Thursday, December 29, 2005

Appellate Court Affirms Right to Union Representation During Disciplinary Interview

The Appellate Division, Second Department affirmed a transit authority employee’s right to have his union representative present during an interview he believed to be disciplinary. In affirming this right Justice Cozier of the Brooklyn Appellate Court found that this right, first affirmed for private sector employees by the US Supreme Court in NLRB v. Weingarten (and referred to as “Weingarten” rights—no relation to our esteemed president) applied equally to pubic employees in New York.

On April 24, 2001 the New York City Transit Authority received a written complaint from one of its employees alleging that Igor Komarnitskiy, a fellow employee and member of the Transport Workers Union, Local 100 made a racial slur. That same day a supervisor requested that Komarnitskiy prepare a written memorandum, known as a G-2 form, responding to the allegation. Thereafter, Komarnitskiy requested and was allowed to privately meet with a TWU Shop Chair at TWU's office, wherein the TWU Shop Chair assisted him with preparing the G-2 form.

After Komarnitskiy submitted the completed G-2 form to the petitioner, the petitioner requested that he prepare a second G-2 form in the office of its superintendent based upon its concern that the TWU Shop Chair either prepared the initial G-2 form or influenced its contents.

Although Komarnitskiy requested that the TWU Shop Chair be present in the superintendent's office while Komarnitskiy prepared the second G-2 form, the Transit Authority denied such request, requiring him to prepare such form in the presence of management, without any union assistance.

On May 8, 2001, TWU filed with the New York State Public Employment Relations Board an improper practice charge against the Transit Authority alleging that the TA interfered with TWU's ability to represent its members in violation of Taylor Law § 209-a(1)(a) and (c) by failing to recognize the employee's right under such law to have union representation while being questioned regarding an incident which could result in disciplinary action. In response, the TA filed its answer, maintaining, among other things, that a union member has no right to have a union representative present when interviewed by a supervisor regarding an incident occurring in the workplace.

PERB found that the TA had violated the Taylor Law and found that rights guaranteed under Weingarten were equally applicable to public sector employees. Under Weingarten the Supreme Court found that the right to union representation at investigatory interviews was based on the basic right of employees to engage in union and concerted activity under the National Labor Relations Act. It is an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of their rights.

The Second Department affirmed the reasoning in the PERB decision. The Court found that despite some cases holding that individual rights are not specifically protected under the Taylor Law the right of representation was basic to the Act.

The Transit Authority can seek permission to appeal to the state’s highest court, the Court of Appeals.


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woodlass said...

Thanks, JK, for the info on this ruling.

That second pair of eyes and ears - especially if you get someone good at his job and alert - can make all the difference. The rep is a "must-have" in the world of BloomKlein, which paints teachers primarily as enemies.

To see how prejudicial some of the regs are against the teacher, look at A-420 (corp. punishment), where it says: "Take written statements from the victim and all witnesses AS QUICKLY AS practicable." Is the teacher in that list of people you're supposed to quickly get statements from? They can rot in Hell, for all Klein cares about, and sometimes do, not learning of the campaign against them often til weeks later.

A good rep watches like a hawk, often catches things that the distressed teacher is not aware of, and monitors the behavior of the supervisor. We can't afford to lose this.