

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

Nos. 95-1224
     95-1337

                 AFL-CIO LAUNDRY AND DRY CLEANING
                       INTERNATIONAL UNION,

                      Plaintiff - Appellant,

                                v.

                     AFL-CIO LAUNDRY, ET AL.,

                     Defendants - Appellees.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Joseph L. Tauro, U.S. District Judge]                                                               

                                           

                              Before

                     Torruella, Chief Judge,                                                     
                      Lynch, Circuit Judge,                                                    
                  and Stearns,* District Judge.                                                        

                                           

     Nathan S. Paven, with  whom Paven &amp; Norton, Warren  H. Pyle,                                                                          
Lois  H.  Johnson and  Angoff, Goldman,  Manning, Pyle,  Wanger &amp;                                                                           
Hiatt, P.C. were on brief for appellant.                     
     Shelley B. Kroll, with whom Anne R. Sills and Segal, Roitman                                                                           
&amp; Coleman were on brief for appellees.                   

                                           

                         December 5, 1995
                                           

                                                  

*  Of the District of Massachusetts, sitting by designation.

          TORRUELLA, Chief  Judge.   The AFL-CIO Laundry  and Dry                    TORRUELLA, Chief  Judge.                                           

Cleaning  International Union  ("the International")  appeals the

district court's decision to deny its motion for an injunction to

compel the AFL-CIO Laundry  and Dry Cleaning International Union,

Local 66  ("Local 66") and several  of its officers to  turn over

assets,  books,  and  records  to  a  trustee  appointed  by  the

International.  We affirm the decision of the district court.

                            BACKGROUND                                      BACKGROUND

          The  following facts  are  not in  dispute.   Local  66

represents laundry workers in the Somerville, Massachusetts area.

On  August  25,  1993,  Local   66  wrote  to  the  International

requesting its approval to disaffiliate from the International in

order  to reaffiliate  with  the Amalgamated  Clothing &amp;  Textile

Workers International  Union ("ACTWU").  The International denied

Local 66's request.   Thereafter, Local 66's membership voted  to

disaffiliate,  and Local  66 informed  the International  of this

decision on November 18, 1994.

          In response, the International declared that, under its

constitution,  an emergency existed with regard to Local 66.  The

International suspended all of  Local 66's officers and appointed

a trustee over Local 66.  Local 66 did not recognize the trustee,

and also refused to  turn over its books, records,  bank accounts

and premises.

          On  December  12,  1994,  the   International  filed  a

complaint  requesting  injunctive  relief  to  force  Local  66's

officers to  recognize the  trustee.  The  district court  denied

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this request in its Order of January 26, 1995.  When the district

court made  its decision,  the merits  of the  underlying dispute

were  before the National Labor Relations  Board, which has since

decided that Local 66  (now "Local 66L," but referred  to in this

opinion as "Local  66") will  represent the workers  as an  ACTWU

affiliate.     See  Aramark  Uniform  Services,  Case  1-CA-32465                                                        

(N.L.R.B.  May 10,  1995) (memorandum  also  addressing companion

cases).   Here,  the International  appeals the  district court's

decision denying injunctive relief.

                            DISCUSSION                                      DISCUSSION

            We review a  district court's denial of  a motion for

preliminary injunction  only for "abuse of  discretion" or "clear

error"  of fact  or  related law.    Coastal Fuels  v.  Caribbean                                                                           

Petroleum,  990 F.2d 25,  26 (1st Cir.  1993); Planned Parenthood                                                                           

League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981).                                     

          To  be  entitled  to   a  preliminary  injunction,  the

International  had to show the  district court (1)  that it would

suffer irreparable harm  if the injunction were  not granted; (2)

that such  injury outweighed  any harm which  granting injunctive

relief  would  inflict on  the  defendant;  (3) a  likelihood  of

success on the merits; and (4) that the public interest would not

be adversely affected by granting the injunction.  See, e.g., Pye                                                                           

on  Behalf of NLRB  v. Sullivan Bros.,  38 F.3d 58,  63 (1st Cir.                                               

1994);  Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st                                                       

Cir. 1991).

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          The district court denied the International's motion on

the  grounds  that  the   International  failed  to  show  either

likelihood that it would succeed  on the merits or that it  would

suffer  irreparable harm  if the  injunction did  not issue.   In

particular,  the   district  court  found  that   contrary  to  a

likelihood of  success, the International  was likely to  fail on

the  merits  since  the  trusteeship aimed  at  the  illegitimate

purpose of  preventing Local 66's disaffiliation.   Additionally,

the district court found that the true harm to the International,

the loss of  the workers in Local 66, had already occurred, while

the harm  that the  International claimed, inability  to exercise

its rights under its constitution, was merely "symbolic."

          On appeal,  the International  responds that it  is not

trying to  use  the trusteeship  to prevent  disaffiliation.   It

explains that  since disaffiliation  has already taken  place, it

simply  wishes to recover the property, books, and records of the

entity it terms "Local  66, Laundry Workers," which it  claims is

still  extant.  As a result of this asserted continued existence,

the International  further argues  that its trusteeship  is valid

and  it  will likely  succeed on  the  merits.   Furthermore, the

International contends that it is favored by the balance of harms

test, since this  test requires that  the International be  given

the sought-after assets  in order  to compete with  Local 66  for

worker support.

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          The validity  of a  trusteeship, as the  district court

recognized, is  governed by Section  462 of the  Labor Management

Reporting and Disclosure Act, which states that:

            Trusteeships  shall  be  established  and
            administered by a labor organization over
            a  subordinate  body  only in  accordance
            with the constitution  and bylaws of  the
            organization     which    has     assumed
            trusteeship over the subordinate body and
            for the purpose of  correcting corruption
            or  financial  malpractice, assuring  the
            performance   of  collective   bargaining
            agreements   or   other   duties   of   a
            bargaining    representative,   restoring
            democratic   procedures,   or   otherwise
            carrying  out  the legitimate  objects of
            such labor organization.

29  U.S.C.    462  (1988).    Section  462  sets  forth  specific

legitimate  reasons for  imposing a  trusteeship that  benefits a

union's   membership,  including:     correcting   corruption  or

financial  malpractice;  assuring the  performance  of collective

bargaining agreements  or other bargaining  duties; and restoring

democratic  procedures.    Id.     However,  courts  have  widely                                        

recognized that preventing disaffiliation is not a proper purpose

under   462 for the  imposition of a trustee.  Local  Union 13410                                                                           

v.  United  Mine Workers,  475 F.2d  906,  912 (D.C.  Cir. 1973);                                  

United  Bhd. of Carpenters v. Brown, 343 F.2d 872, 873 (10th Cir.                                             

1965); Boilermakers v. Local Lodge 1244, 1988 WL 114590, *5 (N.D.                                                 

Ind.); International  Bhd. of  Boilermakers v. Local  Lodge D405,                                                                          

699  F. Supp.  749, 755  (D. Ariz.  1988); International  Bhd. of                                                                           

Boilermakers v. Local Lodge D74, 673 F. Supp. 199, 203 (W.D. Tex.                                         

1987).

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          The International correctly contends that   462 confers

on its trustee  a presumption  of validity, unless  Local 66  can

show by  clear and convincing  evidence that the  trusteeship was

not established  in good faith for  a purpose under the  Act.  29

U.S.C.    464(c) (1988).1  However, the district court found that

Local 66 had  met this  burden, since the  International made  no

allegations and  presented no  evidence of financial  misdeeds or

other  factors  that would  support  a  trusteeship.   While  the

International argues  that the trusteeship was  imposed after the                                                                       

disaffiliation, and  thus could not prevent it,  we conclude that

by denying Local 66 current access to  its records and funds, the

International  could  forestall  Local  66's  attempts  to   gain

recognition from employers as  a bargaining agent affiliated with

ACTWU.  The strongest evidence was that  the International sought

                                                  

1  Which states that:

              In  any  proceeding  pursuant  to  this
            section  a  trusteeship established  by a
            labor organization in conformity with the
            procedural     requirements    of     its
            constitution and bylaws and authorized or
            ratified  after  a  fair  hearing  either
            before the executive board or before such
            other   body  as   may  be   provided  in
            accordance   with  its   constitution  or
            bylaws  shall  be  presumed  valid  for a
            period of eighteen  months from the  date
            of  its establishment  and  shall not  be
            subject  to  attack  during  such  period
            except  upon  clear and  convincing proof
            that the trusteeship was  not established
            or maintained in good faith for a purpose
            allowable  under  section  462   of  this
            title.

Id.             

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the  trusteeship to  influence  the matter  of the  disaffilation

vote.

          On  appeal,  the International  also  contends  that it

requires  the books  and  records in  order  for its  "Local  66,

Laundry Workers" to continue representing workers, a valid reason

for  a trusteeship under   462.   However, the district court has

already found  that the International and  its appointed trustees

were not representing workers  after the disaffiliation, but were

instead sitting atop  an "empty  shell."  The  district court  so

determined based on evidence that 98 percent of those voting from

Local 66 had  voted to disaffiliate and  that in less than  three

months all  but two of  fifteen employers  had already  expressed

willingness  to recognize  Local 66  as an  ACTWU affiliate.   We

uphold  the  district court's  factual  finding  that "Local  66,

Laundry  Workers" is an empty shell as not clearly erroneous, and

thus reject the International's argument that it needs the assets

for ongoing representation.

          We also  uphold the  district court's finding  that the

balance  of   harms  test  favors  denying  the   motion  for  an

injunction.    On appeal,  the  International  contends that  the

district  court failed  to  recognize the  irreparable harm  that

resulted  from being deprived of the assets in question while the

International  had bargaining  rights to  protect.   However, the

district  court  recognized  that  Local 66,  ACTWU  was  already

representing  the bulk of the  employees in question,  and so the

balance of  harms  favored denying  the  injunction.   While  the

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International may indeed have been inhibited in competing for the

workers' representation,  that harm does not  outweigh the danger

of obstructing  their actual  current representation.   We uphold

the district court's  finding.2  For  the foregoing reasons,  the

judgment  of the  district court  is affirmed.   Double  costs to                                               affirmed.                                                       

appellee.

                                                  

2  Appellant has asked for a status conference in order to settle
the question  of  its entitlement  to  the requested  records,  a
request which the district court may consider at its discretion.

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