Labor & Employment Law

Request for union representation

Request for union representation
Local 100, TWU and NYC Transit Authority, 35 PERB 4563

PERB Administrative Law [ALJ] Judge Angela M. Blassman ruled that the New York Transit Authority violated Section 209-a.1(a) and (c) of the Civil Service Law [the Taylor Law] when it rejected an employee's request that a union representative be present when he was asked to prepare a written statement in the presence of Authority supervisors.

Authority supervisors asked Igor Komarnitskiy to submit a written report in response to a

complaint that he made a "racial remark" to another Authority employee. Although Komarnitskiy submitted the report, the supervisors were concerned that a union represen­tative "may have improperly influenced" Komarnitskiy and insisted that he complete a second report without the union representative being present.

Noting that "[t]he Board has yet to determine whether a public employer engages in unlawful interference under the [Taylor] Act when it refuses an employee's request for union representation during questioning that an employee reasonably believes might result in discipline," ALJ Blassman said that under the National Labor Relations Act [NLRA] "a private sector employee has a statutory right `to refuse to submit without union representation to an interview which he reasonably fears may result in his disci­pline.'"

Accordingly, said the ALJ, "[a]ny adverse consequences suffered by an employee due to a refusal to cooperate in an interview without representation constitutes unlawful interfer­ence and a violation of Section 8(a)(1) of the NLRA."

Commenting that other administrative law judges have found that the Taylor Law gives public employees a parallel right, "while contrary decisions have been issued by the Director and Assistant Director," ALJ Blassman held that "the reasoning in support of finding a parallel right under [the Taylor Law] is more persuasive."

The ALJ directed that the Authority (1) "cease and desist" from requiring employees to submit to questioning without union representation when an employee has requested such representation and there is a reasonable basis to believe that the questioning might lead to discipline and (2) to remove the second report completed by Komarnitskiy from his personnel file.

Section 209-a.6 of the Civil Service Law provides that "[i]n applying this section, fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent."

Full post as published by New York Public Personnel Law on June 16, 2008 (boomark / email).