Nyc Tr. Auth. v. Transport Workers Union of America, 2005-11866.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Miller
• Citation: 35 A.D.3d 73,2006 NY Slip Op 07153,822 N.Y.S.2d 579
• Parties: NEW YORK CITY TRANSIT AUTHORITY et al., Respondents, v. TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, et al., Defendants, and LOCAL 100 OF TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, Appellant.
• Docket Number: 2005-11866.
• Decision Date: 03 October 2006

35 A.D.3d 73 822 N.Y.S.2d 579 2006 NY Slip Op 07153 NEW YORK CITY TRANSIT AUTHORITY et al., Respondents,
v.
TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, et al., Defendants, and LOCAL 100 OF TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, Appellant. 2005-11866. Appellate Division of the Supreme Court of the State of New York, Second Department. October 3, 2006.

[35 A.D.3d 74]

Schwartz Lichten & Bright, P.C., New York City (Arthur Z. Schwartz and Daniel R. Bright of counsel), for appellant.

Eliot Spitzer, Attorney General, New York City (Caitlin J. Halligan, Gregory Silbert, Robert Goldfarb, Benjamin Gutman and Neil H. Abramson of counsel), and Martin B. Schnabel, Brooklyn, for respondents. (One brief filed.)

[35 A.D.3d 75]

Michael A. Cardozo, Corporation Counsel, New York City (Leonard Koerner, Alan M. Schlesinger and William S. J. Fraenkel of counsel), for City of New York, amicus curiae.

David Goldberg, New York City, and Brennan Center for Justice at NYU School of Law, pro se (David S. Udell, Paul K. Sonn and Jennifer Sung of counsel; Chitra G. Aiyar and Rajesh Nayak on the brief), for Brennan Center for Justice at NYU School of Law, amicus curiae.

OPINION OF THE COURT

MILLER, J.P.

Shortly before Christmas 2005, the members of various transportation workers' unions went on strike in the City of New York, in violation of a previously issued injunction. As is relevant to this appeal, as a result of that violation, following a bench trial, the appellant, Local 100 of Transport Workers Union of America, AFL-CIO (hereinafter Local 100), subsequently was adjudged in contempt, and fined at the rate of $1 million per day. Among the issues presented for our review is the question of whether Local 100 had Sixth and Fourteenth Amendment rights to a jury trial on the question of its contempt. We conclude that none of Local 100's arguments has merit, and accordingly affirm the order and judgment on appeal.

I

As alleged in its complaint, the plaintiff New York City Transit Authority (hereinafter the Transit Authority), a public benefit corporation, is responsible under section 1202 of the Public Authorities Law for the operation of transit facilities within the City of New York for the convenience and safety of the public. Public Authorities Law § 1202 (2) states that the Transit Authority shall be regarded as performing a governmental function for the benefit of the people of the State of New York. The Transit Authority maintains and operates all of the rapid transit lines within the City of New York (i.e., the subway and elevated railroad lines), as well as virtually all of the bus lines in Brooklyn and Staten Island, "substantial" numbers of bus lines in Queens, and "some" bus lines in Manhattan. More than 7.5 million passengers ride those lines each weekday. The Transit Authority alleges that it employs about 31,000 hourly-paid employees, who operate and maintain transit facilities. They are "public" employees subject to the Civil Service Law. The plaintiff Manhattan and Bronx Surface Transit Operating

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Authority (hereinafter MABSTOA) is a public benefit corporation operating under section 1203-a of the Public Authorities Law. MABSTOA maintains and operates certain bus facilities, including most of the local bus lines in Manhattan, some of the local bus lines in Queens, and all of the bus lines in the Bronx. In total, each weekday, the MABSTOA lines carry more than one million passengers in the City of New York. MABSTOA employs about 5,000 hourly-paid workers, who operate and maintain its bus facilities. They are "public" employees as defined by the Civil Service Law.

The defendant Local 100 is a labor union, and is the collective bargaining representative of the maintenance and operating employees of the Transit Authority and MABSTOA, as well as the clerical employees of MABSTOA. This amounts to about 33,000 employees, including all subway operators and conductors, bus drivers, token booth clerks, bus and train mechanics, and track workers in the City of New York, save for Staten Island. The plaintiffs alleged that most of their employees engaged in the operation and maintenance of the plaintiffs' transit facilities, and are members of and represented by Local 100 for the purposes of collective bargaining.

At the time the operative events in this dispute arose, the existing collective bargaining agreement (hereinafter CBA) between Local 100 and the plaintiffs began on December 16, 2002, and was due to expire at 12:01 A.M. on December 16, 2005. About 33,000 of the plaintiffs' employees were covered by that CBA. Starting in mid-October 2005, Local 100 entered into negotiations for a new CBA.

Prior to the expiration of the CBA in mid-December 2005, with no successor agreement yet in place, officers and members of Local 100 made statements to the press and engaged in activities indicating that they planned to strike if a new CBA was not in place effective December 16, 2005. On December 10, 2005, Local 100 conducted a mass meeting of its members. The members present voted unanimously to authorize Local 100's Executive Board to call a strike in the event no agreement was reached on a new CBA by the time the existing one expired.

On December 12, 2005, the plaintiffs commenced this action pursuant to article 14 of the Civil Service Law—the Fair Employment Act, otherwise known as the Taylor Law (Civil Service Law §§ 200-212). Among other things, the plaintiffs sought an injunction to prevent Local 100 and its members from striking. At the same time, the plaintiffs moved by order

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to show cause for a preliminary injunction to prevent a strike during the pendency of the action. The motion, opposed by Local 100, came before the Supreme Court, Kings County, on December 13, 2005. The court heard the parties' arguments, and then issued the requested preliminary injunction. On December 14, 2005, the court issued a decision setting forth the court's rationale for the December 13, 2005, order.

Despite the preliminary injunction, at 3:01 A.M. on December 20, 2005, Local 100 went on strike. Most of the plaintiffs' hourly-paid employees complied with the call for a strike, and thereby shut down the plaintiffs' mass transit facilities.

Accordingly, by order to show cause dated December 20, 2005, the plaintiffs moved, inter alia, pursuant to Judiciary Law §§ 750 and 751 to adjudge Local 100 guilty of criminal contempt for the willful violation of the December 13, 2005, preliminary injunction by engaging in the strike. As a sanction against Local 100 for that alleged violation, the plaintiffs sought a $1 million fine for the violation of the preliminary injunction on December 20, 2005, with successive doubling of that fine for each day it continued on strike (i.e., $2 million for and in the event of a second day of striking, $4 million for and in the event of a third, and so forth).

Counsel for the unions were alerted early on the morning of December 20, 2005, that the plaintiffs intended to make the contempt motion. Counsel for the parties appeared in court between 4:30 A.M. and 5:00 A.M., at which time the court signed the plaintiffs' order to show cause, making the motion returnable at 11:00 A.M. that same day. The plaintiffs submitted a memorandum of law, in which they requested that should it be adjudged in contempt, Local 100 be required to pay an "immediate" fine of $1 million for the December 20, 2005, violation of the preliminary injunction, with a "prospective" penalty doubling the amount of the fine for each day of continued disobedience, "to ensure future compliance."

Local 100 submitted a prehearing memorandum of law in which it argued, inter alia, that it had not been afforded reasonable notice of the contempt proceeding, in violation of its right to due process. It also argued that it had a Sixth Amendment right to a jury trial on the issue of contempt. Local 100 further claimed that the plaintiffs provoked the strike, and that the proposed fines were excessive.

Later that morning, the Supreme Court conducted a hearing on the plaintiffs' contempt motion. Immediately prior thereto,

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after hearing argument on the issue, the court denied the application of Local 100 for a jury trial on the contempt issue.

Counsel for Local 100 stipulated that at 3:00 A.M. on December 20, 2005, Local 100's President, Roger Toussaint, announced to the media that the Executive Board of the Local had voted to authorize a strike, and that the transit system was "closed down in large measure." Earlier in the proceedings, Local 100's counsel had conceded that "[e]verybody knows there's a transit strike."

Among other things, to demonstrate the impact of the strike upon the City and its residents, the plaintiffs submitted the affirmation of Joseph F. Bruno, Commissioner of the New York City Office of Emergency Management, which the court received in evidence. Bruno stated, inter alia, that in the last 39 years, the City had experienced two extended transit strikes, both of which caused complete disruption to life in the city, which is "heavily dependent on ... public bus and subway service." He alleged that during each day of a strike, the City would lose between approximately $8 million and $12 million in tax revenue (consisting of the total losses in daily sales tax revenue, business income tax revenue, and personal income tax revenue), and that businesses would suffer losses of between $440 million and $660 million per day. Bruno referred to the 11-day 1980 transit strike in support of his position. For example, during that strike, businesses in the city suffered losses of about $1.1 billion. In addition, the City lost $1 million per day in sales tax revenue and $500,000 in income tax revenue for each day of the strike. Thus, the loss in sales and income tax revenues to the City amounted to approximately $16.5 million for the 11-day strike. Direct monetary losses to the City (e.g.,...