The opinion of the court was delivered by: CANNELLA
After a trial on the merits of plaintiffs' complaint, the Court finds for the defendants, and the complaint is dismissed.
Plaintiffs, the United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO ("UFT"), and its President, Albert Shanker,
bring this action pursuant to 42 U.S.C. § 1983 seeking to enjoin the enforcement of the October 8, 1976 order of the Public Employment Relations Board ("PERB") mandating the forfeiture of the UFT's dues checkoff privilege.
Plaintiffs challenge as a denial of equal protection under the fourteenth amendment the manner in which the dues checkoff forfeiture is administered under the different jurisdictions created by New York's Taylor Law.
The UFT is subject to the jurisdiction of PERB which plaintiffs contend must impose the dues checkoff forfeiture if it determines after administrative proceedings that a union-sanctioned strike has occurred.
Plaintiffs argue that this treatment is far more severe than that experienced by unions under the jurisdiction of New York City's Office of Collective Bargaining ("OCB"), where the dues checkoff forfeiture is available only in the context of a contempt proceeding instituted by the public employer under section 751 of the New York Judiciary Law. In support of their contention that the statutory scheme as applied discriminates against the UFT, plaintiffs argue that the UFT is the only New York City-based union to have its dues checkoff privilege suspended three times since 1967. No municipal union under the jurisdiction of OCB has ever had the privilege suspended even though eighteen work stoppages have occurred within OCB's jurisdiction, six of which have led to contempt proceedings.
The following series of events precipitated this lawsuit. During New York City's fiscal crisis, negotiations between the UFT and the Board broke down, and the UFT went on strike from September 9 to September 16, 1975, which was the third strike staged by the UFT since 1967. On October 10, 1975, the New York City Corporation Counsel filed charges with PERB alleging that the UFT had violated the no-strike provision of the Taylor Law. On October 8, 1976, PERB found that the UFT had violated the Taylor Law and ordered the forfeiture of the UFT's dues checkoff privilege for an indefinite period, subject to a two-step procedure through which the UFT could apply for conditional restoration after fourteen months and full restoration after two years. See Complaint, Exhibit A. Shortly thereafter, plaintiffs commenced the present action, which was originally assigned to former Judge Frankel. The parties have voluntarily agreed to postpone enforcement of the forfeiture until plaintiffs' constitutional challenge is resolved.
The Public Employees' Fair Employment Act, commonly referred to as the Taylor Law, N.Y.Civ.Serv.Law § 200 et seq. (McKinney 1973) (the "Act"), was enacted in 1967 to foster the public policy of harmonious labor relations between governments and their employees. See id. § 200.
To promote this public policy, public employees were accorded certain rights, including the rights to organize, to have their chosen representative recognized, to engage in collective negotiation with their employer and to utilize effective grievance procedures. Id. §§ 202, 203, 204. Section 208.1(b) grants recognized or certified employee organizations the right to have membership dues regularly deducted from their members' paychecks, and section 208.3 grants such organizations the right to have an amount equivalent to the organization's dues deducted from non-members' salaries.
The Act creates PERB to "assist in resolving disputes between public employees and public employers," id. § 200(d), including disputes concerning representation status of employee organizations. PERB is also granted broad powers to enforce section 209-a concerning improper employer and employee organization practices; to make studies; to obtain and to supply information; to hold hearings and to adopt rules and regulations. See id. § 205. PERB has statewide jurisdiction to impose penalties for violations of the Act's provisions. Section 210.1, the heart of the Act's regulatory scheme, prohibits strikes by public employees throughout the State. When it appears that the no-strike provision has been or will be violated, the Act provides certain remedies. The chief legal officer of the government involved in a labor dispute shall apply to the New York Supreme Court for an order enjoining an impending strike by public employees. Id. § 211. If the employees or their organization do not comply with the injunction, the chief legal officer "shall forthwith" institute criminal contempt proceedings in the Supreme Court pursuant to New York Judiciary Law § 750 (McKinney 1975). The Supreme Court, in its discretion, may fix a fine for each day the contempt persists. N.Y.Jud.Law § 751.2(a) (McKinney Supp. 1980-1981).
In addition to the foregoing procedures, section 210.3 requires the chief legal officer, or PERB on its own motion, to institute administrative proceedings against the employee organization before PERB to determine whether the employee organization has violated section 210.1. In determining whether the employee organization violated section 210.1 by instigating or condoning the strike, PERB considers whether the employee organization called the strike or tried to prevent it and whether it made or was making a good faith effort to terminate the strike. N.Y.Civ.Serv.Law § 210.3(e) (McKinney 1973).
Once PERB determines that an employee organization has violated the no-strike provision of the Act, PERB "shall order forfeiture" of the membership dues and agency shop fees deductions for such period of time as PERB, in its discretion, deems appropriate. Id. § 210.3(f) (McKinney Supp. 1980-1981). In determining the duration of the forfeiture, PERB
shall consider all the relevant facts and circumstances, including but not limited to: (i) the extent of any wilful defiance of subdivision one of this section (ii) the impact of the strike on the public health, safety, and welfare of the community and (iii) the financial resources of the employee organization; and the board may consider (i) the refusal of the employee organization or the appropriate public employer or the representative thereof, to submit to the mediation and fact-finding procedures provided in section two hundred nine and (ii) whether, if so alleged by the employee organization, the appropriate public employer or its representatives engaged in such acts of extreme provocation as to detract from the responsibility of the employee organization for the strike. In determining the financial resources of the employee organization, the board shall consider both the income and the assets of such employee organization. In the event membership dues are collected by the public employer ..., the books and records of such public employer shall be prima facie evidence of the amount so collected.
PERB will not penalize an employee organization if its members have staged "wildcat" strikes. Moreover, although merely considered a factor in determining the duration of the penalty in section 210.3(f), PERB may not impose any forfeiture upon an employee organization when extreme employer provocation caused a union-sanctioned strike. See Plaintiffs' Exhibit 4, Deposition of Ida Klaus at 6 (filed May 21, 1980); Plaintiffs' Exhibit 3, Report of the Joint Legislative Committee on the Public Employees Fair Employment Act, N.Y. Legislative Document No. 25, at 20 (1972) (hereinafter "1972 Report"). Absent some form of extreme provocation, however, PERB has interpreted the Act as requiring it to impose the forfeiture penalty, although PERB retains broad discretion in determining the duration of the penalty.
Section 212 of the Act
permits local governments other than the State and a State public authority, to choose an alternative to PERB's statewide enforcement of the Act. When authorized by local statute or ordinance, public employers
may create their own administrative boards to enforce the Taylor Law in their jurisdiction. The local boards, commonly referred to as "mini-PERBs," possess many of the same powers as PERB since section 212 requires mini-PERBs to adopt procedures "substantially equivalent" to those used by PERB. Moreover, this section permits the creation of a mini-PERB only after PERB has found that the proposed regulations of the local government comply with the substantial equivalence standard. See Teachers Federation, Inc. v. Helsby, 515 F. Supp. 215, (S.D.N.Y. 1981) (hereinafter "Buffalo Teachers Opinion").
Any mini-PERB having jurisdiction over a public employer may impose the dues checkoff sanction administratively under its substantially equivalent procedures.
In addition, a court may impose the same sanction if it finds the union in contempt under section 751.2(a) of the New York Judiciary Law (McKinney Supp. 1980-1981), which provides in pertinent 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 subdivision one of section two hundred ten of the civil service law, the punishment for each day that such contempt persists may be 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 and OCB Governments), the ...