Unfair labor practices – protected activities

Unfair labor practices – protected activities CSEA Local 1000 v PERB, 267 AD2d 935 CSEA appealed a determination by the New York State Public Employment Relations Board [PERB] that the Holbrook Fire District did not commit an improper employer practice when it disciplined one of its employees, Jason Feinberg. The district had filed eight charges against Feinberg, a firehouse attendant, alleging misconduct and, or, incompetence pursuant to Section 75 of the Civil Service Law. Feinberg was alleged to have "permitted unauthorized personnel in his work area, participated in inappropriate activities during work hours, failed to timely complete certain work assignments and follow standard operating procedures in performing certain work-related activities." CSEA filed an improper employer practice charge against the district pursuant to Civil Service Law Section 209-a with PERB on behalf of Feinberg. CSEA contended that the district had filed disciplinary charges against Feinberg "in retaliation for his efforts at organizing a union." While CSEA's charges were pending before PERB, the disciplinary hearing officer issued a report and recommendation finding Feinberg guilty of six of the charges. The penalty recommended by the hearing officer: Feinberg should be terminated from his employment. The District accepted the hearing officer's findings and recommendations and dismissed Feinberg. CSEA and the district stipulated that rather than holding a separate hearing, the record of the proceedings conducted in connection with the disciplinary charges would be used by PERB's Administrative Law Judge (ALJ) in resolving the improper practice charge. Finding that other employees who had engaged in similar misconduct had not been disciplined by the district, the ALJ ruled that the district "had committed an improper practice by discharging Feinberg in retaliation for protected union activities." PERB reversed its ALJ's ruling. PERB said that "the ALJ should have deferred to the findings of the hearing officer that the charges against Feinberg were brought by the District for proper business reasons and not to retaliate against him for his organizing activities". The Appellate Division initiated its review of CSEA's appeal from PERB's ruling by noting that "the relevant inquiry in a proceeding pursuant to Civil Service Law Section 75 is very different than that in an improper practice proceeding under Civil Service Law Section 209-a." The court, citing City of Albany v Public Employment Relations Board, 43 NY2d 954, said: 1. In considering an appeal involving Section 75, the focus is upon whether there was cause for the employee's dismissal. 2. In considering an appeal involving Section 209-a, the focus it is whether the employer's action was motivated by anti-union animus and "it is irrelevant … whether or not cause for the employer's action in terminating [the employee] actually existed." The Appellate Division said that PERB relied upon its policy of deference and the disciplinary hearing officer's determination when it reversed ALJ's determination. However, said the court, its review of the decision in the Section 75 proceeding indicates that the disciplinary hearing officer "did not fully consider the dispositive issue in the improper practice proceeding, i.e., whether Feinberg's firing was improperly motivated." Accordingly, the Appellate Division said that "PERB's deference to the [Section 75] Hearing Officer's findings as the sole basis in resolving the improper practice charge was inappropriate." The Appellate Division annulled PERB's determination and remanded the case to PERB "for an independent review of the ALJ's decision of [CSEA's] improper practice charge in light of all the evidence contained in the record of the Civil Service Section 75 proceeding."

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