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CITY NEW YORK v. JOHN J. DE LURY (11/21/68)

COURT OF APPEALS OF NEW YORK 1968.NY.43631 <http://www.versuslaw.com>; 243 N.E.2d 128; 23 N.Y.2d 175 decided: November 21, 1968. CITY OF NEW YORK, RESPONDENT,v.JOHN J. DE LURY, INDIVIDUALLY AND AS PRESIDENT OF UNIFORMED SANITATIONMEN'S ASSOCIATION, LOCAL 831, INTERNATIONAL BROTHERHOOD OF TEAMSTERS AND CHAUFFEURS, ET AL., APPELLANTS City of New York v. De Lury, 30 A.D.2d 781, affirmed. Counsel Paul O'Dwyer, John J. De Lury, Jr., W. Bernard Richland and Morris Weissberg for appellants. J. Lee Rankin, Corporation Counsel (Frederic S. Nathan, William M. Murphy and Laurence D. Cherkis of counsel), for respondent. Opinion by Chief Judge Fuld. All concur, Judges Burke, Bergan and Keating on constraint of this court's decision in Rankin v. Shanker (23 N.Y.2d 111) insofar as the right to a jury trial is concerned. Author: Fuld


City of New York v. De Lury, Opinion by Chief Judge Fuld. All concur, Judges Burke, Bergan and Keating on constraint of this court's decision in Rankin v. Shanker ( Author: Fuld

 We recently decided, in Rankin v. Shanker (23 N.Y.2d 111), that public employees and labor organizations representing them were not entitled to a trial by jury in a criminal contempt proceeding for the violation of section (subd. 1) of the Taylor Law.*fn1 In so holding, we concluded that a legislative classification "which differentiates between strikes by public employees and employees in private industry" is reasonable and does not offend against the constitutional guarantee of equal protection of the laws (23 N.Y.2d, at p. 118). The case now before us calls upon the court to determine, primarily, whether the Taylor Law's mandate that public employees shall not strike and that labor organizations representing them shall not cause or encourage a strike violates due process requirements of the State or Federal Constitution.

At about seven o'clock in the morning of February 2, 1968, virtually all of the sanitation men in the City of New York -- employees of the Department of Sanitation -- failed, without excuse, to report for work.*fn2 Later in the day, at a demonstration in front of City Hall, members of the Uniformed Sanitationmen's Association (referred to herein as the "Union") were addressed by their president, the defendant De Lury, in these words:

"Your sentiments before was go-go-go. I'd accept a motion for go-go-go (cheers). All in favor signify by saying yes (cheers). All opposed (boos). I didn't come here to bargain, I took a firm position with the City, I gave the members a final offer of this union. Now I want to show discipline here this morning -- or this afternoon -- I don't want to show where there is confusion in the members -- You got a job at the locations to see that this is effective 100% (cheers)."

A nine-day strike, ending on the night of February 10, resulted. During that period, few, if any, of the sanitation men reported for work, in consequence of which garbage and refuse accumulated on the city streets at the rate of 10,000 tons a day. This constituted a serious health and fire threat; indeed, the Commissioner of Health characterized the "garbage situation" as "a serious one to the health of the city" and the Fire Commissioner declared that the Fire Department "experienced a marked increase in the number of outside rubbish fires".*fn3

On February 2, the very day the work stoppage began, the City instituted the present action to enjoin the defendants from "striking" and moved for a preliminary injunction. A temporary restraining order was granted which enjoined the carrying on of the strike and required the leaders of the Union to instruct the members to return to work. Three days later, on February 5, the court at Special Term granted a preliminary injunction which again contained a directive to De Lury that he shall "forthwith instruct all members [of the Union] not to engage or participate in any strike, concerted stoppage of work or concerted slowdown against the plaintiff." Although, because of the health and fire hazards involved, immediate compliance with the orders was vital, the members of the Union, as previously noted, remained away from their jobs until February 10. An application, brought on by order to show cause, to punish the Union and De Lury for criminal contempt for willfully disobeying the restraining order, came on for hearing before the court; the testimony adduced concerning the strike and its effects, as well as the conduct of De Lury, was substantially as outlined above. When the City, through its Corporation Counsel, stated that it was prepared to call witnesses to establish that the sanitation men "had [not] received instructions from Mr. De Lury to report back to work", defense counsel conceded that, if witnesses were called to the stand -- as the Corporation Counsel proposed -- "they would testify that they did not receive any instructions from Mr. De Lury to go back, because Mr. De Lury did not send them out, and Mr. De Lury did nothing to bring them back. These are the facts which are known to everybody."*fn4

At the conclusion of the hearings, the court, dismissing charges which had also been asserted against other officers, found De Lury and the Union guilty of criminal contempt for willfully disobeying its lawful mandate. It sentenced De Lury to 15 days in jail and fined him $250 and it fined the Union $80,000; in addition, the court ordered that the Union's right to dues check-off be forfeited for a period of 18 months.*fn5 The Appellate Division affirmed Special Term's orders and granted the defendants leave to appeal to our court on a certified question.

We consider, first, the defendants' contention that the Taylor Law is unconstitutional on the ground that, in prohibiting strikes by public employees, it deprives them of due process of law. Manifestly, neither the Fourteenth Amendment to the Federal Constitution nor the Bill of Rights of the State Constitution (art. I) grants to any individual an absolute right to strike. On the contrary, that right is subject to the qualification that, if a strike is for an illegal objective, it is enjoinable at the instance of an aggrieved party. To cull from the opinion of the Supreme Court in Auto Workers v. Wisconsin Bd. (336 U.S. 245, 259-260), "'the exercise of the unquestioned right to [strike]' * * * did not operate to legalize the sit-down strike, which state law made illegal and state authorities punished. [Case cited.] Nor, for example, did it make legal a strike that ran afoul of federal law [case cited]; nor one in violation of a contract made pursuant thereto [case cited]; nor one creating a national emergency [case cited]."

Although acknowledging that the right to strike is not absolute, the defendants would have us read the opinion in the Auto Workers case to mean that a prohibition against strikes will be upheld only where workers strike in violation of a no-strike clause or where there is a secondary boycott, violence or a trespass such as a sitdown. There is no basis for so narrowly viewing that decision. The Supreme Court did not limit the doctrine there applied to instances of illegal strikes mentioned by it. Rather, it laid down a general rule, applicable in all cases involving illegal strikes, namely, that the State, in governing its internal affairs, had the power to prohibit any strike if the prohibition was reasonably calculated to achieve a valid State policy in an area which was open to State regulation. (Cf. Teamsters Union v. Vogt, Inc., 354 U.S. 284, 294-295.)

Our query must, therefore, be whether the condemnation of strikes by public employees, as provided in the Taylor Law, does effectuate a valid policy of our State.

For many years, strikes against the Government have been outlawed by special legislation and by common law. Today, no less than 20 States have statutes condemning strikes by some or all of its public employees and at least seven States have achieved the same result by the application of common-law principles. (See Rubin, A Summary of State Collective Bargaining Law in Public Employment, published by Cornell University in 1968.) In addition, a Federal statute specifically provides that strikes by Federal employees are illegal (U. S. Code, tit. 5, ยง 7311). Substantial reasons are at hand for this almost universal condemnation of strikes by public employees. As Professor George W. Taylor, an outstanding authority in the field of labor relations and one of the architects of the Taylor Law, put it (Public Employment: Strikes or Procedures?, 20 Industrial and Labor Relations Rev. 617, 619),

"One of the vital interests of the public which should be conserved in the government-employee relationship is the ability of representative government to perform the functions of levying taxes and, through the budgeting of governmental resources, of establishing priorities among the government services desired by the body politic."

Quite obviously, the ability of the Legislature to establish priorities among government services would be destroyed if public employees could, with impunity, engage in strikes which deprive the public of essential services. The striking employees, by paralyzing a city through the exercise of naked power, could obtain gains wholly disproportionate to the services rendered by them and at the expense of the public and other public employees. The consequence would be the destruction of democratic legislative processes because budgeting and the establishment of priorities would no longer result from the free choice of the electorate's representatives but from the coercive effect of paralyzing strikes of public employees. (See Final Report [March 31, 1966] of the Governor's Commission on Public Employment Relations [hereafter referred to as the Taylor Report], pp. 15-16).

It was undoubtedly because of such considerations that Governor Thomas E. Dewey, in his Memorandum approving the Condon-Wadlin Act (L. 1947, ch. 391) -- the predecessor of the Taylor Law -- declared (N. Y. Legis. Ann., 1947, pp. 36-37):

"The duty of public employees is to the whole of society. A strike of firemen could overnight permit the destruction of a whole city. A strike of police could endanger the safety of millions of people and all their possessions. A strike of sanitation workers could almost overnight ...


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