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NEW YORK STATE INSPECTION v. NEW YORK STATE PUB. E

December 12, 1985

NEW YORK STATE INSPECTION, SECURITY AND LAW ENFORCEMENT EMPLOYEES, DISTRICT COUNCIL 82, AFSCME, AFL-CIO by its President, JOHN BURKE, and MARIO PERIERO, RANDAL NAPPER, THOMAS HALEY, JOHN POST, JAMES FACTEAU, KEITH BERG, LEE EMERY and GARY CANNING, Plaintiffs,
v.
THE NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, HAROLD NEWMAN, as Chairman and a member thereof, IDA KLAUS and DAVID C. RANDLES as members thereof, HUGH CAREY, as Governor of the State of New York, EDWARD V. REGAN, as Comptroller of the State of New York, and MEYER FRUCHER, as Director of the Office of Employee Relations of the State of New York, Defendants



The opinion of the court was delivered by: MCCURN

NEAL P. McCURN, D.J.

MEMORANDUM-DECISION AND ORDER

 This action was brought by plaintiffs New York State Inspection, Security and Law Enforcement Employees, District Council 82 (Council 82) and individual members of Council 82 against defendants New York State Public Employment Relations Board (PERB) and its individual members pursuant to 42 U.S.C. § 1983 for alleged violations of the First and Fourteenth Amendments. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343. Presently pending before the court is the defendants' motion for summary judgment.

 The act upon which the complaint is based is PERB's imposition of a penalty against Council 82 in the form of an eighteen-month suspension of dues check-off privileges. The penalty was imposed pursuant to New York's Taylor Law, N.Y. Civ. Serv. Law § 200 et seq. (McKinney 1983) because of PERB's determination that Council 82 had encouraged and condoned an unprovoked strike in the spring of 1979.

 The defendants moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The court granted the motion with respect to the Second through Eighth Claims for Relief but denied it as to the First Claim, which alleges a due process deprivation, with respect to the following allegations: (1) that PERB members were rendered partial *fn1" by verbal abuse directed toward them; (2) that PERB members discussed the pending case against Council 82 with PERB attorneys; and (3) that a public statement made by PERB Chairman Harold Newman indicated prejudgment or created the appearance of prejudgment of the case. New York State Inspection, Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO, et al. v. The New York State Public Employment Relations Board, et al., 629 F. Supp. 33 (N.D.N.Y. 1984) (Council 82 v. PERB) (available on LEXIS, Genfed library, Dist file).

 Since the earlier decision in this case, the defendants have set forth another issue for the court's determination: whether the availability of an Article 78 proceeding in New York State court would have provided the plaintiffs the due process of which they claim they were deprived by the defendants' actions. See N.Y. Civ. Prac. Law § 7801 et seq. (McKinney 1981).

 FACTS

 In December of 1978, Council 82 began bargaining with the New York State Office of Employee Relations over the terms of a new contract that was to succeed a contract due to expire on March 31, 1979. An impasse was declared on or about March 20, 1979 after the parties were unable to reach an agreement. PERB was notified of the impasse, and it assigned two staff members to mediate the dispute.

 Negotiating sessions continued over a period of days. At the conclusion of one of the sessions, which ran from April 4 to April 5, 1979, the communications of the PERB staff members led the parties to believe that an oral agreement had been reached. Chairman Harold Newman indicated prejudgment or created the appearance of prejudgment of the case. New York State Inspection, Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO, et al. v. The New York State Public Employment Relations Board, et al., 629 F. Supp. 33 (N.D.N.Y. 1984) (Council 82 v. PERB) (available on LEXIS, Genfed library, Dist file).

 Since the earlier decision in this case, the defendants have set forth another issue for the court's determination: whether the availability of an Article 78 proceeding in New York State court would have provided the plaintiffs the due process of which they claim they were deprived by the defendants' actions. See N.Y. Civ. Prac. Law § 7801 et seq. (McKinney 1981).

 FACTS

 In December of 1978, Council 82 began bargaining with the New York State Office of Employee Relations over the terms of a new contract that was to succeed a contract due to expire on March 31, 1979. An impasse was declared on or about March 20, 1979 after the parties were unable to reach an agreement. PERB was notified of the impasse, and it assigned two staff members to mediate the dispute.

 Negotiating sessions continued over a period of days. At the conclusion of one of the sessions, which ran from April 4 to April 5, 1979, the communications of the PERB staff members led the parties to believe that an oral agreement had been reached.

 However,

 [A]fter extensive efforts to reduce the [agreement] to writing encompassing some five or more sessions at which PERB provided mediation services. . .the Union realized on April 13, 1979 that no meeting of the minds had been achieved, and plaintiff Council 82 demanded that the defendant PERB reconvene negotiations.

 Amended Complaint at P 49.

 The plaintiffs' demand was considered by defendants Newman, Ida Klaus, and David Randles, members of PERB. On April 16, 1979, the Board made what the plaintiffs characterize as "the crucial decision." PERB decided that a complete agreement had been reached by Council 82 and the State; it therefore would not order the resumption of negotiations.

 On April 17, Council 82 filed an improper practice charge with PERB alleging that the State was refusing to bargain in good faith. Two days later, the State filed a reciprocal charge with PERB alleging that an agreement had been reached by the parties but had been repudiated by Council 82.

 In the meantime, on April 18, a large number of bargaining unit employees failed to report to work. Due to the absence from work of the bargaining unit employees from April 18 to May 5, 1979, PERB Counsel Martin Barr issued a strike charge against Council 82 pursuant to N.Y. Civ. Serv. Law § 210.3(c) (McKinney 1983) on May 29, 1979. The strike charge was ordered to be tried jointly with the two improper practice charges that the parties had previously filed, and the case was assigned to Hearing Officer Robert Miller for fact-finding and recommendation.

 In his decision of December 29, 1980, Miller rejected Council 82's contention that an agreement had never been reached and that the strike was provoked. 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.

 Hearing Officer's Decision at 4.

 Miller further found that when Council 82's negotiators presented the agreement to the members, the reaction was extremely negative. Because of membership pressure, the negotiators repudiated the agreement on April 13, 1979. Id. at 5-8. The Hearing Officer also 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 § 201.1 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 ...


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