Moreover, by the time the UBC was involved in the matter, the slander and libel charges had already been dismissed. The UBC expressly noted that this was the appropriate result. Because UBC had no duty to intervene -- see Phelan, 973 F.2d 1050 at 1061 ("an international union has no independent duty to intervene in the affairs of its local chapters, even where the international has knowledge of the local's unlawful acts"); Rodonich, 817 F.2d at 974 (It "is established law" that an international has "no independent duty to intervene in the affairs of [its local]") -- it was not required to undo what already had been corrected. Thus, the UBC is not liable for the Local 85 defendants' unlawful actions.
DeCarlo alleges that on one occasion the trial committee sought counsel from one Kathy Krieger, who was at the time counsel for the UBC. This involvement, asserts DeCarlo, makes the UBC an active participant in Local 85's actions. I disagree.
While DeCarlo asserts that Krieger was consulted concerning the allegation that DeCarlo had attempted to bribe trial committee member Jonathan Wirt, DeCarlo offers no explanation concerning Krieger's role who she advised, or in what capacity she was acting.
While the record is not clear concerning Krieger's role, the absence of evidence or explanation indicates that it was minimal. No reference is made to her, or any advice rendered by her, at any place in the trial transcript. (The only attorney mentioned is attorney Geroux, whose letter was read into the record.) There is no evidence or even suggestion that Krieger advised the executive committee or the union membership at large in any way, or that the executive committee or union membership even was aware of or relied upon any advice allegedly rendered by her. Whatever her role may have been it clearly was minimal and was limited to contact with the trial committee only (which made no determinations regarding guilt or punishment), well after Local 85 had brought charges against DeCarlo. Thus, I find that Krieger's alleged role, if any, was insufficient to raise a triable issue concerning UBC's involvement in Local 85's activities. See Phelan, 973 F.2d 1050 at 1062 ("the offer or limited provision of legal aid does not alone suffice to show a triable issue as to whether an international union either had full knowledge of and ratified the local's actions or had itself participated in [them]"); see also Brenner, 927 F.2d 1283 at 1289 ("Mere constructive knowledge of possible illegal activity on the local level is not sufficient to impose a legal duty to intervene on the International Union"); Chapa v. Local 18, 737 F.2d 929, 932 (11th Cir. 1984)(finding no liability on part of international union where its representatives were present at local meetings but acted only as spectators or on behalf of the local).
I find that UBC is not liable for the unlawful acts of the Local 85 defendants. DeCarlo's motion against the UBC is denied in its entirety and UBC's motion for summary judgment against DeCarlo is granted in its entirety.
For all the above reasons, I hereby GRANT in part and DENY in part DeCarlo's motion for summary judgment against the Local 85 defendants ( # 3); GRANT in part and DENY in part the Local 85 defendants' cross-motion for summary judgment ( # 11); GRANT the UBC's motion for summary judgment ( # 24); and DENY DeCarlo's cross-motion for summary judgment against the UBC ( # 31).
Whether DeCarlo can prove that he suffered something other than nominal damages for the violation of § 101(a)(2) remains to be determined.
Any claimed damages must be causally connected to the suppression of speech claim and not to the suspension imposed because of the $ 20 offer charge which I have sustained. The damages must be separate and distinct from whatever DeCarlo has incurred relative to the charge that has been sustained. The burden, of course, is on DeCarlo to establish his entitlement to damages.
If the matter cannot be resolved between the parties, then DeCarlo is directed to set forth in an affidavit his claimed damages, both compensatory and special, and the basis for each item of damage. DeCarlo must also submit legal authority supporting such relief.
Thereafter, the Local 85 defendants must respond. The Court will then determine whether the issue can be resolved by the Court on the submitted papers or whether an inquest or hearing concerning damages will be necessary.
DeCarlo's submissions, if any, on damages must be filed with the Court, within fifteen (15) days of entry of this Decision and Order and the Local 85 defendants' response must be filed within fifteen (15) days of receipt of DeCarlo's submission.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
September 24, 1997.