The opinion of the court was delivered by: MOTLEY
Defendants have moved for an order dismissing the complaint in this action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiffs have moved for a preliminary injunction ordering defendants to: 1) immediately reinstate plaintiff Richard Ostrowski as shop steward; 2) refrain from presenting new evidence against plaintiff Ostrowski in his appeal presently pending before the National Executive Board; and 3) refrain from in any way disciplining plaintiffs for exercising their rights guaranteed under 29 U.S.C. § 401 et seq.
Plaintiffs are members of defendant Local 1-2, Utility Workers Union of America, AFL-CIO ("Local 1-2"). At issue in this action is the removal of plaintiff Ostrowski from his position as shop steward for Local 1-2. Plaintiffs allege that Ostrowski's removal is in violation of his rights under Section 101(a)(2) of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 411(a)(2). Plaintiffs also allege that Ostrowski's removal violated the due process guarantees provided in Section 101(a)(5) of the LMRDA, 29 U.S.C. § 411(a)(5).
Plaintiffs' complaint includes the following allegations:
Plaintiff Richard Ostrowski is a member of Local 1-2 and has been employed by Con Edison since July, 1966. In October, 1976, plaintiff Ostrowski was elected as shop steward and has remained in that capacity until September 28, 1979. Ostrowski has never received any criticism for the manner in which he has carried out his functions as shop steward.
Among the responsibilities of shop steward is to take action with respect to the health and safety of workers. In carrying out the functions of shop steward, Ostrowski has been concerned about questions of the health and safety of workers for whom he acts as steward, in particular, the dangers of low-level radiation to which workers at Con Edison's Indian Point nuclear power plant are exposed.
Periodically there are repair jobs at Indian Point which require workers who do not regularly work at that facility. There is a limited number of workers who would voluntarily agree to work at Indian Point on such short-term repair jobs. On some occasions a number of union members have been required to work at Indian Point when there have been an insufficient number of volunteers. Ostrowski has also been concerned about the dangers of low-level radiation because, as a Con Edison employee and union member, he may be faced with the possibility of working at Indian Point if and when there are not enough welders who are willing to volunteer to work there.
In April, 1978, in response to his own concern, and fears expressed by other union members, including some persons for whom Ostrowski acted as shop steward, plaintiffs Ostrowski, John Lynch, Thomas Moran, and other union members formed a group called "Concerned Employees Against Radiation Exposure." The group met with defendants James Joy and Patrick J. Gallagher, officers of Local 1-2, to express their views. The group requested speakers from the union who would fully present the health questions concerning radiation. Defendants Joy and Gallagher failed to provide speakers and instead referred the group to the union safety consultant, Philip Lorio, who only provided information expressing one side of the controversy concerning radiation danger, stating that low-level radiation presents no danger and that current exposure levels were safe.
In the spring of 1979, Ostrowski and other union members were given to believe that in the late summer a greater than normal number of Con Edison employees would be needed to do repairs at the Indian Point power plant. In an effort to provide union members with information to enable them to make an informed decision about whether they wished to volunteer or otherwise work at Indian Point, Ostrowski, under the auspices of Concerned Employees Against Radiation Exposure, arranged a meeting for June 6, 1979, at the Knights of Columbus Hall in the Bronx (hereinafter referred to as the "Narjarian meeting). Through a group known as the "SHAD Alliance," Ostrowski obtained a speaker, Dr. Thomas Narjarian, who had done research concerning the dangers of low-level radiation.
On July 27, 1979, Ostrowski was informed that charges had been brought against him in connection with the Narjarian meeting by defendant John Clancy, First Vice-President of Local 1-2, "for collaborating with a group called the S.H.A.D. Alliance whose purpose it is to close the Indian Point Plant." On August 16, 1979, Ostrowski was tried by the Executive Committee of the union, sitting as a trial committee. At the trial, Ostrowski requested that a verbatim transcript by a neutral court reporter be provided or that he be permitted to tape the proceeding. The request by Ostrowski for a transcript or for permission to tape the proceedings was denied. On August 29, 1979, Ostrowski received the opinion of the Executive Committee finding him guilty of willfully harming the union and removing him as shop steward for eighteen months.
On September 6, 1979, Ostrowski received a letter from Richard Bestoff, Acting Chairman of the Trial Committee, informing him that, after consultation with the union's attorney, the Executive Committee had decided to give him a new trial because of the failure to provide a transcript. The second trial of Ostrowski was held on September 12, 1979. Ostrowski was found guilty of willfully harming the union and was suspended as shop steward for fourteen months.
According to union procedure, the report of the Trial Committee was to be reviewed by a union meeting scheduled for September 26, 1979. The report of the Trial Committee was adopted by voice vote of the union membership. Ostrowski was formally notified of that decision by a letter dated September 28, 1979, which he received on October 2, 1979.
Plaintiff filed an appeal with the National Executive Board pursuant to Section 10 of the By-Laws of Local 1-2 and requested a stay of the decision of Local 1-2 pending appeal. In support of his stay, Ostrowski submitted petitions requesting his reinstatement, signed by fifty-one persons for whom he acted as shop steward. On December 10, 1979, Ostrowski received a letter from the Secretary-Treasurer of the union, denying Ostrowski's motion for reinstatement as shop steward pending appeal.
Plaintiff alleges that the purpose of defendants' actions removing Ostrowski as shop steward was to silence Ostrowski and other union members who seek to obtain and share information on the dangers of low-level radiation.
Defendants have moved for an order dismissing the complaint in this action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that the LMRDA requires the dismissal of this action because plaintiffs have failed to exhaust their internal union remedies. The relevant provision of the LMRDA is set forth in 29 U.S.C. § 411(a)(4). Section 411(a)(4) provides that a union member "may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within (his union), before instituting legal or administrative proceedings." The limitations of Section 411(a)(4) are permissive; thus, whether or not a plaintiff will be required to utilize his internal union appeals is a matter within the discretion of the trial judge. Keeffe Bros. v. Teamsters Local Union No. 592, 562 F.2d 298, 303 (4th Cir. 1977); Semancik v. United Mine Workers of America District # 5, 466 F.2d 144, 150 (3d Cir. 1972); Giordani v. Upholsterers International Union of North America, 403 F.2d 85, 88 (2d Cir. 1968); Detroy v. American Guild of Variety Artists, 286 F.2d 75, 78 (2d Cir.), cert. denied, 366 U.S. 929, 81 S. Ct. 1650, 6 L. Ed. 2d 388 (1961).
It is well-established that "a free speech violation generally justifies dispensing with administrative remedies." Keeffe Bros. v. Teamsters Local Union No. 592, supra, 562 F.2d at 303 (citing Semancik v. United Mine Workers of America, supra, 466 F.2d at 150-51); see Giordani v. Upholsterers International Union, supra, 403 F.2d at 88 n.7. See also Bradford v. Textile Workers of America, AFL-CIO, Local 1093, 563 F.2d 1138 (4th Cir. 1977). In the case at hand, plaintiffs have alleged a free speech violation which would justify dispensing with administrative remedies.
Moreover, while Section 411(a)(4) provides that a union member may be required to exhaust reasonable hearing procedures, that section also provides that exhaustion shall not be required after "a four-month lapse of time." In the case at hand, not only have more than seven months elapsed since Ostrowski was informed that charges had been brought against him, but also more than four months have elapsed since Ostrowski filed his appeal with the National Executive Board. Pursuant to Section 411(a)(4), Ostrowski need not exhaust his internal union remedies since the four-month period has elapsed.
Defendants argue that the delay in the National Executive Board appeal was occasioned solely as a result of an alleged request by Ostrowski for further time to perfect his appeal. Defendants argue that a plaintiff cannot take advantage of his own delays to satisfy Section 411(a)(4). See Carroll v. Associated Musicians of Greater New York, Local 802, 235 F. Supp. 161, 171 (S.D.N.Y.1963). This court finds, however, that the record does not support defendants' claim that Ostrowski somehow improperly delayed his own appeal.
Ostrowski was formally notified of the Trial Committee's decision by a letter dated September 28, 1979, which he received on October 2, 1979. Under Article XX, Section 9, of the by-laws of Local 1-2, Ostrowski's appeal was due thirty days from the date of the letter notifying him of the Trial Committee's decision. Because the letter was dated September 28, 1979, the thirtieth day fell on a Sunday, October 28, 1979. Ostrowski telephoned Richard Bestoff for information concerning the due date of his appeal to the National Executive Board. Bestoff indicated to Ostrowski that it would be acceptable if the appeal were filed on Monday, October 29, and it would not even be a problem if it arrived later. Ostrowski's appeal was then mailed by U. S. Government Express Mail on Saturday, October 27, 1979, with the guarantee that it would be delivered no later than Monday, October 29, 1979. The Express Mail receipt appears to indicate that actual delivery was made and acknowledged on October 28, 1979, or at the latest, October 29, 1979. Nevertheless, by letter dated November 7, 1979, Ostrowski was informed that his appeal was received in the National Secretary-Treasurer's office on October 31, 1979. Ostrowski was further informed that since his appeal was mailed and in transit to the National Office within the time specified, it would be considered as timely.
Thus, the record indicates that: 1) Ostrowski was informed that it would be acceptable if his appeal were filed on October 29, or later; 2) while the National Secretary-Treasurer, Marshall M. Hicks, did not receive Ostrowski's appeal until October 31, the Express Mail receipt demonstrates that someone in the National Office received the appeal on October 28 or 29; and 3) Ostrowski's appeal was considered as timely by the National Office. Accordingly, defendants' argument that Ostrowski is attempting to take advantage of his own delay is without merit.
In summary, the court concludes that, in the court's discretion, plaintiffs will not be required to utilize internal union appeals before bringing this action. In light of the free speech violation alleged by plaintiffs, exhaustion of internal union appeals will not be required in this action.
Defendants also argue in support of their motion to dismiss that Ostrowski's position as a union shop steward is not afforded the protection of the LMRDA. Defendants argue that, therefore, the court should dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.
In support of their argument that Ostrowski's position as a shop steward is not afforded the protection of the LMRDA, defendants erroneously cite the Second Circuit's decision in Newman v. Local 1101, Communications Workers of America (Newman I ), 570 F.2d 439 (2d Cir. 1978). In Newman I, contrary to defendants' suggestion, the Second Circuit explicitly recognized that "(as) a member of the union a union official or employee, of course, enjoys the rights guaranteed by LMRDA, ... and his suspension or removal in reprisal for his exercise of his free speech rights as a member would violate the Act." Id. at 444-45 (citations omitted). Of course, the Second Circuit also recognized that "(on) the other hand, a union official or employee also has certain duties toward the organization he ...