The Times-Union, May 12, 2010, Wednesday

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The Times-Union (Albany, NY)

May 12, 2010, Wednesday

3 UNIONS SUE OVER FURLOUGHS

BYLINE: JIMMY VIELKIND CAPITOL BUREAU

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ALBANY--The furlough of unionized state workers is an evisceration of their contracts and "effectively revokes the essential bargained-for contractual rights" of the 100,000 workers affected, lawsuits filed Tuesday in federal court claim.

Three unions -- the Public Employees Federation, Civil Service Employees Association and United University Professions -- filed suits naming Gov. David Paterson as a plaintiff and claiming the furlough measure is a violation of their rights under the U.S. Constitution. All three suits are pending before Judge Lawrence Kahn, who could schedule oral arguments as soon as today.

The suits seek to rule Paterson's actions illegal, and also seek a temporary restraining order preventing the newly passed laws from taking effect. Legislators reluctantly approved an emergency budget extension Monday that called for one-day-a-week unpaid furloughs of unionized workers. Paterson repeated Tuesday that the measures are legal and that they necessary to save money to bridge a $9.2 billion deficit. The state has been without an overall spending plan for more than five weeks, and serious negotiations between Paterson and legislative leaders are stalled.

"The offending governmental actions serve to eviscerate the contractual relationship between the parties and effectively revokes the essential bargained-for contractual rights," the PEF suit reads. "The offending governmental and legislative action is an abuse of the state's police power."

Both the PEF and CSEA suits address the furlough measure, but also Paterson's refusal to authorize contractual raises of 4 percent that were due to take effect April 1. The suits claim that the acts violate a constitutional provision which forbids government from passing any law "impairing" the execution of any legal contract -- including labor agreements. CSEA's suit also names the Assembly and Senate as defendants, and faults the government for failing to contribute to the employee benefit fund.

The suits also allege that Paterson violated the Taylor Law, which requires bargaining with public employee unions before contractual changes can be made.

Paterson said he was "not surprised" by the suits, but insisted his legal footing is sound. The governor and his aides said they have been negotiating with the unions for months and have offered several alternatives to the furloughs, including a five-day pay lag and the opportunity to forgo the raises. Unions have, at times colorfully, rejected each proposal. A negotiated solution is not as likely while litigation is pending.

"When you keep saying no, and you keep saying nuts, they left us with absolutely no choice," Paterson said Tuesday afternoon. "Listen, I feel badly for the members of the union, but I also feel badly for the students" whose professors will be furloughed during examination periods. "I feel bad for the school districts that are losing money. I feel badly for the nursing homes, and for the encumbrances on other workers in other areas. I feel badly for the people in the private sector, but the reality is that we're all in a recession. All we were asking was for the union to take their fair share."

The governor vowed to fight the suits, which will be defended by aides to Attorney General Andrew Cuomo. Paterson previewed the defense, saying the contracts were negotiated in better times and the "intervening cause of this state being in so much recession" makes full payment impossible.

A similar claim was made by Prince George's County in Maryland, but a court there ruled in December that a furlough was inappropriate because not every financial resource was exhausted, according to Lee Adler of Cornell University's school of Industrial Labor Relations.

"In order for a state to not constitutionally impair a contractual agreement, their actions must be reasonable and necessary," Adler said. The PEF suit anticipates this point, and claims "the state knew or should have known at the time it negotiated these contracts that future budget delays, shortfalls and deficits were distinctly possible, if not likely."

Meanwhile, bickering between Paterson and the union leadership continued as employees prepared for the furlough. Paterson's top aide, Larry Schwartz, said CSEA President Danny Donohue should take a "more mature tone," noting Donohue used profanity to describe Paterson's plan and suggested he was lower than a rat. He said that the administration is working with agencies to ensure that the furloughs are implemented in an "orderly" manner, but that specific plans are not yet codified. Union leaders suggested that some agencies will opt to furlough all of their workers on the same day.

Schwartz and Paterson refused to validate a comment by Lt. Gov. Richard Ravitch, who said Tuesday that "if the furlough doesn't work I'm sure there will be layoffs."

"I would certainly have no problem with it," he said.

Reach Vielkind at 454-5081 or jvielkind@timesunion.com

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