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Out-of-title work Article 78 petition dismissed for failure to exhaust remedy provided in the collective bargaining agreement

Out-of-title work Article 78 petition dismissed for failure to exhaust remedy provided in the collective bargaining agreement
CSEA v Groton Cent. School Dist., 2010 NY Slip Op 50982(U), Decided on June 7, 2010, Supreme Court, Tompkins County, Judge Robert C. Mulvey [Not selected for publication in the Official Reports]

CSEA complained that the library aide job assignments given to negotiating unit members Tracy Cooper and Elizabeth Hill violated the out-of-title prohibition contained in Civil Service Law Section 61.*

Cooper and Hill were appointed to non-competitive teacher aide positions by the Groton Central School District. CSEA filed a petition pursuant to CPLR Article 78 seeking a court order directing Groton to compensate both Cooper and Hill ?for all work performed in the higher level 'Library Clerk' job title.?

The school district, seeking summary judgment, submitted a verified answer to CSEA's petition and raised a number of objections and defenses.

The record indicated that Cooper and Hill, who held non-competitive teacher aide positions with the Groton Central School District, were informed that they would be assigned to the library in their respective schools for the 2009-2010 school year and their duties were designed to support the Library Media Specialists there.**

The two major arguments were advanced by the school district in support of its action:

1. Cooper and Hill were teacher's aides and properly placed in their respective school libraries to assist the teachers in charge of those libraries and that their continued classification as a "Teacher Aide" after such placement was in accordance with law and was neither arbitrary nor capricious; and

2. Neither Cooper nor Hill exhausted their available administrative remedies inasmuch as "their respective complaints were not processed through the contract grievance procedure available to them."

Judge Mulvey found this latter argument persuasive, noting that CSEA was the collective bargaining representative for both Cooper and Hill and they are bound by the terms of the collective bargaining agreement CSEA negotiated on their behalf.

The court said that ?the terms of the agreement appear to cover out-of-title work ? and ? the agreement establish a three-stage grievance procedure."

The record indicated that [a] none of the grievance procedures outlined in the agreement were initiated by either Cooper or Hill and [b] CSEA had not satisfactorily demonstrated that it initiated any grievance procedures. Under these facts, the Court concluded that CSEA's petition should be dismissed due the failure of Cooper and Hill to exhaust their available administrative remedies.

Further, said the Judge Mulvey, had the available administrative remedy been exhausted and the Article 78 action thereafter inititated, CSEA's petition would have been dismissed "on the merits."

Considering their alleged ?out-of-title? work claims, Judge Mulvey said that Cooper?s and Hill?s continued classification as Teacher Aides was appropriate and should not be overturned, noting that the fact that ?there is some overlap of duties performed by Cooper and Hill as teacher aides in the library and those of a ?Library Clerk? does not warrant the relief requested.?

According to the ruling, the record indicated that a significant portion of Cooper?s and Hill's duties involve supervision of children in the library as well as providing assistance to the Library Media Specialist. Such duties, the court said, are not included in the job description for a "Library Clerk."

Judge Mulvey ruled that the continued classification of Cooper and Hill as Teacher Aides has a rational basis and was neither arbitrary nor capricious and dismissed CSEA's Article 78 petition.

* Civil Service Law §61.2 sets out a prohibition against out-of-title work, providing that "No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work."

** Both employees started working in the libraries in September 2009 and their positions continued to be classified as non-competitive Teacher Aide ?with the approval of the Civil Service Commissioner of Tompkins County.?

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_50982.htm

Full post as published by New York Public Personnel Law on June 09, 2010 (boomark / email).