December 14, 2021 — The PEF Executive Board endorsed New York’s senior U.S. Senator Chuck Schumer and state Comptroller Tom DiNapoli for re-election in 2022 at the board’s quarterly meeting December 9-10 in Albany. And looking ahead to the expiration of PEF’s 2019-2023 PS&T contract with the state, the members of a new contract-negotiation team were announced.
The board also approved the delegate election rules for PEF’s 2022 convention in Niagara Falls and the American Federation of Teachers delegate election rules for its July 2022 convention in Boston. In addition, the board tweaked several PEF policies and heard reports from PEF President Wayne Spence, Secretary-Treasurer Joe Donahue, and the union’s internal and external auditors, as well as various committees and PEF staff. A law firm specializing in workers’ compensation cases also addressed the board and answered questions from board members.
Contract team
PEF Vice President Darlene Williams, who chaired the team that negotiated the current PS&T contract, will also head the new team. Other team members are Scarlett Ahmed (Labor Department), Vincent Cicatello (Mental Health), Conrad Davis (Taxation and Finance), Maureen Kozakiewicz (Motor Vehicles), Region 2 Coordinator Andrew Puleo (Transportation); Jeanette Santos (Health), Cynthia Walker (SUNY), and Christopher Ford (Information Technology Services). PEF Director of Contract Administration Debra Greenberg will staff the committee.
“They will need every support you can give them,” Spence said.
The president said he will ask the Governor’s Office of Employee Relations (GOER) in April 2022 for contract negotiation dates so that the process can begin well before the current agreement expires on April 1, 2023. The PEF team will begin training next month to prepare for bargaining.
Spence further announced that in addition to the PS&T contract, PEF will go back to negotiating two separate contracts – one for members at Roswell Park Comprehensive Cancer Institute in Buffalo; and another contract for members at the NYS schools for the deaf and for the blind. The members of those bargaining teams will be appointed and announced later.
Spence said that PEF expects the state may issue retroactive longevity award payments in February, but nothing is definitive until the comptroller issues a payroll bulletin, which has not happened yet.
COVID challenges
Spence asked PEF General Counsel Ed Greene to update board members on litigation regarding various mandated COVID vaccination and testing orders that affect PEF members and their job security. Greene said a federal vaccination mandate applicable to Medicare and Medicaid funded providers, which included the Office for People with Developmental Disabilities (OPWDD) was halted by a preliminary injunction issued by federal court. He explained that the courts enjoining this vaccine mandate noted that the authority to mandate vaccination has typically been reserved to the States, under the States’ police power. The courts found that it was not within the authority of the federal agencies (CMS and OSHA) to issue public health regulations.
In response to the OPWDD mandate being enjoined, Spence immediately contacted the agency to confirm and demand that PEF members at OPWDD facilities be advised that the OPWDD had rescinded its vaccine mandate. OPWDD has subsequently rescinded its vaccination order. Since then, the courts have blocked at least two more federal mandates but, so far, State-issued mandates have survived numerous legal challenges.
Greene also advised the Executive Board on PEF’s improper practice charge in response to the Office of Mental Health (OMH) vaccine mandate without an option to test. PEF’s charge alleges that OMH unilaterally imposed its mandate without first negotiating with PEF. While the charge remains pending before the Public Employees Relations Board (PERB), PEF’s application to seek injunctive relief in the courts was denied by PERB based on its opinion that PEF was unlikely to prevail on its improper practice charge.
He further advised on recent announcements from the Department of Corrections and Community Supervision (DOCCS) that approximately 8,000 employees at that agency had failed to comply with its order to submit proof of vaccination by December 1 or submit weekly negative COVID-19 test results. While that number was subsequently greatly reduced, DOCCS has begun the process of suspending and seeking to terminate employees who have not complied with the State’s vaccinate-or-test mandate. PEF is providing field representatives and assigning attorneys to advise and represent its members at DOCCS who have not complied on their contractual and statutory rights.
PEF has advised leaders and members at DOCCS that any member threatened or issued disciplinary charges is entitled to PEF representation before accepting any disciplinary consequences or signing any settlement waiving contractual disciplinary rights. While DOCCS advised PEF representatives that other unions signed off on agreements waiving significant rights, PEF has refused to sign off on such agreements. Every PEF member facing potential termination will be offered an opportunity to discuss the terms and consequences of such agreements with a PEF attorney and advised of their right to challenge any suspension and proposed discipline before a neutral arbitrator.
“We don’t sign agreements that give away our members’ rights,” Spence said. He added that a lot of misleading rumors and misinformation are being circulated about the situation and, that “inevitably they blame PEF.”
PEF’s Office of General Counsel is currently representing approximately 220 members in vaccine mandate related disciplinary cases, in addition to its normal case load of disciplinary arbitrations. To provide some perspective, these 220 vaccine mandate cases initiated in the past two months greatly exceeds the usual average of approximately 130 cases handled by PEF in any given year. PEF Field Services is also handling hundreds of vaccine and testing related interrogations around the state, as well as numerous non-termination disciplinary cases.
PEF Director of Contract Administration Debra Greenberg reported on PEF’s response to the state mandate for all health-care workers to be vaccinated. PEF demanded the state comply with the Taylor Law requirement that changes in terms and conditions of employment be negotiated with the union. Earlier this year, PEF reached a negotiated agreement with the State University of New York, but GOER blocked it. PEF declared an impasse in those negotiations and a mediator was appointed. During the negotiations, PEF was able to get GOER to retreat from its position that it could summarily terminate PS&T members without contractual protections. In addition, agencies must permit members to register for at-home tests, download results from the vendor and upload them to the State portal, as well as use “at-home” tests during work hours and mail their samples to the testing labs through state facility mailrooms.
Spence said that approximately 80 percent of members replying to the union’s survey in October said they vaccinated. PEF is considering sending out surveys on the issue again in the future.
OT rate hikes for SUNY
PEF also reached a temporary agreement with SUNY that expires January 2. That agreement requires two SUNY hospitals to pay their nurses overtime at the rate of 2.5 times that of regular pay for any OT that would otherwise be compensated at 1.5 times their rate. That agreement only affects SUNY Stony Brook Medical Center on Long Island and Upstate University Hospital in Syracuse and SUNY Downstate. Separate agreements on the higher OT pay rates were negotiated with OCFS, OMH and OPWDD. Those agreements expire December 31, January 12 and February 23, respectively.
Other presidential updates
Spence said the union hopes to hire an affirmative action expert before the board’s next quarterly meeting in March.
The president spoke about two conferences focused on New York state issues that he attended immediately after PEF’s annual convention. He attended the SOMOS El Futuro conference November 3 in San Juan, Puerto Rico, for the first time because “I kept hearing from other union leaders and legislators that PEF was late to the table on important issues that are addressed there,” he said. “This year, Spence brought Fund Our Future materials and T-shirt to help raise the union’s visibility.
At the SOMOS conference, Spence said that state Sen. Zellnor Myrie told him he had been hospitalized with COVID at Downstate Medical Center where he received excellent care from PEF nurses and other health care staff.
Spence said he also spoke privately at SOMOS with Gov. Hochul, Senate Majority Leader Andrea Stewart-Cousins, Senator Gustavo Rivera, Assembly Speaker Carl Heastie and Attorney General Letitia James.
“We made sure Gov. Hochul heard about the need for hazardous duty pay for essential workers during the pandemic,” Spence said. “Tish James said she heard us.”
Spence also attended the New York State Public Employee Conference (PEC) the following week. He has served on the group’s board for several years, but this was his first time attending the conference. He managed to add two important PEF issues to PEC’s agenda: Hazardous duty pay; and amending “Less is More” legislation on parole and public safety. Spence brought a couple of parole officers with him to the conference and they spoke with state Sen. Diane Savino and Comptroller DiNapoli to make sure PEF’s position on the misguided legislation is clear. The legislation is intended to reduce incarceration by letting more felons out of prison on parole earlier and by restricting their re-incarceration for parole violations to only the most serious offenses.
The result is very dangerous, Spence said. “There have to be more victims before a parolee is taken off the street. That was never the policy (before now).”
PEF held rallies against “Less is More” at Rikers Island in October and outside the Hall of Justice in Rochester in November. More are planned for 2022 as the union seeks to amend the law in order to keep communities and parole officers safe and make sure parolees get the support they need to lead productive lives.
The president asked PEF Director of Civil Service Enforcement Scott DeFruscio to review the state Agency Reduction Transfer List (ARTL) process that is used to help members who are displaced by the closing of six state correctional facilities. DeFruscio said the affected members must indicate how low a grade level they would be willing to accept to stay on the state payroll, and they might have to work in a different county and/or at a different state agency.
Spence reported that PEF has made some progress in getting the state Department of Civil Service (DCS) to consider developing new exams based more on training and experience for certain entry-level permanent positions at the state Labor Department. The shift in emphasis of the exams’ subject matter should help the many long-term, hourly “provisional” employees who have been doing the work for years without ever attaining permanent status and most of the protections and benefits of the PEF contract and civil service law.
Spence said PEF’s threat to hold a rally in New York City in front of the state labor commissioner’s office building opened the door to a meeting with the commissioner and the decision to take a new look at the existing exam to see if it could be modified. So far, DOL, DCS and GOER have all signed off on the idea.
Spence reported the Service Employees International Union (one of PEF’s two parent unions) awarded PEF a grant of $25,000, which PEF will match, to help with the union’s Fund Our Future initiative. In the year ahead, the union will create a public awareness campaign to spotlight the public services PEF members provide New Yorkers and will train members as Fund Our Future ambassadors to help spread its message to lawmakers, the media and all New Yorkers.
Spence invited Director of Organizing Dan Carpenter to speak about the conversion rate of new hires entering the state’s PS&T unit. Carpenter said the rate is 4 percent higher now than it was at the previous Executive Board meeting in August. In response to a board member’s question, Spence said PEF has asked the state to report all new hires to PEF Organizing. PEF divisions should check with member engagement administrator Jessica Carpenter at JCarpenter@pef.org for the latest information about new hires.
Regarding the PEF Convention held in Niagara Falls from Oct. 24-27, Spence reported the union came in under budget for the annual event. “I was amazed. The convention ended up costing PEF $857,411, which was approximately $136,000 under the budgeted amount.”
PEF financial reports
In his Secretary-Treasurer report, Joe Donahue gave details of the union’s unaudited balances, assets and expenses at the end of September. PEF’s net balance of cash and investments was $19.5 million. The total assets were $28,969,696 and were offset by $16,614,185 in total liabilities. The state hiring freeze was still holding PEF membership levels down at the end of September. PEF’s financial position benefitted from the continuing curtailment of in-person meetings and events because of the pandemic, as well as the return on its investment portfolio.
The board approved a budget amendment shifting employee organizational leave (EOL) amounts among the PEF regions. Board members also debated, amended and approved a new PEF expense policy that combines and organizes various expense policies. They amended the proposed policy to extend the time allowed to submit expense claims from 60 days to 90 days. The most recent PEF Policy Manual can be found here.
In addition, the board debated, amended and approved a policy requiring regional coordinators to document, inventory and report on equipment purchases and items they receive from PEF Organizing or the Membership Benefits Program.
The board also heard reports from PEF’s external auditor, the Bonadio Group, which recommended the union continue to update and invest in its information technology resources and be on guard against cyber crime, and from the union’s internal auditor who is reviewing the finances of PEF divisions.
The first Executive Board meeting of 2022 will be held March 24 and 25.