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NEW WATCH-DOG COMM. v. NEW YORK CITY TAXI DRIVERS

October 21, 1977

NEW WATCH-DOG COMMITTEE, THOMAS M. IANDOLI, on behalf of themselves Individually and on behalf of all others similarly situated, Plaintiffs,
v.
NEW YORK CITY TAXI DRIVERS UNION, LOCAL 3036, AFL-CIO, BEN GOLDBERG, its President, and ROBERT J. PANCALDO, its Secretary, Defendants



The opinion of the court was delivered by: GAGLIARDI

GAGLIARDI, D.J.

 This is an application for a preliminary injunction to restrain the defendants, the New York City Taxi Drivers Union, Local 3036, AFL-CIO ("the Union", or "Local 3036"), and its current president, Ben Goldberg, and secretary, Robert Pancaldo, from engaging in allegedly unlawful practices with respect to a pending election of Union officers and trustees. Plaintiffs are Thomas M. Iandoli, a member of the Union who is a candidate for the office of Union president, and the New Watch-Dog Committee, comprised of Union members who will propose their own slate of candidates, headed by Iandoli. Plaintiffs, suing on behalf of themselves and all others similarly situated, claim that defendants have violated various provisions of Title 1, §§ 101 et seq., of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 411 et seq., and of Title IV, §§ 401-403, of LMRDA, 29 U.S.C. §§ 481-483, as well as various provisions of the Union's constitution and by-laws. Jurisdiction is alleged under LMRDA § 102, 29 U.S.C. § 412, LMRDA § 401(c), 29 U.S.C. § 481(c), and principles of pendent jurisdiction.

 The Union election, held once every three years, is currently scheduled to take place during the final week of October, 1977. Plaintiffs allege in their complaint that defendants' conduct threatens the fairness of the scheduled election in several different respects. The specific contentions raised by plaintiffs, together with the relief sought, are as follows:

 1. Plaintiffs allege that defendants have discriminatorily used the Union pensioners membership list by allowing its use to support the candidacies and reelection campaigns of incumbent officers while denying plaintiffs access to it, in violation of LMRDA §§ 401(c) and 401(g), 29 U.S.C. §§ 481(c) and 481(g). Plaintiffs also charge that defendants improperly used Union funds to support the candidacies of incumbent officers by organizing and financing two brunch meetings for 400 Union pensioners which allegedly were occasions for electioneering by incumbents in violation of 29 U.S.C. § 481(g). An injunction requiring defendants to allow plaintiffs to inspect the membership list in support of their own candidates and prohibiting future misuse of Union funds was requested by plaintiffs. *fn1"

 2. Plaintiffs allege that defendants have reduced the number of days during which candidates may be nominated from eight to five, thus improperly limiting the nomination process of the Union election committee in violation of Union by-laws. Plaintiffs ask the court to order an extension of the period for nominating election committee candidates.

 3. Plaintiffs allege that defendants intend to allow members of the Taxi Owner Drivers Division (the "TODD") of the defendant Union to vote in the upcoming election, which, plaintiffs claim, violates the Union's constitution and by-laws and will result in the unlawful dilution of the votes of those Union members not members of the TODD. Plaintiffs ask the court to enjoin the owner drivers from voting in the election.

 4. Plaintiffs allege that defendants have improperly used the Union newspaper to advocate the candidacies of incumbent officers. Plaintiffs ask the court to enjoin further such use of the Union publication and to correct the past misuse by ordering the defendants in the future to provide equal space and coverage in the Union paper for plaintiffs and the candidates they support.

 Jurisdiction

 LMRDA § 401(c), 29 U.S.C. § 481(c), expressly provides pre-election jurisdiction in this court to remedy discrimination in access to union membership lists and distribution of campaign literature. *fn2" Plaintiffs have charged that defendants discriminatorily used the Union pensioners membership list by denying plaintiffs access to it while employing it themselves to convoke brunch meetings at which electioneering on behalf of incumbent officers allegedly took place. This allegation plainly charges a violation of LMRDA § 401(c), 29 U.S.C. § 481(c). It is undisputed, moreover, that the statute's remaining jurisdictional prerequisites are met: the instant claim is brought by a bona fide candidate for Union office in the United States District Court for the district in which the defendant Union maintains its principal office. Accordingly, this court does have jurisdiction over plaintiffs' claim of discriminatory use of Union membership lists and its request for access thereto for the mailing of campaign literature. 29 U.S.C. § 481(c); Calhoon v. Harvey, 379 U.S. 134, 140 n.13, 13 L. Ed. 2d 190, 85 S. Ct. 292 (1964); Backo v. Local 281, United Bro. of Carpenters & Joiners, 308 F. Supp. 172, 176 (S.D.N.Y. 1969), aff'd, 438 F.2d 176 (2d Cir. 1970), cert. denied, 404 U.S. 858, 30 L. Ed. 2d 99, 92 S. Ct. 110 (1971); Yablonski v. United Mine Workers of America, 305 F. Supp. 868, 875 (D.D.C.), supplemented on remand, 305 F. Supp. 876 (D.D.C. 1969). Based on a court-supervised agreement between the parties, however, plaintiffs have withdrawn their request for court-ordered relief as to this claim. *fn3"

 Further, it is established that such right to nondiscriminatory access to membership lists, enforceable in a pre-election injunctive suit, includes the right to nondiscriminatory coverage in and utilization of union publications. Morrissey v. Curran, 356 F. Supp. 312, 314 (S.D.N.Y. 1973); Sheldon v. O'Callaghan, 335 F. Supp. 325, 327-28 (S.D.N.Y. 1971); Yablonski v. United Mine Workers, supra, 305 F. Supp. at 875. See also Sheldon v. O'Callaghan, 497 F.2d 1276, 1283 n.9 (2d Cir.), cert. denied, 419 U.S. 1090, 42 L. Ed. 2d 682, 95 S. Ct. 681 (1974) (the "equal rights and privileges" guarantee of LMRDA §§ 101 and 102, 29 U.S.C. §§ 411(a) and 412, held applicable as jurisdictional base when the defendant union allegedly undermined the fairness of a pending referendum by denying plaintiffs access to membership lists and by presenting biased coverage in union newspaper). Consequently, this court has proper jurisdiction to determine plaintiffs' pre-election suit alleging discriminatory misuse of the Union paper.

 Plaintiffs' claim that defendants unlawfully contributed or applied Union funds to promote the candidacy of incumbent officers by financing the brunch meetings at which campaigning took place alleges a violation of LMRDA § 401(g), 29 U.S.C. § 481(g). *fn4" This claim is exclusively to be raised after the election by the Secretary of Labor pursuant to LMRDA § 402, 29 U.S.C. § 482, *fn5" and this court has no jurisdiction over it at this point, for "Congress, with [the exception of the rights and pre-election enforcement provisions of LMRDA § 401(c), 29 U.S.C. § 481(c), discussed supra ], decided not to permit individuals to block or delay union elections by filing federal-court suits for violations of Title IV." Calhoon v. Harvey, supra, 379 U.S. at 140. In any event, the parties have reached a mutually acceptable settlement of this claim and its merits are no longer before the court. *fn6"

 The claims that defendants improperly shortened the nomination period for members of the Election Committee and that members of the Taxi Owner Drivers Division ("TODD") of the defendant Union should not be permitted to vote in the pending election allege violations of the Union's constitution and by-laws. As such they present causes of action for breach of contract under state law, see, e.g., Polin v. Kaplan, 257 N.Y. 277, 177 N.E. 833 (1931), and consequently may be considered by this court under the principle of pendent jurisdiction if they and the federal claims established under LMRDA § 401(c), 29 U.S.C. § 481(c), discussed supra, "derive from a common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). As held in Libutti v. DiBrizzi, 343 F.2d 460, 461 (2d Cir. 1965), in which federal jurisdiction had been based on LMRDA § 101(a), 29 U.S.C. § 411(a):

 
"Under New York law, a union member may enforce in the courts the rights granted to him by the union constitution and by-laws . . . . [citations omitted] . . . Jurisdiction over the state-law claim exists under the principle of pendent jurisdiction."

 Accord, Morrissey v. Curran, supra, 356 F. Supp. at 314; see Schonfeld v. Raftery, 271 F. Supp. 128, 149 (S.D.N.Y.), aff'd, 381 F.2d 446 (2d Cir. 1967).

 It is not entirely clear that here such "a common nucleus of operative fact" exists, for the federal claims based on the LMRDA relate to defendants' allegedly discriminatory misuse of the Union membership lists and newspaper, while plaintiffs' other claims require a construction of the Union constitution and by-laws with respect to the Election Committee nomination period and membership provisions. Nevertheless, this court concludes that under the particular circumstances of this case, in which plaintiffs seek injunctive relief against a variety of allegedly improper practices designed to interfere with the fairness of the pending Union election, a sufficiently common nucleus exists as to justify the conclusion that "considered without regard to their federal or state character, [plaintiffs'] claims are such that [they] would ordinarily be expected to try them in one judicial proceeding." United Mine Workers v. Gibbs, supra, 383 U.S. at 725. Given the substantiality of the federal claims, this court has the power to hear all the claims, id., at 725, and in the exercise of its discretion determines to do so. *fn7" Libutti v. DiBrizzi, supra; Morrissey v. Curran, supra; Allen v. International ...


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