Kane et al v. New York State Nurses Association et al
Filing
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MEMORANDUM & ORDER: Plaintiffs' application for injunctive relief is granted. Accordingly, Defendants are HEREBY ORDERED to declare the winners of its recent election and to seat the winning candidates on the board. (Signed by Judge Richard J. Sullivan on 10/13/2011) (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PATRICIA KANE, WENDY
BRAITHWAITE, and MAUREEN EISELE,
Plaintiffs,
No. 11 Civ. 6505 (RJS)
MEMORANDUM & ORDER
-vNEW YORK STATE NURSES
ASSOCIATION, TINA GERARDI, KAREN
BALLARD, J. HOWARD DOUGHTY,
EILEEN DUNN, MARY FINNIN, MIMI
GONZALEZ, WINIFRED KENNEDY,
ELIZABETH MAHONEY, and JOSÉ
PLANILLO,
Defendants.
RICHARD J. SULLIVAN, District Judge:
Plaintiffs, members of Defendant New York State Nurses Association (“NYSNA”) and
candidates for certain positions in a recent union election, bring this application for a preliminary
injunction and temporary restraining order that would, in essence, require NYSNA to declare the
winners of its recent election and to seat the winning candidates on the board. For the reasons
that follow, Plaintiffs’ request is granted.
I. Background1
NYSNA’s bylaws provide that the election of officers, directors at large, and certain
other positions shall be conducted by secret mail ballot, which are provided to voters no later
than 60 days prior to the union’s annual meeting.
(Declaration of Patricia Kane, dated
September 25, 2011, Doc. No. 14 (“Kane Decl.”), Ex. A at Art. XIV § 2.) The bylaws further
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The following facts, which are not disputed for purposes of this motion, are taken from the Complaint, the parties’
memoranda of law, declarations, and exhibits attached thereto.
provide that “[t]he results of the secret mail ballot shall be announced at the annual meeting,”
and that “[t]he nominees who receive the highest number of votes shall be declared elected.” (Id.
§§ 4-5.)
Additionally, the bylaws state that “[t]he terms of all officers, directors and the
Nominating Committee shall commence at the adjournment of the annual membership meeting
at which they were elected and shall continue for the term specified or until their successors are
elected.” (Id. § 7.) Once elected, the officers and directors at large serve two-year terms. (Id. at
Art. V § 3.)
In August 2011, NYSNA conducted an election for the positions of president-elect,
treasurer, and four directors at large. Plaintiff Kane ran for treasurer as part of an anti-incumbent
slate of candidates known as “New York Nurses for Staffing, Security and Strength.” (Kane
Decl. ¶ 13.) On August 24, 2011, the ballots were counted, and Kane and her entire slate
received the most votes for each contested seat in the election and secured a majority of the seats
on the board of directors. (Id. ¶ 3.)
From September 23 through September 25, 2011, NYSNA held its annual meeting in
Niagara Falls, New York. (Id. ¶ 5.) While the results of the election were made public prior to
the meeting, they were not formally announced at the annual meeting. Indeed, prior to the
meeting, several members lodged protests regarding purported violations of NYSNA’s election
procedures, and an internal election committee was created to investigate these claims. (Kane
Decl., Ex. F at 1-2.) On September 25, 2011, at the conclusion of the annual meeting, the
incumbent board of directors convened and refused to seat Kane and her fellow slate members
pending the conclusion of the election committee’s investigation. (Kane Decl., Ex. F at 1-2.)
The committee stated that it would not certify the results of the election until it completed its
investigation of the protests. (Id.) NYSNA subsequently issued a press release in which it
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indicated that “the current board will remain in place” beyond the expiration of their terms
through the completion of the election protest process, and through and including the disposition
of any appeals. (Kane Decl., Ex. I.) The bylaws are silent with respect to procedures for seating
board members pending the investigation of election protests.
On September 26, 2011, Plaintiffs filed with this Court an “Application for Preliminary
Injunction and Temporary Restraining Order.” Defendants submitted their papers in opposition
to Plaintiffs’ request on September 27, 2011. The Court heard oral argument on September 28,
2011.
II. Legal Standard
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Res. Def. Council, 555 U.S. 7, 20 (2008); accord Salinger v. Colting, 607 F.3d 68, 79–
80 (2d Cir. 2010).
The party seeking the injunction carries the burden of persuasion to
demonstrate, “by a clear showing,” that the necessary elements are satisfied. See Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997).
The standard for a temporary restraining order is the same as for a preliminary injunction.
See AFA Dispensing Grp. B.V. v. Anheuser–Busch, Inc., 740 F. Supp. 2d 465, 471 (S.D.N.Y.
2010).
III. Discussion
A. Jurisdiction
As an initial matter, the parties vigorously dispute whether this Court has jurisdiction to
grant the relief that Plaintiffs are seeking.
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Title I of the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C.
§ 401, et seq., provides that “[a]ny person whose rights secured by the provisions of this
subchapter have been infringed by any violation of this subchapter may bring a civil action in a
district court of the United States for such relief (including injunctions) as may be appropriate.”
29 U.S.C. § 412. Plaintiffs argue that this provision of the LMRDA confers jurisdiction on this
Court to hear claims relating to Defendants’ alleged violation of NYSNA’s bylaws.
Defendants contend, however, that because this dispute is connected to a union election,
Plaintiffs’ remedy lies solely with the Department of Labor.
In support of this position,
Defendants point to Title IV of the LMRDA, which provides that an investigation and lawsuit by
the Secretary of Labor is the “exclusive” remedy for “challenging an election already
conducted.” 29 U.S.C. § 483. Specifically, Title IV sets forth procedures for an aggrieved union
member to raise such challenges:
A member of a labor organization –
(1) who has exhausted the remedies available under the constitution and
bylaws of such organization and of any parent body, or
(2) who has invoked such available remedies without obtaining a final decision
within three calendar months after their invocation,
may file a complaint with the Secretary within one calendar month thereafter
alleging the violation of any provision of section 481 of this title (including violation
of the constitution and bylaws of the labor organization pertaining to the election and
removal of officers).
29 U.S.C. § 482(a). The provisions following this section detail the procedures by which the
Secretary of Labor is to investigate complaints that have been lodged regarding the conduct of
the election. Upon concluding its investigation, the Secretary may then bring a suit in a United
States district court, where it may seek, among other things, a declaration that the election is void
and an order directing the commencement of a new election under the supervision of the
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Department of Labor. See 29 U.S.C. § 482(b)-(c). Significantly, the statute provides that during
the course of a Department of Labor investigation, “[t]he challenged election shall be presumed
valid pending a final decision thereon . . . and in the interim the affairs of the organization shall
be conducted by the officers elected or in such other manner as its constitution and bylaws may
provide.” Id. § 482(a).
The parties’ dispute over jurisdiction, therefore, centers on the question of whether the
claim advanced by Plaintiffs – namely, that Defendants violated NYSNA’s bylaws by failing to
declare the winners of the election and seat the winning candidates – constitutes a “challeng[e to]
an election already conducted,” 29 U.S.C. § 483, and is thus within the exclusive jurisdiction of
the Department of Labor. The Court concludes that it may, consistent with Title IV, order
Defendants to declare the winners of the election and to seat the winning candidates.
Ordering Defendants to declare the winners of the election and to seat the winning
candidates, as required by NYSNA’s bylaws, does not encroach on the exclusive jurisdiction of
the Secretary of Labor in investigating challenges to a union election. As noted above, Title IV
provides that, pending the outcome of the Secretary’s investigation, “[t]he challenged election
shall be presumed valid . . . [and] the affairs of the organization shall be conducted by the
officers elected or in such other manner as its constitution and bylaws may provide.”2 29 U.S.C.
§ 482(a). Here, because Defendants have refused to declare the winners of the election, there is
no presumptively valid result from which any party may appeal or which would entitle any party
to conduct the “interim . . . affairs of the organization.” As such, Plaintiffs’ request that
Defendants be ordered to declare the winners of the election is not a substantive challenge to the
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It is undisputed that NYSNA’s bylaws do not include any provision pursuant to which the incumbent board
members may retain their seats pending an investigation of challenges to the election. To the contrary, the bylaws
clearly impose two-year term limits on board members and state that the winning candidates shall be seated at the
end of the annual meeting. (See Kane Decl., Ex. A at Art. V §§ 3, 7.)
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outcome of the election itself, but is rather an effort to enforce a right that is provided by
NYSNA’s bylaws and is consistent with the procedures for challenging elections provided by the
LMRDA.
Put another way, while the Court has no interest in dictating which candidates are
declared elected or how the challenges, if any, to the election are ultimately resolved, the Court
certainly has the limited authority to force the union to at least declare a winner so that the
presumptions that are statutorily recognized can go into effect.
Indeed, the Court’s finding that it has jurisdiction to order Defendants to name the
presumptive winners of the election is perfectly consistent with the Supreme Court’s decision in
Local No. 82 v. Crowley, 467 U.S. 526 (1984). In Crowley, the Court held that a district court
overstepped its authority under the LMRDA when it enjoined an ongoing union election so that a
new election could be held pursuant to procedures imposed by the court. Id. at 551. The Court
found that such a remedy conflicted with the exclusive jurisdiction of the Secretary of Labor
over post-election challenges to the validity of an election. Id. at 549. The Court, however,
emphasized that the exclusivity provision of Title IV did not entirely divest district courts of
jurisdiction over all claims, even in a post-election context. Id. at 541. As the Court noted, the
existence of Title IV’s exclusivity provisions “does not necessarily mean that § 403 forecloses
the availability of all postelection relief under Title I.” Id. at 541 n.16. Rather, the Court
stressed that “[t]he exclusivity provision of Title IV may not bar postelection relief for Title I
claims or other actions that do not directly challenge the validity of an election already
conducted.” Id. (emphasis added). Here, the relief sought by Plaintiffs is not barred by Crowley,
because their request that Defendants declare the winners of the election is clearly not a
challenge to the validity of an election already conducted. To the contrary, NYSNA’s bylaws
and the LMRDA each contemplate that substantive challenges to an election may independently
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be investigated by the Secretary following NYSNA’s announcement of the winners of the
election.
Defendants argue, nevertheless, that “courts uniformly dismiss complaints where alleged
violations of Title I are actually complaints over alleged violations of Title IV.” (Defs.’ Mem. at
11.) The cases cited in support of this proposition, however, are clearly distinguishable from the
facts of this case. In Commer v. District Council 37, Local 375, 990 F. Supp. 311 (S.D.N.Y.
1998), a case heavily relied on by Defendants, the plaintiff sought certification of his election as
union president. Id. at 313. Finding that the court did not have jurisdiction under Title I to
prevent the union from ordering a rerun election, Judge Sweet granted the defendants’ motion to
dismiss. Id. at 319-20. Significantly, however, Judge Sweet made a finding that the plaintiff had
already been declared elected, which triggered the post-election provisions of Title IV regarding
challenges to the validity of the plaintiff’s election. Id. at 320. As Judge Sweet noted, once
those provisions had been triggered, then any request by the plaintiff to have the election results
“certified” is properly made only to the Secretary of Labor. See id. at 321. Because there has
been no declaration of winning candidates here, however, the posture of this case differs
substantially from that of Commer. Plaintiffs here are not asking the Court to certify the results
of the election or even to name a presumptive winner. Rather, Plaintiffs are merely requesting
that the winners of the election are declared by Defendants so that the status quo contemplated by
the LMRDA and NYSNA’s bylaws remains in effect while substantive challenges are brought
before the Secretary of Labor.3
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Indeed, it could be argued that, pursuant to the language of NYSNA’s bylaws, the election is not concluded until a
winner is announced and, therefore, the post-election provisions of Title IV have not yet been triggered. (See Kane
Decl., Ex. A at Art. XIV § 7 (“The terms of all officers, directors and the Nominating Committee shall commence at
the adjournment of the annual membership meeting at which they were elected.”).)
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Accordingly, the Court finds that it has jurisdiction to order Defendants to comply with
NYSNA’s bylaws and declare and seat the winners of the election.
B. Merits
As noted above, in order to obtain a preliminary injunction or a temporary restraining
order, a plaintiff must demonstrate “that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. Here, Plaintiffs
have sufficiently demonstrated their entitlement to injunctive relief.
First, Plaintiffs are likely to succeed on the merits as they have demonstrated that
Defendants violated NYSNA’s bylaws by, among other things, refusing to declare the winners of
the election and permitting the incumbent board members to extend their two-year terms of
office.
Second, the fact that the incumbent board has remained in power in violation of
NYSNA’s bylaws is sufficient to establish a likelihood of irreparable harm. See, e.g., Kupau v.
Yamamoto, 622 F.2d 449, 457 (9th Cir. 1980) (irreparable injury existed because “a perpetuation
of the union’s refusal to install the duly elected candidate would deny him the opportunity to
serve and seriously harm [plaintiff], his nominators, and the union membership which elected
him to the most powerful office of [the union]”).
Finally, the balance of equities and the public interest weigh in favor of requiring
Defendants to abide by NYSNA’s bylaws. Defendants’ refusal to declare the winners of the
election appears to be an attempt to thwart the plain intent of the LMRDA by leaving Plaintiffs
with no result to challenge under Title IV. Accordingly, forcing Defendants to declare and seat
the winners of the election is the more equitable result, as it will enable one set of candidates to
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take their seats and the other set to commence the challenge procedures contemplated by the
LMRDA.
IV. Conclusion
For the foregoing reasons, Plaintiffs' application for injunctive relief is granted.
Accordingly, Defendants are HEREBY ORDERED to declare the winners of its recent election
and to seat the winning candidates on the board.
SO ORDERED.
Dated:
October 13, 2011
New York, New York
USDS SDNY
DOCUMENT
ELECTRONICALLY FILED
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DATE FILED: 10-1) - 1/
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