Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position

Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position
Bethel v McGrath-McKechnie, 258 AD2d 316, Reversed, 95 NY2d 7

If an employee is promoted to a position in which he or she is required to serve a probationary period, the individual is given a leave of absence from his or her former position and is to be restored to that position if he or she fails the probationary period (Section 63.1, Civil Service Law). Section 63.1 does not define the term “promotion”, however.

In the Bethel case, the Appellate Division said it is incorrect to assume that a “promotion” is restricted to a direct promotion in the chain of command. It ruled that an appointment to a position from an open competitive examination list having higher pay, more responsibility and more prestige qualified as a promotion. The Court of Appeals disagreed and reversed the Appellate Division’s determination.

Earlene Bethel was a New York City Contract Specialist Level II with the city’s Community Development Agency (CDA). In July 1994, she accepted a provisional appointment as a Staff Analyst, another position in CDA, and she was placed on leave from her Contract Specialist position. Nine months later she was permanently appointed to the title of Staff Analyst from on open competitive examination eligible list. She, accordingly, was required to serve a probationary period. At the same time, Bethel was told that “her leave from the title of Contract Specialist II was canceled.” CDA’s reason for discontinuing her leave of absence: Bethel had not been “promoted” and thus Section 63.1 did not apply in her situation.*

On January 11, 1996, while still a probationer, Bethel was summarily dismissed from her Staff Analyst position. CDA rejected her request to be restored to her former position on the grounds that she was not on leave from the position and therefore had no legal claim to it.

Although the Appellate Division decided that “under the unique circumstances presented, “cancellation of [Bethel’s] leave from her former position prior to the expiration of her probationary period was an abuse of discretion,” the Court of Appeal disagreed and reversed the Appellate Division’s ruling. The court said that although after passing the examination for Staff Analyst and being appointed to the title as a provisional employee and given a leave of absence from her permanent position as Contract Specialist II:

1. Bethel was appointed to the position of Staff Analyst from an open competitive examination.**

2. Civil Service Law § 63 and the corresponding rules "furnish job security [i.e., a leave of absence] to a permanent employee who is transferred or promoted to a position in which he or she is required to serve,” a probationary period for his or her probationary term" citing Matter of Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied, 77 NY2d 805.***

3. Bethel conceded that she was not "transferred," nor was she "promoted," to Staff Analyst and her argument that her appointment to Staff Analyst through an open examination rather than a promotional examination “is without consequence” is not persuasive.

4. The Civil Service Law and implementing rules and regulations do not mandate an agency place a permanent appointee on leave of absence from his or her former position while he or she is serving a probationary period in an effort to qualify for continuation in a position to which he or she has been neither promoted nor transferred.

Further, the Court of Appeals said that CDA's determination denying Bethel’s application for reinstatement to her former position of Contract Specialist was not an abuse of discretion and as Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.

Accordingly, said the court, Civil Service Law §75(1)(a) is inapplicable under the facts in this case. Accordingly, Bethel was not entitled to a hearing prior to her employer’s cancellation of her leave of absence from her former Contract Specialist position.

* CSL Section 63.1 applies to New York City personnel. Moreover, the city’s administrative code is consistent with Section 63.1 of the Civil Service Law. [See Rule 5.2.3 of the City’s Personnel Rules].

** In July 1994, after passing the examination, Bethel received a provisional appointment to Staff Analyst pending certification of the civil service list for the position to the Human Resources Administration.

*** An individual holding a position by permanent appointment who is place on a leave of absence upon promotion or transfer to another position may elect to return to his or her “permanent title” at any time during the probationary period.
NYPPL

Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing

Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing
Gary Grippo v John P. Martin, 257 AD2d 952

After negotiations with union representatives, the Town of Glenville adopted a drug and alcohol policy in December 1995. The policy included a provision for the random testing of employees for drug and alcohol use. The policy also specified various disciplinary actions to be taken following positive test results. In particular, the policy provided that two positive tests within a 10-year period would result in the employee’s immediate termination.

Gary Grippo, a town employee since 1986, tested positive for drug and alcohol use in August 1996. In accordance with the policy, Grippo was suspended from his employment without pay for 30 days. Grippo tested positive a second time on May 15, 1997. He was informed of the test result and the penalty of termination was imposed.

Grippo challenged his dismissal, contending that by creating an “irrebuttable presumption of [Grippo’s] guilt without affording him the due process of a hearing”, the policy is unconstitutional and violative of Civil Service Law Section 75[1].”

The Appellate Division disagreed and sustained a lower court’s ruling dismissing Grippo’s petition.

The Appellate Division commented that “a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law”.

Accordingly, an employee organization may, pursuant to the provisions of a collective bargaining agreement, waive the employee’s Section 75 and 76 rights.

The decision points out that “both by statute and case law, such a waiver in a collective bargaining agreement of public employee statutory rights in disciplinary matters is not against public policy, and members of the bargaining unit are bound thereby.”

The court found that: (1) Glenville had negotiated with Grippo’s union to enact the drug and alcohol policy, and (2) Grippo was provided with a copy of the policy and expressly agreed to its terms by signing it.
NYPPL

Negotiations during decertification action

Negotiations during decertification action
Advisory Opinion of Counsel 32 PERB 5002*

Sometimes the time becomes ripe for collective bargaining while a decertification petition is pending final determination. May the employer commence negotiations with a representative of a unit of public employees while the representation challenge concerning that unit is still pending?

PERB’s Counsel noted that in Matter of Rockland County, 10 PERB 3098, PERB held that “a public employer is not compelled to, and may not, negotiate with the incumbent employee organization while a bona fide question concerning representation is pending.”

However, Counsel noted that in earlier opinions it was indicate that such negotiations may be conducted in the face of a pending representation petition with the consent of all parties affected by the petition, citing 23 PERB 5001; 5002 and 5003.

Finally, the opinion notes that while the then recognized or certified bargaining agent for the unit may be barred from negotiating a successor agreement because of the pending representation petition, it has the “continuing right and duty to represent the at-issue unit” for the purposes of preserving the status quo and to respond to changes “through negotiations.”

* An Advisory Opinion of Counsel is not binding on PERB
NYPPL

Staying a grievance arbitration

Staying a grievance arbitration
Newfield CSD v Newfield Teachers Asso., 258 AD2d 845, motion to appeal denied, 93 NY2d 809

Newfield Central School District subcontracted with BOCES to staff various positions. In July 1997, the Newfield Central School Teachers Association filed a grievance alleging that the district had violated its collective bargaining agreement with the teachers association.

The superintendent denied the grievance, and the school board affirmed that ruling on administrative appeal. The teachers next filed a demand for arbitration. The district, however, obtained a stay from a state Supreme Court justice barring arbitration because the collective bargaining agreement was silent as to the district’s right to subcontract. The Supreme Court reasoned that absent clear contractual basis for arbitration on such an issue, the Teachers Association’s grievance was not arbitrable. The teachers appealed to the Appellate Division.

In a 4 to 1 ruling, the Appellate Division, Third Department, agreed with the lower court.

The court applied a two-part test set out in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509.

The first test was whether subject of the arbitration claim was prohibited under the Taylor Law (Civil Service Law Section 200 et seq.) For instance, issues involving strong public policy typically are not subject to arbitration. The court said the BOCES subcontracting issue was not prohibited under the Taylor Law.

Having passed the first test, the next question was whether the parties had agreed by the terms of their collective bargaining agreement to submit this type of dispute to arbitration. No, said the court.

Courts are likely to deny arbitration of a grievance unless the language of the arbitration clause in a collective bargaining agreement specifically provides for such arbitration. To determine whether an issue sought to be arbitrated falls within the ambit of an arbitration clause, a court is “to be guided by the principle that the agreement to arbitrate must be express, direct and unequivocal as to the issues or disputes to be submitted to arbitration; anything less will lead to denial of arbitration.”

In the Liverpool case, the Court of Appeals held: The Appellate Division said it may be appropriate for a school district and a teachers association to negotiate the degree to which a school district utilizes the resources available through BOCES.

The court characterized the subject as a permissible, rather than a mandatory, subject of negotiation.

Accordingly, said the court, it makes little sense to require the district, under the guise of a broad arbitration clause, to arbitrate a provision that it is not even required to negotiate. It ruled that in the absence of a valid and specific agreement between the parties clearly showing an intent to arbitrate claims arising out of subcontracting with BOCES, the district’s application to stay arbitration was properly granted.

The lesson here is that unless the contract arbitration provision specifically states that it is applicable to certain other, or all, controversies concerning issues not covered by the negotiated agreement arising between the parties during the life of the agreement, the courts usually will limit the scope of arbitration to those claims alleging a violation of a specified contract provision.

In a dissenting opinion, Presiding Judge Ann Mikoll said that “for a public employment dispute to be arbitrable, it is not necessary that the parties have specifically addressed its subject matter and specifically agreed to arbitrate it. Rather, the focus must be solely upon the language of the parties’ arbitration clause, and whether or not it extends to the particular dispute.” Judge Mikoll said that she believed that “the instant dispute falls within the scope of the parties’ broad arbitration clause, which extends to all ‘claimed violations’ thereof,” and concluded that the matter should be resolved by arbitration.
NYPPL

Employee terminated following loss of a license required to perform the duties of the position

Employee terminated following loss of a license required to perform the duties of the position
Lytle v U.S. Postal Service, 257 AD2d 779

One of the conditions of Christopher M. Lytle’s employment by the United States Postal Service was that he posses a valid driver’s license so that he could perform his postal duties.

Lytle was arrested for driving while intoxicated and his license was suspended. As he could not lawfully drive a motor vehicle, he was terminated from his position. Finding that he was “terminated due to misconduct,” the Unemployment Insurance Appeals Board denied his application for unemployment insurance benefits.

The Appellate Division sustained the board’s ruling, holding that since Lytle “engaged in a voluntary act which violated a reasonable condition of his employment, we decline to disturb the Board’s decision that [Lytle’s] behavior constituted disqualifying misconduct.”
NYPPL