Piacente v. Int'l Union of Bricklayers & Allied Craftworkers
| Decision Date | 30 September 2015 |
| Docket Number | 11 Civ. 1458 (ER) |
| Parties | TONY D. PIACENTE, Plaintiff, v. INTERNATIONAL UNION OF BRICKLAYERS & ALLIED CRAFTWORKERS, INTERNATIONAL UNION OF BRICKLAYERS & ALLIED CRAFTWORKERS LOCAL #5 NEW YORK, MICHAEL J. CLIFFORD, individually and in his capacities as a member of INTERNATIONAL UNION OF BRICKLAYERS & ALLIED CRAFTWORKERS LOCAL #5 NEW YORK and as a Trustee of the several funds of Local 5 and MANUEL VALENTE, individually and in his capacities as a member of the INTERNATIONAL UNION OF BRICKLAYERS & ALLIED CRAFTWORKERS LOCAL #5 NEW YORK and as a trustee of the several funds of Local 5, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Tony D. Piacente ("Piacente," "Plaintiff," or "Counterclaim Defendant") brings this action against Defendants under the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 411 et seq. Defendant International Union of Bricklayers and Allied Craftworkers moves for partial summary judgment with respect to Plaintiff's sole claim for violation of Section 101(a)(5) of the LMRDA, 29 U.S.C. § 411(a)(5), relating to disciplinary charges that were the subject of a union disciplinary hearing in January 2010. Doc. 31. Defendants International Union of Bricklayers and Allied Craftworkers Local 5 New York, Michael J. Clifford and Manuel Valente also move for partial summary judgment on the solecount against them as well as with respect to their counterclaims against Plaintiff. Doc. 27. For the reasons set forth below, Defendants' motions are GRANTED in part and DENIED in part.
At base, this case involves allegations that a former president of local labor union, Piacente, while in office, engaged in a small number of petty offenses, some of which allegedly injured the union and its affiliated funds financially to a relatively modest extent, and some of which amounted to sloppy or misguided accounting practices that did not injure the union or the funds financially, but that constituted violations of Piacente's fiduciary responsibilities to those entities. Specifically, the financial improprieties concern: (1) Piacente having allegedly purchased a computer worth approximately $500 for personal use with union funds; and (2) Piacente having taken money from the local union's two soda vending machines in an indeterminate amount. Piacente specifically denies both allegations of financial impropriety.
The accounting irregularities concern: (1) Piacente having improperly authorized an affiliated fund to pay a union member's salary for one week while he underwent union training; (2) Piacente improperly signing the name of another union official on approximately 25 checks for union expenditures; and (3) Piacente failing to adequately account for the proceeds of the union's soda vending machines. Piacente is also alleged to have refused to return certain union documents after he was no longer president.
Piacente admits to having authorized the fund to pay for the member's union training but asserts that it was done with the knowledge of the leadership of the fund and the union and that, in any event, the member was entitled to be paid for his time in training. Piacente also admits to signing another official's name on approximately 25 checks, but asserts that it was done with that official's consent and that such a practice was "common" in the union because of convenience. In any event, there is no allegation that the 25 checks were used for an improper purpose. Finally, Piacente asserts that he adequately accounted for the vending machine proceeds.
Aggrieved that he was made to respond to such allegedly "bogus" charges, Piacente asserts that the charges against him were the result of personal animus against him by the defendants and brought suit alleging that the manner in which the charges were prosecuted violated his due process rights. Apparently aggrieved that Piacente sued them, three defendants brought counterclaims against him for breach of fiduciary duty in violation of federal law and state law, conversion and replevin.
Defendant International Union of Bricklayers and Allied Craftworkers ("IU") is a labor organization within the meaning of Section 102(I) of the LMRDA, 29 U.S.C. § 402(I). Pl.'s Resp. 56.1 to IU ¶ 2. Defendant International Union of Bricklayers and Allied Craftworkers Local 5 New York ("Local 5") is also a labor organization under the LMRDA. Id. ¶ 1. The Bricklayers and Allied Craftworkers Local 5 New York Apprentice Training and Journeymen Upgrading Fund (the "Fund")2 is a collectively bargained apprenticeship fund of Local 5. Id. ¶ 4.
Plaintiff Tony Piacente has been a member of Local 5 since August 1983. Id. ¶ 5. Plaintiff served as the President of Local 5 from July 9, 2001 through August 31, 2008. Id. ¶ 6. As an officer of Local 5, Plaintiff admits that he was also a fiduciary of Local 5. Id. ¶ 8. Until August 31, 2008, Plaintiff served as a Trustee on the Fund's Board of Trustees, "had discretion with respect to the operation of the Fund, with others had control over Fund assets, and was a fiduciary with respect to the Fund within the meaning of the Employment Retirement Insurance Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461." Id. ¶ 9.
Defendant Michael J. Clifford ("Clifford") has at all times relevant to this lawsuit been a member, officer and employee of Local 5. Clifford became Local 5's Secretary-Treasurer in late 2008 and has served on the Fund's Board of Trustees since approximately August 2008. Id. ¶ 17. Defendant Manuel Valente ("Valente") has at all times relevant to this suit been a member, employee and officer of Local 5. Valente has served as President of Local 5 since October 14, 2008, and at all times relevant to this suit has also been a Trustee of the Fund. Id. ¶¶ 7, 11; Clifford Decl. ¶ 7.
Plaintiff was one of the signatories of the Fund's Trust Agreement ("Trust Agreement"), dated May 1, 2007. Pl.'s Resp. 56.1 to IU ¶ 10. Pursuant to Article III, Section 7 of the Trust Agreement:
[A]ll checks, drafts, vouchers, or other withdrawals of funds from the accounts or account of the Trust Estate shall be signed by one Employer Trustee and one Union Trustee. The Trustees may designate, in writing, two or more Trustees to sign said withdrawals provided that any two such designated Trustees who actually sign checks are not both members of the Employers or Union group. TheTrustees may by resolution authorize the Fund Manager and/or Agent or other Employees of the Fund to be the sole signatory on checks drawn on an office account.
Clifford Decl., Ex. O ("Trust Agreement") (emphasis added).
William Simmons ("Simmons"), a member of Local 5 and a personal friend of Plaintiff, was sent by Plaintiff to attend the IU New Leaders Conference in Silver Spring, Maryland during the week ending April 25, 2008. Pl.'s Resp. 56.1 to Local 5 ¶ 12; Clifford Aff., Ex. G (Plaintiff's Response to Defendants' Notice to Admit ("Notice to Admit")), Q. 32. Plaintiff had previously advised the Local 5 Management Committee that he would be sending Simmons to the New Leaders Conference. The purpose of the New Leaders Program, which is for new Local 5 leaders, is to equip new union officers and field representatives with the necessary skills to perform their jobs, and to provide a full understanding of the resources available through the IU. Id. ¶ 13.3 Plaintiff did not ask the Fund Trustees for approval to pay Simmons for the time he attended the New Leaders Conference. Id. ¶ 14.
At some point afterwards, Plaintiff directed Brian Haley ("Haley"), then supervisor of renovations of the Fund headquarters, to prepare a timesheet for Simmons reflecting 40 "regularhours" completed for the week ending April 25, 2008 and to submit the timesheet to the Fund administrator for payment. Id. ¶¶ 11, 15; Clifford Aff, Ex. M. However, Simmons did not perform any renovation work at the Fund headquarters that week as he had been at the New Leaders Conference. Id. ¶ 12.
On May 1, 2008, Plaintiff signed a payroll check for Simmons from a Fund account for $957.53 for the pay period April 19 - April 25, 2008, when Simmons was out of town at the IU New Leaders Conference (the "Simmons Check"). Id. ¶ 16; Notice to Admit, Q. 36; Clifford Aff., Ex. M. The signatures on the Simmons Check are of "Tony Piacente" and "Manny Valente;" however, Plaintiff admits that in addition to signing his own name, he also signed for "Manny Valente." Pl.'s Resp. 56.1 to Local 5 ¶ 17.
Plaintiff signed twenty-five (25) additional checks from the Fund account with his own name and with a second signature reading "Manny Valente" (the "25 Checks"). Id. ¶ 18. There is no dispute that Piacente, and not Valente, signed Valente's name on these 25 checks. Id. ¶ 19.
Local 5 owned soda vending machines at its offices in Poughkeepsie and Newburgh, New York. Id. ¶ 29. Defendants allege that Plaintiff removed cash from each machine, and rely on Plaintiff's deposition testimony. Clifford Decl., Ex. L (Piacente EBT) 70. Plaintiff admits that he took cash from the machines but alleges that he only removed cash from the Poughkeepsie machine, and that this money was used solely to purchase soda to restock the machine. Pl.'s 56.1 2 ¶ 29 (citing P's EBT 70). Plaintiff further alleges that others also had access to the machine. Id. (citing EBT 73). Plaintiff claims that there were two keys to themachine, Clifford Decl., Ex. G, Q. 46, and concedes that he did not keep track of the amount of money that he removed from the machine. Pl.'s 56.1 2 ¶ 31
During Plaintiff's tenure, some of Local 5 and its related ERISA Trust Funds records were delivered directly to Plaintiff's home. Pl.'s Resp. 56.1 to Local 5 ¶ 32. By letter sent on August 22, 2008, Local 5 demanded that Plaintiff return "all...
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