JOSEPH DENISCIA and ROBERT LAVIN v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5367-05T25367-05T2

JOSEPH DENISCIA and

ROBERT LAVIN,

Plaintiffs-Appellants,

vs.

INTERNATIONAL ASSOCIATION OF

FIREFIGHTERS, INTERNATIONAL

ASSOCIATION OF FIREFIGHTERS,

LOCAL 2040 and HAROLD A.

SCHAITBERGER,

Defendants-Respondents.

__________________________________

 

Argued: March 14, 2007 - Decided April 20, 2007

Before Judges Cuff and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2780-05.

Benjamin Benson argued the cause for appellants (Fox & Fox attorneys; Mr. Benson, of counsel and on the brief; David I. Fox, of counsel).

Vincent M. Giblin argued the cause for respondents (Kroll, Heineman & Giblin, attorneys; Mr. Giblin, of counsel; Kurt T. Rumsfeld (Woodley & McGillivary) of the D.C. bar, admitted pro hac vice, on the brief).

PER CURIAM

Plaintiffs Joseph DeNiscia and Robert Lavin, two suspended officers of defendant International Association of Fire Fighters (IAFF), appeal from the March 6, 2006 order dismissing their complaint against defendants IAFF, IAFF Local 2040, and Harold A. Schaitberger, the President of the IAFF. Judge Dupuis dismissed plaintiffs' complaint because plaintiffs failed to exhaust internal union remedies as provided in the IAFF Constitution and By-Laws. Plaintiffs contend that resort to internal union remedies would have been futile and the IAFF lacked jurisdiction to adjudicate their defamation claims against defendant Schaitberger. We affirm.

On August 6, 2003, the Executive Council of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) declared the New Jersey State Firemen's Mutual Benevolent Association (NJFMBA) and its affiliate local unions, such as NJFMBA Local 209, "rival organizations" pursuant to Section Two, Article XV of the IAFF Constitution and By-Laws. At the time, plaintiffs DeNiscia and Lavin served simultaneously as President and Secretary-Treasurer respectively of NJFMBA Local 209 and IAFF Local 2040.

On September 24, 2003, the IAFF Executive Board, at the request of the Professional Firefighters Association of New Jersey (PFANJ), declared the NJFMBA and its affiliate local unions as rivals under the IAFF Constitution and By-Laws. Plaintiffs allege that defendant IAFF did not conduct any investigation or hold meetings with the NJFMBA and failed to formally notify IAFF local unions, including IAFF Local 2040, or the NJFMBA about this declaration.

Plaintiff DeNiscia sent a letter dated December 3, 2003, to defendant Harold A. Schaitberger, General President of IAFF, stating that IAFF Local 2040 was affiliated with the NJFMBA and shared "common goals and interests" such that the two organizations might affiliate or merge in the future. DeNiscia expressed his respect for the NJFMBA as allies and opined that it was "the premier state organization in the state." He further inquired about the lack of formal notice and requested information about "what [the declaration of the NJFMBA as a rival organization] means and what needs to be done, if anything."

On December 16 and 17, 2004, the IAFF Executive Board held a meeting to discuss proposed measures for allowing NJFMBA members to disaffiliate from the NJFMBA in order to join the IAFF with temporary immunity from misconduct charges during the process of disaffiliation. The Executive Board specifically proposed to

amend the [NJ]FMBA's rival declaration to preclude enforcement of any misconduct charges based upon this rival status against any person who joins an IAFF affiliate during the moratorium period, so long as they are taking, or intend to take, actions to disaffiliate with the [NJ]FMBA during the moratorium period, and otherwise do not act in a manner adverse to the interest of the IAFF.

The proposal established that the moratorium period "would be effective on the date of its enactment by the IAFF Executive Board, and would apply for one year thereafter." However, the moratorium period "would not apply to any person who is already an IAFF member as of its enactment date, or to any misconduct charges already filed as of its enactment date." The proposal was adopted unanimously.

On February 28, 2005, plaintiff Lavin sent defendant Schaitberger a letter stating his membership with the NJFMBA, NJFMBA Local 209, and IAFF Local 2040. Lavin argued that Schaitberger and the Executive Board improperly declared the NJFMBA a "rival organization" without any discussion or investigation with any IAFF local union or NJFMBA members, despite requests for such action by Lavin and others. He further stated that even though Schaitberger did not respond to any correspondence, the IAFF Vice President had engaged in a telephone conversation with plaintiff DeNiscia during which the Vice President told DeNiscia that he and IAFF Local 2040 need not take further action.

Thereafter, Lavin stated that he was formally charging Schaitberger, as President of the IAFF, and the Executive Board "with dereliction of duty, obstruction of justice, and personal injury to members of Local #2040 and Local #209." Lavin grounded his allegations on the "atmosphere of discord and acrimony," waste of time, and neglect of real problems facing firefighters that have been created by Schaitberger and the Executive Board's actions. Specifically, Lavin alleged that Schaitberger and the Executive Board's act of placing politics ahead of legitimate concerns, such as rehabilitation efforts resulting from the September 11, 2001 attacks, constituted a dereliction of their duties. Also, Lavin stated that the declaration of the NJFMBA as a rival organization was an "illegal designation" with no basis and should be abolished.

On March 23, 2005, defendant Schaitberger suspended plaintiffs DeNiscia and Lavin from their positions as President and Secretary-Treasurer of IAFF Local 2040, respectively. He cited Article XI of the IAFF Constitution and By-Laws as authority for his actions. Schaitberger explained in the notice that plaintiffs' suspensions resulted from their failure to comply with the provisions of the IAFF Constitution and By-laws, the policies of the organization, and continual misconduct as defined in Article XV of the IAFF Constitution.

Schaitberger asserted in the notice that plaintiffs engaged in continual misconduct by continuing and encouraging membership in the NJFMBA, despite its rival status. Moreover, plaintiff Lavin filed the representation petition to replace IAFF Local 2040 with NJFMBA Local 209 in direct contravention to the IAFF Constitution, By-Laws, and policies. Schaitberger concluded with a statement that specific, written charges regarding his decision to terminate plaintiffs would be served on plaintiffs within thirty days as required by Article XI.

On March 30, 2005, plaintiff Lavin responded to defendant Schaitberger restating his criticism and allegation of charges against Schaitberger and the Executive Board from the February 28, 2005 letter. Lavin further accused Schaitberger of "abus[ing] [his] authority by imposing [his] will on the will of the members of the Elizabeth Fire Officers who have voted [Lavin] for the last ten years to be their Secretary-Treasurer" and for improperly suspending him, rather than bringing any charges.

At the time of plaintiffs' suspension, Lavin had served as Secretary-Treasurer of IAFF Local 2040 for ten years and had three months remaining on his term; DeNiscia had served as President of IAFF Local 2040 for twelve years and also had three months remaining on his term.

On April 11, 2005, defendant Schaitberger wrote a letter to all the members of IAFF Local 2040 describing the reasons for plaintiffs' suspension. He alleged that the NJFMBA had taken action that undermined the efforts and initiatives of IAFF, its local associations, including Local 2040 and PFANJ, and directly competed against the IAFF "as the bargaining agent for fire fighters in the state." He briefly discussed his correspondence with plaintiffs and cited plaintiff DeNiscia's December 2003 statement that the FMBA was "the premiere state organization in the state." Thereafter, IAFF and AFL-CIO "declared FMBA a 'rogue' union within the entire AFL-CIO," a decision with which Schaitberger agreed.

Schaitberger stated that despite this declaration, plaintiffs engaged in acts contrary to the interests of the IAFF. Specifically, plaintiff Lavin filed and signed a petition to replace IAFF Local 2040 with NJFMBA Local 209 as the exclusive bargaining agent, an act which amounted to "the equivalent of treason." Schaitberger further alleged that plaintiffs "personally began an active campaign against the IAFF and Local 2040 members that threatened the fundamental legal rights and obligations of our affiliate" and aligned their actions with those tactics of "union-busters."

Schaitberger continued his criticism, alleging that "while enjoying the fruits of IAFF members' dues they received as officers of an IAFF local, [plaintiffs] used their positions to actively work against, and in direct opposition to, the goals and mission of the IAFF by advocating for the decertification of Local 2040 . . . . [Plaintiffs] were caught in the act and now these men will pay the price for their traitorous acts against the IAFF."

Schaitberger expounded on his accusations by stating that "[t]he right to bargain and grieve as the exclusive representative of its membership is the life-blood of a union. There is not a bona fide union in this country that would not react in exactly the same manner as I did against one of its local officers who was seeking to interfere with this sacred obligation." Since plaintiffs allegedly used their positions of power in the IAFF to work against the organization, they were suspended. Lastly, Schaitberger warned that any member who engages in similar conduct as plaintiffs would be "putting [their] future at risk", undermining the IAFF, and would be removed from the Union County AFL-CIO Counsel and the New Jersey State AFL-CIO with no chance of re-admittance.

On August 2, 2005, plaintiffs filed a complaint against defendants IAFF, IAFF Local 2040 and Schaitberger for wrongful removal from their positions as union officers in violation of the IAFF's Constitution and By-Laws. Specifically, plaintiffs alleged breach of contract, breach of good faith and fair dealing, violation of their due process rights under the IAFF's Constitution and By-Laws and common law defamation.

In counts one and three, plaintiffs contend that defendants failed to comply with the procedural protections of the IAFF Constitution and By-Laws, as articulated in Articles XI, XIII, XVI and XVII, by failing to serve formal written charges on them and neglecting to hold an evidentiary hearing before suspending them.

In count two, plaintiffs allege that defendants breached an implied covenant of good faith and fair dealing by improperly declaring the NJFMBA and its affiliate local unions as a rival organization without further investigation or discussion; failing to serve plaintiffs with formal written charges; failing to afford them a hearing/trial prior to suspending them; and improperly charging plaintiffs despite the IAFF Executive Board's implementation of a one-year moratorium at its December 4, 2004 Board Meeting.

In count four, plaintiffs allege that defendant Schaitberger made defamatory, libelous statements about them in his dissemination of the April 11, 2005 letter in which he attributed plaintiffs' suspensions to "traitorous" acts that were "self-serving," "equivalent to treason," and similar to those of "union-busters."

On October 21, 2005, defendants filed a motion to dismiss plaintiffs' complaint for failure to exhaust internal remedies and for failure to state a claim upon which relief can be granted. After oral argument on February 3, 2006, Judge Dupuis entered an order dated March 6, 2006, granting defendants' motion to dismiss.

In the Statement of Reasons attached to the March 6, 2006 order, Judge Dupuis explained that plaintiffs failed to demonstrate the futility of exhaustion of internal union remedies and failed to show that their claims were "not of the type covered by union appeal provisions" as provided by the IAFF Constitution and By-Laws. The judge found that "[t]he general rule of exhaustion of remedies is qualified by exceptions" such as a showing that the internal union remedies are futile. Citing the internal grievance process and the failure to initiate that process, Judge Dupuis found that plaintiffs failed to show that defendant Schaitberger controlled the grievance and appeals process. The judge further found:

The Constitution of the IAFF provides procedures for bringing grievances against the General President, so that he is not involved in the adjudication of his claim. Moreover, if unhappy with the result the plaintiffs could have appealed to the International Convention. The plaintiffs do not demonstrate or even argue that the International Convention is in any way controlled or dominated by the defendants.

Judge Dupuis also determined that plaintiffs relied on inapplicable case law addressing the Labor Management Reporting and Disclosure Act, 29 U.S.C.A. 401 to 531. A subsequent motion for reconsideration was denied.

A motion to dismiss a complaint for failure to state a claim or cause of action, Rule 4:6-2(e), is granted sparingly. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). The motion judge and the reviewing court must search the complaint "'in depth and with liberality to ascertain whether'" the basis for a cause of action may be found. Ibid. (quoting Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). Although the standard of review is stringent, we conclude that Judge Dupuis properly granted the motion to dismiss plaintiffs' complaint.

The relationship between a union and its members is contractual in nature. N. Jersey Newspaper Guild v. Rakos, 110 N.J. Super. 77, 86 (App. Div.), certif. denied, 56 N.J. 478 (1970). "The 'contract' consists of the union's constitution and such rules, directives or regulations as may be adopted by the local union consistent therewith or pursuant thereto." Ibid. When an individual accepts membership in the union, the individual consents to be bound by its constitution and subject to its punishment for violation thereof. Thus, unions may punish members by fine or suspension pursuant to its constitution. Ibid.

Here, plaintiffs entered a contractual agreement with the IAFF and IAFF Local 2040, one of its affiliate unions, upon their acceptance of membership into the union. Plaintiffs agreed to be bound by the IAFF's Constitution and By-Laws and subject to its discipline, including suspension.

When an "agreement provides grievance procedures for the settlement of controversies . . . [a union member] must exhaust those procedures before resorting to the courts, in the absence of facts which would justify the failure to pursue such remedies." Jorgensen v. Pa. R.R. Co., 25 N.J. 541, 557 (1958). In other words, union members must exhaust their internal union remedies as mandated by the pertinent provisions of the union's constitution, rules, or policies prior to filing suit in court. Id. at 556.

Public policy affords national and international unions "extensive powers with concomitant responsibilities" because they perform important functions for the public good. Naylor v. Harkins, 11 N.J. 435, 445 (1953). Thus, "[i]f [unions] are to function efficiently they must have reasonable power to discipline their divisions and individual members, and courts have displayed wholesome reluctance to interfere with such internal quarrels, recognizing that they are ordinarily best dealt with in union tribunals." Ibid.

For example, in Chew v. Manhattan Laundries, 133 N.J. Eq. 326, 327-28 (Ch. 1943), modified, 134 N.J. Eq. 566 (E. & A. 1944), the complainant employees were suspended by their union employer for refusal to cooperate. The complaining employees were bound by the constitution of its union employer, which "provide[d] that any member against whom disciplinary action has been taken must exhaust his remedies under its constitution before resorting for relief to any other court or tribunal." Id. at 329. Nonetheless, the complaining employees filed their complaint in court, seeking reinstatement as members of the union from which they had been suspended. Id. at 327

The court refused to interfere with the internal matters of the union, a voluntary association, unless the complainant members first exhausted their remedies with the association. Id. at 329. It determined that the complaining union members were bound by the constitutional provisions of the association, which required members, who were subject to disciplinary action, to first exhaust their remedies under its constitution prior to seeking relief in a court. Ibid. The court then held:

This court, therefore, lacks jurisdiction to determine the controversy between the complaining members and the defendant union. [Complainant union members] did not attempt to exhaust their remedies within their own organization. There is nothing in the proofs which shows that the complainants were relieved of that requirement or that the remedy was inadequate or would have been futile, illusory or vain.

[Ibid. (citing Walsche v. Sherlock, 110 N.J. Eq. 223 (Ch. 1932)).]

Similarly, upon suspension, plaintiffs had internal union remedies to resolve their dispute with the parent union. Article XI of the IAFF Constitution and By-Laws governs the protocol for the suspension of IAFF members. It provides:

Within thirty (30) days following any suspension from office, the General President shall serve such officer with specific written charges and he/she shall have a hearing within thirty (30) days before a trial board consisting of three (3) members of the Executive Board to be selected and appointed by the General Secretary-Treasurer.

Article XVII, Section Two of the IAFF Constitution and By-Laws outlines the hearing procedure whenever charges are preferred by or against an officer. It provides:

Whenever charges are preferred by or against an International officer of the Association, the accused shall be tried within 120 days before the Trial Board of three members of the Executive Board to be selected and appointed in the following manner by the General President unless he/she is directly or indirectly involved in the conduct giving rise to the charges, in which case the General Treasurer/Secretary shall act as the appointing officer; provided, however, that in the event that both the General President and General Treasurer/Secretary are so involved in the charges, the remaining members of the Executive Board not so involved by majority vote shall designate one of its members not so involved as appointing officer. . . . The appointing officer shall submit the names of seven members of the Executive Board to the accused of which the accused shall reject four, the remaining three to constitute the International Trial Board.

Finally, Article XVIII, Section Seven of the IAFF Constitution and By-Laws bars litigation until all internal union remedies are exhausted. It provides:

No officer or member or subordinate union of this Association shall resort to any court of law or equity or other civil authority for the purpose of securing an opinion or decision in connection with any alleged grievance or wrong concerning any case arising within the Association or any of its subordinate unions until such party shall have first exhausted all remedies by appeal or otherwise provided in this Constitution and By-Laws not inconsistent with applicable law for the settlement and disposition of such alleged rights, grievances or wrongs.

The General President, the Executive Board and the International Convention are hereby empowered to refuse or defer consideration, or to refuse, defer or withhold decisions in any matter pending in any court of law as circumstances in their judgment may warrant and justify.

As members of the IAFF Local 2040, plaintiffs were bound by the provisions of the IAFF Constitution and By-Laws, including the exhaustion requirement. Since plaintiffs failed to exhaust their remedies, this court should refrain from adjudicating the controversy between plaintiffs, as union members, and defendants, as union officials, officers, and a voluntary association, unless plaintiffs have shown that an exception to the general rule of exhaustion of remedies applies.

To be sure, the general rule of exhaustion of remedies is subject to exceptions. Derling v. Di Ubaldi, 59 N.J. Super. 400, 405 (Ch. Div. 1960). If a plaintiff can show any of the following, he is relieved from exhausting internal union remedies: 1) the internal union remedies are futile; 2) the remedies are "not of the type covered by union appeal provisions"; 3) the matter is "purely a question of law"; 4) "the association tribunal lacks jurisdiction"; 5) "the proceedings are improper"; or 6) "the union itself has unfairly handicapped plaintiff in the taking of his appeal". Ibid.

The crux of plaintiffs' futility argument rests on their assumption that defendants Schaitberger, the General Treasurer-Secretary, and the Executive Board completely controlled the review and appeals process, such that exhaustion of the internal union remedies would have been futile. Specifically, plaintiffs contend that any charges filed against such defendants "would have been against the majority, if not all, of these individuals[.] [I]t is illogical to think that Plaintiffs' charges would have been taken seriously, or that Plaintiffs would have received fair and impartial consideration of their charges. This point is obvious and clear."

Plaintiffs further contend that defendants as well as the Trial Board members would be biased against them. Yet, plaintiffs offer no legal support for their assertions. Moreover, case law suggests the opposite result.

In Derling, supra, the defendant union moved to dismiss the plaintiff union members' complaint on the ground that the plaintiffs failed to exhaust their internal union remedies. 59 N.J. Super. at 402. The court held that the "[p]laintiffs have a remedy within the [union] itself for redress of their grievances based on the alleged . . . misconduct of defendants, which grievances are properly within the [union] appellate jurisdiction. Plaintiffs offer no evidence of [union] insensitivity to complaints of [union misconduct]." Id. at 407. The court further found that plaintiffs failed to offer "persuasive evidence that an appeal will be futile, illusory or vain." Ibid.

Here, plaintiffs similarly should have sought a remedy within the IAFF for redress of their grievances before resorting to the courts. Like the plaintiffs in Derling, supra, 59 N.J. Super. at 400, plaintiffs here offer no evidence of defendants' insensitivity to their complaints of defendants' improper conduct. Plaintiffs offer no evidence that they even began the grievance process. Rather, plaintiffs merely sent defendant Schaitberger two letters declaring their disagreement with defendant IAFF's declaration of the NJFMBA as a rival organization and stated their intent to formally charge defendant Schaitberger "with dereliction of duty, obstruction of justice, and personal injury to members of Local #2040 and Local #209." However, plaintiffs failed to inform the Executive Board or anyone other than defendant Schaitberger about such charges.

Article XV, Section Two, identifies the process for revoking the declaration of a rival organization, providing:

Upon receipt of a request by the charging party involved or by an affiliate of the Association to remove the declaration of rival organization from an outside organization, the Executive Board must consult with all parties involved and may vote to revoke the designation of rival organization by two-thirds (2/3) majority vote . . . .

Plaintiffs failed to file a formal complaint with the Executive Board. Moreover, plaintiffs' argument that Lavin's letters served as adequate formal commencement of the revocation of a rival organization process is tenuous at best. Lavin's correspondence with defendant Schaitberger did not commence the grievance process. As such, plaintiffs' claims of futility are without merit because plaintiffs never even commenced the grievance process.

Most unions are internally-governed organizations that establish their own constitution and procedures for settling internal disputes and disciplinary violations. Jorgensen, supra, 25 N.J. at 557. Necessarily, union members must serve as the decision-makers who preside over the adjudicatory and appeal processes and enforce disciplinary action against fellow union members for violations of the association's constitution and rules. We are not free to disregard a carefully crafted system to resolve internal organization disputes.

Generally, when union members challenge the conduct of another member or contest imposed discipline, they must exhaust their remedies "in the tribunal of the organization before [they] can invoke the aid of the civil courts[.]" Cameron v. Int'l Alliance of Theatrical Stage Employees, 118 N.J. Eq. 11, 19 (E. & A. 1935).

We also determine that plaintiffs' defamation claims are also subject to submission to and review by the internal union dispute resolution procedure. Indeed, Article XV, Section One of the IAFF Constitution and By-Laws includes libel or slander of any officer as misconduct and such allegations of misconduct are subject to submission to internal union dispute resolution prior to resort to any court.

Local Union No. 14 of the United Ass'n of Journeymen and Apprentices v. United Ass'n of Journeymen and Apprentices is illustrative and on point. 61 N.J. Super 228, 237 (App. Div.), certif. denied, 33 N.J. 113 (1960). In Local Union, the plaintiff contended that the court improperly dismissed the complaint for failure to exhaust its remedies within the defendant parent organization and had no right to seek the aid of the court. Id. at 231. The plaintiff, a local union, was subject to the provisions of the defendant's constitution and by-laws, which included a provision vesting "full power and authority to settle all disputes and grievances of any kind in or between local unions" in the defendant. Id. at 232. If a member was suspended or expelled, the constitution provided for appellate review within the union. Ibid.

The local union was subsequently suspended and filed suit in court. Id. at 237-38. It argued that it raised a "question of law," thereby obviating the need to exhaust its internal remedies, as mandated by the constitution and by-laws of the defendant. Id. at 238. This court disagreed. We found that the "plaintiff had agreed to the [defendant's] constitutional provision that it was obliged to exhaust the internal remedies available to it before resorting to a court of law." Ibid. Moreover, we found that the "plaintiff [was] prevented by the very terms of its contractual relationship with [the defendant] from presently seeking court aid to resolve what it characterize[d] as a 'question of law.'" Ibid.

Here, plaintiffs, as members and officials of IAFF Local 2040, similarly obligated themselves to exhaust the internal remedies available before resorting to a court of law on issues of misconduct such as libel and slander. Like the plaintiff in Local Union, plaintiffs here should not be permitted to circumvent their obligation to exhaust their internal remedies by characterizing their defamation claim against defendant Schaitberger as a "question of law."

Accordingly, the March 6, 2006 order dismissing plaintiffs' complaint is affirmed.

Affirmed.

 

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April 20, 2007