ALBANY, N.Y. (CN) - New York State has allowed three apprenticeship programs to operate provisionally for too long because the Department of Labor failed to follow its own rules, an association of labor locals claims in court.
Plumbers and pipefitters unions asked a judge to cancel the probationary programs of Local 355, United Service Workers Union, because they were headed for cancellation anyway before the Department of Labor bent the rules and permitted an administrative appeal that stayed the cancellation.
"This violation is not academic, as Local 355 signatories continue to bid on public works contracts requiring bidders to have registered, approved apprenticeship training programs," the union says in a memorandum of law filed with the complaint.
"This court should, therefore, annul NYSDOL's decision to stay the cancellation of Local 355's probationary apprenticeship training programs ... and direct NYSDOL to cancel those programs immediately."
The complaint was filed in Albany County Supreme Court by Michael McNally as president of the New York Pipe Trades Association, an alliance of 13 union locals based near Glens Falls. It is an affiliate of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, a building trades union whose members make, install and maintain piping systems.
The Article 78 petition names the Department of Labor and Commissioner Peter Rivera as defendants, and Local 355 as a necessary party to the complaint.
Local 355 is one of 19 locals in the United Service Workers Union, headquartered in the Briarwood section of Queens. The USWU website says it represents workers in the petroleum, automotive, construction, office/clerical, telecommunications and building services fields.
Local 355 has a Joint Apprenticeship Training Fund that has provided sheet-metal training for several years, according to the website, which adds that the fund "also recently received" approval for apprenticeship training in sprinkler-fitting, steam-fitting, plumbing and pipe-fitting.
"This was a tremendous victory for Local 355 after a long and hard-won battle, since this program operates in direct competition with other unions who fought our approval," the website states.
"Knowing that our members pose a real threat to their livelihoods, these other unions attempted to block our program politically. However, through the perseverance and hard work of everyone involved with the JATF, we were able to obtain these additional approvals and provide new opportunities for our members."
McNally's complaint says that some members of his Pipe Trades Association run state-approved training programs for plumbing, pipe-fitting, steam-fitting and sprinkler-fitting.
Local 355 began offering apprenticeship training in those trades in July 2009. Under regulations developed by the Department of Labor, new apprenticeship programs must complete a two-year probation, during which they are evaluated for their effectiveness.
Apprenticeship programs are designed to provide workers with paid, on-the-job training for a skilled occupation under the guidance of experienced workers in a trade; related classroom training also occurs.
Apprenticeships can last from one to six years, depending on the occupation, according to the Department of Labor's website. Apprentices become part of an employer's labor force, and their training is memorialized in a written contract that is registered with the department.
McNally claims that just before the probationary period for Local 355's training programs was to end, the Department of Labor sent letters describing problems with each one, and said it was extending the probation of one program by a year, to July 2012, and the other two by six months. Later, another six months was added for those programs, taking their probation to July 2012, too.
The department's letters cited issues with poor retention of apprentices and employer-sponsors that lacked workers' compensation coverage or had outstanding unemployment insurance judgments.
During this period, McNally says, the Pipe Trades Association submitted 46- and 95-page complaints to the Department of Labor, "containing extensive, documented evidence demonstrating that the probationary programs should be formally de-registered and deemed to have failed probation."
Two follow-up letters with more evidence were submitted.
On the eve of the end of the extended probation in July, the Department of Labor told Local 355 that it had decided to cancel the probationary programs, McNally says.
Department rules require that after a probationary period, training programs be passed, failed or given a probation extension of no more than a year.
The department can cancel the registration of an apprenticeship program at any point during its probation.
Failed programs are allowed to file a written appeal of the decision, but "NYSDOL's rules contain no provision permitting an appeal of a decision to cancel a probationary program," McNally says.
Yet "[w]ithout citing to any legal authority, the July 16, 2012, letter further stated, 'You are reminded that you have 30 days to file a written appeal with the commissioner regarding this determination and that the cancellation of this program is stayed for this 30-day period,'" according to the complaint.
Local 355 appealed the cancellation about a month later.
McNally says the department then decided to extend the cancellation's stay until it ruled on Local 355's appeal.
"Upon information and belief, to date, Local 355's appeal of the cancellation decisions has not been decided, and the stay of those cancellations remains in effect," the complaint states. The probationary programs continue to operate.
McNally claims the Department of Labor's actions were "affected by an error of law or [were] arbitrary and capricious or an abuse of discretion."
He asks the court to direct the department to terminate Local 355's appeal of the cancellations, to lift the stay of the programs' cancellation, and to cancel the programs.
He is represented by Robert Stulberg, with Broach & Stulberg, in New York City.
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