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CONNOR v. HIGHWAY TRUCK DRIVERS

July 25, 1974

HARRY J. CONNOR, on behalf of himself and all others similarly situated, Plaintiffs
v.
HIGHWAY TRUCK DRIVERS AND HELPERS, LOCAL 107, affiliated INTERNATIONAL BROTHERHOOD OF TEAMSTERS 107 Spring Garden Street Philadelphia, Pa. 19123 and LOUIS J. BOTTONE; AND KENNETH MOORE; AND JOSEPH CIMINO; AND ARTHUR BROWN; AND THOMAS O'MALLEY; AND WILLIAM PATTERSON; AND JOHN SMALLEY; AND TEAMSTERS JOINT COUNCIL NO. 53



The opinion of the court was delivered by: GREEN

 GREEN, J.

 This action arises under Title I of the Labor-Management Reporting And Disclosure Act (Act), 29 U.S.C.A. 401 et seq. Plaintiff seeks relief for himself and the class he seeks to represent for violation of the balloting procedures for dues increases under the Act. Presently before the Court is the defendants' motion to dismiss both the complaint of the plaintiff and the class action aspects of the complaint, and plaintiff's motion for class action certification. We deny the motion to dismiss and grant, in part, the motion to certify as a class action.

 The Individual Plaintiff

 The plaintiff, Harry J. Connor, is a member of Highway Truck Drivers and Helpers Local 107 (Local 107) and is suing Local 107, its officers and others. Since there is a motion to dismiss his claim under F.R. Civ. P. 12(b) (6), the allegations of plaintiff's complaint are taken as true for purposes of this motion.

 On or before Friday, January 19, 1973, the plaintiff received a postcard advising him that a regular monthly meeting of Local 107 would take place on Sunday, January 21, 1973. The postcard gave notice through the person of Louis J. Bottone on behalf of Local 107's Executive Board that consideration of a dues increase would be discussed at the meeting. The meeting was held as scheduled and at the meeting defendant Bottone presided over a vote of the members present as to whether membership dues would be increased. The vote was not taken by secret ballot, but rather, was a non-secret voice vote. By letter dated February 2, 1973, from defendant Bottone, plaintiff received notice that, at the regular monthly membership meeting held on January 21, 1973, the membership unanimously passed a dues increase of two (2) dollars per month, from eight (8) to ten (10) dollars per month, effective March 1, 1973.

 Plaintiff claims that the dues increase violates the Labor-Management Reporting and Disclosure Act and the Local 107's by-laws which both provide for reasonable notice of the fact that a dues increase is to be voted on and that the vote be done by secret ballot. *fn1"

 Plaintiff sought redress for a period in excess of four months through internal union remedies and has been denied relief. Immediately after receipt of the letter of February 2nd, plaintiff advised the individual defendants that the dues increase was unlawful and demanded that it not be put into effect; however, they refused to rescind the increase. Plaintiff lodged a complaint against the Executive Board of Local 107 and on August 16, 1973, a hearing was held before the Executive Board of the Teamsters Joint Council No. 53. The Board refused to sustain plaintiff's claim and did not order the increase rescinded.

 Plaintiff filed the instant complaint on December 12, 1973, requesting that the Court declare the dues increase illegal; that an injunction issue against the collection of dues in excess of eight (8) dollars per month; that defendants reimburse plaintiff and other members of the class for excess dues payments with interest; that attorneys fees be awarded; and that any other appropriate relief be granted. *fn2"

 The defendants have moved to dismiss plaintiff's complaint for failure to state a claim which would entitle the individual plaintiff to any of the equitable relief prayed for on the grounds that the plaintiff is guilty of such laches that equitable relief would be precluded; that plaintiff is estopped because he did not allege that he attended the meeting or that he would have voted against the increase; and finally that plaintiff did not allege that the vote would have had a different result had the vote been by secret ballot.

 Primarily, defendants rely upon laches. They note that this suit was filed approximately eleven (11) months after the vote itself was taken; and that, in comparison with Title IV of the Act where only the Secretary of Labor can institute suit, under Title I "the allegedly aggrieved union member has direct, virtually immediate recourse to a federal court to obtain an adjudication of his claim and an injunction if his complaint has merit." Calhoon v. Harvey, 379 U.S. 134, 141, 85 S. Ct. 292, 297, 13 L. Ed. 2d 190 (1964) (Stewart, J., concurring). That characterization, though quite accurate in the context of a comparison of the remedial provisions of Titles I and IV under the Act, is of rather limited usefulness in this context where we are concerned with the alacrity with which a union member has brought suit to enforce his Title I rights. Section 101(a) (4), 29 U.S.C.A. 411(a) (4) *fn3" specifically provides that a union member may be required to exhaust reasonable hearing procedures but with a four-month lapse of time maximum. In this case, the plaintiff has quite specifically alleged he brought his complaint to the attention of Local 107 immediately after notification of the dues increase and continued to seek relief internally for approximately four months and that he was obliged to do so. There is then less than a five month lapse of time between the exhaustion of internal union remedies and the institution of this suit.

 In support of their claim that under these circumstances, the plaintiff's claim should be barred by laches, defendants rely upon Ford v. Metropolitan District Council of Philadelphia, 323 F. Supp. 1136 (E.D. Pa. 1970) and Brooks v. Local No. 30, United Slate, Tile, etc., 187 F. Supp. 365 (E.D. Pa. 1960). Both of these cases involved attempts to enjoin a dues increase alleged to be violative of Title I of the LMRDA and Ford, in addition involved a request for damages. The alleged violations in both cases focused on the misleading nature of the ballot. In both cases, there had been adequate notice and a secret ballot. The courts in both cases held that there had been no violation of Title I but both courts, in dicta, also referred to laches. The actual lapse of time, correctly measured, in each case was, similar to the instant case, four to five months. This delay figured prominently, but not exclusively, in the statements by both courts that the cases could have been decided on the basis of laches. Notwithstanding the fact that both cases are dicta on this issue, they are also clearly materially distinguishable from the present action.

 Laches consists of two elements; first, inexcusable delay in the institution of suit; and second, prejudice resulting to the defendant as a result of such delay. Delay, in and of itself, may give rise to a presumption of laches such that a plaintiff may have to plead and prove the excusability of the delay and/or the lack of prejudice to the defendant. If the plaintiff had delayed for a time greater than the applicable statute of limitations, then plaintiff must prove his delay was excusable and not prejudicial to the defendant. Otherwise, the defendant must bear the burden of proof on laches. In this case, plaintiff instituted this action within one year of the alleged violation and spent four months thereof immediately after the violation exhausting internal union remedies. Defendant has not suggested what Pennsylvania statute of limitations should be applied for the limited purpose set out above nor how the exhaustion requirement under Title I should be related thereto. Defendants have not cited any Pennsylvania statute of limitations, and we do not know of any, that is so short that plaintiff's pleadings must address the laches issue. Gruca v. United States Steel Corporation, 495 F.2d 1252 (3d Cir., 1974); Burke v. Gateway Clipper, Inc., 441 F.2d 946, 949-50 (3d Cir. 1971); Carmalt v. General Motors Acceptance Corp., 302 F.2d 589, 591 (3d Cir. 1962); Kane v. Union of Soviet Socialist Republics, 189 F.2d 303, 305 (3d Cir. 1951) (en banc), cert. den. 342 U.S. 903, 72 S. Ct. 292, 96 L. Ed. 676 (1952).

 Essentially, we deny defendants' motion based upon laches at this time because we do not believe that it is appropriate in this case to sustain the defense of laches in the present procedural posture. Since defendants have brought this motion under F.R. Civ. P. 12(b) (6) we still do not even have an answer to the complaint. Although it may be possible to make a laches determination on the basis of a 12(b) (6) motion in ...


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