Competing union interestsBuffalo CSD v Local 264, 270 AD2d 814 Suppose an arbitration award in favor of an employee in one collective bargaining unit adversely affects an employee of the same employer in another collective bargaining unit. What can the second employee's union do about the award? This was the issue considered by the Appellate Division, Fourth Department, in the Buffalo City School District case. Its conclusion: In this instance, nothing! The two unions involved, AFSCME Local 264 [Local 264] and the Professional, Clerical and Technical Employees Association [PCTEA], represented different negotiating units of individuals employed by the Buffalo City School District. The PCTEA collective bargaining agreement included a provision that gave its unit members preference in selection for promotion. Here the first and second ranking eligibles on a promotion list were Local 264 unit members; third on the list was a PCTEA unit member. The Board promoted the first eligible on the list, a member of the unit represented by Local 264, to the vacancy. Its action, of course, was consistent with the exercise of its discretion within the meaning of Section 61 of the Civil Service Law — the so-called rule of three. PCTEA, however, filed a contract grievance, claiming Buffalo had violated the collective bargaining agreement when it appointed the Local 264 unit member and ultimately the matter went to arbitration. The arbitrator sustained PCTEA position, ruling that the Board, by appointing a Local 264 unit member to the vacancy had: 1. Violated its collective bargaining agreement with PCTEA; 2. Violated a past practice; and 3. Failed to comply with the ruling of the Court of Appeals in Professional, Clerical and Technical Employees Association v Buffalo Board of Education, 90 NY2d 364. In PCTEA v Buffalo, the Court of Appeals held that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain members on an eligible list where a probationary period precedes their permanent appointment.* In contrast to the situation in Buffalo v Local 264, in the earlier case, PCTEA v Buffalo, the highest-scoring candidate on the promotion eligible list for the position, as well as the next four individuals on the promotion list, were all PCTEA unit members. The arbitrator directed the Board to promote the PCTEA member, who was ranked third on the list, to the position with back pay, which, of course, meant that the Local 264 member would be terminated from the position. The Board brought an Article 75 action in an effort to vacate the award. Local 264 tried to intervene in the litigation on behalf of its member, but the Appellate Division said that it did not have any standing to do so. The Appellate Division also reversed the lower court's ruling vacating the award. Why didn't Local 264 have standing? Because, the Appellate Division explained, [a]lthough the rights of the employees represented by Local 264 are adversely affected by the arbitration award, Local 264 was not a party to the collective bargaining agreement at issue or the arbitration. Despite the award's adverse impact on a member of Local 264 and the contractual preference favoring PCTEA members for selection for promotion, the court said that no strong public policy was violated justifying the vacating of the award. Further, said the court, the fact that Local 264 members were first and second on the promotion list did not change the result, rejecting the Board's argument that the arbitration award violated the merit and fitness mandate set out in Article V, Section 6 of the State Constitution. While the member of Local 264 who was first on the promotion list was actually selected for the appointment, the court said that Article V, Section 6, does not require that the top candidate be selected. The negotiated agreement, however, mandated that the PCTEA member highest on the list, and otherwise reachable for appointment, be selected for the appointment. Since Section 61 of the Civil Service Law permits the selection of one of the top three candidates from the eligible list, the award does not automatically bar members of Local 264 from promotional positions for which a member of PCTEA might be considered because a PCTEA member may not be one of the top three candidates. The court's rationale for upholding such a provision contained in a collective bargaining agreement: The promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law. Accordingly, in the absence of a prohibition in statutory or decisional law, or countervailing public policy, provisions which relate to the use of preferences in the promotion of unit members based on examination scores concern a term or condition of employment and thus are a proper subject for collective bargaining and subsequent resolution of disputes through contract arbitration procedures. * Randall comments: The decision states that the appointment of the PCTEA unit member does not become a permanent appointment until the expiration of a 60-day probationary period. Thus, said the court, the Board has the opportunity to assess other character traits that may have been unmeasurable by the competitive examination. I believe that it is more accurate to characterize such an employee's status as permanent subject to the satisfactory completion of a probationary period as all such probationary appointments are permanent appointments or, under certain circumstances, a contingent permanent appointment. As an example, most probationary periods are set with a minimum and a maximum period of probation. Courts have held that a probationary employee in the competitive class who is to be dismissed before completing his or her minimum period of probation is entitled to notice and hearing within the meaning of Section 75 of the Civil Service Law. Essentially individuals holding permanent appointment in the competitive class, certain employees in the non-competitive class, veterans who served in time of war and exempt volunteer firefighters are covered by Section 75. A probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to completing his or her maximum period of probation for the position. If the employee is retained after completing the maximum period of probation, he or she has acquired tenure in the position for the purposes of Section 75. Another example: for the purpose determining seniority in layoffs pursuant to Sections 80 and 80-a of the Civil Service Law, the individual's initial date of uninterrupted permanent service controls. Such seniority runs from the date on which the employee commenced his or her original probationary period, not the date on which he or she satisfactorily completed that probationary period. .
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