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
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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.
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