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Government and People
STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATHAN A. SAUNDERS, Plaintiff, vs. ESTHER HANKERSON, et al, Defendants, Civ. Action No. 02-2536 (EGS)
REPLY IN SUPPORT OF DEFENDANT AFT'S AND MCELROY'S MOTION TO DISMISS
James M. Cole (D.C. Bar No. 385857)
ATTORNEYS FOR THE AMERICAN FEDERATION OF TEACHERS AND EDWARD J. MCELROY
April 11, 2003
TABLE OF CONTENTS
A. AFT Breached No Duty Under Contract or as an Agent to WTU or its Members
III. PLAINTIFF'S CLAIMS IN COUNTS VI AND VII FOR COMMON LAW BREACH OF FIDUCIARY DUTY AND NEGLIGENCE ARE PREEMPTED
BY § 301 OF THE LMRA AND MUST BE DISMISSED
1199 DC, National Union of Hospital & Health Care Employees v. National Union of Hospital & Health Care Employees, 533 F.2d 1205 (D.C. Cir. 1976)
Aguirre v. Automotive Teamsters, 633 F.2d 168 (9th Cir. 1980)
Aho v. Bintz, 290 F. Supp. 577 (D. Minn. 1968).
Alexander v. International Union of Operating Engineers, 624 F.2d 1235 (5th Cir. 1980)
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)
Austin v. Trandell, 207 F. Supp. 2d 616 (E.D. Mich. 2002)
Avco Corp. v. Aero Lodge No. 735, International Association of Machinists & Aerospace Workers, 390 U.S. 557 (1968)
BIW Deceived v. Local S6 Industrial Union of Marine & Shipbuilding Workers of America, 132 F.3d 824 (1st Cir. 1997)
Borowiec v. Local No. 1570, 889 F.2d 23 (1et Cir. 1989)
Boss v. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, 567 F. Supp. 845 (N.D.N.Y. 1983), aff'd, 742 F.2d 1446 (2d Cir. 1983)
Brenner v. Local 514, United Brotherhood of Carpenters & Joiners of America, 927 F.2d 1283 (3d Cir. 1991)
Bryan v. Norfolk & Western Railway Co., 21 F. Supp. 2d 1030 (E.D. Mo. 1997), aff'd, 154 F.3d 899 (8th Cir. 1998)
Carbon Fuel Co. v. United Mine Workers of America, 444 U.S. 212 (1979)
Cefalo v. Moffett, 333 F. Supp. 1283 (D.D.C.), modified, 449 F.2d 1193 (D.C. Cir. 1971)
Coble v. Howard University, 960 F. Supp. 1 (D.D.C. 1997)
Coleman v. Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees, 340 F.2d 206 (2d Cir. 1965)
Commer v. McEntee, 145 F. Supp. 2d 333 (S.D.N.Y. 2001), aff'd in relevant part and vacated in part on other grounds, 34 Fed. Appx. 802 (2d Cir. 2002)
Compofelice v. United Food & Commercial Workers, Local 400, No. 80-0046, 1980 WL 2167 (D.D.C. Oct. 10, 1980)
Council 49, American Federation of State, County & Municipal Employees Union v. Reach, 843 F.2d 1343 (11th Cir. 1988)
Duran v. AT&T Corp., No. C-2-99-418, 2000 WL 33592869 (S.D. Ohio, Aug. 31, 2000)
EEOC v. Regency Architectural Metals Corp., 896 F. Supp. 260 (D. Corm. 1993)
Eisenman v. Continental Airlines, Inc., Civ. No. 96-1368 1996 U.S. Dist. LEXIS 21690 (D.N.J. June 27, 1996), rev'd 974 F. Supp. 425 (D.N.J. 1997)
Eisenman v. Continental Airlines, Inc., 974 F. Supp. 425, 430 (D.N.J. 1997)
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)
Federal Prescription Service, Inc. v. Amalgamated Meat Cutters & Butcher Workmen of North America, 527 F.2d 269 (8th Cir. 1975)
Finnie v. District No. 1 - Pacific Coast District Marine Engineers Beneficial Association, 538 F. Supp. 455 (N.D. Cal. 1981)
Flaherty v. Warehouseman, Garage & Service Station Employees Local Union No. 334, 574 F.2d 484 (9th Cir. 1978)
Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 23-24 (1982)
Gable v. Local Union No. 387 International Associate of Bridge, Structural, & Ornamental Iron Workers, 695 F. Supp. 1174 (N.D. Ga. 1988)
George v. Local Union No. 639, 98 F.3d 1419 (D.C. Cir. 1996)
Head v. Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Station Employers, 512 F.2d 398 (2d Cir. 1975)
Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992)
Hood v. Journeymen Barbers, Hairdressers, Cosmetologists & Proprietors International Union of America, 454 F.2d 1347 (7th Cir. 1972)
Intercity Maintenance Co. v. Local 254 Service Employees International Union, 62 F. Supp. 2d 483 (D.R.I. 1999), aff'd in relevant part and vacated in part on other grounds, 241 F.3d 82 (1st Cir. 2001)
International Union, United Mine Workers of America v. District 50, United Mine Workers of America, 435 F.2d 421 (D.C. Cir. 1970)
Johnson v. McGowan, 573 F. Supp. 1051 (E.D.N.Y. 1983)
Kowal v. MCI Communications Corp., 16 F.3d 1271 (D.C. Cir. 1994)
Laughon v. International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists & Allied Crafts of the United States & Canada, 248 F.3d 931 (9th Cir. 2001)
McNamara v. Johnston, 522 F.2d 1157 (7th Cir. 1975)
Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58 (1987)
Mile Branch Coal Co. v. United Mine Workers of America, 266 F.2d 919 (D.C. Cir. 1959)Moore v. Local Union 569 of the International Brotherhood of Electrical Workers, 989 F.2d 1534 (9h Cir. 1993)
O'Conner a Freyman, No. CIV. A. 85-0566, 1985 WL 121 (D.D.C. May 31, 1985)
Pawlak v. Greenawalt, 464 F. Supp. 1265 (M.D. Pa. 1979)
Pearson v. UAW International Union, No. 02-CV-70060-DT, 2002 WL 1880749 (E.D. Mich. July 9, 2002)
Phelan v. Local 305 of United Association of Journeymen, & Apprentices of Plumbing & Pipefitting Industry of United States & Canada, 973 F.2d 1050 (2d Cir.1992)
Pignotti v. Local No. 3 Sheet Metal Workers' International Association, 477 F.2d 825 (8th Cir. 1973)
Quinn v. DiGiulan, No. 81-1921, 1983 WL 2005 (D.D.C. May 29, 1983), modified, 739 F.2d 637 (D.C. Cir. 1984)
Quinn v. DiGiulian, 739 F.2d 637 (D.C. Cir. 1984)
Rego v. Westvaco Corp., 319 F.3d 140 (4th Cir. 2003)
Rutledge v. Aluminum, Brick & Clay Workers International Union, 737 F.2d 965 (11th Cir. 1984)
Sabey v. Local 12230 of United Steelworkers of America, No. 81-80E, 1982 WL 31338 (W.D.N.Y. Mar. 18, 1982)
Sabolsky a Budzanoski, 457 F.2d 1245 (3d Cir. 1972)
Stelling v. International Brotherhood of Electrical Workers Local Union No. 1547, 587 F.2d 1379 (9th Cir. 1978)
Texas Industries, Inc. v. Radcliffe Materials, Inc., 451 U.S. 630 (1981)
Trine Council v. Biller, No. 82-1232, 1982 WL 2038 (D.D.C. May 26, 1982)
United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada v. Local 334, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada, 452 U.S. 615 (1981)
United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344 (1922)
Wade v. Teamsters Local 247, 527 F. Supp. 1169 (E.D. Mich. 1981)
Wirtz v. Local 153 Glass Bottle Blowers Association, 389 U.S. 463 (1968)
Woodell v. International Brotherhood of Electrical Workers, Local 71, 502 U.S. 93 (1991)
Woods v. Local No. 12 Sheet Metal Workers International Association, 438 F. Supp. 578 (W.D. Pa. 1977)
Yager v. Carey, 910 F. Supp. 704 (D.D.C. 1995), affd, 159 F.3d 638 (D.C. Cir. 1998)
Yelen v. Banks, 146 A.2d 569 (D. C. 1958)
STATUTES & RULES
29 U.S.C. §§ 401 to 531
29 U. S. C. § 185
29 U.S.C. § 185(a)
29 U. S. C. § 431(c)
29 U.S.C. § 501
29 U.S.C. § 501(a)
29 U.S.C. § 501(b)
Federal Rule Civil Procedure 12(b)(1)
Federal Rule Civil Procedure 12(b)(6)
Federal Rule Civil Procedure 23.1
Unfortunately, no good deed goes unpunished, and despite its efforts and activity on behalf of the teachers who are the WTU's members, the AFT, and its officer Edward McElroy ("McElroy"), find themselves the subject of the present suit. As detailed in the AFT's Motion to Dismiss, this suit is, however, defective as a matter of law and should be dismissed in its entirety. This Reply will illustrate why Plaintiff's Opposition does not alter that conclusion.
I. PLAINTIFF'S § 501 CLAIMS ARE WITHOUT MERIT AND MUST BE DISMISSEDPlaintiff's claim against the AFT and McElroy under § 501 of the LMRDA fail as a matter of law because as a union, the AFT is not an appropriate defendant; because McElroy is not an officer of WTU, and did not exercise autocratic control over WTU; because Plaintiff never requested the institution of an action against anyone, much less the AFT or McElroy, prior to filing suit; because Plaintiff did not have good cause to seek leave of court to bring this suit; and because Defendants have, in fact, brought suit against the malefactors in question. Nothing stated in Plaintiff's Opposition contradicts these conclusions.
A. Because § 501 Claims Are Not Cognizable Against Unions, Count 11 Must Be Dismissed as to AFT
Plaintiff concedes, by failing to contest, that he is not entitled to pursue a § 501 action against the AFT as a union. Instead, Plaintiff attempts an end-run around the well established law precluding this suit by making what even Plaintiff admits is a novel argument. (Pl.'s Opp. at 19) ("[N]o court has made a determination about whether a union can be sued as an agent of another union."). Plaintiff suggests that the AFT Constitution creates an agency relationship between AFT and the WTU, and that the AFT should have liability under § 501 as WTU's agent. Allowing this proposed "agency" theory to circumvent established § 501 law preventing suits against unions would create a hole into which all of the relevant precedent would fall. This should not be allowed.
Plaintiff argues that the AFT, a national federation, is the agent of WTU, the autonomous local, and as a result can be sued under § 501 of the LMRDA. (See Pl.'s Opp. at 16). This argument completely ignores the weight of authority which states definitively that § 501 (a) imposes liability only on individual union officers for breach of their fiduciary obligations and not on labor organizations themselves. See Yager v. Carey, 910 F. Supp. 704, 726 (D.D.C. 1995) ("Section 501(a) of the LMRDA defines the fiduciary duty of officers, agents, and other representatives of labor organizations, requiring each person to hold union money and property for the sole benefit of the union and its members") (emphasis supplied), aff'd, 159 F.3d 638 (D.C. Cir. 1998). A union member cannot bring a claim and a court does not have jurisdiction to entertain claims for fiduciary breach against a labor organization. See Sabolsky v. Budzanoski, 457 F.2d 1245 (3d Cir. 1972) (complaint against unions properly dismissed because LMRDA suits can only be brought against union officials); See also Head v. Brotherhood of Ry., Airline & S.S. Clerks, Freight Handlers, Express & Station Employers, 512 F. 2d 398 (2d Cir. 1975); Pignotti v. Local No. 3 Sheet Metal Workers Int'l Assn, 477 F.2d 825 (80' Cir. 1973); Commer v. McEntee, 145 F. Supp. 2d 333 (S.D.N.Y. 2001), aff'd in relevant part and vacated in part on other grounds, 34 Fed. Appx. 802 (2d Cir. 2002); Sabey v. Local 12230 of United Steelworkers of Am. No. 81-80E, 1982 WL 31338 (W.D.N.Y. Mar. 18, 1982).
Plaintiff's reliance on Coble v. Howard University, 960 F. Supp. 1 (D.D.C. 1997), to support its argument that an international union "may enter into an agency relationship by showing that the local union acted pursuant to an agreement with the international union" (see Pl.'s Opp. at 17), is misplaced. The Coble court actually found that such an agency relationship did not exist. In Coble, the plaintiff claimed that by failing to intercede in an employee's grievance procedure, the international supported and ratified action of the union council and of the local's officers. The Coble court rejected the proposed agency relationship on the grounds that the international union was not the exclusive bargaining agent of the local, and because "[w]ithout evidence that [the International] instigated, supported, ratified or encouraged the Local's activities or that the Local acted pursuant to its agreement with the International, there [is] no agency relationship as a matter of law." 960 F. Supp. at 5 (quoting Moore v. Local Union 569 of the Int'l Bhd. of Elec. Workers, 989 F.2d 1534, 1543 (9th Cir. 1993)).1 Similarly, in United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344 (1922), the Supreme Court confirmed that agency standards apply to labor unions. Although the court recognized that as a general matter, "authorization" might be shown based upon a contract or where the "appearance of authority" could be established, it held that the plaintiff union members in Coronado had failed to introduce any convincing evidence of authorization or ratification on the part of the international. For that reason, the court determined that no agency relationship existed.
The District of Columbia Circuit Court distinguished Coronado from suits involving union constitutions in Mile Branch Coal Co. v. United Mine Workers of America, 266 F. 2d 919 (D. C. Cir. 1959). In Mile Branch, the court found that officers of the local union were agents of the international because they were appointed by the president of the international, and had their salaries paid by the international. The international's constitution specifically authorized the international president to make appointments in two limited categories: "'(1) specified international posts, and (2) such organizers, field and office workers as may be necessary to conduct the affairs of the International Union."' Id. at 921 (footnote omitted). Given these factors, the court concluded the local's officers were closely and directly tied to the international. The court further found a limited agency relationship for the purpose of authorizing the district to act as agent for the international in settling local disputes in accordance with the international's constitution because that constitution authorized a district to discipline any local member who caused a mine to be shut down in violation of a union-management contract. Plaintiff's case here is easily distinguished from Mile Branch. The AFT does not appoint WTU officers or authorize the local district to discipline union members. The direct contractual control of the local by the international, present in Mile Branch, is missing in this case.
Finally, even if Plaintiff's D.C. law agency theory is allowed as an end-run around the established federal law, that theory provides that, "an agency relationship is established 'when one person authorizes another to act on his behalf subject to his control, and the other consents to do so.'" (Pl's. Opp. at 17) (citation omitted).2 Plaintiff has not alleged and cannot allege, that under the audit provisions of the AFT Constitution, the AFT was authorized to act by the WTU, or was subject to the WTU's control. Absent from Plaintiff's argument is any credible suggestion that the local union, the WTU, controlled the national, the AFT, in any manner, much less with respect to the accounting or audit provisions identified.
Plaintiff does suggest that as AFT members, WTU members, could present resolutions and vote at the AFT convention, and that WTU could withdraw from AFT membership. (Pl's. Opp. at 17-18). These vague allegations do not, even if accepted at face value, suggest that WTU controlled the AFT. There is no suggestion the WTU had a majority vote or veto of any kind, its members simply participated in a broader AFT democracy. Similarly, the right to disassociate does not suggest control. The essential element of control is simply missing. Rather, at most, WTU was to perform audits for the benefit of the WTU and its membership, not for the benefit of the AFT. Nothing about the contract alleged by Plaintiff suggests the agency Plaintiff is trying to impose.3
Despite Plaintiff s claim, AFT is not an agent of WTU and therefore, cannot be sued under § 501. The case law makes clear there is no § 501 cause of action against a union, as distinguished from union officers. Plaintiff, by his own admission, cites no case supporting his untenable position that an international union can be the agent of a local and the cases Plaintiff does cite, support AFT's position that no agency has been established. Plaintiff's request that this Court craft a new agency rule that would re-write § 501 should be rejected.
B. Section 501 Claims For Fiduciary Breach Are Cognizable Only Against Union Officials with Control over Union Finances; McElroy Never had Control over WTU Finances and Therefore Owed No Duty to WTU
The law is clear. Section 501(a) of the LMRDA creates a fiduciary duty for officers of labor organizations who have control over union funds requiring them to use the union's money for the exclusive benefit of the organizations' members. 29 U. S. C. § 501(a). Appropriately therefore, courts extend fiduciary responsibilities for the affairs of local unions to officers of national unions only in limited instances where the national union asserts "autocratic control" over the finances of the local. International Union, United Mine Workers of Am. v. District 50, United Mine Workers of Am., 435 F.2d 421, 429 (D.C. Cir. 1970); Aho v. Bintz, 290 F. Supp. 577 (D. Minn. 1968); (see also AFT Mem. at 11-14).
In the present case, in addition to trying to impose a fiduciary duty on the AFT, Plaintiff attempts to impose a fiduciary duty on McElroy, an officer of AFT, for the benefit of the WTU. (See Pl.'s Opp. at 13-14). This claim, however, fails. As a matter of law, Plaintiff's alleged facts4 do not state a claim for breach of fiduciary duty under § 501 because no such duty exists between the officer of a national and the members of an autonomous local. Furthermore, Plaintiff does not even attempt to allege that, prior to the Administratorship, AFT or McElroy ever exercised autocratic, or indeed any, control over the WTU's finances, because that was not the case. In the absence of a duty or autocratic control, McElroy cannot be held liable for a fiduciary breach and Count II must be dismissed.
In support of his position, Plaintiff cites cases where a duty was found to extend from an officer of an international to the members of a local, but in each of those cases, the alleged "fiduciary" played an affirmative role in the financial mismanagement or they generally controlled the local. See, e.g., Stelling v. International Bhd. of Elec. Workers Local Union No.1547, 587 F.2d 1379 (9th Cir. 1978) (despite notice of local's objection, international president directed the local business manager to enter into a contract incorporating terms of an agreement not approved by the locals' members); Council 49, American Fed'n of State, County & Mun. Employees Union v. Reach, 843 F.2d 1343 (11th Cir. 1988) (case involved only the liability of district officers for financial mismanagement of district funds; the international union was not a defendant and no attempt was made to reach beyond the original organization). Johnson v. McGowan, 573 F. Supp. 1051 (E.D.N.Y. 1983) (plaintiff granted leave to file § 501 action against officers of parent for the parent's failure to transfer twenty-five percent of the agency shop fees to the local, as required by the parent's constitution). In the present case, there is no allegation, and cannot be any allegation, that McElroy played such a role. The cases cited by Plaintiff do not contradict Defendants' position; the officers of the national or parent unions were either not defendants in the suits, or they played a direct affirmative, active role in the misconduct alleged.
C. McElroy Did Not Exercise Control Sufficient to Hold Him Liable Under § 501Plaintiff attempts to broaden the standard for a fiduciary relationship to create a duty for McElroy that is "not limited to those duties laid out in the statute" and extending to "all the activities of that officer." (See Pl.'s Opp. at 14). This reading of the statute was previously rejected by the District Court for the District of Columbia. Yager, 910 F. Supp. at 727 states, "[t]his court previously determined section 501(a) only covers actions for violations of financial fiduciary claims." See also Quinn v. DiGiulian, 739 F.2d 637 (D.C. Cir. 1984); Coleman v. Brotherhood of Ry. & S.S. Clerks, Freight Handlers, Express & Station Employees, 340 F.2d 206, 209 (2d Cir. 1965) (§ 501 applies to fiduciary responsibility regarding money and property and is not a catch-all provision under which union officials can be sued on any ground of misconduct).
The cases cited by Plaintiff do not support his expansive reading of § 501.5 While Defendants disagree with Plaintiff's position, assuming arguendo that the fiduciary standard found in § 501 extends beyond financial duties, Plaintiff has not demonstrated that McElroy had the requisite special relationship required, or that he exercised control over the WTU generally or over the WTU officers who failed to conduct audits and embezzled WTU funds, sufficient to create liability under the Act.
The AFT's Constitutional requirement that local unions conduct audits was adopted for the benefit of the local membership, not for the purpose of giving the AFT greater oversight over local union finances. The AFT Constitution simply provides minimum standards to be met by local unions for the benefit of the local membership. This is no different from other provisions in the AFT Constitution setting minimum standards for the protection of local union members.6
These minimum standards are to be implemented by the local union, and the AFT does not open itself up to liability by establishing the requirements. See Phelan v. Local 305 of United Assn of Journeymen and Apprentices of the Plumbing & Pipefitting Indus., 973 F.2d 1050, 1062 (2d Cir. 1992) (international union which did not participate in, ratify, or encourage alleged scheme not liable). Similar to requiring local unions to abide by federal labor law and prohibiting discrimination, the AFT's audit requirement provided a baseline requirement for affiliated locals to follow for the benefit of local members. Defendant McElroy, however, had no fduciary duty with respect to the WTU's audit and cannot be held liable for embezzlement by certain WTU officers where there are no allegations that he had any knowledge of that embezzlement. Even if McElroy had knowledge, and there is no allegation he did, there is no suggestion that he authorized, encouraged or ratified the acts of the WTU officers who committed the malfeasance, as required before liability can be found under § 501.
D. Plaintiff Has Not Met § 501 Statutory Prerequisites
This Court has made clear that demand to bring suit and refusal are mandatory prerequisites to an action under § 501. Yager, 910 F. Supp. at 727 ("some form of request that the union or a governing member of the union bring the action is a requirement that cannot be waived as futile."); see also O'Conner v. Freyman, No. CIV. A. 85-0566, 1985 WL 121, at *2 (D.D.C. May 31, 1985) ("'[T]he provision of the statute [requiring demand to sue] is mandatory and ... its requirement cannot be met by anything short of an actual request. An allegation of the futility of such a request will not suffice.'") (citation omitted). "Only in the event that the union refuses or fails to bring the action may the individual proceed to file suit." Yager, 910 F. Supp. at 726. Saunders never made a demand on AFT or the WTU Board to bring suit against the local WTU officers or McElroy.
The cases Plaintiff relies upon to assert that his claimed attempts to secure relief from the WTU "satisfy §501(b)'s procedural prerequisites" have two common trends which distinguish them from this case. First, the members' complaints were directed to the party in litigation, and second, after receiving the complaints, the local or national union refused to act. See, e.g., Sabolsky v. Budzanoski, 457 F.2d 1245 (3d Cir. 1972) (plaintiffs satisfied § 501 prerequisites by: filing a protest with the union's district executive board challenging actions taken in violation of the district's and international's constitutions; challenging the actions at the union's convention; and, sending letters to the presidents of both the district and international requesting relief from the actions, and because the union failed to act.7 Flaherty v. Warehouseman, Garage & Serv. Station Employees Local Union No. 334, 574 F.2d 484, 487 (9th Cir. 1978) (dismissal of § 501 claim upheld because plaintiff failed to allege that union or its officers had been asked to take corrective action or that the union refused to act); Cefalo v. Moffett, 333 F. Supp. 1283 (D.D.C.) (when members previously complained to the union of wrongs which they assert in litigation and the union takes no action to redress, plaintiff satisfies the § 501(b) prerequisite), modified, 449 F.2d 1193 (D.C. Cir. 1971); Trine Council v. Biller, No. 82-1232, 1982 WL 2038 (D.D.C. May 26, 1982) (§ 501 prerequisite satisfied by showing plaintiffs wrote a letter to the national union, the party who allegedly violated their fiduciary duty, and the union refused to consider the complaint); Woods v. Local No. 12 Sheet Metal Workers Int'l Assn, 438 F. Supp. 578 (W.D. Pa. 1977) (in § 501 action brought against local officers, letter to local charging it with collecting dues in an amount less than required by dues bylaws complied with § 501's demand prerequisite when local officers subsequently failed to act).8 Compofelice v. United Food & Commercial Workers, Local 400, No. 80-0046, 1980 WL 2167 (D.D.C. Oct. 10, 1980) (member's unexcused failure to pursue an intra-union remedy for alleged unfair treatment can be a bar to bringing a claim unless the member shows that the appeal process provided by the union offered no adequate remedy for his particular grievance).
Plaintiff does not provide any specific facts which indicate that he complained to the AFT and the AFT failed to take any action to redress the wrongs about which he complained. Nor does Plaintiff ever suggest he made any demands to anyone, regarding the audit that he, as a member, was supposed to receive. The complaints or "demands" Plaintiff suggests he made in his Opposition and Complaint all involve his request to the WTU for an investigation of the improper 2002 dues deduction from his paycheck or for information about WTU's financial condition.9 The AFT has addressed that complaint and the deduction has been refunded.
Further, as shown in AFT's Motion to Dismiss at 17, all of the actions that Plaintiff alleges he took to satisfy the statutory prerequisite of a demand to the AFT took place after the AFT had initiated an investigation into the wrongdoings of the WTU officers. So even if this Court finds that the Plaintiff met the statutory prerequisite of making a demand upon the AFT, which he did not, unlike the plaintiffs in the cases cited by Plaintiff in his Opposition, who demonstrated that their complaints had been ignored, Plaintiff here fails to show that the AFT ignored either the problems at the WTU or his purported complaints. The AFT has not ignored Plaintiff's complaints. Nor has the AFT refused to act.
E. Plaintiffs Failure to Satisfy Statutory Prerequisites Cannot be Waived on Futility Grounds
Because the AFT is, in fact, acting to address the wrongs that have been perpetrated here, Plaintiff's suggestion of futility is absurd. The cases Plaintiff cites to support his argument that a demand for action by the AFT would have been futile, thus excusing him from exhausting his intraunion remedies, fall into four categories none of which apply here: (1) cases where prior to filing suit the union consistently argued it was acting in compliance with its constitution;10 (2) cases where the union ignored multiple requests to remedy the alleged misconduct;11 (3) cases where the union asserted total control over the disputed subject;12 and (4) cases where the members received a negative response to their written complaint.13
Plaintiff's assertion that his "efforts to obtain internal relief from the WTU and the AFT demonstrate that these condition precedents have been met" is both misleading and a mischaracterization of applicable law. (See Pl.'s Opp. at 19). The demand referred to in § 501(b) is a request that the union or its governing body bring an action for a violation of subsection 501(a). Saunders has made no such request of AFT. Demand to bring suit and refusal are mandatory prerequisites to bringing a § 501 claim and cannot be waived as futile. Yager, 910 F. Supp. at 727. Plaintiff's claims should be dismissed.
F. Plaintiff Does Not Have Standing to Bring a Claim Under § 501 Because He Did Not Seek Leave of Court Prior to Filing the Complaint
In addition to the mandatory prerequisite of demand and refusal, § 501(b) also states that an action may be brought only after leave of court is obtained "upon verified application and for good cause." 29 U. S. C. §501(b). Leave of court and a finding of good cause are mandatory conditions precedent to bringing suit. Without them, the court lacks jurisdiction to hear the claim. Austin v. Trandell, 207 F. Supp. 2d 616, 620 (E.D. Mich. 2002); George v. Local Union No. 639, 98 F.3d 1419 (D.C. Cir. 1996). For all of the reasons stated here and in Defendants' Motion to Dismiss, Plaintiff has not shown, and cannot show, good cause and is precluded from bringing this action for failure to satisfy the statutory prerequisites for bringing a claim.
II. PLAINTIFF'S CLAIM IN COUNT IV FOR BREACH OF CONTRACT UNDER § 301 OF THE LMRA MUST FAIL
In Count IV of his First Amended Complaint, Plaintiff alleges breach of contract pursuant to § 301 of the LMRA, arguing that the AFT failed to monitor WTU's finances. As described in Defendants' Motion to Dismiss, this claim should be dismissed. First, while the AFT Constitution is a "contract" within the meaning of the LMRA, no provision in the AFT Constitution creates a contractual obligation requiring the AFT to monitor the finances of local affiliates. Second, no agency relationship has been created because the AFT did not instigate, support, or ratify the wrongful acts of WTU's former president, treasurer and others. Third, Plaintiff did not comply with the statutory prerequisites that must proceed any claim. Fourth, there is no alleged breach of labor peace. Nothing in Plaintiff's Opposition alters these conclusions.
A. AFT Breached No Duty Under Contract or as an Agent to WTU or its MembersThe legal relationship between an international union and its local affiliates is a well established principle of labor law. The AFT correctly demonstrated (AFT Mem. at 23-25), and Plaintiff has conceded (Pl.'s Opp. 4-5), that the AFT Constitution does not impose a contractual obligation on the AFT to obtain and review the financial records of its local affiliates. The law is also clear that where there is no affirmative duty to act, an international union cannot be held liable on agency theory, as a matter of law, absent evidence that the international instigated, supported, ratified or encouraged the local's activity, or that the local acted pursuant to agreement with the international. Carbon Fuel Co. v. United Mine Workers of Am., 444 U.S. 212 (1979); Phelan v. Local 305 of United Assn of Journeymen, & Apprentices of Plumbing & Pipefitting Indus. of United States & Canada, 973 F.2d 1050 (2d. Cir. 1992); Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283 (3d Cir. 1991).
Plaintiff has not alleged any facts demonstrating that the AFT breached its Constitution, and concedes at several points in his argument that the AFT Constitution does not create a contractual obligation requiring the AFT to ensure that the WTU conducted audits:
Each of these concessions by Plaintiff is followed by an attempt to suggest that the AFT had an implied but unstated duty that should be read into the AFT Constitution. This attempt to expand this labor agreement beyond its express terms, and to distance Plaintiff's allegations from the requirement of § 301, must be rejected by the Court.
Plaintiff attempts to refute the AFT's argument by distinguishing the cases cited in Defendants' Motion to Dismiss. For example, Plaintiff states, "[i]n Brenner v. Local 514, United Bhd. of Carpenters & Joiners of America, 927 F.2d 1283 (3d Cir. 1991), unlike the present case, the international's Constitution did not place any affirmative obligation on its locals to conduct their operations in a specific way." (Pl.'s Opp. at 7). Plaintiff's interpretation of Brenner is, however, incorrect. Indeed, Saunders' legal theories are identical to those advanced (and rejected) in Brenner.
In Brenner, the plaintiffs argued that the international union's failure to "step in" constituted instigation, support, ratification, or encouragement of the alleged discriminatory behavior, and alternatively, that the international union's constitution created a duty to intervene. Similar to the arguments presented by Plaintiff in his Opposition (at 5-6), the Brenner plaintiff argued that an implied duty was created by a union constitution that gave the international broad duties to intervene to correct malfeasance at the local level. 927 F.2d at 1292. The Brenner court found that § 6 of the international's constitution, explicitly reserved the parent's powers of supervision and intervention. Id. at 1291.14 Section 6A of the Carpenters' constitution also granted the international the power to establish or dissolve any local union and "'to regulate and determine all matters pertaining to the various branches and subdivisions of the trade.'" Id. at 1305 (Rosen, J. concurring in part and dissenting in part) (citations omitted) (emphasis supplied). The authority listed in the Carpenters' constitution, as described in Brenner, is almost identical to the various provisions of the AFT Constitution that Plaintiff accumulates to try to impose a duty on the AFT to intervene in the case presented here. (See Pl.'s Opp. at 6).
The Brenner plaintiff's arguments regarding the creation of a fiduciary duty for the parent were explicitly rejected when the court held that retention of regulatory and supervisory powers by an international union in its constitution merely gives a discretionary right, as distinguished from a duty, to intervene in the affairs of a local union. Brenner, 927 F.2d at 1292. Similarly, this Court should dismiss Plaintiff's allegations because Plaintiff has not alleged facts sufficient to demonstrate that the AFT breached its Constitution in violation of §301 of the LMRA.
Plaintiff's attempts to distinguish Intercity Maintenance Co. v. Local 254 Service Employees International Union, 62 F. Supp. 2d 483 (D.R.I. 1999), aff'd in relevant part and vacated in part on other grounds, 241 F.3d 82 (1st Cir. 2001), are similarly unavailing. Although Intercity was brought under a different statutory section than Plaintiffs §301 claim, this difference in Sections is irrelevant because the agency analysis is the same. Intercity is relevant to the current allegations because it discusses whether various interactions between an international and a local are sufficient to create an agency relationship for purposes of imposing liability on the international for acts of the local. The Intercity court rejected the argument that an organizing subsidy from the international to the local was evidence of an express agency relationship. 62 F. Supp. 2d at 498. The Intercity court applied the same general agency standard applicable to Plaintiffs' claim, and its finding supports the conclusion that the AFT cannot be responsible for the acts of the WTU:
Id. at 498 (citations omitted). The Court should not impose or imply a duty for the AFT where one is not explicitly stated in AFT's Constitution.
The Intercity court further rejected the plaintiff's theory (similar to Plaintiff's claim here) that liability for a local union's actions could be imputed to the international affiliate merely because of the hierarchical link between the two unions. Intercity Maint. Co., 62 F. Supp. 2d at 496-97. The Intercity court held that it is well established in the field of labor law that the exercise of supervisory powers by an international union in some matters of jurisdiction and governance is insufficient to establish a general agency relationship between the international and a local for all other-matters where the local is afforded significant autonomy in many areas of operation. Id. at 497; Borowiec v. Local No. 1570, 889 F.2d 23, 26 (1st Cir. 1989). Plaintiff cannot distance himself from these well established principles of labor law. His attempt to distinguish Defendants' cases is a desperate attempt to avoid the inevitable failure of his claims.
Finally, Plaintiff argues that Federal Prescription Service, Inc. v. Amalgamated Meat Cutters & Butcher Workmen of North America, 527 F.2d 269 (8th Cir. 1975), is not "remotely relevant" to this case. (See Pl.'s Opp. at 8). That case describes the standard of proof necessary to find an international liable for the acts of a local. In Federal Prescription, the employer sued a local and international alleging violations of the statutory prohibition against secondary boycotts. The court applied the accepted standard that an international is liable for a local's acts when there is clear proof of "authorization, participation, or ratification." Federal Prescription Serv., 527 F. 2d at 275. In an effort to reach the international for the acts of the local, the plaintiff alleged that the international's payment of strike benefits to local members and receipt of a weekly strike status report from the local amounted to ratification of the local's actions. Id. at 276-77. The court disagreed, holding that the plaintiff failed to demonstrate that the international ratified the local's actions. The international was simply carrying out a "normal union function" by paying strike benefits.15 Id. at 277. Similarly, Plaintiff here has failed adequately to allege that the AFT had any knowledge of, much less ratified, authorized or participated in the embezzlement by the former WTU officers and employees.
B. Breach of Labor Peace Remains a Requirement For Individuals Under § 301Plaintiff overstates when he claims that a breach of labor peace is no longer necessary for a § 301 claim. Although United Assn of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the United States & Canada v. Local 334, United Ass 'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the United States & Canada, 452 U. S. 615 (1981) limited and distinguished 1199 DC, National Union of Hospital & Health Care Employees v. National Union of Hospital & Health Care Employees, 533 F.2d 1205, 1208 (D. C. Cir. 1976) courts have retained the labor peace requirement where an individual member brings a suit for breach of contract based upon an international union's constitution. See Alexander v. International Union of Operating Engineers, 624 F.2d 1235, 1238 (5th Cir. 1980) (for a union member to sue, constitutional violation must "create a threat to industrial peace or have a significant impact upon labor-employer relations"); Rutledge v. Aluminum, Brick & Clay Workers Int'l Union, 737 F.2d 965, 969-70 (11th Cir. 1984); Gable v. Local Union No. 387 Int'l. Assoc. of Bridge, Structural, & Ornamental Iron Workers, 695 F. Supp. 1174 (N. D. Ga. 1988) (discussing split in courts and dismissing plaintiff s claim for failure to allege a significant impact on labor relations); Finnie v. District No. I - Pac. Coast Dist. Marine Engineers Beneficial Assn, 538 F. Supp. 455 (N.D. Cal. 1981).
Contrary to Plaintiff's argument, the "significant impact" test was not completely abrogated by the Plumbing & Pipefitting case. In Plumbing and Pipefitting the Supreme Court was careful to limit its holding to the facts before it, namely a local union suing an international union alleging that the international violated the international constitution. Id. 452 U.S. at 627 n.16. Subsequently, in Woodell v. International Bhd. of Elec. Workers, Local 71, 502 U.S. 93 (1991), the Supreme Court held that § 301 confers jurisdiction over suits filed by union members based on the breach of an international's constitution but did not address the "significant impact" requirement. Consequently, this requirements bars a plaintiff from asserting § 301 (a) claims in some jurisdictions. 161 The AFT urges the Court to apply the well reasoned decisions in Finnie and Gable, which are consistent with the longstanding federal policy of non-interference in the internal affairs of union and labor matters. See Wirtz v. Local 153 Glass Bottle Blowers Assn, 389 U.S. 463, 470-71 n.10 (1968).
Plaintiff's claim of a breach of the AFT's Constitution is simply a matter of internal union affairs, and courts are hesitant to interfere in such matters. In this instance, the AFT has placed the WTU in administratorship, the WTU's collective bargaining agreements remain in place, the WTU members continue to teach in the D.C. Public Schools and no discernable threat to labor peace exists. The Court should refuse to entertain Count IV of Plaintiff's Complaint.
III. PLAINTIFF'S CLAIMS IN COUNTS VI AND VII FOR COMMON LAW BREACH OF FIDUCIARY DUTY AND NEGLIGENCE ARE PREEMPTED BY §301 OF THE LMRA AND MUST BE DISMISSED
Count VI of Plaintiffs First Amended Complaint alleges a common law breach of fiduciary duty. Count VII alleges common law negligence. Each of these claims is pled as a state law claim. Plaintiff concedes, as he must, that if these claims are state law claims, they are derived from the AFT Constitution and are preempted under the LMRA. (See Pl.'s Opp. at 27); see also Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 210-11 (1985); Pearson v. UAW Int'I Union, No . 02-CV-70060-DT, 2002 WL 1880749, at *3 (E.D. Mich. July 9, 2002); BIW Deceived v. Local S6 Indus. Union of Marine & Shipbuilding Workers of Am., 132 F. 3d 824 (1st Cir. 1997). As stated by the Supreme Court, "the preemptive force of §301 is so powerful as to displace entirely any state cause of action `for violation of contracts between an employer and a labor organization.'" Franchise Tax Bd. of State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 23-24 (1983) (quoting Avco Corp. v. Aero Lodge No. 735, Int'l Assn of Machinists & Aerospace Workers, 390 U. S. 557 (1968)). "[I]f a federal cause of action completely preempts a state cause of action, any complaint that comes within the scope of the federal cause of action necessarily 'arises under' federal law." Franchise Tax Bd., 463 U.S. at 23-24 (citing to Avco).
After being informed of LMRA's mandatory preemption, Plaintiff has attempted to convert his state claims into federal common law claims to avoid preemption and the resulting dismissal. Plaintiff, however, cites no cases recognizing a federal common law claim for either of the torts he alleges. There is no federal common law tort of negligence. Bryan v. Norfolk & W. Ry. Co., 21 F. Supp. 2d 1030, 1038 (E.D. Mo. 1997 aff'd, 154 F.3d 899 (8th Cir. 1998). Because Plaintiff's state law claim for negligence is preempted by federal law, the only claim he can bring is one based upon violation of a federal statute. Id. Similarly, there is no federal common law cause of action for breach of fiduciary duty. Eisenman v. Continental Airlines, Inc., Civ. No. 96-1368 1996 U.S. Dist. LEXIS 21690, *8 at (D.N.J. June 27, 1996), rev'd on other grounds, 974 F. Supp. 425 (D.N.J. 1997).17 See also Rego v. Westvaco Corp., 319 F.3d 140, 148 (4th Cir. 2003) (plaintiff's ERISA and federal common law claims for negligent misrepresentation and breach of fiduciary duty dismissed for failure to state claims). Breach of fiduciary duty arises under state law.18 Id.
Since the Supreme Court's pronouncement in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938), that "there is no federal common law," "the Court has recognized the need and authority in some limited areas to formulate what has come to be known as `federal common law."' Texas Indus. Inc. v. Radcliffe Materials, Inc., 451 U. S. 630, 640 (1981). That area, however, is narrowly limited to actions involving the rights and obligations of the United States, interstate and international disputes and admiralty cases. Id. at 641. Although there is a limited federal common law grounded in national labor policy (Allis-Chalmers v. Lueck, 471 U.S. at 210-11), that law arises in the context of and from the interpretation of the relevant and applicable labor statutes and is the very law which preempts Plaintiff's tort claims here. Accordingly, there is no separate and independent federal common law of tort upon which Plaintiff can rely. Plaintiff's claims are limited to those allowed by federal labor statutes (and the federal common law interpreting those statutes). Plaintiff's claims are state common law claims, and those claims are preempted. They should not be allowed.
IV. COUNT V OF PLAINTIFF'S COMPLAINT DEMANDING REVIEW OF AFT'S RECORDS SHOULD BE DISMISSED
AFT agrees that Plaintiff is entitled to examine the financial records of the WTU. Under §431 (c) of the LMRDA, however, Plaintiff is required to request the records from the AFT prior to filing suit.19 Plaintiff never asked the AFT to provide him with WTU's financial records. In each of the cases Plaintiff cited to show that the demand requirement is not a precondition to filing suit, the union had waived its right to request a showing of just cause by ignoring the members' request. These cases are inapplicable to the instant case because Plaintiff here made no request of the AFT to examine WTU's financial records and the AFT will not waive this prerequisite to suit. In any event, because AFT is prepared to make the WTU's records available to Plaintiff consistent with his rights as a WTU member, no actual dispute exists. The claim should be dismissed.
V. PLAINTIFF DOES NOT HAVE STANDING TO BRING A DERIVATIVE ACTION SUIT
As stated in AFT and McElroy's Motion to Dismiss (AFT Mem. at 34-36), Plaintiff has not met the requirements necessary to bring a derivative action suit under Fed. R. Civ. P. 23.1. As explained in this brief and in Defendants' prior brief, Plaintiff has not made the required presuit demands to bring his claims. Furthermore, Plaintiff is not representative of the WTU Membership. In their Motion to Dismiss, Defendants identified concerns raised in open court by representatives of other members of the WTU, regarding Plaintiff's representative capacity and potential conflicts of interests. Defendants raise these concerns because of their bearing on a determination of Plaintiff's role as a representative plaintiff. Based upon these failures, Plaintiff's claims should be dismissed.
For the reasons stated above, the Court should dismiss all of the Counts against the AFT and McElroy for failure to state a claim upon which relief can be granted and all of the Counts which essentially duplicate the AFT's restitution action against other third parties currently before this Court. Finally, Plaintiff's claims should also be dismissed on equitable grounds because his action, which duplicates the claims previously brought by AFT against the individual defendants, interferes with the lawsuit brought by AFT, is counterproductive to efforts to rebuild the WTU, interferes with AFT's lawful administratorship of WTU and simply impose a financial burden that the teachers of Washington, through the AFT, should not be forced to bear.
James M. Cole (D.C. Bar No. 385857)
April 11, 2003
1. Yelen v. Banks, 146 A.2d 569 (D.C. 1958), cited by Plaintiff to describe the duties of an agent involved a rooming house dispute, is simply not applicable to the present case. It has no precedence in labor disputes. At best, Yelen stands for the proposition that Plaintiff may disassociate from the WTU.
2. The elements of common law agency are "(1) consent; (2) fiduciary duty; (3) absence of gain or risk to the agent; and (4) control by the principal. The element most essential to the demonstration of any agency relationship is that of 'control.'" Boss v. International Bhd. of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, 567 F. Supp. 845, 847 (N.D.N.Y. 1983) (citations omitted), aff'd, 742 F.2d 1446 (2d Cir. 1983).
3. Indeed, Plaintiff directly contradicts himself arguing here that WTU controlled the AFT with regard to audits (Pl.'s Opp. at 17-18) while in other places arguing that the AFT, through McElroy, had control over the WTU's audit obligations (Pl.'s Opp. at 14-15).
4. Plaintiff seeks inappropriately to rely on documents and facts that are not part of the Complaint for 12(b)(6) purposes. The Court is urged to disregard the references to AFT's website, notwithstanding the fact that the advice on the website does not establish "control" of locals by the AFT (the advice, as it relates to WTU's obligation to conduct audits, simply states that WTU shall "contract for an outside audit that meets the standards of generally accepted accounting principles"). Although the Court may rely on matters outside the pleadings when deciding a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(l) (Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992)), reliance on material outside the pleadings is improper when deciding motions to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) (Kowal v. MCI Communications Corp., 16 F. 3d 1271, 1276 (D.C. Cir. 1994)).
5. Pignotti v. Local No. 3 Sheet Metal Workers Int'l Assoc., 477 F.2d 825 (8th Cir. 1973) involved a trustee of an international who was found liable for breach of fiduciary duty where the international imposed a trusteeship on the local union for the express purpose of preventing members from exercising their statutory right to vote. Pignotti supports only the conclusion that the AFT Administrator who currently runs the WTU has a fiduciary duty to the WTU, a duty which Defendants acknowledge. The other cases cited by the Plaintiff do not stand for the proposition that a fiduciary breach extends beyond financial malfeasance; Johnson v. McGowan, 573 F. Supp. 1051, 1055 (E.D.N.Y. 1983) ("[i]n granting the plaintiff leave to file his § 501 complaint, I make no finding on the merits of his allegations of fiscal impropriety"); Council 49 American Fed'n of State, County & Mun. Employees Union v. Reach, 843 F.2d 1343 (11rd Cir. 1988) (individual members of union board jointly and severally liable for damages resulting from breach of fiduciary duty which occurred when they knowingly permitted a union officer to benefit from the wrongful use of union funds).
6. For example Article IV, § 5 provides, "the conduct of elections shall be consistent with the standards for such elections developed under Title IV of the Labor-Management Reporting and Disclosure Act." Like the audit requirement, the election safeguards benefit local members by requiring local unions to apply the basic democratic principles required by Congress and enacted in the LMRDA. See 29 U.S.C. §§ 401 to 531. The AFT, however, has not dictated the precise election procedures to be used by local unions, and the AFT, in the absence of ratification or participation, could not be liable for a local's violation of the LMRDA's requirements. Similarly, Article IV, § 10 provides that the AFT will revoke the charter of any local union that limits its membership on the basis of race, creed, sex, sexual orientation, social, political or economic status or national origin. Again, the AFT is not responsible for policing local union conformance with this rule, and could not be held liable under agency theory for the discriminatory acts of a local. See Laughon v. International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists & Allied Crafts of the United States & Canada, 248 F.3d 931, 936 (9th Cir. 2001); EEOC v. Regency Architectural Metals Corp., 896 F. Supp. 260, 270-71 (D. Corm. 1995).
7. Note, however, that the Sabolsky court dismissed the claims against the international and local unions because unions are not proper § 501 defendants. This is the same result urged by Defendants here.
8. Woods did not involve an effort to satisfy the demand requirement as to an international by pointing to an alleged demand to a local.
9. As "demands" Plaintiff identifies (1) summer of 2002 requests for refunds of the July 2002 improper dues deduction, (2) a November 2002 letter demanding a refund and investigation of the dues overdraft, (3) a November 21, 2002 picket in which demands were made for new elections (a procedure for which is provided in the WTU Constitution - and which Plaintiff does not seek in this suit), redress of the improper dues deduction, and vague requests for "answers" and the restoration of integrity; and (4) a WTU membership request for a refund of the unauthorized dues deduction and for a general membership meeting. (Pl.'s Opp. at 20-21). All of these "demands" relate to the Plaintiffs request for a refund of overpaid dues or for information. That refund has been paid and an extensive amount of information has been provided to all WTU members. None of these "demands" was specific or directed enough to constitute, or ever imply, a request to either union, the AFT or the WTU, or to any of the unions' officers or directors, to allow the bringing of a § 501, or any other, lawsuit against McElroy, the AFT, or any of the other Defendants. Finally, AFT has brought suit against all of the bad actors here, despite the lack of a demand.
10. See, e.g., McNamara v. Johnston, 522 F.2d 1157 (7th Cir. 1975) (plaintiffs excused from making a demand on the union when, prior to filing suit, the union consistently and vigorously argued that it was acting in compliance with its constitution; Sabolsky v. Budzanaski, 457 F.2d 1245 (3d Cir. 1972) (exhausting internal remedies would have been futile due to the local officers' interpretation of the constitution)).
11. See, e.g., Quinn v. DiGiulan, No. 81-1921, 1983 WL 2005 (D.D.C. May 29, 1983) (formal request to sue would be futile when the union ignored previous requests to remedy the alleged misconduct), modified, 739 F.2d 637 (D.C. Cir. 1984). The Plaintiff in Quinn was excused from making a demand because the local union refused to accept his member dues, suspended him for allegedly failing to pay his dues, and instructed members of the local not to work on any jobs with him because he had run for local union office; Saunders can allege no such facts.
12. See, e.g., Hood v. Journeymen Barbers, Hairdressers, Cosmetologists & Proprietors Int'l Union of Am., 454 F.2d 1347, 1354 (7th Cir. 1972) (because defendants were in financial control of the disputed union pension funds, it would have been futile to make a demand for an accounting to the very same individuals who mismanaged the funds); Pawlak v. Greenawalt, 464 F. Supp. 1265 (M.D. Pa. 1979) (demand would have been futile when the national denied equal opportunity to union members to express their views on proposed bylaw amendments, denied members access to opinion of union counsel, denied members access to a mailing list of union members, denied members the right to speak at a union meeting considering adoption of bylaws and mailed a statement to union members which was false and misleading).
13. See, e.g., Wade v. Teamsters Local 247, 527 F. Supp. 1169 (E.D. Mich. 1981) (because multiple requests by plaintiffs to the executive board, including the filing of internal union charges, followed continuous refusals to act, exhaustion of other internal remedies was futile).
15. While the Court is strongly urged to ignore evidence which is not alleged in the Complaint, see footnote 4 above, the AFT notes that providing advice is analogous to the support given by the unions in Intercity Maintenance Co. and Federal Prescription Services, Inc., and is properly characterized as "a normal union function" insufficient to establish a general agency relationship between the AFT and the WTU with respect to the former officers embezzlement of WTU funds.
16. For example, in Finnie, 538 F. Supp. at 460, the court held that a union member could sue his local for violation of the international constitution, but only if the significant impact requirement is met. In Finnie, the district court dismissed the complaint because there were no allegations that the dispute had a potentially significant impact upon labor-management relations or industrial peace. Id.. The court read Plumbing and Pipefitting to stand for the limited proposition that "suits between a local and an international by their very nature have a potentially significant impact upon labor-management relations and industrial peace . . . ." Id. at 459. Suits brought by individual union members, however, do not carry the same presumption. Similarly, in Gable v. Local Union No. 387 Int'l Ass'n of Bridge, Structural, and Ornamental Iron Workers, 695 F. Supp 1174 (N.D. Ga. 1988), the court declined to extend the holding of the Plumbing and Pipefitting case to member versus union suits because it felt that there are "principled reasons" to retain the "significant impact" requirement. Id. at 1177. Importantly, the Gable court noted that the express language of § 301 (a) provides federal jurisdiction over "`suits for violation of contracts between an employer and a labor organization,"' but does not explicitly create a right of action for union members against their unions. 695 F. Supp. at 1178 (citation omitted). Accordingly, the court stated that if courts are going to interpret the statute to give union members exclusive federal forum, the union member must first establish that the dispute would have a "significant impact" on labor relations. Id. Finally, the Gable court noted that its ruling was consistent with Plumbing and Pipefitting because that case concerned a union v. union lawsuit. Id. at 1178 n.5.
17. There are certain circumstances where Congress has so completely preempted a particular area, that any civil complaint raising this select group of claims is federal in character. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987). This complete preemption doctrine applies to claims arising under ERISA and the LMRA. Eisenman v. Continental Airlines, Inc., 974 F. Supp. 425, 430 (D.N.J. 1997).
18. Aside from the unpublished case of Duran v. AT&T Corp., No. C-2-99-418, 2000 WL 33592869 (S.D. Ohio, Aug. 31, 2000, which cites no precedent and has been followed by no other court on this point), Plaintiff has cited no cases supporting his claims. Importantly, in Duran, while the court considered the plaintiff's argument that his claims of promissory estoppel, breach of fiduciary duty and breach of an alleged strike agreement should be permitted as federal common law claims rather than preempted by the LMRA, the court dismissed each of those claims on other grounds. Moreover, the discussion in Duran suggests that the federal common law applied is that arising under the rubric of, and in the context of, the federal labor law which evolves out of and is based upon federal labor statutes. This is the very law which Defendants' say preempts Plaintiff's claims. If there were an independent federal common law tort of breach of fiduciary duty or negligence in this context, or there were federal common law breach of contract standards that could be asserted without reference to the prerequisites in the federal labor statutes that create and control the relevant relationships between labor unions and which define the duties and obligation of union officials, the labor statutes and their prerequisites would become meaningless. Plaintiff's proposed creation of an independent common law in this area would swallow all of the established law, and contravene the legislative intent and expectation of Congress. The statutes control this area. Plaintiff's claims are preempted.
19. This sensible rule is designed to avoid the very circumstance presented here. Plaintiff, as a WTU member, wants access to the WTU's financial records. WTU's Constitution allows such access (Art. X, § 5). The AFT agrees, and is prepared to give Plaintiff the access he is entitled to under the Constitution. There is no need for a suit. Plaintiff is wasting both this Court's and the Union's resources by pursuing this issue in this forum without first independently asking for what AFT acknowledges is entitled to receive.
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