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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

December 31, 2012

The relationship of a statute to the provisions of a Taylor Law agreement


The relationship of a statute to the provisions of a Taylor Law agreement
Civil Service Employees Association v. Town of Harrison, 48 NY2d 66

Where the court determines that a statute sets out a strong public policy, that provision will trump a  provision in a collective bargaining agreement inconsistent with the statute.

In the Town of Harrison case the Court of Appeals said that there is only one way a new position in the classified service of a municipality may be created: the way the controlling law requires.

In this instance the statutory imperatives of §22 of the Civil Service Law were viewed as reflecting such a strong public policy with respect to establishing new positions that it may not be ignored nor may it be circumvented under color of an “alternative” to the provisions of §22 contained in a collective bargaining agreement negotiated pursuant to the Taylor Law (§200 et seq, Civil Service Law). Failing to comply with the mandates of Civil Service Law §22 was fatal and no new position can come into being unless it is created as prescribed by Section.

Although the court did not address the “status” of the incumbent of the “new position” in its decision, it would appear that the “status” of the individual is not dependent on the “existence” of any position and, presumably, other relevant provisions of the Civil Service Law (i.e., §80, Layoff) would control if the “nonexistent new position” could no longer serve as a “position” for payroll purposes.

Another example of a provision in the Civil Service Law nullifying a provision in a collective bargaining agreement is City of Plattsburgh v Local 788, 108 AD2d 1045. In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a demotion involving a layoff situation.

The collective bargaining agreement between the City and Local 788 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.

In this instance the employee retained by the City had been initially appointed after the individual that Plattsburgh had been demoted. However the retained employee had been permanently appointed to the position prior to the effective date of the permanent appointment of the individual Plattsburgh had demoted.

The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away and granted the City’s Article 75 petition to permanently stay the Local from submitting its grievance alleging a contract violation to arbitration.

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