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January 17, 1984


The opinion of the court was delivered by: MCCURN



 Plaintiffs, the New York State Inspection, Security and Law Enforcement Employees, District Council 82 ("Council 82") and individual members of Council 82 commenced this action under 42 U.S.C. § 1983 to challenge, on First and Fourteenth Amendment grounds, the imposition of a penalty against Council 82 by the New York Public Emmployment Relations Board ("PERB"). The penalty, an 18 month suspension of dues check-off privileges, was imposed pursuant to New York's Taylor Law, NEW YORK CIVIL SERVICE LAW ("CSL") § 200 et seq., upon PERB's determination that Council 82 had encouraged and condoned an unprovoked strike in the spring of 1979.

 The defendants, represented by the Attorney General of the State of New York, have moved to dismiss the eight-count complaint for failure to state a claim upon which relief can be granted, Rule 12(b)(6), Fed. R. Civ. P. The motion is granted in part and denied in part, as hereinafter set forth.


 Accepting as true the material, non-conclusory allegations in the amended complaint, Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976), the background of this lawsuit may be summarized as follows. *fn1"

 Council 82 is the certified bargaining agent for New York State employees in the Security Services bargaining unit. Beginning in December of 1978, Council 82 bargained with the New York State Office of Employee Relations ("OER") over the terms of a new contract scheduled to expire on March 31, 1979. After an impasse was declared on March 20, 1979, PERB was notified and it assigned two members of its public Employment Conciliation section, Erwin Kelly and Benjamin Westervelt, to mediate the dispute. *fn2"

 Several negotiating sessions were held, during which the two parties were usually located in separate rooms and communicated through the PERB mediators. At the close of one such session, which ran from April 4-5, the parties believed from the communications of Kelly and Westervelt that an oral argument had been reached. Plaintiffs allege, however, that "after exhaustive efforts to reduce the same to writing . . . the union realized on April 13, 1979, that no meeting of the minds had been achieved. . . . Amended Complaint P49. Since the State maintained the view that an agreement had already been reached and refused to bargain further, Council 82 demanded that PERB order the resumption of negotiations.

 That demand was considered by the PERB Board, comprised of defendants Harold Newman, Ida Klaus, and David C. Randles. On April 16, after having conferred with the mediators and PERB attorneys, and after having also conferred with the OER director Meyer Frucher and his staff, but without having conferred with representatives of Council 82, the Board made what plaintiffs characterize as "the crucial decision": it decided that a complete agreement had been reached by Council 82 and the State, and that it would therefore not order the resumption of negotiations.

 The following day, Council 82 filed an improper practice charge with PERB, alleging that the state was refusing to bargain in good faith. *fn3" Two days later, on April 29, the State filed a reciprocal charge with PERB, alleging that an agreement had previously been reached and initialed by the parties, but had been repudiated by Council 82. *fn4"

 Also on April 19, Council 82 commenced an action in State Supreme Court, Albany County, and immediately moved by order to show cause to enjoin the State from imposing the terms of the alleged contract on the bargaining unit. The court granted plaintiffs' motion for a preliminary injunction upon finding that Council 82 "has a high probability of success on the merits in its action for a declaratory judgment that no final agreement was reached." Amended Complaint Appendix 3 at 5-6.

 Meanwhile, beginning on April 18, "large numbers of bargaining unit employees absented themselves from work and continued to do so until approximately 8:00 a.m. on May 4, 1979." Amended Complaint P57. *fn5"

 On May 29, PERB Counsel Martin Barr issued a strike charge against Council 82 pursuant to NY CSL § 210.3(c), and amended that charge on June 6. The strike charge was ordered to be tried jointly with the two improper practice charges the parties had previously leveled against each other; the three charges were assigned to PERB Hearing Office Robert Miller for fact-finding and recommendation.

 In a seventeen page decision rendered December 29, 1980, Hearing Officer Miller rejected Council 82's contention that an agreement had never been reached and that the strike was provoked. Instead, he found:

 In a meeting on April 4 which lasted until the early morning hours of April 5, agreement on all remaining issues was reached "in concept," a majority of the entire union negotiating team having voted its approval. . . . It was understood by each of the parties that all that remained was to draft the wording of agreement and submit it to the Union membership for ratification.

 Amended Complaint Appendix 5 at 4.

 Hearing Officer Miller further found that when the Union negotiators presented the agreement to the unit members the reaction was overwhelmingly negative, and that due to membership pressure, the negotiators repudiated the agreement on April 13, citing various pretexts. Id. Appendix 5 at 5-8.

 After a discussion of Council 82's role in the ensuing strike, Hearing Officer Miller concluded as follows:

 I find that the Union did not engage in, directly cause, or instigate the strike, but that it encouraged and condoned it in violation of § 210.1 of the Act, and that the primary causative factor for the strike was the Union's attempted evasion of its obligations to negotiate in good faith, as to which I find that the Union had violated § 209-a.2(b) of the Act.

 Id. Appendix 5 at 17. The improper practice charge filed by Council 82 against the State was dismissed.

 Council 82 appealed to the PERB Board, which rendered a decision on September 24, 1981, affirming the Hearing Officer's findings of fact and conclusions of law. The Board then considered an appropriate penalty to impose in light of the statutory criteria set forth in NY CSL § 210.3(f), and ordered:

 That the dues deduction and agency shop fee privileges, if any, of DC 82 be forfeited, commencing on the first practicable date and continuing thereafter for a period of 18 months. Thereafter no dues or agency shop fees shall be deducted on its behalf until it affirms that it no longer asserts the right to stike against any government, as required by the provision of CSL § 210.3(g).

 Id. Appendix 6 at 8-9.

 One month later, this federal suit was commenced. The parties have stipulated to stay the suspension of dues check-off privileges until entry of a judgment by this court finally determining the action.


 Before proceeding to analyze each of the eight claims for relief in the Amended Complaint, the court notes that dismissal under Rule 12(b)(6) is not warranted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, supra, 355 U.S. at 45-46.


 Plaintiffs' first claim is that "the manner in which PERB applied New York Civil Service Law Section 210 to Council 82 constitutes a deprivation of property without due process of law." Amended Complaint at 34. The gravamen of the claim is that PERB adjudicators were biased and prejudged the strike charge against Council 82. Allegations in support of the claim are scattered throughout the lengthy Amended Complaint. Summarized, plaintiffs allege that the PERB adjudicators were improperly influenced by (A) their personal familiarity with, and involvement in the events preceding the strike; (B) their need to adhere to a previous administrative determination; (C) their personal bitterness toward Council 82 and its members; and (D) ex parte communications during the course of the PERB proceedings. Plaintiffs also base their claim of prejudgment on (E) an allegation that remarks by PERB Chairman Newman revealed his prior determination of adjudicative facts.

 "[D]ue process demands impartiality on the part of those who function in judicial or quasi-judicial capacities." Schweiker v. McClure, 456 U.S. 188, 195, 72 L. Ed. 2d 1, 102 S. Ct. 1665 (1982); Wolkenstein v. Reville, 694 F.2d 35, 41 (2d Cir. 1982). Accordingly, where it is shown that the decisionmaker was actually biased, or that the circumstances were such that the risk of bias is too great, the proceeding is "constitutionally unacceptable" and the decision must be overturned. Withrow v. Larkin, 421 U.S. 35, 47, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975). *fn6"

 However, a bare allegation of bias or prejudgment does not suffice to state a claim that due process has been violated. Notwithstanding the general principles of Conley v. Gibson, supra, the claim that a decisionmaker was prejudiced "is so easily made and can precipitate such protracted proceedings with such disruption of governmental functions," Angola v. Civiletti, 666 F.2d 1, 4 (2d Cir. 1981), that the complaint must contain some specific factual allegations indicating bias or prejudgment, and not rely only upon conclusions. United States v. Scaccia, 514 F. Supp. 1353, 1355 (N.D.N.Y. 1981) (Macmahon, C.J.). See, Koch v. Yunich, 533 F.2d 80 (2d Cir. 1976). In order to overcome the presumption that administrators who serve as adjudicators are unbiased, those allegations must reveal either actual prejudice or some disqualifying pecuniary or institutional interest. Schweiker v. McClure, supra, 456 U.S. at 195; Wolkenstein v. Reville, supra, 694 F.2d at 41.

 Moreover, the court rejects at the outset the plaintiffs' argument that allegations of bias always require the examination of a factual record and cannot be dismissed by mere reference to the complaint. Just as Withrow identified situations where the risk of bias is "constitutionally unacceptable," that case and others have conversely identified situations where the risk is deemed acceptable. Allegations of circumstances where the risk of bias is constitutionally acceptable do not state a claim for relief. See e.g., O'Brien v. Bd. of Ed. of the City of New York, 498 F. Supp. 1033 (S.D.N.Y. 1980) (dismissing claim of inherent bias in Taylor law proceeding); Tepper v. Galloway, 481 F. Supp. 1211 (E.D.N.Y. 1979) (same); Starrs v. Block, Civ. No. 77-5435, 12 P.E.R.B. 7501 (S.D.N.Y. 1978) (same).


 In support of their contention that PERB adjudicators prejudged the case based on their familiarity with and involvement in the negotiations, plaintiffs allege, inter alia, that,

 [PERB Chairman] Newman was in almost daily communication with the mediators Kelly and Westervelt, his attorneys Lefkowitz, Barr, Thier and Cagliostro, as well as the defendants Carey and Frucher or their representatives regarding the status of the negotiations, the actions of the parties and their legal rights and responsibilities to the end that he was fully informed of the version of the facts and law as perceived by [those persons], and the defendant Newman in turn communicated the substance of all of the foregoing to [PERB Board members] Klaus and Randles.

 Amended Complaint P44. Similar allegations of communications among PERB personnel, and of communications between PERB adjudicators and the negotiating parties appear throughout the Amended Complaint. E.g., PP22-24, 45, 46, 50, 55, 56, 71, 74, 75.

 In plaintiffs' view, PERB's familiarity with and involvement in the negotiations makes this situation one "in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." Withrow, supra, 421 U.S. at 47.However, the Withrow decision itself, and the subsequent Supreme Court decision in Hortonville Joint School District No. 1 v. Hortonville Education Ass'n, 426 U.S. 482, 49 L. Ed. 2d 1, 96 S. Ct. 2308 (1976) establish that such allegations do not support a claim of unconstitutional bias.

 In Withrow, the Supreme Court considered whether a state medical examining board could constitutionally preside over a license suspension hearing on charges evolving from its own investigation. Plaintiffs argued that the combination of investigative and adjudicative functions necessarily created an unconstitutional risk of bias.The Court unanimously rejected that view, and held that,

 [t]he mere exposure to evidence presented in a nonadversary investigative procedure is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing. Without a showing to the contrary, state administrators "are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances."

 Id., 421 U.S. at 55, quoting United States v. Morgan, 313 U.S. 409, 421, 85 L. Ed. 1429, 61 S. Ct. 999 (1941).

 Similarly, in Hortonville, the Court held it constitutionally permissible for Board of Education officials, who had participated in pre-strike negotiations with teachers, to preside over a hearing for the purpose of determining whether teachers who have admitted engaging in an illegal strike should be dismissed. Citing Withrow v. Larkin, supra, the Court explained that "mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker," Id., 426 U.S. at 493, and that "a showing that the Board was "involved" in the events preceding this decision . . . is not enough to overcome the presumption of honesty and integrity in policymakers with decisionmaking power." Id. at 497.

 Plaintiffs argue that Hortonville is distinguishable on the ground that the teachers who appeared before the Board-administered hearing had admitted participating in an illegal strike, and that the Board was charged with making a policy-based decision, not an adjudicative decision. They maintain that in this case, the PERB Board was charged with the adjudicative function of determining whether an agreement had been reached in April of 1979, and whether Council 82 condoned the ensuing strike.

 Although in this court's view the holding of Withrow would control in any event, it is also not persuaded that Hortonville is inapposite. First, PERB's function in this case was, to a large extent, exactly like that of the School Board in Hortonville: the PERB decisionmakers were required to weigh various policy factors and arrive at an appropriate penalty.See NY CSL § 210.3(f).

 Second, while it is true that the Supreme Court emphasized that the Hortonville School Board's decision was not "adjudicative" in nature, a careful reading of the statement of facts in that opinion reveals that the School Board actually determined a factual question quite similar to the question before PERB:

 On April 1, most of the striking teachers appeared before the Board with counsel. . . . An offer of proof was tendered to demonstrate that the strike had been provoked by the Board's failure to meet teachers' demands, and respondents' counsel asked to cross-examine Board members individually. The Board rejected the request, but permitted counsel to make the offer of proof, aimed at showing that the Board's contract offers were unsatisfactory, that the Board used coercive and illegal bargaining tactics, and that teachers in the district had been locked out by the Board.

 Id., 426 U.S. at 434-45. Thus the teachers in Hortonville, like Council 82, presented to the decisionmakers evidence that would either have absolved them of responsibility for the strike, or mitigated the penalty for participating therein.

 Third, the more important factual determination that PERB had to make was whether Council 82 had condoned the strike, and this was not a matter with which PERB board members had personal involvement. Indeed, it is evident from the Hearing Officer's decision, Amended Complaint Appendix 5, that the finding of condonation rested largely upon a news release issued by the union, expressing it support for the strike.

 Finally, the court observes that in an important respect, the teachers in Hortonville presented a far stronger case for a finding of inherent bias than do the plaintiffs here. In Hortonville, the same persons who had sat opposite the teachers at the bargaining table later sat in judgment over the actions of their recent adversaries. In contrast, the PERB members who adjudicated and reviewed the strike charge had gained their familiarity with the issues only through their role as mediators, or through their alleged contacts with those who had mediated or negotiated. Under such circumstances, the potential for inherent bias is not "constitutionally intolerable," and the allegations of prior familiarity and involvement do not state a claim for relief.


 Plaintiff next contend that PERB prejudged the strike charge against the Union because on April 16, 1979, it made "the crucial decision that a meeting of the minds had been reached," when it denied Council 82's demand to resume mediation or negotiations. Specifically, plaintiffs allege that the April 16 decision "constituted the final determination by PERB of the underlying issue in the proceeding later heard by Miller and decided by PERB, Amended Complaint P50, and that, at the conclusion of that subsequent proceeding,

 the defendants PERB, Newman, Klaus and Randles were compelled to deny Council 82's claim of extreme provocation, dismiss Council 82's improper practice charge in order to be consistent with their determination of April 16 since a contrary determination would necessarily hold that there was no meeting of the minds, no tentative agreement and that PERB had ...

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