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Post by Tom on Jun 27, 2012 20:51:25 GMT -5
We can strike if you want to lose 2 day's pay for everyday you are out.
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Post by NYS Techie on Jun 27, 2012 20:53:10 GMT -5
If it has the same effect, what's the difference?
Nobody has been hired in a LONG time, and most of us are wrapping up our last steps. Eventually the steps issue won't affect anyone thanks to the long-term hiring freeze.
If they repeal Triborough, but a judge affirms the Triborough Doctrine, what exactly has changed?
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Post by weekendgirl on Jun 27, 2012 20:57:54 GMT -5
I will have to admit Darth that I am looking forward to your paper, because the more I think I understand Triborough, the more confused I become!
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Post by Darth Stateworker on Jun 27, 2012 20:58:43 GMT -5
If it has the same effect, what's the difference? Nobody has been hired in a LONG time, and most of us are wrapping up our last steps. Eventually the steps issue won't affect anyone thanks to the long-term hiring freeze. If they repeal Triborough, but a judge affirms the Triborough Doctrine, what exactly has changed? Ah ha! That's where the confusion lies! The doctrine and the amendment don't have the exact same effects, like I illustrated previously with my comments about NYSCOPBA. For example - NYSCOPBA just went 9 years without a contract: Under the Triborough AMENDMENT, the members still continued to receive their steps until they reached top of grade. Under the Triborough DOCTRINE, the state could have withheld steps for the entire time they were without a contract if it chose to do so, and it would have been perfectly legal. THIS is the key reason why people like EJ McMoron have such a hard-on to get rid of the Triborough amendment - because it would then allow them to start fucking up steps.
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Post by Darth Stateworker on Jun 27, 2012 20:59:40 GMT -5
I will have to admit Darth that I am looking forward to your paper, because the more I think I understand Triborough, the more confused I become! Once you get the gist of it, it's actually quite simple.
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Post by Darth Stateworker on Jun 27, 2012 21:00:30 GMT -5
We can strike if you want to lose 2 day's pay for everyday you are out. That's not the point Tom.
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Post by NYS Techie on Jun 27, 2012 21:11:22 GMT -5
So, sue to eliminate steps entirely, and bring everyone to the job rate.
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Post by Darth Stateworker on Jun 27, 2012 21:19:15 GMT -5
So, sue to eliminate steps entirely, and bring everyone to the job rate. It's doubtful that would work. While a court previously said steps are not "negotiated" (hence the difference in treatment between the doctrine and the amendment), in a case trying to get everyone to the job rate, the argument the state would make is that it's part of collective bargaining, and we should deal with it at the table. And you know courts - they're crazy. They'd most likely accept the argument, even though it runs counter to the OTHER case and the argument made in it. At the same time, we *could* re-argue the finding that says that steps are not "negotiated" and therefore, not subject to the doctrine. Would be be successful in re-arguing it before a higher court? Maybe. However, it's better to deal with this now and not rely on the courts. Courts don't always find things in your favor, yanno?
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Post by NYS Techie on Jun 30, 2012 17:05:30 GMT -5
Perhaps you could argue that the steps were a condition of your employment, and by removing the steps the state is unilaterally altering the terms of your employment, which is a PERB violation.
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Post by Darth Stateworker on Jul 1, 2012 13:25:21 GMT -5
Perhaps you could argue that the steps were a condition of your employment, and by removing the steps the state is unilaterally altering the terms of your employment, which is a PERB violation. Yes, like I said above, the original case that determined that steps were not a "negotiated" benefit (and therefore, not protected by the doctrine) could be re-argued and appealed to a higher court. However, as I said earlier, I would rather work to keep Triborough than to rely on a court decision, because courts are sketchy and don't always make sensible decisions.
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Post by NYS Techie on Jul 1, 2012 14:06:54 GMT -5
Nooooo, this would be a separate issue from the contractual question, because even though it isn't in the contract, if it has been a condition of our employment in the past the state can't unilaterally change it without entering negotiations. That's part of union negotiation law. I wish FVJ was here, he knows all about this stuff.
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Post by Darth Stateworker on Jul 1, 2012 14:17:31 GMT -5
I think you're missing the point that the case on steps has already argued bro, so we'd be re-arguing the same case.
That's why I don't trust the courts on this: it IS in the contracts, so it IS a negotiated condition of employment, and yet they still found that it wasn't a "negotiated" item. The original decision makes no sense.
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Post by NYS Techie on Jul 1, 2012 18:46:25 GMT -5
Again, you're not seeing MY point. ALL changes to conditions of our employment must be negotiated. It doesn't matter if it's a contract issue or NOT. FVJ won a couple of arguments about this very thing, and all my agency was trying to do was make a guy work 9 to 5. They had let him work 7:30 - 3:30 for years, and FVJ argued that they were trying to change his conditions of employment. He said they couldn't do that without negotiations with the union. You want to hear it from someone else? OK. This first page is about changes to a contract. You are interested in the line "implication - that is through a change in long standing custom and practice (for example if your employer allows all employees a day off each year for New Year's Eve)". Removal of steps would be a change by implication to a standing custom and practice. www.direct.gov.uk/en/employment/employees/employmentcontractsandconditions/dg_10028079This next page is about changes to conditions of employment; it's from the NLRB, so I'm sure you'll enjoy it: www.nyhtc.org/secured.php?page=nlra_rightsNote the passage "Protection Against Unilateral Changes" which says: "The employer's legal obligation under the N.L.R.A. to negotiate in good faith with the union also means that the employer is not permitted to "unilateraly" change the terms and conditions of employment of workers represented by the union. This means that the employer must notify the union in advance about, and negotiate over, such changes before implementing them, and it is unlawful for the employer to put the proposed changes into effect until the parties have either resolved any dispute about the changes, or reached a legal impasse in negotiations." This has nothing to do with the contract, Darth. They can't change ANY of the terms and conditions of employment without negotiating the changes. Now, please think my argument through before you reflexively bring up that court case again. I think I have a real point here. According to the NLRB, they can't take away steps unless they negotiate the change.
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Post by Darth Stateworker on Jul 1, 2012 20:54:20 GMT -5
FVJ could have argued anything. It doesn't matter. Previously existing case law is, from a courts perspective, as good as a written law from the legislature.. It will be very difficult to argue against already existing case law.
*example: do you see any anti-abortions Republicans arguing against Rowe vs Wade in court? No. Why? The case law has already set the precident on abortion. They now have to try to legislate it away, or they can't do shit. That's how case law works.
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Post by uncivilservant on Jul 2, 2012 5:00:19 GMT -5
And Plessy V Ferguson wasn't litigated away in the 1950s-60s? It isn't unprecedented for precedent to be overturned, it's simply a matter of probability that the counterargument can gain traction with the justices in place now versus then.
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