Board of Ed. of Half Hollow Hills Cent. School Dist., Towns of Huntington and Babylon v. Roseman

• Decision Date: 10 May 1976
• Citation: 382 N.Y.S.2d 988,52 A.D.2d 855
• Parties: , 92 L.R.R.M. (BNA) 2630 BOARD OF EDUCATION OF the HALF HOLLOW HILLS CENTRAL SCHOOL DISTRICT, TOWNS OF HUNTINGTON AND BABYLON, Respondent, v. Carol ROSEMAN, Individually and as President of the Half Hollow Hills Teachers Association, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 988

382 N.Y.S.2d 988

52 A.D.2d 855, 92 L.R.R.M. (BNA) 2630

BOARD OF EDUCATION OF the HALF HOLLOW HILLS CENTRAL SCHOOL DISTRICT, TOWNS OF HUNTINGTON AND BABYLON, Respondent, v. Carol ROSEMAN, Individually and as President of the Half Hollow Hills Teachers Association, et al Appellants, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

May 10, 1976.

Donald J. Werner, Massapequa Park, for appellants.

Ingerman, Smith & Greenberg, Northport (John H. Gross, Northport, of counsel), for respondent.

Before COHALAN, Acting P.J., and MARGETT, HAWKINS, SHAPIRO and DAMIANI, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to section 751 of the Judiciary Law to punish the defendants for criminal contempt, in which defendants cross moved to dismiss the proceeding on several stated grounds, the appeal, as limited by appellants' brief, is from so much of a judgment of the Supreme Court, Suffolk County, dated October 22, 1975, as, after a hearing, (1) adjudged appellants to be in contempt of a temporary restraining order of the same court, dated September 2, 1975, (2) fined the appellant association the sum of $65,000 and the individual appellants the sum of $250 each, (3) ordered the incarceration of the individual appellants for stated periods and (4) failed to grant the cross motion in its entirety.

Judgment modified, on the law, by deleting so much thereof as found the appellant association guilty of specification A5. As so modified, judgment affirmed insofar as appealed from, with costs to petitioner. The findings of fact are affirmed.

Appellants' time to pay the fines is extended until 10 days after service upon them of a copy of the order to be made hereon with notice of entry thereof. In the event that the association does not pay its fine within the time prescribed herein, then the dues check-off provision of the judgment appealed from shall become operative. The terms of imprisonment of the individual appellants shall begin 10 days after service upon the Sheriff of Suffolk County of a copy of the order to be made hereon with notice of entry thereof.

There is no language in the temporary restraining order which prohibits the appellants from picketing the homes of the petitioner Board's members. We have carefully considered all other issues raised by appellants and find them to be without merit.

COHALAN, Acting P.J., and MARGETT and HAWKINS, JJ., concur.

SHAPIRO, J., concurs insofar as the majority is (1) deleting specification A5 and (2) upholding (a) the finding that appellants were guilty of contempt and (b) the punishment imposed upon the appellant association, but otherwise dissents and votes to further modify the judgment insofar as it is appealed from by deleting those portions thereof which imposed punishment upon the individual appellants, with the following memorandum, in which DAMIANI, J., concurs.

Appellants appeal, as limited by their brief, from the portions of a judgment of the Supreme Court, Suffolk County, dated October 22, 1975, and made pursuant to an order to show cause dated September 12, 1975, which (1) adjudged each of them guilty of criminal contempt of court for violating the terms of a temporary restraining order contained in an order to show cause dated September 2, 1975, (2) imposed punishments on them therefor and (3) denied their cross motion to dismiss the order to show cause, except that it did dismiss (a) the proceeding as against Richard P. Lee and Judith Hubner and (b) so much of specification A3 as charged the appellant Half Hollow Hills Teachers Association with following employees of the petitioner home from work. The Special Term found (1) that, with the foregoing exception, the association had willfully disobeyed the provisions of the temporary restraining order, as charged in specifications A1 through A6 of the September 12 order to show cause, and was, therefore, guilty of criminal contempt and (2) that the individual appellants (Carol Roseman, Colin Parker, Frank Cantoni, William Walters, Frank Seibert, John Kennedy and Carol Goldfarb) had willfully disobeyed the provisions and requirements of the temporary restraining order, as charged in all specifications of the order to show cause, except for specification B2E, and were, therefore, guilty of criminal contempt. The judgment appealed from imposed a fine of $65,000 upon the association payable to the Treasurer of the County of Suffolk, ordered that appellants Roseman, Parker, Cantoni and Walters be imprisoned for 20 days, ordered that appellants Kennedy, Seibert and Goldfarb be imprisoned for 10 days and fined each of the said individuals $250, payable to the County Treasurer.

I dissent from so much of this court's decision as upholds the punishments imposed upon the individual appellants. Unfortunately, to make the reasons for my position clear, a rather lengthy review of the record becomes necessary.

THE ISSUES.

The appellants attack the validity of the temporary restraining order as being too vague to give them notice of the conduct in which they could not engage. They also attack the constitutionality of the Taylor Law on the grounds that (1) the different treatment accorded police and firemen under section 209 of the Civil Service Law (L.1974, ch. 725, §§ 1--3) denies teachers equal protection of the laws and (2) teacher strikes are not an interference with an essential government service and there is, therefore, no police power justification for denying teachers, as contrasted with policemen, firemen and sanitationmen, the right to bargain collectively and to strike. Appellants attack the validity of the September 12, 1975 order to show cause on the grounds that it was so vague as to fail to give the required notice, that there was no proof by affidavit of the specifications charged and that it charged appellants with conduct not proscribed by the September 2 order. Appellants also claim error by Special Term in (1) admitting into evidence testimony of their conduct prior to the issuance of the September 2 temporary restraining order and after September 12, the date on which it was replaced by Mr. Justice Aspland's injunctive order, (2) taking judicial notice of an oral direction by Mr. Justice Aspland to appellants on September 8 and of its own oral direction on September 18 that the teachers return to work, (3) considering, in determining the sanctions to be imposed, testimony which had been offered in support of specifications which it had dismissed and (4) holding that the specifications it sustained had been proved beyond a reasonable doubt. The appellants also attack the penalties imposed as being excessive. Finally, they contend that the judgment appealed from is defective because it does not comply with the requirement of section 752 of the Judiciary Law, that the 'mandate of commitment' set forth the particular circumstances of their offenses.

While most of the foregoing contentions lack merit, I would sustain the appellants' contentions that Special Term improperly took judicial notice of Mr. Justice Aspland's oral order of September 8 and that it improperly relied on evidence supporting specifications of criminal contempt which it had dismissed, and considered such in determining the sanctions which it imposed.

NEGOTIATIONS PRIOR TO THE STRIKE.

An examination of the activities of petitioner and appellants is relevant to some of the issues raised on this appeal. Those activities are described in an affidavit of the appellant Roseman, sworn to September 25, 1975 and submitted in support of the appellants' cross motion to dismiss the September 12 order to show cause, and in the testimony of witnesses for both sides received at the hearings on the order to show cause to punish appellants for contempt, signed by Mr. Justice McCarthy on September 12, 1975. The parties appeared for a hearing under the show cause order on September 18, 1975. On that date, Mr. Justice Scileppi orally admonished the individual appellants to return to work the following day, Friday, September 19, 1975, and he then adjourned the matter for the taking of testimony, which he heard on September 29 and 30, 1975.

A member of the Board of Education testified that negotiations between the board and the appellant Teachers Association on a new contract for the upcoming school year started some time back in January or February, 1975. The board offered an increase of only 1.5% Without giving an annual increment, even though a 3.13% Annual increment had been customary up to that point without regard to further increases negotiated by collective bargaining. The board insisted on this minimal and unmoving offer even though its budget, as approved by the voters of the Half Hollow Hills School District, included funds for a 7% Increase for the salaries of teachers in the district. It was not until the evening of September 1, 1975, the day before the teachers were to report for work for the new school year to prepare for the opening of the term on September 3, that the, board of Education raised its offer to 6.13% Consisting of the normal annual increment, plus 3% In additional new money.

According to the affidavit of appellant Roseman, president of the Teachers Association, the negotiator for the Board of Education, during the period from February to September 1, 1975, while persisting until the latter date in offering only a 1.5% Increase, with loss of the increment increases, advised the union's negotiating team to tell the teachers that 'the gravy train is over' and that 'they are lucky to have jobs.' After only four negotiating meetings from February to April, the board's negotiator indicated that the parties were at an impasse and he declared an impasse under the Taylor Law on April 25, at the start of the scheduled fifth negotiating session.

The Public Employment Relations Board (PERB) thereupon appointed a fact-finder who met with the parties on June 24, July 2 and July 30 in an...