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
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.
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
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
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
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
The Special Master's Memorandum and Order dated October 26
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.
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 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
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 ...