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GATES v. DALTON

November 30, 1977

LEROY GATES, Individually and on behalf of all other members of Local 14-14B International Union of Operating Engineers, Plaintiffs,
v.
RALPH DALTON, as President, GEORGE F. PUGH, as Treasurer and THOMAS J. NOLAN as Business Manager and Financial Secretary of Local 14-14B, International Union of Operating Engineers, AFL/CIO and LOCAL 14-14B, International Union of Operating Engineers, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

 NEAHER, District Judge.

 Plaintiff Leroy Gates brought this class action for declaratory, injunctive and other relief claiming that the defendants, Local 14-14B of the International Union of Operating Engineers and its officers, violated § 101(a)(3)(A) *fn1" of the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(3)(A), by (1) failing to provide the membership with reasonable notice of intention to vote on an increase in their work assessment dues, and (2) improperly presenting the question of the work assessment in compound form to the members for a vote. On July 8, 1975, in an opinion reported at 67 F.R.D. 621, the court denied defendants' motion for summary judgment because genuine material issues of fact concerning both claims remained unresolved. *fn2" The action was thereafter tried on the merits without a jury and this memorandum contains the court's findings of fact and conclusions of law. Rule 52, F.R.Civ.P.

 As noted in the court's prior opinion, certain background facts are not in dispute. In 1969 Local 14-14B negotiated a three-year increased wage contract with employer associations. The contract included for the first time a non-contributory annuity plan for the benefit of union members and a ten-cent per hour dues check-off to cover a work assessment voted by the membership in order to meet the Local's financial needs. This controversy arose during the negotiations for a new wage contract covering the three-year period commencing July 1, 1972. In the interim, the Local had acquired a building to be used as its new headquarters after renovations had been completed. This placed an additional drain on the Local's finances. To solve that problem the Local's negotiators proposed to seek a 35 cent increase in the hourly wage rate rather than 30 cent offered by employers, the 5 cent additional to be allocated to dues check-off so as to increase the members' work assessment from 10 cent to 15 cent an hour.

 A principal factual dispute which prompted the court to deny defendants' motion for summary judgment was raised by plaintiff Gates' claim that the members had not been given any notice whatsoever of an intention to change the Local's dues structure at a meeting to be held on June 9, 1972. The evidence at trial, however, did establish that defendant Nolan sent the following mimeographed circular letter, dated May 23, 1972, to the membership:

 
"Dear Sir and Brother:
 
"Many of our members have been inquiring about our new building in Flushing. We are pleased to announce that, after months of litigation with the Building Department and our prospective tenants, the Day Room and Business Office will be opened on or around July 1st, 1972. The rest of our Offices to be occupied by the Union will be completed shortly afterwards.
 
"Our next regular meeting on June 9, 1972 will be a special meeting to discuss further financing of the building and a possible change in our dues structure.
 
"We urge all our members to attend."

 That factual dispute must therefore be resolved against plaintiffs. Whether the letter constituted sufficient notice under LMRDA is another question which will be discussed below.

 A further key factual dispute must also be resolved against plaintiffs. Plaintiff Gates and his two witnesses maintained in addition that no proper balloting or voting procedure was followed at the June 9 meeting at which the members present and voting approved the negotiators' proposal referred to above. Instead, it is asserted, only slips of papers were handed around with the words "Guilty" or "Not Guilty" on them to indicate for or against the proposal. Again, the evidence at trial is conclusive that the following mimeographed ballot form was used:

 
"BALLOT
 
SHALL LOCAL # 14-14-B NEGOTIATE FOR AN ADDITIONAL FIVE (5) CENTS PER HOUR TO BE ADDED TO THE DUES CHECK-OFF ON ...

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