Dzwonar v. McDevitt

• Decision Date: 12 August 2003
• Citation: 828 A.2d 893,177 N.J. 451
• Parties: Regina DZWONAR and Cynthia A. Burgess, Plaintiffs-Appellants, v. Robert McDEVITT, Local 54 of the Hotel Employees Restaurant Employees International Union, Defendants-Respondents, and Alan M. Cohen, Jabiel Santiago, Albert Siciliano and the Local 54 Executive Board, Defendants.
• Court: New Jersey Supreme Court

828 A.2d 893

177 N.J. 451

Regina DZWONAR and Cynthia A. Burgess, Plaintiffs-Appellants, v. Robert McDEVITT, Local 54 of the Hotel Employees Restaurant Employees International Union, Defendants-Respondents, and Alan M. Cohen, Jabiel Santiago, Albert Siciliano and the Local 54 Executive Board, Defendants.

Supreme Court of New Jersey.

Argued January 7, 2003.

Decided August 12, 2003.

Nelson C. Johnson, Hammonton, argued the cause for appellants (Johnson & DeMarco, attorneys; Mr. Johnson and Nancy A. Valentino, on the briefs).

William T. Josem argued the cause for respondents (Cleary & Josem, attorneys; Mr. Josem, Regina C. Hertzig, Philadelphia, and Cassie R. Ehrenberg, Ithaca, NY, on the briefs).

Alan Hyde, a member of the California bar, submitted a brief on behalf of amicus curiae The Association for Union Democracy, Inc. (Ronald Chen, attorney).

Raymond G. Heineman, Jr., West Orange, submitted a brief on behalf of amicus curiae New Jersey State AFL-CIO (Lynch Martin, attorneys). The opinion of the Court was delivered by ZAZZALI, J.

This appeal requires us to determine whether the jury's verdict in favor of plaintiff is sustainable under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Plaintiff, formerly a paid arbitration officer and an unpaid elected Executive Board member of Local 54 of the Hotel and Restaurant Employees International Union (Local 54 or the Union), alleges that the Union wrongfully discharged her from her paid position after she repeatedly voiced concerns regarding the Executive Board's failure to read its minutes at general membership meetings. Plaintiff claims that she believed that the Board's conduct denied Union members the right to participate, deliberate, and vote in Union matters as prescribed by federal labor law and the Union's internal bylaws.

The jury found that defendants had violated CEPA, but the Appellate Division set aside the verdict on the ground that federal labor law preempted plaintiff's CEPA claim. We conclude as a matter of law that plaintiff's asserted belief that defendants' conduct violated a law or public policy was not objectively reasonable. We therefore affirm the Appellate Division. Our conclusion that plaintiff has failed to present a CEPA claim makes it unnecessary to address the panel's holding that federal labor law preempts plaintiff's state law claim.

I.

Local 54 is a labor organization that represents approximately 15,000 employees in the hotel and restaurant industries in Atlantic City and elsewhere in the state. In accordance with the Union's bylaws and constitution, an Executive Board governs its day-to-day operations, which include approving expenditures, hiring and firing staff, holding Executive Board and general membership meetings, and handling other ministerial aspects of Union business. The Board consists of a President, Vice-President, Secretary-Treasurer, Recording Secretary, Chairman of the Trustees and four members elected from the rank and file. General membership meetings occur quarterly and Executive Board meetings occur at least monthly.

In August 1996, the general membership elected defendants Robert McDevitt, President, Al Cohen, Vice-President, and Jabiel Santiago, Secretary-Treasurer, to Local 54's Executive Board. Plaintiff Regina Dzwonar, a dues-paying member of the Union since 1983, also ran on McDevitt's slate and was elected to the unpaid position of Recording Secretary. According to the bylaws, the Recording Secretary is required to "keep records of all proceedings of the Executive Board and General Membership meetings under the direction of the Secretary-Treasurer." Later that year, plaintiff accepted a full-time paid position as an Arbitration Officer/Representative for the Union. In that capacity, she represented the Union and individual Union members in grievance and arbitration proceedings.

Shortly after the 1996 election, Dzwonar came into conflict with McDevitt and other members of the Executive Board over several of the Union's internal procedures and policies. Specifically, plaintiff claims that certain actions taken by the Executive Board, including the hiring of a business agent, the authorization of overtime pay to the Union Controller, the issuance of credit cards to certain Union officers, a loan arrangement with Local 54's parent International Union, and the prepayment of rent for a newly hired Union organizer, should have been but were not fully disclosed to the rank-and-file members for their approval pursuant to Local 54's bylaws. Plaintiff relied on Article III, Section (4)(a) & (b) and Article IX, Section 10(a) & (b) of Local 54's bylaws, which provide, in pertinent part:

Section 4.

(a) All applications for donations, and all proposed expenditures other than the routine operating expenses, shall when timely, first be referred to the Executive Board for their approval, which approval shall be subject to membership ratification by a majority vote of the membership present at a regular or special meeting.

(b) All wages, salaries and regular expense allowances paid to officers, employees, delegates and committees must be determined by a recommendation of their Executive Board and approval of a regular meeting of the Union.

Section 10.

(a) .... All actions of the Executive Board are subject to the approval of the membership meetings. There shall be no stay of execution from Executive Board actions. All expenditures of the Local Union shall be subject to the approval of the Executive Board. The Executive Board shall in general take up for discussion and decision all business of the Local Union. A majority of the Executive Board members present shall constitute a quorum.

(b) All applications for donations, and all proposed expenditures other than routine operating expenses shall first be referred to the board for their approval, which approval shall be subject to membership ratification by a majority vote of the membership present at a regular or special meetings. All wages, salaries and regular expense allowances paid to officers, employees, delegates and committees must be determined by a recommendation of their Executive Board and approval of a regular meeting of the Union.

At trial, plaintiff testified that although she did not believe that the Executive Board's actions were illegal, her objections to the Board's refusal to read its minutes at the general membership meetings reflected her concern that the Board was denying the rank-and-file members the right to participate, deliberate, and vote in Union matters as prescribed by the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C.A. §§ 401 to -531.

Plaintiff explained that she was "familiar with Local 54's By-laws and the LMRDA prior to attending the George Meaney [sic] Center for Labor Studies in May of 1997." While at the Meany Center, plaintiff overheard other union representatives state that "many union locals were reading their Executive Board minutes at general membership meetings in order that the members could deliberate and vote upon the actions being taken by the Board." Accordingly, plaintiff "pursued this issue" with the Board, "demanding that the general membership be informed of, and approve, all Executive Board actions." When the Board did not respond to plaintiff's concerns, plaintiff sent a letter in July of 1997 to the Board, stating:

There is some feedback from the rank and file that some members are suggesting that we are violating the By-Laws because we do not read the minutes of the E-Board meetings into the record at the G.M. meetings. We should at least offer them even if we ask for a motion to enter them as read. I really think we should address this A.S.A.P.

In September of 1997, McDevitt, with the approval of a majority of the Executive Board, discharged plaintiff from her position as an arbitration officer, allegedly for mishandling "internal documents," including the official minutes of the Executive Board meetings, and more generally for insubordination. Plaintiff's termination letter stated that "[r]ecent indiscretions and remarks regarding the current Administration and Officers have made effective functioning in your position impossible." It is undisputed that plaintiff provided several Union members with unauthorized access to Executive Board minutes.

Despite plaintiff's termination as an arbitration officer, she continued to perform her duties as Recording Secretary. At a general membership meeting in December of 1997, plaintiff objected to the Executive Board's refusal to read its minutes, while other members objected to its failure generally to provide the rank-and-file members with greater access to those minutes. For example, John Dzwonar, plaintiff's husband and member of Local 54, accused the Executive Board of "sanitizing" its minutes. Another Union member objected to the Board's refusal to allow plaintiff to tape record the Executive Board's meetings. Scott Shuster, a Union member and a political opponent of Robert McDevitt, testified that he attempted to raise several questions regarding financial expenditures approved by the Executive Board, but that McDevitt stifled his ability to speak freely. The minutes reveal that plaintiff informed McDevitt that Shuster had a right to speak freely at membership meetings.

Plaintiff filed suit under CEPA against defendants Robert McDevitt, Alan Cohen, Jabiel Santiago, Local 54, and Local 54's Executive Board, alleging that she was "terminated in retaliation for expressing [her] opinions and [her] efforts to keep [the] Union members informed of important Union business." She claimed that between October 1996 and September 1997, "[d]efendants repeatedly refused to inform the general membership ... of decisions and expenditures affecting the welfare of the Union members," and that her termination as an arbitration representative was in retaliation for expressing a "reasonable belief" that the Executive Board's...