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Decision No. 15,493

Appeal of the EAST MEADOW TEACHERS ASSOCIATION from action of the Board of Education of the East Meadow Union Free School District and Dr. Robert Dillon, Superintendent, regarding union activities.

Decision No. 15,493

(December 8, 2006)

James R. Sandner, Esq., attorney for petitioner, Pamela Patton Fynes, Esq., of counsel

Grotta, Glassman & Hoffman, P.C., attorneys for respondents, Brian J. Turoff, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the action of the Board of Education of the East Meadow Union Free School District (the “board”) and its superintendent (collectively “respondents”) in recording “U” (for union business) on the attendance records of petitioner’s delegates to the annual convention of the New York State Teachers’ Retirement System.  The appeal must be dismissed.

Petitioner is the collective bargaining representative for the teachers employed by the board.  On or about November 5, 2004, petitioner notified respondents that it would be sending two teachers as delegates to the New York State Teachers’ Retirement System’s annual convention on November 15, 2004.  The convention is held each November pursuant to Education Law §505, which also provides for the election of teachers as convention delegates. 

According to the parties’ collective bargaining agreement, petitioner was entitled to use up to nine days (“union days”) during the 2004-2005 school year for its representatives’ participation in union business.  Petitioner claims that on or about November 12, 2004, respondents notified petitioner that a union day would be charged for the delegates’ attendance at the convention.  By letter dated November 12, 2004, petitioner objected to this determination.

The delegates attended the convention on November 15, 2004 and requested copies of their attendance records the following day.  On both delegates’ records, their absence was recorded with a “U.”

Petitioner asserts that the use of a “U” on the delegates’ attendance records is evidence that respondents considered the convention union business and charged it against petitioner’s union days.  Petitioner argues that the convention does not constitute union business because its annual occurrence is required by Education Law §505 and delegates need not be union members to attend.  Petitioner seeks expungement of the “U” on the delegates’ attendance records.

Respondent maintains that the delegates’ absences were recorded with a “U” pursuant to the district’s internal record-keeping practices and that there is no evidence that any time was charged against petitioner in connection with the November 15, 2004 convention.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  On the record before me, petitioner has failed to demonstrate a clear legal right to the relief requested. Petitioner has not shown that respondents were legally obligated to take, or refrain from taking, any specific action with respect to the designation of the delegates’ absences.  Respondents maintain that the convention day was designated as “U” pursuant to the district’s own internal recordkeeping procedures.  Petitioner introduced no evidence to the contrary.

In addition, there is no evidence that petitioner suffered any actual harm as a result of respondents’ actions.  Petitioner has introduced no factual evidence to support its allegation that respondents actually charged any time against petitioner’s nine-day annual allotment for union business.  Further, petitioner does not allege that it was barred from using any union days during the remainder of the 2004-2005 school year because it had exhausted its nine-day allotment as a result of the November 15, 2004 convention.  Because petitioner has not met its burden of demonstrating a clear legal right to the relief requested, the appeal must be dismissed.