NY State Inspection v. NY State Pub. Emp. Rel., 81-CV-1165.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Citation629 F. Supp. 33
Docket NumberNo. 81-CV-1165.,81-CV-1165.
Decision Date17 January 1984




Rowley Forrest and O'Donnell, Albany, N.Y., for plaintiffs; Richard R. Rowley, of counsel.

Robert Abrams, Atty. Gen. of N.Y., Albany, N.Y., for defendants; Allan S. Kaufman, Asst. Atty. Gen., of counsel.


McCURN, District Judge.

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 Employment 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, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Koch v. Yunich, 533 F.2d 80, 85 (2d Cir.1976), the background of this lawsuit may be summarized as follows.1

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.2

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 ¶ 49. 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.3 Two days later, on April 19, 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 82.4

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 ¶ 57.5

On May 29, PERB Counsel Martin Barr issued a strike charge against Council 82 pursuant to N.Y. 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 has 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 N.Y. CLS § 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 strike against any government, as required by the provisions 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, 78 S.Ct. at 101-02.


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.

"Due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities." Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1669, 72 L.Ed.2d 1 (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, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975).6

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) ...

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