Medford et al v. The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO; CSEA Local 881 et al

Filing 50

ORDER granting 20 Motion to Dismiss for Failure to State a Claim; granting 24 Motion to Dismiss for Lack of Jurisdiction. For the reasons set forth herein, the Court grants defendants' motions to dismiss for lack of subject matter jurisdi ction because Local 881 is a public sector union not subject to the LMRDA. Given the dismissal for lack of subject matter jurisdiction under the LMRDA, the Court dismisses plaintiffs' state law claims without prejudice to plaintiffs attempting to bring them in state court. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/5/2017. (Karamigios, Anna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 17-CV-0011 (JFB) (SIL)
_____________________

JOHN MEDFORD, JAMES BALDUCCI, JOSEPH BONSIGNORI, ROBERT MCKNIGHT,
ANTHONY ORLOWSKI, ALFONSO V. GALLUCCIO, ANDREW ETERGINEOSO, ANGELO
TABONE, ANTHONY BOHUR, ANTHONY PECCIA, ANTHONY SODANO, BRIAN
DIEMICKE, BRIAN LOOMIS, BRYON FERRERI, CARMINE DEVIVO, CARMINE RUSSIO,
CHRISTIAN MCQUADE, DAN MATTEO, DANIEL MULLEN, DAVID LLOYD, DUMONE
LUCARELLI, ERIC STEVENS, ERNEST SCHIEFERSTEIN, EUGENE PASSOLO, FRANK
DESALVO, FRANK FAMIGLIETTI, FRANK J. GANDIOSI, FRANK MELILLO, GERALD S.
FORBES, HENRY C. GUNDERMAN, HENRY F. PETERS, JACOB ALTNIER, JAMES
SMILLIE, JAMES VANNETTER, JOHN CATTAGIONE, JOHN FINK, JOHN HUTTLE, JR.,
JOHN LAMENDOLA, JOHN KOZIKOWSKI, JOSEPH CERELLA, JOSEPH HESS, JP PUGLIA,
KEVIN ESPOSITO, KEVIN MCCLOREY, KEVIN REYNOLDS, LOUIS S. PONTILLO, MARK
SEHER, MICHAEL COMMISSO, MICHAEL DELLWIN, MICHAEL MAYER, MICHAEL
MOYLAN, MICHAEL PACARIELLO, MICHAEL SORRENTINO, MIKE DESALVO,
NICHOLAS LAMANNA, NICK TARDO, PASQUALE MUSCARELLA, PAUL GARGANO,
RICHARD FRANKAITIS, RICHARD N. WEISS, RICHARD SANDIFORD III, ROBERT
ANDERSON, ROBERT S. MERBITZ, ROBERT STAWKOWSKI, ROBERT T. QUARESIMO,
ROBERT TABONE, RODRISO A. MUJICA, SCOTT D. SAUM, SCOTT D’AMICO, STEVE
BAITENKART, STEVEN MICHALOWSKI, THOMAS MARCIAN, TIMUR YILMAZ, VINCENT
CAHILL, VINCENT CARBONE, VINCENT CICCOLELLA SR., WALTER WAGNER,
WILLIAM FOX, ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED,
Plaintiffs,
VERSUS

THE CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME,
AFL-CIO, CSEA LOCAL 881, JARVIS T. BROWN, TOWN OF OYSTER BAY, AND JOHN
DOES 1-10,
Defendants.
___________________

1

MEMORANDUM AND ORDER
December 5, 2017
___________________

JOSEPH F. BIANCO, District Judge:

bargaining agreement (“CBA”), they are
effectively private sector employees, and
transform Local 881 into a mixed union that
is subject to LMRDA jurisdiction. The
Court disagrees.
These employees,
notwithstanding their work on behalf of
Local 881, remain public employees, and
Local 881 does not represent any members
(including those three public employees) in
any negotiations with private sector
employers. Accordingly, because Local 881
is not a mixed union and thus is not a “labor
organization” under the LMRDA, the Court
lacks subject matter jurisdiction under the
LMRDA. In light of the lack of subject
matter jurisdiction, there is no basis to
exercise supplemental jurisdiction over
plaintiffs’ state law claims. Accordingly,
the state law claims are dismissed without
prejudice to being brought in state court.

Plaintiffs bring this putative class action
on behalf of themselves and similarly
situated individuals against the Civil Service
Employees Association, Inc., Local 1000,
AFSCME, AFL-CIO, CSEA Local 881
(“Local 881”), Jarvis T. Brown (“Brown”),
the Town of Oyster Bay (the “Town”), and
John Does 1-10 (collectively, “defendants”),
alleging
violations
of
the
Labor
Management Reporting and Disclosure Act
of 1959 (“LMRDA” or “the Act”),
29 U.S.C. § 400, et seq. and New York state
law.
Plaintiffs also request punitive
damages and attorney’s fees.
Presently before the Court are
defendants’ motions to dismiss for lack of
subject matter jurisdiction and for failure to
state a claim.1 For the reasons set forth
below, the Court grants defendants’ motions
to dismiss for lack of subject matter
jurisdiction over the LMRDA claims. In
particular, the uncontroverted record
demonstrates that Local 881 represents only
public
sector
employees—namely,
employees of the Town of Oyster Bay, a
political subdivision of New York State.
Therefore, Local 881 is not subject to the
LMRDA, which does not apply to public
sector unions, and no federal subject matter
jurisdiction exists over plaintiffs’ lawsuit.
Plaintiffs argue that, because three Town
employees perform union-related work for
Local 881 pursuant to a collective

I. BACKGROUND
A. Facts
The following facts are taken from the
Amended Complaint (“Compl.”), ECF No.
12; the Declaration of John Medford, dated
July 17, 2017 (“Medford Decl.”), ECF No.
39; the Declaration of Leslie C. Perrin, dated
May 10, 2017 (“May 10, 2017 Perrin
Decl.”), ECF No. 21, and Exhibit C attached
thereto, ECF No. 21-3; and the Declaration
of Leslie C. Perrin, dated November 8, 2017
(“Nov. 8, 2017 Perrin Decl.”), ECF No. 49.
The Town is a municipality in Nassau
County, New York. (Compl. ¶ 4.) Plaintiffs
are employed by the Town’s sanitation
department. (Medford Decl. ¶¶ 2-3.) Local
881 is a union that represents Town
employees,
including
plaintiffs,
in

1
Local 881 and Brown jointly moved to dismiss.
(ECF No. 20.) The Town separately moved to
dismiss. (ECF No. 24.) All defendants argue that the
Court lacks subject matter jurisdiction and that
plaintiffs have failed to state a claim for relief.

2

negotiations with the Town regarding their
terms of employment.2 (See Compl. ¶¶ 2, 6,
14.)

On February 25, 2017, plaintiffs filed the
instant Amended Complaint against
defendants. Plaintiffs again allege that
defendants violated their statutory rights
under the LMRDA to participate in
deliberations regarding the CBA and to
attend the January 3, 2017 meeting, and that
the CBA’s terms unfairly discriminate
against sanitation department employees in
violation of defendants’ duty of fair
representation under New York state law.3

In December 2016, Local 881 and the
Town began negotiating a CBA to replace
their existing CBA, which was set to expire
at the end of that month. (See Compl. ¶¶ 7,
14.)
Those negotiations resulted in a
memorandum of understanding (“MOU”),
which was subject to ratification by the
members of Local 881 and the Town Board.
(See Compl. ¶¶ 22-24.) Accordingly, on
December 28, 2016, Local 881 announced
on its website that a meeting would be held
on January 3, 2017 to explain the MOU’s
provisions, and that a vote on whether to
ratify the MOU would be held on January 4,
2017. (Compl. ¶¶ 17-18.)

B. Procedural History
Plaintiffs filed a complaint and motion
for a temporary restraining order on January
3, 2017. (ECF Nos. 1, 4.) The Court denied
that motion on the same day. (ECF No. 8.)
Plaintiffs filed the Amended Complaint on
February 25, 2017.
(ECF No. 12.)
Defendants moved to dismiss on May 10,
2017. (ECF Nos. 20, 24.) Plaintiffs
opposed on July 7, 2017 (ECF Nos. 29, 40),
and defendants replied on July 25, 2017
(ECF Nos. 43, 44). The Court heard oral
argument on the motions to dismiss on
November 1, 2017. On November 8, 2017,
at the Court’s direction, defendants Local
881 and Brown filed a supplemental
declaration. (ECF No. 49.) The Court has
fully considered the submissions and
arguments of the parties.

On January 3, 2017, plaintiffs filed a
complaint and motion for a temporary
restraining order in attempt to prevent
Local 881 from holding a vote on whether to
ratify the MOU. (See ECF Nos. 1, 4.)
Plaintiffs argued that Local 881 and the
Town had infringed on their statutory rights
to participate in deliberations regarding the
MOU and to attend the January 3, 2017
meeting. (See ECF No. 4.) They further
asserted that the MOU’s terms unfairly
discriminated against sanitation department
employees in violation of defendants’ duty
of fair representation under New York state
law. (See id.) The Court denied plaintiffs’
motion for failure to demonstrate irreparable
harm (see ECF No. 8), and the members of
Local 881 ratified the MOU on January 4,
2017 (Compl. ¶¶ 18, 22). The Town Board
later ratified the MOU on January 10, 2017.
(Compl. ¶ 24.)

II. STANDARD OF REVIEW
Relevant here are Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), which
respectively govern motions to dismiss for
lack of subject matter jurisdiction and for
failure to state a claim. The following

3
Plaintiffs also allege that the CBA’s mandatory
arbitration provision violates the LMRDA, and
should be stricken. (Compl. ¶¶ 65-68.) Because the
Court dismisses the LMRDA claims for lack of
subject matter jurisdiction, it does not reach this
issue.

2

Brown is Local 881’s President. Although plaintiffs
name Brown as a defendant, the Amended Complaint
does not include any allegations involving him in his
individual capacity.

3

standards of review are applicable to
motions brought under these rules.

Annuity Trust Fund v. Smith Barney Fund
Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010)
(quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). This standard does
not require “heightened fact pleading of
specifics, but only enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.

A. Subject Matter Jurisdiction
When a court reviews a motion to
dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), it “must
accept as true all material factual allegations
in the complaint, but [it is] not to draw
inferences from the complaint favorable to
plaintiffs.” J.S. ex rel. N.S. v. Attica Cent.
Schs., 386 F.3d 107, 110 (2d Cir. 2004).
The burden of proving subject matter
jurisdiction by a preponderance of the
evidence is on the plaintiff. Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635,
638 (2d Cir. 2005). “In resolving a motion
to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a district
court . . . may refer to evidence outside the
pleadings” to resolve the jurisdictional issue,
Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000) (citing Kamen v.
American Tel. & Tel. Co., 791 F.2d 1006,
1011 (2d Cir. 1986)), but a court “may not
rely on conclusory or hearsay statements
contained in the affidavits,” Attica Cent.
Schs., 386 F.3d at 110. “The consideration
of materials extrinsic to the pleadings does
not convert the motion into one for summary
judgment.” Kim v. Ashcroft, 340 F. Supp.
2d 384, 387 (S.D.N.Y. 2004).

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth two principles for a
district court to follow in deciding a motion
to dismiss. 556 U.S. 662 (2009). First,
district courts must “identify[] pleadings
that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” Id. at 679. “While
legal conclusions can provide the framework
of a complaint, they must be supported by
factual allegations.” Id. Second, if a
complaint contains “well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to
relief.” Id.
III. DISCUSSION
A. Subject Matter Jurisdiction under the
LMRDA
Section 412 of the LMRDA confers
federal jurisdiction over suits by persons
alleging that their statutory rights were
infringed by a “labor organization.”
See 29 U.S.C. § 412. The Act defines a
“labor organization” as an entity that “exists
for the purpose, in whole or in part, of
dealing with employers” regarding various
terms of employment.
Id. § 402(i)
(emphasis added). “State[s] or political
subdivisions thereof” are not “employers”
under the Act. Id. § 402(e). Thus, unions
that
represent
only
public
sector
employees—i.e., employees of “State[s] or
political subdivisions thereof”—are not

B. Failure to State a Claim
In reviewing a motion to dismiss under
Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006). “In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint
must allege a plausible set of facts sufficient
‘to raise a right to relief above the
speculative level.’” Operating Local 649
4

subject to the LMRDA.
See, e.g.,
Cunningham v. Local 30, Int’l Union of
Operating Eng’rs, 234 F. Supp. 2d 383, 391
(S.D.N.Y. 2004); Commer v. McEntee, 121
F. Supp. 2d 388, 394 (S.D.N.Y. 2000), aff’d,
15 F. App’x 21 (2d Cir. 2001).

Here, defendants assert that Local 881
represents only public sector employees and
is thus not subject to the LMRDA. In
support, defendants have submitted an
affidavit from counsel to Local 881 attesting
that “every member of Local 881 is an
employee of the Town” and that, conversely,
Local 881 “does not include any non-Town
employees.” (Nov. 8, 2017 Perrin Decl. ¶ 5;
see also May 10, 2017 Perrin Decl. ¶ 6
(“Local 811 is comprised exclusively of
Town employees.”).)5

In contrast, mixed unions, which
represent both public and private sector
employees, are covered by the LMRDA.
See, e.g., Cunningham, 234 F. Supp. 2d at
391 (collecting cases).
The “mere
membership” of private sector employees is
insufficient to establish a mixed union. See,
e.g., Rodriguez v. Haynes, 341 F. Supp. 2d
416, 422 (S.D.N.Y. 2004); Lynch v.
Patrolmen’s Benevolent Ass’n, No. 99 CIV.
63 LAP, 1999 WL 713369, at *1 (S.D.N.Y.
May 18, 1999). Instead, a union must
actually represent private sector employees
in negotiations with their employers to be
subject to the LMRDA.
See, e.g.,
Rodriguez, 341 F. Supp. 2d at 422-23
(“[O]nly a union that actually represents
private sector union members is a ‘labor
organization’ for purposes of conferring
LMRDA jurisdiction.”); Lynch, 1999 WL
713369, at *1 (“[T]he issue of whether or
not it is a mixed union is determined by
representation rather than just mere
membership.”).4

In opposition, plaintiffs argue that Local
881 is a mixed union because some of its
members do not perform work for the Town,
and instead perform only union-related
work.
According to plaintiffs, those
members are effectively Local 881
employees, not Town employees. Plaintiffs
identify three such Local 881 members:
(1) Brown, Local 881’s President and a
Labor Supervisor for the Department of
Public Works; (2) Pat Davino, Local 881’s
First Vice President and a Sanitation Worker
for the Department of Public Works; and
(3) Betsy Healey, Local 881’s Executive
Vice President and a Grants Technician in
the Town’s Intergovernmental Affairs
Office. (See Medford Decl. ¶¶ 7-9; Nov. 8,
2017 Perrin Decl. ¶¶ 7-9.) Each of these
individuals is a Town employee and Local
881 member that was elected by the
members of the union to serve on its
bargaining unit. (See Nov. 8, 2017 Perrin
Decl. ¶¶ 6-9.) Pursuant to the CBA, they
were also each released from their regular

4

The Second Circuit has not directly considered
whether the membership of private sector employees
alone is sufficient to subject a union to the LMRDA.
Other circuit courts have held that actual
representation is required. See, e.g., Meredith v. La.
Fed’n of Teachers, 209 F.3d 398, 405 (5th Cir. 2000)
(Whether a union “actually bargains with private
sector employers” is the “determinative question on
subject matter jurisdiction over an LMRDA claim.”);
Thompson v. McCombe, 99 F.3d 352, 354 (9th Cir.
1996) (“[T]he important question is . . . whether the
union currently deals with or represents private sector
employees.”); Berardi v. Swanson Mem’l Lodge No.
48 of the Fraternal Order of Police, 920 F.2d 198,
201 (3d Cir. 1990) (“The mere fact that a
union admits some members who work for private
employers is not enough to bring the union within

[the LMRDA].” (emphasis in original)). Although
not binding, the Court finds the analysis in those
cases to be persuasive.
5

Plaintiffs were given an opportunity to dispute any
factual inaccuracies in the supplemental November 8,
2017 Perrin Declaration. Plaintiffs, however, did not
submit any response.
Thus, for purposes of
considering whether the Court has subject matter
jurisdiction, those facts are uncontroverted.

5

duties to administer the CBA and process
grievances for Local 881 members.6 (Id.)
Plaintiffs do not dispute that Brown, Davino,
and Healey are paid by the Town, or that
they retain their civil service job titles while
on release. Instead, plaintiffs argue that,
because these individuals perform only
union-related work, they are actually
employed by Local 881, which is a private
sector employer.
Thus, according to
plaintiffs, Local 881 is a mixed union
subject to the LMRDA.

it also represents such members in
negotiations with private sector employers,
thus subjecting itself to the LMRDA. See,
e.g., Lynch, 1999 WL 713369, at *1 (noting
that, if the PBA represented its members
both in negotiations with the NYPD and in
negotiations with private employers
pursuant to a paid detail program, the union
would be a mixed union and the LMRDA
would apply). Here, plaintiffs have not
alleged, or otherwise demonstrated, that
Local 881 actually represented Brown,
Davino, or Healey (or any other Local 881
members) in negotiations with a private
employer. To the contrary, Local 881 has
submitted a declaration affirmatively stating
the following:

Plaintiffs’ argument misses the mark.
The fact that Brown, Davino, and Healey
were released from their regular duties for
the Town to administer the CBA and
process grievances for Local 881 members
does not transform these public employees
into union employees. To the contrary, they
are still paid by the Town, continue to
receive service credit in the New York State
Local Employees Retirement System, and
retain their civil service job titles. (See Nov.
8, 2017 Perrin Decl. ¶¶ 6-9, 11; Medford
Decl. ¶¶ 7, 9.) In fact, if any of these
individuals were to lose their status as a
Town employee, they would be ineligible to
serve as a Local 881 officer. (Nov. 8, 2017
Perrin Decl. ¶ 6.) Therefore, under these
circumstances, the Court declines to find
that Brown, Davino, and Healey are Local
881 employees based solely on the fact that
they currently perform union-related work,
and concludes that they remain public sector
employees for purposes of the LMRDA.
Accordingly,
plaintiffs
have
not
demonstrated that Local 881’s members
include private sector employees.

“[T]hese [three officers] are not
represented by [Local 881] in
connection with private employment
or in any dealings with a private
employer. Rather, as elected officers
of CSEA Local 881, Mr. Brown, Ms.
Healey, and Mr. Davino are
members of the negotiating team that
engages with the Town to reach an
agreement with regard to the terms
and conditions of employment of the
Town employees covered within the
bargaining
unit,
including
themselves.”
(Nov. 8, 2017 Perrin Decl. ¶ 12.) The Court
thus concludes that the mere fact that these
three individuals perform work for the union
does not, in any way, demonstrate that the
union represents them in connection with a
private employer. To the extent plaintiffs
suggest this union-related work means that
the union represents them in negotiations
with the union itself, the Court rejects that
argument. A union cannot represent its own
employees in negotiations with itself. Thus,
even assuming arguendo that Brown,
Davino, and Healey were considered union
employees (which they are not), the

Moreover, this is not a situation where a
union that generally represents public
employees becomes a mixed union because
6

The CBA permits a maximum of four of Local
881’s eleven officers to be released from their typical
duties to perform union-related work. (See May 10,
2017 Perrin Decl. Ex. C, Art. III, Section 4(B), (D).)

6

Accordingly, given the lack of subject
matter jurisdiction under the LMRDA, the
Court cannot exercise supplemental
jurisdiction over plaintiffs’ state law claims
for breach of the duty of fair representation
and for punitive damages and attorney’s
fees, and dismisses those claims without
prejudice to plaintiffs attempting to bring
them in state court.

LMRDA would still not apply because
Local 881 does not negotiate with any
private employer on their behalf.
The court in Rodriguez reached the same
conclusion. 341 F. Supp. 2d at 422-23.
There, the court considered “whether a
union, though largely comprised of members
employed by the public sector, is
nevertheless considered a mixed union
because a small number of its members are
employed by the union itself, a private
sector entity.” Id. at 422. The plaintiffs
argued that “the court should ‘presume that
employee/members of a local union
collectively bargain with the Local as
employer . . . thus creating a mixed local.”
Id. The court rejected plaintiffs’ theory as
“entirely implausible” and concluded that “a
union does not engage in collective
bargaining with itself.” Id.

IV. CONCLUSION
The Court grants defendants’ motions to
dismiss for lack of subject matter
jurisdiction because Local 881 is a public
sector union not subject to the LMRDA.
Because the Court grants defendants’
motions on this ground, it does not reach
defendants’ alternative arguments for
dismissal under Rule 12(b)(6). Given the
dismissal for lack of subject matter
jurisdiction under the LMRDA, the Court
dismisses plaintiffs’ state law claims without
prejudice to plaintiffs attempting to bring
them in state court.

In sum, because Brown, Davino, and
Healey are Town employees and Local 881
represents only public sector employees,
Local 881 is not a “labor organization”
under the LMRDA and is not subject to the
LMRDA. Accordingly, this Court lacks
subject matter jurisdiction under the
LMRDA over this lawsuit.

The Clerk of the Court shall enter
judgment accordingly and close the case.
SO ORDERED.

B. Supplemental Jurisdiction
________________________
Judge Joseph F. Bianco
United States District Judge

A district court may, in its discretion,
“decline
to
exercise
supplemental
jurisdiction over state law claims if it has
dismissed all claims over which it has
original jurisdiction.” See Kolari v. N.Y.
Presbyterian Hosp., 455 F.3d 118, 122
(2d Cir. 2006) (quoting 28 U.S.C.
§ 1367(c)(3)). However, if a court dismisses
federal claims for lack of subject matter
jurisdiction, it cannot exercise supplemental
jurisdiction over remaining state law claims.
See Nowak v. Ironworkers Local 6 Pension
Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).

Date:

December 5, 2017
Central Islip, NY
*

*

*

Plaintiffs are represented by Svetlana Sobel,
Esq., Sobel Law Offices, 175 Eileen Way,
Syosset, New York 11791. Local 881 and
Brown are represented by Leslie C. Perrin
and Aaron Edward Kaplan, CSEA Inc., 143
7

Washington Avenue, Albany, New York
12210.
The Town is represented by
Matthew M. Rozea, Office of the Town
Attorney, 54 Audrey Avenue, Oyster Bay,
New York 11771.

8