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May 17, 2013

The provisions in a collective bargaining agreement that are otherwise controlling may be waived if the waiver is “knowing and voluntarily” made


The provisions in a collective bargaining agreement that are otherwise controlling may be waived if the waiver is “knowing and voluntarily” made
2013 NY Slip Op 03251, Appellate Division, Fourth Department

In September 2006 an individual [Educator] was hired as a probationary teacher by the school district. At the end of the three-year probationary period, Educator was notified that he would not be recommended for tenure by the Superintendent. In lieu of termination, however, the school district, the Educator and the Teacher Association entered into a Juulagreement,* which extended the probationary period for one year.

In Juul the court held that agreements to extend probationary periods are valid and enforceable when found to be a "knowing and voluntary waiver of the protections afforded by the Education Law."

When the agreement ended, the parties entered into a second Juul agreement that extended Educator's probationary period for a fifth year and in exchange for this extension the Teacher Association "waive[d] any right it may have to pursue a grievance under the collective bargaining agreement [CBA]” relative to the deferral of the Superintendent's tenure recommendation, [or] the termination of [Educator’s] employment."

As the end of his fifth probationary year approached, Educator was informed by the Superintendent that he would not be recommended for tenure and that Educator’s appointment as a probationary teacher with the school district would end on a specified date.

The Association filed a grievance on behalf of Educator contesting his termination under various provisions of the CBA. The school district denied the grievance and the Association served a demand for arbitration.

The school district filed a petition in Supreme Court seeking a permanent stay of the arbitration. The court, agreeing with the school district that a valid agreement to arbitrate this particular dispute no longer existed, granted the school district’s petition.

The Appellate Division affirmed the lower court’s ruling.

The court explained that there was not dispute that the arbitration of the claim with respect to the subject matter at issue is authorized under the Taylor Law. Here, however, in accordance with the applicable two-step inquiry to be made by the courts in such situations, it must next be determined whether "such authority was in fact exercised and whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration"

It was also undisputed that, absent the second Juul agreement, Educator’s termination would be subject to the grievance and arbitration procedures contained in the CBA. Rejecting the Association’s argument to the contrary, the Appellate Division concluded that the second Juul agreement “clearly manifested an intent to exclude the subject matter of [Educator’s] termination, including the just cause, teacher improvement and code of ethics grounds advanced by the Association, from the provisions of the CBA relating to grievances and arbitration.”

Similarly, employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service   faced with termination for not satisfactorily completing his or her probationary period may be offered the opportunity to serve a second probationary position in accordance with the provision of 4 NYCRR 4.5 [b] [5] [ii]). Many local civil service commissions have adopted a similar rule.

However this provision requires that the extended probationary term to be served in a different assignment.

This last point is illustrated by the decision in Civil Serv. Employees Ass'n, Inc., Local No. 1000, AFSCME AFL-CIO, Oxford Veterans' Home Local No. 305 v. Venugopalan, 228 A.D.2d 767. In Venugopalan a cook appointed to the position of chief cook and who was required to serve a probationary appointment of from 26 to 52 weeks. When the employee’s 52 week probationary period ended it was determined that his probationary period would be extended for an additional 12 to 24 weeks rather than reinstate him to the cook position.

The court ruled that this second probationary period was “unauthorized” as there was no change in the individual’s “assignment” and thus his appointment as Chief Cook  “ripened into a permanent appointment upon his retention in the position beyond the 52-week period of probation.”

* Juul v Board of Educ. of Hempstead School Dist. No.1, Hempstead, 76 AD2d 837, affd 55 NY2d 648

The decision is posted on the Internet at:

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