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Vindicating an employee's right conferred by law may not be resolved by filing a grievance pursuant to a collective bargaining agreement

Vindicating an employee's right conferred by law may not be resolved by filing a grievance pursuant to a collective bargaining agreement
Marino v Hauppauge UFSD, 262 AD2d 321

If a public employee claims that some action by his or her employer violated his or her statutory rights, may the employer insist that the issue be resolved by the employee filing a grievance under a Taylor Law contract grievance procedure? No said the Appellate Division in the Marino case.

Frank Marino sued his employer, the Hauppauge Union Free School District, alleging that the district had violated his rights under Section 3013 of the Education Law by reducing his annual salary by $4,148.* The district persuaded a State Supreme Court judge to dismiss Marino?s complaint, contending that Marino complaint should be resolved under the grievance procedure set out in the Taylor Law agreement then in place.

The Appellate Division overturned the lower court?s dismissal of Marino?s Article 78 action. The Appellate Division noted that the collective bargaining agreement did provide a grievance procedure to resolve ?any dispute between the parties concerning the interpretation of the terms and conditions of [the] agreement?. However, said the court, Marino had not raised any issue relating to the terms and conditions of his employment as set out in the agreement. What he was attempting to do was to ?vindicate rights conferred upon him by Education Law Section 3013(1).?

The courts have consistently ruled that the statutory rights of teachers whose positions are abolished pursuant to either Sections 3013 or 2510 of the Education Law may not be changed by a collective bargaining agreement.

For example, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, 539 NY2d 83, the Appellate Division, citing Cheektowaga v Nyquist, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority for the purposes of layoff.

Considering a conflict between the CAB and the Civil Service Law, in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.?Long Beach Unit, 8 N.Y.3d 465, the Court of Appeals said that where ?the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.?

The same is true with respect to Taylor Law contract provisions that adversely impact upon layoff rights vested in employees in the classified service by Sections 80 or 80-a of the Civil Service Law [see Plattsburgh v Local 788, 108 AD2d 1045].

The Appellate Division, citing a number of cases including Matter of Board of Educ. of Barker Cent. School District, 209 AD2d 945, concluded that Marino ?had every right to seek redress for the alleged violation of his statutory rights? by bringing a timely Article 78 action, ?even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.?

Why? Because, the court explained, ?the issues presented and the remedies sought in each forum were separate and distinct,? quoting from England v Commissioner of Education, 169 AD2d 868, among other cases, in support of its ruling.

* Section 3013 deals with layoff upon the abolishment of a position by a school district or a BOCES and provides, in pertinent part, for the reinstatement of a person who has been laid off to ?an office or position similar to the one which such person filled without reduction in salary or increment....?
NYPPL

Full post as published by New York Public Personnel Law on October 25, 2010 (boomark / email).