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PAPIANNI v. INTERNATIONAL ASSN.

December 10, 1985

DOMINIC PAPIANNI, JAMES P. KEARNS, JR., PETER DiGAVERO, EDWARD PSHYBSHEFSKI and PHILIP DiGAVERO, Plaintiffs,
v.
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 11, Defendants



The opinion of the court was delivered by: SAROKIN

 INTRODUCTION

 The circumstances of this case do not reflect favorably upon the conduct of the union here involved. It has systematically denied rights and opportunities to its own members apparently to protect a favored group within its ranks. Furthermore, it has consistently and blithely ignored prior court rulings and seeks here to reargue many which have already been determined against it. It is difficult for the court and certainly for the plaintiffs to understand why a union would treat its own members in such a cavalier fashion. Rather than representing the interests of its members, this union appears to be acting against them and has thus denied qualified transfer applicants the opportunity to receive the rights and benefits of union membership to which they are clearly entitled.

 This action is but one chapter in a series of lawsuits stretching over twenty years against various local affiliates of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, all generated by the locals' failure to accord transfer applicants the same rights and employment opportunities accorded to members of the local. The issue presented in this case is whether the deference due to local unions in the handling of their internal affairs prevents the court from granting relief to transfer applicants who have been forced to occupy a second class status within the local union because of practices by local officials which have no basis in the union's constitution. The court concludes that the principle of deference does not extend to that extreme.

 FACTS

 The facts in the record before the court, which have not been disputed in the one affidavit submitted by the defendant, are these. The five plaintiffs are all members of a local affiliate of the International Association. None of them has ever worked out of the hiring hall of the local to which he belongs, however. Rather, during the entire period of each plaintiff's association with the union, each has, with only minor exceptions, worked exclusively out of the hiring hall of the defendant, Local 11.

 Pursuant to Article XXI of the International's Constitution, each plaintiff has applied to transfer into Local 11. The constitution provides that when a member wishing to transfer from one local to another properly obtains and presents a "clearance card" to the local into which he wishes to transfer, "the matter shall be referred to the Executive Committee of the local union which shall accept or reject such clearance card within the discretion of the Executive Committee". Rather than either accepting outright or rejecting the plaintiffs' transfer applications in this case, however, the Executive Committee of Local 11 informed each plaintiff that his application had been approved, but that he would be placed on an "approved transfer list". Admittance from the list would be accomplished "in the date order [that] . . . transfer applications were filed, based however on the individual classification's [sic] in the trade in accordance with the needs of the industry in the Local Union's jurisdiction". Complaint, Exhibits A, C, & E (similar language in Exhibits D & E). Since the inception of the litigation, two of the plaintiffs, Peter and Philip DiGavero, have been admitted into the union, after remaining on the waiting list for five years. The remaining plaintiffs, Dominic Papainni, James Kearns and Edward Pshybyshefski, have still to be admitted after waiting five years, in the case of Papainni, and two years in the cases of Kearns and Pshybyshefski. *fn1"

 As approved transfers on the waiting list, the plaintiffs are not granted the same rights or employment opportunities as those afforded to local members. Among the rights denied them are: (1) the right to nominate candidates for election to Union office; (2) the right to vote in elections or referendums held by the Local; (3) the right to attend membership meetings; and (4) the right to participate in deliberations or votes upon business conducted at the meetings, including contract discussions and votes on the contract, even though the plaintiffs have had to work under the conditions imposed in the contract. Approved transfers are required to pay a non-membership fee in addition to a membership fee, which they presumably pay to the locals in which they are members. They do not accrue seniority credits in the local, which are used to determine, e.g., the order of layoffs on jobs. *fn2" They work an average of one quarter of the number of weeks per year that local members do, with correspondingly lower gross earnings. Plaintiffs allege in addition that, as approved transfers, they have been treated discriminatorily with regard to job referrals: they have not been sent out on jobs when requested by name, as is the practice with local members; they have had to wait their turn for a new referral after each job while local members have been skipped ahead; they are referred to short term jobs disproportionately often. They allege that, compared to local members, they are rarely appointed to be the foreman on a job, which entails a higher rate of pay. Because the union operates an exclusive hiring hall, plaintiffs essentially have no choice but to suffer this discrimination if they want to work in their trade in Local 11's jurisdiction. Defendant has not submitted any certification or affidavit to refute these claims.

 On February 29, 1984, plaintiffs filed their complaint in the Superior Court of New Jersey, Chancery Division, Union County. Each plaintiff alleged that he was "entitled to be transferred into Local 11 immediately in accordance with the constitution and ritual of [the] International." Plaintiffs further alleged that "the actions of Local 11 in refusing to properly process the transfer of [each plaintiff] . . . is a continuation of the prior discriminatory policy of Local 11 which is to exclude, as members, those who are not in some way 'related' to existing members and to exclude those who have not been accepted through the existing apprentice program, that is, to exclude transfers." The policy was alleged to be "unreasonable, unfair and an abuse of discretion, as well as deliberately contrary to law."

 Defendant duly removed the action to this court. In an opinion filed in July, 1984, this court found that it had original jurisdiction over the matter pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), because the action was one seeking relief for the violation of a labor contract, the union's constitution. The court accordingly denied a motion by plaintiffs to remand.

 Thereafter, defendant filed a motion for summary judgment on the ground that plaintiffs had failed to exhaust their internal union remedies. By consent of the parties, the action was stayed pending review of the matter by the International's General Executive Board. *fn3" The Board met on November 15, 1984, to consider the matter, and by letter dated November 21, 1984, notified each plaintiff that it had

 
unanimously decided to deny the appeals on procedural grounds in view of all of the circumstances surrounding the appeals, including the fact that appellants did not file timely and expeditious appeals, and in view of the fact that a decision of the General Executive Board would not terminate the litigation. The G.E.B. further decided that this decision shall not be construed as an interpretation of the Constitution with respect to the merits of the transfer policies of any local union.

 Defendant's Brief, Exhibit C. In view of the Board's refusal to grant the plaintiffs relief, the matter was reopened.

 Subsequently, the court considered a motion by plaintiffs to amend their complaint to allege causes of action under Section 101 of the Labor Management Reporting & Disclosure Act, (LMDRA) 29 U.S.C. § 411. The court granted the motion to amend except as to claims made that the local's hiring hall practices were discriminatory because those claims were admittedly pending in another forum as a result of a complaint filed with the National Labor Relations Board (NLRB). In its Opinion, filed February 14, 1985, granting plaintiff's motion to amend, the court found that plaintiffs' Section 101 claims were not untimely under the six month statute of limitations held applicable to such claims by the Third Circuit in Local 1397 v. United Steelworkers of America, 748 F.2d 180 (3d Cir. 1984). The court found that the Section 101 violations alleged in the proposed amendments were continuing violations and that the notifications to plaintiffs that their applications for transfer had been approved, promising them membership, albeit delayed, was not an open denial of rights triggering the running of the six month limitation period.

 Before the court at this time are the cross motions of the parties for summary judgment. On the merits, plaintiffs argue that the interpretation accorded to the association's constitution by the defendant in its "approved transfer list" procedure is patently unreasonable and therefore a violation of the constitution; that the quota system under which transfers are made constitutes an abuse of discretion by the local officials; and that the discriminatory treatment accorded to approved transfers on the waiting list violates the union member's "Bill of Rights" in Section 101. Defendant contends that the local's waiting list procedure is not a patently unreasonable interpretation of the constitution. It introduces the argument, which was not alleged as a defense in its answer either to the original complaint or to the amended complaint, that the waiting list procedure was necessary in order to comply with a 1972 Consent Decree arising out of a Title VII race discrimination suit against the local, styled U.S. v. Plumbers Local 24, et al., U.S. District Court, District of New Jersey, No. 444-71. It claims that the Consent Decree bound it to achieve a percentage goal of 20 percent minority members, which goal would be defeated if the local "diluted" its membership with whites like the plaintiffs. Defendant admits, however, that "the criteria for admission of the transferees included not only the Consent Decree but also the amount and nature of the work in the union's geographic area, the skills of the current members, and the rate of attrition of current members." Defendant's Brief at 13. Ignoring the court's February 14 ruling that the plaintiffs' "Bill of Rights" claims under the LMRDA were not barred by the applicable statute of limitations except in a footnote, Defendant's Brief at 25, defendant renews its argument that plaintiff's LMRDA claims are time-barred, as well as contending that their original contractual claims are time-barred.

 As to plaintiffs' first cause of action, the court finds that the defendant's waiting list procedure is an obvious subterfuge to avoid the effect of a 1975 New Jersey Supreme Court decision on the practice of New Jersey Ironworker locals to exclude transfers, Moore v. Local 483, 66 N.J. 527, 334 A.2d 1 (1975); that the defendant's reliance on the 1972 Consent Decree to justify the practice is not only misplaced, but greatly disturbing in light of a 1978 ruling by this court definitively rejecting defendant's interpretation of the Consent Decree; that the Local's other justification for exclusion of transfers based on the availability of work in the area is wholly improper and must be premised on a practice of discriminating against non-members in job referrals which constitutes a violation of the National Labor Relations Act; and therefore that the local's waiting list procedure is a patently unreasonable interpretation of the constitution. As to plaintiffs' second cause of action, the court finds that the approved transfer procedure has in effect created a sub-class of union members qualified for membership in the local in order to accomplish the goal of unreasonably depriving admittedly qualified applicants for membership of the rights guaranteed in Section 101; that plaintiffs' are in fact "members" of the local by virtue of their approval for transfer; and that defendant has violated their rights to participate in union governance in violation of Section 101. Finally, the court declines to reconsider its February 14 opinion that plaintiffs' LMRDA claims are timely, and finds that plaintiffs' contractual claims are timely under New Jersey's six year statute of limitations for contract claims as well.

 DISCUSSION

 As noted above, plaintiffs allege two causes of action. First, they allege that the waiting list procedure violates the International's constitution. Second, they allege that the failure to accord them rights to participate in the union's decision making violated the union member's "Bill of Rights" in Section 101. The parties agree as to the first cause of action that the standard for determining whether the local's actions violate the union constitution is whether they manifest a "patently unreasonable" interpretation of the constitution. See Plumbers Local 334 v. Plumbers Intern'l Union, 669 F.2d 129, 131 (3d Cir. 1982). As to the second cause of action, the issue is whether or not the local is obliged to accord plaintiffs the rights they seek: that is, whether or not plaintiffs are "members" of the local within the meaning of Section 101.

 It is impossible to understand the import and effect of the local's waiting list procedure without placing that procedure in historical context. Apparently since at least 1961, New Jersey Ironworkers locals, including Local 11, have engaged in a practice of unreasonably excluding transfer applicants from membership. See Hughes v. Local 11, 287 F.2d 810 (3d Cir.), cert. denied, 368 U.S. 829, 82 S. Ct. 51, 7 L. Ed. 2d 32 (1961) (union member seeking to transfer into Local 11 had to be accorded rights guaranteed under Section 101 because he had fulfilled all of the requirements of membership, though union refused to perform ministerial acts necessary to list plaintiff as member.) For reasons that are not entirely clear in the record, it seems that local workers who aspire to become members of the union are forced to join the union as members of locals in other areas, including other states, although the applicants never travel to or work in the jurisdictions of these other locals. The applicant then obtains a clearance card and attempts to "transfer in" to the New Jersey local, though he has never worked anywhere but in the jurisdiction of that local. There is also apparently widespread illegal discrimination against the transfer members in favor of the local members in the union's exclusive hiring halls. See N.L.R.B. v. Local 483 and Local 11, 672 F.2d 1159, 1163 (3d Cir. 1982) ("in several earlier cases involving other northern New Jersey ironworker locals, all of which are parties to the same contract and consent decree and operate hiring halls identical to those at issue here, the Board found widespread discrimination by the locals in favor of their own members, highlighted by grossly disproportionate referral statistics and what the Board found to be an 'inescapable inference of deceit in maintaining the referral register '"). Plaintiffs are pursuing claims against the local before the NLRB and the courts to remedy this discrimination, although the current status of those claims is not clear in the record before the court. Perpetuation of the practice of excluding transfers from membership has been accomplished by amendments to the union's constitution and by local unions' inventiveness in creating ever new procedures to exclude transfers.

 As noted in the New Jersey Supreme Court's 1975 decision regarding the then-existent practice of flat rejection of all transfer applicants in Local 11's sister local, Local 483, Moore v. Local 483, 66 N.J. 527, 531, 334 A.2d 1 (1975), the International's constitution has been revised twice since 1960:

 
The 1960 constitution mandated acceptance by a local union of all transfer requests. The 1964 constitution provided that a local union by a majority vote could accept or reject transfer applications. The 1968 constitution, which governs plaintiffs' requests for transfer, eliminated the necessity of a vote by the entire membership of the local union and delegated the acceptance or rejection of transfers to its executive committee.

 The constitutional language quoted to the court by both parties is identical to that quoted in Moore, and apparently has not been revised since 1968.

 In 1961, in Hughes, supra, the Third Circuit considered Local 11's practice of simply failing to admit transfer applicants, under a constitution that mandated automatic admittance. The court found that the Local's differential treatment of transfers violated Section 101, even though the plaintiffs were not technically members of the union, because they had fulfilled all of the requirements for membership. The court reasoned that "the Act's protection is extended to those who are everything that members are, to those who are in substance members, despite the fact that the officials of the particular labor organization have not performed the ministerial acts precedent to formal admission and recognition." Hughes, 287 F.2d at 815.


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