On Layoffs, Collective Bargaining, and Seniority

August 17, 2008
Layoffs Under New York Civil Service Law
Layoff considerations
Civil Service Law Sections 80 and 81-A; Education Law Sections 2510; 3013
LINK

The financial difficulties faced by the State and its political subdivisions has generated concern that public employers may have to abolish jobs resulting in layoffs.
Both the Civil Service Law and the Education Law (New York City School System Laws are under Section 2590) contain provisions dealing with layoff. Essentially, employees are to be laid off in the inverse order of their permanent appointment. Errors in making determinations concerning “seniority” for the purposes of layoff are costly as the redress in such cases is the payment of back salary and benefits to the individual unlawfully laid off from his or her position.

For example, with respect to the State as an employer, the classified service the date of the individual’s “original appointment” to a position on a permanent basis controls, regardless of the fact that the individual was originally appointed a different the position from which he or she is laid off is in the competitive class [see CSL Section 80] or the noncompetitive class [see CSL Section 81].

In contrast, the Education Law provides that in the event “a board of education abolishes a position the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” This element – seniority – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by City of Plattsburgh v Local 788, 108 AD2d 1045. In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.
The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of permanent appointment in public service.
For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1. Under the contract A would have greater seniority for layoff purposes than B. But Sections 80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

This was the problem in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Section 80 controlled and thus Mousseau, rather than Racine, had to be laid off first. Plattsburgh won an order prohibiting arbitration. The Court said that Section 80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals said in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, Section 80 (1) obligates the employer to respect the seniority rights of its employees."

Similarly, in Szumigala v Hicksville Union Free School District, 539 NYS2d 83, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

Another element to consider is “continuous service.” Sections 80.2 and 80-A.2 of the Civil Service Law set out the effect, or lack thereof, of “interruptions in service” in the event of resignation followed by a reinstatement; appointment to a position in the unclassified service and other types of absences or leaves.

Among the many other factors to consider in layoff situations are the following:
The Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these sections (1976 Opinions of the Attorney General 7).

Once it is decided which competitive class positions [and with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.

Layoff units must be considered as well. Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have. With respect to the State as an employer, layoff units are set out in the Rules of the State Civil Service Commission [see 4 NYCRR 72].

Military service may be a factor in determining seniority as well. A veteran who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [Section 85, Civil Service Law]. Five years of service are added to an eligible disabled veteran's original date of permanent appointment; 2 years of service credit is added in the case of non-disabled veterans. Also, the spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if he or she meets the requirements set out in Section 85.7 of the Civil Service Law.

A blind employee is entitled to absolute preference in retention in cases of layoff.
Another aspect that may prove important in some situations involves determining Sections 80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to Section 45 of the Civil Service Law or a similar law. Such employees may have two seniority dates and it may be necessary to consider both when determining their retention rights in a layoff.

One is their date of seniority with respect to other public employees generally, usually determined on the basis of the date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise at the time of the takeover. Typically such "dual seniority" rights flow from legislation that may have been adopted in connection with the takeover.

Reprinted with permission from New York Public Personnel Blog. For subscription information contact
publications@nycap.rr.com Mention Adjunct Prof Blog for a free extended 45 day trial.
Mitchell H. Rubinstein

August 17, 2008 in Public Sector Employment Law

See also:

In the Matter of County of Chautauqua, Appellant, v Civil Service Employees Association, Local 1000, & c. et al., Respondents

Collective Bargaining Agreement Cannot Provide Provisional Employees Tenure

Collective bargaining agreement cannot provide provisional employees tenure
City of Long Beach v Civil Service Employees Association, Inc., Long Beach Unit, 8 N.Y.3d 465 [Judge Kaye and Judge Ciparick dissenting in part]

In March 2004, the New York State Civil Service Commission criticized the City of Long Beach for its poor control over provisional appointments in the classified service. The Commission noted that “a number of competitive class positions had been improperly filled with and retained by provisional employees; at least one for as long as 19 years.”

Following this, Long Beach advised a number of employees serving as provisional appointees that it believed that they were serving in a provisional capacity beyond the statutorily prescribed time.[1] These employees were provided with an opportunity to meet with Long Beach officials to discuss their employment status prior to the City’s taking any final employment action. Ultimately, Long Beach determined that the continued employment of certain provisional employees violated applicable the civil service law and regulations and terminated them.

CSEA filed grievances on behalf of the terminated provisional employees. CSEA alleged that pursuant to the terms of its collective bargaining agreement [CAB] with Long Beach, these provisional employees were “tenured” and thus entitled to be rehired in another position. According to CSEA, the following provisions in the CAB controlled:[2]

Section 6-1.0 - Definition of Tenure
Employees with one (1) year of service in the annual employment of the City, regardless of classification, will be deemed tenured employees. This period of tenure is to be computed retroactively and only employees enumerated in Section 2-1.0 shall be deemed non-tenured.

Section 6-1.1 - Rights of Tenured Employees
All tenured employees will be protected from separation from employment with the City for any reason other than (a) voluntary withdrawal; (b) dismissal for disciplinary reasons after a hearing pursuant to Section 75 of the Civil Service Law; (c) provisional employees in the competitive class will be protected by tenure with the exception that their employment may be terminated pursuant to Civil Service Law should it be necessary pursuant to Civil Service Law to appoint a qualified candidate from a Civil Service eligible list to their position. In that event, the displaced employee will be transferred by the City to another position in the City for which he/she qualifies, should such a position be open. A position will be deemed open if it was vacated within six (6) months of a tenured provisional employee’s displacement by a candidate from an eligible list certified by the Civil Service Commission.”

In response to CSEA’s demand for arbitration, Long Beach filed a petition in an effort to get a court order staying arbitration.

Supreme Court granted the City’s petition, holding that the CAB’s provisions providing for grievance and arbitration are not enforceable due to the provisional status of the employees. The Appellate Division agreed, ruling that “[b]ecause the provisions of the parties’ collective bargaining agreement upon which [CSEA] relies have the effect of limiting [Long Beaches’] ability to discharge provisional employees, those provisions are against public policy and unenforceable as a matter of law” (see Long Beach v CSEA, 29 AD3d 789 at 790).

The Court of Appeals affirmed the rulings by the two lower courts, noting that “the central issue in this case is whether the subject claims are arbitrable under the terms of a Collective Bargaining Agreement (CBA) between the parties.”

The Court of Appeals noted that although the general rule in such cases is that the “public policy in this State favors arbitral resolution of public sector labor disputes”, a dispute is not arbitrable when the subject matter of the dispute violates a statute, decisional law or public policy.

Here, said the court, the issue for which arbitration is demanded “is not arbitrable because granting the relief sought on behalf of the provisional employees under the so called ‘tenure’ provisions of the CBA would violate the Civil Service Law and public policy.”

Noting the State Constitution’s mandates that civil service appointments and promotions “shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive” (NY Constitution, Article V, Section 6), the Court of Appeals said that with respect to provisional appointments: “the Civil Service Law authorizes such appointments only when there is no eligible list available for filling a vacancy in a competitive class, and then only for a maximum period of nine months.”

The court also pointed out that Section 65.2 requires that in the event a provisional employee has been in a position for one month, the jurisdiction must hold a civil service examination for permanent appointment to the position.

As to the provisions set out in the CAB, the court said that: “The statutory scheme contained in Section 65 by its very terms prohibits any right of tenure to provisional employees. Properly construed, the Civil Service Law renders the provisions of the CBA upon which CSEA relies meaningless.”

The opinion then continues:

“We have long held that appointments made pursuant to Civil Service Law §65 carry no expectation nor right of tenure (see Montero, 68 NY2d 253; Hilsenrad v Miller, 284 NY 445 [1940]; Koso v Green, 260 NY 491 [1932]). Provisional employees “though in a sense holding positions in the competitive class, are, for reasons of necessity, exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by a period of tenure under the [Civil Service Law]” (Koso, 260 NY at 495). Such appointments “are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions” and “[w]hile such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment” (id. at 496). “

Significantly, the Court of Appeals held that the appointing authority cannot agree to provide superior rights to provisional employees holding positions beyond that statutory time period. Accordingly, said the court, “… the provisions under the CBA are unenforceable as a matter of law ….”

The court explained that “The failure to administer timely examinations prevents the identification and hiring of qualified candidates from eligible lists, as required by the Civil Service Law, and misleads provisional appointees into having expectations of continued employment beyond that permitted by law.”

As the terms of the CBA that attempted to provide “tenure rights to provisional employees after one year of service” such a provision is contrary to statute and decisional law and thus an arbitrator may not grant any relief pursuant to such a provision.

Judge Kaye, in her dissent, agreed that “an arbitrator may not rely on the portion of the CBA that purports to grant tenure to provisional employees after one year of service (section 6.1-0), or on the section that prohibits termination until and unless the City appoints from an eligible list (section 6-1.1[c]), and a stay should be granted with regard to arbitration of section 6.1-0 and the first part of 6-1.1.”

She, however, concluded that “the second component of the bargained-for section 6-1.1 (c) — that a displaced provisional worker will be transferred into an open position for which he or she is qualified — is arbitrable.”[3]

______________

[1] Civil Service Law Section 65.2 provides that “No provisional appointment shall continue for a period in excess of nine months.”

[2] Another case addressing a conflict between a Taylor Law contract provision and the Civil Service Law is City of Plattsburgh v Local 788, 108 AD2 104. As the result of the abolishment of a position, one of the two incumbents in the title, Mousseau, was "demoted" to a lower grade position. His date of permanent appointment was in April, 1979, while a co-worker, Racine, had an earlier date of permanent appointment, in February, 1978. The collective bargaining agreement provided that in determining seniority in the event of demotions in connection with a layoff the "date hired" was to be used. §80 of the Civil Service Law provides that the date of "permanent appointment" controls. Under the contract, Mousseau would be the senior employee since he had been hired before Racine while Racine was the more senior worker as defined by §80 because he received his permanent appointment first. The Union sought to arbitrate the alleged contract violation. The City resisted and won an order prohibiting arbitration. The Court ruled that the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away. Accordingly, it was required to follow the provisions of §80 of the Civil Service Law notwithstanding any Taylor Agreement provision to the contrary. The Court also noted that the contract specifically stated that the arbitrator did not have the power to rule on the legality or illegality of any provision of the agreement and, therefore, the arbitration was properly prohibited by the lower court. This decision is significant in that it calls attention to the fact that the Courts will not favor a Taylor Law contract provision over a statute when there is any substantial conflict between the two. The Appellate Division's decision in this case also notes that unless there is a clear indication in the agreement that a contract provision is subject to arbitration, Courts will "take (it) for granted" that the public employer did not intend to have a particular matter made subject to the contract's arbitration process (see Matter of Liverpool Central Schools, 42 NY2d 509.)

Enforcing Statutory Rights
Wednesday, August 15, 2007

Marino v Hauppauge UFSD, App. Div., 2nd Dept, 262 AD2d 321

If a public employee claims that some action by his or her employer violated his or her statutory rights, may the employer insist that the issue be resolved by the employee filing a grievance under a Taylor Law contract grievance procedure? No, the Appellate Division in the Marino case.

Frank Marino sued his employer, the Hauppauge Union Free School District, alleging that the district had violated his rights under Section 3013 of the Education Law by reducing his annual salary by $4,148.[1] The district persuaded a State Supreme Court judge to dismiss Marino’s complaint, contending that Marino complaint should be resolved under the grievance procedure set out in the Taylor Law agreement then in place.

The Appellate Division overturned the lower court’s dismissal of Marino’s Article 78 action. The Appellate Division noted that the collective bargaining agreement did provide a grievance procedure to resolve “any dispute between the parties concerning the interpretation of the terms and conditions of [the] agreement”. However, said the court, Marino had not raised any issue relating to the terms and conditions of his employment as set out in the agreement. What he was attempting to do was to “vindicate rights conferred upon him by Education Law Section 3013(1).”

The courts have consistently ruled that the statutory rights of teachers whose positions are abolished pursuant to either Sections 3013 or 2510 of the Education Law may not be changed by a collective bargaining agreement.

For example, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, 539 NY2d 83, the Appellate Division, citing Cheektowaga v Nyquist, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority for the purposes of layoff.

Considering a conflict between the CAB and the Civil Service Law, in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 N.Y.3d 465, the Court of Appeals said that where “the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.”

The same is true with respect to Taylor Law contract provisions that adversely impact upon layoff rights vested in employees in the classified service by Sections 80 or 80-a of the Civil Service Law [see Plattsburgh v Local 788, 108 AD2d 1045].

The Appellate Division, citing a number of cases including Matter of Board of Educ. of Barker Cent. School District, 209 AD2d 945, concluded that Marino “had every right to seek redress for the alleged violation of his statutory rights” by bringing a timely Article 78 action, “even after having begun a grievance procedure which related exclusively to an alleged violation of his contract .”

Why? Because, the court explained, “the issues presented and the remedies sought in each forum were separate and distinct,” quoting from England v Commissioner of Education, 169 AD2d 868, among other cases, in support of its ruling.

[1] Section 3013 deals with layoff upon the abolishment of a position by a school district or a BOCES and provides, in pertinent part, for the reinstatement of a person who has been laid off to “an office or position similar to the one which such person filled without reduction in salary or increment....”

By Public Employment Law Press on Wednesday, August 15, 2007


August 17, 2008
Layoffs Under New York Civil Service Law
LINK

Layoff considerations
Civil Service Law Sections 80 and 81-A; Education Law Sections 2510; 3013

The financial difficulties faced by the State and its political subdivisions has generated concern that public employers may have to abolish jobs resulting in layoffs.

Both the Civil Service Law and the Education Law contain provisions dealing with layoff. Essentially, employees are to be laid off in the inverse order of their permanent appointment. Errors in making determinations concerning “seniority” for the purposes of layoff are costly as the redress in such cases is the payment of back salary and benefits to the individual unlawfully laid off from his or her position.

For example, with respect to the State as an employer, the classified service the date of the individual’s “original appointment” to a position on a permanent basis controls, regardless of the fact that the individual was originally appointed a different the position from which he or she is laid off is in the competitive class [see CSL Section 80] or the noncompetitive class [see CSL Section 81].

In contrast, the Education Law provides that in the event “a board of education abolishes a position the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”

This element – seniority – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by City of Plattsburgh v Local 788, 108 AD2d 1045. In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1. Under the contract A would have greater seniority for layoff purposes than B. But Sections 80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

This was the problem in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Section 80 controlled and thus Mousseau, rather than Racine, had to be laid off first. Plattsburgh won an order prohibiting arbitration. The Court said that Section 80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals said in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, Section 80 (1) obligates the employer to respect the seniority rights of its employees."

Similarly, in Szumigala v Hicksville Union Free School District, 539 NYS2d 83, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

Another element to consider is “continuous service.” Sections 80.2 and 80-A.2 of the Civil Service Law set out the effect, or lack thereof, of “interruptions in service” in the event of resignation followed by a reinstatement; appointment to a position in the unclassified service and other types of absences or leaves.

Among the many other factors to consider in layoff situations are the following:

The Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these sections (1976 Opinions of the Attorney General 7).

Once it is decided which competitive class positions [and with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.

Layoff units must be considered as well. Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have. With respect to the State as an employer, layoff units are set out in the Rules of the State Civil Service Commission [see 4 NYCRR 72].

Military service may be a factor in determining seniority as well. A veteran who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [Section 85, Civil Service Law]. Five years of service are added to an eligible disabled veteran's original date of permanent appointment; 2 years of service credit is added in the case of non-disabled veterans. Also, the spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if he or she meets the requirements set out in Section 85.7 of the Civil Service Law.

A blind employee is entitled to absolute preference in retention in cases of layoff.

Another aspect that may prove important in some situations involves determining Sections 80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to Section 45 of the Civil Service Law or a similar law. Such employees may have two seniority dates and it may be necessary to consider both when determining their retention rights in a layoff.

One is their date of seniority with respect to other public employees generally, usually determined on the basis of the date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise at the time of the takeover. Typically such "dual seniority" rights flow from legislation that may have been adopted in connection with the takeover.

Reprinted with permission from New York Public Personnel Blog. For subscription information contact

publications@nycap.rr.com Mention Adjunct Prof Blog for a free extended 45 day trial.

Mitchell H. Rubinstein

August 17, 2008 in Public Sector Employment Law