Sheet Metal Workers' International Association Local

126 A.3d 1252, 443 N.J. Super. 39

• Court: New Jersey Superior Court Appellate Division
• Decided: November 13, 2015
• Docket: A-3646-13T1
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3646-13T1

SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION LOCAL UNION 22,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. November 13, 2015

APPELLATE DIVISION RAYMOND KAVANAGH,

Defendant-Appellant/ Third Party Plaintiff,

v.

DAVID CASTNER, THOMAS FISHBACK, JAMES O'REILLY, CHARLES BEELITZ, RICHARD KING, THOMAS GALLAGHER, JAMES SHARKEY, JOHN KEENAN, ALAN "BRUCE" PAK, JOHN CALIGUIRE, WILLIAM BUCHANAN,

Third-Party Defendants. _______________________________________

Argued September 29, 2015 – Decided November 13, 2015

Before Judges Fisher, Espinosa, and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3445-12.

Dominick Bratti argued the cause for appellant (Wilentz, Goldman & Spitzer, P.A., attorneys; Mr. Bratti, of counsel and on the briefs; Annemarie T. Greenan, on the briefs). Mark E. Belland argued the cause for respondent (O'Brien, Belland & Bushinsky, LLC, attorneys; Mr. Belland, of counsel; David F. Watkins, Jr., on the brief).

The opinion of the court was delivered by

CURRIER, J.S.C. (temporarily assigned).

In this appeal, we consider the factors to be applied by a

trial judge in determining the reasonableness of a fine imposed

by a union for the violation of its constitution. Defendant

Raymond Kavanagh appeals the April 9, 2014 order granting

summary judgment to plaintiff Sheet Metal Workers' International

Association Local Union 22 (Local 22) and confirming the fines

imposed against him by the union in this matter. After

reviewing the record in light of the contentions raised on this

appeal, we affirm the judge's ruling as to Kavanagh's violations

of the union constitution, but remand for the trial judge to

determine the reasonableness of the fine imposed, giving due

consideration to the factors we set forth in this opinion.

Kavanagh was a long-time member of Local 22. In 1997, he

became an owner of Quality Sheet Metal and Welding Inc. which

was not a signatory to a collective bargaining agreement. In

July 2011, Kavanagh was charged with violating the union's

constitution because he was not an employee or employer bound by

the collective bargaining agreement with Local 22. Kavanagh

resigned his membership the following month. He was informed

2 A-3646-13T1 that a trial would be held in October 2011. Kavanagh responded

that he was not subject to the union's jurisdiction because he

had resigned his membership and because he was not permitted to

bring outside counsel with him to the hearing. Following the

conclusion of the trial, at which Kavanagh did not appear, he

was found to have violated six provisions of Local 22's

constitution and was assessed a fine of $115,000.

A civil suit was filed to enforce the union judgment.

Summary judgment was granted to Local 22 and the fines were

confirmed. This appeal ensued.

On appeal, Kavanagh alleges numerous errors in the trial

judge's ruling on the motion for summary judgment. We deem it

necessary to only address the following arguments: Kavanagh

contends he was not subject to Local 22's jurisdiction as he had

resigned his membership, and his due process rights were

violated when he was not permitted to have counsel with him at

the hearing. Aside from the reasonableness of the fines, which

we address below, we do not find the remainder of the arguments

meritorious of discussion in a written opinion. R. 2:11-

3(e)(1)(E).1

1 Kavanagh contended that the trial court 1) applied the wrong standard of review in motions regarding the complaint, counterclaims and third party complaint; 2) failed to review de (continued)

3 A-3646-13T1 The relationship between a member and a union is a

contractual one; the union's bylaws and constitution are the

contract, and the contract is enforceable in state court. N.

Jersey Newspaper Guild v. Rakos, 110 N.J. Super. 77, 84 (App.

Div.), certif. denied, 56 N.J. 478 (1970). A union must

discipline members "in accordance with their constitutions and

bylaws." Id. at 88 (quoting Dudek v. Pittsburgh City Fire

Fighters, 228 A.2d 752, 756-57 (Pa. 1957)).

Kavanagh argues that his resignation was effective upon its

receipt,2 and he was, therefore, not subject to the union's

discipline. When a violation occurs before the resignation,

however, the member is still subject to the union's

jurisdiction. Article Eighteen of Local 22's Constitution and

Ritual provides for the discipline and sanction of former

members.3 "[A] union member must leave the union prior to his

(continued) novo the union's decision; and 3) erred in holding that he failed to exhaust internal remedies. 2 "Any member may resign from membership. Resignations shall be effective upon receipt of written notification by mail or hand delivery to any full-time officer or business representative at his or her local union." Constitution and Ritual of the Sheet Metal Workers Association, Art. 16, § 14. 3 "[A] suspended member and, also, a former member who has been expelled, or has resigned in accordance with Section 14 of Article Sixteen (16), shall be permitted to appear before a local union trial committee or an International Trial Board to (continued)

4 A-3646-13T1 violation of the union's rule if he is to avoid being

disciplined therefor." Newspaper Guild, supra, 110 N.J. Super.

at 88. Thus, the trial judge properly ruled that the union had

jurisdiction to impose disciplinary action against Kavanagh.

Article Eighteen also provides authority for an accused

party to select any good standing member of his or any other

local union as his counsel. Although this specific issue has

not been addressed by a New Jersey court, we again note that the

provisions set forth in a union's constitution form a contract

between the union and its members. The provisions establish the

procedure for an internal trial and appeal and include

punishable conduct. "[T]he courts' role is but to enforce the

contract." NLRB v. Allis-Chambers Mfg. Co., 388 U.S. 175, 182,

87 S. Ct. 2001, 2008, 18 L. Ed. 2d 1123, 1129 (1967).

Unions have a significant interest in controlling their

disciplinary proceedings; therefore, outsiders are prohibited

from appearing at the proceedings as there is no ability to

control their conduct. Local 22 had no contempt power or other

authority to control a non-union member's conduct in its

proceedings. Other jurisdictions have addressed this provision

(continued) defend against charges preferred against him or her . . . ." Id. at Art. 18, § 1(a).

5 A-3646-13T1 and found that union members are not entitled to outside counsel

during disciplinary trials. Cornelio v. Metro. Dist. Council,

243 F. Supp. 126, 128 (E.D. Pa. 1965) (upholding a union

provision which only permitted a union member to be represented

by another union member at a hearing), aff'd, 358 F.2d 728 (3d

Cir. 1966), cert. denied, 386 U.S. 975, 87 S. Ct. 1167, 18 L.

Ed. 2d 134 (1967); see United States v. Int'l Bhd. of Teamsters,

247 F.3d 370, 385 (2d Cir. 2001) ("Not all of the due process

protections available in the federal courts apply to union

disciplinary proceedings."); Frye v. United Steelworkers of Am.,

767 F.2d 1216, 1224 (D.C. Cir.), (federal law does not require

union disciplinary hearings to include all the protections

regarding judicial proceedings, including representation by an

attorney), cert. denied, 474 U.S. 1007, 106 S. Ct. 530, 88 L.

Ed. 2d 461 (1985); Curtis v. Int'l Alliance of Theatrical Stage

Emps. & Moving Picture Mach. Operators, 687 F.2d 1024, 1029 (7th

Cir. 1982) (upholding the decision to not allow plaintiff the

representation of a lawyer at a union hearing); Buresch v. Int'l

Bhd. of Elec. Workers, 343 F. Supp. 183, 191 (D. Md. 1971)

("Neither the Sixth Amendment to the United States Constitution

nor [federal law] guarantees a union member the right to be

represented by legal counsel in union disciplinary

proceedings."), aff'd o.b., 460 F.2d 1405 (4th Cir. 1972).

6 A-3646-13T1 We find, that as a member of Local 22, Kavanagh bound

himself to the provisions of its constitution. He was therefore

not entitled to be represented by outside counsel at the trial.4

Kavanagh was given the opportunity to appear and be heard; he

chose not to avail himself of that right.

A trial judge's review of internal union functions is

limited. "[W]here the proceedings within the organization have

been regular, fair, and free from fraud, and the party whose

rights are involved has been given the opportunity to appear and

be heard, the courts will not inquire into the merits of the

case or review the action of the association . . . . " Lewis v.

Am. Fed'n of State, Cnty. & Mun. Emps., 407 F.2d 1185, 1193 (3d

Cir.), cert. denied, 396 U.S. 866, 90 S. Ct. 145, 24 L. Ed. 2d

120 (1969). "'[A]lthough the courts may be without power to

review matters of credibility or of strict weight of the

evidence, a close reading of the record is justified to insure

that the findings are not without any foundation in the

evidence.'" Id. at 1195 (quoting Vars v. Int'l Bd. of

Boilermakers, 320 F.2d 576, 578 (2d Cir. 1963)). Mindful of

that admonition, we address the issue of the fines imposed

against Kavanagh as a result of the violations.

4 We note there are no restrictions on a member's right to consult with an attorney in preparation for the hearing.

7 A-3646-13T1 The constitution of the union authorizes the imposition of

a fine. In a suit brought by the union, the judge is to make a

determination as to whether the fine was arbitrarily imposed and

unreasonable in amount before enforcing it. Under Allis-

Chambers, supra, 388 U.S. at 192, 87 S. Ct. at 2013, 18 L. Ed.

2d at 1134, it should not be "unreasonably large." The judge

has the authority to reduce the fine if appropriate. Newspaper

Guild, supra, 110 N.J. Super. at 91.

New Jersey courts have not addressed the issue of what

constitutes an "unreasonably large" union fine since 1970. In

Newspaper Guild, the union brought several charges against the

defendant for improper activities during a strike; the defendant

had continued to earn income and received a promotion at the

company after the strike ended. Id. at 80. The judge analyzed

the challenged fine under the conditions present when the fine

was levied: the nature of the offenses, how the defendant

profited from the offenses, and the current economic conditions.

Id. at 91. The judge also looked to the inflationary climate

that existed in 1970 when assessing the reasonableness of the

fine. Ibid. Finally, the judge noted that the fine had a

punitive purpose that "was to serve as a deterrent to others."

Ibid. The judge confirmed the fine using these factors and

8 A-3646-13T1 found it to be sufficiently related to the conduct of the

defendant. Ibid.

Other jurisdictions looking at this issue have added other

factors to the analysis. In CWA Local 7400 v. Abrahamson, 422

N.W.2d 547, 549 (Neb. 1988), the union sought to enforce

judgment of fines it had imposed against seventy of its members

for their activity during a strike. The fines had been

calculated using the gross wages earned by the member for each

day worked during the strike. Id. at 553.

In considering the fine, the Nebraska Supreme Court looked

at the "reasonable relationship" between the fines and the

conduct that led to the penalty. Ibid. It noted that any

punitive effect the fines might have "in no way lessens their

effect in deterring future strikebreakers and in impressing upon

union members the importance of solidarity." Id. at 554.

Finally, the Abrahamson court recognized that liquidated damages

are appropriate in these types of union disputes as "the actual

damages to the union are impossible to ascertain. It is just

such a situation that liquidated damages are intended to cover."

Ibid.

Ohio has established a comprehensive analysis to determine

whether fines are "unreasonably large." Int'l Bhd. of Elec.

Workers, Local Union No. 986 v. Smith, 602 N.E.2d 782 (Ohio Ct.

9 A-3646-13T1 App. 1992). In Smith, the defendant was fined $5,000 after

voluntarily informing her employer that a fellow union member

intended to falsify her timesheet, a violation of the union

constitution. Id. at 783-84. The court began its analysis by

noting "[t]he severity of the fine alone or its punitive effect,

however, is not tantamount to . . . unreasonableness." Id. at

788. It then set forth the following eight factors to be used

when analyzing the reasonableness of the fine:

1) methods and formulas used for calculation, (2) the member's conduct for which the fine was imposed, (3) income of the member, (4) amount of fine, (5) resulting harm or damage to the union or its other members, (6) nature of offenses being punished, (7) manner and extent to which the member benefited or profited, and (8) the current economic conditions.

[Ibid. (citations omitted).]

In Newspaper Guild, supra, 110 N.J. Super. at 91, we

recognized that it was appropriate for a fine to "serve as a

deterrent to others who might be inclined to dilute the union's

bargaining power by defying its legitimate directives." To

properly redress the violative conduct, however, the fine must

be connected to the violations. We therefore find that in

determining the reasonableness of a union-imposed fine, the

trial judge should consider relevant factors, including the

following: 1) the conduct for which the fine was imposed; 2)

10 A-3646-13T1 the extent to which the member benefited or profited; 3) the

calculation of the fine; 4) the harm to the union and its

members; and 5) the current economic conditions. We believe

these factors provide the necessary framework for judges to make

the required assessment of union-imposed fines.

In light of the above ruling, we remand the matter for the

trial judge to consider the factors we have set forth in making

a determination as to the reasonableness of the fines imposed by

the union. We affirm the judge's rulings on the remaining

arguments.

Affirmed in part, remanded in part. We do not retain

jurisdiction.

11 A-3646-13T1