A school board’s “essential responsibilities” can’t be negotiated away

A school board’s “essential responsibilities” can’t be negotiated away

Sweet Home Central School District v. Sweet Home Education Association, 90 AD2d 683, affd, 58 NY2d 912 

The collective bargaining agreement [CBA] between the Sweet Home Central School District [District] and the Union permitted the District to "transfer" teachers subject to the teacher involved being advised of the reason(s) for the transfer and being given an opportunity to select from among  “current openings” for which the teacher was qualified. The contract also provided that wishes of the teacher were to be taken into consideration to the extent possible.

A music teacher grieved his “involuntary transfer out” as concert band director. The arbitrator directed the District to review the appropriate positions available with him and to permit him to select from among them. He further directed the District to permit the teacher to return to the concert band director position if he wished and the District was to “develop a program, with outside assistance, ‘to assure a smooth functioning’ of the concert band” were he to choose to return.

On appeal the arbitrator’s award was modified by the Appellate Division. The court explained that §1711 of the Education Law gave the Board a non-delegable responsibility to maintain adequate standards in the classroom and the District’s authority to assign and reassign teachers was essential to that responsibility.

“Public policy prevents a school district from bargaining away this responsibility,” said the court. In keeping with this view, the arbitrator was held not to have the power to direct the District to retain the teacher in the position from which he had been reassigned.

The Court then held that the CBA between the District and the Union could (and did) establish procedural rules regulating the District’s right to reassign teachers. That portion of the arbitrator’s award directing the District to comply with the procedural rules to which it had agreed was upheld.

Dismissal of disciplinary charges recommended because superior condoned the employee's alleged failure to follow department policy

Dismissal of disciplinary charges recommended because superior condoned the employee's alleged failure to follow department policy

OATH Index No. 866/13

A New York City juvenile counselor was charged with failing to conduct three inspections during a tour or duty as required. 

At the disciplinary hearing, however, the counselor proved that the ”three inspections” requirement had not been enforced by management for many years. 

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of charges.

The counselor admitted that she did not make three tours of inspection and testified that the failure to do so was a regular practice caused by an excessive work load.

Judge Zorgniotti found that the counselor had proved her affirmative defense of condonation and waiver by showing that her not making three inspections each tour of duty was condoned by supervisors. Further, said the ALJ, the employer did not show that it placed the counselor on notice that the “three inspection” during a tour of duty policy would be enforced

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-866.pdf

An alternative to a principal for each school

An alternative to a principal for each school

Matter of Mennella, Decisions of the Commissioner of Education Number 10851

Although the Regulations of the Commissioner of Education provide that each school in a District shall have assigned to it a qualified principal, waivers from that requirement may be obtained under appropriate circumstances.*

An example of this is found in the Commissioner’s decision in Matter of Mennella.

One issue involved Mennella's seeking an order to restore funds for an abolished position of principal. The District had decided to administer its two smallest elementary schools by assigning one principal and two assistant principals to them.

The Commissioner rejected Mennella's claim that the District could not do so, noting that earlier the District had been granted the required exemption each school have a principal. The Commissioner also noted that the assistant principals involved held valid elementary principal certificates and were qualified to perform the duties assigned to them.

* 8 NYCRR 100.2(a), addressing the administration of elementary and secondary schools, provides, in pertinent part, as follows: “The board of education of each school district shall employ and assign to each school under its supervision a full-time principal holding the appropriate certification as required pursuant to section 80.4(b) of this Title. Upon the submission of evidence that there are circumstances which do not justify the assignment of a principal to a particular school, or that another mode of building administration would be more effective, the commissioner may approve an alternative mode of building administration.”

The threshold decision as to the arbitrability of a matter is to be made by the court absent the parties “clear and unmistakable agreement to arbitrate arbitrability”

The threshold decision as to the arbitrability of a matter is to be made by the court absent the parties “clear and unmistakable agreement to arbitrate arbitrability”
In the Matter of the Arbitration of Sherwood (Kirkpatrick), 2013 NY Slip Op 05372, Appellate Division, Third Department

While a collective bargaining agreement (CBA) was in effect, the Dryden Central School District (District) and Dryden Faculty Association (Association) entered into a separate memorandum of understanding (MOU) in which the parties [1] recognized the Association as the bargaining unit representative for all regularly appointed registered professional nurses working in the District, [2] agreed upon the nurses' terms and conditions of employment, and [3] agreed that the terms and conditions set out in the MOU would remain in effect until incorporated into the next collective bargaining agreement following the expiration of the then current CBA

The District subsequently terminated a nurse represented by the Association* and the nurse grieved the District’s action. When the grievance was denied by the District the Association demanded that the matter be submitted to arbitration. In response the District initiated a proceeding to permanently stay arbitration. The Association counterclaimed seeking a court order to compel arbitration.

Supreme Court granted the District’s petition and permanently stayed the arbitration. The Association appealed, contending that an arbitrator, rather than a court, should decide whether the parties' dispute was arbitrable.

The Appellate Division disagreed with the Association, noting that the responsibility for this threshold determination lies with the courts unless the parties have "evinced a clear and unmistakable agreement to arbitrate arbitrability.” Here, said the court, neither the CBA nor the MOU contains any such agreement and thus Supreme Court properly addressed this issue.

The court explained that “It is well settled that ‘[a] party cannot be compelled to arbitrate in the absence of an express, direct and unequivocal agreement to do so,’" citing Matter of Massana Central School District, 82 AD3d 521.

While the CBA provides for arbitration as the final step of the grievance process, the MOU neither contains its own arbitration provisions nor explicitly incorporated those provisions as set forth in the CBA. Although the Association argued that the CBA's arbitration provisions apply to covered nurses as the MOU does not expressly exclude them, this argument, said the Appellate Division, is unsupported by the terms of the MOU and the rules governing contract interpretation.

The Appellate Division noted that the MOU specifically identified selected provisions of the CBA to be applied to covered nurses and set out detailed additional provisions on several other subjects, including procedures for discharging nurses and terminating their employment, but did not include the arbitration provisions. Accordingly, said the court, as the MOU neither mentions arbitration nor indicates that any CBA provisions other than those expressly stated will apply to nurses, read as a whole, the MOU “unambiguously reflects the parties' intention to establish independent terms and conditions of employment for nurses that do not include the CBA's arbitration provisions.”

The bottom line: Absent an "express, direct and unequivocal agreement" to arbitrate this dispute, the Appellate Division ruled that Supreme Court had properly granted the District’s application to permanently stay the arbitration. To hold otherwise, said the court, would violate the basic principle that "courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing"

* The Appellate Division noted that although the nurse's employment was terminated after the end date specified in the CBA, no new agreement has been negotiated, both the CBA and the MOU remain in effect under the Triborough Doctrine {Civil Service Law §209-a [1] [e]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05372.htm

An employee removed from his or her position by a civil service commission pursuant to Civil Service Law §50.4 is not entitled to a pre-termination hearing

An employee removed from his or her position by a civil service commission pursuant to Civil Service Law §50.4 is not entitled to a pre-termination hearing

95 AD2d 1005

Citing Mingo v Pirnie, 55 NY2d 1019, the Appellate Division ruled that "Contrary to the petitioner’s contention, her status as a permanent appointee in the competitive class of the classified civil service did not entitle her to a mandatory pretermination hearing under Civil Service Law § 75(1)(a), where the Nassau County Civil Service Commission relied upon Civil Service Law § 50(4) in revoking her payroll certification and directing the termination of her employment."

In Mingo a county civil service commission disqualified an employee following his permanent appointment and removed him from his position with the village pursuant to §50.4 of the Civil Service Law. The Commission had determined that the individual had “intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application”. 

The employee sued, contending that the commission could not disqualify him for employment in the position without first providing him with a pre-termination hearing.

The Court of Appeals rejected this argument, stating that §50.4 “requires no more than that the person be given a written statement of the reasons [for his or her disqualification for employment] and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification. No hearing is required.”

The Commission had found that the employee had falsified his application with respect to his experience and had concealed relevant facts related to his separation from previous employment.