Van Vlack v. Ternullo , 74 A.D.2d 827 ( 1980 )

Proceeding pursuant to CPLR article 78 to review a determination of a hearing officer which sustained a determination that petitioners had violated section 210 of the Civil Service Law. Petition granted, determination annulled, on the law, and charges dismissed, without costs or disbursements. Petitioners, who are maintenance workers and teachers employed at the Fishkill Correctional Facility, were determined to have violated subdivision 1 of section 210 of the Civil Service Law (Taylor Law), in that they refused to accept out-of-title emergency assignments as replacements for striking correction officers. A hearing officer determined that the petitioners had condoned the correction officers’ job action by refusing to accept the assignments and had not met their burden of proof that the refusal was due to a bona fide fear of personal injury and/or future reprisals. After a review of the record we conclude that the determination of the hearing officer was not supported by substantial evidence. The testimony taken as a whole indicates that the petitioners had attempted to report to their assignments but were prevented from doing so by picketing correction officers who verbally harassed, abused, and threatened them. This response from the correction officers, plus the inmates’ support for the strikers, instilled a tripartite fear in the minds of the petitioners of: (1) physical violence from the picketing correction officers; (2) future reprisals by the correction officers; and (3) lack of protection from inmate violence once inside the wards. Failure to accept out-of-title assignments because of a bona fide fear of personal injury and/or future reprisals cannot reasonably amount to a violation of the Taylor Law (cf. Matter of Rosenberger v Sanitary Dist. No. 6, Town of Hempstead, 28 AD2d 892, affd 22 NY2d 815; Matter of Buffalo Teachers Federation, 5 PERB 3025; Whirlpool Corp. v Marshall, 445 US 750). Gibbons, J. P., Rabin, Gulotta and Cohalan, JJ., concur.