Schonfeld v. Raftery

• Decision Date: 16 June 1967
• Docket Number: No. 67 Civ. 1361.,67 Civ. 1361.
• Parties: Frank SCHONFELD et al., Plaintiffs, v. S. Frank RAFTERY et al., Defendants.
• Court: U.S. District Court — Southern District of New York

271 F. Supp. 128

Frank SCHONFELD et al., Plaintiffs, v. S. Frank RAFTERY et al., Defendants.

No. 67 Civ. 1361.

United States District Court S. D. New York.

June 16, 1967.

Burton H. Hall, New York City, for plaintiffs.

Barr & Peer, Washington, D. C. for defendant Brotherhood; David S. Barr, Washington, D. C., of counsel.

Michael A. Buonora, New York City, for defendant District Council No. 9; Michael A. Buonora, New York City, John L. Buonora, New York City, of counsel.

Charles Donahue, Sol., James R. Beaird, Associate Sol., Rufus W. McKinney, Atty., for United States Department of Labor, amici curiae.

FRANKEL, District Judge.

The defendant Brotherhood of Painters, Decorators and Paperhangers of America provides in its Constitution for a network of regional district councils exercising a broad range of executive and legislative power over local unions within their jurisdiction. Defendant District Council No. 9 functions in this capacity in New York City. On October 19, 1966, after a turbulent history to be outlined below, S. Frank Raftery, General President of the Brotherhood, placed the District Council under a special trusteeship, naming John Damery, one of the Brotherhood's general representatives, as Special Trustee.

On April 6, 1967, the plaintiffs, members (in most or all cases, for many years) of local unions affiliated with defendant District Council, filed this action to enjoin the continued functioning of the trusteeship, to prevent the Trustee from indefinitely postponing a scheduled election for the post of District Council Secretary-Treasurer, and for related relief. Invoking the court's jurisdiction under Sections 302 and 304 of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§ 462 and 464, and under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, they charged that the trusteeship had not been imposed for a lawful purpose, but had been "established in fact for the purposes of consolidating the power of certain corrupt union officers, of dissipating the power and resources of the Council, and of preventing the growth of competing political elements within the Council, and of preventing the rank-and-file members of local unions composing the Council from cleaning up the corrupt conditions and practices that exist in the affairs of the Council."

Within a week after bringing the suit, plaintiffs moved on lengthy and detailed affidavits for a preliminary injunction. To sketch them only briefly here, the affidavits made, and documented, allegations that there had been long years of corruption in the District Council; a long tenure of tyrannical repression by the Council's Secretary-Treasurer, Martin Rarback; management of the Council's affairs over many years for the personal interests of Rarback and his allies at the expense of the working membership; and a steady pattern of indifference or collusion by the Brotherhood despite numerous appeals by dissident individual members. The trusteeship had been imposed, plaintiffs asserted, only after Rarback had been indicted in New York the day before for bribery and collusion of the kind alleged here. Furthermore, plaintiffs undertook to show, the Trustee had done nothing to correct the evils in the District Council's affairs or to investigate the widespread charges of corruption and autocratic rule by its officers. Instead, it was charged, while he had suspended all the officers upon assuming the trusteeship, he had re-installed all of them except Rarback immediately, and had named Rarback shortly afterwards to a post of power and importance. It was alleged, in sum, that the trusteeship amounted to a "front" or "cover" for retaining control by the discredited —or at least seriously suspect— Rarback regime.

In a long opposing affidavit by the Trustee and a briefer one (incorporating the Trustee's) by General President Raftery, defendants denied stoutly that the trusteeship was anything but a good-faith and lawful measure to repair the parlous condition of the District Council. The Trustee reported a series of achievements during his tenure—revision of Council by-laws, an educational program, revitalized organizing efforts, a new (and impartial) Council newsletter, among other things. He swore to his own good faith and that of the Brotherhood in installing him. But the opposing affidavits left wholly or partly unanswered questions of a serious nature. What, if anything, had the Trustee done about the alleged problems of corruption? What investigation, if any, had he made before reinstating all the members of Rarback's administration other than Rarback himself? What had led to the new role of Rarback and how important was that role? How did it happen that after years of inaction, the indictment of Rarback had led to the instantaneous imposition of the trusteeship? To what extent had the procedures required by law been followed in declaring and continuing the trusteeship?

These and other unanswered questions to be noticed below posed issues of substance. It became clear that an evidentiary hearing would be required, and the court ordered one. With the acquiescence of the parties, the court invited the Secretary of Labor, through his Solicitor, to appear as amicus curiae. The invitation was accepted. Counsel for the Secretary attended the hearing, extending over seven court days, supplied some pertinent documentation, and have filed a post-hearing brief, for which the court is grateful although the Department's ultimate submission in favor of defendants is rejected.¹

Since it was apparent that the ruling on the motion for a preliminary injunction was likely to be in effect the ultimate decision in the case, the court proposed for discussion that we proceed directly to the final adjudication in accordance with Fed.R.Civ.P., Rule 65(a) (2). Plaintiffs favored that course. Defendants opposed it. Recognizing its power under the cited Rule to order a final hearing on the merits, the court perceived no prospect of substantial gain in doing so over defendants' objection. Accordingly, whether or not it makes a real difference, the hearing was held solely for the purpose of the preliminary injunction application. Now, having studied the extensive record of factual and legal submissions, the court reaches the following findings, conclusions, and decision.

FINDINGS OF FACT

1. The pre-trusteeship situation

Since at least 1960, probably for a number of years before that, and up to the imposition of the trusteeship on October 19, 1966 (to stop there for the moment), District Council No. 9 was repressively governed, and the interests of its constituent union membership poorly served and frequently betrayed, under the dominance of Martin Rarback, its Secretary-Treasurer and chief officer,² and those allied with him in positions of power. Democratic procedures were ignored. The Council bylaws, of little moment to a dictatorial regime, were in a state of scattered disarray. Dissident members, seeking a voice in the management of Council affairs or an opportunity to vie for Rarback's office, were fought ruthlessly with all the power available to entrenched officials.

The Council's publication, the "District Council 9 News," served as Rarback's personal organ and propaganda outlet. It was used to vilify his opponents and trumpet his virtues at all (especially election) times. Opposition views were not seen in it except as Rarback purported to state, in order to refute, them. Appeals to the Brotherhood on this, as on many other subjects, were constant, and uniformly futile.

From 1953 on there was only a single election year, 1961, in which a candidate (plaintiff Schonfeld) managed to run the nomination gauntlet and stand as a candidate against Rarback. In order to be a candidate in the District Council election, an aspirant must win nomination by a vote in his local union. Among the devices employed by the Rarback forces to perpetuate his dynasty was the practice of having people in his camp compete for the nomination in their local unions. When such people obtained the nomination, as they did from time to time, they would obligingly announce that they were declining to run against the esteemed incumbent. Another Rarback stratagem was the use of transfers from local to local on the eve of elections to organize a favorable electorate.

When Rarback did for once face opposition, in the 1961 election, his opponent, Schonfeld, was confronted with a long, and probably critical, delay in obtaining the mailing list so that he might distribute campaign literature. Finally, eight days before the election, he was permitted to go to the offices of the Painting Industry Insurance Fund and copy the list there by hand. Not surprisingly, Rarback's mailings, in envelopes typed probably (though not certainly) by Council personnel,³ were sent to the membership before Schonfeld's.

Following the 1961 vote, and on numerous other occasions, Schonfeld and others dissidents appealed to the Brotherhood for correction or discipline based upon election and other irregularities. With rare and trivial exceptions, the appeals were rejected.

The aftermath of the 1961 election presented one of the repeated occasions when Rarback and his colleagues used the machinery of union discipline to wreak punishment upon dissenters. Schonfeld and some twenty of his supporters were charged with such offenses as unlawful resort to extra-union remedies and blemishing the union's good name. Denied the right of cross-examination and the right to produce witnesses (or testify) in their own behalf, they were convicted and ordered to pay substantial fines ($250 in Schonfeld's case). Appeals to the Brotherhood's General Executive Board were characteristically unavailing. On appeal to this court, as an incident of one of the numerous lawsuits members have brought to seek justice in the affairs of the District Council,⁴ Schonfeld fared better. Enjoining...