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May 20, 1991


The opinion of the court was delivered by: Brotman, District Judge:


This case involves a dispute between plaintiffs, members of Painters' Local No. 277 (herein "Union") in Atlantic City, and the Union over certain conduct of the Union in 1980 and 1981. Defendants have moved for dismissal of the complaint pursuant to Rule 12(b), Fed.R.Civ.Pro., or in the alternative, summary judgment pursuant to Rule 56, Fed.R.Civ.Pro., principally on grounds of collateral estoppel and mootness. For the following reasons, the motion will be granted in part and denied in part.


Plaintiffs originally instituted suit in this court on March 2, 1981 alleging violations of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), §§ 101(a)(2), (a)(5) and 609, as amended, 29 U.S.C. § 411(a)(2), (a)(5) and 529. Pygatt v. Painters' Local No. 277, Civ.No. 81-641(SSB) (D.N.J. 1981). Plaintiff Pygatt, a black man with 30 years experience as a paperhanger, became a member of the Union in July 1977. Plaintiff Love, a black man who was enrolled in the Union's apprenticeship program, became a member of the Union in February 1978.

Plaintiffs complained that the Union discriminated against them by failing to refer them out to employers seeking qualified paperhangers during the casino construction boom then underway in Atlantic City. Plaintiffs also alleged that they were penalized by the Union for speaking out against the Union's discriminatory practices by imposing fines on them, refusing to accept payment of dues, failing to provide a full and fair hearing on charges against them and expelling them from the Union. Under the LMRDA, 29 U.S.C. § 529, it is unlawful for a labor organization or its officers to fine, suspend, expel, or otherwise discipline any of its members for exercising rights of free speech guaranteed by 29 U.S.C. § 411(a)(2) or without affording a full and fair hearing as required by 29 U.S.C. § 411(a)(5).

The facts leading up to these allegations involve a series of incidents in which plaintiffs Pygatt and Love voiced their complaint that defendants were discriminating against them on account of their race. In June 1980, plaintiff Love attempted to place a classified ad in The Press, a local newspaper of general circulation, alleging discrimination by the Union.*fn1 At a Union meeting on June 3, plaintiffs stood up and charged the Union with discriminatory referral practices. Later that month, The Press printed an article about a meeting of minority tradesman organized by plaintiffs and quoted Pygatt's criticism of the Union. The Union then filed charges against Pygatt for disloyalty, libel and other infractions of the Constitution of the Brotherhood. Love was charged with similar violations. On July 5, 1980, the Union's financial secretary, William L. Kinzer, charged Love with additional infractions, including libel for criticizing his maintenance of the Union's records.

On July 5, a Union trial was held on these charges, resulting in a $3,200 fine against Pygatt and a $3,650 fine against Love. The Union informed plaintiffs that they could not appeal these fines unless they paid 20% of the amount, which they did not do. On August 5, Love was fined an additional $1,200 for his criticism of the Union's financial secretary. On September 26, 1980, Pygatt was fined another $1,000 for picketing the Union headquarters. Since these were their second offenses, the Union told them that the entire $4,200 was to be paid in full before an appeal could be filed. Pygatt repeatedly attempted to pay his dues to the Union, but the Union refused to accept the dues until he paid the fines and expelled him. Subsequently, the Union expelled Love as well.

Rather than pursue their appeals within the Union, plaintiffs brought suit in this court alleging violations of LMRDA by the Union and state law tortious interference with employment rights by Business Manager James Brennan.*fn2 On plaintiffs' motion for a preliminary injunction, this court decided to stay any further proceedings and ordered the International to consider the matter on the merits within four months. Pygatt v. Painters' Local No. 277, supra, Order of April 27, 1981.

The International's General Executive Board considered plaintiffs' appeal and rendered a decision on November 5, 1981. It found that the underlying charges of the Local Union's trial board related to plaintiffs' false statements to The Press, libel and slander against the business manager and financial secretary, attempting to run a classified ad in The Press critical of the Union, abusive comments at membership meetings, "and the like." The International concluded that such actions fell within plaintiffs' free speech rights, which the courts have protected from union disciplinary action. The International reversed the decision of the trial board and rescinded all fines. It explicitly limited its decision "to the Trial Board actions described herein that are the subject of this appeal." Defendants' Exhibit 5 at 2.

Meanwhile, concurrent with their suit in this court, plaintiffs pursued charges before the National Labor Relations Board (NLRB). On December 22, 1980, plaintiffs filed an Unfair Practice Charge before the NLRB alleging that the Union refused to refer them for employment in violation of sections 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act of 1947 (NLRA), as amended, 29 U.S.C. § 158. After two days of hearings, the Administrative Law Judge (ALJ) issued a decision on December 28, 1981, finding that the Union had refused to refer Pygatt out for jobs, in violation of sections 8(b)(2) and 8(b)(1)(A) of the NLRA, "because he engaged in conduct viewed by union officials as disloyal." Polis Wallcovering Co., 262 NLRB 1336, 1343. The conduct referred to by the ALJ as "disloyal" was the same conduct underlying Pygatt's charges in his present complaint before this court, i.e., expression of Pygatt's opinion on the Union's discriminatory referral practices.*fn3 The ALJ ordered that Pygatt "be made whole for any loss of earnings suffered as a result of the discrimination against him by payment of a sum equal to that which he normally would have earned as wages from the date of discrimination against him until such time as respondent Union properly refers him for employment, less net interim earnings during such period." Id. at 1344.

With respect to Love, the ALJ found no violation of the NLRA on account of testimony on behalf of the Union that its contract with the employers only authorized it to refer qualified apprentices. Love had been removed from the apprenticeship on the basis of his past poor employment record, a recent discharge for flagrant misconduct and his failure to meet the classroom attendance requirements, and no challenge to the legitimacy of the removal was made. Id. at 1340. Therefore, the ALJ concluded, "Local 277 would not have referred Love even if he had not engaged in conduct found offensive by union officials and which formed the predicate for internal union discipline." Id.

The ALJ's decision was affirmed by a panel of the NLRB on July 27, 1982, ruling on the exceptions filed by the Union and Love.*fn4 262 NLRB 1336. The Union and Love then filed a petition for review before the Third Circuit Court of Appeals, which affirmed the Board's decision on liability of the Union. The Third Circuit found that "there was substantial evidence to support the Board's finding that the Union's refusal to refer Pygatt for employment after June, 1980 was motivated by its hostility to Pygatt's criticism." Local Union No. 277, International Brotherhood of Painters and Allied Trades v. NLRB, 717 F.2d 805, 812 (3d Cir. 1983). However, under the Supreme Court's ruling in NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), the claimed unavailability of employers willing to hire Pygatt is an affirmative defense. Since the Board "did not determine whether the Union carried its burden of proving that there were no requests for paperhangers from employers who would accept Pygatt if he were referred," the Third Circuit remanded to the Board to consider that issue. Local Union No. 277, 717 F.2d at 813.

With respect to Love, the Third Circuit deferred to the Board's finding that the apprenticeship committee expelled Love for legitimate reasons and that this disqualified him from receiving job referrals. Id. at 811. The court also affirmed the Board's denial of Love's motion to reopen the record. Id. at n. 7.

On remand, the Board issued a supplemental decision and order on June 29, 1984, reaffirming its initial findings and ordering its same make-whole remedy. The Board concluded that the Union "presented no credible or probative evidence demonstrating that referring Pygatt would have been futile because no area contractors with jobs available would have hired him." Painters Local 277 (Polis Wallcovering Co.), 271 NLRB 58, 59. This decision was enforced by the Third Circuit in a memorandum decision sion on March 27, 1985, 760 F.2d 258 (3d Cir. 1985).

While plaintiffs were pursuing their remedies before the International and the NLRB, this court retained jurisdiction over their LMRDA claims. Plaintiffs also had filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC), which on August 25 and 26, 1982 issued to each plaintiff a Notice of Right to Sue the Union for employment discrimination in violation of Title VII, § 704(a), 42 U.S.C.A. § 2000e-3(a).*fn5 Subsequently, on October 25, 1982, plaintiffs filed a motion for partial summary judgment, expedited hearing on damages and leave to file an amended complaint to assert a claim under Title VII. According to the docket sheet, the magistrate granted plaintiffs' motion to amend complaint on February 24, 1983.

On January 10, 1984, defendants filed a motion for summary judgment on multiple grounds of statute of limitations, preemption, mootness and estoppel. On February 16, 1984, prior to any ruling by this court, the parties entered in a stipulation of voluntary dismissal without prejudice on grounds "that a more orderly and economical resolution of the instant causes of action may be achieved by awaiting the final outcome of the NLRB proceedings before submitting the instant causes of action to civil trial." The stipulation, which was approved by the court, also stated that defendants' defenses and claims raised in its summary judgment motion "shall be preserved"; defendants also reserved the right to renew them upon reinstitution of plaintiffs' complaint.

After plaintiffs' suit in this court was voluntarily dismissed without prejudice and the NLRB had issued its supplemental order against the Union, Pygatt brought a second Unfair Practice Charge before the NLRB alleging that the Union had violated sections 8(b)(1)(A) and 8(b)(2) of the NLRA by causing the Claridge Hotel to discharge him. On August 12, 1985, the ALJ issued an opinion, finding that the Union had committed the unfair labor practices and ordering that Pygatt be made whole. The Board affirmed the ALJ's decision on January 22, 1986. Local Union No. 277, International Brotherhood of Painters (Del E. Webb), 278 NLRB 169.

Since the parties disagreed over the amounts the Union owed to Pygatt in both the Polis Wallcovering and Del E. Webb cases, the Regional Director ordered consolidation and a hearing. On June 27, 1986, the ALJ issued an order delineating the amounts to be paid to Pygatt for lost wages, replacement of medical health insurance, pension contributions and interest. 282 NLRB 405. The Union filed exceptions and a ...

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