Board of Educ. of the E. Meadow Union Free School Dist. v East Meadow Teachers Assn.

[*1] Board of Educ. of the E. Meadow Union Free School Dist. v East Meadow Teachers Assn. 2006 NY Slip Op 52654(U) [21 Misc 3d 1119(A)] Decided on August 14, 2006 Supreme Court, Nassau County LaMarca, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 14, 2006
Supreme Court, Nassau County

The Board of Education of the East Meadow Union Free School District, East Meadow, New York, Deborah A. Coates, Individually and as President Of the Board of Education of the East Meadow Union Free School District, Petitioners,

against

East Meadow Teachers Association; JOHN GALLAGHER, Individually and as President of the EAST MEADOW TEACHERS ASSOCIATION; MARY BARTOSZEK, Individually and as Vice President of the EAST MEADOW TEACHERS ASSOCIATION; GERMAINE FONTAINE, Individually and as Treasurer of the EAST MEADOW TEACHERS ASSOCIATION; JOHN GALLAGHER, MARY BARTOSZEK, GERMAINE FONTAINE and JUDY ARABIAN, Individually and as Members of the Negotiating Committee of the EAST MEADOW TEACHERS ASSOCIATION; ERIC GREENBERG, Individually; ERIC HELMING, Individually; FRANK FORTNEY, Individually, CHRISTINE PEER, Individually; KATHERINE DETROIA, Individually; ANN COLLINS, Individually; MARY MYERS, Individually and as a Representative and agent of the NEW YORK STATED UNITED TEACHERS; "JOHN DOE" and "JANE DOE" (said names being fictitious, their true names being unknown to Petitioners); being teachers and other professionals of Petitioner EAST MEADOW UNION FREE SCHOOL DISTRICT, who are members of or represented by the EAST MEADOW TEACHERS ASSOCIATION, Respondents.



6077/06



TO:Grotta, Glassman & Hoffman, PC

Attorneys for Petitioners

532 Broadhollow Road, Suite 142

Melville, NY 11747

James R. Sandner, Esq.

Attorney for Respondents

52 Broadway, 9th Floor

New York, NY 10004-1603

William R. LaMarca, J.

Requested Relief

Petitioners, THE BOARD OF EDUCATION OF THE EAST MEADOW UNION FREE SCHOOL DISTRICT (hereinafter referred to as "THE BOARD"), and DEBORAH A. COATES (hereinafter referred to as "COATES"), individually and as President of THE BOARD, move for an order, pursuant to Judiciary Law §§753 and 750(A)(3), to hold the respondents, EAST MEADOW TEACHERS ASSOCIATION and the individually listed members and representatives of said association (hereinafter collectively referred to as "EMTA"), in civil and criminal contempt of Court for having violated the terms of a permanent injunction issued by Hon. Justice John O'Shaughnessy, on July 8, 1991, (hereinafter referred to as the "1991 order"). EMTA opposes the motion and subsequently moves for an order and judgment dismissing the petition in its entirety, pursuant to CPLR §§404 and 3211 on the grounds that no lawful mandate exists at this time to support a finding of contempt and that the Court lacks jurisdiction over certain respondents. The motions are determined as follows:

Background

The instant proceeding, commenced on April 11, 2006 by order to show cause and petition, seeks to hold respondents in contempt of Court for violating a prior order of the Court, dated July 8, 1991. Said order was the result of a stipulation of settlement entered, on or about May 29, 1991, with respect to ongoing litigation at that time between THE BOARD and the EMTA which sought a permanent injunction enjoining the EMTA from picketing the private homes and places of employment of individual BOARD members and the Superintendent of Schools. Specifically, the stipulation of settlement provided as follows: SECOND: The defendant EMTA, and any successor to EMTA and its present and future officers, and all members of the EMTA and all teachers represented by EMTA or its successor and all future retirees presently or in the future represented by EMTA (hereinafter referred to as the "collective defendants") shall be permanently enjoined from engaging in targeted picketing, in any manner or by any means, on or about the private residences of members of the Board, the Superintendent, or any members of the administration of the District, or causing or encouraging anyone to so engage in targeted picketing of such residences. In addition, in no event shall the collective defendants engage in targeted picketing in any manner or by any means within five hundred (500) feet from the outer boundaries of the plaintiffs' private residences or the private residences of members of the administration of the District.[*2]

Thereafter, Justice O'Shaughnessy issued an order, dated July 8, 1991, expressly incorporating the terms of the parties' stipulation of settlement, including the above-cited clause, as follows:

Therefore it is So Ordered that the defendant EMTA, any successor to EMTA and its present and future officer, and all members of the EMTA and all teachers represented by EMTA or its successor and all future retirees presently or in the future represented by EMTA (hereinafter referred to as "collective defendants") shall be permanently enjoined from engaging in targeted picketing, in any manner or by any means, on or about the private residences of the members of the Board, the Superintendent, or any members of the administration of the District, or causing or encouraging anyone to so engage in targeted picketing of such residences. In addition, in no event shall the collective defendants engage in targeted picketing in any manner or by any means within five hundred (500) feet from the outer boundaries of the plaintiffs' private residences or the private residences of members of the administration of the District.

It appears that THE BOARD and the EMTA entered into a collective bargaining agreement (CBA) on May 13, 1991 for the term of September 1, 1990 to August 31, 1993 and that three (3) successor agreements followed: for September 1, 1993 to August 31, 1996, September 1, 1996 to August 31, 1999 and September 1, 1999 to August 31, 2004.

The basis for the instant action is that, on or about March 30, 2006, the above named respondents allegedly engaged in targeted picketing at the residence of DEBORAH A. COATES, presently the President of THE BOARD, from which petitioners allege respondents are permanently enjoined in accordance with the July 8, 1991 order of the Court. It is undisputed by the parties that, since September 2004, the BOARD and the EMTA have engaged in collective bargaining in an effort to reach a successor agreement to the CBA that expired on August 31, 2004, but, to date, no agreement has been reached. The petitioners allege that the respondents, including the EMTA, have taken several actions to protest the parties failure to reach a successor agreement, including picketing District school buildings as well as meetings of the Board of Education, wearing black t-shirts on designated school days and wearing buttons. Petitioners further allege that the respondents have, most recently, targeted the home of DEBORAH COATES, the President of the BOARD , and her family. Thus, petitioners contend that the respondents' conduct is in direct violation of Judge O'Shaughnessy's July 8, 1991 order enjoining "targeted picketing in any manner or by any means" of the residences of the members of the BOARD. Petitioners urge that respondents be found in civil and criminal contempt of court and be fined and imprisoned accordingly.

In opposition to the petition and in support of dismissal, respondents contend that the petition must be dismissed because the prior order that forms the basis of the petition expired back in September 1993 when the CBA between the parties was succeeded by a new agreement effective for September 1, 1993 to August 31, 1996. Respondents cite Nassau County v Adjunct Faculty Ass'n of Nassau Community College, 65 NY2d 672, 491 NYS2d 622, 481 NE2d 254 (C.A 1985), which affirmed Second Department's holding (100 AD2d 924, 474 NYS2d 807 [2nd Dept. 1984]) that injunctions expire contemporaneously with the expiration of the collective bargaining agreement in effect at the time of injunction. It is respondents' position that they have not disobeyed a lawful mandate of the Court because the July 8, 1991 order, which expired more than twelve (12) years ago, cannot be the basis for a finding of either civil or criminal contempt. Moreover, assuming arguendo [*3]the order to be in effect, respondents claim that petitioners cannot establish wilful disobedience of the order. Respondents argue that, on March 26, 2006, they exercised their First Amendment constitutional rights by demonstrating on their own behalf in favor of reaching a successor agreement. They urge that the petition be dismissed in its entirety.

The Law

§753 of the Judiciary Law empowers the Court to punish for civil contempts, as follows: A. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases: ***

1. An attorney, counsellor, clerk, sheriff, coroner, or other person in any manner duly selected or appointed to perform a judicial or ministerial service...for disobedience to a lawful mandate of the court, or of a judge thereof, or of an officer authorized to perform the duties of such a judge.

(Judiciary Law §753[A][1])( emphasis supplied).

§750 of the Judiciary Law empowers the Court to punish for criminal contempts, as follows:

A. A court of record has power to punish for a criminal contempt, a person guilty of any of the following acts, and no others:

3. Wilful disobedience to its lawful mandate.

(Judiciary Law §750[A][3])

The law of contempt is well settled. The Court of Appeals in Matter of McCormick v Axelrod, 59 NY2d 574, 466 NYS2d 279, 453 NE2d 508 (C.A. 1983), emphasized the distinction between the two different remedies, as follows: Civil contempt has as its aim the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right. . . Criminal contempt, on the other hand, involves vindication of an offense against public justice and is utilized to protect the dignity of the judicial system and to compel respect for its mandates . . ..(citations omitted).

Thus, the issues in a civil contempt proceeding are: (1) that a lawful order of the court was in effect; (2) that there was a clear unequivocal mandate; (3) that the respondent had knowledge of the order; (4) that there is proof to a reasonable certainty that the order has been disobeyed; and (5) that the rights of a party were prejudiced (Matter of McCormick v Axelrod, supra ).

Criminal contempt presents different issues. The Court of Appeals has held that "the element which serves to elevate a contempt from civil to criminal is the level of willfulness with which the conduct is carried out" (Matter of McCormick v Axelrod, supra ). The concept of willfulness requires a determination beyond a reasonable doubt rather than to a reasonable certainty (County of Rockland v Civil Service Employees Assn, 62 NY2d 11, 475 NYS2d 817, 464 NE2d 121 [C.A. 1984]). In order to find respondent in contempt of Court, the Court must find that a lawful order of the court, [*4]clearly expressing an unequivocal mandate, was in effect (Matter of McCormick v Axelrod, supra ). A permanent injunction in a labor dispute, such as the one at bar, may only bind the parties for the same period that the CBA between the parties is in effect. County of Nassau v Adjunct Faculty Association of Nassau Community College, supra . The Court finds County of Nassau to be directly on point. In said case, the parties stipulated to a permanent injunction and an order was signed, on November 7, 1980, prohibiting a strike or work stoppage and the CBA expired on September 30, 1982. The Adjunct Faculty Association (AFA) therein commenced a strike on October 11, 1982, and the County of Nassau initiated a proceeding to hold the AFA in criminal contempt of the November 7, 1980 order. The court ruled, however, that the predicate order issuing the injunction expired at the same time the CBA expired and could not constitute the basis for criminal contempt. In County of Nassau, no contempt was found for conduct occurring within two weeks after the CBA expired. In the case at bar, where the expired permanent injunction is over twelve years and three CBA's removed, the Court finds, a fortiori, no basis for a finding of contempt. Herein, there is no doubt that the CBA in effect at the time of the July 8, 1991 order expired on August 31, 1993. Consistent with County of Nassau, respondents cannot be held in contempt of an expired order.

Moreover, the parties herein are currently engaged in a labor dispute (New York Labor Law §807[10][c]). Under Labor Law §807(8), "no permanent injunction shall remain in force for more than six months from the date on which the judgment is signed, provided, however, that the duration of the injunction may be extended for another six months...". Here, petitioners seek to extend the duration of a 1991 permanent injunction by fifteen (15) years without citing any supporting authority.

Conclusion

Based on the foregoing, it is hereby

ORDERED, that petitioner's application for an order finding respondents in contempt of Court is denied; and it is further

ORDERED, that respondent's application for an order dismissing the petition is granted.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Settle Judgment on Notice.

Dated: August 14, 2006

_________________________

WILLIAM R. LaMARCA, J.S.C.

boardofedofeastmeadow-eastmeadowteachersassoc,#

01,#

02/dismissal