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June 10, 1986

WILLIAM PERRY, as President and on behalf of LOCAL 6, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, an Unincorporated Association, Plaintiff,

The opinion of the court was delivered by: SWEET


 Defendants International Longshoremen's Association, AFL-CIO ("ILA") and Thomas W. Gleason ("Gleason") in these related actions have moved pursuant to Rule 56(b), Fed.R.Civ.P., for summary judgment dismissing the complaint in Case No. 84 Civ. 4866 ("Action No. 1") and dismissing the counterclaim in Case No. 84 Civ. 4898 ("Action No. 2") on the grounds that no material disputed issues of fact exist and that ILA and Gleason are entitled to judgment as a matter of law. Plaintiffs William Perry ("Perry") and Local 6, International Longshoremen's Association, AFL-CIO ("Local 6") have cross-moved for an order pursuant to Fed.R.Civ.P. 56 for partial summary judgment against the ILA and Gleason for certain breaches of the ILA Constitution and for violations of Federal Labor Statutes. Finally, Perry and Local 6 have moved to dismiss the complaint of plaintiff-counterclaim defendant Local 945, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, ("Local 945") in Action No. 2 on the grounds the claim is barred by the doctrine of res judicata. For the reasons set forth below, the ILA's motion for summary judgment in Action No. 1 and on the counterclaim in Action No. 2 is denied in part and granted in part, Local 6's cross-motion for summary judgment is granted in part and denied in part, and the motion for summary judgment in Action No. 2 is granted, as the Local 945's no-raid pact claims are barred by the doctrine of res judicata.

 Prior Proceedings

 On July 11, 1984, Local 945 filed Action No. 2 and moved by order to show cause before the Honorable Leonard B. Sand for an order temporarily restraining Local 6 from participating in the representation election of the Newark, New Jersey public works employees. After a hearing on July 12, 1984, Judge Sand denied the temporary restraint. On August 2, 1984, Perry and Local 6 moved for consolidation of Action No. 2 with Action No. 1 pending before this court. Actions 1 and 2 were thereafter consolidated for all purposes on August 24, 1984, and depositions in these actions have been conducted jointly. Oral argument on the instant motions was heard on March 14, 1986.


 These related actions arise out of a dispute between Local 6 and its former international union, the ILA, and the presidents of both labor organizations. Local 6 was chartered by the ILA in 1972 under the name Local 1981 with a new charter issued in 1973 and was authorized to organize medical paraprofessionals and allied personnel who were without a valid labor union contract with employers located or represented in the United States. Prior to its affiliation with the ILA, Local 6 had organized employees in fields other than health care.

 In 1982, Local 6 began a drive to organize seamen aboard Flag of Convenience ("FOC") vessels, or ships owned or chartered by United States companies but registered in foreign countries. Prior to 1982, many crew members aboard these vessels were represented by foreign labor organizations affiliated with the International Transport Workers Federation ("ITF"), an international federation of unions affiliated with the ILA. During the time period of these events, Gleason, ILA president, was an officer of the ITF. The ITF monitors or reviews the wages and working conditions of seamen on merchant fleets by issuing a "blue certificate" to vessels with collective bargaining agreements which meet the ITF's employment standards.

 In March, 1983, Local 6 and the ITF clashed over the organization of the OCEAN SKY, a vessel whose seamen were covered by a contract with Local 6. When the OCEAN SKY docked in Haifa, Israel, the ITF induced Israeli longshoremen not to service the vessel because, according to the ITF, the Local 6 contract was not in compliance with the ITF's wage and benefits scale. In response to this boycott, Local 6 instituted an antitrust action against the ITF, contending that members of the international maritime industry, including the ITF, the International Organization of Masters, Mates & Pilots ("MMP") and the National Maritime Union ("NMU") conspired to violated United States antitrust law. William Perry as President of Local 6, ILA, AFL CIO v. International Transport Workers Federation et al., No. 83 Civ. 2059 (CES).

 According to Local 6, both Gleason and the ILA knew of and acquiesced in Local 6's drive to organize foreign seamen and other employees outside the health care field. Perry claims that Gleason approved of his negotiations with Robert J. Lowen ("Lowen"), MMP president, to organize the FOC ships of the Standard Fruit Company Fleet, and never warned Local 6 that the ILA considered this activity to be outside Local 6's chartered jurisdiction. Gleason has denied acquiescence or approval of Local 6's organizing drives of FOC seamen. Indeed, Gleason contends that he warned Local 6 that such organizational activity would be a violation of Local 6's charter.

 On May 15, 1984, William Hankard, Robert J. Lowen and Albert M. Cornette, ILA Vice-Presidents, filed disciplinary hearings against Perry and Local 6, charging that Local 6, inter alia : exceeded its jurisdiction by organizing foreign seamen, negotiated inferior contracts to those sanctioned by the ITF, misrepresented that its contracts had been issued blue certificates by the ITF, failed to file its collective bargaining agreements with the ILA, and subjected the ILA to disciplinary proceedings for failure to respect the representational rights of other AFL affiliates. Copies of these charges were forwarded to Perry and Local 6 on May 18, 1984, along with a notification that a committee would be appointed to conduct a hearing on these charges and would make recommendations to the ILA Executive Council. On July 18, 1984 the ILA Executive Council approved ILA Vice-President Benny Holland, Jr., ILA Vice-President Chauncey Baker, and ILA General Organizer Donald Carson as Chairmen to conduct these hearings on August 8, 1984. Although Perry and the ILA were advised of the hearing date and of their right to appear with counsel, produce witnesses and submit statements, Perry declined to appear, contending that the true purpose of the hearing was to cause Local 6 to withdraw its antitrust suit against the ITF and that their presence at the hearings would condone a biased and predetermined decision to sanction Local 6.

 The committee concluded that Local 6 had exceeded its jurisdiction, had entered into inferior contracts and had falsely represented that the ITF approved of its FOC vessel contracts. The committee recommended that Perry be expelled from the ILA and that Local 6's charter be revoked. On October 4, 1984, the ILA Executive Council convened in Bal Harbour, Florida, where the council unanimously adopted the committee's conclusions and expelled Perry and Local 6 from the ILA. Among those Executive Council members who voted to expel Local 6 from the ILA were Robert Lowen and Albert Cornette, two of the three ILA members who filed the original charges, and Gleason, ILA President. The ILA Executive Council informed Perry by letter of October 9, 1984 that the Local's charter had been revoked and that Perry was expelled from the ILA and informed the Local that it had the right to appeal this decision within thirty days to the ILA convention, which was to convene in July, 1986. No appeal was filed.

 The second dispute, at the core of Action No. 2, concerns Local 6's attempt to organize the approximately 400 "blue collar" workers or sanitation employees of the City of Newark, New Jersey, who had been represented by Local 945 ("Local 945") of the International Brotherhood of Teamsters ("IBT") since 1971. Local 945 is a member of the Joint Council No. 73, an affiliate of the IBT. On April 13, 1984, Local 6 filed a representation petition with the New Jersey Public Employment Relations Commission ("N.J.P.E.R.C.") seeking to become the certified bargaining representative for the sanitation workers upon the expiration of the collective bargaining agreement between Local 945 and the blue collar workers. Local 945 intervened in the proceeding to oppose the certification of Local 6, and Joel G. Scharff ("Scharff), the N.J.P.E.R.C. Administrator of Representation Proceedings conducted an administrative investigation concerning Local 6's petition and called a conference of interested parties where each submitted a written statement. Local 945 contended that a successor written agreement between Local 945 and the sanitation employees was a "contract bar" to Local 6's certification. On May 24, 1984, Scharff preliminarily concluded that this agreement was not truly negotiated and was not a contract bar but permitted both Locals to submit additional evidence on the question. On June 6, 1984, Scharff issued an opinion which concluded that Local 6 was not barred from representing these employees, and he directed a representation election.

 By letter of June 25, 1984, Gleason, on behalf of the ILA, informed Scharff that Local 6's drive to organize New Jersey workers violated an oral "no-raid" pact pursuant to which the IBT and the ILA agreed to refrain from seeking to represent workers already organized by either union. In reliance on this letter, Flen Chestnut ("Chestnut") president of Local 945, filed a request for review and for extraordinary relief with the N.J.P.E.R.C., asserting this twenty-year no-raid pact as a bar to Local 6's representation petition. This request for review was denied on July 10, 1984.

 On July 11, 1984, Local 945 commenced Action No. 2 and moved by order to show cause before the Honorable Leonard B. Sand for an order enjoining the Newark blue collar workers representation election scheduled for July 13, 1984. This application for an injunction was denied, and Local 6 was certified as the certified bargaining representative for these employees on August 7, 1984.

 Action Number 1

 In Action Number 1, Perry and Local 6 contend that the ILA breached its constitutional and fiduciary obligations towards Local 6 and tortiously interfered with Local 6's state law rights by interfering with the Local's attempt to organize FOC vessel seamen and New Jersey Sanitation Workers. Perry also contends that Local 6 was improperly expelled from ILA affiliation, in violation of the ILA constitution and the Free Speech and Fair Hearing provisions of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. 401 et seq. The ILA contends that on undisputed facts, it is entitled to judgment as a matter of law, as the ILA did not breach its constitutional or fiduciary duties and the ILA properly disciplined Local 6 and Perry.

 Perry and Local 6 have cross-moved for partial summary judgment on two aspects of its claims, one based on the ILA constitution, Articles XXIII, section 4, pertaining to employee wage scales, and the other based on the failure to provide a full and fair hearing on an internal union dispute as guaranteed in the ILA Constitution, Article XVIII, Section 4, and in section 101(a)(5)(C) of the LMRDA, 29 U.S.C. § 411(a)(5)(C).

 In evaluating these cross-motions, this court takes heed that in the Second Circuit, summary judgment is not lightly granted, as it deprives the non-moving party of the opportunity for full factual development of the record through trial. See Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975). A motion for summary judgment may not be granted "unless the entire record shows a right to judgment with such clarity as to leave no room for controversy, and establishes affirmatively that the adverse party cannot prevail under any circumstances", Heyman v. Commerce and Industry Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). All inferences will be drawn in favor of the party opposing the motion, United States v. Diebold, 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam).

 Charter Jurisdiction

 The ILA contends that it is entitled to prevail as a matter of law on Local 6's claim that the International breached its constitutional obligations by interfering with Local 6 organizational drives. In a blanket invocation of the International's right to structure its internal affairs free from interference, the ILA contends that any "reasonable" construction of its authority over the jurisdiction of Local 6, its power to discipline errant officers or locals, and its review of wage scales is entitled to complete deference by this court. Such an interpretation of this court's scope of review would, however, erase the jurisdictional grant in section 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), which vests this court with jurisdiction over disputes between a local union and its parent international union where it is alleged that one party has violated the international's constitution. United Association of Journeymen v. Local 334, United Association of Journeymen, etc., 452 U.S. 615, 69 L. Ed. 2d 280, 101 S. Ct. 2546 (1981); Local 644, International Photographers of Motion Picture Industry v. International Alliance of Theatrical Stage Employes, 563 F. Supp. 1334 (S.D.N.Y. 1983).

 While Article XII of the ILA constitution grants the ILA the authority to charter affiliated locals and determine the scope of the local's organizing drives, this authority does not preclude the court from examining the serious factual disputes which Perry and Local 6 have raised concerning the jurisdictional limits contained in the Local 6 charter. For example, Perry contends that Gleason and the ILA have had a past practice of permitting locals to continue to represent employees literally outside the confines of a local's jurisdictional grant, a contention not addressed by the ILA. Local 6 has produced documentary evidence that Gleason was aware of at least one Local 6's organizing drives which sought to organize clerical employees of the Bank of India, clearly employees outside the health care industry.

 Furthermore, the Perry and Gleason affidavits are at odds on the issue of Local 6's drive to organize the FOC vessel seamen, Perry contending that Gleason supported and encouraged the organization of these employees until he was reprimanded by the president of the ITF, and Gleason claiming that although he "bailed out" the local on three occasions, he warned Perry not to exceed Local 6's jurisdictional limits by organizing foreign seamen. Robert Lowen, charging party, ...

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