Summary
In Green, the court dismissed plaintiffs' claims that charges were not presented within two weeks of when the charging party knew or should have known of the facts underlying the charge, as required by the union constitution and bylaws.
Summary of this case from Piacente v. Int'l Union of Bricklayers & Allied CraftworkersOpinion
03 CV 5190 (JG).
February 3, 2005
DENIS A. ENGEL, Colleran, O'Hara Mills, L.L.P., Garden City, New York, Attorneys for Plaintiff.
NICHOLAS R. FEMIA, O'Donoghue O'Donoghue, Washington, D.C., Attorneys for Defendant.
HOPE ALLISON PORDY, Spivak, Lipton, Watanabe, Spivak Moss, L.L.P., New York, New York, Attorneys for Defendants.
MEMORANDUM AND ORDER
Plaintiffs John Green and Anthony Orrigo, former officers of Local One of the International Union of Elevator Constructors ("IUEC"), filed this action against defendant Dana Brigham, in his capacity as General President of the IUEC. Plaintiffs allege that Brigham violated the free speech and due process rights secured to them as union members under federal labor law, in violation of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(2) (a)(5). They also assert, for the first time in their opposing papers, that Brigham failed to follow the dictates of Local One's and the IUEC's Constitution and Bylaws, in violation of Section 301 of the Labor Management Relations Act ("LMRA"). All of these allegations arise from an IUEC adjudicatory panel's findings that Green and Orrigo were involved in the receipt of unauthorized compensation, and the resulting punishment.
Originally, Green and Orrigo sued Brigham in his individual capacity as well. At oral argument on May 14, 2004, counsel for Green and Orrigo withdrew their claims against Brigham in his individual capacity. Brigham's counsel agrees that Brigham is an appropriate defendant in his official capacity.
Brigham now moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim under either the LMRDA or the LMRA. For the reasons set forth below, the motion is granted in part and denied in part.
BACKGROUND
The following facts are relevant for purposes of this motion. I assume that all of plaintiffs' allegations are true, as I must in deciding this motion, see Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995), and I draw all reasonable inferences in their favor, Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997).
Green was the President-Business Manager of Local One for about three decades. Orrigo was its Secretary-Treasurer for more than four years. On August 6, 2003, they were both removed from their respective positions.
While Green and Orrigo were in positions of union leadership, they were involved in an ongoing political dispute with the IUEC and Brigham. Specifically, during a 2001 union convention, the two sides disagreed over the ratification of collective bargaining agreements and over the eligibility requirements to hold office as IUEC Executive Vice President. Eventually, the convention delegates adopted the plaintiffs' positions over the strong objections of Brigham. Subsequent to the 2001 convention, the two sides had a dispute over Local One's exclusion from the IUEC Apprentice Program. They also disagreed as to whether Local One should be allowed to form a health plan separate from IUEC's, to which Local One made $25 million to $30 million in annual contributions.
On June 17, 2003, Local One trustee Edward Krull informed Orrigo that he had reviewed Local One's books on June 12, 2003, and had discovered that Orrigo was paid additional compensation over a 27-month period. Orrigo explained that the extra salary was for services "above and beyond" his clerical duties as Secretary-Treasurer. (Compl. ¶ 15.) Orrigo referred Krull to Green for further explanation. Two days later, on June 19, 2003, Orrigo admitted to Local One's membership at a regularly scheduled meeting that he had received the extra compensation. He further stated, however, that there was nothing improper about his actions because, as the records would reveal, he had reported the extra money at the time to the Local One trustees, the taxing authorities, the IUEC and the United States Department of Labor. Nevertheless, he offered to return the money "as a good union person," if that was the preference of the membership. ( Id. at ¶¶ 15-16.)
On July 3, 2003, Orrigo was told that a hearing on the matter would occur in Philadelphia, Pennsylvania on July 24, 2003. He was also informed of the charges against him: "[O]n at least 27 occasions, [he] misappropriated union funds in the form of fringes," in violation of Article XVIII, Section 1, paragraphs 3 and 7, of the IUEC Constitution. ( Id. at ¶ 17; Moss Decl., Ex. C.) Orrigo was further informed that Local One would have to be audited, and that he would be required to personally produce the records. Orrigo requested a postponement of the audit so that he would be able to prepare a defense. He explained that the audit was consuming his time and that it was unfair; indeed, he submits that the scheduling of the audit on the "eve of the hearing" was a "deliberate attempt to prevent [him] from adequately preparing" for the adjudication of the charges against him. ( Id. at ¶ 18.) He also found it difficult to prepare a defense while simultaneously attending to his duties as Secretary-Treasurer of Local One.
The complaint makes clear that Orrigo requested a postponement during the hearing, although it is not clear whether he did so prior to the hearing. Although Brigham has stated in his papers that Orrigo did not make such a request, for purposes of this motion I assume that he had requested an adjournment in advance, as that is a fair inference from the complaint.
After the hearing, on August 6, 2003, the panel found Green and Orrigo guilty as charged. Specifically, it found that Green and Orrigo should have presented the extra compensation issue to the membership for it to reject or accept. The panel emphasized that "at some point during the more than two year period involved, the matter should have been brought before the Membership for its approval." (Moss Decl., Ex. F, Hearing Panel Report at 5.) (emphasis added). As a basis for its finding, at least in part, the panel noted that:
Other Local 1 officers testified that when they asked both Brother Orrigo and Brother Green about receiving additional money for extra work they had performed, both of the accused officers told them, the request would have to go before the Membership. This convinced us that both of the accused knew that the payments to Brother Orrigo for his extra work also should have gone to the Membership, given their response to these other local officers who wanted more money for their own extra work.
( Id.) As punishment, the panel removed Green and Orrigo from their respective positions, ordered them to repay the illicit funds, and disqualified them from holding any union office until after July 1, 2005. That same day, the General Executive Board of the IUEC (after receiving the original panel's determination), increased the disqualification time period by more than a year, to September 2006.
Green and Orrigo filed the instant complaint on October 15, 2003, alleging violations of the LMRDA, 29 U.S.C. § 411 et seq. Essentially, they claim (in nine counts) that they were charged and convicted with misappropriation of union funds as political payback for voicing their opposition to certain policies of IUEC and Brigham, and once charged, they were not accorded due process in the proceedings that followed. In their reply papers, they add the additional claim that Brigham violated Section 301 of the LMRA by failing to adhere to the dictates of Local One's Constitution and the IUEC's Constitution.
DISCUSSION
A. The Standard for a Motion to Dismiss Under Rule 12(b)(6)
Dismissal under Rule 12(b)(6) may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (quotation marks omitted). A federal court's task in determining the sufficiency of a complaint is "necessarily a limited one." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The appropriate inquiry is "not whether a plaintiff might ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id.; see also Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) ("[A] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.")
In this inquiry, I may consider documents attached to the complaint as exhibits or incorporated in it by reference, matters of which judicial notice may be taken, and documents either in plaintiffs' possession or of which they had knowledge and relied on in bringing the suit. Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000). Thus, I may properly consider the documents annexed to the Declaration of Franklin K. Moss, one of the attorneys for Brigham, as well as Local One's Constitution and Bylaws, as Green and Orrigo directly refer to them in their complaint and they are part and parcel of their claims.
These documents include the IUEC's Constitution, the Trial Manual, the charges and related documentation, the panel's decision which underlies this suit, and a letter from Richard Markowitz.
B. The LMRDA
"The LMRDA was enacted to encourage democratic self-governance in unions and to curb widespread abuses and corruption among union leadership." Maddalone v. Local 17, United Bhd. of Carpenters and Joiners of Am., 152 F.3d 178, 183 (2d Cir. 1998) (citations omitted). Title I of the LMRDA, otherwise known as the "Bill of Rights of Members of Labor Organizations," was enacted "to guarantee every member equal voting rights, rights of free speech and assembly, and a right to sue . . . [and to] ensur[e] that unions [would be] democratically governed and responsive to the will of their memberships." Sheet Metal Workers' Int'l Assoc. v. Lynn, 488 U.S. 347, 352 (1989) (citations and quotations omitted).
Specifically, Section 101(a)(1) of Title I of the LMRDA guarantees that "[e]very member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings." 29 U.S.C. § 411(a)(1). Section 101(a)(2) of Title I of the LMRDA provides union members with "the [f]reedom of speech and assembly," specifically, "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." Id. at § 411(a)(2). Section 101(a)(5) prohibits a union member from being "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; [and] (C) afforded a full and fair hearing." Id. at § 411(a)(5).
C. The Due Process Claims
1. Are the Claims Cognizable?
Green and Orrigo have alleged due process violations under Section 101(a)(5) in relation to their hearing. The threshold issue here, which Brigham has raised, is whether these claims are even cognizable under the LMRDA, considering that the complaint arises from the plaintiffs' removal from office and their restitution for damages that they caused in their official capacities.
It is well-settled that Section 101(a)(5) only protects union members against a loss of membership rights due to being unfairly disciplined by a union. It does not protect union members in their official capacities (as elected or appointed officials) from losing rights related to their official position. See United States v. Int'l Bhd. Teamsters, 156 F.3d 354, 361 (2d Cir. 1998) ("Section 101(a)(5)'s procedural protections apply only to disciplinary actions that affect `membership rights,' — such as the right to nominate candidates for office, to vote in union elections, to attend membership meetings, and to express views and opinions on union business.") (citations omitted); Cotter v. Owens, 753 F.2d 223, 226 (2d Cir. 1985) ("The LMRDA protects union members as members, not in their roles as union officers or employees"); Mack v. Transport Workers Union of America, No. 00 Civ. 9231, 2002 WL 500377, at *4 (S.D.N.Y. Mar. 29, 2002) ("[Section] 411(a)(5) do[es] not apply to discipline taken against a union officer in her capacity as an officer.").
Thus, as a general rule, a claimant under this section cannot assert a cause of action for his removal from office as that would affect only his rights as an official — not his membership rights. See Finnegan v. Leu, 456 U.S. 431, 438 (1982) (removal from an appointed position is not actionable "discipline" within meaning of LMRDA because scope of Section 101(a)(5) "meant to refer only to punitive actions diminishing membership rights, and not to termination of a member's status as an appointed union employee"); Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir. 1973) ("Title I of the Act protects the union-member relationship, but not the union-official or the union-employee relationship, and that hence removal from union office gives rise to no rights in the removed official as an official under the Act.") (emphasis in original).
A union member can assert a claim for actions rendering him ineligible to seek office, however, as that is a right that all union members possess. See Schonfeld, 477 F.2d at 904 ("[R]endering a man ineligible from seeking union office, whether for five years or three months, affects him as a member and permits him under the Act to challenge the fairness of the procedures resulting in such political exile.") (emphasis in original); Int'l Bhd. Teamsters, 156 F.3d at 361 (same); Riordan v. Am. Fed'n of Gov't Employees, No. 01 Civ. 1136, 2001 WL 1352464, at *3 (S.D.N.Y. Nov. 1, 2001) ("[C]andidacy for union office is a membership right under Title I of the LMRDA.").
Here, to the extent that Green and Orrigo complain that they were rendered ineligible to run for election for some period of time, their claims are cognizable. Part of the punishment that the hearing panel meted out was to preclude Green and Orrigo from running for election until September of 2006. Because there are elected positions for which the plaintiffs could have (and perhaps could still) run between their dismissal from office in August of 2003 and September of 2006, they have stated a claim that their rights as union members have been impermissibly interfered with.
2. The First and Fifth Causes of Action: Violation of Local One's Constitution
The first cause of action is that Brigham violated Green's and Orrigo's rights by having the IUEC conduct the hearing, instead of allowing Local One's Executive Board to do so, as per Local One's Constitution and Bylaws. The fifth cause of action stems from the fact that Krull brought the charges against Green and Orrigo on June 30, 2003, although he knew the facts relating to the charge on June 12, 2003 — just over two weeks earlier. They claim that this violated Local One's Constitution and Bylaws, which require the presentation of charges within two weeks of when the charging party knew or should have known of the facts underlying the charges.
These claims are easily dismissed. Technical violations of a union's internal procedural rules are not cognizable under the LMRDA. For a fair hearing under the LMRDA, only the basic principles of due process must be followed, not the full panoply of protections that apply to criminal proceedings. See United States v. Int'l Bhd of Teamsters, 247 F.3d 370, 385 (2d Cir. 2001); see, e.g., id. at 387 (no violation of the LMRDA where union fails to follow its own procedural rules, unless that failure deprives the party of a full and fair hearing); DeCarlo v. Salamone, 977 F. Supp. 617, 625 (W.D.N.Y. 1997) (same).
Moreover, the claimed procedural violations here are particularly innocuous. See, e.g., Wellman v. Int'l Union of Operating Engineers Local 501, 812 F.2d 1204, 1206 (9th Cir. 1987) (rejecting claim that plaintiff was denied a fair hearing because he was tried before a regular membership meeting rather than a general one; "The fact that Wellman was tried at one type of membership meeting instead of another did not deprive him of a fair hearing."). Indeed, Green and Orrigo have not argued to the contrary; instead, they have re-pled these factual allegations under a new legal theory, as will be discussed infra.
3. The Second Cause of Action: Biased Panel
As their second cause of action, Green and Orrigo have asserted that Brigham "predetermined the outcome of the hearing by selecting individuals to the panel who were predisposed to finding [them] guilty of the charges of which they were accused. The Hearing Panel members were and, upon information and belief, continue to be on the payroll of the IUEC and they serve at the pleasure of General President Brigham." (Compl. ¶ 30.) The plaintiffs also assert that they did not receive a fair hearing due to a "political vendetta" against them by the IUEC leadership based on their history of opposition to certain IUEC polices. ( Id. at ¶ 8.)
Brigham correctly contends in seeking to dismiss this claim that his appointment of the panel members does not inexorably lead to the conclusion that they were biased. However, as stated earlier, the appropriate inquiry is not whether the plaintiffs might ultimately win but whether they should be allowed to offer any evidence to support their claims. Indeed, the cases on which Brigham relies are decisions at the summary judgment stage, where more is required of a plaintiff. I cannot say at this point that it appears beyond doubt that there is no set of facts regarding bias on which Green and Orrigo would be entitled to relief. Accordingly, the motion to dismiss this claim is denied.
See Def.'s Mot. Dismiss at 12, 10, 13 (citing Frye v. United Steelworkers, 767 F.2d 1216, 1225 (7th Cir. 1985) (affirming grant of summary judgment to defendants where plaintiff had failed to support his bias claim with specific factual evidence connecting the panel members to the history of conflict and animosity between plaintiff and the union leadership); DeCarlo, 977 F. Supp. at 627 (granting summary judgment to defendants on bias claim where plaintiffs' bald assertions of bias were refuted by the record reflecting that the "trial committee worked hard to avoid any appearance of impropriety . . . [and] took steps to insure that its actions were not perceived to be biased in any way [and] [i]ts determination was made only after those members who were interested or involved in the case in any way were excused."); Yager v. Carey, 910 F. Supp. 704, 715-16 (D.D.C. 1995) (deciding summary judgment against plaintiff where the only evidence that panel member was biased was her appointment by defendant to two official positions, unrelated to her position as a panelist, and her deposition testimony demonstrated that she had no knowledge of the ongoing dispute between the parties).
4. The Fourth Cause of Action: Insufficient Time to Prepare Defense
I reach the same conclusion, for the same reasons, with respect to Brigham's motion to dismiss the fourth cause of action, in which Green and Orrigo allege that Brigham did not allow them an adequate time to prepare for a defense. According to the complaint, Orrigo was informed on July 3, 2003, of the charges against him and that there would be a hearing in Philadelphia on July 24, 2003. He asserts that three weeks was not enough time for him to prepare a defense in light of the fact that the IUEC had scheduled an audit of Local One's books and records that mandated his personal involvement.
For his part, Brigham maintains that this claim should be dismissed as to Orrigo because he received formal notice 21 days in advance and constructive notice via Krull's inquiries on June 17, 2003. He further relies on Orrigo's own public admission to the union's membership on June 19, 2003 that he had received additional compensation. Brigham cites to several cases where courts have held that time periods like the one involved here (i.e., between the filing of charges and the hearing on those charges) do not offend due process. ( See Def.'s Mot. Dismiss at 18 (citing cases).) However, those cases do not necessarily determine the outcome here, as they were decided on summary judgment. None held that, as a matter of law, 21 days to prepare is sufficient no matter what the circumstances. See Kirrane v. Transport Workers Union, 781 F. Supp. 1044, 1049 (S.D.N.Y. 1992) (20 days sufficient where period satisfied union's constitution and plaintiff presented no evidence to the contrary); Mandaglio v. United Bhd. Of Carpenters Joiners, 575 F. Supp. 646, 653 (E.D.N.Y. 1983) (24 days sufficient); Falcone v. Dantinne, 288 F. Supp. 719, 727 (E.D. Pa. 1968), rev'd on other grounds, 420 F.3d 1157 (2d Cir. 1969) (22 days sufficient); Vars v. Int'l Bhd. of Boilermakers, 215 F. Supp. 943, 948 (D. Conn. 1963), aff'd, 320 F.2d 576 (2d Cir. 1963) (14 days held sufficient where plaintiff did not claim prejudice and time period was within that accorded under the union's rules).
Like the plaintiffs' second cause of action, their fourth does not appear likely to succeed on the merits. For instance, Brigham contends that Orrigo did not request a postponement until he was already at the hearing. (Compl. ¶ 21 ("At the hearing, Orrigo stated on several occasions that he did not have time to adequately prepare for his defense.")) This fact, if true, certainly will undercut Orrigo's claim. Furthermore, Orrigo's assertion that three weeks of preparation time was inadequate because he had to simultaneously keep up with his duties as Secretary-Treasurer of Local One and aid the auditors is not very persuasive, in light of the fact that the charges were simple, he essentially admitted his conduct to the union membership, and he was able to travel to Philadelphia to meet with Local One's attorney prior to the hearing. Nevertheless, on a motion to dismiss, my role is not to determine whether the plaintiffs will eventually prevail, but rather to determine if they have stated a claim on which relief could be granted. I believe that Orrigo has.
Green's claim appears to be even less persuasive than Orrigo's; unlike Orrigo, it appears that Green did not even have to engage in the audit. Nonetheless, although the facts supporting his claim are rather sparse, I cannot say that Green has not stated a claim for relief.
5. The Remaining Causes of Action Alleging Due Process Violations
The remaining causes of action alleging due process violations do not state claims for relief.
In their sixth cause of action, Green and Orrigo allege that after the hearing concluded, Local One's attorney, Richard Markowitz, submitted evidence to the panel that they were not permitted to address, depriving them a fair hearing. Green and Orrigo had met with Markowitz in preparation for the hearing for legal advice, as Markowitz was a trusted attorney with whom the plaintiffs had previously dealt favorably over many years. In the letter in question, Markowitz, who stated that he was writing at the urging of Green, essentially explained that the extra compensation was not obtained in violation of union rules because it was not "salary," which would require a membership vote, but rather "compensation" for "services," which would not require such a vote. (Moss Decl., Ex. G.) Green and Orrigo have not provided any support for the proposition that this conduct violated their right to a fair trial. Nor could they; as Brigham rightly points out, if anything, Markowitz's letter could only have helped Green's and Orrigo's position.
In their seventh cause of action, Green and Orrigo allege that they were found guilty of charges that were different from the actual charges that instigated the hearing. This is wrong. The initial charges filed by Krull allege violations of Article XVIII, Section 1 of the IUEC's Constitution and Bylaws, paragraphs 3 and 7. These provisions require adherence to the local union's Constitution and Bylaws, and outlaw the misappropriation of funds belonging to the local union. The charge also alerts Green and Orrigo to the specific conduct at issue: "On at least 27 occasions, [Plaintiffs] misappropriated union funds in the form of wages and fringes." (Moss Decl., Exs. A C.) The panel report found the plaintiffs guilty of violating Article XVIII, Section 1, paragraphs 3 and 7, based on the same conduct. Thus, the charges and convictions are mirror images of one another.
Moreover, the charges clearly satisfy Section 101(a)(5)'s requirement that union members receive specific, written charges of the discipline. Here, the charges did just that; they identified the charging party as Krull, the accused members as Orrigo and Green, the time and place of the offense, the nature of the charges, the witnesses to the offenses, and finally, the specific provisions offended. Green's and Orrigo's arguments to the contrary are hardly persuasive. They characterize the charged violations and the found violations as inconsistent because the hearing panel stated that Orrigo was a diligent and productive worker who probably should have received extra compensation. There is no inconsistency here. The issue was not whether Orrigo was deserving of extra payment; rather, the issue that was charged and decided was whether he appropriated funds without obtaining the proper approval from the membership.
In their eighth cause of action, Green and Orrigo claim that they have been deprived of a meaningful appeal because no appeal would be heard until the next IUEC convention in 2006. Brigham points out that there is no case law that recognizes a due process right to appeal in this setting, and Green and Orrigo have not offered any. Instead, they have shifted the debate to one under a different law — the LMRA, Section 301, as discussed infra.
Finally, in their ninth cause of action, Green and Orrigo assert that the failure of the hearing panel to follow the procedures in the Trial Manual, which was created to ensure compliance with due process under the LMRDA, has resulted in unspecified due process problems. They maintain that because the Trial Manual was compiled in order to assure the union's compliance with due process under the LMRDA, if the Trial Manual was violated it necessarily follows that their due process rights were violated. I disagree with that logic. In any event, I am not going to scour the manual and compare it to the trial proceedings in order to find discrepancies. Alleging such discrepancies, and contending that they evidence a due process violation, is a job for Green and Orrigo, and they have failed to perform it in this proceeding.
As discussed earlier, even if Green and Orrigo could point to what they consider to be the breaches of the Trial Manual, technical violations of a union's constitution, including those concerning trial procedures, do not necessarily amount to a due process violation. At oral argument, plaintiffs' counsel shed some light on the claim. He stated that the IUEC's rules require that charges against a union member should generally be filed with the local board, and that this rule is found in the Trial Manual. Such a defect is not actionable because a violation of it does not rise to a due process violation under the LMRDA. ( See Tr. at 24-25.)
D. The Third Cause of Action: Retaliation
Liberally construed, the third cause of action alleges retaliation in violation of Section 101(a)(2). At bottom, Green and Orrigo claim that charges were brought against them in retaliation for their speech activity as union members, and that they were removed on that basis; in other words, the hearing was a sham. This claim seems to be asserted independently, for the most part, of the due process claims.
Certainly, due process and free speech claims can lie independently of one another. Indeed, the Second Circuit has recently confirmed that "[t]he free speech and due process rights guaranteed by the LMRDA are distinct from one another, and it is well established that a union member may bring a suit to redress a violation of § 101(a)(2) free speech rights even if no due process violation is shown." Maddalone, 152 F.3d at 183.
It is well-settled that elected union officials, such as Green and Orrigo, can properly challenge their removal from office on the basis of retaliation for protected activity. In Lynn, the Supreme Court held that the retaliatory removal of an elected official (as opposed to an appointed official) for statements the official made at a union meeting in opposition to a dues increase was actionable. Lynn, 488 U.S. at 355. The Court explained that when an elected union official is removed for exercising his free speech rights, members are denied the representative of their choice. Id. at 354 (holding that the removal of an elected official directly frustrated "the LMRDA's basic objective: to ensure that unions [are] democratically governed, and responsive to the will of the union membership as expressed in periodic elections") (quotation marks omitted). Further, the Court emphasized that there is a potential chilling effect on the official's exercise of his free speech rights as well as those of the members who voted for him. Id. at 355 ("[T]he potential chilling effect on Title I free speech rights is more pronounced when elected officials are discharged. 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.") (citations omitted).
Although an appointed official cannot sue his union for mere retaliation, see Finnegan, 465 U.S. at 441-42; Lynn, 488 U.S. at 355, an appointed officer's removal from office is actionable where it "was part of a purposeful and deliberate attempt . . . to suppress dissent within the union . . . because the rights of union members to belong to an open democratic labor organization are infringed when a dominant group strives to stifle dissent and efforts at reform through removal of a political opponent from office," Maddalone, 152 F.3d at 184 (quotations and citations omitted). These cases are rare, however. "To fall within this exception, a plaintiff must present clear and convincing proof that her dismissal was part of a series of oppressive acts by the union leadership that directly threaten the freedom of members to speak out." Id. Here, Brigham has asserted that the plaintiffs have not alleged retaliation because, among other reasons, they have not sufficiently alleged a scheme to suppress dissent under Maddalone. I need not address this argument because plaintiffs, as elected officials, need only allege a garden-variety retaliation claim under Lynn. See Gilvin v. Fire, 259 F.3d 749, 759 n. 14 (D.D.C. 2001) ("At least with respect to elected officers . . . the Supreme Court expressly rejected the contention `that a union official must establish that his firing was part of a systematic effort to stifle dissent within the union in order to state a claim.' Lynn, 488 U.S. at 355 n. 7. Thus, [plaintiff's] free speech claim depends only upon whether he can show retaliation against protected expression. He need not demonstrate any broader `scheme.'")
The allegations made in the plaintiffs' complaint state a claim under the theory set forth in Lynn. Despite the apparently undisputed fact that they misappropriated funds, Green and Orrigo have asserted that "[t]heir rights were violated as part of a political vendetta" against them for their opposition to "several policies promulgated by IUEC leadership, including Brigham," and for Orrigo's "proposal to remove Local One from the IUEC Health and Welfare Plan, a move that would have meant a shift of between $25,000,000 and $30,000,000 annually away from IUEC control." (Compl. ¶ 8.) The complaint further alleges that
The first issue [of contention] centered around ratification of collective bargaining agreements. Another issue dealt with eligibility to hold office as IUEC Executive Vice President. The convention delegates ultimately adopted Green and Orrigo's position over the strong objections and opposition of Brigham. The final issue raised at the convention centered around the adoption by the delegate of a resolution to provide Local One with a paid, full-time organizer.
( Id. at ¶ 14.) The complaint also speaks of other conflicts, and of the plaintiffs' voicing of their dissent after the 2001 convention:
The second set of issues dealt with disputes occurring since the convention held in 2001. The first problem was raised by Green and Orrigo relating to Local One's exclusion from the benefits of the IUEC Apprentice Program. Another dispute revolved around the National Elevator Industry Health and Benefit Fund and inquiries about forming a separate health plan for members of Local One.
( Id. at ¶ 14.) As stated earlier, Green and Orrigo claim that although they were convicted for violation of the IUEC's Constitution prohibiting misappropriation, they were in reality charged and removed as payback for speaking out against the IUEC policies promulgated by Brigham and other union leaders.
Brigham contends that Green and Orrigo have failed to state a claim as a matter of law for two reasons: (1) they have not alleged a causal connection between the complained of acts and their speech activity; and (2) they were brought up on charges and ultimately punished for activities that were in no way related to their disagreements with the IUEC leadership generally, or with Brigham in particular. Although these reasons, if supported by the evidence, may prove powerful at the summary judgment stage, here they are premature.
Brigham's claim that the causal connection alleged in the complaint is insufficient is easily disposed of. To establish a claim for retaliation, a plaintiff must show that (1) her conduct constituted "free speech" under the LMRDA, (2) the speech was the reason the union took action against her, and (3) damages. See Milne v. Int'l Ass'n of Bridge, Structural, Ornamental Reinforcing Iron Workers, Local 15, 156 F. Supp. 2d 172, 182 (D. Conn. 2001); Commer v. McEntee, 121 F. Supp. 2d 388, 396 (S.D.N.Y. 2000). Only the second prong is disputed here. Green and Orrigo allege that the impetus for the alleged retaliatory action was their expression of dissent at and after the 2001 convention. Even assuming that, as a matter of law, there can be no causal connection between the events in 2001 and the dismissal in 2003, there can be such a connection between events since 2001 (which could encompass events in 2003) and the plaintiffs' dismissals in 2003. Construing the allegations in a light most favorable to Green and Orrigo, as I must on a motion to dismiss, I cannot say that there is no set of facts that the plaintiffs can establish to prove the causal connection between the protected activity and the purported retaliation.
Whether the dismissals are actionable as retaliation under the circumstances presented in this case presents a closer question. The charge brought and pursued against Green and Orrigo concerned conduct completely unrelated to their exercise of free speech. Typically, the cases alleging retaliatory action based on protected speech involve punished conduct that is related to the speech itself. See, e.g., Petramale v. Local No. 17 of Laborers Int'l Union of N. Am., 736 F.2d 13 (2d Cir. 1984) (discipline imposed invalid where charges included, as at least one element, plaintiff's allegedly slanderous accusations against union officers,); Quinn v. Chiofalo, No. 03 Civ. 1312, 2003 WL 22952859, at *7 (E.D.N.Y. Aug. 26, 2003) (prosecution for defamation may violate Section 101(a)(2)); DeCarlo, 977 F. Supp. at 624 (free speech rights violated where charged and prosecuted for libel and slander). It is well-settled that such action is wrongful under the LMRDA. See Petramale, 736 F.2d at 16 ("[W]hen discipline is imposed on the basis of a combination of factual allegations, an essential element of which is protected speech, the discipline as a whole is invalid under the LMRDA.").
Nevertheless, courts have recognized that retaliation claims will lie, even where the charged conduct is not speech-related. In Commer v. McEntee, the court granted the defendant's Rule 12(b)(6) motion under circumstances similar to those presented here. 145 F. Supp. 2d 333, 340 (S.D.N.Y. 2001) (referring to prior decision concerning preliminary injunction in same case, 121 F. Supp. 2d 388, 397-98 (S.D.N.Y. 2000)), aff'd in part vacated in part, Commer v. Giuliani, No. 01-7783, 2002 WL 826462 (2d Cir. May 1, 2002) (unpublished). In Commer, the plaintiff had alleged that he was the victim of retaliation based on his ongoing dissent and criticism of certain policies and actions of union officials. The charges filed against him, and the decision arising from it, however, were unrelated to his dissent; they concerned the plaintiff's unauthorized mailing and his failure to comply with the decision to make restitution to the local union for previous unauthorized mailings. The Second Circuit reversed, stating that "[i]f [the plaintiff] is able to establish that his suspension was motivated by his speech rather than by his breach of a union rule, he may be able to obtain relief." Commer, 2002 WL 826462, at *2; see also Perry v. Int'l Longshoremen's Assoc., 638 F. Supp. 1441, 1448-50 (S.D.N.Y. 1986) (the fact that plaintiff was disciplined for a violation of a wage scale provision, i.e., improperly negotiating contracts, does not preclude plaintiff from demonstrating that improper retaliation was "a motive" for the expulsion, because an inquiry of procedural fairness under section 101(a)(5) includes "whether the discipline was merely a pretext . . . for a member's exercise of protected Title I rights.").
F. Newly Alleged Claims under Section 301(a)
In their complaint, plaintiffs alleged only violations of the LMRDA. In their memorandum in opposition to Brigham's motion to dismiss, however, they assert claims under Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185.
Section 301 of the LMRA prohibits violations of "contracts between labor organizations." 29 U.S.C. § 185(a). A union's constitution has been interpreted to be a "contract" under Section 301. See Wooddell v. Int'l Bhd. Of Elec. Workers, Local 71, 502 U.S. 93, 98 (1991); Shea v. McCarthy, 953 F.2d 29, 30-31 (2d Cir. 1992). While violations of an international union's constitution (which involves an agreement between the international and its constituent locals) are actionable, violations of a local union's constitution (which involves disputes between an individual member and a union) are not. See, e.g., Dinuzzo v. Local 79, Laborers Int'l Union of N. America, AFL-CIO, No. 03 Civ. 4112, 2003 WL 2178596, at *2-3 (S.D.N.Y. June 16, 2003); Messina v. Local 1199, SEIU, 205 F. Supp. 2d 111, 126 (S.D.N.Y. 2002); Rodriguez v. Int'l Bhd. of Teamsters, No. 98 Civ. 8849, 1999 WL 816182, at *3 n. 3 (S.D.N.Y. Oct. 13, 1999); Weiss v. Mahoney, 987 F. Supp. 212, 220 (E.D.N.Y. 1997); see also Abrams v. Carrier Corp., 434 F.2d 1234, 1248 (2d Cir. 1970) (whether Section 301 creates federal jurisdiction over claim arising under local constitution is "open to grave doubt"). Thus, to the extent plaintiffs claim violations of Local One's Constitution, these claims are not actionable under Section 301.
In their opposition papers, the plaintiffs appear to assert violations of the IUEC's Constitution under Section 301 as a statutory basis for their first, eighth and ninth causes of action. In light of the expressed intention to advance these claims, and of the fact that leave to amend the complaint to assert them ought freely to be given, see Fed.R.Civ.P. 15(a), I will construe the complaint to allege them. I address each of them below.
As to the first cause of action, plaintiffs assert that "notwithstanding the clear language of the . . . IUEC Constitution, they were not given a hearing before the Local One Executive Board." (Pls' Mem. Law Opp. at 4); ( see also Compl. ¶ 13 (same)). Krull filed the charges by letter with Brigham, and requested that the IUEC General Executive Board (the "Board"), rather than Local One, hear the charges. Brigham has cited provisions of the IUEC's Constitution that authorize the IUEC General President to appoint a hearing panel if a majority of the members of a local executive board are disqualified from acting on charges against a local officer seeking removal of that officer. (IUEC's Const. Art. XVIII, Sec. 8, at 62.) The IUEC's Constitution further provides that the Board has original jurisdiction to appoint a panel of hearing officers to hear charges brought against a local union officer for violations of the IUEC Constitution. (IUEC's Const. Art. XVII, Sec. 9, at 62-63). Despite these provisions, the plaintiffs maintain that the IUEC Constitution was violated because the local union should have presided over the charges and the hearing. ( See, e.g., Tr. at 23-25.) Based on the provisions that Brigham has pointed out, it seems like he will ultimately prevail on the merits, but at this early stage I may not properly address the merits of plaintiffs' claim.
As to the eighth cause of action, plaintiffs have alleged that the IUEC's Constitution grants union members a right to appeal all hearing panel decisions to the Board. For this proposition, they appear to cite to the IUEC's Constitution, Article XVIII, Section 11, which provides: "An appeal may be lodged with the General Executive Board by any member found guilty after trial . . . provided such appeal is made on or before thirty (30) days of the act complained of. The General Executive Board shall thereafter render a decision on any such appeal." ( Id. at 64.) Specifically, plaintiffs claim there was a violation of their rights under these provisions because the Board reviewed the decision and increased the penalty on the same day, and could not have done so consistent with a fair review of the evidence. Brigham, for his part, contends that the plaintiffs have not stated a claim because they have failed to point to a specific provision in the IUEC's Constitution. I disagree. As stated, plaintiffs have pointed to at least one provision that provides a right to appeal, and I cannot say at this stage that plaintiffs will be unable to prove their claim on the merits.
Finally, as to the ninth cause of action, plaintiffs allege unspecified violations of the Trial Manual promulgated by the IUEC. (Pls' Mem. Law Opp. at 8 ("there were numerous deviations from the IUEC Trial Manual")); ( see also Compl. ¶ 22 (same)). In this respect, plaintiffs have failed to state a claim for relief. There is no support for the implicit proposition that the Trial Manual is a contract between unions. Even if there were, plaintiffs' claim of unspecified violations of the manual is too vague to be actionable.
CONCLUSION
For the foregoing reasons, Brigham's motion to dismiss the complaint is granted on all of plaintiffs' claims for relief under the LMRDA, except: (1) the second cause of action under the LMRDA, 29 U.S.C. § 411(a)(5) (alleging bias); (2) the third cause of action under the LMRDA, 29 U.S.C. § 411(a)(2) (alleging retaliation); and (3) the fourth cause of action under the LMRDA, 29 U.S.C. § 411(a)(5) (alleging inadequate preparation time). The motion is denied with respect to those three claims.With respect to the claims under Section 301 of the LMRA, I grant Brigham's motion to dismiss the ninth cause of action (Trial Manual violations), and any causes of action based on alleged violations of Local One's Constitution. As to the remaining claims under Section 301 of the LMRA, that is, the first cause of action (the filing of charges and the holding of the hearing by the IUEC) and the eighth cause of action (right to appeal), the motion to dismiss is denied.
So Ordered.