Will Let BCB Decide
Judge Clocks Union Suit on Scanners

By REUVEN BLAU

A Manhattan Supreme Court Justice Aug. 29 rejected the Civil Service Technical Guild's petition for a preliminary injunction to block the Bloomberg administration from continuing to require its members to submit to palm-scanner time-keeping devices.

DAVID BURNEY: Kept scanners in use.

Justice Carol Robinson Edmead ruled that the Board of Collective Bargaining should handle the four improper practice charges filed by Local 375 of District Council 37 against the scanner system.

Bows to BCB's Judgment

"When an administrative agency is charged with implementing and enforcing the provisions of a particular statute, the courts will generally defer to the agency's expertise and judgment regarding that statute," her 30-page decision stated.

Local 375 officials have vociferously campaigned against the scanners as an intrusion on employee privacy, although they were first utilized at the Law Department in 1995 and had since been implemented at nine other city agencies.

In February, the union hailed the Mayor's Office of Labor Relations' decision to make the program discretionary at some agencies, including at the Department of Design and Construction, where opposition to the scanners was most intense.

CLAUDE FORT: 'A shocking decision.'

DDC Commissioner David Burney stated that employees would now be permitted to log in and out of work by computer each day, using "a software change to the CityTime program." The palm-scanners will remain in place only for those who choose to use them, the memo also stated.

'A Hollow Victory'

But that victory was short-lived, as DDC continued to require the use of scanners for the next several months, according to court filings. The union also objected to the new time WebClock system, which uses software on employees' computers to record when they come and leave work.

"What had appeared at the time to be a huge victory was now hollow," Ms. Edmead's ruling said. "Union members were frustrated and disenchanted by the union's seeming inability to stop mandatory use of what many DDC employees viewed as invasive 'Big Brother' biometric scrutiny."

Tech Guild President Claude Fort vowed to appeal the decision, arguing that Justice Edmead should have either ruled in favor of the union or sent the case back to the BCB. "I think the judge went over her jurisdiction and ruled on something she wasn't supposed to," he argued. "That was a shocking decision. She was supposed to judge if this was a matter of collective bargaining."

A Law Department official said the city was "pleased" with the court decision, which he asserted will enable agencies to continue making use of the CityTime system.

'City Within Its Rights'

"While the matter now returns to the Board of Collective Bargaining for a final determination, the court's decision strongly indicates that it believed the city was within its rights to upgrade and implement this advanced timekeeping system," said William Fraenkel, a senior counsel in the department's Labor and Employment Division.

Justice Edmead concluded that CityTime was not a more-onerous reporting system than the prior paper timesheet system. "The court does not agree that the decision to implement the CityTime system was subject to collective bargaining," she added. "Moreover, the union failed to supply any facts in evidentiary form indicating that bargaining unit employees have lost confidence in the union's ability to enforce their rights."

The union also charged that because the scanners recorded time in quarter-hour increments, someone who clocked in at 9:08 would be credited with starting at 9:15, and that employees in some instances had to remain at work for more than a half-hour past the end of their shift to ensure that their work time was properly credited.

Offered No Proof

Justice Edmead, however, did not credit that argument. "The union failed to present any evidence in the form of an affidavit or otherwise from any bargaining unit employee establishing this allegation," she said.

But she acknowledged that it was undisputed that the scanner rounds up to the nearest quarter-hour when an employee reports to work after the eighth minute, resulting in a loss of pay for seven minutes of work time. The system, she continued, also rounds down when an employee leaves work after 5 p.m. "Such rounding procedures did not exist under the timesheet system, and impacts the five-minute grace period provided for in the parties' collective bargaining agreement," she said.

City officials contend that the scanner system provides a more accurate method of recording when employees come and leave work. "It prevents other employees from clocking in for an absent or late colleague," they said. "It prevents fraud and waste of the public's money. It requires employees to show up on time and leave on time."

Local 375 represents more than 6,500 city employees who work in titles such as Architect, Engineer, Construction Project Manager, and City Planner and Urban Designer.

Never Had Timeclocks

CityTime is an automated payroll and timekeeping system developed for the city by outside consultants and contractors. Before CityTime, no bargaining unit employees ever punched a timeclock at DDC, the suit stated.

Upon implementation of the new system, workers had a template made of the shape and measurements of their hands. The hand geometry was stored in the system, so that it could later register employees' arrival or departure times.

In the four pending improper practice petitions before the BCB, Local 375 contends the system is intrusive, onerous, and must be negotiated with the union before being implemented. "What we have been asking for from the very beginning is for the city to sit down and bargain with us over this because this is a change in working conditions," Mr. Fort said. "There was harm to the members and the city should have bargained over it."