Commer v. Keller

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation64 F.Supp.2d 266
Docket NumberNo. 98 Civ. 7808 (AGS).,98 Civ. 7808 (AGS).
PartiesRoy COMMER, Plaintiff, v. Michael KELLER, et al., Defendants.
Decision Date27 August 1999

Arthur Z. Schwartz, Kennedy, Schwartz & Cure, P.C., New York City, for Plaintiff.

Rachel J. Minter, Law Office of Rachel J. Minter, New York City, for Defendants.


SCHWARTZ, District Judge.

Plaintiff commenced this action against defendants, union officers, alleging the violation of federal labor laws in connection with defendants' suspension of plaintiff from his position as president of the union. Plaintiff's motion for a preliminary injunction was rendered moot by his subsequent reinstatement, but plaintiff filed a Second Amended Complaint seeking monetary damages. Defendants have filed an Answer which asserts various counterclaims related to plaintiff's conduct as president. The case is before the Court on plaintiff's motion (i) to dismiss defendants' counterclaims, pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ.P.") 12(b)(6); and (ii) for sanctions, pursuant to Fed.R.Civ.P. 11. For the reasons stated herein, the motion to dismiss is GRANTED and the motion for sanctions is DENIED.


Plaintiff Roy Commer is the president of Civil Services Technical Guild, Local 375 (hereinafter "Local 375"), a union representing technical employees of the City of New York and various non-profit organizations. Local 375 is affiliated with the American Federation of State, County, and Municipal Employees ("AFSCME") and AFSCME's regional governing body, District Council 37 ("DC 37"). (Second Amended Complaint ("Compl.") ¶ 3.) Defendants are other members of the Executive Board of Local 375, who plaintiff alleges acted illegally when they suspended him from his position as president. (Id. ¶¶ 4, 7.)

Plaintiff was elected to the presidency of Local 375 in January 1998 on an anticorruption platform, after defeating an eighteen year incumbent. (Id. ¶ 5.) Since being elected president of Local 375, Mr. Commer alleges that he has spent much time and effort attempting to reform the union and expose alleged corruption. (Id.) Plaintiff alleges that, partly as a result of his efforts, AFSCME commenced an audit of the locals in DC 37. (Id. ¶ 6.)

The Executive Board of Local 375 suspended Mr. Commer from his position as president on or about November 8, 1998. (Id. ¶ 7.) The stated reasons for the suspension was that Mr. Commer had engaged in "conduct imminently dangerous to the welfare" of the union. (Id.) Defendants, in their opposition papers to plaintiff's original preliminary injunction motion, cited eleven charges against Mr. Commer, including acceptance of illegal gifts, improper use of funds, aid to a competing organization, interference with a subordinate body, instituting legal action without exhausting internal remedies, improper distribution of literature, and failure to follow requests of the Executive Board.

On or about November 26, 1998, AFSCME President Gerald McEntree, acting pursuant to the AFSCME constitution, ordered plaintiff reinstated as president of Local 375. The Court subsequently dismissed the preliminary injunction motion as moot.

Plaintiff asserts that he was suspended by the Executive Board not for the pretextual reasons asserted by the Board but rather because of his efforts to reform the union, including speaking to the media in a manner critical of DC 37 and the past leadership of Local 375. (Id.) Plaintiff asserts that his suspension violated his rights to freedom of speech and association, as guaranteed by federal labor law and the AFSCME constitution.

In their Answer to the Second Amended Complaint ("Answer and Counterclaims"), defendants assert four counterclaims against plaintiff. In substance, defendants allege that plaintiff is abusing his position as president, and is acting unlawfully and dictatorially in a manner that infringes on their rights to freedom of speech and association. Plaintiff asserts that these counterclaims are frivolous, and moves for their dismissal and for Rule 11 sanctions.


Plaintiff moves to dismiss defendants' counterclaims pursuant to Fed.R.Civ.P. 12(b)(6). On such a motion, the court is required to accept the material facts alleged in defendants' counterclaim as true and to construe all reasonable inferences in favor of defendants. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (citing Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994)); Meridien Int'l Bank Ltd. v. Government of the Republic of Liberia, 23 F.Supp.2d 439, 445 (S.D.N.Y.1998) (stating that, in deciding a 12(b)(6) motion to dismiss counterclaims, the "Court must accept all well-pleaded facts as true and construe the answer and counterclaims in the light most favorable to the nonmoving party"). Defendants' counterclaims should be dismissed only if the Court determines that "it appears beyond doubt that the [non-movants] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Gant, 69 F.3d at 673 (citing Allen v. West-Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957))). However, the Court is not required to uphold the validity of a claim supported only by conclusory allegations: "conclusory allegations need not be credited ... when they are belied by more specific allegations of the complaint." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.1995).

All four of defendants' counterclaims purport to assert claims pursuant to Section 101(a)(2) of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(2) (" § 101(a)(2)"). This section protects union members' freedom of speech and assembly, providing that

[e]very member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings....

29 U.S.C. § 411(a)(2). The purpose of this freedom of speech and assembly provision was explained by the Supreme Court in United Steelworkers v. Sadlowski, 457 U.S. 102, 102 S.Ct. 2339, 72 L.Ed.2d 707 (1982):

Congress adopted the freedom of speech and assembly provisions ... in order to promote union democracy. It recognized that democracy would be assured only if union members are free to discuss union policies and criticize the leadership without fear of reprisal.

Id. at 112, 102 S.Ct. 2339 (internal citations omitted). See also Salzhandler v. Caputo, 316 F.2d 445, 448-49 (2d Cir.1963) (stating that the purpose of sections 101(a)(1) and (2) was "to protect the rights of union members to discuss freely and criticize the management of their unions and the conduct of their officers ... [and] to prevent union officials from using their disciplinary powers to silence criticism and punish those who dare to question and complain").

An individual whose rights secured by § 101(a)(2) have been "infringed" may, pursuant to § 102 of the LMRDA, seek redress in federal district court, where the court may order "appropriate" relief. See 29 U.S.C. § 412 (" § 102"); Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers v. Crowley, 467 U.S. 526, 538, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984) ("Crowley") (citing § 102). Additionally, § 609 of the LMRDA provides that it is unlawful to "discipline" any union member for exercising rights guaranteed by the LMRDA. See 29 U.S.C. § 529. However, the legislative history of the LMRDA indicates that courts should act with caution when considering intervening in union disputes. "Exerting a countervailing force to Congress's desire to legislate union democracy was a more modern, but still well established, policy against government interference with the internal affairs of unions." Dolan v. Transport Workers Union of Am., 746 F.2d 733, 739 (11th Cir.1984).

In order to reconcile the competing interests of fostering union democracy and preserving union independence, to state a claim under § 101(a)(2) of the LMRDA, a claimant must demonstrate "a direct infringement of membership rights or a real threat to the democratic integrity of the union." Depperman v. Local 1199 Union, 1994 WL 225434 at 5, No. 91 Civ. 6696(JFK), (S.D.N.Y. May 25, 1994) (citing Franza v. Int'l Bhd. of Teamsters, Local 671, 869 F.2d 41, 48 (2d Cir.1989)). Although an action pursuant to § 609 will require a showing that the plaintiff has been "unlawfully disciplined," even in the absence of such discipline a claimant may be entitled to seek redress under section 102 for an "infringement" of LMRDA rights. Finnegan v. Leu, 456 U.S. 431, 439, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982). Additionally, although only speech as a member, not as an officer, is protected by § 101(a)(2), an attack on a union officer may be held to violate members' rights if the attack was part of a "scheme to suppress dissent" among union officials and the claimant can show by clear and convincing proof that the attack was part of "a series of oppressive acts by the union leadership that directly threaten the freedom of members to speak out." Cotter v. Owens, 753 F.2d 223, 229 (2d Cir.1985).

A. Defendants' First Counterclaim

In defendants' first counterclaim, they assert that plaintiff Commer, subsequent to his election, has

transformed Local 375 from a democracy in which the Executive Board, delegate body and various advisors and trustees councils all participated in shaping union policies, to a virtual monarchy in which all decisions are made solely by plaintiff Commer and the policy-making bodies of the board are...

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    ..."However, neither § 101(a)(2) nor the LMRDA as a whole were intended to eliminate all threats to union democracy." Commer v. Keller, 64 F. Supp. 2d 266, 272-73 (S.D.N.Y. 1999) (citation, alterations, and quotation marks omitted). "Congress did not intend Title I of the LMRDA to create a pan......
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