New York State Court of Claims

New York State Court of Claims

LEPKOWSKI v. THE STATE OF NEW YORK, #2001-015-175, Claim No. 97697, Motion No. M-63597


Synopsis


Court denied defendant's motion to dismiss consolidated Fair Labor Standards Act (FLSA) claim for lack of jurisdiction. Court found verification by one claimant united in interest sufficient pursuant to CPLR 3020 (d). Court also found claims contained sufficient detail to satisfied Court of Claims Act § 11 (b) and found claims to be timely with regard to allegations of statutory violations occurring within 6 months of filing and service of the claims.

Case Information

UID:
2001-015-175
Claimant(s):
RICHARD LEPKOWSKI, et al.

1

1A complete list of all claimants is annexed to this decision and order.
Claimant short name:
LEPKOWSKI
Footnote (claimant name) :
A complete list of all claimants is annexed to this decision and order.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97697
Motion number(s):
M-63597
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
William P. Seamon, EsquireBy: Lisa M. King, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 4, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:
REVERSED – 1 NY3d 201
See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claims (Abelson, et al. v State of New York, former Claim No. 97689 filed 1/21/98 and Lepkowski, et al. v State of New York, Claim No. 97697 filed 1/23/98) previously consolidated by order filed January 28, 1999 (King, J.) under Claim No. 97697 captioned Lepkowski, et al. v State of New York, is denied. The defendant sought dismissal of the consolidated claim[2] on the grounds that the Court lacks jurisdiction of the claim to the extent that each of these contract based claims was filed more than six months subsequent to its alleged accrual in violation of Court of Claims Act § 10 (4); that each claim fails to allege specific items of damage for each of the claimants[3]; that the claimants failed to allege with specificity the date when and the place where the claim accrued as required by Court of Claims Act § 10 and that the claims were not properly verified since each contained the verification of only a single claimant[4]. The defendant argues that claimants' failure to satisfy the requirements of the Court of Claims Act precludes the maintenance of these actions against the State. The defendant further moved to dismiss the consolidated claim on the ground that the Court lacks jurisdiction to grant the monetary relief requested herein since to do so the Court would be required to review and annul an administrative determination of the New York State Division of the Budget adopted pursuant to Civil Service Law § 134 and that the power to review and annul is vested exclusively in the Supreme Court pursuant to CPLR 7801 et seq. Defendant alleges that this Court is without jurisdiction to grant a declaratory judgment since it too lies within the exclusive jurisdiction of Supreme Court pursuant to CPLR 3001 et seq. Finally, the defendant seeks dismissal of the claim on the ground that the claimants are precluded by the principles of waiver and estoppel from asserting this claim. The claimants are identified in the claim as employees of the State of New York who are or were members of the Professional, Scientific and Technical Services Bargaining Unit (PEF) and it is asserted that each served in civil service titles assigned a salary grade of 23 or higher. It is alleged with respect to the Abelson claimants that they were eligible for but were denied payment of overtime compensation from April 1994 to the present. The Lepkowski claimants assert the same basic allegation for the period July 1992 to the present. Claimants in unison allege that their eligibility for overtime compensation arises under the Fair Labor Standards Act of 1938 as amended (27 USC § § 201-219) (hereinafter FLSA) and is payable for all work performed in excess of 40 hours in a designated work week.

The parties disagree as to whether or not the claimants are exempted from the provisions of the FLSA requiring the payment of overtime compensation pursuant to the "bona fide executive, administrative or professional" exemption provided in 29 USC § 213 (a) and that issue is not implicated by the instant motion.

The Abelson claim on its face indicates that it is a declaratory judgment action pursuant to CPLR 3001 et seq. It further contains a "cause of action" alleging that defendant's violation of the FLSA is arbitrary, capricious and contrary to law and requests relief pursuant to article 78 of the CPLR. Except as provided in section 9-a of the Court of Claims Act, a provision not relevant here, the Court of Claims lacks jurisdiction over actions seeking declaratory judgments over which only the Supreme Court has jurisdiction pursuant to CPLR 3001 (see, Fehlhaber Corp. & Horn Constr. Co. v State of New York, 69 AD2d 362). Moreover, an article 78 proceeding is a special proceeding and as such must be commenced in Supreme Court pursuant to article 4 of the CPLR (see, CPLR 7801 et seq.).

The relief sought by claimants herein in the nature of a declaratory judgment or relief available only within the context of an article 78 proceeding cannot be obtained in this Court and claimants' requests for such relief must be denied and those portions of the claim seeking such relief are dismissed.

The remaining request for relief seeks money damages from the State arising from alleged non-payment of overtime compensation to the named State employees having a classified grade of 23 or higher in violation of the FLSA. It is now established that the Court of Claims has jurisdiction to entertain a claim for money damages arising from an alleged violation of the Fair Labor Standards Act by the State of New York (see, Alston v State of New York, 281 AD2d 741; Bergmann v State of New York, 281 AD2d 731).

Turning first to the defendant's allegations concerning the claimants' alleged failure to comply with sections 10 and 11 of the Court of Claims Act the Court first considers the question of timeliness. In this matter the claimants argue that the timeliness of the claims should be measured not with reference to the requirements of the Court of Claims Act but rather should be determined to be two years in Lepkowski measured from the filing of claimants' consents to be party plaintiffs in federal court pursuant to 29 USC § 216 (b) and three years prior to the filing of the Abelson claimants' notice of claim [sic] in February 1997 because the defendant's violations of the FLSA in that case are alleged to have been wilful (see, 29 USC § 255 (a)). The defendant, however, correctly argues that a claimant seeking relief in this Court pursuant to the FLSA must comply with the requirements of Court of Claims Act section 10 (4) (see, Bergmann v State of New York, supra). In Bergmann the Appellate Division, Third Department, said:
As applied to the matter before us, the State's waiver of sovereign immunity is found in Court of Claims Act § 8 which provides, in relevant part, that '[t]he state hereby waives its immunity from liability and action * * * and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article' (emphasis supplied). One such limitation is embodied in Court of Claims Act § 10 (4), which provides for a six-month Statute of Limitations for, inter alia, FLSA claims brought against the State. As the Court of Appeals has noted, '[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed' (Lichtenstein v State of New York, 93 NY2d 911, 913, quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724). As claimant plainly failed to comply with the time limitations set forth in Court of Claims Act § 10(4), his claim was properly dismissed
Thus, it is clear that to be jurisdictionally viable an FLSA claim must be timely commenced pursuant to Court of Claims Act § 10 (4) which provides:
4. A claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims, shall be filed and served upon the attorney general within six months after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after such accrual.
In Bergmann the IAS Court had concluded that those portions of the claim which accrued more than six (6) months prior to the filing of the claim on December 26, 1997 were time barred. The Appellate Division agreed. A similar conclusion was reached by this Court in Alston v State of New York, supra, an unreported decision recently affirmed by the Third Department. While it is clear that timely service and filing of a claim or service of a notice of intention is a jurisdictional prerequisite in the Court of Claims (see, Selkirk v State of New York, 249 AD2d 818) where, as here, it is alleged that damages are continuing, dismissal is appropriate only as to that portion of the claim accruing more than six months prior to filing with the Court (see Bergmann v State of New York, 281 AD2d 731, supra; see also, Speers v State of New York, 183 Misc 2d 907, affd in part 2001 WL 812625 [NY AD 3 Dept.]). "A continuous course of conduct extends the accrual period of a claim until such conduct terminates" (Mahoney v Temporary Commn. of Investigation of State of N.Y., 165 AD2d 233, 240) so long as the claim is "predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" (Selkirk v State of New York, supra at 819).

Since claimants herein, like those in Alston, supra and Bergmann, supra, appear to allege continuing violations of the FLSA the Court finds that the claims of the named claimants in Abelson which accrued more than six months prior to the service on the Attorney General of the claimants' notice of intention to file a claim on February 19, 1997, i.e., those claims accruing prior to August 19, 1996, are barred as untimely. Similarly, claims in Lepkowski asserted for the period in excess of six months prior to the filing of the claim in this Court on January 23, 1998 (i.e., claims older than those accruing on July 23, 1997) are dismissed as untimely pursuant to Court of Claims Act § 10 (4). Claims accruing on and after August 19, 1996 for those claimants named in the Abelson claim and July 23, 1997 for those named in the Lepkowski claim are timely and subject to further inquiry on this motion.

The Court also rejects the defendant's argument asserting that the alleged lack of a specific accrual date requires dismissal pursuant to Court of Claims Act § 11. The relevant pleadings assert that the named claimants are employees of the State of New York who are or were required to be paid overtime compensation pursuant to the FLSA and who have not been paid such compensation beginning on a date certain and continuing to the present. The Court also finds that the information provided with regard to each named claimant in Abelson including his or her name, address and identification of the specific State agency or department at which such individual was employed is sufficient to defeat defendant's motion to dismiss the claim for lack of specificity as to the place of the claims' accrual. The information alleged is deemed sufficient on the motion to permit the State to investigate the allegations using its own records (Grumet v State of New York, 256 AD2d 441).

The failure of claimants' attorneys in Lepkowski to identify the State agencies or departments at which the named employees were employed at the time of the claims' accrual makes a determination of the place of accrual more difficult. However, as State employees the departments or agencies at which the individuals (identified by name and residence address in the claim) were employed are matters of public record easily discoverable by the defendant. The Court declines to dismiss either the Abelson claim or the Lepkowski claim on that basis.

Defendant also seeks dismissal on the grounds that each of the 390 claimants in Abelson and each of the 377 claimants in Lepkowski did not individually verify the claims. The final sentence of section 11 (b) of the Court of Claims Act states: "The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court." Verification of a complaint (and other pleadings) in a Supreme Court action is governed by CPLR § 3020 which provides "[t]he verification of a pleading shall be made by the affidavit of the party, or, if two or more parties united in interest are pleading together, by at least one of them who is acquainted with the facts . . . ." (CPLR § 3020 (d)).

In Martin v State of New York, 185 Misc 2d 799, Judge Corbett dismissed a claim which was unverified finding the verification requirement to be jurisdictional in nature. While this Court has no doubt as to the correctness of the holding in Martin it is instructive to note that Judge Corbett reflects in a footnote that the claimant could have, but did not, utilize the provisions of CPLR § 3020 (d) (3) to effect verification of the claim and thereby satisfy the jurisdictional requirements of Court of Claims Act § 11 (b).

The unity of interest required by CPLR § 3020 (d) "refers to the identity of legal rights and interests" of the claimants and, should such identity of rights and interests be present, a single verification will suffice in Supreme Court (Betzler v Carey, 109 Misc 2d 881, 886 affd 91 AD2d 1116, appeal denied 59 NY2d 601). In this case, both claims were verified by an individual claimant (Donald K. McCrary [Abelson] and James E. Close [Lepkowski]) who attested that "he is one of the claimants in the above-titled action and is united in interest and pleads together with the claimants that he has read the foregoing claim and knows the contents thereof; that the same is true to his knowledge, except as to matters therein stated to be alleged upon information and belief . . .". As the claims were verified by McCrary and Close the verification is effective as to each claimant identified in the claim and united in interest with them pursuant to CPLR § 3020 (d) (see, Hood v State of New York, 113 Misc 404, 407-408, cf, Vogel v State of New York, 187 Misc 2d 186). The defendant's motion to dismiss the claims on the basis of improper verification is denied.

The defendant has also moved for dismissal on the grounds that the claims are jurisdictionally defective since they fail to separately state the items of damage claimed to have been sustained and the total sum claimed (see, Court of Claims Act § 11[b]) and it is true that neither of the subject claims itemize each claimant's damages nor state a total sum claimed. However, assuming the State is found liable, damages arising from the alleged violation of the FLSA will be determined by applying the statutory FLSA standard of overtime compensation to the claimants' proof of hours worked beyond the stated maximum for each of the named claimants measured from the effective date of each claim as determined above. The damages which will be due are those provided in the statute itself and the claims herein make that clear. The defendant does not argue that it was in any way prejudiced, misled or disadvantaged and the Court declines to dismiss the claims for their failure to include itemized damages and a total sum claimed even though the claimants' task of proving such damages at trial will be a formidable one.

It is not and cannot be disputed that PEF, as the claimants' designated collective bargaining agent, entered into three collective bargaining agreements (CBA) with the State from 1991 to the present and that such agreements contained both an "Overtime Compensation" provision[5] and a "Conclusion of Collective Negotiations" provision[6]. The overtime compensation provision in each of the agreements provided in identical language as follows:
Compensation for overtime work will continue to be subject to all applicable statutes, rules and regulations, except that on and after October 1, 1990, all positions in the PS&T unit allocated or equated to Grades 22 and below shall be deemed to be eligible to receive overtime compensation.
The Conclusion of Collective Negotiations provision in the referenced contracts was also identical and provided:
This Agreement is the entire agreement between the State and PEF, terminates all prior agreements and understandings and concludes all collective negotiations during its term. During the term of this Agreement, neither party will unilaterally seek to modify its terms through legislation or any other means. The parties agree to support jointly any legislation or administrative action necessary to implement the provisions of this Agreement. The parties acknowledge that, except as otherwise expressly provided herein, they have fully negotiated with respect to the terms and conditions of employment and have settled them for the term of this Agreement in accordance with the provisions thereof.
Defendant on this motion argues that claimants, by the actions of their representative (PEF) in negotiating and agreeing to the above stated overtime compensation provision, have waived any claim of an FLSA violation and should be estopped from seeking a determination of overtime eligibility for those represented individual claimants who are classified as grade 23 or higher. Claimants allege in opposition that this argument lacks merit because PEF, as a certified bargaining agent, was not the legal representative of all PS & T unit members for all purposes as the defendant suggests. Claimants further argue that the U.S. Supreme Court holding in Barrentine v Arkansas-Best Freight Systems, Inc., 450 US 728, 101 S Ct 1437 (1981) controls on this issue and that pursuant to that holding the instant claimants' FLSA rights cannot be waived through the collective bargaining process. Defendant in response asserts, without citing authority, that the Barrentine decision is no longer persuasive in light of the Supreme Court's more recent decision in Alden v Maine, 527 US 706, 119 S Ct 2240 (1999).

In the first instance, a reading of the overtime compensation provisions of the various collective bargaining agreements does not reveal an intention to render employees grades 23 or above overtime ineligible. The plain language of the subject provisions simply indicates that overtime compensation issues will be determined with reference to applicable statutes (including the FLSA) rules and regulations except that "all positions in the PS&T unit allocated or equated to Grades 22 or below shall be deemed to be eligible to receive overtime compensation."

Although the issue in Barrentine (supra), namely the rights of an employee to bring a Federal court action alleging a violation of the FLSA after his unsuccessful submission of a wage claim to a joint grievance committee pursuant to the provisions of his union's collective bargaining agreement, is different from the issue raised by the instant consolidated claims, the Supreme Court's language on the subject of contractual waiver of a right of action granted under the FLSA appears to this Court to be controlling.

The Court at pp 740-741 said:
This Court's decisions interpreting the FLSA have frequently emphasized the nonwaivable nature of an individual employee's right to a minimum wage and to overtime pay under the Act. Thus, we have held that FLSA rights cannot be abridged by contract or otherwise waived because this would 'nullify the purposes' of the statute and thwart the legislative policies it was designed to effectuate. Brooklyn Savings Bank v O'Neil, 324 U.S. 697, 707, 65 S. Ct. 895, 902, 89 L.Ed. 1296 (1945): see D.A. Schulte Inc. v Gangi, 328 U.S. 108, 114-116, 66 S.Ct. 925, 928, 929, 90 L.Ed. 1114 (1946): Walling v Helmerich & Payne, Inc., 323 U.S. 37, 42, 65 S.Ct. 11 14, 89 L.Ed. 29 (1944); Overnight Motor Transportation Co. v Missel, supra, at 577 62 S.Ct., at 1219; see 29 CFR § 785.8 (1974). [FN 17] Moreover, we have held that congressionally granted FLSA rights take precedence over conflicting provisions in a collectively bargained compensation arrangement. See, e.g., Martino v Michigan Window Cleaning Co., 327 U.S. 173, 177-178, 66 S.Ct. 379, 381-382, 90 L. Ed. 603 (1946); Walling v Harnischfeger Corp., 325 U.S. 427, 430-432, 65 S.Ct. 1246, 1248-1249, 89 L.Ed. 1711 (1945); Jewell Ridge Coal Corp. v Mine Workers, 325 U.S. 161, 166-167, 170, 65 S.Ct. 1063, 1066-1068, 89 L.Ed 1534 (1945). [FN 18] As we stated in Tennessee Coal, Iron & R. Co. v Muscoda Local No., 123 321 U.S. 590, 602-603, 64 S.Ct. 698, 705-706, 88 L.Ed. 949 (1944) [footnote omitted]:

FN 17 But see 29 U.S.C. § 216(c).

FN 18 '[N]othing to our knowledge in any act authorizes us to give decisive weight to contract declarations as to the regular rate because they are the result of collective bargaining.' Bay Ridge Operating Co. v Aaron, 334 U.S. 446, 463, 68 S.Ct. 1186, 1195, 92 L.Ed. 1502 (1948). '[E]mployees are not to be deprived of the benefits of the Act simply because they are well paid or because they are represented by strong bargaining agents.' Jewell Ridge Coal Corp., 325 U.S., at 167, 65 S.Ct., at 1066.

'The Fair Labor Standards Act was not designed to codify or perpetuate [industry] customs and contracts.... Congress intended, instead, to achieve a uniform national policy of guaranteeing compensation for all work or employment engaged in by employees covered by the Act. Any custom or contract falling short of that basic policy, like an agreement to pay less than the minimum wage requirements, cannot be utilized to deprive employees of their statutory rights.' [FN 19] [Footnote omitted].
In his concluding paragraph Justice Brennan writing for the majority in Barrentine, supra at 745 held, in part, as follows:
In sum, the FLSA rights petitioners seek to assert in this action are independent of the collective-bargaining process. They devolve on petitioners as individual workers, not as members of a collective organization. They are not waivable.
The defendant, as noted above, has cited no authority for the assertion that Barrentine has been rendered unpersuasive by Alden v Maine, supra. Unless or until the U.S. Supreme Court chooses to overrule Barrentine supra, or its earlier decisions cited therein, there can be no waiver of an individual claimant's right to pursue overtime compensation under the FLSA as urged by the defendant based upon the contractual language cited above. Dismissal resulting from such a purported waiver is, therefore, denied.

Finally, the defendant seeks dismissal of the consolidated claims on the grounds that the Court of Claims may not consider this claim for overtime compensation because the New York State Division of the Budget has formulated a policy regarding overtime compensation which, in part, recites that "employees in positions allocated or equivalent to S/G-23 or M/C-23 and above, and in those positions on the attached listings, are exempt and/or ineligible for overtime compensation." The defendant asserts that the instant claim would require the court to exceed its legislatively defined powers and exercise equity jurisdiction in determining whether the overtime policy is or is not controlling.

It seems clear to the court that Congress could not have intended to provide an employer such as the State so expedient an avenue to remove itself from application of the statutory overtime requirement imposed by the FLSA as defendant's counsel suggests. The claims herein arise under statute and may be determined under the statutory framework established by the Congress without reference to Division of the Budget policies.

The defendant's motion is in all respects denied except as specifically noted herein.


September 4, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims



The Court considered the following papers:

1. Notice of motion dated June 6, 2001;

2. Affirmation of Kevan J. Acton dated June 6, 2001, with exhibit;

3. Affirmation of Lisa M. King dated June 18, 2001, with exhibits;

4. Sur-Reply affirmation of Lisa M. King dated June 28, 2001, with exhibits;

5. Collective bargaining agreements for 1991-1995, 1995-1999, 1999-2003.


Claimants named in Lepkowski, Claim No. 97697:

Richard T. Lepkowski

Edward G. Abelson

Nicholas Adams

Virginia K. Adams

Rebecca Jean Anderson

Charles Antzak

Harvey Arnett

Robert E. Arnold

Kathleen M. Ashline

Thomas A. Atlas

Charles G. Awalt

Roy D. Bailey

Dennis A. Balson

Jeffrey Baseel

Victor Batorsky

Steven Baum

Wayne R. Bayer

Arthur Berger

Barbara Berman

Michael J. Berman

Matthew Bewtiuegna

Susan D. Biscup

Gerald E. Black

Edward P. Blackmer

David D. Blair

Andris Blumbergs

Marianne J. Bono

Raymond Bordoni

Wayne G. Borek

Steven R. Botsford

Joan E. Boyd

Charles R. Bradley, Jr.

James V. Bradley

Paula Bradwell

Jonathan M. Brandes

Michael Brinkman

Susan Bubb

Donald H. Cadwell

John J. Calagna

Peter Campbell

Thomas 0. Carey

Albert Caronia

Philip Anthony Casoria

Kevin J. Casutto

Ronald Martin Cerniglia

Philip H. Chase

Louis A. Chiarella

Kenneth Chieu

Karen Chytalo

Lawrence G. Clare

James Edwin Close

D. Frank Coates

Stephen Cohen

William F. Coleman

James R. Collins

Judy A. Cooper

John Daniel Corcoran

Vincent J. Corcoran

Carl Cornelius

Michael Corso

Michael T. Cotton

Robert L. Covel

Donald J. Csaposs

Gail Arden Culver

Thomas A. D’Ambrosia

Richard F. Darius

Donald F. Darmer

Michael Daskalakis

Jennifer Dean

Barbara Dell’Acqua

William Mark Derespino

Vijaya Deshpande

Lester J. Dier

Elton Jay Dietrich

Leonard Dimon

Mary Ellen Dix

James R. Dolan

Edward F. Dombroski

Michael E. Doody

John J. Dowling

Michele Drugan

Frank Jon Duda

Ruben F. Enriquez

Nathan Erlbaum

Luann Evans

Robert S. Evans

James Evensen

Lois M. Fairchild

David J. Fallon

William Fedoryk

Douglas P. Ferguson

William F. Fichter

Bruce W. Finster

Scott J. Foti

Richard J. Frakes

Mark Friedlander

Wayne E. Fuhrman

Roy Fuller

George Gaborow

Charles F. Gardephe

Robert A. Gebhardt

Joel H. Gedell

Wayne E. Georgia

Jerome L. Gershenson

Joseph Giammichele

Marilyn Gimber

Barry J. Gloeckner

Keith D. Goertz

Mark Goldhaber

L. Daniel Gorritz

Daniel D. Gottlieb

Patricia Grabianowski
Stephen Granger

James A. Gray

Barbara J.S. Greenberg

Paul R. Greenfield

Ben Grey

Ira M. Gross

Charlene Gurian
Judith A. Hall

Francis Hamblin

Charles T. Hamilton

Robert Hansen

Mark J. Harris

William G. Hastback

Michael M.Hayden

Patrick T. Hayes

Deborah J. Heaphy

James M. Heekin

William C. Heilmann

Eric R. Helm

Joseph Hein

Gerald K. Heitzman

Thomas E. Herkenham

William D. Hewson

Keven R. Hintz

David E. Hodgkins

Maureen D. Hoffa

Patricia Hopp

Martin B. Horan

Nancy L. Hotaling

George W. Howard

Betty Ann Hughes

Gayle D. Hull

Lawrence Hunter

Nancy L. Huss

Mary Iandiorio

Craig D. Jackson

Craig S. Jackson

George A. Jackson

Richard H. Jacobs

Roberta Jainchill

Robert H. Jones

John F. Kaminsky

Michael J. Kanuk

Stephen Karnath

Michael T. Keenan

William M. Kelly

Neville Kerr

Gregory M. Ketz

Jeffrey W. Kimmer

Edward J. Kingsley

Frank A. Klinowski
Jonathan S. Klob

Mark A. Klotz

Edward A. Kokalas

Robert C. Knizek

Michael J. Komoroske

Lydia J. Kosinski

Richard J. Kotecki

Roseanne S. Kryjak

Henry J. Kuczynski

Nancy A. Kunz

Francis P. Lahey

Ellen Laquire

John J. Lavalle

Raymond Lawrence

Anastasia D. Leach

Edmina C. Lee

Mike Lepore

Gerard C. Letendre

Orest Lewinter

Donnie Lewis

Geneva M. Lewis

Mark B. Lewis

Sandra Liburd

Gerald H. Liepshutz

Dennis J. Lucia

Ann F. Lundin

Sue M. Malatesta

Ralph A. Marcucio

Samuel J. Mark

M. Charles Markham

Donald W. Marley

John E. Marsden

Lamont A. Martin

Peter J. Martinelli

Jonathan Maskin

John Mason

Anthony Mauro

Matthew Mazzamurro

Paul E. McAnany

Susan D. McCormick

Mark A. McDermott

Michael P. McDermott

Raymond T. McDougall

Michael J. McGarry

Walter F. McGuire

Charles R. McHugh, Jr.

Mary E. McIntosh

Carlton J. Meadows

Anthony J. Memoli

Steve Merr

Daryll K. Messner

Thomas 0. Middlebrook

Peter R.Miller

Lillian M. Milne

Frank Montemarano

Stephen R. Mooradian

Kenneth V. Moore

Stephen J. Moore

Terry L. Moore

James C. Moragne

C. Kelley Morgan

Ralph Morgenstern

Albert H. Muench

Brian R. Murphy

John P. Murphy

James E. Murray

Mario Musso

Lawrence A. Myers

Jerold A. Nadel

Kevin P. Neary

James F. Nelson

William G. Niezgoda

Thomas F. Nytch

Paul J. Obernesser

Eileen M. O’Brien

Patricia E. O’Connor

Terrence P. O’Neill

Karen Ore

Hugh D. O’Rourke

Ronald C. Palumbo

Karen B. Papandrea

Walter J. Parish

James M. Parmelez

Ronald D. Passmore

David Patten

Arthur D. Perkins

Dale J. Peterson

Peter M. Pettit

Richard A. Phipps

Gerald F. Pietraszek

Anthony M. Piscitelli

Andrew H. Placito Jr.

Brian Platt

Paul Polansky

Edward Powers

Salvatore F. Riore

John C. Proud

Paul E. Pugh

James Quinn

Janet Spencer Quinn

Theodore M. Raab

Gideon Rabino

Richard M. Raczkowski

William 0. Radley

John T. Raffa

Vincent Rapacciuolo

Edward Ratowsky

Patrick J. Regan

John N. Reynolds

Richard A. Rink

Michael F. Rivara

Edgar J. Robinson

Scott A. Rodabaugh

Laurence Ross

Abraham Rozman

Robert J. Rudd

Edward Rudder

Don E. Russell

John C. Ryan

Theodore P. Ryan

Ann L. Rymski

Philip Salerno

Clifford P. Salo

Nirmala Sankaran

Adolfo Santiago

Patricia Markham Santillo

James Santucci

Ann B. Sartoris

Andrew W. Schellhammer

Harry Scholl

Michael Schongar

Judith L. Schoonover

Jeffrey A. Schulkind

Ralph Schwartz

Robert K. Scott

James W. Sefren

Jesse Selzer

Steven Septer

Gregory P. Sharlow

Owen P. Shevlin, Jr.

William M. Shusda

Robert P. Shutter

Leonard Siegel

Larry Signer

Peter W. Silberstein

Richard A. Sill

Don Sislowski

Douglas C. Smith

Gale Smith

Gerald P. Smith

Robert P. Snyder Sr.

Richard Socher

James P. Soldo

Larry A. Solomon

Charles J. Stock

Doris D. Stout

Donald A. Streeter

Steven P. Struzinsky

Charles Subelka

Eleanor Zieske Symeon

Koon S. Tang

Benjamin J. Taylor

Sajni M. Thadani

Martin Thompson

Elaine Tober

Maryellen Tobin

William Toffenetti

Walter E. Tolcser

Raymond C. Toth

David H. Traynor

Jay T. Trembly

Gale Trentalange

Harvey B. Tress

Joseph R.Tuttle

Wayne R. Ugolk

Jacqueline Donovan Unser

John P. Valenti

James G. Van Hoesen

David Van Nordstrand

Quentin G. VanNortwick

Mark Edgar VanValkenburg

Santiago Vargas

Maria Velazquez

Thomas R. Verburg

David Vitale

Edward J. Wade

Philip G. Waite

Carl W. Walls

Vernon B.Walter

Stephen R. Warner

Neal P. Warren

H. Gene Washington

Sarah E. Washington

Allan Wasserman

Lawrence R. Watts

Denise Waxman

Alice M. Weber

Wanda F. Webster

Arthur Weiner

Trina L. Weisman

Joshua Weiss

Ronald White

Carl C. Widmer

Carl P. Wiedemann

Ronald G. Wierzbicki

John R. Williams

Rickard L. Williams

William R. Williams, Jr.

Edward Woltmann

Thomas K. Wong

James P. Zabawa

Donald Zacchea

George Zaferes

James T. Zampier

Claimants named in Abelson, Claim No. 97689:

Edward G. Abelson

Frank Accetta

Charles Adams

Virginia K. Adams

Kartikey P. Adhveryu

Susan S. Agcaoili

Stephen V. Alinova

Rebecca Jean Anderson

Sandra B. Anderson

David C. Anifant

Rosa B. Arguelles

Kathleen M. Ashline

Richard W. Baldwin

Dena S. Bannan

Richard Barten

Elizabeth J. Bartlett

Victor Batorsky

Wayne R. Bayer

Bill Beaudin

Richard Benas

Matthew Bentivegna

Michael J. Berman,

Janice S. Bigler

Russell D. Biss

Andris Blumbergs

David Boehm

Raymond Bordoni

Wayne Borek

Barry L. Borrow

Joan E. Boyd

James V. Bradley

M. Pamela Brandon

Richard Brazell

Hayden Brewster

Eric G. Brickner

Craig Brooks

Michael R. Brophy

Rebecca-Ruth Buehrig

Peter S. Burke

Dayton J. Burlarley-Hyland

Donald H. Cadwell

Todd M. Caffoe

Michael G. Callaghan

Samuel J. Candib

Toan Cao

Cheryl L. Caringi

Thomas Carrubba

Sal Casamassima

Philip Anthony Casoria

Robert H. Catalano

Louis A. Ceddia

Jeannette Cephas

Philip H. Chase

John F. Chaskey

Louis A. Chiarella

Connie F. Chin

Vivian Lai Chin

Karen Chytalo

Joseph F. Clancy

Lawrence G. Clare

Gordon M. Clarke

Gwen E. Coats

Glenn M. Cole

William F. Coleman

G. Michael Coley

James R. Collins

Paul C. Cona

Leo T. Connolly

Lloyd A. Coon

Judy A. Cooper

J. Daniel Corcoran

Vincent J. Corcoran

Donna M. Cosgrove

Michael Cotton

Chad E. Covey

Robert J. Cozzy

Jonathan T. Crandell

David Crawford

Gardiner Cross

Richard H. Custer

Robert Cuttler

Angus A. Dacosta

Marian Dale

Richard F. Darius

Mark D. Davies

Jennifer J. Dean

Lisa M. Del Signore

Bonnie A. Delaney

Barbara Dell’Acqua

Anthony E. Demaio

Joseph A. Desantis

David Dietrich

Richard P. Dimezza

Leonard G. Dimon

Thomas J. Donnelly

Michael E. Doody

Patricia Doyle

Michele Drugan

Paul E. Ducharme

Frank Jon Duda

Edward J. Durand

Leonard R. Epstein

James Evensen

R. Dennis Faulknham

David J. Fallon

Michael Farbman

Eugene J. Farley

Douglas P. Ferguson

Francis E. Ferro

Robert Filkins

Bruce Finster

Raymond Fischlein

Angelina Foster

Richard Frakes

Edward J. Frick

Ronald Fritz

Roy Fuller

Cathy A. Fuss

Richard Gallo

Charles F. Gardephe

Stanley M. Garman

Warren C. Garraway

Wayne E. Georgia

Frederick J. Gerty Jr.

Thomas J. Giammattei

Thomas L. Gibbons

Deborah A. Gilligan

Marilyn Gimber

JamesWilliam Glidden

Tatyana Golikova

Dale E.Gordon

Daniel Gorritz

Stephen Granger

John Arthur Green

Barbara J.S. Greenberg

Paul R. Greenfield

Anthony J.Guizzotti

Charlene R. Gurian

William T. Guyder

Fran Hamblin

Charles T. Hamilton

Michael Hanahoe

George K.Hansen

Robert Hansen

Mark J. Harris

Kelly K. Haskin-Tenenini

William G. Hastback

Lisa A. Hauth

Joseph B. Hawryluk

John Heermance

Eric M. Heidrich

Eric R. Helm

Joseph Hein

George W.Heitzman

Gerald K. Heitzman

Thomas E.Herkenham

Gary P. Hildenbrandt

Stuart Himelstein

Kevin R. Hintz

Maureen D. Hoffa

Paul Hoffman

Keith Hom

Patricia Hopp

Nancy L. Hotaling

Susan M. Hotchkiss

George W. Howard

Kathryn E. Huddleston

Lawrence Hunter

Syed Sajid Husain

James D. Hyde

Thomas Inkpen

Robert A. Inslerman

Richard H. Jacobs

Roberta Jainchill

Fred M. James

Robert P. Jedlicka

Carlynann V. Johnson

Lisette Johnson

Robert B. Jones

Michael J. Kanuk

Lenore Kaufman

Ralph Thomas Keating

Michael J. Keenan

Paula J. Kelly

William M. Kelly

Lee C. Kiernan

Robert C. Knizek

Harold W. Knoch

Michael J. Komoroske

James E. Konopelski

Lydia J. Kosinski

John L. Krajewski

Maureen E. Kunkel

Nancy A. Kunz

Francis P. Lahey

Thomas D. Lang

Sharon Lansing

Michael H. Lashmet II

Anastasia D. Leach

Patrick Leanza

Wayne Lee

Helaine Leib

Andrew D. Lent

Lawrence Lepak

Richard Lepkowski

Mike Lepore

Donnie Lewis

Bonnie Lichak

Gerald H. Liepshutz

John J. Limarzi

Lisa Lite-Rottmann,

Herbert W. Litts III

Robert Loftus

Dennis J. Lucia

Margot Macmillin

Maria C. Macri

Robert J. Mahar

Jeanette R. Maikels

Marilyn A. Major

Haroon C. Mall

William

Stephen J. Mantor

Donald W. Marley

John E. Marsden

Peter J. Martinelli

John Mason

George F. Mattfeld

Michael J. Maybee

Terry Mazula

Lori L. McCaffrey

Susan D. McCormick

Donald Kenneth McCrary

Mark A. McDermott

Michael P. McDermott

Raymond F. McDermott,

Michael J. McGarry

Thomas McGillick

Daniel McHugh

Mary E. Mcintosh

Simcha L.Mdaka

Anthony J. Memoli

Steven B. Merr

Andrew Michael

Thomas G. Middlebrook

Jo Anne Milhausen

Mary S. Miller

Peter R. Miller

Lillian M. Milne

Ivan Mogilefsky

Carl M. Montanino

Frank Montemarano

Kenneth V. Moore

John G. Moriarty

Albert H. Muench

Brian R. Murphy

John P. Murphy

Mario Musso

Lawrence A. Myers

Michael E. Myrick

Jerold A. Nadel

Jack A. Nasca

Vincent P. Nastri

Garry F. Nathan

Kevin Neary

Barry L. Nelson

William G. Niezgoda

Atsuko Noviasky

Scott D. Nurse

Thomas F. Nytch

Eileen M. O’Brien

Julia A. O’Connor

Patricia E. O'Connor

David E. Odell

Leonard J. O’Donnell Jr.

Hector L. Pabon

Benny Palazzo

Ronald Palumbo

Ronald D. Passmore

Mary Jane Peachey

Ronald B. Pelinski

Robert Pennacchia

William Perez DDS

Marcia Alaine Perry

Timothy Perry-Coon

Peter M. Pettit

Diane Phillips

William R. Pippine

Andrew H. Placito

Thomas Plesnarski

William T. Ports

Salvatore F. Priore

John C. Proud

James Quinn

John P. Quinn

Steven I. Rabinowitz

Edward W. Radle

John T. Raffa

Alan Ralph

Maurice Rasheed

Edward Ratowsky

Florence Reed

Patrick J. Regan

Kurt Reineking

Shimon Reit

Susan Rider

Sarah Burns Rios

Keith L. Roberts

Robert J. Rogers

Richard C. Romeo

Edward M. Rudder

Louis A. Rossi

Peter J. Russell

Michael A. Russo

Joseph G. Rutnik

John C. Ryan

Michael J. Ryan

Theodore P. Ryan

Thomas R. Ryan

Ann L. Rymski

Philip Salerno

John S. Sansalone

Patricia Markham Santillo

Ann Sartoris

Fred L. Savino PhD

Steven M. Scharf

Christopher Paul Schmidt

Gale B. Schmidt

Harold Scholl

Michael Schongar

Jeffry W. Schultheis

Robert K. Scott

Therese A. Shady

Howard A. Shafer

Linda M. Shahen

Karam C. Sharma

T. Shivers C/O Mrs Shivers

William M. Shusda

Guy Siegel

Larry Signer

Thomas Silagi

Peter W. Silberstein

Kenneth E. Slade

James Spoor

Karen Spring

Robert J. Stanton

George A. Stasko

Andrew William Stern

Charles J. Stock

Jeffrey E. Stockholm

Donald R. Stott

Donald A. Streeter

Steven P. Struzinsky

Victor A. Stucchi

Nicholas J. Sucic

Gregory P. Sutton

Eleanor Zieske Symeon

Koon S. Tang

Charles W. Teuscher

Marianne J. Bono Theophilis

Phillis J. Thompson

Jay A.Tinter

Robert T. Tobin

Walter Eric Tolcser

Gabriel Tornusciolo

Jay T. Trembly

Aurora Tubianosa

Joseph R. Tuttle

Paul H. Unczur

Clifton J. VanGuilder

James Van Hoesen

Mark E. Van Valkenburg

Thomas R. Verburg

Glenn G. Viele

David Vitale

Philip G. Waite

Vernon B. Walter

Mary A. Wase

Sarah E. Washington

Cheryl M. Wasley

Allan Wasserman

Joshua Weiss

Robert Whitby

Ronald G. Wierzbickl

John R. Williams

Rickard L. Williams

John Windus

Daniel J. Wood

Alan G. Woodard

James P. Zabawa

George Zahurak




[2]
Subsequent references to the claim in the singular will be deemed to refer to the consolidated claim unless otherwise indicated.
[3]
Abelson
has 390 named claimants, Lepkowski has 377 named claimants of which 148 are common to both claims.
[4]
Lepkowski was verified by claimant James E. Close on January 20, 1998 (see claimant's exhibit A). Abelson was verified by Donald Kenneth McCrary on April 29, 1997.
[5]
Overtime compensation provision designated as article 7.14 in the 1991-1995 CBA; article 7.14 in the 1995-1999 CBA and article 7.17 in the 1999-2003 CBA.
[6]
Conclusion of collective negotiations provision was designated as article 47 in 1991-1995 CBA; article 46 in the 1995-1999 CBA and article 46 in the 1999-2003 CBA.