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COMMER v. MCENTEE

November 13, 2000

ROY COMMER, PLAINTIFF,
V.
GERALD MCENTEE, JOHN SEFERIAN, THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, DISTRICT COUNCIL 37, AFSCME, STANLEY HILL, MARTIN LUBIN, MARK SHAPLO, ROBERT MEYER, RALPH PEPE, LOUIS ALBANO, ROBERT MARIANO, UMA KUTWAL, MICHELLE KELLER, JOHN DOES 1-30, AND RUDOLPH GIULIANI, AS MAYOR OF THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

  OPINION

Plaintiff Roy Commer ("Commer") has moved pro se for a preliminary injunction reinstating him as president of Civil Service Technical Guild, Local 375 ("Local 375"), and enjoining the defendants from barring him from running for the office of Local 375 president or for any other elective union office, pursuant to Federal Rule of Civil Procedure 65. Defendants Gerald McEntee ("McEntee"), the American Federation of State, County, and Municipal Employees, AFL-CIO ("AFSCME"), John Seferian ("Seferian"), AFSCME District Council 37 ("DC 37"), Robert Mariano ("Mariano"), Uma Kutwal ("Kutwal"), Michelle Keller ("Keller"), and Ralph Pepe ("Pepe") (collectively, the "Defendants"), oppose the motion.*fn1 For the reasons set forth below, the motion will be denied.

The Parties

Commer is a member of Local 375 and was at all relevant times previously the president of the local.

Local 375 is a union representing technical employees of the City of New York.

DC 37 is the regional governing body of AFSCME and is comprised of several dozen local unions.

AFSCME is an international union.

McEntee is President of AFSCME.

Seferian is chairperson of the AFSCME Judicial Panel.

Kutwal is currently Acting President of Local 375 and was at all relevant times previously the First Vice-President of Local 375.

Keller is Executive Committee Chair of Local 375.

Mariano is Treasurer of Local 375.

Pepe is the DC 37 Building Manager.

Prior Proceedings

The instant action was initiated by the filing of a complaint on October 18, 2000.*fn2 The complaint alleges that the Defendants imposed union discipline on Commer, namely, that they suspended him from union office and banned him from running for new office for a two-year period, in retaliation for speech activity protected under Section 101(a)(2) of the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(2). Jurisdiction is alleged pursuant to LMRDA § 102, 29 U.S.C. § 412.

In November 1998, internal union charges were filed against Commer, then-president of Local 375, by Local 375 First Vice-President Kutwal and certain other members of the Local 375 Executive Committee. The AFSCME Judicial Panel assumed original jurisdiction over the case, Judicial Panel Case No. 98-111-A ("JPC 98-111"), on November 12, 1998. Amended charges were filed in this same matter on January 29, 1999.

On June 23, 1999, the AFSCME Trial Officer issued a decision dismissing fifteen of the eighteen charges against Commer. Among the charges sustained by the panel was a charge that Commer had distributed literature in the name of the Guild*fn3 without authorization from an appropriate body, namely, the Local 375 Executive Committee or delegate body, in violation of Article XIX, Section 3 of the Local 375 Constitution, and that by the same conduct he had improperly used union funds in violation of Article X, Section 2(B) of the International Union Constitution. The Trial Officer issued a formal reprimand and warning to Commer against repeating the acts of which he had been found guilty, and ordered that he make restitution to Local 375 for the full cost of the printing and/or mailing of the unauthorized materials mentioned above.

The Trial Officer's decision was affirmed by the Full Judicial Panel on December 8, 1999, and the Full Judicial Panel's decision was affirmed by the Appeals Committee of the AFSCME International Convention on or about June 26-30, 2000.

On January 11, 2000, Kutwal filed new charges against Commer alleging inter alia that he had improperly used union funds to print and distribute an election-related mailing without the permission of the Local 375 Executive Committee or delegate body. On February 2, 2000, Kutwal and other members of the local's Executive Committee filed additional charges against Commer alleging that he had failed to make restitution in accordance with the decision in JPC 98-111 and thereby had violated the AFSCME International Constitution, Article X, Sections 2(F) and 22, by failing to comply with a decision of the Judicial Panel.

The Judicial Panel assumed original jurisdiction over the case, Judicial Panel Case No. 00-13-A ("JPC 00-13"), on February 24, 2000. A hearing was held on April 13, 2000. On May 1, 2000, the Trial Officer, Seferian, issued a decision finding Commer guilty of the charges. Specifically, Seferian concluded that (1) Commer had violated Article XIX, Section 3 of the Local 375 Constitution by expending union funds and distributing an election mailing in the name of the local union without approval from the Executive Committee or the delegate body, and (2) Commer had violated the International Constitution by failing to make restitution to the local union as required by JPC 98-111.

Seferian found "aggravating circumstances" with respect to the first charge because:

[T]he decision in the earlier case [98-111] made it clear to [Commer] that he did not have the unilateral power to authorize such mailings. He admitted that he understood that approval was required but decided to send the mailing without approval because he did not believe he could get the votes for approval. This is the second time he has ignored the constitutional process established by the local's constitution simply because it did not suit him.

Seferian found with respect to the second set of charges that Commer was "guilty of refusal or deliberate failure to carry out a legally ...


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