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Mancini v. Service Employees International Union

United States District Court, D. Nevada

October 25, 2017

CHERIE MANCINI, FREDERICK GUSTAFSON, and CLARK COUNTY PUBLIC EMPLOYEES ASSOCIATION, Plaintiffs,
v.
SERVICE EMPLOYEES INTERNATIONAL UNION, LUISA BLUE, and MARY HENRY, Defendants.

          ORDER GRANTING IN PART THE DEFENDANTS' MOTION TO DISMISS (ECF NO. 14)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE.

         The defendants move to dismiss the first and eighth claims in the plaintiffs' complaint. The defendants argue the first claim under the Labor Management Reporting and Disclosure Act (LMRDA) fails because plaintiff Cherie Mancini received adequate notice of the charges against her before she was removed as president of Local 1107. The defendants contend the eighth claim under the LMRDA fails because the defendants gave adequate notice of the trusteeship hearing. The parties are familiar with the facts of this case and I do not set them out here except where necessary. I grant the motion in part.

         A. Count One

         Count one of the complaint alleges the defendants violated 29 U.S.C. § 411(a)(5) by (1) not serving Mancini personally or by registered or certified mail as required by the SEIU constitution, (2) not adequately identifying the charges against Mancini so she could prepare a defense, and (3) not providing her a full and fair hearing. ECF No. 1 at 8-14. Section 411(a)(5) provides that “[n]o member of any labor organization may be fined, suspended, expelled, or otherwise disciplined . . . by such organization . . . unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; [and] (C) afforded a full and fair hearing.” The LMRDA provides a private right of action for a person whose LMRDA rights have been infringed. 29 U.S.C. § 412.

         1. Manner of Service

         The defendants argue the allegation that Mancini was not served with the notice of charges personally or by registered or certified mail does not state a claim under the LMRDA. They contend the LMRDA requires only that a union member charged with discipline be served with the charges, but it does not specify the manner. Additionally, the defendants argue Mancini does not, and could not, contend that she did not receive actual notice, and she does not plausibly allege prejudice from the method of service.

         The plaintiffs do not respond to this argument and they therefore consent to this portion of the motion being granted. LR 7-2(d). Moreover, the motion is meritorious. The LMRDA requires only that the person being disciplined be “served” with the charges. 29 U.S.C. § 411(a)(5)(A). It does not specify the manner of service. The fact that the SEIU constitution specifies a manner of service does not support an LMRDA claim. Wellman v. Int'l Union of Operating Eng'rs, 812 F.2d 1204, 1206 (9th Cir. 1987) (“Even assuming a union fails to follow its own rule, it does not violate the LMRDA unless the violation of its internal rule also contravenes specific prohibitions in the LMRDA.”). Finally, the plaintiffs identify no injury from the means by which Mancini was served. Id. (“The LMRDA does not allow the recovery of damages for a union's violation of a technical internal rule that does not adversely affect a member's due process rights.”). I therefore grant the defendants' motion to dismiss this portion of count one.

         2. Content of Notice

         The defendants argue the notice Mancini received complied with the statutory requirements. The plaintiffs respond that the LMRDA requires the defendants to follow their own constitution, and the SEIU constitution requires the notice of charges to include specific citations to the provision of the constitution or bylaws with which the disciplined employee is charged. They contend the defendants did not comply with that requirement in the notice Mancini received.

         Section 411(a)(5) requires that disciplinary charges be “specific enough to inform the accused member of the offense that he has allegedly committed.” Int'l Bhd. of Boilermakers v. Hardeman, 401 U.S. 233, 245 (1971) (quotation omitted). The LMRDA does not require that a charge identify the particular provision of a union constitution or bylaw that the plaintiff has allegedly violated, nor must it apply the facts to any particular provision or bylaw. Johnson v. Nat'l Ass'n of Letter Carriers Branch 1100, 182 F.3d 1071, 1074-75 (9th Cir. 1999). Rather, the charge must “include a statement of the facts describing the incident on which the charge is based.” Id. at 1074. An “an informal written statement of facts suffices, ” and the “level of detail required is that needed to notify the accused of the incidents that form the basis of the charge so that he or she may prepare a defense.” Id. at 1074-75. Moreover, the charge “does not need to allege facts sufficient to support the charge or the particular elements of the charge. Instead, the goal is to give the accused member notice of the conduct that he or she is expected to defend.” Id. at 1074 n.5.

         Mancini has not plausibly alleged that the notice failed to adequately apprise her of the charges against her. The notice of charges sets forth a sufficient statement of facts describing the UMC bargaining incident, including Mancini's public communication about the alleged malfeasance of the bargaining committee. The individual local union members' charges, which were attached to the notice of charges given to Mancini, identified the UMC incident with sufficient factual detail for Mancini to know what she was accused of and to prepare a defense. ECF Nos. 4-2; 4-3. Those charges included a copy of the letter Mancini sent about the Local investigating allegations against members of the bargaining team. ECF No. 4-3 at 6. That suffices under the LMRDA.

         Mancini contends the SEIU constitution requires specification of the provisions that were violated. However, the LMRDA does not, and Mancini has asserted this claim under the LMRDA. Even if violation of the SEIU constitution could support a viable LMRDA claim, the plaintiffs have not plausibly alleged a violation. Mancini takes issue with Hearing Officer Carol Nieters' reference to Article 16, Section 4 of the Local's constitution because although one of the charges identified this specific provision, it was based on not allowing members to participate in a settlement agreement signed by Mancini in August 2016. ECF No. 4-3 at 2. But Nieters cited the provision in relation to the UMC incident. ECF No. 4-4 at 13, 17, 27. However, Nieters cited the provision in support of other provisions that were contained in the notice of charges. Nieters used Article 16, Section 4's aspiration that collective bargaining should involve members to explain why Mancini's unilateral conduct in relation to the UMC bargaining and the public undermining of the bargaining committee were serious violations. Consequently, the failure to specifically cite that provision in relation to the UMC bargaining charge was neither a violation of the LMRDA nor did it cause injury even if it was a technical violation. Wellman, 812 F.2d at 1206.

         Finally, Nieters cited to Article 21, Section 3(3) of the Local constitution even though that was not in the notice of charges. But Article 21, Section 3(3) is exactly the same as Article XVII, Section 1(3) of the SEIU Constitution, which was cited in the notice of charges. That does not plausibly state a violation of the LMRDA nor does it allege an injury. I therefore grant the defendants' motion to dismiss this portion of count one.

         3. Full ...


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