September 20, 2019

Criteria for promotion are a managerial prerogative and thus not a mandatory subject of collective bargaining


The New York City Correction Officers' Benevolent Association [Petitioner] filed an  Article 78 petition to challenge a determination by New York City Board of Collective Bargaining [BCB] which concluded that New York City Department of Corrections [DOC] and the City of New York [City] did not commit an improper practice under the City Collective Bargaining Law [CBL] when it altered the procedures pursuant to which correction officers represented by Petitioner secure promotions to the title of correction captain.

Petitioner had filed an improper practice petition with BCB alleging that the City and DOC violated New York City when DOC issued Directive 2230, entitled "Pre-Promotional Assignment Procedures" in accordance with a consent order approved by a federal district court in a case involving allegations of excessive use of force incidents in DOC facilities.*

The relevant provision in Directive 2230 concerns promotions within DOC provided for (1) a review of a correction officer's use of force and disciplinary history during the five years prior to the consideration for promotion; (2) a prohibition of the promotion of candidates who were found guilty or plead guilty on two or more occasions to five categories of discipline for excessive use of force during the prior five year period; and (3) a prohibition of a promotion from correction officer to captain while disciplinary charges related to use of force incidents are pending.

Board of Education, City School District of City of NY. v New York State Public Employment Relations Board, 75 NY2d 660, Supreme Court observed that "[i]n cases involving the issue of mandatory or prohibited bargaining subjects under the Civil Service Law, we have defined our review power as a limited one: [s]o long as [the agency's] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation." Further, opined Supreme Court, "New York courts have deferred to BCB's expertise in applying and interpreting the provisions of the CBL," citing New York City Dept. of Sanitation v MacDonald, 87 NY2d 650.

BCB had found that Directive 2230 does not constitute a unilateral change to a term of condition of employment, thus DOC did not make a unilateral change to a mandatory subject of collective bargaining, noting that in prior cases BCB had held that criteria for promotion are a managerial prerogative and not a mandatory subject of collective bargaining. Here, said the court, BCB concluded "that the contested changes in promotions set forth in Directive 2230 concern criteria for 'promotion"

Noting that BCB had found that DOC "exercised its managerial prerogative" when it took into consideration DOC took into consideration use of force incidents when considering  promotion to captain a correction officer's use of force incidents, finding that these elements "most akin to promotional considerations like aptitude, demeanor, and judgment, or to awarding greater points for those candidates with a less extensive disciplinary history."

Supreme Court held that these conclusions by BCB were rational and consistent with its  decisions in other cases and thus were "legally permissible" and there was "no breach of constitutional rights [or] protections" in its determination.  Accordingly, said Supreme Court, it had "no power to substitute another interpretation" in considering the arguments advanced by Petitioner.

Addressing Petitioner arguments that the Directive 2230 criteria regarding whether a corrections officer should be recommended for promotion to captain is analogous to imposing mandatory penalties for disciplinary violations, a mandatory subject of collective bargaining, Supreme Court opined that "New York courts, like BCB in the instant proceeding, have held that discipline is not the same as failure to promote."

The court then granted the motions advanced by BCB, the City and DOC to dismiss the Petitioner's Article 78 action.

* See Nunez v City of New York, 11 Civ 5845 (SDNY 2015),

The decision is posted on the Internet at:



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