Opinion
April 19, 1971
In a proceeding to stay arbitration which had been demanded by respondent Clarkstown Teachers' Association, petitioner appeals from an order of the Supreme Court, Rockland County, entered August 20, 1970, which denied the application, granted respondents' cross motion to compel arbitration, directed petitioner to proceed to arbitration and enjoined petitioner from commencing or prosecuting any action with respect to the dispute ordered to be arbitrated. Order affirmed, with $10 costs and disbursements. In September, 1969 petitioner entered into a collective bargaining agreement with respondent Clarkstown Teachers' Association effective July 1, 1969 to June 30, 1970. Paragraph (a) of article XVI of the agreement contained a provision relative to class size which read as follows: "Maximum Class Sizes — Facilities permitting, for the maximum teacher effectiveness and pupil involvement class sizes will be no larger than (25) twenty-five on the elementary and (27) twenty-seven on the secondary levels." The agreement also included an extensive grievance procedure in article XXIII, which contained four separate stages. The fourth and final stage was the arbitration stage which in part stated: "The decision of the arbitrator shall be final and binding only with respect to grievances concerning the interpretation or application of the specific terms of this Agreement; provided that binding arbitration shall not be had for any grievance concerning provisions of this contract that involve the Board's discretion or right to set policy. In grievances other than those covered in the above sentence, while the decision shall be advisory, each side will have a moral obligation to seriously consider the recommendation." On January 20, 1970, the Teachers' Association duly served a notice of intention to arbitrate an alleged grievance relating to "Maximum Class Sizes" which remained unresolved after completion of the first three stages of the grievance procedure. In its petition in this stay proceeding petitioner contended that the provisions of the agreement excerpted above bound it to so-called "advisory arbitration" and not "binding arbitration." Its position is that article 75 of the CPLR does not empower a court to direct parties to arbitrate a dispute which results in an award which can only be advisory in nature. The Teachers' Association cross-moved to compel arbitration. In our opinion, it is no longer necessary, as it was under section 1448 of the Civil Practice Act, that a contractual dispute be of a justiciable nature before arbitration will be ordered. Such limitation has been expressly removed by the Legislature in its enactment of CPLR 7501 which reads: "A written agreement to submit any controversy * * * is enforceable without regard to the justiciable character of the controversy". We can see no compelling reason why article 75 of the CPLR should not be applicable to "advisory arbitration" if that is what the parties intended. Arbitration is a creature of contract and its scope can be very broad or very narrow, depending on the provisions of the contract. At bar, the parties have agreed to submit their disputes to arbitration although additionally agreeing to limit the impact of the arbitrator's award to that of merely an advisory nature in some instances. We do not now decide whether the posed grievances are subject to an arbitration decision which is binding. Rabin, P.J., Hopkins, Munder, Martuscello and Shapiro, JJ., concur.