In re the Arbitration between Board of Education & Hess

400 N.E.2d 329, 49 N.Y.2d 145, 424 N.Y.S.2d 389, 1979 N.Y. LEXIS 2491, 105 L.R.R.M. (BNA) 3281
CourtNew York Court of Appeals
DecidedDecember 19, 1979
StatusPublished
Cited by30 cases

This text of 400 N.E.2d 329 (In re the Arbitration between Board of Education & Hess) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Arbitration between Board of Education & Hess, 400 N.E.2d 329, 49 N.Y.2d 145, 424 N.Y.S.2d 389, 1979 N.Y. LEXIS 2491, 105 L.R.R.M. (BNA) 3281 (N.Y. 1979).

Opinion

OPINION OF THE COURT

Fuchsberg, J.

In a proceeding brought pursuant to CPLR 7511, the Appellate Division reversed an order of Special Term vacating an arbitration award which, inter alia, had ordered a school district to reinstate a former teacher. The essential question is whether the arbitrator exceeded his power.

The arbitral proceeding was the last stage in the grievance machinery provided by a collective bargaining agreement between petitioner Norwood-Norfolk Central School District and respondent Norwood-Norfolk Central Teachers Association to cover the 1975-1976 school year. The controversy arose out of the district’s decision not to re-employ respondent [150]*150Harriet Liota, who had then worked for it as an art teacher for some five years.

At the time her principal notified Ms. Liota of this decision, he also gave her a copy of her year-end evaluation, which included critical comments about classroom control and the like. Believing that these formed the basis for her termination, she then filed a grievance in which she complained that the school had neglected to comply with subdivision B of article IV of the union agreement. That clause, entitled "teacher evaluation”, reads: "It is recognized that a system of periodic evaluation is essential to assist teachers in developing competency and realizing their potential. It is further recognized that information gathered through such a system will enable decisions by the Board of Education concerning reappointment, tenure, promotion, etc., to be made in a just and equitable manner. Consequently it is agreed that the policy on evaluation jointly developed by the administration and Teaching staff will be followed for the life of the contract subject to modification jointly agreed upon” (emphasis ours). Further particularizing her grievance, she went on to assert, and in due course the arbitrator was to find, that, despite its commitment to assist teachers in developing competency, the district had not only been derelict in failing to confer with her as to. the results of its 1975-1976 observation of her classroom performance, but that in the two previous years it had not even bothered to make observations at all.

The school’s answer was directed solely to meeting the charge articulated by the teacher. The submission to the arbitrator, as pertinent here, was simply whether "the District violated Article IV, B as to observations and evaluations”. Only during the arbitration hearings, which followed the three prearbitration stages, did the district take the tack that the determination not to re-engage Ms. Liota, then a provisionally certified teacher, had been impelled by her failure to obtain permanent certification within five years of her initial employment (see State Education Dept, Memorandum Div TEC 75-76 [5] [May, 1976]).

As found by the arbitrator, however, the district had been notoriously lax in its enforcement of that requirement until December, 1975, when its board of education newly announced a policy whereunder "continued employment of teachers who have allowed their provisional certifications to lapse” was to be conditioned on successful completion of six graduate credits [151]*151during the 1975-1976 year and at least six more in each subsequent year until the certification deficit was cured. However, Ms. Liota, to the knowledge of the school authorities and at their inspiration, had embarked on a more than responsive after-school program of nine credit hours towards a master’s degree for 1975-1976 and apparently was pursuing it diligently at the time of her separation.

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Bluebook (online)
400 N.E.2d 329, 49 N.Y.2d 145, 424 N.Y.S.2d 389, 1979 N.Y. LEXIS 2491, 105 L.R.R.M. (BNA) 3281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-board-of-education-hess-ny-1979.