Published: November 13, 2012
Publication: The Chief
By Sarah Dorsey
Court of Appeals Judge Theodore Jones Jr., who imposed a $2.5-million fine on Transport Workers Union Local 100 after its 2005 strike and briefly jailed its then-president, Roger Toussaint, died of an apparent heart attack at his home in Rockland County Nov. 5. He was 68 years old.
Friends described Judge Jones as a sweet, kind man who listened carefully and acted with temperance and fairness. He was a former Legal Aid attorney, served as chair of the Court of Appeals’ diversity committee, and co-chaired a task force on reducing wrongful convictions. He spent his last days meeting with high school and community college students in an effort to promote diversity in the courtroom, and reaching out to veterans who had completed a Rochester court drug treatment program. He leaves behind a wife of more than 40 years, Joan Sarah Hogans, and two sons, Theodore Jones III, and Wesley Jones.
Union, Worker Fines, Dues Penalty
Public-sector workers know him best, however, for his application of the Taylor Law in the 2005 transit strike, which was called after a protracted contract dispute. On Dec. 20, 2005, the strike’s first day, the Judge found the union to be in contempt of two court injunctions against striking, and imposed a fine of $1 million per day, as the law provides. He also fined the employees two days’ pay for each of the 2.5 days they were out. He later suspended the union’s dues check-off rights.
Mr. Jones provoked “angry gasps,” according to the New York Times, when the following April he imposed a 10-day jail sentence on Mr. Toussaint, of which he ended up serving only four days. The union leader was also fined $1,000, and two of his officers were fined $500 each.
In court, the Judge acknowledged the strain the fines would put on Local 100, saying, “the potential danger to the continued existence of the union rests fully with the adjudication of [these] fines.”
Local 100 President John Samuelsen said he didn’t want to speak ill of a man who had just passed away, but that “it’s clear that the decision of the court was designed to cripple Local 100 going forward and we’re still feeling the effects of it today.”
‘Still Standing Strong’
“But Local 100 is not crippled and we’re still standing strong,” he added, while acknowledging that the union is still owed $7 or $8 million in dues from members because of the temporary loss of the automatic check-off.
But Arthur Schwartz, who was Mr. Toussaint’s attorney during the strike, said he thought that given the circumstances, the Judge was extremely fair.
“I think in the framework he had to function, which included angry public officials, he came down pretty leniently,” he said. “…I think we would have done worse with almost anybody else on that bench. Brooklyn Supreme Court is not a union-friendly setting.”
“Being in front of Judge Jones in the strike actually turned out to be a pleasurable experience,” he said. “Right from the beginning, he was bending over backwards not to be the nasty, vindictive, angry judge that [Corporation Counsel Michael] Cardozo, who kept meddling in the litigation, kept asking him to be.”
Ten days before the walkout, the Judge ruled that the union had a First Amendment right to vote whether to strike, Mr. Schwartz recalled, and he didn’t dismiss union requests out of hand, such as a petition to allow a jury trial for Mr. Toussaint, as many jurists would have done.
Spitzer Wanted Bigger Fines
“Jones was somewhat restrained by the requirements of the law,” Mr. Schwartz said, adding that the city and then-Attorney General Eliot Spitzer pushed hard for much-larger fines, arguing that the union owned a building and that $2.5 million would be just “a drop in the bucket” compared to its value. (Mr. Toussaint had actually agreed to sell the building for $60 million just before the walkout.)
Mr. Schwartz recalled that the Judge who presided over the 1980 transit strike case sat in the front row every day and frequently complained that Mr. Jones wasn’t harsh enough and that his fines were too low.
But it was a personal exchange that particularly stood out in the attorney’s mind.
‘He Wasn’t a Hanging Judge’
“The second day, [Mr. Cardozo] made some really inflammatory speech and [after he left] Jones called me up to the front and said, ‘Don’t worry about it; I don’t pay much attention to him.’ And, you know, chuckled. And we had a number of exchanges like that after we were off the record…where he basically let me know that he wasn’t a hanging judge.”
“So when I got a call from the committee that was reviewing nominees [for promotion to the Court of Appeals], I was very positive about my dealings with him.”
Mr. Cardozo, who called Judge Jones’s handling of the strike “outstanding,” said in response to Mr. Schwartz’s criticism of his own conduct, “It is unfortunate that the lawyer whose clients were found by Judge Jones to have violated the law and had huge fines imposed on them would make these bizarre and inappropriate comments in a piece meant to honor someone who contributed so much.”
The union ended up losing the dues check-off for 17 months, after Mr. Jones was promoted and another Judge was assigned the case. He rejected a pact between the MTA and the union allowing the automatic deductions to resume roughly five months after their suspension June 1, 2007, instead demanding the officers sign a pledge never to strike again. The union appealed, but it took 15 months to resolve the case.