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BERNARD v. LOCAL 100

January 5, 1995

CARLYLE BERNARD AND JOHN SIMINO, Plaintiffs, against LOCAL 100, TRANSPORT WORKERS UNION OF AMERICA, Defendant.


The opinion of the court was delivered by: JOHN G. KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiffs, Carlyle Bernard and John Simino, are members of the defendant, Local 100, Transport Workers Union of America ("Local 100"), which represents employees of the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority. The plaintiffs belong to the Coney Island Overhaul Section of the Car Maintenance Division, which is one of fifteen Divisions of Local 100. Plaintiff Bernard was nominated by plaintiff Simino as a candidate for Recording Secretary of the Coney Island Overhaul Section, but has been kept off the ballot for the election now scheduled for Friday, January 6, 1995, because of his failure to comply with Local 100's bylaw limiting candidate eligibility to those members who have attended at least a certain minimum number of the meetings of the Section or Division during the year preceding the nomination.

 The plaintiffs, relying primarily on cases decided under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 401 et seq. (also known as the Landrum-Griffin Act), contend that the meeting attendance rule is an unreasonable restriction on the eligibility of candidates for union office. Title IV specifically deals with eligibility standards for certain union offices and imposes a detailed procedural process under which an election can only be challenged by the Secretary of Labor after it has occurred. Because the union position for which Bernard seeks to run is not covered by Title IV, the plaintiffs seek to read the standards of Title IV into Title I of the LMRDA, codified at 29 U.S.C. § 411 et seq. Title I requires that union members have "equal rights" to nominate candidates and to vote in elections subject to "reasonable rules and regulations in such organization's constitution and bylaws. See 29 U.S.C. § 411(a)(1) (1985). One of the central issues in this case is the degree to which the dictates of Title IV -- with respect to what constitutes reasonable eligibility requirements -- apply under Title I.

 The plaintiffs have moved for a preliminary injunction enjoining the union from barring Bernard from running for office and enjoining the union from conducting the January 6 election until a new ballot, reflecting Bernard's candidacy, is printed. For the reasons explained below, the Court denies the plaintiffs' motion.

 I.

 The plaintiffs' complaint alleges that Local 100 violated Sections 101(a)(1) and (2) of Title I of the LMRDA, codified at 29 U.S.C. § 411(a)(1) and (a)(2), by refusing to permit Bernard to run for union office pursuant to an allegedly unlawful meeting attendance requirement. Bernard previously was nominated by the plaintiff John Simino and was listed as a candidate for Recording Secretary of the Coney Island Overhaul Section of the Car Maintenance Division of Local 100. Both plaintiffs are part of a slate of candidates affiliated with New Directions, a caucus within the union that opposes the incumbent officers. Simino is a candidate for Chair of the Coney Island Overhaul Section and his candidacy is unchallenged.

 Section XIII(e) of Local 100's bylaws requires that candidates for Division or Section office have attended at least five or fifty percent of the combined regular Section and Division meetings held during the twelve month period immediately preceding the month in which nominations are made. Bernard cannot attend Section meetings because they are held after 4:00 p.m. and he works the 4:00 p.m. to 12:00 a.m. shift. Bernard can attend Division meetings because they are held at 10:00 a.m. and 4:00 p.m., but there are only four such meetings a year. The plaintiffs allege that the attendance requirement disqualifies over ninety-five percent of the members in the Car Maintenance Division from running for union office because they work the late shift which prevents them from attending the Section meetings.

 The Transport Workers Union ("TWU") Constitution, which governs Local 100, provides that a member can receive credit for a meeting which the member is unable to attend because of job requirements provided that the member files a written statement of the reason for the non-attendance within thirty days of the meeting. See Article XV, Section 6, of the TWU Constitution. However, the plaintiffs' review of the records of the actual attendance and excuses filed for non-attendance at the Coney Island Overhaul Section and the Car Maintenance Division indicated that only about two per cent of the members were eligible to run for office in October of 1994 because only that percentage had attended sufficient meetings or filed excuses. (Simino Aff. dated Jan. 3, 1995 P 6.) In the period between October, 1993 and October, 1994 there were four meetings of the Car Maintenance Division and nine meetings of the Coney Island Overhaul Section. (Simino Aff. dated Jan. 3, 1995 P 5.) The plaintiffs allege that prospective candidates would have to plan far in advance of the election in order to run for office by attending meetings or submitting excuses.

 In the Fall of this year, the Local 100 Executive Board gave another union member, Robert Johnson, an incumbent, credit for Section meetings that he did not attend. (Esposito Aff. P 7.) (Like Bernard's, Johnson's work shift precludes his attendance at the meetings.) In October, Simino discussed Johnson's case with Local 100's union-wide Recording Secretary, Julia McMillon. McMillon agreed that other members, including Bernard, should and would get credit for Section meetings that they could not attend because of their work schedules in the same way that Johnson did. (Esposito Aff. P 7.)

 Simino nominated Bernard on October 7, 1994 and McMillon issued a ballot reflecting, inter alia, Bernard's candidacy. (Bernard Aff. P 3.) The election was scheduled for December 1. However, on November 23, 1994, McMillon informed Simino that several members' qualifications were being challenged, including Bernard's, and she postponed the Section election until December 15, 1994. (Simino Aff. dated Dec. 13, 1994 PP 5-6.) A new ballot subsequently was posted that omitted Bernard's name. Members of the plaintiffs' slate wrote to the Local 100 Executive Board and to McMillon protesting Bernard's removal from the ballot and complaining that the treatment of Bernard was discriminatory given the treatment of Johnson. The plaintiffs' attorney subsequently wrote to the defendant reiterating the plaintiffs' objections. (Simino Aff. dated Dec. 13, 1994 PP 7-8.)

 By letter dated December 14, 1994, the International Committee on Appeals ("ICA") of the TWU granted an appeal in Johnson's case, reversing the decision of the Local 100 Executive Board and disqualifying Johnson from running for an elective position because of his failure to comply with the meeting attendance requirement. He had neither attended a sufficient number of meetings nor submitted written excuses for his nonattendance.

 Thus, the plaintiffs' original claim in their complaint that Bernard has been treated differently from Johnson and that, therefore, the meeting attendance requirement has been applied in a discriminatory manner, denying the equal rights to nominate and vote protected by Title I, is now moot. The meeting attendance requirement has been applied uniformly; it has prevented Johnson, as well as Bernard, from running for an elective position. There is no candidate that the plaintiffs have brought to the Court's attention who has not been required to comply with the meeting attendance requirement; indeed, all of the New Directions candidates, with the exception of Bernard, have met the requirement. And, all of the candidates from the New Directions slate currently are listed on the ballot with the exception of Bernard.

 The plaintiffs, however, contend that even though the meeting attendance requirement is applied equally to all candidates, and even though all members have equal rights to nominate and vote for all candidates who are eligible, the meeting attendance requirement is unreasonable because it so severely limits the number of members who are eligible to run for office that it ...


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