O\u27Connell, Mary J.

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St. John's University School of Law

St. John's Law Review Volume 73 Number 3 Volume 73, Summer 1999, Number 3 Article 8 March 2012 Municipal Labor Perspectives on the Public Sector Welfare Workforce in New York City Mary J. O'Connell Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation O'Connell, Mary J. (1999) "Municipal Labor Perspectives on the Public Sector Welfare Workforce in New York City," St. John's Law Review: Vol. 73 : No. 3 , Article 8. Available at: https://scholarship.law.stjohns.edu/lawreview/vol73/iss3/8 This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. MUNICIPAL LABOR PERSPECTIVES ONTHE PUBLIC SECTOR WELFAREWORKFORCE IN NEW YORK CITYMARY J. O'CONNELL*District Council 37 ("DC 37") is the major municipal union inNew York City (the "City"). It represents approximately 120,000municipal employees.1 The majority of non-uniformed, non-pedagogical City workers are DC 37 members. This includes awide range of people, from attorneys to zoologists. DC 37 alsorepresents professional employees and several entry-level work-ers, who have entered the labor force for the first time and arefirst generation workers.The first issue is that of organizing the welfare workforce.Initially it seemed that workfare workers or Work ExperienceProgram ("WEP") participants could not organize, because theyare not "employees."2 Currently, workfare participants do nothave the rights to organize and bargain collectively, but they maylater. The New York City Office of Collective Bargaining has setsome precedent in this area, but not much.There are, however, a couple of decisions concerning therights of workfare participants to organize and bargain collec-tively. In 1981, DC 37 filed a petition concerning those who werethen called Public Work Project workers. 3 The Board, in thatcase, found that these workers were ineligible to organize andbargain collectively because they were not employees under the*Senior Assistant Counsel, DC 37 AFL-CIO; B.A., J.D., State University of New Yorkat Buffalo.I See Steven Greenhouse, Giuliani and Union Postpone Layoffs at City Hospi-tals, N.Y. TIMES, May 2, 1998, at Al; see also Steven Greenhouse, After Scandals,New Union Leaders Turn More Aggressive, N.Y. TIMES, Mar. 22, 1999, at B1.2 See New York City Collective Bargaining Law, N.Y. CITY ADMIN CODE § 12-305 (N.Y. Legal Publ'g Corp. Supp. 1998) ("Public employees shall have the right toself-organization, to form, join or assist public employee organizations, to bargaincollectively through certified employee organizations of their own choosing and shallhave the right to refrain from any or all such activities.").3 See District Council 37, No. RU-760-80 (Bd. of Certification, N.Y. City Office ofCollective Bargaining June 30, 1981).ST. JOHN'S LAW REVIEWNew York City Collective Bargaining Law.4 This conclusion wasbased on the fact that their work was not volitional.5 In otherwords, there was not the traditional employer-employee relation-ship required by the Act, because the employees were not work-ing of their own accord. The Board analogized the organizingrights of workfare workers to that of prisoners in a case decidedby the State Public Employment Relations Board.6 The presentstate of the law has its foundation in this decision.That case is distinguishable from an earlier one that was de-cided in 1974 concerning workers who were part of a separateemployment project called the Work Relief Employment Project. 7In the earlier case, welfare grants were diverted from the socialservices side of the budget and sent directly to agencies to pro-vide paid employment opportunities for workfare recipients.8This literally created a job program. There were over 9,000workers in that program,9 and they were able to organize andbargain collectively.10 This distinguishing precedent is currentlyon the books.Some unions have attempted to get workfare workers intothe bargaining unit by filing grievances under recognitionclauses in the collective bargaining agreement. Such attempts donot seem to have been successful anywhere.At any rate, workfare workers presently do not have the le-gal status to organize and bargain collectively. The discussionsthat the 1996 legislation has engendered and the initiatives byall types of labor groups do recognize that these program mem-bers are working. This might make a difference in future deci-sions.The relevant inquiry is not what you are called, and notwhether you are a workfare participant, but whether you work.4 See id., slip op. at 21.5 See id. at 17-18.6 See id. at 16-17 (discussing Prisoners' Labor Union, 5 N.Y. Pub. Emp. Rel. Bd.5-4040 (Dir. Pub. Pr. 1972), affd, 6 N.Y. Pub. Emp. Rel. Bd. 6-3033 (1973), aff'dsub nom., Prisoners' Labor Union v. Helsby, 354 N.Y.S.2d 694 (App. Div. 2d Dep't1974)).7 See District Council 37, No. RU-465-74 (Bd. of Certification, N.Y. City Office ofCollective Bargaining May 7, 1975) (holding that the statute implementing the WorkRelief Employment Program was constitutional because its participants did not ac-quire civil service status).8 See id., slip op. at 3-4.9 See id. at 17.10 See id. at 22.806 [73:805MUNICIPAL LABOR PERSPECTIVESWorkfare workers have issues that lend themselves to collectivebargaining. They are different issues, perhaps, than what havetraditionally been considered, but the collective bargaining proc-ess is flexible enough to accommodate them.The second important workfare issue concerns displacement.In this state-unlike other areas of the country-there are courtdecisions that concern displacement."' The old social serviceslaw, which was repealed when Governor Pataki signed the statereform act, provided for worker protections and contained anti-displacement language stating that workfare workers could notbe used to displace regular employees or to perform work thatwas "ordinarily and actually" performed by them.' 2 The courtsinterpreted that language to mean that an employer would haveto have the intention of replacing a regular employee with aworkfare participant in order to violate the statute. The stan-dard was very difficult to overcome. Even in a layoff situation,some of the cases brought by DC 37 years ago demonstrated thatas long as there was not an intent to replace, a public employercould utilize a workfare participant to perform the work that hadtraditionally been performed by regular employees.When New York State passed the Welfare Reform Act, it didnot reach as far as it should have to protect the regular employ-ees who might be affected by the influx of workfare workers. Theone bright spot, however, seemed to be the anti-displacementlanguage. That language is contained in section 336-c of the cur-" See, e.g., Danker v. Department of Health, 194, N.E. 857, 859 (N.Y. 1935) (de-claring that it is impermissible under section 16 of the Economy Act, ch. 178, 1934N.Y. Laws 647, 654, to abolish civil service employees' positions for the pretextualpurpose of substituting emergency relief workers); AFSCME New York Council v.City of Lackawanna, 476 N.Y.S.2d 666 (App. Div. 1984) (holding that a layoff in-volving at least 26 employees whose work is now being performed by workfare work-ers is sufficient to raise triable issues of fact regarding whether the city assignedworkfare workers to perform the work "ordinarily and actually" performed by civilemployees); Ballentine v. Sugarman, 344 N.Y.S.2d 39, 44 (Sup. Ct.) (determiningthat, at a minimum, section 164(2)(b) of the Social Service Law, N.Y. SOC. SERV.LAW § 164(2)(b) (McKinney 1992) (repealed 1997), prohibited the dismissal of "civilservice employee[s] ... to make room for.., relief recipients"), affd sub noma. Got-baum v. Lindsy, 350 N.Y.S.2d 1000 (App. Div. 1973).1 See N.Y. SOC. SERV. LAW § 164(2)(b) (McKinney 1992) (prohibiting workfareparticipants from "perform[ing] any work ordinarily and actually performed by...regular employees"), repealed by Welfare Reform Act of 1997, ch. 436, pt. B, § 147-a,1997 N.Y. Laws 1080, 1208.8071999]ST. JOHN'S LAW REVIEWrent state law 3 and is far broader than the language of the fed-eral statute. 14 It expands the laundry list of displacement actionsthat are prohibited to include not only layoffs but also infringe-ment of promotional opportunities. 15In this state workfare workers are not allowed to do work or-dinarily and actually performed by regular employees. There canbe no partial displacement and no loss of bargaining unit posi-tions on their account. This displacement language is much bet-ter. It is, however, relatively new. It has only been around sinceAugust 1997 and will be more meaningful when it has been com-prehensively applied.Utilizing workfare participants in City jobs has caused a de-cline in the City workforce in recent years, especially during thepresent administration. 16 What DC 37 has done directly con-fronts this problem.In April of 1998, there was a planned layoff for DC 37 mem-bers in Local 420, the hospital workers' local.17 These workershold titles such as dietary aide, housekeeping aide, and institu-tional aide. Their jobs do not have major high-tech skill re-quirements, or educational requirements, but these workers arethe front line workers at public hospitals. They clean the hospi-tals, assist in the care of the patients, help serve the food, andwork in the cafeteria. They do not do glamorous work in the hos-pitals, but their work is absolutely necessary if there is to be a13 See Welfare Reform Act of 1997, N.Y. SOC. SERV. LAW § 336-c(2)(e)(i)-(v)(McKinney 1998) (prohibiting a workfare participant from getting an assignmentthat would in any affect the rights of any currently employed worker).14 Personal Responsibility and Work Opportunity Reconciliation Act, 42 U.S.C. §607(f)(2) (1994 & Supp. 1997).15 See Welfare Reform Act of 1997 § 336-c(2)(e)(ii) (prohibiting "the employ-ment.., of a participant... when any other person is on layoff from the same orany equivalent position"); id. § 336-c(2)(e)(iii) (prohibiting "any infringement of thepromotional opportunities of any current employed person").16 See Steven Greenhouse, Many Participants in Workfare Take the Place of CityWorkers, N.Y. TIMES, Apr. 13, 1998, at Al ("ITihe 34,100 people in the city's WorkExperience Program constitute a low-cost labor force that does a substantial amountof the work that had been done by municipal employees before Mayor Rudolph W.Giuiani reduced the city payroll by about 20,000 employees, or about 10 percent.");see also David Rohde, City Hospital Workers Sue Over Layoffs, N.Y. TIMES, Apr. 18,1998, at B2 (reporting that District Council 37 "filed a lawsuit in State SupremeCourt... accusing the city of laying off union members at city-run hospitals and il-legally replacing them with workfare participants").17 See Ian Fisher, 600 Laid Off in Hospitals as Deal Fails, N.Y. TIMES, May 19,1998, at 1; Dan Janison, Workfare Railed as Slavery, NEWSDAY, Apr. 20, 1998, atA8.[73:805MUNICIPAL LABOR PERSPECTIVESviable public hospital system. There were 649 of these workersscheduled for layoff on Friday, May 1, 1998.18 At the same time,approximately 900 WEP participants were working in the publichospitals, a number of which had layoffs.19DC 37 filed an order to show cause, which alleged violationsof the new anti-displacement language in the social services law.DC 37 argued that not only was there a layoff situation, but peo-ple would be losing their jobs to workfare participants. The citycould not utilize workfare participants to do work that should beperformed by regular employees in a layoff situation. DC 37 alsoclaimed a loss of bargaining unit positions, because the numberof regular jobs has decreased substantially in the past few years.On April 23, 1998, the City announced that every workfareparticipant had been removed from the public hospitals andclaimed the case was moot. This may be recognition by the Citythat it cannot cavalierly use the workforce in this manner. TheCity simply cannot have workfare participants working in a loca-tion where people are going to be laid off.The question is what is going to happen next? Because ofthe way the workfare program has been exploited in the City, thehospital workers' problem is a situation that could easily be re-peated. Perhaps when the layoffs are forgotten, workfare par-ticipants will be put in. This issue is not moot in a legal sense.This is the first time this law has been so directly chal-lenged. The last thing the City probably wants is a decision onthe merits of the case, which is probably why they took the pre-ventive action they did.There are a couple of other issues DC 37 is concerned aboutas a union of organized labor. One of them is the issue of the pri-vatization of eligibility checking. DC 37 represents a title called"eligibility specialist." These are the people that work in the wel-18 See Frank Lombardi, After City Hosp Deal Erodes, Lay-Offs for 600, DAILYNEWS (New York), May 17, 1998, at 6 (reporting that more than 600 hospital work-ers were scheduled to be laid off the following day because of the inability of MayorRudolph Giuliani and labor officials to reach a compromise).19 See Michael Finnegan, Union Sues vs. Hosp-Aide Lay-Offs, DAILY NEWS (NewYork), Apr. 18, 1998, at 3 ("The city has assigned about 850 Work Experience Pro-gram participants to clean, prepare food and perform other tasks... previously...done by civil servants."); see also Ian Fisher, Court Allows Hospital Layoffs, ButDoesn't Settle Workfare Issue, N.Y. TIMES, Apr. 28, 1998, at B7 (reporting DistrictCouncil 37's allegations that the city planned to replace 905 laid off hospital workerswith workfare workers).1999]ST. JOHN'S LAW REVIEWfare centers and determine the eligibility of individuals for bene-fits, for food stamps, and for Medicaid. DC 37 has a substantialnumber of members who perform that function.Prior to the Personal Responsibility and Work OpportunityReconciliation Act of 1996,20 federal law had provided that any-one who worked in this area and made the eligibility determina-tion had to be selected based on a merit system.21 That meritsystem had always been interpreted to be the civil service sys-tem. Thus, civil service employees would perform the eligibilitydeterminations. The Welfare Reform Act revoked that require-ment, and the question became who can do the eligibility deter-mination?There was great concern in the American Federation ofState, County and Municipal Employees and other national un-ions whose members performed this function that private com-panies would be very interested in getting into the market forperforming eligibility determinations. Companies have statedthey are interested in assuming this function for the government.Certain jurisdictions, most notably Texas, have attempted to pri-vatize all of their benefit eligibility determinations. It wanted tohave a private company determine whether someone is only eli-gible for benefits or also for food stamps and Medicaid. Texasapplied for a waiver to allow it to contract out all eligibility de-terminations for all federal benefits. The federal governmentrejected that waiver, which is good news. It makes sense that ifa public employer cannot contract out all of its eligibility deter-minations, it is not going to necessarily want to contract out someof them.In New York State and New York City, legislation passed onboth the state and local level concerning the privatization offunctions like eligibility determination. In the social serviceslaw, there are specific provisions concerning privatization of eli-gibility determinations. 22 Also under Local Law 35, a New YorkCity law, the City is required to engage in an administrative pro-cess prior to contracting out work that may have displaced city20 Pub. L. 104-193, 110 Stat. 2105.21 See 42 U.S.C. § 602(a)(5) (1994) (amended 1996).22 See N.Y. SOC. SERV. LAW § 20-c (McKinney 1996 & Supp. 1999).[73:805810MUNICIPAL LABOR PERSPECTIVESworkers. 23 This law is another method by which privatizationcan be opposed.DC 37 is also concerned about workplace violence. It has notreceived sufficient attention. It is usually not until somethingtragic happens that people focus on this issue. There is concern,as the welfare system changes and people either lose benefits orare taken off cash assistance and put on voucher assistance, thatthere may be an increase in violent incidents in the workplace.DC 37 wants to enable its workers to address more effectively theissues that will arise as a result of the integration of a welfareworkforce.Finally, job supply is an important issue. Work is certainly anoble and positive thing, but unfortunately there is severe un-employment in the City.24 DC 37 submitted affidavits to thecourts in the Hospital Workers case discussed above to demon-strate that fact. The affidavits were from people that had beenon welfare for a number of years or months and who were finallyable to get a job at a city hospital that had benefits and paid adecent wage. Now they were being given pink slips. They feltthat they had kept their end of the bargain in getting a job andwere then being laid off.In all of this, the basic problem is that there can be all theworkfare in the world, but if there are not enough decent jobs,there simply is not much else to do. Those are the union's issues,in a nutshell. They are also your issues, and the issues of every-one in the nation concerned about social justice.23 See N.Y. CITY CHARTER § 312 (N.Y. Legal Publ'g Corp. 1990 & Supp. 1998)(outlining City's procurement procedure), amended by N.Y. CITY LOCAL LAW No. 35§ 1 (1994) (stating that "[slound procurement practice requires an assessment by theagency of the costs and benefits of providing a service in-house prior to any determi-nation to solicit bids or proposals").2 See Sylvia Nasar, January Gain in Jobs Doubled the Forecast, N.Y. TIMES,Feb. 6, 1999, at C1 (reporting that the unemployment rate in New York City is oneof the highest among large cities in the United States).19991ST. JOHN'S LAW REVIEW

Municipal Labor Perspectives on the Public Sector Welfare Workforce in New York City

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Municipal Labor Perspectives on the Public Sector Welfare Workforce in New York City

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