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N.Y. NEWS v. METROPOLITAN TRANSP. AUTH.
December 18, 1990
NEW YORK NEWS, INC., PLAINTIFF,
METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY AND ROBERT KILEY, CHAIRMAN OF THE METROPOLITAN TRANSPORTATION AUTHORITY, DEFENDANTS, AND RON REALE, AS PRESIDENT OF THE POLICE BENEVOLENT ASSOCIATION, NEW YORK CITY TRANSIT POLICE DEPARTMENT, AND LOCAL 100, TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, INTERVENORS.
The opinion of the court was delivered by: Cedarbaum, District Judge.
The question presented by this motion for a preliminary
injunction is whether plaintiff is likely to succeed at trial
in showing that by revoking permits for the sale of The Daily
News by direct sellers ("hawkers") because of threatened
unlawful conduct, defendants abridged plaintiff's freedom of
speech and of the press in violation of the First and
Fourteenth Amendments to the United States Constitution. For
the reasons discussed below, plaintiff is likely to succeed in
establishing that the revocation was unconstitutional because
it was not reasonable regulation, and accordingly, plaintiff's
motion for a preliminary injunction is granted to the extent
Plaintiff is the publisher of The Daily News, a daily
newspaper. Defendants Metropolitan Transportation Authority
("MTA") and the New York City Transit Authority ("TA") are
public benefit corporations which are responsible for the
operation of the subway and commuter railroad systems serving
the New York metropolitan area, including the Long Island Rail
Road and the Metro-North Commuter Railroad ("Metro-North").
Defendant Robert Kiley is the Chairman of the MTA and the TA.
Intervenor Ron Reale is the president of the Police Benevolent
Association for the New York City Transit Police Department.
Intervenor Local 100, Transport Workers Union of America,
AFL-CIO, is the collective bargaining representative of some
35,000 hourly rated TA employees responsible for the operation
and maintenance of the New York City bus and subway system. The
New York Civil Liberties Union has filed a brief amicus curiae
in support of plaintiff's position.
Nine of the ten unions representing employees of The Daily
News are on strike. Before the strike began on October 25,
1990, most newsstands in the subway and commuter train stations
operated by defendants offered The Daily News for sale. Since
the strike, most of these newsstands have stopped selling The
Daily News. Plaintiff's verified complaint states that direct
sales of The Daily News through the use of hawkers is
plaintiff's only viable means of distributing the newspaper in
On November 28, 1990, plaintiff and the MTA entered into two
agreements, described as "permits," allowing plaintiff's
"hawkers" to sell The Daily News at designated locations in the
subway and train systems. One permit authorized sales by no
more than three hawkers at each of 43 Long Island Rail Road and
15 Metro-North commuter train stations, but not within 100 feet
of any newsstand selling The Daily News. The second permit
authorized sales by no more than three hawkers at each of 120
subway stations, provided sales were made within 10 feet of a
newsstand, newspaper rack, or newspaper vending machine not
selling The Daily News. Both permits could be terminated by
either side upon 48 hours' written notice or by the MTA upon
less than 48 hours' written notice "in the event of an
On the day after defendants granted the permits to plaintiff,
representatives of several transportation workers' unions,
including intervenor Local 100, informed defendants that the
presence of hawkers selling The Daily News in the transit
system would be likely to disrupt transportation services and
create safety risks for MTA employees and riders. Defendants
have submitted affidavits describing telephone conversations
with union leaders and copies of letters and telegrams received
from union leaders. According to the affidavits, officials of
defendants received the following communications before the
permits were revoked:
(1) Gary Dellaverson, Director of Labor
Relations for the MTA, states that an attorney
representing the AFL-CIO told him that if the MTA
continued to allow The Daily News to be sold
through hawkers, "MTA should expect `trouble'."
Dellaverson Affidavit, ¶ 3.
(2) Dellaverson states that Damaso Seda, the
Secretary Treasurer of Local 100, telephoned him
"to express the union's [Local 100's] anger at
allowing MTA to be in the middle of The Daily News
strike. He said he could not guarantee what his
members will do, that this was a very violent
strike, and that he feared for the safety of his
members and MTA passengers and that he was
instructing his members to take whatever steps are
necessary to insure his members own safety." Id., ¶
(3) Dellaverson states that Barry Feinstein, a
member of the MTA's Board of Directors, as well as
the President of the New York State Public
Employee Conference and of Local 237,
International Brotherhood of Teamsters, which
represents 20,000 municipal employees, "telephoned
[Dellaverson] to register his dissatisfaction with
the presence of the hawkers in the systems, and
said that MTA should expect `plenty of trouble.'"
Id., ¶ 5.
(4) Donald Nelson, Executive Vice President of
Metro-North, states that he had a series of
telephone conversations with James Phelan, General
Chairman of the United Transportation Union, which
represents Metro-North conductors and trainmen.
Nelson states that Phelan told him that officials
of the striking Daily News unions had communicated
to him "that there would be handbilling and
picketing of Metro-North property by the strikers
if hawkers sold the Daily News." Nelson states that
Phelan said "his members would not cross those
lines and would not report for work." Nelson
Affidavit, ¶¶ 3-4.
(5) Phelan sent a letter to defendant Kiley
which stated that the presence of hawkers in
Metro-North stations "is an insult to every MTA
employee who is a union member and deliberately
puts MTA employees and the traveling public at
great personal risk. Should MTA's action result in
danger or potential threat of danger to our
members, the UTU is prepared to defend a member's
right to decline to enter the area involved."
Id., Exhibit C.
(6) Chris Silvera, Secretary-Treasurer of Local
808 of the International Brotherhood of Teamsters,
which represents Metro-North maintenance of way
workers, sent Nelson a letter and a telegram which
stated that "Local 808 is totally and
unequivocally opposed" to MTA's decision to grant
the permits to The Daily News, that The Daily News
strike "has been marred/enforced with 860
documented acts of violence," and that "[i]n the
event that striking picketers are present around
Grand Central Terminal we will inform our members
of their rights under the Federal Rail Safety Act
not to enter the property." Id., Exhibits D, E.
(7) Andrew Paul, Assistant Director of Labor
Relations for Metro-North, states that he had
three telephone conversations with James Phelan.
Phelan told Paul that he had been informed by
officials of the striking Daily News unions that
"supporters of striking employees of the Daily News
would begin handbilling at Metro-North stations,"
which would "confuse Metro-North employees who
would very likely perceive this handbilling by
strike supporters as a picket line which they might
well not cross." Paul Affidavit, ¶¶ 2, 4.
(8) Anthony Conti, a Labor Relations
Representative for Metro-North, stated that Howard
Dash, Regional Chairman of United Transportation
Union-Yardmasters, which represents Metro-North
yardmasters, told him during a phone conversation
that "due to the violent nature of the Daily News'
strike should there be any picket lines he would
instruct his members that pursuant to `a ...
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