USCA1 Opinion

April 15, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 93-2075

CHARLA SCIVALLY,
Plaintiff, Appellant,
v.
WILLIAM R. GRANEY, ET AL.,
Defendants, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Cyr and Stahl, Circuit Judges.
______________
___________________

Charla Scivally on brief pro se.

_______________
Diane M. Kottmyer, Scott C. Moriearty,
__________________ __________________
Bingham, Dana & Gould on brief for appellee.
_____________________

Deborah Kravitz and

_______________

__________________
__________________

Per Curiam.
___________
dismissal
Polaroid

of

Appellant,

her

Charla Scivally,

amended

Corporation,

complaint

Israel

against

Booth,

William

appeals the
appellees,
Graney

and

Vincent Tognarelli, to recover damages for alleged violations

of

the Racketeer

[RICO],
judgment

18
to

Influenced and

U.S.C.
Graney

1964(c),
and

Corrupt
and

Tognarelli

seeking relief for alleged violations

Organizations Act

the

grant of

on

appellant's

101(a)(2)

of the Labor-Management Reporting and Disclosure

(codified at 29 U.S.C.

411(a)(2)).
I

We affirm.

summary
claim

of Title I
Act [LMRDA]

In

1946, Polaroid

Committee

established the

[the committee]

to enhance

employees and management.

by

and funded
Polaroid

treated as a department

Polaroid paid salaries to the committee members

all

committee activities.

From

1983 to

1992,

registered the committee as a "labor organization,"

pursuant to 29

U.S.C.

Chairman of the

432.

Appellee

committee in 1989.

elected Vice Chairman the same

elected

communication between

Although its members were elected

the employees, the committee was

of Polaroid.

Polaroid Employees'

to the

committee

Appellee

year.

as a

Graney was

elected

Tognarelli was

Appellant Scivally was

representative in

February

1992.
Upon
committee

her

election,

"more

Scivally

responsive

to

sought
its

to

render

membership

and

the
less

-2-

subservient to
the

employer Polaroid."

committee from within,

Department
officers

of

Labor

[DOL]

had been elected in

After

failing to reform

Scivally filed a
asserting

that

violation of 29

claim with the

the

committee

U.S.C.

481.

In

June 1992,

manner

of

the DOL

electing

Thereupon, Booth,
of Polaroid,
and Tognarelli

made preliminary

the committee

findings that

officers

the President and Chief

announced the committee was

in turn

was

Executive Officer

Upon receipt

of the report,

its investigation and dismissed

ground

there

was no

longer

Graney

report" notifying

the DOL that the committee has been dissolved.

402.5.

improper.

dissolved.

filed a "terminal

See 29 C.F.R.
___

the DOL discontinued

Scivally's complaint on
an entity

Secretary's jurisdiction to investigate.

the

falling

the

within the

Scivally filed her

complaint in the district court on July 9, 1992.

II
Scivally's RICO claims are predicated on her

allegation

that Polaroid and Booth acted illegally by paying "bribes" in

the form of salaries and other payments to the members of the
committee, in violation of

29 U.S.C.

that Graney and Tognarelli

illegally accepted the bribes, in

violation

of

29

U.S.C.

186(b).1

186(a).

Since

She alleges

the payments

____________________
1.

Section 186(a)

provides, inter alia, that "it shall be

_____ ____
unlawful for any employer . . . to pay . . . any money . .
.(3) to any employee or group or committee of employees . . .
for the purpose of causing such employees . . . to influence
any other employees in the exercise of the right to organize
-3-

occurred over
racketeering
injuries:

several years, appellant alleges

activity.

(1) lost

She

wages and

asserts

five

benefits the

a pattern of
categories

of

committee would

have negotiated if it had been free from employer domination;

(2) financial loss from an

employee stock option plan [ESOP]

in which she would not have participated if the committee had

not been employer

dominated; (3) lost opportunity to run for

office and vote in union

exercise her rights
the

as a member of a union

LMRDA; and (5) the

representative.

elections; (4) lost opportunity

loss of her

The district

to

under Title I of

position as a committee

court dismissed all the counts

for lack of standing.

In order

to establish standing under

must demonstrate that

property" by

the injury was

activity, Holmes
______

Corp., 112
____

h[er] business or

the alleged racketeering activity,

1964(c), and that

illegal

she was "injured in

RICO, a plaintiff

S.Ct. 1311,

requisite proximate

18 U.S.C.

proximately caused by

the

v. Securities Investor Protection

_______________________________
1316-22 (1992).

cause, a RICO plaintiff

To establish

the

must show "some

direct relation between the injury asserted and the injurious

conduct."

Id. at 1318.
__

Since Scivally has failed to allege

____________________
and bargain collectively through representatives of their own
choosing; or (4) to any officer or employee of a labor
organization . . . with intent to influence him in respect to
any of his actions, decisions, or duties as a representative
of employees or as such officer or employee of such labor
organization."
Section 186(b) makes it unlawful to accept
any payment prohibited by subsection (a).
-4-

sufficient facts
caused

(or in

to show that her

some

cases caused

injuries were proximately

at

all) by

the

alleged

illegal activity of appellees, we affirm the dismissal of her

RICO complaints.
Scivally's complaint fails to allege sufficient facts to
establish

that

proximate

cause of any loss of wages and/or benefits to her.

Her

appellees'

assumption that, if

pattern

of

the committee had

bribery

benefit package than

the

not existed, the

employees would have established an independent

and that this union

was

labor union,

would have negotiated a better

the employees in fact obtained,

wage and
is too

indirect and speculative to satisfy the standard of proximate

cause.

See, e.g.,
___ ___

Associated General Contractors, Inc. v.

____________________________________

California State Council of Carpenters,

________________________________________
(1983)

(plaintiff

speculative
the

injuries

were

519, 542

indirect

and

does not have standing to sue under section 4 of

Clayton

Act)

standards);
require

whose

459 U.S.

(applying

Holmes, 112
______

showing

of

Contractors
___________

"applies

Scivally's

alternate

traditional

proximate

at 1317

(reasoning used

S.Ct.

proximate cause
just

as

in

to

Associated General
__________________

readily

contention--that

cause

to

1964(c)").

the employees

would

have obtained better wages if no employee organization of any

sort had existed--is similarly indirect and speculative.
Scivally
wages

also alleges

that

and benefits by Polaroid's

she was

"cheated" out

adoption of an

ESOP.

of
The

-5-

ESOP was established as a defense

attempt and its propriety
Court

of

Chancery.

against a hostile takeover

was challenged before the Delaware

Shamrock Holdings, Inc. v.

________________________

Polaroid
________

Corp.,
____

559 A.2d 257 (Del. Ch. 1989).

Scivally contends that

Polaroid used its control over the committee to induce Graney

and Tognarelli
about

to testify falsely before

employee

sentiment

testimony led the

specifically

toward

court to

that Graney

that Polaroid

the Delaware court

the ESOP

and

approve the ESOP.

and

that
She

Tognarelli falsely

employees would work more

this

alleges
testified

productively if the

ESOP were adopted.

The

record

belies

Scivally's

claim.

First,

testimony of Graney and Tognarelli was only a small

of

the

fraction

the evidence on which the Delaware court relied in making

its findings.
findings

court

transcript,
from the

Id. at 259 (in

__
drew

more than

"from
500

making its summary of factual

over

3,000

exhibits and

trial

Moreover, the court

would increase productivity

but

only that it would not lead to "decreased productivity."

Id.
__

at 272.

that the ESOP

of

extensive excerpts

depositions of 34 witnesses").

did not find

pages

Given these undisputed facts,

Scivally cannot show

that the allegedly perjured testimony was the proximate cause

for

the

court's

failure

to

set

Associated General Contractors,

________________________________
alleged

injuries

may

have

been

-6-

aside
459

the

ESOP.

See
___

U.S.

at

542

(since

produced

by

independent

factors, plaintiff has not shown they were proximately caused

by defendant's acts).
Scivally alleges

that the other

stem from the dissolution

dissolution
racketeering

marked

injuries she

of the committee.

the

cessation

activity,

any

of

injury

suffered

Insofar

appellees'
suffered

as the
alleged

from

the

dissolution was not caused by racketeering activity.

Scivally, however,
itself

could

also

not have

alleges that

occurred

but

for the

activity of appellees Booth, Graney and

this were so, appellant

the

dissolution
racketeering

Tognarelli.

cannot show that she was

Even if

injured in

her business or property by the dissolution of the committee.

According to

appellant's allegations, the committee

several years been funded

U.S.C.

186(a)

supported by

&

(b).

had for

by the company in violation

Since

the

committee

the very racketeering activity

had

of 29
been

which forms the

predicate acts of appellant's RICO complaint, the property to

which Scivally alleges
the

committee--would

racketeering activity.
which a

injury--her rights to
not

have existed

participate in

absent

the illegal

"Where, as here, the only property to

plaintiff alleges injury is

an expectation interest

that

would

not

violation,

have

it would

existed

but

defy logic

for

the

alleged

to conclude

RICO

the [causation

-7-

requisite

to confer

RICO

standing] exists."2

Heinold
_______

v.

Perlstein, 651 F. Supp. 1410, 1412 (E.D. Pa. 1987) (plaintiff

_________
who

entered

activity of

into

contract

because

defendant cannot

of

recover

allegedly

for injury

illegal
sustained

because he lost the benefit of the bargain).

III
Scivally

alleges that

violated her right to free

29

U.S.C.

without

appellees Graney

speech and assembly, pursuant

411(a)(2),3 when

consulting

its

and Tognarelli

they dissolved

membership.

The

to

the committee
district

court

granted summary judgment to defendants.

Scivally cannot prevail on her
she

cannot

show

that

the

411(a)(2) claim because

dissolution

of

the

committee

interfered with any

associate

with

Scivally

alleges

right she possessed to

other

members

that

the

of

committee

speak freely and

labor
as

organization.

it

existed

was

____________________
2. Similarly, appellant suffered no cognizable injury in
being deprived of her rights to participate in an independent
labor organization prior to the dissolution of the committee.
On the one hand, absent the alleged racketeering activity,
the committee would not have existed.
On the other,
appellant has alleged no facts which would support the
conclusion that but for Polaroid's establishment of the
committee, Polaroid employees would have established an
independent labor union.
3.

According to 29 U.S.C.

411(a)(2):

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 . . .
-8-

employer

dominated.

organization is an
U.S.C.

domination

of

unfair labor practice in violation

158(a)(2).

the National
dominated

Employer

of 29

Moreover, it has long been the policy of

Labor Relations

union must

labor

be

Board [NLRB] that

disestablished.4

See
___

an employer
Carpenter
_________

Steel Co., 21 LLRM 1232, 1234 (1948)

________
employer's unfair

("Where we find that an

labor practices have been

to constitute domination of

so extensive as

the organization, we shall order

its disestablishment . . . ") (stating NLRB policy); N.L.R.B.

_______
v.

Northeastern Univ., 601

__________________

F.2d 1208,

1215 n.7

(1st Cir.

1979) ("the Board applies the theory that once domination has
been shown, no remedy
ever be adequate").
committee be

short of complete disestablishment can

While not necessarily requiring that the

dissolved, an order to

disestablish would have

required that Polaroid "cease to recognize [the committee] as

the collective bargaining representative of [its] employees,"
Swift & Co.
__________

v. N.L.R.B., 106 F.2d

_______

and almost certainly would

87, 95 (10th Cir.

1939),

have prevented the committee from

ever being certified by the NLRB, see N.L.R.B. v. United Mine

___ _______
___________
Workers, 355
_______
"Board usually

U.S. 453,

458 (1958) (upon

orders the

finding domination

complete disestablishment

of the

union so that it can never be certified by the Board again").

In other words, upon disestablishment, the committee would no
____________________
4. Scivally concedes that, if a complaint of employer
domination had been brought before the NLRB, the NLRB would
have ordered the committee disestablished.
-9-

longer have been a "labor organization" within the meaning of

29 U.S.C.

402(i) & (j).5

411(a)(2), which
dissolution,

Scivally

belong

organization."

However, the rights protected by

only

have been

to

to cure

411(a)(2).
have

of

the

"labor

and Tognarelli had not dissolved

disestablishment would have

said

members

the disestablishment

necessary

had under

to

violated by

Therefore, on the basis of Scivally's own

allegations, even if Graney

the committee,

alleges were

an

of the

committee would

unfair practice

and

that

extinguished any rights Scivally

Since Graney and Tognarelli cannot be

violated

right

extinguished regardless of whether

which

would

have

been

or not they dissolved the

____________________
5. According to 29 U.S.C.
chapter 11 of Title 29:

401(i),

"Labor
organization"
organization engaged in an
commerce . . .
According to

for

the purposes

means
a
labor
industry affecting

401(j):

A labor organization shall be deemed to be

engaged in an industry affecting commerce if it-(1)

is

the

certified

representative

of

of

employees under the provisions of the National

Labor Relations Act . . . ; or
(2) although not certified, is a national or
international labor organization or a local
labor organization recognized or acting as the
representative of employees of an employer or
employers engaged in an industry affecting
commerce. . . .

-10-

committee, it was appropriate to grant them summary judgment.

Affirmed.
________

-11-