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PUBLIC EMPLOYMENT RELATIONS BOARD
JAMES H. GRAF,
Charging Party,
CASE NO. U 10571
STATE OF NEW YORK (MANHATTAN DEVELOPMENTAL
CENTER) and NEW YORK STATE PUBLIC
EMPLOYEES FEDERATION, AFL-CIO,
Respondents.
JAMES H. GRAF, pro se
RICHARD E. CASAGRANDE, ESQ. (WILLIAM P. SEAMON, ESQ,
of Counsel) , for New York State Public Employees
Federation, AFL-CIO
BOARD DECISION AND ORDER
This matter comes to us on the exceptions of James H.
Graf to the dismissal by the Director of Public Employment
Practices and Representation (Director) of his improper
practice charge against the State of New York (Manhattan
Developmental Center) (State) and the New York State Public
Employees Federation, AFL-CIO (PEF).
Graf alleges that the State is in violation of
§§209-a.l(a), (b) and (c) of the Public Employees1 Fair
Employment Act (Act) by, first, evading its contractual
obligations concerning five grievances filed by Graf, and
exerting improper influence upon PEF to suppress and obstruct
I the processing of the grievances; second, by terminating his
employment on December 13, 1988, in violation of State and
Federal civil rights laws, affirmative action policies and
New York State's Whistle Blower Law; and, third, by engaging
in a 24-hour-a-day program of high-tech psychological torture
involving the use of a 'stream of consciousness machine',
illegal broadcast of audio signals, sleep deprivation, and
other acts.
Graf further alleges that, as to PEF, a violation of
§209-a.2(a) of the Act occurred when it failed to represent
him properly in connection with the disciplinary charges
pending against him, when the counsel assigned by PEF to
represent him withdrew from his case, and when PEF failed to
) assign another attorney to represent him.
The Director dismissed the charge against the State upon
the ground that Graf's factually unsupported allegations
failed to establish a violation of the Act. Addressing each
of the three sets of allegations against the State in turn,
we find as follows.
I. Evasion of contractual responsibility and
use of improper influence to suppress and
obstruct contract grievance process.
Three of the five grievances referenced by Graf in his
charge were filed in 1985 and 1986, and no action was taken
upon them after 1986. PERB's Rules of Procedure-^/ (Rules)
require that a charge be filed within four months of the
1/Rules, §204.1(a).
improper practice alleged, and we find, at the outset, that
as to these grievances, the charge is untimely, since more
than four months have elapsed since the State (and PEF)
allegedly failed to timely process and/or pursue them.
As to the remaining contract grievances asserted by Graf
to have been ignored by the State, we find that the failure
to timely process these grievances would amount to nothing
more than a contract violation, if any, and does not give
rise to a claim of repudiation of the collective bargaining
agreement between PEP and the State such as to establish the
existence of a claim of violation of §209-a.l(a) of the
Act.-2/ Neither can such factual assertions properly support
J an inference that it was the State's intent to improperly
dominate or interfere with the internal operations of PEF.
[Act, §209-a.l(b)]. We accordingly affirm the Director's
dismissal of the charge against the State in these regards.
II. Termination in violation of State and
Federal law and policy.
Graf's assertions that he was terminated from his
employment with the State in violation of civil rights and
other laws are not matters which, even if proven, fall within
our jurisdiction and remedial powers. PERB's jurisdiction is
limited to determinations concerning whether discriminatory
action has been taken in retaliation for engagement in
^/sewanhaka CHSD. 22 PERB ^[3041 (July 11, 1989) ; Addison CSD,
17 PERB 13076, aff 'a 17 PERB ?[4566 (1984).
activities specifically protected by the Act, such as
engagement in employee organizational activity (Act, §202).
Graf's allegation that he has been discriminated against in
violation of State and Federal civil rights laws does not
give rise to a claim of violation of Section 209-a.1(a) and (c) of
the Act, and the charge was, accordingly, properly dismissed
in this regard •
III. Psychological torture.
Similarly, we dismiss the portion of Graf's charge which
alleges that the State has engaged in systematic "high-tech
psychological torture". We find no cognizable claim of
violation of the Act to exist. Aside from the failure to
present any factual allegations in support of this claim, we
conclude that the invasions of personal privacy, tampering
with mail, illegal broadcasts of audio signals, audio and
video surveillance in Graf's home and other allegations
might, if factual, set forth civil rights or criminal law
violations, but that this Board is without jurisdiction to
decide such claims. We accordingly find that the Director
properly dismissed all of the charges against the State in
their entirety.
We now turn to the allegations made by Graf against PEF,
concerning breach of the duty of fair representation. In
•2/See, e.g. , United Federation of Teachers, Local 2,
16 PERB f3062 (1983).
response to the claim that he was abandoned by PEF's counsel
and denied further representation in connection with his
disciplinary grievance, PEF asserts that, although it indeed
withdrew from representation of Graf, it did so based upon
his conduct in refusing to cooperate and participate in his
defense in a meaningful way, together with the deterioration
in the attorney-client relationship acknowledged by both
parties. Regardless of the merit of these respective claims,
we find that the failure of the charging party to make any
factual allegations supporting a claim of arbitrary,
discriminatory, or bad faith withdrawal of representation
warrants dismissal of the charge against PEF.
We have reviewed the remaining exceptions to the
Director's decision, and find them to be without merit.
4/Graf's assertions notwithstanding, no absolute duty to
represent exists, and there is nothing per se improper in an
employee organization declining representation in a specific
case, in the absence of evidence that such declination is
arbitrary, discriminatory or made in bad faith.
5/Notwithstanding Graf's assertions to the contrary, the
Director is not obligated to conduct a hearing prior to
dismissal of an improper practice charge, if a finding is
made, as here, that PERB is without jurisdiction over the
allegations of the charge and/or that the charge fails to
make allegations, which if proven at a hearing, would
establish a violation of the Act.
Based upon the foregoing, IT IS HEREBY ORDERED that the
charge be, and it hereby is, dismissed in its entirety.
DATED: September 12, 1989
Albany, New York
Harold R. Newman, Chairman
Walter L. Eisenberg, Member.
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