The employer voluntarily negotiated job security (tenure) provisions thereby limiting its own discretion in layoff situations. ( Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ], 90 NY2d 364; Matter of Heslin v City of Cohoes, 74 AD2d 393; Matter of Niagara Wheatfield Adm'rs Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 746; Matter of Marcellus Cent. School Dist. [Marcellus School Off Personnel Assn.], 477 AD2d 935; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268; Board of Educ., Bellmore-Merrick Cent. High School Dist., Nassau County v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of Associated Teachers of Huntington v Board of Educ., Union Free School Dist. No. 3, Town of Huntington, 33 NY2d 229; Board of Educ of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Matter of Burke v Bowen, 40 NY2d 264.) Corey E. Klein, Corporation Counsel, Long Beach, for respondent. I.
No precedent of this Court suggests that a public employer may not voluntarily bargain with respect to the exercise of such discretion. On the contrary, this Court has concluded that a municipal employer may agree to give preference for the filling of vacancies to certain individuals without offending public policy ( Matter of Port Wash. Union Free School Dist. v Port Wash. Teachers Assn., 45 N.Y.2d 746; Matter of Apuzzo v County of Ulster, 98 A.D.2d 869, affd 62 N.Y.2d 960, supra). Indeed, the dispositive point here is that the limitation on the Board's discretion was the result of "a voluntary surrender by the appointing authority of the full range of possibilities available to it for the duration of the contract period" ( Matter of Heslin v City of Cohoes, 74 A.D.2d 393, 399-400 [Herlihy, J., dissenting], revd for reasons stated in dissenting opn of Herlihy, J. 53 N.Y.2d 903, supra).
The cases cited by Plaintiff indicate that an employer can make this preferential policy more explicit in the CBA, but they do not say that it is necessary an employer does so. (Pl.'s Mem. 11.) See Hill v. Kaleida Health, No. 07-CV-668S, 2009 WL 3672066, at *2 n.7 (W.D.N.Y. Oct. 30, 2009) (noting that "[u]nder [the defendant']s Collective Bargaining Agreement, priority is given to 'internal' applicants" but not actually quoting the full Agreement language); Port Washington Union Free Sch. Dist. v. Port Washington Teachers Ass'n, 380 N.E.2d 310, 311 (N.Y. 1978) ("The collective bargaining agreement at issue in this case provided that preference for the filling of vacancies or new positions be given to members of the Port Washington instructional and administrative staffs when the qualifications of applicants were substantially equal."). Plaintiff's next argument—that Policy No. 4120 requires that positions be offered first to persons on the Civil Service List—fares no better. (Pl.'s Mem. 12.)
" Id. at 172-73 (quoting Port Washington Union Free Sch. Dist. v. Port Washington Teachers Ass'n, 45 N.Y.2d 746, 748, 380 N.E.2d 310, 311 (1978)). [¶ 9] Here, the Committee makes similar arguments.
Cape Elizabeth School Bd. v. Cape Elizabeth Teachers Ass'n, 459 A.2d 166, 172-173 (Me. 1983). Port Washington Union Free School Dist. v. Port Washington Teachers Ass'n, 45 N.Y.2d 746, 748 (1978). The school committee further contends that since the judicial standard of review of the decision of a school committee is strictly limited, the arbitrator's authority is equally narrow.
This, however, is a contingency which should have been considered at the bargaining table." Port Washington Union Free School District v. Port Washington Teachers Association, 45 N.Y.2d 746, 748, 380 N.E.2d 310, 311, 408 N.Y.S.2d 484, 485 (1978). Even if the Board's argument represents more than an attempt to escape the consequences of a now-unpalatable decision, we must nonetheless reject it.
Even if article XVI could be construed in the unusual manner petitioner submits, public policy would prevent its enforcement. While a municipal employer may agree to provide preference for the filling of vacancies to certain individuals (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 N.Y.2d 746), it may not surrender its ultimate appointing authority (see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 N.Y.2d 774, 778). Similarly, whereas there is no prohibition against the establishment of a limited job security clause in a collective bargaining agreement (Matter of Board of Educ. v Yonkers Federation of Teachers, 40 N.Y.2d 268, 271), public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination.
Having participated in the arbitration proceeding, the board may not subsequently move to vacate the award on the ground that the matter arbitrated was not arbitrable (Rochester City School Dist. v Rochester Teachers Assn., 41 N.Y.2d 578, 583; see, also, Matter of Yonkers Federation of Teachers v Board of Educ., 46 N.Y.2d 725). There is no merit to appellant's argument that public policy has somehow been contravened by the arbitrator's award (Matter of Port Washington Union Free School Dist. v Teachers Assn., 45 N.Y.2d 746). Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
However, even if the possibility existed that the arbitrator may have violated the CBA's express limitation that the exception should be invoked only "rarely," vacatur of the award would still be improper ( see Matter of Silverman [Benmor Coats], 61 NY2d at 308-309; Matter of Tilbury Fabrics v Stillwater, Inc., 56 NY2d 624, 627; Matter of West Side Lofts [Sentry Contr.], 300 AD2d 130). Similarly, as the Court of Appeals has explained in the context of school districts, "[s]urrender of the power, or part of it, to the courts or arbitrators in collective bargaining agreements may later prove to be inconvenient" ( Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583; see Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 746). However, the remedy for such perceived inconvenience is found at the bargaining table, not in the courts ( see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d at 584).
The foregoing is not meant to suggest that a collective bargaining agreement may not require that the most senior qualified teacher within the bargaining unit be given preference in filling an open position. Such seniority provisions are, of course, fully enforceable (see, e.g., Matter of Port Washington Union Free School Dist. v. Port Washington Teachers Assn., 45 N.Y.2d 746, 747-748); Meehan v. Nassau Community Coll., 242 A.D.2d 155, 159, lv dismissed 92 N.Y.2d 946). In the case before us, however, the parties' Agreement did not contain any seniority provision applicable to Project Read, as the arbitrator herself acknowledged.