Mandaglio v. UNITED BROTH. OF CARP. & JOIN. OF AM.

• Decision Date: 23 November 1983
• Docket Number: No. 81 CV 2521 (ERN).,81 CV 2521 (ERN).
• Parties: Dominick MANDAGLIO and Charles Ferrera, Plaintiffs, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA (GENERAL EXECUTIVE BOARD), New York City District Council of United Brotherhood of Carpenters and Joiners (Executive Board), Local Union 385 of United Brotherhood of Carpenters and Joiners of America, Theodore Maritas, Joseph Lia, Frank Calciano, Marcello Svedese, Joseph Mommanna, Clinton Zeh, and Joseph LoCurto, Jr., Defendants.
• Court: U.S. District Court — Eastern District of New York

575 F. Supp. 646

Dominick MANDAGLIO and Charles Ferrera, Plaintiffs, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA (GENERAL EXECUTIVE BOARD), New York City District Council of United Brotherhood of Carpenters and Joiners (Executive Board), Local Union 385 of United Brotherhood of Carpenters and Joiners of America, Theodore Maritas, Joseph Lia, Frank Calciano, Marcello Svedese, Joseph Mommanna, Clinton Zeh, and Joseph LoCurto, Jr., Defendants.

No. 81 CV 2521 (ERN).

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

November 23, 1983.

Martin S. Streit, New York City, for plaintiffs.

Richard H. Markowitz, New York City, for United Broth. of Carpenters and Joiners of America and Joseph Lia.

Bart & Lew, New York City, for other defendants.

MEMORANDUM AND ORDER

NEAHER, District Judge.

Plaintiffs are former members of the United Brotherhood of Joiners and Carpenters of America ("international union"), located in Washington, D.C., the New York City District Council of the international union ("district council"), and Local 385, both located in New York City. Until the acts complained of, plaintiff Mandaglio was the elected president and business representative of Local 385 and Ferrara was its financial secretary. The basic wrong of which they complain is that they were removed from their positions and membership in the above organizations in violation of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§ 411(a) and 529, pursuant to which this Court's subject matter jurisdiction has been invoked. See id., 29 U.S.C. §§ 412, 529.

The complaint raises five causes of action all premised upon an alleged conspiracy between and among the defendants which succeeded in its alleged ultimate goal of removing plaintiffs from the union. The case is before the Court upon defendants' motion for summary judgment upon all counts.

I.

Undoubtedly cognizant of the rule in this circuit that 29 U.S.C. § 411(a)(5) does not confer jurisdiction to review internal union removals from office, Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir.1973),¹ plaintiffs have merged separate but related events into one alleged conspiracy in order to sustain the Court's jurisdiction. The record reveals that each plaintiff's allegedly wrongful removal from office occurred upon an investigation separate and apart from the charges and proceedings that led to their expulsions from the international union. Consequently, the Court must disengage what the plaintiffs have welded together.

A review of the pleadings reveals the following: Count I, a pendent State claim for defamation; Count II, dismissed, note 1, supra; Count III, a conspiracy to silence Mandaglio for having refused bribes and "hush" money; Count IV, a barely comprehensible conspiracy claim that reiterates most of Count I; and Count V, a conspiracy claim which repeats most of Counts I and III. The overlap of charges and defendants does not dissuade the Court from reviewing the matter according to the elements of the claims as created by the statute authorizing jurisdiction. In short, many of the allegations of the pleadings, as amplified by the affidavits and exhibits, are not relevant to what plaintiffs must demonstrate to obtain a judgment.

II.

29 U.S.C. § 411(a)(5) provides:

"No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing."

Mandaglio has submitted a lengthy affidavit in which he details activities of Theodore Maritas, the former district council president, and Joseph Lia, Maritas' alleged henchman. Maritas, acting through defendant LoCurto, a business agent, had asked both plaintiffs to accept money to overlook the use of non-union labor on construction projects in Local 385's territories in Manhattan and the Bronx. Both plaintiffs refused. During this period of 1977 and 1978, Mandaglio had other ongoing disputes with Maritas, whom he claims was eventually indicted in the Eastern District of New York for labor racketeering and extortion. Mandaglio was also assaulted and threatened; once by Maritas, who, on December 5, 1978, "took over" Local 385 by letter. Pursuant to the letter, LoCurto occupied the union office and informed those who called that Mandaglio had stolen and misappropriated the local's funds.²

Numerous communications followed between Mandaglio, the international union, and Local 385's former attorney. They resulted in plaintiffs' suspensions from office and the imposition of a trusteeship and appointment of defendant Lia as supervising trustee on January 2, 1979. See generally Buffalow v. Bull, 619 S.W.2d 913 (Mo. App.1981). Mandaglio claims the hearing held January 15, 1979, which resulted in continuation of the trusteeship,³ was permeated by "false and fabricated" testimony from defendants Mommanna, Svedese, Calciano, and LoCurto and by the absence of any documentary evidence to support allegations of misappropriations of funds. Thereafter, Lia defamed plaintiffs in Local 385 newsletters to the membership and rewarded each of his patsies with patronage. Mommanna became a shop steward, LoCurto became a business agent, Svedese, an alien unable to speak or understand English nor drive and in arrears in dues, was appointed financial secretary and business agent, assertedly contrary to the union constitution and bylaws, and Calciano, once disciplined for using his son's social security number to defraud the local's health and pension funds, became a business agent and assumed the local's presidency, again all contrary to the union's constitution and bylaws.

His stooges in place, Lia filed formal charges against plaintiffs in June 1979 and set trial for March 1980. Despite Mandaglio's pleas, the district council president, William Konyha, would not postpone the local's May 1980 meeting for nominations for the June 1980 election until after the trial committee rendered its verdict.

Mandaglio challenges the propriety of the hearing held March 17-21, 1980, alleging that Svedese had told a fellow local member, Pat Mirenda, that the outcome, a six-year suspension of both plaintiffs, was prearranged. Assertedly the trial committee refused Mirenda's testimony.⁴ The committee in fact recommended expelling Mandaglio and barring Ferrara from office for five years.

Mandaglio adds that an FBI agent, Paul Hays, had informed him of the existence of a "contract" on his life and that both plaintiffs submitted documents, minutes of union meetings and exhibits, all of which proved their innocence of any wrongdoing. Further, he charges that subsequent levels of internal union review merely rubber stamped the perjury and injustice that had been committed at the hearing.

Mandaglio's allegations, if true, depict a corruption-infested union attempting to wrest the only two honest men in its ranks of their official positions of power and influence. However, plaintiffs' asserted ability, through their testimony and other evidence which was before the trial committee, to prove a plot to get them out of the way does not end the Court's inquiry. Even if there were a conspiracy as alleged, plaintiffs would still have to show that they were not served with written specific charges or that they were not given a reasonable opportunity to prepare their defenses, or that they were deprived of a full and fair hearing upon the charges which led to their expulsion. Undoubtedly, proof requiring exculpation as a matter of law would cast serious doubts upon the propriety of the hearing; however, no such proof is forthcoming, and plaintiffs' challenges to the asserted irregularities, even if proved, would not entitle them to a judgment.

A letter of October 14, 1978 from defendant Zeh to the international's president, William Sidell, had precipitated the international's investigation of local 385. In a later deposition Zeh testified that he had neither written, signed, nor authorized the letter. He thought its author was Louie Fiori, another local 385 member. The letter details but three alleged abuses, the mere tip of an iceberg. Mandaglio was found guilty of 21 of 37 charges and Ferrara, 14 of 14 charges.⁵ On appeal the General Executive Board reduced the number of guilty charges to 12 and 7 respectively, which hardly constitutes a rubber stamp.

The General Executive Board sustained the trial committee's findings of guilty upon the following charges (Mandaglio):

1. From January, 1976 to January 3, 1979 you failed to meet your obligation under the General Constitution and Laws as President of Local Union 385.

3. You appointed yourself as Business Agent Pro-temp (sic) over objections of members and failed to hold an election for that office.

7. You imposed a five (5) cent per hour dues check-off without approval from the General Office as per the General Constitution and Laws on September 20, 1977.

12. On January 10, 1978 you promised to discontinue the local assessment as soon as the District Council assessments were approved—you would terminate the other local assessment, yet you failed to do so.

15. On June 13, 1978 you read the resignation of Louis Fiori and appointed yourself as delegate to the District Council and appointed Charles Ferrara as Financial Secretary on June 7, 1978 without an election.

16. You failed to notify the members of a special election for delegates to the General Convention.

17. You fired Trustee Stephen Thornton illegally and appointed Frank Leanza as pro-temp (sic); also you appointed Douglas Mandaglio as Conductor who was not qualified to hold office. You appointed Patrick Mirenda as Warden when the minutes do not show a vacancy in that office by Frank Leanza.

18. You had three (3) cars leased in the name of Local Union 385 without proper approval of the

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