Doro v. Sheet Metal Workers, No. 06-0355 (2d Cir. 2007)
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06-0355-cv, 06-0504-cv Doro v. Sheet Metal Workers 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2006 4 5 (Argued February 5, 2007 Decided August 17, 2007) Docket Nos. 06-0355-cv(L), 06-0504-cv(XAP) 6 7 --------------------------------------------LOUIS DORO, 8 Plaintiff-Appellant-Cross-Appellee, 9 10 11 12 v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, Defendant-Appellee-Cross-Appellant, 13 14 15 16 LOCAL UNION 38, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION AND GINO COLUMBO, PRESIDENT OF LOCAL UNION NO. 38, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, 17 18 Defendants. --------------------------------------------- 19 B e f o r e: MESKILL, NEWMAN and SACK, Circuit Judges. 20 21 Appeal from a judgment of the United States District 22 Court for the Southern District of New York, Brieant, J., entered 23 on December 27, 2005, granting summary judgment for Defendant- 24 Appellee-Cross-Appellant Sheet Metal Workers International 25 Association and denying Plaintiff-Appellant-Cross-Appellee Louis 26 Doro s motion for partial summary judgment on his claim under the 27 Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411. 1 Affirmed; cross-appeal dismissed. 2 3 4 5 CHRISTOPHER WATKINS, Chester, NY (Stephen Bergstein, Bergstein & Ullrich, Chester, NY, of counsel), for Appellant. 6 7 JEFFREY S. DUBIN, Huntington, NY, for Appellee. 8 MESKILL, Circuit Judge: 9 This case asks us to decide whether the Sheet Metal 10 Workers International Association (the International) may be 11 held liable under the Labor-Management Reporting and Disclosure 12 Act (LMRDA), 29 U.S.C. § 411, because in its quasi-appellate 13 role, the International ratified a decision of the local union 14 that allegedly violated member Louis Doro s (Doro) due process 15 rights. 16 Southern District of New York, Brieant, J., properly granted 17 summary judgment for the International and dismissed the claim. 18 We hold that the United States District Court for the Affirmed; cross-appeal dismissed. 19 BACKGROUND 20 Doro is a sheet metal worker who since 1989 has been a 21 member in good standing of the International and its affiliate, 22 Local Union 38 (Local 38). 23 a Local 38 contractor, P & P Sheet Metal, performing pipe 24 sketching and estimating jobs related to piping and electrical 25 work. 26 Colombo, Sr. (Nicholas Colombo), filed charges against Doro with Doro occasionally worked overtime for On October 22, 1998, fellow Local 38 member Nicholas -2- 1 the local union. 2 misconduct: 3 4 5 6 7 8 9 10 The charging document alleged the following -Member working for P & P Sheet Metal (a [Local] 38 contractor) accepting substandard wages and benefits for work performed after 40 hours with full knowledge that benefits were not being paid into [Local] 38 and the International Pension. -Member failing to obtain an overtime permit. -Member receiving two benefits (vacation and dues checkoff in their [sic] pay[)]. 11 On the same day, Nicholas Colombo filed charges against another 12 Local 38 member, Anthony Pelella (Pelella). 13 charging Pelella and Doro are identical, except for the name and 14 address of the charged party. 15 The documents Doro, in his April 8, 2005 deposition, testified that 16 he was one of about 13 members whom Local 38 charged for work 17 performed for P & P Sheet Metal, allegedly in violation of the 18 union constitution, and that he understood the substance of the 19 charges against him. 20 Metal s owner, called a meeting of all the charged members and 21 said not to worry about the charges, and that the issue of any 22 fines imposed would be dealt with after the union trial. 23 According to Doro, Roy Seacor, P & P Sheet On November 4, 1998, less than two weeks after mailing 24 the charges, Local 38 s Executive Board Trial Committee tried 25 both Doro and Pelella separately. 26 no transcript of the proceedings against Doro and Pelella. 27 Nicholas Colombo s brother Gino Colombo served as Chairman of the 28 Trial Committee. The record before us contains Doro did not object to the composition of the -3- 1 Trial Committee. 2 responded that he was sorry if [he] did anything wrong. 3 was not represented by counsel at the hearing or, apparently, at 4 any other time during the union proceedings against him. 5 record provides no details of Pelella s trial, or any indication 6 whether Pelella admitted the factual basis for the charges 7 against him. 8 9 Nicholas Colombo read the charges, and Doro Doro The The Trial Committee concluded that Doro and Pelella each violated three sections of the union constitution and fined 10 Doro $11,096 and Pelella $4,418. 11 Colombo read the trial minutes of both trials to Local 38 s 12 membership. 13 the fines.1 14 On November 18, 1998, Gino The membership ratified the findings of guilt and Doro appealed to Arthur Moore, the General President of 15 the International, who affirmed Local 38 s decision on January 16 22, 1999. 17 Council, which on July 7, 1999, upheld the decision below, 18 although it modified the penalty to remove any possibility of 19 expulsion. 20 Grievances and Appeals Committee on September 2, 1999. 21 Doro further appealed to the International s Executive Doro appealed that decision to the International s Doro s appeal was pending before the Grievances and 1 Doro contends that the minutes referred to documentary evidence never shown to [him] at trial and which he never had an opportunity to confront and rebut, but he does not identify that evidence or its relevance to his due process claim against the International. -4- 1 Appeals Committee for almost five years, during which time Local 2 38 filed suit in federal court under the LMRDA against Pelella to 3 collect Pelella s unpaid fine. 4 Pelella, 350 F.3d 73, 78 (2d Cir. 2003). 5 counterclaim for violation of his due process rights and breach 6 of contract. 7 jury found Local 38 liable for violating Pelella s due process 8 rights. 9 granting Pelella fees and costs, we noted that Local 38 conceded Id. Id. at 79. See Local Union No. 38 v. Pelella asserted a On November 27, 2001, after a two-day trial, a In affirming the order of the district court 10 that the charges and procedures to which Local 38 subjected 11 Pelella reflect, at the very least, negligent compliance with the 12 due process rights guaranteed by the LMRDA. 13 Id. at 91. Doro finally appeared before the Grievances and Appeals 14 Committee on August 20, 2004. In a statement that Doro claims he 15 read before the Convention s Grievance and Appeals Committee (the 16 Committee), he argued that the written charges prepared by 17 Nicholas Colombo did not allege when or where the infractions 18 were committed, the number of hours in question, nor even the 19 work that was covered by the Union contract. 2 20 Pelella decision as case law that compelled the Committee to 21 reverse Local 38 s decision against him. 2 Doro cited the We assume for purposes of the instant appeal that Doro s typed script for the hearing, which is reproduced in the record in lieu of a transcript with the annotation Read on August 20, 2004 before Grievance & Appeals Committee, represents an accurate account of Doro s presentation to the Committee. Neither party appears to dispute this. -5- 1 The Committee recommended that the General Executive s 2 decision be upheld. 3 Committee stated that Local 38 had observed Doro s due process 4 rights, including serving him with charges stating with 5 sufficient details the conduct of which he was accused and giving 6 him a full opportunity to defend against those charges. 7 giving its reasons for recommending that the Convention uphold 8 the decision of the Executive Council, the Committee stated that 9 Doro, both in his statements to the Committee and in his prior 10 statements during the appeal process, had acknowledged violating 11 the SMWIA Constitution and had also acknowledged in his 12 statements before the Committee that he understood the nature of 13 the charges against him. 14 reference to the Pelella decision. 15 2004, the General Secretary-Treasurer of the International 16 informed Doro that the General Convention had approved the 17 Committee s recommendation and voted to reject his appeal. 18 In recounting the prior proceedings, the In The Committee s recommendation made no In a letter dated August 27, On October 18, 2004, Doro filed suit in federal court 19 against Local 38, the International, and Gino Colombo for 20 willfully violating his due process rights under the LMRDA. 21 On July 6, 2005, Doro settled with Local 38 and Gino Colombo. 22 The remaining defendant, the International, moved for summary 23 judgment on the ground that Doro, because he sits on the Board of 24 Directors of and owns a 24 percent stake in CAQS, Inc., which -6- 1 employs Local 38 members, is an interested employer who is 2 barred from bringing this suit pursuant to 29 U.S.C. § 411(a)(4). 3 Doro moved for partial summary judgment on the issue of 4 liability, asserting that as a matter of law the International 5 knowingly had ratified a facially illegal decision by Local 38. 6 The district court denied both motions, but entered summary 7 judgment sua sponte for the International on the ground that Doro 8 made no showing that the International acted in bad faith in 9 performing its appellate functions. 10 11 This appeal followed. DISCUSSION Standard of Review 12 We review de novo a district court s grant of summary 13 judgment, construing the evidence in the light most favorable to 14 the nonmoving party and drawing all inferences and resolving all 15 ambiguities in favor of the nonmoving party. 16 v. Société Générale, 476 F.3d 90, 95 (2d Cir. 2007). 17 judgment is appropriate if the pleadings, depositions, answers 18 to interrogatories, and admissions on file, together with the 19 affidavits, if any, show that there is no genuine issue as to any 20 material fact and that the moving party is entitled to a judgment 21 as a matter of law. 22 The Merits See Aon Fin. Prods. Summary Fed. R. Civ. P. 56(c). 23 Doro contends that the district court erred in denying 24 his motion for summary judgment on the issue of liability and in -7- 1 granting summary judgment for the International sua sponte. 2 Doro s LMRDA claim relies on a number of facts that, even if not 3 formally disputed in the parties Local Civil Rule 56.1 4 statements, are nonetheless unsettled, particularly the specific 5 factual background of Doro s and Pelella s union trials. 6 However, Doro has not identified for either the district court or 7 this Court any genuine issue of material fact that would raise a 8 jury question on the issue we deem dispositive. 9 P. 56(c). 10 See Fed. R. Civ. Doro contends that the International knowingly ratified 11 Local 38 s alleged violation of the due process rights afforded 12 him by the LMRDA.3 13 charges Local 38 brought against him are evident from the face of 14 the document, and that he informed the International s Grievance 15 and Appeals Committee of the Pelella decision. 16 contends that it did not act in bad faith in affirming the 17 decision of Local 38, and that Doro may not bring suit under the He argues that the insufficiency of the The International 3 The LMRDA s [s]afeguards against improper disciplinary action provide that No member of any labor organization may be 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; (C) afforded a full and fair hearing. 29 U.S.C. § 411(a)(5). -8- 1 LMRDA because he is an interested employer.4 2 whether Doro is an interested employer pursuant to 29 U.S.C. 3 § 411(a)(4), because we hold that as a matter of law Doro has 4 failed to adduce any evidence that the International ratified any 5 unlawful action of Local 38. 6 We need not decide Congress enacted the LMRDA to correct widespread abuses 7 of power and corruption by union officials, including the abuse 8 of union disciplinary powers. 9 LMRDA contains a Bill of Rights for union members, including 10 the right of a member to bring an action against his union and 11 its leaders in court or before an administrative agency for 12 violations of the LMRDA s substantive provisions. 13 right-to-sue provision was designed to give union members the 14 tools to insure the fairness of their union as a representative 15 institution. Pelella, 350 F.3d at 83. Id. The This Pelella, 350 F.3d at 83. 16 We have recognized that this right to sue may permit 17 a union member to recover damages from an international union if 18 the international ratifies the illegal acts of a local union. 19 Phelan v. Local 305, 973 F.2d 1050, 1062 (2d Cir. 1992). 4 Common Although the International has filed a cross-appeal, it does not seek to modify the district court s judgment. Thus, no cross-appeal was necessary to bring these contentions before us if they can be considered otherwise. They would simply be alternative grounds on which the judgment below could be supported. United States v. Raines, 362 U.S. 17, 27 n.7 (1960). We therefore dismiss the International s cross-appeal and consider the arguments made in support thereof as arguments for affirming the district court s judgment. -9- 1 law agency principles govern an international union s liability 2 for the actions of its local chapters or their officers. 3 However, an international union s liability for violations of a 4 member s rights may not be coextensive with that of the local 5 union. 6 under the LMRDA if the local union violated one of his enumerated 7 rights, he may prevail against the international only if the 8 international ratified the local union s violation. 9 House Wreckers Union Local 95, 817 F.2d 967, 973 (2d Cir. 1987). 10 In the pending case, the Committee s recommendation to Id. While a union member may prevail against a local union Rodonich v. 11 uphold the Executive Council s affirmance of discipline for 12 Doro s violation was based on his admission of his violation and 13 his further admission that he understood the charges against him. 14 It remains an open question whether a local union can violate a 15 member s due process rights under the LMRDA when the member does 16 not contemporaneously challenge the deficiencies of the charging 17 document and admits, during the intraunion appeal process, the 18 factual basis for the charges and his understanding of the nature 19 of the charges. 20 Referees, 564 F.Supp. 250, 256 (E.D. Pa. 1983) ( [I]ndependent 21 knowledge of the general nature of the accusations is irrelevant 22 to the requirement that written specific charges be provided. ), 23 and Gleason v. Chain Serv. Rest., 300 F.Supp. 1241, 1253 24 (S.D.N.Y. 1969) ( An ex post facto showing that the accused had Compare Strom v. Nat l Ass n of Basketball -10- 1 knowledge of the events surrounding the alleged offenses cannot 2 cure the lack of adequate written notice made mandatory by the 3 statute. ), aff d, 422 F.2d 342 (2d Cir. 1970), with Stodghill v. 4 Serv. Employees Int l Union, 13 F.Supp.2d 960, 965-66 (E.D. Mo. 5 1998) (holding that the charges were sufficiently specific when 6 the union member, by his own admission, was prepared to defend 7 himself against the charges ), aff d in part and rev d in part on 8 other grounds, 192 F.3d 1159 (8th Cir. 1999), and Vars v. Int l 9 Bhd. of Boilermakers, 215 F.Supp. 943, 948 (D.Conn. 1963) 10 (finding no due process violation where member was very 11 familiar with factual basis for the charges). 12 decide this question today. 13 that, with the law unsettled as to whether a member s admissions 14 of both his violations and his understanding of charges insulates 15 a local from liability for imposing discipline on arguably 16 inadequately specific charges, an intraunion appellate body does 17 not ratify the arguable due process violation of the local by 18 affirming the member s discipline on the basis of his admissions. 19 CONCLUSION 20 We need not It suffices for our decision to hold We conclude that the district court properly granted 21 summary judgment for the International because Doro has failed as 22 a matter of law to demonstrate that the International violated 23 the LMRDA in relying on his admissions in affirming Local 38 s 24 decision to discipline him. Therefore the judgment of the -11- 1 district court is affirmed, and the International s cross-appeal 2 is dismissed. -12-
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