Chaos Continues in New York Court System

Judge Vacates TRO Against OCA Over Clerks' Uncompensated Hours
The New York Law Journal by Daniel Wise  -  June 15, 2011

A judge in Manhattan yesterday dissolved her temporary order requiring the Office of Court Administration to pay clerks assigned to weekend arraignment shifts an additional four hours of pay per week. Acting Justice Barbara Jaffe also denied the request of the New York State Clerks' Association, which has 1,600 members in New York City, for a preliminary injunction prohibiting OCA from re-structuring the hours of clerks assigned to weekend shifts in a manner that requires four hours of uncompensated meal time per week. Justice Jaffe, who issued the temporary restraining order last week, denied the motion on the grounds that the clerks would be paid if they prevailed. About 25 court clerks, including three of the union's officers, packed into Justice Jaffe's tiny courtroom for the half-hour argument yesterday. The group took the judge's adverse ruling without any show of emotion and filed silently out of the courtroom to meet with the union's lawyer, Anthony J. Costantini, in an empty room down the corridor. After the meeting, Mr. Costantini said in an interview that the clerks were "extremely disappointed" but that no decision would be made regarding an appeal until after the judge issued a written ruling. OCA Deputy Counsel General Lee A. Alderstein argued that an injunction was unwarranted because if the union prevailed, its members would receive compensation for their unpaid hours. He also argued that equities tip in OCA's favor because the redesigned schedules of clerks working weekend shifts was part of an overall effort to curtail overtime as OCA struggles to cope with a $170 million budget shortfall. When Mr. Alderstein during the hearing mentioned the four hours of uncompensated meal time, Justice Jaffe expressed skepticism about the union's position, noting that having uncompensated meals would be "just like the rest of us." Last Saturday OCA reduced the hours for handling arraignments over the weekend. To accommodate reduced hours, OCA compressed the work schedules of night shift clerks to four days from five. As of last Thursday, night clerks started working three eight-hour shifts and one 11-hour shift, which had to be covered on a Saturday or a Sunday. OCA also required that the night shift clerks take a one-hour uncompensated meal break on each of their four shifts. Mr. Costantini challenged Mr. Alderstein's assertions that if the union prevailed on its grievance the clerks would receive back pay, saying the OCA had made less than an ironclad commitment on that point. The grievance process could take as long as a year, he said, and to require clerks to work the uncompensated hours with no guarantee that they would be compensated if they win is "not a proper way to treat public employees." Mr. Alderstein countered that Judge Lawrence Marks, OCA's administrative director, said that the clerks would be paid if they won their grievance. But when challenged directly by Mr. Costantini on that point, Mr. Alderstein said the state was not waiving any legal arguments. Until last weekend, arraignment parts were open for 16 hours on both Saturday and Sunday. With the exception of Staten Island, those shifts have now been reduced by 6 1/2 hours. Shifts in second arraignment parts in Manhattan and Brooklyn have been curtailed even more sharply, by 10 hours. In Staten Island the weekend arraignment part has been reduced by one hour, from four to three hours. Under state law, defendants must be brought before a state judge to be arraigned within 24 hours after being investigated. Judge Marks said in an interview that the number of defendants awaiting arraignment more than 24 hours on Tuesday "was consistent with a typical Tuesday."  Daniel Wise can be reached at dwise@alm.com.