Kirk v. Transport Workers Union of America, AFL-CIO

• Citation: 934 F. Supp. 775
• Decision Date: 22 December 1995
• Docket Number: Civil Action No. H-94-0181.
• Parties: Leonard KIRK, et al., Plaintiffs, v. TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

934 F. Supp. 775

Leonard KIRK, et al., Plaintiffs, v. TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, et al., Defendants.

Civil Action No. H-94-0181.

United States District Court, S.D. Texas, Houston Division.

December 22, 1995.

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Henry Clay Moore, Houston, TX, for Leonard Kirk, David Gollinger, John Nmi Parker, Sammie Davis, Wayne Jackson.

Eric H. Nelson, Houston, TX, for Transport Workers Union of America, AFL-CIO and Local 260, Frank McCann, John Bland, Billy Prince, Harry Winters, Charleston Campbell.

MEMORANDUM AND ORDER

ATLAS, District Judge.

Pending before the Court are Defendants' Motion for Summary Judgment (Doc. # 40) and Plaintiffs' Motion for Interlocutory Summary Judgment (Doc. # 41). The Court has considered these motions together with the applicable authorities and all opposition filed and finds that (1) Defendants' Motion is GRANTED IN PART AND DENIED IN PART; and (2) Plaintiffs' Motion is DENIED.

I. Factual Background

Plaintiffs Leonard Kirk, David Gollinger, John Parker, Sammie Davis and Wayne Jackson are members and former officers of the Transport Workers Union of America, AFL-CIO, and Local 260 ("Local Union"). Plaintiffs have sued the Transport Workers Union of America, AFL-CIO ("International Union"), the Local Union, and five union representatives affiliated with the administratorship imposed by the International Union in 1992: Frank McCann, Administrator for the Local Union; John Bland, Assistant Administrator; and Charleston Campbell, William Prince and Harry Winters, staff/grievance representatives for the Local Union during the period of the administratorship. Plaintiffs allege violations of the Local Union Bylaws, the International Constitution and the Labor-Management Reporting & Disclosure Act, 29 U.S.C. § 401 et seq. ("LMRDA"); breach of the Union's duty of fair representation; fraud; conspiracy; defamation of character; slander; libel; retaliation; suppression of freedom of expression by a labor union; unfair labor practice; breach of contract and breach of a collective bargaining agreement; and tortious interference with contract rights.

On or about October 16, 1992, the International Union imposed an administratorship on the Local Union in accordance with its Constitution, based upon allegations of improper conduct by the Local Union's President, David Carrington, and Secretary-Treasurer, Robert Moreland. An International Vice President based in New York, Frank McCann was appointed Administrator of the Local Union. Because McCann appears to have remained in New York during the tenure of the administratorship, John Bland, the Assistant Administrator, oversaw the union's day to day affairs in Houston. Campbell, Prince and Winters also assisted McCann in this regard.

After imposition of the administratorship (also known as a trusteeship or receivership), various factions within the Local Union began vying for leadership, and each publicized its views on union affairs.

Plaintiffs represented a faction which became known as "New Direction." The individually named Defendants represented the faction loyal to the International and the Administration. The former Local Union president, David Carrington, and his supporters represented the third faction.

Plaintiffs published various newsletters critical of the receivership and of the collective bargaining agreement which McCann negotiated with Plaintiffs' employer, the Metropolitan Transit Authority ("Metro"), targeting alleged irregularities in the contract ratification election held by mail-in ballot in late 1992-early 1993.

In October 1993, Defendants published a newsletter entitled "Enough is Enough," which Plaintiffs allege contained "false, scandalous, slanderous and defamatory material regarding Plaintiffs' previous works as union officers and representatives." Plaintiffs' Second Amended Complaint, at 6. Plaintiffs appear to complain of another allegedly libelous publication in their Reply to Defendants' Supplemental Motion for Summary Judgment. In August 1993, prior to the publication of the "Enough is Enough" Newsletter, a newsletter entitled "Send New Direction on Out the Door!" ("Out the Door" newsletter) was distributed to the Local membership.¹ In apparent reference to Plaintiffs, the "Out the Door" newsletter declared that "those people who have hurt the cause and members are having to answer for their crimes.... These individuals, as past officers of this Local, are the same pillaging individuals that the Texas Employment Commission is telling to go home."

Within six months of publication of the "Enough is Enough" newsletter, the Local Union was removed from receivership and an election was held for new officers. Plaintiffs allege that they each ran for an executive office or seat on the executive board. All but one were defeated. Plaintiffs further allege that, as a result of publication of the "Enough is Enough" newsletter, Plaintiffs "lost numerous votes in the Union election due to lack of information² and misinformation given to the Local 260 membership by the Defendants." Plaintiffs' Second Amended Complaint, at 14.

Plaintiffs contend that they suffered the loss of the good will and respect of the membership of the Local and will not have the opportunity to run for election to executive office or the executive board until April 1997.³ Because injunctive relief as well as damages are available under Title I of the LMRDA,⁴ it is not clear whether Plaintiffs are seeking to amend their complaint to seek only damages from Defendants. The Court relies on Plaintiffs' most recent statements that they "are not moving to invalidate an election" as a judicial admission that Plaintiffs are no longer seeking the equitable remedy of a special election.

II. Summary Judgment Standard

In deciding a motion for summary judgment, the Court must determine whether "the pleadings, depositions, and answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); Bozé v. Branstetter, 912 F.2d 801, 804 (5th Cir.1990). The facts are to be reviewed with all inferences drawn in favor of the party opposing the motion. Bozé, 912 F.2d at 804, citing Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986).

The party moving for summary judgment has the initial burden of demonstrating the absence of a material fact issue; however, the movant need not negate the elements of the nonmovant's case. Little, 37 F.3d at 1075. For issues on which the nonmovant bears the burden of proof at trial, "the movant may merely point to the absence of evidence and thereby shift to the nonmovant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial." Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir.1995), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The nonmovant must then identify specific evidence in the summary judgment record which demonstrates a material fact issue concerning the essential elements of its case. Douglass v. United Serv. Auto. Ass'n, 65 F.3d 452, 459 (5th Cir.1995); Little, 37 F.3d at 1075; Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). The nonmovant's burden may not be satisfied by conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a scintilla of evidence. Douglass, 65 F.3d at 459; Little, 37 F.3d at 1075. Furthermore, in the absence of any proof, the court will not assume that the nonmovant could or would prove the necessary facts. Little, 37 F.3d at 1075, citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188-89, 111 L.Ed.2d 695 (1990).

III. Legal Analysis

1. "Out the Door" Newsletter Claims

Plaintiffs allege that Defendants authored the "Out the Door" newsletter. The parties' summary judgment evidence fails to show a genuine issue of material fact as to this newsletter's authorship, despite voluminous submissions.

The affidavit of Archie Thomas (now deceased), submitted to an internal union committee established to investigate Plaintiffs' charges against Defendant John Bland, asserts that Archie Thomas authored the "Out the Door" newsletter; that the newsletter was not published at the request or behest of John Bland; that John Bland did not provide union stationery to publish the newsletter; that the newsletter was not sanctioned or supported by union officials; that no official seal, nor union officials' phone number or address was contained in the newsletter; and that the union emblem appearing at the top of the newsletter was taken from a card with Thomas's name on it. The supplemental affidavits of John Bland, Charleston Campbell, Billy Prince and Harry Winters aver that none of these defendants prepared or distributed the "Out the Door" newsletter.

The summary judgment record reveals that the "Out the Door" and "Enough is Enough" newsletters are also visibly different in appearance. For instance, on the "Enough is Enough" newsletter, which Defendants admittedly were involved in preparing, there is a "Transport Workers Union Local 260" logo at the top of page one, the Local's address and phone number are printed across the top and bottom of the newsletter, and the final segment of the newsletter is signed, "John W. Bland, International Representative." The "Out the Door" newsletter in contrast contains a poor reproduction of the union emblem, and neither the union logo nor the Local Union's address or phone number is...