Opinion
July 10, 1967
In a proceeding pursuant to CPLR, article 78, transferred to this court for disposition, petitioners seek to annul a determination of the respondent Board of Commissioners, that petitioners had violated section 108 Civ. Serv. of the Civil Service Law. Petition granted and determination annulled, without costs. On April 12, 1966, hearings before a hearing officer of the Labor Department were commenced with respect to applications of petitioners and coemployees for increased compensation on the ground that respondents were not paying them the prevailing rate (Labor Law, § 220). The attorney for the Sanitary District refused to stipulate with respect to the job status of the employees. The attorney for the employees refused to enter into any agreement whereby the latter might appear to testify in small groups and threatened to bring 81 employees en masse to the hearing on the following day. He made good this threat when, without any justification, he informed the business agent of the union of which the employees were members that they had to be in court on April 13, 1966. The employees were met by an unofficial leader immediately outside their place of work when they reported the following morning. They were told they had to appear as witnesses at the hearing. In consequence they absented themselves despite the work order of a superior. They returned for work on the following day, April 14, 1966, but were informed that by reason of violation of section 108 Civ. Serv. of the Civil Service Law they were no longer employees. Hearings before hearing officers of the respondent District ensued throughout June, 1966, in accordance with the requests of the employees, to show that they had not violated the provisions of the section. In accordance with undisputed and ample proof these hearing officers found, and the district confirmed, that the employees apparently believed for the most part that they were absenting themselves in obedience to what appeared to them to be a peremptory command of a fully empowered judicial tribunal and believed they were under judicial compulsion to attend the hearing. The hearing officers also refer in their confirmed report to the "good faith" of the employees. It was held, nevertheless, that the employees had violated section 108. The determination was founded upon two erroneous conceptions: (1) that willfulness is not an essential element; and (2) that the employees absented themselves on the single day, in the language of the statute (§ 108, subd. 1), "for the purpose of inducing, influencing or coercing a change in the conditions or compensation, or the rights, privileges or obligations of employment". They did so, it was found, because the Labor Department hearing was concerned with improvement of their jobs as collectors of garbage. The employees attended the hearing not because they sought to induce betterment in the employment but because in good faith they believed, under the circumstances presented, that they had to go to a judicial tribunal as witnesses. This is not a Condon-Wadlin case ( Matter of Bagot v. Peterson, 276 App. Div. 1014). (See related appeal and proceeding Sanitary Dist. No. 6 v. O'Hare, 28 A.D.2d 921 and Matter of Badalucco v. Sanitary Dist. No. 6, 28 A.D.2d 877, decided herewith.) Rabin, Acting P.J., Hopkins, Benjamin, Munder and Nolan, JJ., concur.