Governor Cuomo announces five year labor agreement with the Civil Service Employees Association

Governor Cuomo announces five year labor agreement with the Civil Service Employees Association

Source: Executive Office Press Office

On June 22, 2011 Governor Andrew M. Cuomo announced that his administration has reached a five-year labor agreement with the Civil Service Employees Association (CSEA). CSEA represents 66,000 New York State employees and is one of the largest public employee unions in the state. The agreement, which must be ratified by members of CSEA in the several State negotiating units represented by CSEA, would provide State employees represented by CSEA with protection from broad layoffs.

”The agreement includes a freeze on base wages for 3 years and a redesign of the employee health care contribution and benefit system, saving $73 million this fiscal year and $93 million next fiscal year. If adopted by the state's other collective bargaining units, the agreement will reduce workforce costs by $1.63 billion over the course of the agreement, including $1.27 billion of savings in healthcare costs, and would achieve sufficient savings to avoid the need for broad layoffs arising from the gap in the state operations budget. Overall, the five-year agreement if adopted statewide would be $3.8 billion less expensive to the state than the previous four-year agreement reached in 2007.”

Key elements reported:

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%

Expected Savings: The 2011 wage agreement is $2.5 billion less costly to the state than the 2007 agreement, if adopted through the state workforce.

Health Care System Redesign: The agreement includes a series of reforms in the employee health care system that saves $61 million annually in the CSEA contract and $263 million over the contract term. 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 contribution for health care benefits have not changed in 30 years, while the cost of the state's health care program has increased 100 percent in the past decade. 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).

Expected Savings: The CSEA agreement results in $30 million in annual savings from this provision, and $141.7 million over the contract term. If adopted for the entire workforce, this change will save $165 million per year, and $764 million over the term of the contract.

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. This will save the state thousands of dollars for each employee who opts out.

Savings: The opt-out will save $7.3 million annually and $31 million over the contract term for CSEA alone. The opt-out achieves $21.6 million in annual savings, and $91.8 million over the five year term if adopted statewide.

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.

Expected Savings: The CSEA savings for this provision are $22.3 million annually and $95.7 million over the contract term. If adopted by all bargaining units, these changes generate $85.5 million annually when adopted statewide, and $361.4 million over the term of the contract.

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.

Expected Savings: The furloughs will yield $360 million in savings if adopted by all bargaining units.

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 agreement, 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.

Negotiations for the State were led by a special team appointed by the Governor comprising Todd R. Snyder, Senior Managing Director of Rothschild Inc. and Co-Head of Rothschild's Restructuring and Reorganization group; and Joseph M. Bress, former head of the Governor's Office of Employee Relations and former Vice President of Labor Relations at Amtrak, under the direction of Howard Glaser, Director of State Operations.

Authority of an arbitrator to modify the disciplinary penalty proposed by the employer

Authority of an arbitrator to modify the disciplinary penalty proposed by the employer

Matter of Communication Workers of Am., Local 1170 v Town of Greece, 2011 NY Slip Op 05308, Appellate Division, Fourth Department

The arbitrator sustained various disciplinary charges against a Town of Greece police sergeant and determined that "[t]he Town had just and sufficient cause to demote" the Sergeant. The arbitrator further determined, however, that a permanent demotion was unreasonable and arbitrary, and converted the proposed penalty to a demotion for a term of one year.

The CWA asked Supreme Court to confirm the arbitration award while the Town asked the court to vacate the award in part on the ground that the award exceeded the scope of the arbitrator's authority. 

Supreme Court sustained Greece’s motion to vacate the award and remanded the matter to the Town for its imposition of a new penalty.

In response to CWA’s appeal, the Appellate Division held that Supreme Court erred in vacating that part of the arbitration award reducing the penalty to a demotion for a term of one year and remitted the matter "to the Town for reconsideration of the penalty to be imposed upon" the Sergeant and confirmed the arbitration award.

The Appellate Division said that an arbitrator’s award may be vacated on the ground that an arbitrator exceeded his or her power "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."* 

The Court explained that “It is well established that "an arbitrator has broad discretion to determine a dispute and fix a remedy[] and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself'," citing Matter of State of New York [Dept. of Correctional Servs.] [Council 82, AFSCME], 176 AD2d 1009, lv denied 79 NY2d 756. Further, the Appellate Division pointed out that "To exclude a substantive issue from arbitration, therefore, generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator's reach."

Specifically the court decided that the underlying collective bargaining agreement [CBA] authorized the arbitrator to determine that the imposed punishment is "unreasonable, arbitrary or capricious" and if so found, the CBA specifically provides that, "where the penalty imposed is found to be unreasonable, arbitrary or capricious," the arbitrator may make a determination "with respect to the penalty imposed upon the grievant . . . ."

The Appellate Division pointed out that while the CBA does not explicitly authorize an arbitrator to substitute an appropriate penalty upon determining that the penalty imposed by the Town is unreasonable, arbitrary or capricious, there is likewise no such "specifically enumerated limitation on the arbitrator's power."

Accordingly, the court conclude that the arbitrator did not exceed his authority in modifying the grievant's penalty from a permanent demotion to a demotion for a term of one year.

* Courts have also vacated an arbitration award where it is determined that the award “violated strong public policy.” See Ford v CSEA, 94 AD2d 262, in which the court addresses the critical question of the power of an arbitrator to render a decision which impacts on or affects a public policy.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05308.htm

Protected speech in public employment

Protected speech in public employment

Green v Board of County Commissioners, USCA, 10th Circuit, Docket 05-6297

The general rule applied in cases where a public employee’s allegation that his or her right to free speech has been violated is that while an employee's freedom of speech regarding matters of “public concern” may not be restricted by a public employer, the employer may prohibit an employee from speaking “in an official capacity.” The Green case involved the analysis and application of this general rule.

Jennifer Green was employed at Canadian County, Oklahoma's Juvenile Justice Center as a drug-lab technician and detention officer. As part of her job, she performed drug-screening tests. She was concerned that some of the samples tested produced “false-positive” results. As the Center did not have a confirmation testing policy, she raised the issue of “false positive” test results with her immediate supervisor, William Alexander. Alexander was not responsive.

Without Alexander’s knowledge, Green contacted the manufacturer of the drug-testing equipment used at the Center and asked questions about confirmation testing. In addition, she spoke with representatives of the Department of Human Services about the need for a confirmation test. Ultimately, Green arranged for a caseworker to transport a sample that had tested positive for drugs to a hospital for confirmation testing. The confirmation test indicated that the Center's initial test of the sample produced a false-positive result. Green communicated this information to Mr. Alexander. Soon thereafter, the Center adopted a formal confirmation testing policy.

Green complained following this episode her employer treated her less fairly and she was subsequently dismissed from her position. She sued, contending that her employer’s actions violated the federal Civil Rights Act, 42 U.S.C. 1983 [Civil action for deprivation of rights], and state-law. A federal district court judge dismissed her petition and Green appealed to the Circuit Court of Appeals.

One element of Green’s complaint alleged that the County’s actions violated her Constitutional right to free speech.

Addressing the “free speech” aspect of her appeal, the Circuit Court concluded that Green’s First Amendment rights had not been violated because Green’s “free speech” allegations did not involve communicating with newspapers or her legislators or performing some similar activity.

Green disagreed with her supervisors' evaluation of the need for a formal testing policy and her unauthorized obtaining of the confirmation test to prove her point. However, the Circuit Court, citing Garcetti v. Ceballos, 126 S. Ct. 195 [at 1960], said that a government employee’s First Amendment rights do “not invest them with a right to perform their jobs however they see fit.” Accordingly, there is no “judicial oversight of communications between and among government employees and their superiors in the course of official business” and “displacement of managerial discretion by judicial supervision.”

Here, said the court, Green's communications with third parties about confirmation testing are the types of communications that would be attributable to the Center and thus the Center has an interest in controlling them. Accordingly, in the eyes of the Circuit Court, Green’s speech was not “protected speech.”

Sustaining the lower court’s dismissal of Green’s petition, the Circuit ruled that with respect to the unauthorized confirmation test arranged for by Green and her related communications to third parties, Green did not speak or act in her capacity as a citizen, but rather was acting as a government employee and thus did not exercise protected free speech.

Free speech issues raised by public employees have been considered by the U.S. Supreme Court in a number of instances. Essentially public officers and employees enjoy “protected speech” in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreement concerning internal operations of the department or agency which do not rise to the level of a “public interest,” are not protected by the Constitution.

Typically, the resolution of such “free speech” cases turns on the court’s view as to whether the employee’s comments address a matter of “public concern” or a matter of “personal interest.”