JUDGE MITCHELL H. KAPLAN
There are some judges that in my view do cross the line. They try to make up the law as they go along. Those judges, in my view, do not honor their oath.
Judge M. LaneJudge Kaplan's dismissal of Counts II-V of my lawsuit against the Massachusetts Teachers Association had nothing at all to do with the merits of these Counts and everything to do with another corrupt judge obstructing justice under color of law to prevent my full complaint from succeeding on its merits before a constitutionally-required jury of my peers.
It is clear from Judge Kaplan's ruling that he completely ignored the rebuttal arguments and case law cited in my Complaint and Opposition to the Defendants' Motion to Dismiss and based his ruling entirely on the flawed law and case law communicated by opposing counsel.
It is also clear that Judge Kaplan wildly exaggerated the evidentiary value of previous law-defying rulings against me to justify the dismissal of the most merited Counts of my case.
The fact is that collateral estoppel did NOT apply to this case NOR did Judge Kaplan's claim that I was required to file my breach of duty of fair representation claim with the labor relations commission.
There is nothing in state or federal law that "required" me to take my case to the Labor Relations Commission prior to filing my lawsuit in superior court. Both state and federal precedent unambiguously state that the courts and the Labor Relations Commission have concurrent jurisdiction over cases concerning duty of fair representation.
Ironically, the initial case cited by the MTA to claim otherwise contradicts it. In the case of Leahy v. Local 1526, American Federation of State, County, and Municipal Employees, 399 Mass. 341, 351 (1987), the appeals court held that the judge did NOT err in declining to invoke the doctrine of primary jurisdiction as it pertained to the union's liability for breach of duty of fair representation. Citing reasons that ALL apply to my case against the MTA, the court found that:
… where there was no genuine issue as to any material fact concerning the union's liability requiring the application of the commission's expertise, where the union was not prejudiced by not having its case heard first by the commission, and where the employee had no notice prior to commencing his action that he should have first pursued his complaint with the commission… he reasonably relied on State and Federal precedent indicating that the courts had concurrent jurisdiction over cases concerning the duty of fair representation. LYNCH, J., concurring. [345-351]
concurring. [345-351]Of particular note from the above statement is the FACT that I did not receive "notice" from anyone, including the MTA, that I should first pursue the case against my union with the Labor Relations Commission. In fact, I did not receive "notice" of any kind even after I had listed the MTA as a defendant in my federal court lawsuit.
It should also be noted that there was nothing about my breach of duty of fair representation claim that required "the application of the commission's expertise". The commission's area of expertise is in collective bargaining disputes between employees and employers or employee unions and employers, NOT between employees and their own unions.
What is particularly noteworthy about the MTA's reference to the Leahy case is how the MTA took a single statement from this case out of context to deceive the court. It is true that the statement was made that "claims concerning the duty of fair representation should ordinarily be heard in the first instance by the commission." What were excluded are the "however" statements that preceded and followed this statement.
Citing Vaca v. Sipes, 386 U.S. 171, 186 (1967), Judge Lynch, writing for the Court in Leahy stated:
The United States Supreme Court has held that the courts have concurrent jurisdiction with the NLRB [National Labor Relations Board] over breaches of duty of fair representation… The duty of fair representation, the Court noted, had first been developed by the courts, and subsequently adopted by the NLRB. Id at 182-183. Availability of the courts was important, the Court continued, because of the danger that individual rights, which are subordinated to the collective interests of employees under the statute, would be unprotected by exclusive NLRB jurisdiction over arbitrary or discriminatory union action. Id. at 347.
NLRB jurisdiction over arbitrary or discriminatory union action. Id. at 347.In response to the argument that concurrent jurisdiction does not exist under Massachusetts statute, and that we should, therefore, not follow the Federal rule, the court stated:
In most cases concerning the duty of fair representation, we agree that the dispute should be presented in the first instance to the commission… [However] Because of the importance of the rights given up by individual employees in the designation of an exclusive bargaining agent, grave constitutional problems would arise if there were no duty of fair representation. See Steele v. Louisville & N.R.R.., 323 U.S. 192, 198-199 (1944).
Therefore, even if the Massachusetts statute did not provide for the duty of fair representation, the courts would infer it as a constitutional requirement. Id. Consequently, the duty is not merely a creation of the statute committed solely to the commission, and the courts have a continuing interest as the "ultimate protectors of constitutional rights." Lyons v. Labor Relations Comm'n, 397 Mass. 498, 502 (1986), quoting Chicago Teachers Local 1 v. Hudson, 475 U.S. 292, 307 n.20 (1986). Id at 347-348.
To further support its flawed argument, the MTA cited the case of Johnston v. School Committee of Watertown, 404 Mass. 23, 27 (1989), which was not a lawsuit against a union, but a lawsuit against a school committee.
In the cited case, it was found that Johnston, a former custodian in the school system, had failed to comply with the grievance procedure provided for in the collective bargaining agreement - a failure that does not apply to me. I followed my grievance procedure as outlined in my union's collective bargaining agreement to the letter - a procedure which ended, not with the Labor Relations Commission, but with the American Arbitration Association.
The cited case was not dismissed because Johnston had failed to take his breach of duty claim to the Labor Relations Commission. It was dismissed because he had failed to take his case against the employer to the commission prior to seeking relief in court. As cited by the court:
Employees may not simply disregard the grievance procedures set out in a collective labor contract and go directly to court for redress against the employer… They must initiate the grievance procedures as the contract provides and it is only when the union fails in its duty to represent them fairly in pressing the grievance… that the employees are free to try judicial remedies. Id. at 25.
This case also differs from my case as it pertains to "notice". In the cited case "notice" was given to Johnston that required him to take his case to the Labor Relation Commission - a notice that I never received from either my employer or my union.
Whatever procedural errors have been made, which are quite possible since I am not a lawyer to know every legal technicality and loophole, can be attributed to the fact that I have been forced to represent myself in court as a pro se litigant because my own union failed to provide me with legal services and arbitration costs to which I was entitled as a paying union member.
Moreover, as it pertains to Judge Kaplan's attempt to deny me justice and allow the MTA to capitalize on its own negligent failure to represent me, it should be noted that "courts shall go to particular pains to protect pro se litigants against consequences of technical errors if injustice would otherwise result." U.S. v. Sanchez, 88 F.3d 1243 (D.C.Cir. 1996).
As articulated on Wikipedia, "the duty of fair representation was originally created by judicial interpretation, rather than as an expressed statutory prohibition. Consequently, employees may sue their unions directly, without being required to first exhaust other administrative procedures that may exist… employees do not usually have to exhaust such procedures if they are suing only the union, since very few collective bargaining agreements even allow for the filing of a grievance against the union by covered employees."
The bottom line is that this corrupt judge creatively interpreted the law to prevent my lawsuit from succeeding on its merits before a jury of my peers. As certain as I am that my breach of duty case against the MTA would succeed on its merits before a jury is as certain as I was that Kaplan would defy the law to dismiss it to prevent such an outcome.
:
:
:
Listed below are links to some of the documents that were filed with Judge Kaplan or prepared by me as hearing notes.
