Razzle Dazzle
Judges Lose Labor Appeal

By RICHARD STEIER

The perils to union members when conservative elected officials appoint "strict constructionists" to the judiciary were vividly illustrated in last week's ruling by the State Court of Appeals that the Taylor Law does not guarantee employees the right to representation at conferences where they might face agency discipline.

The 4-2 ruling by the state's top court, which overturned two lower-court findings upholding a decision by the Public Employment Relations Board, was decided by former Governor Pataki's appointees. The court split exactly as it had on the Campaign for Fiscal Equity ruling in December that reversed lower-court rulings and ignored the recommendations of an expert panel on the amount needed to place city public schools on even footing with others throughout the state.

Final Appointee Pivotal

In both cases, the difference-maker was Mr. Pataki's final choice for the Court of Appeals, Eugene Pigott Jr., who in October had replaced George Bundy Smith, a member of the court's liberal wing whose term had expired last summer. Had Judge Smith still been on the court, the vote likely would have been 3-3, in which case the lower-court rulings would have stood.

PATAKI'S LASTING LEGACY: While Chief Judge Judith Kaye and Wardens union leader Sidney Schwartzbaum decried a Court of Appeals ruling concerning employees' right to union representation at disciplinary conferences, the decision suggested a conservative majority of ex-Governor Pataki's appointees has coalesced, making it more difficult for unions to prevail in the court system for at least the next eight years.

Mr. Pigott sided with the other Pataki appointees: Victoria A. Graffeo, Susan Phillips Read, and Robert S. Smith, who wrote the majority opinion in last week's ruling.

Those opposed were the two judges tapped to the court by former Gov. Mario Cuomo: Carmen Beauchamp Ciparick and Chief Judge Judith Kaye, whose dissenting opinion was longer than the majority decision. (The newest member of the court, Theodore T. Jones, who was appointed by Governor Spitzer earlier in the month, did not take part in either the case hearings or the deliberations.)

The case involved a Car Inspector with New York City Transit, Igor Komarnitskiy, who had been accused of uttering a racial slur out of anger at being asked to show a pass before entering a train yard. Because management believed he had been coached by a representative of Transport Workers' Union Local 100 in preparing a written response to the charge, it ordered him to come to a supervisor's office and submit a new one without a union rep present.

Local 100 filed an improper practice charge with PERB asserting that Mr. Komarnitskiy's rights based on a U.S. Supreme Court ruling known as Weingarten had been violated. The high-court ruling confined itself to private-sector cases in deciding that unionized employees were entitled to have a representative present for any conference that could lead to disciplinary charges, but PERB decided more than four years ago that the ruling should be extended to state employees as well. (As a subsidiary of the Metropolitan Transportation Authority, New York City Transit staffers are considered state workers.)

PERB's decision had a ripple effect even before it was upheld by both a State Supreme Court Justice and an Appellate Division panel. In February 2003, the city Board of Collective Bargaining cited the PERB ruling in reversing its position in previous cases and concluding that the Correction Department violated the rights of a Deputy Warden who refused to sign a discipline-related document without a union rep present to advise her.

Reversals Rare

The policies of both the city and state adjudicating agencies came tumbling down with last week's decision. Generally, courts will only overturn an administrative body's ruling when they conclude that the agency was arbitrary and capricious in reaching its decision. This means reversals aren't issued even if the judges involved disagree with the administrative ruling, provided there was a reasonable basis for it. Both lower courts had indicated in their decisions that they were upholding PERB's ruling out of deference to its expertise in this kind of matter.

Judge Smith ruled, however, that PERB erred when it concluded that the Taylor Law gave public employees the same protection afforded to private-sector workers under the Weingarten decision.

The relevant position of the Taylor Law, Section 202 of the State Civil Service Law, provides that "Public employees shall have the right to form, join and participate in ... any employee organization of their own choosing."

Judge Kaye wrote in her dissent that this language implicitly assures employees of the right to union counsel when facing discipline, since that is one of the benefits conferred by belonging to a labor organization. She stated that union "representation in the circumstances of an employee's reasonable fear that an investigatory interview may result in discipline is consistent with the 'most fundamental purposes' of the Taylor Law."

Judge Smith in the majority opinion pointed out, however, that the Taylor Law does not contain language pertaining to "mutual aid and protection" that was a key component of the Supreme Court's ruling in the Weingarten case. And, he added, "The right to union representation at disciplinary interviews ... is not inherent in the right to participate in a union."

Cites Amendment

As proof that this protection wasn't provided under the Taylor Law, he noted the 1993 amendment to Section 75 of the Civil Service Law granting employees the right to union representation if they believed they faced discipline. This amendment would not have been necessary, Judge Smith wrote, if such protection was already provided under the Taylor Law.

The Taylor Law was promulgated in 1967, eight years before the Weingarten case established that right, but it could have been amended since then if the Legislature and the Governor deemed it appropriate. The Catch-22 of last week's ruling was that a bill that explicitly would have granted employees full Weingarten rights was vetoed last year by Mr. Pataki on the grounds that it wasn't necessary because of the PERB ruling.

Judge Smith found that the language in Section 75 did not entitle Local 100 to bring an improper practice charge on Mr. Komarnitskiy's part; it merely barred New York City Transit from using any statements he made - and the evidence such statements allowed management to gather - against him.

'Can't Deny Their Rights'

Judge Kaye disagreed, noting that another section of the Civil Service Law makes it an improper practice for a public employer "to interfere with, restrain or coerce public employees in the exercise of their rights" under the Taylor Law.

"The rationale for ensuring that an employer does not 'interfere' with a bargaining unit member's representation before the formal filing of charges is to attempt to balance the equities between the power of the employee and the vulnerability of the employee," Ms. Kaye wrote.

Her dissent concluded, "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."

Top union officials began lobbying for such a bill almost immediately after the Court of Appeals ruling. In the interim, said Assistant Deputy Wardens'/Deputy Wardens' Association President Sidney Schwartzbaum, "I would advise my members in accordance with Civil Service Law that you don't have to answer any questions without a union official or attorney present."

His union is among the city labor groups that has specific language in its contract spelling out the guidelines under which members can be questioned, but one clause of the contract stipulates that those guidelines are subject to revision based on "final decisions of the Supreme Court of the United States and the Court of Appeals of the State of New York."

'An Attack on Unionism'

"I'm flabbergasted," Mr. Schwartzbaum said of last week's ruling. "I think this is really an attack on unionism."

A registered Republican for much of his adult life, the Wardens union leader a decade ago became scathingly critical of the manner in which political affiliation affected promotions and discipline in the Correction Department when Rudy Giuliani was Mayor and the upper echelon of the jail system's management ran a political operation for top GOPers including Mr. Giuliani and Mr. Pataki.

At the Federal level, for more than 25 years it has been obvious how political ideology could lead to judicial appointments that were detrimental to the interests of employees and their unions in areas from labor organizing to worker safety. Ronald Reagan, George Bush the Elder and the current President all railed against what they termed "activist judges" and sought markedly more conservative "strict constructionists" for circuit court positions as well as Supreme Court judgeships.

No Relief in Sight

The Court of Appeals ruling, Mr. Schwartzbaum observed, brought home the consequences of such thinking at the local level. And since the Pataki appointees are all scheduled to serve at least through the end of 2014, the unions could be in for at least seven years of bad luck in the judicial system.

Which was why Mr. Schwartzbaum, assessing the situation, remarked, "Right now, I'm very disenchanted with the Republican Party."

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