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April 16, 1981

NEW ACTION COALITION, Marc Pessin, Anne Filardo, Paul Becker and David Weiner, suing individually, and Bruce Markens and Francisca Colon, suing on behalf of themselves and all others similarly situated, Plaintiffs,
LOCAL 2 OF the UNITED FEDERATION OF TEACHERS, Albert Shanker, as President of Local 2; The Local 2 Election Committee; Ray Frankel, as Chairperson of the Local 2 Election Committee; Edward Muir, individually and as Head of the Local2 Safety Committee; William Sigelakis, individually and as Head of the Local 2 Association of Teachers of Social Studies; and the American Arbitration Association, as Agent of Local 2 and its Election Committee, Defendants

The opinion of the court was delivered by: POLLACK


The plaintiffs have applied for preliminary injunctive relief in this suit, pursuant to Rule 65, Fed.R.Civ.P. in a Union election dispute. It appearing that plaintiffs have failed to establish facts indicating probable success on the merits and possible irreparable injury and that there is little factual support for serious questions going to the merits or even a balance of hardships tipping decidedly toward the plaintiffs on this application, preliminary injunctive relief will be denied. The facts follow.

 This suit is one for declaratory and injunctive relief arising under Sections 101 and 401(c) of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 411 and 481(c). The complaint also asserts common law pendent claims. Jurisdiction over the federal causes of action is posited under 29 U.S.C. § 412. The plaintiffs are members of Local 2 of the United Federation of Teachers ("UFT") and sue on behalf of themselves and all others similarly situated. The parent organization of Local 2 is the American Federation of Teachers AFL-CIO.

 The Local is comprised of four divisions and one residual unit. They may be characterized as follows: the Elementary School Division, the Junior High and Intermediate School Division, the Vocational High School Division, the Academic High School Division ("the ACAHS Division") and the Functional Unit.

 The UFT is the collective bargaining agent for approximately 50,000 teachers in New York City public and private schools and conducts elections for officers and members of the Executive Board every two years; their terms begin on July 1st following their election.

 Article V, Section 7 of the UFT Constitution provides that "the Executive Board shall supervise all elections in the manner provided for by the Constitution and shall decide all disputes arising out of such elections." The Executive Board has delegated at least some of its authority to a committee: the Election Committee. All three of the present members of the Election Committee were appointed by the Executive Board. The UFT Constitution does not require that the Election Committee be constituted in any particular way.

 The UFT is presently in the process of conducting its biennial election of officers representing the different Divisions and Executive Board members as well as delegates to the American Federation of Teachers conventions. The election is being conducted by slate balloting. Members of the Union can vote either for a long list of individual candidates or simply vote for a slate of candidates. Traditionally the overwhelming percentage of members vote by slate. This year there are two slates running in the pending election. The incumbent Union leadership traditionally runs a slate under the name of the "Unity Caucus Slate." Plaintiffs organized an opposition slate in the current election under the name of the "New Action coalition".

 Prior to the inception of this lawsuit and the present application for a preliminary injunction, the 1981 election proceedings had reached the stage where the rival slates had been nominated, publicized campaign materials had been circulated by both parties and their candidates, ballots and envelopes to be used in the election had been approved by the Election Committee, the AAA ("American Arbitration Association") had been employed to administer the election pursuant to the AAA Election Rules and to act as agent for the UFT in such administration, the procedures of the AAA had been announced and clarified to the representatives of the bNAC, the master list used for the mailing was made available for inspection by NAC with the approval of the UFT Ballot Committee, and 75,688 ballots had been mailed and distributed to UFT members on March 24, 1981 by the AAA. This distribution was made in different colors for each of the four Divisions and the Functional Unit. All ballots were required to be returned to the AAA by 8 A.M. April 10, 1981. Counting of the ballots began at 9 A.M. on April 10, 1981 and has since been substantially completed except for questions to be answered by the Arbitrator. However, announcement of the results of the count and resolution of the remaining questions were temporarily stayed by the Court, as indicated hereafter.

 Plaintiffs commenced this suit by the filing of their complaint shortly after 4 P.M. on April 8, 1981 and thereupon applied for a temporary restraining order against completion of the election in progress, including the tally of the ballots. The application for a TRO was made ex parte and at 5:15 P.M. the Court made the application for a TRO returnable at 10 A.M. on April 10, 1981 with requirement of service of notice thereof on defendants by noon time of April 9, 1981.

 On April 10, 1981 at 10 o'clock in the forenoon the Court heard counsel on an application for the temporary restraining order sought and after hearing counsel, the Court permitted the AAA's administration of the electoral process to proceed without restraint but directed the AAA to refrain from officially or unofficially completing and announcing the result of any tally of the acceptable ballots or resolution of controverted ballots until further order of the Court. The application for a preliminary injunction was set down for hearing to commence at 11:15 A.M. on April 13, 1981. The AAA processed all ballots that had been delivered by the Post Office to the AAA in the presence of observers of both sides of this controversy except questionable ballots which were put to one side to be taken up with the designated Arbitrator.

 The plaintiffs here contend that there has been a discriminatory use of Union lists by defendants in violation of Section 401(c) of the LMRDA, 29 U.S.C. § 481(c) entitling plaintiffs to enjoin and void the election. They contend that since the personnel of the Election Committee named by the Union's Executive Committee happened to be candidates of only one slate in this election, that set-up violates Title I, Section 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a) (1). They say further that the Election Committee and the AAA failed to insure that each member of the Union who cast a ballot had their vote counted. In consequence the plaintiffs, contend that they are entitled to injunctive relief on traditional grounds for the issuance of a preliminary injunction.

 The defendants on the other hand contend that the Court does not have jurisdiction over the asserted violations of the LMRDA because this application was made after the election was already in progress; that there was no pre- election discrimination against the the NAC as alleged in respect to the availability of any lists of voters used by defendants; that the NAC had in fact reached every voter in the ACAHS Division by a succession of four or five separate leaflets that had been distributed serially to all members of the High School Division, commencing early in March through the first week of April 1981, as well as by the publication and transmission within a few days before the balloting of the UFT publication New York Teacher, mailed to every eligible voter on March 20, 1981, espousing NAC's points of view on the issues. The defendants assert that the sole remedy with respect to the plaintiffs' contentions is vested by Title IV of the statute in the Secretary of Labor 29 U.S.C. § 481 et seq.

 Apart from their jurisdictional challenge, the defendants assert that the Election Committee, as constituted, does not violate Title I of LMRDA, 29 U.S.C. § 411 et seq.; that it is premature to allege that the Election Committee and the AAA have failed to insure that votes cast by members will not be counted; and that plaintiffs do not and cannot meet the standards to justify issuance of preliminary injunctive relief.

 The issues thus raised have been tried at a Bench trial at which the witnesses were heard and their credibility appraised and documentary evidence was adduced.


 The provisions of the LMRDA have two distinct branches for relief of conduct violative of the election process.

 Title I, Section 101(a)(1), 29 U.S.C. § 411(a)(1) guarantees that:

every member of a labor organization shall have equal rights and privileges ... to nominate candidates, to vote in elections or referendums of the labor organization ... and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and by-laws.

 In Calhoon v. Harvey, 379 U.S. 134, 85 S. Ct. 292, 13 L. Ed. 2d 190 (1964) the Supreme Court construed Section 101(a)(1) as "no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote." 370 U.S., at 139, 85 S. Ct. at 295-296 (emphasis added). The Supreme Court held that a federal district court had no jurisdiction over a suit brought by Union members under Sections 101(a)(1) and 102, 29 U.S.C. §§ 411 and 412, challenging the Union's eligibility qualifications for candidacy, on the ground that there was no discrimination against the complaining Union members. Id., at 139, 85 S. Ct. at 295-296; See also Gurton v. Arons, 339 F.2d 371 (2d Cir. 1964); Schonfeld v. Penza, 477 F.2d 899, 902-03 (2d Cir. 1973). "The provisions of the LMRDA were not intended to constitute an open invitation to ...

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