Despite CSEA Pact
Rule Provisionals Can't Get Tenure

By REUVEN BLAU

The state's highest court ruled last week that the Civil Service Employees' Association cannot grieve the firings of 12 long-term provisional employees based in Long Beach.

JUDITH S. KAYE: A dissenting opinion.

The CSEA contended that the veteran provisionals were unfairly terminated, because a provision in its collective-bargaining agreement states that all employees serving for more than a year are automatically tenured.

City Barred by Law

"The Civil Service Law, however, clearly sets a time limitation on provisional appointments and that period is nine months," the Court of Appeals's 5-2 ruling stated. "The city therefore cannot agree to provide superior rights to provisional employees holding positions beyond that statutory time period."

The decision affirmed two lower-court rulings, which stayed the union's request for arbitration.

The case started in March 2004, after the State Civil Service Commission issued a report, which admonished Long Beach for its poor control over provisional appointments. The report noted that a number of Competitive-Class positions had been improperly filled with and retained by provisional employees.

In response, the city appointed a new Civil Service Commission that ordered the city to address the issue. The city then met with the provisional employees to discuss their employment status. After those conferences, the city determined that the continued employment of certain provisionals violated applicable civil service laws and regulations and fired them.

A 15-Year Provisional

One of those employees, Maria Almonte, had worked for 15 years as a Bus Dispatcher even though she failed the test for that position.

The CSEA filed a grievance on behalf of those workers, arguing that under the terms of its contract the employees should be deemed tenured after one year of service and therefore entitled to be rehired to another position.

The Court of Appeals, however, ruled that contract stipulation contradicted state law. "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," Judge Eugene F. Pigott Jr. wrote in the majority opinion.

State agencies are allowed to hire or promote workers provisionally when they face an immediate need and a list is not available. Provisionals are supposed to be made permanent Competitive-Class employees or be replaced within nine months by candidates drawn from lists, but this rule is often ignored.

'Just Perpetuates Harm'

"Allowing parties to enter into agreements that give tenure rights to provisional employees who have served beyond the statutory time limit would only perpetuate this harm," the majority decision stated. "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."

Chief Judge Judith S. Kaye along with Judge Carmen Beauchamp dissented in part, arguing that Ms. Almonte should be treated differently because of her extended years of service. Ms. Kaye noted that Ms. Almonte wasn't looking to remain in the title of Bus Dispatcher, but, rather, wanted to be placed back into the Bus Driver position, where she served from 1985 to 1989.

"Placement of a terminated provisional employee into an open position would not disrupt a merit-based appointment," Ms. Kaye argued. "It would only acknowledge a bargained-for preference in favor of a provisional employee within a field of candidates qualified for a noncompetitive position, or within a competitive position for which there were no eligible candidates."

CSEA spokesman Stephen Madarasz said the union was 'disappointed' in the court's decision. "We had hoped that the law would be judged more broadly," he said. "We were simply trying to do right by our members in this case."