Smith et al v. New York Metro Area Postal Union et al

Filing 11

OPINION & ORDER: Accordingly, Plaintiffs' request for a preliminary injunction is denied. SO ORDERED. (Signed by Judge Paul A. Crotty on March 27, 2012) (mov)

USDC SNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 27, 2012

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JONATHAN SMITH, TIFFANY FOSTER, :
DORRIS HOLLIS, DEBBIE McCOY,
:
and CHUCK ZLATKIN,
:
:
Plaintiffs,
:
:
- against :
:
NEW YORK METRO AREA POSTAL
:
UNION and CLARICE TORRENCE,
:
:
Defendants.
:
---------------------------------------------------- x

:

12 Civ. 2002 (PAC)
OPINION & ORDER

HONORABLE PAUL A. CROTTY, United States District Judge:
Plaintiffs are members of Defendant New York Metro Area Postal Union (the “Union”).
They seek a preliminary injunction, pursuant to the Labor Management Reporting and
Disclosure Act (“LMRDA”), 29 U.S.C. §§ 411(a)(2) and 481(c): (1) requiring the Union to pay
the cost of printing and mailing to its members an election campaign newsletter authorized by
Plaintiffs; and (2) reinstating all Plaintiffs, except Jonathan Smith, to their former positions as
officers with the Union. At the conclusion of a hearing held on March 26, 2012, the Court
denied Plaintiffs’ application for a preliminary injunction. The Court issues this Opinion to
expand on its ruling.
The New York Metro Area Postal Union, an affiliate of the American Postal Workers
Union, represents approximately 6,000 employees of the United States Postal Service. Plaintiffs
are running on a slate ticket in the Union’s mail ballot election against Defendant Clarice
Torrence, President and Chief Executive Officer of the Union, and other incumbent officers. In
mid-February 2012, less than two months before the Union election ballots were scheduled to be
mailed on March 28, 2012, Defendants issued a newsletter, entitled the “Metro Minute Mail”
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(the “Metro Minute”). Plaintiffs contend that the Newsletter is campaign literature, and that
under 29 U.S.C. § 481(c), they are entitled to distribute an equivalent campaign piece at the
Union’s expense. Plaintiffs Tiffany Foster, Debby McCoy, Dorris Hollis, and Chuck Zlatkin
also contend that in February 2012, Torrence improperly removed them from their official
positions in the Union and replaced them with candidates on the incumbent ticket in order to gain
an advantage during the upcoming election. Plaintiffs argue that their removal was a “scheme to
suppress dissent,” which would permit this Court to intervene under Section 101(a)(2) of the
LMRDA, 29 U.S.C. § 411(a)(2).
A party seeking a preliminary injunction pursuant to Fed. R. Civ. P. 65 must show “(a)
irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious
questions going to the merits to make them a fair ground for litigation and a balance of hardships
tipping decidedly toward the party requesting the preliminary relief.” Cacchillo v. Insmed, Inc.,
638 F.3d 401, 405-406 (2d Cir. 2011). The party seeking the injunction “must show a ‘clear’ or
‘substantial’ likelihood of success where the injunction sought is mandatory—i.e., it will alter,
rather than maintain, the status quo.” Clear Channel Outdoor, Inc. v. City of New York, 608 F.
Supp. 2d 477, 492 (S.D.N.Y. 2009) (quoting Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24
(2d Cir. 2004).
Section 481(c) of the LMDRA provides, in pertinent part, that:
whenever ... labor organizations or its [sic] officers authorize the distribution by
mail or otherwise to members of campaign literature on behalf of any candidate or
of the labor organization itself with reference to such election, similar distribution
at the request of any other bona fide candidate shall be made by such labor
organization and its officers, with equal treatment as to the expense of such
distribution.
29 U.S.C. § 481(c). The parties do not dispute that Plaintiffs are bona fide candidates in the

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upcoming Union election. The Metro Minute, however, is not “campaign literature” for
purposes of § 481(c) as courts in this Circuit have construed the term.
In New Directions v. Seda, 867 F. Supp. 242 (S.D.N.Y. 1994), prior to a union election,
the incumbent union president distributed campaign materials at the union’s expense without
allowing plaintiffs an equal opportunity to distribute their own election materials. 867 F. Supp.
at 243. Plaintiffs sought an injunction for violations of § 481(c). In evaluating whether
defendant’s publication was campaign literature, the court considered “its overall timing, tone,
content and context.” Id. at 245. The court found that defendant’s publication, an article entitled
“New Directions at it Again,” which appeared in the union’s newsletter, violated § 481(c)
because it was closely timed with the union’s election and was overly political in tone. Id. The
article “accus[ed] New Directions of ‘electioneering’ by criticizing the union’s contract
negotiations with the TA and creating ‘an issue to run on later this year.’” Id. In addition, the
defendant “derisively call[ed] New Directions ‘political opportunists,’ and counsel[ed] it to ‘wait
until the election to electioneer.’” Id. Since the defendant’s article “repeatedly refer[red] to the
upcoming elections,” the Court found that it was therefore “conspicuously political in nature” for
purposes of § 481(c). Id.
Similarly, in Guzman v. Local 32B-32J, Service Employees Int’l Union, AFL-CIO, 72
F.3d 260 (2d Cir. 1995), seven months prior to a scheduled election, the union mailed to its
members a hard covered book containing a historical retrospective and praise of the incumbent
board. 72 F.3d at 262. The book also discussed the upcoming election, in which plaintiff was an
opposition candidate. Id. Although plaintiff was not mentioned by name, the book praised the
actions of the incumbent president “and suggest[ed] that the Guzman slate was a puppet for
employers.” Id. The court found that the publication was campaign literature because it

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“extoll[ed] [the incumbent president’s] record in glowing terms and characterize[d] the plaintiffs
as disruptive and ‘frivolous.’” Guzman v. Local 32B-32J, Service Employees Int’l Union, AFLCIO, 151 F.3d 86, 91 (2d Cir. 1998) (affirming grant of preliminary injunction for violation of §
481(c)).
The Metro Minute bears none of the hallmarks of campaign literature that were present in
New Directions and Guzman. The publication is neither laudatory of the incumbent candidates
nor is it derogatory of any opposition candidate.1 Indeed, there is no mention of Plaintiffs, nor is
there any mention of any other union members in their capacity as candidates. There are no
pictures of the incumbent candidates, nor is there any discussion of party platforms. Indeed,
there is not even any mention of the election date, and no encouragement of going to the polls.
Instead, the Metro Minute is exactly what it purports to be—a membership newsletter recording
recent and current events of interest to all members of the Union and all workers in the post
office. As the Metro Minute is not campaign literature on behalf of any candidate, there is no
basis in law or fact for awarding Plaintiffs relief pursuant to 29 U.S.C. § 481(c).
Nor are Plaintiffs entitled to an injunction requiring Torrence to reinstate them to their
official positions in the Union. Section 411(a)(2) of the LMDA provides:
Every member of any labor organization shall have the right to meet and assemble
freely with other members; and to express any views, arguments, or opinions; and
to express at meetings of the labor organization his views, upon candidates in an
election of the labor organization or upon any business properly before the
meeting, subject to the organization's established and reasonable rules pertaining
to the conduct of meetings: Provided, That nothing herein shall be construed to
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Plaintiffs’ reliance on Bliss v. Holmes, 721 F.2d 156 (6th Cir. 1983) (per curiam), is misplaced. In that case, the
Third Circuit reversed the district court’s denial of injunctive relief for a violation of § 481(c). The court found that
the union’s newsletter “disclose[d] numerous pages devoted to laudatory articles about the incumbent president and
numerous columns by both the incumbent president and vice president, the effect of which is to advance their
candidacies.” Id. at 158. In addition, three out of the seven pages in the issue were devoted to the incumbent
candidates. Id. The court concluded that “this excessive publicity, not balanced by any publicity for other
candidates, or even an announcement of their candidacies, constitutes the distribution of campaign literature for
defendants . . . and distributed at the expense of the defendant union.” As discussed, the Metro Minute contains no
such publicity or laudatory articles of the incumbent candidates.

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