12_21_1978_PERB_BD_DecisionsOCR.pdf: 110 downloads, before Oct. 1, 2020

New York State Public Employment Relations Board

English

eCommons (Cornell Univ.)

State of New York Public Employment Relations Board Decisions from December 21, 1978

9_8_1976_PERB_BD_DecisionsOCR.pdf: 144 downloads, before Oct. 1, 2020

State of New York Public Employment Relations Board Decisions from September 8, 1976

DigitalCommons@ILR

Cornell University ILR School 
DigitalCommons@ILR 
Board Decisions - NYS PERB New York State Public Employment Relations Board (PERB) 
5-25-1979 
State of New York Public Employment Relations Board Decisions 
from May 25, 1979 
New York State Public Employment Relations Board 
Follow this and additional works at: https://digitalcommons.ilr.cornell.edu/perbdecisions 
Thank you for downloading an article from DigitalCommons@ILR. 
Support this valuable resource today! 
This Article is brought to you for free and open access by the New York State Public Employment Relations Board 
(PERB) at DigitalCommons@ILR. It has been accepted for inclusion in Board Decisions - NYS PERB by an 
authorized administrator of DigitalCommons@ILR. For more information, please contact catherwood-
dig@cornell.edu. 
If you have a disability and are having trouble accessing information on this website or need materials in an 
alternate format, contact web-accessibility@cornell.edu for assistance. 
State of New York Public Employment Relations Board Decisions from May 25, 
1979 
Keywords 
NY, NYS, New York State, PERB, Public Employment Relations Board, board decisions, labor disputes, 
labor relations 
Comments 
This contract is part of a digital collection provided by the Martin P. Catherwood Library, ILR School, 
Cornell University. The information provided is for noncommercial educational use only. 
This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/perbdecisions/132 
STATE OF NEW YORK 
PUBLIC EMPLOYMENT RELATIONS BOARD 
#2A - 5/25/79 
In the Matter of " 
ROCHESTER FIRE FIGHTERS, LOCAL 1071, \ 
I.A.F.F. (AFL-CIO), ) 
Respondent, 
-and- * 
CITY OF ROCHESTER, ; 
Charging Party, 
REDMOND & PARRINELLO, 
(JOHN R. PARRINELLO, ESQ., 
of Counsel), for Respondent 
LOUIS N. KASH, ESQ., (GERALD P. 
COOPER, ESQ., & DAVID R. MILLER, ESQ., 
of Counsel), for Charging Party 
The charge herein was brought by the City of Rochester (hereinafter 
the City) against Rochester Fire Fighters, Local 1071, I.A.F.F. (AFL-CIO), 
(hereinafter the Union). It alleges that the Union violated its duty to 
negotiate in good faith by submitting to interest arbitration five demands 
involving nonmandatory subjects of negotiation. As the dispute is one that 
primarily involves the scope of negotiations under the Public Employees' E.air_ 
Employment Act, it is being processed under Section 204.4 of our Rules. This 
section provides for the submission o;f:a<:di-sp.u'.tee directly to the Board without 
any report or recommendation from the hearing officer. 
Demand 1 
"ARTICLE XIV, SECTION 4 (Confirmation of Verbal Orders) 
In order to remain in effect all verbal orders 
concerning work rules and/or regulations promulgated 
5753 
BOARD DECISION AND ORDER 
CASE NO. U-3781 
Board - U-3781 -2 
by the Fire Chief must be confirmed by 
written order within two ,(2) working days 
of its issuance." 
Initially the City complained that the Union, in its petition for 
arbitration, incorrectly reported that there had been an agreement upon this 
demand. It asserts that the only agreement was a conditional one which would 
take effect only if this Board determines that the demand is a mandatory sub-
ject of negotiation. The City contends that the alleged misrepresentation is 
an improper practice. This contention is rejected. In Johnson City, 12 PERB 
1(3020 (1979), we said (at page 3040): 
"the charge that the Local misstated the 
Village's position in its interest 
arbitration petition does not constitute 
an improper practice as the petition is 
merely a procedural step. The Village 
can restate what its position is in its 
response to the petition for interest 
arbitration." 
The City makes two arguments in support of the proposition that 
this demand is not a mandatory subject of negotiation. First, it argues \ that 
".the form of command is not a term or condition of employment." Second, it 
argues'. that the demand is too broad in that it may "impact on areas other than 
those dealing with terms and conditions of employment." We rejeeit both of the . 
City's arguments. The form of an order is a mandatory subject. The issue 
before us. is not one challenging an employer's authority to issue orders. 
Rather, we deal here with whether the form in which the order is issued is a 
1 
mandatory subject of negotiation even if the substance of the order is not. 
A fire fighter may be disciplined if he fails to comply with the orders of his 
Fire Chief. Spoken orders, if forgotten, cannot be easily reconstructed 
jL Emergency situations may justify the issuance of emergency orders in a 
form deemed suitable by the employer but the demand herein relates to 
standing orders and not to emergency orders. 
575# 
Board - U-3781 
-3 
and disagreements as to the specifics of a spoken order cannot be easily 
resolved. Employees are entitled to negotiate for a precisely recorded state-
ment of the employer's standing orders concerning''work rules and/or regulations 
that they must follow. 
Demand 2 
"ARTICLE XIV, SECTION 6 (Temperature Guidelines) 
The City agrees that inspections, surveys 
and/or other non-fire related duties shall be per-
formed during weekdays, Monday through Friday 
between 1300 hours and 1500 hours. 
No inspections and/or surveys shall be 
performed when: 
1. the temperature is: 
A. At or above 85° (degrees), as per the 
1245 temp. 
B. At or below 45° (degrees), as per the 
1245 temp. 
2. on weekends, on contractually recognized 
holidays, or 
3. during inclement weather, i.e. precipitation. 
The temperature shall be obtained by the 
Fire Dispatcher at 1245 hours from the U.S. Weather 
Bureau, Monroe County Airport and given out directly 
thereafter. 
Other non-fire related duties shall be, but 
not limited to, surveys and/or inspections or area 
problems, pre-plan mapping and pre-plan inspections 
and/or surveys." 
This demand is not a mandatory subject of negotiation. Its primary 
effect is that it would inhibit . the City from providing specific services 
to its constituency at certain times. A City may decide unilaterally when 
inspections ought to be performed and whether they should be called off 
2 
because of weather conditions. When it makes such a decision, it cannot be 
required to negotiate as to a demand that would prevent the performance of 
any services that it deems appropriate for the performance of its mission. 
2_ Compare City of White Plains, 5 PERB 1(3008 (1972) , in which we ruled that 
the right of fire fighters to negotiate the schedules of individuals and 
groups of fire fighters was subordinate to the unilateral right of the City 
to determine the number of fire fighters it must have on duty at any given 
time. Also, compare Orange County Community College, 9 PERB 1[3068 (1976), 
in which we ruled that an employer need not negotiate with respect to a: 
demand that would restrict the scheduling or extent of the services that it 
provides to the public. 
575^ 
Board - U-3781 
-4 
Demand 3 
"ARTICLE XVII, SECTION 2 : (Hazardous Duty and Payments Therefor) 
A. The City and Union agree that extra work and 
safety considerations arise from a reduction 
in manpower. Accordingly, the City agrees to 
make Hazardous Duty payments to each member 
on duty with a Fire Company according to the 
following schedule: 
1. . 3 members on duty, time and one half for each 
day or night worked. 
2. 2 members on duty, double time for each such 
day or night worked. 
3. 1 member on duty, triple time for each such day 
or night worked. 
Mini-Maxi Companies shall use the above schedule, but 
the two (2) members assigned to the mini-pumper (s) shall 
not be counted for purposes of this section 2-A. 
B. The City and Union agree that extra work and/or 
hazards arise from the closing of fire companies.. Accordingly, 
the City agrees to make Hazardous Duty payments to each member 
on duty with a Truck Company or Engine Company, whenever a 
similar company is closed, according to the following schedule: 
1. Closing one (1) Truck Company or Engine Company, 
time plus one-half shall be paid to each member 
on duty with each similar Company for each day 
or night worked. 
2. Closing of two (2) Truck Companies or Engine 
Companies, double time shall be paid to:;each 
member on duty with each similar company for 
each day or night worked. 
3. Closing of three (3) Truck Companies or Engine 
Companies, triple time shall be paid to each 
member on duty with each similar Company for 
each day or night worked. 
The Squad Companies shall be counted as Truck Companies 
and the Mini-pumper (s) shall be counted as Engine Companies 
for the purposes of this section 2-B. 
C. For purposes of this section (2-B and C), day or 
night worked shall include any portion of a 
day or night."— 
This is a demand for premium pay that is related to variations in work 
load and to employment hazards. The circumstances that create the variations 
are themselves not mandatory subjects of negotiation because they involve the 
3_ The closing of companies referred to in the demand means temporary closings. 
The demand is not concerned with permanently closed fire companies. 
Board - U-3781 
manner in which the City performs its public responsibilities. The demand, 
however, is for an economic benefit and is a mandatory subject of negotiation, 
City of Newburgh, 11 PERB 1(3087 (1978) . 
Demand 4 
"ARTICLE XVII, SECTION 2-D 
All fire ground evolutions shall be 
carried out in accordance with recognized 
standards, .of-.safe practice. Compliance with 
the standards established in the training 
manuals of the National Fire Protection 
Association, as last revised, shall be prima 
facie evidence of compliance with the intent 
of this section." 
This demand is not a mandatory subject of negotiation. On its face, 
it is so vague that the City might not understand what would be.required of it. 
The first sentence links employee safety to "fire ground evolutions" - a term 
that both we and the City find ambiguous. The second sentence implies that any 
action that does not comply with a standard contained in National Fire Pro-
tection Association Manuals would be deemed to be a violation of a contractual 
obligation. This implication is strengthened by the Union's brief which 
states that the demand requires that the Manuals be used to provide "standards 
necessary to deal with all fire ground evolutions." Because the Manuals are 
voluminous and deal with many matters that are not terms and conditions of 
employment, this demand would extend negotiations to such matters. 
Demand 5 
"ARTICLE XVII, SECTION 3 
The City will take appropriate steps to 
introduce appropriate legislation in a timely 
manner to seek to amend Section 8 B-5 of the Charter 
of the City of Rochester with relation to its 
reversionary clause and to provide therein that 
5757 
Board - U-3781 
in the event that any portion or the 
whole of 8 B-5 shall be declared to be 
unconstitutional or if the present 207 A 
of the General Municipal Law shall be 
declared to be unconstitutional, that in 
such event, the benefits and application 
of Section 8 B-5 to be the same as were 
previously given under the former Section 
207 A of the General Muncipal Law as it 
was prior to the time of the last Amend-
ment." 
This is not a demand for a change in or the maintenance of terms 
and conditions of employment. Rather, it is a demand that standby legislation 
be enacted in the event that existing legislation providing compensation to 
injured fire fighters is determined to be unconstitutional. Ordinarily the 
content of legislation is not within the scope of negotiations. Legislation 
only becomes a matter of concern under the Taylor Law when it is necessary for 
the implementation of terms of collective agreement (CSL §204-a). That is 
not the thrust of the instant demand. It is not a mandatory subject of 
negotiation. 
NOW, THEREFORE, WE ORDER that the Rochester Fire Fighters Local 1071, 
I.A.F.F. (AFL-CIO) withdraw Demands 2,4 and 
5. We further order that with respect to 
Demands 1 and 3 the charge herein be and it 
hereby is dismissed. 
DATED: New York, New York 
May 25, 1979 
•^Mjd^£j^Jm^i 
Harold R. Newman, Chairman 
Kiaus, Member 
David C. Randies, Membe 
5758 
STATE OF NEW YOR^ 
PUBLIC EMPLOYMENT RELATJ. S BOARD 
i In the Matter of 
#2C - 5/25/79 
Case No. C-1672 
STATE OF NEW YORK, UNIFIED COURT SYSTEM . 
(SUFFOLK COUNTY), 
Employer, , 
-and-
SUFFOLK COUNTY COURT EMPLOYEES ASSOCIATION, . 
Petitioner, 
-and-
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., ! 
LOCAL 1000, AFSCME, 
.Intervenor, ; 
-and-
LOCAL 237, TEAMSTERS, SUFFOLK COUNTY COURT; 
EMPLOYEES CHAPTER,, Intervenor. 
CERTIFICATION OF REPRESENTATIVE AND ORDER TO NEGOTIATE 
A representation proceeding having been conducted in the . 
above matter by the Public Employment Relations Board in accord-
ance with the Public Employees' Fair Employment Act and the 
Rules of Procedure of the Board, and it appearing that a • 
negotiating representative has been selected. 
Pursuant to the authority vested in the Board by the 
Public Employees' Fair Employment Act, 
I IT IS HEREBY CERTIFIED that' the Suffolk County Court 
i Employees Association 
has been designated and selected by a majority of the employees 
of the above named public employer, in the unit described, below, 
as their exclusive representative for the purpose of collective 
negotiations and the settlement of grievances. 
Unit: Included: All non-judicial titles which, prior to April 1, 
1977, were included in Suffolk County Bargaining 
Unit No. 2 (white collar). 
Excluded: Deputy Commissioner Jurors, Deputy Chief Clerk 
Supreme Court, Chief Deputy Commissioner Jurors, 
Deputy Chief Clerk District Court, Executive 
Assistant Administrative Judge, Chief Clerk 
District Court, Chief Clerk County .Court, Com-
missioner Jurors, Deputy Chief Clerk County Court, 
Chief Clerk Supreme Court, Deputy Chief Clerk 
Surrogate Court, Deputy Chief Clerk Family Court, Chief 
Clerk Surrogate Court, Chief Clerk Family Court, arid all 
other employees. 
Further, IT IS ORDERED that.the above named public employer 
shall negotiate collectively with the Suffolk County Court j 
Employees Association • . j 
and enter into a written agreement with such employee organization : 
with regard to terms and conditions of employment, and shall I 
negotiate collectively with such employee organization in the ; 
determination of, and administration of, grievances. i 
Signed on the 25th day of 
New York, New York 
May , 1979 
JZLSQ-VU. O^jA^y 
5760 
Harold R. Newman, Chairman 
Ida Klaus, Member 
David C. Randle's, Member ) 
PERB 58.4 
STATE OF NEW YORK 
PUBLIC EMPLOYMENT RELATIC BOARD 
#2B - 5/25/79 
C a s e No . C-1789 
In the Matter of 
HERRICKS UNION FREE SCHOOL DISTRICT, 
Employer, 
-and-
HERRICKS CLERICAL, CUSTODIAL/MAINTENANCE 
ASSOCIATION, 
Petitioner, 
-and-
NASSAU EDUCATIONAL CHAPTER, HERRICKS UNIT, 
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., 
Intervenor. 
CERTIFICATION OF REPRESENTATIVE AND ORDER 'TO NEGOTIATE 
A representation proceeding having been conducted in the -
above matter by the Public Employment Relations Board in accord-
ance with the Public Employees' Fair Employment Act and the.-
Rules of Procedure of the Board, arid it appearing that a 
negotiating representative has been selected, 
Pursuant to the authority vested in the Board by the 
Public Employees' Fair Employment Act,' 
IT IS HEREBY CERTIFIED that the- Herricks Clerical, Custodial/ 
Maintenance Association "> 
has been designated and selected by a majority of the employees 
of the.above named public employer, in the unit agreed upon by 
i the parties and described below, as their exclusive representa-
tive for the purpose of collective-negotiations and the settle-
! ment of grievances. 
Unit: Included: All clerical, custodial and maintenance 
employees. 
Excluded: Superintendent of Buildings and Grounds, -
Accounting Manager, Administrative Assistants 
and Tabulating Supervisor. 
Further, IT IS ORDERED that the above named public 
employer shall negotiate collectively with the Herricks Clerical,. 
Custodial/Maintenance Association 
and enter into a written agreement with such employee organization 
i with regard to terms and conditions of employment-, and shall 
negotiate collectively with such employee organization•in the 
determination of, and administration of, grievances. 
j Signed on the 25th day of 
New York, New York . 
May, 1979 
Harold R. Newman, Chairman 
c**^ /C^tx-<2-^' 
