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November 15, 2019

The U.S. First Circuit Court of Appeals limits the reach of Janus in public union representation case


In an article captioned "First Circuit Limits Reach of Janus in Public Union Representation Case," Joseph Fawbush, Esq. notes that:

"Lower courts are now interpreting this decision, and mostly interpreting Janus narrowly. The U.S. First Circuit Court of Appeals, on October 4, distinguished and limited the reach of Janus.

"The unanimous panel held that an economics professor at the University of Maine relied on an improper reading of both state law and Janus when claiming that, as a non-paying employee represented by a labor union with which he disagrees, his First Amendment rights were violated."

The complete text of Mr. Fawbush's article is posted on the Internet at:

Cost-of-Living Adjustments Limits for 2020


The Internal Revenue Service [IRS] has released the 2020 COLA limits for retirement plans and IRAs indicating the contribution, deferral and compensation limits for 2020.

Another element to review: the IRS posting for the tax year 2020 annual inflation adjustments for more than 60 tax provisions, including tax rate schedules and other tax changes.

As a general rule, where there is a reasonable relationship of a grievance and the general subject matter of the collective bargaining agreement the dispute is arbitrable


This litigation involved a dispute between the City of Yonkers [City], and Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO [Local 628], concerning a paramedic training course funded by a federal Assistance to Firefighters grant the City had offered its firefighters.

After the City denied Local 628's requests for documents related to the paramedic training course, Local 628 filed a grievance asserting that the City violated, among other provisions, Article 33 of the parties' collective bargaining agreement [CBA]. Exhausting its internal grievance remedies, Local 628 demanded arbitration of the dispute.

The City then initiated a proceeding pursuant to Article 75 of the CPLR seeking a court order permanently staying arbitration. Supreme Court granted City's the petition, ruling that the dispute between the parties was not arbitrable because there was no reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Local 628 appeal and the Appellate Division reversed the Supreme Court's ruling "on the law."

Citing Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.-Long Beach Unit, 8 NY3d 465, the court explained that "[a]s a general rule, public policy in this State favors arbitral resolution of public sector labor disputes."

The Appellate Division, however, cautioned that "[a] grievance may be submitted to arbitration only where the parties agree to arbitrate that kind of dispute, and where it is lawful for them to do so," citing Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273]. Further, said the court, in determining whether a grievance is arbitrable, a court must "first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance," and if there is no such prohibition against arbitration, the court must "then examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue."

As it was undisputed that there is no statutory, constitutional, or public policy prohibition to the arbitration of Local 628's grievance, the only issue to be addressed by the Appellate Division was whether the City and Local 628 had agreed to arbitrate this particular dispute. Finding that the relevant arbitration provision in the CBA was "broad," providing for arbitration of any grievance "involving the interpretation or application of any provision of this Agreement," the Appellate Division opined that a court "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Absent a finding that there is no reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA, the Appellate Division said the court should rule the matter arbitrable, whereafter "the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

Local 628 had contended that the City, by offering a paramedic training course to its firefighters, violated Article 33 of the CBA, which contains various provisions concerning the EMS Program, including a provision stating that the "EMS Program shall mean the level of services provided as of the date of this Agreement."

Finding that a reasonable relationship exists between Local 628's grievance and the general subject matter of the CBA, the Appellate Division concluded that resolving "the question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator."

Accordingly, the Appellate Division held that the Supreme Court should have denied the City's petition to permanently stay arbitration and dismissed the proceeding.

The decision is posted on the Internet at:


November 14, 2019

Courts should not "second guess" the format or the methods used in designing and using civil service examinations where the method chosen meets the mandates of the Constitution and statutes


The New York City Department of Citywide Administrative Services [DCAS]  included 20 "research questions" in an examination for Associate Fraud Investigator. The candidates' answers to these question were not rated for the purposes of establishing their "test score" but were included in an effort to allow DCAS to develop alternate forms of an examination "for a given title that would yield measurably equivalent outcomes" and to provide a means for testing "the validity of examination questions, ensuring that these questions were valid across differing groups of test-takers, regardless of their racial or ethnic background." In addition, the time for taking the examination was extended to provide adequate time to answer all questions.

The Social Services Employees Union Local 371 [Local 371] filed a petition pursuant to CPLR Article 78 seeking a declaration that results of a civil service examination administered by the New York City Department of Citywide Administrative Services [DCAS] were null and void. Supreme Court dismissed Local 371's petition which action was unanimously affirmed by the Appellate Division.

The Appellate Division explained that Local 371 "failed to establish" that DCAS's inclusion of 20 ungraded research questions in an examination administered for the position of Associate Fraud Investigator violated the merit and fitness mandate set out in Article V, §6 of the New York State Constitution or §50(1) of the New York State Civil Service Law* or that DCAS action in including the research questions in the examination was otherwise arbitrary and capricious.

In the words of the Appellate Division, DCAS is "afforded considerable discretion in preparing and administering civil service examinations" and as long as the examination is "reasonable in testing for the skills identified for the position" and " competitive' in the constitutional context," courts should not "second guess the format or the methods of the examination."

Further, said the court, Local 371 failed to "sufficiently allege that the inclusion of these ungraded questions was arbitrary or capricious" as all candidates were scored the same way on the graded questions, and the test did not inherently disadvantage any one candidate. The decision also notes that the candidates were evaluated only on the basis of questions that had already been validated as providing an accurate measure of merit and fitness for the role.

Unanimously affirming the lower court's ruling, the Appellate Division opined that DCAS is not required to adopt Local 371's preferred method of testing proposed examination questions, particularly where the method chosen meets the constitutional and statutory mandates.

* §50.1 of the Civil Service Law provides as follows: "Positions subject to competitive examinations. The merit and fitness of applicants for positions which are classified in the competitive class shall be ascertained by such examinations as may be prescribed by the state civil service department or the municipal commission having jurisdiction."

The decision is posted on the Internet at:


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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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