By Tom Eldred,
Delaware State News
DOVER — The union representing Delaware correctional officers has no grounds to stand on claiming the Department of Correction is violating officers' rights by forcing them to work involuntary overtime and asking for detailed medical information when they call in sick.
That was the state's answer to an unfair labor practices complaint filed a week ago against DOC with the Public Employment Relations Board by the Correctional Officers Association of Delaware.
The state's response, filed with PERB Wednesday by Jerry M. Cutler, manager of labor relations for the state personnel office, calls COAD's complaint "frivolous'' and asks PERB to dismiss it entirely.
Mr. Cutler's 13-page response also lists a series of "new matters,'' claiming the COAD complaints fail to allege facts that violate the Delaware Code or an interim labor agreement between DOC and the union.
The document says PERB does not have jurisdiction to rule on medical privacy regulations that are controlled by federal law.
What's more, Mr. Cutler says DOC is not bound by federal law and that the interim bargaining agreement with the union actually permits DOC to request medical information from employees that "reasonably explains why they were unable to perform their duties on the day(s) in question.''
COAD's complaints, authored by union attorney John F. Brady, focus on what COAD believes are violations of an interim agreement that has been in place while DOC and the union hammer out a long-term labor contract.
"Corrections wardens are requiring supervisors to freeze COAD member officers over for additional mandatory overtime without following the procedures of the interim operating agreement and by refusing to allow frozen personnel the opportunity to swap the freeze with personnel who wish to voluntarily work the shift,'' COAD's complaint stated.
Mr. Cutler's response says DOC has not violated the agreement in any way.
"There are no provisions in the interim agreement which restrict the ability of wardens to have supervisors ‘call and determine who is frozen' or require wardens to ‘allow frozen personnel the opportunity to swap the freeze with personnel who wish to voluntarily work the shift,'" the state's response says.
In "new matters,'' Mr. Culter says the interim agreement specifically recognizes that "the state shall reserve the right to distribute overtime, including but not limited to freezing employees, whenever the overtime distribution made by (COAD) fails to meet operational or security needs."
The response says COAD's overtime distribution "repeatedly failed over a period of time to meet operational or security needs'' and therefore no violation occurred.
Correctional officers have been complaining for months about DOC's habit of ordering multiple back-to-back eight-hour shifts in the same pay period to cover inadequate prison staffing.
Officers say 16 straight hours of work is exhausting, adds to security concerns and places stress on family relations.
"The intent of freezing is to cover staffing levels during emergency shortages — and not to supplement the department's shortfalls in manning the facilities,'' COAD's complaint said.
COAD also alleged that DOC is violating the federal Health Insurance Portability and Accountability Act of 1996 by requiring supervisors to get additional medical data from union members and "requesting detailed notes from medical practitioners with specific patient medical conditions.''
The state's response says PERB does not have jurisdiction over HIPAA, and that even if it did, the state is not a "covered entity" as defined by HIPAA "in its receipt of health information provided by employees to verify the legitimacy of their entitlement to sick leave.''
Mr. Brady said that because the state included new matters in its response, he's allowed seven days to reply.
"I have a week to reply, which I will do,'' he said. "They're claiming the interim agreement allows those items so they're not denying that they are not doing that.
"In fact, they're admitting that they are asking for that (medical) information and that they're holding people over on mandatory overtime.
"But it was the intent of the interim agreement for people to be frozen over in emergencies, not as the regular course of conduct. That's what's turned this into people being frozen over two, three and four times a month.''
Mr. Brady said he plans to "aggressively'' pursue the state's contention that it doesn't have to abide by federal HIPAA regulations.
"Federal law supersedes any type of negotiated contract terms,'' he said. "HIPAA regulations protect patients' privacy. It is protected privacy information and the officers don't have to reveal that information.''
PERB Executive Director Charles Long said after the two sides submit pleadings on the new matters, a decision would be reached on whether there is "probable cause'' that violations have occurred.
"If we find no probable cause, it's over, although (COAD) could appeal to the full PERB board.'' he said. "If there is probable cause, we move forward.''
Mr. Long said moving forward would entail informal mediation with a PERB facilitator to resolve the issues, or moving to a formal public hearing in front of a PERB hearing officer.
"That would probably be me,'' he said. "A decision would then be rendered in 30 days.''
He said the decision could be appealed to the three-member PERB board, and failing that, to the state Court of Chancery.
Mr. Long said that if PERB finds DOC is committing unfair labor practices, the board could take "whatever action necessary to remedy the wrong," up to and including mandated policy changes.
He said if DOC failed to heed the PERB orders, the board could go to the Court of Chancery for an "enforcing order.''
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Senior writer Tom Eldred can be reached at 741-8212 or teldred@newszap.com.
