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Tuesday, December 10, 2013

A school board’s statutory discretion to set additional qualifications for appointment of an educator may not be impaired through collective bargaining.


A school board’s statutory discretion to set additional qualifications for appointment of an educator may not be impaired through collective bargaining.
Board of Educ. of Valhalla Union Free Sch. Dist. v Valhalla Teachers Assn., 2013 NY Slip Op 08076, Appellate Division, Second Department

The collective bargaining agreement [CBA] between the Board of Education of the Valhalla Union Free School District and the Valhalla Teachers Association provided that, where a teacher's position has been "excessed" and another position becomes available, the Board must appoint the teacher whose position was excessed to the available position, if the teacher is certified in the teaching area in the available position.

A Spanish language teacher retired and the Board made an appointment to the resulting vacancy. Two weeks later the Board "excessed" Teacher, a teacher of English as a second language.

The Association filed a grievance on behalf of Teacher claiming that Teacher, who was certified to teach Spanish and had experience teaching the subject in another school district, should have been appointed to the Spanish language teacher position.

The Superintendent of Schools denied the grievance and ultimately the Association demanded the grievance be submitted to arbitration. The Board thereupon filed a petition to permanently stay arbitration, contending that the CBA provision at issue conflicted with public policy and the mandates of the Education Law.

The Supreme Court denied the Board’s petition, which decision the Appellate Division reversed and granted the Board’s petition to permanently stay arbitration of the grievance.

The Appellate Division explained that the intent to arbitrate of parties to a collective bargaining agreement in the field of public employment may not be presumed but "[I]t must be taken, in the absence of clear, unequivocal agreement to the contrary, that the board of education did not intend to refer differences which might arise to the arbitration forum," and such reference "may not be based on implication.”

In County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, the Court of Appeals set out the following “two-part test” to determine whether a dispute between a public employer and the organization representing its employees is subject to arbitration:

1. Whether anything in a statute, constitution, or public policy prohibits the parties from referring the dispute to arbitration; and 

2. Whether the language of the CBA indicates a clear agreement between the parties to arbitrate the matter.

Noting that the Education Law §§3012[1][a]; 1709[16] vests discretion to the board of education, upon recommendation of the superintendent of schools, to appoint "qualified" teachers to nontenured teaching positions, the Appellate Division said determining if a prospective candidate is possessed of qualifications "is a responsibility of the type that may not be bargained away, as it is central to the maintenance of adequate standards in the classroom."

The court said that the CBA provision at issue mandates that the Board appoint a "certified" teacher, whose position has been "excessed," to a vacant position in the teacher's area of certification.

Noting that although certification may be a central qualification, the Appellate Division, citing Education Law § 2573[9], said that the Board has discretion under that provision to prescribe additional qualifications. In this instance, said the court, the CBA, in effect, divests the Board of its discretion by mandating automatic appointment of certified teachers without inquiry into any additional qualifications the Board may have prescribed. The Appellate Division held that such discretion may not be bargained away through collective bargaining.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_08076.htm
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

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A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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