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March 8, 2021

Arbitrating a grievance alledging the employer failed to fill a vacant position as required by a provision in the collective bargaining agreement

The Appellate Division, noting that the parties in this action were actually involved in two appeals each involving the arbitrability of a grievance alleging that the appointing authority [Employer] failed to fill certain vacancies in accordance with the terms set out in the collective bargaining agreement [CBA], said it was deciding both appeals "herewith."

Essentially the two disputes concerned a CBA provision that required Employer to fill "vacant promotional positions ... from [c]ivil [s]ervice lists within thirty (30) days." One grievance alleged Employer failed to fill two vacant Sergeant positions* and a second grievance alleging Employer failed to fill a vacant Captain position.**

The Sergeant Grievance: One sergeant was promoted to captain and another sergeant retired, leaving two vacant sergeant positions. After the second Sergeant position had been vacant for more than 30 days, the Union filed a grievance alleging that Employer had violated the CBA by failing to timely promote any eligible candidates to the vacant sergeant positions.

The Captain Grievance: Two months after an individual was promoted from the position of captain to assistant chief, leaving a vacant captain position, the Union filed a grievance alleging that Employer violated the CBA when it failed to promote one of the three eligible sergeants to the position of captain within 30 days.

Employer denied the grievances and the Union submitted demands to arbitrate the disputes. Employer then commenced two proceeding pursuant to CPLR §7503 seeking, respectively, court orders permanently staying the arbitrations. Supreme Court denied Employer's applications for the stays of arbitration and granted the Union's cross motions to compel arbitrating the two disputes. Employer appealed the Supreme Court's decisions.

In deciding these appeals the Appellate Division noted:

1. When deciding whether to stay or compel arbitration pursuant to CPLR 7503, courts are "concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim." 

2. In general, "any doubts as to whether an issue is arbitrable will be resolved in favor of arbitration."

3. Citing Deas v Levitt, 73 NY2d 525 and other decisions, the Appellate Division  opined although "no individual had a vested right to be appointed to a vacant position — not even those whose scores placed them in the top three examinees", in this instance once individuals were appointed, they may have become entitled to damages or other relief based on Employer's alleged contractual breach, i.e., failure to make such appointments within the time frame required by the CBA.

4. "The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, [courts] first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, [courts] then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement".

5. A public employer's promotional practices may lawfully be the subject of collective bargaining and, if agreed upon, may be the subject of arbitration when a related grievance is filed.

6. Article XXV of the CBA at issue, addressing promotions to newly-created and vacant positions, provides that "vacant promotional positions shall be filled from [c]ivil [s]ervice lists within thirty (30) days; provided, however, that if any list would expire prior to that time, the positions will be filled before the expiration of the list in existence at the time the vacancy occurs, or the new position is created."

Employer asserted that Article XXV was contrary to Civil Service Law §61(1). The Appellate Division disagreed, explaining that this is not a situation where the CBA mandates appointing the highest scoring person on the list willing to accept a police officer position rather than applying the "rule of three" - selecting a candidate from among the "top three eligibles" certified for appointment to the position. The court noted that here the Employer retained the discretion to choose from among the top three candidates, but voluntarily agreed to make such choice within a certain period. As Civil Service Law §61 contains no time requirements for making an appointment, the CBA's provision did not violate that statute or any related public policy.

As to the appointing authority exercising discretion in selecting an eligible individual for promotion, while in Matter of Professional, Clerical, Tech. Empls. Assn. (Buffalo Bd. of Educ.), 90 NY2d 364, the Court of Appeals held that a public employer could, without violating public policy, agree to forgo its statutory authority to choose any one of three candidates for promotion to clerical and secretarial positions, in  Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 NY3d 660, the high court ruled that "[p]ublic policy requires that police departments retain the authority given them by Civil Service Law §61(1) to select one of three candidates for such promotions," thus barring an appointing authority from agreeing, in the course of collective bargaining, to limit its discretion in selecting a candidate for promotion by requiring the appointing authority to follow the so-called "the rule of the list."***

Considering "budget arguments" advanced by the Employer, the Appellate Division opined that although Article XXV would allow Employer to eliminate an open captain position**** and thereby save the expenses related to that position, Employer had "bargained away its ability to keep the position as a line item in the budget but not fill it when it becomes vacant." This "partial limit" on a municipality's power to control its budget, which limit was voluntarily agreed upon by the Employer in the CBA, was not viewed as against public policy by the Appellate Division.

Finding that "[n]o constitutional provision prohibits arbitration here", the Appellate Division concluded its rulings by observing that "considering the broad scope of the CBA's arbitration clause, any argument concerning compliance with the grievance process, including any time limitations thereunder, is likewise a matter for the arbitrator to decide."

An historical note: Prior to 1900 New York State civil service appointments from eligible lists were based on the rule of one, also referred to as "the rule of the list." This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission. In 1900 the "rule of one" was struck down by the Court of Appeals as unconstitutional. The Court held that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power" [People v Mosher, 163 NY 32]. This decision prompted establishment of the so-called "rule of three," currently set out in Section 61.1 of the Civil Service Law and held valid by the Court of Appeals in People v Gaffney, 201 NY 535. 

* See Matter of City of Troy (Troy Police Benevolent & Protective Assn., Inc.), 2021 NY Slip Op 01172, posted on the Internet at

** See Matter of City of Troy (Troy Police Benevolent & Protective Assn., Inc.), 2021 NY Slip Op 01170, posted on the Internet at

*** The Rule of One, also known as the "Rule of the List." is mandated by Civil Service Law §§81.2 and 81.3 in situations involving an appointment from a preferred list and in situations involving an appointment from a similar list such as a Special Eligible List established pursuant to §243.7 of the State's Military Law while §243.12 of the Military Law provides that appointments from a Military Re-employment List may be made without regard to the selected individual's position on said list.

**** The Attorney General has opined that there must be an actual abolishment of the position in question in contrast to merely “creating a vacancy as the result of a layoff” in order to trigger the relevant statutory layoff procedures [1976 Opinions of the Attorney General 7].

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