Johnson v. Kay

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: SWEET
• Citation: Johnson v. Kay, 742 F.Supp. 822 (S.D. N.Y. 1990)
• Decision Date: 13 July 1990
• Docket Number: No. 87 Civ. 6482 (RWS).,87 Civ. 6482 (RWS).
• Parties: Georgianna JOHNSON, et al., Plaintiffs, v. Edward KAY, et al., Defendants, Local 1199, Drug, Hospital and Health Care Employees Union, RWDSU, AFL-CIO, Intervenor.

742 F. Supp. 822

Georgianna JOHNSON, et al., Plaintiffs, v. Edward KAY, et al., Defendants Local 1199, Drug, Hospital and Health Care Employees Union, RWDSU, AFL-CIO, Intervenor.

No. 87 Civ. 6482 (RWS).

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

July 13, 1990.

Gary Sinawski, New York City, Bernstein & Lipsett, Washington, D.C. (Jules Bernstein, of counsel), for plaintiffs.

Gladstein, Reif & Meginniss, New York City (James Reif, of counsel), Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City (Victor Rabinowitz, of counsel), Sipser, Weinstock, Harper & Dorn, New York City (Richard Dorn, of counsel), O'Dwyer & Bernstein, New York City (Paul O'Dwyer, of counsel), for defendants.

OPINION

SWEET, District Judge.

Plaintiff Georgianna Johnson ("Johnson") and certain other members of Local 1199, Drug, Hospital and Health Care Employees Union RWDSU AFL-CIO (the "Union" or "1199") (collectively "Johnson") have moved for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The defendants Edward Kay and certain officers of the Union and members of the Executive Council of the Union (collectively the "Executive Council") have also moved for summary judgment dismissing this action. In addition, Johnson has moved for an award of counsel fees and the Executive Council has moved for sanctions. It is hoped that the resolution of the pending motions will terminate this bitter, intra-union dispute, the significance of which is now principally a matter of history.

Kay's motion for summary judgment is granted, Johnson's motion for partial summary judgment is denied, the action is dismissed, counsel fees are awarded, and sanctions are denied.

The Parties And Their Present Posture

Upon remand pursuant to the direction of the Court of Appeals, the Union was made a party to this proceeding and on August 9, 1989 independent counsel for the Union was appointed. The Union is the largest local in the United States, some 80,000 members strong. Its officers perform significant roles in the Union and in political life in the community and state elections. Its economic power is recognized and prized. Its recent history has been marked by intense internal conflict.

Georgianna Johnson, a member of 1199, started her career as a union official by running as a part of a slate in 1986 to overturn Doris Turner, the then president of 1199 in an election supervised by the Department of Labor. She was elected as were the individual defendants who became officers of 1199 and members of the Executive Council of the Union.

By the summer of 1987, Johnson and the Executive Council had developed different positions on a variety of issues affecting 1199. The Executive Council on September 4, 1987 proposed amending the Constitution which had been adopted in 1985, in part in Johnson's view, to restrict her powers. Johnson initiated this action on September 8 to preserve her rights in connection with the Executive Council's procedures.

As more fully described below, the Constitution was amended by referendum and thus adopted as amended on November 14, 1987. Johnson sought to amend the Constitution through the action of the General Delegate Assembly which was held on March 23, 1988, to restore certain of her powers. According to the Executive Council, these amendments were not properly before the Assembly and were not adopted.

In April 1989 in a regularly scheduled election of Union officers, Georgianna Johnson was defeated in her bid for reelection as Union President, by a vote of 19,747 for Dennis Rivera to 2,026 for Johnson. Defendant Kay was elected an Executive Vice-President as were defendants Marshall Garcia, Jarrett, Hughley, Abelson and Aida Garcia. Defendant Grant-Gutierrez was elected Vice President for Organizing. Defendants Yearwood, Doyle and Mayfield were each elected Area Vice-Presidents.

Each of the officers was sworn into office on or about May 1, 1989, by Lenore Miller, President of the Retail, Wholesale & Department Store Union, AFL-CIO, the international labor union with which Local 1199 is affiliated.

On June 14, 1989, Johnson moved from Brooklyn, New York to Philadelphia, Pennsylvania, where she now resides.

As President of 1199 Dennis Rivera does not wish to pursue any of the claims in this case which involve an assertion that one or more defendants acted to interfere with the President's exercise of presidential rights, powers or authority under the 1199 Constitution or otherwise acted unlawfully vis-a-vis the President as President.

Prior Proceedings

This action was commenced on September 7, 1987 and by order to show cause Johnson sought to enforce a referendum seeking to amend the Constitution of the Union.

By a decision dated October 8, 1987, the Union was directed to pay the expense of two mailings containing Johnson's objections to the proposal to amend. Johnson v. Kay, 671 F.Supp. 268 (S.D.N.Y.1987).

A Special Master, the Honorable Eric Schmertz, then Dean of Hofstra Law School, was appointed to supervise the referendum and discovery.

On October 26, 1987, the Special Master signed a Memorandum and Order summarizing the discussions of the parties and the agreements reached and "based upon the consent of all parties," directing that (a) the referendum be conducted by mail ballot under his supervision and (b) directing that the meeting scheduled by Johnson for November 5 be postponed and that no Delegate Assembly meeting be held prior to November 23, 1987. Later that same day, "based upon the parties' consent," this court adopted the Memorandum and Order of the Special Master "in its entirety."

The mail ballot referendum was conducted by the American Arbitration Association and completed on November 14, 1987.

Johnson sought a stay of the effectiveness of the newly adopted Constitution pending a ruling on a challenge by Johnson to the legality of its adoption which was denied by the Special Master on November 18. No review of that ruling was sought.

An evidentiary hearing on Johnson's application to nullify the result of the referendum was conducted by the Special Master over three days in April 1988. No review of that ruling was sought.

By service of a summons in December 1987, Johnson also sought to bring criminal charges against Kay for assault and harassment based upon the same alleged incident on October 8, 1987. The District Attorney of New York County assigned three Assistant District Attorneys to an investigation of Johnson's allegations. After completion of that investigation, the District Attorney moved to dismiss the charges against Kay for lack of evidence. That motion was granted on August 10, 1988. People v. Edward Kay, Docket No. 7N119658 (New York County).

On February 4, 1988 an order was entered granting preliminary injunctive relief to Johnson relating to the adjourned General Delegates Assembly and directing that all disputes relating to that meeting be heard by the Special Master.

On June 16, 1988 a motion by defendants to dismiss the complaint for lack of jurisdiction was denied and on October 25, the Court of Appeals affirmed the 1987 injunctions and directed that the Union be made a party and represented by special counsel.

The instant motions were initiated in January 1990 and adjourned by agreement of the parties. The summary judgment motions were heard and submitted on February 9, 1990 and the counsel fees and sanctions motions were heard and submitted on April 20, 1990.

The Absence Of Factual Dispute

Given the extensive litigation to date and the application of res judicata and estoppel, see Gelb v. Royal Globe, 798 F.2d 38, 44 (2d Cir.1986), certain facts sufficient to the determinations which follow have been established by the record to date and remain undisturbed by the evidence presented on these particular motions.

Standards For Summary Judgment

To grant summary judgment the court must determine that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court's responsibility is not to resolve disputed issues of fact, Donahue v. Windsor Lock Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987), but to determine whether there are any factual issues to be tried, while resolving ambiguities and drawing inferences against the moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (citing Adickes v. S.H. Kress & Co., Inc., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)). Summary judgment enables the court to dispose of meritless claims before becoming entrenched in a costly trial. Donahue, 834 F.2d at 58, (citing Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)).

Johnson Is Not Entitled To Partial Summary Judgment

Johnson seeks partial summary judgment on four claims:

a. Kay allegedly interfered with Johnson's efforts to communicate with Local 1199 members concerning her opposition to the proposal to amend the Union's 1985 Constitution and thereby violated the Union's Constitution and Sections 101(a)(1) and 101(a)(2) of the Labor-Management Reporting & Disclosure Act of 1959 ("LMRDA"), Title 29 U.S.C. §§ 411(a)(1) and 411(a)(2);

b. Kay allegedly interfered with Johnson's effort to call a meeting of the Union's General Delegate Assembly and thereby violated the Union's Constitution and LMRDA Sections 101(a)(1) and 101(a)(2);

c. Kay usurped Johnson's powers under the Union Constitution by adopting eight resolutions dated September 10, 1987; and

d. Kay caused the Union's headquarters to be closed on Saturday, September 19, 1987, and thereby interfered with Johnson's powers under the Local 1199 Constitution and her rights under LMRDA Section 101(a)(2).

Johnson also seeks reargument of the submission to Local 1199's membership of a package proposal to amend the Union's Constitution violated ...