Tuesday, August 16, 2011

Unilateral transfer of unit work


Unilateral transfer of unit work
City of Rome v PERB, 283 AD2d 817

The Civil Service Employees Association, Local 1000, AFSCME, AFL-CIO Inc., City of Rome Unit [CSEA], filed an improper practice charge with the Public Employment Relations Board [PERB] alleging that Rome had impermissibly assigned unit work to nonunit employees without first bargaining with CSEA. PERB determined that Rome had violated Section 209-a(1)(d) of the Civil Service Law when it unilaterally transferred the responsibilities of its acting purchasing agent Marilyn McLiesh to others.

Rome was ordered to immediately transfer certain duties previously performed by McLiesh to the unit represented by CSEA, offer McLiesh reinstatement to her former position and make McLiesh whole for lost wages, benefits and conditions of employment from the effective date of her separation from service to the effective date of the offer of reinstatement.

The Appellate Division set out the following critical points in reviewing Rome's petition to vacate PERB's determination:

1. From October 1986 until December 1995, McLiesh served as Rome's deputy assistant purchasing agent. In December 1995, McLiesh was appointed acting purchasing agent after the Purchasing Agent resigned.

2. In January 1998, Rome abolished its purchasing agent position and transferred some of the work previously performed by McLiesh to employees in the Oneida County Purchasing Department. The tasks not transferred to the County were assigned to Rome's Treasurer's office. It then terminated McLiesh.

Rome challenged PERB's directive providing for McLiesh's reinstatement and the award of back pay as violative of Article V, Section 6 of the State Constitution.

Supreme Court ruled that McLiesh's continuation in service as an acting purchasing agent beyond the three-month period for temporary appointments permitted by Civil Service Law Section 64(1) violated Article V, Section 6 and thus PERB exceeded its authority by directing McLiesh's reinstatement. The Court annulled that part of PERB's decision that directed Rome to reinstate McLiesh with back pay and benefits. CSEA and PERB appealed.

The Appellate Division commenced its analysis of the case by noting that the transfer of McLiesh's responsibilities to nonunit workers did not, of itself, violate any law. Rather, it was Rome's failure to negotiate the transfer of such duties with PERB that violated Civil Service Law Section 209-a(1)(d).

The court said that its prior decision in Village of Scotia v PERB, 241 AD2d 29, was relevant in this case. In Scotia the Appellate Division held that although an individual “had been impermissibly demoted from police sergeant to patrolman,” PERB could not direct that he be restored to his prior position because he was not on a current eligibility list for appointment to police sergeant.

Here, said the court, the record showed that although McLiesh had been on an eligible list for the position of purchasing agent, that list expired on April 25, 1987 and would, in any event, have expired by operation of law at the end of four years. The Appellate Division's conclusion:

Since McLiesh took no subsequent test for purchasing agent and there was on no eligible list for the title, “it necessarily follows that, at the expiration of three months following McLiesh's appointment as 'acting' purchasing agent' her employment in that position violated the requirement of Article V, Section 6.”

In the court's view, “PERB's effort at justifying its remedial order by pointing out that it did not restore McLiesh to the position of purchasing agent but, rather, to her prior position of “acting” purchasing agent, fails to recognize that [her retention in] the latter position was itself violative of NY Constitution, Article V, Section 6.” Accordingly, PERB's directing Rome to reinstate McLiesh with back salary was not viewed as lawful.
It should be noted that McLiesh died while this appeal was pending. The court said that her “unfortunate death ... did not render the appeal moot. Notably, an award of back pay, which is primarily at issue here, would inure to the benefit of McLiesh's estate.”

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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