July 16, 2018

Negotiating religious days off


Negotiating religious days off
Binghamton CSD v Binghamton T.A., NYS Supreme Court [Not selected for publication in the Official Reports]

The collective bargaining agreement between the Binghamton Central School District and the Binghamton Teachers Association provided for paid leave for "days for religious observance in accordance with a list agreed to by the parties." The list the parties later agreed upon set out "approved leave days" for observing a number of Christian, Jewish and Eastern Orthodox religious holidays.

When the district denied a teacher's request for paid leave to observe Ash Wednesday, a day of religious observation included on "the list," the teachers association filed a contract grievance. The grievance could not be resolved by the parties and the teachers demanded that the grievance go to binding arbitration.

The district objected  and sought a court order staying the arbitration. The district justified its position on the grounds that time off for a religious observance was unconstitutional because it violated the "Establishment Clause." It argued that any arbitration award in favor of the teachers association would violate law and public policy and thus be unenforceable.

To support its position, the district cited a PERB ruling [CSEA and Eastchester UFSD, 29 PERB 3041]. In the Eastchester case, PERB concluded that negotiating days off for religious observances was not a mandatory subject of collective bargaining.

The Court decided that in this instance the scope of the agreement to arbitrate was not the issue. Rather, the question to be resolved was whether or not "the particular subject matter of the grievance is an authorized subject of negotiation."

Noting that PERB had not ruled that the subject of the dispute -- paid leave for absences for a religious observance -- was a "prohibited subject of negotiations," the Court concluded that "once both sides do bargain and agree on a permissive subject [of negotiations], their accord is as binding and enforceable as if the subject had been one of required negotiations."

The bottom line: the court declined to grant the district's motion to stay the arbitration. Why? Because, the court explained, the district and the association were free to negotiate and ultimately contract, to submit the subject dispute to arbitration.

What about the constitutional issue raised by the district? The court decided that negotiating paid absence to observe religious holidays did not offend the Establishment Clause because "the leave provision negotiated neither forces nor prohibits religious participation, nor does it favor one particular religion over another...."

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