United States District Court, S.D. New York
February 9, 2005.
HARRY FARRELL, JOHN SUGRUE, LUCIA GIACOMETTI, DANIEL McNAMARA, LISA VELLA and JOHN DUFFY, Plaintiffs,
EMANUEL HELLEN, individually and as President of the LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; JERRY WATERS, individually and as Vice President of LOCAL 1-2 UTILITY WORKERS UNION OF AMERICA; ROBERT CONETTA, as Secretary-Treasurer of LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; ROBERT O'BRIEN, individually and as Chairman of the Executive Board of LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; RONALD DAVIS, individually and as General Counsel of LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; and LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA, Defendants.
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This case arises out of conflict between factions of Local 1-2
("Local 1-2 or the "Union") of the Utility Workers Union of
America (the "UWUA"). Plaintiffs Harry Farrell, John Sugrue,
Lucia Giacometti, and John Duffy are present or former elected
officials of Local 1-2. They generally allege that the defendants
abridged their rights to free speech and due process by removing
them from office or diminishing their responsibilities and by
subjecting them to unfair disciplinary proceedings, all in
violation of Title 1 of
the Labor Management Reporting and Disclosure Act (the "LMRDA,"
commonly known as the "Landrum-Griffin Act"), 29 U.S.C. § 401 et
seq.; § 301 of the Labor-Management Relations Act (the "LMRA,"
commonly known as the "Taft-Hartley Act"), 29 U.S.C. § 185; and
the plaintiffs' contractual rights as established by Local 1-2's
bylaws and the UWUA constitution. Plaintiffs Daniel McNamara and
Lisa Vella are members of Local 1-2 who allege that the actions
taken against the other plaintiffs deprive them of their right to
elect union officers of their choice as guaranteed by the
Landrum-Griffin Act. Finally, all of the plaintiffs assert that
their union voting rights were violated by the manner in which an
election was held to replace the ousted dissident officers. The
defendants consist of Local 1-2 and the officers who held control
during the relevant period: Emanuel Hellen, the President; Jerry
Waters, the Vice President; Robert Conetta, the
Secretary-Treasurer; and Robert O'Brien, Chairman of the
All parties agreed to proceed before me for all purposes
pursuant to 28 U.S.C. § 636(c). Following completion of
discovery, the plaintiffs moved for partial summary judgment,
while defendant Waters cross-moved for summary judgment
dismissing the claims asserted against him. For the reasons set
forth below, each motion is granted in part and denied in part.
In November 2002, plaintiffs Farrell, Sugrue, Giacometti, and
Duffy were elected as officers of Local 1-2. (Affidavit of Harry
Farrell dated July 21, 2004 ("Farrell Aff."), ¶ 2). Mr. Farrell
was elected as a Senior Business agent, while Mr. Sugrue, Ms.
Giacometti, and Mr. Duffy were elected as Business Agents.
(Farrell Aff., ¶ 2). At some point they became disaffected with
the controlling group of the Union leadership and began
discussing the need for change.
In February 2003, Mr. Farrell called Harcourt Cordew, another
Business Agent of Local 1-2, and arranged a lunch meeting on
February 25. (Affidavit of Emanuel Hellen dated June 9, 2003
("Hellen Aff."), at 3rd unnumbered page). At that meeting, Mr.
Farrell, along with Mr. Sugrue and Ms. Giacometti, complained
about the conduct of the Union President, Mr. Hellen, and
discussed two proposed amendments to the Union bylaws that they
wished to bring to the membership: one which would mandate drug
and alcohol testing for Union officers and another which would
provide for the election of a new Union President and Vice
President in the event that the incumbent President resigned.
(Deposition of Emanuel Hellen ("Hellen Dep."), attached as Exh. 5
to Affirmation of Sidney H. Kalban dated July 22, 2004 ("Kalban
Aff."), at 20-27; First Amended Complaint ("FAC"), Exh. 1). The
next day, Mr. Cordew reported what had transpired to Mr. Hellen.
(Hellen Aff. at 3rd unnumbered page).
Mr. Hellen immediately placed Mr. Farrell, Mr. Sugrue, and Ms.
Giacometti on administrative leave with pay. (Hellen Dep. at 34).
The day after that, he issued internal union disciplinary charges
against the dissidents, alleging that they "committed and/or
in malfeasance, misfeasance, nonfeasance, neglect of duty,
improper performance of duty, misuse of office, defamation of
character of Union Officers and committing [sic] willful harm to
the Local Union." (FAC, Exhs. 2, 3, 4 (the "initial charges")).
One set of allegations was unique to Mr. Farrell and related to
his telephone conversation with Mr. Cordew:
On February 25, 2003 the accused, in a telephone call
with Business Agent Harcourt Cordew:
Referred to President Emanuel Hellen and
Vice-President Gerald Waters in a disparaging manner
and otherwise defamed them and referred to them as
He admitted to conspiring with National
Vice-President Joseph Flaherty regarding the
management of the Local and the drafting of new
By-Laws to prevent Vice-President Waters from
He challenged the authority of President Hellen and
Vice-President Waters to implement policies and
programs to make Business Agents more accountable.
He acknowledged working with others to take control
of the union by altering the existing By-Laws so that
he could run for President.
(FAC, Exh. 2). The remaining charges were common to all three
dissidents and stemmed from the lunch meeting:
On February 25, 2003 Cordew met with Agents Farrell,
Giacometti and Sugrue and:
Listened to them defame Hellen and Waters and
otherwise plot against the Union.
Giacometti, Sugrue and Farrell challenged the
authority of Hellen and Waters to implement polices
and procedures to make Business Agents more
accountable. They continually referred to President
Hellen as a Drunk and Vice-President Waters as being
abusive and pushing them too hard. They acknowledged
Flaherty to alter the existing By-Laws so Farrell
could run for President, in violation of direct
orders of the President during a staff meeting on
January 3, 2003.
During the meeting they continually referred to
Hellen and Waters as "Mother-Fuckers."
(FAC, Exhs. 2, 3, 4).
Shortly thereafter, Mr. Hellen initiated an action against Mr.
Farrell, Mr. Sugrue, and Ms. Giacometti in New York State Supreme
Court, Nassau County. (Hellen Dep. at 124-27; FAC ¶ 12; Answer ¶
3).*fn2 However, he withdrew the case without prejudice on
March 19, 2003. (FAC ¶ 37; Ans. ¶ 3). In the meantime, Mr.
Hellen, together with Mr. Waters, sent a bulletin dated March 4
to all union members describing the basis for the charges against
the dissidents and arguing that "[i]t would seem that the three
Officers placed on Administrative Leave with Pay want things to
go back to the way they were before. We must not let that
happen." (Farrell Aff., Exh. 2).
On March 11, 2003, Mr. Hellen filed amended disciplinary
charges (the "amended charges") against Mr. Farrell, Mr. Sugrue,
and Ms. Giacometti (the "Charged Members"). With respect to Mr.
Farrell, additional charges alleged that he had failed to process
a number of union grievances in a timely manner and had failed to
report to the union office on a daily basis as Mr. Waters had
ordered him to. (FAC, Exh. 10, ¶¶ 1, 2). The amended charges also
included assertions about a telephone call that Mr. Farrell had
with Mr. Cordew on February 19, 2003, in which he complained
Union leadership and its policies and stated that Mr. Hellen was
always drunk. (FAC, Exh. 10, ¶ 3). The amended charges against
Mr. Sugrue alleged that he, too, had failed to process members'
grievances quickly. (FAC, Exh. 11, ¶ 2). Finally, the new charge
against Ms. Giacometti was that she misrepresented her
whereabouts to Mr. Waters on the day that she and the other
dissidents met with Mr. Cordew. (FAC, Exh. 12, ¶ 2). In addition,
the original allegations were carried over into each of the
amended charges. (FAC, Exh. 10, ¶¶ 4, 5; Exh. 11, ¶ 1; Exh. 12, ¶
Pursuant to Local 1-2's bylaws, the charges were to be
adjudicated by a Trial Committee, chaired by defendant Robert
O'Brien. (FAC, Exh. 9). The Union's General Counsel, Ronald
Davis, served as counsel to the Trial Committee. (FAC, Exh. 9).
The hearing, which took place on April 1, and 2, 2003, was
preceded by procedural skirmishing. For example the Charged
Members requested a copy of the affidavit of Harcourt Cordew on
which the charges were based. (FAC, Exh. 7). Mr. O'Brien
initially denied that request (FAC, Exh. 9), but he later
relented and provided the document on March 28. (FAC, Exh. 17;
Farrell Aff. ¶ 12). Similarly, the Charged Members demanded
access to their files in the Union offices and to the files
pertaining to grievances that they had allegedly not processed
promptly. (FAC, Exhs. 13, 16). Mr. O'Brien declined to let them
enter the Union premises but sent most of the requested grievance
files on March 28. (FAC, Exh. 17; Farrell Aff. ¶ 12). And,
although the Charged Members requested an adjournment of the
hearing because their attorney would not be available to consult
with them outside the hearing room on the scheduled hearing date,
Mr. O'Brien denied that request. (FAC, Exhs. 13, 15, 16, 17).
When the hearing took place, the Charged Members continued to
clash with Mr. O'Brien. He would not let them ask questions about
the amendment of the charges (Trial Transcript ("Trial Tr."),
attached as Exh. 1 to Farrell Aff., at 205-07), introduce the
proposed bylaws as exhibits (Trial Tr. at 360), or ask questions
about disparate treatment. (Trial Tr. at 268-72). Mr. O'Brien
instructed the members of the Trial Committee that they could
vote only on whether to expel the Charged Members and that no
other form of discipline could be considered. (Deposition of
Robert O'Brien ("O'Brien Dep"), attached as Exh. 2 to Kalban
Aff., at 157). Following the submission of the evidence, a
majority of the Trial Committee voted to sustain all charges
against each of the Charged Members, except for the charge of
defamation which had been withdrawn by Mr. Hellen during the
hearing. (Kalban Aff., Exh. 14; FAC, Exh. 18). Mr. O'Brien then
issued a "Report of the Trial Committee" which summarized the
evidence and the committee's recommendations and was circulated
to all Union members. (FAC, Exh. 18).
On April 13, 2003, there was a general membership meeting of
Local 1-2 at which the Trial Committee's recommendation was put
to a vote. That portion of the meeting was chaired by defendant
Waters, who limited each Charged Member's time to speak to ten
minutes. (Hellen Dep. at 233, 235). He also dictated the order of
the speakers and told Mr. Farrell that if he did not go first, he
would not be permitted to speak at all. (Deposition of Jerry
Waters ("Waters Dep."), attached as Exh. 1 to Kalban Aff., at
181-83). After the Charged Members spoke, Mr. Hellen addressed
the membership, and then the Trial Committees Report was put to a
vote. (Waters Dep. at 197-98).
The ballot used to record each member's vote asked only whether
the member approved or disapproved the Trial Committees Report as
to each Charged Members; it did not solicit separate votes on
each charge. (FAC, Exh. 19). In close votes, the membership
approved the Trial Committee's recommendations with respect to
Mr. Farrell and Mr. Sugrue but rejected them with respect to Ms.
Giacometti. (Kalban Aff., Exh. 14). Accordingly, Ms. Giacometti
was restored to her position while Mr. Farrell and Mr. Sugrue
were removed from office. The deposed officers then filed an
appeal with the UWUA.
On September 25, 2003, a membership meeting was held at which
the Union members were asked to ratify the appointment of
officers whom Mr. Hellen had chosen to replace Mr. Farrell and
Mr. Sugrue. That meeting was chaired by Mr. Hellen and can best
be described as chaotic. (Affidavit of Paul Albano dated July 21,
004 ("Albano Aff.", Exh. 1; Kalban Aff., Exh. 19). Plaintiff John
Duffy, who had testified on behalf of the Charged Members at the
Trial Committee hearing, repeatedly tried to raise a point of
order but was not recognized by Mr. Hellen. (Albano Aff., Exh.
1). No discussion was held on the proposal to ratify the
appointments, a voice vote was taken, and the motion was declared
to have passed. (Albano Aff., Exh. 1). When Mr. Duffy asked for a
division of the
house on that issue, he was ignored. (Albano Aff., Exh. 1). At
one point a fight broke out, and a member who was videotaping the
proceedings was directed to stop doing so. (Albano Aff., Exh. 1).
On March 2, 2004, the UWUA issued a decision vacating the
determinations of the Trial Committee. (Farrell Aff., Exh. 4). It
found that the hearing was plagued by numerous procedural flaws
that violated the due process requirements of the UWUA
constitution and Local 1-2's bylaws. (Farrell Aff., Exh. 4 at
9-11). Local 1-2 has indicated its intent to conduct a new trial
with respect to the charges against Mr. Farrell and Mr. Sugrue,
and it has not returned them to office.
The plaintiffs filed the original complaint in this action in
June 2003 and amended it with leave of court in April 2004. The
First Amended Complaint contains nine claims, and the plaintiffs
seek summary judgment on liability on the First, Fourth, Fifth,
and Eighth Causes of Action, while defendant Waters seeks
dismissal of all of the plaintiffs' claims insofar as they
pertain to him. I will therefore address each cause of action in
A. Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c); accord Marvel
Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002);
Andy Warhol Foundation for the Visual Arts, Inc. v. Federal
Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999). The moving
party bears the initial burden of demonstrating "the absence of a
genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Where the moving party meets that burden,
the opposing party must come forward with "specific facts showing
that there is a genuine issue for trial," Fed.R.Civ.P. 56(e),
by "a showing sufficient to establish the existence of [every]
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex,
477 U.S. at 322.
In assessing the record to determine whether there is a genuine
issue of material fact, the court must resolve all ambiguities
and draw all factual inferences in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995).
But the court must inquire whether "there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party," Anderson, 477 U.S. at 249 (citation omitted), and
grant summary judgment where the nonmovant's evidence is
conclusory, speculative, or not significantly probative. Id. at
249-50. "The litigant opposing summary judgment may not rest upon
mere conclusory allegations or denials, but must bring forward
some affirmative indication that his version of relevant events
is not fanciful." Podell v. Citicorp Diners Club, Inc.,
112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations
omitted); accord Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (a nonmoving party "must do more than simply show that
there is some metaphysical doubt as to the material facts");
Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14,
18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory
statements or on contentions that the affidavits supporting the
motion are not credible"). In sum, if the court determines that
"the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no `genuine issue
for trial.'" Matsushita, 475 U.S. at 587 (quoting First
National Bank of Arizona v. Cities Service Co., 391 U.S. 253,
B. First Cause of Action Free Speech
Title I of the LMRDA is the "Bill of Rights of Members of Labor
Organizations." Section 101(a)(2), entitled "Freedom of speech
and assembly," provides:
Every member of any labor organization shall have the
right to meet and assemble freely with other members;
and to express any views, arguments, or opinions; and
to express at meetings of the labor organization his
views, upon candidates in an election of the labor
organization or upon any business properly before the
meeting, subject to the organization's established
and reasonable rules pertaining to the conduct of
meetings: Provided, That nothing herein shall be
construed to impair the right of a labor organization
to adopt and enforce reasonable rules as to the
responsibility of every member toward the
organization as an institution and to his refraining
from conduct that would interfere with its
performance of its legal or contractual obligations.
29 U.S.C. § 411(a)(2). Further, a union may not "fine, suspend,
expel, or otherwise discipline any of its members for exercising
any right to which he is entitled under the provisions of [Title
I]." 29 U.S.C. § 529. The LMRDA creates a cause of action for a
member whose rights have allegedly been violated.
29 U.S.C. § 412. The freedom of speech provision of the LMRDA applies to
elected union officials and, as with all union members, protects
them from retaliation for expressing their views on union
matters. See Sheet Metal Workers' International Association v.
Lynn, 488 U.S. 347
, 353-55 (1989); Maddalone v. Local 17,
United Brotherhood of Carpenters and Joiners of America,
152 F.3d 178
, 183 (2d Cir. 1998).
Consistent with the LMRDA's basic purpose of "`ensuring that
unions [are] democratically governed and responsive to the will
of their memberships,'" Lynn, 488 U.S. at 352 (quoting
Finnegan v. Leu, 456 U.S. 431, 436 (1982)), a union member's
right to free speech is broadly construed. Thus, "criticism of
union officers, even when it amounts to slander, is protected
speech under the LMRDA[.]" Petramale v. Local No. 17 of Laborers
International Union of North America, 736 F.3d 13, 16 (2d Cir.
1984); see also Cole v. Hall, 462 F.2d 777 (2d Cir. 1972),
aff'd, 412 U.S. 1 (1973); Salzhandler v. Caputo, 316 F.2d 445
(2d Cir. 1963); Perez v. Local Union No. 30, International Union
of Operating Engineers, No. 98-CV-362, 1999 WL 684156, at *4
(E.D.N.Y. July 12, 1999). Moreover, even if a union member faces
legitimate, non-speech-related charges, he may not be disciplined
if those charges are intertwined with charges that violate his
free speech rights. See Schermerhorn v. Local 100, Transport
Workers Union, 91 F.3d 316, 324 (2d Cir. 1996); Petramale,
736 F.2d at 16-18; Perez, 1999 WL 684156, at *5-6; Pearl v.
Tarantola, 361 F. Supp. 288, 291 (S.D.N.Y. 1973).
By these standards, the rights of Mr. Farrell, Mr. Sugrue, and
Ms. Giacometti were plainly violated. It is undisputed that they
were subjected to discipline. And it cannot be denied that a
major part of the charges related to their speech: their advocacy
of amendments to the bylaws and their criticism of defendants
Hellen and Waters. The Union defendants (Local 1-2, Mr. Hellen,
Mr. O'Brien and Mr. Conetta) do not proffer evidence that would
contradict this conclusion but instead advance several legal
arguments, none of which has merit.
First, the defendants maintain that the plaintiffs have failed
to exhaust internal Union remedies, since the retrial of the
charges against Mr. Farrell and Mr. Sugrue has not yet taken
place. But while a Union member "may be required to exhaust
reasonable hearing procedures," that requirement no longer
applies after charges have been pending for more than four
months. 29 U.S.C. § 411(a)(4); see also Schermerhorn,
91 F.3d at 325. Here, since the original charges were filed in February
2003, the four-month period for exhaustion lapsed long ago. The
defendants nevertheless argue that the exhaustion requirement
revived when the UWUA vacated the disciplinary determinations and
remanded for a retrial. That position is untenable, since it
would mean that a union could extend indefinitely the period for
requiring exhaustion by repeatedly denying charged members a
proper due process hearing. And, in any event, the UWUA issued
its decision in March 2004, again well more than four months ago.
Furthermore, even if it were still timely for the defendants to
raise an exhaustion argument, enforcement of the requirement is
discretionary. See Maddalone, 152 F.3d at 186;
Schermerhorn, 91 F.3d at 325; Monaco v. Smith, No. 00 Civ.
5845, 2004 WL 203009, at *5 (S.D.N.Y. Feb. 2, 2004). A court's
exercise of that discretion is informed by three factors:
[F]irst, whether union officials are so hostile to
the employee that he could not hope to obtain a fair
hearing on his claim; second, whether the internal
union appeals procedures would be inadequate either
to reactivate the employee's grievance or to award
him the full relief he seeks . . .; and third,
whether exhaustion of internal procedures would
unreasonably delay the employee's opportunity to
obtain a judicial hearing on the merits of his claim.
Maddalone, 152 F.3d at 186 (quoting Clayton v. International
Union, United Automobile, Aerospace, & Agricultural Implement
Workers of America, 451 U.S. 679
, 689 (1981)). The burden is on
the union to show that its procedures meet these requirements.
Id. Yet in this case, the defendants have made no such showing.
For example, an internal union procedure need not be exhausted if
it does not offer all of the relief sought by the plaintiff,
including monetary damages. See id. at 187. Here, the
plaintiffs seek damages, and there is no evidence that such
relief is available through Local 1-2's hearing procedures. Thus,
no exhaustion requirement bars the plaintiffs' claims.
Second, the defendants argue that they cannot be liable for
violating the plaintiffs' freedom of speech because the
plaintiffs were not chilled in the exercise of their rights; they
continued to vigorously challenge the union leadership. The
defendants appear to contend that unless the plaintiffs were
deterred from speaking, they suffered no injury. But, in fact,
the Charged Members were
quite tangibly injured: they were removed from their positions as
Third, the defendants contend that the plaintiffs were properly
disciplined for charges independent of their exercise of free
speech: Mr. Farrell and Mr. Sugrue for delaying the processing of
grievances and Ms. Giacometti for misrepresenting her
whereabouts. The defendants argue that the court's decision in
Petramale is distinguishable because in that case the invalid
charges (that the union member had slandered union officers) and
the potentially valid charges (that he had engaged in disruptive
conduct) arose from the very same incident. See Petramale,
736 F.2d at 18.
To be sure, the Union asserted distinct charges against the
plaintiffs in this case. But it then presented the membership
only with the choice of approving or disapproving the Trial
Committee's verdicts and it imposed the single undifferentiated
sanction of expulsion from office on each of the accused members.
Thus, the circumstances here are similar to those in Pearl
where, in addition to being charged with speech-related
activities, the plaintiff was accused of precipitating a work
stoppage. 361 F. Supp. at 291. The court there found that "[t]he
charges were never presented to the membership except as a
`bundle' and it is impossible to determine which was the basis of
the Union membership determination to expel [the plaintiff]."
Id. So it is here, and the defendants, as in Pearl, must live
with the consequences of having failed to separate permissible
from impermissible grounds for discipline.
The plaintiffs having demonstrated that their free speech
rights were violated, the next step is to determine which
defendants in addition to Local 1-2 itself may be subject to
summary judgment. A union official is liable not only if he
directly abridges a member's free speech rights, but also if he
"aids, abets, instigates, or directs a wrongful use of union
power to deprive a member of his rights[.]" Schermerhorn,
91 F.3d at 324 (quoting Rosario v. Amalgamated Ladies Garment
Cutters' Union, Local 10, I.L.G.W.U., 605 F.2d 1228, 1246 (2d
Cir. 1979)). Thus, Mr. Hellen is subject to liability. There is
no dispute that he initiated the disciplinary charges that
infringed the plaintiffs' rights.
The plaintiffs contend that Mr. O'Brien participated in the
drafting of the amended charges, and, while he seemed to
acknowledge this during the Trial Committee proceedings, he
testified in his deposition that he had been mistaken. (Trial Tr.
at 234; O'Brien Dep. at 29, 32, 40). Although this issue is
therefore contested, other undisputed facts establish Mr.
O'Brien's liability for aiding and abetting the violations of the
plaintiffs' rights. He chaired the Trial Committee, instructed
that body as to the disciplinary sanctions that would be imposed,
and issued the report to be voted on by the membership. His role
was thus integral to the infringement of the plaintiffs' freedom
The liability of the remaining individual defendants on the
First Cause of Action is more problematic. The plaintiffs have
failed altogether to specify the role of Mr. Conetta. Mr. Waters
has himself moved for summary judgment, arguing that he did not
initiate any charges against the plaintiffs, did not vote on the
charges, did not participate in drafting the Trial Committee
report, and did not remove the plaintiffs from office.
Nevertheless, there is evidence that Mr. Waters participated in a
collective decision to bring charges against the accused
plaintiffs and to suspend them from office (Hellen Aff. at 3rd
and 4th unnumbered pages), that he represented Mr. Hellen in the
Trial Committee proceedings (Affidavit of Jerry Waters dated
Sept. 9, 2004, ¶ 14), and that he was responsible for limiting
and dictating the order of the plaintiffs' presentations at the
April 30, 2003 membership meeting. (Hellen Dep. at 233, 235;
Waters Dep. at 181-83). Whether such conduct is sufficient to
constitute aiding and abetting liability is a matter for the jury
The plaintiffs' motion for summary judgment as to liability on
the First Cause of Action is therefore granted with respect to
defendants Hellen, O'Brien, and Local 1-2, and is otherwise
denied. Mr. Waters' cross-motion is denied. No relief is
appropriate at this juncture. If Mr. Farrell and Mr. Sugrue are
ultimately disciplined on the basis of legitimate charges
unrelated to their speech, their recovery may be limited to
nominal damages. See Perez, 1999 WL 684156, at *7. On the
other hand, the plaintiffs may be able to prove that by bringing
even the seemingly valid charges, the defendants violated their
A plaintiff may prove that an otherwise lawful act by
a union official violated the LMRDA, where the
complained of act was part of a series of oppressive
acts by the union leadership that directly threatened
the freedom of members to speak out. In order to
prevail on such a claim, a plaintiff must prove that
the complained of act was not merely an isolated act
of retaliation, but was part of a purposeful and
deliberate attempt to suppress
dissent within the union.
Schermerhorn, 91 F.3d at 323 (quoting jury charge with
approval); see also Maddalone, 152 F.3d at 184-85. In that
event, the plaintiffs could be entitled to more substantial
monetary damages as well as injunctive relief. Whether such a
pattern of oppression existed, however, is an issue fraught with
factual disputes and must be decided by the jury.
B. Second Cause of Action Due Process
The Second Cause of Action charges that the defendants violated
the due process rights of Mr. Farrell, Mr. Sugrue, and Ms.
Giacometti as guaranteed by section 101(a)(5) of the LMRDA. (FAC,
¶¶ 158-162). That section provides:
No member of any labor organization may be fined,
suspended, expelled, or otherwise disciplined except
for nonpayment of dues by such organization or by any
officer thereof unless such member has been (A)
served with written specific charges; (B) given a
reasonable time to prepare his defense; (C) afforded
a full and fair hearing.
29 U.S.C. § 411(a)(5). The plaintiffs have not moved for summary
judgment on this claim, but Mr. Waters has moved for judgment
insofar as it pertains to him.
Mr. Waters is named in several discrete subsections of this
cause of action. In paragraph 161(T) of the First Amended
Complaint, the plaintiffs allege that he violated their rights by
engaging in ex parte conversations with Mr. Hellen, Mr. Davis
(Local 1-2's counsel), and some of the Trial Committee members
during the course of the Trial Committee hearing. (FAC, ¶
161(T)). While Mr. Waters denies any such conversations
(Deposition of Jerry H. Waters,
attached as Exh. 1 to the Reply Affirmation of Sidney H. Kalban
dated Oct. 18, 2004 ("Kalban Reply Aff."), at 146-47), the
plaintiffs insist that they took place. (Deposition of Harry
Farrell, attached as Exh. 3 to Kalban Reply Aff., at 58;
Deposition of John Sugrue ("Sugrue Dep."), attached as Exh. 4 to
Kalban Reply Aff., at 154-57). Taking the plaintiffs' testimony
as true, it is nevertheless insufficient to establish a violation
of their fair hearing rights. An ex parte discussion between
an advocate and an adjudicator is not a per se violation of
due process. See Clifford v. United States, 136 F.3d 144, 149
(D.C. Cir. 1998); In re Paradyne Corp., 803 F.2d 604, 612 (11th
Cir. 1986). Furthermore, in this case the plaintiffs have
presented no evidence of the content of any ex parte
communications. Although Mr. Sugrue suggests that because the
Trial Committee members asked pertinent questions, they must have
been coached (Sugrue Dep. at 156), this is entirely speculative.
In paragraphs 161 (AA) through 161 (LL), the plaintiffs allege
that Mr. Waters and others denied Mr. Farrell and Mr. Sugrue
their due process rights by the manner in which the April 30,
2003 membership meeting was conducted. (FAC, ¶¶ 161 (AA) 161
(LL)). However, the LMRDA mandates only a fair hearing, and
although an additional membership vote may be required by union
bylaws, federal law does not require that that meeting be
conducted according to any particular procedure. See Dunleavy
v. Radio Officers Union, District No. 3, National Marine
Engineers Beneficial Association, AFL-CIO, Civ. A. No. 89-2958,
1992 WL 210575, at *12 (D.N.J. Aug.
31, 1992); Kiepura v. Local Union 1091, United Steelworkers of
America, 358 F. Supp. 987, 992 (N.D. Ill. 1973). These
allegations can therefore not serve as the basis for an LRMDA
Finally, the plaintiffs suggest in their brief that Mr. Waters
aided and abetted other defendants in violating the Charged
Members' due process rights as, for example, when he made certain
evidentiary objections that were sustained by the Trial Committee
chair, Mr. O'Brien. These allegations were not included in the
complaint, however, and, at any rate, are too vague to survive
summary judgment. Mr. Waters shall therefore be granted judgment
dismissing the claims against him in the Second Cause of Action.
C. Third Cause of Action Free Speech of Plaintiffs McNamara
In the Third Cause of Action, the plaintiffs allege that in
disciplining plaintiffs Farrell, Sugrue, and Giacometti for their
dissent, the defendants violated the rights of Lisa Vella and
Daniel McNamara by deterring them from exercising their own free
speech rights. (FAC, ¶¶ 163-165). Again, only Mr. Waters has
moved for summary judgment on this claim.
Mr. Waters acknowledges that union members whose rights have
not been directly infringed may nevertheless assert a claim on
the basis of the chilling effect of a pattern of oppression.
See Bentivegna v. Fishman, No. 02 Civ. 4028, 2002 WL 1586957,
at *13-14 (S.D.N.Y. July 17, 2002). Nevertheless, he argues that
the actions taken against the charged defendants are not
constitute a pattern.*fn3
That is not the case. To begin with, the limited duration of
the acts alleged is not dispositive. "[A] dissenting faction need
not endure years of harassment before a . . . claim will lie."
Maddalone, 152 F.3d at 184. Acts of sufficient severity can
constitute a pattern of oppression even if they do not span a
protracted period of time. See Bentivegna, 2002 WL 1586957,
at *14. Here, there is evidence not only that charges were
brought against elected officers because they criticized the
entrenched faction and attempted to amend the union bylaws, but
also that the hearing process and membership meetings were
manipulated to achieve convictions, and that the dissident
officers were even haled into court on defamation charges. It
cannot be determined as a matter of law that such actions are not
serious enough to qualify as a pattern of oppression that would
chill the rights of other Union members. That is an issue for the
jury, and Mr. Waters' motion for judgment on this claim is
D. Fourth Cause of Action Violation of UWUA Constitution
The plaintiffs allege in the Fourth Cause of Action that
various procedural defects in the disciplinary proceedings
violated the rights of Mr. Farrell, Mr. Sugrue, and Ms.
Giacometti under the UWUA constitution. (FAC, ¶¶ 166-178). The
Union defendants have not explicitly addressed this claim.
Section 301(a) of the LMRA provides:
Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce as defined in this
chapter, or between any such labor organizations, may
be brought in any district court of the United States
having jurisdiction of the parties, without respect
to the amount in controversy or without regard to the
citizenship of the parties.
29 U.S.C. § 185(a). "Union constitutions are considered
`contracts within the meaning of § 301' and `individual union
members may bring suit under § 301 for violation of a union
constitution.'" Monaco, 2004 WL 203009, at *10 (quoting
Schepis v. Local Union No. 17, United Brotherhood of Carpenters
and Joiners of America, 989 F. Supp. 511, 516-17 (S.D.N.Y.
1998)); see also Wooddell v. International Brotherhood of
Electrical Workers, Local 71, 502 U.S. 93, 101 (1991); Wall v.
Construction & General Laborers' Union, Local 230, 224 F.3d 168
178 (2d Cir. 2000); Shea v. McCarthy, 953 F.2d 29
, 31-32 (2d
In this case, the UWUA constitution provides that a member
subject to disciplinary charges "shall have a fair and impartial
hearing and shall have the right to make an opening statement, to
be present throughout the hearing, to offer witnesses and
evidence, to confront and cross-examine witnesses, and to make a
closing statement." (National UWUA Constitution, Article XIV, §
11-A, attached as Exh. 6 to FAC). Yet, it is undisputed that the
defendants denied the Charged Members an adjournment so that
their attorney could be available for consultation during the
hearing (FAC, Exhs. 13, 15, 16, 17); produced the affidavit of
Harcourt Cordew on which the charges were based only a few days
hearing (Farrell Aff., ¶ 12); did not produce files for all of
the grievances that Mr. Farrell allegedly did not process
promptly (Farrell Aff., ¶ 13); utilized Mr. Davis as counsel to
the Trial Committee, although he had acted as Mr. Hellen's
attorney in the state court defamation action against the Charged
Members (O'Brien Dep. at 74-75, 90); denied the Charged Members
the opportunity to present evidence of disparate treatment
(O'Brien Dep. at 119-21; Trial Tr. 238, 268-72); denied the
accused the opportunity to call witnesses in the order they
preferred or to recall Mr. Cordew as a witness (Trial Tr. 245-46,
264); and denied them the opportunity to make closing statements.
(O'Brien Dep. at 149; Trial Tr. at 551). The UWUA has found these
actions to be a violation of the requirements of its
constitution. (Farrell Aff., Exh. 4 at 9-12). In addition, the
UWUA constitution requires that a disciplinary hearing be
conducted "no earlier than thirty (30) days from the date of the
certified notice of hearing so that both parties can adequately
prepare for the trial." (National UWUA Constitution, Article XIV,
§ 7-A). Here, the hearing was held 21 days after the amended
charges which were materially different from the initial
charges were filed.
The plaintiffs, then, are entitled to summary judgment on the
LMRA claim for violation of their rights under the UWUA
constitution. As the chair of the Trial Committee, Mr. O'Brien
made the rulings at issue and is therefore liable, as is Local
1-2. The roles, if any, of Mr. Hellen and Mr. Conetta have not
been established, and, accordingly, summary judgment is denied as
Finally, as the plaintiffs concede, this claim must be
dismissed with respect to Mr. Waters. Individual union officials
are not subject to claims for damages under § 301. See
Monaco, 2004 WL 203009, at *12; Madden v. International
Association of Heat and Frost Insulators and Asbestos Workers,
889 F. Supp. 707, 713 (S.D.N.Y. 1995). And, although such
officials may be subject to equitable relief in their official
capacities, see Monaco, 2004 WL 203009, at *12; Madden,
889 F. Supp. at 712-13, Mr. Waters is no longer an official of Local
1-2 and so would not appropriately be the target of an
injunction. See Guzman v. Bevona, 90 F.3d 641, 650 (2d Cir.
E. Fifth Cause of Action Tortious Interference with
The plaintiffs' Fifth Cause of Action asserts a supplemental
claim under state law for tortious interference with contract.
(FAC, ¶¶ 179-185). In effect, the plaintiffs contend that by
denying them a proper disciplinary hearing, the defendants
interfered with their contractual rights under the UWUA
constitution and Local 1-2's bylaws. The plaintiffs have moved
for summary judgment on this claim, and Mr. Waters has
cross-moved to dismiss it as it relates to him.
To prevail on a claim of tortious inference with contract under
New York law, a plaintiff must establish:
(a) that a valid contract exists; (b) that a "third
party" had knowledge of the contract; (c) that the
third party intentionally and improperly procured the
breach of the contract; and (d) that the breach
resulted in damage to the plaintiff.
Finley v. Giacobbe, 79 F.3d 1285, 1294 (2d Cir.
1996) (citations omitted). Most importantly for
purposes of this case, in order to meet the "third
party" requirement, "a plaintiff bringing a tortious
interference claim must show that the defendants were
not parties to the contract." Id. at 1295 (citing
Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120,
151 N.Y.S.2d 1, 5 (1956)). The parties to a contract
include the parties' agents and employees, and "[i]n
order to show that a defendant-employee is a `third
party,' a plaintiff must show that the
defendant-employee has exceeded the bounds of his or
her authority." Id. (citations omitted). One way
that a plaintiff may do so is to demonstrate that the
agent acted out of malice or self interest. See
Albert v. Loksen, 239 F.3d 256, 275 (2d Cir. 2001);
Cohen v. Davis, 926 F. Supp. 399, 404 (S.D.N.Y.
1996); BIB Construction Co. v. City of
Poughkeepsie, 204 A.D.2d 947, 948, 612 N.Y.S.2d 283,
285 (3d Dep't 1994) (an agent "cannot be held liable
for inducing [its] principal . . . to breach its
contract with plaintiff . . . [except] . . . when an
agent does not act in good faith and commits
independent torts or predatory acts directed at
another for pecuniary gain").
In this case, there is evidence from which the jury could infer
that the individual defendants, including Mr. Waters, acted in
their self interest in attempting to retain their positions in
the face of the challenge by the dissidents, and without regard
for the welfare of Local 1-2. On the other hand, the jury could
well reach the opposite conclusion. Accordingly, both motions for
summary judgment on this claim shall be denied, except that it
dismissed as against Local 1-2, since there can be no argument
that this defendant is a third party to its own contracts.
F. Sixth Cause of Action Breach of Contract
The Sixth Cause of Action alleges breach of contract. (FAC ¶¶
186-190). The plaintiffs assert that by denying Mr. Farrell, Mr.
Sugrue, and Ms. Giacometti a due process hearing, the defendants
violated their rights as guaranteed by Local 1-2's bylaws which
the defendants purportedly promised to comply with. Only Mr.
Waters has moved for summary judgment on this claim.
The plaintiffs' theory here is rather opaque. The individual
defendants, including Mr. Waters, are not parties to any contract
with the plaintiffs and did not become so simply by representing
that they intended to abide by the bylaws. "[I]t is well
established under New York law that an agent will not be held
personally liable for the breach of a contract by a disclosed
principal absent some indication that the agent intended to be so
bound." Melnitzky v. Rose, 299 F. Supp. 2d 219, 225 (S.D.N.Y.
2004) (citations omitted); see also Leutwyler v. Royal
Hashemite Court of Jordan, 184 F. Supp. 2d 303, 309 (S.D.N.Y.
2001). As there is no indication whatever that Mr. Waters could
personally become a party to any contract entered into by Local
1-2, nor that he ever wished to do so, he is entitled to summary
judgment on this claim.
G. Seventh Cause of Action Right to Elect Officers
In the Seventh Cause of Action, plaintiffs McNamara and Vella
allege that their rights as union members under the LMRDA to be
represented by properly elected union officers were infringed by
defendants' illegal suspension from office of Mr. Farrell, Mr.
Sugrue, and Ms. Giacometti. (FAC, ¶¶ 191-196). The plaintiffs
have not sought summary judgment on this claim, but Mr. Waters
has moved to dismiss it.
Mr. Waters presents two arguments. First, he correctly observes
that this claim is derivative of the plaintiffs' First and Second
Causes of Action, and he contends that since those claims should
be dismissed as against him, this one should be as well. However,
this argument is unavailing because I have denied Mr. Waters'
motion with respect to the First Cause of Action. Second, he
reasons that as union members who were not themselves directly
subject to discipline or other adverse action, Mr. McNamara and
Ms. Vella only have standing if there was a pattern of oppression
of dissent. That is correct, but, as discussed above, the
plaintiff may be able to prove such a pattern at trial, and it
would therefore be premature to grant Mr. Waters' motion on
grounds of lack of standing.
H. Eighth Cause of Action Political and Speech Rights
In the Eighth Cause of Action, the plaintiffs assert that their
free speech rights under § 101(a)(2) of the LMRA as well as their
rights to equal participation in union elections under §
101(a)(1) were violated by the defendants in the course of the
September 25, 2003 membership meeting at which the replacements
for Mr. Farrell and Mr. Sugrue were ratified. (FAC, ¶¶ 197-260).
The plaintiffs have moved for summary judgment on this claim and
the Union defendants have opposed the motion. The plaintiffs
they have not asserted this claim against Mr. Waters, who was no
longer an officer of Local 1-2 when that meeting took place.
The union defendants argue that no relief may be granted to the
plaintiffs in connection with this cause of action because the
United States Department of Labor has primary jurisdiction over
disputes concerning union elections. Indeed, Title IV of the
LMRDA, 29 U.S.C. § 481 et seq., governs the procedures for
union elections. And the enforcement provisions of Title IV
provide that a union member may file a complaint with the
Secretary of Labor concerning any alleged violation of the LMRDA
arising out of such an election. 29 U.S.C. § 482(a). Only if the
Secretary then files suit to set aside the election does the
district court assume jurisdiction. 29 U.S.C. § 482(b) & (c).
However, these limitations on the court's role only apply when
an election is covered by Title IV. See BLE International
Reform Committee v. Sytsma, 802 F.2d 180, 191 (6th Cir. 1986)
(recall elections not mandated by Title IV and therefore not
subject to its exclusive remedies). The election at issue in the
Eighth Cause of Action to fill vacancies created by the removal
of the plaintiffs is not. The pertinent section of the Code of
Federal Regulations provides in part:
Title IV governs the regular periodic elections of
officers in labor organizations subject to the Act.
No requirements are imposed with respect to the
filling by election or other method of any particular
office which may become vacant between such regular
elections. If, for example, a vacancy in office
occurs in a local labor organization, it may be
filled by appointment, by automatic succession, or by
a special election which need not conform to the
provisions of Title IV.
29 C.F.R. § 452.255; see also Talley v. Reich,
No. CIV. A. 93-2857, 1993 WL 483192, at *3-4 (E.D.
Pa. Nov. 23, 1993) (Title IV inapplicable to interim
election to fill vacancy). Therefore, this Court
could grant the plaintiffs a remedy.
Nevertheless, disputed factual issues preclude summary
judgment. At the plaintiffs' behest, I have reviewed video and
audiotapes of the September 25 membership meeting. Without
further evidence, it is impossible to discern whether the
breakdown of procedures was attributable to the defendants or to
the generally chaotic conditions. Furthermore, it is appropriate
for the jury to determine which deviations from established
procedures were material; it is doubtful that every violation of
Robert's Rules of Order by itself establishes a claim under the
LMRDA. The plaintiffs' motion for summary judgment on this cause
of action is therefore denied.
I. Ninth Cause of Action Reassignment of Duties
Finally, the plaintiffs contend in the Ninth Cause of Action
that the defendants retaliated against Mr. Duffy and Ms.
Giacometti by reducing their roles as officers in violation of
their rights to free speech and due process guaranteed by
sections 101(a)(2) and 101(a)(5) of the LMRDA,
29 U.S.C. § 411(a)(2) & (5). (FAC, ¶¶ 261-271). The plaintiffs have not
sought summary judgment on this cause of action, and they have
not asserted this claim against Mr. Waters. Therefore, it need
not be considered at this time.
For the reasons set forth above, the plaintiffs' motion for
summary judgment as to liability is granted with respect to the
First Cause of Action insofar as it asserts claims against Local
1-2, Mr. Hellen, and Mr. O'Brien and denied for claims against
Mr. Conetta and Mr. Waters. Their motion is granted with respect
to the Fourth Cause of Action as to Local 1-2 and Mr. O'Brien,
and denied as to Mr. Hellen and Mr. Conetta. The plaintiffs'
motion is denied with respect to the Fifth and Eighth Causes of
Action. Mr. Waters' cross-motion for summary judgment is granted
as to the Second, Fourth, and Sixth Causes of Action, and denied
as to the First, Third, Fifth, and Seventh Causes of Action.