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RIVERA

April 28, 1986

MANUEL RIVERA, MILAGROS MATOS, AIDES CORDON, MELIDA UMONZOR, PAULINA DeLEON, IDALIA GONZALEZ, GEORGE YUNDA, and JANZINTO SUAREZ, Plaintiffs, - and - WELFARE FUND OF CAPMAKERS LOCAL 2H; RETIREMENT FUND OF THE CLOTH, HAT AND CAP INDUSTRY OF NEW YORK: and VACATION FUND OF CLOTH, HAT AND CAP INDUSTRY OF NEW YORK, Rule 19 Plaintiffs, MICHAEL FEINSTEIN, individually and as President of Capmakers Union Local 2H, ACTWU; CAPMAKERS LOCAL 2H, ACTWU; ISRAEL ROSENZWEIG; JOSEPH HORN, and BARRY TANNENBAUM, Defendants.


The opinion of the court was delivered by: SWEET

ROBERT W. SWEET, U.S.D.J.

O P I N I O N

Plaintiffs Manuel Rivera ("Rivera"), Idalia Gonzalez ("Gonzalez"), and several other members of Capmakers Local 2H ("Local 2H"), Amalgamated Clothing and Textile Workers Union ("ACTWU") have moved by order to show cause returnable April 11, 1986 for a preliminary injunction pursuant to Rule 65, Fed.R.Civ.P. restraining defendant Michael Feinstein ("Feinstein"), president of Local 2H and several members of the Executive Board of Local 2H from conducting a disciplinary hearing on charges against Gonzalez, and from preventing Rivera from obtaining a key to the office of the Welfare, Retirement & Vacation Funds of Local 2H ("the Funds"), and for leave to file a supplemental complaint pursuant to Rule 15, Fed.R.Civ.P. For the reasons set forth below, the motion for preliminary relief is denied, and leave to serve a supplemental complaint is granted.

 Prior Proceedings

 The initial complaint in this action, filed on November 8, 1985, contained six claims for relief arising from an intra-union dispute concerning Rivera's position as Executive Director of the Funds. The complaint alleged that defendant Feinstein and others, through repeated harassment of Rivera which included removing him from the private office which he had occupied for several years, breached their fiduciary duties as union officers, breached Local 2H's sublease from the Funds, tortiously interfered with Rivera's employment contract with the Funds, and violated his rights to free expression granted by section 101(a)(2) of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(2) and disciplined him for his exercise of these rights in violation of section 609 of the LMRDA, 29 U.S.C. § 529.

 A hearing on the show cause order was held on November 15, 1985, which resulted in the consent of the parties to Rivera's return to his office pending the Fund's determination of his employment status. Although the court determined that the Board of Trustees of the Funds should decide the issues surrounding Rivera's competency in the administration of the Funds, the three union-designated trustees and three employer-designated trustees became deadlocked on these issues and the controversy was submitted to binding arbitration, pursuant to section 302 of the Taft-Hartley Act. These proceedings are currently scheduled for May 5-6, 1986.

 On April 3, 1986, plaintiffs brought a second order to show cause seeking a preliminary injunction and leave to serve a supplemental complaint pursuant to Rule 15, Fed.R.Civ.P. A hearing on this motion was held on April 11, 1986, in which the plaintiffs requested an injunction preventing a disciplinary hearing on charges against Gonzalez, and permitting Rivera to have a key to the external door of the office of the Funds, and permission to add two defendants and two substantive claims to the initial complaint.

 Facts

 This request for a preliminary injunction arises in the context of intra-union political struggle inside local 2H. Rivera, a member of Local 2H and a Fund employee charged with administering contributions to and disbursements from these Funds, made an unsuccessful bid for the presidency of Local 2H, losing to Feinstein in September, 1985, the first election held by the Local since the lifting of the second of two trusteeships imposed by the International ACTWU between December, 1982 and November, 1985. According to Rivera and the Local 2H members who are plaintiffs in this action, Feinstein has conducted a campaign to suppress criticism of the incumbent Local 2H leadership and criticism of his alleged misappropriation of Local 2H funds. According to Feinstein, Rivera has embarked on a campaign to destroy the union since his loss of the September, 1985 election by filing numerous lawsuits against Feinstein and others designed to harm his credibility as union president and launch Rivera's renewed drive for the presidency.

 This motion for preliminary relief concerns three intra-union disputes between the incumbent union leadership and a recently formed "dissent group" within the union. According to Rivera, subsequent to the filing of this action, certain members of Local 2H formed a "rank-and-file caucus" using the name "Obreros de Gorras Para Union Democratica" (in English, "Capmakers for a Democratic Union" or "CDU"), which published a newsletter in March, 1986. The newsletter, distributed to the members of Local 2H, contained four articles concerning an investigation of the September, 1985 election, allegations that Feinstein abused union funds, a discussion of the November 15, 1985 proceedings before this court, and a discussion of the events at the Local 2H meeting on December 4, 1985 which form the basis of the seventh claim for relief in the proposed supplemental complaint. The close of the newsletter instructed members: "To Join Capmakers for a Democratic Union Call INDAGLIA GONZALEZ" at the telephone number supplied.

 At the monthly Executive Board Meeting of Local 2H on March 26, 1986 the Executive Board asked Gonzalez, a union officer, about the newsletter. She disclaimed any knowledge of the Capmakers for a Democratic Union. According to the affidavit of Jack Glass ("Glass"), an Executive Board Member of Local 2H and a Funds Trustee, Gonzalez denied participating in or sponsoring the newsletter, while simultaneously warning the Board of more newsletters to follow. According to Glass, this conduct led him to believe that she was engaging in "dual unionism." On March 27, 1986, Glass filed charges against Gonzalez with Luz Rivera, secretary treasurer of Local 2H claiming that Gonzalez was engaging in dual unionism by urging Local 2H members to join an organization "believed designed to destroy Local 2H," by (1) making distorted and libelous charges against a fellow union officer, (2) creating a false impression of corruption within the union leadership and by (3) misrepresenting the outcome of the November, 1985 preliminary injunctive proceedings before this court. Gonzalez has not filed an affidavit in this action presenting her version of the March 26, 1985 meeting.

 Luz Rivera then notified Gonzalez by letter of March 27, 1986 that a hearing before the Executive Board on those charges would be held on April 10, 1986. On April 9, 1986, Glass withdrew the latter two charges from his complaint against Gonzalez, leaving only the charge of violating her oath of union office by engaging in dual unionism. At Gonzalez' request, this hearing was postponed until April 22, 1986 to permit Gonzalez to petition the union international to take jurisdiction over the dispute.

 The second set of events underlying the motion for injunctive relief concerns the identical issues presented at the November 15, 1985 preliminary injunctive hearing, namely Rivera's access to his place of employment. According to Rivera's affidavit, after his return to his private office, Feinstein changed the locks to the main door of the suite shared by the Funds and the Local 2H offices, preventing Rivera from entering the offices outside normal working hours, or entering when someone with a key is not present. Rivera has produced a November 27, 1985 letter from Israel Rosenberg, an employer-designated trustee, instructing Feinstein to give Rivera keys to the door of the Fund offices as well as keys to his private office. Rivera contends that this blocking of access to his administrative duties has caused a backlog of work and is part of Feinstein's effort to show him as incompetent in the performance of his administration of the Funds.

 The final episode at issue concerns the allegations in the seventh cause of action in Rivera's proposed supplemental complaint. According to Rivera, Feinstein's conduct at the December 4, 1985 Local 2H membership meeting was an intentional and reckless violation of the rights of Local 2H members to participate and vote in union affairs. Rivera contends that he advised Feinstein, who chaired the meeting, that he would make five motions from the meeting floor and requested recognition. Although Rivera handed him written copies of his motions for discussion and vote, Feinstein did not permit debate on these motions but moved to discuss his own motions. Furthermore, he ...


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