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July 29, 1977


The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge:

Plaintiff, the Buffalo Teachers Federation, sues under 42 U.S.C. § 1983 for declaratory and injunctive relief against the three members of the New York State Public Employment Relations Board ("PERB"). The gravamen of plaintiff's complaint is that the State's Taylor Law, which prohibits public employees from striking and mandates sanctions for violations of this prohibition, unconstitutionally discriminates with regard to the revocation of dues check-off privileges as a sanction for a prohibited strike between public employee unions operating in local jurisdictions which have adopted their own labor regulations and those unions which operate in localities not having such regulations. The plaintiff is currently involved in a proceeding before PERB in which the challenged dues revocation procedure seems destined to be invoked. *fn1" The court is asked to enjoin the PERB proceeding pending resolution of plaintiff's constitutional challenge. Defendants resist the motion for preliminary relief and move for dismissal of the complaint. *fn2" The court concludes that plaintiff's motion should be granted.


 The Public Employees' Fair Employment Act (the Taylor Law), N.Y. Civ. Serv. Law § 200 et seq., was enacted in 1967. It gives public employees the right to organize and to negotiate terms and conditions of employment with the State, local governments, and other political subdivisions. Section 208.1(b) of the Act entitles duly recognized or certified employee organizations to have membership dues regularly deducted from member's paychecks. PERB was established to handle various administrative responsibilities involved in implementing the statute and to resolve disputes among the various parties governed by it. The Act also provides, in § 212, that any local government entity which adopts provisions and procedures governing labor relations with its employees "substantially equivalent" to those contained in the statute shall be exempted from a number of the general requirements and provisions. In these localities, "mini-PERBS," as they are called, have been established to implement the Act in much the same fashion as does the State PERB with regard to the entities which remain subject to its jurisdiction.

 A central feature of the Act is its prohibition in § 210.1 against strikes by public employees or public employee organizations. Governmental units confronted with an actual or potential work stoppage in violation of this provision are required by § 211 to apply to the Supreme Court for injunctive relief. In the event that such an injunction is disobeyed, the statute mandates further application to the Supreme Court for an order of criminal contempt under §§ 750-751 of the Judiciary Law.

 In addition to the contempt sanction, the Act contemplates specific penalties against striking employees and employee organizations. Employee organizations which have violated the no-strike requirement are disciplined in one of two ways, depending on whether or not they operate within the jurisdiction of a local governmental unit which has assumed responsibility for labor relations with its employees pursuant to § 212 of the Act. Employee organizations not functioning in such governmental units are subject to the jurisdiction of the State PERB. That Board is required by § 210.3(f) of the Act to withdraw the dues check-off privilege of any organization which it finds, after a hearing, to have engaged in a work stoppage in contravention of the statutory ban. The Board's action is independent of the judicial enforcement mechanism provided in § 211.

 The gist of plaintiff's suit is the contrasting procedure applicable to a striking employee organization not under the State PERB's jurisdiction. The authority to withdraw the dues check-off privilege from such an organization is vested in the first instance in the State courts. Section 751.2 of the Judiciary Law governing criminal contempt provides in relevant part:

 "In the case of a government exempt from certain provisions of article 14 of the civil service law, pursuant to section two hundred twelve of such law, the court may, as an additional punishment for such contempt, order forfeiture of the rights granted pursuant to the provisions of paragraph (b) of subdivision one of section two hundred eight of such law [the right to membership dues check-off]."

 Thus, if a criminal contempt proceeding is initiated, the court "may," but unlike the State PERB is not required to, impose a dues check-off forfeiture. In the event that no contempt proceeding is brought, the local mini-PERB is charged with responsibility for disciplining the offending employee organization in a fashion "substantially equivalent" to that provided in § 210.3 of the Act. See Rules and Regulations of the Department of Civil Service, Chap. VII, § 203.7.

 The plaintiff challenges this dual mechanism for withdrawing dues check-off privileges on the ground that it discriminates arbitrarily and unconstitutionally against those organizations which are under the jurisdiction of the State PERB.


 As their principal contention, defendants say the court should abstain from adjudicating plaintiff's constitutional claims on the basis of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), and its now rather numerous progeny, e.g., Gibson v. Berryhill, 411 U.S. 564, 36 L. Ed. 2d 488, 93 S. Ct. 1689 (1973); Huffman v. Pursue, Ltd., 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975); Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376, 45 LW 4269 (March 22, 1977); Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486, 45 LW 4535 (May 31, 1977). Defendants concede that the Supreme Court has not directly held Younger applicable to administrative proceedings, but cf. Geiger v. Jenkins, 401 U.S. 985, 28 L. Ed. 2d 525, 91 S. Ct. 1236 (1971); Gibson v. Berryhill, supra, but they rely on several recent Second Circuit cases which seem to have made this further extension of the doctrine. See McCune v. Frank, 521 F.2d 1152, 1158 (2d Cir. 1975) (police disciplinary proceedings); Anonymous v. Association of the Bar, 515 F.2d 427 (2d Cir.), cert. denied, 423 U.S. 863, 46 L. Ed. 2d 92, 96 S. Ct. 122 (1975) (bar disciplinary proceedings). Cf. Friedman v. Beame, et al., 558 F.2d 1107 (2d Cir. 1977). Accepting this scope for the Younger principle, the court nevertheless concludes that abstention is neither required nor appropriate in the context of this case.

 An essential predicate for Younger absention is the availability of a competent state tribunal to decide the federal issues involved. See, e.g., Younger v. Harris, supra, 401 U.S. at 49; Gibson v. Berryhill, supra, 411 U.S. at 577; Huffman v. Pursue, Ltd., supra 420 U.S. at 608-09; Judice v. Vail, supra, 45 LW at 4270, 4272; Trainor v. Hernandez, supra, 45 LW at 4536-38. The core notion of comity, see, e.g., Juidice v. Vail, supra, 45 LW at 4271, is only implicated in the situation where the constitutional claim raised in federal court is one which could be fully and fairly considered in the pending state proceeding. Federal interference in such a situation may result "in duplicative legal proceedings and can readily be interpreted 'as reflecting negatively upon the state courts' ability to enforce constitutional principles.'" Huffman v. Pursue, Ltd., supra, 420 U.S. at 604, quoting Steffel v. Thompson, 415 U.S. 452, 462, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974).In cases where the state tribunal is for some reason incompetent or unable to resolve the federal claims presented, the Supreme Court has found abstention not to be required. See, e.g., Gibson v. Berryhill, supra; Gerstein v. Pugh, 420 U.S. 103, 108, 43 L. Ed. 2d 54, 95 S. Ct. 854 n.9 (1975). Cf. Trainor v. Hernandez, supra, 45 LW at 4538 n. 10.

 In Gibson v. Berryhill, supra, a case in material respects analogous to the one at bar, a charge had been filed with the Alabama Board of Optometry alleging that several optometrists in the employ of Lee Optical Company were violating the ethics of their profession. The Board, composed entirely of optometrists in private practice, was urged to revoke the licenses of the accused individuals. 411 U.S. at 567-68. Prior to the commencement of a hearing before the Board, these optometrists brought suit in federal court under § 1983 seeking to enjoin the scheduled state proceedings on the ground that the Optometry Board was "biased and could not provide the plaintiffs with a fair and impartial hearing in conformity with due process of law." Id. at 569-70. A three-judge court, rejecting the suggestion that Younger required deference to the pending state proceeding, granted plaintiffs the relief requested. Berryhill v. Gibson, 331 F. Supp. 122 (M.D. Ala. N.D. 1971). The Supreme Court accepted the lower court's decision on the abstention question, noting specifically that Younger abstention was inappropriate because the State Board of Optometry was "incompetent by reason of bias to adjudicate the issues pending before it." 411 U.S. at 577. The Court went on to note that the availability of ...

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