BOARD OF COLLECTIVE BARGAINING

Feder, 5 OCB2d 14 (BCB 2012) (IP) (Docket No. BCB-2842-10)

Summary of Decision: Petitioner alleged that NYCHA violated NYCCBL § 12-306(a)(1), (2) and (3) when it denied his requests for paid release time, issued him a counseling memo for being absent without leave, denied his grievances, and denied his transfer requests because of his union activity. NYCHA claimed that certain issues raised by Petitioner are barred by the statute of limitations. To the extent any of Petitioner’s claims are timely, NYCHA asserted that its actions were based not on anti-union animus but on its internal rules concerning use of leave and paid union release time, and were within its managerial rights. The Board held that certain claims were untimely filed. On the remaining claims, the Board found that NYCHA’s actions were not motivated by Petitioner’s union activity. Accordingly, the petition was dismissed. (Official decision follows.) ____________________________________________________________

OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING

In the Matter of the Improper Practice Proceeding -between- MITCHELL FEDER, Petitioner, -and- THE NEW YORK CITY HOUSING AUTHORITY, Respondent. ____________________________________________________________ DECISION AND ORDER On March 10, 2010, Mitchell Feder (“Petitioner”), a member of District Council 37 (“DC 37”), Local 375 (“Union” or “Local 375”), filed a verified improper practice petition pro se against the New York City Housing Authority (“NYCHA”) alleging that NYCHA violated § 12-306(a)(1), (2) and (3) of the New York City Collective Bargaining

5 OCB 2d 14 (BCB 2012)

Law (City of New York Administrative Code, Title 12, Chapter 3) (“NYCCBL”). Petitioner claims that NYCHA denied his requests for paid union release time, issued him a counseling memo for being absent without leave, denied his grievances, and denied his transfer requests, all because of his union activity. NYCHA claims that certain issues raised by Petitioner are barred by the statute of limitations. To the extent any claims are timely filed, NYCHA asserts that its actions were not based on Petitioner’s union activity. Instead, in all instances it acted consistent with its rules concerning use of leave and paid union release time and within its rights to transfer and discipline its employees. The Board holds that certain claims are untimely filed. With respect to the timely allegations, the Board finds that the facts alleged are not sufficient to state a claim that NYCHA’s actions were motivated by Petitioner’s union activity. Accordingly, the petition is dismissed. BACKGROUND Petitioner is an Associate Housing Development Specialist and is a member of 1 Local 375. He has worked at NYCHA since 1992. As we have previously noted: Petitioner has been an active Union member during his employment with NYCHA. Since 1997, Petitioner has served in various Union positions, including delegate for Local 375’s Chapter 25 (“Chapter 25”), Chapter 25 Treasurer, and Chapter 25 President. Since 2002, and

1 Petitioner has appeared before the Board on five prior occasions: Feder, 1 OCB2d 23 (BCB 2008) (“Feder I”); Feder, 1 OCB2d 27 (BCB 2008) (“Feder II”); Feder, 1 OCB2d 41 (BCB 2008) (“Feder III”); Feder, 4 OCB2d 46 (BCB 2011) (“Feder IV”); and Feder, 4 OCB2d 61 (BCB 2011) (“Feder V”). Currently, he is also the subject of an improper practice petition filed by DC 37. In the petition, docketed as BCB-2939-11, DC 37 alleges that NYCHA discriminated against Petitioner in violation of NYCCBL § 12-306(a)(1) and (3) by issuing him a counseling memo in retaliation for sending emails to Union members during work hours.

2

5 OCB 2d 14 (BCB 2012)

during the relevant time period, Petitioner served as Chapter 25 President. In this position, Petitioner filed grievances, represented employees at Step I hearings, responded to members’ questions, organized and attended monthly Chapter 25 meetings, and disseminated information to the members.

2 Feder V, at 3; see also Feder IV, at 4. From February 2007 through July 2011, Petitioner was assigned to NYCHA’s Office of Business and Revenue Development (“OBRD”). In July 2011, Petitioner was transferred to NYCHA’s Department for Development (“DFD”). Procedural History NYCHA filed its answer on May 17, 2010, and Petitioner filed a reply on July 13, 2010. After filing his reply, Petitioner requested that a hearing be conducted to afford him, among other things, an opportunity to submit additional evidence. The Trial Examiner granted Petitioner the opportunity to supplement his pleadings with additional evidence in support of his claims and gave NYCHA the opportunity to respond to Petitioner’s supplemental submission. Petitioner’s supplemental pleading was received on December 27, 2010 (“Petitioner’s Supp. Submission”), as requested. Without seeking permission to file additional pleadings, Petitioner then filed an additional submission, entitled “Addendum to the Supplemental Submission,” on January 18, 2011. On January 20, 2011, the Trial Examiner determined that Petitioner’s January 18, 2011 submission would be made part of the record and extended NYCHA’s time to respond. Petitioner was advised that no additional unsolicited submissions would be accepted in this matter. On January 31, 2011, again without permission from the Office of Collective 2 Petitioner’s term as Chapter 25 President ended sometime between February 2010 and June 2011.

3

5 OCB 2d 14 (BCB 2012)

Bargaining (“OCB”), Petitioner submitted another “Addendum/Amendment” to his reply. On February 1, 2011, Petitioner was advised that his January 31, 2011 filing was not authorized by § 1-07(c) of the Rules of the Office of Collective Bargaining (Rules of the City of New York, Title 61, Chapter 1) (“OCB Rules”) or by the Trial Examiner and would not be made part of the record. Petitioner was further advised that he had been given ample opportunity to present documentary evidence and legal arguments in support of his claims and that no further pleadings would be admitted or considered. NYCHA filed its response to Petitioner’s Supp. Submission and the Addendum to the Supp. Submission on February 14, 2011. On February 18, 2011, Petitioner submitted a “Rebuttal to NYCHA’s Response.” On February 20, 2011, consistent with prior notice, Petitioner was advised that his February 18, 2011 filing was not authorized by OCB Rules or the Trial Examiner and, therefore, would also not be made part of the record. On September 8, 2011, a conference was held by the Trial Examiner, at which time the parties indicated that Petitioner had received a transfer from the OBRD to the DFD. The Trial Examiner requested that the parties simultaneously address the impact of the transfer on Petitioner’s claim that NYCHA failed to grant his earlier transfer requests. Both parties addressed this issue in submissions received on January 6, 2012. On January 12, 2012, without permission, Petitioner submitted a “supplemental and rebuttal brief” to NYCHA’s January 6, 2012 filing. On January 12, 2012, Petitioner was advised that his January 12, 2012 filing was not authorized by OCB Rules or the Trial Examiner and would not be made part of the record. Petitioner’s Improper Practice Claims In the instant matter, Petitioner alleges that various improper acts by NYCHA

4

5 OCB 2d 14 (BCB 2012)

were taken because he is a union official or because he has engaged in union activity. Specifically, Petitioner alleges that NYCHA denied his requests for paid union release time, issued him a counseling memo for being absent without leave, and denied his grievances and transfer requests. Unless noted, the following facts relating to these claims are not disputed. Transfer Requests On March 27, 2009, Petitioner requested a transfer from OBRD to a “suitable assignment.” (Pet. Ex. 8) This request was made in writing to the Chairman of NYCHA but was not in response to any particular departmental vacancy. Instead, Petitioner explained that he was requesting the transfer because his current assignment was a “stressful and hostile work environment” that caused him to “become ill, lose sleep, lose my appetite and experience dizziness.” (Id.) Petitioner’s request explained in detail examples of the harassment Petitioner alleged he had experienced, including having 3 disciplinary charges filed against him in 2008. NYCHA did not respond to Petitioner’s request. Petitioner alleges that, since 2004, at least two Housing Development Specialists and one Associate Housing Development Specialist were transferred to the DFD. In addition, the record reflects that, in July 2009, NYCHA posted vacancies for two

3 Petitioner stated in his March 2009 transfer request that he had been forced to transfer three times since 2004, that each transfer caused him stress and anxiety, and that he has received diminishing levels of responsibility over time. Petitioner suggested that none of the transfers were for legitimate business reasons. In attachments to his Reply, he indicated that he grieved a 2006 transfer and the duties that he was assigned, and alleged that the transfer from OBRD was made to place him in a unit without any other bargaining unit members. (Pet. Ex. 8)

5

5 OCB 2d 14 (BCB 2012)

4 Associate Housing Development Specialist positions in DFD. The Union’s collective bargaining agreement with NYCHA provides that supervisors must forward employee transfer requests to the Personnel Department, but is otherwise silent on any procedures NYCHA must follow relating to the filling of vacant positions or employee transfers. NYCHA argues that it is within its managerial rights to fill vacancies and grant transfers. Petitioner alleges that two different documents set forth procedures which govern employee transfers, one of which is a portion of a personnel manual that NYCHA contends was revised and revoked as early as 1998, and another that NYCHA contends was a Union bargaining proposal that it rejected. In February 2010, Petitioner asserts that he again requested a transfer out of OBRD. He asserts that the reasons for the request were those stated in his March 2009 request and unspecified “additional personal and professional issues/reasons.” (Pet. ¶ 29) At the time the petition was filed, Petitioner alleged that NYCHA had not responded to this request. (Id.) NYCHA admits that, in response to Petitioner’s February 2010 transfer request, Petitioner met with the Special Assistant to NYCHA’s General Manager. This meeting occurred sometime between March and May 2010. In June or early July 2011, Petitioner requested a meeting with NYCHA’s Deputy General Manager for Finance. That meeting was held on July 6, 2011; thereafter Petitioner was transferred to DFD. Requests for Paid Release Time to Conduct Union Business Under certain circumstances, employee union representatives may request and 4 Petitioner claims there were vacant positions for many titles other than Associate Housing Development Specialist for which he was qualified. He requested the opportunity to develop a record at hearing to show that he was being prohibited from transferring to those positions.

6

5 OCB 2d 14 (BCB 2012)

obtain permission to conduct union business during work hours. Mayor’s Executive Order No. 75 (“EO 75”), which was issued to all Mayoral agencies, sets forth standard time and leave policies for designated employee union representatives conducting union 5 and labor-management activities. EO 75 provides that certain “Labor Management Joint” activities may be conducted by union-designated employees “subject to conditions set forth in this Executive Order, without loss of pay or other employee benefits.” The specified covered activities include investigation of grievances, grievance processing, attendance at labor-management committee meetings, negotiations or meetings with the City Director of Labor Relations, and appearance before departmental and other City officials and agencies, including the City Council, Civil Service Commission and OCB. In addition, EO 75 lists activities performed by union-designated employees that are permitted, but must be performed on “time off without pay” or charged to annual leave or compensatory time credits. (Pet. Ex. 4) These activities include, in part, attendance at union meetings, conferences or conventions, organizing union members, solicitation of members, and keeping union records. (Id.) NYCHA contends that its Human Resource Manual (“HR Manual”) sets forth rules governing time and leave for union business and that these are the only rules that apply to Petitioner. Chapter X, § 14 of the HR Manual provides, in relevant part: Absences for Employee Representatives a. Regularly Designated Representatives Absence with pay shall be granted for labor-management activities of employee-representatives, duly designated by

5 NYCHA is a public authority created pursuant to New York State Public Housing Law and is not a Mayoral agency. NYCHA contends that, because it is not a Mayoral agency, it is not subject to Mayoral executive orders, such as EO 75. (Ans. ¶¶ 44, 46)

7

5 OCB 2d 14 (BCB 2012)

certified bargaining organizations (unions) operating under the Mayor’s Executive Order No. 75, dated March 22, 1973, acting on matters related to the employees in their respective unions. The aforementioned labor-management activities are detailed in Section 2 of Executive Order 75.

b. Ad Hoc Representatives Those unions which have been granted exclusive bargaining rights may, with the approval of the Department director, designate other employee representatives, on an ad hoc basis, to handle grievances and engage in activities referred to below. Division Chiefs and Managers will be notified when one of their employees has been so designated. They are authorized to permit these designated employee representatives to be released with pay for the purpose of:

Handling Grievances at work locations (Shop Steward function) Participating in meetings of departmental joint labor-management activities Participating in negotiations between the Authority and the employee’s certified union

The employee representative must give at least 24 hours’ notice, in writing to his/her supervisor, including the following information:

The date and hour when he/she is to be released The approximate duration involved The time when he/she expects to return to regular duty A brief resume of the subject involved and the employees or officials with whom the matter is to be discussed.

* * * c. Time Off Without Pay Subject to the approval of the Manager/Division Chief, employee representatives may be permitted during normal working hours, to have time off for the following types of activity, which time shall either be without pay, or chargeable to their annual leave allowances.

Attendance at union meetings or conventions

8

5 OCB 2d 14 (BCB 2012)

Organizing and recruitment Solicitation of members Collection of union dues Distribution of union pamphlets, circulars or other literature Other union activities covered by Section 3 of Executive Order No. 75. The employee must be given at least 24 hours advance notice, in writing, and must secure written authorization of the Manager/Division Chief.

(Ans. Ex. 1) On October 1, 2009, Jon Forster, the Union’s First Vice President, requested that Petitioner and another Union official, Joshua Barnett, be given release time on that date to attend a City Council hearing on NYCHA’s use of federal stimulus money. NYCHA’s then Chief of Labor Relations granted the request for leave, but advised Forster that the release was for “union activity,” not “labor-management activity,” and therefore was chargeable to the employees’ leave balances. (Pet. Ex. 4; Ans. Ex. 7) Petitioner received a copy of the Chief of Labor Relations’ response to the request on or before October 2, 2009. Thereafter, Petitioner was directed to submit a leave of absence request for his three-hour absence on October 1, 2009. On November 6, 2009, he was again reminded to submit a request. On November 9, 2009, he was advised that a request had not yet been received. On December 2, 2009, Petitioner submitted the request “under protest.” (Pet. Ex. 4) Petitioner alleges that Barnett was not “forced” to submit a three-hour leave request. (Pet. ¶18) NYCHA alleges that it was not aware until the filing of this petition that Barnett did not submit a leave request for October 1, 2009, because Barnett did not swipe out and therefore his absence was not recorded. Subsequent to the filing of this

9

5 OCB 2d 14 (BCB 2012)

petition, NYCHA requested, and Barnett submitted, a signed leave of absence request for two hours on October 1, 2009. It is undisputed that some NYCHA employees are regularly designated union representatives who have been granted regular and reoccurring release time under EO 75 or a collective bargaining agreement. The Union has not sought, nor has Petitioner been granted, regular and reoccurring release time. It is also undisputed that prior to October 2009, Petitioner and other union representatives had been granted paid release time to participate in labor-management meetings and collective bargaining. On October 20, 2009, Petitioner submitted a form requesting paid release time to attend physical therapy on October 27 and for paid release time to perform union-related 6 duties on that day and the following two days. Petitioner alleges that the purpose of the leave request was to “meet and greet my union members so that I could distribute union campaign related material and documents to them in relation to the election as well as other union related documents and materials.” (Pet. ¶12) On October 22, 2009, Petitioner’s request for leave was denied. Again on November 9, 2009, Petitioner submitted a request for seven hours of paid leave for November 12, 2009, to conduct “personal business (union administrative activity for L.375 members covered by NYCHA H.R. Manual/E.O.75; to meet, greet and distribute union related documents to the union’s upstate members covering the water­shed area.)” This request was denied on November 10, 2009. The reason for the denial stated on the Leave of Absence Request form was “office obligations.” (Pet. Ex. 2)

6 Petitioner does not contest the denial of requested leave to attend physical therapy.

10

5 OCB 2d 14 (BCB 2012)

Counseling Memo On November 13, 2009, NYCHA issued a counseling memo to Petitioner regarding his absences without official leave (“AWOL”). The memo indicated that Petitioner did not report to work on October 27, 28, 29, and November 12, 2009, dates for which his requests for leave were denied. The memo also admonished Petitioner for being AWOL, instructed him on how to submit a timely request for leave, and warned him that, in the future, if he does not report to work on a date for which his leave request was denied, he will be docked pay and may face disciplinary action. The memo explained that Petitioner’s AWOL followed: . . . a large number of absences during the past year (2009). You have been granted annual leave for a total of 25 work days. In addition, you have been granted excused time for partial or full day absences totaling over 21 work days. Eleven of those days were excused so you could attend your disciplinary hearing and another 10 full or partial work days were excused so you could attend an Improper Practice Hearing. Please note that under the HR Manual, you are not entitled to excused time for time spent at the improper practice hearing but rather, this time could have been charged against your annual leave balance.

(Pet. Ex. 3) Petitioner was not docked any pay for being AWOL on October 27, 28, 29, or November 12, 2009. Petitioner claims that he did not notice that his October 2009 or November 2009 leave requests had been denied. He contends that customarily he was verbally advised that a request was denied, but in this instance he was not. Denial of Petitioner’s Grievances On December 2, 2009, Petitioner filed two “personal” grievances pursuant to

11

5 OCB 2d 14 (BCB 2012)

7 § 7A of the HR Manual. (Pet. Ex. 6) The first grievance contested NYCHA’s denial of his request for paid release time to conduct union business for October 1, 2009. The second grievance alleged that commencing on December 2, 2009, NYCHA assigned Petitioner to perform out-of-title duties, namely to “read” certain laundry vending smart-card dispenser machines. (Id.) On December 3, 2009, Petitioner met with OBRD’s Assistant Director and Deputy Director to discuss the grievances. On December 4, 2009, he appealed both issues to Step II of the grievance process. On December 21, 2009, NYCHA’s Chief of Labor Relations denied both grievances. With respect to the issue of leave for October 1, 2009, the Chief of Labor Relations responded: First, you incorrectly state that “release-time . . . was approved by Labor Relations.” The Labor Relations Division of the New York City Housing Authority (NYCHA) neither approves nor disapproves release time; only the Department Director where the employee works has this authority. Second, as you know, this matter has been addressed on numerous occasions over the course of the last few years. NYCHA’s position on the matter has been consistent. Executive Order No. 75 (EO 75) applies to Mayoral agencies, not public benefit corporations such as NYCHA. The substance of Executive Orders applies to NYCHA only when such provisions are expressly adopted by Board Resolution either in whole or part or in modified form; NYCHA’s Board has never adopted EO 75.

7 Chapter 1 of the HR Manual states that “the processing of grievances for all employees of the Authority is patterned upon the provisions of Section 8(a) of Executive Order No. 52 of the City of New York, dated September 29, 1967, except as may otherwise be provided in a collective bargaining agreement.” The HR Manual describes a four step procedure for employee grievances that includes a conference at Step I, responses by NYCHA at Steps II and III, and culminates in final and binding arbitration before a neutral appointed by the OCB. The definition of a grievance thereunder includes “[a] claimed violation, misinterpretation, or misapplication of the rules and regulations of the Authority affecting the terms and conditions of employment;” and “[a] claimed assignment of employees to duties substantially different from those stated in their job classification.” (Ans. Ex. 13)

12

5 OCB 2d 14 (BCB 2012)

Accordingly, Mr. Foster’s request for your release on October 1, 2009 could be and was addressed only by application of Chapter X of the Human Resources Manual, the relevant portion of which is attached for your convenience. Pursuant to Section 14(b) of that chapter, excused time may be granted by the Department Director to ad hoc union representatives for very limited labor-management activities. Testifying at a City Council hearing is not a labor-management activity recognized in Section 14 (b). For this reason, your request for excused time was denied.

(Pet. Ex. 6) The Chief of Labor Relations then addressed Petitioner’s claim that his assignment to read the laundry vending smart-card dispenser was out-of-title work. He stated: In order for your above allegation to meet the prima facie definition of grievance, you would have had to have claimed an assignment to duties “substantially different” from that stated in the title specification of the title in which you serve. By your own admission, this task has occurred or will occur too infrequently to possibly rise to the level of being “substantially different” from your Associate Housing Development Specialist job classification. For this reason, this matter is dismissed for failure to meet the definition of “grievance.”

(Pet. Ex. 6) On December 22, 2009, Petitioner emailed the Chief of Labor Relations and the Director of Human Resources, contesting the denial of his grievance, which he asserted was the result of NYCHA’s misinterpretation or misapplication of the HR Manual. On January 8, 2010, the Chief of Labor Relations responded by email and stated that his original responses concerning Petitioner’s claims remained the same. He added that, “On a related matter, I would like to take this opportunity to remind you that as a member of Local 375, Civil Service Technical Guild, your grievances must be submitted pursuant to the grievance procedures in the NYCHA-Local 375 collective bargaining agreement, not

13

5 OCB 2d 14 (BCB 2012)

8 the HR Manual. On January 11, 2010, Petitioner responded by email to the Chief of Labor Relations, stating that his claims regarding release time and whether he could file grievances under the HR Manual are issues “for OCB and an IPP.” (Pet. Ex. 6) He also stated, “I formally request that HR reconsider item two (2) of your response,” referring to the Chief of Labor Relations’ response to Petitioner’s out-of-title claim. In addition, he contested the assertion that his grievances should be brought under the collective bargaining agreement rather than the HR Manual.

POSITIONS OF THE PARTIES Petitioner’s Position Petitioner claims that he has been a longstanding officer and activist within the Union. He argues that NYCHA has a long history of animus and discriminatory action against him based on his union activity. As evidence of NYCHA’s discriminatory conduct, Petitioner mentions generally that he was forced to transfer three times, that permission for him to take two 15 minute breaks was rescinded, that all non-NYCHA documents were removed from his work space, that his voicemail was removed, and that NYCHA filed disciplinary charges against him for his union-related use of email. In