Board of Ed., Great Neck Union Free School Dist. v. Areman

• Citation: 41 N.Y.2d 527,394 N.Y.S.2d 143,362 N.E.2d 943
• Parties: , 362 N.E.2d 943, 95 L.R.R.M. (BNA) 2165 BOARD OF EDUCATION, GREAT NECK UNION FREE SCHOOL DISTRICT, Appellant, v. Zita J. AREMAN, as President of the Great Neck Teachers' Association, Respondent.
• Decision Date: 05 April 1977
• Court: New York Court of Appeals

Page 143

394 N.Y.S.2d 143

41 N.Y.2d 527, 362 N.E.2d 943, 95

L.R.R.M. (BNA) 2165

BOARD OF EDUCATION, GREAT NECK UNION FREE SCHOOL DISTRICT, Appellant, v. Zita J. AREMAN, as President of the Great Neck Teachers'

Association, Respondent.

Court of Appeals of New York.

April 5, 1977.

Jerome H. Ehrlich and Charles D. Maurer, Garden City, for appellant.

Paul Henry Janis and Eugene M. Kaufman, New York City, for respondent.

COOKE, Judge.

The Board of Education of Great Neck Union Free School District and the Great Neck Teachers' Association, the latter being the negotiating agent for all teachers employed by the board, engaged in collective bargaining which culminated in a three-year agreement dated July 1, 1973. Article 32 of that agreement, entitled "personnel files", provided in subdivision A that a teacher's official personnel file was to include the following materials:

"1. Application

"2. Official statement of courses taken and degrees granted

"3. Certificate

"4. Military discharge paper (if any) and pertinent correspondence

"5. Requests for salary re-classification

"6. Requests for leave

"7. Requests for transfer or promotion

"8. Recommendations from previous employers

"9. Principal's evaluations made subsequent to July 1, 1968

10. All commendations

"11. Communications relating to service with professional organizations

"12. Reports of disciplinary action taken."

Access to that file was to be governed by subdivision E which provided that each faculty member's file shall be available for inspection only to:

"1. The Superintendent

"2. The Assistant Superintendents

"3. The Director of Elementary or Secondary Instruction or Pupil Personnel Services, depending on which one of these is appropriate to the particular faculty member

"4. The Director of Personnel

"5. The Building Principal

"6. The faculty member whose file it is."

Article 18 of the agreement contained provision for the resolution of grievances by arbitration, the term "grievance" being defined therein as "any claimed violation, misinterpretation or inequitable application of existing laws, Board policies, rules, procedures, regulations, administrative orders or rules governing conditions of professional service to the extent provided by law; or the provisions of this agreement."

A demand for arbitration, dated October 4, 1974, was served upon the board. In its demand, the Teachers' Association asserted that the board "violated Articles 1, 3 C7, 32 et al of the 1973-76 collective bargaining agreement" such violation occurring as a result of: (A.) The examination by Board of Education members, of teachers personnel files; and (B.) The adoption, by the Board of Education, of the following resolution: "Resolved, that the Board of Education authorizes, empowers and directs the Superintendent of Schools and/or other members of the school administration having jurisdiction thereof to make available to said Board or any member of the Board any and all written, formal evaluations and observation reports of all school personnel for the examination of said Board."

The remedy sought was fivefold: (1) rescission, by the Board of Education, of resolution quoted above; (2) destruction of all copies of items in teachers' personnel files currently in possession of any member of the Board of Education; (3) a save-harmless guarantee for all teachers whose personnel files were reviewed by members of the Board of Education; (4) immediate and complete termination of examination of teachers' personnel files by Board of Education members; and (5) any other remedy the arbitrator may deem appropriate.

The theory underlying the association's demand was that the Board of Education, not being listed in subdivision E of article 32, does not have the right to inspect teacher personnel files and, having breached the agreement by inspection of such files and by adoption of the afore-mentioned resolution, may be called to account before the arbitrator.

An application to stay arbitration was made by the Board of Education and granted by Special Term. Accepting the board's position, the court reasoned that while our State recognizes and respects agreements to arbitrate, citing Matter of Exercycle Corp. (Maratta), 9 N.Y.2d 329, 214 N.Y.S.2d 353, 174 N.E.2d 463, an exception to that policy exists where the performance which is the subject of the demand for arbitration is prohibited by statute. The court viewed the instant case as falling within the ambit of that exception. Reliance was not placed upon a particular prohibiting statute, but rather upon the nondelegable statutory duty of the board to employ qualified teachers (Education Law, § 1709). Since the ultimate obligation or responsibility is the board's, "it follows", wrote Special Term, "that its members have an inherent right to review the records and files of those whom they employ. Indeed, under section 3010 of the Education Law, members of a board of education might well subject themselves to criminal liability by failing to assure themselves of the qualifications of teachers whose employment they approve." (80 Misc.2d 659, 662, 363 N.Y.S.2d 437, 441.) Thus, arbitration was permanently stayed, the court holding the dispute not arbitrable.

At the Appellate Division, Special Term's order was reversed. In the appellate court's view, the Education Law presented no bar to a collective bargaining agreement limiting a board of education's right to inspect teacher personnel files. Whether the agreement did so limit the board's right, was, the court held, a question for the arbitrator.

The Appellate Division's reversal vests this court with jurisdiction and places before us the question of whether a board of education has the freedom to bargain away its right to inspect teacher personnel files. Numerous factors considered, our answer to this question is no. Such decision we ground not merely upon the several statutory provisions yet to be discussed, but, additionally, upon a base of public policy.

To begin, we note that this is but another variant in a line of recent cases wherein the board of education of a school district, be it union free, city or other, has entered into a collective bargaining agreement with the recognized organization representing the district's teachers and then, later, raises questions as to its power to agree and bind itself to certain of the contract provisions (see, e.g., Board of Educ. v. Associated Teachers of Huntington, 30 N.Y.2d 122, 331 N.Y.S.2d 17, 282 N.E.2d 109 (various economic benefits and arbitration of disputes concerning disciplinary action); Syracuse Teachers Ass'n v. Board of Educ., 35 N.Y.2d 743, 361 N.Y.S.2d 912, 320 N.E.2d 646 (establishment of a "Sick Leave Bank"); Matter of Susquehanna Val. Cent. School Dist. at Conklin (Susquehanna Val. Teachers' Ass'n), 37 N.Y.2d 614, 376 N.Y.S.2d 427, 339 N.E.2d 132 (staff size); Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v. Nyquist, 38 N.Y.2d 137, 379 N.Y.S.2d 10, 341 N.E.2d 532 (transfer credits); Matter of Cohoes City School Dist. v. Cohoes Teachers Ass'n, 40 N.Y.2d 774, 390 N.Y.S.2d 53, 358 N.E.2d 878 (tenure determinations); cf. Matter of West Irondequoit Teachers Ass'n v. Helsby, 35 N.Y.2d 46, 358 N.Y.S.2d 720, 315 N.E.2d 775 (class size)).

In the earliest of these cases, Board of Educ. v. Associated Teachers of Huntington, 30 N.Y.2d 122, 130, 331 N.Y.S.2d 17, 23, 282 N.E.2d 109, 113, supra, we recognized that absent a statutory provision expressly or impliedly prohibiting collective bargaining as to a particular term or condition of employment, boards of education are presumed to possess the broad powers needed to negotiate with employees. In Syracuse Teachers Ass'n v. Board of Educ., 35 N.Y.2d 743, 744, 361 N.Y.S.2d 912, 320 N.E.2d 646, supra, this court construed the Huntington language "to mean that collective bargaining under the Taylor Law (Civil Service Law, § 204, subd. 1) has broad scope with respect to the terms and conditions of employment, limited by plain and clear, rather than express, prohibitions in the statute or decisional law (see, generally Matter of West Irondequoit Teachers' Ass'n v. Helsby, 35 N.Y.2d 46, 358 N.Y.S.2d 720, 315 N.E.2d 775, citing and discussing the Huntington case)." Further clarification and elucidation of the limitation or restriction is to be found in Matter of Susquehanna Val. Cent. School Dist. at Conklin (Susquehanna Val. Teachers' Ass'n), 37 N.Y.2d 614, 376 N.Y.S.2d 427, 339 N.E.2d 132, supra. There, public policy was presented as a possible restriction independent of statute. The court explained: "Public policy, whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may also restrict the freedom to arbitrate" (37 N.Y.2d at pp. 616-617, 376 N.Y.S.2d at p. 429, 339 N.E.2d at p. 133). In Matter of Cohoes City School Dist. v. Cohoes Teachers Ass'n, 40 N.Y.2d 774, 390 N.Y.S.2d 53, 358 N.E.2d 878, supra, the majority of this court held unenforceable a contract provision which purported to prohibit termination of nontenured teachers at the end of the probationary period without just cause. The court identified the several sections of the Education Law which vest in the board of education the authority to make tenure decisions (Education Law, §§ 2509, 2573, 3012, 3013, 6206) and recognized that, as such responsibility cannot be delegated or abnegated, it is "beyond the power of the board to surrender this responsibility as part of any agreement reached in consequence of collective bargaining" (40 N.Y.2d 774, 778, 390 N.Y.S.2d 53, 55, 358 N.E.2d 878, 880). While the court reiterated the general rule that any matter in controversy between a board of education and its teachers may be the subject of collective bargaining, it relied upon the limitation placed upon that rule by public policy, implicit there in the several sections of the Education Law.

Different from private matters where freedom to contract is...