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Dzwonar v. McDevitt

February 15, 2002

REGINA DZWONAR AND CYNTHIA A. BURGESS, PLAINTIFFS-RESPONDENTS
v.
ROBERT MCDEVITT AND LOCAL 54 OF THE HOTEL EMPLOYEES RESTAURANT EMPLOYEES INTERNATIONAL UNION, DEFENDANTS-APPELLANTS, AND ALAN M. COHEN, JABIEL SANTIAGO, ALBERT SICILIANO, AND LOCAL 54 EXECUTIVE BOARD, DEFENDANTS



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, L-2088-98.

Before Judges Havey, Braithwaite and Coburn.

The opinion of the court was delivered by: Coburn, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2002

This appeal by defendants Local 54 of the Hotel Employees and Restaurant Employees International Union ("Local 54" or the "union") and its president, Robert McDevitt, brings before us for review a judgment on two distinct causes of action that exceeds a half million dollars.

Plaintiff Regina Dzwonar's claim was based on the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 ("CEPA"). The jury awarded her damages of $84,000, to which the trial court added prejudgment interest and an award of $168,459.37 for counsel fees and costs pursuant to N.J.S.A. 34:19-5(e).

Plaintiff Cynthia A. Burgess's claim was based on the tort of invasion of privacy. The jury awarded her compensatory damages of $250,000 and punitive damages of $50,000. The judge ordered prejudgment interest on the compensatory award.*fn1

Defendants moved for judgment, pursuant to Rule 4:40-1, when plaintiffs concluded the presentation of their evidence, and they renewed their motion, pursuant to Rule 4:40-2(b), following the verdict. The trial court denied both motions. Since the CEPA claim is preempted by the Labor Management Reporting and Disclosure Act ("LMRDA"), 28 U.S.C.A. § 401 to § 431, and the invasion of privacy was not proved, defendants' motions should have been granted. Therefore, we reverse and remand for entry of judgment for defendants.

I. DZWONAR'S CEPA CLAIM

A. Facts

Local 54 is a labor organization subject to LMRDA. It represents approximately 15,000 employees in the hotel and restaurant industries in Atlantic City and elsewhere in southern New Jersey. Robert McDevitt was elected its president in 1996. The union is governed by an Executive Board in accordance with bylaws approved by the membership. General membership meetings occur quarterly while the Executive Board meets monthly or more frequently when required. Under the bylaws, virtually all Executive Board actions are subject to subsequent approval by the general membership.

Dzwonar, a member of the Union since 1983, was elected its Recording Secretary, an unpaid office, in 1996. Later that year, she was appointed by the union, as an at-will employee, to the full-time, paid position of Arbitration Officer, which entails representation of the union at arbitration proceedings. Dzwonar and McDevitt had numerous, intense disagreements about union business. On September 19, 1997, McDevitt, with the approval of the Executive Board, discharged her from the paid position because, according to him, she had behaved inappropriately at an arbitration hearing and was engaged in numerous disputes with other union members.

In support of her CEPA claim, Dzwonar identified a few actions taken by McDevitt, the Executive Board, or both, which she viewed as precipitating violations of LMRDA. Those actions concerned hiring of a business agent, authorization of overtime pay to the controller, issuance of credit cards to certain union officers, payment of rent for a newly hired organizer, and arrears in dues owed the international. She did not contend that any of the actions were violations of the law in themselves. Instead, she asserted that the Executive Board violated the law by failing to inform and obtain approval from the general membership on those actions. Although she also asserted that the members were being denied the right to participate freely in the general meetings, there was no evidence to support that claim.

The true thrust of Dzwonar's case, as is evident from her brief, was the refusal of the Executive Board to read or distribute the minutes of its meetings at the meetings of the general membership. She put it this way:

Dzwonar was familiar with Local 54's By- laws and the LMRDA prior to attending the George Meaney Center for Labor Studies in May of 1997. At Meaney she learned that many union locals were reading their Executive Board minutes at general membership meetings in order that the members could deliberate and vote upon the actions being taken by the Board. Upon her return to Atlantic City, Dzwonar pursued this issue further, demanding that the general membership be informed of, and approve, all Executive Board actions.

Dzwonar testified that she repeatedly advised McDevitt that she believed the By-laws and the LMRDA were being violated by his refusal to share information with the general membership concerning such matters as hirings, salaries, credit cards, etc. Reading the Executive Board minutes to the general membership was the means by which Dzwonar believed the members could be best informed of the Executive Board actions and could be given the opportunity to deliberate and vote upon those actions. When she received no response from McDevitt to her repeated complaints and objections, Dzwonar prepared and distributed a memo on July 14, 1997 regarding the minutes. Dzwonar testified at trial that her memo was provided to all the members of the Executive Board and they still refused to permit the Minutes of the Executive Board to be made available to the general membership. [Emphasis added.]

The July 14 memorandum, which makes no mention of LMRDA, reads as follows:

There is some feedback from the rank and file that some members are suggesting that we are violating the By-Laws because we do not read the minutes of the E[xecutive] Board meetings into the record at the G.M. meeting. We should at least offer them even if we ask for a motion to enter them as read. I really think we should address this A.S.A.P. [Emphasis added.]

The bylaws, however, contain no provision requiring that Executive Board minutes be read at the general membership meetings. Indeed, they are to the contrary. Article III(b) provides that "[a]ll meetings shall be conducted in accordance with Robert's Rules of Order." The following paragraph from that book was read to the jury:

A record of the Board proceedings should be kept by the secretary . . . . These minutes are accessible only to the members of the Board unless the Board grants permission to a member of the society to inspect them or unless the society, by a two-thirds vote or vote of a majority of the total membership, or a majority vote if previous notice is given, orders the Board's minutes to be produced and read to the society's assembly.

Moreover, the evidence was uncontradicted that members of Local 54 could make an appointment to review Executive Board minutes and that some did from time to time.

B. Discussion

The only laws that Dzwonar says she reasonably believed had been violated by the failure to read Executive Board minutes at general membership meetings are sections 411(a)(1) and *fn2 of ...


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