The case is Kazolias v. IBEW Local Union 363, decided on November 12. Five months after plaintiff filed the EEOC charge, the union's business manager, John Maraia complained about the charges. This is what he said at the union's monthly meeting:
I am tired of the 3 or 4 members trying to bring down this Local with their petty claims of workmanship on jobs we are doing. .. You will be brought up on charges. I have fought too hard for these jobs that we are getting to have a few assholes screw it up. . . . We are in terrible times - no work, anti-union sentiment - and I am fighting all of these fights and will continue. And do not be mistaken, I will fight the few members who are trying to hurt this organization. I will use everything in the CBA, Constitution and By-Laws to stop this vendetta.Is this statement relevant to show the union retaliated against plaintiff before the business manager publicly disparaged them for complaining? The Court of Appeals (Leval, Lynch and Droney) says yes.
"Maraia’s remarks constituted evidence that, at the time he spoke, he (and consequently the union) harbored retaliatory animus against Plaintiffs for their complaints. A jury could reasonably infer that Maraia’s resentment against Kazolias and Roxby was not born at the instant he expressed it, but had been brewing ever since they brought their age discrimination charges in September 2008." Normally, the employer loses a retaliation case because a decisionmaker makes retaliatory comments prior to the adverse actions. This case tells us that a decisionmaker's hostile comments about plaintiff's protected complaints constitute evidence of retaliatory intent even if they are made after the retaliatory acts are taken against plaintiff. This case also tells us there is no shortage of ways that a hiring official or decisionmaker can betray his retaliatory intent. Calling the plaintiffs "assholes" is one way to get sued for retaliation.
Plaintiffs also sue the union for the violation of union free speech rules. The Labor-Management Labor and Disclosure Act does contain a free speech provision: "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." This is not enough for plaintiffs to win.
While plaintiffs claim the union violated this provision by denying them job referrals in retaliation for their NLRB and EEOC charges, plaintiffs' speech is not protected under the LMRDA, which was enacted "to encourage democratic self-governance in unions" and "to correct widespread abuses of power and instances of corruption by union officials." The Court of Appeals has interpreted this law "to protect speech that concerns union governance and union affairs." After adopting the reasoning from other Circuit courts that hold that the LMRDA's protections "are limited to speech of significant concern to the union membership as a whole," the Second Circuit says plaintiffs have no speech claim because they "sought only redress for their personal grievances and made no attempt to publicize their grievances among the membership in an effort to change union practices." Instead, plaintiffs "sought only individualized personal relief. ... The LMRDA was designed to protect the integrity of union governance, not to turn 'nearly every criticism by a union member regarding an official's conduct ... into a federal case."