Gilmore v. DC37, et. al, 33 OCB 10 (BCB 1984) [Decision No. B-10-84 (ES)] OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING In the Matter of the Improper Practice Petition DECISION NO. B-10-84(ES) -between-DOCKET NO. BCB-707-84 JEANETTE R. GILMORE, Petitioner, -and-DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Respondent. DETERMINATION The petition in this matter was filed on May 16, 1984. Pursuant to Section 7.4 of the Revised Consolidated Rules of the Office of Collective Bargaining ("OCB Rules"), a copy of which is annexed hereto, the undersigned has reviewed the petition and has determined that it does not contain facts sufficient as a matter of law to constitute an improper practice within the meaning of the New York City Collective Bargaining Law. Assuming the truth and accuracy of the allegations of the petition, the fact remains that the petitioner was a provisional employee at the time of her termination on January 24, 1984. The Board of Collective Bargaining has
Decision No. B-10-84(ES) Docket No. BCB-707-84 2. held that a union cannot be expected, nor is it empowered, to create or enlarge the rights of special classes of employees whose rights are delimited by law. 1 Provisional employees are one such class whose employment rights are limited by law. Unlike permanent competitive employees, provisionals are not entitled to charges and a hearing prior to termination of employment. 2 Therefore, in this case, as in a prior one determined by the Board, “... petitioner's impending termination was a matter beyond respondent's control and was not, therefore, an event with respect to which the obligation of fair representation arises." 3 For the reason stated above, the petition herein is dismissed pursuant to Section 7.4 of the OCB Rules. Dated: New York, N.Y. May 29, 1984 William J. Mulry, Esq. Executive Secretary Board of Collective Bargaining 1 Decision Nos. B-13-80; B-16-79. 2 See Civil Service Law §75. 3 Decision No. B-13-82.
REVISED CONSOLIDATED RULES OF THE OFFICE OF COLLECTIVE BARGAINING §7.4 Improper Practices. A petition alleging that a public employer or its agents or a public employee organization or its agents has engaged in or is engaging in an improper practice in violation of Section 1173-4.2 of the statute may be filed with the Board within four (4) months thereof by one (1) or more public employees or any public employee organization acting in their behalf or by a public employer together with a request to the Board for a final determination of the matter and for an appropriate remedial order. Within ten (10) days after a petition alleging improper practice is filed, the Executive Secretary shall review the allegations thereof to determine whether the facts as alleged may constitute an improper practice as set forth in section 1173-4.2 of the statute. If it is determined that the petition, on its face, does not contain facts sufficient as a matter of law to constitute a Violation, or that the alleged, violation occurred more than four (4) months prior to the filing of the charge, it shall be dismissed by the Executive Secretary and copies of such determination shall be served upon the parties by certified mail. if, upon such review, the Executive Secretary shall determine that the petition is not, on its face, untimely or insufficient, notice of the determination shall be served on the parties by certified mail, provided, however, that such determination shall not constitute a bar to the assertion by respondent of defenses or challenges to the petition based upon allegations of untimeliness or insufficiency and supported by probative evidence available to the respondent. Within ten (10) days after receipt of a decision of the Executive Secretary dismissing an improper practice petition as provided in this subdivision, the petitioner may, file with the Board of Collective Bargaining an original and three (3) copies of a statement, in writing setting forth an appeal from the decision together with proof of service thereof upon all other parties. The statement shall set forth the reasons for the appeal. * * * * §7.8 Answer-Service and Filing. Within ten (10) days after service of the petition, or, where the petition contains allegations of improper practice, within ten (10) days of the receipt of notice of finding by the Executive Secretary, pursuant to Rule 7.4, that the petition is not, on its face, untimely or insufficient, respondent shall serve and file its answer upon petitioner and any other party respondent, and shall file the original and three (3) copies thereof, with proof of service, with the Board. Where special circumstances exist that warrant an expedited determination, it shall be within the discretionary authority of the Director to order respondent to serve and file its answer within less than ten (10) days. OTHER SECTIONS OF THE LAW AND RULES MAY BE APPLICABLE. CONSULT THE COMPLETE TEXT.
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