06-0355-cv, 06-0504-cv Doro v. Sheet Metal Workers UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August…

06-0355-cv, 06-0504-cv
Doro v. Sheet Metal Workers
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2006 3
(Argued February 5, 2007 Decided August 17, 2007) 4
Docket Nos. 06-0355-cv(L), 06-0504-cv(XAP) 5
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LOUIS DORO, 7
Plaintiff-Appellant-Cross-Appellee, 8
v. 9
SHEET METAL WORKERS’ INTERNATIONAL 10
ASSOCIATION, 11
Defendant-Appellee-Cross-Appellant, 12
LOCAL UNION 38, SHEET METAL WORKERS’ 13
INTERNATIONAL ASSOCIATION AND GINO COLUMBO, 14
PRESIDENT OF LOCAL UNION NO. 38, IN HIS 15
OFFICIAL AND INDIVIDUAL CAPACITIES, 16
Defendants. 17
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B e f o r e: MESKILL, NEWMAN and SACK, Circuit Judges. 19
20
Appeal from a judgment of the United States District 21
Court for the Southern District of New York, Brieant, J., entered 22
on December 27, 2005, granting summary judgment for Defendant- 23
Appellee-Cross-Appellant Sheet Metal Workers’ International 24
Association and denying Plaintiff-Appellant-Cross-Appellee Louis 25
Doro’s motion for partial summary judgment on his claim under the 26
Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411. 27

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Affirmed; cross-appeal dismissed. 1
CHRISTOPHER WATKINS, Chester, NY (Stephen 2
Bergstein, Bergstein & Ullrich, Chester, 3
NY, of counsel), 4
for Appellant. 5
JEFFREY S. DUBIN, Huntington, NY, 6
for Appellee. 7
MESKILL, Circuit Judge: 8
This case asks us to decide whether the Sheet Metal 9
Workers’ International Association (the International) may be 10
held liable under the Labor-Management Reporting and Disclosure 11
Act (LMRDA), 29 U.S.C. § 411, because in its quasi-appellate 12
role, the International ratified a decision of the local union 13
that allegedly violated member Louis Doro’s (Doro) due process 14
rights. We hold that the United States District Court for the 15
Southern District of New York, Brieant, J., properly granted 16
summary judgment for the International and dismissed the claim. 17
Affirmed; cross-appeal dismissed. 18
BACKGROUND 19
Doro is a sheet metal worker who since 1989 has been a 20
member in good standing of the International and its affiliate, 21
Local Union 38 (Local 38). Doro occasionally worked overtime for 22
a Local 38 contractor, P & P Sheet Metal, performing pipe 23
sketching and estimating jobs related to piping and electrical 24
work. On October 22, 1998, fellow Local 38 member Nicholas 25
Colombo, Sr. (Nicholas Colombo), filed charges against Doro with 26

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the local union. The charging document alleged the following 1
misconduct: 2
-Member working for P & P Sheet Metal (a [Local] 38 3
contractor) accepting substandard wages and benefits for 4
work performed after 40 hours with full knowledge that 5
benefits were not being paid into [Local] 38 and the 6
International Pension. 7
-Member failing to obtain an overtime permit. 8
-Member receiving two benefits (vacation and dues check- 9
off in their [sic] pay[)]. 10
On the same day, Nicholas Colombo filed charges against another 11
Local 38 member, Anthony Pelella (Pelella). The documents 12
charging Pelella and Doro are identical, except for the name and 13
address of the charged party. 14
Doro, in his April 8, 2005 deposition, testified that 15
he was one of about 13 members whom Local 38 charged for work 16
performed for P & P Sheet Metal, allegedly in violation of the 17
union constitution, and that he understood the substance of the 18
charges against him. According to Doro, Roy Seacor, P & P Sheet 19
Metal’s owner, called a meeting of all the charged members and 20
said not to worry about the charges, and that the issue of any 21
fines imposed would be dealt with after the union trial. 22
On November 4, 1998, less than two weeks after mailing 23
the charges, Local 38’s Executive Board Trial Committee tried 24
both Doro and Pelella separately. The record before us contains 25
no transcript of the proceedings against Doro and Pelella. 26
Nicholas Colombo’s brother Gino Colombo served as Chairman of the 27
Trial Committee. Doro did not object to the composition of the 28

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1 Doro contends that the minutes “referred to documentary
evidence never shown to [him] at trial and which he never had an
opportunity to confront and rebut,” but he does not identify that
evidence or its relevance to his due process claim against the
International.
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Trial Committee. Nicholas Colombo read the charges, and Doro 1
responded that he was “sorry if [he] did anything wrong.” Doro 2
was not represented by counsel at the hearing or, apparently, at 3
any other time during the union proceedings against him. The 4
record provides no details of Pelella’s trial, or any indication 5
whether Pelella admitted the factual basis for the charges 6
against him. 7
The Trial Committee concluded that Doro and Pelella 8
each violated three sections of the union constitution and fined 9
Doro $11,096 and Pelella $4,418. On November 18, 1998, Gino 10
Colombo read the “trial minutes” of both trials to Local 38’s 11
membership. The membership ratified the findings of guilt and 12
the fines.1
13
Doro appealed to Arthur Moore, the General President of 14
the International, who affirmed Local 38’s decision on January 15
22, 1999. Doro further appealed to the International’s Executive 16
Council, which on July 7, 1999, upheld the decision below, 17
although it modified the penalty to remove any possibility of 18
expulsion. Doro appealed that decision to the International’s 19
Grievances and Appeals Committee on September 2, 1999. 20
Doro’s appeal was pending before the Grievances and 21

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2 We assume for purposes of the instant appeal that Doro’s
typed “script” for the hearing, which is reproduced in the record
in lieu of a transcript with the annotation “Read on August 20,
2004 before Grievance & Appeals Committee,” represents an
accurate account of Doro’s presentation to the Committee.
Neither party appears to dispute this.
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Appeals Committee for almost five years, during which time Local 1
38 filed suit in federal court under the LMRDA against Pelella to 2
collect Pelella’s unpaid fine. See Local Union No. 38 v. 3
Pelella, 350 F.3d 73, 78 (2d Cir. 2003). Pelella asserted a 4
counterclaim for violation of his due process rights and breach 5
of contract. Id. On November 27, 2001, after a two-day trial, a 6
jury found Local 38 liable for violating Pelella’s due process 7
rights. Id. at 79. In affirming the order of the district court 8
granting Pelella fees and costs, we noted that Local 38 conceded 9
“that the charges and procedures to which Local 38 subjected 10
Pelella reflect, at the very least, negligent compliance with the 11
due process rights guaranteed by the LMRDA.” Id. at 91. 12
Doro finally appeared before the Grievances and Appeals 13
Committee on August 20, 2004. In a statement that Doro claims he 14
read before the Convention’s Grievance and Appeals Committee (the 15
Committee), he argued that the written charges prepared by 16
Nicholas Colombo “did not allege when or where the infractions 17
were committed, the number of hours in question, nor even the 18
work that was covered by the Union contract.”2 Doro cited the 19
Pelella decision as “case law” that compelled the Committee to 20
reverse Local 38’s decision against him. 21

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The Committee recommended that the General Executive’s 1
decision be upheld. In recounting the prior proceedings, the 2
Committee stated that Local 38 had observed Doro’s due process 3
rights, “including serving him with charges stating with 4
sufficient details the conduct of which he was accused and giving 5
him a full opportunity to defend against those charges.” In 6
giving its reasons for recommending that the Convention uphold 7
the decision of the Executive Council, the Committee stated that 8
“Doro, both in his statements to the Committee and in his prior 9
statements during the appeal process, had acknowledged violating 10
the SMWIA Constitution” and had “also acknowledged in his 11
statements before the Committee that he understood the nature of 12
the charges against him.” The Committee’s recommendation made no 13
reference to the Pelella decision. In a letter dated August 27, 14
2004, the General Secretary-Treasurer of the International 15
informed Doro that the General Convention had approved the 16
Committee’s recommendation and voted to reject his appeal. 17
On October 18, 2004, Doro filed suit in federal court 18
against Local 38, the International, and Gino Colombo for 19
“willfully” violating his due process rights under the LMRDA. 20
On July 6, 2005, Doro settled with Local 38 and Gino Colombo. 21
The remaining defendant, the International, moved for summary 22
judgment on the ground that Doro, because he sits on the Board of 23
Directors of and owns a 24 percent stake in CAQS, Inc., which 24

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employs Local 38 members, is an “interested employer” who is 1
barred from bringing this suit pursuant to 29 U.S.C. § 411(a)(4). 2
Doro moved for partial summary judgment on the issue of 3
liability, asserting that as a matter of law the International 4
knowingly had ratified a facially illegal decision by Local 38. 5
The district court denied both motions, but entered summary 6
judgment sua sponte for the International on the ground that Doro 7
made no showing that the International acted in bad faith in 8
performing its appellate functions. This appeal followed. 9
DISCUSSION 10
Standard of Review 11
We review de novo a district court’s grant of summary 12
judgment, construing the evidence in the light most favorable to 13
the nonmoving party and drawing all inferences and resolving all 14
ambiguities in favor of the nonmoving party. See Aon Fin. Prods. 15
v. Société Générale, 476 F.3d 90, 95 (2d Cir. 2007). Summary 16
judgment is appropriate “if the pleadings, depositions, answers 17
to interrogatories, and admissions on file, together with the 18
affidavits, if any, show that there is no genuine issue as to any 19
material fact and that the moving party is entitled to a judgment 20
as a matter of law.” Fed. R. Civ. P. 56(c). 21
The Merits 22
Doro contends that the district court erred in denying 23
his motion for summary judgment on the issue of liability and in 24

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3 The LMRDA’s “[s]afeguards against improper disciplinary
action” provide that
No member of any labor organization may be fined, suspended,
expelled, or otherwise disciplined except for nonpayment of
dues by such organization or by any officer thereof unless
such member has been (A) served with written specific charges;
(B) given a reasonable time to prepare his defense; (C)
afforded a full and fair hearing.
29 U.S.C. § 411(a)(5).
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granting summary judgment for the International sua sponte. 1
Doro’s LMRDA claim relies on a number of facts that, even if not 2
formally disputed in the parties’ Local Civil Rule 56.1 3
statements, are nonetheless unsettled, particularly the specific 4
factual background of Doro’s and Pelella’s union trials. 5
However, Doro has not identified for either the district court or 6
this Court any genuine issue of material fact that would raise a 7
jury question on the issue we deem dispositive. See Fed. R. Civ. 8
P. 56(c). 9
Doro contends that the International knowingly ratified 10
Local 38’s alleged violation of the due process rights afforded 11
him by the LMRDA.3 He argues that the insufficiency of the 12
charges Local 38 brought against him are evident from the face of 13
the document, and that he informed the International’s Grievance 14
and Appeals Committee of the Pelella decision. The International 15
contends that it did not act in bad faith in affirming the 16
decision of Local 38, and that Doro may not bring suit under the 17

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4 Although the International has filed a cross-appeal, it
does not seek to modify the district court’s judgment. Thus, “no
cross-appeal was necessary to bring these contentions before us
if they can be considered otherwise. They would simply be
alternative grounds on which the judgment below could be
supported.” United States v. Raines, 362 U.S. 17, 27 n.7 (1960).
We therefore dismiss the International’s cross-appeal and
consider the arguments made in support thereof as arguments for
affirming the district court’s judgment.
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LMRDA because he is an interested employer.4 We need not decide 1
whether Doro is an interested employer pursuant to 29 U.S.C. 2
§ 411(a)(4), because we hold that as a matter of law Doro has 3
failed to adduce any evidence that the International ratified any 4
unlawful action of Local 38. 5
Congress enacted the LMRDA to correct widespread abuses 6
of power and corruption by union officials, including the abuse 7
of union disciplinary powers. Pelella, 350 F.3d at 83. The 8
LMRDA contains a “Bill of Rights” for union members, including 9
the right of a member to bring an action against his union and 10
its leaders in court or before an administrative agency for 11
violations of the LMRDA’s substantive provisions. Id. This 12
right-to-sue provision was designed to give union members the 13
tools to insure the fairness of their union as a representative 14
institution. Pelella, 350 F.3d at 83. 15
We have recognized that this “right to sue” may permit 16
a union member to recover damages from an international union if 17
the international ratifies the illegal acts of a local union. 18
Phelan v. Local 305, 973 F.2d 1050, 1062 (2d Cir. 1992). Common 19

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law agency principles govern an international union’s liability 1
for the actions of its local chapters or their officers. Id. 2
However, an international union’s liability for violations of a 3
member’s rights may not be coextensive with that of the local 4
union. While a union member may prevail against a local union 5
under the LMRDA if the local union violated one of his enumerated 6
rights, he may prevail against the international only if the 7
international ratified the local union’s violation. Rodonich v. 8
House Wreckers Union Local 95, 817 F.2d 967, 973 (2d Cir. 1987). 9
In the pending case, the Committee’s recommendation to 10
uphold the Executive Council’s affirmance of discipline for 11
Doro’s violation was based on his admission of his violation and 12
his further admission that he understood the charges against him. 13
It remains an open question whether a local union can violate a 14
member’s due process rights under the LMRDA when the member does 15
not contemporaneously challenge the deficiencies of the charging 16
document and admits, during the intraunion appeal process, the 17
factual basis for the charges and his understanding of the nature 18
of the charges. Compare Strom v. Nat’l Ass’n of Basketball 19
Referees, 564 F.Supp. 250, 256 (E.D. Pa. 1983) (“[I]ndependent 20
knowledge of the general nature of the accusations is irrelevant 21
to the requirement that written specific charges be provided.”), 22
and Gleason v. Chain Serv. Rest., 300 F.Supp. 1241, 1253 23
(S.D.N.Y. 1969) (“An ex post facto showing that the accused had 24

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knowledge of the events surrounding the alleged offenses cannot 1
cure the lack of adequate written notice made mandatory by the 2
statute.”), aff’d, 422 F.2d 342 (2d Cir. 1970), with Stodghill v. 3
Serv. Employees’ Int’l Union, 13 F.Supp.2d 960, 965-66 (E.D. Mo. 4
1998) (holding that the charges were sufficiently specific when 5
the union member, by his own admission, “was prepared to defend 6
himself against the charges”), aff’d in part and rev’d in part on 7
other grounds, 192 F.3d 1159 (8th Cir. 1999), and Vars v. Int’l 8
Bhd. of Boilermakers, 215 F.Supp. 943, 948 (D.Conn. 1963) 9
(finding no due process violation where member was “very 10
familiar” with factual basis for the charges). We need not 11
decide this question today. It suffices for our decision to hold 12
that, with the law unsettled as to whether a member’s admissions 13
of both his violations and his understanding of charges insulates 14
a local from liability for imposing discipline on arguably 15
inadequately specific charges, an intraunion appellate body does 16
not ratify the arguable due process violation of the local by 17
affirming the member’s discipline on the basis of his admissions. 18
CONCLUSION 19
We conclude that the district court properly granted 20
summary judgment for the International because Doro has failed as 21
a matter of law to demonstrate that the International violated 22
the LMRDA in relying on his admissions in affirming Local 38’s 23
decision to discipline him. Therefore the judgment of the 24

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district court is affirmed, and the International’s cross-appeal 1
is dismissed. 2

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