IN RE: Lois ROMA et al. (1998)

Appeal from a judgment of the Supreme Court (Monserrate, J.), entered July 9, 1996 in Broome County, which granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Board of Education of the Susquehanna Valley Central School District denying a grievance filed by petitioners.

Petitioners are employed by the Susquehanna Valley Central School District as full-time matrons.   A collective bargaining agreement between the School District and the Civil Service Employees Association Local No. 1000, on behalf of the District's employees, was executed on December 30, 1993 and governed the rights and responsibilities of the parties for the period July 1, 1993 through June 30, 1996.   Among the provisions of the agreement at issue here are those which (1) reserve to the District the right to “hire, suspend, discharge, discipline, promote, demote, transfer and abolish positions” (art. 5, § I);  (2) provide that matrons shall normally work an eight-hour day/40-hour week ¹ (art 15);  (3) commit the District to negotiate collectively with CSEA as to salaries and terms and conditions of employment (art. 5, § II);  (4) provide that no change in District policy concerning employees' working conditions may be implemented without prior negotiation with and agreement by CSEA (art. 11);  and (5) set forth a four-step grievance procedure to be followed with respect to any claimed violation of the agreement (art. 27).

Petitioners were notified by the District's Superintendent that effective July l, 1995, their positions would be reduced from an eight-hour day/40-hour week to a six-hour day/30-hour week due to budgetary considerations.   Petitioners, through CSEA, filed a grievance in accordance with the procedure set forth in article 27 of the agreement, contending that pursuant to the agreement the matrons were guaranteed a 40-hour week, and that any change in the terms and conditions of the their employment would have to be the subject of collective bargaining.²  The grievance proceeded through the four steps and was denied following a hearing on November 18, 1995.   Petitioners thereupon commenced this CPLR article 78 proceeding seeking annulment of the Board's determination.   Supreme Court granted the petition, determining that the Board's action was arbitrary and capricious, and ordered petitioners restored to their former 40-hour week “unless/until the conditions of their said employment are altered in accordance with the provisions of the collective bargaining agreement”.

 It cannot be disputed that the clear intent of the parties, as evidenced by explicit provisions set forth in the agreement, was that matters affecting the “terms and conditions” of employment be the subject of collective bargaining, and further that any changes in policy relative thereto would not occur without prior negotiation and agreement between the parties.   The grievance filed by petitioners alleged that respondents violated the collective bargaining agreement by failing to collectively bargain matters affecting the terms and conditions of employment and the change in policy resulting in workhour reduction.   As such, this grievance alleges an unfair labor practice of which the Public Employment Relations Board has exclusive, nondelegable jurisdiction (see, Civil Service Law § 205[5][d];  Jefferson County Bd. of Supervisors v. New York State Pub. Empl. Relations Bd., 36 N.Y.2d 534, 369 N.Y.S.2d 662, 330 N.E.2d 621;  Matter of Civil Servs. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v. City of Troy, 223 A.D.2d 825, 636 N.Y.S.2d 455;  Matter of Palumbo v. Board of Educ. of City of N.Y., 60 A.D.2d 858, 400 N.Y.S.2d 857).   Accordingly, petitioners' claim should have been first submitted to the Public Employment Relations Board as the “court of original jurisdiction in an unlawful employer practice charge” (Matter of Odessa-Montour Cent. School Dist. v. New York State Pub. Empl. Relations Bd., 228 A.D.2d 892, 894, 645 N.Y.S.2d 100).   We point out that the sole authority cited by Supreme Court in support of its judicial review of an interpretation of a collective bargaining agreement, Matter of Stuerecke v. Police Commn. of Town of Ramapo, (133 A.D.2d 762, 520 N.Y.S.2d 52), did not involve a claim of an unfair labor practice.

ORDERED that the judgment is reversed, on the law, without costs, and petition dismissed, with leave to petitioners to seek review of the determination of respondent Board of Education of the Susquehanna Valley Central School District from the Public Employment Relations Board.

We respectfully dissent.   While we have no quarrel with the proposition that allegations of an unfair labor practice must first be presented to the Public Employment Relations Board, we do not perceive that to be the crux of petitioners' complaint.   In our view, petitioners are alleging that respondents breached the terms of the collective bargaining agreement by reducing their work week to six hours a day, 30 hours per week, whereas the agreement guarantees them eight hours a day, 40 hours per week.   Further, we agree with Supreme Court's determination that the School District's interpretation of the agreement was arbitrary and capricious in that it was contrary to the plain language of article 15, § I(A) of said agreement.   Accordingly, we would affirm Supreme Court's judgment.

FOOTNOTES

1.   Specifically excepted from this general rule was one matron (not among petitioners) whose work day would be six hours for a 30-hour week.

2.   The record on appeal does not contain the actual grievance filed by the matrons.   Its allegations are gleaned from petitioners' April 5, 1996 verified petition and respondent Sandra Ruffo's answering affidavit sworn to on June 7, 1996.

MIKOLL, Justice Presiding.

MERCURE and YESAWICH, JJ., concur.