Wall v. Constr. & Gen. Laborers' Union, Docket No. 99-7773

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-7773
• Citation: 224 F.3d 168
• Parties: (2nd Cir. 2000) GARY R. WALL and WILLIAM COOKSEY, SR., Plaintiffs-Appellants, v. CONSTRUCTION & GENERAL LABORERS' UNION, LOCAL 230, JOHN PEZZENTE, DOMINICK LOPREATO, and CHARLES LECONCHE, Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 168

224 F.3d 168 (2nd Cir. 2000)

GARY R. WALL and WILLIAM COOKSEY, SR., Plaintiffs-Appellants, v. CONSTRUCTION & GENERAL LABORERS' UNION, LOCAL 230, JOHN PEZZENTE, DOMINICK LOPREATO, and CHARLES LECONCHE, Defendants-Appellees.

Docket No. 99-7773

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: June 8, 2000

Decided: August 24, 2000

Appeal from an adverse grant of summary judgment in the District of Connecticut (Janet C. Hall, Judge). Appellants argue that their union's refusal to readmit them as members violated the Labor Management Reporting and Disclosure Act as well as Connecticut statutory and common law. The district court held that appellants' federal claim was time-barred and that their state law claims were preempted by the Labor Management Relations Act. We conclude both that appellees are estopped from interposing a limitations defense and that the limitations period of the federal claim was tolled. We therefore reverse the dismissal of the federal claim. However, we affirm the dismissal of the state law claims. [Copyrighted Material Omitted] WENDY E. SLOAN, Hall & Sloan, New York, New York, for Plaintiffs-Appellants.

ROBERT M. CHEVERIE, Robert M. Cheverie & Associates, P.C. (John T. Fussell, of counsel), East Hartford, Connecticut, for Defendants-Appellees.

Before: WINTER, Chief Judge, KATZMANN, Circuit Judge, and HODGES, District Judge.^*

WINTER, Chief Judge:

Appellants Gary R. Wall and William Cooksey, Sr. -- two long-time dissident members of appellee Construction & General Laborers' Union, Local 230 (hereinafter "Local 230" or the "Union") -- stopped paying dues after prevailing against the Union in a National Labor Relations Board ("NLRB") unfair labor practice proceeding. Thereafter, however, both men attempted to be readmitted to the Union pursuant to a right guaranteed by the Union's constitution. However, the Union refused to readmit them based on shifting reasons.

Appellants' complaint in the present matter alleged violations of Sections 101 and 609 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 411, 529, and state law claims. The Union moved to dismiss the complaint for lack of subject matter jurisdiction on the ground that appellants were not "members" of the Union. The district court denied the motion.¹ However, it granted summary judgment on limitations grounds based on the fact that appellants did not file suit within three years from the time that the Union first responded to their requests for readmission. The district court rejected appellants' arguments that the Union's conduct constituted a continuing violation and/or that the limitations period was tolled. It also dismissed the state law claims, concluding that they were preempted by Section 301 of the Labor Management Relations Act ("LMRA").

We reverse in part and affirm in part. We hold both that appellees are equitably estopped from interposing a limitations defense and that the limitations period was tolled on statutory grounds. Accordingly, appellants' LMRDA claim should not have been dismissed as time-barred. Appellants' state law claims, however, were properly dismissed on preemption grounds, although on remand the district court may in its discretion permit these claims to be reframed as federal claims.

BACKGROUND

We of course view the record in the light most favorable to appellants. See Bayway Refining Co. v. Oxygenated Marketing & Trading A.G., 215 F.3d 219, 222 (2d Cir. 2000). In this regard, we have a considerable advantage over the district court in that appellants now have the benefit of counsel, and a more organized presentation of the record has been made to us than was made in the district court.

a) Lapse in Union Membership and Initial Readmission Efforts

Wall and Cooksey were both long-time members of Local 230, one of several local unions affiliated with the Laborers' International Union of North America ("LIUNA"). By or about 1985, appellants had become dissidents clashing with the Union leadership, including appellees Lopreato, Pezzente, and LeConche. Believing they were being singled out for discriminatory treatment, appellants brought unfair labor practice charges against the Union before the NLRB. The NLRB found that the Union removed Wall as shop steward in November 1985 in retaliation for refusing to follow directions involving the "shake down" of laborers for money. The NLRB also found that the Union had discriminated against both Wall and Cooksey in the Union's hiring hall referral system in retaliation for their opposition to Union management. The NLRB ordered the Union to make appellants whole for lost earnings suffered as a result of its discriminatory conduct.

In July 1990, Cooksey could not get work and stopped paying union dues. In January 1992, the unfair labor practice proceeding was settled with appellants' consent. Wall stopped paying union dues in February 1992, intending to dissociate from the Union. Disputes later arose, however, with respect to the effect of the settlement on Wall's and Cooksey's pension credits. Appellants contended that they were misled as to what they would receive.

Appellants apparently came to believe that their pension benefits might be enhanced if they renewed their membership in the Union. Cooksey first requested readmission to the Union in a letter dated April 24, 1992, to which he attached a check for $351.00. The Union responded on April 28, 1992 that there was no work available and that it was the Union's policy not to "initiate or reinstate" members absent work opportunities. The letter suggested that Cooksey "defer [his] application of reinstatement until [he] bec[a]me employed" and returned the $351.00 check. The letter said nothing about a one-year limitation on readmission.

In August 1993, Wall wrote to the Union to learn the amount of dues owed on his "book," a term synonymous for our purposes with union membership. The Union responded in a letter dated August 25, 1993, titled "Readmission to Local Union 230." The letter stated that, because Wall had been delinquent in the payment of his dues "in excess of one (1) year, [he was] not eligible for a readmission on [his] previous book but must be reinitiated as a new member, subject to payment of the initiation fee." The letter also stated that it was the Union's policy not to accept new members except where there are work opportunities "or where the applicant is working at the calling." The letter closed by explaining that:

Presently, there are no significant referral opportunities in the jurisdiction. However, should you wish to sign the list for referral if and when such an opportunity should arise, you are free to do so. Upon your referral or employment at the calling, you will be considered eligible for membership, subject to payment of all required fees.

Thereafter, both appellants sought work through the local's hiring hall, as suggested by the Union's letters.

b) Readmission Efforts from 1995-1997

On February 13, 1995, LIUNA entered into an agreement with the United States Department of Justice. At or about this time, appellants retained an attorney, Marc P. Mercier. Mercier suggested that appellants seek readmission through procedures established in the new agreement before filing suit. Both men thereafter sent letters to the Union again requesting readmission. Cooksey sent a letter dated March 1, 1995, "requesting to be readmitted" and noting that this was his "second request." The Union responded in a letter dated March 7, 1995:

[I]t is and has been the policy of Local Union 230 to take no new initiations or readmissions unless and until there is a job to which the applicant can be referred or unless the applicant has a position in covered employment. Regrettably, there is no work now available on a referral basis. However, you may register for referral at any time and will be referred to work in accordance with our existing referral system as vacancies may occur.

In a letter dated April 24, 1995, Wall also "request[ed] to be readmitted," referring specifically to his right to readmission under LIUNA's constitution. The Union responded on April 26, 1995, stating that Wall had "been advised previously that it is and has been the policy of Local Union 230 to take no new initiations or readmissions unless and until there is a job to which the applicant can be referred to unless the applicant has a position in covered employment." Neither response by the Union mentioned anything about a one-year rule.

In December 1995, several months after these rejections, the Union barred appellants from signing the referral list. Appellants immediately complained to Michael S. Bearse, LIUNA's General Counsel, and, with Mercier's aid, were once again allowed to sign the referral list. Wall also wrote to the Union and asked, among other things, whether he could "interpret the meaning of being registered on Local Union 230 out of work list as meaning [the Union] will now allow us to exercise our rights to readmission. If so please tell me the amount of money needed and I will send it to you immediately." On January 5, 1996, LeConche responded to Wall's inquiry regarding readmission, stating that "it is my opinion that you may be a barred individual within the meaning of the LIUNA Ethics Code. Therefore, I will be referring this matter to the Inspector General's Office." On April 9, 1996, the Union's attorney, Robert M. Cheverie, wrote a letter to the Inspector General conveying his legal opinion that Wall and Cooksey were "barred persons."

During this time period, LIUNA's General Executive Board ("GEB") attorney, Robert D. Luskin, investigated appellants' complaint concerning their right to readmission into the Union.² On June 26, 1996, Luskin wrote Cheverie and noted that he had read Cheverie's April 9, 1996 letter. However, Luskin stated that he believed Cheverie's position to be untenable. Luskin noted that he "unde...