Sertic v. Cuyahoga, Lake, Geauga & Ashtabula Cos., CDC

• Decision Date: 12 March 1970
• Docket Number: No. 19550.,19550.
• Citation: 423 F.2d 515
• Parties: John SERTIC, Julius B. Conrad, Edward P. Barberic, etc., Plaintiffs-Appellants, v. CUYAHOGA, LAKE, GEAUGA AND ASHTABULA COUNTIES CARPENTERS DISTRICT COUNCIL OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

423 F.2d 515 (1970)

John SERTIC, Julius B. Conrad, Edward P. Barberic, etc., Plaintiffs-Appellants, v. CUYAHOGA, LAKE, GEAUGA AND ASHTABULA COUNTIES CARPENTERS DISTRICT COUNCIL OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, et al., Defendants-Appellees.

No. 19550.

United States Court of Appeals, Sixth Circuit.

March 12, 1970.

Kenneth G. Weinberg, and James M. Friedman, Cleveland, Ohio, for plaintiffs-appellants; Gottfried, Ginsberg, Guren & Merritt, Cleveland, Ohio, on brief.

Jerome N. Curtis, and Marvin L. Karp, Cleveland, Ohio, for defendants-appellees; Ulmer, Berne, Laronge, Glickman & Curtis, Cleveland, Ohio, on brief.

Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.

PHILLIPS, Chief Judge.

The principal question presented on this appeal is whether a referendum resulting in an increase in dues of labor union members, where the form of ballot gave the member no opportunity to vote against a dues increase without also voting against negotiations of a wage increase, is a violation of § 411(a) (3) of the 1959 Labor Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq. This statute, sometimes called the Landrum-Griffin Act, is referred to herein as "the Act."¹

Appellants are members of the seventeen local unions in Ohio which constitute the Cuyahoga, Lake, Geauga and Ashtabula Counties Carpenters District Council of the United Brotherhood of Carpenters & Joiners of America. The District Council with its president and secretary were defendants in the District Court and are appellees herein. Plaintiffs-appellants began this suit under the Act on behalf of themselves and other members similarly situated to contest the validity of a referendum which authorized the District Council to negotiate with the employers for an increase in wages and other compensation and also provided for a wage assessment.

Appellants assert that the wage assessment of eleven cents per hour negotiated under authority of the referendum was equivalent to a dues increase of $20 per month per employee for each employee working an average 40 hour week (thereafter reduced to approximately $15 per month). It is further averred that by virtue of this assessment the total amount collected by the District Council as of the time of the trial was in excess of one million dollars, of which approximately $500,000 represented surplus funds then held and not earmarked for any Union contingent liability or expense. The complaint prayed that future collection of this assessment be enjoined and that moneys collected under the assessment be reimbursed to those members who have paid it. On appeal appellants do not ask for a distribution of all funds collected under the assessment but only for a pro rata distribution of the surplus funds not yet expended or earmarked and now held by defendants.

After six days of trial the District Court entered a delayed order granting the motion to dismiss the complaint. Plaintiffs appeal from the order of dismissal. We reverse and remand. We construe the wage assessment to constitute an increase in dues in practical effect and within the meaning of the Act.

Appellee District Council is composed of some eight thousand members. As has been the trend in recent years, more and more money has been required to operate various Union activities. The Union locals and District Councils also are required to pay dues to the International union. As a result of this need for additional funds, the District Council in 1964 sought to raise the dues of the members of the various locals. To secure the consent of the members the following ballot was utilized:

This referendum resulted in a rejection of the proposed dues increase set forth in Issue 6. On November 12, 1966, the District Council leaders met with leaders of the seventeen locals to discuss the financial conditions of the various locals and to determine a method of securing additional funds. At this meeting it was pointed out that the contracts with the various employers soon were to expire and that the Council would be negotiating for a new contract which would cover three years. It was proposed that the negotiating committee be authorized to negotiate for a total pay raise of at least $1.00 per hour in wages and that a two per cent working wage assessment be approved. It further was proposed that the negotiating committee be empowered to call a strike in support of these demands, if the committee considered it to be necessary.

Perhaps on the basis of the lesson from the defeat on the dues increase submitted in the 1964 referendum, the Council leaders submitted a ballot with only three questions.²

The three questions in the 1967 ballot were as follows:

In the 1967 referendum all three issues were approved.

Subsequent to the filing of the complaint in the present case, the District Council sent a mail ballot to each member of each local Union proposing to reduce the assessment from two per cent to one and one-half per cent. As a result of a favorable vote the assessment was reduced. Appellees contend that, even if there was any infirmity in the original referendum, this later mail ballot resulting in a reduction of the assessment constituted a ratification of the results of the two per cent assessment negotiated by authority of the original referendum.

Appellants contend that Issue One in the January 1967 referendum violated § 411(a) (3) of the Act (n. 1) in that it contained multiple questions and precluded a meaningful vote on the dues issue alone. In order to authorize the District Council to negotiate a new three year agreement with a wage increase of at least $1.00 per hour the members of necessity were compelled to vote in favor of authorizing a two per cent gross wage assessment against their wages. The voter thus was faced with a package proposition which presented a dilemma. He had no way to approve the negotiation of a wage increase without simultaneously approving the negotiation of the two per cent assessment against his wages. It was impossible for a voter to reject negotiation of the wage assessment, which would effect an increase in his dues, without also rejecting authorization for negotiation of a wage increase of at least $1.00 per hour.

Appellee Brackenridge, secretary of the District Council, was asked at the trial:

"Q. Can you tell me, Mr. Brackenridge, how it would be possible for a member to vote `Yes\' on negotiating a new agreement with a wage increase and vote `No\' on a wage assessment under the ballot that you presented the members with?

And Mr. Brackenridge answered:

"I don\'t know how you could do it."

At oral argument on this appeal both sides were asked to submit additional authorities on the use of multiple question issues in a referendum involving dues increases under the Act. Appellees submitted Brooks v. Local No. 30, 187 F.Supp. 365 (E.D.Pa.) in which an ambiguous but single question was placed on a ballot and the District Court upheld the referendum. This is a different situation from that presented here where more than one topic or subject is included in the issue. Appellants offered no decisions under the Act but submitted a number of State cases disapproving multiple question issues, such as Blaine v. City of Seattle, 62 Wash. 445, 114 P. 164; Gray v. Mount, 45 Iowa 591, 595 and Lewis v. Commissioners of Bourbon City, 12 Kan. 186.

We have not been able to find any case involving multiple question issues in a referendum covered by the Act. The Second Circuit was faced with a somewhat similar problem in Navarro v. Gannon, 385 F.2d 512 (2d Cir.). The question was the right of a local union to be free of interference from the International Union, a matter not specifically covered by the Act or prior cases. Chief Judge Lumbard said:

"This question was apparently not considered in the congressional debates leading to passage of the Bill of Rights in the LMRDA. That the legislative history of these provisions of the Act includes no mention of circumstances such as those which give rise to this case does not compel the conclusion that no protection was intended by

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