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.

Read More

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. 

Read More

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.

Read More

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

A former chief financial officer of the St. Johnsville Volunteer Ambulance Corp. was charged with stealing over $26,000 from the company, Comptroller DiNapoli, Montgomery County District Attorney Christina Pearson and New York State Police Superintendent Steven G. James announced. The defendant was charged with grand larceny in the third degree and forgery in the third degree.

Read More

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

Appellate Division finds individual petitioners in this litigation were not entitled to retain a "physically taxing status" for the purpose determining retirement benefits

The Petitioners in this action challenged the New York City Employee Retirement System's cancellation of additional pension withdrawals, which it had been taking from the individual Petitioners' paychecks beginning prior to their promotions from position of Supervisor of Traffic Device Maintainers [STDM] to STDM Level II or STDM Level III, because their titles in their new positions were not titles included on the Official List of Physically Taxing Positions [OLPTP].

The Appellate Division held New York City's Office of Labor Relations' reclassification of the individual Petitioners' job titles to STDM Levels II and III, which were not titles included on the OLPTP, in 2012 [1] was not arbitrary and capricious and [2] that discontinuing the additional withdrawals was not erroneous. 

Matter of Croghan v Adams

2025 NY Slip Op 01285

Decided on March 06, 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 06, 2025
Before: Kern, J.P., Mendez, Rodriguez, Pitt-Burke, Higgitt, JJ.

Index No. 157449/22|Appeal No. 3823|Case No. 2024-00714|

[*1]In the Matter of Robert Croghan et al., Petitioners-Appellants,

v

Eric L. Adams et al., Respondents-Respondents.

Law Offices of Leonard A. Shrier, P.C., New York (Leonard A. Shrier of counsel), for appellants.

Muriel Goode-Trufant, Corporation Counsel, New York (Amy McCamphill of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Nancy M. Bannon, J.), entered January 3, 2024, which denied the petition seeking, among other things, to annul the May 20, 2022 decision of respondent Commissioner of the Office of Labor Relations (OLR) finding that the individual petitioners' job titles were never included on the Official List of Physically Taxing Positions (Official List) and the May 5, 2022 decision of respondent Executive Director of the New York City Employee Retirement System (NYCERS) cancelling additional pension contributions being withdrawn from petitioners' paychecks based on their prior physically taxing status, and dismissed this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The OLR determination that the individual petitioners' job titles of Supervisor of Traffic Device Maintainers (STDM) Levels II and III were not on the Official List after reclassification in 2012 was not arbitrary and capricious (see CPLR 7803[3]; 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]). There is no dispute that the prior job titles of Supervising Superintendent of Maintenance (SSM) Levels I and II were not on the Official List, which was last updated in 2005 (see generally Retirement and Social Security Law §§ 604-c[a][11], 604-d[d][2]; Administrative Code of City of NY §§ 13-101[56], 13-162[l][1]-[2]). The January 25, 2012 resolution of the New York City Department of Citywide Administrative Services (DCAS), whereby SSM Levels I and II were renamed STDM Levels II and III, respectively, dictated that there was "no change in duties or status," and the job descriptions issued at the time of the DCAS resolution show no change in duties. Thus, it was not irrational for OLR to find in 2022 that there had been no change in physically taxing status in 2012. It follows that OLR was not required to notify petitioner union of any intent to remove STDM Levels II and III from the Official List in 2022, as no such removal occurred, and that the individual petitioners were not entitled to retain a physically taxing status under the statutory provisions they cite (compare Administrative Code of City of NY § 13-162[l][7][a], [d]).

Similarly, the determination by NYCERS to cancel the additional pension withdrawals it had been taking from the individual petitioners' paychecks beginning prior to their promotions from a position on the Official List to STDM Level II or III was not arbitrary and capricious or affected by an error of law. NYCERS rationally relied on the alternative payroll code appearing in the relevant time and attendance records, by which NYCERS effected the pension withdrawals and which does not appear on the Official List, to conclude that these additional withdrawals were erroneous (see also Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, [*2]34 NY3d 184, 195 [2019]). Moreover, this conclusion was consistent with OLR's determination.

We have considered petitioners' remaining contentions and find them unavailing.

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

ENTERED: March 6, 2025

Accidental Disability Retirement Benefits not available to employee suffering an injury while acting within the scope of his ordinary employment duties

The Appellate Division held the determination of the Board of Trustees of the Police Pension Fund [Respondent] denying Petitioner's application for Accidental Disability Retirement Benefits [ADR] was supported by credible evidence that Petitioner was injured when he slipped on ice cubes while getting into a police vehicle after responding to a 911 call. 

Citing Matter of Compagnone v DiNapoli, 2024 NY Slip Op 06235, the Appellate Division found that Respondent appropriately considered whether Petitioner was acting within the scope of his ordinary employment duties and whether the incident was an inherent risk of those regular duties, and opined that "It is an inherent risk of [Petitioner's] regular job duties to encounter debris on the sidewalk and roadway while responding to a 911 call.

Click HERE to access the Appellate Division's decision posted on the Internet.