Wyandanch Union Free School District v. Wyandanch Teachers Ass'n , 412 N.Y.S.2d 24 ( 1978 )

Gulotta, J.,

concurs insofar as the majority has directed the parties to proceed to arbitration on the first grievance contained in the November 14, 1977 demand, but otherwise dissents and votes to direct the parties to proceed to arbitration on the November 23, 1977 demand, with the following memorandum, in which Shapiro, J., concurs: In my opinion the judgment should be reversed insofar as appealed from and the application to stay arbitration denied as to both grievances in question. The majority is correct in concluding that the first grievance contained in the demand for arbitration dated November 14, 1977 (involving petitioner’s alleged violation of certain procedural prerequisites to its adoption of a new "educational program”) is arbitrable under the instant agreement (see Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411; see, also, Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898; Matter of Board of Educ. v Merrick Faculty Assn., 65 AD2d 136). It is my belief, however, that the third grievance contained in the demand for arbitration dated November 23, 1977 (the only other grievance whose arbitrability has been raised on appeal) should also be considered arbitrable, as it is the teachers’ position that the district’s newly imposed requirement that they compose written "unit plans” without additional compensation is violative of article 3 (subd E, par [1]) of the collective bargaining agreement (as amended by the "Memorandum of Agreement” dated Sept. 6, 1977). That contract also provides for the arbitration of "grievances”, which are defined to include "any dispute concerning the meaning, interpretation or application of this agreement.” Since the "work load” of the teachers was a permissible subject of negotiation under the Taylor Law, and since the agreement to arbitrate is sufficiently broad in scope to include the question of whether the assignment of this "new task” was violative of the cited contract provision, it is my opinion that the grievance should be permitted to proceed to arbitration (see Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; see, also, Matter of Board of Educ. v Merrick Faculty Assn., supra). The viability of this particular grievance under the terms of the collective bargaining agreement is not properly before us at this juncture, as CPLR 7501 provides, inter alia: "In determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute” (emphasis supplied). The command of the statute is thus abundantly clear and precludes us from considering the merits of the underlying grievance on this application for a stay.