                          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
                              -2-                520381

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
                              -3-                520381

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 bargained-
for 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]).
                              -4-                520381

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
                              -5-                  520381

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
