United Liverpool Faculty Ass'n v. Board of Education

Order reversed, with costs, and motion to confirm award granted. Memorandum: The appeal before us arose when a teacher, Ms. Sharon Schwab employed by respondent Liverpool Central School District, was not recommended for tenure at the end of her third year. Appellant United Liverpool Faculty Association instituted arbitration proceedings on her behalf. The arbitrator found three contract violations and fashioned a remedy that would reinstate Ms. Schwab for one additional probationary year during which the school district could observe and evaluate her 918 performance in accordance with the collective bargaining agreement. In vacating this award Special Term held that it violated public policy because it usurped the school district’s authority to determine tenure, that the district did not violate a supplemental procedural step provided for in the agreement, and that the arbitrator had impermissibly determined that an arbitrable controversy existed. There should be a reversal. The main issue presented is whether the contract violations found by the arbitrator are ones which limit the actual tenure decision—void as against public policy— or simply require permissible bargained for procedural steps prior to the tenure determination. In answering the submitted question, i.e., whether the district violated the terms of the agreement when it refused to grant continued employment to Ms. Schwab, the arbitrator found three violations. Two dealt with supervisory reports and one with the tenure recommendation report. Six supervisory reports are required. The tenure recommendation report "shall reflect the overall performance of the teacher” and absent extenuating circumstances "should be consistent with * * * Supervisory Reports.” The first five of the supervisory reports respecting Ms. Schwab rated her "excellent”, but the sixth was mixed, containing both praise and criticism. She was recommended for tenure in the tenure recommendation report and her name was on the list of those to be considered by the board of education. Subsequently, the school principal, who was Ms. Schwab’s supervisor, had a quarrel with her as a result of which, the arbitrator found, the principal went to the superintendent and recommended that Ms. Schwab not be granted tenure. Her name was then crossed off the list of those to be recommended. The arbitrator stated that he did not treat the grievance as one attacking the decision not to grant tenure, but instead viewed it as a claim that the procedural steps prior to the tenure decision had been violated. In substance, he concluded that the unofficial oral report not to recommend tenure made by the principal to the superintendent failed to "reflect the overall performance of the teacher” and that such report was not "consistent with those contained in the Supervisory Reports” and the extenuating circumstances to account for this discrepancy did not exist. Although the school district has the unquestioned right to deny tenure without explanation, the supplemental procedural steps preliminary to such decision are rights enforceable in arbitration (Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778), but of course the arbitrator may not exceed his power and award tenure (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 418). Special Term’s power to intervene is limited, and an arbitration award will be vacated only where it may be said to be "completely irrational” (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Orchard Park Teachers Assn. v Board of Educ., 71 AD2d 1). We find that there is a clear, express and unequivocal agreement to arbitrate this grievance defined, under the agreement, as "any claimed violation, misinterpretation, or inequitable application of the existing laws, rules, procedures, regulations, administrative orders or work rules of the district * * * which relates to supervision of teachers”. In our view the arbitrator’s award did not impinge on the school district’s prerogative with respect to tenure, nor can it be characterized as "completely irrational.” It should, therefore, be reinstated. All concur, except Schnepp and Moule, JJ., who dissent and vote to affirm the order, in the following memorandum.