BNA Daily Labor Report: UTU Merger on Hold

June 30, 2008: A federal judge June 26 enjoined the pending merger between the United Transportation Union and the Sheet Metal Workers International Association, finding that UTU members were not aware when they approved the merger of conflicts between the constitutions of the two unions (Michael v. United Transp. Union, N.D. Ohio, No. 1:07-cv-3818, preliminary injunction issued 6/26/08).

Granting a request by four UTU rank-and-file members for a preliminary injunction to prevent the merger from going forward until UTU members vote on a new constitution, Judge John R. Adams of the U.S. District Court for the Northern District of Ohio found that the plaintiffs had shown a substantial likelihood of success on their claim that they were deprived of a "meaningful vote" on the merger, a violation of the Labor-Management Reporting and Disclosure Act.

The merger of UTU and SMWIA to form the International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART), was scheduled to take effect Jan. 1, 2008, but Adams Dec. 27 issued a temporary restraining order putting the merger on hold (6 DLR A-11, 1/10/08). The TRO resulted from a suit filed Nov. 30, 2007, by four UTU members against the union and its then-President Paul Thompson, charging LMRDA violations. The plaintiffs charged that a copy of the new SMART constitution was not made available to UTU members before the vote.

According to Adams, in June 2007, then-UTU-President Thompson informed the members of the union's board of directors about the terms of the merger he had negotiated with the SMWIA's president and requested their approval. During discussions, the board learned that the UTU and SMWIA constitutions would be joined in their entirety to become the SMART constitution. The board voted to submit the merger agreement to the membership for its approval or rejection.

A mailing was sent to UTU members in July 2007 that included a copy of the merger agreement, supporting materials, and directions for telephone electronic voting that was to take place from July 17 to Aug. 7. While the agreement said that the new union would be governed by the SMART constitution, the packet did not include a copy of that constitution nor copies of the unions' current constitutions.

Meanwhile, UTU was scheduled to have its convention in August 2007, and Thompson admitted during a May 28, 2008, hearing before Adams that the UTU leadership "knew at the time of the merger vote that the convention would likely result in amendments to the UTU constitution," making it impossible to know the "extent of the conflicts between the UTU and SMWIA constitutions," which would form the SMART constitution.

The vote, nonetheless, took place, and out of 68,000 mailed ballots, 12,097 members voted with 8,625 casting votes in favor of the merger.

The UTU convention elected new officers, and Malcolm Futhey succeeded Thompson as president Jan. 1, 2008. When the plaintiffs attempted to substitute Futhey for Thompson in the litigation, six vice presidents and the legislative director of UTU, who all supported the merger, sought to intervene as defendants because they were concerned that as president Futhey would not defend against the plaintiffs claims.

As Adams was considering whether to allow the UTU officers to intervene, Futhey and the UTU board agreed to attempt to produce a SMART constitution so that a new vote could be conducted among the membership. The agreement was included in the terms of an extension of the TRO, which was to last until 10 days after the court ruled on the motion to intervene.

In a June 18 decision, Adams ruled that the UTU officers and legislative director may intervene in the case. Adams, however, ruled that Thompson could not intervene in the case.

Four Factors Considered

In granting the June 26 injunction, Adams reviewed four factors—the likelihood the plaintiffs would be successful on the merits, whether the plaintiffs may suffer irreparable harm if the injunction was not granted, whether granting the injunction would cause substantial harm to others, and the impact of an injunction upon the public interest.

Finding the plaintiffs likely to be successful, Adams said that the SMART constitution never was provided to UTU members prior to their approval of the merger. "The failure to provide such relevant information constituted a failure to disclose the relevant terms of the proposal between the parties. Plaintiffs therefore have demonstrated a substantial likelihood of success on their claims that they were deprived of a meaningful vote."

Adams found that UTU members were harmed through the failure of their elected officials to provide them adequate information prior to the merger vote. Noting that a review by attorneys involved in the merger found the possibility of 40 conflicts between the two unions' constitutions, Adams wrote: "Members were forced to vote with little or no knowledge of the conflicts between the two Constitutions that could ultimately lead to a SMART Constitution with terms very different from that of the current UTU Constitution. The SMART Constitution would then govern their working lives for the foreseeable future." Without information about the possible changes to the constitution, the UTU members' votes "cannot be said to be meaningful," he added.

Adams also found that no substantial harm would occur to others if he issued an injunction. "No harm will befall the UTU if an injunction prohibits the merger from being effectuated. Instead, an injunction will ensure that the merger will not take place until a meaningful vote on the SMART Constitution has occurred." In addition, there is no harm to SMWIA, he said, because the merger was dependent on the UTU members approving it. "Until such a vote that complies with the LMRDA has taken place, SMWIA has no legally enforceable rights" under the merger agreement.

Lastly, in finding that the public interest weighs in favor of issuing an injunction. Adams quoted from a decision by the U.S. Court of Appeals for the Sixth Circuit:

"The clear policy of the [LMRDA] is to bid farewell to the regime of benevolent well-meaning union autocrats and to give favor to a system of union democracy with its concomitants of free choice and self-determination."

Arthur L. Fox II of Lobel, Novins & Lamont, Washington, D.C., represented the four rank-and-file member plaintiffs, while sole practitioner Joyce Goldstein, Cleveland, represented Thompson and the six intervening UTU vice presidents and legislative director. Joseph Guerrieri Jr. of Guerrieri, Edmond, Clayman & Bartos in Washington, D.C., represented Futhey, and David A. Campbell III of Vorys, Sater, Seymour & Pease, Cleveland, represented UTU.

Text of the decision ordering the preliminary injunction may be accessed at

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