Grace v. Friedman, NYSNA & HHC, 55 OCB 18 (BCB 1995) [Decision No. B-18-95 (IP)] OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING -----------------------------------X In the Matter of the Improper Practice -between-THELMA J. GRACE, Petitioner, DECISION NO. B-18-95 -and-DOCKET NO. BCB-1385-91 HELEN FRIEDMAN, the NEW YORK STATE NURSES ASSOCIATION, and the NEW YORK CITY HEALTH AND HOSPITAL CORPORATION, Respondents. -----------------------------------X DECISION AND ORDER On May 16, 1991, Thelma J. Grace ("Petitioner") filed an improper practice petition which alleged that Helen Friedman and the New York State Nurses Association ("NYSNA" or "Association") violated §12-306b of the New York City Collective Bargaining Law ("NYCCBL") 1 by failing to properly represent her. On June 13, 1991, the NYSNA filed an answer and a motion to dismiss the petition. The Petitioner filed a reply on June 24, 1991. Pursuant to §209-a(3) of the Taylor Law, 2 on July 8, 1991 the Petitioner made the New York 1 NYCCBL Section 12-306b, which has been held to prohibit violations of the judicially recognized fair representation doctrine, provides as follows: b. Improper public employee organization practices. It shall be an improper practice for a public employee organization or its agents: (1) to interfere with, restrain or coerce public employees in the exercise of rights granted in §12-305 of this chapter, or to cause, or attempt to cause, a public employee to do so; (2) to refuse to bargain collectively in good faith with a public employer on matters within the scope of collective bargaining provided the public employee organization is a certified or designated representatives of public employees of such employer. 2 Section 209-a(3) of the Taylor Law provides: (continued...)
Decision No. B-18-95 2 Docket No. BCB-1385-91 City Health and Hospitals Corporation ("HHC" or "the Employer"), a party to her charge against the NYSNA. On October 31, 1991, HHC filed an answer and motion to dismiss the petition. The Petitioner filed a reply on December 23, 1991. BACKGROUND The Petitioner was hired by the Bronx Municipal Hospital Center ("BMHC"), a division of HHC, on June 1, 1987, as a staff nurse and was assigned to work on the night shift. On October 26, 1987, the Petitioner was served with two charges of misconduct: 1. Specification: Gross Insubordination -- On October 14, 1987, you were given an order to give a "STAT" dose of medication to a pediatric patient. You failed to immediately carry out that order resulting in a one and one half (1 1/2) hour delay in medical treatment. 2. Specification: Failing to Immediately Follow Instructions -- On October 10, 1987 at approximately 0200 hours, you were given instruction to admit a patient. You failed to immediately follow those instructions resulting in an unnecessary delay in the admission of the patient. The NYSNA filed a grievance on behalf of the Petitioner, alleging wrongful disciplinary action. A Step IA conference was scheduled for November 5, 1987, but was postponed four times. 3 It was finally held on March 3, 1988. Because the complaining physician in Specification No. 1 was unavailable on March 3, 1988, HHC withdrew the charge. As a result, the hearing that day was limited to Specification No. 2. Before the decision of the Hearing Officer issued, however, a Notice of Reinstated Charges was brought against the Petitioner. Over the protest of the NYSNA and without its participation or that of the Petitioner, another Step 1A Conference was held on March 24, 1988. In a determination 2 (...continued) (3) The public employer shall be made a party to any charge filed under subdivision two of this section which alleges that the duly recognized or certified employee organization breached its duty of fair representation in the processing of or failure to process a claim that the public employer has breached its agreement with such employee organization. 3 The adjournments were requested by one party or the other, an equal number of times.
Decision No. B-18-95 3 Docket No. BCB-1385-91 dated March 30, 1988, the Hearing Officer upheld both charges and imposed a penalty of termination of employment. Pursuant to the contract between the NYSNA and HHC, the Association appealed the Step 1A decision. A Step II conference was held on May 5, 1988. In a letter dated June 2, 1988, the Assistant Director of Labor Relations at BMHC sustained both charges and the penalty. A Step III Conference was held on October 27, 1988. In a Decision dated December 8, 1988, the Step III Review Officer found that the weight of the evidence supported the charges and the penalty imposed. A hearing before an arbitrator was held on March 5, 1990. At the hearing, HHC withdrew Specification No. 2 "with prejudice," again because of the absence of a witness. HHC argued, however, that it had not withdrawn Specification No. 1 "with prejudice" on March 3, 1988; thus, the charge was properly reinstated when the complaining witness subsequently became available. In an award dated April 12, 1990, the arbitrator found that both charges had been withdrawn "with prejudice." Accordingly, the arbitrator sustained the grievance and awarded the Petitioner reinstatement with back pay, "less any income from other employment in the period since her removal from the payroll." On May 1, 1990, HHC's Director of Labor Relations wrote to the Petitioner, stating: "[i]n light of the [award], please contact my office upon receipt of this letter to apprise us of your expected date [of] return to [BMHC]." The Petitioner returned to work on or about June 4, 1990, and was assigned to work on the day shift. On January 17, 1991, the Petitioner received the following letter from Helen Friedman, the NYSNA representative who handled the Petitioner's grievance through the various steps: After considerable effort, it has been ascertained that the back pay comes to $78,899.02. I have also requested back pay for shift differential and uniform allowance and will notify you when I receive the information. We have been told by Labor Relations and the Corporation that you must submit your tax returns in order to verify your income for the time in question. In addition, your refusal to furnish this information can result in a further charge of insubordination. Unfortunately, I can't force them to honor the award unless you comply with their
Decision No. B-18-95 4 Docket No. BCB-1385-91 request. Please consider carefully what I have written. I would be most happy to discuss this with you at any time. On May 16, 1991, the Petitioner filed the instant improper practice petition against Ms. Friedman and the NYSNA, alleging a breach of the duty of fair representation. 4 Among the charges leveled against the Association, the Petitioner's chief complaints were the delay in receiving her back pay and her contention that $78,899.02 was not the correct amount due her. The Petitioner submits that "it wasn't until [the] letter arrived dated January 17, 1991, I finally realized Ms. Friedman was thwarting all my efforts to seek proper payment from BMHC." In her petition, the Petitioner charged Ms. Friedman with having a "close association with management" and, therefore, a "conflict of interest." As evidence of this conflict, the Petitioner claimed that Ms. Friedman tried to discourage her from pursuing the grievance in the first place; that she was "rude and degrading" whenever the Petitioner called to inquire about the back pay; and that Ms. Friedman suggested that the Petitioner be brought up on more charges of insubordination in the January 17th letter. The Petitioner also claimed that the NYSNA further breached its duty of fair representation by mishandling her case before the arbitrator. In support of this allegation, the Petitioner submits that she met only once with the NYSNA attorney prior to the arbitration hearing; that this attorney failed to keep in touch with her by telephone, as he had promised; that the Association failed to obtain the Petitioner's personnel file before it was altered and then used as evidence against her; and that evidence was withheld from the arbitrator during the hearing. The Petitioner further complained that the arbitrator's award was inadequate and did not remedy the wrong done to her. In this regard, the Petitioner submits that she should have been reinstated to her position on the night shift rather than the day shift. 4 Pursuant to Section 209-a(3) of the Taylor Law, HHC was made a party to the charge on July 8, 1991.
Decision No. B-18-95 5 Docket No. BCB-1385-91 In a letter to the Office of Collective Bargaining ("OCB") dated July 17, 1991, NYSNA and HHC jointly requested assistance in resolving of this matter. Specifically, the NYSNA requested that the original arbitrator reassert jurisdiction to determine the correct amount of back pay due the Petitioner. The Association and the Employer also requested that the instant improper practice petition be held in abeyance pending resolution of the back pay issue. On July 25, 1991, the Petitioner agreed to allow an attempt at non-binding mediation of the dispute. On August 23, 1991, a mediation session was held before Alan R. Viani, OCB's Deputy Chairman for Disputes. At that meeting, the parties agreed to reopen the arbitration for the purpose of determining the correct amount owed the Petitioner under the arbitrator's award. A letter to that effect was sent to the arbitrator on November 22, 1991. On December 5, 1991, the Petitioner received a check in the amount of $38,758.34 gross/$23,208.08 net, which, according to HHC, represented her base salary and night shift differential for the period of separation ($78,899.02), less interim income. On January 12, 1992, the arbitrator wrote to the parties, asking whether the post-award issues in this matter had been resolved. In its response dated January 16, 1992, NYSNA stated: "Although New York City Health and Hospitals Corporation has paid the Grievant, it has not yet provided her or the Association with its computation of the back pay liability." On January 24, 1992, HHC responded that it paid the grievant her back pay and provided the NYSNA with a computation of its back pay liability. According to the Petitioner, $78,899.02 was incorrect because it did not include all of her accrued annual leave, holiday premium pay, uniform allowance and employer contributions to the health and welfare fund. In addition, the Petitioner still maintained that she should have been reinstated to the night shift rather than the day shift. On March 3, 1992, the arbitrator scheduled a hearing in order to resolve these issues. A second day of hearing was held on June 9, 1992. In a supplementary award dated July 7, 1992, the arbitrator awarded the Petitioner an additional 12.5 hours credit to her annual leave
Decision No. B-18-95 6 Docket No. BCB-1385-91 balances. The arbitrator found, however, that the back pay award properly did not include holiday premium pay for holidays that were not worked, compensation for costs associated with wearing a uniform where no uniform costs were incurred or direct payments of health and welfare fund contributions. The arbitrator further held that HHC had the right to reinstate the Petitioner to the day shift. On July 13, 1992, the supplemental award was filed with the OCB. On March 8, 1995, the Trial Examiner assigned to this matter wrote the following letter to the Petitioner: According to the record in [this] matter, this case has been held in abeyance since March 1992. At that time, the parties agreed to reopen the case before Arbitrator Tia Schneider Denenberg (Case No. A-2977-88), who earlier had issued an arbitration award sustaining a grievance brought on your behalf. It was the Corporation's alleged failure to comply with the arbitration award and the NYSNA's alleged failure to adequately represent you in that matter which formed the basis of the improper practice petition that you filed with this office. The record further indicates that a hearing was held on June 9, 1992, and that Arbitrator Denenberg issued a supplementary award dated July 7, 1992, disposing of the outstanding issues. The record contains no information beyond this point. The purposes of the New York City Collective Bargaining Law are not served when cases are carried indefinitely on the docket of the Office of Collective Bargaining. Accordingly, please let me know, in writing, on or before March 31, 1995, whether you wish to pursue the improper practice petition against the Corporation and the NYSNA. If I do not hear from you, I will assume that your differences in this matter have been resolved. In that event, I will proceed to close the case administratively. On April 3, 1995, the Petitioner notified OCB that she wished to pursue the matter. POSITIONS OF THE PARTIES The Petitioner's Position The Petitioner maintains that the Association breached its duty of fair representation when it provided her with a representative who was "partial" to management and, therefore, had a "conflict of interest." The Petitioner alleges that, as a result, the Association failed to argue her case effectively before the arbitrator, failed to win the proper amount of back pay that was due her and
Decision No. B-18-95 7 Docket No. BCB-1385-91 failed to win her reinstatement to the night shift. The Association's Position In its answer, the NYSNA denies each and every allegation in the petition and, further, moves to dismiss the petition for failure to state a cause of action under the NYCCBL. The Association contends that the basis of the petition, the delay in the Petitioner's receipt of back pay under the award, is due to her own failure to comply with the award. "Since the award was issued," NYSNA contends, "Ms. Grace has refused, despite repeated requests from the Association, to provide the information requested by the Corporation concerning 'any income from other employment in the period since her removal from the payroll.'" 5 The Petitioner's refusal to comply with the award, NYSNA submits, does not constitute a violation of the NYCCBL. In any event, the Association argues, by processing the Petitioner's grievance to arbitration, and winning that arbitration, the NYSNA represented her fairly and properly and, therefore, did not breach its duty of fair representation. The Employer's Position In its answer, HHC denies knowledge and information sufficient to form a belief as to the truth of the allegations against the NYSNA. The Employer also moves to dismiss the petition against HHC on the grounds that it fails to state an improper public employer practice under §12-306a of the NYCCBL. DISCUSSION The duty of fair representation has been recognized as obligating a union to act fairly, impartially and non-arbitrarily in negotiating, administering and enforcing collective bargaining 5 It should be noted that subsequent to the filing of the instant petition, the Petitioner supplied the copies of her tax returns and received a check for the disputed amount of $23,208.08.
Decision No. B-18-95 8 Docket No. BCB-1385-91 agreements. 6 In the area of contract administration, it is well settled that a union does not breach its duty of fair representation merely because it refuses to advance a grievance, 7 or because the outcome of a settlement does not satisfy a grievant. 8 A union is permitted wide discretion in its handling of grievances. 9 It is not enough for a petitioner to allege negligence, mistake, incompetence or even error in judgment on the part of the union. 10 A breach of the duty of fair representation occurs when the union's conduct towards a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith. 11 When alleging a breach of the duty, the petitioner bears the burden to plead and prove that the union has engaged in such conduct. 12 Here, the Petitioner alleges that Ms. Friedman, the NYSNA representative, was "partial" and had a "close association with management." Other than these conclusory statements, however, the Petitioner offers no evidence of this alleged conflict of interest. Nor has the Petitioner presented any evidence that the handling of her grievance was done arbitrarily, in bad faith or in a way that discriminates against her insofar as her rights under the NYCCBL are concerned. We find that the Petitioner's claim that she did not receive proper representation, evidenced by the fact that her grievance was not resolved to her satisfaction, wholly conclusory and 6 Decision Nos. B-31-94; B-24-94; B-23-94; B-22-94; B-8-94; B-29-93; B-21-93. 7 Decision Nos. B-24-94; B-22-94; B-8-94; B-44-93; B-29-93; B-21-93. 8 Decision Nos. B-31-94; B-24-94; B-22-94; B-8-94; B-29-93; B-21-93; B-5-91; B-27-90; B-2-90; B-72-88; B-58-88; B-50-88; B-34-86; B-32-86; B-9-86; B-25-84; B-2-84; B-13-81; B-16-79. 9 Decision Nos. B-24-94; B-22-94; B-8-94; B-29-93; B-21-93; B-5-91. 10 Decision Nos. B-24-94; B-22-94. 11 Decision Nos. B-44-93; B-5-91. 12 Decision Nos. B-24-94; B-22-94; B-44-93; B-21-93; B-35-92; B-56-90.
Decision No. B-18-95 9 Docket No. BCB-1385-91 unsupported by any evidence whatsoever. In contrast, the undisputed facts demonstrate that the NYSNA pursued a grievance on her behalf, represented her throughout the steps of the grievance procedure up to and including arbitration, and was successful in having the charges dismissed and the Petitioner reinstated with back pay. We perceive no basis for a finding of improper practice against the NYSNA. The record establishes that there was no bad faith in the way the NYSNA handled the Petitioner's grievance. Accordingly, inasmuch as the Petitioner has failed to establish a breach of the duty of fair representation, the improper practice petition shall be dismissed in its entirety. ORDER 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 improper practice petition filed by Thelma J. Grace be, and the same hereby is, dismissed. DATED: New York, New York September 19, 1995 MALCOLM D. MacDONALD CHAIRMAN GEORGE NICOLAU MEMBER DANIEL G. COLLINS MEMBER JEROME E. JOSEPH MEMBER ROBERT H. BOGUCKI MEMBER SAUL G. KRAMER MEMBER RICHARD A. WILSKER
Decision No. B-18-95 10 Docket No. BCB-1385-91 MEMBER
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