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May 24, 2013

Including proposed staffing changes in a plan to close schools submitted to the State Education Department does not cloak the staffing issues as a state policy, law or regulation thereby precluding submitting the matter to arbitration


Including proposed staffing changes in a plan to close schools submitted to the State Education Department does not cloak the staffing issues as a state policy, law or regulation thereby precluding submitting the matter to arbitration
Board of Educ.of the City Sch. Dist.of the City of N.Y. v Mulgrew2013 NY Slip Op 03580, Appellate Division, First Department
The New York City Department of Education (DOE) had filed a plan seeking to close 24 “underperforming schools” and to subsequently reopen 24 "new" schools at the identical locations and facilities with the State Department of Education (SED), which conditionally approved the plan.
The Unions filed demands for arbitration to the extent that the plan proposed to "excess" the staff of the closing schools, alleging that DOE’s plan to open new schools was a pretext to circumvent established procedures in their respective collective bargaining agreements (CBAs) for removing unsatisfactory teachers and other personnel. The Unions also contended that DOE’s plan circumvented their CBAs' requirements that excessing of teachers, i.e., "those let go through no fault of their own," be done on the basis of seniority.

The arbitrator concluded [1] that the Unions' disputes were arbitrable and [2] that the plan had "as its primary, if not sole, objective," avoiding undesirable teachers by excessing them under CBA provisions relating to closed or phased out schools, which violated CBA requirements that excessing be done on the basis of seniority.*

Supreme Court, New York County denied the DOE’s CPLR Article 75 petition seeking an order vacating the arbitration award and granted the cross-petition of the United Federation of Teachers, Local 2, and the Council of School Supervisors and Administrators, Local 1, American Federation of School Administrators to confirm the award. The Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that the arbitrator neither exceeded his powers under the CBAs, nor did he violate public policy in resolving the merits of the parties' disputes. The CBAs, said the court, provide that unresolved grievances concerning the application or interpretation of the CBAs are subject to arbitration.

Although the definition of a grievance under the CBAs does not include any matter for which a method of review is proscribed by law, or any rule or regulation of the SED having the effect of law, here the grievances seek only to have the arbitrator consider the interpretations of the CBAs and whether the plan, if implemented as written, violates the contractual rights and responsibilities of the parties.

Finding DOE's argument that arbitration necessarily interferes with the SED's statutory and regulatory authority “unpersuasive,” the Appellate Division although DOE “broadly referencing educational laws and regulations,” it failed to identify any law that "prohibit[s], in an absolute sense, [the] particular matters [to be] decided," citing County of Chautauqua v Civil Serv. Empls. Assn, Local 1000, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513 and commenting that only when the interest in maintaining adequate standards is attached to a well-defined law that public policy is implicated."

The Appellate Division concluded that the underlying grievance in no way impinges on the authority of the SED to approve a plan for the closure or the reopening of the 24 “underperforming schools” as new schools under the Education law (Education Law § 2590-h) nor DOE’s own inclusion of proposed staffing changes in its plan to close schools to support its argument that staffing issues are now a state policy, law or regulation having the effect of law, which removes them from the dispute resolution regimen provided in the CBAs.
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Finding that the Unions' grievance does not challenge either the DOE's right to put forth a plan to close schools or the SED's right to approve such a plan. But only seeks only a determination regarding the interpretation and implementation of staffing requirements under the CBAs, the Unions were not, therefore, relegated to raising their dispute in an Article 78 proceeding rather than submitting the dispute to arbitration.

* Although not addressed in the decision, an appointing authority may not excess or lay a tenured employee as a subterfuge for disciplinary action [Young v Board of Education, 35 NY2d 31].

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_03580.htm


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