Troman et al v. American Federation of State, County and Municipal Employees et al
OPINION AND ORDER: For the foregoing reasons, Petitioners' motion to remand and motion for a preliminary injunction are DENIED. SO ORDERED. (Signed by Judge J. Paul Oetken on 10/13/2016) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL TROMAN, MITCHELL FEDER,
AHMED SHAKIR, STACEY MORIATES,
LEELA MARET, JANEK PATEL, JOSEPH
MIRAGLIA, JOHN READE, and ANTONIO
OPINION AND ORDER
-vAMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
and LEE SAUNDERS, PRESIDENT,
J. PAUL OETKEN, District Judge:
This action was commenced on September 2, 2016, in the Supreme Court of New York,
County of New York, by Michael Troman, Mitchell Feder, Ahmed Shakir, Stacey Moriates,
Leela Maret, Janek Patel, Joseph Miraglia, John Reade, and Antonio Dones (“Petitioners”).
(Dkt. No. 1.) The action was removed to this Court on September 5, 2016, by the American
Federation of State, County and Municipal Employees and Lee Saunders, President
On September 6, 2016, Petitioners filed an order to show cause why this Court should not
remand this matter to the Supreme Court, New York County. (Dkt. No. 10.) On September 9,
2016, Petitioners filed an order to show cause for a temporary restraining order and preliminary
injunction. (Dkt. No. 14.) Respondents oppose the relief sought by Petitioners in both instances.
This Court held a hearing on both motions on October 6, 2016. For the reasons that follow, the
motions are denied.
The Civil Service Technical Guild, also known as Local 375 (“Local 375”), is a local
union affiliated with the American Federation of State, County and Municipal Employees
(“AFSCME”). (Dkt. No. 16 at 4.) Local 375 is a 7,500-member union representing engineers
and skilled technical employees who work for New York City, the New York City Transit
Authority, and the City University of New York. (Id.) This action arises from a conflict about
Local 375’s Executive Committee elections and actions taken by AFSCME in the wake of those
In December 2015, Local 375 held an election to determine its Executive Committee.
(Dkt. No. 22 at 6.) This election led to a hearing before the AFSCME Judicial Panel in which it
found violations of the AFSCME International Constitution sufficient to justify holding a rerun
election. (Id.) In particular, the Judicial Panel found that emails were sent from improper
domains—domains that were “intended to convey the status of an official Local 375, Chapter 8
website . . . [and] purport[ing] to be an official local union endorsement”—and to improper
recipient addresses—“City of New York email addresses”—in violation of the International
Constitution. (Dkt. No. 21-6 at 14–15.) As a result, a rerun election was held in May 2016.
Petitioners assumed office on May 27, 2016, and were compensated by Local 375
through August 26, 2016. (Id. at 4.) Following the rerun election, another series of election
protests was filed and a second hearing was held before the Judicial Panel on July 7, 2016. (See
Dkt. No. 22 at 7.) In an August 12, 2016, interim decision, Richard Abelson, Chairperson of the
Judicial Panel, again concluded that the International Constitution had been violated. (See id.)
Regarding the rerun election, Abelson found that “[t]he evidence established that the conduct
which violated the Election Code . . . of the International Constitution did not abate after the
initial election, and if anything, has become ingrained in Local 375.” (Dkt. No. 21-2 at 10.)
Moreover, he wrote, “the level of dysfunction and what appears to be intentional resistance to
comply with the Election Code by those who seek to hold office in Local 375 is of great
concern.” (Id.) Abelson found that another rerun election would be fruitless and “would
continue what appears to be a now endless spiral of ignoring AFSCME’s Election Code and
would further the dysfunction now evident in this Local Union.” (Id. at 11.)
On August 29, 2016, AFSCME International President Lee Saunders imposed an
emergency administratorship over the affairs of Local 375. (Dkt. No. 20 at 3.) In a letter to
Petitioners, Saunders explained that he had “concluded . . . that the local is acting in violation of
the International Constitution by its repeated engagement of conduct that violates several
provisions of the Bill of Rights for Union Members, including their right to fair and democratic
elections and their right to full participation in the decision making processes of the union.”
(Dkt. No. 21 at 7–8.) In a declaration signed September 22, 2016, Saunders further elaborated
that his “opinion that there existed an emergency that warranted an administratorship was based
on (i) the nature and the severity of the conduct and the findings made by the Judicial Panel, (ii)
the fact that this represented a repetition of conduct that the Judicial Panel had previously
prohibited in the first election, and (iii) the fact that this conduct had and was likely to continue
to directly infringe on the rights of the union membership to a fair and democratic election and
the right to participate in the decision making processes of the union.” (Id. at 9.)
Respondents also contend that, at the time he was considering his decision to impose an
administratorship, Saunders was aware of a number of other problems at Local 375 in addition to
the election-related issues. (See Dkt. No. 22 at 8–9.) These problems include charges against
members of the Executive Committee for allegedly acting to keep elected members from taking
office; charges against Mr. Feder (a Petitioner) for allegedly failing to issue checks to charitable
organizations despite approval to do so; charges against Mr. Shakir, Mr. Patel, and Mr. Feder (all
Petitioners) for allegedly failing to distribute funds; charges against Ms. Moriates (a Petitioner)
for failing to recognize the legitimacy of a chapter president’s election; charges against Mr.
Troman, Ms. Moriates, and Mr. Shakir for filing an EEOC charge against the City of New York
in violation of the AFSCME International Constitution; charges by Ms. Moriates against
individuals for refusing to send certain letters; and charges filed against Mr. Troman and Mr.
Feder for allegedly failing to carry out a decision of the Executive Committee permitting the
outgoing President to use two months of his leave balance. (Id.)
Upon imposing the administratorship, Saunders appointed John English (“English”) as
the Administrator of Local 375 and referred the matter to the AFSCME Judicial Panel for a
hearing before an Administratorship Hearing Board. (Dkt. No. 20 at 3.) On August 31, 2016,
English disbanded the Executive Committee and canceled all future meetings. (Dkt. No. 15 at
On September 2, 2016, Petitioners initiated this action in the Supreme Court of New
York, County of New York, which was then removed to this Court by Respondents on
September 5, 2016. (Dkt. No. 1.) In this Court, Petitioners seek to have this case remanded to
New York Supreme Court. In the alternative, they move for a preliminary injunction dissolving
the administratorship and reinstating Petitioners to the Executive Committee
Meanwhile, on September 16, 2016, the Administratorship Hearing Board of AFSCME
conducted a hearing on the imposition of the administratorship and, on October 4, 2016, issued a
decision upholding the imposition of the administratorship. (See Dkt. No. 35.) In its opinion,
the Hearing Board enumerated a number of problems in the governance of Local 375. (See Dkt.
No. 35-1 at 8–11 (discussing some of the 96 incidents brought before the Judicial Panel
regarding Local 375 and its officers as well as the history of undemocratic election processes
employed by Local 375).) Pursuant to the AFSCME International Constitution, the Hearing
Board decision is currently appealable to the International Executive Board. (Dkt. No. 21-3
This is an action brought by employees against a labor union under Section 301(a) of the
Labor Management Relations Act of 1947, 29 U.S.C. § 185(a) (“LMRA”), and thus falls within
this Court’s jurisdiction under 28 U.S.C. § 1331.
The two issues before the Court are: (1) whether the Court should remand this case to
New York State Supreme Court, and (2) whether the Court should grant Petitioners’ request for a
preliminary injunction to dissolve the administratorship and reinstate the Executive Committee.
Each is addressed in turn.
Petitioners put forth two theories for why this Court should remand the current
proceedings to New York State Supreme Court. First, Petitioners argue that this Court lacks
subject matter jurisdiction because they are not “employees” for purposes of the LMRA.
Second, Petitioners argue that Respondents’ removal to federal court was procedurally improper
because it was premature.
Subject Matter Jurisdiction
Section 301 of the LMRA provides that “[s]uits for violation of contracts between an
employer and a labor organization representing employees in an industry affecting commerce as
defined in this chapter . . . may be brought in any district court of the United States.” 29 U.S.C.
§ 185(a). There is no dispute that the AFSCME International Constitution is a “contract” within
the meaning of the LMRA. In United Ass’n of Journeymen and Apprentices of Plumbing and
Pipefitting Industry of U.S. and Canada, AFL-CIO v. Local 334, 452 U.S. 615 (1981), the
Supreme Court held that a parent union’s constitution is a contract between labor organizations
under Section 301(a), and therefore a federal court has jurisdiction under the section over a suit
by a local against its parent international union.
The parties, however, dispute whether the Petitioners are “employees” within the
meaning of Section 301 of the LMRA and, thus, whether this Court has subject matter
jurisdiction over the action. Whether jurisdiction is proper, therefore, hinges on the definition of
“employer” and “employee” under this section.
The definitions set forth in the National Labor Relations Act (“NLRA”), 29 U.S.C.
§§ 151–69, apply to the LMRA. See 29 U.S.C. § 142(3) (“The terms . . . ‘employer’ [and]
‘employee’ . . . shall have the same meaning as when used in [the NLRA].”). The terms
“employer” and “employee” are expressly defined in 29 U.S.C. § 152(2)–(3):
(2) The term “employer” . . . shall not include the United States or
any wholly owned Government corporation . . . or any State or
political subdivision thereof. . . .
(3) The term “employee” . . . shall not include any individual
employed . . . by any other person who is not an employer as
As such, federal courts have consistently held that public employees cannot bring claims under
LMRA provisions. See Cunningham v. Local 30, Int’l Union of Operating Eng’rs, 234 F. Supp.
2d 383, 395–96 (S.D.N.Y. 2002) (collecting cases). “For the purposes of the [LMRA], courts
within this district have considered an employee of the City of New York to be a public, and not
a private, employee.” Commer v. McEntee, No. 00 Civ. 7913, 2006 WL 3262494, at *17
(S.D.N.Y. Nov. 9, 2006).
Many such cases, however, arise in the context of a “hybrid” claim, where an employee
sues a public employer under the LMRA for violating, say, a collective bargaining agreement,
and sues a union for breach of the duty of fair representation. In such cases, courts have found
that they lack subject matter jurisdiction because a public employer is not an “employer” and,
therefore, the employment relationships were outside the scope of the statute. See, e.g., Moir v.
Greater Cleveland Regional Transit Auth., 895 F.2d 266, 271 (6th Cir. 1990); Manfredi v.
Hazleton City Auth., Water Dep’t, 793 F.2d 101, 103 (3d Cir. 1986). In some cases, however,
“[a] public-sector union employee may be considered a ‘private’ employee under the LMRA
based on his employment by the union.” Khan v. Cassar, No. 12 Civ. 6010, 2012 WL 6674432,
at *3 (E.D.N.Y. Dec. 21, 2012). For example, in Commer, Judge Sweet held that a local
AFSCME union president, despite his concurrent employment with the City of New York, “had
been employed by the union and was therefore a private employee . . . until he was removed
from union office on May 1, 2000.” Commer, 2006 WL 3262494, at *17.
Here, Petitioners are similarly situated, as they are employees of the union as well as
employees of the City of New York. Respondents point to four facts in particular to support their
contention that the Petitioners are employees within the meaning of the LMRA. First, each
Petitioner received compensation from Local 375 for their service as elected officers, ranging
from $6,800 to over $34,000 annually (Dkt. No. 26 at 4); second, each Petitioner completed an
IRS W-4 form identifying Local 375 as an employer (id.); third, Local 375 made federal and
state payroll tax filings with the IRS and New York State designating itself as an employee (id. at
4-5); and fourth, Local 375 is governed internally without any input, control, or resources from
any public employer, including the City of New York (id. at 5). Moreover, Petitioners do not
seek any remedy with respect to their employment with any public employer, but rather seek
remedies stemming only from their employment with the union.
Petitioners’ reliance on Khan, 2012 WL 6674432, to challenge this Court’s jurisdiction is
misplaced. There, Judge Weinstein found that jurisdiction was improper in a case where
“Plaintiffs’ compensation [as union officers] was primarily assumed by the City” and where “the
dispute [was] over the [union]’s mode of representation of its members with the City—not over
conditions of their employment by the union.” Id. at *3 (emphasis added). Here, where there is
no allegation that the City compensates the local union officers for their work as such and where
the dispute is solely over the Petitioners’ employment by the union, Respondents are
“employees” for purposes of Section 301 of the LMRA. 1 Accordingly, this Court has subject
matter jurisdiction of this case.
Removal from State Court
Petitioners further argue that this case was improperly removed from state court because
it had not yet been initiated. (Dkt. No. 12 at 3.) That is, the state court petition was submitted
electronically on Friday, September 2, 2016, but no index number was assigned to the case until
Tuesday, September 6, 2016. (Dkt. No. 12, Ex. C, Ex. D.) The proceeding was removed to
federal court in the interim, on Monday, September 5, 2016, before the index number was
assigned. (Dkt. No. 1.)
Further, Petitioners do not seem to disagree that this court should be held to have
federal jurisdiction over this and other similarly situated actions. In their reply, Petitioners note
that they “do not object to federal jurisdiction on principle” (Dkt. No. 32 at 1), and argue that
“[i]f the Federal Courts have jurisdiction to enforce—shape, interpret, and apply—international
union constitutions, they cannot do it just some of the time” (id. at 4).
Petitioners argue that “[i]t is axiomatic that a case cannot be removed before its
inception.” (Dkt. No. 12 at 3 (quoting Carvalho v. Equifax Information Services, LLC, 629 F.3d
876 (9th Cir. 2010)).) This, however, is not a reason to remand the case, as the action was
properly commenced and then properly removed.
Under New York State law, “[i]n an action which is commenced by filing, a claim
asserted in the complaint is interposed against the defendant . . . when the action is commenced.”
N.Y. C.P.L.R. § 203(c). Filing does not require that the clerk of court assign an index number to
the action. Rather, “filing shall mean the delivery of the summons with notice, summons and
complaint or petition to the clerk of the court in the county in which the action or special
proceeding is brought or any other person designated by the clerk of the court for that purpose.”
Id. § 304(c). “Where filing is by electronic means, the clerk shall, in accordance with rules
promulgated by the chief administrator, forthwith notify the filing party of the index number and
the date and time of filing.” Id. § 304(e). See also De Maria v. Smith, 197 A.D.2d 114, 117 (3d
Dep’t 1994) (“Pursuant to [§ 304], it is the actual filing of a summons and complaint or a
summons with notice which commences the action . . . .”).
Petitioners thus commenced this action on September 2, 2016, with the filing of their
petition and the action was properly removed thereafter. That the clerk of court did not assign an
index number before the case was removed, likely because the removal was effectuated on a
federal holiday, does not require this Court to remand the matter to state court.
Petitioners seek to enjoin the continuing imposition of an administratorship (or
trusteeship) over Local 375 by AFSCME, the parent union. President Saunders imposed the
administratorship after finding that an “emergency” existed warranting the suspension of the
elected officers. Petitioners contend that no emergency existed and that the imposition of the
administratorship was therefore improper under the terms of the AFSCME International
A party seeking a preliminary injunction must establish (i) irreparable harm should
injunctive relief not be granted and (ii) either a likelihood of success on the merits or sufficiently
serious factual questions making a fair ground for litigation with a balance of hardships tipping
in the movant’s favor. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); Int’l Bhd. of
Teamsters v. Local Union No. 810, 19 F.3d 786, 789 (2d Cir. 1994).
“As elected officials of the District Council removed from office as a result of the
imposition and continuation of the trusteeship, the plaintiffs have established irreparable harm.”
Mason Tenders Dist. Council of Greater New York v. Laborers’ Int’l Union of N. Am., 884 F.
Supp. 823, 833 (S.D.N.Y. 1995). There is ample law that the imposition of a trusteeship or
administratorship interferes with a local union’s right of self-determination and that resulting
“damage to a labor union’s reputation and image constitute irreparable injury.” Id. (citing cases).
Accordingly, Petitioners have made the requisite showing of irreparable harm for purposes of
preliminary injunctive relief.
Likelihood of Success on the Merits
To justify a preliminary injunction against a trusteeship imposed by a parent union on a
local subordinate union, the Petitioners must first show “by the preponderance standard that
[Respondents] had no valid ‘claim of right’ to impose the trusteeship.” See id. at 832 (citing
Local 810, 19 F.3d at 791-92). This determination turns on whether the imposition of the
trusteeship complied with the governing constitution of the parent union. Id. If Petitioners are
able to “meet their burden at this first step, then in order to complete their showing of the
likelihood of success on the merits, they will be required, as a second step, to show bad faith or
improper purpose by the preponderance of the evidence.” Id. If, on the other hand, Petitioners
cannot demonstrate by a preponderance of the evidence that the Respondents had no valid claim
of right to impose the trusteeship, “this will give rise to [the] presumption that [Respondents’]
actions were valid,” and Petitioners can succeed only by showing “bad faith or improper purpose
by clear and convincing evidence.” Id.
Ultimately, the decision whether to grant preliminary injunctive relief to enjoin the
imposition of a union administratorship or trusteeship is left to the discretion of the district court.
See id. at 832 (finding that “whether to grant preliminary injunctive relief enforcing a labor union
trusteeship is left to the district court’s discretion” and collecting cases).
Petitioners’ argument fails at the first step as they are unable to establish that
Respondents “had no valid ‘claim of right’ to impose the trusteeship” as evidenced by a violation
of the AFSCME International Constitution. Id. Specifically, Petitioners unsuccessfully
challenge both whether an “emergency” existed that justified imposition of an administratorship
and whether the hearing held on September 16, 2016, was a “fair hearing.”
Moreover, in light of the federal judicial policy against interference in union affairs and
the discretionary judicial policy requiring union employees to exhaust their intra-union remedies
before seeking judicial review, this Court finds that the Petitioners have not carried their burden
to demonstrate they are entitled to the injunctive relief they seeks.
Pursuant to Article IX, Section 37 of the AFSCME International Constitution, the
International President may impose an administratorship on a subordinate body “[i]f the
International President shall find . . . (6) that a subordinate body is acting in violation of this
Constitution or of any lawful order of the Convention, the International Executive Board, or the
International President, so that in the opinion of the International President an emergency
situation exists, the International President is empowered to place such subordinate body under
administratorship pending notice and hearing.” (Dkt. No. 21-3 § 37 (emphasis added).)
Petitioners claim that President Saunders lacked a good faith basis on which to conclude
that an emergency administratorship was warranted. (Dkt. No. 22 at 19–20.) Respondents argue
that “(i) Article IX, Section 37 of the International Constitution grants International President
Saunders both the authority and discretion to make such a decision, and (ii) the record
demonstrates that International President Saunders had a good faith basis to exert such authority
in the manner that he did.” (Id. at 20.)
As discussed above, to succeed on the merits of their claim, Petitioners must show by a
preponderance of the evidence that Respondents did not have a valid claim of right to impose the
emergency trusteeship. Mason Tenders, 884 F. Supp. at 832. But Petitioners are unable to
demonstrate that President Saunders failed to comply with the AFSCME International
Constitution, which allows him broad discretion to impose an emergency trusteeship if “a
subordinate body is acting in violation of [the] Constitution” and “in the opinion of the
International President an emergency situation exists.” (Dkt. No. 21-3.) The numerous
allegations of foul play at Local 375, discussed at length above, suggest that Saunders had a
sufficient foundation on which to base his opinion. Indeed, the AFSCME Judicial Panel had
twice found that Local 375’s election procedures violated the International Constitution, this
coming alongside the laundry list of non-election-related issues of which Saunders was aware
when he was making his decision.
Petitioners attempt to undermine the claim that the President was of the opinion that an
emergency existed in the instant situation by reference to “20 years of turbulence . . . more
dramatic than anything which has recently occurred.” (Dkt. No. 16 at 20.) But reference to
other incidents that did not constitute emergencies is insufficient to demonstrate that the present
situation did not rise to an emergency in the opinion of the President. Petitioners also point to
various irrelevant facts to challenge Saunders’ claims of dysfunction including, among others,
the percentage of members who voted in the rerun election, the Local’s history of monthly
meetings, and the fact that the meetings are well attended. (See Dkt. No. 16 at 19). Petitioners
do not show that it is likely that they would be able to prove by a preponderance of the evidence
that President Saunders did not have a valid claim to impose the administratorship under the
AFSCME International Constitution.
The AFSCME Constitution provides that after the President imposes an
administratorship, “the Chairperson of the Judicial Panel shall appoint from among the members
of the Panel an Administratorship Hearing Board.” (Dkt. No. 21-3 § 37.) Each party is allowed
to present their views to the Hearing Board. (Id. § 40.) It is the Hearing Board that determines
whether the subordinate body actually engaged in the conduct that caused the International
President to impose the administratorship. (Id. § 41.) The AFSCME Constitution provides that
after the President imposes an administratorship, “the Chairperson of the Judicial Panel shall
appoint from among the members of the Panel an Administratorship Hearing Board.” (Id. § 37.)
Each party is allowed to present their views to the Hearing Board. (Id. § 40.) It is the Hearing
Board that determines whether the subordinate body actually engaged in the conduct that caused
the International President to impose the administratorship under Section 37. (Id. § 41.)
Petitioners challenge whether the hearing held by the Judicial Panel was a “fair hearing.”
(See Dkt. Nos. 16 at 22–24, 36.) They argue that “a fair hearing is required for the valid
imposition of a trusteeship.” (Id. at 23 (citing Becker v. Indus. Union of Marine & Shipbuilding
Workers of Am., AFL-CIO, 900 F.2d 761, 768 (4th Cir. 1990)). 2
However, Respondents sufficiently satisfied their procedural obligations under the
AFSCME Constitution. Upon the imposition of the trusteeship, Saunders referred the matter to
the AFSCME Judicial Panel for a hearing before an Administratorship Hearing Board. (Dkt. No.
20 at 3.) The Administratorship Hearing Board then conducted a hearing, in which a number of
the Petitioners meaningfully participated, and ultimately issued a decision upholding the
imposition of the administratorship. (See Dkt. No. 35.)
Petitioners’ argument relies on cases interpreting the procedural requirements
imposed by the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”), 29
U.S.C. § 401, et seq. After the hearing on the preliminary injunction, Petitioners moved to
amend their complaint to add a cause of action under the LMRDA. (Dkt. No. 39.) Regardless of
the outcome of that motion, this Court finds that the LMRDA’s “minimum fair hearing
requirement of notice and an opportunity to defend,” Becker, 900 F.2d at 768, was satisfied here.
See Woods v. Dist. Council for New York City & Vicinity of the United Bhd. of Carpenters &
Joiners of Am., No. 14-CV-9057, 2015 WL 3763916, at *2 (S.D.N.Y. June 16, 2015) (“[T]he
LMRDA protects only against a breach of fundamental fairness.” (quoting United States v. Int’l
Bhd. of Teamsters, 247 F.3d 370, 385 (2d Cir. 2001)). Petitioner’s argument that it was denied
the right to proper notice and counsel at the September 16, 2016, hearing is unavailing. (See
Dkt. No. 36.) First, there is no colorable claim that Petitioners were unaware of the nature of the
hearing due to insufficient notice. The dissolution of the Executive Board was made known to
each Petitioner individually (see id. at Ex. BB), and the Petitioners were given explicit notice that
the hearing would address the propriety of the imposition of the administratorship (see id. at Ex.
CC). Second, it is not clear under either the LMRA or the LMRDA that there is a right to
counsel; but even if there is, Petitioners have not shown that their counsel was in fact excluded
from the hearing. (See id. at Ex. AA (unanswered email inquiry from Petitioners’ counsel to
Respondents’ counsel regarding whether he may attend the hearing).)
Petitioners’ failure to exhaust remedies available within the union itself before resorting
to a plea for injunctive relief in this Court, as well as this Court’s policy of noninterference in
union affairs, further counsel against granting Petitioners’ request for injunctive relief.
“A court may require an employee to exhaust intraunion remedies prior to bringing suit
against his union. This requirement, however, is not absolute; rather, it is discretionary with the
court.” Johnson v. Gen. Motors, 641 F.2d 1075, 1078 (2d Cir. 1981).
Respondents argue that Petitioners have “failed to exhaust the internal remedies provided
by AFSCME’s International Constitution, to which they are bound.” (Id. at 16.) While the
Administratorship Hearing Board held a hearing on September 16, 2016, and issued a decision
upholding the imposition of the administratorship on October 4, 2016 (Dkt. No. 35), that
decision remains appealable to the International Executive Board (Dkt. No. 21-3 § 42).
In determining whether to apply the exhaustion doctrine, this Court looks to “whether the
available procedures are adequate and reasonable in light of the facts of the particular case” as
well as the balance between “the right of union members to institute suit against the policy of
judicial noninterference in union affairs.” Johnson, 641 F.2d at 1079.
There are three factors to consider: (1) “whether union officials are so hostile to the
employee that he could not hope to obtain a fair hearing on his claim”; (2) “whether the internal
union appeals procedures would be inadequate either to reactivate the employee’s grievance or to
award him the full relief he seeks”; and (3) “whether exhaustion of internal procedures would
unreasonably delay the employee’s opportunity to obtain a judicial hearing on the merits of his
claim.” Woods, 2015 WL 3763916, at *4 (alteration in original) (quoting Clayton v.
International Union, UAW, 451 U.S. 679, 689 (1981)).
First, Respondents note that there is no implication that either the Administratorship
Hearing Board or the AFSCME International Executive Board, to which the decision is
appealable, “are or would be hostile in any manner to Petitioners.” (Dkt. No. 22 at 16.) Indeed,
there is no indication that the September 16, 2016, hearing was in fact hostile to Petitioners, nor
is there any reason to believe that the International Executive Board, to which any appeal must
be made, would exhibit any hostility. That Board comprises individuals “from different
geographic regions of the country and the AFSCME International Union places additional
safeguards to ensure fairness and objectivity, including the fact that no member of the Judicial
Panel shall participate” in the appeal. (Dkt. No. 22 at 4–5.)
Second, the intra-union procedures are capable of providing the relief sought. (Id. at 17
(“Nothing in Article IX of the International Constitution would limit the Administratorship
Hearing Board or the International Executive Board from granting . . . relief to Petitioners.”).)
Third, the proceedings do not appear to be unreasonably delayed. The Administratorship
Hearing Board produced its decision in less than three weeks, and the parties indicated at oral
argument that the International Executive Board meets quarterly, with its next meeting scheduled
to take place in December 2016. (See forthcoming transcript to Show Cause Hearing held on
October 6, 2016.)
All that Petitioners provide in terms of counterargument is the allegation that “the
AFSCME Constitution does not meet federal muster, so an appeal within the union would be
meaningless.” (Dkt. No. 30 at 6.) They rely on the holding of Detroy v. American Guild of
Variety Artists, 286 F.2d 75, 81 (2d. Cir. 1961), which deemed exhaustion of intra-union
remedies to be unnecessary where “the internal union remedy is uncertain and has not been
specifically brought to the attention of the disciplined party, the violation of federal law clear and
undisputed, and the injury to the union member immediate and difficult to compensate by means
of a subsequent money award.” However, the Second Circuit in Detroy confirmed that “[t]he
absence of any of these elements might, in light of Congressional approval of the exhaustion
doctrine, call for a different result.” Id.
Here, because the intra-union remedies appear adequate and requiring the parties to
exhaust their remedies would not unreasonably delay the opportunity for judicial intervention,
Petitioners are not excused from the general requirement that they exhaust their internal remedies
before filing suit. See Fort v. Am. Fed. of State, County & Municipal Emps., 375 Fed. Appx.
109, 113 (2d Cir. 2010) (“[W]e doubt that any abuse could be identified, in light of plaintiffs’
success in defending against prior charges of misconduct, the absence of any suggestion that the
AFSCME appeals process was incapable of exonerating them, and the availability of two levels
of internal appeal within a period of several months.”); see also Dkt. No. 22 at 18 (quoting May
15, 2009 Hearing Transcript in Fort v. Am. Fed. of State, County & Municipal Emps., AFL-CIO,
No. 09 Civ. 2265).
In light of the federal policy favoring noninterference in labor matters, see Johnson, 641
F.2d at 1079, as well as the broad discretionary authority conferred on President Saunders by the
governing AFSCME International Constitution, Petitioners are unable to meet their burden for a
For the foregoing reasons, Petitioners’ motion to remand and motion for a preliminary
injunction are DENIED.
October 13, 2016
New York, New York
J. PAUL OETKEN
United States District Judge
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