36 A.D.2d 753 | N.Y. App. Div. | 1971
In our opinion, sections E and F of article VIII and all of article XXI are valid for the reasons stated by Special Term. Moreover, we find that Matter of Teachers Assn. (Board of Educ.) (34 A D 2d 351) is further authority supporting the validity of those portions of the agreement and is also supportive of the legality of section A of article XI of the agreement. Concerning section A of article XI, in our opinion plaintiff’s agreement to pay the tuition for approved graduate studies that a teacher might undertake is, in effect, merely an undertaking to pay a further relatively small salary increment to teachers who are improving their skills. Plaintiff has the power to undertake to make such payments (Matter of Teachers Assn. [Board of Educ.], 34 A D 2d 351, supra), especially since the payments would further 'the statutory public purpose of increasing the skills of teachers in their professional capacity. Concerning Special Term’s decision and judgment sustaining only in part the legality of section C of article XVIII of the agreement, it is our opinion (1) that a Board of Education is better qualified to decide whether a teacher in its employ should be dismissed for incompetency or misconduct than an arbitrator or arbitrators and (2) that, since the dismissal of a teacher for incompetency or misconduct is a matter of vital importance to the public and especially school children who would be affected thereby, the contractual delegation to an arbitrator or arbitrators of the power to determine whether a teacher should be dismissed for incompetency or wrongdoing is void as contravening major public policy (cf. Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 N Y 2d 621, 626-629; Norwalk Teachers’ Assn. v. Board of Educ. of City of Norwalk, 138 Conn. 269; Matter of Michelman, 5 Misc 2d 570; Matter of Diamond, 80 N. Y. S. 2d 465, affd. 274 App. Div. 762; Matter of Swislocki [Spiewak], 273 App. Div. 768). For the foregoing reasons, as well as for the reasons stated by Special Term in its opinion and decision, we are affirming the determination concerning the legality of section C of Article XVIII of the agreement. Martuseello, Acting P. J., Latham and Brennan, JJ., concur; Shapiro, J., concurs with the majority,