As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination

As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination

Decisions of the Commissioner of Education, Decision No. 17,062

Susan Ford-Gambee Wilhelm filed a appeal with the Commissioner of Education challenging the action of the Board of Education of the Eden Central School District assigning her to teach five classes following a reduction in her position from a full-time position to a .83 full time equivalent [FTE] position. 

Wilhelm contended that she was a full-time teacher within the meaning of §100.2(i) of the Commissioner’s regulations "because she continued to teach five classes each day, which she contended is a 1.0 FTE." She claimed that Eden has improperly treated her position as a .83 FTE and compensated her on that basis, even though she contended that she was a full-time teacher.

The Commissioner said that the essence of Wilhelm's argument appeared to be that §100.2(i) defines a full-time teaching load as five classes and thus that she is entitled to compensation as a full-time teacher based on the classes she was assigned to teach by the school district.

§100.2(i), relating to teaching assignments, provides that, with respect to teaching staff in public schools, the number of daily periods of classroom instruction for a teacher should not exceed five. Further, said the Commissioner, pursuant to the regulation, "a school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy."

The Commissioner said that a petitioner, here Wilhelm, has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

Wilhelm, however, did not contend that her number of daily periods of classroom instruction exceeds five; admitted that she only taught five classes for the 2016-2017 school year; and did not claim that she was assigned a daily teaching load in excess of 150 students. Rather she argued that §100.2(i) defines a full-time teaching load as five classes and thus she was entitled to compensation as a full-time teacher. 

The Commissioner disagreed, explaining that §100.2(i) "merely establishes a policy that teachers should not be assigned more than five classes or a teaching load of 150 pupils and requires that a board of education be able to justify any such assignment, for the purpose of maintaining quality instruction for students." Further, said the Commissioner, the regulation does not define full-time status for purposes of compensation, noting that in Wilhelm's case, was governed by the applicable collective bargaining agreement.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17062

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits
Matter of Telemaque (Commissioner of Labor), 2017 NY Slip Op 02109, Appellate Division, Third Department

Veronica Telemaque appealed the decision of the Unemployment Insurance Appeals Board that she was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Telemaque had been found guilty and dismissed from her position after a hearing on disciplinary charges filed against her pursuant to Education Law §3020-a for allegedly engaging in misconduct, conduct unbecoming and/or prejudicial, insubordination and violating the employer's rules.

The Appellate Division said that Telemaque's primary challenge concerns the disciplinary Hearing Officer's factual and credibility determinations and alleged evidentiary errors were made at the disciplinary hearing. The Board noted that it did not appear that Telemaqueappealed that disciplinary determination and "her challenges to the merits of that determination may not be raised in this unemployment insurance proceeding."

As Telemaque had "a full and fair opportunity to litigate the charges of misconduct at [her §3020-a disciplinary] hearing, the Appellate Division said that the Board had "properly gave collateral estoppel effect to the Hearing Officer's factual determinations" in that proceeding and sustained the Board's determination.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_02109.htm 

Determining if the parties agreed to resolve a particular grievance pursuant to the terms of the arbitration clause set out in a collective bargaining agreement

Determining if the parties agreed to resolve a particular grievance pursuant to the terms of the arbitration clause set out in a collective bargaining agreement

County of Monroe (Civil Serv. Employees Assn., Inc., Local 828, Unit 7423, 2017 NY Slip Op 04602, Appellate Division, 4th Department

Civil Service Employees Association, Inc., Local 828, Unit 7423 [7423] filed a grievance on behalf of certain retired former employees of the Monroe County Sheriff's Department, all of whom retired prior to January 1, 2000, when a collective bargaining agreement [CBA] that covered the period between 1994 through 1999 was in effect.

The grievance alleging that Monroe County had had violated the CBA by unilaterally changing the subject retirees' post-Medicare health insurance benefits.

Monroe County contended that any such alleged unilateral change was subject to resolution pursuant to the grievance and arbitration procedure set out in the 2009-2012 CBA. 7423, however, denied that the parties had agreed to resolve retiree health insurance benefit disputes for those retiring prior to January 1, 2000, by submitting it to the grievance and arbitration procedure set out in the 2009-2012 CBA.

When Monroe County demanded arbitration pursuant to the 2009-2012 CBA, 7423 commenced this proceeding, and the County cross-moved to compel arbitration. Supreme Court granted 7423's petition, permanently staying arbitration, and denied the County's cross motion to compel arbitration. Monroe County appealed but the Appellate Division sustained the Supreme Court's ruling.

Citing City of Buffalo v A.F.S.C.M.E. Council 35, Local 264, 107 AD2d 1049, the Appellate Division, agreeing with Supreme Court, concluded that the rights of the subject retirees are governed by the 1994-1999 CBA, which was in effect when they retired.

Then, in order to determine whether the grievance was arbitrable under the 1994-1999 CBA, the Appellate Division initiated "the requisite two-step inquiry." As to the first step of its inquiry - was there any statutory, constitutional or public policy prohibition against arbitration of the grievance -- the Appellate Division said " it is undisputed that there is no prohibition against arbitration of the grievance."

The court then considered the "second step" of the inquiry -  "... whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration."

Addressing this second element of the "two-step inquiry," the Appellate Division concluded that Supreme Court had properly determined that the parties did not agree to refer to arbitration retiree health benefit disputes raised by former employees who had retired prior to January 1, 2000.

The decision of the Appellate Division notes that that a "grievance clause in the 1994-1999 CBA" specifically excludes retirement benefits from the grievance and arbitration procedure. Accordingly, the court dismissed Monroe County's appeal, sustaining Supreme Court's order granting 7423's petition to stay arbitration and denying the County's cross-motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04602.htm