Hirsch v. HRA, Hall, Innis, Wells, 45 OCB 8 (BCB 1990) [Decision No. B-8-90 (ES)] OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING -----------------------------------X In the Matter of the Improper Practice Proceeding -between-HENRY HIRSCH, DECISION NO. B-8-90(ES) Petitioner, DOCKET NO. BCB-1252-90 -and-HUMAN RESOURCES ADMINISTRATION, JOCELYN V. HALL, BRENDA INNIS, and ETHEL WELLS, Respondents. -----------------------------------X DETERMINATION OF EXECUTIVE SECRETARY On February 6, 1990, the Office of Collective Bargaining ("OCB") received from Henry Hirsch ("petitioner"), a verified improper practice petition dated February 1, 1990 which it did not accept for filing because petitioner failed to submit proof of service of the petition on Jocelyn V. Hall, Director, Queens Field Office, Human Resources Administration ("HRA"), Brenda Innis, Deputy Director, and Ethel Wells, CPM ("respondents"), as required by Section 7.6 of the Revised Consolidated Rules of the Office of Collective Bargaining ("OCB Rules"). On February 14, 1990, the petition was resubmitted, together with proof of service on the HRA, and was accepted for filing at that time. The petitioner states that on October 29, 1989, he was demoted from Provisional Supervisor II to Provisional Supervisor I based on an alleged improper evaluation dated July 21, 1989. Petitioner claims that the
Decision No. B-8-90(ES) 2 Docket No. BCB-1252-90 evaluation, which contained "false allegations" to justify an overall rating of "conditional," led to his improper demotion in October 1989. In support of this argument, petitioner submits copies of documentation that he filed in rebuttal to the evaluation. Petitioner also submits a copy of his 1988 evaluation wherein he received an overall rating of "superior." Pursuant to Section 7.4 of the OCB Rules, a copy of which is annexed hereto, the undersigned has reviewed the petition and has determined that the improper practice claim asserted therein must be dismissed because it does not allege facts sufficient as a matter of law to constitute an improper practice within the meaning of the New York City Collective Bargaining Law ("NYCCBL"). Notwithstanding the evidence submitted in support of petitioner's contention that the 1989 evaluation and subsequent demotion allegedly were improper, I find that the petition does not allege facts tending to show that the respondent HRA or its agents committed any acts specified in Section 12-306a of the NYCCBL. 1 Even assuming the truth and accuracy of the allegations 1 Section 12-306a of the NYCCBL provides: 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 12-305 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; (continued...)
Decision No. B-8-90(ES) 3 Docket No. BCB-1252-90 of the petition, it does not appear that the respondents implemented the personnel actions complained of for any of the proscribed reasons set forth in the NYCCBL. There is no allegation that the respondents' actions were connected in any way with the petitioner's right to form, assist or participate in the activities of a public employee organization; or to refrain therefrom. For example, there is no suggestion of retaliation for engaging in protected union activity. The NYCCBL does not provide a remedy for every perceived wrong or inequity. Its provisions and procedures are designed to safeguard the rights of public employees set forth therein, i.e., the right bargain collectively through certified public employee organizations; the right to organize, to form, join and assist public employee organizations; and the right to refrain from such activities. The petition herein does not allege that the employer's actions were intended to effect the exercise of any of these rights. Accordingly, I find that no improper public employer practice has been stated. The petition, therefore, is dismissed pursuant to Section 7.4 of the OCB Rules. Such dismissal is, of course, without prejudice to any rights the petitioner may have in any other forum. DATED: New York, New York March 14, 1990 1 (...continued) (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-8-90(ES) 4 Docket No. BCB-1252-90 _____________________________ LOREN KRAUSE LUZMORE Executive Secretary Board of Collective Bargaining
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