DC37, et. Al v. City, 22 OCB 22 (BOC 1978) [Decision No. 22-78 (Cert.)] OFFICE OF COLLECTIVE BARGAINING BOARD OF CERTIFICATION -------------------------------------X DISTRICT COUNCIL 37, AFSCME, AFL-CIO -and-DECISION NO. 22-78 PATROLMEN’S BENEVOLENT ASSOCIATION DOCKET NOS. RU-624-77 RU-626-77 -and- RU-627-77 RU-630-78 SCHOOL CROSSING GUARDS ASSOCIATION RU-636-78 OF THE CITY OF NEW YORK RU-637-78 RU-638-78 -and-CITY OF NEW YORK -------------------------------------X DECISION AND ORDER The instant proceeding relates to the appropriate unit placement and the representation rights of employees in various titles who perform work related to the functions of the Police Department of the City of New York. The following petitions for certification have been filed with the Board of Certification: 1) RU-624-77, November 21, 1977;DC-37 petition to amend its Certification No. 46C-75, covering clerical andrelated titles by adding thereto the title of Precinct Receptionist (Per Hour). There are approximately 54 incumbents in this title. 2) RU-626-77, December 12, 1977; PBA request to amend its Certification No. 54-68, covering police officers by adding thereto the title of Police Attendant, commonly referred to as matron. There are approximately 97 incumbents in this title. 1 3) RU-627-77, December 12, 1977; 1 The present incumbents in certificate 54-68 are Patrolmen and Policewomen.
Decision No. 22-78 2 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 PBA request to amend its Certification No. 54-68, covering police officers by adding thereto the title of School Crossing Guard (CETA). There are approximately 521 incumbents in this title. The School Crossing Guards Association and DC-37 intervened in this proceeding. 4) RU-630-78, January 9, 1978; DC-37 request to amend its Certification No. 46A-75, covering various social services titles, by adding thereto the title of Police Attendant (CETA)(Female). These are the same employees referred to in RU-626-77. 5) RU-636-78, January 30, 1978; PBA request to amend its Certification No. 54-68, covering police officers by adding thereto the title of Police Office Associate (CETA). There are approximately 800 incumbents in this title. DC 37 intervened in this proceeding as the certified representative. 6) RU-637-78, January 30, 1978; PBA request to amend its Certification No. 54-68, by adding thereto the title of Police Administrative Aide. There are approximately 1500 incumbents in this title. DC-37 intervened in this proceeding as the certified representative. 7) RU-638-78, January 30, 1978; PBA request to amend its Certification No. 54-68 by adding thereto the title of Precinct Receptionist. These are the same employees referred to in RU-624-77.
Decision No. 22-78 3 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 Following an initial submission in which the City of New York took the position that it opposes the PBA petitions on the ground that they request inappropriate units and that they are barred by §1173-10.0(b) of the New York City Collective Bargaining Law, the Board, by letter of February 27, 1978, requested that the parties submit memoranda addressed to certain issues. The submissions of the parties were completed on April 3, 1978. There are three issues before the Board for decision: the status of the PBA petitions under the NYCCBL; the appropriate unit placement of the employees in the DC-37 petitions; and the unit placement of School Crossing Guards (CETA). PBA Petitions The threshold question presented to the Board, as to this group of petitions, is whether the PBA may lawfully be certified to represent employees in the titles named in its petitions. NYCCBL §1173-10.0, “Special provisions relating to certification,” provides: b. No organization seeking or claiming to represent members of the police force of the police department shall be certified if such organization (i)admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than members of the police force of the police department, or (ii) advocates the right to strike. The PBA first addressed the issue posed by §117310.0(b) in its letters of January 30, which accompanied the petitions in RU-636,, 637 and 638. The letters, stated in pertinent part:
Decision No. 22-78 4 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 We seek to bring into our union by virtue of amendment of our certification employees who are attached to the Police Department, are controlled by the Police Department and are performing Police functions. ...It is our position that the Police Department has embarked upon a case of conduct whereby it has subdivided the Policeman’s function so as to enable it to hire individuals with the assistance of federal funds. * * * The PBA wishes to make it clear that the net result of the Department’s action of hiring “Civilian employees,” and adding them to the Police Force is to destroy our union because with each new subdivision created by the Department that many potential members are lost to the PBA. DC-37 takes the position that “51173-10.0(b) is unambiguous in its proscription against the representation of police force personnel by the same bargaining representatives as the civilian personnel.” The City argues that the PBA is barred from representing any of the petitioned for titles. by §1173-10.0(b) of the statute. The city states that none of the employees in the titles petitioned by the PBA is a member of the “police force” as defined by law, and that it would be
Decision No. 22-78 5 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 contrary to the intent of the legislature to permit the PBA to represent these civilian employees. Both the City and DC-37 contend that there is no community of interest among the police officers represented by the PBA and the civilian employees named in the petitions filed by PBA, and that this is an additional basis for denying the petitions. (The unit contentions of the parties are discussed below.) Although §1173-10.0(b) is clear and unambiguous on its face, a brief examination of the development of public sector labor relations in the City of New York as it relates to the Police Department is instructive. Executive Order 49, issued by Mayor Wagner on March 31, 1958, gave certain rights to public employees relating to organization, representation and the representation of grievances. The Order did not apply to the Police Department, and the PBA brought an Article 78 proceeding seeking to have grievance rights extended to it independent of representation rights. The Court of Appeals decided against the PBA in a memorandum opinion, 2 affirming an Appellate Division decision which held that the legislative history of EO 49 showed an intent to exclude employees of the Police Department from its purview. 3 2 PBA v. Wagner, 7 NY 2d 813, 196 NYS 2d 694 (1959). 3 187 NYS 2d 809 (1959).
Decision No. 22-78 6 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 Thereafter, on March 29, 1963, Mayor Wagner issued an Executive Order “On the conduct of Labor Relations between the City of New York and members of the Police Force of the Police Department.” This order dealt separately with labor relations between the City and “its employees who are members of the Police Force of the Police Department.” Section 9 thereof, entitled “Non-Qualified organizations” provided inter alia: 1. No organization seeking or claiming to represent members of the Police Force of the Police Department shall be certified as the representative of employees of the Police Force of the Police Department in a bargaining unit of such employees if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than members of the Police Force of the Police Department. Executive Order 52, issued by Mayor Lindsay on September 29, 1967, also dealing with public employee labor relations, included inter alia, provisions relating to the Police Department. It should be noted that the Order provided a general grievance procedure applicable to all mayoral agency employees (Section 8), but a separate and distinct grievance procedure was established for “members of the Police Force of the Police Department” (Section 8b).
Decision No. 22-78 7 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 Thus, at the time of the effective date of the NYCCBL, on September 1, 1967, the practice of dealing separately with labor relations issues affecting members of the Police Force had been in effect for over nine years and had been approved by the Court of Appeals. Further, the statute itself defines a different scope of bargaining for members of the uniformed Police Force. Under NYCCBL §1173-4.3a, certain subjects of bargaining are specified for employees of the City of New York; and pursuant to subparagraph 4.3a (4)an exception is provided for uniformed police officers on whose behalf “all matters” must be negotiated with the certified employee representative. Thus, the NYCCBL contemplates that matters affecting Patrolmen and Policewomen shall be negotiated separately and within a different framework than that applicable to employees who are not members of the police force. By its letter of January 30, 1978, which is quoted at page 3, supra, the PEA appears to maintain that it does not quarrel with the meaning or effect of Section 1173-10.0b, nor seek any end not consistent with that provision of the NYCCBL. Instead it claims that the term “members of the Police Force of the
Decision No. 22-78 8 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 Police Department” should be reinterpreted by this Board so as to bring within its compass the titles now sought by PBA to be added to its unit. Administrative Code §434a-1.0 defines the “membership of the police force” §434a-1.0 Composition of Force. -Until otherwise provided by the mayor, upon the recommendation of the commissioner, the police force in the police department, shall consist of the following members, to wit: 1. Captains of police, not exceeding one in number to each fifty of thetotal number of patrolmen, in addition to the number detailed to act as inspectors; 2. Lieutenants of police, not exceeding four in number to each fifty of the total number of patrol men. 3. Sergeants not exceeding six in number to each fifty patrolmen; 4. Surgeons of police, not exceeding forty in number, one of whom shall be chief surgeon; 5. A veterinarian. 6. A superintendent of telegraph and an assistant superintendent of telegraph; 7. Patrolmen to the number of seven thousand eight hundred thirty-nine.
Decision No. 22-78 9 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 This list of the membership of “the police force in the police department” must be regarded as definitive, and the specific inclusion of the various titles of employees (with the exclusion of others), must be taken as mandatory and binding upon the Board. Manifestly, no civilian titles such as School Crossing Guard, Precinct Receptionist, Police Attendant (Women), Police office Associate, and Police Administrative Aide appear on this list as members “of the police force.” Moreover, Administrative Code 434a-16.1 provides for the employment of School Crossing Guards, but specifies that “nothing contained herein shall be construed to constitute such School Crossing Guards members of the Police Force.” Further guidance in determining this issue is to be found in various sections of Chapter 18 of the Administrative Code establishing the Police Department which recognize explicitly that there may be appointments to positions in the Police Department which do not amount to membership in the Police Force. In addition to the instance of School Crossing Guards cited above, special patrolmen may be appointed by the Police Commissioner pursuant to Section 434a-7.0;
Decision No. 22-78 10 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 they shall “possess the powers, perform the duties and be subject to the orders, rules and regulations of the department... [and] wear a badge....” (Administrative Code Section 434a-7.0(b).) Yet the law specifies that special patrolmen, whether citizens serving without pay or employees of a government agency appointed to perform duties as special patrolmen, shall not be deemed “members of the force.” (Administrative Code Section 434a-7.0(d) and (e).) In summary, we find that none of the petitioned titles cover employees who are “members of the Police Force” within the meaning of NYCCBL §1173-10.0(b). The several provisions of the Administrative Code compel this finding. Furthermore, the statutory intent is clear that although various classes of persons, both volunteers and public employees, may perform certain types of police related functions, only those employees listed in §434a-1.0 are members of the “Police Force.” From the discussion above, it is clear that the NYCCBL prohibits certification of the PBA to represent the titles it seeks in this proceeding so long as the PBA is certified to represent patrolmen and policewomen.
Decision No. 22-78 11 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 In addition to the Court of Appeals decision in PBA v. Wagner, supra, there is other precedent for treating police officers separately from other public employees in their collective bargaining relationship with the public employer. In Vorbeck v. McNeal, a three judge federal court held that a Missouri state statute totally excluding police officers from collective bargaining procedures “has a rational relation to a legitimate objective of the state and does not abridge any of plaintiffs’[police officers constitutional rights.” 4 Although the court held that a provision of the statute which prohibited police officers from joining or forming labor organizations was a violation of the officers First Amendment rights, the court stated that “there is no constitutional right to collective bargaining” 91 LRRM 2791. It is clear that the grant to public employees by state statute of the right to bargain collectively with the public employer may be conditional. Thus in Rogoff v. Anderson, 310 NYS2d 174 (App. Div., 1st Dept. 1970); affirm ed on opinion of Appellate Division, 28 NY2d 880 (1971); appeal dismissed, 404 US 805, 78 LRRM 2463. (1971), it was held that as a condition precedent to certification as the exclusive collective bargaining representative of certain public employees, a union could properly be required to submit an affirmation that it “does not assert the right to strike 4 91 LRRM 2788, 2792 (E.D. Mo. 1976); affirmed without opinion 426 US 943, 92 LRRM 2861 (1976).
Decision No. 22-78 12 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 against any government.” The court found that certification as exclusive bargaining representative, with its “attendant benefits” such as the making of dues deductions by the employer, could reasonably be conditioned upon a no-strike affirmation by the union and that the statutory condition was therefore constitutional. In the instant case, a similar rationale applies. The NYCCBL does not purport to regulate the police officers’ constitutional right to form or join a labor organization. The effect of §1173-10.Ob is to establish as a condition to continued certification of PBA as the exclusive bargaining representative, with its attendant benefits, the requirement that employees who are not “members of the police force” not be admitted to member ship in the PBA. We deem this condition to be reason able within the holdings of Vorbeck v. McNeal and Rogoff v. Anderson, supra. Moreover, Board precedent clearly supports a holding that non-members of a uniformed force cannot be included in a bargaining unit with members of the force. In UFOA, Local 854, IAFF and City of New York, Decision No. 20-71, we held that Chaplains in the Fire Department, who were not members of the “uniformed Fire Service,” could not be added to a unit of fire officers. In Sanitation Medical Officers Ass’n. and the City of New York, Decision
Decision No. 22-78 13 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 No. 25-71, we held that medical officers in the Department of Sanitation could not be included in a unit of Sanitation Officers because they were not members of the Uniformed Sanitation Service. Finally, in Doctors Association, et al and City of New York, Decision No. 31-73, the Board said: It is well settled that the Board will not find mixed units containing both members of a uniformed force and non-uniformed employees. Sanitation Medical Officers Association and the City of New York, Decision No. 25-71; Uniformed Fire Officers Association, Local 854, IAFF, AFL-CIO; Decision No. 20-71. As the Board emphasized in the cited cases, the scope of bargaining for members of a uniformed force is governed by §11734.3a(4) while the scope of bargaining for non-uniformed employees is governed by §1173-4.3a(25 (3) and (5). Furthermore, with respect to Surgeons in the Police Department, §1173-10. Ob of the NYCCBL prohibits the certification of an organization to represent members of the police force if such organization admits to membership employees other than members of the police force. Further, it does not appear that the civilian employees herein have a community of interest with the members of the police force represented by the PBA such that the civilians would be included in the unit even in the absence of NYCCBL §1173-10.0(b).
Decision No. 22-78 14 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 In its administration of the Taylor Law, PERB has considered the question whether employees of law enforcement agencies who are not members of a police force should be included in a single unit with police officers. The rule established by PERB under the Taylor Law is that police officers shall have separate units for collective bargaining due to the fact that “policemen are... fundamentally different from everyone else....” 5 to An early determination by the PERB Director of Representation set forth the reasons for finding that “members of the police force form a cohesive group having a substantially different community of interest from that of all other employees.” 6 These findings were: The separate community of interest of policemen is evidenced by the following factors: (a) their primary commitment to law enforcement on a 24 hour basis, as well as the obvious hazards their work entails; (b) the historical development of labor relations with regard to policemen; (c) the common interests of the patrolmen herein in maintaining and attempting to upgrade their personal and professional status; (d) the expression of unique, job-related standards in the performance of their public service; and (3) the carrying on of employment relations with an administrator (the chief police officer) who also considers himself to be a member of their profession. 5 City of Amsterdam, 10 PERB 3031 (1977). 6 Town of Cornwall, 3 PERB 4004 (1970)
Decision No. 22-78 15 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 In the instant case, the facts show that the civilian titles petitioned herein do not have a sufficient community of interest with members of the police force, and they would not appropriately be placed in a single unit even in the absence of 91173-10.0(b). It is manifest that none of the employees in the civilian titles at issue perform police functions which would be considered typical functions of a police officer: They do not carry guns; they do not enforce the criminal laws; they do not have the power of arrest; they do not wear the police uniform or shield; they are not subject to the kind of emergency situations where their health and safety may be endangered on patrol in the performance of their normal duties. Although civilian employees of the Police Department have been assigned some functions which may on occasion be performed by police officers, none of these appear to be functions which are performed exclusively by members of the police force. The job specifications for the civilian titles petitioned by the PBA show that they “greet persons entering the station house” and assist persons “with problems of a non-police nature” (Precinct Receptionist); search and watch female prisoners, attend to personal needs of female prisoners and maintain cleanliness of their cells (Police
Decision No. 22-78 16 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 Attendant (Women)(CETA)); and regulate traffic at an assigned school crossing ((School Crossing Guard)(CETA)). The mere performance of these duties, some of which may have been performed by some uniformed police officers, does not provide a sufficient basis for including civilian personnel in a unit with uniformed members of the police force. A comparison of wage rates applicable to the employees discussed above is helpful. Patrolmen and policewomen are paid, on an average, $16,116 to $17,858 per annum. All the civilian employees in the instant case are paid at much lower rates. School Crossing Guards are paid $2.80 to $3.75 per hour, and are limited to a maximum of 5 hours work per day on school days. Police Attendants earn from $8,550 to $9,600 per annum, and Precinct Receptionists are paid $2.64 per hour, not to exceed 30 hours of work per week. The Board is aware that there is a program of “civilization” which assigns certain duties in the Police Department to its civilian employees.. The civilization program has the dual purpose to “maximize the number of uniformed officers engaged in patrol and anti-crime activities” and do so within the existing budget constraints, among other conditions. 7 The Board notes 7 Executive Budget-Fiscal Year 1979 Message of the Mayor, p.67, for a discussion of the civilization program.
Decision No. 22-78 17 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 that the PBA papers herein object to the management policy of civilization. However, this Board has no jurisdiction to assess the wisdom of the City’s attempts to balance its budget by employing lower paid civilian employees to perform certain duties by way of implementing such policy. This management policy is determined by the executive and legislative branches of government. 8 Appropriate Unit Having determined that the PBA cannot lawfully be certified to represent the civilian employees in the instant proceeding, we must determine whether the DC-37 petitions should be granted. RU-624-77, Precinct Receptionist: The Precinct Receptionist job specifications state that the employee “greets persons entering the station house ... assists individuals with problems of a non-police nature and interviews them to determine specific needs ... maintains a record of all interviews ... may assist... in cases involving... children or senior citizens ... may act as an interpreter....” DC-37 seeks to add employees serving as Precinct Receptionists to Certification No. 46C-75 (as amended), a unit of clerical and related titles. The City of New York has taken no express position regarding the unit placement of employees, except to request that no new units be created. 8 NYCCBL §1173-4.3b.
Decision No. 22-78 18 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 We find that the requested unit is a unit appropriate for collective bargaining pursuant to NYCCBL §1173-5.0b(1) and Rule 2.10 of the Board. We note that the clerical unit of Certification No. 46C-75, (as amended), contains many employees who perform similar or related work. Among these are Clerks whose duties include acting as receptionists and assisting the public to locate information or assistance, and Police Administrative Aides and Police Office Associates (CETA), who perform clerical work in the Police Department, communicating information to the public and receiving-information required by the Department. Certification No. 46C-75 covers approximately 38,000 employees of whom about 27,000 are on voluntary dues check-off to DC-37. Therefore DC-37 represents a majority of the employees including the 54 Precinct Receptionists. We shall grant the petition of: DC-37. RU-630-78 Police Attendant Women (CETA): The Police Attendant (Women)(CETA) job specifications provide that the employee “searches female prisoners ... watches female prisoners... attends to personal needs of prisoners ... [maintains] cleanliness of the cells ... maintains any records....” DC-37 seeks to add employees servingas Police Attendants to Certification No. 46A-75, (as amended), a unit of social service and related titles. The City of New York has taken no express unit position, except to request that no new units be created.
Decision No. 22-78 19 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 We find that the requested unit is a unit appropriate for collective bargaining pursuant to NYCCBL §1173-5.0(b)(1) and Rule 2.10 of the Board. We note that the Social Service Unit contains many employees who perform similar or related work to that performed by the Attendants. Among these are Correctional Counselors and Juvenile Counselors who per form a wide variety of tasks related to correctional services. Certification No. 46A-75, as amended, covers approximately 12,000-employees of whom about 9,000 are on voluntary dues check-off to DC-37; therefore, DC-37 represents a majority of the employees including the 97 Police Attendants. We shall grant the petition of DC-37. School Crossing Guards Although the PBA is foreclosed from representing School Crossing Guards (CETA) for the reasons set forth above, the interventions of DC-37 and the School Crossing Guards Association in RU-627-77 must be addressed by this Board. The School Crossing Guards Association holds certification CWR 106/67 as exclusive bargaining representative of School Crossing Guards. In June 1975, however, due to the New York City fiscal crisis, all School Crossing Guards were terminated. After a time, the City obtained federal CETA funds and hired new employees to perform the duties
Decision No. 22-78 20 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 formerly performed by School Crossing Guards. It appears that these new employees, now called School Crossing Guards (CETA) and none of whom had been represented pursuant to CWR 106/67, were initially designated School Intersection Safety Associates. 9 The Association brought suit in federal court seeking, in substance, to prevent the City of New York “from using federal funds to hire non-union crossing guards.” 10 The complaint was dismissed on various grounds not relevant herein. Thereafter, the Association filed a complaint with the U.S. Department of Labor under the Comprehensive Employment and Training Act of 1973, as amended, and the applicable regulations issued thereunder by the Secretary of Labor. It was while that complaint was pending that the instant proceeding was commenced before the Board. The position of the School Crossing Guards Association before the Board in this case is that: 1)The hiring of School Crossing Guards (CETA) “was obtained through violation of CETA regulations”; 2) “the City of New York has committed an unfair labor practice in hiring these persons through CETA funds to replace School Crossing Guards on lay off”; 3) “the placement of employees who petitioned 9 School Crossing Guards Ass’n. v. Beame 77 Civ 3859-CLB (SDNY, Nov. 1, 1977) 10 Id. p.5.
Decision No. 22-78 21 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 for recognition... should in no way have any effect on the existing certificate of the School Crossing Guards Association.” 11 We note that the Association does not claim to represent, nor does it seek to represent, employees in the title School Crossing Guard (CETA). Indeed, the Association specifically contends that the unit placement of CETA employees should not affect in any way the existing certificate held by the Association. Thus, DC-37 is the only labor organization seeking certification as exclusive bargaining representative of employees in the title School Crossing Guard (CETA). We find that the issues raised by the Association are not a bar to certification of DC-37 to represent the CETA employees. The Board of Certification has no jurisdiction to pass on those of the Association’s objections which relate to violations of the Comprehensive Employment and Training Act and the regulations of the U.S. Department of Labor, nor does this Board exercise jurisdiction over improper labor practices. 12 In that connection, we note that although the Association alleges that the City’s hiring of School Crossing Guards (CETA) constitutes an improper practice, the 11 The Association objected to the petition of PBA on certain additional grounds. In view of our disposition of the PBA petition, it is not necessary to discuss those contentions. 12 NYS Civil Service Law, Article XIV, §§205.5(d) and 212.1.
Decision No. 22-78 22 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 Association has not filed a complaint with the Public Employment Relations Board alleging a violation of law. We note further that on April 18, 1978, an Administrative Law Judge of the Labor Department issued a comprehensive and wide-ranging decision in the proceeding brought by the Association to challenge the hiring of CETA employees. 13 The Judge found, inter alia: On or about June 19, 1975, the City of New York’s school crossing guards program was terminated because of a fiscal crisis. By letter dated June 19 1975, the police commissioner informed each school crossing guard as follows; “Your termination is effective June , 1975. Your name will be kept on file for consideration for future hiring when fiscal conditions permit”. (emphasis supplied) The Judge found that between June 1975 and the fall of 1977, the City made efforts to have other employees assume school crossing duties, but “many intersections received either no coverage or at best sporadic coverage.” The School Crossing Guards Association “made numerous attempts to obtain further funding for their jobs”; however “there were no funds available to reestablish the school crossing guards program.” Finally, on April 28, 1977, the Report of the Committee of Finance, City of New York, recommended that CETA funds be sought to hire school crossing guards. The Administrative Law Judge found that Federal 31 School Crossing Guards Association, Case No. 78-CETA 108 (1978).
Decision No. 22-78 23 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 Law did not prohibit the hiring of CETA personnel to perform school crossing guard functions because “Section 7 [of 29 U.S.C. §845 (c)] protects ‘laid off’ persons only, not those who have been terminated. The lack of Civil Service recall status and the letter of release received by members of the School Crossing Guards Association mitigate against any finding that they were on layoff.” The Judge concluded: The facts as presented show absolutely no overt or covert actions by the City of New York to lead one to a conclusion that the school crossing guards program was terminated in-anticipation of receipt of federal CETA funds. While it is true that the only hope members of the School Crossing Guards Association had to return to work was the receipt of federal funds, their termination was clearly due to the City of New York’s fiscal crisis and not the anticipation of federal funding. (emphasis supplied) There has been no showing that the project at issue would have been funded by local monies in the absence of federal funds. The Judge recommended that no action be taken by the Labor Department to terminate the CETA project as had been requested by the Association. In summary, we have found that the School Crossing Guards Association does not seek to represent the School Crossing Guards (CETA). We have further found that there is no bar to the petition of DC-37 to represent these employees. District Council 37 represents, in Certification No. 46A-75, (as amended), many employees in various
Decision No. 22-78 24 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 titles who perform work similar or related to the work of School Crossing Guards (CETA). Among these are Community Assistants who are often assigned to perform work identical to that of the School Crossing Guards (CETA). Therefore, we find that the employees in Certification No. 46A-75, (as amended), together with the School Crossing Guards (CETA) constitute an appropriate unit for collective bargaining within the meaning of NYCCBL §1173-5.0b(1)and Rule 2.10 of the Board. We find that Certification No. 46A-75, (as amended), covers approximately 12,000 employees of whom approximately 9,000 are on voluntary dues check-off to DC-37. Therefore, DC-37 represents a majority of the employees in the unit, as amended, including the 521 School Crossing Guards (CETA), and we shall grant the requested amendment. 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 petitions of the PBA in Docket Nos. RU-626-77, RU-636-78, RU-637-78 and RU-638-78 be, and the same hereby are, dismissed; and it is further ORDERED, that the applications to intervene in RU-627-77 filed by DC-37 and the School Crossing Guards Association be, and the same hereby are, granted; and it is further ORDERED, that the objections raised by the School Crossing Guards Association upon its intervention in RU-627-77 be, and the same hereby are, dismissed; and it is further ORDERED, that Certification No. 46A-75 (as amended) held by DC-37 be, and the same hereby is, further amended to include the titles of School Crossing Guard (CETA) and Police Attendant (Women)(CETA), subject to existing contracts, if any; and it further
Decision No. 22-78 Docket No. RU 624-77, RU-626-77, RU-627-77, RU-630-78, RU-636-78, RU-637-78 RU-638-78 ORDERED, that Certification No. 46C-75 (as amended) held by DC-37 be, and the same hereby is, further amended to include the title of Precinct Receptionist (Per Hour), subject to existing contracts, if any. DATED: New York, N.Y. May 15, 1978 ARVID ANDERSON CHAIRMAN WALTER L. EISENBERG MEMBER ERIC J. SCHMERTZ MEMBER The titles and title code numbers of the employees affected by this decision are as follows: Police Attendant (Woman)(CETA) 09737 School Crossing Guard (CETA) 09755 Precinct Receptionist (Per Hour) 10140
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