65 A.D.2d 136 | N.Y. App. Div. | 1978
OPINION OF THE COURT
In this proceeding to stay arbitration, the petitioner school district is appealing from so much of a judgment of the Supreme Court, Nassau County, as denied the branch of its petition which pertained to a grievance filed by the respondent faculty association challenging a new regulation promulgated by the district affecting nonschool employment. For the reasons which follow, the judgment should be affirmed insofar as appealed from.
On or about April 26, 1977, the petitioner school district, through its board of education, adopted a new "personnel policy” affecting nonschool employment, which provided, inter alia, that school personnel, including teachers, would be per
On appeal, it is the district’s contention that arbitration of the dispute in question is (1) premature and (2) violative of public policy. We cannot agree.
Beginning with a consideration of the first issue, it is petitioner’s position that the instant dispute is not "ripe” for determination, since as yet no one has been disciplined for violating the subject "personnel policy”. Accordingly, it is argued, arbitration must await enforcement of the challenged restriction against a named employee and may not he used to secure, in advance, a declaratory interpretation of the underlying agreement. This argument is not persuasive.
Article XVIII of the collective bargaining agreement (entitled "Grievances and Arbitration”) specifically provides, in paragraph A, that: "In order to continue harmonious and cooperative relationships between the District and its teachers, it is hereby declared to be the purpose of this Article to provide for the speedy settlement of certain differences between the parties through procedures under which grievances may be presented free from coercion, interference, restraint, discrimination or reprisal.” Paragraph B of that article pre
Although not unmindful of the general reluctance on the part of courts to decide issues in the abstract, we are nevertheless constrained to hold, in the face of the statute, that the presumed absence of a "justiciable” controversy in the instant case cannot be used to bar the arbitration of an otherwise bona fide dispute within the meaning of the agreement. We are equally impressed with the observation in Curran v Laird (supra, pp 124-125) to the effect that a party may still be aggrieved by a regulation "even though * * * not now or imminently engaged in or proposing activities interdicted [thereby] * * * provided his ability to undertake cogent planning of his present or future operations is [presently] inhibited.” While stated in a somewhat different context, i.e., the
Turning to a consideration of the second issue, it is petitioner’s contention that notwithstanding the "ripeness” of the instant dispute, arbitration must nevertheless be stayed on the ground of public policy, for to read paragraph D of article II of the agreement as respondent would have it read, would constitute an unlawful delegation of petitioner’s nondelegable, statutory duties (1) to manage and control the educational affairs of the district (Education Law, § 1709, subd 33), and (2) to employ and retain only qualified teachers, dismissing those tenured teachers who are guilty of "insubordination, immoral character or conduct unbecoming a teacher” and denying tenure to probationary teachers with or without cause at the end of their probationary term (Education Law, § 3012, subd 2; see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; cf. Board of Educ. of Great Neck Union Free School Dist. v Areman, 41 NY2d 527). Accordingly, it is petitioner’s position that paragraph D of article II of the agreement concerns matters which are not permissible subjects of negotiation (and therefore arbitration) under the Taylor Law, and thus any provision with reference thereto must be considered unenforceable (see Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Board of Educ. of Great Neck Union Free School Dist. v Areman, supra). Once again we are compelled to disagree.
While it is true, as petitioner contends (and respondent does not argue to the contrary), that a contract provision restricting its right to deny tenure to a probationary teacher at the end of his term, or to remove tenured teachers for "insubordination, immoral character or conduct unbecoming a teacher” (Education Law, § 3012, subd 2) would be violative of public policy and therefore unenforceable (see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., supra), it is, at the same time, by no means clear that a district may not, through collective bargaining, surrender its right to discipline tenured teachers for lesser degrees of "unfavored” conduct, for example, by specifically agreeing that "no lawful religious, political, civic, economic or social activities of any teacher or the lack thereof, shall be grounds for any discipline, discrimination or adverse action against any [such] teacher”. The latter need not be construed as intrusive upon the former. In addition, it
Without passing upon the merits of the instant dispute (as indeed we are prohibited from doing by CPLR 7501), it therefore appears that at least to the extent limited above, paragraph D of article II of the agreement is not the result of impermissible negotiations between petitioner and respondent, nor can it be said that the language of the arbitration clause is so narrowly drawn as to exclude this particular dispute from its scope (see Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.] supra, pp 513-514).
Finally, for a court to order a stay at this stage of the proceedings on the sole ground that the arbitrator’s award might conceivably be so broad as to infringe upon petitioner’s nondelegable powers, as petitioner suggests, would be inappropriate, for, as the Court of Appeals (per Wachtler, J.), has just recently observed in Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn. (45 NY2d 411, 417-418):
"The courts may intervene in a dispute which the parties had agreed to arbitrate where the arbitrators could not grant any relief without violating public policy (Board of Educ. v Arencan, 41 NY2d 527); however that power to intervene is restricted * * *
"[E]ven though the full scope of relief in precisely the form demanded by the teachers association might, if granted in toto by the arbitrator, ultimately lead to an award which would be subject to vacatur this consideration does not, standing alone, justify judicial interference with the arbitration process at this stage. The arbitrator’s broad power to fashion appropriate relief máy therefore not be presumed in advance to necessarily entail public policy conflicts discernible in the abstract by the courts. It follows that where the relief sought is broader than any enforceable remedy that may prospectively be granted but may also be adequately narrowed * * * a stay of arbitration on policy grounds is premature and unjustified.”
As the arbitration demanded here cannot be said to lead inexorably to the delegation problems urged by the district, the petition to stay arbitration was properly denied (see Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., supra). Moreover, should the arbitrator’s award result in the policy conflicts perceived by the district, resort to the courts will still be available and the review undertaken at that time will not have to rest upon speculation or surmise.
Hopkins, J. P., Latham and O’Connor, JJ., concur.
Judgment of the Supreme Court, Nassau County, dated November 28, 1977, affirmed insofar as appealed from, with $50 costs and disbursements.
We note in passing that the standard incorporated into this regulation is particularly vague and subject to varied interpretations.