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Nominations sought for the Empire Star Public Service Award

This award recognizes exemplary employees of New York State serving in the Executive Branch.

Nominations must be submitted no later than December 15, 2017 and may be completed online.

For more information about the Empire Star Public Service Award, visit www.ny.gov/EmpireStarPublicService.

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Friday, March 11, 2016

Seniority for the purposes of layoff and reinstatement from a preferred list set out in "settlement agreement"


Seniority for the purposes of layoff and reinstatement from a preferred list set out in "settlement agreement"
Giardina v New York City Health and Hosp. Corp., 2016 NY Slip Op 01402, Appellate Division, First Department

City Laborer Antonio Giardina was laid off from his position. Giardina’s union subsequently challenged the way the “retention date” of City Laborers, including Giardina’s, for the purposes of layoff had been determined by the employer. The union, on behalf of affected City Laborers, including Giardina, then entered into a stipulation of settlement with the employer that set the “retention date” for the Labors.

Giardina filed an Article 78 petition seeking to annul the determination that resulted in his being laid off after his position had been abolished. Supreme Court dismissing the proceeding brought by Giardina, which ruling the Appellate Division unanimously affirmed.

Noting that Giardina had personally ratified the settlement which advanced his retention date by more than nine years and moved his name from No. 49 to No. 23 on the preferred list, the Appellate Division explained that only two vacancies had occurred since his layoff and  Laborers senior to him had been reinstated to those position. As Giardina was unable to identify any Laborer who should have been displaced by him or any vacancy that occurred to which he should have been appointed from the preferred list, the court held that Supreme Court was correct in dismissing his petition.

Significantly, the positions to which the stipulation of settlement applied apparently were in the Labor Class.* 

As the Appellate Division held in City of Plattsburgh v Local 788, 108 AD2d 1045, this element – an individual’s seniority for the purposes of layoff – may neither be diminished or nor impaired by the terms of collective bargaining agreement with respect to incumbents of positions in the Competitive Class.

In Plattsburgh the issue concerned the application of a contract provision negotiated pursuant to the Taylor Law to determine seniority in a layoff situation.

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 required to be used to determine an individual's service for seniority purposes in layoff situation under State law, typically 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 provisionally 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 Employee A would have greater seniority for layoff purposes than Employee B. §80 of the Civil Service Law, however, 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 Civil Service Law, Employee B would have greater seniority than Employee A.

This was the problem in the Plattsburgh case. The City laid off M rather than another worker, R. Although M had been employed by the City for a longer period than R, R had received his permanent appointment before M was permanently appointed.

Ultimately the Union demanded that the matter be submitted to arbitration, contending that under the seniority provision in the collective bargaining agreement, R should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus M, rather than R, had to be laid off first and sought to stay the arbitration of the grievance.

Plattsburgh obtained a court order prohibiting arbitration. The court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals held 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."

* §80 of the Civil Service Law controls with respect to the suspension or demotion of employees in the Competitive Class in the event of a layoff while §80-a of the Civil Service Law controls with respect to the suspension or demotion of employees of State as the employer serving in positions in the Non-competitive Class in the event of a layoff. §81 sets out the procedures to be followed with respect to reinstatement from preferred lists established pursuant to §§80 and 80-a.

The Giardina is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_01402.htm
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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html
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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/

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