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CROCCO v. LOCAL 333

July 8, 1985

AUGUSTINE J. CROCCO, Plaintiff,
v.
LOCAL 333, United Marine Division, International Longshoremen's Association, Atlantic Coast District of the International Longshoremen's Association and its Executive Board, the International Longshoremen's Association and its Executive Council, Defendants.



The opinion of the court was delivered by: MCCURN

NEAL P. McCURN, D.J.

MEMORANDUM-DECISION AND ORDER

 Plaintiff, Augustine Crocco, brings this action pursuant to the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq. [LMRDA] alleging that he was improperly disciplined by the defendant labor unions. Presently before the court is defendants' motion for summary judgment. For the reasons set forth below, the plaintiff's LMRDA claims are dismissed and the case is remanded to the Supreme Court of the State of New York for Renssalaer County.

 BACKGROUND

 Plaintiff is a member and former President of Local 1294, International Longshoremen's Association, AFL-CIO ["Local 1294"]. Local 1294 is a labor union representing longshoremen employed in the Albany, New York area and is an affiliated local of defendant International Longshoremen's Association, AFL-CIO ["ILA"]. Defendant Local 333, United Marine Division, International Longshoremen's Association, AFL-CIO ["Local 333"] is also an affiliated local of the ILA. Defendant Atlantic Coast District, International Longshoremen's Association, AFL-CIO ["ACD"] is the district of the ILA which covers the Albany, New York area.

 On March 1, 1981, Local 333 commenced a strike against Cibro Products in Albany, New York.The strike had been authorized by the President of the ILA. The defendants believed that for the strike to be successful it would have to be supported by other unions in the Albany area. The defendants contend that the plaintiff did not support the strike as he was required to do under the ILA Constitution, but rather told a local newspaper reporter that it was not a legitimate strike and that he would not support Local 333. Theother unions working at Cibro refused to honor Local 333's picket line, and as a result, the strike was a failure. The members of Local 333 who had gone out on strike were permanently replaced.

 On April 8, 1981, the President of Local 333 filed intra-union disciplinary charges against plaintiff with the ILA. The charges alleged that by failing to support the Local 333 strike and actively interferring with it, Crocco had engaged in conduct detrimental to the welfare of the ILA in violation of Article XVIII of the ILA Constitution. The President of the ILA referred the matter to the ACD and appointed a committee to conduct a hearing on the charges. A hearing was held on June 3, 1981. Mr. Crocco was present at the hearing and was represented by counsel. On August 24, 1981, the committee submitted its findings to the ACD Executive Board. The committee recommended that Crocco be removed from his position as President of Local 1294 and disqualified from running for any ILA office for a period of five years. This recommendation was never implemented and no discipline has ever been imposed against Crocco.

 Plaintiff commenced this action on August 31, 1981 in state court. Mr. Crocco sought to permanently enjoin the defendants from removing him as President of Local 1294 or interfering with his right to run for reelection. The action was removed to this court on September 8, 1981.

 In November, 1981, Local 1294 held its regularly scheduled election. Crocco ran for reelection but was defeated. He did not file a protest to that election.

 Mr. Crocco contends that despite the fact that no formal discipline was ever imposed against him, the mere threat of discipline caused him to lose the election. He contends that members of the union who were eligible to vote did not vote for him because they believed that even if Crocco won, he would be removed from office pursuant to the recommendations of the ACD committee. Crocco contends that he was wrongfully charged, that he did not receive a fair hearing, and that the recommendation of discipline caused him to lose the election. He contends that the defendants' actions constitute a violation of the LMRDA.

 DISCUSSION

 Mr. Crocco contends that he was improperly disciplined within the meaning of § 101(a)(5) of the Labor-Management Reporting and Disclosure Act which reads as follows:

 No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.

 29 U.S.C. § 411(a)(5). (emphasis added) It is clear from the record that Crocco was never "fined, suspended, expelled, or otherwise disciplined," thus, it would appear that the LMRDA does not apply here. However, Mr. Crocco argues that requiring him to submit to an unfair hearing which resulted in a recommendation of discipline is enough to show that he was "otherwise disciplined" within the meaning of the statute. The question of whether requiring a union member to submit to a disciplinary hearing can ever be construed as "discipline" within the meaning of § 411(a)(5) was addressed by the District Court for the Southern District of California in Deluhery v. Marine Cooks and Stewards Union, 211 F. Supp. 529 (S.D. Cal. 1962). In Deluhery the union trial committee recommended that the plaintiff be expelled from union membership, but ...


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