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August 11, 1990


The opinion of the court was delivered by: Conboy, District Judge:



The Daily News, which publishes the New York Daily News, a generally-circulated newspaper, employs over 2,500 people, most of whom are represented by one of ten labor unions ("the Unions"). The collective bargaining agreements ("CBA's") between the Daily News and the Unions expired on March 30, 1990. Since that time, the Daily News has engaged in numerous separate bargaining sessions with each of the Unions, in an effort to reach new CBA's. The Federal Mediation and Conciliation Service ("FMCS") is participating in the Daily News' negotiations with four of the unions, each of whom requested FMCS mediation. To date, no new CBA's have been reached.

By order of July 26, 1990, defendant Thomas Hartnett, the Commissioner of Labor of the State of New York ("the Commissioner") established a Board of Inquiry ("the Board"), pursuant to Labor Law §§ 800 et seq., which empowers the Commissioner to appoint a Board of Inquiry "[w]here any strike, lockout, or other labor dispute exists or is apprehended, . . . for the purpose of inquiring into the causes and circumstances of the dispute . . . and report thereon to the commissioner." Empanelling a Board of Inquiry, the Commissioner hoped, would provide a forum in which the labor dispute could be voluntarily resolved through fact-finding, discussion, mediation and conciliation. Affidavit of Thomas F. Hartnett, sworn to on August 7, 1990 ("Hartnett Aff.") ¶ 2. The Commissioner's order was premised, as required by Labor Law § 800, upon a certification from Hezekiah Brown, the Chairman of the New York State Mediation Board ("SMB"), that "in the [SMB's] opinion efforts to effect a voluntary settlement of the dispute have been unsuccessful."

Because of the economic consequences of a strike or lockout for both the Daily News and its employees, Brown has been following the dispute closely for months. In February of 1990, Brown called Edward Gold, Director of Labor Relations at the Daily News, and offered the services of the SMB. Affidavit of Hezekiah Brown, sworn to on August 8, 1990 ("Brown Aff."), ¶ 4. Gold declined the offer of assistance, indicating that negotiation meetings were scheduled and that, in his opinion, progress was being made. Id. However, the Unions, when contacted by Brown, apparently did not agree that much progress was being made. Id. Brown called the Daily News and the Unions periodically to reiterate his offer of assistance. Id. ¶ 5. Brown also contacted Brian Flores, then FMCS district director in New York City, about the Daily News negotiations, and told Flores of his offer to the parties to assist in their bargaining efforts. Id. Flores and Brown agreed to keep each other informed about the negotiations. Id.

In July of 1990, the Commissioner, apparently with an eye toward empanelling a Board of Inquiry, asked Brown to meet with the Daily News and the Unions to evaluate the status of the negotiations. Id. ¶ 6. To ascertain whether and how far the parties had progressed in their negotiations, Brown had discussions with each of the ten unions and with the Daily News, id., and received reports from all of the parties. Id. ¶ 7. Brown found that "[w]hile certain unions had reached agreement with the Daily News on a few items, the parties were still far apart on the major issues which divided them," including management rights, job security, fringe benefits and hours. Id.

Based on his observations and investigation, Brown concluded, in a letter to the Commissioner, "that efforts to effect a voluntary settlement of the dispute have been unsuccessful." Letter, dated July 26, 1990, from Hezekiah Brown to Thomas Hartnett (attached as Exhibit A to Brown Aff.) ("Certification Letter"). In addition to citing the primary points in dispute, also outlined above, Brown emphasized the "significant public interest in the parties' dispute," noting that "the negotiations may impact upon government efforts to promote appropriate economic development within the state, as well as the state's interest in protecting its workers in various regards." Id. Thus, Brown "recommend[ed] that a board of inquiry be asked to investigate the parties' ability and willingness to enter into mediation, in addition to the economic issues which are the underlying cause of the dispute." Id.

The Commissioner's July 26, 1990 order, attached as Exhibit B to the Complaint, requires the Board to investigate the circumstances of the dispute, including the parties' respective positions on subjects of bargaining. In addition, the order identifies six areas of inquiry, which include: how management rights need to be changed to allow the Daily News to continue profitably without impairing the basic rights of the employees; what the parties believe are appropriate manning levels; what changes in health insurance and pension benefits the parties desire; and whether the denial of management's overall proposals would lead to the shut down of the Daily News. Among the Board's powers are the power to subpoena witness, documents, contracts, papers and other evidence it may deem relevant to the dispute and the power to administer oaths and take testimony. The order directs the Board to issue a final report, which, unless the dispute is settled, shall include recommendations as to terms of settlement. Although the Board may hold hearings either in public or in private, the final report will be made public.

In a letter dated July 30, 1990, defendant Martin F. Scheinman, Chairman of the Board of Inquiry, informed the Daily News and representatives of each of the Unions that the first meeting of the Board would be held on Monday, August 6, 1990, at 11:00 a.m. Complaint, Exhibit C. The purpose of the meeting was to establish the procedures and ground rules for presentations to the Board. Id.

On August 1, 1990, the Daily News brought this action, seeking to prevent the defendants from convening the Board. Although the Unions apparently do not oppose the implementation of a Board of Inquiry, the Daily News is vehemently opposed to it. The Daily News argues in essence that the Board constitutes an impermissible interference by a State into the free and voluntary collective bargaining process between private parties which is not tolerated by federal labor law principles. Moreover, the Daily News asserts that its position in the negotiations and the bargaining process itself will be irreparably harmed by the Board's inquiry.

At a conference before the Court on August 1, the Commissioner agreed to postpone the first meeting of the Board of Inquiry for one week, from August 6, 1990, to August 13, 1990, to enable the Court to receive complete and detailed memoranda and affidavits on the issues presented in this action, and to hold a hearing on the matter. We received a supplemental memorandum of law and affidavits from the Daily News on Monday, August 6, 1990, and a memorandum of law and supporting affidavits from the State on Thursday, August 9, 1990.*fn1 On August 10, 1990, we held a ...

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