71 A.D.2d 673 | N.Y. App. Div. | 1979
Lead Opinion
Appeal by the Webutuck Teachers Association from a judgment of the Supreme Court, Dutchess County, entered July 3, 1978, which vacated the award of an arbitrator and remanded the matter for further arbitration; the petitioner, Northeast Central School District, cross-appeals from so much of the judgment as remanded the matter for further arbitration. Judgment reversed, with $50 costs and disbursements to the Webutuck Teachers Association, and proceeding by petitioner to vacate the award dismissed. Cross appeal by the petitioner dismissed as academic, without costs or disbursements. The petitioner and the Webutuck Teachers Association executed a collective bargaining agreement which, in part, provided: "Teachers who are denied tenure after having completed the probationary period shall be afforded a full hearing before the Board. At such hearing the applicant shall be afforded the opportunity to show cause as to why he/she should be granted tenure.” June Kraus was employed by the petitioner as a probationary teacher on September 1, 1972. Mrs. Kraus was recommended for tenure by the district principal, after having received satisfactory evaluations of her teaching performance. She was denied tenure on April
Dissenting Opinion
dissents and votes to modify the judgment with the following memorandum: The provision in the collective bargaining agreement between the parties which is now before us states ("Article II—Association and Teachers Rights and Privileges”): "8. Teachers who are denied tenure after having completed the probationary period shall be afforded a full hearing before the Board. At such hearing the applicant shall be afforded the opportunity to show cause as to why he/she should be granted tenure. 9. The Board and Association will abide by the procedures as described in Chapter 866 of the laws of the State of New York commonly known as the Fair Dismissal Law 1972.” That law (Education Law, § 3031), as pertinent, states: "Procedure when tenure not to be granted at conclusion of probationary period or when services to be discontinued. Notwithstanding any other provision of this chapter * * * (a) boards of education * * * shall review all recommendations not to appoint a person on tenure, and, teachers employed on probation by any school district * * * as to whom a recommendation is to be made that appointment on tenure not be granted * * * shall, at least thirty days prior to the board meeting at which such recommendation is to be considered, be notified of such intended recommendation and the date of the board meeting at which it is to be considered. Such teacher may, not later than twenty-one days prior to such meeting, request in writing that he be furnished with a written statement giving the reasons for such recommendation and within seven days thereafter such written statement shall be furnished. * * * (c) This section shall not be construed as modifying existing law with respect to the rights of probationary teachers or the powers and duties of boards of education * * * with respect to the discontinuance of services of teachers” (emphasis supplied). The underlined word ’’not” is decisive in this case. Here the recommendation was that the, teacher be granted tenure; hence, under the statute, she had no legal rights to demand of the board of education a reason for her denial of tenure. The arbitrator both considered and conceded this in his award. He said: "It is true that at the time of her denial of tenure, Section 3031 of the Education Law did not