Enforcing the terms and conditions set out in a collective bargaining agreement beyond the grievance process.

State and municipal public employees in New York State have the right to negotiate terms and conditions of employment which are typically set out in a collective bargaining agreement [CBA]* pursuant to Article 14 of the Civil Service Law [typically referred to as "The Taylor Law]. Such individuals may also have rights provided by statute or regulation. 

Typically the collective bargaining agreement contains a mandatory grievance process the CBA and rarely provides employees with the authority to enforce the terms and conditions set out in the CBA beyond the negotiated grievance process.*

In this decision the Appellate Division pointed out that "Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed grievance procedure and initiate litigation involving a  contract issue directly against the employer".

Citing Matter of Obot [New York State Dept. of Correctional Services], 89 NY2d 883, the Appellate Division noted that allegations that an employer has breached the collective bargaining agreement are contract claims that may not be resolved in an Article 78 proceeding as "the proper mechanism is initiating a plenary action alleging both breach of contract by the employer and breach of the duty of fair representation by the union". In the words of the Appellate Division: As the employee's claim arises solely under the CBA, the employee was also required to follow the path laid out in the Appellate Division's decision in Ambach**

* On occasion such an agreement may issued in the form of a Memorandum of Understanding.

** Ed. Note: However, as the Appellate Division held in Amorosano-LePore v Grant, 56 AD3d 663, the employee's exhaustion of administrative remedies is not required where so doing would constitute "an exercise in futility".

Click HERE to access the Appellate Division's decision.

Counting Provisional Service Towards Time-in-Title Requirements

The New York State Department of Civil Service has published General Information Bulletin 25-01, Provisional Service Counting Towards Time-in-Title Requirements for Promotion Once Permanently Appointed.

The text of General Information Bulletin 25-01 is posted on the Internet at GIB 25-01. 

A version of Bulletin 25-01 in PDF format is available for downloading at GIB 25-01 PDF.

To view previous General Information Bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/gibs.cfm. N.B. Replies to this URL will not be read or answered.

The placement of unvaccinated COVID-19 bargaining unit members on leave without pay held not to be arbitrable

Supreme Court denied an employee organization's [Union] petition seeking to annul a determination by the New York City Board of Collective Bargaining [BCB] that a Union member's grievance was not arbitrable in part and dismissed this proceeding brought pursuant to CPLR Article 78.

Union had sought to arbitrate the consequences of certain of its members' failure to comply with the COVID-19 vaccine mandate applicable to New York City employees. 

BCB had determined that although certain issues asserted in the Union's petition were arbitrable, issues concerning the placement of unvaccinated bargaining unit members on leave without pay was not arbitrable.

The Appellate Division unanimously affirmed the Supreme Court's BCB's ruling without costs, opining that "BCB's finding regarding the arbitrability of issues relating to placement on Leave Without Pay [LWOP] was not arbitrary and capricious or contrary to law. The Appellate Division also rejected the Union's assertion that its unvaccinated members were deprived of their rights to salary and related remuneration under the Collective Bargaining Agreement because they were placed on LWOP. 

The Appellate Division's decision is set out below:

Matter of Uniformed Firefighters Assn. of Greater N.Y. Local 94, IAFF, AFL-CIO v City of New York

2025 NY Slip Op 01596

Decided on March 18, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 18, 2025
Before: Moulton, J.P., Kennedy, Rodriguez, Pitt-Burke, O'Neill Levy, JJ.

Index No. 159305/22|Appeal No. 3929|Case No. 2024-01024|

[*1]In the Matter of Uniformed Firefighters Association of Greater New York Local 94, IAFF, AFL-CIO, Petitioner-Appellant,

v

The City of New York et al., Respondents-Respondents.

Certilman Balin Adler & Hyman, LLP, East Meadow (Paul S. Linzer and Jennifer A. Bentley of counsel), for appellant.

Muriel Goode-Trufant, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for The City of New York and The Fire Department of the City of New York, respondents.

New York City of Collective Bargaining, New York (Brian Zapert of counsel), for the New York City Board of Collective Bargaining, respondent.

Order and judgment (one paper), Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about January 16, 2024, which denied the petition to annul the September 28, 2022 determination of respondent The New York City Board of Collective Bargaining (BCB) that petitioner's grievance was not arbitrable in part, and dismissed this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

This proceeding arises from the attempt by petitioner Uniformed Firefighters Association of Greater New York Local 94, IAFF, AFL-CIO (UFA), to arbitrate the consequences of certain of its members' failure to comply with the COVID-19 vaccine mandate applicable to New York City employees. As relevant to this appeal, the BCB found that although certain issues asserted in the petition were arbitrable, issues concerning the placement of unvaccinated bargaining unit members on leave without pay (LWOP) were not arbitrable. 

BCB's finding regarding the arbitrability of issues relating to placement on LWOP was not arbitrary and capricious or contrary to law (see CPLR 7803[3]; Administrative Code of City of NY § 12-309[a][3]); Matter of New York City Dept. of Sanitation v MacDonald, 87 NY2d 650, 656 [1996]; Matter of Pell v Board of Educ. 0f Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Under the two-pronged test to determine whether a dispute is arbitrable pursuant to Court of Appeals precedent, the BCB must first determine whether the parties may arbitrate the dispute by inquiring if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance" (Matter of City of Johnstown [Johnston Police Benevolent Assn.], 99 NY2d 273, 278 [2002]). If there is a prohibition, the inquiry ends and an arbitrator cannot act. If no prohibition exists, as was the case here, the BCB then examines the parties' collective bargaining agreement (CBA) to determine whether the parties in fact agreed to arbitrate the particular dispute (see id.; see also MacDonald, 87 NY2d at 655-656). The Board rationally found, under the second prong, that there was no "reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA" (Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, 283 [2010][citation omitted]).

We reject petitioner's argument that its members who failed to comply with the citywide vaccine mandate were deprived of rights under the regulations of respondent the Fire Department of the City of New York (FDNY). The cited regulation, FDNY regulation § 17.5.1, simply requires employees who want permission to go on special leaves of absence to apply in writing and explain the reasons for their request. It does not prohibit the FDNY from imposing leave in other circumstances, such as where these members fail to satisfy a condition of employment, nor does it address the FDNY's ability [*2]to do so (see Matter of O'Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y., 42 NY3d 986, 990-991 [2024]).

We also reject petitioner's assertion that its unvaccinated members were deprived of their rights to salary and related remuneration under the CBA because they were placed on LWOP. These members' failure to satisfy a condition of employment necessarily renders them unqualified for their position (see id.; Garland v New York City Fire Dept., 574 F Supp 3d 120, 129 [ED NY 2021]; see also We the Patriots USA, Inc. v Hochul, 17 F4th 266, 294 [2d Cir 2021], clarified 17 F4th 368 [2d Cir 2021], cert denied sub nom. Dr. A. v Hochul, — US &mdash, 142 S Ct 2569 [2022]). Therefore, it was not irrational for the Board to find that petitioner identified no right "to the continuation of contractual pay and benefits under these circumstances." On appeal, petitioner identifies no CBA provision that would allow its members to continue being paid for services not rendered upon their failure to satisfy a condition of employment (see e.g. Matter of Detectives' Endowment Assn., Inc. of the Police Dept. of the City of N.Y. v City of New York, 125 AD3d 475, 475-476 [1st Dept 2015]; Matter of City of Binghamton [Binghamton Firefighters, Local 729, AFL-CIO], 20 AD3d 859, 860 [3d Dept 2005]).

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 18, 2025

Posted on the Internet by New York State Comptroller Thomas P. DiNapoli

Audit Recommends Improvements in Services for Survivors of Human Trafficking

The New York State Office of Temporary and Disability Assistance (OTDA) can take steps to improve its efforts to ensure survivors of human trafficking receive the services and assistance available to them, according to an audit released by Comptroller DiNapoli. The audit found that while programs exist to assist with shelter, medical and mental health care, and legal services, OTDA should do more to help eliminate barriers to assistance and support for victims.

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NYC’s Solid Housing Growth at Risk as Permits Fall

New York City’s efforts to address its housing shortage have led to a growth in supply that outpaced that of the state, but a drop in permits suggests slower growth may be on the horizon, according to a report released by Comptroller DiNapoli. The report examines where new housing has been concentrated since 2010 and implications for growth in other areas of the city. 

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Comptroller DiNapoli Announces Sale of $540 Million State of New York General Obligation Bonds

Comptroller DiNapoli announced the sale of New York State General Obligation (GO) Bonds totaling $539.6 million through competitive sale. Despite recent market volatility, strong investor interest in the state’s full-faith-and credit GO bonds resulted in favorable interest rates and produced savings for state taxpayers.

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Former CFO Of St. Johnsville Volunteer Ambulance Corp. Arrested for Stealing Over $26,000

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Links to selected items posted on the Internet during the week ending March 22, 2025

New York State Appoints its First Chief AI Officer Shreya Amin has nearly 20 years of experience with data science and AI. She takes over as the state pursues new AI computing power and issues guidelines about the best use of artificial intelligence in the public sector. READ MORE Federal and State entities have posted guidelines addressing accessibility and diversity, equity and inclusion on the Internet.   The Offices of the Attorney General for the State of Illinois, the Commonwealth of Massachusetts, and the State of New York have posted a "joint guideline" on the Internet. Click on the URL below to access the guideline: https://ag.ny.gov/sites/default/files/publications/joint-guidance-re-school-programs-guidance-2025.pdf The United States Department of Education has posted its guidelines on the Internet as a letter addressed to "Dear Colleague". Click on the URL below to access the guideline:  https://www.ed.gov/media/document/dear-colleague-letter-sffa-v-harvard-109506.pdf One Mission: Expand High-Speed Internet Across Rural America  Bringing broadband to every rural community takes dedication, investment, and innovation. See how construction crews make it happen in Every Last Mile.   Stream now: EveryLastMile.film