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SCHONFELD v. RAFTERY

October 5, 1971

Frank Schonfeld, individually and as Secretary-Treasurer of District Council 9, International Brotherhood of Painters & Allied Trades, AFL-CIO, Plaintiff
v.
S. Frank Raftery, as President of the International Brotherhood of Painters & Allied Trades, AFL-CIO, et al., Defendants


Lasker, D.J.


The opinion of the court was delivered by: LASKER

LASKER, D.J.

In this action seeking declaratory and injunctive relief under § 101(a) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 411(a), defendants Raftery and Di Silvestro move to dismiss the complaint on the grounds that (1) the court lacks subject matter jurisdiction, (2) the plaintiff fails to state a claim upon which relief can be granted, (3) plaintiff has failed to join an indispensable party, and (4) the issues raised are barred by application of the doctrines of res judicata or collateral estoppel.

 Background

 The claims presented arise from a continuing dispute between the Secretary-Treasurer of District Council 9 ("Council 9") of the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO ("Brotherhood"), and the leadership of the Brotherhood. Council 9 is one of ten subordinate bodies of the Brotherhood and is composed of some twenty-seven local unions divided into two groups: (1) the painters and paperhangers, 20 locals ("painters' locals"), and (2) six local unions in other related fields ("autonomous locals"). Plaintiff is the Secretary-Treasurer of Council 9 and a member of painters' local 1011.

 The Secretary-Treasurer is elected by all the locals, but has authority to negotiate and enforce contracts for the painters' locals only. Each autonomous local bargains collectively for itself and elects its own negotiating officers without participation by the painters' locals.

 Plaintiff contends that this voting scheme, prescribed by the Brotherhood's constitution and Council 9's bylaws, discriminates against members of the painters' locals and violates their equal right to vote because (1) it permits members of the autonomous locals, but not of the painters' locals, both to vote for the Secretary-Treasurer and choose their own negotiators and (2) it permits members of the autonomous locals to vote for the negotiator for the painters' locals (who is the Secretary-Treasurer) but does not permit members of the painters' locals to vote for the negotiator for the autonomous locals.

 Plaintiff has exhausted his union remedies. In the course of his fruitless attempts to amend the bylaws, the plaintiff alleges that a number of incidents occurred which were infractions of the "Bill of Rights of Members of Labor Organizations," § 101 (a) of the LMRDA.

 Jurisdiction

 Section 102 of the LMRDA, 29 U.S.C. § 412, provides that "[any] person" whose rights under § 101 of the LMRDA, 29 U.S.C. § 411, are violated "may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate." Section 101 provides members of labor organizations with a "Bill of Rights" including, in § 101 (a) (1), "equal rights and privileges . . . to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws." Section 101(a) (2) assures "Freedom of speech and assembly "; (a) (3) regulates dues, initiation fees and similar matters; (a) (4) guarantees that "no labor organization shall limit the right of any member thereof to institute an action in any court"; (a) (5) provides for due process procedures in disciplinary actions. Section 101(b) instructs that "[any] provision of the constitution and bylaws of any labor organization which is inconsistent with the provisions of this section shall be of no force or effect."

 Distinct from the guarantee of an equal right under § 101, Title IV of the LMRDA, 29 U.S.C. §§ 481-483, governs the actual conduct of union elections. Its provisions vest the Secretary of Labor with broad supervisory authority over the conduct of union elections and requires that any complaints from union members as to the conduct of the election must be first presented to the union and, having once exhausted that route, must then be presented to the Secretary of Labor. The Secretary is instructed to investigate such complaints and is authorized to "bring a civil action against the labor organization as an entity in the district court of the United States." (29 U.S.C. § 482(b)). *fn1"

 (a) Right to Equal Vote

 In the instant action, defendants contend that the complaint involves the conduct of elections for which plaintiff's exclusive remedy as to any grievances must be application to the Secretary of Labor under Title IV. Accordingly, they assert that this court lacks jurisdiction. This argument might have had merit if it were not that the passage of time has mooted the eighth cause of action, which sought court intervention in a union election scheduled at the time the complaint was filed. The plaintiff himself concedes that this cause of action has been mooted. He therefore urges that the complaint deals only with matters arising under Title I and that the court therefore has jurisdiction.

 Shorn of the eighth cause of action, what remains in the complaint arises squarely under Title I of the LMRDA. Without reaching the merits of the claims presented, we hold that they properly allege violations of rights guaranteed in § 101 of the LMRDA and do not involve the conduct of any specific election for which Title IV is provided as the sole avenue for redress of grievances.

 Plaintiff rests his claims on the grant of "equal rights and privileges . . . to vote in elections . . . subject to reasonable rules and regulations . . " Plaintiff's allegations that this guarantee in § 101(a) is violated by the voting system (as distinct from the conduct of that system) and the division of negotiating authority are within the scope of Title I. Because the allegations as to any specific election are moot, we have no occasion here to decide whether these claims (eighth cause ...


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