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RADIO-ELECTRONIC OFFICERS UNION, DIST. 3 v. RADIO

January 28, 1993

RADIO-ELECTRONIC OFFICERS UNION, DISTRICT 3, NMEBA, AFL-CIO, Plaintiff,
v.
RADIO OFFICES JOINT EMPLOYMENT COMMITTEE and RADIO OFFICERS UNION VACATION PLAN, Defendants.



The opinion of the court was delivered by: LORETTA A. PRESKA

 Loretta A. Preska, U.S.D.J.

 Plaintiff-intervenor, Jim H. DeLong, has moved to dismiss this action pursuant to Fed. R. Civ. P. 12(h)(3) for lack of subject matter jurisdiction by notice of motion dated August 9, 1991. For the reasons set forth below, the motion is granted, and judgment dismissing this action shall be entered.

 I. Procedural Background

 Plaintiff, Radio-Electronics Officers Union, District 3, NMEBA, AFL-CIO (the union itself is referred to as the "ROU;" the plaintiff suing on behalf of the ROU is referred to as the "Smith-ROU"), *fn1" instituted this lawsuit in the Supreme Court of the State of New York, County of New York, on February 1, 1991 by serving a notice of motion for summary judgment in lieu of complaint upon defendants, the ROU Joint Employment Committee and the ROU Vacation Plan (collectively, the "Plans"), seeking monies allegedly owed by the Plans to the ROU. The Plans subsequently removed the action to this Court by notice of removal dated March 1, 1991; the Plans stated as grounds for removal that the Court had federal question jurisdiction pursuant to 29 U.S.C. § 1132(e)(1) because the Smith-ROU sought to enforce against the Plans trust agreements governed by the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq.

 Mr. DeLong, in his capacity as Secretary-Treasurer of the ROU, *fn2" intervened by stipulation of the parties on April 3, 1991 and thereafter filed a complaint and cross-claim dated April 5, 1991. In the complaint and cross-claim, Mr. DeLong asserted (a) a claim against the Plans for monies owed to the ROU and (b) a cross-claim against the Smith-ROU alleging that this lawsuit was not filed with proper authorization of the ROU and seeking any monies recovered by the Smith-ROU from the Plans. Mr. DeLong's complaint and cross-claim pleaded ERISA as the basis for subject matter jurisdiction in this Court.

 The Smith-ROU subsequently asserted a cross-claim against Mr. DeLong, which the Smith-ROU pleaded as arising under both ERISA and the Labor-Management Reporting and Disclosure Act of 1959 (the "LMRDA"), 29 U.S.C. § 401, et seq., seeking an injunction and damages in connection with the government of the ROU by allegedly unauthorized persons. As explained below, a determination of who is the duly elected president of the ROU underlies not only the Smith-ROU's cross-claim against Mr. DeLong but this entire action. Neither the Smith-ROU, Mr. DeLong, nor the Plans disputes that the Plans owe monies to the ROU; rather, this controversy concerns to whom those monies should be disbursed.

 II. Factual Background3

 In the fall of 1990, the ROU held an election of officers (the "1990 election") by a ninety-day mail ballot under the direction of the American Arbitration Association (the "AAA"). Prior to the vote count, several ballots were set aside as challenged; when the ballots were counted by the AAA on December 3, 1990 for the office of president, Mr. Smith had 89 votes and Thomas Harper had 88 votes. A dispute as to this outcome arose out of the possibility that a ballot in favor of Mr. Harper might have been improvidently set aside; this dispute created two splinter presidencies of the ROU. *fn4"

 A. President Harper: Mr. DeLong's Perspective

 The AAA immediately appointed an arbitrator, Nicholas H. Zumas, to resolve the debate surrounding the 1990 election. On December 4, 1990, Mr. Zumas remanded the controversy to the ROU's District Executive Counsel (the "DEC") then in office for resolution. *fn5"

 On December 15, 1990, the DEC ordered a rerun election for the office of president and for two positions on the DEC which had also been at stake in the 1990 election. The DEC also determined that the incumbents for the three positions would remain in office pending the rerun election. Accordingly, Mr. DeLong maintains that Mr. Harper, the incumbent president, remained president pending the rerun election.

 The ROU membership thereafter affirmed the DEC's decision in a unanimous vote (31 to 0) taken on January 14, 1991 at a membership meeting in Panama City Beach, Florida. Subsequently, the rerun election concluded on March 25, 1991, and Mr. Harper was elected president of the ROU by a vote of 114 to 68. For these ...


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