Collective bargaining agreement cannot provide provisional employees tenure

Collective bargaining agreement cannot provide provisional employees tenure
City of Long Beach v Civil Service Employees Association, Inc., Long Beach Unit, 8 N.Y.3d 465 [Judge Kaye and Judge Ciparick dissenting in part]

In March 2004, the New York State Civil Service Commission criticized the City of Long Beach for its poor control over provisional appointments in the classified service. The Commission noted that “a number of competitive class positions had been improperly filled with and retained by provisional employees; at least one for as long as 19 years.”

Following this, Long Beach advised a number of employees serving as provisional appointees that it believed that they were serving in a provisional capacity beyond the statutorily prescribed time.[1] These employees were provided with an opportunity to meet with Long Beach officials to discuss their employment status prior to the City’s taking any final employment action. Ultimately, Long Beach determined that the continued employment of certain provisional employees violated applicable the civil service law and regulations and terminated them.

CSEA filed grievances on behalf of the terminated provisional employees. CSEA alleged that pursuant to the terms of its collective bargaining agreement [CAB] with Long Beach, these provisional employees were “tenured” and thus entitled to be rehired in another position. According to CSEA, the following provisions in the CAB controlled:[2]

Section 6-1.0 - Definition of Tenure
Employees with one (1) year of service in the annual employment of the City, regardless of classification, will be deemed tenured employees. This period of tenure is to be computed retroactively and only employees enumerated in Section 2-1.0 shall be deemed non-tenured.

Section 6-1.1 - Rights of Tenured Employees
All tenured employees will be protected from separation from employment with the City for any reason other than (a) voluntary withdrawal; (b) dismissal for disciplinary reasons after a hearing pursuant to Section 75 of the Civil Service Law; (c) provisional employees in the competitive class will be protected by tenure with the exception that their employment may be terminated pursuant to Civil Service Law should it be necessary pursuant to Civil Service Law to appoint a qualified candidate from a Civil Service eligible list to their position. In that event, the displaced employee will be transferred by the City to another position in the City for which he/she qualifies, should such a position be open. A position will be deemed open if it was vacated within six (6) months of a tenured provisional employee’s displacement by a candidate from an eligible list certified by the Civil Service Commission.”

In response to CSEA’s demand for arbitration, Long Beach filed a petition in an effort to get a court order staying arbitration.

Supreme Court granted the City’s petition, holding that the CAB’s provisions providing for grievance and arbitration are not enforceable due to the provisional status of the employees. The Appellate Division agreed, ruling that “[b]ecause the provisions of the parties’ collective bargaining agreement upon which [CSEA] relies have the effect of limiting [Long Beaches’] ability to discharge provisional employees, those provisions are against public policy and unenforceable as a matter of law” (see Long Beach v CSEA, 29 AD3d 789 at 790).

The Court of Appeals affirmed the rulings by the two lower courts, noting that “the central issue in this case is whether the subject claims are arbitrable under the terms of a Collective Bargaining Agreement (CBA) between the parties.”

The Court of Appeals noted that although the general rule in such cases is that the “public policy in this State favors arbitral resolution of public sector labor disputes”, a dispute is not arbitrable when the subject matter of the dispute violates a statute, decisional law or public policy.

Here, said the court, the issue for which arbitration is demanded “is not arbitrable because granting the relief sought on behalf of the provisional employees under the so called ‘tenure’ provisions of the CBA would violate the Civil Service Law and public policy.”

Noting the State Constitution’s mandates that civil service appointments and promotions “shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive” (NY Constitution, Article V, Section 6), the Court of Appeals said that with respect to provisional appointments: “the Civil Service Law authorizes such appointments only when there is no eligible list available for filling a vacancy in a competitive class, and then only for a maximum period of nine months.”

The court also pointed out that Section 65.2 requires that in the event a provisional employee has been in a position for one month, the jurisdiction must hold a civil service examination for permanent appointment to the position.

As to the provisions set out in the CAB, the court said that: “The statutory scheme contained in Section 65 by its very terms prohibits any right of tenure to provisional employees. Properly construed, the Civil Service Law renders the provisions of the CBA upon which CSEA relies meaningless.”

The opinion then continues:

“We have long held that appointments made pursuant to Civil Service Law §65 carry no expectation nor right of tenure (see Montero, 68 NY2d 253; Hilsenrad v Miller, 284 NY 445 [1940]; Koso v Green, 260 NY 491 [1932]). Provisional employees “though in a sense holding positions in the competitive class, are, for reasons of necessity, exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by a period of tenure under the [Civil Service Law]” (Koso, 260 NY at 495). Such appointments “are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions” and “[w]hile such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment” (id. at 496). “

Significantly, the Court of Appeals held that the appointing authority cannot agree to provide superior rights to provisional employees holding positions beyond that statutory time period. Accordingly, said the court, “… the provisions under the CBA are unenforceable as a matter of law ….”

The court explained that “The failure to administer timely examinations prevents the identification and hiring of qualified candidates from eligible lists, as required by the Civil Service Law, and misleads provisional appointees into having expectations of continued employment beyond that permitted by law.”

As the terms of the CBA that attempted to provide “tenure rights to provisional employees after one year of service” such a provision is contrary to statute and decisional law and thus an arbitrator may not grant any relief pursuant to such a provision.

Judge Kaye, in her dissent, agreed that “an arbitrator may not rely on the portion of the CBA that purports to grant tenure to provisional employees after one year of service (section 6.1-0), or on the section that prohibits termination until and unless the City appoints from an eligible list (section 6-1.1[c]), and a stay should be granted with regard to arbitration of section 6.1-0 and the first part of 6-1.1.”

She, however, concluded that “the second component of the bargained-for section 6-1.1 (c) — that a displaced provisional worker will be transferred into an open position for which he or she is qualified — is arbitrable.”[3]

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[1] Civil Service Law Section 65.2 provides that “No provisional appointment shall continue for a period in excess of nine months.”

[2] Another case addressing a conflict between a Taylor Law contract provision and the Civil Service Law is City of Plattsburgh v Local 788, 108 AD2 104. As the result of the abolishment of a position, one of the two incumbents in the title, Mousseau, was "demoted" to a lower grade position. His date of permanent appointment was in April, 1979, while a co-worker, Racine, had an earlier date of permanent appointment, in February, 1978. The collective bargaining agreement provided that in determining seniority in the event of demotions in connection with a layoff the "date hired" was to be used. §80 of the Civil Service Law provides that the date of "permanent appointment" controls. Under the contract, Mousseau would be the senior employee since he had been hired before Racine while Racine was the more senior worker as defined by §80 because he received his permanent appointment first. The Union sought to arbitrate the alleged contract violation. The City resisted and won an order prohibiting arbitration. The Court ruled that the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away. Accordingly, it was required to follow the provisions of §80 of the Civil Service Law notwithstanding any Taylor Agreement provision to the contrary. The Court also noted that the contract specifically stated that the arbitrator did not have the power to rule on the legality or illegality of any provision of the agreement and, therefore, the arbitration was properly prohibited by the lower court. This decision is significant in that it calls attention to the fact that the Courts will not favor a Taylor Law contract provision over a statute when there is any substantial conflict between the two. The Appellate Division's decision in this case also notes that unless there is a clear indication in the agreement that a contract provision is subject to arbitration, Courts will "take (it) for granted" that the public employer did not intend to have a particular matter made subject to the contract's arbitration process (see Matter of Liverpool Central Schools, 42 NY2d 509.)

[3] See, also, County of Chautauqua v. Civil Service Employees Ass'n., 8 N.Y.3d 513