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Hotel and Restaurant Employees and Bartenders Union Local 54 and Frank Gerace v. Read

argued: August 4, 1987.

HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS UNION LOCAL 54 AND FRANK GERACE, PRESIDENT AND FRANK GERACE AND FRANK MATERIO, INDIVIDUALLY,
v.
WALTER N. READ, CHAIRMAN, DONALD THOMAS, COMMISSIONER, CARL ZEITZ, COMMISSIONER, JOEL JACOBSON, COMMISSIONER AND E. KENNETH BURDGE, COMMISSIONER, CONSTITUTING THE NEW JERSEY CASINO CONTROL COMMISSION AND THOMAS O'BRIEN, DIRECTOR, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF GAMING ENFORCEMENT AND THOMAS KEAN, GOVERNOR. HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL 54, APPELLANTS



Appeal from the United States District Court for the District of New Jersey, D.C. Civ. No. 81-2630.

Seitz, Mansmann and Greenberg, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

The Hotel and Restaurant Employees and Bartenders International Union Local 54 ("Local 54") appeals the order of the district court granting the motion for summary judgment of the New Jersey Casino Control Commission ("Commission"), the Commission's chairman and members, the New Jersey Division of Gaming Enforcement ("Division"), the Division's director, and Thomas Kean, Governor of New Jersey, on Local 54's claims that certain sections of the New Jersey Casino Control Act ("Casino control Act") violate its rights under the United States Constitution. See New Jersey Casino Control Act, N.J. Stat. Ann §§ 5:12-1 to -190 (West Supp. 1987). Specifically, Local 54 argues that sections 86(f) and 93 of the Casino Control Act violate the union's first amendment rights of freedom of association and expression and its fourteenth amendment right of due process.

JURISDICTION AND SCOPE OF REVIEW

In this action for declaratory and injunctive relief, Local 54 invoked the jurisdiction of the district court pursuant to 28 U.S.C. §§ 1331, 1343 and 2201 (1982). We have jurisdiction under 28 U.S.C. § 1291 (1982) to review the order of the district court granting appellees' motion for summary judgment. Our review of grants of summary judgment is plenary. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).

FACTS

Local 54 is a New Jersey labor organization that represents, among others, casino industry employees. Frank Gerace was the president of Local 54; Frank Materio was a business agent of Local 54.

On September 28, 1982, the Commission issued an order ("1982 order") requiring that Gerace, Materio, and Karlos LaSane be removed as officers, agents or principal employees of Local 54. The 1982 order further provided that if the named individuals retained their union positions beyond a specified date, Local 54 would be prohibited from collecting dues from certain casino industry employees. the basis for the Commission's order was a finding that Gerace and Materio were disqualified under § 86(f) of the Casino Control Act was a result of their association with Nicodemus Scarfo, a reputed member of organized crime, and that La Sane was disqualified under section 86(c) as a result of a criminal conviction.

On September 12, 1984, the Commission entered an order ("1984 order") requiring that Gerace, Materio, and LaSane "cease acting as officers, agents or principal employees of Hotel and Restaurant Employees and Bartenders International Union Local 54 by September 28, 1984."*fn1

The lengthy procedural history of this action need not be recounted for the purposes of this appeal. See Hotel and Restaurant Employees and Bartenders Int'l Union Local 54 v. Read, 641 F. Supp. 757 (D.N.J. 1986) (setting forth procedural history of this action). Local 54 chose to pursue its federal claims against the Casino Control Act in the federal court. The district court rejected its claims. Id. This appeal followed.

THE RIGHTS ASSERTED BY THE UNION

As a threshold matter, we must determine the nature of the rights that the union claims were violated by the application of the Casino Control Act. It is necessary to distinguish the rights which are asserted by the union form those which were asserted by the disqualified union officials. The disqualified union officials chose to pursue their claims in the New Jersey state court, which rejected those claims and upheld the challenged sections of the Casino Control Act. In the Matter of Hotel and Restaurant Employees and Bartenders Int'l Union Local 54, 203 N.J. Supper. 297, 496 A.2d 1111 (App. Div. 1987). The officials' petitions for further appellate review were denied. In re Local 54, 102 N.J. 352, 508 A.2d 223 (1986); Gerace v. New Jersey Casino Control Commission, 475 ...


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