Morris Central School District Board of Education v. Morris Education Ass'n

ciation) filed a grievance alleging that a "discharge of a member of the bargaining unit” had occurred which constituted a violation of the collective bargaining agreement. Reinstatement with accumulated benefits was the relief sought. Although the grievance filed with the Board on March 14, 1975 delineated articles 2, 4, 6 and 51 as definitive of the area allegedly breached by the Board, at Special Term and on this appeal only the "just cause” provision in section (2) of article 6 of the agreement*^[2] was advanced as supportive of appellants’ position that a stay of arbitration should be denied (CPLR 7503, subd [b]). The issue raised by this appeal once again brings up for review the question of whether the granting or withholding of tenure by a Board, prior to the expiration of a teacher’s probationary period, is an arbitrable issue because of the presence of a "dismissal clause” or a "just cause” provision in the agreement between the teacher’s bargaining unit and the school district. This court in Matter of Candor Cent. School Dist. (Candor Teachers Assn.) ( 52 AD2d 400 ) held that it was an irrational interpretation to escalate the "dismissal clause” into a provision to submit failure to achieve tenure to arbitration. Candor also enunciated the point that a teacher’s termination by the Board at the end of the probationary period is not a dismissal, but, rather, a failure to obtain tenure which operated as a matter of law to terminate employment. Therefore, a determination by an arbitrator that such a probationary employee was terminated without "just cause” would be an act beyond the powers of the arbitrator because it would be tantamount to making a new contract between the parties. Next, while a public employer’s power to bargain collectively is broad and in the public interest, it is not unlimited and may not encompass areas prohibited by statute (Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268 ). Section 6 of article V of the New York State Constitution requires appointment in public employment to be made upon a determination of merit and fitness. The fulfillment of the constitutional mandate has been legislatively delegated to boards of education by the provisions of the Education Law (Legislative Conference of City Univ. of NY. v Board of Higher Educ., 38 AD2d 478 , 480, affd 31 NY2d 926 ), specifically, with respect to probationary teachers by subdivision 2 of section 3013 of said law. Insofar as pertinent to a nontenured teacher, subdivision 2 states, "Each person who is not to be so recommended for appointment on tenure shall be so notified in writing by the principal of the district, not later than sixty days immediately preceding the expiration of his probationary period.” Moriarty was so timely notified. Thus, the issue is further refined to a consideration of whether a statutory duty can be bargained away or proscribed by agreement between a school board charged with the duty and a nontenured teacher’s union. While we would agree that a school board, in the exercise of its power to bargain collectively, might contract to establish and apply certain evaluation standards to a probationary teacher’s conduct, and, further, that a grievance that such standards were not applied would be arbitrable (Matter of Central School Dist. No. 2 [Livingston Manor Teachers