The opinion of the court was delivered by: OWEN
Plaintiff Members for a Better Union ("MBU") is a caucus consisting entirely of members of Local 32B-32J ("Local 32B" or "the Local") of the Service Employees International Union ("SEIU") who are opposed to the policies of the incumbent leadership of the Local. Individual plaintiffs Carlos Guzman, Dominick Bentivenga, and Frank Colon are members of the Local and MBU. Carlos Guzman was MBU's candidate for President of Local 32B in 1992 and 1995. Defendant Gus Bevona is the current President of Local 32B, which represents approximately 70,000 building service employees working all shifts 24 hours every day in commercial office and residential buildings in the five boroughs of New York City, in Nassau and Suffolk counties and in northern New Jersey. Local 32B is governed by its own constitution as well as that of SEIU. In November 1996 plaintiffs submitted a series of proposed amendments to the Local 32B constitution for approval by the Local membership. A vote on the proposals was held on February 19, 1997.
On March 18, 1997, plaintiffs filed an amended complaint for declaratory and injunctive relief alleging that the said February 19 vote on the proposed constitutional amendments 1) was conducted in a time and manner which deprived 20% or more of the membership of their right to vote, violating § 101(a)(1) of the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. 411(a)(1);
2) was conducted in a biased, unfair and intimidating manner in violation of LMRDA § 101(a)(1); and 3) the members were not given sufficient information in advance of the vote in violation of LMRDA § 101(a)(1) and (2).
Defendant moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6).
The current litigation is the latest in a long-standing bitter conflict between Local 32B president Gus Bevona and dissident Carlos Guzman and MBU. In Guzman v. Local 32 B-32J, 151 L.R.R.M. 2006 (S.D.N.Y. 1995), the court ruled that Local 32B-32J violated LMRDA 29 U.S.C. § 481(c) by distributing the incumbents slate's pre-election campaign material at union expense and by refusing to provide Guzman with equal access to distribution, and ordered that the Local distribute Guzman's literature as well. Id. at 2008. In Guzman v. Bevona, 90 F.3d 641, 644 (2d Cir. 1996), the Court of Appeals for the Second Circuit affirmed a jury award in favor of Guzman who had sued Bevona and other Local officials after discovering that both he and his wife had been placed under surveillance by Bevona to determine whether Guzman's criticism of the union and the union leadership had been fueled by anti-union management. The jury awarded Guzman $ 100,000 for impairment of his free speech rights and the court ordered all defendants to repay the union treasury the $ 19,343 expended for the surveillance and additionally ordered that all surveillance cease. The Court of Appeals noted in that case that in June 1995, two months before the trial, Guzman was assaulted by several shop stewards and that the union took no disciplinary action against them. Id. at 645.
Plaintiffs first came before me on February 14, 1997 seeking a preliminary injunction staying the proposed February 19 vote on plaintiffs' proposed constitutional amendments which had been scheduled to take place during two separate meetings at 2 p.m. and 6 p.m.. Plaintiffs claimed that the limited voting hours denied 20% of the membership an opportunity to vote because of the members' work shifts. I declined to stay the meeting but, based on the plaintiffs' showing that a meaningful number of the membership would be disenfranchised, I ordered that the vote be held continuously from 2 p.m. to 9 p.m. and that Local 32B "to the greatest degree possible post notices in all building services by its members advising them of the change in hours of the vote." See Jiminez v. Briody, 134 L.R.R.M. 3119, 3121-22 (S.D.N.Y. 1990).
While the vote on the proposed amendments took place on February 19, 1997, plaintiffs, in Count I, claim that Local 32B failed to notify thousands of Local 32B members of the court-ordered extended hours. They also claim that even with the extended hours ordered by the court, the location of the vote and the scheduling of the vote at a time when a large percentage of members were working, deprived approximately 20% of the members of an opportunity to vote, violating LMRDA § 101(a)(1).
Plaintiffs allege in Count III that the vote was tainted by a series of intentional actions taken by the leadership of Local 32B on the day of the vote, which actions were a part of "a continuing effort to stifle and chill the exercise of democratic and free speech rights by the members of Local 32B." Plaintiffs state the following in their complaint:
a) The ballot stated at the top: "THE JOINT EXECUTIVE BOARD HAS UNANIMOUSLY REJECTED THEM [the proposed amendments] AND RECOMMENDS THAT YOU VOTE NO."
b) Members were not provided with private space to mark what was supposed to be a secret ballot.
c) Business agents, delegates and union officers roamed around the area where members were attempting to secretly mark their ballots.
d) Union officers, delegates, and employees electioneered throughout the voting area.
e) Delegates and officers registering members and handing out ballots wore "Vote No" stickers.
f) Insufficient space and personnel were provided during peak periods for registration and voting, resulting in disorderly, long lines ...