OFFICE OF COLLECTIVEBARGAINING BOARDOF CERTIFICATION -:" --~ x In the Matter of the Application -of-THE CITYOFNEWYO~X, Petitioner, To Consolidate certainCertifica-tions issued to DEC ISIONNO. 28-78 DISTRICT COUNCIL 37, AFSCME, AFL-CIO -and-D OCKET NO. RE-88-78 NURSES ASSOCIATIONOF THE DEPART~ENT OF HEALTH -----~ ---~ --~ -~ --x DECISIONANDORDER This matter was commenced wi t h the fi l ing of the petitionof the City of NewYork, by i t s Offi ce of Municipal Labor Rel at ions, on January 30, 1978. ~he pet ition seeks an order of t hi s Board consolidating a col lect ive bargaining unit of approximately 1.800 employees in some fifty-seven publ ic health servi ce titles covered by Cert i -fication 46F-75 (as amended), (hereinafter "Unit I") , with a collect ive bargaini ng uni t of approximately ninety-one public healthnurses -Regi st ered Nurses (Per Session) covered by Cert i fi cation 9 NYCDL No. 38 (as amended) . (hereinafter "Unit II"). Unit I is represented by Di st ri ct Council 37, AFSCME, AFL-CIO (herei naft er "D.C. 37"); Uni t II i s represented by Nurses Associ at ion of t~e Department of Health of the Ci ty of New York (herei naf t er I' the Associ ation!')
DECISIONNO. 28-78 DOCKET NO. RE'-88",78 2 D.C. 37 has taken no positionwith regard to the petition. The Association filed its Answer on February 10, 1978, opposing the petitionand demandin~ that the Association be afforded an "opportunity , •• tobe heard." Duly noticed oral argument was held before the Board at its offices on May 1, 1978', at which representatives of the Cityof NewYork and of the Association appeared and were heard, respectively, in support and in in opposition to the unit consolidation requested in the petition. positions of 'the Parties The Citymaintains that employees in Units I and II performrelatedwork, have simi l ar educat i on, experience and skills, and thus share a community of interest. The petitionalleges, moreover, that the proposed consolidation, by reducing the number of units wi t h whi ch the Citymust bargain and the number of contracts it must negotiate and administer, would fost er the impl ement at i on of a uniform labor relations policy, effect economi es of time, money and effort, promote effi ci ency in the operation of the public service and further sound labor relations.
DECISIONNO. 28-78 DOCKET NO. 'RE~88-78 3 The Associ at i on argues t hat i t has acted as collective bargaining representative of its members in full conformity wi t h all requirements of t he NewYork City Col l ect i ve Bargainina Law (the "NYCCBL") and t he Re vised Consolidated Rules of t he Offi ce of Col l ect ive Bargaining; t hat the proposed consol i dat ion would wrongful l y deprive the "Association of i t s right to cont inue to funct ion"; would contravene the pol i cy underlying t he NYCCBL as set forth in §1173-2. 0 t hereof; and would violat e t he provisions of §1173-4. l of the NYCCBLqrant -ing to public employees ri ght s of sel f-or9ani zat ion and the right to bargai n col l ect ively t hrough representatives of thei r own choosing. It i s cl aimed by the Association that t he pet ition herei n "att empt s to depri ve the respon-den~' of "t he ful lest freedomof exerci si ng t he rights" grant ed under t he NYCCBL, and cl aims that t he term "corrunun ity of interest of the employees" as used in Rule 2.10 of t he Rules of t he OCB, which deals with det erminat i on of appropriate units, refers to employees not yet cert i fied and n ot to employees, such as t hose represented by respondent r "who have al ready obt ai ned cert i fi cation" and whose "interests . have for years been ful l y and duly pro-t eet ed " The Associ at ion al leaes t hat it "has l arge vested int erests" which woul d be disrupt ed by t he grant of the Ci tyls peti~ion and claiffis ~~at Associat~c~ members would be depri~ed of propert y richts without due ~rocess of law.
DECISIONNO. 28-78 DOCKET NO RE-88-78 4 Discussion The NewYork City Collective Bargaining Lawwas enacted pursuant to the option createdby section 212 of the Taylor Lawunder which local governments are permitted to adopt provisions and procedures "substantiallyequiva-lent" to the Taylor Law. It is the clear purpose of both laws to promote collective bargaining as the preferredmeans of regulating the relationships between governments and public employees; and, in furtherance of this purpose, to grant rights of organization, choice of representatives and other protections of pUblic employee exercises of their rights (NYCCBL 51173-2.0; Taylor Law 5200). There is, however, no evidence of legislative intent to protect unions, as such, or to vest unions with special rights or prerogatives as a result of certification. In other words, the essential concerns in the issuance of any certification relate to protectionof public employee rights of organization and collective bargaining on the one hand, and, on the other, to the protection of the public interest, of effi ci ency in government and the maintenance of a sound systemof municipal labor relations NYCCBL 51173-5.0 b). Any benefit which may redound to a union in the process is incidental. Aunion may thus
DECISION NO. 28-78 5 DOCKET NO. RE-88-78 validlymaintain any given position, argue effectively for any particular resolution of a question of representation, only to the extent that the end which it seeks corresponds both with the wishes of a majority of the affected employees and with the maintenance of a rational and workable labor-management relationship. One of the reasons for the i ncl usi on in t he Ta ylor Lawof provision for a separate and di fferent, al bei t "substantially equivalent," NewYork City public sector labor relations law, was the recognition t hat New York Ci ty was far in advance of the rest of the st at e in the int roduc-tion of collective bargaining practices in public sector employer-empl oyee relations. Mayoral executive orders predat -ing the Taylor Lawand t he NYCCBL, for instance, had permi t t ed NewYork Ci t y employees to organize and join labor unions for more t han t en years prior to enactment of t hose laws. That right had been exerci sed to such a degree that by the t ime the Taylor Lawwas enact ed, mandat ing that al l publ i c empl oyees in NewYork State be afforded the right to organize and joi n uni ons and to bargain col lect ively wi t h their employers, there were already in NewYork City approximately 500 bargaining units of municipal empl oyees. Some of these units were affi l i -ates of unions representing ot her muni ci pal employee units;
DECISIONNO. 28-78 DOCKETNO. RE-88-78 6 others were purely ad hoc, independent associations. Certification by the NewYork City Department of Labor in the pre-Taylor Lawperiodwas based toa considerable degree on the buildingblock policyof encouragi ng union organization. Thus, extent of organization by t i t le and department was a ma jor factor i n unit det ermi nat ions. Representati ve status was thus achieved, not on the basis of any such comprehen-si ve criteria as in the present statute, but upon t he degree of success enjoyed by a union seeking formal representation st at us in i ts organizat i onal efforts up t o t he time of certification. Thus, whereas PERB, the agency whi ch administers the Taylor Law, was able to decree, shortly after the l awcame int o effect, that collective bargaining at the state level would be conduct ed wit h sixbargaining uni ts,l the Office of Collecti ve Bargaini ng commenced its admi ni st ra-ti on of the NYCCBLwi th an exi st ing bargai ning st ructure of many hu ndreds of bargaining units. Two things were apparent to the drafters of the NewYork City l aw: first, that thi s patchwork st ructure must be set in order bot h in t erms of reduction of the number of uni t s and of the composi t ion of un its; and; second, that the restructuring woul d necessar-ilybe a slowand gradual process. I Employees of the St at e of NewYork, excl udi ng professional emp loyees of the State U~iversitv and members of the State Pol ice were initial l v dealt with-in NewYork Stat e, ~2SCME -and-CSEA, 1 PERB 424, and the Court of Appeals affi rmed the fi~ding in CSEAv Helsby, 25 NY2d 842 (1969) .
DECISIONNO. 28-78 7 DOCKET NO. RE-88-78 The legislative intent as to both points is evidenced in the provisions of Section 1173-10.0 of the NYCCBL,which reads, in pertinent part, as follows: c. certificates or designations issued bythe depart::Irent of labor prior tothe effectivedateof this chapter and in effect on suchdate shall ranain ineffect until terminatedby the boardof certification pursuant to itsrules. Nothing cont.ainedinthis subdivision shall limit ther:ower of theboard of certification to detennine bargainingunits differing fran those determinedby the department of labor. The-quoted l anguage cl earlycont emplates changes in the pre-act bargaining st ruct ure and aut hor i zes this Board to make such changes;2 t he provisi on al so recognizes the need for an order lyadaptation of exist i ng st ruct ures and relati onships to the condi t i ons created by enactment of t he newlaws, and, inst ead of mandating the immediate and chaotic invalidat ion of al l pre-act certifications, directs that existing certifi cations cont i nue in effect until changed by the Board. We have acted i n pursuance of thi s mandate and have reduced t he number of units wit h which the Ci ty must negot i ate fromthe approxi mately 500 whi ch existed when t he NYCCBL became ef fective to 87 units at t his t i me. 2 Decisions Nos. 17-70, 62-71.
DECISIONNO. 28-78 DOCKET NO. RE-88-78 8 In our earliest decisions, we recognized the legisla-tivemandate for a rationalization of unit composition. We then commenced a policyof reducing the great number of units and creatednewunits based on broad occupational groups. We have constantly resisted fragmentation of units and have favored the certificationof large comprehensive units including as many employees and titles as may practicablyand effectively be expected to bargain as single entities. Our well-settled policy favoring the consol i dat i on of units is clearly consistent 3 with these ends and in conformity with the l egi sl at ive intent. Unit II, the uni t represented by t he respondent Association, was cert i fi ed by the NewYork Ci t y Department of Labor in 1967, ~rior to enactment of the NYCCBL. Nofindingas t o the appropri ateness of that uni t pursuant to §1173-10.0c has ever been made by this Board. The City of NewYork, as public employer under the terms of the NYCCBL and of t he Taylor Law, i s entitled to a fi nding as to the appropriateness of t he unit here in quest i on, and by its pet i t i on herei n nowseeks such a finding. The aut hori t y and duty of this Board to make such findings in conformi ty with §1173, l O.Oc is i n no way diminished by any of t he arguments advanced by respondent Association. We wi l l t here-3 District Council 37, AFSCME _ and -Ci ty of New'York , Decision No. 68-74: "Indeed, this statutoryresponsibilityembraces not onlythe certificationof newrepresentatives inappropriatebargain-ing units, but alsoentailsa duty torronitor and reexamine on a oont inuing basis all existing baraainina units witha vi~N topromoting efficient operat ion of the publ ic service and sound labor relations."
DECISIONNO. 28-78 D OCKETNO. RE-88~78 9 fore proceed to consideration of t he unit finding sought in the petition. All of the employees represented by the respondent Association are RegisteredNurses (Per Session) employed by the NewYork City Department of Health. Unit II, the uni t withwhi ch the City seeks to have Unit I consolidatedconsist s of various health care t i t les such as Medical Record Librari ans , Institutional Inspectors, Psychologi st s, Anaesthet i sts, Public Health Sanitarians, and other Public Heal t h t i t l es, i ncluding Public Health Nurses (Session). The l at ter' are i n almost every detail, identical wi t h the Regi stered Nurses (Per Session), who comprise the uni t represent ed by respondent Association. The respective job specificat ions for the two t i t l es read, i n pertinent part , as follows:
DECISIONNO. 28-78 10 DOCKET NO. RE-88-78 . . .. . .. ", ,. ' .-: .~':" '-' REGISTERED NURSE (PER SESSION) Under supervision, performs professional nursing duties in a public health nursing programina school or clinic setting. QualificationRequirements New York State Registered Professional Nur se License. Lines of Promotion None, non-competitive. PUBLIC HEALTHNURSE (SESSION) Under supervi si on, performs public health nursing functions in a general public health nursing program. Qualification Requirements New York State license as a Registered Nurse and certificationas a Public Heal t h Nurse (Grade III). Lines of Prcmotion None, non-competitive.
DECISIONNO. 28-78 DOCKET NO. RE-88-78 11 The similarities between the Regi st ered Nurse (Per Session) and Publi c Health Nur se (Session) titles approach the point of identity. Both require candi dat es to be licensed Registered Nurses; t he duties and functions are almost identical; bot h are in t he non-competitive cl ass of the civi l Service. Far more disparate t itles are incl uded i n single units as a matter of regul ar pract i ce by this Board as wel l as by analogous l abor relat ions agenci es such as t he Nat ional Labor Relat ions Board and the NewYork State Public Employment Rel ations Board. 4 We find that t he emp loyment of these tit les i n the City' s heal th services, their simi lar public healthnursi ng funct i ons and dut ies , t heir identical educational backgrounds and licensed profess ional st at us constitute a communi tyof interest such as to warrant their i ncl usi on in a single unit. Hi st or ical ly, the tit l e Registered Nur se (Per Session) has bargained as a separate, single t i t l e unit . Intervenor -Associ at i on m aintains that t he major i ty of t hese empl oyees woul d favor a continuation of this condi t i on as cert i fied by the Department of Labor; assuming, arguendo, that t he 4 In one such case, City of NewYork and D.C. 37, AFSCME, Decision No. 31-74, we sa~d: "As for the issue of camnmityof interest, whilethereare differences in job duties and no common lineof proaression or transfer franarnono the various lob titles -..:e find suchCifferences~no bar tocon~lida.tion . 'I
DECISIONNO. 28-i8 DOCKETNO. RE-88-i8 12 Intervenor Association is correct that such would be the choice of a majorityof Registered Nurses (Per Session), we do not accept the further contention of the Association that this preference on the part of its members i s a bar to the grant of the petitionherein. The Associ at i on recognizes that the statutoryguarantee to public employees of "the fullest freedomof exerci sing the rights grant ed" under the NYCCBL i s coupled in §1Ii3-5.0 b(l) wi t h the proviso that i t be "consistent with the efficient operat i on of the publ i c service and sound l abor relations" but simpl y denies t hat t here i s any inconsi st ency with the terms of the proviso in the separate cert i fi cat ion of the unit of Regi s-tered Nurses (Per Session). With this we do not agree. Applying this reasoning on a general basis rather t han i n the si ngl e case now before us, we woul d have l eft largely undisturbed t he more than 500 units i n exi st ence when we began our st ewardship of municipal l abor rel at ions. Each col lect ive bargaining uni t i s one more ent i tywithwhich the Ci tyof NewYork must bargai n col l ect i vel y; as to each there i s a separate cont ract whi ch must be admi ni st ered by the Ci ty; each such cont ract generat es separate grievances and requires discrete interpretation and arbitration; all of which tends to produce di ssimi l ar terms and conditions of employment for essent i allysimi l ar employees.
DECISION NO. 28-78 DOCKET NO. RE-88-78 13 It is our viewthat it is precisely this kind of duplicate activityand disparate result which is intended to be eliminatedby the quoted proviso of §1173-5.0 b (I). It is this viewwhich has informed our well-settledpolicy of favoring the consolidationof pre-act bargaining units, and the effort we have consi st ent lymaintained throughout our administration of the NYCCBL by reducing the number of bargaining units, resi st ing the fragment at ion of uni ts and seeking t he development of broad, comprehensive mul ti-ti t l e units. 5 In t he formul at ion and i~plementation of t his pol i cy, while giving due wei ght t o i ssues of communityof interest and t he wi shes of affected employees , we have also mai nt ained the balance, as mandat ed by our st at ut e, bet ween these consi der -ations and those of promoting t he effi ci ent operat ion of t he public servi ce and sound labor rel at i ons. In contempl at ion of this pol i cy and pract ice as wel l as the underlying l egis-lative intent of t he draft ers of t he NYCCBL, uni t s such as the single-title uni t represented by t he Intervenor are clearly inappropriate. 5 As we sai d i n Deci sion No. 31-74, supra: "The Boardhas foundthat such policyob3ect ives (consolidations) are justified by theneed to simplify and reduce the task of n egotiations, and the desirabilityof achievinggreater uni -formity of condit ions anong similar classes of ennlovees ,loose ccrrmuni tvof interests are similar and not diverse (Cecisions Nos. 44-68 and 41-73) . "
DECISIONNO. 28-78 DOCKETNO. RE-88-78 14 We find that Certification No. 46F-75 (as amended), covers approximately 1,800 employees of whomapproximately 1,400 are on voluntarydues checkoff to D.C. 37. Therefore, D.C. 37 represents a majorityof the employees in the unit, as consolidated herein, incl uding the 91 Regi st ered Nurses (Per Session). o RDE R NOW, THEREFORE, pursuant to the powers vest ed i n the Board of Cert i fication by t he NewYork Ci ty Col l ect ive Bargaining Law, it i s hereby ORDERED that Certification 9 NYCDL No. 38 (as amended) and CertificationNo. 46F-75 (as amended) be, and the same hereby are, combined and consolidated so as to const i tut e one bargai ni ng unit (to be ci t ed by t he present Decision Number), consi st ing of the tit les set forth in the Appendi x to thi s Order ; and it is hereby
DECISIONNO. 28-78 DOCKETNO. RE-88-78 15 CERTIFIEDthat District Council 37, AFSCME, AFL-CIO, is the exclusive representative for the purposes of collective bargainingof all employees in the consolidatedunit. DATED: NewYork, NewYork May 31, 1978. ARVIDANDERSON Ch a i r man WALTER L. EISENBERG Me mb e r ERIC J. SCHMERTZ Me mb e r
DECISIONNO. 28-78 DOCKET NO. RE-88-78 16 AP pend i x The titles and titlecode numbers of the employees affectedby this decision are as follows: Anaesthetist 53101 Assistant Director of Rehabilitation 60385 Assistant Public Health Adviser(C.D.C.)51190 AUdiologist 51238 Chief psychologist 52170 Communicable Disease Case Finder (CETA)09363 Consultant Public HealthNurse (including specialties) 51012/21 Dental Assistant 50101 Dental Hygienist (including CETA) 50102. 09446 District Supervising Public Health 51065 Nurse Doctor's Aide (CETA) 09226 Environmental Health Technician 51380 HealthAide 51102 Institutional Inspector 31415 Junior Public Health Nurse 51008 Medical Record Librarian 50811 Medical Utilization ReviewAnalyst 00121 Nutritionist (including JOP) 50410. 09534 Nutritionist Trainee 50405 Occupational Therapist 51210 Patient Care ReviewAnalyst (CETA) 00266 Pediatric Nurse Associate 95440 Physical Therapist 51211 Physician Assistant 00173 Physician's Assistant (incl. CETA) 52700, 09297
DECISIONNO. 28-78 DOCKET NO. RE-88-78 17 Principal Institutional Inspector 31465 Principal Nutritionist 50465 Principal Public HealthSanitarian 31260 Psychologist 52110 Public HealthAdviser (C.D.C.) 51191 Public HealthAssistant (incl. CETA) 81805, 09451 Public HealthEpidemiologist 51181 Public HealthNurse 51011 Public HealthNurse (Session) 51006 Public Health Sanitarian 31215 Public HealthSanitarianTrainee 31211 Registered Nurse (Per Session) 51003 Rehabilitation Counselor 51213 Senior Anaesthetist 00124 Senior Institution1 Inspector 31435 Senior Medical Record Librarian 50836 Senior Medical Utilization Review 00275 Analyst Senior Occupat ional Therapist 51235 Senior Physical Therapist 51236 Senior Psychologist 52135 Senior Public HealthAdviser (C.D.C.) 51192 Senior Public Health Sanitarian 31235 Senior Rehabilitation Counselor 51215 Senior Speech and Hearing Therapist 00195 Speech and Hearing Therapist 51212 SupervisingAudiologist 51240 Supervising Dental Assistant 00221 Supervising Institutional Inspector 31455 Supervising Medical Record Librarian 50837 SupervisingNutritionist 50460 Supervising Public Health Nurse 51060 Supervising Public HealthSanitarian 31255 Supervising Therapist 51241
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.