Will a probationary termination be upheld where a Chapter Leader, on probation, first started getting unsatisfactory reviews after she wrote a letter to the principal?

No. While it is a bit unusual that a probationer would accept the position of Chapter Leader such a decision was made by a Staten Island teacher. The teacher had performed and was rated satisfactorily up until she wrote a letter to the principal asking how she could make up prep periods. At that point the principal began rating her unsatisfactorily.

Both the Supreme Court and Appellate Division, Second Department found that the teacher’s probationary dismissal was in bad faith and reinstated her with back pay.

The Supreme Court had granted the teacher tenure which the Second Department found was something the Courts could not legally do and sent the matter back to the DOE for further proceedings.

 In the Matter of Lisa Capece, etc., respondent, v Margaret Schultz, etc., et al., appellants. (Index No. 80361/08), 2012-03257, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2014 N.Y. App. Div. LEXIS 3775; 2014 NY Slip Op 3834, May 28, 2014

 

Must a grievant stick to the strict time limits for arbitration in the CBA to preserve their right to arbitrate?

No. Most collective bargaining agreements contain time limits to bring grievances up to and including arbitration and generally have provisions which require that all disputes governing the interpretation of the collective bargaining agreement be resolved by arbitration.

In Rondout Valleya case recently decided by the Appellate Division, Third Department, a teachers’ union sought arbitration on a series of grievances which the school district claimed were untimely. The school district, rather than submitting the matter to an arbitrator to decide timeliness, went to Supreme Court and obtained a stay of arbitration based on the Court’s determination that the arbitration requests were late.

The Third Department reversed the lower court finding, “Where a collective bargaining agreement contains a broad arbitration clause, the question of whether a party has complied with the procedural requirements of the grievance process — such as time limitations — is to be resolved by an arbitrator absent “a provision expressly making compliance with the time limitations a condition precedent to arbitration” (citations omitted).

In the Matter of the Arbitration between BOARD OF EDUCATION OF THE RONDOUT VALLEY CENTRAL SCHOOL DISTRICT, Respondent, and RONDOUT VALLEY FEDERATION OF TEACHERS, Appellant, et al., Respondent. 514914, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT, 2012 N.Y. App. Div. LEXIS 8789; 2012 NY Slip Op 8862, December 20, 2012, Decided.

Does a felony conviction bar potential teachers from working for the Department of Education?

The Court of Appeals (our highest state court) has ruled that the DOE arbitrarily denied an applicant a security clearance to teach for a contracted employer. Madeline Acosta had applied for a position at Cooke Center for Learning and Development. She had been convicted of a 1st Degree Robbery, when she was 17, some 14 years before, and claimed to have been completely rehabilitated by earning a college degree and working as a paralegal.

Under the Correction and Executive Law it is unlawful for any public or private employer to deny any license or employment application “by reason of the individual’s having been previously convicted of one or more criminal offenses”

There are, however, two significant exceptions to this general prohibition. The first exception arises where “there is a direct relationship between one or more of the previous criminal offenses and the  specific license or employment sought or held by the individual” and the second exception allows for the adverse treatment of such applications where “the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

It is the second exception that concerned the court.

There are eight factors that potential employers must weigh and while the court found that it would be improper for a court to re-weigh the factors it felt that the overriding public policy to encourage rehabilitation of convicted felons outweighed, in this instance, the concerns that the employer might have.

The court ruled that it was arbitrary for the DOE to deny the security clearance.

Acosta v. NYCDOE, 2011 NY Slip Op 2073; 16 N.Y.3d 309; 2011 N.Y. LEXIS 437; 31 I.E.R. Cas. (BNA) 1840, March 24, 2011