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.
" 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.
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.
However, the award neither subjectively determined that Howell was the most qualified candidate, nor otherwise infringed upon the District's authority to determine whether Howell was qualified at all ( cf., Matter of Meehan v Nassau Community Coll., 152 AD2d 313; cf., Matter of Riverhead Cent. School Dist. v Riverhead Cent. Faculty Assn., 140 AD2d 526; cf., Matter of Three Vil. Teachers'Assn. v Three Vil. Cent. School Dist., 128 AD2d 626). Rather, the arbitration award gives effect to that provision of the parties' collective bargaining agreement which provides a preference to certified, excessed members of the bargaining unit. Similar provisions have been given effect by the Court of Appeals, as well as this Court ( see, Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 746, 748; Matter of Board of Educ. v Port Jefferson Sta. Teachers' Assn., 212 AD2d 785, 786). The District has failed to sustain the heavy burden borne by one seeking vacatur of an arbitration award on public policy grounds.
This decision must be made by their trained representatives and not by an arbitrator. The Court of Appeals decision in Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn. ( 45 N.Y.2d 746) is not to the contrary. There the arbitrator applied an objective test to applicants equally qualified for the position of wrestling coach, not a classroom position.