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June 19, 1990


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


These are motions by the plaintiff for an order holding defendants in contempt, to amend the complaint, and for injunctive relief.


Plaintiff, the New York Times Company (Times), filed this action on September 14, 1989 against the Newspaper and Mail Deliverers' Union of New York and Vicinity (NMDU); Michael Alvino (Alvino), individually and as President of the NMDU; Seymour Goldstein (Goldstein), individually and as Business Agent of the NMDU; John Medica (Medica), individually and as Chapel Chairman (shop steward) of the NMDU; Gary Ericson (Ericson), individually and as Assistant Chapel Chairman of the NMDU; and all others in active concert or participation with them. The complaint sought injunctive relief, damages, costs and attorney's fees, based upon allegations of a pattern of "work slowdowns" in violation of the collective bargaining agreement's "no strike" and arbitration provisions. Under the "no strike" provision, the NMDU is prohibited from engaging in strikes, slowdowns or other forms of work stoppages with respect to disputes subject to the arbitration process, which consists of a hearing before a five-person committee (two labor representatives, two management representatives and the Impartial Arbitrator, Richard Adelman).

Also on September 14, 1989, the Times obtained from this Court a temporary restraining order (a "status quo" order) enjoining defendants from playing a role in either (1) an "interruption in the normal and timely delivery of newspapers . . . over any" arbitrable dispute or (2) a refusal to comply with a status quo award issued under the arbitration provisions of the collective bargaining agreement. The Court also signed an order to show cause why a preliminary injunction should not issue embodying the provisions of the TRO. The TRO was to expire on September 19, 1989, the return date of the order to show cause.

On September 18, 1989, pursuant to a stipulation of the parties, the Court extended the effectiveness of the temporary restraining order "until the conclusion of the hearing on plaintiff's application for a preliminary injunction" and adjourned the date of the hearing on the application for a preliminary injunction to October 17, 1989. On October 13, 1989 and on various dates thereafter, the Court, in the light of ongoing labor negotiations between the parties and pursuant to the parties' stipulations, adjourned the date of hearing to March 23, 1990. At that time the Court ruled that, pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, a consolidated hearing for a preliminary injunction and trial on the merits would be held on March 28, 1990. On March 27, 1990, the parties requested an adjournment of the hearing and trial which was denied. On March 28, 1990, the parties filed a stipulation and order pursuant to which (i) the Court entered a "status quo" injunction embodying the terms of the TRO; (ii) the request by plaintiff for damages caused by the work stoppages and slowdowns referred to in the complaint was dismissed; (iii) defendants' pending motion to dismiss the complaint was withdrawn with prejudice; (iv) the parties agreed to arbitrate a list of specific grievances within ninety days; and (v) the Court retained jurisdiction to enforce the Injunction.

On March 29, 1990, the plaintiff made application for and obtained another temporary restraining order, as well as an order to show cause why the Court should not (i) hold defendants in contempt of the March 28, 1990 Injunction, (ii) award plaintiff "its actual damages suffered as a result of defendants' contempt (including attorneys fees and costs) and set[] coercive fines . . . payable to plaintiff in the event that defendants do not purge the contempt"; (iii) permit plaintiff to file an amended complaint, and (iv) issue a preliminary injunction prohibiting any work interruptions and non-compliance with "status quo" awards, but without the limitation contained in the March 28, 1990 Injunction enjoining only those interruptions over disputes "resolvable under the grievance and arbitration provisions of the collective bargaining agreement between the Times and the NMDU." The March 29, 1990 TRO however contained the same provisions as the March 28, 1990 Injunction. A hearing on the order to show cause was set for April 4, 1990 and the TRO was ordered effective through April 4, 1990 "or the conclusion of the hearing, whichever is later." Hearings on plaintiff's motions were conducted on April 4, 5, 9, 10, 11 and 12, 1990. Both parties submitted post-hearing memoranda on or before April 24, 1990.


I. Contempt Findings

The Times seeks an order holding NMDU and the individual defendants, except for Ericson, in contempt for a 50 minute walkout by approximately 80 to 100 members of NMDU at the Times 43rd Street Plant on March 28, 1990. The walkout took place from approximately 9:30 P.M. to 10:20 P.M., barely nine hours after the Court had signed the Injunction. The defendants do not dispute that said walkout occurred, nor do they dispute the authority of the Court to issue the TRO and March 28, 1990 injunction. See Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). Instead, defendants contend that a finding of contempt is inappropriate because the incident was a "wildcat" action for which the NMDU and its officials bore no responsibility.

A union is not automatically liable every time its members go on strike. In this civil contempt proceeding, plaintiff bears the burden of establishing defendants' responsibility for the violation of the injunction by clear and convincing evidence. EEOC v. Local 638, 753 F.2d 1172, 1178 (2d Cir. 1985), aff'd sub nom., Local 28 v. EEOC, 428 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986); Black Diamond Coal Mining Co. v. Local Union No. 8460, 597 F.2d 494, 496 (5th Cir. 1979). Plaintiffs must prove defendants liable "under a common law agency theory, i.e., it must be shown union officials encouraged or ratified the strike in some way." Consolidation Coal Co. v. Local 2216, 779 F.2d 1274, 1277-79 (7th Cir. 1985) (citing Complete Auto Transit v. Reis, 451 U.S. 401, 101 S.Ct. 1836, 68 L.Ed.2d 248 (1980) and Carbon Fuel v. United Mine Workers, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979)). A union's "[r]atification [of a strike] occurs where the union's efforts to return strikers are so minimal that the union's approval or encouragement may be inferred. Liability may be avoided, obviously, by a credible demonstration of union disapproval." United States Steel Corp. v. United Mine Workers, 598 F.2d 363, 365 (5th Cir. 1979); see also Consolidation Coal Co. v. Local 1702, 683 F.2d 827, 831 & n. 5 (4th Cir. 1982) (contempt based upon union's failure to "use reasonable efforts to end the strike");*fn1 cf. EEOC v. Local 638, 753 F.2d at 1178 (contempt based upon union's failure to be "`reasonably diligent and energetic in attempting to accomplish what was ordered'") (quoting Powell v. Ward, 643 F.2d 924, 931 (2d Cir.), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981)).

Here the Court holds NMDU and two of its officials in contempt based upon findings that (a) in the weeks preceding the March 28, 1990 walkout, NMDU officials engaged in acts which created an atmosphere that encouraged and incited labor activity in violation of the collective bargaining agreement, such as the one hour work stoppage of March 28, 1990, and that (b) NMDU officials refrained from engaging in authoritative preventive action on March 28, 1990.*fn2 A review of the practices of the Times's employees and the relations between NMDU and the Times over the past several months is necessary to comprehend the Court's findings.

  A. Union — Employer Tensions Prior to the September 14, 1989

The Times employees, represented by NMDU, are responsible for loading, driving, and unloading trucks on a variety of newspaper delivery routes in the City and other areas of the Northeast. Their work shift begins at 9:30 p.m. and ends at 4:30 a.m. In the summer of 1989, the Times informed the NMDU that it intended to implement a reorganization of the West Side Direct Routes so that the distribution of newspapers in that area would be more efficient and less costly. The Times believed that it could undertake such a reorganization under Appendix B to the collective bargaining agreement, as long as the number of delivery routes in the West Side operation were not reduced. The Appendix B amendment to the collective bargaining agreement, upon which the Times relied, was reached in 1988 with a prior union management and counsel. The current NMDU management, elected in June 1989, was not in agreement with the Times's understanding that the Times had such a right under the collective bargaining agreement. Consequently, the proposed reorganization of the West Side Direct Routes as well as several other issues developed into the subjects of disputes between the current NMDU management and the Times during the summer of 1989.

The tension between NMDU and the Times soon manifested itself in the form of NMDU resorting to self-help actions over disputes which the collective bargaining agreement required to have been resolved by arbitration. On August 24, 1989, at the Times's Carlstadt, New Jersey printing plant, a conveyor belt was shutdown by defendant Ericson, upon instructions from defendant Medica and Business Agent James Brennie, over a dispute with foreman Ronald McQuade concerning the appropriate number of NMDU members required in loading a truck.*fn3 Workers remained idle for approximately 45 ...

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