The opinion of the court was delivered by: WEINFELD
This is a motion to dismiss a second amended complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
Plaintiff is a licensed deck officer who at times has been employed as a supervisor aboard United States flagships. In April 1976, he applied for membership in the defendant union. Under its constitution, an application is subject to review by a membership committee and if it recommends admission and the recommendation is accepted by the union's general executive board, membership is granted. Pending consideration of his application plaintiff paid, as required under the union constitution, the initiation fees, dues and assessments. On December 13, 1978, the membership committee recommended that the plaintiff's application be denied. The general executive board accepted the recommendation and plaintiff was notified of the adverse ruling. The union, in accordance with its constitution, returned plaintiff's initiation fee but not the dues or assessments that he had paid.
During the pendency of his application he served upon various United States flag merchant vessels.
The second amended complaint alleges eight separate causes of action under various federal labor and civil rights laws, as well as the United States and New York State Constitutions. Jurisdiction is invoked under 28 U.S.C., sections 1331 and 1343, and 29 U.S.C., section 412.
The essence of plaintiff's first four claims is that he was wrongfully denied admission to the union and that his applicant status was wrongfully terminated. Plaintiff, in discursive allegations in the four separate causes of action, alleges that he was fully qualified for admission to membership; that he had a "vested right" thereto; that the denial of admission was arbitrary and capricious and that the denial violated his right to due process of law and the equal protection of the laws.
The union's constitution provides that prior to acceptance an applicant shall have no rights within the organization except to employment in accordance with the applicable bargaining agreements and the constitution.
There is no absolute right of admission to the union. Unions have the right to prescribe their own rules for admission into membership provided they are not inconsistent with the Labor-Management Reporting and Disclosure Act ("LMRDA").
Moreover," wrongful denial of union membership does not come within the ambit of either § 301 of the [Labor Management Relations Act] or § 102 of the LMRDA."
Here the union expressly reserved the right to refuse membership. Absent membership, plaintiff's asserted claims are not cognizable. The application for membership, which is subject to approval as prescribed by the union's constitution, does not constitute membership or result in any vested right.
Plaintiff makes a further claim that the union refused to afford him an opportunity to be heard in support of his application and thus deprived him of due process of law in violation of the Fourteenth Amendment to the United States Constitution and Article 1, section 6, of the New York State constitution. However, as an applicant plaintiff had neither a property nor a liberty interest that gave rise to a constitutional right to a due process hearing.
Plaintiff's failure to allege requisite state action also requires dismissal of these claims.
Since plaintiff at no time was accepted for membership in the union, he is not entitled to relief under the first four claims, each of which is predicated upon membership, or a claimed right to membership, in the union.
Plaintiff's fifth cause of action alleges that the defendant refused to refer plaintiff to job assignments in the same manner as other applicants and charges that on one occasion he was denied an available job on a vessel because a union official called the master of the vessel and instructed him not to employ the plaintiff. Although plaintiff was not accepted into the union as a member, the defendant owed him the duty of fair representation.
A breach of this duty occurs "when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith."
Plaintiff's allegations under the fifth cause of action, liberally construed, charges such conduct by the defendant union and accordingly is sufficient to withstand the defendant's motion for dismissal.
Plaintiff's sixth cause of action alleges that because he instituted a lawsuit against Sea-Land Services, Inc. ("Sea-Land"), a shipowner, the defendant union terminated plaintiff's status as an applicant and denied him membership and thereby violated his rights under 29 U.S.C., section 411(a) (4), which prohibits labor organizations from limiting the "right of any member . . . to institute an action in any court." However, plaintiff was never a "member" of the union and thus he cannot avail himself of this provision.
Plaintiff's seventh cause of action purports to assert a claim under 42 U.S.C., section 1985.
He alleges that Sea-Land and the defendant conspired to coerce him into abandoning his lawsuit against Sea-Land. While plaintiff does not specify which subdivision of section 1985 it is alleged was violated, only subdivision 2 would appear to be applicable. This creates a cause of action if "two or more persons . . . conspire to deter by force, intimidation or threat, any party or witness in any court of the United States from attending such court. . . ."
In order to state a claim under this provision, plaintiff must specify with "some degree of particularity overt acts which defendant engaged in which were reasonably related to the promotion of the claimed conspiracy."
Plaintiff must allege sufficient facts to show that "force, intimidation or threat" was employed in an effort to coerce him into abandoning his lawsuit.
Plaintiff's complaint is entirely devoid of any factual allegation giving content to his charge of the existence of the claimed conspiracy and acts that allegedly furthered its purpose to deprive him of a federal judicial forum. Merely tracking the statutory language does not satisfy this requirement: the complaint must contain some degree of specificity with respect to the alleged conspiracy.
Accordingly, this cause of action is dismissed for failure to state a claim upon which relief can be granted.
Plaintiff's final cause of action charges that a union official applied a racially denigrating epithet to him and thereby violated his civil rights. However, a derogatory reference by an individual does not give rise to a civil rights claim.
Accordingly, defendant's 12(b) motions are denied as to plaintiff's sixth claim for breach of fair representation, and granted as to all the others.