Improper practice determinations

Improper practice determinations

Selected determinations by the Public Employment Relations Board

Summarized below are selected rulings by PERB administrative law judges concerning improper practice charges:

1. BREACH OF CONTRACT: Allegations that an employee organization has refused to schedule disciplinary hearings in accordance with the time limits set out in the collective bargaining agreement did not constitute an improper practice within the meaning of the Taylor Law. PERB does not have jurisdiction to resolve alleged breaches or violations of the terms of a collective bargaining agreement. PERB does have jurisdiction, however, where it is shown that the "at-issue contractual provision has been totally abandoned." [Matter of the Westchester County Correction Officers Benevolent Association, 30 PERB 4502; Monte Klein, Director of Employment Practices and Representation]

2. BARGAINING UNIT WORK: A school district did not commit an improper practice by unilaterally entering into an agreement with a BOCES which resulted in BOCES supplying a remedial mathematics teacher notwithstanding the fact that teaching remedial mathematics was "exclusive bargaining unit work." Citing Webster Central School District v PERB, 75 NY2d 619, PERB's administrative law judge held that "the decision of a school board to contract for a BOCES instructional program" is not a mandatory subject of collective bargaining. [Matter of Odessa-Montour Central School District, 30 PERB 4505; Administrative Law Judge J. Albert Barsamian]

3. INTEREST ARBITRATION: A party may not convert a nonmandatory subject of collective bargaining under the Taylor into a mandatory subject of negotiations by submitting it to compulsory interest arbitration. It was an improper practice for the employer submit its contract  demands seeking to eliminate contract provisions concerning minimum staffing and call-back pay to compulsory interest arbitration. Matter of Glens Falls Firefighters Union, 30 PERB 4506, Kenneth J. Toomey, Assistant Director of Public Employment Practices and Representation.

4. TRANSFER OF SERVICES: It was an improper practice for a school district to unilaterally transfer its printing services then being exclusively performed by bargaining unit employees to a BOCES. Although the unilateral transfers of services to a BOCES is permitted, such transfers are limited to educational services and "services closely related thereto." PERB's administrative law judge ruled that the Webster ruling [75 NY2d 619 and §1950 of the Education Law cannot be read to encompass printing functions as "educational services and services closely related thereto ... by whatever name." Matter of Vestal Employee Association, NEA/NY, 30 PERB 4515, Administrative Law Judge J. Albert Barsamian.

5. EXPIRATION OF AGREEMENT: The employer violated the Taylor Law by refusing to continue paying the uniform allowance contained  in the parties expired collective bargaining agreement. Inclusion of the term "of each year of the agreement" did not serve to limit the payment of the benefit only for the life of the agreement absent a "sunset provision" demonstrating that the parties intended to limit payment of the benefit to the life of the agreement. [Matter of the Division of State Police, 30 PERB 4515, Administrative Law Judge Susan A. Comenzo]

Cofsky v Sinnott

Freedom of information

McCray v Lennon, NYS Supreme Court

Louis McCray, currently serving twenty years to life at Green Haven Correctional Facility, filed a Freedom of Information [FOIL] request seeking agency records that would identify the employment status, titles, and date of termination of a certain employee of a police department. When the Department refused to provide the information on the grounds that McCray had not properly identify the information he was seeking, McCray sued.

Citing Bahlman v Brier, 119 Misc2d 110, the Court ruled that the disclosure of such employee information would be an invasion of privacy within the meaning of §87.2 of the Public Officers Law and dismissed McCray complaint.

The Court said that there was a need to balance the public's right to know with the right of innocent individuals to be protected from unwarranted intrusions in their personal lives. Accordingly, the Court concluded, the Department's refusal to release information demanded, even if the request had been properly made, was appropriate because of the nature of the requested information.

Fire marshals and police officers

Fire marshals and police officers

Rossi v NYCMTA, NYS Supreme Court

Are New York City fire marshals police officers? The answer to this question proved to be the key to resolving Rossi v the New York City Municipal Transit Authority [NYCMTA]. City fire marshals Thomas Rossi and Gregory A. Papa complained that NYCMTA failed to include fire marshals in its police ride program as required by §1266(14) of the Public Authorities Law.

§1266.14 requires NYCMTA, in consultation with the Long Island Rail Road, to "establish and implement a "no fare program" on the Long Island Rail Road for police officers employed by the City of New York, the County of Nassau, Nassau County villages, the Division of State Police and a number of other public employers. The goal of the program was to increase protection and improve safety for its commuters by encouraging a "police presence" on commuter trains.

Claiming fire marshals have police officer status, Papa challenged the rejection of his application for a monthly transit pass under the program, citing as authority for his position Criminal Procedure Law, §1.20[34](i) and the Administrative Code of the City of New York §15-117. Two law suits were filed, one by Rossi and a second by Papa, when NYCMTA's refused to include the City's 238 fire marshals in the program. The two were later consolidated into a single action.

In defending its decision, NYCMTA argued  that the program was only available "to active members in good standing of the police departments specifically referenced in the [§1266(14) of the Public Authorities Law] ... [and] does not apply to individuals not ordinarily thought of as police officers, such as fire marshals, district attorney investigators and enforcement agents of the State's Department of Taxation and Finance."

The Court, disagreed, ruling that NYCMTA's implementation of the police pass program constituted an irrational construction of the §1266(14).

Noting that the fire marshals carried firearms and had the same power of arrest as members of the New York City Police Department, the Court directed NYCMTA to include all police officers employed by the City of New York, the chief and deputy fire marshals, the supervising fire marshal and the fire marshals of the bureau of fire investigation in the program.

The Court also commented that "[a]ll police officers in the State of New York derive their official status from the provisions of §1.20(34) of the Criminal Procedure Law."

Comparing administrative positions

Comparing administrative positions

Decisions of the Commissioner of Education, Decision No. 13733

In 1995 the Windham-Ashland-Jewett Central School District's budget was defeated. In response, the superintendent recommended that one position of building principal, together with the position of curriculum coordinator, be abolished and replaced by a new position of assistant superintendent. As a result, the building principal position held by Deborah Elmendorf was abolished effective June 30, 1995. She was not interviewed for the assistant superintendent position and Janette Bain was appointed to the title effective August 17, 1995.

Elmendorf appealed to the Commissioner of Education, contending that under §2510(1) of the Education Law she was entitled to the appointment because she was the "senior excessed administrator" in the administrative tenure area. In rebuttal, the District argued that the position of assistant superintendent is not similar to the position of building principal and thus §2510(1) was not relevant.

NOTE: §2510(1) essentially provides that if an office or position is abolished and another office or position performing similar duties is created, the incumbent of the abolished position "shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled."

Although both titles were in the administrative tenure area, the Commissioner pointed out that Elmendorf would be entitled to appointment in a newly created position only if the duties of the new position were similar to those of her former position. The test applied in such situations when classroom teachers are involved is whether more than 50% of the duties to be performed by the incumbent of the new position are similar to those of his or her former positions. The Commissioner said that this comparison is more difficult when administrative positions are involved because they "do not lend themselves to the same analysis used under §2510 when teaching positions are concerned."

In any event, Elmendorf had the burden of proving that a majority of the duties of the new position are similar to those of her former position. To succeed, Elmendorf had to demonstrate that the degree of comparable skill and experience required to carry out the duties of both positions were similar. The Commissioner rejected Elmendorf's attempt to do this by allocating percentages of duties and creating a mathematical formula to calculate the similarities of duties between the two positions.

Instead the Commissioner compared the job descriptions of the two positions, concluding that "although there are several areas ... that were transferred to the new title ... the new position includes several functions which differ significantly from those of a building principal." Dismissing Elmendorf's appeal, the Commissioner also found it significant that the building principal position only required School Administrator and Supervisor certification while the assistant superintendent required School District Administrator certification.

As to any claim to a "due process hearing" prior to Elmendorf's termination, the Commissioner said that under the circumstances the District had an obligation to provide "... a due process hearing [to consider] the alleged similarity of the duties of the two positions," but the District's violation of Elmendorf's due process rights alone does not mean that she is entitled to the position.

Annulment of a disciplinary termination

Annulment of a disciplinary termination

Suarez v Egginton, 236 A.D.2d 547

Washington M. Suarez was terminated from his position after being found guilty of misconduct. This finding was based entirely on Suarez being convicted of criminal charges based on this misconduct. Suarez asked the Appellate Division to annul the administrative determination dismissing him "upon his assumption that the judgment in the criminal action would be reversed." As the conviction was upheld, the Appellate Division said that "the sole basis for annulment disappeared."

The Appellate Division noted that the disciplinary determination was based on substantial evidence. Even if the criminal conviction were reversed because the misconduct was proved "beyond a reasonable doubt," it would seem that the administrative determination based on substantial evidence would survive. The procedures underlying §30.1.e of the Public Officers Law appears to support such a conclusion.