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BROOMER v. SCHULTZ

March 30, 1965

Jeston BROOMER and Reverdy Garrett, plaintiffs, on behalf of a class comprised of members of the General Teamsters, Chauffeurs, Helpers and Yardmen of Local No. 470,
v.
Peter P. SCHULTZ, President annd Business Manager of the General Teamsters, Chauffeurs, Helpers and Yardmen of Local No. 470, et al.



The opinion of the court was delivered by: LORD, III

Plaintiffs, Jeston Broomer and Reverdy Garrett, bring this action on behalf of themselves and 'others similarly situated who have been meeting and assembling with plaintiffs for the purpose of correcting continuing abuses * * *.' *fn1"

Broomer and Garrett are paid-up members in good standing of the General Teamsters, Chauffeurs, Helpers and Yardmen of Local No. 470, an unincorporated labor organization affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The defendants are officers and business agents of the local Union (hereinafter called 'Local').

 Jurisdiction is assertedly based upon 29 U.S.C.A. § 412. *fn2" The plaintiffs seek injunctive and other relief for various acts of the defendants.

 The complaint raises numerous issues. Each type of alleged abuse will be dealt with separately in this opinion which will be deemed to be the court's findings of fact and conclusions of law.

 Count I of the complaint alleges that the defendants, comprising the executive committee of the Local, failed to submit to the members for adoption a local constitution and bylaws, as required by 29 U.S.C.A. § 431. Section 412 of Title 29 gives the district courts jurisdiction to remedy violations of subchapter II. However, Section 431, relating to the adoption of constitutions and bylaws, is not contained in subchapter II, but in subchapter III, and Section 440 of Title 29 provides for the enforcement of subchapter III by the Secretary of Labor. Cf. Calhoon v. Harvey, 379 U.S. 134, 85 S. Ct. 292, 13 L. Ed. 2d 190 (1964). There is no provision for enforcement in the courts by private parties of subchapter III, and hence we are without jurisdiction over this complaint. Cf. Forline v. Helpers Local No. 42, 211 F.Supp. 315 (E.D.Pa., 1962).

 Scattered throughout the complaint are various allegations springing out of plaintiffs' desire to have shop stewards elected by secret ballot. The following are the facts and the applicable law:

 At a general membership meeting on March 15, 1959, a motion to elect stewards was defeated and a motion that the president appoint stewards was carried by a majority.

 On January 19, 1963, plaintiff Garrett was discussing the question of the election of shop stewards at a meeting when defendant Schultz ruled him out of order. He made no motion which Schultz refused to entertain, nor is there any evidence that he intended to submit any such motion.

 In any event, on November 17, 1963, a motion was again made and seconded that shop stewards be elected by secret ballot. This motion was voted upon and again was defeated. Finally, in December 1963 Schultz refused to submit another identical motion by Garrett. There is no evidence that any further action has been sought by plaintiffs since December 1963.

 In my opinion, this factual recitation makes it clear that plaintiffs' case lacks an essential ingredient for the issuance of a preliminary injunction. Such an order will only issue on a clear showing of imminent and irreparable harm. Almeida Bus Lines v. Curran, 209 F.2d 680 (C.A.1, 1954). The proof shows that twice identical motions were submitted and twice they were defeated. There is no showing that Garrett is being or will be in any way prevented from speaking again to the subject. There is no showing of any substantial probability that plaintiffs' rights under Section 411 will be violated in the future and hence the extraordinary remedy of preliminary injunction cannot be invoked.

 The fact that the motion was not accepted in December 1963 does not alter this conclusion. The motion had just been defeated for the second time only the month before. The refusal to consider it again so shortly after its second defeat was not an interference with a member's right of free speech, but was a reasonable parliamentary rule.

 I find that the Local has held a vote by which it was decided that shop stewards should be appointed by the president of the Local. An objection to this means of selection cannot be made to the courts under 29 U.S.C.A. § 411. The right to election of union officers *fn3" is governed by 29 U.S.C.A. § 481 and the enforcement of this provision is governed by 29 U.S.C.A. § 482, which provides for the filing of a complaint with the Secretary of Labor. See Calhoon v. Harvey, 379 U.S. 134, 85 S. Ct. 292, 13 L. Ed. 2d 190 (1964). Cf. Forline v. Helpers Local No. 42, 211 F.Supp. 315 (E.D.Pa., 1962).

 Paragraph 20 of the complaint alleges that on September 17, 1963, defendant Schultz permitted and encouraged certain union members to threaten plaintiff Broomer with physical violence because he presented two motions. The evidence shows, and I find as a fact, that an unnamed member did insult and at least attempted to assault Broomer on that date. However, the evidence utterly fails to show any connection between Schultz and the unidentified member. On the contrary, Schultz actually protected Broomer's rights. The unnamed union member was restrained and removed from the union hall and at the request of Schultz, Broomer continued with his discussion. I therefore find that Schultz ...


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