UNITED STATES DISTRICT COURT DISTRICT OF HAWAII ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Case 1:16-cv Document 1 Filed 05/19/16 Page 1 of 44 PageID #: 1 Of Counsel: TAKAHASHI and COVERT Attorneys at Law HERBERT R. TAKAHASHI # REBECCA L. COVERT # Queen Street, Room 506 Honolulu, Hawaii Telephone Number: (808) Facsimile Number: (808) rcover@hawaii.rr.com Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF HAWAII HERNANDO R. TAN v. PLAINTIFF, UNITE HERE LOCAL UNION 5; UNITE HERE; ERIC W. GILL IN HIS PERSONAL AND OFFICIAL CAPACITY; DONALD D. TAYLOR IN HIS PERSONAL AND OFFICIAL CAPACITY ( ), DEFENDANTS. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. CV- COMPLAINT, DAMAGES, INJUNCTIVE AND DECLARATORY RELIEF (1) VIOLATIONS OF LABOR MANAGEMENT REPORTING & DISCLOSURE ACT; (2) VIOLATIONS OF LABOR MANAGEMENT RELATIONS ACT; (3) BREACH OF CONTRACT; AND (4) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DEMAND FOR JURY TRIAL

2 Case 1:16-cv Document 1 Filed 05/19/16 Page 2 of 44 PageID #: 2 COMPLAINT, DAMAGES, INJUNCTIVE AND DECLARATORY RELIEF Plaintiff Hernando R. Tan alleges as follows: GENERAL ALLEGATIONS 1. Plaintiff Hernando R. Tan ( Tan ) is a member in good standing and a duty elected officer of Unite Here Local Union 5 ( Local 5 ). While serving in his capacity as President of Local 5 Plaintiff was suspended from his office without due process under Title I of the Labor Management Reporting and Disclosure Act nor compliance to provisions in the Unite Here Constitution and Local 5 Bylaws under Section 301 of the Labor Management Relations Act. 2. Said suspension was in retaliation and with unlawful intent arising from Tan s criticism of Defendant Eric W. Gill ( Gill ) and Gill s leadership of Local 5 and Tan s announced plans to run against Gill for Financial Secretary- Treasurer of Unite Here Local 5 in the June 2016 internal union election. 3. Gill and Local 5 engaged in a lengthy pattern of malicious treatment and intentionally directed toward denying Plaintiff his rights under Title I of the LMRDA. 4. Local 5 discriminated against Tan in duties imposed on him compared to other officers and even staff and engaged in other forms of retaliation, discrimination, and intimidation. 2

3 Case 1:16-cv Document 1 Filed 05/19/16 Page 3 of 44 PageID #: 3 JURISDICTION AND VENUE 5. Jurisdiction. This Court has original jurisdiction pursuant to Sections 102 of the Labor Management Reporting and Disclosure Act ( LMRDA ) (29 U.S.C. 412) for violations of the provisions of Title I of the LMRDA (29 U.S.C. 411 et seq.) and 609 of the LMRDA (29 U.S.C. 529). This Court also has original jurisdiction under section 301 of the Labor Management Relations Act ( LMRA ) (29 U.S.C. 185), as well as under 28 U.S.C as this action arises under federal laws. The Court has supplemental jurisdiction over the state law claims pursuant to Section 28 U.S.C Venue. Venue in this district is appropriate under section 102 of the LMRDA (29 U.S.C. 412) and section 301 of the LMRA (29 U.S.C. 185), as the violations of law alleged herein occurred within this judicial district and defendants, or some of them have their principle office within this judicial district, and under 28 U.S.C (b) (2), as a substantial part of the events or omissions giving rise to the claims in this action occurred in this judicial district. PARTIES A. PLAINTIFF 7. Plaintiff is a duly elected officer and member of Defendant Local 5. He is a union member as defined in 29 U.S.C. 402 (o). Plaintiff is a resident 3

4 Case 1:16-cv Document 1 Filed 05/19/16 Page 4 of 44 PageID #: 4 of Hawaii and resides within the jurisdiction of the United States District Court of the District of Hawaii. B. DEFENDANTS 8. Defendant Unite Here Local 5 ( Local 5 ) is a Hawaii domestic nonprofit corporation doing business in Hawaii and is a labor organization and collective bargaining representative within the meaning of 29 U.S.C. 102, 29 U.S.C. 185, and 29 U.S.C. 402 (i) and (j), representing employees in industries affecting commerce. Local 5 is an affiliated union of Defendant International Unite HERE. At all material times, Local 5 was an affiliate of Unite HERE and represented members performing work within the jurisdiction of Unite HERE and Local 5 in the State of Hawaii. Local 5 has its principal place of business in Honolulu, Hawaii. 9. Defendant UNITE HERE ( Unite HERE or International ) is an international labor organization and collective bargaining representative within the meaning of 29 U.S.C. 185 and 29 U.S.C. 402 (i) and (j), representing employees in industries affecting commerce. Unite HERE has approximately 125 local union affiliates, including Defendant Local 5. Unite HERE is headquartered in New York City and represents members in the judicial district of this Court. During times relevant to this complaint Unite HERE sent one or more of its employees to 4

5 Case 1:16-cv Document 1 Filed 05/19/16 Page 5 of 44 PageID #: 5 work at and/or with the Local 5 office and to guide and direct Local 5 in the operations of Local Defendant Eric W. Gill ( Gill ) is the Financial Secretary- Treasurer of Unite Here Local 5. He resides within the City and County of Honolulu. Gill is sued in his official capacity and in his personal capacity as alleged herein. Gill and Local 5 are jointly referred to as Local 5 Defendants. 11. Defendant DONALD D. Taylor ( Taylor ) is President of Defendant UNITE HERE. Taylor is sued in his official capacity and in his personal capacity as alleged herein. Taylor and Unite HERE are jointly referred to as International Defendants. FACTUAL ALLEGATIONS A. Tan and Gill Run Together on a Slate to Give New Direction to Local Tan has been a member of Local 5 in good standing since 1980 when he first became an employee of an employer signatory to a collective bargaining agreement with Local Local 5 internal union elections are held every three years to fill the top elected positions of Local 5 of President, Vice President(s), Financial Secretary-Treasurer and Executive Board members. 5

6 Case 1:16-cv Document 1 Filed 05/19/16 Page 6 of 44 PageID #: 6 a. Prior to the June 2000 local union elections Anthony Rutledge Sr. ( Rutledge Sr. ) was the Financial Secretary-Treasurer of Local 5. b. Tan and Gill were opposed to how Rutledge Sr. and his supporters ran Local 5. Tan and Gill formed a slate with other members to run against Rutledge Sr. in the June 2000 internal union election. Tan ran for President of Local 5, an elected position, and lost. Gill won in his race in 2000 for Financial Secretary-Treasurer of Local 5. Gill hired Tan as Administrative Assistant in 2000 and Tan took union leave from his Local 5 bargaining unit position at the Royal Hawaiian Hotel to fill the appointed position. c. Within a year of the June 2000 election the International placed Local 5 in a trusteeship finding a power struggle between Gill s faction and Tony Rutledge Sr. s factions had paralyzed decision-making and imperiled contract negotiations. d. In 2001 a new election was held while under the trusteeship to elect new leaders. Gill and Tan worked jointly in forming the Vision Slate and selecting members to run on the slate including themselves and Orlando Soriano for the three top officer position at Local 5. Tony Rutledge Sr. ran his slate. Gill, Soriano, and Tan won, along with 9 out of the 15 seats on the Executive Board. 6

7 Case 1:16-cv Document 1 Filed 05/19/16 Page 7 of 44 PageID #: 7 e. In June 2004 Gill and Tan worked jointly in forming the Up slate and selecting members to run on the slate. Gill won reelection as Financial Secretary-Treasurer and Tan won as President of Local 5. They ran against The R.E.A.L. Slate including Tony Rutledge Jr. who ran for Financial Secretary- Treasurer. The Up Slate won all of the elected positions in that race except for one seat on the Local 5 Executive Board. f. In each election Gill and Tan ran together on a campaign promise of honesty, transparency, financial security, giving power back to the members, no favoritism, no nepotism, membership participation in negotiations, and including members as part of the process of running Local Elections for Local 5 officers and the executive board were held every three years after June 2004, however none involved any contested races until In the elections following 2004 Tan and Gill worked jointly to form the slate and selecting members to run on the slate. In June 2013 while Tan ran unopposed for President of Local 5, Gill had opposition but was re-elected Financial Secretary- Treasurer of Local Tan s current term as President began in July His term will end upon the installation of the president elected in the upcoming June 2016 internal 7

8 Case 1:16-cv Document 1 Filed 05/19/16 Page 8 of 44 PageID #: 8 union elections who must be installed no later than two months following the election. Gill s current term as Financial Secretary-Treasurer is for the same term. B. Plaintiff and Gill Run Local 5 Through Joint Decision Making 16. After taking office in 2001, Gill and Tan would meet regularly to discuss strategy and the business of the Union and to jointly decide division of labor between them in running Local 5. a. Laura Moye, an employee of Unite HERE sent to Hawaii by the International to help Local 5 in its transition out of the trusteeship also participated in these planning meetings along with Michael Casey from Local 2, another affiliate of Unite HERE, who was sent by the International periodically to help with the transition. 17. In these strategy and planning meetings Tan, Gill, Moye, and Casey would discuss active grievances and membership concerns and the overall health of projects of Local 5. Then they would jointly decide who would be best to handle those grievances and concerns and assign that person the grievance or concerns. Tan or Gill often assigned one or the other to follow up and sometimes assigned staff members. 18. In addition to assignments coming out of these strategy and planning meetings, Tan exercised broad liberties in fulfilling his duty of membership 8

9 Case 1:16-cv Document 1 Filed 05/19/16 Page 9 of 44 PageID #: 9 services, as designated in the Local 5 Bylaws for the President. He traveled around the state meeting members, listening to issues and concerns raised by the Local 5 members, such as trust fund questions, discipline and contract interpretation, and benefits issues, and acted on those issues and concerns. a. Tan would learn of these issues and concerns during his walkthrough at the different Local 5 bargaining units as well as through telephone calls or s from members or organizers. b. Tan would take steps to pursue grievances or otherwise resolve the issues and concerns through meetings with the members, the Local 5 organizer assigned to the applicable bargaining unit, and the management of the employer, as necessary to reach a resolution. 19. As President, Tan would give verbal reports to the Executive Board of these grievances, concerns and issues being raised by members in the various bargaining units he visited and serviced. Tan has followed this execution of his membership duties as President throughout his terms as President. C. Tan Speaks Out Against Gill on Union Matters 20. By October 2012 Tan was expressing his views as President and a member of Local 5 on union matters that were contrary to Gill s views on those union matters. 9

10 Case 1:16-cv Document 1 Filed 05/19/16 Page 10 of 44 PageID #: In October 2012 Tan criticized Gill s choice of Carol Fukunaga in the race to fill a vacant councilmember position of the City and County of Honolulu. 22. In December 2013 Tan openly opposed Gill s use of a telephone poll of the Executive Board on a vote to approve or reject an incentive project at the Local 5 bargaining unit at Kaiser Permanente. Tan asserted that as President only he could request use of a telephone poll for putting to a vote matters before the Executive Board. 23. Starting around December 2013 to the present Tan began putting his President s Report in writing to the Executive Board at their monthly meetings covering membership services. These President s reports were critical of Gill s handling of members grievances and concerns, reported the members dissatisfaction in how Gill was running the union by not addressing their concerns, and/or listed other criticism of Gill s leadership as told to him by the members. His report was based on information he learned from his walkthroughs at the bargaining units and through telephone calls and s from the members. 24. In 2013 and continuing to the present Tan openly spoke out whenever he disagreed with Gill over union policies, leadership, and use of Local 5 10

11 Case 1:16-cv Document 1 Filed 05/19/16 Page 11 of 44 PageID #: 11 funds and challenged Gill s decisions in the hopes of changing Gill s leadership at Local In January and February 2014 Tan vigorously criticized Gill s plans to put a member on union leave of absence for another six months pointing out the appointment was contrary to Local 5 policy and procedures. 26. In June 2014 an election was held to elect Local 5 delegates to the Unite HERE International Convention. a. Tan and other members of Local 5 created the Member to Member Movement slate that ran candidates for the delegate seats. While Tan was automatically a delegate by virtue of his position as President, Tan helped set up the Member to Member Movement slate and openly supported the members running under that slate. b. Gill and other members ran on the Up and Up slate for the delegate seats against the Member to Member Movement slate. c. This was the first election when Tan and Gill supported different slates in the internal union elections. 27. Since June 2014 members who supported Tan and the Member to Member Movement have been discriminated and retaliated against by Local 5 and Gill. 11

12 Case 1:16-cv Document 1 Filed 05/19/16 Page 12 of 44 PageID #: 12 D. Gill Begins to Withhold Duties and to Discriminate Against Tan 28. In August 2013 Gill began to assign staff to monitor and oversee Tan s assignment at the bargaining unit at HMS Host at the Honolulu Airport. 29. In September 2013 Gill instructed Tan that he was restricted in his duties to only those assigned to him by Gill and that an International Union staff would oversee Tan s assignments. Gill directed Tan to start filing regular reports on his activities which was not required of any other officers or even staff. 30. In May 2014 when Tan requested of Local 5 staff a copy of the April 17, 2014 Allocation Meeting he was instructed that per Gill, Tan was to make all requests for information to Gill and not staff. Prior to this time period Tan had free access to the information of the Local. 31. On July 3, 2014 Susan Milton, the Executive Assistant to Gill, wrote to the Director of Human Resources at Sheraton Kauai that Tan and Adoracion Udani, one of the Local 5 members who ran on the Member to Member Movement slate in the June 2014 International delegate election, were no longer authorized by Local 5 to access the employer s premises. Gill did not inform Tan of this action. 32. By September 2014 Gill had removed Tan as a trustee of Local 5 s Health & Welfare, Pension, HARIETT and 401-k union funds without explanation. Tan had served as a trustee on these various funds since

13 Case 1:16-cv Document 1 Filed 05/19/16 Page 13 of 44 PageID #: On April 1, 2015 Gill wrote to Tan that he was to cease all membership servicing activities at any Local 5 bargaining unit not specifically authorized by Gill or not directly related to an assignment by Gill to Tan. Gill wrote this was Tan s final warning in this matter. 34. On August 31, 2015 Gill suspended Tan without pay immediately until October 1, Tan was instructed to cease and desist from any and all work activities on behalf of the union. a. Members of Local 5 petitioned Gill and Local 5 to reinstate Tan. b. On December 23, 2015 Gill wrote to members who signed the petition and in part stated, falsely and maliciously, that Tan s conduct left the union without adequate documentation that union work was performed in return for the money paid out to him and that his activities has made it impossible verify that the money paid to him was not diverted to personal use. c. Charges were never brought by Local 5 Defendants against Tan under these allegations or at any time prior to the August 31, 2015 suspension. 35. In November 2015, Gill wrote to Kyo-Ya Management Company that had Local 5 bargaining units at its properties stating that Tan was not authorized to service members at Kyo-Ya properties. On information and belief 13

14 Case 1:16-cv Document 1 Filed 05/19/16 Page 14 of 44 PageID #: 14 similar letters were sent to other employers signatory to collective bargaining agreement with Local By 2015 Gill had begun to require Tan to file reports of his daily work which was not required of any other officers or even staff. 37. On March 18, 2016 bargaining unit members at Kaiser Permanente were informed by Kaiser Permanente that Tan was not authorized by Local 5 to sit in any meetings being held between management and the member(s) at the employer s facilities. E. Defendants Actions Usurp Autonomy of Local 5 to Run the Election 38. The next internal Local 5 Union election will take place in June 2016 with nominations of candidates and determinations of eligibility of candidates to be decided in May Article 10, Section 3 of the Unite HERE Constitution provides that the Local Executive Board, or other officers as provided in the local s by-laws, shall appoint an election committee of at least three (3) members in good standing who are not candidates in the election. Only a member who is eligible to be an officer or executive board member in the local may be a member of the election committee. 40. Section 6 of Article V of the Local 5 bylaws provides for a fivemember Election Committee to take charge of Local 5 s internal union election and 14

15 Case 1:16-cv Document 1 Filed 05/19/16 Page 15 of 44 PageID #: 15 to provide safeguards to ensure a fair election. By April of the election year the President appoints three of the five members and the Senior Vice President appoints the other two members. 41. On December 11, 2015, members of Local 5 s Executive Board including Gill signed a document addressed to Taylor to request that Unite HERE s Executive Committee appoint an election committee to administer Local 5 s June 2016 internal union election. The December 11, 2015 document was executed at Local 5 s annual Christmas party, only a day before the regularly scheduled board meeting on December 12, On January 20, 2016 Taylor sent an to all officers of Local 5, in which he announced that pursuant to the December 11, 2015 request, he was appointing Enrique L. Fernandez (chair), Fr. Clete Kiley, and Wei-Ling Huber to serve as the Local 5 election committee. Until Tan received Taylor s he was unaware of the action taken by the Local 5 Executive Board on December 11, On February 17, 2016 Tan wrote to Gill, pursuant to Section 6 of Article V of the Local 5 bylaws, with his three appointments to the Election Committee. He sent copies of his appointments to Taylor and also to other officers of Unite HERE and Local 5. 15

16 Case 1:16-cv Document 1 Filed 05/19/16 Page 16 of 44 PageID #: On March 1, 2016 Tan wrote to Taylor objecting to Gill s conduct concerning the upcoming internal union election that was subverting the Unite HERE Constitution and the Local 5 Bylaws and usurping and undermining the autonomy of Local 5 members. Tan asked Taylor to instruct Gill to cease any actions that undermined the autonomy of Local 5 members and to assure that the election committee was comprised of three members appointed by Local 5 s president and two members appointed by Local 5 s Senior Vice President. 45. On March 5, 2016, Tan wrote to Gill, formally complaining that Gill was usurping and undermining Tan s authority as President of Local 5 by illegally and improperly forming the election committee. Tan attached a petition along with an explanation of the petition signed by members of Local 5 seeking to return the appointment process of the election committee to the Local 5 officers, objecting to the usurpation and undermining of Tan s authority as President. 46. On March 8, 2016 Taylor wrote to Tan upholding the International s appointment of the three-member election committee for Local 5 s internal union election. Taylor stated Tan s February 17, 2016 appointment of three members to the election committee was ineffective and would be disregarded. 47. The three-member committee as appointed by Unite HERE s Executive Committee continue to serve as the election committee. 16

17 Case 1:16-cv Document 1 Filed 05/19/16 Page 17 of 44 PageID #: 17 F. Tan Is Suspended in 2016; His Eligibility to Run Brought in Question 48. In early 2016 Tan continued to zealously provide representation through membership services as required under his duties as President of Local 5. Tan also informed Gill and two staff at Local 5 that he considered Gill s treatment of Tan retaliatory and discriminatory since Tan started to criticize Gill s leadership and to express opposing views on Gill s leadership and administration of the union. a. On January 7, 2016 Local 5 member Danny Alcon at the Sheraton Waikiki Hotel ed Gill, Tan and others at Local 5 to express his dissatisfaction with the lack of action in his grievance and asking that Tan represent him in his grievance. b. On January 14, 2016 Tan ed Gill and others at Local 5 regarding a grievance of Local 5 member Bill Rodrigues at Sheraton Waikiki Hotel and stated that Rodrigues had been calling Tan and expressing his frustrations on the lack of communications from Local 5 regarding the progress of his grievance. Tan suggested that Mr. Rodrigues be contacted immediately to mitigate the matter and offered to follow up. c. On January 30, 2016 Tan conducted the Executive Board meeting as required under his duties as President of Local 5. A raucous developed 17

18 Case 1:16-cv Document 1 Filed 05/19/16 Page 18 of 44 PageID #: 18 and at one point Tan informed Gill and executive board members that decorum would be enforced or police would be called to remove them. d. On February 10, 2016 Tan ed Gill and others at Local 5 to request a meeting with Gill to discuss recent memos he had received from Gill. Tan stated that the memos were political harassment and discriminatory designed to suppress his right to run for office against Gill. e. On February 29, 2016 Local 5 comptroller Ross Baniaga ed Tan that as president of Local 5 he would be a signer of the LM-2 report to the U.S. Department of Labor. On that date the International ed Tan and Gill that, to avoid questioning by the U.S. Department of Labor over any discrepancies in the amounts of International disbursements to the locals as shown on the LM2 report filed by the International compared to the amounts shown on the LM2 report filed by the local, the amount of the disbursements to Local 5 was attached to use in completing the Local 5 LM2 report. f. On March 2, 2016 Tan requested a copy of the LM2 he was being asked to sign stating he could not agree to sign until he had a chance to review the LM2 report. 18

19 Case 1:16-cv Document 1 Filed 05/19/16 Page 19 of 44 PageID #: 19 g. On March 10, 2016 Tan ed Gill and stated that as President of Local 5 it is his duty to report issues of the membership that require servicing and action by Gill and gave him a list of those issues as reported by the membership. 49. On March 11, 2016 Gill placed Tan on indefinite suspension without pay effective March 14, 2016 falsely accusing Tan of insubordination and failure to perform assigned work. Gill did not initiate any internal union charges against Tan in taking this action under Article XII of the Local 5 bylaws. a. Gill instructed Tan to turn in all Union property including his Union computer, airport parking card and security pass, office keys and all union documents. Loss of these items would interfere with Tan s ability to perform his duties as President. b. Gill and Local 5 prepared a flyer for distribution on or about April 15, 2016, falsely accusing Tan of certain conduct in an attempt to support the suspension, that was disparaging to Tan. 50. On February 23, 2016 the election committee appointed by the International released the nomination and election schedule for the June 2016 Local 5 election. The nomination meeting was scheduled for May 24, 2016 and the eligibility determination of nominees was scheduled for May 25,

20 Case 1:16-cv Document 1 Filed 05/19/16 Page 20 of 44 PageID #: On March 24, 2016 Tan wrote to Gill to appeal his indefinite suspension which issued without a full and fair hearing before the trial board. Tan noted that until the allegations by Gill were heard by a legally constituted trial board, he would continue to be a member in good standing and carry out his duties as President. Tan asked Gill to let him know when Gill wanted the trial board convened so the President could appoint members to the trial board, as allowed under the bylaws. 52. On April 4, 2016 when Tan had not heard back from Gill to convene the trial board to hear the charges leveled by Gill against Tan, Tan wrote to Gill with his three appointments to the trial board. He sent copies of his letter to Taylor as well as others from Unite HERE and government officials. 53. No action was taken by Defendant Unite HERE or Taylor related to Tan s plea for convening a trial board to hear Gill s charges against Tan. 54. On April 6, 2016 Gill wrote Tan that no charges had been filed against Tan. 55. On April 4, 2016 Gill wrote to Tan that the indefinite suspension would end on April 24, Tan was to report back to work and perform only the work as assigned by Gill as the Financial Secretary-Treasurer. 20

21 Case 1:16-cv Document 1 Filed 05/19/16 Page 21 of 44 PageID #: Gill did not initiate any internal union charges against Tan in taking this action under Article XII of the Local 5 bylaws. 57. On April 22, 2016 Tan wrote to Taylor with a copy to Gill and requested a remedy to the actions taken by the Local 5 Defendants against Tan for the conduct alleged herein. Tan requested that Taylor as the President of Unite HERE, countermand all of the illegal and improper actions Gill and Local 5 took against Tan and initiate the appropriate actions. No action was initiated or taken by Taylor or the International to remedy these illegal and improper actions. 58. The reprimands and suspensions issued by Gill to Tan were taken without any internal union charges being brought against Tan under Article XII of the Local 5 bylaws. FIRST CLAIM FOR RELIEF (LMRDA Title I Right of speech and assembly, free from retaliation) By Plaintiff against Local 5 Defendants by reference. 59. Paragraphs 1 through 58 are re-alleged and incorporated herein 60. Section 101 (a) (2) of the LMRDA, 29 U.S.C. 411 (a) (2). protects elected officials from retaliation for expressing their views on union matters and provides that: 21

22 Case 1:16-cv Document 1 Filed 05/19/16 Page 22 of 44 PageID #: 22 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. 61. A union official is liable and therefore subject to suit, not only if the official directly abridges a member s free speech rights and right to assembly, but if the official s conduct aids, abets, instigates or directs wrongful use of union power to deprive a member of his or her rights. 62. In May 2014 Tan openly supported candidates on the Member to Member Movement slate in opposition to Gill s Up and Up slate for international delegates. In July 2014 Local 5 Defendants took action to bar Tan and a candidate from the Member to Member Movement slate from having access to property of employers signatory to a collective bargaining agreement with Local In the months prior to August 2015 Tan was servicing bargaining unit members on Oahu and the Neighbor Islands and raising challenges to Gill s use of union leave of absences and other aspects of his administration of Local 5 and Local 5 s funds. On August 31, 2015 Gill suspended Tan. 22

23 Case 1:16-cv Document 1 Filed 05/19/16 Page 23 of 44 PageID #: Defendant Gill knew that Tan would oppose him in the June 2016 internal union election and in the months just prior to the election Gill and Local 5 imposed a series of retaliatory actions, improperly using Gill s office of Financial Secretary-Treasurer, to delegitimize Tan s candidacy and undermine Tan s candidacy. This conducted included: a. Suspending Tan indefinitely within month of the internal local election. b. Usurping Tan s authority to appoint election committee members for the internal local election c. Suspending Tan after Tan opposed the loss of Local 5 s autonomy over its internal local election. d. Creating an opportunity to contest Tan s membership in good standing for eligibility determination. 65. Plaintiff alleges that the reasons given for the suspension in 2015 and the indefinite suspension on March 11, 2016 were wholly spurious and were instigated by Local 5 Defendants in reprisal for Tan s free speech that came in the form of criticism of Defendants Local 5 and Gill leadership and financial expenditures, and Tan s candidacy to challenge Gill in the June 2016 internal union elections. 23

24 Case 1:16-cv Document 1 Filed 05/19/16 Page 24 of 44 PageID #: Plaintiff s suspension in 2015 and indefinite suspension in March 11, 2016 and the other actions alleged herein taken against Tan were in retaliation for his exercise of his right to assembly that came in the form of creating and promoting Member to Member Movement to bring change within Local 5 and to run a slate against Defendant Gill and his slate in the June 2016 internal union election to bring about that change. 67. Defendant Local 5 and Gill were motivated by a desire to intimidate Plaintiff and prevent Plaintiff from continued criticism of Gill and from him running against Gill and campaigning against Gill through the Member to Member Movement in the 2016 local union election. 68. The true reasons for Local 5 Defendants suspensions of Plaintiff from his elected office was that Plaintiff engaged in freedom of speech and assembly as guaranteed by 29 U.S.C. 411 (a) (2) and Local 5 Defendants intended the suspensions and other actions against Tan as part of a pattern of intimidation and retaliation against Plaintiff. 69. The conduct for which Plaintiff was suspended encompassed his duties as President as defined under the bylaws and as exercised in approximately twelve years in elected office as President and may not constitute a basis on which to suspend Plaintiff. 24

25 Case 1:16-cv Document 1 Filed 05/19/16 Page 25 of 44 PageID #: The suspensions of Tan as President of Local 5 and other actions taken by Defendants Local 5 and Gill infringed on Tan s rights and privileges specified in Title I of the LMRDA in retaliation for Plaintiff exercising his protected free speech and his right to assembly guaranteed by Section 101 (a) (2) of the LMRDA, 29 U.S.C. 411 (a) (2). 71. Plaintiff was acting within the scope of his authority as a duly elected officer to carry out the mandate of prior election by the members and as a result, their rights were also infringed. 72. By the above unlawful acts of the Local 5 Defendants, Plaintiff has suffered substantial loss and damage as follows: a. Plaintiff has been defamed and union members who, plaintiff alleges on information and belief, are fearful that they will suffer the same fates as plaintiff if they continue to associate with him. b. The conduct by Gill and Local 5 set forth above was particularly abusive and involved a lengthy pattern of malicious treatment. The conduct was intentional, willful, outrageous and so extreme as to exceed all bounds usually tolerated by a civilized society, causing Plaintiff to suffer severe emotional distress. c. Plaintiff was deprived of his income as President and restricted in performing said duties as President. 25

26 Case 1:16-cv Document 1 Filed 05/19/16 Page 26 of 44 PageID #: The Local 5 Defendants actions were performed willfully and with malicious intent to injure plaintiff and deprive Plaintiff of his rights under the LMRDA. Consequently, Plaintiff requests punitive damages against all Local 5 Defendants in an amount to be determined at trial. 74. Plaintiff seeks to have the suspensions expunged and autonomy returned to Local 5 in its internal election process. Plaintiff is fearful that Local 5 Defendants will continue to interfere with him in his exercise of his Title I rights and will seek again to deprive him of his rights under the LMRDA unless they are restrained by order and injunction of this court from so doing. by reference. provides that: 75. Plaintiff has exhausted any internal union remedies. 76. Plaintiff therefore prays for relief as set forth hereinafter. SECOND CLAIM FOR RELIEF (Discrimination and Violation of Equal Rights) By Plaintiff against Local 5 Defendants 77. Paragraphs 1 through 76 are re-alleged and incorporated herein 78. Section 101 (a) (1) of the LMRDA, 29 U.S.C. 411 (a) (1) Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend 26

27 Case 1:16-cv Document 1 Filed 05/19/16 Page 27 of 44 PageID #: 27 membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws. 79. During the time period of his 2015 suspension and his 2016 indefinite suspension Plaintiff was precluded from fully performing his duties as President and from participating in the deliberations of Local Defendants Local 5 and Gill imposed the suspensions to put at risk Tan s eligibility to run for office against Gill in the June 2016 internal union election. 81. Defendants Local 5 and Gill imposed the suspensions and took the other actions alleged herein to deter Tan and union members who support Tan and the Member to Member Movement from exercising their rights to nominate and to vote in the June 2016 local union election and their rights as union members to support candidates of their choosing. 82. The conduct of Defendants Local 5 and Gill was in bad faith, willful, malicious, fraudulent, outrageous and intentionally directed toward denying Plaintiff his rights under Section 101 of the LMRDA, 29 U.S.C. 411 (a) (1). 83. Defendants Gill and Local 5 engaged in an inconsistent and uneven application of equal rights to nominate and vote under Title I of the LMRDA, 29 U.S.C. 411 (a). 27

28 Case 1:16-cv Document 1 Filed 05/19/16 Page 28 of 44 PageID #: Defendant Gill restricted or limited Tan unlike any other officer or even staff in violation of Tan s equal rights. by reference. provides that 85. Plaintiff has exhausted any internal union remedies. 86. Plaintiff prays for relief as set forth hereinafter. THIRD CLAIM FOR RELIEF (LMRDA Title I Due Process Violations) By Plaintiff against all Defendants 87. Paragraphs 1 through 86 are re-alleged and incorporated herein 88. Section 101 (a) (5) of the LMRDA, 29 U.S.C. 411 (a) (5) 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. 89. Section 609 of the LMRDA, 29 U.S.C. 529 provides that It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter. The provisions of section 412 of this title shall be applicable in the enforcement of this section 28

29 Case 1:16-cv Document 1 Filed 05/19/16 Page 29 of 44 PageID #: The August 31, 2015 suspension and the March 11, 2016 indefinite suspension of Tan improperly removed him from his elected office and was an improper discipline imposed by Defendants Local 5 and Gill. 91. Defendants Local 5 and Gill have violated Plaintiff s rights under Sections 101 and 609 of the LMRDA by failing to bring specific charges against him and by failing to provide him with a fair hearing on those charges as required by 29 U.S.C. 411 (a) (5). 92. By suspending Plaintiff without bringing charges, Defendants Local 5 and Gill have violated Plaintiff s due process rights under Section 101 of the LMRDA by failing to give Plaintiff the opportunity to prepare his defense and present witnesses and evidence to be heard by a trial board under the Unite HERE Constitution and Bylaws of Local Tan is perceived by members as the symbolic and actual leader of the Member to Member Movement and therefore the effect of the 2015 suspension and the 2016 indefinite suspension without due process was not limited to Tan but to the membership. 94. Defendants conduct was to chill, discourage, and repress the rights of the Local 5 members to engage in an open and free election. Tan s indefinite suspension without due process directly and indirectly affected the members who 29

30 Case 1:16-cv Document 1 Filed 05/19/16 Page 30 of 44 PageID #: 30 viewed the indefinite suspension without due process and restrictions on Tan s authority as the duly elected President as intimidation and created a sense of hopelessness in bringing about change in Local 5 through a fair internal union election. The denial of the due process to Plaintiff was a purposeful action by Defendants Local 5 and Gill to suppress dissent within Local 5, deter membership participation in the election process, deprive the members of a free and open election, and infringe on the members rights. 95. The 2015 suspension and the 2016 indefinite suspension of Plaintiff for performing his role as President of Local 5, that included representing the general membership to the union leadership, was taken without affording him due process so as to be interpreted by the members as a direct message to them to cease raising any challenges to the Gill leadership and had a chilling effect. 96. On information and belief, Defendants Unite HERE and Taylor knew of the 2016 indefinite suspension of Tan from his position as president and Tan s plea that he was entitled to a trial before the trial board on the charges alleged against him by Defendant Gill and took no action to enforce the provisions in the Constitution and the Bylaws. 97. Plaintiff has exhausted any internal union remedies. 30

31 Case 1:16-cv Document 1 Filed 05/19/16 Page 31 of 44 PageID #: Plaintiff alleges that the action of all defendants in refusing to furnish him with charges against him and in imposing the suspensions without the matter heard before the trial board, was in direct violation of Plaintiff s rights under the provision of Section 101 (a) (5) of the LMRDA, 29 U.S.C. 411 (a) (5), and Section 609 of the LMRDA, 29 U.S.C Plaintiff seeks nullification of the suspensions imposed and to be made whole and prays for such other relief as set forth hereinafter. FOURTH CLAIM FOR RELIEF (Breach of Labor-Management Agreements, Section 301 of the LMRA) By Plaintiff against all Defendants (breach of contractual due process rights) by reference Paragraphs 1 through 99 are re-alleged and incorporated herein 101. Section 301 of the LMRDA, 29 U.S.C. 185 provides that (a) Venue, amount, and citizenship Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. (b) Responsibility for acts of agent; entity for purposes of suit; enforcement of money judgments Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization 31

32 Case 1:16-cv Document 1 Filed 05/19/16 Page 32 of 44 PageID #: 32 may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. (c) Jurisdiction.... (d) Service of process.... (e) Determination of question of agency For the purposes of this section, in determining whether any person is acting as an agent of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling Article XII Section 1 of the Local 5 Bylaws provides that no member shall be fined, suspended, expelled, or otherwise disciplined, except for non-payment of dues, by Local 5 or any of its officers, unless such member has been: a. Served with written specific charges; b. Given reasonable time to prepare his defense; and c. Afforded a full and fair hearing as set forth in Article 16 of the International (Unite HERE) Constitution Article XII Section 2 of the Local 5 Bylaws provides that an officer of Local 5 shall be subject to charges and to stand trial when charged with violating Local 5 bylaws or the International (Unite HERE) Constitution Article 16 Section 1 of the Unite HERE Constitution provides that an officer may be required to appear at a disciplinary hearing when charged with 32

33 Case 1:16-cv Document 1 Filed 05/19/16 Page 33 of 44 PageID #: 33 knowingly and materially violating any provisions of the Unite HERE Constitution or the bylaws of the affiliate union such as Local 5 or for gross inefficiency of an officer that substantially hinders or impairs the interests of Unite HERE or an affiliate union such as Local The Unite HERE constitution and the Local 5 bylaws are contracts between Unite HERE and Local 5. These contracts govern the relationship as between Plaintiff and the Defendants. These governing documents were intended to offer the contractual promise of stability, fair and balanced leadership, safe guards against autocratic leaders, of due process, of free elections uninhibited by retaliatory conduct, and to prevent arbitrary and capricious conduct on the part of any union officer The Unite HERE Constitution and the Local 5 Bylaws are not only a contract between the International and Local 5 but are a contractual obligation as between them and the Plaintiff as both a direct party and a third party beneficiary to the Unite HERE Constitution and the Bylaws and the contractual promises contained therein Prior to imposing the August 31, 2015 suspension and the indefinite suspension on March 11, 2016, Defendants Local 5 and Gill failed to bring 33

34 Case 1:16-cv Document 1 Filed 05/19/16 Page 34 of 44 PageID #: 34 charges against Tan for violation of Local 5 bylaws and/or Unite HERE Constitution and Tan was suspended without a hearing and ruling of violation by the trial board Defendants Local 5 and Gill imposed the suspensions to put at risk Tan s eligibility to run for office against Gill in the June 2016 internal union election. The conduct of Defendants Local 5 and Gill was in bad faith, willful, malicious, fraudulent, outrageous and intentionally directed toward denying Plaintiff his rights under Section 101 of the LMRDA On information and belief, Defendants Unite HERE and Taylor knew of the indefinite suspension of Tan from his position as president and Tan s plea that he was entitled to a trial before the trial board on the charges alleged against him by Defendant Gill and took no action to enforce the provisions in the Constitution and the Bylaws The conduct by Defendants in the factual allegations as set forth herein constitute a breach of the Constitution of Unite HERE and Bylaws of Local 5. Plaintiff s contractual rights to due process, free speech, free association and freedom from threats and intimidation, as guaranteed by contract and as embodied in the Unite HERE Constitution and the Bylaws were breached Plaintiff has exhausted any internal union remedies Plaintiff prays for relief as set forth hereinafter. 34

35 Case 1:16-cv Document 1 Filed 05/19/16 Page 35 of 44 PageID #: 35 FIFTH CLAIM FOR RELIEF (Breach of Labor-Management Agreements, Section 301 of the LMRA) By Plaintiff against all Defendants (breach Local 5 s autonomy to run its election) by reference. that: 113. Paragraphs 1 through 112 are re-alleged and incorporated herein 114. Article V Section 6 of the Local 5 Bylaws provides that: In April 2007, and every three (3) years thereafter, an Election Committee of five (5) members in good standing who are eligible to be elected as officers or Executive Board members, the majority appointed by the President and the minority appointed by the Senior Vice- President, shall take charge of the elections and provide safeguards to ensure a fair election. No candidate for office or any officer serving out his term of office shall be eligible to serve on the Election Committee. The Election Committee shall pass on the eligibility of all candidates and their decision shall be subject to appeal to the International Presidents in accordance with Article 12, Section 2 of the International Constitution. The Election Committee shall determine whether the voting shall be conducted at polling site(s) or by mail ballot or by a combination thereof The Election Committee shall determine all details of the election process in accordance with the Bylaws and the International Constitution Article 10 Section 3 of the Unite HERE Constitution provides (a) The Local Executive Board, or other officers as provided in the local s by-laws, shall appoint an election committee of at least three (3) members in good standing who are not candidates in the election. If the local executive board or other officers designated in the by-laws fail to do so, or at the request of a majority of the Executive Board of the local union, the committee may be appointed by the Executive 35

36 Case 1:16-cv Document 1 Filed 05/19/16 Page 36 of 44 PageID #: 36 that: Committee. This Article 10, Section 3(a) is subject to the provisions of Article 10, Section 3(b) of this Section. (b) Only a member who is eligible to be an officer or executive board member in the local may be a member of the committee. However, in its discretion and subject to the approval of the Executive Committee, a local may appoint to the committee persons who are members in good standing of another local or who have demonstrated their support for the objectives of UNITE HERE by their work for the trade union movement Article 23 Section 3 of the Unite HERE Constitution provides Affiliates shall have the exclusive right to conduct officer elections, except that UNITE HERE may conduct officer elections where the affiliate has failed to do so within the time required by law. UNITE HERE shall not involve itself or interfere in any affiliate election unless so requested by the affiliate On information and belief on December 11, 2015 Gill solicited members of the Executive Board to request that Taylor have Unite HERE s Executive Committee appoint an election committee to administer Local 5 s June 2016 internal union election On February 17, 2016 Tan wrote to Gill, pursuant to Section 6 of Article V of the Local 5 bylaws, with his three appointments to the Election Committee. He sent copies of his appointments to Taylor and also to other officers of Unite HERE and Local 5. 36

37 Case 1:16-cv Document 1 Filed 05/19/16 Page 37 of 44 PageID #: On March 1, 2016 Tan wrote to Taylor objecting to Gill s conduct concerning the upcoming internal union election that was subverting the Unite HERE Constitution and the Local 5 Bylaws and usurping and undermining the autonomy of Local 5 members On March 5, 2016, Tan wrote to Gill, formally complaining that Gill was usurping and undermining Tan s authority as President of Local 5 by illegally and improperly forming the election committee On March 8, 2016 Taylor wrote to Tan upholding the International s appointment of the three-member election committee for Local 5 s internal union election. Taylor stated Tan s February 17, 2016 appointment of three members to the election committee was ineffective and would be disregarded The conduct of Defendants unlawfully undermined the right of Local 5 to autonomy in running the Local 5 June 2016 internal union election. a. At no time did Local 5 fail to conduct the necessary steps required by law for the June 2016 internal union election. b. Tan never failed to appoint the members to the Election Committee. Tan never failed to satisfy any other requirements for the June 2016 internal union election. 37