PEF’s Contract Administration Department, under the direction of Robert Carrothers, provides support for all contract negotiations, coordinates negotiations on issues which arise between contracts, and assists Field Services in implementing and enforcing the agreements.
Contract Administration serves as the point of contact between PEF and the Governor’s Office of Employee Relations (GOER), and we deal each day with the myriad issues which need to be raised to a statewide level. For example, the department has been involved in ongoing discussions with GOER over the creation of the Human Services Application Service Center and the Data Center under the auspices of the Office for Technology. The department also provides staff support for the various contract committees including: statewide and executive-level labor/management committees, Workers’ Compensation, Health Benefits, Employment Continuity, and Employment Security. The Department also provides support to Field Services in negotiating local labor/management agreements that impact on contractual rights. For example, we have been very involved in the development of local shift and pass-day agreements, which affect nurse seniority rights under Article 25.2(c). Finally, we continue to work toward the goal of having the department become the "institutional memory" for PEF negotiations, grievance and arbitration history.
PS&T Unit Contract Negotiations
The department is now actively preparing for the upcoming round of PS&T contract negotiations. This negotiation will be the primary focus of the department for the next year. The members of the bargaining team have been named, with Dr. Eric Miller serving as chairperson. In addition, Irwin Bluestein, Esq., a partner in the union-side labor-law firm of Vladeck, Waldman, Elias and Engelhard has been retained as PEF’s chief negotiator. Carrothers will be coordinating support from PEF staff and from our international affiliates for the contract talks.
To prepare for negotiations, PEF has scheduled town meetings throughout the state to hear from members about their priorities for the upcoming negotiations. Miller and Carrothers have spent several days in each region and Bluestein also attended at least one meeting in each region. As of this writing, we expect to have met several thousand PEF members at these meetings. In addition, Miller, Bluestein and Carrothers will meet with staff to elicit their opinions on what improvements could be made in the contract. To further prepare for negotiations, Contract Administration provided a thorough training on the PEF contract, and supplemented these sessions with negotiations training for the entire bargaining team at Cornell Institute for Labor Relations.
Small Unit Negotiations
PEF has continued to grow beyond the PS&T bargaining unit of professionals employed by the State of New York. In the last year, the Public Employment Relations Board certified a new bargaining unit of Oswego County professionals and PEF successfully weathered an attempt to decertify the bargaining unit at the Coxsackie Regional Medical Unit. That means PEF is now negotiating and administering contracts for bargaining units comprised of both county and private-sector employees. In addition to the two mentioned above, these include bargaining units at: the City of Albany Housing Authority; Albany County Probation Department, Lockport Memorial Hospital; National Development and Research Institute; and the NYS Canal Authority.
Contract Administration provides staff support for negotiations and interfaces with other departments at PEF headquarters to ensure that contract teams receive the assistance they need to secure the best contract possible. Staff support provided ranges from drafting contract language, and analyzing compensation packages and related financial proposals to actually appearing at negotiations, where necessary, to provide technical support to the teams at the table. Currently, we are providing support to negotiations at Albany County Probation Department, Oswego County, and Coxsackie Regional Medical Unit.
In June, a joint impasse was declared in the Owsego County negotiations because PEF refuses to agree to two county demands. One would deny "just cause" discharge and discipline rights to some bargaining-unit members. PEF takes the position that every member should have the same contractual due-process rights when faced with the possibility of discharge or discipline. The other county demand that PEF won’t concede to involves the continuation of salary caps that were legislated prior to the existence of the PEF-represented bargaining unit.
Triage and Expedited Arbitration
The 1995-99 PS&T Unit Agreement included a triage and expedited-arbitration process for resolving contract grievances. This procedure provides a mediation process before a master arbitrator, followed by expedited arbitration for cases that are not resolved. Contract Administration presents cases at triage and at expedited arbitration and coordinates the implementation of this process generally. In addition, where PEF or the state determine that this process is inappropriate for a particular case, Contract Administration also presents contract grievances in "regular" arbitration. Finally, to improve statewide coordination of contract enforcement, Contract Administration reviews all contract grievances before a decision is made to proceed to arbitration.
Generally, we have been extremely happy with the triage and expedited-arbitration process. As we reported in the last convention report, through this process, we were able to address a backlog of approximately 150 grievances that had been pending at arbitration. Since the last convention report, we have continued in our efforts at wrapping up a few remaining "old" cases pending at arbitration and have essentially been working on a current case load. As a result, we have largely abolished the multi-year delays which were previously common at Step Four of the Article 34 contract-grievance procedure. Some of the notable arbitration decisions and settlements we have obtained since the last convention report are outlined below.
Article 12.17 – Timekeeping
In a grievance which the state "opted out" of triage and expedited arbitration, we have very successfully settled our dispute regarding the use of an electronic-swipe-card system for timekeeping purposes at the SUNY-Syracuse Health Science Center (HSC). This grievance arose when certain PS&T Unit members at the HSC were directed to use electronic swipe cards to document their times of arrival and departure to and from work. PEF grieved, alleging a violation of Article 12.17 of the agreement. This provision provides that no employee in the PS&T Unit shall be required to punch a time clock or record attendance with a timekeeper. After extensive negotiations, during which the HSC attempted to explore alternative methods of implementing the system which might have complied with Article 12.17, the HSC finally agreed to cease and desist entirely from requiring the use of electronic swipe cards to document time at work. We are extremely pleased with the outcome of this grievance.
Article 20 – Personal History Folder and Counseling
A recent favorable decision in expedited arbitration involved the Department of Correctional Services. The master arbitrator held that the state violated Article 20.4 of the collective-bargaining agreement when it refused to remove 13 documents that were more than three years old from the grievant’s personal-history folder. Article 20.4 provides that upon an employee’s written request, material over three years old shall be removed from the personal-history folder, except unsatisfactory-performance evaluations, personnel transactions, preemployment materials and notices of discipline and all related records.
Here, the grievant requested that all counseling memos over three years old be removed from her personal-history folder. However, at the time of her request, various notices of discipline were pending which were issued while the counseling memos were still less than three years old. The state argued that the counseling memos should remain in her personal history folder because the memos were "related records" to these NODs and, therefore, covered by the exception to the three-year rule of Article 20.4 However, the arbitrator held that the explicit language of Article 20.4 requires that counseling memos be removed at a member’s request after three years, regardless of whether an NOD has been issued in the interim. In doing so, the arbitrator determined that the counseling memos were not "related records" even though they were less than three years old when the NODs were issued.
Article 22 - Consolidated Clinical Labs Contracting Out Grievance
We have settled a contracting-out grievance for eight grievants laid off from the Institute for Basic Research - Consolidated Clinical Laboratories (CCL) by OMRDD. The layoffs occurred when CCL was closed due to budgetary constraints. While OMRDD did not contract out the laboratory services performed by CCL, facilities in various state agencies which had previously had lab work completed by CCL began contracting their lab work out to private labs. During settlement discussions, the state acknowledged that this constituted "contracting out" under Article 22 of the 1995-99 agreement despite the fact that OMRDD did not specifically enter a contract to replace the work performed by CCL.
Depending on whether and when each of the grievants was rehired by the state, the grievants will receive individualized benefit packages designed to compensate them for the failure to provide them with Article 22 benefits in a timely manner. These individual packages include various combinations of: back pay, severance, salary protection, and primary and secondary redeployment-list rights. The monetary, portion of the settlement is worth approximately $125,000.
Article 33 - Discipline
Another DOCS expedited-arbitration decision involved a vocational instructor who was served with a NOD and suspended without pay. It was later determined that the suspension was without probable cause. While the grievant was suspended, summer-session teaching assignments were made and despite the fact that the grievant was offered summer-session teaching every year of his employment, he received no summer assignment that year.
The master arbitrator found that but for the disciplinary suspension, the grievant would have been offered summer employment. This was so because the correctional facility in question had never exercised its discretion to deny summer employment to vocational instructors for any other reason. As a result, the master arbitrator held that summer employment was a "privilege" within the meaning of Article 33. 5(a) and denial of summer employment to the grievant amounted to discipline without the process due under Article 33. Thus, DOCS imposed a penalty in violation of Article 33. As a result, the master arbitrator ordered that the grievant be paid what he would have earned had he been allowed to work the summer.
In another Article 33 expedited arbitration, the master arbitrator ruled that an employee who retired while facing disciplinary charges could not be deprived payment for his accrued vacation following his retirement from state service. The pending notice of discipline included a proposed penalty of loss of vacation accruals. Following the grievant’s retirement, the pending disciplinary charges were never adjudicated. However, the agency refused to pay the employee his accrued vacation. The master arbitrator found this violated Article 33 because the employee was prevented from challenging the imposed penalty of loss of vacation credits when the state chose not to proceed with the notice of discipline. Depriving the employee of his accrued vacation, without the benefit of the due process provided by Article 33, violated the agreement.
A consent order of note involving an Article 33 dispute resulted in a $2,750 payment to a DOCS dentist who was denied a reclassification to a higher grade. We alleged that this had occurred for disciplinary purposes in violation of Article 33. The consent order also provided that it was appropriate for this grievant and a colleague (both of whom had been directed not to speak to other dentists) to once again consult with other dentists.
In another consent order of note, we restored 95 hours of vacation accruals to a grievant who exceeded the April 1 cap for vacation accruals while he was on disciplinary suspension. When the grievant was exonerated and returned to work, the state re-credited his accruals earned prior to and during his suspension, but did not credit those accruals which exceeded 40 days on
April 1, even though he had been unable to charge them prior to April 1 while on suspension. We argued that the failure to restore the grievant with all accruals earned and not used prior to and during his suspension constituted discipline in violation of Article 33 of the agreement.
Unit Determination
The rules of the Public Employment Relations Board (PERB) allow PEF to challenge the bargaining unit designation of any position which it believes belongs in the PS&T unit. (Although PERB’s rules permit the challenge of any position, the AFL-CIO constitutional prohibition on "raiding" limits the scope of our challenge to positions currently designated Managerial/Confidential.)
The "window period" for submitting this challenge opened in August 1998 and PEF formally challenged the unit designation of more than 1,800 M/C positions. (This number includes some positions which are currently vacant.) Our challenge includes more than 300 positions in OMH, more than 200 in OMRDD, and approximately 154 in DOT. We challenged between 75 and 100 positions each in DOH, the Insurance Department, DOCS and EnCon. Among the most populated titles we challenged were treatment team leader (both the OMH and OMRDD parenthetics) and the transportation maintenance engineers.
During this process, the state has also filed a petition seeking to move positions from the PS&T Unit to M/C. In its petition, the state has challenged 16 positions, half of which are attorneys.
Over the next several months, GOER will ask the agencies to send any documentation they might have to support continuing the M/C designation of the positions PEF has challenged. In many cases, GOER will not fight the change in negotiating unit. PEF and GOER will then review the documentation to determine which positions, if any, can be resolved. Those positions which remain in dispute will be scheduled for hearing before PERB.
Banking Department
PEF and the Banking Department jointly made application to Classification and Compensation for a reallocation of the bank examiner title series. (This application was an outgrowth of various labor/management initiatives.) In early February, the application was denied by the director of classification and compensation. Contract Administration worked closely with the Banking Department to formulate an appeal to the Civil Service Commission which was heard February 9, 1998. At that meeting, by a 3-0 vote, the commission sustained our appeal and approved a two-grade reallocation for all levels of the title series.
Following the successful appeal, we continued our joint efforts with the Banking Department to win the approval of the Division of Budget. After months of hard work, including petitioning by the membership and their lobbying of key legislators, the reallocation was approved in June 1998. Aside from the success on the particular issue, the labor-management cooperation which was instrumental to winning this reallocation has become a model for other agencies and titles interested in reallocations.
PEF Joint Committee on Health Benefits (JCHB)
The PEF Joint Committee on Health Benefits (JCHB) is authorized under Article 9.17 of the PEF/NYS contract to work with the appropriate state agencies to review and oversee the various health plans available to PS&T employees represented by PEF.
The Health Benefits staff responded to hundreds of telephone inquiries over the past year. The majority of inquiries concerned enrollment and benefit information with respect to the New York State Health Insurance Program (NYSHIP). The unit also referred hundreds of callers to their agency health benefits administrators, the Empire Plan insurers and administrators, GHI and Davis Vision.
Health Benefits staff provided technical assistance during negotiations for the Coxsackie Regional Medical Unit. Staff also assisted with anti-privatization activities focused on the SUNY hospitals’ readiness for Medicaid managed care and OMH Special Needs Plans.
As part of the department’s responsibilities to monitor NYSHIP, staff worked with state agencies, designated representatives of health-care plans and, as needed, staff of other state-employee unions to resolve problems and formulate proposals for improving the administration of NYSHIP and specific health-care plans.
Staff also prepared and/or reviewed health-care-plan informational materials distributed to members including articles for The Communicator, the 1998 Health Insurance Choices booklet and rate flyer, the January 1998 issue of the HMO Report, the March 1998 issue of the Empire Plan Report and the May 1998 publication, Reporting on Using Empire Plan Network Benefits.
Health Benefits staff participated in the selection process for the Empire Plan Prescription Drug Program insurer and administrator and in the selection process for the Empire Plan Mental Health and Substance Abuse Program insurer and administrator. This included reviewing the RFPs and the bidders’ proposals, and participating in the bidder interviews and on-site visits.
Staff were also involved in the process of selecting the HMOs offered through NYSHIP, including participating in the development of the 1999 Specifications for HMOs Participating in NYSHIP and evaluating the bidders’ proposals.