author: STANLEY S. HARRIS, District Judge.

text:
    NATIONAL RAILROAD PASSENGER CORPORATION, Plaintiff, v. AMERICAN FEDERATION OF RAILROAD POLICE, INC., et al., Defendants.
    Civ. A. No. 85-696.
    United States District Court, District of Columbia.
    June 11, 1985.

      Harold Henderson, Jr., Christopher M. Klein, Joanna L. Moorehead, C. Ann Courtney, Washington, D.C., for plaintiff.
    Erick F. Larsen, Hauppauge, N.Y., Raoul L. Carroll, Washington, D.C., for defendants.
   MEMORANDUM OPINION

STANLEY S. HARRIS, District Judge.

This case now is before this Court on plaintiffs motion for judgment on the pleadings or summary judgment on its complaint and to dismiss defendant’s counterclaim, defendant’s opposition thereto and cross-motion for summary judgment, as well as on defendant's motion for a preliminary injunction and plaintiff’s opposition thereto.

The plaintiff, National Railroad Passenger Corporation (Amtrak), an intercity railroad passenger service, was organized pursuant to the Rail Passenger Service Act of 1970, 45 U.S.C. § 501 et seq. Accordingly, labor disputes must be handled in accordance with the Railway Labor Act. 45 U.S.C. § 546(b). The defendant, American Federation of Railroad Police, Incorporated (AFRP), is the recognized collective bargaining representative of Amtrak’s police employees.

On August 1, 1979, Amtrak and AFRP’s predecessor union executed a collective bargaining agreement establishing rates of pay, rules and working conditions for the police employees. That agreement was modified on December 16, 1982.

The underlying dispute in this case arises out of a disagreement between the parties regarding certain police work associated with the commuter rail operations of the relatively newly-created New Jersey Transit Rail Operations, Inc. (NJT). On January 1, 1983, NJT began operating its trains over the Northeast Corridor railroad lines owned by Amtrak between Trenton, New. Jersey, and Penn Station in New York City. This trackage right arises from a series of contracts between NJT and Amtrak entered into pursuant to Section 402(a) of the Rail Passenger Service Act, 45 U.S.C. § 562(a). The work force needed to operate NJT’s trains, including conductors, trainmen, engineers, police officers, and all other necessary personnel is provided by NJT. Additionally, the station located at Newark which previously was owned by Amtrak was purchased from it by NJT. NJT took title to the station on or about May 2, 1984.

The first objection to NJT operations came from AFRP in May 1984, when a grievance was filed with the Director of Labor Relations for Amtrak, alleging that the presence of NJT police officers on -the NJT commuter trains operating on Amtrak’s trackage amounted to a breach of the Amtrak/AFRP collective bargaining agreement. Numerous other grievances were filed by AFRP which raised the same alleged violation of Rule 4(A) of the collective bargaining agreement (scope clause). Rule 4(A), the clause of the collective bargaining agreement specifying the scope of the work which is to be performed by AFRP, states:

A. These rules shall govern the hours of service and working conditions of all employees below the rank of Captain engaged in the work of the craft and class of Police Officers and, except as specifically provided herein, all such work of said craft or class shall be performed exclusively by employees subject to the scope of this Agreement, regardless of time devoted to its performance.

Those grievances ultimately were deemed to be without merit by the Corporate Director of Labor Relations for Amtrak.

AFRP’s ultimate objection was raised as a result of two arrests made by NJT police officers while riding on NJT’s commuter trains on February 23 and 24, 1985. The suspects were taken off the trains at Newark and Elizabeth, New Jersey, respectively. AFRP, in accord with its earlier position, argued that the arrests, subsequent booking, and all other work incident to the arrests of those suspects was within the scope of Amtrak police work. Basically, AFRP’s position was that under the scope clause of the collective bargaining agreement, Amtrak police were entitled to ride NJT’s trains and perform police duties on them. Amtrak, adhering to its earlier conclusion, found AFRP’s allegations to be without merit. AFRP responded to this finding through the initiation of a “blue flu.” By the evening of February 27, 1985, numerous Amtrak police officers had called in sick, left work sick, and commenced picketing at various Amtrak facilities.

On February 27, 1985, anticipating picketing, Amtrak filed a verified complaint along with an application for a temporary restraining order and a motion for a preliminary injunction. At about 10:00 p.m. on February 27, this Court granted the plaintiff’s motion for a temporary restraining order on an ex parte basis. A hearing on the temporary restraining order was held on February 28, 1985, at which argument from counsel for all parties was heard. This resulted in the issuance of a temporary restraining order which prevented AFRP from inducing or engaging in any picketing, self help or disruptive behavior in any manner interfering with Amtrak’s business operations. On March 1, 1985, that Order was extended upon the consent of AFRP’s counsel. The plaintiff’s motion for a preliminary injunction was granted, without opposition, on March 26, 1985.

As noted, this case is governed by the Railway Labor Act. In applying that Act, the Court first must determine whether the underlying controversy in this case constitutes a “major” or a “minor” dispute. See Elgin, Joliet and Eastern Railway Co. v. Burley, 325 U.S. 711, 722-28, 65 S.Ct. 1282, 1289-92, 89 L.Ed. 1886 (1945). This determination dictates the proper administrative procedures that the parties must adhere to for resolution of the dispute as well as this Court’s authority to intervene in the controversy. Local 553, Transport Workers v. Eastern Air Lines, Inc., 695 F.2d 668, 674 (2d Cir.1983).

Basically, major disputes are those arising from the initial formation of a new agreement or from the negotiation process in attempting to alter the terms of an existing agreement. Elgin, Joliet and Eastern Railway Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945); Southern Railway Co. v. Brotherhood of Locomotive Firemen & Enginemen, 384 F.2d 323 (D.C.Cir.1967). Minor disputes, on the other hand, relate to the interpretation or application of an existing agreement.

AFRP’s argument seems to be that Amtrak’s sale of its Newark station to NJT, along with NJT’s recently acquired track-age rights over a portion of Amtrak’s Northeast Corrider, is a unilateral attempt by Amtrak to amend the terms of the existing collective bargaining agreement. Thus, AFRP argues that this dispute is major in nature. Amtrak counters by arguing that Rule 4(A) of the agreement does not give AFRP the right to perform work for third parties who happen to be on Amtrak’s property. Accordingly, asserts Amtrak, the police work performed by NJT personnel on NJT trains and at the Newark station does not violate Rule 4(A).

The law is clear that

where the railroad asserts a defense based on the terms of the existing collective bargaining agreement, the controversy may not be termed a “major” dispute unless the claimed defense is so obviously insubstantial as to warrant the inference that it is. raised with intent to circumvent the procedures prescribed by § 6 for alteration of existing agreements. [Southern Railway Co. v. Brotherhood of Locomotive Firemen and Enginemen, 384 F.2d 323, 327 (D.C.Cir.1967).]

The parties’ relationship is governed and defined by an existing collective bargaining agreement. It is a section of that agreement, Rule 4(A), that once defined, interpreted, and applied will determine the validity of AFRP’s claim. The very claim raised by AFRP is based on their expansive interpretation of that clause. Rule 4(A) makes no mention of AFRP’s right to perform police work on trains owned by carriers other than Amtrak which happen to be rolling on Amtrak trackage. Therefore, Amtrak’s reference to Rule 4(A) as a defense to its actions can hardly be said to be “obviously insubstantial.” It is clear that the dispute in this case relates to the interpretation and application of an existing agreement. Accordingly, the dispute is unquestionably minor in nature.

The grievance and arbitration procedures set out in the Railway Labor Act for minor disputes are mandatory. The Act places an enforceable obligation upon carriers and unions to settle all minor disputes through the grievance resolution procedure established in the Act. Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). The procedures to be followed require the parties to attempt settlement; failing in this, the dispute must be referred to the appropriate adjustment board or special board of adjustment (Public Law Board). 45 U.S.C. § 153(i). That adjustment board has exclusive jurisdiction to resolve the minor dispute; district courts may not adjudicate the merits of such issues. Local 553, Transport Workers v. Eastern Air Lines, Inc., 695 F.2d at 675. However, it is well within the district courts’ jurisdiction to issue an injunction, both to prevent strikes in order to preserve the minor dispute for the adjustment board’s consideration and as a method by which to compel compliance with the procedures established by the Railway Labor Act. Brotherhood of Locomotive Engineers v. Louisville & Nashville Railroad Co., 373 U.S. 33, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963); Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957). The anti-injunction limitations placed on federal courts by the Norris-LaGuardia Act, 29 U.S.C. §§ 101— 115, give way when, as in the instant case, injunctive relief is the only practical, effective means by which to enforce the duties imposed by the Railway Labor Act.

The Court finds that there is no genuine issue as to any material fact and that Amtrak is entitled as a matter of law to judgment on its motion for a permanent injunction. Fed.R.Civ.P. 56. The findings made by the Court in its March 26, 1985, Preliminary Injunction order remain true. The defendants, and each of them, are intent to and will engage in picketing and self-help in violation of the Railway Labor Act. The only way to prevent this occurrence is by an order continuing to enjoin such action. It is clear that without such an order such acts will occur causing immediate and irreparable injury, loss and damage, in the way of cancelled and delayed railroad service, to both Amtrak and the traveling public. There is no adequate remedy available at law and injunctive relief must be granted. Accordingly, plaintiffs motion for a summary judgment on its complaint, which seeks a permanent injunction, is granted. Fed.R.Civ.P. 56, 65; see also Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C.Cir.1958).

Lastly, the Court considers defendants’ motion for a preliminary injunction. That motion seeks to have the disciplinary proceedings brought by Amtrak against those participating in the February 27, 1985, strike stayed. The motion by defendants is based on their counterclaims as contained in their answer. Disciplinary proceedings against Amtrak police are governed by the collective bargaining agreement in accord with the Railway Labor Act. The method by which to institute such proceedings, to bring an investigation, and the rights of appeal are governed by the agreement. Accordingly, there is no question but that this dispute is minor. As such, the appropriate adjustment board has primary and exclusive jurisdiction over disciplinary matters between AFRP members and Amtrak. The propriety of the disciplinary charges must be decided, in the first instance, by the adjustment board; this Court is without jurisdiction to enjoin the disciplinary proceedings in the instant case. See Local 1477 United Transportation Union v. Baker, 482 F.2d 228 (6th Cir. 1973). Accordingly, AFRP’s motion for a preliminary injunction is denied.

An appropriate order accompanies this Memorandum Opinion.

ORDER

This matter is before the Court on cross-motions for summary judgment, and on defendants’ motion for a preliminary injunction and on plaintiff’s opposition thereto. For reasons stated in the accompanying Memorandum Opinion, filed by the Court this date, it hereby is

ORDERED, that plaintiff’s motion for summary judgment seeking a permanent injunction is granted. The defendants, and each of them, their lodges, divisions, locals, officers, agents, employees, and representatives and all persons acting in concert or participating with them are permanently enjoined from authorizing, calling, inducing, conducting, permitting, continuing in, or engaging in, any picketing, self-help, or disruptive behavior in a manner interfering with Amtrak’s business operations. It hereby further is

ORDERED, that defendants’ motion for a preliminary injunction is denied. It hereby further is

ORDERED, that the subject matter of this case is referred to the appropriate adjustment board for resolution of the underlying minor dispute. It hereby further is

ORDERED, that the case is dismissed.

SO ORDERED.


source: Caselaw Access Project

author: EDGAR, District Judge.

license: Public Domain

text:
    Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. LOCAL 25, SHEET METAL WORKERS, AFL-CIO, Defendant.
    No. Civ-1-84-642.
    United States District Court, E.D. Tennessee, S.D.
    June 12, 1985.
    John W. Gill, Jr., U.S. Atty., John C. Cook, Asst. U.S. Atty., Chattanooga, Tenn., for plaintiff.
    S. Del Fusion, Chattanooga, Tenn., for defendant.
   MEMORANDUM

EDGAR, District Judge.

This matter is presently before the Court on plaintiff’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This action is brought by plaintiff under the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq. (hereinafter referred to as the “Act” or “LMRDA”), and jurisdiction is conferred upon the Court by 29 U.S.C. § 482(b). Plaintiff, upon the complaint of Union member Parnell F. Spradley, Sr., asserts that the defendant Local 25, Sheet Metal Workers, AFL-CIO (hereinafter sometimes referred to as “Local Union”) conducted an election in violation of the Act’s requirement that members in good standing of a union have a right to be a candidate for union office, 29 U.S.C. § 481(e) (§ 401(e) of the Act), and that such violation may have affected the outcome of the election.

I. FACTS.

Parnell F. Spradley, Sr., is a member of defendant Local Union and the parent Sheet Metal Workers International Union. Spradley has been a member in good standing since 1945 and was an officer in the Local Union for a number of years. Spradley retired in March of 1982 but continued to pay full union dues until May of 1983. Thereafter, he paid a lower amount of dues for retired members. During his period of retirement, Spradley collected Social Security and a union pension. In December of 1983, Spradley returned to active employment and began to again pay full dues to his Local Union. After Spradley’s return to active employment, he wrote a letter to the International President inquiring about his eligibility to run for local office as Business Manager/Financial Secretary-Treasurer in June of 1984. In a series of letters, Spradley was informed that the President’s interpretation of Article 12, Section 3 of the International Union’s Constitution was such that a retired member was no longer eligible to run for local union offices even if the individual returned to active employment. Spradley was declared ineligible to run for office. An election was held; Spradley protested and exhausted his internal union remedies before requesting the Department of Labor to investigate the charge of unfair denial of the right to run for office. The relevant section of the International Union Constitution forbids a retired union member on pension from running for union office.

II. ANALYSIS

The LMRDA seeks to insure free and democratic elections in labor unions. Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492, 496, 88 S.Ct. 1743, 1746, 20 L.Ed.2d 763 (1968). The Act allows unions freedom to conduct their internal affairs as long as they are in compliance with the overall goal established by Congress of insuring fair and democratic representation. Section 401(e) of the Act addresses the issue of qualifications for elective union office ■ and, generally, requires only that a member be in good standing. There is no dispute as to the facts. The sole issue in this case is whether the interpretation of the Union’s Constitution by the President of the International Union that a person returning to active employment after retirement is disqualified for a union office is reasonable and sustainable under the LMRDA.

Summary judgment may be granted in the absence of any genuine issue of material fact. Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. dismissed 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). However, before a summary judgment may be granted in this case it must be shown: (1) that a violation of the Act occurred, and (2) that the violation may have affected the outcome of the election. Marshall v. Office and Professional Employees Union, Local 2, 505 F.Supp. 121, 122 (D.C.D.C.1981).

While Congress sought to avoid unnecessary intervention in union affairs, this concern was balanced by the express policy of the Act to “protect the public interest by assuring that union elections would be conducted in accordance with democratic principles.” Wirtz, 391 U.S. at 496, 88 S.Ct. at 1746. The Act provides that members in good standing are eligible to run subject to the provisions of § 504 of the LMRDA, a section inapplicable in the present matter, and to “reasonable qualifications uniformly imposed ...,” 29 U.S.C. § 481(e).

The Secretary of Labor has expanded on this provision, declaring in regulations promulgated under the statute that “qualifications ... be specific and objective. They must contain specific standards of eligibility by which any member can determine in advance whether he is qualified to be a candidate.” 29 CFR § 452.53 (1984). The term “retired,” by defendant’s own admission, is ambiguous.

In the present matter, the Local Union argues that the exclusion of formerly retired members is a reasonable qualification for office and one that is uniformly imposed upon all members. While the typical unreasonable qualification is one that significantly curtails the number of individuals who might run for office, see Donovan v. Local Union No. 120, Laborers International Union of North America, AFL-CIO, 683 F.2d 1095, 1103 (7th Cir.1982), there is no per se rule that a test based on numerical impact is the only means of ascertaining whether a rule is reasonable. Rather, qualifications must be tested in light of the congressional desire to insure free and democratic elections in unions. Id.; see also Donovan v. Sailors’ Union of the Pacific, 739 F.2d 1426, 1429 (9th Cir.1984).

Article 12, Section 3 of the International Union’s Constitution purports to disqualify retired members of a union from holding elective office. The provision makes no mention that it applies to members who, in essence, “unretire” by virtue of their returning to the work force. Defendant, though, submits documents from its General Executive Committee, in the form of correspondence to Spradley, which state that the Union’s inability to distinguish between individuals absolutely retired and individuals who are working but still entitled to retirement benefits by virtue of dollar limitations or other similar measures, justifies a sweeping rule which excludes all retired members from holding office.

Defendant cites for support recent cases upholding rules requiring individuals to be “working in the trade” in order to be eligible for nomination or election to office. These cases are inapposite and actually militate in favor of Spradley in the present case, who, at the relevant time, had returned to active employment, worked full time, and paid full union dues. See Donovan v. Laborers Local 427, 113 LRRM 3444 (N.D.Iowa 1983).

The defendant asserts that retired members of a union have the potential of losing interest or concern about the state of union affairs and, therefore, are less likely to provide good leadership for the union. Yet, the goal of the LMRDA is to permit the union membership to determine whether a candidate is a good leader. In Local 3489, United Steelworkers of America v. Usery, 429 U.S. 305, 97 S.Ct. 611, 50 L.Ed.2d 502 (1977), the Supreme Court analyzed the impact of a mandatory attendance rule for union members seeking to be elected to office. The Supreme Court found that while over 600 members were in good standing, that is, they had paid their dues and fulfilled other qualifications pertaining to membership, 96.5% of these members were ineligible to run for office for failing to meet the attendance rule. The union in Local 3489 asserted that the attendance rule was necessary to insure the election of leaders who were knowledgeable about union affairs. The Supreme Court’s answer was simple and succinct:

“As for assuring the election of knowledgeable and dedicated leaders, the provisions of the LMRDA express a congressional determination that the best means to this end is to leave the choice of leaders to the membership in open democratic elections, unfettered by arbitrary exclusions.” Id. at 312.

Earlier the Supreme Court addressed the issue of the capability of union members to distinguish between qualified and unqualified candidates. The Supreme Court noted that the congressional purpose was modeled after the assumptions governing the general political system, and the court declared that a union rule, in this case one requiring that an individual have held some office previously in order to be elected to a senior union office, did not serve a beneficial purpose because:

It assumes that rank and file union members are unable to distinguish qualified from unqualified candidates for particular offices without demonstration of the candidate’s performance in other offices. The Congress’ model of democratic elections was political elections in this country, and they are not based on any such assumption. Rather, in those elections the assumption is that voters will exercise common sense and judgment in casting their ballots. Local 6 made no showing that citizens assumed to make discriminating judgments in public elections cannot be relied on to make such judgments when voting as union members. Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492, 504, 88 S.Ct. 1743, 1750, 20 L.Ed.2d 763 (1968).

The statute clearly mandates a rule that makes sense, a rule that aspires to the overall purposes of the Act of insuring free and democratic elections. Factors considered in testing a rule include:

1. The relationship of the qualification to the legitimate needs and interests of the union;
2. The relationship of the qualification to the demands of union offices;
3. The impact of the qualification, in light of the congressional purpose of fostering the broadest possible participation in union affairs;
4. A comparison of the particular qualifications with the requirements for holding office generally prescribed by other labor organizations; and
5. The degree of difficulty in meeting a qualification by union members.

29 CFR § 452.36(b) (1984).

Typically, reasonable provisions will include mandatory, though not excessive, periods of prior membership and continued good standing based on the punctual payment of dues. The rules usually upheld are those which conform to this concept of good standing. See 29 CFR § 457.37 (1984). The emphasis in the statute and regulations is that a member be in good standing and this determination is made with reference to the statute, rather than to union rules. See Donovan v. United Counties Carpenters District Council, 561 F.Supp. 791, 795 (N.D.Ohio 1983), aff'd 735 F.2d 1363 (1984); see also 29 CFR § 1452.50 (1984).

The Court finds as a matter of law that the Union’s interpretation of its Constitution so as to make retired members ineligible, even though they may have returned to active employment paying regular union dues, imposes an unreasonable qualification for one to qualify as a candidate for union office. While the Court cannot address the fourth and fifth factors above based on this record, the Court finds this unnecessary since the rule is strongly at odds with the purpose of maintaining open and democratic elections. The cases are clear that union members are the best judges of a candidate’s qualifications, Sailors’ Union, 739 F.2d at 1429-30, and, in the absence of proof that the requirement bears any relationship to the demands of office, the rule as interpreted cannot stand.

The interpretation of the union constitutional provision violates § 401(e) of the LMRDA. Not being a reasonable qualification, the rule as applied is declared void. There being no other reason for disqualification, the Court further determines that the disqualification of Spradley may have affected the outcome of the election, especially in light of his previous tenure as an officer of the Local Union. Therefore, the Local Union is instructed to conduct new elections under supervision of the plaintiff in accordance with the dictates of the order entered simultaneously herewith, permitting the candidacy of all union members in good standing under the explicit provisions of union by-laws and rules. The plaintiffs motion for summary judgment is granted.

ENTER.

      . Constitution and Ritual, Sheet Metal Workers’ International Association and Affiliated Local Unions, State, District and Provincial Councils, Article Twelve (12), Local Union Officers, Business Managers, and Business Representatives, Section 3, Qualifications, revised and amended by authority of the 36th General Convention, 1982:
      "[N]o member shall be eligible to nomination, election, or appointment, nor shall he be permitted to serve as an officer, business manager, business representative, delegate, trustee or other representative of any affiliated local union unless (a) he is paying the full dues levied by such local union, (b) such dues and other obligations due the local union and this Association are paid in advance for the current month and are properly recorded on official receipts in his possession, and (c) he has established a record of continuous good standing in the local union in which he is a candidate for á period of not less than three (3) consecutive years immediately preceding his nomination, appointment or election ... nor shall he be eligible to nomination, election or appointment or permitted to serve if he is retired on pension under the provisions of the Social Security Act or Railroad Retirement Act or on a pension from this Association or any local union or council thereof or from any pension plan negotiated with employers."

      . 29 U.S.C. § 481(e) (§ 401(e) of the Act): "In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 of this title and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice, without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof.” (emphasis added)


text:
    Billy M. CAMPBELL, Plaintiff, v. TENNESSEE VALLEY AUTHORITY, the Board of Directors of Tennessee Valley Authority and the Equal Employment Opportunity Commission, Defendants.
    Civ. No. 1-83-565.
    United States District Court, E.D. Tennessee, S.D.
    June 12, 1985.

      Harry F. Burnette, Brown, Dobson, Burnette & Kesler, Wendell L. Payne, Chattanooga, Tenn., for plaintiff.
    Herbert S. Sanger, Jr., Gen. Counsel, Justin M. Schwamm, Sr., Asst. Gen. Counsel, Thomas F. Fine, A. Jackson Woodall, Knoxville, Tenn, Thomas L. Gray, E.E.O.C., Washington, D.C., for defendants.
   MEMORANDUM

EDGAR, District Judge.

By way of a complaint for mandamus plaintiff seeks to compel defendant Tennessee Valley Authority (hereinafter “TVA”) to comply with a decision issued by defendant Equal Employment Opportunity Commission (hereinafter “EEOC”) in which the EEOC found that the plaintiff Billy M. Campbell was entitled to specific relief because TVA had discriminated against him because of his age. This Court has jurisdiction pursuant to 29 U.S.C. § 633a(c) and 28 U.S.C. § 1361. The essential facts are not in dispute. This action is presently before the Court for consideration of TVA’s motion, on behalf of itself and its directors, for judgment on the pleadings; the EEOC’s motion to dismiss, and plaintiff’s motion for summary judgment.

This action concerns plaintiff’s efforts to be promoted within TVA’s Division of Power System Operations to the position of Transmission Systems Maintenance Specialist (Transmission Lines), SD-3. Plaintiff, who is employed by TVA as a maintenance lineman, learned of the opening for the position in June of 1978. After the position was announced, plaintiff and 21 other employees submitted formal applications for the position. The successful applicant for the position was Larry McPeake, a white male under age 40. At the time of his nonselection plaintiff, a white, was 48 years of age. Among the applicants that were not selected for the job was Walter Parks, a black, age 43. Subsequent to their nonselection both the plaintiff and Mr. Parks each timely filed administrative EEO complaints with TVA, alleging that their nonselection for the SD-3 position was based on age discrimination and race and age discrimination, respectively.

On August 25, 1979, an EEOC complaints examiner, after a hearing, recommended a finding that TVA had discriminated against plaintiff by reason of his age when it excluded him from further consideration for the position of Transmission System Maintenance Specialist, SD-3. One of the corrective actions recommended by the complaints examiner was that TVA re-conduct the selection process for the position without the discrimination against the plaintiff which, according to the examiner, had been present in the previous selection process. In the alternative it was recommended that TVA offer plaintiff an equivalent position or some less desirable position satisfactory to plaintiff and for which the agency believed him qualified. Plaintiff’s request for back pay was denied since plaintiff had not “demonstrated that he would have been awarded the Transmission System Maintenance Specialist position absent the agency’s reliance on a factor having an age-discriminatory effect.”

On December 26, 1979, a different EEOC complaints examiner found that the decision not to select Mr. Parks for the position was influenced by both his race and age. This examiner recommended that Parks be retroactively promoted to the Transmission System Maintenance Specialist position or a similar one.

On January 22, 1980, TVA sent letters to both plaintiff and Walter Parks constituting the “final agency decision” stating that it had accepted the complaints examiners’ findings regarding discrimination as to both plaintiff and Parks. TVA told both plaintiff and Parks that it was removing the successful applicant, Larry McPeake, from the job and repeating the selection process in a nondiscriminatory manner. On January 31, 1980, at the conclusion of the second selection process, Mr. Parks was chosen for the position and granted a retroactive promotion effective June 26, 1978. Mr. Parks currently holds the position at issue here. There is no allegation that the second selection process was in any way discriminatory.

Plaintiff appealed TVA’s “final agency decision” to the Commissioners of the EEOC pursuant to 29 CFR § 1613.231. On June 9, 1982, the EEOC found that the EEOC complaints examiner, who had handled plaintiff’s complaint, had committed two errors. First, the EEOC found that its complaints examiner improperly placed the burden on plaintiff to demonstrate that he would have been awarded the position absent the agency’s reliance on a factor having an age-discriminatory effect. Second, the EEOC found that the reconvening of a selection panel after a finding of discrimination was not a remedy in accord with Albemarle Paper Company v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), or the governing regulations. The EEOC stated: “To allow such to become an approved remedy other than under the most extraordinary of circumstances, would leave the door ajar allowing the potential for the entire process to be undermined and for innocent parties to be harmed in the process as has occurred in his case.” On this basis the EEOC found that the relief afforded plaintiff by both its own complaints examiner and by TVA in its “final agency decision” was improper, and TVA’s final agency decision was reversed. The EEOC ordered that plaintiff “be retroactively promoted to the date when the original selectee’s selection took affect [sic ] and he shall be entitled to other benefits as provided under 29 C.F.R. § 1613.-271(b)(1).”

On April 18, 1983, after TVA’s request that the EEOC reopen plaintiff’s case for further consideration was denied by the EEOC, TVA issued a supplemental decision in the form of a letter to the plaintiff regarding plaintiff’s relief. In this decision, which is dated April 18, 1983, TVA’s Director of Equal Opportunity Compliance found “that there is clear and convincing evidence that, although a discrimination existed at the time the selection was made, [plaintiff] would not have been selected even absent discrimination due to Mr. Parks’ superior qualifications. The Director decided that because only one Transmission System Maintenance Specialist (Transmission Lines) position existed at TVA, plaintiff was entitled to priority consideration for the position in question but not back pay. Thus, TVA refused to comply with the decision rendered on appeal by the EEOC.

On October 4, 1983, plaintiff received a letter from the EEOC indicating that it would take no further action to enforce its decision. On November 2, 1983, plaintiff filed his complaint in this case seeking a writ of mandamus to compel TVA to comply with the June 9, 1982 EEOC decision, joining the EEOC as an “informational defendant.”

It is plaintiff’s position that he is entitled to a writ of mandamus because TVA has refused to comply with a valid order issued by the EEOC, in violation of Section § 633a(b) of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. That section states in pertinent part:

The Civil Service Commission [now EEOC] shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section____ The head of each such department, agency or unit shall comply with such rules, regulations, orders, and instructions of the Civil Service Commission [now EEOC] ....

Plaintiff argues that pursuant to this statute and the applicable regulation, 29 CFR § 1613.235(b), compliance with the EEOC order is mandatory and TVA has no discretion to decide whether or not to comply with the order. Plaintiff asserts that since TVA’s statutory duty is mandatory, plaintiff is entitled to an order of mandamus requiring TVA to comply with the EEOC decision.

Defendant TVA counters the foregoing by asserting that plaintiff is not entitled to mandamus because the EEOC’s order is contrary to law. The thrust of TVA’s argument in this case is that there was only a single, unique job to be filled; and Parks and the plaintiff could not both occupy the same job. Since both men could not occupy the job, TVA argues that plaintiff was afforded complete relief when the selection panel was reconvened and plaintiff was allowed to compete for the position in the absence of discrimination.

Plaintiff seeks the issuance of a writ of mandamus pursuant to 28 U.S.C. § 1361. That section provides:

The district court shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to a plaintiff.

Mandamus is an extraordinary remedy which is available only when three elements are present: (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; (3) no other adequate remedy available. Americana Healthcare Corporation v. Schweiker, 688 F.2d 1072, 1084 (7th Cir.1982), cert. denied 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 434. The exercise of the power of mandamus is a matter committed to the sound discretion of the trial court. 13th Regional Corp. v. United States Dept. of Interior, 654 F.2d 758, 760 (D.C.Cir.1980). The Supreme Court has stated that mandamus is governed by equitable considerations and is to be granted only in the exercise of sound discretion. Id., citing Whitehouse v. Illinois Central Railroad Co., 349 U.S. 366, 75 S.Ct. 845, 99 L.Ed. 1155 (1955). Thus, before a writ of mandamus will issue the Court must find that the arguments in favor of issuance of the writ are clear and compelling on both legal and equitable grounds. 13th Regional Corp. v. United States Dept. of Interior, 654 F.2d at 760. After careful examination of the record and the briefs filed by all parties to this action, the Court concludes that a writ of mandamus should not issue.

In his brief plaintiff counsels that the matter before the Court is “extremely simple when kept in complete procedural prospective.” While this may be true, the Court must do more than decide whether all of the procedural prerequisites have been met in determining whether to grant the extraordinary remedy of mandamus. The Court must determine whether the three elements necessary for the issuance of a writ of mandamus are present and then exercise its discretion in deciding whether mandamus will issue. Review of the record reveals that the first of the elements is not present, i.e., there is not a clear right in the plaintiff to the relief sought.

In determining that there is not a clear right in the plaintiff to the relief sought, the Court is aware that the EEOC did issue an order granting plaintiff the relief he sought, and that 29 U.S.C. § 633a states, in effect, that the head of the TVA shall comply with such orders of the EEOC. The Court is of the opinion, however, that in determining the existence of a right in the plaintiff to the relief sought it is necessary to consider the validity of the basis upon which plaintiff premises his right. Thus, the Court must assess the propriety of the EEOC decision entered on June 9, 1982.

Upon review of the EEOC decision ordering that plaintiff be retroactively promoted and granted back pay and other benefits, the Court is convinced that the decision was erroneous. The purpose of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., is to make persons whole for injuries suffered as a result of unlawful employment discrimination. Davis v. Combustion Engineering, Inc., 742 F.2d 916, 922 (6th Cir.1984), quoting Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1097 (8th Cir.1982). Thus, the relief granted for ADEA violations should attempt to make aggrieved individuals whole for injuries sustained as a result of unlawful employment practices and, should attempt to implement the ADEA’s purpose of “ ‘recreating the circumstances that would have existed but for the illegal discrimination.’ ” Dickerson v. Deluxe Check Printers, Inc., 703 F.2d 276, 279 (8th Cir.1983), quoting Gibson, supra, 695 F.2d at 1097.

In the case at bar the remedy which _ was afforded plaintiff was to reconduct the selection procedure free of the taint of unlawful employment discrimination. It is the Court’s opinion that this procedure fully remedied the injury the plaintiff had previously suffered. By reconducting the selection process the TVA “recreated the circumstances that would have existed but for the illegal discrimination.” This remedy also served to make the plaintiff whole as it granted him that which he had been denied, i.e., an opportunity to compete for the Transmission Systems Maintenance Specialist position in an environment free of unlawful discrimination.

To grant plaintiff the relief he requests would place him in position considerably better than the one would have occupied but for the unlawful discrimination. Plaintiff, as a TVA employee, was only entitled to have an equal opportunity to compete with other employees for the position at issue. That position is single and unique. It can be filled by only one person. Plaintiff was given an opportunity to compete for the position and he has not charged that he was discriminated against in any way during the conduct of the second round of selection proceedings. Since plaintiff has received the opportunity to compete with other employees on an equal footing for the position at issue, he has received all that he is entitled to. To hold otherwise would be to grant plaintiff relief in excess of that to which is entitled. This would not be in keeping with the intent of the Age Discrimination in Employment Act.

The Court’s holding on the instant issue is supported by the decision of the Fourth Circuit in Pollard v. Grinstead, 741 F.2d 73 (4th Cir.1984). In that case, nine employees of the Defense Logistics Agency were seeking promotion to a foreman’s position. Plaintiff and James Webb, black employees who sought the job, were not selected, and both filed complaints with the EEOC claiming that they had been discriminated against because of their race. The EEOC agreed, holding that the agency had discriminated against both the plaintiff and Webb on the basis of their race. The EEOC remanded the case to the agency and ordered that the agency determine which of the two complainants would have been selected had there been no discrimination, and that the person chosen be awarded retroactive promotion with back pay. On remand, the agency determined that Webb’s qualifications were superior to the plaintiff’s and chose Webb for the position. The plaintiff then filed suit under Title VII of the Civil Rights Act of 1964, §§ 701 et seq., as amended, 42 U.S.C. §§ 2000e et seq., seeking a retroactive promotion and back pay.

The district court held that the agency was required to prove by clear and convincing evidence that Webb would have been selected over the plaintiff at the time of the original job selection. The court then considered evidence regarding the qualifications of plaintiff and Webb and ruled that the agency had failed to prove that Webb was the better applicant. On this basis the Court awarded plaintiff the relief he sought.

In reversing the district court’s decision the Fourth Circuit found that the relief ordered by the EEOC was proper under the circumstances. The court stated:

The relief ordered by the commission was appropriate for remedying discrimination against two or more applicants for a single job. Together with Webb, Pollard had been denied a statutory right to compete for the promotion free of discrimination. The commission’s remedy afforded Pollard full redress for the wrong he had suffered. It provided him the right to compete without discrimination for a retroactive promotion and back pay. Thus, the commission’s remedy effectuated the “make whole” purpose of. Title VII. See Albemarle Paper Company, 422 U.S. at 418, 95 S.Ct. at 2372.

Pollard, 741 F.2d at 75. It is the Court’s conclusion that the rationale set forth in Pollard applies with equal force to this ADEA case. Thus, the Court concludes that the remedy afforded plaintiff was full and complete.

Having found that remedy afforded plaintiff was fully adequate, the Court concludes that plaintiff has not established a clear right to the relief sought. Therefore, after considering both the legal and equitable principles applicable to the case at bar the Court exercises its discretion and holds that plaintiff is not entitled to a writ of mandamus. For the reasons stated above, TVA’s motion for judgment on the pleadings (which the Court hereby treats as a motion for summary judgment) will be GRANTED; the EEOC’s motion to dismiss (which the Court hereby treats as a motion for summary judgment) will be GRANTED; and plaintiff’s motion for summary judgment will be DENIED. An appropriate order will enter.

      . It is obvious that the legal entanglement giving rise to this case could have been avoided had the complaint of plaintiff Campbell and that of Walter S. Parks been consolidated and heard by the same EEOC complaints examiner. It is unclear from the record whether TVA or the EEOC is responsible for the reference of the complaints to different complaints examiners. In the future it would seem that whichever agency is responsible should insure that in cases such as those involving promotions or layoffs where there might be multiple complainants, those complaints are handled in such a way as to eliminate inconsistency.


author: MOTLEY, Chief Judge.

text:
    Michael J. OLIVIERI, J. Matthew Foreman, Michael Dillinger, Tom Kohler, Richard Ferrara, Edmund W. Trust, Hugh R. Bruce, John D. Edwards, Joseph Brown, Julius J. Spohn, Bernard L. Tansey, Clint Winant, James Doyle, David Lawlor, Jim Cannon, Ned Lynam, Edward Bryne, Michael Conley, Edward Harbur, Robert J. Buel, Christopher Wesolowski, Gary W. Spokes and Dignity-New York, Plaintiffs, v. Benjamin WARD, in his official capacity as Police Commissioner of the City of New York, Edward I. Koch, in his capacity as the Mayor of the City of New York, and the New York City Police Department, Defendants.
    No. 85 Civ. 3269 (CBM).
    United States District Court, S.D. New York.
    June 13, 1985.

      Staurt W. Gold, Anne E. Verdón, Valerie Caproni, New York City, for plaintiffs.
    Frederick A.O. Schwartz, Jr., Corp. Counsel by David D. Drueding, Jonathan L. Pines, New York City, for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

MOTLEY, Chief Judge.

Plaintiffs seek to enjoin defendants, on the basis of the First Amendment, from prohibiting them from demonstrating on the public sidewalk in front of St. Patrick’s Cathedral during the annual “Gay Pride March” to be held in New York City on June 30, 1985. Defendants maintain that in order to prevent a hostile confrontation between plaintiffs and certain antagonistic demonstrators, both groups must be banned from the sidewalk and relegated to controlled demonstration areas across Fifth Avenue. The matter is before the court on the motion of plaintiffs for a preliminary injunction. A hearing was held on the motion on May 24, 28, and 29 and June 12. The court now makes the following findings of fact and conclusions of law.

FINDINGS OF FACT:

Argument before the court has revealed that the following facts are not in dispute. They are therefore adopted as findings of the court. Plaintiffs are Dignity-New York (Dignity), an organization of homosexuals who are also Catholics, and several of its members. Defendants are the New York City Police Department, its Commissioner, and the Mayor.

Every year since 1970, there has been held in New York City a “Gay Pride March,” which is the major annual demonstration of solidarity organized by the local gay and lesbian community. Approximately 75,000 people take part in the parade, which proceeds down Fifth Avenue from Central Park to Washington Square. This year’s March is scheduled for June 30.

From 1976 through 1982, members of Dignity were permitted to step out of the line of marchers to hold a demonstration and religious service on the steps of St. Patrick’s Cathedral on the east side of Fifth Avenue between Fiftieth and Fifty-First Streets. The demonstrations were designed to convey to the passing marchers the message that homosexuals can be and frequently are practicing Catholics, and to protest the Roman Catholic Church’s anti-gay position. Defendants do not dispute that Dignity, its purposes, and its activities, including its demonstrations in front of St. Patrick’s, are totally peaceful and non-violent.

In 1981, two anti-gay demonstrators purporting to represent the Catholic War Veterans attacked some of the marchers and were arrested for disorderly conduct. No other violent incidents have been associated with Dignity’s demonstrations. Despite this incident, Dignity was permitted to hold its usual demonstration on the steps of St. Patrick’s during the 1982 March.

Prior to the 1983 March, defendants determined to close off access to the sidewalk and steps in front of St. Patrick’s, which are normally open to the public during other parades, because of threats of violence made by anti-gay demonstrators who had unsuccessfully sued to enjoin the entire March. Despite predictions that thousands of anti-gay demonstrators would appear, between 50 and 100 actually attended and there was no violence. In 1984, defendants again determined to “freeze” the sidewalk in front of the Cathedral to avoid what they perceived to be the potential for conflict between Dignity and the anti-gay demonstrators. A last minute First Amendment challenge to this restriction was dismissed by Judge Duffy of this court on grounds of laches. Once again, in 1984, only about 100 anti-gay demonstrators appeared and no violence was reported. Two representatives of Dignity were permitted briefly onto the sidewalk in front of the Cathedral to lay a wreath.

In anticipation of this year’s March, plaintiffs early on requested access to the sidewalk for a demonstration by their entire group of 200, arguing that the location in front of the Cathedral is crucial to conveying their message that gay people should be accepted as mainstream Catholics. The official organizers of the March, who hold a permit to occupy Fifth Avenue, have endorsed the proposed Dignity protest and have issued a resolution urging that Dignity be permitted access to the sidewalk as in the past.

Following the demand of an ad-hoc committee of anti-gay activists for equal access to the sidewalk, however, defendants again decided to deny access to all groups and to establish demonstration areas for each group, out of sight and sound of each other, across Fifth Avenue on Fiftieth and Fifty-First Streets. Defendants, in addition, propose to allow “a limited number” of Dignity members again to hold a ten to fifteen minute wreath-laying ceremony in front of the Cathedral when the Dignity contingent passes by. The parade would halt at this point, so that the demonstration would primarily be observed by other members of Dignity. Since this plan was formulated by Police Department officials and no formal appeal had been made to Mayor Koch prior to the bringing of this action, the court required plaintiffs to appeal first to the Mayor. The Mayor has now stated his support for the Department’s handling of the instant dispute. Exh. A. Since neither party called any witnesses, the court called Commissioner Ward as a witness.

Plaintiffs have proposed several alternatives to the total ban on more lengthy demonstrations in front of the Cathedral, including permitting a limited number of demonstrators from each group to occupy each end of the sidewalk with a buffer zone in between. As another alternative, the March organizers have agreed to permit Dignity to hold its demonstration and service in the eastern-most lane of Fifth Avenue directly in front of St. Patrick’s.

Defendants, nevertheless, have rejected any plan that provides for Dignity to maintain a presence in front of St. Patrick’s throughout the parade as plaintiffs demand. Defendants instead have counter-offered to move the controlled demonstration areas across Fifth Avenue onto Fiftieth and Fifty-First Streets around the corner from St. Patrick’s but still out of sight of each other. Plaintiffs reject this proposal because, like defendants’ original plan, it puts them out of sight and sound of many of the marchers.

In response to the court’s suggestion that both groups could be permitted controlled access to the sidewalk in severely limited numbers with a buffer zone in between, defendants have raised several objections. Defendants insist that mutually hostile gay and anti-gay demonstrators must be separated, preferably by a full city block, to avoid the danger of violence. Defendants further argue that even if the groups are sufficiently limited and separated to avoid violence between the sidewalk demonstrators, the potentially violent anti-gay demonstrators must be isolated from the main line of marchers. Defendants’ counsel states that it is the City’s policy not to allow hostile demonstrators to occupy the sidewalk directly adjacent to a parade possessing an official permit. Counsel further states that in past years, anti-gay demonstrators have jeered and spat upon participants in the March, and that the organizers of the 1985 March therefore have requested that counter-demonstrators be kept back from the line of marchers.

Defendants also argue that allowing Dignity alone to occupy the sidewalk would be an impermissible content-based restriction because it would deprive the anti-gay groups of their preferred symbolic backdrop. Defendants nevertheless report that the anti-gay groups have made no objection to defendants’ plan to isolate the sidewalk and further concede that in keeping Dignity from demonstrating in front of the Cathedra], the anti-gay groups apparently would achieve exactly what they wanted.

CONCLUSIONS OF LAW:

In order to obtain a preliminary injunction, plaintiffs must demonstrate irreparable harm and either a likelihood of success on the merits or substantial questions going to the merits coupled with a balance of hardships tilting in their favor. Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984); Sierra Club v. Hennessy, 695 F.2d 643, 647 (2d Cir.1982). The loss of First Amendment rights itself constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976); 414 Theater Corp. v. Murphy, 499 F.2d 1155, 1160 (2d Cir.1974). Absent preliminary injunction, any injury to plaintiffs’ First Amendment rights in this case would become irreparable on June 30, the date of this year’s “Gay Pride March.” Therefore, the question before the court is whether plaintiffs can demonstrate a likelihood of success on the merits of their First Amendment claim, or at least serious questions on the merits and a balance of hardships tilting in their favor.

The public sidewalks “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.). When a publicly owned place has been made generally available to the public for expressive activities, as the sidewalk along Fifth Avenue undeniably has, it will be considered, without more, to be a public forum. United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983). See also Concerned Jewish Youth v. McGuire, 621 F.2d 471, 473 (2d Cir.1980).

Government’s ability to limit speech in a public forum, absent a compelling state interest of a kind not argued for by defendants here, is “very limited.” Grace, 461 U.S. at 177, 103 S.Ct. at 1707. “[T]he government may enforce reasonable time, place, and manner regulations as long as the restrictions are ‘content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’ ” Id. (citations omitted). See also Clark v. Community for Creative Non-Violence, — U.S. —, ---, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221, 227 (1984). The court, in evaluating defendants’ claim that the restriction on Dignity’s demonstration is a constitutional time, place, and manner regulation, will address each of these requirements in turn.

Content-Neutrality

Defendants argue that their plan to move both Dignity and the anti-gay protesters to demonstration areas away from the front of St. Patrick’s Cathedral is content-neutral because it favors neither side of the dispute but merely bans all speech on the sidewalk in the interest of public order. In fact, there is no evidence that defendants seek to silence plaintiffs’ message. Nevertheless, it is undeniable that the sidewalk in front of St. Patrick’s has been made available to other demonstrators and parade participants in the past, and that both plaintiffs and their opponents are being removed because their speech is controversial and thought likely to cause a disturbance. The Supreme Court has held that restrictions on particular subjects of speech, in addition to limitations aimed at the viewpoint of individual speakers, may render invalid an attempted time, place, and manner regulation. “[Ajbove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972) (ban on picketing on certain subjects near school unconstitutional) (emphasis added). Accord Consolidated Edison Company of New York, Inc. v. Public Serv. Comm’n, 447 U.S. 530, 536-38, 100 S.Ct. 2326, 2332-34, 65 L.Ed.2d 319 (1980) (ban on bill inserts advocating either side of nuclear energy debate unconstitutional).

Subject matter restrictions have been approved as reasonable time, place, or manner regulations only when the setting of the speech raises special governmental concerns. See, e.g., Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (security on military base); Lehman v. Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (captive audience on city transit system). “Greer and Lehman properly are viewed as narrow exceptions to the general prohibition against subject matter distinctions.” Consolidated Edison, 447 U.S. at 539, 100 S.Ct. at 2334. No such exception applies here, where the forum traditionally has been open to all speakers and presents no special security problems such as are associated with military bases.

Therefore, defendants’ attempt to ban all speech from the front of St. Patrick’s Cathedral only on the day when the dominant subject matter will be gay rights is suspect as a subject matter distinction. Defendants nevertheless insist that since they seek not to suppress discussion on the subject but merely to move it across the street because of its alleged threat to public order, their plan passes the content-neutrality requirement. Even assuming, arguendo, that defendants’ actions are content-neutral, the regulation still cannot pass muster under the other prongs of the time, place, and manner test.

Important Governmental Interest

Defendants correctly assert that maintaining public order is an important governmental interest. When it seeks to justify curtailments on speech, however, government must do more than invoke “public order” in a general sense; it must show that there is a significant basis in fact for its prediction of disorder. Defendants’ “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Mosley, 408 U.S. at 101, 92 S.Ct. at 2293 (quoting Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969)). On the undisputed facts before the court, it does not seem that defendants had much more than a speculative fear of unrest when they decided to close off the sidewalk in front of St. Patrick’s Cathedral. The seven year experience of plaintiffs’ full-scale demonstrations provides defendants with an unusually detailed and consistent factual record to serve as a basis for prediction. Although there was a minor scuffle caused by anti-gay activists in 1981, plaintiffs held their usual demonstration in front of the Cathedral in 1982 without incident — belying defendants’ assertion that it is only the “freezing” of the sidewalk in 1983 and 1984 which has maintained order. Other than the 1981 incident, and despite veiled threats and annual predictions of mass demonstrations by anti-gay groups, there has been no other violence and no more than 100 demonstrators have ever appeared in opposition to Dignity. There is no rational basis for assuming that this year will be any different, or that anti-gay demonstrators will appear in front of the Cathedral in such numbers as would cause a major threat to public safety.

Moreover, that plaintiffs’ speech concerns controversial issues which arouse popular passions is, if anything, an argument for affording Dignity’s demonstration extra protection. It is precisely when speech in the public forum is provocative, challenging, and hotly contested that the core values of the First Amendment concerning the free exchange of ideas are most directly implicated — and that the state’s duty to protect the speaker’s right to speak is most pointedly called into play. As Justice Douglas wrote for the Supreme Court,

a function of free speech under our system of government is to invite dispute. It may indeed best-serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view. For the alternative would lead to a standardization of ideas either by legislatures, courts, or dominant political or community groups.

Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 895-96, 93 L.Ed. 1131 (1949). See also Bachellar v. Maryland, 397 U.S. 564, 567, 570-71, 90 S.Ct. 1312, 1314, 1315-16, 25 L.Ed.2d 570 (1970); Cox v. Louisiana, 379 U.S. 536, 551-52, 85 S.Ct. 453, 462-63, 13 L.Ed.2d 471 (1965).

The case at bar does not concern complete suppression of speech, and therefore is not controlled by the “clear and present danger” standard or its modern equivalent. See Brandenburg v. Ohio, 395 U.S. 444, 447-48, 89 S.Ct. 1827, 1829-30, 23 L.Ed.2d 430 (1969) (per curiam). Nevertheless, the underlying values of Terminiello and its progeny compel the court to examine closely any assertion by the government that peaceful speech by peaceful demonstrators on a controversial public issue in a classic public forum must be curtailed even by a time, place, and manner restriction because of the hostile, angry reaction of others. Our system favors what Justice Fortas described as a “hazardous freedom,” Tinker, 393 U.S. at 508, 89 S.Ct. at 737, which preserves the public forum for controversial speakers and does not permit anticipation of a hostile reaction to dictate when and where speech will be allowed.

In view of plaintiffs’ long history of peaceful demonstrations and the absence of a significant factual basis for a heightened expectation of violence this year, the court finds that the “important state interest” alleged in this case is comparatively weak. In reaching this conclusion, the court stresses that this is not a case where the setting of the speech implicates special government concerns. Fifth Avenue is not a military base, see Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), or a jailhouse, see Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), where extra security precautions are necessary. It is a major commercial thoroughfare and as such is the classic public forum.

Defendants rely on Concerned Jewish Youth v. McGuire, 621 F.2d 471 (2d Cir.1980) {CJY), as support for the importance of their asserted governmental interest. In CJY, a divided Second Circuit panel upheld a ban on picketing in front of the Russian Mission in New York City and a requirement that demonstrators be confined to a “bull pen” diagonally across the street. Id. at 472. Judge Mansfield dissented, calling the restriction “unlawful overkill and prior restraint of appellants’ exercise of their First Amendment right to picket and demonstrate in a peaceful and orderly manner.” Id. at 478.

In any event, CJY is distinguishable on several grounds. First, the demonstrators in CJY included militant Jewish Defense League members. Second, the restriction was made in response to several instances of violence and an ongoing danger of terrorism and vandalism at the Mission. Third, the protection of the Russian Mission was deemed to be of heightened governmental concern because it implicated our delicate relationship with a powerful foreign adversary. Fourth, the Mission’s location on a residential street implicated the privacy interests of local residents. Id. at 472-75. In the case at bar, by contrast, plaintiffs are an entirely peaceful group with a history of non-violent demonstrations, and neither potential terrorism nor international relations nor residential privacy are significant concerns on Fifth Avenue in Midtown Manhattan.

On facts analogous to CJY, in International Society for Krishna Consciousness, Inc. v. City of New York, 484 F.Supp. 966 (S.D.N.Y.1979) (ISKCON) (Motley, J.), this court ruled that the Police Department was justified in prohibiting plaintiff religious society from practicing Sankirtan, a ritual which includes proselytizing and soliciting funds, on sidewalks immediately adjacent to the visitors’ gate at United Nations headquarters. Id. at 967-68. Again, the general state interest in maintaining order was bolstered by a factually grounded concern over terrorism and the government’s particular interest in maintaining traffic flow and protecting the safety and convenience of United Nations visitors, some of whom had complained about the disruptive nature of plaintiffs’ activities. Moreover, the ban applied to all First Amendment activities and did not single out one particularly controversial topic for regulation. Id. at 968-70.

In both ISKCON and CJY, the City had a significant, content-neutral reason to keep all demonstrators away from a particular site, in addition to substantial concerns about the actual activities of the respective plaintiffs. By contrast, in this case, the government’s interests are based on speculation regarding disruption by third parties and there is no reason for heightened concern about terrorism or international embarrassment. In short, the state interests asserted in this case simply are not of the same magnitude as those implicated in CJY or ISKCON.

Narrowly Tailored Regulation

Even assuming, again arguendo, that defendants are able to show that sufficiently important government interests are implicated by the facts of this ease, defendants must still demonstrate that the asserted time, place, and manner regulation is narrowly tailored to serve those interests. United States v. Grace, 461 U.S. 171, 177-78, 181, 103 S.Ct. 1702, 1707-08, 1709, 75 L.Ed.2d 736 (1983). Once again, defendants’ case is problematic on the facts presented. Despite plaintiffs’ willingness to work with defendants on a compromise that would preserve plaintiffs’ access to their preferred forum, the Police Department has rejected all suggested alternatives. While it is true, as defendants’ counsel asserts, that the City is under no duty to consider every possible plan put forth by plaintiffs, the existence of a feasible and significantly less restrictive alternative would cast doubt on defendants’ assertion that the “freezing” of the sidewalk is a narrowly tailored method of maintaining public order.

One of plaintiffs’ suggestions — that Dignity and the anti-gay demonstrators each be permitted to occupy a portion of the sidewalk in front of the Cathedral with a buffer zone in between — was also proposed by the court as a possible compromise at the hearing on the instant motion. The suggestion was rejected by defendants because it did not adequately separate the Dignity contingent from the potentially disruptive anti-gay demonstrators and, more importantly according to defendants’ counsel, because it meant that the anti-gay group would be located directly adjacent to the passing parade. Counsel explained that this would violate the city’s policy of keeping potentially disruptive antagonistic demonstrators at a reasonable distance from parades that possess official permits, and would create a danger of harassment and spitting incidents which the parade organizers had requested be prevented. Since the anti-gay demonstrators therefore must be removed from the sidewalk directly adjacent to the parade, defendants’ counsel argues that content-neutrality requires that Dignity also be banned from the block.

Defendants make a facially appealing argument: Since both groups seek to avail themselves of the symbolic backdrop of St. Patrick’s Cathedral,- it is not for the state to decide that only one group may have that access. It is true, of course, that two objects can not occupy the same place at the same time. Thus, when two competing groups seek a street permit to parade on the same day, the City, of necessity, must choose between them, either on a first-come-first-served basis or by some other content-neutral method. The public sidewalk, however, is not assigned through a permit procedure; it is a traditional public forum which the City has generally left open for anyone who wishes to use it. In the absence of some formalized procedure for assigning sidewalks to particular groups, plaintiffs’ argument that they should get priority because they asked first for access to the sidewalk is without merit. To hold otherwise would be to invite the chaos of various groups scrambling to lock up particular public forums months or years in advance.

On closer reflection, however, the court is not persuaded by defendants’ content-neutrality argument. The issue is not whether, given the specific facts of this case, there is justification for granting a preference to plaintiffs in the use of the forum. The question is whether there is a content-neutral reason to deny access for either or both groups to a public forum that is otherwise open to everyone. If the court correctly understands the City’s policy, even if Dignity did not propose to demonstrate on the sidewalk in front of the Cathedral, the potentially disruptive anti-gay demonstrators would not be permitted near the parade on Fifth Avenue. Once this group, which has a history of harassing and attacking pro-gay demonstrators, is removed, so is the potential for any conflict with Dignity demonstrators. The accompanying state interest in maintaining order would thereby be satisfied in full, since there is no reason to expect conflict between plaintiffs and the rest of the marchers, whose organizers support the Dignity demonstration. Assuming that it is enforced in a content-neutral way, the City’s policy of keeping hostile demonstrators away from officially sanctioned parades therefore provides a substantially less restrictive way to maintain order on Fifth Avenue during the Gay Pride March: Simply keep the anti-gay demonstrators at a reasonable distance from the parade and otherwise leave the public forum undisturbed.

Once again, the facts of this case distinguish it from CJY and ISKCON, in which the activities of plaintiffs themselves created disturbances and presented a potential threat to public order and safety. Here, plaintiffs propose merely to continue their tradition of peaceful demonstrations. There has been no assertion by defendants of any overriding need to keep the sidewalk in front of St. Patrick’s clear of demonstrators as a general matter, or to keep friendly demonstrators away from the site of a parade possessing a City permit. Therefore, if the City’s policy of keeping hostile demonstrators away from recognized parades removes the anti-gay group from the Cathedral sidewalk to a controlled demonstration area set back from Fifth Avenue, the further removal of Dignity from an otherwise open public forum serves no additional state purpose.

The court does not believe, despite the able and articulate advocacy of defendants’ counsel, that permitting Dignity to hold its demonstration in front of the Cathedral while removing the anti-gay demonstrators would amount to an impermissible content-based distinction. The policy of protecting from disruption parades possessing City permits is content-neutral and presumably would be enforced no matter what messages were being disseminated.

For example, let us assume that the Catholic War Veterans and other like-minded groups were to obtain an official City permit to hold a “Family Values Parade” down Fifth Avenue on a certain Sunday and that a sympathetic group of Roman Catholics sought to hold a prayer vigil on the adjacent sidewalk. If, under this scenerio, a militant pro-gay group, with a history of attacking and spitting on “pro-family” marchers, were to announce its intention to hold a demonstration on the same spot at the same time, the City would no doubt be justified in keeping them behind barricades at a reasonable distance from the parade in order to prevent interference with the officially recognized event of the day. This would be nothing more than a reasonable time, place, and manner regulation. There would be no reason, on these facts, also to prevent the prayer group from availing itself of its preferred public forum.

In the final analysis, under this more narrowly tailored approach, defendants would not be “giving” the forum to one group over another. They would merely be declining to interfere with speech in a traditional public forum except where the potential for disruption of á City-recognized parade requires that hostile demonstrators be kept at a reasonable distance.

This conclusion is bolstered by plaintiffs’ undisputed observation that the primary agenda of the anti-gay demonstrators is to prevent plaintiffs’ speech. To remove Dignity from its preferred public forum because of fear of disruption by its opponents would be, as plaintiffs have suggested, to provide a blueprint for a modified heckler’s veto: Any group seeking to keep another group from using a particularly evocative public forum need only threaten to appear •with a sufficiently large, disruptive group of counterdemonstrators and the entire area will be “frozen.”

Another factual setting might present more troubling dilemmas for public officials seeking to remain content-neutral while balancing First Amendment rights against the need to maintain order. On the facts before the court, however, it is apparent that the evil to be prevented is the violent disruption of both Dignity’s peaceful demonstration and the entire “Gay Pride March.” Despite defendants’ repeated reference to preventing violence between two “mutually hostile” groups, it is the anti-gay demonstrators and not Dignity’s members who present the threat of violence. In that context, defendants’ decision to prevent both Dignity and the anti-gay groups from demonstrating in front of St. Patrick’s Cathedral is not a narrowly tailored means of serving the legitimate governmental ends at stake.

Alternative Channels of Communication

Plaintiffs argue persuasively that to move their demonstration from the sidewalk in front of St. Patrick’s to a side-street around the corner is to interfere seriously with their symbolic message, which is that gay people should be accepted as mainstream Catholics, and not shunted aside or reluctantly tolerated. The brief ten-minute demonstration directly in front of the Cathedral which defendants propose to allow, during which the parade would stop with the Dignity contingent in front of the Church and a “limited number” of members would be permitted on the sidewalk to lay a wreath, would not permit plaintiffs to convey their message to the entire passing parade of gays and their supporters. They would, as it were, merely be preaching to the converted.

In any event, in the absence of a content-neutral regulation that is narrowly tailored to serve important governmental interests, the existence of adequate alternative channels of communication cannot justify a restriction on First Amendment rights. “[T]he streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939). Accord Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975). See also United States v. Grace, 461 U.S. 171, 180-81, 103 S.Ct. 1702, 1708-09, 75 L.Ed.2d 736 (1983).

CONCLUSION:

On the facts before it, the court concludes that plaintiffs have shown a likelihood of success on the merits of their First Amendment claim. Defendants have failed to persuade the court that their plan to “freeze” the sidewalk in front of St. Patrick’s Cathedral during the “Gay Pride March” is content-neutral, that sufficiently important governmental interests are implicated by the facts of this case, that a more narrowly tailored alternative would not adequately serve whatever state interests are implicated, or that adequate alternative channels of communication are left open by defendants’ proposed regulation. Defendants’ predictions of violence are largely speculative and, to the extent that these predictions are factually grounded, are based on the likelihood of violent disruption by anti-gay demonstrators. As indicated above, defendants have content-neutral policies to maintain public order without interfering with the rights of peaceful groups to use the public forum. The limitations imposed on the public forum by defendants therefore are unreasonable both in terms of the numbers of demonstrators to be allowed on the sidewalk and the duration of time that they will be permitted to occupy the forum.

Since plaintiffs have demonstrated a likelihood of success on the merits, and since the alleged harm to plaintiffs’ First Amendment rights would occur on June 30, the date of this year’s March, plaintiffs also have made the requisite showing of irreparable harm. Plaintiffs therefore would be entitled to a preliminary injunction preventing defendants from denying them reasonable access to the sidewalk in front of St. Patrick’s Cathedral during the March.

Defendants will not be prohibited from taking appropriate action, through the use of barricades and the deployment of officers, to maintain order and safety on Fifth Avenue during the parade. The court is confident that the Police Department, with its vast experience in crowd control at New York parades and demonstrations, can fashion a means of maintaining the public peace without denying plaintiffs access to their preferred public forum. It is not the role of the court to dictate the details of this peacekeeping effort. The court must intervene only when the police, faced with an admittedly difficult, discretionary task, overshoot their authority to regulate First Amendment activity. Such is the case here and, absent a more reasonable plan, plaintiffs will be entitled to preliminary injunctive relief.

In view of the Commissioner’s expressed willingness to compromise and work with plaintiffs on a more reasonable plan, defendants are granted an additional 96 hours to formulate a plan that will permit a reasonable number of Dignity members to hold a peaceful demonstration on the sidewalk in front of St. Patrick’s Cathedral for a reasonable period of time. This plan will be presented to the court at 5:30 p.m. on Monday, June 17, 1985 in Courtroom 506.

      . The committee appears to consist of members of the Catholic War Veterans, the Knights of Columbus, and other groups. Defendants report that the anti-gay demonstrators, as they have for several years, arc predicting increased attendance at their counter-demonstration this year. In addition, the police anticipate a disturbance by a group of Orthodox Jews from Brooklyn on Fifth Avenue between Forty-Seventh and Forty-Ninth Streets. There is no evidence that this action will focus on Dignity's demonstration or St. Patrick’s Cathedral.

      . The court docs not have before it the question whether the record of disruption caused by anti-gay demonstrators is sufficient to provide a basis for a time, place, and manner restriction removing them from the sidewalk adjacent to the parade. If, however, defendants lack a sufficient basis to enforce their otherwise content-neutral policy of preventing interference with parades, they would also seem to lack a basis for predicting violence between the anti-gay demonstrators and Dignity members.