Benito Giuliani

Rudy Giuliani was in trouble. New Yorkers were up in arms over police brutality against African Americans and heartless government policies against the homeless. And the mayor made an ass of himself with his intolerant stance toward the Brooklyn Museum of Art. It appeared his grip on the city was slipping.

But then, in November, Local 100 of the Transport Workers Union (TWU) entered into contract negotiations with the Metropolitan Transportation Authority (MTA). Suddenly the mayor's future brightened. As negotiations careened perilously toward a December 15 deadline, the city braced for a strike. Government officials organized emergency backup plans. The MTA reminded the union that New York's Taylor Law prohibited public employees from striking. Commuters organized car pools.

Sensing a golden political opportunity to, in the words of his chief lawyer, "save the people of the city ... from a wide-ranging catastrophe," Giuliani had Michael Pesce, a state administrative law judge, issue a temporary restraining order so far-reaching it literally enjoined people from thinking certain thoughts. The order prohibited transport workers from striking, from voting to strike, and from "encouraging or condoning, or lending support or assistance of any nature to any strike." It forbade all communication, written or spoken, that had the "intent, purpose, or effect to encourage or support" a strike. Pesce even prohibited individuals from being "in favor of" a strike.

Pesce addressed the order not only to union leaders and members but to "all other persons whomsoever, known or unknown, acting in [the union's] behalf or in concert with them in any manner or by any means." The order could apply to a husband encouraging his wife to walk off the job, to labor leaders rallying on behalf of striking subway workers, even to a kindly person handing a cup of coffee to a bus driver walking a picket line. Prescribing penalties far in excess of those set out by the Taylor Law, Pesce threatened unions with $1 million fines and individual violators with $25,000 fines for just one day's transgression. Fines were to double for each day of continued defiance.

In a seven-year regime marked by intolerance and an instinct for repression, this was Giuliani's most audacious demarche yet against civil liberties. Fresh from their successful mobilization over the Diallo killing and the multicultural Madonna, however, liberals should have been well placed to launch a counterattack.

But they didn't even try. With a few exceptions, there was only silence. Not until a few weeks later did the labor movement speak up (at a little-noticed press conference), and by then, it was too late.

The most dramatic silence emanated from the Transport Workers leadership itself. On the day Pesce issued his order, Willie James, president of Local 100, said nothing. James's attorney, Malcolm Goldstein, refused to challenge the order in court. Instead, Goldstein aligned himself with Michael Hess, the city's corporation counsel, explaining that he "had talked to [Hess]" and that he and Hess were "agreeable to a very brief adjournment of this matter...." While acknowledging that the order "took your First Amendment rights away," Tommy Cassano, James's right-hand man, insists that he and the leadership were "focused on getting a good agreement" and did not want to be "distracted" by the order. And in fact, just after Pesce handed down his order, Local 100 and the MTA did in fact reach an agreement.

But there was nothing in the agreement precluding the union from opposing the restraining order. Arthur Schwartz, attorney for dissident forces in the union, did oppose the order in court, as did the Center for Constitutional Rights, the Association of Legal Aid Attorneys, and the ACLU. Why didn't the TWU attorneys join them?

Not opposing the order was a mistake; it colored not only the immediate negotiations but also the political landscape. By failing to fight the injunction, the TWU accepted the premise that arguing against the settlement was tantamount to arguing for an illegal strike. The restraining order thus made it difficult for the rank and file to oppose the contract, to push for a better settlement, or even to challenge the restraining order itself.

Instead of surrendering, the union could have appealed to the city's labor movement to demonstrate against Giuliani's violations of civil liberties. Such a move would have been smart because in the coming months, Giuliani will have to negotiate contracts with some 300,000 other municipal employees--right in the middle of his senatorial campaign. According to various murmurings from his lawyers, he may seek a similar restraining order. But he may not have to, thanks to the regrettable failure of the labor and liberal communities to challenge this one.

Restraining orders and injunctions are powerful weapons against workers because they are quickly secured from judges and easily intimidate the rank and file. That is why the modern labor movement declared the end of injunctions, or "judge-made law," one of its early goals. In 1932 it succeeded with the passage of federal legislation sponsored, ironically, by Giuliani's most illustrious predecessor, Fiorello La Guardia.

Giuliani's actions, though they may have boosted his standing in the polls (after the fiasco at the Brooklyn museum, only 51 percent of New York voters viewed him favorably; by the end of December, 61 percent did), suggest a dangerous regression. Already, his tactics have been repeated. At the end of January, Governor Pataki was able to get an injunction against snow removal workers engaged in a "sick-out" on Long Island. Like the Giuliani order, Pataki's prescribed penalties ($1 million per day against the union, $1,000 per day against individuals) far more draconian than required by the Taylor Law.

The final outcome of the Giuliani-Clinton race remains anyone's guess. But the mayor has used the transport worker negotiations to rehabilitate himself and weaken his liberal-labor opposition. If Giuliani is elected to the Senate, it won't just be because he reduced crime, slimmed down the welfare rolls, or shuffled the homeless off the streets. It will also be because on a cold day in December he was the mayor who made the trains run on time. ยค