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HELMER v. BRIODY

March 27, 1991

HENRY J. HELMER, PATRICK BENCIVENGO, JAMES CROW, WILLIAM DODD, JOHN DUFFY, JAMES KELLY, JACK LOPEZ, JAMES MOTTETT, CHARLES PISCOPO, MANUEL SANCHEZ, PHILIP VARRICHIO AND JOHN WALSH, JR., PLAINTIFFS,
v.
EUGENCE BRIODY, JOSEPH ZUMMO, JACK MURPHY, MICHAEL COTTER, RICHARD BESTHOFF, EACH IN HIS INDIVIDUAL CAPACITY ONLY; ANTONIO SANCHEZ IN HIS OFFICIAL CAPACITY AS SECRETARY-TREASURER OF LOCAL 1-2, UWUA, AFL-CIO AND IN HIS INDIVIDUAL CAPACITY JOSEPH FINO; AND LOCAL LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA, AFL-CIO, AND CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., DEFENDANTS.



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

 West

[ Page 172]

OPINION

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 dismissed.

PRIOR PROCEEDINGS

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.

THE FACTS

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.

In early 1987, following a series of meetings to reduce the Local's internal conflicts, Joy suggested that Cotter become an Assistant Business Manager and merge his political organization into the management group of the Local. Cotter agreed, and Briody appointed him to a newly-created Assistant Business Manager position. This appointment was ratified by vote of the membership at the April 1987 membership meeting.

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 this recommendation.

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 violations:

    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"
  between ...

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