ALAA Roots — An Unofficial Site

January 9, 2002

2002.01.09: Executive Board Agenda

2002.01.09- Executive board agenda — alaa — OCR


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?




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

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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


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

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



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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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

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• 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

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


• Allowing employees to enter the plant

• 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

• 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

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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


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


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.


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


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


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


•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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