SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ______________________________________________ MICHAEL MULGREW, as President of the UNITED FEDERATION

OF TEACHERS, Local 2, American Federation of Teachers, AFL-CIO, Plaintiffs, -againstMERRICK ACADEMY QUEENS PUBLIC CHARTER SCHOOL and THE BOARD OF TRUSTEES of Merrick Academy Queens Public Charter School, Defendants. _______________________________________________ VERIFIED COMPLAINT Index No.: Date of Filing:

Plaintiff United Federation of Teachers, Local 2, American Federation of Teachers, AFLCIO (UFT), by Michael Mulgrew in his capacity as president of the UFT, and by and through its attorney Richard E. Casagrande (Jennifer A. Hogan, of Counsel), respectfully allege the following for its Verified Complaint against Merrick Academy Queens Public Charter School and the Board of Trustees of Merrick Academy Queens Public Charter School (collectively referred to as Merrick Academy or Defendants): PRELIMINARY STATEMENT 1. The UFT and Merrick Academy are parties to a Memorandum of Agreement (MOA) dated November 10, 2011 pertaining to a bargaining unit of employees represented by the UFT at Merrick Academy. 2. 3. A copy of the MOA is attached hereto as Exhibit A. On or about December 6, 2007, the UFT filed a Representation Petition with the New York State Public Employment Relations Board (PERB).

4.

On March 8, 2008 PERB certified the UFT as the exclusive bargaining representative for employees in the titles of teacher, teacher assistant, cooperative teacher, fine arts coordinator and student mentor at Merrick Academy.

5.

On or about August 27, 2009, the UFT and Merrick Academy began negotiations for the MOA. The negotiations between the UFT and Merrick Academy lasted twenty-seven months.

6.

During the negotiations, Merrick Academy froze the salaries of the UFTs bargaining unit members.

7.

On or about November10, 2011, the UFT and Merrick Academy entered into a written MOA in which they agreed to certain terms and conditions of employment for bargaining unit members for the period from August 18, 2008 to August 19, 2013. See, Exhibit A.

8.

Despite agreeing to salary increases and other terms and conditions of employment as defined in the MOA, Merrick Academy has failed and refused to implement the bargained for salary increases for bargaining unit members of the UFT, and has further failed to comply with other terms and conditions of employment guaranteed to bargaining unit members under the MOA.

9.

The UFT brings this declaratory judgment and breach of contract action against Merrick Academy to enforce certain provisions of the MOA which does not provide for arbitration of all disputes which arise over interpretation of the contract. PARTIES

10.

Plaintiff Michael Mulgrew is a resident of the State and City of New York, and is the President of the UFT. The UFT is an unincorporated association with its principal place of business in the City and County of New York and, pursuant to Article 14 of the Civil

Service Law, commonly known as the Taylor Law, is the recognized bargaining agent for teachers, teacher assistants, cooperating teachers, fine arts coordinators and student mentors employed by Merrick Academy. The UFT brings this Complaint on behalf of all represented employees of Merrick Academy. 11. Defendant Merrick Academy Queens Public Charter School is a public charter school and a public employer within the meaning of the Taylor Law. The principal place of business of Merrick Academy is 201-01 Jamaica Avenue, Queens Village, New York 11428. 12. 13. Merrick Academy received its charter pursuant to Education Law 2852. Defendant Board of Trustees of Merrick Academy is responsible for operating Merrick Academy Queens Public Charter School. Pursuant to Education Law 2853, the board of trustees of a charter school in New York State has final authority for policy and operational decisions at the charter school. VENUE 14. Venue is properly in Queens County pursuant to CPLR 506(b) because Defendants operate in that County. JURISDICTION 15. Pursuant to CPLR 3001 and 3017, this Court has the authority to issue a declaratory judgment. Further, it has the authority to issue a judgment for breach of contract under the common law. STATEMENT OF THE CASE 16. The UFT and Merrick Academy are parties to a MOA, which is a public employment collective bargaining agreement negotiated under the Taylor Law and sets the terms and conditions of employment for members of the bargaining unit represented by the UFT.

17. 18.

The MOA is a valid and enforceable contract between the UFT and Merrick Academy. The bargaining unit members represented by the UFT, are the beneficiaries of the MOA between the UFT and Merrick Academy.

19.

The bargaining unit at Merrick Academy is represented, in part, by the UFT Chapter Leader, who is also a member of the bargaining unit and was elected by the UFT membership at Merrick Academy.

20.

The role of the UFT Chapter Leader is to, among other things, investigate potential breaches of the MOA (Grievances), and process Grievances under the procedure provided for in the MOA.

21. 22.

Article 15 of the MOA is entitled Grievance Procedure. For matters not pertaining to the discipline of UFT represented employees (NonDiscipline Grievances) the grievance procedure in the MOA contains three steps.1

23.

The first step of the grievance procedure allows an employee and the UFT Chapter Leader to present the grievance to the employees Assistant Principal or Program Manager.

24.

If the grievance has not been resolved at Step 1, the second step allows the employee and UFT to present the grievance to the Principal or Academy Instructional Leader.

25.

If the grievance has not been resolved at Step 2, the third and final step of the grievance procedure allows the UFT to present the grievance to the Board of Trustees of Merrick Academy.

26.

The grievance procedure also provides that if a grievance is not answered by Merrick Academy at any step within the time limits set by the MOA, the UFT may proceed to the

It should be noted that the MOA provides for a different grievance procedure for grievances over disciplinary matters.

next step of the grievance procedure. 27. Article 15 of the MOA does not provide for arbitration of Non-Discipline Grievances or any other final and binding dispute resolution process. The Salary Grievance 28. 29. Article 6 of the MOA is entitled Rates of Pay: Existing Employees. Article 6.1.1(i), sets forth the salary schedule for bargaining unit members at Merrick Academy. 30. Article 6.1.2 (i), (ii) and (iii), sets forth a procedure for placing existing employees on the salary schedule based on prior years of experience. 31. Article 6.2.1, also provides for salary increases for bargaining unit members at Merrick Academy during the 2009-2010, 2010-2011, and 2011-2012, 2012-2013 school years. 32. Under Article 6.2.1., teachers are entitled to a four (4%) percent salary increase in 20092010, a three (3%) percent salary increase in 2010-2011, a two and a half (2.5%) percent salary increase in 2011-2012, and a two and a half (2.5%) percent increase in 2012-2013. 33. Under Article 6.2.2., teaching assistants and student mentors are entitled to salary increases of two and a half (2.5%) percent over the prior years salary for each year of the MOA. 34. 35. Article 7 of the MOA is entitled Red Circled Teachers. Article 7 provides the salary rate for certain teachers characterized as Red Circled Teachers. 36. 37. 38. Article 8 of the MOA is entitled Rates of Pay: New Hires. Article 8 sets forth the manner for calculating the salary of a new hire. The full provisions of Article 6, 7, and 8 of the MOA may be found at pages 6-11, of

Exhibit A. 39. Despite these provisions, Merrick Academy has failed to implement any of the bargainedfor salary increases of Articles 6, 7, or 8. 40. On or before December 23, 2011, the UFT requested that bargaining unit members salaries be adjusted to reflect the appropriate salaries for its bargaining unit members as provided for in Articles 6, 7, and 8 of the MOA. 41. Merrick Academy failed to implement the salary schedule or salary increases for bargaining unit members as provided for in Article 6, 7, or 8 of the MOA. 42. On or about December 23, 2011, the UFT filed a grievance (Salary Grievance) alleging that Merrick Academy violated the provisions of Article 6, 7, and 8 by failing to implement raises and retroactive salary adjustments. A copy of the Salary Grievance is attached hereto as Exhibit B. 43. 44. Merrick Academy did not respond to the UFTs Salary Grievance at Step 1. On or about January 25, 2012, the UFT then processed the Salary Grievance to Step 2 of the grievance procedure. A copy of the UFTs request that the Salary Grievance proceed to Step 2 is attached hereto as Exhibit C. 45. 46. Merrick Academy did not respond to the UFTs Salary Grievance at Step 2. On or about February 15, 2012, the UFT processed the Salary Grievance to Step 3 of the grievance procedure. A copy of the UFTs request that the Salary Grievance proceed to Step 3 is attached hereto as Exhibit D. 47. 48. To date, Merrick Academy has not responded to the UFTs Salary Grievance at Step 3. The UFT satisfied all of the procedural requirements stated in the MOA for filing and processing the Salary Grievance.

49.

By failing to implement raises, retroactive salary adjustments and the salary schedule as defined in the MOA, Merrick Academy violated Articles 6, 7, and 8 of the MOA. The Work Hour Grievance

50. 51.

Article 10 of the MOA is entitled Work Schedule. Article 10.1 provides that normal work hours for bargaining unit members will be from 7:30 a.m. to 4:00 p.m. from Monday through Friday.

52.

On or before December 23, 2011, certain bargaining unit members of the UFT were informed by Merrick Academy that they would be required to work until 4:15 p.m. Monday through Friday.

53.

On or about December 23, 2011, the UFT filed a grievance (Work Hour Grievance) alleging that Merrick Academy violated Article 10.1 of the MOA by requiring bargaining unit members to work until 4:15 p.m. Monday through Friday. A copy of the Work Hour Grievance is attached hereto as Exhibit E.

54.

Merrick Academy responded to the Work Hour Grievance at Step 1 by informing the UFT that it would make the necessary adjustments to adhere to the MOA.

55.

Notwithstanding this response at Step 1, Merrick Academy continued to require bargaining unit members to work until 4:15 p.m. after the grievance was presented.

56.

On or about January 25, 2012, the UFT then processed the Work Hours Grievance to Step 2 of the grievance procedure. A copy of the UFTs request that the Work Hour Grievance proceed to Step 2 is attached hereto as Exhibit F.

57.

Merrick Academy did not respond to the UFTs Work Hour Grievance at Step 2 and continued to require employees to work until 4:15 p.m. during the school week.

58.

On or about February 15, 2012, the UFT processed the Work Hour Grievance to Step 3 of the grievance procedure. A copy of the UFTs request that the Work Hour Grievance proceed to Step 3 is attached hereto as Exhibit G.

59.

To date, Merrick Academy has not responded to the UFTs Work Hour Grievance at Step 3.

60.

To date, Merrick Academy continues to require that bargaining unit members work until 4:15 p.m. in violation of Article 10 of the MOA.

61.

The UFT satisfied all of the procedural requirements stated in the MOA for filing and processing the Work Hour Grievance.

62.

By requiring that bargaining unit members work until 4:15 p.m. from Monday through Friday, Merrick Academy violated Article 10.1 of the MOA. The Spring Tuition Reimbursement Grievances

63.

Article 3 of the MOA is entitled Personnel Manuals. Article 3.2 is entitled Specific Amendments.

64.

Article 3.2.5 is entitled Tuition Reimbursement and provides that employees will be reimbursed one hundred (100%) percent for the cost of a course taken by the employee during the summer, spring, or fall semesters, provided the employee receives a Grade of A on the course, fifty (50%) percent reimbursement if the employees receives a Grade of B, and further provided the course is taken is required to obtain or retain a teacher certification.

65.

Jacqueline Veracoechea (Veracoechea) and Tara Mondesir (Mondesir) are both employed as teachers at Merrick Academy.

66.

During the Spring 2011 semester Veracoechea and Mondesir both took three classes required to obtain a teaching certification. Both Veracoechea and Mondesir received Grades of A on each class that they took.

67.

On or before December 14, 2011, Veracoechea and Mondesir requested that Merrick Academy reimburse them for the full cost of the three classes that each took during the Spring 2011 semester. Each class that Veracoechea and Mondesir took cost $1800.00, for a total of $5,400.00 per employee.

68.

Merrick Academy reimbursed Veracoechea and Mondesir in the amount of $500.00 for two classes that Veracoechea and Mondesir took during the Spring 2011 Semester, for a total of $1,000.00 per employee. Merrick Academy denied reimbursement for the third class that Veracochea and Mondesir took during the Spring 2011 semester.

69.

On or about December 14, 2011, Veracoechea and Mondesir together with the UFT filed two grievances (Spring Tuition Reimbursement Grievances) based on Merrick Academys denial of tuition reimbursement for one of the classes that each took during the Spring 2011 Semester, and further because Veracoechea and Mondesir only received partial reimbursement for the cost of the two classes that were approved by Merrick Academy.

70.

Merrick Academy denied Veracoecheas and Mondesirs Spring Tuition Reimbursement Grievances at Step 1.

71.

On or about January 26, 2012, the UFT appealed the Spring Tuition Reimbursement Grievances to Step 2. A copy of the UFTs request that the Spring Tuition Reimbursement Grievances proceed to Step 2 is attached hereto as Exhibit H.

72.

Merrick Academy did not respond to the UFTs Spring Tuition Reimbursement Grievance at Step 2.

73.

On or about February 17, 2012, the UFT processed the Spring Tuition Reimbursement Grievances to Step 3 of the grievance procedure. A copy of the UFTs request that the Spring Tuition Reimbursement Grievances proceed to Step 3 is attached hereto Exhibit I.

74.

To date, Merrick Academy has not responded to the UFTs Spring Tuition Reimbursement Grievances at Step 3.

75.

The UFT satisfied all of the procedural requirements stated in the MOA for filing and processing the Spring Tuition Reimbursement Grievances.

76.

By failing to reimburse Veracoechea and Mondesir tuition payments for all the classes and for the full amount of the classes which Veracoechea and Mondesir took during the Spring 2011 semester, Merrick Academy violated Article 3 of the MOA. The Fall Tuition Reimbursement Grievances

77.

During the Fall 2011 semester Veracoechea and Mondesir each took three classes for the purpose of obtaining a teaching certification. Both Veracoechea and Mondesir received Grades of A on each class that they took.

78.

On or before December 22, 2011, Veracoechea and Mondesir both requested that Merrick Academy reimburse them for the full cost of the three classes that each took during the Fall 2011 semester, for a total of $5,400.00 per employee.

79.

On or about December 22, 2011, Merrick Academy reimbursed Mondesir in the amount of $500.00 per class for two of the three classes that Mondesir took during the Fall 2011 Semester, for a total of $1000.00.

80.

Merrick Academy denied reimbursement to Veracoechea for all of the classes that she took during the Fall 2011 semester.

81.

On or about December 22, 2011, Veracoechea and Mondesir together with the UFT filed two grievances (Fall Tuition Reimbursement Grievances) based on Merrick Academys denial of tuition reimbursement.

82.

On January 30, 2012, Merrick Academy denied Veracoecheas Fall Tuition Reimbursement Grievance on the basis that the course Veracoechea took was not required to obtain or retain teaching certification. A copy of Merrick Academys Step 1 response is attached hereto as Exhibit J.

83.

On January 30, 2012, Merrick Academy denied Mondesirs Fall Tuition Reimbursement Grievance on the basis that Mondesir was only eligible for reimbursement for two courses. A copy of Merrick Academys Step 1 response is attached hereto as Exhibit K.

84.

On or about January 26, 2012, the UFT appealed the Fall Tuition Reimbursement Grievances to Step 2. A copy of the UFTs request that the Fall Tuition Reimbursement Grievances proceed to Step 2 is attached hereto as Exhibit L.

85.

Merrick Academy did not respond to the UFTs Fall Tuition Reimbursement Grievances at Step 2.

86.

On or about February 17, 2012, the UFT processed the Fall Tuition Reimbursement Grievances to Step 3 of the grievance procedure. A copy of the UFTs request that the Fall Tuition Reimbursement Grievances proceed to Step 3 is attached hereto as Exhibit M.

87.

To date, Merrick Academy has not responded to the UFTs Fall Tuition Reimbursement Grievances at Step 3.

88.

The UFT satisfied all of the procedural requirements stated in the MOA for filing and processing the Fall Tuition Reimbursement Grievances.

89.

By failing to reimburse Veracoechea and Mondesir the full amount for tuition payments from classes which they took during the Fall 2011 semester, Merrick Academy violated Article 3 of the MOA. AS AND FOR A FIRST CAUSE OF ACTION

90.

Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 89 as is fully set forth herein.

91.

The Court should issue a declaratory judgment declaring that the UFTs bargaining members are entitled to salaries and salary increases as provided for in Articles 6, 7, and 8 of the MOA.

92.

The Court should issue a declaratory judgment declaring that the hours of work for the UFTs bargaining unit members are from 7:30 a.m. through 4:00 p.m. from Monday through Friday as specified under Article 10 of the MOA.

93.

The Court should issue a declaratory judgment declaring that the UFTs bargaining unit members Veracoechea and Mondesir are entitled to the full tuition reimbursement for all of the classes that Veracochea and Mondesire took during the Spring 2011 and Fall 2011 semesters as specified under Article 3 of the MOA. AS AND FOR A SECOND CAUSE OF ACTION

94.

Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 93 as is fully set forth herein.

95.

Merrick Academy breached the MOA by failing to pay backpay, and by failing to implement the salary schedule and salary increases for the UFTs bargaining unit

members as provided for in Articles 6, 7, and 8 of the MOA. 96. Merrick Academy breached the MOA by requiring the UFTs bargaining unit member to work until 4:15 p.m. during the school week in violation of Article 10 of the MOA. 97. Merrick Academy breached the MOE by denying UFT members Veracoechea and Mondesir tuition reimbursement for all classes that each took during the Spring 2011 and Fall 2011 semesters. 98. The breaches of the MOA described in paragraphs 95 through 97 of the Complaint are breaches of contract. 99. Merrick Academy is liable for damages resulting from breaches of the MOA, plus interest, reasonable attorneys' fees, costs, and disbursements of this action.

WHEREFORE, plaintiff UFT respectfully requests that this Court issue an Order: a. Granting a declaratory judgment declaring that Defendants breached the collective bargaining agreement between Merrick Academy and the UFT and award further consequential relief; Issuing a judgment for breach of contract damages in an amount to be determined in accordance with the provisions of the MOA plus interest, reasonable attorneys' fees, costs and disbursements. Granting such other, further and different relief as to this Court seems just and proper, together with costs and disbursements of this proceeding.

b.

c.

Dated: New York, New York March ___, 2012 Respectfully submitted, RICHARD E. CASAGRANDE Attorney for Plaintiffs 52 Broadway, 9th Floor New York, New York 10004 (212)533-6300

By:

___________________________ Jennifer A. Hogan Of Counsel

VERIFICATION

STATE OF NEW YORK

) )SS: COUNTY OF NEW YORK)

MICHAEL MULGREW being duly sworn, deposes and says that: Deponent is the President of the United Federation of teachers, Local 2 AFT, AFL-CIO, the petitioner in the within proceeding; that deponent has read the foregoing Verified Complaint and knows the contents thereof; and that the same is true to deponents own knowledge; except as to matters therein stated to be alleged upon information and belief; and that as to those matters deponent believes them to be true.

MICHAEL MULGREW Sworn to before me this ____ day of March, 2012

(Notary Public)

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