May v. State , 86 A.D.2d 898 ( 1982 )

Main and Mikoll, JJ.,

dissent and vote to reverse in the following memorandum by Main, J. Main, J. (dissenting). We respectfully dissent for the reasons stated in our dissent in New York State Inspection, Security & Law Enforcment Employees, Dist. Council 82, AFSCME, AFL-CIO v State of New York (84 AD2d 448). Moreover, in reference to the claim of Jean Harney, we find the State’s contention, i.e., that it can make a retroactive adjustment to the penalty to account for the retroactive pay increase, to be a valid one. At the time of the strike, claimant’s rate of pay was not certain since it was the subject of negotiations and was not fixed until the bargaining agreement was consummated. Surely the Legislature did not intend that claimant, or any other striking employee, should be paid or credited with any amount while participating in an illegal strike. The judgments should be reversed and the claims dismissed.