Johnson v. Kay

860 F.2d 529, 1988 WL 112817
CourtCourt of Appeals for the Second Circuit
DecidedOctober 25, 1988
DocketNo. 965, Docket 87-7990
StatusPublished
Cited by42 cases

This text of 860 F.2d 529 (Johnson v. Kay) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Kay, 860 F.2d 529, 1988 WL 112817 (2d Cir. 1988).

Opinion

WINTER, Circuit Judge:

This appeal from the grant of an injunction concerning the use of a union’s resources in a referendum arises out of a struggle for power between the President and Executive Council of an 80,000 member local union. It raises several issues. The threshold question turns on whether subject matter jurisdiction exists under either Section 102 of the Labor Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 412 (1982), or Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 (1982), that justifies an assertion of pendent jurisdiction over plaintiffs’1 state law claims. Second, because we conclude that the district court did have jurisdiction, we must decide whether the case is moot because the events with which the injunction was concerned have occurred. Third, we must determine whether the union itself should have been joined as a party. Finally, we address whether Judge Sweet abused his discretion in granting the preliminary injunction.

BACKGROUND

A. Allegations of the Complaint

The jurisdictional issue requires us to examine the facts alleged by plaintiffs in the First Amended and Supplemental Verified Complaint filed on September 15,1987. Those allegations follow.

Local 1199, Drug, Hospital and Health Care Employees Union (sometimes the “union”), an affiliate of the International Retail, Wholesale and Department Stores Un[532]*532ion (“RWDSU”), AFL-CIO, is a labor organization that represents approximately 80,-000 hospital workers in New York City and surrounding counties. Under Local 1199’s constitution, the union is governed by a President and an Executive Council consisting of all the officers of the union, including the President. In May 1986, plaintiff Georgianna Johnson and all of the defendants were elected as members of the “Save our Union” slate pledged to reform and democratize the union. Johnson was elected President, while the others assumed various posts as officers of the union. All became members of the Executive Council.

For about a year, President Johnson and the Executive Council functioned smoothly together. Beginning in the spring of 1987, however, Johnson became convinced that Edward Kay, the union’s Secretary-Treasurer, had begun to usurp her powers under the union’s constitution. She also learned that Kay was not fulfilling his constitutional responsibilities as Secretary-Treasurer of Local 1199 but had instead delegated those responsibilities to another officer. A power struggle ensued between Johnson and the Executive Council, led by Kay. Kay told Johnson that he would not tolerate her exercising the constitutional responsibilities of her office. Kay had in fact begun to usurp some of these duties, such as hiring staff and calling and chairing union meetings.

When Johnson sought advice from the union’s general counsel regarding her constitutional powers, the union’s lawyer did not respond. She then sought advice from outside counsel, whom she invited to Executive Council meetings. The Executive Council attempted to bar Johnson’s lawyer from its meetings and voted not to disburse any union funds to pay Johnson’s lawyer. At an Executive Council meeting held August 28, 1987, a member of the Council rose as if to strike Johnson. When that altercation was broken up, the same member attempted to assault Johnson’s executive assistant. On August 31, Kay responded to a memorandum Johnson had written to him concerning his failure to fulfill his constitutional duties as Secretary-Treasurer. Kay told Johnson that he “would burn Local 1199 headquarters to the ground before he would relinquish control” of the union to her.

At the Executive Council meeting held on September 4, 1987, in an incident planned and directed by Kay and the other defendants, approximately thirty-five local organizers and staff members invaded the meeting room, stood around the meeting table and glared at Johnson. This action was contrary to the union’s policy that such meetings are not open to organizers, staff and members other than those invited to conduct particular business. Realizing that the meeting could not go on under those circumstances, Johnson adjourned the meeting and left the room. The intruders refused to leave the executive offices of the union upon Johnson’s orders, but did leave at Kay’s request.

After Johnson had adjourned the meeting and left the room, Kay reconvened the meeting. Kay and the other defendants then “schemed and plotted to disrupt Division Delegate Assembly meetings scheduled for September 8, 9, and 10 by having their supporters crowd the microphones, ... thereby making it physically impossible for any Johnson supporters to address the meetings.” Later, Kay and his supporters planned and arranged for members not entitled to attend Division Delegate Assemblies to come to the meetings for the purpose of disrupting them. Because of the size and structure of Local 1199, Division Delegate Assemblies are the only vehicle other than elections to office for rank and file members to participate directly in union decision making.

On September 8, 1987, Local 1199, Johnson and five union members filed a complaint in the Southern District of New York, alleging federal question jurisdiction under Section 102 of LMRDA, 29 U.S.C. § 412; Section 301 of LMRA, 29 U.S.C. § 185; and pendent jurisdiction. Plaintiffs alleged violations of Section 101(a)(1) and (2) of LMRDA, 29 U.S.C. § 411(a)(1) and (2), and of state law based on the union’s constitution, stemming from defendants’ alleged intimidation tactics and interference with plaintiffs’ exercise of their member[533]*533ship rights. Kay and five other members of the Executive Council were named as defendants. The complaint sought preliminary and permanent injunctive relief, a declaratory judgment and damages.

On the same day, Johnson attended and chaired the Delegate Assembly meeting of the union’s Hospital Division. Approximately six hundred people attended the meeting, which at times was raucous. At one point Kay called Johnson a name. Johnson ignored the insult, and, shortly thereafter, a delegate called Kay a name. Johnson spoke and was cheered by the delegates. Kay and the other defendants were booed. During the meeting, while a delegate was waiting to speak at a floor microphone, one of the defendants ran off the platform and grabbed the microphone from the delegate. The delegate wrestled the microphone back from the defendant and denounced him.

On September 10, 1987, Johnson and the other officers of the union attended the Guild Division Delegate Assembly, at which approximately two hundred people were present. Johnson spoke at the meeting. Immediately after she finished answering a question, a fuse blew and the microphones went dead. Johnson stepped off the stage and continued to address the delegates. While she was speaking, one of the defendants jumped off the stage and approached her. Delegates pushed toward the defendant, who had to be pulled back onto the stage by the other officers.

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Bluebook (online)
860 F.2d 529, 1988 WL 112817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-kay-ca2-1988.