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October 15, 2010

Determining if a demand to submit a grievance to arbitration is subject to the “two-prong test"

Determining if a demand to submit a grievance to arbitration is subject to the “two-prong test"
Matter of Board of Educ. of Deer Park Union Free School Dist. v Deer Park Teachers' Assn., 2010 NY Slip Op 07338, Decided on October 12, 2010, Appellate Division, Second Department

Regina Moraitis was appointed to the position of Computer Teacher and subsequently she was awarded tenure in that area. In January 2009 the petitioner, Deer Park Union Free School District abolished Moraitis's position and terminated her employment.

The Deer Park Teachers' Association filed a grievance on behalf of Regina Moraitis pursuant to a collective bargaining agreement between the Deer Park School Union Free District and the Teachers' Association and ultimately demanded that the grievance be submitted to arbitration. The demand described the nature of the grievance as one for contract interpretation, and asserted that Deer Park had violated the collective bargaining agreement by abolishing Moraitis's teaching position and not offering her an available position.

Deer Park, in the course of the litigation, said that its appointment of Moraitis to the position of Computer Teacher was a mistake it did not discover until years after the appointment and she should have been appointed as a Computer Technology Staff Developer and that the Developer position was not in the collective bargaining unit represented by the Association.

Deer Park commenced an Article 75 proceeding seeking to permanently stay arbitration on the ground that Moraitis did not hold a position within the bargaining unit represented by the Teachers' Association. The Supreme Court denied Deer Park’s petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that to determine whether a dispute between a public sector employer and employee is arbitrable the courts apply a “two-prong test” described by the Court of Appeals in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.

The first prong of the test: is any statutory, constitutional, or public policy prohibition against arbitrating the grievance? If there is no prohibition against arbitrating, the second prong of the test is triggered and the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute.

As Deer Park did not contend that arbitration of the subject matter of the dispute was prohibited by law or public policy, the only issue to be resolved is whether the parties agreed to arbitrate the particular dispute.

In such a situation, said the Appellate Division, if the arbitration clause is broad enough to encompass the subject matter of a dispute, "[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator," citing Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311.

As the Court of Appeals ruled in Matter of Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, a stay of arbitration is inappropriate where "the parties' agreement to arbitrate the dispute is clear and unequivocal but there is some ambiguity as to the coverage of the applicable substantive provision of the contract."

Pointing out that the “Recognition Clause” in the collective bargaining agreement “explicitly excludes certain employees,” the court noted that the list of excluded employees did not include either the position of Computer Technology Staff Developer or Computer Teacher.

As Article XIII, Section 1(a) of the collective bargaining agreement defines a grievance terminating in binding arbitration as "a claim based upon interpretation, meaning or application of any provision of this contract" with only claim excluded from Article XIII, Section 1(a) is a claim regarding the denial of tenure, the Appellate Division concluded that collective bargaining agreement clearly provides for arbitration of a dispute involving the proper interpretation of its provisions and, on its face, “the subject matter of the dispute as set forth in the [Association’s] demand for arbitration is arbitrable.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07338.htm
NYPPL

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