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July 17, 1964

Gilbert M. KING., Charles Smith, John Horan, Charles Katinas, Charles Mallery, Edward Iocca, Francis McGurk and John Di Gennaro, each of them individually and on behalf of all other members of Local 1476, International Longshoremen's Association, Plaintiffs,
Joseph RANDAZZO, as President, or James Borrazas, as Secretary-Treasurer of Sugar Workers Council of North America, International Longshoremen's Association, Defendants

The opinion of the court was delivered by: BARTELS

Plaintiffs bring this action under Section 102, Title I of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C.A. ┬ž 412, on behalf of themselves and all other members of Local 1476, International Longshoremen's Association (ILA) (Local), against Sugar Workers Council of North America, International Longshoremen's Association (Sugar Council), an unincorporated association, seeking (i) declaration that an asserted affiliation of the Local or its members with the Sugar Council is null and void; (ii) recovery of invalid dues theretofore assessed against them and enjoining collection of further invalid dues, and (iii) enjoining Sugar Council from requesting any employer to discharge or suspend any member of the Local for failure or refusal to pay such dues to the Sugar Council.

In substance, the Local alleges that in October, 1963, the Sugar Council declared that the Local and its members were affiliated with the Sugar Council and subject to the payment of certain dues in the amount of $ 2 per month, payable to the Sugar Council, that neither the members of the Local nor any governing body of the Local agreed to such affiliation or to the payment of such dues, that the Sugar Council has already collected upon demand $ 6 from each member and threatens to cause the discharge of any member of the Local who fails or refuses to pay the dues requirement for the quarter ended June 30, 1964, and that by reason of such intimidation will continue to illegally collect invalid dues from its members. Plaintiffs move pursuant to Rule 65, Fed.Rules Civ.Proc., 28 U.S.C.A., for an order enjoining and restraining the defendants pending trial from taking any further action with respect to dues, etc. by reason of said illegal affiliation, and the defendants cross-move pursuant to Rule 12(b)(1) and 12(b)(6), Fed.Rules Civ.Proc., 28 U.S.C.A., to dismiss the complaint on the ground that it fails to state a claim and that the Court lacks jurisdiction over the subject matter. Defendants predicate their motion on the ground that the LMRDA did not legislate in the area of internal organizational structure of unions and moreover, that the Local's affiliation with the Sugar Council complied in all respects with the requirements of Section 101(a)(3)(B) of the LMRDA because unanimously authorized by action of the International Executive Council of the ILA (Executive Council) pursuant to authority contained in an amendment to its international constitution adopted at its convention in 1963. From the papers and briefs submitted the following appear to be the facts:

 In 1957 the ILA adopted a resolution authorizing the issuance of a charter for the Sugar Council. In 1961 a number of local unions pursuant to this authority, organized the Sugar Council as an intermediate body within the ILA. The Sugar Council then adopted a constitution which in Article X, Section 1 provided in part:

 'Each member of each Local Union affiliated with this organization shall pay to this organization monthly, as per capita tax, a sum equal to two (2 cents) cents per hour for each hour of payment of wages while employed by an employer under contract, with an affiliated Local Union, but in no event more than eighty (80 cents) cents per week.'

 and in Section 2 (Article X) provided:

 'If required by applicable law each Local Union affiliated with this organization shall prior to such affiliation conduct a vote among the Local Union's membership by secret ballot after reasonable notice approving the payment of the per capita tax mentioned in 'Section 1' above.'

 In July, 1963, at the International Convention an amendment was proposed to the ILA constitution providing for the creation of the Sugar Council, the adoption by it of a constitution and by-laws for its own government subject to the approval of the Executive Council, and compelling affiliation of all local unions of the Sugar Council upon penalty of fines for failure to affiliate. These resolutions were shelved as being too broad and instead the following amendment was approved:

 'That Article V, Section 1, of the ILA Constitution be amended by adding the following sentences at the end thereof: The Convention or the Executive Council by two-thirds vote shall be empowered to establish councils to coordinate the activities of Local Unions in the same craft or branch of the industry with such powers and functions as the Convention or Executive Council shall prescribe.'

 (This does not specifically refer to the Sugar Council.) Thereafter and on August 16, 1963, the Executive Council met and unanimously approved a proposal that (1) the existing Sugar Council be incorporated into the ILA structure pursuant to the power vested in the Sugar Council by the foregoing amendment; (2) the Sugar Council possess the powers and rules under which it had been operating to date, and (3) all Local Unions representing employees in the sugar industry be required to affiliate. On September 24, 1963, the ILA secretary wrote to defendant Borrazas, the Local's secretary, advising him of the action of the Executive Council and further advising him that Local 1476 was required to affiliate with the Sugar Council as of October 1, 1963. *fn1"

 Between October and November, 1963, collective bargaining agreements were negotiated with the three employers of Local 1476, to each of which the Sugar Council was a party and each of which contained a union shop agreement. The Sugar Council admits that pursuant to the union shop agreement the Sugar Council has from time to time threatened enforcement of the sanctions of the union shop agreement where employees became delinquent in their dues and obligations to the Council, which is confirmed by affidavits submitted on behalf of the plaintiffs. Plaintiffs assert that neither Local 1476 nor any of its members have ever voted to affiliate with the Sugar Council and that on the contrary, have rejected such affiliation.


 The nub of the problem presented by these motions is whether the unilateral affiliation of the local unions compelled by the Executive Council involved an increase in dues assessed against each member of the Local and if so, whether such increase was authorized under the requirements of Section 101(a)(3)(B) (iii) of the LMRDA (29 U.S.C.A. 411(a)(3)(B)(iii)). Section 101(a)(3) prohibits the increase in dues or the levy of special assessments except by the methods therein prescribed. The pertinent provision of this section is (a)(3)(B)(iii), which refers to the case where an executive council attempts such an increase and provides that there shall not be any such increase in membership dues except 'by majority vote of the members of the executive board or similar governing body of such labor organization, pursuant to express authority contained in the constitution and bylaws of such labor organization * * *.' (Emphasis supplied.) It is unnecessary to pass upon plaintiffs' contention that the Executive Council had no authority to compel its affiliation with the Sugar Council without a vote of the members of the Local. That issue by itself would involve a question of the internal organization of the union and would not under the circumstances be subject to the jurisdiction of this Court. But this affiliation has produced consequences beyond the mere act of affiliation and the legality of these consequences is a proper issue for the Court to decide. At the outset it is necessary to dispose of defendants' claims that there actually was no increase in dues by the affiliation inasmuch as the dues requirement of the Sugar Council had theretofore existed, that in all events such dues could not be treated as an increase in dues but only assessments incident to the affiliation and that as such indirect obligations, were not within in the intendment of the Act. With this contention the Court cannot agree. The payment required to be made by the members of the Local to the Sugar Council was described as a per capita tax, which is another label for dues, and as such was in addition to the present dues paid by the members of the Local; consequently they amounted to an increase in the dues assessed against them. This is true whether the amount is directly or indirectly assessed. An affiliation with a council already committed to a dues requirement cannot be employed as a means of circumventing the statutory requirements necessary to authorize an increase in dues.

 The real problem here is whether the affiliation compelled by the Sugar Council resulted in increased dues of the members of the Local which had not been legally authorized by either (i) the ILA constitutional amendment granting power to the Executive Council to establish councils or (ii) the Executive Council by its act in incorporating the existing Sugar Council into the ILA structure and requiring compulsory affiliations.

 Defendants argue that the constitutional amendment gave the Executive Council the power to increase dues and that the Executive Council exercised that power by its resolution incorporating the Sugar Council and stating that the Sugar Council shall possess ...

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