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SMITH v. BOWERS

September 30, 2004.

ERNEST L. SMITH, JR., DARRYL PAYNE, JOHN BLOM, RICHARD CEPHAS, ROBERT DICKEY, TONY PERLSTEIN, LEONARD RILEY, ROBERTA SILVER, ALVIN SOILEAU, BEVERLY WOODS, and DIEGO MARTINEZ, Plaintiffs,
v.
JOHN BOWERS, as President of the INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Defendant, and UNITED STATES MARITIME ALLIANCE, LTD. Defendant-Intervenor.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

Plaintiffs Ernest L. Smith, Jr. ("Smith"), Darryl Payne, John Blom, Richard Cephas, Robert Dickey ("Dickey"), Tony Perlstein, Leonard Riley, Roberta Silver ("Silver"), Alvin Scileau, Beverly Woods, and Diego Martinez (collectively, "Plaintiffs")*fn1 have moved the Court for a preliminary injunction pursuant to Fed.R. Civ. P. 65: (1) prohibiting defendants International Longshoremen's Association, AFL-CIO "ILA" or the "Union" and Defendant-Intervenor United States Maritime Alliance, Ltd. "USMX") (collectively, "Defendants"), from implementing or enforcing the Master Contract negotiated between the ILA and USMX and submitted to the membership of the ILA for a ratification vote on June 8, 2004, pending trial of this matter; (2) enjoining the ILA from taking any action to discipline any of the Plaintiffs for any conduct concerning the Master Contract ratification vote or their participation in the instant suit; and (3) directing the ILA to re-run the Master Contract ratification vote in a manner that protects Plaintiffs' and other ILA members' legal rights.

For the reasons discussed below, the Court denies Plaintiffs' motion. It concludes that while Plaintiffs are not barred by the Norris-LaGuardia Act from bringing suit, and are also not subject to the jurisdictional bar articulated in Members for a Better Union v. Bevona, 152 F.3d 58 (2d Cir. 1998), they have failed to demonstrate a clear likelihood of success on the merits, irreparable harm, or proof that the balance of hardships tips decidedly in their favor at this preliminary stage of the proceedings.

  I. FACTUAL BACKGROUND

  Plaintiffs are members of both the ILA and of individual ILA Locals. Plaintiffs' lawsuit arises out of a ratification vote called and conducted by the ILA on June 8, 2004 to approve a global six-year Master Contract ("the Master Contract") governing the relationship between the Union and the shipping industry. Plaintiffs primarily allege that the vote was conducted in violation of Section 101(a)(1) of the Labor Management Reporting Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(1), though they also assert claims that impermissible retaliation against them has occurred or is threatened and that the Union violated its duty of fair representation through the conduct of the vote. LMRDA § 101(a)(1) states that:
Every member of a Labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the Labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws.
  Plaintiffs allege that § 101(a)(1) and the Union's duty of fair representation were violated when the ILA, either directly or by sanctioning violative activities conducted by locals, completely disenfranchised members of three locals, provided inadequate notice and secrecy to voters in other locals, and coerced members of yet other locals to vote in favor of the Master Contract.

  The Master Contract was intended to cover the terms and conditions of employment for the over 10,000 members of the Union for a six-year period beginning on October 1, 2004. Transcript of Hearing on Plaintiffs' Motion for Preliminary Injunction on September 22 and 23, 2004 ("Hr'g Tr.") at 122-23). The union covers longshoremen throughout the East and Gulf Coasts; longshoremen on the West Coast are members of a different union, the ILWC. According to briefings submitted by the ILA and USMX, and testimony given by witnesses called by Defendants at the Court's hearing on this matter on September 22 and 23, 2004, negotiations for the Master Contract between ILA and USMX, the industry consortium formed in part to negotiate with ILA, began well before the scheduled September 30, 2004 expiration date of the current contract. Negotiations began early in order to make certain that a contract was in place at all times, thus avoiding the labor force disruptions that occurred on the West Coast upon expiration of the ILWU's contract. (Hr'g Tr. at 141-42.) Negotiations resulted in a proposed Master Contract that was approved by the ILA's Wage Scale Committee on March 23, 2004. (See Declaration of Robert Bowers, dated September 14, 2004 "Bowers Decl.") ¶ 3.)

  The Master Contract itself provided that the contract would be submitted to all ILA members in good standing for a vote; the ILA distributed the Master Contract along with a Letter dated May 5, 2004. (see ILA Proposed Master Contract, submitted as Plaintiff's Exhibit 1 at September 22, 2004 Hearing, indicating that the ratification vote would take place on June 8, 2004, from 6 AM to 6 PM. According to undisputed testimony given by ILA Secretary-Treasurer Robert Gleason ("Gleason"), notices of the intended voting date and time were distributed by the ILA using two different methods: first, it sent copies of the proposed Master Contract, along with a letter discussing the planned vote, to all active union members who were enrolled in the Union's Managed Health Care Trust Fund (a/k/a "MILA"), as well as to other Union members, including members in the New York-New Jersey area, whose names were on ILA mailing lists. (Hr'g Tr. at 117-18.) This process resulted in mailings going out to between 50 and 90 percent of the ILA membership eligible to vote, because not all locals subscribed to MILA for health care, and because union members had to work at least 700 hours in a given year to qualify for MILA and appear on MILA's mailing list. (Hr'g Tr. at 17, 123.) The Union also allegedly sent out additional copies of the May pre-election mailing to all locals and directed those locals to send the notices out using their own mailing lists. According to Gleason, the ILA could not send out notices to all ILA members because the locals are, and have always been, responsible for maintaining membership rolls for the Union. Gleason defended the use of the MILA list to accomplish a direct mailing as a "belt-and-suspenders" approach to notifying members of the vote, since the ILA had notified members of all prior contract ratification votes merely by sending copies of the proposed contracts to locals for distribution to ILA members.*fn2 (Hr'g Tr. at 121-22.)

  The ILA left the task of actually administering the elections to each of the locals, as it had done for all prior elections. It is unclear from the record whether the ILA undertook any efforts on or before June 8 to ensure that all locals were holding votes during the designated times and had provided proper notice to union members, though the ILA maintains that the locals were well-informed of the Union's election plans. It is clear, however, that the national ILA mailing, by itself, could not provide full notice of the details of locals' votes, since the mailing did not contain any information concerning where various locals' votes were to be held. Thus, it is certainly possible that some union members who were not members of MILA, and whose locals were lax in their responsibilities, received no notice of the vote, and that still others were aware of the ILA's intended voting date and time through the MILA mailing, but not of the voting location designated by their locals, even while the majority of members were at least aware of the ILA's intended voting schedule.

  Several aspects of the conduct of the vote on June 8 are sharply disputed. Members of several locals claimed to experience or personally observe coercive tactics and improper supervision of voting and vote-counting at a Holiday Inn in Newark, New Jersey, the polling site used by Locals 1235, 1804-1, and 1. Plaintiffs focused their submissions and testimony on alleged improper tactics at the polling room used by Local 1235. These tactics purportedly included coercive conversations with those who were preparing to vote or with those who were observed voting against the contract, including Martinez (Hr'g Tr. at 42-44); the looming presence of various local leaders, including Local 1235 President Albert Cernadas ("Cernadas"); and resistance to outside observation of the voting process and the early and improper counting of votes, as allegedly observed by plaintiffs Dickey and Silver. (Hr'g Tr. at 60-64.) Plaintiffs claim that the local members' fear of repercussions in Local 1235 was well-justified, introducing for atmospherics evidence that Harold Daggett ("Daggett"), the President of Local 1804-1, which was holding votes in the same hotel as Local 1235, was indicted on July 24, 2004 along with Arthur Coffey ("Coffey"), the vice-president of the South East and Gulf Coast Region of the ILA and president of two ILA locals, for attempting to conspire to keep the Genovese crime family in control of the ILA. (See Press Release, United States Attorney's Office for the Eastern District of New York, Two Leaders of the International Longshoremen's Association Affiliated with the Genovese Family Indicted for Extortion ("Press Release"), attached as Exhibit 12 to Declaration of Daniel R. Bright dated Aug. 18, 2004.)

  The ILA strongly disputes Plaintiffs' claims of impropriety through testimony by Vincent Aulisi ("Aulisi"), Secretary-Treasurer of Local 1235, and Jose Caseis ("Caseis"), member of Local 1235's executive committee, and through affidavit testimony of Cernadas. Aulisi admitted that those who supported the Master Contract may have spoken publicly in favor of it while in the voting room, but insisted that, to his knowledge, no one was coerced or told to vote for the contract. (Hr'g Tr. at 72-73.) He also insisted that there was adequate space in the room for members to vote secretly. (Id. at 76.) Caseis admitted to personally encouraging Martinez to vote for the contract when he observed Martinez intending to cast a "no" vote. (Hr'g Tr. at 91-99.) He insisted, however, that he never attempted to coerce Martinez, nor did he stop Martinez from putting his "no" vote into the ballot box or fail to count votes of Martinez and others who voted against the contract when he became involved in the voting count. (Hr'g Tr. at 97-100.)

  Plaintiffs' other allegations of wrongdoing primarily concern Locals 1408, 1526, and 2047. All of these locals scheduled their votes for a single meeting occurring after 6 PM on June 8, pursuant to notices given by the locals to their members. According to Plaintiffs, these locals violated their members' LMRDA rights by failing to give them the opportunity to vote between 6 AM and 6 PM on June 8, as all other locals had done. According to Smith, who was also an officer of Local 1408, the leadership of the local realized only at midday on the 8th that their voting procedures would be inconsistent with the ILA's mandate. Gleason stated that he personally warned Local 1408, when Smith called him that afternoon, that votes taken after 6 PM might not be counted. (Hr'g Tr. at 118-19.) Local 1408's President, however, was informed by the Union's Southeast District Council, that the votes would count. They therefore decided to proceed with a late vote, though not before calling Gleason to inform him of that fact. Gleason testified that he told the Local that the district council had no ability to make decisions regarding the conduct of the election, and informed them that he would have to consult with ILA lawyers to determine what to do if they proceeded with a late vote. (Hr'g Tr. at 119-20.) In the confusion, votes were cast well after 6 PM, and few members were present for the actual vote. Locals 1526 and 2047 also conducted their votes after 6 PM on that date.

  The ILA reported its tabulation of the results of the ratification vote on June 14, 2004, concluding that the contract had been ratified by a vote of 5084 to 3920, with a further 131 votes being tabulated as "void." Results of late votes conducted by Locals 1526 and 2047 were initially included in the vote totals, with Local 1526 reported to have approved the contract by a vote of 180 to 25, and Local 2047 reported to have approved the contract by a vote of 29 to 9. (See International Longshoremen's Association, AFL-CIO, Ratification Vote Results (June 14, 2004), http://ilaunion.org/ratificationvoteresults.asp ("Ratification Vote Results"), attached as Exhibit 16 to Declaration of Daniel R. Bright dated Aug. 18, 2004.) Both of the locals thus reported low turnout, based on estimated total union membership of approximately 700 in Local 1526 and 177 in Local 2047. The approval rates reported by the union varied greatly by local. Locals in Maryland, Virginia, and South Carolina, for example, resoundingly rejected the proposed contract. Votes were split more evenly in Florida, with the exception of Local 1526 and two locals headed and controlled by Coffey. (See id.; Press Release, Bright Decl. Ex. 12.) The votes in those locals, Local 1922 and 1922-1, were a lopsided 172 to 6 and 210 to 4, respectively. (See Ratification Vote Results, Bright Decl. Ex. 16.) No votes from Local 1408 were counted in the tally announced on June 14. Votes in the New York-area locals were reported as follows: a Bayonne local which was under federal supervision voted against the contract 31 to 71, while the locals that voted together in the Newark Holiday Inn all approved the contract by significant margins, Local 1235 by a vote of 426 to 105, Local 1 by a vote of 564 to 62, and Local 1804-1, the local headed by accused mobster Daggett, by a vote of 296 to 4.

  Recriminations, allegations of malfeasance, and calls for a re-vote did not take long to materialize following the completion of the election on June 8. On June 10, 2004, members of Local 1408 filed a petition with the Union seeking an opportunity to vote on the Master Contract. (See Petition to Redress, attached as Exhibit 5 to Complaint.)*fn3 The petition was followed by a June 30 letter from Kennedy, Schwartz, & Cure, the law firm currently representing Plaintiffs, detailing a number of alleged voting improprieties arising out of the June 3 election. (See Letter from Susan M. Jennik, Kennedy, Schwartz & Cure, P.C., to John Bowers, President, International Longshoremen's Association, AFL-CIO June 30, 2004), attached as Exhibit 6 to Complaint.) The letter stated that it was being sent on behalf of an organization entitled "Concerned ILA Rank and File Members," which included all but two of the current Plaintiffs, in response to an ILA letter dated June 14, 2004.

  On July 12, 2004, the ILA sent its response to the June 30th Letter. (See Letter from John Bowers, President, International Longshoremen's Association, AFL-CIO, to Susan M. Jennik, Kennedy, Schwartz & Cure, P.C. (July 12, 2004) ("Bowers Letter"), attached as Exhibit 2 to Complaint.) The letter stated first that the ILA did not maintain local-by-local membership records and thus, that it was not responsible for notifying union members of the upcoming vote, even though it undertook efforts to notify members whose addresses it did have of the vote. Next, the letter concluded that Local 1408's petition to allow it to conduct a vote would be denied, and that Plaintiff "Smith, a Local 1408 officer, knew or should have known well in advance of June 8, 2004 that Local 1408 President Vincent S. Cameron was not complying with the ILA's directive on the conduct of the ratification vote and furthermore, as a Local 1408 officer, he was in a position to rectify the non-compliance. Therefore, the remedy is not to rerun the vote but to charge the officers with malfeasance under the internal union discipline procedure which has already been directed." Id. at 1-2.) The letter also stated that the ILA had decided to disqualify the votes of Locals 1526 and 2047, even though they were net in favor of the Master Contract, on the grounds that they were conducted after the 6 PM deadline, and made similar statements regarding Plaintiff Payne, a Local 1526 officer.

  Next, the letter rejected claims regarding coercion at Local 1235's voting site, stating that the allegations were not made by members of any of the locals that voted there, and that the supervisor of poll workers at the Local 1235 polling site stated that the voting was conducted in a proper manner. The letter concluded by stating that, after the invalidation of the votes of Locals 1526 and 2047 and other minor adjustments were factored in, the final tally for the ratification vote would be 4873 to 3886.

  On July 13, 2004, one day after the issuance of the letter, Plaintiffs brought suit against the ILA alleging violation of the LMRDA and the Union's duty of fair representation, and sought relief including a new contract vote and a prohibition against retaliating against the Plaintiffs. Plaintiffs moved for preliminary injunctive relief on August 18, 2004, seeking to avoid implementation of the Master Contract on October 1, 2004. The Court received full briefing on the weighty issues presented here by September 17, and held a hearing on Plaintiffs' motion on September 22 and 23.

  II. STANDARD OF REVIEW

  The Second Circuit has established two different tests for establishing a plaintiff's right to preliminary injunctive relief. The first test, to be applied where a plaintiff seeks a preliminary injunction that maintains the status quo, requires the plaintiff to "establish irreparable harm and either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in its favor." Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002). The second, more stringent test, requires the plaintiff to prove a "clear or substantial likelihood of success on the merits." Tom Doherty Associates, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 37 (2d Cir. 1995). It applies where "(i) an injunction will alter, rather than maintain, ...


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