The opinion of the court was delivered by: WEXLER
Plaintiffs have moved to amend their complaint, for class certification, and for partial summary judgment. Defendant Wallack has moved for summary judgment and to strike plaintiffs' jury demand. Defendant Local has moved for summary judgment.
We see no reason to deny plaintiffs leave to amend their complaint. Accordingly, the proposed second amended complaint may be filed.
Plaintiffs' version of the facts is as follows:
In June 1982 defendant Wallack Freight Lines, plaintiffs' employer, proposed a one-year rider to a pre-existing contract between the employer and the defendant union local. The rider included a provision for a five-day work week and a ten-hour work day without overtime pay. The local conducted a vote on the rider. The vote was 23-12 against the rider. Ten days later, without advanced notice, the local conducted a second vote. The vote was 18-17 in favor of the rider, with 3 union members not present. The local then executed the rider.
In August 1982 plaintiff Legutko circulated a petition among his co-workers. The petition requested the International Union to intervene. The employer's officer took the petition from Legutko and threatened to fire him if he circulated the petition any further.
In June 1983 the local conducted a vote on whether to extend the rider for another year. The vote was 22-12 against extension. Despite the vote, the local executed an extension of the rider, contending that a two-thirds majority was required for rejection of the extension.
In August 1983 plaintiff Legutko asked the International Union to intervene. It did not do so.
In June 1984 the local again conducted a vote on the rider. The vote was 23-18 against the rider. The local did not execute the rider. The employer began paying overtime. In September 1984 the local conducted a second vote. The vote was 36-12 in favor of the rider.
Plaintiffs assert nine causes of action:
1. The June 1982 execution of the rider by the local following its initial rejection by a majority of the membership and subsequent approval by less than a majority of the total membership in a vote taken without advanced notice violated the International Union's constitution, and so violated 29 U.S.C. § 185 and state comm law.
2. and 3. The June 1982 actions by the local violated 29 U.S.C. § 411(a)(1), which concerns equality of union member voting rights.
4. The June 1983 execution of the rider by the local despite its rejection by a majority vote violated the International Union's Constitution, and so violated 29 U.S.C. § 185 and state common law.
5. The June 1983 action by the local violated 29 U.S.C. § 411(a)(1), which concerns equality of voting rights.
6. The employer's failure to pay overtime breached the contract as the contract would have read without the rider, in violation of 29 U.S.S. § 185.
7. The employer's failure to pay overtime violated 29 U.S.C. § 207(a)(1), which concerns overtime.
8. The September 1984 decision by the local to conduct a second vote violated 29 U.S.C. § 411(a)(1), concerning equality of voting rights. Plaintiffs also assert a claim against the International Union for its failure to intervene since August 1983, although the legal basis for this claim appears ambiguous.
9. The August 1982 threat by the employer's officer to discharge Legutko if Legutko continued to circulate a petition ...