We may not assume in advance of arbitration that the arbitrator will exceed his powers (see, Board of Educ. v. Barni, supra, 49 N.Y.2d, at 315; Matter of Marcellus Cent. School Dist. [Marcellus School Off. Personnel Assn.], supra). Whether the Association gave proper notice of the issue to be arbitrated is a procedural question, and is, therefore, a matter for the arbitrator to decide (see, Matter of Long Is. Lbr. Co. [Martin], 15 N.Y.2d 380, 384; see also, Matter of Belmont Cent. School Dist. v. Belmont Teachers Assn., 51 A.D.2d 653, 654; Matter of Willink v. Howard, 49 A.D.2d 683, 684).
Special Term held that the majority vote cast was sufficient. We agree with Special Term that no stay should be granted, but we conclude that the interpretation of that section is a matter of procedural arbitrability which should be left to the arbitrator (see Matter of Long Is. Lbr. Co. [Martin], 15 N.Y.2d 380; Belmont Cent. School Dist. v. Belmont Teachers Assn., 51 A.D.2d 653; Matter of Willink v. Howard, 49 A.D.2d 683).
The court reasoned that "The Association's persisting efforts here, without now observable contractual or procedural warrant, could subvert the conduct of the powers, duties and responsibilities of the Chief Education Officer and the Board of Education". In our view the questions of whether defendant Smith must personally pursue his remedy as an "aggrieved teacher", whether he is interested in pursuing his remedy to the last two stages of the grievance procedure, and whether the Association can continue the grievance on his behalf are matters for the arbitrator (Matter of South Colonie Cent. School Dist. v Longo, 55 A.D.2d 753; Matter of Willink v Howard, 49 A.D.2d 683). Special Term implicitly found that to continue with levels five and six of the arbitration agreement would be an exercise in futility because the teacher was neither dismissed nor disciplined, did not lose any wages or fringe benefits and because the arbitrator cannot under any circumstances grant the teacher tenure (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 N.Y.2d 774). It is also true, however, "that the bargained-for right to supplemental procedural steps preliminary to the Board's final action to grant or to withhold tenure is not to be rendered a nullity because of the Board's right to deny tenure without explanation" (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., supra). Such a determination by the Court of Appeals mandates that Richard W. Smith be granted the right to proceed to levels five and six of the grievance procedure, if he should so desire. Accordingly, the injunction precluding defendants from pursuing the final steps of the struct
Having determined that arbitration is the proper vehicle, the fact that the Association may not have complied with certain procedural requirements, as alleged by the School District, does not bar access to the arbitration forum. These are procedural issues of arbitrability to be decided by the arbitrator, absent express provisions to the contrary in the agreement (Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie Public School Teachers Assn.], 35 N.Y.2d 599, 607; Matter of Willink v Howard, 49 A.D.2d 683; Matter of Board of Educ. of Enlarged City School Dist. of City of Auburn, [Auburn Teachers Assn.], 49 A.D.2d 35, 38; Matter of Guilderland Cent. School Dist. [Guilderland Cent. Teachers Assn], 45 A.D.2d 85). Arbitration is properly the next step in the resolution of this controversy and the parties should proceed to it forthwith.
Order unanimously reversed, with costs, and motion denied. Same memorandum as in Matter of Willink v Howard, ( 49 A.D.2d 683).