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LOCAL 32B-32J, SEIU, v. PORT AUTHORITY OF NY & NJ

July 25, 1996

LOCAL 32B-32J, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, For And On Behalf Of Its Members, and LOCAL 2, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, For And On Behalf Of Its Members, Plaintiffs, against PORT AUTHORITY OF NEW YORK AND NEW JERSEY, THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY POLICE, FRANK B. FOX, in his capacity as Acting Superintendent of Police of The Port Authority of New York and New Jersey, GENE CECCARELLI, in his capacity as Captain of the Police of The Port Authority of New York and New Jersey, CHARLES MAIKISH, in his capacity as Director and Chief Executive Officer of the World Trade Center, EDWIN MONTEVERDE, in his capacity as General Manager, Tenant Services, World Trade Center, THOMAS RUSH, in his capacity as Manager of the World Trade Center, KEN PHILMUS, in his capacity as Manager of the Port Authority Bus Terminal, BARBARA ANN DAVIS, in her capacity as Administrator of the Port Authority Bus Terminal, and PEARLINE WASHINGTON, in her capacity as Administrator of the Port Authority Bus Terminal, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Plaintiffs seek a preliminary injunction enjoining Defendants from interfering with their exercise of First Amendment rights at the World Trade Center Concourse ("WTC Concourse" or "Concourse") and the Port Authority Bus Terminal ("Bus Terminal"). Specifically, Plaintiffs ask the Court to: (1) increase the number of areas in which they are permitted to engage in First Amendment activity at the WTC Concourse and the Bus Terminal, as well as the number of persons permitted to conduct such activity in each area; and (2) order Defendants to refrain from harassing Plaintiffs or otherwise interfering with their efforts to engage in First Amendment activity.

 I. Factual Background

 A. Parties

 Plaintiff Local 32B-32J, Services Employees International Union, AFL-CIO ("Local 32") is a labor organization representing approximately 67,000 building service employees in New York City and its surrounding area. Plaintiff Local 2, Service Employees International Union, AFL-CIO ("Local 2") is a labor organization that represents approximately 1,200 window cleaning employees in the metropolitan New York area.

 The Port Authority does not directly employ any member of the Plaintiffs. However, at the World Trade Center, cleaning and maintenance contractors employ members of Local 32 pursuant to a collective bargaining agreement. Until February 29, 1996, a security guard contractor at the World Trade Center also employed members of Local 32 under a collective bargaining agreement. In addition, prior to January 15, 1996, the cleaning contractor at the Bus Terminal employed workers pursuant to a collective bargaining agreement with both Local 32 and Local 2.

 B. Procedural History

 On January 4, 1996, over 30,000 members of Local 32 went on strike at office buildings throughout New York City. In connection with this strike, representatives of Local 32 attempted to engage in First Amendment activity at the WTC Concourse and became embroiled in a dispute with the Port Authority over the access they could have to this facility. On January 17, Local 32 brought suit against the Port Authority and its officials at the World Trade Center, seeking to enjoin Defendants from interfering with their exercise of First Amendment rights at the WTC Concourse. However, the citywide strike ended on February 4 and Local 32 agreed to terminate all lawsuits related to the strike.

 Meanwhile, on January 15, 1996, the Port Authority implemented a cleaning contract at the Bus Terminal with a contractor that does not have a collective bargaining agreement with Plaintiffs. On or about March 1, 1996, the Port Authority also began contracting security services at the World Trade Center to a contractor that does not have a collective bargaining agreement with Local 32. In the wake of these two developments, Plaintiffs desired to engage in First Amendment activity at both the Bus Terminal and the WTC Concourse, and became involved in a dispute with the Port Authority concerning the access they could have to these facilities. On February 28, 1996, as the security services contract at the World Trade Center was about to go into effect, Plaintiffs brought this action. They sought a temporary restraining order mandating the same relief requested here. After the Court held a settlement conference, the parties reached a compromise and agreed to mediation. *fn2" When the mediation proved unsuccessful, Plaintiffs proceeded with this motion.

 C. The World Trade Center

 The WTC Concourse is a series of interlocking corridors providing access to the office buildings which comprise the World Trade Center. The WTC Concourse serves 80,000 persons who are employed by tenants and 50,000 others who visit the World Trade Center each day. Tr. 4/25 at 160. *fn3" The Concourse is used most heavily during the rush hours of 7:00 a.m. to 10:00 a.m. and 4:00 p.m. to 6:00 p.m. when commuters travel to and from the subway stations and commuter railway terminal located beneath the Concourse. During these periods, approximately 90,000 pedestrians use the Concourse. Id. at 160, 181. Problems of pedestrian safety and congestion are most severe during these hours. Such problems are critical in the event of an emergency, such as the bombing of the World Trade Center that occurred on February 26, 1993, or the discovery of a suspicious package or a major transportation delay. Id. at 173, 178.

 The World Trade Center's construction was completed in 1975. The original design did not adequately provide for the volume of pedestrian traffic the Concourse currently experiences. The current volume exceeds the design volume by approximately twenty-five percent. Tr. 4/25 at 166-67. Pedestrian traffic has increased over the past 20 years because of developments inside and outside of the World Trade Center, including the construction of 7 World Trade Center, the World Financial Center, and the growth of the Tribeca neighborhood. Tr. 4/25 at 157-58, 167.

 On January 14, 1988, the Port Authority issued rules governing the operation of both the WTC Concourse and the Bus Terminal. These rules do not set forth the locations where First Amendment activity may be conducted at the Concourse, nor the number of persons who may engage in such activity. See World Trade Center and Port Authority Bus Terminal, Revised Rules and Regulations, dated January 14, 1988, Ex. F to Pl. Ex. 8. In fact, until January 12, 1996, there were no written rules governing the exercise of free speech at the WTC Concourse. The parties dispute the extent to which First Amendment activity was permitted within the Concourse prior to that date, but agree that it was permitted at no more than four locations, with only one person allowed at each location.

 On January 12, 1996, Edwin Monteverde, the General Manager of Tenant Services at the World Trade Center, wrote Local 32's attorneys concerning restrictions on First Amendment activity at the Concourse. See Letter of Edwin Monteverde, Ex. C to Pl. Ex. 8. His letter indicated that the Port Authority was willing to permit First Amendment activity at six specified locations in the Concourse. The Port Authority would permit one person in each of four locations at all times the area is open to the public, except during rush hours. Five people would be permitted in each of two additional locations at the cross roads of the Concourse corridors, with two people permitted to display signs at each location. *fn4" See id. Finally, the letter noted that "we are willing to engage in discussions to address a request for additional access to the World Trade Center Concourse." Id.

 First Amendment activity at the WTC Concourse is now governed by rules promulgated by Charles Maikish, the Director of the World Trade Center, on February 15, 1996. See Regulations With Respect to Continuous Expressive Activity Directed at the Public In The World Trade Center, Pl. Ex. 6. These rules provide for the same access to the Concourse as was discussed in Monteverde's January 12 letter. Tr. 4/25 at 164, 180. *fn5" The Port Authority purportedly based these rules on a consideration of several factors, including: (1) the physical configuration of the Concourse; (2) pedestrian traffic; (3) security considerations after the February 26, 1993 bombing; (4) construction activities; (4) the cleaning and servicing of the building; and (5) the desires of people seeking to communicate to users of the Concourse. Tr. 4/25 at 179-80.

 Use of all the Concourse locations is granted on a first-come, first-served basis. No discretion is exercised by Port Authority personnel. A person who wishes to use a location must sign a log-in sheet for each location he or she wants to use on the day he or she wants to use it. See Pl. Ex. 6. The person is then assigned a gray two-inch by two-inch identification card that indicates the assignment of the area to that person. One person may log in on behalf of a group; in such cases, the person will be assigned identification cards for distribution to members of the group. Tr. 4/25 at 182, 188; Tr. 4/26 at 202, 207, 213-14, 219, 269-70; Pl. Ex. 6.

 The Bus Terminal is located between 40th and 42nd Streets and between 8th and 9th Avenues in Manhattan. It consists of two buildings, a North Wing between 41st and 42nd Streets, and a South Wing between 41st and 42th Streets. The Bus Terminal is used by at least 165,000 people each day, and is generally open to the public for 18 hours a day. *fn6" Between midnight and 6 a.m., however, only the North Wing Lower Bus Level is open for bus and passenger traffic. Tr. 5/3 at 9, 54.

 There are no written rules that designate the locations presently available for First Amendment activity at the Bus Terminal, or the number of persons permitted in each location. *fn7" However, as a matter of practice, the Port Authority has adopted very specific rules. During the 18 hours per day that the Bus Terminal is open to the public, First Amendment activity may be conducted by thirty-six people in a total of seven fixed locations. In the Main Concourse, six people are permitted in each of three locations, and two are permitted in one additional location. In the Suburban Concourse, six are allowed in each of two locations and four are permitted in one other location. Tr. 4/25 at 127-30; Tr. 5/3 at 21-24, 59-60. The seven fixed locations were selected as sites for First Amendment activity because they are close enough to pedestrian traffic to provide access to an audience, but are out of the direct paths of pedestrian traffic. Tr. 5/3 at 21-25. These locations are consistent with recommendations made in studies conducted in 1988 and 1990 regarding appropriate areas for conducting First Amendment activity directed at the public. Tr. 5/3 at 38, 69. *fn8"

 A person wishing to apply for space to conduct First Amendment activity at the Bus Terminal must fill out a permit request form. However, the form used at the Bus Terminal has been in existence since 1986 and is obsolete in certain respects. Although the form purports to list all of the locations available for First Amendment activity, it is no longer accurate. Certain areas have been shifted to accommodate changes in the structure of the Bus Terminal; positions at the Upper and Lower Bus Levels have been eliminated due to construction; and two additional areas have been added in the Main Concourse and Suburban Concourse. See Permit Request Form, Def. Ex. B.; Tr. 5/3 at 7, 10, 17-18. The total number of people who may engage in ...


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