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ROSARIO v. DOLGEN

November 14, 1977

TOMAS ROSARIO, OVIDIO VEGA and RAY CABEL, Plaintiffs,
v.
ABE DOLGEN, Individually and as Manager of AMALGAMATED LADIES' GARMENT CUTTERS UNION, LOCAL 10, International Ladies' Garment Workers' Union, and THE CITY OF NEW YORK, Defendants. TOMAS ROSARIO, OVIDIO VEGA and RAY CABEL, Plaintiffs, v. AMALGAMATED LADIES' GARMENT CUTTERS' UNION, LOCAL 10 Of I.L.G.W.U. and INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, Defendants



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

 CONSTANCE BAKER MOTLEY, D.J.

 These are two actions brought by three concededly "dissident" members of Local 10, Amalgamated Ladies' Garment Cutters' Union (Local 10) charging that Local 10, its former manager, Abe Dolgen (acting in both his individual and official capacities), and the parent union, International Ladies' Garment Workers' Union, AFL-CIO (ILGWU), have all, in various respects, acted to abridge both the substantive and procedural rights afforded them by Title I of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§ 401 et seq. Jurisdiction is predicated upon Section 102 of the LMRDA, 29 U.S.C. § 412. Additionally, plaintiffs have asserted a pendent state claim against Dolgen and the City of New York in the first action.

 At the outset, the court has decided to consolidate the two cases. As will become readily apparent from the discussion of the two complaints, infra, the allegations constituting the federal claims in the two actions describe a pattern of union disciplinary activity springing from a single incident in January of 1975. To continue to treat these two actions as separate cases, even with the different named defendant parties, would be the height of formalistic folly. Accordingly, the court orders the cases consolidated, as it clearly can on its own motion. 5 Moore's Federal Practice, P 42.02, at 42-7 (2d ed. 1976). *fn1"

 In both cases, the various defendants have moved to dismiss the complaint. The City has moved to dismiss, pursuant to Rule 12(b)(1), Fed. R. Civ. P., on the ground that the court lacks jurisdiction of the claim asserted against it. The remaining defendants in the first action have sought dismissal on the ground that the complaint fails to state a claim upon which relief can be granted, Rule 12(b)(6), and, in the case of Local 10, on the ground that the action is moot. Since Dolgen and Local 10 have accompanied their motions with substantial evidentiary affidavits, the court will treat their motions as requests for summary judgment. Rule 12(b). Plaintiff has cross-moved for summary judgment of liability on two issues. In the second action, both Local 10 and the ILGWU have moved for summary judgment and plaintiff has cross-moved for a preliminary injunction and for leave to file a supplemental complaint. For the reasons set forth infra, plaintiffs' motions for summary judgment, for leave to file a supplemental complaint, and for a preliminary injunction will be granted. The various motions to dismiss will be granted in part and denied in part, as indicated.

 Although certain of the facts in this case are bitterly contested, the main outlines of the case are reasonably clear and may be set forth to place the disputed issues in perspective. A brief consideration of the complaints will serve to indicate some of the problems presented by this case.

 FACTS

 The first complaint alleges that, prior to the events in question, all three plaintiffs were members in good standing of Local 10, and that they had been actively opposed to the policies and practices of the incumbent officialdom of that Local, including defendant Dolgen, who was its Manager. On January 29, 1975, the plaintiffs allegedly entered Dolgen's office, at his invitation, to protest alleged discrimination in the employment referral practices of the Local and of Dolgen in particular. Subsequently, after a period of time, Dolgen left the office and returned in the company of two New York City police officers. After some discussion, the substance of which is in dispute, the police officers left with Rosario and Vega. According to plaintiffs, defendant Dolgen instructed the officers to place them under arrest; according to Dolgen and Local 10, no such instruction was ever given at the office, and the police were merely asked to remove the plaintiffs who were allegedly obstructing union business.

 According to the complaint, defendant Dolgen, "acting in his individual capacity", thereafter filed intra-union charges against plaintiffs on or about February 10, 1975. The charges, filed with the Secretary of the Executive Board of Local 10, alleged that plaintiffs violated certain portions of the union constitution *fn2" "[in] that on January 29, 1975 each in conjunction with each other, jointly took possession of the office of the Manager of Local 10, obstructed and interfered with the conduct of the usual business of Local 10, interfered with the functioning of the business agents and officers of Local 10, and refused to leave said office when ordered to do so by officers of Local 10.

 "And further, in that Raymond Cabel subsequently left the office of the manager, proceeded on to the waiting room in the premises of Local 10, and sought to provoke physical action against the elected administration of Local 10, by members of Local 10 who were in such waiting room."

 Plaintiff alleges that "[the] charges filed by Dolgen as aforesaid were and are false and were filed by him in an attempt to inhibit, impair and/or intimidate plaintiffs in the exercise of rights guaranteed them by the LMRDA."

 It is further alleged, and not contested, that the charges preferred against plaintiffs were heard by the Executive Board of Local 10, sitting as a grievance committee, *fn3" on February 25, 1975, and that plaintiffs were found guilty as charged. Beyond the fact that a trial took place and that plaintiffs were disciplined, very little about the February 25 hearing is not in dispute. Plaintiff alleges that defendant Abe Dolgen, although the charging party, "participated actively as Chairman" of the Executive Board and as a member thereof during the conduct of the trial, the deliberations following trial, and the formulation of decision. The complaint further alleges that "[certain] persons, business agents of Local 10 who were witnesses to the events in question, and who testified in support of the charges at the said trial, also participated as members of the trial body in the conduct of the trial, the trial body's subsequent deliberation, and its decision." To rebut these allegations, Local 10's attorney has submitted copious affidavits, notably those of Nat Klein, the Secretary of the Executive Board, which seek to establish that Dolgen and the other business agents did not improperly participate in the deliberations, and were not members of the Executive Board, but merely performed their proper and circumscribed functions as charging party and witnesses, respectively. Plaintiff Rosario has duly submitted a responsive affidavit challenging the veracity of defendants' account of the proceedings, and again asserting that Dolgen "formally chaired" the meeting and "directed proceedings". At the very least, it is safe to conclude that the "facts" concerning this disciplinary hearing are in dispute -- a dispute which is not satisfactorily resolved by the simple assertion in Klein's affidavit that Dolgen was not officially a member of the Executive Board.

 By letters dated February 28, 1975, plaintiffs were separately notified of the decision of the Executive Board. In part, the letter recited that "the Executive Board has voted to suspend you from participation in all Union activities for a period of one year from the date of this decision. This does not prevent you from taking up such business as a member may properly have in the Union office, as long as you do not interfere with the operation or activities of the Union office."

 Plaintiffs duly appealed the decision to the Appeal Committee of the General Executive Board (GEB) of the I.L.G.W.U. That body reversed the Executive Board's decision. While noting that "[on] the evidence in the record, the Local 10 Executive Board could properly have found the accused guilty as charged", the Appeal Committee remanded the case to Local 10's Executive Board on the ground that that body had improperly permitted Dolgen and his witnesses to be present during the deliberations on the charges in question. The Appeal Committee ostensibly assumed that the reason for the continued presence of Dolgen and the witnesses had been that the disciplinary hearing had preceded a regular business meeting of the Executive Board, at which Dolgen and the other officer-witnesses would ordinarily present reports. The Committee also made clear that "[there] [was] no evidence in the record, and none was presented by the accused, that any of the persons involved in the hearing as a charging party or as a witness, participated in or influenced the decision appealed from." However, to avoid any appearance of impropriety, the punishment was vacated, and the charges remanded with instructions to Local 10's Executive Board to make its decision in executive session.

 By letter to the Secretary of the Executive Board, Dolgen again preferred the identical charges against plaintiffs, and these charges were heard by the Executive Board on May 21, 1975. According to the complaint, "[the] executive board which conducted the second trial . . . was substantially the same executive board that had conducted the [first] trial. . . ." Plaintiffs allege, and defendants do not dispute, that several members sat on both trials, both of which unanimously found them guilty as charged and imposed identical punishments. According to plaintiffs, utilization of the same body for retrial -- a procedure sanctioned by the union constitution *fn4" -- resulted in a trial body whose members were "biased" against plaintiffs, and who had prejudged plaintiffs guilty of the charges against them.

 In a separate assignment of error, plaintiffs allege that the Executive Board at the second trial was "controlled and manipulated" by defendant Dolgen who, in so controlling and manipulating it, was "actuated by malice", presumably against plaintiffs herein. As with respect to the charges of impropriety directed toward the first trial, defendants have submitted affidavits seeking to establish that the allegations regarding manipulation are unfounded. Rosario, in response, has submitted an affidavit alleging that, among other things, "Dolgen sat in the audience and directed proceedings from there. . . ." Suffice it to say that the actual facts concerning Dolgen's role in the second trial proceeding are also in some dispute.

 At each of the trials at the Local level, plaintiffs allege that they requested the right to make their own record of the proceedings, whether by tape recording or by bringing a competent stenographer. Although defendants dispute whether plaintiffs ever requested to bring a stenographer, as opposed to a tape recorder, they admit that plaintiffs were not permitted to make an electronic record of the proceedings, and they have, in the affidavit of the Secretary of the Executive Board, made clear that the Local would not have permitted the use of a stenographer even if it had been requested.

 Plaintiffs further allege that, subsequent to each of the trials described above, they requested the right to examine the official, non-verbatim minutes of the trials which had been taken by a member of the Executive Board, but that they were denied the right to inspect such minutes.

 Subsequent to the second trial, plaintiffs again appealed to the Appeal Committee of the GEB. By letter dated July 28, 1975, plaintiffs were notified that the Appeal Committee had rejected their appeal and affirmed the decision of the Executive Board of Local 10. All assignments of error were rejected. The Committee held (1) that plaintiffs had presented no evidence to support their charge that the Executive Board was biased and had prejudged their case, and that such a conclusion could not be drawn merely from the fact that the same body heard both cases; (2) that plaintiffs had presented no more than a "bare, unsubstantiated statement" that Dolgen controlled and manipulated the hearing and decision at the second trial; (3) that the minutes prepared by the Executive Board were accurate, plaintiffs having presented no evidence to the contrary; (4) that plaintiffs were not entitled to a copy of the minutes of the trials below; *fn5" (5) that the Executive Board had properly refused to allow plaintiffs to make a tape recording of the proceedings; *fn6" and (6) that plaintiffs' statements denying the charges were refuted by the "overwhelming weight" of the evidence of their guilt.

 In September of 1975, plaintiffs brought this first action naming as defendants Dolgen, individually and officially, and the City of New York. The federal claim, predicated upon the events above set forth, asserted that the Executive Board had imposed the disciplinary punishment above described in retaliation for plaintiffs' exercise of the critical rights guaranteed them by the LMRDA, and that the punishment was therefore in violation of 29 U.S.C. § 529. *fn7" The complaint further alleged that plaintiffs had been denied the "full and fair hearing" guaranteed them by 29 U.S.C. § 411(a)(5)(C), *fn8" for the particular reason that the members of the trial body which imposed the discipline upon plaintiffs were biased against them and had prejudged their case. Furthermore, the complaint alleged that the disciplinary punishment imposed was invalid on its face, in that it "purports to deny to members of a labor organization rights and privileges guaranteed them by the LMRDA." Plaintiff further alleged consequent damage to reputation and mental suffering. A second cause of action, discussed in greater detail below, asserted a state tort claim against Dolgen (in his individual capacity) and the City of New York. The relief requested included (1) a declaration that the punishment in question was "null, void, and invalid", (2) an injunction restraining "defendant Local 10" and its agents from giving any effect to the punishment; (3) compensatory damages of $10,000 for each plaintiff for the alleged violations of the LMRDA; (4) compensatory damages of $10,000 for each plaintiff from defendant Dolgen, individually, and/or the City of New York on the pendent state count; (5) punitive damages of $25,000 for each plaintiff from defendant Dolgen (without specifying whether in his individual or representative capacity); and (6) costs and attorney's fees.

 It turned out, however, that the filing of the first suit was but another chapter in the tortuous history of this intra-union litigation. By decision of October 8, 1975, the General Executive Board of the ILGWU, on its own motion, *fn9" reviewed the decision of the Appeal Committee and directed that the charges be reheard de novo by a Trial Committee of Local 10 under certain specified conditions. *fn10" The events incident to this appellate direction and the subsequent, third disciplinary hearing by Local 10 form the subject matter of plaintiffs' second complaint, filed in late July of 1976.

 The next regularly scheduled membership meeting was to be held on November 24, 1975. Plaintiffs allege that Local 10 failed to give its members "full notification" of the November 24 meeting and that, "as a result of such failure the actual attendance by members at the said meeting was unusually low and allowed for a greater than usual domination of the meeting by the incumbent officers of Local 10." Affidavits submitted by plaintiffs and defendants are in disagreement as to whether the notice for this meeting differed in any material respect from that given for any other meeting. Moreover, they differ further as to the reasons for the lower attendance at the meeting.

 The meeting was, in any event, held on November 24, and a Trial Committee was elected. Plaintiffs allege that the Trial Committee was selected over their objections, in that the election was held by an open hand vote (rather than by secret ballot) and "in such a manner that persons selected and hand-picked by the Manager of Local 10 and by others allied with him, were elected." They further allege that the members of the Trial Committee were "allied with the incumbent officialdom of Local 10 and biased against each of plaintiffs because of the plaintiffs' opposition to the officers." Not surprisingly, Local 10 vigorously excepts to these conclusory allegations and has submitted extensive affidavits by both the members of the Trial Committee and also by Nat Klein, the Secretary of Local 10's Executive Board, averring that the Trial Committee was not selected in an undemocratic manner, that its members were not "hand-picked" by Dolgen, and that they were able to render -- and did render -- an unbiased opinion on the charges preferred against plaintiffs.

 Plaintiffs were duly notified of the Trial Committee hearing scheduled for December 18, 1975. Prior to the date of the hearing, plaintiffs requested by letter that they be supplied with copies of the official minutes of the two previous trials which had resulted in disciplinary action against them (February 25, 1975 and May 21, 1975) and also the minutes of the GEB Appeal Committee hearings on April 8, 1975 and July 22, 1975. The stated ground for these requests was that "[these] minutes are necessary for [plaintiffs] to have a fair opportunity to prepared [sic] and present a defense at the trial. . . ." The requests were denied by both Local 10 *fn11" and the I.L.G.W.U. *fn12"

 On December 18, plaintiffs appeared at the Trial Committee hearing and insisted upon the right to make their own tape recording of the trial. According to the complaint, "it would have been futile for them to have appeared, alternatively, with a court reporter or competent stenographer for the purpose of making a record, and the futility of such an appearance was made manifest by previous statements and denials of their previous requests." As noted previously, subsequent admissions in affidavits submitted by Local 10 make it clear that the latter statement is correct, and that neither stenographer nor tape recorder would have been permitted. *fn13" Because of plaintiffs' insistence on their right to make a tape recording of the proceedings, the hearing was adjourned until January 8, 1976. In a letter to Rosario dated December 24, 1975, the chairman of the Trial Committee indicated that the meeting was adjourned "to give you an opportunity to decide whether you would proceed with the hearing without a tape recorder or any other electronic recording device and advised you that if you again produced a tape recorder or any other electronic recording device, the hearing would proceed in the absence of the accused." In response to a reiterated request for minutes of prior trials and appeals, the chairman said, "I cannot go into the question, at this time, of the minutes you [have requested]. Neither I nor the Trial Committee can make any ruling until we hear the arguments why these documents are necessary to prepare for a new trial and why the minutes requested have been refused. Our Trial Committee will make this ruling only if you appear at the adjourned hearing without a tape recorder or any other electronic recording device and after we hear the arguments." *fn14"

 Despite the clear import of the letter from the chairman of the Trial Committee, the three plaintiffs and their lay counsel appeared at the scheduled January 8, 1976 hearing insisting upon their right to tape record the proceedings. When they refused to relinquish their asserted right to make their own tape recorded record of the hearing, the members of the Trial Committee retired to an adjacent room to conduct the trial in their absence. *fn15"

 The precise circumstances under which this third trial was conducted are in dispute. Plaintiffs assert in their complaint, and have submitted affidavits to buttress their position, that the Trial Committee "entered another room from which plaintiffs were excluded, locked the door" and proceeded to conduct the trial in their absence and in the absence of their lay counsel. Defendants, in turn, assert through affidavits that the door to the hearing room was never locked, that plaintiffs and/or their lay counsel were free to enter and participate fully in the proceedings if only they would drop their demand that they be able to tape record the proceedings, and that, in any event, the Committee considered plaintiffs' written statements. Whatever the exact facts may be, it is clear that, due to their insistence on the right to make a tape recording, plaintiffs were excluded from this trial. By written decision dated January 29, 1976 (and received by plaintiffs), the Trial Committee sustained the first of the two charges preferred against all three plaintiffs. It suspended Rosario and Vega for a period of 18 months, and Cabel for a period of one year, from attending or participating in membership meetings of Local 10. It did not sustain the second charge, which had been preferred against Cabel only.

 Plaintiffs again duly filed an appeal to the Appeal Committee of the GEB, which met to hear the appeal on April 8, 1976. Plaintiffs appeared with their lay representatives and again insisted on the right to make their own tape recording of the proceedings. The chairman of the Appeal Committee, distinguishing between the use of a tape recorder and that of a public stenographer, which they had not requested, refused to proceed with the appeal until plaintiffs desisted from the use of the recorder. Plaintiffs refused and the hearing was thereupon adjourned sine die. Subsequent letters exchanged between plaintiffs and the Secretary of the Appeal Committee made clear that resumption of the hearing on the appeal was contingent merely upon plaintiffs' acquiescence in the ruling by the Appeal Committee barring their use of tape recorders. Due to their refusal to comply with that ruling, plaintiffs and the union remained in a stand-off, and the appeal was never heard.

 In this posture of the union proceedings, plaintiffs filed their second suit on July 20, 1976. As in the first action, they alleged, in substance, that the disciplinary action against them was merely a pretext for retaliation against them due to their outspoken criticism of and opposition to the "incumbent officialdom" of Local 10, and was, therefore, in violation of 29 U.S.C. § 529. *fn16" They further alleged that the disciplinary actions violated their rights to free speech within the union and to attend and participate equally with others at union meetings. *fn17" Finally, they again alleged that they were denied a full and fair hearing on the charges against them. They sought injunctive and declaratory relief substantially identical to that requested in the first suit, as well as an order "directing defendants to accord plaintiffs all the rights and privileges of membership in Local 10 and [the ILGWU]." And they sought compensatory and punitive damages, as well as attorney's fees and costs.

 Institution of this second suit merely set the stage for further battle among these litigious parties, however. In late August of 1976, plaintiffs moved in this court for a preliminary injunction preventing Local 10 or the I.L.G.W.U. from effectuating the punishment imposed upon them by the Trial Committee's decision of January 29, 1976. After considering extensive briefs and affidavits, hearing extended argument, and taking some testimony, the court granted the motion and enjoined those defendants and their agents "from giving any force or effect to the disciplinary punishment of suspension from attending membership meetings imposed upon plaintiffs" by that decision, "pending trial and ultimate disposition of this action". As stated in its brief Memorandum Opinion of September 20, 1976, the court merely found that plaintiffs had raised a sufficiently serious question concerning their entitlement to make their own record of the disciplinary proceeding to make such preliminary relief warranted under the accepted criteria in this Circuit. See Sonesta International Hotels Corp. v. Wellington Associates, et al., 483 F.2d 247, 250 (2d Cir. 1973). When defendants appealed that decision, the Court of Appeals affirmed from the bench on November 9, 1976.

 With litigation temporarily at a halt in the federal court, however, activity was renewed within the Union. On December 14, 1976, the Executive Committee of the GEB rendered a "Decision" *fn18" concerning the charges brought by defendant Dolgen. Noting the "unusual circumstances" presented by this court's action in the case, and without establishing any precedent for any other trial or appeal, the Executive Committee decreed that "the appeal from said charges shall be heard and determined" by a Special Appeal Committee of the GEB under certain specified conditions. The "appeal" was to be heard by a committee consisting of five vice-presidents of the I.L.G.W.U., none of whom had heard the appeals previously taken in April and July of 1975 from the decision of the Executive Board of Local 10. "The appeal from the Trial Committee's decision of January 29, 1976 [was to be] a hearing de novo by the Special Appeal Committee." The accused and charging party were to have the right to be present in person or by lay counsel; to present any evidence they wished; to confront and cross-examine the witnesses; and to make opening and closing statements, "as is customary in disciplinary proceedings in the ILGWU." Upon written request from one of the plaintiffs, they were to be supplied with the minutes of both the first and second trials and appeals. The minutes of the " de novo appeal hearing" were to be taken by a certified shorthand reporter, at the ILGWU's expense, and copies of the minutes were to be supplied to the plaintiffs. Any penalty assessed by the Special Appeal Committee, "other than suspension from all of the rights of membership or expulsion," was not to include disqualification as a Union officer. The hearing was to be held promptly after the date of the election of officers of Local 10 in the spring of 1977, and a copy of the Committee's decision was to be sent to each of the accused. Any appeal from the decision of the Committee was to be to the next convention of the I.L.G.W.U. *fn19"

 Copies of the Decision were sent to the plaintiffs by letter of December 14, along with a cover letter explaining that the Decision was "in connection with the appeal" taken by plaintiffs. Copies were also sent to the charging party (defendant Dolgen), to the Chairman of the Trial Committee of Local 10, and to Local 10. By subsequent letter to the same parties dated February 28, 1977, plaintiffs were informed that, as indicated in the earlier Decision, "the Special Appeal Committee of the General Executive Board will hold a hearing de novo on the appeal from the Trial Committee's decision of January 29, 1976" on March 23, 1977 at the specified meeting place.

 In response, plaintiff directed a letter dated March 14, 1977 to the Secretary of the Special Appeal Committee protesting against what they alleged were the Committee's attempts to retaliate against them and harass them. Specifically, they contended that, by their previous appearance before the Appeal Committee, they had exhausted their intra-union appellate remedies (at least, presumably, as far as required by the L.M.R.D.A.) and they had no further need to participate in the I.L.G.W.U.'s disciplinary proceedings. Accordingly, they indicated that they would not attend the " de novo hearing."

 In reply (by letter dated March 16), the Secretary of the Special Appeal Committee indicated that the "hearing de novo on [their] appeal" would be held as previously decided. Moreover, he revealed that the Executive Board's Decision had been ratified by the full G.E.B. on February 16, 1977. He also called to their attention Article 22, Section 4 of the I.L.G.W.U. constitution which, as indicated previously, *fn20" provides that "trial" may be conducted in the absence of the accused if he fails to appear without offering some good reason for his absence.

 Plaintiffs did not respond to the letter. Nor did they appear at the " de novo hearing" on March 23, which was held in accordance with the conditions specified in the ...


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