Board of Ed. of City of New York v. Shanker

• Decision Date: 04 October 1967
• Docket Number: AFL-CIO
• Citation: 54 Misc.2d 941,283 N.Y.S.2d 548
• Parties: BOARD OF EDUCATION OF the CITY OF NEW YORK, Plaintiff, v. Albert SHANKER et al., and United Federation of Teachers Local 2, AmericanFederation of Teachers, etc., et al., Defendants.
• Court: New York Supreme Court

Page 548

283 N.Y.S.2d 548

54 Misc.2d 941

BOARD OF EDUCATION OF the CITY OF NEW YORK, Plaintiff, v. Albert SHANKER et al., and United Federation of Teachers Local 2, AmericanFederation of Teachers AFL-CIO etc., et al., Defendants.

Supreme Court, Special Term, New York County, Part I.

Oct. 4, 1967.

J. Lee Rankin, Corp. Counsel (Frederic S. Nathan, John J. Loflin, Luis M. Neco, New York City, of counsel), for plaintiff.

Delson & Gordon, New York City (Ernest Fleischman, Ralph P. Katz, New York City, of counsel), for defendant.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz, Mortimer Sattler, New York City, of counsel), for intervenor State of New York.

EMILIO NUNEZ, Justice.

Plaintiff, the Board of Education of the City of New York, seeks an order adjudging defendant UNITED FEDERATION OF TEACHERS, Local 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO (hereinafter referred to as Union), and certain of its officers (the individual defendants), guilty of and punishing them for criminal contempt of court for their failure to obey an order of this Court (Gold, J., Sept. 10, 1967), enjoining them from engaging in any strike in connection with the performance by defendant Union's members of the duties of their employment with plaintiff Board of Education. It is crystal clear from the record before me that the defendant Union herein and its President, the individual defendant Shanker, are guilty of the contempt charged.

Heretofore plaintiff, by order to show cause dated September 10, 1967, sought a temporary injunction restraining defendants from striking. The motion for such relief was scheduled to be heard on September 12, 1967, and pending the hearing, the Court, through the medium of an interim stay contained in said order to show cause, temporarily enjoined defendants.

At the conclusion of the hearing and oral argument on September 12, 1967, this Court directed that the temporary restraining order of Mr. Justice Gold 'is, in all respects continued as well as the preliminary injunction contained in that order' (S.M., p. 76).

By virtue of the foregoing continuance of the temporary restraining order beyond its original expiration on September 12, 1967, and the issuance of a new injunction on September 14, 1967, defendants' contention that the instant proceedings can inquire into their conduct only up to September 12, 1967, is wholly devoid of merit.

Defendant Union has urged that its members were not striking but that they had instead 'resigned.' Aside from the fact that out of a purported 40,000 'resignations' not a single one was either individually executed or transmitted to the plaintiff Employer (all having been delivered to defendant Union instead), the Court upon the conclusion of its original hearing on September 12, 1967, determined that an illegal strike actually existed and so found. Defendants, in contending that a strike is not the same as the so-called resignations, are urging a distinction without a difference; the argument is specious and sham and is rejected.

Defendants further contend that they were deprived of a fair trial as a result of certain newspaper editorials urging that the Court make a prompt determination and that maximum penalties be imposed.

With respect to the effect of that branch of the editorials urging a speedy disposition, the Court can only note that approximately three weeks have elapsed from the inception of the hearings until the rendition of this memorandum decision. Although in view of the foregoing chronology it would appear that further elaboration on this point is not necessary, the attention of defendants' counsel is nevertheless invited to pages 543, 544 of the stenographic transcript of the hearing wherein the Court stated: 'You are being tried here before a court and not before a jury. I told you before, and I assure you again, that that editorial (defts.' Exh. A in Evidence) will not, as far as I am concerned, have the slightest influence or bearing upon my decision, sir. If it had, if I allowed it to, I would have no business being a Judge; I should do something else.'

In connection with the instant application, numerous and extensive hearings were held by the Court, comprising almost 600 pages of stenographic transcript. The testimony adduced at such hearings demonstrates overwhelmingly and beyond any doubt whatsoever that the defendant Union and its President, Albert Shanker, one of the individual defendants herein, have deliberately, wilfully and contumaciously flouted the clear mandate of the Court which restrained them from engaging in or assisting in any work stoppage against the plaintiff Board of Education. The record, despite its voluminous size, is abysmally barren of a single shred of evidence to indicate, even remotely, anything to the contrary. In fact the testimony offered at the trial indicates that the defendants began preparing for the work stoppage many months ago.

From time immemorial, it has been a fundamental principle that a government employee may not strike. In this sensitive area, neither labor--the public employee--nor management--the governmental agency--in their mutual interdependence can afford the indulgence of arbitrary self-interest at the expense of the public. This principle was reiterated in 1919 by the then Governor of Massachusetts, Calvin Coolidge, when he stated, 'There is no right to strike against the public safety by anybody, anywhere, anytime.' In his message to the Federation of Federal Employees on August 16, 1937, President Franklin D. Roosevelt stated, 'Since their own services have to do with the functioning of government, a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of government until their demands are satisfied. Such action, looking toward the paralysis of government by those who have sworn to support it, is unthinkable and intolerable.'

Upon the signing of the Condon-Wadlin Act (Sec. 108, Civil Service Law), Governor Dewey stated, in part, that 'Every liberty enjoyed in this nation exists because it is protected by a government which functions uninterruptedly. The...