Saturday, January 15, 2011

Lawyers and pro bono (free) work

Vice President Biden recently announced a partnership between the U.S. Department of Labor and the American Bar Association under which the ABA committee on referrals will assist the DOL in FMLA and FLSA cases, where the employees' claims appear to have merit but the DOL lacks the resources to take the case to court.

This announcement reminded me of the fact that of all the major professions in the US, the legal profession does the most pro bono (free) work for the American public. I think back to my days --- nearly 20 years ago now --- when I practiced labor law with a major Philadelphia firm and did my share of pro bono cases : AIDS discrimination, prisoners' civil rights, and what we labor lawyers called "the third bar." As part of the informal "third bar" I litigated on behalf of workers who had been abused not by their employers, but by their unions. Here's an example:


United States Court of Appeals,
Third Circuit.
Robert B. BRENNER, Jude Brenner, Alexander Bronsberg, George Butchko, Eugene Cardoni, Gerald Drause, Marcella Draus, John Evanitus, Catherine Evanitus, John Gould, Juanita Gould, Michael Hardik, Catherine Hardik, Frank Heylek, Margaret Heylek, Donald Hoyt, Marie Hoyt, Robert T. Johnson, Mary Lou Johnson, Joseph A. Kopeza, Jr., Catherine Kopeza, Nicholas Kovalchik, Bernadine Kovalchik, Robert Kreidler, Nancy Kreidler, Stanley J. Mazur, Jr., Dorothy Mazur, Richard E. Mogavero, Richard F. Mogavero, Robert T. Morgan et ux, Ronald Petro, Ann Petro, Nicholas Politz, Beverly Politz, James F. Roberts, Jr., Nancy H. Roberts, Gerald C. Siperko, Susan K. Siperko, Frank Terescavage, Daniel J. Trotta, Eugene C. Turner, Alice E. Turner, Wayne Yatsko, Leona Yatsko, John Zimnicky, and Jean Zimnicky, Appellants,
v.
LOCAL 514, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA; United Brotherhood of Carpenters and Joiners of America; Keystone District Council, United Brotherhood of Carpenters and Joiners of America; Edward Blazejewski, Sr.; George Walish, General Executive, United Brotherhood of Carpenters and Joiners of America; John Anello, Representative, United Brotherhood of Carpenters and Joiners of America; Pat Campbell, General President, United Brotherhood of Carpenters and Joiners of America.

No. 90-5277.
Argued Sept. 25, 1990.
Decided March 18, 1991.
Rehearing and Rehearing In Banc Denied
April 18, 1991.

Members of local union sued local and international unions and others alleging that they had been treated discriminatorily in retaliation for internal union activities. Summary judgment for defendants on most of the claims was granted by the United States District Court for the Middle District of Pennsylvania, Edwin M. Kosik, J., and order was certified as final. On appeal, the Court of Appeals, Sloviter, Chief Judge, held that: (1) evidence did not show that international union encouraged, authorized or ratified alleged actions of local union in discriminatorily failing to refer plaintiffs to work through union hiring hall; (2) retention of regulatory and supervisory powers by international union in its constitution merely gave it discretionary right, as distinguished from duty, to intervene in affairs of local union; (3) six-month period of limitations in National Labor Relations Act did not apply; (4) alleged failure of local union to refer plaintiffs to work through hiring hall in a fair manner was a continuing violation for statute of limitations purposes; (5) applicable statute of limitations began to run against each union member who withdrew from union no later than the date of withdrawal, unless local's business agent affirmatively acted to prevent such member from regaining his status as union member; and (6) alleged retaliation did not constitute “discipline” for purposes of cause of action under the Labor Management Reporting and Disclosure Act.

Affirmed in part, reversed in part, and remanded.

Rosenn, Circuit Judge, filed opinion concurring in part and dissenting in part.


West Headnotes

[1] KeyCite Citing References for this Headnote

231H Labor and Employment
231HXII Labor Relations
231HXII(D) Bargaining Representatives
231Hk1207 Duty to Act Impartially and Without Discrimination; Fair Representation
231Hk1219 Actions for Breach of Duty
231Hk1219(12) k. Weight and Sufficiency of Evidence. Most Cited Cases
(Formerly 232Ak766 Labor Relations)

Though international union may have been intentionally or negligently guilty of tunnel vision, evidence did not show that it encouraged, authorized or ratified alleged actions of local union in discriminatorily failing to refer to work through union hiring hall certain union members in retaliation for internal union activities; it was unrebutted that international union conducted investigations on the two occasions when it received letter specifically protesting hiring hall abuses, international was not required to credit the allegations as true, and international's failure to act after charges were filed with National Labor Relations Board (NLRB) did not evidence ratification in that NLRB found most of them to lack merit. Labor Management Relations Act, 1947, § 301, 29 U.S.C.A. § 185.

[2] KeyCite Citing References for this Headnote

231H Labor and Employment
231HXII Labor Relations
231HXII(B) Labor Organizations
231Hk1079 Superior, Subordinate, and Federated Bodies
231Hk1081 k. Rights as Between Affiliate and General Organization. Most Cited Cases
(Formerly 232Ak142 Labor Relations)

Mere constructive knowledge of possible illegal activity on the local level is not sufficient to impose a legal duty to intervene on international union.

[3] KeyCite Citing References for this Headnote

231H Labor and Employment
231HXII Labor Relations
231HXII(B) Labor Organizations
231Hk1079 Superior, Subordinate, and Federated Bodies
231Hk1081 k. Rights as Between Affiliate and General Organization. Most Cited Cases
(Formerly 232Ak142 Labor Relations)

Retention of regulatory and supervisory powers by international union in its constitution merely gives discretionary right, as distinguished from duty, to intervene in the affairs of local union.

[4] KeyCite Citing References for this Headnote

231H Labor and Employment
231HXII Labor Relations
231HXII(B) Labor Organizations
231Hk1079 Superior, Subordinate, and Federated Bodies
231Hk1083 k. Liability of General Organization for Acts of Affiliates. Most Cited Cases
(Formerly 232Ak144 Labor Relations)

In absence of specific undertaking in international union's constitution to prevent mistreatment of local union members in retaliation for internal union activity, international union could not be held liable on breach of contract theory for failure to prevent such retaliation. Labor Management Relations Act, 1947, § 301, 29 U.S.C.A. § 185.

[5] KeyCite Citing References for this Headnote

231H Labor and Employment
231HXII Labor Relations
231HXII(D) Bargaining Representatives
231Hk1207 Duty to Act Impartially and Without Discrimination; Fair Representation
231Hk1219 Actions for Breach of Duty
231Hk1219(4) k. Time to Sue, Limitations, and Laches. Most Cited Cases
(Formerly 232Ak758.1, 232Ak758 Labor Relations)

The six-month statute of limitations in the National Labor Relations Act for making charges of making unfair labor practices was not applicable to action by union members against local union under the Labor Management Relations Act, alleging hiring hall discrimination in retaliation for internal union activities, and district court should apply the most closely analogous state statute of limitations. Labor Management Relations Act, 1947, § 301, 29 U.S.C.A. § 185; National Labor Relations Act, § 10(b), as amended, 29 U.S.C.A. § 160(b).

[6] KeyCite Citing References for this Headnote

241 Limitation of Actions
241II Computation of Period of Limitation
241II(A) Accrual of Right of Action or Defense
241k55 Torts
241k55(6) k. Continuing Injury in General. Most Cited Cases

In most federal causes of action, when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period, and in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.

[7] KeyCite Citing References for this Headnote

241 Limitation of Actions
241II Computation of Period of Limitation
241II(A) Accrual of Right of Action or Defense
241k58 Liabilities Created by Statute
241k58(1) k. In General. Most Cited Cases

Alleged failure of local union and its agent to refer certain members for work through hiring hall in fair manner, in retaliation for internal union activities, from 1979 or thereafter until 1986 was a continuing violation, for statute of limitations purposes, where members alleged that they made multiple requests for employment and were subject to repeated hostile acts committed by local's business agent during period of discrimination.

[8] KeyCite Citing References for this Headnote

241 Limitation of Actions
241II Computation of Period of Limitation
241II(A) Accrual of Right of Action or Defense
241k58 Liabilities Created by Statute
241k58(1) k. In General. Most Cited Cases

Despite fact that alleged discriminatory hiring hall practices by local union constituted a continuing violation for statute of limitations purposes, applicable statute of limitations began to run against each union member who withdrew from or was terminated by the union no later than date member withdrew or was terminated, unless member could show that union's business agent affirmatively acted to prevent him from regaining status as a union member.

[9] KeyCite Citing References for this Headnote

231H Labor and Employment
231HXII Labor Relations
231HXII(B) Labor Organizations
231Hk1042 Expulsion, Suspension or Other Discipline of Members
231Hk1043 k. In General. Most Cited Cases
(Formerly 232Ak106.1, 232Ak106 Labor Relations)

Union did not “discipline” members by allegedly subjecting them to discriminatory hiring hall practices in retaliation for internal union activities, so as to give rise to cause of action under section of the Labor Management Reporting and Disclosure Act precluding discipline of members for exercising rights to which they are entitled under the Act. Labor-Management Reporting and Disclosure Act of 1959, §§ 101(a)(2), 609, 29 U.S.C.A. §§ 411(a)(2), 529.

[10] KeyCite Citing References for this Headnote

170B Federal Courts
170BVIII Courts of Appeals
170BVIII(K) Scope, Standards, and Extent
170BVIII(K)7 Waiver of Error in Appellate Court
170Bk915 k. In General. Most Cited Cases

Issue was waived on appeal by failure to include it in statement of issues for appeal, and there was no reason to relieve appellants from their waiver, particularly where they did not raise the contention in district court. F.R.A.P.Rule 28(a)(1, 3), 28 U.S.C.A.; U.S.Ct. of App. 3rd Cir.Rule 21(1), par. A(d), 28 U.S.C.A.

*1285 Peter J. Deeb, James O. Castagnera (argued), Saul, Ewing, Remick & Saul, Philadelphia, Pa., for appellants.

Ira H. Weinstock, Edward M. Gleason, Jr. (argued), Ira H. Weinstock, P.C., Harrisburg, Pa., for appellees, Local 514, United Broth. of Carpenters and Joiners of America; Keystone Dist. Council, United Broth. of Carpenters and Joiners of America; and Edward Blazejewski, Sr.

Stephen C. Richman, Regina C. Hertzig (argued), Markowitz & Richman, Philadelphia, Pa., for appellees, United Broth. of Carpenters and Joiners of America, George Walish, and John Anello.

Before SLOVITER, Chief Judge FN1, BECKER and ROSENN, Circuit Judges.

FN1. Hon. Dolores K. Sloviter became Chief Judge on February 1, 1991.

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