Gaud v. Park Ranger/ Park Enforcement Unit, 39 OCB 60 (BCB 1987) [Decision No. B-60-87 (ES)] OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING - - - - - - - - - - - - - - - - - X In the Matter of the Improper Practice Proceeding -between-LOUIE GAUD, DECISION NO. B-60-87(ES) Petitioner, Docket No. BCB-1010-87 -and-NEW YORK CITY PARK RANGER/ PARK ENFORCEMENT UNIT, Respondent. - - - - - - - - - - - - - - - - X DETERMINATION OF EXECUTIVE SECRETARY On November 19, 1987, Louie Gaud ("petitioner"), formerly an Urban Park Ranger/PEP Officer with the New York City Department of Parks and Recreation ("the Department" or "respondent"), filed a verified improper practice petition in which he alleges that respondent improperly terminated him for a minor violation of Department rules and regulations and denied him a due process hearing. 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, I have reviewed this petition and have determined that it does not allege facts sufficient as a matter of law to constitute an improper practice within the meaning of the New York City
Decision No. B-60-87(ES) 2 Docket No. BCB-1010-87 Collective Bargaining Law ("NYCCBL"). The petition fails to allege that respondent has committed any acts in violation of Section 1173-4.2a of the NYCCBL. 1 Moreover, even assuming the truth and accuracy of the allegations of the petition, it does not appear that petitioner was terminated for any of the proscribed reasons set forth in the NYCCBL. It should be noted that the NYCCBL does not provide a remedy for every perceived wrong or inequity. It does provide procedures designed to safeguard the rights of public employees that are created by the statute, i.e., the right to organize, to form, join and assist public employee organizations, to 1 Section 1173-4.2a of the NYCCBL provides: a. Improper public employer practices. It shall be an improper practice for a public employer or its agents: (1) to interfere with, restrain or coerce public employees in the exercise of their rights granted in section 1173-4.1 of this chapter; (2) to dominate or interfere with the formation or administration of any public employee organization; (3) to discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any public employee organization; (4) to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees.
Decision No. B-60-87(ES) 3 Docket No. BCB-1010-87 bargain collectively through certified public employee organizations; and the right to refrain from such activities. Since the instant petition does not allege that respondent's actions were intended to, or did, affect any of these protected rights, it must be dismissed. I note additionally that the petitioner was a provisional employee at the time of his termination on July 23, 1987. Provisionals are one of several classes of employee whose rights are limited by law. Unlike permanent competitive employees, provisionals are not entitled to charges and a hearing prior to termination of their employment. 2 DATED: New York, N.Y. December 28, 1987 William J. Mulry Executive Secretary Board of Collective Bargaining 2 New York Civil Service Law ยง75.
REVISED CONSOLIDATED RULES OF THE OFFICE OF COLLECTIVE BARGAINING ยง7.4 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. * * * * ยง7.8Answer-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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