INTERN. LONGSHOREMEN'S v. VA. INTERN. TERMINALS

• Decision Date: 04 June 1996
• Docket Number: 2:95cv996.,Action No. 2:95cv956
• Citation: 928 F. Supp. 655
• Parties: INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Container Maintenance Refrigeration Repair Employees Local 1970, AFL-CIO, Plaintiffs, v. VIRGINIA INTERNATIONAL TERMINALS, INC., Hampton Roads Shipping Association, Ceres Marine Terminals, Inc., and Edward L. Brown, Sr., Defendants. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Steamship Clerks Local 1624, AFL-CIO, Plaintiffs, v. HAMPTON ROADS SHIPPING ASSOCIATION, and Edward L. Brown, Sr., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

928 F. Supp. 655

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Container Maintenance Refrigeration Repair Employees Local 1970, AFL-CIO, Plaintiffs, v. VIRGINIA INTERNATIONAL TERMINALS, INC., Hampton Roads Shipping Association, Ceres Marine Terminals, Inc., and Edward L. Brown, Sr., Defendants.

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Steamship Clerks Local 1624, AFL-CIO, Plaintiffs, v. HAMPTON ROADS SHIPPING ASSOCIATION, and Edward L. Brown, Sr., Defendants.

Action Nos. 2:95cv956, 2:95cv996.

United States District Court, E.D. Virginia, Norfolk Division.

June 4, 1996.

Thomas F. Hennessy, III, SuAnne L. Hardee, Hardee & Hennessy, P.C., Chesapeake, VA, for plaintiffs.

Thomas M. Lucas, Vandeventer, Black, Meredith & Martin, Norfolk, VA, for defendants Virginia International Terminals, Inc., Hampton Roads Shipping Association, and Ceres Marine Terminals, Inc.

Larry W. Shelton, Goldblatt, Lipken & Cohn, P.C., Norfolk, VA, Kevin Marrinan, Gleason & Matthews, New York City, for defendant Edward L. Brown, Sr.

MEMORANDUM OPINION AND ORDER

REBECCA BEACH SMITH, District Judge.

These two cases are before the court for resolution of defendant Edward L. Brown's motions for summary judgment. For the reasons which follow, the motions are GRANTED.

I. Factual and Procedural History

Both of these cases involve yet another labor dispute between plaintiffs, Local 1624 and Local 1970 of the International Longshoremen's Association ("ILA"), their employers, and one international union official.¹ This time, Local 1624 and Local 1970 are aggrieved by the allegedly improper procedure by which the ILA adopted an apprentice program. The apprentice program altered the terms of the Locals' collective bargaining agreements ("CBAs") by permitting employers to pay lower wages and by denying holiday pay to union members with relatively few years on the job, ostensibly as a result of their need for training. Both Local 1624 and Local 1970 object to the manner in which the new program was adopted, and both claim injury to their members as a result of its implementation. This time, the Locals sued separately. Local 1624 brought its claims against ILA International Vice President Edward L. Brown, and the Hampton Roads Shipping Association ("HRSA") (case no. 2:95cv996). Local 1970 sued Brown, the HRSA and two employers, Ceres Marine Terminals Inc. ("Ceres") and Virginia International Terminals ("VIT") (case no. 2:95cv956).

Among the various claims asserted, the two Locals each sued Brown under section 501(a) of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 501(a). The Locals assert that Brown breached the fiduciary duty imposed on him by the LMRDA, when he approved the apprentice program in violation of the procedures outlined in the international union's constitution.

Both Locals allege similar conduct on the part of Brown. Principally, they contend that he failed to obtain the written approval of international union officers before endorsing the apprentice program, and that he failed to conduct a proper vote of the aggregate membership of the covered locals. These actions by Brown are alleged to violate Article 23 of the ILA Constitution. In the case of Local 1970, Brown is also alleged to have deliberately misled the Local about its members' participation in the program, and refused to process grievances concerning the matter. All of this conduct is alleged to violate the fiduciary duty imposed on Brown, as an international union officer, by section 501(a) of the LMRDA.

Brown moved to dismiss both actions. On April 16, 1996, the court heard oral argument on the motions to dismiss. At the hearing, the parties were instructed to file supporting affidavits on whether the plaintiffs had properly exhausted internal remedies. Because all the parties submitted additional materials,² the court now construes and decides Brown's motions to dismiss as motions for summary judgment under Rule 56. See Fed.R.Civ.P. 12(b) (If "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.").

II. Summary Judgment Standard of Review

Summary judgment is appropriate only when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir.1985). Once a party has properly filed evidence supporting the motion for summary judgment, the nonmoving party may not rest upon mere allegations in the pleadings, but must instead set forth specific facts illustrating genuine issues for trial. Celotex Corp., 477 U.S. at 322-24, 106 S.Ct. at 2552-53. Such facts must be presented in the form of exhibits and sworn affidavits. "The plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552.

III. Analysis

Brown's motions are factually and legally similar to a motion decided by the court in another case involving the same parties. In that earlier case, Local 1970 and Local 1624 jointly sued Brown, the ILA, and several of their employers because of their allegedly improper implementation of a flex-time modification to the Locals' CBAs. International Longshoremen's Ass'n, Steamship Clerks Local 1624 AFL-CIO v. Virginia Int'l Terminals, 914 F.Supp. 1335 (E.D.Va.1996) (hereinafter "the flex-time case").

Brown also moved to dismiss that action, arguing that the local unions were not proper plaintiffs in an action under section 501 of the LMRDA, and that the statute was not broad enough to reach the conduct alleged in the complaint. The court denied that motion to dismiss, ruling that the plaintiffs were properly before the court, and the conduct alleged, if proven, would be sufficient to state a claim under section 501. Id. at 1342.

The main difference between these motions and the one previously decided is the issue of exhaustion of internal remedies before a local union brings suit under section 501(a) of the LMRDA. In the flex-time case, the exhaustion issue was not raised, presumably because the dispute had already been appealed to the Contract Board, a joint arbitration panel composed of both local and international union members as well as employer representatives. The Contract Board is the acknowledged arbitral body set up by the parties to resolve disputes related to the interpretation of changes in their CBAs. In this case, Brown alleges that neither Local has made any internal complaint to the international union itself, and the precise question presented is whether the Locals are required to do so before bringing this action.

Brown first reiterates his argument from the flex-time case that an internal demand for relief is required by the provisions of 501(b) of the LMRDA. Section 501(b) requires that before bringing suit to enforce the duties imposed by section 501(a), individual union members must make a demand on the union to sue or recover damages, or an accounting or other appropriate relief, before bringing the action. In addition, individual plaintiffs must obtain leave of court upon a showing of "good cause" to bring the suit. 29 U.S.C. § 501(b).

This court held in the flex-time case that these restrictions did not apply to suits by the local union itself, because jurisdiction for such suits derived from 28 U.S.C. § 1337, rather than section 501(b). Local 1624, 914 F.Supp. at 1339-40; see Operative Plasterers & Cement Masons v. Benjamin, 776 F.Supp. 1360, 1363 (N.D.Ind.1991); Teamsters, Chauffeurs, Warehousemen & Helpers, Local 764 v. Greenawalt, 880 F.Supp. 1076, 1080-81 (M.D.Pa.1995). Citing the Benjamin opinion, this court wrote, "§ 501(b) is properly read as both creating a cause of action for individual members, and limiting federal court jurisdiction over suits by individual members. Hence nothing in the provisions of § 501(b) affects a union's right to sue in federal court under § 501(a)." Local 1624, 914 F.Supp. at 1340.

Brown raises an additional argument in support of the plaintiffs' duty to exhaust internal remedies. First, he cites the Supreme Court's decision in Clayton v. United Auto, Aerospace, and Agricultural Implement Workers, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981). In Clayton, the Supreme Court described a three-factor test for determining when exhaustion of internal remedies would be excused in litigation against the union or one of its officers. In exercising its discretion to excuse exhaustion, Clayton instructs the court to consider 1) whether union officials are so hostile to the claim that a fair hearing would be impossible, 2) whether the internal remedies would be inadequate, and 3) whether exhaustion of internal procedures would unreasonably delay judicial resolution of the merits of the claim. Id. at 689, 101 S.Ct. at 2095.

Brown contends that Clayton requires exhaustion of internal union remedies, unless one of these three criteria justifies non-exhaustion, and that it is the plaintiffs' burden to allege facts which establish that intra-union remedies are inadequate. Plaintiffs argue that Clayton involved fair representation litigation under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. Some courts have specifically held that a Clayton-type analysis does not apply to suits involving claims for breach of a union officer's fiduciary duty under section 501 of the LMRDA. See, e.g., Cowger v. Rohrbach, 868...