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ISRAEL v. ABATE

December 11, 1996

STANLEY ISRAEL, as President of the Correction Officers Benevolent Association, Inc., and THE CORRECTION OFFICERS BENEVOLENT ASSOCIATION, INC., Plaintiffs, against CATHERINE M. ABATE, as Commissioner of the Department of Correction of the City of New York, THE NEW YORK CITY DEPARTMENT OF CORRECTION, ROBERT LA PENE, Acting Commissioner for Labor Relations for the New York City Department of Correction, RICHARD YATES, Assistant Commissioner for Labor Relations for the New York City Department of Correction, JAMES HANLEY, Commissioner of the Office of Labor Relations of the City of New York, MICHAEL McDONALD, Assistant Commissioner of the Office of Labor Relations of the City of New York, and THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983, plaintiffs Stanley Israel and the Correction Officers Benevolent Association, Inc. ("COBA") bring the instant action for declaratory judgment, seeking to enjoin defendants from prohibiting plaintiffs from posting and distributing union fliers at the Control Building of the Rikers Island Correctional Facility in New York ("Rikers"). Pursuant to Federal Rule of Civil Procedure 56, defendants move and plaintiffs cross-move for summary judgment. For the reasons that follow, defendants' motion for summary judgment is granted, and plaintiffs' motion for summary judgment is denied.

 BACKGROUND

 The Department of Corrections of the City of New York (the "DOC") operates ten correctional facilities on Rikers Island in Queens, New York ("Rikers"). Defendants' Statement of Undisputed Facts Pursuant to Local Rule 3(g) ("Defs.' 3(g) Stmt.") P 1. Plaintiff COBA is a labor union which represents approximately 10,000 corrections officers of the DOC. Id. PP 10, 14; Plaintiffs' Statement of Undisputed Facts Pursuant to Local Rule 3(g) ("Pls.' 3(g) Stmt.") P 1. COBA is the largest of approximately twenty competing unions which represent DOC employees. See Deposition of Robert LaPene (undated), attached at Exh. H to Plaintiffs' Notice of Cross-Motion ("Pls.' Not. Mot.") at 7. At all times pertinent, Stanley Israel was president of COBA. Pls.' 3(g) Stmt. P 1. Philip Seelig served as Special Counsel to COBA, and Frank Ayala acted as a lobbyist for COBA. Id. PP 2, 5.

 In March 1993, COBA scheduled a mail ballot membership vote for April 1993. Pls.' 3(g) Stmt. P 5. The vote concerned the retention, at specified salaries, of Philip Seelig as COBA Special Counsel, and Frank Ayala as a COBA lobbyist. Defs.' 3(g) Stmt. P 15. The COBA leadership of ten board members and forty delegates, including Israel, supported the continued employment of both men. Id. P 17.

 Prior to March 8, 1993, fliers, which incorrectly stated that unmailed ballots would be counted as "yes" votes, were distributed to corrections officers. Defs.' 3(g) Stmt. P 20. In response, on March 8, 1993, a COBA officer created and sent the DOC Office of Labor Relations two single-page fliers which informed union members that they must mail in their ballots in order to have their votes counted, and urging a "yes" vote on the ballot issue. Id. P 19; Pls.' 3(g) Stmt. P 18. The fliers in question appeared on COBA letterhead and are set forth in full at Appendix A attached hereto.

 Since Israel became president in January 1993, COBA has communicated to its membership by distributing or posting fliers on about thirty to thirty-five occasions. See Pls.' 3(g) Stmt. PP 1, 10, 31.

 Article XXV of the collective bargaining agreement between COBA and New York City governs the posting of union literature on DOC facility bulletin boards. Id. PP 26, 27. That provision provides:

 
The Union may post notices on bulletin boards in places and locations where notices usually are posted by the Employer for employees to read. All notices shall be on Union stationery, shall be used only to notify employees of matters pertaining to Union affairs, and shall not contain any derogatory or inflammatory statements concerning the City, the Department, or personnel employed by either entity.

 Pls.' Not. Mot. at Exh. A.

 Since January 1993, COBA has also hand distributed fliers on numerous occasions by passing them out in the Rikers Island Control Building, on the Queens side of Rikers Island, and in the locker rooms of individual buildings on Rikers. Pls.' 3(g) Stmt. P 10. COBA contends that handing out fliers is the most effective means of communicating with its membership. Id. P 9. In practice, COBA has always sent a copy of the flier to be distributed to the DOC Labor Relations Office. Id. P 11. However, COBA contends that the Office of Labor Relations was entitled to receive a copy of the fliers intended for distribution but not to deny permission for distribution. Id. P 11.

 
Distribution or posting of literature or soliciting of petitions or any other similar activities on departmental premises is prohibited unless provided for by collective bargaining agreement and/or departmental policy and procedure. However, certified or designated employee organizations upon notification to the Department's Office of Labor Relations, who will advise the Rikers Island Security Division, shall be permitted to distribute official union material at the Control Building. Such distribution shall be accomplished so that minimum disruption and distraction is created in the area.
 
Any requests for exceptions to this prohibition as it relates to unions and their members shall be cleared through the Office of Labor Relations whose decision will be based upon applicable law, policy and procedures.
 
At no time shall materials be distributed within the institutions except as provided by memorandum [relating to COBA election campaigning] or at authorized union meetings.

 Id. at Exhs. E, F, G, and H.

 Since January 1993, COBA has also used various other methods to disseminate voting information to its members. On several occasions, COBA placed advertisements in newspapers, such as the New York Post and the Daily News, held meetings to discuss specific issues with corrections officers, issued press releases, held "media events," and conducted mass mailings. Defs.' 3(g) Stmt. PP 36, 40, 41, 43, 44. On several occasions, COBA was allowed to utilize DOC teletype facilities. Id. P 46; Pls.' 3(g) Stmt. P 13. In addition, COBA has held monthly membership meetings and other meetings in common areas of individual correctional facilities such as chapels and auditoria. Defs.' 3(g) Stmt. PP 42, 43.

 With regard to the March 1993 vote, Israel submitted the two fliers to the DOC Office of Labor Relations, indicating that he wished to hand-distribute these fliers to Corrections Officers at the DOC Control Building on Rikers. Pls.' 3(g) Stmt. P 15. The Control Building is the first building after crossing the Francis R. Buono Bridge onto Rikers Island from Queens. Defs.' 3(g) Stmt. P 3. In addition, the Control Building is the sole means of pedestrian access by uniformed DOC employees onto Rikers. Id. P 3. The Control Building is also the central area through which all DOC employees and any law enforcement officials conducting business on Rikers Island must pass. *fn1" Defs.' 3(g) Stmt. P 4.

 Each Corrections Officer seeking entry undergoes an identity check as well as a security check in order to prevent the smuggling of contraband onto Rikers. Id. P 7. At the Control Building, each officer is required to produce his shield and identification and to allow any bags to be searched by security officers. Id. P 7. The same procedure is repeated upon exit from Rikers Island through the Control Building. Id. P 7. During a typical three-shift day, a total of about 4,500 corrections officers undergo these security checks. Id. P 6. The searches are concentrated around the three daily shift changes. Id. P 6. For these reasons, the DOC has implemented strict security measures to ensure efficient functioning at the Control Building. Id. PP 7, 8.

 Citing security concerns, as well as a policy of discouraging unrestricted distribution of materials in the area, on March 8, 1993, the DOC Office of Labor Relations denied COBA permission to distribute the two proposed March 1993 fliers at the Control Building. *fn2" Defs.' 3(g) Stmt. PP 12, 23, 26. In support of its decision, the DOC pointed to the fliers' alleged "inflammatory and inaccurate contents." Id. P 24. Specifically, the DOC objected to the portion of the second flier which stated that, "the administration would like to take away [Corrections Officers'] off-duty guns." *fn3" Id. P 24. The DOC reasoned that rescinding such privileges would most likely have been met with great disfavor by the Correction Officers and could have contributed to operational instability or even labor unrest among Corrections Officers, which in turn would pose a security risk at a highly sensitive place such as the Control Building. *fn4" Defs.' 3(g) Stmt. PP 10, 24. Plaintiffs contend that this was the only time that the Office of Labor Relations disallowed COBA from posting or disseminating written materials. Israel Dep. at 26, 29.

 Following this decision by the DOC, Israel did not direct that either flier be hand-distributed on Rikers. Defs.' 3(g) Stmt. P 27. Instead, COBA mass-mailed fliers to all its members urging a "yes" vote. Id. P 50. COBA leadership also held several meetings in common areas on Rikers to advocate its position and discussed the ...


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