United States District Court, District of Columbia
May 15, 2001
CHARLES CALLIHAN, ET AL., PLAINTIFFS,
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: James Robertson, United States District Judge.
MEMORANDUM AND ORDER
Charles Callihan and Wilmer Thomas have sued the United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry (the
Union) and its president, Martin Maddaloni for declaratory and injunctive
relief on a number of labor law grounds. The Union moves to dismiss the
plaintiffs' claim that Section 199 of the Union's constitution violates
29 U.S.C. § 411 (a)(2), arguing that these plaintiffs lack standing
to present that claim. The Union's motion will be denied.
Section 199 of the Union's constitution provides "Any member of the
United Association found guilty of sending out circular letters of
falsehood and misrepresentation shall be expelled, and the Local Union
that permits such action shall also be expelled."
Callihan publishes a newsletter that often contains criticism of union
officials. In March 2000, the business manager of Callihan's local
union, John Hammond, filed a grievance under Section 199, alleging that
Callihan was "[m]ailing and distributing newsletters containing
falsehoods about the Local Union and other inflammatory statements."
Hammond later dropped his grievance, and Callihan continues to publish
his newsletter. Callihan nevertheless alleges that he faces constant
criticism, that he has been subjected to hostile treatment because he has
been branded a troublemaker, and that he fears future prosecution under
Callihan's challenge to Section 199 invokes 29 U.S.C. § 411
(a)(2), which 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.
Defendants' standing argument relies upon United Presbyterian Church
v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984), which established that a
subjective and speculative fear of future prosecution is insufficient to
confer standing. Id. at 1379-80. The plaintiffs in United Presbyterian
lacked standing because they were unable to allege that "any specific
action [was] threatened or even contemplated against them," Id. at
1380, and because there were "no commands[,] prohibitions[, or]
standards," against them. Id. at 1378.
In United Presbyterian, however, the challenged order "[did] not
direct intelligence-gathering activities against all persons who could
conceivably come within its scope, but merely authorize[d] them." Id. at
1380. Here, by contrast, plaintiffs point to a specific provision in
Section 199 that requires a local union to enforce its commands or suffer
expulsion. Callihan's allegation that he has undertaken, and continues to
undertake, activities that place him at genuine risk of prosecution under
Section 199 is thus sufficiently concrete to defeat the assertion that he
lacks standing. See Babbitt v. United Farm Workers Nat'l Union,
442 U.S. 289, 298 (1979) ("When the plaintiff has alleged an intention to
engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by statute, and there exists a credible threat
of prosecution thereunder, he `should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief.'").*fn1
Callihan has alleged "an actual and well-founded fear that the law
will be enforced against [him]," Virginia v. American Booksellers Ass'n,
484 U.S. 383, 393 (1988), and he also alleges a harm of "self-censorship
. . . that can be realized even without an actual prosecution." Id.; see
also Ruocchio v. United Transp. Union, 181 F.3d 376 (3d Cir. 1999)
(action under 411(a)(2) can continue even after charges are dropped so
that plaintiff can seek declaratory and injunctive remedy to prevent
further chilling of union speech), cert. denied, 528 U.S. 1154 (2000).
The Union's fall back argument, that only local officials are
responsible for enforcing Section 199 so that any injury to Callihan is
not traceable to the Union, is untenable. Not only is Section 199 a part
of the national union's constitution, but the local is required by its
terms to enforce it.
It remains to be decided whether Section 199 is unlawful in view of
29 U.S.C. § 411(a)(2), but it is this ___ day of May, 2001,
ORDERED that defendants' motion to dismiss that claim for lack of
standing [#5] is denied.