Board of Ed. of Newark v. Newark Teachers Union, Local No. 481, Am. Federation of Teachers, AFL-CIO

• Decision Date: 05 April 1971
• Parties: , 78 L.R.R.M. (BNA) 2735, 65 Lab.Cas. P 52,534 The BOARD OF EDUCATION OF NEWARK in the County of Essex, a corporation, etc., Plaintiff-Respondent, v. NEWARK TEACHERS UNION, LOCAL NO. 481, AMERICAN FEDERATION OF TEACHERS, A.F.L.- C.I.O. etc., et al., Defendants, In the Matter of NEWARK TEACHERS UNION, LOCAL 481, AMERICAN FEDERATION OF TEACHERS, A.F.L.-C.I.O. etc., and One Hundred Eighty Five (185) others, Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 306

114 N.J.Super. 306

276 A.2d 175, 78 L.R.R.M. (BNA) 2735,

65 Lab.Cas. P 52,534

The BOARD OF EDUCATION OF NEWARK in the County of Essex, a corporation, etc., Plaintiff-Respondent, v. NEWARK TEACHERS UNION, LOCAL NO. 481, AMERICAN FEDERATION OF

TEACHERS, A.F.L.- C.I.O. etc., et al., Defendants,

In the Matter of NEWARK TEACHERS UNION, LOCAL 481, AMERICAN

FEDERATION OF TEACHERS, A.F.L.-C.I.O. etc., and

One Hundred Eighty Five (185) others, Appellants.

Superior Court of New Jersey.

Appellate Division.

Argued March 15, 1971.

Decided April 5, 1971.

Seymour Cohen, Hackensack, for appellants.

R. Benjamin Cohen, Asst. Prosecutor, for respondent (Joseph P. Lordi, Essex County Prosecutor, attorney; Bruce P. Miller, Asst. Prosecutor, of counsel and on the brief).

Before Judges CONFORD, KOLOVSKY and CARTON.

The opinion of the court was delivered by

CONFORD, P.J.A.D.

This is an appeal by the defendant union and 185 individual defendants from summary adjudications of contempt of court and sentences pursuant thereto for violation of a January 31, 1970 order of the Chancery Division restraining defendants from engaging in a strike against the Newark Board of Education. The issues projected on the appeal are narrow. Prohibited picketing by most of the defendants is in effect conceded in the single brief filed on behalf of all defendants.

A quotation from defendants' brief well sets the background against which the issues before us must be considered:

On the following day (February 1) at a meeting sponsored by the Newark Teachers Union, held at the Military Park Hotel in Newark, attended by 2,000 or more people, covered by all major television and radio networks and newspapers in the New York metropolitan area, a strike was called. On the following day, Monday, more than 3,000 of the approximately 4,000 school teachers of the Newark school system did not report to their classrooms. That situation with some up and down fluctuations remained fairly constant throughout the four weeks of the strike.

The foregoing may be supplemented by the fact that at the February 1 (Sunday) union mass meeting the president of the union, Carol Graves, told the audience that the union had been served with the restraining order but that it would strike anyway as the only means of redress of its grievances.

The restraining order was broad and comprehensive. It was directed against the union, the New Jersey State Federation of Teachers, 'their respective members, officers, directors, committee members, employees, agents and representatives,' (there followed the names of 11 individuals) 'and all persons acting in behalf of or in concert of participation with the said defendants or the said members, officers,' etc. Among the acts that where prohibited were:

1. Causing, instigating, promoting, sanctioning, authorizing, carrying on, participating in, fostering, continuing, lending support or assistance to or aiding or abetting any strike, sitdown, slowdown, work stoppage or other impediment to work, against the plaintiff or by any employee or employees of the plaintiff;

2. Picketing, congregating, parading, patrolling, loitering, gathering, or walking back and forth,--or causing, instigating, promoting, encouraging, sanctioning, intimidating, coercing, counselling or authorizing any person or persons to picket, congregate, parade, patrol, loiter or walk back and fourth,--in front or in the vicinity of the public schools, buildings, grounds, playgrounds, yards, or premises of the plaintiff or operated or administered by the plaintiff, or in front of any buildings, grounds, playgrounds and premises on or at which any instructional or guidance program is conducted by plaintiff;

3. Interfering with, obstructing, impeding, or delaying, or attempting to interfere with, obstruct, impede or delay the plaintiff in the performance of any of its duties and functions or in the conduct of the Newark public school program; * * *

7. Agreeing, conspiring, or combining to do any of the foregoing acts, or directly or indirectly accepting, arranging for, or soliciting from any source funds or other support for the doing of any of the foregoing acts mentioned in paragraphs '1' to '6', directly preceding the within paragraph '7'.

While the order was to expire February 13, 1970, it was continued and ultimately made permanent.

Most if not all the individual defendants were arrested for violations of the restraint, generally when found picketing or assembling and congregating outside the schools on what normally would have been regular school days when the teacher-defendants would normally be expected to be working inside the buildings. Six officers of the union were arrested pursuant to arrest orders expressly naming them. Almost all the other individual appellants were arrested pursuant to a general arrest order issued by the Chancery Division not naming specific persons but directing the arrest by the sheriff of 'any individual who in his presence or that of any member of his staff is observed to continue to violate this court's order of January 31, 1970.'

I.

The first appellate point urged is that the general order of arrest was illegal and the State may not rely upon the 'fruits' of the illegal seizures pursuant thereto--I.e., the identification of the picketing defendants. Even if the premise were conceded, the conclusion derived therefrom would not follow.

Even if the general order be invalid for failure to name or identify particular persons to be arrested, Cf. West v. Cabell, 153 U.S. 78, 85--86, 14 S.Ct. 752, 38 L.Ed. 643 (1894); Fisher, Laws of Arrest 107 (1967), we do not find the arrests invalid. An arrest not supportable under a warrant therefor will not be held invalid if there is another basis upon which to sustain it. Cf. State v. Masco, 103 N.J.Super. 277, 282, 247 A.2d 136 (App.Div.1968). Here there is.

The common law made a distinction between felonies and misdemeanors for purposes of distinguishing the criteria for authorization of an arrest by a peace officer without a warrant. In the case of the former the test was probable cause to believe the arrestee had committed or was committing the offense; in the latter, whether the offense was being committed in the officer's presence. State v. Smith, 37 N.J. 481, 494--495, 181 A.2d 761 (1962), cert. den. 374 U.S. 835, 83 S.Ct. 1879, 10 L.Ed.2d 1055 (1963). In State v. Doyle, 42 N.J. 334, 200 A.2d 606 (1964), the dichotomy between 'felonies' and 'misdemeanors' for the foregoing purposes was transmuted into one between offenses punishable by incarceration in state prison for more than one year and those not so punishable. Id. at 349, 200 A.2d 606. In the present case, since the alleged offenses by defendants were specified by the court's order to be prosecuted summarily by the court without initial indictment by grand jury and trial by jury, the maximum potential incarceration for guilt became limited to six months. In re Buehrer, 50 N.J. 501, 236 A.2d 592 (1967). Consequently, applying the criterion of Doyle, supra, these alleged offenses fell into the category wherein the peace officers could arrest only if the offenses were committed in the presence of the officers. It is our conclusion that they did.

The term 'presence' sums up the requirement that the officers knew of the criminal event by the use of their senses. State v. Smith, Supra, 37 N.J. at 495, 181 A.2d 761. The criminal event in the present case would be any objective conduct by an individual which an officer could fairly conclude was violative of the restraining order. Picketing, with or without the carrying of signs, would obviously be such. The order also contains prohibitory language broadly referable to the ordinary common-law concept of aiding and abetting. Individuals assembling or milling about in groups outside schools or school administration buildings, inferably to deter teachers or other school personnel from attending to their duties or to encourage others to continue with their participation in the union endeavor to carry on the strike, can fairly be said to be aiding and abetting the violation of the restraining order by others as well as directly violating it themselves. We therefore conclude the offenses by those defendants who were arrested were being committed in the presence of the arresting officers and that the arrests were consequently valid.

This makes it unnecessary for us to consider what seems to us at least a dubious proposition--that if the arrests were illegal the convictions were achieved with the aid of the illegal 'fruits' thereof in the form of 'identification' of the wrongdoers.

II

Defendants contend that they were convicted of contempt of court because of absence from the classroom although they were never charged with that act.

We do not find that any defendant was convicted of contempt for absence from the classroom Per se as an act of disobedience of the restraining order. It is evident from the totality of the findings in each case that evidence of absence from the classroom by teacher defendants, coupled with proof that the absentee had failed to comply with a school regulation requiring explaining absences to the principal of the school, and in the light of all the other evidence in the case, was taken as a sufficient showing to justify the ultimate determinative finding that the particular absent defendant was participating, directly or indirectly, in the strike, contrary to the restraining order.

That the several trial judges entertained this conception is illustrated by Judge Mintz' comment at the outset of the Kirschbaum hearing: '* * * we'll proceed on the theory that the Order to Show Cause charges this defendant with unlawful picketing in front of the Lafayette Street School on February 19, 1970 and unlawful absence from his classroom As part of a strike movement on the part of Local Union 481.' (Emphasis added)

Again, 'Now, the contention of the State is that ...