STATE OF NEW YORK 
PUBLIC EMPLOYMENT RELATIONS BOARD 
In the Matter of 
PATROLMEN'S BENEVOLENT ASSOCIATION 
OF THE CITY OF NEW YORK, INC. 
CASE NO. DR-121 
Upon a Petition for Declaratory Ruling 
GLEASON, DUNN, WALSH & O'SHEA (RONALD G. DUNN of counsel) and 
MICHAEL T. MURRAY for Patrolmen's Benevolent Association of the City of New 
York, Inc. 
PROSKAUER ROSE LLP (M. DAVID ZURNDORFER, NEIL H. ABRAMSON and 
DANIEL ALTCHECK, of counsel), for the City of New York 
BOARD DECISION AND ORDER 
This case comes to the Board on exceptions filed by the Patrolmen's Benevolent 
Association of the City of New York, Inc. (PBA) to a decision by the Director of Public 
Employment Practices and Representation (Director) dismissing a petition for a 
declaratory ruling (petition) filed by the PBA.1 
On April 27, 2007, the PBA filed both a petition and an improper practice charge 
containing identical allegations and requesting similar relief. In its petition, the PBA seeks 
a declaration that a provision of a collectively negotiated agreement between the City of 
New York (City) and the Uniformed Firefighters Association of Greater New York, Local 
94, IAFF, AFL-CIO (Association) constitutes an unlawful parity clause that will adversely 
impact the PBA's ability to participate in a pending interest arbitration with the City. 
On May 2, 2007, the Director issued a deficiency notice to the PBA with respect 
to the petition. The notice also informed the PBA that its improper practice charge 
1 40 PERB H6602 (2007). 
Case No. DR-121 -2-
would be processed.2 On May 3, 2007, the City submitted a letter to the Director 
asserting that PERB lacked jurisdiction to grant the requested declaratory relief or to 
determine the improper practice charge based on the Court of Appeals decision in 
Patrolmen's Benevolent Association v City of New York.3 On May 11, 2007, the PBA 
notified the Director that it objected to the deficiency notice and indicated an intent to file 
exceptions if the petition is dismissed. 
On June 21, 2007, the Director dismissed the petition on the grounds that 
the requested declaratory ruling did not concern a justiciable dispute between the 
PBA and the City regarding the negotiability of a bargaining demand made by 
either party pursuant to §210.1 (a) of the Rules of Procedure (Rules). 
EXCEPTIONS 
In its exceptions, the PBA contends that the petition questioning the legality of 
the at-issue provision in the agreement between the City and the Association should not 
have been dismissed because it allegedly raises a "scope of negotiations" question 
under §210.1 (a) of the Rules. According to the PBA, the phrase "scope of negotiations" 
encompasses both the negotiability of demands between the parties as well as the 
interpretation of an external contractual provision that may affect the interest arbitration 
between the City and the PBA. In the alternative, the PBA asserts that the issuance of a 
declaratory ruling regarding the at-issue provision would be in the public interest 
2 The improper practice charge, Case No U-27555, is pending before an Administrative 
Law Judge (ALJ). 
3 97 NY2d 378, 34 PERB U7040 (2001). 
Case No. DR-121 -3-
pursuant to §210.2 of the Rules. The City supports the Director's dismissal of the 
petition.4 
Based upon our review of the record and our consideration of the parties' 
arguments, we affirm the decision of the Director. 
FACTS 
The relevant facts are undisputed. The PBA and the City are parties to a pending 
interest arbitration. The City's petition for interest arbitration was filed on or about 
October 24, 2006 and the PBA's response was filed on or about November 22, 2006. 
One of the issues presented in the interest arbitration is the appropriate wage schedule 
for members of the PBA bargaining unit. 
DISCUSSION 
Section 205.6(c) of the Rules sets forth the applicable standards relating to a 
petition for a declaratory ruling involving an interest arbitration.5 Rule §205.6(c) states: 
The proposed arbitration of any matter set forth in the 
petition or response may be objected to by either party as 
not being within the scope of mandatory negotiations by 
filing a declaratory ruling petition pursuant to Part 210 of this 
Chapter. If filed by the respondent, such a petition may not 
be filed after the date of the filing of the response filed in 
accordance with section 205.5 of this Part; if filed by the 
petitioner, such a petition may not be filed more than 10 
working days after its receipt of the response. 
In State of New York (Division of State Police),6 the Board reiterated the purpose 
of the declaratory ruling procedure: 
4 The Association also filed a brief in opposition to PBA's exceptions and in support of 
the Director's decision. The Board has not considered the Association's brief because 
the Association was not a party before the Director nor did it move for leave to intervene 
before the Board or to appear as amicus curiae. 
5 State of New York (Division of State Police), 38 PERB 1J3007, at 3022 (2005). 
6 Supra, note 5. 
Case No. DR-121 -4-
The purpose of the declaratory ruling proceeding is to 
provide a less adversarial means than an improper practice 
proceeding for resolving an existing justiciable issue 
between parties concerning, among other matters, the 
character of subjects of negotiations under the Act.7 
In City of Pittsburgh,8 the Board discussed the limited nature of the negotiation 
issues to be resolved in the context of a declaratory ruling: 
The issues which may be raised in a declaratory ruling 
petition, however, are limited, in relevant respect, to scope of 
negotiations issues. The inquiry is limited to whether the 
demand in question is a mandatory, nonmandatory or 
prohibited subject of negotiations. Here, the City has 
attempted to raise issues that are not relevant to a scope of 
negotiations inquiry, such as the existence of an actual 
impact of its service agreement upon unit employees or the 
meaning of a zipper clause in the parties' collective 
bargaining agreement. As noted by the Director, these 
issues are appropriately raised in an improper practice 
charge.9 (Footnotes omitted) 
In dismissing the PBA's petition, the Director correctly concluded that the petition 
does not seek a declaration regarding the negotiability of a demand between the PBA 
and the City. In fact, the petition does not seek a ruling regarding "any matter" set forth 
in the City's petition for interest arbitration or the PBA's response as required by Rule 
§205.6(c). Instead, the petition seeks an interpretation and legal conclusion of a 
contractual provision between the City and another employee organization. Therefore, 
the petition seeks a ruling regarding an issue beyond the stated purposes for the 
declaratory ruling process under the Rules.10 
7 Supra, note 5 at 3023. See also, Town of Henrietta, 24 PERB fl6604, at 6606 (1991), 
affd; 25 PERB <J6501 (1992); City of Home!!, 36 PERB <|3Q33 (2003). 
8 32 PERB 1J3014 (1999). 
9 Supra, note 8 at 3024-3025. 
10 New York State Nurses Assn, 24 PERB 1J6601 (1991); County of Orange, 28 PERB 
5T6601 (1995). 
Case No. DR-121 -5-
The PBA's reliance on the holding in City of New Yorku is misplaced. In City of 
New York, a majority of the Board affirmed a decision concluding that the City violated 
§209-a.1(d) of the Act when it entered into a parity clause with other employee 
organizations. The fact that a parity clause with another employee organization may or 
may not constitute an improper practice does not mean that the issue is appropriate for 
a resolution through a declaratory ruling. Indeed, the challenge to an alleged parity 
clause, implicating another employee organization, is more appropriately determined in 
the context of an improper proper practice charge rather than the less adversarial 
declaratory ruling process. 
Furthermore, contrary to the PBA's argument, the issuance of a declaratory 
ruling on a legal issue beyond the purpose of the declaratory ruling procedure would not 
be in the public interest. 
In affirming the Director's dismissal of the petition, the Board does not take a 
position regarding the legality of the challenged clause in the agreement between the 
City and the Association. In addition, we do not reach the issue of PERB's jurisdiction 
based on the decision in Patrolmen's Benevolent Association v City of New York}2 Both 
issues are subjudice in the related improper practice charge pending before an ALJ. 
DATED: September 25, 2007 
Albany, New York 
Robert S. Hite, Member 
11 10 PERB 1J3003 (1977). 
12 Supra, note 3. 
STATE OF NEW YORK 
PUBLIC EMPLOYMENT RELATIONS BOARD 
In the Matter of 
FASHION INSTITUTE OF TECHNOLOGY 
CASE NO. E-2358 
Upon the Application for Designation of 
Persons as Managerial or Confidential. 
LITTLER MENDELSON (BERTRAND POGREBIN and ORIT GOLDRING 
of counsel) for Employer 
DAVID ENG-WONG, for Intervenor United College Employees of FIT 
BOARD DECISION AND ORDER 
This case comes to the Board on exceptions1 filed by the Fashion Institute of 
Technology (FIT) to a decision of the Administrative Law Judge (ALJ) dismissing its 
application seeking the designation of Anne Miller, Acting Director of Health Services, 
as managerial in accordance with the criteria set forth in §201.7(a) of the Public 
Employees' Fair Employment Act (Act).2 The title of Director of Health Service is in the 
1 No exceptions have been taken to the ALJ's designation of Bonnie Born, Benefits 
Manager, and Lourdes Rodriguez, Salary and Certification Manager as confidential. 
2 Section 201.7(a) defines the term "public employee" as "any person holding a position 
by appointment or employment in the service of a public employer, except that such 
term shall not include for the purposes of any provision of this article other than sections 
two hundred ten and two hundred eleven of this article, ...persons who may reasonably 
be designated from time to time as managerial or confidential upon application of the 
public employer to the appropriate board.... Employees may be designated as 
managerial only if they are persons (i) who formulate policy or (ii) who may reasonably 
be required on behalf of the public employer to assist directly in the preparation for and 
conduct of collective negotiations or to have a major roie in the administration of 
agreements or in personnel administration provided that such role is not of a routine or 
clerical nature and requires the exercise of independent judgment. Employees may be 
designated as confidential only if they are persons who assist and act in a confidential 
capacity to managerial employees described in clause (ii)." 
Case No. E-2358 - 2 -
bargaining unit represented by the United College Employees of FIT (UCE), which 
opposes the designation. 
EXCEPTIONS 
FIT excepts to the ALJ's decision which concluded that although the Director of 
Health Services formulates policy, such policy formulation is not related to FIT'S primary 
educational mission and, therefore, cannot form the basis for a managerial designation 
under the Act. FIT also excepts to the ALJ's conclusion that while the Director of Health 
Services has a role in personnel administration those duties do not support a 
managerial designation because most of the employees supervised are not unit 
employees. UCE supports the ALJ's decision. 
Based upon our review of the record and our consideration of the parties' 
arguments, we reverse the decision of the ALJ. 
FACTS 
The facts are not in dispute and are set forth in detail in the ALJ's decision.3 They 
are repeated here only as necessary to address the exceptions. 
FIT is a specialized college offering degrees at the associate, baccalaureate and 
graduate levels in the design and business professions, combining professional studies 
with a liberal arts curriculum for both full and part-time students. FIT includes in its 
mission statement the following objectives: 
to offer professional education in design, applied arts, 
business and technology by providing courses that develop 
skill and knowledge for career advancement, taught by 
professional faculty in close cooperation with industry! 
to provide, in addition to professional studies, a broad based 
education in the liberal arts, offering a wide spectrum of 
3 40 PERB H4007 (2007). 
Case No. E-2358 - 3 -
courses in all the disciplines with emphasis on cultural, 
intellectual, social and ethical values; 
to provide an environment that promotes and fosters student 
growth, maturation and self development through 
comprehensive student support services programs and 
activities; 
to provide exposure to the realities of the industry through 
opportunities for research, internships, cooperative 
education and other field experiences; 
to provide an environment that promotes and supports 
diversity, and responds to student's individual educational 
and other field experiences. 
The Director of Health Services (Director) formulates and implements FIT's 
health services policy, procedure and programs and is responsible for the supervision of 
the Department of Health Services (Department). Anne Miller is the Acting Director of 
Health Services. She is a nurse practitioner and has been employed by FIT for over 15 
years. Her predecessor was Rita Rooney, who was also a nurse practitioner. 
The Department runs an on-campus Health Center that provides primary health 
care, health maintenance and health promotion to full-time students and emergency 
care, first aid and triage to full and part-time students, faculty and staff. The mission 
statement for the Department of Health Services states that: 
The Mission of the Fashion Institute of Technology-Health 
Services is to provide a focus on the campus for health-
related concerns and activities. The constituency of the 
Fashion Institute of Technology-Health Services is the 
students. 
Health related activities include individual and group 
assessment, treatment and referral when appropriate for 
medical care, education and/or counseling; consultation 
when appropriate with administrators regarding special 
needs of students with health problems; concern with 
possible environmental and other threats to the campus; a 
Case No. E-2358 - 4 -
broad program of health education, preventive medicine and 
providing a high level of primary care. The concept of 
patient participation, patient education, health and wellness 
promotion are integral parts of the treatment plan, which 
creates a major impact on academic performance as an 
outcome. 
The Director is responsible for the Health Center's operation, including 
managing its personnel, setting its policies and procedures and creating its budget. The 
Director prepares the Department's budget which is partially funded by FIT. The 
Department's primary source of funding comes from the student activity fees which are 
allocated by the student association. Former Director Rooney negotiated with the 
student association for an increase in the student activity fee to be used to fund 
additional services. 
The Director has the discretion to determine the services to be provided by the 
Health Center. The Director also decides the manner in which such services are to be 
provided by determining the number and type of medical providers to be hired. These 
decisions are made by the Director based upon an annual anonymous student survey, 
the results of which are published in the Department's year-end report, at the Director's 
behest.4 
The Health Center's staff includes an office manager, who reports to the Health 
Services Director, clerical assistants, and a mostly part-time staff of approximately 
twenty-five health professionals whose salaries are funded by the student health 
services fee. The Director hires, fires and sets the work schedule, rate of pay and terms 
4 The former Director Rooney initiated the survey to determine student satisfaction with 
the Health Center's services and a survey of parental needs and satisfaction and 
formulated policies to address those concerns. 
Case No. E-2358 - 5 
and conditions of employment of the Health Center's contract staff.5 
The Director prepares and issues a year-end report that is submitted to the Dean 
for Student Development, which he submits to the Vice President for Student Affairs, 
together with the year-end reports of other departments that report to him.6 The Vice 
President for Student Affairs, in turn, forwards the year-end reports to FIT's President. 
The Director has discretion in implementing health laws and regulations. Former 
Director Rooney took the necessary steps to obtain the accreditation for the Health 
Center in 1996. In the fall of 2006, Acting Director Miller made the determination to 
reapply for the accreditation. Additionally, the Director decided that all health care 
providers hired by the Health Center be certified. 
The Department's policy and procedure manual was originally created by former 
Director Rooney. Acting Director Miller annually reviews and updates the manual and 
establishes long and short range goals for the Department with respect to the 
maintenance of quality medical care, the maintenance of clinical records, patient rights, 
medical guidelines and protocols, employee professional improvement, pharmaceutical 
services, laboratory procedures and health education policies, as well as job 
descriptions for Department medical employees. 
The Director, in conjunction with FIT'S Director of Residential Life and other 
departments, is responsible for planning educational and health outreach programs for 
alcohol and substance abuse and eating disorders. The Director also has participated in 
developing the residential life evacuation and emergency policies and the psychiatric 
5 While the Director consults with the Dean for Student Development, the Dean relies 
upon the Director's expertise in these areas. 
6 Neither the Dean for Student Development nor the Director of Health Services is a 
member of the President's Cabinet. 
Case No. E-2358 - 6 -
emergency policy, as well as security, emergency and ambulance procedures.7 
The Director, in conjunction with the Dean, evaluates and determines the health 
insurance carriers for FIT students. The Director also determines the referral policy to 
outside physicians and clinics and develops policies relating to which hospital students 
will be sent for subsequent care. 
DISCUSSION 
A managerial employee within the meaning of §201.7(a) (i) of the Act is a person 
who formulates policy on the behalf of the public employer. The sole issue presented to 
the Board in FIT's exceptions is whether the policy formulated by the Director of Health 
Services meets the standard we initially set forth in State of New Ybr/c8: "the 
development of the particular objectives of a government or agency thereof in the 
fulfillment of its mission and the method, means, and extent of achieving such 
objectives." We find that it does. 
In City School District of the City of Binghamton,9 the Board rejected the 
argument that the policy formulation standard for the designation of an employee as 
managerial, pursuant to §201.7(a)(1) of the Act, is limited to labor relations. The Board 
then determined that several directors of the District "formulated policy" within the 
meaning of the Act because they considered District-wide problems and matters of 
concern in their respective areas of responsibility and acted to resolve and deal with 
such problems and concerns in furtherance of the District's educational program. While 
7 The Director has developed policies for defibrillator and CPR training for the security 
staff. 
8 5 PERB TJ3001, at 3005 (1972). 
9 8 PERB H3084 (1975). 
Case No. E-2358 - 7 -
the Board did not conclude that the Director of Attendance was a managerial employee, 
its decision was based on the Director's "limited opportunity to select among options 
and determine the direction the District takes in the sphere in which he operates."10 
In the present case, the ALJ determined that FIT's primary mission was 
education, with a focus also on serving the professions of design, applied arts, business 
and technology. In contrast, the ALJ characterized the area of Health Services as 
merely ancillary and equated it to support services. Therefore, the ALJ found that the 
duties of the Director were unrelated to FIT's primary mission and did not support a 
managerial designation. 
The record does not support the ALJ's finding. Based on the record, we 
conclude that Health Services is an institution-wide FIT program which is sufficient for a 
managerial designation of the Director even though such services are only one aspect 
of FIT's mission.11 
FIT's mission statement clearly indicates that one of the goals of the institution is 
"to provide an environment that promotes and fosters student growth, maturation and 
self development through comprehensive student support services programs and 
activities". In furtherance of that goal, FIT maintains the Department that has been 
designed "to provide a focus on the campus for health-related concerns and activities." 
The Department offers not only patient care for the students but educational and 
support programs in such diverse areas as HIV prevention, eating disorders and 
women's health issues. 
Based on this record, we conclude that FIT, as part of its mission, has 
10 Id. at 3147. 
11 City Sch Dist of the City of Binghamton, supra, note 9. 
Case No. E-2358 - 8 -
designated the services and programs offered by the Department as part of its overall 
mission in promoting and fostering student growth and self-development. Therefore, 
determinations about whether and to what extent to provide health services to FIT's 
constituency involve "policy formulation" within the meaning of §201.7(a)(1) of the Act. 
As we stated in City of Binghamton:n 
To formulate policy is to participate with regularity in the 
essential process involving the determination of the goals 
and objectives of the government involved, and of the 
methods for accomplishing those goals and objectives that 
have a substantial impact upon the affairs and the 
constituency of the government. The formulation of policy 
does not extend to the determination of the methods of 
operation that are merely of a technical nature. 
It is undisputed that the Director exercises independent judgment in determining 
the scope and nature of the services offered by the Department, including how to 
provide them, who will provide them and the budget allocations for such services. The 
Director interacts with the Dean, the student association and with other program areas 
to coordinate some of the services offered, but the Director's decisions are routinely 
implemented with little or no oversight from the Dean. Clearly, the Director is "not only a 
person who has the authority or responsibility to select among options and to put a 
proposed policy into effect, but also a person who participates with regularity in the 
essential process which results in a policy proposal and the decision to put such 
proposal into effect."13 The Director has the ability to act independently to devise and 
implement college-wide policy. Given this level of authority, the Director's placement in 
the colleae hierarchy and the fact that the Director is not a member of the President's 
12 12 PERB H3099, at 3185 (1979). 
13 Supra, note 5 at 3005. 
Case No. E-2358 - 9 
cabinet are not dispositive. 
Based on the foregoing, we grant FIT's exception14 and reverse the decision of 
the ALJ denying FIT's application to designate the Director of Health Services as 
managerial.15 
We hereby designate Anne Miller, Acting Director of Health Services, as 
managerial. 
SO ORDERED. 
DATED: September 25, 2007 
Albany, New York 
//Un». i£^_ 
Jerome LefkoJAfitz, CljafFirian 
Robert S. Hite, Member 
14 Given our finding herein, we do not reach FIT's other exception. 
15 The facts in this case and the ALJ's decision do not require the Board to apply or 
reconsider the holdings in State of New York (DEC), 36 PERB 1J3029 (2003) and 
Dormitory Authority of the State of New York, 38 PERB 1J3029 (2005), confirmed sub 
nom., CSEA v New York State Pub EmpI Rel Bd, 39 PERB 1J7011 (2006). Therefore, we 
do not comment on them here. 
STATE OF NEW YORK 
PUBLIC EMPLOYMENT RELATIONS BOARD 
In the Matter of 
POLICE BENEVOLENT ASSOCIATION OF 
WAPPINGERS FALLS, 
Charging Party, 
- and - CASE NO. U-26450 v 
VILLAGE OF WAPPINGERS FALLS, 
Respondent. 
JOHN M. CROTTY, ESQ., for Charging Party 
GOLDBERGER AND KREMER (BRIAN S. KREMER, ESQ.), for Respondent 
BOARD DECISION AND ORDER 
This case comes to the Board on exceptions filed by the Police Benevolent 
Association of Wappingers Falls (PBA) to a decision of an Administrative Law Judge 
(ALJ) dismissing an improper practice charge filed by the PBA against the Village of 
Wappingers Falls (Village).1 The PBA's charge alleged that the Village violated §209-
a.1(d) of the Public Employees' Fair Employment Act (Act) when the Village included its 
General Municipal Law (GML) §207-c proposal as part of its response to the PBA's 
petition for arbitration filed pursuant to §205.5(5)(b) of the Rules of Procedure (Rules). 
1 40 PERB H4529 (2007). 
Case No. U-26450 -2-
EXCEPTIONS 
In its exceptions, the PBA contends that §205.6(a)(2) of the Rules2 creates a per 
se prohibition against parties submitting to interest arbitration any proposal made during 
mediation. In addition, the PBA challenges the ALJ's conclusion that the subject of the 
Village's proposal had been the subject of direct negotiations between the parties prior 
to mediation. The PBA does not contend that the Village's conduct during the direct 
negotiations between the parties or during the mediation session, including the Village 
proposing a GML §207-c procedure during mediation, constituted bad faith bargaining. 
The Village supports the ALJ's decision. 
Based upon our review of the record and our consideration of the parties' 
arguments, we affirm the decision of the ALJ. 
FACTS 
The relevant facts are straightforward and not in dispute. The parties 
commenced negotiations in December 20033 for a successor agreement to one that 
would expire on May 31, 2004. During those negotiations, the PBA made a variety of 
proposals, including one regarding GML §207-c procedures. The PBA's GML §207-c 
proposal was discussed by the parties at various negotiation sessions. At one such 
session prior to the declaration of impasse, the Village informed the PBA that the Village 
viewed the GML §207-c proposal to be a nonmandatory subject of bargaining and that it 
was uninterested in pursuing the proposal. 
2 Rules, §205.6(a)(2) states that objections to arbitrability may include: "a matter 
proposed was not the subject of negotiations prior to the petition" (emphasis added). 
3 Transcript, p. 21. 
Case No. U-26450 -3-
In September 2005, the PBA filed a declaration of impasse pursuant to §205.1 (b) 
of the Rules. On September 26, 2005, the Director of Conciliation (Director) appointed 
a mediator. Thereafter, a mediation session was scheduled to take place on November 
17, 2005. On November 16, 2005, a new attorney representing the Village sent an email 
to the PBA with an attached PDF file containing the Village's proposal for GML §207-c 
procedures. The email stated in part: 
Attached as a pdf file is a copy of a proposed GML 207-c 
procedure for your review. In relation to the various 
proposals dated July 5, 2005 put forward which I am using 
as a basis for review, I am looking forward to discussing 
them with an eye toward the overall economic picture 
presented. I believe that this is preferable to simply rejecting 
each and all of them as unacceptable in the aggregate and 
offers an opportunity for progress. The same is true of the 
procedural changes proposed.4 
The November 17, 2005 mediation session, which lasted a few hours, did not 
result in an agreement. Five days later, the PBA filed a petition for interest arbitration, 
pursuant to §205.4 of the Rules, that incorporated its proposals including its GML §207-
c proposal. Thereafter, the Village filed a response, dated December 7, 2005, to the 
PBA's petition containing a copy of the Village's GML §207-c proposal. 
On December 20, 2005, the PBA filed its charge alleging that the Village violated 
§209-a.1(d) by submitting its GML §207-c proposal with its response to the petition for 
interest arbitration. 
DISCUSSION 
The ALJ rejected the PBA's argument that the Village's submission of the GML 
§207-c proposal was objectionable, pursuant to §205.6(a)(2) of the Rules, solely 
because it was a proposal made for the first time during mediation. In addition, the ALJ 
4 Joint Exhibit 3. 
Case No. U-26450 -4-
concluded that the charge should be dismissed because the subject of the Village's 
proposal, GML §207-c procedures, was directly related to the PBA proposal that had 
been discussed at negotiations prior to the declaration of impasse. We agree with both 
of the ALJ's conclusions. 
The PBA does not claim in its exceptions that the totality of the Village's conduct 
during direct negotiations or during mediation demonstrates bad faith bargaining.5 
Instead, the PBA contends that the Village violated the Act as a matter of law based on 
the Village's submission to interest arbitration of a demand put forward for the first time 
during mediation. The PBA's argument is premised on a narrow construction of the 
term "negotiations" as utilized in §205.6(a)(2) of the Rules. Under the PBA's 
interpretation, the term "negotiations" means only proposals exchanged during direct 
bargaining between the parties prior to the declaration of impasse, thereby excluding 
any and all proposals made during mediation. 
The PBA's narrow construction of §205.6(a)(2) of the Rules is fundamentally 
flawed. As the Board noted in New York City Transit Authority and Manhattan and 
Bronx Surface Transit Operating Authority,6 pursuant to §205.15(a) of the Rules, even 
after the filing of a petition for interest arbitration the Director has the power "to direct 
the parties to conduct further negotiations, with or without mediation assistance." Thus, 
Therefore, the Board is not being asked to determine whether the Village approached 
direct negotiations and mediation with a sincere and good faith desire to.reach an 
agreement. See Southampton PBA, 2 PERB fl3011 at 3274 (1969); Cent Sch Dist No 6 
6 PERB 1J3018 at 3043 (1973). 
6 39 PERB H3006 (2006). 
Case No. U-26450 -5-
the Rules themselves define negotiations to include the mediation process.7 
It is well-settled that the duty to negotiate in good faith under the Act extends to 
conduct following a declaration of impasse.8 As the ALJ correctly recognized, mediation 
constitutes a continuation of negotiations between the parties, albeit with an appointed 
third party present to aid the parties in reaching a voluntary agreement pursuant to 
§209.4(a)(1) of the Act. In contrast, in interest arbitration and fact-finding, third parties 
are appointed to render determinations or recommendations relating to outstanding 
issues. 
Contrary to the PBA's contention, permitting the submission of a proposal first 
raised at mediation to interest arbitration is not inconsistent with encouraging good faith 
negotiations. During mediation, it is common for parties, with or without the mediator's 
assistance, to make new proposals or counterproposals aimed at reaching a voluntary 
agreement. The adoption of the PBA's proposed perse rule would adversely impact 
the mediation process by limiting the numerous reasonable options that may close the 
gap between the parties resulting in an agreement. Furthermore, the PBA's argument 
is contrary to the primary purpose of the Act, namely, the promotion of harmonious and 
cooperative relationships by encouraging the voluntary resolution of disputes.9 
7 39 PERB1J3006 at 3023. See also, Rules, §205.6(a)(3) which precludes interest 
arbitration of a matter that "had been resolved by agreement during the course of 
negotiations." Surely, that Rule cannot be construed to permit the reopening of a 
previously disputed matter that has been resolved at mediation. 
8 See, City of Mount Vernon, 11 PERB 1J3095 at 3156 (1978); Poughkeepsie Public 
School Teachers Assn, 27 PERB 1J3079 at 3182 (1994). See also, County of Rockland, 
29 PERB H3009(1996). 
9 Act, §200. 
Case No. U-26450 -6-
In rejecting the PBA's proposed perse rule regarding new proposals in 
mediation, we are not suggesting that all new proposals raised at that stage may be 
included in a petition for interest arbitration or in a response to such petition. The 
submission of a proposal to interest arbitration that is presented for the first time at 
mediation and is not reasonably related to the subject matter of the negotiations and/or 
the discussions during mediation may, under the totality of the circumstances, violate 
§205.6(a)(2) of the Rules. In addition, evidence of a purposeful and conscious delay in 
making proposals until mediation may constitute sufficient proof that the party making 
the proposals did not engage in bargaining with a sincere desire to reach an agreement 
prior to the declaration of impasse.10 
The PBA's reliance on the ALJ's decision in Southhold Town Police Benevolent 
Association, lnc.n is misplaced. In finding a violation in that case, the ALJ concluded 
that the employee organization had tactically refrained from making a particular demand 
until mediation and that the proposal was outside the context of the prior direct 
negotiations. As the ALJ correctly stated in footnote 4 of the decision: 
This is not to say that a new issue may not arise in 
negotiations or mediation when proposed as a response to a 
change in the position of the other party or as a means to 
resolve an impasse. The impropriety here is the attempt to 
introduce a demand beyond context and not referable to the 
existing state of negotiations12 
10 Supra, note 5. 
11 14 PERB U4613(1981). 
12 Supra, note 11 at 4733, n.4. Similarly, the ALJ decision in City of Buffalo (Fire Dept) 
30 PERB 1J4524 (1980) did not adopt the perse rule urged by the PBA. In that case, a 
violation was found by the ALJ because the subject matter of the proposal was raised 
for the first time at mediation and a copy of the actual proposal was not presented to the 
other party until after mediation. 
Case No. U-26450 -7-
In the present case, we agree with the ALJ that the Village's proposal, presented 
at mediation for the first time, was properly submitted to interest arbitration. It is clear 
that the subject matter of the proposal is reasonably related to the PBA's original GML 
§207-c proposal that had been discussed at negotiations. In fact, the Village's proposal 
constitutes a counterproposal to the PBA's original proposal and is aimed at attempting 
to bridge the gap on an outstanding issue. 
At the same time that we reject the PBA's argument relating to mediation, we 
reaffirm prior decisions that have concluded that introduction of any new proposal at 
interest arbitration or fact-finding can breach the duty to engage in good faith 
negotiations.13 As the Board stated in Town of Haverstraw Patrolman's Benevolent 
Association:™ 
Interest arbitration is not, and was not, intended as an 
alternative to, or substitute for, good faith negotiations. 
Rather, it is a procedure of last resort in...impasse situations 
when efforts of the parties themselves to reach agreement 
through true negotiations and conciliation procedures 
have actually been exhausted. 
In McGraw Faculty Association,^5 the ALJ correctly articulated the rationale for 
precluding submission of matters in interest arbitration that were not discussed during 
direct negotiations or mediation: 
The presentation of items which were neither discussed 
during negotiations or at the mediation stage subverts the 
13 Schenectady Comm Coll Faculty Assn, 6 PERB 1J3027 (1973); Binghamton Fire 
Fighters, Local 729, IAFF, 9 PERB 1J3072 (1976); PBA ofPelham Manor, 10 PERB 
114510 at 4524 (1981); Florida Teachers Assn, 15 PERB 1J4513 at 4535 (1982); Croton 
Police Assn, 16 PERB 1J4603 at 4743 (1983). 
14 9 PERB H3063 at 3109 (1976). See also, Lynbrook PBA, 10 PERB 1J3067 at 3119 
(1977). 
15 34 PERB H4558(2001). 
Case No. U-26450 -8-
impasse processes and frustrates the impasse processes 
and frustrates efforts to narrow open issues and reach an 
agreement.16 
For the reasons set forth above, we deny the PBA's exceptions and affirm the 
decision of the ALJ. We, therefore, find that the Village did not violate the Act by 
submitting its GML §207-c proposal for consideration at interest arbitration. 
IT IS, THEREFORE, ORDERED that the charge must be, and hereby is, 
dismissed in its entirety. 
DATED: September 25, 2007 
Albany, New York 
/ / 
7 Jerome Le^owitz.-^rTairman 
JL~ 
Robert S/hfite, Member 
16 Supra, note 15 at 4689. 
STATE OF NEW YORK 
PUBLIC EMPLOYMENT RELATIONS BOARD 
In the Matter of 
UNITED FOOD & COMMERCIAL WORKERS, 
LOCAL 1262, AFL-CIO, 
Petitioner, 
-and- CASE NO. C-5688 
HUDSON CITY SCHOOL DISTRICT, 
Employer. 
CERTIFICATION OF REPRESENTATIVE AND ORDER TO NEGOTIATE 
A representation proceeding having been conducted in the above matter by the 
Public Employment Relations Board in accordance 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, 
IT IS HEREBY CERTIFIED that the United Food & Commercial Workers, Local 
1262, AFL-CIO has been designated and selected by a majority of the employees of 
the above-named public employer, in the unit agreed upon by the parties and described 
below, as their exclusive representative for the purpose of collective negotiations and 
the settlement of grievances. 
Certification - C-5688 - 2 -
Included: All cafeteria workers at all of the schools of Hudson City School 
District, including managers. 
Excluded: General managers, food service supervisor, and temporary per 
diem food servers. 
FURTHER, IT IS ORDERED that the above named public employer shall 
negotiate collectively with the United Food & Commercial Workers, Local 1262, AFL-
CIO. The duty to negotiate collectively includes the mutual obligation to meet at 
reasonable times and confer in good faith with respect to wages, hours, and other 
terms and conditions of employment, or the negotiation of an agreement, or any 
question arising thereunder, and the execution of a written agreement incorporating any 
agreement reached if requested by either party. Such obligation does not compel 
either party to agree to a proposal or require the making of a concession. 
DATED: September 25, 2007 
Albany, New York 
\JMuryy<^^ 
Jerome Lef^6witz,/Chairman 
Robert S.Hite, Member 
STATE OF NEW YORK 
PUBLIC EMPLOYMENT RELATIONS BOARD 
In the Matter of 
LABORERS INTERNATIONAL UNION OF 
NORTH AMERICA LOCAL 17, 
Petitioner, 
-and- CASE NO. C-5709 
TOWN OF PRATTSVILLE, 
Employer. 
CERTIFICATION OF REPRESENTATIVE AND ORDER TO NEGOTIATE 
A representation proceeding having been conducted in the above matter by the 
Public Employment Relations Board in accordance 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, 
IT IS HEREBY CERTIFIED that the Laborers International Union of North 
America Local 17 has been designated and selected by a majority of the employees of 
the above-named public employer, in the unit agreed upon by the parties and described 
below, as their exclusive representative for the purpose of collective negotiations and 
the settlement of grievances. 
v Certification - C-5709 -2 
Included: All full-time and part-time employees assigned to the Town of 
Prattsville Highway Department. 
Excluded: Superintendent. 
FURTHER, IT IS ORDERED that the above named public employer shall 
negotiate collectively with the Laborers International Union of North America Local 17. 
The duty to negotiate collectively includes the mutual obligation to meet at reasonable 
times and confer in good faith with respect to wages, hours, and other terms and 
conditions of employment, or the negotiation of an agreement, or any question arising 
thereunder, and the execution of a written agreement incorporating any agreement 
reached if requested by either party. Such obligation does not compel either party to 
) agree to a proposal or require the making of a concession. 
DATED: September 25, 2007 
Albany, New York 
y Jyi^nA^^ 
Jerome Lefk6witzy-6fTairman 
STATE OF NEW YORK 
PUBLIC EMPLOYMENT RELATIONS BOARD 
In the Matter of 
TOWN OF WILSON, 
Petitioner/Employer, 
-and- CASE NO. C-5732 
TEAMSTER LOCAL 264, INTERNATIONAL 
BROTHERHOOD OF TEAMSTERS, 
Employee Organization. 
CERTIFICATION OF REPRESENTATIVE AND ORDER TO NEGOTIATE 
A representation proceeding having been conducted in the above matter by the 
Public Employment Relations Board in accordance 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, 1 
Pursuant to the authority vested in the Board by the Public Employees' Fair 
Employment Act, 
IT IS HEREBY CERTIFIED that the Teamsters Local 264, International 
Brotherhood of Teamsters has been designated and selected by a majority of the 
employees of the above-named public employer, in the unit agreed upon by the parties 
1 Supporting a separate case initiated by the employee organization (C-5739), that 
employee organization filed a showing of interest from a majority in the unit, which is in 
our file for that case, and was presented at the conference on this case. The parties, 
having had such notice, we take administrative notice of that proof of support. 
Certification - C-5732 - 2 -
and described below, as their exclusive representative for the purpose of collective 
negotiations and the settlement of grievances. 
Included: All Full-Time and Regular Part-Time Highway Department 
Employees. 
Excluded: All others. 
FURTHER, IT IS ORDERED that the above named public employer shall 
negotiate collectively with the Teamsters Local 264, International Brotherhood of 
Teamsters. The duty to negotiate collectively includes the mutual obligation to meet at 
reasonable times and confer in good faith with respect to wages, hours, and other 
terms and conditions of employment, or the negotiation of an agreement, or any 
question arising thereunder, and the execution of a written agreement incorporating any 
agreement reached if requested by either party. Such obligation does not compel 
either party to agree to a proposal or require the making of a concession. 
DATED: September 25, 2007 
Albany, New York 
Jerome Lefkowitz, Chairman 
y^t^ 
Robert S. Hite, Member