Conery v. Niccollai

34 F. App'x 839

• Court: Court of Appeals for the Third Circuit
• Decided: April 4, 2002
• Docket: 01-2870
• Status: Unknown

Opinion

OPINION

RESTANI, Judge.

On March 31, 1998, the District Court granted summary judgment for defendants based on the Report and Recommendation (“Report”), dated January 14, 1998, of Magistrate Judge G. Donald Haneke. Previously, on September 26, 1994, the District Court had granted defendants’ partial summary judgment as to Conery’s malicious prosecution claims.

STATEMENT OF FACTS

This appeal arises out of claims brought by William J. Conery, Kenneth Burdge and Frank Fusco against various officers of Local 464A United Food and Commercial Workers Union (“Local 464A”) for allegedly engaging in a continuous and systematic campaign of harassment to prohibit Conery and other union members from exercising their rights under the Labor Management Reporting and Disclosure Act (“LMRDA”) and National Labor Relations Act (“NLRA”) in order to suppress dissent within Local 464A.

In 1982, defendant John T. Niccollai, Jr. was appointed to his position as President of defendant Local 464A as a result of the death of the former president. Defendant Niccollai was re-elected President in 1983, 1986, 1989, 1992 and 1995. Conery maintains that various officers of Local 464A organized and executed a campaign of harassment against him in response to Conery’s dissident activities in Local 464A, including Conery’s decision to run for president in Local 464A’s elections in 1989 and 1992. According to Conery, this harassment included (a) the filing of a civil RICO lawsuit in retaliation for Conery’s dissident union activities; (b) the filing of an assault charge in Municipal Court to “convince” him to stop participating in union affairs; and (c) the verbal and physical harassment of Conery dating back to April of 1987 in order to suppress dissent within the union.

DISCUSSION

Conery asserts violations of his rights under Sections 101(a)(1)(2) and (4) of the LMRDA, 29 U.S.C. §§ 411(a)(1)(2) and (4). Section 101(a)(1) was intended to guarantee union members the right to participate in Union campaigns and elections and to attend membership meetings. That section provides:

Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums or a labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.

LMRDA § 101(a)(1), 29 U.S.C. § 411(a)(1). The United States Supreme Court has held that the provisions of § 101(a)(1) are narrow in scope. Calhoon v. Harvey, 379 U.S. 134, 138-39, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). The Calhoon Court explained that § 101(a)(1) is:

no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote. And Congress carefully prescribed that even this right against discrimination is “subject to reasonable rules and regulations by the union.”

Id. A cause of action by a union member cannot be sustained under § 101(a)(1) without some claim of discrimination and some demonstration that the plaintiff has been denied the right to nominate or vote. Id.

Section 101(a)(2) was intended to guarantee union members the right to express their views and opinions regarding union elections and officers. That section provides in relevant part:

Every member of any labor organization shall have the rights ... to express any views, arguments or opinions ... Provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.

LMRDA § 101(a)(2), 29 U.S.C. § 411(a)(2). Nevertheless, the Supreme Court has held that a violation of free speech rights by itself is insufficient to violate § 101(a)(2). Sheet Metal Workers’ Int’l Assoc. v. Lynn, 488 U.S. 347, 353, 109 S.Ct. 639, 102 L.Ed.2d 700 (1989). The infringement on free speech must be viewed with reference to the basic objective the LMRDA. Id. That objective is “to ensure that unions [are] democratically governed, and responsive to the will of the union membership as expressed in open periodic elections.” Finnegan v. Leu, 456 U.S. 431, 441, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982).

As set forth in detail in the Report, Conery participated fully in union elections and spoke his mind. He ran for office and supported other candidates. None of the actions of the Local 464A officials interfered with Conery’s rights to vote for and nominate candidates, nor did he present evidence establishing interference with the democratic governing of the union. The Report did not mischaraeterize the facts or misinterpret the law and was properly adopted by the District Court.

29 U.S.C. § 411(a)(4) forbids union officials from barring its members from instituting legal proceedings. Apparently, Conery’s claim under § 411(a)(4) relates to attempts to forestall further complaints to the NLRB. Conery did not discuss § 411(a)(4) in his briefs. To the extend this issue is not waived, Conery did not establish material facts at issue with regard to claim arising under § 411(a)(4).

The District Court also properly granted summary judgment as to the state law claim for malicious prosecution for failure to raise material facts as to a special grievance under New Jersey law. See Venuto v. Carella, Byrne, Bain, Gilfillan, Cecchi & Stewart, P.C., 11 F.3d 385, 392 (3rd Cir.1993). We do not consider plaintiffs argument, raised for the first time on appeal, that the special grievance requirement does not apply to a criminal complaint.

The judgment of the District Court will be AFFIRMED.