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TEPPER v. GALLOWAY

December 21, 1979

In the Matter of the Application of WARREN TEPPER, JOHN A. COOPER, LEE J. ISABELL, MARJORIE LEE, JOSEPH PASSARETTI, NICHOLAS POULOUS, ELEANOR SAWYER, individually and on behalf of all others similarly situated, Plaintiffs, against JAMES GALLOWAY, Superintendent of Schools, and the BOARD OF EDUCATION OF THE WYANDANCH UNION FREE SCHOOL DISTRICT, Defendants.


The opinion of the court was delivered by: PRATT

MEMORANDUM AND ORDER

At least five times in the past five years, and four times in the past twelve months, *fn1" New York public employees have argued to a federal district court that the penalty provisions of the Taylor Law violate due process because (1) the penalties are assessed without recourse to an impartial tribunal and (2) the penalty procedures amount to an illegally severe prejudgment garnishment of wages.

 This, the sixth suit in the series, arises out of the Wyandanch teacher strike of 1979, a strike which was unusually long and bitter. The matter was brought on by plaintiffs' order to show cause seeking preliminary relief, at 5:00 p.m., December 11, 1979. At oral argument, the parties agreed that no material issue of fact was in dispute, and that the court could properly proceed to a final decision on the merits based on the argument and the papers submitted. Accordingly, pursuant to F.R.C.P. 65, plaintiffs' motion for a preliminary injunction is consolidated with trial on the merits. For the reasons set forth below, judgment is granted in favor of defendants and the complaint is dismissed.

 THE TAYLOR LAW

 Analysis must begin with the Taylor Law itself. The Taylor Law was enacted in 1967:

 
to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government. These policies are best effectuated by * * * (e) continuing the prohibition against strikes by public employees and providing remedies for violations of such prohibition. New York Civil Service Law § 200 (hereinafter references to Article 14 of the Civil Service Law, popularly known as the Taylor Law, will be by Civil Service Law section number only).

 The prohibition referred to in § 200 is expressly set forth in § 210.1 which reads: "no public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike." Elsewhere, it is explained that "The term "strike' means any strike or other concerted stoppage of work or slowdown of public employees." § 201.9.

 The initial determination of whether an illegal strike has occurred is made by "the chief executive officer of the government involved", § 210.2(d), which also provides that:

 
If the chief executive officer determines that such violation has occurred, he shall further determine, on the basis of such further investigation and affidavits as he may deem appropriate, the names of employees who committed such violation and the date or dates thereof. Such determination shall not be deemed to be final until the completion of the procedures provided for in this subdivision.

 Once the chief executive officer has "determined" that an illegal strike has occurred, and has identified the employees involved, he shall:

 
forthwith notify each employee that he has been found to have committed such violation (,) the date or dates thereof and of his right to object to such determination pursuant to paragraph (h) of this subdivision; he shall also notify the chief fiscal officer of the names of all such employees and of the total number of days, or part thereof, on which it has been determined that such violation occurred. Notice to each employee shall be by personal service or by certified mail to his last address filed by him with his employer. § 210.2(e).

 The Taylor Law allows an employee determined to have engaged in an illegal strike to file "objections" to this determination with the chief executive officer. The chief executive officer must evaluate the objections, and refer any material questions of fact to a hearing officer appointed by the chief executive officer. Throughout the proceedings, the employee bears the burden of proving that he was not involved in an illegal strike on the day or days in question. The employee must overcome a statutory presumption that:

 
an employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his duties in his normal manner without permission, on the date or dates when a strike occurs, shall be presumed to have engaged in such strike on such date or dates. § 210.2(b).

 However, the determinations of the chief executive officer and his hearing officer are reviewable by Article 78 proceeding. § 210.2(h).

 Once the chief executive officer has made his initial "determination" that an employee engaged in an illegal strike, the employee becomes subject to Taylor Law penalties:

 
Not earlier than (30) nor later than (90) days following the date of such determination, the chief fiscal officer of the government involved shall deduct from the compensation of each such public employee an amount equal to twice his daily rate of pay for each day or part thereof that it was determined that he had violated this subdivision; such rate of pay to be computed as of the time of such violation. In computing such deduction, credit shall be allowed for amounts already withheld from such employee's compensation on account of his absence from work or other withholding of services on such day or days. § 210.2(g).

 These payroll deductions are what plaintiffs call the Taylor Law's "two for one penalties". A public employee determined to have engaged in an illegal strike receives no compensation while striking and is subject to later payroll deductions of one day's pay for each work day he was on strike. The payroll deductions are mandatory, and are not stayed by the filing of objections with the chief executive officer, or the commencement of an Article 78 proceeding. However, if the initial determination is later reversed, "The chief fiscal officer * * * shall thereupon cease all further deductions and refund any deductions previously made pursuant to this subdivision." § 210.2(h).

 These provisions of the Taylor Law constitute a comprehensive plan and procedure to deter strikes by public employees, by meting out quick and certain punishment to public employees who engage in illegal strikes. It is plaintiffs' contention that in the context of the Wyandanch strike, the Taylor Law penalties are too quick and too certain to comport with the due process clause of the constitution.

 THE TAYLOR LAW AND THE WYANDANCH STRIKE

 There is no dispute that from September 17, 1979 through November 16, 1979 some 150 employees of the Wyandanch Union Free School District, including the plaintiffs, engaged in a strike in violation of the Taylor Law. *fn2" Superintendent Galloway, the chief executive of the government involved, made his first official "determination" of an illegal strike on September 21, 1979, when he notified the approximately 150 affected employees by certified mail that a strike determination had been made. *fn3" Follow-up "determinations" were made by mailing additional letters on October 10, November 14, and November 16, 1979. *fn4" A total of 23 "objections" to the determinations were received by the chief executive officer. *fn5" None of these objections questions the superintendent's determination that an illegal strike occurred. Rather, the objections are to determinations that the absence of a particular employee on a particular day was due to the strike. *fn6" To date, the superintendent has neither ruled on the objections received nor appointed a hearing officer to resolve possible factual disputes.

 During the strike, paychecks were not issued. Paychecks have not been issued since the strike ended on November 16, 1979, because of the Taylor Law payroll deductions. Payroll deductions began when the teachers returned to work on November 19, 1979, more than 30 and less than 90 days after the superintendent's "determination" of October 10, 1979. Pursuant to § 210.2(g), for each school day missed during the strike, a full day's pay is being deducted from plaintiff's pay after the strike (within the 30 to 90 day period). Thus, for their first 18 school days back on the job, November 19, 1979 to December 13, 1979, plaintiffs' earnings were cancelled out by deductions for the first 18 school days missed during the strike, September 16, 1979 to October 10, 1979, these days having been covered by the superintendent's "determination" of October 10, 1979. Then, on December 14, 1979, the determination of November 14, 1979 became grounds for deducting one full day's pay for the next 24 school days' work. *fn7" The deductions arising from the November 14 and November 16 determinations will cancel out plaintiffs' earnings for the rest of this month, and, it appears, at least well into January, 1980. Thus, the Taylor Law's two for one penalty provisions applied to the 41 day Wyandanch school strike will effectively deprive plaintiffs of their paychecks from September 1979 through January 1980, approximately the first half of the school year.

 The severity of this deprivation is demonstrated in the affidavits of the named plaintiffs. Plaintiff Joseph Passaretti, for instance, states that:

 
The imposition of the entire forty-one (41) day deduction during the 60-day period is unjust and will cause me and my family irreparable harm since I am currently paid a gross salary monthly of $ 1,800. After withholding, my net income for this monthly period is $ 1,360. Deductions for the fines will amount to $ 4,920. This will leave me with zero income during the 60-day period.
 
I have not been paid at all by the Wyandanch Union Free School District since my return to work on November 19, 1979.
 
This is grossly unfair and an additional hardship since I obviously have not been paid since September 17, 1979 making my financial situation impossible and I believe that I will be unable to provide my family with adequate food, clothing and medical care. Also, I will not be able to pay bills already due.
 
I currently have the following monthly expenses for the necessary support and medical care required by my family:
 
$ 293 mortgage; $ 230 home maintenance; $ 400 food; $ 65 automobile. If my take home pay is reduced to zero, I will obviously be unable to supply these necessities.
 
I also have outstanding loans to pay off totaling $ 306 per month plus $ 150 per ...

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