Smith v. Bowers, 04 Civ. 5484(VM).

337 F.Supp.2d 576

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.

No. 04 Civ. 5484(VM).

United States District Court, S.D. New York.

September 30, 2004.

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Susan M. Jennik, Daniel Bright, Kennedy, Schwartz & Cure, PC, New York City, for Plaintiffs.

John Philip Sheridan, Gleason & Mathews, PC, New York City, for Defendant.

DECISION AND ORDER

MARRERO, District Judge.

Plaintiffs Ernest L. Smith, Jr. ("Smith"), Darryl Payne, John Blom, Richard Cephas, Robert Dickey ("Dickey"), Tony Perlstein, Leonard Riley, Roberta Silver ("Silver"), Alvin Soileau, Beverly Woods, and Diego Martinez (collectively, "Plaintiffs")¹ have moved the Court for a preliminary injunction pursuant to Fed.R.Civ.P. 65: (1) prohibiting defendant 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 ILWU. 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.") ¶ 8.)

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.² (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"),...