Recent Decisions - June 2010 The following is a summary of some recent OATH decisions decided in June 2010. To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at (212) 442-4900.
The NYC Commission on Human Rights brought a complaint on behalf of a disabled tenant alleging that an apartment building owner and general manager discriminated against the tenant when it denied his request for a modification of the front entrance doors to permit the tenant access in his motorized wheelchair. ALJ Ingrid Addison found that building owner's installation of automatic door openers at the side entrance of the building, just fifty feet from the front entrance, would provide the complainant meaningful access to his residence on a 24 hour per day basis and recommended the complaint be dismissed.Comm'n on Human Rights v. Co-op City of New York (in PDF), OATH Index No. 1831/10 (June 16, 2010).
The prevailing wage law requires the City of New York to pay “laborers, workmen and mechanics” in its employ the prevailing rate of wages and benefits paid in the private sector for work in the same trade in the locality. The City and public sector unions are required to negotiate in good faith to enter into a contract setting the wages and benefits for prevailing wage employees but when negotiations fail, the union may file a complaint with the Comptroller on behalf of its members. The Comptroller is authorized to conduct an investigation to determine the prevailing wages and benefits for the group of employees. The Comptroller has designated OATH to conduct hearings in these matters. OATH issued two decisions in such cases during the reporting period.
ALJ Tynia Richard recommended that Laborers and City Laborers be paid wage and benefits in accord with those set forth in the contract for Local 79 mason tenders. The Office of Labor Relations had contended that cleaners and porters who belong to Local 32BJ are the proper private sector match for the City Laborer and Laborer position. Comparing the work performed by the City Laborers and Laborers to that performed by mason tenders and porters and cleaners, ALJ Richard found the City employees' work more comparable to the mason tenders. Office of the Comptroller ex rel. Local 924 v. Office of Labor Relations (in PDF), OATH Index No. 464/10 (July 2, 2010).
In a proceeding to set the prevailing wages and benefits for City locksmiths and locksmith supervisors, the Comptroller and Local 241 sought a determination that both titles be paid wages and benefits in accord with those paid pursuant to a collective bargaining agreement for locksmiths and supervisors at Columbia University. The Office of Labor Relations argued that the union was not the prevailing one because its members do not comprise 30 percent or more of the locksmiths in New York City. ALJ Addison ruled for the Comptroller and the union. Although the number of Local 241 locksmiths did not independently meet the 30 percent threshold for the title, when combined with Local 348 locksmiths, collectively the union locksmiths exceeded the thirty percent threshold. She also ruled that where two or more collective bargaining agreements are involved, the prevailing wage may be set by picking the predominant one, here the members of Local 241 who work at Columbia University. Office of the Comptroller ex rel. Local 1087 v. Office of Labor Relations (in PDF), OATH Index No. 588/10 (June 23, 2010).
ALJ Kara Miller directed the Police Department to return a car seized in connection with the owner's arrest, where the Department failed to show it properly served the owner with notice of the right to a retention hearing at the time of arrest or subsequently by mail. The Department's “Vehicle Seizure Form" is a five page multi-color document. The pink page, which includes the notice of a right to a retention hearing, should be given to the driver/owner at the time of arrest. Here, the owner claimed she was not given the pink form at the time of arrest, but instead was handed a “Vehicle Seizure Form” (white), which did not contain notice of her right to a retention hearing. ALJ Miller rejected the Department's claim that the owner suffered no prejudice, finding the hearing was not scheduled as early as it would have been had the Department provided timely notice. Police Dep't v. Pizarro (in PDF), OATH Index No. 2625/10, mem dec (June 1, 2010).
A clerical employee at a City hospital was charged with misconduct arising from an incident where she witnessed a mother strike or push her young child. The employee was charged with failure to cooperate with an official investigation because she would not answer questions unless her union representative was present. ALJ Faye Lewis sustained one charge based upon the employee's refusal to answer questions from the hospital's child protective coordinator. The coordinator was conducting a time-sensitive investigation to determine whether reportable child abuse may have occurred and she wanted to find out what the employee had seen, before the mother left the hospital. The focus of the interview was investigatory, not disciplinary, so the employee could be disciplined for refusing to cooperate. In contrast, ALJ Lewis dismissed charges based upon the employee's refusal to answer questions from her supervisors outside the presence of her union representative. The supervisors questioning was primarily focused upon the employee's failure to cooperate and thus it was reasonable for the employee to believe that providing information during this second interview could lead to disciplinary action. Health & Hospitals Corp. (Gouverneur Skilled Nursing Facility) v. Jones (in PDF), OATH Index No. 1100/10 (June 30, 2010).
ALJ Alessandra Zorgniotti recommended that the Department of Correction medically separate a correction officer from employment pursuant to section 73 of the Civil Service Law because the officer has been absent from duty for more than one year due to a non work-related disability. She credited the opinion of the Department's doctor that the officer was not currently fit to return to work because his medical condition was active and that the stresses of returning to work in the jail could trigger another episode with serious consequences. Dep't of Correction v. Anonymous (in PDF), OATH Index No. 1472/10 (June 16, 2010).
A loft tenant who had used the roof for recreational purposes since the inception of his tenancy was told by the owner that he could no longer do so. The tenant made an application to the Loft Board alleging his use of the roof was a service which could not be taken away under the Board's rules. ALJ John Spooner found that the tenant did not show a right to exclusive use of the roof under his written lease or by verbal agreement with the former owner. Based upon past precedent, the ALJ recommended the application be denied. Matter of Burton (in PDF), OATH Index No. 1934/10 (June 30, 2010).
A marriage license applicant appealed the City Clerk's denial of her application based upon a 2002 marriage of a person with the same name and birth date. ALJ Miller noted the similarities in the handwriting on the 2002 documents and the current license application. The applicant had testified that an estranged friend had forged her signature on behalf of another woman on the 2002 application. When told the application must be signed in front of a clerk, the applicant explained that her former friend had taught the other woman how to write exactly like her. ALJ Miller found the applicant's testimony to be incredible and denied the appeal. Office of the City Clerk v. Lewis (in PDF), OATH Index No. 1607/10 (June 23, 2010).