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July 13, 1990


The opinion of the court was delivered by: Sweet, District Judge.


Plaintiff Georgianna Johnson ("Johnson") and certain other members of Local 1199, Drug, Hospital and Health Care Employees Union RWDSU AFL-CIO (the "Union" or "1199") (collectively "Johnson") have moved for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The defendants Edward Kay and certain officers of the Union and members of the Executive Council of the Union (collectively the "Executive Council") have also moved for summary judgment dismissing this action. In addition, Johnson has moved for an award of counsel fees and the Executive Council has moved for sanctions. It is hoped that the resolution of the pending motions will terminate this bitter, intra-union dispute, the significance of which is now principally a matter of history.

Kay's motion for summary judgment is granted, Johnson's motion for partial summary judgment is denied, the action is dismissed, counsel fees are awarded, and sanctions are denied.

The Parties And Their Present Posture

Upon remand pursuant to the direction of the Court of Appeals, the Union was made a party to this proceeding and on August 9, 1989 independent counsel for the Union was appointed. The Union is the largest local in the United States, some 80,000 members strong. Its officers perform significant roles in the Union and in political life in the community and state elections. Its economic power is recognized and prized. Its recent history has been marked by intense internal conflict.

Georgianna Johnson, a member of 1199, started her career as a union official by running as a part of a slate in 1986 to overturn Doris Turner, the then president of 1199 in an election supervised by the Department of Labor. She was elected as were the individual defendants who became officers of 1199 and members of the Executive Council of the Union.

By the summer of 1987, Johnson and the Executive Council had developed different positions on a variety of issues affecting 1199. The Executive Council on September 4, 1987 proposed amending the Constitution which had been adopted in 1985, in part in Johnson's view, to restrict her powers. Johnson initiated this action on September 8 to preserve her rights in connection with the Executive Council's procedures.

As more fully described below, the Constitution was amended by referendum and thus adopted as amended on November 14, 1987. Johnson sought to amend the Constitution through the action of the General Delegate Assembly which was held on March 23, 1988, to restore certain of her powers. According to the Executive Council, these amendments were not properly before the Assembly and were not adopted.

In April 1989 in a regularly scheduled election of Union officers, Georgianna Johnson was defeated in her bid for reelection as Union President, by a vote of 19,747 for Dennis Rivera to 2,026 for Johnson. Defendant Kay was elected an Executive Vice-President as were defendants Marshall Garcia, Jarrett, Hughley, Abelson and Aida Garcia. Defendant Grant-Gutierrez was elected Vice President for Organizing. Defendants Yearwood, Doyle and Mayfield were each elected Area Vice-Presidents.

Each of the officers was sworn into office on or about May 1, 1989, by Lenore Miller, President of the Retail, Wholesale & Department Store Union, AFL-CIO, the international labor union with which Local 1199 is affiliated.

On June 14, 1989, Johnson moved from Brooklyn, New York to Philadelphia, Pennsylvania, where she now resides.

As President of 1199 Dennis Rivera does not wish to pursue any of the claims in this case which involve an assertion that one or more defendants acted to interfere with the President's exercise of presidential rights, powers or authority under the 1199 Constitution or otherwise acted unlawfully vis-a-vis the President as President.

Prior Proceedings

This action was commenced on September 7, 1987 and by order to show cause Johnson sought to enforce a referendum seeking to amend the Constitution of the Union.

By a decision dated October 8, 1987, the Union was directed to pay the expense of two mailings containing Johnson's objections to the proposal to amend. Johnson v. Kay, 671 F. Supp. 268 (S.D.N.Y. 1987).

A Special Master, the Honorable Eric Schmertz, then Dean of Hofstra Law School, was appointed to supervise the referendum and discovery.

On October 26, 1987, the Special Master signed a Memorandum and Order summarizing the discussions of the parties and the agreements reached and "based upon the consent of all parties," directing that (a) the referendum be conducted by mail ballot under his supervision and (b) directing that the meeting scheduled by Johnson for November 5 be postponed and that no Delegate Assembly meeting be held prior to November 23, 1987. Later that same day, "[b]ased upon the parties' consent," this court adopted the Memorandum and Order of the Special Master "in its entirety."

The mail ballot referendum was conducted by the American Arbitration Association and completed on November 14, 1987.

Johnson sought a stay of the effectiveness of the newly adopted Constitution pending a ruling on a challenge by Johnson to the legality of its adoption which was denied by the Special Master on November 18. No review of that ruling was sought.

An evidentiary hearing on Johnson's application to nullify the result of the referendum was conducted by the Special Master over three days in April 1988. No review of that ruling was sought.

By service of a summons in December 1987, Johnson also sought to bring criminal charges against Kay for assault and harassment based upon the same alleged incident on October 8, 1987. The District Attorney of New York County assigned three Assistant District Attorneys to an investigation of Johnson's allegations. After completion of that investigation, the District Attorney moved to dismiss the charges against Kay for lack of evidence. That motion was granted on August 10, 1988. People v. Edward Kay, Docket No. 7N119658 (New York County).

On February 4, 1988 an order was entered granting preliminary injunctive relief to Johnson relating to the adjourned General Delegates Assembly and directing that all disputes relating to that meeting be heard by the Special Master.

On June 16, 1988 a motion by defendants to dismiss the complaint for lack of jurisdiction was denied and on October 25, the Court of Appeals affirmed the 1987 injunctions and directed that the Union be made a party and represented by special counsel.

The instant motions were initiated in January 1990 and adjourned by agreement of the parties. The summary judgment motions were heard and submitted on February 9, 1990 and the counsel fees and sanctions motions were heard and submitted on April 20, 1990.

The Absence Of Factual Dispute

Given the extensive litigation to date and the application of res judicata and estoppel, see Gelb v. Royal Globe, 798 F.2d 38, 44 (2d Cir. 1986), certain facts sufficient to the determinations which follow have been established by the record to date and remain undisturbed by the evidence presented on these particular motions.

Standards For Summary Judgment

To grant summary judgment the court must determine that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court's responsibility is not to resolve disputed issues of fact, Donahue v. Windsor Lock Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987), but to determine whether there are any factual issues to be tried, while resolving ambiguities and drawing inferences against the moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (citing Adickes v. S.H. Kress & Co., Inc., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)). Summary judgment enables the court to dispose of meritless claims before becoming entrenched in a costly trial. Donahue, 834 F.2d at 58, (citing Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)). Johnson Is Not Entitled To Partial Summary Judgment

Johnson seeks partial summary judgment on four claims:

  a. Kay allegedly interfered with Johnson's efforts
    to communicate with Local 1199 members
    concerning her opposition to the proposal to
    amend the Union's 1985 Constitution and thereby
    violated the Union's Constitution and Sections
    101(a)(1) and 101(a)(2) of the Labor-Management
    Reporting & Disclosure Act of 1959 ("LMRDA"),
    Title 29 U.S.C. § 411(a)(1) and 411(a)(2);
  b. Kay allegedly interfered with Johnson's effort
    to call a meeting of the Union's General
    Delegate Assembly and thereby violated the
    Union's Constitution and LMRDA Sections
    101(a)(1) and 101(a)(2);
  c. Kay usurped Johnson's powers under the Union
    Constitution by adopting eight resolutions dated
    September 10, 1987; and
  d. Kay caused the Union's headquarters to be
    closed on Saturday, September 19, 1987, and
    thereby interfered with Johnson's powers under
    the Local 1199 Constitution and her rights under
    LMRDA Section 101(a)(2).

Johnson also seeks reargument of the submission to Local 1199's membership of a package proposal to amend the Union's Constitution violated LMRDA Section 101(a)(1).

Three of the five claims in Johnson's motion, two of which are moot, have been disposed of by the court. The court has already remedied what it believed was an improper interference with Johnson's right to communicate to the membership her opposition to the proposal to amend the Constitution. In its October 8, 1987 opinion, Johnson v. Kay, 671 F. Supp. 268, 272-73 (S.D.N.Y. 1987), the court found that by "virtually monopoliz[ing] the means of union communication" the defendants had violated the obligation imposed by the Constitution on President Johnson to report to the membership and the right conferred on the general membership by the Constitution to "hear adequate debate," 671 F. Supp. 268, 277.

In addition, the October 8, 1987 opinion stated that ". . . the issue goes beyond the obligations imposed by the LMRDA to the contractual rights between Local 1199's President and the Executive Council," and determined that "Johnson's contractual right to report in a meaningful way has been infringed" and that the defendants had violated the general membership's contractual right to hear acts which also infringed the equal rights and privileges of the plaintiffs and other members of Local 1199 to vote in the Constitutional referendum, in violation of LMRDA § 101(a)(1), 29 U.S.C. § 411(a)(1) and the rights of plaintiff and other members of Local 1199 to express views or opinions, in violation of LMRDA § 101(a)(2), 29 U.S.C. § 411(a)(2).

Johnson was provided with a "meaningful opportunity to put forth [her] position [ ]" before the referendum on the proposal to amend was conducted and provided "a chance to speak at approximately the same volume" on the proposal as the Union's Executive Council. Johnson v. Kay, 671 F. Supp. 268, 279 (S.D.N.Y. 1987). Prior to the balloting on the proposal, Johnson mailed to the membership at Union expense two leaflets advocating rejection thereof, one 16 pages long and the second 8 pages long.

By memorandum dated September 17, 1987, Johnson scheduled a meeting of the General Delegate Assembly for November 5, 1987. Johnson v. Kay, 671 F. Supp. at 272. In accordance with the opinion of October 8, 1987, a preliminary injunction was entered directing that the voting at the General Delegate Assembly proceed.

The Special Master's Memorandum and Order dated October 26 provided:

    ORDERED, that the General Delegate Assembly
  currently scheduled for November 5, 1987, shall be
  postponed and that Local 1199 shall not hold or
  conduct any General Delegate Assembly or any

  Division Delegate Assembly until no earlier than
  November 24, 1987.

The court's endorsement of this Memorandum and Order, also dated October 26, 1987, provided:

    Based upon the parties' consent, the Memorandum
  and order of the Special Master, dated October 26,
  1987, is hereby adopted in its entirety by the
  Court subject to leave to apply to the Court for a
  modification based upon a change of circumstances.

The meeting was rescheduled for November 24, 1987, and Johnson sought to proceed with the meeting, only to have it cancelled by the Executive Council. After the Executive Council refused to pay for the hall, the Special Master directed such payment and an injunction was issued on February 4, 1988 on a finding of irreparable injury, stating:

    In sum, Johnson has asserted irreparable injury.
  Moreover, the LMRDA prohibits one union faction
  from infringing on the free speech rights of
  another, hereby disallowing Johnson the right and
  the duty she has to communicate with the delegates
  representing the entire union membership.
  [citation omitted].

By seeking to thwart Johnson's attempts to convene a General Delegate Assembly and to communicate with the Union's membership, defendants violated LMRDS Secs. 101(a)(1) and (2), 29 U.S.C. § 411(a)(1) and (2) and breached Article VII of the Local 1199 Constitution.

The court already has remedied the interference with Johnson's attempt to call a meeting of the General Delegate Assembly. By order dated February 10, 1988, it required the Union to pay for the rental of a theatre for such a meeting, which meeting was then held at the place and on the date set by Johnson.

Johnson also places before the court again that the Executive Council violated the rights of union members to a meaningful vote in violation of § 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1), by presenting all of the proposed amendments to the Union Constitution in a single block.

At the time of the October 8, 1987 opinion this position was considered and rejected. No additional facts or authorities have been presented to require a change in the earlier determination. Johnson again relies upon Sertic v. Cuyahoga, Lake, Geauga & Ashtabula Counties, C.D.C., 423 F.2d 515 (6th Cir. 1970).

However, Sertic was a challenge to a referendum on a proposed dues increase brought solely under LMRDA § 101(a)(3). By contrast, the referendum challenged in the present case did not involve a proposal to increase members' dues and the claim is brought solely under § 101(a)(1).

Section 101(a)(3), 29 U.S.C. § 411(a)(3), affirmatively created and guaranteed the right of members of a local union to vote on a proposed dues increase. The Sertic Court sought to maintain the integrity of this federal right, by holding that a vote on a dues increase should not be influenced by a member's view on some arguably unrelated matter.

In contrast to § 101(a)(3), § 101(a)(1) provides that where members elsewhere have been given the right to vote on an issue, the union may not unreasonably discriminate ...

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