vandermark, terminelle and mateer v. wynder and leeba

8/9/2019 Vandermark, Terminelle and Mateer v. Wynder and LEEBA

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK---------------------------------------------------------------------XMARSHALL VANDERMARK, ROBERTMATEER, THOMAS TERMINELLE, as members

of a Class of approximately 190 Police Officers FIRST AMENDEDSimilarly Situated, COMPLAINT

Plaintiffs, Civil Action No. 15-CV-0483 (VSB)

-against- Demand for Trial by Jury

LAW ENFORCEMENT EMPLOYEESBENEVOLENT ASSOCIATION (LEEBA),KENNETH N. WYNDER, president of LEEBA, andTERRENCE P. DWYER,

Defendants.---------------------------------------------------------------------X

Plaintiffs, Marshall Vandermark (“Vandermark”), Robert Mateer (“Mateer”) and Thomas

Terminelle (“Terminelle”), as members of a union of approximately 190 police officers similarly

situated (collectively, “Plaintiffs”), by and through their attorney, Rudy A. Dermesropian, LLC,

make the following allegations against the Defendants Law Enforcement Employees Benevolent

Association (“LEEBA”), Kenneth N. Wynder, president of LEEBA (“Wynder”), and Terrence P.

Dwyer, legal counsel for LEEBA (“Dwyer”) (collectively, “Defendants”):

INTRODUCTION AND SUMMARY OF ACTION

1. Plaintiffs bring this action for declaratory and injunctive relief and for damages to

vindicate Plaintiffs’ rights as members of LEEBA under federal and state laws.

2. This civil action arises pursuant to 29 U.S.C. § 401, et seq. of the Labor-Management

Reporting and Disclosure Act of 1959, as amended (“LMRDA”), 29 U.S.C. § 141, et seq. of the

Labor Management Relations Act of 1947, as amended (“LMRA”), for breach of fiduciary duty,

wasting union assets, and involves a dispute over LEEBA’s failure to file the necessary reports

Case 1:15-cv-00483-VSB Document 6 Filed 02/24/15 Page 1 of 34


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and annual financial reports with the Secretary of Labor, as well as a dispute over access by

Plaintiffs to financial books, records and accounts of LEEBA, Wynder, president of LEEBA, and

Dwyer, legal counsel for LEEBA, and for breach of fiduciary responsibilities by Wynder and

Dwyer.

3. This action also seeks declaratory and injunctive relief to: (1) rescind the current

Constitution and Bylaws (the “2014 Bylaws”) as they were revised and filed in violation of the

initial Constitution and Bylaws filed in 2010 (the “2010 Bylaws”) and the LMRDA; (2) revoke

the February 13, 2014 Memorandum of Agreement entered into by the Defendants; (3)

permanently remove the self-proclaimed and unelected LEEBA president Wynder, who is not

qualified to serve as president, was not elected into office in compliance with the 2010 Bylaws or

LMRDA, and who appointed officers and members of the Board of Directors of LEEBA in

violation of the 2010 Bylaws; and (4) directing Defendants to disgorge any and all

misappropriated funds.

4. This action further seeks an order granting Plaintiffs damages: (5) for fraud and

corruption; (6) for abuses in the administration and practices of LEEBA toward its members; (7)

for disregarding and violating the contractual rights of individual union members as those rights

are delineated in the 2010 Bylaws and Constitution of LEEBA; and (8) for breach of the 2010

Bylaws and Constitution of LEEBA that was amended retroactively without membership

approval.

5. Plaintiffs are also seeking money damages and reimbursement of funds to be placed

back into union coffers where the president and officers of LEEBA failed to provide financial

disclosure of expenditures and siphoned off union dues for purposes other than for the best



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interests of the membership while conducting union business contrary to requirements stated in

LMRDA.

6. Plaintiffs are Environmental Police Officers (“EPO”), union members and elected

officers of LEEBA in good standing and who, at all relevant times, were and still are represented

by LEEBA in collective bargaining with the City of New York.

7. Vandermark is currently a union delegate who participated in grievance filing and

discipline proceedings for the benefit of rank and file members, and who is also a designated

member of the Board of Directors of LEEBA.

8.

Union membership is composed of approximately one hundred ninety (190) members

who form a single classification of EPOs employed by the City of New York and include

Plaintiffs.

9. On September 14, 1959, Congress enacted Public Law 86-257 to provide for the

reporting and disclosure of certain financial transactions and administrative practices of labor

organizations and employers to prevent abuses in the administration of unions, and to provide

standards with respect to the election of officers of labor organizations.

10. Public Law 86-257 is referred to and cited as the “Labor Management Reporting and

Disclosure Act of 1959” (“LMRDA”), 29 U.S. Code § 401, et seq.

11. Public Law 80-101 is referred to and cited as the “Labor Management Relations Act

of 1947” (“LMRA”) better known as the “Taft-Hartley Act,” 29 U.S.C. § 141, et seq.

12. Plaintiffs allege deceptive and corrupt union practices, and improper influences of

labor relations and activities in derogation of the union members’ rights to organize and conduct

union business.



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13. Pursuant to Section 201(b) of the LMRDA, every labor organization must file an

annual LM-2 Report with the Secretary of Labor.

14. The annual LM-2 Report must disclose the organization's financial condition and

operations for the preceding year, detailing the union's assets, liabilities, and disbursements. 29

U.S.C. § 431(b).

15. Section 201(c) of the LMRDA is intended to ensure that the information that unions

report in their annual LM-2 Labor Organization Annual Report to the United States Department

of Labor is verifiable, and that such information, along with the ability to examine books,

records, and accounts, are open to union members upon a showing of just cause.

16.

Section 201(b) of the LMRDA requires that “[e]very labor organization shall file

annually with the Secretary [of Labor] a financial report signed by its president and treasurer or

corresponding principal officers containing the following information in such detail as may be

necessary to accurately disclose its financial condition and operations for its preceding fiscal

year:

1.

assets and liabilities at the beginning and end of the fiscal year;

2. receipts of any kind and the sources thereof;

3. salary, allowances, and other direct or indirect disbursements (including

reimbursed expenses) to each officer and also to each employee who, during such

fiscal year, received more than $10,000 in the aggregate from such labor

organization and any other labor organization affiliated with it or with which it is

affiliated, or which is affiliated with the same national or international labor

organization;



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19. Plaintiffs are claiming willful and intentional violations by Defendants of LEEBA’s

2010 Bylaws and Constitution, as well as the LMRDA and equivalent State laws.

20. Plaintiffs’ damages are also based on the claim that Defendants orchestrated,

structured, and implemented a corrupt business scheme to profit from the dues collected from

Plaintiffs and other union members similarly situated to Plaintiffs, through dues check-off

extracted from their paychecks and for violations of the trust by the union president and LEEBA

Board of Directors.

JURISDICTION AND VENUE

21.

Jurisdiction is conferred on this Court over Plaintiffs’ federal law claims pursuant to

28 U.S.C. §§ 1331, 1332, 1337(a), 2201(a), the LMRDA, 29 U.S.C. § 401, et seq. and the

LMRA, 29 U.S.C. § 141, et seq.

22. Jurisdiction is conferred on this Court over Plaintiffs’ state law claims pursuant to 28

U.S.C. § 1367 (supplemental jurisdiction).

23. Plaintiffs’ state law claims are so closely related to Plaintiffs’ federal law claims that

they form part of the same case or controversy under Article III of the United States

Constitution.

24. At least one of the Defendants is a citizen of a state different from that of the

Plaintiffs.

25. Plaintiffs’ claims involve matters of national or interstate interest.

26. Upon information and belief, there are approximately one hundred and ninety (190)

EPOs who are members of LEEBA, in the aggregate.



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27. Defendants are subject to personal jurisdiction in New York because, among other

things: (a) Defendant LEEBA is a labor organization certified by the City of New York; and (b)

Defendants conduct their union duties and responsibilities within the state of New York.

28. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§

2201 and 2202.

29. Venue is proper in this judicial district under 29 U.S.C. §§ 185, 412, and 28 U.S.C. §

1391.

PARTIES

30.

Plaintiff Marshall Vandermark is a member and delegate of LEEBA within the

meaning of the LMRDA Sections 3(o) and (q) (29 U.S.C. § 402(o), (q)) and is a domiciliary of

Sidney, NY.

31. Plaintiff Robert Mateer is a member of LEEBA within the meaning of the LMRDA

Sections 3(o) (29 U.S.C. § 402(o)) and is a domiciliary of Margaretville, NY.

32. Plaintiff Thomas Terminelle is a member of LEEBA within the meaning of the

LMRDA Sections 3(o) (29 U.S.C. § 402(o)) and is a domiciliary of Richmond Hill, NY.

33. Upon information and belief, all members of LEEBA reside within the State of New

York.

34. Defendant LEEBA is a labor organization formed and existing for the purpose of

collective bargaining and representing the interests of its members.

35. Defendant LEEBA is a labor organization within the meaning of the LMRDA

Sections 3(i) (29 U.S.C. § 402(i)).

36. LEEBA is a labor organization representing employees in an industry affecting

commerce within the meaning of Section 301 of the LMRA.



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37. LEEBA and all of its members and officers are bound and governed by the

Constitution of LEEBA.

38. The Constitution is a contract within the meaning of Section 301 of the LMRA and

under the laws of the State of New York.

39. Upon information and belief, LEEBA represents approximately one hundred ninety

(190) EPOs and was certified by the City of New York on October 20, 2005 to represent EPOs in

collective bargaining.

40. Upon information and belief, LEEBA maintains a principal place of business at 277

Main Street, Catskills, NY 12414 and regularly conducts business in New York City and the

State of New York.

41. Defendant Kenneth N. Wynder is the president and an agent of LEEBA and resides at

519 Thomas St., Stroudsburg, PA 18360.

42. At all relevant times hereto, defendant Wynder acted under the color of LEEBA

authority. Wynder is sued in his individual and official capacity as president of LEEBA.

43.

Defendant Terrence P. Dwyer is an attorney admitted to practice in the State of New

York, is legal counsel to LEEBA and Wynder, and maintains an office located at 277 Main

Street, Catskills, NY 12414.

44. Upon information and belief, Dwyer owns and controls the real estate located at 277

Main Street, Catskills, NY 12414 and either rents or leases property to LEEBA.

45. On October 20, 2005, LEEBA became the designated collective bargaining agent for

EPOs and has served and filed petitions before the National Labor Relations Board (“NLRB”) to

represent Seagate Police Officers, Sands Casino Security Guards, Yonkers Raceway Security



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Guards, Brink’s Guards, and San Manuel Indian Reservation Security Guards, which are all

private sector employee groups.

46. LEEBA was also granted the right to represent Seagate Police Officers, Sands Casino

Security Guards, and Brink’s Guards.

47. Upon information and belief, LEEBA filed a financial disclosure for at least one of

these groups for the years 2011 and 2012 and filed a financial disclosure for EPOs for the year

2013 only as a result of being directed to do so by the U.S. Labor Department in the year 2014.

48. Upon information and belief, LEEBA failed to file or provide a financial disclosure

for EPO representation for the years 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012 and 2014,

as required by LMRDA, 29 U.S.C. § 431.

FACTS

Background

49. The Water Supply Act of 1906 created the Bureau of Water Supply Police (“BWSP”)

and Aqueduct Police (“AP”), which evolved into the New York City Department of

Environmental Protection Police (“DEP”) through legislative action.

50. The BWSP and AP were originally assigned to precincts in Peekskill, Garrison,

Browns Station, and High Falls in the State of New York.

51. The BWSP and AP Officers were the first police agencies in upstate New York with a

multiple county police jurisdiction.

52. During in or about 1909, BWSP and AP were granted the right to transfer into New

York City Police Department (“NYPD”) and to become NYPD Officers.

53. From 1908 to the present, the New York City Administrative Code (the “Code”) §

13-634 recognizes the right of members of the BWSP and AP to transfer into the NYPD.



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54. The Code § 13-634 states, in pertinent part, “[t]ransfer of members of the police force

of the board of water supply to the police department of the City of New York. The members of

the police force of the board of water supply of the [City of New York] upon the termination of

their service on such force by reason of the completion of the work for which they were

appointed by such board shall be severally eligible for transfer to the position of patrolman in the

office department of the city upon the written request in each case of the board, accompanied by

the consent, also in writing, of the person to be transferred, and the further consent of the police

commissioner.”

55.

In or about 1983, BWSP became the DEP and EPO, and the New York State

Legislature revised the State’s Criminal Procedure Law to include DEP and EPO members.

56. As such, DEP and EPO members were designated as “Police Officers” under the New

York State Criminal Procedure Law, NY CPL § 1.20(34)(o).

57. In or about 1999, DEP or EPO jurisdiction was extended to include the five boroughs

of New York City.

58.

EPOs have been and continue to be commanded to determine probable cause for

arrests on a daily basis and to regularly enforce New York State Penal Law inside the City of

New York and throughout the State of New York.

59. EPOs’ jurisdiction extends throughout the State of New York and affects interstate

commerce where the waterways they guard border on other states and are used to transport goods

in interstate commerce.

60. Since in or about 1999, EPOs have worked closely with NYPD officers performing

law enforcement functions inside New York City where they make arrests and determine

probable cause for arrests.



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61. On October 20, 2005, the Certification Board of the NYC Office of Collective

Bargaining (“OCB”) certified LEEBA as the collective bargaining agent for EPOs.

Defendant Wynder is Ineligible to be President of LEEBA

62. Upon information and belief, Wynder appointed himself as president of LEEBA in

2005 and remains in that position until today without being qualified to serve as president and

without a membership vote as required by the 2010 Bylaws.

63. Section 401(b) of the LMRDA states, “[e]very local labor organization shall elect its

officers not less than once every three years by secret ballot among the members in good

standing.” 29 U.S. Code § 481(b).

64.

Section 101(a)(1) of the LMRDA also states, “[e]very member of a labor organization

shall have equal rights and privileges within such organization to nominate candidates, to vote in

elections or referendums of the labor organization, to attend membership meetings and to

participate in the deliberations and voting upon the business of such meetings, subject to

reasonable rules and regulations in such organization's constitution and bylaws.” 29 U.S.C. §

411(a)(1).

65. The LMRA also provides union members the right to designate or elect union

representatives, including the president, by a majority vote. 29 U.S.C. §§ 157, 159(a).

66. Consistent with the LMRDA and the LMRA, Article VI of the 2010 Bylaws states,

“[a]ll officers of the Association shall be elected by a vote of the membership of the Association.

If an officer shall be unopposed in an election, his name shall be sent out to the entire

membership for a vote of confidence,” and “[t]he terms of office for all positions on the

Executive Board and the Board of Directors shall be three (3) years.”



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67. Here, Wynder was never elected president of LEEBA by members in good standing

and has refused to hold proper elections.

68. Defendants also failed and/or refused to send out to the entire membership Wynder’s

name for a vote of confidence, as further required by the 2010 Bylaws.

69. Wynder simply decided to elect and re-elect himself as president of LEEBA since

2005 to the present with complete disregard to the 2010 Bylaws, which were retroactively

applied, and all governing laws.

70. Furthermore, Article IV of the 2010 Bylaws outlined the following requirements for

any member prior to filling the position of President or First Vice-President: “[a]ny member in

good standing who has been a member of his/her employment group for at least one (1) year

prior to election shall be eligible to hold office. The Executive Offices of President and First

Vice-President shall be filled by any member who has served as an elected delegate for period of

at least two (2) years prior to election.”

71. Wynder was never an “elected delegate” or a member of an “employment group,” as

required by the 2010 Bylaws.

72. Accordingly, Wynder was never eligible and is still ineligible to hold the office of

president of LEEBA and has thus been acting and continues to unlawfully act as president.

73. Because Wynder is ineligible to fill the position of president of LEEBA, Plaintiffs

request declaratory and injunctive relief to immediately remove Wynder from the office of

president and to permanently bar him from holding office with LEEBA.

74. Furthermore, since Wynder was never eligible to be president of LEEBA, all of the

actions he took in his official capacity, including but not limited to agreements signed in his

official capacity, should never been enforced and should therefore be rescinded.



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Defendants’ Unlawful Actions

75. On February 13, 2014, Wynder, acting as president of LEEBA, entered into a

Memorandum of Agreement (“MOA”) with the City of New York, retroactively implementing

and incorporating certain economic provisions for a thirty (30) month period commencing on

October 20, 2005 through April 19, 2008.

76. The economic provisions affected the pay, working conditions, and benefits of the

members of LEEBA.

77. The MOA stated in part, “[t]he terms of the predecessor separate unit agreement shall

be continued except as modified pursuant to this 2005-2008 LEEBA MOA.”

78.

As union members in good standing, Plaintiffs, as well as other union members, were

required to be provided a copy of the MOA or given access to a copy of the MOA, along with a

full explanation of its content, before it could be signed by Wynder.

79. However, Defendants failed and/or refused to provide a copy of the MOA and failed

and/or refused to explain the content of the MOA to the full membership of LEEBA prior to

Wynder’s signing it.

80. Article X of LEEBA’s 2010 Bylaws, which were filed with the U.S. Department of

Labor five (5) years after LEEBA became the designated collective bargaining agent for EPOs,

provided, “[a]ny collective bargaining contracts which are negotiated on behalf of the members

of the Association shall be ratified by the members covered by such contracts. The Association

will not enter into any contract which has not been approved by the members of the Association

at a contract vote.”

81. At no time prior to February 2014, when Wynder executed the MOA, did Defendants

allow the members to vote on such contract.



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82. Wynder signed the MOA without pursuing membership ratification, in direct

violation of rights portrayed in the 2010 Bylaws.

83. Because Wynder is ineligible to hold the office of president, as defined in the 2010

Bylaws, his signature on any document(s) signed in this official capacity should be held null and

void.

84. Furthermore, LMRDA provides for financial disclosure of LEEBA income and

expenses to be published by LEEBA and made available to the full membership at least once

each year.

85.

Article XII of the 2010 Bylaws in turn provides that “[n]o later than the November

meeting of the Executive Board, the Financial Secretary will present a budget for the approval of

the full Board of Directors for the fiscal year which will be from the following January 1st

through December 31st. The budget shall be approved by the Finance Committee before

presentation to the Board of Directors. The budget shall contain at least the following terms (a)

projected income from all sources, (b) proposed costs in all areas and programs, (c) a listing of

all assets of the Association and (d) a listing of all liabilities of the Association.”

86. Upon information and belief, Defendants never presented a budget for the approval of

the full Board of Directors.

87. Since 2005 to the present, Wynder failed and/or refused to disclose financial reports

and information, in accordance with the requirements under the LMRDA and the Bylaws.

88. Furthermore, Article VI of the 2010 Bylaws states that the Financial Secretary of

LEEBA shall “keep accurate record of receipts and disbursements and shall, once every two (2)

months, submit to the membership an operating statement of the financial transactions of the

Association for the previous months.”



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89. Defendants failed and/or refused to maintain an accurate record of receipts and

disbursements and did not submit to the membership an operating statement of the financial

transactions of the Association.

90. As a direct consequence of the failure to provide financial disclosure to the

membership, damages have occurred in the form of expenditures being made from union dues

without justification and in direct violation of the best interests of the membership.

91. The 2010 Bylaws provide, “Full Member dues shall be paid bi-weekly at the flat rate

of $30.00 for a monthly rate of $60.00 and a yearly rate of $720.00. Full members also pay an

initiation fee of $25.00. Associate Member dues shall be paid monthly at the rate of $10.00 for a

yearly rate of $120.00. Associate Members shall also pay an initiation fee of $25.00.”

92. Full Member dues were increased to $40.00 every two weeks and Associate Member

dues were increased to a monthly rate of $50.00 for a yearly rate of $600.00, without proper

amendment to the 2010 Bylaws.

93. The use of union dues, extracted from EPO paychecks in the form of dues check-off,

for expenditures not in the best interests of all members collectively and individually have been

made without full and complete disclosure to the members, in violation of Defendants’ fiduciary

duties.

94. In addition, Article VI of the 2010 Bylaws provides in part that LEEBA’s president

shall “countersign all checks drawn against the general funds of the Association.”

95. Upon information and belief, this provision of the Bylaws was intended to safeguard

union funds by requiring a countersignature of all checks drawn against the union’s general

funds.



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96. However, upon further information and belief, Defendants blatantly disregarded and

violated the requirement to countersign checks by signing and cashing checks against general

funds of the Association at will, without the safeguard of countersignatures.

97. Upon information and belief, the LEEBA EPO budget has never been prepared or

presented to the full Board of Directors, and as a consequence, the Board never approved money

expended by Wynder.

98. Upon information and belief, LEEBA’s General Fund has been constantly depleted

by Defendants without an accounting or financial disclosure, in violation of the 2010 Bylaws and

LMRDA, causing severe financial damages to the members.

99.

LEEBA leases a commercial space located at 277 Main Street, Catskills, NY 12414

(the “Catskills Office”).

100. LEEBA makes rental payment of over $12,000 dollars per year to Terramark

Properties, LLC.

101. Upon information and belief, Terramark Properties, LLC, which is also located at

the Catskills Office, is owned and operated by defendant Dwyer.

102. LEEBA also makes alleged expenditure payments for the Catskills Office of over

$55,000 per year.

103. Upon information and belief, Defendants do not personally occupy the Catskills

Office or conduct union business from there.

104. Plaintiff Mateer personally visited the Catskills office on different occasions and

observed the office unoccupied on each visit.



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which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned

for not more than five years, or both.” 29 U.S.C. § 501(c).

109. Defendants’ misuse of union funds, failure to properly budget the accounts of

LEEBA, combined with their failure to provide financial disclosures to the members, amount to

a breach of fiduciary duty.

110. Prior to August 20, 2014, Plaintiffs had never been given or even seen a copy of

the LEEBA Bylaws, although numerous requests were made to Wynder asking him to produce

same.

111.

Without notice to the members, Defendants filed an amended Constitution and

Bylaws with the U.S. Department of Labor and falsely stated on the 2014 Bylaws, “Originally

adopted 10/05/2005 amended January 21, 2011,” without providing prior notice to the

membership and without membership approval and vote as required by the 2005 Bylaws.

112. The submission of the amended 2014 Bylaws was purported to change, among

other things: (a) the requirements for amending the Bylaws, (b) the requirements for

membership ratification of agreements, and (c) the requirements to hold office in the union.

113. Upon information and belief, the 2014 Bylaws were intentionally back-dated with

a false claim that they were adopted in the year 2005 to create the illusion that LEEBA

management abided by the newly created and filed Bylaws.

114. Upon information and belief, Defendants backdated the 2014 Bylaws because

Wynder was placed on notice of certain violations of the 2010 Bylaws.

115. Defendants violated Article XVI of the 2010 Bylaws by failing and/or refusing to

notify the members and without holding a membership vote, causing the 2014 Bylaws to be

unenforceable and non-binding.



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Notice to Take Action

116. On or about January 2, 2015, Vandermark notified Defendants, in writing, of

“improper practices of L.E.E.B.A.,” including, in part, the unlawful and improper modification

and amendment of the 2010 Bylaws “without membership approval.”

117. Vandermark reminded Defendants that the 2010 Bylaws “required a membership

vote to amend them,” while complaining that “the new Bylaws claim to be amended on January

21, 2011 and filed in 2014 without a required membership approval.”

118. Vandermark, who is a LEEBA member and delegate, further stated that he is “not

aware of any membership vote taken to amend the Bylaws of LEEBA and [he] therefore require

the Bylaws filed in 2005 to remain in effect until the membership approves a change.”

119. Vandermark further noted that “[t]he 2005 Bylaws provide[d] [him] with the right

to see, review and be informed with regard to the signing of any MOA that affects the terms and

conditions of [his] employment. [He noted that] L.E.E.B.A. deleted membership ratification of

agreements in the amended Bylaws filed with the U.S. Labor Department and eliminated

membership approval of changes to the Bylaws which are drastic changes.”

120. The January 2, 2015 letter also noted that LEEBA president, Wynder, was

“never elected by a membership vote.”

121. “As a L.E.E.B.A. member, [Vandermark] was never provided notice of MOA

ratification or allowed to vote for a change to the Bylaws and Constitution. This deprivation is a

violation of the L.E.E.B.A Bylaws filed in 2005 with the U.S. Department of Labor.”

122. Vandermark’s letter pointed out several other violations by the Defendants,

including, but not limited to, Defendants’ failure and/or refusal to provide him with the Bylaws,

improper use of membership dues, actions taken by LEEBA and its president without notifying



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union members in violation of the Bylaws, failure and/or refusal of LEEBA to keep accurate

records with receipts and disbursements, and LEEBA’s failure and/or refusal to hold presidential

elections as required by the Bylaws.

123. Finally, Vandermark requested “an immediate response to this letter and

representation that the membership will be given the opportunity to approve all amendments to

the Bylaws and Constitution.”

124. Vandermark further demanded that “L.E.E.B.A. pursue the judgment interest

owed on retro-active earnings and that it conduct a proper election for president in accords with

2005 Bylaws and Constitution filed with the U.S. Labor Department where those Bylaws are a

contract between the members and the union by law until the membership approves change.”

125. Mateer and Terminelle also sent identical letters to Wynder.

126. Defendants failed and/or refused to respond or take any corrective action after

receiving any of the three letters sent by the Plaintiffs.

Terrence P. Dwyer

127.

Upon information and belief, Dwyer was aware that Wynder was ineligible to

hold office and in fact unlawfully held office with LEEBA.

128. Upon information and belief, Dwyer aided and abetted Wynder in unlawfully

holding the position of and acting as president of LEEBA.

129. Upon information and belief, Dwyer has conducted business in New York State

utilizing an entity known as Terramark Properties, LLC which owns real property located at 277

Main Street, Catskills, NY 12414

130. In the financial disclosure filed by LEEBA for the year 2013, LEEBA paid rent

for the Catskills Office which is owned by Terramark Properties, LLC.



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131. While Dwyer collected rent from LEEBA for the Catskills Office in the amount

of $12,000.00 per year, LEEBA also incurred association overhead in the amount of $55,109.00

involved with the alleged use of this facility. These amounts are excessive and unrealistic

expenses for comparable space and services in the same geographic area.

132. At all relevant times herein, Dwyer was retained as an attorney for LEEBA.

133. Upon information and belief, Dwyer influenced the outlay of money from

LEEBA funds and caused an overpayment for the use of the facility to the detriment of the union

its members.

AS AND FOR A FIRST CAUSE OF ACTIONViolation of Members’ Equal Rights and Freedom of Speech and Assembly

(LMRDA: 29 U.S.C. § 411)

(As Against All Defendants)

134. Plaintiffs repeat, re-allege, and incorporate each and every allegation contained in

the above paragraphs of this Complaint as though fully set forth in this paragraph of the

Complaint.

135. The acts of the Defendants set forth above resulted in the interference with the

membership rights of the Plaintiffs and all similarly situated EPOs, and therefore, violate Section

101(a) of the LMRDA, 29 U.S.C. § 411(a).

136.

The acts of the Defendants prevent the Plaintiffs from exercising their statutory

rights to nominate candidates, vote in elections, attend membership meetings, and participate in

deliberations.

137. By disclaiming the Plaintiffs, the Defendants interfered with these rights and have,

therefore, violated Section 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1).

138. Plaintiffs are still members of LEEBA and they therefore have the ability to

participate in the activities listed in Section 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1).



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139. The acts of the Defendants deprive the Plaintiffs of their right of free speech and

assembly within the union and have, therefore, violated Section 101(a)(2) of the LMRDA, 29

U.S.C. § 411(a)(2).

140. As a direct and proximate consequence of Defendants’ unlawful actions, Plaintiffs

have suffered an infringement of important federal statutory rights and have incurred attorney’s

fees and costs to vindicate their rights under the LMRDA.

AS AND FOR A SECOND CAUSE OF ACTION

Violation of Members’ Equal Rights and Freedom of Speech and Assembly

(LMRA: 29 U.S.C. § 185)


141. Plaintiffs repeat, re-allege, and incorporate each and every allegation contained in the

above paragraphs of this Complaint as though fully set forth in this paragraph of the Complaint.

142. The acts of the Defendants set forth above resulted in the interference with the

membership rights of the Plaintiffs and all similarly situated EPOs, including but not limited to

their right to nominate candidates, vote in elections, attend membership meetings, participate in

deliberations, right to free speech and assembly, and therefore, violate the LMRA, 29 U.S.C. §§

157, 159(a).

143. By disclaiming the Plaintiffs, the Defendants interfered with these rights and have,

therefore, violated LMRA, 29 U.S.C. §§ 157, 159(A) and (185(b).


have suffered an infringement of important federal statutory rights and have incurred attorney’s

fees and costs to vindicate their rights under the LMRA.



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AS AND FOR A THIRD CAUSE OF ACTION

Declaratory Judgment: Injunctive Relief

(LMRDA: 28 U.S.C. § 2201 et seq.)


145.

Plaintiffs repeat, re-allege, and incorporate each and every allegation contained in the


146. Wynder appointed himself as president of LEEBA in 2005 and has remained in that

position until the present time without having the proper qualifications and without a

membership vote as required by the 2010 Bylaws.

147.

Thus, the conditions precedent qualifying and allowing Wynder to fill in the position

of president were never and still are not satisfied, and therefore none of the agreements he

executed, including but limited to the 2014 Bylaws and MOA, are enforceable agreements.

148. The Plaintiffs have no adequate remedy at law.

149. Plaintiffs are thus entitled to a declaratory judgment that the amendments to the 2010

Bylaws, the MOA, the modifications to the pay, working conditions and benefits of the members

of LEEBA must be voided and/or set aside, and an injunction restoring the status quo to the 2010

Bylaws and awarding backpay and benefits.

150. As a direct and proximate consequence of Defendants' unlawful actions, Plaintiffs

have suffered an infringement of important federal statutory rights and have incurred attorney's




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AS AND FOR A FOURTH CAUSE OF ACTION

Declaratory Judgment: Declaratory Judgment

(LMRDA: 28 U.S.C. § 2201, et seq.)


151.



152. Wynder appointed himself as president of LEEBA in 2005 and has remained in that

position until the present time without having the proper qualifications and without a

membership vote, as required by the 2010 Bylaws.

153.

Thus, the conditions precedent qualifying and allowing Wynder to fill in the position

of president were never and still are not satisfied.

154. The Plaintiffs have no adequate remedy at law.

155. Plaintiffs are thus entitled to a declaratory judgment that defendant Wynder be

immediately removed as president of LEEBA, be permanently barred from running for office at

LEEBA, and declaring that elections pursuant to the 2010 Bylaws take place to replace Wynder

with a qualified union member.




AS AND FOR A FIFTH CAUSE OF ACTION


(LMRDA: 29 U.S.C. § 431)






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158. The LMRDA provides for financial disclosure of LEEBA income and expenses to be

published by LEEBA and made available to the membership at least once each year.

159. Article XII of LEEBA’s 2010 Bylaws provides, “[n]o later than the November


the full Board of Directors for the fiscal year which will be from the following January 1st





160. Defendants never presented a budget for approval or approved a budget, as required

by the 2010 Bylaws.

161. Furthermore, Defendants failed and/or refused to file or provide financial disclosure

for the years, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012 and 2014, as required by

LMRDA, 29 U.S.C. § 431.

162. Article VI of the 2010 Bylaws states, in pertinent part, that the Financial Secretary

must “keep an accurate record of receipts and disbursements and shall, once every two (2)



163.

Defendants never provided an accurate record of receipts and disbursements or an

operating statement to the membership while failing to provide financial statements for the

following years: 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012 or 2014.

164. As such, Plaintiffs request a Court order requiring the enforcement of Art. XII.



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165. As a direct consequence of the failure to provide financial disclosure to the



166. Plaintiffs are thus entitled to a declaratory judgment that Defendants file and provide

financial disclosures for the years 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012 and 2014, as

required by LMRDA, 29 U.S.C. § 431, and produce and keep accurate record of receipts and

disbursements.




AS AND FOR A SIXTH CAUSE OF ACTION


( N.Y. Lab. Law § 726 )




169. N.Y. Lab. Law § 726 states, “[e]very labor organization and employer organization

shall make available to each of its members a copy of its annual financial report, or such portions

thereof as the industrial commissioner shall find relevant and appropriate, in such manner as the

industrial commissioner shall prescribe. The president or chief executive officer and the treasurer

or chief financial officer of the organization personally shall be responsible for the preparation of

such report, and both shall verify such report. The officers responsible for the preparation of

reports shall be responsible for providing copies of reports under this section.”



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170. N.Y. Lab. Law § 727 provides, in pertinent part, “[e]very labor organization,

employer organization, employer and labor relations consultant shall maintain detailed and

accurate books and records of account in conformity with generally accepted accounting

principles and in accordance with standards prescribed by the industrial commissioner.”

171. N.Y. Lab. Law § 728 provides, in pertinent part, “(1) [a]ny officer, agent, or

employee of any labor organization or employer organization, or any employer or labor relations

consultant who willfully fails or refuses to comply with any provision of sections seven hundred

twenty-six or seven hundred twenty-seven of this article shall be guilty of a misdemeanor,

punishable by imprisonment for not more than one year, or by a fine of not more than one

thousand dollars, or by both,” and “(2) [a]ny officer, agent, or employee of a labor organization

or employer organization, or any employer or labor relations consultant who knowingly causes

any person to fail or refuse to comply with any provision of sections seven hundred twenty-six or

seven hundred twenty-seven of this article shall be guilty of a misdemeanor, punishable by

imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or

by both.”

172. Defendants failed and/or refused to file or provide financial reports for the years,

2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012 and 2014, as required by New York State Labor

Law.

173. Defendants failed and/or refused to maintain detailed and accurate books and records

of account in conformity with generally accepted accounting principles, as required by New

York State Labor Law.

174. Article XII of LEEBA’s 2010 Bylaws provides, “[n]o later than the November




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the full Board of Directors for the fiscal year which will be from the following January 1 st





175. Defendants never presented a budget for approval or approved a budget, as required

by the 2010 Bylaws.

176. Article VI of the 2010 Bylaws states, in pertinent part, that the Financial Secretary

must “keep an accurate record of receipts and disbursements and shall, once every two (2)



177. Defendants never provided an accurate record of receipts and disbursements or an

operating statement to the membership while failing to provide financial statements for the

following years: 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012 or 2014.

178. As such, Plaintiffs request a Court order requiring the enforcement of Art. XII.

179.

As a direct consequence of the failure to provide financial disclosure to the



180.

Plaintiffs are thus entitled to a declaratory judgment that Defendants file and provide

financial disclosures for the years 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012 and 2014, as

required by New York State Labor Law, and produce and keep accurate books and records.



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have suffered an infringement of important State statutory rights and have incurred attorney's

fees and costs to vindicate their rights under the N.Y. Lab. Law.

AS AND FOR A SEVENTH CAUSE OF ACTION

Violation of Fiduciary Duties

(LMRDA: 29 U.S.C. § 501)




183.

Defendants occupy positions of trust in relation to LEEBA, and to its members as a

group.

184. Defendants’ failure to properly budget the accounts of LEEBA combined with their

failure to provide financial disclosures to the membership, and their misappropriation of funds,

amount to a breach of fiduciary duty to its members.

185.

By virtue of the foregoing, Defendants have violated the provisions of the LMRDA

and the 2010 Bylaws by breaching their fiduciary duties and by engaging in prohibited

transactions.

186. Plaintiffs herein are entitled to an order that the Defendants properly budget the

accounts of LEEBA, to provide the members with LEEBA’s financial disclosures from 2005 to

the present and to disgorge any and all misappropriated funds.

187. The Plaintiffs are also entitled to reasonable attorney’s fees.



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AS AND FOR AN EIGHTH CAUSE OF ACTION


( N.Y. Lab. Law § 720, et seq.)


188.



189. Defendants occupy positions of trust in relation to LEEBA and to its members as a

group.

190. New York State Labor Law § 722 states, “[n]o officer or agent of a labor organization

shall, directly or indirectly (1) Have or acquire any pecuniary or personal interest which would

conflict with his fiduciary obligation to such organization; (2) Engage in any business or

financial transaction which conflicts with his fiduciary obligation; or (3) Act in any way which

subordinates the interests of such labor organization to his own pecuniary or personal interests.”

N.Y. Lab. Law § 722.

191.

Furthermore, New York State Labor Law § 725(1) permits any member of a labor

organization shall have the right to bring an action for legal or equitable relief against an officer

or agent for violating any of his/her fiduciary obligations, action or proceeding if “(a) after

request by any member that such action or proceeding be brought, such organization shall fail to

do so, or (b) such request would be futile, or (c) such organization has failed to prosecute

diligently any such action or proceeding which it has brought.” N.Y. Lab. Law § 725(1).

192. By virtue of the foregoing, Defendants have violated the provisions of the N.Y. Lab.

Law § 722 and the 2010 Bylaws by breaching their fiduciary duties and by engaging in

prohibited transactions and misappropriation of funds.



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the present and to disgorge misappropriated funds.


AS AND FOR A NINTH CAUSE OF ACTION


(LMRA: 29 U.S.C. § 185)




196. Defendants occupy positions of trust in relation to LEEBA and to its members as a

group.

197. By virtue of the foregoing, Defendants have breached their fiduciary duties by

engaging in prohibited transactions and misappropriation of funds in violation of the 2010

Bylaws and the LMRA.



the present and to disgorge misappropriated funds.




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AS AND FOR A TENTH CAUSE OF ACTION

Attorney’s Fees




201. Section 102 of the LMRDA states, “[a]ny person whose rights secured by the

provisions of this title have been infringed by any violation of this title may bring a civil action

in a district court of the United States for such relief (including injunctions) as may be

appropriate. Any such action against a labor organization shall be brought in the district court of

the United States for the district where the alleged violation occurred, or where the principal

office of such labor organization is located.”

202. Section 201(c) of the LMRDA states, “[e]very labor organization required to submit a

report under this title shall make available the information required to be contained in such report

to all of its members, and every such labor organization and its officers shall be under a duty

enforceable at the suit of any member of such organization in any State court of competent

jurisdiction or in the district court of the United States for the district in which such labor

organization maintains its principal office, to permit such member for just cause to examine any

books, records, and accounts necessary to verify such report. The court in such action may, in its

discretion, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable

attorney's fee to be paid by the defendant, and costs of the action.”






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WHEREFORE, Plaintiffs pray this Court grant them the following relief:

A. For an Order removing defendant Kenneth N. Wynder as president of LEEBA;

B. For a declaratory judgment declaring that defendant Kenneth N. Wynder is ineligible

to run for the office of president or any other LEEBA office;

C. For a declaratory judgment declaring that the 2014 Bylaws, the MOA, and any other

agreements entered into by defendant Kenneth N. Wynder are null and void;

D. For an accounting by Defendants of monies expended by LEEBA in the employment

of defendant Terrence P. Dwyer;

E.

For an Order directing Defendants to produce all of LEEBA’s financial disclosures

and books and records from 2005 to the present;

F. For an Order granting Plaintiffs access to all of Defendants’ books and records since

2005 to the present.

G. For all monetary damages recoverable as a matter of law against Defendants pursuant

to provisions in 29 U.S.C. § 401, et seq.;

H.

For all monetary damages recoverable as a matter of law against Defendants pursuant

to provisions in the N.Y. Lab. Law § 720, et seq.;

I. For all monetary damages recoverable as a matter of law against Defendants pursuant

to provisions in 29 U.S.C. § 141, et seq.

J. For injunctive and declaratory relief pursuant to 29 U.S.C. § 401, et seq.;

K. For recovery of all monetary damages as a matter of law against Defendants for

breach of fiduciary duties;

L. For equitable relief, including, but not limited to, the requested corrective action,

against all Defendants;



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M. For such compensatory, prospective, exemplary and punitive damages as this Court

deems appropriate, just and proper;

N. Costs and reasonable attorney’s fees incurred herein for vindicating the rights of all

members of LEEBA in this matter; and

O. For such other and further relief as this Court may deem just, fair and equitable.

Dated: New York, New YorkFebruary 24, 2015

Yours, etc.

RUDY A. DERMESROPIAN, LLC.

By: ___s/ Rudy A. Dermesropian__________Rudy A. Dermesropian (RD 1882) Attorneys for Plaintiffs

45 Broadway, Suite 1420 New York, New York 10006646-586-9030


vandermark, terminelle and mateer v. wynder and leeba

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