Eugene Ruocchio Robert A. D'Angiolillo, Appellants v. United Transportation Union, Local 60 Donald J. Bogen (Dan) United Transportation Union
Eugene Ruocchio Robert A. D'Angiolillo, Appellants v. United Transportation Union, Local 60 Donald J. Bogen (Dan) United Transportation Union
Eugene Ruocchio Robert A. D'Angiolillo, Appellants v. United Transportation Union, Local 60 Donald J. Bogen (Dan) United Transportation Union
1999)
On Appeal from the United States District Court for the District of New
Jersey (D.C. Civil No. 97-cv-5732) (District Court Judge: Honorable
Nicholas H. Politan)[Copyrighted Material Omitted]
Arthur L. Fox, II, Esq. (argued) Lobel, Novins & Lamont 1275 K Street,
N.W., Suite 770 Washington, DC 20005 Attorney for Appellants
Kevin C. Brodar, Esq. (argued) United Transportation Union Assistant
General Counsel 14600 Detroit Avenue Cleveland, OH 44107 Timothy R.
Hott, Esq. Hott & Margolis 591 Summit Avenue, Suite 300 Jersey City,
NJ 07306 Attorneys for Appellees
Before: Stapleton, Rendell, and Aldisert, Circuit Judges
Rendell, Circuit Judge.
Eugene Ruocchio and Robert A. D'Angiolillo are members of the UTU and its
local chapter, UTU Local 60. Ruocchio also served as treasurer of Local 60,
having been elected with support from D'Angiolillo. As treasurer, Ruocchio
was responsible for depositing a refund check for overpayment Local 60
received from Vernay Moving, Inc., a moving company that had moved Local
60 into new offices. Ruocchio claims that he was unable to deposit Vernay's
original refund check, dated May 28, 1997, because it was not made out to the
union, but to Local 60's secretary, Susan Bogen, who also is the wife of Local
60's General Chairperson, Donald Bogen. To resolve this problem, Ruocchio
requested Susan Bogen to ask Vernay to prepare another check, this time made
out to Local 60. The record reflects that Susan Bogen did so, in a letter to
Vernay dated July 28, 1997.
Vernay sent a new check to Susan Bogen, made out to the union, and it was
forwarded to Ruocchio. On September 15, 1997, Ruocchio addressed a letter to
Local 60's Vice Chairperson Ronald B. Hicks,1 addressing various union
financial matters, including the check from Vernay. Ruocchio noted:
"Finally, over a month ago I had received a refund check from the VERNAY
Company for which I returned as a result of it being rejected from the bank as a
third party check. I have since received another check from the same company,
however the amount is drastically reduced with no explanation. Please advise
why this has happened and when I am to expect the additional monies owed to
our members."
Copies of the checks issued to Susan Bogen and the union show that the
Copies of the checks issued to Susan Bogen and the union show that the
amount of both checks was the same--$125. Thus, Ruocchio's representation
that the amount of the new check was "drastically reduced" from the prior one
was inaccurate.
The minutes of the September 28th meeting reflect that the inaccuracy of the
representation in Ruocchio's letter was discussed, and that Ruocchio agreed to
print a retraction, although no retraction was issued. In a letter dated October
14, 1997, General Chairperson Donald Bogen charged Ruocchio with a
violation of Article 78 of the union constitution, which provides: "A member
who willfully circularizes untrue statements shall be expelled from membership
in the United Transportation Union if, after being charged and tried under the
trial provisions of this Constitution, his/her guilt has been established." UTU
Constitution, Art. 78, lines 1-4. Bogen, referencing the excerpt from Ruocchio's
letter reproduced above, noted:
"This statement is a lie, both checks were exactly for the same amount. . . . As
you know, Susan Bogen my wife, is our office secretary and this is a direct
affront to her character as she is the person who the original check was
addressed to." At the next monthly union meeting, on October 26, 1997,
Ruocchio was removed from office pending trial.2 The trial was originally set
for November 21, 1997."
10
****
11
Bogan and his political allies are using internal charges to punish their political
opponents.
12
13
14
****
15
For whatever reasons, Don Bogen reportedly took great umbrage, perhaps
because my question concerning the Vernay reimbursement allegedly
constituted "a direct affront to [his wife's] character," . . . but more likely
because he was hunting for some excuse to remove a "dissident" from his
Executive Board otherwise comprised of loyalists or people he can control one
way or another.
16
In any event, the very first notice I had that my simple, honestly intended
question had caused a political aneurysm was when, at the next general
membership meeting on October 26, 1997, I was brought up on internal union
charges, effectively tried before those members who happened to be in
attendance, and removed from the office to which I had been elected by the
entire membership. In essence, I was caught totally off balance by Bogen and
his lynch mob. I now understand that the event had been carefully scripted for
the purpose of eliminating a political opponent.
17
18
19
declaratory relief that Article 78 is null and void; and 2) injunctive relief not
only enjoining defendants from enforcing Article 78 and requiring they notify
union members that Article 78 is no longer in force, but also enjoining
defendants from retaliating against union members for exercising their rights
under Title I of the LMRDA.
20
Prior to the union trial, which had been postponed from the originally
scheduled November date, the District Court heard oral argument on
Ruocchio's application for a preliminary injunction, but granted defendants'
motion to dismiss the application, while retaining jurisdiction over the matter
pending the outcome of the internal union trial. The Court explained that it
would "not interfere with the internal workings of the Union at this point in
time." Nonetheless, the Court noted: "Though not making a determination one
way or the other at this time, the Court is compelled to note that it has serious
reservations as to the validity of Article 78."
21
The union trial was held on March 30, 1998, and, on April 10, 1998, the Trial
Board ruled that Ruocchio had violated Article 78. On May 30, 1998, Ruocchio
appealed this decision to the International President, who overturned the Trial
Board and reinstated Ruocchio to his position as treasurer, stating:
22
I have carefully reviewed the trial transcript, exhibits, and your appeal letter.
After such review I have determined that the trial board failed to focus on
charges brought and that the record as a whole does not present a violation of
any willful circulization of untrue statements as contemplated by Article 78.
23
On July 13, 1998, in a letter addressed to Bogen (of which Ruocchio and other
union officials received copies), the International President explained that, in
overturning the Board's decision, he had not Judged the propriety of Ruocchio's
conduct, but had simply concluded that there was insufficient evidence of
"willful" conduct on Ruocchio's part.7
24
25
26
Although the precise issue before us relates to mootness of the instant dispute,
and whether plaintiff is entitled to relief, the issue is best couched in the
following terms for our purposes: whether the decision of the dispute continues
to be justified by sufficient prospect that it will have impact on the parties. See
13A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE 3533, at 212 (1984). We conclude that, in light of the unique
considerations involved in the union speech context, and the facts averred in
this case, it is likely that a decision in the case will impact the parties
notwithstanding Ruocchio's reinstatement. We will therefore remand to the
District Court for a determination of the claims that should be decided, in light
of this opinion.
27
28
Here there can be no question that Ruocchio's claim for monetary damages
survives and is not moot. See Sheet Metal Workers' Int'l Ass'n v. Lynn, 488
U.S. 347, 354-55 (1989) (holding that an officer had stated a cause of action
under 411(a)(2) because retaliatory removal from office constituted a price
paid for the exercise of his membership right of free speech). The District Court
never addressed this claim, but we hold that on this basis alone the District
Court must hear the case to determine Ruocchio's entitlement to damages. The
question as to whether plaintiff continues to have a claim for declaratory and
injunctive relief is a closer one. However, based on the allegations of plaintiff's
complaint and his affidavit in this case, we have little difficulty in finding that
these claims, too, are very much alive, and have not been rendered moot by
Ruocchio's reinstatement. Ruocchio's complaint paints a picture of the union
30
successful litigant dispels the `chill' cast upon the rights of others." Id. at 8-9,
14. As the Second Circuit Court of Appeals noted in Salzhandler v. Caputo, 316
F.2d 445 (2d Cir. 1963):
31
The LMRDA of 1959 was designed to protect the rights of union members to
discuss freely and criticize the management of their unions and the conduct of
their officers. The legislative history and the extensive hearings which preceded
the enactment of the statute abundantly evidence the intention of the Congress
to prevent union officials from using their disciplinary powers to silence
criticism and punish those who dare to question and complain.
32
Id. at 448-49. Salzhandler held that the protection afforded by the LMRDA was
so broad that even libelous speech was protected. See id. at 450-51 (holding
that libelous speech that may be the basis for a civil action may not be the basis
for union discipline, because union "procedure is peculiarly unsuited for
drawing the fine line between criticism and defamation"); see also Gertz v.
Welch, 418 U.S. 323, 347 (1974) (finding, in the First Amendment context, that
states may not impose liability for false and defamatory speech absent a
showing of fault).10 Courts have also held that the LMRDA provides them with
broad discretion to fashion appropriate relief for LMRDA violations. See
Gartner v. Soloner, 384 F.2d 348, 354-56 (3d Cir. 1967) (discussing courts'
broad remedial power under the LMRDA, in determining that attorney's fees
may be awarded under the statute).
33
Further, in light of the above concerns, courts have been expansive in their view
of a litigant's standing to bring legal action in situations in which free speech
rights are implicated. Cases addressing issues of standing in the free speech
labor context -- which mirror the same concerns that exist regarding mootness - have recognized that limitations on free speech rights can result in a "chilling
effect" on others' exercise of those rights, and have taken a broad view of
standing based on this prospect.11 In Nelson v. International Association of
Bridge, Structural & Ornamental Iron Workers, 680 F. Supp. 16 (D.D.C. 1988),
the court looked to the First Amendment overbreadth doctrine in determining if
plaintiffs had standing to challenge a union provision as violative of the
LMRDA. See id. at 24. One of the plaintiffs had not even been charged under
the provision, and simply alleged that his own interpretation of the broad
provision induced him to remain silent. See id. at 23. Nonetheless, the court
explained that, under the relaxed rules of standing applied in this context:
34
Litigants, therefore, are permitted to challenge a statute not because their own
rights of free expression are violated, but because of a judicial prediction or
assumption that the statute's very existence may cause others not before the
Id. at 24 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). The court
concluded that the plaintiffs had standing to challenge the section of the union
constitution, because it was so "grossly overbroad," and "so plainly" violated
the LMRDA that " `no judicial prediction or assumption' is necessary to
ascertain that free speech will be chilled," and denying plaintiffs standing
would perpetuate the chilling effect on the rights of all union members. Id. at
25; see also Virginia v. American Booksellers Ass'n, 484 U.S. 383, 393 (1988)
(plaintiffs had standing to raise a facial challenge to an allegedly speechinfringing statute before the statute had been enforced because they had alleged
"an actual and well-founded fear" that the statute would be enforced against
them, and "the alleged danger of this statute is, in large measure, one of selfcensorship; a harm that can be realized even without an actual prosecution").12
36
We have had occasion to endorse this expansive view of union speech rights, in
Mallick v. International Brotherhood of Electrical Workers, 644 F.2d 228 (3d
Cir. 1981) and Semancik v. United Mine Workers of America District # 5, 466
F.2d 144 (3d Cir. 1972). In Mallick, plaintiff union members were "vocal and
persistent critics" of union leadership who were charged with violating various
provisions of the union constitution, including provisions similar to the one at
issue in this case. See Mallick, 644 F.2d at 230-32. The provisions made
punishable: "[p]ublishing or circulating among the membership, or among
[local unions] false reports or misrepresentations," and "[s]landering or
otherwise wronging a member of the [union] by any willful act or acts." Id. at
231 n.1. The penalties assessed for violations of these particular provisions
were eventually reversed by the union's international representative, due to
insufficient evidence that the statements at issue were untrue, much like the
charges were reversed in the instant case. See id. at 232 & n.5. In addition to
compensatory and punitive damages, plaintiffs sought declaratory and
injunctive relief barring enforcement of the allegedly illegal union provisions
under which they had been charged. See id. at 232. The district court
determined that plaintiff union members lacked standing to challenge the
validity of union provisions that formed the basis for charges that had been
overturned by the international representative. See id. at 233. We reversed. See
id. at 236.
37
In holding that the district court erred in failing to consider plaintiffs' equitable
claims based on these charges, we noted the "expansive protection" given to
union members' speech rights. See id. at 235 ("The Bill of Rights section of the
[LMRDA] is designed to foster democratic governance within labor unions,
and to encourage members freely to Dissent from the policies and
Harm to free speech rights . . . is not measured solely in economic terms, nor
must concrete punishment be meted out to confer standing to sue. The right to
speak one's views freely is so fundamental that the spectre of punishment, or
the uncertainty created by a vaguely worded prohibition of speech, is injurious
as well.
39
Id. We noted that the mere fact that the members were charged, as well as the
possibility of future charges based on the challenged prohibitions, could have a
substantial chilling effect on plaintiffs' and other union members' exercise of
their free speech rights: "The goal of union democracy, achieved through the
expression of opposing viewpoints, would be difficult to realize if members felt
deterred from expressing their opinions by the prospect of disciplinary
proceedings." Id. at 236. Accordingly, we remanded for the district court to
consider whether the provisions at issue violated 411 of the LMRDA. See
id.13
40
freedom of speech claim. See id. at 153 ("[C]courts have responded by making
clear that labor organizations properly exercise their disciplinary powers only
over a limited area of proscribed conduct inimical to the union as an entity and
collective bargaining mechanism. Unless statements fall into these categories,
they are protected from union action even if libelous.").
41
Both Mallick and Semancik illustrate the broad protection the LMRDA affords
speech rights in the union context, and demonstrate that we may view the harm
caused by regulation of such speech somewhat differently from the harm or
injury occurring in other contexts. Both cases also reflect the wide discretion
granted to district courts so that they may fashion remedies that satisfy these
concerns. These factors are present in the instant case, and lead us to the same
Conclusion that we reached in Mallick -- that the District Court should have
considered whether equitable and declaratory relief was appropriate.
Ruocchio's reinstatement and the reversal of the charges against him no more
automatically foreclose his rights to additional relief than the reversal of the
charges did in Mallick; the remedies sought by Ruocchio of an injunction
against enforcement of the constitutional provision, and declaration of its
invalidity, may indeed retain sufficient utility to justify their implementation. In
both of these cases, we reiterated in broad and expansive terms the need for the
courts to entertain, and enjoin, union exercise of power that chills speech
protected by the LMRDA. To conclude, as the Dissent does, that these
important rulings do not support our Conclusion is to turn our jurisprudence on
its head.
42
Our Dissenting colleague urges that our ruling opens the flood gates to union
members' protests against valid union regulation based upon the "sole" "bald"
allegation that their speech has been "chilled." Rather than take issue with this
view, we embrace this characterization as a fair statement of what the law
requires. Our jurisprudence compels us to give a union member the opportunity
to protect his right to speak his views as legislatively mandated by 411(a)(2)
of the LMRDA. In so doing we suggest that the harm it seeks to avoid is very
real, and the power it seeks to curtail can be wielded in ways not apparent on
the face of a union constitution. See Mallick, 644 F.2d at 235; Semancik, 466
F.2d at 152.
43
more complicated inquiries. As this case was dismissed without the aid of any
discovery, we cannot begin to address these issues and must entrust them to the
District Court for resolution on remand.
44
We will also vacate the District Court's ruling denying plaintiffs' request for
attorney's fees. To recover attorney's fees under the LMRDA, a claimant must
be a prevailing party and his lawsuit must provide a common benefit to all
union members. See Pawlak v. Greenawalt, 713 F.2d 972, 980 (3d Cir. 1983).
The District Court found that Ruocchio could not recover attorney's fees
because he did not technically prevail in the case before it. We view this
decision as reflecting an inadequate inquiry into the factors set forth in Pawlak.
On remand, the District Court will necessarily revisit its ruling based on the
outcome of the monetary, equitable, and declaratory claims for relief it will
now hear as discussed above, and in doing so, should reconsider the Pawlak
factors. We note that, for purposes of Pawlak's "prevailing party" requirement,
Ruocchio need not obtain ultimate success in the form of a judgment in order to
be entitled to attorney's fees. See Baumgartner v. Harrisburg Housing Auth., 21
F.3d 541, 544 (3d Cir. 1994); Brennan v. United Steelworkers of Am., 554 F.2d
586, 591 n.5 (3d Cir. 1977). Rather, if plaintiffs have been a "catalyst," so that
defendants voluntarily ceased the behavior challenged by plaintiffs, plaintiffs
can still be "prevailing parties" if they prove that the lawsuit was a material
contributing factor in bringing about the desired relief. See Baumgartner, 21
F.3d at 544-45 (citing Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128, 132
(3d Cir. 1991)); see also Riley v. McCarthy, 723 F. Supp. 1521, 1522 (D.D.C.
1989) (finding that an LMRDA plaintiff is a "prevailing party" even absent
judgment on the merits as long as the lawsuit was not frivolous, the plaintiff
substantially obtained the relief sought, and the lawsuit was an important factor
in obtaining that relief). Further, plaintiffs may satisfy Pawlak's common
benefit requirement if, by vindicating their rights under the LMRDA, they have
"dispelled the `chill' cast upon the rights of all Union members and contributed
to the preservation of union democracy." Pawlak, 713 F.2d at 980.
IV.
45
For all of the foregoing reasons, we will reverse the District Court's
determination that plaintiffs' lawsuit was moot, vacate the District Court's
denial of attorney's fees, and remand to the District Court for proceedings
consistent with this opinion.
Notes:
Copies of the letter were sent to "S. Padelski, L #60" and "B. Walsh, Sec. #60."
The union Trial Board noted that the letter was read at the monthly union
meeting on September 28, 1997 during Ruocchio's treasurer's report.
It appears that the formal charge was not forwarded to Ruocchio until October
31, 1997.
In three letters, two dated November 7, 1997, and one dated November 11,
1997, Ruocchio asked the International President for a ruling that the charge
against him violated the LMRDA and the UTU constitution, and complained
that the Trial Board scheduled to preside at his hearing was politically partisan
and biased against him. The International President refused to intervene while
the Trial Board hearing and decision were pending.
Only two charges listed in the "Causes of Action" section of the complaint refer
specifically to D'Angiolillo: the 411(a)(1) charge, and the 411(a)(2) charge
that Article 78 "infringes and chills the exercise of plaintiffs' free speech
rights." The complaint's prayer for relief does not specify what, if any, relief
D'Angiolillo is seeking; in fact, in requesting relief, it refers to "plaintiff " in the
singular. We assume that D'Angiolillo intended that his claims be remedied by
Ruocchio's reinstatement, and the other equitable and declaratory relief sought
by Ruocchio as "plaintiff." We therefore discuss the relief that Ruocchio seeks,
and do not address separately any relief sought by D'Angiolillo. This does not
mean that D'Angiolillo could not seek to clarify his position in this regard on
remand to the District Court.
Plaintiffs also requested injunctive relief prohibiting the union trial from going
forward, and reinstating Ruocchio to his position as treasurer. These claims for
relief are clearly moot, in light of the fact that the union trial has already taken
place, and that Ruocchio has already been reinstated.
10
The Dissent cites Linn v. United Plant Guard Workers of America, Local 114,
383 U.S. 53, 63 (1966), for the proposition that libelous statements of union
members are not protected from union action. Although there is language in
Linn suggesting that unions should adopt procedures proscribing libelous
speech, Linn ultimately dealt with a civil action against libelous speech, not
union action against libelous speech. See id. at 55. As noted above, Salzhandler
distinguished between the two, finding that speech that may be the basis of a
civil action might not be an appropriate basis for union action. See Salzhandler,
316 F.2d at 450-51. Thus, Linn is not inconsistent with Salzhandler's
Conclusion that unions may not proscribe libelous speech.
11
Cases addressing standing are relevant to our inquiry because the question of
standing "bears close affinity" to the question of mootness. See Warth v. Seldin,
422 U.S. 490, 499 n.10 (1975). Both standing and mootness involve the
consideration of whether an Article III case or controversy exists. See id. at
498; Kelly, 815 F.2d at 914. In dismissing the instant case, the District Court
equated mootness with the absence of a case or controversy. Mootness has been
described as representing "a time dimension of standing, requiring that the
interests originally sufficient to confer standing persist throughout the suit."
WRIGHT ET AL., supra, 3533.1, at 220. We adopted a similar view in
Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996), in which we
explained that mootness "asks whether a party who has established standing has
now lost it because the facts of her case have changed over time." Id. at
footnote12.
12
The Dissent characterizes plaintiff 's claim arising from the application of
Article 78 to him as an "abstract" injury, rather than one that is "distinct" and
"palpable." We submit, however, that in the context of union speech, a claim
that rights have been chilled has been deemed anything but abstract. See
Mallick v. International Bhd. of Elec. Workers, 644 F.2d at 235.
13
While our Dissenting colleague seeks to distinguish Mallick based on the actual
injury in that case, our focus in Mallick was not on the extent of union reprisal
but, rather, on the harm visited in non-economic terms via the chill on, and
deterrence of, the right of expression. See Mallick, 644 F.2d at 235-36.
46
47
The Supreme Court has consistently made clear that lies and willful defamation
are not shielded by the expansive reach of the First Amendment. Yet, the
majority suggests that a provision of a union constitution, which prohibits this
same type of defamation, creates a chilling effect on speech sufficient to create
a justiciable controversy in a case pursuant to the Labor-Management
Reporting and Disclosure Act ("LMRDA"). This Conclusion is unacceptable to
me. I Dissent.
48
This appeal requires us to decide whether the district court erred by dismissing
Appellants' claims as moot after Eugene Ruocchio was reinstated to the office
of treasurer of United Transportation Local #60 on June 10, 1998. Ruocchio
was first suspended from that office on October 27, 1997, pending a trial board
hearing on a charge that he violated Article 78 of the Union Constitution, and
was removed from office on April 10, 1998 after the board found him guilty.
Article 78 provides:
49
"A member who willfully circularizes untrue statements shall be expelled from
membership in the United Transportation Union if, after being charged and
tried under the trial provisions of this Constitution, his/her guilt has been
established."
50
Article III of the Constitution confines the judicial power by extending it only
to cases and controversies." `All of the doctrines that cluster about Article III-not only standing but mootness, ripeness, political question, and the like--relate
in part, and in different though overlapping ways, to an idea, which is more
than an intuition but less than a rigorous and explicit theory, about the
constitutional and prudential limits to the powers of an unelected,
unrepresentative judiciary in our kind of government.' " Allen v. Wright, 468
U.S. 737, 750 (1984) (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 11781179 (D.C. Cir. 1982) (Bork, J., Concurring)).
52
As early as 1937, the Court made clear that a genuine case or controversy is
necessary for the federal courts to grant relief to litigants. Aetna Life Ins. Co. of
Hartford, Conn. v. Haworth, 300 U.S. 227, 239-240 (1937) (interpreting the
Declaratory Judgment Act). The court enunciated precepts that define "case or
controversy":
53
"A "controversy" in this sense must be one that is appropriate for judicial
determination. A justiciable controversy is thus distinguished from a difference
or dispute of a hypothetical or abstract character; from one that is academic or
moot. The controversy must be definite and concrete, touching the legal
relations of parties having adverse legal interests. It must be a real and
substantive controversy admitting of specific relief through a decree of
conclusive character, as distinguished from an opinion advising what a law
would be upon a hypothetical state of facts."
54
55
Thus, Article III requires a party seeking relief to allege personal injury that is
fairly traceable to the defendant's allegedly unlawful conduct and likely to be
redressed by the requested relief. See Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472
(1982). The injury alleged must be distinct and palpable, Gladstone, Realtors v.
Village of Bellwood, 441 U.S. 91, 100 (1979), and not "abstract" or
"conjectural" or "hypothetical," City of Los Angeles v. Lyons, 461 U.S. 95,
101-102 (1983); O'Shea v. Littleton, 414 U.S. 488, 494 (1974). In the absence
of such an injury, the requirements of Article III are not satisfied and the district
court does not have jurisdiction to entertain the action before it.
II.
56
57
58
"Every member of any labor organization shall have the right to meet and
assemble freely with other members; and to express any views, arguments, or
opinions; and to express at meetings of the labor organization his views, upon
candidates in an election of the labor organization or upon any business
properly before the meeting, subject to the organization's established and
reasonable rules pertaining to the conduct of meetings: Provided That nothing
herein shall be construed to impair the right of a labor organization to adopt and
enforce reasonable rules as to the responsibility of every member toward the
organization as an institution and to his refraining from conduct that would
interfere with its performance of its legal or contractual obligations."
60
61
62
United Steelworkers of America, 457 U.S. at 110 (quoting 105 Cong. Rec.
6721, 6722 (1959) (statements of Sen. Cooper and Sen. Church)). Thus, we
must determine whether Article 78 qualifies as one of the permitted "reasonable
rules" under 411(a)(2). If it is a reasonable rule, there is no justiciable
controversy in this case.
A.
63
"Congress adopted the freedom of speech and assembly provision [of the
LMRDA] in order to promote union democracy." Id. at 112. To understand the
breadth of union democracy, we must ascertain the limitations to speech in the
broader community in which we live, under a political democracy. Because the
First Amendment provides greater protection for speech, any limitation of its
protection applies a fortiori to the protections of 411(a)(2).
64
Even under the broader limitations of the First Amendment, our speech is
restricted by the law of defamation and the criminal statutes that proscribe or
punish lying under oath. The law of defamation, for example, imposes liability
for any statement that "asserts or implies a statement of fact which is damaging
to reputation." Sedore v. Recorder Publishing Co., 716 A.2d 1196, 1200 (N.J.
Super. Ct. App. Div. 1998); see also Sisler v. Gannett Co., Inc., 516 A.2d 1083,
1086-1088 (N.J. 1986) (discussing cases that "attempt to pacify the warring
interests of free speech and individual reputation"). Numerous state and federal
laws prohibit the making of false statements under oath, "under penalty" or to
law enforcement officers. See, e.g., 18 U.S.C. 1621 (perjury); 18 U.S.C.
1623 (false declarations before grand jury or court); N.J. Stat. Ann. 2C:28-1
(perjury); N.J. Stat. Ann. 2C:28-2 (false swearing); N.J. Stat. Ann. 2C:28-3
(unsworn falsification to authorities); N.J. Stat. Ann. 2C:28-4 (false reports to
law enforcement authorities).
65
Whatever have been the recent efforts in some quarters to denigrate the
importance of telling the truth, society still places a premium on truth-telling
and a penalty for violating the precepts prohibiting lying under oath. Even the
President of the United States is not immune from such penalties. See Jones v.
Clinton, 36 F. Supp.2d 1118, 1130, 1131 (E.D. Ark. 1999) (adjudging the
President to be in civil contempt because his "deposition testimony regarding
whether he had ever been alone with Ms. Lewinsky was intentionally false, and
his statements regarding whether he had ever engaged in sexual relations with
Ms. Lewinsky likewise were intentionally false, notwithstanding tortured
definitions and interpretations of the term `sexual relations.' ").
66
67
"[T]he use of the known lie as a [political] tool is at once at odds with the
premises of democratic government and with the orderly manner in which
economic, social, or political change is to be effected. . . . [T]he knowingly false
statement and the false statement made with reckless disregard of the truth, do
not enjoy constitutional protection."
68
Garrison v. State of Louisiana, 379 U.S. 64, 75 (1964). Even in New York
Times Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny in actions against
public officials, the First Amendment does not shield the publication of
defamatory falsehood made " `with actual malice'--that is, with knowledge that
it was false or with reckless disregard of whether it was false or not." Id. at 280.
B.
69
official from making a statement with knowledge that it is false, there can be no
doubt that 411(a)(2) does not protect a union member from the consequences
of his own willful circularization of untrue statements. Thus, a union rule
restricting this practice cannot be considered unreasonable. Cf. Linn v. United
Plant Guard Workers of America, Local 114, 383 U.S. 53, 55 (1966)
(determining that, in the context of national labor policy, a district court has
jurisdiction to entertain a civil action for libel instituted under state law by a
party to a labor dispute).
70
71
"It is hereby declared to be the policy of the United States to eliminate the
causes of certain substantial obstructions to the free flow of commerce and to
mitigate and eliminate these obstructions when they have occurred by
encouraging the practice and procedure of collective bargaining and by
protecting the exercise by workers of full freedom of association, self
organization, and designation of representatives of their own choosing, for the
purpose of negotiating the terms and conditions of their employment or other
mutual aid or protection."14
72
73
74
Ch. 372, 1, 49 Stat. 449. Finally, the Labor Management Relations Act states:
75
76
29 U.S.C. 151. Thus, we must recognize that the fundamental purpose of the
United Transportation Union Local #60 was to permit members to organize and
bargain collectively for terms and conditions of employment in order to offset
the economic, social and political power of employers.
77
78
79
80
81
The majority determines that certain precedents of this court dictate that
Appellants' case is still alive because Appellants asserted declaratory and
equitable claims in addition to their claims for monetary relief. See Maj. Op. at
83
84
"We noted that the mere fact that the members were charged, as well as the
possibility of future charges based on the challenged prohibitions, could have a
substantial chilling effect on plaintiffs' and other union members' exercise of
their free speech rights: "The goal of union democracy, achieved through the
expression of opposing viewpoints, would be difficult to realize if members felt
deterred from expressing their opinions by the prospect of disciplinary
proceedings."[Mallick, 644 F.2d] at 236. Accordingly, we remanded for the
district court to consider whether the provisions at issue violated 411 of the
LMRDA.
85
Id."
86
Maj. Op. at 16. This intimates that the only injury suffered by the Mallick
plaintiff union members was the chilling of their free speech rights. In fact, in
Mallick , there was substantial economic injury averred as well as "the spectre
of punishment" for engaging in protected activity. For example, the Mallick
plaintiffs alleged harassment for talking to newsmen and communicating with
the National Labor Relations Board, Congressmen and Labor Department
officials. They also claimed retaliation by the union in the form of less
desirable job assignments. We stated that "[t]hese claims of emotional distress
and economic injury were deemed sufficient to support damage awards by the
jury, and they confer standing to challenge the validity of a union constitution
which was invoked to punish them for protected conduct." Mallick, 644 F.2d at
236.
87
88
The majority believes that the material facts of this case and those of Mallick
are identical or substantially similar. This suggestion does not reflect the
complete material or adjudicative facts in that case. As stated above, the
Mallick plaintiffs were charged for clearly protected activity and received less
desirable job assignments.
89
90
Allegheny General Hospital v. Nat'l Labor Relations Bd., 608 F.2d 965, 969970 (3d Cir. 1979) (footnote omitted and emphasis added). Mallick does not
qualify as a legal precedent for this case because the basic differences in
material or adjudicative facts outweigh the resemblances to qualify it as a
proper analogy.
B.
91
93
See Semancik, 466 F.2d at 147 (emphasis added). We held that Section 10
"presents a threat and obstacle to free speech because it is so vague and illdefined that whenever a union member might exercise the right guaranteed to
him under the LMRDA, he is in peril of violating the provision. In response to
such a union rule, a reasonable man might well refrain from taking full
advantage of his rights." Id. at 153-154.
94
I am unwilling to equate the "vague and ill-defined" Section 10 with the clear
and unambiguous terms of Article 78, which prescribes penalties for any
member who "willfully circularizes untrue statements." The average union
member would certainly understand what is meant by "untrue statements" or
"circularizes." This is a far cry from the obtuse expressions in Semancik:
"dishonest or questionable practices." Nor can we fault the use of the word
"willfully," in the sense that this means intentionally or knowingly as
distinguished from accidentally or negligently. Were we to hold otherwise,
hundreds of federal criminal statutes in Title 18 of the United States Code
would suffer the same lethal fate. I therefore have no difficulty in
distinguishing Article 78 in this union's constitution from the condemned
Article X, Section 10 in the United Mine Workers constitution in Semancik.
95
Nor does the following portion of the Semancik opinion, relied upon by the
majority, give effective support to its theory:
96
97
Id. at 153, quoted in Maj. Op. at 17. Consistent with Semancik, Article 78 does
prohibit "conduct inimical to the union as an entity and the collective
bargaining mechanism." As stated in detail above, see supra Part III, the mantra
of organized labor is "In union, there is strength." By proscribing the willful
99
Notes:
14
National labor policy was first announced in the National Industrial Recovery
Act of 1933:
"Sec.7. (a) Every code of fair competition, agreement, and license approved,
prescribed, or issued under this title shall contain the following conditions: (1)
That employees shall have the right to organize and bargain collectively
through representatives of their own choosing, and shall be free from the
interference, restraint, or coercion of employers of labor, or their agents, in the
designation of such representatives or in self-organization or in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection; (2) that no employee and no one seeking employment shall be
required as a condition of employment to join any company union or to refrain
from joining, organizing, or assisting a labor organization of his own choosing;
and (3) that employers shall comply with the maximum hours of labor,
minimum rates of pay, and other conditions of employment, approved or
prescribed by the President.
" National Industrial Recovery Act of 1933, ch. 90, 7(a), 48 Stat.195, 198
(1933) (held invalid by A.L.A. Schecter Poultry Corp. v. United States, 295
U.S. 495 (1935)).