In re the Arbitration between Granville Central School District (114 A.D.2d 626, 1985)

Yesawich, Jr.,

J. Appeal from an order of the Supreme Court at Special Term (Cerrito, J.), entered December 12, 1984 in Washington County, which denied petitioner’s application pursuant to CPLR 7503 to stay arbitration between the parties.

In February 1983, petitioner received several reports from parents that Charles Jay, a school bus driver, had sexually molested young girls riding his bus. A hearing conducted in accordance with Civil Service Law § 75 was held April 19, 1983; the hearing officer found that the evidence supported the misconduct charges which had been leveled against Jay and recommended his discharge.

Before the hearing, Jay’s union, respondent Granville Non-Instructional Employee’s Association (hereinafter respondent), in accordance with its collective bargaining agreement with petitioner, had filed a grievance claiming that petitioner lacked "just cause” to discharge Jay. On April 14, 1983, petitioner and respondent agreed in writing that the matter would: "be adjourned pending the disposition of the criminal charges preferred against Mr. Jay. At that time the Association is free to either file or not file for arbitration under the Collective Bargaining Agreement.” The last of the criminal charges pending against Jay was dismissed on June 15, 1984. Approximately three weeks later, respondent demanded arbitration of its grievance. Petitioner thereupon commenced this proceeding to permanently stay arbitration. Denial of petitioner’s application by Special Term prompted this appeal.

Initially, petitioner urges that Jay’s participation in the Civil Service Law § 75 hearing and failure to appeal therefrom pursuant to Civil Service Law § 76 constitutes a waiver of his right to arbitration. This argument would have force were it not for the fact that collective bargaining agreements may supplement or modify an employee’s rights under Civil Service Law §§ 75 and 76 (see, Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Employees, AFL-CIO v Helsby, 62 AD2d 12, 15-17, affd 46 NY2d 1034). That occurred here, for the collective bargaining agreement arords those believing themselves aggrieved by petitioner’s a