be imposed for incompetence or misconduct were found to be mandatorily negotiable. Similarly, the PBA’s proposal for use of in-house titles was found to be mandatory as was so much of the demand governing promotions that did not deal with criteria. The PBA’s charge alleged the Village violated §209-a.1(d) was dismissed. The Village’s charge was, contrary to the PBA’s assertion, timely filed and its proposal for retroactive pay was mandatorily negotiable. (ALJ Doerr, U-28780 & U-28818, 10/27/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, LOCAL 832, CITY OF NORTH TONAWANDA UNIT 7692 AND CITY OF NORTH TONAWANDA. The ALJ deferred a charge to the grievance and arbitration procedure in the parties’ current collective bargaining agreement when a grievance had been filed raising the same allegations as did the charge. (ALJ Doerr, U-30442, 10/29/10)

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, AFL-CIO, LOCAL 515A AND CITY OF NORTH TONAWANDA. The ALJ deferred a charge to the grievance and arbitration procedure in the parties’ current collective bargaining agreement when a grievance had been filed raising the same allegations as did the charge. (ALJ Doerr, U-30334, 10/29/10)

NORTH TONAWANDA PROFESSIONAL FIREFIGHTERS ASSOCIATION IAFF, LOCAL 1333 AND CITY OF NORTH TONAWANDA. The ALJ deferred a charge to the grievance and arbitration procedure in the parties’ current collective bargaining agreement when a grievance had been filed raising the same allegations as did the charge. (ALJ Doerr, U-30365, 10/29/10)

PUBLIC EMPLOYEES FEDERATION, AFL-CIO AND THE STATE OF NEW YORK (STATE LIQUOR AUTHORITY). Pursuant to the Board’s decision in Herkimer County BOCES, an ALJ deferred a charge to the grievance and arbitration procedure which alleged that the State failed to continue to assign a vehicle to a unit employee. A grievance was pending which raised the same issue as the charge and the parties’ collective bargaining agreement was in effect. (ALJ Maier, U-30105, 10/29/10)

MAJID ZARINFAR 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 against both respondents because the alleged facts did not arguably establish a violation of the Act. (Director Klein, U-30336, 10/29/10)

NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. (NYSCOPBA) AND STATE OF NEW YORK (DEPARTMENT OF CORRECTIONAL SERVICES – GREEN HAVEN CORRECTIONAL FACILITY). The State of New York (Department of Correctional Services – Green Haven Correctional Facility) was found to have violated §209-a.1(g) of the Act when it denied NYSCOPBA representation of a probationary correction officer during questioning by DOCS Office of Inspector General investigators regarding an alleged staff assault on an inmate. The fact that the correction officer was in his probationary term did not exclude him from the right to representation under §209-a.1(g). (ALJ Fitzgerald, U-28998, 11/3/10)

TOWN OF GEDDES POLICE BENEVOLENT ASSOCIATION AND TOWN OF GEDDES. The ALJ dismissed the PBA’s charge alleging that the Town violated §209-a.1(d) of the Act when it discontinued a practice of allowing unit employees, upon retirement, to elect to indefinitely continue family health insurance coverage as long as the retiree paid the difference between the individual and family plan premiums. The record testimony established that the PBA unit memberretiree was, in fact, paying the difference between individual and family plan premiums to maintain his family health coverage post-retirement; thus, there was no change in past practice as alleged in the charge. In addition, the PBA lacked evidence to support its contention that the past practice included indefinite family coverage post-retirement. (ALJ Wlasuk, U-28434, 11/19/10)

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 2028 AND NIAGARA FRONTIER TRANSPORTATION AUTHORITY. The ALJ declined to place a Senior Project Manager and three Project Managers in petitioner’s unit on a finding that in the course of their work they exercised independent judgment in selecting among options the manner and means by which the Authority met its mission. Specifically, they independently made decisions regarding the availability of bargaining unit work and premium pay. (ALJ Doerr, CP-1232, 11/24/10)

RYE POLICE ASSOCIATION AND CITY OF RYE. An ALJ deferred that portion of a charge to the grievance and arbitration procedure which alleged that the City unilaterally changed Workers Compensation procedures. The parties confirmed on the record that a grievance was pending which raised the same issues as the charge and that the collective bargaining agreement ends in binding arbitration. A second unrelated allegation of the charge was not deferred and proceeded to hearing. (ALJ Maier, U-29126, 11/26/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COUNTY OF MONTGOMERY. The ALJ found that the employer’s refusal of the bargaining agent’s request for information in relation to a notice of discipline and resulting employee grievance violated the Act. The information was similar to that covered in the Board’s 2008 decision in State of New York-Unified Court System. The employer’s defense, based on the Appellate Division’s decision in that case, was rejected as that decision did not apply to contractual disciplinary grievances. Alternatively, the defense was rejected, citing Newark Valley CSD, on the basis that PERB, as relevant here, is bound only by decisions of the Court of Appeals, due to PERB’s state-wide jurisdiction and responsibility for developing and implementing a state-wide labor policy. (Assistant Director Comenzo, U-29630, 11/30/10)

COUNTY OF BROOME AND BROOME COUNTY SHERIFF AND SHERIFF’S LAW ENFORCEMENT OFFICERS’ ASSOCIATION. The ALJ ordered the Association to withdraw several proposals not directly related to compensation from interest arbitration. The ALJ also found that there is no requirement that a charge objecting to arbitrability be filed simultaneously with a response to a petition for compulsory interest arbitration. (ALJ Doerr, U-30019 & U-30044, 12/3/10)

GERARD K. FULLER AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO AND COPIAGUE UNION FREE SCHOOL DISTRICT. The ALJ dismissed the charge, which alleged that the District violated §209-a.1(a) of the Act when it discharged Fuller from employment and that CSEA violated §§209-a.2 (b) and (c) of the Act when it failed to represent Fuller during a meeting in which he was suspended from his employment with the District, when it refused to file a grievance challenging the District’s decision to discharge him and when it told Fuller that CSEA could not help him. As to the allegations against the District, the ALJ found no record evidence demonstrating that the District’s actions were taken in order to interfere with his rights under §202 of the Act or that they had such an effect. Nor was there any record evidence that the District took action against Fuller because he engaged in activity protected under the Act. As to the allegation that CSEA violated its duty of fair representation, the ALJ found no record evidence showing that CSEA acted arbitrarily, discriminatorily or in bad faith in representing Fuller. CSEA represented Fuller in the meeting and advised him that he had no right to a hearing pursuant to contract or law. That Fuller disagreed with CSEA’s advice does not breach the Act. The ALJ dismissed the alleged violation of §209-a.2(b) of the Act for lack of standing. (ALJ Blassman, U-29177, 12/3/10)

JOSE E. VEGA AND AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1037 AND CITY OF ALBANY. An ALJ dismissed a charge alleging that the American Federation of State, County and Municipal Employees, Council 66, Local 1037, violated the Act when it failed to respond to or return Vega’s phone calls and requests for information. Following the presentation of the charging party's case at a hearing in the matter, the ALJ had granted a motion to dismiss the charge for failure to prove a prima facie case. The ALJ confirmed that decision. (ALJ Carlson, U-28105, 12/3/10)

TOWN OF CORNWALL AND TOWN OF CORNWALL POLICE BENEVOLENT ASSOCIATION. The ALJ held that the Town’s General Orders 18.01 and 18.02 enacted pursuant to Town law §154 did not act to preempt bargaining with regard to police discipline. PBA’s bill of rights could not be read to apply to those outside of the bargaining units of employees represented by the PBA. As the bill of rights was found to be mandatory in nature, it was properly submitted to interest arbitration. (ALJ Doerr, U-29600 & U-29601, 12/8/10)

WILLIAM BRONTS AND TOWN OF CRAWFORD. The Director dismissed the charge because it did not arguably establish a violation of the Act. (Director Klein, U-30531, 12/8/10)

MICHAEL LUCCHESSE AND NEW YORK CITY TRANSIT AUTHORITY AND TRANSPORT WORKERS UNION. The Director dismissed the charge for lack of standing and because there were no facts to arguably establish a violation of the Act. (Director Klein, U-30429, 12/8/10)

WILLIAM BRONTS AND CIVIL SERVICE EMPLOYEES ASSOCIATION, TOWN OF CRAWFORD UNIT 836. The Director dismissed the charge because inter alia, there were no facts to arguably establish a violation of the Act. (Director Klein, U-30530, 12/8/10)

YOSEPH DAVID IVRY AND DISTRICT COUNCIL 37, AFSCME, LOCAL 1070. The Director dismissed the charge because it did not identify the dates for the alleged improper practices. (Director Klein, U-30479, 12/8/10)

SARATOGA ADMINISTRATORS ASSOCIATION AND SARATOGA SPRINGS CITY SCHOOL DISTRICT. An ALJ conditionally dismissed a charge alleging that the Saratoga Springs City School District violated the Act when it unilaterally changed its indemnity and PPO health insurance plans, deferring to a pending grievance filed pursuant to the parties’ contractual grievance procedures. (ALJ Carlson, U-30228, 12/9/10)

MARIA ROSE CAMOIN AND STATE OF NEW YORK UNIFIED COURT SYSTEM. The Director dismissed the charge because it did not arguably establish a violation of the Act. An amendment was also dismissed because it added a new party and was grounded upon a different violation of the Act. (Director Klein, U-30553, 12/14/10)

EUGENIA PINKARD AND UNITED FEDERATION OF TEACHERS AND BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. The ALJ dismissed Pinkard’s charge, which alleged that the UFT violated §209-a.2(c) of the Act when a UFT appointed attorney did not advise Pinkard why a decision in her grievance hearing had not been rendered. The record showed that the attorney responded to her inquiry and referred her to other UFT representatives to pursue that matter. Pinkard was not entitled to a representative of her choice. To the extent that the charge complained that the UFT did not assist Pinkard in enforcing a Superintendent’s decision restoring her job, the record showed that the UFT initiated a mandamus court petition on Pinkard’s behalf and the record failed to demonstrate that the UFT’s actions in that regard were arbitrary, discriminatory or taken in bad faith, the standard required to establish a breach of the duty of fair representation. (ALJ Blassman, U-28996, 12/21/10)

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, AND TOWN OF PORTLAND. An improper practice charge, alleging that the Town violated the Act when it laid off the vice president of the CSEA unit, who was also the least senior employee, after CSEA pursued a grievance on behalf of another unit employee, was dismissed. Although the timing of the layoff was in close proximity to the settlement of the grievance, the Town’s evidence of a fiscal shortfall in the highway department budget was sufficient to establish that the reason for the action was financial rather than retaliatory. (ALJ Fitzgerald, U-29266, 12/22/10)

GREG GIORGIO AND CAPITAL DISTRICT REGIONAL OFFTRACK BETTING CORPORATION. An ALJ dismissed a charge alleging that the Capital District Regional Off-Track Betting Corporation violated the Act by excluding Giorgio from a bargaining unit and by terminating his employment in response to Giorgio’s participation in protected activities. (ALJ Carlson, U-28576, 12/27/10)

PROFESSIONAL, CLERICAL, TECHNICAL EMPLOYEES ASSOCIATION AND BUFFALO CITY SCHOOL DISTRICT. The ALJ held that the District violated the Act when it unilaterally subcontracted exclusive bargaining unit work. The at-issue work, i.e. on-site computer support, was performed by a unit employee for a period of nine months, which, under the circumstances was not too short a period of time to establish exclusivity. First, unit members were already providing on-site computer support to District employees, second, the individual whose work was subcontracted was working alongside the unit members already providing on-site support and third, the unit member whose work was subcontracted was trained in the performance of her work shortly before the subcontract, thus establishing an expectation among unit members that the work would remain in the unit. (ALJ Doerr, U-27860, 12/28/10)

CLINTON ADMINISTRATORS’ ASSOCIATION AND CLINTON CENTRAL SCHOOL DISTRICT. The Director dismissed a claim that the District violated the Act as untimely and lacking the requisite factual support. (Director Klein, U-30624, 12/28/10)

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Declaratory Rulings

ROCKLAND COUNTY PATROLMEN’S BENEVOLENT ASSOCIATION, INC. AND TOWN OF ORANGETOWN. Finding that the inquiry presented by a petition for a declaratory ruling was not consistent with the purposes of PERB’s declaratory ruling process, an ALJ declined to issue a ruling and dismissed the petition. The ALJ held that the petition asked PERB to determine not whether a former Town employee was a public employee for purposes of the Act, but whether, under the applicable collective bargaining agreement and Civil Service Law §71, this former employee was still entitled to certain contractual benefits. This exceeds the scope of Section 210 of PERB’s Rules. (ALJ Burritt, DR-126, 12/1/10)

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