Notice requirements for filing an complaint with PERB alleging an improper practice

Notice requirements for filing an complaint with PERB alleging an improper practice
Union Endicott CSD v PERB, 250 AD2d 82, motion to appeal denied, 93 NY2d 805

In the Union Endicott decision the Appellate Division, Third Department, affirmed its position that a union’s failure to file a timely notice of claim with a school district as mandated by Section 3813(1) of the Education Law prevents it from prosecuting improper practice charges filed against the district with PERB.

The case arose in 1992 in connection with the New York State Electric and Gas Company’s rebate program designed to encourage the replacement of the components of thousands of the Union-Endicott Central School District’s fluorescent fixtures with “high efficiency energy-saving models.”

The district decided to participate in the program and, after receiving competitive bids, awarded the work to an independent electrical contractor. In 1993, the Union-Endicott Maintenance Workers Association filed an improper employer practice charge with PERB contending that the district had awarded work previously performed exclusively by Association members to an independent contractor in violation of Section 209-a(1)(d) of the Civil Service Law [the Taylor Law].

PERB agreed and directed the district to cease subcontracting out the work and to make the Association members “whole for any wages or benefits lost as a result of the contracting out of the [unit] work.”

The district asked the courts to annul PERB’s decision on the ground that the Association had not complied with the “notice of claim” requirement set out in Section 3813 of the Education Law. This omission, the district argued, required PERB to dismiss the improper practice charged filed by the Association.

The Appellate Division agreed, pointing out that it has “unequivocally held that the filing of a timely notice of claim pursuant to Education Law Section 3813(1) is a condition precedent to a collective bargaining unit’s filing of an improper practice charge against a school district.”

Accordingly, the Court decided that PERB should have granted the district’s motion to dismiss the Association’s improper employer practice charge based on the Association’s failure to file a timely notice of claim with the district.*

Courts have noted that there are some exceptions to this requirement, however. For example, in CSEA v Lakeland Central School District, the Appellate Division rejected the School District’s claim that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in Section 3813(1).

The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted a waiving compliance with that requirement” by the School District.

Similarly, in a case involving an employee’s applying for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law, State Supreme Court Justice Anthony Kane rejected a school district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district [Elmsford UFSD v Alfred G. Meyer, Supreme Court, Albany County, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807].

While exceptions to the “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813(1) rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.

* PERB has dismissed improper practice charges filed by a union on the grounds that it failed to filed a notice of claim with the district as required by 3813(1) of the Education Law in other cases such as Watertown Education Association and Watertown City Schools, 28 PERB 3033.
NYPPL