Matter of Buffalo Teachers Fedn. Inc. v Board of Educ. of the City Sch. Dist. of the City of Buffalo
Annotate this CaseDecided on February 11, 2021
Supreme Court, Erie County
In the Matter of the Application of Buffalo Teachers Federation, Inc., Petitioner, For an Order and Judgment Pursuant to Article 75 of the Civil Practice Law and Rules
against
Board of Education of the City School District of the City of Buffalo; DR. KRINER CASH, as Superintendent of the City School District of the City of Buffalo, and the CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO, Respondents.
801275/2021
Office of Robert T. Reilly
Attorneys for the Petitioner
Michael Del Piano, Esq.
Laura Delaney, Esq.
Nathaniel J. Kuzma, Esq.
Attorney for Respondents
Emilio Colaiacovo, J.
This proceeding was brought by way of a Petition filed pursuant to Article 75 of the Civil Practice Law and Rules wherein the Buffalo Teachers Federation (hereinafter "Petitioner") seeks an injunction in aid of arbitration against the Board of Education of the City School District of the City of Buffalo, Superintendent Dr. Kriner Cash, and the City School District of the City of Buffalo (hereinafter "Respondents"). More specifically, Petitioner alleges that re-opening public schools to in-person learning, in the midst of a global pandemic, is neither safe nor healthy. Petitioner maintains that by failing to provide information supporting the re-opening plan, the Respondents, in implementing its in-person plan, have violated the Collective Bargaining Agreement (hereinafter "CBA"). See "Exhibit #1". As such, because this is a grievable dispute under the CBA, Petitioner insists that an injunction is necessary pending arbitration. In opposition, Respondents insist that the Petitioner's grievance is not arbitrable and that the re-opening plan is both safe and proper under Federal and State guidelines. Further, Respondents [*2]argue that Petitioner has been an active participant in the re-opening process, has been provided information, and that any alleged concerns about re-opening are speculative. The Court, having denied Petitioner's request for a temporary restraining order, held an evidentiary hearing on the preliminary injunction on February 6, 2021. The Court's decision is as follows.
STATEMENT OF FACTS & PROCEDURAL
HISTORY
In response to the COVID-19 pandemic, in March 2020, Respondents closed all public schools to in-person learning and implemented a universal remote learning platform for all students and faculty. Beginning in the summer of 2020, Respondents began planning to resume in-person learning at some point during the 2020-2021 academic year. Committees and sub-committees were organized to begin analyzing and coordinating the resumption of in-person schooling.
New York State issued directives permitting on-site learning on either a full-day or a hybrid schedule for the 2020-2021 school year. The decision to resume in-person learning was left to each individual school district. Respondents elected not to implement in-person learning and instead continued with remote education. However, Respondents required teachers and staff to work two (2) days per week in school buildings while maintaining remote education. Petitioner filed a grievance and commenced an action on August 31, 2020 against Respondents wherein it sought a temporary restraining order and preliminary injunction to stop the District from implementing its plan. On September 24, 2020, New York State Supreme Court Justice Frank A. Sedita, III denied the request for both a temporary restraining order and preliminary injunction. See Buffalo Teachers Federation, Inc. v. Board of Education, et al, Index No. 809577/2020, September 24, 2020. Justice Sedita ultimately dismissed the petition on the merits. See Order, granted October 7, 2020.
Thereafter, on October 14, 2020, Petitioner sent a demand to Respondents requesting documentation about steps taken to ensure the health and safety of its members upon the reopening of schools to in-person learning. See "Exhibit #3". A dialogue began between Petitioner and Respondents as to how those documents would be produced. However, on November 18, 2020, Respondents directed that central office and building staff, which included teachers and other related personnel, no longer needed to report two (2) days a week because of the "Orange" COVID-19 designation. See "Exhibit #10".
On December 22, 2020, Superintendent Cash sent Petitioner and its members notice of the District's intention to resume in-person learning on February 1, 2021. See "Exhibit #46". This resumption was not for all grades, but limited to certain identified higher needs students, all Kindergarten through second grade students, and all high school seniors. The remaining grades and students would continue with remote learning.
Notwithstanding the planned re-opening, the dispute continued between Petitioner and Respondents as to the document demand sent on October 14, 2020. See "Exhibit #3". Petitioner filed an Improper Practice charge on January 26, 2021. See "Exhibit #6". Petitioner also filed a grievance on January 22, 2021, wherein safety and health concerns were raised about the Respondents' re-opening plan. See "Exhibit #7". On January 28, 2021, the Petitioner requested the Respondents permit their retained industrial hygienist to "independently inspect BPS's COVID related health and safety infrastructure." See "Exhibit #8". That very same day, the Respondents met with Petitioner to address its concerns about re-opening. Questions were [*3]answered and provided to the Petitioner at the meeting and subsequently thereafter. See "Exhibit #27" and "Exhibit #28".
Despite the ongoing discussions referenced above, Petitioner commenced this proceeding on January 29, 2021 seeking, among other things, a temporary restraining order preventing schools from re-opening as set forth above. However, because the Petition was filed late on Friday, January 29, 2021, the matter was not assigned to a Supreme Court Justice until the following Monday, well after in-person classes resumed. Upon assignment to this IAS Part on February 1, 2021, the Court considered argument from Petitioner and Respondents on the temporary restraining order. After hearing argument, the Court denied Petitioner's request for temporary relief, but scheduled a fact-finding hearing for February 5, 2021 to consider the request for a preliminary injunction.
FINDINGS OF FACT
At the hearing, Petitioner and Respondents stipulated to Exhibits 1 — 114. A list of those exhibits is annexed hereto and made a part hereof as "EXHIBIT A". The following testimony was heard:
Petitioner Witness — Karen Grover
Ms. Grover is a pre-Kindergarten teacher at the Stanley Makowski School #99. She also is the Union Representative at the school. She stated that she was on the school's building committee to address faculty issues. Ms. Grover testified that she had been advised that a dead rodent had been found in a colleague's classroom. She stated that the rodent was subsequently removed by maintenance. She observed that though her classroom was set up, there was dust on the tables and it did not appear that the floors had been cleaned. Ms. Grover testified that she did not observe anyone come into her classroom to disinfect it, however, she did receive a supply of disinfecting wipes, hand sanitizer, and face masks for the students from the District. Ms. Grover claimed she thought she was to also receive a gown and gloves, but never did. She also testified that the garbage in the faculty bathroom was overflowing and had not been emptied. Ms. Grover did admit that it was later emptied on Wednesday. She expressed that she had concerns about the building, but admitted her concerns were speculative.
On cross-examination, Ms. Grover acknowledged that she never made any requests for additional or specific personal protective equipment (hereinafter "PPE"). Normally assigned eighteen (18) students in her classroom, Ms. Grover testified that only four (4) students returned to the classroom following resumption of in-person learning on February 1, 2021. She admitted that she wore her mask, that the students in her classroom wore their masks, and that everyone was distanced at least six (6) to eight (8) feet apart. She also acknowledged that everyone's temperature is taken when entering the building. She also admitted that faculty and students and/or parents were required to complete daily health screening forms. See "Exhibit #42" and "Exhibit #43".
Petitioner Witness — Molly McDermott
Ms. McDermott is a school psychologist at Bennet Park Montessori at School #32. She testified that she has an auto-immune disease but "has no comorbidities." She noted that her elderly mother lives with her. Her mother suffers from chronic obstructive pulmonary disease and dementia. Ms. McDermott testified that she sought an "accommodation" from the District in light of her mother's condition. The District denied this accommodation and Ms. McDermott reported to work on February 1. She testified that she did not see any cleaning supplies when [*4]she entered her office, however, she eventually received disinfectant wipes. Ms. McDermott testified that upon her return to the building on February 1, she found a dead mouse in a trap that was in her office. Around the trap was mouse feces. She speculated that the mouse had been there for "some time." She emailed her principal on February 1 about the dead mouse and admitted it was removed the next day. Ms. McDermott conceded that there had been an ongoing rodent problem in her building that preexisted the COVID-19 pandemic. She was concerned that she was not working in a safe environment and did not want to spread the coronavirus to her mother.
During her cross-examination, Ms. McDermott acknowledged that she was not entitled to an accommodation under the CBA because her mother was not an employee of the District. She also conceded that she never raised any concerns with missing PPE to human resources or her principal. She acknowledged that no students ever come to her office. Instead, she goes to meet students in their classrooms or a hallway where she can appropriately socially distance. She noted that her interaction with students is normally limited to "a few minutes" at a time.
Petitioner Witness — Mike Jeffers
Mr. Jeffers is a social studies teacher for seventh, eighth, and ninth graders at School #131, which is located at the Tri-Main Center. Mr. Jeffers explained that School #131 is considered an "alternative school" where the neediest of students in the district attend. Many of the students have individual educational plans (hereinafter "IEP"), 504 plans, and some are considered high-risk youths. He is the Union delegate chair for School #131 and is a member of the buildings committee. Previously, Mr. Jeffers worked at School #4 which closed due to heating and HVAC issues. Thereafter, the school was moved to the Tri-Main Building, which is a rehabilitated warehouse originally built by Henry Ford where the Model-T Ford was built. Mr. Jeffers suffers from Multiple Sclerosis and has a compromised immune system. His doctors requested an accommodation for Mr. Jeffers. These accommodations included an N95 mask, face shield, and a plexiglass barrier around his desk. According to Mr. Jeffers, his accommodation request was denied. He described his classroom as filthy and opined that it had not been cleaned for some time. He discovered chipped paint, a broken seal on a window, and, generally, insufficient heat. He also stated that he was given one (1) tub of disinfectant wipes that was to be shared between six (6) teachers. He did note that other than the disinfectant wipes, many of his concerns were persistent problems that existed prior to the pandemic that the Respondents did not address. His main concern was air flow and ventilation. He testified that he is unable to open the windows for an extended period of time due to the antiquated heating system in the building. He explained that he did not believe the building to be safe.
On cross-examination, Mr. Jeffers noted that he only had three (3) students in his classroom. He does wear two (2) masks when in the classroom. He conceded that the windows in his classroom do open and close. He also stated that he had compiled a list of complaints about the building and sent it to the Buffalo Teachers Federation.
Petitioner Witness — Steven Fess
Mr. Fess is an Environmental Health and Safety Specialist and has been employed in the field for nearly forty (40) years. He testified he is a certified industrial hygienist, whose responsibility it is to ensure safety and compliance at the workplace. He noted that he was a Safety Manager and Industrial Hygienist at Xerox until 2016. See "Exhibit #114". Mr. Fess testified that Petitioner contemplated retaining him to complete an examination and evaluation of the buildings used by Respondents to ensure environmental and hygienic safety. Though aware [*5]of the October 2020 document demand ("Exhibit #3"), he testified that because that information was not provided, he could not reach an objective conclusion on the safety condition of the schools. To do so, in addition to the documentation requested, he would need to perform an aerosol analysis, which included droplet examinations, as well as an investigation in the ductwork and other infrastructure. He testified that such an investigation, which would include a team of hygienists, would take two (2) to three (3) weeks to complete.
During cross-examination, the witness acknowledged that he was unsure if the testing he suggested was necessary or required under the law or guidelines in order to re-open schools. Further, he testified that he could not offer a scientific opinion as to the safety of the buildings. Interestingly, notwithstanding the lengthy delay in resuming in-person education, he admitted that he was not contacted by the Petitioner until January 28, 2021. Mr. Fess acknowledged he was being compensated $275 per hour for his testimony. He also conceded that he was unaware if Respondents were under any obligation to allow a private industrial hygienist to inspect their buildings prior to the resumption of classes.
Petitioner Witness — Matthew Kibler
Mr. Kibler is a Labor Relations Specialist employed by the New York State United Teachers. He works exclusively with the Petitioner. It is his responsibility to assist members with contractual disputes, dealing with administrators, grievances, and the filing of improper practice charges. He testified that he participated in a meeting with the Respondents on January 28, 2021. The meeting, which was conducted using an online audio and web conferencing platform, included three (3) other labor relation specialists, BTF President Philip Rumore, BTF Secretary Rebecca Pordum, BTF Treasurer Joseph Montante, Buffalo School Board Counsel Nathaniel Kuzma, Buffalo School Board Chief of Staff Dr. Darren Brown-Hall, Jamie Warren, Engineer Barry Kirker, and others. The witness testified that the meeting lasted two (2) to three (3) hours. The purpose of the meeting was to discuss the February 1, 2021 re-opening. During the meeting, Petitioner was told by the Respondents that the classrooms would be cleaned, what grade of disinfectant would be used, and the different forms of PPE that was ordered by the District. The witness testified that the District also explained the ventilation and air filtration management that would be used during the re-opening phase. Logs would be kept of all infrastructural implements used to facilitate the safety measures adopted by the Respondents.
During cross-examination, Mr. Kibler admitted that while he was basically at the January 28, 2021 meeting to observe, he conceded that most of the meeting was spent addressing the list of questions compiled by teachers and staff. See "Exhibit #53". He admitted to asking one (1) question about testing and conceded that his question was sufficiently answered. He also acknowledged receiving an email on January 7, 2021 that included an offer from Respondents to meet two (2) days a week to address re-opening questions. He stated that he passed along the offer to President Rumore. However, he could not agree to the suggested meetings as only officers could "bind" the BTF. He admitted that although he frequently meets with members of the administration, he has not participated in any of the re-opening meetings. Interestingly, as Petitioner placed a high degree of importance on the October 2020 demand ("Exhibit #3"), the witness testified that it was not brought up at the January 28, 2021 meeting. While Mr. Kibler admitted that nearly all of the questions asked were answered, President Rumore insisted that the answers be in writing.
Respondent Witness — Dr. Darren Brown-Hall
Dr. Brown-Hall is the Chief of Staff for the Buffalo Public Schools. He testified that he [*6]chaired the Re-Opening Meetings for the District and participated in all public meetings and teachers' meetings. Dr. Brown-Hall explained that the New York State Department of Health and Department of Education provided guidance to schools on how to safely and responsibly re-open. See "Exhibit #50", "Exhibit #51", and "Exhibit #52". The witness explained the numerous requirements that needed to be satisfied to re-open. Among those requirements was that each district was required to develop its own plan and submit it to the State Department of Health and Department of Education for approval. The plan, according to Dr. Brown-Hall, needed to address capacity, social distancing, PPE and face coverings, hygiene, maintenance, transportation, food services, and how to best address the vulnerable population in schools. Each plan was also to include protocols as to how the District would screen, administer testing, and adopt containment measures. According to Dr. Brown-Hall, New York State guidelines required each plan to be formulated using a collective approach. Meetings organized to adopt a re-opening safety plan needed to include stakeholders. Those stakeholders included teachers, administrators, aides, central office staff, assistant superintendents, and parents' groups. Further, public meetings were required before a plan could be submitted for approval. See generally "Exhibit #50", "Exhibit #51", and "Exhibit #52".
In order to initiate the process, Dr. Brown-Hall testified that he asked Petitioner to provide members that would serve on the re-opening committees. President Rumore, according to Dr. Brown-Hall, sent a memorandum to the Superintendent advising of his selected members. See "Exhibit #34". These union members were placed on the committee and several of its sub-committees.
Notwithstanding the cessation of in-person schooling, the re-opening committee continued to meet in September, October, November, and December. According to Dr. Brown-Hall, the focus of those meetings was to resume in-person schooling as soon as possible and to complete a plan consistent with New York State guidelines. Dr. Brown-Hall explained that there were seven (7) meetings of the re-opening committee held to answer any questions from teachers.
All of the re-opening plans developed were available to the public, the Petitioner, and its members on the District's web site. The plans were also constantly updated. Although not required by New York State, the District required each school to develop re-opening plans. These plans were also listed on the District web site. See "Exhibits ##'s 54-113".Further, Frequently Asked Questions (a/k/a FAQ's) were also posted on the District's web site. The witness testified that neither the State Department of Health nor Department of Education refused or rejected the Respondents' plan.
Dr. Brown Hall stressed that all of the documentation developed during the re-opening plan process was shared with the Petitioner. As for the January 28, 2021 meeting, the witness observed that every question was answered and he felt that the meeting "went well".
As for compliance protocols, although COVID-19 testing was no longer required, the witness maintained that the District intended to continue testing the students and staff on a 30% basis. Masks are required to be worn, except when eating or when pre-Kindergarten students or napping. If students can not wear masks, they need to wear a shield. If they can do neither, they are required to do remote learning. Dr. Brown-Hall noted that there is a strategic plan to increase in-person learning through March.
On cross-examination, Dr. Brown-Hall acknowledged that school districts are not required to have in-person learning. Instead, he reiterated that this decision was left up to each [*7]individual school district. However, the witness noted that since September, it was the District's plan to resume in-person learning as soon as it was safe to do so. Dr. Brown-Hall acknowledged that as of August 2020 and September 2020, it was deemed "unsafe" to resume in-person learning. However, the witness clarified that this was due to issues concerning community spread and not anything particular to any school building.
Respondents Witness — Dr. Kriner Cash
Dr. Kriner Cash is the Superintendent of the Buffalo Public Schools and has served in that role for the past five and one-half (5 ½) years. Dr. Cash noted that of the forty-two (42) years he has spent in education, thirty-eight years have been in leadership roles. Dr. Cash testified that the District began working during the summer to build a plan to re-open schools for the fall term. On June 9, 2020, Dr. Cash formed a Health Advisory Council that would advise the Superintendent as to the unfolding virus. The Health Advisory Council included Dr. Dennis Kuo, a pediatrician, Dr. Oscar Gomez, an epidemiologist, and Dr. Willie Underwood, a urologist. See "Exhibit #32". Dr. Cash insisted that it was important to let the public know what went into his decision to re-open schools to in-person learning.
Dr. Cash testified that at the beginning of the school year it was not safe to resume in-person learning. He noted that he wanted to wait until the end of the first marking period, November 13th, to make any recommendations to the Board of Education on the reopening of schools. The witness testified to a "toggle effect", which he used to describe his observations when other schools opened only to then close after a rash of infections. Dr. Cash stated that this "toggle effect" would be disruptive to children if the District opened too hastily.
On December 9, 2020, Dr. Cash referred to the COVID-19 crisis as a "volcano". During a Board of Education Work Session, Dr. Cash stated that he was not prepared to send "our children and our staff into the mouth of a volcano." See "Exhibit #48". Dr. Cash explained that this comment was made in the context of community spread caused by the surge following the Thanksgiving and Christmas holidays. Dr. Cash insisted that the decision to re-open was "always about the virus in the community." Dr. Cash never wavered, though, about the safety of the buildings. He explained that twenty-eight (28) of those buildings were already open to the community to provide meals to students, as well as open to staff. Dr. Cash saw no conflict in his "volcano" comment made on December 9, 2020 with his memorandum to staff announcing the re-opening of schools made on December 22, 2020. See "Exhibit #46". Dr. Cash testified that Dr. Kuo, the District's Medical Director, "came up" with the February 1, 2021 re-opening date. Dr. Cash testified that the Buffalo Board of Education unanimously approved the re-opening plan at its January 20, 2021 meeting. By that meeting, the Superintendent felt confident it was safe to re-open schools.
Dr. Cash had a direct role in the inspection of school buildings. He described this process colorfully as "expect what you inspect". Dr. Cash inspected several schools and was satisfied with what he observed. He noted that all of the required New York State guidelines were satisfied. The schools had temperature scanners, temperature wands, health forms for screening, and PPE. He found the buildings to be clean and with enough space for appropriate social distancing to occur. Dr. Cash examined the cabinets where the PPE was stored and opined that each school was sufficiently stocked with PPE. The Superintendent also explained that members of his "cabinet" were assigned other schools to inspect to ensure compliance with New York State guidelines. Ultimately, each school that was to re-open on February 1, 2021 was physically inspected.
Prior to the re-opening on February 1, 2021, Dr. Cash invited President Rumore to accompany him on his tours of the buildings. President Rumore declined to attend the inspections, however, he provided Dr. Cash a list of deficiencies in the buildings. One in particular occurred at the DaVinci High School, which Dr. Cash personally addressed. He noted that he was committed to ensuring a "unified" approach to the re-opening and did not wish to be at odds with the Union. However, he noted that President Rumore was unwilling to accompany him or otherwise participate in the inspections.
During cross-examination, Dr. Cash explained that the majority of students will still be learning remotely under the re-opening plan. As to each individual school's re-opening plan, Dr. Cash could not testify with any certainty if those plans were submitted to the State for approval. At the same time, the witness indicated that he did not believe that they needed to be. The Superintendent believed that air quality tests were done and confidently expressed his feeling that all of the buildings were safe for teachers and students. As to the concerns raised by the Petitioner's witnesses, he testified that he was unaware of those specific complaints. He testified that he expected all staff to abide by New York State and CDC guidelines to keep facilities clean.
Respondents Witness — Dr. Dennis Kuo
Dr. Kuo is a Pediatrician employed by UBMD as Chief of the General Pediatric Division and an Associate Professor at the University at Buffalo Medical School. See "Exhibit #16". Dr. Kuo testified that Respondents contacted him one (1) year ago to advise as to the effects of COVID-19 on the Buffalo Public Schools. Subsequently, he was retained as the District's Medical Director. Dr. Kuo is in regular contact with the Superintendent, to whom he provides guidance.
Dr. Kuo testified that he recommended to Dr. Cash to begin the school year remotely. This delay, according to Dr. Kuo, was based on the likelihood of community spread. Because there was insufficient rapid testing and tracing capabilities to support the Buffalo Public Schools, Dr. Kuo thought it was unwise to open such a large school district at that time.
With respect to re-opening schools, Dr. Kuo described it as an evolving and "multi-layered" process that was influenced by trends in community transmission, the engineering of buildings, spacing, and availability of PPE. Dr. Kuo referenced the American Academy of Pediatrics guidance for safe schools. See "Exhibit #18". He indicated that these guidelines were constantly revised and proved useful in determining an appropriate date to re-open.
Dr. Kuo testified to access he had to "internal information" from Erie County, Kaleida Health, and the University at Buffalo, which continued to influence his decisions. He observed infection rate numbers increasing in October which subsequently increased hospitalization rates two (2) weeks later. Dr. Kuo felt that continued spikes after the Thanksgiving and Christmas holidays would render it ill-advised to open the schools. However, in December and January, he noted a decline in hospitalization rates and the over-all infection rate fell from 8% to 5%. Confronted with a comment referenced in the Buffalo News that "ratings would need to be below 5% [before in-person schooling could resume]", Dr. Kuo testified that the quote was taken out of context. See "Exhibit #48". Dr. Kuo stated that the CDC does not have a specific percentage in mind relative to the re-opening of schools. Instead, the percentage depends more on the amount of testing deployed. For instance, 5% in New York is different than 5% in a different state, according to Dr. Kuo. Dr. Kuo noted that 5% is a good starting point when considering in-person schooling.
Dr. Kuo emphasized that "there was no substitute for in-person learning." This is especially true for younger children. According to Dr. Kuo, significant medical literature explores the crucial need for in-person learning at early grades for minor children. This was a factor that could not be overlooked by the District when prioritizing the re-opening plan.
Dr. Kuo testified that he visited School #53 to inspect the safety of the building. He testified that he focused on the density and flow of the school building. He noted that he observed "visual cues" to direct traffic and similar cues for proper spacing and sanitizing stations. Based on his own examination and reports resulting from similar visits to other schools, he opined that the schools were ready to welcome in-person learning, albeit on a limited basis.
Concerning the issues raised by Petitioner's witnesses, he testified that he was unsure if the coronavirus could be transmitted by mice. As for transmission from surfaces, Dr. Kuo testified that there are different ways the virus can be cultured or transmitted. Dr. Kuo noted that the literature indicates that the virus cannot be significantly transmitted from solid surfaces. Instead, the main mode of transportation of the virus is from respiratory droplets. The most efficient way to prevent the transmission of the virus is distancing and proper masking.
During cross-examination, Dr. Kuo indicated that he presumed that schools would be observing New York State and CDC guidelines. As for the distribution of PPE, Dr. Kuo noted that some staff needed more PPE than others. Dr. Kuo did not believe that the lack of waxed floors, wiped desks, mouse feces, in and of themselves, were a basis to stop in-person learning.
Respondents Witness — James Weimer
Mr. Weimer is the Chief Operating Officer for the Respondent. Having been in education for nearly thirty-one (31) years as a teacher, project administrator, principal, and assistant superintendent, he is now responsible for building and plant operations. The witness testified that he is familiar with the re-opening plan as he is responsible for purchasing the required PPE. Mr. Weimer testified that the District has spent nearly $2 million on PPE. He has personally visited more than forty (40) buildings to determine if the PPE had been delivered and is in use. If there are shortages of PPE, school principals are to advise him.
Weimer testified that he sent guidance to each school regarding the process for cleaning. Barry Kirker, Director of Plan Operations and Custodial Services, is responsible for custodial inspection. It is his responsibility to respond immediately to any issues or concerns raised about the sanitation of each school. According to his testimony, Mr. Weimer has not been advised of any issues prior to the re-opening. He testified that he believes each building is clean and appropriate pursuant to State and Federal guidelines.
On cross-examination, Mr. Weimer conceded that there are several buildings that are without Engineers due to retirements. However, he maintained that Engineers from other buildings cover the school buildings that do not have a permanent Engineer. Mr. Weimer testified that he certainly welcomed input from teachers and staff about sanitation issues. He also testified that cleaning logs are maintained to record when certain tasks are done, such as high-top surface cleaning, floor sweeping, bathroom cleaning, and other hygienic measures. He noted that each building has undergone a "deep cleaning" in order to maintain the highest of standards. He maintained that any room or surface utilized by staff or students is to be cleaned. Further, the witness testified that each school is equipped with electro-static sprayers to disinfect rooms. Each building has one sprayer, however, some buildings have two. Mr. Weimer also testified about the efficiency of the filtration systems and the MERV filters used. The witness [*8]insisted that the filtration systems are checked three (3) times each week for obstruction. Logs are kept to record compliance and maintenance of the filtration systems.
Respondents Witness — Juan Perez
Juan Perez is an Associate Architect with the Buffalo Public Schools. He testified that the District retained the Cannon Architecture and Engineering firm (hereinafter "Cannon") to develop a strategic master plan as to how to best space the student population in each school to maximize social distancing. According to Mr. Perez, Cannon has institutional knowledge of each school building because the firm was involved in the $1.3 billion construction project of the Buffalo Public Schools within the last decade. Using that institutional knowledge, Cannon developed a plan to ensure appropriate social distancing within each school building. Instead of the six (6) foot social distancing recommended by New York State, Cannon's plan employed an eight (8) foot distancing plan for students and staff. He testified that he was not involved in the airflow and ventilation aspects of the re-opening plan. However, he did note that the reconstruction project that was undertaken within the last decade did not just make cosmetic changes, but major infrastructural improvements that would assist with better flow and ventilation.
During cross-examination, the witness testified that he was unaware of the Petitioner's request for documentation concerning the safety measures employed by the District in each school building.
CONCLUSIONS OF LAW
Legal Standard
It is well understood that the party seeking a preliminary injunction must demonstrate by clear and convincing evidence a likelihood of ultimate success on the merits, irreparable injury if the injunction were not granted, and a balancing of equities in favor of granting the injunction. Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839 (2005); Aetna Ins. Co. v. Capasso, 75 NY2d 860 (1990).If any one of these three requirements are not satisfied, the motion must be denied. Faberge Intern., Inc. v. Di Pino, 109 AD2d 235 (1st Dep't. 1985). As such, absent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief sought in the complaint. Reichman v. Reichman, 88 AD3d 680, (2nd Dep't. 2011); SHS Baisley, LLC v. Res Land, Inc., 18 AD3d 727 (2nd Dep't. 2005). In addition, preliminary injunctions should not be granted absent extraordinary or unique circumstances or where the final judgment may otherwise fail to afford complete relief. SHS Baisley, LLC v. Res Land, Inc., 18 AD3d at 727, supra. However, the decision whether to grant or deny a preliminary injunction is within the sound discretion of the Court. Masjid Usman, Inc. v. Beech 140, LLC, 68 AD3d 942 (2nd Dep't. 2009).
Credibility
It is well established that the "trial court, which had the opportunity to view the demeanor of the witnesses, [is] in the best position to gauge their credibility." Massirman v. Massirman, 78 AD3d 1021 (2nd Dep't. 2010). It is equally established that "[i]n a non-jury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion." Goldstein v. Guida, 74 AD3d 1143 (2nd Dep't. 2010). Thus, the trial court's assessment of the credibility of witnesses and [*9]evidence is afforded great weight on appeal. See Alper v. Alper, 77 AD3d 694 (2nd Dep't. 2010).
The Court found each witness to be credible in most instances. Ms. Grover, Ms. McDermott, and Mr. Jeffers, all teachers and support staff, genuinely testified that they believed the conditions at their schools were less than ideal. Ms. Grover, a teacher who testified about garbage removal and dusty floors, acknowledged that many of her health and safety concerns were speculative. Ms. McDermott, a school psychologist, testified that she did not believe the building she worked in was a safe environment. However, she acknowledged that, other than the dead mouse, she did not raise other health concerns with human resources. Mr. Jeffers maintained, more or less, that nothing done by the District, whether it was providing PPE or maintaining adequate air flow and ventilation, was safe for students or staff. This strained credulity at times. Grover, McDermott, and Jeffers all testified to universal mask wearing, appropriate social distancing, and the availability of PPE. While PPE was not as readily available on the very first day, each witness acknowledged it was ultimately provided whether they asked for it or not.
Mr. Fess, a certified industrial hygienist, was certainly an expert in his field. However, whether his services were ultimately needed or contemplated in a serious fashion, remains questionable. Mr. Fess acknowledged that he was only contacted days before the February 1, 2021 reopening. He even acknowledged not being retained, instead only being compensated on an hourly basis for his testimony. Certainly, the Court would have placed more weight on the concerns raised by the Petitioner had it retained the services of this expert closer to the Respondents' December 22, 2020 notice to resume in-person learning rather than only days before the re-opening actually occurred. Further, it remains unclear whether this was a serious overture, as the Court can find no controlling legal authority that would require Respondents to submit to some form of "independent" testing and analysis from a Union expert before they, in this case, re-opened schools.
Mr. Kibler, a labor relations specialist, did not recall many crucial details from meetings that he participated in. He could not recall whether something as critical as the October 2020 demand for information, which Petitioner repeatedly mentioned throughout the hearing, was even discussed at the January 28, 2021 meeting. What seemed to be a sine qua non for Petitioner, the demand did not make a lasting impression on its labor relations specialist nor was it crucial enough to raise during its penultimate meeting before re-opening. Mr. Kibler acknowledged the methodical steps taken by the District to prepare for in-person learning and that all questions asked were answered by Respondents at its January 28, 2021 meeting.
The Court found Dr. Darren Brown-Hall to be an extremely credible witness. Contrary to Petitioner's insinuations that the District pulled its re-opening plan out of thin air, Dr. Brown-Hall brought data and information that satisfied any concerns as to whether Respondents hastily or thoughtlessly reached its decision. Dr. Brown-Hall thoroughly described the process that began in the summer of 2020 to re-open schools to in-person learning. He testified about organizing committees and sub-committees that met on a regular basis to discuss and plan the re-opening that included members of the public and the Union. Dr. Brown-Hall communicated in a very thoughtful manner how the District complied with all requisite State and Federal guidelines to re-open to in-person learning.
Dr. Cash testified comprehensively about the measures taken by the District to prepare for in-person learning. His decision to empanel a Health Advisory Task Force, staffed with experts, not policy makers, was an important step taken by the Respondents to demonstrate their commitment to the health and safety of the students and teachers. Further, his outreach to the Union and willingness to work together belied the Petitioner's effort to portray the District's motives as [*10]insincere.
Dr. Kuo, an expert in the field of pediatric medicine, provided crucial context to what formed the District's decision to re-open. He pointed to data and research that corroborated his recommendations to the District to continue remote learning in the fall and ultimately to re-open in February. His reliance on the American Academy of Pediatrics and the Philadelphia Children's Hospital study supported his recommendation that re-opening schools would be safe for children and staff while also complying with State and CDC guidelines. Dr. Kuo methodically explained modes of transmission while at the same time understanding "spikes" in infections and hospitalizations that guided the District's decision to delay opening until February.
Jim Weimer, the Chief Operating Officer, and Juan Perez, the associate architect, both testified to the steps taken by Respondents to address issues of safety. Whether addressing maintenance, cleanliness, providing PPE, or developing appropriate spacing protocols to ensure proper social distancing, both witnesses credibly explained the thorough steps required of them by the Respondents to be ready to re-open.
Decision
The question that is before the Court is whether the Petitioner is entitled to a preliminary injunction in the context of a CPLR Article 75 petition seeking to compel arbitration. The Court finds it is not.
Petitioner contends the issue to re-open schools to in-person learning is a proper grievance that is subject to arbitration. By not providing the information it sought pursuant to its October 2020 demand and by failing to provide a safe work environment for its members, Petitioner insists the Respondents have violated Articles VII and XI of the CBA. As such, Petitioner maintains it is a proper grievance subject to arbitration. To that end, in order to receive a preliminary injunction, Petitioner must demonstrate the likelihood of success on the merits, irreparable injury, and a balancing of the equities in favor of granting the preliminary injunction. Family-Friendly Media, Inc. v. Recorder Television Network, 74 AD3d 738 (2nd Dep't. 2010). Here, because Petitioner fails to meet the very first basic requirement, it is not entitled to injunctive relief.
As held in Buffalo Teachers Federation, Inc. v. Board of Education, et al, Index No. 809577/2020, what Petitioner alleges is not a proper grievance subject to arbitration. The New York Court of Appeals established a two (2) step test to determine whether a grievance is arbitrable. See generally Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273 (2002). First, the Court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." Matter of Onondaga Community Coll. v. Professional Adm'rs of Onondaga Community Coll. Fedn. of Teachers & Adm'rs, 162 AD3d 1711 (4th Dep't. 2018) citing Matter of Mariano v. Town of Orchard Park, 92 AD3d 1232 (4th Dep't. 2012). "If the court determines that there is no such prohibition and thus that the parties have the authority to arbitrate the grievance, it proceeds to the second step, in which it must determine whether that authority was in fact exercised, i.e., whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration." Id. citing Matter of Kenmore-Town of Tonawanda Union Free Sch. Dist. [Ken-Ton Sch. Empls. Assn.], 110 AD3d 1494 (4th Dep't. 2013).
It is inconceivable that an arbitrator should decide such a monumental question that affects the general public. While Petitioner contends that the decision to return teachers to in-person learning affects its membership, it affects a larger population than just Petitioner. Instead, as Respondents correctly note, it is the responsibility of the Governor, the Boards of Health and/or [*11]Education, and individual School Districts to determine crucial issues of public policy, such as the education of children, in the midst of a global pandemic. And while that authority is certainly not absolute, in this context, the Court finds there exists a public policy prohibition to the arbitration requested here. Granting a preliminary injunction would certainly deprive the State from exercising supervision of a constitutionally required obligation — to provide an education to children.[FN1] As such, the issue to re-open schools to in-person learning is not subject to arbitration.
Notwithstanding the question of arbitration, Petitioner has nonetheless failed to demonstrate the need for injunctive relief. Petitioner has not shown a likelihood of success on the merits, irreparable harm nor the balancing of equities in its favor. While the Court does not dismiss out of hand the concerns raised by Petitioner as reflected in the testimony, they, in and of themselves, do not rise to the level of enjoining a school district from making a decision to proceed with in-person learning. The speculative nature of the witnesses' concerns, unsupported by science or data, does not justify closing schools nor does it establish a safety risk. Further, the question of whether a demand for information was adequately responded to does not rise to the gravity of granting the relief Petitioners herein seek.
To the contrary, the record supports the proactive and protective steps the Respondents took to ensure that school buildings were safe for students and faculty. The testimony demonstrates that the Respondents, beginning in the summer, began to prepare for in-person learning. This process included administrative staff as well as members of the BTF. All interested parties, including the District, the Union, and the public, had a substantive say in how schools would open. Further, as required by the State Department of Health, the Respondents submitted a plan to re-open. No testimony or evidence was received that would show that plan was rejected by the State. Also, there was no evidence that the Plan did not comply with the State's guidelines.The Plan, as well as those for each school, was approved and posted on the District's website for all to see. The intention to re-open was not a surprise to Petitioner. Far from it, as Petitioner was involved in the formation of the plan it now criticizes.
Further, the plan to re-open was guided by medical experts. The District, which was the only one in the State yet to re-open to in-person learning prior to February 1, committed itself to following a plan that professionals provided which guided the Superintendent to, at first, continue remote learning in the Fall and ultimately in-person learning in February 2021. Dr. Kuo dispassionately explained the methodology and factors he considered, as Medical Director, to recommend re-opening. Those recommendations, in concert with the social distancing master plan completed by Cannon, the purchase and distribution of $2 million of PPE, as well as extensive cleaning, supported re-opening on a limited basis for Kindergarten through Second grade, Seniors, and the most educationally challenged.
The Petitioner's objections, including the failure to provide documentation, general uncleanliness, or refusing to allow its industrial hygienist to inspect the school buildings, are unavailing. Respondents maintain that the documents at the heart of Petitioner's grievance were provided, albeit delayed. Respondents insist that during their January 28, 2021 meeting they provided a document that answered all submitted questions. There was little more Respondents could do to forestall the Petitioner's seemingly predetermined course to oppose any re-opening to in-person learning.
As Dr. Kuo noted, and the supporting medical research shows, with proper precautions taken, such as cleaning, ventilation, spacing, and mask wearing, transmission of the virus is significantly decreased at schools. Recently, three (3) CDC researchers in the Journal of American Medical Associates (hereinafter "JAMA") wrote,
" the preponderance of available evidence from the fall school semester has been reassuring as many schools have reopened for in-person instruction in some parts of the US as well as internationally there has been little evidence that schools have contributed meaningfully to increased community transmission."[FN2]Clearly, empirical information does not substantiate Petitioner's concerns or support its argument for a preliminary injunction.
Because Petitioner has failed to meet its burden to demonstrate that it is likely to succeed on the merits as to the arbitration or that there exists irreparable harm or a balancing of equities in its favor should in-person schooling resume, the relief requested must be denied. The totality of the evidence does not justify injunctive relief. Instead, Respondents have satisfied all CDC and State guidelines to re-open. Further, the proactive steps taken by Respondents adequately address recommendations made by clinicians that advise in-person learning can occur without threat of significant transmission of the virus. See generally "Exhibit #18". As such, Petitioner's request for a preliminary injunction is hereby DENIED.
The Court hereby schedules a further conference to discuss the merits of the Petition now that the preliminary injunction has been denied. Counsel shall be available on March 9, 2021 at 2:00 p.m.
This shall constitute the Decision and Order of this Court.
SO ORDERED,
______________________________
Hon. Emilio Colaiacovo, J.S.C.
ENTER
Buffalo, New York
February 11, 2021
EXHIBIT A
Court's Exhibits
Petitioner Exhibits
1
BTF CBA
2
BPS Remote Reopening Plan
3
2020-10-14 Information Demand
4
Notice of Claim
5
Mueller and Strom E-mail Chain
6
Improper Practice Charge
7
Grievance
[*12]8
Rumore BTF Industrial Hygienist Inspection Request
9
Amended Grievance
10
Cash Memorandum
11
2020-12-10 Buffalo News Article
12
BPS Phased Reopening Plan 2021-02-01
13
Board of Education Reopening Resolution 20211-01-20
14
30 Day Notice
15
Fess Report
Respondent Exhibits
16
Kuo CV (Feb. 2021)
17
Viewpoint: Data and Policy to Guide Opening Schools Safely to Limit the Spread of SARS-CoV-2 Infection
18
American Academy of Pediatrics: COVID-19 Guidance for Safe Schools
19
PolicyLab, Policy Review: Evidence and Guidance for In-Person Schooling during the COVID-19 Pandemic
20
CDC: Indicators for Dynamic School Decision-Making
21
Erie County Department of Health: Covid Data (Confirmed cases by age and gender; diagnostic testing summary last 6 weeks; fatalities; zip code data)
22
ECDOH Data: Erie County Hospitalization Data
23
ECDOH Presentation to Buffalo Public Schools: COVID-19 and Returning to School
24
Karl Yu Data Graphs
25
Special Education Re-Opening Protocols (Jan. 2021)
26
Return to In-Person Instruction FAQ
27
Questions from Principal's Meetings with Answers
28
FAQ and Call Responses
29
Back to Buildings Checklist
30
Buffalo Public Schools 2020-2021 Reopening Plan Following Period of Extended Closure
31
Health and Safety
32
Buffalo Public Schools Superintendent's Health Advisory Council Member Biographies
33
Reopening Subcommittees
34
Memo from Rumore to Cash: Teachers to Serve on Re-Opening Committee
35
Reopening Committee Meeting Minutes: October 19, 2020
36
Reopening Committee Meeting Minutes: November 2, 2020
37
Reopening Committee Meeting Minutes: December 14, 2020
38
NYS Checklist for Pre-K to Grade 12 School Reopening Plans
39
NYS Guidelines for In-Person Instruction at Pre-K to Grade 12 Schools
40
Isolation Room Flowchart
41
Isolation Room Protocols
42
COVID-19 Daily Health Screening Form (Staff)
43
COVID-19 Daily Health Screening Form for Students
44
Dr. Cash Message of January 28, 2021
45
Kriner Cash Biography
[*13]46
Dr. Cash Letter of December 22, 2020 (30 Day Notice)
47
Dr. Cash's Weekly Brief of January 29, 2021
48
The Buffalo News: "'Too much community spread' keeping city schools closed"
49
Kriner Cash, Ed.D. Comprehensive C.V.
50
NYS DOH Guidance
51
NYS-DOH Supplemental Guidance PreK-12
52
NYSED Recovering, Rebuilding, and Renewing: The Spirit of New York's Schools, Reopening Guidance
53
Safety Concerns Addressed (Health and Safety, Accommodations, Speech Therapy, Miscellaneous)
54
003 D'Youville Porter Campus Reopening Plan
55
006 Buffalo Elementary School of Technology Reopening Plan
56
017 E.C.C. Reopening Plan
57
018 Dr. Antonia Pantoja Reopening Plan
58
019 Native American Magnet Reopening Plan
59
027 Hillery Park Elementary Reopening Plan
60
030 Frank A. Sedita Elementary Reopening Plan
61
031 Harriet Ross Tubman Reopening Plan
62
032 Bennett Park Montessori Reopening Plan
63
033 Bilingual Center Reopening Plan
64
037 Marva J. Daniel Futures Preparatory School Reopening Plan
65
042 Occupational Training Center Reopening Plan
66
043 Lovejoy Discovery School Reopening Plan
67
045 International School Reopening Plan
68
048 School 48 at MLK Reopening Plan
69
050 North Park Community School Reopening Plan
70
053 Community School Reopening Plan
71
054 Dr. George Blackman E.C.C. Reopening Plan
72
059 Dr. Charles R. Drew Science Magnet Reopening Plan
73
061 Arthur O. Eve School of Distinction Reopening Plan
74
064 Frederick Law Olmsted Reopening Plan
75
065 Roosevelt E.C.C. Reopening Plan
76
067 Discovery School Reopening Plan
77
069 Houghton Academy Reopening Plan
78
072 Lorraine Elementary Reopening Plan
79
074 Hamlin Park Claude & Ouida Clapp Academy Reopening Plan
80
076 Herman Badillo Bilingual Academy Reopening Plan
81
079 Pfc. William J. Grabiarz Reopening Plan
82
080 Highgate Heights Reopening Plan
83
081 School 81 Reopening Plan
84
082 E.C.C. Reopening Plan
85
084 Erie County Health Care Center for Children Reopening Plan
86
089 Dr. Lydia T. Wright School of Excellence Reopening Plan
87
092 B.U.I.L.D. Community School Reopening Plan
88
093 Southside Elementary Reopening Plan
[*14]89
094 West Hertel Elementary Reopening Plan
90
095 Waterfront Elementary Reopening Plan
91
097 Harvey Austin School Reopening Plan
92
099 Stanley Makowski E.C.C. Reopening Plan
93
131 The Academy School #131 @ 4 Reopening Plan
94
156 Frederick Law Olmsted Reopening Plan
95
192 Buffalo Academy for Visual & Performing Arts Reopening Plan
96
195 City Honors School at Fosdick Masten Park Reopening Plan
97
196 Math, Science & Tech Preparatory School @39 Reopening Plan (5-8)
98
197 Math, Science & Tech Preparatory Reopening Plan (9-12)
99
198 International Preparatory School #198 @202 Reopening Plan
100
206 South Park Reopening Plan
101
207 Lafayette International Reopening Plan
102
208 Riverside Academy Reopening Plan
103
212 Leonardo da Vinci Reopening Plan
104
301 Burgard Reopening Plan
105
302 Emerson School of Hospitality Reopening Plan
106
304 Hutchinson Central Technical Reopening Plan
107
305 McKinley Reopening Plan
108
309 East Community High School Reopening Plan
109
355 The New Buffalo School of Culinary Art & Hospitality Management Reopening Plan
110
357, 358, 359, 360, 361, 367 Pathways Academy Reopening Plan
111
363 Lewis J. Bennett High School of Innovative Technology Reopening Plan
112
366 Research Laboratory High School for Bioinformatics & Life Sciences @ Bennett Reopening Plan
113
415 Middle Early College Reopening Plan
114
C.V. Steven Fess, CSP, CIH, SMS, FAIHA
FootnotesFootnote 1:NY Const. art XI, §1.
Footnote 2:Data and Policy to Guide Opening Schools Safely to Limit the Spread of SARS-CoV-2 Infection, by Margaret A. Honein, PhD; Lisa C. Barrios, DrPH; John T. Brooks, MD, JAMA, January 26, 2021. See https://jamanetwork.com/journals/jama/fullarticle/2775875
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