Acting Superintendent of Schools of Liverpool Central School Dist. v. United Liverpool Faculty Ass'n
| Decision Date | 12 July 1976 |
| Citation | 53 A.D.2d 239,385 N.Y.S.2d 879 |
| Parties | , 93 L.R.R.M. (BNA) 2472 Application of the ACTING SUPERINTENDENT OF SCHOOLS OF LIVERPOOL CENTRAL SCHOOL DISTRICT, Respondent, For a Judgment Staying the Arbitration Proceeding Commenced by the UNITED LIVERPOOL FACULTY ASSOCIATION, Appellant. Application of the ACTING SUPERINTENDENT OF SCHOOLS OF LIVERPOOL CENTRAL SCHOOL DISTRICT, Appellant, For a Judgment Staying the Arbitration Proceeding Commenced by the UNITED LIVERPOOL FACULTY ASSOCIATION, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bernard F. Ashe, Albany, for United Liverpool Faculty Ass'n (Richard Heffern, Albany, of counsel).
O'Hara, O'Hara & Vars, Liverpool, for Acting Supt. of Schools, Liverpool Central School District (Edward O'Hara, Liverpool, of counsel).
Before MOULE, J.P., and CARDAMONE, SIMONS, DILLON and WITMER, JJ.
These was two related proceedings pursuant to CPLR 7503(b) to stay arbitration under the collective bargaining agreement between the Liverpool Central School District (School District) and the United Liverpool Faculty Association (Faculty Association). In case #1 (Gargiul) the respondent Faculty Association appeals from an order at Special Term in Onondaga County which granted the School District's petition and stayed arbitration of Mrs. Gargiul's grievance. In Case #2 (Schwab) the School District appeals from an order of Special Term in Onondaga County which dismissed its petition and ordered arbitration of Ms. Schwab's grievance.
Both demands for arbitration arise under the arbitration clause contained in the teachers' collective bargaining agreement, effective July 1, 1974 through June 30, 1976 which permits either party not satisfied with the decision at Stage 3 to submit the grievance to arbitration. If so submitted, the decision of the arbitrator is final and binding upon all parties.
The contractual definition of 'grievance' is the crux of both appeals. Grievance is defined in the agreement:
'Grievance shall mean any claimed violation, misinterpretation, or inequitable application of the existing laws, rules, procedure regulations, administrative orders or work rules of the District, which relates to or involves Teachers' health or safety, physical facilities, materials or equipment furnished to teachers or supervision of Teachers; provided, however, that such term shall not include any matter involving a teacher's rate of compensation, retirement benefits, disciplinary proceeding or any matter which is otherwise reviewable pursuant to law or any rule or regulation having the force and effect of law.'
The facts of each case discussed respectively follow.
Case #1 (Gargiul). Mrs. Lorraine Gargiul, age forty, was a kindergarten teacher employed at two elementary schools in Liverpool. On November 27, 1974 Mrs. Gargiul became ill and commenced a sick leave period. By letter to the superintendent dated February 17, 1975 she requested permission to return to work effective March 17, 1975. The superintendent had previously insisted in August, 1974 that Mrs. Gargiul be examined by the school district physician. After Mrs. Gargiul began her sick leave the superintendent reiterated by letter dated February 5, 1975 that she must be examined by the school physician before returning to her teaching position. This demand was repeated in writing to Mrs. Gargiul after receipt of her letter of intent to return. The grievant stated that she was willing to be examined by any recommended woman physician. By resolution dated March 17, 1975 the Board of Education directed that Mrs. Gargiul submit to a physical examination by the school district physician before returning, if that physician deemed such a physical examination necessary after reviewing her medical history. 1 Mrs. Gargiul was placed on a leave of absence until the matter was resolved.
Thereafter on April 10, 1975 Mrs. Gargiul commenced her grievance alleging that the School District violated the collective agreement because it denied her pay and fringe benefits and applied existing laws, rules and administrative orders of the District inequitably. She sought payment of salary and benefits from the date the District 'arbitrarily discontinued contractual benefits'. The School District's principal denied the grievance on the ground that no grievable matter under the contract definition of 'grievance' was presented. The superintendent and the Board of Education subsequently approved the denial without formal explanation. When the Faculty Association demanded arbitration, the School District commenced the present proceeding to stay arbitration on August 5, 1975.
On August 6, 1975 Mrs. Gargiul individually initiated an appeal to the Commissioner of Education pursuant to section 310 of the Education Law alleging denial of contract, statutory and constitutional rights by the School District and seeking an order permitting examination by a female physician plus recovery of lost salary, lost insurance benefits and damages for pain and suffering. 2 The School District thereafter moved to have the arbitration stayed on the additional ground that the right to arbitrate was waived by institution of the appeal to the Commissioner.
The Faculty Association in its answer alleged essentially that the grievance asserted a presumptively arbitrable dispute. It pointed out that it was a party only in the demand for arbitration and not a party to the section 310 appeal in which different rights and issues were involved. Special Term granted the School District's petition and stayed arbitration on the ground that the alleged grievance involved a disciplinary proceeding expressly excluded from arbitration by the contract's definition of a 'grievance'.
Case #2 (Schwab). Sharon Schwab commenced employment with the School District as a probationary teacher in the 1973--1974 school year. On May 21, 1975 she received an unsatisfactory supervisory report from her principal and was advised shortly thereafter that she would not be recommended for tenure when her probationary period expired on August 31, 1975. The School District alleges that it complied with the procedural requirements of section 3031 of the Education Law. On July 25, 1975 Ms. Schwab and the Faculty Association filed a grievance alleging that the School District violated the recognition and fair practice caluse, the joint code of ethics clause, the evaluation of probationary teachers clauses, and the final conference clause of the contract. The first three steps in the grievance proceeding were unsuccessful. The Board of Education rejected the grievance on the ground that it involved a denial of tenure and a teacher disciplinary proceeding which were excluded from arbitration by the definition of 'grievance'.
On September 12, 1975 the Faculty Association demanded arbitration. The School District then commenced the present proceeding to stay arbitration; the Faculty Association answered and alleged essentially that a presumptively arbitrable dispute was presented. Special Term dismissed the petition and ordered arbitration finding that the dispute alleged violations of rules regarding 'supervision of teachers' and thus constituted an arbitrable 'grievance' under the contract.
Section 7503(c) of the CPLR provides only limited grounds for staying arbitration. In reviewing applications to stay arbitrations demanded under collective agreements, the following specialized rule has emerged:
'Where a collective bargaining agreement contains an arbitration clause, disputes arising thereunder are presumptively arbitrable in the absence of clear contractual language to the contrary . . . The courts can only stay arbitration in the public employment relations field where the agreement to arbitrate expressly excludes the subject matter contested or where an identifiable public policy prohibits arbitration of the subject matter'.
(Belmont Cent. School Dist. v. Belmont Teachers Assn., 51 A.D.2d 653, 654, 378 N.Y.S.2d 198, 200; accord, Matter of Bd. of Educ. v. Buffalo Council of Supervisors and Administrators (BCSA), 52 A.D.2d 220, 383 N.Y.S.2d 732 (decided May 21, 1976); Matter of Bd. of Educ. of Enlarged City School Dist. of City of Auburn (Auburn Teachers' Assn.), 49 A.D.2d 35, 371 N.Y.S.2d 201). The School District has not articulated a public policy barring arbitration of the present disputes. Thus, the only question presented on these...
To continue reading
Request your trial
-
Three Village Teachers Ass'n, Inc. v. Three Village Cent. School Dist. No. 1
... ... THREE VILLAGE CENTRAL SCHOOL DISTRICT NO. 1, Respondent ... Supreme ... Before HOPKINS, Acting P.J., and MARTUSCELLO, COHALAN and DAMIANI, JJ ... High School Dist. v. Bellmore-Merrick United Secondary Teachers, 39 N.Y.2d 167, 383 N.Y.S.2d ... v. Chautauqua Cent. School Teachers Assn.,41 A.D.2d 47, 341 N.Y.S.2d 690)' (Matter of ng Superintendent of Schools of Liverpool Cent. School Dist. ed Liverpool Faculty Assn.), 53 A.D.2d 239, 246, 385 N.Y.S.2d 879, ... ...
-
United Liverpool Faculty Ass'n by Zalewski v. Board of Ed. of Liverpool Cent. School Dist.
... ... BOARD OF EDUCATION OF the LIVERPOOL CENTRAL SCHOOL DISTRICT, ... Respondent ... In the Matter of the ... recommendations of the building principal and the acting superintendent respecting grievant's tenure were, among ... upon the recommendation of such superintendent of schools, for a probationary period of three years; ... 2. At the ... ...
-
Board of Ed. of West Irondequoit Central School Dist. v. West Irondequoit Teachers Ass'n
... ... Early, ... Superintendent of Schools, Respondents, ... WEST IRONDEQUOIT ... of the issue (CPLR Article 75; Matter of Acting Superintendent, Schools of Liverpool Central ol District v. United Liverpool Faculty Assn., 53 A.D.2d 239, 385 ... ...
-
United Liverpool Faculty Ass'n v. Board of Ed. of Liverpool Central School Dist.
... ... of which, the arbitrator found, the principal went to the superintendent and recommended that Ms. Schwab not be granted tenure. Her name was then ... v. Port Washington Teachers Assn., 45 N.Y.2d 411, 418, 408 N.Y.S.2d 453, 456, 380 N.E.2d 280, 283) ... controversy, contrary to our previous determination (Matter of Acting Superintendent of Schools of Liverpool Cent. School Dist. 53 A.D.2d 239, ... ...