OVERVIEW: Plaintiffs commenced this action against defendants alleging violations of federal labor laws. Before the court was plaintiffs' motion for leave to amend the complaint and for a preliminary injunction prohibiting the inclusion of an "open shop" clause in a collective bargaining agreement. Regarding the motion for leave to amend, plaintiffs sought to omit one plaintiff, add another defendant, and add additional claims, including breach of the duty of fair representation against defendant labor union. The court granted the motion in part and denied it in part. The court ordered that the complaint could be amended if it comported with particular requirements, including that the complaint contain less confusing headings. The court also held that plaintiffs could include a claim for breach of a duty of fair representation if they more clearly alleged that any act of which they complained was discriminatory. However, the court denied plaintiffs' motion for an injunction, ruling that plaintiffs failed to show they would suffer irreparable harm if an "open shop" clause were included, and because there was no evidence that such a clause was even being proposed by defendants.

OUTCOME: The court granted the motion in part and denied it in part. The court ordered that the complaint could be amended if it comported with particular requirements, including that the complaint contain less confusing headings. The court denied plaintiffs' motion for an injunction, ruling that plaintiffs failed to show they would suffer irreparable harm if an "open shop" clause were included.

CORE TERMS: irreparable harm, hiring hall, preliminary injunction, open shop, shredding, negotiations, undertaken, headings, duty of fair representation, collective bargaining, federal law, presently, referral, oppose
 

 Labor & Employment Law : Collective Bargaining & Labor Relations : Fair Representation

A union breaches its duty of fair representation if it acts arbitrarily, discriminatorily or in bad faith.

 Labor & Employment Law : Collective Bargaining & Labor Relations : Fair Representation

A union's duty of fair representation extends to negotiations undertaken on its members' behalf.

 Civil Procedure : Injunctions : Preliminary Injunctions

In order to establish an entitlement to a preliminary injunction, plaintiffs must demonstrate (1) that, in the absence of such relief, they are likely to suffer irreparable harm, and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits and a balance of hardships which tips markedly in their favor.

COUNSEL: For PLAINTIFF: Michael J. Stachowski, Esq., Buffalo, NY.
 
For DEFENDANT: Lawrence A. Kravitz, Esq., c/o Gorlick, Kravitz and Listhaus, P.C., New York, NY.
 
For DEFENDANT: Harry Bernard Bronson, Esq., c/o Blitman & King, Rochester, NY.

JUDGES: John T. Elfvin, S.U.S.D.J.

OPINIONBY: John T. Elfvin

OPINION: MEMORANDUM and ORDER

Plaintiffs commenced this action November 19, 1998 alleging violations of various federal labor laws by the defendants. Answers to the Complaint were filed January 11, 1999. Presently before this Court is the plaintiffs' May 7th motion for leave to amend the Complaint and for a preliminary injunction. For the reasons hereinbelow stated, that motion will be granted in part and denied in part.

Plaintiffs seek leave to file an Amended Complaint which (i) omits Eddie Bell's name as a plaintiff, (ii) adds Steve Hammond, Trustee of Laborers' Local 210, as a defendant, (iii) adds a claim against defendant Rosetti for shredding unspecified documents "which are irreplaceable" and allegedly belonged to Local 210, (iv)  [*2]  asserts a claim for breach of the duty of fair representation against defendant Laborers' International Union of North America ("the International") arising out of the inclusion of an "open shop" clause in proposed collective bargaining agreements and (v) advances a claim against the International, Hammond and Rosetti for failing to follow the International's "uniform hiring practices," for "job referral discrimination" against certain Local 210 members and for failure to follow certain "job referral procedures." A proposed Amended Complaint has been submitted. The defendants do not oppose dropping Bell and adding Hammond, but oppose granting leave to assert the proposed claims. Specifically, Rosetti argues that shredding documents, in and of itself, is not violative of federal law and all defendants argue that the remaining proposed amendments do not state claims upon which relief may be granted.

A union breaches its duty of fair representation if it acts arbitrarily, discriminatorily or in bad faith. Air Line Pilots v. O'Neill, 499 U.S. 65, 67, 113 L. Ed. 2d 51, 111 S. Ct. 1127 (1991). A union's duty extends to negotiations undertaken on its members' behalf. Id. at 77.  [*3]  Consequently, this Court finds that the proposal of certain terms in collective bargaining agreements and the implementation of hiring hall procedures might give rise to claims upon which relief may be granted. However, the plaintiffs must more clearly allege that any act of which they complain was arbitrary, discriminatory and/or undertaken in bad faith. Also, the plaintiff has failed to demonstrate that the shredding by Rosetti of unidentified documents gives rise to a claim under any federal law. Leave to assert such claim will not be granted. Further, this Court finds that the proposed Amended Complaint is confusing in that the plaintiffs' claims apparently are separated by the headings "As and For a First Cause of Action," "Irreparable Harm Caused by the Abusive Trusteeship," "Failure to Provide Information," "Suppression of Free Speech and Free Expression," "Breach of Fiduciary Duties," "As and For a Fifth Cause of Action," "As and For a Sixth Cause of Action" and "As and For a Seventh Cause of Action." In such form, it is unduly difficult to discern precisely what and how many claims the plaintiffs are advancing. The forthcoming Amended Complaint must more clearly make any use  [*4]  of headings in order to avoid such problem. Finally, there being no opposition from the defendants, Hammond may be added as a party defendant and Bell may be removed.

Also sought is a preliminary injunction prohibiting Hammond "from disseminating and including in negotiations, 'the open shop' proposals in the present collective bargaining process" and enjoining "the implementation of new hiring hall procedures." Plaintiffs' Notice of Motion filed May 5, 1999. In order to establish an entitlement to such relief, the plaintiffs must demonstrate (1) that, in the absence of such relief, they are likely to suffer irreparable harm and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits and a balance of hardships which tips markedly in their favor. Covino v. Patrissi, 967 F.2d 73, 76-77 (2d Cir. 1992). Firstly, it is contended that an "open shop" clause "will seriously impair the union's ability to function as a union, and will, in effect, abrogate the union's ability to enter into project labor agreements and require that union construction workers be required to work union construction jobs." Affirmation of Michael J. Stachowski, Esq.  [*5]  filed May 7, 1999, P 10. However, such falls far short of demonstrating that the plaintiff organization or its members will suffer irreparable harm if such a clause is included in the collective bargaining agreement. Further, the plaintiffs have presently failed to establish either that such a clause is indeed being proposed by the defendants -- no specific evidence that it is has been submitted -- or, more importantly, that such a proposal would be unlawful. With respect to the second facet of the sought injunction, a careful reading of the plaintiffs' papers does not reveal precisely what new hiring hall procedures it is contended ought to be enjoined, how such procedures are unlawful or how such procedures will lead to the infliction of irreparable harm upon the plaintiff organization or its members. Stachowksi's Affirmation and the Affidavit of Marc Panepinto, Esq. filed May 26, 1999 -- the only documents submitted in support of the instant motion -- are for the most part vague and conclusory and provide absolutely no legal basis for injunctive relief.

The plaintiffs' application for a preliminary injunction is also fatally flawed because no affidavit attesting to the necessity  [*6]  of such relief -- other than those from the plaintiffs' attorneys -- and no memorandum of law have been served and filed in connection therewith. See Rule 7.1(e) of this Court's Local Rules.

Accordingly, it is hereby ORDERED that the plaintiffs' motion is granted insofar as it seeks leave to amend the Complaint, that the plaintiffs shall serve and file within 20 days of the entry of this Order an Amended Complaint that comports with this Order and that the plaintiffs' motion is denied in all other respects.
 
DATED: Buffalo, N.Y.

June 7, 1999

John T. Elfvin

S.U.S.D.J.