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Weinbender v. Local 2

September 23, 2008

JOSEPH WEINBENDER, PLAINTIFF,
v.
LOCAL 2, INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND ALLIED CRAFTS, DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

Magistrate Judge Martin C. Ashman

MEMORANDUM OPINION AND ORDER

Plaintiff Joseph Weinbender ("Weinbender") has filed suit against defendant Local 2, International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts ("Local 2") alleging violation of his union membership rights under various sections of the Labor-Management Reporting and Disclosure Act (the "LMRDA"), 29 U.S.C. § 401, et seq. Presently before the court is Local 2's motion for summary judgment. For the reasons set forth below, Local 2's motion is granted.

I. BACKGROUND

Local 2 represents stagehands and other employees in the performing arts in the Chicago area. Local 2 operates a referral service pursuant to collective bargaining agreements ("CBAs") with various local employers, referring interested participants to employers who are signatories to the CBAs and who have contacted Local 2 seeking workers. Participants in the referral service need not be members of Local 2. Individuals who wish to join Local 2 typically work for several years through the referral program prior to submitting a membership application.

The CBAs in place between Local 2 and the various employers specify that the employers will provide contributions on behalf of referred employees performing work covered by the agreements. These payments are made to one or more multi-employer benefit plans, including the Stagehands Union Local Two Health & Welfare Fund, the Stagehands Union Local Two Retirement Fund, and the Stagehands Union Local Two Annuity Fund (the "Funds"). The CBAs mandate that employers make contributions to the Funds for all referred employees, regardless of whether or not they are members of Local 2. Moreover, individuals who receive referrals to employers who are signatories to the CBAs are assessed 4% of their gross wages by Local 2: this assessment is claimed as "union dues" for members of Local 2 and a "working assessment" for non-members (Local 2 members also pay quarterly union dues). The purpose of the 4% assessment in either case is to cover the expenses incurred in running the referral program. Separate records are kept of the employers' contributions to the Funds and the 4% assessments of the individual employees.

The Constitution and By-Laws of Local 2 (the "constitution") prescribes the method by which an individual becomes a member of Local 2. Article 3, Section 3, specifies that approval of a candidate's submitted application by the Executive Board is essential before any further action may be taken. Def.'s Mot. Summ. J. Ex. 2, Art. 3, §3. The Executive Board may require successful completion of an examination demonstrating the candidate's competency and qualifications prior to giving its approval. Id. Once approval of the Executive Board has been obtained, the candidate's name is proposed for admission at a regular meeting of the local; the affirmative vote of a majority of the members present is required to admit an applicant to membership. Id. at Art. 3 § 4. Newly-admitted members are required to pay an initiation fee of no more than $1200; $150 of which is to be paid upon registration, with the balance paid thereafter in monthly installments of $75. Id. at Art. 3 § 8.

Alternatively, individuals who are members of other locals of the International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada (the "International") (of which Local 2 is a charter member) may apply to transfer into Local 2. Members of other locals wishing to so transfer must present an application to Local 2 as a new member together with a transfer card from the local from which the applicant seeks to transfer. Id. Art. 8 § 1. Although it is not directly evident from the constitution, it is undisputed by the parties that the ensuing admission procedure is substantially identical to that for new members. Pl.'s Resp. to Def.'s LR 56.1 Stat. of Fact ¶ 15.

Weinbender was a member of Local 110, a sister local under the International, from 1998 through 2005. Weinbender worked periodically for various employers through Local 2's referral plan from 1998 through at least February 2003. On August 20, 2003 Weinbender filed an unfair labor practice complaint with the National Labor Relations Board (the "NLRB"), alleging that Local 2 had arbitrarily ceased to refer him for work under the referral program in violation of the National Labor Relations Act (the "NLRA"), 29 U.S.C. § 151, et seq. In June, 2004, a settlement was reached on Weinbender's complaint. Shortly thereafter, on July 16, 2004, Weinbender filed a second complaint with the NLRB, again alleging discriminatory practices by Local 2, which, Weinbender alleged, referred him less frequently than other workers. That complaint was dismissed by the NLRB on September 16, 2004; a subsequent appeal was likewise denied. Relations between Weinbender and Local 2 subsequently deteriorated sharply and acrimoniously and, on March 31, 2005, Local 2's counsel wrote to Weinbender informing him that it would no longer refer him for employment. In response, Weinbender filed a third complaint with the NLRB. That complaint was dismissed on July 29, 2005, with the NLRB upholding Local 2's decision to terminate him from the referral program. This decision was also appealed, but the NLRB again denied the appeal. Weinbender subsequently filed the instant suit, alleging: (1) violations by Local 2 of his LMRDA-protected rights as a member of a labor organization under 29 U.S.C. §§ 411(a)(2), 411(a)(5), 415, and 529; (2) that Local 2 had failed to give him copies of various collective bargaining agreements in violation of Section 104 of the LMRDA, 29 U.S.C. § 414; and (3) that he had been subjected to threats and violence in violation of Section 610 of the LMRDA, 29 U.S.C. § 530. Presently before the court is Local 2's motion for summary judgment upon Weinbender's suit.

II. ANALYSIS

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether there is a genuine issue of fact, the court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

As an initial matter, Weinbender has failed to respond to, or otherwise address, Local 2's motion for summary judgment with respect to his claims (2) and (3) above. It is undisputed by both parties that Weinbender never requested a copy of any CBA within the six-month limitations period applicable to Section 104 of the LMRDA and that Weinbender's claim is therefore time-barred. See Gardner v. Int'l Tel. Employees Local No. 9, 850 F.2d 518, 522-239 (9th Cir. 1988).*fn1 Likewise, Weinbender does not dispute Local 2's motion with respect to its argument that there is no private cause of action for damages under Section 610 of the LMRDA (which imposes criminal penalties for the employment of, or threat to employ, force or violence against a member of a labor organization), nor can the court find any federal precedent to support such an action. See Moore v. Local 569 of Int'l Bhd. of Elec. Workers, 653 F. Supp. 767, 775 (S.D. Cal. 1987). The court therefore grants Local 2's motion for summary judgment with respect to these two claims of Weinbender's complaint.

With respect to Weinbender's remaining claims alleging violation of his rights as a member of a labor organization under various sections of the LMRDA, Local 2 argues that Weinbender cannot successfully allege that Local 2 violated his membership rights under the LMRDA because he is not, and has never been, a member of Local 2. Local 2 argues that Weinbender cannot therefore succeed on his claims that Local 2: (1) abridged his freedom of speech in violation of 28 U.S.C. § 411(a)(2); (2) fined, suspended, expelled, or otherwise disciplined him without affording him the due process protections of 29 U.S.C. § 411(a)(5); (3) failed to inform him of his rights under the LMRDA in violation of Section 105 of the LMRDA, 29 U.S.C. § 415; and (4) wrongfully expelled him from membership for exercising his rights under the LMRDA in violation of Section 609, 29 U.S.C. § 529.

Local 2 contends that none of these protections apply to Weinbender because he never fulfilled the requirements prescribed by the constitution to become a member by either the new application or transfer of membership processes. Local 2 states, and Weinbender does not dispute, that no application of Weinbender's was ever approved by the Local 2 Executive Board, that his name was never proposed at a general meeting of Local 2 and approved by majority affirmative vote, that his name was never carried on the membership rolls of Local 2, that he never attended a Local 2 meeting, that he was never assessed or paid the initiation fee or quarterly dues specified in the constitution, and that he never received a Local 2 union card or submitted ...


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