The opinion of the court was delivered by: GOETTEL
Plaintiff is a statewide association representing public employees in the State of New York. It brings this motion for a preliminary injunction on behalf of four local chapters of the state association under 42 U.S.C. § 1983. Defendants are members of the New York Public Employment Relations Board ("PERB"), which is charged with enforcing New York's Taylor Law prohibiting strikes by public employees and providing sanctions for violations of its provisions. Plaintiffs assert that one of the statutory sanctions, the suspension of a union's privilege to have dues payments from members "checked off" from their paychecks, is unconstitutional because its application discriminates between unions under the jurisdiction of the state PERB and unions operating under local government jurisdictions.
Three of the four local chapters who are plaintiffs are operating under privilege suspensions imposed by the PERB. The fourth claims that a suspension of its dues check-off privilege is imminent.
Plaintiffs' challenge is supported primarily by a recent decision by Judge Frankel of this court, Buffalo Teachers Federation, Inc. v. Helsby, 435 F. Supp. 1098 (S.D.N.Y. 1977), which held this particular aspect of the Taylor Law to be a violation of the Equal Protection Clause. Plaintiffs informally requested defendants to remove their suspensions until decision of the pending appeal of Judge Frankel's ruling, but defendants refused. Defendants now argue that the full factual picture was not adequately presented to the court in Buffalo Teachers, and that, as a result, Judge Frankel's decision was based on incorrect factual findings. For the reasons stated below, this Court agrees that defendants' presentation in the prior case was strikingly deficient, and, indeed, the New York PERB's understanding of the statutory scheme at issue here is questionable. Based on a more complete presentation of the facts than afforded Judge Frankel, this Court finds no likelihood that plaintiffs will prove a constitutional violation and denies the instant motion for a preliminary injunction.
The Taylor Law, Article 14 of the New York Civil Service Law, §§ 200-14 (McKinney 1973), governs public employees in the state. The statute recognizes the right of public employees to organize and to bargain collectively, and it creates the PERB to "assist in resolving disputes between public employees and public employers." Id. § 200(d); see id. § 205. The PERB is given the power to resolve disputes concerning the representation status of employee organizations, to conduct studies of public employees' problems, to establish panels of mediators to assist in dispute resolution, and to supervise generally the relations between the employees and their governmental employers. Id. § 205. Section 208.1(b) of the Act grants to certified or recognized employee organizations the right to have membership dues regularly deducted from their members' paychecks.
The regulatory core of the Act is Section 210.1, which prohibits strikes by public employees. Section 211 gives the chief officer of the specific governmental employer involved the power to apply to the Supreme Court for injunctive relief to prevent any strike or work stoppage in violation of Section 210.1. Section 211 requires further application to the state court for an order of criminal contempt under the Judiciary Law if the injunction is disobeyed. In Section 210.3(f), the Act also gives the PERB the power to suspend the dues check-off privileges of any employee organization which it determines, after administrative hearing, to have violated Section 210.1.
Section 212 allows for an alternative to this statewide scheme of administrative supervision and enforcement. Section 212.1 permits local governmental employers to create their own administrative boards to implement the Taylor Law in their jurisdictions. These local boards are known colloquially as "mini-PERBs," and thirteen local jurisdictions have taken advantage of their power to establish such local administrative machinery.
The mini-PERBs are patterned after the state PERB's structure, as Section 212 requires any local government creating a mini-PERB to adopt procedures and provisions "substantially equivalent" to those used on the state level. The section therefore permits the creation of a mini-PERB only after the state PERB has made a finding that the proposed provisions of the locality comport with this substantial equivalency standard.
Section 212.2 provides specifically for New York City and, although it too requires substantial equivalency, it does not require submission of the city's local provisions for prior PERB approval. It does permit the New York City provisions to be invalidated, however, by the PERB suing for a declaratory judgment finding that city procedures are not substantially equivalent to those in the state statute.
Plaintiffs' constitutional challenge arises out of the mechanisms by which the suspension of check-off privileges is enforced. For employee organizations under the jurisdiction of the PERB, the suspension is imposed after an administrative hearing conducted by the PERB. For organizations in those jurisdictions that have established mini-PERBS, the sanction can be imposed by the mini-PERB, through a similar administrative procedure, or by a court which finds the organization in contempt under Judiciary Law §§ 750-52 (McKinney 1975). Section 751.2 provides in part:
"Where an employee organization . . . wilfully disobeys a lawful mandate of a court of record, or wilfully offers resistance to such lawful mandate, in a case involving or growing out of a strike in violation of . . . the civil service law, the punishment for each day that such contempt persists may be by a fine fixed in the discretion of the court. In the case of a government exempt from certain provisions of article fourteen of the civil service law, pursuant to section two hundred twelve of such law [mini-PERB governments,] 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 dues check-off privileges] . . .."
Thus, if a contempt proceeding is initiated by a particular local governmental employer, the employer may request the court to impose a check-off suspension, and the court has the discretion to do so. This procedure is different from that followed by the PERB, which must proceed administratively to impose the penalty on an employee organization found to have violated the Act.
The record before Judge Frankel in the Buffalo Teachers case indicated that this contempt mechanism was the only way in which an organization under the jurisdiction of a mini-PERB could be punished with a dues check-off suspension.
Indeed, the state PERB itself, in a footnote to a recent decision, stated that such organizations
"may have their dues deduction privileges suspended only by a court, and then only as punishment for contempt of the court's order. Eighteen strikes by such employee organizations have occurred since the advent of the Taylor ...