Opinion
January 21, 1977
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Moule, Simons, Goldman and Witmer, JJ.
Order unanimously reversed, with costs, and motion granted. Memorandum: The collective bargaining agreement provided that no professional staff member, tenured or nontenured, "shall be * * * dismissed without just cause". Respondent Kepp, a probationary teacher, was dismissed at the end of his probationary period. He asserted a grievance and demanded arbitration. His only complaint appears to be that he was denied tenure, for he has not alleged any other reason for arbitration. For this reason petitioner claims that the demand for arbitration must be stayed; and we agree. We recognize, of course, that any dispute under a contract containing a clause for arbitration is presumptively arbitrable (Steelworkers v American Mfg. Co., 363 U.S. 564; Matter of Board of Educ. [Auburn Teachers Assn.], 49 A.D.2d 35, 38) and that whenever there is an arbitrable issue, an arbitrator should be given the opportunity to render a lawful award (see Matter of Niagara Wheatfield Admin. Assn. v Niagara Wheatfield Cent. School Dist., 54 A.D.2d 498). Nevertheless, in the absence of a specific allegation of an issue to be arbitrated we find no justification for subjecting the parties to the expense and trouble of an arbitration proceeding. It is against public policy for a school board to relinquish "its authority to terminate the employment of a non-tenured teacher at the end of the probationary period", and so the question of the termination of respondent Kepp at the end of his probationary term, "without just cause", is not a subject for arbitration (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 N.Y.2d 774, 777; Matter of Niagara Wheatfield Admin. Assn. v Niagara Wheatfield Cent. School Dist., supra; Matter of Morris Cent. School Dist. Bd. of Educ. v Morris Educ. Assn., 54 A.D.2d 1044; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 52 A.D.2d 400).