In the case posted below presented to the Court of Appeals in 1976, the COA ruled that a school board had the absolute right to deny tenure to a probationary teacher, but not if the teacher was denied tenure without any observations to support this decision.
Court of Appeals of New
York
40
N.Y.2d 774; 358 N.E.2d 878; 390 N.Y.S.2d 53; 1976 N.Y. LEXIS 3108; 94
L.R.R.M. 2192
October 19, 1976, Argued
December 2, 1976, Decided
Appeal
from an order of the Appellate Division of the Supreme Court in the Third
Judicial Department, entered December 24, 1975, which, by a divided court,
modified, on the law, and, as modified, affirmed a judgment of the Supreme
Court at Special Term (John T. Casey, J.), entered in Albany County, granting
an application to vacate an arbitration award which directed reinstatement of
one Terrance Hagen as a fourth year teacher for the school year 1974-1975, to
the extent of directing the school district to offer him employment as a
nontenured teacher for the 1975-1976 school year, during which time the
evaluation machinery might be utilized. The modification consisted of providing
that the arbitrator's award was vacated and the matter remitted to the
arbitrator with a direction to the school district to reinstate Hagen as a
nontenured teacher for one year, during which the evaluation machinery could be
utilized.
DISPOSITION: Order affirmed, with costs.
CASE
SUMMARY
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PROCEDURAL POSTURE: Appellant union sought review of an
order of the Appellate Division of the Supreme Court in the Third Judicial
Department (New York), which modified the trial court's judgment by directing
reinstatement of a teacher as a nontenured teacher for one year, during which
the evaluation machinery could be utilized. The union had filed a grievance
against the school district on behalf of the teacher who was discharged.
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OVERVIEW: The teacher was terminated at the end of his probationary
period. The union filed a grievance on his behalf asserting a violation of
two provisions of the collective bargaining agreement between the board of
education and the union. The union claimed that the board had not followed
the procedures set forth in the agreement for evaluating the performance of
probationary teachers. It also alleged a breach of the provision in the
agreement that provided that no teacher would be discharged without just
cause. The arbitrator sustained the union's position and ordered
reinstatement, which would have automatically allowed the teacher to become
tenured after the probationary period. The school district filed suit
under N.Y. C.P.L.R. art. 75 to vacate the
arbitration award, and the union cross-moved to confirm the award. On appeal
of the modification of the arbitrator's award, the court held, in affirming,
that: (1) the board of education could not relinquish its ultimate
responsibility with respect to tenure determinations, and (2) a provision of
the collective bargaining agreement which had that effect was unenforceable
as against public policy.
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OUTCOME: The court affirmed the judgment.
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CORE TERMS: teacher,
tenure, collective bargaining, arbitrator, board of education, probationary
period, school district, nontenured, public policy, Education Law, appointment,
appoint, unenforceable, superintendent of schools, satisfactory, arbitration,
modified, school board, terminate, probationary teachers, school year,
recommended, discharged, grievance, teaching, rank, decisional law,
probationary term, failure to follow, good behavior
LexisNexis® Headnotes
Education Law > Administration & Operation >
Boards of Elementary & Secondary Schools > Authority
Labor & Employment Law > Collective Bargaining & Labor Relations
> Bargaining Units
Labor & Employment Law > Collective Bargaining & Labor Relations
> Enforcement
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A board of education
cannot relinquish its ultimate responsibility with respect to tenure
determinations and that a provision of a collective bargaining agreement
which would have that effect is unenforceable as against public policy.
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Contracts Law > Contract Conditions & Provisions >
General Overview
Labor & Employment Law > Collective Bargaining & Labor Relations
> Bargaining Units
Labor & Employment Law > Wrongful Termination > Breach of Contract
> For Cause Standard
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The authority and
responsibility vested in a school board under the several provisions of the
N.Y. Educ. Law to make tenure decisions cannot be relinquished. While a board
may legally agree to augment evaluation procedures and even to limit or to
forego its right to discharge a probationary teacher during the period of
probation, under the N.Y. Educ. Law a board cannot surrender its authority to
terminate the employment of a nontenured teacher at the end of the
probationary period. Any provision of a collective bargaining agreement which
will have that effect is accordingly unenforceable as against public policy.
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Education Law > Administration & Operation >
Boards of Elementary & Secondary Schools > Authority
Education Law > Faculty & Staff > Tenure in Elementary &
Secondary Schools > General Overview
Labor & Employment Law > Collective Bargaining & Labor Relations
> Bargaining Units
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The N.Y. Educ. Law
vests authority to make tenure decisions in the board of education, and under
the provisions of that law a nontenured teacher may be refused tenure without
reasons being given therefor. N.Y. Educ. Law §§ 2509, 2573, 3012,3013, 6206. The only exception is where it is established that the
dismissal is for constitutionally impermissible reasons or in violation of
statutory proscriptions. This responsibility, with the accompanying grant of
enabling authority, to select and screen the teaching personnel in the school
must be exercised by the board for the benefit of the pupils and the school
district and cannot be delegated or abnegated. It is beyond the power of the
board to surrender this responsibility as part of any collective bargaining
agreement.
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Education Law > Administration & Operation >
Boards of Elementary & Secondary Schools > Authority
Education Law > Faculty & Staff > Discipline & Dismissal >
Administrative Proceedings > Decisions
Labor & Employment Law > Collective Bargaining & Labor Relations
> Bargaining Units
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As a matter of
educational policy, and in the interest of maintaining adequate standards in
the classrooms, the dismissal of a probationary teacher is a matter vested by
law in the board of education upon appropriate recommendation of the district
superintendent of schools and not properly a matter for negotiation or the
application of employee grievance procedures.
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Contracts Law > Defenses > Public Policy Violations
Education Law > Administration & Operation > Boards of Elementary
& Secondary Schools > Authority
Labor & Employment Law > Collective Bargaining & Labor Relations
> Bargaining Units
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The general rule that
any matter in controversy between a board of education and its teachers may
be the subject of collective bargaining is limited by plain and clear, rather
than express, prohibitions in the statute or decisional law, as well as in
some instances by public policy, whether derived from, and whether explicit
or implicit in statute or decisional law, or in neither.
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Education Law > Administration & Operation >
Boards of Elementary & Secondary Schools > Authority
Education Law > Faculty & Staff > Tenure in Elementary &
Secondary Schools > Attainment
Labor & Employment Law > Collective Bargaining & Labor Relations
> General Overview
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The bargained-for
right to supplemental procedural steps preliminary to a board of education's
final action to grant or to withhold tenure to a teacher is not to be
rendered a nullity because of the board's right to deny tenure without explanation.
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HEADNOTES
Schools -- teachers -- collective bargaining regarding tenure.
1. A
provision of a collective bargaining agreement between the appellant teachers
association and
respondent school district prohibiting the discharge, discipline, reprimand, or
reduction in rank or compensation of any teacher without just cause is
unenforceable to the extent that it eliminates the authority of the school
board to terminate without just cause the employment of a nontenured teacher at
the end of his probationary period. Public policy implicit in the Education Law
vests authority in the board of education to make tenure decisions and
precludes collective bargaining as to those decisions. Accordingly, respondent
could terminate a teacher's employment without just cause.
2. The
right under the collective bargaining agreement to supplemental procedural
steps preliminary to a decision to grant or withhold tenure is not rendered a
nullity by the right of the board to deny tenure without explanation.
Accordingly, the reinstatement of a nontenured teacher for one year without
tenure because of a failure to follow required evaluation procedures was
proper.
3. The
award of the arbitrator was properly modified to require reinstatement without
tenure, since the authority of the school board to make tenure decisions cannot
be relinquished and the powers of the arbitrator were
limited to a direction only that the nontenured teacher be re-employed on a
nontenure basis.
COUNSEL: Richard C. Heffern and Bernard F. Ashe, Albany, for appellant.
John J. Doherty, Jr., Cohoes, for respondent.
Robert B. Conklin and Robert
M. Walker, Buffalo, amicus
curiae.
JUDGES: Chief Judge Breitel and Judges Jasen, Gabrielli
and Wachtler concur with Judge Jones; Judge Cooke dissents and votes to reverse
in a separate opinion in which Judge Fuchsberg concurs.
OPINION BY: JONES
OPINION
[*775] [**879] [***54] We hold
that HN1
a board
of education cannot relinquish its ultimate responsibility with respect to
tenure determinations and that a provision of a collective bargaining agreement
which would have that effect is unenforceable as against public policy.
In this
case, Terrance Hagen having been first employed as a teacher in September, 1971
was terminated in June of 1974, at the end of his probationary period. The
teachers association filed a grievance on Hagen's behalf asserting violation of
each [*776] of two provisions of the collective bargaining agreement between
the board of education and the association. It was claimed that the board had not followed the procedures set forth in the agreement for
evaluation of the performance of probationary teachers. The union further
charged a breach of the provision of the agreement by which the board had
agreed in paragraph I of article VII: "No teacher shall be discharged,
disciplined, reprimanded, reduced in rank or compensation or deprived of any
professional advantage without just cause."
In
accordance with the terms of the collective bargaining agreement the grievance
proceeded to arbitration. The arbitrator sustained the position of the teachers
association with respect to both issues. As to the first issue the arbitrator
found: "that there was no clear communication to Hagen of dissatisfaction
with his performance, no reasonable opportunity for him to improve that
performance, and no positive effort made to assist in improving that
performance, all in violation of the prime purpose of the evaluation procedure
of Article XI, Para. A of the collective bargaining agreement." As to the
second, the arbitrator found "that there was no 'just cause' for
terminating Hagen's employment as required by Article VII, Para. I of the
agreement." By way of remedy the arbitrator directed the school district to offer Hagen employment as a teacher for the
1974-1975 school year. Although the award contained no explicit provision to
such effect, the district and the union appear to agree that under general
principles employment of Hagen beyond the probationary period would
automatically ripen into tenure.
The
school district thereupon instituted the present proceeding under CPLR article 75 to vacate
the arbitration award, and the union cross-moved to confirm the award. Supreme
Court upheld the arbitrator but, because the 1974-1975 school year had then
passed, modified the award to provide that the fourth year of employment to be
offered Hagen would be for the school year 1975-1976. The Appellate Division
further modified by remitting the proceeding to the [***55] arbitrator with a direction to order the school district to
reinstate Hagen as a teacher for the period of one year but without tenure,
during which additional year the evaluation machinery was to be used. The
determination of the Appellate Division was predicated on its conclusion that
the powers of the arbitrator were limited to a [**880] direction
only that the nontenured teacher be re-employed on a
nontenure basis. The disposition at the Appellate [*777] Division
should be affirmed but on a somewhat broader ground than that articulated by
that court.
In our
view HN2the
authority and responsibility vested in a school board under the several
provisions of the Education Law to make tenure decisions cannot be
relinquished. While a board may legally agree to augment evaluation procedures
and even to limit or to forego its right to discharge a probationary teacher
during the period of probation, under the Education Law a board cannot
surrender its authority to terminate the employment of a nontenured teacher at
the end of the probationary period. Any provision of a collective bargaining
agreement which would have that effect is accordingly unenforceable as against
public policy. The provisions of paragraph I of article VII of the collective
bargaining agreement here, to the extent that the school board thereby
surrendered its authority to terminate a nontenured teacher without just cause
at the end of the probationary period, transgressed this principle. We affirm,
therefore, not alone on the ground that the arbitrator had no authority to
fashion the remedy which he did (as to
which we adopt the reasoning of the majority at the Appellate Division), but
also on the ground that the underlying agreement on which the arbitration award
was predicated was in part unenforceable. We find no difficulty with the
clauses of the collective bargaining agreement that augmented normal evaluation
procedures or that prohibited discharge without cause during the probationary
period. We hold, however, that to the extent that paragraph I of article VII
purported to prohibit termination without just cause at the end of the
probationary period it is unenforceable.
HN3The
Education Law vests authority to make tenure decisions in the board of
education, and there can be no doubt that under the provisions of that law a
nontenured teacher may be refused tenure without reasons being given therefor (Education Law, §§ 2509, 2573, 3012,3013, 6206). The only exception is where it has been
established that the dismissal was for constitutionally impermissible reasons
or in violation of statutory proscriptions (James v Board of Educ., 37 NY2d 891).
This
responsibility, with the accompanying grant of enabling authority, to select
and screen the teaching personnel in the school must be
exercised by the board for the benefit of the pupils and the school district
and cannot be delegated or [*778] abnegated.
Accordingly, it is beyond the power of the board to surrender this responsibility
as part of any agreement reached in consequence of collective bargaining.
"HN4As a
matter of educational policy, and in the interest of maintaining adequate
standards in the classrooms, the dismissal of a probationary teacher is a
matter vested by law in the board of education upon appropriate recommendation
of the district superintendent of schools and not properly a matter for
negotiation or the application of employee grievance procedures" (Matter of Marsh, 8 Ed Dept Rep 165). We
recognize the strong and sweeping policy of the State to support collective
bargaining under the Taylor Law (Civil Service Law, art 14). We
have sought to make it clear, however, that HN5the
general rule that any matter in controversy between a board of education and
its teachers may be the subject of collective bargaining is limited "by
plain and clear, rather than express, prohibitions in the statute or decisional
law" (Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743, 744) as well as in some instances by "[public] [***56] policy, whether derived from, and whether explicit or implicit in
statute or decisional law, or in neither". (Matter of Susquehanna Val. Cent. School
Dist. [Susquehanna Val. Teachers' Assn.], 37 NY2d 614, 616-617; cf. Matter of Union Free School Dist. v Nyquist, 38 NY2d 137, 143.) The
present is a precise instance of the latter exception. While the several
sections of the Education Law do not explicitly forbid collective bargaining [**881] with respect to ultimate tenure decisions, we hold that this
conclusion is inescapably implicit in such provisions.
We have
held, however, that HN6the
bargained-for right to supplemental procedural steps preliminary to the board's
final action to grant or to withhold tenure is not to be rendered a nullity
because of the board's right to deny tenure without explanation (Board of Educ. v Bellmore-Merrick United Secondary
Teachers, 39 NY2d 167). In the present case the
arbitrator found a failure to follow more structured evaluation procedures.
Accordingly, we see no occasion to disturb the award as modified, pursuant to
which the school district is required to reinstate Mr. Hagen without tenure for one additional year to enable the board to re-evaluate
his performance in accordance with the procedures specified in the agreement (Board of Educ. v Bellmore-Merrick United Secondary
Teachers, 39 NY2d 167, supra).
[*779] For the
reasons stated the order of the Appellate Division should be affirmed.
DISSENT BY: COOKE
DISSENT
Cooke, J.
(dissenting). The collective bargaining agreement between the Board of
Education of the City of Cohoes and the Cohoes Teachers Association provided:
"No teacher shall be discharged, disciplined, reprimanded, reduced in rank
or compensation or deprived of any professional advantage without just
cause" (art VII, par I). Far from being contrary to public policy, this
term of the agreement is consistent with and in furtherance of public policy.
Section 2509 of the Education Law, a part
of article 51, is applicable here (Education Law, § 2501). Subdivision 2 of said
section (as amd by L 1971, ch 732, eff Sept. 1, 1971) provides: "2. At the
expiration of the probationary term of any persons appointed for such term, or
within six months prior thereto, the superintendent of schools shall make a
written report to the board of education recommending
for appointment on tenure those persons who have been found competent,
efficient and satisfactory. By a majority vote the board of education may
then appoint on tenure any or all of the persons recommended by the
superintendent of schools. Such persons and all others employed in the teaching
service of the schools of such school district who
have served the full probationary period shall hold their respective positions
during good behavior and efficient and competent service, and shall not be
removable except for cause after a hearing as provided
by section three thousand twenty-a of such law. Failure to maintain
certification as required by this chapter and the regulations of the
commissioner of education shall constitute cause for removal" (emphasis
added). Thus, it is the law's express policy that there be recommended for
appointment on tenure those who have been found "competent, efficient and
satisfactory" at the expiration of the probationary term or within six
months prior thereto and, also, that those who have served the full
probationary period shall hold their positions during "good behavior and
efficient and competent service" and shall not be removable "except for cause." A contract that a teacher shall not
be discharged "without just cause", if anything, furthers the
statutory objective. Indeed, section 6 of article V of the State Constitution
requires that all appointments in the civil service of the State and its civil
divisions be made according to merit and fitness.
[*780] The
statute provides that upon the recommendation of the superintendent of [***57] schools the board of education "may" appoint those
recommended. Since the matter of appointment was within the control of the
board, it had the right to make an agreement within the statutory frame, an
agreement not to discharge without cause, and so to appoint those who were
competent, efficient and satisfactory. No attempt has been made to require the
appointment of those not competent, efficient and satisfactory, nor could there
be.
Any
thought that the board of education would be required by such an interpretation
to appoint more teachers than necessary or for whom an appropriation had not
been [**882] made, is answered by subdivision 7 of the same section which
contemplates that in such instances the board would not be required to appoint.
Said subdivision provides:
"7. Notwithstanding any other provision of this section no period in any
school year for which there is no required service and/or for which no
compensation is provided shall in any event constitute a break or suspension of
probationary period or continuity of tenure rights of any of the persons
hereinabove described." A board of education, acting in good faith and
with reasonable judgment, may abolish a teaching position held either by a
probationary or a tenured teacher (Matter of Lezette v Board of Educ., 35 NY2d 272, 278).
I
dissent, therefore, and vote to reverse. The award of the arbitrator should be
reinstated.
