In re the Arbitration between New York State Office of Children & Family Services & Lanterman

Stein, J. (dissenting).

Because we are of the opinion that respondent Lauren Lanterman is entitled to arbitrate whether the disciplinary process under the collective bargaining agreement (hereinafter CBA) applies to her termination for failure to maintain her teaching certification, we respectfully dissent.

The Court of Appeals has articulated that “the public policy exception to an arbitrator’s power to resolve disputes is *1116extremely narrow” (Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 80 [2003]). Likewise, a stay of arbitration is an extreme remedy which should only be granted where there is no possibility that the arbitrator could fashion any remedy not in violation of public policy (see Matter of Committee of Interns & Residents [Dinkins], 86 NY2d 478, 484 [1995]). Moreover, preemptive intervention—to prevent the possibility that a particular remedy might be imposed that would violate public policy—is improper (see id. at 484).

While it is unquestionably in the public interest to ensure the competence of teachers in the public school system, we disagree with the majority’s conclusion that allowing an arbitrator to determine the remedy for Lanterman’s failure to maintain the necessary certification for her position would constitute an improper delegation of the authority of the State Education Department (hereinafter SED) to establish and enforce the qualifications for teachers in facilities of petitioner Office of Children and Family Services (hereinafter OCFS) and of OCFS’s duty to ensure that teachers are properly certified. We do not suggest that Lanterman—or any other employee—should be permitted to serve in a position for which she does not meet the minimum qualifications.1 However, inasmuch as an arbitrator could, after considering all relevant factors, potentially fashion a remedy other than termination—including, as respondents suggest, a suspension without pay2 or demotion to another open position for which a teaching certificate was not required or some other possible remedy—that would not violate either the CBA or the public policy in favor of assuring the qualification of teachers (see Matter of State of N.Y., N.Y. State Dept. of Agric. & Mkts. [Public Empls. Fedn.], 277 AD2d 564, 566 [2000]; see generally Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d at 81), the public policy exception should not apply.

Contrary to the implied concern of petitioners and the majority, permission to arbitrate would not require the arbitrator to impose an alternative remedy—it would only permit the arbitrator to do so if, under all the facts and circumstances, the arbitra*1117tor deemed it appropriate.3 Nor would permission to arbitrate confer upon the arbitrator the authority to allow Lanterman to teach without proper certification or to fashion a remedy which would otherwise violate SED regulations or state law (see generally Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d at 81). We are of the view that this is not a case where the granting of any relief would violate public policy (cf. Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 519, 521 [2007]; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, 282-283 [2000]) and that the majority here simply overlooks the possibility that an alternative remedy exists which would not be violative of public policy, statutes or regulations. Thus, in our opinion, a stay of arbitration is an inappropriate exercise of preemptive intervention.

Turning next to the question of whether the parties agreed to arbitrate this particular dispute and bearing in mind the broad public policy in favor of arbitrating public sector employment disputes (see Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 7 [2002]), we must only ascertain “whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA” (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 143 [1999]). Furthermore, as noted above, there is an important distinction between a determination regarding the merits of respondents’ grievance and the threshold question of whether the authority to decide the merits resides with the court or with an arbitrator (see CPLR 7501). The sole issue for our determination herein is the latter, i.e., whether Supreme Court properly concluded that the issues raised in respondents’ grievance are reviewable under the contract arbitration clause set forth in article 34 of the CBA.

*1118In our view, the dispute here concerns the interpretation, application or a claimed violation of article 33 of the CBA—specifically, whether it applies to the termination of an employee for failure to maintain required certification—and unequivocally falls within the broad provisions of article 34. It is, therefore, the province of an arbitrator to determine whether article 33 was intended to “modify, supplement, or replace the more traditional forms of protection afforded public employees ... in section[ ] 75 . . .of the Civil Service Law” (Dye v New York City Tr. Auth., 88 AD2d 899, 899 [1982], affd 57 NY2d 917 [1982]) so as to encompass within the definition of “discipline” action taken against an employee due to the loss of required certification—thus, triggering the procedures of article 33 (see Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d at 142-143).4

Inasmuch as we agree with Supreme Court’s determination that no constitutional, statutory or public policy prohibition ex-, ists to arbitrating the issue of whether the disciplinary procedures set forth in article 33 of the CBA apply to Lanterman’s termination for lack of appropriate certification and with the court’s conclusion that such arbitration is authorized by the CBA, we would affirm.

. Indeed, there is no question that Lanterman possessed the necessary provisional certification when she was hired or that, after her termination, she obtained her full certification.

. Notably, Lanterman was on maternity leave from the date her certification expired to the date of her termination. Thus, she was not actively teaching during that time.

. The majority’s suggestion that anything other than termination would be inappropriate begs the question of whether that determination should be made by the court or by an arbitrator. In fact, as the majority notes, it appears from the record that OCFS did not deem it to be a violation of public policy to give Lanterman at least one opportunity to obtain her certification after her provisional certification expired and to continue her employment for a period of time beyond such expiration. In our view, it is not for this Court to speculate, as the majority does, regarding whether another position exists for which Lanterman is qualified. The question before us—which we would answer in the affirmative—is simply whether an arbitrator should be permitted to determine when and if other remedies are no longer suitable and termination is appropriate.

. Matter of Felix v New York City Dept. of Citywide Admin. Servs. (3 NY3d 498 [2004]) is clearly distinguishable. In that case, there was no collective bargaining agreement. More importantly, it involved a statutory residency requirement—with which the subject employee admittedly failed to adhere— which explicitly provided for an automatic forfeiture of employment in the event the residency requirement was not met.