Papianni v. INTERN. ASS'N OF B., S. & OI WORKERS

• Decision Date: 19 December 1985
• Docket Number: Civ. A. No. 84-1343.
• Citation: 622 F. Supp. 1559
• Parties: Dominic PAPIANNI, James P. Kearns, Jr., Peter DiGavero, Edward Pshybshefski and Philip DiGavero, Plaintiffs, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 11, Defendants.
• Court: U.S. District Court — District of New Jersey

622 F. Supp. 1559

Dominic PAPIANNI, James P. Kearns, Jr., Peter DiGavero, Edward Pshybshefski and Philip DiGavero, Plaintiffs, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 11, Defendants.

Civ. A. No. 84-1343.

United States District Court, D. New Jersey.

December 10, 1985.

As Amended December 19, 1985.

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John A. Craner, Craner & Nelson, Mountainside, N.J., for plaintiffs.

Albert G. Kroll, Zazzali, Zazzali & Kroll, Newark, N.J., for defendants.

OPINION

SAROKIN, District Judge.

INTRODUCTION

The circumstances of this case do not reflect favorably upon the conduct of the union here involved. It has systematically denied rights and opportunities to its own members apparently to protect a favored group within its ranks. Furthermore, it has consistently and blithely ignored prior court rulings and seeks here to reargue many which have already been determined against it. It is difficult for the court and certainly for the plaintiffs to understand why a union would treat its own members in such a cavalier fashion. Rather than representing the interests of its members, this union appears to be acting against them and has thus denied qualified transfer applicants the opportunity to receive the rights and benefits of union membership to which they are clearly entitled.

This action is but one chapter in a series of lawsuits stretching over twenty years against various local affiliates of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, all generated by the locals' failure to accord transfer applicants the same rights and employment opportunities accorded to members of the local. The issue presented in this case is whether the deference due to local unions in the handling of their internal affairs prevents the court from granting relief to transfer applicants who have been forced to occupy a second class status within the local union because of practices by local officials which have no basis in the union's constitution. The court concludes that the principle of deference does not extend to that extreme.

FACTS

The facts in the record before the court, which have not been disputed in the one affidavit submitted by the defendant, are these. The five plaintiffs are all members of a local affiliate of the International Association. None of them has ever worked out of the hiring hall of the local to which he belongs, however. Rather, during the entire period of each plaintiff's association with the union, each has, with only minor exceptions, worked exclusively out of the hiring hall of the defendant, Local 11.

Pursuant to Article XXI of the International's Constitution, each plaintiff has applied to transfer into Local 11. The constitution provides that when a member wishing to transfer from one local to another properly obtains and presents a "clearance card" to the local into which he wishes to transfer, "the matter shall be referred to the Executive Committee of the local union which shall accept or reject such clearance card within the discretion of the Executive Committee". Rather than either accepting outright or rejecting the plaintiffs' transfer applications in this case, however, the Executive Committee of Local 11 informed each plaintiff that his application had been approved, but that he would be placed on an "approved transfer list". Admittance from the list would be accomplished "in the date order that ... transfer applications were filed, based however on the individual classification's sic in the trade in accordance with the needs of the industry in the Local Union's jurisdiction". Complaint, Exhibits A, C, & E (similar language in Exhibits D & E). Since the inception of the litigation, two of the plaintiffs, Peter and Philip DiGavero, have been admitted into the union, after remaining on the waiting list for five years. The remaining plaintiffs, Dominic Papainni, James Kearns and Edward Pshybyshefski, have still to be admitted after waiting five years, in the case of Papainni, and two years in the cases of Kearns and Pshybyshefski.¹

As approved transfers on the waiting list, the plaintiffs are not granted the same rights or employment opportunities as those afforded to local members. Among the rights denied them are: (1) the right to nominate candidates for election to Union office; (2) the right to vote in elections or referendums held by the Local; (3) the right to attend membership meetings; and (4) the right to participate in deliberations or votes upon business conducted at the meetings, including contract discussions and votes on the contract, even though the plaintiffs have had to work under the conditions imposed in the contract. Approved transfers are required to pay a non-membership fee in addition to a membership fee, which they presumably pay to the locals in which they are members. They do not accrue seniority credits in the local, which are used to determine, e.g., the order of layoffs on jobs.² They work an average of one quarter of the number of weeks per year that local members do, with correspondingly lower gross earnings. Plaintiffs allege in addition that, as approved transfers, they have been treated discriminatorily with regard to job referrals: they have not been sent out on jobs when requested by name, as is the practice with local members; they have had to wait their turn for a new referral after each job while local members have been skipped ahead; they are referred to short term jobs disproportionately often. They allege that, compared to local members, they are rarely appointed to be the foreman on a job, which entails a higher rate of pay. Because the union operates an exclusive hiring hall, plaintiffs essentially have no choice but to suffer this discrimination if they want to work in their trade in Local 11's jurisdiction. Defendant has not submitted any certification or affidavit to refute these claims.

On February 29, 1984, plaintiffs filed their complaint in the Superior Court of New Jersey, Chancery Division, Union County. Each plaintiff alleged that he was "entitled to be transferred into Local 11 immediately in accordance with the constitution and ritual of the International." Plaintiffs further alleged that "the actions of Local 11 in refusing to properly process the transfer of each plaintiff ... is a continuation of the prior discriminatory policy of Local 11 which is to exclude, as members, those who are not in some way `related' to existing members and to exclude those who have not been accepted through the existing apprentice program, that is, to exclude transfers." The policy was alleged to be "unreasonable, unfair and an abuse of discretion, as well as deliberately contrary to law."

Defendant duly removed the action to this court. In an opinion filed in July, 1984, this court found that it had original jurisdiction over the matter pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), because the action was one seeking relief for the violation of a labor contract, the union's constitution. The court accordingly denied a motion by plaintiffs to remand.

Thereafter, defendant filed a motion for summary judgment on the ground that plaintiffs had failed to exhaust their internal union remedies. By consent of the parties, the action was stayed pending review of the matter by the International's General Executive Board.³ The Board met on November 15, 1984, to consider the matter, and by letter dated November 21, 1984, notified each plaintiff that it had

unanimously decided to deny the appeals on procedural grounds in view of all of the circumstances surrounding the appeals, including the fact that appellants did not file timely and expeditious appeals, and in view of the fact that a decision of the General Executive Board would not terminate the litigation. The G.E.B. further decided that this decision shall not be construed as an interpretation of the Constitution with respect to the merits of the transfer policies of any local union.

Defendant's Brief, Exhibit C. In view of the Board's refusal to grant the plaintiffs relief, the matter was reopened.

Subsequently, the court considered a motion by plaintiffs to amend their complaint to allege causes of action under Section 101 of the Labor Management Reporting & Disclosure Act, (LMDRA) 29 U.S.C. § 411. The court granted the motion to amend except as to claims made that the local's hiring hall practices were discriminatory because those claims were admittedly pending in another forum as a result of a complaint filed with the National Labor Relations Board (NLRB). In its Opinion, filed February 14, 1985, granting plaintiff's motion to amend, the court found that plaintiffs' Section 101 claims were not untimely under the six month statute of limitations held applicable to such claims by the Third Circuit in Local 1397 v. United Steelworkers of America, 748 F.2d 180 (3d Cir.1984). The court found that the Section 101 violations alleged in the proposed amendments were continuing violations and that the notifications to plaintiffs that their applications for transfer had been approved, promising them membership, albeit delayed, was not an open denial of rights triggering the running of the six month limitation period.

Before the court at this time are the cross motions of the parties for summary judgment. On the merits, plaintiffs argue that the interpretation accorded to the association's constitution by the defendant in its "approved transfer list" procedure is patently unreasonable and therefore a violation of the constitution; that the quota system under which transfers are made constitutes an abuse of discretion by the local officials; and that the discriminatory treatment accorded to approved transfers on the waiting list violates the union member's "Bill of Rights" in Section 101. Defendant contends that the local's waiting list...