     13-2038-cv
     John Brady v. International Brotherhood of Teamsters et al.


 1                              UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT
 3
 4                                               August Term, 2013
 5
 6             (Submitted: December 3, 2013                            Decided: February 3, 2014)
 7
 8                                            Docket No. 13-2038-cv
 9
10   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
11
12   JOHN BRADY,
13
14                     Plaintiff-Appellant,
15
16                              v.
17
18   INTERNATIONAL BROTHERHOOD OF TEAMSTERS, THEATRICAL
19   DRIVERS AND HELPERS LOCAL 817, THOMAS J. O’DONNELL, as
20   Secretary Treasurer and President of Local 817, IBT, and FRANCIS J.
21   CONNOLLY, JR., as Treasurer of Local 817, IBT,
22
23                     Defendants-Appellees.
24
25   -----------------------------------------X
26
27   Before: LIVINGSTON, LOHIER, and CARNEY, Circuit Judges.
28
29          John Brady appeals from a judgment of the United States District Court
30   for the Southern District of New York (Forrest, J.) dismissing his claim
31   brought pursuant to the Labor-Management Reporting and Disclosure Act
32   (the “LMRDA”). The District Court concluded that it lacked subject matter
33   jurisdiction under the LMRDA because Brady was not and has never been a
34   member, or member in substance, of the International Brotherhood of
35   Teamsters, Theatrical Drivers and Helpers Local 817. We AFFIRM.
 1
 2                                          Eugene G. Eisner, Eisner & Mirer, P.C.,
 3                                          New York, New York, for Plaintiff-
 4                                          Appellant.
 5
 6                                          Eugene S. Friedman, William Anspach,
 7                                          Cristina E. Gallo, Friedman & Wolf,
 8                                          New York, New York, for Defendants-
 9                                          Appellees.
10
11   LOHIER, Circuit Judge:

12         John Brady appeals from a judgment of the United States District Court

13   for the Southern District of New York (Forrest, J.) dismissing this case for lack

14   of subject matter jurisdiction. Brady sued the International Brotherhood of

15   Teamsters, Theatrical Drivers and Helpers Local 817 (“IBT Local 817”) and

16   two of its officers (together with IBT Local 817, “Defendants”), alleging that

17   Defendants violated Title I of the Labor-Management Reporting and

18   Disclosure Act (the “LMRDA”), 29 U.S.C. § 411 et seq., by denying him

19   membership in IBT Local 817 in retaliation for his complaints about a union

20   member. The District Court held that it lacked subject matter jurisdiction

21   because Brady pleaded facts affirmatively establishing that he was neither a

22   member nor a member in substance of the union. We affirm.

23




                                             2
 1                                  BACKGROUND

 2          “The amended complaint alleges the following facts, which we assume

 3   to be true and construe in the light most favorable to the plaintiff.” See Cruz

 4   v. FXDirectDealer, LLC, 720 F.3d 115, 118 (2d Cir. 2013). At various times

 5   between 1981 and 2007, Brady sought and obtained work through IBT Local

 6   817’s hiring hall. In 2007, while working on a film set, Brady criticized a

 7   union member for not distributing promised cash per diem payments to

 8   drivers for the set. In 2008 Brady was passed over for membership in IBT

 9   Local 817 and told by defendant Thomas J. O’Donnell, the then Secretary

10   Treasurer of IBT Local 817, that the refusal was in retaliation for Brady’s

11   criticism relating to the per diem payments. Later, in 2012, Brady requested a

12   membership application from defendant Francis J. Connolly, Jr., the newly

13   elected Secretary Treasurer of IBT Local 817. Connolly refused to provide

14   one.

15          The Constitution and By-Laws of IBT Local 817 (the “Union

16   Constitution”) provide that a person is “eligible for membership” if he or she

17   has “good moral character” and “works in the craft or employment over

18   which *IBT Local 817+ has jurisdiction.” Union Constitution § 4.01. Section




                                             3
 1   4.03 of the Union Constitution establishes three “Formal Requirements” for

 2   union membership for an “eligible applicant”: (1) the applicant “shall have

 3   executed a written application for membership,” (2) the applicant “shall have

 4   tendered the initiation fees and one month’s dues,” and (3) “*t+he local shall

 5   have accepted his application and dues.” Union Constitution § 4.03. The

 6   amended complaint alleges that Brady satisfied the eligibility criteria of § 4.01

 7   and therefore was entitled to receive a membership application. It also

 8   alleges that IBT Local 817 “routinely granted membership” to individuals

 9   without requiring them “to request or fill out an application for

10   membership.”

11         Brady claims that the union’s refusal to provide him an application or

12   grant him membership was retaliatory, in violation of the LMRDA. The

13   District Court determined that it lacked subject matter jurisdiction under the

14   LMRDA because Brady’s allegations established that he was neither a

15   member nor a member in substance of IBT Local 817.

16         This appeal followed.

17




                                             4
 1                                    DISCUSSION

 2         On appeal, Brady acknowledges that he was not a formal member of

 3   IBT Local 817, but claims that he was a union member “in substance.”

 4   Although we conclude that Brady failed to plead facts establishing that he

 5   was even a member “in substance,” we clarify that the LMRDA confers

 6   subject matter jurisdiction over claims brought by members in substance as

 7   well as by formal union members.

 8         “A case is properly dismissed for lack of subject matter jurisdiction

 9   under Rule 12(b)(1) when the district court lacks the statutory or

10   constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d

11   110, 113 (2d Cir. 2000). Title I of the LMRDA guarantees certain rights to

12   “*e+very member of a labor organization,” 29 U.S.C. § 411(a)(1), and creates a

13   right of civil action for union members to enforce those rights, id. § 412.

14   Because “Title I regulates only the relationship between the union and its

15   members, not other relationships,” subject matter jurisdiction under the

16   LMRDA exists only where the plaintiff is a member of the defendant union.

17   Phelan v. Local 305 of United Ass’n of Journeymen, 973 F.2d 1050, 1056 (2d

18   Cir. 1992) (citation and quotation marks omitted).




                                             5
 1         The LMRDA defines a member, in relevant part, as “any person who

 2   has fulfilled the requirements for membership in [a labor] organization.” 29

 3   U.S.C. § 402(o). To determine whether an individual is a union member, we

 4   have suggested that the focus should be “on whether [a] plaintiff[] ha[s]

 5   fulfilled the requirements of membership.” Phelan, 973 F.2d at 1057. “*T+hat

 6   union officials have not performed the ministerial acts necessary to give

 7   formal recognition to a person’s status as a member is not determinative.” Id.

 8   (quotation marks omitted). In Hughes v. Local Number 11 of International

 9   Association of Bridge, Structural and Ornamental Ironworkers, 287 F.2d 810

10   (3d Cir. 1961), the Third Circuit relied on similar reasoning to hold that the

11   LMRDA’s protection extends to “those who are everything that members are,

12   to those who are in substance members, despite the fact that the officials of

13   the particular labor organization have not performed the ministerial acts

14   precedent to formal admission and recognition.” Id. at 815.

15         We agree with the Third Circuit and adopt the “member in substance”

16   formulation articulated in Hughes and subsequently recognized by other

17   sister Circuits as relevant to cases in which the union does not retain

18   discretion “to refuse membership . . . to those who have fulfilled its standard




                                             6
 1   membership requirements.” Id. at 816; see Gavin v. Structural Iron Workers

 2   Local No. 1, 553 F.2d 28, 31 (7th Cir. 1977); Moynahan v. Pari-Mutuel Emps.

 3   Guild of Cal., Local 280, 317 F.2d 209, 210 (9th Cir. 1963).

 4         Applying that formulation here, Brady argues that he qualified as a

 5   member in substance of IBT Local 817 because he was eligible to be a member

 6   and the § 4.03 requirements were purely ministerial acts. We disagree. In

 7   doing so, we again turn to Hughes, in which the Third Circuit explained that

 8   Hughes’s formal admission to the defendant union was merely “ministerial”

 9   because that union’s constitution required it to admit Hughes as a transfer

10   from an affiliated local. Hughes, 287 F.2d at 815-16. Unlike the union

11   requirements in Hughes, the Union Constitution here does not require that

12   IBT Local 817 accept every eligible applicant for membership. Cf. Gavin, 553

13   F.2d at 31 (application approval not ministerial where union constitution

14   specifically reserved discretion to reject a transfer applicant); Moynahan, 317

15   F.2d at 210 (application approval not ministerial where union constitution

16   required favorable vote of current membership before admission).

17         To the contrary, the Union Constitution gives the union discretion over

18   membership decisions. For example, even an eligible applicant for




                                             7
 1   membership in IBT Local 817 is not considered a member until the union

 2   “accept*s+” his application, which it is not required to do. Union Constitution

 3   § 4.03. Had Brady actually applied, therefore, IBT Local 817 would have

 4   retained discretion to accept or reject his application.

 5         Brady also characterizes IBT Local 817’s requirements as “ministerial”

 6   because the union “routinely granted” membership to individuals who did

 7   not meet the requirements. We reject the characterization insofar as it

 8   conflicts with the plainly discretionary contractual language of the Union

 9   Constitution. There is no provision in the Union Constitution that requires

10   IBT Local 817 to accept all eligible applications. See LaSalle Bank Nat’l Ass’n

11   v. Nomura Asset Capital Corp., 424 F.3d 195, 206 (2d Cir. 2005). In any event,

12   that IBT Local 817 perhaps only rarely exercised its discretion to reject an

13   eligible applicant did not disable it from rejecting Brady’s application.

14         Finally, Brady argues that IBT Local 817 should not be permitted to

15   “profit” from its alleged bad faith refusal to provide him with an application.

16   Because Brady was not a member or member in substance of the union,

17   however, the District Court was without jurisdiction to entertain this

18   argument. IBT Local 817’s denial of union membership to Brady, if it can




                                              8
1   even be described as such, is not a wrong that is redressable under the

2   LMRDA. See Phelan, 973 F.2d at 1056 (“*C+ourts have refused to entertain

3   suits by plaintiffs against unions that have rejected them for membership.”);

4   Abrams v. Carrier Corp., 434 F.2d 1234, 1254 (2d Cir. 1970) (“Wrongful denial

5   of union membership does not come within the ambit of . . . the LMRDA.”).

6                                  CONCLUSION

7         The District Court correctly concluded that it lacked subject matter

8   jurisdiction to adjudicate Brady’s claim under the LMRDA. For the foregoing

9   reasons, the judgment of the District Court is AFFIRMED.




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