ALAA Roots — An Unofficial Site

January 23, 2002

2002.01.23: Q & A on CDD Comp Time

[Original format: Comp Day QA

Q & A on CDD Comp Time

January 23, 2002

Q. What is the new CDD comp day policy?

For many years, CDD attorneys have received paid health and other benefits during use of accumulated comp days in conjunction with extended unpaid leave. On January 7, 2002, the Society issued a memo to staff stating that “[a]ll Comp Time applied toward any type of paid or unpaid leave lasting more than ten business days will be paid as a lump sum.”

Q. What does that mean in practice?

The meaning of this policy is not entirely clear.

Attorneys who use comp days in conjunction with long-term unpaid leave will be charged for the cost of health benefit premiums for that specific period. Thus, as we understand it, an attorney who takes a paid parental leave in conjunction with 30 vacation days and 30 comp days would be charged for the cost of health benefits during at least some of the final 30 days.

Notwithstanding the policy’s plain language, however, there is conflicting information about whether it will apply to an attorney who uses comp days in conjunction with a short-term leave lasting more than ten days–e.g., less than 30 days total.

Q. Why has this come up now?

On January 14, Theresa DeLeon, LAS Chief Operating Officer, informed the ALAA Executive Board that this policy was being implemented in the context of a $4.6 million CDD/CAB budget deficit due to: (1) Elimination of state funding for the Parole Revocation Defense Unit ($1.3 million); (2) The city’s failure to provide cost of living funds for collective bargaining ($2.7 million); and (3) $600,000 unrealized attrition.

Q. How has ALAA responded to the new policy?

The Union’s call for withdrawal of the policy has been strongly voiced, inter alia, at a January 14 meeting with Theresa DeLeon; in a January 16 union-wide grievance (supplemented by CDD boro grievances); and in a January 17 meeting between ALAA President Michael Letwin, ALAA Secretary-Treasurer Charlotte Hitchcock, and Theresa DeLeon.

ALAA has also asked Management to: (1) Provide staff with a written report on the above deficit; (2) Clarify the meaning of the new policy; (3) Detail anticipated savings from the new CDD comp day policy and of any other measures (including those that affect management personnel); and (4) Address both the budget and the new comp policy at the Delegate Council on Thursday, January 24.

Q. What about legal action?

ALAA legal action is democratically decided by the Delegate Council, based on advice of counsel. Union counsel will address the following questions at this Thursday’s Delegate Council meeting:

• Does the new policy violate the CBA, particularly since the contract specifies that “[a]ccumulated days may be taken as vacation”?;

• If not, does the NLRA [National Labor Relations Act] require LAS to bargain before imposing the new policy? If so, is there a remedy that would ultimately prevent LAS from unilaterally implementing it?;

• Does this change violate any other statute (e.g., FMLA [Family Medical Leave Act])? If so, what is the proper forum and remedy?;

• Do individual attorneys have a detrimental reliance claim for having used up vacation days (which continue to carry paid benefits) rather than comp days?;

• What is the likelihood of preliminary injunctive relief against the policy?; and

• If the new policy is successfully challenged on one or more of the above grounds, does our contract language permit LAS to otherwise limit or restrict comp time?

Q. Who can participate in the Delegate Council meeting?

All Union members are encouraged to attend and participate in Delegate Council discussions; as a representative body, only elected members (delegates and officers) may vote. DC meetings are governed by Roberts Rules of Order.

Advertisements

January 14, 2002

2002.01.14 – Executive Board Agenda ALAA — OCR

ALAA UAW 2325
Executive Board Agenda
January 14, 2002

Estimated length: 2 hours

1. Postponed: LAS Funding/Budget (with Theresa De Leon).

1.1. General.

1.2. Comp Day Change.

2. Draft Statement in Defense of Civil Liberties (attached).

3. Meeting Schedule for 2002.

Proposed ALAA Statement in Defense of Civil Liberties

January 11, 2002

As a labor union whose members fight each day for the statutory and constitutional rights of

indigent New Yorkers, The Association of Legal Aid Attorneys, UAW Local 2325, is deeply

opposed to the Bush administration’s broad assault on precious civil liberties and democratic rights.

This assault mirrors other shameful periods of racial, ethnic and/or political hysteria in

American history, among them the Alien and Sedition Acts (1798), Asian exclusion (1880s-1890s ),

“Sedition” prosecutions (World War I), the Palmer Raids (1919-1920), Japanese-American

internment (1940s), McCarthyism (1950s), the FBI’s COINTELPRO war on dissent (1960s), and

exclusion ofHaitian and Central American political refugees (1980s).

Today, these policies are reflected in the:

•”USA Patriot Act,” which authorizes the government, without meaningful judicial review,

to: designate domestic groups as “terrorist organizations”; indefinitely incarcerate or detain noncitizens

based on mere suspicion; deport immigrants for innocent association with others; and violate

confidential fmancial, medical, educational and other records without probable cause. (First, Fourth,

Fifth, and Sixth amendments).

•Mass detention of more than 1200 foreign nationals-almost all of them from the Mid-East

and South Asia–about whom the government has refused to provide information, who have often

been denied access to legal counsel or consular officials, who suffer inhumane conditions of

confinement-and virtually none of whom have been charged with terrorist acts. (Fourth, Fifth, Sixth

and Eighth amendments.)

• Detention and deportation hearings before secret immigration courts hearing secret evidence.

(Fifth Amendment.)

•Coercive and discriminatory questioning of 5, 000 young male legal immigrants men, mostly

of Middle Eastern descent, without probable cause. (First and Fifth amendments.)

•Deportation campaign against men of Muslim and Middle Eastern origin. (Fifth

Amendment.)

•Authorization by the attorney general-without judicial review–for eavesdropping on

confidential attorney-client communication. (Sixth Amendment.)

•Trial of non-citizens accused of terrorism before secret military tribunals which deprive the

accused of an independent forum, their chosen attorneys, the presumption of innocence, proof

beyond a reasonable doubt, confrontation of evidence, exclusion of hearsay, a unanimous verdict,

and habeas corpus review by civilian courts. (Fourth, Fifth, and Sixth amendments; Geneva

Convention).

•Heightened FBI spying on domestic religious and political organizations. (First

Amendment.)

•Open consideration of torturing prisoners suspected of terrorism. (UN Convention Against

Torture, Fifth and Eighth amendments).

History teaches that our civil liberties and democratic rights are most endangered-and most

essential–during times of crisis. ALAA, therefore, supports and endorses all efforts to defend these

freedoms against the attacks discussed above.

Proposed 2002 ALAA Meeting Schedule

January 14, 2002

[NB: Checked for conflicting Jewish holidays, per <http://bnaibrith.org/caln.html>%5D

Tuesday, January 9: EB

Monday, January 14: EB

Thursday, January 24: DC

Wednesday, February 13: EB

Tuesday, March 12: EB

Tuesday, March 19: DC

Wednesday, April10: EB

Tuesday, May 7: EB

Tuesday, May 14: DC

Wednesday, June 12: EB

Tuesday, July 9: EB

Tuesday, July 16: DC

Wednesday, September 11: EB

Tuesday, September 17: DC

Tuesday, October 8: EB

Wednesday, November 13: EB

Tuesday, November 19: DC

Tuesday, December 10: EB

January 9, 2002

2002.01.09: Executive Board Agenda

2002.01.09- Executive board agenda — alaa — OCR

ALAAUAW 2325

Executive Board Agenda

January 9, 2002

Estimated length: 2 hours

1. Postponed: LAS Funding/Budget (with Theresa De Leon)

2. Collective Bargaining.

2.1. Draft CBA.

2.2. Affirmative action plan.

2.3. New comp. day policy (attached).

3. Grievances.

3.1. Zachary Smith (JRD).

3.2. Jim Rogers (CDD–Bx)(attached).

4. Bylaws Revision.

5. Draft Statement in Defense of Civil Liberties (attached).

6. Political Action.

6.1. Liz Krueger race.

6.2. Council speaker election.

7. Meeting Schedule for 2002.

For over eighteen years, the union has used a room at the

plant as a union office. With two years to go in our current \

agreement, the human relations manager informed us that

the space is needed for storage and the union has three

weeks to vacate. The contract makes no reference to union

office space. Can we file a past practice grievance?

4

INDEPENDENT PAST

PRACTICES

P.ST PRACTICES that mncem subjects not mentioned ;n the

written ~reement are called independent past practices. A vending

machine in a break area is a typical independent past practice.

Other common examples are rest breaks, employee discounts,

work assignments, and starting times.

When called on to decide whether an independent past practice

is contractually binding, arbitrators usually apply the 1’Ule of reasonable

expectations. Under this rule, if the nature of a practice is such

that the union should have had a reasonable expectation that the

practice would continue, the practice will likely be considered

binding. If the nature of the practice is such that the union should

[ 3 8 J

4. INDEPENDENT PAST PRACTICES

have been aware that it was subject to change, the practice will

likely be ruled as nonbinding.

In most cases, the rule of reasonable expectations gives binding

effect to practices that confer personal or economic benefits on employees,

such as vending machines, rest breaks, and discounts. Practices

that concern methods of work or the direction of the workforce, such as

work assignments and starting times, usually do not satisfY the rule

and therefore can be changed by management after bargaining to

impasse.

•……. .•.••.•••••••••.•••••••………….•….... ………….•.••••••

The Silent Agreement

U.S. SIXTH CIRCUIT COURT: “An arbitrator may properly incorporate

the past practices of the parties or the ‘common law of the

shop’ into the written collective bargai_ning agreement where that

document is silent or ambiguous on a matter!’25

ARBiTRATOR WHITLEY P. McCOY: “Custom can, under some

onu!lual .circumstances, form an implied term of a contract. Where

the company has always done a certain thing, and the matter is so

well understood and tal<en for granted that it may be said that the

contract was entered into upon the assumption that that customary

action would continue to be taken, such customary action may

. be an iMplied term!’ 26

~~•i•~••••••••••••••••••••••••••••••••••••••••••••••••s••••••••••••••••

BENEFiT PRACTICES

Past praCtices that create personal or economic benefits, union or

. employee privileges, or favorable working conditions are called

benefit practices. When a benefit practice is longstanding and

[ 3 9]

HOW TO WiN PAST PRACTICE GRIEVANCES

does not conflict with the written agreement, it is reasonable for

tbe union to rely on its continuance. The union’s expectation,

combined with the employer’s silence on the matter during negotiations,

implies an agreement to maintain the practice.

Pay practices. When an unwritten practice favorably affects

employees’ pay, it usually creates reasonable expectations. Practices

found binding by arbitrators include:

• Paying employees on a weekly basis.27

• Time-and-a-half pay for Sunday work.zs

• Paying employees for their ltinch period.29

• Holiday pay for employees absent from work ~ecause of illness.3o

• Paying employees for time lost when seeing a doctor for an

industiial injury.3l

• Providing a Christmas bonus.32

• Reimbursement for damage to employee cars.33

• Providing uniform allowances.34

• Giving employees shares of stock after twenty-five years of service.35

Rights and privileges. Past practices that create rights, privileges,

and other fringe benefits create reasonable expectations. Practices

found binding include:

• Applying seniority in making promotions.36

• Furnishing and cleaning work gloves without

cost to employees.37

• Holding an annual pim{c during work hours.38

• Employee discounts on company ptodPc:ts.39

• Free meals.40

• Free coffee.41

[ 4 0]

4. INDEPENDENT PAST PRACTICES

• Scheduling group leaders to work overtime when employees

they assist and instruct are so scheduled.42

• Calling in off-duty workers for overtime duties.43

• Allowing employees to decline work on holidays.44

• Allowing employees to choose their vacation schedules.45

• Three-month paid leave of absence before an employee’s retire-

.ment date.46

• Half-day off the day before Thanksgiving.47

• Allowing employees to take home company vehides.4s

• Allowing employees to use work vehicles to travel to and from

work.ss

Favorable working conditions. Past practices that provide favorable

working conditions usually create reasonable expectations.

Practices found binding include:

• Letting employees arrive late or go home early when a heavy

snowfall occurs.so

• Allowing employees to enter the plant early.st

• Permitting employees to leave the employer’s premises during

downtime. 52

• Allowing employees to take breaks on the honor system. 53

• Employee parking in company lots;s4

• Providing vending machines on the shop floor.ss

• Letting employees drink coffee in

work areas. 56

• Providing personallockers.57

• Allowing employees to stop work

early to wash up. 58

• Personal coffee pots. 59

[ 4 I]

Association of legal Aid Attorneys

UA W local 2325 (AFl-CIO/ClC)

568 Broadway, Rm. 702A, New York, NY 10012 .. 3225

Tel.: 212.343.0708 T Fax: 212.343.0966

~36

James Rogers

Legal Aid Society

Criminal Defense Division

1 020 Grand Concourse

Bronx, New York 10451

Dear Jim:

December 28,2001

Enclosed please find a copy of a letter, dated Dec. 27, 2001, from Owen Rumelt,

ALAA’ s Counsel, summarizing his legal research on the unmarried, opposite sex domestic

partner health benefits issue which concerns you. Also enclosed is a NYLJ article on a 1999

federal case deciding a Title VII challenge to the denial of such benefits.

Please feel free to call me to further discuss this issue.

cc: Michael Letwin

Sincerely,

George Albro

Secretary /Treasurer

Richard A. LeVy

Daniel J. Ratner

Mitra Behroozi

Daniel Engelstei.ri”

Gwynne A. Wilcox*

Pamela Jeffrey

Owen M. Rumelt •

George Albro, Esq.

Secretary-Treasurer

Association of Legal Aid Attorneys

568 Broadway, Room 702A

New York, NY 10012

Dear George:

December 27,2001

Richard Dorn

Sherri Levine

Veronica Villanueva •

CarlJ. Levine

David SlutskyA

Allyson L. Belovin

Suzanne Hepner •

Tarik Found Ajami

J:l.wmW;.

Belle Harper

Michael Steven Smith

David P. Horowitzt

‘Admitted in NY, MA and DC

*Admitted in NY, NJ and PA

•Admitted in NY and DC

A Admitted in NY and NJ

• Admitted in NY and CT

t Admitted in NY and MA

You have inquired whether the provi~ion ~fd~pendenthealth insurance coverage to same• sex

domestic partners and married couples, but:not to opposite~sex domestic partners, is violative of-any

New York State or New York City statutes or regulations which preclude discrimination based upon

sexual orientation. There is no clear answer as. to whether, generally spealdng, the provision of

benefits to same-sex couples, but not to opposite-sex ones, constitutes UnJ:awful discrimination on

the basis of sexual orientation. Notwithstanding the foregoing, the benefits at issue here are provided

under an employee benefit plan which is subject to the Employee Retirement Income Security Act

· of 1974, as amended (“ERISA.”) The Supreme Court has held that, to the extent that state law

. prohibits employment practices which are permissible under Title VII, such state :law is preempted

with respect to ERISA benefit plans. See, Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 77 L.Ed.2d

· 490 (1983). Accordingly, although discriminationon thebasis of sexual orientai:i0nmayproscrihed

under New York State and New York City regulations, the current. practice i~not· subject to legal .

challenge. Similarly, a .benefit program ·which provides dependent coverage solely to married

couples and domestic partners (regardless of the partners’ sexual orientation) where the. employee

,,;:< has a child . (and would, therefore, be otherwise entitled to dependent coverage) would not be

unlawful. We note, parenthetically, that, in the event there was no preemption, any challenge of the

benefit program would had to have been pursued through the courts; the matter could not have been

grieved, as it is my understanding that benefits were being provided in accordance with the collective

bargaining agreement.

Please do not hesitate to call if you have any additional issues you wish to discuss.

Sincerely yours,

0-rL/Y Owen M .. Rumelt

OMR:bms

W:\232501l\OR0939:WPD .

·. :.. .

Proposed ALAA Statement in Defense of Civil Liberties

January 9, 2002

As a labor union whose members fight each day for the statutory and constitutional rights of

indigent New Yorkers, The Association of Legal Aid Attorneys, UA W Local 2325, is deeply

opposed to the Bush administration’s broad assault-largely by executive fiat–on essential civil

liberties and democratic rights.

This assault includes the:

•”USA Patriot Act,” which authorizes the executive branch to designate domestic groups as

“terrorist organizations”; permits the attorney general to indefinitely incarcerate or detain noncitizens

based on mere suspicion; permits deportation of immigrants for ilmocent association with

others; violates confidential financial, medical, educational and other records without probable

cause; and, as explained by the ACLU, gives “enormous, unwarranted power to the executive branch

–which can be used against U.S. citizens– unchecked by meaningful judicial review.” (First,

Fourth, Fifth, and Sixth amendments).

• Largest campaign of mass detention in this country since World War II, based on racial and

ethnic profiling rather than probable cause, of more than 1200 foreign nationals-almost all of them

from the Mid-East and South Asia–about whom the government has refused to provide information,

who have often been denied access to legal counsel or consular officials, who suffer inhumane

conditions of confinement-and virtually none of whom have been charged with terrorist acts.

(Fourth, Fifth, Sixth and Eighth amendments.)

• Detention and deportation hearings before secret immigration courts hearing secret evidence.

(Fifth Amendment.)

•Coercive and discriminatory questioning of 5,000 young male legal immigrants men, mostly

of Middle Eastern descent, without any basis or showing of probable cause. (First and Fifth

amendments.)

•Authorization by the attorney general-without judicial review–for eavesdropping on

confidential attorney-client communication. (Sixth Amendment.)

“Plans to try non-citizens accused of terrorism before secret military tribunals in which the

accused are deprived of an independent forum, their chosen attorneys, the presumption of innocence,

proof beyond a reasonable doubt, confrontation of evidence against them, exclusion of hearsay, a

unanimous verdict, and habeas corpus review by civilian courts. Columnist Anthony Lewis has

called this measure-which could theoretically be used against any of 20 million noncitizens in the

United States–“the broadest move in American history to sweep aside constitutional protections.”

(Fourth, Fifth, and Sixth amendments; Geneva Convention).

•Plans to relax restrictions against FBI spying on domestic religious and political

organizations. (First Amendment.)

• Mandatory “patriotism,” evidenced in government antagonism to free and open debate over

the administration policy-as reflected in the attorney general’s claim that critics were providing

“ammunition to America’s enemies.” (First Amendment.)

•Open consideration of torturing prisoners suspected of terrorism. (UN Convention Against

Torture, Fifth and Eighth amendments).

These policies threaten our freedom and security, without effectively addressing the problem

of terrorism. Indeed, we have invariably come to regret, and even apologize for, similar episodes

of hysteria and repression in American history, among them the Alien and Sedition Acts (1790s),

World Wari (1917), the Palmer Raids (1920), Japanese-American internment (1940s ), McCarthyism

(1950s), and the FBI’s COINTELPRO war on dissent (1960s). For just this reason, the AFL-CIO

recently urged Congresss “not to allow hysteria to supplant judgment in granting new and secretive

powers to the Justice Dept. and the intelligence agencies.”

Surely, the lesson is that civil liberties and democratic rights are most at-risk-and most

precious–during times of crisis. ALAA, therefore, joins those the many unions, professional

associations, and other organizations who have called for defense of our essential rights.

January 8, 2002

2002.01.08: New City Criminal Justice Coordinator (NYLJ)

Filed under: 1994 Strike,Indigent Defense — nyclaw01 @ 12:00 pm
Tags:

From: MLetwin@HQWEST.WEST [mailto:MLetwin@HQWEST.WEST]
Sent: Tuesday, January 08, 2002 11:06 AM
To: Everyone At The Legal Aid Society@HQWEST.WEST
Subject: NEW CITY CRIMINAL JUSTICE COORDINATOR
Importance: High

<http://www6.law.com/lawcom/displayid.cfm?statename=NY&docnum=104332&table=news&flag=full&gt;

Mayor Picks New Justice Coordinator
By Daniel Wise
New York Law Journal
January 8, 2002

Mayor Bloomberg on Monday appointed John Feinblatt, the founder and head of a non-profit group that serves as the Office of Court Administration’s think tank, as his criminal justice coordinator.

Mr. Feinblatt will oversee the city’s criminal justice budget. Currently the city spends about $137 million a year for the defense of the indigent, which is allocated between the Legal Aid Society, 18-B court-appointed lawyers and about 10 other non-profit groups, including seven that were funded for the first time during Mayor Giuliani’s tenure. The Criminal Justice Coordinator’s Office also sets spending priorities for the city’s five District Attorneys’ Offices.

In another appointment of interest to the legal community, Mayor Bloomberg named Patricia Gatling, who held the number three position in the Brooklyn District Attorney’s Office, as the head of the Human Rights Commission.

The Mayor also appointed Mark Page head of the Office of Budget and Management, where he had been deputy director and general counsel. Other officials appointed yesterday were Roberto Velez, who had been Commissioner of Probation, as head of Office of Administrative Trials and Hearings, which conducts administrative hearings for all city agencies, and Michael J. Handy, who was re-appointed as director of the Office of Veteran Affairs.

Mr. Feinblatt’s appointment was praised by Chief Administrative Judge Jonathan Lippman, who described him as “an out-of-box thinker” who had helped develop some of OCA’s most important initiatives, including the establishment of community courts, drug courts and domestic violence courts.

Mr. Feinblatt stressed yesterday he will continue the Giuliani’s Administration focus on the prosecution of quality-of-life crimes. Mr. Feinblatt also said that he had not had a chance to analyze the details of the Giuliani Administration’s efforts to fund organizations in addition to the Legal Aid Society, but he noted that “the bottom line is, there needs to be a healthy criminal defense bar just as there needs to be a healthy prosecution.”

After graduating from Catholic University School of Law in 1982, Mr. Feinblatt worked for the Legal Aid Society for five years. Then for six years, he was the deputy executive director of an agency, now known as Safe Horizons, which provides social services to victims of domestic violence. After that he became director of the Midtown Community Court, where he remained from 1991 to 1996.

In 1996, Mr. Feinblatt, 50, founded the Center for Court Innovation, which has worked closely with OCA on a number of projects and now has an annual budget of $11 million. The group has multiple private and public funding sources, including $775,000 a year from OCA.

A mental health court part, which is slated to soon open in the Criminal Court in Brooklyn, is the organization’s latest experimental project.

The Office of the Criminal Justice Coordinator has a staff of about 50 and an annual personnel budget of $2.8 million. Mr. Feinblatt succeeds Steven M. Fishner, who had worked for 18 years at the Manhattan District Attorney’s Office and was in charge of administration for that office when he was appointed by former Mayor Giuliani in 1998.

Praise From Hynes
Ms. Gatling, the new head of the Human Rights Commission, also received strong praise yesterday from her former boss, Brooklyn District Attorney Charles J. Hynes. Mr. Hynes said Ms. Gatling had achieved the “highest level of success” in her 12 years in the Brooklyn office, where she was the chief of major narcotics investigations, and had oversight of the office’s initiatives to provide alternatives to imprisonment and aid to convicts after release from prison. She was also in charge of improving the office’s community relations and legal hiring.

Ms. Gatling began her legal career as an assistant district attorney in Brooklyn following her graduation from the University of Maryland School of Law in 1982. After three years, she joined the Office of the Special Narcotics Prosecutor, and from there went on to prosecute police brutality and corruption cases with Mr. Hynes when he was appointed by former Governor Mario Cuomo as special prosecutor to investigate the New York City criminal justice system.

Ms. Gatling said she intends to apply the law enforcement techniques used in the Brooklyn office to the Human Rights Commission, which was recently criticized by the Association of the Bar of the City of New York for its lack of an aggressive approach.

The commission was “designed as a law enforcement agency and the Mayor wants it to be a law enforcement agency,” she said.

Specifically, she said she would adopt two of the recommendations of the City Bar report by setting up a system for the early assessment by senior staff of discrimination complaints to save the agency’ resources for the most promising cases.

She also pledged to have senior staff quickly review the 4,000-case backlog, which has accumulated under the commission’s first in/first reviewed system. Every effort will be made, she added, to focus the commission’s resources on those cases that will “have the largest impact for the most citizens.”

While the Human Rights Commission has 37 employees in its law enforcement division, it has a total of 124 workers, including personnel assigned to community relations and its HIV prison project. It receives about 1,100 complaints of discrimination a year.

Blog at WordPress.com.