Archived Decision Summaries – January 1, 2010 through December 31, 2010

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)

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)

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)

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)