Rothberger v. L.1180, CWA, 57 OCB 19 (BCB 1996) [Decision No. B-19-96 (ES)] OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING -----------------------------------X In the Matter of the Improper : Proceeding : - between -: Eli Rothberger, : DECISION NO. B-19-96 (ES) Petitioner, : DOCKET NO. BCB-1792-95 and : Local 1180, Communications Workers of America, : Respondent. : -----------------------------------X DETERMINATION OF EXECUTIVE SECRETARY On October 30, 1995, Eli Rothberger ("petitioner") filed a verified improper practice petition against respondent Local 1180 of the Communications Workers of America ("the Union"). The petition concerns the Union's agency shop fee procedures. It states: In accordance with CWA refund procedure for agency shop members, I filed a request on April 3, 1995. After several follow-up phone calls to Ms. Helen Gibson, I was advised by her that there was a data processing problem and my refund would be in early October. This is the third year I have requested a refund (CWA states it is an advance payment) and there always seems to be a delay. I am requesting the following from OCB: 1 - A review of the CWA procedure to insure that it is expeditious and in accordance with the NYS Taylor Law Etc. 2 - A timetable from CWA on when an agency shop member can expect an expeditious refund.
Decision No. B-19-96(ES) 2 Docket No. BCB-1792-95 3 - A breakdown of Local 1180 political/ideological expenses and other non political/ideological expenses to be published in the local's newsletter annually so that members are aware of the local's expenditures. I have not been receiving the newsletter for several months. Ref: U.S. Supreme Court in Chicago Teachers Union Local 1, AFT, AFL-CIO et al v. Hudson et al. Pursuant to Title 61, § 1-07(d) of the Rules of the City of New York, a copy of which is annexed hereto, the undersigned has reviewed the petition and has determined that it does not allege facts sufficient as a matter of law to constitute a claim of improper practice within the meaning of §12-306b(1) the New York City Collective Bargaining Law ("NYCCBL"), 1 which has been held to provide that failure of a union to establish and maintain an agency shop fee rebate procedure may constitute an improper public employee organization practice under Section 12-306b(1) of the NYCCBL. 2 1 NYCCBL §12-306b(1) provides, in relevant part: 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 section 12-305 of this chapter, or to cause, or attempt to cause, a public employer to do so;... Section 12-305 of the NYCCBL provides, in relevant part: Public employees shall have the right to self-organization, to form, join or assist public employee organizations, to bargain collectively through certified employee organizations of their own choosing and shall have the right to refrain from any or all of such activities.... 2 See Decision Nos. B-3-93; B-32-91; B-25-86; B-44-82.
Decision No. B-19-96(ES) 3 Docket No. BCB-1792-95 The petition herein does not allege that an agency fee rebate procedure has not been established and/or maintained; nor does it allege that the Union's procedure is legally insufficient. Rather, it asks the Board to examine whether the procedure is in accordance with the law. The Board does not have authority under applicable law to conduct a general review of an agency fee rebate procedure absent a specific allegation that an identified element of the current procedure, or the procedure in its entirety, fails to satisfy the standards established by the applicable caselaw on this subject. No such allegation is contained in the instant petition. Accordingly, the instant petition must be dismissed. Of course, dismissal is without prejudice to the any rights that the petitioner may have in another forum or to the filing of timely improper practice petition which alleges facts sufficient to constitute a cognizable claim of improper practice. Dated: New York, New York June 18, 1996 Wendy E. Patitucci Executive Secretary Board of Collective Bargaining
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