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. The Office also provides legal opinions to the officers and other departments within PEF on a wide range of subjects.
We are currently representing PEF or individual PEF members in approximately 320 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.
During the past year, this Office responded to approximately 70 formal requests for legal opinions and opened 152 new litigation files.
Our Fair Labor Standards Act (“FLSA“) litigation continues to wind its way through the judicial system. PEF is currently litigating two cases under the FLSA which have been greatly impacted by two United States Supreme Court decisions. Those decisions had the effect of barring FLSA lawsuits by individuals against the state in federal court and precluding state employees from suing non-consenting states in state court for FLSA violations. While New York law permits actions against the state in the State Court of Claims, the legal parameters of such actions and the time frame for pursuing FLSA remedies against New York in the Court of Claims have become the new flashpoints of our litigation.
In the Alston v. State of New York case, we brought an action on behalf of approximately 100 Parole Officers seeking back pay for from September 1989 to November 1990 based on the state’s failure to pay them overtime compensation. In April 2000, the Court of Claims granted the state’s motion to dismiss this case on the basis that the claim was not timely filed. In March 2001, the Appellate Division, Third Department affirmed the Court of Claims’ decision and held that Section 10 of the Court of Claims Act, which requires that a notice of claim be filed within six months of the claim, constitutes an integral part of the state’s waiver of sovereign immunity and is a condition which must precede the pursuit of a FLSA claim in the Court of Claims. The Court held that failure to file a claim within the six-month limitation period is a non-waivable jurisdictional defect that deprives the Court of Claims of subject matter jurisdiction.
The Court reached this harsh result despite the fact that the FLSA has a two-year statute of limitations and despite the fact that when we filed this lawsuit in federal court in 1991, it was timely filed. In essence, the Appellate Division retroactively applied a statute of limitations to dismiss this claim.
The New York State Court of Appeals has, however, granted our motion for permission to appeal the Alston decision. Oral argument is scheduled for November 2001 and we expect a decision by early 2002.
Our other major FLSA case, Lepkowski v. State of New York, should still proceed regardless of the Court of Appeals’ decision in Alston because we have asserted a continuing FLSA violation in that case. In June 2001, the state moved to dismiss Lepkowski and also moved to limit the back pay based on the same reasoning as in Alston. The amount of back pay available to the claimants in the Lepkowski case will be affected by the outcome in Alston.
In an important Public Employee Safety and Health Act (“PESH Act”) case, we received an excellent decision from the Albany County Supreme Court in a case in which PEF challenged the Industrial Board of Appeals’ affirmance of the New York State Department of Labor’s refusal to turn over complete Occupational Injury Logs (“DOSH 900“) to PEF. DOL refused to turn over employees’ names, case numbers and other relevant information in the DOSH 900 logs to the PEF Health and Safety Chair at DOL.
The Court ruled that all of the information contained in the DOSH 900 logs must be turned over to union representatives for inspection and copying. The Court rejected DOL’s argument that access to those logs would constitute an invasion of privacy. This ruling is critical, since DOL’s actions affect how every state agency will comply with the PESH Act and its’ requirement that public employees have the right to complete access to Occupational Injury Logs. The state is appealing this decision.
In an important out-of-title work case, the Appellate Division, Third Department affirmed the lower court’s decision that DOCS violated the PEF/state contract and state law when it assigned DOCS Counselors to conduct Tier Hearings. These hearings are internal, facility disciplinary hearings for inmates. The Appellate Division agreed that the primary function of a Senior Correction Counselor is to counsel and provide prisoners with those services necessary to facilitate their adjustment to prison life. The Court ruled that presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making findings of fact and conclusions of law and imposing punishment simply is not reasonably related to, or viewed as a logical extension of, the duties of a Senior Correction Counselor. This decision reverses a longstanding practice in which DOCS forced Senior Correction Counselors and other civilian employees to conduct inmate disciplinary hearings.
Last year we reported that 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 of those positions were in the competitive class. The Erie County Supreme Court first issued a favorable interim decision rejecting RPCIC’s claim that PEF’s challenge to four of the titles was untimely. In a second interim decision, the Court ordered a trial on the merits of the case, i.e., whether RPCIC properly classified those positions as non-competitive. Two trial dates have been held and two more are scheduled. We expect a final decision on the merits in the near future.
In another update from last year’s report, PERB has reversed the Assistant Director of Public Employment Practices and Representation’s decision which found the State Education Department violated the Taylor Law when it discontinued Michael Darcy’s e-mail access. PERB disagreed with the Assistant Director’s finding that SED’s motivation for discontinuing Mr. Darcy’s e-mail access was to interfere with his union activities. The Board stated that its reading of the hearing record led it to conclude that SED’s basis for terminating Mr. Darcy’s e-mail access was solely premised on legitimate managerial concerns and was not motivated by anti-union animus. We have appealed this decision to the Appellate Division, Third Department.
The Court of Appeals has denied our motion to appeal the Appellate Division’s decision upholding PERB’s dismissal of 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. The improper practice charge alleged that changes by Classification and Compensation in the classification standards for Nurse IIs which permitted them to be assigned Nurse Administrator I duties on the evening shifts and in certain small facilities, constituted a unilateral change in a mandatory subject of negotiation. The Court and PERB 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. Because the Court of Appeals denied our motion to appeal, the case is over.
There has been a favorable decision from the Erie County Supreme Court in our case which challenged Buffalo Psychiatric Center’s transfer of a Pharmacist on a “temporary”basis to the Western New York Children’s Psychiatric Center. The Court agreed with our contention that this “temporary”assignment constituted a Section 70(1) transfer under Civil Service Law, which is impermissible without the employee’s written consent and the approval of the Department of Civil Service. The Court ordered Buffalo Psychiatric Center to cease and desist from involuntarily transferring this member to another appointing authority. The state has appealed this decision.
Finally, this Office filed an Article 78 proceeding against the Department of Civil Service and the Department of Health challenging the use of zone scoring for the Health Program Administrator I and II examination. Zone scoring of this examination resulted in 74 candidates receiving a rating of 100. We contend that by utilizing the zone scoring methodology on this examination, the state improperly expanded the group of candidates eligible for appointment in violation of the “merit and fitness”requirements of the New York Constitution. We expect a decision in the near future.