August 26, 2020

Substituting a "Rule of One" for the "Rule of Three" when making appointments from a promotion list


Although in People v Mosher, 163 NY 32, the Court of Appeals held that a civil service commission cannot mandate a rule of one with respect to appointing an individual from an examination eligible list to a position in the competitive class, the appointing authority itself may elect to be bound by such a rule. Such a decision has not been viewed as offending public policy because the appointing authority has merely truncated its ability to exercise its discretion with respect to selecting candidates for appointment from the eligible list.

When an arbitrator require the appointing authority to promote the highest-scoring bargaining unit member on a civil service eligible list based on a finding that a rule of one was mandated under the terms of the parties' collective bargaining agreement [CBA], the appointing authority brought an action pursuant to CPLR Article 75 seeking a court order vacating the award. The appointing authority contended that such an award violated public policy in that restricted the statutory discretion vested in the appointing authority pursuant to Civil Service Law §61 "to select one of the three highest-ranked candidates on an eligible list."

Ultimately the Court of Appeals* concluded that there was no strong public policy prohibiting an appointing authority from agreeing include a provision  in a CBA as the result of collective bargaining pursuant to Article 14 of the Civil Service Law, the so-called Taylor Law, requiring the appointing authority select the employee whose name appears first on the eligible list certified to it for that purpose.

The court explained that §204 of the Civil Service Law "empowers and, in fact, requires a public employer to negotiate collectively with employee organizations and enter into written agreements governing the terms and conditions of employment." Observing that "the public policy exception to the arbitrability of public sector labor disputes is narrow," the Court of Appeals sustained the arbitration award, observing that the promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law.

In contrast, however, determining the seniority rights in some situations are statutory such as determining an employee's seniority for the purposes of layoff based on the employee's "original date of permanent appointment" in the event of a layoff.** §64.2 of the Civil Service Law provides that an individual's original date of permanent appointment is the effective date of the individual's initial, and uninterrupted, permanent appointment from the eligible list, to be distinguished from the date the employee attained "tenure" in the position upon the successful completion of the employee's required probationary period at some later date.

For example, in City of Plattsburgh v Local 788, 108 AD2d 1045, the Appellate Division the court considered a Taylor Law contract provision which provided that the "date of hire" was to be used to determine an employee's seniority rather than the individual's "original date of permanent appointment.

Under the terms of the Local 788 CBA Employee A had greater seniority for layoff purposes in consideration of the fact that he had been provisionally appointed to his position before Employee B was provisionally appointed to his. But §§80 and 80-a of the Civil Service Law provide that the date of an employee's most recent, uninterrupted permanent appointment determines his or her seniority for the purposes of layoff and as Employee B had been permanently appointed to his position prior to Employee A being permanently appointed to his, Employee B would have greater seniority for the purpose of layoff determinations than Employee A pursuant to law.

When Plattsburgh laid off Employee A rather than Employee B notwithstanding the fact that Employee A had been employed by the City for a longer period than Employee B because Employee B been permanently appointed to the title before the effective date of Employee A's permanent appointment to the title, the Union grieved. Ultimately the union demanded that the issue be submitted to arbitration, contending that under the seniority provision in the CBA B rather than A should have been laid off.

The City, arguing that Civil Service Law §80 controlled and thus A, and not B, had to be laid off first, obtained a court order prohibiting arbitration of the grievance. 

The Appellate Division explained that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away, citing County of Chautauqua v Civil Service Employees Ass'n, 8 N.Y.3d 513, in which the Court of Appeals held that once an informed decision as to which positions are to be abolished is made, Civil Service Law "§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.

* Matter of the Arbitration between Professional, Clerical, Technical Employees Association and Buffalo Board of Education, 90 N.Y.2d 364, posted on the Internet at https://www.leagle.com/decision/199745490ny2d3641423

** §80 of the Civil Service Law which, in addition to other requirements, provides that layoffs of employees in the competitive class "shall be made in the inverseorder of original appointment on a permanent basis in the classified service in the service of the  governmentaljurisdiction in which such  abolition or reduction of positions occurs...." §80-a of the Civil Service Law sets out similar provisions with respect to the layoff of employees in the noncompetitive class of the State as the employer.


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