Clemens v. Local One, Service Employees International Union

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ARTHUR J. CLEMENS, Jr., )

Plaintiff,

V. No. 4:17CV2381 RLW

LOCAL ONE, SERVICE EMPLOYEES

INTERNATIONAL UNION, et al., )

Defendants.

MEMORANDUM AND ORDER

This matter is before the Court on numerous motions filed by pro se Plaintiff Arthur J.

Clemens, Jr., and Defendants Local One, Service Employees International Union (“Local One”),

Tom Balanoff, Laura Garza, and Nancy Cross (collectively referred to as “Defendants’”). The

Court has carefully read and considered every motion and related memoranda and finds that

Plaintiff has failed to state any claim upon which relief can be granted. Because Defendants’

Motion to Dismiss or in the Alternative for Summary Judgment (ECF No. 65) resolves the case

in its entirety, the other motions are denied as moot.

BACKGROUND

Plaintiff Arthur J. Clemens, Jr., is employed by employers who are contracted to clean

Busch Stadium in Saint Louis, Missouri after events at the stadium. (Defs.’ Statement of

Uncontroverted Material Facts (“SUMF”) § 2, ECF No. 67)! He is a dues-paying member of

Local One, which is a labor union representing approximately 46,000 members in the service

' Plaintiff filed a response to Defendant’s Statement of Uncontroverted Material Facts in which

he responds to each numbered paragraph. (ECF No. 86) For the purposes of addressing

Defendants’ motion as one for summary judgment, the Court only includes facts that are in fact

undisputed by the parties.

industry across six contiguous states. (/d. at J§ 1, 7) Defendants Tom Balanoff, Laura Garza,

and Nancy Cross are agents of Defendant Local One and serve as president, treasurer, and vice

president respectively. (/d. at J 6)

Plaintiff's pro se Amended Complaint (ECF No. 46) asserts the following fifteen counts

against Defendants:

I. That Local One raised monthly membership dues from $37 to $42 for the

calendar year 2016 without a valid vote in violation of the Labor-Management

Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411(a)(3)(A);

II. That Local One raised monthly membership dues from $42 to $47 for the

calendar year 2017 through to the present without a valid vote;

lll. | That Local One raised monthly membership dues from $39 to $41 for the

calendar years 2009-2011 without a valid vote;

IV. That the vote to increase dues for calendar years 2016 and 2017 was conducted on

a date when Plaintiff and other union members employed at Busch Stadium were

unable to attend and no accommodation was made for them to vote absentee or by

representative;

V. That other dues-paying members of Local One have suffered similar damages to

Plaintiff in 2016 and 2017, justifying class certification and appointment interim

class counsel;

VI. That several votes be declared null and void for failure to give sufficient notice of

the relevant meetings;

VII. That Local One’s policies violate its constitution and bylaws and have obstructed

his efforts to run for president of Local One;

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VUI. That Local One’s payments to its chosen law firm constitute a violation of 29

U.S.C. 481(g)’s prohibition of using dues to promote the candidacy of an

individual in any election by preventing fair elections;

IX. That Balanoff, Garza, and Cross engaged in financial malpractice as defined in

the constitution for the international union of which Local One is apart, Service

Employees International Union (“SEIU”), which requires them to pay restitution

and Local One to be placed into receivership with a court-appointed trustee;

X. That Local One’s policies violate SEIU’s constitution and bylaws as well as rights

guaranteed under the United States Constitution by requiring Plaintiff to obtain

over 800 signatures from dues-paying members in order to qualify to be on the

ballot for any Local-wide election;

XI. ‘That the increases in Plaintiff's monthly membership dues were higher than the

rate formula described in Local One’s bylaws purports to establish;

XII. That other dues-paying members of Local One have suffered similar damages to

Plaintiff as alleged in Count XI, justifying class certification and appointment of

class counsel;

XIII. That, incorporating his allegations in Count VI, other dues-paying members of

Local One have been denied their right to freedom of assembly as guaranteed by

the First Amendment to the United States Constitution;

XIV. That 29 U.S.C. § 481(c) violates his freedom of assembly under the First

Amendment to the United States Constitution and the Court should declare it

unconstitutional in light of modern technological advances; and

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XV. That 29 U.S.C. § 481(c) also violates the equal protection clause of the Fourteenth

Amendment and the Court should declare 29 U.S.C. 481(c) unconstitutional in

light of modern technological advances.

The Court has already ruled on numerous motions filed in this case by both parties. For

example, the Court denied Plaintiff's motion for default judgment after Defendants’ initial

twelve-day delay in filing their answer to the original complaint (ECF No. 22); granted

Plaintiff's Motion for Leave to File Constitutional Challenge, which the Court construed as a

Motion for Leave to File an Amended Complaint (ECF No. 45); denied Plaintiffs Motion to

Disqualify Defense Counsel (ECF No. 92); and struck a filing by Plaintiff that wrongfully

accused defense counsel of witness tampering (ECF No. 92).

Motions pending before the Court now include the following: motions to compel filed by

Plaintiff (ECF Nos. 58, 59, & 60); Defendants’ Motion to Dismiss or in the Alternative for

Summary Judgment (ECF No. 65); Plaintiff's Rule 23 Motion for Class Action Status (ECF No.

69); Plaintiff's eleven separate Motions for Summary Judgment directed at Counts IJ, II, III, IV,

V, VI, VI, VUI, [X, XI, and XII respectively (ECF Nos. 71-81); Plaintiff's Motion to Depose

Rebuttal Witness (ECF No. 85); Plaintiff's Motion for Reconsideration of Denial of Plaintiffs

Motion to Enjoin and Restrain Garza from the Use of Local One, SEIU Treasury Money to Pay

Legal Fees to Defendant’s chosen law firm and counsel (ECF No. 94); Plaintiff's Motion to File

out of Time Additional Exhibits and Pleadings (ECF No. 97); Plaintiff's Motion to Expedite

Proceedings (ECF No. 100) and Defendant’s Motion for Additional Time to Respond thereto

(ECF No. 101).

As explained fully below, the Court finds that certain claims in the Amended Complaint

should be dismissed pursuant to Rule 12(b)(6) and that Defendants are entitled to summary

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judgment on the remaining claims. Because Defendants’ Motion to Dismiss or in the Alternative

for Summary Judgment (ECF No. 65) resolves the case in its entirety, the other motions are

denied as moot and are not analyzed in this Memorandum and Order.”

MOTION TO DISMISS

I. Legal Standard

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim upon which relief can be granted if the complaint fails to plead “enough facts to

state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007). “Factual allegations must be enough to raise a right to relief above the speculative

level... Jd. at 555. Courts must liberally construe the complaint in the light most favorable

to the plaintiff and accept the factual allegations as true. See Schaaf v. Residential Funding

Corp., 517 F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as

true all factual allegations in the complaint); Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th

Cir. 2008) (explaining that courts should liberally construe the complaint in the light most

favorable to the plaintiff).

However, “[w]here the allegations show on the face of the complaint there is some

insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v. Merrill Lynch

& Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted). Courts “are not bound to accept as

The Court notes Plaintiff's fifteen separately filed Motions for Summary Judgment do not

comport with this district’s local rules. See E.D.Mo. L.R. 4.01(E) (“A memorandum in support

of a motion for summary judgment shall have attached a statement of uncontroverted material

facts, set forth in a separately numbered paragraph for each fact, indicating whether each fact is

established by the record, and, if so, the appropriate citations.”). Plaintiff's failure to comply

with Local Rule 4.01(E) by including a statement of uncontroverted material facts would warrant

dismissal of his eleven separate Motions for Summary Judgment (ECF Nos. 71-81) without

prejudice. See, e.g., Mecklenburg Farm, Inc. vy. Anheuser-Busch, Inc., No. 4:07-CV-1719 CAS,

2008 WL 2518561, at *2 (E.D. Mo. June 19, 2008).

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true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Twombly, 550 U.S. at 555). When considering a motion to dismiss, a court can

“begin by identifying pleadings that, because they are no more than conclusions, are not entitled

to the assumption of truth.” Jd. at 679. Legal conclusions must be supported by factual

allegations to survive a motion to dismiss. Jd.

I. Plaintiffs claims challenging past elections

Defendants argue Plaintiffs claims purporting to challenge the validity of past elections

of Local One officers must be dismissed because the Court lacks jurisdiction over private actions

by individual union members making such claims.

Title IV of the [LMRDA] establishes a set of substantive rules governing union

elections, . . . and it provides a comprehensive procedure for enforcing those rules

.... Any union member who alleges a violation may initiate the enforcement

procedure. He must first exhaust any internal remedies available under the

constitution and bylaws of his union. Then he may file a complaint with the

Secretary of Labor, who ‘shall investigate’ the complaint. Finally, if the

Secretary finds probable cause to believe a violation has occurred, he ‘shall. . .

bring a civil action against the labor organization’ in federal district court, to set

aside the election if it has already been held, and to direct and supervise a new

election. With respect to elections not yet conducted, the statute provides that

existing rights and remedies apart from the statute are not affected. But with

respect to an election already conducted, ‘(t)he remedy provided by this

subchapter . . . shall be exclusive.’

Trbovich v. United Mine Workers of Am., 404 U.S. 528, 531 (1972). The Supreme Court has

held that the “exclusive” remedy for alleged violations of Title IV is a lawsuit by the Secretary of

Labor and § 483 “prohibits union members from initiating a private suit to set aside an election.”

Trbovich, 404 U.S. at 531 (citing Calhoon v. Harvey, 379 U.S. 134, 140 (1964)); 29 U.S.C. §

483 (“The remedy provided by this subchapter for challenging an election already conducted

shall be exclusive.”).

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Plaintiff brings his claims related to past elections pursuant to the “Bill of Rights”

outlined in Title I of the LMRDA, 29 U.S.C. § 411. However, the precedent is clear that “the

exclusivity provision included in... Title IV plainly bars Title I relief when an individual union

member challenges the validity of an election that has already been completed.” Local No. 82,

Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Packers v.

Crowley, 467 U.S. 526, 541 (1984). Assuming arguendo that Plaintiff exhausted the internal

remedies available under SEIU’s constitution and bylaws related to challenging past elections as

he so pleads’ (Am. Compl. at 46, ECF No. 46), the Court finds that Plaintiff cannot bring a

private action because the exclusivity provision in § 483. Accordingly, Plaintiffs claims related

to the validity of past elections contained in Counts VII, VIII, X, XIV, XV are dismissed because

the Secretary of Labor is the only entity that can enforce such claims against labor unions under

the LMRDA.

IL. Plaintiff's constitutional claims against Defendants

In addition to the claims under the LMRDA, Plaintiff brings certain claims pursuant to 42

U.S.C. § 1983 for violations of his rights guaranteed by the First and Fourteenth Amendments.

42 U.S.C. § 1983 was designed to provide a “broad remedy for violations of federally protected

civil rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685 (1978). Section 1983 provides

no substantive rights; it merely provides a remedy for violations of all “rights, privileges, or

immunities secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983; see

3 In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint

to be true and construes all reasonable inferences most favorably to the complainant. U.S. ex rel.

Raynor vy. Nat’l Rural Utilities Co-op. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012); Eckert v.

Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). Consequently, for the purpose of

determining whether Plaintiffs claims related to past elections survives a Rule 12(b)(6) motion,

the Court took Plaintiff's pleading at its word that he exhausted internal union remedies. As

explained elsewhere in the Memorandum and Order, the Court finds Plaintiff's failure to exhaust

internal union remedies defeats several other claims under the summary judgment standard.

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also Albright v. Oliver, 510 U.S. 266, 271 (1994) (section 1983 “merely provides a method for

vindicating federal rights elsewhere conferred”). To state a claim under § 1983, a plaintiff must

establish: (1) the violation of a right secured by the Constitution or laws of the United States, and

(2) that the alleged deprivation of that right was committed by a person acting under color of

state law. West v. Atkins, 487 U.S. 42, 48 (1988).

Defendants argue Plaintiffs constitutional claims under § 1983 must be dismissed

because Defendants are private actors who were not acting under color of state law. “Private

actors may incur section 1983 liability only if they are willing participants in a joint action with

public servants acting under color of state law.”4 Johnson v. Outboard Marine Corp., 172 F.3d

531, 536 (8th Cir. 1999). Defendants are clearly private actors and Plaintiff has not alleged facts

necessary to hold them liable for any alleged constitution violations pursuant to § 1983.°

‘Tn Plaintiff's response to Defendants’ Motion to Dismiss or in the Alternative for Summary

Judgment, he claims that “the Labor Department, SEID Local One, and SEID International . . .

are acting under the color of Federal Law to violate his previously stated Constitution Rights.”

(ECF No. 87, at 2-3) He has not named the United States Department of Labor as a defendant in

this case. If he had named the Department of Labor as a defendant, the claim would fail because

of sovereign immunity and because any individually named defendant at the Department of

Labor would not be acting under state law. Further, he has not pleaded sufficient facts to

establish liability for Defendants as private actors to be liable in conjunction with any act by any

government entity. “[A] plaintiff seeking to hold a private party liable under § 1983 must allege,

at the very least, that there was a mutual understanding, or a meeting of the minds, between the

private party and the state actor.” Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir. 1993). The

facts alleged with respect to a conspiracy must be specific and may not be merely conclusory.

See White v. Walsh, 649 F.2d 560, 561 (8th Cir. 1981). Plaintiff has failed to do so here.

> Plaintiff makes conclusory claims in the Amended Complaint that Defendants acted “under the

color of the authority of the Local One, Service Employees International Union Constitution and

Bylaws, the Service Employees International Union Constitution and Bylaws, Department of

Labor Office of Labor Management Standards Directives, and 29 USC 481(c).” (ECF No. 46 at

5-6, 18) This allegation is insufficient to establish Defendants acted under the color of state law.

Section 1983 specifically imposes liability on “[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia”

deprives someone of “any rights, privileges, or immunities secured by the Constitution and

laws.” (Emphasis added). This language means that only state actors, rather than federal actors,

In addition to failing to identify a party that could be liable for alleged constitutional

violations, Plaintiff has further failed to plead necessary facts to support his claims. Despite

alleging Defendants violated his rights guaranteed by the equal protection clause of the

Fourteenth Amendment and freedoms of speech and assembly under the First Amendment, he

does not specify a protected class to which he is a member or established government action in

suppressing his otherwise protected speech. See Nolan v. Thompson, 521 F.3d 983, 989 (8th Cir.

2008) (“To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a

state actor intentionally discriminated against the plaintiff because of membership in a protected

class.”). Plaintiff seems to suggest that being a “qualified candidate for Local One, SEIU office”

is a protected class for purposes of equal protection analysis. (Am. Compl. at 19, ECF No. 46)

He has presented no authority for this tenuous interpretation of constitutional protection.

Consequently, Plaintiff's constitutional claims in Counts VII, X, and XIII are also dismissed for

failure to state a claim upon which relief can be granted.

IV. Plaintiffs claim challenging the constitutional validity of 29 U.S.C. § 481(c)

In Counts XIV and XV, Plaintiff challenges the constitutional validity of 29 U.S.C. §

481(c). That subsection of Title IV, § 401 of the LMRDA provides:

Every bona fide candidate shall have the right, once within 30 days prior to an

election of a labor organization in which he is a candidate, to inspect a list

containing the names and last known addresses of all members of the labor

organization who are subject to a collective bargaining agreement requiring

membership therein as a condition of employment, which list shall be maintained

and kept at the principal office of such labor organization by a designated official

thereof.

29 U.S.C. § 481(c). According to Plaintiff, § 481(c) violates his freedom of assembly under the

First Amendment by limiting his ability to access a list of all Local One members unless he

can be held liable under § 1983. The statutory authority Plaintiff seems rely for his claim that

Defendants should be liable under § 1983 are internal, private union documents and federal law.

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travels to the main office in Chicago. He argues such a burden is unreasonable as it prevents him

from being able to contact enough members in order to acquire the requisite number of

signatures to run for president of Local One.

Section 101(a)(2) of the LMRDA’s Bill of Rights provides:

Every member of any labor organization shall have the right to meet and assemble

freely with other members; and to express any views, arguments, or opinions; and

to express at meetings of the labor organization his views, upon candidates in an

election of the labor organization or upon any business properly before the

meeting, subject to the organization's established and reasonable rules pertaining

to the conduct of meetings: 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.

29 U.S.C. § 411(a)(2). The Eighth Circuit has noted that § 101(a)(2) of the LMRDA “was

patterned after the First Amendment.” Aylla v. Transportation Commc’ns Int’l Union, 536 F.3d

911, 916 (8th Cir. 2008) (quoting Reed v. United Transp. Union, 488 U.S. 319, 326 (1989)).

“However, as the [Supreme] Court observed, the rights under § 101(a)(2) are subject to

reasonable union rules that may restrict such rights, and thus, § 101(a)(2) is not strictly parallel

with the First Amendment even though § 101(a)(2) was patterned after it.” /d. at 916-17 (citing

United Steelworkers v. Sadlowski, 457 U.S. 102, 111 (1982)).

Defendants argue the right to freedom of assembly protected under § 101(a)(2) of the

LMRDA merely “safeguards the right to meet and the right to speak freely outside of union

membership meetings” and the “right to speak freely at union meetings.” See Grant v. Chi.

Truck Drivers, Helpers & Warehouse Workers Union, 806 F.2d 114, 117 (7th Cir. 1986).

Defendants contend Local One’s rules regarding maintenance and access to the list of the

members do not violate Plaintiff's freedom of assembly because Plaintiff has no substantive nght

to review the list of attendees of membership meetings and they do not prevent any office

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candidate from traveling to the main office to access the list in accordance with § 401 of the

LMRDA.

The Court agrees that Plaintiff has failed to establish that Local One’s rules regarding

who can view the list of members and when are unreasonable as to violate his freedom of

assembly. Plaintiff essentially makes a policy argument that modern technological

advancements justify the Court declaring § 481(c) unconstitutional: “The reality here is that

Local One is not a Local at all, but it is a Regional, which was not envisioned by the Congress in

1959, when they passed 29 USC 411, 29 USC 48](c), and other statutes pertinent to this case.

We do have an internet now, and it can be used to make union elections much more fair than

they are now with the assistance of the Court.” (ECF No. 87, at 8) (emphasis added) Such □

policy argument, however, is outside the scope of the Court’s jurisdiction and is more properly

suited for Congress. Accordingly, Count XIV is dismissed.

Plaintiff further argues § 481(c) violates his rights under the Fourteenth Amendment

because he is a qualified candidate for union office. As noted above, Plaintiff has not offered

authority for his proposition that being a qualified candidate for a local union office is a

protected class for the purpose of equal protection analysis. Consequently, Counts XV is also

dismissed for failure to state a claim.

SUMMARY JUDGMENT

I. Legal Standard

The Court may grant a motion for summary judgment if “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.” Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986); Fed. R. Civ.

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P. 56; Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law

determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly

preclude summary judgment. Summary judgment is not proper if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. Jd.

A moving party always bears the burden of informing the Court of the basis of its motion.

Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving

party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of

material fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e);

Anderson, 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials

of his pleading. Jd.

In passing on a motion for summary judgment, the Court must view the facts in the light

most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor.

Celotex Corp., 477 U.S. at 331. The Court’s function is not to weigh the evidence but to

determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. “Credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge.” Torgerson, 643 F.3d at 1042 (quoting Reeves □□

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

II. Plaintiff’s claims regarding increases in union membership dues

Plaintiffs claims challenging the validity of certain votes that increased membership

dues for members of Local One are based largely on Defendants’ alleged failure to provide

proper notice to members of the vote to increase dues and failure to provide accommodations to

members who would have difficulty attending the meeting during which the vote was to take

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place. Defendants argue they are entitled to summary judgment because Plaintiff failed to

exhaust available internal union remedies before initiating this action in federal court.

“The LMRDA permits a union to institute reasonable exhaustion requirements.”° Aleem

v. Int'l Union of Am. Fed’n of State, Cty. & Mun. Employees, 52 F.3d 324 (6th Cir. 1995).

Section 101(a)(4) provides that a union member bringing a suit for vindication of rights under

the LMRDA may be required to exhaust reasonable hearing procedures within the organization.

29 U.S.C. § 411(a)(4). The exhaustion provision “was designed to further LMRDA’s purpose of

achieving union democracy by giving unions a reasonable opportunity to correct abuses and by

encouraging them to set up machinery for the prompt and fair disposition and review of

disputes.” Simmons v. Avisco, Local 713, Textile Workers Union, 350 F.2d 1012, 1016 (4th Cir.

1965); see also Runyan vy. United Brotherhood of Carpenters, 566 F. Supp. 600, 606 (D. Colo.

1983) (“The exhaustion remedy requirement is premised on the purpose of giving the labor

organization first opportunity to correct abuses and resolve disputes before resort[ing] to outside

remedies.”) (citing NERB v. Indus. Union of Marine & Shipbuilding Workers of Am., AFL-CIO,

Local 22, 391 U.S. 418, 88 (1968)).

The LMRDA, however, “does not make the exhaustion of hearing procedures mandatory

in all cases, but allows the courts in their discretion to determine whether pursuit of such

remedies is required.” Simmons, 350 F.2d at 1016 (citing Detroy v. American Guild of Variety

Artists, 286 F.2d 75, 78-79 (2d Cir. 1961)); Stevens v. Northwest Ind. Dist. Council, United Bhd.

of Carpenters, 20 F.3d 720, 731, n.28 (7th Cir. 1994) (nothing that courts have discretion

6 This paragraph and the following paragraph are incorporated, with minor alterations, from

Holschen vy. International Union of Painters & Allied Trades/Painters Dist. Council No. 2, No.

4:07CV01455 JCH, 2008 WL 4722713, at *3 (E.D. Mo. Oct. 23, 2008), aff'd sub nom. Holschen

v. International Union of Painters & Allied Trades/Painters Dist. Council #2, 598 F.3d 454 (8th

Cir. 2010).

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regarding whether to excuse a failure to exhaust before bringing an LMRDA suit); Foy v.

Norfolk & W.R. Co., 377 F.2d 243, 246 (4th Cir. 1967). “Exhaustion has not been demanded

when plaintiffs will suffer irreparable harm in the exercise of their LMRDA rights.”

Amalgamated Clothing Workers Rank & File Comm. v. Amalgamated Clothing Workers,

Philadelphia Joint Bd., 473 F.2d 1303, 1308 (3d Cir. 1973). Furthermore, “in situations where

fundamental rights are at issue, courts are more inclined to exercise their discretion and allow

cases to proceed even though the claimant has not exhausted intra-union procedures.” Darnall □□

Dalluge, No. 08-2057, 2008 WL 2874691, at *6 (C.D. Ill. July 23, 2008).

Here, Article XXII of Local One’s Constitution and Bylaws provides:

Section 1. Subject to the provisions of Section 2, the President shall be

empowered to decide disputes between members relating to their work or their

responsibilities to each other or to the Local Union and to decide the claim of

members concerning the adjustment of their grievances against employers or

Union Representatives. The decision of the President shall be final and binding in

such matters, except that a member who is not satisfied with such decision shall

have the right to appeal as provided in Section 2 hereof. Jt is expressly

understood that, as a condition of membership, each member agrees to be bound

by the provisions of Sections 1 and 2 of this Article and to exhaust all procedures

and remedies provided therein and to refrain from the institution or prosecution

of any action in any court, tribunal or other agency until the procedures and

remedies therein are fully exhausted. Any member who brings any action in

violation of this provision may, in addition to other penalties, be required to

reimburse the Local Union or its officers for the costs’ and attorneys [sic] fees

incurred in defending such action.

Section 2. Any member who has a dispute as defined in Section 1 shall, within

ten (10) days from the date such dispute arises, appeal in writing to the President

by certified mail. If such member is not satisfied with the decision of the

President, or if the President has not rendered a decision within fifteen (15) days

following receipt of the appeal, the member may appeal his or her case to the

Appeals Committee of the Executive Board. The Appeals Committee shall

consist of five (5) Executive Board Members assigned by the President. Any such

appeal to the Appeals Committee of the Executive Board shall be filed in writing

by certified mail with the Secretary-Treasurer. The decision of the Appeals

Committee shall be due or rendered not later than thirty (30) days after receipt of

the appeal. The decision of the Appeals Committee of the Executive Board shall

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be subject only to such further appeal as may be permissible under the

Constitution and Bylaw of the International Union.

(ECF No. 66-1, at 13) (emphasis added)

Article XVII of SEIU’s 2016 Constitution and Bylaws provides:

PREAMBLE. In order to ensure members’ protection from the filing of

frivolous charges, the following procedures shall apply:

Section 1. Local Unions, their officers or members, and officers of any affiliated

body, and officers of the International Union, as the case may be, may be charged

with:

(1) Violation of any specific provision of this Constitution or of the Constitution

and Bylaws of the Local Union;

(5) Financial malpractice;

(8) Violation of democratically and lawfully established rules, regulations,

policies or practices of the International Union or of the Local Union, including

democratically and lawfully established rules, regulations, policies and practices

of the International Union’s Industry Divisions, subject to their approval by the

International Executive Board.

(ECF No. 66-2, at 36-37) The sections that follow outline the procedure by which a union

member may file charges against any member or officer of a local union, bring such charges to

trial before the local union’s executive board, and appeal to the International Executive Board.

(id. at 37-39) Article XVII further provides:

Section 8. Subject to the provisions of applicable statutes, every Local Union or

member or officer thereof or officer of the International Union against whom

charges have been preferred and disciplinary action taken as a result thereof or

who claims to be aggrieved as a result of adverse rulings or decisions rendered,

agrees, as a condition of membership or affiliation and the continuation of

membership or affiliation, to exhaust all remedies provided for in the Constitution

and Bylaws of the International Union and the Local Union and further agrees

not to file or prosecute any action in any court, tribunal or other agency until

those remedies have been exhausted.

Section 9. The SEIU Member Bill of Rights and Responsibilities in the Union

shall be enforced exclusively through the procedures provided in this Article and

any decision rendered pursuant to the procedures provided for herein, including

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any appeals, shall be final and binding on all parties and not subject to judicial

review.

(ECF No. 66-2, at 39-40) (emphasis added)

Plaintiff alleged in the Amended Complaint that he “has exhausted all remedies within

Defendant Local One, SEIU in order to try to recover said excessive dues charges, with no

results.” (Am. Compl. § 5, ECF No. 46) His testimony during his deposition, however, paints a

different picture. Plaintiff testified that he emailed Garza in May 2017, asking for a refund in the

form of the difference between the 2015 dues amount ($37) and 2016 and 2017 increased dues

($42 and $47 respectively). (Dep. of Arthur Clemens at 24:10-21, ECF No. 66-4; Ex. O, ECF

No. 1-20) Garza replied that Plaintiff's request for a refund was denied because the increase in

dues was the result of a valid vote of Local One members on September 8, 2012. (Dep. of

Arthur Clemens at 24:22-25, 25:1-2, ECF No. 66-4; Ex. O, ECF No. 1-20) Plaintiff then

testified he emailed Balanoff to appeal Garza’s decision’; however, Plaintiff never received a

reply from Balanoff. (Dep. of Arthur Clemens at 25:2-4, ECF No. 66-4) When asked by

defense counsel if he had done anything further to exhaust his remedies concerning his complaint

about the increased union dues — which form the basis of Counts I, II, and IH — Plaintiff

responded “No, that’s it.”* (/d. at 25:5-24)

7 The Court notes Plaintiff's email to Balanoff was seemingly not in compliance with Local

One’s prescribed procedure for appealing disputes to a local union’s president, which mandates

such an appeal be sent by certified mail. (ECF No. 66-1, at 13) Defendants do not press this

deviation. If they had objected on such grounds, the Court would have excused Plaintiff's

noncompliance as nonmaterial and non-prejudicial.

8 Plaintiff testified about another instance in 2012 when he and another person went to the Office

of Labor-Management Standards of the United States Department of Labor to file a complaint.

(Dep. of Arthur Clemens at 27:9-25, ECF No. 66-4) Plaintiff, however, repeatedly asserted that

complaint with the Department of Labor is irrelevant to this action. (/d. at 27:25, 37:17-20, ECF

No. 66-4)

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Later in his deposition when discussing Count VIII, Plaintiff admitted he was aware of

the appeals process but chose to circumvent it.

Q. After you got a ruling from the Local One Executive Board, did you

take any other steps to appeal their ruling about your complaint about the election

of September 2017?

A. Well, I did not appeal it back to the Local One Executive Board even

though I think there’s some clause in the Constitution that says I’m supposed to

do that. I thought it was ridiculous to appeal back to the same people that ruled

against me the first time.

Q. Did you ever appeal to the SEIU International?

A. I have -- Let me think. Well, I have found this -- No, I didn’t because

I filed this lawsuit on September the 8th, which is one day before the election.

This lawsuit is claiming that, if you read my amended complaint, it basically says

that the International Union’s Constitution, the Local One’s Constitution and the

Department of Labor directives and the federal law all are used for the purpose of

denying me equal protection of the law and denying me and all other members

freedom of assembly. So it was irrelevant to try to appeal any further to the

International.

Q. So you didn’t?

A. No.

(Dep. of Arthur Clemens at 44:19-25, 45:1-19, ECF No. 66-4)

The Court finds Plaintiff failed to exhaust internal union remedies before filing this

lawsuit as required by Local One’s bylaws, SEIU’s constitution, and § 101(a)(4) of the LMRDA,

29 U.S.C. § 411(a)(4). He admitted to being aware of the requirement to appeal any

unsatisfactory decision by the Local One Executive Board to SEIU but elected to file this lawsuit

instead. To the extent Plaintiff suggests that abiding by the prescribed appeal processes outlined

in Local One’s bylaws and SEIU’s constitution would be futile, he has failed to present any

evidence of personal animus from Defendants. See Winter v. Local Union No. 639, Affiliated

With Int'l Bhd. of Teamsters, 569 F.2d 146, 149 (D.C. Cir. 1977) (requiring a union member

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seeking to avoid adverse summary judgment based on failure to exhaust internal union remedies

“make a specific and convincing showing of union animus” to demonstrate futility). Further, the

Court declines to excuse his admitted failure because he has not presented evidence that he will

be subjected to irreparable harm. Cf Holschen v. Int’l Union of Painters & Allied

Trades/Painters Dist. Council No. 2, No. 4:07CV01455 JCH, 2008 WL 4722713, at *3 (E.D.

Mo. Oct. 23, 2008) (exercising judicial discretion to excuse a union member’s failure to exhaust

internal remedies after he was expelled from the union and prohibited from pursuing internal

appeals process unless he paid a $15,000 fine), aff'd sub nom. Holschen v. Int’l Union of

Painters & Allied Trades/Painters Dist. Council #2, 598 F.3d 454 (8th Cir. 2010).

In addition to not exhausting internal union remedies, Plaintiff's claims against

Defendants fail as a matter of law because he has not demonstrated his rights under the LMRDA

were violated. The LMRDA prohibits the increase of membership dues by a local labor

organization unless authorized “by majority vote by secret ballot of the members in good

standing voting at a general or special membership meeting, after reasonable notice of the

intention to vote upon such question.” 29 U.S.C. 411(a)(3)(A) (emphasis added). The Union’s

bylaws also require “reasonable notice” of meetings. (ECF No. 66-1, at 12 & 14) “The test to

determine reasonableness under § 411(a)(3)(A) is whether the notice ‘descends to particulars,

and the ordinary union member, attentive to the interests he has at stake in such a situation, is, in

some manner, thereby made aware of the specific issue to be voted upon a reasonable time in

advance of the meeting.’” Myers v. Hoisting & Portable Local 513, 653 F. Supp. 500, 508 (E.D.

Mo. 1987) (quoting Gates v. Dalton, 67 F.R.D. 621, 628 (E.D. N.Y. 1975)). Neither §

411(a)(3)(A) nor the relevant bylaws in this case require individual notice. See Myers, 653 F.

Supp. at 508.

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Addressing the September 8, 2012 vote, Plaintiff argues he did not receive “official

notice” of the meeting. During his deposition, however, he admitted to knowing about the

meeting in advance but complained that it was at an inconvenient time.

A. All right. First of all, we worked on the night the people at Busch Stadium

worked on the night before the election and we had to work the night after, the

night of the election for a Milwaukee game. We were playing Milwaukee, both

games, and they didn’t give us any kind of a chance to, they didn’t give us any

kind of a chance to vote absentee or, or they didn’t send anybody down to our

break room and give us a chance to vote. It’s like we didn’t exist.

Q. So the vote was taken, an in person vote at the union hall... .

A. Correct.

Q. ...onanight that you would to work?

A. Right.

Q. And so you couldn’t attend because of the fact that you had to work while the

meeting was scheduled?

A. Well, not exactly right when the meeting was scheduled, but we had -- I mean,

I worked until like probably seven, eight in the morning and the meeting was at

eleven and there was not one single person where I worked that had a reasonable

opportunity to vote for that election.

Q. So the meeting didn’t conflict with your work, your position is that because

you were tired or otherwise couldn’t go, it was invalid?

A. Yes, because they could have given us an opportunity to vote absentee, and

they didn’t.

Q. Okay, no absentee ballot. Anything else about that election that you think

makes it invalid?

A. Right, no notice. J didn’t get a notice. Nobody I worked with got a notice of

the election. I heard about the, I heard about the election but I didn’t receive an

official notice of the election.

(Dep. of Arthur Clemens at 20:4-25, 21:1-13, ECF No. 66-4) (emphasis added)

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Defendants maintain notice was sent via regular mail. (Aff. of Nancy Cross {§ 21-23),

ECF No. 66-3) Regardless of whether Plaintiff actually received such notice via mail, he admits

he had knowledge of the September 8, 2012 vote but believes he should have been afforded the

opportunity to participate via absentee ballot. He fails to cite any Local One bylaw, SEIU

constitutional provision, statute, or case law requiring unions to permit members to vote via

absentee ballot. Plaintiff plainly admits he had knowledge of the September 8, 2012 vote and

was not working at the time of the vote as his shift ended by 8:00 a.m. and the meeting began at

11:00 a.m. at the union hall located less than eight miles away from his place of work. (Defs.’

SUMF 7 19, ECF No. 67) The choice between (1) attending a membership vote several hours

after his shift and eight miles away from his place of work or (2) not attending was not “so

coercive as to be a ‘substantial burden on the right to vote.’” Dobson v. Chicago & Northeast Ill.

Dist. United Bhd. of Carpenters, 707 F. Supp. 348, 352 (N.D. Ill. 1989) (finding that scheduling

a vote on a Sunday and not providing absentee ballots was reasonable even though some

members who chose to vote that day were inconvenienced); see also McGinnis v. Local 710, 774

F.2d 196, 201-03 (7th Cir. 1986) (holding that a union violated the LMRDA by requiring in-

person voting and not providing for either absentee ballots by mail or regional meetings for the

approximately 18% of members who lived more than 150 miles from the union hall).

Because of the above analysis, Defendants are entitled to summary judgment on Counts I,

Il, Ill, 1V, V, VI, and XII.

III. Plaintiff's claim against Balanoff, Garza, and Cross for alleged financial malpractice

Lastly, the Court finds Balanoff, Garza, and Cross are entitled to summary judgment on

Plaintiffs claim for financial malpractice because he failed to exhaust internal union remedies.

There is no statutory provision or definition of financial malpractice. Rather, financial

□□ -

malpractice is one of the enumerated charges with which a local union, officer, or member may

be charged according to SIEU’s Constitution and Bylaws. (ECF No. 66-2, at 36) According to

Plaintiff's testimony in his deposition, he filed a complaint related to alleged financial

malpractice with the Department of Labor in 2017.’ (Dep. of Arthur Clemens at 37:4-20, ECF

No. 66-4) By first filing a complaint with the Department of Justice, Plaintiff skipped over the

process established by Local One’s bylaws and SEIU’s constitution. Because Plaintiff failed to

utilize union procedures for making this claim against Balanoff, Garza, and Cross before filing

this action, the Court grants summary judgment in favor of the individual defendants on Count

IX.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss or in the Alternative

for Summary Judgment (ECF No. 65) is GRANTED. Counts VII, VII, X, XIII, XIV, and XV

are DISMISSED pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be

granted and the Court GRANTS summary judgment in favor of Defendants on Counts I, II, II,

IV, V, VI, IX, XI, XII as there are no genuine issues as to any material facts related to those

claims and Defendants are entitled to judgment as a matter of law pursuant to Rule 56.

A separate Judgment accompanies this Memorandum and Order.

IT IS FURTHER ORDERED that all other pending motions are DENIED as moot.

Dated HisZ By of September, 2019.

UNITED STATES DISTRICT JUDGE

9 As explained previously, Plaintiff argues “whatever [he] did with the [Department of Labor] is

irrelevant to this lawsuit.” (Dep. of Arthur Clemens at 37:17-20, ECF No. 66-4)

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