2003 N.Y. LEXIS 3947,*;1 N.Y.3d 72;
801 N.E.2d 827;769 N.Y.S.2d 451
In the Matter of United Federation of Teachers, Local 2, AFT, AFL-CIO,
Appellant, v Board of Education of the City School District of the City
of New York, Respondent.
No. 134
COURT OF APPEALS OF NEW YORK
1 N.Y.3d 72; 801 N.E.2d 827; 769 N.Y.S.2d 451; 2003 N.Y. LEXIS 3947;
174 L.R.R.M. 2589
October 21, 2003, Argued
November 20, 2003, Decided
PRIOR HISTORY:
[*1] Appeal, by permission of the Court of Appeals, from an
order of the Appellate Division of the Supreme Court in the First
Judicial Department, entered July 18, 2002. The Appellate Division (1)
reversed, on the law, an order and judgment (one paper) of the Supreme
Court, New York County (Bruce Allen, J.), which had granted
petitioner's motion to confirm, and denied respondent's cross motion to
vacate, an arbitration award, (2) denied petitioner's motion to confirm
the award, and (3) granted respondent's cross motion to vacate the
award.
Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v. Board of
Educ. of City School Dist. of City of N.Y., 298 A.D.2d 60, 746 N.Y.S.2d
7, 2002 N.Y. App. Div. LEXIS 7476 (1st Dept 2002), reversed.
DISPOSITION:
Order of the Appellate Division reversed; order and judgment of the
trial court reinstated.
COUNSEL: Stroock & Stroock & Lavan LLP, New York
City (Charles G. Moerdler, Alan M. Klinger and Faith A. Kaminsky of
counsel), James R. Sandner, Lena M. Ackerman and Carol L. Gerstl, for
appellant. I. The Appellate Division erred in vacating the arbitration
award on public policy grounds. (Matter of Jaidan Indus. v M.A.
Angeliades, Inc., 97 N.Y.2d 659, 763 N.E.2d 1142, 738 N.Y.S.2d 1;
Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue
Union Free School Dist., 45 N.Y.2d 898, 383 N.E.2d 553, 411 N.Y.S.2d 1;
Matter of Middle Country Teachers Assn. v Middle Country Cent. School
Dist., 231 A.D.2d 570, 647 N.Y.S.2d 286; 89 N.Y.2d 806, 677 N.E.2d 289,
654 N.Y.S.2d 717; Matter of New York City Tr. Auth. v Transport Workers
Union of Am., Local 100, AFL-CIO, 99 N.Y.2d 1, 780 N.E.2d 490, 750
N.Y.S.2d 805; Matter of Three Vil. Teachers' Assn. v Three Vil. Cent.
School Dist., 128 A.D.2d 626, 512 N.Y.S.2d 878; 70 N.Y.2d 608, 515
N.E.2d 909, 521 N.Y.S.2d 224; Matter of Riverhead Cent. School Dist. v
Riverhead Cent. Faculty Assn., 140 A.D.2d 526, 528 N.Y.S.2d 611; 72
N.Y.2d 810, 531 N.E.2d 658, 534 N.Y.S.2d 938; Matter of Board of Educ.
of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 N.Y.2d
33, 574 N.E.2d 1031, 571 N.Y.S.2d 425; City of New York v Uniformed
Firefighters Assn., Local 94, IAFF, AFL-CIO, 58 N.Y.2d 957, 447 N.E.2d
69, 460 N.Y.S.2d 521.) II. The Appellate Division erroneously
substituted its own judgment for that of the arbitrator. (United
Steelworkers of Am. v Warrior & Gulf Nav. Co., 363 U.S. 574, 4 L.
Ed. 2d 1409, 80 S. Ct. 1347; Matter of Board of Educ., Commack Union
Free School Dist. v Ambach, 70 N.Y.2d 501, 517 N.E.2d 509, 522 N.Y.S.2d
831; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers
Fedn. of Teachers, 40 N.Y.2d 268, 353 N.E.2d 569, 386 N.Y.S.2d 657;
Matter of New York City Tr. Auth. v Transport Workers of Am., Local
100, AFL-CIO, 99 N.Y.2d 1, 780 N.E.2d 490, 750 N.Y.S.2d 805; Matter of
Sprinzen, 46 N.Y.2d 623, 389 N.E.2d 456, 415 N.Y.S.2d 974; Board of
Educ., Bellmore-Merrick Cent. High School Dist. v Bellmore-Merrick
United Secondary Teachers, 39 N.Y.2d 167, 347 N.E.2d 603, 383 N.Y.S.2d
242; Board of Educ. of Union Free School Dist. No. 3 v Associated
Teachers of Huntington, 30 N.Y.2d 122, 282 N.E.2d 109, 331 N.Y.S.2d 17;
Associated Teachers of Huntington v Board of Educ. of Union Free School
Dist. No. 3, 33 N.Y.2d 229, 306 N.E.2d 791, 351 N.Y.S.2d 670.) III. The
Appellate Division's holding that the arbitrator exceeded her authority
is merely a determination that the arbitrator came to an erroneous
conclusion and, as such, is an improper basis for vacating the award.
(Maross Constr. v Central N.Y. Regional Transp. Auth., 66 N.Y.2d 341,
488 N.E.2d 67, 497 N.Y.S.2d 321.)
Michael A. Cardozo, Corporation Counsel, New York City (Scott Shorr and
Barry P. Schwartz of counsel), for respondent. I. Nothing in the United
Federation of Teachers' brief erodes the strong public policy, which
the Appellate Division properly applied, barring arbitral interference
with the Board of Education's assessment of teacher qualifications.
(Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 N.Y.2d
774, 358 N.E.2d 878, 390 N.Y.S.2d 53; Honeoye Falls-Lima Cent. School
Dist. v Honeoye Falls-Lima Educ. Assn., 49 N.Y.2d 732, 402 N.E.2d 1165,
426 N.Y.S.2d 263; Matter of Meehan v Nassau Community Coll., 152 A.D.2d
313, 548 N.Y.S.2d 741; Three Vil. Teachers' Assn. v Three Vil. Cent.
School Dist., 128 A.D.2d 626, 512 N.Y.S.2d 878; 70 N.Y.2d 608, 515
N.E.2d 909, 521 N.Y.S.2d 224; Matter of Board of Educ. of Arlington
Cent. School Dist. v Arlington Teachers Assn., 78 N.Y.2d 33, 574 N.E.2d
1031, 571 N.Y.S.2d 425; Matter of Riverhead Cent. School Dist. v
Riverhead Cent. Faculty Assn., 140 A.D.2d 526, 528 N.Y.S.2d 611; 72
N.Y.2d 810, 531 N.E.2d 658, 534 N.Y.S.2d 938; Matter of Monroe-Woodbury
Cent. School Dist. v Monroe-Woodbury Teachers Assn., 105 A.D.2d 786,
481 N.Y.S.2d 731; 65 N.Y.2d 604, 482 N.E.2d 1229; Matter of City of New
York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95
N.Y.2d 273, 739 N.E.2d 719, 716 N.Y.S.2d 353; Matter of New York City
Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99
N.Y.2d 1, 780 N.E.2d 490, 750 N.Y.S.2d 805; Matter of Port Jefferson
Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45
N.Y.2d 898, 383 N.E.2d 553, 411 N.Y.S.2d 1.) II. United Federation of
Teachers has failed to undermine the Appellate Division's determination
that the arbitrator violated public policy by replacing the Board of
Education's teacher selection decision with her own. (Three Vil.
Teachers' Assn. v Three Vil. Cent. School Dist., 128 A.D.2d 626, 512
N.Y.S.2d 878; Matter of Riverhead Cent. School Dist. v Riverhead Cent.
Faculty Assn., 140 A.D.2d 526, 528 N.Y.S.2d 611; Matter of Sprinzen, 46
N.Y.2d 623, 389 N.E.2d 456, 415 N.Y.S.2d 974; Maross Constr. v Central
N.Y. Regional Transp. Auth., 66 N.Y.2d 341, 488 N.E.2d 67, 497 N.Y.S.2d
321; Board of Educ., Bellmore-Merrick Cent. High School Dist. v
Bellmore-Merrick United Secondary Teachers, 39 N.Y.2d 167, 347 N.E.2d
603, 383 N.Y.S.2d 242.) III. United Federation of Teachers ignores the
Appellate Division's rationale for concluding that the arbitrator also
exceeded an express limitation on her authority. (Sweeney v Herman
Mgt., 85 A.D.2d 34, 447 N.Y.S.2d 164; Board of Educ. of Lakeland Cent.
School Dist. of Shrub Oak v Barni, 49 N.Y.2d 311, 401 N.E.2d 912, 425
N.Y.S.2d 554; Kings Park Classroom Teachers Assn. v Kings Park Cent.
School Dist., 100 A.D.2d 929, 474 N.Y.S.2d 816; Matter of City of New
York v Davis, 146 A.D.2d 480, 536 N.Y.S.2d 757; Matter of New York City
Tr. Auth. v Patrolmen's Benevolent Assn. of N.Y. City Tr. Police Dept.,
129 A.D.2d 708, 514 N.Y.S.2d 470; 70 N.Y.2d 719, 513 N.E.2d 1301, 519
N.Y.S.2d 640.)
JUDGES: Opinion by Judge Read. Chief Judge Kaye and Judges
G.B. Smith, Ciparick, Rosenblatt and Graffeo concur.
OPINION BY: READ
OPINION
Read, J.
In this appeal we are asked whether an arbitrator acted properly when
she determined that respondent Board of Education of the City of New
York (the Board) arbitrarily selected teachers for an after-school
reading program, and ordered the Board to provide a position to a
qualified applicant whom the principal had passed over. We conclude
that the award did not violate public policy and the arbitrator did not
exceed her authority under the collective bargaining agreement.
I.
In September 1998 New York City School District 26 posted an
announcement for anticipated vacancies in the position of "Per Session
Teacher--Project Read After-School Program" in its elementary schools.
The announcement set forth selection criteria, including a preference
for teachers holding "Early Childhood/Reading License[s]."
Linda Feil applied for this position. While she did not hold either of
the preferred [*2] licenses, she did have a "common branch"
license and 26 years of primary school teaching experience, most
recently as a third-grade teacher at PS 173. In addition, she had
taught as a substitute teacher in Project Read and another reading
program at PS 173.
The principal of PS 173 filled six openings in Project Read from the
pool of applicants who responded to the posting. He did not select
Feil, instead offering her work as a "primary substitute." He also
advised her that other district schools had inquired "if any of our
excellent teachers would be available to teach Project Read in those
schools." He asked her to let him know right away if she was interested
in this possibility. Of the six teachers whom the principal selected
for a position in Project Read, two had the preferred licenses and less
seniority than Feil. The remaining four did not have the preferred
licenses; two had more seniority than Feil, two had less. The parties
do not dispute that the six selected teachers are qualified; the
parties do not dispute that Feil is qualified.
Feil's union, appellant United Federation of Teachers (UFT), filed a
grievance in Feil's behalf under articles fifteen and twenty of the
collective [*3] bargaining agreement (CBA). Article
twenty-two of the CBA prescribes a four-stage grievance process,
culminating in arbitration if the grievance is not otherwise resolved.
During a Step 2 grievance conference, UFT argued that Feil had been
improperly denied a position in Project Read because she was qualified
and more senior than two of the successful applicants. The principal
replied that while he believed that Feil was a satisfactory teacher,
the teachers he selected had, in his judgment and based on their
applications, a greater level of specific teaching experience, which he
detailed. He acknowledged that he took into consideration his personal
observations of the various applicants in the classroom during his 15
years as principal. The deputy superintendent denied the grievance. He
found that while satisfactory teaching and seniority were compelling
selection criteria, they were not required by the posting and did not
control the selection process for Project Read, a specialized program.
After a Step 3 hearing, the Chancellor's representative found that the
applicants were not equally qualified for the positions, and denied the
grievance. UFT filed a demand for arbitration. [*4] The
Board did not move to stay the arbitration, and so the grievance was
submitted to an arbitrator jointly selected by UFT and the Board
pursuant to the CBA.
The arbitrator accepted UFT's formulation of the issue:
"Did the Board violate Articles Fifteen and Twenty of the 1995-2000
collective bargaining agreement when it denied Grievant Linda Feil, a
teacher at P.S. 173, the per session position of After-School Project
Teacher at P.S. 173? If so, what shall be the remedy?" The arbitrator
rejected UFT's argument that the Project Read selection process was
governed by the seniority provisions in article fifteen of the CBA
entitled "Rates of Pay and Working Conditions of Per Session Teachers."
Instead, she found that the matter involved the application of article
twenty of the CBA, entitled "Matters Not Covered." n1
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Article twenty provides that
"[w]ith respect to matters not covered by this Agreement which are
proper subjects for collective bargaining, the Board agrees that it
will make no changes without appropriate prior consultation and
negotiation with the Union….
"All existing determinations, authorizations, by-laws, regulations,
rules, rulings, resolutions, certifications, orders, directives, and
other actions, made, issued or entered into by the Board of Education
governing or affecting salary and working conditions of the employees
in the bargaining unit shall continue in force during the term of this
Agreement, except insofar as change is commanded by law."
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[*5] The arbitrator also found that while the CBA contained
no selection criteria for Project Read, "[t]he selection of teachers
for positions in programs which are not covered by the Agreement [is]
governed by managerial discretion." The arbitrator determined that her
power to decide whether the Board's exercise of this discretion was
arbitrary or capricious derived from article twenty-two (C) of the CBA.
n2
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Article twenty-two provides that
"[g]rievances involving the exercise of Board discretion under any term
of this Agreement may be submitted to arbitration to determine whether
the provision was disregarded or applied in a discriminatory or
arbitrary or capricious manner so as to constitute an abuse of
discretion . . . .
"The arbitrator shall limit his decision strictly to the application
and interpretation of the provisions of this Agreement and he shall be
without power or authority to make any decision: . . .
"(2) Involving Board discretion under the provisions of this Agreement,
… except that the arbitrator may decide in a particular case whether
the provision was disregarded or applied in a discriminatory or
arbitrary or capricious manner so as to constitute an abuse of
discretion, namely whether the challenged judgment was based upon facts
which justifiably could lead to the conclusion as opposed to merely
capricious or whimsical preferences or the absence of supporting
factual reasons."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*6] The arbitrator emphasized that Feil was well qualified
for the position, and had more seniority than two of the teachers who
were selected for the program. She recited testimony from another
teacher who had been rejected for a position in Project Read the
previous year because she was the most junior applicant. She
discredited the principal's testimony that the preferred license was a
governing factor because four of the successful applicants did not hold
this license. She found that there was no documentary evidence
supporting the principal's position that the successful applicants were
better qualified for the positions than Feil, and concluded that the
"selection process was arbitrary in nature."
The award, issued on August 9, 1999, found that the Board violated
article twenty of the CBA by acting in an arbitrary manner when
selecting teachers for positions in Project Read. The arbitrator
directed the Board to place Feil in Project Read at PS 173 for the
1999-2000 school year, and to award her back pay.
The Board appointed Feil to the position, but resisted the back pay
award. Pursuant to CPLR article 75, UFT moved in Supreme Court to
confirm the award. The Board cross-moved to [*7] vacate
under CPLR 7511 (b) (1) (iii), arguing that the arbitrator exceeded her
authority. Supreme Court confirmed the award and denied the Board's
cross motion. The Appellate Division unanimously reversed, vacating the
award and holding that "this award violates public policy by
impermissibly infringing on the nondelegable responsibility of the
public school system to maintain educational standards" (298 A.D.2d 60,
61-62, 746 N.Y.S.2d 7 [1st Dept 2002]). As an alternative basis for
reversal, the Appellate Division found that the award "exceeded the
arbitrator's power" under the CBA (id. at 62).
II.
[1] We begin our analysis by determining which of the parties'
arguments are subject to our review. We conclude, as the Appellate
Division did, that by failing to move to stay and participating in the
arbitration, the Board waived its right to seek vacatur of the award on
the basis that the parties did not agree to arbitrate disputes arising
out of Project Read. We further conclude that the Board's actions did
not forfeit its right to seek vacatur of the award on public policy
grounds.
The role of public policy in restricting an arbitrator's power to
resolve disputes arises [*8] at two distinct points on the
arbitration continuum. It first appears as a ground for obtaining a
stay of arbitration when a party challenges the arbitrability of a
dispute. It reappears as a ground for vacating the award as being made
in excess of the arbitrator's powers.
In Matter of City of Johnstown (Johnstown Police Benevolent Assn.) (99
N.Y.2d 273, 784 N.E.2d 1158, 755 N.Y.S.2d 49 [2002]), we stated a
two-part test for determining the arbitrability of a dispute: the
"did-they-agree-to-arbitrate" prong, which requires that we examine the
agreement to determine what issues the parties agreed to submit to
arbitration; and the "may-they-arbitrate" prong, which asks "whether
there is any statutory, constitutional or public policy prohibition
against arbitration of the grievance" (99 N.Y.2d at 278 [citations
omitted]).
Because arbitrability is a threshold question going to the arbitrator's
power to resolve the dispute, a party can seek judicial intervention to
determine whether the dispute is arbitrable before consenting to
arbitration Moreover, the CPLR requires that in order to raise the
"did-they-agree-to-arbitrate" prong of arbitrability in a motion to
vacate, a party must [*9] move to stay before participating
in arbitration (compare CPLR 7511 [b] [1] with CPLR 7511 [b] [2]). Of
course, a party may choose not to move to stay arbitration for a
variety of legitimate economic or tactical reasons. But with
forbearance comes risk: a party that participates in the arbitration
may not later seek to vacate the award by claiming it never agreed to
arbitrate the dispute in the first place (see Rochester City School
Dist. v Rochester Teachers Assn., 41 N.Y.2d 578, 583, 394 N.Y.S.2d 179,
362 N.E.2d 977 [1977]).
By contrast, a party is not required to raise the "may-they-arbitrate"
prong on a motion to stay, and may later seek to vacate an award as
violative of public policy. Indeed, while public policy may be raised
on a motion to stay, it can also be raised for the first time on a
motion to vacate (see Hirsch v Hirsch, 37 N.Y.2d 312, 315, 372 N.Y.S.2d
71, 333 N.E.2d 371 [1975] ["(A) challenge to the arbitrability of an
issue on public policy grounds may be made either on an application for
a stay of arbitration . . . (or) on a motion to vacate the award"
(citations [*10] omitted)]; see also Matter of
Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90
N.Y.2d 364, 373, 683 N.E.2d 733, 660 N.Y.S.2d 827 [1997]).
We next consider whether the award violates public policy and whether
the arbitrator exceeded her powers under the CBA.
III.
An arbitration award may be vacated on three narrow grounds: "it
violates a strong public policy, is irrational, or clearly exceeds a
specifically enumerated limitation on the arbitrator's power" (Matter
of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers
Assn., 78 N.Y.2d 33, 37, 571 N.Y.S.2d 425, 574 N.E.2d 1031 [1991]
[citations omitted]). Only the public policy and enumerated powers
grounds are disputed here.
As we recently stated, the scope of the public policy exception to an
arbitrator's power to resolve disputes is extremely narrow (see Matter
of New York City Tr. Auth. v Transport Workers Union of Am., Local 100,
AFL-CIO, 99 N.Y.2d 1, 6-7, 750 N.Y.S.2d 805, 780 N.E.2d 490 [2002]
["(J)udicial intervention on public policy grounds constitutes a narrow
exception to the otherwise broad power of parties to agree to arbitrate
all of the disputes arising [*11] out of their juridical
relationships, and the correlative, expansive power of arbitrators to
fashion fair determinations of the parties' rights and remedies"]). n3
Moreover, "[j]udicial restraint under the public policy exception is
particularly appropriate in arbitrations pursuant to public employment
collective bargaining agreements" (id. at 7).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3
We note that our decision in Transport Workers postdates the Appellate
Division's decision here.
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In Transport Workers, we established a two-prong test for determining
whether an arbitration award violates public policy. First, where a
court can conclude "without engaging in any extended factfinding or
legal analysis" that a law "prohibit[s], in an absolute sense, [the]
particular matters [to be] decided . . . by [arbitration]" (99 N.Y.2d
at 8, 9 [citations and emphasis omitted]), an arbitrator cannot act.
Second, an arbitrator cannot issue an award where "the award itself
'violate[s] a well-defined constitutional, statutory or common law of
this State'" [*12] (id. at 11 [citation omitted]).
Transport Workers spoke to whether two awards should be vacated on
public policy grounds because they improperly infringed on the
employer's statutory duty "[t]o exercise all requisite and necessary
authority to manage, control and direct the maintenance and operation
of transit facilities . . . for the convenience and safety of the
public" (99 N.Y.2d at 8, quoting Public Authorities Law § 1204
[15]). We upheld the awards, finding that Public Authorities Law §
1204 (15) contained only a general responsibility that did not prohibit
delegation of the duty "in an absolute sense" (99 N.Y.2d at 9), and
that no other well-defined law or policy barred the awards.
Citing Matter of Cohoes City School Dist. v Cohoes Teachers Assn. (40
N.Y.2d 774, 390 N.Y.S.2d 53, 358 N.E.2d 878 [1976]), Matter of Candor
Cent. School Dist. (Candor Teachers Assn.) (42 N.Y.2d 266, 366 N.E.2d
826, 397 N.Y.S.2d 737 [1977]) and Honeoye Falls-Lima Cent. School Dist.
v Honeoye Falls-Lima Educ. Assn. (49 N.Y.2d 732, 426 N.Y.S.2d 263, 402
N.E.2d 1165 [1980]), the Board [*13] argues that this award
should be vacated because public policy prohibits it from bargaining
away its vested responsibility to determine if a candidate is qualified
for a teaching position. We have never held, however, that an award
violates public policy if it affects teacher qualifications (see Matter
of Enlarged City School Dist. of Troy [Troy Teachers Assn.], 69 N.Y.2d
905, 907, 508 N.E.2d 930, 516 N.Y.S.2d 195 [1987] ["Even assuming that
the School District must remain the ultimate judge of an applicant's
qualifications . . . " [emphasis added)]). Moreover, even if we had,
this "policy" is not triggered by the facts here, as the award did not
force the Board to hire or select a non-qualified candidate for a
teaching position. Rather, the award overruled the Board's decision not
to select a particular qualified candidate where the arbitrator found
the selection process arbitrary and capricious (see Matter of Middle
Country Teachers Assn. v Middle Country Cent. School Dist., 231 A.D.2d
570, 572, 647 N.Y.S.2d 286 [2d Dept 1996], lv denied 89 N.Y.2d 806, 677
N.E.2d 289, 654 N.Y.S.2d 717 [1997] [declining to vacate award in favor
of grievant as against public policy where grievant, the
[*14] "weakest qualified applicant," was nonetheless qualified]).
The Board further relies on Honeoye for the principle that public
policy prohibits a school board from "surrender[ing] through collective
bargaining a responsibility vested in the board in the interest of
maintaining adequate standards in the classrooms" (49 N.Y.2d at 734
[emphasis added]). We have never held, however, that the interest of
"maintaining adequate standards" is, standing alone, sufficient to
vacate an award as violative of public policy (see Cohoes City School
Dist., 40 N.Y.2d at 775-778 [public policy bars delegation of tenure
decisions]; Candor Cent School Dist, 42 N.Y.2d at 271 [public policy
bars delegation of right to terminate a probationary appointment at the
close of the probationary period]; Honeoye, 49 N.Y.2d at 733 [public
policy bars delegation of responsibility for implementing layoffs]).
This maintenance-of-adequate-standards principle is akin to the statute
we reviewed in Transport Workers. It is a general responsibility and
does not "prohibit, in an absolute sense," an arbitrator from reviewing
a school's selection [*15] from among qualified candidates
for an after-school position. It is only when the interest in
maintaining adequate standards is attached to a well-defined law that
public policy is implicated. The Board points to no such law applicable
to the decision made here, and so cannot meet the second prong of the
Transport Workers test.
Next, Matter of Three Vil. Teachers' Assn. v Three Vil. Cent. School
Dist. (128 A.D.2d 626, 512 N.Y.S.2d 878 [2d Dept 1987], lv denied 70
N.Y.2d 608, 515 N.E.2d 909, 521 N.Y.S.2d 224 [1987]), relied on by the
Appellate Division below, does not control the outcome here. In Three
Village, the court found that the "school district's ultimate
responsibility to determine the qualifications required and preferred
for a particular teaching position . . . and to determine whether a
prospective applicant is possessed of those qualifications is a
responsibility of the type that may not be bargained away, as it is
central to the maintenance of adequate standards in the classroom" (128
A.D.2d at 627 [citation omitted]).
Importantly, the Three Village Court found that the award violated
Education Law § 2573 (9), which [*16] provides that no
teacher "shall be appointed to the teaching force of a city who does
not possess qualifications required under this chapter and under the
regulations prescribed by the commissioner of education." Here, the
award does not impinge on the school's responsibility to appoint
qualified teachers to positions in the public schools, nor is Education
Law § 2573 (9) even applicable. Three Village also involved a
"past practice" that "permitted the school district a degree of
discretion" in determining teacher qualifications (128 A.D.2d at 627).
n4
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The other cases relied on by the Appellate Division are also
distinguishable. Matter of Riverhead Cent. School Dist. of Towns of
Riverhead, Southhampton & Brookhaven v Riverhead Cent. Faculty
Assn. (140 A.D.2d 526, 528 N.Y.S.2d 611 [2d Dept 1988], lv denied 72
N.Y.2d 810, 531 N.E.2d 658, 534 N.Y.S.2d 938 [1988]) involved an
appointment to a coaching position, and relied on Enlarged City School
Dist., without noting that this case left open the question of
qualifications. Matter of Board of Educ. of Port Jefferson Union Free
School Dist. v Port Jefferson Teachers' Assn. (243 A.D.2d 468, 663
N.Y.S.2d 69 [2d Dept 1997], lv denied 91 N.Y.2d 814, 698 N.E.2d 956,
676 N.Y.S.2d 127 [1998]), also involving a coaching position, found
that the grievance was not arbitrable, and cited to Riverhead as an
alternative basis for staying arbitration. In Matter of Meehan v Nassau
Community Coll. (152 A.D.2d 313, 548 N.Y.S.2d 741 [2d Dept 1989], lv
dismissed 75 N.Y.2d 1005, 556 N.E.2d 1118, 557 N.Y.S.2d 311 [1990]),
leave to appeal was dismissed for nonfinality. Finally, Matter of South
Country Cent. School Dist. (Paul) (103 A.D.2d 780, 477 N.Y.S.2d 417 [2d
Dept 1984]) relied on Matter of Sweet Home Cent. School Dist. v Sweet
Home Educ. Assn. (58 N.Y.2d 912, 914, 460 N.Y.S.2d 531, 447 N.E.2d 79
[1983]), a case superseded by statute.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*17] [2] Given the narrow scope of the public policy
exception to an arbitrator's powers, we decline to find that public
policy has an interest in choosing from among qualified candidates for
after-school teaching positions. The Board has provided no reason why
public policy requires such a result. The question left open in
Enlarged City School Dist. is not implicated on these facts, and so we
leave its resolution for another day.
[3] Finally, we also disagree with the Appellate Division's alternative
conclusion that the arbitrator exceeded the scope of her authority
under the CBA. "[I]t is not for the courts to interpret the substantive
conditions of the contract or to determine the merits of the dispute"
(Board of Educ., Lakeland Cent. School Dist. of Shrub Oak v Barni, 51
N.Y.2d 894, 895, 434 N.Y.S.2d 975, 415 N.E.2d 963 [1980]). This is true
"even where 'the apparent, or even the plain, meaning of the words' of
the contract has been disregarded" (Maross Constr. v Central N.Y.
Regional Transp. Auth., 66 N.Y.2d 341, 346, 497 N.Y.S.2d 321, 488
N.E.2d 67 [1985] [citation omitted]). In Matter of New York State
Correctional Officers & Police Benevolent Assn. v State of New York
(94 N.Y.2d 321, 704 N.Y.S.2d 910, 726 N.E.2d 462 [1999]),
[*18] we refused to disturb an award, cognizant of the fact that
"[a] court cannot examine the merits of an arbitration award and
substitute its judgment for that of the arbitrator simply because it
believes its interpretation would be the better one. Indeed, even in
circumstances where an arbitrator makes errors of law or fact, courts
will not assume the role of overseers to conform the award to their
sense of justice" (id. at 326 [citations omitted and emphasis added]).
The arbitrator determined that the dispute fell within the scope of
article twenty of the CBA. She found that the principal's
decisionmaking process was arbitrary and capricious. These
interpretations and factual findings appear highly debatable on this
record; however, whether we agree with the arbitrator is beside the
point. Further, the Board may not revive what is, in actuality, a
challenge to arbitrability in another guise. By submitting to
arbitration, the Board ran the risk that the arbitrator would find
Project Read covered under some provision of the CBA, as she did,
notwithstanding the Board's position that Project Read positions were
outside the agreement's scope.
Having [*19] determined that the selection process for
Project Read was encompassed within article twenty, the arbitrator had
the authority under article twenty-two to find that the Board's
exercise of its discretion under this provision was arbitrary and
capricious, and to fashion an appropriate remedy. In finding that the
arbitrator had "couched her analysis of the case in procedural terms"
but that her decision was really "directed at the substantive grounds
on which the selection was made" (298 A.D.2d at 66), the Appellate
Division went beyond the face of the award and substituted its judgment
for the arbitrator's. This was error.
Accordingly, the order of the Appellate Division should be reversed,
with costs, and the order and judgment of Supreme Court reinstated.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and
Graffeo concur.
Order reversed, etc.