Trustee's decision was either arbitrary or capricious.
I further find no basis for the contention that delay to the extent attributable to the Trustee misled or prejudiced the union official and employee involved where, as here, a reasonable person would know or should have known that an act of malfeasance had occurred, such as the failure to report the theft by the clerical employee.
Madera also claims that his removal is inconsistent with the fact that the Trustee permitted him to remain as president of the District Council for a time after learning about the embezzlement incident. Madera points out that the Trustee also allowed him to stand for re-election as president on two occasions in the three-year period during which Madera's conduct was under investigation.
Government intervention to take over a union is a hazardous undertaking. For that reason alone, as indicated in part II above, the federal government, represented here by the Trustee, should not prevent anyone from running for office. To do so would contravene the ultimate sovereignty of the employees represented by the union. Thus the public interest was served by the Trustee's proper exercise of restraint with respect to the election process.
It was also served by the immediate removal of Madera, once the Trustee's investigation had been completed.
There is no factual dispute requiring a hearing in connection with Madera's request for a stay. Sufficient facts have been presented to me to permit me to treat the motion for a stay as consolidated with the plenary appeal on the merits. Such treatment is analogous to Fed.R.Civ.P. 65(a)(2), permitting consolidation of a hearing on an application for a preliminary injunction with trial on the merits.
However, since the parties may not have framed their submissions on the stay application with a final ruling on the merits in mind, entry of final judgment dismissing this appeal on the merits will be delayed for a period of forty-five (45) days following issuance of this opinion to permit any party to move for modification with respect to the ultimate merits of the appeal, provided that genuinely new arguments or evidence are provided.
I leave the Trustee's action in place, including the Trustee's recommendation that I consider reinstatement of Madera after six months of suspension, once he makes such an application to me.
My lifting of the emergency stay of the Trustee's suspension making it effective immediately as called for by the Consent Judgment, will, unless itself stayed, cause irreparable injury to the union employee who will be out of a job for at least six months. On the other hand, the interests underlying the trusteeship would be irreparably impaired if mere filing of an appeal can automatically stay suspension imposed for good reason under the Consent Judgment.
This kind of conflict is dealt with in the criteria set forth by the United States Supreme Court in Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987), quoted above. I conclude that lack of significant probability of success on the merits and the strong weight to be given to the public interest would be fatal to relief in the form of a stay of my decision pending appeal.
VINCENT L. BRODERICK, U.S.D.J.
Dated: White Plains, New York
September 13, 1993