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DOBSON v. CHICAGO & NORTHEAST ILLINOIS DIST.

June 28, 1989

GEORGE DOBSON, et al., Plaintiffs,
v.
CHICAGO AND NORTHEAST ILLINOIS DISTRICT, UNITED BROTHERHOOD OF CARPENTERS, et al., Defendants



The opinion of the court was delivered by: MORAN

 JAMES B. MORAN, UNITED STATES DISTRICT JUDGE

 Plaintiffs brought suit for injunctive and declaratory relief pursuant to Section 102 of the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 412, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. We rule herein on plaintiffs' motion to amend their complaint and defendants' motion for summary judgment. For the following reasons, we grant plaintiffs' motion to amend, in part, and deny defendants' summary judgment motion.

 FACTS/PROCEDURAL HISTORY

 This dispute arises out of the procedures surrounding a March 5, 1988 vote by members of defendant Chicago and Northeast Illinois District, United Brotherhood of Carpenters ("District Council"). At issue was a "dues checkoff" proposal which in effect added an additional fee of 1% of earnings to the amount already deducted from the salaries of employees for basic dues. *fn1"

 Our memorandum and order of February 9, 1989 denied plaintiffs' motion for preliminary injunction. We therein evaluated three legal issues: first, whether the notice provided to the members was reasonable within the meaning of the LMRDA; second, whether voting by retirees denied the plaintiffs' rights to an equal vote; and third, whether the timing of the vote denied those members who chose to work an equal and reasonable opportunity to vote. Pursuant to Roland Machinery Co. v. Dresser Industries, 749 F.2d 380 (7th Cir. 1984), and in light of the minimal degree to which the alleged damages were irreversible, *fn2" we found an insufficient probability of success on the merits to justify the proposed injunction.

 Initially we revisit the merits to evaluate defendants' motion for summary judgment. After concluding that material issues of fact remain in dispute, we review plaintiffs' motion to amend.

 DISCUSSION

 I. Summary Judgment

 Plaintiffs contend material issues of fact remain respecting both the adequacy of notice and whether voting by retirees denied the plaintiffs' rights to an equal vote. Before reentering the notice dispute, we quickly dispatch plaintiffs' second allegation.

 Judge Mikva's decision in American Postal Workers Local v. American Postal Workers, 214 U.S. App. D.C. 278, 665 F.2d 1096 (D.C. Cir. 1981), is not to the contrary. That opinion sets out the scope of permissible union exclusion, without any suggestion that LMRDA might require exclusion. Id. at 1103 ("These sources [case law and the legislative history] indicate that a union may limit voting to active members, or to those in good standing, and may exclude those who have not belonged to the union for the requisite period of time") (emphasis added); see also id. ("In addition, section 101(a)(1) permits a union to limit participation in a specific vote to those whose interests are affected") (emphasis added). The system criticized in American Postal Workers also did far more than merely "dilute" the votes of certain members. The court therein held that the American Postal Workers Union violated § 101(a)(1) of the LMRDA by failing to submit the proposed contract to Local 6885 members for ratification. We fail to see how plaintiffs gain support from distinctions held to be unreasonable, where they operated "to prevent a group of members from voting or even speaking on matters that vitally affect them." Id. at 1104, quoting Alvey v. General Electric Co., 622 F.2d 1279, 1287 (7th Cir. 1980). Interpreting the LMRDA, and § 101(a)(3) in particular, to permit union discretion, is perfectly consistent with Burroughs v. Operating Engineers, 686 F.2d 723, 727 (9th Cir. 1982), and renders the dispute as to the number of non-paying retirees who voted on the "dues checkoff" legally irrelevant.

 But the adequacy of notice issue is quite another matter. We skip the development of that requirement and proceed instead with the relevant legal standard. *fn3" In Gates v. Dalton, 67 F.R.D. 621 (E.D.N.Y. 1975), the Eastern District of New York articulated the seminal requirement:

 
The statute does not require individual written notice, nor is such an express requirement to be readily inferred from ...

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