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KELSEY v. PHILADELPHIA LOCAL 8

December 23, 1968

Joseph P. KELSEY
v.
PHILADELPHIA LOCAL 8, INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES et al.



The opinion of the court was delivered by: HIGGINBOTHAM

 This is a suit arising under the so-called "Union Member Bill of Rights" provision of the Labor-Management Reporting and Disclosure Act. Although it was originally before me on a request for a preliminary injunction, three hearings have been held and extensive briefs, memoranda and exhibits submitted, and both sides have agreed to have me treat the matter as one now for permanent injunction and final judgment. This opinion will serve as and in lieu of Findings of Fact and Conclusions of Law pursuant to Rule 52 F.R.Civ.Proc. For the reasons stated below, I find that plaintiff is entitled to substantially all of the relief he seeks.

 I.

 Plaintiff, Joseph P. Kelsey, is a member of Local 8, International Alliance of Theatrical Stage Employees, defendant herein. In January, 1966, plaintiff was elected to a two year term as Vice President of the Local.

 Defendant, Local 8, is a labor organization within the meaning of the Labor-Management Reporting and Disclosure Act, *fn1" with its principal office and place of business in Philadelphia, Pennsylvania. Its members are engaged in employment as Stagehands in theatres and other places of amusement and entertainment in Philadelphia.

 For the purpose of referring its members for this employment, Local 8 runs a hiring hall, to which calls come from the operators of theatres and other places of amusement requesting the referral of men to work as stagehands. The secretary-treasurer has the primary responsibility for making such referrals. No written records are regularly kept of requests for men nor of what men are available and qualified for the various kinds of work at any given time. Availability, qualification and seniority, in that order, are supposed to be the factors determining who gets referred. However, because of the absence of records, responsibility for the decision of who gets assigned to a particular job is left solely to the knowledge and discretion of the secretary-treasurer.

 The stagehand work is divided into three departments: carpentry, electricity and property. Each of these has a head of department and such assistants or "extra" men as needed for the particular job. The head of department receives a higher rate of pay and has supervisory responsibility for the work done by the extra men. Employment at most of the theatres and at Convention Hall is generally temporary, running for a period of from one performance to 12 to 14 weeks at a time.

 Although the job as head of carpentry department at Convention Hall was, and is, an open job, i.e. one not permanently assigned to any particular person, from the beginning of February, 1966, through November, 1966, plaintiff was assigned to virtually every job as head of carpentry department there. This amounted to 36 assignments for which plaintiff earned approximately $2,701.50. Mr. Michael Sweeney was Secretary-Treasurer during this period. He was replaced by Raimund Sinker in November, 1966.

 On November 19, 1966, Plaintiff, while employed as an extra man in the carpentry department at the Philadelphia Arena, was informed by union member Joseph Capparelli, then head of the carpentry department, that he was not going to work during the rehearsals. Thereupon, plaintiff got into an argument with President Wynn concerning failure to assign him to work.

 On November 26, 1966, plaintiff went to the union office to discuss this failure to assign him with secretary-treasurer Sinker. The conversation began in normal tones of voice on both sides, and, at one point, Sinker stated that he might have made a mistake because of his inexperience at his job. The discussion, however, soon escalated into an argument and became quite boisterous -- to the extent that Wynn came out from a back room to see what was taking place. It is the content of the verbal exchange between Kelsey and Sinker that formed the basis of the charges against Kelsey.

 Sinker claims that Kelsey "threatened" him saying, "I will take you downstairs and fix you up. I will fight you."

 Kelsey claims that Sinker came around from behind his desk, and, thinking that this was a threatening move on Sinker's part, he asked Sinker if he wished to go outside, presumably to fight, and thus intended no aggressive act himself.

 As a result of this incident, on November 28, 1966, Sinker filed charges against Kelsey for "conduct un-becoming an officer," in that Kelsey allegedly threatened him with bodily harm trying to intimidate him. *fn2"

 On December 3, 1966, Kelsey was informed that he was to appear before the union Executive Board on December 17 to answer these charges. *fn3" The notice also informed him that he was suspended from his official duties as vice president until after the trial and that he would "hold no head of department or stewardship" "or any other position of responsibility" during that period. At the trial, the executive board found Kelsey guilty of both *fn4" charges. This decision was approved by the membership on January 4, 1967.

 Kelsey appealed to the International, and his appeal was sustained on several grounds, one of which was:

 
The substance of the charges do not constitute grounds for the impeachment of officers within the meaning of Article VI, Section 1 of the Constitution. The charges in question come within the purview of Article VII, Section 1, providing for discipline of members. Under the provisions of this Article (Section 14), the accused has the right to demand a trial before the membership. *fn5"

 On March 23, 1967, the charges were re-filed, and on April 22, 1967, he was tried before the union membership and found guilty. He was sentenced pursuant to Article VII Section 23 *fn6" of the Constitution, and Article XII Section 13 of the By-Laws *fn7" to:

 
1. Be fined fifty dollars;
 
2. Stand disfranchised from holding office or taking part in meetings for a period of one year from the date of the original charges, i.e., "the original penalty date"; *fn8"
 
3. Be required to make an apology to the general membership at a regular meeting;
 
4. And be required to pay the cost of the transcript. *fn9"

 Plaintiff appealed this conviction to the International, and on May 8, 1967 filed suit here under Section 101 and 102 of the Labor-Management Reporting and Disclosure Act, *fn10" having waited the requisite four months from the date of the original imposition of the penalty. *fn11" While the matter was under consideration here, the International Union decided Kelsey's appeal, finding in his favor on the charges brought by President Wynn (hereinbefore the "Wynn" charges) and finding against him on the charges brought by Secretary-Treasurer Sinker (hereafter the "Sinker" ...


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