Sheet Metal Workers' International Association Local

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3646-13T1
SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION LOCAL UNION 22,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. November 13, 2015
APPELLATE DIVISION
RAYMOND KAVANAGH,
Defendant-Appellant/
Third Party Plaintiff,
v.
DAVID CASTNER, THOMAS FISHBACK,
JAMES O'REILLY, CHARLES BEELITZ,
RICHARD KING, THOMAS GALLAGHER,
JAMES SHARKEY, JOHN KEENAN,
ALAN "BRUCE" PAK, JOHN CALIGUIRE,
WILLIAM BUCHANAN,
Third-Party Defendants.
_______________________________________
Argued September 29, 2015 – Decided November 13, 2015
Before Judges Fisher, Espinosa, and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket
No. L-3445-12.
Dominick Bratti argued the cause for
appellant (Wilentz, Goldman & Spitzer, P.A.,
attorneys; Mr. Bratti, of counsel and on the
briefs; Annemarie T. Greenan, on the
briefs).
Mark E. Belland argued the cause for
respondent (O'Brien, Belland & Bushinsky,
LLC, attorneys; Mr. Belland, of counsel;
David F. Watkins, Jr., on the brief).
The opinion of the court was delivered by
CURRIER, J.S.C. (temporarily assigned).
In this appeal, we consider the factors to be applied by a
trial judge in determining the reasonableness of a fine imposed
by a union for the violation of its constitution. Defendant
Raymond Kavanagh appeals the April 9, 2014 order granting
summary judgment to plaintiff Sheet Metal Workers' International
Association Local Union 22 (Local 22) and confirming the fines
imposed against him by the union in this matter. After
reviewing the record in light of the contentions raised on this
appeal, we affirm the judge's ruling as to Kavanagh's violations
of the union constitution, but remand for the trial judge to
determine the reasonableness of the fine imposed, giving due
consideration to the factors we set forth in this opinion.
Kavanagh was a long-time member of Local 22. In 1997, he
became an owner of Quality Sheet Metal and Welding Inc. which
was not a signatory to a collective bargaining agreement. In
July 2011, Kavanagh was charged with violating the union's
constitution because he was not an employee or employer bound by
the collective bargaining agreement with Local 22. Kavanagh
resigned his membership the following month. He was informed
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that a trial would be held in October 2011. Kavanagh responded
that he was not subject to the union's jurisdiction because he
had resigned his membership and because he was not permitted to
bring outside counsel with him to the hearing. Following the
conclusion of the trial, at which Kavanagh did not appear, he
was found to have violated six provisions of Local 22's
constitution and was assessed a fine of $115,000.
A civil suit was filed to enforce the union judgment.
Summary judgment was granted to Local 22 and the fines were
confirmed. This appeal ensued.
On appeal, Kavanagh alleges numerous errors in the trial
judge's ruling on the motion for summary judgment. We deem it
necessary to only address the following arguments: Kavanagh
contends he was not subject to Local 22's jurisdiction as he had
resigned his membership, and his due process rights were
violated when he was not permitted to have counsel with him at
the hearing. Aside from the reasonableness of the fines, which
we address below, we do not find the remainder of the arguments
meritorious of discussion in a written opinion. R. 2:11-
3(e)(1)(E).1
1
Kavanagh contended that the trial court 1) applied the wrong
standard of review in motions regarding the complaint,
counterclaims and third party complaint; 2) failed to review de
(continued)
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The relationship between a member and a union is a
contractual one; the union's bylaws and constitution are the
contract, and the contract is enforceable in state court. N.
Jersey Newspaper Guild v. Rakos, 110 N.J. Super. 77, 84 (App.
Div.), certif. denied, 56 N.J. 478 (1970). A union must
discipline members "in accordance with their constitutions and
bylaws." Id. at 88 (quoting Dudek v. Pittsburgh City Fire
Fighters, 228 A.2d 752, 756-57 (Pa. 1957)).
Kavanagh argues that his resignation was effective upon its
receipt,2 and he was, therefore, not subject to the union's
discipline. When a violation occurs before the resignation,
however, the member is still subject to the union's
jurisdiction. Article Eighteen of Local 22's Constitution and
Ritual provides for the discipline and sanction of former
members.3 "[A] union member must leave the union prior to his
(continued)
novo the union's decision; and 3) erred in holding that he
failed to exhaust internal remedies.
2
"Any member may resign from membership. Resignations shall be
effective upon receipt of written notification by mail or hand
delivery to any full-time officer or business representative at
his or her local union." Constitution and Ritual of the Sheet
Metal Workers Association, Art. 16, § 14.
3
"[A] suspended member and, also, a former member who has been
expelled, or has resigned in accordance with Section 14 of
Article Sixteen (16), shall be permitted to appear before a
local union trial committee or an International Trial Board to
(continued)
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violation of the union's rule if he is to avoid being
disciplined therefor." Newspaper Guild, supra, 110 N.J. Super.
at 88. Thus, the trial judge properly ruled that the union had
jurisdiction to impose disciplinary action against Kavanagh.
Article Eighteen also provides authority for an accused
party to select any good standing member of his or any other
local union as his counsel. Although this specific issue has
not been addressed by a New Jersey court, we again note that the
provisions set forth in a union's constitution form a contract
between the union and its members. The provisions establish the
procedure for an internal trial and appeal and include
punishable conduct. "[T]he courts' role is but to enforce the
contract." NLRB v. Allis-Chambers Mfg. Co., 388 U.S. 175, 182,
87 S. Ct. 2001, 2008, 18 L. Ed. 2d 1123, 1129 (1967).
Unions have a significant interest in controlling their
disciplinary proceedings; therefore, outsiders are prohibited
from appearing at the proceedings as there is no ability to
control their conduct. Local 22 had no contempt power or other
authority to control a non-union member's conduct in its
proceedings. Other jurisdictions have addressed this provision
(continued)
defend against charges preferred against him or her . . . ."
Id. at Art. 18, § 1(a).
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and found that union members are not entitled to outside counsel
during disciplinary trials. Cornelio v. Metro. Dist. Council,
243 F. Supp. 126, 128 (E.D. Pa. 1965) (upholding a union
provision which only permitted a union member to be represented
by another union member at a hearing), aff'd, 358 F.2d 728 (3d
Cir. 1966), cert. denied, 386 U.S. 975, 87 S. Ct. 1167, 18 L.
Ed. 2d 134 (1967); see United States v. Int'l Bhd. of Teamsters,
247 F.3d 370, 385 (2d Cir. 2001) ("Not all of the due process
protections available in the federal courts apply to union
disciplinary proceedings."); Frye v. United Steelworkers of Am.,
767 F.2d 1216, 1224 (D.C. Cir.), (federal law does not require
union disciplinary hearings to include all the protections
regarding judicial proceedings, including representation by an
attorney), cert. denied, 474 U.S. 1007, 106 S. Ct. 530, 88 L.
Ed. 2d 461 (1985); Curtis v. Int'l Alliance of Theatrical Stage
Emps. & Moving Picture Mach. Operators, 687 F.2d 1024, 1029 (7th
Cir. 1982) (upholding the decision to not allow plaintiff the
representation of a lawyer at a union hearing); Buresch v. Int'l
Bhd. of Elec. Workers, 343 F. Supp. 183, 191 (D. Md. 1971)
("Neither the Sixth Amendment to the United States Constitution
nor [federal law] guarantees a union member the right to be
represented by legal counsel in union disciplinary
proceedings."), aff'd o.b., 460 F.2d 1405 (4th Cir. 1972).
6 A-3646-13T1
We find, that as a member of Local 22, Kavanagh bound
himself to the provisions of its constitution. He was therefore
not entitled to be represented by outside counsel at the trial.4
Kavanagh was given the opportunity to appear and be heard; he
chose not to avail himself of that right.
A trial judge's review of internal union functions is
limited. "[W]here the proceedings within the organization have
been regular, fair, and free from fraud, and the party whose
rights are involved has been given the opportunity to appear and
be heard, the courts will not inquire into the merits of the
case or review the action of the association . . . . " Lewis v.
Am. Fed'n of State, Cnty. & Mun. Emps., 407 F.2d 1185, 1193 (3d
Cir.), cert. denied, 396 U.S. 866, 90 S. Ct. 145, 24 L. Ed. 2d
120 (1969). "'[A]lthough the courts may be without power to
review matters of credibility or of strict weight of the
evidence, a close reading of the record is justified to insure
that the findings are not without any foundation in the
evidence.'" Id. at 1195 (quoting Vars v. Int'l Bd. of
Boilermakers, 320 F.2d 576, 578 (2d Cir. 1963)). Mindful of
that admonition, we address the issue of the fines imposed
against Kavanagh as a result of the violations.
4
We note there are no restrictions on a member's right to
consult with an attorney in preparation for the hearing.
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The constitution of the union authorizes the imposition of
a fine. In a suit brought by the union, the judge is to make a
determination as to whether the fine was arbitrarily imposed and
unreasonable in amount before enforcing it. Under Allis-
Chambers, supra, 388 U.S. at 192, 87 S. Ct. at 2013, 18 L. Ed.
2d at 1134, it should not be "unreasonably large." The judge
has the authority to reduce the fine if appropriate. Newspaper
Guild, supra, 110 N.J. Super. at 91.
New Jersey courts have not addressed the issue of what
constitutes an "unreasonably large" union fine since 1970. In
Newspaper Guild, the union brought several charges against the
defendant for improper activities during a strike; the defendant
had continued to earn income and received a promotion at the
company after the strike ended. Id. at 80. The judge analyzed
the challenged fine under the conditions present when the fine
was levied: the nature of the offenses, how the defendant
profited from the offenses, and the current economic conditions.
Id. at 91. The judge also looked to the inflationary climate
that existed in 1970 when assessing the reasonableness of the
fine. Ibid. Finally, the judge noted that the fine had a
punitive purpose that "was to serve as a deterrent to others."
Ibid. The judge confirmed the fine using these factors and
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found it to be sufficiently related to the conduct of the
defendant. Ibid.
Other jurisdictions looking at this issue have added other
factors to the analysis. In CWA Local 7400 v. Abrahamson, 422
N.W.2d 547, 549 (Neb. 1988), the union sought to enforce
judgment of fines it had imposed against seventy of its members
for their activity during a strike. The fines had been
calculated using the gross wages earned by the member for each
day worked during the strike. Id. at 553.
In considering the fine, the Nebraska Supreme Court looked
at the "reasonable relationship" between the fines and the
conduct that led to the penalty. Ibid. It noted that any
punitive effect the fines might have "in no way lessens their
effect in deterring future strikebreakers and in impressing upon
union members the importance of solidarity." Id. at 554.
Finally, the Abrahamson court recognized that liquidated damages
are appropriate in these types of union disputes as "the actual
damages to the union are impossible to ascertain. It is just
such a situation that liquidated damages are intended to cover."
Ibid.
Ohio has established a comprehensive analysis to determine
whether fines are "unreasonably large." Int'l Bhd. of Elec.
Workers, Local Union No. 986 v. Smith, 602 N.E.2d 782 (Ohio Ct.
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App. 1992). In Smith, the defendant was fined $5,000 after
voluntarily informing her employer that a fellow union member
intended to falsify her timesheet, a violation of the union
constitution. Id. at 783-84. The court began its analysis by
noting "[t]he severity of the fine alone or its punitive effect,
however, is not tantamount to . . . unreasonableness." Id. at
788. It then set forth the following eight factors to be used
when analyzing the reasonableness of the fine:
1) methods and formulas used for
calculation, (2) the member's conduct for
which the fine was imposed, (3) income of
the member, (4) amount of fine, (5)
resulting harm or damage to the union or its
other members, (6) nature of offenses being
punished, (7) manner and extent to which the
member benefited or profited, and (8) the
current economic conditions.
[Ibid. (citations omitted).]
In Newspaper Guild, supra, 110 N.J. Super. at 91, we
recognized that it was appropriate for a fine to "serve as a
deterrent to others who might be inclined to dilute the union's
bargaining power by defying its legitimate directives." To
properly redress the violative conduct, however, the fine must
be connected to the violations. We therefore find that in
determining the reasonableness of a union-imposed fine, the
trial judge should consider relevant factors, including the
following: 1) the conduct for which the fine was imposed; 2)
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the extent to which the member benefited or profited; 3) the
calculation of the fine; 4) the harm to the union and its
members; and 5) the current economic conditions. We believe
these factors provide the necessary framework for judges to make
the required assessment of union-imposed fines.
In light of the above ruling, we remand the matter for the
trial judge to consider the factors we have set forth in making
a determination as to the reasonableness of the fines imposed by
the union. We affirm the judge's rulings on the remaining
arguments.
Affirmed in part, remanded in part. We do not retain
jurisdiction.
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