Dismissal of improper practice charge

STATE OF NEW YORK
PUBLlC EMPLOYMENT RELATlONS BOARD


CASE NO. U-21634



In the Matter of DAVlD ROEMER,

Charging Party,

-and-

UNlTED FEDERATlON OF TEACHERS,


Respondent


-and-


BOARD OF EDUCATlON OF THE ClTY SCHOOL DlSTRlCT OF THE ClTY OF NEW YORK,


Employer.




DAVlD ROEMER, pro se


BOARD DEClSlON AND ORDER


This case comes to us on exceptions filed by David Roemer to a decision of the Director of Public Employment Practices and Representation (Director) dismissing his improper practice charge, which alleged that the United Federation of Teachers (UFT) violated §209-a.2(c) of the Public Employees' Fair Employment Act (Act) when it failed to properly represent him in a disciplinary grievance, failed to reimburse him for attorney's fees when he retained private counsel and failed to compensate him for damages he had suffered because of UFT's failure to properly represent him.(1)



FACTS


Roemer's charge was filed on April 13, 2000. The charge alleges that Roemer, a science teacher, was subjected to unsatisfactory evaluations in 1994 and 1995 due to a difference of opinion with his supervisors about teaching methodology. On November 3, 1994, UFT filed a request for conciliation, pursuant to Article 24 of the UFT-District collective bargaining agreement. Thereafter, Roemer filed a grievance alleging that he was still being subjected to unsatisfactory evaluations and that the teaching methodology issue had not yet been resolved through the conciliation process. Initially, UFT represented Roemer at Step 1 and Step 2 of the grievance procedure, but declined to further represent him at Step 3. In February 1996, at Roemer's request, UFT reconsidered its position and remanded Roemer's grievance on the evaluations to the contractual conciliation process.


Roemer further alleged in his charge that the District removed him from the classroom in May 1996 and served him with disciplinary charges in November 1996. UFT represented Roemer in the disciplinary grievance until Roemer retained private counsel, who represented him at the disciplinary grievance hearing. Sometime in 1997 or 1998, Roemer was found innocent of the charge of incompetence but guilty of insubordination for failing to heed his supervisors' instructions as to teaching methodology. Roemer sent letters to UFT in 1998 and 1999, complaining about UFT's representation of him and seeking attomey's fees. On Janualy 9, 2000, Roemer's request for reimbursement for legal expenses was denied by UFT. Apparently, Roemer also also pursued his claims to the New York Court of Appeals.


Roemer was advised that his improper practice charge was deficient in that almost all of the allegations were untimely and, as to his allegation that UFT had refused to reimburse him for his legal expenses, he had not pled any facts which, if proven, would establish that UFT acted in an arbitrary or discriminatory manner or in bad faith. Roemer was given until May 10, 2000, to correct the deficiencies in his charge, amend it, withdraw it or object to the deficiency determination.


Roemer responded with two letters, objecting to the deficiency determination and attempting to further explain his charge. The Director dismissed his charge by decision dated May 1, 2000, finding that the charge was largely untimely and, as to the one timely allegation, that no facts had been pled which would establish the violation alleged. On May 4, 2000, Roemer filed an amendment to the charge alleging that UFT, in the January 9, 2000 letter sent to him, contrived to cover up its improper pradices.


Roemer alleges in his exceptions that the Director erred by characterizing his two letters as objections to the determination that his charge was deficient and not as clarifications, by finding that Roemer had pled no facts to support his allegations and by issuing his decision before he had received Roemer's May 4 amendment. Neither UFT nor the District has responded.


Based upon our review of the record and consideration of Roemer's arguments, we affirm the decision of the Director.



DlSCUSSlON

The Director's timeliness determination was correct. Section 204.l(a)(l) of our Rules of Procedure requires that a charge be filed within four months of the alleged violative act. All but one of the acts complained of by Roemer in his charge occurred between 1994 and 1999. With the exception of UFT's letter of January 9, 2000, all of the allegations related to incidents which occurred well beyond the time for filing an improper practice charge. We have also previously determined that the filing period is not tolled while ancillary proceedings are being pursued by or on behalf of a charging party, even when those proceedings have the potential to effectively moot the improper practice alleged.(2) Roemer's charge, filed years after the actions alleged to violate the Act is, therefore, untimely (3).


As to Roemer's sole timely allegation, that on January 9, 2000, UFT refused to reimburse him for his private attomey's fees, Roemer pled no facts that would support a finding that UFT had provided that benefit to other unit members or that its refusal to reimburse Roemer was arbitrary, discriminatory or made in bad faith. Therefore, the allegation was also properly dismissed by the Director. (5)


Based on the foregoing, Roemer's exceptions are denied and the decision of the Director is affirmed.


IT IS, THEREFORE, ORDERED that the charge must be, and it hereby is, dismissed.


DATED:August 7, 2000
New York. New York


(signed by)


Michael R. Cuevas, Chairman


Marc A. Abbott, Member


John T. Mitchell, Member


(1) Roemer's employer, the Board of Education of the City School District of the City of New York (District), is made a statutory party to the charge pursuant to §209-a.3 of the Act, as the charge alleges that UFT failed to properly process his grievances. See United Fed'n of Teachers 33 PERP ¶3004 (2000).


(2) See Orange County Correction Officers Benevolent Ass'n, 28 ¶PERB 3081 (1995).


(3) See Transport Workers Union, Local 100 (Hokai), 32 PERB ¶3019 (1999).


(4) See New York City Transit Auth. and TWU, Local 100 (Clark), 32 PERB ¶3031 (1999).


(5) Roemer alleges that the Director improperly failed to consider the facts set forth in his May 4, 2000 amendment to the charge. He argues that the deficiency letter he received gave him until May 10, 2000 to darify, amend or withdraw his charge or object to the deficiency determination. The Director, having received two letters from Roemer objecting to the deficiency determination and no indication from him that more documentation was forthcoming, did not wait until May 10 but dismissed the charge by decision dated May 1, 2000. Roemer alleges in his exceptions that he had not yet received the Director's decision on May 4, 2000, when he filed his amendment. That the Director issued his decision without consideration of the May 4, 2000 amendment does not warrant a contrary conclusion in this matter because there were no new facts pled in the amendment.