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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), ...

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