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State law gives a municipal worker the right to refuse a meeting with an employer that might result in discipline unless the worker has a union representative present, an appeals court in Brooklyn has ruled. The unanimous ruling from the Appellate Division, 2nd Department, referred extensively to a U.S. Supreme Court decision in its interpretation of New York state’s Public Employees’ Fair Employment Act �202, known as the Taylor Law. While the Taylor Law does not explicitly address the question, the Supreme Court’s ruling in National Labor Relations Bd. v. Weingarten, 420 US 251 (1975), has granted that right to private sector employees who are union members. In Matter of New York City Transit Authority v. New York State Public Employment Relations Board, 2003-05268, the 2nd Department found that the Taylor Law “implicitly extends a Weingarten-type right” to public sector employees. Justice Barry A. Cozier, writing for the court, emphasized the purpose of the Taylor Law — to promote cooperation between the government and its own employees. “It can hardly be said that the denial of a public employee’s request for representation during a meeting with management that the employee reasonably believes might result in disciplinary action furthers this purpose,” Cozier wrote. “Rather, such refusal causes friction between public employers and their employees, which may cause an interruption of government operations.” The dispute in Matter of New York City Transit Authority centered on a complaint from an unidentified transit employee, who alleged that Igor Komarnitskiy, a fellow employee and member of the Transport Workers Union Local 100, made a racial slur. The Transit Authority asked Komarnitskiy to prepare a written memorandum, known as a G-2 form, responding to the allegation. Komarnitskiy subsequently asked, and was allowed, to meet with the shop chair of his union. The chair helped him complete the G-2 form. After Komarnitskiy submitted the form, however, the Transit Authority asked him to prepare a second one on his own. The agency said it was concerned that the chair may have prepared the first form or influenced its contents. The union responded to this request by filing a complaint with the New York State Public Employment Relations Board (PERB). The union said the Transit Authority had violated the Taylor Law by failing to recognize an employee’s right to union representation in a potential disciplinary matter. The Transit Authority countered that union members had no right to have a union representative present during interviews about a workplace incident. In July 2002, an administrative law judge ruled that the Transit Authority had violated the Taylor Law. The judge based this decision on the Weingarten ruling, concluding that the Taylor Law afforded similar rights to public sector employees. The Transit Authority continued with its challenge, but Brooklyn Supreme Court Justice Joseph J. Dowd found that he was limited to a finding of whether the Public Employment Relations Board’s interpretation of the Taylor Law was arbitrary and capricious. He ruled it was not. On appeal, the 2nd Department affirmed the ruling. It rejected arguments that the board had usurped the role of the Legislature. “Contrary to the petitioner’s contention, the relevant inquiry is not whether PERB encroached on the role of the Legislature, but rather whether its interpretation of Taylor Law �202 was permissible,” Cozier wrote. The judge added: “Accordingly, in light of the foregoing, we hold that Taylor Law �202 implicitly extends a Weingarten-type right of union representation to public sector employees, and that PERB’s interpretation of such provision is permissible and should not be disturbed.” Stuart Lichten of Kennedy, Schwartz & Cure represented the Transport Workers Union. Robert K. Drinan and Martin B. Schnabel represented the Transit Authority. Sandra M. Nathan and Gary Johnson represented the Public Employment Relations Board.

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