Petition — Local Union No. 373, International Ass'n of Bridge, Structural, & Ornamental Ironworkers v. Mundy

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y~ Supreme Court, U. S

FILED

DEC 1 1978

IN THE

Supreme Court of the United.

Ocroser Term, 1978

No. " =“ 80

LOCAL UNION NO. 373, e¢ al.,

Petitioners,

MICWAEL ROUAK, JR,, CLERK |

vs.

PHILIP MUNDY, et ai.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

Tomas J. O’Ner,

Counsel for Petitioners,

60 Park Place,

Newark, New Jersey 07102.

(201) 6438-6300

Notan, Lynes, Beit & Moore,

Attorneys for Petitioners.

Joun J. MuLVrerLe,

On the Petition.

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102 ag 110

TABLE OF CONTENTS

PAGE

THE OPINIONS BELOW ............:c.ccccccccccceceecsses 2

JURISDICTION a . 3

ES RA NTO 3

FEDERAL STATUTE INVOLVED ...............cecsccsessscscscecesenencetaees 4

SPUATIRERIT GR THER CAGE n.ececccezecscecescccecscescscsssssteccssenmnese 5

Be I ND erectntitenscnisinntnseininsinenaesennciin 6

B. The New Jersey Courts’ decisions .................. 9

REASONS FOR GRANTING THE WRIT .............000..cccececceeseeeees 14

Conclusion Mt AI 17

APPENDIX:

Connell v. Local 483

Oral Decision of Polow, J.S.C. occ la

Eat SE, RR 29a

Mundy v. Local 373

Oral Decision of Furman, J.S.C. 0.000... 32a

ERTS SEERA cee ee 42a

Esposito v. Local 11

Letter Opinion of Dwyer, J.S.C. .....nne. 45a

Judgment 78a

ii TABLE OF CONTENTS

PAGE

Serafin v. Local 480

Oral Opinion of Ackerman, J.S.C. .0000002000....... 80a

Judgment .. <abataieiahabitlbcaaian 12G6a

Handley v. Local 45

Letter Opinion of Kentz, J.S.C. 000000. 129a

SN a AO at lca crc pihteosingcemvensebances 136a

Pertinent Text of Consent Decree .0000.000020000000...... 138a

Exeerpt from Transcript of Proceedings:

Ry RE OR RET CL 139a

I CN a ccinnensesbllenesade 144a

EEOC Determination Letter re: Gilbert Jones .. 147a

Per Curiam Opinion of New Jersey Superior

Court, Appellate Division ........0.00000..0..... ... 150a

Order of New Jersey Supreme Court Denying

Petition for Certification 2......0.2.....cccccccscscscsesseees 158a

Order and Opinion Dismissing Petition for In-

SII Sk bili ste Sictenpanabicidtainapsbtoltnatcoginatinabseisastlasntiie 159a

Order of Hon. John J. Gittons, C Cireuit Judge 166a

Cases Cited

Black and White Children of the Pontiae School

System v. School District of Pontiac, 464 F.2d

ET A As IUD Gaisiconiastincnthccsgbtcbiassiaesbcnsicineéusssaeanoans 15

Bridgeport Guardians, Ine. v. Members of the

Bridgeport Civil Service Commission, 482 F.2d

1333 (2d Cir. 1973), cert.den. 421 U.S. 991, 95

S. Ct. 1996, 44 L, Ed. 2d 481 (1975) oo 10

TABLE OF CONTENTS ili

PAGE

Burns v. Board of Sch. Comm. of City of Indian-

apolis, Inc., 487 F.2d 1143 (7th Cir, 1971) .............. 15

EEOC v. Local 638, 532 F.2d 821 (2d Cir. 1976) ...... 16

Lige v. Town of Montelair, 72 N.J. 5 (1976) ................ 11

Martini v. Republic Steel seavinde 532 F.2d 1079 (6th

oe | ee “ 15

MeAleer v. A.T.&T., 416 F. Supp. 485 (D.D.C. 1976) = 11

Moore v. Local 483, 66 N.J. 527 (1975) 2.22... sesesoeeee 3, 10

Oburn v. Shapp, 70 F.R.D. 549 (E.D. Pa. 1976), aff’d

546 F.2d 418 (3rd Cir. 1976), cert.den. —— U.S.

—, 97 S.Ct. 1650, —— L.Ed.2d —— (1977) ........ 15

Regents of University of California v. Bakke, ——

U.S. ——, 98 S.Ct. 2733, —— L.Ed.2d —— (1978)..14, 16

Rios v. Enterprise Ass’n Steamfitters Local 638,

GOR Fd GES (Bk Cah: TOGRD csi 16

United States v. Ironworkers Local 86, 443 F.2d

544 (9 Cir.), cert.den. 404 U.S. 984, 92 S.Ct. 447,

BO TDG TT CR acre icii entice 16

Statutes Cited

SD AG SE Cy teinceipniadnectnptetgsniniraaieeniies 3

UB. se Oe a eee 4,16

IN THE

Suprene Court of the United States

October Term, 1978

No.

LOCAL UNION NO. 373, et al.,

Petitioners,

vs.

PHILIP MUNDY, e¢ al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

Petitioners, International Association of Bridge, Struc-

tural and Ornamental Ironworkers, Local Unions Nos. 11,

45, 373, 480 and 483, AFL-CIO, respectfully pray that a

Writ of Certiorari issue to review a judgment entered by

the Superior Court of New Jersey, Appellate Division, in

five consolidated cases. <A Petition for Certification to

review the judgment was denied by the New Jersey Su-

preme Court on September 5, 1978.

Opinions Below

Petitioners were defendants in five separate state court

proceedings involving the identical issues. These cases

are as follows: George Connell, et al. v. Local 483, et al.

(Docket No. C-4484-74) and Jack Iespelt, et al. v. Local

483, et al. (Docket No. C-2157-75) ; Philip Mundy, et al. v.

Local Union No, 373, et al. (Docket No. C-2156-75); AL

fonso A, Esposito, et al. vy. Local Union No. 11 (Docket

No. C-2155-75); Walter J. Serafin, et al. v. Local Union

No. 480 (Docket No, C-8254-75): and Walter Handley, et

al. v. Local Union No, 45, et al. and Local Union No. 45,

et al. (Docket No. C-1555-76). These cases were consoli-

dated for appeal purposes by the New Jersey Superior

Court, Appellate Division.

There were no reported opinions rendered in the con-

solidated matters. An oral opinion in the Connell-Hespelt

case was delivered by Hon. Bertram Polow, J.S.C. (App.

la); an oral opinion in the Mundy ease was delivered by

Hon. David D. Furman, J.S.C. (App. 32a): a letter opin-

ion in the Esposito case was rendered by Ifon. Arthur (.

Dwyer, J.S.C. (App. 45a); an oral opinion in the Serafin

ease was delivered by Hon. Harold A. Ackerman, J.S.C.

(App. 80a); and a letter opinion in the Handley ease was

rendered by Hon. Frederick C. Kentz, Jr. J.S.C. (App.

129a). These decisions were substantially affirmed by the

Superior Court of New Jersey, Appellate Division, in an

unreported per curiam decision (App. 150a). The New

Jersey Supreme Court rendered no opinion in denvine the

Petition for Certification (App. 158a). ioe

Jurisdiction

The judgment of the Superior Court of New Jersey,

Appellate Division, was made and entered on J uly 3, 1978

(App. 150a). A Petition for Certification to review this

judgment was denied by the New Jersey Supreme Court

on September 5, 1978 (App. 158a). The jurisdiction of

this Court is invoked under the provisions of 28 U.S.C.

§1257(3).

Questions Presented

Respondents, members of the International Association

of Bridge, Structural and Ornamental Ironworkers, AF'L-

CIO (hereinafter referred to as the “International”)

brought suit seeking an order compelling Petitioners to

accept their transfer into local union membership. Pur-

suant to a directive from the New Jersey Supreme Court

rendered in Moore, et al. v. Local 483, et al., 66 N. J. 527

(1975), Petitioners were obligated to state the specific rea-

sons for any transfer rejection. Petitioners had rejected

the transfer applications on the grounds that acceptance

of Respondents into membership would cause a further

imbalance in the minority makeup of the Locals and would,

therefore, jeopardize Petitioners’ compliance with ongoing

Title VII orders and decrees entered in the United States

District Court of New Jersey. (U.S.A. v. Plumbers Local

24, et al., U.S.D.C. N.J. No. 444-71). Petitioners contended

that a Consent Decree entered in the Title VII action

imposed upon them a goal of achieving a 20% minority

membership, which would be frustrated by the acceptance

of substantial numbers of additional non-minority mem-

bers.

The trial courts in spite of the evidence introduced re-

garding the particular nature of Petitioners’ federal civil

rights commitments, coneluded that the Title VII reason

constituted an “arbitrary” exercise of Petitioners’ discre-

tionary power to accept or reject transfers. In making

these rulings, each of the trial courts aecepted to some

extent Petitioners’ explanations of their Title VII com-

mitments under the ongoing Consent Decree but character-

ized Petitioners’ rejection of Respondents’ transfer re-

quests as a form of impermissible “reverse discrimina-

tion”, The Appellate Division affirmed these rulings. The

que. tions presented, therefore, are:

1. Whether the interpretation given by the New Jersey

State Courts to the Consent Decree of the United States

District Court for the District of New Jersey effectively

prevents Petitioners from fulfilling certain affirmative

action obligations which formed the basis for the Consent

Decree.

2. Whether the rejection of white transfer applicants

based upon ongoing Title VIT affirmative action commit-

ments constitutes impermissible reverse discrimination.

3. Whether the decisions of the New Jersey State

Courts constitute an impermissible collateral attack upon

a judgment of a United States District Court and are,

thus, violative of the principles of comity.

Federal Statute Involved

The within matter involves the effect to be given to a

judgment entered by a United States Distriet Court for

the District of New Jersey in the matter entitled UWS A,

v. Plumbers Local 24 (Ironworkers Cluster), Civil No. 441-

71, which action was instituted pursuant to Title VII of

the 1964 Civil Rights Act, 42 U.S.C. §2000e, et seq.

Statement of the Case*

Petitioners’ justification for denying the transfer appli-

cations was based upon their understanding of affirmative

action obligations imposed pursuant to a Title VII Consent

Decree. A typical letter of rejection stated in part:

The Executive Board of Local 480 has also been

advised by counsel that an acceptance of your trans-

fer at this time would cause a further imbalance in

the minority makeup of this Local and would, there-

fore, adversely affect the continuing Title VII or-

ders and decrees entered in the United States Dis-

trict Court of Northern New Jersey in a case

(U.S.A. v. Plumbers Local 24, et al, U.S.D.C.N.J.

No. 444-71) involving, among others, all five Locals

of the District Council of Ironworkers of Northern

New Jersey. Such orders and decrees imposed upon

all five ironworker locals an obligation to exercise

good faith efforts to achieve during the period 1972-

1977 a makeup of 20% of minority journeymen and

apprentice members. Counsel has, therefore, ad-

vised the Executive Board that the acceptance of

white transfers at this time would place Local 480

in jeopardy of violating its commitments and obli-

gation to the Government.

The central issue before the state courts involved, there-

fore, a determination as to the exact nature of Petitioners’

commitments under the federal decree. A substantial fed-

eral question was, thus, immediately presented; Petitioners

* Since the identical issue was presented in cach of the within

cases, involving essentially the same proofs, references to the trial

record herein will relate for the sake of brevity and clarity only to

the Serafin case.

claiming a right to reject transfers pursuant to the provi-

sions of a judgment entered in a United States District

Court.

Accordingly, virtually all the proofs introduced at trial

dealt with an interpretation of the Consent Decree in rela-

tion to applicants’ transfer rights. Relevant pleadings in

the federal proceedings were introduced into evidence, as

well as testimony from the attorneys who actually negoti-

ated and drafted the language of the Decree, i.e., Nathan

Duff and Robert Kennedy on behalf of the locals, and

Thomas Hunt on behalf of the United States Department

of Justice. Their uncontradicted testimony substantiated

the correctness of Petitioners’ understanding of their af-

firmative action obligations under the Decree. Despite

such uncontroverted proofs, however, the Appellate Divi-

sion, in affirming the courts below, elected to “disagzree”

(App. 157a), with the locals’ interpretation of their Title

VII commitments. It thus becomes incumbent to briefly

discuss herein the general background and nature of the

Title VIT reason for rejection,

A. The Consent Decree

The Title VII Consent Decree was entered by Hon.

Leonard J. Garth, U.S.DJ., on July 28, 1972. The Title

VIL action had been instituted by the Department of

Justice in order to eradicate and correct a racial imbal-

anee which existed in the membership of the respective

Locals. The Locals had virtually no minority members

at the inception of its Decree. The negotiated Decree

imposed certain affirmative action obligations upon the

locals, the most important requiring the indenturing of

375 minorities over a five year period* (App. 138a).

* The term of the Decree has subsequently been extended for an

indefinite period by Consent Order due to the fact that the depressed

state of the construction industry in Northern New Jersey had made

on-the-job training of minority applicants impossible.

Hunt testified that the 875 minority goal was predicated

upon the then existing white membership of the locals

remaining relatively stable. Such a number would result

in the achievement of a minority membership percentage

of approximately 20% to 25% at the end of the Decree

(App. 139a). Hunt indicated that the achievement of a

minimum minority goal of 20% was important to the

Justice Department for the following reasons:

1. It would approximate what the minority makeup

would have been absent racial discrimination ;

2, It would be a large enough percentage so that

the minorities would have a sufficient power base

to suecessfully protect theiv rights; and

3. It would be a large enough percentage to insure

a continuing influx of minority members in suceeed-

ing decades. (App. 159a)

Thus, the achievement of a 20% minority membership

formed the ecrnerstone underlying the formulation of the

Decree.

In order to maintain a relatively constant level of white

membership, it was agreed that the locals would not sub-

stantially increase their white membership through the

acceptance of white transfer applicants. Paragraph 33 (b)

of the Deeree specifically provided that transfer “deter-

minations shall be made without having the effect... of

perpetuating the effeets of any such past exclusion” (App.

138a). It was understood by all parties that the phrase

imposed upon the locals the obligation in exercising their

discretionary power to take into consideration the effeet

that an acceptance might have upon the already existing

racial imbalance (App. 145a).

Robert Kennedy was the attorney who negotiated the

language of Paragraph 33(b) on behalf of the locals. Ac-

cordingly, in 1975 when the locals received the instant

flood of transfer requests, they consulted Kennedy re-

garding the possible impact that acceptance of such ap-

plications might have upon their Title VII obligations.

Kennedy advised the locals to reject the applications

based upon the following factors:

1. the large number of applicants—There were ap-

proximately 60 to 100 applications pending at the

time;

2. the large number of potential applicants—There

were an additional 1900 potential transferees work-

ing within the jurisdiction of the District Council.

If the instant applicants were accepted the “flood-

gates” would be opened;

3. the current status of achieving minority goals—

At the time Kennedy was consulted, the locals had

achieved approximately a 9% minority makeup.

They should then have achieved a minority level

of approximately 12%. At the same time appren-

ticeship classes were heing reduced because the de-

pressed state of the economy made training impos-

sible. The locals were, therefore, already behind

their timetable in achieving minority membership

as contemplated by the Decree. The acceptance of

the transfers would, thus, have had the effect of

wiping out the previous gains achieved during the

first three years of the Decree, (App. 145a)

After taking the above considerations into account, IXen-

nedy’s office authored the Title VII language contained in

the transfer applicants’ letters of rejection. Hunt agreed

that the Kennedy analysis of the locals’ Title VIT obliga-

tions under the Decree was a correct one. Hunt was

also of the opinion that if a total of 90 to 95 white trans-

ferees had been allowed to transfer into local membership

in 1975, in light of the existing circumstances, the Govern-

ment would have gone into federal court (App. 148a).

The Serafin court also took judicial notice of a deter-

mination made by the EKOC on Mareh 31, 1977, which

dealt with a charge of reverse discrimination brought by

a transfer applicant who had been denied transfer on the

Title VII grounds. This Determination (App. 147a) reads

as follows in its relevant part:

It is undisputed that Respondent Local Union and

the Commission entered into a Consent Decree that

imposes upon Respondent the obligation to increase

its membership by 20% minority Journeymen and

Apprentices. It is also undisputed that Charging

Party is not a member of the minority groups speci-

fied in the Consent Decree.

. Records show that Respondent’s Local Union

entered in a Consent Decree, presently in effect,

that imposes an obligation to achieve 20% minority

membership from 1972 to 1977. Reeords demon-

strate that by accepting Charging Party and other

Caucasians on its membership would place Respond-

ent’s Local Union in jeopardy of violating its eom-

mitments and obligations under the Decree.

B. The New Jersey Courts’ decisions

The New Jersey State Courts were unanimous in con-

cluding that the Title VII reason for rejection was “arbi-

trary” and “capricious”. The approaches taken by the

respective courts in reaching this conclusion were some-

what different, however. For this reason, the decision of

each court will be briefly considered herein.

1U0

1. Connett—Judge Polow recognized that the purpose

underlying the Consent Decree was the achievement of a

better racial balance in the membership of the locals. He

also recognized that there could be no sweeping ruling re-

quiring acceptance of transfers for two basic reasons:

(1) it would further upset the racial balance, and (2) it

would interfere with the attempt by the United States to

work out some method of obtaining better minority group

representation (App. 7a). The Court further acknowl-

edged that it could not properly be concerned with an

evaluation of the propriety or effectiveness of the various

court orders, or the degree of compliance or non-coimpli-

ance with said orders (App. 18a).

After correctly stating the above principles, however,

the Court then proceeded to completely ignore them. The

Court expressly disapproved of the method being utilized

to achieve racial balance whereby the white attrition fae-

tor was compensated for by the acceptance of whites into

the apprenticeship programs (App. 16a). The Court ex-

pressed the opinion that the better way to deal with attri-

tion would be by the replacement of members through the

acceptance of transfer applicants (App. 16a). The Court

further concluded that the local’s interpretation of the

Consent Decree constituted reverse discrimination, citing

Bridgeport Guardians Tne. v. Members of the Bridgeport

Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973),

cert. den. 421 U.S. 991, 95 S.Ct. 1996, 44 L.Ed.2d 481

(1975) (App. 17a).

2. Munpy—Judge Furman expressly recognized the ex-

istence of a 20% minority goal. He further recognized

that the implementation of such a goal might create a

conflict between state court considerations as expressed in

Moore and federal court considerations as expressed in

the Consent Decree (App. 26a). The Court, thereupon,

attempted to avoid this conflict by ruling that although

there was an understanding, it was not a “binding” under-

standing (App. 38a). After making this rather tenuous

distinetion, the Court reasoned that since the commitment

was not “binding”, it was, therefore, arbitrary for the

local to consider it. Judge Furman further stated that

the effect of the language of Paragraph 33(b) is to con-

stitute reverse diserimination contrary to a rapidly devel-

oping body of law (App. 36a).

3. Esprosrro—It is unclear from reading Judge Dwyer’s

opinion as to exactly what factors formed the basis for

his ultimate conclusion that the Title VII reason was

“arbitrary”. The Court did clearly state, however, that

the Title VII reason advanced by the Local amounted to

reverse discrimination, citing Lige v. Town of Montclair,

72 N. J.5 (1976) (App. 61a).

4. Serarin—Judge Ackerman basically accepted as true

all the testimony introduced by the local regarding its

Title VIL commitments. He ruled, however, that the im-

plementation of the Consent Decree constituted “reverse

discrimination” against plaintiffs (App. 108a). Citing

McAleer v. A. T. & T., 416 F. Supp. 425 (D.D.C. 1976),

the Court reasoned that the union should not be permitted

to exclude from membership innocent parties because of

the existence of affirmative action obligations which had

arisen only beeause of the loeal’s prior unlawful eonduct

(App. 104a). The Court concluded, therefore, that the

Title VII reasons did not constitute a valid ground for

reiection.

5. Hanptey—Judge Kentz, ruling on a motion for sum-

mary judgment, concluded that no quota of minority mem-

bership was contemplated by the Decree and that, there-

fore, no prohibition against acceptance of white transferees

was contained in the Decree’s provisions (App. 134a).

6. Appettate Drviston Deciston—The Appellate Divi-

sion affirmed the trial courts’ judgments requiring the

admission of plaintiffs into local membership..,.khe Appel-

late Division, however, although “disagreeing” with the

locals’ interpretation of its Title VIL commitments, found

that “the civil rights proceedings against the unions gave

some basis for refusing transfer” (App. 157a). Accord-

ingly, the Court reversed an award of punitive damages

made by Judge Polow and an award of counsel fees made

by Judge Furman. Essentially, therefore, the Court con-

cluded that although the locals were mistaken as to their

Title VIL obligations, the locals had acted in good faith in

relying upon this reason in rejecting plaintiffs’ transfer

applications.

Virtually no explanation was given, however, as to the

basis for this disagreement with the locals’ position;

merely a conclusionary statement to the effect that “there

is no basis in the judgment to construe a requirement of

20% as was contended for by each of the locals” (App.

156a). Thus, the Appellate Division, ignored the uncon-

tradicted testimony of Duff, Kennedy and Hunt to the

effect that the achievement of a minimum minority mem-

bership of 20% formed the cornerstone of the Consent

Decree. Apparently, the fact that the goal of 20% was

not specifically expressed in the Decree provided sufficient

justification for the Appellate Division to disregard the

unequivocal understanding of all parties bound by the

Decree; i.e., the defendant locals, the United States Do-

sepbogesh of Justice and the MEOC. Such an approach

Is, to say the very least, myopic. To conclude that the

number of minorities (375) was negotiated Without any

consideration being given to the per reentage minority make-

up that such a number would achieve, not only ignores

the sworn testimony of all the attorneys who negotiated

the Decree, but totally ignores the practical considerations

which enter into the establishment of virtually all affirma-

tive action programs. Numbers, time and _ percentage

goals are the common elements in all such negotiated

agreements. The testimony in this regard was clear, con-

vineing and uncontradicted.

The Appellate Division, by concluding that the locals’

interpretation of its Title VII commitments was incorrect,

conveniently avoided the questions raised regarding. an

improper collateral attack upon a judgment of a United

States District Court. For the reasons expressed above,

however, this problem will not disappear simply by pre-

tending it does not exist. The problem is a real one

leading to direct state court infringement upon an ongoing

United States District Court imposed affirmative action

program.

7. Subsequent Feprra Appiications—After denial of

certification by the New Jersey Supreme Court, petitioners

applied to the United States District Court for the Dis-

trict of New Jersey for an injunction staying enforce-

ment, implementation or further prosecution of the state

court judgments. This application was denied by H. Cur-

tis Meanor, J. U.S.D.C. N.J. on, October 4, 1978 (App.

159a). An application was then made to Hon. John J.

Gibbons, Circuit Judge, for an injunction pending appeal.

This application was also denied by Judge Gibbons, for

the express reason that “the subject matter of the appeal

has been litigated in New Jersey State Courts to a judg-

ment final in all respects except for a petition for cer-

tiorari, and that there are no equitable considerations sug-

gesting why the appellants should not be relegated to the

remedy of certiorari” (App. 166a).

Reason for Granting the Writ

This petition raises substantial and important questions

regarding the proper role that a state court may exercise

in interpreting the meaning, scope and effect of an on-

going affirmative action program established pursuant to

a decree of a United States District Court. The trial

courts in the instant cases rashly decided one of the most

complex, controversial and critical issues to come before

this Court in its history, i.e., the question of whether an

affirmative action program constitutes reverse discrimina-

tion. Regents of University of California vy, Bakke, ——

U.S. ——, 98 S.Ct. 2733, ——- L. Ed, 2d ——- (1978). The

fact that this federal issue dealing with a matter of grave

social importance was decided wrongly is, of itself, suffi-

cient reason for certiorari to be granted. Of even greater

significance, however, in terms of its long range implica-

tions, is the precedent herein established which allows a

state court to seemingly apply its own standards to an

affirmative action program ordered by a federal court.

The preservation of the integrity of all Title VIL orders

and deerees is, thus, intimately involved in the within peti-

tion.

Only the Appellate Division, of all the state courts which

considered this issue, seemed to appreciate the dangerous

ground being tread upon in declaring that the denial of

transfer applicants because of ongoing Title VIT obliga-

tions constituted reverse cliscrimination. The Appellate

Division attempted to avoid the reverse discrimination

issue by disagreeing for some unspecified reason with the

uncontradicted interpretation of the Decree. This Court

should not allow itself, however, to be diverted from a

review of these cases by this deliberate downplay by the

Appellate Division of the federal-state controversy inher-

ent in all the trial court opinions. An issue of such funda-

mental importance not only deserves, but requires, the

prompt attention of this Court.

It is submitted that a state court simply has no author-

ity to declare that the implementation of a validly entered

Title VII Consent Decree constitutes reverse discrimina-

tion. Such an action constitutes an impermissible col-

lateral attack upon a valid federal judgment and violates

all established principles of comity. Burns v. Bd. of

School Comm. of the City of Indianapolis, Inc., 487 F.2d

1148 (7th Cir. 1971); Black and White Children of the

Pontiae School System vy. School District of Pontiac, 464

F.2d 1030 (6th Cir. 1973). This is especially true in the

instant matter, where the federal court retained jurisdic-

tion over the operation and implementation of the Con-

sent Decree. The proper avenue for relief, if there were

unanticipated problems in the implementation of the

court’s order, was an application to intervene and a mo-

tion for modification of the original deeree. Martini v.

Republic Steel Corp., 532 ¥.2d 1079 (6th Cir. 1976); Oburn

v. Shapp, 70 F.R.D. 549 (1.D. Pa. 1976), aff'd. 546 F.2d

418 (3rd Cir. 1976); cert. den. —— U.S. —-, 97 S.Ct.

1650, L.d.2d (1977). Such a procedure would

have preserved and protected the sanctity of the federal

decree. Instead, in the instant matter, the state courts

took it upon themselves to unilaterally abrogate the most

critical provision, in terms of achieving adequate minority

representation, contained in the Decree.

The trial courts compounded their initial error of con-

sidering the reverse discrimination issue by ruling incor-

rectly on the issue. Virtually no analysis was engaged in

by the courts before such a complex and important ruling

was made—the mere fact that the element of race consti-

tuted a factor in the locals’ decision apparently being

sufficient to justify such a conelusion. The law on re-

verse discrimination is, however, not quite so simplistic.

The imposition upon labor unions of minority member-

ship quotas or good faith goals has long been sanctioned

by the federal courts. EEOC y. Local 638, 532 F.2d 821

(2d Cir. 1976) ; Rios v. Enterprise Ass’n. Steamfitters Local

638, 501 F.2d 622 (2d Cir. 1974); United States vy. Tron-

workers Local 86, 448 F.2d 544 (9th Cir.), cert. den, 404

U.S. 984, 92 S. Ct. 447, 30 L. Ed. 2d 367 (1971). In all

of the above cases, challenges to the court ordered action

under either the due process or equal protection clauses

of the United States Constitution or the statutory provi-

sions of 42 U.S.C. §2000e-(2) (h) and (j) were considered

and rejected by the Courts. Thus, the mandating of

minority membership goals does not of itself constitute

reverse discrimination, as the trial courts intimated.

A multitude of factors must be considered before making

such a determination. Regents of University of California

v. Bakke, supra. For example, it is well established that

the interpretation given to a decree by the agency charged

with its enforcement must be given great weight. The

state courts ignored this principle by disregarding the

EEOC determination that the rejection of transfer re-

quests based upon Title VIT commitments under the Con-

sent Decree does not constitute reverse diserimination

(App. 147a). The State Courts’ conduct highlights the

extent of the intrusion made by them upon the efficacy

and continuing vitality of the Consent Decree, The funda-

mental and sensitive nature of the issues raised herein

requires, therefore, a full review by this Court,

CONCLUSION

For the reasons aforesaid, it is respectfully prayed

that a writ of certiorari be granted to review the judg-

ment of the Superior Court of New Jersey, Appellate

Division.

Respectfwly submitted,

Tuomas J. O'NEILL

Counsel for Petitioners

Noan, Lynes, Bett & Moore

A Professional Corporation

Attorneys for Petitioners

[Appenpix Fot.ows]

APPENDIX

Oral Decision of Polow, J.S.C., October 27, 1976

SUPERIOR COURT OF NEW JERSEY

Cuancery Divistion—Svussex County

Docker No, C 4484-74

October 27, 1976

GEORGE CONNELL, et al.,

Plaintiff's,

LOCAL UNION NO. 483, INTERNATIONAL ASSOCI-

ATION OF BRIDGE, STRUCTURAL AND ORNA-

MENTAL LRONWORKERS, AFL-CIO, et al.,

Defendants.

S a

Before:

Honoras_e Berrram Po iow, J.S8.C.

Appearances:

Messrs, Craner, BRENNAN & NELSON

By: Mr. Joun A, Craner

Attorneys for the Plaintiffs

[la]

Oral Decision of Polow, J.S.C., October 27, 1976

Messrs, Nouan, Lynes, Bern & Moore

By: Mr, Jerome Lynes, Usa.

and

Mn. Jonn J, Munyvinrnn

Attorneys for the Defendant, Local No, 488

Messrs. Parsonnet, Parsonner & Duacan

By: Mr. Tomas L, Pansonnet, Msq,

Attorneys for the Defendant, International

Association of Bridge, Structural and

Ornamental Lronworkers

Pamir Fisuman, C.S.R,

Official Court Reporter

The Court: L have, of course, listened carefully to all

the evidence, I have examined the documents. I have

listened to counsel. I obviously have a responsibility and

to some extent, of course, the role of the Court has been

explained by our Supreme Court in Moore. The ease is

on remand from our Supreme Court in the matter orig-

inally entitled Moore vy, those two defendants, the Local

483 of the International Association of Bridge, Structural

and Ornamental Lronworkers, the AFL-CLO and the other

defendant again is the International Union.

On February 14, in fact, 1975 the matter was remanded

to the trial court with directions that an order be entered

requiring the local union to reconsider the applications of

the plaintiffs in that case for transfer into the local union

in accordance with the view expressed in the opinion of

Judge Collester and further the Supreme Court ordered

Oral Decision of Polow, J.S.C., October 27, 1976

that in the event of rejection of any such application for

transfer, the reasons must be stated for the rejection to

provide a basis for a fair and impartial review by the

International General Executive Board in accordance with

the constitution of the International.

Now, another suit was started in the interim since the

decision in Moore and all the plaintiffs in both suits ap-

pear now before this Court. The suits were consolidated

by consent and for some reason, which I am not quite

familiar with and it has nothing to do with the deter-

mination in this case, a different name appears first,

Connell instead of Moore, and so that the titles are some-

what different.

There are now 29 plaintiffs, I understand, who are in

the same or similar positions, although their status is

somewhat different based upon what efforts were made,

what reasons were given for rejections and whether or

not any formal appeal was made from the rejection to the

International. It is clear that none of these 29 plaintiffs

was approved for transfer into Local 483,

The Moore trial took place in this courtroom, I believe,

in or about December 1973, The trial judge found that

the practice of Local 483 in rejecting all applications for

transfer constituted an abuse of discretion. However, the

trial judge also ruled that the Chancery Division of the

New Jersey Superior Court lacks jurisdiction to intervene

in the internal affairs of the union and, therefore, no ulti-

mate relief could be granted.

He relied on Mayer v. Journeyman Stonecutters Asso-

ciation, which is reported at 47 N. J. Equity 519 and was

apparently decided in 1890, Accordingly the trial judge

entered a judgment in favor of the defendants and on

Oral Decision of Polow, J.S.C., October 27, 1976

appeal the Supreme Court determined that Mayer was not

applicable and furthermore indicated that conditions have

substantially changed since the Mayer decision in 1890,

According to the Supreme Court in Moore, although

our courts have traditionally refrained from interfering

with the internal affairs of unions, they nonetheless will

and have the obligation to intervene when the provisions

of a union constitution are repugnant to public policy or

exceed the limits on equal opportunity to work guaran-

teed by the State and Federal Constitution or where they

are interpreted in such a way as to in fact be repugnant

to public policy or deprived parties or persons of the

equal opportunities guaranteed by the State or Federal

Constitution.

Thus the Court concluded that the exclusion of qualified

persons for membership in an organization where such

membership is a matter of economic necessity is to be

dealt with as stated in Falcon; that is, Falcon vy. Middle-

sex County Medical Society reported at 34 N. J. 582 in

1961, and there it was held that a county medical society

cannot arbitrarily exclude a duly licensed and qualified

physician from membership.

Following that in 1963 in Greisman v. Newcomb Hospi-

tal at 40 N. J. 389 (1963) the Court noted that the hos-

pital’s power to pass on staff membership is a fiduciary

power and an applicant is entitled to be evaluated on his

individual merits without regard to certain restrictive

by-law requirements.

The Court found a similarity in Moore between the

union and the county medical society or hospital based

upon the fact that they each effect the economic welfare

of the individual applicant and all have public importance.

Oral Decision of Polow, J.S.C., October 27, 1976

Defendants here would make some distinction because

they argue that there is no economic advantage to local

membership. They deny any relative advantage in mem-

bership in the union itself because all the applicants for

membership in this case or at least theoretically to all the

economic advantages as non-members which are available

to those who are in fact members of the local, argue that

they all work and are assigned work out of the same hir-

ing hall and the same list.

Be that as it may, however, as I see it, our Supreme

Court has already resolved that issue in Moore, our Su-

preme Court having stated specifically that there is an

economic advantage in membership in the local and, I

think, that this Court is bound by that determination and

even regardless of that determination, this Court cannot

help but conclude that the advantages are greater than

merely the relief from the paying of the two-and-a-half-

dollar weekly travel service fee. The fact that it is obvi-

ous that all ironworkers aspire to membership in the local

union in the community in which they live or work obvi-

ously permeated the entire proceedings in this courtroom.

The 29 plaintiffs in this case feel very strongly that they

would have an advantage or surely would not have gone

to the time and trouble involved, expense of pursuing this

litigation. Beyond that it is clear that over the years

members of the locals—at least in this area—have seen

fit to attempt to restrict their membership for reasons

which may to them be significant. Surely they cannot

deny that there is a desirability in holding membership.

I previously referred to the decision in California in

Director’s Guild of America, Inc. v. Superior Court, 409

Pacific 2d 934 where the Court declares at 941 that mem-

bership in the union means more than mere personal or

Oral Decision of Polow, J.S.C., October 27, 1976

social accommodation. Membership affords the employee

not only the opportunity to participate in the negotiations

of contracts but also the chance to engage in the institu-

tional life of the union. In the case, of course, which

involves interstate commerce the union must legally give

fair representation to all the appropriate employees,

whether or not they are members of the union, the union

official, in the nature of political realities, will in all likeli-

hood more diligently represent union members, who can

vote him out of office, than employees whom he must serve

only as a matter of abstract law, and the Court referred to

an article in the Columbia Law Review in 1947: The

right to join a union (1947) 47 Columbia Law Review

Page 33. “Participation in the union’s affairs by the

workman compares to the participation of the citizen in

the affairs of his community. The union, as a kind of

publie service institution, affords to its members the op-

portunity to record themselves upon all matters affecting

their relationships with the employer. It serves likewise

as a vehicle for the expression of the membership’s posi-

tion on political and community issues. The shadowy

right to ‘fair representation’ by the union is by no means

the same as the hard concrete ability to vote and to par-

ticipate in the affairs of the union.”

Obviously that explains some of the motivations behind

both the desire, the strong urge on the part of these

applicants to transfer into the local and, on the other

hand, the antipathy these unions have shown and in fact

one of the witnesses testified, although with regard to

another local, for allowing transfers into the respective

locals.

Surely there are advantages and our Supreme Court

was right in concluding that there are economic advan-

Oral Decision of Polow, J.S.C., October 27, 1976

tages in union membership. On the other hand, of course,

this Court does not conclude that based upon that logic

automatically all journeymen applicants must be admitted

to the local union. That would also raise difficult social

and economic questions and any such sweeping ruling

could have adverse effects on the union by way of an

influx of people who could distort the function of the union

local itself and, of course, it could have important possible

consequences on the primary subject of the testimony in

this ease, specifically, the civil rights issue and the desir-

ability of obtaining a better racial balance, so that there

can be no sweeping ruling requiring acceptance of all

applicants for transfer who might happen to be members,

journeymen members, of the international, that not only

might upset the racial balance further but might at the

outset interfere with the attempt on the part of the U.S.

Government to work out some method of obtaining better

minority group representation.

In any event, this Court is limited to act within the

scope of the ruling in Moore by our Supreme Court. Our

authority is surely cireumseribed and within those limits

this Court must determine whether the reasons for rejec-

tion is at this time, provided by the local, reviewed in

accordance with the outlines of the Moore decision by the

General Executive Board of the international and in ac-

cordance with the provisions of the International Consti-

tution, whether the reasons given should be reviewed by

this Court for arbitrariness or reasonableness and perhaps

also whether the mandate of our Supreme Court requir-

ing, as I read it, that proper standards or guidelines or

criteria be established has been in fact followed and ulti-

mately whether the International Executive Board has

reasonably exercised its discretion.

Oral Decision of Polow, J.S.C., October 27, 1976

It has been conceded that as a matter of record that

at least 22 of the 29 plaintiffs did make application for

transfer into the local and that they were rejected.

Now, with regard to the rejection, 15 of them were

apparently rejected solely on the basis of the Federal

Court ruling and the interpretation of counscl that ae-

ceptance of any of these applicants would be violative of

either the spirit or purpose or the letter of those rulings.

An additional seven were rejected for additional reasons

as outlined by Mr. Lynes, having to do with untruthful

statements, I believe, and those rejected applicants did

file appeals with the International General Executive

Board which declined to reverse the action of the local

executive council. There were other plaintiffs who either

failed to file any applications on the grounds that they

would be futile or failed to seek their Appellate review

for the same reason on the grounds that it would be futile

and that the local and international had made it clear

that they would not approve no application for transfer.

Now, the local at first gave four reasons for its actions.

I understand, as I have just indicated, that only two of

those reasons are pressed by the local. As far as the

international is concerned, it presses only one, that deal-

ing with the civil rights issue.

It’s stated as follows:

Admission of each plaintiff would cause a further im-

balance in the minority makeup of defendant local and

would therefore adversely effect the continuing Title 7

decree entered in the case of U. S8. v. Plumbers, such

orders or decrees having heen predicated upon assurance

of defendant Local 483 that the minority makeup of all

Oral Decision of Polow, J.S.C., October 27, 1976

northern district ironworker locals will reach 20 per cent

during the period between 1972 and 1977. ‘Therefore, to

preserve this ratio no white members can be admitted

into Local 483.

During the course of the trial this statement was some-

what modified to suggest that the intent was at this time

as stated. However, the reason seems to be permanent

and irrevocable. Now, that is only important in my at-

tempt to interpret the motivation and justification for the

stated reason.

Now, do I have the power to determine first whether

that reason is arbitrary or reasonable? We surely have

some support in this State without relying solely on

Moore.

With regard to Moore, the Court discussed the impor-

tance of the local setting forth reasons for review by the

international for arbitrariness or reasonableness. The

Court seemed to assume that that would be sufficient and

the problem would thereby be solved. It did not take the

next step and suggest that this Court has the power to

review the action of the international for arbitrariness

or unreasonableness. However, I cannot conceive of the

Supreme Court having suggested that the matter be re-

viewed and that this Court has the power to set aside an

arbitrary act if in fact it did not conceive that this Court

would exercise that power if necessary in this particular

situation. ;

In 1967 there was a decision in Ferger v. Local 483 and

the Appellate Division affirmed the trial court’s ruling

which would surely support the conclusion that this Court

may review the actions ultimately barring transfers as

sought in this case.

10a

Oral Decision of Polow, J.S.C., October 27, 1976

Back as far as 1948 in Carroll vy. Local No. 269 decided

in 133 N. J. Equity 144, the Court enunciated common law

principles including the recognition that courts do not

exercise general powers over voluntary associations. Ilow-

ever, that a complete prohibition against review by the

Court would be obsolete as applied to unions. That may

be considered as dictum because in that case there was no

relief when there was an agreement that the plaintiffs be

allowed to apply for membership and work unmolested.

However, the language is surely significant and perhaps

even more significant now than when it was stated by the

Court, and I quote:

“If the characterization of a labor union as a voluntary

association becomes in time a mere anachronism, the mere

word ‘voluntary’ will not likely preserve the present state

of the law.

“It is wise to foresee that a change in surrounding cir-

cumstances such as the economic strengths of competing

groups, may make the existing law disjointed and an in-

strument of oppression if strictly adhered to,

“It is the peculiar genus and strength of the common

law that no decision is stare decisis when it has lost its

usefulness in our social evolution; it is distinguished, and

if times have sufficiently changed, overruled Judicial opin-

ions do not always preserve the social staties of another

generation.”

Our Supreme Court surely recognized the obligation of

the courts of this State to act and protect what it desie-

nated as the property rights of journeymen, members of

the international union, who are economically dependent

upon collective bargaining contracts, which in this case, of

lla

Oral Decision of Polow, J.S.C., October 27, 1976

course, would be negotiated by Local 483, in that their

applications for transfers be fairly and properly con-

sidered. A rejection of an application for transfer must

have a reasonable basis. Transfer should not be barred

because of a decision to restrict membership to those who

have participated in an apprenticeship program. I have

not decided that on my own. I have taken that from the

ruling of the Supreme Court. I am not sure that the

union 2.; yet understands it so I will repeat it. Transfer

of membership should not be barred because of a decision

of the union to restrict membership to those who have

participated in an apprenticeship program. So the ques-

tion then remaining is whether these rejections based pri-

marily on the allegation that the stipulation and consent

decree in the Title 7 action in the federal courts bar all

transfers of white members into 483 and that, in any

event, transfers of white members would be a violation

of the spirit, if not the letter, of the intention of the Court.

Is that interpretation supported by the proofs? If not,

is it a fair and reasonable basis for rejection, whether or

not required by the language of the decree, stipulation and

amended decree?

The local argues that Title 7 decree was predicated on

an agreement between counsel for the local and the inter-

national or, I suppose, counsel for the Northern New

Jersey District, the international and government counsel.

Now, that agreement was based upon a desire of the

Federal Government to obtain better racial balance, that

certain assurances were given to the government in that

the union has an obligation to live up to its promises.

I think Mr. Duff referred to a moral obligation on his

part to keep his word. If it is the local’s position that it

12a

Oral Decision of Polow, J.S.C., October 27, 1976

is a moral, if not a legal, requirement on their part, the

international joins the argument of the local but also adds

to it the fact that it cannot be held liable for anything

in the absence of fraud or malice because in performing

its duties under the union constitution it is acting as an

appellate tribunal deciding an appeal from an administra-

tive agency and, therefore, it cannot be held for damages

even if they are wrong. They rely on United Mine Work-

ers vy. Gibbs reported in 383 U.S. 715 to establish that

the liability of the international for actions by the local

must be established on the basis of clear proof of actual

participation or actual authorization of such acts by the

union.

Of course, in this case there is no question about knowl-

edge. The question is whether there was in effect a con-

spiracy. A conspiracy obviously may he proved by cir-

cumstances without having to show specifically an oral or

written agreement.

Defendant also relies on Gavin, which is, as I under-

stand it, an unpublished opinion which has been supplied

to the Court and which has been referred to by counsel

in which it was determined that the decision of the local

to hold up transfer applications or hold them in abeyance

was supported by the Court. I indicated before that it

did appear during the course of the trial or at least during

sumuations, that there was a suggestion that the rejec-

tions were intended to be at this time not final and irre-

vocable.

The language of Gavin is interesting. The Court stated

that a consent decree was entered on June 26, 1973 by

order of the United States District Court, Northern Illi-

nois. Among other things, the decree imposes upon the

13a

Oral Decision of Polow, J.S.C., October 27, 1976

local an obligation to exercise good faith efforts to achieve

over the next several years numerical goals of active black

journeymen and apprentice members. Though the local is

not prohibited from admitting into membership members

of other ironworker locals under the provisions of the in-

ternational constitution and upon such conditions as Local

No. 1 may require, the decree specifically provides that the

admission of new white members will not relieve the local

of its obligations to meet the goals set forth.

The Court, of course, emphasized the discretion vested

in local unions by the international constitution. It upheld

that discretion in that case, although it was clear that the

consent decree in that case did not purport to prohibit

transfer of members.

However, I cannot say that that decision applies to the

facts as I find them in this case. In this case it seems

to me that we have clear proof. As a matter of fact, we

have a ruling by the Supreme Court upon which I cannot

conclude anything but that traditionally there has been a

deliberate, definite policy of excluding transferees except

as I noted previously in the case of relatives of existing

members. That policy was condemned by our Supreme

Court as arbitrary and unreasonable and I cannot say

that in this case the defendants did anything but use the

consent decree and stipulation as a deliberate means of

continuing the very policy which has been condemned by

our Supreme Court, and I will be more specific.

The erucial document upon which defendants rely is, I

believe, the stipulation. I think it is clear and not much

need be said about the fact that the original order would

have permitted all transferees without limitation. The

original order would have also permitted or required,

l4a

Oral Decision of Polow, J.S.C., October 27, 1976

mandated, admission to all who had completed only six

months of training.

Now, I am perfectly satisfied that neither of those re-

sults was contemplated by either party and, therefore,

some amendment was obviously necessary. The parties

agreed on the manner of amendment and the stipulation

and consent decree provides that Paragraph 33A_ be

stricken and this be substituted.

Paragraph 383A originally provided full journeymen

membership to anyone who completed six months experi-

ence. The amendment limited the effect of that provision

to any black or Spanish-surnamed American.

Now, pursuant to the discussions, there was an order

requiring admission of no fewer than 75 minority appli-

cants every year for a period of no less than five years

and no less than 25 minorities in the apprenticeship pro-

gram.

Now, there has been testimony allowed concerning the

discussions which led up to the final requirement for 75

minority applicants per year for five years and this was

over the objection of the plaintiffs and that testimony

was introduced to support the contention of defendants

that the basis of the number 75 was the ultimate desire

to reach a ratio of 80 whites to 20 minorities within the

designated five-year period.

I have in my colloquy with counsel indicated that my

recollection of the testimony is that they rounded out the

numbers to the extent that they began with a figure of

approximately 1400 members as of the time of the dis-

cussions in the five locals making up the Northern New

Jersey District and that they considered that with the

15a

Oral Decision of Polow, J.S.C., October 27, 1976

expected growth and making allowance for attrition, as

we have indicated, by way of retirement on pension, by

way of transfers out by way of termination and by way

of death; that a certain number of new members would

be admitted each year but that at least 75 of each of

those years be members of these designated minority

groups to thr end that at the end of the five years there

would be at least 20 per cent minority membership.

Now, just by simple mathematics, of course, if 375 is

20 per cent and then the total anticipated membership

would have been approximately 1900, I think that five

times 375 is 1875. So that there was at least an antici-

pated total growth of 500 members over the five-year

period and making allowances for the obvious attrition

rate and, as I have said, I do not recall any specific testi-

mony as to what that rate is. Nevertheless, it is clear

that it was anticipated that there be at least as many new

white members as those contemplated among minority

groups.

Now, defendants insist that the purpose of the amended

decree and stipulation was to bar all white transfers at

least until the desired goal had been reached or T suppose

that the alternative in that their argument is that in any

event allowing white transfers would frustrate the attempt

to achieve that stated goal. In fact, of course, the local

has not come close to meeting the requirements of the

order, The district has not come close to meeting the

requirements of the order. At no time has there been

75 minority members admitted. Even immediately follow-

ing the entry of the order and the stipulation and the

consent decree in the first year, according to the evidence,

73 whites and 33 minority members were admitted as

l6a

Oral Decision of Polow, J.S.C., October 27, 1976

apprentices and 29 minority trainees started in July 1973.

Somehow or other 18 months elapsed. There were no

other new members admitted into any program until

January 1975, the only other class admitted since the order,

and that class consisted of 42 white members and 23

minority members in the apprentice category; 20 minority

trainees. At this time the testimony is to the effect that

Local 483 has seven journeymen blacks, seven apprentice

blacks among its 143 active working members. Appar-

ently, according to the testimony, the membership also

— pensioners, although their status is not entirely

clear.

. Obviously, both the district and the local have failed to

live up to the consent deeree, according to the testimony

at least partly because of economic conditions, although

even at the very outset, as T have indicated, the very first

class selected in October 1972 failed to comply and surely

the selection in October 1972 presumably purstiant to the

Title 7 order of 1973, the number of white apprentices

against a lesser number of minority people contradicts

counsel’s suggestion that no new white members were to

be contemplated at all. All the white new members of

the union since the Moore decision came through aecept-

ance by the union local itself. None were transferees,

There Was no apparent equivalent policy adopted by the

union to hold down white new membership equivalent to

its poliey as stated here to allow no transfers of white

members until the racial balance is achieved.

There is no basis that I can see that has been presented

to this Court for this kind of discrimination absolute

prohibition against white transfers, no policy at all re-

stricting white new members based upon this raci 1 bal

ance problem. oe

17a

Oral Decision of Polow, J.S.C., October 27, 1976

Our court in Moore has already held that the union

constitution clearly contemplates that journeymen mem-

bers of the international union should be permitted to

transfer to another local union. It further held that mem-

bership in the local is a matter which critically affects the

person’s ability to earn a living and that a competent

journeymen who is a member of the international should

not arbitrarily be precluded from transfer of membership.

Mr. Craner has referred to the Local 638 decision re-

ported in 582 Federal 2d 821 (1976) and it seems to me

that it does have some relevance here and I intend to

quote two paragraphs on Page 828. The first is a quote

from the Bridgeport Guardians case as follows:

“The imposition of quotas will obviously discriminate

against those whites who have embarked upon a_ police

career with the expectation of advancement only to be now

thwarted because of their color alone. The impact of the

quota upon these men would be harsh and can only exacer-

bate rather than diminish racial attitudes.”

The other quote is the following:

“The smaller group participating in a civil service ex-

amination, the more pointed the problem of reverse dis-

crimination becomes. We can no longer speak in general

terms of statistics and class groupings. We must address

ourselves to individual rights.”

Now, this, of course, supports his argument concerning

the difference in dealing with an unidentifiable group such

as prospective new members who are not yet applicants

and a very specific small identifiable class, those who are

already members of the international and made applica-

tion for transfer.

18a

Oral Decision of Polow, JS.C., October 27, 1976

With regard to the Title 7 proceedings, I am unable to

find in any of the documents submitted in evidence, either

the original opinion, stipulation, the amended decree, or

any of the agreements which were testified to, any inten-

tion to absolutely bar white transferees. Surely, the

rationale behind the Federal Court orders is most desir-

able and will in all respects be supported by this Court

to the extent that this Court has the power or authority

to do anything about it. Surely, racial balance should he

achieved, However, other than some references in the

testimony here, the economic conditions and the dropout

rates, there really has been no satisfactory explanation

for the failure to come closer to achieving that goal nor

has there been any explanation whatever as to why new

white membership should be permitted in the face of this

desire to achieve racial balance, but all transfers of jour-

neymen members should be barred or prohibited.

It seems to me that any restrictions on new white mem-

berships should apply more stringently to those who have

not yet been trained or appenticed or if not more strin-

gently at least equally to new and old union membership

alike, to apprenticeship and transfer membership alike. :

Our Court has also held and directly stated in Moore

that transfer of otherwise competent journeymen mem-

bers should not be barred because of a decision to restrict

membership to those who have participated in an appren-

ticeship program.

It is not the proper role of this Court, as counsel have

stated and as TI think I have repeated, to evaluate the

propriety or the effectiveness of the various Federal Court

orders nor may this Court concern itself with the decreo

of compliance or lack of compliance by the union local or

19a

Oral Decision of Polow, J.S.C., October 27, 1976

international or district council to the mandates, whether

they be explicit or inexplicit in those orders or decrees.

However, this Court does have a mandate imposed by

our own Supreme Court to determine whether the provi-

sions of the constitution of the international had been

complied with with respect to transfer applications. Our

Court indicated that there should be guidelines and cri-

teria for exercise of discretion and acceptance or rejec-

tion of transfer application.

I have heard no evidence that the international has

complied with that mandate. I had no testimony that any

such policy including standards, guidelines have been

adopted. I have indicated and I find as a fact, that there

has been traditionally a policy of absolute prohibition

against transfers into the Local 483. This has become an

absolute prohibition, apparently, since 1968, A reading

of the decision in Moore indicates that prior to that there

were some transfers permitted except that they were

limited to relatives of then existing local members. I

find that this practice has continued since the Moore deci-

sion without any kind of modification, although, I suppose,

some effort has been made to show pro forma compliance.

I refer to the fact that rather than having rejected these

applications out of hand without giving any reason what-

ever, that the local apparently did arrange to have inter-

views and sent out letters containing reasons. In my

opinion that is no more than pro forma compliance, I

cannot conclude anything but a continued intention to

continue the tradition of barring and prohibiting transfers

while adopting a color of compliance, pro forma compli-

ance. Of course, there has been no evidence of even one

approval of a transfer. As a matter of fact, there has

20a

Oral Decision of Polow, J.S.C., October 27, 1976

been an admission that there is no intention to approve

any transfer.

I have already interpreted all of the Federal Court rul-

ings as not intended to absolutely bar transfers of white

journeymen members nor to discriminate between new

apprenticeships and transfers of journeymen as among

white persons in the effort to achieve racial balance.

Therefore, I find that both the local and the international

have arbitrarily rejected all transfer applications and have

failed to exercise reasonable discretion.

Now, with regard to the defense by the international

that it acted as an appellate review board and has not

been shown to have been guilty of fraud, bad faith or

malice.

There has been testimony in this case that not only

Local 483 but in fact other locals, at least one in particu-

lar, had a firm policy of prohibiting all transfers in favor

of graduates of their own apprentice programs. I cannot

conclude otherwise and I find as a fact that it is a reason-

able inference that the international knew of this policy.

Surely the international is charged with knowledge of the

ruling of our Supreme Court that amy such policy is arbi-

trary and unreasonable. The international also had com-

plaints by some of the applicants alleging specifically that

a policy existed limiting transfers to relatives of existine

members of the local. The international saw fit to ignore

all of this and sent a form letter using the Title 7 court

action as its justification.

I am satisfied and T find as a fact that the actions of

the international in doing so was in knowing conspiracy

with the known and stated policy of the local to bar al}

2la

Oral Decision of Polow, J.S.C., October 27, 1976

transfers, which policy was held by our courts to be arbi-

trary and unreasonable.

Counsel argued that since the International Executive

Board knew none of the applicants individually or per-

sonally it could not have been based upon prejudice

against any of them—its determination could not have

been based upon bias or prejudice against any of them

individually. However, I find that bias and prejudice did

exist at least to the extent that there was clear bias and

prejudice in favor of the improper policy of Local 483

which the international encouraged and approved.

The international has, of course, also failed to comply,

as I have indicated, with the mandate of our Supreme -

Court to establish criteria standards for the exercise of

discretion having failed to take steps to modify the pre-

existing policy which has been condemned by our Supreme

Court, having in fact encouraged and approved the con-

tinuation of that policy in the face of a firm declaration

by our Supreme Court that it was arbitrary and discrim-

inatory. I am satisfied that both defendants have acted

in an arbitrary and unreasonable manner.

Now having so held the question is what is the next step

within the authority and power of this Court. May this

Court establish for the defendants proper standards and

guidelines and criteria? I feel not. Too many cases have

been cited with regard to the reluctance of the Court to

interfere in the internal operations of a union organiza-

tion. However, despite that reluctance, there must be

something that the Court has power to do to compel com-

pliance. There surely must be a policy adopted when

mandated by the Court. Such a policy must in this case

include a recognition that our Supreme Court has ruled

22a

Oral Decision of Polow, J.S.C., October 27, 1976

that there may not be an absolute prohibition of all trans-

fers of journeymen, members of the union, and the policy

should combine, it seems to me, an intelligent reasonable

approach to achieving some racial balance by controlling

both new membership among apprentices as well as train-

ees and I understand that the trainees are limited to

minority groups only and transferees,

Surely, as I have already indicated, there may not be

a more stringent bar against white transferees than the

bar against new white trainees for apprentices. 1 find

that the reasons stated for rejection of the seven appli-

eants, in addition to the racial balance reasons as set

forth by the local, have been or in fact would have been

overruled by the international had it been reviewed and,

therefore, those reasons are academic and need not be eon-

sidered by the Court.

So what remedy is appropriate under these circuni-

stances? I am going to order that the defendant inter-

national adopt a policy containing standards and criteria

as originally mandated by the Supreme Court in Moore

within 30 days. I am going to order that within 90 days

all of the 29 plaintiffs be considered or reconsidered by

the local executive council as under the terms of the

international constitution in a reasonable manner. Hear-

ings may be held if desired by the local provided each of

the plaintiffs receives adequate and reasonable notice:

that each plaintiff is to be dealt with individually, receive

notice in writing, that the hearing be conducted in a rea-

sonable and fair manner and that thereafter findings in

writing together with the reasons therefore with reference

to the policy to be adopted by the international. be pro-

vided to each of the plaintiffs applying to each plaintiff

individually.

23a

Oral Decision of Polow, J.S.C., October 27, 1976

Now, each of these steps must be completed within the

90-day period. Failure to comply in full within the time-

table I have set forth will be considered an acceptance of

the transfer application without further proceedings pro-

vided, of course, that the plaintiffs make themselves avail-

able as reasonably required and cooperate with any rea-

sonable appropriate demands.

In cases where such applications are rejected in writing

within the 90-day period pursuant to the newly adopted

policy as contemplated herein and upon written notice of

appeal, the defendant international must act within 30

days after receiving such notice and again should the de-

fendant international fail to act, that will be considered

a determination in favor of the applicant without further

proceeding.

With regard to the claim for damages, counsel has

sought to have me hear further argument and perhaps

provide further testimony. There will be no consideration

of compensatory damages since this Court will not usurp

the proper function of the defendants in adopting policies

and properly evaluating each applicant with a view to

reasonable acceptance or rejection based upon proper

standards and criteria including the problem of achieving

racial balance and the goals as stated during the testimony

in this case as may be appropriate, although may not, as

I have already stated, absolutely bar reasonable transfer

applications.

No compensatory damages will be considered since I

cannot make any finding with regard to any particular

applicant and I will not, therefore, consider any proofs in

that connection.

24a

Oral Decision of Polow, J.S.C., October 27, 1976

I should state in passing, of course, that the proofs in

this case indicate that all applicants have been given work

opportunities through the local hiring hall although, of

course, defendants still insist that they suffer economic

disadvantages without local membership. In any event,

compensatory damages will not be considered in this ease

for the reasons I have stated.

However, there is also a demand for punitive damages.

In the case of DiGiovanni that is reported in 55 N. J.

188 in 1970, our Supreme Court indicated that ordinarily

damages are intended to compensate rather than to pun-

ish. In exceptional cases, however, punitive damages are

awarded as a punishment of the defendant and as a deter-

rent to others from following his example.

Further it says:

“Something more than the mere commission of a tort is

always required for punitive damages. There must. be

such a conscious and deliberate disregard of the interests

of others that his conduct may be called willfull or wanton.

“Our cases indicate that the requirement may be satis-

fied upon a showing that there has been a deliberate act

or omission with knowledge of a high degree of probability

of harm and reckless indifference to consequences.”

In this case I have found that the defendants have de-

liberately, knowingly and with the intent to deprive the

applicants of property rights which have heen enunciated

by our Supreme Court and that they intentionally con-

spired to continue this condemned local traditional ‘policy

to absolutely prohibit transfers except for relatives of

members.

25a

Oral Decision of Polow, J.S.C., October 27, 1976

I am satisfied, therefore, that there is a reasonable basis

for punitive damages. I am going to award the sum of

$500 for punitive damages for each of the plaintiffs who

made application to the local union against the local

union in this case for having arbitrarily rejected those

applications. I am going to award damages against the

international in those cases where appeals were taken to

the international and the international upheld the deci-

sion of the local.

There is also an application before me for counsel fees.

Counsel have relied on the decision—Mr. Craner has

cited a decision which I do not have before me.

Mr. Craner: Red Devil Tool v. Tip Top Brush Co,

The Court: All right. That decision, I recall, was a

1965 decision prior to the enactment of the present rules.

According to Judge Pressler, the latest modification

of that rule in 4:42-9 was to clarify the previous con-

fusion and eliminate the abuses, and I quote here, “of

the pre-1948 chancery practice by limiting an aware of

counsel fees to a few specified situations.” I see that

Red Devil Tools was cited in 1967 in 50 N.J. 563, The

new rule was adopted subsequently and I am _ perfectly

satisfied to eliminate the awarding of fees in situations

of that kind. I surely agree with Judge Pressler’s com-

ment. However, there is an area where the Court has

the right to act.

The plaintiffs in this case are all members of the inter-

national union. As members they act not only in their

own individual behalf and obviously they have an indi-

vidual interest, but they act on the behalf of anyone else

who is in the same situation.

26a

Oral Decision of Polow, J.S.C., October 27, 1976

Judge Pressler discusses that problem as well and

refers to Sunset Beach Amusement Corp. decided in 33

N.J. 162.

“Fund in court’ is not to happy a term,” says our

Supreme Court. “It is a shorthand expression intended

to embrace certain situations in which equitable allow-

ances should be made and can be made consistently with

the policy of the rule that each litigant shall bear his own

costs. The difficulty with the term is that literally it may

connote a fund within the precincts of the court in a

physical or geographic sense whereas ‘in court’ refers

to the jurisdictional authority of the court to deal with

the subject matter.” Citing cases. “And for that matter,

the existence of power in the court to control the subject

matter is not itself enough to demonstrate the existence

of a ‘fund in court’ within the purpose of the rule.

“In general, allowances are payable from a ‘fund’ when

it would be unfair to saddle the full cost upon the litigant

for the reason that the litigant is doing more than merely

advancing his own interests, Thus, for example, when

there are classes of claimants to the fund and the services

redound to the benefit of others as well, it is fair that all

contribute to the cost by a charge against the subject

matter, ‘Typical is a controversy among. stockholders

with respect to dividend rights in the surplus of a cor-

poration.”

Now, I cite this because I don’t believe that Mr. Par-

sonnet has had an opportunity to respond to that.

I am going to order or I am going to permit, I should

say, Mr. Craner to submit an affidavit of services. 1

am also, however, going to give Mr. Parsonnet an Op-

portunity to respond to the comment which T have just

27a

Oral Decision of Polow, J.S.C., October 27, 1976

made concerning whether or not this Court has the power

to or should under the circumstances award counsel fees

to these plaintiffs as members of the international. I

suggest that both of those things be done within the next

ten days. .

I would like counsel then to submit a form of judgment

ordingly.

» oer aes: Your Honor, may I ask the Court one

question that has come to mind and I think it should be

clarified immediately.

There are other individuals who have applied for trans-

fer into Local 483 who have been rejected for identically

the same reasons as the plaintiffs herein.

What is the status of those persons with respect to the

criteria and review?

The Court: Mr. Craner, you are a very competent

member of the New Jersey Bar. I have dealt with the

cases before me, You will give legal advice to anyone

who seeks it properly from you.

Mr, Craner: Very well, your Honor. Thank you.

Mr. Parsonnet: Your Honor has allowed 30 days with-

in which action must be taken by the international.

The Court: Extending a policy.

Mr. Parsonnet: Yes.

The Court: You have a couple of years, Mr. Par-

sonnet, The Court says specifically that you are to adopt

standards and guidelines and criteria, Have you done

“es. Parsonnet: No, sir. My only question is may I

have 30 days from the date of receipt of the transcript.

The Court: From date of the receipt of the transcript?

That could be three months from now.

Mr. Parsonnet: I don’t know how else I can call your

Honor’s ruling to the attention of my client.

28a

Oral Decision of Polow, J.S.C., October 27, 1976

The Court: You see, what you can do, and if this

transcript is held up for an unreasonable length of time

you can make an appropriate application.

Mr. Parsonnet: Thank you.

The Court: [ am going to ask the Court Reporter—]

take it that you are immediately going to order a tran-

seript.

Mr. Parsonnet: Yes, of course.

The Court: | am going to ask the Court Reporter to

make it his business to make that available as quickly as

possible. -

Mr. Parsonnet: Thank you, sir.

The Court: We will stand in recess for lunch.

* * *

| hereby certify the foregoing.

Puiu Fisoman, CSR

Official Court Reporter

29a

Judgment

(Filed—Mareh 17, 1977)

Superior Court or New JERSEY

CHancery Diviston—Sussex County

Crvm AcTION

L..

—

ConnELL, et al.,

Plaintiffs,

Vs.

Loca, Union No. 483, InrernationaL ASSOCIATION OF

Brince, SrrucruraL & OnrnamentaL [RoNWORKERS, AFL.-

CLO, et al.,

Defendants,

Docker No. C-4434-74

and

Hespevt, et al.,

Plaintiffs,

ULE

Loca, Union No. 483, InrernationaL ASssoOcIATION OF

Brivcr, Srrucruna, & OrnaMentTAL [RONWORKERS, AFL.-

CLO, et al.,

Defendants.

Docker No. C-2157-75

—

30a

Judgment

This action having come on for trial before the Court

sitting without a jury on October 20, 21, 25, 26, 1976 ond

the Court having also heard motions for reconsideration

of judgment thereafter, and having directed defendant

Local 483 to reconsider the applications of plaintiffs in

accordance with the oral decision of this Court dated

October 27, 1976, and the matter having been submitted to

the Court for final disposition on January 24, 1977, and

the Court having heard the evidence and the argument

of the attorneys for the respective parties and having

announced its decision in open Court on October 27, 1976

and on January 24, 1977, and being of the opinion that

Judgment should be entered in favor of certain plaintiffs

for the relief demanded in the Complaint; |

It is on this day of February, 1977, Orperep that

Judginent be entered as follows:

(a) Defendants shall be directed to immediately accept

the transfer applications and admit into membership at

Local 483 the following plaintiffs: Elio Rossi, Patrick

Turi, Antonius Winkens, Roland Donaldson, Andrew Mil-

mark, George Connell, Joe Lee Moore, John Shouldis

Alexander McClellan, James O’Keefe, Joseph Lanzalotto,

Ronaid Jehlen, Raymond G. Jehlen, Rudy DiGiorgio, Wil,

liam Wharrie, Joseph Foley, Michael Cheselka, Robert

Farro, Gregg, Eck, and William O'Neill.

Defendants shall be required to process the plaintiffs

above named forthwith and to comply with the Constitu-

tion of the International Union insofar as the proper pro-

cedure for transfer is concerned and to forthwith submit

a plaintiff indicia of membership in defendant, Local

3la

Judgment

(b) The following plaintiffs are hereby awarded dam-

ages in the amount of $500.00 each as against defendant,

Local 483, as and for compensatory and punitive dam-

ages:

George Connell, Joe Lee Moore, William O’Neill, An-

thony Cueci, Roland Donaldson, John Shouldis, Antonius

Winkens, Joseph Mahon, Ben Geshensky, David Gregory,

Jack Hespelt, Mitel Hespelt, Michael Cheselka, Alexander

McClellan, Raymond G. Jehlen, Patrick Turi, Andrew

Milmark, Ronald P. Jehlen, James O’Keefe, Joseph Lanza-

lotto, Elio Rossi, Donald Seaburg, George Janesek, Gregg

W. Eck, Rudy DiGiorgio, Richard A, Ruby and Robert A.

Farro.

the sum of $500.00 from defendant, International Asso-

ciation of Bridge, Structural & Ornamental Ironworkers,

AFL-CIO, as and for punitive damages:

George Connell, Joe Lee Moore, William O'Neill, An-

thony Cueei, Roland Donaldson, John Shouldis, Antonius

Winkens, Joseph Mahon, Ben Geshensky, David Gregory,

Jack Hespelt, Kitel Hespelt, Michael Cheselka, Alexander

McClellan, Raymond G, Jehlen, Patrick Turi, Andrew Mil-

mark, Ronald P. Jehlen, James O’Keefe, Joseph Lanza-

lotto, Elio Rossi, Donald Seaburg, George Janesek, Gregg

Eek, Rudy DiGiorgio, Richard A. Ruby, and Robert A.

Farro. Plaintiffs William Wharrie and Joseph Foley

shall not be entitled to $500.00 damages from the Inter-

national Union having not appealed to said body.

(d) Plaintiff's applications for counsel fees are hereby

denied on the ground that this Court lacks the power to

grant such an application in accordance with the rules of

Court.

(e) Costs of suit to be taxed.

Berrram Potow, J.S.C.

32a

Oral Decision of Furman, J.S.C., November 9, 1976

Superior Court or New Jersey

Cuancery Diviston—Muppiesex County

Docker No, C-2156-75

PHitie W, Munpy, et al.,

Plaintiffs,

Loca Union No. 373, et al.,

Defendants.

»™

—_—

New Brunswick, New Jersey

November 9, 1976

Before:

Honorasite Davin D. Furman, J.S.C.

Appearances :

Craner, Brennan & Nelson, Esqs.,

By: John A. Craner, Esq.,

Attorneys for the Plaintiffs

Nolan, Lynes, Bell & Moore, Esqs.,

By: Jerome M. Lynes, Esq.,

and

John J. Mulvihill, Esq.,

Attorneys for the Local

33a

Oral Decision of Furman, J.S.C., November 9, 1976

Parsonnet, Parsonnet & Duggan, Esqs.,

By: Thomas L. Parsonnet, Ksq.,

and

Harold Stern, N.Y. Bar,

Attorneys for the International.

STANLEY GrRaBon, C.S.R.

The Court: This is an action to compel Local 373 of

the Iron Workers to admit twenty-seven plaintiffs to

membership in the Loeal. It is also for incidental dam-

ages and for punitive damages.

All twenty-seven, applying in 1975 after the Moore

decision of the New Jersey Supreme Court, were rejected

by the Local. A number of them appealed. I haven’t

totaled it up, but I believe around twenty or twenty-two

appealed to the International. All were rejected by the

International.

The grounds of rejection by the International were con-

fined to the effect of the consent decree of the Federal

District Court.

The grounds of rejection by the Local were twofold.

One is that the testimony before the Executive Board in-

dicated no fromal training in the various phases of iron

working, and that the applicants had never been tested

as to his capabilities; in addition, he would not qualify as

an all around journeyman iron worker; plus the effect of

the Federal District Court consent decree as supplemented.

The Moore case necessarily concludes that there is a

financial benefit in membership in the union. There is a

34a

Oral Decision of Furman, J.S.C., November 9, 1976

reference to the same line of authorities as the Falcone

case, that for a county medical society to arbitrarily, with-

out reason and without good cause, deny membership to

a doctor would interfere with his right to earn his liveli-

hood and to practice his profession.

T would also conclude on the basis of the testimony dur-

ing this trial that there is a financial advantage to member-

ship in the Loeal. If nothing else, there is relief from the

$2.50 per day travel expense fee.

Mr. Lynes has conceded, and T believe that he would

necessarily do so, and he is entirely candid about this, that

there is no requirement for a transferee that he be an all

around iron worker. The word journeyman does not ex-

clude specialists.

As I heard the testimony of Mr. MeCloud, there was no

recognized citerion that the applicant for a transfer be

an all around iron worker. An applicant might have a

specialty such as a rod man. Nor am I able to find in the

criteria, P-53 in evidence, that there is any standard or

eriterion that the applicant be an all around iron worker.

With respect to the ground of denial of application for

transfer that there was no formal training or no test, T

have to conclude that this is by itself insufficient as a mat-

ter of law in view of the factual testimony that these men

had experience; Mr. Doninich T believe back to the 1940s

and several to the 1950s. There was experience in all

cases of at least six or seven years as iron workers prior

to their rejection.

It is not a reasonable basis for rejection of experienced

iron workers who individually had never been refused for

referral to a job or removal from a job because of lack

35a

Oral Decision of Furman, J.S.C., November 9, 1976

of qualifications, it is not a reasonable basis for rejecting

the transfers of such applicants that they had not taken

any formal training or test.

As T have alluded to in the course of interrogation of

counsel, I would consider that the refinements of the Fal-

cone ease as applied to doctors should also hold here, and

that before there was a rejection for cause of a transfer

on the grounds of lack of qualifications when the man had

experience and had developed skills and had performed in

the trade, that there should be a specification of what is

said to be wrong or lacking in his qualifications.. There

should be a confrontation with witnesses or a right to con-

front witnesses, and there should be a right of cross-exam-

ination.

These hearings were not hearings in the evidential sense.

They were interviews. There was no substantive evidence

in these naked interviews themselves to support the con-

clusions that these men were not qualified by experience

and skill to be journeymen iron workers. Many of them

were not all around iron workers but they were iron

workers with a specialty.

T aiso conclude, and I believe that Mr. Lynes again

candidly has virtually conceded this, that the case, never-

theless, must rest or stand or fall on the ground for rejec-

tion on the appeal by the International Executive Board.

I’m not sure that I have given the right term for the body

that rejected it. The general executive board. All right.

As I said in granting the motion of Mr. Stern, there is

in the background of this case something of a conflict be-

tween the State Court in the Moore case and the Federal

District Court in the consent decree.

36a

Oral Decision of Furman, J.S.C., November 9, 1976

Unquestionably the results or the approach by the Local

and the International appears to fly in the face of the Moore

decision. It would virtually bar any transferees, at least

during the course of the four years.

Mr. Duff, a man of vast background as a labor lawyer,

testified to his understanding that the objective was to

reach a twenty pereent ratio of minority members of the

Loeal within a period of five years.

He has testified to his understanding that there was a

har against what is called an inundation of transferees,

Nevertheless, there is nothing on the face of the consent

decree or of the amendment imposing an eighty-twenty per-

cent ratio or balance.

There has been reliance upon the amendatory language

in P-61 in evidence, Paragraph 33B. That language per-

mits transfers, provided that the determination allowing

the transfer is made without having the effect of diserim-

inating against or exeluding any such applicant on the

basis of his race or color.

These present plaintiffs T would have to conelude have

been barred because they are White and that they do not

have Spanish-speaking surnames.

There seems to be no dispute or question that if these

were iron workers with books from other locals who were

Black or with Spanish-speaking surnames they would have

been admitted, assuming other qualifications, and would

not have been barred under the federal consent decree.

So the necessary effect of at least that language is a

reverse discriminatory effect contrary to what is now a

developing doctrine of law prohibiting reverse discrimina-

tion.

37a

Oral Decision of Furman, J.S.C., November 9, 1976

The other clause referred to is that there may be a trans-

fer unless the transfer has the effect of perpetrating the

effects of any past exclusion.

Now, it is argued, and apparently seriously and I may

say ingeniously by counsel for the Local and the Interna-

tional that that phrase is intended to protect the eighty-

twenty ratio as to safeguard or assure that the eighty-

twenty ratio would be reached at the end of five years.

There is no limitation on the total number of members

of the Local. It must have been in the background or

within the contemplation of Judge Garth as well as the

parties to the consent decree that because of expansion of

the economy, for instance, opportunities, there might be

an expansion in the total number of members.

It must also have been contemplated that there might be

an attrition as a result of deaths, retirements, and so forth.

It appears to me that this eighty-twenty did not have the

sanctity of a formula embedded into the consent decree or

the amendment. It was an objective which was discussed

in the course of negotiations which happened to fit within

the numerical proportions at the time of the consent de-

cee, that is, there was the objective of a total of three hun-

dred seventy-five in the course of five years. I believe

that’s seventy-five per year.

If there are five locals, it is fifteen per local per year

members of minorities taken in as apprentices or trainees.

The consent decree has nothing within it except as to

admissions of apprentices and trainees. It has nothing

specifically in it with relation to transferees, except the

language which I have alluded to in the amendment in

P-61.

38a

Oral Decision of Furman, J.S.C., November 9, 1976

The grounds of rejection are suspect on the basis of uni-

formity and also as heing too pat. Even taking the words

at their face value, there is nothing to suggest a harmful

discriminatory effect amounting to a perpetuation of past

exclusion if the total number of iron workers expands to

two thousand instead of fourteen hundred and the number

of minority members remains at three hundred seventy-

five. At least that is not so clear or so patent that T ean

find that that language gives sanctity to and embodies

within and imbeds within the consent decree as modified

the so called eighty-twenty formula.

[ believe that the reasons advanced, the conclusions ad-

vanced by myself a few minutes ago in dismissing the

punitive damage action against the International must

also apply to the Loeal.

With respeet to the Loeal, T eonelude that the Local acted

arbitrarily, without a reasonable basis, without « substan-

tial basis in denying the applications for transfer on the

grounds of lack of qualifications or on the grounds of the

federal consent decree.

The defendants did not seck a clarification of the consent

decree in the light of the Moore case at any time. Tt may

be that at the conclusion of this trial the defendant, Local,

and it may even be the International, will seek some elari-

fication of the federal consent decree,

Nevertheless, as I read the federal consent decree, nei-

ther on its face nor by any necessary implication nor by

any understanding or commitment which is binding upon

the parties or upon this Court is there a basis for rejecting

transferees who are qualified.

So the order of this Court or the judgment of this Court

will be that the plaintiffs are entitled to a judgment to

39a

Oral Decision of Furman, J.S.C., November 9, 1976

compel the defendant, Local 373, to admit them to mem-

bership.

Now, with respect to the damage claim, the only damage

claim that I have heard which seems to have a factual

basis would be with respect to a reimbursement for the

$2.50 per day travel expense.

I should say that there was some question with respect

to Mr. Machemull, as to his present residence, and that

the judgment would apply to admission of those now re-

siding in the area, that is, within the geographical juris-

diction of Local 373.

Are you pressing, Mr. Craner, for a compensatory dam-

age judgment with respect to reimbursement of the differ-

ential between the $2.50 expense and anything that the

Union members may pay or the Local members?

Mr. Craner: May I explain my damage claim? We are

seeking compensatory damages based upon the denial of

the right to vote and to attend meetings plus the $2.50.

The Court: You have no supporting proof of that,

though.

Mr. Craner: There’s nothing to prove. It follows, and

the Constitution says that you must be a member of the

local union in order to do those things.

Now, you can’t vote if you are not a member of the local

union, your Honor.

The Court: Don’t we have an apparent offset of the

union dues and any loss because of the expense?

Mr. Craner: No, my clients must pay dues to their local

unions just as members of Local 373 pay to their union.

My clients in addition pay Local 373 $2.50 for every day

that they work. A local man does not have to pay that

when he works within the jurisdiction of the district

council.

40a

Oral Decision of Furman, J.S.C., November 9, 1976

So that my clients, if they work in northern New Jersey,

they pay the $2.50, The local men don’t pay it. Every-

body pays the same working assessment, however.

So that we are out the $2.50, plus if your Honor eon-

siders my other damage claim, we have lost the right to

vote and to attend meetings, et cetera.

The Court: It would be sheer speculation what the value

of that would be. Isn’t that so?

Mr. Craner: Your Honor, may IT then advance this argu-

ment? I’m seeking punitive damages as well. T agree

with vour Honor that that is hard to fix a dollar amount

on. llowever, at the very least, aside from the $2.50, it is

worth at least nominal damages, and I am certainly en-

titled, if the Court decides to award it, to a punitive dam-

age award based upon nominal damages.

I am also seeking counsel fees in this matter for the

reasons that I have outlined in my brief.

If the Court will note that Judge Polow awarded fees

based on a trust fund theory,

Mr, Lynes: Judge Polow didn’t award counsel fees as far

as I know. I think that he directed at the end of the case

that Mr. Craner submit an affidavit and he would consider

whether or not he could award counsel fees against the

International. He awarded no counsel fees against the

Local, and there’s been no award of counsel fees made

whatsoever as far as I know.

Mr. Craner: That’s correct, your Honor. T would then

ask the same thing, though, but that the award of counsel

fees be against the local union.

I have briefed the point, your Honor,

The Court: The only judgment as to damages will be

a reimbursement of the $2.50 per day, and that of course

would involve an accounting as to what those figures

were,

4la

Oral Decision of Furman, J.S.C., November 9, 1976

Mr. Craner: That would be from the date of transfer

on? Is that correct? It is from the date of application

for transfer up to the present time or would it be for-

ever or what?

The Court: I think that it would be limited to the

date of rejection by the Local.

Mr, Craner: Very well, your Honor.

The Court: Auugst 13, 1975 in most cases. You may

apply for an attorney’s fee and you should submit an

affidavit of services and it would be on the trust fund

theory.

Mr. Lynes: May we submit briefs in opposition to,

that point?

The Court: Yes, you may.

CERTIFICATE

I, Sranuey Grason, a Certified Shorthand Reporter of

the State of New Jersey, do hereby certify that the fore-

going is a true and accurate transcript.

StanLey Grason, CSR

Official Court Reporter

42a

Judgment

(Filed—January 19, 1977)

Superior Court or New Jersey

CuHancery Division—Muipp.esex Country

Docket No. C-2156-75

Crviz. Action

Parr W. Munpy, Vincent Hi. MacHemvutyt, Josern

Doutnicu, Donan McManon, THomas McC oskey, Joun

J. Krusis, Epwarp Fartey, Pavt Boncarp, Jr., CHARLES

C. Borroy, Wiu1Mm B. Crawrorp, Pxinip CoNNELL,

Wittum J. Surma, Louis DiCapva, Henry ARMINAS,

Joun McFappen, Josepn Tom, James Fox, Arruur

Smirn, Puiu Suapy, Frank P. Casreiano, Jr., Ron-

ALD Benrretp, Jerrrey R. Corermor, Frank O'NEILL,

Grorce Morcan, Ler Zpunex, Leon Apuer, and CHarves

THom,

Plaintiffs,

Vs.

Loca. Union No, 373, InrernationaL ASSociATION oF

Brivce, Srructura, & Ornamentat Ironworkers, AFL-

CIO and IyxrernationaL Association or Brivcr, Struc-

TURAL & ORNAMENTAL TRoNWorKERS, AFL-CIO,

Defendants.

43a

Judgment

This matter having come on for trial before the Court

sitting without a jury, on November 8 and 9, 1967, John

A. Craner, Esq. (Craner, Brennan & Nelson) attorney

for plaintiffs, Jerome M. Lynes and John J. Mulvihill,

Esqs. (Nolan, Lynes, Bell & Moore) attorneys for defend-

ant, Local 373, and Thomas Parsonnet, Esq. (Parsonnet,

arsonnet & Duggan) and Harold Stern, Esq., attorneys

for defendant, International Association of Bridge, Struc-

tural & Ornamental Ironworkers, AFL-CIO, and the Court

having taken testimony in open court and having heard

the arguments of counsel, the Court having announced its

opinion in open court, and the International having rep-

resented in open Court that it would not take action to

interfere with the transfer of membership ordered by the

Court, and

It is on this 19 day of January, 1977, Ordered that

Judgment be entered in favor of plaintiffs and against

defendant, Local Union No. 373, International Association

of Bridge, Structural & Ornamental Ironworkers, AF'L-

CI@, directing said defendant to immediately take into

its membership each and every plaintiff, in accordance

with the constitution of the International and to issue the

necessary indicia that each plaintiff has so been trans-

ferred into defendant, Local 373. With respect to Vin-

cent H. Machemull, transfer is conditioned upon his re-

siding within the territorial jurisdiction of defendant,

Local 373.

It is further Ordered that Judgment be entered in

favor of each plaintiff directing defendant Local 373 to

refund to him all travel service dues paid to Local 373

from the date each plaintiff was rejected for transfer by

Local 373 until the date of the actual transfer of each

plaintiff.

44a

Judgment

It is further Ordered that Judgment be entered in

favor of plaintiffs and against defendant Local 373 award-

ing to the attorneys for plaintiffs the sum of $500.00 as

and for their counsel fees. Counsel for plaintiffs may

make further application for counsel fees after the issue

of counsel fees in other visinages where similar actions

are pending has been resolved and may also offer spe-

cifie proofs as to the dollar amounts involved for services

rendered in this particular case.

It is further Orperen that the motion of plaintiffs to

add dward Kutchman and Walter Clark as party plain-

tiffs is denied.

It is further Ordered th» Judgment be entered in

favor of defendant, International Association of Bridge,

Structural & Ornamental Ironworkers, AFL-CIO and

against plaintiffs dismissing the complaint as to it.

Davy D. Furman, J.S.C.

45a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

Superior Court or New JERSEY

CHAMBERS OF

Arrnur C. Dwyer

J UDGE

Chancery Division

Essex Country Courts Bupa.

NEWARK,

John J. Bracken, Esq.

Bracken & Craig, Esqs.

11 Commerce Street

Newark, New Jersey 07102

Ronald J. Nelson, Esq.

Craner, Brennan & Nelson, Esqs.

1143 East Jersey Street

Elizabeth, New Jersey 07201

Joseph M. Nolan, Esq.

Nolan, Lynes, Bell & Moore, Esqs.

60 Park Place

Newark, New Jersey 07102

Thomas L, Parsonnet, Esq.

Parsonnet, Parsonnet & Duggan, Esqs.

10 Commerce Court

Newark, New Jersey 07102

Re:

Esposito, et als

v. Local 11, Ironworkers, et als

Docket No. C-2155-75

N. J. 07102

March 21, 1977

46a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

Gentlemen:

In the Complaint filed herein, ten individuals who hold

“books” issued by a local union affiliated with defendant

International Association of Bridge, Structural & Orna-

mental Ironworkers, AFL-CIO (“International”) other

than defendant Local Union No. 11 (“Local 11”) sought

in this action to recover compensatory damages for Local

11 wrongfully refusing to transfer their respective mem-

berships from the other locals to Local 11 as well as an

order of this court directing said transfer of membership

together with counsel fees. At the Pretrial, they also

claimed punitive damages.

Thereafter, three other individuals who were similarly

situated and who had previously brought such an action

(McFadden, et al v. Local 11, et al, Docket No. C-4230-75)

which resulted in a judgment directing reconsideration of

the prior applications moved to and were permitted to

join this action, They seek relief similar to the original

plaintiffs. The prior decision was the result of the deci-

sion of the New Jersey Supreme Court in Moore v. Local

483, 66 N.J. 527 (1975) and Philipchuk, et al v. Inter-

national Association, AFL-CIO, 66 N.J. 539 (1975). The

judgment permitted “* * * questions as to qualifications

but not to include tests * * *”, .

Plaintiffs herein means all thirteen individuals.

The Answer of the International admitted that the ten

original plaintiffs were members in good standing in the

International and the locals other than Local 11. In other

respects it asserted the autonomy of Local 11 to make

decisions concerning transfers, it lacked knowledge con-

cerning activities of Local 11, Complaint made no allega-

tions of misconduct on its part, and any plaintiff who

47a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

had not appealed Local 11’s decision had failed to exhaust

internal remedies.

The Answer of Local 11 denied that the ten original

plaintiffs or the three added plaintiffs were members in

good standing of the International or the other local. It

admitted the rejection of the transfers. It asserted any

Plaintiff who did not take an appeal failed to exhaust

internal remedies. It asserted a separate defense that the

court lacked jurisdiction because the United States Dis-

trict Court had entered a Consent Decree in United States

of America v. Plumbers Local 24, et al., on July 28, 1976

as amended and supplemented which controlled all hiring

practices and therefore preempted the matter. It asserted

that Local 11 properly exercised its discretion under the

International Constitution and was sustained by the Inter-

national. It asserted that Plaintiffs obtained their mem-

berships in other locals by fraud and hence are barred

from seeking equitable relief.

Both International and Local 11 deny Plaintiffs have

any right to counsel fees.

A review of such recent cases as Ferger v. Local 48%,

94 N.J. Super. 554 (Ch. 1967) aff'd 97 N.J. Super. 505

(App. Div. 1967) and Moore v. Local 483, swpra, as well

as the related cases in the United States District Court

for New Jersey and the Court of Appeals for the Third

Circuit, show that there is a history of conflicting inter-

ests among those engaged in the work done by the Tron-

workers and those involved in the union movement active

in that jurisdiction which undoubtedly has become more

aggravated by several recent Federal laws and particu-

larly those laws found in Title VIT of the Civil Rights Act

of 1964, 42 USCA 2000e, et seq., coupled with the decline

in construction and resultant loss of construction work,

48a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

the issues in the minds of many have to be “bread and

butter” if not survival issues. This is also evident from

the testimony. It is not the function of this court to har-

monize and resolve all those problems.

It is the function of this court to decide the issues

posed by the parties in this action. The ten original plain-

tiffs have withdrawn as much of their claim for compen-

satory damages as relates to wage loss based on discrim-

inatory hiring practice because of a pending hearing be-

fore the NLRB, Tenore one of the three added plaintiffs

has similarly withdrawn his claim for compensatory dam-

ages. The court earlier ruled on offers of proof that Plain-

tiffs would show from records of the pension fund asso-

ciated with Local 11 that members of Local 11 with al-

legedly similar experience had earned more than Plain-

tiffs that the court was preempted from going into that

area based on the cases set forth in the record. The court

further ruled that payment of travel dues of $2.50 for

each week or part thereof worked by a Plaintiff remained

in the case. See concurring opinion of Justice Fuld in

Phalen vy. Theatrical Protective U. No. 1, 22 N.Y. 2d 34,

290 N.Y.S. 2d 881 (1968) cert. den. 393 U.S. 1000 and

NLRB y. Allis Chalmers Mfg. Co., 8388 U.S. 175, 184, 186,

87 8.Ct. 2001, 18 L.Ed. 2d 1123, International Association

of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2

L.Ed. 2d 1018.

The separate defense based on total preemption because

of the Consent Decree was not seriously pressed. Indeed,

it could not be. The decree as amended by order of Sep-

tember 1973 expressly permits transfers.

33 (B) “During the effective period of this De-

cree, to the extent that the defendant locals accept

49a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

into membership individuals holding journeyman

membership in non-defendant locals of the Interna-

tional they shall accept or deny the membership

applications of such individuals according to the

rules and regulations of the defendant locals and

the International governing such transfers, pro-

vided that such determinations shall be made with-

out having the effect of discriminating against or

excluding any such applicant on the basis of his

race or color, or of perpetuating the effects of any

such past exclusion, and provided further, that all

such transferees must meet the minimum qualifica-

tions under Paragraph 33(A) herein.”

The relevant portion of Paragraph 33 (A) setting forth

the minimum standard is:

“Bach defendant local shall offer full journeyman

membership to any black or Spanish surnamed

American, who either:

(1) has six months experience in the ironwork-

ing trade (including but not limited to shop work

and construction laborer work); or * * *”.

This is the minimum standard.

The courts of the various states have jurisdiction to

protect the rights of members of unions afforded them

under the constitution or charters of the union organiza-

tion. International Association of Machinists v. Gonzales,

swpra, see authorities in f.n. 7 in Ferger v. Local 483,

supra, at p. 569.

The following facts are undisputed. Each of the Plain-

tiffs obtained a membership book in a local other than

50a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

Local 11. Each of the Plaintiffs is a resident of the north-

ern New Jersey area and was at the time he obtained a

membership book in the other local. Each has paid dues to

the other local regularly. Each has obtained a clearance

card from the other local for transfer to Local 11. Each

has filed the clearance card with Local 11. Each has ap-

plied for transfer to Local 11 and been rejected. Loeal 11

has sent to each of the Plaintiffs a letter setting forth

the reasons for rejection.

In respect of the three added Plaintiffs the Executive

Committee of Local 11 conducted an interview on April

10, 1975, The letters of rejection sent by Local 11 were

substantially identical. The reasons stated for rejecting

the transfer were:

1. In applying for membership the individual had mis-

stated his work experience. The local did not give

a test. He had not completed an apprenticeship

program. Local 11 referred to See. 6 of Art. II

of the International Constitution which provides

that

“Any membership gained by false pretenses or

misrepresentation shall be revoked,”

2. Local 11 could not make any determination as to

transferee’s qualifications to be a journeyman iron-

worker because transferees refused to answer ques-

tions about same.

3. The last reason was that under the consent decree

“* * * requiring us to admit to membership a

group of minority workers equal to 20% of our

total membership. We must be very careful in

5la

Letter Opinion of Dwyer, J.S.C., March 21, 1977

this respect to comply with the Order and we do

not want to increase the number of minority

workers by an unreasonable number especially at

a time when we are now applying for relief from

that Order.”

Likewise the letters to the other ten Plaintiffs were

identical to each other except for the names. A copy of

one of said letters is attached as Appendix A, rather than

copy it.

In essence the Executive Board found these transferees

“had no formal training in the various phases of iron-

working” and had never been tested. It further found

that these transferees had not acquired the necessary

training and experience to qualify as “an all around jour-

neyman ironworker.”

The Executive Board referred to the consent decree

that required it to have 20% minority journeymen and

apprentices by 1977 and concluded:

“Counsel has, therefore, advised the Executive

Board that the acceptance of white transfers at

this time would place Local 11 in jeopardy of vio-

lating its commitments and obligations to the Gov-

ernment.”

The International sent identical letters to all the Plain-

tiffs. This appears to be consistent with the practice of

the General Executive Board in issuing guidepost deci-

sions where facts are similar. Mr. Lyons on deposition

testified that an investigation had been made; that he met

with the Business Agents for the locals of the District

Council for Northern New Jersey, and explored the con-

sent decree,

52a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

_He further explained that the International had a spe-

cial department that monitored consent decrees and kept

copies of all such documents at Headquarters,

In respect to Northern New Jersey he said:

“* * * the consent decree stipulated specifie per-

centages of ironworkers and if you are going to

have specifie percentages or ironworkers each year

growing, you are going to have to have an employ-

ment capability of having ironworkers employed.

The employment situation in Northern New Jersey

we have been working with and are aware of for

some period of time. * * *”

a ;

“* * * the conclusion I should say that the employ-

ment opportunities for ironworkers in Northern

New Jersey is very, very bleak * * *” See pp, 22-

23.

At p. 29-30 Mr. Lyons said that he was aware as were

the other members of the General Executive Board the

Consent Decree contained no specific percentages. The

Board had a copy of it. He further stated the knowledge

about percentages was based on what the Business Agents

told them,

“* * * what they had agreed to that would ulti-

mately be put in the final version and we coucluded

that they were telling us the truth based upon the

fact that what they were saying to us is the same

thing that we have seen time and time again in

consent decrees across the country, these three ele-

ments: A number, a time and the end result.” * * *

“Now, on the point of the end result the Govern-

ment was asking for a percentage of the numbers,

this is what the Local told us. * * *” (p. 31)

53a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

The reason for the percentage at the end of the decree

was that minorities then would have a political voice in the

Local Union. (See p. 32)

The letters from the International were all identical ex-

cept for dates and names. The General Executive Board

stated it would only comment on the Civil Rights reason.

It stated:

“With respect to the Civil Rights reason, the Gen-

eral Executive Board noted that every local union

affiliated with this International Association has

rights of local autonomy and in accordance with this

principle has the discretionary right to protect the

interests of its members, provided the use of such

discretion is not capricious. In this connection there

is presently outstanding a United States Court de-

eree which requires and directs five local unions

affiliated with this international Association—all lo-

cated in northern New Jersey, including Local Union

No. 11—to admit into membership black journeymen

on a quota basis and sets a goal to be reached by

1977. This decree was issued by the United States

District Court on the basis of a formula that estab-

lished an end result which included both the number

of admissions of black journeymen and a percentage

of black to white membership. If Local Union No.

11 were to transfer you and others who have applied

at this time, the addition of such transfers could

cause an imbalance which might prevent the local

union from achieving its commitment to the Federal

Court because of circumstances over which it has

no control.

“The General Executive Board recognizes, of

course, that there are no limitations on the number

54a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

of individuals who may be admitted to Local Union

No. 11. However, as you must be aware, a serious

unemployment problem exists in the construction in-

dustry at the present time and in the foreseeable

future in northern New Jersey which seriously af-

fects the employment of iron workers.”

Harold Stern, Esq., General Counsel for the Interna-

tional stipulated that if the court ruled adversely on the

Civil Rights defense, the International would not then de-

cide on the other grounds. Loeal 11’s time for appeal with-

in the Constitution of the International has expired.

For completeness the issues for decision are:

1. Is Loeal 11’s expressed desire not to disturb

the projected number of minority members in rela-

tion to the 1972 membership of 5 affiliated locals a

reasonable basis for rejecting the transfers?

2. If it is not, are the other reasons advanced

reasonable grounds for rejecting the transfers with-

in the guidelines of Moore v. Local 483, supra?

3. If 1 and 2 are answered negatively, is Local

11’s and the International’s action based on reasons

so invalid that such action must be regarded as arbi-

trary or capricious?

Before taking up the issues in the order stated, the court

notes that the attorney for all the locals prepared a set

criteria to be used for judging requests for transfers. Local

11 adopted it in March 1975. It was never distributed. The

explanation was that no one had asked for it. The attor-

neys, during the litigation didn’t even seek it by interroga-

tory. It was produced during the evidence presented by

55a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

Local 11. The reasons set forth for rejection bear some

relation to said criteria.

The Consent Degree was agreed to by all parties, which

ineluded Local 11 and the other locals in the Northern New

Jersey District Council, in February 1972 except as to

membership requirements. Footnote 5 to Judge Garth’s

decision dated December 22, 1972. The issue of member-

ship in the locals for the ironworkers was litigated.

Judge Garth set forth in finding 13 that from 1963 to

1972 there were three methods of gaining admission to the

locals, including Local 11:

(i) successful completion of the apprenticeship pro-

gram;

(ii) with respect to defendant Locals 11 and 483, sons

and other relatives of incumbent members, all

white, have been admitted directly to journeyman

membership in the defendant locals without the

necessity of having served in the Ironworker JAC

program. * * *

(iii) with respect to defendant Locals 45, 373 and 483,

sons and other relatives of incumbent members,

all white, have been transferred into journeyman

membership in the defendant ironworker locals

after having obtained ironworker journeyman

membership in ironworker locals located outside

the Northern New Jersey area.

Judge Garth then decreed the following as the language

for paragraphs 33.(A) and (B):

56a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

*33.(A) Each defendant local shall offer full jour-

neyman membership to any applicant who either:

(1) has six months experience in the ironwork-

ing trade (including but not limited to shop work

and construction laborer work) ; or

(2) has suecessfully completed an ‘approved’ ex-

amination or test.

(a) An ‘approved’ examination or test is any

valid, written examination or test capable of ob-

jective evaluation or grading, which test reason-

ably measures and is demonstrably related to

the individual’s ability to perform the normal

day-to-day work required of an average jour-

neyman ironworker,

(b) The validity of any such test shall be de-

termined according to Guidelines on Employee

Selection Procedures, 29 C.F.R. §§1607 et seq.

(1972), and the use of such test shall be ap-

proved in writing by the plaintiff prior to its

use by the defendants,

“33.(B) All applicants for full journeyman mem-

bership, including applicants who have already at-

tained journeyman membership in a local not a party

to this action or in the International, must satisfy

the requirements as set forth in paragraph 33.(A)

above.”

The local unions, including Local 11, then appealed Judge

Garth’s decision. There is testimony that the reason for

the appeal was that the language in Paragraph 33.(A) (1)

would destroy the apprenticeship program. But see Para-

graph 38(e) of the Consent Decree.

57a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

An affidavit of Wallace, Business Agent for Local 11,

filed in support of a stay pending appeal stated in part:

“oe, There are presently pending 19 requests from

White members of other locals in the International

for transfer into the defendant Locals, pursuant to

the Order: notwithstanding the fact that these indi-

viduals are not minority group members nor have

they been discriminated against in employment re-

ferral. Deponent respectfully submits that unless

a stay is entered, the defendant Locals will be in-

undated with transfers from White members of other

locals. At present, there are approximately 1900

members of other locals working within the terri-

torial jurisdiction of the defendant Locals. With-

out a stay, such men would be eligible for transfer

regardless of their color or other Union affiliation

pursuant to the Order subject to the appeal herein.

In July 1973 the Government and the other parties en-

tered into a further stipulation that set forth Paragraph

33A and 33B set forth above. It also changed Paragraph

38(e) to read as follows:

“Any apprentice or trainee who resigns or whose

apprenticeship or trainee program 1s terminated for

any reason except by reason of illness, injury, or

military service shall forfeit all referral rights for

a period of one year, and no work experience ob-

tained as an apprentice or trainee shall be applied

to work experience necessary for union membership

pursuant to paragraph (33) (A) ( 1) herein. Such

persons shall, however, have the right to reenroll in

any subsequent year in the apprenticeship or trainee

programs without forfeiture of any completed year

of training.”

58a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

The language quoted immediately above made it clear

that no apprentice dropout would gain membership under

Par. 33(A) (1).

The language in Par. 33(B) sets up four criteria:

“1. transfers shall be accepted on the basis of the rules

and regulations of the International and local Con-

stitutions governing transfers;

2. such transfers shall be determined without the * * *

; etre callers :

effect of discriminating against or excluding any

such applicant on the basis of his race or color * * *

3. *e8 transfers shall not assist in ‘* * * perpetuating

the effects of any such past exclusion * * *’: and

4, all such transferees must meet the minimum qualifi-

cation under Par. 33(A) herein.”

The basis for any discussion of a percentage factor is

found in Par. 38(¢) which states:

“The JAC shall select and indenture each year no

fewer than 75 minority applicants that qualify if

available, in the Tronworker ISmployer Training

Program and in the Apprenticeship Training Pro-

gram under the selection procedures listed above

for a period of no less than five (5) years. The good

faith goal shall be to indenture an equal number of

applicants in cach program, but in any event to in-

denture no less than 25 minorities in the apprentice-

ship program.” (Emphasis added). |

This language is part of the original bargained for por-

tion of the Consent Decree. Plaintiffs urged that under the

parol evidence rule no testimony should be allowed about

59a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

negotiations between the Government attorneys and attor-

neys for the local to show that a 20% membership goal was

to be attained at the end of 1977 so that minorities would

have a political voice in the locals.

Local 11 urged that there was some ambiguity. The court

allowed the testimony. Those who testified for Local 11

were Wallace, the Business Agent, attorneys Kennedy, a

specialist in Title VII matters, and Duff the regular attor-

ney for Local 11.

The thrust of their testimony was that 375 was based

on adding that number to the number 1400 which was the

membership for all five locals which then made 375 20%

of the projected 1977 membership. Arithmetically the cal-

culation is wrong for 375 is 20% of 1875.

However, there are more substantial problems with the

testimony. The numbers relate to applicants not journey-

men at the end of a three year program, The Consent

Decree itself recognizes that there will be attrition. In

fact the testimony establishes the greatest attrition is with

minorities.

Careful review of Kennedy’s testimony shows that the

Government never talked in terms of a “quota” but good

faith goals. The only definite number mentioned after

“rood faith goal” is 25 per year for five years or a total

of apprentices of 125. If this were attained the impact

politically on the locals would be far less than 20%.

The court accepts the Plaintiffs contention that the

proper standard for construing a consent decree in respect

to purpose is set forth in United States of America v.

Armour & Co., 402 U.S. 673, 29 L.Ed. 2d 256, 91 S.Ct. 1752

(1971)

60a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

“* * * the scope of a consent decree must be discerned

within its four corners, and not by reference to what

might satisfy the purposes of the parties to it * * *”

[402 U.S. 681].

The cases collected in the footnotes to Justice Pashman’s

dissent in Lige v. Town of Montclair, 72 N.J. 5 (1976) at

p. 27 et seq. demonstrate that the United States of America

knows how to spell out a quota program when it desires

one.

Significantly no witness from the Department of Justice

or EEOC was called. No brief amicus curiae was re-

quested.

The court concludes on the testimony of the witnesses of

the defendants that no quota system was ever agreed to.

The court concludes that construing the Consent Decree

within its four corners none can be spelled out.

The training commitment is that of JAC an independent

legal entity from the locals.

The court will consider the fourth criteria in the Consent

Decree in reverse order.

The undisputed evidence is that each of the Plaintiffs has

worked for five years or more in one or more of the eight

branches of ironworking referred to in Paragraph 6 of

the Consent Decree. Each of said Plaintiffs has been re-

ferred out for work by the hiring hall of Local 11. Each

of the July 22, 1975 letters of rejection in essence implies

the rejected transferee will be continued to be referred out

on a non discriminatory basis.

This is sufficient to satisfy the fourth criteria and the

court so finds.

6la

Letter Opinion of Dwyer, J.S.C., March 21, 1977

The effects of such past exclusion were threefold. They

excluded minorities. They gave preferences to sons and

relatives of members of certain locals. Local 11 is not

picked out as one of such locals by Judge Garth. Except

possibly in the ease of Surrinski, the court does not recal+

that any of the Plaintiffs are sons or relatives of members

of Local 11. In the ease of Surrinski, the court recalls

that his father assisted him in getting a book in the Seran-

ton local and worked with him. If his father is a member

of Local 11 or any of the others are sons or relatives, then

that matter should be separately explored with EEOC

which is now in charge of enforcement. The admission of

these Plaintiffs will neither further discrimination nor re-

duce job opportunities for they are already in the active

job market with other members of Local 11.

The July 22, 1975 letters state:

“Counsel has, therefore, advised the Executive

Board that the acceptance of white transfers at this

time would place Local 11 in jeopardy of violating

its commitments and obligations to the Govern-

ment.”

That reason violates the second criteria of the Consent De-

eree, It also amounts to the reverse discrimination re-

ferred to in Lige v. Town of Montclair, supra. See discus.

sion at p. 19.

The court in this action is not dealing with a class of

1900 members referred to in the Wallace affidavit. It is

dealing with thirteen identifiable persons and Local 11

and the International.

This leaves the first criteria of the Consent Decree.

This in essence is the same standard as mandated by

62a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

Moore v. Local 483, supra. Except for the 1968 amend-

ment to the International’s Constitution which change the

criteria from automatic transfer, Ferger v. Local 483, 94

N.J. Super. 554 (Ch. 1967) aff'd 97 N.J. Super. (App.

Div. 1967). Accordingly, the court will consider this under

point 2.

The court concludes that the reasons given by Local 11

and the International based upon the consent decree are

not well founded.

If the Consent Decree is construed as contended by

defendants the effect is to exclude all whites over age 30

from admission and reduce the means for admission for

whites to an apprenticeship program. The New Jersey

Supreme Court has already ruled that the type of ad-

mission for individuals such as Plaintiffs must be by

means other than apprenticeship. Moore v. Local 527,

supra.

“The transfer of such journeymen members should

not be barred because of a decision to restrict mem-

bership to those who have participated in an ap-

prenticeship program.” (66 N.J. at 537).

In Ferger v. Local 483, supra, the court did not have to

construe and apply the provisions of Article XXI, Sec.

30 and 31 of the International Constitution as amended

in 1964 which required that transfers be approved by a

majority vote of the membership of the local into which

an individual sought to transfer membership. It noted

that the Executive Committee had the power to inquire

into “the character and qualification” of the individual

seeking transfer.

63a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

“While the International constitution has been

amended to grant the above-mentioned discretion-

ary right to local unions in accepting transfers,

nothing was done to the constitution by way of

supplement or amendment so as to effect a change in

the requirements or qualifications for membership

in the International Union. Those requirements,

as set forth in article II, sections 1 through 6,

have remained unchanged. There is nothing in

the record of the federal proceedings, or in the pro-

ceedings in this action, which even remotely indi-

cates that there is some change in the status of any

plaintiff with respect to his membership in the

International Union. I cannot accept any suggestion

that the discretion given to local unions under

the constitutional provisions quoted above is one

of unbridled nature. It is not difficult to conceive

of situations in which the exercise of the ‘discre-

tion’ granted to local unions might become arbi-

trary or unreasonable. Obvious examples would

be the refusal to accept a member by transfer

solely because of race, creed or ethnic origin. * * *”

(94 N.J. Super. at 573).

Earlier the court had noted that after the Federal liti-

gation referred to, the local had urged in the Ferger case

the transferors had obtained membership by fraud and

without complying with professional standards. But it

ruled that the prior Federal litigation disposed of those

defenses.

In 1968 the International Convention changed Sections

30 and 31 to read:

“See, 30. A member of the International Asso-

ciation who desires a clearance card for the pur-

b4a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

pose of transferring his membership to another

local union must be a member of the International

Association for at least two (2) years. Any mem-

ber who has been a member of the International

Association for at least two (2) years, desiring a

clearance card for the purpose of transferring his

membership to another Local Union shall apply

to the Financial Secretary of his Local Union, and

if such member is in good standing in his Local

Union, and no charges are pending against him,

the Financial Secretary shall grant a clearance

card upon the payment by the member of unpaid

dues, or other obligations, plus One Dollar ($1.00)

for the clearance card, The Financial Secretary of

the said Local Union, upon issuing said clearance

card, shall report the same to the next meeting of

the Local Union, and report same on a regular

monthly report submitted to International Head-

quarters.

“See. 31. Thereafter a member obtaining a clear-

ance card inust present the same to the Local Union

into which he desires to transfer, for acceptance

by it, and the matter shall be referred to the Execu-

tive Committee of the local union which shall ac-

cept or reject such clearance card within the dis-

cretion of the Exeeutive Committee. The decision

the Executive Committee of either acceptance or

rejection of the clearance card shall be subject to

review by the General Executive Board.

As stated earlier, there is no dispute that each of the

Plaintiffs procedurally complied with all steps required

under 80 and 31 of Article XXI.

65a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

In Moore v. Local 483, supra, the New Jersey Supreme

Court recognized that the Executive Committee should

consider a prospective transferor’s “qualifications” and

that the local in the first instance should establish criteria

by which transfers would be judged. 66 N.J. at 537.

Local 11 did adopt criteria, Ex, DL-10, in March 1975

to judge transfers. Local 11 introduced them, The con-

tention is that the transfers were judged by these criteria.

The court has the benefit of a transcript of the inter-

views held for the original ten Plaintiffs. The testimony

establishes the interviews for the added three were sub.

stantially similar.

The criteria are:

“1, Criteria relating to origin of applicant’s contract

right of transfer.”

Under this heading four questions are taken from the

membership application which are:

No. 6 How long have you been following the trade?

No. 7 Are you able to command the average wage in

this locality?

No. 8 Are you in sound health?

No. 9 Are you willing to take an obligation that will in

no wise conflict with your religious beliefs on

your duty as a citizen?

2. Criteria respecting qualifications?

3. Criteria relating to required residency?

4. Criteria relating to health?

5. Criteria relating to union obligation?

66a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

In Query No. 6 criteria it is stated that long period of

training is desirable and the requisite period of the ap-

prenticeship is about what time it takes to acquire skills

of “Journeyman Ironworker”, as distinguished from

specialized branches. The latter are recognized in the

referral system spelled out in the Consent Decree, On

page 5 it then states 5 to 15 years experience is the time

needed to acquire the skills without an apprenticeship.

In Moore v. Local 483, supra, apprenticeship was ruled

out for the type of transferor involved here.

By reason of the bargaining over the very issue of

transfer membership in Par. 33(a) of the Consent Decree,

Local 11 agreed six months was reasonable for member-

ship. Although there is a two year period before transfer

is possible Art. XXI §30, if six months experience is

adequate for direct membership as a construction laborer

how can five years as an ironworker be inadequate?

The evidence shows that each of the Plaintiffs has five

years and some more than 15 years.

In Query No. 7, the criteria suggest the reference is

competence to perform work adequate to receive the wage

rates in the area of the District Council and that resi-

dence should be in that area.

The Criteria on page 7 refers to the fact that the ap-

plication blank requires a certification that the answers

are true, particularly those as to qualification, and that

if false the individual may be debarred.

The findings of Judge Garth as to what Local 11 did in

its own admissions prior to 1972 raise substantial ques-

tions as to whether or not at the time Plaintiffs filled out

their applications that under prevailing practices there

was any deception.

67a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

But more to the point, each of the Plaintiffs has demon-

strated qualification for over five years. The question is

transfer not original application.

Aside from the fact that the International suggested

their reasons could only be inquired into at a hearing

where presumably the officers of the other locals would

be available and the scope of everyone’s knowledge ex-

plored, there are substantial factors of waiver and estop-

pel.

The Criteria is replete with random references to ele-

ments of contract law such as fraud. However, no where

is reference made to materiality, laches, waiver, acquies-

cence, or estoppel if not ratification. There is reference

to the “all around ironworker”, the specialist ironworker,

and the shopman which is deemed irrelevant.

It is not necessary for this court to comment on the

statements that in bargaining the business agents repre-

sent only “all around ironworkers”. There is no testi-

mony by defendants that any exist except by sugggestion

that the apprenticeship graduates may. It is not a term

foun] in the International Constitution. The suggestion

that transferors must be “all around ironworkers” is un-

related to the facts in the record or the referral for work

testified to.

The tests suggested have none of the safeguards of ob-

jectivity suggested by Judge Garth and were not admin-

istered as a matter of fact.

In respect to residency the evidence establishes most if

not all of the Plaintiffs own their homes in the District

Council area at the time of requesting transfer.

68a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

In respect to health there is no showing any applicant

was not in good health or incapable of work. If health

is a question, a medical examination would be appropri-

ate. See comment below on Durante.

In respect to taking an oath, the nature, form and con-

tent of the oath are not set forth except as to the appli-

cation blank. If one is desired as many organizations do

it can be taken when the transferors are sworn in. There

is no showing or suggestion that any Plaintiff has been

disloyal to the union movement generally, the Interna-

tional, the Local to which he belongs, « ¢ Local 11.

Good moral character is a relevant factor. There is no

showing that any Plaintiff lacks good moral character.

The court will now consider the specific reasons set

forth in the letters dated July 22, 1975.

The Constitution of the International sets forth the re-

quirements for membership:

Articie LI.

Membership

“See. 1. This organization shall consist of an un-

limited number of bridge, structural, ornamental,

reinforced concrete iron workers’, machinery

movers’, stone derrickmen’s, shopmen’s and navy

yard riggers’ local unions, and the various members

thereof, and it shall not dissolve so long as any two

local unions oppose such dissolution.

“Membership Requirements

“Sec. 2. To be admitted to membership in any

local union of the International Association one

69a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

must be a practical workman versed in the duties

of some branch of the trade as set forth in See-

tion 1 of this Article, of good moral character and

competent to demand standard wages.”

Sec. 3-6 are prohibitions against persons who be-

long to organizations that in substance would sub-

vert the United States of America and/or the

union movement, the International or any local

thereof.

Each local is given authority to adopt its own by-laws

(Art. XXI §4) provided the same do not conflict with

Article XXVI “Constitution Governing all Local Unions.”

There is no provision therein dealing with membership.

Article TV sets forth the claimed jurisdiction. A local

might very well specify an area or degree of competence

for membership. Local 11 has introduced no evidence that

it has any such requirement.

Except to the statements in the Criteria about “an all

around ironworker”, there is no evidence to support a

finding that said criteria was ever employed in practice.

By reason of Local 11 agreeing to the referral system

in the operation of its hiring hall by branches in the Con-

sent Decree and by reason of the fact that the hall has

been so run for at least four years and one of said years

regarded as excellent for construction work and iron-

workers, the court finds that this reason is not only not

supported by the evidence, but is contradicted by the evi-

dence including the evidence produced by Local 11. Pre-

sumably the all around ironworker could do every task

for each branch of work on the referral questionnaire.

The reference in the letters to “no forma! training” if

construed to mean apprenticeship the Supreme Court has

already ruled invalid.

70a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

The letters also indicated no evaluation of the facts.

DeMaio testified that after he had his book “* * * I went

to Local 11’s apprenticeship school. * * * When T first

came into the business I went through welding and I

learned everything else with Hank. * * * We went two

terms with them. * * * I would say ’68, 69. * * *”

In response to the question

“* * * what kind of work have you done?”

“A. A little bit of everything.

(). Can you make it more clear?

A. I have done finishing, I have done roads, |

have done a little rigging, I did a little bit of—l

did some sheeting. I did miscellaneous iron.” (See

p. 31 DL-11).

Ife received the same form letter as everyone else.

The court will not comment on each interview. In gen-

eral, DL-11 shows that the ten had varying experience,

had been referred out by Local 11, were never fired for

incompetence but one was fired for being 20 minutes late

from lunch when he encountered a problem in cashing a

check, apparently cooperated with Local 11, felt Local 11

members were favored in job assignments, and wanted to

participate in Local 11 in seleeting those who represented

them.

In respect to the additional three, the reasons set forth

in their letters are that their memberships were obtained

by fraud and hence the Local did not want members who

could be expelled, that they had refused to answer ques-

tions about qualifications, and Local 11 did not want to

violate the Consent Decree.

Tla

Letter Opinion of Dwyer, J.S.C., March 21, 1977

Each of these refused to answer certain questions on

the advice of counsel that no tests were to be adminis-

tered.

The persons conducting the interviews included one who

gave out work assignments. DL-11 p. 97.

No witness for Local 11 testified as to what competence

was needed, From the testimony of Wallace the court con-

cluded that the applicable collective bargaining set the

wage scale for ironworkers, with a differential for ap-

prentices and trainees but that otherwise as to the

branches specified in the referral form there was no dif-

ference. The court finds that there was and is no sepa-

rate category of “general all around ironworker”.

The court finds it significant that in the July 22, 1975

letters that Local 11 did not find the difficulty with ob-

taining membership worthy of mentioning as a ground for

refusing transfer even though it stated it had inquired

into it.

Based on the record in this action, the court finds that

any problem surrounding the original application for

membership not a valid reason for denying transfer.

Defendant correctly states that an action at law in lieu

of mandamus may be brought to enforce rights of mem-

bership. Zeliff v. Knights of Pythias, 53 N.J.L. 536 (S.Ct.

1891). But they are wrong in asserting that the presence

of a “discretionary power” in Local 11 ends all right of

Plaintiffs to any judicial review where that discretionary

power has been exercised.

The question here is whether there was good faith exer-

cise of that power or was it arbitrary and/or capricious.

72a . 73a

Letter Opinion of Dwyer, J.S.C., March 21, 1977 Letter Opinion of Dwyer, J.S.C., March 21, 1977

Then Vice Chancellor Jayne stated the test for judicial Div. 1965), certif. den. 49 N.J. igh ely goye

review of action by a labor union in expelling a member v. Board of Education, 78 ee ‘Srna Mill /

in Dragwa vy. Federal Labor Union No. 23070, 136 N.J. (App. Div. 1962); Tullo v. Towns ‘p of lburn,

Nq. 172 (Ch. 1945) as: | 54 N.J. Super. 483, 498 (App. Div. 1959). We con-

“* * * It is to be realized that Chancery does not

furnish a retrial of the case to determine anew the

guilt or innocence of the union member (citations

omitted—ed.). The inquiry when undertaken by

this court is usually concentrated on the good or

bad faith inspiring the action of the union and on

whether the expulsion of the member and the un-

derlying causes are capricious or contrary to pub-

lie policy and natural justice.” (136 N.J. Eq. at

174).

sider the same standard of review appropriate with

respect to decisions of governing boards of hospi-

tals, such as the determination here being examined.

See Duffield v. Memorial Hospital Association of

Charleston, 361 F.Supp. 398, 404 (S.D.W.Va. 1973) ;

Davidson v. Youngstown Hospital Association, 19

Ohio App. 2d 246, 250 N.E. 2d 892, 896 (1969) ;

Benell y. City of Virginia, 258 Minn. 559, 104 N.W.

9d 633, 636 (1960); Grodjesk v. Jersey City Medi-

cal Center, 135 N.J. Super. 398, 410 (Ch.Div. 1975).

Such a standard defers to the expertise of hospi-

tal authorities concerning the operations of the hos-

The standard for review of denial of a surgeon to surgi-

cal privileges at a hospital was set forth recently by the

New Jersey Supreme Court in Guerrero v. Burlington

County Mem. Hosp., 70 N.J. 344 (1976) as follows:

“ee 8° ©

pital, while at the same time affording full oppor-

tunity for judicial intervention when there is no ra-

tional basis for the decision being reviewed, or it

appears to be wnreasonable, arbitrary or caprict-

a reviewing court should confine its effort ous.” (70 N.J. at 356, emphasis added).

to determining whether the decision made by the

hospital is supported by substantial credible evi-

dence and is neither arbitrary nor capricious. When

a decision fulfills these requirements, a reviewing

court should refrain from substituting its own judg-

ment for that of the hospital authorities.

In respect to the problem of new doctors coming into

the area the New Jersey Supreme Court in Guerrero said:

“Nothing we have said should be in any way con-

strued as suggesting that hospitals may routinely

deny staff privileges to doctors moving into an area.

“It is well settled that this is the proper stand-

ard of review by which to measure the propriety

of determinations of administrative agencies. See,

e.g., Close v. Kordulek Brothers, 44 N.J. 589-99

(1965); Flanagan v. Department of Civil Service,

29 N.J. 1, 12 (1959); First Savings & Loan Asso-

ciation Vv. Howell, 87 N.J. Super. 318, 321-22 (App.

Any denial of such privileges, if motivated by a de-

sire to exclude newcomers in order to maintain the

status quo of the staff, woald not be judicially tol-

erated. Implicit in our opinion in Falcone v. Middle-

sex County Medical Society, 34 N.J. 582, 597 (1961)

is the belief that the power to exclude must be rea-

sonably and lawfully exercised in furtherance of the

74a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

interests of both the public and the medical pro-

fession. A denial predicated upon exclusionary pol-

icies fostering only the well-being of those staff

members who are already admitted would clearly be

in derogation of the spirit of Falcone. * * *” [70

N.J. at 358].

In Greisman v. Newcoml Hospital, 40 N.J. 389 ( 1963)

the New Jersey Supreme Court characterized the “disere-

tionary power” to admit new staff as a fiduciary power.

After referring to the trial court decision in Falcone v.

Middlesex County Medical Society, supra, the court said:

“On appeal, its judgment was sustained in an opin-

ion which, after pointing out that the Society had

virtually monopolistic power to preclude Dr. Faleone

from successfully continuing his practice and to re-

strict his patients in their freedom of choice of phy-

sicians, held that public policy dictated that this

power was not to remain unbridled but was to ‘be

viewed judicially as a fiduciary power to be exer-

cised in reasonable and lawful manner for the ad-

vancement of the interests of the medical profession

and the public generally.’ 34 N.J., at p. 597. Sup-

porting reference was made to various decisions

including Wilson v. Newspaper, etc., Union, 123 N.J.

Eq. 347, 351 (Ch. 1938), where Vice Chancellor Bige-

low had appropriately suggested that where a labor

union has a virtual monopoly it is under a fiduciarv

duty not to exercise its membership power in arbi-

trary fashion. * * *” [40 N.J. at 400].

In Wilson, the union had signed a closed shop agreement

with the Newark News, denied plaintiff admission, and then

75a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

sought his discharge on the ground that he was not a mem-

ber of the union. Plaintiff did not seek admission to the

union but an injunction against union interfering with his

job which was granted.

Art. I, par. 2, of the 1947 New Jersey Constitution pro-

vides:

“Persons in private employment shall have the

right to organize and bargain collectively * * *”

The Landrum-Griffin Act, 29 U.S.C. §401 encourages the

view that individuals who are affected by the collective bar-

gaining agreements negotiated by a union should have

rights of election in those unions.

These are the goals sought by the Plaintiffs. They are

consistent with the public policy of this State.

Against this criteria of exercise of fiduciary power, based

on credible evidence to show a rational and reasonable

reason for rejection of the transfers, this court concludes

that the record establishes beyond a fair preponderance of

the credible evidence that defendant Local 11 Executive

Committee did not base its decision on credible evidence or

rational reason.

In respect to the Consent Degree reason, the court at

most ean find that it is a mitigating factor in respect to

punitive damages in that there may have been some sub-

jective feeling that admissions of white transfers in light

of the little progress in attaining minority trainees and/or

apprentices might have created problems.

The court repeats the finding that there is no basis 0%

eredible evidence based on defendant Local 11’s testimony

that any quota existed.

76a

Letter Opinion of Dwycr, J.S.C., March 21, 1977

The court also finds in respect to punitive damages that

defendant Local 11 harbored no ill will or malice towards

the Plaintiffs but were seeking to protect jobs for the

members who elected them.

The court has already commented on the other reasons

given under the criteria.

The court finds that the reasons based on the original ap-

plication are not rationally related to the transfer where

there is no showing of disloyalty to the International, their

original Local, or Local 11, for periods ranging from 5 to

15 years. If it is appropriate to take an oath, Local 11

certainly should give one to all persons who come in.

The court repeats as an express finding that there is no

requirement existing for “general all around ironworker”,

either in the International Constitution, Local 11 By-Laws,

or the practices of the referral system at the hiring hall

run by Loeal 11.

Loeal 11 is required by the Consent Deerce to keep ree-

ords of referral and file reports. The records of Local 11

presumably show who worked, when they worked, and what

they did. They would also show who did not answer a eall

for work.

It may well be that a reasonable provision in a Local

By-Law for continued good standing is a requirement that

unless ill or otherwise excused, a failure to register for

work or respond to a eall on a certain number of occasions

within a time span is ground for expulsion. But in the

absence of Local 11 showing that any of the Plaintiffs

posed that problem it is not a reason for denying transfer.

Local 11 did not ground the refusal to honor Durante’s

transfer on a health problem. The problem is not job

77a

Letter Opinion of Dwyer, J.S.C., March 21, 1977

related, it is a pinched nerve. It has caused him to have to

leave work. Durante should submit a statement of his

treating physician that he is capable of working without

difficulty. If Local 11 questions it, it may request a phys-

ical examination and report by their own independent phy-

sician.

The court concludes that Plaintiffs have met their burden

of proof. The court concludes that Local 11 did not base

its rejection on an exercise of reasonable fiduciary discre-

tion. The court concludes that the rejections were on

grounds that were not relevant and may be illegal.

Under the cireumstances of this case the court directs

that International and Local 11 enroll the Plaintiffs subject

to the provisions of Article XXT of the International Con-

stitution in Loeal 11, subject in the case of Durante to

proof of medical qualification.

In respect to damages, the court concludes punitive dam-

ages should not be awarded.

In respect to the $2.50 per week charge, the court directs

an accounting from the date of the affirmance of the denial

of the transfer by Local 11 by the International.

Since counsel for Plaintiffs stated on the record that

there was no contention of joint action by International

and Local 11, the court will not find that they did act

jointly; hence, damages will be and hereby are determined

to be payable only by Local 11. Costs are awarded to the

Plaintiffs.

For purposes of attorneys fees each of the Plaintiffs was

seeking his own relief. The court therefore determines

that allowance of fees is not authorized under Rule 4:42-9.

Counsel for Plaintiffs shall submit an Order.

Very truly yours,

Artuur C. Dwyer

J.S.C.

78a

Judgment

(Filed—April 26, 1977)

Superior Court or New Jersey

Law Drvistlon—Essex County

Crvi, Action

La.

Atronso A. Esposito, et als,

Plaintiffs,

VS.

Loca 11, Ironworkers INTERNATIONAL ASSOCIATION,

et al,

Defendants.

This matter having been tried before the Court in the

presence of Bracken and Craig, attorneys for plaintiffs,

McFadden, Tenore and Surinski, (John J. Bracken ap-

pearing), Craner and Nelson, attorneys for the remaining

plaintiffs, (Ronald J. Nelson appearing), Nolan, Lynes

Bell and Moore, attorneys for defendant Local ai, (J ohn J

Mulvihill appearing), and Parsonnet, Parsonnet and Dug-

gan, attorneys for the defendant International, (Thomas

L. Parsonnet appearing), and the Court having heard

the testimony and arguments presented by all parties

and due cause appearing for the entering of this Judg-

ment

It is on this day of 1977

ApgvupGEp as follows: ’ » Orverep and

79a

Judgment

1. Defendant Local 11 shall enroll the plaintiffs as

members of Local 11 subject to the provisions of Article

XXI of the International constitution, subject in the case

of plaintiff Durante to proof of medical qualification ;

2. The defendants shall account to this Court coneern-

ing the collection of all charges of $2.50 per week from

the plaintiffs beginning from the date when each plaintiff

was informed by letter from defendant International in

1975 that his appeal from the denial of the transfer to

Local 11 was affirmed by the International, after which

this Court may award judgment to the plaintiffs in the

amount of such charge actually paid by each plaintiff,

such damages as may be determined being restricted as

to liability to Local 11.

3. Defendants are not liable for any counsel fees for

the plaintiffs’ attorneys in this cause.

4. Plaintiffs demands for damages from any source

except the $2.50 per week charge discussed above are

found to be improper and denied.

5. Costs are awarded to the plaintiffs. Jurisdiction

of the cause of retained only as to damages following

the accounting Ordered herein.

6. The application by defendant Local 11 for a stay

of judgment pending appeal is denied on condition that

plaintiffs shall not take any steps to seek enrollment into

Local 11 until such time as the request of Local 11 for

a stay of judgment shall be considered by the New

Jersey Superior Court, Appellate Division, Part B.

Artuur C, Dwyer, JSC

Consent is given as to the form of the within Judg-

ment.

Nolan, Lynes, Bell and Moore

Attorneys for Loca! 11

80a

Oral Decision of Ackerman, J.S.C., July 14, 1977

Superior Courr or New Jersey

Cuancery Division—Union Country

Docker No. C-2154-75

—

Wacrer J. Serarixn, CHares O’New., Epwarp Koran,

Martin Koras, Ronaup Cron, Straniey F. Szany, Jr.

and JosepH Pa.us,

Plaintiffs,

Vs,

Locan Union No. 480, Iwrernationan ASSOCIATION OF

Brivce, Strucrurat & OrnaMEenTAL Ironworkers, AF'L-

CIO, and Inrernarionan Association or Bripge, Srruc-

TURAL and OrnamMeNtaL Inonworkers, AFL-CIO.,

Defendants.

Thursday, July 14, 1977

Union County Courthouse

Klizabeth, New Jersey

Before:

Honoraste Harotp A. Ackerman, J.S.C.

Appearances:

Cranern & Netson, Esas.

By: Ronatp J. Nerson, Esa.

Attorneys for Plaintiffs

8la

Oral Decision of Ackerman, J.S.C., July 14, 1977

Nouan, Lynes, Bett & Moore, Esas.

By: Joun J. Mutvinit, Ksas.

Attorneys for Defendant Local 480

Parsonnet, Pausonnet & Duacan, Esas.

By: Grorce Ducaan, Ksq.

Attorneys for Defendant International Union

and

Harotp Stern, Esa.

(New York Bar)

B. Peter Srusarek, C.S.R.,

Official Court Reporter.

The Court: Plaintiffs are ei,,ht members of various

locals of defendant International Association of Bridge,

Structural, and Ornamental Ironworkers Union, herein-

after referred to as the International, who seek to trans-

fer into Local 480 of the International. The Local will be

referred to hereinafter as Local 480. The Local, I might

say, is also a defendant herein, Plaintiffs seek compensa-

tory and punitive damages as well as counsel fees.

Now, at the outset, I think it is very important to recog-

nize that one cannot fully appreciate the issues that pre-

sent themselves in this case without referring to and con-

sidering the antecedent history which, really, almost spans

two decades. This antecedent history consists of a series

of similar events which have invited the attention of vari-

ous courts on a State and Federal level from time to time.

Local 480 is one of five local unions which comprise the

Northern New Jersey District Council of the Ironworkers,

hereinafter referred to as the District Council. The five

locals are Local 11 situated in Bloomfield, Local 45 in

82a

Oral Decision of Ackerman, J.S.C., July 14, 1977

Jersey City, Local 373 in Perth Amboy, Local 483 in

Paterson, and Local 480 in Elizabeth, New Jersey.

During the past twenty years there have been a number

of suits instituted against the members of the District

Council by individuals who were members of other locals

seeking to transfer into one of the locals in the District

Council.

In Hughes vy. Local 11 of the International Association

of Bridge, Structural, and Ornamental Ironworkers Union

287 I'.2d, Page 810, certiorari denied 368 U.S., Page 399,

the plaintiff therein was a prospective tranferee who had

been a member of the Seranton Local of the International

who had moved to New Jersey and sought to transfer into

Local 11. He was a member in good standing of the In-

ternational. The International, not a member to that

action, informed him that transferring was a matter of

local jurisdiction. However, the International constitution

at that time provided that upon compliance with certain

requirements the local had to admit the prospective trans-

feree. The case was remanded by the Third Cireuit to as-

certain, inter alia, if plaintiff met all the requirements.

Subsequently, in Ferger y. Local 483, 238 F.Supp., Page

1016, affirmed 348 F.2d, Page 430, certiorari denied 384

U.S., Page 908, three other prospective transferees sought

to be admitted to Local 483. The District Court in that

case based jurisdiction on Section 101(a)(1) of the Labor-

Management Reporting and Disclosure Act, hereinafter

referred to as L.M.R.D.A., 29 U.S. Code, Section 411(a)

(1). The court stated that such act did not inelude the

right to transfer among its enumerated rights. The court

did, however, find that the plaintiffs were entitled to all

the rights that the L.M.R.D.A. provided, but did not order

their transfer.

83a

Oral Decision of Ackerman, J.S.C., July 14, 1977

The plaintiffs thereafter brought an action in the State

court. See Ferger vy. Local 483, 94 N.J. Super., Page 554,

affirmed 97 N.J. Super., Page 585. In that case they sought

an order of admission to the defendant local.

The International constitution, effective in 1960, under

which Ifughes had sought admission, did not vest any dis-

cretion in the local to turn down transferees who quali-

fied. However, in 1964 the constitution was changed and

provided that the membership of the local by majority

vote could accept or reject transfer applications.

Judge Matthews, then sitting in the Chancery Division

of the Superior Court, held that th

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