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May 23, 1983


The opinion of the court was delivered by: SPRIZZO


The Detective Endowment Association, a labor organization which is the certified bargaining agent for all policy department detectives employed by the City of New York ("DEA"), and Dennis P. Brennan, its president, commenced this action against the City of New York (the "City"), Edward I. Koch, its mayor, the Office of Municipal Labor Relations *fn1" ("OMLR") and the Office of Collective Bargaining *fn2" ("OCB") seeking a declaratory judgment that § 1173-10.0(b) of the new York City Collective Bargaining Law, New York City Administrative Code ("CBL 1173"), is unconstitutional. The statute provides:

 No organization seeking or claiming to represent members of the police force of the policy department shall be certified if such organization (i) admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than members of the policy force of the police department, or (ii) advocates the right to strike.

 On May 27, 1981 the DEA's delegate body voted to affiliate with the International Longshoremen's Association, AFL-CIO ("ILA") which admits to membership employees other than members of the police force and which advocates the right of non-municipal employees to strike. Subsequently, plaintiff Brennan notified defendants of the DEA's intention to affiliate with the ILA. Defendants advised plaintiffs that, in their view, the proposed affiliation would violate the provision of CBL 1173, Statement of Stipulated Material Facts at para. 8, and that, if such affiliation were effected, the OMLR would take appropriate action to revoke the DEA's certification, id. at para. 9.

 Plaintiffs thereupon commenced the instant action for a judgment declaring that the statute is unconstitutional both on its face and as about to be applied to them in that it deprives them of freedom of association and equal protection of the laws in violation of the first and fourteenth amendments. Plaintiffs also seek to enjoin defendants from revoking the DEA's certification. The parties have cross-moved for summary judgment. *fn3"

 Plaintiffs contend, and defendants do not dispute, that the first amendment protects their right to join labor organizations. They argue that CBL 1173 impermissibly burdens that right by conditioning the benefit of certification upon their forbearing to affiliate with the ILA. In support of their argument plaintiffs rely on a long line of cases which illustate the well settled principle that a state may not constitutinally condition the grant of a privilege or benefit upon the relinquishment of a first amendment right. See, e.g., Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963).

 While plaintiffs concede that the statute's impact on their associational freedoms is indirect, Transcript of Oral Argument at 6 (hereinafter "Tr. "), they argue that any state statute which impinges upon first amendment rights, even indirectly, must be strictly scrutinized and must constitute the least restrictive means of promoting a compelling state interest. *fn4" Plaintiffs further argue that the governmental interest advanced in support of CBL 1173, to wit, maintaining the existence and appearance of impartiality, discipline and loyalty in the police force, see Affidavit of John Guido in Support of Cross-Motion for Summary Judgment by City Defendants; Affidavit of Arvid Anderson in Support of [Defendant OCB's] Cross-Motion for Summary Judgment ("Anderson Affidavit"); Tr. at 22-23, does not rise to the level of a compelling state interest and has been consistently rejected by courts as a sufficient basis for denying first amendment rights.

 Defendants contend that, since CBL 1173 neither prohibits nor precludes membership in or affiliation with any labor organization, it does not constitute an infringement on plaintiffs' associational freedoms, but rather merely a limitation upon their bargaining rights, which, as even plaintiffs concede, are not protected by the first amendment. Defendants conclude, therefore, that CBL 1173 need only be rationally related to a legitimate government interest.

 In International Brotherhood of Teamsters, Local 344 v. NLRB, 568 F.2d 12 (7th Cir. 1977) (hereinafter "Teamsters,"), the Seventh Circuit considered and rejected a first amendment argument virtually identical to that made here. *fn5" In upholding the constitutionality of § 9(b)(3) of the National Labor Relations Act, 29 U.S.C. § 159(b)(3) (" § 9(b)(3)"), which precludes certification of an organization which represents guards if that organization admits to membership or affiliates with an organization which represents non-guards, the Seventh Circuit observed that the statute does not restrict the guards' right to join the union, to associate with non-guards or to receive voluntary bargaining rights. Characterizing the degree of infringement of first amendment rights as "incidental and minimal" the Seventh Circuit held that, when balances against the public policy promoted by the statutes, i.e., to avoid conflicting loyalties in persons employed to protect an employer's property, the infringement was too insubstantial to render the statute unconstitutional.Teamsters, 568 F.2d at 20-21.

 CBL 1173, like § 9(b)(3), is narrowly drawn and does not directly interfere with the exercise of first amendment rights. It does not prohibit membership in any labor organization. See, e.g., Mescall v. Rochford, 101 L.R.R.M. 3136 (N.D. Ill. 1979), aff'd, 655 F.2d 111 (7th Cir. 1981); Police Officers' Guild v. Washington, 369 F. Supp. 543 (D.D.C. 1973); Melton, v. City of Atlanta, 324 F. Supp. 315 (N.D. Ga. 1971). Nor does it threaten the legal existence of the union or the jobs of its members if an affiliation with non-police union is effected. Indeed, it does not even restrict the DEA from receiving voluntary bargaining rights. On the contrary, like § 9(b)(3), it restricts only the benefit of certification. See also Rogoff v. Anderson, 34 A.D.2d 154, 310 N.Y.S.2d 174 (1st Dep't 1970), aff'd, 28 N.Y.2d 880, 322 N.Y.S.2d 718, 271 N.E.2d 553, appeal dismissed for failure to state a federal question, 404 U.S. 805, 92 S. Ct. 108, 30 L. Ed. 2d 37 (1971). Plaintiffs concede that they have no constitutional right to affiliate for the purpose of certification, *fn6" Plaintiffs' Reply Memorandum 2, and have cited no authority to support the proposition that they have a constitutional right to affiliate with the ILA and retain the DEA's certification. Since CBL 1173's impact upon speech or associational rights is at best indirect or insubstantial, the statute must be sustained unless plaintiffs have met their burden of demonstrating that it is arbitrary or irrational. See Kelley v. Johnson, 425 U.S. 238, 247, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976).

 While plaintiffs contend that CBL 1173 is not reasonably related to maintaining an impartial police force and the defendants' fears about prospective conflicts of interest are baseless, plaintiffs have failed to carry that burden.

 The City's interest in maintaining the existence and appearance of policy neutrality is fully as substantial as the interest advanced in support of § 9(b)(3). *fn7" Police occupy a key role in our society by virtue of their responsibility for law enforcement, see, e.g., Baker v. Cawley, 459 F. Supp. 1301 (S.D.N.Y. 1978), aff'd, 607 F.2d 994 (2d Cir. 1979), and their loyalties are clearly as important, if not more important, to the City than the loyalties of guards to their employers. This Court cannot, therefore, conclude that the City may not properly recognize and prevent the divided loyalties that could develop if police officers were called upon to police labor disputes involving labor groups with which they were affiliated.

 Nor can it be constitutionally dispositive that other legislators in other jurisdictions have not enacted similar legislation, especially since plaintiffs have proffered no evidence to show that in those jurisdictions the factual situations are similar to that which exists in the City. See Anderson Affidavit at para. 21. In short, the City must be allowed the freedom to legislate with respect to its own situation and cannot constitutionally be precluded from doing so merely because other legislators in other places may have made equally rational decisions to the contrary. Moreover, plaintiffs have not established that the failure of such other legislators to enact such legislation was prompted, even in part, by their belief that loyalties resulting from such relationships do not interfere with job performance.

 Plaintiffs' conclusory assertion that police officers have long been members of or affiliated with nonpolice organizations without any perceptible effect on their ability to perform their duties to devoid of factual support. However, even if some factual support for that assertion existed, the absence of such experience in the past would still not be sufficient to demonstrate that the City acted irrationally or arbitrarily in precluding such problems in the future. The scope of legislataive rationality is not, cannot and should not be restricted to remedying evils that have already developed, so long as the anticipation of future problems is reasonable.

 Finally, the argument that defendants' involvement with the Municipal Labor Committee *fn8" and the Uniformed Forces Coalition *fn9" proves that defendants are insincere and that their fears are baseless is without merit. While in encouraging the existence of organized labor groups and coalition bargaining the City may also be encouraging cooperation between police and non-police unions, this Court cannot conclude that that conduct establishes that CBL 1173 is unconstitutional. Cooperation between police and non-police unions is clearly not the same as formal affiliation, and the dangers presented by the former are not nearly comparable to those raised by the latter.

 On balance, therefore, the public interest advanced by the statute in question outweighs any minimal infringement on plaintiffs' associational rights. The cases relied on by plaintiffs are inapposite. In each of these cases the restrictions imposed on speech and association were both direct and substantial. See, e.g., Police Officers' Guild v. Washington, 369 F. Supp. 543 (D.D.C. 1973).

 There remains for consideration plaintiffs' argument that CBL 1173 deprives them of equal protection of the laws because (1) it subjects only unions representing police officers of the police department to its terms whereas other police groups such as the New York State Police ("State Police"), the New York City Transit Authority Police ("Transit Police") and the New York City Housing Authority Police ("Housing Police") are not similarly constrained; and (2) it applies only to police unions.

 Since plaintiffs have made no showing that the statute directly and substantially impinges on fundamental rights *fn10" or that they are members of a suspect class, the appropriate standard of review is whether the classifications are rationally related to a legitimate government interest.San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 40, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973).

 At the outset it should be noted that disparities in treatment between the New York City Police Department and the State Police and the Transit Police have no relevance to the deprivation of equal protection claim made here. Neither the State Police nor the Transit Police are employed by the City and thus neither is subject to the provisions of CBL 1173. *fn11" No alleged denial of equal protection claim can properly be founded on alleged disparities in treatment between those who are subject to the provision of a challenged statute and those who are not.

 With respect to the Housing Police, it is not clear that any disparity in treatment has, in fact, been established. The New York City Housing Authority has elected to subject its employees to all the provisions of the New York City Collective Bargaining Law, and therefore, as defendants point out, has presumably subjected the Housing Police to the restriction contained in CBL 1173. Defendant OCB's Memorandum of Law in Support of Cross-Motion for Summary Judgment 14. The record is, therefore, devoid of evidence that defendants would apply CBL 1173 differently to these two police organizations.

 Even assuming arguendo that the Housing Police and the Transit Police were City employees and that the City nevertheless excluded them from the ambit of CBL 1173, this Court would still not find that plaintiffs had been denied equal protection of the laws. Both the Transit Police and the Housing police perform their functions primarily within the facilities and instrumentalities of their respective employers, to wit, subway cars and stations, buses and public housing developments. Since labor disputes rarely occur on this property, the potential for conflicting loyalties is not comparable to that faced by police officers. Therefore, the Court finds that treating New York City police and other police groups in the City differently would be entirely rational. *fn12" See Baker v. Cawley, 459 F. Supp. at 1304-05.

 Finally, in view of the duties with which police officers are charged, the Court also finds that it is rational to seek to preserve and promote labor neutrality in the police department while not similarly seeking to promote it in other municipal agencies. See id; Vorbeck v. McNeal, 407 F. Supp. 733, 739 (E.D. Mo.), aff'd mem., 426 U.S. 943, 96 S. Ct. 3160, 49 L. Ed. 2d 1180 (1976). Thus, no denial of equal protection of the laws claim may properly be grounded upon the fact that CBL 1173 does not apply to non-police unions.

 Plaintiffs' motion for summary judgment is therefore denied. Defendants' cross-motions for summary judgment are granted.


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