The opinion of the court was delivered by: BONSAL
Plaintiffs are three members of the National Maritime Union of America (NMU); defendants Curran and Wall are elected officers of the NMU; defendant Perry was an employee of the NMU and Assistant to the President; and defendants, Segal, Freedman, and Karchmer are trustees of the NMU Officers' Pension Plan (the Pension Plan).
Plaintiffs instituted this action in February 1969. The complaint alleges that defendants allowed the Pension Plan to be amended in 1961, so as to include as participants designated employees of the NMU, who were not elected officers of the NMU (non-officers), in violation of the NMU Constitution then in effect; and that the amendment was designed to siphon NMU funds to the non-officers who were not authorized to receive them. Plaintiffs seek an accounting and money damages from the defendants responsible; an injunction enjoining the Trustees from paying any benefits to non-officers; and costs, disbursements, and attorneys' fees, under 29 U.S.C. § 501(b).
Defendants Curran, Wall, and Perry (the moving defendants) move for an order, pursuant to Rule 12, F.R. Civ. P., dismissing the action; or, in the alternative, for an order, pursuant to Rule 56, F.R. Civ. P., for summary judgment on their behalf. Plaintiffs cross-move for summary judgment as against all defendants.
In 1951, following the amendment of the NMU Constitution, Article 15, entitled "Salaries of Officers," provided, in part, as follows:
" Section 1 - Salaries and Expenses : The National Council . . . is empowered, subject to approval of the membership, to set from time to time the actual salaries and daily expenses of all Union officers and employees.
Sec. 8 - Pension and Welfare : The National Council, subject to approval of the membership is empowered to make adequate and appropriate provisions for pensions, welfare, and similar benefits for officers and employees of the Union."
On December 29, 1952, an Agreement and Declaration of Trust (the Trust Agreement) was entered into between the NMU and three Trustees, including defendants Segal and Karchmer, granting to the Trustees authority to establish the Pension Plan.
On February 16, 1953, the Trustees promulgated the Pension Plan, which provided that "officers" who had attained a certain age and had credit for a certain number of years of "covered employment" were eligible to receive pension benefits.
In 1960, the NMU Constitution was again substantially revised and a new Article 14, entitled "Compensation of Officers," was substituted for Article 15 of the 1951 Constitution.
Article 14 provided, in relevant part:
" Section 1 - Salaries : (a) The National Council shall fix the salaries for all officers of the Union, subject to approval ...