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Ferger v. Local 483 of International Association of Bridge

Decided: April 4, 1967.

HAROLD E. FERGER, WILLIAM J. NORTON, PATRICK F. NORTON AND COLUMBUS P. BRITTAIN, PLAINTIFFS,
v.
LOCAL 483 OF THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO, DEFENDANT



Matthews, J.s.c.

Matthews

[94 NJSuper Page 556] Plaintiffs are members of the International Union of which defendant is a local. Harold E. Ferger is a member of Local 60, located in Syracuse, New York, having been admitted to membership therein during 1941. Patrick F. Norton and William J. Norton are members of Local 170, located in Long Island City, New York, having been admitted to membership therein during 1951. Columbus P. Brittain is a member of Local 636, located in Durham, North Carolina, having been admitted to membership therein during 1952. Plaintiffs presently reside

within the jurisdiction of defendant local, and have continued at all times mentioned herein and to the present date to secure work through defendant. Sometime during the year 1960 each of the plaintiffs sought to transfer his membership from his Local to defendant local. Defendant refused to accept each request. Resort to administrative procedures under the International constitution proved fruitless.

Plaintiffs then instituted an action in the United States District Court for the District of New Jersey under section 102 of the Labor-Management Reporting and Disclosure Act (also known as the Landrum-Griffin Act), 73 Stat. 519 et seq. (1959), 29 U.S.C.A., secs. 401 et seq.*fn1 A copy of the pleadings in that action has been filed in this cause. The matter was tried by Judge Meaney, whose opinion is reported in Ferger v. Local 483, etc., 238 F. Supp. 1016 (D.C.N.J. 1964).

After a plenary trial the District Court found that the plaintiffs were members of defendant local within the meaning of section 3(o) of the Labor-Management Reporting and Disclosure Act. See Hughes v. Local No. 11, International Ass'n of Bridge, etc., 287 F.2d 810 (3 Cir. 1961), certiorari denied 368 U.S. 829 (1961). The court rejected the several

defenses raised by defendant local and determined that plaintiffs had pursued their remedies within the union for the requisite period and that any further efforts on their part would have been futile; that the International Union was not an indispensable party to the proceedings, and that each of the plaintiffs qualified under the International constitution to seek the transfers requested.*fn2

The concluding portion of the opinion of the District Court, which is captioned "Relief," reads as follows:

"The plaintiffs request that the court enter judgment obligating the defendant Local 483 to grant them membership in defendant Local. The Hughes case, however, indicates that an order so framed may be improper. The court there points out that the right to transfer is not specifically enumerated in Section 101(a)(1) of the LMRDA. (29 U.S.C.A. ยง 411 (a)(1)). This section does guarantee to them the right 'to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings * * *.' They are entitled to all rights guaranteed to members by the LMRDA but are not entitled, under this statute, to any additional rights of members not guaranteed by this statute.

The Third Circuit therefore indicates that any order be framed in terms of the statutory language. Since plaintiffs allege a denial of their rights as guaranteed by Section 101 (a)(1), the order should be in terms of that section's language as quoted above."

Judgment on the opinion was subsequently entered,*fn3 and on appeal the Third Circuit affirmed. 342 F.2d 430 (3 Cir. 1965).

Following the entry of judgment of affirmance in the Third Circuit, plaintiffs tendered their dues books to defendant local, requesting that the desired transfers of memberships be made. Such a tender is a requirement for transfer under the provisions of the International constitution. Defendant refused to accept the books tendered, and refused to transfer the memberships as requested. Plaintiffs then moved before Judge Meaney for an order holding defendant local in contempt. He denied the application, citing Hughes v. Local 11, etc., supra.*fn4 The denial of the motion was appealed to the Third Circuit. The Circuit Court of Appeals affirmed per curiam, 356 F.2d 854 (1966). In its opinion, the Circuit reviewed the litigation and expressed not inconsiderable sympathy with the plight in which plaintiffs found themselves, but concluded that it would not grant the relief sought, stating:

"The appellee indicated at oral argument of this appeal that it would not voluntarily budge from its position despite the admittedly remedial purpose of the Landrum-Griffin Act. Though the sought for union membership is effectively spelled out in Section 101, because formal membership in the desired local is not specifically there stated, these appellants are condemned to the unbearable status of being legally deprived of their named International constitutional right to be accepted as members by appellee. Because of the present status of the key problem involved, it is impossible to consider it on its merits in this action."*fn5

It should also be noted that, pending the original appeal, the International Union had amended its constitution to permit the transfer of members between locals only if the local to which transfer was sought approved the transfer. After the adoption of the amendment, the local union moved before the Third Circuit Court of Appeals asking leave to amend its pleadings to include the constitutional amendment and to argue its appeal as if the amendment were applicable to the case then pending. The motion was denied.

After the entry of judgment in the Circuit, plaintiffs petitioned the United States Supreme Court for certiorari. The petition was denied. 384 U.S. 908, 86 S. Ct. 1346, 16 L. Ed. 2 d 361 (1966)

In their present status, as separate but equal members of defendant local, plaintiffs are permitted to enjoy all the rights specifically set forth in section 101(a)(i) of the Landrum-Griffin Act, including the right to "nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings * * *." Plaintiffs have not been permitted

to transfer their memberships on the rolls of defendant. They continue to pay their dues to their old locals, and pay work fees to defendant. They cannot run for office. Concededly, they suffer no economic loss by virtue of their hybrid status.

Six days after the denial of the petition for certiorari by the Supreme Court of the United States, plaintiffs instituted this action in the Chancery Division, seeking specific performance of the transfer provisions of the International constitution, and asking this court to order defendant local to effect transfer of their memberships on its membership list.

Plaintiffs move for summary judgment, relying on their complaint which incorporates by reference all of the proceedings taken in the federal courts. At argument, counsel for both sides handed up copies of the appendices and briefs submitted in the federal courts. These latter documents were relied on for the statement of facts which has been set forth above.

Defendant local, opposing the motion, seeks to establish the existence of factual disputes, claiming fraudulent procurement of membership by each plaintiff in his respective local. Concededly, this defense, or issue, was not raised or tried in the federal court action. In addition to the claim of fraud, defendant also alleges three bars to the relief sought by plaintiffs: First, that plaintiffs are barred by the judgment in the federal case, invoking the principle of res judicata. Second, that plaintiffs are barred by their election to sue in the federal courts and their insistence upon continuing that case to judgment, notwithstanding what is claimed to have been defendant's constant assertion that the proper proceeding was in the state courts to enforce the constitution of the International. Third, that plaintiffs are barred ...


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