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PETRAZZULO v. LOWEN

January 12, 1982

Joseph N. PETRAZZULO, Eugene Laski and Arthur Sohnen, individually and on behalf of other members of the International Organization of Masters, Mates & Pilots, AFL-CIO, Plaintiffs,
v.
Robert J. LOWEN, Allen C. Scott, Lloyd M. Martin, Henri L. Nereaux, Orion A. Larson, Francis E. Kyser, Ernest V. Warhurst, Harry Walton, Robert Polumbo, John Craddock, Charlie Jess and Cecil Mayes, individually and as officers of the International Organization of Masters, Mates & Pilots or the Offshore Membership Group thereof, or as members or alternate members of the Ballot Committee thereof, and International Organization of Masters, Mates & Pilots, AFL-CIO, Defendants



The opinion of the court was delivered by: DUFFY

MEMORANDUM AND ORDER

Select members of the Offshore Membership Group of the International Organization of Masters, Mates & Pilots, AFL-CIO ("IOMMP") seek to enjoin the defendant IOMMP Union from enacting four propositions approved in a recent union referendum. The referendum was presented to the IOMMP union membership on July 29, 1981. September 30, 1981 was designated as the date to count ballots submitted on this referendum.

 On September 29, 1981, plaintiffs came before this court by Order to Show Cause seeking a temporary restraining order and a preliminary injunction. Plaintiffs allege that propositions 3, 4, 5 and 6 on the ballot are void due to improper conduct by the IOMMP and therefore plaintiffs request that this court prohibit the counting of the ballots and further prohibit the IOMMP from effecting any changes presented in the contested ballots. *fn1" A hearing was held on September 30, 1980. An order was signed on October 1, 1981 prohibiting any transfer of assets pursuant to proposition 6 until a judgment by this court was issued.

 The Offshore Membership Division of the IOMMP, now labelled the Offshore Membership Group, to which plaintiffs belong was merged into the IOMMP by a 1977 Constitution. This constitution provided that the assets of the Offshore Division, which total close to two million dollars, would be segregated from the International Union Treasury for a period of five years. Art. XIV, Section 4. The constitution also provides a dues structure for its membership and delineates the powers of the International President. Plaintiffs contend that the four challenged propositions constitute amendments to the 1977 constitution. All amendments to the constitution must be approved by "(1) a two-thirds' majority pro rata vote in a Regular, Special or Constitutional Convention; and (2) approved by a majority vote of the membership voting in a secret referendum ballot." Art. X, Section 1. Defendants concede that only the latter condition has been fulfilled, but assert that none of the propositions are amendments and therefore any majority vote of the membership constitutes ratification. *fn2"

 I. JURISDICTION

 The IOMMP Constitution provides in relevant part:

 
d) Every member shall have the right to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the Organization or its Officers are named as defendants or respondents in such action or proceeding.
 
However, every member shall be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within the Organization before instituting legal or administrative proceedings against the Organization or any Officer thereof.

 Art. III, Section 4. (emphasis added). Defendants argue that this section prohibits plaintiffs from institution of the instant lawsuit. The plaintiffs did unsuccessfully present their arguments in opposition to the proposed referenda to the IOMMP Ballot Committee (Transcript, p. 11). No appeal to the General Executive Board ("GEB") was ever filed, although the plaintiffs were notified that the GEB meeting would take place on October 5, 1981 in Linthicum Heights, Maryland (Affidavit of Lloyd M. Martin, Exhibit G).

 The Labor Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq., (1976 & Supp. III 1979), ("LMRDA") allows unions to include exhaustion requirements within their constitutions. 29 U.S.C. § 411(a)(4) (1976). Unions, however, cannot force their membership to abide by any exhaustion provisos. Giordani v. Upholsterers International Union, 403 F.2d 85, 88 (2d Cir. 1968). This court is empowered with the discretion to require exhaustion when the facts presented so merit. Johnson v. General Motors, 641 F.2d 1075, 1078 (2d Cir. 1981); Detroy v. American Guild of Variety Artists, 286 F.2d 75 (2d Cir.), cert. denied, 366 U.S. 929, 81 S. Ct. 1650, 6 L. Ed. 2d 388 (1961). At the same time, this court must respect the union's desire to settle their internal disputes free from judicial interference. Johnson, 461 F.2d at 1079.

 Plaintiffs are required pursuant to the IOMMP Constitution to exhaust "reasonable hearing procedures" in connection with their grievances. Failure to appeal to the GEB is not unreasonable under the circumstances. The ballots at issue were approved by the GEB on July 28, 1981. (Order to Show Cause and Temporary Restraining Order, Exhibit 1). The law does not compel plaintiffs to perform a futile act. The plaintiffs had made numerous complaints to the union in regard to these ballots and voiced numerous requests for financial information they deemed necessary to cast an educated vote. All these requests were rebuffed. It seems unlikely that the same committee which approved the ballots would subsequently reverse their position. The GEB is comprised of officials of the same union which out of hand refused to honor plaintiffs' requests.

 The union has failed to demonstrate that the plaintiffs' appeal option was "(1) adequate; (2) not futile; and (3) reasonable under the circumstances." Johnson, 641 F.2d at 1083. Thus, I am constrained to exercise jurisdiction over the instant case and proceed to resolution of the outstanding preliminary injunction motion.

 II. PRELIMINARY INJUNCTION

 Issuance of a preliminary injunction in the Second ...


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