Originally from Dispute Resolution Journal

LABOR — PUBLIC SECTOR — ARBTTRABILIT — TAYLOR LAW — SCOPE OF ARBITRATION CLAUSE

The New York State Court of Appeals held that with respect to public sector arbitration under the authority of the Taylor Law it is for the court rather than the arbitrator to determine the question of arbitrability. The dispute arose when a female teacher who had been on sick leave was required to submit to a complete phyrical by the school district's male physician before being allowed to return to school. The teacher took the position that she would only submit to a physical by a female physician. She was placed on leave without pay until the matter was resolved. The faculty association demanded arbitration and the school district applied for a stay of arbitration which was granted by Special Term. The court reasoned that in the public sector the determination of whether or not there was a valid agreement to arbitrate must proceed on two levels. First, it must be determined whether the subject matter of arbitration is authorized by the Taylor Law. The court concluded that there was nothing in statute, decisional law or public policy which would preclude the Board of Education from agreeing to refer this type of dispute to arbitration. The second level of analysis involves determining whether or not by the language employed by the parties it can be said that they intended to submit this dispute to arbitration. The clause in question was not a broad arbitration clause but was a limited one. The clause listed disputes which were included as well as those which were expressly excluded from arbitration. The court, while noting that the controversy may fall within both the included sod excluded categories held that "in this circumstance, we cannot conclude that the present dispute falls clearly and unequivocally within the class of claim agreed to be referred to arbitration." Therefore, the court held that the school district's application to stay arbitration was properly granted.

Liverpool Central School District v. United Liverpool Faculty Association, No. 464, decided October 18, 1977 (N.Y. Court of Appeals 1977).