Weinstein v. New York City Transit Authority

• Decision Date: 09 February 1966
• Citation: 49 Misc.2d 170,267 N.Y.S.2d 111
• Parties: In the Matter of George WEINSTEIN, Petitioner, on Behalf of Himself and All Other Citizens and Residents of the City of New York Similarly Situated, Petitioner, v. NEW YORK CITY TRANSIT AUTHORITY et al., Respondents.
• Court: New York Supreme Court

Page 111

267 N.Y.S.2d 111

49 Misc.2d 170

In the Matter of George WEINSTEIN, Petitioner, on Behalf of Himself and All Other Citizens and Residents of the City of New York Similarly Situated Petitioner, v. NEW YORK CITY TRANSIT AUTHORITY et al., Respondents.

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

Feb. 9, 1966.

George Weinstein, New York City, in pro. per.

J. Lee Rankin, Corp. Counsel of the City of N. Y. (John F. Kelly and Milton Weinberg, New York City, of counsel), for respondents Mayor Lindsay, City of New York and Comptroller of City of New York.

Sidney Brandes, Brooklyn (James P. McMahon and Helen R. Cassidy, Brooklyn, of counsel), for respondent New York City Transit Authority.

IRVING H. SAYPOL, Justice.

This application (CPLR Art. 78) was heard by the Court during the recent strike of New York City Transit Authority (Authority) employees. Transportation facilities came to a halt New Year's morning January 1, 1966. Operations resumed after January 13. Petitioner asks for an order restraining, prohibiting and enjoining as illegal the offering or paying by the respondents to the strikers of any amount in excess of their compensation in effect prior to the strike on January 1, 1966, for at least three years after resumption of their reemployments (Civil Service Law, section 108--the Condon-Wadlin Law). The respondents (at the argument the added Municipal Civil Service Commission [Commission] and its individual members were before answer to dismiss the petition by raising objections in point of law. Counsel for representatives of the striking employees were heard, amici curiae, in support of the respondents' cross-motions to dismiss.

The cross-motions are denied, and the respondents may serve and file their answers within ten days of the service of a copy of the order hereon with notice of entry (CPLR 7804[f]).

There are significant truths to be reminded and remembered here. Important public policy is involved. That public policy is inherent in the common law and written into the Constitution of The State of New York, expressly prescribed in the implementing Civil Service Law and uniformly sustained in judicial decisions and by impressive official opinion against striking the government by public employees. It is illumined in the excerpted appendices at the foot of this opinion. These include quotations from the Civil Service Law, from court holdings of New York courts and other states and the Supreme Court of the United States. The memorandum of strong approval by Governor Thomas E. Dewey in 1947 on signing the original Condon-Wadlin bill, L.1947, chap. 391, now Civil Service Law, section 108, is a good summarization of comparable declarations by Presidents Roosevelt and Truman, Governor Rockefeller, Mayors La Guardia and Wagner against the offense. (City of N. Y. v. Social Service Employees' Union, 48 Misc.2d 820, 266 N.Y.S.2d 277). Its provisions remain unchanged except for so-called easing of the penalties in the temporary interval between April 23, 1963 and July 1, 1965 (L.1963, ch. 702).

When applied, the distinctive provisions of section 108, in the background of the stated public policy, in its own context, the legislative symmetry and juxtaposition, distinguishably when considered with other provisions of general application covering employee misconduct, there emerges a convincing tri-dimensional perspective of its need and force.

The supreme law in the Constitution of the State of New York (Const., Art. V, § 6) together with its implementing Civil Service Law proclaims the public policy which controls the whole civil service, to promote the good of the public service (People ex rel. Kastor v. Kearny, 164 N.Y. 64, 58 N.E. 14). The duty rests upon the legislature and the courts to enforce those civil service provisions in letter and spirit (Chittenden v. Wurster, 152 N.Y. 345, 46 N.E. 857, 37 L.R.A. 809).

Preliminarily, it is a prerequisite to public office or employment to swear on oath or affirmation both to support the Federal and State Constitution and to faithfully discharge the duties of office or employment (Const. Art. 13, § 1; Civil Service Law, § 62). As already stated, generally, provisions for removal and discipline for misconduct of civil service employees is found in Civil Service Law, Article V, Title B, Sections 75-77. The charges must be in writing, an opportunity to answer and a hearing must be afforded. The burden of proving the charges is on the accuser. When proved, punishment can be reprimand, a fine not to exceed one hundred dollars to be deducted from salary or wages, suspension without pay not to exceed two months, demotion in grade or title, or dismissal. Review is afforded, either by appeal to the civil service commission or to the Court.

Employee misconduct by striking however is dealt with separately and specially, in conjunction with subversion and treason (Civil Service Law, Art. VII, Titles A, B, C, §§ 95 to 108, entitled 'Enforcement; Prohibitions, Penalties', annexed appendix, infra).

Interrupting here, before examining the provisions of section 108, both its own context and also its physical location as part of the statutory structure, it is fit to be reminded of the effects of the strike, that is to view the statute for application.

The truth of the allegations about the strike is admitted by the cross-motions. Its occurrence, its duration and some of its effects are common knowledge. The Court knows itself that its operations in and out of the courtroom were practically halted because of the hardship on personnel and participants. The Court knows too that New York City where the rush-hour has been characterized as that period when traffic comes to a standstill, together with its environment, really stood still. The judicially noticed records of the Court show the issuance of injunctions pendente lite enjoining the strike (N. Y. Transit Authority v. Quill, 48 Misc.2d 940, 266 N.Y.S.2d 296, Tilzer, J., and Manhattan and Bronx Surface Transit Operating Authority v. Quill, 48 Misc.2d 1021, 266 N.Y.S.2d 423, Geller, j.); the decision in the proceeding by Authority adjudging and punishing civil contempts, for defiance of the Court's orders (N.Y.L.J., Jan. 5, 1966, p. 16, col. 7, Geller, j.); and then the release from jail of the contemnors on Authority's urging that the contemnors had purged their offensive disdain of the Court's orders by ordering the ending of the strike (N.Y.L.J., Geller, J., January 14, 1966, p. 14, c. 1). The Court also notes the opinion of Geller, J., in the action, Gilmartin v. O'Grady, (N.Y.L.J., January 18, 1966, p. 16, c. 3) on granting the order to show cause in the new action by the strikers and their representatives attacking the law, particularly the penalties.

In this proceeding, in the affidavit of Authority Chairman Joseph E. O'Grady, for himself and on behalf of his fellow commissioners John J. Gilhooley and Daniel T. Scannell, first describing the herculean efforts to restore transit service, Chairman O'Grady continues as follows in describing the terrible situation:

'6. The complete shut-down of all public transit facilities in this City has brought untold hardship to its millions of inhabitants. The inconvenience suffered by the public attempting to find other means of travel to their place of business; the possible loss of wages by those unable to get to work, which is particularly onerous to those in the lower economic levels; the congested and hazardous traffic conditions, especially at bridges, tunnels and on parkways, are some of the hardships suffered by individuals. In addition, the economic loss to the business community is equally incalculable. It has been reported that these losses are as much as $100,000,000 a day. No such economic disaster has occurred since the Depression of the Thirties, and the financial burden is particularly difficult for the small businessman, who operates on a narrow margin of profit.'

This was the public reaction:

'The transit strike dealt New York City's economy a staggering blow.

'As the shutdown dragged on, impact of the strike was felt throughout the U. S., as well.

'Business losses during the 12-day shutdown of subways and buses were estimated at 800 million dollars in New York City.

'Losses to wage earners unable to get to their jobs were figured at upward of 25 million dollars a day. The loss of an estimated 500 million man-hours per week severely crippled industry, commerce and banking.

'The New York City Commerce and Industry Association called the strike and its effects 'the worst economic catastrophe since the great depression of the 1930s.

'Ralph Gross, the association's executive vice president, pointed out that the paralysis in New York's business operations affected production, marketing and finance, causing a slowdown felt across the country. Mr. Gross said that the delicately balanced economy was 'wrenched out of plumb by this irresponsible strike, causing great loss to millions of people.'

'Some examples of how the strike affected businesses in other cities----

'With New York's garment industry direly affected at what normally would be a time of peak production, department stores and dress shops all over the U. S. were caught short. About 75 per cent of garment-industry workers were absentees. Some plants closed.

'Major trucking lines which link New York with other cities reported that the pickup and delivery situation was so chaotic that shippers and buyers everywhere were hurt.

'Out-of-town banks and brokerage houses experienced serious delays in completing financial transactions with New York. The Federal Reserve System reported that checks in process of collection declined by 347 million dollars on an average day during the strike.'

'Some typical losses in New York City----

'The Equitable Life Assurance Society of the U. S. estimated its losses at 2 million dollars a week, including costs of paying employees who were...