The PEF Office of General Counsel provides a variety of legal services to PEF and to individual PEF members. These services include litigation in the state and federal courts, defending individual union members in disciplinary arbitrations, and responding to legal inquiries from union officers and staff on a wide range of subjects.
There have been a number of personnel changes in this office since the last convention report. William Seamon was appointed general counsel and Lisa King was appointed deputy general counsel. Debra Greenberg and Dionne Wheatley were hired as associate counsel.
We currently represent PEF or individual PEF members in approximately 330 judicial, administrative and arbitration cases. While the majority of these cases are handled in-house, approximately 15 disciplinary termination cases are handled each year by NYSUT attorneys, through PEF’s affiliation with AFT. Outside counsel has been retained in 14 disciplinary cases.
During the past year, this department responded to approximately 90 formal requests for legal opinions and opened 152 new litigation files.
The Office of General Counsel’s primary mandate is to provide representation to the union or individual members in civil suits in the state and federal courts, administrative proceedings before various agencies and arbitrations under all of the collective-bargaining agreements negotiated by PEF. In addition, this department provides support to PEF’s contract teams in preparation for and during negotiations.
We also provide legal opinions on a variety of employment-related issues involving individual members, and regularly provide legal advice and assistance to the officers and other departments within PEF.
Major Accomplishments During The Past Year
In an important case, we received a favorable decision from the Appellate Division, Third Department regarding the extent to which GOER could reconsider a Step 3 decision under the out-of-title provisions of Article 17 of the PEF/State agreement. In two cases which were consolidated by the court for decision, GOER issued Step 3 decisions sustaining out-of-title grievances on behalf of three correction counselors and four nurses in Correctional Services. Subsequently, Correctional Services prevailed on GOER to reinvestigate and reconsider its decisions, based on "new information." Upon such reconsideration, GOER reversed its previous determinations and denied the grievances.
We commenced litigation seeking to compel GOER to adhere to its original, favorable Step 3 decisions. The Supreme Court, Albany County held that the state respondents had no contractual right to appeal an adverse Step 3 decision, and there was no public policy prohibiting such a contractual procedure.
The Appellate Division, Third Department affirmed the lower court’s decision and held that under the contractual scheme of Article 17, the state waived its right to reconsider Step 3 decisions. The Third Department further held that there was no demonstration of a public policy requiring reconsideration to correct allegedly erroneous determinations in the face of a contractual procedure which did not allow such appeals. The court affirmed the lower court’s decision directing GOER to reinstate the original Step 3 decisions.
In another Article 17 out-of-title case, we received a favorable decision from the Albany County Supreme Court annulling GOER’s decision in a case involving five labor standards investigators (LSIs) from the Department of Labor’s Buffalo office. These members had been regularly assigned on a rotating basis to perform the duties of a senior LSI, a supervisory position, in the senior LSI’s absence. GOER denied the grievance on the basis that that LSIs had not performed all of the supervisory duties of the senior LSI position, and they were only assigned the duties for one week out of every five weeks.
The court rejected these arguments and agreed with our position that the work was indeed out-of-title, regardless of whether it was performed by one person or five different people on a rotating basis. The court ordered the grievance remanded to GOER for an award of back pay for the difference in salary between the positions.
Our litigation in the injunction cases against the Office of Mental Health continued again this year. As noted in last year’s report, these injunctions prevented significant service reductions and layoffs scheduled for July 31, 1996 at Buffalo Psychiatric Center (Erie County Supreme Court), Kingsboro Psychiatric Center (Kings County Supreme Court), Pilgrim Psychiatric Center (Suffolk County Supreme Court), and Manhattan and Creedmoor Psychiatric Centers (New York County Supreme Court). The focus of these cases since 1997 has been primarily in the appellate courts.
In November 1997, the Appellate Division, First Department, unanimously upheld the injunctions we obtained which prohibited significant service reductions at the Manhattan and Creedmoor Psychiatric Centers. In February 1998, the Appellate Division, Second Department, affirmed the injunctions we obtained which prohibited significant service reductions at the Kingsboro and Pilgrim Psychiatric Centers. Both the First and Second Departments held that Mental Hygiene Law §7.17(e) permits injunctive relief when OMH fails to comply with the 12-month-notice provisions of that law. Each court agreed with our argument that if the Mental Hygiene Law was read to preclude injunctive relief, a court would be deprived of any enforcement mechanism with respect to those provisions of the statute that require the commissioner of OMH to take certain actions prior to engaging in significant service reductions.
The state’s motions to appeal both of these decisions to the Court of Appeals were denied.
Our cases under the Fair Labor Standards Act ("FLSA") continue to go forward. We have three major cases now pending in the New York State Court of Claims: Lepkowski v. State of New York (formerly entitled Close, et al. v. State of New York), Abelson, et al. v. New York State Department of Agriculture and Markets, and Alston v. State of New York. In Lepkowski, we allege that approximately 400 PEF members who hold civil-service titles grade 23 and higher were overtime eligible because they were not paid on a salary basis. Likewise, in Abelson we make the same claim on behalf of approximately 390 members. The third case, Alston, covers approximately 100 parole officers. The state has filed answers in all cases, and we have made discovery demands in all cases.
As discussed in last year’s convention report, these cases were re-filed in state court after the United States Supreme Court issued its decision in the case of Seminole Tribe of Florida v. Florida, which had the effect of depriving federal courts of jurisdiction for FLSA claims against the state under the Eleventh Amendment of the United States Constitution.
We are planning to seek consolidation of the Lepkowski and Abelson cases because the legal issues in those cases are identical, and we have approximately 150 overlapping plaintiffs. This will allow us to use our resources more efficiently and will avoid duplicative litigation.
We recently filed an Article 78 proceeding challenging the Civil Service Commission’s determination that 35 risk management/capital markets positions in the Banking Department should be placed in the non-competitive jurisdictional class. We believe that the skills required for these positions can be tested for on a competitive basis, and that the positions should have been placed in the competitive class. This case will be argued this fall.
To update last year’s report concerning the job-abandonment provisions of Article 35 of the PEF/State agreement, we initiated litigation on behalf of two members asserting that the application of Article 35 to these specific members was improper because it permitted these permanent employees to be terminated in the absence of constitutionally-required due-process procedures.
We settled this case on favorable terms for both members. One member was reinstated to his former position with $60,000 in back pay. The other member received over $30,000 in back pay, and he agreed to retire. The state also agreed to pay us $6,000 in attorneys’ fees. Subsequently, we initiated litigation on behalf of two more former members whose terminations, in our opinion, also did not meet due-process requirements.
Unfortunately, in another matter, the Court of Appeals denied our motion for permission to appeal the Appellate Division, Third Department’s decision dismissing our lawsuit challenging the abolition of the State Energy Office (SEO). As you may recall, the Third Department declared that PEF’s cause of action was founded upon the erroneous legal premise that the budgetary action which brought about the termination of SEO’s civil-service employees was the equivalent of the complete abolition of that office. The Appellate Division held that what occurred was not an abolition of functions but a layoff of all employees at SEO. It also ruled that SEO’s transfers of functions were not subject to the provisions of Civil Service Law §70(2). We exhausted our appeals in this case, and there are no other legal challenges which can be initiated on behalf of PEF members who were employed at SEO.
We received an unfavorable arbitration award on our challenge to the Racing and Wagering Board’s 1996 decision to unilaterally reduce per diem salaries at the board by 25 percent. The arbitrator essentially found that as seasonal, exempt-class employees, these unit members did not enjoy any salary protection and, therefore, the board was not prohibited from implementing the 25 percent reductions in per diem salaries. The arbitrator rejected our argument that to sanction such an action by the board would lead to a nullification of the negotiated increases and lump-sum payments to which these unit members were entitled.
Although there is no basis for which to seek vacatur of the arbitrator’s award, we are pursuing another legal challenge to try and remedy this situation. In 1996, we filed an improper-practice charge with PERB alleging that the board’s unilateral decision to reduce per diem salaries violated the Taylor Law. Pursuant to its regular policy, PERB deferred hearing PEF’s charge until after the arbitrator issued his award. Now that an unfavorable award has issued, PERB agreed to reopen the improper-practice charge case over the state’s objection. We are attempting to negotiate a resolution of this charge.
In another matter, PERB affirmed the assistant director’s decision denying our improper-practice charge that the state violated the Taylor Law when it changed the classification standard for the nurse II (psychiatric) position in OMH. The classification standard was changed to enable OMH to avoid paying compensation to nurse IIs for working out-of-title in nurse administrator I duties in certain circumstances and to circumvent favorable court decisions on this subject. PERB ruled that Civil Service classification standards are non-mandatory subjects of negotiation, regardless of the employer’s motivation for the reclassification. We are challenging PERB’s decision in court.
Finally, since last year’s convention report, this office represented more than 125 individual PEF members facing termination disciplinary charges.