The opinion of the court was delivered by: Sweet, District Judge.
Defendant Eugene T. Briody ("Briody") and individuals allied in
interest with him together with Local 1-2 Chapter (the "Local") of the
Utility Workers Union of America ("UWUA") have moved for summary judgment
dismissing the complaint of plaintiff Henry J. Helmer ("Helmer") and
individuals allied in interest with him. For the reasons set forth
below, the motion for summary judgment is granted, and the complaint is
The parties and prior proceedings in this lawsuit have been described
in earlier opinions, familiarity with which will be assumed. Helmer v.
Briody, 721 F. Supp. 498 (S.D.N.Y. 1989) (Helmer 1), Helmer v. Briody,
747 F. Supp. 1020 (S.D.N.Y. 1990) (Helmer II).
Before making the present motion, the Local moved for summary judgment
on Helmer's claim for violation of the Local's duty of fair
representation. Although that motion was denied in Helmer I, the Local
renews it here on the basis of the summary judgment motion made by
Consolidated Edison Company of New York ("Con Ed") and granted, after
submission of the present motion, in Helmer II.
This is a suit for damages arising out of Helmer's removal in 1988 from
his position as Business Manager of the Local, which represents certain
of the Con Ed employees.*fn1 The relevant facts involve parties and
events dating back almost 20 years in the history of the Local.
In 1971, James Joy ("Joy") was elected to the position of Business
Manager, the Local's top collective bargaining position. Shortly
thereafter, he appointed his campaign manager Helmer to fill a vacant
Business Agent position. Joy retained his position in the elections in
1974, 1977 and 1980. In 1980, he was elected national President of the
UWUA, for which he left his position in the Local.
Between 1981 and 1986 there was an increase in internal strife in the
Local and a considerable amount of litigation among various members and
factions. In March 1986, allegedly in an attempt to prevent a group led
by Michael Cotter ("Cotter") from winning the Local's June 1986
election, a group of officers led by Helmer and Briody asked Joy to
return to the Local and run as the head of an incumbent slate. In putting
together his ticket, Joy selected Briody for the Local's top
administrative position, President, and designated Helmer as one of his
Assistant Business Managers. Joy's slate won the 1986 election.
Joy remained with the Local as Business Manager until November 1987,
when he decided to resume full-time responsibility as President of the
UWUA. When he left, Briody appointed Helmer to be Business Manager in
Joy's place. This appointment was ratified by the members at the Local's
November 1987 meeting.
As Business Manager, Helmer began to experience problems dealing with
his fellow officers. In June 1988, he fired one of the Local's attorneys
and caused the General Counsel to resign. He then hired a new law firm
without the approval of the Executive Board. On July 11, 1988, he filed
disciplinary charges against Cotter and sought his removal from office.
On July 28, following a trial on these charges, the Executive Board voted
31 to 1 against Cotter and recommended his removal from office. A meeting
was scheduled for September 20 for the members to vote whether to accept
Prior to the September 20 meeting, Cotter undertook an intensive
political campaign to preserve his position. He attacked Helmer directly
on many issues, distributed a number of leaflets and even attempted to
send a mailing to members' homes. In order to obtain the Local's mailing
list for this mailing, Cotter was forced to seek a preliminary
injunction, which was granted on August 22, 1988. Cotter v. Helmer,
692 F. Supp. 313 (S.D.N.Y. 1988) (Conboy, J.). He then obtained a second
injunction to require that the voting at the September 20 meeting be done
by secret ballot. Cotter v. Helmer, 132 LRRM 2351, 1988 WL 96162
(S.D.N.Y. 1988) (Leisure, J.). In response to Cotter's campaign, Helmer
published and distributed, on Union letterhead and at Union expense, four
leaflets attacking Cotter on a variety of issues.
On September 20 the members voted 1,300 to 450 to reject the Board's
recommendation and to keep Cotter in office. After this result, there
seems to have been a backlash of feeling against Helmer by many of his
fellow officers, who sought an end to the divisive political battles
being fought in the Local.
On September 22, Helmer called a joint meeting of the Local's full-time
officers ("the Staff") and its Executive Board. During the meeting,
various people expressed the view that for the good of the membership and
in order to reduce the bickering among the leadership Helmer should
consider stepping down, The Executive Board also voted to discharge the
counsel Helmer had hired and to rehire the attorneys who had previously
represented the Local.
The Staff had another meeting on September 26, 1988. Again, several
people voiced the opinion that Helmer could not lead the Union and stated
that it was in the best interests of the membership for Helmer to
resign. After some discussion, the Staff asked Helmer and Briody to sit
down and talk about a peaceful resolution. A suggestion was made by one
of Helmer's supporters, Business Agent Sam Papa ("Papa"), that Joy be
consulted to see if a job might be available in the UWUA for Helmer.
The following day, Helmer and Briody met with Joy and explained the
state of affairs in the Local. Joy offered Helmer a position working f or
the national union as Director of Organization. In fact, Briody had been
offered the same job about six weeks earlier. Helmer said that he would
consider accepting the position.
On, September 29, 1988, Joy met Helmer and Briody again. Helmer stated
that he would accept the job offer if he could be assured that his
supporters on the Staff would keep their jobs and would be guaranteed a
place on the incumbent election slate in February 1989. Briody at first
agreed to these terms, but the agreement broke down over Helmer's request
that the promise be put in writing and held by a neutral third party, and
the meeting ended without resolution. Two days later, Helmer turned down
Joy's job offer and stated that he
intended to stay on as Business Manager of the Local.
On October 3, 1988, the Local's four Assistant Business Managers,
including Cotter, brought charges against Helmer. On October 5, 1988,
they amended the charges to add more detail. Helmer was accused of seven
1) misusing the Local's funds for his personal benefit by incurring
excessive and unreasonable expenses on union business and by using his
union expense account to pay for personal expenses;
2) misusing the Local's funds for his own political ends;
3) violating the By-Laws by failing to "establish friendly relations"