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Brenner v. Local 514

filed: March 18, 1991.

ROBERT B. BRENNER, JUDE BRENNER, ALEXANDER BRONSBERG, GEORGE BUTCHKO, EUGENE CARDONI, GERALD DRAUSE, MARCELLA DRAUS, JOHN EVANITUS, CATHERINE EVANITUS, JOHN GOULD, JUANITA GOULD, MICHAEL HARDIK, CATHERINE HARDIK, FRANK HEYLEK, MARGARET HEYLEK, DONALD HOYT, MARIE HOYT, ROBERT T. JOHNSON, MARY LOU JOHNSON, JOSEPH A. KOPEZA, JR., CATHERINE KOPEZA, NICHOLAS KOVALCHIK, BERNADINE KOVALCHIK, ROBERT KREIDLER, NANCY KREIDLER, STANLEY J. MAZUR, JR., DOROTHY MAZUR, RICHARD E. MOGAVERO, RICHARD F. MOGAVERO, ROBERT T. MORGAN ET UX, RONALD PETRO, ANN PETRO, NICHOLAS POLITZ, BEVERLY POLITZ, JAMES F. ROBERTS, JR., NANCY H. ROBERTS, GERALD C. SIPERKO, SUSAN K. SIPERKO, FRANK TERESCAVAGE, DANIEL J. TROTTA, EUGENE C. TURNER, ALICE E. TURNER, WAYNE YATSKO, LEONA YATSKO, JOHN ZIMNICKY, AND JEAN ZIMNICKY, APPELLANTS
v.
LOCAL 514, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; KEYSTONE DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; EDWARD BLAZEJEWSKI, SR.; GEORGE WALISH, GENERAL EXECUTIVE, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; JOHN ANELLO, REPRESENTATIVE, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; PAT CAMPBELL, GENERAL PRESIDENT, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA



On Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Civil No. 86-01391.

Dolores K. Sloviter, Chief Judge*fn*, Becker and Rosenn, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Chief Judge

Plaintiffs, members of Local 514, United Brotherhood of Carpenters and Joiners of America and their wives, filed suit in the Middle District of Pennsylvania against Local 514 (the Local), the Keystone District Council, the United Brotherhood of Carpenters and Joiners of America (the International), and various officials of the local and international unions alleging that plaintiffs had been treated discriminatorily in retaliation for their internal union activities. Plaintiffs asserted a claim under section 301 of the National Labor Relations Act (NLRA), 29 U.S.C. § 185, a claim under sections 101(a) and 609 of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 411(a) and 529, and various pendent state law claims. The district court granted summary judgment in favor of the international union and its officials on all five of the plaintiffs' counts. It also granted summary judgment in favor of the local union and the remaining defendants on four of the five counts and, as to the remaining count which alleged a breach of the duty of fair representation under section 301, applied a six-month limitations period. Because there remains pending the portion of that claim which is based on acts within the six-month period, the district court certified its order granting summary judgment on the other claims as final pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Therefore, this court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

I.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Although there is a substantial dispute with respect to the underlying facts, for the purpose of the summary judgment motions we will construe the facts in the light most favorable to the plaintiffs.

Defendant Edward Blazejewski, Sr. was the business agent of Local 514 in 1979 when it was discovered that the local union election ballots had been marked so that Blazejewski was able to ascertain which union members had opposed his candidates. Blazejewski's son, Edward Blazejewski, Jr., was on the slate of candidates for which Blazejewski campaigned. Most of the plaintiffs allege that they voted against Blazejewski's candidates in this election and were thereafter discriminated against in several ways. The other plaintiffs allege that the retaliation against them began either after they challenged Blazejewski's conduct as the business agent or otherwise manifested opposition to his leadership. Some of the union members notified the International Union in writing about the marked ballot election, but the International declined to set aside the election or replace Blazejewski as the business agent on the ground that the result of the election had not been affected.

Pursuant to its collective bargaining contract, the Local maintained a nonexclusive local hiring hall,*fn2 administered by Blazejewski, where union members would sign a hiring hall list when they became unemployed. The longstanding practice within the Local was to refer members to work in order, unless a union member was specifically requested by an employer. Each of the plaintiffs contends that Blazejewski either refused to refer him out to work through the hiring hall or consistently referred him to undesirable assignments, such as at distant locations or for short-term assignments at a reduced income. In addition, some of the plaintiffs submitted affidavits stating that Blazejewski arranged for the discontinuation of their health care benefits, selectively enforced valid union rules against them, used an admittedly illegal fund to pay only those strikers who were loyal to him, and threatened and otherwise intimidated opposition members. Eleven of the plaintiffs withdrew from Local 514 during Blazejewski's tenure, allegedly because they could no longer afford to pay their union dues, or support themselves and their families without work referrals.*fn3

Some of the plaintiffs filed charges with the National Labor Relations Board (NLRB) in early 1984, protesting the hiring hall system and alleging that Blazejewski refused to refer certain carpenters in retaliation for their internal union activities. The NLRB found that charges filed by certain of the plaintiffs were without merit, but it proceeded to a settlement with the Keystone District Council with respect to the hiring hall charges filed by others of the plaintiffs.

Some plaintiffs also complained in writing to the International in 1983 and 1986, specifically calling the International's attention to the failure of Blazejewski to refer certain carpenters for employment. There were also other written complaints to the International between 1982 and 1986 which mentioned hiring hall abuses in addition to other misconduct by the Local. In 1983, the International appointed John Anello to investigate the charges, and he reported that there was no basis for the allegations of hiring hall impropriety. The International again appointed Anello to investigate the 1986 charges. He reported that there was some truth "on both sides of the fence" but that this would be a moot question because Blazejewski was retiring in a month. App. at 727. He recommended looking into the hiring and referral system thereafter, and a more formal procedure governing referrals was instituted after Blazejewski's retirement.

Plaintiffs filed this suit in the district court on October 3, 1986. Their claim under section 301 of the NLRA asserted that Local 514 and the Keystone District Council breached their duty of fair representation by refusing to refer plaintiffs to work and otherwise discriminating against them in retaliation for their intra-union activities, and that the International participated in, ratified, encouraged, or affirmed this wrongful conduct. Their claim under sections 101(a) and 609 of the LMRDA filed against the Local, District Council, and International as well as Blazejewski and the officials of the International, George Walish, the General Executive, John Anello, and Pat Campbell, General President, asserted that plaintiff union members were improperly disciplined for exercising their rights protected by Title I of that statute.

All of the defendants filed motions for summary judgment. The district court held that plaintiffs failed to establish a basis for relief under the LMRDA because they had not alleged any official union conduct with respect to their mistreatment, and therefore the defendants' conduct could not constitute "discipline" within the meaning of section 609 of the LMRDA.

As to plaintiffs' section 301 claim, the district court held that the International, which was not a party to the collective bargaining agreement, could not be held responsible for the Local's abuses in administering the hiring hall referral system and that the International's failure to intervene did not constitute a breach of its own constitution. The court also held that plaintiffs failed to produce sufficient evidence to show that the International encouraged, authorized or ratified the Local Union's conduct. As a result, the court concluded that plaintiffs failed to establish a basis for the International's liability under section 301, and it followed that the plaintiff wives could not recover from the International under their derivative loss of consortium claim.

With respect to the section 301 claim against the Local, the district court applied the six-month limitations period found in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), and held that the continuing violation theory does not apply to this case to extend the limitations period. Thus, all claims which occurred prior to April 4, 1986 were found to be time-barred.*fn4

As noted above, the district court certified its order under Rule 54(b). Our standard of review of the grant of a summary judgment motion is plenary. Waldorf v. Shuta, 896 F.2d 723, 728 (3d Cir. 1990). Summary judgment can be granted only if there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment must be denied. Id. We turn to that issue.

II.

NLRA CLAIM

A.

Maintenance of the § 301 Claims Against the Unions

The Local Union (referring throughout to the Local, the District Council, and Blazejewski)*fn5 does not contest that the allegations of failure to refer union members fairly from the hiring hall constitutes a breach of the union's duty of fair representation cognizable under section 301 of the NLRA. As the Supreme Court noted in Breininger v. Sheet Metal Workers International Association Local Union No. 6, 493 U.S. 67, 107 L. Ed. 2d 388, 110 S. Ct. 424, 437 (1989), a union gains the ability to refer workers for employment through a hiring hall because of its status as a Board-certified bargaining representative. It stated: "Together with this authority comes the responsibility to exercise it in a nonarbitrary and nondiscriminatory fashion, because the members of the bargaining unit have entrusted the union with the task of representing them." Id. The Court continued: "That the particular function of job referral resembles a task that an employer might perform is of no consequence. The key is that the union is administering a provision of the contract, something that we have always held is subject to the duty of fair representation." Id.

On the other hand, the International Union (encompassing also its officials) does vigorously challenge maintenance of a section 301 claim against it. Unlike the Local, it is not a party to the collective bargaining agreement and thus it claims it cannot be held liable for a breach of the duty of fair representation. The International argues that it cannot be held responsible for the unlawful conduct of its affiliated local unions unless it either instigated, supported, ratified, or encouraged such conduct, or it assumed a duty to the employer or union members to prevent such conduct. It claims that there is no evidence that it did any of these things.

The International's position finds strong support in the decision of the Supreme Court in Carbon Fuel Co. v. United Mine Workers of America, 444 U.S. 212, 218, 62 L. Ed. 2d 394, 100 S. Ct. 410 (1979), where it held that the international union was not responsible for the local union's strikes when the international union did not instigate, support, ratify, or encourage any of the local union's work stoppages. Thereafter, this court applied Carbon Fuel in Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, Local 120, 647 F.2d 372, 382 (3d Cir. 1981), cert. denied, 454 U.S. 1143, 71 L. Ed. 2d 295, 102 S. Ct. 1003 (1982), holding that the international union was not liable to the employer because it was not a party to the collective bargaining agreement, and that the international's employees could be liable only if they induced a breach of contract by the local union.

Plaintiffs respond that the International Union is liable because its failure to step in and remove the discrimination amounted to an instigation, support, ratification, or encouragement of the abuses suffered by the plaintiffs. Alternatively, they argue that the International assumed a duty to the plaintiffs to prevent such discrimination in its constitution.

To support their allegation that the International Union ratified or encouraged the Local Union's conduct, the plaintiffs direct the court's attention to the fact that the International did nothing to help the plaintiffs despite numerous pleas to both the International Union and the NLRB. The record is indeed replete with evidence of notice by plaintiffs to the International. Thus, for example, plaintiff John Zimnicky began writing to the International as early as June 1982 complaining about inequities in job referrals. Anello admitted in his deposition that he was reluctant to second-guess anything that Blazejewski did as business representative. Moreover, Anello, the International Union's "general representative" (which he also described as the "representative of the General President," App. at 761), personally witnessed at least one incident of physical abuse by Blazejewski against a dissident union member. App. at 292.

Although the International may have been intentionally or negligently guilty of tunnel vision, we agree with the district court's holding that the evidence produced by the plaintiffs does not show that the International encouraged, authorized or ratified the actions of the Local in discriminatorily failing to refer plaintiffs to work. It is unrebutted that the International conducted investigations on the two occasions when it received letters written for the specific purpose of protesting hiring hall abuses. It was not required to credit either version of the events as true, for the plaintiffs' letters contained nothing more than allegations of fact. See Rodonich v. House Wreckers Union Local 95, 817 F.2d 967, 973-74 (2d Cir. 1987). Indeed, the International Union apparently found at least some merit in plaintiffs' 1986 charges because it took actions to assist the Local Union in reforming its hiring hall administration soon after the investigation.

Plaintiffs further assert that the International had notice of the several charges filed with the NLRB alleging hiring hall abuses. Assuming that the International did have notice of such charges, it also would have known that the NLRB found most of them to lack merit. The charges that were meritorious were settled by union members and the Keystone District Council. Thus, the International's failure to act after these charges were filed does not evidence ratification or encouragement of the Local's actions for the same reason that knowledge of the charges made directly to the International does not indicate condonation.

Finally, neither the fact that several other letters to the International mentioned hiring hall abuses nor the failure of Anello to take actions after witnessing the verbal and physical attack on a union member demonstrates encouragement or ratification. Mere constructive knowledge of possible illegal activity on the local level is not sufficient to impose a legal duty to intervene on the International Union. See Chapa v. Local 18, 737 F.2d 929, 932 (11th Cir. 1984) (refusing to hold international union liable for retaliatory discipline by the local union even though an international union official was present at the local union meeting when the unlawful discipline was meted out).

In Carbon Fuel, the Court made it clear that in suits against an international for breach of contract, the union's liability will be governed by common law rules of agency as provided expressly in section 301(e). 444 U.S. at 216-18. Although there the issue was responsibility for strikes, the same analysis is applicable here. The Court stated: "In the face of Congress' clear statement of the limits of an international union's legal responsibility for the acts of one of its local unions, it would be anomalous to hold that an international is nonetheless liable for its failure to take certain steps in response to actions of the local." Id. at 217-18.

Judge Rosenn, in his passionate dissent, reads the record as creating a genuine issue of disputed fact as to whether the International ratified Blazejewski's alleged discriminatory conduct. Although we have concluded otherwise, in light of the spirited presentation in the dissent we will respond in some detail.

The dissent's chronicle of references to plaintiffs' complaints to the International merely serves to support the conclusion we already reached that there is evidence in the record that the International had notice of complaints by union members of discriminatory job referrals. We note, however, that the dissent's portrayal may be somewhat misleading, because it gives the impression of repeated and continuous complaints to the International focused on the hiring hall retaliation, the issue here. In fact, many of the letters sent to the International were primarily directed to other grievances, such as the maintenance by Blazejewski of an illegal fund, with a subsidiary reference to the hiring hall charge. For example, the Zimnicky letter quoted by the dissent charging that the General President's office had condoned Blazejewski's gross misconduct for years was primarily directed to the allegation of the local's illegal establishment and administration of the Area 1 Fund.*fn6

Also, we do not believe that by referring to affidavits, such as that filed by Cardoni, prepared for the purposes of this suit, the dissent can properly conclude that, "Once again, the record reveals that written petitions by the members to the [International] failed to yield any result," Dissenting Op. at 1301.

Moreover, in arguing that the International ratified the local's "abuses," the dissent does not confine itself to the allegation of misconduct at issue in this case. Instead, it refers throughout to the International's failure to invalidate the 1979 election. Election improprieties are relevant, if at all, only as background. The issue before us is limited to whether the International ratified Blazejewski's retaliation against plaintiffs for their internal union activities.

A careful reading of the dissent shows that it relies for its ratification theory essentially on the International's decision to take no action notwithstanding the complaints.*fn7 That is insufficient as a matter of law and is not supported by the cases on which the dissent relies. For example, Consolidation Coal Co. v. Local 1702 United Mine Workers, 709 F.2d 882, 886 (4th Cir.), cert. denied, 464 U.S. 993, 78 L. Ed. 2d 683, 104 S. Ct. 487 (1983), presented a factual situation completely different than that before us. In that case, the court concluded that because "every member, including all officers and committeemen, engaged in the illegal strike, the union had made itself part of the illegality," inasmuch as the union "may only act through its officers, committeemen and members." Id. Nor is this case analogous to those cases where the unions were held liable under a ratification theory because they failed to investigate or take similar action based on undisputed conduct. See Yellow Bus Lines, Inc. v. Local Union 639, 280 U.S. App. D.C. 60, 883 F.2d 132 (D.C. Cir. 1989), vacated in part, 286 U.S. App. D.C. 182, 913 F.2d 948 (D.C. Cir. 1990); Prater v. UMWA, 793 F.2d 1201 (11th Cir. 1986).

Here, it is conceded that the International did exercise its power to conduct an investigation both in 1983 and 1986. Thus, in effect, what the dissent finds objectionable is not that the International failed to acknowledge those complaints made to it, but that it chose, after investigation, to withhold taking further action at that time. The dissent disagrees with the reasonableness of that decision. However, it cites no case which finds a union liable for ratification based on the court's disagreement with a union's conclusion, after investigation, that certain allegations made by members did not warrant intervention.

Even if such a theory of ratification were viable, the record does not fairly admit of the conclusion that the International's decision to stay its hand was so unreasonable as to amount to a knowing whitewash, and hence the type of encouragement which could constitute ratification. Anello testified that it was his practice to await an NLRB decision once charges were filed with it. App. at 924-25. The lengthy letter by Siperko referred to by the dissent at Dissent Typescript Op. at 8, was directed to the NLRB, not to the International. Siperko apparently sent the International a copy of his letter after he filed those charges, see App. at 533, which gave the International, even if it did not know it before, notice that the NLRB would investigate.

The complaints by Siperko about the hiring hall referral system together with others filed between December 29, 1983 and June 3, 1985 remained under investigation by the NLRB. It could not have been unreasonable under these circumstances for the International to have awaited some resolution or word from the NLRB as to whether it found that charges against the local had merit. On March 4, 1986, the NLRB found the portion of the charge made by Siperko "that the Union refused to refer you for employment for discriminatory reasons lacks merit." Siperko Deposition, Ex. 9. Similarly, the NLRB had notified Zimnicky on February 14, 1986 that the portion of his charge alleging failure to refer for arbitrary reasons had merit but that "there was insufficient evidence to establish that [he was] not referred for [his] internal union activities." Zimnicky Deposition, Ex. 44.

Thus, although on December 11, 1986 the NLRB ultimately settled the charges that the Keystone District Council operated the employment referral system using arbitrary standards when Keystone paid a total of $20,000 to the four charging parties and undertook to use objective standards and criteria, the NLRB found no basis to proceed on the retaliation claim which is the abusive conduct the dissent argues the International ratified. We do not suggest that there is not enough evidence of improper conduct by the local union and its officials to raise an issue of fact as to their liability, but the record belies any conclusion that the International's failure to take action following its 1983 investigation on the complaints forwarded to it constituted a ratification of the local union's actions.

The plaintiff union members have failed to designate the requisite "specific facts showing that there is a genuine issue for trial," Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), on the International's ratification of the actions of Local 514. Plaintiffs have not established, beyond mere conclusory allegations, that the International Union's failure to intervene could constitute ratification or encouragement.

We turn to the plaintiffs' alternative contention that the International Union assumed a duty to prevent the mistreatment of the members of Local 514 under the provisions of Section 6 of its own constitution. We have previously held that "a federal court has jurisdiction under section 301(a) [of the LMRA] over suits brought by an individual union member against . . . the international union for violation of a union constitution." Lewis v. International Bhd. of Teamsters Local 771, 826 F.2d 1310, 1314 (3d Cir. 1987).

In section 6 of the International Union's constitution, it reserves to itself powers of supervision and intervention. Paragraph D of Section 6 provides:

The United Brotherhood of Carpenters and Joiners of America shall have the right to establish supervision over and to conduct the affairs of any subordinate body (including the removal of any or all officers of such subordinate body) to correct financial irregularities or to assure the performance of collective bargaining agreements and the responsibility of the subordinate body as a bargaining agent or to protect the interests and rights of the members or whenever the affairs of the subordinate body are conducted in such a manner as to be detrimental to the welfare of the members and to the best interests of the United Brotherhood, subject, however, to the provisions of Paragraph H of Section 10.

(emphasis added). Section 10, referenced there, sets forth the procedures that must be followed before the International may intervene in the affairs of a local union.

Assuming that section 6 of the constitution gave the International the right to intervene to require the local fairly to refer union members from the hiring hall, we see nothing in section 6 which can be construed as an obligation undertaken by the International to do so. The retention of regulatory and supervisory powers by the International in Section 6 merely gave it a discretionary right, as distinguished from a duty, to intervene in the affairs of Local 514.

The distinction was drawn in Carbon Fuel, 444 U.S. at 218-22, where the Court held that the international union's promise in the collective bargaining agreement "to maintain the integrity of this contract" did not create a duty on the part of the international to use all reasonable means to prevent wildcat strikes. We similarly interpret the constitution at issue here. If the unions and their members wish to impose a contractual duty on the International to intervene and take action in each instance where members charge that a local union has failed to abide by its duty of fair representation, the union's constitution must state such an obligation in more explicit language than is contained in Section 6.

The language of the International's constitution relied on by the dissent cannot be fairly read to support its conclusion that the International has the constitutional obligation to intervene to preserve members' rights and enforce local laws. The provision which states that the "vested rights of the members shall be preserved," Section 6A, is inapplicable here because it relates only to the preservation of union members' rights when a local union is established, dissolved, merged or consolidated. The dissent's broad reading of that provision, see Dissent Typescript Op. at 16 n.3, is unpersuasive. The provision that the International "shall . . . enforce laws for its government and that of subordinate Locals," Section 6E, appears to relate to laws for the structure of the government of the locals, such as elections, rather than to the complaints at issue here.

In any event, we have assumed that under the International's constitution it could have taken a more active role with respect to the charges of hiring hall retaliation had it chosen to do so. Notwithstanding the dissent's belief that the International has the legal obligation to intervene to rectify every possible abuse by the locals, no language in the constitution suggests the International has made such an undertaking.

We are reluctant to anchor new signals in uncharted waters. Imposing upon an international union the legal obligation to protect local union members from allegedly abusive tactics by local officers could alter the delicate balance between local unions and their internationals, to the sacrifice of local union independence. Although the dissent has made evident its discomfort with Congress' authorization of union administration of hiring halls, any obligation this court were to impose on the International based on the broad language of the preamble to its constitution would be equally applicable to members' complaints outside the hiring hall context. If such a new policy is to be formulated, its benefits and detriments are matters to be evaluated by Congress. It is sufficient for this purpose for us to conclude that the law, in its present state, does not support the contractual obligation which the dissent would find from the language in the International's constitution.

It follows that, in the absence of a specific undertaking, the International cannot be held liable for a breach of contract and the district court did not err in granting summary judgment for it on the NLRA claim.*fn8

B.

Applicable Limitations Period

Turning now to the section 301 claim against the Local Union, plaintiffs argue that the district court erred as a matter of law in holding that the six-month limitations period found in section 10(b) of the LMRA applied to their breach of the duty of fair representation claim against the Local. They assert that the applicable limitations period is instead either Pennsylvania's two-year limitations period for fraud and other personal injury actions, 42 Pa. C.S.A. § 5524 (1981 and Supp. 1990), or its four-year limitations period for most breach of contract actions, 42 Pa. C.S.A. § 5525 (1981 and Supp. 1990).

In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983), the Court held that the six-month limitations period found in section 10(b) of the LMRA for making charges of unfair labor practices should be applied to a hybrid action under section 301 by an employee against both his employer and his union. In that case, the section 301 case was based on an allegation that the employer breached the collective bargaining agreement and the union breached its duty of fair representation in mishandling the ensuing grievance and arbitration proceedings. The Court held that, notwithstanding the general rule of applying the most closely analogous state statute of limitations when federal law is silent on the question of limitations, "in some circumstances . . . state statutes of limitations can be unsatisfactory ...


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