Opinion
453214/2015
05-24-2016
The Board of Education of the City School District of the City of New York, and CARMEN FARIÑA, as Chancellor of the City School District of the City of New York, Petitioners, For a Judgment Pursuant to Article 75 of the Civil Practice Law and Rules, v. United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, Respondent.
For Petitioner Board of Education New York City Law Department KAREN SOLIMANDO 100 CHURCH ST NEW YORK, NY 10007 (212)356-2450 For Respondent UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO RICHARD E. CASAGRANDE MICHAEL JAMES DEL PIANO of Counsel 52 Broadway FL 9 New York, NY 10004 (212)533-6300
For Petitioner Board of Education New York City Law Department KAREN SOLIMANDO 100 CHURCH ST NEW YORK, NY 10007 (212)356-2450 For Respondent UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO RICHARD E. CASAGRANDE MICHAEL JAMES DEL PIANO of Counsel 52 Broadway FL 9 New York, NY 10004 (212)533-6300 Carol R. Edmead, J.
On November 25, 2015, respondent United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO (UFT), demanded arbitration of an unresolved matter, pursuant to the Collective Bargaining Agreement (CBA) between UFT and petitioners the Board of Education of the City School District of the City of New York (BOE), and Carmen Fariña, as Chancellor of the City School District of the City of New York (together, the BOE). In motion sequence number 001, the BOE moves, pursuant to CPLR 7503 (b), for an order staying the arbitration. In motion sequence 002, the UFT moves, pursuant to CPLR 7503 (a), for an order compelling arbitration. Motions with sequence numbers 001 and 002 are hereby consolidated for disposition.
The BOE refers to itself in the papers as the NYCDOE.
BACKGROUND AND FACTUAL ALLEGATIONS
The UFT is the union for teachers and other non-supervisory staff, including "per session" teachers. Per session activities are those run and paid for by the BOE outside of regular school hours. A teacher who applies for and is accepted to perform a per session activity will be compensated at the per session rate. The CBA sets forth, among other things, the specific rate of pay and working conditions for these per session employees.
The BOE provides numerous after-school programs for the schools in New York City. These programs are staffed by the BOE staff, who are represented by the UFT, and staffed by employees of Community Based Organizations (CBOs), who are not represented by the BOE. There are CBOs in "nearly all" of the BOE schools, providing "a variety of academic, social, emotional, recreational, vocational and civic learning opportunities. . . ." Petition, ¶ 8.
Prior to the 2015-2016 school year, the BOE provided the after-school program at New York City Lab Middle School for Collaborative Studies (M312) (Lab Middle School). This program was staffed by UFT members on a "per session" basis. On June 12, 2015, the principal at Lab Middle School informed the staff that its after-school program would be subcontracted out to Manhattan Youth Recreation and Resources, Inc. (Manhattan Youth), for the following year. Manhattan Youth would now be the employer for all UFT members who provide services in the after-school program. Manhattan Youth is a CBO "that has provided after school programs - which have included sports, academic support, arts, literacy and other programs - for over a decade in many elementary and middle NYC schools." Petition, ¶ 9.
Pursuant to the CBA, on September 21, 2015, the UFT filed a grievance (Lab School Grievance), alleging that the BOE was in violation of Articles 1, 15, and 20 of the CBA by "conducting after school programs at NYC Lab Middle School. . . ." Petition, exhibit E. According to the UFT, UFT members who work for Manhattan Youth in Lab Middle School's after-school programs would not receive the same benefits as when they were working under the CBA as per session employees. In addition, as this would no longer be exclusive union work, Manhattan Youth would be permitted to provide its own staff, who are not UFT members.
Article 1 of the CBA, entitled Union Recognition, lists the types of UFT members, and states that the BOE recognizes the UFT as the exclusive bargaining representative for the UFT members.
Article 15, entitled Rates of Pay and Working Conditions of Per Session Teachers, lists the rates of pay for per session UFT members. The article defines the different programs that are considered a BOE per session activity and allots the maximum number of sessions a year per activity.
A session was "defined as two (2) clock hours beyond the school day." (CBA at 86, 88). For example, an assistant coach for a crew team would have 36 sessions per year.
The list is comprehensive, including UFT teachers employed as coaches of a team, teachers in charge of the school magazine, teachers working in the "All City High School Music Program," adult education teachers, teachers employed in the New Suspension Program's summer school program, among many other positions. Sick leave is addressed, as well as retention rights of those with continuous satisfactory service in per session activities. Per session teachers who receive U ratings are entitled to review procedures under the by-laws. Article 15 does not discuss the implications for per session teachers of the subcontracting of these activities or other after-school activities. There is also nothing in the Article stating whether these activities or others are exclusively union work.
Article 20 is entitled Matters Not Covered, and, among other things, states that "All existing determinations, authorizations, by-laws, regulations, rules, . . . and other actions, made, issued or entered into by the [BOE] governing or affecting salary and working conditions of the employees in the bargaining unit shall continue in force during the term of this Agreement, except insofar as change is commanded by law." It further states that, "With respect to matters not covered by this Agreement which are proper subjects for collective bargaining, the Board agrees that it will make no changes without appropriate prior consultation and negotiation with the Union."
The CBA provides a grievance procedure that, when applicable, proceeds to binding arbitration. A grievance is a "complaint" by an employee represented by the UFT regarding, among other things, an alleged "violation, misinterpretation or inequitable application" of a provision in the CBA. BOE's exhibit D, Article 22 of the CBA at 122. A complaint is not considered a grievance, if, in relevant part, "a method of review is prescribed by law. . . ." Id. According to the CBA, the definition of a grievance is as follows, in pertinent part:
"A grievance' shall mean a complaint by an employee in the bargaining unit (1) that there has been as to him/her a violation, misinterpretation or inequitable application of any of the provisions of this Agreement or (2) that he/she has been treated unfairly or inequitably by reason of any act or condition which is contrary to established policy or practice governing or affecting employees, except that the term grievance' shall not apply to any matter as to which (1) a method of review is prescribed by law, or by any rule or regulation of the State Commissioner of Education having the force and effect of law, or by any bylaw of the Board of Education or (2) the Board of Education is without authority to act.Id.
"In the case of per session employees, a grievance' shall mean a complaint by a per session employee that there has been as to him/her a violation, misinterpretation or inequitable application of any of the provisions of this Agreement covering his/her particular per session employment."
On October 16, 2015, the UFT also filed an improper practice charge with the Public Employment Relations Board (PERB), alleging that the BOE's "unilateral action in subcontracting the Lab Middle School After School Program to Manhattan Youth violates [the BOE's] duty to bargain with the UFT under the Taylor Law and constitutes an improper practice under Civil Service Law 209-a (1) (d)." BOE's exhibit B at 6. The UFT claimed that its members had a reasonable belief that they could continue to teach at the after-school program on a per session basis. However, as a result of the alleged improper changes, these UFT members have to re-apply for their positions with the new employer, Manhattan Youth, with no assurances that they will regain the position.
The PERB is an independent state agency that is authorized to enforce and resolve improper employer practices that are defined in sections 200-214 of the Civil Service Law (a/k/a the Taylor Law).
At a pre-conference hearing for the PERB charge, the UFT advised the administrative law judge (ALJ) about the Lab School Grievance that had been commenced that may ultimately lead to arbitration. The ALJ declined to defer the matter to arbitration and the PERB charge is scheduled for a hearing.
As the September 21, 2015 Lab School Grievance had not yet been resolved by the BOE, on November 25, 2015, the UFT advised the BOE that it intended to "submit this matter to arbitration." Petition, exhibit F at 2.
On November 25, 2015, there was an email correspondence between the UFT and the BOE regarding possible dates for arbitration. The UFT attached its proposed "cases to be scheduled" January calendar, and the BOE advised the UFT of what dates it would be able to schedule an arbitration regarding the "UI NYC Lab Middle School matter." Aff of David Campbell, exhibit B at 1.
On November 30, 2015, there was a conference regarding the Lab School Grievance. At the conference, the UFT argued that the BOE violated the CBA by sub-contracting Lab Middle School's after-school program to Manhattan Youth. The BOE states that, during the conference, it stated its position that the matter was not arbitrable.
Shortly after the November 30, 2015 conference, the BOE filed this petition to stay the arbitration.
According to the BOE, the Lab School Grievance is not a grievance as defined in the CBA, because there is no contractual provision relating to the UFT's claim. As a result, the BOE contends that it should not be required to arbitrate a claim that it did not agree to arbitrate. While Article 15 of the CBA discusses rates of pay and other benefits of per session teachers, there is no mention as to whether activities outside of school must be exclusively assigned to UFT teachers. According to the BOE, the "CBA does not state whether or not after school activities constitute exclusive union work and does not state that once a school retains UFT teachers to staff an after school activity it is required to continue using UFT staff in perpetuity." Petition, ¶ 26. Moreover, the BOE alleges that the parties could have negotiated a provision that would preclude subcontracting, but did not do so.
Regardless, the BOE claims that, because the Taylor Law provides a method of review for this type of improper practice charge, the Lab School Grievance would be excluded from arbitration, as per the CBA. This dispute regarding subcontracting certain work to non-union employees is allegedly "within PERB's exclusive jurisdiction." Petition, ¶ 28.
The BOE argues that it did not participate in the arbitration process. According to the BOE, when it received the intent to arbitrate, it only discussed possible arbitration dates. The BOE continues that, when it learned the substance of the grievance at the grievance conference, it stated its position that the matter is not arbitrable.
In its motion to compel arbitration, the UFT claims that the BOE violated the CBA when one if its schools contracted with Manhattan Youth to provide the after-school program. According to the UFT, the subcontracted out after-school program is still a BOE-controlled program, and the BOE is "us[ing] Manhattan Youth as a pass through to pay employees." Michael Del Piano (Del Piano) reply affirmation, ¶ 17. It claims that the BOE selects "what programs and activities to offer and the rate of pay for UFT members who continue to work for the Lab After School Program during the 2015-2016 school year." Id., ¶ 18. The UFT further alleges that the Manhattan Youth program is advertised as the BOE's program and only Lab Middle School students may attend.
According to the UFT, the CBA's grievance provision is broad and "there is a reasonable relationship between the matters set forth in the UFT's grievance and the provisions of the CBA . . . ." Id., ¶ 51. Specifically, the UFT maintains that the Lab School Grievance is arbitrable because it encompasses violations of a UFT member's benefits, including salary, pension and retention.
The UFT seeks to compel arbitration, arguing that the BOE's actions have indicated a commencement of the arbitration process, because the BOE participated in the selection of potential dates and arbitrators for the Lab School Grievance. In addition, at no time during the scheduling process did the BOE reserve the right to challenge arbitrability. Therefore, the UFT argues that the BOE waived its right to seek a judicial stay of arbitration.
The UFT does not believe that PERB has exclusive jurisdiction over the Lab School Grievance. According to the UFT, as the matter is allegedly contractual, the PERB has no jurisdiction. The UFT claims that the PERB will only determine whether or not the BOE's conduct constitutes an improper practice charge pursuant to the Taylor Law.
DISCUSSION
Pursuant to CPLR 7503 (b), a party "may apply to stay arbitration on the ground that a valid agreement was not made [internal quotation marks omitted]." Stone v Noble Constr. Mgt., Inc., 116 AD3d 838, 839 (2d Dept 2014). The issue of arbitrability is determined by the court. Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 45 (1997). When deciding whether a dispute is arbitrable, "the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute." CPLR 7501.
The court must engage in a two-step inquiry to determine whether a public sector grievance is arbitrable. Matter of Board of Educ. of Watertown City School Dist. (Watertown Educ. Assn. ), 93 NY2d 132, 137 (1999). The first step is to "determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance [internal quotation marks and citations omitted]." Matter of County of Rockland v Correction Officers Benevolent Assn. of Rockland County, Inc., 126 AD3d 694, 695 (2d Dept 2015). If no prohibition exists, the court "must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute [internal quotation marks and citations omitted]." Id.
The court must "determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA [internal quotation marks and citations omitted]." Matter of Board of Educ. of Yorktown Cent. Sch. Dist. v Yorktown Congress of Teachers, 98 AD3d 665, 667 (2d Dept 2012). If there is no reasonable relationship, the matter is not arbitrable. Matter of Board of Educ. of Watertown City School Dist. (Watertown Educ. Assn.), 93 NY2d at 143. If there is, the matter is arbitrable and the arbitrator "will then make a more exacting interpretation" of the scope of the CBA. Id. Nonetheless, in the public sector, an intent to arbitrate disputes relating to a collective bargaining agreement may not be presumed. Matter of County of Rockland v Correction Officers Benevolent Assn. of Rockland County, Inc., 126 AD3d at 696.
Applying the standard to the case at hand, there is no prohibition against arbitration as "[t]he Taylor Law empowers and, in fact, requires a public employer to bargain with employee organizations and to enter written agreements governing the terms and conditions of employment." Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 518 (2007). Accordingly, the court must determine whether or not the parties agreed to arbitrate the Lab School Grievance. In pertinent part, grievances are defined as violations, misinterpretations or inequitable applications of any of the provisions of the CBA. "[I]t must be taken, in the absence of clear, unequivocal agreement to the contrary, that the board of education did not intend to refer differences which might arise to the arbitration forum," and such reference may not be based on implication [internal quotation marks and citation omitted]. Matter of Board of Educ. of Valhalla Union Free Sch. Dist. v Valhalla Teachers Assn., 112 AD3d 620, 621 (2d Dept 2013).
The UFT argues that the Lab School Grievance is a violation of Articles 1, 15 and 20 of the CBA. In relevant part, for various reasons, the UFT claims that the Manhattan Youth program still remains a BOE program. Therefore the per session employees who worked in that program should be entitled to stay employed in that program, while earning the per session rate. In addition, the UFT claims that the BOE violated the CBA by permitting non-UFT employees to work at the Manhattan Youth program.
The UFT argues that, as the CBA provides for a broad grievance and arbitration procedure, there is a reasonable relationship between the Lab School Grievance and the CBA. The UFT and the BOE entered into a CBA to establish "the terms and conditions of employment for all UFT represented employees employed by the [BOE]." Reply affirmation of Michael Del Piano, ¶ 5. Specifically, the violations claimed are related to the salary, benefit, retention and other aspects of UFT members' employment.
However, the court does not "agree that a reasonable relationship' exists between the parties' dispute and either of these provisions, or any other provision of the CBA [internal citation omitted]." Matter of Village of Johnson City (Johnson City Firefighters Assn., Local 921 IAFF), 75 AD3d 817, 819 (3d Dept 2010). While Article 15 clearly sets forth the salary and benefits of per session teachers who are employed in a BOE per session activity, even listing each activity, there is no contractual language regarding the non-BOE after-school activities at issue. The parties did not contemplate, in the CBA, the sub-contracting of these after-school activities, the resulting effect on per session UFT employees or the employment in after-school activities by non-UFT personnel.
"[A]rbitration should be stayed in cases where the parties' arbitration agreement does not unambiguously extend to the particular dispute." Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311, 314 (1980). As the violations claimed by the UFT are not grievances as defined by the CBA, the Lab School Grievance is not subject to arbitration. See e.g. Matter of Village of Johnson City (Johnson City Firefighters Assn., Local 921 IAFF), 75 AD3d at 819 (Court found that the matter was not arbitrable, despite a broad arbitration clause, as "[t]he CBA does not refer, explicitly or implicitly, to the elimination of vacant positions; thus, resolution of the parties' dispute does not involve interpreting or applying any of its provisions, and no breach of the CBA has been effectively alleged"); see also New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, 283 (2010) ("despite the breadth of the arbitration clause in the CBA, it cannot be construed to extend to arbitration of grievances which, as a matter of law, do not effectively allege any breach of the collective bargaining agreement [internal quotation marks and citation omitted]").
As in Matter of Newfield Cent. School Dist. (Newfield Cent. School Teachers Assn.) (258 AD2d 845 [3d Dept 1999]), the Court held that the school district was entitled to a stay of arbitration where respondent alleged a violation of the CBA by subcontracting with BOCES to staff various positions. Although the arbitration clause was broad, the Court found that the CBA "at issue here is totally silent on the issue of petitioner's participation in BOCES programs or authority to subcontract in general." Id. at 847. The Court distinguished the CBA at issue with a CBA that contained a provision prohibiting subcontracting. It also distinguished the grievance at issue with one that included violations of "not only [the] recognition clause but also teacher protection and reciprocal rights provisions of the collective bargaining agreement." Id.
The UFT claims that Matter of Newfield Cent. School Dist. is factually distinguishable, as the "Lab School Grievance is the exact type of claim that the Court in Newfield distinguished from the dispute in that matter." UFT's memo of law at 12. However, the UFT's claims are unpersuasive, as Article 15 is silent on whether the after-school activities at issue must be exclusively assigned to UFT members.
Moreover, referencing per session employees in other aspects in the CBA does not create a reasonable relationship between the parties' present dispute and the CBA. For example, in Matter of City of Binghamton (Binghamton Firefighters, Local 729, AFL-CIO) (20 AD3d 859, 859 [3d Dept 2005]), when petitioner reduced the staffing levels of the firefighters, the Union filed a grievance and sought arbitration. The Court stayed the arbitration, as there was no express agreement to arbitrate disputes over staff size. The Court held that, although the "CBA includes a reference to manpower standards' in the overtime pay provision of article 3 (C) (1), we find nothing that even implicitly requires petitioner to maintain any specific staffing level or describes how staffing levels are to be determined." Id. at 860.
The UFT further argues that, even if Article 15 does not cover the Lab School Grievance, Article 20 could be interpreted to cover the grievance. According to the UFT, Article 20, "provides a past practice clause." Del Piano reply aff, ¶ 52.
"[A] court may decide whether the provisions of a collective bargaining agreement are applicable to a grievant asserting a claim thereunder." Matter of Board of Educ. of the Rondout Val. Cent. Sch. Dist. (Rondout Val. Fedn. of Teachers), 101 AD3d 1446, 1448 (3d Dept 2012). This court has determined that there is no contractual provision that is reasonably related to the UFT's claim. As past practice, "is merely an interpretive tool and cannot be used to create a contractual right independent of some express source in the underlying agreement," it is irrelevant in this instance. Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, 333 (1998).
The UFT claims that the BOE is not entitled to a stay of arbitration because the BOE waived its right to a stay by participating in the arbitration. A party applying to stay an arbitration "on the ground of no agreement to arbitrate can raise such objection only when it has not participated in the arbitration [internal quotation marks and citations omitted]." Stone v Noble Constr. Mgt., Inc., 116 AD3d at 839. Here, the record establishes that the BOE did not "participate[] in the arbitration." Id.
The BOE, upon receiving the Lab School Grievance, only provided clerical information to the UFT, such as possible dates for an arbitration. The BOE did not select an arbitrator, as, pursuant to the CBA, the arbitrators have been pre-selected for the entire year. In any event, after the BOE was apprised of the substance of the grievance, it advised the UFT that the dispute was not arbitrable and filed the instant petition. Its actions do not indicate any active participation with the arbitration process. See e.g. Cybex Intl. v Fuqua Enters., 246 AD2d 316, 317 (1st Dept 1998) ("petitioner did not waive its right to seek a stay of arbitration . . . its participation in arbitral discovery and in the selection of an arbitrator were done before it had received detailed specification of respondent's claims, and that once it did, it made timely attempts . . . to stay the arbitration").
Accordingly, the BOE's petition to stay the arbitration of the Lab School Grievance is granted and the UFT's motion to compel arbitration is denied.
As a result of the court's determination, the parties' remaining contentions, regarding the Taylor Law and PERB, need not be addressed.
CONCLUSION, ORDER AND JUDGMENT
Accordingly, it is hereby
ADJUDGED that the petition of the Board of Education of the City School District of the City of New York, and Carmen Fariña, as Chancellor of the City School District of the City of New York to stay the subject arbitration is granted; and it is further
ORDERED that the motion of the United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO to compel the subject arbitration is denied; and it is further
ORDERED that petitioner shall serve a copy of this order with notice of entry upon all parties within 20 days of entry. Dated: May 24, 2016 ENTER: _______________________ J.S.C.