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Johnson v. Kay

decided: October 25, 1988.

GEORGIANNA JOHNSON, GWENDOLYN GITTENS, SARA WEST, SYLVIA THOMPSON, GERARD DESPINOSSE, DOROTHY BUTLER AND EVELYN GERVAIS, PLAINTIFFS-APPELLEES,
v.
EDWARD KAY, MARSHALL GARCIA, DENNIS RIVERA, EUSTACE JARRETT, SYLVIA GRANT-GUTIERREZ, CARLTON YEARWOOD AND ANGELA DOYLE, BETTY HUGHLEY, KATHERINE ABELSON, DALTON MAYFIELD AND AIDA GARCIA, DEFENDANTS-APPELLANTS



Appeal from an order of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge), enjoining defendants from using union staff and other resources to promote the passage of proposed amendments to the union's constitution and requiring the union to pay for two mailings by the president of the union to union members to allow her to express her opposition to the proposed amendments. Because the district court had jurisdiction over plaintiff's claims and did not abuse its discretion in granting the preliminary injunction, we affirm.

Van Graafeiland, Newman and Winter, Circuit Judges.

Author: Winter

WINTER, Circuit Judge:

This appeal from the grant of an injunction concerning the use of a union's resources in a referendum arises out of a struggle for power between the President and Executive Council of an 80,000 member local union. It raises several issues. The threshold question turns on whether subject matter jurisdiction exists under either Section 102 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 412 (1982), or Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 (1982), that justifies an assertion of pendent jurisdiction over plaintiffs'*fn1 state law claims. Second, because we conclude that the district court did have jurisdiction, we must decide whether the case is moot because the events with which the injunction was concerned have occurred. Third, we must determine whether the union itself should have been joined as a party. Finally, we address whether Judge Sweet abused his discretion in granting the preliminary injunction.

BACKGROUND

A. Allegations of the Complaint

The jurisdictional issue requires us to examine the facts alleged by plaintiffs in the First Amended and Supplemental Verified Complaint filed on September 15, 1987. Those allegations follow.

Local 1199, Drug, Hospital and Health Care Employees Union (sometimes the "union"), an affiliate of the International Retail, Wholesale and Department Stores Union ("RWDSU"), AFL-CIO, is a labor organization that represents approximately 80,000 hospital workers in New York City and surrounding counties. Under Local 1199's constitution, the union is governed by a President and an Executive Council consisting of all the officers of the union, including the President. In May 1986, plaintiff Georgianna Johnson and all of the defendants were elected as members of the "Save our Union" slate pledged to reform and democratize the union. Johnson was elected President, while the others assumed various posts as officers of the union. All became members of the Executive Council.

For about a year, President Johnson and the Executive Council functioned smoothly together. Beginning in the spring of 1987, however, Johnson became convinced that Edward Kay, the union's Secretary-Treasurer, had begun to usurp her powers under the union's constitution. She also learned that Kay was not fulfilling his constitutional responsibilities as Secretary-Treasurer of Local 1199 but had instead delegated those responsibilities to another officer. A power struggle ensued between Johnson and the Executive Council, led by Kay. Kay told Johnson that he would not tolerate her exercising the constitutional responsibilities of her office. Kay had in fact begun to usurp some of these duties, such as hiring staff and calling and chairing union meetings.

When Johnson sought advice from the union's general counsel regarding her constitutional powers, the union's lawyer did not respond. She then sought advice from outside counsel, whom she invited to Executive Council meetings. The Executive Council attempted to bar Johnson's lawyer from its meetings and voted not to disburse any union funds to pay Johnson's lawyer. At an Executive Council meeting held August 28, 1987, a member of the Council rose as if to strike Johnson. When that altercation was broken up, the same member attempted to assault Johnson's executive assistant. On August 31, Kay responded to a memorandum Johnson had written to him concerning his failure to fulfill his constitutional duties as Secretary-Treasurer. Kay told Johnson that he "would burn Local 1199 headquarters to the ground before he would relinquish control" of the union to her.

At the Executive Council meeting held on September 4, 1987, in an incident planned and directed by Kay and the other defendants, approximately thirty-five local organizers and staff members invaded the meeting room, stood around the meeting table and glared at Johnson. This action was contrary to the union's policy that such meetings are not open to organizers, staff and members other than those invited to conduct particular business. Realizing that the meeting could not go on under those circumstances, Johnson adjourned the meeting and left the room. The intruders refused to leave the executive offices of the union upon Johnson's orders, but did leave at Kay's request.

After Johnson had adjourned the meeting and left the room, Kay reconvened the meeting. Kay and the other defendants then "schemed and plotted to disrupt Division Delegate Assembly meetings scheduled for September 8, 9, and 10 by having their supporters crowd the microphones, . . . thereby making it physically impossible for any Johnson supporters to address the meetings." Later, Kay and his supporters planned and arranged for members not entitled to attend Division Delegate Assemblies to come to the meetings for the purpose of disrupting them. Because of the size and structure of Local 1199, Division Delegate Assemblies are the only vehicle other than elections to office for rank and file members to participate directly in union decision making.

On September 8, 1987, Local 1199, Johnson and five union members filed a complaint in the Southern District of New York, alleging federal question jurisdiction under Section 102 of LMRDA, 29 U.S.C. § 412; Section 301 of LMRA, 29 U.S.C. § 185; and pendent jurisdiction. Plaintiffs alleged violations of Section 101(a)(1) and (2) of LMRDA, 29 U.S.C. § 411(a)(1) and (2), and of state law based on the union's constitution, stemming from defendants' alleged intimidation tactics and interference with plaintiffs' exercise of their membership rights. Kay and five other members of the Executive Council were named as defendants. The complaint sought preliminary and permanent injunctive relief, a declaratory judgment and damages.

On the same day, Johnson attended and chaired the Delegate Assembly meeting of the union's Hospital Division. Approximately six hundred people attended the meeting, which at times was raucous. At one point Kay called Johnson a name. Johnson ignored the insult, and, shortly thereafter, a delegate called Kay a name. Johnson spoke and was cheered by the delegates. Kay and the other defendants were booed. During the meeting, while a delegate was waiting to speak at a floor microphone, one of the defendants ran off the platform and grabbed the microphone from the delegate. The delegate wrestled the microphone back from the defendant and denounced him.

On September 10, 1987, Johnson and the other officers of the union attended the Guild Division Delegate Assembly, at which approximately two hundred people were present. Johnson spoke at the meeting. Immediately after she finished answering a question, a fuse blew and the microphones went dead. Johnson stepped off the stage and continued to address the delegates. While she was speaking, one of the defendants jumped off the stage and approached her. Delegates pushed toward the defendant, who had to be pulled back onto the stage by the other officers. Next, while delegates remained crowded close to the stage, another defendant jumped off the stage and charged at a delegate. The delegate stood his ground. The defendant returned to the stage, then jumped off again and moved menacingly toward the same delegate. The other union officers had to restrain the defendant physically from assaulting the delegate. Shortly thereafter, the police arrived. Johnson asked them to leave, explaining that though the meeting was loud, the police were not needed.

In early September, the Executive Council initiated action on extensive amendments to Local 1199's constitution. If approved, these amendments would substantially decrease the power of the President while increasing the power of the Executive Council. Johnson opposed these amendments.

Since becoming President of Local 1199, Johnson has published a column in the union's monthly newspaper, the Local 1199 News. On Tuesday, September 8, 1987, Johnson had a copy of her column for the September issue of the Local 1199 News delivered to the office of the appointed staff member who was the editor of the paper. Attached to the column was a memorandum directing the editor to print the column exactly as Johnson wrote it, in English and Spanish, on the first and last pages of the newspaper. However, the editor had not been in her office all week, and on Wednesday, September 9, Johnson also sent a copy of the column to the editor's house, but was informed that it could not be delivered because no one was home.

On Thursday, September 10, another copy of the column, along with a memorandum directing that the September issue of the newspaper containing the column be issued forthwith, was placed under the editor's office door. On Friday, September 11, Johnson received copies of eight resolutions that had been passed by the Executive Council on September 10, 1987. In "Resolution #5," the Executive Council asserted its exclusive control over the Local 1199 News. This Resolution specifically stated that it was the sole authority of one ...


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