Orchard Park Central School Dist. v. Orchard Park Teachers Ass'n

• Decision Date: 16 January 1976
• Citation: 50 A.D.2d 462,378 N.Y.S.2d 511
• Parties: , 92 L.R.R.M. (BNA) 2247, 80 Lab.Cas. P 53,941 ORCHARD PARK CENTRAL SCHOOL DISTRICT, Respondent, v. ORCHARD PARK TEACHERS ASSOCIATION and Thomas Rivers, Individually and as President and Negotiator for the Orchard Park Teachers Association, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 511

378 N.Y.S.2d 511

50 A.D.2d 462, 92 L.R.R.M. (BNA) 2247,

80 Lab.Cas. P 53,941

ORCHARD PARK CENTRAL SCHOOL DISTRICT, Respondent, v. ORCHARD PARK TEACHERS ASSOCIATION and Thomas Rivers,

Individually and as President and Negotiator for

the Orchard Park Teachers Association,

et al., Appellants.

Supreme Court, Appellate Division, Fourth Department.

Jan. 16, 1976.

Bernard F. Ashe, Albany (Emanuel Tabachnick, Williamsville, of counsel), for appellants.

Terrance H. McCarville, Buffalo, for respondent.

Before MARSH, P.J., and MOULE, MAHONEY, GOLDMAN and WITMER, JJ.

OPINION

MOULE, Justice:

Defendants appeal from two orders, one of which temporarily restrained them from conducting a strike against the plaintiff and the other of which held them in contempt of court under section 750 of the Judiciary Law.

The Orchard Park Teachers Association (Association) is the duly authorized collective bargaining agent for the teaching staff (Teachers) of the Orchard Park Central School District (District). In March, 1975, more than three months prior to the expiration of the collective bargaining agreement then in effect between the Association and the District, negotiations were commenced toward the formulation of a new contract. Discussions continued through the summer but agreement was not reached.

The negotiations centered on three issues. The Teachers sought to limit the District's right under certain circumstances to transfer them from one school building to another. They also demanded a just cause dismissal policy during the first six months of employment and a substantial increase in both their base pay and extracurricular activity pay.

The negotiations were still in progress when classes resumed in September and although the Teachers started work at the beginning of the term, on October 3, 1975 a strike vote was taken. On October 12 a fact finder, who had been called into the dispute, issued a report which was generally more favorable to the District's position than to the Teachers. ¹ The Teachers subsequently went on strike on October 14 and only 30 out of 310 reported for work.

By order to show cause dated October 14 the District sought a preliminary injunction and a temporary restraining order prohibiting further strike activities. At that time the court granted the application for the temporary restraining order and made the application for the preliminary injunction returnable the following day. The Teachers Association, eight of its officers and members, John Doe and Mary Roe as striking teachers whose names were not known, and Ronald Uba, a representative of the New York State United Teachers, Inc., were named as defendants. The action was subsequently discontinued as to Uba. On October 16 the District obtained and served another order to show cause returnable October 21, requesting the court to punish the Association and its individual members for contempt.

On October 17, 1975 the Association and the individually named Teachers obtained and served an order to show cause, returnable on October 20, why the temporary restraining order and the complaint upon which it was issued should not be dismissed. The following day the Association also moved for an order vacating the contempt proceeding. On October 24 Special Term issued an order granting plaintiff's application for a preliminary injunction. In it the court directed the Association and the Teachers to refrain from participation in any form of strike or related activity and to return to work forthwith. Nevertheless, attendance records maintained by the District showed no increase whatsoever in the number of Teachers reporting for work following either of the two court directives.

On October 28, after the strike had been in progress for two weeks, a hearing on the contempt charge was held. Following two days of testimony the Association and eight of its individual members were adjudged guilty of criminal contempt. The court found that a strike had been in progress since October 15. The Association was fined $5,000 for its violation of the temporary restraining order on October 15 and 16 and was directed to pay $1,000 per day for each day its violation of the order continued. Each of the eight individual Teachers was sentenced to 30 days in jail and three of them who had been observed picketing were fined $250 each. On October 30, after the eight individual Teachers had spent several hours in jail, an order was granted staying the enforcement of the contempt adjudication pending determination of this appeal.

Defendants raise 11 points in attacking their convictions. First, defendants maintain that the District's action in seeking a preliminary injunction was illegal because it was not authorized by the Board of Education at a public meeting. Section 211 of the Civil Service Law, a subdivision of Article 14 commonly known as the Taylor Law, states that whenever it appears that public employees are either in the process of striking or are about to strike, the chief executive officer of the governmental unit involved, through its chief legal officer, or the chief legal officer alone, shall forthwith apply to the Supreme Court for an injunction prohibiting strike activity. If the persons against whom the injunction is directed do not comply, Civil Service Law, § 211, further provides that the chief legal officer shall forthwith apply to the Supreme Court to punish the violation under Judiciary Law, § 750.

This statute speaks in mandatory terms and is aimed at bringing a speedy end to illegal public employee strikes. To read into it the necessity of approval by the entire school board in the face of the clear directive of Civil Service Law, § 211 would not only ignore the express language of the statute but render it ineffective. This is especially clear since the statute directs the chief legal officer to proceed on his own in the event that the chief executive officer fails or refuses to notify and provide data to him concerning the Taylor Law violation. Thus, even if the school board had become involved, its action, whether in approval or disapproval of the application for injunctive relief, would have been all but meaningless (Board of Education of the City of New York v. Shanker, 54 Misc.2d 941, 283 N.Y.S.2d 548, affd., 29 A.D.2d 634, 286 N.Y.S.2d 453).

Defendants next contend that the District's application for a temporary restraining order and for a temporary injunction was fatally defective because it did not rest upon an underlying application for permanent injunctive relief. They argue that the explicit term 'permanent injunction' appears not once in District's original complaint. However, an analysis of the complaint reveals that the relief requested was that the Association and its individual members 'be enjoined and commanded to refrain from' engaging in any form of strike activity, and in addition that a temporary restraining order and temporary injunction be issued during the pendency of the action. The complaint is entitled to liberal construction and we so construe it (CPLR 3026). Further, any inconsequential irregularity in the pleadings was cured when the court permitted the District to amend its complaint to add the word 'permanent' to its prayer for relief (see CPLR 2001).

The third point advanced by the defendants is that General Associations, Law, § 16, prohibits the District from proceeding against the Association and its members in both their individual and derivative capacities. However, General Associations Law, § 16 is applicable only where the sole liability of the individual defendants arises as a result of membership in the Association (April v. Baird, 32 App.Div. 226, 52 N.Y.S. 973; Lubliner v. Reinlib, 184 Misc. 472, 50 N.Y.S.2d 786). Here the actions of the individual defendants in participating in the strike gave rise to a basis for liability independent from that which arose out of their membership in the Association. Civil Service Law, § 211, expressly provides for injunctive relief against 'public employees or an employee organization' for acts in violation of the Taylor Law.

The next contention urged by defendants is that the District's application for injunctive relief should have been dismissed insofar as it named John Doe and Mary Roe as teachers employed by the District, such designation being used to identify persons whose true names were unknown. CPLR 1024 provides that '(a) party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known.' The purpose of this section is to permit a cause of action known to exist to be brought against a person whose name only is unknown (Town of Hancock v. First National Bank, 93 N.Y. 82; Matthews v. Schusheim, 42 Misc.2d 176, 247 N.Y.S.2d 285). Here the District undoubtedly was aware that a cause of action under Civil Service Law, § 211 existed against all of the Teachers in the District who had participated in the strike. According to attendance records kept by the District naming all participating teachers would have required joining some 280 persons. This task was impractical in view of the swift action which the Taylor Law contemplates. Furthermore, we note that none of the persons enjoined from striking under the John Doe and Mary Roe designation was actually held in contempt.

The next three points all concern the question of notice to the defendants of the issuance of the order directing them to refrain from striking. Defendants at the contempt hearing did not deny knowledge of the issuance of such order nor do they do so upon this appeal but, rather, they question whether there was sufficient proof of notice presented at the hearing.

Defendants urge that the proof presented was insufficient to show that they received adequate notice of the mandate of the court. In addition, defendants argue...