PEF Statement on Court of Appeals Decision on No-Layoff Clause

On November 17, 2011, the New York Court of Appeals ruled that the termination of six firefighters for budgetary reasons did not fall within the no-layoff clause of the Collective Bargaining Agreement (“CBA”) between the Village of Johnson City and the Johnson City Professional Firefighters, and therefore the terminations were not arbitrable under the CBA.  In a sharply divided 4-3 decision, the Court of Appeals held that given the particular contract in this case, the Village was not required to arbitrate the meaning of a “no-layoff clause” in the CBA.

The full no-layoff clause in the Johnson City Firefighters CBA states:  “A. The Village shall not lay-off any member of the bargaining unit during the term of this contract. B. The Village shall not be required to ‘back fill’ hire additional members to meet staffing level of expired agreement.”

Although comments have been made in the media which would lead many to conclude that this decision broke new ground, the Court of Appeals was actually relying on longstanding precedent that holds “a purported job security provision does not violate public policy, and therefore is valid and enforceable, only if the provision is ‘explicit,’ the CBA extends for a ‘reasonable period of time,’ and the CBA ‘was not negotiated in a period of legislatively declared financial emergency between parties of unequal bargaining power.’ ”  The Court also reiterated that the most important thing about the language of a job security clause was that it was “explicit in its protection of the [workers] from abolition of other positions due to budgetary stringencies.”  The Court ultimately addressed whether the “no-layoff” clause in the Johnson City Firefighters contract was “explicit, unambiguous and comprehensive.”  On that issue, the Court ruled that the clause did not “explicitly protect the firefighters from the abolition of their positions due to economic and budgetary stringencies” and that the term “layoff” is “undefined in the CBA and open to different and reasonable interpretations.”

In light of the Firefighters’ decision, PEF has been asked whether the recently ratified PEF-State of New York CBA containing lay-off protection could be vulnerable to the same type of interpretation.  PEF adamantly believes that it would not be vulnerable to such an interpretation.

First, there is absolutely no indication the State will not live up to the Workforce Reduction Limitation provision it bargained and negotiated with PEF.  At the time of negotiations, the State was fully aware of the financial circumstances facing the State the rest of this fiscal year and the next.  Clearly, the likelihood of revenue shortfalls facing the State was not unanticipated, yet the State went ahead and signed the contract and rescinded the 3,500 scheduled layoffs.

Second, the job security clause PEF negotiated is explicit in its protection of PEF members from “layoffs resulting from the facts and circumstances that gave rise to the present need for $450 million in workforce savings.”  As the job security clause in the PEF-State Contract is explicit, unambiguous and comprehensive, should the need ever arise, PEF firmly believes that the job security provision in the PEF-State CBA would be subject to arbitration.

PEF continues talks with state, members rally

PEF members, many of them targeted by the governor to be laid off later this month, held a rally at PEF Headquarters Tuesday morning.

PEF President Ken Brynien and Vice President Tom Comanzo addressed the members and answered questions from the press. The PEF leaders explained the Executive Board meeting scheduled for Tuesday afternoon had to be postponed as there was not yet a contract agreement with the state.

Negotiations with the state are continuing with the goal of saving the jobs of the 3496 PEF members targeted for layoff by reaching an agreement with the state PEF members will ratify.

PEF Members we need you to call the Governor!

Governor Cuomo is continuing his plans to lay off PEF members despite ongoing contract negotiations.

Call Governor Cuomo and tell him that you are a PEF member and that you are appalled at the lack of respect shown for you and the vital services you provide.

We all understand the fiscal situation the state is in and we are willing to do our part, we are willing to sacrifice, but we will not be sacrificed.

Call 1-877-255-9417

Let Governor Cuomo know this is no way to treat his employees.

Information for Members Affected by Layoffs

PEF is providing advice and information for members being contacted by their agency management regarding the ongoing layoffs.  This includes important information about protecting your rights and the appropriate people to contact in PEF to answer all layoff related questions.

Please click here for contact and other layoff information.

Important Contract Negotiations Bulletin For PEF Members

In the adopted State Budget, the governor identified the need for $450 million in “Labor Management Partnership Savings” or 9,800 employee layoffs.  The State also insists that the $450 million in savings were to be recurring from year to year.  This amounts to annual give-backs of $2,000-$3,000 for every public employee in the Executive Branch of state government.

With the fiscal need of the state identified in the adopted budget, PEF began formal negotiations on a successor agreement to the 2007-11 contract on March 16th.

Below is the only proposal PEF has received from the state. This proposal goes far beyond what the governor asked for in his budget and could require a PEF member to give up as much as $10,000 in salary and benefits every year of the contract. That’s five times the amount of savings identified in the enacted budget.

Additionally, the state’s negotiators made it clear that accepting these concessions would not ensure that PEF members would not still be laid off.

Formal negotiations began March 16th, less than three months ago, and aside from the state’s initial proposal there has been no counter offer from the state despite two proposals from PEF.

State’s Contract Proposals:

Salary and Wages

• Six Year Contract.
• No Across the Board Raises for the Next Four Years, Raises of 1 and 2 percent payable October 1st in years 5 and 6.
• Elimination of Longevity Payments for All Six Years of the Agreement.
• Elimination of Increments for All Six Years of the Agreement.
• Elimination of the Use of Charged Accruals in Calculation of Eligibility for Overtime.

Health Insurance

• Elimination of Sick Leave Offset For Retiree Health Insurance For All Current and Prospective Retirees.
• Cost Shift in Insurance Premium
  • From 10 Percent to 20 Percent for Individual Coverage, an increase of $709 based on current rates for the Empire plan.
  • From 25 Percent to 35 Percent for Family (dependent) Coverage, an increase of $1,622 based on current rates for the Empire plan.

Empire Plan Changes Include:

• Increased Co-pays by the end of the agreement.
  • New Inpatient Admission Copay - increase in co-pay from -0- to $325.
  • Outpatient Hospital Radiology/Labs - increase in co-pay from $40 to $260
  • Outpatient Hospital Physical Therapy - increase in co-pay from $20 to $260.
  • Outpatient Hospital Surgery - increase in co-pay from $60 to $650.
  • Primary Care Provider Co-pay - increase from $20 to $40.
  • New Split Co-Pay for Specialists with an increase from $20 to $60.

Prescription Drugs (30 day supply at retail)

• Generic Drug – increase in co-pay from $5 to $10.
• Preferred Brand-Name Drug - increase in co-pay from $15 to $25.
• Non-Preferred Brand-Name Drug - Increase in co-pay from $40 to $50.
• Co-Pays will automatically increase in 2013, 2014 and 2015 as follows:
  • $1.00 Generic
  • $2.50 Preferred-Brand Name Drug
  • $5.00 Non-Preferred Brand Name Drug

Other

• New Smoking Surcharge of $25 per month for member, spouse or domestic partner.

PEF’s Contract Proposal Counter Offer

We as PEF members are willing to share the sacrifice and endure some fiscal hardship to preserve the jobs of our working colleagues but cannot accede to the State’s egregious demands.

In the context of a fully negotiated four year agreement, PEF has offered the state’s negotiators a proposal that includes 2011-12 gap closing concessions that would meet the demands for our portion of the $450 million in “Labor/Management Partnership Savings” included in the 2011-12 Budget and provide the cash savings necessary for the state to avoid the need for layoffs.

These concessions include the following:

• No Base Wage increase in 2011-12;
• Four Days of Furlough in 2011-12; and 
• Four Days of Deferred Pay in 2011-12.
• Consideration of possible changes to co-pay levels for medical services and prescription drugs.
• Increase the vesting period for current employees to establish eligibility for retiree health insurance from 10 to 15 years.
• Accept portion of state’s proposal to exclude charged sick leave from calculation of eligibility for overtime.

These concessions provide cash savings to the state which cover PEF’s share of the $450 million in Labor Management Partnership Savings budgeted for 2011-12.  In addition, we identified administrative changes to the Health Insurance Plan that would save the State hundreds of millions of dollars without reducing benefits, which meets the governor’s need for the recurring savings assumed in the State Financial Plan.

In exchange for these concessions, PEF also proposed the following enhancements during the remainder of the proposed 4 year agreement:

• Salary increases in an amount equal to the change in CPI-U or other agreed upon measure of inflation for previous 12 months for the second, third and fourth years of the agreement
• Expansion of overtime eligibility
• Standardization of benefits for employees injured at work
• Expanded access to telecommuting and alternate work schedules
• Strengthen contractual seniority rights to bid schedule, work location, overtime, etc.    
• Require Cost Benefit Analysis for any proposed contacting out of PS&T Unit services
• Limit time that employees spend on unpaid suspension prior to decision on disciplinary charges

PEF has tried to be reasonable and do our part to address the state’s fiscal needs while protecting our members from lasting financial harm.  We understand that this proposal is a real hardship for our members.  This proposal satisfies the budgetary needs of the governor identified in the adopted budget for 2011-12.

Over the next few days PEF will be contacting our members to participate in activities including a tele-town hall meeting this Sunday June 12th as well as possible rallies and membership activities over the next several weeks.

Your involvement as a PEF member will ultimately determine our success as a union and our ability to protect our jobs and negotiate a fair contract.

Please continue to check the website for the most recent information as well as sign up with your most recent contact information on the opening web page.

Click here for PDF of Contract Update