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February 28, 2023

Arbitrating an issue that was not an alleged violation of the relevant collective bargaining agreement

Are tenured public school teachers [Petitioners] bound by the results of an arbitration initiated by their union, the United Federation of Teachers [UFT], pursuant to Civil Service Law §209 to resolve an impasse over the implementation of the COVID-19 vaccine mandate? The relevant abitration "Impact Award", which Petitioners, employees of the New York City Department of Education [DOE], challenged in this hybrid Article 75/Article 78 proceeding, established a procedure for handling requests for religious and medical exemptions from a COVID-19 vaccine mandate.*

UFT had sought to negotiate the mandate's implementation with the DOE pursuant to their "mutual obligation" to "confer in good faith with respect to wages, hours, and other terms and conditions of employment," since the mandate was not part of the collective bargaining agreement [CBA] then in force. Ultimately UFT submitted a declaration of impasse to the State Public Employee Relations Board [PERB] due to several unresolved issues, including placement of unvaccinated employees on leave without pay.

The Appellate Division held that:

1. The Article 75 claims were properly dismissed by Supreme Court as Petitioners (a) lacked standing to challenge the Impact Award and (b) failed to join UFT as a necessary party;

2. The Article 75 claims failed on the merits; and

3. The Article 78 claims failed as Petitioners were unable to show that DOE made an error of law or acted irrationally.

The Appellate Division held that Supreme Court, in each proceeding, properly found the requirement that every DOE employee be vaccinated against COVID-19 - imposed by the vaccine mandate underlying these proceedings, the validity of which petitioners do not challenge here - is a "qualification of employment unrelated to job performance, misconduct, or competency" [citations omitted].

Although PERB appointed a mediator, UFT and DOE continued to disagree on many issues. The parties agreed to arbitrate those issues before their former mediator. The arbitrator issued the Impact Award, noting that the mandate "did not expressly provide for exceptions or modifications for those with any medical counterindications to vaccination or sincerely-held religious objections to inoculation."

Under the Impact Award, an employee granted an exemption or accommodation would be permitted to remain on the payroll, but would not be allowed "to enter a school building while unvaccinated, as long as the vaccine mandate is in effect," and "may be assigned to work outside of a school building ... to perform academic or administrative functions ...." Employees placed on leave without pay continued to be eligible for health insurance, but were prohibited from engaging in gainful employment during the leave period. If they became vaccinated during the leave period and provided proof by November 30, 2021, they would have a right of return to the same school within one week of submitting proof. 

Petitioners are similarly situated teachers employed by DOE. All received notification by email that they were being placed on Leave Without Pay (LWOP) status because they were not in compliance with DOE's COVID-19 Vaccine Mandate.

As a threshold matter, the Appellate Division rejected the dissent's assertion that only the legislature has the authority to impose a vaccine mandate as a condition of employment.

As to Petitioners' claims under CPLR Article 75, that the arbitrator acted in excess of jurisdiction and in violation of public policy, the Appellate Division opined that such claims failed not only on the merits but also due to Petitioners' lack of standing. When a union represents employees during arbitration, only that union - not individual employees - may seek to vacate the resulting award.

In addition, the Appellate Division found that Petitioners also failed to join UFT as a party and because the limitations period for Article 75 proceedings had expired, any action brought now against UFT would be untimely.

Further, said the court, as the arbitrator's authority did not arise from the terms of the existing CBA or from provisions of the Education Law governing disciplinary proceedings but was instead based on the Civil Service Law, Petitioners, who were not parties to the arbitration, cannot challenge the Impact Award because they cannot show that the arbitrator "exceeded his power".

The Appellate Division concluded that placing Petitioners' on leave for failure to prove vaccination, a condition of employment, is "unrelated to job performance, misconduct or competency" and does not constitute "teacher discipline".

Noting that "All concur except for Friedman, J. who dissents in part in a memorandum," the majority of the court held "Because [Petitioners] were given the opportunity to submit proof of vaccination, request religious or medical exemptions and accommodations if immunocompromised, or opt for extended benefits and severance on more favorable terms, their due process rights were not violated" and, in addition, Petitioners "were ably represented by their union in the mediation and arbitration that arose from the vaccine mandate." 

* The mandate was originally issued on August 24, 2021 by the Commissioner of the New York City Department of Health and Mental Hygiene.

Click HERE to access this decision by the Appellate Division posted on the Internet.

See, also, Matter of Athena Clarke, Petitioner-Appellant, et al.,
https://www.nycourts.gov/reporter/3dseries/2023/2023_00945.htm 

 

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