Brotherhood of Painters v. Brotherhood of Painters, LU 127

• Decision Date: 30 November 1966
• Docket Number: No. 45937.,45937.
• Citation: 264 F. Supp. 301
• Parties: BROTHERHOOD OF PAINTERS, DECORATORS, AND PAPERHANGERS OF AMERICA, AFL-CIO, an unincorporated International Labor Organization, Plaintiff, v. BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO, LOCAL UNION 127, Oakland, California, an unincorporated Labor Organization et al., Defendants.
• Court: U.S. District Court — Northern District of California

264 F. Supp. 301

BROTHERHOOD OF PAINTERS, DECORATORS, AND PAPERHANGERS OF AMERICA, AFL-CIO, an unincorporated International Labor Organization, Plaintiff, v. BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO, LOCAL UNION 127, Oakland, California, an unincorporated Labor Organization et al., Defendants.

No. 45937.

United States District Court N. D. California.

November 30, 1966.

John J. Dunn, Oakland, Cal., of Brundage & Hackler, Los Angeles, Cal., for plaintiff.

Francis J. McTernan, of Garry, Dreyfus & McTernan, San Francisco, Cal., for defendants.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

Plaintiff, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (hereinafter referred to as the International), seeks a preliminary injunction to make effective a trusteeship imposed on three of its local unions on October 5, 1966, under the provisions of Section 47 of its International Constitution.

The trusteeships were imposed upon the ground that the defendants (local unions 127 (Oakland), 560 (San Pablo) and 1178 (Hayward)), were delinquent in payment of a certain special per capita tax voted by District Council No. 16 under the provisions of Article VI, Sec. 6 (d) of the District Council's By-laws.

Defendants oppose the application for preliminary injunction on the grounds: (1) that this Court does not have jurisdiction of the subject matter; (2) that the purported trusteeships are illegal by reason of the trusteeship provisions of the Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act), 73 Stat. 530-532 (1959) 29 U.S.C.A. §§ 461-466 (1964); (3) that plaintiff is not entitled to preliminary injunctive relief, and (4) that District Council No. 16 is an indispensable party to this action.

It appears from the record herein that prior to July 1, 1966, the dues payable to the locals by their members were to be not less than $8.85 per month (District Council By-laws, Art. VI, Sec. 6(a).

It also appears from the record that the defendant locals were required to pay to the District Council a general per capita tax of 20 cents per member per month (District Council By-laws, Art. VI, Sec. 4) and an additional special per capita tax of $3.25 per member per month for the Business Representative's Salary and Expense Fund (District Council By-laws, Art. VI, Sec. 5).

Article VI, Sec. 6(d) of the District Council By-laws, adopted May 9, 1956, provided that regular monthly dues for members of local unions shall be increased under a fixed formula whenever the members receive a wage increase and that District Council No. 16 shall determine what portion of any dues increase would remain with the locals and what portion would go to the District Council unless the District Council waives all or part of a dues raise.

Having in mind that a wage increase for members of the locals would take effect on July 1, 1965, with a resultant automatic dues increase one year later from $8.85 per month to $10.60 per month, District Council No. 16, by action taken in January and April, 1966, applying its By-laws, Art. VI, Sec. 6(d), purported to allocate from the resulting $1.75 dues increase the sum of 85 cents to the locals and the sum of 90 cents to the District Council, this latter portion to be in the form of an increase in the special per capita tax for the Business Representative's Salary and Expense Fund from $3.25 to $4.15, effective July 1, 1966.

The defendant local unions indicated that they would not recognize either their $1.75 members' dues increase or the 90 cent increase in the special per capita tax from the local to the District Council contending, among other things, that the District Council had theretofore misused the Business Representative Expense and Salary Fund by diverting it to other purposes and that the dues increase violated Section 101 of the Labor-Management Reporting and Disclosure Act, 73 Stat. 522 (1959), 29 U.S.C. § 411 (1964). The defendant locals also commenced a movement to bring about disaffiliation from District Council 16 with a view to the creation of a single Bay Area District Council.

In March 1966, the defendant locals ceased payment of their general and special per capita taxes to District Council 16, but in July 1966, they paid such taxes through May, 1966. Section 3 of the District Council's By-laws permits locals to be up to three months late in per capita taxes without penalty.

In May 1966, two of the defendant locals voted to disaffiliate with District Council No. 16 and later (in November, 1966) the third defendant local voted to diaffiliate.

Meanwhile, on April 15, 1966, Dow Wilson, Secretary of Local Union No. 4, San Francisco, was murdered and shortly thereafter on May 7, 1966, Lloyd Green, Secretary of defendant local Union 1178, was murdered.

In June, 1966, defendant locals and certain members thereof, commenced actions in this Court (Civil Nos. 45283 and 45294) to enjoin District Council No. 16 from requiring the members of the locals to pay dues in excess of $8.85 per month and from requiring the locals to pay a special per capita tax to the District Council in excess of $3.25 per month. Preliminary injunction was denied but these cases are still pending.

In August, 1966, the defendant locals tendered to District Council No. 16 all general per capita taxes (20 cents per member per month) due through July, 1966 and all of the special per capita taxes ($3.25 per member per month) through June, 1966. The checks, however, were returned by the District Council.

Later, in October, the defendant locals made a further tender of all general per capita taxes due to that date and all special per capita taxes then due at the old rate of $3.25 per month without prejudice, however, to the claim of District Council No. 16 that an additional 90 cents had become due on this special per capita tax since July 1, 1966. That tender was refused but it was renewed by defendant locals at the hearing on this pending application.

These tenders, if accepted by District Council No. 16 or by plaintiff herein, would have amounted to about 82% of the delinquency claimed at the date of the tenders.

In June, 1966, the Executive Board of plaintiff International directed the defendant locals to pay up their obligations to the District Council. Thereafter, on June 27, 1966, the President of plaintiff International advised the locals that their failure to pay violated the various sections of the International Constitution and of the By-laws of the District Council and ordered hearings set for July 18, 19, 20, to determine whether trusteeships should be imposed. These hearings were postponed pending an opportunity for the locals to be heard at the meeting of the General Executive Board at Toronto, Canada, on August 24, 1966. The local unions did not appear for that hearing. Counsel for defendants states that the reason said local union officials did not appear at the Toronto hearing was a warning from the police that Ben Rasnick, Secretary-Treasurer of District Council 16, was mixed up with the murders of Dow Wilson and Lloyd Green and that they did not feel it would be safe to be in a strange city with him and possibly other individuals mixed up with the aforesaid murders. Shortly thereafter, Ben Rasnick was arrested and charged with conspiracy to commit the murders above mentioned.

Thereafter, on October 5, 1966, the President of plaintiff International, acting under Section 47 of its Constitution, imposed the trusteeships here in question.

JURISDICTION

Plaintiffs invoke jurisdiction under Section 301 of the Labor Management Relations Act, 1947 (Taft-Hartley Act) 61 Stat. 156, 29 U.S.C. § 185(a), which provides that the United States District Court has jurisdiction of suits for violation of contracts between labor organizations.

In Parks v. International Bhd. of Electrical Workers, 314 F.2d 886 (4th Cir. 1963), a suit brought by a local union against its International to compel restoration of its revoked charter, the Court held that such a suit is between labor organizations for breach of the inter-union contract within the meaning of 29 U.S.C. § 185(a).

Defendants contend, however, that 29 U.S.C. § 185(a) has been limited by the trusteeship provisions of the Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act), 73 Stat. 530-532 (1959), 29 U.S.C. §§ 461-466 (1964). 29 U.S.C. § 462 provides that trusteeships can be established and administered only in accordance with the Constitution and By-laws of the organization which has assumed trusteeship over the subordinate body and for the purpose of correcting corruption or financial malpractice, assuring the performance of collecting bargaining agreements or other duties of a bargaining representative, restoring democratic procedures or otherwise carrying out the legitimate objects of such labor organization.

29 U.S.C. § 464(a) provides certain remedies for a labor organization's violation of 29 U.S.C. §§ 462-466, i.e., (1) written complaint by any member or subordinate body of a labor organization to the Secretary of Labor, investigation by him and, upon probable cause to believe that such violation has occurred and has not been remedied, a civil action by the Secretary of Labor in any District Court of the United States for such relief (including injunction) as may be appropriate, (2) a civil action by a member or subordinate body of a labor organization in the District Court for the same kind of relief. 29 U.S.C. § 464(c) further provides that a trusteeship established by a labor organization in conformity with the procedural requirements of its Constitution and By-laws and authorized or ratified after a fair hearing either before the executive board or before such other body as may be provided in accordance with its Constitution and By-laws, shall be presumed valid for a period of eighteen months from the date of its establishment and shall not be subject to attack during...