APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Civil No. 75-564.
Gibbons, Forman, and Rosenn, Circuit Judges. Gibbons, Circuit Judge, concurring and dissenting.
Congress determined thirty years ago when it enacted the Taft-Hartley Act to interdict conduct that would deprive employees engaged in interstate commerce from fair representation in collective bargaining. Motivated by the same social objectives, it also provided for safeguards to maintain the integrity of employee welfare and pension funds. This appeal raises an important question whether the Act's objective of equal representation by employer and employee trustees on the board of welfare and pension funds is thwarted when the employer trustees represent two rival associations.
After many years of collective bargaining between them, the Associated Contractors of Essex County (Associated) and several Locals of the Laborers International Union (hereinafter referred to collectively as the "Union") pursuant to a collective bargaining agreement, entered into two agreements and declarations of trust in 1964 creating the Newark Laborers Welfare Fund and the Newark Laborers Pension Fund.*fn1 Under the terms of the trust agreements, Associated and the Union were each to designate three trustees and each party retained the right to recall and replace one or more of its designated trustees at any time.
Prior to February 1973, the Executive Secretary of Associated was Paul Brienza. Brienza also served as one of the designated Associated trustees on the Welfare and Pension Funds. Associated removed him from both positions whereupon Brienza became instrumental in organizing a rival trade association known as the Building Trades Employers Association (BTEA). On March 7, 1975, BTEA executed its first collective bargaining agreement with the Union and agreed to make contributions to the aforesaid Welfare and Pension Funds. Three days later, March 10, 1975, Brienza, now managing director of BTEA, made a demand of Mandaglio, a union trustee and chairman of the Funds, that BTEA be given representation equal to Associated in view of BTEA's promised contribution to the Funds.
A meeting of the Trustees of the Funds was called for March 17 but Associated alleges that no notice of BTEA's demand was furnished to it or to Higgins and Ingrassia, two of Associated's three trustees. Associated alleges that its third trustee, Frank DiGirolamo, whose company, DiGirolamo Construction Company, had joined BTEA, knew of the BTEA demand but elected not to share his knowledge with his fellow trustees. At the March 17 meeting, motions were made to amend the trust agreements to make BTEA a "party" and to expand the board of trustees to eight members, two appointed by Associated, two by the BTEA, and four by the Union. Each motion carried by a vote of 4 to 2, DiGirolamo voting in each case with the union trustees.
Prior to the next meeting of the Trustees on March 24, DiGirolamo was replaced as an Associated trustee by Wall. At the meeting, however, DiGirolamo showed up together with Brienza and both were seated as employer trustees representing BTEA. The two amendments to the trust agreements as formally drafted by counsel were put to a vote at a subsequent meeting on April 3 and adopted by a vote of 6 to 2; Brienza and DiGirolamo voted in favor of the amendments together with the union trustees. At the April 3 meeting, the trust agreements were further amended by the same 6 to 2 vote to provide that six trustees would constitute a quorum with the further proviso that at least two of the six were employer trustees and two union trustees.
Shortly thereafter, Associated together with Higgins, Wall, and Ingrassia sought declaratory and injunctive relief in the United States District Court for the District of New Jersey, naming as defendants the Union, Brienza and DiGirolamo, the two trust funds, the three union trustees, the additional alleged union trustee, and the administrator of the funds. Jurisdiction was alleged under sections 301 and 302 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. §§ 185, 186 (1970) and 28 U.S.C. §§ 2201-02 (1970).
The plaintiffs prayed that the court declare*fn2 the amendments to the trust agreements and the actions taken pursuant thereto illegal and void under the terms of the trust agreements themselves as well as under the equal representation requirement of section 302(c)(5)(B) of the Labor Management Relations Act (LMRA), 29 U.S.C. § 186(c)(5)(B).*fn3
Following cross-motions for partial summary judgment, the district court held in a letter-opinion that the challenged amendments did not violate the terms of the trust agreement and that they were validly enacted. Finding also that the plaintiffs "had failed to raise any genuine issue of material fact" necessitating trial of their claim that the challenged amendments violated the equal ...