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C.A.P.E. LOCAL UNION 1983, IBPAT v. INTERNATIONAL

December 11, 1984

C.A.P.E. LOCAL UNION 1983, IBPAT, AFL-CIO, OF CAPE MAY COUNTY, N.J., DEBRA PEARSON, GEORGE GRAEFF, LOUIS GINSBURG, FRANK LO MONOCO and SAMUEL C. KELLY, Plaintiffs,
v.
INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES and RALPH WILLIAMS, Defendants



The opinion of the court was delivered by: GERRY

 This is a suit brought under the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 401 et seq. The plaintiffs, a local union and several of its members, seek to vacate a trusteeship imposed by the defendant, the international union, with which the local is, or was, affiliated. One of the plaintiffs, Samuel C. Kelly, the present, or former, business manager of the local union, seeks back pay for the period commencing with the imposition of the trusteeship. The plaintiffs further seek an injunction against any further interference by the defendants, the international union and Ralph Williams, the special trustee appointed by the international, in the affairs of the local. The defendants, who claim that the trusteeship was properly imposed, have counterclaimed for an order enforcing the trusteeship and enjoining the plaintiffs from interfering with their management of the local.

 A hearing on the issuance of preliminary injunctions was held over the course of eight days: October 10, 11, 15, 16, 17, 22, 23 and 24, 1984. During the course of the proceedings, the parties agreed to advance the permanent injunction phase of the case and consolidate it with the hearing for preliminary relief.

 The following shall constitute the court's findings of fact and conclusions of law in this matter.

 FINDINGS OF FACT

 1. The plaintiffs in this action are Civil and Public Employees Local Union 1983 ("Local 1983"), Debra Pearson, George Graeff, Louis Ginsburg, Frank LoMonaco and Samuel C. Kelly.

 Local 1983 was organized by, and became affiliated with, the International Brotherhood of Painters and Allied Trades ("IBPAT") in 1972. It is a labor organization representing private and public employees in and around Cape May County, New Jersey. Its membership consists primarily of city and county employees, although it includes one bargaining unit of employees in the private sector.

 The individual plaintiffs are all members of Local 1983. George Graeff is president of the Local; Frank LoMonaco serves as a shop steward, as does Louis Ginsburg; and Samuel C. Kelly is the Business Representative of the Local and has been since the summer of 1981. Business Representative is the only full-time paid position in the Local.

 The defendants in this action are IBPAT and Ralph Williams. IBPAT is a ninety-eight year old international union having approximately 705 local union affiliates throughout the United States and Canada. Local 1983 is one of IBPAT's affiliates. Ralph Williams is the special trustee appointed by IBPAT to manage Local 1983 during the trusteeship period.

 2. As an IBPAT affiliate, Local 1983 is required to remit to IBPAT a monthly assessment of $3.25 for each of its members. This comes to a total of approximately $2,300-2,400 per month, as the Local has approximately 735 full members. The Local is not required to remit a monthly assessment for its agency shop members. The Local has approximately 180 agency shop members, whose dues are 85% of those paid by full members to the Local.

 3. On June 26, 1984, at a regular monthly meeting of the Executive Board of the Local, the Executive Board decided to recommend disaffiliation from IBPAT. All members of the Board were present, according to the minutes of the meeting (Plaintiffs' Exhibit 11). The minutes state, in part, as follows:

 
Motion by S. Kelly seconded by Freddie McCullough we decertify [sic] from IBPAT. Unanimous vote.

 It is unclear why the decision to recommend disaffiliation was made at this time. There was testimony to the effect that it was only shortly before this time that members of the Board learned from their attorneys that a disaffiliation was possible. It appears that Samuel C. Kelly was aware of this possibility at least as early as May 15, 1984, when he sent a letter to all members of the Local, informing them that one of the Local's units had decided to leave the Local and become an independent union (Defendants' Exhibit 4). Based on an August 1984 conversation between Mr. Kelly and representatives of IBPAT in Washington, D.C., in which Mr. Kelly expressed surprise that IBPAT had acted to prevent the disaffiliation move, it seems likely that the Board's action was timed to coincide with IBPAT's international convention. Such conventions occur only once every five years and are preceded by several months of preparation involving many IBPAT officials. Thus, the Executive Board may well have acted when it did because it believed that IBPAT would not be in a strong position to counter its proposed disaffiliation.

 In any event, the Executive Board recommended the change in status on June 26, 1984.

 4. It is not entirely clear why the Board took this action. The parties went to great lengths during the trial to demonstrate, respectively, that IBPAT had been unresponsive to the needs of the Local, and that IBPAT had been thoroughly helpful in meeting the needs of the Local.

 The plaintiffs took the position that IBPAT was not an appropriate international for the Local's particular employees. Local 1983 is one of only a few locals within the international whose membership consists primarily of municipal and county civil servants. The plaintiffs felt that IBPAT lacked the expertise to properly service the Local's needs.

 In or about October 1981, Kelly and George Graeff attended a three-day seminar which the international held in Washington. The purpose of this seminar was to address the special needs of public employee locals. Local 1983's representatives at this seminar testified that they found it unhelpful, since it was geared almost exclusively to the problems of federal employee unions.

 Plaintiffs' witnesses also testified that they had a difficult time getting in touch with Ralph Williams, who, in March 1982, became the IBPAT General Representative responsible, among other duties, for providing service to Local 1983. There was further testimony to the effect that IBPAT had failed to lend needed support in an organizing drive at Burdette Tomlin Hospital, with the result that the effort was unsuccessful. Additionally, testimony demonstrated dissatisfaction with IBPAT with regard to the so-called "Avalon 21" crisis, involving the firing of twenty-one members of the Local by the City of Avalon. (Apparently, these employees had refused overtime work during a snowstorm, and the City of Avalon treated this refusal as an illegal strike.) It was claimed that IBPAT failed to provide requested legal assistance or financial support during the rather extensive and costly litigation which the Local undertook on behalf of its terminated members.

 Defendant Ralph Williams testified that he never failed to respond to calls placed to him by officials of the Local, and he described several instances when his interventions were successful in resolving intralocal and labor-management difficulties. He stated, however, that during the more than two years between the time he became the Local's General Representative and the Executive Board's action, he did not receive very many requests for assistance from the Local.

 With regard to the "Avalon 21" litigation, defense witnesses stated that Local officials failed to follow procedures outlined in the IBPAT constitution for requesting financial assistance. It was conceded, however, that any formal, written request for assistance would have been refused because of the Local's delinquency in paying its monthly per capita assessments. Nonetheless, general counsel for IBPAT, Mr. Barr, apparently did review a decision made by a judge in the matter and did give his opinion on the likelihood of success on appeal. (See Defendants' Exhibit 1.)

 The evidence as to whether IBPAT vigorously worked on behalf of the Local is, therefore, inconclusive. Suffice it to say that the Local perceived IBPAT's servicing to be inadequate. *fn1"

 6. As a result of the July 1 meeting, a letter was drafted and mailed to or hand-delivered to members of the Local, including its agency shop members. This letter (Plaintiffs' Exhibit 2), dated July 2, 1984, reads:

 
TO ALL EMPLOYEES REPRESENTED BY CAPE LOCAL #1983
 
The Executive Board of CAPE Local #1983 voted on Tuesday, June 26, 1984, to recommend disaffiliation from the International Brotherhood of Painters and Allied Trades. This action must now be decided by vote of all employees represented by CAPE Local #1983. If the bargaining unit employees vote in favor of disaffiliation, representation under the current contracts will be provided by CAPE Local #1983 as an independent Union rather than as an affiliate of IBPAT. The officers, shop stewards and terms and conditions of employment will remain the same.
 
An election will be held on Friday, July 20, 1984, at the Kiwanis Club, Pacific Ave. and the Parkway, Cape May Court House, N.J., between the hours of 6:00 A.M. and 6:00 P.M. The question on the ballot will be "Should CAPE Local #1983, affiliated with the IBPAT, disaffiliate from the IBPAT and become an independent Union?" It is crucial that all employees for whom CAPE Local #1983 serves as bargaining representative should vote in this election. If you have any questions, please contact your Shop Steward or any representative of your Executive Board.

 The letter is signed by Samuel Kelly, Business Representative of the Local.

 The testimony indicates that the vast majority of the Local's members received this letter. A couple of witnesses who stated that they had not received the letter admitted that they nevertheless had notice of the election and voted.

 7. The disaffiliation vote was never discussed at any general membership meeting of the Local prior to the scheduled vote. Mr. Kelly explained that, in his experience, general membership meetings were poorly attended, and that the Executive Board felt that the membership would be better informed about the reasons for, and consequences of, disaffiliation by communication with their shop stewards. Although the stewards were provided with information at the July 1 meeting, it is not clear whether they were capable of making clear to members all the possible ramifications of a disaffiliation move.

 Mr. Kelly and others also testified that at most general membership meetings in recent years, members voiced their dissatisfaction with IBPAT, so that the reasons for disaffiliation were not unknown among the Local membership.

 8. It is clear that officials of the Local never intimated to representatives of IBPAT that unless certain complaints were remedied, there would be a disaffiliation attempt. Nor did Local officials ever inform IBPAT that an actual disaffiliation vote had been scheduled. Neither before nor after the vote was scheduled was IBPAT given an opportunity to convey to the Local members its opinions or perceptions regarding disaffiliation and the circumstances leading up to the Executive Board's decision to recommend disaffiliation.

 
(a) The General President, with or without a hearing, but after investigation, shall have the power, with the approval of the G.E.B. [General Executive Board], to appoint a Special Trustee to take immediate charge of a Local Union and its affairs for the purpose of correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of the Brotherhood.
 
. . . .
 
(g) Upon the appointment of a Special Trustee, as provided in this section, in cases where no prior hearing has been held, the General President shall notify the officers of the Local Union that a hearing will be held which will be presided over by a representative appointed by the General President, acting as hearing officer. The notice may be given by the General President, or his representative by telegram, mail or telephone and shall be given at least five (5) days prior to the time fixed for the hearing. The General President or his representative shall fix the time and place of the holding of said hearing, which shall be within thirty (30) days of the appointment of a Special Trustee. At such hearing, interested parties may be heard on the subject of continuing the Special Trusteeship. . . . The hearing officer shall, either orally or in writing, report back to the General President as to what transpired at such hearing, and the General President shall be the sole judge as to whether or not the affairs of the Local Union should continue under trusteeship.

 (Defendants' Exhibit 2.)

 10. On or about July 11, 1984, in the midst of preparations for the International convention, Robert Welch, Executive Assistant to the General President of IBPAT, received information in the form of a note from his secretary relating to an anonymous phone call concerning the scheduled disaffiliation vote. Also on or about July 11, Mr. Welch received a call from William Belles, a shop steward and member of Local 1983, who also advised Mr. Welch about the disaffiliation vote. Mr. Belles testified that he told Welch that he was concerned about collective bargaining agreements which were expiring and up for renegotiation. Following this discussion, Mr. Welch promised Belles that IBPAT would investigate the matter. Thereupon, Welch conveyed the information he had received to IBPAT General Vice President A. L. Monroe and asked Mr. Monroe to further investigate the matter. A. L. Monroe thereupon called in his son, Michael Monroe, General Vice President Elect of the Second District (covering territory including New Jersey), and Ralph Williams, General Representative for Local 1983, to conduct an investigation of the matter. There can be little doubt that the decision to make an immediate investigation was triggered by the imminent disaffiliation vote, rather than other problems within the Local of which IBPAT officials may have been aware.

 When asked to investigate by his father, Michael Monroe checked with the contracts division of IBPAT and confirmed, by virtue of Local 1983 contracts on file, that most of the Local's collective bargaining agreements were due to expire by the end of the year and were soon up for renegotiation. He also obtained IBPAT financial records, indicating that Local 1983 was behind in its per capita payments. Michael Monroe turned this information over to his father, along with a recommendation that the Local be placed in trusteeship. Michael Monroe's recommendation was based on the following factors: a concern over whether the disaffiliation election was being conducted in a procedurally proper manner; *fn2" a concern over whether the upcoming contract negotiations would be made more difficult; *fn3" and a perceived need to put the situation "on hold": the trusteeship tool, he said, was the only means available to maintain the status quo pending a more thorough investigation into the Local 1983 situation.

 Ralph Williams was asked by A. L. Monroe to find out what Local 1983 contracts were coming up for renewal at year's end, as well as to check on the status of the Avalon 21 litigation. Williams reported that all the Local's contracts were coming up at the end of the year, *fn4" and that the Local had turned down a settlement in the Avalon 21 case, despite recommendations that it be accepted. Williams also reported that the Local spent a lot of money on attorney's fees. In their conversation, A. L. Monroe told Williams that he (Monroe) was going to recommend a trusteeship. Williams responded that he thought Monroe was doing the right thing. Williams was told to clear his calendar.

 The above is the extent of the pre-imposition-of-trusteeship investigation undertaken by IBPAT. Michael Monroe testified that, under normal circumstances, IBPAT would have undertaken a more extensive investigation and assigned several General Representatives to assist Williams. However, the preparation for the upcoming convention involved the participation of IBPAT officials who otherwise would have been available. Therefore, Monroe stated, the investigation, although not as thorough as would have been desirable, was as thorough as was possible at the time.

 11. On about July 14 or 15, Robert Welch, A. L. Monroe, and IBPAT General Counsel David Barr met to discuss the information that had been received from Michael Monroe and Ralph Williams. Barr was apparently aware of the earlier trusteeship and the history of prior difficulties within the Local. Welch stated that the three of them discussed the Local's financial difficulties, the issue of expiring contracts, and the question of whether a trusteeship would be helpful or harmful, especially with the convention coming up in August. They decided to recommend to General President Duval that a trusteeship be imposed on Local 1983, which ...


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