Decision No. 13,031

(October 28, 1993)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, R. Townsend Davis, Jr., Esq., of counsel

SHELDON, Acting Commissioner.--Petitioners appeal respondent's hiring practices at a "hiring hall" held on September 4, 1991 and related actions taken subsequent thereto. The appeals must be dismissed.

These appeals are decided together because there are only minor differences of fact, while controlling issues of law are identical. Petitioners are licensed as regular teachers of attendance. On or about August 20, 1991, respondent's Division of Human Resources, Office of Pedagogical Personnel, sent a notice to petitioners and others that a teacher placement center or "hiring hall" would be held on September 4, 1991 to fill vacancies in their license area of attendance teacher.

Both petitioners were interested in high school attendance teacher positions, but only within the Borough of Queens. According to petitioners, they were told by an administrator of the Division of Human Resources at the beginning of the hiring hall that no vacancies existed in Queens. Petitioner Forsyth was instead offered a vacant high school position in the Bronx, which he declined. Petitioner Gross was not offered a position, but instead executed a letter dated September 4, 1991, declaring himself "unavailable for an assignment or appointment as an attendance teacher" because of his full-time employment in another capacity at Beach Channel High School, Queens.

According to respondent, there were two vacancies available for high school attendance teachers in Queens on September 4, 1991. Respondent claims that both positions were filled on September 4, 1991 at the hiring hall. Respondent further claims that both petitioners were interviewed for one of those positions, but neither was offered the position.

Thereafter, it appears that the person selected for the Queens vacancy for which petitioners allegedly interviewed declined the position. It further appears that, according to respondent, there were no regularly licensed attendance teachers available for appointment for the balance of the 1991-1992 school year because of declinations. As a result, the vacant Queens position, a split assignment at John Bowne and Forest Hills High Schools, was filled on or about December 3, 1991 by a preparatory provisional employee. As defined in the contract between respondent and the Attendance Teachers Chapter of the United Federation of Teachers, a preparatory provisional employee is "a person who has not yet completed all the requirements for New York State provisional certification, but who holds a New York State temporary license."

Petitioners object to both the conduct of respondent's representatives at the hiring hall and to the later hiring of a person who did not hold a regular license as an attendance teacher. Petitioners deny that they were ever interviewed for any position on September 4, 1991 and state under oath that they were told that day that there were no vacancies in the Queens high schools. Petitioners claim that one of the two persons allegedly hired on September 4, 1991 was in fact hired prior to that date, and the other was hired the following day. They further claim that the vacant position at John Bowne and Forest Hills High Schools was concealed from all applicants at the hiring hall and later given illegally to a person who had been a clerk in the Office of the Superintendent for Queens prior to her employment as an attendance teacher.

Respondent maintains that both petitioners were interviewed for one of the jobs allegedly filled on September 4, 1991, but neither was selected. Respondent further claims that petitioner Gross made himself ineligible for the balance of the 1991-1992 school year by his letter dated September 4, 1991, and petitioner Forsyth likewise took himself out of consideration for the 1991-1992 school year by declining to accept an attendance teacher position in the Bronx. Among other affirmative defenses, respondent raises timeliness and claims that I lack jurisdiction because petitioners have failed to exhaust their administrative remedies.

Although the record is not clear as to the exact dates, it appears that early in 1992 petitioners initiated a contractual grievance proceeding pursuant to two collective bargaining agreements between the United Federation of Teachers and respondent, i.e., the contract covering teachers in general and a separate contract covering attendance teachers. On May 26, 1992, their grievance was heard by Lawrence H. Block, representing the superintendent for Queens. According to the decision rendered, the grievance aired at that hearing included exactly the same claims made in this appeal. The grievance was denied because the grievants failed to establish that their contractual rights had been violated.

Shortly after the resolution of that grievance, both petitioners filed a second grievance with respondent's Division of Human Resources, which was heard on June 18, 1992. It is clear from petitioner Gross' May 31, 1992 letter that this grievance was brought pursuant to both the regular teachers' contract and the attendance teachers' contract. The determination in that matter, dated June 26, 1992, indicates that the hearing officer considered claims pursuant to both contracts and denied the grievance. While it appears that petitioners have attempted to bring a further Step III grievance, their union has elected not to go forward with that appeal.

I am constrained to dismiss these appeals pursuant to the holding in Board of Education, Commack UFSD v. Ambach (70 NY2d 501). In that case, a tenured teacher brought a grievance proceeding pursuant to a collective bargaining agreement through the first three stages of the process, losing at all three levels. Having failed to obtain relief within the grievance process, he attempted to bring an appeal to the Commissioner of Education. In a unanimous decision, the Court of Appeals ruled that when an employee has first prosecuted a claim pursuant to the grievance process, the same matter may not then be brought before the Commissioner. As stated by the Court: "While the Commissioner viewed Margolin's tireless pursuit of his contract remedies as entitling him to an appeal under Education Law '310, these facts propel us to the opposite conclusion. Exhaustion of contract remedies in this situation is not a gateway to review by the Commissioner of the very same grievance under a collective bargaining agreement but an election of consequence" (70 NY2d at 509). This principle has been consistently applied in numerous appeals to the Commissioner (Appeal of McCall, 32 Ed Dept Rep 367, reopening denied, 32 id. 565; Appeal of Garod, 31 id. 526; Appeal of Kassenbrock, 31 id. 324; Appeal of Hilow, 31 id. 78).

Even if these appeals were not barred by the doctrine of election of remedies, they would be untimely. The last action complained of, i.e., the appointment of an attendance teacher not holding a regular license, occurred on December 3, 1991, and these appeals were not commenced until August 4, 1992, well after the time limit imposed by 8 NYCRR '275.16.

Although I am constrained to dismiss these appeals, I am disturbed by several documents and allegations contained in the record. Petitioner Gross has submitted with his petition a copy of a letter dated November 5, 1991, from Lawrence Block stating that at the September 4, 1991 hiring hall, it was his understanding that the two Queens vacancies were already filled prior to petitioner Gross' arrival. However, respondent's sworn answer alleges that petitioner Gross was in fact interviewed for one of those two vacancies. Respondent's papers make no effort to explain this contradiction. Respondent's answer is verified by an attorney who does not claim to have been present at the hiring hall, whereas petitioner Gross states under oath in his reply that he was never interviewed for any such position.

Petitioners also have presented personnel transaction forms which tend to indicate that one of the persons hired for a Queens vacancy was hired on or prior to July 31, 1991 and not at the hiring hall on September 4, 1991. In addition, respondent has produced a letter dated September 20, 1991 from the other person allegedly hired on September 4. The September 20 letter indicates clearly that the writer was hired for Franklin H. Lane High School in Queens, not for the split assignment at Bowne/Forest Hills which was later filled by a preparatory provisional employee. The letter also appears to indicate that the writer was offered the position on September 5, not on September 4, as respondent claims. These discrepancies are difficult to reconcile and I strongly urge respondent to review both the record in this matter and the manner in which it hires attendance teachers.

THE APPEAL IS DISMISSED.

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