                 NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3646-13T1


SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION LOCAL UNION 22,

     Plaintiff-Respondent,             APPROVED FOR PUBLICATION

v.                                        November 13, 2015

                                          APPELLATE DIVISION
RAYMOND KAVANAGH,

     Defendant-Appellant/
     Third Party Plaintiff,

v.

DAVID CASTNER, THOMAS FISHBACK,
JAMES O'REILLY, CHARLES BEELITZ,
RICHARD KING, THOMAS GALLAGHER,
JAMES SHARKEY, JOHN KEENAN,
ALAN "BRUCE" PAK, JOHN CALIGUIRE,
WILLIAM BUCHANAN,

     Third-Party Defendants.
_______________________________________

         Argued September 29, 2015 – Decided November 13, 2015

         Before Judges Fisher, Espinosa, and Currier.

         On appeal from the Superior Court of New
         Jersey, Law Division, Union County, Docket
         No. L-3445-12.

         Dominick   Bratti   argued   the   cause for
         appellant (Wilentz, Goldman & Spitzer, P.A.,
         attorneys; Mr. Bratti, of counsel and on the
         briefs;   Annemarie   T.   Greenan,   on the
         briefs).
           Mark E. Belland argued the cause for
           respondent (O'Brien, Belland & Bushinsky,
           LLC, attorneys; Mr. Belland, of counsel;
           David F. Watkins, Jr., on the brief).

       The opinion of the court was delivered by

CURRIER, J.S.C. (temporarily assigned).

       In this appeal, we consider the factors to be applied by a

trial judge in determining the reasonableness of a fine imposed

by a union for the violation of its constitution.                      Defendant

Raymond   Kavanagh    appeals    the    April    9,    2014    order    granting

summary judgment to plaintiff Sheet Metal Workers' International

Association Local Union 22 (Local 22) and confirming the fines

imposed   against    him   by    the   union    in    this    matter.      After

reviewing the record in light of the contentions raised on this

appeal, we affirm the judge's ruling as to Kavanagh's violations

of the union constitution, but remand for the trial judge to

determine the reasonableness of the fine imposed, giving due

consideration to the factors we set forth in this opinion.

       Kavanagh was a long-time member of Local 22.               In 1997, he

became an owner of Quality Sheet Metal and Welding Inc. which

was not a signatory to a collective bargaining agreement.                      In

July   2011,   Kavanagh    was   charged   with       violating   the    union's

constitution because he was not an employee or employer bound by

the collective bargaining agreement with Local 22.                      Kavanagh

resigned his membership the following month.                  He was informed



                                       2                                A-3646-13T1
that a trial would be held in October 2011.                         Kavanagh responded

that he was not subject to the union's jurisdiction because he

had resigned his membership and because he was not permitted to

bring outside counsel with him to the hearing.                             Following the

conclusion of the trial, at which Kavanagh did not appear, he

was   found     to       have    violated        six      provisions   of    Local     22's

constitution and was assessed a fine of $115,000.

      A   civil      suit    was    filed       to     enforce   the   union    judgment.

Summary judgment was granted to Local 22 and the fines were

confirmed.     This appeal ensued.

      On appeal, Kavanagh alleges numerous errors in the trial

judge's ruling on the motion for summary judgment.                             We deem it

necessary     to     only       address    the       following    arguments:     Kavanagh

contends he was not subject to Local 22's jurisdiction as he had

resigned      his       membership,       and       his   due    process    rights    were

violated when he was not permitted to have counsel with him at

the hearing.         Aside from the reasonableness of the fines, which

we address below, we do not find the remainder of the arguments

meritorious        of    discussion       in     a    written    opinion.       R.   2:11-

3(e)(1)(E).1




1
  Kavanagh contended that the trial court 1) applied the wrong
standard   of  review  in   motions  regarding  the  complaint,
counterclaims and third party complaint; 2) failed to review de
                                                    (continued)


                                                3                                 A-3646-13T1
     The    relationship          between       a   member       and       a       union        is   a

contractual one; the union's bylaws and constitution are the

contract, and the contract is enforceable in state court.                                            N.

Jersey Newspaper Guild v. Rakos, 110 N.J. Super. 77, 84 (App.

Div.),   certif.     denied,       56    N.J.       478   (1970).              A    union        must

discipline members "in accordance with their constitutions and

bylaws."      Id.    at    88    (quoting       Dudek     v.    Pittsburgh               City    Fire

Fighters, 228 A.2d 752, 756-57 (Pa. 1957)).

     Kavanagh argues that his resignation was effective upon its

receipt,2   and     he    was,    therefore,        not   subject          to       the    union's

discipline.       When a violation occurs before the resignation,

however,    the      member        is    still        subject         to           the     union's

jurisdiction.       Article Eighteen of Local 22's Constitution and

Ritual   provides        for     the    discipline        and    sanction            of      former

members.3     "[A] union member must leave the union prior to his



(continued)
novo the union's decision; and 3)                       erred    in    holding             that      he
failed to exhaust internal remedies.
2
  "Any member may resign from membership. Resignations shall be
effective upon receipt of written notification by mail or hand
delivery to any full-time officer or business representative at
his or her local union."    Constitution and Ritual of the Sheet
Metal Workers Association, Art. 16, § 14.
3
  "[A] suspended member and, also, a former member who has been
expelled, or has resigned in accordance with Section 14 of
Article Sixteen (16), shall be permitted to appear before a
local union trial committee or an International Trial Board to
                                                    (continued)


                                            4                                              A-3646-13T1
violation    of    the     union's     rule    if    he   is    to     avoid        being

disciplined therefor."         Newspaper Guild, supra, 110 N.J. Super.

at 88.   Thus, the trial judge properly ruled that the union had

jurisdiction to impose disciplinary action against Kavanagh.

    Article       Eighteen    also    provides      authority    for    an     accused

party to select any good standing member of his or any other

local union as his counsel.             Although this specific issue has

not been addressed by a New Jersey court, we again note that the

provisions set forth in a union's constitution form a contract

between the union and its members.               The provisions establish the

procedure    for      an   internal      trial      and   appeal       and     include

punishable conduct.          "[T]he courts' role is but to enforce the

contract."     NLRB v. Allis-Chambers Mfg. Co., 388 U.S. 175, 182,

87 S. Ct. 2001, 2008, 18 L. Ed. 2d 1123, 1129 (1967).

    Unions     have    a   significant       interest     in   controlling          their

disciplinary      proceedings;       therefore,     outsiders    are     prohibited

from appearing at the proceedings as there is no ability to

control their conduct.         Local 22 had no contempt power or other

authority    to    control     a     non-union      member's    conduct        in     its

proceedings.       Other jurisdictions have addressed this provision



(continued)
defend against charges preferred against him or her . . . ."
Id. at Art. 18, § 1(a).




                                         5                                   A-3646-13T1
and found that union members are not entitled to outside counsel

during disciplinary trials.             Cornelio v. Metro. Dist. Council,

243   F.    Supp.    126,    128    (E.D.       Pa.   1965)    (upholding     a   union

provision which only permitted a union member to be represented

by another union member at a hearing), aff'd, 358 F.2d 728 (3d

Cir. 1966), cert. denied, 386 U.S. 975, 87 S. Ct. 1167, 18 L.

Ed. 2d 134 (1967); see United States v. Int'l Bhd. of Teamsters,

247 F.3d 370, 385 (2d Cir. 2001) ("Not all of the due process

protections     available      in    the    federal        courts   apply    to   union

disciplinary proceedings."); Frye v. United Steelworkers of Am.,

767 F.2d 1216, 1224 (D.C. Cir.), (federal law does not require

union      disciplinary      hearings      to    include      all   the    protections

regarding judicial proceedings, including representation by an

attorney), cert. denied, 474 U.S. 1007, 106 S. Ct. 530, 88 L.

Ed. 2d 461 (1985); Curtis v. Int'l Alliance of Theatrical Stage

Emps. & Moving Picture Mach. Operators, 687 F.2d 1024, 1029 (7th

Cir. 1982) (upholding the decision to not allow plaintiff the

representation of a lawyer at a union hearing); Buresch v. Int'l

Bhd. of Elec. Workers, 343 F. Supp. 183, 191 (D. Md. 1971)

("Neither the Sixth Amendment to the United States Constitution

nor [federal law] guarantees a union member the right to be

represented         by      legal    counsel          in      union       disciplinary

proceedings."), aff'd o.b., 460 F.2d 1405 (4th Cir. 1972).




                                            6                                 A-3646-13T1
       We find, that as a member of Local 22, Kavanagh bound

himself to the provisions of its constitution.                             He was therefore

not entitled to be represented by outside counsel at the trial.4

Kavanagh was given the opportunity to appear and be heard; he

chose not to avail himself of that right.

       A   trial     judge's       review      of    internal        union    functions     is

limited.       "[W]here the proceedings within the organization have

been regular, fair, and free from fraud, and the party whose

rights are involved has been given the opportunity to appear and

be heard, the courts will not inquire into the merits of the

case or review the action of the association . . . . "                               Lewis v.

Am. Fed'n of State, Cnty. & Mun. Emps., 407 F.2d 1185, 1193 (3d

Cir.), cert. denied, 396 U.S. 866, 90 S. Ct. 145, 24 L. Ed. 2d

120 (1969).        "'[A]lthough the courts may be without power to

review     matters    of        credibility         or   of    strict       weight    of   the

evidence, a close reading of the record is justified to insure

that     the   findings         are     not    without        any    foundation      in    the

evidence.'"          Id.    at        1195    (quoting        Vars    v.     Int'l   Bd.     of

Boilermakers, 320 F.2d 576, 578 (2d Cir. 1963)).                                Mindful of

that   admonition,         we    address      the    issue      of   the     fines    imposed

against Kavanagh as a result of the violations.


4
  We note there are no restrictions on a member's right to
consult with an attorney in preparation for the hearing.



                                               7                                     A-3646-13T1
      The constitution of the union authorizes the imposition of

a fine.    In a suit brought by the union, the judge is to make a

determination as to whether the fine was arbitrarily imposed and

unreasonable      in    amount    before     enforcing    it.    Under     Allis-

Chambers, supra, 388 U.S. at 192, 87 S. Ct. at 2013, 18 L. Ed.

2d at 1134, it should not be "unreasonably large."                     The judge

has the authority to reduce the fine if appropriate.                   Newspaper

Guild, supra, 110 N.J. Super. at 91.

      New Jersey courts have not addressed the issue of what

constitutes an "unreasonably large" union fine since 1970.                       In

Newspaper Guild, the union brought several charges against the

defendant for improper activities during a strike; the defendant

had continued to earn income and received a promotion at the

company after the strike ended.              Id. at 80.    The judge analyzed

the challenged fine under the conditions present when the fine

was   levied:     the    nature   of   the    offenses,    how   the   defendant

profited from the offenses, and the current economic conditions.

Id. at 91.        The judge also looked to the inflationary climate

that existed in 1970 when assessing the reasonableness of the

fine.     Ibid.        Finally, the judge noted that the fine had a

punitive purpose that "was to serve as a deterrent to others."

Ibid.       The judge confirmed the fine using these factors and




                                        8                                A-3646-13T1
found    it    to     be    sufficiently    related     to    the    conduct    of    the

defendant.          Ibid.

       Other jurisdictions looking at this issue have added other

factors to the analysis.              In CWA Local 7400 v. Abrahamson, 422

N.W.2d       547,     549    (Neb.   1988),     the   union    sought    to     enforce

judgment of fines it had imposed against seventy of its members

for    their     activity      during   a     strike.         The    fines    had    been

calculated using the gross wages earned by the member for each

day worked during the strike.               Id. at 553.

       In considering the fine, the Nebraska Supreme Court looked

at    the    "reasonable       relationship"       between     the    fines    and    the

conduct that led to the penalty.                      Ibid.     It noted that any

punitive effect the fines might have "in no way lessens their

effect in deterring future strikebreakers and in impressing upon

union       members    the    importance      of   solidarity."         Id.    at    554.

Finally, the Abrahamson court recognized that liquidated damages

are appropriate in these types of union disputes as "the actual

damages to the union are impossible to ascertain.                            It is just

such a situation that liquidated damages are intended to cover."

Ibid.

       Ohio has established a comprehensive analysis to determine

whether fines are "unreasonably large."                       Int'l Bhd. of Elec.

Workers, Local Union No. 986 v. Smith, 602 N.E.2d 782 (Ohio Ct.




                                            9                                   A-3646-13T1
App. 1992).       In Smith, the defendant was fined $5,000 after

voluntarily informing her employer that a fellow union member

intended to falsify her timesheet, a violation of the union

constitution.      Id. at 783-84.         The court began its analysis by

noting "[t]he severity of the fine alone or its punitive effect,

however, is not tantamount to . . . unreasonableness."                         Id. at

788.    It then set forth the following eight factors to be used

when analyzing the reasonableness of the fine:

             1)    methods   and    formulas   used   for
             calculation, (2) the member's conduct for
             which the fine was imposed, (3) income of
             the   member,  (4)   amount   of  fine,  (5)
             resulting harm or damage to the union or its
             other members, (6) nature of offenses being
             punished, (7) manner and extent to which the
             member benefited or profited, and (8) the
             current economic conditions.

             [Ibid. (citations omitted).]

       In   Newspaper     Guild,    supra,     110       N.J.   Super.   at   91,    we

recognized that it was appropriate for a fine to "serve as a

deterrent to others who might be inclined to dilute the union's

bargaining    power     by    defying    its       legitimate    directives."         To

properly redress the violative conduct, however, the fine must

be   connected    to    the    violations.          We   therefore   find     that   in

determining      the   reasonableness         of    a    union-imposed   fine,       the

trial   judge    should       consider   relevant         factors,   including       the

following:       1) the conduct for which the fine was imposed; 2)




                                         10                                   A-3646-13T1
the extent to which the member benefited or profited; 3) the

calculation    of     the   fine;   4)    the    harm   to   the    union    and      its

members; and 5) the current economic conditions.                          We believe

these factors provide the necessary framework for judges to make

the required assessment of union-imposed fines.

      In light of the above ruling, we remand the matter for the

trial judge to consider the factors we have set forth in making

a determination as to the reasonableness of the fines imposed by

the   union.     We    affirm   the      judge's     rulings   on   the     remaining

arguments.

      Affirmed   in    part,    remanded        in   part.     We   do    not    retain

jurisdiction.




                                          11                                    A-3646-13T1
