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County to review step/grade placements of certain employees promoted to determine if the CBA provisions were correctly applied

County to review step/grade placements of certain employees promoted to determine if the CBA provisions were correctly applied
Civil Serv. Empl. Assn., Inc. v County of Nassau, 2009 NY Slip Op 51819(U), Decided on July 27, 2009, Supreme Court, Nassau County, Judge F. Dana Winslow, [Not selected for publications in the Official Reports]

The Civil Service Employees Association [CSEA], as the bargaining agent for a unit of employees within Nassau County, sued Nassau County alleging that the County had breached the certain provisions of the Collective Bargaining Agreement (CBA) between it and the County when Nassau ?failed to properly compensate employees who were promoted during the period from January 1, 1998 through December 31, 2000.?

CSEA asked the court to direct Nassau to place the employees affected in proper step and/or grade and require the County pay monetary damages as a result of its breach of the CBA.
Nassau?s defense:

1. It had not breached of contract; and, in any event,

2. The action is untimely and barred by the doctrine of res judicata.

The issue: Did Nassau breach a CBA provision that provided that during the relevant time period: "... if a promotion or a change to a position in a higher salary grade ? would result in less than a $1,000 annual raise, then, ? any employee promoted or changed to a position in a higher salary grade shall be placed on a step (in the new Grade) which will result in an annual salary increase of at least $1,000."

Earlier Arbitrator Martin F. Scheinman had issued an arbitration award sustaining the grievance submitted on behalf of CSEA members that received promotions in 2001 and directed Nassau to review the promotions in that period for purposes of determining whether or not the promoted employees were provided with the salary adjustment required under the terms of the CBA.

The County argued that the Triborough doctrine, which states that: "It shall be an improper practice for a public employer or its agents ... to refuse to continue all the terms of an expired agreement until a new agreement is negotiated? controls and thus the prior agreement, which did not provide the minimum salary increase upon such promotions, was applicable in this instance. Further, Nassau contended that determinations concerning salary grade and step are made on the day of the promotion and thus it is not obligated to go back and recalculate salaries based upon a retroactive provision in a subsequent contract.

In rebuttal, CSEA said it and Nassau had executed a Memorandum of Agreement that incorporated a proposal for a $1,000 minimum salary and therefor even if the Triborough doctrine applied, the prior CBA remained in effect only until February of 1999, and not until September of 2000.

Judge Winslow decided that the Memorandum of Agreement was operated as a successor CBA (replacing the prior CBA) from the date it became effective until the ratification of the final 1998-2002 CBA in September of 2000.

Courts, said Judge Winslow, ?are willing to give retroactive effect particularly where the retroactive provision or contract embodies a prior oral agreement, or amends a prior agreement, or fills a gap between a prior and a current contract,? citing Debreceni v Outlet Co., 784 F.2d 13.
Noting that the retroactive provision set out in the Memorandum ?is of the sort generally approved by the Courts,?, Judge Winslow ruled that:

1. CSEA?s action was neither barred by res judicata nor untimely:

2. Nassau breached Section 25-5 of the 1998-2002 CBA to the extent that it improperly placed employees promoted in calendar years 1999 and 2000 in the incorrect step/grade on the relevant graded salary schedule: and

3. Nassau is obligated to review and recalculate step/grade placements made during this period.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_51819.htm

Full post as published by New York Public Personnel Law on September 02, 2009 (boomark / email).