(a) Within 15 working days after receipt of the decision of the Director or the decision and recommended order of the

ALJ, a party may file with the Board an original and three copies of a statement in writing setting forth any exceptions thereto, and a separate original and three copies of a brief in support thereof, together with proof of service of copies of such exceptions and brief upon each party. . (b) The exceptions shall: (1) (2) (3) (4) Set forth specifically the questions of procedure, fact, law or policy to which exceptions are taken; Identify that part of the decision or order to which objection is made; Designate by page citation the portions of the record relied upon; and State the grounds for exceptions. An exception to a ruling, finding, conclusion or recommendation which is not specifically urged is waived.

Oross-Bxceptlons
Within seven working days after receipt of exceptions, any party may file an original and three copies of a response thereto, or cross-exceptions and a separate brief in support thereof, together with proof of service of copies of these documents upon each party to the proceeding. Within seven working days after receipt of cross-exceptions, any party may file an original and three copies of a response thereto, together with proof of service of a copy thereof upon each party to the proceeding. Request for Extension of Time A request for an extension of time within which to file exceptions and briefs shall be in writing, and filed with the Board at least three working days before the expiration of the required time for filing, provided that the Board may extend the time during which to request an extension of time because of extraordinary circumstances. A party requesting an extension of time shall notify all the parties to the proceeding of its request and shall indicate to the Board the position of each other party with regard to such request. Objection to Certification Without Election A written objection to the Director's determination that an employee organization should be certified without an election may be filed within five working days after receipt of the Director's determination. A party may file a response to the objection within five working days after its receipt of the objection. The objection and any response must be served on all parties.'

In the Matter of SAUGERTIES TEACHERS' ASSOCIATION, Charging Party, CASE NO. U·28691 - andSAUGERTIES CENTRAL SCHOOL DISTRICT, Respondent, - andSAUGERTIES ADMINISTRATIVE AND SUPERVISORY PERSONNEL ASSOCIATION, Intervenor.

PAMELA MELVILLE, LABOR RELATIONS SPECIALIST, for Charging Party DONOGHUE" THOMAS, AUSLANDER & DROHAN, LLP (STUART S. WAXMAN and ARON KARABEL of counsel), for Respondent ARTHUR P. SCHEUERMANN, ESQ., for Intervenor

DECISION OF ADMINISTRATIVE

LAW JUDGE

On November 3, 2008, the Saugerties Teachers' Association (Associatlon) filed an improper practice charge alleging that the Saugerties Central School District (District) violated §209-a.1 (d) of the Public Employees' Fair Employment Act (Act) in September 2008 when it transferred duties previously performed exclusively by two senior high school deans in the bargaining unit represented by the Association to a

Case No. U-28691 principal and two vice-principals 1 outside that unit? Thereafter, the Saugerties
. .

-2-

Administrative and Supervisory Personnel Association (SASPA), which represents a bargaining unit including the District's principals and vice-principals, intervened in the case. SASPA has filed an answer asserting, in affirmative defenses, that the at-issue job duties were not exclusively performed by members of the Association's bargaining unit and that duties related to student discipline have been "historically performed" by members of the bargaining unit represented by SASPA "as part of their administrative/supervisory duties". The District filed an answer denying that the at-issue

job duties were exclusive to the Association's bargaining unit and asserting that the duties are now "performed in part by members of the [Association] bargaining unit and in part by members of the [SASPA] bargaining unit" and "shared in part by members of the [Association] and members of the [SASPA] bargaining unit[s]". A hearing was held on June 18 and October 19 and 20, 2009, at which all parties were represented by counsel. All parties have filed briefs.

1The charge alleges that the work was transferred to "administrative personnel of the Junior Senior High School" and specifically identifies the principal and assistant principal of the District high school, Timothy Price and Frederick Hirsch, respectively, and "Junior High Principal Tom Averill". However, the record contains no evidence regarding Averill. 2While the charge also refers to a grievance filed on September 16, 2008 regarding assignment of teachers to cafeteria duty, the Association confirmed on the record that cafeteria duty is not a subject of the charge. Therefore, I need not address other aspects of this portion of the Association's pleading.

Case No. U-28691 FACTS

-3-

The two former senior high school deans of students, Angela Houlihan and Dominic Zarrella, testified on behalf of the Assoclatlon:" Frederick Hirsch, the assistant high school principal, testified on behalf of the District and SASPA. Houlihan and Zarrella are teachers in the District. Houlihan, from approximately 1994,-and Zarrella, starting in 2001, also served part-time as the deans of students at the District high school, by annual appointment of the District board of education, On July 8, 2008, following their April 9, 2008 appointments for the 2008-2009 school year, the board of education passed a resolution eliminating their dean of students positions effective September 1, 2008. The responsibility of the high school dean of students position was discipline, The activities performed by said deans under the rubric of discipline were, generally, , referrals, investigations, mediation, and "punishment"." Zarrella repeatedly testified to

the collaborative nature of the work, while Houlihan admitted that, in a "personal conversation"," she told Price that he and Hirsch did everything that she and Zarrella

3The record includes descriptions of their job functionswritten by Zarrella, Houlihan and Peggy Houtman, the secretary in the deans' office, for presentation to the District while elimination of the highschool dean of students position was being decided. These are not considered, They were not placed on the record as documents created in the ordinary course of business nor do the record facts regarding them so evidence. Even if considered, they do not add relevantfacts to the record testimony and other documentary evidence. "Transcript, p.207. 5Transcript, p.263.

Case No. U-28691

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did. However, Houlihan also testified on cross-examination that she did not know the exact activities of Price and Hirsch regarding student discipline, and then on redirect examination testified that any action by Price or Hirsch which had consequences would have appeared on documentation in the deans' office. Zarrella and Houlihan acknowledged in their testimony that they did not always operate as deans of students because they had responsibilities as teachers.

However,

they described their dean of students duties as sometimes extending into those periods when they were operating as teachers: the three periods of the eight-period day when they were actually teaching, the times before and after the school day when they

oversaw the buses and/or detention," and their own lunch period. As deans of students,
Zarrella and Houlihan worked out of the deans' office in the high school. When teaching and overseeing, they were not in the deans' office; during at least one teaching period each day, they were out of the deans' office at the same time. While Zarrella testified that when he and Houlihan were not in the deans' office Price or Hirsch would handle matters in their absence, he also testified, as did Houlihan, that they were called out of their classrooms to address issues which arose while they were teaching. From November 29, 2007 on, Zarrella did no teaching, as he had been appointed building liaison coordinator. There is no record evidence that Zarrella performed dean of students duties while acting as building liaison coordinator" nor do the duties described on the record for that position appear conducive to such activity, as they

6Houlihan testified that she and Zarrella rotated detention duty. 7With the exception of cafeteria duty, which is not covered by the instant charge. See note 2, supra,

Case No. U-28691

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involved meetings on the District's building project with the construction manager, the superintendent of schools, and others. Zarrella originally characterized his presence in the deans' office as "pretty much all day" from November 29,2007 on. He then conceded that he was still not in the deans' office at the outset of the day,when he performed bus or hall duty; during the fourth period, when he supervised the cafeteria; when he coached, at 3:00 p.m.; and every Monday from 1:00 p.m. to 3:00 p.rn. when he met with the construction manager. Further, he testified that his building liaison coordinator function required him to hold meetings at various locations." Of the areas, set forth above, in whlch the deans of students operated, the referral process appears to be the"most formal. Referrals are write-ups of students for behavior, such as tardiness, cutting class, violating the dress code, harassment, drug possession, and violence, in violation of the high school's 90de of Conduct. A form exists to effectuate the referral. During Zarrella's and Houlihan's tenure as deans of students, the referral form.was filed with the deans' office. Zarrella and Houlihan kept" folders of these referrals, which they reviewed regularly and on which they took action. Referred students were always sent to the deans' office. Investigations arose from a number of sources, including referrals and, Zarrella testified, rumors, the loss of school equipment; and student claims, such as of internet harassment by other students. In addition to talking to the student(s) and any teacher

SThat Zarrella may have ceased functioning as a dean of students does not affect the instant charge, as there is no claim that his duties were transferred outside the unit at that time. There is no record explanation of what happened to his dean of student duties during this time,

Case No. U-28691

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.·involved, Houlihan testified that investigations sometimes included talking to the administrator involved. 9 Situations requiring resolution, whether discovered through referral, investigation, or otherwise, could result in mediation. According to Zarrella's testimony, mediation was performed with two District representatives because it is "always better to have two people in the room especially on issues' that are very volatile" .10 While Zarrella confirmed that mediation was done in collaboration with Price and Hirsch, he specified that his mediation partner was usually Gina Kiniry, a social worker in the Association's bargaining unit, and "very rarely'" a non-unit employee. Zarrella explained that administrators were included in the mediation of "problems [which] became so drarnatlc'F that parents were involved. Houlihan testified that the school resource officer, who is a police officer and not a District employee, "usually"!" attended meetings she held with students re'garding "qosslp'?" on social networking sites to support her'

9While Zarrella testified to consultation with the guidance counselor, the psychologist, and the nurse, as well, the nurse is in the bargaining unit represented by the Association and it appears that the guidance counselor and psychologist are, also . .While the record contains testimony that searches of students, their book bags, and their lockers also occurred, the Association confirmed on the record that it makes no claim that searches were exclusively performed by unit personnel. "Transcrlpt, "Transcript, p.116. p.117.

121d.
13Transcript, p.255. "Transcript, p.254.

Case No. U-28691

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explanation of the legal standard, Zarrella testified that in the 2007-2008 school year, a police officer was included as to a matter which was "volatile"."

If mediation was unsuccessful or the nature of the incident otherwise dictated that a
penalty be assessed, the high school's Code of Conduct sets forth the penalties for infractions, The only leeway the deans had in setting the penalties, according to Zarrella, was in taking into account the number of times a student had engaged in the prohibited activity, Houlihan, on the other hand, explained that while penalties had to be "within the framework of the consequences that the District had set"," she "usually''" used her "own judgment." based on [her] experience with that particular student"!" or infraction, Action .from the deans of students ran the gamut from counseling to in-school suspension. In the face of Houlihan's and Zarrella's testimony, set forth supra, Houlihan, asked when, as dean of students, she "deferlred] something to an adrnlnlsfrator"." testified that the "primary time that there would be communications between an administrator and [her]'@ was "a situation of out-of-school suspenslon"." Out-of-school

suspensions occur when physical violence, a weapon, or drugs are involved in an incident. The record testimony that out-of-school suspensions were handled by Hirsch

151d.
"Transcrtpt, p.209.


18

Transcript, pp.209-210.

19Transcript, p.222.

2old. 211d.

Case No. U-28691

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and Price was accompanied by testimony from Houlihan that she recommended out-ofschool suspensions to Price and that Price wrote up referrals on out-of-school suspensions "on a rare occastorr'.f Zarrella's testimony of his interaction regarding

out-of-school suspensions was that he would often, on his own initiative, review a situation with Price, who might say, 'This is going to result in an out-of-school suspenslon"." Zarrella also testified that an out-of-school suspension is a "legal

actlon''" and that the letters notifying parents of such suspensions have issued, for the
last four or five

vears."

from the prlncipal's office.

Specific record examples exist in Houlihan's and Zarrella's testimony of the involvement of Price and/or Hirsch in the activities also performed by the deans of students. Regarding referrals and investigations, according to Zarrella's testimony, Price and Hirsch initiated "[v]ery few,,26and "the majority of the referrals were handled

22Transcript, p.210. 23Transcript, p.36. 24Transcript, p.66. 25Zarrella, in his testimony, characterized this as a policy change. Prior to that time, according to Zarrella's testimony, the deans "used to handle" (ld.) the out-of-school suspensions. 26Transcript, p.87. He was initially asked about their generation of referrals, then, instead, their writing/processing of referrals, then, instead, their signing of referrals. In response, Zarrella pointed out that generating or signing a referral was different from processing one,

Case No. U-28691

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primarily by the deans".27 Zarrella also testified that Price "really never wrote referrals,,28 and that Hirsch "would write up a number of referrals that he would give to the [d]eans['] [o]ffice to process'v" if he "witnessed something,,;30 Houlihan testified that Price and ·Hirsch were among those who would "write up a referral"." which was then transmitted to the deans' office for action. In the past three years, Price and Hirsch have conducted "very, very few,,32investigations of referrals, according to Zarrella. Instead, he testified: They would generally come to to do the investigation, and I would generally come back to them with the information, and they would help determine - when I say collaborate, they would help determine the situation, okay, Here we have a criminal situation. Here we have an outof-school sltuatlon" Zarrella also testified, however, that Price and Hirsch handled "a small percentaqe'i'" of referrals: those "they witnessed" and those they "had direct involvement in from the start,,35which "they thought it would be superfluous to bring ... to the dean because the administrator knew that they could handle them, and/or referrals that needed

me

27Transcript, p.83. 28Transcript, p.84. 29Transcript, p.65

30/d.
31Transcript, p.206. 32Transcript, p.88.

33/d.
34Transcript, p.164.

351d.

Case No. U-28691

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to get to that level because they resulted in suspensions that we weren't able to enact,,36 He identified tardiness, unauthorized parking, and reckless driving in the parking lot after hours as issues Price and Hirsch handled, students leaving school without authorization as incidents they "[m]ost likely,,37handled, and truancy as an issue they handled "on rare occasions"." In addition, misbehavior on the buses would be reported to Price, Hirsch or

. one of the deans of students. Both Zarrella and Houlihan also testified that the enforcement of the school's dress code was of particular interest to Hirsch, Houlihan testifying that Hirsch "at times was relentless when it came to dress code vlolatlons"," "disciplining primarily female students"." According to Zarrella, even though violations of Price and Hirsch

the dress code U[g]enerally,,41 carry only the penalty of awarning, "handle[d] many of the inappropriate dress sltuatlons"."

36Transcript, p.165. 37Transcript, p.92. 38Transcript, p.91. 39Transcript, p.283-284. 4oTranscript, p.284.

411d.
42Transcript, p.89. Zarrella also appeared to testify that Hirsch "was charged with ... responsibility" (Transcript, p.157) for dress code enforcement, but he included in that testimony that he (Zarrella) operated in the same area, buf."tended to diffuse situations as opposed to make them issues" (Id.) and "just had a different style" from Hirsch in enforcing the dress code. He also testified that Hirsch had "his own philosophy on dress code" and was "involved in many more dress code issues than the rest of us" (Transcript, p.168).

Case No. U-28691

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Zarrella could not estimate how many referrals Price or Hirsch handled annually and Houlihan could not estimate the number of referrals they either initiated or handled or say "exactly which ones they handled"." According to Zarrella, while "very few',44of the referrals he handled were "questioned?" by Price, they were "every sooften"," with the result that "in seven years

[Price] might have changed a handful of them"." Meanwhile, Hirsch, Zarrella testified, "rarely questioned what [he] dld"." Zarrella testified that "the majorityof... to do with detention, which Price "didn't even look at,,50nor did Hirsch. Regarding both his investigations and mediation, Zarrella testified that he would "confer with the adrninlstratorsr'" afterwards "if [he] felt that there was a problem that. ..was going to ... the next level",s2 which he described as "out-of-school suspension or perhaps an in-school suspeneron.f
.

referrals,,49had

-

He described these communlcatlons as perhaps

431d.
44Transcript, p.69.

451d. 461d. 471d. 481d.
49Transcript, p.84.

sOld.
51Transcript, p.49.

521d. 531d.

Case No. U~28691

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commencing with remarks by him to Price or Hirsch when they bumped into each other in a hallway and testified that some weeks they occurred every day, sometimes not for two weeks at a time. Regarding mediation, Zarrella testified that he would "call [Price or Hirsch] in if the mediation wasn't working and information came to light that proved that one student was either a threat to themselves or others'v'" He described Price and Hirsch as "a resource

that we as the deans used and at times needed to collaborate with them,,;55in that regard he described presenting his findings to Price "many times"56 for direction on the further processing of a matter. "Many of the mediations which were generated by,,57Price or Hirsch "came to,,58Zarrella, he testified, "because ... that is one of my strengths".59 Nonetheless, he also testified that, while he was not "certalrr'" Hirsch had mediated, he was "sure he must have,,61and thatmediations included the administrators. Regarding penalties, administrators would be notified of the penalty phase, which involve the parents of students also

54Transcript, p.36 .

. 551d. 561d.
57Transcript, p.184.


59'd,
6oTranscript, p,118.

6ild.

Case No. U-28691

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according to Zarrella. According to Houlihan, however, on "rare occasion" she would inform Price or Hirsch and ask, "how do you want me to proceed?,,62 The deans, Zarrella testified, would make Price "aware of any major in-school suspension . vlolatlorr'" and send him their in-school suspension assignments for his slqnature." In

addition to the above descriptions of Price and Hirsch "handling" incidents from beginning to end, Houlihan, trying to recall "the process"," testified that Price signed off on the penalties of out-of-school suspension and in-school suspension "once",66 but not the penalties for "day to daY'67 violations. It is unclear from her testimony whether she

. is de.scribing what was once, but is no longer, the process or testifying that Price performed these functions one time each. Neither version conforms to the rest of the record regarding Price's role as to suspensions. Regarding parking lot duty at the beginning of the school day, Zarrella, asked about "administrative staff', testified that such staff, not otherwise identified, also supervised the high school parking lot in the mornings. Houlihan testified that she could

62Transcript, p.209. 63Transcript, p. 66. 64Houlihan's testimony is not inconsistent. She confirmed that Price signed them at one time, but admitted that she could not recall the process. 65Transcript, p.274.

661d. 671d.

Case No. U-28691

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not say that Price "always,,68performed bus duty, but "guess[ed]"69 that he "usually'?" did. Hirsch testified that "it used to be" that he had morning parking lot duty "and that he "still,,71has parking lot duty at the end of the school day. Houlihan testified that if an incident occurred on a morning school bus, Hirsch, "primarily" meet the bus and deal with it. Behavioral issues involving the students from SOCES who attend the high school have always been dealt with by Hirsch, from referral through the penalty phase. Hirsch's testimony of his role, as relevant here, has a different emphasis. According to Hirsch, his duties at the high school "run the gamut of just about everything that has to do with the daily operation"." Asserting that he "absolutely'I" has duties
,72

would notify her to

regarding student discipline, he described his role in that area as "administrative responsibility ... for the overall supervision and functioning of the discipline program, policy and procedure and actual dlsclpllne"." He described himself as having,

undertaken eachstaqe in the disciplinary process, and specified responsibility for tardiness issues arising from the second period on, with the deans of students having 68Transcript, p.278.

69/d.

"ta.
71Transcript, p.3,11. 72Transcript, p.217. 73Transcript, p.297,

74/d.
75Transcript, pp.297-298.

Case No. U-28691

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the responsibility during homeroom and first period; the investigation of a variety of incidents and assessment of penalties thereon, including warnings; and resolution of incidents of student insubordination in class when he "got the call". 76 Whiie he testified that he "would do everything that the deans would do"n regarding student discipline, he then qualified that, referring to any disciplinary issue "when ... brought to"78him or which he "came upon". 79 He confirmed that he acted in the place of the deans of students when they were unavailable and by addressing both minor and major incidents that "couldn't wait".80 Regarding referrals ..Hirsch specified one circumstance in which he sometimes wrote referrals: when a situation arose on a bus at the end of the school day, he might "tell the bus driver, 'I'll take care of the referral.' I'd write the referral,,81. Asked the number of referrals he "initiate[d] and/orprocess[ed]",B2 he testified to approximately "30 a month''" 300 a year, and "[c]lose to,,84 two a day in a 180 day school year; he also

testified to his communications regarding them:

76Transcript, p.300. 77Transcript, p.325 78Transcript, p.327.

791d.
8oTranscript, p.317. 81Transcript, p.311.

821d. 831d.
84Trahscript, p.323.

Case No.U-28691 If they were going to go to an out-of-school suspension and ... it was serious, I would certainly inform Mr. Price.

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* * * I would inform the deans if they knew the student-if I thought in some way they might be helpful, and there were some referrals that I did give to the deans, some of the very minor ones. Otherwise, while he testified to directing teachers to write referrals, he did not describe writing them himself, Instead merely confirming that he was "involved,,85in "investigations or referrals,,86and in "referrals and disciplinary action,,87where "if was necessary, a referral was wrltten"."

a sanction

Specifically regarding the processing of written

referrals, Hirsch testified to taking referrals from the deans' office to process "on a very infrequent basis"." but particularly in the winter and when the deans were backed up in processing them. He would look forthose "that [he] thought were going to come [his] way anyway".90 He characterized those he took as "the serious ones,,91and estimated his winter processing of deans' office referrals as four to six a month" which contrasts with Houlihan's undisputed testimony that, in her last year as a dean of students, she processed approximately 25 referrals a week. Zarrella testified that to his recollection Hirsch and Price did not go through referrals on file in the deans' office and take some to process 85Transcript, pp.306 and 307. 86Transcript, p.306. 87Transcript, p. 307.

881d.
89Transcript, p. 312.


91

Transcript, p. 313.

Case No. U-28691

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themselves, although he admitted that he did not always have the folders in view; Houlihan testified, initially, that "it didn't happen" ,92but then testified that Price did so "rarely,,93and. Hirsch "rarely, if ever".94 Hirsch also testified that referrals were "often handed to [him] from the buses",95 which he would then "take care Of,.96 Otherwise, Hirsch testified that, in addition to witnessing incidents himself, he received communication of problems or incidents involving students through "atmosr'" daily telephone calls from parents and conversations initiated by students and teachers, all of which he then acted upon, including "rais[ing] it,,9B with Price if a parent's call "seriously concern[ed],,99 him. Zarrella confirmed such communications between Hirsch or Price and parents and teachers, while Houlihan confirmed such direct communication from parents to Hirsch or Price. Regarding mediations, Hirsch explained that he conducted them pursuant to requests from teachers, students, or parents and when he had witnessed the Incidents himself. Again, he informed the deans of students if they knew or had "a connection to,,100 the student(s) involved or he decided "there was ... some need to know the

92Transcript, p.286. 93Transcript, p.288. 94Trancript, p.289. 95Transcript, p.310.

961d.
97Transcript, p.3i7.

9Bld. 991d.
100Transcript, p.3i6.

Case No. U-28691 sltuatlon".'?' While he testified that he often resolved situations when he came across

them, no matter how minor and without any further formality, he also testified that he would refer "usually the more minor sanctions,,102to the deans of students. As to some of these areas, other school employees also could, and did, take action, as did the school resource officer. The witnesses repeatedly referred to the student disciplinary process as a collaborative effort involving most if not all of the high school's employees and to the safety and well-being of students, to which the student disciplinary process is geared, as the responsibility of all. Zarrella also testified that reduction in the amount of discipline was of "paramount lmportance'T" to Price and

Hirsch, was one of his "highest priorities",104and was the responsibility, he "would hope",105of "[e]veryone in the building",106working together as a team; Houlihan identified "everyone in the school,,107 responsible for disciplinary ~nforcement of the as Code of Conduct, although she agreed when asked if the deans of students had "a larger stakehold.l'" Specifically regarding 'referrals, any school employee could and dld write up students. Enforcement of the dress code, Zarrella testified, is a matter

1011d.
102Transcript, p.330. 103Transcript, p.128.

104/d.


106/d.
107Transcript, p.227. 108Transcript, p.228.

Case No. U-28691

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"[e]veryone has a hand in".109 Finally, all teachers are provided with the Code of Conduct annually in the faculty handbook and are directed upon first arriving at the high school to familiarize themselves with it. As to the school resource officer, there is no evidence that the police officer in that position was authorized to, or did, operate independently of a school employee in any area. Instead, as Zarrella testified, the officer was called in to work with District employees, whether for a mediation, regarding a criminal matter, to intervene in an incident involving a student, to act as a liaison, or regarding information which the officer brought to the District's attention. According to Zarrella, the school resource officer was brought in regarding any. matter which could contain a criminal element, while Houlihan testified that that was "usually,,110the case. While Houlihan testified that the school resource officer could write referrals based on observations, she "didn't see any"!" during hertime as dean of students. She also testified that she did not know what the officer did when "not. in [her] office": 112 The record provides little specificity regarding how and to what extent the disputed duties of the high school deans of students have been performed since September 1, 2008 and by whom. However, since the only dispute between the parties is whether the dean of students duties were exclusive to the Association's bargaining unit and since there is no record evidence of a change or diminution in the duties, the need for them, or 109Transcript, p.159. 110Transcript, p.253. 111Transcript, p.247. 1121d.

Case No. U-28691

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the manner in which the District provides service in this area, it appears that effective September 1, 2008 all of the work in this area has been performed by others, whether within or outside the Association's unit. Zarrella was the only witness to testify, and only briefly, about the performance of the duties following the abolition of the high school dean of students positions. Specifically, Zarrella testified that he learned from part-time athletic director and assistant high school principal Molyneaux that, at the beginning of the 2008-2009 school year, he and Price handled the referrals for one grade each and Hirsch handled two grades, but that as the .year progressed Hirsch handled 12thgrade and Molyneaux was responsible for the remaining three grades, with Molyneaux working out of the former deans' office, now designated Room 306, when he works on the referrals. Asked about the "mediation, .. .lntervention, [and] ... liaison,,113 functions previously performed by the deans of students, Zarrella testified that "primarily the social worker", 114. Kiniry, has performed them since the elimination of the high school dean of students position. He added that he believed that the school resource officer has also been "brought in" regarding the performance of these functions since the elimination of the high school deans of students because "they want to have a maleand a female".115 Also for the school year following the elimination of the high school dean of students positions, the high school's "student referral" form was altered to eliminate

113Transcript, p.7i. 114Transcript, p.70. 115Transcript, p.71.

Case No. U-28691

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mention of the "dean" title. However, the prior form itself was used only in the 20072008 school year, having replaced a shorter form in use for many years and which contained no references to deans. According to Zarrella's testimony, the space at the bottom of this earlier form for the "action taken by administrator" was frequently filled in by a dean of students, rarely by administrators; according to Houlihan'S testimony, the signature line above the word "administrator", to be signed by the individual who performed the investigation, would be signed by a dean. Zarrella testified to his belief that this form was replaced by the 2007-2008 form because the State of New York required the provision of more information. DISCUSSION With respect to the unilateral transfer of unit work, the initial essential questions are whether the work had been performed by unit employees exclusively and whether the reassigned tasks are substantially similar to those previously performed by unit employees. If both these questions are answered in the affirmative, there has been a violation of §209-a.1 (d), unless the qualifications for the job have been changed significantly.116 It is the burden of the charging party to establish, as relevant here, prior exclusive performance by unit ernployees.!" Here, the Association has failed to do so. The

testimony of the Association's own witnesses establishes overlapping performance of

116NiagaraFrontier Transportation Auth, 18 PERB ~3083J at 3182 (1985). See also Manhasset Union Free Sch Dist, 41 PERB ~3005 (2008), confd and remitted on other grounds sub nom. Manhassat Union Free Sch Dist v New York State Pub Emp/ ReI Bd, 61 AD3d 1231, 42 PERB 117004(3d Dept 2009), on remitter, 42 PERB 113016(2009); Chenango Forks Cent Sch Dis; 40 PERB 113012(2007). 1171d.See also, e.g., Riverhead Cent Sch Dist} 41 PERB 114576(2008).

Case No. U-28691

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the work by individuals within and without the bargaining unit, including, as to the latter, Hirsch and Price; Hirsch's testimony further supports this finding. Only as to written referrals filed with the deans' office does the record evidence exclusive performance by the deans of students. Hirsch's minimal participation does not dictate a contrary finding.118 However, those written referrals were only one means

by which students' behavioral problems were brought to the high school administration's attention. Verbal communications to; and personal witnessing of incidents by, both unit and non-unit high school personnel were the other forms of referral which commenced the high school's disciplinary process, the remaining elements of which were also performed by both unit and nonunit high school personnel. To the extent that the record evidences that the deans of students independently undertook certain actions in attempts to address specific issues, such as Houlihan's creation of a gym clothes provision system and a pass system which allowed students to reschedule one physical education class per semester, "such responsibilities were ... incidental to the broader duties associated with"119the at-issue disciplinary functions, Based on the above, the charge must be, and hereby is, dismissed in its entirety,

Dated at Albany, New York this 2nd day of February 2012

Nancy L. Burritt Administrative Law Judge
118Se(1Manhasset Union Free Sch Oist, supra.

119Riverhead Cent Sch Dist, supra, at 4747.

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