Defendants are the President and two other members of the Executive Board of the Uniformed Firefighters Association (UFA). They have been indicted for Reckless Endangerment in the Second Degree and related crimes arising from their role in calling the first strike of firemen in New York City history on November 6, 1973.
It appears therefrom that the UFA, for a time prior to the strike, had been engaged in negotiations with the City for a new collective bargaining agreement. During the pendency of these negotiations, its rank-and-file membership passed a resolution authorizing the Executive Board to conduct a mailed secret ballot of the membership to determine whether the Board should be enabled to call a total strike of the firefighters of the City of New York at a time and date to be determined by the Executive Board. The result was that New York City’s firefighters voted not to strike. Nevertheless, the defendants conspired to conceal the true outcome of the ballot from both the membership and the public and decided instead to falsely announce that the membership of the UFA had voted overwhelmingly in favor of a total strike. In conjunction with this initial deception, the criminal defendants planned and attempted to coerce the City to accept their contract terms by falsely representing the existence of the strike mandate to the City’s negotiators. Finally, on November 6, 1973, the defendants did in fact call and caused a virtual total strike of the firefighters of New York City–a strike that the firemen themselves, still ignorant of the true outcome of the ballot, had democratically voted against.
A fire then broke-out for five and a half hours throughout the city, desperate civilians and some police officers sounded alarms, lugged their own hoses, broke windows in smoke-filled buildings and prayed anxiously that the small force of non-striking firemen could get to the fires in time.
Afterwards, defendants herein were charged for five counts:
1. Conspiracy to commit the crime of Reckless Endangerment in the Second Degree;
2. Alleges the substantive crime in charging that the defendants ‘recklessly engaged in conduct which created a substantial risk of serious physical injury to other persons by causing the People of the City of New York to be deprived substantially of the firefighting services of the members of the Fire Department of the City of New York for five and one-half hours notwithstanding the high daily incidence of fires in various structures occupied by persons throughout the City of New York;
3. Reckless Endangerment of Property;
4. Coercion in the Second Degree; and
5. Attempted Coercion in the Second Degree.
Both the fourth and fifth indictments were in relation to the collective bargaining agreement by the UFA to the City government.
The principal contention made by the defendants is that a strike by firemen cannot be the subject of a criminal prosecution because the legislature intended the Taylor Law to provide the exclusive remedy and sanctions for public employee labor disputes.
Before reviewing the merits of this contention, however, it must be promptly observed that should the allegations of fraud contained in the indictment be true, the defendants lack any standing to seek refuge behind the existence of the Taylor Law. For the gravamen of the charges against these defendants, then, is not in striking but rather in causing the City of New York to be deprived of the protection of its firefighters.
In any event, it has been held that the Taylor Law does not provide the exclusive remedy for public employee strikes. In a similar case the contention was unanimously rejected by the Appellate Division, a civil case in which the municipal union servicing New York City’s sewage treatment facilities was sued by the government for the results of a strike which, allegedly, sent a billion gallons of raw sewage oozing its way toward the beaches of Long Island Sound. Said the Criminal Court, denying defendant’s motion to dismiss the suit (in language which is tailored to the instant case):
‘The Taylor Law reflects the Legislature’s attempt to delicately balance the rights of public employees against those of their employers. It was intended to monitor employer-employee relationships and not public employee relations with the public.
Read the way the defendants suggest, the Taylor Law would become an impenetrable shield of immunity for public employees who may illegally cause serious damage to persons or parties other than their employer. There is no support for such protection in the statute itself, in the language of the legislative committee which studied the area and drafted the bill, or in reason. Nor is there any wisdom in a decision which puts the ‘right’ of a public union to engage in illegal activities entirely beyond the court’s ability to find suitable redress, particularly in the compelling circumstances of the instant case, where the union activities endangered the lives and health of millions of persons and caused possibly irreparable damage to the environment.
The attempt to have this Court interpret the Taylor Law as an indication of a legislative objective to preclude criminal liability for public employee strikes fails in one other significant respect. This is evident from the fact that the provisions of the Taylor Law are applicable to strikes affecting a wide spectrum of public services, most of which do not directly involve [78 Misc.2d 1046] public safety. It is possible to conclude therefrom that the legislature considered the majority of public employee strikes to be at least momentarily tolerable so that civil sanctions and injunctive relief under the Taylor Law would be workable and adequate remedies in those instances, but that the legislature left strikes with more serious consequences to whatever penalties might otherwise attach. In other words, when human lives are placed in immediate peril by the strike of a vital government service, the stakes are higher and so should be the penalties, particularly when there is no injunctive process swiftly enforceable enough to forestall the possible immediate and irreparable harm to lives and property. Those in a position of power in a democracy must act with responsibility. The greater the power that breaches its trust, the greater the consequences of the breach must be and the less tolerant the Court can be of defiance of the law.
The only other arguments worthy of mention pertain to the coercion charges. The relevant portions of the statute (Penal Law § 135.60) are set forth in the margin below. 7 Defendants [78 Misc.2d 1049] claim that a union’s threat to cause a strike to compel acceptance of its demands cannot constitute coercion in view of the exception contained in subdivision six for strike threats made in order to obtain union benefits. This contention overlooks two readily observable points.
First, subdivision six and its exception apply only to a threat to cause a strike injurious to some person’s Business. The strike threatened in this case was one that would cause the paralysis of a governmental function and be injurious to lives and property. Second, the defendants are not charged in this case with a violation of subdivision six but rather with a violation of subdivision three, that is, with threatening to engage in conduct constituting a crimes (reckless endangerment) in order to compel the City’s negotiator to capitulate to their demands.
The Unions who gave their amicus curiae claims that to uphold the coercion counts in this case would be to inhibit the bargaining ability of union negotiators and thereby ‘destroy the entire collective bargaining process’. Such overstatement, however, is belied by the rarity and uniqueness of a situation which creates the kind of immediate public danger presented by a strike of New York City firefighters. It is belied as well by the essentially narrow basis for criminal prosecution which emerges from the indictment and decision in the instant case. These defendants, it is charged in substance, represented to negotiators that they had been given the power to permit the imminent destruction of lives and property in this City and threatened to exercise that awesome power if their demands were not met.
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