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LEGAL AID SOCY. v. ASSOCIATION OF LEGAL AID ATTYS.

December 20, 1982

THE LEGAL AID SOCIETY, a Not-for-Profit Corporation, Plaintiff
v.
ASSOCIATION OF LEGAL AID ATTORNEYS OF THE CITY OF NEW YORK, DISTRICT 65, UNITED AUTOMOBILE WORKERS, AFL-CIO, et al., Defendants



The opinion of the court was delivered by: WARD

HON. ROBERT J. WARD, District Judge

 THE COURT: Good afternoon.

 This is the decision of the court.

 This action represents an attempt by an employer to obtain an injunction prohibiting a striking union and its members and officers from disciplining union members who have crossed union picket lines. The plaintiff employer also seeks declaratory relief and damages. At this time the Court is faced with a motion by plaintiff for a preliminary injunction. Because plaintiff has failed to meet the standard in this Circuit for preliminary injunctive relief, plaintiff's motion is denied.

 BACKGROUND

 This action was originally brought in the Supreme Court of the State of New York, County of New York. Defendants removed the action to this Court pursuant to 28 U.S.C. section 1441 (a), on the ground that plaintiff's complaint asserts claims based on federal law. The instant motion for preliminary injunctive relief has been brought pursuant to an order to show cause issued prior to the removal of this action to federal court by the Honorable Donald J. Sullivan, a Justice of the Supreme Court of the State of New York.

 The defendants in this action are the Association of Legal Aid Attorneys, District 65, UAW, AFL-CIO (the "Association"); Carol Gerstl, president of the Association; and several individual members of the Association. The plaintiff is the Legal Aid Society (the "Society"), a not-for-profit corporation which provides legal services to indigents in New York City. The plaintiff is also the employer of the members of the defendant Association.

 This action emerges amidst a labor dispute in which the membership of the Association has been on strike against the Society since October 22, 1982. For the purposes of the instant motion, defendants have not contested any relevant factual representations made by plaintiff. Because the Association's membership is comprised of attorneys, who are bound by professional and ethical obligations to their clients, the Association constitution recognizes that a strike cannot represent a complete work stoppage. The Association constitution articulates a standard that, in sum, permits union members to cross picket lines to appear in connection with cases in which a hearing or trial was in progress at the commencement of a strike. According to the Association, approximately 35 of its 600 members had, as of December 10, 1982, crossed picket lines in violation of the Association constitution. Disciplinary proceedings, which can lead to fines of up to one day's pay for every day that picket lines are crossed, have been commenced against several of the Association members who have crossed picket lines.

 The Society seeks to enjoin any such fines and any further disciplinary proceedings. The core of the various claims made by plaintiff in this matter is that the defendants' disciplining of union members who cross picket lines constitutes an unlawful conspiracy. That conspiracy, according to plaintiff, has several unlawful purposes and effects. Plaintiff not only asserts claims on its own behalf, but also contends that it has standing to assert claims on behalf of two distinct groups of harmed individuals who are not parties to this action. The groups of individuals are 1) those union members who have crossed or wish to cross union picket lines, and 2) those indigent persons in need of the services of the Society who are deprived of such services as a result of the instant disciplinary proceedings.

 Plaintiff's complaint is best understood by separating the allegations as to each group or party harmed. On behalf of itself, plaintiff has proffered two allegations of tortious interference. The first is that defendants have interfered with the Society's ability to perform its contractual obligations toward the City of New York to provide legal services for indigents charged with crimes. Second, defendants are said to have tortiously interfered with the Society's contractual, professional and ethical obligations to its clients to provide adequate legal representation.

 On behalf of union members who wish to cross union picket lines, plaintiff has repeated its state-law claim of tortious interference with the ability of the attorneys to perform their contractual, professional and ethical obligations to represent their clients. In addition, plaintiff has charged that said interference results from a conspiracy by defendants to violate the civil rights of non-striking attorneys, and as such constitutes a violation of 42 U.S.C. section 1985 (3).

 Finally, on behalf of certain indigent persons in need of legal services, plaintiff repeats its allegation of a conspiracy in violation of 42 U.S.C. section 1985 (3). Plaintiff argues in effect that the disciplining by defendants of union members who cross picket lines is part of a conspiracy intended to deprive the indigent of New York of their constitutional rights to due process, equal access to the courts, and equal protection of the laws. The injuries alleged by plaintiff on its own behalf, as to its relationships with its clients and with the City of New York, are said to constitute a concrete harm suffered by plaintiff as a result of this same conspiracy.

 STANDARD FOR RELIEF

 The Court begins its analysis of the propriety of preliminary injunctive relief by determining the standard that should apply in the instant case. The generally applicable standard in this Circuit for preliminary injunctive relief is well settled. It requires a showing of (a) irreparable harm and (b) either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting relief. Jackson Dairy v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979) (per curiam); accord Sperry Int'l. Trade, Inc. v. Government of Israel, 670 F.2d 8, 11 (2d Cir. 1982). The application of this general standard to the instant case is complicated somewhat by the fact that this action is brought on behalf of three distinct classes of injured parties, each of whom is alleged to have suffered from distinct types of harm, and each of whom raises distinct issues on the merits.

 The Court turns first to the issue of irreparable harm. As to all three classes of injured parties, plaintiff has alleged harms for which there exist no adequate remedy at law. On behalf of the Society as well as on behalf of attorneys who wish to cross union picket lines, plaintiff has charged that defendants' disciplinary policies interfere with the performance of contractual, professional and ethical responsibilities for which money damages could not compensate. Similarly, the alleged deprivation suffered by certain indigent persons of equal access to the courts and other constitutional protections is not remediable on a post-hoc basis. While there may be some question as to the causal nexus between the actions challenged and the harms alleged, defendants, as noted, have not disputed plaintiff's factual allegations at this juncture.

 The issue of the balance of the hardships is somewhat more complicated. In sum, the Court discerns no basis for construing any harms but those suffered by indigent clients as constituting a "balance of hardships tipping decidedly toward the party requesting relief." Defendants in this action, it must be remembered, are not only involved in an ongoing labor dispute with plaintiff, but are currently on strike. The Court has accepted plaintiff's allegation that the disciplinary proceedings at issue today are having a significant impact on the results and effectiveness of that strike. If that is the case, any preliminary injunction accorded in this matter would significantly weaken the strike, and undermine defendants' position in the ongoing labor dispute. Such developments would irreparably compromise important rights scrupulously preserved to defendants by the National Labor Relations Act ("NLRA"), 29 U.S.C. sections 151 et seq. See NLRB v. Erie Resistor Corp., 373 U.S. 221, 233-35, 10 L. Ed. 2d 308, 83 S. Ct. 1139 (1963) (discussing "repeated solicitude for the right to strike" expressed by Congress in legislative history of NLRA); see also International Association of Machinists and Aerospace Workers v. National Mediation Board, 138 U.S. App. D.C. 96, 425 F.2d 527, 536-37 (D.C. Cir. 1970) (noting "constitutional as well as common law underpinnings of the rights of employees to strike"). Irreparable harm to defendants' ability to effectively exercise their right to strike ...


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