Disciplinary proceedures set out in a collective bargaining agreement trumped the Civil Service Commission's probationary termination rules

Disciplinary proceedures set out in a collective bargaining agreement trumped the Civil Service Commission's probationary termination rules Gordon v Town of Queensbury, App. Div., 256 AD2d 784 Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town's action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made "in bad faith." Rule XIV.5 of the Warren County Civil Service Commission requires that "a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto." Here, however, the Appellate Division decided that "the disciplinary provisions" set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission's rules. In its analysis of the case, the court pointed out that: 1. A county civil service commission has the authority to promulgate rules for the "conditions and extent of probationary service" which [when filed] have the force and effect of law. 2. "A violation of such rules may be sufficient to trigger a trial on the issue of bad faith." 3. The former employee "bears the burden of presenting competent proof that his or her dismissal was made in bad faith." But, the court said, "it is equally true … that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is 'entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement." The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon's collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission's rules by the town did not provide any basis for Gordon's claim of bad faith. Also noted in the opinion was the fact that "it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith. Since Gordon "failed to tender proof sufficient to raise a triable issue of fact in this regard," the court decided that no hearing was required concerning the Town's motivation in discharging him from the position and dismissed the appeal. NYPPL

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