City v. DC37, CWA, et. Al, 14 OCB 51 (BOC 1974) [( Decision No. 51-74 (Amend. Cert.)] OFFICE OF COLLECTIVE BARGAINING BOARD OF CERTIFICATION - - - - - - - - - - - - - - - - - - x In the Matter of THE CITY OF NEW YORK and DECISION NO. 51-74 RELATED PUBLIC EMPLOYERS, Petitioners, -and-DOCKET NO. RE-24-72 DISTRICT COUNCIL 37, AFSCME, AFL-CIO; COMMUNICATIONS WORKERS OF AMERICA, DISTRICT 1, CIVIL SERVICE DIVISION, AFL-CIO; and MUNICIPAL LABOR COMMITTEE ON BEHALF OF ITS CONSTITUENT UNIONS, Respondents. - - - - - - - - - - - - - - - - - - x INTERIM DECISION On December 11, 1972, the City of New York filed its petition herein. Notice of said petition was duly given by publication thereof in accordance with the requirement of §2.8 of the Consolidated Rules of the Office of Collective Bargaining. In connection with the objection raised by the Municipal Labor Committee by letter dated May 15, 1973, to its citation as a party herein, we find that the MLC is not a proper party for the purpose apparently intended by the City, i.e., as a representative and agent of "its constituent unions" or any of them in a proceeding such as this. Publication of the petition pursuant to Rule §2.8 constitutes the required notice of the matter to all interested parties. The City's petition, as amended by application made in the course of oral argument before this Board on June 3, 1974, seeks findings by this Board that employees in the following categories are Managerial and/or Confidential employees in contemplation of §214 of the New York State Civil
Service Law and of §1173-4.1 of the New York City Collective Bargaining Law;
DECISION NO. 51-74 DOCKET NO. RE-24-72 2 (1) Personnel in the following titles: a. All secretaries (including Stenographers, Senior Stenographers and Supervising Stenographers) b. All Administrative personnel (including Administrative Assistants, Administrative Associates, Senior Administrative Assistants, all levels of Engineers, all levels of Human Resources Specialists, and all levels of Social Service Supervisors) c. Other assistants who report directly to Departmental, Agency, Authority, Corporation, Office, or other such unit: 1. Administrators 2. Deputy Administrators 3. Assistant Administrators 4. Commissioners 5. Assistant Commissioners 6. Agency Heads 7. Deputy Agency Heads 8. Personnel Directors or Heads As to the above category, procedures for dealing with this portion of the City's petition have been agreed upon amongst the parties. Therefore, titles within this category are not dealt with in this decision unless they also fall within other categories dealt with elsewhere in this decision. In the event that the agreed upon procedures fail to produce a final resolution of the issues presented with regard to titles in this category, the parties may request further action by the Board.
DECISION NO. 51-74 DOCKET NO. RE-24-72 3 (2) All personnel in the following offices: a. Office of Labor Relations b. Office of Collective Bargaining c. Mayor's Executive Office d. Comptroller's Office -"Labor Law Complaint Unit" e. Bureau of the Budget f. Department of Personnel (3) All personnel in all labor relations units of all departments, agencies, authorities or other units under the jurisdiction of the Office of Collective Bargaining. (4) All titles in the Management or Executive Pay Plans. (5) All titles in the Managerial Welfare Fund which are not included in the Management or Executive Pay Plans.
DECISION NO. 51-74 DOCKET NO. RE-24-72 4 The processing of this complex petition has been marked by considerable delay. During the pen-dency of this petition, the Board has engaged in numerous conferences with the parties in an effort to reach a settlement on some or all of the categories raised in the City's petition and to establish procedures for a sound resolution of the matters upon which no agreement could be reached. Improper practice charges have also been brought by DC 37 and CWA against the Office of Labor Relations concerning certain matters related to the processing of the petition. Such charges are pending before the PERB. In this decision, however, we do not consider it necessary to detail these background events in order to proceed with our interim determination. The lack of specific allegations by the City of facts necessary to the processing of this matter, and the failure of the petition clearly to identify precisely the titles covered thereby have been the basis of motions to dismiss filed by District Council 37, AFSCME, AFL-CIO (DC 37), on May 9, 1973, and by Communications Workers of
DECISION NO. 51-74 DOCKET NO. RE-24-72 5 America, District 1, Civil Service Division, AFL-CIO (CWA), on May 11, 1973. In the course of the oral argument of June 3, 1974, at which permission to amend the petition was requested by the City, the unions opposed the application as untimely. As to all of the shortcomings in the presentation of this matter to date, including but not limited to those referred to above, it is the position of the Board that this is not intended by the law to be an adversary proceeding but a fact-finding proceeding in which the Board is required by the law which it administers to determine whether or not certain employees are managerial and/or confidential employees and, if so, to exclude them from collective bargaining. It is the function of the parties herein to aid the Board in the fact-finding process. The Board cannot allow the validity and soundness of its findings herein to be adversely affected either by the inartful efforts of one party or by the technical and procedural demands and objections of the others. We, therefore, permit and welcome the
DECISION NO. 51-74 DOCKET NO. RE-24-72 6 amendment of the petition, so far as it goes, as a step in the direction of resolution of the issues with which we must deal herein. Toward this same end, we have made certain preliminary and provisional findings and determinations as to the procedures to be employed in arriving at a final resolution of this matter. They are as follows: 1. We find, provisionally, that all employees of the Mayor's Executive Office, the Labor Law Complaint Section of the Comptroller's Office, the Office of Labor Relations and the Office of Collective Bargaining, by reason of the nature and function of the said offices and agencies, are involved in the formulation or administration of labor relations and executive policies and are, therefore, deemed to be managerial and/or confidential employees. The unions shall be allowed thirty (30) days from the date of this decision. in which to provide the Board with facts and information in support of any opposition they may have to this provisional finding.
DECISION NO. 51-74 DOCKET NO. RE-24-72 7 2. The City's allegations that all employees of the Bureau of the Budget and the Department of Personnel are managerial and/or confidential employees are not supported by sufficient information as to the functions and duties of all such employees and the activities conducted by the various subdivisions of which these agencies are composed. We note that in prior decisions we have held that certain of the employees of these agencies are managerial or confidential; a list of these employees is set forth in Schedule A hereof. Preliminary investigation indicates that there is probable cause for a finding that other employees of these agencies are managerial or confidential employees Accordingly, we direct that within thirty (30) days of this decision the
DECISION NO. 51-74 DOCKET NO. RE-24-72 8. City furnish this Board with facts substantiating its claim that all employees of these agencies are managerial or confidential employees. The unions shall be allowed thirty (30) days from the service and filing of the City's submission in which to provide the Board with facts and information in support of any opposition they may have to the City's allegations in this regard; 3. The City has submitted a list of employees in sixteen (16) agencies, who are alleged to be managerial or confidential employees by reason of their functions in the respective agencies in which they are employed.
DECISION NO. 51-74 DOCKET NO. RE-24-72 9 A copy of said list is set forth in Schedule B hereof. Objections to a finding that said employees are managerial or confidential, offers of evidence in contravention thereof, and requests for hearing or oral argument supported by affidavits showing the basis for and purpose of such requests may be filed by any interested party within thirty (30) days of the date of this decision; 4. The City is directed to file, within thirty (30) days of the date of this decision, a supplemental list of all other employees, by title and agency, who are alleged to be managerial or confidential employees by reason of their labor relations functions in the respective agencies in which they are employed.
DECISION NO. 51-74 DOCKET NO. RE-24-72 10 The unions shall be allowed thirty (30) days from the service and filing of the City's submission in which to provide the Board with facts and information in support of any opposition they may have to the City's allegations in this regard. We have established no procedure for the resolution of the City's allegations that "All titles in the Management or Executive Pay Plans" and "All titles in the Managerial Welfare Fund which are not included in the Management or Executive Pay Plans" should be excluded as managerial and/or confidential because the parties are still exploring procedures for the resolution of such allegations. Moreover, it may be assumed that a number of those titles falling within these two categories will be dealt with under the procedures provided for herein. In the event the parties do not resolve these questions, the Board will establish further procedures for dealing with the remaining titles. DATED: New York, N.Y. ARVID ANDERSON September 16, 1974. C h a i r m a n WALTER L. EISENBERG M e m b e r ERIC J. SCHMERTZ M e m b e r
Schedule A Titles from City's list of employees of the Bureau of Budget and the Departrrent of Personnel which were previously found managerial (“M”) or confidential ("C") by the Board of Certification. Title Number of Code Filled Board of Cert. Title Number Positions Finding BUREAU OF THE BUDGET Administrative Manager 1002516 “M” for some “predecessor"titles (stipulation). Assistant Personnel Examiner 12710 1 “C” in Personnel Department Associate Methods Analyst 13109 8 “M” & "C" for predecessor titles (stipulation) Classification Analyst, 93656 1 “M” & "C" for Grade 2 Rule XI equivalents in Personnel Dept. Clerk, Grade 5 93074 7 “M” & "C" for higher Rule XI equivalents (stipulation). Methods Analyst 13110 1 “M” & "C"(stipulation). Methods Analyst (X) 93773 1 “M” & "C" for Rule XI equivalents (stipulation). Principal Methods Analyst 10064 6) “M” & "C" for lower Principal Quantitative Analyst 1006510) titles (stipulation). Quantitative Analyst 60951 8) “M” & "C"(stipu Sr. Quantitative Analyst 60952 7) lation.
Schedule A (Cont'd) 2. Title Number of Code Filled Board of Cert. Title Number Positions Finding DEPARTMENT OF PERSONNEL Administrative Assistant 93833 1 “M” & "C" for (IBM Equipment)(X) higher Rule XI equivalents (stipulation). Administrative Manager 10025 4 "M" for some “predecessor" title (stipulation) . Administrative Personnel (10027 58 "C" for "predecessor” Examiner (12784 and lower titles. Assistant Personnel Examiner 12710 39 “C” Associate Personnel Examiner 12735 37 "C" for predecessor titles. Civil Service Examiner, 93651 1 "C" for Rule XI Grade 2 equivalents. Clerk, Grade 5 93074 3 “M” & "C" for higher Rule XI equivalents (stipulation). Personnel Assistant 13715 1 "C" for one employee (Frank Durso) in this Department (stipulation). Assistant Personnel 03361 2 "C" for "civil Technician (EEA) service" equivalent.
Schedule B List submitted by the City of employees alleged to be managerial or confidential by virtue of their labor relations functions in the respective agencies. Title Code Number of Filled Title Number Positions COMMISSION ON HUMAN RIGHTS Administrative Associate 10130 1 Sr. Administrative Assistant 10139 1 DEPARTMENT OF CONSUMER AFFAIRS Administrative Manager 10025 1 Executive Assistant to the 13232 1 Commissioner DEPARTMENT OF PROBATION Principal Probation Officer 08420 1 DEPARTMENT OF PUBLIC EVENTS Administrative Manager 10025 1 Senior Stenographer 10216 1 ENVIRONMENTAL PROTECTION ADMINISTRATION Admin. Labor Rel. Spec. 10022 1 Chief Lab. Rel. Asst. (EPA) -1 Clerk 10106 1 Foreman of Mechanics (MV) 92570 1 Sanitationman 70112 2 Secretary to Dept. of San. -1 Senior Clerk 10111 1 Senior Stenographer 10216 1 Supervising Shorthand Reporter 10415 1 Supervising Stenographer 10220 1 FINANCE ADMINISTRATION Admin. Accountant 10001 1
Admin. Associate 10130 1 Admin. Manager 10025 1 Asst. Administrator (Management Planning) 95309 1 Associate Accountant 40517 1 First Deputy Administrator 95301 1 Sr. Admin. Assistant 10139 1 Schedule B (Cont’d) 2. Title Code Number of Filled Title Number Positions FIRE DEPARTMENT Administrative Associate 10130 1 Asst. Personnel Examiner 12710 1 Battalion Chief 70370 1 Deputy Chief 70380 1 HEALTH AND HOSPITAL CORPORATION Administrative Assistant 10125 1 Asst. Director of Labor Relations 00100 1 Director of Labor Relations 00093 1 Senior Personnel Representative 03962 1 Senior Stenographer 10216 1 HEALTH SERVICES ADMINISTRATION Administrative Assistant (Sec.) 10122 1 Admin. Labor Relations Spec. 10022 1 Asst. Admin. (Personnel and Labor Relations) 95414 1 Asst. Personnel Examiner 12710 1 Senior Typist 10310 1 THE JUDICIAL CONFERENCE OF THE STATE OF N.Y. Employee Relations Officer -1 Sr. Personnel Analyst -1 MAYOR'S EMERGENCY CONTROL BOARD
Administrative Manager 10025 1 Director of Mayor's Emergency 71495 1 Control Board Stenographer 10205 1 MODEL CITIES ADMINISTRATION Administrative Assistant 10125 1 Sr. Administrative Assistant 10139 1 Supervising Stenographer 10220 1
Schedule B (Cont'd) 3. Title Code Number of Filled Title Number Positions NEW YORK CITY HOUSING AUTHORITY Administrative Accountant 10001 1 Administrative Housing Manager 80205 2 Administrative Manager 10025 4 Administrative Personnel Examiner 12784 2 Assistant Personnel Examiner 12710 1 Associate Attorney 30126 1 Chairman of the Housing Authority -1 Controller (HA) 40538 1 Counsel 30136 1 Deputy Controller (HA) 40531 1 Deputy Director of Management 80275 1 Deputy Director of Planning 22140 1 Director of Management 80281 1 Director of Personnel (HA) 13079 1 Director of Research & Statistics 40650 1 Executive Director (Gen. Mgr.) 10173 1 Housing Assistant 80201 1 Member of the Housing Authority -2 Principal Human Rel. Spec. 02597 1 Supervising Human Rights Spec. 55036 1 POLICE DEPARTMENT Captain 70265 1 Deputy Chief Inspector 70265 2 Inspector 70265 3 Lieutenant 70260 1 QUEENS BOROUGH PUBLIC LIBRARY Principal Librarian 60267 1 TRANSPORTATION ADMINISTRATION Admin. Lab. Rel. Spec. 10022 1 Supervising Clerk 10120 1 TRAFFIC
Deputy Commissioner 95971 1 Senior Stenographer 10216 1 MARINE AND AVIATION Administrative Associate 10130 1 Dir. of Admin. Services 10025 1
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.