D. BROCK HORNBY, District Judge.
On September 6 and 7, 2016, I conducted a bench trial. These are my findings of fact and conclusions of law.
1. The American Postal Workers Union (APWU) Constitution and Bylaws provide that Union members who retire "may maintain full membership with all rights of such membership by continuing to pay full per capita taxes to the APWU plus whatever local dues may be required by their local union." Pl. Ex. 42, art. 3, § 4(b).
2. For APWU members on the United States Postal Service payroll, all Union dues are subject to automatic payroll deduction and transmitted directly to the Union. No such procedure is available for retirees who are no longer on the Postal Service payroll.
3. The APWU's national Secretary-Treasurer is directed to "supervise the recording of the membership of each local union."
4. The APWU Constitution provides that "[r]etirees whose full dues/per capita payments have lapsed due to extenuating circumstances may appeal for reinstatement to the national Secretary-Treasurer [with supporting documents]." The Retirees Department Director then makes a recommendation to the national Secretary-Treasurer, who presents it to the National Executive Board for a final determination.
5. For local elections, each local union establishes its own election committee, and "[t]he election committee shall be responsible for the conduct of local elections and shall decide all controversies arising out of the election processes."
6. APWU's Portland Maine Area Local No. 458 (Local 458) has its own Constitution. It provides—almost identically to the national APWU Constitution—that "[r]etired members may retain full membership with all rights of such membership by continuing to pay full per-capita tax to the APWU plus whatever Local dues may be required by this Local." Pl. Ex. 41, art. III, § 1(C). It also provides that "[r]etired members may retain partial membership by paying three (3) dollars per year per-capita tax to the National Union. Such retirees shall have neither voice nor vote."
7. On the amount of dues, Local 458's Constitution provides:
8. Local 458's Constitution provides that enumerated officers "shall be reimbursed the payment of dues."
9. The plaintiff John J. Riley retired from the Postal Service on January 31, 2013. Until then he had been a member in good standing of both Local 458 and the national APWU for many years and had served in several leadership roles for Local 458, including that of President.
10. Earlier that month Riley emailed both the Secretary and the Treasurer of Local 458 stating that he intended to remain an active member. In March he submitted paperwork to the APWU national office electing full retiree membership. He also emailed Local 458's President, the defendant Timothy Doughty, that he intended to keep full retiree membership.
11. After his retirement Riley ultimately arranged to pay his national dues directly to the APWU national offices. He received and paid quarterly invoices from the APWU for payment of national dues.
12. There was confusion or dispute within Local 458 over what local dues retirees must pay to remain active members. Interpreting the language "whatever local dues may be required by their local union," the defendant Doughty believed that retirees must pay the same local dues as Local 458 required of active members. On the other hand, Local 458's Treasurer Gilchrest believed and informed Riley in 2013 that Riley owed no local dues because Local 458 had never required retirees to pay local dues. Pl. Ex. 5. Gilchrest based his 2013 determination upon research into the available Local 458 records. But before Riley's retirement, there had been only one other retiree who maintained full membership, Wayne Poland.
13. Riley told Doughty on March 13, 2013 that he would provide a $175 check for unspecified dues. Riley did not in fact provide that check.
14. In December 2013, Riley began filing election challenges regarding the upcoming Local 458 election. At least some of these, including the one that would later become the subject of a Department of Labor lawsuit, were against the campaign of the defendant Doughty for President. Riley was running for Vice-President, but he was running on a joint ticket where his running mate opposed Doughty.
15. In February 2014, Riley filed still more election challenges.
16. Sometime in mid-February 2014, the APWU sent Riley a "National Per Capita Dues Invoice." Pl. Ex. 9. It described dues obligations for all four quarters of 2014. For the first quarter, on the line with the date "03/31/2014," it listed a "Total Due Now" of $24.18, and stated at the bottom of the Invoice "You MUST pay the `Total Due Now' amount to remain a member in good standing."
17. At 5:28 a.m. on March 1, 2014, someone from Local 458 checked online the APWU's record of active cash paying members, which showed that Riley was paid only through February 28, 2014. Pl. Ex. 8. Doughty testified that he saw the record that same day, but the evidence does not establish who made the early morning inquiry.
18. On March 12, the day before the election ballots were to be counted, Doughty—as a result of what he had learned from the national office—notified Local 458's election committee that Riley was not a member in good standing because he had failed to pay dues. The election committee chair, Sally Welch, phoned Riley to inform him that he was allegedly delinquent on his national dues. Riley immediately called the national Secretary-Treasurer, Elizabeth Powell. She allowed Riley to use a credit card that very day to come current on his national dues and pay future national dues through June 30, 2014. Thereafter on that same day, March 12, the national Secretary-Treasurer emailed President Doughty, who in turn forwarded her email to Local 458's election committee chair, stating that Riley was fully paid on his national dues through June 2014. Pl. Ex. 10. Local 458's election committee then determined that Riley was a member in good standing for purposes of the election. There was no reference to Local 458 dues during these March 12 events and communications.
19. When the ballots were counted on March 13, Doughty was elected President and Riley lost his Vice-Presidential contest.
20. Riley presided at the April 5-6, 2014 state convention as State President, with his term expiring at the end of the meeting. At that convention, Poland was elected State Treasurer for the year ahead. The offices of State President and State Treasurer do not qualify for dues reimbursement under Local 458's Constitution, see ¶ 8 above.
21. The national APWU rejected Riley's election challenges, but the Department of Labor decided to pursue one of them. On April 30, Doughty asked Local 458's Secretary to communicate with the Department of Labor's assigned investigator about that election challenge. Pl. Ex. 21.
22. Thereafter, things began to heat up.
23. On May 7, 2014, Doughty wrote to APWU national Secretary-Treasurer Powell, challenging Riley's good-standing status and insisting that Riley's national membership had lapsed as of March 1, 2014. Def. Ex. 11. Doughty believed that if Riley was not a member in good standing, he could not pursue his election challenges. Def. Ex. 14. The national Secretary-Treasurer did not respond to Doughty.
24. On May 9, Doughty reported to the members ("Membership Update") that Riley and his running-mate "have filed a total of 6 challenges to the last local election. Their challenges have all been rejected by the Election Committee. I have not been provided any details or a copy of their challenges, but I expect that both have appealed to the National APWU and will continue to appeal to the Department Of Labor as well. . . . The local elections have cost the local approximately $5,000.00 so far." Pl. Ex. 22.
25. There was testimony about a May 9 Union meeting,
26. On May 11, 2014, Doughty engaged in an email interchange with the APWU's Northeast Regional Coordinator that showed that Doughty was much more exercised. He stated:
Def. Ex. 14 (emphasis added). Then later in the same email string he stated:
27. Two days later, on May 13, 2014, Doughty was even more exercised. He emailed the National's Secretary-Treasurer:
Def. Ex. 40 (emphasis added).
28. On that same date, May 13, 2014, Doughty mailed Riley a letter stating:
Pl. Ex. 1. There was no reference to the treatment of Poland or to Riley's uncashed $350 check
29. On May 14, the next day, Doughty emailed Poland:
Pl. Ex. 33. Doughty did not tell Poland that he was no longer a member in good standing. Unlike his May treatment of Riley, not until June 20 did Doughty declare Poland's membership to have lapsed, and then he copied no one but Treasurer Gilchrest. Pl. Ex. 34.
30. Despite numerous attempts by Riley, and later Riley's lawyer with a newly tendered check for local dues, Doughty refused to rescind the determination that Riley was no longer a member in good standing.
31. Doughty's term as President expired in late 2015, but the Union has never rescinded the letter declaring Riley to be no longer a member in good standing.
32. I find that Doughty did not have the authority to determine Riley's dues paying status for the national APWU. Doughty also did not have the authority to overrule the APWU's national Secretary-Treasurer's decision on March 12 to allow Riley to bring current that day his arguably minimally late payment. The defendants have pointed to no such authority for Local 458's President in the Constitutions; instead the control of the membership rolls lies with the national Secretary-Treasurer, Pl. Ex. 42, art. 7, § 1(c),
33. With respect to Local 458 dues for active retirees, their nonpayment by Poland and Riley was a practice that, in Doughty's words to the Northeast Regional Coordinator, had gone on "for a long time," without being "really addressed." Doughty has an explanation for Local 458's treatment of Poland that is consistent with his view that retirees are supposed to pay Local dues, namely, that Poland would have been entitled to reimbursement for the period he was an officer and that it was pointless to engage in an exchange of checks. On that theory, Poland would have to pay dues only after April 1, 2014, when he ceased being an officer of the type whose dues were reimbursed. But that seems inconsistent with Doughty's recognition on May 11 that Poland, like Riley, had not paid Local 458 dues for a "long time." During much of this time, Poland wrote national dues checks for Local 458 to pass on to the national APWU, and then was reimbursed later. Moreover, the language of Local 458's Constitution states that certain officers' dues can be "reimbursed" or "refunded," see ¶ 8 above, not that they can be waived altogether. I find that the past practice, for good or ill, was not to require active retirees to pay Local 458 dues even though there was some confusion as to why.
34. I also find that in previous exchanges with Riley, Doughty had stated that Local 458's Constitution did not adequately address the issue of retiree payment of Local 458 dues and that "this is something that we may want to consider in the future." Pl. Exs. 3, 4. He had also told the membership that "[w]e are planning to address how the constitutional language applies and to address any conflicts. There is a bit of disagreement regarding how this was handled in the past, or at least how the rules were thought to have been historically applied." Pl. Ex. 22. But Doughty did not pursue that avenue. Instead, in May, Riley's election challenges had come to the forefront in Doughty's hostility toward him, as demonstrated clearly and graphically in Doughty's emails to the Northeast Regional Coordinator and the national Secretary-Treasurer. Doughty testified that his conduct was motivated in part by members' complaints, yet the evidence shows that Poland (serving as State Treasurer while not paying local dues) was as much or more of a concern for members. In mid-May, Doughty was treating Riley more harshly than Poland. I find that Doughty's decision in May 2014 to abandon, without notice to Riley, his "no rush" stance by declaring Riley no longer a member in good standing— without pursuing amendment of Local 458's Constitution and despite Riley's tendered check of $350—was retaliatory. It was provoked by Doughty's (and perhaps other members') unhappiness over the grief that Riley had been causing Doughty and Local 458 in making election challenges, and Doughty's hope that declaring Riley a lapsed member might bring an end to the election challenges.
35. The APWU national office named Riley an arbitration advocate in Maine for the years 2014 and 2015. Pl. Exs. 27, 28. Arbitration advocates are used by the Union if the business agents are too busy to handle arbitration cases. According to Union policy, Riley could earn a maximum of $10,000 per year, but from past experience he expected to earn $5,000-$6,000 per year. Riley could not serve as an arbitration advocate after May 13, 2014, once Doughty declared him not a member in good standing. The State President Scott Adams, however, testified that all appointments to particular cases required his approval and that during 2014 through 2016 there was no need for any arbitration advocate in Maine and none was appointed.
36. Riley's Union membership was very important to him. It was one of the activities in which he had planned to spend his retirement years, and his future has been "inhibited" by his lack of union membership.
37. Riley testified that "[t]he local union, particularly Mr. Doughty, has been promulgating slanderous accusations against me that I am not a member and basically I'm what they call a scab." Setting aside hearsay issues (he did not testify that he, Riley, heard any such accusations directly), Riley's description of the "slanderous accusations" is very vague. Riley presented no evidence of specific conversations that anyone heard and no one testified that Doughty used the word "scab" in describing Riley.
38. One of Riley's election challenges resulted in the Department of Labor suing Local 458 in this court in August of 2014. The case was settled, as a result of which a new election was held, and Riley once again lost his campaign for Vice-President.
39. In September 2014, Riley attempted to pursue Union remedies. He sent his charges by certified mail to both the Secretary and the Treasurer of Local 458. Doughty instructed them not to pick up the certified mail, Pl. Ex. 16, and Doughty himself did not pick it up. As a result, the certified mail was returned unopened to Riley. At trial, Doughty justified his conduct on the basis that by virtue of Riley's dues lapse, he was no longer a Union member and thus had no such relief available to him.
40. Riley never pursued formal reinstatement, in part because he believed that doing so would require an admission that his membership had lapsed.
A. Riley filed this lawsuit under the Labor-Management Reporting and Disclosure Act against Local 458 and its then-President Doughty, claiming violations of 29 U.S.C. §§ 411 and 529, and seeking remedies under 29 U.S.C. § 412. Federal question jurisdiction exists under 28 U.S.C. § 1331.
B. The discretionary reinstatement route that Doughty offered Riley was not an adequate remedy. It would have required Riley to admit that his Union membership had lapsed, perhaps forfeiting his election challenges.
D. Riley claims in Count I of his Complaint that Local 458 and Doughty changed the retiree dues structure in violation of 29 U.S.C. § 411(a)(3)(A). That subsection provides that dues "shall not be increased" except upon proper notice and "by majority vote by secret ballot of the members in good standing." 29 U.S.C. § 411(a)(3). Riley argues that Doughty's decision to require full local dues payments by retirees changed the existing retiree dues structure, Compl. ¶ 23, inasmuch as no previous retiree member had to pay Local 458 dues at all.
The answer to this question depends on the meaning of the national and local Constitutions, as well as interpretation of the past practice of Local 458. I am troubled about deciding the meaning of the APWU Constitution. The national APWU is not a party to this lawsuit, and I therefore am reluctant to determine what its constitutional language means in the absence of argument by the APWU and whatever evidence or documents it might have about ambiguous terms or past interpretations of its Constitution. I base my decision upon Local 458's Constitution and Local 458's past practice.
On its own, the language of Local 458's Constitution is certainly ambiguous. One might reasonably read "full per-capita tax to the APWU plus whatever Local dues may be required by this Local" as giving Local 458 the authority to establish a different structure of local dues for retirees. That is what Don Parks, a clerk craft director and member of the executive board, believed at one time according to his testimony. Alternatively, because the language about "whatever Local dues may be required" appears in a provision that grants retirees full Union membership with all rights of such membership, one could reasonably conclude that the provision refers to whatever local dues Local 458 requires of active members, in contrast to the $3 option for retirees who are not preserving their voice and vote and only remain on the membership rolls for social and fraternal purposes.
The Department of Labor's policy under the LMRDA is that "[t]he interpretation consistently placed on a union's constitution by the responsible union official or governing body will be accepted unless the interpretation is clearly unreasonable." 29 C.F.R. § 452.3 (2016). The First Circuit has said that "judges should refrain from second-guessing labor organizations in respect to plausible interpretations of union constitutions."
There is no doubt that before this controversy, Local 458 had not required its only active retiree Poland to pay local dues as such, but different people have different explanations for why. One past President, Riley, said that Local 458 had consistently waived Poland's local dues after his retirement. It was also Treasurer Gilchrest's view that Local 458 had never required a retiree to pay Local dues. President Doughty, on the other hand, took the position that retired members had to pay full Local 458 dues, while admitting that the Constitution might not address it satisfactorily. As for "interpretation consistently placed on" the Constitution (the words of 29 C.F.R. § 452.3), Executive Board member Donald Parks testified that his original understanding was that Local 458 could require active retirees to pay less than full dues, but that his opinion had changed. Even Doughty admitted that "past presidents have applied [the Constitution's provision on Local dues] differently," that he "never really addressed" the issue, and that for Local 458's two retired cash pay members, "[n]either have paid their local share of dues for a long time." Def. Ex. 14.
In ¶ 33 above, I found for the reasons stated there that the past practice was not to require retirees who remained active members to pay Local 458 dues. I can well understand that Local 458 might want to change that policy, but section 411(a)(3) requires that such a change occur only by secret ballot of the members after proper notice. In the absence of such a vote, I conclude that the past treatment of active retiree members is that they were not required to pay Local 458 dues. Thus, with respect to Count I, requiring Riley as an active retiree to pay full Local 458 dues was a dues increase contrary to the procedures spelled out in 29 U.S.C. § 411(a)(3)(A).
29 U.S.C. § 529. Department of Labor regulations state that that this provision applies to "rights relating to the election of officers under title IV." 29 C.F.R. § 452.10 (2016). Riley asserts that his treatment was designed "to suppress dissent" and deprive him of his rights under the bill of rights of members of labor organizations, 29 U.S.C. § 411, "including the right to have equal rights and privileges within the Local and his rights of freedom of speech and assembly." Compl. ¶ 26.
29 U.S.C. § 411(a)(2);
I conclude that Local 458 and Doughty illegally retaliated against Riley for expressing his views, arguments, and opinions. Specifically, Doughty considered Riley's series of election challenges, one of which the Secretary of Labor adopted and pressed in federal court, to be "bullshit" that made Riley a "pain in the ass" and that were "destroying a great local." Doughty was also upset with Riley's election flyers. By declaring Riley a lapsed member, Doughty hoped to knock the legs out from under Riley's election challenges. There is no other reasonable explanation for Doughty's sudden decision in mid-May to declare that Riley's national membership had lapsed on March 1, when in fact the national APWU and its officers clearly treated Riley as remaining fully paid in his national dues (over Doughty's protests). There is also no other reasonable explanation for Doughty's mid-May decision to depart, without notice, from his earlier stated views—namely that Local 458's Constitution did not adequately address the issue of retiree local dues, that "this is something we may want to consider in the future," and that there was no urgency to resolve the issue. I conclude that Riley's election challenges and election flyers—protected speech—are the reason that Doughty on May 13 declared Riley's Union membership to have lapsed for nonpayment of both national and local dues.
F. There is no evidence that Riley suffered any economic damages resulting from his improper removal from Union membership. He believed, on the basis of prior experience, that by virtue of his appointment as an arbitration advocate in Maine he might earn $5,000-$6,000 per year. According to then-State President Scott Adams's uncontradicted testimony, however, all appointments of arbitration advocates required his approval and, during 2014-2016, there was no arbitration proceeding in Maine to which Riley could have been appointed. Thus, Riley did not lose any income.
G. Riley is not entitled to damages for emotional distress. In the absence of First Circuit precedent, I follow the Second and Ninth Circuits in holding that damages for emotional distress require a physical manifestation of injury, and Riley offered no such evidence.
L. Injunctive or declaratory relief cannot be awarded against Doughty because he is no longer President of Local 458. The question remains whether he can be held liable for damages (in this case the nominal damages of $50 and punitive damages of $5,000 that I have awarded). The foundational case is
M. Riley benefited the Union by vindicating union members' free speech rights under the LMRDA. He is therefore entitled to reasonable attorney fees.
Accordingly the Clerk shall enter judgment in favor of the plaintiff and against the defendants jointly and severally in the amount of Five Thousand Fifty Dollars ($5,050). The judgment shall also include a declaration that the May 13, 2014, letter determining Riley's membership to have lapsed for nonpayment of dues is of no force and effect, and that his membership in Local 458 has not lapsed. It shall also enjoin Local 458 to rescind its declaration that Riley is a lapsed member and to restore him to membership in good standing. The judgment shall also award reasonable attorney fees upon proper submission under Local Rule 54.2.
29 U.S.C. § 411(a)(5) (emphasis added). But that exclusion of dues nonpayment discipline from the statute's notice and due process requirements does not displace section 411(a)(2)'s
