Brown v. Sombrotto

• Decision Date: 19 August 1981
• Docket Number: No. 80 Civ. 6234 (CBM).,80 Civ. 6234 (CBM).
• Citation: 523 F. Supp. 127
• Parties: Madeline BROWN and Augusto Ratto, Plaintiffs, v. Vincent SOMBROTTO, as President of the National Association of Letter Carriers; National Association of Letter Carriers: Joseph Giordano, as President of the New York Letter Carriers, Branch 36, National Association of Letter Carriers; and New York Letter Carriers, Branch 36, National Association of Letter Carriers, Defendants.
• Court: U.S. District Court — Southern District of New York

523 F. Supp. 127

Madeline BROWN and Augusto Ratto, Plaintiffs, v. Vincent SOMBROTTO, as President of the National Association of Letter Carriers; National Association of Letter Carriers: Joseph Giordano, as President of the New York Letter Carriers, Branch 36, National Association of Letter Carriers; and New York Letter Carriers, Branch 36, National Association of Letter Carriers, Defendants.

No. 80 Civ. 6234 (CBM).

United States District Court, S. D. New York.

August 19, 1981.

Hall, Clifton & Schwartz by Arthur Z. Schwartz, New York City, for plaintiffs.

Cohen, Weiss & Simon by James V. Morgan, Franklin Moss, New York City, for defendants.

MEMORANDUM OPINION

MOTLEY, District Judge.

Plaintiffs Madeline Brown and Augusto Ratto are members of the New York Letter Carriers, Branch 36, National Association of Letter Carriers (Branch 36). They brought this action against the National Association of Letter Carriers (NALC); Branch 36; Vincent Sombrotto, President of NALC; and Joseph Giordano, President of Branch 36, pursuant to Section 102 of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 412. Plaintiffs seek declaratory and injunctive relief against the future use of a voting practice which they claim deprives them of their equal right to vote, in violation of Section 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1), and of NALC's Constitution. Plaintiffs and defendants moved for summary judgment. For the reasons discussed below, plaintiffs' motion for summary judgment is denied and defendants' motion for summary judgment is granted.

The Facts

The facts relevant to the motions for summary judgment are not in dispute. NALC and Branch 36 are labor organizations within the meaning of Section 3(i) of the LMRDA, 29 U.S.C. § 402(i). Branch 36 is a subordinate branch of NALC which draws its membership from Manhattan and the Bronx. NALC has approximately 225,000 members. Branch 36 has approximately 8,500 members. The internal operations of NALC, including elections and voting procedures, are governed by NALC's Constitution.

From August 10 through 16, 1980, NALC conducted its 52nd Biennial Convention (the National Convention) at Atlanta, Georgia. On August 14, 1980, delegates to the National Convention voted by written ballot for six delegates from NALC to the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) Convention and for the 1984 NALC Convention City. Pursuant to Article IV, Section I of the NALC Constitution, each affiliate branch is "entitled to one delegate and one vote in the National Convention for each twenty (20) members or fraction thereof." Branch 36 was therefore entitled to 426 votes at the National Convention.

Prior to August 10, the members of Branch 36 elected 131 delegates to the National Convention. Plaintiffs Brown and Ratto were among these delegates. On August 10, before most of the delegates had arrived, Branch 36 registered the 131 Branch 36 delegates who had been duly elected by branch members and certified by Branch 36 President Giordano. Only 65 of the 131 elected and registered delegates actually attended the National Convention.

Article IV, Section 4 of the NALC Constitution provides:

The delegates from any Branch present at the National Convention shall be allowed to cast the whole number of votes to which the Branch is entitled, provided such delegates agree unanimously as to who among them shall cast such vote. In case of disagreement the delegates in attendance shall be entitled to such number of whole votes as can be divided equally among them each pro rata....

Prior to the balloting for NALC delegates to the AFL-CIO Convention and for the 1984 NALC Convention City on August 14, Branch 36 delegates met to discuss balloting procedures. Since the delegates were in disagreement, a procedure was established whereby those delegates who wished to vote individually indicated this intention by placing their names on a list. Twenty-seven delegates indicated that they wished to cast individual ballots. The other Branch 36 delegates at the meeting indicated that a Branch 36 officer should cast their votes for them.

During the election, Branch 36 Recording Secretary DeLuca cast a consolidated vote for the 38 Branch 36 delegates at the National Convention who were in agreement as well as for the 66 elected and registered delegates who were not present at the Convention. He allocated the votes by dividing the number of elected and certified Branch 36 delegates registered at the Convention (131) into the total number of votes to which Branch 36 was entitled (426), arriving at 3 votes per delegate. Accordingly, each of the ballots of the 27 delegates who voted individually counted as 3 votes. DeLuca voted on behalf of the remaining 104 registered delegates. That ballot counted as 312 votes.

On August 15, 1980, NALC Election Commissioner Joseph LaPlaca reported the results of the balloting to the National Convention and the report was unanimously adopted. Subsequently, plaintiff Ratto stated from the floor of the Convention that she objected to the manner in which Branch 36 voted. President Sombrotto responded that she could appeal the manner of voting to the NALC Election Committee.

On that day, plaintiffs Brown and Ratto sent to the Credentials Committee and the Election Committee a letter of protest stating that Branch 36 President Giordano and Recording Secretary DeLuca violated the NALC Constitution by registering and casting votes for delegates who were not physically in attendance at the Convention and by allowing part of the Branch delegation to vote individually and part as a block. They claimed that allocating only 3 votes to those who voted individually deprived them of their proper proportion of the total number of Branch 36 votes. Election Commissioner LaPlaca responded in a letter that, since the number of votes involved would not have any bearing on the outcome of the elections, the election would not be overturned.

On August 22, 1980, plaintiff Brown went to the United States Department of Labor to file a complaint concerning the election, pursuant to Section 402 of Title IV of the LMRDA, 29 U.S.C. § 482. The Department of Labor refused to accept the complaint because, according to the official with whom Brown spoke, the election of NALC delegates to the AFL-CIO Convention was not covered by Title IV. This opinion was confirmed by a letter from the Department of Labor to Brown dated September 2, 1980. Plaintiffs then filed this action pursuant to Section 102 of Title I of the LMRDA, 29 U.S.C. § 412.

Discussion

Defendants argue that the complaint should be dismissed for lack of subject matter jurisdiction because the exclusive remedy provided by the LMRDA for challenging the election at the National Convention is a civil action brought by the Secretary of Labor upon timely complaint filed by a member of the union. See 29 U.S.C. §§ 482-483; Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). Defendants contend that although plaintiffs allege jurisdiction under Title I of the LMRDA and seek relief against future union conduct, they are actually seeking post-election review of the manner in which the vote was counted for violations of Title IV.

Title IV of the LMRDA, 29 U.S.C. §§ 481-483, prescribes procedures for the election of officers of national and international labor organizations, as well as the exclusive remedy for challenging these elections. Section 3(n) of the LMRDA, 29 U.S.C. § 402(n), defines "officer" as follows:

"Officer" means any constitutional officer any person authorized to perform the functions of president, vice president, secretary, treasurer, or other executive functions of a labor organization, and any member of its executive board or similar governing body.

The court finds that the election at issue does not fall within the protection of Title IV because NALC delegates to the AFL-CIO Convention are not "officers" within the meaning of Section 3(n). The AFL-CIO is comprised of approximately 101 affiliated national and international labor organizations. NALC is one of these affiliated unions. Article IV, Section 3 of the NALC Constitution provides that the NALC National Convention shall elect AFL-CIO delegates, except that the President and Secretary-Treasurer of NALC are AFL-CIO delegates by virtue of their office. The role of NALC AFL-CIO delegates is to represent NALC at the biennial AFL-CIO Convention. They participate in the deliberations of the AFL-CIO Convention and vote upon resolutions which come before it. The AFL-CIO Convention is the supreme governing body of the AFL-CIO with respect to all matters of AFL-CIO policy, which is determined by the vote of the delegates.

The NALC delegates to the AFL-CIO Convention, however, perform no executive functions with respect to the governing of NALC. They do not decide what NALC policy should be; rather, they vote at the AFL-CIO Convention in accordance with the policy decisions made by the Executive Council and President of NALC. The AFL-CIO delegates are not included in the list of elective officers in Article VI, Section 1 of the NALC Constitution. Thus, the function of NALC's delegates to the AFL-CIO Convention is distinguishable from that of the patrolmen in Wirtz v. National Maritime Union of America, 399 F.2d 544 (2d Cir. 1968). In that case, the Court of Appeals, in holding that patrolmen of the National Maritime Union were "constitutional officers" within the meaning of the Section 3(n) definition, found persuasive the treatment of patrolmen as officers by the union's constitution. In addition, the court noted that patrolmen were responsible for the strict enforcement of the union's no-discrimination policy and collective bargaining agreements and for adjusting grievances. NALC's delegates to the AFL-CIO Convention have no such responsibilities within NALC. Of course, the selection of the 1984 NALC Convention City...