973 F.2d 1050 (2nd Cir. 1992), 91-9151, Phelan v. Local 305 of United Ass'n of Journeymen, and Apprentices of Plumbing and Pipefitting Industry of United States and Canada

Docket Nº:and 91-9151.
Citation:973 F.2d 1050
Party Name:Karen M. PHELAN, as Administrator of the Estate of Shane P. Phelan, Charlene Phelan, as Co-Administrator of the Estate of Shane P. Phelan, Donald V. Fitzgerald, Mark Cotton, Plaintiffs-Appellees, Cross-Appellants, v. LOCAL 305 OF the UNITED ASSOCIATION OF JOURNEYMEN, AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND
Case Date:August 25, 1992
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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973 F.2d 1050 (2nd Cir. 1992)

Karen M. PHELAN, as Administrator of the Estate of Shane P.

Phelan, Charlene Phelan, as Co-Administrator of the Estate

of Shane P. Phelan, Donald V. Fitzgerald, Mark Cotton,

Plaintiffs-Appellees, Cross-Appellants,




UNITED STATES AND CANADA, Patrick Quinn, Terrence Quinn,

Defendants-Appellants, Cross-Appellees,

United Association of the Plumbing and Pipefitting Industry

of the United States and Canada, Defendant-Cross-Appellee,

Mechanical Contractors Association of Connecticut, Inc.,

Eastern Connecticut Mechanical Contractors

Association, Inc. and Stone & Webster

Engineering, Defendants.

Nos. 1287-1289 and 1386, Dockets 91-9145, 91-9147, 91-9149

and 91-9151.

United States Court of Appeals, Second Circuit

August 25, 1992

Argued May 1, 1992.

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[Copyrighted Material Omitted]

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Joel M. Ellis, West Hartford, Conn. (William S. Zeman, of counsel), for defendant-appellant/cross-appellee Patrick Quinn.

Robert M. Cheverie, Hartford, Conn. (Bianca D. Mackey, Robert M. Cheverie & Associates, of counsel), for defendant-appellant/cross-appellee Local 305.

Richard S. Brook, Mineola, N.Y., for defendant-appellant/cross-appellee Terrence Quinn.

Sally M. Tedrow, Washington, D.C. (Francis J. Martorana, O'Donoghue & O'Donoghue, of counsel), for defendant-cross-appellee United Ass'n.

Leon M. Rosenblatt, West Hartford, Conn. (M. Katherine Wood, Rosenblatt & Mills, of counsel), for plaintiffs-appellees-

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/cross-appellants Karen M. Phelan, et al.

Terry R. Yellig, Stephen E. Coye, Sherman, Dunn, Cohen, Leifer & Yellig, Washington, D.C., on the brief, for amicus curiae, Building and Const. Trades Dept., AFL-CIO.

Susan M. Jennik, Brooklyn, N.Y., on the brief, for amicus curiae, Ass'n. for Union Democracy.

Before: MESKILL, Chief Judge, NEWMAN, Circuit Judge, and ARCARA, [*] District Judge.

MESKILL, Chief Judge:

On this appeal and cross-appeal from a judgment entered on jury verdicts in the United States District Court for the District of Connecticut, Clarie, J., we must decide whether Title I of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411 et seq., also known as the LMRDA Bill of Rights, grants us jurisdiction to hear suits brought by plaintiffs who were members of Local No. 76 (Local 76) of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (United Association), against a sister local and one of its officers. We also address, inter alia, the appropriate limitations period for counts alleging a breach of the duty of fair representation, violations of the LMRDA Bill of Rights and breaches of union constitutions.

Affirmed in part, reversed in part and remanded to the district court for further proceedings not inconsistent with this opinion.


Plaintiffs Phelan, Fitzgerald and Cotton were members of defendant Local 76, one of United Association's chartered locals. When work was unavailable within Local 76's geographic jurisdiction, plaintiffs would travel to the jurisdiction of defendant Local No. 305 (Local 305), another of United Association's chartered locals. Local 305 operated a hiring hall that referred workers to employers under the terms of collective bargaining agreements between Local 305 and employers in its area. Plaintiffs sought work through that hiring hall.

Defendant Mechanical Contractors' Association of Connecticut (MCAC) is the collective bargaining representative of construction contractors doing business in Connecticut. It has entered into collective bargaining agreements with the United Association and its local chapters in the State of Connecticut. Defendant Eastern Connecticut Mechanical Contractors' Association (ECMCA) is the MCAC's agent for collective bargaining in Local 305's geographic jurisdiction.

Defendant Stone & Webster Engineering Corp. (Stone & Webster), a member of both ECMCA and MCAC, was for a number of years the largest employer of Local 305 members. It employed them to work at the Millstone Point Nuclear Power Facility (Millstone) in Waterford, Connecticut. Because of the size of the Millstone project, Stone & Webster's need for plumbers at times exceeded Local 305's membership. When that occurred, members of other United Association locals who had registered with Local 305's hiring hall by signing the out-of-work book were referred to Millstone for work.

Defendant Patrick Quinn was Business Manager of Local 76 from June 1982 through June 20, 1985. During all times relevant to this action Terrence Quinn, Patrick Quinn's brother, was Business Manager of defendant Local 305.

In April 1982, Phelan nominated Fitzgerald to oppose Patrick Quinn in the June 1982 election for the position of Local 76's Business Manager. Despite Phelan's active campaigning on Fitzgerald's behalf, Quinn won reelection.

In October 1982, Fitzgerald went to Local 76's hiring hall and requested that he be referred to work at Millstone. Patrick

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Quinn responded to the request, telling Fitzgerald in effect that he had no problem with that as long as Fitzgerald "got out of his face on the union floor"--that is, remained quiet at meetings. Fitzgerald agreed and, within a week, Fitzgerald received a referral to Millstone. Apparently, however, Fitzgerald's acquiescence did not last long.

Testimony at trial showed that Patrick Quinn resented Fitzgerald's continued opposition during 1983 and later and that he had stated that he would get even with Fitzgerald for causing him difficulty within the union. To this end, Patrick Quinn walked around union meetings jotting down notes to himself when members would agree with what Fitzgerald said. According to one witness, Patrick Quinn had stated that he could hurt union members who made derogatory remarks about him by affecting their ability to work at Millstone.

Patrick Quinn's opportunity for revenge was his ability to affect hiring hall referrals and to control the work that Local 76's members obtained. Members of Local 76 obtained work at Millstone by procuring a travel card from Patrick Quinn and registering with Local 305 through Terrence Quinn. Testimony indicated that Patrick Quinn had boasted that he and his brother Terrence controlled Millstone.

On January 18, 1985 Fitzgerald was laid off from a job that he held at Stone & Webster. Many others were laid off at this time as well.

On February 27, 1985, Phelan, Cotton and Fitzgerald attempted to register for work at Millstone by signing the out-of-work book at Local 305's hiring hall. Officials at the hall refused to allow them to sign the out-of-work book, and the three thus were unable to get the work that they had sought. Telephone records revealed that someone made a telephone call from Local 305 to Local 76 on that day during the time when plaintiffs were at Local 305.

From the Local 305 hiring hall, plaintiffs proceeded to the National Labor Relation Board's (NLRB) Hartford office where they filed unfair labor practice charges against Local 305. Plaintiffs prevailed before the Administrative Law Judge (ALJ). The NLRB affirmed the ALJ's decision, and in an unpublished order we enforced the NLRB's order.

In March 1985, Phelan, on behalf of himself, Cotton and Fitzgerald, wrote to the international union, United Association, about their problems. By letter dated April 2, 1985, United Association's president informed plaintiffs that their travel cards would be accepted by Local 305 if presented. Despite this assurance, plaintiffs did not attempt to register with Local 305 until June 25, 1985. In the interim, events that are significant to this appeal occurred.

Phelan and others ran against Patrick Quinn in the June 1985 election for Local 76's Business Manager. Patrick Quinn was defeated and ceased serving in that position on June 20, 1985.

On June 3, 1985, Phelan, Cotton and Michael Napolitano, who is not a party to this action, entered into an agreement with Local 76 to settle NLRB charges. In that agreement, Phelan and Cotton released Local 76's officers and agents--including Patrick Quinn--from all liability for actions that were or may have been within the scope of those charges and that occurred prior to the date of the agreement.

On June 10, 1985 at least one person was referred to work through the hiring hall. Thereafter, on June 25, 1985, plaintiffs registered with Local 305 for work at Millstone by signing an out-of-work book. They claim that they were given a different out-of-work book to sign than the one from which referrals regularly took place.

On December 3, 1985, Phelan, Fitzgerald and Cotton brought the present action. Their complaint, as subsequently amended, set forth a number of allegations. Counts One through Four were brought against Patrick Quinn, Terrence Quinn, United Association and Local 305. Count One alleged a breached of the duty of fair representation. Count Two alleged wrongful discipline in violation of 29 U.S.C. § 529. Count Three claimed that defendants conspired

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to deny plaintiffs rights guaranteed them under the LMRDA Bill of Rights, id. § 411 et seq. Count Four alleged that defendants violated section 301 of the Labor Management Relations Act (LMRA), id. § 185, by breaching the United Association's constitution and the locals' bylaws. Count Five alleged that all seven defendants, in violation of section 301 of the LMRA, breached both (1) the Collective Bargaining Agreement between Local 305 and the MCAC and ECMCA, and (2) the Rules and Regulations of the Joint Hiring Committee. Counts Six through Eleven set forth a number of pendent state claims. Subsequently, the claims against MCAC and ECMCA were withdrawn.

In the district court's May 17, 1990 ruling, it granted summary...

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