Board of Education, Commack Union Free School District v. Ambach

OPINION OF THE COURT Mikoll, J. The issue before us is whether an individual employee, asserting a right under a collective bargaining agreement in force at the time of his involuntary teaching assignment, is barred from asserting that right in a separate appeal to the [138] Commissioner of Education pursuant to Education Law § 310 (7). Respondent Joseph B. Margolin is a tenured teacher in the Commack Union Free School District in Suffolk County. He serves in a general secondary tenure area and is certified as a high school social studies teacher with 16 years of experience. Because of the excess of social studies teachers with seniority-protected job rights and a lack of English and mathematics teachers, involuntary assignments were made of social studies teachers, including Margolin, to other than social studies classes. In the 1984-1985 school year, Margolin was assigned outside his certified area to teach a class entitled "Writing and Reading”. He accepted the assignment without objection until he learned in September that another teacher with less seniority was assigned to teach entirely within the social studies curriculum. Margolin lodged a complaint with his union, the Commack Teachers’ Association (CTA), which was the exclusive negotiating representative for the district’s high school teachers. The collective bargaining agreement between petitioner and CTA required that a teacher’s seniority be recognized in making assignments. It also provided for a four-step grievance procedure, the fourth step of which consisted of binding arbitration, a stage that only CTA could initiate. CTA found Margolin’s grievance meritless and refused to pursue it for him. Margolin pursued his grievance independently up the three steps available to him. At the first two levels of the grievance procedure, the grievance was denied on the ground that the reason for assigning a less senior teacher to a totally social studies assignment was justified by other factors including efficient use of staff resources and rotation of assignments on an "equitable and fair basis”; thus, it was concluded, seniority rights had been properly subordinated. At the third stage, the Hearing Officer held that the failure to change Margolin’s assignment in late August, when additional assignments to social studies classes became available, was proper. The Hearing Officer found that the principal adequately considered available course preparation time, prior preparation and prior teaching experience, and that these factors plus factors set out in the collective bargaining agreement* entitled her to subordinate seniority rights. Having exhausted the procedures available to him under [139] the collective bargaining agreement and CTA having declined to pursue binding arbitration, Margolin commenced a proceeding by petition to respondent Commissioner of Education pursuant to Education Law § 310 (7). Petitioner, in its answer to Margolin’s appeal, contended that it should not be entertained because (1) Margolin had failed to show that CTA had breached its duty of fair representation to him, (2) he failed to join CTA as a necessary party, and (3) petitioner’s construction of the collective bargaining agreement was neither irrational, arbitrary or capricious. The Commissioner determined that CTA was not a necessary party to the appeal and granted Margolin’s petition holding that petitioner had failed to present in specific enough detail the factors upon which it based its determination and that petitioner failed to properly consider Margolin’s seniority. Accordingly, petitioner’s decision was reversed as arbitrary and capricious. Special Term affirmed the Commissioner’s determination finding that it was not arbitrary or capricious or in violation of law, and dismissed petitioner’s CPLR article 78 application. Petitioner argues on this appeal that Margolin, an individual employee asserting a right under a collective bargaining agreement in force at the time, is barred from asserting that right in an appeal to the Commissioner absent a clear showing of a breach by CTA of its duty of fair representation, that CTA is a necessary and indispensable party to the appeal and failure to join it is fatal to the proceeding, and, finally, that [140] the Commissioner’s determination is irrational, arbitrary and capricious. Addressing petitioner’s contention ad seriatum, we hold that Margolin’s appeal to the Commissioner is an independent remedy available to him pursuant to Education Law § 310. He was thus not required to make a preliminary showing that CTA breached its duty of fair representation to him to pursue it. Margolin’s petition before the Commissioner alleged that he had been aggrieved by petitioner’s official acts. The Commissioner has been granted broad powers as chief administrative officer of the State Education Department (see, NY Const, art V, § 4; art XI, §2; Education Law §§207, 307; see also, Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111, 116; Matter of Board of Educ. v Ambach, 90 AD2d 227, 231, affd 60 NY2d 758). Inherent in those powers is the right to examine and decide appeals to him from aggrieved persons who seek relief relevant to an education matter where their rights are implicated by official acts of school authorities. Such an interpretation is consistent with the Commissioner’s broad mandate to control and manage the State’s educational affairs and with the purpose of Education Law § 310. We hold that the instant collective bargaining agreement did not foreclose Margolin from appealing to the Commissioner. We find petitioner’s cited authorities inapplicable to the instant situation as we read them more narrowly than proposed by petitioner. A collective bargaining agreement may foreclose a union member’s individual right to sue his employer for damages in a judicial tribunal (see, Goosley v Binghamton City School Dist. Bd. of Educ., 101 AD2d 942, 943). In other instances, where a negotiated union contract offers an alternative method of resolving disputes via binding arbitration and a member elects to so proceed, he waives rights accorded to him by statutory law (see, Dye v New York City Tr. Auth., 88 AD2d 899, affd 57 NY2d 917). Here, Margolin did not proceed to binding arbitration. The right to do so was not available to him. Neither did he elect to waive his statutory rights under Education Law § 310 (7) by pursuit of some other remedy. We conclude, as well, that it was not necessary to join CTA as a party in the administrative proceeding. The Commissioner has no power over CTA and, further, his decision does not relate to any rights of the union. Finally, addressing the validity of the Commissioner’s decision, we note that our review thereof is limited. If the [141] decision has a rational basis, it cannot be overturned (Matter of Shurgin v Ambach, 56 NY2d 700). We note that petitioner attempted to amplify its position at Special Term by the submission of an affidavit of the assistant superintendent, with two attached exhibits, and an affidavit of the school attorney. These had not been before the Commissioner and cannot now be considered as part of the record on appeal (see, Matter of Yanoff v Commissioner of Educ. of State of N Y, 64 AD2d 763). The Commissioner’s finding that the submissions of petitioner were insufficient to establish any basis for assigning Margolin to teach an English course as opposed to the five teachers junior to him in seniority so as to justify a disregard of his seniority rights is supported by the record. Footnotes [*] The collective bargaining agreement provided in part: [139] "18.01 The right and responsibility of administrative personnel to make wise and judicious use of the professional staff is recognized and affirmed. In the exercise of this right, administrative personnel are to use as the prime criterion the welfare of the children placed in the teacher’s charge taken together with efficient staff utilization in professional activity. To this end, the parties agree to the following: "a. The teaching assignment of a teacher shall be entirely within the area of his competency and/or certificate and in no event shall a teacher teach more than one period per day outside his area of certification. "b. In making teaching assignments, the building (or District) administrators shall make provisions for professional growth by encouraging a pattern of rotation of teacher assignments in such a way that no one area or activity becomes the exclusive province of any one individual or class of teachers * * * "k. All other factors being equal, seniority shall prevail with respect to class assignments and duties, class loads and use of portable classrooms. Such seniority rights shall be accorded to tenured teachers only and shall be based only on the total number of years teaching in the District.”