Temple, TX USA
March 15, 2015

The Case of the Dismissal of James Henry Graf



CASE NO. U 10571







STATE OF NEW YORK
PUBLIC EMPLOYMENT RELATIONS BOARD

In the Matter of

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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