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Decision No. 13,799

Appeal of MARCIA M. TOS from action of the Board of Education of the City School District of the City of Lackawanna regarding abolition of a full-time position.

Decision No. 13,799

(July 28, 1997)

Joseph V. Deren, Jr., Esq., attorney for respondent

MILLS, Commissioner.--Petitioner has been employed in the position of District Printer since 1987. She is a member of the Civil Service Employees Association (CSEA) and is employed pursuant to a collective bargaining agreement covering the period July 1, 1991, to June 30, 1995. She challenges a resolution of the Board of Education of the City School District of the City of Lackawanna ("respondent"), which reduced her position from a full-time, twelve-month position to a ten-month position. The appeal must be dismissed.

By letter dated July 16, 1996, the superintendent of schools advised petitioner: "The 12-month District Printer position which you currently hold will terminate August 12, 1996. Please be further notified that the 10-month District Printer position will begin September 1, 1996 through June 30, 1997." Petitioner received the July 16 letter on July 22. Thereafter, the district conducted a "determination hearing" on August 5, 1996, for the purpose of determining petitioner's rights. The record before me does not clearly indicate the results of that hearing. Petitioner commenced this appeal on August 21, 1996.

On September 3, 1996, Mark Jurenovich, a Labor Relations Specialist with CSEA, wrote to the superintendent of schools and attached a copy of a Notice of Claim lodged with the Public Employment Relations Board (PERB) on behalf of petitioner. The cover letter from Mr. Jurenovich stated: "The Notice of Claim involves the District's unilateral action of reducing the incumbent District Printer from a twelve (12) month position to a ten (10) month position, and since her reduction, the District's decision to assign her duties to District employees outside the bargaining unit." The Notice of Claim also indicates that it challenges the refusal to negotiate in good faith with the charging party (CSEA), in violation of Civil Service Law '209-a(1)(d).

The record indicates a prior claim filed with PERB in 1994, when respondent purported to abolish petitioner's position and replace it with a fifty percent District Printer position. The 1994 proceeding was terminated by a stipulation dated November 1, 1994.

Petitioner challenges the legality of the July 11, 1996, resolution abolishing her full-time position and replacing it with a ten-month position, and asks that I direct respondent to comply in all respects with the Civil Service Law. Petitioner further claims that respondent has acted in violation of Civil Service Law '209-a(1)(e), and that respondent has breached the prior stipulation of November 1, 1994, which provided:

In consideration of the attached withdrawal of the above-referenced matter, the Lackawanna City School District, by its representative Frank L. Bybell, stipulates and agrees that it shall cease and desist from contracting out printing work and affirms that Marcia Tos has been recalled to the position and title of printer and further agrees that due to any existing or future printing backlog Mrs. Tos may be directed to work overtime at the sole discretion of her supervisor.

Respondent generally denies any wrongdoing, and claims that the change of petitioner's position was made for reasons of "budget constraints" and reduced need of her services because of "technological advances." Respondent claims to have acted consistently with the collective bargaining agreement, and under its authority pursuant to Education Law '2503.

The appeal must be dismissed. It is quite clear from the record before me that the claim presented to PERB only a few days after the commencement of this appeal covers the exact same claims made herein. It is equally clear that, to the extent this appeal claims a violation of the November 1, 1994, stipulation terminating the prior PERB proceeding, it is beyond my jurisdiction pursuant to Education Law '310.

It is well established that a school employee who elects to submit an issue for resolution through another grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter unless the employee can show that his/her union breached its duty of fair representation (Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501, 522 NYS2d 831). This principle has been consistently applied in numerous appeals to the Commissioner (Appeal of Cerilli, 33 Ed Dept Rep 385; Appeals of Gross and Forsyth, 33 id. 222; Appeal of McCall, 32 id. 367, reopening denied, 32 id. 565; Appeal of Garod, 31 id. 526; Appeal of Kassenbrock, 31 id. 324; Appeal of Hillow, 31 id. 78). The claims raised in this appeal have been separately submitted to the Public Employees Relations Board, and petitioner has failed to demonstrate that the Civil Service Employees Association has in any way breached its duty of fair representation. Accordingly, the claims presented in this appeal must be dismissed.

In most cases where the Commissioner has dismissed an appeal because of another pending action or proceeding, the other action or proceeding was begun prior to the commencement of the appeal. In this case, although the appeal was commenced a few days prior to the PERB proceeding, dismissal is appropriate because of petitioner's claims with respect to the 1994 stipulation in the prior PERB proceeding, which I have no authority to enforce. As stated in Appeal of Stuyvesant High School Parents Association, et al., (35 Ed Dept Rep 87): "I find that it would not be in the best interests of the orderly administration of justice to have two tribunals making determinations based on the same factual situation . . ." Given the nature of petitioner's claims, PERB is a better forum for their proper resolution (see, e.g., Civil Service Law ''209-a, 205).