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Dzwonar v. McDevitt2/15/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 22, 2002
This appeal by defendants Local 54 of the Hotel Employees and Restaurant Employees International Union ("Local 54" or the "union") and its president, Robert McDevitt, brings before us for review a judgment on two distinct causes of action that exceeds a half million dollars.
Plaintiff Regina Dzwonar's claim was based on the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 ("CEPA"). The jury awarded her damages of $84,000, to which the trial court added prejudgment interest and an award of $168,459.37 for counsel fees and costs pursuant to N.J.S.A. 34:19-5(e).
Plaintiff Cynthia A. Burgess's claim was based on the tort of invasion of privacy. The jury awarded her compensatory damages of $250,000 and punitive damages of $50,000. The judge ordered prejudgment interest on the compensatory award.
Defendants moved for judgment, pursuant to Rule 4:40-1, when plaintiffs concluded the presentation of their evidence, and they renewed their motion, pursuant to Rule 4:40-2(b), following the verdict. The trial court denied both motions. Since the CEPA claim is preempted by the Labor Management Reporting and Disclosure Act ("LMRDA"), 28 U.S.C.A. § 401 to § 431, and the invasion of privacy was not proved, defendants' motions should have been granted. Therefore, we reverse and remand for entry of judgment for defendants.
I. DZWONAR'S CEPA CLAIM
A. Facts
Local 54 is a labor organization subject to LMRDA. It represents approximately 15,000 employees in the hotel and restaurant industries in Atlantic City and elsewhere in southern New Jersey. Robert McDevitt was elected its president in 1996. The union is governed by an Executive Board in accordance with bylaws approved by the membership. General membership meetings occur quarterly while the Executive Board meets monthly or more frequently when required. Under the bylaws, virtually all Executive Board actions are subject to subsequent approval by the general membership.
Dzwonar, a member of the Union since 1983, was elected its Recording Secretary, an unpaid office, in 1996. Later that year, she was appointed by the union, as an at-will employee, to the full-time, paid position of Arbitration Officer, which entails representation of the union at arbitration proceedings. Dzwonar and McDevitt had numerous, intense disagreements about union business. On September 19, 1997, McDevitt, with the approval of the Executive Board, discharged her from the paid position because, according to him, she had behaved inappropriately at an arbitration hearing and was engaged in numerous disputes with other union members.
In support of her CEPA claim, Dzwonar identified a few actions taken by McDevitt, the Executive Board, or both, which she viewed as precipitating violations of LMRDA. Those actions concerned hiring of a business agent, authorization of overtime pay to the controller, issuance of credit cards to certain union officers, payment of rent for a newly hired organizer, and arrears in dues owed the international. She did not contend that any of the actions were violations of the law in themselves. Instead, she asserted that the Executive Board violated the law by failing to inform and obtain approval from the general membership on those actions. Although she also asserted that the members were being denied the right to participate freely in the general meetings, there was no evidence to support that claim.
The true thrust of Dzwonar's case, as is evident from her brief, was the refusal of the Executive Board to read or distribute the minutes
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