State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 520381 

________________________________

In the Matter of the 

Arbitration between

BOARD OF EDUCATION OF THE

CATSKILL CENTRAL SCHOOL

DISTRICT,

Appellant, MEMORANDUM AND ORDER

and

CATSKILL TEACHERS ASSOCIATION,

Respondent,

et al.,

Respondent.

________________________________

Calendar Date: May 28, 2015

Before: Garry, J.P., Egan Jr., Rose and Lynch, JJ.

__________

Shaw, Perelson, May & Lambert, LLP, Poughkeepsie (Mark C.

Rushfield of counsel), for appellant.

Richard A. Casagrande, New York State United Teachers

Association, Latham (Christina F. French of counsel), for

respondent.

__________

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
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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

AD3d 1129, 1130 [2006] [internal quotation marks and citations

omitted]; see Matter of Union-Endicott Cent. School Dist.

[Endicott Teachers' Assn], 59 AD3d 799, 800 [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

NY2d 619, 627 [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
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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 bargainedfor agreement to secure such services through a CBA (compare

Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40

NY2d 774, 777 [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

1 To the extent that petitioner argues that decisions of

the Public Employment Relations Board have held otherwise, we

disagree. Neither of the decisions cited by petitioner stand for

the proposition that school districts are prohibited from

bargaining for prekindergarten instructional services in accord

with the terms of a CBA. Rather, they merely stand for the

proposition that a school district is not required to bargain for

these services where they have not already done so (see Matter of

Lawrence Teachers' Assn., NYSUT, AFT, NEA, AFL-CIO v Lawrence

Union Free Sch. Dist., 47 PERB ¶ 4556 [2014]; Matter of Civil

Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Springs

Sch. Unit v Springs Union Free Sch. Dist., 45 PERB ¶ 3040

[2012]).
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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 NY2d

623, 631 [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 NY2d 905, 906 [1987] [internal

quotation marks and citation omitted]; see Matter of Board of

Educ., Hunter-Tannersville Cent. School Dist. [McGinnis], 100

AD2d 330, 334 [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

addressed to this procedural guarantee would not infringe upon

petitioner's purported discretion to contract with outside

agencies, we find no error in Supreme Court's determination (see

Matter of Babylon Union Free School Dist. v Babylon Teachers

Assn., 79 NY2d 773, 774-775 [1991]; Matter of Enlarged City

School Dist. of Troy [Troy Teachers Assn.], 69 NY2d at 907;

Matter of South Country Cent. School Dist. v Bellport Teachers

Assn., 184 AD2d 771, 773 [1992]). 

Having found that there is no public policy prohibition, we

turn to the second part of the threshold inquiry – that is,

whether the parties agreed to submit the subject matter of the

dispute to arbitration (see Matter of City of Ithaca [Ithaca Paid

Fire Fighters Assn., IAFF, Local 737], 29 AD3d at 1130). In

considering this issue, we must only ascertain if "there is a

reasonable relationship between the subject matter of the dispute

and the general subject matter of the CBA" (Matter of Board of

Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93

NY2d 132, 143 [1999]; see Matter of County of Herkimer v Civil
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Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, 124 AD3d

1370, 1371 [2015]). Here, both the grievance and the CBA concern

the procedures that petitioner must follow in hiring new

employees, as well as the terms and conditions of employment. 

Although petitioner argues that the absence of any specific

reference to prekindergarten teachers from the CBA indicates that

the parties did not intend to bind themselves to arbitration on

this subject, "[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" (Board of Educ. of

Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311,

314 [1980]). Upon review, we find that a reasonable relationship

exists between the subject matter of the CBA and the dispute at

issue sufficient to require the dispute to be submitted to

arbitration (see Matter of Town of Saugerties [Town of Saugerties

Policeman's Benevolent Assn.], 91 AD3d 1264, 1265 [2012]; Matter

of Board of Educ. of Schenectady City School Dist. [Schenectady

Fedn. of Teachers], 61 AD3d 1175, 1176 [2009]).

Egan Jr., Rose and Lynch, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court