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June 6, 1984

MICHAEL COTTER, Plaintiff, against FRANCIS R. OWENS, individually and as Business Manager of Local 1-2, Utility Workers Union of America, and LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA, Defendants.

The opinion of the court was delivered by: SWEET


Plaintiff Michael Cotter ("Cotter"), an employee of the Consolidated Edison Company of New York, Inc. ("Con Ed"), has filed a complaint against defendant Local 1-2 of the Utility Workers of America ("Local 1-2") and defendant Francis R. Owens ("Owens"), business manager of Local 1-2 during the relevant period. *fn1" Cotter seeks to compel defendants to reinstate him as a member of Local 1-2's Nuclear Safety Committee ("Safety Committee"). Jurisdiction is invoked under section 412 *fn2" of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 401 et seq. The defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56, and upon the following findings of fact and conclusions of law, their motion is granted and summary judgment will be entered dismissing the complaint.

 The following facts are undisputed. Cotter was first hired by Con Ed in July 1959. At present, he is a "Mechanic A" in the Power Generation Department at Con Ed's Indian Point Nuclear Power Station ("Indian Point"). Cotter is also a Local 1-2 shop steward, and, according to his deposition, he has long been active in Local 1-2's politics. The record establishes that Cotter is a concerned advocate of worker safety and is often critical of the management of Con Ed and the leadership of Local 1-2.

 In April 1978, James Joy ("Joy"), then business manager of Local 1-2, appointed Cotter to the Safety Committee, which Joy created to disseminate safety information to union members, to monitor Con Ed's compliance with federal safety standards, to comment on new regulations and to suggest improvements in safety training and practices. The Safety Committee considers hazards and practices which it feels should be addressed at Indian Point. After establishing an agenda, members of the Safety Committee meet with Con Ed to express its views and seek changes in working conditions. In addition, the Safety Committee has, on occasion, met with national union officers and Nuclear Regulatory Commission officials. Only stewards who represent union members assigned to Indian Point are eligible for Safety Committee membership, but there is no limit to the number of stewards who may be appointed to the committee from each department.

 The Safety Committee is not governed by Local 1-2's by-laws, nor does it have independent rules and regulations. Since 1978, several stewards have been removed from the Safety Committee because they were promoted to management positions or were transferred from Indian Point, but Cotter is the only Safety Committee member to be removed against his will. Cotter last attended an Safety Committee meeting on November 20, 1980.

 In January 1981, Con Ed discharged Cotter, alleging that he had threatened a supervisor. Cotter brought an administrative action for reinstatement under the "whistle-blower" provision of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851, claiming that the alleged threat was a pretext for discharging him in retaliation for his efforts as an advocate of nuclear safety. On November 5, 1981, the United States Secretary of Labor ordered Con Ed to reinstate Cotter.The Secretary's order was affirmed by the Court of Appeals for the Second Circuit. Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982). In January 1982, Cotter instituted a wrongful discharge action in New York County Supreme Court against Con Ed and two of its supervisors. In April 1982, a default judgment was entered against Con Ed. Cotter returned to work at Indian Point on March 22, 1982.

 Although defendants state that Cotter was removed from the Safety Committee shortly after his termination in January 1981, they concede that he first learned of his removal from the Committee on September 15, 1982, when Owens informed him that Joe Summo ("Summo"), assistant business manager of Local 1-2, had reorganized the committee. Arguing that there had been no real reorganization outside of his removal, Cotter made requests to be reinstated to Summo and Owens.After Summo and Owens rejected his requests, Cotter tried unsuccessfully to enlist the aid of Joy, who had since become the president of the national union.

 Since his return in March 1982, Cotter has become more active than ever in union politics.In February, 1982, he helped to found a dissident group within Local 1-2 called the Right to Fight Back Committee ("Fight Back Committee"). The Committee, of which Cotter is chairman, criticizes Local 1-2's management in its newsletter, The Spark, and in leaflets. In June 1982, the Fight Back Committee published the first issue of The Spark. Page one featured an article titled "Welcome Back Cotter," which dealt with Cotter's reinstatement. Other articles were highly critical of Local 1-2's policies and practices. One accused Local 1-2 of overspending, listed the salaries of the full-time officers of Local 1-2, and encouraged the membership to "cut the fat." Another article reported the efforts of Cotter and other Fight Back Committee members to change Local 1-2's by-laws. In September 1982, The Fight Back Committee published the second issue of The Spark, which was also critical of Local 1-2's management. One article attacked the failure of the Safety Committee to meet on a regular basis and to realize its goals.

 Cotter filed the complaint in the instant action on February 23, 1983, seeking reinstatement to the Safety Committee. The dispute between the Fight Back Committee and Local 1-2's leadership is also the subject of a separate action before this court in Fight Back Committee v. Gallagher, 83 Civ. 8121 (S.D.N.Y.). In that action, the Honorable Robert J. Ward has issued two preliminary injunctions ordering Local 1-2's leadership to allow the Fight Back Committee to propose amendments to Local 1-2's by-laws. Cotter, by his affidavit, states that on February 27, 1984, his efforts to amend Local 1-2's by-laws were again rejected, allegedly in violation of union regulations and the LMRDA.

 Cotter alleges that he was removed from the Safety Committee in retaliation for opposing Local 1-2's management and instituting legal action against Con Ed and that his removal was therefore an infringement of his rights as a union member as set out in sections 411(2) and 411(4) of the LMRDA, thus giving rise to a cause of action under section 412. Section 412(2) provides:

 Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.

 Section 411(4) provides:

 No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding, or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator: Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative procedings against such organizations or any officer thereof: And provided further, That no interested employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceding, appearance, or petition.

 In support of their motion for summary judgment, defendants argue that the record demonstrates that Cotter's removal from the Safety Committee was not retaliatory. As noted above, defendants contend that Cotter was removed from the Safety Committee shortly after Con Ed terminated him in January 1981, since Cotter would no longer be at Indian Point and consequently could not fulfill his responsibilities as a Safety Committee member. Alternatively, defendants contend that even assuming arguendo that Cotter's discharge was retaliatory, such an action ...

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