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January 21, 1992

WILLIAM KIRRANE, Plaintiff, against TRANSPORT WORKERS UNION OF AMERICA, GEORGE LEITZ, individually and as International president of Transport Workers Union of America, LOCAL 101 OF THE TRANSPORT WORKERS UNION OF AMERICA, and MARSHA SPINOWITZ, individually and as president of Local 101, Defendants.


The opinion of the court was delivered by: WHITMAN KNAPP

Before us are cross motions by plaintiff for partial summary judgment, and by defendants Transport Workers Union of America ("TWU") and George Leitz individually and as the TWU's International president and defendants Local 101 of the Transport Workers Union of America ("Local 101") and Marsha Spinowitz individually and as Local 101's president for summary judgment dismissing plaintiff's second amended complaint. Plaintiff, a former appointed staff representative to the TWU and an elected TWU International vice-president, has alleged two claims against the TWU and one against Local 101, seeking three distinct types of relief. With respect to the TWU he seeks: (1) restoration to his position as TWU staff member with back pay; and (2) restoration to his position as International vice-president. With respect to Local 101, for the purpose of running for president in what plaintiff hopes to be an upcoming election, he seeks a declaration that he is a member in good standing in the Local. The various claims are based on allegations that TWU and Local 101 violated Title I of the Labor-Management Reporting and Disclosure Act ("Act") §§ 3 (o), 101 (a)(1), (2), and (5), 29 U.S.C. §§ 402 (o), 411 (a) (1), (2), and (5) and § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185.

 A hearing was held on the motions on January 7, 1992. We agree with both plaintiff and defendants that there are no disputed issues of fact. For the reasons that follow we grant defendant TWU's motion for summary judgment dismissing both claims against it. We also dismiss the claim against defendant Local 101 for the basic reason that the issues here presented can more appropriately be adjudicated in a presently pending action brought against Local 101 by the Secretary of Labor in the Eastern District of New York, in which action plaintiff has intervened.

 * * * *

 As an initial matter we note that, there being no allegations whatsoever against Ms. Spinowitz individually, we have ordered, without opposition from plaintiff, her struck as a defendant in her individual capacity.

 1. Plaintiff's Dismissal as TWU Staff Member

 A. Facts

 Plaintiff William Kirrane began his life in the union movement in 1961 as a meter reader for Brooklyn Union Gas Co. An active member in Local 101, he held various offices and in 1969 was elected president. In 1970 he was elected an International vice-president, an unpaid position he was able to fill while remaining president of Local 101. *fn1" In 1979 plaintiff was appointed to a full-time paid staff position with TWU. Pl. Aff. paras. 3-5.

 Leitz concurs with plaintiff's conclusion that he was dismissed as a staff member because of disloyalty, but does not agree that plaintiff's activities with respect to the caucus had anything to do with the dismissal. On the contrary, he perceives the disloyalty to have arisen out of plaintiff's conduct in accepting a position on Leitz's slate as vice-president while secretly stumping for support for himself as a candidate for president or secretary-treasurer. TWU 3 (g) at para. 3. While plaintiff acknowledges he was interested in succeeding the then secretary-treasurer, who was approaching retirement, he denies he ever having solicited support for a bid against Leitz. Pl. Aff. at para. 22.

 On December 20, 1989, Leitz fired plaintiff, confirming this action by letter of December 21. Pl. Aff. at paras. 21; Pl. Exh. 2. Plaintiff appealed this dismissal to the International Appeals Committee, which ruled that appointment and dismissal of staff positions was at the International president's discretion. The dismissal was then approved by the International Executive Council. TWU 3(g) at para. 9. Plaintiff has appealed to the International Convention, which next meets in 1993.

 B. Discussion

 Following Finnegan v. Leu (1982) 456 U.S. 431, 72 L. Ed. 2d 239, 102 S. Ct. 1867, we grant TWU's motion to dismiss plaintiff's claim seeking reinstatement to his position as a staff member. In Finnegan, the Court rejected claims under § 101 of the Act by appointed union officers who were fired by a newly elected local president on the grounds that Title I does not bar dismissal of policymaking officers -- who continue to remain members of the union -- from their jobs as officers. Such a dismissal is "only an indirect interference with their membership rights." Id. at 440 (emphasis in original). The Court noted that:

 we need not decide whether the retaliatory discharge of a union member from union office . . . might ever give rise to a cause of action under § [101] . . . . For whatever limits Title I places on a union's authority . . . it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own.

 Id. at 440-441.

 See also Franza v. Int'l Brotherhood of Teamsters, Local 671 (2d Cir. 1989) 869 F.2d 41, 47 (non-policymaking union employee can be fired by union because "Finnegan teaches that it is not a member's employment by the union that is protected by Title I; rather it his his membership in the union that is safeguarded") (emphasis in original) *fn2" ; Cotter v. Owens (2d Cir. 1985) 753 F.2d 223, 228 ("Finnegan severely circumscribed the bounds of judicial intervention in intra-union factional disputes by limiting Title I claims to cases directly affecting membership rights").

 Plaintiff's case presents almost precisely the Finnegan scenario -- he was a staff officer appointed by Leitz's predecessor as union president (though he worked under Leitz for years as well) who was fired by Leitz for perceived disloyalty -- and we see no reason not to follow Finnegan in deferring to the union president. However, Finnegan allows for certain situations when Title I does and should apply to the dismissal of a staff member. Schonfeld v. Penza (2d Cir. 1973) 477 F.2d 899, 903, identifies one such exception where the dismissal of the staff member is part of a larger, insidious scheme of intimidation in order to quash dissent in the union. See also Cotter 753 F.2d at 229 (though union member dismissed from safety committee had no § 101 action for dismissal, allegation "that his removal was part of an over-all scheme to suppress dissent" did state a claim).

 Plaintiff has no more than alleged the existence of such a plot, which appears limited to a scheme to dispose of himself alone. *fn3" He has submitted no evidence even to suggest the existence of a grand scheme to suppress opposition to Leitz or the union leadership. *fn4" This exception is therefore unavailing.

 Sheet Metal Workers Int'l Assoc. v. Lynn (1989) 488 U.S. 347, 102 L. Ed. 2d 700, 109 S. Ct. 639, carved out another exception to Finnegan's general rule in a case where a union-appointed trustee fired plaintiff from his elected staff position for plaintiff's refusal to vote in accordance with the trustee's desire to raise union dues. Assessing the fired official's claim in light of the Act's "basic objective: 'to ensure that unions [are] democratically ...

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