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May 8, 1973

Frank Schonfeld, individually, and as Secretary-Treasurer of District Council No. 9, International Brotherhood of Painters and Allied Trades, AFL-CIO, Plaintiff,
S. Frank Raftery, as President of The International Brotherhood of Painters and Allied Trades, AFL-CIO et al., Defendants. Robert Fritsch et al., Plaintiffs, v. District Council No. 9, Brotherhood Of Painters, Decorators and Paperhangers Of America, et al., Defendants

Brieant, District Judge.

The opinion of the court was delivered by: BRIEANT

BRIEANT, District Judge.

These two civil actions were consolidated for trial and tried before me without a jury. The litigation relates generally to the job of Secretary-Treasurer of defendant District Council No. 9 (the "Council"), and determined but unsuccessful efforts by plaintiffs and others to (1) effectuate a "painters' section" within the District Council, or (2) circumscribe the functions of the Secretary-Treasurer, or (3) alter the method of his election.

 Plaintiffs Fritsch and Rossiter in 67 Civ. 3147 are rank and file members of Local 454, a local union affiliated with the Council. Plaintiff Schonfeld in 70 Civ. 2544 is a member of Local 1011, a local union affiliated with the Council, and is now serving as Secretary-Treasurer of the Council, having been elected to that office in June, 1967 and again in June, 1970. His position is that of chief executive officer of the Council, and he is the only Council official elected directly by the general membership of the constituent locals.

 Defendant International Brotherhood of Painters & Allied Trades, AFL-CIO (the "International") is an international labor organization consisting of approximately 1400 local unions and about 70 district councils. Defendant Council is a regional labor organization of local unions and a subordinate body of the International. The International and the Council are each labor organizations within the meaning of § 3(i) of the Labor Management Reporting and Disclosure Act of 1959 (29 U.S.C. § 402(i).) Council has its principal office in this District. Its jurisdiction extends to Manhattan, the Bronx, Brooklyn, Queens and Staten Island.

 Defendant S. Frank Raftery is President of the International, and defendant Michael Di Silvestro is the Vice President thereof. *fn1"

 Jurisdiction is founded on § 102 of the LMRDA of 1959, 29 U.S.C. § 412. Judge Lasker of this Court held, in denying a motion to dismiss the complaint in Schonfeld v. Raftery, 335 F. Supp. 846 (70 Civ. 2544) that this Court has subject matter jurisdiction under 29 U.S.C. § 412. Judge Lasker also held that these actions are not barred, either by res judicata or collateral estoppel by previous decisions in Robins v. Rarback, 325 F.2d 929 (2d Cir. 1963), cert. denied, 379 U.S. 974, 13 L. Ed. 2d 565, 85 S. Ct. 670; Schonfeld v. Caputo, 61 Civ. 2223 (S.D.N.Y. June 12, 1964); or a prior case also entitled Schonfeld v. Raftery, 271 F. Supp. 128 (S.D.N.Y. 1967) ("Schonfeld I"). The question of subject matter jurisdiction remains a difficult one, and is considered infra, p. 390, et seq.

 Organizational Structure.

 The Council is composed of about 28 local unions affiliated with the International. Plaintiffs classify seven of these as "autonomous" locals: Local 206 (glass handlers), Local 230 (sign writers), Local 806 (steel and bridge painters), Local 829 (scenic artists), Local 1087 (glaziers), Local 1456 (maintenance painters) and Local 1974 (tapers). Twenty-one locals composed of painters and paperhangers are designated in the complaint as "painters'" locals: Nos. 51, 121, 261, 442, 454, 472, 490, 509, 645, 795, 803, 848, 874, 893, 905, 977, 1011, 1035, 1507, 1511 and 1969.

 The classification of "autonomous" contrasted with "painters'" locals is a somewhat artificial, but important distinction adopted by plaintiffs for purposes of this litigation.

 A primary but not complete differentiation between autonomous and painters locals is found in the per capita payments made by the locals for support of the Council. Most bodies characterized as painters' locals pay $3.00 per member per month, plus administrative dues equal to 1% of each member's gross wages. This averages $9.00 per month. Most autonomous locals pay only $.10 per member per month. However, Local 1969, consisting of painters employed through civil service, alleged to be a painters' local, pays $5.00 per member per month. It bargains through the Council, but the Council does not pay the salary of or provide a business agent. Local 977 also claimed to be a painters' local, pays $.10 plus 1%, and also has no business agent provided by the Council. Its members are employed as decorators and muralists and do graining and marbelizing, at wages generally higher than received by other painters. Local 1456, whose members are engaged as maintenance painters in hotels and large complexes, which is considered autonomous by plaintiffs, pays $5.00 per capita, but the Council does pay its Business Agent.

 The relationship of the autonomous locals to the Council differs in several respects from that of the painters' locals. The basic collective bargaining agreement governing the wages and working conditions of the painters' locals in the jurisdiction, known as the "Trade Agreement", is negotiated by the Council with the Association of Master Painters and Decorators of the City of New York, Inc. The Council generally does not engage in collective bargaining on behalf of the autonomous locals, which negotiate and administer their own collective bargaining agreements with employers. The autonomous locals need not obtain approval of the Council of the terms of such agreements.

 The paperhangers present an exception. They bargain autonomously, for terms which are included as a separate provision within the Trade Agreement, some of the general terms of which are also applicable to paperhangers. Yet, paperhangers pay the same full per capita as painters, and their business agent is paid by the Council.

 The autonomous locals for the most part maintain their own insurance funds separate and apart from the Painting Industry Insurance Fund, which is administered by the Council for the benefit of members of the painters' locals.

 The record does not permit a satisfactory resolution of the question "[how] is the question of whether a particular local is, or is not, autonomous, to be determined?" We think the best index is whether the Council controls collective bargaining, or pays and supervises the Business Agent. Some are clearly hybrid or semi-autonomous by this criterion. But for purposes of these findings, we adopt plaintiffs' admittedly imperfect classification, believing that the failure of perfect symmetry is, for our purposes, unimportant.

 All locals elect delegates to the Council. The number of delegates is determined by the size of the membership of the local. Each local is entitled to one Council delegate. A local of 100-499 members has two, a local of 500-999 members has three, and locals having membership of 1,000 will be represented by four delegates on the Council, with an additional delegate for each 500 members or major fraction over 1,000. The painters' locals, whose total membership on June 30, 1972 was 8,292, are represented on the Council by 49 delegates. The autonomous locals, whose total membership on June 30, 1972 was 4,449, are represented on the Council by 17 delegates. The autonomous local delegates comprise slightly more than 25% of the total number of Council delegates. *fn2" The delegates function as the legislative body of the Council. Almost all actions of the Council must be approved or authorized by a majority vote of the Council delegates.

 The Council delegates also elect all officers of the Council, with one exception, the Secretary-Treasurer. The delegates elect the President and Vice-President of the Council, the three trustees and the Warden. The Secretary-Treasurer of the Council is the only officer of the Council who is elected directly by the membership of each local affiliated with the Council. The members of both the painters' and autonomous locals vote in elections for the office of Secretary-Treasurer, and members of autonomous locals as well as of painters' locals are eligible to be nominated and elected to that office. Nomination is made by a local union, rather than by members or groups of members. *fn3"

 The Position of Secretary-Treasurer -- Its Significance.

 Just as does any representative body, the Council functions in part according to the formal provisions of its By-Laws, and in part by the observance of time-honored, unwritten customs and traditions. It is from both sources that we must ascertain the duties and powers of the Secretary-Treasurer, and its significance.

 The By-Laws, (Exhibit F-2) provide that the Secretary-Treasurer may call special meetings of the District Council (IV-5), he shall not be eligible to be a delegate to the Council (V-3), the Council may delegate to the Secretary-Treasurer the power to order job or shop strikes, such power to be exercised in conjunction with any of the Business Agents, *fn4" he may appoint not more than one assistant from a local union and is elected for a three year term (VII-3, 4).

 As the Secretary-Treasurer is the only full-time officer of the Council, it is not surprising that Section 7 of Article VII requires him to receive daily reports of the Business Agents, and to make a detailed record to read at the weekly meetings of the Council; to maintain a file of all shop reports and complaints from members and keep the Business Agents informed of all matters that will assist them in the discharge of their duties.

 In addition, he has the normal functions of a Secretary and Treasurer, keeping a correct record of the proceedings and orders of the Council, attesting all money orders drawn on the Council and recording communications, the names and addresses of the delegates and committees, preparation of the minutes, and a record of out-of-town employers functioning within the district, all as required by Section 7 of Article VII. In this latter connection he is required to "see to it that at least 75% of the members employed on jobs of such employers are members of local unions affiliated with the Council" (ibid); he receives all monies, and records the names of all applicants for membership and of all apprentices, and is bonded in the amount of $50,000.00. He is authorized to appoint an Assistant Secretary "from amongst the elected Business Agents" (ibid).

 The importance of the position is recognized by Section 12 of Article VII, which provides that in the event of death, resignation or removal, a temporary Secretary-Treasurer may be appointed for a period not exceeding four weeks during which period "the Council shall send out to the local unions for a referendum vote to determine whether an election for Secretary-Treasurer shall be held by the members, or whether the appointee shall fill the vacancy for the duration of the unexpired term".

 Business Agents must make daily written reports to the Secretary-Treasurer (VII-2) and he presides over the regular weekly Business Agents meeting, and prefers charges against Business Agents accused of wrongdoing. All violations of the Trade Agreement are reported to the Secretary-Treasurer. The Secretary-Treasurer investigates these violations and prefers charges.

 The Trade Agreement regulating the painters' wages and working conditions is negotiated by the Council's Agreement Committee. This Committee is composed of one representative of each painters' local. The Secretary-Treasurer has not in practice been a "voting member" of this Committee. However, he does make recommendations to the Agreement Committee as to the substantive and tactical positions it should take in the complex and highly stylized collective bargaining process. In practice, the Secretary-Treasurer usually acts as the chief spokesman for the Agreement Committee in its negotiations with the employers association.

 The Secretary-Treasurer "certifies" the shop stewards and job stewards of the painters' locals. He has the power to withhold a certification. The Secretary-Treasurer appoints the union representative to the Joint Trade Board and the Joint Coordinating Committee, union-employer committees which supervise and regulate enforcement of the Trade Agreement. The Secretary-Treasurer presents the union position in any arbitration under the Trade Agreement.

 The Secretary-Treasurer also acts as co-chairman of the Joint Industry Board, a union-employer board which makes and implements rules and regulations governing working conditions of the painters which, however, may not be inconsistent with the Trade Agreement.

 The Secretary-Treasurer assigns the Business Agents of the painters' locals to designated territories and duties, and rotates or changes their assignments from time to time in order to forestall corruption. *fn5"

 The By-Laws indicate the importance of the Secretary-Treasurer's job to all constituent local unions and the members thereof. They also sustain plaintiffs' assertions that the functions of the Secretary-Treasurer and the manner in which his work is performed is of a special significance to the painters' locals, since he is of necessity concerned with the day to day enforcement of the Trade Agreement, a matter of much less significance to the members of autonomous locals.

 Leaving the By-Laws and viewing the position from a practical aspect, it must be obvious that any Secretary-Treasurer under the framework and organization of the Council is confronted daily with issues which arise between Business Agents and members of the painters' locals, between Business Agents and employers, between local unions and between locals and the Council.

 Many of such matters obviously are settled according to precedent and tradition, or by discussion, compromise and informal resolution of controversies, all as a part of the day to day operations of the job of Secretary-Treasurer. The cumulative effect of this quasi-judicial function in the trade, performed regularly by the Secretary-Treasurer, is vital to the craft; how it is done can advance or set back working conditions as much or more, in the long run, than can achievements or failures at the bargaining table.

 It is natural that plaintiffs and members of painters' locals would be concerned that this position should not, by election, fall into the hands of a person belonging to an autonomous local, engaged in an allied trade, and not directly affected by the Trade Agreement. This has not taken place, historically, since the autonomous locals were granted affiliation with the Council and voting rights, but this is not to say that such a result could not ensue. *fn6"

 A Substantial Question is Raised.

 It follows that plaintiffs have raised a substantial question, which at least in theory affects directly, the conduct of their collective bargaining and administration of their union affairs. Plaintiffs are aggrieved by the existing structure, in that persons in autonomous locals whose collective bargaining is not administered by the Secretary-Treasurer, have considerable weight in his election, which they, voting as a bloc with a minority of the painters, could effect, possibly against the wishes and opinions of those whose rights are so affected.

 It remains to be determined, however, what the solution is for this problem; is it cognizable under Title I of the LMRDA? If so, what is the nature and extent of the practicable judicial remedy which may be granted? Have plaintiffs exhausted their intra-union remedies?

 Intra-union Procedures.

 In early 1969, the so-called "painters' section amendment" to Council By-Laws, was submitted to a referendum vote. Only the members of painters' locals were permitted to vote in that referendum. On February 14, 1969, the painters' section amendment to the Council ...

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