Thursday, September 29, 2011

Layoff, Taylor Law agreements and the Doctrine of Unintended Consequences


Layoff, Taylor Law agreements and the Doctrine of Unintended Consequences
A NYPPL review

The Civil Service Employees Association [CSEA] has summarized the new “no layoff” Article set out in the several collective bargaining agreements between it and the State of New York for the period 2011-2016 as follows*:

No Layoff –

1. For the Fiscal Years 2011-12 and 2012-13, employees represented by CSEA shall be protected from layoffs resulting from the facts and circumstances that gave rise to the present need for $450 million in workforce savings.

2. For the term of the agreement, only material or unanticipated changes in the State’s fiscal circumstances, financial plan, or revenue will result in potential layoffs.

3. Workforce reductions due to the closure or restructuring of facilities, as authorized by legislation, and SAGE determinations are excluded from these limitations.

This “no layoff provision,” however, may fall victim to the Doctrine of Unintended Consequences as the result of the failure of the Public Employees Federation [PEF] to ratify the proposed collective bargaining agreement between it and the State.

In a press release dated September 27, 2011, Governor Cuomo stated that "The members of the Public Employee Federation (PEF) have made their decision on a contract that would have protected them against the state needing to lay off their workers in order to achieve the required workforce savings passed as part of this year's budget.”

However, certain employees in the negotiating unit represented by PEF may be insulated from layoff in the event the court’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045, is held controlling. 

In Plattsburgh the Appellate Division ruled that seniority for the purposes of layoff can neither be diminished nor impaired by the terms of collective bargaining agreements.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service. For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A. This was the problem in the Plattsburgh case. The City laid off A rather than another worker, B. While A had been employed by the City for a longer period than B, B had received his permanent appointment before A was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A, rather than B, had to be laid off first. Plattsburgh won an order prohibiting arbitration. The Appellate Division ruled that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals said in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees." Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

How could applying these decisions have an impact on State employees in the collective bargaining units represented by CSEA?

Should a State employee represented by PEF to be laid off because he or she is the least senior permanent employee in the layoff unit have layoff, displacement or retreat rights that would result in the layoff of a State employee in one of the collective bargaining units represented by CSEA, the courts may well rule that the PEF unit employee has layoff rights superior to those enjoyed by the CSEA employee notwithstanding the “no layoff” provision set out in the CSEA-State collective bargaining agreement.

Accordingly, in the event the PEF individual is found to have superior rights to continued employment pursuant to Civil Service Law §80(1), the resulting layoff of the CSEA individual presumably constitutes a violation of the CSEA-State collective bargaining agreement. 

In other words, if a collective bargaining agreement cannot diminish or impair the layoff rights of an individual in the relevant collective bargaining unit, it seems unlikely that the courts would rule that the layoff provisions in such a collective bargaining agreement are controlling with respect to employees in other collective bargaining units thereby defeating the statutory layoff rights of individuals not subject to the provisions of that agreement.

* The full text of the summary of the Agreement is posted on the Internet at


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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
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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/

Caution:

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