Establishing seniority rights in the course of collective bargaining
Bregman v East Ramapo Cent. Sch. Dist., 2014 NY Slip Op 07610, Appellate Division, Second Department
Bregman v East Ramapo Cent. Sch. Dist., 2014 NY Slip Op 07610, Appellate Division, Second Department
The Appellate Division held that Steven Bregman and the other plaintiffs [Bregman] in this action had waived their right to seniority credit through their teacher association's collective bargaining agreement with the Board of Education for the East Ramapo Central School District. To this end the court said that Supreme Court should have entered a judgment declaring that the relevant provision of the collective bargaining agreement governing seniority rights and the determination to deny Bregman seniority credit pursuant thereto was not illegal and invalid.
The court noted that such a waiver was not against public policy, as the Board of Education was allowed to establish a separate tenure area for administrators apart from the teaching tenure areas enumerated in 8 NYCRR 30-1.4.and Bregman did not establish that the positions in question constituted "instructional support services" as defined in 8 NYCRR 30-1.1(j).
However, certain “seniority provisions” in a collective bargaining agreement may not be lawful and thus unenforceable as the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045, demonstrates. The decision addressed the application of a Taylor Law contract provision dealing with seniority of employees in the classified service in the event of a layoff.
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 to be used to determine an individual's service for seniority purposes for layoff under State law.
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 both §§80 and 80-a of the Civil Service Law provide that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and thus, in accordance with law, B would have greater seniority than A.
When the City laid off A rather than B, notwithstanding the fact that A had been employed by the City for a longer period than B because B had received his permanent appointment before A was permanently appointed, the Union grieved.
The Union contended 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 obtained a court prohibiting submitting the grievance to arbitration.
In the appeal that followed the Appellate Division sustained the City's decision and explained that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.
The decision is posted on the Internet at:
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