Burns, Jackson, Miller, Summit & Spitzer v. Lindner

• Decision Date: 31 March 1981
• Docket Number: AFL-CI,J,D
• Citation: 108 Misc.2d 458,437 N.Y.S.2d 895
• Court: New York Supreme Court
• Parties: BURNS, JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Plaintiff, v. LOCAL 100, TRANSPORT WORKERS UNION OF AMERICA, The Transport Workers Union of America,ohn E. Lawe, as President and Charles Faulding, as Secretary-Treasurer of Local 100, Transport Workers Union of America, and William Lindner, as International President and Roosevelt Watts, as International Secretary- Treasurer of the Transport Workers Union of America,efendants.

Page 895

437 N.Y.S.2d 895

108 Misc.2d 458

BURNS, JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Plaintiff, v. LOCAL 100, TRANSPORT WORKERS UNION OF AMERICA, The Transport Workers Union of America, AFL-CIO, John E. Lawe, as President and Charles Faulding, as Secretary-Treasurer of Local 100, Transport Workers Union of America, and William Lindner, as International President and Roosevelt Watts, as International Secretary- Treasurer of the Transport Workers Union of America, AFL-CIO, Defendants.

Supreme Court, Special Term, Queens County, Part I.

March 31, 1981.

Burns, Jackson, Miller, Summi t & Spitzer, New York City, for plaintiff in Action No. 1; Stuart A. Summit, Guy R. Fairstein, Dumont Clarke IV, New York City, of counsel.

Jackson, Lewis, Schnitzler & Krupman, New York City, pro se in Action No. 2; Thomas C. Greble, Glen Cove, Regina R. Quattrochi, New York City, of counsel.

O'Donnell & Schwartz, New York City, for TWU defendants in Actions No. 1 and No. 2; Asher W. Schwartz, Malcolm A. Goldstein, New York City, of counsel.

Stephen D. Hans, Flushing, for ATU defendants in Action No. 1.

Reilly, Fleming & Reilly, New York City, for defendants Amalgamated Transit Union of America, AFL-CIO and George Link in Action No. 1; Paul G. Reilly, Jr., Joseph T. Gatti, New York City, of counsel.

MEMORANDUM.

KASSOFF, Justice.

In these actions seeking damages resulting from a mass transit strike conducted by the defendant unions in April of 1980 against the New York City Transit Authority ("the Transit Authority") and the Manhattan & Bronx Surface Operating Authority ("MaBSTOA"), the defendants move pursuant to CPLR 3211(a) (7) to dismiss the complaint for failure to state a cause of action.

Plaintiffs commenced an action in this court as a class action at about the same time they commenced another action in New York County. Subsequently, by an order dated August 6, 1980, the New York County action was removed to this court to be tried jointly with the class action. By stipulation, all outstanding sufficiency motions were held for a single submission, which is now before this court.

This application is a plea in abatement, questioning the legal sufficiency of the cause rather than the veracity of the facts pleaded. For the purposes of this motion, the complaint should "be liberally construed and be deemed to allege whatever can be reasonably implied from its statements". (4 Weinstein-Korn-Miller, N.Y.Civ.Prac. par. 3211.36, p. 3213.) A party moving to dismiss a complaint on the ground that a cause of action has not been stated concedes for the purposes of such motion every fact pleaded and every inference that may be drawn. (Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330 (1955).)

The court has considered the pleadings and all of the evidence presented not as a motion for summary judgment but on the question of whether plaintiffs can have a cause of action against the defendants. (See Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970.)

This action arises out of an 11-day strike by the members of the unions representing the employees of the Transit Authority and MaBSTOA. The five union organizations and their respective officers in their respective individual capacities are named as defendants.

Plaintiffs are engaged in the practice of law as a profession, maintaining offices in Manhattan. Plaintiffs sue both individually and on behalf of all other professional and business entities (the "class") that were damaged as a consequence of the defendants' wilful disruption of the service provided by the public transportation system of the City of New York.

On April 1, 1980, in violation of an injunction, the members of the defendants' unions commenced the strike which halted all mass transit in, and paralyzed the life and commerce of, the City of New York. On the eighth day of the strike, the court entered an order finding the unions and certain of their principal officers guilty of criminal contempt for having wilfully disobeyed the court's preliminary injunction by, among other things, "engaging in, causing, instigating, encouraging, condoning, aiding and abetting a strike by employees (of the Transit Authority and MaBSTOA)" and wilfully and intentionally failing to instruct the unions' members not to engage in any strike or other act prohibited by the injunction. Although heavy fines were imposed and the officers were personally adjudged in contempt, and in the face of a further order that the defendant officers instruct their members that they return to work forthwith, the strike continued until April 11, 1980.

By the time the members of the defendant unions had reported to work, the strike had caused widespread disruption of the lives of the citizens of New York City and severe economic damage to its professional and business community.

Public policy, as expressed in both federal and state law, recognizes the right of labor to withhold its services by way of a strike when management has not agreed to the terms of a contract of hire, referred to generally as a collective bargaining agreement. (Labor Management Relations Act of 1947, 29 U.S.C.A. § 163; Labor Law, § 700, p. 703.) Courts have little power to interfere with such right. (Norris-LaGuardia Act, 29 U.S.C.A., § 101; Labor Management Relations Act of 1947, 29 U.S.C.A., §§ 160, 178; Labor Law, § 807.) Where employees, however, are those of the state or local government, the policy differs, and strikes are not permitted. (Civil Service Law, § 210.)

In this regard, even federal policy yields to the paramount state interest. (State of New York v. Fuller, 31 A.D.2d 71, 296 N.Y.S.2d 411.) Clearly, the policy of non-interference established for the private sector does not apply to the public sector, and strikes by government employees are illegal. The issue here is whether such illegal strikes may also give rise to a private cause of action.

In its first cause of action, which sounds in prima facie tort, plaintiffs allege that the members of the defendant unions wilfully and maliciously engaged in the strike and that the parent unions and individual defendants in their individual and representative capacities wilfully and maliciously caused, instigated, encouraged and condoned this action by the members (Complt., P 11); that the strike was knowingly engaged in and was caused, instigated, encouraged and condoned by the union officers and the parent unions in violation of section 210 of the Taylor Law and Justice Monteleone's preliminary injunction issued on March 31, 1980 (Complt., P 12-13; and that it was initiated with the intention and for the purpose of causing foreseeable economic damage to the plaintiffs and members of the class of a magnitude such that representatives of the Transit Authority and MaBSTOA and of the City and State of New York would act to terminate the strike (Complt., P 14). Economic damage to the plaintiffs and the members of the class in the form of both out-of-pocket expenses and lost profits is alleged to have been caused as a result of the alleged wilful and malicious conduct of the defendants (Complt., PP 15 and 16).

The second cause of action, which sounds in nuisance, realleges the allegations of the first, and further alleges that the strike was engaged in with the intention and for the purpose of causing, and did in fact cause, widespread economic dislocation and substantial interference with the public health, safety, comfort and convenience, thereby creating a nuisance (Complt. PP 19 and 20). Plaintiffs and the members of the class are alleged to have suffered damages as a direct and foreseeable result of the strike, consisting of both out-of-pocket expenses incurred in order to conduct their professions and businesses in the face of the illegal strike and lost profits as well (Complt., P 21). Plaintiffs also seek to recover as third-party beneficiaries of the collective bargaining agreement between the defendant unions and public employees. Plaintiffs particularly claim the benefit of the no-strike clauses contained in those agreements.

The thrust of defendants' argument is that public policy precludes a finding that a cause of action has been stated and that the Taylor remedies against strikes by public employees preempt traditional common law causes of action for damages.

The Taylor Law was enacted by the New York State Legislature upon the recommendation of the Special Committee on Public Employee Relations established by Governor Rockefeller after the devastating mass transit strike of 1966. As its predecessor, the Condon-Wadlin Act, had done, the Taylor Law perpetuated the long-standing prohibition of strikes by public employees. (City of New York v. DeLury, 23 N.Y.2d 175, 295 N.Y.S.2d 901, 243 N.E.2d 128 (1968), app. dsmd. 394 U.S. 455, 89 S.Ct. 1223, 22 L.Ed.2d 414 (1969).)

That the Taylor Law was not intended to vest in the public employer the exclusive remedy for injury caused by illegal public employee strikes was recognized by the Appellate Division, Second Department, in Caso v. District Council 37, 43 A.D.2d 159, 350 N.Y.S.2d 173 (2d Dept., 1973).

The plaintiffs in Caso were not the employers of the striking public employees but officials of Nassau County towns who sued in their representative and individual capacities. They brought a common law action against the unions representing employees of sewage treatment plants in Manhattan and union officers. The unions had engaged in a strike prohibited under the Taylor Law that resulted in the emission of sewage into the East River which subsequently polluted the beaches of Nassau County. The court found that "the purpose of the Taylor Law and the prohibition against public employee strikes as well as the general welfare of the Public are best served by permitting appropriate redress for violation of law." (Caso v. District Council 37, supra, p. 162, 350 N.Y.S.2d 173.)

The court, in rejecting defendants' argument that the...