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DISTRICT COUNCIL 37 v. WURF

June 6, 1980

DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, and Arthur Tibaldi, as Treasurer of District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO, Plaintiffs,
v.
Jerry WURF, as President of American Federation of State, County and Municipal Employees, AFL-CIO, and American Federation of State, County and Municipal Employees, AFL-CIO, Defendants, and James Butler, as President of New York City Department of Hospitals, Local 420,American Federation of State, County and Municipal Employees, AFL-CIO, Intervenor



The opinion of the court was delivered by: OWEN

MEMORANDUM AND ORDER

Before me is a motion for a preliminary injunction. Plaintiff, District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO ("D.C. 37" or the "Council"), seeks a declaratory judgment that a certain resolution (the "Resolution") of its superior body, the International Executive Board ("I.E.B.") of the American Federation of State, County and Municipal Employees, AFL-CIO ("AFSCME" or the "International"), is unlawful, null and void. The Resolution, dated October 16, 1979, concerns the staffing and payment of the representatives serving a local union affiliated with D.C. 37. *fn1" Normally, these services are provided by D.C. 37, but the Resolution in question has altered this arrangement, permitting the local to select and finance its own staff. The local union involved, the New York City Department of Hospitals, Local 420, American Federation of State, County and Municipal Employees, AFL-CIO ("Local 420"), intervened in this action, and now moves for a preliminary injunction to compel D.C. 37 to comply with the original I.E.B. Resolution and a subsequent resolution implementing the October 16, 1979 resolution.

 The instant dispute appears to have been generated by political tensions that developed between Local 420's President, James Butler, and D.C. 37's Executive Director, Victor Gotbaum. In November 1978, D.C. 37 launched an investigation into allegations that Butler had failed to properly account for substantial amounts of union funds expended by him. At the direction of Victor Gotbaum, D.C. 37 Staff Representatives informed members of Local 420 of the charges against Butler. The Staff also advised Local 420 members that they had a right to demand an accounting from Butler. *fn2" The Local 420 Executive Board (the "Local 420 Board") and Butler regarded these activities as an unjustified attempt by D.C. 37 and Gotbaum to undermine the authority of Local 420's officers. In retaliation, the Local 420 Board determined to prevent the D.C. 37 staff from further serving Local 420. Local 420 presented its grievances to the I.E.B. seeking, among other things, reimbursement of the costs of securing its rights and permission to disaffiliate from D.C. 37. After an unsuccessful attempt to get the parties to agree upon Local 420's field staff, the I.E.B. issued the Resolution which is the subject of this action. *fn3"

 The Resolution directs that Local 420 select its own field staff which would be independent of D.C. 37's supervision and control. To effectuate this purpose, the Resolution also empowers Local 420 to finance its staff with dues formerly paid to D.C. 37. Specifically, the Resolution provides for Local 420 to receive its dues directly *fn4" and to retain a portion of the per capita taxes which are payable to D.C. 37 under the AFSCME and D.C. 37 constitutions.

 The question presented is whether the I.E.B. exceeded its authority in adopting the October 1979 Resolution to resolve the Local 420-D.C. 37 dispute. *fn5" Local 420 claims that the I.E.B. acted pursuant to its general powers under the AFSCME Constitution to govern the Union and to determine all matters with regard to the affiliation, chartering, and jurisdiction of subordinate bodies. The intervenor also relies on provisions of the AFSCME Constitution which vest the I.E.B. with the authority to adjust per capita taxes and to determine whether a council is entitled to such taxes. D.C. 37 contends that the I.E.B. Resolution violates the AFSCME Constitution because it purports to fundamentally alter the well-defined duties and responsibilities of AFSCME, D.C. 37, and Local 420 under their respective constitutions. Fundamental changes of this nature, according to D.C. 37, may be accomplished only by a constitutional amendment duly passed by the union membership. *fn6" Moreover, D.C. 37 points out that the AFSCME Constitution provides alternative means of resolving the dispute in this case which the I.E.B. did not pursue. *fn7"

 A careful review of the applicable sections of the union constitution lends support to plaintiffs' position that the I.E.B. Resolution is unenforceable. The intervenor has not demonstrated that the AFSCME Constitution vests the I.E.B. with the authority to fundamentally change the ongoing relationship of a council and its affiliated local. Short of permitting a local to completely sever its affiliation with a particular council, which the I.E.B. is empowered to do, AFSCME Const. art. IX, § 19; art. V, § 6; art. IX, § 1, *fn8" the I.E.B. does not appear to be authorized to restructure the existing relationship between a local union and its district council. Thus, as the "highest legislative and policy making body" of AFSCME, art. VII, § 1, the I.E.B. clearly had the power to decide, for example, whether Local 420 should be affiliated with D.C. 37. Art. IX, § 19; art. V, § 6; art. IX, § 1. *fn9" In this case, however, while permitting the continued affiliation of Local 420 and D.C. 37, the I.E.B. has attempted to interfere with the Council's ability to service its local directly. This form of partial affiliation is on its face inconsistent with the AFSCME Constitution which mandates that a local must either affiliate with a council and pay per capita taxes or be independent of any council. Art. IX, § 19. *fn10"

 Local 420 also relies on the following more narrowly drawn provisions of the AFSCME Constitution as specific authority for the Resolution: art. IX, §§ 5, 6, 19, 41; art. X, § 2.C. These sections do not appear to support the constitutionality of the I.E.B. Resolution.

 
Article IX, Sec. 6
 
Under special circumstances, which shall be clearly described in the request, the International Executive Board or the International President, subject to the approval of the International Executive Board, may, at the request of a subordinate body, approve for limited and specifically defined periods of time the establishment of a different dues or per capita rate for a subordinate body, except that in no case may the International Union per capita tax rate be diminished. . . .

 This section, entitled "Adjustment of Dues Rate," empowers the I.E.B. to approve for a limited period of time a different dues or per capita rate for a subordinate body. Read in context, it appears to relate only to the narrow area of increases or decreases of prescribed AFSCME dues and per capita taxes. It does not expressly authorize a local to retain portions of council per capita taxes for its own use. *fn11"

 
Article IX, Sec. 5
 
The minimum dues of any local . . . shall be not less than eight dollars per month . . . . In the case of any local which is not affiliated only with an AFSCME Council which does not have as a primary purpose the providing of staff assistance for organizing, servicing and negotiations at the local union level, the allocation shall be as follows: five dollars and ten cents to the local, and two dollars and ninety cents as per capita tax to the International Union.

 This section merely provides for a lower minimum dues rate from locals not affiliated with a council or affiliated with a council which does not provide local staff assistance as its primary purpose. The D.C. 37 Constitution, art. II, § 1, e, expressly provides that one of its primary objectives is to offer its affiliated unions staff assistance at the local level for "organization, representation, research and education, as well as legal and accounting services and the necessary technical facilities." It would be absurd to hold that art. IX, sec. 5 empowers the I.E.B. to unilaterally order D.C. 37 to violate its constitution by withdrawing its field ...


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