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KOZERA v. INTERNATIONAL BROTH. OF ELEC. WORKERS

August 27, 2002

TED KOZERA, PLAINTIFF,
V.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Berman, District Judge.

  FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Introduction

This ruling, upon submission by both sides without a trial, resolves all open issues in this labor relations case. The Court concludes, upon the very unique procedural and substantive facts presented here, that there is merit to some of Plaintiff Ted Kozera's ("Kozera" or "Plaintiff") claims, although no basis exists for other than nominal damages.

On or about January 6, 1992, union members Plaintiffs Kozera, Richard M. Mekeel ("Mekeel") and Arthur Filardi ("Filardi") (collectively, "Plaintiffs") commenced this action pursuant to the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 461 et seq., against, among others, the International Brotherhood of Electrical Workers ("IBEW"), Local 501 of the IBEW ("Local 501"), and the Westchester Fairfield Chapter of the National Electrical Contractors Association, Inc. ("NECA Chapter") (collectively, "Defendants").*fn1 As members of Local 501, Plaintiffs complained of alleged labor/management infractions, including inter alia, that a trusteeship was improperly imposed and maintained upon their local union to suppress a purportedly "uncooperative" faction of union members including Plaintiffs. See Third Amended Complaint, filed October 23, 1992 ("Third Amended Complaint") ¶ 1. The parties have waived a trial and requested the Court to render its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 52(a), based upon the (voluminous) record, which includes, without limitation the Second Amended Consolidated Joint Pretrial Order submitted January 5, 2001 ("Pretrial Order"), and the Third Amended Complaint. See Transcript of Conference held before the Court May 11, 2001, at 2-3.

Plaintiff Kozera contends in the Pretrial Order that he has five (remaining) claims as follows:

(1) the IBEW Constitution, Article IV, § 3(9) (last sentence*fn2) restricts the right to sue, to free speech and assembly in violation of Title I of the LMRDA, 29 U.S.C. § 411(a)(2), (4) ("Article IV, § 3(9) claim"); ("It has no purpose, actually, even being in there, other than to intimidate the membership and chill any dissidents.");
(2) the IBEW imposed and maintained a trusteeship of Local 501 starting July 5, 1991 and ending in June 1992 ("Trusteeship"), to suppress Plaintiffs right to sue and to free speech and assembly in violation of Title I of the LMRDA, 29 U.S.C. § 411(a)(2), (4) ("Trusteeship claim");
(3) the IBEW breached the IBEW Constitution and the (then) existing (198992) collective bargaining agreement ("1989-92 CBA") by implementing a revised collective bargaining agreement ("Revised 1989-92 CBA") between the NECA Chapter and Local 501, containing an unapproved small work agreement ("Small Work Agreement") in violation of Section 301 of the LMRA ("Section 301"), 29 U.S.C. § 185 ("Small Work Agreement claim against IBEW"); (4) the NECA Chapter breached the 1989-92 CBA by implementing the Revised 1989-92 CBA containing the unapproved Small Work Agreement, in violation of Section 301 ("Small Work Agreement claim against the NECA Chapter"); and
(5) the IBEW, the NECA Chapter, and Local 501 and its successors implemented the Pavillion Project Agreement in 1993, without approval and without ratification of members of Local 501, contrary to the IBEW Constitution, the 1989-92 CBA, and Title I of the LMRDA, 29 U.S.C. § 411(a)(1) ("Pavillion Project claim").*fn3

Pretrial Order, at p. 1 ¶¶ 1(1)-(5).

Defendants contend, inter alia, that: (1) Kozera lacks standing with respect to his Article IV, § 3(9) and Small Work Agreement claims; (2) Article IV, § 3(9) does not interfere with a protected right and, assuming arguendo that it did, it is a reasonable rule under LMRDA § 101(a)(2); (3) the Trusteeship claim has already been dismissed by this Court's Order, dated January 27, 2000; (4) the Small Work Agreement did not breach the IBEW Constitution or the 1989-92 CBA; (5) the Small Work Agreement claims against the IBEW and the NECA Chapter fail because Kozera does not assert or seek (money) damages; and (6) the Pavillion Project claim is not properly before the Court because, among other things, it was mentioned for the first time in the Second Amended Consolidated Joint Pretrial Order and is not included in the Third Amended Complaint. Id.

Pursuant to Fed.R.Civ.P. 52(a), the Court's findings of fact and conclusions of law follow.

II. Findings of Fact

1. The IBEW is a labor organization of electrical workers in the United States and Canada with its headquarters in Washington, D.C. Stip. Facts ¶ 2.*fn4
2. Ted Kozera was a journeyman electrician and member of Local 501; Local 501 was merged into IBEW Local 3 on August 1, 1993. Id. ¶¶ 1-3. Both Local 3 and Local 501 were subordinate, chartered and affiliated bodies of the IBEW. Id. ¶ 3.
3. The NECA Chapter was an employer association that represented various electrical contractors in the construction industry in Westchester County, New York and Fairfield County, Connecticut for collective bargaining purposes until 1993, when it discontinued its operations.*fn5 Id. 4.
4. The IBEW Constitution is the governing document for the IBEW and for all IBEW local unions. Id. ¶ 5.
5. The instant litigation is a sequel to Kozera v. Westchester Fairfield Chapter of Nat'l Elec. Contractors Ass'n Inc. ("Kozera I"). Kozera I, filed by Plaintiff and other Local 501 members, involved a challenge to Local 501's implementation of a Residential Agreement and a Small Work Agreement (for the period 1986-89) allegedly without ratification by the Local 501 membership. See Kozera I, 714 F. Supp. 644, 646 (S.D.N.Y. 1989), rev'd in part and vacated in part, 909 F.2d 48 (2d Cir. 1990). On May 30, 1989, in Kozera I, Judge Sprizzo held, among other things: (1) that the 1986-89 Residential and Small Work Agreements were unenforceable because, absent ratification, Local 501 officers lacked authority to execute those agreements; (2) the NECA Chapter violated the 198689 Collective Bargaining Agreement ("1986-89 CBA") by implementing the unauthorized 1986-89 Residential and Small Work Agreements; and (3) Local 501 did not breach its duty of fair representation.*fn6 Kozera I, 714 F. Supp. 644. On appeal, the United States Court of Appeals for the Second Circuit found that: (1) both the Residential and Small Work Agreements were enforceable without ratification by the Local 501 membership; (2) the NECA Chapter, relying on the authority of Local 501 officials to execute the Residential and Small Work Agreements, did not breach the 1986-89 CBA by implementing the Residential and Small Work Agreements; and (3) the issue of whether Local 501 breached its duty of fair representation required further review by the trial court. Kozera, 909 F.2d 48 ("Because the [NECA] Chapter had no reason to doubt the authority of union officers to [sign the agreements pursuant to] an arbitration order, we think that both [agreements] are binding. . . ."). On remand, Judge Sprizzo found that Local 501 did not breach its duty of fair representation. See Kozera v. Int'l Broth. of Elec. Workers, AFL-CIO, 892 F. Supp. 536, 541 (S.D.N.Y. 1995).
6. In 1988, the IBEW received various complaints about Local 501 (see 1993 Sloan Aff., Ex. 14 ("the Local Union still refuses to recognize [the] policy [of foreman call-out by name] and has told employers that they don't, continuously rebutting any cooperation with the employers as well as with their own International")), from contractors and Local 501 members; International Representative Ed Hill ("Hill") was assigned by International President J.J. Barry ("Barry") to investigate the complaints.*fn7 Stip. Facts ¶ 8.
7. In January 1989, while Kozera I was pending, Hill recommended to the IBEW that a (show cause) hearing be held, id. ¶ 12, and that Local 501 be placed under International Charge pursuant to Article IV, § 3(9).*fn8 Affidavit of Michael J. Hayes, dated April 7, 1993 ("Hayes Aff."), Ex. 16. Hill's recommendation cited, among other things, "the filing of the lawsuits against the contractors" and the "hostile mood" pervading Local 501. Id.; see Plaintiffs' Opposition to Defendants' Motion for Summary Judgment, dated July 12, 1993 ("Pls.' S.J. Opp. Mem."), at 4 ("Kozera I was the impetus to IBEW's Trusteeship."). The IBEW did not conduct a hearing at that time.
8. The 1986-89 CBA expired in May 1989 and the NECA Chapter and Local 501 negotiated and signed the 1989-92 CBA. Stip. Facts ¶¶ 14-15. The 198992 CBA contained an Inside Agreement and a Residential Agreement which provided for annual incremental wage increases. Id. ¶ 15.
9. On March 29, 1991, Barry authorized International Vice-President Donald Funk ("Funk") to hold a (show cause) hearing to determine if some or all of eleven charges against Local 501 provided sufficient cause to take charge of Local 501's affairs pursuant to IBEW Constitution, Article IV, § 3(9).*fn9 Id. ¶ 19. On April 11, 1991, Funk sent Local 501 a written notice of hearing, including a description of the eleven charges and the text of Article IV, § 3(9). Id. ¶ 20; Hayes Aff., Ex. 29 (Any member has "the right . ...

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