was presented to the Local membership at a meeting on November 9, 1988,
and was approved by the members by a margin of about 70 votes out of a
total of over 1400 votes cast. Following this vote, Helmer appealed to
the National Union, which declined to hear his case.
Having been discharged form his union employment, Helmer next sought to
return to the position which he had held at Con Ed prior to becoming an
officer of the Local. As discussed more fully in Helmer II, this request
was denied because he was held to have retired from Con Ed in 1979 when
he cashed out his pension with the company. Because Helmer was therefore
not employed by either the Local or the utility, the Local determined
that Helmer was no longer within its jurisdiction and could no longer be
a member of the union. Accordingly, Helmer's membership rights in the
Local were terminated.
1. The Standard for Summary Judgment.
Summary judgment is appropriate where no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law.
Fed.R.Civ, P. 56. In deciding a motion for summary judgment, the court is
not expected to resolve disputed issues of fact, Donahue v. Windsor Locks
Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir. 1987), but to
determine whether there are any factual issues which require a trial.
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
585-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The non-moving
party "must do more than simply show that there is some metaphysical doubt
as to the material facts." Id. at 586, 106 S.Ct. at 1356. If the opponent
succeeds in establishing "uncertainty as to the true state of [even one]
material fact, the procedural weapon of summary judgment is
inappropriate." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438,
445 (2d Cir. 1980).
Nonetheless, summary judgment should be granted where no reasonable
trier of fact could find in favor of the non-moving party. H.L. Hayden
Co. of New York v. Siemens Medical Systems, Inc., 879 F.2d 1005, 1011 (2d
Cir. 1989). "Summary judgment is appropriate when, after drawing all
reasonable inferences in favor of the party against whom summary judgment
is sought, no reasonable trier of fact could find in favor of the
nonmoving party." Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d
For the sake of clarity, the following analysis will deal with each of
Helmer's causes of action grouped according to the underlying claim. For
those causes of action which appear in more than one of these groups, the
analyses represent alternative grounds for granting summary judgment in
the defendants' favor.
2. The Defendants' Activities Did Not Constitute Suppression of Dissent.
The Second, Eleventh, Eighteenth and Thirty-Sixth causes of action
assert that the defendants violated § 101(a)(2) of the LMRDA,
29 U.S.C. § 411 (a)(2), in that they acted with the purpose of
suppressing dissent among the members of the Local. A claim of this type
is judged under the standard of Finnegan v. Leu, 456 U.S. 431, 102 S.Ct.
1867, 72 L.Ed.2d 239 (1982), as refined by Cotter v. Owens, 753 F.2d 223
(2d Cir. 1985). Finnegan established the fundamental principle that
disciplinary action against union officials or employees in their
capacity as officials or employees, rather than as members, does not
necessarily constitute a violation of the LMRDA. 456 U.S. at 441-42, 102
S.Ct. at 1873. In Cotter, the Second Circuit recognized a limitation on
this broad grant of discretion where the challenged action was "part of a
series of oppressive acts by the union leadership that directly
threaten[ed] the freedom of members to speak out. In that unusual
circumstance, which would require `clear and convincing proof,'" relief
under the LMRDA might be available. 753 F.2d at 229 (quoting Newman v.
Local 1101, CWA, 570 F.2d 439, 445 (2d Cir. 1978)).
Helmer has not presented evidence to establish that the defendants'
acts were intended to suppress dissent among the membership of the
Local. There was no
impending political campaign at the time that Helmer was removed, and he
was not the leader of any identifiable dissident faction among the
membership. Indeed, his recent leadership of an unsuccessful effort to
oust Cotter from office — supported by an overwhelming majority of
the Executive Board but soundly defeated by the members — suggests
that the action against him was, if anything, no more than "an isolated
act of retaliation for political disloyalty," Cotter, 753 F.2d at 230,
rather than "part of a `purposeful and deliberate attempt to suppress
dissent within the union.'" Id. (quoting Schonfeld v. Penza, 477 F.2d 899,
904 (2d Cir. 1973)).
Therefore, summary judgment in the defendants' favor is granted on the
Second, Eleventh, Eighteenth, and Thirty-Sixth causes of action.
3. The Defendants Did Not Violate Helmer's Free Speech Rights.
Helmer's First, Seventh, Seventeenth, Twenty-Third, Twenty-Eighth, and
Thirty-Second*fn2 causes of action assert that the defendants violated
his right to free speech under § 101(a)(2) by retaliating against
him both for cooperating with the corruption investigation and for his
filing of charges against Cotter. These claims are based primarily on
Sheet Metal Workers' International Association v, Lynn, 488 U.S. 347, 109
S.Ct. 639, 102 L.Ed.2d 700 (1989), in which the Supreme Court found an
exception to Finnegan where an elected official of a local union was
discharged in retaliation for having campaigned against a proposition
supported by the local's leaders,
The parties here have spent a good deal of time and energy arguing
whether Helmer was an elected or appointed official of the Local, and
thus whether or not the protection of Sheet Metal Workers' is available
to him. On this issue, Helmer has the better of the argument. Although it
is true that he attained his position by appointment, when Joy moved to
the presidency of the National Union, the question of whether an office
is elective or appointive must depend on the office itself, not the
individual occupying that office. The defendants do not dispute that the
usual method of selecting a Business Manager is by an election, or that
the usual method of removing a Business Manager is also by election. The
office must therefore be considered to be elective, and Helmer must be
deemed to have been an elected official at the time of the events in
question. Unfortunately, this conclusion does not help Helmer much,
because he has not adduced evidence to prove that the defendants'
behavior was retaliatory as required by Sheet Metal Workers'.
Helmer's first claim is that he was retaliated against for cooperating
with the corruption investigation. However, it is not even clear whether
his cooperation had begun prior to the time the charges were filed
against him. Although he has submitted an affidavit stating that he first
contacted the authorities several weeks before the charges were filed on
October 3, 1988, this testimony contradicts his own earlier deposition
testimony that he first became involved in the investigation in early
October. Furthermore, regardless of when the actual cooperation began,
Helmer has offered no evidence that any of the defendants were aware of
his involvement. Of course, they could not have retaliated against him
for activities of which they were not even aware.
More importantly, Helmer's communications with the authorities are not
the type of expression protected by the LMRDA. The free speech provisions
of that act are designed to protect speech in the context of the union
democratic process, i.e. political speech primarily addressed to other
union members, rather than free speech at large. "In providing such
protection, Congress sought to further the basic objective of the LMRDA:
`ensuring that unions [are] democratically governed and responsive to the
will of their memberships.'" Sheet Metal Workers', 488 U.S. at 352, 109
S.Ct. at 643 (quoting Finnegan, 456 U.S. at 436, 102 S.Ct. at 1870).
Helmer's claim is not that he was punished for relating his views on
corruption to the members, but rather for cooperating with the
authorities. No evidence has been presented here that he ever voiced his
belief in the corruption of the Local's leaders to his fellow members.
Particularly in light of the fact that the investigation ultimately went
nowhere — suggesting that there was little for the union management
to fear in the first place — Helmer's claim of retaliation for his
cooperation with the authorities cannot stand.
As for the claim that his removal from office was retaliation for his
own campaign against Cotter, Helmer's argument relies primarily on the
fact that one of the charges against him — the fifth one listed
above — was explicitly based on his having brought charges against
Cotter. Assuming for the present purposes that § 101(a)(2) protects
a union member's right to bring disciplinary charges against a fellow
member,*fn3 this particular charge against Helmer was based not simply
on his filing of charges as a union member, but rather on his actions as
an officer attacking a fellow officer. Helmer's charges against Cotter
not only divided the Executive Board, but also led the members to rebel
against the Board's recommendation that Cotter be removed, further
exacerbating the divisive conditions in the Local. While Helmer is
correct that his office did not grant him any special authority to bring
charges, and that therefore the charges against Cotter were brought
merely in his capacity as a member, his position did bring with it
[W]hen a member assumes a union office, the office can
imbue the member's speech with additional
significance. Depending on the content of the speech
and the nature of the office, the officer's speech may
either advance her duties of office or interfere with
these duties. . . . In addition, officers with broad
policymaking or policy enforcing powers may be
considered to be `speaking for the union on most any
issue relevant to union policy. If the court
determines that an officer could reasonably be
as speaking for the union, if her speech affects
performance of her specific duties, the protections of
[§ 101(a)(2)] for membership speech do not
Dolan v. Transport Workers Union, 746 F.2d 733, 742 (11th Cir. 1984).
Helmer has not presented evidence to establish that the actions against
him were undertaken as retaliation for his exercise of rights protected
by § 101(a)(2). Therefore, summary judgment is appropriate on
Helmer's retaliation claims.
4. The Plaintiffs Have Not Shown a Denial of Their Rights of Equal
In his Sixth, Tenth, Twenty-Second, Twenty-Fourth, Twenty-Ninth and
Thirty-Fifth causes of action, Helmer asserts that the defendants
violated the plaintiffs' rights to participate equally in the democratic
process of the union, guaranteed by § 101(a)(1) of the LMRDA. As the
Supreme Court has held, this section "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). Also, "§ 101(a)(1)
provides that where the 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." Johnson v. Kay, 742 F. Supp. 822,
827 (S.D.N.Y. 1990).
Helmer's Sixth, Tenth and Twenty-Ninth claims simply do not relate to
any nominating or voting by the Local's members, but rather to Helmer's
pressing of charges against Cotter (the Sixth cause), the refusal to
process Helmer's charges against Briody (the Tenth cause), and the Local's
refusal to press Helmer's grievance against Con Ed (the Twenty-Ninth
cause). Therefore, under Calhoon, none of these causes can state a claim
under § 101(a)(1).
The Twenty-Second and Thirty-Fifth claims assert § 101(a)(1)
violations with respect to the November 9 and September 20 meetings,
respectively. The Thirty-Fifth claim is based on Briody's nomination of
new Business Agents and other officers at the September 20 meeting
following the membership's vote to keep Cotter in office. In brief,
Helmer argues that the nomination of appointees and their ratification by
the members was "fixed," in that: (1) the nominations were not made at
the "usual" time, following the Business Manager's report; (2) the
nominations were made late in the evening, after many of the members had
left; and (3) the public address system was not working, so that any
opposition to the appointees was not heard by the members.
With regard to the first two grounds, the By-Laws give the President
the right to nominate officers to fill vacancies, with no restriction on
when or how those nominations must be made. While it might have been
undesirable from Helmer's point of view for Briody to have waited until
late in the meeting to make these appointments, it simply cannot be said
that the timing of the nominations, however strategic, constituted
discrimination against anyone. As for the public address system, Helmer
does not allege that Briody was able to address the members but that
Helmer and his supporters were prevented from doing so, but rather claims
that no one was able to use the system, with the result that "[t]he great
majority of those present were not even aware that a vote was being
held." Amended Complaint ¶ 62. Again, while it is unfortunate for
Helmer that his supporters may not have been paying close enough
attention to the proceedings to detect what was going on, his allegation
is simply not enough to support a claim of discrimination in the voting
In the Twenty-Second cause of action, Helmer criticizes the membership
vote at the November 9 meeting on the charges against him, principally on
the grounds that the ballots distributed for the vote were "unduly
complicated and difficult to understand," and that the form of the ballot
made it much easier for voters to adopt the Committee's entire report
than to disagree with portions of it. Amended Complaint ¶¶ 33-34.
However, except in an extreme case, the mere fact that the format of a
ballot might make certain votes easier than others is not enough to make
out discrimination in the voting process. Helmer's complaint amounts to
nothing more than a claim that voters who might otherwise have supported
him were not attentive enough or motivated enough to pay attention to
their ballots. As this is insufficient to establish discrimination
against any voters or class of voters, Helmer's 101(a)(1) claim here
5. The § 609 Claims Are Unsupported.
In his Eighth, Twentieth, and Twenty-Fifth causes of action, Helmer
challenges the defendants' activities as retaliatory in violation of
§ 609 of the LMRDA, 29 U.S.C. § 529. That section provides:
It shall be unlawful for any labor organization, or
any officer, agent, shop steward, or other
representative of a labor organization, or any
employee thereof to fine, suspend, expel or otherwise
discipline any of its members for exercising any right
to which he is entitled under the provisions of this
Helmer's Eighth and Twentieth claims assert retaliation in the filing
of the charges against him and his conviction and removal from office,
while the Twenty-Fifth claim relates to the subsequent denial of his
membership rights after Con Ed refused to rehire him. In Finnegan,
supra, the Supreme Court held that "the term `discipline,' as used in
§ 609, refers only to retaliatory actions that affect a union
member's rights or status as a member of the union." 456 U.S. at 437, 102
S.Ct. at 1871 (emphasis in original). Because the filing of charges
against Helmer and his conviction on those charges affected only his
status as an officer of the Local, Finnegan clearly implies that they
cannot form the basis of a § 609 claim.*fn4 As for the Local's
refusal to treat him as a member following his attempt to return to Con
Ed, as discussed infra, Helmer has not adduced any evidence suggesting
that the Local had any alternative but to terminate his membership once
he was not an officer of the local or an employee of the company.
6 The § 101(a)(5) Claim Cannot Stand.
Similarly, Helmer's Nineteenth claim, that his conviction and removal
from office violated § 101(a)(5) of the LMRDA, is foreclosed by
Finnegan. "[Section 101(a)(5)'s] `prohibition on suspension without
observing certain safeguards applies only to suspension of membership in
the union; it does not refer to suspension of a member's status as an
officer of the union.'" 456 U.S. at 438, 102 S.Ct. at 1871 (quoting
H.R.Conf.Rep. No. 1147, 86th Cong., 1st Sess., 31 (1959)) (emphasis in
7. The Local Did Not Violate Helmer's Right to Fair Representation.
Helmer's Thirtieth cause of action asserts that the defendants
improperly refused to press his grievance against Con Ed, thereby
violating the union's duty of fair representation. The defendants'
earlier motion for summary judgment on this claim was denied based on the
statement that "there are two issues which Briody and the other
defendants must establish, that there is no factual conflict with respect
to the Local's exercise of its discretion and that there is no merit to
Helmer's grievance." Helmer I, 721 F. Supp. at 504 (S.D.N.Y. 1989). This
conclusion was rooted in the Supreme Court's explanation the duty of fair
A breach of the statutory duty of fair representation
occurs only when a union's conduct toward a member of
the collective bargaining unit is arbitrary,
discriminatory, or in bad faith. . . . [A] union may
not arbitrarily ignore a meritorious
grievance or process it in a perfunctory fashion. . .
Vaca v. Sipes,