Opinion
November 23, 1970
This appeal is from a judgment which dismissed a petition under CPLR article 78. The questions involve the constitutionality of subdivisions (1) and (2) of section 210, of the Civil Service Law which prohibits strikes by public employees or employee organizations and our attention is more specifically directed to that part of the section which requires "notice". Section 210 (subd. 2, par. [e]) of the Civil Service Law provides: "(e) Notice. The chief executive officer shall forthwith notify each employee that he has been found to have committed such violation and the date or dates thereof; 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." In the present proceeding the notice sent to the petitioners stated: "Please treat this letter as notice under Section 210 (e) of the New York State Civil Service Law (Taylor Law) that as Chief Executive Officer of Central School District No. 1 of the Town of Vestal, Broome County, New York (commonly known as Vestal Central Schools) I have found that you as an employee of said District on October 2, 1969 have committed a violation of the `Prohibition of Strikes' as set forth in said law by your absence from work and abstinence from full performance of your duties at your designated school in the normal manner without permission. I have no other choice but to notify the Chief Fiscal Officer of the District that said section has been violated and thus, one day's compensation will be immediately withheld from your salary for this pay period." Conceivably the phraseology of the notice might have been more artfully phrased, but it is sufficiently clear and unambiguous so as to constitute a compliance with the statute. Factually, on October 2, 6 and 7, 1969 the petitioners-teachers employed by the Vestal Central School District engaged in a strike against their employer. The above notice was dated October 6, 1969, and a substantially similar notice, dated October 14, 1969, was given as to the strike dates of October 6 and 7, 1969. The said section 210 provides for administrative review of the initial determination that an employee has violated the section and the teachers involved herein did not attempt to utilize such review procedures. It does not appear that the system of review by objection is necessarily inadequate to satisfy the requirements of due process and the statute expressly provides for review by the courts in an article 78 CPLR proceeding. The failure to seek administrative review forecloses any consideration in this court as to whether or not there was any strike and whether or not the individual teachers given such notice participated therein. We do not perceive any merit as to the appellants' contentions in regard to the constitutionality of prohibiting public employees' strikes and imposing administrative sanctions in the form of salary reductions. (Cf. Matter of Di Maggio v. Brown, 19 N.Y.2d 283.) Judgment affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur. [ 62 Misc.2d 281.]