ALAA Roots — An Unofficial Site

November 17, 2009

2009.11.17: RE: Extern Grievance

From: Letwin, Michael
Sent: Tuesday, November 17, 2009 2:30 PM
To: ALAA MEMBERS
Subject: RE: Extern Grievance

No, the problem is that once again:

1. The Executive Board violated ALAA’s bylaws, which state that, barring an emergency, decisions must be made by the Joint Council or the membership (see attached).

2. Union headquarters failed to report and seek membership input prior to any decision.

Whatever one’s opinion on the externs, that anti-democratic process is a recipe for disempowering the membership. As a result, leadership is not accountable to the members, and has no leverage with management.

_____________________________________________

From:  [S.]
Sent: Tuesday, November 17, 2009 2:11 PM
To: MEMBERS
Subject: RE: Extern Grievance

Here is our overall problem.  The negotiations after the fact were done – this was approved by the Executive Board and anyone from the Executive Board who was present at that meeting.  Many people were shocked to hear about this because they were not present at the meeting, despite being members of the Executive Board.  Membership was not made aware of this because their representatives on the Executive Board (myself included) – failed to share this information with their offices and groups.

This issue, for this year, has been dealt with.  Certain people may not like the results, but to essentially attempt a referendum on the E-boards vote and actions, in the guise of a “grievance” benefits no one.

_____________________________________________

From:  [T.]
Sent: Tuesday, November 17, 2009 1:59 PM
To: ALAA MEMBERS
Subject: RE: Extern Grievance

Would it matter to the rest of you if the remedy sought by the grievance called for making these externs INTERNS, instead of outright expulsion?  By far, the majority of the Brooklyn contingent would glady welcome these folk assisting us in dealing with our actual cases.  For all of us.  Demanding a remedy of removal is no different than the remedies we ordinarily argue for in court…we shoot for the moon, with the idea of negotiating something more realistic.  In fairness, union leadership asked for externs to be treated as interns and was shot down.  Of course, “asking” management to play nice may not always work.  Sometimes, we have to demand such relief because the opposing side wronged us in some material way.  Here, what management did (or didn’t do) cannot reasonably be seen as some innocent mistake.  Management has worked with the union in the civil dept for quite some time when it came to the issue of bringing in firm folk.  How could they not think the same ought to apply in CDD?  The implication is clear….they purposely avoided mentioning CDD externs because they knew of the potential fallout.

In any event, demanding that management include us in future hiring of CDD externs is not a sufficient remedy since we thereby implicitly concede the existence of EXTERNS (as opposed to INTERNS in CDD) going forward.  Later, we can no longer debate IF they should come, but (at best) how many? What borough? What division?  To that end, while management may have vowed to include us in such future discussions, it’s unclear  what parameters will be used to select externs in the future.  Does LAS (union and management) decide who joins us, or is the organization available to any associate who wishes to join us?  Do we (LAS) get to decide what division they are assigned to?   It sounds like the firms (and/or associates) made ALL decisions this last go around.  Perhaps, the fight of making them interns is completely untenable, but maybe we at least get to make the selection process more stringent than it was.  Finally, this is not the type of discussion that any of us are taking lightly, so it makes sense to me that it is at least discussed and voted up by a larger body such as the Joint Council.

All this ranting is making me thirsty.  If anyone asks, I’m in AP-7.

_____________________________________________

From:  [C.]
Sent: Tuesday, November 17, 2009 1:03 PM
To: ALAA MEMBERS
Subject: RE: Extern Grievance

Thank you, [E.].

Incidentally, [E.’s] discussion reflects the seriousness, thoughtfulness and intelligence with which ALAA leadership including delegates — and so many members, too — deal with the difficult issues of working at The Legal Aid Society.

_____________________________________________

From:  [E.]
Sent: Tuesday, November 17, 2009 11:59 AM
To: ALAA MEMBERS
Subject: RE: Extern Grievance

I think the one thing we can all agree on is that management was wrong in failing to notify the Union about the externs and in failing to sit down with us in advance to negotiate the terms under which they would work at CDD. That was the unanimous sentiment of the Executive Board and that is why the EB voted to demand that management negotiate with our leaders. That negotiation has already taken place and resulted, among other things, in management acquiescing to Brooklyn CDD not getting any externs. But, if the point of this proposed grievance is to protest management’s failure to sit down in advance, then it is purely symbolic. The clock cannot be turned back and the only remedy would be for management to agree to participate in the very negotiation that has already taken place. So, this grievance must be about something else.

And that something else better be really important. Because it is readily apparent that this proposed grievance, regardless of its intent, is threatening to undermine union solidarity by opening a rift between our Civil Division colleagues and those in the Criminal Practice. Management had no choice (and frankly, neither did our Union), in allowing the externs to work at CDD. To have said no would have been to risk the good will of the major law firms whose financial contributions are the lifeblood of the Civil Division. Civil is already reeling from government funding cutbacks and the potential loss of a large pot of money that had been generated by IOLA. The last thing our Civil Division brothers and sisters need is for the major law firms to reduce their contributions to Legal Aid as a result of the controversy over the extern program.

So, what’s the great principle at stake here? Time and again, at the EB and in emails,  I have heard the charge that the extern program constitutes union-busting. Well, union-busting is certainly a bad thing. Those of us who were around for the 1994 strike experienced it first-hand when Giuliani threatened to blacklist us and have us all fired if we didn’t return to work immediately. And our union continues to suffer from the existence of the non-union alternate providers that Giuliani set up in the aftermath of the strike. Granted, not every instance of union-busting is as blatant as what Giuliani did. But, how do 8 temporary externs in a 435 lawyer office threaten to undermine our union or diminish its power? They certainly don’t change the balance of power with Legal Aid management. I have no doubt that management has already come to regret its failure to notify ALAA in advance about the externs. Nor is it remotely conceivable that the extern program could constitute a blueprint that management can use in the future to undermine our union. And, as far as I can tell, the externs do nothing to threaten our funding from the City. The City couldn’t care less about the externs. CAB has had a volunteer program in existence for the past quarter century, in which law firm volunteers handle individual criminal appeals. Not once has the City ever suggested that CAB funding could be cut because we were benefiting from free labor from the law firms. The argument that it could happen with CDD funding would be especially ludicrous in light of the case cap legislation, which will kick in in 2010 and likely result in the hiring of scores, possibly hundreds, of new attorneys.

I’m not suggesting that the extern program is wonderful. I am suggesting that it’s time to accept it and to move on. The proposed Brooklyn CDD grievance is at odds with the decision taken by the Executive Board and can only be approved of by the Joint Council, our Union’s highest governing authority. I certainly hope the JC votes tonight not to endorse the Brooklyn grievance. It’s time to recognize, on balance, the extern issue for the molehill that it is and to send our Brooklyn CDD colleagues off in search of other mountains.

_____________________________________________

From:  [B.]
Sent: Monday, November 16, 2009 7:32 PM
To: ALAA MEMBERS
Subject: RE: Extern Grievance

I am a delegate in Brooklyn so I will speak for myself.  There was a majority vote in support of the grievance.  I am not personally opposed to the externs.

What is amazing to me is that this is even a debate.  This is clearly an issue that effects all of our jobs, and goes directly to our rights and abilities to negotiate with management over issues like this.  This is not about free help; its about management making serious staffing decisions without our input.

This is NOT about trying to hurt Civil, or destroy any relationship with the big firms that support LAS.  It’s not about any personal issues with externs.  Again, this is about how management makes decisions without our input.

I take issue with any attorney who thinks that we would be so petty.  Yes, we do not have externs in Brooklyn.  We made that choice, knowing it would be unpopular.  I personally voted for the grievance because I felt it was important to protect all of our rights and jobs.

Having different opinions in this union does make it stronger entity, but what will ultimately weaken us is this continued divisiveness over email.  I’m sorry if people just want us to move on and forget it about, but that is neither strategic nor smart when considering the long-term health and strength of our union.

(This message was approved by my officemate [G.]).

Sincerely,

_____________________________________________

From:  [S.]
Sent: Monday, November 16, 2009 5:35 PM
To: ALAA MEMBERS
Subject: RE: Extern Grievance

So are you representing that over 1/2 of Brooklyn CDD supports this grievance?  There was a vote?  Did more than 1/2 of Brooklyn CDD say they didn’t wish to have externs working in Brooklyn?

_____________________________________________

From:  [M.]
Sent: Monday, November 16, 2009 5:32 PM
To: ALAA MEMBERS
Subject: RE: Extern Grievance

Wow, we think alike – I was thinking that Queens isnt filing the grievance, so I don’t see the us of your email.

_____________________________________________

From:  [A.]
Sent: Monday, November 16, 2009 1:58 PM
To: ALAA MEMBERS
Subject: RE: Extern Grievance

Brooklyn doesn’t even have any externs, so I do not see the use for this grievance.

_____________________________________________

From:  [S.]
Sent: Monday, November 16, 2009 1:58 PM
To: ALAA MEMBERS
Subject: RE: Extern Grievance

Just two quick questions – (1) is a grievance the appropriate remedy? (2)  Were externs even contemplated at the time we were certified in 1969?

_____________________________________________

From:  Fry, Julie
Sent: Monday, November 16, 2009 1:06 PM
To: ALAA MEMBERS
Subject: Extern Grievance

The  members of Brooklyn CDD have voted to file a grievance regarding the hiring of the so-called “externs” to work as staff attorneys in the Criminal Defense Practice.  We would appreciate support form other boroughs and practices as well.  We have asked that this grievance be put on the agenda of tomorrow night’s JC meeting.  Below is the grievance we plan to file.  Please review it before tomorrow’s meeting.

Thank you.

Sincerely,

Julie Fry, VP Brooklyn CDD

Danielle Feman, VP Brooklyn CDD

Dear Mr. Banks:

On behalf of the Society’s criminal defense attorneys in Brooklyn, we hereby grieve placement of non-employee attorneys (“externs”) in the Criminal Defense Practice.

As stated in the Certification of Representation issued by the New York State Labor Relations Board on December 30, 1969, the Staff Attorney bargaining unit includes all non-supervisory attorneys and law graduates working at the Society. ALAA Collective Bargaining Agreement, § 1.1.1.

Terms and conditions of employment for Staff Attorneys, including various aspects of hiring, are governed by the CBA negotiated between The Legal Aid Society and the Association of Legal Aid Attorneys, UAW Local 2325. Nonetheless, without the union’s knowledge or agreement, management now accepted law firm “externs” to do beginning unit work in our division.

These externs were not chosen through the normal union-management selection process. They are paid by their law firms at a much higher rate than Staff Attorneys, and are otherwise not being treated according to ALAA’s CBA. They are not eligible to be union members or receive union representation.

Therefore, we seek immediate removal of all externs from the Society’s Criminal Defense Practice. Please let us know as soon as possible when we can meet with you to discuss these issues.

Sincerely,

Julie Fry, VP Brooklyn CDD

Danielle Feman, VP Brooklyn CDD

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