Opinion
98 Civ. 4364 (TPG)
December 15, 2003
OPINION
Plaintiff Salvester Zarzana brings this action against his union, the United Brotherhood of Carpenters and Joiners of America ("UBC"), and two of its officers. All but one of plaintiffs claims have been dismissed as a result of previous motions. Plaintiffs remaining claim is for alleged violation of his right to free speech and assembly under § 101(a)(2) of Title I of the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(2).
Defendants have moved to dismiss the remaining claim, or in the alternative, for summary judgment. The motion for summary judgment is granted.
Facts
This lawsuit arises from plaintiffs termination in 1998 as President and Business Manager of Local 926 of the UBC. Defendant Douglass McCarron was the General President of the UBC. Defendant James Slebiska was the Acting Supervisor of the District Council of New York City and Vicinity.On June 25, 1996 the UBC placed the District Council under a trusteeship and proposed a restructuring plan for the District Council and its member locals. At that time plaintiff was the elected Business Manager of Local 902. Plaintiff was a vocal opponent of the restructuring plan, which consolidated several of the local unions. Plaintiff was a party to a lawsuit which challenged the validity of the restructuring plan, Local Unions 20. et al. v. Union Brotherhood of Carpenters and Joiners of America, et al. (97 Civ. 5538). Plaintiff alleges, that during the pendency of the lawsuit, he was threatened with disciplinary action because of his opposition to the restructuring plan.
Despite ongoing litigation, the restructuring plan was implemented. The UBC removed all the elected officers of the District Council and merged several of the local unions. Interim officers for the new local unions were appointed. In January of 1998, as a result of the restructuring plan, Local Unions 902 and 296 were dissolved and a new local union, Local Union 926, was chartered for the borough of Brooklyn. In January of 1998 Slebiska appointed plaintiff as President and Business Manager of the new Local 926.
On June 3, 1998 McCarron and Slebiska terminated plaintiff from his offices at Local 926. Plaintiffs termination was based on alleged "gross insubordination" and submitting a suspended driver's license to the union, which had provided him with a vehicle.
In his complaint, plaintiff alleges that the termination was based on political motives and was in retaliation against him because of his opposition to the restructuring plan and because of his enforcement of certain job referral rules.
Subsequent to his termination, plaintiff remained as member of Local 926. In September of 1999, plaintiff campaigned and was elected to the position of President of Local 926 for a three-year term. Subsequently plaintiff was reelected in September of 2002 as President of Local 926 for a three-year term to expire in 2005. He is currently in that office.
Also, in the fall of 1999, plaintiff campaigned for the position of the Executive Secretary Treasurer of the District Council, but lost that election in December of 1999.
Discussion
Section 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2), provides in relevant part:
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 . . .
Section 101(a)(2) is part of Title I of the Act. Title I is known as the "Bill of Rights of Members of Labor Organizations."
It is unlawful for a union "to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled" under the Act. LMRDA Title VI, § 609, 29 U.S.C. § 529.
In Finnegan v. Leu, 456 U.S. 431 (1982), union business agents brought an action challenging their dismissal from office by the president of the union whose election they had opposed. The business agents claimed that their dismissal violated their rights to political participation and freedom of expression under various sections of Title I of the LMRDA, including § 101(a)(2), and that further claimed they had been improperly disciplined in violation of § 609. The Supreme Court affirmed the dismissal of the action, explaining that it "is readily apparent, both from language of these provisions and from the legislative history of Title I, that it was rank-and-file union members — not union officers or employees, as such — whom Congress sought to protect. 456 U.S. at 436-7. The Court held that Title I of the LMRDA did "not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own." 456 U.S. at 439. As to § 609, the Court stated that the "removal from appointive union employment is not within the scope of those union sanctions explicitly prohibited by § 609." 456 U.S. at 439.
The Supreme Court suggested, however, that there might be a qualification to the above holdings where the dismissal from union office was "part of a purposeful and deliberate attempt . . . to suppress dissent within the union." 456 U.S. at 440-41. The Court stated that:
We need not decide whether the retaliatory discharge of a union member from union office — even though not "discipline" prohibited under § 609 — might ever give rise to a cause of action under § 102. For whatever limits Title I places on a union's authority to utilize dismissal from union office as `part of a purposeful and deliberate-attempt . . . to suppress dissent within the union,' cf. Schonfeld v. Penza, 477 F.2d 899, 904 (CA2 1973), it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own . . . the Act's overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections.456 U.S. at 440-41.
In Schonfeld v. Penza, 477 F.2d 899 (2d Cir. 1973), the Second Circuit affirmed a preliminary injunction restraining a union from removing the Secretary-Treasurer from office and from declaring him ineligible for five years. In dealing with the complex issues of that case (the details of which need not be discussed here), the court stated that court intervention was justified where union action abridging Title I "can be fairly said, as a result of established union history or articulated policy, to be part of a purposeful and deliberate attempt by union officials to suppress dissent within the union." Id. at 904.
In Cotter v. Owens, 753 F.2d 223 (2d Cir. 1985), the Second Circuit engaged in a thorough analysis of both Finnegan and Schonfeld. Cotter was a suit under §§ 101(a)(2) and (a)(4). The latter provision deals with the right to go to court and similar subjects. Cotter was employed by Consolidated Edison and worked at times at the Indian Point Nuclear Power Station. He was an active member of a local union. The Business Manager of the union formed a Nuclear Safety Committee and appointed Cotter as a member. Cotter became something of a whistleblower on the subject of safety. He helped found a dissident group within the union. The union leadership ousted him from the Nuclear Safety Committee. Cotter sued to overturn his removal from the committee. The District Court held, among other things, that his claim was barred by Finnegan. The Court of Appeals reversed this ruling and remanded for further findings. The Court referred the "Schonfeld exception to Finnegan," and stated:
Certainly we can conceive of rare situations where the retaliatory firing of policymakers might be part of a series of oppressive acts by the union leadership that directly threatened the freedom of members to speak out. In that unusual circumstance, which would require "clear and convincing proof," reinstatement might be available under the LMRDA. . . .753 F.2d at 229.
To recapitulate, Finnegan holds that a union official's termination of staff members because of incompatible views of management and policy does not violate LMRDA § 101(a)(2). Finnegan. Schonfeld and Cotter recognize a narrow exception to this rule where such termination is a form of intimidation and oppression of the membership, threatening the freedom of speech of the members.
The main holding in Finnegan governs the present case and the exception has no application. We will take plaintiffs allegations as true, that he was ultimately removed because he had opposed and still opposed the District Council and other UBC leaders as to the restructuring plan and on other issues. Yet his removal did not violate his right to free speech and assembly under Title I of the LMRDA. Nor is there any evidence that plaintiffs removal threatened to impair such rights with respect to the union membership as a whole.
The circumstances of plaintiffs initial appointment to the presidency of Local 926 in January of 1998 hardly comports with an effort to suppress dissent by subverting union democracy. Plaintiff was appointed despite his known vigorous opposition to the restructuring plan, including his participation in a lawsuit against the UBC. When terminated, plaintiff was not expelled or prevented from political participation in the union. Indeed, plaintiff continued to speak out. He ran and campaigned for two union positions in 1999. Although he lost his campaign for a position on the District Council, he was reelected to the office of President of Local 926 in September of 1999, and again in 2002.
Conclusion
Plaintiffs termination as a business agent of the UBC appointed by the District Council did not violate LMRDA § 101(a)(2). This is demonstrated beyond any triable issue of fact. Defendants' motion for summary judgment dismissing the remaining claim in this case is granted.