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Decision No. 12,632

Appeal of KAREN QUINN, IRENE MITCHELL, IRMA RUGAR, VIRGINIA KING, CONSTANCE BREWER, RICHARD J. REEVE, MATTHEW SALVIA, HELENE SELLERBERG, JOHN KEMNITZER, JEAN OSOFSKY, MICHAEL KOHUT, ROBERT DEMATTO, JUNE SCHEVON, JEAN COOK and JOAN COPPINGER from action of the Board of Education of the Pine Plains Central School District relating to teacher transfer credit.

Decision No. 12,632

(January 13, 1992)

Schoolhouse Professional Offices, attorneys for petitioners, Mary M. Roach, Esq., of counsel

Shaw and Silveira, Esqs., attorneys for respondent, David Shaw, Esq., of counsel

SOBOL, Commissioner.--Petitioners, full-time teachers in respondent's district, seek review of respondent's action adopting, as part of a collective bargaining agreement, a methodology that places them on a salary schedule resulting in revocation of their transfer credits. Since the claims of each petitioner arise from the same agreement, the appeals are consolidated for decision. Certain of the appeals must be sustained to the extent indicated below.

Each petitioner taught previously in another school district and claims that respondent granted transfer credits at the time each accepted employment in respondent's district. Seven of the petitioners were hired prior to the repeal of '3102(6) of the Education Law which provided in relevant part:

The school authorities may grant transfer credit to a teacher in their discretion, provided, however, that such authorities shall not thereafter have the power to revoke any such grant heretofore or hereafter made to a teacher, and provided, further, that any year of transfer credit so granted shall be counted as a year of service in the district.

The remaining petitioners were hired after 1971 when '3102(6) of the Education Law was repealed.

It is undisputed that the 1979-82 collective bargaining agreement between petitioners' bargaining unit, the Pines Plains Education Association (PPEA), and respondent specifically provided that "[p]lacement, for salary purposes, meant base pay including any credits a teacher was entitled to on the salary schedule under any previous agreement." In addition, the 1979-82 contract provided that "the teacher would be compensated for those qualifications and experience not included in his initial contract with the district." The 1982 agreement was rolled over to 1983. From 1983 to 1986, the collective bargaining agreement provided for placement on a schedule

"at a step commensurate with ... [a teacher's] current salary ... [but] not necessarily at a number salary step which corresponded at their actual number of years (of) experience."

Notwithstanding the fact that the 1983-86 agreement did not place a teacher on a salary schedule corresponding to the number of years of service, petitioners were awarded a salary that recognized the transfer credits previously granted for their service outside the district. Between 1986 and 1989, salary steps remained frozen. On July 1, 1989, respondent and the PPEA reached a new agreement that placed petitioners on a salary schedule that did not account for their years outside the district. According to petitioners, it was not until September 26, 1989, at a meeting with PPEA representatives to ratify the 1989-92 collective bargaining agreement, that they first became aware that their collective bargaining unit and respondent intended to wipe out all service rendered outside respondent school district for purposes of determining placement on the salary scale.

Petitioners request that I order respondent to recognize fully the transfer credits granted to them when they began their employment. Petitioners argue that their collective bargaining agreement for the years July 1, 1989 through June 30, 1992 wrongfully deprived them of their transfer credits. They also contend that respondent's action revoking transfer credits previously granted violates the rights of teachers hired prior to the repeal of '3102(6) of the Education Law. For teachers hired after the repeal of '3102(6), petitioners argue that respondent's actions were arbitrary and capricious and that respondent should be equitably estopped from rescinding their transfer credits. In addition, petitioners argue that for those teachers hired after the repeal of the statute, sound public policy and fairness dictate that their transfer credits be honored.

Respondent argues that because petitioners relied in the past on the PPEA to negotiate raises and their placement on the salary scale, they waived their right to object to the 1989-92 agreement. For teachers hired after the repeal of '3102(6) of the Education Law, respondent also argues that absent a claim that the teachers' collective bargaining unit breached its duty of fair representation, they have no cognizable cause of action to challenge the salary determinations agreed to by their collective bargaining unit.

Respondent raises as a threshold issue the timeliness of the appeals. Respondent argues that the petitions are untimely because they were not commenced within thirty days from the time of the 1985-86 salary schedule negotiations in 1983 when petitioners' transfer credits were initially discounted. Petitioners argue that the statute of limitations runs from the time they first became aware that their transfer credits were eliminated on October 11, 1989.

As a general rule, an appeal must be filed within 30 days of the decision or act complained of (8 NYCRR '275.16). In any case, the time for filing an appeal runs from the effective date of the action and not necessarily from the date the action was taken (See Appeal of Bovi, 29 Ed Dept Rep 352; Appeal of LaVelle, 28 Ed Dept Rep 189). Although the collective bargaining agreement negotiated in 1983 did not place petitioners on a salary schedule corresponding to the number of years in service, it was not until July 1, 1989, that the parties reached a new agreement that actually affected petitioners' salaries. That agreement was ratified on October 11, 1989 and these appeals were commenced less than thirty days later -- on November 14, 1989. Because petitioners were not aggrieved until they were placed on a schedule that affected their salaries, the appeals are timely. In addition, for those petitioners granted transfer credits prior to the repeal of '3102(6), barring a finding that they knowingly and voluntarily waived their statutory right to full transfer credits, their improper placement on the salary step ". . . is in the nature of a continuing wrong ... and the time in which to commence an appeal begins to run anew upon the issuance of each paycheck" (Matter of McClay, 22 Ed Dept Rep 560, 562; aff'dMatter of Greenwich v. Ambach, 107 AD2d 910, (1985)).

With respect to the merits, respondent asserts that because the language of the 1983 collective bargaining agreement is unequivocal in its intent to disregard petitioners' transfer credits, those petitioners' granted transfer credits prior to the repeal of '3102(6) of the Education Law must be found to have intelligently and knowingly waived their rights. To support its contention, respondent cites a provision of the agreement providing that:

"in the first year of the schedule, teachers will be placed on the schedule at a step commensurate with their current salary and not necessarily at their actual number of years experience"

Petitioners argue that they could not have waived their right to transfer credits when it was not until ratification of the collective bargaining agreement on October 11, 1989 that they knew their transfer credits had been revoked.

As a general rule, teachers may waive their statutory rights to transfer credits, if such waiver is knowing and voluntary (Matter of Arfin, et al, 21 Ed Dept Rep 386, aff'd 111 AD2d 486 [1985]; see, Abramovich v. Bd. of Ed., Brookhaven Smithtown, 46 NY2d 45, [1979]; Feinerman v. BOCES Nassau County, 48 NY2d 491 [1979]). However, absent a finding that teachers hired prior to the repeal of '3102(6) of the Education Law knowingly and intelligently waived their right to transfer credits, the decision of the New York State Court of Appeals in Matter of UFSD 2, Cheektowaga, et al. v. Nyquist, et al., 38 NY2d 137, 140 379 NYS2d 10, is controlling. In that case, the court held that transfer credits granted to teachers prior to the repeal of '3102(6) of the Education Law must be honored for all salary purposes, including longevity increments, and that such credits may not be revoked. In upholding the teachers' rights afforded by statute, despite the existence of a collective bargaining agreement entered into subsequent to the repeal of '3102(6) of the Education Law, the court held that:

"the provisions of the collective bargaining agreement between the parties, however explicit or clear their content may be, cannot operate to supersede the imperative provisions of the Education Law, as specifically in this instance, the command of subdivision 6 of section 3102 that transfer credits granted 'shall be counted as a year of service in the district' for all compensation purposes." id at 143.

Whether petitioners hired prior to the repeal of '3102(6) ("pre-repeal petitioners") can be found to have knowingly and intelligently waived their transfer credits, depends, in part, on when they were first notified that their transfer credits had been revoked. To support the contention that they did not know that their transfer credits were revoked until October 11, 1989, for purposes of placement on the salary scale, petitioners offer an affidavit from a former president of the PPEA and one from a member of a negotiating team. The PPEA negotiator unequivocally states in his affidavit that it was not until the 1989 negotiations that the union's field representative first proposed a salary schedule methodology with no credit for service outside the district. The affidavit offered by the president of the PPEA from 1976 until 1982 avers that at no time prior to the current collective bargaining agreement did the PPEA ever knowingly waive rights of their membership to full recognition of teaching service outside the district.

Although petitioners do not dispute that when salary scales were first adopted in 1983, it was explained that "steps" did not correspond to years of service, they claim that employees were put on a grid in accordance with their then current salary to ensure that in future negotiations a salary schedule corresponding to years of service and degree credits could be negotiated. Petitioners' supplemental papers are particularly instructive in deciding whether they could be found to have knowingly waived their rights to transfer credits either in 1983 or thereafter. In particular, I find petitioners' evidence that teachers previously awarded transfer credits were placed on higher steps and received a higher salary than teachers who taught in the district for either the same number of years or even a greater number of years than petitioners' class despite the 1983 conversion to salary steps, compelling. In the absence of an unequivocal waiver of statutory rights to transfer credits, there is no basis to imply or presume that such a waiver was made, except in cases where the teachers affected are given clear notice of either in their collective bargaining agreement or elsewhere that informs them that their transfer credits otherwise guaranteed have been revoked (Matter of Arfin, et al, 21 Ed Dept Rep 386, aff'd 111 AD2d 486 [1985]; see, Abramovich v. Bd. of Ed., Brookhaven Smithtown, 46 NY2d 45 [1979]; Feinerman v. BOCES Nassau County, 48 NY2d 491 [1979]). Based on the evidence before me, I am unable to find that respondent adequately notified petitioners that their transfer credits had been revoked in 1983. Nor is there any evidence that the pre-repeal petitioners' statutory rights were knowingly and intelligently waived. Accordingly, respondent's claim that those petitioners did, in fact, provide such a waiver is rejected.

Because I find the language of the 1983 agreement regarding the revocation of transfer credits, at best, ambiguous and petitioners' uncontested affidavits stating that they were never made aware until October 11, 1989, that the collective bargaining agreement denied them transfer credits previously granted, I am unable to find that the pre-repeal petitioners knowingly waived otherwise irrevocable rights to their transfer credits.

For petitioners granted transfer credits after the repeal of '3102(6) of the Education Law (post-repeal petitioners), the sole issue is whether they are bound by the 1989 collective bargaining agreement revoking their transfer credits.

As the Court of Appeals recognized in Commack v. Ambach, 70 NY2d 501, 508 (1987):

only when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer . . . ." (cites omitted)

Petitioners do not claim that the union failed in its duty of fair representation. I am constrained to deny the relief requested to petitioners hired after the repeal of '3102 of the Education Law. These post-repeal petitioners argue that giving school authorities the discretion to allow the revocation of transfer credits previously granted will result in stagnation that adversely impacts the State's educational system. Although the public policy arguments have force, I find the Legislature's repeal of the law that prohibited school authorities from revoking transfer credits determinative. Given the legislative intent to permit such revocations, signaled by the repeal of '3102(6) of the Education Law in 1971, the merits of the post-repeal petitioners' public policy arguments are more properly addressed by the Legislature.

THE APPEAL IS SUSTAINED to the extent indicated.

IT IS ORDERED that respondent pay to petitioners Brewer, Reeve, Schevon, DeMatto, Kohut, Kemnitzer and Salvia, longevity increments computed on the basis of time allowed as transfer credits when they were originally employed by respondent, as well as time served in the district and compensate them retroactive to July 1, 1989, at a commensurate salary.

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