Employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual

Employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual
Matter of Hickey v New York City Dept. of Education, 2011 NY Slip Op 04541, Court of Appeals

Helen Hickey and Rachael Cohn, tenured teachers in the New York City School system, commenced Article 78 proceedings against the Board of Education seeking court orders compelling the Board to expunge "letters of reprimand" from their respective personnel files, contending that the Board’s actions failed follow Education Law §3020-a disciplinary procedures. Both letters had been placed in their respective personnel files and indicated that the matter "may lead to further disciplinary action."*

The Board contended that the letters were properly placed in the teachers’ files because, pursuant to the controlling Collective Bargaining Agreement, their union had negotiated a waiver of the §3020-a procedures with respect to the placement of letters of reprimand in tenured teacher's files and it had been replaced with a different procedure.

Education Law §3020(1) provides: "No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section [3020]-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement."

Noting that §3020-a does not define "discipline," the Court of Appeals said that §3020-a authorizes a hearing officer to impose as a penalty "a written reprimand, a fine, suspension . . . without pay, or dismissal." Section 3020(4)(a), said the Court, further provides that "Notwithstanding any inconsistent provision of law, the procedures set forth in section [3020]-a of this article . . . may be modified by agreements negotiated between the city school district of the city of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by such city school district and the united federation of teachers on or after [June, 10, 2002]."

The Court of Appeals, assuming, but not deciding, that the letters complain of constituted "discipline" for purposes of §3020-a, decided “there is ample basis to conclude that the union knowingly waived the procedural rights granted in Education Law §3020-a in this limited arena.”

As the letters at issue were held as not being subject to §3020-a procedures, the Court ruled that neither Hickey nor Cohen was not entitled to have them expunged from their respective personnel files.

This not the first time that the Court of Appeals has addressed the issue of alternatives to a statutory disciplinary procedure. In Antinore v State [40 NY2d 6] the Court said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutary proceedure that it replaced.

The collective bargaining agreement** controlling in Antinore provided that an individual served with administrative disciplinary charges could elect either a disciplinary proceeding set out in a collective bargaining agreement or, in the alternative, elect to have the matter considered pursuant to a statutory disciplinary procedure, in this instance Civil Service Law §75.

Antinore elected to have the charges filed against him adjudicated pursuant to the procedure set out in the collective bargaining agreement. After the arbitrator found him guilty, Antinore sued, contending that he was entitled to a §75 disciplinary hearing as a matter of law. The Court of Appeal rejected his claim, holding that where an individual has elected to have disciplinary charges filed against him or her adjudicated pursuant to a process that provided administrative due process, he or she may not later claim the right to relitigate the charges under a statutory due process proceeding.

Significantly, the Court of Appeals said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure if the alternate procedure provided constitutional due process protections equivalent to those available under the statute it replaced.

* See http://publicpersonnellaw.blogspot.com/2011/01/constructive-criticism-or-discipline.html setting out the differences between letters constituting “constructive criticism” and letters constituting “reprimand.”

** This option was set out in the initial collective bargaining agreement negotiated between the State as an employer and the Civil Service Employees Association with respect to employees in negotiating units represented by CSEA.

The Hickey decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04541.htm