CEU, et. Al v. City,30 OCB 41 (BOC 1982) [41-82 (Cert.)] OFFICE OF COLLECTIVE BARGAINING BOARD OF CERTIFICATION ------------------------------------X In the matter of CITY EMPLOYEES UNION, LOCAL 237, IBT -and-THE CITY OF NEW YORK ------------------------------------X DECISION NO. 41-82 COMMUNICATIONS WORKERS OF AMERICA, DOCKET NOS. RU-829-81 AFL-CIO RU-833-81 -and- RU-843-81 RU-850-81 THE CITY OF NEW YORK RU-861-82 ------------------------------------X DISTRICT COUNCIL 37, AFSCME, AFL-CIO -and-THE CITY OF NEW YORK ------------------------------------X In the Matter of DISTRICT COUNCIL 37, AFSCME, AFL-CIO -and-THE CITY OF NEW YORK ------------------------------------X In the Matter of COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO -and-THE CITY OF NEW YORK ------------------------------------X APPEARANCES: Bert Rose For: City Employees Union, Local 237 Steven Weissman, Esq. For: Communications Workers of America Karen Smith, Esq. For: District Council 37, AFSCME, AFL-CIO
DECISION NO. 41-82 2 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 Gary Dellaverson, Esq. For: The City of New York DECISION AND ORDER On September 11, 1981, City Employees Union, Local 237, I.B.T. (hereinafter Local 237), filed a petition to add the title of Sanitation Enforcement Agent (SE;.) to Certification No. 67-78 (as amended). This petition was docketed as RU-829-81. On December 12, 1981, Local 237 filed an amended petition withdrawing its request for accretion and submitting a request for representation based on a showing of interest. This second request was amended on January 1, 1982 to include the titles of Associate Sanitation Enforcement Agent and Principal Sanitation Enforcement Agent. On October 2, 1981, Communications Workers of America, AFL-CIO (hereinafter CWA), filed a petition to add Sanitation Enforcement Agent to Certification No. 25-74 (as amended). This petition was docketed as RU-833-81. On February 1, 1982, CWA filed an additional petition to add Associate Sanitation Enforcement Agent and Principal Sanitation Enforcement Agent to Certification No. 26-74 (as amended). This petition was docketed as RU-861-82. On October 16, 1981, District Council 37, AFSCME AFL-CIO, (hereinafter D.C. 37), filed a petition to add Sanitation Enforcement Agent to Certification No. 46C-75 (as amended). This petition was docketed as RU-843-81. An amended petition was filed on November 4, 1981, requesting that this title be added
DECISION NO. 41-82 3 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 to Certification No. 28-78 (as amended). On January 26, 1982, D.C. 37 amended its petition to include the titles of Associate Sanitation Enforcement Agent and Principal Sanitation Enforcement Agent. On November 18, 1981, D.C. 37 filed a petition to add Compliance Agent (Sanitation) to Certification No. 37-78 (as amended). This petition was docketed as RU-850-81. These five petitions, all relating to titles unique to the Department of Sanitation, were consolidated by order of the Board of Certification (hereinafter the Board) for the purpose of determining the issue of appropriate unit placement for these titles. Hearings were held on March 9, 29, April 26 and June 3, 1982, at which the parties were given a full opportunity to present evidence and arguments relating to unit placement for these titles. Briefs were submitted on July 1, 1982, at which time the record in this case was closed. BACKGROUND The job title of Sanitation Enforcement Agent was created as part of the Department of Sanitation’s program of civilianization. A number of the duties assigned to the SEA’s were performed previously by Sanitation Police. When the petition was filed there were 63 employed in the SEA title. City records as off June 30, 1982 show 1121 SEA’s and 7 Associate Sanitation Enforcement Agents.
DECISION NO. 41-82 4 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 The draft job specification for the SEA provides: Duties and Responsibilities Patrol an area assigned in order to enforce laws, rules and regulations Prepares and issues summons for violations of: New York City Health and Administrative Codes New York State Public Health Law (Canine Waste) New York State Vehicle Traffic Laws New York City Traffic Regulations Tags abandoned vehicles and completes the required reporting procedures Testifies at hearing offices and court Prepares required reports Operates portable and vehicle radios Operates a motor vehicle Directs and controls traffic at assigned locations to maintain efficient and safe flow of vehicles and pedestrians during snow emergencies or as the need arises Performs related work There are no formal education or experience requirements; however, a valid New York State Motor Vehicle driver’s license is required. The direct line of promotion is from “none” to Associate Sanitation Enforcement Agent. The salary range is from $12,001 to $13,047. Job specifications for Associate Sanitation Enforcement Agent and Principal Sanitation Enforcement Agent have not yet been issued by the Department of Personnel. No specification for Compliance Agent (Sanitation) has been issued; however, a draft class specification under which the Department operates was placed into evidence by D.C. 37.
DECISION NO. 41-82 5 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 This specification provides as a “General Statement of Duties and Responsibilities” that: Under supervision, performs work in the conduct of inspections to assist in the enforcement of the Sanitary Code of the City of New York; performs related work. Under “Examples of Typical Tasks” the specification states: Investigates reported violations of the Sanitary Code Performs comprehensive reports of findings of investigations and inspections Interviews witnesses in regard to violations Investigates abandoned cars. Acts as liaison between Police Department and other governmental agencies in regard to the above May be called to testify or give affidavits in court and at Department hearings Receives and dockets telephone complaints from the public Qualification requirements are graduation from a senior high school or evidence of having passed an examination for a high school equivalency diploma and one (1) year experience in inspectional work or report writing. In addition, a valid New York State motor vehicle operator's license is required.
DECISION NO. 41-82 6 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 POSITIONS OF THE PARTIES Local 237 Although Local 237 originally filed a petition seeking to accrete the Sanitation Enforcement Agent title to certification No. 67-78 (as amended), which covers a maintenance custodial, inspectorial, security officers and skilled crafts unit, it subsequently withdrew its request for accretion and filed an amended petition seeking representation based on a showing of interest among Sanitation Enforcement Agents (SEA’s). Local 237 contends that its representation petition should be given priority and that election by the employees concerned is the proper way to ascertain representation in an equitable fashion. Local 237 argues that accretion denies employees a choice as it becomes a legal question rather than a question of representation. Local 237 indicates that testimony offered during the hearing by all three unions shows a similarity in duties between the Sanitation Enforcement title and the titles currently represented by the three unions and that the employees in this title enjoy a community of interest to a degree with members of any of the three bargaining units in question. Local 237 contends that since the strength of the community of interest is fairly similar in all three cases, a representation election is appropriate. D.C. 37 D.C. 37 seeks-to add Sanitation Enforcement Agent, Associate Sanitation Enforcement Agent and Principal Sanitation Enforcement Agent to Certification No. 28-78 (as amended)
DECISION NO. 41-82 7 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 covering a health and recreational unit, including the title of Environmental Health Technician (BHT). It also seeks to add Compliance Agent (Sanitation) to Certification No. 37-78 (as amended), covering a social service, investigative and related unit. D.C. 37 also noted that Local 237 has made no accretion claim and, therefore, the contest for accretion should lie between the competing claims of D.C. 37 and MIA. D.C. 37 contends that, while both D.C. 37 and C%IA have a colorable claim for accretion, the evidence presented shows that D.C. 37 has the superior claim. D.C. 37 asserts that the Sanitation Enforcement titles are more closely related to Environmental Health Technician and Park Enforcement Agent which titles they represent. 1 D.C. 37 pointed out that all the above mentioned titles are trained in the Sanitary Code, New York City Health Code and the Administrative Code. All have both investigative and enforcement powers and discretion on whether or not to issue a summons. All receive similar training in the vehicle and traffic laws. The Environmental Health Technician issues summonses for violations of the Health Code pertaining to refuse disposal, illegal dumping, 1 Park Enforcement Agent, an office title in the Department of Parks and Recreation, is assigned to Urban Park Rangers who are detailed to enforcement duties. However, the Park Enforcement Agents, like the other Urban Park Rangers, are now included in Certification No. 38B-78, covering a custodial and maintenance unit, which is a different unit than the one D.C. 37 seeks here for the purpose of accreting the Sanitation enforcement Agents.
DECISION NO. 41-82 8 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 improperly covered containers, and rodent and insect infestation for both commercial and residential establishments, as does the SEA. D.C. 37 adds that Park Enforcement Agents have similar duties to SEA’s in that they issue summonses for canine waste, write reports and testify at hearings. PEA’s also wear uniforms and are assigned portable radios, cars and work various shifts. D.C. 37 argues that, while the salary ranges of Sanitation Enforcement Agent and Traffic Enforcement Agent are similar and a cursory look at their duties shows some similarity, in fact the actual expertise and duties vary greatly for each title. D.C. 37 contends that the title of Compliance Agent (Sanitation) is a successor to Sanitation Aide (CETA), a title formerly represented by them in Certification No. 37-78 (as amended), 2 and it should therefore be accreted to the bargaining unit referred to in that Certification, a social service and investigative unit. D.C. 37 noted that no other union prior to, during or after the hearing has sought to represent the Compliance Agent (Sanitation) title, nor has the City opposed D.C. 37’s petition for accretion. 2 Decision No. 14-82 deleted all CETA titles from all pertinent certifications.
DECISION NO. 41-82 9 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 CWA CWA seeks to add Sanitation Enforcement Agent to Certification No. 25-74 (as amended) which covers the titles Traffic Enforcement Agent (Levels land 11) and Parking Enforcement Agent; also to add Principal Sanitation Enforcement Agent and Associate Sanitation Enforcement Agent to Certification No. 26-74 (as amended) covering the titles of Associate Traffic Enforcement Agent and Senior Parking Enforcement Agent. It is CWA’s contention that the basic duties of Sanitation Enforcement Agent and Traffic Enforcement Agent are similar, although they are responsible for the enforcement of different regulations and codes. in support of this position, CWA contends that the employees in these two titles have identical minimum salaries, limited educational requirements, wear uniforms, are assigned portable radios and vehicles(and follow comparable “Pre-tour” routines. CWA indicates that much of their time in the field is devoted to patrol for violations and issuance of summonses. CWA asserts that both titles exercise a certain degree of discretion in deciding whether or not to issue a summons, both testify at administrative proceedings, and all receive similar training. CWA argues that there is no significant difference in the way the Sanitation Enforcement Agents and Traffic Enforcement Agents carry out their field assignments. The Sanitation
DECISION NO. 41-82 10 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 Enforcement Agent utilizes personal service as well as “nail and mail”, while the Traffic Enforcement Agent who patrols for parking violations generally leaves the summons on the illegally parked vehicle, and the Traffic Enforcement Agent who directs traffic issues summonses for moving violations by personal service. CWA claims that investigative work performed in the field by both groups of titles takes up an insignificant part of the working day but is essentially similar. The Sanitation Enforcement Agent is confined to locating a responsible party after a violation has been detected, and rarely does such investigation last more than fifteen minutes. CWA noted that the Traffic Enforcement Agent may also be called on to investigate citizen complaints. CWA contends that the record evidence likewise establishes that the duties of the Associate Sanitation Enforcement Agent and Associate Traffic Enforcement Agent are similar. Both prepare their subordinates for field patrol by conducting roll call, inspecting uniforms, assigning radios, reviewing new departmental orders, directives and citizen complaints. Both spend the major portion of their day in the field supervising their agents and, when necessary, responding to emergency calls for assistance. They investigate complaints, recommend discipline, train and evaluate their subordinates. CWA concludes that these titles are occupationally related and have markedly similar job duties.
DECISION NO. 41-82 11 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 CWA alleges that the record evidence fails to establish an adequate community of interest between the Sanitation Enforcement Agent series and the Environmental Health Technician (EHT) title presently included in D.C. 37’s Health Services Unit. CWA points out that the EHT’s must have an Associate Degree in science or applied science, or have completed 60 college credits with a minimum of 12 credits in Environmental Science, Biology, Chemistry, Physics or Mathematics. CWA adds that the FET’s do not wear uniforms, do not patrol an assigned area, and are not routinely assigned portable radios. CWA also points out that the EHT’s have Peace Officer status and may arrest a perpetrator, condemn, embargo and confiscate adulterated food stuffs, while the SEA’s have none of such powers. CWA also points out that only about 35 EHT’s are employed by the City while there are 112 SEA’s now working for the City. CWA also argues that there are virtually no similarities between the duties of a Sanitation Compliance Agent and an SEA, since the testimony shows that the Sanitation Compliance Agent spends most of his time checking the condition and identification of abandoned vehicles after they have been towed to the City contractor’s yard. Thus, the Sanitation Compliance Agent does not wear a uniform, patrol designated areas, or use a portable radio or a vehicle to carry out his duties. CWA also points out the dissimilarities between the duties of the Park Enforcement Agent and the SEA’s. The Park
DECISION NO. 41-82 12 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 Enforcement Agent has Peace Officer status with responsibilities for crowd control, assaults and muggins, none of which are the responsibilities of the SEA’s. CWA pointed out that Local 237 failed to present any evidence relative to the job classifications which it presently represents. CWA submits that there is no record evidence which would allow the Board to find that the Sanitation Enforcement titles could properly be included in any bargaining unit represented by Local 237. The City The City argues that the Principal Sanitation Enforcement Agent petitions should be dismissed since a job specification has not been issued for this title by the Department of Personnel and there are no incumbents serving. The City contends that employees in the title of Sanitation Enforcement Agent, Associate Sanitation Enforcement Agent and Compliance Agent (Sanitation) should not be the subject of an election between various competing unions. The City does not consider accretion petitions as adequate showing of interest to trigger an election. The City contends that the group is rapidly expanding; that further hiring will enlarge the numbers of persons employed in the title, and, consequently, the current number of SEA’s will not be representative of the group when fully staffed.
DECISION NO. 41-82 13 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 Notwithstanding the foregoing, the City indicated it does not have a position with regard to unit placement in the event the Board determines that these employees should be accreted to an existing unit. DISCUSSION Before reaching the major issues presented here as to the appropriate unit for accretion, we will deal with the relatively simple question relating to Principal Sanitation Enforcement Agent and Compliance Agent (Sanitation). We will first consider the City's motion to dismiss the petitions regarding Principal Sanitation Enforcement Agent. The mere fact that a job specification has not been issued would not be sufficient basis for denial of the petitions. The Board has in the past determined that responsibility for the issuance of a job specification is the employer’s, and that employer inaction in this regard may not be invoked by the employer to Justify its demand for a delay in granting collective bargaining rights to employees. However, where there are no incumbents serving in the title, as in this case, the Board has excluded the title from its decision. 3 The City’s motion to dismiss so much of the petitions as relates to Principal Sanitation Enforcement Agent is, accordingly, granted. With regard to the Compliance Agent (Sanitation), we find sufficient evidence in the record to conclude that these 3 Decision No. 57-72, 52-73
DECISION NO. 41-82 14 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 employees are now performing the duties and responsibilities formerly carried out by Sanitation Aides MTA), and that they are not performing enforcement work, but are engaged in lesser level investigative work at the City contractor’s auto wrecking yard. Thus, there appears to be little community of interest with the Sanitation Enforcement Agent. Moreover, we note that D.C. 37 represented the predecessor CETA title before it was eliminated, that Local 237 and CWA have not sought to represent the successor title, and that the City does not have a position with regard to this title. The Board is satisfied that the title Compliance Agent (Sanitation) should be added, by accretion, to Certification No. 37-78 (as amended), covering a social service, investigative and related unit. Turning to the major issue of the appropriate unit for accretion for the Sanitation Enforcement Agent series, we note that Local 237 has withdrawn its petition for accretion and has argued that unit placement should be determined by an election. While the Board is empowered to determine majority status by an election, it is not required to do so and is specifically authorized to utilize “any other appropriate and suitable method.” 4 The record developed at the hearing revealed the following information relevant to unit placement. 4 NYCCBL 1173-5.0b(2)
DECISION NO. 41-82 15 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 Local 237 argues that the Sanitation Enforcement Agent series could be accreted to an existing unit of over 4,637 employees who are combined in a wide variety of job titles and functions. our records indicate that such unit includes inspectional and security employees, for example, Special officer, Transportation Inspector and Taxi and Limousine Inspector. Some of the duties in the job descriptions of the above titles are arguably similar to those of the Sanitation Enforcement Agents such as the enforcement of rules and laws and the issuance of summonses to violators. However, Local 237 presented no testimony or evidence in support of its claim that the Sanitation Enforcement Agents have a community of interest based on their job duties with some of the titles represented by Local 237. While the withdrawal of the accretion petition alone would not defeat Local 237’s claim to represent the SEA’s, its failure to introduce any persuasive evidence in support of its petition, leaves us without any sound basis for consideration of the petition. Again, while Local 237 did submit a showing of interest among the Sanitation Enforcement Agents, such a showing is not required in an accretion case and does not of itself establish a basis for unit placement. 5 5 We note that, while continuing to maintain that the titles in question should be added to its unit by accretion, D.C. 37 did file proof of interest in connection with its petition, and the amended petition filed by Local 237 included a showing interest among the employees sought to be included.
DECISION NO. 41-82 16 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 The D.C. 37 unit (Certification No. 28-78, as amended) to which the Sanitation Enforcement Agents might be added includes Environmental Health Technicians and Public Health Sanitarians, whose duties include inspections and investigations to enforce health and sanitation laws and issuance of summonses. However, the Board’s records show that sone 35 EHT’s, who are in a public health unit of over 2,700 employees, perform a wide variety of health related functions. The record also shows substantial distinctions between the educational requirements and job duties of the EHT’s and the SEA’s. The EHT’s must have an Associate degree with special education in Environmental Science, Chemistry, Physics Biology, and related subjects while the SEA’s have no formal educational requirements. The Public Health Sanitarian have even higher job requirements than the EHT’s, such as a Bachelor’s Degree with science major or an Associate Degree with a science major and five years of related experience. Likewise, the job duties of the Park Enforcement Agents are significantly different from those of the SEA’s; the former are responsible for crowd control and person control in contrast to the responsibilities of the SEA’s to ensure clean and safe public thoroughfares. Furthermore, the Part, Enforcement Agents have Peace Officer status, while the SEA’s do not. Moreover, the Park enforcement Agents are included in a different unit than the
DECISION NO. 41-82 17 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 unit to which D.C. 37 in this proceeding seeks to add the SEA’s. Thus, even though there are some similarities between the duties of the SEA’s and the EHT’s, and while D.C. 37 has made a plausible argument for the unit placement it seeks, it cannot be concluded that D.C. 37’s proposed unit for accretion is clearly as appropriate as the unit proposed by CWA. The CWA unit (Certification No. 25-74, as amended), contains 1,361 employees and consists entirely of Parking Enforcement Agents and Traffic Enforcement Agents. Its supervisory counterpart (Certification No. 26-74, as amended), contains 188 employees and consists of Senior Parking Enforcement Agents and Associate Traffic Enforcement Agents. Both units are, in our judgment, appropriate for placement of the Sanitation Enforcement Agents and Associate Sanitation Enforcement Agents, respectively, because of the similarity in their job duties, qualifications, working conditions, and because their minimum salaries are identical. Furthermore, the employees in the respective SEA and TEA titles patrol assigned areas, wear uniforms, issue summonses for violation of traffic and parking rules and laws, testify at hearings, follow comparable pre-tour routines, and write reports. All of the above elements constitute a sufficient community of interest to persuade us that the units sought by CWA are more appropriate than the units sought by either of the two other unions. We recognize that, if we were creating an entirely new unit structure in the City, we might create a separate security
DECISION NO. 41-82 18 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 and investigative unit which could include in a single unit the petitioned-for SEA series and sore of the titles now represented by Local 237 and D.C. 37, as well as CWA, and possibly titles represented by other organizations. However, we must deal with our existing unit structure. We have avoided the creation of new units merely because new jobs and new job titles have been created. Instead we have sought in such circumstances to place the new titles in existing, broad, occupationally related units, which appear most appropriate among competing groups. Under these circumstances we are persuaded that a greater community of interest has been demonstrated by the petition of CWA to add the Sanitation Enforcement Agent series to the existing Traffic Enforcement Agent series now represented by the CWA. Accordingly, we will add the SEA’s to the non-supervisory unit covered by Certification No. 25-74 (as amended) and add the ASEA’s to the supervisory unit covered by Certification No. 26-74 (as amended). We recognize the City’s concern as to appropriate unit placement in the instant matter where issues of expanding unit are presented. However, that concern is not relevant to the determination of community of interest in an accretion proceeding where the group to be added, though still expanding, represents a small proportion of the basic unit, which is the case here. ORDER NOW, THEREFORE, pursuant to the powers vested in the Board of Certification by the New York City Collective Bargaining Law, it is hereby
DECISION NO. 41-82 19 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 ORDERED that the petitions of City Employees Union, Local 237, IBT, and District Council 37, AFSCME, AFL-CIO docketed as RU-829-81 and RU-843-81, be, and the same hereby are, dismissed; and it is further ORDERED that so much of the petition of Communications Workers of America, AFL-CIO, docketed as RU-861-82, as relates to Principal Sanitation Enforcement Agent be, and the same hereby is, denied; and it is further ORDERED that the petition of District Council 37, AFSCME, AFL-CIO, docketed as RU-850-81, to add the title Compliance Agent (Sanitation) to Certification No. 37-78 (as amended) be, and the same hereby is, granted; and it is further ORDERED that the employees in the title of Compliance Agent (Sanitation) be, and the same hereby are, added to Certification 37-78 (as amended), subject to existing contracts, if any; and it is further ORDERED that the petition of Communications workers of America, AFL-CIO, docketed as RU-933-81, be, and the same hereby is, granted; and it is further ORDERED that so much of the petition of Communications Workers of America, AFL-CIO, docketed as RU-861-82, as relates to Associate Sanitation Enforcement Agent be, and the same hereby is, granted; and it is further
DECISION NO. 41-82 20 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 ORDERED that the employees in the title of Sanitation Enforcement Agent be, and the same hereby are, added to Certification No. 25-74 (as amended), subject to existing contracts# if any, and it is further ORDERED that the employees in the title of Associate Sanitation Enforcement Agent be, and the same hereby are, added to Certification No. 26-74 (as amended), subject to existing contracts, if any. Dated: New York, New York September 7, 1982 ARVID ANDERSON CHAIRMAN MILTON FRIEDMAN MEMBER DANIEL G. COLLINS MEMBER
DECISION NO. 41-82 DOCKET NOS. RU-829-81 RU-833-81 RU-843-81 RU-850-81 RU-861-82 The titles and title code numbers of employees affected by this decision are as follows: Added to Certification No. 37-78 Compliance Agent (Sanitation) 05260 Added to Certification No. 25-74 Sanitation Enforcement Agent 05218 Added to Certification No. 26-74 Associate Sanitation Enforcement Agent 05219
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