TWU Ruling Injudicious

There was something curious about Brooklyn Supreme Court Justice Bruce Balter's decision Nov. 8 to ignore the wishes of the Metropolitan Transportation Authority and continue the suspension of automatic dues-deduction rights for Transport Workers Union Local 100. The MTA, after all, was the plaintiff in the case - the entity that sought and got another Brooklyn judge to suspend the union's dues rights as a penalty for the three-day strike in 2005.

Justice Balter acknowledged as much when, at the beginning of the hearing a day earlier, he stated that the city's chief lawyer, Michael Cardozo, could only speak to the matter from an "amicus," or Friend of the Court, status.

In the end, however, the judge bowed to the wishes of the Bloomberg administration in rendering his decision that dues check-off rights not be reinstated until a more-convincing statement against future strikes came from Local 100 President Roger Toussaint, as well as from each individual member of the union's executive board.

Not surprisingly, the ruling won him plaudits from the editorial pages of the News and the Post, notwithstanding the latter tabloid's past railing against "activist judges."

An Assistant State Attorney General who was representing the MTA told Justice Balter that in recent months there has been a good working relationship between officials at New York City Transit and Local 100, and that it was convinced that the union would continue to act in good faith.

As insurance against a reversion to the hostilities that produced the strike two years ago, he suggested a "middle ground" between the city's hard-line position and the union's insistence that it had met the conditions required for dues checkoff to be fully reinstated: conditional restoration of that right. Granting it on that basis would have allowed the MTA to have a judge immediately revoke check-off rights again if Local 100 even threatened a strike, rather than having to go through a lengthier legal process.

Such a safeguard, coupled with the tenuous hold that Local 100 President Roger Toussaint has on his members - more than half of whom voted for somebody else in the union election last December - seemed more than adequate to avert a strike threat when the current contract nears expiration in early 2009.

Justice Balter ruled otherwise, however, writing that Mr. Toussaint's statement affirming that the union had no right to strike "lacks credibility."

In essence, he decided against the wishes of both the union and MTA management because he did not consider Mr. Toussaint sufficiently contrite. It is no secret that the Local 100 leader's manners could use some improvement. Then again, he's hardly the only one, as Mike "he's not a hero" Bloomberg made clear before his apology to Joseph Zadroga for intemperate comments he made about the death of his son, a decorated Detective.

The News hailed Justice Balter's decision as "gutsy." The problem is, it seemed generated from the gut alone, without a more-cerebral consideration of the circumstances that led to the strike and how they have changed since then.

The action that spurred Mr. Toussaint to lead a walk-out two years ago was the MTA's demand late in the bargaining that the union accept a lesser pension tier for new workers. The demand was inflammatory, given Mr. Toussaint's known feelings on the subject. It was also inconsistent with the agency's call for the union to go to arbitration if the two sides couldn't bridge their differences, since it knew that the issue would have immediately been rejected for consideration by the arbitrators as a prohibited subject of negotiations.

The fact that the MTA chose to provoke Mr. Toussaint this way did not mean he had to take the bait and lead a strike that arguably produced inferior contract terms to what he would have gotten had he immediately accepted arbitration.

But that climate - and the way that it has changed since Eliot Spitzer became Governor and Lee Sander became the head of the MTA - should have weighed more heavily in Justice Balter's decision than the left-over anger about the strike that informed the Mayor's position.

Mr. Toussaint may be the face of Local 100, but he is not the union. Continuation of dues revocation for an extended period will further harm its ability to adequately service its members and weaken it in ways it is likely to be feeling long after he is gone.

The MTA's lawyer testified that Local 100 has behaved in a fashion that suggests it understands that cooperation will be more fruitful than confrontation. Justice Balter should have complied with the injured party's wish to bind old wounds.