author: SAROKIN, District Judge.

text:
    Dominic PAPIANNI, James P. Kearns, Jr., Peter DiGavero, Edward Pshybshefski and Philip DiGavero, Plaintiffs, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 11, Defendants.
    Civ. A. No. 84-1343.
    United States District Court, D. New Jersey.
    Dec. 10, 1985.
    As Amended Dec. 19, 1985.

      John A. Craner, Craner & Nelson, Mountainside, N.J., for plaintiffs.
    Albert G. Kroll, Zazzali, Zazzali & Kroll, Newark, N.J., for defendants.
   OPINION

SAROKIN, District Judge.

INTRODUCTION

The circumstances of this case do not reflect favorably upon the conduct of the union here involved. It has systematically denied rights and opportunities to its own members apparently to protect a favored group within its ranks. Furthermore, it has consistently and blithely ignored prior court rulings and seeks here to reargue many which have already been determined against it. It is difficult for the court and certainly for the plaintiffs to understand why a union would treat its own members in such a cavalier fashion. Rather than representing the interests of its members, this union appears to be acting against them and has thus denied qualified transfer applicants the opportunity to receive the rights and benefits of union membership to which they are clearly entitled.

This action is but one chapter in a series of lawsuits stretching, over twenty years against various local affiliates of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, all generated by the locals’ failure to accord transfer applicants the same rights and employment opportunities accorded to members of the local. The issue presented in this case is whether the deference due to local unions in the handling of their internal affairs prevents the court from granting relief to transfer applicants who have been forced to occupy a second class status within the local union because of practices by local officials which have no basis in the union’s constitution. The court concludes that the principle of deference does not extend to that extreme.

FACTS

The facts in the record before the court, which have not been disputed in the one affidavit submitted by the defendant, are these. The five plaintiffs are all members of a local affiliate of the International Association. None of them has ever worked out of the hiring hall of the local to which he belongs, however. Rather, during the entire period of each plaintiff’s association with the union, each has, with only minor exceptions, worked exclusively out of the hiring hall of the defendant, Local 11.

Pursuant to Article XXI of the International’s Constitution, each plaintiff has applied to transfer into Local 11. The constitution provides that when a member wishing to transfer from one local to another properly obtains and presents a “clearance card” to the local into which he wishes to transfer, “the matter shall be referred to the Executive Committee of the local union which shall accept or reject such clearance card within the discretion of the Executive Committee”. Rather than either accepting outright or rejecting the plaintiffs’ transfer applications in this case, however, the Executive Committee of Local 11 informed each plaintiff that his application had been approved, but that he would be placed on an “approved transfer list”. Admittance from the list would be accomplished “in the date order [that] ... transfer applications were filed, based however on the individual classification’s [sic] in the trade in accordance with the needs of the industry in the Local Union’s jurisdiction”. Complaint, Exhibits A, C, & E (similar language in Exhibits D & E). Since the inception of the litigation, two of the plaintiffs, Peter and Philip DiGavero, have been admitted into the union, after remaining on the waiting list for five years. The remaining plaintiffs, Dominic Papainni, James Kearns and Edward Pshybyshefski, have still to be admitted after waiting five years, in the case of Papainni, and two years in the cases of Kearns and Pshybyshefski.

As approved transfers on the waiting list, the plaintiffs are not granted the same rights or employment opportunities as those afforded to local members. Among the rights denied them are: (1) the right to nominate candidates for election to Union office; (2) the right to vote in elections or referendums held by the Local; (3) the right to attend membership meetings; and (4) the right to participate in deliberations or votes upon business conducted at the meetings, including contract discussions and votes on the contract, even though the plaintiffs have had to work under the conditions imposed in the contract. Approved transfers are required to pay a non-membership fee in addition to a membership fee, which they presumably pay to the locals in which they are members. They do not accrue seniority credits in the local, which are used to determine, e.g., the order of layoffs on jobs. They work an average of one quarter of the number of weeks per year that local members do, with correspondingly lower gross earnings. Plaintiffs allege in addition that, as approved transfers, they have been treated discriminatorily with regard to job referrals: they have not been sent out on jobs when requested by name, as is the practice with local members; they have had to wait their turn for a new referral after each job while local members have been skipped ahead; they are referred to short term jobs disproportionately often. They allege that, eompared to local members, they are rarely appointed to be the foreman on a job, which entails a higher rate of pay. Because the union operates an exclusive hiring hall, plaintiffs essentially have no choice but to suffer this discrimination if they want to work in their trade in Local ll's jurisdiction. Defendant has not submitted any certification or affidavit to refute these claims.

On February 29, 1984, plaintiffs filed their complaint in the Superior Court of New Jersey, Chancery Division, Union County. Each plaintiff alleged that he was “entitled to be transferred into Local 11 immediately in accordance with the constitution and ritual of [the] International.” Plaintiffs further alleged that “[t]he actions of Local 11 in refusing to properly process the transfer of [each plaintiff] ... is a continuation of the prior discriminatory policy of Local 11 which is to exclude, as members, those who are not in some way ‘related’ to existing members and to' exclude those who have not been accepted through the existing apprentice program, that is, to exclude transfers.” The policy was alleged to be “unreasonable, unfair and an abuse of discretion, as well as deliberately contrary to law.”

Defendant duly removed the action to this court. In an opinion filed in July, 1984, this court found that it had original jurisdiction over the matter pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), because the action was one seeking relief for the violation of a labor contract, the union’s constitution. The court accordingly denied a motion by plaintiffs to remand.

Thereafter, defendant filed a motion for summary judgment on the ground that plaintiffs had failed to exhaust their internal union remedies. By consent of the parties, the action was stayed pending review of the matter by the International’s General Executive Board. The Board met on November 15,1984, to consider the matter, and by letter dated November 21, 1984, notified each plaintiff that it had

unanimously decided to deny the appeals on procedural grounds in view of all of the circumstances surrounding the appeals, including the fact that appellants did not file timely and expeditious appeals, and in view of the fact that a decision of the General Executive Board would not terminate the litigation. The G.E.B. further decided that this decision shall not be construed as an interpretation of the Constitution with respect to the merits of the transfer policies of any local union.

Defendant’s Brief, Exhibit C. In view of the Board’s refusal to grant the plaintiffs relief, the matter was reopened.

Subsequently, the court considered a motion by plaintiffs to amend their complaint to allege causes of action under Section 101 of the Labor Management Reporting & Disclosure Act, (LMDRA) 29 U.S.C. § 411. The court granted the motion to amend except as to claims made that the local’s hiring hall practices were discriminatory because those claims were admittedly pending in another forum as a result of a complaint filed with the National Labor Relations Board (NLRB). In its Opinion, filed February 14, 1985, granting plaintiff’s motion to amend, the court found that plaintiffs’ Section 101 claims were not untimely under the six month statute of limitations held applicable to such claims by the Third Circuit in Local 1397 v. United Steelworkers of America, 748 F.2d 180 (3d Cir.1984). The court found that the Section 101 violations alleged in the proposed amendments were continuing violations and that the notifications to plaintiffs that their applications for transfer had been approved, promising them membership, albeit delayed, was not an open denial of rights triggering the running of the six month limitation period.

Before the court at this time are the cross motions of the parties for summary judgment. On the merits, plaintiffs argue that the interpretation accorded to the association’s constitution by the defendant in its “approved transfer list” procedure is patently unreasonable and therefore a violation of the constitution; that the quota system under which transfers are made constitutes an abuse of discretion by the local officials; and that the discriminatory treatment accorded to approved transfers on the waiting list violates the union member’s “Bill of Rights” in Section 101. Defendant contends that the local’s waiting list procedure is not a patently unreasonable interpretation of the constitution. It introduces the argument, which was not alleged as a defense in its answer either to the original complaint or to the amended complaint, that the waiting list procedure was necessary in order to comply with a 1972 Consent Decree arising out of a Title VII race discrimination suit against the local, styled U.S. v. Plumbers Local 24, el al., U.S. District Court, District of New Jersey, No. 444-71. It claims that the Consent Decree bound it to achieve a percentage goal of 20 percent minority members, which goal would be defeated if the local “diluted” its membership with whites like the plaintiffs. Defendant admits, however, that “[t]he criteria for admission of the transferees included not only the Consent Decree but also the amount and nature of the work in the union’s geographic area, the skills of the current members, and the rate of attrition of current members.” Defendant’s Brief at 13. Ignoring the court’s February 14 ruling that the plaintiffs’ “Bill of Rights” claims under the LMRDA were not barred by the applicable statute of limitations except in a footnote, Defendant’s Brief at 25, defendant renews its argument that plaintiff’s LMRDA claims are time-barred, as well as contending that their original contractual claims are time-barred.

As to plaintiffs’ first cause of action, the court finds that the defendant’s waiting list procedure is an obvious subterfuge to avoid the effect of a 1975 New Jersey Supreme Court decision on the practice of New Jersey Ironworker locals to exclude transfers, Moore v. Local 483, 66 N.J. 527, 334 A.2d 1 (1975); that the defendant’s reliance on the 1972 Consent Decree to justify the practice is not only misplaced, but greatly disturbing in light of a 1978 ruling by this court definitively rejecting defendant’s interpretation of the Consent Decree; that the Local’s other justification for exclusion of transfers based on the availability of work in the area is wholly improper and must be premised on a practice of discriminating against non-members in job referrals which constitutes a violation of the National Labor Relations Act; and therefore that the local’s waiting list procedure is a patently unreasonable interpretation of the constitution. As to plaintiffs’ second cause of action, the court finds that the approved transfer procedure has in effect created a sub-class of union members qualified for membership in the local in order to accomplish the goal of unreasonably depriving admittedly qualified applicants for membership of the rights guaranteed in Section 101; that plaintiffs’ are in fact “members” of the local by virtue of their approval for transfer; and that defendant has violated their rights to participate in union governance in violation of Section 101. Finally, the court declines to reconsider its February 14 opinion that plaintiffs’ LMRDA claims are timely, and finds that plaintiffs’ contractual claims are timely under New Jersey’s six year statute of limitations for contract claims as well.

DISCUSSION

As noted above, plaintiffs allege two causes of action. First, they allege that the waiting list procedure violates the International’s constitution. Second, they allege that the failure to accord them rights to participate in the union’s decision making violated the union member’s “Bill of Rights” in Section 101. The parties agree as to the first cause of action that the standard for determining whether the local’s actions violate the union constitution is whether they manifest a “patently unreasonable” interpretation of the constitution. See Plumbers Local 334 v. Plumbers Intern’l Union, 669 F.2d 129, 131 (3d Cir.1982). As to the second cause of action, the issue is whether or not the local is obliged to accord plaintiffs the rights they seek: that is, whether or not plaintiffs are “members” of the local within the meaning of Section 101.

I. Background

It is impossible to understand the import and effect of the local’s waiting list procedure without placing that procedure in historical context. Apparently since at least 1961, New Jersey Ironworkers locals, including Local 11, have engaged in a practice of unreasonably excluding transfer applicants from membership. See Hughes v. Local 11, 287 F.2d 810 (3d Cir.), cert. denied, 368 U.S. 29, 82 S.Ct. 51, 7 L.Ed.2d 32 (1961) (union member seeking to transfer into Local 11 had to be accorded rights guaranteed under Section 101 because he had fulfilled all of the requirements of membership, though union refused to perform ministerial acts necessary to list plaintiff as member.) For reasons that are not entirely clear in the record, it seems that local workers who aspire to become members of the union are forced to join the union as members of locals in other areas, including other states, although the applicants never travel to or work in the jurisdictions of these other locals. The applicant then obtains a clearance card and attempts to “transfer in” to the New Jersey local, though he has never worked anywhere but in the jurisdiction of that local. There is also apparently widespread illegal discrimination against the transfer members in favor of the local members in the union’s exclusive hiring halls. See N.L.R.B. v. Local 483 and Local 11, 672 F.2d 1159, 1163 (3d Cir.1982) (“[i]n several earlier cases involving other northern New Jersey ironworker locals, all of which are parties to the same contract and consent decree and operate hiring halls identical to those at issue here, the Board found widespread discrimination by the locals in favor of their own members, highlighted by grossly disproportionate referral statistics and what the Board found to be an ‘inescapable inference of deceit in maintaining the referral register’ ”). Plaintiffs are pursuing claims against the local before the NLRB and the courts to remedy this discrimination, although the current status of those claims is not clear in the record before the court. Perpetuation of the practice of excluding transfers from membership has been accomplished by amendments to the union’s constitution and by local unions’ inventiveness in creating ever new procedures to exclude transfers.

As noted in the New Jersey Supreme Court’s 1975 decision regarding the then-existent practice of flat rejection of all transfer applicants in Local ll’s sister local, Local 483, Moore v. Local 483, 66 N.J. 527, 531, 334 A.2d 1 (1975), the International’s constitution has been revised twice since 1960:

The 1960 constitution mandated acceptance by a local union of all transfer requests. The 1964 constitution provided that a local union by a majority vote could accept or reject transfer applications. The 1968 constitution, which governs plaintiffs’ requests for transfer, eliminated the necessity of a vote by the entire membership of the local union and delegated the acceptance or rejection of transfers to its executive committee.

The constitutional language quoted to the court by both parties is identical to that quoted in Moore, and apparently has not been revised since 1968.

In 1961, in Hughes, supra, the Third Circuit considered Local ll’s practice of simply failing to admit transfer applicants, under a constitution that mandated automatic admittance. The court found that the Local’s differential treatment of transfers violated Section 101, even though the plaintiffs were not technically members of the union, because they had fulfilled all of the requirements for membership. The court reasoned that “the Act’s protection is extended to those who are everything that members are, to those who are in substance members, despite the fact that the officials of the particular labor organization have not performed the ministerial acts precedent to formal admission and recognition.” Hughes, 287 F.2d at 815.

Quite possibly in response to Hughes and a subsequent decision following Hughes, Ferger v. Local 483, 238 F.Supp. 1016 (D.N.J.1964), aff'd 342 F.2d 430 (3d Cir.1965), the International amended its constitution to allow the locals to accept or reject transfer applications, without any guidelines for the exercise of the local’s discretion in making the determination. Thus, in Philipchuk v. Ironworkers, 87 LRRM 3169 (D.N.J.1972), aff'd 475 F.2d 1396 (3d Cir.1973), this court found that the union’s practice of denying rights to transfer applicants who had been rejected was permissible under Section 101 because, where membership was not automatic upon an application to transfer according to the constitution, the court could not interfere with the union’s autonomy and discretion in determining its membership by deeming the rejected transfers to be members under Section 101.

Thereafter, in Moore, however, the New Jersey Supreme Court examined the union’s procedure for rejection and found it wanting. The local had rejected virtually all transfer applications since passage of the amendment to the constitution allowing rejections, without stating any reason for the rejections. The court found that the executive committee’s discretion to reject transfer applications was not “unlimited”. Moore, 66 N.J. at 536, 334 A.2d 1. The executive board had to, under any reasonable interpretation of the constitution, state reasons for its rulings on the plaintiff’s applications, particularly in light of the fact that “membership in the local union is a matter which critically affects a person’s ability to earn a living.” Id. at 537, 334 A.2d 1. The court noted that “[wjhile courts have traditionally refrained from interfering with the internal affairs of a union, they have not hesitated to intervene when provisions of a union constitution are repugnant to public policy and exceed limitations on the equal opportunity to work guaranteed by the state and federal constitutions ... and in requiring the acceptance of a technically competent applicant as a member where there is a restricted admissions policy and a closed shop agreement with employers in the area.” Id. at 534, 334 A.2d 1. (citations omitted). The court remanded the case to the district court with the direction that the district court enter an order requiring the local to reconsider the plaintiff’s rejections and to state reasons for the rejection, if upheld. Thus, the New Jersey court made clear that, even if, under Philipchuk, those rejected for union membership were not entitled to rights in the union, transfer applicants could not be so rejected without a statement of reasons or for any arbitrary reason.

Thereafter, Local 11 adopted the approved transfer and waiting list procedure to which plaintiffs here have been subject. Under this procedure, the local does not risk having to manufacture non-arbitrary reasons for an applicant’s rejection; qualified applicants are “approved”, but then placed on a waiting list, which is tantamount to being rejected for the period until they are finally admitted. The question then becomes whether the new waiting list procedure satisfies the Moore requirement that a transfer applicant cannot be denied membership without “just cause”, Moore at 537, 334 A.2d 1, and whether the approved transfers on the waiting list are in fact members of the local under Hughes because they have fulfilled the requirements of membership, as evidenced in their approval for transfer.

II. The Constitutional Claim

The defendant does not claim that the waiting list procedure is literally provided for in the union’s constitution, nor could it. The constitution provides only that the local should “accept or reject” transfer applications. The local contends, rather, that the waiting list procedure does not manifest a “patently unreasonable” interpretation of the union’s constitution. See Plumbers Local 334 v. Plumbers Int’l Union, 669 F.2d at 131. It is true that great deference is due a union’s interpretation of its own Constitution and that such an interpretation should not be disturbed unless it is “patently unreasonable.” Id. Yet the two reason offered by the defendant for the use of the waiting list procedure are so illogical and impermissible, that the court cannot but conclude that the procedure involves a patently unreasonable interpretation of the union’s constitution.

First, defendant contends that its quota system is required so that it may continue to meet the alleged percentage goal for minority membership purportedly set forth in the Consent Decree. The fact that defendant should choose to rely on this argument in light of the history of the litigation generating the Consent Decree is indeed odd, however; this precise issue was decided adversely to the defendant in an oral opinion rendered by the Hon. Curtis H. Meanor on September 29, 1978. See United States v. Plumber Local 24, et al., No. 444-71, Transcript of Proceedings (September 29, 1978).

In that case, Judge Meanor was called upon to decide whether to enjoin as violative of the Consent Decree the orders of five New Jersey state chancery court judges, presumably issued as a result of the Moore litigation, requiring the immediate transfer of 80 white transfer applicants into several New Jersey Ironworker locals, including Local 11. The state court orders were based on a determination that the transfer applicants had been discriminated against as non-relatives of current members, and that they were entitled as a matter of law to immediate membership in the locals in question. Id. at 35-36. Judge Meanor specifically noted that the decision before him was not whether he had the power to restrain the state court’s orders, which he assumed that he had. Id. at 36, 11. 5-7. Rather, the critical question was whether the state court’s orders to transfer the applicants into the locals would “impair or affect or frustrate the Federal Court order.” Id. at 41, 11. 19-20. Judge Meanor concluded that they would not.

The judge first noted that, contrary to the defendant’s contention before the court here, see Defendant’s Brief at 3, the Consent Decree contained no percentage quota for minority membership. Id. at 40. Rather, the Decree merely set a goal for the admission of 375 new minority members through the local’s apprenticeship program. Moreover, the only provision specifically addressing transfer applicants, Paragraph 33B of the decree, as amended by a 1973 stipulation of the parties, merely provided that transfer applications would be accepted or rejected according to the “rules and regulations of the defendant locals and the International governing such transfers,” so long as the procedures employed “did not have the effect of discriminating against or excluding any such applicant on the basis of his race or color, or of perpetuating the effects of any such past exclusion ...” Thus, the judge found that “as a matter of plain English”, the Consent Decree did not preclude the transfer of applicants ordered by the state court.

Judge Meanor went on to find that enforcement of the state court orders would not frustrate the intent of the Consent Decree. He noted that admission of the transfer applicants would not affect measures taken under the decree to admit the targeted 375 minority members through the apprenticeship program. And, he noted that admission of the transfer applicants should not affect job assignments for minorities because the locals were theoretically bound not to discriminate against nonmembers in job assignments in any event. Finally, he dismissed any argument that addition of the transfer applicants would dilute the political power of the minorities in the locals, observing that

what is really sought here in my judgment is to use the fact of past racial discrimination on the part of these defendants as a reason for the perpetuation of their historical discrimination against transferees ... if experience shows that minority rights are somehow frustrated or impaired by the presence of the transferees in these locals, then the thing to do is not to discriminate against the transferees, but to adjust the consent order so that that diserimination against blacks can be eliminated.

Id. at 43-44.

The court is in complete agreement with the determination of Judge Meanor made seven years ago. It is obvious that the intent of the Consent Decree is to require the union to take affirmative steps to increase the number of its minority members, not to decrease the number of its members overall. Indeed, the sections of the Consent Decree that have been supplied to the court contain detailed requirements for recruiting minority members and otherwise encouraging minority applicants, but contain no provision requiring the local to limit its membership. Moreover, even if the defendant in good faith believed that the Consent Decree required maintenance of a certain percentage of minority members, Judge Meanor’s ruling to the contrary notwithstanding, it is apparent to the court that compliance with the Consent Decree was not the union’s chief motivation for adopting the waiting list procedure; not one of the waiting list notices to plaintiffs so much as mentioned the Consent Decree. Rather it appears to the court that, as in 1978, “what is really sought here ... is to use the fact of past racial discrimination on the part of these defendants as a reason for the perpetuation of their historical discrimination against transferees.” Id. Defendant’s attempt to twist the Consent Decree to justify this self-protectionism is indeed offensive to this court.

Even were the court not in such firm agreement with Judge Meanor, defendant is certainly bound by Judge Meanor’s construction of the Consent Decree issued in the context of the Plumber’s Local litigation in any event. Given the binding construction of the Consent Decree lent to it by Judge Meanor, the court cannot but conclude that any interpretation of the union’s constitution resting on an alternative construction of the Decree is truly “patently unreasonable.”

Defendant’s second rationale for the use of the waiting list procedure is equally unreasonable. Local 11 operates an exclusive hiring hall in its jurisdiction. Under these circumstances, it is illegal and an unfair labor practice within the meaning of the National Labor Relations Act for the local to discriminate against non-members in job referrals. 29 U.S.C. § 158(b)(1)(A), (b)(2); N.L.R.B. v. Local 483 and Local 11, 672 F.2d 1159. Yet the local contends that it is privileged to allocate membership to transfer applicants based on “the amount and nature of the work in the union’s geographic area, the skills of the current members, and the rate of attrition of current members,” Defendant’s Brief at 13 and Exhibit G (Answer to Interrogatories 11(b) and (c)), and that it may limit its membership to a number bearing “some rational relationship to the number of jobs available.” Defendants’ Brief at 16. Given that it is illegal for the union to discriminate against non-members in job referrals, the court is utterly baffled by this explanation for the union’s waiting list procedure. Obviously, if the local is truly fair in referring jobs as between members and nonmembers of the local, there is no reason why the availability of work should be a barrier to membership. The only possible rationale for limiting the number of members based on the availability of work that the court can conceive of is an intention of the part of the union to discriminate illegally against non-members and to give preference to members in job referrals. A practice which so assumes as its justification a violation of the NLRA could hardly be a “reasonable” interpretation of the International’s constitution.

Defendant’s sole support for the argument that their interpretation is not “patently unreasonable” is a decision by the Seventh Circuit, Gavin v. Local 1, 553 F.2d 28 (7th Cir.1977), which, although factually similar, is legally inapposite. Gavin was a suit by members of the International Iron-workers who had applied for admission to an Ironworkers local in the Chicago area. Rather than accepting or rejecting the applicants outright, the local held the applications in abeyance, without acting on them for an extended period of time, ostensibly because acceptance of the applicants would hinder the local’s compliance with a court decree arising out of a race discrimination suit against the union. The plaintiffs argued that, for all intents and purposes, they were members of the local and, as such, were entitled to the rights outlined in Section 101 of the LMRDA.

The Seventh Circuit disagreed. The court noted that acceptance of the transfer applicants under the International Constitution in effect in 1977 was not simply a ministerial act, as it had been at the time of the Third Circuit’s decision in Hughes v. Local 11, 287 F.2d 810 (3d Cir.1961); rather, the constitution allowed the local to accept or reject would-be transferees. Thus, applicants could not be said to have fulfilled the requirements of membership simply by submitting their applications for transfer, as they had in Hughes. They were accordingly not automatically entitled to be afforded the rights of members guaranteed in section 101, as were the plaintiffs in Hughes. The court thus declined to grant the plaintiffs the relief sought.

The Gavin decision dealt only with claims asserted under section 101 of the LMRDA, however. It did not purport to interpret the union’s constitution or to suggest that the constitution contemplated the practice of holding applications in abeyance. Contrary to defendant’s claim, it does not indicate that Local 11 would have been “within its rights” under the union constitution in holding the plaintiffs’ transfer application in abeyance. Defendant’s Brief at 16. Gavin is simply inapposite, therefore, to the issue of whether the waiting list procedure was a reasonable interpretation of the union’s constitution.

Moreover, it appears to the court that defendants have rather disingenuously seized upon Gavin as support for their position while studiously ignoring binding precedent closer to home, namely, Moore and Judge Meanor’s ruling in Plumber’s Local. Moore made clear that the Iron-workers could not reject transfer applicants without “just cause”; Judge Meanor in Plumber’s Local made clear that the consent decree entered in that case did not provide any such “cause”. After this decision, the local, unable simply to reject applicants without a statement of reasons, as it had been doing, apparently fashioned a new means of accomplishing the same protectionist goal: that is, by creating the approved transfer list. In fact, the timing of the first implementation of the waiting list procedure immediately after Judge Meanor’s refusal to stay the state court orders requiring transfer of deserving applicants, see Boyle Aff. ¶ 6-8, indicates that resort to the waiting list procedure was a direct response to the ruling of Judge Meanor and the state court. Gavin does not make this sort of unreasonable behavior reasonable.

In sum, the court finds that the rationales offered by the defendant for its interpretation of the union constitution are either foreclosed by Plumber’s Local or presumptively motivated by the illegal purpose of discriminating against transfer applicants in job referrals. The court cannot accept that these pretextual or illegal goals represent a reasonable interpretation of the union constitution. Accordingly, the court concludes that the defendant’s use of the approved transfer list is a violation of the International constitution.

III. The Section 101 Claims

Aside from their claims based on the International constitution, plaintiffs allege that they have been unlawfully denied the rights owing them under the union member’s “Bill of Rights”, Section 101 of the LMRDA, 29 U.S.C. § 411 et seq. Section 101 “is designed to guarantee every union member equal rights to vote and otherwise participate in union elections, freedom from unreasonable restrictions on speech and assembly, and protection from improper discipline.” Local No. 82 v. Crowley, 467 U.S. 526, 104 S.Ct. 2557, 2564, 81 L.Ed.2d 457 (1984). Under the terms of the Act, this guarantee extends only to union “members”. Mackenzie v. Local 624, 472 F.Supp. 1025, 1080 (N.D.Miss.1979). Yet membership is not limited only to those whom the union has officially recognized as members. Brennan v. Local 357, 709 F.2d 611, 614 (9th Cir.1983); Alvey v. General Electric Co., 622 F.2d 1279, 1284 (7th Cir.1980). Rather, a “member” includes “any person who has fulfilled the requirements for membership in such organization ...” 29 U.S.C. § 402(o). Thus, the Act provides membership to “those who are members in substance despite the fact that union officials have not performed the ministerial acts necessary to give formal recognition to a person’s status as a member.” Brennan v. Local 357, 709 F.2d at 614, citing Hughes v. Local 11, 287 F.2d at 815. In the Third Circuit’s decision in Hughes, this meant that Local 11, the defendant in this case, could not refuse membership rights to a transfer applicant who had fulfilled all of the requisites for membership in the Local. Despite changes in the union constitution since Hughes, that decision is still controlling here.

As noted previously, at the time of the Hughes decision, the Ironworker’s International constitution did not allow for any discretion as to whether an applicant for transfer could be admitted: the constitution mandated admission. The only prerequisite for transfer membership at that time was the presentation of a “transfer card”. Hughes v. Local 11, 287 F.2d at 812. Subsequent to Hughes, the constitution was changed so that the union’s Executive Committee may now decide to reject an applicant for transfer, provided that, after Moore, it has a good, non-arbitrary reason for doing so. This change in the union’s constitution in no way alters the fundamental principle of Hughes, however, that an applicant who has fulfilled all substantive requirements for membership is a member and is due the rights of membership under section 101. The union’s failure to perform some ministerial act acknowledging the membership of one who has fulfilled membership requirements does not give the union license to refuse to accord the applicant the rights he is due.

In this case, plaintiffs’ applications for transfer were not rejected, they were expressly approved: each plaintiff received a letter from the union indicating that the Local’s Executive Committee “has approved your application for transfer of membership.” Complaint, Exhibits A-E. Moreover, they were informed that “[n]o further action will be required on your part to gain admission.” Id. According to the defendant’s own Executive Committee, therefore, the plaintiffs had fulfilled all of the requirements for membership. The only step standing in the way of the plaintiffs’ admission was removal from the approved transfer list to the active membership list, just as in Hughes the only step was formal recognition of the plaintiff’s application. This is in direct contrast to the circumstances existing in Philipchuk and Gavin, where no finding of qualification for membership by the union had been made. When an applicant has been determined by the union to have fulfilled the requirements for membership and the only barrier to the applicant’s admission is formal recognition by the union, Hughes mandates that the applicant be afforded the rights of a union member as provided in section 101 of the LMRDA. The plaintiffs are thus entitled to relief on this count of the amended complaint as well.

IY. Statute of Limitations

Notwithstanding the merits of plaintiffs’ claims, and despite the court’s previous ruling that plaintiffs’ LMRDA claims were not time-barred, defendant again contends that plaintiffs are barred from obtaining relief on their LMRDA claims by virtue of an alleged untimeliness in the filing of their complaint. Defendant now extends this argument to plaintiffs’ contract claims as well. Once again, the court is unpersuaded. The court finds that plaintiffs’ claims under the union constitution are subject to New Jersey’s six year statute of limitations for contract actions, under which they are clearly timely. Moreover, even if plaintiffs’ contract claims were subject to the shorter six month statute of limitations borrowed from section 10(b) of the NLRA, as defendant urges, the plaintiffs’ claims are timely because the letters of notification from the local to the plaintiffs, which defendants claim triggered the limitation period, were not “definitive adverse actions” sufficient to start the running of the limitation period. See Local 1075 v. Rubber Workers, 716 F.2d 182, 187 (3d Cir.1983). The court declines to reconsider its previous ruling that plaintiffs’ LMRA claims are timely under the six month statute of limitations under a theory that the actions complained of constituted a repeated violation triggering the running of the limitation period anew with each violation.

A. Selection 301 Claims

(1) Applicable Limitation Period

Nearly twenty years ago, the Supreme Court ruled that suits on labor contracts under section 301 were subject to the state limitation period for the most closely analogous state cause of action. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO v. Hoosier Cardinal Corp, 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). In Hoosier Cardinal the Court noted that suits on labor contracts within the federal courts’ jurisdiction under section 301 are generally to be governed by “federal law, which the court must fashion from the policy of our national labor laws.” Id. at 701, 86 S.Ct. at 1111, quoting Textile Workers v. Lincon Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Given that section 301 does not specify any limitation period, however, the Court declined to fabricate one. Instead, it ruled that federal courts entertaining section 301 suits should simply borrow the most analogous state limitation period. Id., 383 U.S. at 703-04, 86 S.Ct. at 1112. While recognizing the lack of uniformity this rule of thumb would cause, the Court reasoned that the relatively small need for uniformity in most section 301 suits was not a sufficient justification “for the drastic sort of judicial legislation that is urged upon us.” Id. at 703, 86 S.Ct. at 1112.

That holding remained intact until 1983, when it was modified somewhat in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). DelCostello involved a “hybrid” action under section 301 by an employee against his employer for breach of a collective bargaining agreement, and against his union for breach of its duty of fair representation, a type of action first recognized in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) and Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). The Court explicitly noted that an employee’s cause of action for breach of the duty of fair representation against a union “is implied under the scheme of the National Labor Relations Act,” id., 462 U.S. at 164, 103 S.Ct. at 2290, and, as such, bears a marked “family resemblance” to a claim based on an unfair labor practice. Id. at 170, 103 S.Ct. at 2293. Because hybrid employee suits implicate many considerations relevant to the choice of a limitations period in common with those raised by unfair labor practice charges under the NLRA, including “the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee’s interest in setting aside what he views as an unjust settlement under the collective bargaining agreement,” id. at 171, 103 S.Ct. at 2294, the court concluded that section 10(b)’s six month limitation period was more appropriate to such suits than any alternative state limitations period. The Court cautioned, however, that its holding “should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action, in labor law or elsewhere.” Id. at 171, 103 S.Ct. at 2294. Rather, federal limitation periods should only be preferred over otherwise available state limitations periods “when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a ... more appropriate vehicle for interstitial lawmaking.” Id. at 172, 103 S.Ct. at 2294.

The Third Circuit subsequently expanded the new policy of borrowing the federal NLRA limitation period in labor suits by applying it to an action under the union member’s “Bill of Rights”, Section 101 and 102 of the LMRDA, 29 U.S.C. §§ 411-412. The court found that section 102 claims implicated the same concerns underlying the choice of limitations periods as did unfair practice charges, including the interest in “rapid resolution of internal union disputes.” Id. at 184. The court also reasoned that the “allegedly unlawful activity in a section 102 action is rarely latent,” so that imposition of a six month limitation would not be inherently unfair. Id.

Since its decision in Local 1397, the Court of Appeals for this Circuit has applied the section 10(b) limitation period in a hybrid duty of fair representation/breach of contract action brought to enforce, rather than to vacate, an arbitration award, in contrast to the circumstances in Mitehel and DelCostello. See Taylor v. Ford Motor Co., 761 F.2d 931 (3d Cir.1985). The court construed DelCostello “as mandating application of the six month limitation period to all section 301 actions that are predicated upon a union’s breach of its duty of fair representation, and implicate no countervailing federal policy.” Id. at 932. It expressly distinguished “straight, non-hybrid section 301 actions, to which, the Supreme Court has indicated, the rule of Hoosier Cardinal still applies.” Id. at 933 n. 2, citing DelCostello, 462 U.S. at 151, 103 S.Ct. at 2281. The court has also ruled that a suit by a union against an employer to compel arbitration is governed by the six month limitation period of section 10(b). Federation of Westinghouse Independent Salaried Unions v. Westinghouse Electric Corp., 736 F.2d 896 (3d Cir.1984).

Following the Third Circuit’s ruling in Local 1397, in the context of plaintiff’s motion to amend their complaint, this court held that plaintiffs’ section 101 claims were subject to the six month limitations period of section 10(b). The defendant now urges the court to find that plaintiffs’ contract claims, founded upon the union constitution, are subject to the six month limitation period as well. Yet, as outlined below, defendant’s argument contradicts the logic of DelCostello, Taylor, and Local 1397, and would effectively overrule Hoosier Cardinal if adopted.

As noted, the Court in DelCostello reaffirmed the rule that “resort to state law remains the norm for borrowing of limitation periods,” and cited Hoosier Cardinal approvingly. 462 U.S. at 171, 103 S.Ct. at 2294. The court purported only to be stating a rule for actions in which “there is not ... an obvious state-law choice for application ...” Id. at 172, 103 S.Ct. at 2294. In such cases, “where a federal law clearly provides a closer analogy than available state statutes,” the federal limitation should be borrowed, particularly “when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking ...” Id. The threshold question under DelCostello is therefore whether there exists an obviously analogous state law limitation period for any claim arising in a labor context.

For claims arising solely out of the rights and obligations created by federal labor statutes, it is naturally difficult to find a limitation corresponding to a comparable state law claim. Breaches of the duty of fair representation or breaches of the union member’s “Bill of Rights” will generally have no very close state law analogue. Applicable limitation periods will vary widely from state to state, depending on how the analogy to federally-created causes of action is drawn. In such cases, a federal limitation period, such as the six month period set in section 10(b) of the NLRA, will make for a closer fit. Application of a state limitation period will result only in a straining to find the most analogous period, and uncertainty and unpredictability for litigants.

In an action to enforce a labor contract, however, a closely analogous state statute will always be available. Claims sounding in contract are as old as common law jurisprudence itself. The states have a well developed and consistent body of contract law, reflecting the cumulative wisdom of jurists over the years. Indeed, in ruling that section 301 does not pre-empt state court jurisdiction over disputes based on labor contracts, the Supreme Court recognized that Congress intended the courts to draw upon the expertise of the state courts and this body of state contract law in the resolution of labor contract disputes: “The clear implication of the entire record of the congressional debates in both 1946 and 1947 [in connection with passage of Labor Management Relations Act] is that the purpose of conferring jurisdiction upon the federal district courts was not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various states over contracts made by labor organizations.” Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 511, 82 S.Ct. 519, 525, 7 L.Ed.2d 483 (1961). Notably, although Congress chose to make certain causes of action based on federally created rights subject to the exclusive jurisdiction of the National Labor Relations Board in the interest of promoting uniformity of decisional law, it

expressly rejected that policy with respect to violations of collective bargaining agreements by rejecting the proposal that such violations be made unfair labor practices. Instead, Congress deliberately chose to leave the enforcement of collective bargaining agreements ‘to the usual process of law.’

Id. at 513, 82 S.Ct. at 526, quoting H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., p. 42, U.S.Code Cong. Service 1947, p. 1147. Congress thus clearly contemplated that courts would look to the consistent body of state contract law, including procedural law, in fashioning rules to govern labor contract disputes. The direction in DelCostello to look to state statutes of limitation where they are closely analogous is simply a restatement of that policy.

Unlike either of those two scenarios, as noted, DelCostello itself involved the rather unique circumstance of a “hybrid” action of the sort recognized in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) and Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). In such a suit, involving a breach of contract by an employer and a breach of the duty of fair representation by a union, the plaintiff’s cause of action in contract against the employer necessarily depends upon a showing that the union breached its duty of fair representation to the plaintiff, Vaca, 386 U.S. at 186, 87 S.Ct. at 914; Hines, 424 U.S. at 572, 96 S.Ct. at 1060. The employee’s contract claim is “inextricably interdependent” with the breach of duty claim. DelCostello 462 U.S. at 164-65, 103 S.Ct. at 2291.

In the circumstances of a hybrid suit, the application of a six month limitation period made sense. The union’s duty of fair representation is an obligation implied under the scheme of the NLRA. DelCostello 462 U.S. at 164 and n. 14, 103 S.Ct. at 2290 and n. 14. As such, it is logically subject to the six month limitation applicable to claims under the NLRA. Given that the employee has no cause of action in contract against the employer absent a showing that the union has breached its duty, it follows that the same six month limitation period should be applied to the suit as a whole. See United Parcel Service Inc. v. Mitchell, 451 U.S. 56 at 67, 101 S.Ct. 1559 at 1566, 67 L.Ed.2d 732 (1981) (Stewart J., concurring).

Nothing in the logic or language of DelCostello indicates that the six month limitation period should apply to a contract action under section 301 when the contract claim is not, as in a Vaca-Hines suit, absolutely predicated on the existence of an implied claim under the NLRA, or some other federally created right. Rather, “straight, non-hybrid, section 301 actions” remain subject to the rule in Hoosier Cardinal. Taylor v. Ford Motor Co., 761 F.2d at 933 n. 2. The rule emerging from DelCostello and its progeny in this circuit is therefore that causes of action created by federal labor statutes, such as a breach of duty claim implied under the NLRA, or a claim under the union member’s “Bill of Rights”, are governed by the six month limitation period borrowed from the NLRA, as are “hybrid” suits which necessarily require the proof of a statutory claim for recovery. Claims arising solely as a result of a contract between labor organizations, however, are subject to the usual state contract limitation period, borrowed and incorporated as federal law, as long as the plaintiff’s contract claim does not necessarily entail proof of a federal statutory violation as a prerequisite to relief.

In this case, the plaintiff has alleged two independent causes of action: a breach of the union’s constitution, a contract claim, and violation of section 101, a claim arising solely under the federal labor law. Local 1397, and the logic of DelCostello make clear that the section 101 claims

are subject to the six month limitation period of section 10(b). Plaintiff’s contract claim is in no way predicated upon the existence of a successful section 101 claim, however. Indeed, plaintiff’s original complaint, brought in state court, alleged only a claim sounding in contract, and plaintiff’s section 101 claims were not added until the filing of the plaintiff’s amended complaint. Standing independent of plaintiff’s claim created by the federal labor law, as it does, plaintiff’s contract claim is subject to the borrowed New Jersey statute of limitations of six years for contract actions. N.J.Stat.Ann. 2A:14-1. The fact that defendant’s breach of contract may have constituted an unfair labor practice or may have resulted in a violation of the plaintiffs’ rights under section 101 does not make it any less a breach of contract, does not impair this court’s jurisdiction under section 301, Vaca v. Sipes, 386 U.S. at 179-80, 87 S.Ct. at 911, citing Smith v. Evening News Ass’n., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Local 174 v. Lucas Flour Co., 369 U.S. 95, 101 n. 9, 82 S.Ct. 571, 575 n. 9, 7 L.Ed.2d 593 (1962), and should not affect the applicable limitation period for the breach of contract claim. Cf. O’Hare v. General Marine Transport Corp., 740 F.2d 160, 168 (2d Cir.1984) cert. denied, — U.S. -, 105 S.Ct. 1181, 84 L.Ed.2d 329 (1985) (“we agree with the district court that the Del-Costello holding turns on the particular nature of the duty of fair representation action, and cannot reasonably be expanded to all section 301 claims that involve facts which might also have established an unfair labor practice”). A contrary rule would be inconsistent with the body of law recognizing that contract actions under section 301 are to be governed by the “usual processes of law”, despite the fact that the action complained of may constitute a violation of an independent federally created right. Dowd Box Co. v. Courtney, 368 U.S. at 513, 82 S.Ct. at 525. By exempting actions for breach of labor contracts from the jurisdiction of the NLRB and reserving it to the courts, Congress manifested an intent that the courts draw upon the body of state law.

The court thus concludes that plaintiffs section 301 claims are governed by the six year New Jersey statute of limitation for simple contract actions. The plaintiffs having filed their complaints well within six years of the earliest date from which plaintiffs cause of action could have accrued — the date of notification that they were accepted as members but placed on the approved transfer list — the court finds that their claims for breach of the union constitution under section 301 are timely under the six year statute of limitations.

(2) Triggering of the Limitation Period

Alternatively, the court notes that even if it did not conclude that the plaintiffs’ 301 claims are subject to New Jersey’s six year limitation period, it could not find plaintiffs’ claims based on the union constitution to be untimely on this record. Again, the historical context of the plaintiffs’ application for transfer is all important. After pursuing the right to acceptance into the local for fifteen years since the Hughes decision, would-be transferees into the Northern New Jersey Ironworkers Locals won two important victories. First, they won the right not to be rejected arbitrarily and without good cause in the Moore litigation. And, before Judge Meanor, they were successful in establishing that the terms of the Plumbers Local Consent Decree did not provide cause for the local’s failure to effect the transfers. In the wake of Judge Meanor’s ruling, 12 applicants were transferred into Local 11. Boyle Aff., ¶ 6.

According to the defendant, scores of transfer applicants seeking admission based on the precedent set in these victories, including the plaintiffs at bar, then filed for admission to the Local. After the rulings in Moore and by Judge Meanor, these applicants had every reason to expect that the local would finally recognize its obligation to accept them under the union constitution and would effect their transfer, as it had the transfers of their 12 predecessors. To confirm this expectation, these applicants were informed in letters from the local that they were accepted for membership and were promised admission. About the proposed delay in transferring them, applicants were told only that the local was “unable to immediately transfer into membership all such applicants.” See Complaint, Exhibits A-E. Letters in response to the earlier applications indicated the number of applicants that could expect to be transferred that year, see Exhibits A, C & E, but letters responding to later applicants failed to provide even that information. See Exhibits B and D. Nothing in the letter served to inform the plaintiffs that the local would take more than five years to effect their transfers. Moreover, the letters assured the plaintiffs that “[n]o further action on your part will be required to gain admission.” Exhibits A-E. Thus, the plaintiffs were not put on notice by these letters that their waiting period would extend into the better part of a decade, rather than lasting for only a few unobjectionable months, and they were encouraged not to take any immediate action to secure their admission.

While the union’s action in placing the plaintiffs on an approved transfer list rather than immediately accepting them into membership was a technical breach of the union constitution, the plaintiffs could not have appreciated the fact that this action was truly adverse based on the letters of notification they received. The court of appeals for this Circuit has previously recognized that a union member cannot be expected to take steps to obtain relief in the absence of a “definitive adverse action” signalling the need to seek relief. Local 1075 v. Rubber Workers, 716 F.2d 182, 187 (3d Cir.1983) (“[cjertainly a sine qua non of an exhaustion requirement is the existence of some definitive adverse action from which the internal appeal must be taken”). Moreover, particularly in light of the local’s assurances that they need take no action, it was entirely reasonable for the plaintiffs to wait for some amount of time, with the expectation that the local would fulfill its obligation under Moore.

The court thus determines that it would be fundamentally unfair to allow the local to rely on the letters sent to the plaintiffs as a trigger for any short statute of limitations. The letters are affirmatively misleading in that they appeared to be positive awards of membership, rather than notices of an adverse action. To allow the union to rely on these would be to reward its obfuscation of the true consequences its action held for the plaintiffs.

Notably, in a well-considered and insightful concurrence filed recently, Judge Becker of the Third Circuit identified the incentive behind and the consequences of such union obfuscation. See Scott v. Local 863, 725 F.2d 226, 229-31 (3d Cir.1984) (Becker J. concurring). Writing in the context of a Vaca-Hines hybrid action, Judge Becker observed that the twin defenses of failure to exhaust internal remedies and running of the statute of limitations give union members a “narrow window” within which to file suit: the union member is required to pursue grievance procedures until it appears that they are futile; then, as soon as this futility becomes apparent, the six month limitation period begins to run. Judge Becker noted that this twin set of strictures on the potential plaintiff gives the union an incentive to “be equivocal or contradictory in their communications to dissatisfied members,” id. at 230, so that the plaintiff will be unsure as to whether he is required to continue seeking relief in the union, or should be rushing instead to court. As a result, the Judge observed,

[sjeveral harmful consequences are likely to follow from court-inspired vagueness of these union communications. First will come a guessing game. To determine whether a plaintiff’s suit can go forward, overburdened district courts will be remitted to a tedious and often useless search through the vagaries of union bylaws or will be forced to rationalize informal union procedures likely to have been invented for each dispute. If it is thereby determined that the suitor has not exhausted, his day in court is, at worst, delayed. But if, in reliance on what he thought were genuine internal remedies, he refrains from suing for as much as six months, and it is ultimately determined that these remedies were illusory, his suit will be forever barred. Second, to avoid this trap, employee plaintiffs will have to file numerous precautionary lawsuits — each of which will require the courts to undertake the bootless inquiry described below — in the hopes that perhaps one of the suits will have been timed correctly.

Id. at 231. A union’s incentive to exploit a guessing game strategy is of most concern in a case like this one, where there is no hope that the union’s own “internal majoritarian processes” will correct the abuse because the very harm suffered by the affected plaintiffs is an exclusion from the union’s processes of self-governance. See id. Judge Becker concluded that a union should be able “to start the DelCostello statute of limitations running only from the time that the employee has received from it a clear, written statement telling him that further internal appeals are futile, and the time for judicial action has begun ... analogous to a right to sue letter in employment discrimination law.” Id.

This case presents a variation on the theme sounded by Judge Becker. By failing to give the plaintiffs a clear notice that their placement on the approved transfer list was an appealable adverse action, choosing rather to cloak the notice as one of acceptance and to assure the plaintiffs that no immediate action on their parts was necessary, the defendant succeeded in lulling the plaintiffs so that they would not appreciate the adverse effect of the union’s action until, according to defendant, relief was foreclosed. Under the defendant’s theory, the plaintiffs are to be penalized for their reliance on relief promised them by the union, which ultimately proved to be illusory because of the passage of an unreasonable amount of time. The court cannot accept this argument. Aside from its unfairness, it would create a rule requiring union members to immediately appeal any delay in action by the union, regardless of the union’s assurance that no such appeal is necessary. Rather than resulting in a swift resolution of disputes, such a rule would only serve to engender disputes and ultimately to clog the courts with disputes better left to internal resolution. Thus, even if the plaintiffs’ claim based on the union’s constitution were subject to the short six month limitation period of section 10(b) of the NLRA, the court finds that the running of this period could not have been triggered by the plaintiff’s receipt of the letters relied upon by defendant, but only by their realization over time that the relief promised them by the local was not forthcoming within a reasonable period of time.

(B) Section 101 Claims

In contrast to plaintiffs’ claims under the union constitution, plaintiffs’ claims under section 101 of the LMRDA are clearly subject to the six month limitation period of section 10(b). Local 1397, supra. Yet, as the court has previously ruled, see Bench Opinion (2/14/85), these claims are not untimely. As the court noted in its prior opinion, the defendant’s discriminatory treatment of plaintiffs has been repeated and ongoing. See Bench Opinion at 8, citing N.L.R.B. v. Actor’s Equity Assn. 644 F.2d 939 (2d Cir.1981); N.L.R.B. v. Local 269, 357 F.2d 51, 56 (3d Cir.1966); Melville Confections, Inc. v. N.L.R.B., 327 F.2d 689 (7th Cir.), cert. denied, 377 U.S. 933, 84 S.Ct. 1337, 12 L.Ed.2d 297 (1964); see also Lewis v. Local 100, 750 F.2d 1368, 1378-79 (7th Cir.1984) (repeated failure to refer plaintiff out of hiring hall constituted continuing violation, and plaintiff could bring suit for any discriminatory acts occurring within six months prior to filing of complaint under section 10(b)); N.L.R.B. v. Al Bryant, Inc., 711 F.2d 543 (3d Cir.1983) cert. denied 464 U.S. 1039, 104 S.Ct. 699, 79 L.Ed.2d 165 (1984) (plaintiff’s claim with respect to union’s continuing failure to abide by collective bargaining agreement within six months preceding filing of complaint was timely under section 10(b) despite fact that union had initially repudiated agreement more than six months before); J. Ray McDermott & Co. v. N.L.R.B., 571 F.2d 850, 858 (5th Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978) (fact that employer’s refusal to bargain was repeated did not bar suit on refusals within six months preceding filing of complaint under section 10(b)).

The cases principally relied upon by defendant are not to the contrary. See Valleme v. Local 705, 755 F.2d 520 (7th Cir.1984); Bedat v. McLean Trucking Co., 119 LRRM 2945 (D.Conn.1984); Adkins v. General Motors Corp., 573 F.Supp. 1188 (S.D.Ohio 1983). These cases were all suits challenging a union’s decision not to arbitrate a grievance, or otherwise to breach its duty of fair representation, a discrete act which was, in itself, the conduct found offensive. Here, the action from which defendant claims the limitation period should date, the issuance of the notification letters to the plaintiffs, did not in itself constitute a violation of section 101. Rather, given the plaintiffs’ status after issuance of these letters, defendant’s repeated and ongoing failure to afford them the rights guaranteed them under section 101 amounted to the violation of section 101. Cf. Lewis v. Local 100, 750 F.2d at 1379 (plaintiffs’ complaint of union’s failure to refer him out of hiring hall “alleges a continuing course of conduct ..., not one particular instance in which, for example, the Union failed to process a grievance concerning discharge or promotion”). Defendant’s argument makes as much sense as to say that a union member’s receipt of a notice of admission into membership triggers the limitation period for any subsequent discriminatory act against him. Such a position is, of course, untenable. The court accordingly concludes that plaintiffs’ claims under section 101, like their claims based on the union’s constitution, are timely.

CONCLUSION

For the foregoing reasons, the court determines that plaintiffs are entitled to relief on their claims under the union constitution and under section 101 of the LMRDA, and that said claims are not untimely under the applicable statutes of limitation. In light of correspondence from counsel for the parties to the court indicating that the circumstances of the plaintiffs may have changed since this motion was filed, the parties are directed to submit briefs within 20 days indicating their positions as to the relief that should be ordered by the court in accordance with this opinion. Furthermore, the court requests that plaintiffs submit proposals for sanctions in the event the defendant continues to ignore rulings of the courts or engages in further subterfuges to avoid their implementation.

      . According to the affidavit of James K. Boyle, 2/25/85, Business Manager of the Local, submitted by defendant, plaintiffs Kearns and Pappainni may have become disabled from working, and so may no longer desire or be eligible for membership status. That information is relevant only to the question of relief rather than to the question of liability, however.

      . They do receive seniority credits for pension and other benefits.

      . The court finds the suggestion in defendant's brief that this stay was accomplished solely by court order, without the consent of the parties, Defendant’s Brief at 2, to be most disingenuous.

      . Courts outside of this circuit have also recognized that an interpretation by a union of its own constitution is due no deference when it manifests bad faith on the part of the union. Monzillo v. Biller, 735 F.2d 1456, 1458, (D.C.Cir.1984). On the facts that follow, the court could easily make a finding of bad faith as an alternative ground for its holding on this claim.

      . A transcript of this oral opinion was not supplied by the parties, but is contained in the records of this court, of which the court takes judicial notice.

      . Judge Meanor’s ruling was appealed, but that appeal was eventually dismissed for want of prosecution. An application for a stay of Judge Meanor’s decision pending appeal, filed shortly after the appeal, was denied by an individual judge and a panel of the Court of Appeals.

      . The plaintiffs argued that the local's inaction on their applications was in fact designed to defeat, rather than to further, the goals of the consent decree.

      . Section 101 outlines the rights guaranteed to union members. Section 102 provides a right of action to enforce those rights.

      . For example, the appellants in Local 1397 argued that Pennsylvania’s statute of limitation applicable either to tort actions for interference with business relations, or to actions to enforce civil rights, should be applied to their claim for breach of the union members' “Bill of Rights".

      . Federation of Westinghouse Independent Salaried Unions v. Westinghouse Electric Corp., 736 F.2d 896 (3d Cir.1984), is not to the contrary. In that case, the Third Circuit held that a union’s action against an employer to compel arbitration is subject to the six month limitation period of section 10(b). Although such an action is a "pure section 301” action in the sense that it involves a simple claim on a contract not intertwined with any claim for violation of a federally-created right, it is not a standard contract claim involving simply the traditional principles of contract law. The Third Circuit has previously recognized that arbitration is somewhat "sui generis’. Service Employees International Union, Local 36 v. Office Center Services, 670 F.2d 404, 409 (3d Cir.1982). Although the obligation to arbitrate is contractual, United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960); DelGrosso v. Spang & Co., 769 F.2d 928, 933 (3d Cir.1985), there is a strong federal policy in favor of arbitration. United Steel Workers, 363 U.S. at 578, 80 S.Ct. at 1350. Any doubt as to whether a contract requires arbitration is to be resolved in favor of arbitration. Id. at 583, 80 S.Ct. at 1353; Hahneman Univ. v. District 1199C, 765 F.2d 38, 41 (3d Cir.1985). Arbitration is at the heart of the system of “industrial self-government” achieved through collective bargaining agreements. United Steelworkers, 363 U.S. at 580, 80 S.Ct. at 1351. As such, it is quintessentially one of "those consensual processes that federal labor law is chiefly designed to promote-the formation of the collective agreement and the private settlement of disputes under it,” as to which the policy of uniformity and speedy resolution apply most strongly. DelCostello, 462 U.S. at 163, 103 S.Ct. at 2290. An action to compel arbitration is not so much an action for relief on the merits of the contract as it is a mechanism to set the wheels of "industrial self-government” in motion. It is therefore quite different from an action seeking relief on the merits under the terms of a contract, to which Hoosier Cardinal requires the application of a borrowed state statute of limitations.


source: Caselaw Access Project

author: FUSTE, District Judge.

license: Public Domain

text:
    Rafael MORO ARROYO, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 83-2754 (JAF).
    United States District Court, D. Puerto Rico.
    Dec. 18, 1985.
    Manuel De Jesús Mangual & Associates, San Juan, Puerto Rico, for plaintiff.
   OPINION AND ORDER

FUSTE, District Judge.

This is an action brought under section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a final determination by the Secretary of Health and Human Services (“Secretary”) denying plaintiff Rafael Moro-Arroyo a period of disability and disability insurance benefits.

Moro-Arroyo is a thirty-nine year old male with a sixth grade education. He has worked as a maintenance laborer for the Parks and Recreation Administration of the Commonwealth of Puerto Rico for approximately eighteen years. The alleged onset of disability is April 23,1981, on which date he suffered a fall in his job that caused a traumatic injury to his back and head. On April 19, 1982, plaintiff applied for social security disability benefits maintaining an inability to work due to back problems, a cervical condition, a weak arm, and a nervous condition. In the reconsideration disability report (Tr. 77), plaintiff explained that his nervous condition consisted of a depressive affect and further added back and neck pain as a physical ailment. The Social Security Administration (“SSA”) denied his application initially, and on reconsideration. The Administrative Law Judge (“AU”), on March 30,1983, held a hearing, and on May 81, 1983, found plaintiff not disabled. The AU’s decision became the Secretary’s final action when the Appeals Council, on September 9,1983, denied plaintiff’s request for review. On November 8, 1983, plaintiff brought the present action.

For plaintiff to prevail, he has to demonstrate that the Secretary’s findings are unsupported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir.1975). Substantial evidence is more than a scintilla, but less than a preponderance or the weight of the evidence. See, e.g., Consolo v. Federal Maritime Commission, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026-27, 16 L.Ed.2d 131 (1966); Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 192 (1971). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. at 1427.

The Secretary’s findings are summarized in the opinion of the AU dated May 31, 1983 (see Tr. 9-14). After a careful review of those findings, we conclude that there is substantial evidence to support the Secretary’s conclusion that plaintiff’s physical impairments (segmental sacrum spina bifida occulta and chronic back pain) are not severe and, hence, non-disabling. We now turn to the severity of plaintiff’s mental disorder.

For two years following the syncopal episode of April 1981, plaintiff has complained of a depressive mood and an anxious affect with feelings of hopelessness, worthlessness, despair, irritability, and with fearful expectations (Tr. 45, 63, 77, 85, 106). He allegedly does no household chores or socialize as he prefers to be alone, and suffers from severe headaches and insomnia (see Tr. 45, 77, 85, 87, 106). He has exhibited potential combative behavior towards his wife and children (Tr. 41). His symptoms are fully supported by the medical evidence in the record. At the psychiatric evaluation of May 7, 1982, plaintiff acted confused, uncooperative, and expressed suicidal tendencies (Tr. 93). Dr. Fausto Jiménez, on that examination, described his conduct as bizarre, and his judgment as superficial (Tr. 93). In another psychological evaluation dated February 7, 1983, his intellectual capacity was “borderline” (Tr. 130-31). Further, his memory is affected as demonstrated by his unresponsiveness to questioning at the AU hearing (Tr. 27-44). His answers to questions are generally delayed, and consistent with a severe depressive disorder, a moderate psychomotor retardation is evident (Tr. 106-OS). For his depressed mood, plaintiff has been treated with Dalmane, Etrafon, Limbitrol, and Mellaril, with little or no demonstrable improvement (Tr. 77, 99, 106, 149). As supported by the medical evidence, Moro-Arroyo has been diagnosed as having a moderately severe to severe depressive disorder (see Tr. 93, 106-08, 138-48).

The Secretary did find that plaintiff suffered from a dysthymic disorder, usually a less severe condition than a major depression. See generally, American Psychiatric Association, DSM-III Diagnostic and Statistical Manual of Mental Disorders, 300.-40, at 220-23 (3d ed. 1984). But the Secretary concluded that this disorder was not severe as plaintiff was “... able to understand and to respond appropriately to supervision, co-workers and work pressures in a work setting.” See 20 C.F.R. §§ 404.-1521(b)(2)-(6), 404.1520(c); see also, Tr. 13. According to the Secretary, the medical evidence shows that plaintiff is “alert, oriented in three spheres, logical, coherent, relevant and in contact with reality.” (Tr. 13). Even so, these findings rule out the possibility of a severe psychotic disorder, but do not otherwise contradict the severity, as here, of a depressive neurosis. The Secretary simply cannot substitute his own impression of plaintiff’s health for uncontradicted medical evidence. Suárez v. Secretary of Health and Human Services, 740 F.2d 1 (1st Cir.1984) (per curiam). Given plaintiff’s unchallenged diagnosis of a moderately severe to severe depressive disorder, and the effect on his judgment and personal relations, the Secretary’s findings of no severe impairment are unsupported by substantial evidence. See, e.g., Carrillo-Marin v. Secretary of Health and Human Services, 758 F.2d 14, 16 (1st Cir.1985) (per curiam); Bianchi v. Secretary of Health and Human Services, 764 F.2d 44, 45 (1st Cir.1985) (per curiam); López-Cardona v. Secretary of Health and Human Services, 747 F.2d 1081, 1084 (1st Cir.1984) (per curiam). We thus REVERSE and REMAND this case for the Secretary to continue its disability determination pursuant to 20 C.F.R. § 404.1520. See Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6-7 (1st Cir.1982). On remand, the Secretary may admit as much additional evidence as is necessary to arrive at a determination of the extent of plaintiff’s impairment. If the evaluation reaches the fourth vocational step, 20 C.F.R. § 404.1520(e), the Secretary must

determine whether plaintiff’s physical condition in combination with his mental disorder prevents him from engaging in his past relevant employment as a maintenance worker. If that stage of review is necessary, the Secretary shall clarify whether plaintiff has the residual functional capacity to carry out unskilled heavy work. (Compare Tr. 11 with Tr. 12).

IT IS SO ORDERED.


author: KEVIN THOMAS DUFFY, District Judge:

text:
    UNITED STATES of America v. Mutulu SHAKUR, a/k/a “Doc,” a/k/a “Jeral Wayne Williams,” Sekou (Minga, a/k/a “Nathaniel Burns,” a/k/a “Mgabasi,” a/k/a “Mugubasi,” a/k/a “Eddie Holmes,” a/k/a “Lou,” Cecil Ferguson, a/k/a “Mo,” a/k/a “Chui,” Edward Lawrence Joseph, a/k/a “Edward Lawrence,” a/k/a “Jamal,” a/k/a “Tony,” a/k/a “J.R.,” William Johnson, a/k/a “Bilal Sunni-Ali,” a/k/a “Spirit,” Silvia Baraldini, a/k/a “Louise,” Susan Rosenberg, a/k/a “Elizabeth,” Cheri Dalton, a/k/a “Nahanda,” Iliana Robinson, a/k/a “Naomi,” Nilse Cobeo, a/k/a “Nilse Lawrence,” a/k/a “Ginger,” a/k/a “Gigi,” a/k/a “Giovanni Correa,” and Alan Berkman, Defendants.
    No. SSS 82 Cr. 0312 (KTD).
    United States District Court, S.D. New York.
    March 29, 1983.
    John S. Martin, Jr., U.S. Atty., S.D.N.Y., New York City, for Government; Robert S. Litt, Stacey J. Moritz, Asst. U.S. Attys., of counsel.
    Sekou Odinga, pro se.
    Jesse Berman, New York City, for defendant Cecil Ferguson.
    William Mogulescu, New York City, for defendant Edward Joseph.
    Chokwe Lumumba, Lynn Stewart, New York City, for defendant William Johnson.
    Susan Tipograph, New York City, for defendant Sylvia Baraldini.

      Lawrence Stern, New York City, for defendant Iliana Robinson.
    Robert Bloom, New York City, for defendant Alan Berkman.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

Two questions have arisen in connection with the makeup of the jury which will try this case. The government requests by motion that the jury be an “anonymous” jury. The defendants not only resist the notion of an anonymous jury but insist that they are entitled pursuant to 18 U.S.C. § 3432 to a listing of the names and addresses of all prospective jurors prior to trial.

Section 3432 of Title 18 provides in pertinent part: “A person charged with treason or other capital offense shall at least three entire days before commencement of trial be furnished with ... a list of the veniremen ... stating the place of abode of each venireman____” The defendants argue that the provisions of this section apply to the trial of this case in view of the charges contained in the indictment under § 2113(e) of Title 18. Section 2113(e) provides:

Whoever, in committing any offense defined in this section or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.

To bolster their argument the defendants point out that the prosecution already has argued that this case is a capital case. The United States Attorney, at an initial bail-setting hearing urged: “I mention the fact that it is a death penalty case because in fact the Court would be authorized, since it is a death penalty case, to deny bail altogether even though the death penalty itself might not be constitutional____” Transcript of May 18, 1382 Proceedings Before Judge Weinfeld at 37. This argument was later continued by the prosecution team actually trying this case: “I think that it can be understood that a capital case is a case for which the statute authorizes the death sentence, even if the death sentence cannot currently be imposed under constitutional standards.” Transcript of November 8, 1982 Proceedings Before Judge Weinfeld at 7.

The prosecution now maintains that this is not a capital case because the government is not seeking the death penalty for any of the defendants. Indeed, the prosecution has conceded that under present interpretations of the Constitution “the Government does not seek the death penalty or cannot because the statutory scheme is unconstitutional.” Letter of Assistant United States Attorney (“AUSA”) Robert S. Litt dated March 15, 1983.

My review of the applicable case law on the subject leads me to the conclusion that Section 3432 of Title 18 U.S.C. is inapplicable to the present situation. The safeguards which Congress set up for capital cases are restricted to those situations in which the death penalty is sought. United States v. Trapnell, 638 F.2d 1016, 1029-30 (7th Cir.1980); United States v. Freeman, 380 F.Supp. 1004 (D.N.D.1974), aff'd, 514 F.2d 171 (8th Cir.1975).

In the Freeman case the Court was presented with exactly the argument made here:

Then the question remains: Since this is by statutory language a capital crime, is the Defendant still entitled to the special privileges attendant to conviction of a capital crime, even though the death penalty cannot be imposed? Again, the answer is: No.
The clear purpose of these provisions in the statutes and the rules is to assure an adequate defense for one threatened with capital punishment, and to assure, by enlarging the procedures of jury selection, a jury not tainted by opinions about capital punishment. Since capital punishment is no longer a problem, the safeguards are no longer needed.
Therefore,
It is ordered, that:
1. The conditions of 18 U.S.C. § 3432 shall not apply.
2. The provisions of Rule 24(b), Fed. R.Crim.P., providing for 20 peremptory challenges, shall not apply.
3. Special instructions relating to capital crimes, and, in particular, a special verdict grounded on 18 U.S.C. § 1111(b) shall not be presented to the jury.

Id. at 1006.

The fact that the government here has argued in the bail hearing that this is a capital case is not inconsistent with its present position nor with my ruling herein. Section 3148 of Title 18 U.S.C. dealing with the denial of bail in capital cases “derives from the nature of the offense charged and not the penalty.” United States v. Kennedy, 618 F.2d 557, 559 (9th Cir.1980). Thus, I find no inconsistency and will follow the rule of Freeman.

I now turn to the government’s motion for an anonymous jury. The government is not requesting that the jury be sequestered mainly because of the length of the trial. The government now predicts that it will take about four and one-half months for its direct case. This estimate is based in part on the fact that the government is in possession of over 3,000 hours of taped electronic surveillance. I would suspect that there will be some defense case, although it may take less than two weeks. Still this amounts to maintaining a jury for five months. Taking a juror from his or her home and family for five months is difficult for everyone involved, and in my mind must be a last resort. That is not to say that I will not sequester all the participants in this trial should the occasion arise, but that is a situation which hopefully will not arise.

I turn then to a determination as to whether the government has shown that an anonymous jury is appropriate in this situation. First, the prosecution points to the indictment which charges crimes of violence. The evidence, it is claimed, will include descriptions of the murders of four persons and also recorded conversations in which the defendants discuss killing two government witnesses. There has been produced a “Wanted — Dead or Alive” poster with a picture of another government witness which was printed by a group closely associated with one of the defendants. Apparently this poster has had wide circulation. In parallel proceedings (certainly not in my courtroom) there has been reference to witnesses as “war criminals.” A handwritten exhortation prepared by associates of one of the defendants has been found which states in part:

We should also considered new tactics— for example, a campaign that targeted individual U.S. Attorneys or grand jurors and holds them accountable for the impact of their actions. This type of campaign can be taken to their neighborhoods and places of work, as well as to other areas where we are organizing, and can serve to demoralize these agents of imperial strategy.

Affidavit of AUSA Moritz, Exhibit E. This document refers to the grand jury which returned the instant indictment.

The government has recommended that the jurors be rendered anonymous by: (1) voir dire of potential jurors limited so that no venireman’s name, address, or place of employment is disclosed; (2) the Marshal taking the jury to lunch as a group; and (3) the Marshal taking the jurors “to an undisclosed central location, from which they can leave for their respective communities.” Affidavit of AUSA Moritz at 2.

The defendants argue that this type of jury selection “compromises [their] right to a fair trial under the Sixth Amendment of the United States Constitution and ... interferes with [their] right to be represented effectively by counsel in the selection of a jury.” Response of Lynne F. Stewart, Esq., dated March 19, 1983. An anonymous jury selection procedure has already been approved by the Court of Appeals for this Circuit. United States v. Barnes, 604 F.2d 121, 133-43 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). The defendants seek to distinguish this case from Barnes because that involved a “large narcotics case,” Response of Uiana Robinson at 1, and there had been a “sordid history” of jury tampering in large narcotics cases in this district. Affidavit of William Mogulescu at 114.

In Barnes, the Second Circuit cited two factors warranting the use of an anonymous jury. First,- the ease had generated much pretrial publicity; and second, allegations of dangerous and unscrupulous conduct abounded. 604 F.2d at 141. Because these circumstances were present, the court recognized, an anonymous jury often could have a greater chance of being impartial because “ ‘the anonymous juror feels less pressure’ ” — whether it be from defendants, friends of the defendants, friends of the victims, the press, or whomever. Id.

The instant case also has generated substantial pretrial publicity. In Barnes, Judge Werker used 150 veniremen. 604 F.2d at 135. Here the jury commissioner has summoned a special panel of 1,000 veniremen. It is unclear whether in Barnes there were any disclosed threats to witnesses. 604 F.2d at 136-37. Here, the government has asserted there are tape recordings of the defendants discussing doing away with two prosecution witnesses. The “Wanted — Dead or Alive” poster for another government witness indicates that there may be a real possibility of danger to trial participants.

In the face of this the defense argues that the “government’s motion is based on lies, innuendo and political slander. There is no supported claim that any juror would be threatened or intimidated by the defense or their supporters in any manner.” Affidavit of Susan Tipograph at ¶ 2. Such a showing is not required. “It can be no answer that no untoward event had occurred up to the opening of trial____ Cases need not be cited to prove the adage of the futility of locking the barn door after the horse has escaped.” Barnes, 604 F.2d at 137.

The defense also suggests that they will be unable to select a jury if denied the venireman’s name, address, and place of employment. This argument was raised in extenso in Barnes and its refutation is found there. See generally 604 F.2d at 137-43, and the cases cited therein. It is true that the defendants will be unable to get the exact jury they want. That is not required by the law. And in any event, the one recorded situation in American literature known to the Court in which a party got exactly the jury he wanted — he lost. See S. BENET, The Devil and Daniel Webster, THIRTEEN O’CLOCK (1937).

The first part of the government’s motion is granted. The second and third government requests will be decided at trial. The Marshal shall make such arrangements for lunch and transportation as I will from time to time direct.

SO ORDERED.


author: REGAN, District Judge.

text:
    THUNDERBIRD MOTOR FREIGHT LINES, INC., Plaintiff, v. CONSOLIDATED PIPE & SUPPLY CO., INC. OF MISSOURI, and Concol Pipe, Inc., Defendants.
    No. 83-1791C(B).
    United States District Court, E.D. Missouri, E.D.
    Oct. 24, 1983.

      Richard Shaikewitz, Wiseman, Shaikewitz, McGivern & Wahl, Alton, 111., for plaintiff.
    Douglas Rush, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., for Concol Pipe.
   MEMORANDUM AND ORDER

REGAN, District Judge.

This matter is before the Court on motion of defendant Concol Pipe, Inc. (Concol) to dismiss for lack of jurisdiction over the person and for improper venue.

This suit is against Concol and its wholly owned subsidiary, Consolidated Pipe & Supply Co. Inc. (Consolidated), on the theory that both defendants are liable for payment of freight bills for 37 shipments made by plaintiff from September 28, 1982 to March 7, 1983. Concol is an Alabama corporation whose principal place of business is in Alabama. It is not licensed or authorized to transact business in Missouri. Consolidated is a Missouri corporation. Plaintiff is a citizen of the state of Indiana with an office in Illinois.

Jurisdiction over this action is asserted in the complaint by reason of diversity of citizenship as well as federal question jurisdiction under the provisions of the Interstate Commerce Act as construed by the Supreme Court in Thurston Motor Lines v. Jordan Rand, Ltd., 460 U.S. 533, 103 S.Ct. 1343, 75 L.Ed.2d 260 (1983). However, although plaintiff now disclaims reliance on the obvious fact of diversity, Thurston does not touch upon the issue of either personal jurisdiction or venue. What was there involved (just as in diversity cases) was subject matter jurisdiction, a question which does not bear upon the present motion to dismiss.

In Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 2714, 61 L.Ed.2d 464 (1979), the Supreme Court held that “(t)he question of personal jurisdiction, which goes to the court’s power to exercise control over the parties, is typically decided in advance of venue, which is primarily a matter of choosing a convenient forum”, unless “there is a sound prudential justification”, not here present, for reversing “the normal order of considering these issues.” Accordingly, we first determine the question of personal jurisdiction over Concol.

As stated in Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir.1980), “(o)ur inquiry is a two-part one: first, whether the facts presented satisfy the [state’s] statutory requirements, and, second [if so], whether the exercise of personal jurisdiction is consistent with due process.” The statutory requirements for a general judgment on service outside the state, as set forth in Section 506.500 RSMo (and Rule 54.06 of the Missouri Supreme Court Rules), are (to the extent here relevant) (1) “(t)he transaction of any business within this state” or (2) “the making of any contract within this state.” The foregoing requirements are not to be narrowly interpreted, in view of the holding of the Missouri Supreme Court that in enacting Section 506.500, “the ultimate objective” of the General Assembly “was to extend the jurisdiction of the courts of this state over nonresident defendants to the extent permissible under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.” State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970), reaffirmed in State ex rel. Newport v. Wiesman, 627 S.W.2d 874, 876 (Mo. banc 1982).

Bearing in mind that the burden of establishing (at least prima facie) that personal jurisdiction exists is upon the plaintiff (Scullin Steel v. National Railway Utilization Corp., 676 F.2d 309, 311 (8 Cir.1982)) we examine the facts of record. The complaint alleges that Coneol and Consolidated “are owned by the same principals and carried on business as one single entity.” Coneol denies the allegation that defendants have ever carried on business as a single entity and contends that it has never transacted business in this state. Its affidavit in support of its motion specifically denies that it contracted with plaintiff to carry the freight alleged in the complaint.

Admittedly, Consolidated is wholly owned by Coneol. Its president is also chairman of Concol’s Board (or at least was apparently so in 1981). It is' evident that the relationship between the two defendants is that of parent (Coneol) and subsidiary (Consolidated) and that by virtue of its ownership, Coneol has the right to elect the officers and directors of Consolidated. However, they are separate and distinct corporate entities under the facts of record. There is no factual basis for finding that the corporate separation was fictional or other than real.

The mere fact, if so, that the two corporations may have interlocking officers and directors does not demonstrate that Coneol controls, dictates or actively participates in the day-to-day management and business operations of its subsidiary so as to make Consolidated the agent or alter ego of Coneol. We note that plaintiff has submitted a Dun & Bradstreet report on Consolidated which states “Intercompany relations: confined to merchandise transfers advances on regular terms.” It would therefore appear that Coneol simply sold pipe to Consolidated in much the same way it sold pipe to other companies in which it had no ownership interest.

Other than its reliance on the parent-subsidiary relationship of defendants, the only material submitted by plaintiff consists of unverified copies of invoices and related documents pertaining to several shipments and an affidavit of plaintiffs vice-president who is in charge of sales and dispatch. The affiant states in general language that on various occasions in late 1982 and early 1983, he and other dispatchers would receive telephone calls in Madison, Illinois from St. Louis from unnamed persons requesting freight movements, and that the “persons” calling would sometimes use the name Coneol and sometimes use the name Consolidated and on other occasions would interchange the names during the same call. However, there is no showing that any of these unidentified “persons” were agents of Coneol or otherwise authorized by Coneol to use its name, nor for that matter that such “persons” were aware of the implications of their use of Concol’s name. So, too, there is no showing that Coneol knew of and ratified such use of its name. And, so far as we are advised, Coneol has never had any prior dealings with plaintiff nor paid for any shipments allegedly requested in its name.

We hold that plaintiff has failed to sustain its burden of making a prima facie showing of facts which would authorize Missouri to provide a forum to a nonresident of this state for the exercise of personal jurisdiction over Coneol under the Missouri Long Arm Statute consistently with the Due Process Clause of the Fourteenth Amendment. Accordingly, Concol’s motion to dismiss as to it for lack of personal jurisdiction will be and is hereby sustained. In so doing, we express no opinion as to whether, as consignor, Coneol may in another forum be held liable to plaintiff under federal law for any of the freight bills. For purposes of the instant motion we limit our holding to the issue of whether plaintiff has demonstrated, prima facie, that Concol is or was transacting business in Missouri and whether it made a contract in Missouri.

The foregoing ruling moots Concol’s alternative motion to dismiss or transfer for improper venue.