Labor & Employment Law

Summary of recent Improper Practices decisions by PERB Administrative Law Judges

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

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

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

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

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

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

BERNICE MALCOLM AND HONEOYE FALLS-LIMA CENTRAL SCHOOL DISTRICT AND HONEOYE FALLS-LIMA EDUCATION ASSOCIATION, NYSUT. The Director dismissed a charge alleging that the union breached its duty of fair representation because the operative act occurred more than four months prior to the filing of the charge and because individuals lack standing to allege breaches of the other subdivisions of the Act that were allegedly violated. (Director Klein, U-28122, 3/25/08)

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

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

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

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

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

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

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

JILL M. PENC AND STATE OF NEW YORK (DEPARTMENT OF TAXATION AND FINANCE) AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO. The Director dismissed the charge as amended as against both respondents inasmuch as it appeared untimely, was devoid of facts to arguably establish a violation and was in some respects beyond PERB's jurisdiction. (Director Klein, U-28228, 4/16/08)
TOWN OF RIVERHEAD AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, RIVERHEAD TOWN BARGAINING UNIT, SUFFOLK LOCAL 852. An ALJ dismissed a charge alleging that the Town violated the Act by transferring exclusive bargaining unit work to nonunit employees. The ALJ held that some of the work had not been performed exclusively and that the evidence did not demonstrate that there had been a change in the duties performed by nonunit personnel. The ALJ also held that, as to other work that had been transferred, there had been a change in the qualifications of the employees doing that work. Applying the balancing test, the ALJ held that the Town was privileged to transfer the work in issue. (ALJ Maier, U-26552, 4/23/08)

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

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

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

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

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

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

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

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

AMALGAMATED TRANSIT UNION LOCAL NO. 1342 AND NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC. A charge alleging that Niagara Frontier Transit Metro System, Inc. violated the Act when it hired a private contractor to replace wash racks in the rail station, work alleged to be exclusive unit work, was deferred. A grievance had also been filed on the same facts alleging a violation of the provisions of the parties' collectively negotiated agreement; therefore the charge was deferred pursuant to the Board's decision in Herkimer County BOCES. (ALJ Fitzgerald, U-28143, 5/29/08)
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, WESTCHESTER COUNTY LOCAL 860, UNIT 9200 AND COUNTY OF WESTCHESTER. An ALJ conditionally dismissed a charge alleging that the County of Westchester violated the Act when it issued an Executive Order that barred certain employees from holding more than one county job, required certain employees to inform their superiors they were engaged in outside employment and required employees to complete a form relating to any outside employment, deferring to the parties' contractual grievance procedures. (ALJ Carlson, U-27489, 5/28/08)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, CATTARAUGUS COUNTY LOCAL 805, CITY OF OLEAN UNIT 6202 ANDCITY OF OLEAN. The charge was deferred to the parties' contractual grievance procedure as CSEA has filed a grievance on the same facts as pled in the charge. (ALJ Doerr, U-28382, 7/31/08).

AMALGAMATED TRANSIT UNION LOCAL 1342 AND NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC. The ALJ found that the employer satisfied its duty to bargain regarding its decision to send medical reports to the Workers' Compensation Board. The parties' agreement allows the employer's physician to periodically examine employees on compensable leave. That the results of those examinations are sent to the Compensation Board was found to be a reasonably foreseeable consequence. The ALJ also found that employee privacy interests in the information transferred were not compelling as the Workers' Compensation law provides comprehensive protection of personal medical records. The employer's transfer of medical records of employees on compensable leave to the Workers' Compensation Board was, therefore, found to be nonmandatory. (ALJ Doerr, U-27133, 8/7/08)
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 66, LOCAL 1635 AND CITY OF ROCHESTER. A charge alleging, as amended, violations of §209a.1(a) and (c) of the Act was dismissed upon a failure to establish animus as to the several acts of the employer the union complained of. The proof offered was conclusory and based on opinion. The allegation that the employer violated §209a.1(d) of the Act was also dismissed. An employer is under no obligation to provide space for a union sponsored event. While the proof at hearing established additional facts not pled, there was no motion to conform the pleadings to the proof and those additional facts were not considered. (ALJ Doerr, U-27420, 8/7/08)

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

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

Full post as published by New York Public Personnel Law on December 04, 2008 (boomark / email).