Published: August 19, 2015
Publication: New York Law Journal
By Ben Bedell
The Appellate Division, First Department, at 27 Madison Ave.
A union contract’s provision shielding a union officer from being fired for sexual harassment is unenforceable because it “conflicts with a well-defined and dominant public policy against sexual harassment in the workplace,” the Appellate Division, First Department, ruled Tuesday.
Justice Dianne Renwick
In an opinion by Justice Dianne Renwick, a unanimous panel said the Transport Workers Union contract with New York City’s Manhattan and Bronx Surface Transit Operating Authority could not be used to protect union official Tony Aiken from dismissal.
The ruling vacated a decision by Justice Eileen Rakower confirming an arbitrator’s award barring discipline of union officials placed on unpaid leave to allow them to conduct union business.
“If left to stand, the arbitration award will send the wrong message—that certain employees at the Transit Authority, mainly those who also performed union-related activities, may be free to create a sexually charged atmosphere in the Transit Authority’s workplaces because any complaints against them will be impeded by the collective bargaining agreement’s protections,” Renwick wrote.
“Knowing that complaints against employees like Aiken will be impeded by the [contract’s] protections, victims of sexual harassment may hesitate to come forward to report opprobrious behavior, thereby undermining the Transit Authority’s ability to promptly remedy such behavior,” Renwick added. “It is also imperative that employers have the unfettered ability to discipline employees such as Aiken in order to both punish the offender and to deter other employees from engaging in such behavior.”
The Transit Authority sought to fire Aiken, a member of the union’s executive board and vice chairman of its Bronx bus division, following a complaint by Tulani Melendez, who was Aiken’s supervisor at the Kingsbridge bus depot in the Bronx.
Melendez alleged that over a period of six months in 2012, Aiken subjected her to unwelcome sexual remarks, undermined her supervisory authority and retaliated against her when she complained.
Melendez said Aiken repeatedly said, in the presence of other employees, “Isn’t she pretty?”
On one occasion, Aiken told Melendez that if he had “a woman like you at home” he “wouldn’t let her leave the house. I would stay in bed all day and oil her down.”
A 2013 investigation by the Transit Authority affirmed Melendez’s claim of sexual harassment but disaffirmed the other charges. Aiken was suspended for 10 days without pay.
When the Transit Authority said it intended to fire Aiken, the union invoked a contract provision barring discipline as long as Aiken was on union leave.
An arbitrator, ruling in 2013 on the issue of what he called the contract’s “diplomatic immunity” provision, found no discipline could be imposed against Aiken.
“By ordering reinstatement on the basis of the agreement’s approved union-paid release time, the arbitrator effectively precludes the Transit Authority from following its policy and thereby satisfying its legal obligations to protect against sexual harassment in the workplace,” Renwick wrote in Phillips v. Manhattan and Bronx Surface Transit Operating Authority, 652740/13.
Arthur Schwartz, co-general counsel of the union, said he would seek leave to appeal.
“This union strongly opposes sexual harassment in the workplace by anyone, be they bosses or union officers. But this court ruled on a stale set of facts,” he said.
“Tony Aiken was found to be not guilty of sexual harassment in a later arbitration on the underlying allegations after this appeal was filed,” Schwartz added. “He was a very vocal advocate for the rights of his fellow union members, including getting a supervisor fired for sexual harassment. The contract protects people like that from retaliation.”
The October 2014 arbitration of Melendez’s accusations found Aiken guilty of “disrespectful workplace behavior.” Arbitrator Stephen O’Beirne, however, ruled that the offense did not “rise to the level of a dischargeable offense under the circumstances of this case.” He noted Aiken’s 24 years of service without any prior disciplinary actions against him.
The Transit Authority was represented by deputy general counsel Lewis Finkelman and staff attorney Timothy O’Shaughnessy.
The Transit Authority did not respond to a request for comment Tuesday.