New York City Transit Authority subject to local laws that do not interfere with its providing transportation

New York City Transit Authority subject to local laws that do not interfere with its providing transportation
Tang v New York City Tr. Auth., 55 AD3d 720

Kim Tang sued the NYC Transit Authority to recover damages for alleged retaliation by the Transit Authority in violation of the New York City Administrative Code barring unlawful discrimination.

Supreme Court dismissed Tang’s complaint based on the Authority’s claim that Public Authorities Law §1266(8) exempted it from all local laws affecting its activities and operations.

Tang appealed and the Appellate Division overturned the lower court’s ruling, holding that Section 1266(8) did not exempt the Authority from all local laws but only those laws "conflicting with [Title 11 of the Public Authorities Law] or any rule or regulation" of the Transit Authority.

Section 1266(8) authorizes the Authority to “do all things it deems necessary, convenient or desirable to manage, control and direct the maintenance and operation of transportation facilities, equipment or real property operated by or under contract, lease or other arrangement with the authority and its subsidiaries, and New York city transit authority and its subsidiaries.”

Citing Bogdan v New York City Tr. Auth., 2005 US Dist LEXIS 9317, the Appellate Division concluded that language of Section 1266(8) indicates the Legislature “did not intend to prohibit the application of all Local Laws to the [Transit Authority], but only such laws that interfered with the accomplishment of its transportation purposes."

As compliance with the provisions in the New York City Administrative Code against unlawful discrimination in employment would not interfere with the function and purpose of the Transit Authority, the court vacated the Supreme Court’s dismissal of Tang’s petition.

The full text of the decisions is set out on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07903.htm

 

Employee charged with being disrespectful to another

Employee charged with being disrespectful to another
Health & Hospitals Corp. (Metropolitan Hospital Center) v. McCaskey, OATH Index No. 2195/08

ALJ Faye Lewis recommended dismissal of a charge that a special officer was disrespectful to a doctor in a psychiatric emergency room when he remarked "You're trying to kill me today". The statement, made when the doctor brought three patients to the emergency room at one time, was essentially a complaint that the emergency room was overcrowded and understaffed.

Although the officer's "choice of language was not ideal," in the absence of any showing that the brief exchange disrupted hospital operations, misconduct was not established.

Questions concerning the prosecution of grievances and whether the compliant is grievable is for the arbitrator to resolve

Questions concerning the prosecution of grievances and whether the compliant is grievable is for the arbitrator to resolve
Hartsdale Fire Dist. v Greenburgh Uniform Firefighters Assn., Inc., Local 1586, IAFF, AFL-CIO, 55 AD3d 731

The collective bargaining agreement between the Hartsdale Fire District and the Greenburgh Uniform Firefighters Association contained a broad arbitration clause providing for the arbitration of disputes "concerning the meaning, application or interpretation of this Agreement, which remains unresolved after presentation to, and processing through the grievance procedure."

Hartsdale resisted the Association’s demand for arbitration, contending that (a) the underlying grievance was not subject to arbitration; that the Association had not satisfied the procedural steps with respect to the grievance procedure; and (3) that only a unit member, rather than the Association, could file a grievance and demand arbitration.

Supreme Court dismissed Hartsdale’s petition seeking a permanent stay of arbitration and the Appellate Division affirmed the lower court’s holding.

The Appellate Division said that there was “a reasonable relationship between the subject the disputes, which involves the [Association’s] grievances over the [Hartdale’s] directives that the [Association’s] union members work and train in a fire-damaged firehouse before the firehouse was fully repaired, and the general subject the collective bargaining agreement.” Further, said the court, the CBA does not specifically exclude from arbitration the subject the grievances that concern public health and the safety of public employees. Accordingly, said the court, the question of the scope of the substantive provisions of the CBA is a contract interpretation and application reserved for the arbitrator.

As to Hartsdale’s claim that the Association failed to comply with a condition precedent before demanding arbitration, the Appellate Division pointed out that, in general, “disputes over the parties' adherence to the grievance procedure set forth in the parties' CBA is for the arbitrator to determine, not for the courts.”

Finally, said the Appellate Division, Hartdale’s claim that “grievances must be pursued only by individual employees, rather than by the [Association], especially in light of the [Association’s] contention that [Hartsdale] has a past practice of hearing grievances pursued solely by the [Association], is a matter for the arbitrator to resolve.”

As to Hartsdale’s representation that only the aggrieved employee could file a grievance, in general, making a decision to file a grievance typically is viewed as vested in the employee organization and not an individual member of the negotiating unit. Further, the Association argued that it “owned the right to go to arbitration” which is the traditional view in such situations.

In Hickey v Hempstead Union Free School District, 36 A.D.3d 760, the Appellate Division said that a union member generally has no individual rights under a collective bargaining agreement that he or she can enforce against an employer. In the absence of a contract provision stating otherwise, an employee may proceed directly against the employer only when the union fails in its duty of fair representation and "In order to establish a breach of the duty of fair representation, it is necessary to show that the union's refusal to demand that the grievance go to arbitration was arbitrary, discriminatory, or in bad faith."

As to the alleged “past practice” whereby only individuals filed grievances, it is unlikely that such a practice would be viewed as a union’s abandoning or forfeiting its right to file grievances and demand arbitration with respect to alleged violations of the collective bargaining agreement.

The full text of the Hartsdale decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07903.htm

The full text of the Hickey decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_00493.htm