Opinion
August 17, 1987
Appeal from the Supreme Court, Westchester County (Stolarik, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
In January 1984 the Board of Education of the Yonkers Public Schools notified certain teachers, including the petitioners, that their positions would be abolished on January 15, 1985. The Yonkers Federation of Teachers, on behalf of these teachers, thereafter filed a grievance and ultimately demanded arbitration. The issue submitted to, and decided by the arbitrator, was whether the specified teachers, including the petitioners, were in fact the least senior among the holders of the positions to be abolished. In an opinion and award dated March 29, 1985, the arbitrator rejected the petitioners' argument that they should be considered as being included within a broad tenure area designated as "Health, Trade Technical". The arbitrator accepted the contrary view that each petitioner was a member of a much more narrowly defined tenure classification, to wit, that the petitioners Riordan and Alpuche were properly considered as "Teacher[s] of Practical Nursing" or "Nurse Teacher[s]", and that the petitioner Minnella was properly considered as being within the tenure area of "Textiles Production and Fabrication (Clothing Trade)".
Based on his determination that the petitioners were the least senior of the teachers occupying positions within those narrow tenure areas, the arbitrator upheld the action of the Board in notifying the petitioners that they would be dismissed on January 15, 1985. The petitioners were, in fact, dismissed effective April 4, 1985, a few days after the arbitrator rendered his opinion and award.
By notice of petition dated July 31, 1985, the petitioners commenced this proceeding pursuant to CPLR article 78, demanding their reinstatement. The Board cross-petitioned to confirm the arbitrator's award. The Supreme Court, by order dated March 2, 1986, confirmed the award, and, finding that the arbitrator's award was conclusive as to the issue of whether the petitioners were properly dismissed upon the abolition of their positions, dismissed the first two causes of action asserted in the petition. We agree that this was correct.
The petitioners originally invoked the arbitration process. Having voluntarily participated in the arbitration, the petitioners may not now claim that the dispute concerning the scope of their tenure areas in connection with their rights under Education Law § 2510 (2) was not arbitrable (see, Rochester City School Dist. v. Rochester Teachers Assn., 41 N.Y.2d 578, 583). There is, in any event, authority for the proposition that such a dispute is arbitrable (see, Board of Educ. v. Portville Faculty Assn., 96 A.D.2d 739; see also, Board of Educ. v. Glaubman, 53 N.Y.2d 781). Further, since the arbitrator's award cannot be described as totally irrational (see, Maross Constr. v. Central N Y Regional Transp. Auth., 66 N.Y.2d 341, 346), it should be upheld. Far from being irrational, the arbitrator's award is strongly founded upon evidence that the "Health, Trade Technical" classification was never treated as a functional tenure area. Thus, the arbitrator's award was properly confirmed.
In their CPLR article 78 proceeding, the petitioners made certain allegations which were not passed upon by the arbitrator. The petitioner Minnella alleged that her position was, in effect, never eliminated, that she herself performed the duties which comprised her former position on a per diem basis after April 4, 1985, and that another teacher later undertook duties substantially similar to those which were included in Minnella's original position. The petitioners Alpuche and Riordan advance similar claims. No final judgment was rendered by the court with respect to these allegations; instead, the court directed that a hearing be held in connection with those allegations. The Board was granted leave to cross-appeal from this portion of the court's order (see, CPLR 5701 [c]), and now argues that no material issue of fact was presented, and thus no hearing is warranted. We disagree.
The verified pleadings and other affidavits submitted by the parties contain conflicting assertions as to the nature of the positions previously filled by the petitioners, whether such positions were in fact eliminated, and whether other less senior teachers have been hired to fill such positions. Accordingly, the order should be affirmed. Niehoff, J.P., Weinstein, Rubin and Kooper, JJ., concur.