Rodonich v. Senyshyn

• Decision Date: 10 April 1995
• Docket Number: D,Nos. 54,55,s. 54
• Parties: 149 L.R.R.M. (BNA) 2033, 63 USLW 2649, 130 Lab.Cas. P 11,307 Joseph RODONICH, Alex Chotowicky, Wasyl Lawro, Harry Diduck, Edward T. Markunas, Executor of the Estate of Harry Diduck, Plaintiffs-Appellants, v. John SENYSHYN, individually, and as president, John Roshetski, individually, and as treasurer, Stephen McNair, Joseph Sherman, Andrew Klebetz, Albert Bender, William Nahay, Phil Chillak, Joseph Pastroski, Samuel Adams, Harold Spellman, Peter Jones, John Slan, Earl Dupree, John Chillak, Albert Nahay, Defendants, Housewreckers Union Local 95 and Laborer's International Union of North America, Defendants-Appellees. ockets 92-7394, 93-9262.
• Court: U.S. Court of Appeals — Second Circuit

Page 28

52 F.3d 28

149 L.R.R.M. (BNA) 2033, 63 USLW 2649,

130 Lab.Cas. P 11,307

Joseph RODONICH, Alex Chotowicky, Wasyl Lawro, Harry Diduck, Edward T. Markunas, Executor of the Estate of Harry Diduck, Plaintiffs-Appellants, v. John SENYSHYN, individually, and as president, John

Roshetski, individually, and as treasurer, Stephen McNair,

Joseph Sherman, Andrew Klebetz, Albert Bender, William

Nahay, Phil Chillak, Joseph Pastroski, Samuel Adams, Harold

Spellman, Peter Jones, John Slan, Earl Dupree, John Chillak,

Albert Nahay, Defendants,

Housewreckers Union Local 95 and Laborer's International

Union of North America, Defendants-Appellees.

Nos. 54, 55, Dockets 92-7394, 93-9262.

United States Court of Appeals, Second Circuit.

Argued Nov. 2, 1994.

Decided April 10, 1995.

Wendy E. Sloan, New York City (Lewis M. Steel, Hall & Sloan, of counsel), for plaintiffs-appellants.

Michael Barrett, Connerton, Ray & Simon, Washington, DC (Theodore T. Green, Laborers' Intern. Union of North America, of counsel), for defendant-appellee Laborers' Intern. Union of North America. ¹

Before: MINER, JACOBS, and PARKER, Circuit Judges.

JACOBS, Circuit Judge:

The question presented is whether a union member who sues his union under Sec. 102 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. Sec. 412, is precluded from recovering attorney's fees from the union where the sole relief achieved is money damages. The United States District Court for the Southern District of New York (Cannella, J.) answered that question in the affirmative and therefore denied plaintiff Harry Diduck's request for attorney's fees after entry of judgment in his favor on remand from this Court. We conclude that the

answer to the question depends upon the surrounding circumstances, including consideration of whether the monetary award had a salutary effect on union governance and the rights of members, and we therefore reverse and remand for a determination of whether, under the circumstances of this case, an award of attorney's fees is appropriate.

BACKGROUND

The long history of this case is chronicled in a previous decision of this court. See Rodonich v. House Wreckers Union Local 95 of Laborers' Int'l Union, 817 F.2d 967 (2d Cir.1987) ("Rodonich II "). We presume familiarity with that opinion and recount only those facts that bear upon and illuminate our resolution of the question presented.

In 1981, the governance of Local 95 of the House Wreckers Union (the "Local") was split between two competing factions. One faction was loyal to the Local's president, defendant John Senyshyn, and held three seats on the Executive Board. A faction loyal to plaintiff Joseph Rodonich also held three seats on the Board. The remaining, tie-breaking seat had recently been vacated. Plaintiff Harry Diduck, whose attorney's fees are the subject of this appeal, supported the Rodonich faction.

Notwithstanding the stalemate in the Executive Board, the Senyshyn faction was dominant. It held the senior positions within the Local and allegedly engaged in a pattern of conduct, including acts of physical violence, intended to suppress the Rodonich faction.

Diduck sent a letter dated May 25, 1981 to Senyshyn accusing him of various acts of misconduct and mismanagement in the Local's affairs, and alleging that Samuel Adams, a union member and Senyshyn adherent, had threatened Diduck with physical harm. Diduck sent copies to officials of the Laborers' International Union of North America ("LIUNA"). Shortly after this letter was mailed, Adams filed union disciplinary charges against Diduck, complaining that Diduck's letter "slandered" him in violation of a provision of the LIUNA constitution. These charges (along with other charges against plaintiffs Rodonich, Chotowicky, and Lawro), were taken up by the Local and assigned to a panel of union members selected by Senyshyn. After a hearing on August 21, 1981, the panel found Diduck guilty of having "slandered" Adams, fined Diduck $500 and warned him that any further offenses would lead to revocation of his union membership. Plaintiffs Rodonich, Chotowicky, and Lawro were also found guilty of various transgressions.

The union constitution afforded an avenue for plaintiffs to appeal to LIUNA. During the pendency of their appeal, Diduck and the others wrote numerous letters to LIUNA officials, "detailing the history of the factional dispute that led to their being disciplined and alleging that they had 'been disciplined for the exercise of [their] rights, as union members.' " Rodonich II, 817 F.2d at 971 (citation omitted). In their appeals before LIUNA's Eastern Hearings Panel, the four union members were represented by counsel, and were given the opportunity to argue their cases. Diduck's attorney alleged "that Diduck had been fined for statements he made in a letter to LIUNA and argued that such a fine violated the union constitution as well as Diduck's right of free speech." Id. The Hearings Panel rejected this claim, concluding that " 'the charges [against Diduck] are amply supported by the evidence.' " Id. That decision was approved and adopted by LIUNA's General Executive Board on February 23, 1982. The complaint in this litigation was filed on August 23, 1983.

The complaint alleged that the defendants had engaged in a scheme to suppress dissent within the Local, and had imposed unlawful discipline in violation of sections 101(a)(1), (2), (5), 609, and 610 of the LMRDA, 29 U.S.C. Secs. 411(a)(1), (2), (5), 529, 530 (1982). The complaint also alleged a variety of other statutory and common law claims. Before trial, the district court dismissed plaintiffs' state law contract claim, and granted LIUNA summary judgment on plaintiffs' claim based on a violation of LIUNA's constitution. See Rodonich v. House Wreckers Union Local 95 of Laborers' Int'l Union of N. Am., 624 F.Supp. 678 (S.D.N.Y.1985) ("Rodonich I "). The remaining claims were tried to a On appeal, another panel of this Court affirmed the dismissal of claims against LIUNA, except that it reversed the dismissal of Diduck's claims both against LIUNA and against Local 95, and remanded with instructions that the district court enter judgment in favor of Diduck and conduct further proceedings on the issue of damages. See Rodonich II, 817 F.2d at 978. Diduck's damages claim was scheduled for hearing on July 5, 1989. The parties settled on the courthouse steps, and the district court entered the appropriate order. Diduck reserved the right to move for equitable relief and an award of attorney's fees and costs, which he did shortly after the settlement. On July 8, 1991, the district court denied Diduck's motion for injunctive relief and ordered Diduck's counsel to submit a motion for attorney's fees within 30 days. On March 3, 1992, the district court denied plaintiffs' application to reargue their motion for injunctive relief, and the plaintiffs filed a timely notice of appeal; that appeal, however, was stayed pending final resolution of the attorney's fee issue. On November 1, 1993, the district court denied the fee application in its entirety. See Rodonich v. House Wreckers Union, Local 95 of Laborers' Int'l Union of N. Am., 837 F.Supp. 550 (S.D.N.Y.1993) ("Rodonich III "). This appeal followed, but Diduck himself had by then succumbed. Diduck's executor, who has been substituted as a party, has concluded that the estate has no right to pursue injunctive relief.

jury, which returned a verdict in favor of Rodonich, Chotowicky and Lawro, and against Local 95. The district court entered final judgment consistent with this verdict, dismissing all remaining claims against LIUNA, and dismissing all claims interposed by Diduck.

DISCUSSION

In Rodonich II, we held that "[t]here is no question that discipline of a union member for even libelous speech is a violation of the LMRDA." 817 F.2d at 975. We concluded that the sanctions imposed by the union--although unenforced--punished Diduck's exercise of his free speech rights under the LMRDA, and we therefore remanded to the district court for entry of a directed verdict in Diduck's favor. Id. at 976.

In due course, judgment in the amount of $20,000 each was entered against LIUNA and the Local. The district court, however, refused to award any attorney's fees to Diduck. Relying on cases from the Fifth and Sixth Circuits, the court concluded that, because only money damages were awarded, there was no "common benefit" bestowed upon the union membership. See Rodonich III, 837 F.Supp. at 556-59 (citing Guidry v. International Union of Operating Eng., Local 406, 882 F.2d 929, 944 (5th Cir.1989), vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990); Shimman v. International Union of Operating Eng., Local 18, 744 F.2d 1226 (6th Cir.1984), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985)). The failure to obtain equitable relief, according to the district court, precludes an award of attorney's fees. We disagree.

Section 102 of the LMRDA (under which this action was brought) recites that a court may award "such relief (including injunctions) as may be appropriate," but does not mention attorney's fees. 29 U.S.C. Sec. 412. The Supreme Court, however, has held that an award of attorney's fees to a successful plaintiff who sues under section 102 (to vindicate his rights under section 101, 29 U.S.C. Sec. 411) "is consistent with both the Act and the historic equitable power of federal courts to grant such relief in the interests of justice." Hall v. Cole, 412 U.S. 1, 14, 93 S.Ct. 1943, 1950, 36 L.Ed.2d 702 (1973). According to the Court, this rule represents a logical extension of the "common benefit" doctrine of Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), which permits an award of attorney's fees where "the plaintiff's successful litigation confers 'a substantial benefit on the members of an ascertainable class, and where the court's...