County of Rockland v. Rockland County Unit of Civil Service Employees Ass'n

O’Connor, J.,

dissents and votes to affirm the judgments, with the following memorandum: I would affirm the judgments appealed from and continue the stays of arbitration. The employees on whose behalf arbitration is sought want to be compensated for what they allege to be their long-term performance of out-of-title work. To fashion a remedy the arbitrator would be forced to grant an award which would contravene public policy (see Matter of Niagara Wheatfield Administrators Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68, 73; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509). Accordingly, because the matter in issue exceeds the permissible scope of arbitration, I respectfully dissent. Civil service appointments and promotions in this State are to be made on the basis of merit and fitness, to be determined by competitive examination (New York Const, art V, §6). Absent a temporary emergency situation, out-of-title work is expressly prohibited (Civil Service Law, § 61, subd 2). It is noted that appellant does not present any viable claim that the employees involved in these proceedings fit within the statutory standard of a temporary emergency situation (see Civil Service Law, § 64). In light of the clear mandate against compensation for out-of-title work, it was proper to stay the requested arbitrations. The disavowal of any desire for a reclassification by the employees is irrelevant to the analysis of this matter, because they are not entitled to increased compensation even absent a claim for reclassification. To allow payment for the prolonged performance of out-of-title work would be to accomplish de facto that which could concededly not be done de jure. I believe that any reliance upon section 100 (subd 1, par [d]) of the Civil Service Law is misplaced for two distinct reasons. First, by its very terms, it applies only to a situation where there is an express provision in a collective bargaining agreement prohibiting the assignment of employees to duties substantially different from those appropriate to the title to which the employees are certified. No such provision exists in the contract at issue. Second, the provision would appear to contemplate a situation where an employee is forced by his employer to perform out-of-title work against his will. In this matter, the contract, in complete disregard of the public policy of this State, expressly anticipated and provided for additional compensation

for out-of-title work. This disregard for the proper operation of the civil service system should be neither approved nor condoned. Section 100 (subd 1, par [d]) of the Civil Service Law is therefore inapposite to the demands for arbitration presented herein.