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Dimondstein v. American Postal Workers Union

United States District Court, District Circuit

August 29, 2013




Plaintiffs Mark Dimondstein, Tony McKinnon, and Violetta Ward (“Plaintiffs”) have filed suit against Defendant the American Postal Workers Union (“Defendant” or “APWU”), challenging the Defendant labor union’s refusal to disseminate Plaintiff’s campaign literature via e-mail at Plaintiffs’ expense. Presently before the Court is Plaintiffs’ [2] Motion for a Preliminary Injunction. Upon consideration of the pleadings[1], the relevant legal authorities, and the record as a whole, the Court finds that Plaintiffs are likely to succeed on the merits of their claim. The Court further concludes that Plaintiffs have shown a likelihood of irreparable injury in the absence of injunctive relief, that the balance of equities favors Plaintiffs, and that an injunction would be in the public interest. Given these considerations, the Court finds that injunctive relief is warranted in this case. Accordingly, Plaintiffs’ motion is GRANTED.


A. Factual Background

Plaintiffs Mark Dimondstein, Tony McKinnon, and Violetta Ward are members of Defendant American Postal Workers Union, who are running for the offices of President, Industrial Relations Director, and Secretary-Treasurer, respectively, in an election this fall. Pl.’s Mem. at 1. Together, the three Plaintiffs are members of a candidate slate, which they have called “APWU Members First Team.” Id. The ballots for this fall’s APWU election will be sent out to the union membership on September 12 and 13, 2013. Def.’s Stmt. ¶ 3.

As part of their pre-election campaign efforts, Plaintiffs seek to send their campaign literature to the union membership via e-mail, at their own cost. Pl.’s Mem. at 1. Plaintiffs have already employed or plan to employ traditional methods of campaigning, such as personal interactions at postal sites around the country or postal mailings of campaign literature to union members. Id. However, because such forms of campaigning are expensive, with each postal mailing potentially costing candidates more than $100, 000, Plaintiffs seek to use the additional, and substantially less expensive, avenue of e-mail to communicate with union voters. Id.

Defendant APWU has approximately 193, 000 members. Def.’s Opp’n. at 2. Of these members, approximately 41, 000 are retirees. Id. Defendant maintains a database with information about its members using a software system called iMIS. Id. The iMIS database contains e-mail addresses for a portion of Defendant’s members, which have been collected in several ways. First, Members attending conferences, meetings, seminars, or conventions are sometimes asked for their e-mail addresses as part of the process of registration. Id. at 3. In addition, starting in approximately 2008, the sign-up form for Defendant union, known as an 1187 form, was changed to allow new enrollees the option of providing their e-mail addresses. Id. Finally, members are permitted to go to the members-only portion of the APWU webpage and add their e-mail addresses to their member profile. Def.’s Stmt. ¶ 9. In total, the APWU iMIS database contains approximately 27, 000 e-mail addresses. Id. ¶ 6.

While the APWU contends that it does not use the 27, 000 e-mail addresses in the iMIS database to communicate with members, id. ¶ 8, in the past, Defendant has used this database to populate two separate lists, which are used for e-mail outreach. Id. ¶¶ 19, 23-24. First, in 2006, the APWU created the APWU e-Team, an e-mail list of members, family members, and supporters of the union. Id. ¶¶ 12-14. The members of this list receive weekly legislative updates from Defendant’s Legislative Department that are designed to generate interest and action in support of APWU’s legislative positions. Id. Individuals can sign up to be on the e-Team through the APWU web page or by filling out a paper form. Id. ¶¶ 18. In addition, as stated by Myke Reid, the former Legislative Director of the APWU, the iMIS database of member addresses has been used on at least one occasion to populate the e-Team list. Id., Reid Decl. ¶ 6. Currently, the e-Team has approximately 21, 000 members. Id. ¶ 21.

The other form of e-mail outreach used by Defendant involves communications with retired union members. The APWU Retiree Department maintains an e-mail list for roughly 3, 800 of the approximately 41, 000 retired members of the union. Id. ¶ 22. The Retiree Department sends a weekly e-mail to these members – known as the “Friday Alert” – that is prepared by the Alliance for Retired Americans, an organization separate from Defendant. Id. According to Defendant, this retiree list is not formally connected to the iMIS database. Id. Nevertheless, as with the e-Team list, the iMIS database has been used to populate the retiree email list. Id. ¶¶ 23-24. In February 2013, the Retiree Department received approximately 5, 000 e-mail addresses from iMIS and then had its contractor remove duplicate e-mail addresses. Id. ¶ 23. In addition, in April 2013, the APWU IT Department created a list of e-mail addresses for 2, 435 APWU members who had agreed to accept an incentive for voluntary early retirement. Id. ¶ 24.

B. Procedural History

On July 2, 2013, Plaintiff Dimondstein sent Defendant a request to use the member email addresses in the union’s possession to send campaign literature for himself and the rest of his candidate slate at Plaintiffs’ expense. Id. ¶ 47. Dimondstein also asked Defendant for information about how the e-mail addresses could be divided into separate categories of membership, as he sought to send different campaign communications to members in specific geographic or job categories. Pl.’s Mem. at 2.

On July 15, 2013, Anthony Turner, the Chairperson for Defendant’s Election Committee responded to Plaintiff Dimondstein’s letter stating that “it is not the policy of the APWU to provide the e-mail address of members.” Def.’s Stmt., Decl. of Elizabeth Powell, Exhibit T (Letter from Anthony Turner to Mark Dimondstein). Subsequently, on July 19, 2013, Plaintiff Dimondstein sent an appeal to the APWU’s Election Appeals Committee. Pl.’s Mem. at 2. Through its general counsel, Defendant in a July 19, 2013 e-mail informed Plaintiffs’ counsel that Defendant was unwilling to comply with Plaintiffs’ request. Id., Affidavit of Paul Alan Levy, Exhibit J (E-mail exchange between Paul Alan Levy and Darryl Anderson)

On August 9, 2013, Plaintiffs filed suit in this Court against Defendant alleging that the APWU violated section 401(c) of the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”), 29 U.S.C. § 481(c), by refusing Plaintiffs’ request to distribute campaign literature, at Plaintiffs’ expense, via e-mail to APWU members. Plaintiffs simultaneously sought a preliminary injunction compelling the union to send Plaintiffs’ campaign literature, at Plaintiffs’ expense, to union members by e-mail prior to this fall’s union election. As noted, the ballots in this fall’s election will be mailed on September 12 and 13, 2013. Def.’s Stmt. ¶ 3.

On August 13, 2013, the Court held an on-the-record conference call with counsel for both parties. During this call, Plaintiffs’ counsel stated that Plaintiffs were willing to pay any and all costs associated with e-mail distribution of their candidate communications, including expenses due to a third party contractor chosen by Defendant to coordinate the mailing. Transcript of Aug. 13, 2013 Conference Call at 19:9-16. In addition, Defendant’s counsel, although noting his reluctance to discuss technical issues, stated his belief that compiling a list of e-mail addresses from the iMIS database would not prove particularly time-consuming. Id. at 6:17-20. The parties’ counsel further indicated that because of the fast-approaching date for sending out ballots, a decision as to Plaintiff’s [2] Motion for a Preliminary Injunction would be required by the beginning of September 2013. Id. at 6:20-25, 25:4-6.


A temporary restraining order or preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction must establish that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, ...

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