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FARKAS v. RUMORE

March 9, 1995

LAWRENCE M. FARKAS, et al., Plaintiffs,
v.
ANTHONY RUMORE, et al., Defendants.



The opinion of the court was delivered by: LOUIS L. STANTON

 Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56 dismissing counts one, two, five and six of the Amended Complaint. (Counts three and four were dismissed with prejudice by order dated April 27, 1993.) Because the first and second counts (the contract ratification claims), on the one hand, and the fifth and sixth counts (the claims related to Farkas's termination), on the other, involve entirely different facts and analyses, they are discussed separately.

 I.

 Contract Ratification Claims

 Plaintiffs are employed *fn2" by Coca-Cola Bottling Company of New York, Inc. ("Coca-Cola") and are members of the Soft Drink and Brewery Workers Union, Local 812, International Brotherhood of Teamsters. *fn3" Defendant Anthony Rumore is the local union's president.

 Anticipating that their 1987-1991 collective bargaining agreement would expire on May 31, 1991, Coca-Cola and the union began negotiating the terms of a new agreement in March 1991. The union appointed a 55-person negotiating committee, whose members were to keep the general membership informed about the progress of the negotiations. (DiDio Aff., Heylman Dec. Ex. 2, PP 8-9.) The evidence whether they did so is conflicting.

 At the end of the May 29, 1991 negotiating session, Coca-Cola presented its final offer for the members' vote. The members had voted to authorize a strike if there was no agreement. (Id. P 11.) At the May 29 session, the negotiating committee members told the union that the voting should take place on May 30 and 31, 1991, in order to give all members the opportunity to vote. (Id. P 13.) The union's Executive Board agreed. (Id. P 15.)

 Union officials gave the negotiating committee members 600 copies of the final offer for distribution at the workplaces. (Id. P 16.) Shop stewards and committee members were instructed to post signs and to inform members, including those who were away from work, about the vote. (Russo Dep., Heylman Dec. Ex. 9, at 29, 31-32; Rosano Dep., id. Ex. 8, at 21; Vitta Dep., id. Ex. 10, at 25, 27.)

 Voting took place on May 30 and 31, 1991. A union business agent, or a member of its Executive Board, visited each workplace to discuss Coca-Cola's final offer with the members and to answer questions. Some union representatives brought to the information meetings additional copies of the offer (Vitta Dep. at 43; Rosano Dep. at 37; DiDio Dep., id. Ex. 31, at 172-73), and copies of the existing collective bargaining agreement. (Russo Dep. at 65; DiDio Dep. at 172.)

 The voting was conducted by secret ballot. Each member received an orange card, which he was required to fill out with his name and return in exchange for a ballot. (Affidavit of John Russo, id. Ex. 3, P 5.) The members voted 302 to 240 to accept the offer. (DiDio Aff. P 21.) This litigation ensued.

 Plaintiffs assert that Coca-Cola participated in the unlawful conduct and implemented an agreement it knew had been improperly ratified.

 A. LMRDA Claim

 Plaintiffs claim the union deprived them of a meaningful vote by failing to provide adequate notice of the vote or sufficient information about the final offer, as well as by misrepresenting the terms of the offer. They argue that this violated section 101(a)(1) *fn4" of the LMRDA, 29 U.S.C. § 411(a)(1), which provides:

 
Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to the reasonable rules and regulations in such organization's constitution and by-laws.

 The section has been read to "encompass more than just discrimination among union members." Petrazzulo v. Lowen, 534 F. Supp. 173, 177 (S.D.N.Y. 1982); see also Sheldon v. O'Callaghan, 497 F.2d 1276, 1282-83 (2nd Cir. 1974). A union has been required, once it has provided its members with the right to vote, to extend that right "in a meaningful manner." See, e.g., McGinnis v. Local Union 710, 774 F.2d 196, 199 (7th Cir. 1985), cert. denied, 475 U.S. 1121, 90 L. Ed. 2d 184, 106 S. Ct. 1638 (1986).

 Courts have differed on whether a union violates section 101(a)(1) if it fails to provide adequate information in connection with an election or referendum. Compare Brown v. International Brotherhood of Electrical Workers Local 58, 936 F.2d 251, 254 (6th Cir. 1991) (allowing claim of inadequate notice and information); Sako v. Local Union No. 705, 1987 U.S. Dist. LEXIS 3942, 1987 WL 10981 (N.D. Ill. May 11, 1987); Bauman v. Presser, 117 L.R.R.M. 2393, 1984 WL 3255 (D.D.C. 1984); Gilliam v. Independent Steelworkers Union, 572 F. Supp. 168, 171 (N.D. W. Va. 1983) with Ackley v. Western Conference of Teamsters, 958 F.2d 1463, 1473 (9th Cir. 1992); O'Connor v. Local 719, 739 F. Supp. 1158, 1161 (N.D. Ill. 1990) (claim of insufficient notice of ratification vote not cognizable under section 101(a)(1)). The majority of courts allow the claim.

 1. Standing

 Defendants argue that those plaintiffs who voted to reject the final offer, or did not vote, have no standing to sue because they did not rely on the union's misrepresentations. According to defendants, a union member is deprived of his rights under section 101(a)(1) of the LMRDA only if he voted in favor of the contract in reliance on the union's misrepresentations. Although the LMRDA itself imposes no such reliance requirement, defendants urge that the reliance requirement found in duty of fair representation cases be applied to plaintiffs' LMRDA claims.

 That view of the rights created by section 101(a)(1) is too narrow. The LMRDA protects not only a union member's right to cast an informed vote, but also the right to debate and organize opposition to a proposed contract or referendum. See Brown, 936 F.2d at 254 ("The District Court must determine whether the union provided its members sufficient time and information to allow an opportunity for debate and opposition."). Thus, a member who voted against the contract or did not vote at all can still claim that the union violated his right to debate and organize opposition to the contract.

 2. Summary Judgment

 Defendants contend that plaintiffs have not raised factual questions whether the members would not have approved the contract even if the union officials had accurately presented its terms, or whether Coca-Cola would have made a better offer if it were rejected. They ...


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