North Bellmore Teachers Ass'n v. Board of Ed. of Union Free School Dist. No. 4

CourtUnited States State Supreme Court (New York)
Citation326 N.Y.S.2d 571,68 Misc.2d 238
Parties, 78 L.R.R.M. (BNA) 3117, 66 Lab.Cas. P 52,692 Application of the NORTH BELLMORE TEACHERS ASSOCIATION, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules in the Nature of Prohibition, v. BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 4, Respondent.
Decision Date15 November 1971

Page 571

326 N.Y.S.2d 571
68 Misc.2d 238, 78 L.R.R.M. (BNA) 3117,
66 Lab.Cas. P 52,692
Petitioner, For a Judgment under Article 78 of the
Civil Practice Law and Rules in the
Nature of Prohibition,
Supreme Court, Special Term, Nassau County, Part I.
Nov. 15, 1971.

Page 572

Friedlander, Gaines, Ruttenberg & Goetz, by Joseph S. Rosenthal, New York City, for petitioner.

Louis J. Lefkowitz, Atty. Gen. of State of New York, by John Q. Driscoll, Albany.

Kimmell & Kimmell, by Leonard S. Kimmell, Mineola, for respondent.

Page 573


[68 Misc.2d 239] BERNARD S. MEYER, Justice.

In this Article 78 proceeding, the petitioner, the exclusive negotiating representative for all non-supervisory professional school personnel employed by respondent Board of Education seeks a judgment prohibiting respondent, sitting pursuant to Civil Service Law, sec. 209(3)(e) (part of the Public Employees' Fair Employment Act) as a legislative body, from holding a hearing to fix the salary schedule and insurance coverage, effective July 1, 1971, for such personnel. The relief sought and the issues presented raise a preliminary question concerning the form of the proceeding. The substantive questions presented by the pleadings are: (1) whether the collective bargaining agreement between the parties requires arbitration rather than the proposed hearing, (2) whether respondent has complied with the requirements of Civil Service Law § 209(3) preliminary to such a hearing, and (3) whether the statute runs afoul of the constitutional requirements of equal protection, due process and free speech. In light of the third argument the court requested the appearance of the Attorney General, Executive Law § 71, and he has appeared in support of the constitutionality of the statute.

The collective bargaining agreement between the parties was entered into on July 1, 1970 for a two year term but provided for reopening and renegotiation of salary schedules and of insurance plans and contributions thereto, to be effective July 1, 1971. The contract also provided for the ultimate handling of grievances, 'defined as any dispute concerning the meaning, interpretation or application of this Agreement,' by arbitration. On or about March 1, 1971, the petitioner gave notice of intent to reopen and negotiate increases in salaries and in insurance benefits. Following an impasse, the New York State Public Employment Relations Board named a mediator and thereafter a fact-finder, who made his report and recommendations on or about August 20, 1971. At a meeting in its executive capacity held on August 24th, the respondent Board voted to reject four of the factfinder's five recommendations. Petitioner received no notice that the recommendations were to be voted on at that meeting. As the legislative body referred to in Civil Service Law § 209(3)(e) the Board then ordered a public hearing to be held on September 2, 1971. On August 31, 1971 petitioners began this proceeding and the September 2nd hearing was stayed pending this decision. The stay is vacated, and for the reasons hereafter stated the proceeding is treated as an action for a declaratory judgment and judgment will be entered declaring that the dispute is not arbitrable, [68 Misc.2d 240] that respondent Board has not violated the statute, and that the statutory provision in question is constitutional.

Page 574

The procedural question arises not from the involvement of the issue of arbitrability, for an order compelling arbitration can be sought either by a special proceeding or by motion in a pending action, CPLR 7503(a). There can, therefore, be no objection to the inclusion of a demand for such relief in an action or proceeding brought for another purpose. The difficulty arises, rather, because what petitioner seeks is (1) to impose a prior restraint upon a legislative function and (2) judgment that Civil Service Law § 209(3)(e) is invalid on constitutional grounds. The classical doctrine is that prohibition does not lie to prevent action by legislative or administrative bodies, People ex rel. Bender v. Milliken, 185 N.Y. 35, 39, 77 N.E. 872, 873; cf. Thomson v. Tracy et al., 60 N.Y. 31, 37; Matter of DeSantis v. Brown, 37 A.D.2d 865, 325 N.Y.S.2d 60 (3d Dept. 10/20/71); Matter of Rushmore v. Lipson, 45 Misc.2d 487, 257 N.Y.S.2d 316, and that an Article 78 proceeding is an inappropriate vehicle to test the constitutionality of a statute, Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 458, 322 N.Y.S.2d 696, 703, 271 N.E.2d 537, 542; Matter of Lakeland Dist. v. Onondaga Auth., 24 N.Y.2d 400, 407, 301 N.Y.S.2d 1, 5, 248 N.E.2d 855, 858, as distinguished from the question whether the statute has been applied in an unconstitutional manner, Matter of Overhill Bldg. Co. v. Delany, supra. CPLR 103(b) authorizes the court to treat the proceeding as an action for declaratory judgment, however, and since all necessary parties are before the court, and in view of the conclusion reached no prior restraint upon legislative action will be imposed, the court will do so rather than relegate the parties to a new action for declaratory judgment brought after completion of the legislative hearing.

Turning now to the first substantive issue, the court holds that fixation of salary and insurance...

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