NYSUT's Opinion on the Propriety of the May 2 Vote

September 16, 2003

Tom Morrissey, Pres.
LAB&ECPL
514 Ashland Ave.
Buffalo, NY 14222


Re: Request for legal opinion

Propriety of affiliation vote

Dear Tom:

You requested that I secure a legal opinion from NYSUT’s legal department about whether the affiliation vote, which was held at the May 2003 general membership meeting, was legally valid. I sent all of the information to our in-house counsel. They reviewed the facts, correspondence given to the membership, petition and cover letter, your constitution and bylaws, and your certificate of incorporation (filed with NYS on 6/30/71). Based upon all this evidence, I am advised that the affiliation was proper in all respects. The legal opinion is based upon a number of items:

Your certificate of incorporation does not prohibit affiliation. The Board of Directors has the power to determine whether absentee ballots will be allowed for voting.

The constitution and bylaws do not prohibit affiliation, do not expressly require that its terms be amended before the Association can affiliate, do not expressly require that a motion be made or that a vote be taken before the Association can affiliate.

Arguably, given #4, by having a vote, the Board simply obtained guidance from the general membership, which it then used to make the ultimate decision to affiliate; it need not have put the issue to a vote. The Board’s ultimate decision to affiliate was a valid exercise of its power to manage the corporation.

Based upon the above summary, and underlying facts, the Board of Directors acted in good faith, with due diligence, care and skill. The Association did not act in a manner that was arbitrary, discriminatory or in bad faith with respect to the dissidents, nor did the Association breach its duty of fair representation.

I hope this puts this matter to rest. Should you require anything further, please feel free to give me a call.

Very truly yours,

Tara Singer-Blumberg
Labor Relations Specialist