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COMMER v. DISTRICT COUNCIL 37

January 13, 1998

ROY COMMER, Plaintiff, against DISTRICT COUNCIL 37, LOCAL 375, Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Defendants Civil Service Technical Guild, Local 375, District Council 37, American Federation of State, County and Municipal Employees ("AFSCME"), AFL-CIO (the "Local Union") and District Council 37, AFSCME, AFL-CIO ("DC 37" and together with the Local Union, the "Defendants"), have moved to dismiss this action for lack of subject matter jurisdiction, pursuant to Rule 12(b) (1) of the Federal Rules of Civil Procedure. Plaintiff Roy Commer's ("Commer") complaint alleges two causes of action: (1) that the Defendants amended the Local Union's Constitution (the "Local Constitution") in violation of the AFSCME Constitution (the "Amendment Claim"); and (2) that Defendants violated section 411 of the Labor-Management Reporting and Disclosure Act of 1959 (the "LMRDA") by failing to certify his election as president (the "Election Claim"). For the reasons set forth below, Defendants motion to dismiss is granted.

 Prior Proceedings

 Commer commenced this action pro se on November 10, 1997, and on that date filed an Order to Show Cause seeking a preliminary injunction to prevent the Local Union from amending its Constitution. Oral argument was held on November 19, 1997.

 On November 12, 1997, Commer amended his Complaint to claim various election improprieties, and again filed an Order to Show Cause seeking a preliminary injunction to prevent the Local Union from proceeding with the officer elections (the "Election"). Oral argument was held on November 24, 1997.

 On December 16, 1997, Commer filed a third Order to Show Cause, seeking a preliminary injunction to validate the results of the Election and to install him as President of the Local Union. By virtue of this Order to Show Cause, Commer also sought to amend his Complaint to allege the Election Claim, which, as more fully described below, contends that the ballots had been counted and tallied, and the results were announced by the Election Committee, but that the Board of Delegates (the "Board") refused to certify his Election and install him as President. *fn1"

 On December 23, 1997, Defendants filed the instant motion to dismiss. On or about this date, Commer found pro bono counsel to represent him in this action. Oral argument was held on December 31, 1997, at which time the motion was deemed submitted. The motion for preliminary injunction to validate the results of the Election was adjourned pending the disposition of the jurisdictional motion.

 Facts

 When considering Defendants' motion to dismiss for lack of subject matter jurisdiction, all material factual allegations in Commer's Complaint must be accepted as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Atlantic Mutual Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992); Rubin v. Tourneau, Inc., 797 F. Supp. 247, 248 (S.D.N.Y. 1992). The court must examine the substance of the allegations and any other evidence before it in resolving the jurisdictional dispute. Cargill Intern. S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993); Kamen v. A.T.&T. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); Rad Data Communications, Inc. v. Patton Electronics Co., 882 F. Supp. 351, 352 (S.D.N.Y.) (citations omitted), dismissed on other grounds, 64 F.3d 675 (Fed. Cir. 1995). However, the Court will not draw inferences favorable to the party asserting jurisdiction. See Norton v. Larney, 266 U.S. 511, 515, 69 L. Ed. 413, 45 S. Ct. 145 (1925); Atlantic Mutual, 968 F.2d at 198.

 A. The Amendment Claim

 Commer contends that the procedures followed to propose certain amendments to the Local Union membership (the "Membership") did not comply with the procedures set forth in Article XX of the Local Constitution which, in sum, require: (1) submission in writing by a delegate at any meeting of the Board; (2) referral to a special committee for study and report; (3) approval by majority vote of delegates voting at a meeting of the Board; (4) transmittal by mail to each member in good standing a copy of the proposed amendment, together with a ballot; (5) allowance of fifteen days for members to return their ballots; (6) appointment by the Local Union president, at the next meeting of the Board, of at least three tellers to count the ballots; and (7) announcement of results before the end of meeting. Commer contends that the procedures actually followed unfairly prevent the Members' input into the amendment process.

 Defendants, on the other hand, contend that the Local Union fully complied with all constitutional procedures. The amendment at issue here ("Proposed Amendment 6") would eliminate section 6 of Article XIV of the Local Constitution, which provided that: "Nothing in the Constitution shall be construed to prevent direct action by a chapter when members of that chapter alone are affected; however, such departmental matters may be handled by the Board of Delegates." Eliminating the right for a chapter to take "direct action," Commer contends, limits his authority as chapter president to serve his constituency.

 Defendants contend that this amendment was initially proposed by Richard Delio ("Delio") at a delegates' meeting held May 21, 1997. The Constitution Committee, after meetings with interested Members, recommended to the Local Union's Executive Committee on October 7, 1997, that six proposed constitutional changes be adopted. Commer, as a chapter president, is a member of the Executive Committee and attended the October 7 meeting. The Constitution Committee then, on October 15, 1997, reported their recommendation to the Board, and, at the same meeting, the Board adopted the recommendation. The next day, October 16, 1997, the Constitution Committee caused ballots to be sent to the Membership along with a copy and brief explanation of the proposed amendments. The ballots were made returnable on November 5, 1997. *fn2" Proposed amendment 6 was explained as follows:

 
The Constitution Committee recommended this change since this provision is in clear conflict with Article IX Section 45 of the International Constitution which states "No member or group of members or other person or persons shall have the power to act on behalf of or otherwise bind the local union . . . except to the extent authorized in writing by the president of the local union . . . or by the executive board of the local union.

 The Executive Committee decided to count the amendment ballots on Monday, November 24, 1997, since on that same date the Local Union planned to count election ballots.

 Defendants contend that Commer filed a Complaint with the International Union's Judicial Panel (the "Judicial Panel") on October 18, 1997, seeking that they exercise original jurisdiction over the matter. On November 25, 1997, the Judicial Panel granted Commer's request and so notified Commer and Mr. Louis Albano ("Albano"), the incumbent Local Union President.

 B. The Election Claim

 The Election Claim involves an election of officers, chairs of standing committees and delegates to the District Council 37 and Central Labor Council that was initiated in November 1997. In that election, Commer was a candidate for the office of president.

 The Election ballots were mailed on November 5, and were made returnable by November 21, 1997. On November 24, 1997, the Election Committee, assisted by approximately 40 ballot counters and observed by representatives of the various candidates, held an election counting meeting.

 Sometime before 5:00 AM the following morning, and according to the Defendants before the Officer and Chair ballot counting was completed, the Election Committee decided that the ballot counting for positions other than the Officers and Chairs would need to be put-off to a later date. The ballot counting for the Officers and Chairs of the Standing Committees was then completed. The tally sheets were collected from the individual counters. Two members of the Election Committee ...


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