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finding that threats that appointed staff members could be discharged if they did not "get with the program" did not give rise to a LMRDA retaliation claim because those threats had no bearing on the rights of members to dissent or speak out
Summary of this case from Kent v. N.Y. State Pub. Emps. Fed'nOpinion
02 Civ. 4028 (SAS)
July 17, 2002
Richard A. Dienst, Esq., Queller, Fisher, Dienst, Serrins, Washor Kool, LLP, New York, NY, for Plaintiffs.
Jeffrey R. Freund, Esq., Leon Dayan, Esq., Robert Alexander, Esq., Bredhoff Kaiser, PLLC, Washington, D.C., for Defendants:
Judith I. Padow, Esq., Office of Legal Counsel, SEIU 32BJ, New York, N.Y. for Defendants.
OPINION AND ORDER
I. INTRODUCTION
Plaintiffs are elected officers and appointed employees, as well as members, of Service Employees International Union Local 32B-32J (the "Union"). On May 24, 2002, they filed a Complaint in this Court alleging violations of their right to free speech and free assembly under section 101 of Title I of the Labor-Management Reporting and Disclosure and Disclosure Act ("LMRDA"), 29 U.S.C. § 411 (a)(2). See Verified Complaint ("Compl."). Plaintiffs claim that the termination of plaintiff Dominick Bentivegna from his appointed staff position with the Union and the temporary transfer of Grace Powell, another Union employee, are part of defendants' illegal scheme to suppress dissent in the Union. See id. ¶ 1.
On May 24, 2002, plaintiffs moved for a temporary restraining order ("TRO") and other injunctive relief, as well as expedited discovery. See Notice of Motion. Specifically, plaintiffs sought: (1) a TRO enjoining Powell's temporary transfer to Ohio, which was originally scheduled for June 3, 2002; (2) a preliminary injunction mandating the reinstatement of Bentivegna to his position as Supervisor of District 6; and (3) a preliminary and permanent injunction "enjoining and restraining the defendants from suppressing the remaining plaintiff's [sic] dissent under the threat of job forfeiture." Plaintiffs' Memorandum of Law in Support of Motion for a Temporary Restraining Order and Preliminary Injunction ("Pl. Mem.") at 41. At a conference held on May 31, 2002, the Court granted plaintiffs' request for expedited discovery and scheduled an evidentiary hearing for the preliminary injunction motion. Defendants voluntarily agreed to postpone Powell's transfer pending the Court's ruling on the preliminary injunction motion. On June 27, 2002, in a telephone conference with the Court, the parties agreed to treat plaintiffs' motion for a preliminary injunction as one for a permanent injunction. A one-day hearing was held on July 8, 2002.
II. FACTUAL BACKGROUND
The following facts are essentially uncontested.
A. The Parties
SEIU Local 32B-32J AFL-CIO is an approximately 77,000 member union representing commercial and residential building service workers in New York, New Jersey and Connecticut. See Compl. ¶ 13; Declaration of Kevin Doyle, Vice President of the Union ("Doyle Dec."), Ex. B to Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction ("Def. Opp."), ¶ 2. The Union is divided into ten Districts. See id. It is governed by the Joint Executive Board, which includes the President, five other elected Executive Officers, three At-Large Executive Board members, and three District officers from each of the Districts. See id. It employs a staff of approximately 250 employees who, under the Union's constitution, are appointed by and may be dismissed by the Union's President. See id. ¶¶ 3-4. Other than the President, elected officers are not paid a salary and are not expected to work full-time in this capacity. See Def. Opp. at 6. However, the President may hire an elected officer to serve as a full-time, paid Union employee, with tasks above and beyond those of his elected position. See id. Doyle Dec. ¶ 3.
Plaintiff Bentivegna was elected to the office of Assistant Secretary of the Union in 2000, when he ran on the same ticket as the current President, Michael Fishman. See Def. Opp. at 11; Transcript of 6/6/02 Deposition of Dominick Bentivegna ("Bentivegna Dep."), Ex. A1 to Def. Opp., at 123-25; Transcript of 7/3/02 Testimony of Michael Fishman ("Fishman Tr.") at 123-24. Following that election, Fishman appointed Bentivegna to the paid position of Supervisor of District 6. See Bentivegna Dep. at 123-125; Def. Opp. at 11. He was terminated from this position on April 9, 2002, but remains the Assistant Secretary. See Pl. Mem. at 4; Def. Opp. at 6; Bentivegna Dep. at 123.
Plaintiff Powell has been employed as the Business Agent for District 6 since April 1999. See Compl. ¶ 9; Def. Opp. at 6; Transcript of 6/4/02 Deposition of Grace Powell ("Powell Dep."), Ex. A2 to Def. Opp., at 47. As a business agent, she acts on behalf of the Union to service the needs of currently organized members regarding collective bargaining agreements and is also involved in organizing new members. See Def. Opp. at 10 n. 4; Powell Dep. at 47-49.
Plaintiff Aniello Scotti is an elected Executive Board member from District 5, but he is not an employee of the Union. See Compl. ¶ 10; Def. Opp. at 6. He was elected to this position in August 2000, after being asked to run on President Fishman's slate in that election. See Transcript of 6/4/02 Deposition of Aniello Scotti ("Scotti Dep."), Ex. A4 to Def. Opp., at 19-20. Plaintiff Verondo Wilkerson is employed as a Union organizer. See Compl. ¶ 11; Def. Opp. at 6.
Defendants are the Union, five elected officers of the Union, and one appointed Union employee. The five elected officers are: (1) Michael P. Fishman, President; (2) Kevin Doyle, Vice President; (3) Hector Figuera, Secretary Treasurer; (4) Krystina Rosario, Secretary; and (5) Kyle Bragg, Assistant to the President. See Compl. ¶¶ 12, 14-18; Def. Opp. at 7. Defendant Larry Engelstein, the Union's Chief of Staff and General Counsel, is an employee but not an elected official. See Def. Opp. at 7.
The complaint alleges that Engelstein is an elected official. See Compl. ¶ 19. Defendants pointed out this error, see Def. Opp. at 6, and plaintiffs have not argued otherwise.
B. Termination of Bentivegna from His Supervisor Position
On April 9, 2002, President Fishman fired Bentivegna from his position as District 6 Supervisor because Bentivegna announced that he was going to run against Fishman for the Presidency. See Transcript of 6/13/02 Deposition of Michael P. Fishman ("Fishman Dep."), Ex. A5 to Def. Opp., at 31-32; Pl. Mem. at 4. Fishman said that Bentivegna was fired because he was "not supporting the program." Pl. Mem. at 4; see also Bentivegna Dep. at 194 (Bentivegna was told that he was fired because "if you're not with the program, you can't work" for the administration); 4/10/02 Memorandum from Michael P. Fishman to All 32B-32J Staff ("April 10th Memo"), Ex. A9 to Def. Opp. (explaining to staff that Bentivegna was fired because "he did not support the program or the administration of the Union").
That same day, an Executive Board meeting was held (the "April 9th Executive Board Meeting") which Bentivegna attended in his continuing capacity as an elected officer of the Union. At that meeting, Fishman announced Bentivegna's termination. See Minutes of Joint Executive Board Meeting, April 9, 2002, Ex. A8 to Def. Opp. He explained that Bentivegna "had announced his candidacy for President and expressed disagreement with the direction of the Union," contrary to Fishman's belief that "[t]he staff of the Union must work together to carry out programs determined by the Union." Id. He made it clear, however, that Bentivegna's "officer and membership status remained unaffected." Id.
At the April 9th Executive Board Meeting, President Fishman "recognized" Bentivegna, who was given the opportunity to distribute a letter to the Board and make a motion asking the Board to reinstate him to his staff position. See id. April 10th Memo. The motion was seconded and rejected. See Minutes of Joint Executive Board Meeting, April 9, 2002.
Also on April 9th, Fishman held a staff meeting attended by, among others, plaintiffs Powell and Wickerson (the "April 9th Staff Meeting"). See Pl. Mem. at 4; Powell Dep. at 75-77; Transcript of 6/4/02 Deposition of Verondo Wilkerson ("Wilkerson Dep.") at 46; Def. Opp. at 8-9. At that meeting, Fishman told the staff that Bentivegna was fired because he planned to run for the presidency. See Def. Opp. at 5; Wilkerson Dep. at 46. Fishman explained that, while members could run against the current administration, staff members could not run. See Def. Opp. at 5; Wilkerson Dep. at 46; Powell Dep. at 76.
At the April 9th Staff Meeting, Wilkerson spoke in "impassioned terms" about his friendship with Bentivegna. Wilkerson Dep. at 51-52; see also Def. Opp. at 25. He announced at the meeting that Bentivegna would "always be [his] friend" and that he would always speak to Dominick at meetings "inside the office or outside the office." Id. at 50. Wilkerson also "defended" Bentivegna against allegations that he was "not with the program." Id. When Wilkerson asked Lenore Friedlander, the Union's Director of Organizing, whether his statements would affect his work as an organizer, she indicated that it would not. See id. at 52. He has not, in fact, been disciplined in any way for his statements at that meeting or for generally supporting Bentivegna. See id. at 53, 60; see also Def. Opp. at 25.
On April 10, 2002, President Fishman circulated a memorandum to the entire Union staff regarding Bentivegna's termination (the "April 10th Memo"). He explained the reason for Bentivegna's termination as follows:
I terminated Dominick Bentivegna from his staff position because he did not support the program or administration of the Union. Because of his disagreements with that program — a program adopted by the membership and the Executive Board — Dominick had announced that he was running for President. The Constitution gives the President authority to hire, appoint and dismiss staff of the Union. Although Dominick retains his position as an elected Officer of the Union, under the Constitution, that does not entitle him to a paycheck from the Union.
April 10th Memo at 1 (emphasis added). Explaining his position regarding the duty of staff members to support the administration, Fishman wrote:
This administration has encouraged debate and discussion among officers, staff and members. That strengthens the Union and better serves the members. But once the Union has decided on a course of action, the staff must act together to implement the plan. . . . Business agents, organizers and supervisors who oppose a program even after its adoption or have their own personal or political agendas, won't get the job done.
In the Memo, Fishman also explained the distinction between rights as members and rights as employees:
I want to emphasize, however, that the need for a committed staff working off the same page has nothing to do with a member's right to speak out, dissent, or oppose this administration or any of its policies. No employer under contract with this Union can fire or discipline a member for expressing opinions on union affairs. The Union is committed to protecting any member from such retaliation and I have every confidence that you will do so, should the need arise.
Id.
On April 13, 2002, Bentivegna circulated an open letter to the Union members informing them of his dismissal, calling Fishman's conduct and comments "undemocratic and belittling to the office of President." 4/13/02 Open Letter from Dominick Bentivegna to All 32BJ Members, Ex. 2 to Compl.; see also Compl. ¶ 23. He requested that members "call and write the defendants to express their views as to the defendants' tactic." 4/13/02 Open Letter from Dominick Bentivegna to all 32BJ Members; see also Compl. ¶ 23.
On April 24, 2002, the Union held a general membership meeting. See Bentivegna Dep. at 208; Def. Opp. at 10. Bentivegna attended this meeting, was "recognized", spoke openly with "passion and vigor", and was not shut down in any way. Bentivegna Dep. at 208-09; see also Def. Opp. at 10. To this day, Bentivegna has been permitted to attend membership meetings and speak openly at those meetings, as well as to attend and vote at Executive Board meetings. See Bentivegna Dep. at 208-09; Def. Opp. at 16.
On May 2, 2002, Bentivegna submitted charges against President Fishman for violations of the Union Constitution, as well as for violations of the Rules of Debate contained in the SEIU Constitution and Bylaws. See Pl. Mem. at 5-6. These charges were dismissed by the Executive Board. See id. at 6. On May 20, 2002, Bentivegna appealed his termination to the International Executive Board, but he has not received a reply. See id.
C. Powell's Temporary Transfer to Ohio
On May 21, 2002, Powell expressed support for Bentivegna at a meeting of Bronx District shop stewards (the "May 21st Bronx Meeting"). See Def. Opp. at 10; Compl. ¶ 38. The next day, she was informed by her supervisor, defendant Bragg, that she was being transferred to Columbus, Ohio for a three to four month temporary assignment. See Compl. ¶¶ 32-33, 38; Def. Opp. at 10. While on assignment in Columbus, she will receive her full salary and benefits, reimbursement for travel expenses, temporary living expenses in Columbus, a per diem allowance, as well as an allowance that will allow her to travel home to New York every other weekend while on assignment, "subject to the needs of the organizing campaign." 5/30/02 Letter from Jeffrey R. Freund, counsel for defendants, to the Court ("Def. Opp. Ltr.") at 2, 5; see also Powell Dep. at 12.
Plaintiffs explain that Powell "attempted to refute false rumors that union officials had circulated regarding Bentivegna's political position with her Bronx constituency." Pl. Mem. at 5.
III. FINDINGS OF FACT
The following constitutes the Court's findings of fact with respect to relevant contested issues.
A. The Historical Relationship Between Bentivegna and the Fishman Administration
Bentivegna and Fishman ran on the same ticket in 2000, see Bentivegna Tr. at 123, and Fishman testified that there was no history of disagreement between the two, see Fishman Dep. at 24-25; see also Plaintiffs' Reply Memorandum of Law in Support of Motion For a Temporary Restraining Order and Preliminary Injunction ("Pl. Repl.") at 9-11. Although plaintiffs note that Bentivegna has "openly spoken out about improprieties in the union" and that, some time ago, he brought a lawsuit "alleging misconduct and corruption against [the] [U]nion and its past president," Pl. Mem. at 4; see also Compl. ¶ 20, these actions were taken against the former administration, not the Fishman administration. Indeed, in his deposition, Bentivegna repeatedly insisted that he has not been a "dissenter" in the administration. See, e.g., Bentivegna Dep. at 178 ("I never failed to follow the program. As much as I thought it was illegal, thought it was wrong, I did it."). Thus, I find that, until recently, the relationship between Bentivegna and President Fishman has been one of political allies, not hostile opponents.
B. The April 9th Executive Committee Meeting
Plaintiffs claim that, when Scotti opposed Bentivegna's termination at the April 9th Executive Board Meeting, President Fishman told him "in substance" that he would lose his job if he dissented. Compl. ¶¶ 26, 27. At his deposition, however, Scotti admitted that Fishman never actually threatened to take away his job. See Scotti Dep. at 87. Rather, this was his "feeling" because the President is "a powerful man," he can "throw out members" and he has the power to "transfer people." Id. Scotti also admitted that he has been outspoken in his support for Bentivegna, including distributing hundreds of leaflets at buildings around the city, and that he has not suffered any retaliation for this support, either as a member or as an elected Union official. See id. at 87-88, 90-94, 102-03. Indeed, in a web posting dated April 29, 2002, Scotti wrote to Union members: "I introduce myself and speak freely with the passion and conviction that comes from within. I don't hide. . . . [I]f you're rank and file like me then `You have nothing to fear but fear itself'." Ex. 10 to Def. Opp.
Based on this evidence, I find that Fishman did not threaten to terminate Scotti from his elected position if he supported Bentivegna or opposed the current administration. Scotti has not been afraid to speak out in support of Bentivegna or in opposition to the current administration as a result of Bentivegna's termination, and he has not been disciplined for such speech.
C. The April 9th Staff Meeting
Plaintiffs claim that, at the April 9th Staff Meeting, Fishman threatened to terminate any staff that "continued to express their opinions about improprieties of the union, and the Executive Board" or "if they supported the candidacy of Bentivegna." Pl. Mem. at 4-5; see also Declaration of Verondo Wilkerson ("Wilkerson Decl. ¶ 11"), attached to Pl. Mem. When pressed on this issue at his deposition, Wilkerson explained that the staff was told that they should resign if they intended to support Bentivegna or run for office. See Wilkerson Dep. at 58-60. Powell testified that Fishman stated that "if you were to support Mr. Bentivegna, that you should resign immediately." Powell Dep. at 76. Several other staff members also testified that they were told that they could not be on the staff and also run for an elected position or oppose the current administration's programs and policies. See Transcript of 7/3/02 Testimony of Alejandro Camarena, Union staff member ("Camera Tr.") at 51-52. Finally, Fishman testified that he did not threaten to fire staff members who disagreed with him, but that he said in a "positive way" that to be a staff member "you have to support the direction of the Union" and that if they did not support the direction of the Union "they shouldn't be working there." Fishman Dep. at 61; see also Fishman Tr. at 143.
Based on this evidence, I find that Fishman informed the staff at the April 9th Staff Meeting that anyone who sought to support Bentivegna's candidacy or run for office against the current administration should resign from his or her staff position. He did not, however, threaten to fire them for expressing their opinions about improprieties of the Union or the Executive Board.
D. Fishman's Message to the Staff Regarding Bentivegna's Termination
I find that the staff, including plaintiffs, knew that the action taken against Bentivegna was in his capacity as a union employee, not in his capacity as a member or an elected official. Fishman made this clear at the April 9th Executive Committee Meeting, at the April 9th Staff Meeting, and in the April 10th Memo. See Wilkerson Dep. at 46-47; Powell Dep. at 76; April 10th Letter. They understood that Fishman's position was that public opposition to the administration's programs on the part of those charged with carrying out that program was incompatible with effective governance of the Union. See Wilkerson Dep. at 46-47; April 10th Letter. Fishman clearly distinguished between a union member's right to run for office or oppose the administration and the rights of staff.
Wilkerson testified as follows:
Q: [T]ell me as close as you can word for word what it was that Mike Fishman said at that meeting?
A: . . . Everyone understands as a staff member you cannot run, but as a member you can run.
Q: So he made a clear distinction between someone's rights as a member and someone's rights as an employee; is that correct?
A: Exactly . . .
Q: Tell me what Lenore [Friedlander, the Union's Director of Organizing] said.
A: She pretty much said the same thing. Does everyone here understand Dominick was fired as a staff member because he cannot run as a staff member, but he can run as a member. Lenore also said . . . I believe she said we encourage members to run . . .
Wilkerson Dep. at 46-47 (emphasis added). Similarly, Powell testified as follows:
Q: Tell us what was said in the meeting and who spoke.
A: Fishman spoke. He said that . . . as a member of 32BJ, you can say anything. As a staff member you cannot, and that if you were to support Mr. Bentivegna, that you should resign immediately.
. . .
Q: So you understood he was making a clear distinction between a person's membership rights and the [ir] rights as a staff employee?
A: That is correct.
Powell Dep. at 76 (emphasis added).
E. Members' Ability to Voice Their Dissent at Membership Meetings
Plaintiffs claim that Fishman and his staff tried to suppress dissent at Union membership meetings. See, e.g., Pl. Repl. at 12-13. They particularly point to a meeting held on February 28, 2002 and one held on April 24, 2002.
The February 28th general membership meeting was held at the Union headquarters in Manhattan. See Transcript of 7/2/02 Testimony of Thomas Giordano, Supervisor Chairman of District 4 ("Giordano Tr.") at 112. The meeting room was "packed" with union members and people were overflowing into other rooms. Fishman Tr. at 147; see also Transcript of 7/3/02 Testimony of Larry Rivera, Union member ("Rivera Tr.") at 21. While Fishman was giving the President's Report, Larry Rivera, a non-staff Union member, came to the microphone and called a "point of order." Rivera Tr. at 9, 18; Giordano Tr. at 113-14; Fishman Tr. at 149. According to the Union's rules of conduct for such meetings, a person may only raise a "point of order" about an issue that is being discussed at the time. See Videotape of April 24, 2002 Union Meeting ("Video"), Tr. Ex. D-11; Fishman Tr. at 149. Nevertheless, Rivera "interrupted" Fishman's report to complain about a completely unrelated workplace issue. Rivera Tr. at 9, 18-20; see also Giordano Tr. at 114; Fishman Tr. at 149. As Rivera admitted, he purposely "interrupted" Fishman's speech and cursed at him because he did not want to show Fishman any "respect." Rivera Tr. at 22-23.
Fishman informed Rivera that the issue he raised was not on point, see Fishman Tr. at 149; Giordano Tr. at 11, and that he was "out of order," Fishman Tr. at 149. Under the Union's rules of conduct, if the President calls someone out of order three times, he can order that person to leave the room. See Fishman Tr. at 149; Video. Fishman called Rivera "out of order" three times and, while he did not order him out of the room, he did instruct Rivera to "sit down." Fishman Tr. at 149-50. When Rivera would not walk away from the microphone, Tom Giordano eventually took the microphone away from him. Fishman Tr. at 150; Bentivegna Dep. at 97-98, 102; Rivera Tr. at 9; Giordano Tr. at 115.
I do not credit Rivera's testimony that Giordano `hit' him in the chin with the microphone. See Rivera Tr. at 24.
A "confrontation" ensued between members and the Union staff. Bentivegna Dep. at 98; Fishman Tr. at 150; see also Rivera Tr. at 10, 21-22. The situation was variously described as "very hot," Fishman Tr. at 151, and "holy hell," Rivera Tr. at 21, and both staff and non-staff members admitted that there was a realistic threat of fistfights breaking out at the meeting, see Bentivegna Dep. at 96-98; Rivera Tr. at 25-26; Fishman Tr. at 152. After about ten to fifteen minutes, people calmed down and the meeting continued for about half an hour. See Bentivegna Dep. at 98; Rivera Tr. at 21; Fishman Tr. at 151-152. Although Fishman had originally intended to open the microphone for `new business' at the end of the meeting, he decided that, given the earlier confrontation and the overflow, it would be "in the interest of all the members not to get into [another] physical confrontation" and instead "asked for a motion to confirm." Fishman Tr. at 152. A motion was made, it was seconded, and the membership voted to end the meeting. See id. at 152-53.
At the April 27th meeting, Fishman made several changes to the meeting format in an effort to prevent the kind of confrontations that occurred at the February 28th meeting and to facilitate orderly, open member participation. See id. at 155-57. Some of the changes were: (1) he tried to accommodate more members by holding the meeting in a larger space — the Sheratton Hotel in Manhattan; (2) he set up two microphones for members to speak into — one labeled `yes' for those voicing support for a proposal and one labeled `no' for those who opposed the proposal; (3) two cameras were set up to videotape the meeting, one focused on the `yes' microphone and one focused on the `no' microphone; and (4) the order of business was changed so that the members would first debate and vote on any proposals, then the floor would be open for members to raise new business, and at the end the officers would give their reports. See id. Giordano Tr. at 117-118; Video.
Fishman began the April 27th meeting by reiterating the Union's rules of conduct. See Video. He noted that members were expected to speak to the point at issue and that, if a member was out of order, he or she would be called out of order three times before he or she could be removed from the meeting. See id. Fishman explained a proposed change to the Union Constitution which, if passed, would allow any proposed bylaw change to be submitted to the entire Union membership for ratification rather than simply to those members who attended a particular meeting. See id. Rivera Tr. at 40-41; Fishman Tr. at 136-37. He then opened the floor to comments from members, alternatively calling on persons at the `yes' microphone and the `no' microphone. See Video.
Plaintiffs suggest that the April 27th meeting was an example of Fishman's attempt to stifle membership dissent, see Pl. Repl. at 14; Rivera Tr. at 16-17, but the evidence shows otherwise. Several members who stood at the `no' microphone were not only given a full opportunity to voice their objections to the proposal at issue, but were also given an opportunity to criticize Fishman and his administration, and some even made comments about Bentivegna's termination. See Video. Indeed, Bentivegna himself spoke in opposition to the proposal, complained about his termination, and harshly criticized Fishman and his administration. See id. While the `no' microphone was shut off once, this only occurred after a member refused to address the proposal at issue, and only after Fishman called him out of order three times, as required by the rules of conduct. See id. Moreover, about twenty minutes of the approximately two hour meeting was devoted to "open microphone" time, during which members were permitted to raise new business. Fishman Tr. at 158; see also Video.
Based on this evidence, I find that plaintiffs have not proven by a preponderance of the evidence that Fishman or his staff members intended to stifle dissent at membership meetings. To the contrary, they attempted to create rules and procedures that would permit orderly debate and only cut off discussion when members refused to follow the rules or attempted to disrupt the meetings, or when there was a threat of physical violence.
F. Powell's Temporary Transfer to Ohio
Defendants claim that Powell is being sent to Ohio to "serve as an organizer in connection with an organizing campaign being carried out by the International Union in Columbus." Def. Opp. Ltr. at 2. They claim that, in the past, the Union has temporarily assigned staff to assist other Locals and International Division programs in other cities, and that "[m]any other union staffers . . . from other parts of the country [have been sent] to assist in the Columbus campaign." Def. Opp. Ltr. at 5; see also Doyle Dec. ¶ 6. Plaintiffs admit that Powell was told that she was being transferred because "she was good at organizing." Compl. ¶ 34. They insist, however, that this reason was "pretextual" and that the job transfer was actually retaliation for her defense of Bentivegna at the May 21st Bronx Meeting. Id. ¶ 35.
Plaintiffs have not proven by a preponderance of the evidence that Powell's temporary transfer to Ohio is retaliation for her having voiced support for Bentivegna. First, Powell testified that no one indicated to her that her transfer was in any way related to her support of Bentivegna. See Powell Dep. at 54-57. Second, there is no evidence that any of the defendants who were responsible for deciding on Powell's transfer to Columbus was aware of her comments at the May 21st Bronx Meeting at the time they reached that decision. See id. at 54-57 (admitting that she has no evidence that the defendants were aware of her comments when they informed her of her transfer); Transcript of 6/12/02 Deposition of Kyle Bragg ("Bragg Dep.") (testifying that he did know about Powell's statements at the May 21st Meeting when he informed Powell of her temporary transfer), Ex. A7 to Def. Opp., at 38-40; Transcript of 6/12/02 Deposition of Kevin Doyle ("Doyle Dep."), Ex. A6 to Def. Opp., at 177-80 (same). Third, the evidence shows that Fishman received a request that he "loan staff" for an "important campaig[n]" in early May, Memorandum to Mike Fishman, Tr. Ex. D-12; see also Fishman Tr. at 169, and that Powell was chosen for the assignment approximately a week before the May 21st Bronx Meeting. See Bragg Dep. at 38-40; Doyle Dep. at 177-80; Fishman Tr. at 160-61.
G. Effect of Bentivegna's Termination on His Membership Rights
Plaintiffs claim that Bentivegna's termination "directly violates Bentivegna's membership rights" because Bentivegna "often spoke out openly about the improprieties in the union" and his membership in the Union is now "membership in name only." Pl. Repl. at 11. However, Bentivegna admitted at his deposition that his termination has had no effect on his membership rights whatsoever and that he has continued to exercise those rights freely. See Bentivegna Dep. at 205-09. Even after he was terminated as Supervisor, he was given absolute freedom to voice his opposition to the current Union leadership at membership meetings as well as in his capacity as an elected officer. See id. Video.
Bentivegna claims that his rights as a "candidate" have been "harmed" because the members are "afraid" to talk to him. Id. at 204. The only example he provided, however, was one incident where certain Union members with whom he was standing "took off" when they saw Fishman approaching. Transcript of 7/4/02 Testimony of Dominique Bentivegna ("Bentivegna Tr.") at 106. On the other hand, there is substantial evidence that members who talk with, associate with and even voice their support for Bentivegna have done so openly and without retribution. See Video; Scotti Dep. at 87-88, 90-94, 102-03; Wilkerson Dep. at 50-52. Accordingly, I find that Bentivegna's termination has not directly affected his membership rights, including his right to run for office.
Plaintiffs claim that "[m]embers are being told to report Bentivegna's presence in certain union buildings," Pl. Repl. at 11, but offered no evidence to support this allegation.
H. Effect of Bentivegna's Termination on Union Employees
Plaintiffs have proven by a preponderance of the evidence that, as a result of Bentivegna's termination, some Union staff are afraid to express their support for Bentivegna or their opposition to the current administration. Bentivegna testified that defendants' actions put "fear into every staff member or most staff members." Bentivegna Dep. at 200. Alejandro Camerena, a staff member, testified that after Bentivegna's termination he felt afraid and intimidated. See Camarena Tr. at 52, 64. Daniel Gross, a Business Agent for the Union, testified that he feels "uncomfortable" with the way people look at him when he is with Bentivegna, that he has "concerns" about his position and fears losing his job if he supports Bentivegna. Transcript of 7/3/02 Testimony of Daniel Gross ("Gross Tr.") at 74-75. Finally, Bruce Becker, another Business Agent for the Union, testified that after Bentivegna's termination he fears that if he "voice[s] [his] opinion anyway other than the direction that the union is going, [he] could be out of the job." Transcript of 7/3/02 Testimony of Bruce Becker, at 88.
Plaintiffs have not proven by a preponderance of the evidence, however, that since Bentivegna's termination, any staff member was actually disciplined for expressing his or her support for Bentivegna or opposition to the current administration. Plaintiffs themselves admitted that staff members have spoken out without retribution. Bentivegna admitted that at least two Union employees who have been outspoken critics of the current administration continue to hold their positions without any retaliation for their actions. See Bentivegna Dep. at 107-08, 211-12. Wilkersen testified that he openly supported Bentivegna at the April 9th Staff Meeting without being reprimanded. See Wilkerson Dep. at 50-53, 60. Finally, Powell testified that other Union employees who have been "outspoken on the subject" of Bentivegna's termination have not been removed from positions or disciplined as a member in any way. Powell Dep. at 96.
Plaintiffs tried to establish that Camarena and Gross have been disciplined for their support of Bentivegna, but the evidence was unpersuasive. Camarena testified that he expects to lose his job because of his testimony in this case, see Camarena Tr. at 55, but on cross-examination admitted that this expectation was merely an inference — no one has ever threatened him with termination, see id. at 60-62. Gross testified that, after he made it public that he had called Bentivegna to check on how he was doing, he was transferred from District 6 to District 7 and asked to resign from his position as Recording Secretary of District 9, to which he had been elected when he was staffed in District 9. See Gross Tr. 68-73, 79, 82. The evidence suggests, however, that these events were not related to Gross's support for Bentivegna. He was warned of a possible transfer before Bentivegna's termination and he had previously been demoted and transferred because of performance issues. See id. at 81. With respect to his position as Recording Secretary of District 9, the evidence suggests that it was appropriate for him to step down because he was no longer staffed in that District. See id. at 79.
I. Effect of Bentivegna's Termination on Union Members' Expression
Plaintiffs have not proven by a preponderance of the evidence that Bentivegna's "termination has had a chilling effect upon members that continue to support his movement." Pl. Repl. at 12. All non-staff Union members who testified in this case admitted that they have openly supported Bentivegna and/or criticized Fishman's administration without retribution. Plaintiffs Scotti and Bentivegna are non-staff Union members who continue to express their opinions without any threat to their membership rights. See supra Parts III.B., III.G. Similarly, Larry Rivera is a non-staff Union member who has vehemently expressed his opinion at Union meetings and in widely circulated emails, and has distributed leaflets in support of Bentivegna, without losing any membership rights. See Rivera Tr. at 34-36, 29; Video. Indeed, not one plaintiff could point to a single member whose speech has been `chilled' as a result of Bentivegna's termination.
Rivera testified that, after he spoke up at a March 2002 membership meeting, he received threatening phone calls from someone who sounded like and identified himself as Tom Giordano, the Supervisor of District 4. See Rivera Tr. at 12-14, 25-26. Rivera reported the incident to the New York City Police Department, but nothing ever came of his complaint. See Tr. Ex. D-1; Rivera Tr. at 26, 28. Giordano denied ever calling or threatening Rivera. See Giordano Tr. at 116-17, 120-21. Even assuming the threatening phone calls were in fact made, contrary to Giordano's testimony, Rivera was free to attend and participate in subsequent membership meetings, see Video, and there is no evidence that any of the defendants were in any way aware of or involved in this alleged incident.
IV. LEGAL STANDARD FOR GRANTING PERMANENT INJUNCTIVE RELIEF
A court may issue a permanent injunction only when plaintiff shows "the absence of an adequate remedy at law and irreparable harm if the relief is not granted." New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989); see also United States v. Vazguez, 145 F.3d 74, 81 (2d Cir. 1998); ASI Sign Sys., Inc. v. Architectural Sys., Inc., 98 Civ. 4823, 1999 WL 553825, at *7 (S.D.N.Y. July 29, 1999). To obtain a permanent injunction, moreover, a plaintiff must actually succeed on the merits; it cannot rest, as one may when seeking a preliminary injunction, on a mere showing of a likelihood of success. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987) Thus, a party seeking permanent injunctive relief must demonstrate: (1) actual success on the merits, and (2) that it will suffer irreparable harm if the relief is denied. See Acciai Speciali Terni USA, Inc. v. Momene, No. 00 Civ. 3203, 2002 WL 987278 (S.D.N.Y. May 10, 2002) (no page numbers available); Doe v. Bridgeport Police Dept., 198 F.R.D. 325, 335 (D. Conn. 2001).
V. DISCUSSION
Plaintiffs claim that defendants have violated section 101(a)(2) of Title I of the LMRDA, 29 U.S.C. § 411 (a)(2). That section protects the rights of members 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 . . . .
Id. Section 102 of the LMRDA provides a cause of action for violations of section 101. See 29 U.S.C. § 412; see also Maddalone v. Local 17, United Bhd. of Carpenters and Joiners of America, 152 F.3d 178, 183 (2d Cir. 1998). To succeed on the merits of their claims, plaintiffs must prove that: (1) they have standing to sue under Title I of the LMDRA, and (2) defendants engaged in retaliatory discipline in violation of section 101(a)(2). As further explained below, plaintiffs have failed to prove that they have standing to sue under the LMRDA. Therefore, I will not discuss the merits of their retaliatory discipline claim.
A. Legal Standard — Standing Under the LMDRA
The Supreme Court has explained that the LMDRA "was meant to protect union members' rights as members, not an individual members' right to employment with the union." Franza v. International Bhd. of Teamsters Local 671, 869 F.2d 41, 45 (2d Cir. 1989) (citing Finnegan v. Lau, 465 U.S. 431, 439-41 n. 10 (1982)). The purpose of section 101(a)(2) is to "protec[t] union members from direct interference with union membership rights in retaliation for their expression of opinions concerning union activities." Maddalone, 152 F.3d at 183 (emphasis added). Because status as a union employee or appointed officer is not a `membership right' within a union, it is not generally protected by section 101 of the LMRDA. See id. at 184. An employee will only have standing under Title I if his "membership rights in the union were directly infringed by action taken with respect to the union member's employment status." Franza, 869 F.2d at 46 (emphasis added).
In Finnegan, the Supreme Court applied this rule to reject a section 101 claim by appointed staff members whose employment with the union had been terminated by the President after they had supported the losing candidate in a hotly-contested union election. See 465 U.S. at 441-42. Plaintiffs argued that their membership rights had been affected because the President's action had forced them "to choose between their rights of free expression . . . and their jobs." Id. at 440. Finding that the dilemma was only an "indirect interference with [plaintiffs'] membership right," the Court held that plaintiffs lacked standing. Id. In doing so, the Supreme Court explained that, because "the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union," it is consistent with the LMRDA's purpose of promoting union democracy and political accountability. Finnegan, 465 U.S. at 441; see also Franza, 863 F.2d at 46. The Court recognized that "this poses a dilemma for some union employees; if they refuse to campaign for the incumbent they risk his displeasure; and by supporting him they risk the displeasure of his successor." Id. at 442. "However, in enacting Title I of the [LMDRA], Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president's freedom to choose his own staff." Id.; see also Sheet Metal Workers' Int'l Assoc. v. Lynn, 488 U.S. 347, 355 (1989) ("Lynn").
In contrast, the Supreme Court has held that the removal of an elected union official in retaliation for his outspoken criticism of the union may be a violation of Title I of the LMRDA. See Lynn, 488 U.S. at 353-355. Unlike an appointed staff member, the Court explained, the discharge of an elected official denies union members "the representative of their choice." Id. at 355. Furthermore, the removal of such an official contravenes "the LMRDA's basic objective: `to ensure that unions [are] democratically governed, and responsive to the will of union membership as expressed in open, periodic elections'." Id. (quoting Finnegan, 456 U.S. at 441). When an elected official is discharged, there is a more pronounced chilling effect on members' free speech rights than when an appointed staff member is removed. See id. "Not only is the fired official likely to be chilled in the exercise of his own free speech rights, but so are the members who voted for him." Id.
Another exception to Finnegan was carved out by the Second Circuit in Franza, where the Second Circuit recognized that when an appointed union official "become[s] a symbol for a movement within the rank and file of union members . . . discipline of that person could be considered threatening to the exercise of Title I rights by union members generally." 869 F.2d at 45. Thus, the Circuit has permitted appointed union employees to sue for violations of the Title I where the employee is disciplined as "part of [a] purposeful and deliberate attempt . . . to suppress dissent within the union." Maddalone, 152 F.3d at 184 (quotation marks omitted). To fall within this exception, however, a plaintiff must present "clear and convincing proof" that his or her mistreatment "was part of a series of oppressive acts by the union leadership that directly threaten the freedom of members to speak out." Id. (quotation marks omitted) (emphasis added). The mistreatment must be more than "ad hoc personal retaliation;" it must be "part of a calculated and deliberate scheme to discourage dissent" among the union membership. Id. at 185; see also Schermerhorn v. Local 100, Transport Workers union of Am., AFL-CIO, 91 F.3d 316, 323 (2d Cir. 1995) ("A scheme to suppress dissent exists when as a result of established union history or articulated policy . . . a purposeful and deliberate attempt [is made] by union officials to suppress dissent within the union." (quotation marks omitted)).
Plaintiffs argue that some of them are policymaking staff and some are not. However, the Second Circuit has held that the test is no different for a non-policymaking employee. Franza, 869 F.2d at 38; see also Yerdon v. Teamsters Local 1149, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO, 886 F. Supp. 226, 233 (N.D.N.Y. 1995); Cabera v. Wilson, No. 94 Civ. 3419, 1997 WL 283380, at *1 (S.D.N.Y. May 29, 1997).
B. Analysis
1. Direct Effect on Membership Rights
Bentivegna claims that his termination from his appointed staff position has infringed his membership rights. have found, however, that his termination has not had a direct effect on his membership rights, and that he retains his right to attend, speak at, and vote at membership meetings and Executive Board meetings. See supra Part III.G. The fact that his termination has `chilled' his right to express himself in his capacity as a Union employee does not establish the requisite "direct" effect on membership rights required to establish standing. See Lynn, 488 U.S. at 355 (noting that while "patronage-related discharges ha[ve] some chilling effect on the free speech rights of [union employees]," this concern is "outweighed by the need to vindicate the democratic choice made by the union election"); Finnegan, 465 U.S. at 441-42.
None of the other plaintiffs have claimed that their own membership rights have been directly affected by defendants' actions. Powell states in her declaration that her temporary transfer to Ohio "is clearly retaliatory as part of a series of oppressive acts by the union leadership that directly threaten my freedom as a member of the union to speak out," Declaration of Grace Powell, attached to Pl. Mem., ¶ 23. Despite this allegation, Powell did not identify any instance when her membership rights were affected by defendants' actions — not in her declaration, not at her deposition, and not at the hearing. Even if she has standing, her failure to prove that she was transferred in retaliation for her speech, see supra Part III.F., is fatal to her retaliatory discipline claim. See Hussein v. Hotel Employees Restaurant Union, Local 6, 108 F. Supp.2d 360, 366 (S.D.N.Y. 2000) (holding that, to prove retaliatory discipline, plaintiff must prove that: (1) his conduct constituted "free speech" under the LMRDA; (2) the speech was a cause for the Union taking action against him; and (3) damages).
The Second Circuit has recognized that the right to run for union office is a "membership right" protectable under the LMRDA. See U.S. v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen Helpers of Am., 156 F.3d 354, 361 (2d Cir. 1998); Riordan v. American Federation of Gov't Employees, AFL-CIO, No. 01 Civ. 1136, 2001 WL 1352464, at *3 (S.D.N.Y. Nov. 1, 2001). However Bentivegna's termination has not directly affected his right to run for the presidency of the Union. See supra Part III.G. He complains that, because he cannot attend supervisor meetings, he no longer has the "access" he formerly had to the Fishman administration. Bentivegna Tr. at 104. But the mere fact that his termination denied him the perks or access of a Union employee is not enough to establish standing. See Tucker v. Bieber, 900 F.2d 973, 977 (6th Cir. 1990) (holding that candidate for union office lacked standing to sue under Title I where, because he was terminated from his staff position, he no longer had access to the convention floor). Any impediment posed by this reduced access is simply a "collateral consequenc[e]" of his termination that has had a "de minimus" effect on his right to run for office. Riordan, 2001 WL 1352464, at *4 (holding that plaintiff lacked standing under the LMRDA where his suspension from his position as a union officer resulted in a shortening of the period in which he could campaign for a particular union office).
2. Scotti's Standing as an Elected Union Officer
Unlike the other plaintiffs, Scotti is an elected, as opposed to an appointed, officer of the Union. Under Lynn, an elected union officer may have standing to sue under Title I of the LMRDA if he is discharged from his elected position or otherwise disciplined for his speech. See 488 U.S. at 353-55. A union officer does not meet the requirements of Lynn, however, if he has not been subject to retaliation. See Messina v. Local 1199 SEIU, Nat'l Health Human Svc. Employees Union, AFL-CIO, No. 00 Civ. 7375, 2002 WL 243781, at *6 (S.D.N.Y. Feb. 20, 2002) (noting that Lynn requires an allegation of retaliatory action); Pickering v. Beatty, No. 90 Civ. 1076S, 1992 WL 225555, at *5-*7 (W.D.N.Y. Aug. 11, 1992) (granting summary judgment for defendants where union official failed to show that she was subject to any retaliatory action); Helmer v. Briody, 759 F. Supp. 170 (S.D.N.Y. 1991) (dismissing plaintiff's claim at the summary judgment stage for failure to produce evidence that her removal was retaliatory).
Here, Scotti has not alleged any form of discipline by the Union. He complains that the Executive Board voted at the April 9th meeting to confirm Bentivegna's termination over his objection, see Declaration of Aniello Scotti, attached to Pl. Mem., ¶ 10, but does not allege that this vote was conducted improperly. To the contrary, he openly voiced his objection to Bentivegna's termination at the April 9th Executive Board Meeting, and has continued to do so without retribution. See id.; supra Part III.B. Because Scotti has not proven that defendants retaliated against him or took any action that would deprive his constituents of "the representative of their choice," Lynn, 488 U.S. at 355, he does not meet the standing requirements of Lynn. See Messina, 2002 WL 243781, at *8; James v. Kay, No. 88 Civ. 0126, 1993 WL 2288083, at *2-*3 (S.D.N.Y. June 23, 1993) (holding that elected union delegate lacked standing to sue under Title I of the LMRDA where the members were not "totally deprived of their elected representative" but were "at most deprived of the presence of a delegate at one delegates assembly"); Pickering, 1992 WL 225555, at *5-*7.
3. Scheme to Suppress Dissent
Mindful that their case requires them to fit within the exception outlined in Franza, plaintiffs assert that they are victims of a pattern of suppression of union dissent. The Second Circuit has allowed Title I claims to go forward where the removal of an officer or employee stemmed from "longstanding and well-documented patterns of harassment and intimidation." Maddalone, 152 F.3d at 185; see also Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir. 1973) (lengthy history of intra-union conflict); Cotter v. Owens, 743 F.2d 223, 230 (2d Cir. 1985) (fifteen-year history of litigation between dissident group and leadership of union local). Until recently, however, Bentivegna and Fishman were political allies, not opponents. See supra Part III.A. And none of the other plaintiffs have offered any evidence of a "longstanding" history of conflict with the Fishman administration.
If there is no evidence of "years of harassment," Maddalone, 152 F.3d at 185, the type of conduct required to prove a "scheme to suppress dissent" has been of a such a "nature, intensity and extent [as] would strongly tend to chill union members who desired to exercise their rights in a fashion disapproved of by [defendants]." Johnson v. Kay, 860 F.2d 529, 537 (2d Cir. 1988) (emphasis added). For example, in Johnson v. Kay, the Second Circuit upheld a Title I claim by an employee where defendants' conduct included "physical intimidation directed at [plaintiff] and her supporters," "organized attempts by the defendants to prevent union members from expressing their views [at member meetings]", "a series of actions by defendants designed to . . . take physical control of the union building," and "attempts to block [plaintiff's] normal channels of communication with other members." Id. at 536-37 (emphasis added). In Maddalone, the Second Circuit held that a union member had pled sufficient facts to support a claim that he was removed from his union job as part of a scheme to discourage dissent where plaintiff alleged that: (1) he was removed pursuant to the district council president's order that "every member who had participated in the protest demonstrations should be taken off his job;" (2) an independent union monitor had reported "separate attempt[s] to intimidate a union member" who had filed disciplinary action against the local's business manager; and (3) supporters of the president "often disrupted [member] meetings and prevented opposition candidates from speaking to suppress criticism" of the president. 152 F.3d at 184-85 (emphasis added).
See also Messina, 2002 WL 243781, at *8 (union employee stated claim under Title I of LMRDA where she alleged that she was removed as a delegate in response to a letter representing the views of at least seventy other members, she had received multiple notices over a one and a half year period that she was "being brought up on unspecified charges," defendants had attempted to and/or succeeded in removing her as a delegate on several other occasions, the union had repeatedly ignored complaint filed by plaintiff and another member about improper conduct towards members).
In comparison, in Rodriguez v. International Bhd. of Teamsters, AFL-CIO, No. 98 Civ. 8849, 1999 WL 816182, *5 (S.D.N.Y. Oct. 13, 1999), Judge Jed Rakoff of this Court held that allegations by an appointed union business agent terminated for supporting an opposition candidate did not establish a "scheme to suppress dissent" where plaintiff alleged that defendant "failed to call frequent membership meetings, denied members' requests to discuss union business at [a] meeting, refused to permit a vote on a petition to end [defendant's] trusteeship, and attempted to secure membership signatures in a petition expressing support for [defendant's] trusteeship." Id. at *3. These allegations, the court held, fell "well below" the level of "harassment and intimidation previously recognized by the Second Circuit as justifying the exception." Id. (quotation marks omitted).
Here, plaintiffs have not proven by the requisite "clear and convincing" standard that defendants engaged in the kind of harassment and intimidation that would establish a scheme to suppress dissent. Fishman and his staff made it very clear to the Union employees that, although an appointed staff member could be discharged for "failure to get with the program," this had no bearing on a member's rights to dissent or speak out as members. See supra Part III.D. Union members, including several of the plaintiffs, remained free to express their opinions in their capacity as members or elected officials. See supra Parts III.B., III.E., III.G., III.I. Contrary to plaintiffs' allegations, Fishman and his administration did not try to suppress members' dissent at membership meetings, but rather made a conscious effort to facilitate membership participation and orderly, open debate. See supra Part III.H. Although some staff members fear that they may be disciplined for expressing dissenting opinions or supporting Bentivegna, see supra Part III.H., this fact does not advance plaintiffs' position. Under Finnegan, it is perfectly permissible for an elected union leader to instill into his or her subordinate appointed employees the fear that if they are openly disloyal to the elected leaders, their union employment will be jeopardized. See 465 U.S. at 441.
In sum, plaintiffs have failed to establish that defendants' actions "directly infringed" their membership rights, Franza, 869 F.2d at 46, denied other union members "the representative of their choice," Lynn, 488 U.S. at 355, or were part of a calculated scheme to suppress dissent within the union membership, see Maddalone, 152 F.3d at 184. Accordingly, plaintiffs cannot sue under Title I of the LMRDA.
VI. CONCLUSION
For the reasons stated above, plaintiffs lack standing to sue under Title I of the LMRDA. Accordingly, their request for a permanent injunction is DENIED. The Clerk of the Court is ordered to close this case.
SO ORDERED.