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Christopher Kuehne v. Local No. 1 of the United Association of Journeymen and Apprenticecs

August 8, 2012

CHRISTOPHER KUEHNE, PLAINTIFF,
v.
LOCAL NO. 1 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICECS OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA AND GEORGE REILLY, DEFENDANTS.



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

MEMORANDUM & ORDER

This case arises out of disciplinary action taken against plaintiff by his union, Local No. 1 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("Local 1"), and its umbrella organization, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("U.A."). Both plaintiff and defendants filed motions for partial summary judgment on plaintiff's third claim, which alleged a violation of plaintiff's rights under Section 411(a)(5) of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411, et seq. ("LMRDA" or "the Act"). On September 20, 2011, the Court referred the cross motions for partial summary judgment to Magistrate Judge Victor Pohorelsky for a Report and Recommendation ("R&R") under 28 U.S.C. § 636(b)(1)(B). ECF Docket # 79. By R&R dated February 15, 2012, Magistrate Judge Pohorelsky recommended that the parties' motions for partial summary judgment by granted in part and denied in part. ECF Docket # 82.

In particular, the R&R first recommends that plaintiff's motion for partial summary judgment against defendant Local No. 1 be granted insofar as, prior to disciplining plaintiff, Local 1 failed to provide plaintiff with adequately specific written charges alleging that plaintiff improperly provided information to employers (hereinafter "collaboration charges"), in violation of 29 U.S.C. § 411(a)(5)(A).*fn1 R&R at 8-12, 26. Second, the R&R recommends that Local 1's motion for partial summary judgment be granted insofar as, prior to discipline, Local 1 did provide plaintiff with adequately specific written charges alleging improper invocation of the Fifth Amendment privilege (hereinafter "Fifth Amendment charges"). R&R at 12-13, 20-21, 26. Lastly, the R&R recommends that U.A.'s summary judgment motion be granted in its entirety. R&R at 21-26.

The Court has accepted and reviewed plaintiff's and Local 1's objections to the R&R, as well as U.A.'s response to plaintiff's objections and plaintiff's response to the other parties' objections, as part of its de novo review of the full body of materials submitted to the magistrate judge. For the reasons that follow, the Court adopts the R&R with a brief clarification.

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 72(b)(3) provides that, when resolving objections to the R&R of a magistrate judge, the Court "must determine de novo any part of the magistrate judge's disposition that has been properly objected to" and then either "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3); accord 28 U.S.C. § 636. The phrase "de novo determination," however, "permit[s] whatever reliance a district judge, in the exercise of sound judicial discretion, ch[ooses] to place on a magistrate's proposed findings and recommendation," provided the district court remains the ultimate decision-maker. United States v. Raddatz, 447 U.S. 667, 676 (1980). The court has reviewed the entire record, all evidence submitted, and all parties' papers pre- and post-R&R, whether or not those portions of the record deal exclusively with the objections raised by the parties.

II. DISCUSSION

The parties' familiarity with the facts and record are assumed.

A. Collaboration Charges

Based on its independent review of the record, the Court finds that the magistrate judge identified and applied the correct legal standard governing the right of union employees subject to disciplinary action to receive "written specific charges" of their alleged misconduct. 29 U.S.C. § 411(a)(5)(A). The magistrate judge appropriately concluded that even under the relatively minimal written notice requirements of the Act, "the charges against the plaintiff for providing information to employers in litigation or potential litigation with the union failed to satisfy Section 411(a)(5)." R&R at 9.

Local 1 objects to this recommendation, in part, by contending that 29 U.S.C. § 411 (a)(5)(A) "d[oes] not require the charging instrument to specifically name the employers with which Plaintiff improperly collaborated, or provide a more definite time period or location of the underlying offense conduct." ECF Docket # 86, Objection to R&R filed by Local 1 ("Local 1 Obj.") at 2. Local 1's statement of law, at least, is correct. The LMRDA does not define what is meant by "specific charges" and thus does not explicitly require that any particular information be included in the charges. Instead, the standard is meant to be flexible and "[t]he degree of specificity required . . . will vary from case to case." Berg v. Watson, 417 F. Supp. 806, 810 (S.D.N.Y. 1976). Accordingly, in finding Local 1's written charges inadequate, Magistrate Judge Pohorelsky relied only in part on the broad "two-year time period for the 'offense'" and vague notation of "'various other locations.'" R&R at 9. Instead, the R&R focused predominately on the charging party's failure to include a sufficiently detailed "factual statement of the incident[s] . . . that form[ed] the basis for the [collaboration] charge[s]." Id. at 8. The charging party certainly knew which employers were involved, the litigation and potential litigations at issue, and highly detailed particulars of the form and content of the information plaintiff allegedly turned over to employers. As in Berg, "[i]t would have taken little effort for [the charging party] to include this information in plaintiff's notice or provide it thereafter, yet [he] declined to do so." Berg, 417 F. Supp. at 811. It is this deficiency, as well as the charge's imprecision with regard to time and place that is determinative.

Local 1 is wrong, as a matter of law, that "Plaintiff was required to . . . demonstrate that his defense was in any way prejudiced by the deficiencies" in the written charges, Local 1 Obj. at 8, although as the magistrate judge found and the record amply reveals, plaintiff most certainly did so demonstrate. R&R at 12 (citing Trial Board Transcript). As the magistrate judge correctly observed, the LMRDA and case law interpreting the Act are directly to the contrary: "Prejudice is assumed by the inadequacy of the charging document alone." R&R at 11.

Local 1's objection to this statement of law is premised upon a misreading of the LMRDA. Section 411(a)(5) of the Act provides that no union member may be disciplined "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). This Section is framed in the disjunctive and thus a finding that either of subsections (A), (B), or (C) has been violated is sufficient for relief under the LMRDA.*fn2 See, e.g., Mandaglio v. United Bhd. of Carpenters & Joiners of Am. (Gen. Exec. Bd.), 575 F. Supp. 646, 649 (E.D.N.Y 1983) (holding that for LMRDA violation, plaintiffs "have to show that they were not served with written specific charges or that they were not given a reasonable opportunity to prepare their defenses, or that they were deprived of a full and fair hearing upon the charges which led to their expulsion.") (emphasis added).

Contrary to Local 1's assertion, Int'l Bhd. of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO v. Hardeman, 401 U.S. 233 (1971) is fully consistent with this reading of the LMRDA. In Hardeman, the Supreme Court's principal focus was on whether the LMRDA "authorize[s] courts to determine the scope of offenses for which a union may discipline its members." Id. at 244. In explanatory dicta defining the contours of its decision, the Court made the unremarkable observation that where "the union's charges make reference to specific provisions, [Section 411(a)(5)(A)] obviously empowers the federal courts to examine those provisions and determine whether the union member has been misled or otherwise prejudiced in the presentation of his defense." Id. at 245 (emphasis added). Local 1 seizes upon, decontextualizes, and then reframes this dicta to suggest that Hardeman "require[s] . . . an affirmative showing of actual 'prejudice[] in the presentation of [a] defense.'" Local 1 Obj. at 7 (quoting Hardeman, at 245) (modifications in original). Local 1's reading of Hardeman is erroneous. The word "empowers" is plainly discretionary, not mandatory. Even if the passage were so framed, the Court's ...


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