May Curtail Provisionals
Union Rep Bill Gets Legislature's Okay

By REUVEN BLAU

A series of bills backed by the State AFL-CIO were passed by the State Legislature last week, including a measure to reinstate public employees' rights to union representation during conferences with their supervisors that could lead to disciplinary action.

DENIS M. HUGHES: Must protect worker rights.

The federation worked with Governor Spitzer's legal counsel to draft the Weingarten rights measure after the state's highest court ruled in March that public employees who are governed by the Taylor Law are not covered by the National Labor Relations Act.

'Entitled to a Rep'

"We've been trying to do Weingarten rights for a long time," said Denis M. Hughes, president of the State AFL-CIO. "We believe everyone is entitled to representation, especially when involved in a union."

The State Legislature also passed a bill to amend the Civil Service Law to require jurisdictions to come up with a systemic way to replace provisionals with permanent employees.

The measure, which was backed by District Council 37, is the Legislature's reaction to a ruling by the state's highest court in May that the Civil Service Employees' Association cannot grieve the firings of 12 long-term provisional employees based in Long Beach.

"It will [allow] unions to enter into agreements to provide due process for those individuals," said Mary O'Connell, DC 37's associate general counsel, "to make sure that the city gives exams for permanent appointment."

The Bloomberg administration is strongly supporting the measure. The bill would not afford provisional employees any added rights or benefits.

Would Mean More Tests

There is no fiscal implication attached to the measure. But if signed into law by Governor Spitzer, it would likely force jurisdictions to hold additional civil service exams, which could be costly.

There are close to 30,000 provisionals currently employed by the city, according to the Department of Citywide Administrative Services.

Creating a system to give all those workers an opportunity to gain permanent status would be a complicated process, as many of those provisionals work in high-turnover titles and some are employed in very specific fields. The largest single category of provisionals consists of workers in clerical titles, reflecting high turnover in such jobs.

City agencies are allowed to hire or promote workers provisionally when they face an immediate need and a list is not available. Provisionals are supposed to be made permanent Competitive-Class employees or be replaced within nine months by candidates drawn from lists, but this rule is often ignored.

Problem in Long Beach

DC 37 and other unions have long urged the testing agencies to administer more civil-service exams. The issue surfaced in March 2004, after the State Civil Service Commission issued a report which admonished Long Beach for its poor control over provisional appointments. The report noted that a number of Competitive-Class positions had been improperly filled with and retained by provisional employees.

In response, that city appointed a new Civil Service Commission that ordered the city to address the issue. The city then met with the provisional employees to discuss their employment status. After those conferences, the city determined that the continued employment of certain provisionals violated applicable civil service laws and regulations and fired them.

One of those employees, Maria Almonte, had worked for 15 years as a Bus Dispatcher even though she failed the test for that position.

The CSEA filed a grievance on behalf of those workers, arguing that under the terms of its contract the employees should be deemed tenured after one year of service and therefore entitled to be rehired to another position.

Contract Deemed Illegal

The Court of Appeals, however, ruled that contract stipulation contradicted state law. "The terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator," Judge Eugene F. Pigott Jr. wrote in the majority opinion.

The AFL-CIO also successfully lobbied the State Legislature to pass a measure entitling public employees facing disciplinary charges an independent hearing officer.

Most city public-sector employees can argue their case before and independent Administrative Law Judge. But in other smaller jurisdictions throughout the state employees often must go before the same supervisor who filed the initial charges.

"It takes away the bias and prejudice," said one union official, referring to the legislation. "It removes some of the kangaroo-ness of the kangaroo court." The bill (A6649/ S4357) was strongly supported by the CSEA, the state's largest public-employee union.

The Weingarten rights legislation was also in reaction to a recent Court of Appeals decision, which surprised and angered union officials.

Private-sector employees are covered by the NLRA, while other public-sector workers outside New York have statutes or Executive Orders covering them as well.

But the distinctions in the measures are "not mere random variations," Judge Robert S. Smith wrote for the majority. That opinion concluded that "nothing in the text of the Taylor Law suggests that a Weingarten right is given by the statute itself."

Many public-employee unions have negotiated specific provisions in their contracts granting them the right to union or legal assistance during investigatory interviews.

The Weingarten rights case law was established in 1975 by the U.S. Supreme Court. In that matter, the nation's highest court ruled in favor of a lunch-counter worker named Weingarten who was accused of stealing.

Free Lunch At 2nd Store

After bursting into tears, she explained to her boss that she had thought she was allowed to eat lunch without paying, because that was the policy at a different branch where she had recently worked. But she was denied a union rep during the interview, and was pressed to sign an incriminating statement. Her manager only later learned of the "free lunch" policy at the other location.

The U.S. Supreme Court ruled that the employer committed an unfair labor practice and based its determination on the text of the NLRA.

Public employees in New York, however, are governed by the Taylor Law which was put into effect in 1967 and predated the Weingarten decision.

"We are trying to make sure that the laws that govern public employees actually speak to the intent," Mr. Hughes said, referring to the Taylor Law. "On balance I think that we have made progress for the lives of working men and women, but we also have a long way to go."