Rosario v. Amalgamated Ladies' Garment Cutters' Union, Local 10, I.L.G.W.U.

Decision Date17 July 1979
Docket NumberNos. 344,D,522 and 523,AFL-CI,s. 344
Citation605 F.2d 1228
Parties101 L.R.R.M. (BNA) 2958, 86 Lab.Cas. P 11,436, 5 Fed. R. Evid. Serv. 113 Thomas ROSARIO, Ovidio Vega and Ray Cabel, Plaintiffs-Appellees, v. AMALGAMATED LADIES' GARMENT CUTTERS' UNION, LOCAL 10, I.L.G.W.U., Abe Dolgen, Individually and as Manager of Amalgamated Ladies' Garment Cutters' Union, Local 10, I.L.G.W.U., Defendant-Appellants, and The City of New York, Defendant-Appellee. Thomas ROSARIO, Ovidio Vega and Ray Cabel, Plaintiffs-Appellees, v. AMALGAMATED LADIES' GARMENT CUTTERS' UNION, LOCAL 10, I.L.G.W.U., and International Ladies' Garment Workers' Union,efendants-Appellants. ockets 78-7335 to 78-7337.
CourtU.S. Court of Appeals — Second Circuit

Simon H. Rifkind, New York City (Jay H. Topkis, Richard M. Zuckerman, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, of counsel), for defendant-appellant Amalgamated Ladies' Garment Cutters' Union, Local 10, I.L.G.W.U.

Stephen C. Vladeck, New York City (Judith P. Broach, Lawrence M. Sapadin, Paul L. Shapiro, New York City, on the brief), for defendant-appellant Abe Dolgen, individually.

Max Zimny, New York City (Ann F. Hoffman, New York City, of counsel), for defendant-appellant International Ladies' Garment Workers' Union, AFL-CIO.

Burton H. Hall, New York City, for plaintiffs-appellees.

Before MOORE and MANSFIELD, Circuit Judges, and WYATT, * District Judge.

MANSFIELD, Circuit Judge:

Local 10 of the International Ladies' Garment Workers Union (ILGWU) and the ILGWU itself (both of which are sometimes collectively referred to herein as the "Union") are joined with Abe Dolgen, former Manager of Local 10, as defendants in two consolidated actions brought in the Southern District of New York by appellees, three members of Local 10, under § 102 of the Labor Management Reporting and Disclosure Act (LMRDA, the Landrum-Griffin Act, or the Act), 29 U.S.C. § 412, seeking nullification of certain union disciplinary proceedings and damages for violations of procedural and substantive rights under § 101 of the Act, 29 U.S.C. § 411, and seeking damages under pendent state tort claims. 1 These three defendants appeal from an order and judgment entered by Judge Constance Baker Motley after a grant of partial summary judgment and a jury trial of the remaining issues, permanently enjoining Local 10 from following certain procedures in disciplining its members and awarding compensatory and punitive damages against Local 10 and Dolgen.

The actions arose out of an altercation between appellees and Dolgen on January 29, 1975, in Dolgen's Local 10 office and a series of ensuing disciplinary proceedings against appellees conducted by Local 10 and the International. Appellees claimed that Local 10 and the ILGWU deprived them of the full and fair hearing required by § 101(a)(5)(C), by (1) remanding the disciplinary charges for retrial before essentially the same tribunal that had previously found them guilty and by (2) denying appellees the right to tape-record the proceedings at their own expense when the union did not provide for a verbatim record. 2 Appellees also claimed that the sanction imposed suspension of the right to attend membership meetings violated § 101(a)(1), the "equal rights" provision of the Act. In addition, appellees Rosario and Vega, invoking the court's pendent jurisdiction, advanced claims against Dolgen and the City of New York for false arrest and against Dolgen for malicious prosecution. 3

In a pretrial decision, reported at 441 F.Supp. 657, Judge Motley ruled that the challenged union trial procedures and sanction violated § 101. Accordingly she set We affirm the judgment below insofar as it holds (1) that a union may not under § 101 allow a member of a union tribunal which had convicted a union member to participate as a member of the tribunal upon a retrial of the same charges and (2) that a union may not prevent an accused from recording disciplinary proceedings when the union itself does not provide a verbatim record. We also affirm the judgment against Dolgen for false arrest and malicious prosecution. We reverse the decision that a union may not as a disciplinary sanction suspend a member's right to attend membership meetings. We set aside the damage awards against Local 10 and Dolgen on the federal claims on the grounds they were predicated in part on an erroneous legal theory and unsupported by sufficient evidence.

                aside the disciplinary conviction and permanently enjoined Local 10 and the ILGWU from committing such violations.  4 Appellees' remaining claims for compensatory and punitive damages were submitted to the jury in the form of special interrogatories.  The jury found that appellees were injured by Local 10's violations of § 101 but that Local 10 had not disciplined appellees in retaliation for their political opposition to the Local's leadership.  The jury further found that Dolgen had not contributed to the § 101 violations but had "acting under color of his authority as manager of the union, and not in his individual capacity as a complaining union member, dominated and manipulated the trial and their resultant punishment in order to get revenge against (appellees)."  The jury also found Dolgen liable for false arrest and malicious prosecution.  5

Since the tortuous background to this litigation is well described in Judge Motley's reported opinion, 441 F.Supp. at 661-70, we confine ourselves to facts essential to our opinion. Appellees had for several years prior to the events giving rise to this litigation been vocal critics of the management of Local 10 and in particular of Abe Dolgen, its manager. 6 On January 29, 1975, appellees met with Dolgen in his office to discuss employment in the cutting trades and alleged discrimination in job referrals by Rosario and Vega were handcuffed and searched by the arresting officer and taken to the police station in a squad car in the custody of two other police officers who arrived on the scene. At the station the police made one and possibly two calls to Local 10's office and were told that charges would be pressed. Rosario and Vega were each given an "Appearance Ticket," an instrument issuable by a police officer in a non-felony case, directing each individual to appear in the local criminal court at a specified time for a specified charge. See N.Y.Crim.Pro.L. § 150.10, Et seq. (McKinney). About two weeks later, Rosario and Vega appeared as directed in Criminal Court and, after spending several hours waiting as the case was repeatedly called, were told they could go home since the complainant had not appeared.

                Local 10's business agents.  A heated argument took place, following which Dolgen and five other officials of Local 10 who had entered Dolgen's office during the discussions jointly left the room and returned moments later with two police officers.  In the meantime appellee Cabel had departed to attend to some personal business.  One of the policemen advised Rosario that Dolgen wanted him and Vega to leave.  Rosario, startled, attempted to explain the situation but his remonstrance was cut short when Dolgen insisted that Rosario and Vega be arrested, declaring that he would press charges, and demanded that Cabel be tracked down and arrested.  7 Meanwhile Dolgen's five fellow officials were allegedly lined across the doorway to his small office, preventing appellees from leaving voluntarily and intensifying the intimidating atmosphere

On February 10, 1975, the very day when Rosario and Vega appeared in court, Dolgen, "acting in his individual capacity," filed intraunion disciplinary charges with Local 10 against them and Cabel, accusing them in multiple counts of interference with union operations and of conduct unbecoming a union member, in violation of the ILGWU's constitution. 8

On February 25, 1975, appellees were tried before the Executive Board of Local 10 sitting as a grievance committee, found guilty and sentenced to a one-year suspension of their right to participate in union membership meetings. They appealed this conviction to the Appeal Committee of the General Executive Board (GEB) of the ILGWU, claiming that Dolgen and some of his witnesses had participated in the deliberations of the trial body. The Appeal Committee, while declaring that this claim had not been established, nevertheless vacated the conviction to avoid any appearance of impropriety. Dolgen then promptly preferred identical new charges against appellees, which were heard on May 21, 1975 by the Local 10 Executive Board, several members of which had been on the Board when it heard the same charges in February. Again the Committee unanimously found appellees guilty as charged.

Appellees again appealed to the GEB's Appeal Committee, claiming that the tribunal was biased and that Dolgen had "maliciously" dominated the proceedings. They also protested the ruling of the trial body prohibiting them from tape-recording the proceedings and from examining the official minutes of the trial. 9 This time the Appeal Committee affirmed the conviction, ruling that the claim of bias or prejudice on the part of the second trial body was unsupported by evidence and could not be based simply on the fact that essentially the same group of individuals had decided the same At this juncture, appellees in September, 1975, filed suit in the federal court against appellants under LMRDA and state tort law. Shortly thereafter the GEB, Sua sponte, reviewed the decision of the Appeal Committee and directed the Trial Committee to conduct a new trial under certain specified conditions, principally that the tribunal consist of rank-and-file union members having no previous involvement with the case and that the Committee designate a secretary to take minutes, which would be available to all parties. 11 The members of this trial committee were elected by an open hand vote at the next regularly scheduled...

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