FINDINGS OF FACT AND CONCLUSIONS OF LAW
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)
(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
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.
For the reasons set forth below, the Court enters judgment:
(1) in favor of the
IBEW on Plaintiffs Article IV, § 3(9) and Trusteeship claims;
(2) in favor of Plaintiff and against the IBEW and the NECA
Chapter on Plaintiffs Small Work Agreement claims; and (3) in
favor of the IBEW, the NECA Chapter, and Local 501 on Plaintiffs
Pavillion Project claim.
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. 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. 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. . . .").
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 . . . to appear at the hearing to
give testimony or present other evidence in
support of or in opposition to the International
10. The show cause hearing commenced on Wednesday,
May 8, 1991 and concluded on May 16, 1991. Stip.
Facts ¶ 22. Hill presented the IBEW's case in two
days and submitted 98 exhibits. Id. ¶ 25; see
affidavit of Hill, dated March 20, 1992 ("1992
Hill Aff."), ¶ 8. George Horrigan, Local 501's
Business Manager, presented Local 501's defense in
three and a half days and submitted 72 exhibits.
Id.; see Hayes Aff., Ex. 40. Among others,
several NECA Chapter contractors, the NECA Chapter
Executive Director, Bruce DeShay ("DeShay"), and
twelve Local 501 members testified. Affidavit of
Hill, dated April 5, 1993, ¶ 8 (twenty-eight Local
501 members signed up to testify, but some
"declined to testify when their turn came").
Kozera did not testify at the hearing, (Stip.
Facts ¶ 23), and appears not to have assisted
Local 501's officers in preparing a defense to the
charges. Id. ¶ 24.
11. On May 23, 1991, Funk recommended to Barry
that Local 501 be placed under International
Charge. Id. ¶ 27; Hayes Aff., Ex. 40.
12. On or about July 1, 1991, Barry sustained nine
of the eleven charges and placed Local 501 under
International Charge, effective July 5, 1991.
Stip. Facts ¶¶ 30, 31; 1992 Hill Aff., Ex. 3, p. 30
("I have sustained Charges Nos. 2, 3, 4, 5, 6, 7,
8, 10 and 11 against Local 501.")
13. Pursuant to the IBEW Constitution, Article IV,
§ 4, Barry authorized Vice President Funk to take
charge of the affairs of Local Union 501 under the
Trusteeship. Stip. Facts ¶ 31. Vice President Funk
assigned Hill and David Sager ("Sager") to
represent him as trustees (collectively,
"Trustees") in administering the affairs of Local
Union 501. Id.
14. In July 1991, DeShay contacted Hill to discuss
the NECA Chapter's proposal to amend the 1989-92
CBA, Affidavit of Deshay, dated April 7, 1993, ¶¶
19-20, and informed Hill that the NECA Chapter and
Local 501 discussed the proposed amendment at a
June 3, 1991 Joint Labor-Management Committee
meeting. Id. At the June 3, 1991 meeting, the
NECA Chapter requested that, due to economic
conditions and lack of work, Local 501 reconsider
a wage increase scheduled for July 27, 1991. Stip.
Facts ¶ 28.
15. Article 1, § 1.03 of the 1989-92 CBA provides:
"Any . . . change or supplement agreed upon shall
be reduced to writing, signed by the parties
hereto, and submitted to the International Office
of the IBEW and the National Office of NECA for
approval, the same as this Agreement." Id. ¶ 15.
16. On July 24, 1991, the Trustees and the NECA
Chapter negotiated a Memorandum of Understanding
to revise the 1989-92 CBA by deferring the wage
increase scheduled to take effect on July 27, 1991
for one year and extending the 1989-92 CBA for one
additional year. Id. ¶ 33. On August 16, 1991,
International President Barry stamped the
Memorandum of Understanding "APPROVED." Hayes
Aff., Ex. 47.
17. In August and September 1991, Kozera and
Mekeel circulated a petition challenging the
actions referred to in ¶ 16 above by the Trustees.
Id. ¶ 35; 1993 Sloan Aff., Ex. 18 ("[W]e have
been denied the right of ratification, and our
negotiated wage increase. . . . Four Rank-and-File
Local 501 members are going to Federal Court to
put a stop to this collusion.").
18. On January 20, 1992, after further
negotiations with the NECA Chapter, the Trustees
submitted a Revised 1989-92 CBA to International
President Barry, containing the wage deferral and
extension amendments negotiated on July 24, 1991,
and a Small Work Agreement.*fn10 Stip. Facts ¶
36; 1993 Sloan Aff., Ex. 3.
19. The IBEW Constitution, Article XVII, § 6
provides in part:
. . . All bylaws, amendments and rules, all
agreements, jurisdiction, etc. of any kind or nature,
shall be submitted in duplicate form to the I.P. for
approval. . . . No. L.U. [local union] shall put into
effect any bylaw, amendment, rule or agreement of any
kind without first securing such approval. . . .
Article IV, § 3(13) of the IBEW Constitution
The I.P. or his representatives shall not enter into
agreements affecting wages, hours and conditions of
employment where local union agreement, covering such
employment already exists, without first notifying at
least thirty (30) days in advance of such agreements,
the local unions so concerned or affected, in a
district, and then only by procuring consent of a
majority of the local unions in the district or the
individual local union affected by this agreement.
20. On March 19, 1992, IBEW Referral Officer, W.
Dennard Gore issued a letter to "all inside
journeymen and apprentices" advising them how to
apply for work under the Small Work Agreement.
1993 Sloan Aff., Ex. 32; Defendants' Contentions
of Disputed Facts ¶ 15 ("In or about April 1992,
during the term of the Trusteeship, the Trustee[s]
and [the NECA] Chapter put into effect the small
21. On March 20, 1992, Barry approved the Revised
1989-92 CBA, but not the Small Work Agreement
which, in fact, he stamped "NOT APPROVED." 1993
Sloan Aff., Ex. 3, Letter from Barry to Hill,
dated March 20, 1992 ("Barry Letter") ("Approval
of Article VIII, Small Work, is being withheld
pending further investigation of its
implementation. It is suggested by this office,
that if the parties wish to do this type of work,
that they negotiate a separate agreement that
could stand on its own. . . . The agreement has
been approved, with the exception of Article
VIII. . . ."). Barry did not later approve this
Small Work Agreement.*fn11
22. At a meeting held April 8, 1992 of the Inside
Joint Labor-Management Committee, NECA Chapter
members and the Trustees discussed the Barry
Letter. 1993 Sloan Aff., Ex. 11.
23. The IBEW's Trusteeship over Local 501 was
terminated in June 1992. Stip. Facts ¶ 44.
24. Local 501 and the NECA Chapter continued the
Small Work Agreement implemented during the
Trusteeship until September 1992. See
Defendants' Contentions of Disputed Facts ¶ 18.
Thereafter, the NECA Chapter and Local 501
negotiated a (new) Small Work Agreement which was
ratified by the membership of Local 501 in
September 1992, and approved by International
President Barry on October 27, 1992. Stip. Facts ¶
25. Kozera has not been "suspended" by the
Defendants (or otherwise disciplined) and "Kozera
does not seek any money damages in this case."
Id. ¶ 45; Transcript of Conference held before
the Court January 5, 2001, at 4 ("Mr. Kozera has
stated on numerous occasions that he was not
interested in damages in this case."). Kozera has
advised the Court on many occasions that he is not
III. Conclusions of Law
Jurisdiction and Venue
1. This Court has subject matter jurisdiction
pursuant to § 301(a) of the LMRA and §§ 102 and 304
of the LMRDA. Venue is proper in the Southern
District of New York pursuant to 28 U.S.C. § 1391.
Pretrial Order at p. 3, ¶ 2(1).
Burden of Proof