City of New York v. Social Service Emp. Union

• Decision Date: 09 December 1965
• Docket Number: No. 1,AFL-CIO,No. 2,1,2
• Parties: The CITY OF NEW YORK, Plaintiff, v. SOCIAL SERVICE EMPLOYEES UNION et al., Defendants. Action SOCIAL SERVICE EMPLOYEES UNION by Joseph Tepedino, as President, Local 371, American Federation of State, County & Municipal Employees,by Alan R. Viani, as President, and Joseph Tepedino, Alan R. Viani, Ishmael Lahab and Patricia Caldwell, suing on behalf of themselves and all others similarly situated, Plaintiffs, v. James R. DUMPSON, as Commissioner of Welfare of the City of New York and Abraham D. Beame, as Comptroller of the City of New York, Defendants. Action
• Court: New York Supreme Court

Page 277

266 N.Y.S.2d 277

48 Misc.2d 820

The CITY OF NEW YORK, Plaintiff, v. SOCIAL SERVICE EMPLOYEES UNION et al., Defendants.

Action No. 1.

SOCIAL SERVICE EMPLOYEES UNION by Joseph Tepedino, as President, Local 371, American Federation of State, County &amp Municipal Employees, AFL-CIO by Alan R. Viani, as President and Joseph Tepedino, Alan R. Viani, Ishmael Lahab and Patricia Caldwell, suing on behalf of themselves and all others similarly situated, Plaintiffs, v. James R. DUMPSON, as Commissioner of Welfare of the City of New York and Abraham D. Beame, as Comptroller of the City of New York, Defendants.

Action No. 2.

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

Dec. 9, 1965.

Delson & Gordon, New York, City, for Social Service Employees Union et al.

Leo A. Larkin, Corp. Counsel of City of New York (William M. Murphy, New York City, of counsel), for City of New York, Dumpson and Beame.

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

IRVING H. SAYPOL, Justice.

This opinion complements the accompanying decision which concludes the litigation arising out of the strike of the employees of the New York City Department of Welfare early this year. On New Year's eve, the City of New York sued two labor unions and their officers representing Welfare Department employees, in representative and individual capacities. An injunction, pendente lite, issued, enjoining the strike then already in effect, on January 7, 1965. No opposing papers were ever submitted. In fact, no answers to the City's suit were served until long thereafter. The defendants' oral cross motion during the argument of the injunction motion to dismiss the complaint (CPLR 3211a) was denied. (Minutes of hearing, December 31, 1964, pp. 8-13, N.Y.L.J., January 19, 1965, p. 15, col. 5, et seq.) Some 5,000 striking employees, after seriously obstructing the department, returned to work after 30 days following a report of a committee called The Mayor's Task Force, which had come into the picture with the support and concurrence of the strikers and their unions. This committee included a well-known militant labor partisan. In its report which brought about a return to work by the strikers, the task force described the strike literally as a tragedy for the families on relief, for the employees of the Welfare Department and for the City, 'a crisis that deeply affects the lives of more than half a million people in New York.' In the overall, its objective was to end the strike--as a coincident the institution of an action by the strikers for 'a determination of the constitutionality of the new amendments to the act.' That act is the Condon-Wadlin law, which is section 108 of the Civil Service Law. It condemns and prohibits strikes by public employees.

The same representatives and individuals who are the defendants in the City's action then sued the City and brought on a motion for a permanent (sic) injunction in mid-February, 1965, to enjoin the enforcement of the penalty provisions of the Condon-Wadlin Act (Civil Service Law, sec. 108). In the order to show cause dated the 9th day of February, 1965, on consent of the parties, there was included a temporary restraint of enforcement for punishment of the strikers. On the return of the motion, the Attorney General of New York, Hon. Louis J. Lefkowitz, intervened, pro se, in support of the law and the New York Civil Liberties Union was recognized as amicus curiae. It argues against constitutionality. Upon comparison of the complaint in this second case of the Unions with the pleadings in the first case, including the belated verified answer of Local 371, it is apparent that the affirmative defenses in the answer to the City's case are the same, if not identical with the several separate causes of action in the strikers' complaint. Accordingly, an order was signed and entered on the 18th day of February, 1965, which consolidates both actions, having the first index number 42511-1964.

The City and the Attorney General, before answering in the Unions' action, move to dismiss the latter's complaint for failure to state a cause of action (CPLR 3211[a]). The court treats the motion as one for summary judgment in the consolidated action (CPLR 3212), considering that there has been a joinder of issue.

Decision has been withheld, on the stipulation of the parties, because of related contempt proceedings for defying the injunctive order of January 7, 1965 (N.Y.L.J., February 5, 1965, p. 16, col. 2, 23 A.D.2d 55, 258 N.Y.S.2d 246) and to avoid abrasive effect which might be harmful to negotiation of a labor agreement. Concurrently, the contempt proceedings are being withdrawn on the further stipulation of the parties, with the court's approval.

The overall thrust of the attack on Civil Service Law, section 108, is that it is unconstitutional, the main objective a declaration of invalidity of the penalty provisions.

The intolerable outrage of the public employee turning on his government has been so characterized by the executive, the legislative and judicial branches of the government, federal and State. Presidents Roosevelt and Truman, Governors Dewey and Rockefeller, Mayors LaGuardia and Wagner have denounced it. Employees of the United States are prohibited by law from striking against the government, conduct constituting a criminal felony comparable to advocacy of the overthrow of constitutional government, and moreover violators and advocators are permanently barred from future employment (U.S.C.A., Title 5, sect. 118p ). The catchline of section 118p reads: 'Federal employment denied persons who are disloyal or assert right to strike against Government.'

Argument against the law's constitutionality is specious reiteration. The opinion on the decision granting the temporary injunction collates the affirmed decisions in this court holding the law constitutional--Justice Vincent A. Lupiano in the case of striking Transit Authority motormen (New York City Transit Authority v. Loos, 2 Misc.2d 733, 154 N.Y.S.2d 209, aff'd 3 A.D.2d 740, 161 N.Y.S.2d 564); Justice Jacob Markowitz in the case of striking school teachers (Pruzan v. Board of Education, 25 Misc.2d 945, 209 N.Y.S.2d 966, direct appeal on constitutionality dismissed, 9 N.Y.2d 680, 212 N.Y.S.2d 416, 173 N.E.2d 237, judgment aff'd 12 A.D.2d 923, 215 N.Y.S.2d 718, aff'd 9 N.Y.2d 911, 217 N.Y.S.2d 86, 176 N.E.2d 96). The only word to be added is the brief reference to Mr. Lewis' striking miners when President Truman nationalized them at the end of the second World War. It was Mr. Truman's forceful determination and steadfast adherence to maintenance of law in resisting Mr. Lewis and his mine workers that brought an abrupt halt to their disruptive strike. Resort by the government to the federal courts by action in equity resulted in an injunctive order which was ignored. The...