Know Your Rights
Provisionals Lose Protection

By JAMES A. BROWN

Last month, I reported on a significant setback for civil servants, namely their loss of Weingarten rights under the state's Taylor Law. In today's column, I address the New York Court of Appeals' latest blow, targeted, this time, at provisional employees. In Matter of City of Long Beach, the high court nullified any collectively-bargained provisions which confer on provisionals a right to continued employment.

James A. Brown is an attorney based in Manhattan. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

The court decision clearly seems intended to bolster the civil service's "merit and fitness" system. In so doing, the high court effectively extinguished the arbitration rights of certain provisionals who could invoke arbitration under collective-bargaining agreements to challenge their terminations. New York City provisionals employed for more than two years, who are covered by the citywide contract, are among those adversely affected by the court's decision.

Arbitration Stayed

In City of Long Beach, provisional employees were given limited job protection pursuant to a collective-bargaining agreement which granted them "tenure" after one year of employment. Yet after a state report criticized Long Beach's 30-year practice of employing provisionals long-term, Long Beach did an abrupt about-face. Long Beach terminated certain provisionals and then refused to honor the tenure provision which would have made them eligible for transfers.

Certain terminated provisionals then invoked arbitration. In response, Long Beach applied in state court to stay the arbitration. Long Beach argued that its own "tenure" provision violated the State Constitution and Civil Service Law § 65 which, in part, mandates that provisionals may only be employed for nine months. The lower court sided with Long Beach and stayed the arbitration; the intermediate appellate court affirmed.

The Court of Appeals also affirmed the stay of arbitration. It did so notwithstanding the public policy favoring arbitration to resolve public-sector labor disputes. Citing Section 65's nine-month limitation on provisional employment, the court stated that parties in collective bargaining cannot "agree to provide superior rights to provisional employees holding positions beyond that statutory period." According to the court, the statutory nine-month limitation made Long Beach's contractual tenure provision "meaningless."

The high court also reviewed other limitations on provisional employment. For example, Civil Service Law Section 65 permits provisional appointments only when no eligible list exists for filling a vacancy in a competitive title. Section 65 requires, with a limited exception, that provisional appointments must terminate within two months of the establishment of an appropriate eligible list. Finally, Section 65 mandates that a civil service examination must be given in any title in which a provisional has served at least one month. As I have reported over the years, the city regularly violates these civil service laws with impunity.

Cited Law Violations

In City of Long Beach, the court underscored that retaining provisionals for more than nine months, and failing to administer timely exams, are violations of the Civil Service Law. Thus, the court presented itself as a champion of a civil service system based on merit selection and competitive examination. The court observed that granting job protection to terminated provisional employees "who have served beyond the statutory time limit would only perpetuate the harm" associated with a non-competitive "spoils system."

While the court sought to strengthen the civil service system, its decision leaves behind those provisionals covered by the citywide agreement (or by other contractual job protection provisions). These same provisionals took their jobs under the belief that after two years they would attain some job protection by being able to invoke arbitration. The court advises us that provisionals may not gain such protection through collective bargaining.

No Remedy in Sight

And yet Civil Service Law reform may never come for those provisionals now seeking to reacquire some job security. This is because lifting the statutory limitations placed on provisionals may not be possible. State law must comply with the State Constitution, and New York's Constitution mandates that appointments to the civil service be based on "merit and fitness."

All of which is likely to leave all provisionals (regardless of their bargaining unit status or years of employment) subject to termination at will. The only solution may lie with the city administering more civil service exams, thereby permitting provisionals to compete for the job security afforded permanent civil servants.