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April 13, 1967

Enrique Navarro, Individually and as President of Local 2, International Union of Police and Protection Employees-Independent Watchmen's Association et al., Plaintiffs
John J. Gannon, Individually and as President of Independent Watchmen's Association, Defendants

Metzner, D.J.

The opinion of the court was delivered by: METZNER


Plaintiff, individually, and as president and on behalf of all members of Local 2 of the International Union of Police and Protection Employees-Independent Watchmen's Association (Local 2), has moved pursuant to Fed. R. Civ. P. 65 for a preliminary injunction to restrain defendant Gannon, individually and as president of the Independent Watchmen's Association (Independent), from taking actions said to be violative of certain sections of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §§ 411-413 and 529. A temporary restraining order was entered in this case by Judge Motley on February 16, 1967. Circuit Judge Anderson refused to vacate that order on February 18, 1967. There is a cross-motion by defendants to dismiss the complaint for lack of subject matter jurisdiction, failure to state a claim on which relief can be granted and on the ground that the controversy is moot.

 Plaintiffs seek to enjoin defendants from:

 (1) Taking disciplinary action against Local 2, its members, officers and officials without first rendering a written specification of charges and giving a reasonable time to prepare a defense and afford a full and fair hearing thereon.

 (2) Assuming control of any meetings of Local 2.

 (3) Doing any act which shall have the effect of arbitrarily depriving the members, officers and officials of Local 2, in violation of the constitution of the Independent, bylaws and charter of Local 2, from nominating candidates, voting in elections or referendums, attending membership meetings and participating in the deliberations and voting upon the business of such meetings.

 (4) From interfering with the selection of counsel by Local 2.

 (5) From directly or indirectly, in violation of said constitution, bylaws and charter, hindering or interfering with the right of members to meet and assemble freely with other members.

 (6) From preventing the expression at meetings of Local 2 views upon any business properly before the meeting.

 (7) From denying the right of duly elected officers and officials of Local 2 to preside over the meeting.

 Plaintiffs' claim is based solely on a letter dated February 9, 1967 sent to the members of Local 2 by direction of the president of Independent, John J. Gannon. That letter does not deal with any action contemplated under item 1 or the first part of item 3 above. However, it indicates that Independent is cognizant of problems existing in Local 2 and "the I.W.A. now finds it necessary to furnish information, to take action and make recommendations as to how the membership may protect themselves and their Local." The letter further reflects Independent's displeasure with the appointment of counsel for the Local by the officers of the Local. The letter concludes with a statement that at the Local 2 meeting to be held February 19, 1967 the president has directed that:


"1. First Vice-President Kirby attend your next stated meeting called for February 19, 1967 and act as chairman of such meeting.


"2. Secretary-Treasurer McFaun and Sergeant-at-Arms Mancini attend such meeting and assist Vice-President Kirby in conducting same.


"3. Secretary-Treasurer McFaun be appointed to take true and exact minutes of such meeting.


"4. No counsel be permitted to attend this meeting."

 Because of the temporary restraining order, these events did not transpire.

 Jurisdiction of this action is predicated on 29 U.S.C. § 412, which provides:


"Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate."

 The court has subject matter jurisdiction, and we turn to the question of whether plaintiffs have asserted a legally sufficient claim.

 Plaintiffs rely principally on 29 U.S.C. § 411(a)(1) *fn1" (2) *fn2" and (5) *fn3" and 29 U.S.C. § 529. *fn4" There is nothing in the papers to sustain any alleged violation of section 411(a)(5).

 Plaintiffs demonstrate that article IX, section 1, of Independent's constitution, providing for the powers of officers of Independent, gives the president power only to attend meetings of the Local. No officer of Independent, including the president, is given power to preside at such meetings. Article V of the bylaws of the Local (which have been approved by Independent) states that the Local's president shall preside at all meetings of the Local. In this connection, article XI, section 4, of Independent's constitution ("Government of Local Unions") provides that the president of the Local Union shall preside at all meetings of the Local unless the bylaws provide otherwise. The direction by defendants that Mr. Kirby preside and chair the Local 2 meeting would appear to be ultra vires the union constitution and Local bylaws. Article IX, section 3, of the constitution provides for the powers and duties of Independent's secretary-treasurer. He is not given power to record the minutes of a Local Union meeting. Article V of the Local's bylaws gives this power to the recording secretary of the Local. Defendants' order directing Independent's secretary to take minutes of the meeting would also seem ultra vires. Similarly the sergeant-at-arms of Independent is not empowered to maintain order at a meeting of a Local. Article IX, section 4, of the constitution does not give him this power, and article V of the Local's bylaws confers the power upon a Local officer.

 The plan of the Labor-Management Reporting and Disclosure Act was to allow unions to set up their own self-government. In matters concerning meetings of the union which relate to rights of freedom of speech and assembly protected by 29 U.S.C. § 411(a)(1) and (2), it is certain that the union should be bound by its own constitution and bylaws. See H. Rep. No. 741, 86th Cong., 1st Sess. 7 (1959). Cf. Simmons v. Avisco, Local 713, Textile Workers Union, 350 F.2d 1012 (4th Cir. 1965) (union could not discipline its members except for offenses stated in its constitution and bylaws); United Nuclear Corp. v. NLRB, 340 F.2d 133, 137 (1st Cir. 1965) (union officers could not by their own action create members not authorized by the body of the membership or the constitution).

 While no specific provision of the constitution or bylaws as to whether or not counsel can be excluded from meetings has been cited by plaintiffs, an order denying the Local the right to have counsel present at its meetings may still violate 29 U.S.C. § 411(a)(1) and (2). Our circuit court has stated that the purpose of these sections is to assure that "unions be democratically governed and toward that end discussion should be free and untrammeled . . . ." Salzhandler v. Caputo, 316 F.2d 445, 451 (2d Cir.), cert. denied, 375 U.S. 946, 11 L. Ed. 2d 275, 84 S. Ct. 344 (1963).

 The papers submitted by both parties indicate that certain differences in policy exist between the officers of Local and Independent. Legal questions are intrinsic to these disputes. Prohibiting the attendance of counsel selected by the Local could prevent adequate and full discussion.

 Defendants question the standing of an officer of the Local to bring this action. They argue that 29 U.S.C. § 411 does not protect the rights of officers. The Local's president has, however, brought this action also as an individual member of the union. Further, cases indicate that the guarantees of 29 U.S.C. § 411(a)(1) and (2) are extended to officers as well as members. Grand Lodge of Int'l Assn. of Machinists v. King, 335 F.2d 340, 346 (9th Cir.), cert. denied, 379 U.S. 920, 85 S. Ct. 274, 13 L. Ed. 2d 334 (1964); see Salzhandler v. Caputo, supra.

 Defendants place their greatest emphasis on their contention that the matter before the court is now moot. The February 19 meeting has come and gone and the conduct sought to be restrained did not occur. However, there was a temporary restraining order of this court preventing such action in existence at the time. Defendants argue that there was no illegal conduct contemplated by the letter of February 9. Independent President Gannon states:


"The letter of February 9th, 1967 was designed to protect Union members in the exercise of their rights without slanting the meeting in favor of any party."

 Then he states, somewhat at counterpoint, that since the meeting has passed the remaining issues "are that the International is being asked, in general terms, to observe the law." This latter statement is correct. Nowhere in his affidavit does defendant Gannon clearly state that the action contemplated in the February 9 letter will not occur again, nor would his counsel on oral argument give such assurances. Forcing plaintiffs to return to court for successive temporary restraining orders on precisely the same facts would seem a burden both on plaintiff and the court. Lanigan v. Local 9, Int'l Bhd. of Elec. Workers, 327 F.2d 627 (7th Cir.), cert. denied, 377 U.S. 979, 84 S. Ct. 1885, 12 L. Ed. 2d 747 (1964), relied on by defendants, is not to the contrary. In Lanigan the plaintiffs sought to enjoin certain penalties that had already been imposed on them. As the court stated, "There was nothing to enjoin." 327 F.2d at 629. The court clearly recognized an injunction was proper when "cessation of illegal conduct did not diminish the risk of future similar conduct . . . ." 327 F.2d at 629. That is the situation here.

 Ordinarily a hearing at which testimony is taken would be the procedure to be followed in determining this application for a preliminary injunction. However, the issues presented by the papers revolve around the written communication dated February 9, 1967. On its face the action contemplated is violative of sections 411(a)(1) and (2). Motion granted. Settle order.

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