MONTGOMERY v. LABORERS DISTRICT COUNCIL OF PHILADELPHIA AND VICINITY et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 7/27/2015. 7/27/2015 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(ahf)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LABORERS DISTRICT COUNCIL OF
PHILADELPHIA AND VICINITY, et al.,
July 27, 2015
Pro se Plaintiff Jamere Montgomery (“Montgomery”) sued Defendants Laborers’ District
Council of Philadelphia and Vicinity (“the Council”), Laborers Local 332 (“the Local”), Ryan N.
Boyer (“Boyer”), Samuel Staten, Jr. (“Staten”), and Cory Robinson (“Robinson”) (collectively
“Defendants”) for alleged violations of “federal labor laws.” Defendants move to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants’ motion is granted
in part and denied in part for the reasons that follow.
Montgomery, a construction worker, has been a member of the Local since 2008. (Am.
Compl. 1-2, ECF No. 6.)1 The Local is, in turn, a member of the Council and the Laborers’
Montgomery’s amended complaint does not contain numbered paragraphs, nor do his motion papers
contain page numbers. Accordingly, in citing to the amended complaint and Montgomery’s motion papers, this
memorandum will refer to the page numbers assigned by the Court’s electronic filing system.
International Union of North America (“LIUNA”).2 (Id. at 1.) This lawsuit concerns ongoing
conflicts Montgomery has had with Local and Council leadership (namely, Boyer, Staten and
Robinson) in the operation of its hiring hall3 since 2013. (Id.) Boyer is Business Manager of the
Council, Robinson is President of the Local, and Staten is Secretary/Treasurer of the Council and
Business Manager of the Local. (Mot. Dismiss 13 n.6, ECF No. 7.)
Montgomery’s amended complaint recounts several alleged unfair labor practices dating
back to 2013. In June 2013, Montgomery claims that he started a petition whereby he “gathered
the names and signatures of approximately 20 members to protest the unfair hiring hall policies
and deliberate violation[s] of union members[’] rights to fair and equal job opportunities.” (Am.
Compl. 1.) Staten and Robinson allegedly told Montgomery that “it was not his job to speak for
anybody or about anything in the hall.” (Id.)
A month later, in July 2013, Montgomery filed a grievance contending that he was
deliberately passed over for employment at the Philadelphia Housing Authority (“PHA”) and
treated with hostility for requesting copies of the Local’s bylaws and collective bargaining
agreements (“CBAs”).4 (Am. Compl. 1.) Defendants held a hearing “and made findings to there
being no cause for the grievance and dismissing it as unverifiable.” (Id.)
Defendants describe the Council as an “intermediate bod[y]” between the Local and LIUNA. (See Mot.
Dismiss 12-13, ECF No. 7.)
Unions operate hiring halls by maintaining “out of work” lists of their members “as a means of making job
referrals to contractors who have entered into collective bargaining agreements” with the union. Lawson v. Passaic
Cnty. & Vicinity Carpenters & Millwrights Local 124, 50 F. App’x 73, 76 (3d Cir. 2002).
Defendants explain that the Local has a CBA with the PHA whereby the PHA, when it has an open position
for a maintenance employee, is obligated to ask the Local to refer “competent and satisfactory personnel” before the
PHA seeks applications from any other source. (See Mot. Dismiss 3, Ex. B.) The Court may consider the PHA
CBA, which was attached to Defendants’ Motion to Dismiss, because it is an undisputedly authentic document on
which Montgomery’s claims are based. See Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993) (stating that, in deciding a motion to dismiss, courts can consider only the allegations contained
in the complaint, exhibits attached to the complaint, matters of public record, and “an undisputedly authentic
document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the
document.”). These PHA jobs are especially desirable because the union member enjoys a traditional employment
Presumably in connection with the petition he started in June 2013, Montgomery
attempted to organize a “Committee of Concerned Laborers of Local 332” to review the Local’s
“unfair hiring practices and illegal retaliation against member[s] who exercise their statutory
rights to participate and assemble in lawful union activities.” (Am. Compl. 2.) In June 2014,
Montgomery attempted to introduce a resolution for the formation of such committee at a general
membership meeting. (Id.) Robinson as chairman, however, “refused to accept it or
acknowledge [Montgomery’s] right to participate in the meeting.” (Id.) Additionally, Staten
told Montgomery he would “shut it down.” (Id.) Defendants further threatened to bring
Montgomery up on charges for being disruptive at meetings. (Id.)
There are a few places in the amended complaint where Montgomery becomes more
specific in his allegations of “unfair hiring practices and illegal retaliation.” Montgomery pleads
that the Defendants engage in a strategy of “blackballing” or “blacklisting” to control the Local
and its members and “deny employment and other benefits to members who actively engage in
union activities.” (Am. Compl. 2.) Montgomery claims that in retaliation for filing grievances,
he has been passed over for referrals to more favorable jobs, including jobs with the PHA. (Id.)
Montgomery also alleges that Defendants maintain two “out-of-work books” (one for PHA jobs
and one for all other jobs), which “is a direct violation of hiring hall guidelines and the bylaws of
the organization.” (Id.) Montgomery states that he complained about this dual out-of-work book
system in his July 2013 grievance, but was simply told “he was on the list” and his “grievance
was dismissed as lacking merit.” (Id.)
Montgomery details two final instances of Defendants’ alleged wrongful behavior in May
2015. First, Montgomery claims that “just days” after he initiated this litigation, Defendants
relationship with the PHA—that is, the job is permanent and, as Montgomery highlights in the amended complaint,
offers paid holidays and vacations. (See Am. Compl. 2, ECF No. 6; Mot. Dismiss 3.)
referred him to a job with the PHA. (Am. Compl. 2.) Montgomery went to PHA for the
interview and provided a urine sample for a drug analysis test. (Id.) The PHA told Montgomery
that his urine sample was not the right temperature. (Id.) Montgomery “left the facility” and did
not get the job. (Id.) Second, Montgomery contends that in May 2015 he was “thrown off of a
job . . . for an alleged safety violation” despite having over 40 hours of safety training. (Id.) The
employer, who “happens to be one of the biggest employer[s] of union laborers in the area,” told
Montgomery that he will not be rehired. (Id.) A supervisor allegedly told Montgomery that “the
union was out to get him.” (Id.)
Montgomery filed this lawsuit against the Defendants on April 17, 2015 in the
Philadelphia Court of Common Pleas. (Not. of Removal 1, ECF No. 1.) Defendants removed
the case to this Court, and Montgomery was granted leave to file an amended complaint on May
29, 2015. (ECF No. 5.) Defendants thereafter filed a motion to dismiss the amended complaint
in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing in part that the
amended complaint fails to make any specific claims that have a legal remedy.5 (Mot. Dismiss
5.) In response, Montgomery clarified that his claims arise under the Labor Management
Reporting and Disclosure Act’s (“LMRDA”) “bill of rights.” (Opp’n Mot. Dismiss 3, ECF No.
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead factual
allegations sufficient “to raise a right to relief above the speculative level . . . on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The “mere possibility of misconduct” is not enough; the
The amended complaint does not list Montgomery’s claims in separate counts. Rather, it is comprised of a
two-page narrative of factual allegations along with a demand for relief. (See Am. Compl. 1-2.)
complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face,” i.e., sufficient facts to permit “the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009) (quotation and citation omitted).
The court must construe the complaint in the light most favorable to the plaintiff. In re
Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) (quoting Gelman v. State Farm
Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009)). However, while all allegations contained
in the complaint must be accepted as true, the court need not give credence to mere “legal
conclusions” couched as facts. Iqbal, 556 U.S. at 678. To decide a motion to dismiss, courts
consider only the allegations contained in the complaint, exhibits attached to the complaint,
matters of public record, and “an undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.” Pension
Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Finally, as Montgomery is proceeding pro se, the Court is mindful that the amended
complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal
pleadings drafted by lawyers.” Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (citing
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Nevertheless, the Court must review the
amended complaint to ensure that it meets the Iqbal plausibility standard. Id. (citing Iqbal, 556
U.S. at 678).
Title I of the LMRDA provides union members with an exhaustive “Bill of Rights”
enforceable in federal court. Local No. 82, Furniture & Piano Moving, Furniture Store Drivers,
Helpers, Warehousemen & Packers v. Crowley, 467 U.S. 526, 536 (1984) (citing 29 U.S.C.
§§ 411-415). “In particular, Title I is designed to guarantee every union member equal rights to
vote and otherwise participate in union decisions, freedom from unreasonable restrictions on
speech and assembly, and protection from improper discipline.” Id. at 536-37. The pertinent
subparts of Section 101 of the LMRDA’s Bill of Rights provide:
(2) Freedom of speech and assembly
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.
(5) Safeguards against improper disciplinary action
No member of any labor organization may be fined, suspended,
expelled, or otherwise disciplined except for nonpayment of dues
by such organization or by any officer thereof unless such member
has been (A) served with written specific charges; (B) given a
reasonable time to prepare his defense; (C) afforded a full and fair
29 U.S.C. § 411.6 Disciplinary action is also treated again in Section 609, where the LMRDA
states that unions may not discipline their members for exercising any right to which they are
entitled under the Bill of Rights. See 29 U.S.C. § 529 (“It shall be unlawful for any labor
organization, or any officer, agent, shop steward, or other representative of a labor organization,
A violation of a union members’ rights under Section 101 is made actionable by Section 102. See 29
U.S.C. § 412 (“Any person whose rights secured by the provisions of this subchapter have been infringed by any
violation of this subchapter may bring a civil action in a district court of the United States for such relief (including
injunctions) as may be appropriate.”).
or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for
exercising any right to which he is entitled under the provisions of this chapter.”).
Here, liberally construing the allegations in the amended complaint, Montgomery alleges
that Defendants violated his rights to free speech and assembly under Section 101(a)(2) and then
improperly disciplined (or “blacklisted”) him for exercising those rights in violation of Sections
101(a)(5) and 609. (See Am. Compl. 1-2.) In their briefing, Defendants counter that
Montgomery has failed to exhaust his administrative remedies and the amended complaint
alleges no direct wrongdoing by the Council, Staten, Boyer, or Robinson. (Mot. Dismiss 8-13.)
Defendants further posit that Montgomery “does not identify jobs that he was passed over
for . . . . Thus, the claim of ‘blackballing’ is nothing more than a bald assertion of wrongdoing,
which is not sufficient to survive a Rule 12(b)(6) motion.” (Reply in Supp. Mot. Dismiss 4, ECF
No. 9.) The Court will consider Montgomery’s claims under Sections 101(a)(2) & (5) and 609 in
In examining Section 101(a)(2) of the LMRDA, the United States Supreme Court has
stated that “the legislators intended § 101(a)(2) to restate a principal First Amendment value—
the right to speak one’s mind without fear of reprisal.” Reed v. United Transp. Union, 488 U.S.
319, 325 (1989) (citing Steelworkers v. Sadlowski, 457 U.S. 102, 111 (1982)). While a violation
of First Amendment free speech rights by itself is insufficient to violate Section 101(a)(2), Sheet
Metal Workers’ Int’l Assoc. v. Lynn, 488 U.S. 347, 353 (1989), infringement of a union
member’s free speech must be viewed with reference to the basic objective of the LMRDA: “to
ensure that unions [are] democratically governed, and responsive to the will of the union
membership.” Finnegan v. Leu, 456 U.S. 431, 441 (1982). In other words, the “subject matter
of any protected speech must ‘directly relate’ to the union-member relationship.” Kovach v.
Turner Dairy Farms, Inc., 929 F. Supp. 2d 477, 490 (W.D. Pa. 2013) (citing Semancik v. United
Mine Workers of Am. Dist. No. 5, 466 F.2d 144, 154 (3d Cir.1972)). In this vein, the Third
Circuit has directed district courts to take an “expansive view of union speech rights.” See Foley
v. Int’l Bhd. of Elec. Workers Local Union 98 Pension Fund, 91 F. Supp. 2d 797, 811 (E.D. Pa.
2000) (citing Ruocchio v. United Transp. Union, Local 60, 181 F.3d 376, 386 (3d Cir. 1999),
cert. denied, 528 U.S. 1154 (2000)).
Reading the amended complaint liberally, accepting Montgomery’s allegations as true,
and construing all facts in a light most favorable to him, the Court finds that Montgomery has
stated a claim for a violation of his rights to free speech and assembly under Section 101(a)(2).
The amended complaint alleges that since June 2013 when Montgomery started a petition, he has
been attempting to form a committee to review perceived unfair policies and practices of the
Local’s hiring hall, but Defendants have been hostile to the idea. At a general membership
meeting a year later, Defendants still refused to hear Montgomery’s resolution and told him they
would “shut it down.” Defendants also retaliated against Montgomery (by refusing to refer him
to jobs) for his perceived troublemaking activities. These allegations directly relate to the unionmember relationship between the Local and Montgomery. Moreover, these allegations implicate
the relationship between the Local and any other members who share Montgomery’s views.
“Intimidation and impeding speech would naturally discourage members from invoking their
legal rights under federal labor law, and is wholly antithetical to the protection of the LMRDA.”
Kovach, 929 F. Supp. 2d at 490.
Given plaintiff’s pro se status and the early stage of this litigation, Montgomery’s
allegations are sufficient to withstand Defendants’ motion to dismiss. See, e.g., Kovach, 929 F.
Supp. 2d at 490 (refusing to dismiss Section 101(a)(2) claim because “[i]t is more than plausible
that the conduct and harassment by Shafer, if proven, was indeed a very direct reprisal for
Plaintiff’s criticism of Union policy and Shafer’s leadership as Union Steward.”); Maier v.
Patterson, 511 F. Supp. 436, 446-47 (E.D. Pa. 1981) (union leader’s treatment of plaintiff as a
“shitstirrer” and aggression towards plaintiff at an official meeting in response to plaintiff’s
criticism of his leadership stated a claim under Section 101(a)(2)); cf. Collins v. Pennsylvania
Tel. Union, Local 1944, IBEW, AFL-CIO, 431 F. Supp. 842, 845 (W.D. Pa. 1977) (reasoning that
a Section 101(a)(2) claim is sufficiently alleged where “established union history or articulated
policy [shows] a purposeful and deliberate attempt by union officials to suppress dissent.”).
Defendants rely on the transcript from Montgomery’s July 2013 grievance hearing,
attached to their motion to dismiss, in arguing that Montgomery’s allegations of the Local’s
wrongful hiring hall practices are without merit. (Mot. Dismiss 6-7 & Ex. F.) The Court
acknowledges Defendants’ argument, but consideration of such extrinsic evidence on a motion to
dismiss would be premature. At this stage, the Court can only consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. Pension Ben. Guar.
Corp., 998 F.2d at 1196. It is true that the Court can consider “an undisputedly authentic
document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims
are based on the document,” id., such as an insurance policy between parties in an insurance
coverage case, e.g., Simmons v. Trumbull Ins. Co., No. 11-cv-6571, 2012 WL 1439082, at *3 n.1
(E.D. Pa. Apr. 25, 2012), or a corporation’s annual report in a securities fraud case. See In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Indeed, for a document
to form the basis of a plaintiff’s claim, plaintiff’s claims must “turn on [the document’s]
interpretation.” Stanford v. Foamex L.P., No. 07-cv-4225, 2008 WL 3874823, at *4 (E.D. Pa.
Aug. 20, 2008). That is not the case here, where Montgomery’s claims encompass events both
preceding and following the July 2013 hearing and do not depend (at least not to a dispositive
extent) on the Court’s interpretation of the hearing transcript. Defendants are free to raise their
arguments again and offer the July 2013 hearing transcript as evidence for the Court’s proper
consideration at summary judgment.7 Defendants’ motion to dismiss Mongtomery’s Section
101(a)(2) claim is denied.
The amended complaint, however, does not state a claim under Sections 101(a)(5) and
609 because Montgomery alleges no official union action that amounts to “discipline.” The
reprisals Montgomery alleges in the amended complaint accuse Defendants, most often singling
out Staten and Robinson, of surreptitiously “blacklisting” or passing Montgomery over for jobs,
particularly jobs with the PHA. However, the Supreme Court made clear in Breininger v. Sheet
Metal Workers Int’l Ass’n Local Union No. 6 that by using the phrase “otherwise discipline” in
Sections 101(a)(5) and 609, “Congress did not intend to include all acts that deterred the exercise
of rights protected under the LMRDA, but rather meant instead to denote only punishment
authorized by the union as a collective entity to enforce its rules. Discipline is the criminal law
of union government. The term refers only to actions undertaken under color of the union’s right
to control the member’s conduct in order to protect the interests of the union or its membership.”
For the same reasons, it is improper for the Court to look at the May 2015 emails attached to Defendants’
motion to dismiss. (See Mot. Dismiss, Exs. C-D.) These emails are extraneous to the pleadings and cannot be
considered at the 12(b)(6) stage. Pension Ben. Guar. Corp., 998 F.2d at 1196. Moreover, the issue is a moot one
because Montgomery’s allegations regarding events in May 2015 are irrelevant to the analysis of his claims against
Defendants are comprised of Montgomery’s unions and their officers. However, Montgomery’s May 2015
allegations relate wholly to problems he had with his employers. Montgomery complains that in May 2015 the PHA
refused to accept his urine sample because it “was not the right temperature” and an unnamed construction employer
fired him “for an alleged safety violation.” (Am. Compl. 2.) Neither of these allegations describes any wrongful
action on the part of the union. Because Montgomery’s May 2015 allegations do not involve Defendants, the Court
need not examine them any further.
493 U.S. 67, 91 (1989) (citation and quotations omitted). “[C]oercion, intimidation, and
economic reprisals by union officers do not constitute ‘discipline.’” Brenner v. Local 514,
United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1297 (3d Cir. 1991) (citing
Breininger, 493 U.S. at 94); Maier, 511 F. Supp. at 444 (“By the principle of ejusdem generis,
the general expression ‘otherwise disciplined’ connotes action similar to the specific acts of
fining, suspending, or expelling. What these specific acts have in common is that they stem from
the peculiar authority of the union over its members.”) (emphasis added).
The Third Circuit has interpreted Breininger to require that an action meet three criteria
before it can be considered discipline under Sections 101(a)(5) and 609:
First, the suspension of job referrals by a hiring hall can qualify as
“discipline,” just as can a fine, suspension or expulsion. Second,
the purpose of discipline must be to “enforce [the union’s] rules,”
or to “punish a violation of union rules,” as opposed to engaging in
“ad hoc retaliation,” motivated by “personal vendettas” such as a
business agent’s anger over a member’s political views. Third, the
punishment must be “authorized by the union,” or carried out by
the union in its “official capacity,” through “some sort of
established disciplinary process,” such as being the subject of a
“tribunal” or of “proceedings” conducted by the union.
Bullock v. Dressel, 435 F.3d 294, 298 (3d Cir. 2006) (citations omitted). Here, Montgomery’s
allegations of blacklisting meet the first criterion, but they fail to meet the second or third. There
is no allegation that Staten and Robinson, or even the Local at large, blacklisted Montgomery for
the purpose of enforcing the union’s rules or punishing Montgomery for a violation of those
rules. See Bullock, 435 F.3d at 298 (“Retaliating against the authors of an informal complaint
letter [via blacklisting] is not the enforcement of union rules.”).
Nor does the blacklisting Montgomery alleges rise to the level of formality required for it
to be considered punishment “authorized by the union” or carried out by the union in its “official
capacity.” Montgomery does not claim that he was blacklisted through any sort of “established
disciplinary process”—he does not allege he was brought up on charges,8 fined, suspended,
expelled or otherwise punished by a union tribunal. This lack of official action taken in the name
of the union itself through an established disciplinary channel is fatal to Montgomery’s Sections
101(a)(5) and 609 claims. See Bullock, 435 F.3d at 298 (“Dressel’s refusal to refer the
appellants, and mailing of a list of their names to other locals’ managers in order to ‘blacklist’
them, does not resemble ‘some sort of established disciplinary process,’ nor did it make
appellants the subject of a union ‘tribunal’ or ‘proceeding’ through which they could claim they
were denied the procedural due process required by § 101(a)(5).”); see also Breininger, 493 U.S.
at 94 (“In the instant case, petitioner alleged only that the union business manager and business
agent failed to refer him for employment because he supported one of their political
rivals. . . . According to his complaint, he was the victim of the personal vendettas of two union
officers. The opprobrium of the union as an entity, however, was not visited upon petitioner. He
was not punished by any tribunal, nor was he the subject of any proceedings convened by
respondent. In sum, petitioner has not alleged a violation of §§ 101(a)(5) and 609”) (emphasis in
original); Brenner, 927 F.2d at 1297 (finding blacklisting allegations in “this case [are]
indistinguishable from Breininger because the union members failed to allege acts by the union
acting in its official capacity and instead raised only ad hoc retaliations by the individual union
Because Montgomery’s blacklisting allegations do not meet the Third Circuit’s criteria
for “discipline,” his claims under Sections 101(a)(5) and 609 are dismissed.
Montgomery does state in the amended complaint that the defendants “threatened” to bring him up on
charges for being disruptive at meetings (Am. Compl. 2), but does not allege that this threat was ever carried out.
Defendants argue that the amended complaint should be dismissed because Montgomery
has failed to exhaust his intra-union remedies. (Mot. Dismiss 8-12.) Specifically, Defendants
maintain that although Montgomery filed written grievances and attended at least one hearing on
his grievances in July 2013, he never appealed that hearing decision as he was entitled to do
under the LIUNA Constitution. (Id. at 10-11.) Defendants contend that although exhaustion is a
discretionary, not mandatory, requirement under Clayton v. Int’l Union, United Auto.,
Aerospace, & Agr. Implement Workers of Am., 451 U.S. 679, 692 (1981), it is appropriate to
impose the requirement in this case. (Mot. Dismiss 8-9.)
Defendants’ reliance on Clayton as controlling precedent is inaccurate because Clayton
dealt with claims brought under the Labor Management Relations Act (“LMRA”), 29 U.S.C.
§ 185, et seq., not the LMRDA.9 Exhaustion is, however, a statutory requirement under Section
101(a)(4) of the LMRDA:
(4) Protection of the right to sue
No labor organization shall limit the right of any member thereof
to institute an action in any court, or in a proceeding before any
administrative agency, irrespective of whether or not the labor
organization or its officers are named as defendants or respondents
in such action or proceeding, or the right of any member of a labor
organization to appear as a witness in any judicial, administrative,
Because Montgomery does not seek to sue any of his employers, the Court reads the amended complaint as
not bringing any claims against Defendants under the LMRA. Such a claim against the union, i.e., one for breach of
the union’s duty of fair representation under the LMRA, must be brought in conjunction with a claim against an
employer to be actionable. See Deans v. Kennedy House, Inc., 998 F. Supp. 2d 393, 418 (E.D. Pa. 2014) (“Such a
[so-called ‘hybrid § 301/fair representation’] claim ‘comprises two causes of action’: a suit against the employer for
breach of a collective bargaining agreement under § 301 of the LMRA, and a suit against the union ‘for breach of
the union’s duty of fair representation . . . . Those two actions are interdependent. A plaintiff can only recover for an
employer’s breach of the collective bargaining agreement if he can show that because of his union’s unfair
representation, he should not be bound by the result of the CBA’s grievance procedure. Likewise, a union’s breach
of that duty is actionable only if the employer did in fact breach the terms of the CBA.”) (citing DelCostello v. Int’l
Bhd. of Teamsters, 462 U.S. 151, 164 (1983)), aff'd, 587 F. App’x 731 (3d Cir. 2014). Hence, the absence of a
defendant-employer here, as well as Montgomery’s assertions in his opposition brief that his claims arise under the
LMRDA (Opp’n Mot. Dismiss 3), inform the Court that Montgomery’s claims against Defendants are limited to
those under the LMRDA.
or legislative proceeding, or to petition any legislature or to
communicate with any legislator: Provided, That any such member
may be required to exhaust reasonable hearing procedures (but not
to exceed a four-month lapse of time) within such organization,
before instituting legal or administrative proceedings against such
organizations or any officer thereof[.]
29 U.S.C. § 411; see also Local Union No. 1075, United Rubber, Cork, Linoleum & Plastic
Workers of Am., AFL-CIO v. United Rubber, Cork, Linoleum & Plastic Workers of Am., AFLCIO, 716 F.2d 182, 185 (3d Cir. 1983) (distinguishing the LMRA’s exhaustion requirement as
“[u]nlike exhaustion with regard to claims under certain titles of the Labor-Management
Reporting and Disclosure Act of 1959, which Congress has statutorily imposed”).
The Third Circuit has held that a court may waive Section 101(a)(4)’s exhaustion
requirement in certain circumstances:
Several grounds have been found to be particularly appropriate
bases for waiving the exhaustion requirement of Section 101(a)(4).
When plaintiffs will suffer irreparable harm in their jobs, or in the
exercise of rights guaranteed to them under the LMRDA, courts
have found the preservation of the individual interest more
important than that of union autonomy. Similarly, when the
internal appeals structure is inadequate or illusory, or is controlled
by those to whom the plaintiff is opposed, exhaustion has been
deemed futile and contrary to the purposes of the LMRDA.
Finally, where the union has consistently taken a position opposed
to that of the plaintiff and makes no indication that it will alter its
views, there is no purpose in requiring an adjudication by the labor
organization. In these cases, the courts are particularly solicitous
when the right of free speech is at stake.
Semancik v. United Mine Workers of Am. Dist. No. 5, 466 F.2d 144, 150-51 (3d Cir. 1972)
Defendants argue that “Montgomery has not claimed that any of the Defendants are
hostile to him or that he does not have the hopes of obtaining a fair hearing from his claim in an
internal union appeal.” (Mot. Dismiss 9.) Reading the amended complaint liberally, as it must,
the Court disagrees. The amended complaint paints the picture of Defendants, especially Staten
and Robinson, being hostile towards Montgomery’s views and grievances. Montgomery’s
description of the June 2014 meeting is a good example of this, where in response to
Montgomery’s suggestion that a committee be formed to review the Local’s hiring hall practices,
Staten stated that he would “shut it down.” (Am. Compl. 2.) The amended complaint also
alleges that Montgomery has been “suffer[ing] significant financial damage due to being
blackballed” and has been told “the union [is] out to get him.” (Id.)
Given the early stage of this litigation and lack of an evidentiary record, the Court is
unable to discern whether exhaustion would be futile because this is a case “where the union has
consistently taken a position opposed to that of the plaintiff and makes no indication that it will
alter its views” or because an appeal would be “controlled by those to whom [Montgomery] is
opposed.” Semancik, 466 F.2d at 151; see also Maier, 511 F. Supp. at 441 (“A plaintiff is not
compelled to exhaust internal union remedies when the appeal would have to be made to the very
officers against whom the complaint is directed.”). Montgomery has stated enough factual
allegations in the amended complaint to make these situations plausible. Therefore, the Court
will not dismiss the complaint on the grounds of exhaustion at this time.
Finally, Defendants argue that the amended complaint should be dismissed against the
Council, Staten, Boyer, and Robinson because (1) an intermediate union body cannot be held
liable for the acts of one of its local unions, and (2) individual union officers are not personally
liable for actions they take on behalf of a labor union. (Mot. Dismiss. 12-13.)
Defendants are correct that an intermediate or international union cannot be held liable
for the acts of one of its local unions unless the intermediate or international union “itself
instigated or actively supported” the alleged illegal acts. See Ponton v. AFSCME, 395 F. App’x
867, 873 n.4 (3d Cir. 2010) (emphasis in original) (citing Anjelino v. N.Y. Times Co., 200 F.3d
73, 95-96 (3d Cir. 1999) and Brenner, 927 F.2d at 1289). Here, however, the Council can be
held liable for the actions of Staten, who is its Secretary/Treasurer. See Urichuck v. Clark, 689
F.2d 40, 43 (3d Cir. 1982) (“The actions of union officers are tested by common law theories of
agency. Thus, if their actions fall within the scope of their authority, they are acting for the
union and whatever liability flows from their actions flows to the union also. However, if their
illegal actions fall without the scope of their authority, they must bear the consequences alone.”).
Because the amended complaint contains numerous allegations of wrongful conduct committed
by Staten, the Council is a proper defendant as well.
Defendants cite to Atkinson v. Sinclair Ref. Co., 370 U.S. 238, 247-49 (1962) to support
their second argument that individual union officers are not personally liable for actions they
take on behalf of a labor union. Atkinson, however, was a case where an employer sought
damages from individual union members for their union’s breach of a CBA. 370 U.S. at 239-40.
Accordingly, the Third Circuit has explained that “the law is clear that individual union officers
are not personally liable to third parties for actions taken on behalf of the union in the collective
bargaining process.” Carino v. Stefan, 376 F.3d 156, 159-60 (3d Cir. 2004). That is not the case
here, where the dispute lies between a union member and his union/union leaders for their
alleged violations of the union members’ rights under the LMRDA. In such a situation, it is
clear that a union official can be liable for his own acts which deprive a member of his rights
under the LMRDA. See Brenner, 927 F.2d at 1287 (recognizing suit by union member against
unions and union officers for violation of LMRDA rights); see also Schermerhorn v. Local 100,
Transp. Workers Union of Am., AFL-CIO, 91 F.3d 316, 324 (2d Cir. 1996) (“[A] union official
who aids abets, instigates, or directs a wrongful use of union power to deprive a member of his
rights under § 101 may be held liable under § 102.”) (citing Rosario v. Amalgamated Ladies’
Garment Cutters’ Union, Local 10, 605 F.2d 1228, 1246-47 (2d Cir. 1979), cert. denied, 446
U.S. 919 (1980)); Farrell v. Hellen, 367 F. Supp. 2d 491, 501 (S.D.N.Y. 2005) (“A union official
is liable not only if he directly abridges a member’s free speech rights, but also if he ‘aids, abets,
instigates, or directs a wrongful use of union power to deprive a member of his rights.’”) (citing
Schermerhorn, 91 F.3d at 324).
Because the amended complaint alleges that Staten and Robinson took actions on
multiple occasions to infringe Montgomery’s free speech and assembly rights, they are proper
defendants in this case. In contrast, the amended complaint is devoid of any allegations against
Boyer. As Montgomery has made no allegations against Boyer at all, much less allegations
sufficient to raise a plausible right to relief, Twombly, 550 U.S. at 555, Boyer is dismissed from
For the foregoing reasons, Defendants’ motion to dismiss is granted in part and denied in
part. An appropriate order follows.
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.
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