IN RE: Application of Madeline E. STONE

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Madeline E. STONE, et al., Petitioners-Appellants, For a Judgment, etc., v. John E. SWEENEY, as Commissioner of Labor, et al., Respondents-Respondents.

Decided: November 18, 1999

SULLIVAN, J.P., NARDELLI, MAZZARELLI, LERNER and BUCKLEY, JJ. James M. Williams, for Petitioners-Appellants. Mary Hughes, for Respondents-Respondents.

Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered July 16, 1998, which denied petitioners' application pursuant to CPLR article 78 to require respondents, officials of the New York State Department of Labor (DOL), to permit the National Employment Law Project, Inc. (NELP) to be present, as petitioners' designated representative, at worksite inspections and at conferences held to investigate petitioners' complaints filed with DOL pursuant to the Public Employee Safety and Health Act (Labor Law § 27-a) (PESHA), and dismissed the petition, unanimously affirmed, without costs.

 Petitioners, public assistance recipients required to work for public employers as part of a Work Experience Program (WEP) pursuant to Social Services Law § 336-c, seek to compel DOL to allow their chosen representative, NELP, to be present for all phases of DOL's processing of petitioners' complaints of alleged safety and health violations at their respective workplaces pursuant to PESHA, made applicable to WEP workers by Social Services Law § 330(5).   We agree with the IAS court that DOL's refusal to permit NELP to be present for the workplace inspections DOL conducted to investigate the complaints was consistent with the express terms of PESHA, which provides that employees shall be represented on such inspections by an “authorized employee representative” (Labor Law § 27-a[5] [b] ), a term defined for purposes of the statute to mean only employees and union representatives (Labor Law § 27-a[1] [c] ).  Such restriction of the right to attend the inspections to persons who are otherwise entitled to be present at the workplace is rationally related to the legitimate governmental objective of limiting the potential for disruption of the workplace by the intrusion of outsiders, and thus is neither arbitrary and capricious (see, Matter of Hylton v. Nyden, 39 N.Y.2d 61, 382 N.Y.S.2d 735, 346 N.E.2d 536;  Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321;  Matter of Lippman v. Public Employment Relations Bd., 263 A.D.2d 891, 694 N.Y.S.2d 510, 515), nor offensive to the Equal Protection Clauses of the Federal and State Constitutions (see, Empire State Assn. of Adult Homes v. Perales, 142 A.D.2d 322, 324, 325, 535 N.Y.S.2d 841, lv. denied, lv. dismissed 74 N.Y.2d 614, 547 N.Y.S.2d 848, 547 N.E.2d 103, 74 N.Y.2d 714, 543 N.Y.S.2d 399, 541 N.E.2d 428, citing Trump v. Chu, 65 N.Y.2d 20, 25, 489 N.Y.S.2d 455, 478 N.E.2d 971, appeal dismissed 474 U.S. 915, 106 S.Ct. 285, 88 L.Ed.2d 250).   We have considered petitioners' other contentions and find them to be without merit.