and hung up the telephone. Lunding Aff. P 14; Affidavit of Dale Steven Johnson dated November 18, 1993 ("Johnson Aff.") PP 2-5.
The message disseminated by Local 2320 instructing its members to send facsimiles to Cleary Gottlieb also announced plans for what was described as "Breakfast at Cleary Gottlieb," for which Local 2320 directed "all members" to appear at the firm's offices at 8:30 a.m. on Tuesday, November 23, 1993. See Lunding Aff. Ex. D. That exhibit supports an inference that another attempt to disrupt the plaintiff's business on its property will occur at that time.
As a consequence, plaintiff Cleary Gottlieb brought this action on November 18, 1993 in New York Supreme Court. Defendants removed this action to federal court on November 22, 1993. This Court promptly scheduled a hearing on plaintiff's emergency application for a temporary restraining order and a preliminary injunction for 11:30 a.m. on November 22, 1993 and directed plaintiff to notify counsel for the defendants of the time of that hearing. Plaintiff pro se, represented by one of its partners, George Weisz, Esq., having advised the Court that it notified counsel for defendants of the hearing at 10:12 a.m., and no person having authority to represent defendant having appeared at 11:30 a.m., the Court indicated that it would grant the plaintiff's request for injunctive relief and ordered the plaintiff to submit a proposed order to that effect by 3:00 p.m.
At 12:00 p.m. on November 22, 1993, after the conclusion of the hearing, counsel for defendants, K. Dean Hubbard, Jr., Esq. ("Hubbard"), appeared. The Court heard Mr. Hubbard in chambers and related what had transpired, whereupon Mr. Hubbard submitted responsive papers, to wit a Memorandum of Law and the Affidavit of K. Dean Hubbard, Jr., Esq. dated November 22, 1993 ("Hubbard Aff.") and the Affidavit of Scott M. Sommer dated November 22, 1993 ("Sommer Aff."), which the Court reviewed in their entirety, and further represented to the Court that no conduct of the sort feared by Cleary Gottlieb would take place.
Upon reviewing all the papers and affidavits submitted by both parties in connection with plaintiff's application for injunctive relief, the Court has concluded that such assurances of counsel are insufficient security to protect plaintiff against the kind of conduct that took place on April 18, 1991 and on November 17, 1993, and that may take place tomorrow November 23, 1993. It follows that injunctive relief is appropriate for the following reasons.
First, the injunctive relief Cleary Gottlieb seeks, to wit preventing any representatives of Local 2320 from occupying the premises of the firm, is not conduct which is in any way protected by any constitutional right, nor is it conduct properly permissable as part of any ongoing labor dispute. It therefore may be properly enjoined, notwithstanding the prohibitions against injunctive relief ordinarily applicable in a labor context. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959).
Furthermore, to the extent that the defendants have a protected interest in communication with Lunding at Cleary Gottlieb, that right is subject to reasonable time, place and manner restrictions and does not permit conduct of the sort that occurred on April 18, 1991 and on November 17, 1993, which is geared toward disruption of the business activities of Cleary Gottlieb and as such constitutes illegal and improper harassment. It follows that Cleary has at the very least demonstrated a likelihood of success on the merits and irreparable injury with respect to the conduct for which it seeks injunctive relief. Moreover, even assuming, arguendo, that plaintiff has demonstrated only substantial questions going to the merits, the balance of hardships tips decidedly in Cleary Gottlieb's favor. This is especially true since the conduct sought to be enjoined is not constitutionally protected, and in any event, defendants have indicated that they do not intend to continue this conduct. Therefore, if this assertion is true, they will suffer no hardship as a consequence of this injunction.
For the reasons stated above, it is hereby
ORDERED that defendants Local 2320, Sommer and Barbara Small, and each of them, and their agents, employees and members and all other persons acting on their behalf or in concert with them, are preliminarily enjoined pendente lite from
(1) engaging in any misuse of telephones and facsimile machines by sending plaintiff Cleary Gottlieb or any partner or employee of Clearly Gottlieb, including but not limited to Christopher Lunding, more than a total of ten facsimile transmissions in any single day, or any facsimile transmission exceeding five pages in length; and
(2) trespassing on or physically occupying, or interfering with plaintiff's occupying, any part of the premises at One Liberty Plaza, New York City, or 405 Lexington Avenue, New York City, or any part of Cleary Gottlieb's offices within either of those buildings, and it is further