The PEF Office of General Counsel provides a variety of legal services to PEF and to individual PEF members. These services include providing representation to the union or individual members in civil suits in the state and federal courts, in administrative proceedings before various agencies, and in arbitrations under all of the collective bargaining agreements negotiated by PEF. We also provide legal opinions to the officers and other PEF departments on a wide range of topics.
We are currently representing PEF or individual PEF members in approximately 310 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 New York State United Teachers (NYSUT) attorneys, through PEF’s affiliation with the American Federation of Teachers (AFT).
During the past year, this Office responded to approximately 65 formal requests for legal opinions and opened 136 new litigation files.
There have been additional developments in our Fair Labor Standard Act ("FLSA") litigation. As we reported last year, the United States Supreme Court’s decision in Alden v. Maine held that Maine State employees could not sue the state in state court for violations of the FLSA. The Court ruled that under the principles of sovereign immunity, Congress did not have the authority to subject non-consenting states to private lawsuits in their own courts. That case came on the heels of a 1996 U.S. Supreme Court decision which had the effect of barring FLSA lawsuits by individuals against the state in federal court.
PEF is currently litigating two cases under the FLSA which have been severely impacted by these Supreme Court decisions. In the Alston v. State of New York case, we brought an action on behalf of approximately 100 Parole Officers seeking back pay for overtime compensation for the period September 1989 to November 1990. Unfortunately, in April the Court of Claims granted the state’s motion to dismiss this entire case on the basis that we had not timely filed our claim. We have appealed that decision and are asking the Appellate Division to apply another precedent which stands for a more expansive interpretation of the time frame for filing claims in the Court of Claims. The Court of Appeals will likely address this issue.
In our other FLSA case, Lepkowski v. State of New York, we are in the discovery phase of litigation. We expect the Attorney General to make the same motion to dismiss in Lepkowski as in Alston. This case is distinguished from Alston because even if the Court adopts the same position, this case will still proceed because, unlike Alston, we have a continuing FLSA violation.
We received excellent decisions in two important out-of title work cases. In the first, we argued that a Senior Correction Counselor at the Elmira Correctional Facility was assigned out-of-title work when he was required to act as a Hearing Officer to conduct Tier III hearings on a routine and regular basis. Those hearings are internal facility disciplinary hearings for inmates. GOER and the Division of Classification and Compensation ruled that this assignment was not out-of-title work based on a 1986 grievance decision, and the fact that numerous PEF members have been required to conduct Tier III hearings for many years.
The Court rejected the state’s position on the ground that the Senior Correction Counselor was not assigned to conduct Tier III hearings on an occasional basis, as was the case in the 1986 grievances, but was instead assigned on a routine, long-term basis. The Court also rejected DOCS’ reliance on an administrative regulation which permits DOCS Superintendents to designate employees other than uniformed supervisors to conduct disciplinary hearings. The state has appealed this decision to the Appellate Division.
In another out-of-title case, the Appellate Division, Third Department reversed the lower court and determined that Recreation Workers, Recreation Therapists and Senior Recreation Therapists at the Pilgrim Psychiatric Center were engaged in out-of-title work when they were required to perform the higher-grade duties of a Treatment Team Leader. These members were assigned to complete treatment plan worksheets which are, in essence, draft treatment plans. The Appellate Division reiterated the principle that an employee need not be assigned the full range of duties of the higher salary grade position to be performing out-of-title work, and that the proper review is whether the duties are appropriate to the employee’s title.
Since last year’s report, we received an unfavorable decision from the Appellate Division, Third Department in a case where we challenged the placement of 35 positions in the Banking Department in the non-competitive jurisdictional class. The Court upheld the Albany County Supreme Court’s decision that the Civil Service Commission had set forth a rational basis for the placement of the 35 Risk Management/Capital Markets positions in the non-competitive classification. The Court rejected our arguments that the duties of these positions could be tested for thorough competitive examinations. Thereafter, the Court of Appeals denied our motion to appeal and the case is over.
In another case, the Appellate Division, Third Department affirmed the Albany County Supreme Court’s decision granting our request for a preliminary injunction restraining implementation of the City of Albany parking permit ordinance. In upholding the preliminary injunction, the Appellate Division ruled that Albany’s parking permit plan discriminates against non-residents and that the Legislature has not conferred upon Albany the authority to discriminate in such a manner.
We received an excellent decision from a Public Employment Relations Board (PERB) administrative law judge (ALJ) in the improper practice case we litigated on behalf of Michael Darcy. Mr. Darcy’s employer, the State Education Department (SED), terminated his e-mail access. He was using e-mail to communicate with other PS&T Unit members concerning contract negotiations and pending legislation which could result in layoffs of union members. The PERB ALJ determined that Mr. Darcy was engaged in protected activity when he communicated via SED e-mail with other union members regarding terms and conditions of employment. He further found that SED knew of this protected activity and discontinued Mr. Darcy’s e-mail access solely because of it. Given that SED employees are allowed to use the e-mail for unofficial functions, the ALJ found that SED had discriminated against Mr. Darcy solely based on his union activities, a violation of the Taylor Law. He ordered SED to restore Mr. Darcy’s e-mail access and to make him whole. The state is appealing this decision to the PERB Board.
PERB has upheld an ALJ’s decision dismissing PEF’s improper practice charge concerning Governor Pataki’s Executive Order No. 39. We argued that this order, which required employees of all state Executive branch agencies to report corruption, fraud, criminal activity, conflict of interest or abuse by other state employees or officers to the State Inspector General, unilaterally imposed a new work rule changing the terms and conditions of employment for PS&T Unit employees. Prior to the issuance of Executive Order No. 39, there was no general obligation for state employees to report such activities of other employees to the State Inspector General.
The ALJ ruled that PEF failed to sufficiently prove that such reporting requirements did not exist prior to Executive Order No. 39. The Board has affirmed that decision, and we have filed an Article 78 proceeding challenging PERB’s decision.
The Appellate Division, Third Department upheld PERB’s decision dismissing an improper practice charge which we filed based on a unilateral change in the performance standards for Nurse IIs made by the Director of Classification and Compensation. We alleged that the state unilaterally changed terms and conditions of employment by altering the job descriptions of Nurse IIs so that they could be made to perform Nurse Administrator duties on the evening shift and in certain small facilities on any shift. We further alleged that the Director of Classification and Compensation had colluded with the Office of Mental Health (OMH) in changing the standards to avoid several favorable court decisions on out-of-title work PEF had obtained in this area.
After PERB dismissed our exceptions to an adverse decision from PERB’s Assistant Director, we sought judicial review in Supreme Court, Albany County. The Third Department has upheld PERB’s determination that any matter involving Civil Service classification or the classification standards was beyond the scope of PERB’s powers to review. The Court and PERB thus rejected our contention that a collusive change in classification standards specifically designed to unilaterally alter basic terms and conditions of employment such as salary, hours or workload was the proper subject of an improper practice proceeding. We have filed a motion seeking leave to appeal this decision to the Court of Appeals.
Finally, we filed a major Article 78 proceeding challenging Roswell Park’s placement of approximately 331 PEF-represented positions in 12 titles in the non-competitive jurisdictional class. Prior to Roswell Park becoming a public benefit corporation, all those positions were in the competitive class. We expect a decision in the near future.