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Petition

Petition

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Published by: GothamSchools.org on Jul 03, 2012
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10/15/2012

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SUPREMECOURT
OF
THE
STATE
OF
NEWYORK
COLTNTYOF
NEW
YORK
In
the
Matterof
the
Application
of
THE
BOARD
OF
EDUCATION
OFTHE
CITY
SCHOOL
DISTRICT
OF
THE
CITY
OF
NEW
YORK
("DOE"),
and
DENNIS
M.
WALCOTT,
as
Chancellorof
the
DOE,
VERIFIEDPETITION
Index
No.
Petitioners,
For
a
Judgment
and
Order
Pursuant
to
Article
75
of
the
Civil
Practice
Law
and
Rules,
-
against
-
MICHAEL
MULGREW, as
President
of
the
TINITED
FEDERATION
OF
TEACHERS,
Local
2,
American
Federation
of
Teachers,
AFL-CIO;
and
ERNEST
LOGAN,
as
President
ofthe
COLTNCIL
OF
SCHOOL
SUPERVISORS
AND
ADMINISTRATORS,
Local
1,
American
Federation
of
School
Administrators,
AFL-CIO,
Respondents.
Petitioners,
THE
BOARD
OF
EDUCATION
OF
THE
CITY
SCHOOL
DISTRICT
OF
THE
CITY
OF
NEV/YORK
(also
known
as
the
New
York
City
Department
of
Education
("DOE")),
and
DENNIS
M.WALCOTT,
as
Chancellor
of
the
DOE, by
their
attorney
MICHAEL
A.
CARDOZO,
Corporation
Counsel
of
the
City
of
NewYork,
as and
for
their
Verified
Petition,
allege
as
follows:
PRE,LIMINARY STATEMENT
L
Petitioners
bring
thisArticle
75
proceeding
to
vacate
the
decision
and
award
issued
by
Arbitrator
Scott
E.
Buchheit
("Arbitrator
Buchheit")
on
June
29,
2012, inI
 
Arbitration
BetweenUnited
Federation
of
Teqchers,
Local
2, Council
of School Supervisors
and
Administrators,
Local
I
and
New
York
Cifii
Department
o.f
Education,
AAA,
Case
No.
13
390
01302
l2("Award").
A
copy
of
the
Award
is
annexed
hereto
as
Exhibit
"l."
2.
The Award
purports
to
resolve
grievances
brought
by
the
UnitedFederation
of
Teachers
("UFT")
and
the Council
of
School
Supervisors
and
Administrators
("CSA"),
(collectively,
the"lJnions"),which
alleged
that
the DOE
violated
their
respective
Collective Bargaining
Agreements
("CBAs")
by
closing
twenty-four
failing
schools
and seeking
to
staff
new
schoolspursuantto the terms
and
procedures
of
the
CBAs.
3.
The
Award
concluded,
without offering
any analysis,lthat the
Unions'
grievanceswere
arbitrable
and,
moreover,
sustained
them.
4.
N.Y.
Civil
Practice
Law
andRules
("CPLR")$
751l(bxlxiiÐ
providesthat
an
arbitrator's
award shall
be
vacatedwhere:
an
arbitrator,
or
agency
or
person
making
the awardexceeded
his
power
or
so imperfectly
executed
it
that
final
and
definite
award uponthesubjectmattersubmittedwasnot
made.
5.
As
discussed
below, the
Award
exceeds
Arbitrator
Buchheit's power
and
violates
public
policy,
and,
accordingly,
must
bevacated.
PARTIES
6.
Petitioner
DOE
is
organized
under
and
exists
pursuant
to
the
N.Y.
Education
Law,
and
maintains
its
principal
place
of
business
in
New
York
County.
7
.
Respondent
Mulgrew
is
a
resident
of
the
State
and
City
of
NewYork,
and
is
the
President
of
the
UFT,
an
unincorporated
labor
organization
that
is
the
recognized
I
The
Award
notes
that
an
Opinion
will
follow
at
a
later
date
1
'L-
 
bargaining
agent
for all
nonsupervisory
pedagogical personneland classroomparaprofessionalsemployed by theDOE.
8.
Respondent
Logan
is
a
resident
of
the
State
and
City
of
NewYork,
and
is
thePresident
of
the CSA,
an
unincorporated labor organizationthatis
therecognized bargaining
agent
for all
supervisorypedagogicalpersonnelemployed
by
the DOE.
JURISDICTION ANDVENUE
9.
The
jurisdiction
of this Court to
hear
thispetitionis
based
on
Article
75
of
the
CPLR
and,
inparticular,CPLR
$$
7501
,7502,
and 7511.
10.
Venue
is
properlyplaced
in
New
York
County,
pursuant
to
CPLR
$
7502(aXi), on the
grounds
thatthe
DOE
does
business
within
New
York
County
and
it
is
the
countyin
which
events
material
to
thispetitiontook
place,
FACTS
A.
Background
1L
The
New
York
State
Legislature
vestedthe
DOE
Chancellor
with
the
power
to
create
and close
schools.
See
N.Y.
Education
Law
$
2590-h.
When
the
Chancellor
determines
to
close
a
school,
the DOE
mustprovidenotice
to
the
public
and
prepare
an
Educational Impact
Statement
("EIS"),
giving
an
in-depth
analysis
of
the effectthat closing
the
school
will
have
onthe
community,
at
least
forty-five
days
before
a
Panel
for
Educational
Policy
("PEP")
vote.
See
Afhdavit
of
Assistant Corporation
Counsel
Maxwell D.
Leighton
("Leighton
Aff.")
atl25.
12.
Pursuant
to
8N.Y.C.R.R.
$
100.2,
the
StateCommissioner
of
Education
("Commissioner")
designates
schools
that
are
the
farthest
from
meeting
certain
academic
benchmarks he
has
establishedandmost
in
need
of
improvement
as
Schools
Under
Registration
-3-

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