In re Bd. of Educ. of the Catskill Cent. Sch. Dist.

• Decision Date: 16 July 2015
• Docket Number: 520381
• Parties: In the Matter of the ARBITRATION BETWEEN BOARD OF EDUCATION OF the CATSKILL CENTRAL SCHOOL DISTRICT, Appellant, and Catskill Teachers Association, Respondent, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1287

14 N.Y.S.3d 553

2015 N.Y. Slip Op. 06190

In the Matter of the ARBITRATION BETWEEN BOARD OF EDUCATION OF the CATSKILL CENTRAL SCHOOL DISTRICT, Appellant and Catskill Teachers Association, Respondent, et al., Respondent.

520381

Supreme Court, Appellate Division, Third Department, New York.

July 16, 2015.

Shaw, Perelson, May & Lambert, LLP, Poughkeepsie (Mark C. Rushfield of counsel), for appellant.

Richard E. Casagrande, New York State United Teachers, Latham (Christina F. French of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., ROSE and LYNCH, JJ.

Opinion

GARRY, J.P.

Appeal from an order of the Supreme Court (Tailleur, J.), entered July 30, 2014 in Greene County, which, among other things, denied petitioner's application pursuant to CPLR 7503 to permanently stay arbitration between the parties.

Petitioner and respondent Catskill Teachers Association (hereinafter respondent) are parties to a collective bargaining agreement (hereinafter CBA) that was in effect during the relevant time period. In July and October 2013, petitioner filed grant applications with the State Education Department seeking funding for a universal prekindergarten program pursuant to Education Law § 3602–e. In anticipation of the award of funds, petitioner entered into a contract with a private sector instruction provider to retain the services of a prekindergarten teacher. Respondent thereafter submitted a grievance alleging that petitioner had violated the terms of the CBA by failing to post the position to respondent's members, filling the position with an individual who was not a member of respondent, and failing to seek respondent's consent to do so. Petitioner denied the grievance, and respondent demanded arbitration. Petitioner then made an application to Supreme Court pursuant to CPLR 7503 seeking to stay arbitration, and respondent cross-moved to compel arbitration. The court found the dispute to be arbitrable, denied petitioner's application and granted respondent's cross motion. Petitioner appeals.

Petitioner contends that arbitration of the subject matter of the dispute is barred by Education Law § 3602–e and public policy. Determining whether the subject matter of a dispute is arbitrable involves a two-step inquiry, the first issue being “whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” (Matter of City of Ithaca [Ithaca Paid Fire Fighters Assn., IAFF, Local 737], 29 A.D.3d 1129, 1130, 815 N.Y.S.2d 761 [2006] [internal quotation marks and citations omitted]; see Matter of Union–Endicott Cent. School Dist. [Endicott Teachers' Assn], 59 A.D.3d 799, 800, 872 N.Y.S.2d 753 [2009] ). “[I]n order to overcome the strong [s]tate policy favoring the bargaining of terms and conditions of employment, any implied intention that there not be mandatory negotiation must be plain and clear or inescapably implicit in the statute” (Matter of Webster Cent. School Dist. v. Public Empl. Relations Bd. of State of N.Y., 75 N.Y.2d 619, 627, 555 N.Y.S.2d 245, 554 N.E.2d 886 [1990] [internal quotations marks and citations omitted] ).

Under the statutory scheme at issue, a “pre[ ]kindergarten program plan” is defined as a plan “designed to effectively serve eligible children directly through the school district or through collaborative efforts between the school district and an eligible agency or agencies” (Education Law § 3602–e [1 ][d] [emphasis added] ). Petitioner's argument rests upon Education Law § 3602–e (5)(d), which states that “[n]otwithstanding any other provision of law, [a] school district[ ] shall be authorized to enter any contractual or other arrangements necessary to implement the district's prekindergarten plan.” Contrary to petitioner's contention, this language does not suggest a legislative intent that school districts be given wholly unfettered freedom to disavow existing, bargained-for contractual agreements for the purpose of entering into contracts with outside agencies for prekindergarten instructional services. A more natural reading of Education Law § 3602–e supports a finding that the statute permits school districts to enter into such contracts, without in any way necessarily affecting the enforceability of a bargained-for agreement to secure such services through a CBA (compare Matter of Cohoes City School Dist. v. Cohoes Teachers Assn., 40 N.Y.2d 774, 777, 390 N.Y.S.2d 53, 358 N.E.2d 878 [1976] ).¹ The soundness of this interpretation is apparent when read in conjunction with Education Law § 3602–e (9)(b), which requires that grants be awarded with a preference for those programs that are “strong collaborative arrangements which maximize, to the extent possible, the utilization of existing resources of the school district, eligible agencies and the community” (emphasis added). This suggests a recognition by the Legislature that there may be circumstances in which a school district faces restrictions in its ability to contract with outside agencies. We find nothing else in the statute that suggests any intention by the Legislature to “prohibit, in an absolute sense” the arbitrability of the subject matter of respondent's grievance (Matter of Sprinzen [Nomberg], 46 N.Y.2d 623, 631, 415 N.Y.S.2d 974, 389 N.E.2d 456 [1979] ).

Moreover, even were we to accept petitioner's argument that the Legislature intended to free school districts from such restrictions contained in a CBA, we would nonetheless find respondent's grievance to be arbitrable. “A stay of arbitration on policy grounds is premature and unjustified, even though the remedy sought may not, due to policy concerns, be enforceable, where it is possible that the arbitrator may use his [or her] broad powers to fashion a remedy adequately narrowed to encompass only procedural guarantees” (Matter of Enlarged City School Dist. of Troy [Troy Teachers Assn.], 69 N.Y.2d 905, 906, 516 N.Y.S.2d 195, 508 N.E.2d 930 [1987] [internal quotation marks and citation omitted]; see Matter of Board of Educ., Hunter–Tannersville Cent. School Dist. [McGinnis], 100 A.D.2d 330, 334, 475 N.Y.S.2d 512 [1984] ). Here, respondent's grievance alleges, among other things, that petitioner failed to abide by a notice of vacancy requirement in the CBA providing that “[n]otice of all vacancies and newly created positions will be prominently posted as far in advance as possible.” Given that a remedy solely...