Published: August 18, 2015
Publication: Daily News
By Barbara Ross
A union official accused of sexually harassing his female supervisors in a Bronx bus depot cannot use his position in the Transport Workers Union to avoid disciplinary charges, a Manhattan appellate court ruled Tuesday.
The panel of five judges said they had to make a “relatively rare” decision and overturn an arbitrator’s ruling on the matter because to do otherwise would “send the wrong message” by negating public policy that makes sexual harassment illegal in the workplace.
Tony Aiken, a bus operator, was hit with harassment charges in December 2012 by a bus dispatcher, Tulani Melendez, who said he was constantly making sexual innuendos and humiliating her with his comments in the Kingsbridge Bus Depot.
Court records show, for example, that Melendez claimed Aiken told her that she was “beautiful” and if he had “a woman like that at home, I wouldn’t let her leave the house. I would stay in bed all day. I would oil her down.”
In January 2013, the TWU took Aiken off the Transit Authority payroll, where he was paid full time to do union business, and put him on the union payroll. He is second vice chairman of the TWU’s Bronx Surface Division.
After an arbitrator ruled that Aiken should be protected from discipline because he was on the TWU payroll and a lower court judge agreed, the Transit Authority appealed.
The appellate judges acknowledged that courts rarely challenge an arbitration ruling but, they said, this is “one of the relatively rare cases” where an award — “reintstating a sexual harassment offender — runs counter to strong public policy against sexual harassment in the workplace.”
“If left to stand, the arbitration award will send the wrong message — that certain employees at the Transit Authority, mainly those who also perform union related activities, may be free to create a sexually charged atmosphere,” they said.
“This decision supports NYC Transit’s contention that no employee is shielded from discipline if that employee is engaged in sexual harassment,” said MTA spokesman Kevin Ortiz in a statement.
Labor lawyer Arthur Schwartz, who represented the union, said TWU will appeal, even though all the decision means is that Aiken — if he returns to the TA payroll — would be suspended for 10 days.
Schwartz said the arbitrator Stephen O’Beirne reviewed the allegations in the case and O’Beirne tossed the sexual harassment charge.
O’Beirne said Aiken’s “inappropriate sexist remarks” violated the TA’s “Respectful Workplace Policy” and he recommended only a 10-day suspension and sensitivity training, which Aiken did.
Schwartz said the union will appeal because there is an important principle involved — that arbitrators, not the courts, be the ultimate judges of the facts in contract related disputes.
Schwartz said the appellate divisions in Manhattan and Brooklyn have overturned four arbitration awards in the past and all four times, the state highest Court of Appeals overturned them.