School board not required to adjusting teaching schedules to avoid a layoff

School board not required to adjusting teaching schedules to avoid a layoff
Soukey v Cohoes City School Dist., Commissioner of Education Decision 14,106

Faced with a reduced work schedule or a perhaps layoff, a teacher may ask the school board to adjust the schedules of other teachers in order to retain him or her in a full-time position. Is the school board obligated to honor such a request?

This was one of the elements in Donna Soukey’s appeal to the Commissioner of Education. Soukey, tenured as a health teacher, was employed in a 6/10’s health teacher position following the abolishment of a full-time health teacher position by the district. Soukey was the least senior tenured health teacher at the time.

Soukey argued that the district “could have adjusted the schedules of other teachers ... to facilitate her assignment to classes within her various certification areas in order to retain her in full-time service.” She provided the Commissioner with examples of how the district could have accomplished this.

The Commissioner pointed out that a school board is “not required to shuffle the schedules of teachers in tenure areas other than health merely because [she] happens to hold certification in those areas.”

Noting that Soukey was the least senior teacher in the health tenure area, the Commissioner said that her services as a full time teacher were properly reduced. Commissioner Mills concluded that Cohoes was not required to make scheduling adjustments that would affect teachers’ services in any other tenure area in an effort to retain Soukey as a full-time employee.

The major element in Soukey’s appeal was her claim that she was not the least senior teacher in the health tenure area. The Commissioner ruled that there was nothing in the record to support overturning the district’s seniority determinations with respect to the several teachers in the health tenure area involved in this appeal.

Another aspect of the appeal concerned Soukey request for “reimbursement for the costs of bringing this appeal” as part of the relief she sought. The Commissioner responded by pointing out that he “lacks authority to award such costs and attorney’s fees in an appeal under Education Law Section 310” and dismissed this branch of Soukey’s appeal as well.

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Considering employee sick leave bank requests

Considering employee sick leave bank requests
Pocantico Hills CSD v Teachers Assoc., App. Div., 2nd Dept. 264 AD2d 397, Motion to appeal denied, 94 NY2d 759

The Taylor Law Agreement between the Pocantico Hills Central School District and the Pocantico Hills Teachers Association provided for a sick leave bank for use by teachers absent as a result of an “extended, serious illness or serious injury.”

Two teachers applied for contract sick leave bank credits in connection with their respective “extended post-pregnancy leave.” The district and the association deadlocked over the question of approving the use of sick leave bank credits for this purpose. The Taylor Law agreement provided that in the event the parties could not agree with respect to a request for use of sick leave bank credits, the question was to be referred to a mutually agreed upon physician. The physician selected by the parties concluded that the teachers’ pregnancies did not constitute “extended, serious illness or serious injury” within the meaning of the relevant provisions of the agreement.

Relying on this determination, the district denied both applications to use the sick leave bank for these pregnancy-related absences.

The association demanded that the issue be submitted to arbitration in accordance with the contract grievance procedure. The district objected and obtained an order from a State Supreme Court judge staying the arbitration [see Article 75, Civil Practice Law and Rules].

The Appellate Division affirmed the lower court’s determination. It said that the teachers’ eligibility for sick leave bank credits had been determined in accordance with the tie-breaking provisions of the agreement.

The court ruled that the grievance procedure, which expressly limited arbitration to grievances arising from the violation of specific terms and provisions of the agreement, was not available to the association in this instance.

The Appellate Division said that under the facts of this case, the Supreme Court judge had correctly determined that the denials of the applications filed by the two teachers fell outside the arbitration provisions of the agreement and thus its issuing a stay was appropriate.

Two additional arguments were advanced by the Association in support of its position. It contended that:

1. The provisions of the agreement relating to the sick leave bank are ill-suited to pregnancy-related leaves; and/or

2. Special consideration should be given to pregnancy-related leave requests.”

The Appellate Division rejected both of the arguments, commenting that these constituted “a matter for negotiation, not arbitration.”

If, on the other hand, the physician determined that the teacher suffered an “extended, serious illness or serious injury,” presumably the individual would be deemed eligible for sick leave bank credits notwithstanding the fact that the particular medical condition in question was pregnancy-related.
.NYPPL

Determining a union’s right to arbitrate

Determining a union’s right to arbitrate
Batavia CSD v Batavia Teachers’ Assn., App. Div., Fourth Dept., 265 AD2d 806
Jefferson County v Jefferson Co. Deputy Sheriff’s Assn., App. Div., Fourth Dept., 265 AD2d 802

The Appellate Division, Fourth Department, handed down two rulings that addressed efforts by public employers to prevent the arbitration of grievances filed by unions on behalf of members.

The Batavia Case

The Batavia Teachers’ Association demanded arbitration of grievances it filed on behalf of two certified teachers who were not selected to fill vacant interscholastic coaching positions. The association contended that [1] the district’s selection procedure violated the negotiated agreement’s contract provisions dealing with appointment to coaching positions and [2] uncertified applicants were “improperly appointed when certified candidates were available.”

Essentially the school district asked for the stay of arbitration because “public policy prohibits an arbitrator from reviewing the Board’s hiring decisions.”

Here, however, the Appellate Division viewed this argument as irrelevant under the circumstances. It said that the association was not seeking to arbitrate the school board’s exercise of discretion in making those hiring decisions. Rather, said the court, the association claimed that the Board did not adhere to its procedural obligations in making its hiring decisions.

Accordingly, although part of the relief sought by the two employees was their respective appointment to the coaching positions, the Appellate Division ruled that public policy did not prohibit submission of these two grievances to arbitration, affirming a state Supreme Court justice’s ruling denying the district’s petition to stay the arbitration.

In Port Washington Union Free School District v Port Washington Teachers Association, 45 NY2d 411, the Court of Appeals said that “[a] stay of arbitration on [public] policy grounds is ‘premature and unjustified’, even though the remedy sought may not, due to [public] policy concerns, be enforceable, where it is possible that the arbitrator may use his broad powers to fashion a remedy ‘adequately narrowed to encompass only procedural guarantees’”.

Accordingly, in determining whether a public sector grievance is subject to arbitration, the court must first determine is whether or not arbitration of the subject matter of the grievances is authorized by the Taylor Law. As the Court of Appeals said in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509, if the demand for arbitration passes this first test, the court must then determine if the parties appear to have agreed “by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.”

Finding that the collective bargaining agreement contained a broad arbitration clause and that there was a “reasonable relationship” between the subject matter of the dispute and the general subject matter of the parties’ collective bargaining agreement, the Appellate Division concluded that the two grievances should be submitted to an arbitrator. The court commented that once the arbitrator assumes jurisdiction over the grievances, he or she will:

1. Make “a more exacting interpretation of the precise scope of the substantive provisions of the Taylor Law agreement; and

2. Determine whether the subject matter of the dispute fits within such substantive provisions.


The Jefferson County Case

Jefferson County Deputy Sheriff Gary M. Belch was found guilty of disciplinary charges by an arbitrator. The sheriff, however, imposed a harsher penalty than the one recommended by the arbitrator. As a result, the union served a demand for arbitration, claiming that the sheriff had imposed the heavier penalty in retaliation for Belch’s exercising his right to submit the disciplinary action to arbitration.

The Appellate Division ruled that the County’s petition for a stay of the arbitration should be denied. Although Jefferson County contended that the Sheriff’s decision to increase the penalty recommended by the arbitrator is not subject to further arbitration, the court said it disagreed.

According to the ruling, “the allegation of retaliation is covered under the agreement’s definition of grievance,” and thus the proper procedure to address a grievance is arbitration. The court said that with respect to other grounds for staying the arbitration advanced by the county, “it is for the arbitrator to determine whether this arbitration is barred by collateral estoppel or res judicata.”

There was a technical element to this appeal that should be noted. The county’s petition was initially rejected by a State Supreme Court justice on the grounds that it was untimely. The Appellate Division, however, observed the union’s demand for arbitration was served on the sheriff, rather than the proper party -- the county.

Why wasn’t service on the sheriff proper? Because, said the court,” the sheriff was neither a party to the collective bargaining agreement nor an individual designated to accept service on behalf of [the county].”

This failure to comply with the service provisions of Section 7503 of the Civil Practice Law and Rules tolled the time limit for service of a petition to stay arbitration. The county was subsequently properly served with the demand and therefore its motion to stay the arbitration was held timely as measured from the date of “proper service” on it.

Why it is necessary for a party to go to court to obtain a stay of arbitration? Because if it refuses to participate in the arbitration and does not have the authority of the court in the form of a “stay of arbitration,” the arbitration can proceed “in absentia.” For example, in Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division ruled that an arbitrator may [1] proceed with a disciplinary arbitration notwithstanding the fact that the appointing authority refused to participate in the proceeding and [2] thereafter make a final, binding determination.

On the other hand, in Suffolk County v SCCC Faculty Association, the Appellate Division pointed out that if a party participates in arbitration when “it did not have to,” it cannot later seek to vacate the arbitration award “because it was not required to submit to the arbitration of the issue.”
.NYPPL

Appointment to the position of detective

Appointment to the position of detective
Ryff v Safir, App. Div., First Dept., 264 AD2d 349

The Ryff case sets out some standards that the Appellate Division, First Department, said should be considered in determining if a police officer who has temporarily served as a detective for at least 18 months is entitled to hold that title on a permanent basis without further examination.

Kevin T. Ryff, a New York City Police Department Harbor Unit Vessel Theft Team member, had been recommended for Detective Third Grade status by his commanding officer.

The recommendation reflected the commanding officer’s view that the duties of members of the Vessel Theft Team mirrored the investigative duties of the Detective Bureau investigators in the Auto Crime Division Special Operations Squad. Auto Crime Squad members were promoted to Detective Third Grade after 18 months of service.

New York City’s Administrative Code Section 14-103(b)(2) provides that any person who has received permanent appointment as a police officer and is temporarily assigned to perform the duties of a detective shall, whenever such assignment exceeds eighteen months in duration, be appointed as a detective and receive the compensation ordinarily paid to a detective performing such duties.*

The commissioner, however, rejected the recommendation, indicating that “the 18-month rule does not apply to the Harbor Unit Vessel Theft Team because that unit is not included in the ‘historical career path program’ it has for detective.” Ryff, however, persuaded a State Supreme Court judge to direct the commissioner to designate him a Detective Third Grade retroactive to the date he had completed 18 months of investigative service, with accompanying seniority and benefits. The Supreme Court judge ruled:

1. The commissioner “no longer has discretion to determine whether a particular assignment equals a detective function” and

2. It is the nature of the duties performed and whether they are equivalent to detective functions, not the specific unit in which they are performed, which is determinative” of whether the officer is entitled to be designated Detective Third Grade.

The Appellate Division, however, vacated the lower court’s order. Although the Supreme Court judge concluded that since Ryff “had performed “investigatory duties” for more than 18 months while with the Vessel Theft Team of the Harbor Unit, he was entitled to be designated as a Detective Third Grade with the requisite benefits,” the Appellate Division ruled that such a decision was premature. It said that a hearing was required to resolve two basic issues:

1. Does the scope of Administrative Code Section 14-103(b)(2) rest on the nature of the work performed and, if so,

2. Did Ryff’s work include “investigatory duties”?

Finding that the record was insufficient to determine whether the investigative duties actually performed by Ryff were comparable to those carried out by police officers who received detective status upon completion of 18 months of investigative duties performed in other units, the Appellate Division remanded the matter for a hearing to determine these two critical issues.**

This ruling suggests that such determinations must be made on a “case-by-case” basis and simply relying on the “official job description” will not be viewed by the courts as sufficient.

* New York State Civil Service Law Section 58.4(c), to the extent that it provided that sworn officers of municipal jurisdiction other than the City of New York were to be deemed “permanently appointed” as a detective after having temporarily served as a detective for at least 18 months, was held to violate Article 6, Section 5 [the “merit and fitness” requirement] of the State Constitution [Wood v Irving, 85 NY2d 238, 1995]. Chapter 134 of the Laws of 1997 was adopted in an effort to meet this criticism by the Court of Appeal, wherein the legislature stated “that an individual who performs in an investigatory position in a manner sufficiently satisfactory to the appropriate supervisors to hold such an assignment for a period of eighteen months, has demonstrated fitness for the position of detective or investigator within such police
or sheriffs department at least as sufficiently as could be ascertained by means of a competitive examination.”

** Ryff served as a member of the Police Department’s Harbor Unit’s Vessel Theft Team from April 4, 1995 to February 28, 1997, when he retired.
.NYPPL

AIDS phobia

AIDS phobia
Libasci v Rockville Centre Housing Auth., NYS Supreme Ct., Nassau County, [Not selected for inclusion in the Official Reports]

Libasci and a fellow Rockville Centre sanitation worker, Joseph DeJesus, were removing trash from the Rockville Housing Authority when an insulin needle protruding from a trash bag stuck Libasci.

Libasci was treated at the South Nassau Communities Hospital Emergency Room and given a tetanus shot. Subsequent blood tests were negative for infectious diseases.

On February 18, 1997, Libasci sued for negligence based what State Supreme Court Justice McCaffrey described as “AIDS phobia.”

Justice McCaffrey said that “[I]n order to maintain a cause of action for damages due to the fear of contracting AIDS a rational belief of infection, standing alone, is inadequate. A plaintiff who has not tested seropositive must offer proof of ‘actual exposure’, that is of both a scientifically accepted method of transmission of the virus (in this case a needle puncture) and that the source of the allegedly transmitted blood or fluid was in fact HIV-positive...,” citing Brown v. New York City Health and Hospitals Corporation, 225 AD2d 36.

The court said that summary judgment in favor of the authority was justified because Libasci acknowledged that he “does not know the original owner of the needle or of his or her medical condition” and there was no admissible evidence to demonstrate that the needle was infected.
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