Damone v. Teamsters Local 804

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

SCOTT DAMONE, VINCENT PERRONE,

STEVEN AUZ, DAVID ORINGER, ANTHONY

CERULLI, CHRIS WILLIAMSON, PETER

MASTRANDREA, NEIL O’BRIEN, and DAVID

FENNELL,

Plaintiffs,

v. MEMORANDUM AND ORDER

TEAMSTERS LOCAL 804, DELIVERY AND 18-CV-4059 (LDH) (ST)

WAREHOUSE EMPLOYEES,

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, EDWEEN VILLALTA, in his

individual and official capacity, AND JOHN

PICCINICH, in his individual and official capacity,

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Plaintiffs Peter Mastrandrea, Neil O’Brien, and David Fennell bring the instant action

against Defendants Teamsters Local 804 (“Local 804”), Delivery and Warehouse Employees,

International Brotherhood of Teamsters (“International Teamsters”), Edween Villalta, and John

Piccinich pursuant to the Labor Management Reporting and Disclosure Act (the “LMRDA”) for

violation of their rights to freedom of speech and assembly; unlawful imposition of discipline;

violation of their equal rights; and violation of their rights to due process.1 Plaintiffs move

pursuant to Rule 56 of the Federal Rules of Civil Procedure for partial summary judgment.

UNDISPUTED FACTS2

1 Plaintiffs voluntarily dismissed their claims against Villalta and Piccinich in their individual capacities. (ECF No.

40.) On May 29, 2019, Plaintiffs Damone, Perrone, Auz, Oringer, Cerulli, and Williamson voluntarily dismissed all

of their claims. (ECF No. 43.)

2 Unless otherwise indicated, the undisputed facts are taken from the parties’ statements of material facts pursuant to

Local Rule 56.1 and annexed exhibits. To the extent any fact is disputed, it is so indicated. Facts that are not

I. The Parties

Local 804 is a labor organization as that term is defined in Section 3(i) of the LMRDA

and is a local affiliate of International Teamsters. (Pls.’ Stmt. of Material Facts Pursuant to

Local Civ. R. 56.1 (“Pls.’ 56.1”) ¶ 14, ECF No. 60-1.) Together, Plaintiffs are members of a

political faction within Local 804. (Id. ¶ 1.) This faction comprised the leadership of Local 804

from 2009 until 2015. (Id. ¶ 1.) Until December 31, 2015, Mastrandrea served as vice president;

O’Brien served as a trustee; and Fennell served as recording secretary. (Id. ¶¶ 7, 10, 13.) During

this period, Sylvester served as President, and Plaintiffs were each members of Sylvester’s

executive board. (Id.)

In December 2015, Local 804 held elections for officers, trustees, and business agents.

(Id. ¶ 29.) Villalta and his slate of candidates defeated the incumbent Sylvester Administration

and took office on January 1, 2016. (Id. ¶ 31.) Defendants Villalta and Piccinich assumed the

position of president and secretary-treasurer, respectively. (Id. ¶¶ 15, 18.) The other members of

Villalta’s administration who took office on January 1 were Danny Montalvo, Danny Betancourt,

Dwight Philip, Rick Gomez, Walter Weidtman. (Id. ¶ 32.) Montalvo served as vice president,

Betancourt served as the recording secretary, Philip, Weidtman, and Gomez served as trustees.

(Id. ¶¶ 33–37.) Shocker and Forcelli were elected as business agents during the Villalta

Administration. (Id. ¶¶ 38–39.)

II. President Sylvester’s Decision to Pay Accrued Vacation

contradicted by citations to admissible evidence are deemed admitted. See Giannullo v. City of N.Y., 322 F.3d 139,

140 (2d Cir. 2003) (“If the opposing party . . . fails to controvert a fact so set forth in the moving party’s Rule 56.1

statement, that fact will be deemed admitted.”). Defendants did not file a counter 56.1 statement because they

concede that there is no dispute of material fact. (See ECF No. 57.) Accordingly, all facts in Plaintiffs’ 56.1

statement are deemed admitted.

Local 804’s president is its principal officer and has the authority to direct and supervise

business agents and pay the salaries of Local 804’s officers and employees. (Id. ¶¶ 20–21.) The

president has the sole authority to interpret the union’s bylaws and to determine circumstances

that warrant a cash payment to employees and officers for their accrued and unused vacation

time. (Id. ¶ 22, 46.) The bylaws provide that officers and employees may carry over up to three

weeks of accrued but unused vacation time per year. (Id. ¶ 42.) Except in extraordinary

circumstances, as determined by the principal officer and reported to the membership, no officer

or employee of Local 804 may receive a cash payment in lieu of vacation. (Id. ¶ 43.)

On or about December 17, 2015, then-President Sylvester authorized payment to

Plaintiffs for their accrued and unused vacation time, totaling approximately $197,000. (Id. ¶ 45;

Oct. 25, 2019 Decl. Benjamin Dictor (“Dictor Decl.”), Ex. Z at Tr. 11:25–12:5, ECF No. 60-28.)

Plaintiffs received checks signed by President Sylvester and Secretary-Treasurer Reynolds on or

about December 30, 2015. (Pls.’ 56.1 ¶ 55.) Sylvester did not report the vacation wage

payments to the Local 804 membership. (Id. ¶ 4.) However, the payout was consistent with the

practice of prior executive boards. (Id. ¶ 54.)

IV. The 2016 International Convention Election

Every five years International Teamsters holds a convention, at which delegates vote on

changes to the constitution and elect officers and trustees. (Id. ¶¶ 60–61.) In or about February

2016, former-President Sylvester, former-Secretary-Treasurer Reynolds, and other former

members of Sylvester’s executive board announced that they would run for election on the same

slate to serve as delegates at the upcoming convention, scheduled for April 2016. (Id. ¶¶ 64, 66.)

The same month, Villalta, Piccinich, and most other members of Villalta’s administration

announced that they would run in the delegate election on an opposing slate. (Id. ¶ 65.)

As part of their campaign, members of the Villalta Administration distributed two flyers

to Local 804 members referencing the accrued and unused vacation payouts to Plaintiffs. (Id. ¶

67.) One of the flyers included a headline stating, “Tim Sylvester Handed Out Close To

$200,000 In Checks To His Board and Staff As He Walked Out The Door at Local 804,” and

“Tens of thousands of dollars from our treasury. [sic] Without the ‘report to the membership’

required by Local 804 bylaws. (We don’t remember any notice – do you. [sic] But we’re

looking.).” (Id. ¶ 68.) The same flyer also said that Sylvester wanted to become Secretary-

Treasurer of the International Teamsters because “[i]t seems our local union treasury wasn’t big

enough” and “Hasn’t Local 804 done enough for Tim?” (Id.) The second flyer stated that “Tim

Sylvester and His E-Board Pocketed $154,000 On Their Way Out the Door” and featured a

photo of Sylvester dressed as a cowboy and holding a piggy bank with money sticking out of it

on which the words “Vegas or BUST” were printed. (Id. ¶ 69.) The second flyer also stated

“[H]e and his friends could use some of that $154,000 to fly to Vegas on their own dime.” (Id. ¶

69.)

On April 28, 2016, the ballots for the delegate election were counted, and Sylvester’s

slate prevailed winning all delegate and alternate delegate spots. (Id. ¶ 70.) No member of

Villalta’s administration was elected delegate or alternate delegate. (Id. ¶ 71.)

V. Villalta’s Investigation into the Vacation Payments

On May 12, 2016, after losing the delegate election, the Villalta Administration hired

Ronald Acevedo to investigate Sylvester Administration officers and business agents, including

Plaintiffs, in connection with former-President Sylvester’s decision to authorize payment of their

accrued and unused vacation. (Id. ¶ 73.) Walter Kane, Local 804’s outside counsel, also assisted

in the investigation. (See id. ¶ 75.)

Throughout the investigation, Villalta, Piccinich, Acevedo, and Kane kept members of

Villalta’s administration “up-to-date” on the status and findings of the investigation. (Id. ¶¶ 75,

77–89.) On June 6, 2016, Acevedo emailed Piccinich and informed him that he planned to direct

Plaintiffs to appear for questioning. (Id. ¶ 76; Dictor Decl., Ex. R, ECF No. 60-20.) Acevedo

wrote that members of the administration should be prepared to “charge them . . . if they fail to

appear and explain the vacation pay issue.” (Dictor Decl. Ex. R.) On July 9, 2016, Acevedo

wrote to Kane concerning the status of the investigation, noting that “Sylvester is running for

office and we should use that for leverage to get him to appear to make a statement.” (Pls.’ 56.1

¶ 83.) Then, on July 20, 2016, Acevedo emailed Villalta, Piccinich, and Kane the following:

I think that Fennell should be charged for conversion (stealing the minutes) and

bringing reproach upon the [International Teamsters] by failing to cooperate in the

investigation. I would charge him with taking the vacation pay too. If you are going

charge him, I suggest that you allow me to send demand letters to the entire old E-

Board directing them to appear for questioning. If they don’t appear, they should

be charged too. It is time to increase the pressure and let them know that they cannot

refuse to cooperate in an investigation without consequences. This will all boil

down to the original issue—whether they violated the Bylaws by taking the

vacation payout. Thoughts?

(Dictor Decl. Ex. X, ECF No. 60-26.) Approximately one week later, on July 28, 2016, a

telephone conference was conducted with Kane, Villalta, Montalvo, Piccinich, Bentacourt, and

Avecedo where they discussed the investigation. (Pls.’ 56.1 ¶ 90.)

On December 10, 2016, Acevedo emailed Kane copies of draft charges against Plaintiffs

that Acevedo had drafted. (Id. ¶ 95.) In turn, on December 15, 2016, Kane sent an email to

Villalta, Montalvo, Piccinich, Bentacourt, and Acevedo attaching a draft of the charges against

Plaintiffs and directing Villalta, Montalvo, Piccinich, Bentacourt, and Acevedo to review the

charges and ask any questions. (Id. ¶ 97.) On January 6, 2017, Kane emailed Villalta,

Piccinich, Montalvo, and Betancourt a draft letter that Kane had authored on behalf of Villalta

advising the membership that “[l]ast week, I [Villalta] received charges from Secretary Treasurer

John Piccinich with regard to the possible embezzlement of $197,872 by the former

administration of Local 804.” (Id. ¶ 102.) Four days later, on January 10, 2017, Kane sent a

copy of the draft charges against Reynold, Sylvester, and Fennell to Villalta, Montalvo, and

Betancourt for input. (Id. ¶ 104.)

On January 12, 2017, Piccinich filed internal union charges against Plaintiffs alleging

violations of various provisions of the International Teamster Constitution and Local 804 Bylaws

for facilitating and accepting a payout of unused vacation days and for failing to cooperate in

Acevedo’s investigation. (Id. ¶ 105.) In the Winter 2016–2017 news pamphlet distributed to

Local 804 members, Villalta wrote that his administration had “discovered violations [of the

International Teamster Constitution and Local 804 Bylaws] by members of the previous

executive board” and that “[t]hey have been afforded the chance to explain and defend

themselves, but no one is above the law.” (Id. ¶ 99.)

Local 804 conducted a hearing on the charges against Fennell on February 3, 2017. (Id. ¶

107.) The hearing panel consisted entirely of members of Villalta’s executive board, including

Villalta, Montalvo, Betancourt, Philip, Weidtman, and Shocker. (Id. ¶¶ 107–08.) Piccinich

presented the charges against Fennell with assistance from Forcelli. (Id. ¶ 109.) Piccinich was

not permitted to participate in any of the deliberations or determinations of guilt or the resulting

penalties. (Id. ¶ 110.) On March 17, 2017, Local 804 conducted hearings on charges against

Mastrandrea and O’Brien. (Id. ¶ 113.) The hearing panel again consisted of Villalta, Montalvo,

Betancourt, Philip, Weidtman, and Shocker. (Id.) Piccinich presented the charges against

Mastrandrea and O’Brien with assistance from Forcelli. (Id. ¶ 114.) Plaintiffs asked the panel

members to recuse themselves on the basis that the members had prejudged Plaintiffs’ guilt. (Id.

¶ 115.) The panel members refused. (Id.)

In separate undated decisions, the hearing panel sustained the charges against Plaintiffs.

(Id. ¶ 121.) Plaintiffs, along with other former members of Sylvester’s executive board, were

found jointly and severally liable for $197,872.66, totaling the full amount of the vacation

payments, and they were each ordered to make full restitution. (Id.) In addition, these

individuals were each barred from holding office or being employed by Local 804 or any

International Teamsters affiliate for the later of a four-year period or until the imposed financial

obligations were satisfied and were barred from membership and participation in union affairs

for the later of a two-year period or until the imposed financial obligations were satisfied. (Id.)

STANDARD OF REVIEW

Summary judgment must be granted when there is “no genuine dispute as to any material

fact and the [movants are] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The movants bear the initial burden of demonstrating the absence of a genuine issue of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Feingold v. New York, 366 F.3d 138,

148 (2d Cir. 2004). Once the movants meet their initial burden, the non-movants may defeat

summary judgment only by adducing evidence of specific facts that raise a genuine issue for

trial. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250; Davis v. New York, 316 F.3d 93, 100

(2d Cir. 2002). The Court is to believe the evidence of the non-movants and draw all justifiable

inferences in their favor, Anderson, 477 U.S. at 255, but the non-movants must still do more than

merely assert conclusions that are unsupported by arguments or facts, BellSouth Telecomms., Inc.

v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996).

DISCUSSION

“The LMRDA was enacted to encourage democratic self-governance in unions and to

curb widespread abuses and corruption among union leadership.” Maddalone v. Local

17, United Bhd. of Carpenters and Joiners of Am., 152 F.3d 178, 183 (2d Cir. 1998). To that

end, Section 101(a)(5) provides that “[n]o member of any labor organization may be fined,

suspended, expelled, or otherwise disciplined except for nonpayment of dues” unless such

member has been “served with written specific charges; [] given a reasonable time to prepare his

defense; [and] afforded a full and fair hearing.” 29 U.S.C. § 411(a)(5). A full and fair hearing

“need not incorporate the same procedural protections found in criminal proceedings . . . but ‘the

basic principles of due process’ must be in place.” Gillen v. Int'l Bhd. of Teamsters, 341 F.

App’x 728, 730 (2d Cir. 2009) (quoting United States v. Int’l Bhd. of Teamsters, 247 F.3d 370,

385 (2d Cir. 2001)). In determining whether a hearing comports with due process, courts have

considered whether the deciding tribunal exhibited a high probability of actual bias and whether

the tribunal’s members prejudged the guilt of the accused. See Sawyer v. Am. Fed’n of Gov’t

Employees, 96-CV-7599 (TPG), 1998 WL 307055, at *4 (S.D.N.Y. June 11, 1998) (examining

whether political opponent of union official, in playing a significant role in investigating and

deciding charges brought against union official, created an unacceptable risk of partiality and

bias), aff’d sub nom. Sawyer v. Am. Fed’n of Gov’t Employees, AFL-CIO, 180 F.3d 31 (2d Cir.

1999); Perry v. Int’l Longshoremen’s Ass’n, AFL-CIO, 638 F. Supp. 1441, 1448 (S.D.N.Y.

1986) (“This inquiry has expanded beyond these facial indicia of procedural fairness to include a

determination of whether the members of the tribunal prejudged the guilt of the accused and

whether the discipline was merely a pretext for general political retaliation or retaliation for a

member’s exercise of protected Title I rights.”) (citing Goodman v. Laborers’ International

Union of North America, supra, 742 F.2d 780 (3d Cir. 1984)).

Plaintiffs argue that the composition of the hearing panel alone fundamentally

undermines basic due process. (Pls.’ Mem. L. Supp. Mot Summ. J. (“Pls.’ Mem.”) 3, ECF No.

60-44.) There is no dispute that the hearing panel that adjudicated the charges against Plaintiffs

consisted entirely of members of Villalta’s executive board who had ordered and participated in

the investigation, including Villalta, Montalvo, Betancourt, Philip, Weidtman, and Shocker.

(Pls.’ 56.1 ¶¶ 107–08, 113.) These are the same individuals who defeated Plaintiffs in the

December 2015 election, ousting Plaintiffs from their positions. (Id. ¶¶ 31–39.) These are also

the same individuals against whom Plaintiffs later prevailed in the 2016 delegate election. (Id.

¶¶ 70–71.) In other words, the panelists were the political rivals of Plaintiffs not once, but twice.

Nonetheless, Defendants counter that the composition of the panels by itself is not determinative.

(Defs.’ Opp’n Mot. Summ. J. (“Defs.’ Opp’n”) 3-4, ECF No. 61.) That may be true. However,

while Plaintiffs place great significance on the make-up of the panels, it is not the only evidence

before the Court demonstrating a high probability of actual bias.

As Plaintiffs note, members of the panels: (1) were kept up-to-date on the status and

findings of the investigation; (2) were consulted by Kane and Acevedo on the drafting of the

charges against Plaintiffs; (3) participated in the drafting of public statements concerning the

charges prior to the hearings wherein conclusions were made concerning the allegations against

Plaintiffs; (4) and participated in a telephone conference concerning the charges prior to their

drafting and filing. (Pls.’ Mem 3 (citing Pls.’ 56.1. ¶¶ 75–100).) In addition, Plaintiffs were

more than once the focus of public criticism from the members of the panels. During the

December 2015 election, Villalta’s campaign distributed two flyers to Local 804 members

referencing the accrued and unused vacation payouts. (Id. ¶ 67.) And, in the Winter 2016–2017

news pamphlet distributed to Local 804 members, Villalta blasted Plaintiffs for what he called

“violations [of the International Teamsters Constitution and Local 804 Bylaws].” (Id. ¶ 99.)

Thus, contrary to Defendants’ contention, Plaintiffs’ evidence amounts to more than “[m]erely

pointing out the identities of the Executive Board members[.]” (Defs.’ Opp’n 4.)

This case is not unlike Wildberger v. Am. Fed’n of Gov’t Employees, AFL-CIO, relied on

by both Plaintiffs and Defendants. In Wildberger, a national union president initiated an

investigation into the local union president, which culminated in a disciplinary proceeding.

Wildberger v. Am. Fed’n of Gov’t Employees, AFL-CIO, 86 F.3d 1188, 1190 (D.C. Cir. 1996).

The proceeding was conducted by a committee appointed by the national president. Id. at. 1191.

Moreover, removal of the local president was subject to the national president’s final approval.

Id. On several occasions prior to the hearing, the local president publicly criticized the national

president and accused him of wrongdoing. Id. 1194. The national president’s supporters

opposed the local president’s bid to unseat the national president. Id. 1194. The local president

brought suit, alleging that his removal violated the LMRDA, because, inter alia, the national

president, his political opponent, initiated the investigation against him and appointed a trial

committee consisting entirely of the national president’s political supporters. Id. at 1190, 1192–

93. The court noted that “[w]hen combined with the undisputed evidence that [the national

president] was repeatedly the focus of [the local president’s] criticism and that [the local

president] was at one time [the national president’s] political opponent . . . we can no longer

assume that these procedures guaranteed [the local president] a ‘full and fair hearing.’” Id. at

1196. Accordingly, the court held that the national president’s use of a disciplinary procedure in

which he initiated the investigation, determined probable cause, and served as the final

adjudicator posed a “sufficiently high risk of bias” to violate the requirements of the LMRDA.

Id. at 1190. The same conclusion is warranted here.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for partial summary judgement is

GRANTED. The discipline imposed on Plaintiffs is void and the matter is remanded for a new

hearing consistent with 29 U.S.C. § 411(a)(5). See 29 U.S.C. § 412.

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

November 30, 2020 LASHANN DEARCY HALL

United States District Judge