Abolishment of probationer’s position prior to attaining tenure results in his or her appointment from a preferred list as a probationer

Abolishment of probationer’s position prior to attaining tenure results in his or her appointment from a preferred list as a probationer
Dickinson v Board of Education of the Deer Park Union Free School District, et al, Decisions of the Commissioner of Education, Decision No. 16,082
[Consolidated appeals: (1) reinstatement from a preferred list and (2) probationary termination]

Mary Dickinson was appointed as a remedial reading teacher by the Deer Park Union Free School District and on April 24, 2007 was granted tenure in reading effective August 31, 2007. However, on June 30, 2007 Dickinson’s was abolished and her name was placed on the district’s preferred list for a reading teacher position.

Deer Park then appointed Dickinson to a new position as a teacher of English Language Arts (“ELA”) effective September 1, 2007, a position in a separate tenure area from reading.

In March 2008 announcements were posted for anticipated vacancies for the 2008-2009 school year, including a vacancy for a reading teacher. Later that March Dickinson was notified that her position as an ELA teacher was abolished.

After learning that school board subsequently appointed another individual, Lynn Hadity, to the vacant reading teacher position Dickinson appealed, seeking reinstatement to the reading teacher position, with back pay, seniority and other benefits.

Dickinson contended that Deer Park “failed to notify her, and then recall her to the vacant reading teacher position, in violation of Education Law §3013.”

Deer Park's defense: Although it did not make any attempt to contact Dickinson directly about the vacancy, it took steps to publicize the available position and that it was Dickinson’s responsibility to notify the district of her interest in the vacant position.

The Commissioner said that “in accordance with Education Law §3013, the board placed [Dickinson’s] name on the preferred eligibility list and [Dickinson] was entitled to be appointed to any vacancy in a corresponding or similar position in the district for seven years, or on or until June 30, 2014.

Rejecting Deer Park's argument that “it was [Dickinson’s] obligation to notify the district that she was interested in the vacancy,” the Commissioner said there was “no such obligation in the Education Law.”

On the contrary, said the Commissioner, “since the district maintains the preferred eligibility list and manages vacancies, it is implicit that the district is required to make a reasonable effort to notify eligible persons of vacancies so that such persons may be afforded the opportunity to accept or decline a position.”

Finding that Deer Park “should have made a reasonable effort to directly notify [Dickinson] of the vacant position” and in failing to do so the school district violated Dickinson’s rights to reinstatement from the preferred list, the Commissioner ruled that she must be reinstated to a reading teacher position with back pay, seniority and benefits.

Accordingly, on June 23, 2009, the school board appointed Dickinson from the preferred list and placed her in a “different probationary reading position, effective July 1, 2009.” It simultaneously rescinded Dickinson’s April 24, 2007 “conditional tenure appointment … in the reading tenure area.”

At its July 28, 2009, the board voted to terminate Dickinson’s services effective August 31, 2009 and, again, Dickinson appealed to the Commissioner.

Dickinson argued that the board violated Education Law §§3013, 3020 and 3020-a when it recalled her to a probationary reading position on June 23, 2009, rescinded its prior conditional tenure appointment and terminated her services. She asked the Commissioner to void the board’s actions.

The board responded that Dickinson “was terminated prior to the attainment of tenure and that she is not entitled to the procedural protections set forth in §§3020 and 3020-a.”

Citing In Remus v. Bd. of Educ. for Tonawanda City School District, 96 NY2d 271, the Commissioner dismissed Dickinson’s appeal. In Remus, said the Commissioner, the Court of Appeals held that “a board of education resolution that grants tenure to a teacher effective on a specified future date ‘confers tenure upon the teacher only as of that specified future date.’”

Concluding that under the circumstances, Dickinson’s tenure never took effect because she had been laid off prior to "the effective date of her tenure," the Commissioner ruled that when Dickinson was recalled to a reading teacher position in June 2009, “she was a probationary employee and not entitled to the procedural protections of §§3013, 3020 and 3020-a.”

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16082.htm

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Out-of-title work

Out-of-title work
Macrae v Dolce, Appellate Division, 2nd Dept., 249 A.D.2d 476

City of White Plains firefighters brought an Article 78 action contending that the City was requiring them to regularly perform out-of-title work by serving as fire lieutenants in violation of Section 61.2 of the Civil Service Law. Section 61.2 bars out-of-title work except “during the continuance of a temporary emergency situation....”

Although the City persuaded the Supreme Court to dismiss the petition on the grounds that Macrae had failed to exhaust his administrative remedy “as required by their collective bargaining agreement,” the Appellate Division reversed the lower court’s action.

Article XVIII, the contract clause relied on by Supreme Court in making its determination, tracked the exception set out in Section 61.2 and provided that “no firefighter shall be ordered or required to perform outside of his job description except in an emergency situation.”

The Appellate Division said that this clause “was not intended to cover [Macrae’s] claim that firefighters are regularly required to perform the duties of fire lieutenant duties.” Accordingly, Macrae’s claim is outside the scope of the grievance procedure set out in the collective bargaining agreement and thus it was not necessary to “proceed to arbitration” before commencing this Article 78 proceeding.

Significantly, the Appellate Division noted that “... when the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and the parties’ reasonable expectations.”

Further, a court may not under the guise of construction, write into a contract conditions that were not included by the parties, nor may it construe contract language so as to distort the contract’s apparent meaning.

The error of the Supreme Court was that it viewed Article XVIII as requiring Macrae to file a contract grievance and arbitrate the claims. Because the alleged out-of-title work assignments were characterized as being “regularly assigned” to firefighters rather than the result of an “emergency situation,” the Appellate Division ruled that the firefighters were not compelled to “exhaust their administrative remedy” - here arbitration - before proceeding with this motion for a “declaratory judgment.”

The matter was returned to Supreme Court for its further consideration, including “the entry of an appropriate declaration.”

A union is not required to carry every grievance to the highest level to satisfy its duty of fair representation

A union is not required to carry every grievance to the highest level to satisfy its duty of fair representation
Delsante v CSEA Local 1000, AFSCME AFL-CIO, 2010 NY Slip Op 51145(U), decided on June 15, 2010, Supreme Court, Richmond County, Judge Judith N. McMahon [Not selected for publication in the Official Reports.]

Camille Delsante was serving her probationary period. After she received her first "Probationary Progress Report," which indicated that her time and attendance was unsatisfactory, she submitted her resignation stating that "I hereby offer my resignation from my position with the New York State Office of Parks, Recreation and Historic Preservation to seek other employment effective August 6th, 2008."

Kalliopi Zervos, a CSEA Labor Relations Specialist, met with Delsante to discuss her resignation and subsequently met with the Department's Associate Personnel Administrator, Joseph Lescinski, in an effort to resolve the dispute and possibly negotiate a rescission of the resignation.
After reviewing Delsante’s personnel record, Lescinski said that the appointing authority “would not rescind the resignation.” Zervos then advised Delsante that because of her probationary status she could not further pursue any grievance.

Delsante, contending that CSEA breached the duty of fair representation by failing to pursue a claim on her behalf, sued the union. In rebuttal, CSEA argued that it had fully represented Delsante but because of her probationary status the collective bargaining agreement limited the options for pursuing her claim. Accordingly, CSEA argued that it did not act in bad faith in not pursuing Delsante's claim.

Although Judge McMahon dismissed Delsante’s petition as untimely, she noted that although “academic,” Delsante’s petition would have been dismissed on the merits as CSEA “did not act arbitrary, discriminatory or in bad faith in addressing Delsante's claims.”

The court noted that with respect to claims based upon the alleged breach of a duty of fair representation, the charging party must establish that the union acted "deliberately invidious, arbitrary and founded in bad faith." Here, said the court, CSEA established that it pursued the avenues available to assist Delsante in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement Article §33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment".

Significantly, CSEA demonstrated that its representative met with Delsante; spoke with Mr. Lescinski in an effort to negotiate her reinstatement; and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited.

Citing Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, Judge McMahon said "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation.”

The court granted CSEA’s motion for summary judgment, dismissing Delsante’s petition in its entirety.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51145.htm

Court holds arbitrator’s misconstruing or disregarding the contract's plain meaning of no consequence as the determination was not irrational

Court holds arbitrator’s misconstruing or disregarding the contract's plain meaning of no consequence as the determination was not irrational
Matter of Buffalo Council of Supervisors v Board of Educ. of City School Dist. of Buffalo, 2010 NY Slip Op 05898, Decided on July 2, 2010, Appellate Division, Fourth Department

Buffalo had earlier negotiated with the Council and other employee unions in an attempt to persuade the unions to accept a single health insurance carrier plan in place of the multiple health insurance carrier plan then required by each union's collective bargaining agreement.* The Council refused to consent to the change and obtained an injunction to prevent respondent from imposing the single health insurance carrier plan on its members. After the School District laid off 26 of its members, allegedly “in anticipation of the budgetary shortfall” because of such refusal, the Council filed two contract grievances.

The Buffalo Council of Supervisors prevailed but Judge Donna M. Siwek, Supreme Court, Erie County, denied the Council CPLR Article 75 petition seeking to confirm the arbitration award that directed the Board of Education to reinstate 17 of its members that had been earlier laid off.

The Appellate Division, however, said that Supreme Court was incorrect in denying the Council’s petition in its entirety as the role of the courts with respect to disputes submitted to binding arbitration pursuant to a collective bargaining agreement is limited, and a court should not substitute its judgment for that of the arbitrator. Unless the arbitration award "is clearly violative of a strong public policy, . . . is totally or completely irrational, or . . . manifestly exceeds a specific, enumerated limitation on the arbitrator['s] power," the award must be confirmed.

As the arbitrator’s interpretation of the agreement to provide the Association with “an opportunity to be heard on the layoff and method of layoff of 26 assistant principals” is rationally based on the plain language of the relevant contract provision and to “the extent, if any, to which ‘the arbitrator may have misconstrued or disregarded the plain meaning of the contract’ is of no moment where, as here, the arbitrator's determination is not irrational.”

In contrast, said the Appellate Division, Supreme Court “properly refused to confirm that part of the arbitration award determining that [the school district violated Article 4 of the CBA] and directing [the school district] to reinstate all but the nine least senior assistant principals who had been laid off."

The arbitrator explicitly recognized that school district had the authority to lay off employees for economic reasons without violating the CBA but nevertheless concluded that the Council “bore a disproportionate share of the projected budgetary shortfall.” This was was incorrect as it was based on "the financial savings that resulted from the layoffs of Council's members against the $800,000 projected budgetary shortfall directly related to its refusal to accept the single health insurance carrier plan rather than against the $12 million projected overall budgetary shortfall for the fiscal year."

The court also faulted the arbitrator for failing to account for those laid-off employees who were not members of Council in his “determination of proportionality.” Accordingly, said the Appellate Division, “that part of the arbitration award is irrational because ‘there is no proof whatever to justify [it].'”

* (see generally Matter of Buffalo Teachers Fedn., Inc. v Board of Educ. of City School Dist. of City of Buffalo, 50 AD3d 1503, lv denied 11 NY3d 708).

The Council decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05898.htm

Disciplinary penalty reduced by court

Disciplinary penalty reduced by court
Catena v Village of Southampton, App. Div., 289 A.D.2d 487

The Village of Southampton dismissed Jeffrey Catena from his position as maintenance mechanic. Although Catena admitted his guilt, he appealed, contending that the penalty of dismissal was too harsh under the circumstances.

As a result Catena won a court order directing his reinstatement to his former position. In addition, the Supreme Court justice directed that Catena be given 60 days back pay and benefits. The Village appealed, contesting only that portion of the court's ruling requiring it to pay Catena 60 days of back pay.

The Appellate Division modified the back pay award, holding that the Village only had to pay Catena 30 days of back pay.

The Appellate Division said although Catena had admitted his guilt, which was supported by substantial evidence, "under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness" citing Pell v Board of Education, 34 NY2d 222.

In modifying the disciplinary penalty, the Appellate Division commented the Catena had 10 years of satisfactory service with the Village and his misconduct was an isolated event. The Village apparently agreed that dismissal was too harsh a penalty, as it did not appeal that portion of the Supreme Court's decision directing it to reinstate Catena to his former position.

Accordingly, said the court, Supreme Court properly granted the petition reinstating Catena. But the Supreme Court was incorrect when it awarded Catena 60 days back pay and benefits. Apparently the Supreme Court based this award on its belief that Catena was suspended for 60 days without pay or benefits.

The record indicated that Catena was actually suspended without pay for a period of only 30 days. The Appellate Division ruled that under the circumstances, his suspension for 30 days without pay or benefits is an appropriate penalty.