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AMERICAN FEDERATION OF STATE CTY. v. UNITED DOMESTIC WKRS.

August 9, 2005.

AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO and FLORA WALKER as ADMINISTRATOR OF UNITED DOMESTIC WORKERS OF AMERICA/NUHHCE, AFSCME, AFL-CIO, Plaintiffs,
v.
UNITED DOMESTIC WORKERS OF AMERICA/NUHHCE, AFSCME, AFL-CIO, et al. Defendants.



The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge

ORDER GRANTING APPLICATION FOR AN OSC RE: CONTEMPT; GRANTING APPLICATION FOR EXPEDITED DISCOVERY; AND DENYING APPLICATION FOR A TRO
Plaintiffs American Federation of State County and Municipal Employees, AFL-CIO ("AFSCME") and Flora Walker, in her capacity as Administrator of United Domestic Workers of America/NUHHCE, AFSCME, AFL-CIO (collectively "Plaintiffs") have filed an ex parte application for (1) an Order to Show Cause Re: Contempt against Defendants Kenneth Seaton Msemaji and Fahari Jeffers; (2) a Temporary Restraining Order and OSC re: Preliminary Injunction in Aid of Arbitration against Defendant SEIU Local 434B; and (3) an Order Granting Leave to Take Expedited Discovery. On August 1, 2005, the Court held a hearing on the ex parte application. For the reasons set forth below, Plaintiffs' applications for an OSC re: contempt and expedited discovery are GRANTED and Plaintiffs' application for a TRO is DENIED. I. PROCEDURAL HISTORY

On June 17, 2005, Plaintiffs filed this action, seeking enforcement of an administratorship imposed upon UDW.

  On June 20, 2005, Plaintiffs filed an application for a temporary restraining order. The following day, the Court held a hearing on the application. The Court granted Plaintiffs' application in part and enjoined Defendants from (1) drawing or transferring funds from UDW's General Fund Account at Neighborhood National Bank or dissipating or transferring any other funds or assets of UDW unless ordered by the Court; and (2) destroying, removing, secreting, or altering the financial records or any other records of UDW or any records relating to UDW, including computer files. The TRO was to remain in effect until the Court ruled on Plaintiffs' motion for preliminary injunction, which was scheduled to be heard on Monday, June 27, 2005 at 2:00 p.m.

  On the afternoon of June 24, 2005, a Friday, the Court received a notice from UDW's counsel that UDW had scheduled a referendum on the issue of merging with Service Employees International Union ("SEIU"), Local 434B. The vote was scheduled to take place at 9:00 a.m. on June 27, 2005. Plaintiffs' counsel also received the notice and telephoned chambers to obtain a hearing for an emergency TRO application.

  The Court held a telephonic hearing at 4:10 p.m. on June 24, 2005. During the hearing, counsel for UDW indicated that the referendum was originally scheduled to take place in July. The Court concluded that UDW was attempting to divest the Court of jurisdiction and render the controversy moot. Based on the actions of UDW, the Court determined that it would be appropriate to enforce the administratorship on a temporary basis and issued a temporary restraining order enjoining Defendants from (1) refusing to turn over possession and control of the offices of UDW to Flora Walker, as Administrator of UDW, or her designee; (2) refusing to deliver all property, funds, books, records, and assets of any kind in their possession to Flora Walker, as Administrator of UDW, or her designee; (3) representing themselves as the authorized officers and/or representatives of UDW, unless so authorized by the Administrator or her designee; (4) interfering in any manner with the conduct of the administratorship by Flora Walker or her designee; or (5) destroying, removing secreting, or altering the financial records of UDW or any financial records relating to UDW.

  In an order filed on June 30, 2005, the Court granted Plaintiffs' motion for preliminary injunction and incorporated the terms of the TRO as the terms of the preliminary injunction.

  On July 26, 2005, Plaintiffs filed a First Amended Verified Complaint for Declaratory and Injunctive Relief ("FAC"), which adds as a defendant SEIU Local 434B.

  II. PERTINENT FACTS

  In June of 2000, UDW/AFSCME and SEIU entered into a Memorandum of Understanding ("MOU"), the purpose of which was to "establish a final determination of organizing jurisdiction for In Home Supportive Services home care workers in the State of California." (Exh. H to FAC.) Pursuant to the agreement, 58 California counties were divided up between AFSCME/UDW or SEIU for the purposes of exclusive organizing jurisdiction. The MOU provided that any future adjustments to the assignments could only be made through discussions or negotiations between UDW/AFSCME and SEIU.

  In November of 2000, AFSCME and SEIU entered into a written agreement ("Homecare Council Agreement") pursuant to which UDW/AFSCME was granted membership in the California Homecare Council. (Exh. I to FAC.) Under the agreement, SEIU and UDW/AFSCME agreed to develop coordinated legislative and organizing programs for homecare in California.

  The Homecare Council Agreement provides that "there will be only one local union in the Council organizing or representing workers in each county." (Paragraph 4.1.) The Agreement also incorporates the MOU's assignment of organizing jurisdiction. (Paragraph 5.1.) Disputes regarding the interpretation and application of the Agreement are to be resolved by dispute resolution procedures set forth in Paragraph 7.2 as follows:
If a dispute of any type involving the interpretation and application of the Agreement cannot be resolved by the Homecare Council, the affected local/affiliate may appeal the dispute to the International Presidents who shall direct the Organizing Directors of AFSCME and SEIU to meet in an attempt to resolve the dispute.
If a dispute cannot be resolved by the Organizing Directors, it may be referred by either party to mediation first and, if mediation is not successful, to arbitration . . . The arbitrator shall [have] authority to issue the remedy the arbitrator deems appropriate to effectuate the intent of the parties the decision shall be final and binding.
Plaintiffs claim that since June 2005, SEIU Local 434B, Seaton Msemaji and Jeffers, as well as other former officers and employees of UDW, acting in concert, have engaged in a wide-scale organizing campaign against UDW/AFSCME within several of the counties in which UDW/AFSCME has exclusive jurisdiction.
  Plaintiffs allege that during the week of July 4, 2005, SEIU initiated a mass mailing of literature to existing members of UDW/AFSCME within a majority of the 29 counties assigned to UDW/AFSCME. The mailing included a letter signed by Msemaji and Jeffers, who identify themselves as "UDW Founders," and Tyrone Freeman (General President of SEIU Local 434B) and Amanda Figueroa (Secretary-Treasurer of SEIU Local 434B). (Exh. J to FAC.) The letter states:
In our efforts to WIN you a wage increase from this new money, the founders of UDW and its founding officers have all agreed that we must UNITE HOMECARE workers into ONE strong UNION: SEIU Local 434b.
Therefore, Ken, Fahari, Amanda, and I, ask that you sign the attached membership card and drop it in the mail today, postage paid.
Remember, we are working to build POWER for homecare workers. If you want better wages, benefits, and services, then JOIN our UNITED union today. SIGN and RETURN the enclosed membership card.
The letter attaches a membership form to join SEIU Local 434B.
  According to Plaintiffs, SEIU Local 434B also initiated a mass telephone call campaign in conjunction with the earlier mailings. Pre-recorded telephone messages from Msemaji and Jeffers reiterated that the founders of UDW and its founding officers have agreed to unite home care domestic workers into one union (434B) and urged UDW members to sign the membership card to obtain better wages, benefits, and services. (Transcript of telephone message attached as Exh. K to FAC.)

  Plaintiffs also allege that individuals representing that they were from UDW or acting on behalf of UDW made in-person visits to UDW members residing in counties that have been exclusively assigned to UDW for purposes of organizing. (Frank Decl., ¶ 9.) These individuals made representations that SEIU and UDW were merging and that by signing the membership card, the UDW members were agreeing to the merger. (Exh. A to Frank Decl.) A number of UDW members signed the card based on the erroneous belief that they were supporting a merger of SEIU and UDW. (Declarations of Susan H. Parker, Laura Corbett, Dustin Corbett, and Casandra Wilson.)

  Plaintiffs further allege that Local 434B has been using a UDW/AFSMCE membership list to facilitate its organizing efforts. Plaintiffs claim that this list was provided to Local 434B by former officers of UDW prior to June 14, 2005, for purposes of carrying out the Servicing Agreement.

  On July 25, 2005, AFSCME invoked the dispute resolute and arbitration process under the ...


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