Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Office of the Governor

Noting that the new five-year contract avoids the need for broad layoffs while meeting tough fiscal demands, Governor Andrew M. Cuomo and CSEA President Danny Donohue today announced that members of the Civil Service Employees Association (CSEA) have ratified the five year labor contract agreed to in June by CSEA leadership and the Cuomo administration. The agreement marks a milestone accomplishment for collective bargaining and labor-management cooperation in New York State.

The contract includes provisions to keep CSEA-represented state employees on the job delivering essential services to New Yorkers. The new contract freezes base wages for the first three years, and then allows for retention payments – totaling $1,000 – as well as salary increases in each of the last two years. It also calls for a redesign of the employee health care contribution and benefit system.

The terms of the agreement will take effect immediately as the State Legislature already approved the agreement contingent on the CSEA ratification.*

Key elements of the Collective Bargaining Agreement

Base Wages: Under the five-year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.

2011-12	2012-13	2013-14	2014-15	2015-16
0%	0%	0%	2%	2%

Health Care System Redesign: The agreement includes a series of reforms in the employee health care system. If adopted by all bargaining units, these reforms would save $1.27 billion. The components of the health system redesign are:

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Patient Abuse Reforms: Both CSEA and the State agree that the system in place for investigating allegations of abuse of patients at state facilities does not adequately protect our most vulnerable population in state care. While CSEA employees are dedicated caretakers, allegations of abuse must be dealt with thoroughly. Under the new contract, the State and CSEA will take a number of steps to improve the quality of care, including creating a completely new Select Panel on Patient Abuse with A-list arbitrators and creating a table of penalties for increasingly severe acts of misconduct, along with a number of other reforms.

Review of Temporary Employees: The State and CSEA will form a joint committee to review the use of temporary employees and contractors and make recommendations to the Division of Budget and Department of Civil Service.

Layoff Protection: CSEA employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

* Civil Service Law §204-a.provides, in pertinent part, that a collective bargaining agreements between public employers and employee organizations include the following provision:

1. Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval [emphasis supplied].

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Office of the Governor

Noting that the new five-year contract avoids the need for broad layoffs while meeting tough fiscal demands, Governor Andrew M. Cuomo and CSEA President Danny Donohue today announced that members of the Civil Service Employees Association (CSEA) have ratified the five year labor contract agreed to in June by CSEA leadership and the Cuomo administration. The agreement marks a milestone accomplishment for collective bargaining and labor-management cooperation in New York State.

The contract includes provisions to keep CSEA-represented state employees on the job delivering essential services to New Yorkers. The new contract freezes base wages for the first three years, and then allows for retention payments – totaling $1,000 – as well as salary increases in each of the last two years. It also calls for a redesign of the employee health care contribution and benefit system.

The terms of the agreement will take effect immediately as the State Legislature already approved the agreement contingent on the CSEA ratification.*

Key elements of the Collective Bargaining Agreement

Base Wages: Under the five-year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.

2011-12	2012-13	2013-14	2014-15	2015-16
0%	0%	0%	2%	2%

Health Care System Redesign: The agreement includes a series of reforms in the employee health care system. If adopted by all bargaining units, these reforms would save $1.27 billion. The components of the health system redesign are:

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Patient Abuse Reforms: Both CSEA and the State agree that the system in place for investigating allegations of abuse of patients at state facilities does not adequately protect our most vulnerable population in state care. While CSEA employees are dedicated caretakers, allegations of abuse must be dealt with thoroughly. Under the new contract, the State and CSEA will take a number of steps to improve the quality of care, including creating a completely new Select Panel on Patient Abuse with A-list arbitrators and creating a table of penalties for increasingly severe acts of misconduct, along with a number of other reforms.

Review of Temporary Employees: The State and CSEA will form a joint committee to review the use of temporary employees and contractors and make recommendations to the Division of Budget and Department of Civil Service.

Layoff Protection: CSEA employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

* Civil Service Law §204-a.provides, in pertinent part, that a collective bargaining agreements between public employers and employee organizations include the following provision:

1. Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval [emphasis supplied].

Appointing authority must have the transcript of the disciplinary hearing available to it before it can make its determination

Appointing authority must have the transcript of the disciplinary hearing available to it before it can make its determination

Ernst v Saratoga County, 234 AD2d 766

In Ernst the court annulled a disciplinary determination dismissing the employee because each individual member of the appointing authority, a board, was not given a complete copy of the Section 75 hearing transcript for review prior to the board makings its determination.

The court said that the entire matter should be returned to the board for a de novo determination based on the record made during the disciplinary proceeding.

The appointing authority, after reconsidering the matter, again found Ernst guilty and, again, imposed the penalty of dismissal. The determination was sustained on appeal from the Board’s subsequent decision [Ernst v Saratoga County, 251 AD2d 866].

Unilateral transfer of unit work

Unilateral transfer of unit work

City of Rome v PERB, 283 AD2d 817

The Civil Service Employees Association, Local 1000, AFSCME, AFL-CIO Inc., City of Rome Unit [CSEA], filed an improper practice charge with the Public Employment Relations Board [PERB] alleging that Rome had impermissibly assigned unit work to nonunit employees without first bargaining with CSEA. PERB determined that Rome had violated Section 209-a(1)(d) of the Civil Service Law when it unilaterally transferred the responsibilities of its acting purchasing agent Marilyn McLiesh to others.

Rome was ordered to immediately transfer certain duties previously performed by McLiesh to the unit represented by CSEA, offer McLiesh reinstatement to her former position and make McLiesh whole for lost wages, benefits and conditions of employment from the effective date of her separation from service to the effective date of the offer of reinstatement.

The Appellate Division set out the following critical points in reviewing Rome's petition to vacate PERB's determination:

1. From October 1986 until December 1995, McLiesh served as Rome's deputy assistant purchasing agent. In December 1995, McLiesh was appointed acting purchasing agent after the Purchasing Agent resigned.

2. In January 1998, Rome abolished its purchasing agent position and transferred some of the work previously performed by McLiesh to employees in the Oneida County Purchasing Department. The tasks not transferred to the County were assigned to Rome's Treasurer's office. It then terminated McLiesh.

Rome challenged PERB's directive providing for McLiesh's reinstatement and the award of back pay as violative of Article V, Section 6 of the State Constitution.

Supreme Court ruled that McLiesh's continuation in service as an acting purchasing agent beyond the three-month period for temporary appointments permitted by Civil Service Law Section 64(1) violated Article V, Section 6 and thus PERB exceeded its authority by directing McLiesh's reinstatement. The Court annulled that part of PERB's decision that directed Rome to reinstate McLiesh with back pay and benefits. CSEA and PERB appealed.

The Appellate Division commenced its analysis of the case by noting that the transfer of McLiesh's responsibilities to nonunit workers did not, of itself, violate any law. Rather, it was Rome's failure to negotiate the transfer of such duties with PERB that violated Civil Service Law Section 209-a(1)(d).

The court said that its prior decision in Village of Scotia v PERB, 241 AD2d 29, was relevant in this case. In Scotia the Appellate Division held that although an individual “had been impermissibly demoted from police sergeant to patrolman,” PERB could not direct that he be restored to his prior position because he was not on a current eligibility list for appointment to police sergeant.

Here, said the court, the record showed that although McLiesh had been on an eligible list for the position of purchasing agent, that list expired on April 25, 1987 and would, in any event, have expired by operation of law at the end of four years. The Appellate Division's conclusion:

Since McLiesh took no subsequent test for purchasing agent and there was on no eligible list for the title, “it necessarily follows that, at the expiration of three months following McLiesh's appointment as 'acting' purchasing agent' her employment in that position violated the requirement of Article V, Section 6.”

In the court's view, “PERB's effort at justifying its remedial order by pointing out that it did not restore McLiesh to the position of purchasing agent but, rather, to her prior position of “acting” purchasing agent, fails to recognize that [her retention in] the latter position was itself violative of NY Constitution, Article V, Section 6.” Accordingly, PERB's directing Rome to reinstate McLiesh with back salary was not viewed as lawful.

It should be noted that McLiesh died while this appeal was pending. The court said that her “unfortunate death ... did not render the appeal moot. Notably, an award of back pay, which is primarily at issue here, would inure to the benefit of McLiesh's estate.”

Special Errand exception - Workers' Compensation eligibility for injury suffered going to or from work

Special Errand exception - Workers' Compensation eligibility for injury suffered going to or from work

Dziedzic v Orchard Park CSD, 283 AD2d 878

A kindergarten teacher employed by the Orchard Park Central School District died as the result of an automobile accident that occurred while she was traveling to school.

Just prior to the accident, the teacher had stopped at a store to purchase items to be used by her students in a classroom project, as she had done many times before during her long tenure with the school district. The store was along Dziedzic's regular route to school and the accident happened after she had exited the store's parking lot and was on her way to her school.

The Workers' Compensation Board ruled that accident arose out of and in the course of the teacher's employment and said that the payment of workers' compensation death benefits was appropriate under the circumstances. The district and its workers' compensation carrier had controverted the claim* and subsequently appealed the Board's decision.

The Appellate Division pointed out that the general rule in such situations is that injuries sustained during travel to and from work are not compensable under the Workers' Compensation Law. However, the court quickly noted, this general rule is subject to a number of exceptions, including an exception for an injury or death that occurs in the course of an individual performing a “special errand.”

The “special errand” exception is triggered when it is determined that the employee's travel serves a purpose of the employer. Injuries sustained by workers in the course of such travel may be compensable. There is a “two-prong” test that is applied in making such a determination. The special errand exception is applicable only if it is determined that the employer both:

1. Encouraged the errand; and

2. Obtained a benefit from the employee's performance of the errand.

The Appellate Division said that there was “evidence in the record that Dziedzic and her fellow kindergarten teachers at the school employed a hands-on, developmental approach to teaching, with the students involved in activities which included projects that required the purchase of materials that were not available in the school.” The district, said the court, was aware of the activities and recognized them as extra efforts or enhancements in the teachers' annual evaluations.

Further, said the court, the record indicated that the district knew of this practice by their teachers which involved their routinely purchasing classroom project materials outside the school to facilitate their hands-on approach to teaching and the district “neither discouraged nor placed any limitations on the purchases which, depending upon the dollar amount, were subject either to reimbursement or the use of a purchase order.”

The Appellate Division sustained the Workers' Compensation Appeals Board's conclusion that Dziedzic was engaged in a “special errand” when she was involved in this fatal accident as there was substantial evidence demonstrating that the employer not only benefited from the teachers purchases of materials outside the school, but also encouraged those purchases.

In Dziedzic the employee was on her way to work when she was involved in the accident. Does the same rule apply in cases where the individual is injured after he or she leaves work?

Neacosia v NY Power Authority, 85 NY2d 471, decided by the Court of Appeal, involved such a variation of the facts -- the employee was injured after he left work and while he was driving to his home.

Michael Neacosia, a New York Power Authority security officer, was involved in an automobile accident after he stopped on his way home from work to leave his work uniform at a cleaning shop. The basic question: Was Neacosia acting within the scope of his employment and thus was eligible for workers' compensation benefits when he suffered his injuries?

According to the decision, Neacosia was required to keep his “employer provided uniforms” clean and presentable. To this end, the Authority had made arrangements with a number of cleaning establishments to clean these uniforms and to bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and submit bills for the cost of the cleaning to the Authority.

The critical elements in this case:

1. Neacosia completed his shift, left work, and in the course of driving home, stopped to deliver his uniforms to one of the cleaners recommended by the Authority. After leaving his uniform at the cleaning establishment, Neacosia continued to head home along his usual route.

2. After leaving the cleaners, Neacosia was involved in an automobile accident in which he sustained severe injuries.

The Authority controverted his application for workers' compensation benefits.

Applying the special exceptions rule, the Court of Appeals sustained the Workers' Compensation Board's ruling that Neacosia was engaged in a “special errand” at the time he was injured and thus eligible for Workers' Compensation benefits.

* In the event the employer and, or, the employer’s insurer challenges a Workers’ Compensation Award, it has “controverted the claim.”