Chief-Leader, December 31, 1999
City Withdraws Its Court Case Against TWU
By RICHARD STEIER
The Giuliani administration Dec. 22 sought to withdraw from a case it had brought enjoining transit workers from striking and subjecting them to severe penalties for even talking about a walkout.
Several activist lawyers said ·the following day that they would pursue a court ruling or legislation that would make it clearly illegal for a Mayor to restrain speech prior to an actual strike, or to make strikers liable for penalties exceeding those spelled out under the Taylor Law.
A Bluff That Worked?
Mayor Giuliani’s attempt to withdraw from the court proceeding at a time when Transport Workers Union Local 100 has not yet ratified its tentative contract lent credence to the suspicion that he used the threat of severe penalties to avert a strike knowing he might not prevail on the merits at a later court proceeding.
TWU International President Sonny Hall and Local 100 President Willie James, who were curiously muted about the injunction before bargaining was concluded, called last week’s action an admission by the city that its effort to stifle the free speech of individual transit workers would not stand the test of full legal proceedings.”
They accused Mr. Giuliani of being “a Mayor intoxicated with power.”
But members of a dissident faction of Local 100 and their lawyers charged that the TWU leaders’ meek reaction at the time the injunction was issued allowed many union members to be intimidated and weakened Local 100’s bargaining position.
‘Riot Act’ Had Impact
“You had the riot act being read to members at the final hours of our contract expiration “said Roger Toussaint, a leader of the New Directions group who argued that Local 100 might otherwise have been able to negotiate better raises than the 15.8-percent most can expect to receive from a combination of wage hikes and reduced pension contributions under the tentative deal.
He argued that rather than accept the terms of the restraining order, Mr. James should have immediately broken off negotiations with the Metropolitan Transportation Authority. Instead, Mr. Toussaint asserted, “Mr. James continued to negotiate with a gun to his head, naked and shackled at the bargaining table.”
Mr. James insisted in his statement with Mr. Hall that the court order had not compromised his bargaining position.
In contrast to Mr. Toussaint’s harsh assessment of the tentative contract, officials from several other unions have praised the Local 100 “deal as a good one that they hope will serve as a model for their own negotiations with the city or state.
Several activist attorneys joined with the dissidents in assailing the Mayor for what Michael Letwin, head of the union representing Legal Aid lawyers, called “mugging the First Amendment.”
New York Civil Liberties Union Executive Director Norman Siegel called a portion of the court order forbidding Local 100 officials from taking a strike vote “an unprecedented and unconstitutional prior restraint.”
Taylor vs. Free Speech
Mr. Siegel said that while the Federal courts have previously indicated that advocating a strike enjoys the protection of the First Amendment, no court in New York State has ruled as to whether the Taylor Law’s prohibition of public-employee strikes can be used to make it illegal to even vote on a walkout.
Both he and Arthur Schwartz, a lawyer for New Directions, pointed out during a press conference at the NYCLU’s offices that there have been numerous cases in which union rank and files have voted to authorize a strike but then not walked off the job. A strike vote is commonly viewed as a way of improving a union’s bargaining leverage by signalling its members are willing to walk out if acceptable contract terms are not proposed.
Hours after the Dec. 15 settlement of the Local 100 contract, Mr. Schwartz had argued before Brooklyn Supreme Court Justice Michael Pesce–who issued the restraining orders for both the Mayor and the MTA–that it was unconstitutional to bar a strike vote.
Citing previous rulings, Mr. Schwartz noted, “If you attempt to violently overthrow the government of the United States, you’ll be arrested and placed in jail, but if you advocate the violent overthrow of the United States, the Supreme Court says you can’t be put in jail; you can’t be arrested.”
Treason Yes, Strike No?
This meant, he continued, that it made no sense for Mr. Pesce to have barred a strike vote, since it created a situation in which a union activist could freely advocate the overthrow of the government but would be jailed for calling for a strike.
City Corporation Counsel Michael Hess had questioned that theory, arguing, “They can’t take votes on an illegal act.” He went on to say, “They certainly can advocate, in a theoretical way,
that the [Taylor] law should be changed, but not that they should be able to strike, and throw the city into chaos.”
Mr. Schwartz last week accused city officials of seeking to withdraw from the case “to evade court review and avoid a binding court ruling that their actions are unconstitutional.”
A Timely Issue
Getting such a ruling, he said, remained a timely issue even if the Local 100 contract is ratified, given the coming round of bargaining municipal unions have with the Giuliani administration.
Ed Ott, a spokesman for the AFL-CIO New York City Central Labor Council, said at the NYCLU press conference that his organization’s attorneys planned to meet Dec. 28 to discuss possible amendments to the Taylor Law.
Among the issues they will consider, he said, was whether language in the Taylor Law stating that employees who strike will be subjected to the loss of two days’ pay for each day they do not work should be clarified so that it is understood that they would not be subject to fines beyond that penalty merely for walking off the job.
Mr. Giuliani’s court order allowed employees to be fined $25,000 on the first day of the walkout, with the penalty doubling for each succeeding day on strike, meaning that had a job action matched the 11-day duration of the 1980 transit strike, individual workers would each have been subject to more than $25 million in fines.
“It was chilling,” Mr. Ott said in describing the impact that prospect bad on many employees as the contract deadline loomed.
He said Central Labor Council officials were also concerned that as the Taylor Law is currently written, “There’s no weight on management to make sure that negotiations are proceeding smoothly.”
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