LEEBA, 11 OCB2d 6 (BOC 2018) (Rep) (Docket No. RU-1648-17). Summary of Decision: LEEBA appealed the dismissal of its petition for lacking a sufficient showing of interest. The Board upheld the dismissal. (Official decision follows.) ____________________________________________________________ OFFICE OF COLLECTIVE BARGAINING BOARD OF CERTIFICATION In the Matter of the Certification Proceeding -between- LAW ENFORCEMENT EMPLOYEES BENEVOLENT ASSOCIATION, Petitioner, - and - CITY OF NEW YORK, Respondent, -and- CITY EMPLOYEES UNION, LOCAL 237, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Intervenor. ____________________________________________________________ DECISION AND ORDER On October 10, 2017, the Law Enforcement Employees Benevolent Association (“LEEBA”) filed a petition pursuant to § 1-02(c)(2) of the Rules of the Office of Collective Bargaining (Rules of the City of New York, Title 61, Chapter 1) (“OCB Rules”) to represent employees in Certification No. 27-15, a bargaining unit currently represented by the City Employees Union, Local 237, International Brotherhood of Teamsters (“Local 237”) that includes
11 OCB2d 6 (BOC 2018) 2 Special Officers and Supervising Special Officers at certain agencies, Taxi and Limousine Inspectors, and Associate Taxi and Limousine Inspectors. On December 26, 2017, the Director of Representation dismissed the petition because it lacked a sufficient showing of interest. On January 10, 2018, LEEBA appealed the dismissal on the ground that there were errors on the list of employees provided by the City of New York (“City”). The City asserts that the list included all employees on active pay status immediately preceding the filing of the petition. We uphold the dismissal. BACKGROUND With its petition, LEEBA submitted cards from individuals authorizing LEEBA to represent them for purposes of collective bargaining. Some of the authorization cards were handwritten, and others were submitted electronically. Pursuant to OCB Rule § 1-02(i), the City included “an alphabetized list of all the employees in the unit(s) sought” in its response. By comparing the authorization cards to the list of employees, the Director of Representation determined that LEEBA had not submitted evidence that at least 30% of the employees wished to be represented by LEEBA, as required by OCB Rule § 1-02(c)(2)(i). 1 Accordingly, the Director of Representation dismissed the petition pursuant to OCB Rule § 1-02(j)(2). 2 1 OCB Rule § 1-02(c)(2) provides, in relevant part: Simultaneously with the filing of the petition petitioner shall: (i) In the case of a petition for certification, submit to the Board evidence that at least 30 percent of the employees in the appropriate bargaining unit, or in each appropriate bargaining unit, desire petitioner to represent them for the purposes of collective bargaining[.] 2 OCB Rule § 1-02(j)(2) provides:
11 OCB2d 6 (BOC 2018) 3 In its appeal, LEEBA identified 14 individuals who it asserts should have been on the list of employees. In response to LEEBA’s appeal, the City asserts that the list included all employees on active payroll status as of October 6, 2017, the last day of the payroll period immediately preceding the date the petition was filed. Regarding the 14 individuals LEEBA identified, the City asserts that one was on the list, two had resigned, and 11 were not on the active payroll at that time for a variety of reasons: leave with pay pending resignation, worker’s compensation leave/disability, child care leave, or suspension without pay. POSITIONS OF THE PARTIES LEEBA’s Position Pursuant to OCB Rule § 1-02(j)(2), LEEBA appeals the Director of Representation’s finding that there was an insufficient showing of interest. LEEBA alleges that there is a serious error on the list of employees provided by the City, which resulted in a miscalculation of the sufficiency of the showing of interest. LEEBA identifies 14 individuals who it asserts were “members of the bargaining unit” when they signed authorization cards within seven months of the filing of the petition. According to LEEBA, it would have a 30% showing of interest if these 14 individuals were added to the list of employees in the bargaining unit. It requests that the Office If, after a petition or motion has been filed pursuant to § 1-02 of these rules and at any time prior to the close of the record, it appears to the Director of Representation that no further proceedings are warranted because the petition does not raise a question concerning representation or is otherwise insufficient due to untimeliness, contract or certification bar or lack of a sufficient showing of interest, the Director of Representation may dismiss the petition or deny the motion by administrative action, and will so advise the parties in writing, setting forth the grounds for dismissal…
11 OCB2d 6 (BOC 2018) 4 of Collective Bargaining investigate why the 14 individuals were left off the list provided by the City and recalculate the sufficiency of its showing of interest. In addition, LEEBA argues that the certification process is fatally flawed because a union seeking to represent employees does not receive the list of employees in the bargaining unit until after the showing of interest is submitted. According to LEEBA, requiring a rival union to guess how many employees are in a bargaining unit is unfair to employees who want to exercise their statutory right to switch bargaining representatives and prohibitive to the unions they wish to have represent them. Further, LEEBA alleges that the City denied their request for a list of employees in advance of filing their petition. Consequently, LEEBA contends that the City colluded with the incumbent bargaining representative to help that union remain certified in perpetuity. City’s Position The City contends that the list it provided included all employees on active pay status on the last day of the pay period immediately preceding the filing of the petition. It noted that one individual, whose name LEEBA misspelled, was on the list, two had resigned, and the remainder were on inactive pay status. Attaching LEEBA’s request for an employee roster in a different case, the City asserts that it never received a request for a list of employees at issue here. Further, noting that the City and Local 237 opposed the petition on different grounds, the City argues that LEEBA’s allegations of collusion are unfounded. Local 237’s Position Local 237 did not address the 14 individuals or their pay status. Instead, it requests that the Board review LEEBA’s showing of interest for indicia of fraud when assessing the validity of LEEBA’s appeal. As it did in response to the petition, Local 237 alleges that LEEBA made false
11 OCB2d 6 (BOC 2018) 5 and misleading representations to employees regarding the purpose of the authorization cards and that LEEBA’s on-line authorization card form is susceptible to fraud. DISCUSSION The purpose of the showing of interest is to enable the Board to avoid the needless expenditure of public funds in the investigation and processing of cases in which the petitioner does not have substantial support of the employees. See Council 82, 2 OCB2d 22, at 10-11 (BOC 2009); see also Matter of Suffolk Ch., Civil Serv. Empls. Assn., Inc. v. Helsby, 63 Misc2d 403, 404 (Sup. Ct. Suffolk County 1970), affd 35 AD2d 655 (2d Dept 1970). Accordingly, the Director of Representation is empowered to administratively dismiss a petition that lacks a sufficient showing of interest. See OCB Rule § 1-02(j)(2). It is well established that “[s]ufficiency of interest shall not be litigated.” OCB Rule § 1-02(c)(3). In the field of labor law, the showing of interest in support of representation petitions is “universally held to be a non-litigable matter the determination of which is left to the sound discretion of the administrative agency and thus is not subject to review.” DC 37, 16 OCB 23, at 16 (BOC 1975) (citing federal court cases); see Suffolk Ch., Civ. Serv. Empls. Assn., 63 Misc2d at 403-4 (upholding Rule 201.4 of the Public Employment Relations Board, which similarly precludes litigation of the sufficiency of the showing of interest). For this reason, we do not address the Director of Representation’s conclusion that an insufficient number of valid authorization cards was submitted. See OCB Rule § 1-02(f). 3 3 OCB Rule § 1-02(f), entitled “Proof of interest – current,” provides: Designation and authorization cards and petitions, submitted as proof of interest under §§ 1-02(c), 1-02(e)(2) or 1-02(l) of these rules, must be signed and dated by employees not more than seven
11 OCB2d 6 (BOC 2018) 6 OCB Rule § 1-02(f) provides that “[p]roof of interest shall be based on the payroll immediately preceding the date of filing of the petition, unless the Board deems such period to be unrepresentative.” (emphasis added) We find that utilizing a list of employees on active pay status on the last day of the pay period prior to the filing of the petition is a reasonable interpretation of this rule. The Board has noted that cards signed by individuals who were not employed “during the relevant payroll period” are invalid. 4 See DC 37, 16 OCB 23, at 17-18. Moreover, requiring a petitioner to obtain proof of interest from individuals who are not on active pay status would be unduly burdensome and is not necessary to effectuate the purpose of the showing of interest. 5 Further, we do not agree with LEEBA’s claim that production of a list of employees with the employer’s response is unfair to a rival union and employees. The purpose of this provision in OCB Rule § 1-02(i), which has been part of the OCB Rules for decades, is to assist the agency in determining the sufficiency of the showing of interest, not to put a rival union or employees on notice of the size of the bargaining unit. 6 months prior to the commencement of the proceeding before the Board. Proof of interest shall be based on the payroll period immediately preceding the date of filing of the petition, unless the Board deems such period to be unrepresentative.” 4 In essence, LEEBA is seeking the inclusion of individuals not based on their status on or off the payroll but because they signed authorization cards within seven months of the filing of the petition. Such an interpretation would nullify the express language of the rule and be contrary to its purpose. See OCB Rule § 1-02(f) (requiring proof of interest to be “current”). 5 The individuals LEEBA seeks to add to the list of employees are not the only bargaining unit members on inactive status. If all bargaining unit members on inactive status were included for purposes of checking the showing of interest, LEEBA would still not have a 30% showing of interest. 6 Since individuals may be hired or leave employment throughout an organizing campaign, any list of employees generated prior to the filing of the petition would vary to some degree from the list generated to check the showing of interest. As a result, petitioners frequently submit far more authorization cards than the 30% required.
11 OCB2d 6 (BOC 2018) 7 Lastly, we do not find that further investigation of Local 237’s allegation of fraud is warranted. We note that the authorization cards submitted clearly state that signing indicates the desire to be represented by LEEBA for purposes of collective bargaining. See State of New York, 31 PERB & 3058 (1998). In addition, while Local 237 asserts that electronic gathering of cards creates the possibility of fraud, mere speculation is an insufficient basis to cast doubt on the authenticity of the submission. See State of New York, 10 PERB & 3108 (1977). Accordingly, we reject Petitioner’s claims on appeal and uphold the dismissal of the petition.
11 OCB2d 6 (BOC 2018) 8 ORDER Pursuant to the powers vested in the Board of Certification by the New York City Collective Bargaining Law, it is hereby ORDERED, that the appeal filed by the Law Enforcement Employees Benevolent Association challenging the dismissal of its petition, docketed as RU-1648-17, is hereby dismissed. Dated: March 7, 2018 New York, New York SUSAN J. PANEPENTO CHAIR ALAN R. VIANI MEMBER
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