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KOZERA v. IBEW

July 11, 1995

TED KOZERA, RICHARD M. MEKEEL, and ARTHUR FILARDI, each individually and as a member of Local Union 501 of International Brotherhood of Electrical Workers and employees covered by its Inside Wiremen's Agreement, and each on behalf of all employees whose wages and conditions are governed by such Agreement, similarly situated, Plaintiffs, against INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO; LOCAL UNION 501 OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO; WESTCHESTER FAIRFIELD CHAPTER OF NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, INC. and BRIAR ELECTRIC, INC., G.C. MONACO ELECTRIC, INC., and DYNATRAM, DIVISION OF DYNA ELECTRIC, each of them individually and as representative of all employers bound by or party to the 1989-1992 Inside Wiremen's Agreement, similarly situated, Defendants.

John E. Sprizzo, United States District Judge


The opinion of the court was delivered by: JOHN E. SPRIZZO

SPRIZZO, D.J.,

 BACKGROUND

 The instant litigation is a sequel to an earlier action filed in this court. See Kozera v. Westchester-Fairfield Chapter of Nat'l Elec. Contractors Ass'n, Inc. ("Kozera I"), 714 F. Supp. 644 (S.D.N.Y. 1989), rev'd in part and vacated in part, 909 F.2d 48 (2d Cir. 1990), cert. denied, 111 S. Ct. 956 (1991).

 As an affiliate of IBEW, Local 501 represents its members in collective bargaining negotiations with Chapter, whose membership is comprised of individual electrical contractors. *fn1" Kozera I, 714 F. Supp. at 646. In June 1986, on the eve of an impending strike, Local 501 and Chapter negotiated the 1986-89 Collective Bargaining Agreement (the "1986-89 CBA"), which contained the 1986-89 Inside Agreement. Id. The 1986-89 CBA was ratified by the Local 501 membership in accordance with past union practice, but Chapter did not sign it. Id.

 On April 27, 1987, Chapter proposed to supplement the 1986-89 Inside Agreement by adding to that agreement the 1986-89 Residential Agreement and the Memorandum of Understanding for Small Work (the "1986-89 Small Work Agreement"). *fn2" Kozera I, 714 F. Supp. at 646. Despite protracted negotiations, Chapter refused to sign the 1986-89 Inside Agreement unless Local 501 signed the other two agreements. Id. In May 1987, after submitting the dispute to arbitration before the Council on Industrial Relations ("CIR"), the parties were ordered to sign each of the agreements. Id.

 As the president and business manager of Local 501 respectively, Donald Werle and George Horrigan were actively involved in the collective bargaining negotiations with Chapter. Kozera I, 714 F. Supp. at 647. In June 1987, responding to pressure exerted by IBEW to comply with the CIR award, Werle and Horrigan signed both the 1986-89 Residential Agreement and the 1986-89 Small Work Agreement, but failed to seek ratification from the Local 501 membership. Id. at 647, 651. Thereafter, the Local 501 membership divided along factional lines: the "Kozera faction" urged action to challenge the 1986-89 CBA, while the "Horrigan faction" opposed measures that might exacerbate Local 501's problematic relationship with IBEW. In July 1987, plaintiff Ted Kozera and other members of Local 501 commenced Kozera I against IBEW, Local 501 and Chapter.

 On May 30, 1989, at the conclusion of a bench trial, this Court held that the 1986-89 Inside Agreement, as ratified by the Local 501 membership, was enforceable. Kozera I, 714 F. Supp. at 648-51. The Court also concluded, however, that the 1986-89 Residential Agreement and 1986-89 Small Work Agreement were unenforceable because, absent ratification from the Local 501 membership, Horrigan and Werle lacked apparent authority to execute the agreements. Id. at 650. In the end, the Court held that Chapter violated the 1986-89 Inside Agreement by implementing the unauthorized 1986-89 Residential Agreement and the 1986-89 Small Work Agreement. Id.

 On appeal, the Second Circuit reversed in part and remanded. The court concluded that the 1986-89 Inside Agreement, the 1986-89 Residential Agreement and the 1986-89 Small Work Agreement were valid and enforceable. Kozera I, 909 F.2d at 54. The Court also concluded that Chapter, relying upon the apparent authority of Local 501 officials, did not breach the 1986-89 Inside Agreement by implementing the other two agreements. Id. The Second Circuit remanded for a factual determination concerning whether Local 501, through Horrigan and Werle, had breached its duty of fair representation. Id. at 55. On remand, this Court found as a matter of fact, after a full hearing, that Local 501 did not breach its duty of fair representation.

 In January 1989, while Kozera I was still pending, IBEW Representative Edwin Hill recommended to the IBEW that Local 501 be placed under trusteeship. Hayes Aff. Exh. 16. The recommendation, allegedly based upon Local 501's refusal to accept the 1986-89 Residential Agreement and the 1986-89 Small Work Agreement, cited "the filing of the lawsuits against the contractors" and the "hostile mood" pervading Local 501. Id.

 In May 1989, the 1986-89 CBA expired. After a three week strike, Chapter and Local 501 negotiated the 1989-92 Collective Bargaining Agreement (the "1989-92 CBA"), which was signed by both parties. Affidavit of Bruce DeShay Sworn to April 7, 1993 ("DeShay Aff.") P 6; Affidavit of Ted Kozera Sworn to February 5, 1992 ("Kozera Aff.") P 15. The 1989-92 CBA, like its predecessor, contained an Inside Agreement and a Residential Agreement, which provided for annual incremental wage increases. DeShay Aff. PP 7-8. However, the 1989-92 CBA did not contain the Memorandum of Understanding for Small Work. Id. P 8.

 Notwithstanding the negotiation of the 1989-92 CBA, Edwin Hill continued to investigate Local 501. In March 1990, Hill conducted an internal audit of Local 501. Plaintiffs' Memorandum of Law ("Pltf. Mem.") Exh. 8, pp. 20-21. In April 1990, Hill met with Bruce DeShay, the executive manager of Chapter, and various individual electrical contractors. According to DeShay, the meeting concerned market status, non-union competition and labor relations. DeShay Aff. PP 11-12. In addition to Hill's investigation, IBEW collected a variety of complaints from Chapter regarding the operations of Local 501. In one correspondence, for example, Morton Hoffman, the national vice-president of Chapter, requested that IBEW President J.J. Barry "use [his] position and authority to bring about changes in Westchester." Hayes Aff. Exh. 13.

 On May 8, 1991, following a two year investigation, IBEW held a hearing, pursuant to its constitution, to determine whether Local 501 should be placed under trusteeship. Hayes Aff. Exh. 40; Affidavit of Edwin Hill Sworn to July 25, 1991 ("1st Hill Aff.") P 6. After lengthy testimony, which included the participation of Local 501 members, President Barry placed Local 501 under trusteeship. *fn3" 1st Hill Aff. PP 7-9; Affidavit of Edwin Hill Sworn to March 20, 1992 ("2d Hill Aff.") P 8.

 The period of trusteeship commenced on July 5, 1991. Shortly thereafter, IBEW suspended Local 501's regular union activities and appointed trustees to conduct union business, including collective bargaining negotiations. 1st Hill Aff. P 10; Hayes Aff. Exh. 42; Affidavit of J. J. Barry Sworn to April 5, 1993 ("Barry Aff.") Exh. 1. In July 1991, Bruce DeShay, contacted Edwin Hill, a named trustee, to discuss Chapter's proposal to amend the 1989-92 CBA. DeShay Aff. PP 19-20, At that time, DeShay informed Hill that Chapter and Local 501 discussed the proposed amendment at an earlier labor-management meeting. Id. PP 19-20, Exh. B.

 On January 20, 1992, after further negotiations with Chapter, the trustees submitted a revised collective bargaining agreement (the "revised CBA") to President Barry. In addition to the wage deferral and extension amendments negotiated on July 24, 1991, the revised CBA contained a newly negotiated Small Work Agreement. Pltf. Mem. Exh. 3. On March 20, 1992, Barry approved the revised CBA, except for the Small Work Agreement contained therein, which he stamped "NOT APPROVED." Id. Plaintiffs contend that the trustees implemented the revised CBA prior to Barry's approval in violation of the IBEW constitution and the original 1989-92 CBA.

 Plaintiffs also set forth claims against Dynatram, an individual electrical contractor. These claims are apparently based on the fact that although not a member of Chapter, Dynatram adopted the terms of the 1989-92 CBA for the purpose of conducting work at the Mamaroneck Water Waste Treatment Plant in Westchester County. By the end of 1991, plaintiff Richard Mekeel's association with the Kozera faction was apparent at Local 501 union meetings. Pltf. Mem. Exh. D, p. 111, Exh. E, p. 83. During August and September 1991, for example, Mekeel and others circulated a petition decrying the governance of the IBEW trustees. Id. Exh. 18. In January 1992, Timothy Broder, a supervisor at Dynatram and the recording secretary of Local 501, laid off Mekeel ...


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