San Filippo v. United Broth. of Carpenters and Joiners of America

• Decision Date: 28 October 1975
• Docket Number: No. 1345,D,1345
• Citation: 525 F.2d 508
• Parties: 90 L.R.R.M. (BNA) 3017, 77 Lab.Cas. P 11,136 Joseph A. SAN FILIPPO, as President of Local 1/272, United Brotherhood of Carpenters and Joiners of America, et al., Plaintiffs-Appellants-Appellees, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Defendant-Appellee-Appellant. ocket 75--7394.
• Court: U.S. Court of Appeals — Second Circuit

Page 508

525 F.2d 508

90 L.R.R.M. (BNA) 3017, 77 Lab.Cas. P 11,136

Joseph A. SAN FILIPPO, as President of Local 1/272, United Brotherhood of Carpenters and Joiners of America et al., Plaintiffs-Appellants-Appellees, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA Defendant-Appellee-Appellant.

No. 1345, Docket 75--7394.

United States Court of Appeals Second Circuit.

Argued Aug. 12, 1975.

Decided Oct. 28, 1975.

Larry A. Stumpf, Rochester, N.Y. (Goldstein, Goldman, Kessler & Underberg, Rochester, N.Y., of counsel), for plaintiffs-appellants-appellees.

Thomas P. McMahon, Buffalo, N.Y., for defendant-appellee-appellant.

Before OAKES, VAN GRAAFEILAND and MESKILL, Circuit Judges.

MESKILL Circuit Judge:

The plaintiffs, Local No. 72 of the United Brotherhood of Carpenters and Joiners of America and two of its officers (collectively referred to as 'Local 72') appeal from the refusal of the United States District Court for the Western District of New York (Burke, J.) to grant a preliminary injunction restraining the defendant United Brotherhood of Carpenters and Joiners of America ('United Brotherhood') from effectuating the terms of a directive which, inter alia, merges a number of Rochester area locals of the United Brotherhood, including Local 72. The United Brotherhood cross-appeals from the refusal of the district court to dismiss the complaint for failure to state a cause of action. We affirm.

On April 30, 1975, Local 72 commenced an action for preliminary and permanent injunctions to prevent the United Brotherhood from executing a directive, which the local claims was issued by the General President of the United Brotherhood subsequent to a meeting on March 25, 1975. In its amended complaint, Local 72 asserted that the meeting was held without any hearings and that on April 10, 1975, the United Brotherhood, by directive, ordered the following steps to be taken, effective May 1, 1975 '(1) The District Council ¹ is ordered dissolved;

(2) carpenters' Local Unions 1/272, 1/2240, 1/2502, 1/2662 and 1/21508 are consolidated into one new carpenters' local union;

(3) industrial local unions 1/22407, 1/2231, 1/2687, and 1/22255 are consolidated into one new industrial local union;

(4) A 'pro tem' Executive Committee is established, effective immediately;

(5) a General Representative of the United Brotherhood is assigned to 'guide the newly formulated local unions and officers for a reasonable period to insure that the policies and objectives of the United Brotherhood and newly formed local unions are implemented';

(6) The business representative and the business manager of the District Council are assigned as business representatives of the new carpenters' local union under the direction of the General Representative of the United Brotherhood . . ..'

Local 72 has about 1,008 members. It claims to have assets of approximately $100,000 in its general fund and $35,000 in its contingency fund. ² It complains that the changes ordered by the United Brotherhood will dilute the voting power of the members of Local 72 at the general convention, as well as within the new consolidated local. It further alleges that the merger of the locals will impair the vested rights of the members of Local 72 in that those members will be contributing a disproportionate share of the assets of the new consolidated local. ³ Local 72 characterizes the assignment of the 'general representative' to aid the consolidated local as an imposition of a trusteeship.

The amended complaint alleges that the United Brotherhood's actions violate the union's constitution, the Constitution of the United States, and The Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. § 401, et seq.).

The United Brotherhood, in its motion to dissolve the temporary restraining order ⁴ and to dismiss the action, claimed that the court lacks personal and subject matter jurisdiction, that Local 72 failed to state a cause of action, and that it failed to exhaust its remedies within the union. Furthermore, the United Brotherhood claimed that the court should not grant a preliminary injunction because no irreparable harm would be caused to the plaintiff by any of the defendant's actions and because 'it cannot be said with clear and specific certainty that the plaintiff will prevail in this action.' On June 18, 1975, after oral argument but without a hearing, the district court refused to grant the plaintiff's motion for a preliminary injunction and denied the defendant's motion to dismiss the complaint.

I.

Local 72 argues that the failure of the district court to set forth findings of fact requires reversal. We disagree. It is regrettable that the district court failed to make the findings required by F.R.Civ.P. Rule 52(a). ⁵ The court's sole finding was 'that questions presented by the complaint are not free from doubt. Nor is there any showing that the plaintiffs will suffer irreparable injury if this court declined to grant a preliminary injunction.'

Generally, the scope of review of the grant or denial of a preliminary injunction is limited to 'whether the court abused its discretion.' United States v. Corrick, 298 U.S. 435, 437--38, 56 S.Ct. 829, 830, 80 L.Ed. 1263 (1936); Packard Instrument Co. v. ANS, Inc., 416 F.2d 943, 945 (2d Cir. 1969); Checker Motors Corporation v. Chrysler Corporation, 405 F.2d 319, 323 (2d Cir., 1969), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777. Where, as here, no hearing was held and the court's decision was based on pleadings and affidavits, the credibility of testimony is not at stake. In such a case this Court is not limited to reviewing the district court's exercise of discretion. Since the court rendered its decision on the pleadings and affidavits before it without a hearing, this Court is in as good a position as the district court to read and interpret those documents. Consequently, this Court is able to exercise its discretion and to review the papers de novo. Dopp v. Franklin National Bank, 461 F.2d 873, 879 (2d Cir., 1972); See Orvis v. Higgins, 180 F.2d 537, 539 (2d Cir., 1950), cert. denied, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595.

This Court spelled out the requirements for a preliminary injunction in Checker Motors Corporation v. Chrysler Corporation, supra, 405 F.2d at 323:

'The purpose of a preliminary injunction is to maintain the status quo pending a final determination of the merits, Unicon Management Corp. v. Koppers Co., 366 F.2d 199, 204 (2 Cir. 1966); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2 Cir. 1953); 7 Moore's Federal Practice, $65.04, at 1625 (2d ed. 1966). It is an extraordinary remedy, and will not be granted except upon a clear showing of probable success and possible irreparable injury. Clairol, Inc. v. Gillette Co., 389 F.2d 264, 265 (2 Cir. 1968); Societe Comptoir De L'Indus. etc. v. Alexander's Department Stores, Inc., 299 F.2d 33, 35, 1 A.L.R.3d 752 (2 Cir. 1962). However, 'the burden (of showing probable success) is less where the balance of hardships tips decidedly toward the party requesting the temporary relief.' Dino De Laurentiis Cinematografica, S. p. A. v. D--150, Inc., supra. (366 F.2d 373 (2 Cir. 1966)) at 375. In such a case, the moving party may obtain a preliminary injunction if he has raised questions going to the merits so serious, substantial, and difficult as to make them a fair ground for litigation and thus for more deliberate investigation. Unicon Management Corp. v. Koppers Co., 366 F.2d 199, 205 (2 Cir. 1966); Dino De Laurentiis Cinematografica, S. p. A. v. D--150, Inc., supra; Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2 Cir. 1953).'

This standard has been elaborated and applied by this Circuit in our recent opinion in Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2d 687, 692--99 (2d Cir., 1973). Thus the standard suggested by the defendant and applied by the district court, namely 'certainty' or 'that the questions presented by the plaintiffs . . . (be) free from doubt' applies an impermissibly harsh burden on the plaintiff.

Even though the wrong standards were applied, we need not reverse. Had the district court applied the proper standards, a preliminary injunction still would not be necessary in the instant case to prevent the infliction of severe or irreparable harm upon Local 72. Here, the United Brotherhood's General President ordered a consolidation of Local 72 with its 1,008 members with four other locals with a total of 565 members. Local 72 alleges by affidavit that its assets of approximately $135,000 would be diluted and dissipated by the merger since the other parties would contribute less than $20,000. It further claims that its right to appeal to the United Brotherhood would be rendered moot, because the consolidation order would dissolve them prior to the time when the appeal could be decided by the United Brotherhood's executive committee. Local 72 fears that since its existence is terminated by the United Brotherhood's action, its administrative appeal under the union constitution would be barred and its appeal in the courts might not be considered. It also fears the dilution of its voting rights at the United Brotherhood's General Convention.

The defendant replies that '. . . the International Brotherhood of Carpenters does not intend to seize the money of Local 1/272 or of any other local.' Furthermore, contrary to plaintiff's assertions, the defendant, by the affidavit of an officer, states 'that Local Union 1/272 would have six out of ten (60%) members on the Executive Committee' which would run the consolidated local. At the hearing on appeal, counsel for the United Brotherhood stated that it will hear Local 72's appeal, even after the execution of the directive merging the locals. ⁶ Furthermore, since Local 72 commenced its suit before the United Brotherhood's action became effective, no court would accept the argument that Local 72's cause...