Discipline or constructive criticism?

Discipline or constructive criticism?
Source: E-mail received by NYPPL referencing an item posted on the Internet at http://auburnpub.com/news/local/article_0a5c06e8-5a78-11e0-95ff-001cc4c03286.html

Suspended Jordan-Elbridge School District principal David Zehner and his attorneys, citing the Education Law and the Public Officer Law, contend that Zehner cannot be “reprimanded” until a hearing officer is selected to hear any  charges filed against him pursuant to §3020-a of the Education Law and he is found guilty of those charges.

Zehner considered three actions by the Board to constitute reprimands, or punishments, in the nature of disciplinary actions taken against him and petitioned Supreme Court for an order directing the board "to cease disciplining him until it appoints an arbitrator to conduct a hearing on his 3020-a charges."

The school district, on the other hand, contends that it had not reprimanded Zehner but had merely informed him that he had violated board policy by acting inappropriately at meetings. The school district’s attorney, Frank Miller, Esq., said. “This isn’t a letter of reprimand. ... We have a right to say to one of our employees, ’you’re acting up; we’re going to correct you.’”

Distinguishing between “constructive criticism” and a reprimand in the context of a disciplinary action has been addressed in The Discipline Book [http://thedisciplinebook.blogspot.com/ ] as follows:

"In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding. In other words, the appointing authority’s placing correspondence critical of the employee’s conduct or performance in his or her personnel file did not constitute discipline.

"The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

"In contrast, alleged “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.

"As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, 14,396, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000, 'Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.'"

"What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature?

"This could be a difficult question to resolve. As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.

"In the Fusco and Irving cases the Commissioner of Education found that 'critical comment' exceeded the parameters circumscribing 'lawful instruction' concerning unacceptable performance.

"In Fusco’s case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was 'intended to encourage positive change' in Fusco’s performance. The Commissioner noted that the memorandum 'contains no constructive criticism or a single suggestion for improvement.' Rather, said the Commissioner, the memorandum focused on 'castigating [Fusco] for prior alleged misconduct.'"

"In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law." .
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Dissatisfaction with a new job assignment

Dissatisfaction with a new job assignment
Matter of Gaines and the NYC Transit Authority [Commissioner of Labor], Appellate Division, 37 AD3d 962
Shawn A. Gaines was disqualified from receiving unemployment insurance benefits after the Unemployment Insurance Board found that he had voluntarily left his employment without good cause.

Gaines, after working as a train operator for 21 years, was temporarily suspended from his job and scheduled to return to work in October 2004. In the interim, however, the Transit Authority implemented a policy prohibiting employees from working as train operators when, as was the situation with Gaines, they have medical restrictions that prevent them from operating trains in passenger service.

Gaines’ restriction: he suffered a hearing loss.

The Authority, however, told Gaines it would place him in a different position and directed him to report for medical examinations. Gaines did not report for the examinations nor did he provide the Authority with the documentation it had requested concerning his medical condition. Instead, Gaines filed a claim for unemployment insurance benefits claiming that he was terminated for lack of work.

The Unemployment Insurance Appeal Board disqualified him from receiving benefits after finding that Gaines had voluntarily left his employment without good cause. The Board also charged Gaines with a recoverable overpayment of more than $1,600 and reduced his right to receive future benefits by eight effective days. Gaines appealed.

The Appellate Division affirmed the Board’s determination, stating that dissatisfaction with a new job assignment, the terms and conditions of which are comparable to a former job, has been held not to constitute good cause for leaving one's job.

Other factors cited by the court supporting the Board’s determinations:

1. Gaines said he did not want to be placed in a different position even though an Authority representative testified that Gaines would receive the same salary and vacation time.

2. By failing to appear for the Authority’s medical examinations before knowing the nature of the position to which he was to be reassigned, Gaines failed to take reasonable steps to protect his employment.

Considering the fact that Gaines “inaccurately represented that he was laid off when continuing work was, in fact, available,” the court ruled that substantial evidence also supports the Board's finding that he made a willful misrepresentation to obtain benefits.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/dissatisfaction-with-new-job-assignment.html
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Interpreting contract language

Interpreting contract language
Local 589 v Cuevas, 271 AD2d 535

Using clear and unambiguous language in a collective bargaining agreement makes it easier for a court to resolve the meaning of a Taylor Law contract provision.

In the Local 589 case, the union attempted to convince the court that PERB had misinterpreted the provisions set out in a collective bargaining agreement when it declined to accept jurisdiction over an improper practice charge filed by the Local. The Appellate Division, Second Department disagreed, affirming PERB’s determination in the matter.
The City of Newburgh and International Association of Firefighters Local 589 had negotiated a collective bargaining agreement that included a “Section 207-a Procedure” that dealt with filing application for, and the awarding of, disability benefits pursuant to Section 207-a of the General Municipal Law.

The negotiated procedure stated that [a]ny claim of violation, misapplication, or misinterpretation of the terms of the Procedure shall be subject to review only by judicial proceeding.

Claiming that requiring a disabled firefighter’s physician to fill out a newly-created form violated the Procedure, the Local filed an improper practice charge with PERB. PERB, however, declined to assume jurisdiction, holding that it was procedurally barred by the Procedure from reviewing the charge in view of the clear and unambiguous contract language used in the collective bargaining agreement.

Although a State Supreme Court annulled PERB’s determination, the Appellate Division disagreed, finding that PERB dismissal of the Local’s improper practice charge was based upon a reasonable interpretation of the provision at issue. The court noted that the scope of judicial review of a PERB determination interpreting the Civil Service Law is limited, and unless the determination is affected by an error of law or is arbitrary and capricious, it will be upheld. PERB, said the court, is presumed to have developed an expertise which requires the courts to accept its construction of that law if it is not unreasonable.

What is standard applied by the courts in such cases? The Second Department said that [a]s long as the PERB interpretation is legally permissible and does not breach constitutional rights or protections, the courts will not disturb that determination.

PERB had decided that the thrust of Local 589’s unfair practice charge was that the new documentation requirement violates the established terms of the Procedure. In view of the specific language contained in the Procedure concerning resolving disputes concerning its provisions -- shall be subject to review only by judicial proceeding -- the Appellate Division said that PERB’s determination that it could not review the improper practice charge was a reasonable and supportable interpretation of the parties’ agreement.
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Smoke breaks ruled off-duty activity

Smoke breaks ruled off-duty activity
Eckerson v State and Local Retirement Systems, 270 AD2d 705, motion for leave to appeal denied, 95 NY2d 756

Significant accidental disability retirement benefits are available to members of the New York State and Local Retirement Systems [ERS] who are disabled as the result of an accident incurred in performing official duties.

In the Eckerson case, the Appellate Division considered the issue of what constitutes performing official duties for the purpose of establishing eligibility for accidental disability retirement benefits.

Dennis Eckerson, an employee of the Central New York Psychiatric Center, slipped and fell returning from a designated smoking area to the building where he worked.

ERS ruled that Eckerson was not in service when he was injured returning from his smoking break and disapproved his application for accidental disability retirement benefits. Eckerson filed an Article 78 petition challenged ERS’ determination.

Admitting that he smoked a cigarette prior to his fall, Eckerson also testified that he went to the smoking area to conduct work-related business. This conflicting evidence, said the Appellate Division, created a credibility issue for ERS to resolve. The court sustained ERS’ conclusion that Eckerson’s representation that he went to the smoking area to conduct official business was not creditable.

The court also noted that in considering accidental disability retirement applications filed by other ERS members based on a “slip and fall” on their employer’s premises, ERS had concluded that the member was not in service for the purpose of eligibility for such benefits in situations where:

1. The employee had not yet reported for work [Farley v McCall, 239 AD2d 779];

2. The employee was injured during a lunch break [Nappi v Regan, 186 AD2d 855]; and

3. The employee was injured after the work shift had ended [DiGuida v McCall, 244 AD2d 756].

The Appellate Division said that it found nothing irrational in ERS’ applying a similar rationale in the case of an injury sustained by an employee during his or her smoke break where the member cannot demonstrate that he or she was conducting official business at the time.

On the issue of credibility, frequently the review of an application for accidental disability retirement benefits involves conflicting evidence.

In Giebner v McCall, 270 A.D.2d 705 , also decided by the Appellate Division, the court held that where the record contains contradictory medical evidence concerning whether the applicant was permanently disabled, it was within ERS’s discretion to evaluate the differing medical opinions and resolve the conflict against the applicant.

The Appellate Division applied the same standard in resolving the question of determining credibility in Eckerson’s case.
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Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error

Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error
Matter of Social Servs. Employees Union, Local 371 v City of New York, Dept. of Juvenile Justice, 2011 NY Slip Op 02455, Appellate Division, First Department

Judge Alice Schlesinger confirmed an arbitration award reinstating Bowana Robinson to his position as an institutional aide at the City of New York's Department of Juvenile Justice. The award also provided Robinson with back pay and seniority.

The Appellate Division vacated the lower court’s ruling and remanded the matter to the arbitrator “for a determination of an appropriate penalty.” The court said that the arbitrator had failed to “give preclusive effect” to the fact that Robinson had plead guilty plea of petit larceny, which “was irrational” and the arbitrator’s award “places Robinson back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility.”

The ruling in Kelly v. Levin, 440 NYS2d 424 involved a similar situation - an administrative tribunal's failure to give preclusive effect to a relevant criminal conviction by a court. Kelly involved a school business administrator charged with larcenies of school funds and bringing discredit upon the school district.

The Education Law §3020-a disciplinary panel found the Kelly guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges. Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being served with the §3020-a disciplinary charges (see People v Kelly, 72 AD2d 670).

The court ruled that it was reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02455.htm .

Refusing a light duty assignment may affect eligibility for other benefits

Refusing a light duty assignment may affect eligibility for other benefits

Peluso v Fairview Fire District, 269 AD2d 623

One factor to consider in cases involving claims resulting from job related injuries or disease: the impact of refusing to accept a light duty assignment with respect to other benefits that might be available to a disabled worker.

Clearly both General Municipal Law Section 207-a, applicable to firefighters and General Municipal Law Section 207-c, applicable to law enforcement personnel, provide for the discontinuation of benefits if a disabled police officer or firefighter declines to perform a light duty assignment consistent with his or her position unless the individual can produce evidence that he or she is medically unqualified to perform the light duty assignment.

In the Peluso case, the Appellate Division agreed with the Workers’ Compensation Board that Peluso’s rejection of a light duty assignment was evidence that he had voluntarily withdrew from the labor market. This, said the court, justified the Board denying his claim for workers’ compensation benefits.

Peluso retired from his position of fire captain, claiming he could no longer work as the result of a disabling back condition caused by several job related injuries.

The Appellate Division, in affirming the Board’s action, said that the fire chief’s testimony that several different types of light-duty assignments were available to all firefighters, including Peluso, depending on the nature of the disability constituted substantial evidence sufficient to sustain the Board’s determination.

The fire chief had testified that Peluso did not request a light-duty assignment, did not accept a light duty assignment when one was offered to him and that he continued to perform his regular duties as a captain, including responding to two calls on his last day of work.

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Disclosure of the terms of settlement agreements pursuant to a FOIL demand

Disclosure of the terms of settlement agreements pursuant to a FOIL demand

Hansen v Wallkill, App. Div., 2d Department, 270 AD2d 390

Sometimes an individual and an employer decides to terminate the individual’s employment or settle a disciplinary action in accordance with agreed upon terms and conditions. Such an agreement typically contains a “non-disclosure” clause. What happens if the terms of the settlement are made public without the expressed consent of both parties? This was the issue raised in the Hansen case.

Jon Hansen and the Town of Wallkill entered into a settlement agreement that required the Town to make “severance payments” to Hansen. When the town supervisor, Howard Mills, revealed the amount of the severance payments being made to Hansen under the terms of the agreement to the town board, Hansen sued for damages, claiming the disclosure constituted a breach of contract.

Hansen pointed to a clause in the agreement that provided that the terms of the settlement were to remain confidential except as may be required by law or legal process.

Mills, on the other hand, argued that the town board was told the amount of Hansen’s severance pay in response to a question during a regular meeting and that his disclosing this information was required under the Freedom of Information Law (FOIL).*

The Appellate Division sustained a lower court’s ruling dismissing Hansen’s complaint.

The court said that “[i]t is well settled that FOIL imposes a broad duty of disclosure on government agencies,” citing Section 84 of the Public Officers Law.

In essence, all public records are to be disclosed pursuant to a FOIL demand except:

1. When disclosure is specifically prohibited by law or by a court order; or

2. Where a record falls within an exception which permits the custodian of the record or document, as a matter of the exercise of discretion, to withhold the information and the entity elects to exercise its discetion and withholds it.

The disclosure of the amount of the severance payment, said the court, does not fall within any of the FOIL exceptions. Further, while the town supervisor did not seek court authorization for the disclosure, the agreement did not require prior court authorization to do so.

Suppose the information sought under FOIL concerns a disciplinary settlement. Can a public employer agree to keep the settlement document confidential?

This issue was considered by the Appellate Division in LaRocca v Jericho UFSD, 220 AD2d 424. In LaRocca, the court decided that the terms of a disciplinary settlement were subject to disclosure under FOIL.

The court held that a disciplinary settlement agreement did not constitute an employment history as defined by FOIL and therefore was presumptively available for public inspection. In addition, the court said that “as a matter of public policy, [a public employer] cannot bargain away the public’s right to access to public records.”

The Appellate Division decided that a settlement agreement, or any part of it, providing for confidentiality or denying the public access to the document is unenforceable as against the pubic interest.

The settlement agreement between LaRocca and Jericho, however, contained references to charges that LaRocca denied, or were not admitted, together with the names of other employees. The Appellate Division held that disclosure of those specific portions of the agreement would constitute an unwarranted invasion of privacy within the meaning of FOIL and thus could be redacted from the document.

* A “FOIL request” is the method used by an individual to inform the custodian of the public record involved that he or she wishes to inspect or copy public records and to identify the particular documents or records of interest.

Employee suspended without pay for eight days after being found guilty of refusing to immediately comply with supervisor’s instruction

Employee suspended without pay for eight days after being found guilty of refusing to immediately comply with supervisor’s instruction
NYC Dept. of Transportation v Solli, OATH Index #2888/10 .

OATH Administrative Law Judge Kara Miller recommended dismissal of charges brought against a New York City Department of Transportation employee. .

With respect to charges involving an alleged verbal and physical altercation with a co-worker with a co-worker, Judge Miller determined that the employee, Donna Solli, attempted to avoid a confrontation with a co-worker by leaving the area. .

The co-worker, however, followed Solli to a different location and initiated physical contact. Judge Miller found that “the force used by [Solli], if any, was defensive. .

Solli was also served with a separate charge of insubordination. The Department alleged that Solli refused her supervisor’s instructions to repair a pothole.

Although Solli ultimately complied with the supervisor’s directive, Judge Miller ruled that her failure to do so promptly was misconduct. .

The ALJ recommended that the Department place Solli on suspension without pay for eight days. . The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2888.pdf
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Extending a promotion eligible list following wrongful disqualification

Extending a promotion eligible list following wrongful disqualification
Matter of Carozza v City of New York, 37 AD3d 247

Brigitte Carozza won her lawsuit contending that she and her co-plaintiffs had been “wrongfully disqualified retroactively from consideration for promotion by reason of having just been placed in new job titles” (see Matter of Carozza v City of New York, 10 AD3d 488 [2004]).* As a result, Carozza and her co-plaintiffs were placed on promotion eligible lists just one month before those lists expired.

Carozza and her co-plaintiffs immediately brought a second lawsuit seeking the creation of special eligible lists pursuant to Civil Service Law §56(3). The placement of their names on such a list would provide them with an additional period of eligibility for promotion from a list. Carozza, and her co-petitioners, however, were not as successful in this second action.

The Appellate Division ruled that Carozza’s “successful challenge” to her, and her co-petitioners’ disqualification was not based on a finding that an error had caused a flaw in the entire promotional process, resulting in a list that did not accurately measure the merit and fitness of those candidates whose names were on the list.**

Accordingly, said the court, the remedy sought in this second lawsuit “does not comport” with the merit and fitness mandate set out in Article V, Section 6 of the New York State Constitution.

The court’s rationale: “Under the circumstances, it cannot be said that the original lists had no legal existence and thus could not have expired.”

The decision is posted on the Internet at
:http://nypublicpersonnellawarchives.blogspot.com/2007/02/eligibility-for-promotion.html

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* In Carozza I, the court said: “CSC rationally concluded that the employees' acceptance of jobs in a new title series could not retroactively disqualify them for promotions in their old title series for which they were qualified at the time they took the promotional examination, at least in the absence of clear notice that by accepting the new jobs they were effectively voiding the examinations and otherwise disqualifying themselves for promotion in the old series.”

** Civil Service Law §56(3), in pertinent part, provides as follows: Notwithstanding any law to the contrary, the name of any applicant or eligible whose disqualification has been reversed or whose rank order on an eligible list has been adjusted through administrative or judicial action or proceeding shall be placed on an eligible list for a period of time equal to the period of disqualification or for the period the application has been improperly ranked, up to a maximum period of one year or until the expiration of the eligibility list, whichever is longer. If an eligible list expires prior to the expiration of such period of restoration, the name of the applicant or eligible shall be placed on a special eligible list, which shall have a duration equal to the remainder of the period of restoration.

Scope of arbitrating an alleged violation of a collective bargaining agreement

Scope of arbitrating an alleged violation of a collective bargaining agreement

Richfield Springs CSD v Allen, 270 AD2d 734

Changes in health insurance benefits may be initiated by a third party that actually provides the benefit. Does an employee organization have any right to challenge a unilateral change in the health insurance plan made by the third party?

This was the major issue in Richfield Springs, a case that essentially explores the issue of the scope of arbitration under a Taylor Law agreement.

The health insurance plan covering members of the Richfield Faculty Association was changed. The plan had been established under Sections 92-a and 119 of the General Municipal Law and was commonly referred to as the BOCES plan.

The Association’s basic objection: there was a change of carriers responsible for administering the BOCES Plan’s coverage for prescription drugs. The Association’s basic concern: the coverage to be provided by the new carrier would be inferior to the coverage under the BOCES’s existing plan.

The Association demanded that the former prescription drug insurance be continued and that unit members be given reimbursement for any financial loss that they incurred as a result of the change. To enforce its demand, the Association filed a grievance formally objecting to the change. Eventually Richfield Springs Faculty Association President Tracy Allen demanded that the Association’s grievance be submitted to arbitration.

In response to the demand for arbitration, the Richfield Central School District asked for, and obtained, a stay of arbitration from a State Supreme Court judge. Its argument: the dispute was not subject to the arbitration clause of the Agreement. The Association appealed.*

The Appellate Division reversed the lower court’s ruling. The court decided that the Association’s grievance regarding the change in the carrier of the prescription drug plan covering its members is arbitrable after all.

The court explained that “[i]t is settled law that grievances arising under public sector parties’ collective bargaining agreements are subject to arbitration where both arbitration of the subject matter of the dispute is authorized by the Taylor Law (Civil Service Law Article 14) and the parties clearly agreed by the terms of their contractual arbitration clause to refer their differences in the specific disputed area to arbitration,” citing Matter of Liverpool Central School, 42 NY2d 509.

This view was amplified by the Court of Appeals in a subsequent ruling, Matter of Watertown Education Association, 93 NY2d 132.

Using a two-step analysis, first the Appellate Division applied the Liverpool test and concluded that contract arbitration clause in the contract covered the subject matter of the dispute. It then applied the Watertown test -- did the parties in fact agree to arbitrate this particular grievance? It concluded that the parties had so agreed.

The court pointed to the fact that the Richfield Springs collective bargaining agreement specifically included a clause stating that prescription drug coverage was to be provided by Prescription Card Services (PCS). Further, said the court, the Agreement expressly provided that [a]ny change in [insurance] plan or carrier shall be by mutual agreement of the parties.

The Appellate Division said that since there is no dispute that the specified carrier of the prescription drug plan was changed from PCS to another provider without the Association’s consent, this supported the claim of an alleged violation of the Agreement, which the parties clearly and unequivocally agreed to arbitrate.

What about the district’s argument that it was not compelled to arbitrate changes unilaterally initiated by a third party? The Appellate Division decided that this was irrelevant insofar as the parties to the collective bargaining agreement were concerned.

The decision indicates that the fact that the claimed reduction in employee health benefits may have been effected by a third party, here the BOCES Plan’s Board of Directors, which was not a party to the collective bargaining agreement, rather than by the school district, does not determine whether or not the grievance is arbitrable.

The test applied by the Appellate Division: where the parties broadly agreed to arbitrate any alleged violation of their collective bargaining agreement or any dispute with respect to its meaning or application, and included language dealing specifically with health insurance benefits, a grievance concerning a claimed reduction in health insurance benefits is arbitrable.

Accordingly, the Appellate Division ruled that the Association’s grievance was arbitrable and the scope of the pertinent provisions of the Agreement and the merits of the grievance should be resolved by the arbitrator.

In another case involving the implementation of a contract arbitration procedure, In re Marinelli (Keller), 269 AD2d 750, the Appellate Division, Fourth Department granted Keller’s motion to compel the arbitration of a contract dispute.

Keller, as president of the Wayne Finger Lakes BOCES Faculty Association, had submitted a grievance claiming that the BOCES’s scheduling of a work day prior to Labor Day was in violation of an express provision in the collective bargaining agreement.

When the BOCES refused to submit the question to arbitration, Keller filed a petition to compel arbitration pursuant to Article 75 of the Civil Practice Law and Rules.

The Appellate Division pointed out the collective bargaining agreement in question defined an arbitrable grievance as a claim by any member of the bargaining unit based on a violation of any of the specific and express provisions of this Agreement.

The court agreed with the Association that parties agreed `by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.’

However, there are other considerations that may preclude a unilateral change in a Taylor Law agreement from being submitted to arbitration.

Although not identified as an issue in the Richfield Springs case, as the Appellate Division, Second Department noted in Port Washington USFD v Port Washington Teachers Association, 268 AD2d 523, [motion for leave to appeal denied, 95 NY2d 761], a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration.

In Port Washington, the parties agreed to include a specific religious holiday provision in a Taylor Law agreement. The clause allowed employees to be absent with pay to observe certain religious holidays without charging any leave accruals. The school district then refused to implement the provision, claiming that it was unconstitutional.

The Appellate Division agreed that the provision was unconstitutional and held that the school district’s refusal to implement the contract clause was not subject to arbitration under the contract’s grievance procedure.

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* Initially the Association’s motion to compel arbitration was granted by the Supreme Court but subsequently an amended order was issued staying arbitration based on the court’s finding that the Taylor Law agreement did not bind the district to arbitrate disputes between the Association and a third party, here the BOCES Plan administrators.