Board of Education of the City School District v. United Federation of Teachers, Local No. 2 , 60 A.D.2d 601 ( 1977 )

In a proceeding pursuant. to CPLR 7503 to permanently stay arbitration, the petitioner appeals from an order of the Supreme Court, Kings County, dated February 23, 1977, which denied the petition and directed the parties to proceed to arbitration under their collective bargaining agreement. Order reversed, on the law, with $50 costs and disbursements, and application to stay arbitration granted. The clause in the collective bargaining agreement under which the parties were ordered to arbitrate has the effect of giving teachers who have been placed on probation for engaging in an illegal strike in violation of the Taylor Law (see Civil Service Law, § 210, subd 2, par [f]) the pretermination review rights of tenured teachers (see Education Law, § 2590-j, subd 7), including the right to a full hearing. These rights differ from the pretermination rights of nonteacher probationary public employees (Civil Service Law, § 63; 4 NYCRR 4.5), who do not have the same right to a hearing. Insofar as the rights of probationers under the collective bargaining agreement "differ from” the rights of probationers under the Civil Service Law, the agreement contravenes section 210 (subd 2, par [f]) of the Civil Service Law, which states, in part: "the effect of probation hereunder with regard to teachers and others subject to the education law shall not exceed or differ from the effect of probation hereunder with regard to other public employees.” Therefore, in view of the public policy of deterring strikes by public employees by weakening their pretermination rights, this clause of the collective bargaining agreement cannot be a subject of arbitration (see Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.] 37 NY2d 614). Cohalan, J. P., Margett, Damiani and Shapiro, JJ., concur.