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December 12, 2017

Payment for "workdays" occurring during a school recess to an individual while he or she is on leave without pay



Payment for "workdays" occurring during a school recess to an individual while he or she is on leave without pay
Decisions of the Commissioner of Education, Decision No. 17,265

Citing Matter of Hilferty, 23 Ed Dept Rep 53 and other decisions of the Commissioner of Education, Commissioner MaryEllen Elia said that in determining the number of working days for which a teacher is entitled to salary pursuant to Education Law §3101(3) no deduction should be made from salary when a teacher performs all the services required of teachers in the district during the month. Accordingly, under ordinary circumstances the days of absence during a school recess should be counted as working days in computing a teacher's compensation.

In contrast, Commissioner Elia, citing Appeal of Zaccaro, 51 Ed Dept Rep, Decision No. 16,336, said that Education Law §3101(3) should not be interpreted to confer a right to salary for a teacher who has been placed on unpaid leave pursuant to the leave provisions of the applicable CBA. 

In this appeal, the school district argued that a teacher [Petitioner] was not entitled to compensation for the days during a spring recess because, pursuant to the provisions set out in a collective bargaining agreement, [CBA], she had been placed on unpaid leave under FMLA. The school district contended that Petitioner had been granted medical leave based on her representation that she would be using the maximum number of allotted sick days with pay for her leave and continue her absence pursuant to the  "federal Family Medical Leave Act" for the remainder.

Following a six week paid medical leave pursuant to the CBA, Petitioner was placed on unpaid leave pursuant to the FMLA until her return on April 16.  However, the district's schools were closed from April 4 through April 13 for spring break, during which time teachers were not required to report to work, but received their regular pay. Petitioner alleged that the school district reduced the her paychecks to reflect the district’s improper recoupment of monies paid for the work days over spring recess.  Petitioner appealed the school district's actions.

Petitioner alleges that respondents violated Education Law §3101(3) by recouping eight days’ pay for April 4, through April 15.  Petitioner requests an order directing respondents to pay her for the eight days that were allegedly improperly recouped.

The school district responded to Petitioner's appeal to the Commissioner alleging that Petitioner [1] had failed to state a cause of action; [2] did not demonstrate that she had a legal right to the relief requested; [3] that the issue "is solely reviewable pursuant to the district’s CBA, not in an appeal to the Commissioner"; and, in any event, [4] Petitioner was not entitled to pay prior to the stated return date in her request for leave, April 16.

Addressing a procedural issue, the Commissioner noted that Petitioner's employee organization, on behalf of Petitioner, commenced a grievance proceeding pursuant to the CBA regarding this matter seeking identical relief after Petitioner had filed her §301 appeal the Commission and which grievance was still pending.

Commissioner Elia opined that "It is well-settled that a school employee who has elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal pursuant to Education Law §310 for review of the same matter." She then ruled that "[i]n light of the strong public policy favoring internal grievance mechanisms and the finality of grievance processes in collective bargaining that was articulated by the Court of Appeals in Matter of Board of Education, Commack UFSD v. Ambach , 70 NY2d 501, Petitioner’s employee organization's subsequent filing of a grievance on the same issue of contractual interpretation and seeking the same relief has "divested the Commissioner of jurisdiction over the determinative issue in this appeal."*

Even though Petitioner's §310 appeal was filed before the employee organization filed its contract grievance on behalf of Petitioner, Commissioner Elia concluded that she must dismiss Petitioner's appeal under the doctrine of election of remedies.  To hold otherwise, reasoned the Commissioner, would create an unacceptable risk of conflicting decisions interpreting the relevant CBA provision and that "a decision under Education Law §310 that conflicts with a final determination in grievance arbitration would be in violation of the principles articulated by the Court of Appeals [in Commack]".



* Editor's comment: The decision indicates that the Commissioner elected to yield jurisdiction to the arbitration process to avoid "an unacceptable risk of conflicting decisions interpreting the CBA and a decision by the Commissioner interpreting the Education Law. The courts, however, have held that in the event a CBA provision conflicts with a right provide to an employee by statute, the statute controls.



For example, New York State's Civil Service Law provides that a permanent employee's seniority controls in the event of a layoff. This element – seniority – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by City of Plattsburgh v Local 788, 108 AD2d 1045.


In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation. The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date that is to be used to determine an individual's service for seniority purposes under State law in the event of a layoff, i.e., the individual's date of initial permanent appointment in public service.


For example, assume Employee A was provisionally appointed on January 1, and  Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.


Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.


When the City laid off A rather than B, the Union grieved, contending that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A,  having
less seniority than B and had to be laid off before B.



Plattsburgh sought, and won, a  court order prohibiting arbitration. The court held that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.


It would appear that the rational set out in Plattsburgh should control in this instance. Absent legislative authority to enter into collective bargaining with respect to an employee benefit conferred by law, here the provisions of Education Law §3101(3), the law would control. 

The decision is posted on the Internet at:

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