Thrasher v. Genesee County Civil Service Commission

Order unanimously reversed on the law without costs and application for stay of arbitration granted. Memorandum: Judith Thrasher was employed as a probation officer with the County of Genesee. She was advised of the availability of employment with the County Department of Social Services as a child care social worker. She successfully applied for that position and resigned from her permanent position of probation officer. Approximately two months after a perfor*967manee evaluation, Thrasher was terminated from her employment as a child care social worker "due to unsatisfactory performance”, and the County Probation Department refused to reinstate Thrasher to her former position. Thrasher filed a grievance, arguing that she was a probationary employee and was thus entitled to be restored to her former permanent position pursuant to article 9 of the collective bargaining agreement. The grievance was rejected by the county upon the grounds that she was a provisional employee in a child care social worker position and that the agreement covered only permanent employees. She then filed a demand for arbitration and commenced a separate CPLR article 78 proceeding seeking reinstatement to her former position of probation officer. This appeal is from an order that denied the petition of Genesee County for a stay of arbitration, directed the parties to proceed with arbitration, and directed that further matters on a related article 78 proceeding be stayed pending resolution of the arbitration proceeding.

Supreme Court erred in concluding that article 9 of the agreement covered Thrasher’s job status. Article 1 of the agreement unambiguously states that the agreement covers permanent employees. County personnel records indicate that Thrasher was employed as a child care social worker on a provisional basis. By law, she could not be a permanent employee because she had not been appointed as the result of a competitive examination (see, Civil Service Law §§ 51, 52, 61; Matter of Hilsenrad v Miller, 284 NY 445, 451). Because Thrasher was not a permanent employee she was not covered by the agreement and was not entitled to arbitration. (Appeal from order of Supreme Court, Genesee County, Wolf, J.— arbitration.) Present — Denman, J. P., Boomer, Balio and Davis, JJ.