McAllen, Taylor v. Emergency Medical Services, 33 OCB 12 (BCB 1984) [Decision No. B-12-84 (IP)] OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING In the Matter of RICHARD McALLAN and DECISION NO. B-12-84 BARBARA TAYLOR, DOCKET NO. BCB-602-82 Petitioners, -and-EMERGENCY MEDICAL SERVICES, DIVISION OF NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent. INTERIM DECISION AND ORDER Petitioners Richard McAllan and Barbara Taylor (hereinafter "petitioners") filed a verified improper practice petition in which they charged that the Emergency Medical Service, a division of the New York City Health and Hospitals Corporation (hereinafter "EMS". "HHC" or "Respondents") committed improper practices within the meaning of §1173-4.2(a) of the New York City Collective Bargaining Law (hereinafter "NYCCBL") by engaging in certain specified acts of alleged harassment and discrimination directed against the petitioners. The respondents, by their attorney, did not answer the petition, but instead moved to dismiss on the ground that the petition fails to allege facts sufficient to make out a cause of action under §1173-4.2(a) of the NYCCBL. The petitioners submitted a
Decision No. B-12-84 Docket No. BCB-602-82 2. reply to the motion to dismiss, together with a "Notice of Motion in Opposition" which is, in effect, a cross-motion for summary judgment. The respondents' attorney filed a letter in response to the petitioners' request for summary judgment. Background The petitioners are employed by EMS as Paramedics. Petitioner McAllan has served as an officer of Local 2507, District Council 37, and was a candidate for other union offices. McAllan is also a petitioner in several improper practice proceedings currently pending before the office of Collective Bargaining. 1 A common element of most of the pending cases is the petitioner's assertion that EMS has harassed and discriminated against him in order to interfere with hit candidacy for union office and in retaliation for his handling of grievance and safety matters and his filing of improper practice charges. Petitioner Taylor is a past candidate for union office, and is alleged to be "... a known and active supporter Of McAllan and his union activities." Ms. Taylor has testified as a witness for the petitioners at hearings held on pending improper practice charges. 2 1 Docket Nos. BCB-499-81, BCB-504-81, BCB-517-81, BCB-602-82, BCB-649-83, BCB-669-83. 2 Docket Nos. BCB-499-81, BCB-501-81.
Decision No. B-12-84 Docket No. BCB-602-82 3. The petitioners allege that on the midnight shift of March 21-22, 1982, while their ambulance was on "available" status after completing an emergency run, they stopped to obtain coffee. During this stop, two officers 3 of the EMS Inspectional Service drove up to the ambulance. The officers informed petitioners that Taylor was "out of uniform" because she was not wearing an officially approved jacket. The petitioners allege, however, that the jacket worn, while not officially approved, had been informally authorized by the EMS Uniform Committee, and was the appropriate color with a "City of New York EMS Paramedic" logo printed on the back. Nevertheless, the Inspectional Service officers issued a "Notice of Violation" for the uniform infraction. The petitioners further allege that shortly thereafter, during that same night, these two officers were present at a roll call at Metropolitan Hospital at which another ambulance corpsman reported for duty with an appropriately colored but non-approved overcoat. The officers took no action against the corpsman, even though he appeared to have committed the same infraction for which petitioner Taylor was charged by the same officers on the same night. 3 These officers were identified by petitioners as Captain Cervo and Lieutenant Ryan.
Decision No. B-12-84 Docket No. BCB-602-82 4. Positions of the Parties Petitioners' Position The petitioners claim that they were subjected to unusual and improper surveillance by the management of EMS in order to "get something" on them and to coerce them in the exercise of their rights under the NYCCBL. Petitioners note that the Inspectional Service officers refused to state who had told them that the two petitioners were working together that shift, 4 and also refused to disclose their itinerary for that night. The petitioners further contend that the surveillance, inspection, and subsequent issuance of a "Notice of Violation" constitutes discrimination and harassment for the purpose of discouraging and interfering with their union activity and in retaliation for filing or supporting improper practice petitions now pending before the Board of Collective Bargaining. In their reply papers, petitioners argue that the respondents have failed to deny the material allegations of the petition. For this additional reason, the petitioners request that the motion to dismiss be denied and that summary judgment be granted to the petitioners. 4 Petitioner Taylor was working on authorized overtime with petitioner McAllan because of the absence of McAllan's regularly scheduled partner.
Decision No. B-12-84 Docket No. BCB-602-82 5. Respondents' Position The respondents observe that the petitioners do not deny that the jacket worn by petitioner Taylor on the night in question was not officially approved for use as part of the EMS uniform. The allegation that the jacket was informally approved by the Uniform Committee is of no consequence, since the Committee merely makes recommendations to EMS management and is not, itself, authorized to approve uniform modifications. Therefore, the respondents contend that it was an appropriate exercise of management prerogative to advise the petitioner of her uniform infraction and to take corrective action using established HHC employee counseling procedures. The respondents allege that the EMS Inspectional Service Unit acts to carry out and insure adherence to management standards and regulations, including regulations governing employee uniforms. The actions of officers of this Unit in inspecting the petitioners and in issuing a Notice of Violation to petitioner Taylor, were consistent with the managerial authority of the respondents, as guaranteed in NYCCBL §1173-4.3(b). The respondents submit that the petition fails to state how the legitimate management actions challenged in this proceeding are violative of the provisions of
Decision No. B-12-84 Docket No. BCB-602-82 6. §1173-4.2 (a) of the NYCCBL. On this basis, the respondents request that the petition be dismissed without the need for any further proceedings. Discussion Initially, we observe that the petitioners' request for summary judgment is based upon a misconception of the requirements of pleading on a motion to dismiss. The petitioners emphasize and rely upon the respondents' failure to deny the material factual allegations of the petition. However, as we have previously held, 5 on a motion to dismiss the factual allegations of the petition are deemed to be true; in fact, it would be improper for a respondent to dispute the factual allegations on such a motion. The only question raised on a motion to dismiss is whether, taking the facts as alleged by the petitioner, a cause of action has been stated. If a finding is made that the petition, on its face, does state a cause of action, then the respondent must be permitted to submit an answer, which may include denials of the factual allegations of the petition as well as the assertion of additional and/or different facts. Therefore, we find that the petitioner's request for summary judgment is unwarranted and must be denied. 5 See, e.g., Decision No. B-25-81.
Decision No. B-12-84 Docket No. BCB-602-82 7. Turning to the merits of the motion to dismiss and the sufficiency of the petition, we are convinced that the motion to dismiss should be granted in part. The petitioners' allegations that what they characterize as "surveillance" by officers of the Inspectional Service Unit was "unusual" and "improper" is wholly conclusory. The petition fails to allege how the inspection which was made was a departure from ordinary management procedures. In the absence of specific facts to support the petitioners' conclusions, we hold that the inspection was within management's right to supervise and direct its employees. 6 With respect to the "Notice of Violation" and counselling which resulted from the inspection, however, we find that the petition alleges sufficient facts to state a cause of action of discrimination for the purpose of discouraging union activity. Specifically, the petition alleges that petitioner Taylor was served with a "Notice of Violation" for an infraction of uniform regulations while another employee who apparently violated the same regulation that same night in the presence of the same supervisory officers was not charged with any infraction. This alleged disparate treatment by management, together with the petitioner's background as a union activist, and as a witness against 6 NYCCBL §1173-4.3(b).
Decision No. B-12-84 Docket No. BCB-602-82 8. management in an improper practice proceeding, creates a sufficient inference of discrimination for prohibited purposes as to require that the respondents come forward with an answer on the merits in explanation of their actions. The respondents' contention that the disciplinary action taken was justified by a clear violation of uniform regulations does not address the issue of the alleged disparate treatment, nor does it resolve the question of management's motive in taking such action. Although the right to discipline employees is an unquestioned management prerogative, if discipline is used for discriminatory or coercive purposes, it may constitute an improper practice within the meaning of the NYCCBL. 7 Accordingly, we shall deny the motion to dismiss insofar as it concerns the issuance of a Notice of Violation and resultant counseling to petitioner Taylor, and we shall direct the respondents to submit an answer on these issues. We will, grant the motion to dismiss insofar as it concerns the alleged "surveillance" and inspection. Since the Notice of Violation and counseling do not concern petitioner McAllan directly, we shall dismiss the petition as to him in its entirety, and shall delete his name from the caption of this proceeding. 7 Decision No. B-25-81.
Decision No. B-12-84 Docket No. BCB-602-82 9. 0 R D E R Pursuant to the powers vested in the Board of Collective Bargaining by the New York City Collective Bargaining Law, it is hereby ORDERED, that the motion to dismiss be, and the same hereby is, granted, only to the extent that it concerns the petition's allegations of surveillance and inspection; and it is further ORDERED; that the motion to dismiss be, and the same hereby is, denied, to the extent that it concerns the petition's allegations of the issuance of a Notice of Violation and resultant counseling; and it is further ORDERED, that the petition be, and the same hereby is, dismissed in its entirety as to petitioner McAllan, whose name shall be deleted from the caption of this proceeding; and it is further ORDERED, that the respondents serve and file their answer to the petitioner within 10 days of receipt of this Decision and order. DATED: New York, N.Y. June 20, 1984 ARVID ANDERSON CHAIRMAN MILTON FRIEDMAN MEMBER JOHN D. FEERICK MEMBER DEAN L. SILVERBERG MEMBER EDWARD F. GRAY MEMBER
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