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MORAN v. WALSH

April 1, 1991

THOMAS MORAN, ET AL., PLAINTIFFS,
v.
JOHN WALSH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Edelstein, District Judge:

OPINION & ORDER

Plaintiffs move for a preliminary injunction ordering (i) defendants to conduct the next union membership meeting during proscribed month, (ii) to have a proposed by-law voted on at next union meeting, and (iii) to have access to, photocopy, and distribute union documents to the union membership prior to the next union meeting. For reasons to be discussed, plaintiffs' motion is granted.

I. Background

The adversaries in this litigation, no strangers to the Southern District of New York,*fn1 are rival factions of defendant Local 1-2, Utility Workers of America ("Local 1-2"), which represents approximately 13,000 employees of Consolidated Edison Company of New York ("Con Edison"). Plaintiffs are part of a group of Local 1-2 members called Members' Voice. Defendants are members of the ruling slate of Local 1-2, specifically Walsh, its President, Goodman, its business agent, Geller, as fiduciary of Local 1-2, and Burkhart, chairman of Local 1-2's by-law committee, all of whom assumed their current offices on September 5, 1990.

This particular dispute involves two matters: the timing and consideration of plaintiff Moran's submission of a series of proposed electoral amendments to the Local 1-2 by-laws, and a series of votes on six months expenditures made by the current leadership of Local 1-2. Each of these matters must be voted on by the membership of Local 1-2, and the timing and procedure for those votes is at issue.

In order for a member of Local 1-2 to affect a change in the by-laws, he must submit the proposed change to be read at a membership meeting of Local 1-2. By Article V, Section 1 of the Local 1-2 by-laws, adopted in 1971, such membership meetings must be held four times per year. For the 19 years between 1971 and September, 1990, Local 1-2's quarterly membership meetings were held in February, April, September, and November. By Article V, Section 2, notice of such meetings shall be posted on employer bulletin boards, and in the Local 1-2 publication The Record. Further, the 19 year practice of Local 1-2 was that notice of a membership meeting by way of The Record would be mailed at least 15 days in advance of the meeting.*fn2

The relevant defendants first assumed office on September 5, 1990 after their slate was elected. Breaking with Local 1-2's previous 19 years of practice, the new administration called the next membership meeting for October 2, 1990, and did not advertise that meeting in The Record.

Article XXIV of the Local 1-2 Constitution sets out the process that must be followed to amend its by-laws. First, a proposal must be submitted to the secretary-treasurer to be read at a regular membership meeting (the "first reading"). The proposal must then be submitted to the by-law committee for review and comment (the "by-law committee review"). At the next membership meeting, the report of the by-law committee is read to the membership (the "second reading"). At the third membership meeting, the proposal shall be voted on by secret ballot by the whole membership (the "vote"). A two-thirds majority is necessary for adoption.

It was at the October, 1990 meeting that plaintiff Walsh began the three meeting process to have his proposed by-law amendment considered for a vote by the membership of Local 1-2 (the "original proposal"). The original proposal was given its first reading at that meeting. On November 2, 1990, Burkhart, chairman of the by-law committee, communicated questions and comments to Moran about the original proposal. Among the comments of the by-law committee was a question about the specific process of group voting that Moran proposed.

Moran responded by submitting a series of amended by-laws to the by-law committee on November 14, 1990, and withdrew his original set of by-law proposals (the "amended proposal"). The original proposal's withdrawal was confirmed by Burkhart on December 14, 1990. Local 1-2 then called its next membership meeting for December 18, 1990, for which the membership was given only six days advance notice. On December 18, 1990, prior to that night's meeting, Moran advised Burkhart that he did not want his original proposal withdrawn, but to be considered as amending the original proposal. No quorum was met at the December 18, 1990 meeting, and that meeting was postponed.

On January 7, 1991, Moran informed Burkhart by letter that he considered the original proposal amended and not withdrawn, so that it would be given a second reading at the next membership meeting (the "amended original proposal"). The next membership meeting was scheduled for March 7, 1991. Moran was not advised in advance of March 7, 1991 as to how his proposal would be treated at that meeting.

In addition to Moran's proposal, the membership was also scheduled to vote to approve legal and consulting expenses (the "expenditures") made by Local 1-2 during the previous six months. Between September, 1990, when the Walsh administration assumed office, and March, 1991, no reports of Local 1-2's financial condition were made to the membership. In early 1991 plaintiffs sought access to minutes of Local 1-2 board meetings and financial records about the expenditures in advance of the March membership meeting (the "documents"). Defendants refused to allow plaintiffs access to the documents. This litigation followed.

On March 5, 1991, this Court entered a temporary restraining order requiring the by-law committee to give Moran's amended original proposal its second reading at the March 7, 1991 meeting. This Court enjoined Local 1-2 from voting on the expenditures until plaintiffs had an opportunity to review and copy the requested documents, and further ordered Local 1-2 to permit the plaintiffs to examine and copy the documents sought by plaintiffs.*fn3 The Court set a hearing date for March 12, 1991.

On March 8, 1991, plaintiffs sought and this Court signed (by Haight, J., sitting in Part I), an order directing defendants to show cause why they should not be held in contempt of the March 5, 1991 order directing them to allow plaintiffs to review and copy the documents. Defendants' position was that the March 5, 1991 order did not permit plaintiffs to photocopy the documents, but only to review them and hand copy them. That order was made returnable on March 12, 1991, the date this Court originally set for the hearing on plaintiff's preliminary injunction. On March 12, 1991, this Court held the hearing to consider plaintiff's applications for preliminary injunctive relief, and for contempt.

At that hearing, this Court directed defendants to make the documents available to plaintiffs only, and not for full dissemination to the membership, pending the parties' submission of proposed protective orders that set out procedures to limit the dissemination of the documents. This Court also directed the parties to submit proposed findings of fact and conclusions of law. On March 22, 1991, the Court held a further hearing on the subject of the dissemination of the documents.

II. Discussion

In this circuit, it is well settled that in order for a movant to obtain a preliminary injunction, he must demonstrate (a) irreparable harm, and (b) either (i) likelihood of success on the merits, or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly towards the movant requesting the preliminary injunctive relief. Since plaintiffs demonstrate irreparable harm and sufficiently serious questions going to the merits of their application to make them a fair ground for litigation and a balance of hardships tipping decidedly in their favor, a preliminary injunction should issue.

Plaintiffs allege that defendants failure to follow the nineteen-year old procedure of holding Local 1-2's membership meetings during the months of February, April, September, and November, combined with the lack of proper notice to the membership of the scheduled meetings, has deprived the membership of its right to vote on union business, thus constituting irreparable harm. Additionally, plaintiffs argue that defendants failure to allow plaintiffs to inspect the documents prior to the meeting where those expenditures were to be voted deprives them of their right to be informed about union business, and constitutes irreparable harm.

Further, plaintiffs argue that these matters constitute sufficiently serious questions going to the merits to warrant injunctive relief, since defendant's actions involving the scheduling of the meetings and refusal to allow plaintiffs to inspect the documents violate federal law, and Local 1-2's by-laws.

In the context of a labor dispute involving the consideration and voting on union business, it is clear in this circuit that:

  "[T]he loss of rights of union members to full
  and equal participation in the affairs of a union
  is the type of injury which the courts have
  historically prevented ...

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