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March 18, 1981

Robert D. HELSBY, Joseph Crowley and Ida Klaus, as Members of the New York State Public Employment Relations Board, Defendants

The opinion of the court was delivered by: CANNELLA

After a trial on the merits of plaintiff's complaint, the Court finds for the defendants, and the complaint is dismissed.


Plaintiff, the Buffalo Teachers Federation ("BTF"), brings this action pursuant to 42 U.S.C. § 1983 seeking a judgment declaring the provisions of section 210.3 of the New York Civil Service Law unconstitutional as a violation of the equal protection clause of the fourteenth amendment and enjoining the Public Employment Relations Board ("PERB") from determining a charge filed against the BTF on October 29, 1976 and revoking the BTF's dues checkoff privileges. *fn1" Plaintiff contends that the statutory scheme for punishing illegal public employee strikes by revocation of an employee organization's dues checkoff privilege, on its face and/or as applied, violates the equal protection clause because the penalty is imposed more frequently upon employee organizations under PERB's jurisdiction, such as the BTF, than upon employee organizations under the jurisdiction of local public employment boards, commonly referred to as mini-PERBs, or New York City's Office of Collective Bargaining ("OCB"). Plaintiff claims that PERB must impose the penalty once it determines that a union-sanctioned strike has occurred which is far more severe treatment than that experienced by employee organizations under mini-PERB or OCB jurisdiction.

 The BTF is the bargaining representative for professional employees of the Board of Education of the City School District of the City of Buffalo (the "Board"). On September 7, 1976, the BTF commenced a fourteen-day strike, its second since the enactment of the Taylor Law in 1967. On October 29, 1976, PERB filed charges against the BTF seeking the revocation of its dues checkoff privilege, for alleged violation of the no-strike provision of the Taylor Law. On November 3, 1976, plaintiff filed its complaint along with a motion for a preliminary injunction, seeking to enjoin the PERB proceeding pending resolution of its constitutional challenge. Former Judge Frankel, to whom this action was originally assigned, subsequently granted plaintiff's motion for a preliminary injunction. See 435 F. Supp. 1098 (S.D.N.Y.1977). *fn2"

 The Taylor Law

 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. *fn3" 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. *fn4"

 The Act creates PERB to "assist in resolving disputes between public employees and public employers," id. § 209-a, including disputes concerning representation status of employee organizations. *fn5" PERB is also granted broad powers to enforce section 2093(d) 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.

 Id. *fn6" PERB will not penalize an employee organization if its members have staged a "wildcat" strike. 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. *fn7" See 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 *fn8" permits local governments, other than the State and a State public authority, to choose an alternative to PERB's state-wide enforcement of the Act. When authorized by local statute or ordinance, public employers *fn9" may create their own administrative boards to enforce the Taylor Law in their jurisdiction. These mini-PERBs *fn10" 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 Department of Civil Service Rules and Regulations, Part 203 Procedures For the Approval or Review of Local Government Procedures Under Section 212 of the Act, N.Y.Civ.Serv.Law (McKinney 1973) (hereinafter "PERB Rules").

 Any mini-PERB having jurisdiction over a public employer may impose the dues checkoff sanction administratively under its substantially equivalent procedures. *fn11" 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 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 and OCB Governments), the court may, as an additional punishment for such contempt, order forfeiture of the rights (to membership dues and agency shop fees deductions)....

 Accordingly, a public employer that initiates a contempt proceeding in a mini-PERB jurisdiction may request the court to impose the dues checkoff sanction in lieu of initiating administrative proceedings. The Court may impose that penalty in addition to levying a fine. *fn12" This procedure is different from that available to employers under PERB's jurisdiction since the dues checkoff forfeiture can only be imposed administratively by PERB on unions found to have violated the Act, and is not available in the context of contempt proceedings.

 The authority of mini-PERBs to impose the dues checkoff sanction administratively may be curtailed when the employer has already instituted contempt proceedings. In that situation, PERB, in considering the substantial equivalence of local procedures, encourages mini-PERBs to provide in their local regulations that administrative procedures to impose the sanction will not be available when contempt proceedings have been terminated on the merits. See PERB, A Guide to the Preparation of Local Enactments Pursuant to Section 212 of the Civil Service Law 11-12 (rev. 1968) (the "Guide "). *fn13" The purpose of this restriction on administrative penalties is to prevent the imposition of double penalties.

 Special provisions are made for New York City under the Taylor Law. Section 212.2 provides that the procedures adopted by the City of New York need not be approved by PERB before becoming effective, although they must be substantially equivalent to PERB's procedures. PERB may, however, bring a declaratory judgment action in New York County to declare New York City's procedures not substantially equivalent to PERB's procedures. To date, PERB has never instituted such an action. See Pre-Trial Order, Exhibits A-1, A-2. In 1967, pursuant to section 212.2, New York City enacted its own public employment relations law, the New York City Collective Bargaining Law ("NYCCBL"). See New York City Charter and Administrative Code, Ch. 54, § 1170 et seq. (1967). The NYCCBL established an Office of Collective Bargaining ("OCB") and a Board of Collective Bargaining ("BCB") possessing many of the same powers as PERB. The BCB consists of seven members: two "city" members appointed by the mayor, two "labor" members appointed by the municipal labor committee and three "impartial members" elected by the city and labor members. See id. § 1171. Due primarily to the tripartite structure of the BCB, *fn14" New York City declined to adopt an administrative dues checkoff forfeiture procedure similar to the one contained in section 210.3 of the Act. Consequently, the dues checkoff forfeiture may not be imposed administratively, but only by a court as a penalty for criminal contempt under the provisions of section 751 of the New York Judiciary Law.

 The NYCCBL, as enacted in 1967, provided for the mandatory coverage of all mayoral agencies of the City of New York, although non-mayoral agencies could come under its jurisdiction at the option of the agency employer and with the approval of the mayor. Those non-mayoral agencies not opting for OCB coverage automatically remained under PERB's jurisdiction.

 In their Pre-Trial Order (filed March 28, 1980), the parties agree that from September 1, 1967 through December 31, 1978, there have been twelve work stoppages in mini-PERB jurisdictions. Id., Exhibit A, par. 11. *fn15" In none of these cases are the parties aware that the public employer sought an injunction or instituted contempt proceedings in state court. Consequently, the parties agree that no court has ever imposed the dues forfeiture in the context of a section 751 mini-PERB contempt proceeding. Tr. at 80. In two of these cases, the mini-PERBs involved imposed the dues forfeiture administratively, and in a third, the mini-PERB imposed the forfeiture which was later remitted upon the payment of a $ 60,000 fine to the county. *fn16" In addition, the parties submitted evidence that in 1979 two work stoppages occurred in mini-PERB jurisdictions a Nassau County strike involving employees of the Department of Public Works, which is currently pending before the Nassau County mini-PERB in which the hearing officer recommended the imposition of the forfeiture for two pay periods (one month), see Plaintiff's Exhibit 9, and a work stoppage by Westchester County employees in which the mini-PERB found there was no strike. Tr. at 35.

 From 1967 to 1978, there have been eighteen work stoppages affecting employers under OCB's jurisdiction. See Pre-Trial Order, Exhibit A, par. 12. In only one case, however, did a court impose the dues checkoff forfeiture, but the penalty was subsequently remitted. The City of New York v. DeLury, Index No. 40251/1968 (Sup.Ct., N.Y. County filed June 4, 1970). In contrast, during the same period, there were approximately 200 work stoppages under PERB's jurisdiction resulting in 146 charges filed by PERB and 28 charges filed by public employers. Tr. at 66. PERB has imposed the penalty for some period of time in 141 of these cases, or 96.4% of the time. Pre-Trial Order, par. 10.

 Plaintiff contends that this statutory scheme is unconstitutional on its face as a denial of equal protection since it creates classifications of public employee organizations those under the jurisdiction of PERB, mini-PERBs and OCB which are not rationally related to a legitimate state interest. Moreover, based on the allegedly disparate enforcement statistics, the plaintiff contends that the statutory scheme as applied violates the equal protection clause. Plaintiff argues that section 210.3(f) creates a mandatory standard by providing that PERB "shall" impose the forfeiture when it finds a union-sanctioned strike, although section 751.2 of the Judiciary Law creates a permissive standard by providing that the courts "may" impose the forfeiture upon a union under the jurisdiction of a mini-PERB or OCB as a penalty for contempt of an order enjoining a public employee strike. Plaintiff relies on PERB's statement that the penalties have not been administered in an "evenhanded" manner in the three jurisdictions and its assessment that such treatment is "inequitable." See In re United Federation of Teachers, Local 2, 9 PERB par. 3071, at 3129 n.2 (1976). *fn17" In short, plaintiff argues that the different treatment experienced by unions under PERB's jurisdiction when compared to those under a mini-PERB's or OCB's, depends upon the fortuitous circumstance of geography or the whim of a public employer.


 Plaintiff does not contend that the statutory scheme for enforcement of the forfeiture, either on its face or as applied, interferes with the exercise of a fundamental right or operates to the particular disadvantage of a suspect classification, which would require strict judicial scrutiny. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973). Rather, since this challenge to the dues checkoff forfeiture procedures involves issues within the economic sphere, the appropriate standard of review is to determine whether the challenged statutory scheme is " "rationally related to furthering a legitimate state interest.' " Vance v. Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 943, 59 L. Ed. 2d 171 (1979) (quoting Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 2566, 49 L. Ed. 2d 520 (1976)); Civil Service Employees Association, Inc. v. Helsby, 439 F. Supp. 1272, 1277 (S.D.N.Y.1977) ("CSEA "); Buffalo Teachers Federation, Inc. v. Helsby, 435 F. Supp. 1098, 1103-04 (S.D.N.Y.1977) ("Buffalo Teachers "). If so, the statutory scheme is constitutional, and plaintiff's complaint must be dismissed.

 In applying this standard, the Court recognizes that the equal protection clause of the Constitution does not deprive the states of all power of classification, see Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271, 99 S. Ct. 2282, 2292, 60 L. Ed. 2d 870 (1979), and that the role of the Court is limited. "The primary responsibility for determining the manner in which a particular law will affect society is upon the legislative branch and not the judiciary." Finkel v. New York City Board of Education, 474 F. Supp. 468, 471 (E.D.N.Y.1979), aff'd mem.; 622 F.2d 573 (2d Cir. 1980). The Supreme Court has articulated the judiciary's role in this regard:


The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Thus, we will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational.

 Vance v. Bradley, supra, 440 U.S. at 97, 99 S. Ct. at 943 (footnote omitted). *fn18" Therefore, plaintiff must sustain a heavy burden of proof if it is to succeed in this action. Id. at 111, 99 S. Ct. at 950; The National Organization for the Reform of Marijuana Laws v. Bell, 488 F. Supp. 123, 137 (D.D.C.1980).

 Plaintiff urges the Court to adopt former Judge Frankel's conclusion that the statutory scheme and its application is not rationally related to a legitimate state interest. Although Judge Frankel acknowledged that the State Legislature enacted the section 212 option for creating local public employment boards based upon its recognition that " "local political units are often in the best position to understand and deal with the problems affecting their employees' and should be given "flexibility in devising local solutions to matters of employee representation and collective negotiations,' " Buffalo Teachers, supra, 435 F. Supp. at 1104 (quoting N.Y. State Legislative Annual 273-74 (1967) (memorandum of Governor Rockefeller issued upon approval of the legislation), he concluded that this rationale did not justify the application of a mandatory standard for imposing the penalty under PERB's jurisdiction and a permissive standard under the jurisdiction of mini-PERBs and OCB. Judge Frankel stated that the


only difference between the unions subject to PERB's jurisdiction and those within the province of the courts is the accident of whether they operate under a governmental unit which has opted for local control under § 212 of the Act. The difference is utterly fortuitous, and cannot justify in any remotely rational sense the result that the unions finding themselves willy nilly under PERB's control suffer more severe punishment for engaging in prohibited work stoppages than do those unions under local control.

 Id. at 1105.

 The Court cannot agree that the classification challenged by plaintiff lacks a rational basis. When enacting the Taylor Law, the State Legislature was faced with a choice of creating either a uniform statewide system or a decentralized scheme to regulate public employee relations. Tr. at 132-34. Recognizing that labor relations in New York City had developed more quickly and in a more complex pattern than throughout the remainder of the State, and intending to permit such individualized development elsewhere, the Legislature created the present system in which a public employer through local legislation can create its own "substantially equivalent" procedures to enforce the Taylor Law, including its dues checkoff forfeiture penalty.

 Having compared mini-PERB and PERB procedures, the Court cannot accept the argument urged by plaintiff here and accepted by Judge Frankel, that mini-PERBs apply a different standard in imposing the penalty since a public employer in a mini-PERB jurisdiction has the option of seeking the penalty in the context of contempt proceedings pursuant to N.Y. Jud. Law § 751.2. First, the mini-PERBs must have administrative procedures that are "substantially equivalent" to PERB's procedures, and must utilize such procedures absent a court judgment on the merits in a contempt proceeding. Second, the Court does not agree that the mere use of the word "shall" in section 210.3(f) of the Act and "may" in section 751.2 of the Judiciary Law creates different standards for the imposition of the penalty. The criteria for imposing the penalty in those sections are identical for both PERB and the courts. Rather, this difference in statutory language, as Jerome Lefkowitz, the Deputy Chairman of PERB testified, was created in an attempt to retain consistency in the style of the Judiciary Law, Tr. at 138, and was intended to give the courts the same power to impose the penalty as PERB possessed. Id. Not surprisingly, this decentralized system has not produced uniform enforcement statistics. But even if the statistical evidence produced by plaintiff indicates that mini-PERBs and the courts have applied the same criteria for imposing the penalty in a somewhat different fashion than PERB, the difference in application is clearly rationally related to the legitimate state interest in fostering local control of public labor relations. Moreover, there is no evidence that the enforcement experience of the three jurisdictions results from selective enforcement of the penalty.

 The Court agrees with Judge Goettel that


the difference in treatment, if it can be viewed as one, is not an accident of geography or the result of legislative caprice. The differing scheme arises only if a local government decides to establish local machinery for the supervision of public labor disputes. This exercise of local initiative is encouraged by the Taylor Law in an effort to promote more sensitive governmental responses to the particular problems of local public employees. Giving the mini-PERBs the limited option to pursue all the available remedies against a union in violation of the Act through a contempt action is one way in which the Act attempts to allow local administrators, who no doubt do not enjoy the resources of the PERB, an extra degree of flexibility. Certainly, this option cannot be viewed as "wholly irrelevant to the achievement of the State's objective" of increased local discretion. McGowan v. Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393 (1961).

 CSEA, supra, 439 F. Supp. at 1278. *fn19"

 With respect to the procedures used by OCB, in which the penalty can be imposed only in the context of contempt proceedings, the Court again agrees with Judge Goettel that this classification is rationally related to furthering a legitimate state interest in "allowing local governments to develop their own machinery to supervise their own public employees." Id. at 1280. The State Legislature recognized that the complex historical development of New York City's public employment relations required flexibility to achieve the Taylor Law's overall goal of fostering amicable public labor relations, *fn20" and that uniform statewide procedures might not advance this goal. Moreover, although mini-PERBs are also authorized to create tripartite boards, to date the BCB is the only tripartite board in existence, and its composition justifies the conclusion that the BCB should not be required to have the same administrative enforcement procedures as PERB and mini-PERBs. Tr. at 143.

 Of course, whether the procedures of the mini-PERBs and OCB and their application are "substantially equivalent" to PERB's is a question of state law that this Court cannot answer. As in Shanker v. Helsby, -- 515- F. Supp. -- 871 -- , (S.D.N.Y. 1981), also decided today, plaintiff's arguments plainly question the wisdom of the present statutory scheme and whether it truly accomplishes its goal of ensuring amicable public labor relations. As has often been recognized, however, legislative classifications that have a rational basis but which imperfectly effectuate the State's goals or in practice result in some inequality are not unconstitutional. While plaintiff would prefer that the dues forfeiture be enforced uniformly throughout the State and City of New York, persuasive arguments based upon interests of local control could be voiced in opposition. In the end, the choice must be made by the State Legislature which is no doubt keenly aware of the criticism of the current statutory scheme. See Vance v. Bradley, supra, 440 U.S. at 108, 99 S. Ct. at 948; Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 1161, 25 L. Ed. 2d 491 (1970); Finkel v. New York City Board of Education, supra, 474 F. Supp. at 471-72. Since the Court concludes that the statutory scheme for the imposition of the dues checkoff forfeiture, on its face and as applied, is rationally related to furthering the legitimate state interest in harmonious public labor relations and their local control, the statutory scheme does not violate the BTF's right to equal protection of law.


 In accordance with the foregoing, since plaintiff has not proved the claim contained in its complaint, the complaint is dismissed. The preliminary injunction previously issued in this action is hereby vacated.

 These are the Court's findings of fact and conclusions of law. Fed.R.Civ.P. 52(a).

 Submit Judgment on Notice.


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