United States District Court, D. New Jersey
August 24, 2005.
CHARLES LOMACK; HAROLD J. BANE, JR.; RAMON DOMINGUEZ; JAMES P. WILLIS; KEVIN L. JOHNSON; PAUL T. MAZZA; KENNETH REEDS; GARY HOLMAN; LUTHER ROBERSON, III; GERRELL ELLIOTT, CLARENCE R. BRUTON; JAMES GILES; DEAN GATTI; PETER J. COONEY; JOHN P. MELANI; GREGORY HIGHSMITH; JUAN H. RAMOS; DAYON COBBS; DEBLIN RODRIGUEZ; RAMON RIVERA; CHARLES H. WEST; SCOTT WOLF; WILFREDO RIVERA; KARREEM JACKSON; JOHN BROWN; WYNDELL COOPER; SHANNON McTIGHE; ASHTON ROBINSON; MARK PISERCHIO; CHRIS DEMURO; NEWARK FIREFIGHTERS UNION; ERIC BARNES; EDWARD GRIFFITH; LEWIS MANNING and FRANK ZIDZIUNAS, Plaintiffs,
CITY OF NEWARK, SHARPE JAMES, EDWARD DUNHAM, LOWELL F. JONES and NORMAN J. ESPAROLINI, Defendants.
The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This action has historical origins at least fifty years old. In
the wake of World War II as more and more African-Americans
migrated to northern cities, such as Newark, N.J., racial
tensions between them and Newark's then predominantly white
population escalated. Those tensions reached a flashpoint in the
riots of July 1967, from which many neighborhoods in Newark have
not yet recovered. The conflicts between ethnic groups generated
many inequities and illegal policies which, eventually, the
courts were required to address. Regrettably, racial
discrimination in public employment manifested itself in many New Jersey cities, for example in their fire departments. This
condition led the United States to file suit against the State of
New Jersey and several cities to eliminate such practices in fire
departments. United States v. State of New Jersey, et al, Civ.
No. 77-2054, 79-184. That action was concluded by a Consent
Decree (Exh. D-10) dated May 30, 1980, which provided, inter
1. The defendants are compelled by law and by
entering into this Order acknowledge their obligation
to, and agree they shall, refrain from engaging in
any act or practice which has the purpose or effect
of unlawfully discriminating against any black or
Hispanic employee of, or any black or Hispanic
applicant or potential applicant for employment with
their respective fire departments because of such
individuals' race, color, or national origin.
Specifically the defendants shall not discriminate
against any such individual in hiring, assignment,
training, discipline, promotion or discharge because
of race, color, or national origin. Further,
defendants shall not retaliate against or in any
respect adversely affect any person because that
person has opposed discriminatory policies or
practices or because of that person's participation
in or cooperation with the initiation, investigation
or litigation of any charge of discrimination based
on race or national origin, or the administration of
this Order. Remedial actions and practices required
by the terms or permitted to effectuate and carry out
the purpose of this Order shall not be deemed
discriminatory within the meaning of
42 U.S.C. 2000e-2(a).
(Emphasis added). In paragraph 3(d) of the Consent Decree, Newark
acknowledged a goal "to fill at least sixty (60) percent of all vacancies [for entry level firefighters] with qualified
minority applicants." To be sure the primary focus of the Consent
Decree is on the testing of applicants and the hiring of
minorities, but its plain language also encompasses
discriminatory assignments of firefighters, the gravamen of the
case at bar.
Events Preceding Institution of this Suit
In 1995, the City of Newark commissioned two reports to examine
the performance of the Newark Fire Department in the 15 years of
operation under the Consent Decree. The Reports were authored by
Lezli Baskerville, Esq., an attorney practicing in Washington,
D.C. ("D-13" or "Baskerville Report") and Rosenfarb & Co. CPAs of
Roseland, N.J. and New York City ("D-14" or "Rosenfarb Report").
Each of these reports was submitted to the Newark City Council in
Ms. Baskerville's conclusions included the following:
There are numerous firehouses in the City that are
segregated by race. The belief is that the
segregation is deliberate. Examples were cited of the
following all African American companies with African
American officers in command: Engine Company Nos. 7,
12, 15, 17, 19 & 29; Truck Company Nos. 7 and 10.
Additionally, the following all African American
companies with white officers in command were cited
as examples of the pervasive discrimination: Engine
Company Nos. 8, 13, 27, 29; and Truck Company Nos. 1,
4, and 6. Examples were also cited of firehouses with
at least one all white tour: Engine Company Nos. 6,
9, 14, 16, 17 and 19; Truck Company Nos. 1, 5, 8, 10,
11. (D-13 at p. 17).
The Rosenfarb Report focused on segregated tours in firehouses,
providing charts reflecting the ethnic makeup (white, black,
Hispanic) of each of the 108 tours identified. The Report
included graphs as Exhibits D-1 through D-20 depicting the
ethnicity of each member of each tour. (D-14 at Exhs. D-1 through
D-20). Summarizing those graphed findings, the Rosenfarb Report
Exhibits D-1 through D-20 set forth the tour
compositions of each firehouse on August 2, 1995. The
information the Department provided to us described
108 tours. Eighty-one of the tours had a majority of
white personnel, with 30 being comprised entirely of
white personnel. Fifteen of the firehouse tours were
predominantly black. Only one tour had a majority of
hispanics. The remaining eleven tours did not contain
a majority of any one group. The tours consisted of
both firefighters and captains.
Actually, that summary is somewhat understated in that of the
tours described as "predominantly black", eight (or more than
one-half) were comprised of entirely black personnel.
One cannot speculate as to why the City of Newark did not
respond promptly to this issue of segregated firehouses. Perhaps
its Counsel were uncertain as to how to proceed in the wake of the United States Supreme Court's decision in Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Perhaps other
features of these reports such as those criticizing the lack of
outreach to encourage applicants, alleged circumvention of
residency requirements, and failure to attain a sufficient total
number of minority firefighters, consumed more time and attention
in the years following 1995. Nevertheless, Mayor Sharpe James, at
his re-inauguration speech on July 1, 2002, made it clear that
segregated firehouses should disappear from the landscape of
Newark. In his words:
Our Fire Department will face a mandate to integrate
our fire houses to improve morale. It is inexcusable
that [in] the year 2002 we still have segregated fire
houses in the City of Newark, and to give
firefighting and community services a higher priority
than politics. To lead this charge, to lead this
charge a true professional firefighter Former Fire
Chief Edward Dunham will serve as Director of the
Newark Fire Department. Ed is a career fire officer
who joined the Department in 1970 and worked his way
through the ranks to Captain before being named Fire
Chief in 1998. Since his retirement in 2000 he has
been the Department's Affirmative Action Specialist
both during active service and in his current
position during retirement. He has been the prime
mover of efforts to recruit and train minority
personnel for the Department. We plan to make our
Fire Department the best in America and to honor a
court order to make our Fire Department the mirror of
the City of Newark, Mr. Ed Dunham.
Mr. Dunham determined that a policy of transfers between firehouses was a sound way to accomplish their desegregation. On
November 27, 2002 he wrote to Fire Chief Lowell Jones as follows:
"You are directed to formulate a mass departmental
transfer list throughout Fire Suppression Operations.
This transfer list shall include the following:
1. Reflect the diversity of the department; and
2. Assignment of Roving Probationary Firefighters.
You are to have this list completed and forwarded to
this office on or before December 31, 2002."
Chief Jones' Department Transfer List, Exh. P-4, was crafted as
that exhibit explains;*fn2 however, it did not attain the
goal of integration which Dunham was pursuing. Accordingly, Fire
Director Dunham asked Battalion Chief Raymond L. Wallace to
generate a transfer list which would attain that goal. Wallace
did so, presenting such a list with an explanation of its origins
on January 13, 2003. That list (Exh. P-5) is also attached to
this Opinion. Wallace's methodology bears repeating here,
particularly in light of the strict scrutiny which this
affirmative action program must survive. After reviewing the transfer list submitted by Fire
Chief Jones as requested by you, I note the directive
as to have diversity throughout the Newark Fire
Department has not been achieved. if Chief Jones
transfer list were to be used, there would be 14
companies all Caucasion and 10 companies African
American. (see Jones list) This list does not meet
the directive and is unsatisfactory.
I propose a solution that would meet the mandate of
diversity for all fire crews within the Department.
(see 100% diversity) This would require transfers of
department members to meet the objective. The
transfers would be consistent across the Department,
as the firefighter with the least seniority would be
transferred. Some of these transfers would be made
within the same firehouse, changing tours. Others
would be transferred within the Battalion when
possible. Be assured that every effort was made to
minimize the impact on the affected firefighter.
(Emphasis in original.)
On January 15, 2003, in Executive Order No. 426 (Exh.
P-6)*fn3 Director Dunham announced the list of transfers
(consistent with Wallace's memorandum) "effective at 0800 hours
on Friday, January 31, 2003." This was a unique event in the
Newark Fire Department since transfers in the past had been
predominantly voluntary with a significant role being played by
the plaintiff unions in the granting or denial of transfer
requests. As the year 2004 began, Director Dunham and Mayor James
were able to announce that all of Newark's fire companies had
been integrated. Several of the plaintiffs instituted EEOC claims of race
discrimination based upon this implementation of integration
through the transfers policy, receiving right to sue letters on
or about November 2, 2004. (Second Amended Complaint at 45-46).
The present lawsuit, filed on December 14, 2004, soon followed.
Asserting that 24 firefighters were involuntarily transferred
out of their present companies, and five were denied requests to
transfer, due to the new diversity policy, and seeking to avoid
similar transfers in late 2004 and early 2005, plaintiffs have
brought the present lawsuit alleging violation of the right of
equal protection under the Constitution of the United States,
violation of civil rights through state action per
28 U.S.C. § 1983, and race discrimination within the purview of Title VII
(42 U.S.C. § 2000e et seq.) and the New Jersey Civil Rights Act
(N.J.S.A. 10:6-1 et seq.)
PROCEDURAL HISTORY IN THIS COURT
On December 15, 2005 this Court granted a Temporary Restraining
Order ("TRO") against any further involuntary transfers within
the Newark Fire Department ("NFD") and set the matter down for a
hearing for a preliminary injunction on January 6, 2005. The TRO was filed on December 23, 2004. A preliminary
injunction was denied, without prejudice, as embodied in the
Court's Order of January 7, 2005. An Amended and then a
Second Amended Complaint were filed, and the matter proceeded to a bench
trial during which the Court took testimony on March 15, 17, 18
and 21 and on May 2, 2005. Also, on April 21, 2005, plaintiffs'
additional application for a preliminary injunction was denied.
On May 25, 2005, each side submitted proposed findings of fact
and conclusions of law, and on June 10, 2005 plaintiffs submitted
a response to defendants' submission.
The Court is tempted to view this matter in its simplest terms:
reasonable action by a municipality, operating under a consent
decree, to desegregate its fire companies, much as it would its
schools, because "separate but equal" is not a viable rationale
to justify segregation in either setting. It is equally tempting
to conclude that because assignments and reassignments to tours
are the City's management prerogative (in which the plaintiff
Unions have no role and which the affected firefighters and
officers may not grieve under their CBAs), the present transfer
plan to desegregate Newark's firehouses is a legitimate,
unassailable exercise of that prerogative. See Newark
Firefighters Union, Inc. v. City of Newark, ___ N.J. Super. ___
(App.Div. June 23, 2005), which this Court finds persuasive and endorses.
However, the United States Supreme Court has, in the last 10
years, addressed in depth the manner in which a court should
scrutinize affirmative action programs to promote diversity in a
setting such as that presented here. The City's transfer program
should also be measured against those standards.
In Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995),
the Court, resolving conflicting approaches in its own prior
decisions, determined that all racial classifications employed by
a governmental actor must be analyzed by a reviewing court under
strict scrutiny, to ensure that rights of equal protection under
the law (a fourteenth amendment guarantee) have not been
infringed. That strict scrutiny requires a determination that the
action taken serves a compelling governmental interest and is
narrowly tailored to further that interest. Although Adarand's
factual setting is different from that of the case at bar, the
recent decisions involving admissions policies at the University
of Michigan are much closer, and the Court will address them at
In Gratz v. Bollinger, 539 U.S. 244 (2003), the Court
acknowledged that diversity in the student body of an educational
institution can constitute a compelling state interest, but
concluded that the automatic allowance of a 20-point bonus
(one-fifth of the total points needed to guarantee admission) to
each "underrepresented minority" candidate solely because of ethnicity
was not narrowly tailored to ensure diversity. Thus, this policy
for undergraduate admissions at the University of Michigan was
In Grutter v. Bollinger, 539 U.S. 306 (2003), decided on the
same day as Gratz, the Court upheld against a similar attack
the admissions policy of the University of Michigan Law School.
The Court, speaking through Justice O'Connor (also the author of
Adarand) stated, "today we endorse Justice Powell's view that
student body diversity is a compelling state interest that can
justify the use of race in university admissions." (Id. at
325). Turning to the record before it, the Supreme Court stated
the following in concluding that the Law School had a compelling
interest in the generation of a diverse student body.
Our conclusion that the Law School has a compelling
interest in a diverse student body is informed by our
view that attaining a diverse student body is at the
heart of the Law School's proper institutional
mission, and that "good faith" on the part of a
university is "presumed" absent "a showing to the
contrary." 438 U.S., at 318-319, 57 L. Ed. 2d 750,
98 S. Ct. 2733.
As part of its goal of "assembling a class that is
both exceptionally academically qualified and broadly
diverse," the Law School seeks to "enroll a `critical
mass' of minority students." Brief for Respondents
Bollinger, et al. 13. The Law School's interest is
not simply "to assure within its student body some
specified percentage of a particular group merely
because of its race or ethnic origin." Bakke,
438 U.S. at 307, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (opinion of Powell,
J.). That would amount to outright racial balancing,
which is patently unconstitutional. Ibid.; Freeman
v. Pitts, 503 U.S. 467, 494, 118 L. Ed. 2d 108,
112 S. Ct. 1430 (1992) ("Racial balance is not to be
achieved for its own sake"); Richmond v. J.A. Croson
Co., 488 U.S., at 507, 102 L. Ed. 2d 854,
109 S. Ct. 706. Rather, the Law School's concept of critical
mass is defined by reference to the educational
benefits that diversity is designed to produce.
These benefits are substantial. As the District Court
emphasized, the Law School's admissions policy
promotes "cross-racial understanding," helps to break
down racial stereotypes, and "enables [students] to
better understand persons of different races." App.
to Pet. for Cert. 246a. These benefits are "important
and laudable," because "classroom discussion is
livelier, more spirited, and simply more enlightening
and interesting" when the students have "the greatest
possible variety of backgrounds." Id., at 246a,
(Id. at 333).
The Court then proceeded to determine whether the Law School's
admission program (very different than that for undergraduate
admissions) was narrowly tailored to achieve a diverse student
body. In the Court's words:
We acknowledge that "there are serious problems of
justice connected with the idea of preference
itself." Bakke, 438 U.S., at 298, 57 L. Ed. 2d 750,
98 S. Ct. 2733 (opinion of Powell, J.). Narrow
tailoring, therefore, requires that a race-conscious
admissions program not unduly harm members of any
racial group. Even remedial race-based governmental
action generally "remains subject to continuing
oversight to assure that it will work the least harm
possible to other innocent persons competing for the benefit."
Id., at 308, 57 L. Ed. 2d 750, 98 S. Ct. at 2733.
To be narrowly tailored, a race-conscious admissions
program must not "unduly burden individuals who are
not members of the favored racial and ethnic groups."
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 630,
111 L. Ed. 2d 445, 110 S. Ct. 2997 (1990) (O'Connor,
(Id. at 341). The Court then concluded that the Law School's
admissions program was narrowly tailored, and upheld it.
Let us now apply strict scrutiny to Newark's policy to
desegregate its firehouses, determining first whether this City
had a compelling interest in doing so and, if so, whether the
action taken was narrowly tailored to achieve that goal.
Prior to the implementation of the present diversity policy,
de facto segregation existed in a significant number of tours
in Newark's firehouses. Thus, the "assignment" of personnel
through the random system previously in place had the "effect of
unlawfully discriminating against [a] black or Hispanic employee"
(to wit, a firefighter of that ethnicity) assigned to an
all-black or all-Hispanic tour. (Consent Decree at ¶ 1). Since
separate but equal circumstances such as these have been declared
per se discriminatory for more than 50 years, Newark had a
compelling interest to institute an assignment policy that would
desegregate its tours. With the adoption of the policy of involuntary transfers to eliminate segregated tours of duty in
the Fire Department, the City of Newark initiated "remedial
actions and practices . . . permitted to effectuate and carry out
the purpose of this Order. . . ." (Id.) Indeed, any such
remedial actions under the Consent Decree were specifically
declared not to be discriminatory within the purview of Title
VII. (Id) In brief, Newark instituted the transfer policy to
implement the Consent Decree by desegregating its firehouses, a
compelling interest if ever there was one, and it succeeded.
Plaintiffs argue that a fire department is not a law school and
that the benefits of diversity to such an educational environment
do not apply to a firehouse whose mission is to fight fires and
deal with other community emergencies, not to educate tomorrow's
leaders. From that premise, plaintiffs further argue that
Newark's transfer policy is "outright racial balancing . . . for
its own sake", action condemned by the Supreme Court. Grutter v.
Bollinger, 539 U.S. 306, 333 (2003). While these arguments
deserve consideration, they do not prevail in the case at bar.
There is credible evidence in the record that exposure to other
firefighters of different backgrounds, vocabularies and cultures
better prepares a firefighter to work effectively with his
colleagues and to perform better on tests for promotional
opportunities. Mentoring from senior firefighters on a tour (usually white) helps junior (often minority) firefighters better
learn and perform their tasks. Much of a firefighter's time is
spent at the firehouse in a setting of formal and informal
training which is enhanced by a diverse, multi-generational
environment. Racial stereotypes can be broken down in this
setting as well as in a classroom. The Court finds the testimony
of Captain Fatcen Ziyad particularly persuasive regarding the
educational and sociological benefits of service in an integrated
fire company. As stated in the defendants' post-trial submission,
which the Court finds supported in the record and, therefore,
adopts: "Captain Ziyad and Former Director Ed Dunham testified
how integration in fire companies leads to greater camaraderie
between coworkers, acceptance and consideration for people of
varying backgrounds, sharing of information and study support. It
also promotes tolerance and mutual respect among colleagues. What
the NFU and the NFOU fail to even acknowledge in their quest to
maintain firefighter based assignments choices, which led to the
creation of single-race fire companies, is that firefighters are
often welded together with a deep friendship and respect born in
training together, in being housed together, in combating fires
together, and subsequently matured by the realization that such
diverse racial, gender and cultural association is not the
impossibility within the fire department that many have been led
to believe." (Defendants' Findings of Fact and Conclusions of Law at 36).
Accordingly, while education is not the primary function of a
fire company, formal and informal training, on the job and during
a tour at the firehouse, is an important aspect of a
firefighter's occupation. Development of mutual respect and
understanding between members of different races in the Newark
Fire Department, which can only improve their performance in
their often dangerous work, is necessarily enhanced by serving
side-by-side with colleagues in a multi-racial tour.
When one "strictly scrutinizes" the Newark transfer policy and
finds it to be designed to eliminate de facto segregation in
its firehouses, in pursuit of the mandate of the Consent Decree
to which it was a party, with attendant educational, sociological
and job-performance enhancements as well, one is led to the
inevitable conclusion that this policy was implemented to achieve
a "compelling interest" of the City. Under no circumstances can
it be said that the policy in question is merely "outright racial
balancing . . . for its own wake." Grutter, 539 U.S. at 333.
The Court now turns its attention to the question of whether
the policy implemented by the City of Newark was "narrowly
tailored" to achieve the goal. Indeed it was.
Initially, the Court notes that Union participation was
certainly not required as any part of a narrowly tailored approach. The Unions' participation in prior transfer decisions
as a claim of right had contributed significantly to the
singlerace firehouses with which Newark was confronted in 2002.
The letter from Captain John B. Sandeller of the Newark Fire
Officers Union to Chief Jones, dated December 30, 2002,
demonstrates that it would be business as usual as far as the
Union was concerned. (Exh. P-19).
The Newark Fire Department then proceeded in a measured,
appropriate sequence to establish a policy to achieve its goal of
desegregation. Chief Jones produced for Director Dunham a list
(P-4) essentially based upon voluntary transfer requests (some
granted and some denied) and the assignment of new arrivals in
the Department. Chief Jones said that through this list he "tried
to achieve an element of diversity . . ." (Id.) However, he was
unsuccessful in achieving diversity throughout all tours.
Battalion Chief Wallace next addressed this task, generating the
transfer list with the explanation of its methodology appearing
in P-5. Wallace's approach could serve as a textbook for narrow
tailoring in this field:
(1.) The Court infers that Wallace picked up where
Jones left off, that is, employing assignments to new
firefighters, and honoring voluntary transfer
requests where diversity goals could be served.
(2.) Both white and non-white firefighters would be
(3.) "the firefighter with the least seniority would be transferred." (Id.)
(4.) "Some of these transfers would be made within
the same firehouse, changing tours." (Id.)
(5.) "Others would be transferred within the
Battalion when possible." (Id.)
(6.) ". . . every effort was made to minimize the
impact on the affected firefighter." (Id.)
(7.) No firefighter, whatever his race, was fired,
laid off or furloughed.
(8.) No firefighter suffered any reduction in rank,
seniority or compensation.
(9.) No successful recruit was denied admission to
the Fire Department.
(10.) Use of the transfer policy violated no
employee's rights under any CBA because it was the
exercise of a management prerogative.
Under strict scrutiny, the Court determines that the City of
Newark had a compelling interest to desegregate its fire
companies and did so pursuant to a policy of assignments and
transfers that was narrowly tailored to achieve that goal.
Plaintiffs have, therefore, failed to sustain any of their claims
in the Second Amended Complaint.
While the Court has undertaken the foregoing factual and legal
analysis which the law requires, determining that under such
principles as "strict scrutiny", "compelling interest" and
"narrow tailoring" Newark's plan to integrate its fire companies
survives plaintiffs' attack, it has also not lost sight of its primary
mission in all cases: to ensure that justice is done. The
racial tensions that have gripped the City of Newark for decades,
even erupting into the riots of 1967, are all too well known in
this region. The Consent Decree was a valiant effort to combat
racial preferences in the Newark Fire Department but, as noted
above, progress under that Decree was painfully slow. To suggest
that the Decree and the racism which it sought to combat is
satisfied merely by a gross headcount of minority firefighters
and officers while segregated firehouses persist is to endorse,
in essence, the separate but equal philosophy so emphatically
rejected by our Supreme Court more than 50 years ago in Brown v.
Board of Education, 347 U.S. 483 (1954).
The City of Newark, urged by its mayor and working through the
senior members of the Fire Department, undertook the laudable
goal of integrating all the City's fire companies through a
policy of augmenting transfer requests and assignments of new
personnel with a minimum of necessary involuntary transfers. This
was not an easy task, particularly considering that three
significant ethnic groups (Caucasian, African-American and
Hispanic) are involved in the assignment process. But the task
has been accomplished, and it was right and just to do so.
Let us contrast the actions, the motives and the courage of the
City of Newark with the conduct of the plaintiff Unions in this case: The Newark Firefighters Union and the Newark Fire
Officers Union. Those unions and their leadership could have
endorsed the city's plan and surely played a role in its
implementation. The benefits to all Union members from integrated
firehouses have been adequately argued and established on this
record and, indeed, were obvious. Equally obvious is the
potential for integrated fire companies, particularly when their
members arrive at a neighborhood fire, to demonstrate to the
citizens of the City of Newark that cooperation by persons of
different races, striving side-by-side to achieve a common goal,
works. But the Unions would have none of this. Blinded by a
perceived incursion into their rights as their members'
collective bargaining representatives, the Unions would sacrifice
the laudable goal of a truly integrated fire department at the
altar of a jurisdictional dispute over their "rights" to approve
permanent transfers as bargainable terms and conditions of
employment. On this point the Unions have recently been proven
wrong by the Appellate Division in Newark Firefighters Union,
Inc. v. City of Newark, ___ N.J. Super. ___ (App.Div. June 23,
2005). Yet, as plaintiffs in the case at bar, the Unions have
pursued this goal under the guise of the United States
Constitution and various anti-discrimination statutes. However,
the perpetuation of segregated firehouses, with voluntary
transfers into comfortable environments, encouraged by Union
input particularly on questions of seniority (the old status quo which the
Unions fight here to preserve), is the very antithesis of the
civil rights laws which the Unions invoke. As noted in the
preceding portions of this Opinion, they have not succeeded.
For the reasons set forth above, the Court dismisses all claims
set forth in the Second Amended Complaint and enters judgment for
the defendants, with costs.
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