Industries with growing union membership

Labor unions have a long history in public works and trades. Typically unions are made up of police officers, fire fighters, sanitation, electricians, construction workers, the health industry, and the like. However, recently there are a variety of industries with employees voting to unionize. Their reasons for voting to unionize are all unique to the industry, but nonetheless highlight the fact that employees want to change their work environment.

Airline crews:

Earlier this month, over half of JetBlue’s 5,000 flight attendants voted to unionize. They are now part of a union that is near and dear to New York’s heart, the Transport Workers Union. This is the second union to be brought in to JetBlue since its first union in 2014, the Air Line Pilots Association.

An article on Bloomberg.com sited job security from mergers as one of the reasons the flight attendants had voted to unionize, as well as having a voice in lobbying matters in the aviation industry. TWU President John Samuelsen said of the vote, “This historic victory is yet another example of the tide turning in America as workers continue to lock arms and fight back to defend their livelihoods,” according to Forbes.

JetBlue is following suit with one of countries most heavily unionized industries, with some airlines having more than 4 unions supporting their employees.

Education:

Student workers, usually holding the title of Adjunct Professor or Research Assistant, have a long history of trying to unionize in private institutions. After taking on the lion’s share of research work and instruction, they are typically left with low wages, heavy overtime and a lack of job security.

Harvard students recently voted to unionize and won the right to bargain with the school. According to the prestigious college’s website, this is the first time in the history of Harvard that the students will have a union. Harvard’s decision to negotiate with graduate student workers is out of step with other ivy league colleges, such as Yale and Columbia, who have refused to do so when their students vote to unionize. The union, HGU, is represented by the United Automobile Workers and is now the HGU-UAW.

Journalists/Freelance Writers:

Several online media publications have voted become members of the Writers Guild of America East. Employees from Thrillist, Vox, Vice, and MTV News make up just a number of the roughly 5,000 union members that WGAE represents. Unique to an industry based in the arts, unionizing also means the protection of the work they generate for the publications-for example, the recent settling of a 17-year-old- class action lawsuit claiming copyright infringement brought forth by 3,000 journalists. Similar to the airline industry, mergers and acquisitions that could put freelance positions at risk are also a reason employees are voted to unionize. Most recently, 85% of employees from the Chicago Tribune have voted to unionize. This is still pending approval from parent company, Tronc according to an article on Politico posted in late April.

For-Hire Transportation:

Not unlike their yellow, green, and livery forefathers, for-hire transportation services have begun to unionize. With the ease of a mobile app, Uber and Lyft created quick income for the drivers and quick transportation for the users. After feeling abused under the employment status of independent contractors, the Independent Drivers Guild was formed for (and by) app-based and for-hire drivers. These were the same drivers initially protected by the IAMAW District 15.

New 3rd Department Case Changes the Way We Analyze 3/4’s Cases

 

An important message on behalf of our firm from two of our partners, Ed McIntyre and Sean Riordan:

New 3rd Department Case Changes the Way We Analyze 3/4’s Cases

___________________________________________________________________________________________________________________________________________

Dear Friends,

On Thursday April 26th, the Appellate Division, 3rd Department issued an very important decision regarding Police ¾’s claims. The determination has far reaching implications for those permanently injured in the line-of-duty. I hope you will share this information with your memberships as it only adds to the importance of their initial “Injured Employee Paperwork.”

The case, Stancarone v. DiNapoli, is the Appellate Division’s response to the Court of Appeals’ February decision in Kelly v. DiNapoli. For those not familiar with the Kelly case, the Court of Appeals found that a Police Officer, injured when a ceiling rafter collapsed upon him while he was attempting to rescue a family during a hurricane, was not entitled to a ¾’s pension. The ruling, and in a biting dissent, pointed out that the courts have been extremely inconsistent in their ¾’s determinations, specifically pointing to the varying determinations on what is, and is not, an “accident.”

The 3rd Department, who has jurisdiction over Article 78 Appeals emanating from the N.Y.S. Retirement System, acknowledged at the outset “that the standard to qualify for accidental disability retirement benefits has not always been clearly stated, with part of the confusion stemming from the use of imprecise and differing language in prior cases.” While the standard definition of “accident”, “a sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact” is not changed under the 3rd Department’s decision in Stancarone, the 3rd Department set out a new way of analyzing these cases which will have lasting importance.

The first major change announced by Stancarone is a recognition of the Kelly decision’s statement that “requiring a petitioner to demonstrate that a condition was not readily observable in order to demonstrate an “accident” is inconsistent with case law.” The Court does away with the “readily observable” standard. In short, this directly impacts those “trip and fall” cases that have traditionally been held non-accidental when the officer could not show that the hazard they tripped and fell on was not “readily observable” and therefore could have been avoided. For example, an officer who slipped and fell on a staircase due to a juice box left on the stairs was denied his ¾’s because the judge found that the juice box was “readily observable” and therefore the officer slipping on it was his own “misstep” and not an “accident” for ¾’s purposes. Under Stancarone, the analysis of this hypothetical case is now different. Under Stancarone, the officer’s “inattention” to the juice box which caused his fall cannot be used as the reason he is denied a ¾’s pension. Even if the condition that caused the fall is readily observable, if it was not seen prior to the injury the event leading to the injury can be deemed an “accident” qualifying for ¾’s. The effective elimination of the “readily observable” standard should enable a much fairer analysis of what constitutes an “accident” and bring it more in-line with the “common sense definition of accident” as the Court of Appeals envisioned when it defined “accident” in 1982 in the case Lichtenstein v. Board of Trustees of Police Pension Fund of City of New York.

The second major analysis change announced in Stancarone is that the Retirement System must have a “specific information” in the evidentiary record that “a person in the petitioner’s position and location” could have reasonably anticipated the hazard which caused their injury. This finding goes to the “unexpected” nature of the event. For many years the Retirement System has denied ¾’s cases on the basis that an officer could have “reasonably anticipated” the hazard which caused their injury. As an example, the Court points to an officer who is injured due to a slip and fall on a slippery substance in a roadway. The Court stated unequivocally that “a blanket argument, such as “sometimes slippery surfaces exist in public roadways” is, alone, not enough to support a conclusion that the petitioner should have expected or reasonably anticipated the spot on which he or she slipped.” The court stated that a finding that the condition which caused the injury was “reasonably anticipated” must be supported by the “substantial evidence of record.”

The importance of this second change cannot be understated. Far too often an officer has been denied ¾’s because a Hearing Officer has issued a determination that the hazard presented was “reasonably anticipated” based on nothing but general conjecture and speculation. The Court now demands that the Retirement System analyze the micro-factors of the specific officer, the specific location and position of the officer at the time of the injury and explain why the hazard could have been reasonably anticipated by the individual officer.

As noted above, the Stancarone decision only adds to the importance of an officer’s initial injury paperwork. “Contemporaneous documentation” is still considered the most relevant, and accurate, description of the accident so getting it right remains the highest priority. Officer’s should take care to explain, where possible, such factors as:

 

where their attention was when they were Injured –  (i.e. “while searching for a suspect”);

Lighting conditions –  (i.e. “while searching for a suspect in a dimly lit back yard”);

Their familiarity with the area-  (i.e. “while searching for a suspect in dimly lit backyard that I have never previously been in before”); the specific hazard (i.e. “while searching for a suspect in a dimly lit backyard that I have never been in before I tripped and fell due to a large tree branch.”);

A statement about the surrounding area –  (i.e. “While searching for a suspect in a dimly lit backyard that I have never previously been in before I tripped and fell due to a large tree branch. I had not encountered any previous tree branches or other footing hazards in the backyard prior to my fall).

-Of course, all injuries are unique, and any other factors which may be relevant to why the officer could not have reasonably anticipated the hazard should be presented.

Understanding that many officers speed through the initial paperwork because they are 1) in pain and 2) very rarely believe that their injuries are career ending, I urge union officials and delegates to reach out to me (646-831-6229) or Ed McIntyre (631-921-5499) at any time to ensure that an officer highlights the important factors surrounding his/her injury.

Below, you will find a copy of the Stancarone decision.

http://decisions.courts.state.ny.us/ad3/Decisions/2018/523755.pdf

Be well and stay safe.

Attorney Advertising.

Legislative bills to cushion potential Janus ruling

The 2019 NYS Fiscal Budget was completed two days before its April 1st deadline. While $1 million was allocated to investigate wage theft, new legislation introduced into the budget to soften the blow that the Supreme Court case Janus vs. AFSCME ruling could have.

The budget that was allocated to investigate wage theft is part of a larger goal to return nearly $40 million to individuals who fell prey to poor business practices in in the past two years. The money is meant to expand the DOL’s investigatory staff, according to the Governors website.

The bill meant to act as a safeguard for the potential Janus ruling will narrow some services offered by unions to dues-paying members only. According to an article posted on The Chief Leader, the bill limits representation in arbitration and grievance hearings to union members, and will not be covered under fair-share fees. Originally, these services were covered under fair-share dues-the issue at the heart of Janus. “The lead plaintiff in the case before the high court, Janus v. AFSCME, has contended that because public-employee unions are dealing with government employers, all their activities are political in nature, including wage negotiations and matters involving working conditions.”, noted the article on The Chief Leader, linked below.

About a week after that, Cuomo signed another bill to help New York’s unions. The secondary bill, signed on the 12th, provides incentives rather than budget protection like the legislation signed into the 2019 budget. The perks, according to amNY, require unions to protect member’s benefits during leave, allow members to pay dues electronically, allows a 30-day window for public employees to notify their union of the position they’ve been hired to and to sign up for membership. It also makes all union benefits immediately effective at time of hire. Many union officials, namely leaders from UFT as well as the president of AFL-CIO, came out in support of the bill when it was signed.

Governor Cuomo Announces More Than $35 Million in Stolen Wages Returned to Workers in 2017

Cuomo Bill-Signing Gives Unions Help Keeping Members After Court Ruling

Cuomo backs union benefits bill, pledges to ‘stand up’ to Trump administration

New law gives boost to public-sector unions facing Janus threat

Closing Rikers Island would be at the expense of CO, Borough, inmate safety

One of Rikers Islands nine correctional facilities will close this summer, beginning with the George Motchan Detention Center (GMDC). In a statement from our partner, Sean Riordan, Esq., “In the Mayor’s continual attempt to close Rikers Island he has announced the pending closure of GMDC. This closure can only be viewed as creating a greater risk to the personal safety of Correction Officers throughout Rikers Island. As attacks on officers have risen drastically in 2017, further crowding of existing facilities will create untold dangers for officers in 2018 and beyond. ‘The “re-thinking’ of the city’s jail system should not be done at the expense of officer safety.”

There are more than a couple of reasons why closing the Correction Facility would not do corrections officers, inmates, or the Boroughs any good:

1) Several Borough officials and waves of community members have come out in opposition against jails being built in the boroughs. An article linked below in The Queens Gazette notes that there was potential for a new jail that would be built within proximity to several schools in the Bronx.

2) With the expanse of over 400 acres and 9 buildings that is Rikers Island, many are saying that the proposed replacement buildings in the Boroughs could not house anywhere close to the reduction goal of 5,000 inmates. An alternative is to renovate the facilities. These same renovations were cited as reasons to close the jails, as proposed in the past by NYS Chief Justice Jonathan Lippman.

3) Downsizing has already been positively correlated to spikes in violence, according to statistics from 2017. This has to lead one to ask, what would even further downsizing do?

In the article on qgazzete.com, “Former New York State Chief Justice Jonathan Lippman led a study performed by the Independent Commission on New York City Criminal Justice and Incarceration Reform Commissioners that determined the reasons for closing Rikers Island are as follows: dilapidated buildings; lack of visitor access to the facility for inmates’ family members; significant time and resources needed to ferry individuals to and from the courts; and the lack of private, safe spaces to provide detainees with effective on-site programming.” These are all things that could take place without the displacement of inmates and Corrections Officers and the raising of new jails throughout boroughs.

With the staggering budget needed to rehouse inmates and rebuild new jails, renovations could take place, as Queens Councilmen Bob Holden suggested after a tour of Rikers according to the Queens Gazette. As cited on QNS.com, “…the combined capacity of the borough jails is estimated to be 2,300, so Holden believes the nearly $11 billion cost of renovating and expanding them would be too high.” That combined capacity is less than half of the Mayor’s reduction goal. Keeping that same budget within Rikers Island to update it would be a significantly more productive, and by all accounts safer, allocation of money and time.

An article on NY Post notes that most recently, Mayor de Blasio is suing Governor Cuomo over an order that forces an expedited closure of the Robert N. Donovan Detention Center (RNDC). Housing primarily teenagers, closing RNDC could displace them into facilities with adults, removing them from classroom settings within the RNDC. These same programs have had a proven, positive effect on inmates. Shortly after that information was released, another CO was slashed in the face; this comes just a few weeks after the orchestrated attack on Officer Jean Souffrant.

Links

NYC to Close One Jail on Rikers Island This Summer

First Rikers Island jail to close in summer as part of city’s 10-year plan to shut down the complex

Rikers Island Shutdown Meeting Draws Large Crowd

‘There are no advantages’ to closing Rikers Island, two Queens officials say at prison panel

De Blasio sues to block Cuomo from closing Rikers facility

Correction officer slashed by inmate at Rikers hours after public hearing about violence against employees

FDNY EMS Gears Up, Private Ambulances Scale Down

Our citys’ FDNY saw this coming from miles away, according to the Chief Leader article linked below:

“It was back during the Giuliani administration that the city opened the door for the private carriers. Mayor Rudy Giuliani also took the Emergency Medical Service function away from the City’s Health + Hospitals and merged it with the FDNY.”

“In the years since Mr. Giuliani opened the door to the city relying on private carriers for 911 emergency medical calls, the leadership of DC 37’s Local 2507 and Local 3621, which represent the FDNY EMS workforce, has warned the City Council that such a reliance could create a sudden gap in coverage if a private carrier in the 911 network went bankrupt.”

After private ambulance provider TransCare went bankrupt in February 2016, the de Blasio administration recently approved funding for two extra ambulances and a team of 15 extra EMT’s, as well as two EMS pilot programs to be launched in the coming months. In an article on PIX 11, TransCare will be pulling nearly 30 ambulances off the streets of Manhattan and The Bronx, leaving over 81 shifts vacant. As the private provider was responding to less and less calls, leading to a 10% decrease in a one-year span, this didn’t come as a surprise to FDNY officials.

This comes in the wake of the FDNY’s gator utility vehicles-small, nimble vehicles implemented to lower response times to medical emergencies in high-traffic areas, like Times Square. Where larger ambulances couldn’t fit, the gator utility vehicles did and had all the necessary equipment for medical emergencies. In a continued effort to innovate and improve response times, particularly in The Bronx, the FDNY will deploy “fly cars” in the area. These will be support SUV’s to lead ambulances with a paramedic on board for emergencies in The Bronx.

Links

FDNY prepared to pick up slack after private ambulance company files for bankruptcy

Private Ambulances Disappear, So 911 Calls Fall to EMS

Fire Department Finds a Way Around Times Square Traffic for Medical Emergencies

City Hall, FDNY in Talks Over Ambulances

Construction Industry needs Scaffold Law

Changes to the Scaffold Law have been at the crux of recent discussions in the construction industry. In New York, 2016 and 2015 were statistically the deadliest years for construction workers-dozens of articles recording deaths due to improper equipment were published. In late 2017, two workers fell to their deaths during the same day on separate projects in the city.

Many businesses are citing unnecessary regulations on businesses, higher insurance costs for businesses, and higher taxes as reasons not to proceed with the updates to the Scaffold Law. However, an article recently published stated that this was one of a number of myths surrounding the Scaffold Law. One of the most damning points listed is that most people don’t actually know what construction insurance premiums look like. In the article linked above, Harry Bronson from the New York State Assembly simply puts:

“Third, the facts about insurance premiums. We don’t have them because insurers won’t disclose them. Insurance companies are in the business of risk analysis based on data. Policy decisions should be made based on data. It is disturbing that insurance carriers refuse to disclose the truth about construction liability insurance premiums. Indeed, if the Scaffold Safety Law were legitimately a financial burden, then one would think that insurers would be eager to validate their position and put the information forward.”

While some are squabbling about red tape, costs, and taxes, NYCOSH published a report called The Deadly Skyline. The report appropriately starts with an in Memoriam section for those who were killed due to falls at sites, listing names, ages and locations. The youngest on the list was 19. One would think even those opposing the bill can agree, worker safety is priceless. The precursor to this was when a number of NYCOSH reports related construction injuries and fatalities to union or non-union work sites. These NYCOSH reports showed a greater likelihood to get injured on a non-union project, and that Latino workers’ had a greater likelihood for wage theft and of dying on a work site.

NYCOSH puts forth a number of suggestions as additions to the Scaffold Law in the report:

“In response to the health and safety crisis facing New York’s construction workers, NYCOSH has a series of recommendations. NYCOSH continues its call to protect the Scaffold Safety Law, which grants injured construction workers who fall on the job the right to sue an employer who puts their life in danger. NYCOSH is also calling for new legislation to increase penalties for companies that willingly violate the law and cause a worker fatality, and to revoke the licenses of criminal contractors who were convicted of felonies in the case of a worker death. Finally, NYCOSH recommends increased training for workers, like apprenticeship programs on large construction projects, OSHA 10s on all construction sites, and licensing for elevator construction workers.”

There is no report that could be made that would invalidate the need to not only uphold the Scaffold Law, but to also add NYCOSH’s suggestions to the legislation. When the safety and lives of workers are at risk, businesses should do what they can to protect them. This includes longer training, safer work sites, and generally better employer practices amongst the construction industry.

Links

Letter: NY Scaffold Law protects construction workers

OUR VIEW: Scaffold Law hurts businesses in New York

Misinformation muddies discussion about Scaffold Safety Law

Deadly Skyline: An Annual Report on Construction Fatalities in New York State

City Council can protect NYC workers from construction accidents by mandating better training

NYC official urges city to classify construction site accidents as union or nonunion

EXCLUSIVE: NYC urged to release info on construction accidents to show whether union jobs are safer

FDNY opposes plan to remodel WTC Health Program

The FDNY has come out in opposition to a new plan that would remodel the WTC Health Program, a detail hidden in the upcoming Federal Budget for 2019. As it stands, the WTC Health Program is a part of the National Institute of Occupational Safety and Health, which is a part of the Center for Disease Control.

“The budget carves NIOSH out of the CDC and places it within the National Institutes of Health, but leaves the WTC Health Program within the CDC. But NIOSH and the WTC Health Program share many employees — and those workers would move with NIOSH, critics of the plan say.”, notes an article written on Firehouse.com, linked below.

It would remove a health program made for those who worked during a national emergency from an institution that specializes in occupational health. The statistic for denied disability claims is staggering, and the need for the stability of these kind of benefits goes without saying. According to the CDC, the age bracket effected with the highest rate of enrollment in this program were first responders between 45 and 64-or, to put it more clearly, those closest to retirement who are already in need of benefits. There has already been a greatly documented history of first responders having difficulty obtaining disability benefits from the City Retirement System. Restructuring this program would only exacerbate the problems that already exist.

According to an article posted about this same change on The Chief Leader, not only would this budget change be “inconsistent with the legislation mandated by the Zadroga 9/11 Health and Compensation Act of 2015”, but it is also regarded as a “blueprint for radically squeezing domestic spending on safety-net programs and things like occupational health.”

The shifting of leadership and resources would drastically change the way that those protected under this health program receive medical benefits, and what medical care they would receive as well.

FDNY Union Blasts Trump Budget for WTC Health Proposal

Predict Problems for First-Responders

Jon Stewart, lawmakers slam Mulvaney proposal on 9/11 health program

Why we need to Protect our unions from Janus

A Supreme Court case with a 40-year precedent has been brought back to the future. On February 26th, the Supreme Court began hearings on Janus vs. AFSCME and the constitutionality of compulsory Fair Share fees. These fees are paid by non-union employees who work in unionized jobs but are still represented by the union during contract negotiations and collective bargaining. The 1977 precursor to this, Abood vs. Detroit Board of Education, determined that fees by non-union members could not be used for political purposes. Janus’ response to this is that unions are inherently political due to the activities of negotiating, bargaining, and the general goings-on that give union employees a voice in their workplace. Many expect the case to have a verdict by June. On top of that similar cases in the past have shown an unfavorable pattern for unions, noted in an article on USA Today:

“The court has ruled 7-2, 5-4 and 4-4 on three similar cases in the past six years, eating away at that 1977 decision without overruling it entirely. In 2016, Justice Antonin Scalia’s death a month after oral argument denied conservatives their fifth vote — a vote Justice Neil Gorsuch is widely expected to provide.”

While opponents of the law are citing free speech as the main issue at hand, those supporting the law are drawing on the fact that many of the opponents are those who want to see a complete deregulation of business and workers rights.

New York is the most unionized state in the U.S., with hundreds of unions representing thousands of those who make our lives livable. Roughly 70% of public employees in New York belong to a union. Firefighters, police officers, correction officers, nurses, bus drivers, train operators, engineers, sanitation workers-the list is virtually endless. According to an article written in New York Times, 27% of federal employees belong to a union. On February 24th, dubbed Working Peoples Day of Action, two of New York’s leaders and thousands of union members protested and made their position clear-they will not stand to have Janus overturned.

Many unions are saying that overturning Janus would pull funding away from the very things that make unions so important. Union’s provide the opportunity for each employee to have their voice heard, and heard loud. The expected decision of this would hinder the chance for employees to have a say in their work place, their administration, wages, and more. They provide the opportunity for a say in pensions, health care-things that are imperative to the families of union employees. Dismantling the financial structure of such an important force would be detrimental to union employees, union families, and the city and state systems that unions work for.

Links

Cuomo, de Blasio rally with unions over pending court ruling

Massive Labor-Rights Rally Set for Feb. 24

Supreme Court may deal major blow to labor unions

Federal Unions Show How to Survive Even Without Agency Fees

A Supreme Court Showdown Could Shrink Unions’ Power

Mayor to close GMDC at Rikers

NYC to Close One Jail on Rikers Island This Summer

First Rikers Island jail to close in summer as part of city’s 10-year plan to shut down the complex

Mayor de Blasio’s plan to close Rikers Island will break ground this summer at the George Motchan Detention Center. Officials working with Mayor said GMDC was chosen as the first due to structural reasons.

The Rikers Island jail population takes up the lion’s share of the citywide jail population-roughly 7,000 to the city’s almost 9,000. The Mayor had little to say about how a large spike in violence in 2017 ran concurrent to the downsizing. Closing the jail would create astronomical problems for inmates and CO’s alike, and already has.

In a statement from our partner, Sean Riordan, Esq., “In the Mayor’s continual attempt to close Rikers Island he has announced the pending closure of GMDC. This closure can only be viewed as creating a greater risk to the personal safety of Correction Officers throughout Rikers Island. As attacks on officers have risen drastically in 2017, further crowding of existing facilities will create untold dangers for officers in 2018 and beyond. The “re-thinking” of the city’s jail system should not be done at the expense of officer safety.”

“With vicious assaults on correction officers occurring nearly every week, along with a near 30% increase in inmate-on-inmate slashings and stabbings department-wide, we had hoped Mayor de Blasio would have announced a plan today to make the jails safer,” said Correction Officers’ Benevolent Association President Elias Husamudeen.”, quoted from NY Daily News.

NYCERS: Why are more WTC Claims being denied than approved?

A number of news publications in New York have released articles begging the same question: Why isn’t NYCERS doing more for workers who were involved in 9/11 rescue, recovery, and clean-up operations?

The links below aren’t the first of the articles. It goes without saying that one article written about this is one too many. They all come to the same conclusion, stating that NYCERS isn’t doing enough to look at, or even consider, 9/11 Disability cases. Statistically, more of these claims are being denied than approved-that is if claims are looked at in any reasonable amount of time. Workers affected in the Battery Park neighborhood were given the right in November to sue the Battery Park City Authority for not working faster with their claims. No one should have to sue their city to be able to receive benefits for working under such tragic conditions. One FDNY EMT’s claim was denied twice, written about in an article linked below. An article written by The Chief Leader described a “lack of coordination” between NYCERS and the Victims Compensation Fund.

These are six articles from 3 different publications, all ending with the same answer: There is no rhyme or reason why more isn’t being done for those who have sustained 9/11-related illnesses.

Labor Department denies ex-OSHA inspector workers’ compensation as other agencies accept his 9/11 illness

NYCERS, WTC Disability Advocates Meet About Improving Responsiveness

Stop stalling on WTC sick: U.S. Labor Department and NYCERS are failing 9/11 victims

City is denying 9/11 first responders disability pensions

WTC Health Program Doctor Concerned About Benefit Denials

9/11 Cleanup Workers Can Sue Over Health Claims, Court Rules