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An appointing authority may, during collective bargaining, lawfully agree to limit its right to discharge a probationary teacher during probation

An appointing authority may, during collective bargaining, lawfully agree to limit its right to discharge a probationary teacher during probation
Matter of Hampton Bays Union Free School Dist. v Public Empl. Relations Bd., 2009 NY Slip Op 03656, Decided on May 7, 2009, Appellate Division, Third Department

The Hampton Bays Teachers' Association filed an improper practice charge against the school district pursuant to Civil Service Law § 209-a (1) (a) and (d) after the district refused to furnish documentation underlying its termination of a probationary physical education teacher before her probationary period expired.

The Association asked for these documents in order to decide if the school ?acted in an arbitrary, capricious or discriminatory manner in terminating the teacher in violation of the collective bargaining agreement? between it and the district.

A PERB Administrative Law Judge ruled that Hampton Bays UFSD commited an improper practice when it failed to provide the requested material to the Association and directed it to do so. On administrative appeal, the Public Employment Relations Board affirmed its Administrative Law Judge?s decision.

The Appellate Division said that ?Article XII (A) (1) of the parties' collective bargaining agreement pertains to probationary teachers and sets forth general guidelines concerning the period of employment, annual evaluations and tenure decisions. The provisions of Article XII (A) (1) ?are not subject to the Grievance or Arbitration Procedure, except if the [Association] feels that [the district] acted capriciously, arbitrarily, or discriminatorily; and in such event, the [Association's] rights shall be limited only to the Grievance Procedure? (Collective Bargaining Agreement, Article XII [A] [2] [emphasis added by the court])."

Here, said the court, in requesting documentation concerning the teacher's termination, the Association was clearly invoking this exception. Thus, and contrary to the school district?s claim, the Association had a legitimate contractual basis for the information and thus the district's failure to provide the employee organization with information relevant and material to its investigation or prosecution of a potential grievance constituted an improper practice.

The school district contended that it took action against the teacher under Education Law §3031 and therefore it had no statutory obligation to produce information concerning the teacher's termination.*

The Appellate Division rejected the school district?s theory, ruling that the Association is not asserting rights under Education Law §3031; it is asserting rights under the collective bargaining agreement which, as set out above, prohibits the school district from conducting itself in an arbitrary, capricious or discriminatory manner with respect to probationary teachers and which permits a grievance on that basis.

Significantly, said the court, the Court of Appeals has clearly held that a school district, through collective bargaining, "may legally agree . . . to limit or to forego its right to discharge a probationary teacher during the period of probation," citing Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774.

Considering the ?contractual limitation? on the school district?s evaluation and termination of a probationary teacher during the period of probation, the Appellate Division said that PERB's counterclaim for enforcement of its remedial order is proper and granted its application.

* §3031 of the Education Law addresses the procedure to be followed by a school district when tenure will not to be granted to a teacher at conclusion of probationary period or when his or her services are to be discontinued prior to the end of his or her probationary period.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03656.htm

Full post as published by New York Public Personnel Law on May 08, 2009 (boomark / email).