Summary
In Van Vlack v Ternullo (53 N.Y.2d 1003) we similarly sustained a determination that there had been a strike within the contemplation of the Taylor Law when maintenance workers and teachers at the Fishkill Correctional Facility refused to accept out-of-title emergency assignments as replacements for striking correction officers where the hearing officer who heard the testimony concluded that the employees had not met their burden of proof that their refusal was due to a bona fide fear of personal injuries or future reprisals or both.
Summary of this case from Local 252, Transport Workers Union of America v. New York State Public Employment Relations BoardOpinion
Argued May 7, 1981
Decided June 4, 1981
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Robert Abrams, Attorney-General (John Q. Driscoll and Shirley Adelson Siegel of counsel), for appellants.
Michael J. Smith for respondents.
MEMORANDUM.
The judgment of the Appellate Division should be reversed, with costs, and the determination of the hearing officer reinstated.
While there was evidence that some civilian employees were threatened with violence if they crossed the correction officers' picket lines, there was also testimony that some had crossed the lines without incident. There was no testimony of any actual violence or injuries on the picket lines. Offers were made to provide safe passage through the gates in trucks.
The hearing officer heard and saw the witnesses, particularly the petitioners who testified. He was best able to judge by observation of their demeanor and otherwise the credibility and probative worth properly to be accorded their testimony. Particularly is this so when the ultimate issue was the subjective state of mind of the witnesses. Based on all the testimony before him, the hearing officer found that there was no real demonstration of violence on the picket lines, and that petitioners had "failed to bear the burden of proof that their refusal to accept assignments was due to a bona fide fear of personal injury and/or future reprisals".
Taking into account both the statutory rebuttable presumption that an employee "who abstains wholly or in part from the full performance of his duties * * * when a strike occurs, shall be presumed to have engaged in such strike" (Civil Service Law, § 210, subd 2, par [b]) and the testimony in the record with the inferences reasonably to be drawn therefrom, we conclude that there was substantial evidence to support the determination of the hearing officer that petitioners had violated section 210 of the Civil Service Law.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Judgment reversed, etc.