In re the Arbitration between Franklin Central School & Franklin Teachers Ass'n , 424 N.Y.S.2d 739 ( 1979 )

Main, J.,

dissents and votes to affirm in the following memorandum. Main, J. (dissenting). I respectfully dissent. The Court of Appeals has expressly held, in a case relied upon by the majority, that when a dispute arises in the field of public employment between a board of education and its employees, it must be assumed "in the absence of clear, unequivocal agreement to the contrary, that the board of education did not intend to refer differences which might arise to the arbitration forum” (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.] 42 NY2d 509, 514). Applying this standard in the present instance, I find there to be lacking from the record in this case the requisite evidence that the Franklin Central School District (district) agreed to confer upon the newly created school nurse position the arbitration rights embodied in the collective bargaining agreement negotiated between the district and the Franklin Teachers Association (association) long before the creation of the school nurse position and covering the period July 1, 1976 to June 30, 1979. On this question, it should initially be noted that such an agreement by the district would be most unlikely because it would effectively serve to give to an arbiter the authority to nullify the district’s action aimed at reducing expenditures by the substitution of the lower-paying, nontenured, civil service school nurse position for the abolished instructional position of teacher nurse. Furthermore, while the district did consent to include the new position in the association’s bargaining unit, surely this factor by itself is not sufficient to establish that position’s entitlement to arbitration or any other rights under the subject contract. At most, the position’s inclusion in the bargaining unit demonstrates that the association was to be the bargaining agent for the occupant of the position in his or her relationship and negotiations with the district, and that this was the actual intention of the parties involved is strongly supported by a letter of September 1, 1977 from the district to Laing. In that letter, which Laing signed at the bottom to indicate her acceptance of the school nurse position, she was explicitly-advised that she was to be paid at a rate of $3 per hour and that the position was to be a part of the bargaining unit "for the purpose of negotiation under the provision of the Civil Service Law”. Additionally and most significantly, the health benefits granted to the district’s other employees under the collective bargaining agreement were specifically extended to the school nurse position in the subject letter, an action by the district which would be unexplainable and meaningless if, as reasoned by the majority, the district had already agreed that the school nurse position was to be governed by the previously negotiated collective bargaining agreement. Under these circumstances, the association’s argument that there was a clear and unequivocal agreement by the district to arbitrate disputes arising relative to the new school nurse position is plainly untenable, and it cannot be accepted. Accordingly, the requested arbitration should have been stayed and Special Term’s denial of the stay should be reversed.