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Rich Shelley, et al v. American Postal Workers Union

April 8, 2011


The opinion of the court was delivered by: Judge Beryl A. Howell


Three union members, who are appearing as pro se plaintiffs in this case, have significant concerns with a tentative collective bargaining agreement ("CBA") negotiated on their behalf by their union representatives, and seek additional time before the ratification vote in order to communicate those concerns to fellow union members. On April 6, 2011, the plaintiffs Rich Shelley, James Ozanian and Lance Coles, who are members of the American Postal Workers Union ("APWU"), AFL-CIO, filed motions for a temporary restraining order and a preliminary injunction to enjoin the defendant APWU from mailing ballots on April 8, 2011, to its members in connection with the ratification of the new CBA between the APWU and the United States Postal Service ("USPS"). The plaintiffs claim the APWU violated the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 401 et seq, by conducting the ratification vote of the CBA in a way that deprives the plaintiffs of a "meaningful and informed vote." Compl., Prelim. Statement, at 1.

After reviewing the plaintiffs' motions for injunctive relief, the defendant's opposition papers, as well as the accompanying declarations, exhibits and applicable law, and following oral argument, the Court denies the plaintiffs' motions for a temporary restraining order and a preliminary injunction, and dismisses the Complaint for lack of subject matter jurisdiction.


The APWU is a national labor organization headquartered in Washington, DC. Compl., Parties, at 2. This union represents over 200,000 employees of the USPS, including clerks, maintenance employees, motor vehicle service employees and other categories of USPS employees. Pls.' Mot. TRO and Prelim. Inj., Pls.' Decl. (hereinafter "Pls.' Decl."), ¶ 3. The current collective bargaining contract between the APWU and USPS was scheduled to expire on November 20, 2010, but has continued during negotiations for a new contract. Def.'s Opp. to Pls.' Mot. TRO and Prelim. Inj., Elizabeth Powell Decl. (hereinafter "Powell Decl."), Exs. D, E.

On Saturday, March 12, 2011, the APWU reached a tentative new collective bargaining agreement with the USPS and, on Monday, March 14, 2011, posted a seven page summary of the tentative agreement on its website. Powell Decl., ¶ 11; Pls.' Decl., ¶ 4. The APWU subsequently held thirteen briefing meetings around the country and an online webinar, and mailed bulletins regarding the agreement and posted information online, in order to educate members about its terms. Powell Decl., ¶¶ 11-19; Pls' Decl., ¶¶ 7, 8. On March 22, 2011, the APWU posted the full collective bargaining agreement on its website, and stated that it planned to proceed with a mail ratification vote, ballots for which would be mailed to members on April 8, 2011, with a return date of May 10, 2011. The ballots will be counted after that date. Def.'s Mem. in Opp. to Pls.' Mot. TRO and Prelim. Inj. (hereinafter "Def.'s Mem."), at 2 n.2. The APWU explains that the process used for mailing ballots and ratifying the contract are fully consistent with the union's constitution and bylaws, Powell Decl., ¶¶ 6-8, and the plaintiffs do not dispute this point.*fn1

In addition, the APWU states that the timetable for ratification of the tentative CBA at issue in this case compares favorably to ratification timetables followed in two prior instances, and has given members more, not less, time to consider the terms of the agreement. Powell Decl., ¶ 9. Specifically, the total number of days from announcement of the tentative agreement to the mailing of ratification ballots was 20 days and 12 days in 2005 and 2006, respectively, compared to 25 days for the instant agreement; and the total number of days from announcement of the tentative agreement to ballot receipt due date was 38 days and 34 days in 2005 and 2006, respectively, compared to 57 days for the instant agreement. Id.

The plaintiffs complain that, despite these efforts, the APWU did not include many specific provisions of the tentative agreement in its "highlight summary," did not afford sufficient time for questions and answers at its meetings, and have denied plaintiffs' requests for additional time before the mailing of ratification ballots "to organize for a 'no vote.'" Pls.' Decl., ¶¶ 6, 7, 14. In response to the union's ratification vote, the plaintiffs formed a Facebook page, and have distributed flyers and emails to members urging them against ratification of the agreement. The plaintiffs now seek a delay of thirty days in the APWU's mailing of ratification ballots to afford them more time to inform union members regarding the agreement.


The court may issue a temporary restraining order ("TRO") when a movant is faced with the possibility that irreparable injury will occur even before the hearing for a preliminaryinjunction required by Federal Rule of Civil Procedure 65(a) can be held. FED. R. CIV. P. 65(b)(1). The purpose of a TRO is to maintain the status quo of a case until the court has an opportunity to hear a request for fuller relief. Id.; see, e.g., Hosp. Res. Pers., Inc. v. United States, 860 F. Supp. 1554, 1556 (S.D. Ga. 1994) (explaining that the purpose of a TRO is to preserve the status quo pending a hearing for a preliminary or permanent injunction). The factors that apply in evaluating requests for a TRO are identical to those that apply in evaluating requests for preliminary injunctions. See Al-Fayed v. C.I.A., 254 F.3d 300, 303 n.2, (D.C. Cir. 2001); Sobin v. Bechtol, 168 Fed. Appx. 452, 452 (D.C. Cir. 2005) (citing Jacksonville Port Auth. v. Adams, 556 F.2d 52, 57 (D.C. Cir. 1977)); Beattie v. Barnhart, 663 F. Supp. 2d 5, 8 (D.D.C. 2009);Morgan Stanley DW, Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001). In this case, the Court considers the motions for both the TRO and preliminary injunction together.


To warrant injunctive relief, the plaintiff "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, 129 S.Ct. 365, 374 (2008); Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011). The purpose of a preliminary injunction "is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). It is an extraordinary form of interim relief, however, and "should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (internal citations omitted). These four preliminary injunction factors "interrelate on a sliding scale," and the Court must balance the strengths of the factors against each other. Ass'n of Cmty. Orgs. for Reform Now v. FEMA, 463 F. Supp. 2d 26, 33 (D.D.C. 2006) (citing Serono Labs v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir. 1998)). A particularly weak argument for one factor may be more than the other factors can compensate for, however. See, e.g., Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 (D.C. Cir. 1995) (finding that given the inadequacy of the plaintiff's prospects for success on the merits, there may be no showing of irreparable injury that would entitle him to injunctive relief). In meeting the requisite burden for injunctive relief, "it is particularly important for the movant to demonstrate a likelihood of success on the merits." Konarski v. Donovan, No. 10-cv-1733, 2011 WL 383995, at *2 (D.D.C. Feb. 7, 2011). Without a "substantial indication" of the plaintiff's likelihood of success on the merits, "there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review." Elite Entm't, Inc. v. Reshammiya, No. 08-cv-0641, 2008 U.S. Dist. LEXIS 31580, at *4 (D.D.C. Apr. 18, 2008) (citing Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999)). Assessing the likelihood of success on the merits "does not involve a final determination of the merits, but rather the exercise of sound judicial discretion on the need for interim relief." Nat'l Org. for Women, Wash. D.C. Chapter v. Soc. Sec. Admin. of the Dep't of Health and Human Servs., 736 F.2d 727, 733, (D.C. Cir. 1984) (footnote and internal quotation marks omitted).


Plaintiffs' motions for injunctive relief require the Court to assess prospectively the merits of the plaintiffs' case and their need for immediate judicial intervention. Although plaintiffs claim irreparable harm if the APWU goes forward with its ratification mailing on April 8, 2011, plaintiffs challenge to the ratification process does not appear to have a likelihood of success, nor does the harm they allege rise to the level that warrants extraordinary relief.

1.Lack of Subject Matter Jurisdiction

At the outset, in evaluating plaintiffs' likelihood of success on the merits, the Court must first determine that it may properly exercise jurisdiction over the action. Plaintiffs assert that the Court has subject matter jurisdiction under Title I of LMRDA, 29 U.S.C. §§ 411-12. Title I protects union members against discriminatory application of union rules. See 29 U.S.C. § 411(a)(1). Title I further provides that "any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this ...

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