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
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
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.
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
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
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 ...