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FANNING v. UNITED SCENIC ARTISTS

August 30, 1966

Paul Fanning, et al., Plaintiffs
v.
United Scenic Artists, Local 829, Brotherhood Of Painters, Decorators, And Paperhangers Of America, AFL-CIO, et al., Defendants


McLean, District Judge.


The opinion of the court was delivered by: MCLEAN

McLEAN, District Judge.

This is a motion by plaintiffs for a preliminary injunction in an action brought by two members of Local 829 of the Brotherhood of Painters, Decorators and Paperhangers of America against the local union and the international union.* Plaintiff Fanning also asserts a claim against National Broadcasting Company (NBC). The complaint alleges that "jurisdiction of this action is conferred upon the Court by § 102 of the LMRDA, 29 U.S.C.A. § 42 (sic: 412) and the National Labor Relations Act as amended, 29 U.S.C. § 151, et seq. . . . ."

 The complaint by no means affords that "short and plain statement of the claim showing that the pleader is entitled to relief" which Rule 8(a)(2) requires. Its allegations appear to come down to the following.

 In the first 14 paragraphs, which apparently constitute the first count, both plaintiffs complain on their own behalf and on behalf of all other members similarly situated, against the local and international union. They allege that they "have been consistently and arbitrarily discriminated against, in that many members of the Union are employers who operate as contractors and are either underassessed or not assessed at all, while having a full voice and vote in a Union supported by the excessive assessments paid by such members as plaintiffs." They charge that when they attempted to express their views "on the consistent failure of certain classes of members to pay a percentage of income proportionate to that required to be paid by plaintiffs," they were subjected to threats of ouster and physical violence, and that they were brought up on "vicious and irrelevant charges."

 The complaint further alleges that "for protesting the Union's insistence upon forcing employers to make unauthorized deductions from their wages," plaintiffs were fined and threatened with suspension. They allege that the conduct of the local and international constituted an "unfair labor practice."

 The complaint also asserts that "the plaintiffs' rights to be properly represented by officers concerned for their seniority and other interests has been, is being and will be infringed." This seems to pertain to the charge that the union has failed to maintain a "seniority roster."

 The next four paragraphs, entitled "Second Claim ", comprise a claim on the part of plaintiff Lucek only against the two unions. After realleging everything that has gone before, he alleges that in September 1965 he "protested through the NLRB" against the actions of his employer in deducting from his wages "payments demanded by the Union," and that his employer desisted from making these "unauthorized deductions" and continues to employ him, but Local 829 has "instituted a proceeding against" his employer. He alleges that "few employers can be expected to withstand the pressure," that plaintiff is in danger of losing his livelihood, that his income has decreased, and that "but for the courage of his present employer, he might be a pariah in his own profession." For this he asks judgment against the two unions for $100,000.

 The next nine paragraphs, entitled "Third Claim," constitute a claim on the part of plaintiff Fanning against NBC. After realleging everything previously set forth in the complaint, he charges in substance that he has been employed by NBC on an occasional basis, that he did not authorize NBC to deduct any union assessments or dues from his wages, but that nevertheless such deductions were made, and that NBC in so doing is "rendering unlawful assistance and support to a labor organization," i.e., Local 829, with which NBC has a collective bargaining agreement. This is alleged to be an unfair labor practice. He further charges that NBC has substantially reduced his employment opportunities and has reduced its requests for his services. For this he asks judgment against NBC for $10,000.

 Finally, the complaint contains Paragraph XXVII, which appears to be a separate claim, although not so labelled. It alleges that "because of the Local's and/or the International's conduct in coercing NBC and other employers to refrain from hiring plaintiff Fanning," and "for failing to protect his thirty years seniority," he has been damaged in the sum of $100,000.

 The relief asked by the complaint is extensive. Each plaintiff seeks damages against the two unions of $100,000. Plaintiff Fanning, as above noted, also seeks damages from NBC of $10,000. The complaint asks that the local and the international be directed "to grant to plaintiffs such seniority for pay and voting purposes as are consistent with their years of affiliation and record of employment," that they be enjoined from "reducing such seniority," that they be enjoined from violating the union constitution "by allowing contractors to vote," and that they be restrained from conducting any union elections, either of the local or the international, until this court "has an opportunity to examine all the books, records, voting practices, seniority rosters, eligibility requirements." Further, the court is asked to restrain the local and international "from frustrating the requirement, to account for all moneys collected from all members," and to appoint a receiver to "collect and handle all funds of the Local and International, with power to administer all Union affairs."

 The present motion asks the court (1) to direct the defendants "to submit all books and records necessary for an independent audit and examination of the check-off system and dues collection system," (2) to appoint a receiver "to collect the dues and assessments and conduct the administration of the Union affairs," (3) to "establish a seniority roster for members of the Local," (4) to set aside "the protested election" and hold "a lawful election," (5) to enjoin defendants "from refusing to accept the membership dues of plaintiffs," and (6) to require NBC "to cease the unfair labor practices complained of, herein, during the pendency of this action."

 The motion is supported by affidavits of each plaintiff which are not entirely coherent. As to NBC, plaintiff Fanning asserts that NBC has deducted union dues and assessments from his wages without his consent, and conversely, that it has failed to withhold his federal and state taxes. As to the unions, he complains that they have discriminated between members with respect to dues and assessments, that the local permits "contractors" to be members, that it fails to maintain a seniority register, and that certain members of the Executive Board maintain training schools for new members. He says that when he attempted to express his views, he was threatened with expulsion, and that when he unsuccessfully ran for president of the local, he was "persecuted" and subjected to "reprisals" in ways unspecified. He asserts, without any concrete details, that "a review of the books and records of the Local and International will reveal that Union held property has been wasted and mishandled." In an appendix to his affidavit, he elaborates to some extent on these charges, again without any relevant concrete facts beyond the statement that he was fined because he refused to consent to deduction of union assessments from his wages.

 Plaintiff Lucek states in his affidavit that "the entire system of dues and assessment collection of the defendant unions is inequitable, unfair and prejudicial." He says that because of his protests about the inequities of the dues collection system, he was brought up on charges by the local's executive board, that he and plaintiff Fanning were found guilty and fined $50 and that this action was "beyond the Union's jurisdiction" and clearly a reprisal.

 He says that he complained to the international about the election of officers held in June 1965 and that his ...


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