The opinion of the court was delivered by: COOPER
Defendant Laborers' International Union of North America, AFL-CIO ("the International" or "LIUNA") moves for partial summary judgment pursuant to Fed. R. Civ. P. 56, requesting us to find that neither monetary damages nor attorneys' fees against the International would be appropriate in this case. Defendant Local No. 17 ("the Local" or "Local 17") and the individual defendants support only that portion of the motion as relates to attorneys' fees and argue that the rationale advanced by the International is equally applicable to them. Further, the Local and individual defendants oppose the request of the International that summary judgment be granted it as to monetary damages. Plaintiff opposes the motion in toto.
The International also moves to amend its answer to assert the affirmative defense of statute of limitations, and, if granted, for judgment on the pleadings. The Local, individual defendants and plaintiff oppose the motion. In addition, the International moves without opposition to be represented by Theodore T. Green, Esq.
Plaintiff moves for leave to amend its complaint to allege denial of job referrals and loss of employment opportunities. All the defendants oppose plaintiff's request.
Plaintiff is a member of Local 17. At a meeting of the Local held on August 29, 1980, plaintiff became involved in an altercation between two members present. The meeting was interrupted and the police were called. When order was restored, plaintiff stood up and spoke without recognition from the presiding official. According to the Minutes of the meeting:
Br. Pat Petramale stated from the back of the meeting Hall that all three of you are crooks. Referring to the three Delegates on the rostrum. All the fucking Officers are crooks. The whole fucking Union and International is crooked and Br. Reed and Br. Curry naming the Election Committee are fucking liars. Fuck you all, you laborers deserve these people. I'm getting out of this fucking Union. They took all your money.
Plaintiff then walked out of the meeting. Two days later plaintiff was quoted in a local newspaper claiming that the scuffle was "set up" by the Local union leadership.
Charges were filed against plaintiff by the three individual defendants, Anthony Galietta (the Local's president), Lorenzo Diorio (the Local's business manager) and Lawrence T. Diorio (the Local's Secretary-Treasurer). The charges, directed both at plaintiff's conduct at the meeting and his subsequent remarks to the newspaper, alleged violations of two sections of the Uniform Local Union Constitution ("ULUC"): section 3(f), forbidding, inter alia, "interference with the proper and orderly conduct" of union business, the use of "vulgar and profane language," and the making of "slanderous statements or accusations" about union officers, and section 3(g), prohibiting members from "willfully slandering" union officers and from "circulating false reports or gross misrepresentations" about their honesty.
The hearing by the Local was held on October 29, 1980; plaintiff did not appear. The Board found him "guilty of all charges," fined him $ 1,500 and suspended him from attendance at union meetings for the next ten years. The membership of the Local approved these measures by a unanimous vote.
Plaintiff then appealed this decision to the International and submitted various documents in support thereof. The hearing before the International's Eastern Hearings Panel was held on June 23, 1981. Once again, plaintiff did not appear although duly notified. The Hearings Panel modified the Trial Board's ruling by finding that the only conduct which violated sections 3(f) and (g) of the ULUC was plaintiff's conduct at the meeting, not his report to the newspaper. The Panel also modified the discipline imposed by rescinding the fine and reducing plaintiff's suspension to two years.
Plaintiff filed this lawsuit on August 4, 1981. At the convention of the local unions and district councils held September 14-18, 1981, the delegates voted to repeal sections 3(f) and (g). In December 1981 Local 17 further reduced plaintiff's suspension to the time of the meetings held prior thereto.
A trial was held before us resulting in a jury verdict for defendants. On appeal, the Second Circuit reversed on the ground that a union member cannot be disciplined for a charge which does not distinguish between protected speech and other behavior, and concluded that "Petramale is entitled to a directed verdict on liability." Petramale v. Local No. 17 of Laborers International Union of N.A. et al., 736 F.2d 13, 19 (2d Cir. 1984). The Court of Appeals further declared:
Since subsections (f) and (g) of Article II, section 3 of the Uniforms Local Union Constitution have been deleted, Petramale's claims for declaratory and injunctive relief are moot. His claims for injunctive relief against the discipline imposed by Local 17 are viable, and an appropriate order consistent with this opinion should be entered by the district court on remand. His claims for damages and fees must be adjudicated on the remand.
We now proceed to examine each of the motions seriatum.
A. Dismissal of the Claims for Monetary Damages
LIUNA argues that it cannot be liable in damages since it merely performed its internal appellate functions in good faith. The International does not quarrel with the position that it could be liable for injunctive or declaratory relief. However, it repeats the assertion made by the Second Circuit that any such relief against it is now moot. Local 17, the individual defendants and plaintiff contend that the questions of whether the International acted only as an appellate review board and whether it acted in good faith are triable and inappropriate for summary judgment.
When a national or international union acts only as an appellate body and exercises its function in good faith, it cannot be answerable in damages to a member who is wrongfully disciplined. See International Brotherhood of Electrical Workers v. NLRB, 159 U.S. App. D.C. 242, 487 F.2d 1113, 1129 (D.C. Cir. 1972), aff'd, 417 U.S. 790, 41 L. Ed. 2d 477, 94 S. Ct. 2737 (1973); Solomon v. Brotherhood of Painters, Decorators and Paperhangers of America, 218 N.Y. 115, 122-23, 112 N.E. 752 (1916)(Seabury, J.); Schouten v. Alpine, 215 N.Y. 225, 231-32, 109 N.E. 244 (1915); Ehrlich v. Maggiore, 24 A.D.2d 947, 265 N.Y.S.2d 418, 420 (1st Dep't 1965). This issue is distinct from the question also raised by LIUNA of the liability of a national or international union for acts of its local acting as an agent. See Chapa v. Local 18, 737 F.2d 929, 932 (11th Cir. 1984); NLRB v. Local Union No. 46, 727 F.2d 234, 237 (2d Cir. 1984); Shimman v. Frank, 625 F.2d 80, 94-99 (6th Cir. 1980); Allen v. International Alliance of Theatrical, Stage Employees and Moving Picture Machine Operators, 338 F.2d 309, 319 (5th Cir. 1964). Indeed, this second issue is moot in the instant case since the Second Circuit already found that both the Local and International are liable. See Petramale, supra, at 19.
We thus must determine whether the International acted only in its appellate capacity and whether it acted in good faith (there is no claim that it acted fraudulently). With regard to the first question, the Local and individual defendants contend that LIUNA's "Hearing Panel did not simply review a cold record of the proceeding of the Local 17 trial board, but took live testimony from the three charging parties [the individual defendants herein] as well as from the Recording Secretary Victor Garzione." (Counter Statement of Material Facts as to which There is No Genuine Issue to be Tried. para. 17)
The Third Circuit in Goodman v. Laborers International Union of America, 742 F.2d 780, 784-85 (3d Cir. 1984) and the Ninth Circuit in Perry v. Milk Drivers' & Dairy Employees' Union, 656 F.2d 536, 539 (9th Cir. 1981) addressed an analogous issue to the one now before us. In both cases, the courts of appeal questioned whether defects in a hearing before a local union trial board were cured by a later fair hearing before the international union. In Perry, the Court held that a full trial de novo which makes an independent determination of the merits can cure the defects that arose from a biased panel of the local union. Perry, supra, at 539. The Court in Goodman further explored whether the action taken by the international constituted a trial de novo or a review of the local decision. In determining that the international's appeal panel acted as a reviewing board and did not retry the plaintiff therein, the Third Circuit relied on the following factors: (1) The wording of the constitution of the international union suggested that its appellate power was limited to a review of the local decision and did not extend to independent determinations of the merits. (2) Although the plaintiff was permitted to testify, call two character witnesses, cross-examine the witness called by the opposition and be represented by counsel, the record of the local trial board hearing was incorporated into the evidence considered by the international panel, which seriously undermined the independence and objectivity of the latter. (3) The language of the findings of the International panel indicated that it conducted a review process: its determination noted the fairness of the trial board and stated, "the charges are amply supported by the evidence," without making any specific findings. (4) The parties expected an appeal rather than a retrial. Goodman, supra, at 785.
We find these factors applicable to the instant inquiry of whether the International panel acted in an appellate capacity. In order to fully evaluate each of the elements, we studied the entire file in this case: a total of 95 documents, the 654 page trial transcript and trial exhibits, as well as the briefs before the appellate court.
With regard to the first factor, the relevant provisions of the constitution of LIUNA effective when plaintiff appealed the determination of the Local stated:
Section 7. If either the charging party or the accused is aggrieved, he may within thirty days from the date of notice of said action, appeal therefrom to the General Executive Board of the International Union, by filing such appeal with the General Secretary-Treasurer . . . in writing. The appeal shall clearly and specifically set forth the grounds in support of said appeal and shall contain a copy of the findings and decision, and action.
After notice of such appeal . . . the Local Union shall then submit promptly to the General Secretary Treasurer, the following:
2. Copy of the notice for a hearing
3. Record of the Trial Board ...