***NEWS BULLETIN***
CLASS-ACTION LAWSUIT FILED IN FEDERAL COURT
TO PROTECT THOUSANDS OF SUNY EMPLOYEE JOBS
FROM STATE "CONTRACTING-OUT" (TERMINATION!)
A class-action lawsuit on behalf of thousands of professional employees in
the State University of New York (SUNY) and the future of tenure and other
rights (e.g., academic freedom) in higher education will be decided by
Federal Court Judge John T. Curtin.
The issue is whether or not State Governor George E. Pataki can
unilaterally break thousands of employee contracts by contracting-out
(terminating!) the services of any/all public employees and then sign
contracts with others to do the same services!
The Plaintiffs are all professional employees (professors, librarians and
other professionals) who are 40 years of age or older who work in all of
the colleges in the State University of New York. Most have
tenure/permanent contracts.
The Defendants are the State of New York and the Union (UUP/NYSUT) that
"agreed" with Governor Pataki's specious claim of a "right" to contract
out (terminate) any or all 21,000+ State University professional employees
and sever tenure rights in one of the largest public universities in the
United States.
A few examples of the facts in this precedent-setting case are included
below. A copy of the full text of the Plaintiffs' May 6, 1999 Amended
Complaint is posted on-line at
http://ourworld.compuserve.com/homepages/PZarembka/aged.htm
For further information, see Case No. 99-CV-0032(C) in the United States
District Court, Western District of New York (located in Buffalo) and/or
contact the class-action coordinators (Professors Paul Zarembka,
716-875-1698 and Georgiana Jungels) by e-mail ([EMAIL PROTECTED]) or
at P.O. Box 1077, Buffalo, NY 14213-2077.
____________________________________
EXAMPLES of FACTS from COURT FILES
45. On or about September 30, 1997, the Executive Branch of the State of
New York Employer-Defendant) and the United University Professions
(Union-Defendant) signed a collective bargaining agreement.
46. Plaintiffs claim the above agreement between the State of New York and
UUP (Defendants) is invalid because it includes articles, portions, and
sections that violate policies, laws, rules, and regulations, including
but not limited to the Age Discrimination in Employment Act of 1967 (ADEA)
and the Older Workers Benefit Protection Act of 1990 (OWBPA) and State
rules appearing in the Official Compilation of Codes and Regulations of
the State of New York as Subchapter b of Chapter V of Volume 8
(Education), (underlining for emphasis).
48. In fact, there is no State or Federal law that gives an employer the
right to arbitrarily and capriciously break professional employees term
(specified period) or permanent-continuing (life-time) individual
contracts.
58. Under the Policies of the State University Board of Trustees,
professional employees with continuing appointment (academic employees)
and professional employees with permanent appointment (professional
employees) have life-time appointment in effect until the individual
employee voluntarily resigns or voluntarily applies for retirement
benefits (Policies, Article XI and Article XV).
66. The other class of employees will be "affected" employees and only
entitled to "redeployment consideration" or "severance" in accordance with
Article 36 (Contracting Out) and Appendix A-27 (Memorandum of
Understanding on Contracting Out), copy attached herein as Exhibit I.
70. The majority of the full-time (1. FTE) professional employees in the
State University of New York with individual permanent, continuing or term
contracts, under the Policies, are forty (40) years of age, or older.
71. For example, in the Fall of 1991, about 580 of 631 University leading
professors, full professors and associate professors (those who virtually
always have tenure) at the State University of New York University at
Buffalo (UB) core campus (those other than in the Health Sciences) were
forty (40) years of age of older, i.e., about 91.9%.
72. The Age Discrimination in Employment Act of 1967 (ADEA), as amended,
protects individuals, who are forty (40) years of age, or older, from
employment discrimination based on age.
77. Under the Age Discrimination in Employment Act ("ADEA"), it is
unlawful for employers, including the State of New York or State Governor,
to limit, segregate, or classify State University employee(s) in any way
which would deprive, or tend to deprive, any individual employee of
employment opportunities or otherwise adversely affect his/her status as
an employee; or discharge any individual or otherwise discriminate against
any individual with respect to compensation, terms/conditions or
privileges of employment, because of such individual's age; ...
79. The "discharge" element of an ADEA claim may be either an actual
termination of the plaintiffs' employment by the employer or it may be a
"constructive" discharge.
80. The provisions of Contracting-Out (Article 36 and Appendix A-27) are
specific constructive discharge terms and conditions and violate Federal
law, including but not limited to, the ADEA.
81. Plaintiff(s) may prove a constructive discharge by establishing that
his/her employer, rather than acting directly, deliberately made his/her
work conditions so intolerable that he/she was "forced" into an
involuntary resignation such as defined in Appendix A-27 of the 1995-1999
Agreement (Exhibit I).
93. The ADEA provides for an award of double damages when an employer's
action is "willful".
97. The State of New York (Defendant) has stated no reason(s) for
eliminating any professional employee position (underlining for emphasis).
98. The United University Professions (UUP) has given no reason for
agreement to "deploy" or "sever" members (underlining for emphasis).
99. Based on information and belief, Plaintiff(s) claim there is no reason
but discrimination for the State to arbitrarily eliminate professional
employee position(s) under the provisions of Article 36 (Contracting Out).
100. Under the Age Discrimination in Employment Act ("ADEA"), it is
unlawful for labor organization(s), including the United University
Professions, to limit, segregate, or classify its membership, or to
classify or fail or refuse to refer for employment any individual, in any
way which would deprive or tend to deprive employment opportunities or
would limit such employment opportunities or otherwise adversely affect
his/her status, as an employee or as an applicant for employment, or
exclude and/or expel from membership or otherwise disciminate against any
individual emloyee or union member, based on age; ...
102. Based on information and belief, Plaintiffs claim, individually and
on behalf of all others similarly situated, that the provisions in Article
36 and Appendix A-27 in the 1995-1999 Agreement between the State and UUP
(Defendants) are a subterfuge for the State (Employer-Defendant) to select
professional employees arbitrarily, one-by-one, and/or area-by-area,
and/or campus-by-campus, for termination without adhering to Article 35
(Retrenchment) provisions.
115. Based on information and belief, Plaintiffs individually, and on
behalf of any/all other State University professional service employees,
claim the State (defendant) deliberately and maliciously stopped payment
into the UUP Benefit Trust Fund to demonstrate to any/all of the affected
employees what the State (defendant) could do to harm each and/or every
employee until UUP and its membership agreed to ratify the terms and/or
conditions proposed by the State (defendant) for a 1995-1999 Agreement,
underlining for emphasis.
123. Defendants, individually and jointly, deliberately misinformed and
misled plaintiffs during the collective bargaining process from 1995 to on
or about September 30, 1997 and they continue to mislead the plaintiffs.
135. The withholding of health benefits by the State (defendant) for over
two (2) years was a deliberate and malicious pressure to cause duress.
136. A person who acts under duress cannot ratify an agreement or contract
until the duress is removed.
143. Based on information and belief, the Plaintiffs claim the Board of
Trustees (Interested Party) is deliberately underbudgeting the University
to create a specious financial exigency as the reason for contracting out
and retrenchment in the future.
188. State employees who "apply" for "severance" (self-terminate) are not
eligible for State unemployment benefits.
211. Based on information and belief, Plaintiffs claim individually and on
behalf of all others similarly situated that the State (defendant) and UUP
(defendant) will use the provisions in Article 36 ("Contracting Out") to
arbitrarily select some employees for "good" contracts and some others for
"bad" contracts and this violates ADEA and The Equal Pay Act (EPA).
225. From September, 1981 to date, the State (Defendant) and UUP
(Defendant) have issued reports regarding inequities in salary and
benefits.
228. The financial harm to State University professional employees who did
not receive disparity raises for inequitable salaries for many years (eg.
1987 to 1999) is significant.
252. Based on information and belief, Plaintiffs claim the State and UUP
(Defendants) have violated Federal laws, including but not limited to, the
Racketeer Influenced & Corrupt Organizations Act ("RICO").
********************************************************************* Web
Site for "Age Discrimination" lawsuit against NY State and UUP is ********
http://ourworld.compuserve.com/homepages/PZarembka/aged.htm
