Donas v. American Federation of State, County and Municipal Employees

Filing 52

MEMORANDUM OPINION AND ORDER re: 39 MOTION for Summary Judgment filed by American Federation of State, County and Municipal Employees. The Court has considered all of the arguments raised by the parties. To the extent not specific ally addressed, the arguments are either moot or without merit. For the reasons stated above, the defendant's motion for summary judgment is granted. The Clerk is directed to enter judgment dismissing the complaint and closing the case. The Clerk is also directed to close all pending motions. (As further set forth in this Order.) (Signed by Judge John G. Koeltl on 3/12/2020) Copies Mailed By Chambers. (cf) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
HARRY G. DONAS,
Plaintiff,
- against AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES,

17-cv-1802 (JGK)
MEMORANDUM OPINION
AND ORDER

Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Harry Donas, brings this action against the
defendant, the American Federation of State, County and
Municipal Employees (“AFSCME”). On January 26, 2017, the
plaintiff filed a Petition in the Supreme Court of the State of
New York, New York County, against AFSCME pursuant to Article 78
of the New York Civil Practice Law and Rules, asserting that
AFSCME violated its constitution. The plaintiff contends that
AFSCME violated its constitution by disciplining him for
recording a meeting in contravention of a motion that had been
improperly adopted contrary to Robert’s Rules of Order, which
the constitution required to be followed. On March 10, 2017, the
defendant removed this action to this Court invoking federal
question jurisdiction under Section 301(a) of the Labor
Management Relations Act, 29 U.S.C. § 185(a) (“LMRA”). The
defendant has moved for summary judgment dismissing the
plaintiff’s claim.

I.
The standard for granting summary judgment is well
established. “The [C]ourt shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs.
L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). “[T]he trial court’s
task at the summary judgment motion stage of the litigation is
carefully limited to discerning whether there are genuine issues
of material fact to be tried, not to deciding them. Its duty, in
short, is confined at this point to issue-finding; it does not
extend to issue-resolution.” Gallo, 22 F.3d at 1224. The moving
party bears the initial burden of “informing the district court
of the basis for its motion” and identifying the matter that “it
believes demonstrate[s] the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. “Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party. See Matsushita Elec. Indus.
2

Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is
improper if there is any evidence in the record from any source
from which a reasonable inference could be drawn in favor of the
nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d
29, 37 (2d Cir. 1994). If the moving party meets its burden, the
nonmoving party must produce evidence in the record and “may not
rely simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible.” Ying Jing
Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).
II.
The following facts are undisputed unless otherwise
indicated.
The defendant is a national labor organization that
represents more than one million members, the vast majority of
whom work in public service. Def.’s 56.1 Stmt. ¶ 1. AFSCME and
its affiliates are governed by a written constitution (“AFSCME
International Constitution”) that sets forth both substantive
and procedural rights and obligations; labor organizations and
their members that are affiliated with AFSCME are bound by the
AFSCME International Constitution. Id. at ¶ 2. Civil Service
Technical Guild, Local 375 (“Local 375”) is an affiliated local
union chartered by AFSCME, that represents over 7,000 AFSCME
3

members who are employees that work for New York City and its
various agencies and other municipal entities. Id. at ¶¶ 3-4.
During the period of January, 2016 to August, 2016, the
plaintiff served as Local 375’s Civil Service Chair and Chapter
8 President and was a member of Local 375’s executive committee.
Id. at ¶ 5. The plaintiff was financially compensated for
holding these offices. Id.
On January 13, 2016, Local 375’s executive committee passed
a motion to ban the use of audio or video recording devices at
Local 375 executive committee meetings by anyone other than
Local 375’s Public Relations Chair and Recording Secretary. Id.
at ¶¶ 10, 14. During the meeting, the Executive Chair of the
executive committee had ruled that the motion was out of order,
because it was not included on the agenda for the special
meeting. Id. at ¶ 11. However, her ruling was overruled. Id. at
¶¶ 12-13.
On March 2, 2016, the plaintiff attended a Local 375
executive committee meeting and used his mobile phone to record
the proceedings. Id. at ¶ 18. George Sona, another executive
committee member, saw the plaintiff recording the proceedings
and asked him to stop. Id. at ¶¶ 19-20. The plaintiff refused.
Id. at ¶ 21. Sona and several other members of Local 375’s
executive committee filed a charge against the plaintiff with
the AFSCME Judicial Panel, under Article X, Sections 2(A) and
4

(F) of the AFSCME International Constitution. Id. at ¶ 22. The
members alleged that a motion that “no recording devices . . .
should be used by any board member to record the meeting” had
passed, but that the plaintiff had refused to turn off his
recording device when advised to do so by other board members.
Perrow Decl. Ex. C at 31.
Under Article XI, Section 8 of the AFSCME International
Constitution, an individual member of the Judicial Panel is
appointed by the Judicial Panel Chairperson to serve as the
trial officer (“Trial Officer”) to adjudicate a charge that has
been filed against a union member. Perrow Decl. Ex. A at 125-26.
The person bringing the charge to the Judicial Panel is
required, under Article X, Section 14(c) of the AFSCME
International Constitution, to “assume the burden of proof.” Id.
at 118. Article XI, Section 5 of the AFSCME International
Constitution states that “[t]he Judicial Panel shall establish
rules of procedure, which rules shall not be inconsistent with
the provisions of this Constitution.” Id. at 123. The Preamble
to the rules (“Rules of Procedure”) states that the Rules of
Procedure were established “to carry out the functions and
responsibilities of the AFSCME Judicial Panel.” Perrow Decl. Ex.
B at 3. The AFSCME Judicial Panel “recognizes that it is not a
court of law,” that it was created to resolve internal union
disputes, and that it should do so “in a manner consistent with
5

trade union principles and without resort to courts and
lawyers.” Id. Article IV, Section 2 of the Rules of Procedure
states that “[t]he Trial Officer shall have the authority,
subject to other provisions of these Rules and the International
Constitution: . . . (C) to rule on all procedural matters,
objections and motions; [and] (D) to rule on all offers of proof
and receive relevant evidence[.]” Perrow Decl. Ex. B at 10-11.
An internal union trial on the charge was held before
Richard Gollin, the Trial Officer, on June 28, 2016. Def.’s 56.1
Stmt. ¶ 31. At trial, the plaintiff raised several arguments,
including that: (1) the motion violated Robert’s Rules of Order
and was thus improperly passed; (2) the motion violated the New
York City wiretapping law; and (3) an earlier AFSCME Judicial
Panel decision provided a basis for his refusal to abide by the
motion. Perrow Decl. Ex. C at 28-29. The plaintiff candidly
admitted that he recorded the meeting: “I had the phone out. It
may have been standing up. I don’t recall. Brother Sona
obviously saw that I was recording the meeting, which I do not
deny because the phone – how else would he know? Basically I
stipulate to that.” Perrow Decl. Ex. D. at 55.
On August 12, 2016, the Trial Officer issued a written
decision (the “Trial Decision”), which found that the relevant
issue at the trial was not “the legitimacy of the motion but
rather, whether the accused had the right to ignore it.” Perrow
6

Decl. Ex. C at 29-30. The Trial Decision noted that “whether or
not this motion violates Robert’s Rules of Order is not the
subject of this hearing,” and that the plaintiff’s other
arguments, regarding the wiretapping law and the previous
decision of another Judicial Panel, were also not relevant. Id.
at 30. The Trial Decision stated that the plaintiff could have
challenged the validity of the motion separately, either on the
floor at the next meeting or by filing a charge with the
Judicial Panel. Id. Ultimately, the Judicial Panel member
concluded that the plaintiff was guilty of the charge filed
against him and issued him a formal reprimand, accompanied by a
formal warning against any repetition of any acts for which he
was found guilty. Id.
On or about September 6, 2016, the plaintiff appealed the
Trial Decision to the full AFSCME Judicial Panel. Def.’s 56.1
Stmt. ¶ 38. On September 22, 2016, the full AFSCME Judicial
Panel convened to hear from the parties, but neither of the
parties appeared. Id. at ¶ 41. On September 30, 2016, the full
AFSCME Judicial Panel issued a written decision sustaining the
Trial Decision. Id. at ¶ 42. On May 5, 2017, the plaintiff
appealed the full AFSCME Judicial Panel’s decision to the AFSCME
International Convention. Id. at ¶ 46.
On or about January 26, 2017, the plaintiff filed an
Article 78 petition in the Supreme Court of the State of New
7

York seeking to overturn the Trial Decision and the September
30, 2016 written decision of the full ACSFME Judicial Panel. 1 Id.
at ¶ 43; Perrow Decl. Ex. C. On March 10, 2017, AFSCME removed
the action to this Court. 2 Defs.’ 56.1 Stmt. ¶ 44.
In his petition, the plaintiff argues that the Trial
Decision and its subsequent affirmation by the Judicial Panel
violated AFSCME’s International Constitution for four main
reasons: (1) the motion passed on January, 13, 2016 was invalid;
(2) AFSCME failed to decide similar cases similarly; (3) AFSCME
failed to follow its own rules; and (4) the Trial Decision was
not supported by substantial evidence. Perrow Decl. Ex. C. at
13-15. He also seeks damages for an amount not less than
$22,620. 3 Bank Decl. Ex. E. The plaintiff’s calculations for the
estimated amount of damages include losing a $7,000 annual
stipend for serving as Civil Service Chair, from August 29, 2016
to January 9, 2019. Id.

1 On July 19, 2018, the AFSCME International Convention heard from the
plaintiff and from the Convention’s Appeals Committee. Def.’s 56.1 Stmt.
¶¶ 51-52; Perrow Decl. Ex. G. On July 23, 2018, the AFSCME International
Convention voted to adopt the decision of the full AFSCME Judicial Panel.
Def.’s 56.1 Stmt. ¶ 53; Perrow Decl. Ex. H. Accordingly, at the time the
plaintiff filed his Article 78 petition in state court, the AFSCME
International Convention had not yet decided the plaintiff’s appeal of the
full AFSCME Judicial Panel decision.
2 The case was then stayed from May 4, 2017 to September 6, 2018, pending the
exhaustion of interunion remedies. Docket Nos. 16, 21-22.
3 The plaintiff acknowledges that damages were not originally sought in his
Article 78 petition. Bank Decl. Ex. E.

8

The defendant has moved for summary judgment dismissing the
plaintiff’s claims under the Labor Management Relations Act
(“LMRA”) Section 301(a).
III.
A.
The defendant removed this action to this Court, invoking
this Court’s federal question jurisdiction, arguing that the
plaintiff’s claim was subject to exclusive federal jurisdiction
under Section 301(a) of the LMRA, 29 U.S.C. § 185. The plaintiff
did not seek to remand this case back to state court. 4 Dkt. No.
23. However, he contests that this Court has jurisdiction. The
party “asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.”

The pro se plaintiff rightly does not contest removal because the removal of
this action to this Court was proper. A defendant may remove an action
originally filed in state court if the case originally could have been filed
in federal court. See 28 U.S.C. § 1441(a). Absent diversity jurisdiction, the
“well-pleaded complaint rule” provides that “federal jurisdiction exists only
when a federal question is presented on the face of the plaintiff’s properly
pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
Pursuant to this rule, “removal generally is not permitted simply because a
defendant intends to defend the case on the basis of federal preemption.”
Vera v. Saks & Co., 335 F.3d 109, 113 (2d Cir. 2003) (per curiam). However,
“the preemptive force of § 301 is so powerful as to displace entirely any
state cause of action” for violation of a covered labor contract. Franchise
Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. California,
463 U.S. 1, 23 (1983) (internal quotation marks and citation omitted). A
state law claim is preempted by Section 301 of the LMRA when it is
“inextricably intertwined with consideration of the terms of a labor
contract” and “for preemption purposes, the term ‘labor contract’ includes
union constitutions.” Wall v. Constr. & Gen. Laborers’ Union, Local 230, 224
F.3d 168, 178 (2d Cir. 2000) (internal quotation marks and citations
omitted). Because the plaintiff alleges that the union breached the AFSCME
International Constitution and the analysis of the plaintiff’s claims
requires interpreting the AFSCME International Constitution’s provisions,
Section 301 preempts the plaintiff’s Article 78 claims.
4

9

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)
(citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)).
Section 301(a) states that “[s]uits for violation of
contracts between an employer and a labor organization
representing employees in an industry affecting commerce as
defined in this chapter, or between any such labor
organizations, may be brought in any district court of the
United States.” 29 U.S.C § 185. It is well established that a
union constitution is considered a contract between labor
organizations for the purposes of Section 301 and that a union
member may sue under Section 301 for alleged violations of a
union constitution. See Wooddell v. Int’l Bhd. of Elec. Workers,
Local 71, 502 U.S. 93, 99-101 (1991); Rosenthal v. Roberts, No.
04-CV-5205, 2005 WL 221441, at *5 (S.D.N.Y. Jan. 28, 2005). The
AFSCME International Constitution is considered a contract
between labor organizations for the purposes of Section 301. The
record establishes that when the plaintiff filed the petition,
he was a union member and that he was suing the defendant for
alleged violations of the AFSCME International Constitution. 5

The pro se plaintiff also cites provisions of the Local 375 union
constitution in his petition. Perrow Decl. Ex. C at 4. A local union’s
constitution is a contract made between an individual member and a union, and
is thus not considered a contract between labor organizations for purposes of
Section 301. See Green v. Brigham, No. 03-CV-190, 2005 WL 280327, at *11
(E.D.N.Y. Feb. 3, 2005) (collecting cases); Johnson v. Kay, 742 F. Supp. 822,
828 n.1 (S.D.N.Y. 1990). Thus, to the extent that the plaintiff is alleging
breach of the Local 375 union constitution, this Court does not have
jurisdiction to analyze that claim.
5

10

In addition, to bring a claim pursuant to Section 301 of
the LMRA, the plaintiff must sue as a private employee, rather
than an employee of a State or political subdivision thereof. 6
See Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir.
2009) (per curiam); Commer v. McEntee, No. 00-CV-7913, 2006 WL
3262494, at *17 (S.D.N.Y. Nov. 9, 2006). Employees of the union
itself are considered private employees for the purposes of
Section 301. See Commer, 2006 WL 3262494 at *17 (finding that a
local AFSCME union president had been employed by the union and
was therefore a private employee until he was removed from union
office). Employees of the union may be considered private
employees, even when they are concurrently employed by a public
employer. See Troman v. Am. Fed’n of State, No. 16-CV-6948, 2016
WL 5940924, at *4 (S.D.N.Y. Oct. 13, 2016).
Although the plaintiff is an employee of the City of New
York, he was also a private employee of local 375. The plaintiff
was compensated by the union for his positions as Local 375’s
Civil Service Chair, Chapter 8 President, and member of Local
375’s executive committee, from at least January, 2016 to
August, 2016, the relevant time period during which the
recording activity and Trial Decision at issue took place. The
6 Employees, as defined in the LMRA, 29 U.S.C. § 142(3), include individuals
employed by entities that are considered “employers” under 29 U.S.C.
§ 152(2). “The term ‘employer’ . . . shall not include the United States or
any wholly owned Government corporation . . . or any State or political
subdivision thereof.” 29 U.S.C. § 152(2).

11

record suggests that the plaintiff received a stipend of $7,000
per year for serving as Civil Service Chair. 7 The plaintiff is
suing the union for alleged violations of the AFSCME
International Constitution as a private employee of the union
and not as a public employee, and the Court therefore has
subject matter jurisdiction over this case.
B.
When deciding a claim under Section 301(a) that a union has
acted contrary to its own constitution, courts should give the
union’s interpretation of its own constitution great deference.
See Sim v. New York Mailers’ Union No. 6, 166 F.3d 465, 470 (2d
Cir. 1999). “Federal courts should be slow to rush into . .

.

matter[s] of internal union governance.” Int’l Bhd. of Teamsters
v. Local Union No. 810, 19 F.3d 786, 788 (2d Cir. 1994). This is
because
Courts have no special expertise in the
operation of unions which would justify a
broad power to interfere. The internal
operations of unions are to be left to the
officials chosen by the members to manage
those operations except in the very limited
instances expressly provided by [the LMRDA].
. . . General supervision of unions by the
courts
would
not
contribute
to
the
betterment of the unions or their members or
to the cause of labor-management relations.

At oral argument, the plaintiff confirmed that he has continued to serve as
Chapter 8 President from August 29, 2016 to the present day and is
compensated $1,500 per year by the union in this role.
7

12

Gurton v. Arons, 339 F.2d 371, 375 (2d Cir. 1964). Accordingly,
a union’s interpretation of its own constitution is entitled to
great deference and will be upheld unless it is “patently
unreasonable” or “made in bad faith.” See e.g., Mason Tenders
Local Union 59 v. Laborers’ Int’l Union of N. Am., AFL-CIO, 924
F. Supp. 528, 543-44 (S.D.N.Y.), aff’d, 101 F.3d 686 (2d Cir.
1996) (table opinion); Brodsky v. Union Local 306, No. 98-CV2325, 1999 WL 102763, at *3 (S.D.N.Y. Feb. 24, 1999), aff’d, 205
F.3d 1321 (2d Cir. 2000) (table opinion).
1.
“An interpretation that conflicts with the stark and
unambiguous language of the Constitution or reads out of the
Constitution important provisions is a patently unreasonable
interpretation of a union Constitution.” Local 100, Transp.
Workers Union of Greater New York v. Transp. Workers Union of
Am., No. 03-CV-3512, 2005 WL 2230456, at *6 (S.D.N.Y. Sept. 13,
2005) (citing Exec. Bd. of Transp. Workers Union of
Philadelphia, Local 234 v. Transp. Workers Union of Am., AFLCIO, 338 F.3d 166, 170 (3d Cir. 2003)) (internal quotation marks
omitted). The appropriate inquiry is “limited to whether the
union took a position on the basis of an informed, reasoned
judgment regarding the merits of the . . . claim” in light of
the language contained in the union constitution. Sim, 166 F.3d
at 469 (citing Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d
13

120, 127 (2d Cir. 1998)).
The defendant argues that the four main arguments that the
plaintiff raises in his original petition have no merit. The
plaintiff first argues that the motion at issue was invalid and
therefore, he could not be guilty of violating it, because the
AFSCME International Constitution incorporated Robert’s Rules of
Order (“Robert’s Rules”) and the motion was not properly
ratified under Robert’s Rules. Perrow Decl. Ex. A at 132. The
plaintiff argues that the motion, in order to be valid, had to
be ratified at a regular meeting or a special meeting called for
that purpose. Mem. Opp. at 9. However, the Trial Officer found
that the issue of the motion’s validity was not relevant to the
proceeding and that the plaintiff did not have a right to ignore
the motion because it was “a legal motion until . . . proven
otherwise.” Perrow Decl. Ex. C at 30.
It was not patently unreasonable for the Judicial Panel
member to limit the scope of the trial to the issue of whether
the plaintiff violated the motion, rather than whether the
motion itself had been properly ratified. The AFSCME
International Constitution requires the Judicial Panel to
establish Rules of Procedure. These Rules of Procedure provide
the Trial Officer with significant control over the internal
union trial proceedings. Under Article IV, Section 2 of the
Rules of Procedure, the Trial Officer “shall have the authority
14

. . . to rule on all procedural matters, objections and motions”
and “to rule on all offers of proof and receive relevant
evidence.” Perrow Decl. Ex. B at 10-11. It was reasonable for
the Trial Officer to decide that the motion’s validity was not
relevant to the trial on a charge that was limited to the
plaintiff’s specific act of violating a motion that was approved
by the Local 375 executive committee. The plaintiff has not
pointed to any provision of the AFSCME International
Constitution that supports the proposition that it was improper
to narrow the issues relevant to trial.
It was also not patently unreasonable for a union to
interpret a motion passed by a vote at a meeting of Local 375’s
executive committee to be valid until proven otherwise. The
heart of the Trial Decision–that a member may take steps to
challenge a motion’s validity but may not simply ignore the
motion–can be grounded in the reasonable concern that allowing
union members to disobey motions approved by executive
committees, because they believed that the motions were invalid,
would cause chaos and interfere with the union’s ability to
operate effectively.
The union’s reasoning is analogous to well-established
jurisprudence on the validity of a court order. “The orderly and
expeditious administration of justice by the courts requires
that an order issued by a court with jurisdiction over the
15

subject matter and person must be obeyed by the parties until it
is reversed by orderly and proper proceedings.” Maness v.
Meyers, 419 U.S. 449, 459 (1975) (citing United States v. United
Mine Workers of Am., 330 U.S. 258, 293 (1947)). Indeed, it is a
basic
proposition
that
all
orders
and
judgments of courts must be complied with
promptly. If a person to whom a court
directs an order believes that order is
incorrect the remedy is to appeal, but,
absent a stay, he must comply promptly with
the order pending appeal. Persons who make
private determinations of the law and refuse
to obey an order generally risk criminal
contempt even if the order is ultimately
ruled incorrect.
Id. at 458; see also United States v. Pescatore, 637 F.3d 128,
144 (2d Cir. 2011) (citing cases) (noting that the defendant did
not have a right to ignore the Court’s order for restitution,
even when the order listed an amount greater than what was
owed). The plaintiff had the option to challenge the validity of
the motion in a number of ways, including by challenging the
motion on the floor of the next committee meeting or filing a
charge with the AFSCME Judicial Panel, but chose not to do so.
Instead, the plaintiff violated the motion that was passed, and
in doing so, acted at his peril.
Second, the plaintiff argues that the union failed to
decide similar cases similarly. However, the defendant argues
that the internal union process is not governed by precedent.

16

Neither of the parties has pointed to any provision in the
Constitution or Rules of Procedure that discusses whether
Judicial Panel decisions have precedential value. In any case,
the decisions that the plaintiff cites in support of his
position do not relate to an individual’s failure to comply with
a motion that has been passed by an executive committee. 8 It was
not patently unreasonable for the Trial Officer to refuse to
take into account Judicial Panel decisions that were not
factually analogous. See Local 100, 2005 WL 2230456, at *14
(rejecting argument that decision of union’s appeals committee
was patently unreasonable for being inconsistent with prior
appeals committee decisions, when the plaintiff submitted no
factually analogous union appeals committee decisions).
8 The most analogous case the plaintiff cites is the Judicial Panel decision
in Fort et al. v. Forster, Case No. 13-76, which is annexed to his Memorandum
in Opposition. In Fort, a union member was charged with violating a policy
that required him to receive approval from the chapter president before he
could attend executive committee meetings. The Judicial Panel determined that
the policy violated the International Constitution because the Bill of Rights
for union members provides members with the right to “full participation in
the decision-making processes of the union and to pertinent information
needed for the exercise of this right. Attendance at the Local 375 executive
committee meeting is the right of any Local 375 member in good standing.” Id.
at 10. Fort is distinguishable because the Judicial Panel addressed a facial
challenge to a policy and held that the policy was unconstitutional under the
International Constitution. See id. at 11. It also involved the infringement
of a substantive right guaranteed to members under the Constitution’s Bill of
Rights. In contrast, the plaintiff does not argue that the motion to ban
recording could never be valid under the International Constitution; in fact,
the plaintiff admits that the motion could have been ratified at a subsequent
regular or special meeting. The plaintiff’s challenge to the motion turns on
whether the motion was properly ratified in this instance. As the Trial
Officer found, the plaintiff should have complied with the motion until it
was successfully challenged. Furthermore, the conduct that the plaintiff
complained of was a procedural violation of Robert’s Rules and not an
infringement of any members’ substantive rights under the International
Constitution.

17

The plaintiff’s third argument is that an organization
must follow its own rules and therefore, union constitutions are
binding on unions and their Locals and unions should apply their
rules consistently to cases before them. This argument largely
repeats the plaintiff’s first argument–that AFSCME failed to
follow its constitution by finding him guilty of violating a
motion that was not properly ratified consistent with Robert’s
Rules, which the constitution required; and the plaintiff’s
second argument–that similar cases should be decided similarly.
Neither of the arguments is tenable. Therefore, the plaintiff’s
third argument provides no reason to find that AFSCME acted
unreasonably.
Finally, the plaintiff contends that the union violated
Article X, Section 14(c) of the International Constitution
because the Trial Officer did not require the person bringing
the charge to assume the burden of proof and to prove that the
plaintiff recorded the meeting under a substantial evidence
standard. Article X, Section 14(c) requires only that “[t]he
person bringing the charge shall . . . assume the burden of
proof,” Perrow Decl. Ex. A at 118, and does not provide what
standard of proof governs internal union trials. In any case, it
is clear from the transcript of the union proceeding that the
plaintiff “stipulated” that he recorded the meeting on March 2,
2016. Thus, the plaintiff’s last argument is also without merit
18

and it was not patently unreasonable for the Judicial Panel
member to find the defendant guilty of the charge.
2.
A plaintiff may prove that a union decision was made in bad
faith “by demonstrating that a decision was contrary to the
International’s best interests or was unconscionable or
outrageous.” Local 100, 2005 WL 2230456, at *14; see also Local
Union No. 810, 19 F.3d at 794. “[T]he inquiry into bad faith
should be employed where there is evidence that a union official
had a ‘sinister motive’ or intent to benefit personally, such as
some pecuniary gain.” Mason Tenders Local Union 59 v. Laborers'
Int'l Union of N. Am., AFL-CIO, 924 F. Supp. 528, 548 (S.D.N.Y.)
(citations omitted).
The union’s actions at issue are limited to the Trial
Decision and the subsequent affirmation of that decision. In his
opposition, the plaintiff lists nine actions by various union
members acting against the plaintiff’s interests. Seven of these
actions occurred after the decision of the Trial Officer on
August 12, 2016 and therefore do not relate to whether the union
acted in bad faith in reaching the initial decision. Moreover,
these seven actions concern internal union grievances, such as
the budget deficits and the allocation of membership dues,
elections, and a transfer of the plaintiff’s office location,

19

and were unrelated to the Trial Decision or the union’s
subsequent affirmation of the Trial Decision.
The remaining two actions that the plaintiff mentions
occurred prior to August 12, 2016. One states that a union
member, who had made the original motion to ban recordings that
was passed at the Local meeting on January 13, 2016, had
previously accused the plaintiff of a financial cover-up. This
action is also unrelated to the Trial Decision and its
subsequent affirmation. The second states that Sona, a union
member who brought the initial charge against the plaintiff,
made disparaging and inappropriate remarks about the plaintiff’s
appearance a year prior to the Trial Decision. Whether Sona had
a sinister motive in bringing the charge against the plaintiff
is irrelevant to whether the Trial Officer engaged in bad faith
in reaching his decision on the charges before him. The
plaintiff has not alleged any activity that suggests that union
officials acted in bad faith in interpreting the union
constitution and narrowing the scope of issues relevant to the
plaintiff’s trial or in affirming the Trial Decision. The
plaintiff had the opportunity to present his arguments at trial
and subsequently exhausted his union remedies by appealing the
Trial Decision to the full Judicial Panel and then to the AFSCME
International Convention. There is no evidence in the record
that suggests that the union officials were inappropriately
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influenced by sinister motives or personal gain in reaching
their decisions.
Because the evidentiary record does not support the
plaintiff’s contention that the union’s trial and appellate
process resulted in a patently unreasonable interpretation of
the union constitution or was conducted in bad faith, the
defendant’s motion for summary judgment dismissing the
plaintiff’s claims is granted.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the reasons stated above,
the defendant’s motion for summary judgment is granted. The
Clerk is directed to enter judgment dismissing the complaint and
closing the case. The Clerk is also directed to close all
pending motions.
SO ORDERED.

Dated:

New York, New York
March 12, 2020

____/s/ John G. Koeltl ______
John G. Koeltl
United States District Judge

*Copy mailed by Chambers to pro se party at docket address

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