The opinion of the court was delivered by: SHAPIRO
Plaintiff, Earl Strom, a basketball referee and member of defendant, National Association of Basketball Referees ("NABR" or the "Association"), has filed a complaint alleging that certain discipline imposed by the Association was in violation of sections 101(a)(2) and 101(a)(5) of the Labor-Management Reporting and Disclosure Act ("LMRDA" or the "Act"), 29 U.S.C. § 411(a)(2), (a)(5). Before the court is plaintiff's motion for summary judgment which shall be granted.
On November 28, 1979, Strom was refereeing a basketball game in Boston, Massachusetts. His refereeing partner for that game was Richard Bavetta. During half-time of that basketball game, while in the officials' dressing room, Strom and Bavetta had an altercation. This altercation stemmed from some disagreements between Strom and Bavetta concerning the refereeing in the first half of the game. Bavetta alleged that Strom grabbed him about the neck and attempted to choke him. Strom denied trying to choke Bavetta. He stated that he simply grabbed Bavetta's jacket. Minutes of Hearing, attached to defendant's answers to plaintiff's interrogatories ("Minutes"), Docket No. 14; Article in Referee Magazine, attached to defendant's response to plaintiff's second request for production of documents, Docket No. 21. The Strom-Bavetta incident was reported to the Commissioner of the National Basketball Association ("NBA"). In December, 1979, the Commissioner fined Strom $2,500 because of the incident. See, NABR decision, Appendix A to this Memorandum.
In March, 1981, an interview with Strom appeared in Referee Magazine. In that interview Strom discussed the Bavetta incident among many other topics.
On April 10, 1981, shortly after these articles appeared, Bavetta sent Richard G. Phillips, Esquire, General Counsel for the NABR, the letter attached to this Memorandum as Appendix B in which he requested that a grievance committee investigate the matter and prosecute Strom.
Shortly after the filing of this "charge", Darrell Garretson, then Executive Director of the NABR, informed Strom by telephone that Bavetta had filed a grievance (Garretson Affidavit, para. 4). Mr. Garretson also discussed the grievance with Strom by telephone in June, 1981 and informed Strom that the NABR would be conducting grievance proceedings against him at the NABR's annual meeting to be held in September, 1981. Id.2 No copy of the grievance was mailed, sent or given to Strom at that time.
The next contact between Strom and the NABR concerning the Bavetta charge occurred on September 21, 1981. Strom was informed that a hearing would be held on the Bavetta complaint three days later, on September 24, 1981. Edward Rush, an Executive Board member of the NABR, then handed Strom a copy of Bavetta's letter to Phillips.
Answer to Interrogatory No. 8, Docket No. 14. Thus, the charge was given to Strom over five months after it was filed.
The hearing was held on September 24, 1981. Minutes were kept of the grievance hearing by the NABR. Phillips asked Strom if he was going to have counsel represent him at the hearing and advised him that if he needed additional time to secure counsel the Executive Board of the NABR would accommodate him. Strom replied that he did not need an attorney and asked to proceed. Phillips asked Strom if he was prepared and if he had sufficient notice of the hearing and Strom replied that he had known about the complaint for some time and that earlier in the week he had been provided with a copy of the complaint. Strom was also advised by Phillips that he had a right to cross-examine any witness and had a right to call witnesses in support of his position. Phillips Affidavit, paras. 3, 4, 5; Minutes.
At the hearing, Bavetta described the incident in Boston on November 29, 1979 and referred to the article in Referee Magazine which Bavetta claimed was critical of him and of the NABR's handling of the Strom-Bavetta incident. Strom testified and denied having attempted to choke Bavetta as Bavetta claimed. Strom called one witness who testified to what he had heard about the incident at Bavetta's wedding. See, Minutes.
At the conclusion of the meeting, the Executive Board of the NABR met, found Strom guilty and imposed a three-year period of probation. The exact terms of the probation were to be determined at a later time. Strom did not state either during the hearing or immediately thereafter that he had not received sufficient notice of the charges against him. Phillips Affidavit, para. 4. On March 3, 1982, the NABR issued a decision on the charges filed against Strom by Bavetta and imposed a three-year period of probation with certain stated terms and conditions.
Section 101(a)(5) of the Act provides:
29 U.S.C. § 411(a)(5). The requirement of "written specific charges" means charges "specific enough to inform the accused member of the offense that he has allegedly committed." Int'l. Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 245, 28 L. Ed. 2d 10, 91 S. Ct. 609 (1971).
"The notice must be so drafted as to inform a member with reasonable particularity of the details of the charges." Berg v. Watson, 417 F. Supp. 806 (S.D.N.Y. 1976), quoting, Jacques v. Local 1418, Int'l. Longshoremen's Ass'n., 246 F. Supp. 857 (E.D.La. 1965). See also, Reilly v. Sheet Metal Workers International Ass'n., 488 F. Supp. 1121 (S.D.N.Y. 1980); Gleason v. Chain Service, 300 F. Supp. 1241 (S.D.N.Y. 1969), aff'd, 422 F.2d 342 (2d Cir. 1970); accord, Semancik v. United Mine Workers, 466 F.2d 144 (3d Cir. 1972). Strom avers that the NABR failed to comply with this statutory requirement. For the reasons set forth below, the court concludes that as a matter of law, Mr. Strom was not afforded written specific notice of the charges against him prior to the imposition of discipline by the Association.
The Union claims that its discipline of Strom was pursuant to its By-Laws, sections 13.3.1, 13.3.3 and 13.3.4.
The only written notice of the charges received by Strom was a copy of the April 10, 1981 letter from Bavetta to Phillips. This letter stated that Bavetta was submitting a grievance in accordance with the Contract/Constitution -- Article IX, Sections 3 and 4, that he was enclosing two articles he felt violated those provisions, and that
In addition to the above, Earl Strom's conduct has caused severe emotional strain on me personally, my family and friends. I also feel that Mr. Strom's actions have been detrimental to the best interests of basketball, to the National Association of Basketball Referees and to me, a member of the association.
Article IX, §§ 3 and 4, referred to in Bavetta's letter, are provisions of the collective bargaining agreement between the NBA and the NABR stating that every referee must abide by all requirements of the NBA regarding conduct of its referees, that the Commissioner may impose fines for violations of such requirements and that any fine imposed is final and binding. There is absolutely no reference in either the letter or the contract sections cited therein to any provisions of the Union's Constitution or By-Laws.
The notice first contains a reference to two magazine articles which were sent to the Association but not provided to Strom together with the charges and a reference to the finality provisions of the NABR contract. Next the notice simply refers to Strom's "conduct" as having caused an emotional strain on Bavetta and being detrimental to the interests of basketball. Strom received this notice almost two years after the alleged assault and six months after the interviews; yet there is no further explanation of what conduct is being charged -- the assault, the interviews, both, or something else.
The letter could be interpreted as giving notice of any or all of the following charges: that the interviews violated the finality provisions of the NBA agreements; that either the articles or some other unspecified conduct caused an emotional strain on Bavetta; that either the articles or some other unspecified conduct was detrimental to the game of basketball and to the Association. There is no reference in the letter to a "pattern of conduct aimed at the destruction of Richard Bavetta's effectiveness as a referee," the infraction that the Board of Directors ultimately found or any explanation of exactly what conduct comprised this pattern of conduct. The hearing focused on the details of the alleged assault; Bavetta also referred to the interviews and stated that he had a terrible year after the incident because Strom had told so many people in basketball that Bavetta had made up the story. See, Minutes.
Because the letter was vague as to the conduct being charged, even when considered in the context of the events that transpired, it was inadequate as "written specific charges" under the LMRDA. The cases cited by defendant, Perry v. Milk Drivers' and Dairy Employees Union, 656 F.2d 536 (9th Cir. 1981), Vars v. Int'l Brotherhood of Boilermakers, 215 F. Supp. 943 (D.Conn. 1963), and Null v. Carpenters District Council, 239 F. Supp. 809 (S.D.Tex. 1965), are distinguishable because in those cases the charges were more specific with regard to the conduct at issue.