//1A-12/30/77 
STATE OF NEW YORK 
PUBLIC EMPLOYMENT RELATIONS BOARD 
In the Matter of 
STATE OF NEW YORK (Office of Employee Relations), 
Employer, 
-and- BOARD DECISION 
AND ORDER 
PUBLIC EMPLOYEE FEDERATION, AFL-CIO, 
Petitioner, 
CASE NO. C-1537 
-and-
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC. 
Intervenor. 
In the Matter of 
STATE OF NEW YORK (Office of Employee Relations), 
Respondent, 
-and-
PUBLIC EMPLOYEE FEDERATION, AFL-CIO, CASE NO. U-2755 
Charging Pa 
-and-
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., 
Intervenor. 
We have before us exceptions in a representation case (C-1537) filed 
by the State of New York (hereinafter the employer) and the Civil Service 
Employees Association, Inc. (hereinafter CSEA), and exceptions in an improper 
practice case (U-2755) filed by the Public Employee Federation, AFL-CIO 
Board - C-1537/U-2755 -2 
(hereinafter PEF). 
PROCEDURES AMD BACKGROUND 
The exceptions in the representation case allege that the Director of 
Public Employment Practices and Representation erred when, on October 26, 1977, 
he declined to dismiss a petition of PEF for certification as the representative 
of the Professional, Scientific and Technical Unit of State employees (here-
inafter PS&T Unit), and he ordered that an election be held among the employees 
in such unit. The employer argues that the petition should be dismissed because 
it was not timely by reason of having been filed at a time when a challenge to 
the representation status of CSEA was precluded by the contract bar provisions 
of §208.2 of the Taylor Law. CSEA, the incumbent representative of the'PS&T. .. 
Unit, makes the same-argument in its exceptions. . CSEA also argues that the 
petition cannot be entertained because the Director has not properly ascertainec 
that it is supported by a showing of interest of 30% of the employees, as 
required by §201.3 of our Rules. 
The improper practice charge was filed by PEF on June 23, 1977. It 
1 
alleges that the employer violated §209-a.l(a) and (b) of the Taylor Law by 
denying it access for organizational solicitation purposes to employees on the 
premises of the State. CSEA intervened in the proceeding and argued that the 
PEF charge should be dismissed because PEF is not an employee organization with-
in the meaning of §201.5 of the Taylor Law and, consequently, has no standing 
under §204 of our Rules to avail itself of the procedures and benefits of that 
law. The hearing officer rejected the CSEA position and, on October 19, 1977, 
we affirmed his determination that PEF is an employee organization within the 
1_ The language of the statute is: "It shall be an improper practice for a 
public employer or its agents deliberately (a) to interfere with, restrain 
or coerce public employees in the exercise of their rights guaranteed in 
section two hundred two for the purpose of depriving them of such rights; 
(b) to dominate or interfere with the formation or administration of any 
employee organization for the purpose of depriving them of such rights; 
Board - C-1537/U-2755 -3 
meaning of the Taylor Law, 10 PERB 1(3093. The hearing officer further deter-
mined that, although the employer had excluded PEF from access to employees at 
State facilities for organizational solicitation purposes as charged, this 
conduct did not constitute a violation of §209-a.l(a) or (b) of the Taylor Law, 
because it was not established that the employer was motivated by animus, which 
is generally deemed an essential element of such a violation. When PEF's 
exceptions to this determination were first presented to us, we reserved judg-
ment on the improper practice case, saying: 
"The question of denial of access cannot be answered without 
first reaching the question of whether the representation 
petition was timely. Accordingly, we defer consideration 
of the PEF exception until receipt of the decision of the 
Director...in the representation case." 
We now decide both the representation and the improper practice cases, which 
we find to be interrelated in their decisional context. 
We restate at the outset established principles relevant to our 
decision in both cases because of the importance of the issues presented. 
The fundamental right assured to public employees by the Taylor Law is 
the right to form, join and participate in any employee organization of their 
own choosing. The enjoyment of this right is protected and implemented by para-
graphs (a) and (b) of §209-a.l of the Taylor Law. Thus, the Act guarantees the 
fundamental right of public employees both to select their organizational rep-
resentatives and to change duly chosen representatives. It restricts that 
freedom, however, in the interest of achieving the countervailing public policy 
objective of stability of established bargaining relationships by protecting 
the exclusive representative status of duly chosen organizations against chal-
lenge for a reasonable length of time sufficient to afford a period of quiet 
enjoyment of the benefits of the collective bargaining relationship. The law 
also seeks to free employees from the frustration of their desire, after a 
reasonable period, to change representatives. Inherent in the practical imple-
*—-• i" 2 J 
Board - C-1537/U-2755 -4 
mentation of these basic policies of the Act is the availability to 
employees of an opportunity to hear the views and arguments of competing ideas 
and organizations. Thus, it becomes necessary as a practical matter that 
organizations have the opportunity to present to the employees their views and 
arguments in favor of a change of representatives. Generally, such access must 
be allowed by the employer at times consistent with the fundamental policies of 
the Act and under circumstances which will not interfere with the conduct of 
the public employer's operations or impair the efficiency of the performance of 
its functions. 
The employer here has plainly recognized the nature of its obligations 
It conscientiously devised and promulgated, in May 1975, Section 12 of its 
Employee Relations Manual striking a reasonable balance between the freedom of 
access of employee organizations and the need for uninterrupted conduct of its 
operations. The Manual also reflects, a clear policy of maintaining employer 
neutrality as between competing employee organizations. On the matter of 
access, it provides: 
"All organizations shall have equal access to employees 
for campaign purposes, i.e., soliciting membership, 
distributing reading, obtaining signatures on authori-
zation cards and petitions, and related activities during 
a campaign period. When an employee organization has been 
recognized or certified as a representative ;of the employees 
in a negotiating unit, the campaign period shall begin no 
earlier than 90 days prior to the date upon which the in-
cumbent organization's representation status is subject to 
challenge under §208 of the Taylor Law." 
FACTS 
The facts here found are based upon a stipulation of the parties. The 
employer and CSEA, the duly certified representative, had an agreement covering 
the PS&T Unit for the period from April 1, 1973 through March 31, 1976. On May 
30, 1976, a successor agreement continuing and amending the expired agreement, 
was entered into for a term ending on March 31, 1978. By its terms, the suc-
cessor agreement could be reopened for specified purposes upon appropriate 
C A O Q 
Board - C-1537/U-2755 -5 
notice by either party before October 31, 1976. Negotiations were reopened. 
A memorandum issued by the employer on May 12, 1977, to Department and Agency 
Heads reported that "the State and CSEA, Inc. have entered into a two-year 
agreement which is pending ratification by the CSEA membership and approval of 
the Legislature." The agreement was signed on June 3, 1977. The agreement 
recites that it is "the entire agreement between the State and CSEA, terminates 
all prior agreements and understandings and concludes all collective negotia-
tions during its term." The "Duration of Agreement" article provides that, "The 
term of this agreement shall be from April 1, 1977 through March 31, 1979." 
On May 2, 1977, PEF sought access from an Agency Head to the employer's 
premises pursuant to the rules of the Manual referred to above. In the May 12, 
1977, general memorandum the employer barred access to its premises to all 
competing organizations on the ground that, by virtue of the new agreement, CSEA' 
fetdzus was immune from challenge and that, accordingly, the 90-day period under 
2 
the Manual was not operative. 
On June 23, 1977, PEF filed with PERB its improper practice charge. 
Thereafter, on August 13, 1977, it filed its petition for certification. To-
gether with the petition, PEF submitted, as its showing of interest, signed 
designation cards and petitions indicating support of PEF by 30% of the 
2_ Following is the text of the memorandum: 
"Questions have arisen regarding the rights of unions not currently 
representing employees to have access to State facilities for the pur-
pose of soliciting employee interest in order to support a petition to 
be submitted to PERB challenging the representation status of CSEA. 
Access to State offices for the purpose of solicitation should not 
be granted at this time, since the State and CSEA, Inc. have entered 
into a two-year agreement which is pending ratification by the CSEA 
membership and approval of the Legislature.' 
Accordingly, the exclusivity provisions of the Agreements between 
the State and the CSEA, Inc. are to be honored during this period of 
time and competing unions should not be granted access to State premises 
for the purpose of solicitation." f ^ A 
OVfCo 
Board - C-1537/U-2755 -6 
employees in the PS&T Unit. These were accompanied by a sworn declaration sub-
mitted by PEF attesting to the fact that the people whose names appeared thereon 
had personally signed them on the dates specified. The Director then conducted 
an investigation during which these names were compared with the names submitted 
by the employer as those comprising the employees within the PS&T Unit, and 
thereupon the names were counted. 
DISCUSSION 
A. The Representation Proceeding 
In support of its contention that the Director erred when he determined 
that PEF's showing of interest was adequate, CSEA argues that the Director should 
aave obtained copies of the signatures of the employees in the PS&T Unit from 
tax forms on file with the employer and conducted a random check against them 
Df the authenticity of the signatures on the documents constituting the showing 
jf interest. CSEA was advised by the Director that it is not the policy of this 
3oard to conduct a detailed investigation, such as that sought by CSEA, unless 
information is presented "which might cast doubt upon the authenticity of the 
submission...." CSEA proffered no such information. It simply stated that, 
mder the recent Freedom of Information Act, the names of employees in the PS&T 
Jnit were available to PEF and thus subjected the showing of interest require-
ent to the possibility of fraud and abuse. We find this assertion to be no 
aore than mere conjecture, insufficient to constitute a reasonable basis for 
casting doubt upon the authenticity of the showing of interest. Accordingly, 
i?e reject CSEA's contention that the Director's determination regarding the 
3_ 
sufficiency of the showing of interest should be reversed. 
J_ For further discussion of the nature of the requirement of a showing of 
interest and of the policy of deferring to the Director when he determines 
that a showing of interest is sufficient, see Board of Education of the 
: City, of; Yonkers,. -10 PERB 1f3l00. 
C -n- <f>. C\ 
Board - C-1537/U-2755 -7 
We also affirm the Director's determination that the petition was 
timely filed. Central to this determination is the interpretation of §208.2 of 
the Taylor Law. It provides: 
"2. An employee organization certified or recognized pursuant 
to this article shall be entitled to unchallenged representation 
status until seven months prior to the expiration of a written 
agreement between the public employer and said employee organi-
zation determining terms and conditions of employment. For the 
purposes of this subdivision, (a) any such agreement for a term 
covering other than the fiscal year of the public employer shall 
be deemed to expire with the fiscal year ending immediately prior 
to the termination date of such agreement, (b) any such agreement 
having a term in excess of three years shall be treated as an 
agreement for a term of three years and (c) extensions of any 
such agreement shall not extend the period of unchallenged 
representation status." (emphasis supplied) 
The 1976-78 agreement was superseded during its life by an agreement 
purporting to commence in mid-term of the 1976-78 agreement and to end on 
>tarch 31^ 1979, one year after the stated expiration date of the superseded 
agreement. The issue before us is whether the later agreement granted CSEA im-
nunity from challenge until seven months prior to its 1979 expiration date or 
whether it constituted an extension of the 1976-78 agreement and thereby failed 
to prolong the period of CSEA's unchallenged representation status beyond 
August of 1977. 
Section 208.2(c) provides that an extension of an agreement "shall not 
extend the period of unchallenged representation status." The employer and CSEA 
would read clause (c) as being merely a clarification of clause (b), which pro-
vides that an agreement for a term in excess of three years shall bar a challenge 
only for as long as would an agreement having a term of three years. Thus, 
according to the employer and CSEA, clause (c) means simply that just as 
the parties may not bar a challenge by a single contract of more than three 
years, they may not do so by extending the duration of an existing agreement 
of less than three years to a period in excess of three years. Hence, they 
argue that, as the total duration of the two agreements in question did not 
extend beyond three years, the later agreement afforded a shield against a 
Board - C-1537/U-2755 -8 
challenge for seven months prior to its prolonged expiration date. 
We find such an interpretation of clauses (b) and (c) to be strained 
and contrary to the clear policy of the law. The first sentence of subdivision 
2 of §208 sets forth the basic policy by which the Legislature has sought to 
achieve a reasonable balance between the conflicting objectives of stability of 
bargaining relationships and the right of employees to change representatives. 
It declares that a collectively negotiated agreement between a public employer 
and an employee organization entitles the employee organization "to unchallengec 
representation status until seven months prior to the expiration of a written 
agreement between the public employer and said employee organization deter-
mining terms and conditions of employment." This policy is implemented by 
§201.3(d) of our Rules, which permits a competing employee organization to file 
a petition during the life of an existing contract only during the month before 
the expiration of the period of unchallenged representation. The statutory 
scheme allows the final seven months of the term of the agreement as the period 
of time in which the challenge process can reasonably be expected to go forward 
to completion— an adequate time for such a petition to be processed, an 
election held, the victorious employee organization certified, and a successor 
agreement negotiated with the public employer. 
The second sentence of subdivision 2 prescribes the exceptions to 
the general policy in three specific separate clauses set forth earlier in this 
decision. Clause (a) provides that, if an agreement is not coterminous with the 
fiscal year of the public employer, for the purpose of contract bar, it "shall 
be deemed to expire with the fiscal year ending immediately prior to the ter-
mination date of such agreement." This exception to the basic contract bar 
rule has no analogy in the private sector. Its purpose is to synchronize the 
Board - C-1537/U-2755 -9 
timetable of negotiations with the public employer's budget-making cycle so 
_4 
as to provide a sound and realistic fiscal framework for the negotiations. 
The exceptions contained in clauses (b) and (c), in essence, embody and 
codify private sector law developed under the National Labor Relations Act. 
Clause (b) embodies the general rule adopted by the NLRB in General Cable Corp., 
139 NLRB 1123 (1962), (51 LRRM 1444), by which contracts having fixed terms 
longer than three years will be treated for contract-bar purposes as three-
year agreements. As explained by the National Labor Relations Board, an accom-
modation must be made "in balancing the interest of employees' freedom to 
choose representatives and the interest of stability of industrial relations... ." 
Clause (c) embodies a principle reaffirmed by the National Labor 
Relations Board in Deluxe Metal Furniture Co., 131 NLRB 995 (1958), (42 LRRM 
1470). It is that an agreement is deemed to be "prematurely extended" if a 
successor agreement is reached, or the duration of an existing one is extended, 
prior to a so-called "insulated" period which follows the failure of any com-
peting organization to file a timely petition. A "prematurely extended" 
agreement does not extend the period of contract bar beyond that which resulted 
from the duration of the original contract. The reason for this rule, accor-
ding to the National Labor Relations Board, is that "hereinafter, unions and 
employees will know precisely when they may be expected to file a petition in 
order to obtain an election." This rule, too, recognizes an accommodation anong 
4_ The Taylor Committee Report — which is the legislative history of the 
Taylor Law — states, "Collective negotiations in government employment 
needs to be closely coordinated with the calendar of the legislative and 
budget year. Indeed, an impasse is typically identified by the failure to 
have achieved an understanding or agreement before the approach of budget 
deadlines established by law." Section 209 of the Taylor Law provides for 
a negotiation and mediation schedule that dates "from the end of the fiscal 
year of the public employer." 
5033 
Board - C-1537/U-2755 -10 
the competing considerations we have already discussed. The principle exists 
and applies without regard to whether the premature extension results in a total 
duration period of three years or longer achieved by more than a single agreement 
B. The Improper Practice 
Having found that the PEF petition was timely filed, we must determine 
whether the employer committed an improper practice when, on May 12, 1977, it 
denied to PEF under its 90-day rule access to State facilities for the purpose 
of soliciting employee interest in support of its petition. We reverse the 
determination of the hearing officer that it did not. While we agree with his 
finding as to the absence of employer animus, we do not believe that a showing 
of animus is a necessary basis for a finding of improper practice in the cir-
cumstances here present. The employer's denial to PEF of access to employees 
on its premises after May 12 must be regarded not only as a violation of Rile 12 
of its own Employee Relations Manual, but of §209-a.l(a), in view of our finding 
that the contract did not bar the filing of a petition by PEF during August 
1977. Thus, the employer must be found to have interfered with the free exer-
cise of employees' rights to change representatives by denying them the oppor-
tunity to be solicited by PEF and to support it. Also, the employer obstructed 
5 The NLRB wrote: 
"The Board considers the establishment of a specific period for the 
timely filing of a petition desirable because it will preserve as much 
time as possible during the life of a contract free from the disruption 
caused by organizational activities. Also, employees and any outside 
unions will be put on notice of the earliest time for the filing of a 
petition. This will create a guide as to the appropriate time to organ-
ize for, and seek a change of, representatives and, since there will be 
little desire to engage in organizational activities much before the time 
when a petition will be accepted, it should also provide longer periods of 
stability. Finally, from an administrative viewpoint, the establishment 
of a definite period will have the salutary effect of enabling Regional 
Offices, by obtaining a limited amount of information, to dismiss pre-
maturely filed petitions, thus preventing a large percentage of such 
cases from being processed until an appropriate time." 
Board - C-1537/U-2755 -11 
PEF's efforts to achieve a showing of interest adequate to support a petition. 
The rights dealing with employees' freedom to organize, to select an employee 
organization, or to reject an organization are among the most fundamental and 
basic rights of those granted by the Legislature. 
The statutory language making it an improper practice to engage in pro-
scribed conduct against employees "for the purpose of depriving them of such 
rights" is not necessarily a requirement that animus be shown. Although proof 
of animus is persuasive evidence that an employer's conduct was improperly 
motivated, it may be determined under certain circumstances that an employer 
interfered with employee organizational rights "for the purpose of depriving 
them of such rights" even absent a showing of animus. In the instant case, the 
employer, in reliance upon its erroneous interpretation of the contract bar 
provisions of the Taylor Law, withheld opportunities to organize that it would 
and should otherwise have afforded to its employees and to PEF. Such conduct, 
in and of itself, was inherently destructive of basic §202 rights and must thus 
be irrebuttably presumed to have been engaged in "for the purpose of depriving 
them of such rights." 
The employer's lack of animus is, however, an important factor to be 
considered in devising a remedy for the improper practice. So, too, is the 
fact that PEF had alternative means and was able to achieve a satisfactory 
showing of interest notwithstanding its lack of direct access. 
We find a violation of §209-a.l(a). We do not find, however, any basis 
for a violation of §209-a.l(b) for the reason that the nature of the improper 
conduct was not such as to dominate or interfere with the formation or adminis-
tration of the employee organizations involved. 
OBDER 
NOW, THEREFORE, WE ORDER the employer to cease and desist from 
denying PEF access to employees at State 
facilities for organizational purposes at 
CTAQpr 
iJXJtJt) appropriate t imes, and 
Board - C-1537/U-2755 -12 
WE ORDER that an election by secret ballot be 
held under the direction of the 
..Director of Public Employment Practices 
and Representation among employees in 
the PS&T Unit. 
DATED: New York, New York 
December 30, 1977 
(<£*, fcK&u*2-^' 
Ida Klaus 
//1B-12/30/77 
NEW YORK STATE 
PUBLIC EMPLOYMENT RELATIONS BOARD 
In the Matter of 
TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, 
Respondent, BOARD DECISION ON 
-and- MOTION 
BRIDGE AND TUNNEL OFFICERS BENEVOLENT ASSOCIATION, INC., 
: Case No. U-2768 
Charging Party. 
This matter comes to us on a motion of the Bridge and Tunnel Officers' 
Benevolent Association, Inc., the charging party herein, to remand it to the 
hearing officer for reconsideration by him of the motion to dismiss that he 
granted. 
The charge herein, as amended, alleges that the Triborough Bridge and 
Tunnel Authority (Authority) failed to negotiate in good faith with it in that 
it discontinued cost of living adjustment (C.O.L.A.) benefits while the parties 
were in negotiation for an agreement to succeed the expired agreement which 
established those benefits. The hearing officer assumed that "all C.O.L.A. 
payments made during the contractual term have been continued . . . " and that 
the charge related only to the refusal of the Authority to apply the C.O.L.A. 
formula of the expired contract to increases in the cost of living so as to re-
quire further increases in the payments to the employees. In support of its 
motion, the Association alleges that past C.O.L.A. payments have not been main-
tained and that its charge relates to the maintenance of past C.O.L.A. benefits 
as well as to the payment of new C.O.L.A. benefits. 
The Association's motion for remand cannot be granted. Our Rules 
iBoard - U-276* -2 
•I'provide no such procedure. They do, however, provide for the filing of excep-
|| "> 
'itions to the hearing officer's decision and for a response by the Authority 
ij 
!j(see Sections 204.10 and 204.11). Upon receipt of exceptions and the Author-
ity's response on the merits, this Board can determine whether the decision of 
the hearing officer should be adopted, modified or reversed.'. In appropriate 
cases, this Boaid may remand the matter to the hearing officer. 
Accordingly, we deny the Association's motion to remand this proceed-
ing to the hearing officer but we grant its alternative motion for an extension 
of time in which to file its exceptions. Such time is extended until January 23 
1978. - , 
Dated, New York, New York 
December 30, 1977 
<^L /(&c ^-t^L^-
Ida Klaus 
1 See North Shore Union Free School District, 10 PEKB 1(3082 (1977)