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April 19, 2011

Negotiating paid religious holidays

Negotiating paid religious holidays
Port Washington UFSD v Port Washington TA, App. Div., 268 AD2d 523; motion to appeal dismissed, 95 NY2d 761, motion to appeal on Constitutional grounds dismissed 95 NY2d 790

According to the Appellate Division, Second Department’s ruling in the Port Washington Union Free School District case, a Taylor Law contract provision allowing an individual to be absent on a religious holiday with pay without charging his or her absence to leave credits violates the First Amendment.

In the course of collective bargaining under the Taylor Law, Port Washington agreed to include a “Religious Holiday” provision in the agreement.*

The contract clause allowed a teacher to be absent with pay on “any of the religious holidays designated by the New York State Commissioner of Education” without charging his or her absence to leave credits. To receive this benefit the teacher had to submit a written request to absent himself or herself for the holiday.

In September 1997, however, the district advised teachers who had requested paid days off for religious observance that the district would not implement the Religious Holidays provision in the contract “because it was unconstitutional.”

The district said that if a teacher wished to be absent for a religious observance, he or she would be required to charge the absence to his or her appropriate leave credits or request to be placed on a leave without pay for the duration of the absence.

Six teachers and the Port Washington Teachers Association filed a grievance and demanded that the district’s alleged violation of the agreement be submitted to arbitration in accordance with the Taylor Law contract’s grievance procedure.

The district objected and asked a State Supreme Court judge to stay the arbitration proceeding pursuant to Section 7503 of the Civil Practice Law and Rules. The district’s argument: the enforcement of the provision pursuant to an arbitration award would be unconstitutional.

The judge agreed with the district’s rational for refusing to implement the Religious Holidays provision -- the provision was unconstitutional -- and issued an order staying the arbitration. The teachers and the Association appealed.

The Appellate Division said that the first issue to be resolved in cases involving the granting of a stay of arbitration in a public sector dispute arising under a Taylor Law is whether the provision in question is, in fact, subject to arbitration. The court, referring to the Court of Appeals ruling in Matter of Blackburne, 87 NY2d 660, said:

If a statute, decisional law or public policy precludes the governmental employer and employee from referring the dispute to arbitration, then the answer to this inquiry is no and the claim is not arbitrable.

Citing Griffin v Coughlin, 88 NY2d 674, the Appellate Division pointed out that “[t]here is no firmer or more settled principle of Establishment Clause jurisprudence than that prohibiting the use of the State’s power to force one to profess a religious belief.” It affirmed the lower court’s order staying the arbitration on the grounds that the contract provision violated the Establishment Clause of the First Amendment of the Federal Constitution.

The Appellate Division’s rationale:

The Religious Holidays provision in the Taylor Law agreement between the district and the association “rewarded members of the Association who claimed to be religiously observant with more paid days off than those afforded to agnostics, atheists, and members who were less observant.”

In contrast to the type of provision included in the Port Washington contract, many Taylor Law collective bargaining agreements provide for absences with pay charged to “personal leave.”

Typically, such leave may be used for any “personal business” including the observation of religious holidays. Presumably such provisions would pass the Second Department’s Constitutional test as they neither favor the “religiously observant” nor penalize “agnostics, atheists, and members who were less observant.”

* The New York State Public Employment Relations Board [PERB] has held that negotiating days off for religious observances was not a mandatory subject of collective bargaining [CSEA v Eastchester UFSD, 29 PERB 3041].

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