Settlement of grievance binds all unit employees

Settlement of grievance binds all unit employees

Decisions of the Commissioner of Education, Decision #10728

Former Section 3102 (6) of the Education Law (repealed in 1971) permitted School Boards to place newly employed teachers on the salary schedule reflecting prior teaching service.

In 1978 the Nanuet Teachers Association brought a grievance claiming the District had violated a contract provision by failing to properly calculate the length of service of teachers earlier granted “transfer credit.”

The grievance was “settled” in the course of arbitration. As a result 39 “otherwise eligible” teachers did not have their transfer credit counted in computing their eligibility for longevity increments.

The 39 educators appealed to the Commissioner of Education, contending claiming that the “settlement” was not binding upon them and, further, their employee organization did not fairly represent them.

The Commissioner rejected the appeal. He indicated that the 39 teachers, not having “opted out” were bound by the agreement. The employee organization had brought the grievance on their behalf (among others) and that part of the agreement (which provided the District would not reduce the number of teachers employed by the District) was to their benefit.

As to the argument that the agreement violated “unambiguous case law” regarding the recognition of transfer credit, the Commissioner ruled that teachers may waive their legal rights under situations such as this, and if done so on their behalf by the employee organization, it is binding upon them.

The expiration of the three-year term contemplated by the agreement did not alter the understanding reached as to transfer credit and the teachers could not now claim such credits as though the settlement had never been agreed to by the parties.

As a general rule, when an employee organization acts within its authority, all the persons it represents are bound by the results, unless individuals indicate, before the fact, that they do not intend to be bound by the results.

Taping of a negotiating session prohibited by PERB

Taping of a negotiating session prohibited by PERB

Matter of County of Niagara, Case U-5735

PERB, affirming its Hearing Officer’s decision, held even the presence of a tape recorder at a negotiating session is improper if a party objects.

Earlier decisions had indicated that it was improper for a party to insist on the recording (by mechanical means) of negotiations.

The decision extends the prohibition to the mere presence of a tape recorder if a party finds it objectionable.

Of course the parties remain free to take contemporaneous written notes of the “history of negotiations”, but presumably verbatim transcriptions would also raise concerns which could inhibit negotiations and be prohibited if a party objects.

Appeal results in a “permanent” reprimand

Appeal results in a “permanent” reprimand

Decisions of the Commissioner of Education, Decision 10933

A teacher was found guilty of insubordination (refusal to act as a chaperone at a school event) and the disciplinary panel imposed the “penalty of a reprimand, to be expunged from ... (the) records if for the next two years there are no further disciplinary problems of a similar nature.”

The school district appealed to the Commissioner of Education, arguing that the penalty was not authorized by Section 3020-a of the Education Law.

The Commissioner agreed. He found that the penalty to be imposed is limited to one of the penalties enumerated in the law but that a reprimand is one of the penalties authorized.

He then held that the disciplinary panel lacked the authority to direct the Board of Education to later expunge the reprimand from the teacher’s file for “good behavior.” [See Opinions of the Attorney General 81-28].

The Commissioner then exercised his authority to impose a penalty, and ruled that a reprimand would be appropriate under the circumstances.

Presumably the reprimand will remain a permanent part of the teacher’s file unless the Board chooses to later remove it.

Filing an appeal from an administrative decision in accordance with a grievance procedure does not toll the running of the statute of limitations for bringing an Article 78 action

Filing an appeal from an administrative decision in accordance with a grievance procedure does not toll the running of the statute of limitations for bringing an Article 78 action

Matter of Matter of Hazeltine v City of New York, 2011 NY Slip Op 08625, Appellate Division, First Department.

The Appellate Division, pointing out that an Article 78 petition challenging an administrative personnel decision with which the employee is unhappy must be brought within four months of the effective date of termination dismissed Hazeltine’s complaint noting that the time to commence such an Article 78 proceeding  “is not extended by the [individual’s] pursuit of administrative remedies.

Hazeltine had appealed the personnel decision to higher authority in accordance with the procedures providing for such challenges.

In this instance, said the court, Hazeltine’s cause of action accrued on August 24, 2007 and his petition was not filed until November 2, 2009, more than two years after his cause of action accrued.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2011/2011_08625.htm

Fire District’s adverse impact on another protected class defense rejected

Fire District’s adverse impact on another protected class defense rejected

Source: Justia Reports: NAACP v North Hudson Reg’l Fire and Rescue, USCA, Third Circuit, Docket 10-3695

The municipalities that make up the fire protection district had populations that were 69.6% Hispanic, 22.9% white, and 3.4% African-American. In 2008, the district employed 302 firefighters: 240 whites, 58 Hispanics, and two African-Americans.

When this litigation began, the district sought to fill 35 to 40 new firefighter positions. Six Hispanic applicants earned passing scores on the firefighter exam and satisfied a residency requirement. Based on their scores they ranked 21, 25, 26, 45, 49, and 70 on the residents-only list. They would rank much lower if non-residents were included on the same list.

The NAACP successfully sued under Title VII of the Civil Rights Act of 1964, claiming that the residency requirement was invalid as having a disparate impact on African-American applicants. The fire district and the Hispanic applicants appealed.

The Third Circuit affirmed, rejecting the district's claims of concerns about impact on Hispanic applicants.

The decision is posted on the Internet at:

http://law.justia.com/cases/federal/appellate-courts/ca3/10-3965/103965p-2011-12-12.html