Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2002

Conery v. Niccollai
Precedential or Non-Precedential:

Docket No. 01-2870




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Recommended Citation
"Conery v. Niccollai" (2002). 2002 Decisions. Paper 248.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/248


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                        NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 01-2870



       WILLIAM J. CONERY; FRANK A. FUSCO; KENNETH BURDGE

                                v.

JOHN NICCOLLAI, JR., individually and in his official capacity as President
  of Local 464A, Food and Commercial Workers Union, AFL-CIO;
RAMON RANDO, individually and in his official capacity as Secretary-Treasurer
of Local 464A; GRIFF MCELROY, individually and in his capacity as Recorder
of Local 464A; GEORGE PLESA, individually and in his official capacity as
Chairman of the Executive Board of Local 464A; FRANK HANLEY, individually
and in his official capacity as Contract Administrator; FRANK DICHRISTINA;
DONALD LIGON; WILLIAM WRIKER, individually and in their official capacities
as Business Agents of Local 464A; UNITED FOOD COMMERCIAL WORKERS
 UNION, AFL-CIO; SHOPRITE SUPERMARKETS, INC.;WALTER BIERNACKI,
individually and in his official capacity as Vice President of Local 464A; WAYNE
WILLIAMS, individually and in his capacity as Director - Pension & Prescription
Benefits of Local 464A; JOHN T. NICCOLAI, SR., individually and in his capacity
as Trustee of the Local 464A Pension Fund; LOCAL 464A, UNITED FOOD AND
  COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO; LOCAL 464A
    PENSION FUND ADMINISTRATOR AND BOARD OF TRUSTEES; MARTIN
QUINN, in their capacity as administrators and trustees of the Local 464A Pension Fund;
GILBERT C. VUOLO, in their capacity as administrators and trustees of the
Local 464A Pension Fund; DEWEY CANNELLA, in their capacity as administrators
and trustees of the Local 464A Pension Fund; ISADORE ZALKIN, in their capacity
 as administrators and trustees of the Local 464A Pension Fund

                                v.

 JOHN NICCOLLAI, JR.; RAMON RANDO; GRIFF MCELROY; GEORGE PLESA;
 FRANK HANLEY; FRANK DICHRISTINA; DONALD LIGON; WILLIAM WRIKER;
WAYNE WILLIAMS; JOHN T. NICCOLAI, SR.; MARTIN QUINN; GILBERT C.
    VUOLO; DEWEY CANNELLA; ISADORE ZALKIN; WALTER BIERNACKI,

                                           Third Party Plaintiffs

                                v.

HAROLD KRIEGER, The Estate of Harold Krieger; STEPHANIE KRIEGER;
 LOWELL HARDWOOD, as Executors of the Estate of Harold Krieger,

                                           Third Party Defendants

                          (D.C. No. 92-cv-00840)

                 FRANK A. FUSCO; KENNETH BURDGE

                                v.

JOHN T. NICCOLAI, JR., individually and in his capacity as President of local 464A,
United Food and Commercial Workers International Union, and as Trustee of the Local
464A Pension Fund; RAMON RANDO, individually and in his capacity as
Secretary-Treasurer of Local 464A and as Trustee of the Local 464A Pension Fund;
GRIFF MCELROY, individaully and in his capacity as Recorder of Local 464A;
FRANK HANLEY, individually and in his capacity as Contract Administrator of
Local 464A; WAYNE WILLIAMS, individually and in his capacity as Director - Pension
& Prescription Benefits of Local 464A; JOHN T. NICCOLAI, SR., individually
and in his capacity as Trustee of the Local 464A Pension Fund; LOCAL 464A,
    UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION,
  AFL-CIO; LOCAL 464A PENSION FUND ADMINISTRATOR AND BOARD OF
TRUSTEES; WALTER BIERNACKI, individually and in his capacity as Vice President
of Local 464A and as Trustee of the Local 464A Pension Fund; MARTIN QUINN,
in their capacity as administrators and trustees of the Local 464A Pension Fund;
GILBERT C. VUOLO, in their capacity as administrators and trustees of the Local 464A
Pension Fund; DEWEY CANNELLA, in their capacity as administrators and trustees
of the Local 464A Pension Fund; ISADORE ZALKIN, in their capacity as administrators
          and trustees of the Local 464A Pension Fund

                           (D.C. No. 92-cv-01458)

                                        William J. Conery,
                                                  Appellant




          Appeal from the United States District Court
             for the District of New Jersey, Newark
            (D.C. Civ. Nos. 92-CV-840 & 92-CV-1458)



Before: SCIRICA and COWEN, Circuit Judges,
RESTANI, Judge, United States Court of International Trade

                     (Filed: April 4, 2002)




                            OPINION



RESTANI, Judge:
     On March 31, 1998, the District Court granted summary judgment for defendants
based on the Report and Recommendation ("Report"), dated January 14, 1998, of
Magistrate Judge G. Donald Haneke. Previously, on September 26, 1994, the District
Court had granted defendants’ partial summary judgment as to Conery’s malicious
prosecution claims.

                        STATEMENT OF FACTS
     This appeal arises out of claims brought by William J. Conery, Kenneth Burdge
and Frank Fusco against various officers of Local 464A, United Food and Commercial
Workers Union ("Local 464A") for allegedly engaging in a continuous and systematic
campaign of harassment to prohibit Conery and other union members from exercising
their rights under the Labor Management Reporting and Disclosure Act ("LMRDA") and
National Labor Relations Act ("NLRA") in order to suppress dissent within Local 464A.
     In 1982, defendant John T. Niccollai, Jr. was appointed to his position as President
of defendant Local 464A as a result of the death of the former president. Defendant
Niccollai was re-elected President in 1983, 1986, 1989, 1992 and 1995. Conery
maintains that various officers of Local 464A organized and executed a campaign of
harassment against him in response to Conery’s dissident activities in Local 464A,
including Conery’s decision to run for president in Local 464A’s elections in 1989 and
1992. According to Conery, this harassment included (a) the filing of a civil RICO
lawsuit in retaliation for Conery’s dissident union activities; (b) the filing of an assault
charge in Municipal Court to "convince" him to stop participating in union affairs; and
(c) the verbal and physical harassment of Conery dating back to April of 1987 in order to
suppress dissent within the union.
                           DISCUSSION
     Conery asserts violations of his rights under Sections 101(a)(1)(2) and (4) of the
LMRDA, 29 U.S.C. 411(a)(1)(2) and (4). Section 101(a)(1) was
intended to guarantee union members the right to participate in Union campaigns and
elections and to attend membership meetings. That section provides:
     Every member of a labor organization shall have equal rights and privileges
     within such organization to nominate candidates, to vote in elections or
     referendums or a labor organization, to attend membership meetings, and to
     participate in the deliberations and voting upon the business of such meetings,
     subject to reasonable rules and regulations in such organization’s constitution
     and bylaws.

LMRDA 101(a)(1), 29 U.S.C. 411(a)(1). The United States Supreme Court has held
that the provisions of 101(a)(1) are narrow in scope. Calhoon v. Harvey, 

,
138-39 (1964). The Calhoon Court explained that 101(a)(1) is:
     no more than a command that members and classes of members shall not be
     discriminated against in their right to nominate and vote. And Congress carefully
     prescribed that even this right against discrimination is "subject to reasonable rules
     and regulations by the union."

of action by a union member cannot be sustained under 101(a)(1) without
some claim of discrimination and some demonstration that the plaintiff has been denied
the right to nominate or vote. 

(a) (2) was intended to guarantee union members the right to express
their views and opinions regarding union elections and officers. That section provides in
relevant part:
     Every member of any labor organization shall have the rights . . . to express any
     views, arguments or opinions . . . Provided, that nothing herein shall be construed
     to impair the right of a labor organization to adopt and enforce reasonable rules as
     to the responsibility of every member toward the organization as an institution and
     to his refraining from conduct that would interfere with its performance of its legal
     or contractual obligations.

LMRDA 101(a)(2), 29 U.S.C. 411(a)(2). Nevertheless, the Supreme Court has held
that a violation of free speech rights by itself is insufficient to violate 101(a)(2). Sheet
Metal Workers’ Int’l Assoc. v. Lynn, 

, 353 (1989). The infringement on free
speech must be viewed with reference to the basic objective the LMRDA. 

is "to ensure that unions [are] democratically governed, and responsive to the
will of the union membership as expressed in open periodic elections." Finnegan v. Leu,

, 441 (1982).
     As set forth in detail in the Report, Conery participated fully in union elections and
spoke his mind. He ran for office and supported other candidates.    None of the actions of
the Local 464A officials interfered with Conery’s rights to vote for and nominate
candidates, nor did he present evidence establishing interference with the democratic
governing of the union. The Report did not mischaracterize the facts or misinterpret the
law and was properly adopted by the District Court.
     29 U.S.C. 411(a)(4) forbids union officials from barring its members from
instituting legal proceedings. Apparently, Conery’s claim under 411(a)(4) relates to
attempts to forestall further complaints to the NLRB. Conery did not discuss 411(a)(4)
in his briefs. To the extend this issue is not waived, Conery did not establish material
facts at issue with regard to claim arising under 411(a)(4).
     The District Court also properly granted summary judgment as to the state law
claim for malicious prosecution for failure to raise material facts as to a special grievance
under New Jersey law. See Venuto v. Carella, Byrne, Bain, Gilfillan, Cecchi & Stewart,
P.C., 

, 392 (3rd Cir. 1993). We do not consider plaintiff’s argument, raised
for the first time on appeal, that the special grievance requirement does not apply to a
criminal complaint.
     The judgment of the District Court will be AFFIRMED.
                              ____
TO THE CLERK:
     Please file the foregoing opinion.


                         /s/ Jane A. Restani
                                   Judge

DATED:   April 4, 200