Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the titleMatter of Brynien v Governor's Off. of Empl. Relations, 2010 NY Slip Op 09329, Appellate Division, Third Department Kenneth Brynien, as President of the New York State Public Employees Federation, filed out-of-title grievances with Office of Mental Health (hereinafter OMH), challenging the full-time assignments of the employees to perform duties at two OMH facilities where they were employed. The employees hold civil service positions classified in other than "Treatment Team Leader." The out-of-title grievances alleged that the employees had been improperly assigned to perform and had been performing the duties of a Treatment Team Leader [TTL], Salary Grade M-1, a title designated "managerial" for the purposes of collective bargaining in violation of the relevant collective bargaining agreement. After unsuccessful administrative appeals, Brynien initiated two CPLR Article 78 proceedings challenging the administrative determinations. Supreme Court dismissed both petitions and the Appellate Division affirmed the lower courts "well-reasoned written decision" The Appellate Division said "Out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2)" and, in this instance, by Article 17 of the governing collective bargaining agreement. As to the merits of the Article 78 petitions, the court said that its review of out-of-title work grievances focuses on "whether the new duties are appropriate to [the affected employees' job] titles and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [their respective] job specifications." Further, said the court, "Judicial review of [the Governor's Office of Employee Relations'*] determination in this context is limited to whether it is arbitrary, capricious or without any rational basis." The Appellate Division explained that although an employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work, here the dispositive inquiry is whether the Governor's Office of Employee Relations rationally concluded that the affected employees did not meet the minimum baseline requirements of TTLs such that the grieved duties are appropriate to their job titles and are similar in nature to, or a reasonable outgrowth of, the duties listed in their job specifications. Holding that in its view GOER did so, the Appellate Division dismissed Brynien's appeal. * The Governor's Office of Employee Relations was the ultimate administrative appellate body in this instance. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09329.htm
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