The opinion of the court was delivered by: Sweet, District Judge.
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.
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
Keller is Executive Committee Chair of Local 375.
Mariano is Treasurer of Local 375.
Pepe is the DC 37 Building Manager.
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.
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
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 ...