Thursday, June 20, 2013

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law”


Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law” 
2013 NY Slip Op 04472, Appellate Division, Fourth Department

The Appellate Division reversed a Supreme Court decision that denied a tenured teacher’s [Educator] Article 78 petition seeking to annul the school district’s suspending her without pay for 30 days.

The Appellate Division said it agreed with Educator that the school district failed to comply with the requirements of Education Law §3020(1) when it disciplined her without affording her a hearing pursuant to Education Law §3020-a.

The court explained that “the plain language of Education Law §3020(1) provides that a tenured teacher facing discipline, and whose terms and conditions of employment are covered by a collective bargaining agreement (CBA) that became effective on or after September 1, 1994, is entitled to elect either the disciplinary procedures specified in Education Law §3020-a or the alternative procedures contained in the CBA.”

The court determined that the relevant CBA took effect on July 1, 2006. Accordingly, said the court, Educator was entitled to choose whether to be disciplined under the procedures set forth in the CBA or to elect a disciplinary hearing in accordance with Education Law §3020-a as a matter of law regardless of whether or not the CBA offered such an option.

The school district, however, had denied Educator’s written request for a §3020-a hearing.

Finding that the school district’s action was “incorrect,” the Appellate Division annulled the school district’s imposing a disciplinary penalty suspending Educator for 30 days without pay and directed the school district to [1] reinstate her to her position with back pay and benefits retroactive to the date of her suspension and [2] to remove all references to the discipline imposed from Educator’s personnel file.

Significantly, §3020.1, in pertinent part, provides that any such ”alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September 1, 1994, must provide for the written election by the employee of either the procedures specified in such §3020-a or the alternative disciplinary procedures contained in the collective bargaining agreement.” [emphasis supplied].

Further, the negotiated alternative disciplinary procedure must provided constitutional due process protections equivalent to those available under the statutory procedure [Antinore v State, 40 NY2d 6].

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_04472.htm

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