United States District Court, Southern District of New York
July 13, 1990
GEORGIANNA JOHNSON, ET AL., PLAINTIFFS,
EDWARD KAY, ET AL., DEFENDANTS, LOCAL 1199, DRUG, HOSPITAL AND HEALTH CARE EMPLOYEES UNION, RWDSU, AFL-CIO, INTERVENOR.
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.
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
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
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.
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 against
members in their exercise of that vote:
Plainly, [Section 101(a)(1)] is no more than a
command that members and classes of members shall
not be discriminated against in their right to
nominate and vote.
Calhoon v. Harvey, 379 U.S. 134
, 139, 85 S.Ct. 292, 295, 13
L.Ed.2d 190 (1964).
In Gurton v. Arons, 339 F.2d 371 (2nd Cir. 1964), the Second
Circuit explicitly held that § 101(a)(1) did not guarantee a
right to vote but only "equality in voting." Id. at 374.
Accord, Myers v. United Brotherhood of Carpenters,
684 F.2d 225, 227 (2d Cir. 1982); Fritsch v. District Council No. 9,
493 F.2d 1061, 1063 (2d Cir. 1974).
Regardless of how unfair Johnson claims the package proposal
to have been, it was not violative of her rights under §
101(a)(1). All union members were given the same opportunity to
vote on that proposal. As in Calhoon v. Harvey,
[t]he complaining union members here have not been
discriminated against in any way and have been
denied no privilege or right to vote or nominate
which the union has granted to others.
379 U.S. at 139, 85 S.Ct. at 295. In Calhoon, challenges were
brought under § 101(a)(1) to a bylaw provision which deprived a
member of the right to nominate anyone for office but himself
and to a constitutional provision limiting eligibility for
union office to those who had been union members for five years
and who had satisfied certain seatime service requirements. See
also Myers, 684 F.2d at 227 (union rule barring contracting
members from voting applies to all members and hence does not
discriminate in violation of § 101(a)(1)). Similarly,
submission to all union members of the package proposal to
amend did not subject plaintiffs to the discrimination
prohibited by § 101(a)(1).*fn1
Accordingly, reargument of the package proposal is denied.
Article III Requires A Case Or Controversy
Johnson is not entitled to a declaratory judgment with
respect to any of her claims. The Article III case or
controversy requirement applies to requests for declaratory
relief. Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956,
960, 22 L.Ed.2d 113 (1968). See 28 U.S.C. § 2201. Moreover,
there must be an actual case or controversy now at the time of
the court's consideration of plaintiffs' claims, not merely one
when the claim was initiated.
The test for determining the existence of a live controversy
was stated in Maryland Casualty Co. v. Pacific Coal and Iron
Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941):
The difference between an abstract question and a
"controversy" contemplated by the Declaratory
Judgment Act is necessarily one of degree, and it
would be difficult, if it would be possible, to
fashion a precise test for determining in every
case whether there is such a controversy.
Basically, the question in each case is whether
the facts alleged, under all circumstances, show
that there is a substantial controversy, between
parties having adverse legal interests, of
sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.
See also United Public Workers v. Mitchell, 330 U.S. 75
, 89, 67
S.Ct. 556, 564, 91 L.Ed. 754 (1947) (Article III applies to
declaratory judgments). Any alleged continued threat to union
democracy is purely speculative and does not overcome the case
or controversy requirement.
Because Johnson is no longer president and the current
President Rivera does not disagree with the Executive Council
with respect to the presidential power claims, there is no
longer a controversy concerning those claims of "sufficient
immediacy and reality" to justify a declaratory judgment. The
lack of such an adversary relationship is highlighted by
Rivera's presence in this litigation as both the presidential
plaintiff and a defendant sued in his individual capacity.
Finally, Johnson cannot litigate on behalf of the Union under
a theory of associational standing when Local 1199 is a party
to the suit and the Second Circuit has recognized that
Johnson's and the Union's claims are not coextensive.
Johnson v. Kay, 860 F.2d 529, 539 (2nd Cir. 1988).
Accordingly, absent a live controversy, Johnson is not
entitled to a declaratory judgment on any of the claims she
asserts on behalf of the Union presidency. That Johnson has
been succeeded by a new Union President who neither seeks to
the presidential power claims nor disagrees with defendants on
the merits thereof, that Johnson would rely on constitutional
provisions which no longer exist (and have been replaced by new
provisions reducing the President's powers), that any asserted
interference with the President's claimed powers over
communication on the constitutional referendum and over calling
of a General Delegate Assembly meeting already has been
remedied, and that the resolution which Johnson challenges
pertain only to interpretations of constitutional provisions
which have long since been amended, singly and in combination,
serve to deprive this court of an actual case or controversy
concerning the presidential power claims.
The Executive Council Is Entitled To Dismissal Of The Action
Johnson's claims to upset the Union's referendum in which the
membership voted to amend the Constitution at the time of the
November referendum are as follows:
a. Resolutions purporting to disapprove
retroactively procedures followed in the
November 1987 referendum were properly
considered and adopted at the March 23, 1988
meeting of the Union's General Delegate Assembly
(Complaint ¶¶ 87-88);
b. The process of amending the 1985 Constitution
was not initiated in conformity with Article XII
of the Local 1199 Constitution (Complaint ¶ 69);
c. Defendants campaigned at Union expense in favor
of the proposal to amend the Constitution and
deprived plaintiff Johnson of an opportunity to
campaign at Union expense against that proposal
(Complaint ¶ 70);
d. The membership was required to vote "yes" or
"no" on a single package proposal to amend and
was not given the opportunity to vote "yes" or
"no" separately on each individual proposed
change (Complaint ¶ 71); and
e. Statements by defendants in campaign literature
to the effect that the 1985 Constitution
contained provisions violative of federal labor
laws were incorrect and misleading (Complaint
Johnson has not set forth a dispute over the material facts
nor sufficient evidence or facts to defeat Kay's summary
The Johnson Resolutions
On September 4, 1987 the Council initiated the proposal to
amend the 1985 Constitution and the October 8 opinion of this
court denied Johnson's motion to enjoin the membership
That opinion held that the proposal to amend had been
initiated in conformity with the existing Union Constitution,
that the proposal could lawfully be submitted to the membership
as a single package proposal, that the proposal need not be
voted upon by the membership at a single meeting held in one
location, and that constitutional changes reducing an officer's
powers could go into effect upon their adoption and need not
abide conclusion of that officer's term of office.
The parties thereafter agreed that the referendum should be
conducted by mail ballot and further agreed that no meeting of
the General Delegate Assembly would be held before completion
of the mail ballot referendum. On October 26, based in part
upon the aforesaid agreements, the Special Master directed that
the referendum be conducted by mail ballot and that the meeting
of the General Delegate Assembly then scheduled for November 5
be postponed until after completion of the referendum.
See Memorandum and Order of Special Master dated October 26,
1987. Later that same day, "[b]ased upon the parties' consent,"
this court adopted that Memorandum and Order in its entirety.
In November 1987 the mail ballot referendum among the members
of Local 1199 was conducted by the American Arbitration
Association ("AAA"), under the direct supervision of the
Special Master. On November 14, 1987 ballots were tabulated and
the result announced, to the effect that the proposal to amend
was adopted by majority vote of the membership. The result was
formally certified by the Special Master.
On November 18 the Special Master denied a motion by Johnson
for a stay of the effectiveness of the new Constitution pending
Johnson's challenge to the legality of its adoption. No review
of that decision by this court was sought.
After full discovery, a three-day evidentiary hearing was
conducted by the Special Master in April 1988 on Johnson's
motion to invalidate the constitutional referendum. On May 6,
1988 the Special Master granted Kay's motion for dismissal
pursuant to Fed.R.Civ.P. 41(b), holding that Johnson had shown
no right to relief. Johnson did not attempt review of that
decision by this court and the validity of the Constitutional
referendum was thereby established.
Johnson prepared a series of resolutions for consideration by
the General Delegate Assembly at the next meeting of that body.
Several of the resolutions sought to reverse interpretations of
the 1985 Constitution made by the Council in determining the
procedures for the constitutional referendum. The next meeting
of the General Delegate Assembly, after some delay and
difficulty as set forth above, occurred on March 23, 1988.
The Johnson resolutions would have construed the 1985
Constitution. The Resolution On Constitutional Amendments
subtitled "Voting on Constitutional Amendments" would have
meant that Art. XII required:
that each proposed constitutional amendment, or at
least each closely related group of amendments,
must be voted upon by the membership separately,
rather than the membership voting on all amendments
in one total package as is being proposed.
The Resolution On Constitutional Amendments subtitled
"Constitution Committee" would have barred the Council from
appointing a committee either to study proposals to amend the
constitution or to report to the Council with recommendations
for amendments despite Art. XII(a)(2) which explicitly
conferred upon the Council the authority to initiate
The Resolution On Constitutional Amendments subtitled
"Membership Meeting to Vote on Constitutional Amendments" would
have provided that a membership referendum only could have been
conducted by one method: in-person voting at a single
membership meeting held for all members of Local 1199, although
it had been the consistent, longstanding and unquestioned
practice of the Union to conduct referenda on constitutional
amendments by means other than that which the resolution
insisted was required.
The Resolution On Constitutional Amendments subtitled
"Effective Date of Officer Amendments" would have interpreted
the Constitution to preclude amendments enlarging or reducing
the powers of elected officers from becoming effective during
the term of office during which such amendments were approved
although Art. XII(d) provided that any and all amendments
"shall become effective upon [their] adoption unless otherwise
provided for." See Johnson v. Kay, 671 F. Supp. at 276-277.
The Resolution on Constitutional Amendments subtitled
"Constitutional Amendment Process and Delegate Assemblies"
would have interpreted the Constitution to forbid a referendum
on a proposal to amend the Constitution from being conducted
whenever any delegate requested submission to the delegates of
a challenge to a Council interpretation of the Constitution
which was said to bear upon the amendment process to be
followed. Such a resolution would have been inconsistent with
Art. VII, § 10(b)(6), which recognized that constitutional
interpretations by the Council would take effect before being
reviewed by the delegates.
The remaining resolutions submitted by Johnson did not
concern the referendum but, rather, were directed at other
disputes between Johnson and the Council. Unlike the
resolutions concerning provisions which allegedly pertained to
the referendum procedures, these other resolutions addressed
provisions of the 1985 Constitution which no longer existed
after the November 1987 referendum. Each so-called Resolution
President's Authority purported to interpret one or more
clauses which were materially altered by adoption of the then
The procedure for adding an item to the agenda of a meeting
of the General Delegate Assembly is set forth in detail in Art.
VII, § 12(2)(j) of the current Constitution:
A Delegate desiring to include a matter on the
agenda of the General Delegate Assembly . . .
shall forward such request in writing to the
Executive Council at least thirty (30) days prior
to such meeting. Should the Executive Council fail
or decline to do so, the Delegate may have the
matter included in the agenda by submitting a
petition to the Executive Council signed by at
least ten (10%) percent of the members in good
standing of the General Delegate Assembly. . . .
In addition, each member signing the petition must
include his/her social security number, division
Local 1199 has in excess of 2,700 delegates. See Art. VIII, §
1(c) (one delegate for each 30 members per chapter or major
fraction thereof) and the petition to add to the agenda thus
required at least 270 signatures. On or about March 4, 1988, a
member named Jerome Frazier, a political ally of Johnson,
submitted to the Council 28 sheets stapled together, each with
the identical title ("Petition") and heading: "to the Executive
Council of Local 1199: I wish to have the attached resolutions
voted upon at the November 5, 1987 General Delegate Assembly."
On the 28 sheets there appeared a total of 264 signatures.
When those signatures were examined by the Executive Council
prior to the scheduled March 23, 1988 meeting, it appeared that
12 signatures were not accompanied by a social security number,
33 were not accompanied by the division of the person whose
name appeared, and 14 were not accompanied by the institution
of the person whose name appears. There appeared to be 31
duplicate signatures. Further, a comparison of names on the
petition with the most recent computer printout of Local 1199
delegates showed that 42 names appearing on the petition were
of persons who were not in fact Local 1199 delegates.
Eight signatures were illegible. There were at least 9
questioned based upon a comparison of the petition signature
with the same person's signature which previously appeared on
another document, e.g., a Local 1199 Benefit Fund enrollment
card demonstrated an obvious difference.
According to the Council, the petition contained at least 116
signatures which were not valid.
More than five months had elapsed between the Council's
refusal to add the Johnson resolutions to the agenda and the
March 1988 meeting of the General Delegate Assembly. The
Johnson forces began collecting petition signatures shortly
after the Council's determination. Except for the month of
November 1987, delegates from each of the Local 1199 divisions
met together monthly during that time.
No material facts have been put in issue with respect to the
petition process or the exclusion of the items raised by
Johnson at the March 23 Delegate Assembly. In addition, each
sheet constituting the petition started in part: "I wish to
have the attached resolutions voted upon at the November 5,
1987 General Delegate Assembly." However, there were in fact no
resolutions attached to any of the 28 sheets constituting the
petition, nor to those sheets as stapled together.
Finally, as set forth above, no challenge was lodged with the
Special Master concerning the procedures or the outcome of the
March meeting. The Johnson resolutions could not have been
entertained properly at the General Delegate Assembly.
The Presidential Power Claims
The Presidential Power claims are either mooted by this
court's opinions or fail to present a live controversy as
The Remaining Claims
Johnson also asserted that defendant Kay failed to timely
file LM-2 Reports for Local 1199 with the U.S. Department of
Labor for the Local's fiscal years ending September 30, 1986
and September 30, 1987,
respectively. See Comp. ¶ 27. Kay is no longer
Secretary-Treasurer of Local 1199 and has no responsibility for
or connection with the preparation or filing of LM-2 Reports
and the requisite reports have now been filed. No present
relief is sought against Kay, and therefore there is at present
no case or controversy between Johnson and Kay sufficient to
warrant the court's entertaining of this issue.
Johnson also has complained with respect to three resolutions
adopted by the Union's Executive Council on November 18, 1987
relating to the Delegate Assembly meeting. See Complaint ¶¶
89-93. The resolution denominated Resolution B sought to
validate the Council's constitutional interpretations until and
unless invalidated by the General Delegate Assembly. Resolution
B was a reasonable interpretation of the current Constitution
and, in particular, of Art. VII, § 10(c)(6) thereof, by the
union body authorized to make such an interpretation.
Resolution D required a majority vote of delegates in each
Division in order to override a Council interpretation of the
Constitution was also a reasonable interpretation of the
current Constitution and, in particular, of Art. VII, §
When the Constitution intended to permit a delegate override
of a Council determination merely by the combined vote of all
Division Delegate Assemblies, rather than by the vote of each
Division Delegate Assembly, it said so. Compare Art. VII, §
10(c)(6) with Art. VII, § 10(c)(14) (Council empowered to fix
various salaries "subject to approval of the majority of the
combined vote of all the Division Delegate Assemblies").
Art. VII, § 12(1)(c), contrary to Johnson's position, has no
application where the voting requirements for a delegates'
determination are addressed specifically elsewhere in the
Constitution (as an override of a constitutional interpretation
is specifically addressed in § 109(c)(6)). Section 12(1)(c)
applies only to an adoption by the General Delegate Assembly of
a proposal on a matter not addressed specifically in the
Constitution and serves to preclude adoption of such a proposal
where a majority of the division delegate assemblies voted but
where the combined voting delegates in all divisions did not.
Resolution E resolved that the Johnson resolutions would not
be included in the agenda of a meeting of the General Delegate
Assembly. The Constitution confers upon the Council the initial
authority to determine whether a matter is to be included in
the agenda of a meeting of the General Delegate Assembly.
See Art. VII, § 12(2)(g) (Council empowered to "decline to"
include matter on agenda). Resolution E was an exercise of this
Johnson has also challenged the May 1988 meeting of the
General Delegate Assembly (Complaint ¶¶ 94-95) but has not
identified any injury from what she asserts was defendants'
wrongful conduct. No challenge has been lodged with the Special
Master with respect to action taken. No effort was made to
place an item on the agenda of that meeting through the
constitutionally authorized procedure of making such a request
in writing to the Council.
In addition, the 1985 Constitution mandated that the General
Delegate Assembly meet at least twice a year. See Art. VII, §
11(1)(b). After calling a General Delegate Assembly meeting in
the fall of 1987, which meeting was eventually held in March
1988, Johnson failed and refused to call any other such meeting
during her entire term in office. In this circumstance, the
Council was empowered to call the meetings of the General
Delegate Assembly to assure compliance with § 11(1)(b). Johnson
has also claimed lack of notice of the May 1988 meeting,
although the meeting date was noted by this court in its
opinion dated February 4, 1988. In any case, there is no notice
requirement imposed by the Constitution and no injury alleged
to have resulted from any lack of notice.
It is also alleged that defendants "schemed and planned" to
have delegates line up at microphones at the beginning of the
August 1988 meeting of the Guild and Hospital Division Delegate
Assemblies, "for the purpose of" preventing plaintiffs
from speaking at the meetings. See Complaint ¶ 96.
However, Johnson does not allege that the objective was
accomplished or that any of the plaintiffs sought to address
the delegates at these meetings but was actually prevented from
doing so. Without such allegations and evidence tending to
support it on this motion for summary judgment, there could be
no interference with any plaintiff's rights under the LMRDA or
Union Constitution nor other legally cognizable injury to any
Similarly, the allegations that defendants "schemed and
plotted" to disrupt September 1987 meetings of Division
Delegate Assemblies (Complaint ¶ 33) and "planned and arranged"
for persons not entitled to attend Division Delegate Assemblies
to attend those meetings "for the purpose of" disruption
(Complaint ¶ 34) must likewise fail for lack of injury and
In Complaint ¶ 30, it is alleged that at a Council meeting
one defendant, Yearwood, "attempted to assault Johnson" and
that he "assaulted" one Dave White. There is no allegation that
Yearwood actually assaulted Johnson nor that he actually
interfered in any way with her exercise of whatever rights she
may have possessed. As to the alleged assault of White, White
is not a party here, and plaintiffs lack standing to litigate
an alleged denial of a third party's rights. McGowan v.
Maryland, 366 U.S. 420, 429-30, 81 S.Ct. 1101, 1106-07, 6
L.Ed.2d 393 (1961).
In Complaint ¶ 32, it is alleged that Union staff "glared at
Johnson in a menacing manner" at an Executive Council meeting
in September 1987. It is further alleged that "this incident
was planned and directed by Kay and the other defendants."
In Complaint ¶ 37, it is alleged that at a September 8, 1987
meeting of the Hospital Division Delegate Assembly, a
defendant, Jarrett, "grabbed the microphone" from one Pat
Bernitt, who took the microphone back from Jarrett and then
spoke to those present at the meeting about Jarrett. There is
no allegation of injury here even to Bernitt, or to any
In Complaint ¶ 40, it is alleged that defendant Jarrett
"approached" plaintiff Johnson while the latter was speaking
(apparently at a meeting of the guild Division Delegate
Assembly). There is no allegation that Jarrett struck Johnson
and no allegation he interfered with Johnson speaking. There is
no allegation that Johnson was injured in any way, physically
The Complaint in ¶ 41 alleges that defendant Yearwood
"charged at" a delegate, one Akil Al-Junde, who "stood his
ground" and that Yearwood "moved menacingly" toward Al-Junde.
Whatever else these claims of physical violence or
inappropriate conduct may constitute in the context of union
controversy, they fail to state a LMRDA violation.
Finally, in Complaint ¶ 68, Johnson alleges that she was
"physically assaulted without cause or provocation by defendant
Kay, and suffered serious injuries thereby."
In December 1987, prior to adding this claim to her complaint
herein, Johnson filed in a New York Supreme Court action a
counterclaim against Kay for assault and battery based upon the
same factual allegations as are made here. Edward Kay v.
Georgianna Johnson, No. 87-25879 (New York County). In November
1988, Johnson added this incident to her charges in the instant
case. The state court action, in which Johnson is represented
by one of her lawyers in this case, remains pending.
Although the parties vigorously dispute the particulars of
what happened on October 8, 1987, two related circumstances
render Johnson's LMRDA claim appropriate for disposition by
summary judgment. The first is that plaintiff Johnson, in her
sworn deposition testimony, described her encounter with Kay at
the October 8 meeting of the Guild Delegate Assembly as an
"accident." The second is that plaintiff seeks to recover from
Kay for this accident solely in his individual capacity and not
in his official capacity.
A union officer may, in appropriate circumstances, be sued in
his/her individual capacity for damages for acts undertaken
in an official capacity. However, a different standard governs
an officer's liability for damages in his/her individual
capacity then governs that officer's liability for damages for
the same conduct in his/her official capacity.
Where an officer acts in good faith, she may not be held
accountable in damages in her individual capacity. Keene v.
International Union of Operating Engs., 569 F.2d 1375, 1381,
fn. 7 (5th Cir. 1978); Waring v. International Longshoremen's
Ass'n Local 1414, 665 F. Supp. 1576, 1581-82 (S.D.Ga. 1989);
White v. King, 319 F. Supp. 122, 126 (E.D.La. 1970). The reason
is obvious: a rule which would render an officer individually
liable in damages for conduct undertaken in good faith would
deter many qualified persons from seeking union office, for
fear of exposure to personal financial liability for conduct
which the person did not intend to be offensive or violative of
a member's legal rights.
Defendants are entitled to summary judgment.
Johnson Is Entitled To Legal Fees
Having prevailed with respect to her application for
preliminary injunction Johnson is entitled to legal fees,
contrary to the usual American rule, an entitlement somewhat
perplexed once again by the present status of the parties.
On September 18, 1989, former counsel to Johnson filed a
motion for leave to withdraw subject to the right to file the
instant fee application.
An order entered on September 25, 1989 reads as follows:
On the basis of Counsel for Plaintiffs' Motion
to Withdraw and other pleadings and arguments
submitted herein it is hereby
ORDERED, that the firm of Bernstein & Lipsett is
hereby granted leave to withdraw herein subject to
its right if any to seek an award of attorneys'
fees and expenses herein.
The words "if any" were inserted at the September 25, 1989
hearing to preserve whatever claims Johnson might advance for
fees charged by her former counsel. Counsel for Johnson
represented plaintiffs and withdrew subject to any right to
seek fees. Present and substituted counsel for Johnson, in a
notice of adoption dated May 1, 1990, has asserted her
application in this regard, satisfying the standing
requirements set forth in Hall v. Cole, 412 U.S. 1, 2, 5, 93
S.Ct. 1943, 1944, 1946, 36 L.Ed.2d 702 (1973).
Johnson's former counsel seeks $572,447.25 and expenses
Standards For Fees
Attorneys' fees and expenses may be awarded in actions
arising under Title I of LMRDA, under Hall, affirming the
decision of the Court of Appeals in Cole v. Hall, 462 F.2d 777
(2d Cir. 1972). The reasoning has been followed in Rosario v.
Amalgamated Ladies Garment Cutters' Union, Local 10,
I.L.G.W.U., 605 F.2d 1228, 1245-46 (1979), cert. denied,
446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980); Zamora v.
Local 11, Hotel Employees & Restaurant Employees, 817 F.2d 566,
571 (9th Cir. 1987); and Pawlak v. Greenawalt, 713 F.2d 972,
975-76 (3d Cir. 1983).
Hall has also been extended to cases under Title IV, LMRDA,
in which union members have been awarded attorney's fees for
their participation as intervenors in suits brought by the
Secretary of Labor to set aside union elections. See Donovan v.
CSEA, Local 1000, 784 F.2d 98, 104 (2d Cir. 1986), cert.
denied, 479 U.S. 817, 107 S.Ct. 74, 93 L.Ed.2d 30 (1986).
In the absence of final adjudication, attorneys' fees may
still be awarded. In Yablonski v. United Mine Workers of
America, 466 F.2d 424, 431 (D.C. Cir. 1972), cert. denied,
412 U.S. 918, 93 S.Ct. 2729, 37 L.Ed.2d 144 (1973), the Court of
It is suggested that it is unfair to impose
attorney's fees in cases which have never reached
final adjudication on the merits. The Supreme
Court in Mills, [supra], however, noted that the
relevant inquiry is not into the technical posture
of the litigation, but whether it "has conferred a
substantial benefit on the
members of an ascertainable class." 396 U.S. at
393-94, 90 S.Ct. at 626.
It is not decisive in this instance that three
of the suits never got beyond the issuance of
preliminary injunctions, and the fourth failed
even to do that. The fact is that in the former
three cases the preliminary injunction was the
critical step and procured all the relief
required; and in the fourth case the very filing
of the complaint and the holding of a hearing on
the motion for a preliminary injunction effected a
change of position by the defendants which
warranted the court's conclusion that no mandatory
order was necessary to achieve the plaintiff's
aims. As all lawyers know, a lawsuit does not
always have to go to final adjudication on the
merits in order to be effective. Assuming the
effectiveness in terms of practical results, the
litigating stage attained is relevant only to the
amount of the fees to be allowed and not to the
issue of whether they should be awarded at all.
See Peacock v. Wurf, 475 F. Supp. 65, 67 (S.D.N.Y. 1979).
Recently, the Honorable Vincent L. Broderick, in an
unreported decision, Goldberg v. Hall, 87 Civ. 8025, 1988 WL
215393 (S.D.N.Y. 1988), awarded fees in an LMRDA Title I case
even though "no ruling whatsoever had been made by the court .
. ." (Opinion, p. 9), on the ground that "[w]here a LMRDA
action results in a common benefit for union members even
though a ruling was not entered, attorney's fees may be
awarded." (Opinion, pp. 9-10).
The fee application here is strikingly similar to that filed
and granted in Bakery and Confectionery Workers v. Ratner,
335 F.2d 691 (D.C. 1964). There, an attorney who had undertaken
litigation on behalf of union members designed to correct
financial and other malpractice by union officers sought (1)
leave to withdraw as counsel; (2) the appointment of
"independent counsel" to continue to prosecute the action; and
(3) attorney's fees. The district court granted counsel's
motion to withdraw but denied the motion for appointment of
"independent counsel . . . only upon the representation by the
appellant [union's] counsel `that the Union intend[ed] to
employ independent counsel to pursue the accounting action'."
Finally, the district court granted counsel's fee application
against "the contracting parties who entered into the fee
agreement, . . . the class represented by [the] named
plaintiffs . . . [a]nd third . . . against the funds of the
Union." 335 F.2d at 695.
On appeal by the Union, the Court of Appeals upheld the award
Here almost from the outset, the International
was a party. At no time did it controvert the
facts as attested in the appellee's affidavit or
as perceived and expressed by the District Judge
in charge throughout. The International had
received the benefits form the appellee's services
in various respects including those derived from
the class action, and thereafter had taken over
prosecution of the litigation. The International
and its membership had notice of all proceedings
and had participated therein. For the reasons but
upon the basis previously treated, there remains
only the matter of ascertainment of the value of
the benefits to the International and its
membership to predicate whatever award the
District Court equitably shall determine to be
Further, Ratner, was cited approvingly in Mills v. Electric
Auto-Lite Co., 396 U.S. 375, 391, 90 S.Ct. 616, 625, 24 L.Ed.2d
593 (1970), in which the Supreme Court supported an interim
award of legal fees to plaintiff corporate shareholders who had
substantially benefitted a corporation through their lawsuit.
See also Gluck v. Bowen, 676 F. Supp. 165 (N.D.Ill. 1987)
(counsel for plaintiff withdrew before plaintiff ultimately
prevailed in a social security case, sought fees, and
Here the Union was made a party mid-case by order of the
Court of Appeals. Pursuant to the Court of Appeals' mandate the
district court was directed to "assure the adequacy and
independence of the union's representation", an event which
materially affected any benefit to the Union
attributable to the efforts of Johnson's counsel.
Johnson urges consideration of authorities in Title I LMRDA
action where fees have been awarded even where "no ruling
whatsoever [has] been made by the Court . . . where a LMRDA
action results in a common benefit for union members. . . ."
For as put by Judge Tuttle, sitting by designation in
Reiser v. Del Monte Properties Co., 605 F.2d 1135, 1140, n. 4
(9th Cir. 1979):
It is not necessary to an award of attorneys'
fees that a suit be litigated on the merits.
Kopet v. Esquire Realty Co., 523 F.2d 1005, 1008
(2d Cir. 1975); Yablonski v. United Mine Workers,
151 U.S.App.D.C. 253, 260, 466 F.2d 424, 431 (D.C.
Cir. 1972), cert. denied, 412 U.S. 918, 93 S.Ct.
2729, 37 L.Ed.2d 144 (1973); Kahan v. Rosenstiel,
424 F.2d 161, 167 (3d Cir.), cert. denied,
398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970); Globus,
Inc. v. Jaroff, 279 F. Supp. 807, 809 (S.D.N Y
Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76
L.Ed.2d 40 (1983), cited by counsel, a civil rights action,
involved the award of fees under 42 U.S.C. § 1988. However, in
contrast to the situation which prevails under Title I, LMRDA
described above, § 1988 expressly declares that in a civil
rights action a court may award fees only to a "prevailing
The Council also correctly cites Rosario v. Amalgamated
Ladies Garment Cutters Union, Local 10, 749 F.2d 1000 (2d Cir.
1984), for the proposition that Hensley is applicable to LMRDA
actions and that under Title I, unsuccessful claims that are
"unrelated to those benefitting [the union's] members, such as
the plaintiffs' state law claims against [defendant] Dolgen for
malicious prosecution and false arrest," may be distinguished
from claims that are "different from the issues on which
plaintiffs prevailed," but are "not so discrete as to be easily
separable . . ." 749 F.2d at 1007.
Here Johnson, who originally went to court on September 8,
1987, succeeded in obtaining a settlement with defendants of
her claims for certain declared rights of equality, and free
speech and assembly.
The injunctions sought by Johnson provided for communication
with the 80,000 members of the union by mail at union expense
as well as the convening of a General Delegate Assembly on
March 23, 1988. Such relief constitutes "prevailing" within the
meaning of § 1988.
In addition, though not prevailing in terms of her particular
interests, Johnson's attorneys represented in her interests as
president throughout in the proceedings before the Special
Master which benefitted the union and its members and indeed
permitted the union's affairs to go forward in face of the
paralyzing conflict between the President and the Council.
However, even these determinations do not yet assure Johnson
of the success of her application for fees in view of her
counsel's failure to maintain complete contemporaneous time
In NYSARC v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983), the
Second Circuit set forth rules that it would no longer accept
reconstructed time records in support of fee applications,
We think it appropriate to convert our previously
expressed preference for contemporaneous time
records [citation omitted], into a mandatory
requirement, as other Circuits have done, see
National Ass'n of Concerned Veterans v. Secretary
of Defense, 675 F.2d 1319 (D.C. Cir. 1982).
Id. The Court further stated that the "contemporaneous time
records must specify for each attorney, the date, the hours
expended, and the nature of the work done." Id. at 1148.
However, in Carrero v. New York City Hous. Auth., 685 F. Supp. 904
(S.D.N.Y. 1988), an award of attorney's fees under
42 U.S.C. § 1988 was granted in the context of a civil rights
action based upon reconstructed rather than contemporaneous
In Carrero, at the trial level this court stated as follows
with regard to those fee issues:
Defendants contend that attorney's fees should
be reduced because counsel failed to adequately
describe the nature of the work performed in time
records and because counsel failed to discount
billing for certain activities such as filing and
In this Circuit, providing contemporaneous time
records is a prerequisite to receiving attorneys'
fees. New York State Association for Retarded
Children, supra, 711 F.2d at 1147. The reasoning
for this rule is that courts should not be faced
with an impossible chore when making fee
determinations, and that lawyers should not be
required to expend even more hours reconstructing
the past in assembling a fee application. Id. at
Where the attorneys have provided the court with
affidavits that have been reconstructed from
contemporaneous records and that set forth all
charges with specificity, fees have not been
denied. See Lenihan [v. City of New York], supra,
640 F. Supp.  824 (S.D.N.Y. 1986). Such was the
case here. Sussman and Levy have, for the most
part, set forth the date, task and time spent for
all charges in their affidavits, and although at
times Sussman fails to provide the court with the
reason for a phone conversation with co-counsel,
Mr. Levy's records adequately reflect the reason.
However, penalties have been imposed for failure
to provide the actual records. Carrero's counsel
contends that contemporaneous time records were
offered to the defense and were refused.
Nevertheless, the burden is on the party seeking
fees to present such records to the court, whether
or not defendants have requested production. Since
no such records were presented here, no
remuneration will be granted for hours spent on
the fee application. Lewis v. Coughlin,
801 F.2d 570, 577 (2d Cir. 1986).
Additionally, inconsistencies in the attorney's
records will be cut, for example telephone calls
one claims to have made to the other that do not
appear in the other's records.
Although some courts have permitted only reduced
rates for some activities, such as travel time and
the filing and service of papers, such a reduction
is not mandatory. See Lenihan, supra. In view of
the fact that a proportionately small amount of
time in this case was devoted to such activity,
fees will not be reduced.
685 F. Supp. at 908-09 (footnote omitted).
The Court of Appeals found no error with this approach,
Carrero v. New York City Hous. Auth., 890 F.2d 569-582 (2d Cir.
1989). Here again the reconstructed timesheets have been
submitted to clarify the contemporaneous timesheets. In
addition, in recognition of deficiencies in their time records
and the substantial amount of travel time involved from their
office in Washington, counsel voluntarily proposed a 20%,
reduction of the total amount sought for fees in an effort to
avoid major litigation over fees.
Under all these circumstances, counsel for Johnson is
entitled to fees incurred in connection with the entry of those
activities reflecting a benefit to the Union, specifically the
preliminary injunctions and the appearances before the Special
Master, excluding travel disbursements, and reducing this
amount by 20%. No fee will be awarded in connection with the
Based upon the experience of the attorneys involved, their
billing rates are appropriate. Hopefully the parties can
resolve the amounts at issue based upon these determinations.
If not, a further hearing on motion may be required and counsel
would be required to set forth each entry that related to the
claims on which Johnson has prevailed.
Sanctions Are Denied
The posture of this litigation requires that all sanctions be
denied. Whatever has been done has been undertaken by all the
parties in good faith. Continued litigation will serve no
therapeutic purpose for the former president, the present
former members of the Executive Council, the union or their
Judgment will be entered on notice in accordance with this
It is so ordered.