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CAROTHERS v. PRESSER

June 12, 1986

William J. CAROTHERS, et al., Plaintiffs,
v.
Jackie PRESSER, et al., Defendants



The opinion of the court was delivered by: GASCH

 GASCH, District Judge.

 I. INTRODUCTION

 This case is before the Court on the parties' cross-motions for summary judgment. Plaintiff truck drivers are members of defendant International Brotherhood of Teamsters. They are also members of a group of dissidents within the union known as Teamsters for a Democratic Union, or "TDU". They have sued under the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 411, for the right to use defendant union's mailing list, at plaintiffs' expense, to disseminate their views concerning the wisdom of ratifying a proposed contract. The Court's jurisdiction is established in 29 U.S.C. § 412, giving it broad powers to fashion appropriate relief to protect union members' rights under Section 411.

 A. The Facts

 Plaintiffs are three of 23,000 members of defendant International Brotherhood of Teamsters ("IBT") who are known as "carhaulers," because they drive trucks that deliver new automobiles and other vehicles. The IBT national negotiating committee, chaired by defendant Jackie Presser, the president of the IBT, negotiates a contract for the carhaulers every three years. This collective bargaining pact is referred to as the National Automobile Transporters Agreement, or "NATA". NATA governs relations between 100 locals and 39 employers. The industry-wide contract has several components: a master agreement that sets wages and conditions nationwide, and supplemental agreements that set varying terms by region or by job classification within the carhaulers' union. Prior to a contract vote, the union typically distributes to each member a copy of the proposed national pact and only the supplemental agreement applicable to him. However, under the IBT Constitution, Article XVI, § 4, and by court ruling, both the national contract and all the supplementals must be submitted for nationwide ratification. Thus, supplemental agreements that affect only one region must be approved by the entire membership. Davey v. Fitzsimmons, 413 F. Supp. 670 (D.D.C.1976). Theoretically, therefore, a supplemental agreement that affected only carhaulers in the southeast but approved by the majority of carhaulers in all other regions, could be ratified even though the majority of the carhaulers in the southeast opposed it.

 On May 31, 1985, the most recent carhaulers contract expired, and shortly thereafter, a new collective bargaining agreement was submitted to the members for ratification. The ballot letter contained a notice from the negotiating committee urging ratification, but the proposal was rejected. A strike followed, beginning on July 26, 1985, that stopped deliveries to auto dealers for several weeks. Additional negotiations followed, and a second proposed contract was submitted to the members. This ballot packet did not contain any letter from the leadership urging ratification. It simply included the proposed contract, with the changes negotiated since the strike printed in red. This contract was ratified 8,792 to 6,808. It is in effect until May 31, 1988.

 Between the time the first proposal was voted down and the second proposal was negotiated, plaintiffs asked defendants to give them access to a mailing list of members so that plaintiffs could inform the members of their opposition to the second proposal, if they were unhappy with it. Plaintiffs are members of the Carhaul Coordinating Committee, a subsection of the TDU. *fn1" The Committee did not have the names and addresses of all 23,000 carhaulers, but sought at its own expense to obtain the use of the IBT's computerized list of members. This would be accomplished by submitting the TDU materials to a mailing service of defendants' choice. Therefore, the mailing list need never leave control of defendants.

 Defendants, however, declined to provide the list. They informed the TDU members the union was not legally obligated to do so, because the second ballot packet would not contain any letter from the union leadership urging ratification. As a result, just a few days before the second ballot packets were to be posted, plaintiffs filed suit in this Court seeking a temporary restraining order preventing the ballots from being mailed until access to the mailing list was provided. Judge Oberdorfer, sitting as motions judge, denied the TRO, in part because he feared irreparable harm would result from a delayed vote, which would exacerbate the economic injury to the auto industry. Carothers, et al. v. Presser, et al., Order, No. 85-2645 (August 21, 1985) ("Order"). Thus the voting commenced and the contract was ratified.

 B. The Issues

 Defendants move to dismiss on the theory that the complaint regarding the 1985 election is moot, or in the alternative, they ask for summary judgment on the theory that these sections of LMRDA do not create the right plaintiffs seek to enforce. Specifically, they argue plaintiffs must demonstrate unequal treatment to make out a violation of Section 411(a)(1), and that the free speech rights guaranteed by Section 411(a)(2) are triggered only if the union has penalized a member for speaking his mind. For the reasons stated below, the Court determines the case is not moot, and will enter summary judgment for plaintiffs.

 II. MOOTNESS

 Defendant IBT argues this Court lacks jurisdiction because the case has been mooted by the 1985 ratification vote, which precludes the possibility of this dispute arising again between these parties. An active case or controversy must continue to exist between the parties during all phases of the proceeding, or the case may not be heard. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979).

 However, a case is not moot where the dispute is "capable of repetition yet evading review." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975). In such a situation, a case will not be deemed moot when the challenged action was too short in duration to be fully litigated, and there is a "reasonable expectation" that a similar controversy will arise between the same parties, raising similar questions of law. Id.; Gannett Co. v. de Pasquale, 443 U.S. 368, 377, 99 S. Ct. 2898, 2904, 61 L. Ed. 2d 608 (1979).

 Defendants argue that it is not reasonable to expect a similar controversy to arise, as it is not known whether plaintiffs would oppose a proposed contract in the future or whether they would wish to circulate information concerning that proposal. This argument is misplaced in election cases, where the doctrine of taking jurisdiction when the case is "capable of repetition yet evading review" has greater force, because elections are conducted on short timetables. E.g., Democratic Party v. Wisconsin, 450 U.S. 107, 115 n. 13, 101 S. Ct. 1010, 1015 n. 13, 67 L. Ed. 2d 82 (1981); Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S. Ct. 1274, 1282 n. 8, 39 L. Ed. 2d 714 (1974). This is especially so in the case of a union election, where the issue is unlikely to be resolved in a motion for a temporary restraining order, because of the likelihood that economic harm would accompany a delay in voting. See, e.g., Order, supra.

 Defendant IBT relies on Bauman v. Presser, in which union dissidents challenged a surprise, mid-term contract ratification vote. 117 LRRM 2393 (D.D.C. 1984). Judge Bryant enjoined the union from continuing balloting that was already underway, and ordered it to conduct a new vote. By the time the case was appealed, the second vote had been tabulated and a new contract was in force. The Court of Appeals declared the case moot and vacated Judge Bryant's opinion. Bauman v. Presser, C.A. No. 84-02699 (D.C.Cir. Jan. 23, 1985) (IBT Exh. 9). The appeals court stated in an unpublished opinion that the case was moot because "there is no reasonable expectation or demonstrated probability that the same controversy will recur involving the same complaining party. . . . It is apparent from the district court's memorandum . . . that the action enjoined constituted a departure from established norms; the claim that such departures will recur is mere speculation." Id.

  However, the present case may be distinguished on several grounds. In Bauman, an injunction actually issued. An appeal from a preliminary injunction that has been fully carried out is moot. University of Texas v. Camenisch, 451 U.S. 390, 398, 101 S. Ct. 1830, 1835, 68 L. Ed. 2d 175 (1981). Here, however, no injunction was granted. More significantly, the present case is based on a set of facts that do not constitute "a departure from established norms." Rather, the complaint challenges routine IBT voting procedures that are likely to be in place during the next contract ratification process. Plaintiffs have opposed every carhauler contract proposed since 1979, which makes it reasonable to predict they will do so in ...


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