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September 24, 1997

FRANK SALAMONE, et al, Defendants.

The opinion of the court was delivered by: LARIMER


 This dispute arises out of plaintiff Frank DeCarlo's suspension from the United Brotherhood of Carpenters and Joiners of America, Rochester Local 85 ("Local 85"). DeCarlo asserts that Local 85 and two of its officers violated his "free speech" rights guaranteed by Section 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 ("LMRDA"), as well as his right to a "full and fair hearing", guaranteed by Section 101(a)(5) of the LMRDA, when they suspended his union membership for a three-year period. DeCarlo asserts that the United Brotherhood of Carpenters and Joiners of America, AFL-CIO ("UBC") is liable as the parent body of Local 85. DeCarlo brings this action pursuant to Sections 101(a)(2), 102 and 609 of the LMRDA, 29 U.S.C. §§ 411(a)(2), 412 and 529. DeCarlo seeks reinstatement, compensatory and punitive damages, and attorneys' fees and costs.

 Presently before me are DeCarlo's motion for summary judgment against Local 85, Local 85's cross-motion for summary judgment, UBC's motion to dismiss or for summary judgment, and DeCarlo's cross-motion for summary judgment against UBC. For the reasons stated below, DeCarlo's motion against Local 85 is granted in part and denied in part, Local 85's motion is granted in part and denied in part, UBC's motion is granted and DeCarlo's motion against UBC is denied.


 This case is about union officials' apparently well intended but sometimes misdirected attempts to discipline a union member who was an outspoken and persistent critic of certain union officials. In August 1993 defendant Frank Salamone, then president of Local 85, issued a letter to all union members formally charging DeCarlo with violating the Union's constitution. The charges were based upon statements made by DeCarlo in three letters: an April 1993 letter to retired union members ("retirees"), a May 1993 letter to the General President of the UBC, and a June 1993 letter to union retirees. According to defendants, DeCarlo made several false allegations in these letters, including charges that certain members were not paying dues, that the election committee was acting improperly, and that the retirement fund trustees were conspiring to hold down benefit increases. Additionally, the June letter contained an offer by DeCarlo to pay $ 20 to all retirees who voted in the upcoming union election, so long as the retirees signed up at a table staffed by DeCarlo, and so long as the slate supported by DeCarlo won the election. According to DeCarlo, the $ 20 offer was "made to defray your transportation cost to and from the voting place" and "may also buy your lunch." Apparently after objections were raised, DeCarlo retracted the $ 20 offer in a follow-up letter dated the same day as the original letter containing the offer.

 DeCarlo was charged with violating Section 55 A(1) of the constitution ("Causing dissension among [union] members"); Section 55 A(5) ("Willful slander or libel of an officer or member"); and Section 55 A(13) ("Violating the Obligation" by which union members pledge their word and honor).

 Pursuant to the Union's constitution, a trial on the charges was conducted and a trial committee, comprised of non-interested union members, was selected to hear the charges. Defendant Salamone, as President of Local 85, presented the charges to the trial committee. DeCarlo, represented by counsel, appeared and defended the charges.

 What ensued next can best be described as confused and confusing. The trial was convened, adjourned, and reconvened several times over a four-month period. Nearly every session was marked by contentious comments and accusations by DeCarlo, and evident frustration on the part of the committee. Testimony from several witnesses for the 'prosecution' was taken during the first two sessions. DeCarlo himself cross-examined these witnesses at length. A third session was convened and adjourned without explanation. At the beginning of the fourth session, the parties were excused and the committee, in "executive session," received testimony from committee member Jonathan Wirt, who testified that DeCarlo had approached him, shortly after Wirt was selected to serve on the trial committee, and offered him $ 1,000 if he would not "show up to the hearing."

 The committee sought legal advice from attorney E. Joseph Giroux, Jr., concerning this allegation. Giroux's letter to the committee, recommending that it declare a mistrial because the alleged bribe might be perceived as making the committee biased, was read into the record. *fn1" The hearing then was recessed.

 At the next session, one month later, Wirt resigned from the committee citing the alleged bribe and his inability to be impartial. However, no mistrial was declared.

 One month later the hearing was again convened. DeCarlo was given the opportunity to present his case. He presented no proof, but instead spoke emphatically and at length about the bias of the committee and numerous alleged procedural defects at the hearing. He concluded his remarks by asserting that Salamone had failed to prove his case and he requested that the committee dismiss the charges. Following DeCarlo's lengthy testimony, the committee recessed and when it returned the committee chairman declared "we feel that since the accused feels that we are very biased in this case, we are calling for a mistrial..." Transcript of Proceedings, April 25, 1994, at p. 26.

 Following the "mistrial," the hearing transcripts were forwarded by the trial committee to Local 85's Executive Committee which, after deliberation, recommended that the charges relating to slander and dissension be dropped, but that DeCarlo be punished for making the $ 20 offer to the union's retirees.

 The recommendation was put to the union members, and they voted overwhelmingly to approve the Executive Committee recommendation. Accordingly, DeCarlo was given a three-year suspension for making the $ 20 offer. The other charges were dismissed.

 DeCarlo appealed the suspension to the UBC which affirmed the Local's determinations. Noting that "the course of events in this case makes a regrettable demonstration of how easy it can be to undermine and disrupt the internal union proceedings designed to help 'lay persons' render membership discipline ...." the UBC Appeal's Committee upheld the actions of the Local 85 officials and stated that "the unfortunate course of events and procedural complications in this case should not deprive the Local Union membership of a meaningful remedy for the evident violation committed by Brother DeCarlo." Appeals Committee Determination, June 22, 1995.

 DeCarlo commenced this action April 1996.


 All parties seek summary judgment. Pursuant to Fed.R.Civ.P. 56(c), a moving party is entitled to a judgment as a matter of law if there is "no genuine issue as to any material fact" and where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden is on the moving party to inform the court of the basis for its motion and to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). After the moving party has carried its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "The non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed.R.Civ.P. 56(e) (alteration in original)).

 A) DeCarlo and Local 85's Cross Motions for Summary Judgment

 DeCarlo seeks summary judgment on his claim that Local 85 and the individual defendants (the "Local 85 defendants") violated LMRDA Section 101(a)(2) *fn2" by prosecuting the charges of slander and libel, even though ultimately they were dismissed. He asserts that the charges were "maliciously instituted ... as a reprisal against [him]" for his support of dissident candidates and his criticism of union officials. Complaint at P 8.

 He also seeks summary judgment on his claim that these defendants failed to provide him with a "full and fair" hearing, as required by LMRDA Section 101(a)(5) *fn3" , because he was never permitted to present his defense, and because the hearing was fraught with procedural errors. DeCarlo claimed that the hearing was aborted before he completed his defense.

 The Local 85 defendants oppose and cross-move for summary judgment on both claims, asserting that because DeCarlo was not disciplined for the defamation charges, no claim under Section 101(a)(2) can be sustained. The Local 85 defendants also assert that this Court owes considerable deference to the Local's determinations and that it is clear from the record that DeCarlo had ample opportunity to defend himself during the ...

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