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Cotter v. Owens

January 15, 1985


Appeal from order of the United States District Court for the Southern District of New York granting summary judgment to defendants and dismissing plaintiff's claims under Section 102 of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq.

Feinberg, Chief Judge, Timbers and Meskill, Circuit Judges.

Author: Feinberg

FEINBERG, Chief Judge

Michael Cotter appeals from a judgment for defendants in the United States District Court for the Southern District of New York on his complaint against Local 1-2, Utility Workers Union of America (the Local), and Francis R. Owens, the prior Business Manager of the Local and present Executive Vice President of the national union. Cotter brought suit under Section 102 of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 401 et seq., alleging that defendants had violated his rights under Sections 101(a)(2) and (a)(4), 29 U.S.C. § 411(a)(2) and (a)(4), when they removed him from the Locals' Nuclear Safety Committee. Cotter sought injunctive relief including reinstatement, damages and attorney's fees.

Judge Robert W. Sweet, in an opinion reported at 589 F. Supp. 324 (S.D.N.Y. 1984) granted summary judgment for defendants. He found no evidence to support plaintiff's Section 101(a)(4) claim, and held that the Supreme Court's ruling in Finnegan v. Leu, 456 U.S. 431, 72 L. Ed. 2d 239, 102 S. Ct. 1867 (1982), barred relief on the claim under Section 101(a)(2). For reasons stated below, we affirm in part and remand in part.


Cotter is a mechanic in the Power Generation Maintenance division of Consolidated Edison (Con Edison) and is assigned, on a rotating basis, to the Indian Point Nuclear Power Station (Indian Point). Employed by Con Edison since 1959, Cotter has been an active rank and file member of the Local and has served as a shop steward for most of the years between 1961 and the present. In the spring of 1978, Business Manager James Joy created a Nuclear Safety Committee (sometimes referred to hereafter as "the Committee"), and appointed Cotter and several other shop stewards to the Committee. The purposes of the Committee were to act as a "watchdog" in areas of potential nuclear safety abuse, to disseminate safety information to the membership and to suggest improvements in safety training and practices. The Committe was not a formal part of the union structure and could not initiate or handle grievances. It was not governed by the Local's by-laws and had no independent rules. Business Manager Joy apparently established it on his own, without Executive Board approval. One of the appointed steward members initially chaired the Committee, but he had no input into appointment of its members, and neither convened meetings nor notified others when they were to be held. These functions apparently were performed by Joy, who attended most of the Committee's meetings along with several other union leaders.

Cotter was an active Committee member until January 1981, when Con Edison fired him, alleging that he had threatened a supervisor. In November 1981, the United States Department of Labor found that Cotter had been fired because of his complaints about nuclear safety violations at Indian Point, and ordered him reinstated under the "whistleblower" provision of the Energy Reorganization Act, 42 U.S.C. § 5851. This court affirmed the Secretary's order, Consolidated Edison Co. of New York v. Donovan, 673 F.2d 61 (2d Cir. 1982). In January 1982, Cotter instituted a wrongful discharge action against Con Edison in New York Supreme Court, and a default judgment was entered.

Cotter returned to work in March 1982.At about the same time, he helped found a dissident group within the Local, called the Right to Fight Back Committee (Fight Back). Fight Back publishes a newletter, whose first two issues contained articles criticizing the union leadership for paying themselves high salaries and failing to convene the Nuclear Safety Committee on a regular basis or to achieve improved safety and exposure-level rules. In September 1982, then Business Manager Owens informed Cotter that he was no longer on the Committee.

In February 1983, after exhausting internal union remedies, Cotter filed this suit under Section 102, 29 U.S.C. § 412, alleging he was removed from the Committee in retaliation for both his dissident activities and his lawsuit against Con Edison, in violation of Sections 101(a)(2) and (a)(4) of the LMRDA. These sections are in Title I of the statute, which is entitled "Bill of Rights of Members of Labor Organizations." Section 101(a)(2) protects a member's rights to freedom of speech and assembly.*fn1 Section 101(a)(4) bars a labor organization from limiting the right of any member to institute legal actions in courts or before administrative agencies.*fn2

Defendants moved for summary judgment. In ruling in their favor, Judge Sweet found no evidence that Cotter's removal from the Committee was related to his lawasuit against Con Edison. Since Cotter apparently does not contest this portion of the decision, we do not comment upon it. The judge also determined that Cotter was in a "policymaking" position, and his removal was therefore excluded from Title I protection under the Supreme Court's holding in Finnegan, supra,, 456 U.S. 431, even if the removal was in retaliation for his dissident activities. The district court further held that Cotter would be barred from reinstatement to the Committee even if his removal was part of an "overall plan to suppress dissent within the union." This appeal followed.


This litigation is but one chapter in a long-standing, bitter fight between rival factions in the Local. The appeal represents, in microcosm, the difficult issues raised when one side or another comes to court as part of a struggle for political power within a union. Congressional desire both to protect the individual rights of union members and to insure democratic procedures in the governance of unions, statutorily recognized in Titles I and IV of the LMRDA, must be balanced against the legitimate concern of Congress that courts should not become unnecessarily involved in internal union affairs. Dolan v. Transport Workers of America, 746 F.2d 733, 739-740 (11th Cir. 1984); Newman v. Local 1101, CWA, 570 F.2d 439, 446 (2d Cir. 1978) (Newman I).

Such issues were posed in Finnegan v. Leu, supra. In that case, the Supreme Court rejected claims under Section 609, 29 U.S.C. § 529, and Section 102, 29 U.S.C. § 412, of the LMRDA brought by appointed business agents who had been dismissed from their jobs by a newly elected union president because they had opposed his election. Section 609 bars "discipline" of a union member for exercising rights guaranteed by the Act. Section 102 provides independent authorization for challenging a Title I violation. Seeking to resolve a question that had long plagued and divided the circuits, see Finnegan, supra, 456 U.S. at 433 n. 1, the Court held that "removal from appointive union employment is not within the scope of those union sanctions explicitly prohibited by § 609." 456 U.S. at 439. The LMRDA protects union members as members, not in their roles as union officers or employees, even if those who wear both hats are ...

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