No Guarantee Of Union Help In Discipline Cases; Appeals Court Ruling Spurs Bill to Alter Taylor Law

No Guarantee Of Union Help In Discipline Cases;
Appeals Court Ruling Spurs Bill to Alter Taylor Law


New York State's highest court ruled Feb. 20 that public employees don't have an automatic right to union representation during conferences with their supervisors that could lead to disciplinary action.

RANDI WEINGARTEN: 'Astounded' by ruling. The 4-2 decision surprised and angered union officials, who have long argued that their members are entitled to that privilege under the Taylor Law. Private-sector employees are covered by the National Labor Relations Act, while other public-sector workers outside New York have statutes or Executive Orders covering them as well.

Right Not Guaranteed

But the distinctions in the measures are "not mere random variations," Judge Robert S. Smith wrote for the majority. That opinion concluded that "nothing in the text of the Taylor Law suggests that a Weingarten right is given by the statute itself."

The decision reversed two lower-court rulings upholding a finding in favor of Transport Workers' Union Local 100 by the Public Employment Relations Board. More than four years ago, the board ruled that state workers were entitled to Weingarten rights, which are based on a U.S. Supreme Court ruling originally limited to private-sector workers.

DENIS M. HUGHES: Pushes bill to protect. "A lot of us are astounded by the misdirection of the Court of Appeals," said Randi Weingarten, president of the United Federation of Teachers, who also serves as the chairwoman of the Municipal Labor Committee.

Many public-employee unions have negotiated specific provisions in their contracts granting them the right to union or legal assistance during investigatory interviews. "The decision has no applicability to our members," Ms. Weingarten remarked. "If an educator is called down for a disciplinary hearing, that educator has the right to a union rep."

The two largest state-employee unions, the Civil Service Employees' Association and the Public Employees' Federation, have similar protections in their pacts.

Chief Judge Fears Impact

Notably, Chief Judge Judith S. Kaye and Judge Carmen Beauchamp Ciparick opposed last week's decision.

Ms. Kaye, who wrote the dissenting opinion, stated that the Taylor Law was designed to promote "harmonious labor relations in the public sector." She cautioned that the majority ruling would have the opposite effect. "Today's decision will, I fear, foster dissonance," she said.

JEROME LEFKOWITZ: Sees need for amendment. At the end of her 13-page opinion, she suggested that lawmakers work to rectify the situation. "My hope is that the Legislature will enact, and the Governor will sign into law, an amendment to make explicit in the Taylor Law what to my mind is now implicit," she stated.

In response, as this paper hits newsstands Feb. 27, both houses of the State Legislature were set to introduce a measure designed to grant Weingarten rights to all public employees, said State AFL-CIO President Denis M. Hughes.

"Last year that legislation passed both houses," he pointed out. "But the Governor vetoed it because he thought it was already in prior case law."

TWU Got Insurance

The Court of Appeals decision will also not directly affect members of TWU Local 100, which brought the initial improper practice charge that led to the ruling. The TWU negotiated additional protection rights in its last contract.

BILL HERBERT: 'Court mixed apples and oranges.' The case involved a supervisor who accused New York City Transit Car Inspector, Igor Komarnitskiy, of using a racial epithet when, in his native language, he complained about having to show his pass before entering a train yard in April 2001.

Management asked him for a written response. Mr. Komarnitskiy turned to a union shop chair for help. Suspecting that his union rep influenced the substance of his response, the agency ordered Mr. Komarnitskiy to write another letter by himself behind closed doors in the superintendent's office. The union shop chair and three other labor representatives who came later were denied access to the room, despite their demands.

Two weeks after the incident, the TWU filed an improper practice complaint charging that the agency interfered with Mr. Komarnitskiy's employee rights.

3 Wins Before Reversal

A PERB Administrative Law Judge ruled in favor of the union. That decision was later upheld by a State Supreme Court Justice and an Appellate Division panel. They all concluded that the agency had in fact violated Mr. Komarnitskiy's Weingarten rights, which entitled him to a union rep during the conference with his supervisor.

That case law was established in 1975 by the U.S. Supreme Court. In that matter, the nation's highest court ruled in favor of a lunch-counter worker named Weingarten who was accused of stealing.

After bursting into tears, she explained to her boss that she had thought she was allowed to eat lunch without paying, because that was the policy at a different branch where she had recently worked. But she was denied a union rep during the interview, and was pressed to sign an incriminating statement. Her manager only later learned of the "free lunch" policy at the other location.

The U.S. Supreme Court ruled that the employer committed an unfair labor practice and based its determination on the text of the NLRA.

Public employees in New York, however, are governed by the Taylor Law. That measure, named after George W. Taylor, was put into effect in 1967 and predated the Weingarten decision, noted the new PERB Chairman Jerome Lefkowitz, one of the crafters of the Taylor Law.

'Wasn't on Our Horizon'

"We were setting up a process," he said last week during a phone interview. "It wasn't something on our horizon. That was something that came up later after the Supreme Court decision."

Last week's Court of Appeals decision may have greater ramifications. Mr. Lefkowitz and other attorneys familiar with the case noted that in the past, the state's courts traditionally deferred to PERB and other administrative agencies. "It's fairly sobering," said one veteran arbitrator, referring to the court decision. "It's not what I think anybody was expecting."

The insider added, "When we are interpreting our own law, the court has generally given us some deference, with the understanding that we are best suited to interpret that language. But here the court didn't do that."

The majority decision noted that in 1993 the State Legislature amended Section 75 of the Civil Service Law to expand workers' rights. But Judge Smith's opinion stated that the law change gave employees "a kind of Weingarten right, but one different from the right that PERB and TWU ask us to find in the Taylor Law."

Bill Made Distinction

It pointed out that the supporting memorandum attached to the 1993 bill stated: "New York State public employees do not have the same protection enjoyed by private-sector employees during interviews and discussions by their employers."

William A. Herbert, CSEA's senior counsel, argued that the court took that amendment to the Civil Service Law out of context. According to Mr. Herbert, who wrote an amicus brief in support of the earlier PERB ruling, that section of the law has been changed multiple times over the years to fix various defects that have surfaced.

"The Legislature has repeatedly added language to cover flaws of that law," he asserted. "The majority took that legislative action and twisted it to get their result to knock out what PERB ruled. What the court essentially did was mix apples and oranges."

He argued that having a union representative present during a disciplinary interview should be a fundamental right. "In this day and age, it's shocking that a majority of the Court of Appeals would conclude that a simple right to have a union representative present during a disciplinary interview is not protected by the Taylor Law," he asserted.

'Changes the Dynamic'

The decision, Mr. Herbert speculated, will change the way future lower-court decisions are handled. "It's a standard principle that the courts defer to administrative agencies," he said. "If the Appeals Court is now going to overrule those administrations, it will change the dynamic of administrative law. It creates a bad precedent in that it's not granting deference."

But Mr. Lefkowitz, who previously worked with Mr. Herbert at CSEA, said that he believed the ruling applied only to a specific case. "I don't think it has implications for the broad spectrum of the cases PERB decides," he observed. "I don't see that decision as a significant change in the direction that PERB goes. They just said we made a mistake here."

In her dissenting opinion, Judge Kaye wrote that the Taylor Law implicitly assures employees the right to union counsel when facing discipline, since that is one of the privileges tied to belonging to a labor organization. She said that right was "consistent with the most fundamental purposes" of the Taylor Law.

But the majority decision ruled that the Taylor Law does not include language tied to "mutual aid and protection" that was a major factor in the Weingarten case. "The right to union representation at disciplinary interviews ... is not inherent in the right to participate in a union," Judge Smith stated.

As a result, under Section 75 of the Civil Service Law, NYC Transit was merely barred from using against him any statements Mr. Komarnitskiy made during the meeting, he added.

'Shows Glaring Inequities'

Ed Watt, Local 100's secretary-treasurer, said the decision "draws attention to the glaring inequities" in the Taylor Law. "It's disappointing the courts are not on the side of the working people, and they are certainly not on the side of the unions," he said during a phone interview. "It's all part and parcel with the improper practices that management is allowed to get away with under the Taylor Law. When management can violate the Taylor Law flagrantly with no penalties, we absolutely have to amend the law."

Mr. Lefkowitz said changes were likely. "I feel quite certain that there will be a bill put before the Legislature by people who support PERB's decision to make this law," he remarked, referring to adding Weingarten rights.

Asked whether he would support such an amendment, he responded, "I think it's not unlikely we would, but I have to consult with the [other] two [PERB] members to decide with them."

He called the issue "a priority for us to resolve."