ALAA Roots — An Unofficial Site

March 10, 2017

Re: Joint Statement From the LGBTQ and ACLA Caucuses: We don’t need your permission to exist

From: Torres, Azalia
Sent: Friday, March 10, 2017 10:22 AM
Subject: Re: Joint Statement From the LGBTQ and ACLA Caucuses: We don’t need your permission to exist.

As someone who’s been at LAS for 6 months short of 30 yrs, I’ve experienced a lot of the conditions which have driven so many of my colleagues of color away. I’ve chosen to stay and address and struggle w colleagues and management to bring about change in an org which has often been insensitive to the needs of those of us who are not white or heterosexual or different in any way fr their  definition of normal and acceptable. Unlike many of you, I’ve personally experienced the type of exchanges that occurred via email to Jason. I’ve also throughout these years attempted to struggle to address those incidents with patience and with the goal of changing minds. Because of course it always falls on “us” different folks to educate and be sensitive to ignorance and indifference.

I’M TIRED!!  The burden is on all of you who have historically ignored the disrespect, ignorance, insensitivity, and hurtful behavior of not only the idiot who wrote the disgusting email but of many others in our midst: throughout the entire staff of LAS. I’m not going to be tolerant or willing to educate at all any individual who demonstrates repeatedly their disdain for all that doesn’t conform to their idea of “acceptable”. Individuals who view any efforts to educate them as a waste of time:  sensitivity or anti bias trainings. Even being disrespectful during the process. ENOUGH!

Things have to change around here in a dramatic way. Expressing views in statements is not enough. You who are not folks of color, LGBTQ, or different in so many ways, have to take responsibility for addressing your fellow colleagues when a wrong is committed. Stop looking to us to do the hard work. YOU MUST BEAR THE BURDEN. STOP GETTING OFF SO EASY BY JUST AGREEING WITH US. DO SOMETHING ABOUT THIS UGLINESS WHICH JUST MAKES OUR LIVES HERE AT LAS LESS THAN WONDERFUL.

This does not reflect the opinions of anyone but me. I take all responsibility for the above sentiments. Especially if someone is offended by them.

March 9, 2017

Joint Statement From the LGBTQ and ACLA Caucuses: We don’t need your permission to exist

Filed under: ACLA,Affirmative Action,Islamophobia,LGBTQ,Racism — nyclaw01 @ 5:53 pm

From: Ma, Ying-Ying
Sent: Thursday, March 09, 2017 4:53 PM
Subject: Joint Statement From the LGBTQ and ACLA Caucuses: We don’t need your permission to exist.

Joint Statement From the LGBTQ and ACLA Caucuses: We don’t need your permission to exist.

We don’t need anyone’s permission to exist, in fact, we’ve been existing since the beginning of time… and will continue to do so despite the violence perpetrated on our communities.

We are responding to an email of hate sent in response to the LGBTQ Caucus’ email regarding the killings of women of color who are trans. Honoring our lost community members, mourning and raising up the lives of our living and our dead is not brainwashing, it is our right. As it is our right to bring our full selves to work without being called abnormal, sinful, and without being dehumanized. It is this very dehumanization that contributes to the crisis of violence facing transgender women of color that the LGBTQ Caucus was compelled to write about yesterday. This is the context we write from.

We do not need anyone’s permission to exist.

Some of us didn’t sleep last night after reading the email. Some of us didn’t feel safe to come to work today. Some of us felt terror and fury for our clients. Some of us have never felt safe. Some of us are finding it hard to do the job we love. Some of us don’t have the privilege of simply opting out of this conversation, or tuning out the reality of violence that impacts our lives and the lives of people we represent. Attempts, by our colleagues, to halt or stop the conversation as a way to silence us, perpetuates violence and further marginalizes those of us who are most oppressed within our communities.

We do not need anyone’s permission to exist. And our very existence is not sinful, nor is our clients’. Rather, it is courageous and an act of daily resistance to survive.

Those of us who are trans, queer, people of color – specifically Black and Muslim, have appreciated the responses in solidarity with our communities. LGBTQ people of color experience marginalization in intersectional ways, and by people and places we call home, work, colleagues, and family. We welcome the support and allyship from those who prioritize our safety. In particular, we want to share our commitment to supporting people who wish to express their outrage around the transphobia, homophobia, racism, Islamophobia and xenophobia within our work space.

We do not need anyone’s permission to exist.

We will not tolerate anti-Blackness and transphobia in the name of the 1st Amendment. We appreciate the administration’s swift response in this matter, this time, and are hopeful that it will respond with similar speed to future instances of anti-Blackness and other forms of racism such as Islamophobia and xenophobia.

We do not need anyone’s permission to exist.

Marginalized people are leaving Legal Aid at an alarming rate because of the explicit and implicit bigotry and bias within our organization. For instance, Brooklyn has lost ⅓ of their attorneys of color this past year alone, due in large part to tacit endorsement of oppressive and racist conduct here at Legal Aid. Navigating the violent and hostile obstacles of our job is unsustainable if we cannot count on basic safety and respect in our work spaces.

We are caucuses comprised of, but not limited to, Black trans people, people of color, queer parents, Muslim immigrants and noncitizens, Jewish lesbians and people with disabilities. Not only do we not need anyone’s permission to exist, we demand that our organization commit to doing better by us and our clients.


ACLA & LQBTQ Caucus Members

November 27, 2013

2013.11.27: Now Posted: Azalia Torres Speech at Marden Award

Filed under: Affirmative Action,ALAA History — nyclaw01 @ 2:55 pm
From: Letwin, Michael
Sent: Wednesday, November 27, 2013 2:55 PM
To: ALAA MEMBERS; 1199 Members
Subject: Now Posted: Azalia Torres Speech at Marden Award

Now posted at:


On November 25, 2013, Azalia Torres (shown here with Attorney-in-Chief Steve Banks), public defender inBrooklyn since 1987, leading member of Association of Legal Aid Attorneys/UAW Local 2325, and co-founder ofAttorneys of Color of Legal Aid (ACLA), was one of the recipients of a 2013 Orison S. Marden Awards foroutstanding service to The New York Legal Aid Society.

In this brief video (4:47m), Azalia explains why the award belongs to attorneys of color and all Legal Aid staff attorneys.

Congratulations to all 2013 Marden Award recipients.

(Photo and video courtesy of LAS investigator Charles Billups.)

Preview YouTube video Azalia Torres Accepting The Marden Award

Azalia Torres Accepting The Marden Award

November 25, 2013

2013.11.25: Speech by Azalia Torres at Marden Awards

Azalia Marden 2On November 25, 2013, Azalia Torres (shown here with Attorney-in-Chief Steve Banks), public defender in Brooklyn since 1987, leading member of Association of Legal Aid Attorneys/UAW Local 2325, and co-founder of Attorneys of Color of Legal Aid (ACLA), was one of the recipients of a 2013 Orison S. Marden Awards for outstanding service to The New York Legal Aid Society.

In this brief video (4:47m), Azalia explains why the award belongs to attorneys of color, senior attorneys, and all Legal Aid staff attorneys.

Congratulations to all 2013 Marden Award recipients.

(Photo and video courtesy of LAS investigator Charles Billups.)

August 13, 2013

2013.08.13: ACLA Statement on the ALAA emails regarding Trayvon Martin

From: Bharati Narumanchi
Sent: Tuesday, August 13, 2013 12:48 PM
Subject: ACLA Statement on the ALAA emails regarding Trayvon Martin

The Attorneys of Color of Legal Aid (ACLA) was founded in 1990 by staff attorneys of color from all practice areas to address the dismal record of hiring and the retention of attorneys of color throughout Legal Aid. As a caucus of ALAA, we sit on the Executive Board, and actively participate in contract negotiations and other union issues. Our members also participate in community trainings, outreach and educational seminars.

We are aware of the many injustices our clients endure in society because we have experienced them firsthand. We stand against this in our work, and we are proud to work alongside our colleagues who recognize this struggle and fight with us.

The Zimmerman verdict was a legal and moral failure. And many of us have felt disheartened and disappointed regarding the existence of the type of laws that allowed an armed George Zimmerman to pursue and kill an unarmed 17-year old Trayvon Martin and to use deadly force without retreating. As people who work in the public sphere, we are keenly aware of the overwhelming disparities in the legal system that are predicated on race. Communities of color deal with a troubling duality — the over-enforcement of laws in their community as well as the under-enforcement of laws when it comes to victims who are people of color.

Historically, attorneys of color within Legal Aid have faced racism within this organization. In the past, we have been kept from promotions, certifications, and have often dealt with a hostile work environment.

Many people of color at Legal Aid felt that the ALAA emails that were circulating among fellow union members were insensitive and disrespectful. The email discussion created an environment where attorneys of color felt alienated by a lack of respect for our experiences. The email communications left many of the attorneys of color, and particularly newer attorneys of color, feeling silenced and left with anger, confusion, and a deeply sincere sense of pain.

The labeling of a dead, unarmed child, Trayvon Martin, as a “thug” or “trouble-maker,” and the viewing of an armed adult, George Zimmerman, as a “victim” demonstrates how laws and facts have historically been misapplied and misconstrued when race is a factor, especially when men of color are involved. We were deeply saddened to see some of these racist beliefs echoed in some of the emails circulated within ALAA.

For many attorneys of color, Trayvon Martin’s death was deeply personal. Trayvon Martin’s death evinces a historic, continued victimization and devaluation of the lives of the members of our community – a devaluation that began with our ancestors and continues today. These disparities are not only an affront to justice and an embarrassment to the legal profession, but they directly effect our brothers, sons and fathers – our families.

As ALAA members, we call for ALL to stand with us and change the culture within ALAA. Our vision for the Legal Aid Society is to have a positive environment that rejects the dominant messages that society sends of racism, sexism, classism, and homophobia. We seek to destroy that paradigm within ALAA as well, and we hope that by doing so, we will create a space that is truly egalitarian.

We hope that as brothers and sisters within this union that you will help us fight against injustice within the Legal Aid Society. We will continue to lead this fight, but we call on our colleagues to take a stand with us to continue to promote an inclusive environment at the Legal Aid Society.

ACLA therefore calls for anti-racism training for all attorneys at the Legal Aid Society. The Society conducts important and necessary trainings for staff which raise awareness about the needs of diverse populations we serve, and a comprehensive anti-racism training should become one of the mandatory staff trainings. Therefore, we call on our colleagues to join us in demanding a mandatory anti-racism training for all Legal Aid Society staff.

We hope that you will stand in solidarity with us.


The Attorneys of Color Caucus

May 23, 2007

2007.05.23: Why I am Voting for Azalia Torres

From: [M.]
Sent: Wednesday, May 23, 2007 6:51 PM
Subject: Why I am Voting for Azalia Torres

I’ve known Azalia for about 17 years.  We met in 1990, when the Attorneys of Color at Legal Aid (ACLA) was started.  We went on to become  two of the initial four co-chairs of ACLA.

In the time I’ve known her she has been a fierce, vocal, and constant advocate and defender of not only our union members but of our clients and of the communities we serve.

Some of us do this job because we believe in justice or equality or the constitution.  Some of us do it because we love to fight.  Some may have other reasons, but for some, its personal.  They are the ones that not only believe in justice and equality and sometimes the constitution;  they not only love to fight – they have to fight.  They’ve had to fight all of their lives for themselves, their families, their communities.  Fighting is a part of them that they embrace and nurture.  It gives them purpose;  keeps them strong;  keeps them committed;  and they speak up and step up – not matter against whom and even if theirs is the only voice.  This is Azalia, and this I believe is one of the things that sets her apart from the other candidates.

I was intrigued by Gerard Savage’s different approach to our problems and applaud the notion that “…we should think outside the box”.  I will not vote for Gerry because though he may have lobbying experience from years gone by and be a great attorney, he has not been active in this union.  I will not vote for Gerry because he said that if not elected, he would just go back to being a trial attorney.  He would not be involved in the union.

Debbie is also a good candidate.  I was on the E-Board when she was a VP.  She was a strong advocate for her members.  I did not see the same zeal when she became recording secretary.  I did not see assertiveness but rather acquiescence.

I think Azalia is far and way the best candidate because she is and  has been committed;  because she has been involved;  because she knows this union;  because she knows management and the political players;  because she has new ideas;  because she will listen;  because she will not be afraid;  BECAUSE ITS PERSONAL.

May 3, 2007

2007.05.03: Acceptance of Nomination (Azalia Torres)

From: Azalia Torres
Date: Thursday – May 3, 2007 3:21 PM

I accept the nomination for President because I believe that ALAA must be re-energized.In the last several years we have lost our unique character as a democratic, membership-driven fighting union. As a result, we have suffered a series of major give-backs in salary and benefits, without mobilizing the membership to fight back.

We need to reclaim our tradition as a union which encourages discussion on all issues that affect the lives of our membership.

A union which depends on the participation of all it’s members to different degrees to ensure it’s effectiveness and success in our struggle to maintain the highest quality of representation for the diverse communities we serve.

A union which makes use of different tactics and strategies to strengthen LAS, both economically and politically.

ALAA should be a voice for the many folks whose lives we affect on a daily basis. It should be instrumental in establishing LAS as a force to be reckoned with on issues arising from our practice.

I have served as delegate in Brooklyn CDD for many years. I was a member of the Executive Board (EB) from 1990-2004. Initially I represented the Attorneys of Color of Legal Aid and later I represented senior attorneys. I have participated in numerous contract negotiations with management.

In all that time, I have consistently been principled in expressing my views on all issues and in debating with those who have differed with me. I have emphasized the need for the exchange of ideas before any decision is made which affects our practice and quality of life at LAS.

Just as important, I have been able to work well with different sectors of our union regardless of any differences we may have on a particular issue.

The role of President of ALAA is a great responsibility and one that I take very seriously. I would expect accountability on all levels of our union. I would encourage constructive criticism to allow us to learn from any mistakes we might make.

Despite numerous differences among our members, I am confident that we can work together to recapture the spirit that we need to reestablish ourselves as a strong and effective union.

I appreciate your support.

May 26, 2005

2005.05.26: Re: Tribute to Azalia Torres (Bklyn-CDD)

From: Azalia Torres
Sent: Thursday, May 26, 2005 1:19 PM
To: L.Antonia Codling; 1199 Members; ALAA MEMBERS
Subject: Re: Tribute to Azalia Torres (Bklyn-CDD)

I want to thank you and everyone involved  from the bottom of my heart for  the honor you bestowed upon  me.  I was very moved and I am very grateful for all the wonderful things that were said about me.

I want to stress that it is folks like you and others in ACLA and our union who have helped to further my growth as a human being:   One who tries to struggle to the best of her ability for ongoing improvement in our daily grind to better the lives of folks in our community, even if just by putting roadblocks in the path of institutions dead set on keeping us down.

All of you, I know, will continue to be an inspiration to not only new and young attorneys at LAS but to folks in our community.  You will continue to exemplify through your commitment and daily struggles that we can bring about some changes in our reality for the better of many.

Again, I thank you for the tribute and look forward to continuing to work with you in this madhouse we call LAS.

>>> L.Antonia Codling 5/25/2005 6:32:57 PM >>>
Yesterday, at its reception to welcome new attorneys of color into the Society, the Attorneys of Color  (“ACLA”), a caucus of ALAA paid tribute to Azalia Torres (CDD-Bklyn), one of the founders of ACLA and staff attorney for 18 years.   We presented Azalia with a plaque and flowers to thank her for all of the work she has done on behalf of our clients, this caucus and our Union.

As this tribute was intended to be a surprise for the honoree, notice was unable to be sent prior to yesterday.  We thank everyone who attended and assisted in making it a wonderful evening.  For those who were unable to attend, the plaque read as follows:


For all of your years of tireless work on the Executive Board of ALAA and with The Attorneys of Color at Legal Aid;

For your constant willingness to raise your voice so passionately for what is right and just;  and,

For your undying commitment to our struggle for Affirmative Action, and your dedication to all other Union struggles for better working conditions-we thank you, we applaud you & we are eternally grateful.


Attorneys of Color at Legal Aid

>>> L.Antonia Codling 5/25/2005 6:32:57 PM >>>
Yesterday, at its reception to welcome new attorneys of color into the Society, the Attorneys of Color  (“ACLA”), a caucus of ALAA paid tribute to Azalia Torres (CDD-Bklyn), one of the founders of ACLA and staff attorney for 18 years.   We presented Azalia with a plaque and flowers to thank her for all of the work she has done on behalf of our clients, this caucus and our Union.

As this tribute was intended to be a surprise for the honoree, notice was unable to be sent prior to yesterday.  We thank everyone who attended and assisted in making it a wonderful evening.  For those who were unable to attend, the plaque read as follows:


For all of your years of tireless work on the Executive Board of ALAA and with The Attorneys of Color at Legal Aid;

For your constant willingness to raise your voice so passionately for what is right and just;  and,

For your undying commitment to our struggle for Affirmative Action, and your dedication to all other Union struggles for better working conditions-we thank you, we applaud you & we are eternally grateful.


Attorneys of Color at Legal Aid

March 23, 2002

2002.03.23: NYC Labor Solidarity With Immigrant Detainees

[Original Format: Leaflet]

NYC Labor Solidarity
With Immigrant Detainees

Join trade unionists, immigrant, civil rights, peace, and social justice organizations to oppose the mass detention of foreign nationals since Sept. 11. Most of the detainees are from the Mid-East and South Asia. The government has refused to release most of the detainees’ names. Because of this secrecy, some detainees may not have access to legal counsel. Some have suffered inhumane conditions of confinement. Virtually none have been charged with terrorist acts. Some of these detainees are being held at the Metropolitan Detention Center, a federal prison in Sunset Park, Brooklyn.

Saturday, March 23, 2002

Assemble: 10:30 a.m., 9 St./5 Ave., Bklyn. (N/R to 4 Ave. or F to 9 St.)

March: 11 a.m.–Sharp

Rally: 12 Noon–Sharp, Metro Detention Ctr., 29 St./3d Ave., Bklyn. (N/R to 25 St./4 Ave.)


•Freedom Legal Defense & Ed. Project

•Arab-American Family Support Ctr.

•Justice For Detainees Coal.

Labor Sponsors (list in formation)


•AFSCME L.2627, DC 37

•Assn. of Legal Aid Attorneys/UAW L.2325

•CWA L.1180

•Legal Aid Society Chap., 1199/SEIU

•Natl. Org. of Legal Services Workers/UAW L.2320

•Natl. Writers Union/UAW L.1981

•NY Taxi Workers Alliance

•NYC Labor Against the War (NYCLAW)

•Organization of Staff Analysts

•Professional Staff Congress-CUNY/AFT L.2334

•SEIU NY State Council

•UAW Region 9A NYC Area CAP Council

•UNITE Amalg. Services & Allied Joint Bd.

•United Elec., Radio & Machine Workers of America (UE)

•Larry Adams, Pres., MHU L.300*

•Christine Karatnytsky, Exec. Bd., NY Public Library Guild/AFSCME L.1930*

•Robert Lesko, V.P., AFT L.3882*

•John O’Connor, Secy.-Treas., AFM L.1000*

•J.P. Patafio, Depot Chair, TWU L.100*

•Judy Sheridan-Gonzalez, RN, Chair, Delegate Assembly, NYS Nurses Assn.*

•Joel Schwartz, Pres., CSEA/AFSCME L.446*

•Gangbox: Construction Workers News Serv.•Global Sweatshop Coal.•Greater NY Labor-Religion Coal.•Melanie Kaye/Kantrowitz, Dir., Queens College Worker Ed. Extension Ctr. (FIPO); PSC-CUNY/AFT L.2334 & NWU/UAW L.1981*•Industrial Workers of the World (NYC)•Labor at the Crossroads TV•Natl. Employment Law Project•Natl. Lawyers Guild/NYC Chap., Labor & Employment Cttee.•New Caucus of PSC/CUNY•NY Jobs with Justice

Cosponsors (list in formation)

•American Assn. of Jurists•American-Arab Anti-Discrimination Cttee.•American Friends Serv. Cttee.•Another World is Possible (AWIP)•Asian American Legal Defense & Ed. Fund•Asian Americans for Equality•Black Radical Congress•Bklyn Bridges•Bklyn Heights Peace Action•Bklyn Parents for Peace•Bklyn Society for Ethical Culture, Ethical Action Cttee.•Chhaya CDC•Dennis Brutus, S. African poet & activist•Ctr. for Anti-Violence Ed.•Ctr. for Constitutional Rights (CCR)•Central Bklyn Indep. Democrats•Coal. for the Human Rts. of Immigrants•Council on American-Islamic Relations (CAIR)•CUNY Is Our Future•Desis Rising Up & Moving (DRUM)•Faith Health NY•Fifth Ave. Cttee.•Flatbush Peace Action•Green Party: Kings Co. & Park Slope chapters•Help & Hope•Jews for Racial & Econ. Justice (JFREJ)•Intl. Action Ctr. (IAC)•Intl. A.N.S.W.E.R.•Intl. Socialist Org. (ISO)•Make the Road by Walking•Met. Council on Housing•Natl. Korean American Serv. & Ed. Consortium (NAKASEC)•Natl. Lawyers Guild•Natl. Lawyers Guild—NYC Chap.•NJ Indep. Alliance•NY Coal. for Peace & Justice•NY Immigration Coal.•NYC AIDS Housing Network•Northwest Bronx Support Cttee. For the Homeless•Lesbian Herstory Archives•Nicaragua Solidarity Network•Pakistan League of America•Prison Moratorium Proj.•Prospect Lefferts Voices for Peace & Justice•Puerto Rican Legal Defense & Ed. Fund•Student Cttee. Against Labor Exploitation•Theater of the Oppressed Laboratory•VEER Grassroots Serv.•Clarence Fitch Chap. of Vietnam Veterans Against the War (VVAW)•War Is Not the Answer•War Resisters League•Women for Afghan Women•Women’s Intl. League For Peace & Freedom, NY Metro Branch•Workers Democracy Network•Working Families Party, Bklyn Waterfront Club•World Peace 911•Rev. Paul Smith, First Presbyterian Church•Rev. Elizabeth Alexander, Church of Gethsemane•Rev. Elizabeth Braddon, Park Slope United Methodist Church•Rev. Peter Laarman, Sr. Minister, Judson Memorial Church, Greenwich Village•City Councilmember Margarita Lopez•Jane Sweeney, Governing Bd., Citizen Action NYC; Exec. Cttee., Village Indep. Democrats.*

*Position shown for ID only; no organizational endorsement implied.

Info: 212.343.0708,•Union labor donated–March 18, 2002(4)

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

[ 3 8 J


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

[ 3 9]


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]


• 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

[ 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


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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