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Scarlino v. Fathi

Supreme Court, New York County

May 18, 2012

Larry Scarlino, MICHAEL KENNY, and MICHELLE KELLER, Petitioners
v.
Behrouz Fathi; FRANK THOMAS, as Chairman of the Executive Committee of the Civil Service Technical Guild, Local 375, American Federation of State, County and Municipal Employees; and THOMAS CONSTANTINE, as Treasurer of the Civil Service Technical Guild, Local 375, American Federation of State, County and Municipal Employees, Respondents

For Petitioners Arthur Z. Schwartz Esq.

For Respondents Larry Cary Esq. Cary Kane LLP

LUCY BILLINGS, J.S.C.

Petitioners claim respondents violated their labor union Constitution's express terms by accepting respondent Fathi's election as the union President, when he had been convicted of possession of stolen property and repeatedly of attempted petit larceny. The court previously entered a series of orders requiring timely hearings at each level of internal union appeals. In a decision dated August 23, 2010, the parent union Judicial Panel ultimately upheld Fathi's election, concurring with the decision of the panel's hearing officer, and concluding as follows.

(1) Fathi's prior convictions, all misdemeanors and at least 25 years old, "were relatively minor and have no direct relationship to the duties and responsibilities of his position with the union."
(2) A strict construction of the union Constitution imposing a lifetime ban on serving in union office due to a misdemeanor 25 years ago would be unfair and inconsistent with trade union principles.

Aff. of Behrouz Fathi Ex. J, at 4. Respondents define trade union principles as including values of liberty, human dignity, opportunity, equal rights, and justice.

Respondents move to dismiss the amended petition for failure to state a claim, C.P.L.R. § 3211(a)(7), based on the union Judicial Panel's conclusions and on the ground that enjoining Fathi from serving as President would violate New York Correction Law § 752's prohibition of discrimination in employment against persons with a criminal record. The panel's hearing officer also referred to this anti-discrimination provision, but premised his decision on a rejection of the union Constitution's "literal" interpretation, instead interpreting its prohibition against holding union office as intended to apply only to "serious" offenses "closely related to the duties of the union office." Fathi Aff. Ex. I, at 7.

Recognizing the court's constraints against intruding on internal union affairs, petitioners maintain that, since the issues regarding the union Constitution involve only its enforcement, not its interpretation, enforcement by the court will not intrude on union affairs. Because the constitutional prohibition is clear, it is not subject to interpretation in light of ascertained intent. Fathi's convictions, moreover, committed well into his adulthood, are related to the duties of his union office. Regarding Correction Law § 752, petitioners maintain that it is the court's function, not the union's, to interpret the statute, which does not apply to the office of union President. See C.P.L.R. § 7803(3).

Respondents further move to dismiss the amended petition for failure to join necessary parties, District Council 37 of the American Federation of State, County and Municipal Employees (AFSCME), with which the parties' local union is affiliated, and AFSCME, by which their local union is chartered. C.P.L.R. § 3211(a)(10). Officials of these affiliated and parent unions heard and determined petitioners' internal union appeals. The amended petition challenges the AFSCME Judicial Panel's final determination of these appeals.

I.

FACTUAL BACKGROUND

A. UNION STRUCTURE AND CONSTITUTIONAL GOVERNANCE

The Civil Service Technical Guild, Local 375, comprising approximately 8, 000 members, is one of many local unions affiliated with and included in District Council 37 of AFSCME and is chartered by AFSCME, an international union. Commer v. McEntee, 145 F.Supp.2d 333, 335 (S.D.NY 2001). Local 375's President handles an ...


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