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December 7, 1972

Frank Schonfeld, Individually and as Secretary-Treasurer of District Council 9, International Brotherhood of Painters and Allied Trades, AFL-CIO, Plaintiff
John Penza, as Chairman and member et al., International Brotherhood of Painters and Allied Trades et al., Defendants

Brieant, D. J.

The opinion of the court was delivered by: BRIEANT


By an order to show cause issued September 29, 1972, in 72 Civ. 2827, plaintiff, Frank Schonfeld, sought to restrain defendants, pending trial of this action, from effectuating the decision of a Trial Board of District Council No. 9 of the International Brotherhood of Painters and Allied Trades, dated September 15, 1972, which removed him from his position as elected Secretary-Treasurer of District Council No. 9, after a hearing held pursuant to formal written charges. The Trial Board also declared him ineligible to seek re-election for a five year period.

 On October 10, 1972, a hearing was held with respect to that application. The Court continued the temporary restraining order granted by the aforesaid order of September 29, 1972. The hearing was thereafter resumed on October 11, 1972. At that time the temporary restraining order was continued in effect and further hearing held on October 18, 1972.

 At that time, with the aid of the Court, a stipulation was entered into on the record in lieu of a preliminary injunction pending trial. It was agreed in substance that plaintiff Schonfeld would continue in office, that he would exercise his powers concurrently with Morris Levy, President of the District Council, and would exhaust his intra-union remedies by prosecuting his appeal from the decision of the Trial Board of District Council No. 9 to the General Executive Board of the International Brotherhood. *fn1" Pending the outcome of the appeal, the matter was continued.

 On November 17, 1972, that Board entered a decision in effect sustaining the findings of guilt by the Trial Board. The General Executive Board modified the punishment meted out to Schonfeld by District Council No. 9's Trial Board. It removed Schonfeld from office as Secretary-Treasurer, effective that day, for the duration of his term, expiring on the date of the first council meeting in July, 1973, directed the District Council to conduct an immediate election (January) and determined that "Brother Schonfeld may not run for the position of Secretary-Treasurer in the forthcoming election to fill the vacancy, but may run for that position or any other office in the next regular election, with respect to which nominations are to be made in May, and the election to be held in June of 1973."

 On or about November 22, 1972, Isaac Schwartz and others, rank and file members of local unions affiliated with the District Council, initiated the second above entitled action, 72 Civ. 4971. An order to show cause dated on that day and returnable November 28, 1972 was issued bringing on a motion by Schwartz, et al. for a preliminary injunction restraining defendants from carrying out the proposed disciplinary action, or interfering with the right of Schonfeld as Secretary-Treasurer to carry out his duties. A hearing was held in both actions on the motions for preliminary injunctions pending trial, and by a Memorandum and Temporary Restraining Order issued November 30, 1972, this Court restrained the defendants for a period of ten days or until the further order of this Court, from implementing or otherwise carrying out the disciplinary action. Such temporary restraining order contained limitations and provisions as therein more fully set forth, which however are not material to the determination of the motions.

 District Council No. 9, International Brotherhood of Painters and Allied Trades, AFL-CIO, is a regional council or administrative group consisting of approximately 28 local unions in the City of New York. Such local unions include (1) affiliated or so-called "painters locals" for which the District Council provides collective bargaining and related services, (2) autonomous locals in special branches of the craft, such as sign writers, scenic artists and glaziers, which conduct their own collective bargaining, choose and pay their own business agents, and accordingly pay a smaller capitation or head tax to the District Council than the affiliated locals do, and (3) there may be some locals which could be described as "semi-autonomous", such as maintenance painters and paper-hangers.

 Schonfeld, as Secretary-Treasurer, is the only officer of District Council No. 9 who is elected by the vote of all of the members. There are presently pending, among other District Council litigation, two causes, Fritsch, et al. v. District Council No. 9, 67 Civ. 3147 and Schonfeld v. Raftery et al., 359 F. Supp. 380 (1973). These cases were consolidated for trial, have been tried before me and are pending decision. They relate generally to the job of Secretary-Treasurer and arise out of determined but unsuccessful efforts by Schonfeld to effectuate a "painters section" within the District Council, or alternatively, to circumscribe the functions of the Secretary-Treasurer, or alter the method of selecting him.

 These causes remain sub judice. While the Court, in reaching its determination with respect to these motions has considered the exhibits, pleadings, testimony and evidence in those cases, nothing herein contained should be deemed to make any findings, express or implied, in that litigation, and no inference should be drawn from these findings and conclusions as to the ultimate disposition of that litigation by the Court. In that litigation (hereinafter "the Fritsch case"), the rank and file whom Schwartz, et al., seek to represent here, are parties through Fritsch, et al., and the District Council is a party to the record. Defendants in these two cases had there ample opportunity for confrontation and cross-examination. Accordingly, they are bound by the record.

 Schonfeld has served as Secretary-Treasurer since his election in 1967. He was re-elected in 1970. Although as noted, the Secretary-Treasurer is elected by the vote of all members of the affiliated locals of District Council No. 9, all other officers of District Council No. 9 are elected by vote of the delegates to the District Council. The delegates are elected in turn by the members of the local unions they represent. And, each local is represented by a number of delegates roughly proportional to its total membership. It can be seen, accordingly, that the Secretary-Treasurer is, by reason of his election throughout the craft, the district officer closest to the rank and file in terms of the democratic process. He is also the most powerful.

 The Court will not characterize the prior experiences of the District Council before the coming to office of Schonfeld. Schonfeld, with some justification, and with the concurrence of Schwartz, et al., characterizes himself as a reformer, intent on bringing honest and fair dealing to the union, and zealous in his long struggle for the rights of the rank and file. Morris Levy, President of District Council No. 9, has in contrast, said of Schonfeld "Your Honor, he is not the Savior, not the God over everybody. This is what his whole actions have been." (Tr. October 18, 1972, p. 13.)

 The Court has no part in this underlying intra-union political controversy. The accusations made against Schonfeld are typical of those indignities visited upon reformers and zealots the world over. Nothing herein contained should be deemed a judicial taking of sides between or among the two or more elements whose generation of factionalism and litigious conduct has unfortunately been visited upon this honored craft. *fn2"

 While the Court in the trial of the Fritsch case had admonished counsel not to mention the name of Martin Rarback, it is now necessary to do so, and to revert briefly to pre-Schonfeld conditions in District Council No. 9.

 Accordingly, reference is had to the findings and conclusions of Judge Frankel of this Court, reported in Schonfeld v. Raftery, 271 F. Supp. 128, aff'd 381 F.2d 446 (2d Cir. 1967). *fn3"

 As Judge Frankel noted, Martin Rarback, as Secretary-Treasurer, had enjoyed a dictatorial regime for more than 20 years, during which the constituent union membership was "poorly served and frequently betrayed". Schonfeld had the temerity in 1961 to run for the position of Secretary-Treasurer. He was unsuccessful. He was made the subject of intra-union discipline by a trial board, resulting in conviction and fine. Other charges and more punishment were threatened by Rarback.

 Judge Murphy of this Court, after a review of the trial board record, enjoined enforcement of that punishment and prevented the filing of further charges. He remarked "We are compelled to agree . . . that 'if this be due process, the moon is made of green cheese'." Yochim and Schonfeld v. Caputo and Rarback, October 24, 1962, 61 Civ. 2223 (not officially reported, but quoted by Frankel, J. in Schonfeld v. Raftery, 271 F. Supp. at p. 132).

 The conflict continued. Litigation was commenced in this Court by Schonfeld and others against Rarback (65 Civ. 2695) charging conspiracy and collusion with employers. Evidence of misconduct was developed before a U.S. Senate Committee. Rarback was indicted on October 18, 1966 for criminal misconduct in connection with union activities, and the International Brotherhood placed the District Council under trusteeship effective the following day. In doing so, International President Raftery announced, among other things, "beginning about September, 1964 and continuing to date, repeated complaints have been lodged alleging collusive bidding, bribery of public officials and other irregularities in connection with the painting of public housing projects in the area coming within the jurisdiction . . .."

 As a result of the trusteeship, all District Council officials and employees, except Rarback remained in office. As Judge Frankel observed (p. 138 of 271 F. Supp.): ". . . the evidence showed that all were reinstated within 24 hours, with no investigation, either before or after, of their roles in aiding Rarback's oppressive regime, in condoning the admitted mismanagement of the Council's affairs . . . and other corruption." On December 2, 1966, for various reasons detailed by Judge Frankel, Rarback was also restored to the District Council payroll.

 Judge Frankel has detailed in full the condition in which the District Council found itself, characterized by factionalism, strife and litigation, following the institution of the trusteeship, and the removal of Rarback. These days were also characterized by unlawful restraints upon the right of freedom of speech of union members and officers, cf. Yochim, supra and Salzhandler v. Caputo, 316 F.2d 445 (2d Cir.), cert. denied 375 U.S. 946, 11 L. Ed. 2d 275, 84 S. Ct. 344 (1963).

 The District Council was divided into cliques and factions, highly politicized and extremely bitter against each other.

 Judge Frankel terminated the trusteeship and in doing so held that he could act, in support of the franchise of the rank and file, and in the interests of justice, without the necessity of an exhaustion of administrative remedy offered through the Secretary of Labor pursuant to § 304(a) of LMRDA, 29 U.S.C. § 464(a). See 271 F. Supp. 128. His conclusion was affirmed on appeal, 381 F.2d 446 (2d Cir. 1967).

 Judge Frankel held that the trusteeship was not established and had not been maintained in good faith for a lawful purpose; that there had been bad faith in the exercise of the trusteeship "imposed to keep the entrenched group (Rarback's) in power" (p. 147 of 271 F. Supp.); that notwithstanding Title IV of the LMRDA vesting exclusive jurisdiction in the Secretary of Labor, a court of equity could invalidate the trusteeship and order an election as a corollary of and incident to the primary relief to be granted. The Court did so. Schonfeld was elected Secretary-Treasurer.

 It was too much to expect that the factionalism and extreme bitterness which had characterized union affairs during the years in which Schonfeld was seeking the office, and District Council affairs were controlled by Rarback or those friendly to him, would suddenly cease with the election of Schonfeld, and it didn't. Nevertheless, Schonfeld was re-elected in 1970.

 It serves little purpose to catalog all the lawsuits which have been continued, or initiated in the years since Judge Frankel's decision. They are most numerous. *fn4"



 Plaintiff found jurisdiction on Subchapter II of LMRDA, 29 U.S.C. § 411 et seq. Subchapter I of that statute, § 401(a), protects the right of the rank and file to "choose their own representatives". Section 411(a) (1) gives to Schwartz, et al. the right "to nominate candidates and to vote in elections . . . of the labor organization . . . subject to reasonable rules and regulations in such organization's constitution and bylaws." Subparagraph (2) thereof gives every member the right to express any views and opinions, again, subject to established and reasonable rules.

 Section 412 gives to any person whose rights are secured by that subchapter of the Act a remedy by civil action in this Court for such relief, including injunction, as may be appropriate.

 To the extent that the penalty imposed on Schonfeld (removal from office and disqualification as a candidate in a special election to fill the vacancy) is based upon proceedings not in accord with the Constitution and By-Laws of the International Brotherhood or the District Council, or is of such a transparent and insubstantial nature insufficient to warrant the penalty imposed, but brought instead out of bad faith and vindictiveness, the rights of the rank and file members under subchapters I and II of the Act have been violated. Removal of a duly elected union official under improper circumstances and before expiration of his term, and disqualification of such official as a candidate for re-election is an interference with the right of the rank and file to vote for candidates of their own choice as guaranteed by the Act.

 If the activities of the anti-Schonfeld clique are intended to chill Schonfeld's free speech, or the freedom of speech of other members who may be deterred by the difficulties experienced by Schonfeld, such activity is also actionable at the instance of Schwartz, et al.

 In Mamula v. Local 1211, United Steelworkers of America, 202 F. Supp. 348 (W.D. Pa. 1962), the Court held that 29 U.S.C. § 411(a) (5) confers jurisdiction on the district court if a union official who has been removed from office is also prohibited from holding office for a specified time. The prohibition is an interference with the removed officer's status as a union member under 29 U.S.C. § 411(a)(5).

 The same reasoning was followed in Martire v. Laborers' Local Union 1058, 410 F.2d 32 (3rd Cir. 1969). In that case, a business manager of a local union was removed from office and barred from holding office in the union for five years after his removal. The prohibition against holding office was held to affect his status as a union member, under 29 U.S.C. § 411(a) (5). See also, Grand Lodge of Machinists v. King, 335 F.2d 340 (9th Cir. 1964); Yochim, supra ; Schonfeld v. Raftery, 271 F. Supp. 128 (Frankel, J.), aff'd 381 F.2d 446 (2d Cir. 1967); Schonfeld v. Raftery, 335 F. Supp. 846 (Lasker, J. 1971), and prior cases involving this union, therein cited; Robins v. Schonfeld, 326 F. Supp. 525 (Levet, J. 1971); Gleason v. Chain Service Restaurant, etc. Employees Int'l Union, 422 F.2d 342 (2d Cir. 1970); Vars v. International Brotherhood of Boilermakers, etc., 320 F.2d 576 (2d Cir. 1963).

 Defendants urge that deprivation of the right to nominate and vote for Schonfeld is, as to plaintiffs Schwartz, et al., a violation of § 481, which is not actionable in the first instance by this Court, but with respect to which administrative remedies must first be exhausted by filing a complaint with the Secretary of Labor, who alone may seek the aid of this Court. Defendants assert that this Court has no jurisdiction to grant the plaintiffs the remedy they seek since they have come to the wrong forum and should have complained to the Secretary of Labor.

 Relying on the distinctions suggested by Judge Lasker in Schonfeld v. Raftery, 335 F. Supp. 846, 852, we reject this suggestion. On the facts hereinafter found, it would seem beyond argument that the equal rights to nominate candidates granted to Schwartz, et al. by § 411(a) (1) of the Act and which are concededly actionable in District Court under § 412 thereof, have been infringed. At least there is reasonable ground so to believe, and the circumstance presents a fertile field for litigation, so as to support the provisional remedy of an injunction pending trial.

 At the very least, plaintiffs Schwartz, et al., have a reasonable probability of success on the trial in founding jurisdiction on § 412, without the necessity of exhausting remedies which they may have with the Secretary of Labor under § 482, relating to conduct of an actual election.

 In the meantime, the rank and file are not to be prejudiced by a failure to preserve the subject matter until the Secretary of Labor may determine his own jurisdiction, and act if so advised.

 The Court concludes that there is jurisdiction over the subject matter of this application pursuant to 29 U.S.C. §§ 401, 411 and 412, and further that such jurisdiction is not negated by the exclusive jurisdiction granted in election cases to the Secretary of Labor under § 482 of the Act.

 Even assuming the Secretary of Labor has exclusive jurisdiction, these rank and file plaintiffs are not to be penalized by their incorrect choice of a forum, if that is what they did, and the Court has pendent jurisdiction to issue and maintain a preliminary injunction pending trial until such time as the Secretary of Labor can investigate, consider his own jurisdiction and make an informed disposition of such matters which may hereafter be laid ...

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