The opinion of the court was delivered by: SIFTON
This is an action brought pursuant to Section 102 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. 412.
Specifically, plaintiff alleges in his first amended complaint that he has been denied the rights of membership in defendant Local 101, Utility Division, Transport Workers Union, AFL-CIO ("Local 101") as a result of being refused membership in that Local in violation of 29 U.S.C. §§ 411(a)(1) and 529.
He seeks declaratory and injunctive relief directing Local 101 to admit him to membership in the Local, retroactive to September 30, 1980.
Shortly after filing this action, plaintiff moved for a preliminary injunction. With the consent of the parties, the trial of the action has been advanced and consolidated with the hearing of the application for preliminary relief pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure ("FRCP"). Trial was had before the undersigned, sitting without a jury on March 9, 1981. What follows sets forth the undersigned's findings of fact and conclusions of law, as required by Rule 52(a), FRCP.
Plaintiff, George Rondinelli, is an employee of Brooklyn Union Gas Company, Inc. ("BUG"), a public utility whose service area covers Staten Island, Brooklyn, and part of the Borough of Queens. Mr. Rondinelli was first employed by BUG as a laborer in 1962. Thirty days after he was first employed he became a member of Local 3 of the International Brotherhood of Electrical Workers, AFL-CIO ("Local 3"). In 1970 he became a shop steward for Local 3, and since 1974 he has been the Chairman of the Local 3 bargaining unit at BUG a position he continues to hold, along with his membership in Local 3, to date. Within BUG he has risen through various so-called "physical" jobs as laborer, helper, and "A" mechanic. In November 1979, following several unsuccessful attempts to transfer to what he considered a better position,
plaintiff secured a job as a service application inspector in the marketing and advertising division of the company.
Plaintiff is a New Jersey resident and prior to 1979 worked exclusively in Staten Island, as, it appears, do all the other members of Local 3 who are employed by BUG. Pursuant to agreement, the Local 3 bargaining unit at BUG, whose membership is approximately 250, is the certified representative of BUG's employees who work in Staten Island. Local 101 is certified by the NLRB to represent all BUG employees "working in or permanently assigned to operations in the Boroughs of Brooklyn and Queens, New York." When plaintiff took the position as service application inspector,
he was told that he would have to work in Brooklyn one or two days a week. As it has turned out, plaintiff has had to work in Brooklyn and Queens approximately 70% of his time. In addition, he picks up and leaves off paper work connected with the job at the company's principal offices in Brooklyn at least once a week.
Prior to starting his new job, plaintiff was told by a BUG official that the company would have to get the "okay" of the President of Local 101 to have plaintiff work at least part of his time on "this side of the water," i. e., in Brooklyn; and he was given assurances by the same official that this had been done. (Whether it was done in fact is not established by the evidence, since neither of the two Presidents of the local who testified was questioned on the subject.) Whatever the significance of this exchange, if it occurred, there is no basis for believing that the President of Local 101 at this point was conceding that, by working part of his time in Brooklyn, plaintiff became entitled to representation by Local 101 or to membership in it.
Nor, despite his having been put on notice as to the anomaly of his position as a Local 3 member working in part in a Local 101 area, did plaintiff take the position he presently espouses that he is entitled to membership in Local 101 for some time after his taking his new job, despite the provisions of Local 101's by-laws requiring all employees within the Local 101 bargaining unit to become members within 30 days of employment. BUG as well did not consider plaintiff as eligible for Local 101 membership, since it failed to notify the Local of his new position, despite its usual practice of doing so when any new member of the bargaining unit was hired. The Local 101 delegate in the marketing and advertising division, Mr. O'Hara, welcomed Mr. Rondinelli as a new fellow employee in the department. However, apart from astutely recognizing the problems presented by having the Chairman of the Staten Island Local working at least a part of his time in the Local 101 area, Mr. O'Hara took no steps to have plaintiff admitted to membership.
Plaintiff conceived of the idea of applying for membership in Local 101, while at the same time remaining a member of Local 3, during the course of the contract negotiations by both Locals for new contracts in the summer of 1980 some nine months or more after he first took his new job. During the course of these negotiations plaintiff arrived at the conclusion that he, his fellow members of Local 3, and the members of Local 101 had been forced to accept a contract less favorable than the one which could have been obtained by a coordinated bargaining effort on the part of the two Locals, as a result of defendant Corapi's negotiating efforts carried on independently of Local 3. Thereafter, plaintiff told defendant Corapi that he intended to become a member of Local 101 with the expressed purpose of displacing defendant Corapi as President of Local 101. In response, defendant Corapi inquired as to Local 3's position with regard to plaintiff's desire to become a member of Local 101.
By letter of September 30, 1980, plaintiff wrote Corapi requesting an application form
and enclosing a personal money order to cover the $ 25 initiation fee as well as a letter from the Local 3 Business Representative, stating:
"George Rondinelli, Jr. has indicated to me that he would be better able to function in his position with the Brooklyn Union Gas Company as a member of Local 101. Local # 3 would have no objection to this as long as he maintains his good standing in our organization."
By letter of October 6, 1980, defendant acknowledged receipt of plaintiff's letter and stated:
"I will raise this issue at our next Executive Board Meeting. I am returning your $ 25.00 check pending a decision."
Plaintiff responded to this letter by letter dated October 9, 1980, again forwarding his initiation fee and stating, inter alia:
"I would like to know if every new member's name submitted to the Executive Board of Local 101 T.W.U. has to be approved, and have any new members requesting membership with Local 101 ever been turned ...