Opinion
01-CV-0442E(Sc)
September 26, 2003
MEMORANDUM and ORDER
This decision may toe cited in whole or in any part.
Plaintiffs commenced this action June 21, 2001 alleging, inter alia, that defendants had violated their rights under the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 401 et seq. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") dismissing plaintiffs' claims. For the reasons stated hereinbelow, defendants motions will be granted.
The following facts are undisputed unless otherwise noted. Plaintiffs are both members of the International Union of Bricklayers and Allied Craftworkers ("International or International Union"), Local # 45 ("Local # 45 or Union"). On February 17, 2000, Local # 45 held a monthly meeting during which Hughes took the floor when the subject of new business came up and expressed his criticism toward Local # 45's Executive Board. The criticism led to a heated exchange between Hughes and members of the Executive Board during which Hughes allegedly became disruptive and directed profanities at other union members, Hughes was eventually thrown out of the meeting by Rose. Hughes Aff. ¶ 27. After the meeting, Hughes and several other union members went to a bar located in the same building where the meeting was held and, without authorization, charged a bar tab in the amount of $49.60 to Local #45 (hereinafter known as the bar tab incident"). Lechner Aff. ¶ 13.
Local #45 was an affiliate of the Western New York Administrative District Council of the International Union of Bricklayers and Allied Craftworkers. The Administrative District Council ("ADC") comprised three local unions — to wit, Local #45 in Buffalo, N.Y., Local # 11 in Rochester, N.Y. and Local # 8 in Ithaca, N.Y. On October 8, 2001, the Executive Board of the International Union merged the three local unions of the ADC into one union, now known as Local # 3. see January 24, 2003 Affirmation of Nathan A. VanLoon, Esq., Ex. O.
Apparently, Hughes had been upset with some previous Incidents Involving Union leadership. In November 1999, Hughes had been working at a construction project in Niagara Falls, N.Y. for Thomas Johnson Masonry during which a jurisdlctional dispute arose between Local # 45 and another labor union. Marty Bryant, the job steward, attempted to contact Field Representatives Lechner, Rose, and Herman to settle the dispute but was unable to reach them. Hughes Aff. ¶¶ 10-11. At a union meeting on November 18, 1999 Hughes confronted Lechner, Rose, and Herman about the dispute, id. ¶¶ 12 — The following day, Rose and Herman went to the Niagara Falls job-site and asked each union employee if they wanted to file charges against Thomas Johnson Masonry regarding the jurisdlctional dispute. Hughes told them that the problem did not Involve the jurisdlctional dispute but rather the fact that the Field Representatives did not respond to union members concerns. Hughes alleges that, since Rose was not doing his job properly as a Field Representative, he wanted to divert the problem to 1 homas Johnson Masonry. Id. ¶¶ 17-20. On January 20, 2000 Hughes was laid off from Thomas Johnson Masonry and he has not been employed in any union capacity since that time. Compl. ¶¶ 26-27. Although the defendants claim that Hughes was laid off because the project at Niagara Falls High Ochool was almost finished, Hughes contends that he and two other bricklayers were actually replaced by other workers. Ibid.
Prior to the merger and dissolution of local #45, the relevant individual defendants held the following positions: Rose was the President of Local #45 Herman was Vice President of Local #45 and also a Field Representative for the ADC — see footnote 2 — Lechner was the Director of the ADC and also served for a time as Local $40's financial Secretary.
On March 14, 2000, seven members of the union, Including Herman, Aberhorn and Benk, filed internal union charges against Hughes for his conduct at the February 17, 2000 meeting. A trial was held on April 3, 2000 and Hughes was found guilty on all the charges, fined $750 and suspended from all membership privileges, including, but not limited to, attending meetings, voting, running for office and all union-sponsored events, until January 1, 2001. Hughes appealed the decision to International on April 6, 2000.
Pursuant to Code 6 of the International Constitution, a charge may be filed against any member of International or against any affiliate member. If the charge is against an affiliate member, it must be filed with the Secretary-Treasurer of the local union. The charges must be in writing, must be filed within 30 days from the date of the alleged violation and must state the provision of the Code of the International Constitution or laws of an affiliate allegedly involved. Michele A. Smith, Esq. Aff., Ex. C, PP. 77-78.
Hughes was charged with violating Articles XIII, (1)(D),(H) and (K) and Appendice Code 5(1)(I),(1) and (S) of Local #45's Constitution and Code 5(1)(I), (1), (S) and (T) of the International Constitution. The specific conduct alleged by the charges were that Hughes used offensive, obscene and abusive language in excess of ten times and that he threatened another union member with bodily harm. See Smith Aff., Exs. 5, 6.
The procedural requirements regarding trials and appeals are outlined in Code D of the International Union Constitution. Cases are tried by a Trial Committee of the local union with whom the charges were filed. The Trial Committee consists of three members and no local elected officer is eligible to be a member of the Trial Committee. The charged parties are notified of the body before whom the trial is to be held and of the date and place of the trial. Trials should be held as promptly as possible after the charge is filed, but not less than fifteen (15) days from the date of the notice of trial. A charged party may challenge any member of the trial body because of an alleged Interest or bias by submitting his challenge in writing to all members of the trial body along with the basis for the challenge. If a challenge is not made, a party may not later claim that the tribunal was unfairly constituted. The charged party and the charging party must each appear at the trial, along with any witnesses they wish to present. If the charged party does not appear, the trial body may, if presented with evidence sustaining the charge, find him guilty and impose punishment. The trial body may Impose any penalty not inconsistent with the International Constitution or any applicable Constitution or law of an affiliate, including an order to perform or refrain from performing any specified acts. Van Loon Aff., Ex. C, pp. 77-85.
Hughes alleges that the 1 rial Committee, which consisted of Liscom, Vaillancourt and Wittman, was not properly appointed according to the International Constitution. Compl. ¶ 44. Hughes also alleges that his trial was conducted improperly because Rose, who was an Interested party in the proceedings, served as the presiding judge, gave an opening and closing statement, Interrupted his opening statement, ejected one of his witnesses from the proceeding and failed to inform him of his rights at trial regarding the examination and cross-examination of witnesses, Id. at ¶ 46.
Appeals from the local Trial Board must be made to International's Executive Board if the punishment ordered is a fine over $250, expulsion or removal from office and must be made within 30 days from the trial body's written notice of decision. The appellate body may in its discretion provide for a retrial of any or all issues. If so, the parties shall be notified and given an appearance date not less than fifteen (15) days from the date of notice. Van Loon Aff., Ex. C, pp. 85-88.
On March 22, 2000, Lechner charged Hughes and seven other union members with violating several provisions of the Union's Constitution for their alleged participation in the bar tab incident. Hughes was subsequently tried on April 12, 2000 and found guilty on all of the charges. Consequently, Hughes was fined $500, suspended from all membership privileges until January 1, 2002 and placed on probation until January 1, 2003. Hughes was also warned that, if he was found guilty of any other offense, he would be expelled from the union. See Smith Aff., Ex. 10. He appealed this decision to International on April 26, 2000. Compl. ¶ 66. Hughes subsequently received a May 17, 2000 letter from International Indicating that the fines previously imposed on him by the Trial Board were stayed pending his appeals. Smith Aff., Ex. 12. On May 3, 2000 Hughes filed an unfair labor practice claim with the National Labor Relations Board ("NLRB") against Local #45 with regard to his lay off from Thomas Johnson Masonry. Hughes alleged in the charge that Local #4b, through its officers, agents and representatives, had caused Thomas Johnson Masonry to lay him off and had also caused another employer, Progressive Weatherproofing, to refuse to hire him. See May 3, 2000 NLRB Charge — Smith Aff., Ex. 18. NLRB's Regional Director dismissed Hughes charge on July 26, 2000. Id., Ex. 19. Hughes never appealed that determination.
The charges alleged violations of Articles XIII (1)(D) and (K) of Local #45's Constitution and Codes 5(1)(G), (J) and (T) of the International Constitution. Smith Aff., Ex. 8.
Although Hughes pleaded not guilty to the charges and contends that two other union members — viz., John Darcy and Mike Divirgilio — had created the bar tab and forged his name to it, he admitted his participation in the Incident in a signed statement wherein he stated that he had consumed two alcoholic beverages on the unauthorized bar tab. Smith Aff., Ex. 9.
Hughes subsequently began working for Pepe Rodems Company, Inc., a non-union contractor, and, as a result, was charged on June 8, 2000 by Herman with violating several provisions of the Union's Constitution that prohibit its members from working for non-signatory contractors. A trial was held on June 29, 2000 and Hughes was found guilty on all charges, fined $1,000 and expelled from the Union. The expulsion, which was based on the fact that he had been previously placed on probation, was stayed by the Trial Board pending the outcome of Hughes prior appeals. Compl. ¶¶ 75-78. Hughes appealed this decision to International's Executive Board on July 26, 2000.
International's Executive Doard rendered a consolidated decision on Hughes three appeals on February 12, 2001. The charges pertaining to Hughes conduct at the February 17, 2000 Union meeting and his alleged participation in the bar tab incident were remanded back to Local #45's Trial Board because of procedural deficiencies and Hughes conviction for working for a non-union contractor was upheld but remanded for a reevaluation of the penalties. Hughes was retried on June 19, 2001 and found guilty in absentia on the first two charges — viz., for his conduct at the February 17, 2000 meeting and the bar tab incident — and fined $200. Smith Aff., Ex. 17. Hughes did not appeal that decision and he subsequently commenced the present action pursuant to 29 U.S.C. § 411 (a)(1), (2) and (4), alleging that (1) he had been charged and convicted by Local #45 for exercising his free speech rights at the February 17, 2000 meeting, (2) Local #45 exceeded its authority in imposing a punishment of suspension inasmuch as such a penalty is not authorized by the Union's Constitution, (3) "International's slow pace of handling his appeals damaged his ability to get work and his standing within the Local #45's membership, (4) defendants violated 29 U.S.C. § 415 because the full provisions of the LMRDA are not outlined in the Union Constitution, (5) defendants intentionally and maliciously defamed his good character within the Union, (6) he has been unable to obtain gainful employment since the defendants conspired with Thomas Johnson Masonry to remove him from his job and (7) he has been blackballed by the defendants and been unable to acquire any Union employment in Erie or Niagara County. Compl. ¶¶ 48-53, 81-83.
In its Order of Remand, the Executive Board ruled that Rose should not have participated in Hughes first trial because he was an interested party inasmuch as the charges alleged that Hughes had directed expletives toward him at the February 17 Union meeting. February 12, 2001 Order of Remand, at 2 — Smith Aff., Ex. 16. In addition, the Executive Board held that Hughes conduct in expressing criticism of Local #45's Executive Board could not serve as the basis for any of the charges because such speech was protected by federal law, and cannot serve as the basis for union discipline. Ibid. With respect to the bar tab incident, International reversed the decision of the 1 rial Board because the evidence against him consisted only of written statements of other charged union members and because Hughes did not have the opportunity to confront and cross-examine any live witnesses. Ibid.
The Executive Trial Board upheld the Trial Board's decision of guilt but reversed the penalty imposed — to wit, a fine and expulsion from the union — because such discipline was premised on the earlier convictions, which were subsequently reversed. Smith Aff., Ex. 16 — Order of Remand, at 2-3.
Although Hughes had been notified of the date of the re-trial, he chose not to appear because he states that by that time he was preparing [for] litigation against the Union. Hughes Dep., at 90; Smith Aff., Ex. 17.
The relevant provisions of section 411(a) read:
"(1) Equal rights
Every 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, subject to reasonable rules and regulations in such organizations constitution and bylaws.
(2) Freedom of speech and assembly
Every member of any labor organization shall have the right to meet and assemble freely with other members, and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an Institution and to his refraining from conduct that would Interfere with Its performance of Its legal or contractual obligations.
(4) Protection of the right to sue
No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding, or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator: Provided. That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof. And provided further, That no Interested employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition." 29 U.S.C. § 411 (a)(1), (2) and (4).
The following facts pertain to plaintiff Burke's allegations. Burke, a member of Local #45 since May of 1999, was charged with violating several provisions of the Union Constitution for his conduct at a union meeting on July 20, 2000. According to the charges, Scott Benk, Local #45's Sergeant-at-Arms, alleged that Burke had physically assaulted him at the meeting and that Burke had interfered with his duties as Sergeant-Arms in attempting to escort another union member from the meeting. Burke, who does not dispute that he was involved in a physical altercation with Benk, has offered an explanation for his actions. According to Burke, Rose had ordered Benk to remove Mike O'Malley from the meeting after O'Malley had criticized union leadership. Burke Aff. ¶¶ 19-22. Burke claims that Benk then physically attacked O'Malley by punching him in the torso and head. Id. ¶ 24. Burke contends that he intervened in order to protect O'Malley from the beating and eventually managed to get O'Malley out of the meeting without further Incident. Compl. ¶¶ 90-91; Burke Aff. ¶¶ 19-28. Burke was tried on August 9, 2000 and found guilty on all charges, fined $450 and suspended from union membership until February 9, 2001. Burke appealed the decision on September 13, 2000 to International's Executive Board. The Executive Board Issued an April 4, 2001 Order by which the case was remanded to Local #45's Trial Board for a new trial because Rose had improperly participated and presided over Burke's trial even though he had been involved in the underlying Incident. April 4, 2001 Order of Remand — Smith Aff., Ex. 25. To date, no retrial has been conducted. Burke Aff., ¶ 45.
Benk alleged in the charge that he initially attempted to escort O'Malley From the meeting because he was intoxicated and repeatedly disrupted the proceedings. Smith Aff., Ex. 23.
The Trial Committee consisted of Liscom, Vaillancourt and Wittman.
Burke claims that, after the August 9, 2000 decision by Local #45's Trial Board, he was not rehired by the International Masonry Institute ("IMI") to be a Plasterer Instructor for a four-week course in 2001 Compl. ¶¶ 99-101. Burke subsequently filed unfair labor practice charges with the NLRB on February 28, 2001 against Local #45, the JATC and IMI essentially alleging that Local #45 and the JATC caused IMI to terminate his employment as an Instructor. See February 28, 2001 NLRB Charge — Smith Aff., Ex. 26. On June 4, 2001 the NLRB Regional Director sent Burke a letter informing him that an investigation into his charges had failed to reveal sufficient evidence to substantiate his allegations and that his charges were being dimissed. See Smith Aff., Ex. 27. Burke did not appeal that determination. Burke Dep., at 144 — Declaration of E. Joseph Giroux, Jr., Esq., Ex. D. Burke subsequently commenced this action pursuant to sections 411 and 415 of the LMRDA and alleging (1) that he had been "blackballed" by the Union and, as a result, been unable to obtain steady employment, (2) that defendants Intentionally and maliciously defamed his character and good name, (3) that the Union's Constitution does not set forth the provisions of the LMRDA in violation of section 415 and (4) that he was stripped of his Instructor position in reprisal for exercising his rights to free speech and assembly in violation of 29 U.S.C. § 411. Compl. ¶¶ 97, 103-106.
By way of background, Burke had previously been employed by the IMI to teach a plastering course From February until April of 2000. Compl. ¶ 86; Burke Dep., at 5 — Smith Aff., Ex. 29. Such employment was apparently facilitated by Herman, a union — appointed Coordinator of Local #45's Joint Apprenticeship 1 raining Committee ("JATC"). The JATC was a program established by Local # 45 and participating employers designed to provide training to craftworkers and bricklayers. Although Burke claims that the Union prevented him from being rehired as an Instructor in 2001, see Compl. ¶ 99, Herman states that his recommendation to the JATC that Burke not be rehired for the course in 2001 was based solely upon the JATC's poor evaluation of Burke's prior conduct as an Instructor. Herman Aff. ¶ 7.
See footnote 18.
Specifically, the letter stated that "it does not appear that further proceedings are warranted, in as much as the Investigation revealed Insufficient evidence that the [IMI] did not rehire you for the [JATC] plastering course for 2001 because you engaged in dissident activities involving [Local #45]. Rather, it appears that you were not re hired because of your conduct as Instructor during the 2000 plastering course. Smith Aff., Ex. 27.
FRCvP 56(c) states that summary judgment shall be rendered forthwith if the pleadings, depositions, answers to Interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine Issue as to any material fact and that the moving party is entitled to judgment as a matter of law". A genuine issue of fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986. In deciding whether summary judgment is appropriate, this Court must draw all factual inferences in favor of the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact). Furthermore, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
Defendants have all moved for summary judgment via three separately filed motions. In support of their summary judgment motions, defendants argue that (1) plaintiffs have failed to exhaust their administrative remedies, (2) plaintiffs claims are pre-empted by the exclusive jurisdiction of the NLRB and (3) plaintiffs have failed to state a claim upon which relief may be granted. Each argument will be addressed In turn.
The three motions were filed by the following groups of defendants: (1) Local #45, Rose, Aberhorn, Benk, Lriscom, Vaillancourt and Wittman, (2) The ADC, Merman, Lechner and Remington and (3) The International Union. Defendants have all premised their motions on similar arguments and, to the extent that it is practical, such will be collectively discussed.
In support of their first contention, defendants argue that plaintiffs have not exhausted the Union's administrative procedures in as much as neither one of them has appealed the relevant decisions of the Trial Board. A court may require a union member to exhaust intra-union remedies prior to bringing suit against his union. Johnson v. General Motors, 641 F.2d 1075, 1078 (2d Cir. 1981). Holding a "plaintiff to such a requirement lies within the court's discretion and in deciding whether to apply the exhaustion doctrine, a court must balance the right of union members to Institute suit against the policy of judicial noninterference in union affairs." Id. at 1079. Three factors are relevant to such a determination:
Hughes commenced this action without appealing the Local Trial Board's June 19, 2001 decision. Although Burke's first trial was remanded to the Local Trial Board by the International's Executive Board on April 1, 2000, no such retrial has occurred.
"[F]irst, whether union officials are so hosfile to the employee that he could not hope to obtain a fair hearing on his claim) second, whether the Internal union appeals procedures would be Inadequate either to reactivate the employee's grievance or to award him the full relief he seeks ***; and third, whether exhaustion of Internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim. Maddalone v. Local 17d Bhd. of Carpenters, 152 F.3d 178, 186 (2d Cir. 1998) (citing Clayton v. Int'l Union, UAW, 451 U.S. 679, 689 (1981)).
The union bears the burden of establishing that its procedures meet such requirements. Ibid.
However, the Court need not linger on the issue because, despite the existence of such a clearly defined burden, defendants have not even attempted to address the factors mentioned above. Instead, defendants simply argue, in a conclusory fashion, that plaintiffs should be required to exhaust their intra union administrative procedures because they have abandoned any such procedures in favor of litigation. Such an omission can only lead the Court to conclude that defendants cannot meet their burden in showing that its intra-union procedures meet the requirements mentioned above. In any event, the evidence shows that requiring plaintiffs to exhaust the Union's procedures would unreasonably delay their opportunity to obtain a judicial hearing on the merits. Although the Union's Constitution and By-laws provide for a comprehensive framework, regarding trials and appeals, defendants have offered no evidence whatsoever tending to show that any such appeal would be resolved within four months. See Johnson, at 1080 (holding that in order for a union to meet its burden with regard to the exhaustion defense it must establish the reasonableness of the procedures specified by the union, including the likelihood that relief may be obtained within four months"). Accordingly, plaintiffs will not be required to exhaust the Union's administrative procedures.
The Court now addresses whether any of plaintiffs claims are preempted by the jurisdiction of the NLRB. Defendants contend that plaintiffs claims are preempted because (1)such claims are premised on the same conduct as that which was alleged in plaintiffs' NLRB complaints and (2)the conduct alleged in plaintiffs instant complaint is "arguably subject to the NLRB." Defs. December 30, 2002 Mem. Law, at 4; see San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959) (holding that Federal and State courts must defer to the exclusive competence of the NLRB with regard to activities that are arguably subject to the National Labor Relations Act); Local 100, United Assoc. of Journeymen and Apprentices v. Borden, 373 U.S. 690, 694 ([T]he first inquiry, in any case in which a claim of federal preemption is raised, must be whether the conduct called into question may reasonably be asserted to be subject to [NLRB] cognizance. "). The Court agrees to the extent that some, but not all, of plaintiffs claims are preempted by the exclusive jurisdiction of the NLRB.
In their Complaint, plaintiffs allege that they were blackballed and that defendants had both caused them to lose employment and obstructed their ability to obtain gainful employment. See Compl. ¶¶ 82-83, 99-106. Such conduct squarely falls within the scope of the unfair labor practices that are prohibited by the NLRA. See Iron Workers v. Perko, 373 U.S. 701, 706-708 (1963) (holding that plaintiff's state law claim that included allegations that the union caused his discharge from employment and subsequently prevented him from obtaining employment was preempted by the jurisdiction of the IN NLRB because such conduct fell within the ambit of the unfair labor practices prohibited by the NLRA); Borden, at 694-698 (holding that union member's state law claims premised on allegations that his union had intentionally obstructed his ability to obtain employment were preempted by the jurisdiction of the IN NLRB). Indeed, the relevant allegations in plaintiffs' Complaint are nearly Identical to their allegations contained within their NLRB charges that they filed against defendants. See Compl. ¶¶ 82-83, 103; NLRB Charges — Smith Aff., Exs. 18, 26. Accordingly, plaintiffs claims against defendants that are premised on allegations of blackballing, job loss or interfering with their ability to obtain employment — as contained in paragraphs 82, 83 and 103 of the Complaint — are all preempted by the exclusive jurisdiction of the NLRB and will be dismissed here.
See, e.g., 29 U.S.C. § 158 (a)(3), (b)(1) and (2) (stating that It is an unfair labor practice for a labor organization to (1) restrain or coerce employees in the exercise of their rights as guaranteed by the NLRA or (2)cause or attempt to cause an employer to discriminate against an employee with regard to the hiring or terms of conditions of his employment).
It is Important to note that, in their Complaint, each plaintiff has asserted one single cause of action pursuant to the LMRDA. However, under each such cause of action plaintiffs have asserted numerous allegations and theories of liabilities. 1 hough certainly not a model of clarity, the Complaint's allegations pertaining to blackballing and job losses do not explicitly Include allegations that such conduct was done in retaliation for, or as a result of, plaintiffs activities that are protected by the LMRDA. See Compl. ¶¶ 82-83, 103. While such allegations are ostensibly listed under the umbrella of each plaintiffs cause of action pursuant to the LMRDA, the specific conduct alleged in plaintiffs' Complaint regarding blackballing and job loss does not relate to any LMRDA violation. Thus, unlike plaintiffs claims that specifically allege LMRDA violations, plaintiffs allegations regarding blackballing and job loss — which are virtually the same as the allegations in their NLRB complaints — are preempted because such conduct is subject to the jurisdiction of the NLRB. See Borden, at 696 (finding that preemption applies when it is reasonably arguable that the matter comes within the [NLRB's] jurisdiction "). In addition, the Court rejects plaintiffs attempts to rely on a distinction between state law claims that are preempted and federal LMRDA claims that are not preempted. See Pls. Mem. Law, at 6-8. It Is not the type of claim that matters with regard to a preemption analysis but, rather, the type of conduct alleged.
However, plaintiffs other claims, which are premised upon alleged conduct that is prohibited by the LMRDA, are not preempted by the NLRB. The plain language of the LMRDA indicates that Congress did not intend for the NLRB to have jurisdiction over LMRDA claims." Gurley v. Hunt, 287 F.3d 728, 731 (8th Cir. 2002) see also Vandeventer v. Local Union No. 513, Int'l Union of Operating Engineers, 579 F.2d 1373, 1377 (8th Cir. 1978) ("In enacting the LMRDA ***, Congress expressed a clear intention to grant federal courts jurisdiction over claims of improper union discipline of members, thereby superceding the exclusive jurisdiction of the NLRB."). Moreover, the jurisdiction conferred on this Court by 29 U.S.C. § 412 overrides the preemption doctrine. See Int'l Bhd. of — Doilermakers v. Hardeman, 401 U.S. 233, 239 (1971) (holding that secion 412 of the LMRDA explicitly vests district courts with jurisdiction over LMRDA claims); see also Vandeventer, at 1377 ("[T]he grant of federal court jurisdiction contained in 29 U.S.C. § 412 overrides the preemption doctrine."). Thus, plaintiffs' LMRDA claims, which include allegations that they were punished, or retaliated against, by the Union for exercising their rights to free speech — see Compl. ¶¶ 48, 80, 89, 104 — are not preempted by the jurisdiction of the NLRB.
Section 412 provides as follows:
Any person whose rights secured by the provisions of this sub chapter have been Infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including Injunctions) as may be appropriate. Any such action against a labor organization shall be brought In the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.
Next, defendants argue that plaintiffs have failed to state a claim upon which relief may be granted. Specifically, defendants contend that the LMRD provides that a union may adopt and enforce reasonable rules pertaining to the conduct of its members and that neither plaintiff can show that the Union's rules by which they were charged and convicted are unreasonable. Defs. Mem. Liaw, at 6. In addition, defendants argue that plaintiffs have not shown a violation of section 411(a)(1) and have not submitted any credible evidence that they were damaged by the alleged conduct of defendants. Ibid. Lastly, defendants assert that plaintiffs have failed to state a cause of action under 29U.S.C. § 415 because neither had requested the pertinent information from the Union prior to bringing a claim for failure to disclose such information. Id. at 7. The Court agrees and will grant summary judgment to defendants.
To begin, plaintiffs have failed to present any evidence that their rights under section 411(a)(1) were violated inasmuch as they have not alleged that they were somehow discriminated against by defendants. To be viable, a claim under [section 411(a)(1)] must *** allege the denial of some privilege or right to vote which the union has granted to others. Members For A Better Union v. — Bevona, 152 F.3d 58, 65 (2d Cir. 1998) The only pertinent allegation made by either plaintiff is Hughes assertion that the punishment imposed on him by Local # 45 — viz., suspension of his membership privileges — was a violation of section 411(a)(1). Such an allegation simply fails as a matter of law to state a claim under section 411(a)(1) because it does not include any allegation that other similarly-situated members — to wit, members who have been convicted of similar charges — had not received the same punishment or were treated any differently than Hughes. section 411(a)(1) "is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote. Calhoon v. Harvey, 379 U.S. 134, 139 (1964); see also Bevona, at 65 (stating that section 411(a)(1) "curbs no abuse other than discrimination against some union members and in favor of others with respect to voting rights). Plaintiffs section 411(a)(1) claim will therefore be dismissed inasmuch as plaintiffs have failed to allege that they were somehow discriminated against or that their equal rights to vote in elections or attend union meetings were violated.
Hughes allegation pertaining to section 411(a)(1) states, in Its entirety, that defendants violated section 411(a)(1) by "denying [him] his privileges of voting, running For office, attending union membership meetings, and participating in the deliberation on the business of the union." Compl. ¶ 48.
Plaintiffs have also failed to put forth sufficient evidence to raise any issues of material facts regarding their section 411(a)(2) claims. Hughes alleges that defendants violated such section because he was charged and convicted for exercising his protected right to criticize Union leadership at the February 17, 2000 meeting. While the freedom of speech provision of the LMRDA has been broadly construed, and certainly protects Hughes right to express criticism at a Union meeting, it does not protect a union member's right to disrupt the orderly processes of a union meeting. See Schermerhorn v. Local 100, Transport Workers Union of Am., 911 F.3d 316, 324 (2d Cir. 1996) (holding that a union may impose reasonable rules on a member's speech in the interest of preventing disruption of union meetings); Petramale, at 17 ("[U]nions may Impose reasonable rules on the membership in the interest of maintaining order at meetings, 29 U.S.C. § 411 (a)(2), and a member's right to free speech is subject to reasonable regulations aimed at preventing the disruption of union business,"). The relevant charges against Hughes relating to his conduct at the February Union Meeting alleged that (1) he used offensive, obscene, abusive and threatening language in excess of ten times, (2) he threatened a fellow union member with bodily harm and (3) he made threatening and aggressive movements towards another union member. See Smith Aff., Ex. 5. In order for Hughes to defeat summary judgment, he would have to put forth some evidence tending to show that his charge and ultimate conviction — which was ostensibly based upon his disorderly and disruptive actions — were actually based on his criticism of the Union. Hughes simply has not made such a showing to the Court Hughes has not offered anything credible to dispute the factual allegations of the Union's charges and nowhere in the Complaint or his affidavit In opposition to summary judgment does he state that he did not commit the acts of which he was convicted. Likewise, Burke has also failed to raise any Issues of fact pertaining to his LMARDA claims. Although he attempts to explain the circumstances which led to his Involvement In a physical altercation at the July 20, 2000 Union meeting, he does not dispute either the fact that such an altercation took place or the specific factual allegation asserted in the Union Charge. Simply put, plaintiffs have not provided sufficient evidence to show that their convictions were based on any reason other than their own conduct In disrupting the orderly processes of the respective Union meetings at issue. There was no LMRDA violation therefore because the Union had sufficient evidence to charge and convict the plaintiffs with violating Its reasonable rules, which were designed to regulate the orderly processes of Its meetings.
See, e.g., Petramale v. Local No. 17 of Laborers Int'l Union of N. Am., 736 F.2d 13, 17 ("We have previously Interpreted [the LMRDA] to prohibit unions from disciplining a member for even libelous statements in union meetings criticizing the performance of union officers.").
It is Important to note that the original charges against Hughes Included a paragraph alleging that he had violated the Union Constitution by urging the abolition of a Union training program and for also directing profanities toward Local 45 and the International Union for maintenance of the training program. See Smith Aff., Ex. 5, ¶ D. Such a charge was subsequently dismissed on appeal by the Executive Board of the International Union. See Order of Remand, at 2 ("Even if this criticism was accompanied by profanity, it seems to fall well within the free speech protected by federal law, and cannot serve as the basis for union discipline.). Had those charges not been dismissed, Hughes would arguably have a cognizable LMRDA claim because, as the Executive Board correctly stated, a union member may not be disciplined for expressing criticism toward union officers. See Petramale, supra note 27, at 17. However, any possible LMRDA violation was erased by the Order of Remand and his subsequent retrial.
Indeed, Hughes admitted in his deposition that he used profanity and became disruptive at the February 17, 2000 Union meeting. See Hughes Dep., at 59-60.
Moreover, Burke has not raised any Issues of fact with regard to his claim that the Union stripped [him] of his Instructor position in retaliation for exercising his rights to free speech. See Compl. ¶ 106. Burke has failed to rebut defendants evidence that shows that (1) he was not in fact stripped of any such position and (2) he was not rehired to be an Instructor for the plastering course in 2001 because of his poor evaluations with regard to his performance as an Instructor for the course in 2000. See Herman Aff. ¶¶ 6-7.
In addition, plaintiffs have offered no concrete facts or allegations, in admissible form, from which a trier of fact could reasonably find that defendants intentionally and maliciously defamed them. Ouch claims will therefore be dismissed because plaintiffs have failed to carry their burden in opposition to defendants summary judgment motions. See Kerzer, at 400 (stating that conclusory allegations are insufficient to create genuine issues of fact).
Nevertheless, plaintiffs strenuously argue that the punishment Imposed upon them — viz., suspension from membership privileges — is either (1) unlawful according to the LMRDA or (2) not authorized by the Union's Constitution. See Pls. Mem. Law, at 3-4. The Court disagrees.
A union has the power to discipline a member by suspending his right to attend union meetings provided he has been found to have violated a legitimate rule after a full and fair hearing. Rosario v. Amalgamated Ladies Garment Cutters Union, Local 10, 605 F.2d 1228, 1238 (2d Cir. 1979). Plaintiffs have not alleged that the rules which they were convicted of violating were not legitimate nor have they shown that they did not receive a full and fair hearing. Furthermore, plaintiffs have cited no legal authority — under the LMRDA or otherwise — that would support their argument that a union member's suspension from membership privileges is not a permissible form of punishment by a union.
It is important to note that plaintiffs Complaint does not allege that defendants violated section 411(a)(5) of the LMRDA which protects, inter alia, a union member's right to a full and fair hearing prior to any disciplinary action by a union. See 29U.S.C. § 411(a)(5). In any event, to the extent that Hughes first two trials may have been procedurally defective, and arguably unfair, any such infirmities were cured by the subsequent reversal and remand of such trials by the International Union's Executive Board.
Plaintiffs have also failed to show that their suspensions were a form of punishment that was not authorized by the Union's Constitution. In support of their argument, plaintiffs cite to the disciplinary provisions of the Union's Constitution, which state, inter alia, that [a] member who violates any provision of this Constitution or the District Counsel Constitution shall be fined not less than $10.00 nor more than $250.00, except as otherwise provided, and may in certain circumstances, be removed from Office, barred from Office, or expelled from membership." Plaintiffs contend that such language does not provide a basis for the Union to impose a punishment of suspension on a union member. The Court disagrees because such a form of punishment is implicitly permissible upon a reasonable interpretation of the Union's Constitution as a whole.
Article XIII(1)(D) of the International Constitution.
The Union contends that it has consistently construed the disciplinary provisions of its Constitution to authorize a Local Union to penalize members found guilty of violations through a suspension of their membership rights. See Waldman Supp. Decl. ¶¶ 4-9. This Court must defer to such interpretation unless it is patently unreasonable. See Sim v. New York Mailers' Union No. 6, 166 F.3d 465, 470 (2d Cir. 1999) ("[A] Unions's interpretation of its own constitution is entitled to great deference in order to avoid interference with Internal union affairs and therefore, the interpretation of bylaw provisions by Union officials will be upheld unless patently unreasonable.") (citations and punctuation marks omitted). Plalntiffs have failed to show that the Union's interpretation is unreasonable. Code 6(1)(1) of the International constitution provides that a trial body may impose any penalty not inconsistent with the IU Constitution, *** including an order to perform or refrain from performing any specific acts. Such broad language, construed in conjunction with Article XIII, supports the Union's interpretation of its Constitution regarding discipline of its members. Indeed, it would be unreasonable to adopt plaintiffs interpretation because it could not plausibly be argued that the disciplinary provisions of the Union's Constitution, which allows for the expulsion of a member, do not by reasonable implication Include suspension — a less severe form of punishment than expulsion — as an available penalty. furthermore, the Union's interpretation is not unreasonable considering the broad language of the International Constitution, which provides that a Trial Board may impose any penalty not inconsistent with the IU Constitution." Plaintiffs have failed to direct the Court to any pertinent provision of the Union's Constitution that is inconsistent with the Local Trial Board's imposition of suspension. Summary judgment will therefore be granted to defendants with regard to plaintiffs section 411(a)(2) claims because plaintiffs have failed to raise any Issues of material fact regarding either the reasonableness of the Union's rules by which they were disciplined or in support of their argument that suspension is not an authorized form of punishment according to the Union's Constitution.
Finally, the Court turns to plaintiffs allegations against the International Union and their section 415 claim. Although somewhat unclear, plaintiffs causes of action against the Union seem to be premised on the International Union's allegedly slow pace in handling their intra-union appeals. See Compl. ¶¶ 51-52. International argues that such allegations do not give rise to a cognizable cause of action for monetary damages. The Court agrees.
Plaintiffs have cited no legal authority whatsoever for the proposition that a union member may recover monetary damages against its Union for the slow disposition of an intra-union appeal. Plaintiffs simply state in a conclusory fashion that International's delay in handling its appeals raises issues of material fact whether it has violated the free speech provisions of the LMRDA. However, no provisions of the LMRDA give rise to a duty by a Union to handle a member's appeal in a specific time frame or even in a prompt manner. Indeed, plaintiffs have failed to cite any cases in support of its claim and this Court's independent research has failed to locate a single case which would support plaintiffs theory of liability against International.
Plaintiffs have also failed to raise any issues of material fact regarding their section 415 claim. Plaintiffs state in their affidavits that they did not receive notice from the defendants with regard to the provisions of the LMRDA. Section 41 states in its entirety. "Every labor organization shall inform its members concerning the provisions of this chapter." International asserts that it so informed its members sometime after the enactment of the LMRDA but that it did not periodically renew that advice. Def. Int'l's Mem. Law, at 13. Ouch a manner of compliance — viz., a one "time notification (as opposed to periodic notifications) — was thought to be sufficient until the Fourth Circuit Court of Appeals held that section 415 required that unions provide periodic information to its members regarding the provisions of the LMRDA. See Thomas v. Grrand Lodge of Int'l Ass n of Machinists and Aerospace Workers, 201 F.3d 517, 521 (4th Cir. 2000) (holding that section 411 requires that union members be informed, soon after obtaining membership, about the provisions of the LMRDA). Following the Thomas decision, the United States Department of Labor ("DOL") published a one-page summary of the rights that are conferred to union members under the LMRDA. Accordingly, International published the DOL summary to all of its members sometime in 2001. Waldman Decl., Ex. R. Nevertheless, plaintiffs contend that triable Issues of fact exist regarding their section 415 claim because International has failed to state exactly when the summary was provided to its members — i.e., whether the summary was provided to plaintiffs before or after commencement of this action. However, the Court need not reach that issue because plaintiffs have failed to allege that either one of them ever requested notification from International of their rights under the LMRDA. see McGovern v. Local 456, Int'l Bhd. of Teamsters, 107 F. Supp.2d 311, 324 (S.D.N.Y. 2000) (granting summary judgment to union on plaintiffs section 415 claim because, inter alia, plaintiffs had never requested information about the LMRDA's provisions); Stelling v. Int'l Bhd. of Elec. Workers Local Union, 587 F.2d 1379, 1390-1391 (9th Cir. 1978) (affirming district court's dismissal of plaintiffs' section 415 claim because plaintiffs sought judicial relief without first requesting that the union comply with the LMRDA's disclosure requirements); Broomer v. Schultz, 239 F. Supp. 699, 705 (E.D.Pa. 1965), aff'd, 356 F.2d 984 (3d Cir. 1966). furthermore, plaintiffs merely allege in their Complaint that the full provisions of [the LMRDA] are not outlined in Defendant International's Constitution. Compl. ¶¶ 53, 97. Although the specific manner in which a Union may comply with section 415's disclosure requirements has not been fully developed by the courts, nothing within such section requires that a union provide the full provisions of the LMRDA in Its Constitution and By-Laws. Accordingly, summary judgment will be granted to defendants with regard to plaintiffs section 415 claim.
Significantly, the Thomas Co. urt did not determine the precise manner in which unions were to comply with section 415's disclosure requirements. It merely held that the union's one-time disclosure was insufficient to satisfy the statute and remanded the case to the district court to fashion an appropriate remedy, See Thomas, at 521.
In sum, the Court finds that (1) plaintiffs claims premised upon their allegations that defendants "blackballed" them and caused them to lose employment are preempted by the exclusive jurisdiction of the NLRB, (2) plaintiffs' other claims alleging violations of the LMRDA are not so preempted, (3) plaintiffs allegations are insufficient to state a claim under section 411(a)(1) of the LMRDA, (4) plaintiffs have failed to put forth sufficient evidence to raise any triable issues of fact regarding their claims based upon sections 411(a) (2), (4) and 415 of the LMRDA.
Accordingly, it is hereby ORDERED that defendants motions for summary judgment are granted, that plaintiffs Complaint is dismissed and that the Clerk of this Court shall close this case.