IN RE: the Arbitration between NEWFIELD CENTRAL SCHOOL DISTRICT (1999)

Appeal from an order of the Supreme Court (Relihan Jr., J.), entered February 9, 1998 in Tompkins County, which granted petitioner's application pursuant to CPLR 7503 to stay arbitration between the parties.

In July 1997, respondent Newfield Central School Teachers Association (hereinafter respondent) filed a grievance against petitioner alleging that the latter violated the parties' collective bargaining agreement by subcontracting with the Board of Cooperative Educational Services (hereinafter BOCES) to staff various positions.   After petitioner's Superintendent denied the grievance, which was affirmed on administrative appeal, respondent filed a demand for arbitration.   Petitioner commenced this proceeding to stay arbitration (see, CPLR 7503) on the ground that the collective bargaining agreement is silent as to its right to subcontract and, therefore, the instant claim was not arbitrable.   The petition was granted by Supreme Court, prompting this appeal.

 Resolution of the instant dispute warrants application of the two-part inquiry enunciated in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 N.Y.2d 509, 399 N.Y.S.2d 189, 369 N.E.2d 746.   The first level of inquiry-whether the arbitration claim is authorized by the terms of the Taylor Law (Civil Service Law § 200 et seq.)-poses no difficulty as the instant grievance is clearly so authorized.   The second level of inquiry is whether the parties agreed by the terms of their collective bargaining agreement to submit the instant dispute to arbitration.   In our view, the issue of whether petitioner can subcontract with BOCES to staff various positions-a topic which could have been but was not required to be the subject of bargaining between the parties-falls outside the contract's arbitration provisions.   Accordingly, Supreme Court's order granting the petition to stay arbitration should be affirmed.

 In making a determination of whether an issue sought to be arbitrated falls within the ambit of an arbitration clause, this court is “to be guided by the principle that the agreement to arbitrate must be express, direct and unequivocal as to the issues or disputes to be submitted to arbitration;  anything less will lead to denial of arbitration” (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], supra, at 511, 399 N.Y.S.2d 189, 369 N.E.2d 746;  see, Matter of South Colonie Cent. School Dist. [South Colonie Teachers Assn.], 46 N.Y.2d 521, 525, 415 N.Y.S.2d 403, 388 N.E.2d 727;  Matter of South Colonie Cent. School Dist. v. Longo, 43 N.Y.2d 136, 141, 400 N.Y.S.2d 798, 371 N.E.2d 516).   Specifically, with respect to labor relations in the public employment arena, the Court of Appeals indicated that:

* * * it cannot be inferred as a practical matter that the parties to collective bargaining agreements in the public sector always intend to adopt the broadest permissible arbitration clauses.   Indeed, inasmuch as the responsibilities of the elected representatives of the tax-paying public are overarching and fundamentally nondelegable, it must be taken, in the absence of clear, unequivocal agreement to the contrary, that the board of education did not intend to refer differences which might arise to the arbitration forum.   Such reference is not to be based on implication (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist [United Liverpool Faculty Assn.], supra, at 513-514, 399 N.Y.S.2d 189, 369 N.E.2d 746 [emphasis in original] ).

 Although the arbitration clause at issue in this case is indeed broad-providing for arbitration of “any claimed violation, misinterpretation or inequitable application of this Agreement”-reference to this clause does not end the court's inquiry (see, Matter of Board of Educ. of Bedford Cent. School Dist. [Bedford Teachers Assn.], 67 A.D.2d 474, 477, 415 N.Y.S.2d 660).   Rather, this court must then look at the precise grievance being asserted and the corresponding claimed violations of the collective bargaining agreement (see, id.;   see also, Mineola Union Free School Dist. v. Mineola Teachers Assn., 46 N.Y.2d 568, 572, 415 N.Y.S.2d 797, 389 N.E.2d 111;  Board of Educ. of New Paltz Cent. School Dist. v. New Paltz United Teachers, 44 N.Y.2d 890, 892, 407 N.Y.S.2d 632, 379 N.E.2d 160).

 In its “Statement of Grievance”, respondent invoked only the recognition clause of the collective bargaining agreement, which defines the negotiation unit of which respondent is the exclusive representative, as being violated by petitioner's conduct in subcontracting with BOCES (compare, Matter of Board of Educ. of Bedford Cent. School Dist. [Bedford Teachers' Assn.], supra [teachers association alleged violations of not only recognition clause but also teacher protection and reciprocal rights provisions of the collective bargaining agreement];  Matter of Board of Educ. of Enlarged City School Dist. of City of Auburn [Auburn Teachers Assn.], 49 A.D.2d 35, 371 N.Y.S.2d 201, lv. denied 38 N.Y.2d 740, 381 N.Y.S.2d 42, 343 N.E.2d 760 [teachers association alleged violations of not only recognition clause but also salary, cooperation and joint code of ethics provisions of the collective bargaining agreement] ).   The collective bargaining agreement at issue here is totally silent on the issue of petitioner's participation in BOCES programs or authority to subcontract in general (compare, Matter of Watkins Glen Cent. School Dist. [Watkins Glen Faculty Assn.], 212 A.D.2d 34, 628 N.Y.S.2d 824 [collective bargaining agreement between parties contained provision prohibiting school district from subcontracting teaching assignments] ).

 Significantly, whether and to what extent a school district utilizes the resources available through BOCES is a permissible, although not mandatory, subject of negotiation (see, Matter of Webster Cent. School Dist. v. Public Empl. Relations Bd. of State of N.Y., 75 N.Y.2d 619, 555 N.Y.S.2d 245, 554 N.E.2d 886).   Since a school district's decision to subcontract with cooperative educational programs is not subject to mandatory collective bargaining, it is not surprising that the contract makes no reference to subcontracting.   Accordingly, it makes little sense to require petitioner, under the guise of a broad arbitration clause, to arbitrate a provision it is not even required to negotiate.   In the absence of a valid and specific agreement between the parties evincing an intent to arbitrate claims arising out of subcontracting with BOCES, petitioner's application to stay arbitration was properly granted (see, Matter of Board of Educ. of Port Jefferson Union Free School Dist. v. Port Jefferson Teachers' Assn., 243 A.D.2d 468, 663 N.Y.S.2d 69, lv. denied 91 N.Y.2d 814, 676 N.Y.S.2d 127, 698 N.E.2d 956;  Matter of Western v. MacKenzie, 187 A.D.2d 1000, 593 N.Y.S.2d 474, lv. denied 81 N.Y.2d 707, 597 N.Y.S.2d 937, 613 N.E.2d 969;  County of Rockland v. Rockland County Unit of Rockland Community Coll. Fedn. of Teachers of N.Y. State United Teachers, 125 A.D.2d 531, 532, 509 N.Y.S.2d 608).

Respondent's remaining contentions have been reviewed and found to be unpersuasive.

ORDERED that the order is affirmed, with costs.

I respectfully dissent.

For a public employment dispute to be arbitrable, it is not necessary that the parties have specifically addressed its subject matter and specifically agreed to arbitrate it.   Rather, the focus must be solely upon the language of the parties' arbitration clause, and whether or not it extends to the particular dispute.   The court's function is limited to determining whether arbitration of the particular subject matter is authorized under the Taylor Law and, if so, whether by the terms of their arbitration clause the parties agreed to submit the dispute to arbitration.   While conceding that the arbitration clause herein is broad enough to encompass the instant dispute, the majority claims that this finding does not end their inquiry.   Rather, they assert, the court must look at the precise grievance being asserted and the corresponding provision of the agreement allegedly being violated.   Having done so, they conclude that because the issue of petitioner's right to subcontract with BOCES is not addressed in the agreement, any claim that the District violated the agreement by doing so is not arbitrable.   I believe this analysis is diametrically contrary to the dictates of controlling case law.

The majority heavily relies on the language in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 N.Y.2d 509, 399 N.Y.S.2d 189, 369 N.E.2d 746, that “an agreement to arbitrate must be express, direct and unequivocal as to the issues or disputes to be submitted to arbitration” (id., at 511, 399 N.Y.S.2d 189, 369 N.E.2d 746).   In subsequent decisions, however, the Court of Appeals has consistently made it clear that the decision in Liverpool (which involved an “explicitly limited” arbitration clause) is not to be read as permitting a stay of arbitration where “the parties' agreement to arbitrate the dispute is clear and unequivocal but there is some ambiguity as to the coverage of the applicable substantive provision of the contract” (Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v. Barni, 49 N.Y.2d 311, 314-315, 425 N.Y.S.2d 554, 401 N.E.2d 912).   Indeed, the court observed that:

It begs the question to contend * * * that the grievance is not arbitrable because it involves a dispute that is not unambiguously encompassed by an express substantive provision of the contract.   The question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator * * * (id., at 314, 425 N.Y.S.2d 554, 401 N.E.2d 912 [emphasis supplied] ).

(See, Matter of Franklin Cent. School [Franklin Teachers Assn.], 51 N.Y.2d 348, 355, 434 N.Y.S.2d 185, 414 N.E.2d 685;  Mineola Union Free School Dist. v. Mineola Teachers Assn., 46 N.Y.2d 568, 572, 415 N.Y.S.2d 797, 389 N.E.2d 111;  see also, Matter of Board of Educ. of Watertown City School Dist. v. Watertown Educ. Assn., 74 N.Y.2d 912, 913, 549 N.Y.S.2d 652, 548 N.E.2d 1303;  Matter of County of Sullivan [Sullivan County Empls. Assn.], 235 A.D.2d 748, 652 N.Y.S.2d 371;  Matter of Board of Educ. of Gowanda Cent. School Dist. [Gowanda Cent. School Non-Teaching Personnel Assn.], 202 A.D.2d 1048, 610 N.Y.S.2d 414, lv. denied 84 N.Y.2d 813.)   Where the “parties' agreement to arbitrate is clear and unequivocal, [but] there exists some dispute as to the coverage of the substantive provisions of the contract, this dispute is for the arbitrator to resolve * * *.  * * *.   By focusing solely on the separate terms of [another agreement involved in the dispute], instead of simply resolving whether the dispute fell within the scope of the arbitration provision of the collective bargaining agreement, Supreme Court improperly injected itself into the determination of the underlying merits of this arbitrable contract dispute” (Matter of Board of Educ. of Watertown City School Dist. v. Watertown Educ. Assn., supra, at 913-914, 549 N.Y.S.2d 652, 548 N.E.2d 1303 [citations omitted] ).

Based upon what I believe to be the extent of our permissible inquiry, I would find that the instant dispute falls within the scope of the parties' broad arbitration clause, which extends to all “claimed violations” thereof, and hold that the matter should be resolved by arbitration.

CARPINELLO, J.

CREW III, YESAWICH JR. and PETERS, JJ., concur