Judge directs governor to abide by the contract
PEF blocks furloughs
By SHERRY HALBROOK
As virtually all PEF members know by now, the union was granted a preliminary injunction May 28 preventing the governor from forcing most state employees to take an unpaid, one-day furlough from work every week.
U.S. District Court, Northern District, Judge Lawrence Kahn also directed the governor to stop submitting emergency appropriations bills that include unpaid furloughs or exclude payment of contractually obligated salary increases.
The governor complied and the salary increases have been part of the subsequent extender bills he has submitted and passed by the Legislature.
Kahn recognized the furlough legislation Gov. David Paterson had added to an emergency budget-extender bill substantially impaired PEF’s collective-bargaining agreement with the state. The Legislature had reluctantly passed the bill to avoid a government shutdown,
The judge agreed with PEF the furloughs would cause irreparable harm to employees who would suffer a permanent 20 percent pay loss. Kahn said the employees reasonably relied on the salaries that were negotiated years earlier by PEF.
Kahn agreed with PEF the state failed to demonstrate it was reasonable and necessary to renege on the contract and, therefore, the state would be violating the contracts clause of the U.S. Constitution if it imposed the unpaid furloughs.
Senate repudiation cited
In his decision, Kahn cited a resolution introduced by state Sens. Neil Breslin, D-Albany, and Diane Savino, D-Staten Island, and passed unanimously by the Senate May 10 before it passed the budget extender authorizing the furloughs.
Kahn quoted the portion of the resolution that said: “The language in the bill requiring a one-day furlough is contrary to the laws and public policy of this state .... (and) This legislative body believes it is not reasonable or fiscally necessary to impose furloughs on unionized state employees .... (and) There are other alternatives available that can address the fiscal challenges faced by the state ....”
PEF has written to Breslin and Savino thanking them for introducing the resolution. It allowed state senators to clarify they were approving the budget extender with the furloughs only because they could not remove the furlough provision, and defeating the bill would have stopped funding for state services and forced them to shut down.
Victory for workers, public
“This is a victory for state employees and for state taxpayers,” said PEF President Kenneth Brynien. “This decision will allow state services to continue uninterrupted and prevent hardships to the taxpayers who depend on them.”
Brynien added, “We are equally pleased the court found the state has other means to address its budget deficit, as PEF has maintained all along.
“PEF has given the governor proposals to cut hundreds of millions of dollars, including cutting contract consultants, reducing overtime and reducing work place injuries. Our position has been and remains the state should be doing everything possible to reduce costs and waste before it even considers targeting the work force. If this is a crisis of a magnitude that the governor is demanding the unions reopen their contracts, he should be taking every possible action to reduce the budget deficit,” Brynien said.
PEF to state: Give up
Kahn had previously given PEF a temporary restraining order against the furloughs. Now that he has also awarded the union the preliminary injunction, the next step is for the state to present its full case for why that injunction should not be made permanent.
That is likely to be a very steep climb for the state, since Kahn has already stated: “While the (Senate) resolution may be non-binding, it is unanimous and nearly contemporaneous with the Senate’s enactment of the extender bill containing the furloughs and the wage freeze. As such, it strongly confirms what the defendant’s deficient record of consideration has already shown; namely, the challenged provisions are transparently unsupported by a basis of necessity and reasonableness.”
Kahn added that he was not saying the state could never enact measures that would impair its contractual obligations, but the state would need to prove its situation was sufficiently desperate to justify it.
“The court finds it extremely unlikely, however, that the challenged provisions (in the budget extender bill) currently before it will be upheld,” Kahn said.
“It’s in the best interest of state taxpayers for the governor to accept the court’s ruling and avoid wasting more time and money needlessly trying to break our contract,” Brynien said.