Educator ineligible for unemployment insurance benefits between semesters after being assured of continued employment for the next semester

§590(10) of New York State's Labor Law provides that "professionals who are employed by educational institutions are precluded from receiving unemployment insurance benefits during the period between two successive academic periods if they have received a reasonable assurance of continued employment."

A part-time adjunct instructor [Claimant] at community college [Employer], received a letter informing him that it had scheduled him to teach during the fall semester, noting that the schedule was "dependent on anticipated student enrollment." The letter also advised Claimant that "[i]f for any reason your course(s) has to be eliminated, you will be notified by the Department Chair."

In June Claimant filed an application for unemployment insurance benefits.* The Department of Labor issued an initial determination finding that Claimant was ineligible to receive benefits because Employer had informed him that continuing work was available during the next academic year. Ultimately the Unemployment Insurance Appeal Board reversed this decision and found that Claimant was entitled to receive benefits because Employer "had not provided [Claimant] with a reasonable assurance of continued employment." Employer appealed the Board's ruling.

The Appellate Division noted that record indicated that Claimant taught three courses, consisting of nine credit hours, for the spring semester and earned approximately $10,766.79, an amount determined by the collective bargaining agreement in effect between the Employer and Claimant's union and that during the Spring semester Employer posted its fall course schedule online, listing Claimant as again being the instructor for three courses, also totaling nine credit hours.

Finding that the record showed that Claimant received a reasonable assurance of continued employment for the fall semester sufficient to show that that he was ineligible to receive unemployment insurance benefits, the Appellate Division ruled that the  Board's decision "must be reversed"

* In completing a Department of Labor questionnaire, in response to the question "[h]ave you been informed by the educational institution shown above that you will or may be working for them on a regular or substitute basis following the academic break," Claimant answered "yes," indicated that the offered position was that of adjunct instructor, that the dates of employment were from August to December and that he would be compensated at the "same rate of pay from [the] previous term."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02229.htm

Employee found guilty of violating New York City's ethics rules fined $20,000

The New York City Conflicts of Interest Board determined Plaintiff's teaching at the entity when he was scheduled to be working at DOE involved a conflict of interest and found him guilty of violating New York City's ethics rules. The penalty imposed: a fine in the amount of $20,000.

Plaintiff brought an Article 78 action challenging the Board's determination and the fine it imposed. The Appellate Division unanimously confirmed the Board's ruling and dismissed Plaintiff 's Article 78 petition.

Finding that there was no basis to disturb the credibility determinations of the Administrative Law Judge, the Appellate Division said that substantial evidence supported the Board's determination that Plaintiff's actions violated New York City Charter §§2604(b)(2) and 2604(a)(1)(b).

Addressing the Board's imposing a $20,000 penalty on Plaintiff, the Appellate Division said that the penalty imposed "does not shock one's sense of fairness in light of the egregiousness of [Plaintiff's] conduct," citing Bolt v New York City Department of Education, 30 NY3d 1065.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02163.htm

The penalty of termination held not so disproportionate to the offense so as to be shocking to one's sense of fairness” in light of the employee’s statement about “going postal”

A hearing officer, after a hearing conducted pursuant to Civil Service Law §75, found a “firehouse maintainer” [Petitioner] guilty of certain charges of misconduct and/or incompetence and recommended that the Petitioner be terminated from his position. The Fire District [District] adopted the findings and recommendation of the hearing officer and dismissed Petitioner from his position. Petitioner filed an appeal pursuant to CPLR Article 78 challenging the District’s decision.

The Appellate Division, sustaining the District’s action, noted that in addition to charges alleging excessive socializing and failure to complete assigned duties, Charge V, Specification 1, alleged that Petitioner stated that he "wanted to get a gun and go postal on this place."

Addressing Charge V, Specification 1, the hearing officer found that Petitioner had used the phrase "go postal" or "going postal," but he did not find that Petitioner used the word "gun." However, said the court, the hearing officer also determined that Petitioner understood the meaning of the phrase "going postal," and that the phrase reasonably could be interpreted as threatening.

Citing Matter of Thomas v Town of Southeast, N.Y., 168 AD3d 955 and other decisions, the Appellate Division explained that with respect to employee disciplinary cases, “judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence.”

Further, opined the court, "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists.”*

Further the court explained that any credibility issues were resolved by the hearing officer and substantial evidence in the record supported the determination that Petitioner was guilty of the misconduct and/or incompetence alleged some, but not all, of the Charges and Specifications filed against him.

Finally the Appellate Division noted that a court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, citing Matter of Waldren v Town of Islip, 6 NY3d 735 and indicated that although “... reasonable minds might disagree over what the proper penalty should have been does not provide a basis for . . . refashioning the penalty." Here, said the court, “the penalty of termination was not so disproportionate to the offense so as to be shocking to one's sense of fairness”, especially in light of the disturbing nature of the Petitioner's statement about “going postal”.

* See Matter of Grimaldi v Gough, 114 AD3d 679, 680, quoting Berenhaus v Ward, 70 NY2d 436 at 444.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_01496.htm

______________

A Reasonable Disciplinary Penalty Under the Circumstances 

A 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on
http://booklocker.com/books/7401.html.

Rescinding a resignation

An individual's notice that he or she has decided to withdraw, cancel or rescind the resignation may be received by the appropriate official or body before the resignation is actually "delivered" to such person or body. In such situations the courts usually rule that the receipt of a withdrawal of a resignation before the resignation itself is delivered effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

Although it is sometimes reported that "a resignation has been accepted," all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74) unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a collective bargaining agreement.

4 NYCRR 5.3(a) which controls with respect to employees of the State as an employer, provides that “Except as otherwise provided herein, every resignation shall be in writing. Further, 4 NYCRR 5.3(c) provides that once a resignation is received by the appointing authority or its designee, “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority [emphasis supplied].

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town of Pawling, accepting the petitioner's resignation from the position of town attorney, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Dutchess County (James D. Pagones, J.), dated October 30, 2018. The order and judgment granted the respondents' motion to dismiss the petition, and dismissed the proceeding.

The Appellate Division "ORDERED that the order and judgment is affirmed, with costs."

The petitioner was appointed town attorney for the respondent Town of Pawling, effective January 3, 2018. By letter dated May 11, 2018, addressed to the Town Supervisor, the petitioner gave notice of his intent to resign from the position "as soon as my successor has been identified, and the Town Board is ready to appoint him or her." On May 14, 2018, at the direction of the Town Supervisor, the petitioner's letter was delivered to the respondent Town Clerk, Cathy Giordano, who stamped and filed it in the regular course of business.

Thereafter, despite the petitioner's subsequent attempts to rescind his resignation, which were addressed to the Town Supervisor and the Deputy Town Supervisor, the Town Board accepted his resignation during a meeting on June 13, 2018, and hired a replacement town attorney.

The petitioner commenced this proceeding pursuant to CPLR article 78, contending that his resignation was ineffective, and that he was improperly terminated from his position as town attorney. The Supreme Court granted the respondents' motion to dismiss the petition, finding that the petitioner's resignation was effective, and that he never sought the consent of the Town Clerk for his resignation to be withdrawn or cancelled, in accordance with Public Officers Law § 31(4). We affirm.

Although the petitioner's written resignation was presented to the Town Supervisor instead of the Town Clerk, as required by Public Officers Law § 31(1)(g) and (2), we find that the statute was substantially complied with when the resignation letter was delivered by the Town Supervisor's legislative aide to the Town Clerk, who then filed it in the regular course of business [*2](see Matter of Popp v Town of Cornwall , 244 AD2d 492; Matter of Brescia v Mugridge , 52 Misc 2d 859, 863 [Sup Ct, Suffolk County], affd 29 AD2d 632). Therefore, the petitioner's resignation was effective.

Moreover, since it is undisputed that the petitioner never sought the consent of the Town Clerk to withdraw or cancel the resignation, we agree with the Supreme Court's determination to dismiss the proceeding based on his failure to exhaust administrative remedies (see Public Officers Law § 31[4]; CPLR 7801[1]).

RIVERA, J.P., CHAMBERS, MILLER and CONNOLLY, JJ., concur.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01175.htm

Challenges to the exclusion of certain compensation in the calculation of a member of a retirement system's pension benefit must be timely filed

Supreme Court granted the New York City Teachers' Retirement System's [CTRS] motion to dismiss an Article 78 action brought by a teacher [Educator] challenging its calculation of his retirement allowance. CTRS had argued that the Educator's action was untimely filed. 

Educator had challenged CTRS' calculation of the pension portion of his retirement allowance that had excluded his 2011 summer pay compensation in determining his retirement allowance in August, 2011. 

The Appellate Division unanimously affirmed the lower court's ruling, explaining that Educator was required to have filed his Article 78 petition challenging CTRS' decision within the applicable four-month statute of limitations, which began to run when CTRS' decision concerning the pension portion of Educator's retirement benefit became "final and binding on him" in October 2011 when Educator received "his benefits letter" from CTRS.

Further, said the Appellate Division, Educator's receipt of a letter from CTRS dated February 22, 2017 responding to his inquiry concerning his pension benefit stating that "there is nothing further than can be done" did not serve to extend the limitations period for Educator's bringing a timely Article 78 action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01968.htm

Employee terminate after violating employer zero drug policy

New York City Fire Department [NYFD] filed disciplinary charges against an emergency medical technician [EMT] in its Emergency Medical Dispatch unit [EMD] serving as a "call taker" alleging that EMT violated NYCFD's zero-tolerance drug policy after he had failed a random drug test and a follow-up drug test about administered about month later.

Section 6.1(D) of NYC's Emergency Medical Service Operating Guide "strictly prohibits, among others, the use of illegal drugs that can lead to impairment while on duty" and marijuana is included among its definition of "illegal drugs." Further, NYFD rules provide that for a positive drug test for an illegal drug, the penalty for a first offense is termination.*

New York City's Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison found no mitigation in EMT’s explanation for his use of marijuana and, in consideration of NYC's zero-tolerance drug policy, recommended EMT’s termination from his employment.

* Although NYCFD rules provide that the penalty to be imposed for a positive drug test for an illegal drug for a first offense is termination, NYFD has occasionally entered into agreements with uniformed members who tested positive for an illegal drug where penalties short of termination were imposed.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1004.pdf

Wearing a hearing aid is a reasonable accommodation under the circumstances

Final order of respondent New York State Division of Human Rights (DHR), dated November 15, 2017, which adopted the recommended order of the Administrative Law Judge, and determined, following a hearing, that petitioner New York State Unified Court System, Office of Court Administration (OCA) discriminated against respondent Jakub R. Zaic based on a disability, and directed petitioner to, inter alia, cease and desist from subjecting individuals to blanket exclusions from the court officer-trainee job title based on hearing loss or the use of hearing aids, pay a civil fine and penalty of $30,000, and pay respondent Zaic $5,000 in compensatory damages, unanimously confirmed, and the proceeding (transferred to this Court pursuant to pursuant to Executive Law § 298 by order of the Supreme Court, New York County [Shlomo Hagler, J.], entered June 8, 2018), dismissed, without costs.

The Commissioner's finding of discrimination is supported by substantial evidence. First, Zaic, currently a per diem court interpreter for OCA in its courts and in other courts, established a prima facie case that OCA discriminated against him on account of his disability of some hearing loss in his right ear (Melman v Montefiore Med. Ctr., 98 AD3d 107, 112-113 [1st Dept 2012]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 35 [1st Dept 2011], lv denied 18 NY3d 811 [2012]). Zaic sufficiently demonstrated that upon the provision of reasonable accommodation, namely, a hearing aid, he can perform in a reasonable manner the essential functions of a court officer-trainee (Executive Law § 292 [21]; Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 883-884 [2013]).

Among other things, Zaic passed the written test for the court officer-trainee position and was conditionally hired. In addition, although the job duties are different, he adequately performed the functions of court interpreter without a hearing aid and without complaints from those who used his services. OCA bans the use of hearing aids on the job or for the audiometric test to medically qualify for the position. Zaic was not obligated to be evaluated for and purchase a hearing aid, and to retake the audiometric test, at his expense, to further make his prima facie case after OCA made clear it still would deem him unqualified and reject such test results.

Permitting court officers to wear a hearing aid is a reasonable accommodation and would not, as OCA argues, impose undue hardship on OCA by posing any "direct threat," i.e. "a significant risk of substantial harm to the . . . safety of the employee or others" (9 NYCRR 466.11[g][2][I]; Executive Law §§ 292[21-e], 296[3][a]; Pimentel v Citibank, N.A., 29 AD3d 141, 145 [1st Dept 2006], lv denied 7 NY3d 707 [2006]). OCA cites only to the physical demands of the job and the speculative risk that a hearing aid could become dislodged in a [*2]scuffle or fail to operate in an emergency. OCA's argument is undermined by its own policy permitting court officer-trainee candidates to meet its vision standard with or without corrective lenses or glasses, which could be lost or become dislodged in a scuffle.

Next, OCA failed to provide any legitimate non-discriminatory reason for its decision. An individual may be denied employment because of a disability only if that condition will prevent him from performing in a reasonable manner the activities involved in the job or occupation sought, based on an individualized assessment of the specific individual (Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106-107 [1987]). No sufficiently individualized assessment occurred here, nor does OCA's formula take into account the ability of someone with asymmetrical hearing loss to perform the essential functions of a court officer-trainee.

Similarly, while OCA's preference for those with a minimal amount of hearing acuity might be a bona fide occupational qualification (Executive Law § 296[1][d]), its preference for hearing acuity without the use of a hearing aid is not.

Given OCA's blanket policy barring hearing-impaired persons from employment as court officers and its failure to accommodate Zaic who had an asymmetric hearing loss, the civil penalty of $30,000 was correctly assessed (Executive Law § 297[4][c] [a civil penalty below $50,000 may be assessed if an entity is found to have committed an "unlawful discriminatory act").

"Judicial review of an administrative penalty is limited to whether the measure or mode of penalty . . . constitutes an abuse of discretion as a matter of law . . . . [A] penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness'" (Matter of County of Erie v New York State Div. of Human Rights, 121 AD3d 1564, 1566 [4th Dept 2014], quoting Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; see also Matter of New York State Div. of Human Rights v International Fin. Servs. Group, 162 AD3d 576 [1st Dept 2018]). Further, we have upheld civil penalties if they were "reasonable" (Matter of Framboise Pastry Inc. v New York City Commn. On Human Rights, 138 AD3d 532, 533 [1st Dept 2016]). Here, the civil penalty was not an abuse of discretion. Nor was it was unreasonable.

The record contains substantial evidence to support the Commissioner's finding that Zaic is entitled to a compensatory damages award of $5,000 (Executive Law § 297[4][c][iii]; Matter of Framboise Pastry Inc. v New York City Commn. on Human Rights, 138 AD3d 532, 533 [1st Dept 2016]; see Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 216-217 [1991]; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143, 147 [1974]).

We have considered petitioner's remaining contentions and find them unavailing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01252.htm

Emergency rule making adopted by the State Comptroller addressing processing applications for retirement benefits during the COVID-19 state of emergency

On March 7, 2020 the Governor of New York State declared a state of emergency due to the COVID-19 virus. An emergency adoption of this rule is necessary for the preservation of the general welfare of the members, retirees and beneficiaries of NYSLRS. In order to maintain operation of the retirement system during this state of emergency, it is necessary to authorize the suspension of certain administrative and operational requirements related to the retirement system including, but not limited to, the processing and determination of applications for any form of retirement or benefit, and the conduct and scheduling of administrative hearings. 

Text of emergency rule: 

Add a new Part 383. Section 383.1 Addition or suspension of certain administrative and operational requirements during the COVID-19 state of emergency. 

On March 7, 2020 the Governor of New York State declared a state of emergency due to the COVID-19 virus. An immediate adoption of this rule is necessary for the preservation of the general welfare of the members, retirees and beneficiaries of NYSLRS. Effective immediately and notwithstanding any other law, rule or regulation to the contrary, the Comptroller may authorize the suspension of certain administrative and operational requirements related to the retirement system including, but not limited to, the processing and determination of applications for any form of retirement or benefit, participating employer reporting and the conduct and scheduling of administrative hearings. Such change in administrative and operational requirements will be effective for 90 days from the date of filing of this rule unless such emergency rule is readopted or rescinded prior to the expiration of such ninety day period. This notice is intended to serve only as an emergency adoption, to be valid for 90 days or less. 

N.B. This rule expires June 17, 2020. 

Text of rule and any required statements and analyses may be obtained from: Jamie Elacqua, Office of the State Comptroller, 110 State Street, Albany, NY 122236, (518) 473-4146, email: jelacqua@osc.ny.gov

An administrative decision made in the course of the exercise of discretion is not subject to judicial review

An employee [Petitioner] asked the New York City Administration for Children's Services [ACS] to approve his use of “advanced and extended sick leave” so that he could remain on the payroll during his absence from work. His request was denied and Petitioner initiated a CPLR Article 78 action seeking a court order in the nature of mandamus* requiring ACS to approve his request for such leave.

Supreme Court determined that Petitioner “was barred from compelling ACS to grant his leave request” by means of prosecuting an Article 78 action. The controlling regulations, opined the court,  governing the approval of such types of leave provided that the approval of an employee’s application was at the discretion of the appointing authority. Citing New York Civ. Liberties Union v State of New York, 4 NY3d 175, the court explained that  "mandamus does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial." Petitioner appealed the Supreme Court’s ruling.

The Appellate Division unanimously sustained the lower court’s decision, noting that ACS's decision was not subject to Article 78 review and Petitioner’s Article 78 action was properly dismissed.

* Latin for "We command." The writ of mandamus is an order from a superior body to an inferior body ordering the inferior body [or an individual] to perform, or refrain from performing, a particular act.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01443.htm

Attempting to withdraw a resignation after filing it with the appropriate individual or body

A Town Attorney [Attorney] sent a letter to the Town Supervisor  "giving notice" that the TA intended to resign from his position "as soon as [his] successor has been identified, and the Town Board is ready to appoint him or her." The Town Supervisor had Attorney's letter  delivered to the Town Clerk, whereupon the Town Clerk "stamped and filed it in the regular course of business." 

Notwithstanding Attorney's letters addressed to the Town Supervisor and the Deputy Town Supervisor "rescinding" his resignation, the Town Board hired a replacement town attorney. 

Attorney initiated an Article 78 action, contending that his resignation was ineffective and thus he had been "improperly terminated from his position as town attorney." The Supreme Court granted the Town's motion to dismiss Attorney's petition, finding [1] that Attorney's resignation was effective and [2] that Attorney never sought the consent of the Town Clerk to withdraw or cancel his resignation, an administrative procedure set out in Public Officers Law §31.4 that was available to him.*

The Appellate Division affirmed the Supreme Court's rulings, explaining that although Attorney's written resignation had been presented to the Town Supervisor instead of the Town Clerk as required by Public Officers Law §31(1)(g) and (2), opining that the relevant provisions of Public Officers Law §31 had been "substantially complied with when the resignation letter was delivered by the Town Supervisor's legislative aide to the Town Clerk, who then filed it in the regular course of business."**

Further, said the Appellate Division, Attorney "never sought the consent of the Town Clerk to withdraw or cancel the resignation," agreeing with the Supreme Court's decision to dismiss the proceeding based on Attorney's failure to exhaust his administrative remedies.

* Subdivision 4 of Public Officers Law §31 provides as follows: "A resignation delivered or filed pursuant to this section, whether effective immediately or at a specified future date, may not be withdrawn, cancelled, or amended except by consent of the officer to whom it is delivered or body with which it is filed." Similarly, 4 NYCRR 5.3(c), which applies to employees of the State as the employer and employees of entities for which the Civil Service Law is administered by the NYS Department of Civil Service, provides that "A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority." 

** See Hazelton v Connelly, 25 NYS2d 74. In contrast, the courts typically rule that the receipt of a withdrawal of a resignation by the appropriate individual or body before the resignation itself is delivered to that entity effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01175.htm

Educator disciplined for violating school policy

The arbitrator's decision has a rational basis and is supported by the evidence (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567-568 [1st Dept 2008]). The record shows that the arbitrator reasonably determined that petitioner was guilty of misconduct when he locked a 10-year old student out of the classroom and left him unsupervised in the hallway. Even if petitioner was justified in removing the student from the classroom, his actions in locking the boy out of the room, in a state of distress, and leaving him in the hallway without adequate supervision violated school policy (see Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, 419-420 [1st Dept 2013]).

The penalty of a 15-day suspension from employment does not shock our sense of fairness (see Matter of Ghastin v New York City Dept. of Educ., 169 AD3d 507, 508 [1st Dept 2019]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00976.htm

Determining if a dispute between the parties is arbitrable

In this hybrid Article 75 proceeding the Board of Education [Board] sought a court order pursuant to CPLR Article 75 permanently staying an arbitration and for declaratory relief. Supreme Court denied the petition and granted the motion of the Federation of Teachers [Federation] to compel arbitration. The Appellate Division affirmed the Supreme Court's ruling.

Federation had filed a grievance alleging that the Board a term and condition of the collective bargaining agreement [CBA] between the parties by failing to enforce a parking space assignment agreement between the Federation and the Civil Service Employees Association.

The Appellate Division, citing Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 153 AD3d 617, said that "Public policy in New York favors arbitral resolution of public sector labor disputes"  but that a dispute between a public sector employer and a public sector employee organization is only arbitrable if it satisfies a two-prong test.

The first prong of this two-point test to be satisfied is the absence of any statutory, constitutional, or public policy prohibition against arbitrating the grievance.

If the court finds that there is no such prohibition against the arbitration, it must determine if the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

In this instance the Board did not contend that arbitrating the Federation's grievance was barred by law or public policy. Accordingly, the issue to be addressed by the Appellate Division was the Board and Federation did, in fact, agree to arbitrate the particular dispute. To resolve this question the court must determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Recalling that in analogous cases "this Court had held that the arbitration provision of the CBA at issue here is broad,"* Moreover, the Appellate Division concluded that there was "a reasonable relationship between the subject matter of the dispute, staff parking, and the general subject matter of the CBA, including conditions of employment" and affirmed the decision of the Supreme Court.

* See Board of Educ., Yonkers City School Dist. v Yonkers Fedn. of Teachers, 110 AD2d 897, 898-899; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 81 AD2d 585; and Matter of Board of Education of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 49 AD2d 753.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_01343.htm