held two different types of hearings. On the one hand, following the notorious fire at a Bronx social club that resulted in the death of over eighty people, a City Council committee conducted a vigorous full-scale investigation and public inquiry, that resulted in strong criticism of New York City's regulation of clubs. In contrast, other hearings have been convened to provide fora for discussion and public comment upon issues of public concern. According to the City Defendants, the hearing on Resolution 910 falls into this latter category of less formal inquiries.
Pursuant to City Council rules, a public hearing must be held before a committee may vote on a resolution.
If a committee then chooses to vote on the resolution, and a majority of the committee's members approves the resolution, it is then presented to the full City Council for consideration, where it may or may not be approved. A proposed resolution may be amended at numerous stages in the process. In contrast to a bill for a local law, no mayoral approval is required for a resolution: once the City Council passes the resolution, no further activity is required. In addition, unlike a local law, which has binding force and effect, a resolution such as that concerning Fisher is merely hortatory, with no binding effect.
The purpose of a preliminary injunction is "to protect plaintiff from irreparable injury and to preserve the court's power to render a meaningful decision after a trial on the merits." Wright & Miller, 11 Federal Practice and Procedure § 2947; Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). At the hearing on Fisher's application for a preliminary injunction, the parties agreed that no further evidence would be presented at any ultimate trial on the merits. The Court granted their request that the trial on the merits be consolidated with the preliminary injunction hearing, as prescribed by Fed. R. Civ. P. 65(a)(2). See, e.g., McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544, 1545 (2d Cir. 1991). Thus, the trial on the merits has already been held, and Fisher's application for a preliminary injunction is now treated as a request for the permanent injunctive relief that Fisher sought in its Complaint.
Fisher asks this Court to enjoin City Defendants under 42 U.S.C. § 1983 from proposing, sponsoring, holding a hearing on, or ratifying Resolution 910. Fisher contends that such actions on City Defendants' part would deprive Fisher of its federal right to engage in collective bargaining free from state or municipal intrusion, as the Supreme Court has explained that right in Lodge 76, Int'l Association of Machinists and Aerospace Workers v. Wisconsin Employment Relations Commission, 427 U.S. 132, 140, 96 S. Ct. 2548, 2553, 49 L. Ed. 2d 396 (1976) ("Machinists"), and its progeny, including Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 614, 106 S. Ct. 1395, 1398, 89 L. Ed. 2d 616 (1986) ("Golden State I").
The City Defendants and the Union have offered a wide range of reasons why the Court should not issue the requested equitable relief, including legislative immunity, First Amendment rights, and lack of ripeness. Moreover, they have drawn compelling distinctions between this case and those labor law preemption cases on which Fisher relies, most notably New York News, Inc. v. State of New York, 745 F. Supp. 165 (S.D.N.Y. 1990). However, the Court need not address any of these issues at this time for the simple reason that Fisher has failed to show that it would suffer irreparable injury if the Court denied its application for injunctive relief.
It is well established that a party seeking a permanent injunction must demonstrate "the absence of an adequate remedy at law and irreparable harm if the relief is not granted." N.Y. State National Organization for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989), cert. denied, 495 U.S. 947, 110 S. Ct. 2206, 109 L. Ed. 2d 532 (1990). Fisher has not carried its burden of showing that it will suffer irreparable harm if the Defendants are not permanently enjoined from proposing, sponsoring, holding a hearing on, or ratifying Resolution 910. Consequently, its application for permanent injunctive relief must be denied.
Fisher contends that the consideration of Resolution 910 by the City Defendants constitutes impermissible intrusion by a municipal government into the collective bargaining process. At oral argument, Fisher conceded that a statement by the City Council members that they opposed Fisher's negotiation tactics and stance would not be unlawful. It also agreed that the City Defendants could conduct an investigation into a complaint about the safety of its products. Fisher's position, however, is that any type of hearing by the City Defendants to express an opinion on the collective bargaining process would be impermissibly coercive, and irreparably harmful, by raising the possibility of economic sanctions.
Nevertheless, Fisher has failed to introduce competent evidence sufficient to convince the Court that its faces irreparable harm. It has not shown that the City Defendants are forcing it to lose business or to capitulate to the Union, or that they will force it do so. For example, Fisher was unable to identify even one customer that had expressed concern over the proposed resolution.
Fisher also argues that the legislative process must be stopped now because the very passage of Resolution 910 would perfect a solicitation of an illegal boycott that would irreparably harm Fisher. However, the legislative proceedings that pertain to Resolution 910 are still at an embryonic stage. Resolution 910 may undergo substantial modification before passage or it may not be passed at all.
Even if did pass, Resolution 910 would merely render advice to agencies -- advice which, the City Defendants tell us, the agencies would be free to ignore. Fisher has failed to introduce evidence as to how irreparable injury would follow the passage of a hortatory resolution. For example, Fisher has offered no evidence that any city agencies would follow such advice, and could not identify any city agencies that had stopped doing business with it as a result of the proposal of Resolution 910. For that matter, Fisher introduced no evidence on the portion of business that it does with city agencies. Fisher's counsel simply noted that after the Boston City Council passed a resolution nearly identical to Resolution 910, a Boston newspaper article reported that a hospital administrator there agreed with the boycott.
There is also no support for Fisher's contention that a legislative hearing would be coercive because it would present Fisher with the Hobson's choice of not defending itself, or of being forced to protect its interests at a hearing by disclosing its collective bargaining stance. Fisher, however, has failed to demonstrate that its absence from the hearing would necessarily result in the passage of Resolution 910, or that even if Resolution 910 did pass, irreparable harm would follow. Further, there is no merit to Fisher's suggestion that if it attended a hearing, it would be forced to reveal confidential bargaining goals and strategies that would compromise its collective bargaining position in abrogation of its federal rights. Even if the hearing did turn to the question of Fisher's negotiation strategy, which may or may not happen, Fisher would not be forced to reveal anything. The City Defendants have expressly disclaimed their subpoena powers for the hearing. Unlike the enjoined proceedings in Daily News, in which the parties would have been "compelled to produce documents and testify under oath setting forth their bargaining positions," 745 F. Supp. at 169, the contemplated hearing in this case would not be coercive. It will neither "disrupt the negotiations" nor "impact upon the positions of the parties." 745 F. Supp. at 160. Thus, Fisher has made no showing that its non-coerced attendance at a hearing held in conjunction with a legislature's consideration of a non-binding resolution would constitute such impermissible governmental intrusion as to result in irreparable harm.
In sum, Fisher has not convinced the Court that the consideration of Resolution 910 by the City Defendants is coercive in any way. Fisher has simply failed to demonstrate that it will suffer irreparable harm, and absent such proof, injunctive relief cannot issue. N.Y. State National Organization for Women v. Terry, 886 F.2d at 1362. This is not to say that Fisher may never have a meritorious claim against the City Defendants. Indeed, some of Fisher's suggestions regarding Resolution 910 are quite troubling. For example, Resolution 910 states at the outset that "the quality of the products now offered by Fisher to medical institutions of the City of New York is compromised by the company's use of inexperienced replacement workers." Yet, counsel for the City Defendants admitted during oral argument that the Committee had received no complaints from Fisher's customers questioning the quality of its products. Fisher's observation that Resolution 910 may erroneously and unjustifiably raise the specter of a health and safety threat in order to act as an economic bludgeon is indeed alarming. The Court, however, cannot address this concern in view of the scanty record assembled so far and in light of the inchoate character of the resolution.
For the reasons stated above, the Union's motion to intervene as of right is GRANTED. Fisher's motion for a preliminary injunction, as well as its current request for permanent injunctive relief, is DENIED and the Complaint is dismissed. Finally, because the Court concludes that there is little likelihood of irreparable harm to Fisher if the City Defendants continue to consider Resolution 910 in accordance with the normal legislative procedures, Fisher's request for a Fed. R. Civ. P. 60(c) injunction pending appeal is DENIED.
Dated: New York, New York
January 29, 1993