PERB determinations

PERB determinations

Ruling by the Public Employment Relations Board

Community of interest: Individual, although paid at a supervisory pay level and substituted for the supervisor when the supervisor was absent, was determined to share  a community of interest with unit employees and thus could not be excluded from the negotiating unit without evidence that the individual performed supervisory duties such as assigning work and overtime to employees, evaluating employees, approving leave requests, disciplining workers, or other supervisory duties. Local 282 and Regional Transit Service, Inc., 35 PERB 3022

Duty of fair representation: Unit member's dissatisfaction with his or her representation by the union in a grievance that resulted in a negotiated settlement rather than proceeding to arbitration, did not, without more, establish a prima facie case that the union breached its duty of fair representation as a member's "disagreement with the tactics utilized or his or her dissatisfaction with the quality and extent of representation" does not constitute a breach of the union's duty of fair  representation. Bruns and Council 82, 35 PERB 2023

Lack of jurisdiction: PERB declined to assume jurisdiction to consider an individual's improper practice charge alleging the employer violated Sections 209-a.1(a) and 209-a.1(c) of the Civil Service Law because the individual was not a public employee within the meaning of the Taylor Law, observing that the individual was not on a state payroll and had neither paid union dues nor paid an agency fee to the collective bargaining unit's representative. Nagy and SUNY at Buffalo, 35 PERB 3025.

Similarly, in Arce and NYC Board of Education, 35 PERB 4576, a PERB Administrative Law Judge determined that SEIU Local 74 did not violate its duty of fair representation by failing to process a grievance filed by an individual independently hired by, and who worked directly for, a public school custodian because the individual was not a public employee as defined by the Taylor Law and thus he was not in the negotiating unit.

Negotiating a new practice: PERB rejected the union's argument that its burden of proof that the employer failed to negotiate an alleged change in a personnel practice is satisfied if it shows that the personnel practice is, itself, a mandatory subject of collective negotiations, ruling that the charging party must demonstrate 8-the existence of an "old practice" by showing that it was unequivocal, had been in existence for a significant period of time and that unit employees could reasonably expect the practice to continue. PBA-NYS Troopers and Division of State Police, 35 PERB 3024

Personal interests not protected by Taylor Law: An employee making complaints unrelated to any specific provision in the collective bargaining agreement and that essentially concern matters of private, personal interest, has not established any basis for prosecuting a claim that he or she was subjected to adverse personnel action because of his or her engaging in a protected activity within the meaning of the Taylor Law. Westhampton Beach Police PBA and Village of Westhampton Beach, 35 PERB 3026

Union animus: PERB rejected its Administrative Law Judge's conclusion that the Town of North Hempstead was guilty of union animus based on a finding that "but for" the union's president using "union business" release time, he would not have been involuntarily transferred to another unit because the Town's explanation for the transfer -- the need to reorganize a department -- was "largely unrebutted by the Union" and thus there was no basis to hold that the transfer was the result of improper motivation on the part of the Town. CSEA Local 1000 and Town of North Hempstead, 35 PERB 3027.