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BERG v. WATSON

July 9, 1976

Norman H. Berg, Plaintiff
v.
Vincent Watson, et al., Defendants


Cannella, D.J.


The opinion of the court was delivered by: CANNELLA

CANNELLA, D. J.:

This action under Section 101(a)(5) of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA" or "Landrum-Griffin Act"), 29 U.S.C. § 411(a)(5), for injunctive and other appropriate relief is presently before the Court on the plaintiff's motion for summary judgment. In that plaintiff was not served with specific written notice of the charges against him he is granted partial summary judgment, solely on the issue of wrongful disciplinary action. *fn1"

 Facts

 Plaintiff is a member of defendant International Union of Elevator Constructors, Local No. 1 (hereinafter "Union ", "Local No. 1" or simply "Local"), a labor organization representing elevator constructors and mechanics employed by various elevator contractors in the New York metropolitan area and with its principal place of business in New York City. The controversy which gives rise to this suit involves the circumstances surrounding disciplinary action taken against Berg by defendant Union, and the material facts are largely undisputed.

 Some time prior to June 15, 1973, during the construction and installation of elevators at 737 Third Avenue (hereinafter "job-site"), certain switches were wired and cable installed in a starter station by a member of Local No. 3 of the International Brotherhood of Electrical Workers, AFL-CIO, when in fact, this work was within the jurisdiction of defendant Local. This error was subsequently discovered and on June 15, 1973, in an effort to resolve the situation, Thomas McGoldrick, Business Agent of the Local, met with plaintiff, who was then employed by Haughton Elevator Company ("Haughton") as the mechanic in charge at the job-site. Raymond Bender, the Shop Steward of Local No. 1, who was employed by Haughton as a mechanic, William Hughes, Haughton's Construction Superintendent, and Jack Anderson were also present. It seems at that meeting McGoldrick instructed plaintiff to have the starter station rewired by a member of Local No. 1. Berg, while not contesting this, claims that he assigned the work to Bender and assumed, without checking, that it had been completed. In any event, in either September or October, McGoldrick and Bender returned to the job-site (although Bender had since been discharged by Haughton) and discovered that the station had not been rewired.

 By letter dated November 2, 1973, McGoldrick filed charges alleging that Berg had violated Article XIV, Section 4 of the Constitution and By-laws of the International Union by refusing "to comply with an order given him by me in my capacity as a Business Agent" on or about June 15, 1973. In accordance with the constitutions and by-laws of the Local and International Unions the charges were referred to the Executive Board of the Local, which has the authority to try, hear and determine charges against a union member.

 On January 4, 1971, the Executive Board mailed plaintiff a copy of McGoldrick's charges under a cover letter indicating that a hearing on the alleged violation would be held on February 7, 1974. A second such mailing occurred on January 21. *fn2" Plaintiff states that because of both the lapse of time between the incident and his receipt of the notice and the fact that he receives an average of six orders per month from the Business Agent and numerous other orders from the Job Superintendent and the Shop Steward, he was unable to recall the specific order.

 Subsequent to receiving the notice, Berg attempted to learn the nature of the order in question from McGoldrick, who refused to divulge the sought-after information. Plaintiff was finally able to persuade Thomas Macchia, the Union Secretary, to reveal the specifics of the charges against him. Armed with this knowledge, Berg obtained a letter corroborating his version of the incident from William Hughes, who was present at the June 15 meeting.

 At the hearing *fn3" on February 7 plaintiff attempted to have the charges dismissed due to their vague, general and unspecified nature and his consequent inability to prepare an adequate defense. Nevertheless the hearing proceeded *fn4" after which the Board found plaintiff guilty and levied a fine of $2,000 against him. Berg appealed this decision to the General Executive Board of the parent union, which affirmed the finding of guilt but reduced the fine imposed to $300.

 However, Berg refused to pay the fine and on February 28, 1975, Macchia, in his capacity as Treasurer of defendant Union, wrote Berg requesting payment under the threat of loss of his status as a member in good standing of the Union. Undaunted, Berg continued to withhold payment of the fine and when he tendered his dues for the second quarter of 1975, they were rejected by the Local. Plaintiff brings this suit to preserve his status as a member in good standing of defendant Union.

 Relief Sought

 On this motion for summary judgment plaintiff seeks the following relief:

 1. A declaration that the disciplinary proceedings are null and void;

 2. An injunction restraining the defendants from interfering with or preventing plaintiff's free exercise of his rights and privileges as a member in good standing of defendant Union;

 3. Compensatory damages in the amount of $50,000 plus expenditures;

 4. Punitive damages in the sum of $100,000;

 5. Reasonable counsel fees in the sum of $10,000, together with costs and ...


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