# Nelson v. Johnson

> District Court, D. Minnesota · January 11, 1963 · 212 F. Supp. 233

URL: https://www.frixlaw.com/law-library/cases/2253344

## Case

- **Full name:** Lester R. NELSON, L. Boerebach, C. H. Bunkholt, Gunnar Peterson, E. H. Everetts, Ralph Hallberg, Harry Burns and Vern Thomay, Petitioners, v. Alfred JOHNSON and Robert J. Jensen, Respondents
- **Court:** District Court, D. Minnesota
- **Decided:** January 11, 1963
- **Citations:** 212 F. Supp. 233
- **Precedential status:** Published
- **Opinion:** Opinion by Larson
- **Judges:** Larson
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2253344

## Opinion text

LARSON, District Judge.
Petitioners ask this Court to amend its Findings of Fact, Conclusions of Law and Order for Judgment filed July 31, 1962.
The Court has considered the arguments and briefs of counsel.
Two prior Orders have been filed in this case, one on April 13, 1962, and one on July 31, 1962. These Orders are hereby withdrawn and set aside and the following Findings and Conclusions substituted as the final decision of this Court in this case.
This is an action by eight members of Local 386 of the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, as Petitioners against the Respondents Alfred Johnson, President, and Robert J. Jensen, Treasurer of the Union, under Sections 501(a) and (b) of the Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 535 , 29 U.S.C. 501(a) and (b), commonly known as the Landrum-Griffin Act.
1
Several Pe
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titioners are also officers of the Union. The Petitioners claim that under Section 501(a) the Respondents are in positions of trust with respect to the Union, and that as officers they have certain duties which they have violated. Specifically, Petitioners claim that Respondents have violated the following provisions of 501 (a) in that they:
1. failed to hold the money and property of said local union solely for the benefit of the organization and its members;
2. failed to expend the same in accordance with the union constitution and by-laws and resolutions of the membership thereof;
3. failed to refrain from dealing with said Union as an adverse party in any matter connected with their duties; and
4. failed to refrain from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization.
Petitioners claim that Respondents have refused to sign checks in payment of certain bills which have been approved by the membership of the Union. The most substantial item ($3,475.00) is a claim for reimbursement for fees for services paid to attorneys in what will be referred to later as the first federal court action. In addition, four of the Petitioners ask for reimbursement of expenses totaling $263.44.
Petitioners ask that this Court grant an injunction directing Respondents to execute checks in payment of these bills and that the Court declare that the Respondents did not comply with the requirements of Section 501(a) in the manner stated above.
In their answer Respondents allege in part that the Court lacks jurisdiction over the subject matter of the action.
2
The remainder of their answer essentially denies the Petitioners’ allegations.
FINDINGS OF FACT
1. The Petitioners are members of Local No. 386 of the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO. Petitioner Burns is the vice president of the Local. Petitioners Everetts and Thomay are trustees. Petitioner Hallberg is a member of the Executive Board.
2. Respondents are respectively president and treasurer of the Local Union.
3. The Local Union has approximately 2,200 members. Seven members constitute a quorum for meetings. The International Constitution and the Local ByLaws require that all bills must be approved first by the trustees and then by the membership of the Local Union before payment. Respondents have the duty, as president and treasurer of the Local, to sign checks in payment of bills thus approved. They have refused to sign checks so approved which were to be paid, to some of the Petitioners as re
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imbursement for expenses and attorneys’ fees incurred by them in setting aside certain decisions of the Local Union Trial Board.
4. Prior to May 16, 1960, there were strong differences of opinion within the Local concerning wage negotiations which were being conducted by various incumbent officers. Petitioners and other union members held various meetings at their homes for the purpose of selecting an opposition slate of candidates to run against Respondents and other incumbent Local Union officers.
5. At the nomination meeting of May 16, 1960, before Petitioners had nominated their opposition candidates, the incumbent business agent of the Local, Carlson, preferred charges against twelve union members (most of them were opposition candidates), including six Petitioners herein, alleging violations of numerous union principles.
6. On June 14, 1960, a special meeting of the Local Union was had for the purpose of determining the reason for and nature of the charges brought against Petitioners and other opposition candidates. At this meeting the charging party, Carlson, the incumbent business agent, with the assistance of the representative of the International Union, Petersdorf, read from an affidavit which accused some of the charged union members of being Communists, and when asked to specify names, replied that all those charged were equally guilty. During this meeting Respondent Johnson unduly interrogated the signers of the petition for the special meeting, and Respondent Jensen twice moved to adjourn the meeting before it had been completed. The business agent was instructed by the membership to withdraw his charges. He refused to do so.
7. Petitioners and other members charged requested the International’s president, in late June, 1960, to take jurisdiction over their trials, stating their belief that they would not receive a fair trial from the Local’s Trial Board, which was composed of incumbent officers and business agents. The International President refused to do so by letter dated July 7, 1960, expressly pointing out to Petitioners that they had a right to appeal any adverse determinations to the International Union.
8. The first series of union trials were had for the charges filed against Petitioners and others in July, 1960. Respondent Johnson, as president of the local union, was chairman of the Trial Board. Four of the five Trial Board members were Johnson, two incumbent assistant business agents, and a Johnson appointee who took the place of a Trial Board member who had also been charged. The first three union members tried were tried in accordance with the trial procedures set forth in the Union Constitution and they were acquitted. Thereafter the Trial Board changed the trial procedures; the accused were denied the right to have another accused union member act either as counsel or as witness and were presumed to be guilty instead of innocent of the charges, all in violation of the Union Constitution. All of the remaining charged union members were then found guilty and were either fined or suspended. Respondent Jensen acted as a witness for the charging party, Carlson, the incumbent business agent, in all trials held after the trial procedures were changed. The Trial Board had secretly met with the charging party, Carlson, before the trials to consider his evidence and had resolved that a constant vigil of the charged union members should be had pending trial. Respondents further admitted in engaging in surveillance of Petitioner Nelson’s house earlier in the year, accompanied by the charging party, Carlson, his two assistant business agents (members of the Trial Board) and others.
9. Petitioners appealed to the International Union for relief from the adverse determinations of the Local Trial Board. Despite the obvious violations by the Trial Board of the trial procedures and rights of Petitioners as set forth in the Union Constitution, the International Union in October, 1960, affirmed the unlawful action of the Local Trial Board.
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10. In December, 1960, Petitioners and others brought an action in this Court (4-60-Civ. 344) charging Respondents and others with violation of sections 101(a) (2) and (5) of the L.M.R.D.A., 29 U.S..C. 411(a) (2) and (5) and sought to set aside the improper disciplinary awards. After the Court had issued a temporary injunction against Respondents therein, when the ease came on for trial on the merits the parties thereto entered into a stipulation, approved and adjudged binding by the Court, whereby the decisions of guilt made by the Trial Board and the penalties imposed thereby were set aside and withdrawn. Petitioners incurred attorneys’ costs of $3,475 in that action and other expenses and costs totaling $262.44 in the first Union trials.
11. On February 6,1961, the membership of the Union approved (by approximately a 32 to 13 vote) the payment of the Petitioners’ attorneys’ fees in the first federal court action. The membership of the Union also approved for payment the bill for the attorneys’ fees of Respondents and other defendants in the first federal court action. The incumbent business agent Carlson announced at this meeting that he opposed the payment of Petitioners’ attorneys’ fees and would bring this approval up for rescission at the next meeting.
12. On February 20, 1961, the membership of the Union, by a vote of 142 to 89, rescinded the action of February 6, 1961, only insofar, however, as Petitioners’ reimbursement for their attorneys’ fees and related expenses were concerned.
13. In May, 1961, new charges were filed by the business agent Carlson against various Petitioners and other members alleging violation of various union principles. The alleged violations pertained to the May, 1960, meetings held by Petitioners in their homes regarding their selection of opposition candidates and to various statements made by Petitioners in their affidavits in the first federal court action. Pursuant to stipulation entered into in the first federal court action, the membership of the Local Union elected a Special Trial Board to hear these charges. Attorneys represented both the charging party and the accused Union members in this second series of union trials, all witnesses were sworn and a court reporter transcribed the testimony. Lester Nelson was the first Petitioner tried in July, 1961. His trial took six nights. After the trial, but before the Special Trial Board had repox-ted its decision to the membership, the x*epresentative of the International Union, Petersdorf, recommended a settlement of all issues to the Special Trial Board on July 25, 1961. This recommendation included a provision that all attorneys’ fees and expenses for both groups were to be paid.
14. On August 7, 1961, this Special Trial Board dismissed the charges against Nelson, reprimanded both gx*oups, and recommended that the attorneys’ fees and expenses for both sides in the two series of union trials and in the first federal court action be paid by the Local Union. The membex*ship of the Local, on August 7, 1961, approved this recommendation.. Respondent Johnson declared 'his disapproval of the Tidal Board recommendation on this occasion.
15. On August 12, 1961, in the absence of Respondent Jensen, the regular treasurex-, Johnson appointed an acting treasurer, Romine, who might be described as being in Johnson’s “camp.” Romine wrote a letter to the General President of the International Union requesting him to investigate the propriety of paying Petitioners’ attorneys’ fees as recommended by the Special Txdal Board. The request was made withoxxt authorization or direction from the membership of the Local Union.
16. On August 18, 1961, the General President of the International replied to Romine and suggested that he hold up payment of Petitioners’ attorneys’ fees until an investigation had been made. The acting treasurer advised Respondent Johxxson of the receipt of this letter.
17. On August 21, 1961, Respondent Johnson attempted to rescind the approval of the membexnhip of the Special Trial Boai'd’s recommendations. The at
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tempted rescission failed. The suggestion of the International President was read. The membership voted not to adopt this suggestion. Johnson then submitted to the membership for approval or disapproval the vouchers of Petitioners, item by item, for their attorneys’ fees and expenses in the first federal court action. The membership approved these expenses, item by item, by a vote of 38 to 16.
18. On September 4,1961, Respondent Johnson wrote the International President and requested an order from the International President that he, Johnson, should not pay these bills. This letter was written after the membership had directed Respondents to pay the bills and was written by Johnson without authorization from the membership.
19. On September 6 and September 13, 1961, the officers of Local 386 met with Respondents and voted 8 to 0, Respondents abstaining, directing Respondents to pay the bills of Petitioners. Respondents refused to do so. Respondent Johnson on both of these occasions sought Petitioners’ agreement to submit their bills to the entire membership by a referendum vote. Petitioners refused to do so on the ground that their bills were lawful, had already been duly approved, and Respondents had the duty under the Constitution and By-Laws to execute checks in payment thereof.
20. Later in September, 1961, Respondent Johnson sought out the same International representative, Petersdorf, who had previously recommended to the Special Trial Board that all attorneys’ fees be paid, and was then advised orally by Petersdorf not to pay Petitioners’ duly approved bills. Respondent Johnson also sought out and was advised orally by an International Vice President not to pay Petitioners’ duly approved bills.
21. On September 18, 1961, Respondent Johnson replied to questions from the Union membership regarding his nonpayment of these bills that he was under orders from the International not to pay these bills.
22. On September 29, 1961, the General President of the International Union, in response to Romine’s and Johnson’s letters, advised by letter Romine, the Respondent Jensen and Respondent Johnson that the investigation of the International had been completed and that “in our opinion” Petitioners’ bills and expenses were “individual indebtedness of these members” and should not be paid by the Local Union. None of the Petitioners were contacted during this “investigation.” The letter said that there was “no objection” to payment of attorneys’ fees for the Union trials.
23. These communications were read to the membership on October 2, 1961. Petersdorf, the representative of the International Union was present at said meeting and stated that if the Respondents did pay the bills they would be acting in violation of the Union Constitution and subject to removal. At this same Union meeting Petitioners’ attorneys served a notification on behalf of Petitioners to the Union officers, pursuant to section 501(b) of the L.M.R.D.A., requesting corrective or remedial action to be taken by the Union officers against Respondents for their refusal to pay the bills, or else Petitioners would themselves commence action. Respondents and Petersdorf told Petitioners to go ahead.
24. This litigation was commenced on October 16, 1961.
25. On November 15, 1961, a month after this litigation began, the General Executive Board (GEB) of the International Union unilaterally, on its own motion, determined that the action of the Local in approving the recommendations of the Trial Board respecting payment of fees and expenses for Petitioners was null and ineffective because the approval was “the subject of an unauthorized recommendation and because [it was] not properly voted upon.” The GEB suggested that the membership of the Local reconsider its authorization of the reimbursement to Petitioners “for the reasons: (1) that it is against the general policy of the Brotherhood to sanction expenditure of local union funds for such purposes
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and, (2) the expenditure of such funds for such purposes might well constitute a violation of Title V of the LandrumGriffin Act.” The GEB further determined that if the Local nevertheless decided to conduct a vote on the question of authorizing the expenditure for such purposes, the Local should take such vote by secret ballot referendum vote of the entire membership by mail. The GEB did not cite any Union constitutional provisions as authority for the above mentioned conclusions.
26. The Local has not taken the sug-' gested referendum vote.
DISCUSSION AND CONCLUSIONS OF LAW
I. PRELIMINARY DECISION AS TO THE INTERPRETATION OF SECTION 501
The instant case involves section 501 of the L.M.R.D.A. This is an important section. It will doubtless play a large role in the L.M.R.D.A. It has been praised on the one hand
3
and denounced on the other.
4
However, it does raise certain problems. This section speaks’ broadly in one breath and narrowly in the next. Union officers are said to occupy “positions of trust.” Volumes have been written on the duties of trustees; the wealth of authority staggers the imagination. The next sentence enumerates certain duties but the list is obviously not complete, for the reader is told to take into account “the special problems and functions of a labor organization.”
5
The duties are thus as broad as human experience in the labor field. Officers are told, inter alia, not to deal adversely with their unions. This latter word is one of apparent simplicity, but its meaning has not been simple of decision in this case, now in its third appearance before this Court alone. Further, section 501(b) provides, upon violation of part (a), that suits may be brought “to recover damages or secure an accounting or other appropriate relief.” The first two forms of relief involve money. Is the “other appropriate relief” limited to pecuniary matters or could broader relief, including an injunction, be had
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thereunder? Doubt is cast upon the question by part of the legislative history and because another part of the Act specifically provides injunctive relief to secure similar rights. See section 102 of the Act, 29 U.S.C.A. § 412 .
A preliminary decision is thus necessary. What role are the Courts to play in deciding cases under § 501 ? One possible answer appears in the case of Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448 , 77 S.Ct. 912 , 1 L.Ed.2d 972 (1956). That now famous decision involved the meaning of section 301(a) of the Taft-Hartley Act of 1947, 61 Stat. 156 , 29 U.S.C.A. § 185 . One line of authority had held that section to be jurisdictional only. Another body of cases had held that it authorized federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements. After an extensive review of the legislative history, the Court took the latter approach, saying 353 U.S. at 456-457 , 77 S.Ct. at 917-918 , 1 L.Ed.2d 972 :
“We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. See Mendelsohn, Enforceability of Arbitration Agreements Under Taft-Hartley Section 301, 66 Yale L.J. 167 . The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. See Board of Commissioners v. United States, 308 U.S. 343, 351 [ 60 S.Ct. 285 , 84 L.Ed. 313 ]. Federal interpretation of the federal law will govern, not state law. Cf. Jerome v. United States, 318 U.S. 101, 104 [ 63 S.Ct. 483 , 87 L.Ed. 640 ]. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy.”
Is this sort of mandate equally applicable to § 501 of the L.M.R.D.A. ? Lincoln Mills is not mentioned in the legislative history, but Senator Javits said, “Once fiduciary responsibility is stated it will soak up all the common law, all the state law, and all the Federal law.” 105 Cong. Rec. 5855 (daily ed. April 23,1959). The legislative history will be more fully discussed later. It will be adequate here to state that the relevant House committee report, Supplementary Report, H.Rep. No. 741, 86th Cong., 1st Sess. 81 (1959), and corresponding remarks on the Senate floor, 105 Cong.Rec. 16415 (daily ed. Sept. 3, 1959) (remarks of Senator Kennedy) are in accord on the instant point: “The general principles stated in the bill are familiar to the courts, both State and Federal, and therefore incorporate a large body of existing law applicable to trustees, and a wide variety of agents.”
All the commentators have simply assumed that methods similar or equal to those outlined in Lincoln Mills will have to be employed to a provision drafted in the manner previously described. Wollett, Fiduciary Problems Under Landrum-Griffin, New York Univ. Thirteenth Annual Conference on Labor 267, 273 (1960); Dugan, Fiduciary Obligations Under the New Act, 48 Georgetown L.J. 277, 298 (1959); Note, The Fiduciary Duty of Union Officers under the L.M.R.D.A.: A Guide to the Interpretation of Section 501: 37 N.Y.U.L.Rev. 486, 489 (1962). It is thus not surprising that the courts have all followed this path. The leading case under Section 501 is Highway Truck Drivers and Helpers Local 107 v. Cohen, 182 F.Supp. 608, 617 (E.D.Pa.1960), aff’d 284 F.2d 162 (3rd Cir.), cert, denied, 365 U.S. 833 , 81 S.Ct. 747 , 5 L.Ed.2d 744 . Speaking of Section 501, the Court there said:
“This section, quoted earlier, attempts to define in the broadest terms possible the duty which the
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new federal law imposes upon a union official. Congress made no attempt to ‘codify’ the law in this area. It appears evident to us that they intended the federal courts to fashion a new federal labor law in this area, in much the same way that the federal courts have fashioned a new substantive law of collective bargaining contracts under § 301(a) of the Taft-Hartley Act, 29 U.S.C.A. § 185 (a). See Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448 , 77 S.Ct. 923 , 1 L.Ed.2d 972 . In undertaking this task the federal courts will necessarily rely heavily upon the common law of the various states. Where that law is lacking or where it in any way conflicts with the policy expressed in our national labor laws, the latter will of course be our guide.
“We turn then to Section 501, not expecting to find a detailed command or prohibition as to the particular act complained of, but rather to find a general guide which, properly developed, will lead us to an answer.”
Most of the above language was quoted with approval in Penuelas v. Moreno, 198 F.Supp. 441, 447 (S.D.Cal.1961). Another court has also concluded that Congress, in enacting the L.M.R.D.A., intended the federal courts to fashion and apply a body of law based upon the policy of our national labor laws. Parks v. International Brotherhood of Elec. Workers, 203 F.Supp. 288, 292 (D.Md.1962), citing authority at n. 10. All of the foregoing indicates that in ascertaining the fiduciary duty imposed by section 501 it will be both necessary and desirable to examine closely the policy and purposes of the L.M.R.D.A. and to rely with confidence on the applicable state decisions.
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II. VIOLATION OF THE DUTY IMPOSED BY THE STATUTE
The Petitioners’ allegations here are essentially that these Respondents have violated their positions of trust by taking a position adverse to their union, e. g., not paying these Petitioners as ordered. There is no question that they have not obeyed their Local; the question is whether they have an excuse. This in turn hinges upon whether the letters from the General President and the General Executive Board can validly be interposed between the Respondents and their Local.
It should first be pointed out that there is strong evidence, and this Court has
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found, that these Respondents made both written and oral attempts to solicit “orders” from the higher levels of the Union to justify their non-execution of the checks. Conceivably, it might be possible to say simply that these facts show that there was no actual fear of reprisal from the General President or the General Executive Board, that their reliance on these letters was not in good faith, and that they have therefore acted adversely in not paying the checks as ordered. The evidence suggests, however, that the higher levels of the Union, once brought into the matter, actually did oppose payment of these attorneys’ fees. See Findings of Fact 20, 23, and 25, supra. It might also be inquired whether there was any basis in the Union Constitution for the unilateral action taken by the GEB— one month after this suit was started.
7
There is also evidence that the Respondents have a strong personal animosity toward these Petitioners. The evidence suggests that the Respondents particularly resent the Petitioners’ successful resort to the federal courts in the first suit. Other factors, however, demand consideration. The other factors are, of course, the letters received by the Respondents from higher levels in the Union. These letters comprise the principal, if not the only, defense of the Respondents in this case.
The letters of the General President can hardly be considered of any great weight. They suggest and advise but do not direct or command. The Respondent Johnson seems to have understood that the letter of August 18, 1961, was not an order because on August 21 he attempted to rescind previous approval of these attorneys’ fees and on September 4 he wrote to the General President requesting an “order.” See Findings of Fact numbers 17 and 18. The letter of September 29 from the General President is also couched in the form of an opinion. Oral communications which the Respondents might have received (after soliciting them) might have been in the form of orders, but it would seem that the only thing which can save the Respondents here is the letter from the GEB on November 15, 1961, containing numerous reasons why the checks should not be paid. These objections by the GEB should be examined in some detail, despite their somewhat unusual manner of announcement to the Local. It might first be recalled that these pronouncements are by the same body which solemnly approved the convictions obtained in the first Union trials, trials in which carefully drawn Union procedure was thrown to the winds and previously innocent Union members were arbitrarily presumed to be guilty. Although the apparent blindness to justice in that case and the readiness to thwart the Local’s wishes in the instant matter seem somewhat inconsistent, it is, of course, not necessary to decide whether that body measured out justice with an uneven
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hand. None of those people are parties to this action. It is the Respondents’ conduct only which is being adjudicated. However, it could be remarked that the GEB, once prodded to action, was not loathe to concoct a potpourri of reasons why these checks should not be issued. The call of duty was heard with indolence there and alacrity here. More important, however, is the possibility that rights conferred by Congress which were denied there were also discouraged here.
The GEB first said that the payments were the “subjects of an unauthorized recommendation.” There can be no doubt that these payments were both suggested by the Trial Board of the Union and approved by the membership at a lawful meeting. Section (6) (a) of the Union Constitution provides, inter alia, that the funds of a local union may be used for such purposes “as may be required to properly transact its business, including * * * the payment of legally authorized bills.” Section 163 appears to give to the local membership the power to determine what obligations the local shall pay. There is not a mention in the Constitution that this type of bill cannot be authorized. There is no question but that these bills
were
authorized. Therefore, this reason is without xnerit.
The GEB next said that these matters were not properly voted on, and were therefore null and ineffective. No specific px'ovision of the Constitution was cited in support of this proposition. Careful scrutiny of that document reveals no indication that this matter could not be handled at a regular meeting. Some matters do require special procedure. For example, before a local can levy an assessment upon the membership to provide funds to relieve distress among member’s totally disabled from earning a living on account of injuries or sickness incurred while working at the trade, all members shall be legally notified that the proposed assessmexxt will be given consideration at the next meeting. Union Constitution, section 161(b). In addition, notice of the nomination meeting and the election meeting must be given by mail sent to ALL members at least five days prior to the nomination meeting. Such notice is to clearly state the date, time, place and purpose of these meetings. Union Constitution, section 170(b). There is no mention of special procedures in other circumstances. The number of members which considered the matters in question here seems to have been the average number of people who attended these meetings. The others perhaps should not have stayed away in such large numbers, but the fact of the matter is that they did. People in all walks of life are less mindful of greater privileges unexercised, e. g., the right to participate in local, state and national elections.
8
The number present was adequate to award attorneys’ fees for the union trials; it seems strange to say — without more — that the same number could not approve fees for the federal action. It is one thixxg for a court to defer to the admitted power of the GEB to
construe
the Union Constitution; it is yet another to idly sanction the
rewriting
of that document. It is one thing for the GEB to make a basic change when peace prevails and passions are calm; it is something else when the rules are changed in the middle of a fierce contest — probably at the request of one faction. Compare Western Airlines v. Sobieski, 191 Cal.App.2d 399 , 12 Cal.Rptr. 719 (1961) (elimination of cumulative voting in middle of stockholder fight held unfair). The same, incidentally, is true of the GEB’s direction to the Local to take any future votes on such attorneys’ fees by secret ballot referendum vote of the entire membership by mail.
The third reason offered by the GEB in its gratuitous letter of November 15, 1961, was that “the expenditure of such funds for such purposes might well Con
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stitute a violation of Title V of the Land-rum-Griffin Act.” This is, of course, ultimately a matter of law for a federal court. It is enough to observe in passing that this contention is without substantial merit.
Finally, the GEB suggested that the Local reconsider voting payment of attorneys’ fees for the first federal suit, saying that it is “against the general policy of the Brotherhood to sanction expenditure of Local Union funds for such purposes.” This statement was not phrased as an order, but the evidence suggests that it was meant and taken that way. The power to declare this policy might be derived from sections 60(b) and 63(a) of the Union Constitution, which are admittedly quite broad.
9
Disregard of GEB decisions can lead to dire consequences under section 71 of the Union Constitution.
10
Although there are certainly limits to the uses to which these broad powers can be put,
11
it can be assumed for argument that the GEB did have this power.
Other provisions of the Constitution deserve examination also. The matter of Union trials is provided for in some detail in sections 259-290, pp. 112-127. At the outset of this part of the Constitution it is provided:
“All charges, trials, appeals, formal hearings and disciplinary action shall be governed by provisions of Sections 259 to 290 inclusive, unless otherwise provided for in this constitution.”
After union trials have been discussed in detail from start to finish, the matter of resorting to the courts is taken up in section 289, p. 126. This section provides in essence that aggrieved union members must fully exhaust their internal administrative remedies before resorting to the courts. This the plaintiffs in the first federal action had clearly done.
12
Thus it is seen that although resort to the courts is expressly adverted to in the Constitution, the GEB explains that it is against the policy of the Brotherhood to sanction the expenditure of local union funds for such purposes. No more having been said, the basis of this policy is not clear. No reason for such policy is mentioned in sections 259-290, the only sections which are to govern such matters. Indeed, the entire thrust of those sections is directed towards fair play and union democracy.
The question, however, cannot be decided within the four corners of the Union Constitution. Extraneous factors are of equal consideration. The question is thus posed: Is the policy expressed by the GEB to be allowed to stand, considering all the peculiar facts and relevant legislation in this case. In considering this question, the distinction between the propriety of that decision and its legality
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should not be overlooked. See Highway Truck Drivers and Helpers Local 107 v. Cohen, 182 F.Supp. 608, 618 (E.D.Pa. 1960), aff’d 284 F.2d 162 (3rd Cir.), cert, denied, 365 U.S. 833 , 81 S.Ct. 747 , 5 L.Ed. 2d 744 .
This case had its origin in an internal union dispute. Such disputes are common and should tip the scales of justice neither one way nor the other. Next came charges and trials, equally commonplace perhaps. Some of the accused were found innocent. At this point emotion doubtless overpowered reason, for the carefully considered constitutional safeguards for union trials were discarded. The accused were presumed guilty at the outset, and, with this boost, those in power achieved their will and the remainder were found guilty. Appeal was available and appeal was made. Appeal was fruitless, however; the results were affirmed. Doubtless outraged at this travesty of justice, the intransigents took their case to the federal court of this district, alleging violations of sections 102(a) (2) and (5) of the L.M.R.D.A., 29 U.S.C.A. §§ 411 (a) (2) and (5). This course proved more fruitful and union trials were provided with more orderly and fair procedures. Doubtless pleased at these beneficial results, the Local adopted the recommendations of the general representative and the Trial Board and awarded these Petitioners their attorneys’ fees for their Court action. Then came the event which has caused three more lawsuits.
13
The Respondents would not execute the checks, pleading the disapproval of a higher authority hastily summoned. First the General President (GP) and then the GEB came to the Respondents’ aid. “Policy” forbade the execution of these checks, despite the fact that the L.M.R.D.A. had been violated in the first union trials.
The case in this posture appears to be one of conflicting policies. Underneath the policy choice of the GEB lie certain cold facts: capricious usage of union members’ rights, inexplicable approval of unfairness by the GEB, vindication in the courts, restitution of attorneys’ fees by the membership of a gratified local, and pronouncement on high that Union “policy” had been thwarted and that the will of the Local should be denied. These facts are erosive of the foundation of the GEB’s policy choice. They call for the consideration of other policies expressed in the L.M.R.D.A. This Act was no hasty judgment — no cursory pronouncement of “policy.” This Act was rather a product of lengthy deliberation, and it deserves commensurate consideration by this Court.
It is not necessary to say that any of the specific provisions of the Act have been transgressed here for purposes of the narrow issue at hand. The ultimate question is, of course, one of “adversity;”' the immediate question is only one of the effect of the letter from the GEB. Policies lie at the heart of the latter issue.. This is not surprising, for as the Supreme Court pointed out in the Lincoln Mills case, supra 353 U.S. at 457 , 77 S.Ct. at 918 , 1 L.Ed.2d 972 , about federal labor law:
“[It] expressly furnishes some substantive law. It points out what the-parties may or may not do in certain situations.
Other problems will lie-in the penumbra of express statutory-mandates. Some will lack express-statutory sanction but will be solved by looking at the policy of the legislation
and fashioning a remedy that will effectuate that policy.” (Emphasis added)
The present question seems to lie in the-“penumbra;” it might be affected by
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the purposes of the L.M.R.D.A. even if not precisely decided by the language. Viewed in this light, the case calls for
&
determination of the broader policies underlying those provisions. The policy choices of the GEB must be then compared with those of the Congress. It will be enough if those policies are irreconcilable.
Construing of statutes has long been ■a familiar part of the judicial function. It is more prevalent in some areas of the law than in others. For example, astute courts in Confliet-of-Laws cases have long employed this procedure. See, e. g., Emery v. Burbank, 163 Mass. 326 , 39 N.E. 1026 , 28 L.R.A. 57 (1895) (per Holmes, J.); see generally Currie and Lieberman, Purchase Money Mortgages and State Lines: A Study in Conflict-of-Laws Methods, 1960 Duke L.J. 1 ; Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 Stan.L.Rev. 205 (1958). An increasing use of the process by state courts in that context has been favorably noted by the Supreme Court, Richards v. United States, 369 U.S. 1, 12 , 82 S.Ct. 585 , 7 L.Ed.2d 492 (1962),
14
and seems sanctioned in this one by the express language in Lincoln Mills.
The technique is familiar. First the statute is closely examined to determine the precise policies which the legislative body meant to express. Second, the fact situation at hand is studied to see whether the forum has a legitimate interest in the application of those policies. If a state court finds that the forum state has a valid interest in the application of its law and policy, it can apply the law of the forum even though another state also might have such an interest. See, e. g., Watson v. Employers Liab. Assur. Corp., Ltd., 348 U.S. 66 , 75 S.Ct. 166 , 99 L.Ed. 74 (1954); Gordon v. Parker, 83 F.Supp. 40 , (D.Mass.1949); Grant v. McAullife, 41 Cal.2d 859 , 264 P.2d 944 , 42 A.L.R.2d 1162 (1953); Emery v. Burbank, 163 Mass. 326 , 39 N.E. 1026 , 28 L.R.A. 57 (1895); Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376 , 82 N.W.2d 365 (1957); Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34 , 211 N.Y. S.2d 133, 172 N.E.2d 526 (1961); Haumschild v. Continental Casualty Co., 7 Wis.2d 130 , 95 N.W.2d 814 (1959); see also cases cited in Richards v, United States, 369 U.S. 1 at fn. 26, 27 , and 31, 82 S.Ct. at 592, 593 , 7 L.Ed.2d 492 (1962); see generally Currie, The Constitution and the Choice of Law: Governmental Interests and the Judicial Function, 26 U. of Chic.L.Rev. 9 (1958). Federal law of course pre-empts conflicting State law. A
fortiori
if Federal policies are applicable, then mere Union policies must give way. The instant litigation is obviously not a Confiict-of-Laws case in the usual sense. There is. however, a possible conflict between federal and union policy. The case also involves a choice of forum, in a manner of speaking. The Respondents here have pleaded that the case is not one for the federal courts; it is urged that the matter be left to the state courts. The authorities cited are thus somewhat helpful in resolving these aspects of the case. Those decisions seem to illustrate the general type of analysis required here. Those courts examined the policy of the relevant legislation in those Conflict-of-Laws cases in somewhat the same manner that Lincoln Mills seems to have dictated for federal labor law cases.
The task at hand first calls for an examination of the findings, purposes and policy expressed by the Congress in Section 2 of the Act, 29 U.S.C.A. § 401 , which provides in part:
"Sec. 2 (a) The Congress finds that, in the public interest, it continues to be the responsibility of the Federal Government to protect employees’ rights to organize, choose their own representatives, bargain collectively, and otherwise engage in concerted activities for their mutual aid or protection; * * * and
*248
that * * *
it is essential that labor organizations, employers, and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations, * *.
(Emphasis supplied).
“(b) The Congress further finds, from recent investigations in the labor and management fields, that
there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct which require further and supplementary legislation that will afford necessary protection of the rights and interests of employees
and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and their officers and representatives. (Emphasis supplied).
“(c) The Congress, therefore, further finds and declares that the enactment of this Act is necessary to eliminate or prevent improper practices on the part of labor organizations, employers, labor relations consultants, and their officers and representatives which distort and defeat the policies of the Labor Management Relations Act, 1947, as amended, and the Railway Labor Act, as amended, * *
A more detailed discussion of the problems encountered is found in Senate Report No. 187, 86th Cong., 1st Sess. 5-7 (1959), accompanying S. 1555, the Kennedy-Ervin Bill. Concern is there expressed over union bureaucratic tendencies, antiquated procedures, abuse of power, and other difficult internal problems. Similar findings appear in House-Committee Report No. 741, accompanying H.R. 8342, the Elliott Bill, which, though not reported out of committee with a majority vote, contained the same fiduciary provision as the Landrum-Griffin Bill. Beneath the legislative history of the L.M.R.D.A. which was compiled in 1959 are the reports of the McClellan Committee, which provided the impetus-, for the L.M.R.D.A. The first report of the committee’s work in 1958 will be discussed in more detail later; it is enough; to say here that that committee was-shocked, as was the nation, at the corruption, greed, and abuse of power found in parts of the American labor movement.. The conclusions of that committee-showed an overwhelming concern for the-preservation of union democracy. See-Interim Report of the Select Committee on Improper Activities in the Labor or Management Field, S.Rep.No.1417, 85th Cong., 2d Sess. 452 (1958). The legislative history is also replete with the outrage and concern felt by those members, of the McClellan Committee after observing the tragic and tyrannical domination which had been achieved over sonjeof the union members in this country. Senator McClellan’s description of the-whole sordid mess will be reported later in the opinion; it is enough to report, here that he was sorely concerned about the conduct of those occupying positions-of trust and power in the American labor movement. There can, in short, be little-doubt that Congress meant to lay its. hands upon irregular internal affairs.. See e. g., 105 Cong.Rec. 5489 (daily ed. April 16, 1959) (remarks of Senator Ervin);
15
45 Va.L.Rev. 203-206 (1959) (remarks of Senator Kennedy); see generally Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819 (1960).
16
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There can in addition be little doubt that this case presents some irregular internal affairs. But there are express as well as implied policies. The L.M.R.D.A., inter alia, encourages and protects freedom of speech in the union hall. Section 101(a) (2).
17
The L.M.R.D.A. encourages and protects proper safeguards for union disciplinary proceedings. Section 101(a) (5).
18
Are the facts in this case such as to bring this letter from the GEB clearly within the scope of this Court’s concern? It is one thing for the forum to be able to apply its law from the standpoint of power. Cf. Emery v. Burbank, 163 Mass. 326 , 39 N.E. 1026 (1895). It is another to definitely feel that the legislative body would wish the statute to be applied in the fact situation before the court. Cf. Bernkrant v. Fowler, 55 Cal. 2d 588 , 12 Cal.Rptr. 266, 269 , 360 P.2d 906, 909 (1961). The question is thus whether the above policies are of sufficient relevance to this case to override 'the policy choice of the GEB. The facts are clear. The Petitioners’ rights to freedom of speech were violated by the first union trials. The Petitioners’ rights to disciplinary proceedings with proper safeguards were violated in the first union trials. The GEB did not correct these wrongs on appeal. The Petitioners had to seek their remedy in the federal courts, incurring large expense. The Local benefited from this expense, and it voted to reimburse Petitioners for this expense. The GEB then said this reimbursement was contrary to Union policy.
19
What will be the result if this policy pronouncement of the GEB is allowed to stand? It seems patently clear that these Petitioners — and perhaps others like them — -will be slow to assert in the future these rights conferred upon them by Congress. These are important rights with which the GEB is tampering. One writer has described them well. Cox, Law and National Labor Policy 95 (1960):
“Union practices pertaining to the admission and expulsion of members
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are the threshold to democracy in the government of labor organizations.
An employee in a bargaining unit who is unfairly excluded from the union which represents the unit or who is unjustly expelled from membership has no .opportunity to participate in fixing the terms and conditions of his employment. He is bound by the action of an organization in whose councils he has no voice. In his case it is a fraud to call collective bargaining an instrument of industrial democracy.
Expulsion may be used as a method of suppressing criticism or destroying political opposition.”
(Emphasis supplied.)
These latter words seem prophetic indeed, for suspension was used for these exact purposes in this case.
The importance of the rights involved here can be further illustrated by examining the outspoken support given these rights by some of the state courts. A number of prominent legal scholars have been saying that most of the state courts have been protecting these rights by the application of property, contract, and tort concepts to the cases which have come before them. See e. g., Chafee, The Internal Affairs of Associations not for Profit, 43 Harv.L.Rev. 993 (1930); Cox, The Role of Law in Union Democracy, 72 Harv.L.Rev. 609 (1959); Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049 (1951). Perhaps the first state court decision to fully recognize the valuable right of freedom of speech within the Union was Crossen v. Duffy, 90 Ohio App. 252 , 103 N.E.2d 769 (1951). The Crossen case involved a bitter intra-union controversy, just as this one does. The only real difference in the basic facts of the two cases is that the dissidents there were attempting to unseat the national officers and here the local officers were under attack. In that case the first assault came in 1947. The attack failed and the incumbents were reelected. After the election, however, steps were taken by the national officers of the N.B.O.P. (the Potters’ Union) to deal with future attempts to unseat them. A resolution was passed at the 1947 National Convention, 103 N.E.2d at 771 , which was subsequently put into the Union Constitution, after being modified “by the National Secretary without the authority of á convention of the Brotherhood, or a referendum of the members * * 103 N.E.2d at 772 . That section provided as follows:
“Any member of the N. B. of O. P. who is 'not a citizen of the United States or Canada shall not be eligible-to hold any national office. Any members contesting for national office shall conduct themselves in a proper manner. False accusations or misrepresentations, untruths, or use of degrading literature shall be-brought to the attention of the delegates in Convention following the National election. Any candidate convicted by a majority vote of delegates in Convention, of enumerated practices may be reprimanded, fined, suspended or expelled after due and proper hearing. If the offending member candidate is not a delegate, the Convention shall by a majority vote elect a body of five members as a special court to hear the case, with power to fine, reprimand, suspend or expelí.”
At the 1949 National Convention the battle was renewed. A circular called the “Green Sheet” was drawn up to oppose the incumbent administration and espouse the candidacy of others. The pertinent portions of this handbill are as follows, 103 N.E.2d at 774 :
“Election N. B. O. P. Officers First Meeting in May
“VOTE
“We believe the present administration should be changed
_because of its_
“1. Reluctance to Accept Laws and Courts of U.S.A.
“2.
Illegal Salary Increases.
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■“3. Arbitrary Disregard of Wishes and Opinions of Locals and Members.
“4. Unfair Election Tactics.
■“5. Use of Potters Herald for Personal Propaganda Agency and to Impugn Motives and Attack Members.
“6. Inefficiency in Office.
“7. Denial of Help to W. Va. Federation of Labor in Efforts to Increase Silicosis Benefits.
“8. Duffy’s Open Shop Attitude. “RESTORE DEMOCRACY IN N. B.
0. P.”
The opposition candidates were unsuccessful and were rewarded for their efforts with union trials and subsequent punishment. 103 N.E.2d at 772 . The Crossen case did not involve
any
of the candidates; the plaintiffs were merely union members who had been charged, tried, and convicted of either publishing or circulating “improper campaign literature.” 103 N.E.2d at 775 . The “improper campaign literature” was the handbill previously quoted. The only evidence presented against three of the plaintiffs at the union trials was that they had signed the “Green Sheet” and ordered distribution of it. None of these three men were present at the National Convention in 1949. 103 N.E.2d at 776 . The other two plaintiffs neither signed the “Green Sheet” nor were present at the National Convention, but were convicted on testimony that both had helped to circulate the “Green Sheet” and possibly other literature as well. 103 N.E.2d at 777 .
The Ohio trial court held that the Union trials were void and enjoined the defendants from collecting the fines. This decision was affirmed on appeal. The Court first said, 103 N.E.2d at 777 :
“We do not find that any of these charges fall within the classification of libel. It seems to us rather that the charges complained of fall within the scope of free, if not fair, criticism and the free speech guaranteed by the United States Constitution and the Constitution of Ohio. * * *
“In reaching our decision, we recognize that the National Brotherhood of Operative Potters is a strong union, a democratic union. Its record for successful leadership in the industrial field has been outstanding. A strong organization presupposes strong leadership. Such leadership calls forth strong adherents and often strong critics and lively contests, not to be found, because not tolerated, in a totalitarian climate.
In our political democracy and in our economic achievements a measure of our strength in this country has been our ability to permit, and benefit by, criticism and the competition which nurtures that strength.
(Emphasis added.)
“The important and apparently original legal question squarely presented in this case is whether a rule adopted by a mutual benefit association of the character of a labor union may infringe upon and take away fundamental liberties otherwise granted by the Constitution of the United States and the Ohio Constitution. It is quite true that by joining a mutual benefit association an individual consents to be bound as a member by rules and regulations not affecting non-members. How far may a mutual benefit association go in restricting the freedom of members?”
The Court there noted that the Potters Union was subject to the Ohio and United States Constitutions. The Court then adverted to some procedural defects in the Union trials and the vagueness of the previously quoted Union constitutional provision, concluding at 103 N.E. 2d at 778 -779:
“We are loathe to say, in view of the provisions of the Constitution of the United States and of the state of Ohio, guaranteeing free speech, that we should construe this indefinite language as intending to deprive members of the union of the right
*252
of free and fair criticism, otherwise theirs, although the 1949 Convention appears thus to have construed it and to have punished plaintiffs on that basis. Examination of the facts before us impels us to hold that a member of a mutual benefit association continues to be a citizen of the United States, and
the free speech guaranteed by the United States Constitution permits him freedom in criticizing his union officials, as well as his public officials generally, subject always to the limitations imposed by the laws of slander and libel.
64 Harvard Law Review 1071. In so declaring, we recognize that it is not generally the function of courts to control the policies or the internal affairs of labor unions, but the courts may and should protect the democratic processes within unions by which union policies and their leaders are determined. Upon this point, see the illuminating article entitled ‘Legal Limitations on Union Discipline’ by Clyde W. Summers, 64 Harvard Law Review 1049, at page 1073 and also, the article by Joseph Kovner entitled ‘The Legal Protection of Civil Liberties Within Unions,’ (1948) Wisconsin Law Review, at page 18.
“Particularly important seems to us the recognition that labor unions constitute a special type of mutual benefit association, standing in special relation to their members and to the state. Membership has become a frequent condition of employment, even as the right of every man to work has become increasingly recognized as one of the most valued rights of a free society. Viewing the important, role of labor unions in this era, a court may well determine in a particular case that protection of their democratic processes is essential to the maintenance of our democratic government. * * *
“We hold that the action of the 1949 Convention in fining plaintiffs because of publication or distribution of the handbills constituted an infringement of the right of free speech possessed by plaintiffs, calling for exercise, under the peculiar circumstances of this case, of the equity powers of this Court to protect the plaintiffs in their property rights and in their calling.” (Emphasis supplied.)
In short, unions are vastly different from other types of voluntary mutual benefit associations. Freedom of speech within the union is a valuable right which will be zealously guarded by the courts, and vague constitutional provisions engineered by those in positions of trust will not be allowed to hamper the democratic process within the union.
The New York Courts have perhaps been responsible for deciding over one-half of the State decisions involving union discipline. Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175 , 177 (1960). The New York case of Madden v. Atkins, 4 N.Y.2d 283 , 174 N.Y.S.2d 633 , 151 N.E.2d 73 (1958), involved a dispute within a local union very similar to the one in this case, and so it will not be described in detail here. In invalidating the expulsion of some of the minority members the New York Court of Appeals said, 174 N.Y.S.2d at 640 , 151 N.E.2d at 78 :
“If there be any public policy touching the government of labor unions, and there can be no doubt that there is, it is that traditionally democratic means of improving their union may be freely availed of by members without fear of harm or penalty. And this necessarily includes the right to criticize current union leadership and, within the union, to oppose such leadership and its policies. See Polin v. Kaplan, 257 N.Y. 277, 284 , 177 N.E. 833, 835 , supra. The price of free expression and of political opposition within a union cannot be the risk of expulsion or other disciplinary action. In the final analysis, a labor union profits, as does any democratic body, more by pertaining free expression and free
*253
political oppostion than it may ever lose from any disunity that it may thus evidence.”
The New York Court cited neither Crossen v. Duffy, supra, nor the work of Professor Summers of the Yale Law School, upon which the Ohio Court relied heavily, but did lean strongly on Polin v. Kaplan, 257 N.Y. 277 , 177 N.E. 833 , which is described infra at footnote 24.
Another State court has since joined the ranks of the outspoken. In Mitchell v. International Ass’n of Machinists, 196 Cal.App.2d 796 , 16 Cal.Rptr. 813 (1961), petition for hearing denied, No. 24913 Cal.Sup.Ct. (1962), the trial court had sustained the right of a union to expel certain members who publicly worked for and advocated “right-to-work” laws in contravention of the expressed official policy of the union.
20
Although the members thus expelled had not lost their jobs as a result, the District Court of Appeal reversed the decision below. The Court of Appeal began by first dispelling the illusion “that unions are purely voluntary organizations like Republicans, Democrats, Elks, and church groups,” 16 Cal.Rptr. at 814 , relying on the work of Professor Summers and saying, “It is this omnipotent analogy that leads the courts astray.” The court then went on to advert to the many detriments which would accrue to the expelled member, saying, “ * * * [I]t cannot be assumed that the only value in membership is job retention.” 16 Cal.Rptr. at 815 . Coming to the crucial question of whether the union would be permitted, under the facts present there, to penalize a member for engaging in political activity which the union opposed, the court listed five considerations which governed the question. 16 Cal.Rptr. at 817 . Speaking of the importance to the community of the individual’s untrammeled right to express himself on political questions, the court said, 16 Cal.Rptr. at 818 :
“* * * [F]ew subjects in the history of western civilization have drawn such a unanimity of support. In a dissenting opinion Mr. Justice Brandéis observed, ‘The right of a citizen of the United States to take part, for his own or the country’s benefit, in the making of federal laws and in the conduct of the government, necessarily includes the right to speak or write about them; * Full and free exercise of this right * * * is ordinarily also his duty; for its exercise is more important to the nation than it is to himself,' Gilbert v. State of Minnesota, 254 U.S. 325, 337-338 , 41 S.Ct. 125, 129 , 65 L.Ed. 287 . In Sweezy v. State of New Hampshire, 354 U.S. 234, 250-251 , 77 S.Ct. 1203, 1212 , 1 L.Ed. 2d 1311 , it was said, ‘Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. * * * History has amply proved the virtue of political activity by minority, dissident groups, who innumerable-times have been in the vanguard of democratic thought and whose-programs were ultimately accepted. * * * The absence of such voices-would be a symptom of grave illness-in our society.’ Further quotation is unnecessary.
Suffice it to say that the unlimited freedom to express political views is the very heart of a democratic body, pumping the lifeblood of ideas without which our system could not survive.
“ * * * [Ejxpulsion cannot serve to quiet the individual. It can only serve to intimidate those who remain.” (Emphasis added.)
The Court there concluded that it was clear that, at least where the political activity of the member was not patently in conflict with the union’s best interests, the union should not be permitted to use its power over the individual to curb the advocacy of his political views. 16 Cal.Rptr. at 819-820 .
The previously quoted statements by Professor Cox and the three state courts
*254
are all of poignant significance here. In early 1960 the various factions in Local 386 were in strong dispute over wage negotiations. See Finding of Fact No. 4. It is understandable that these Petitioners were concerned about their daily bread. Who is not? The point is not whether they were right or wrong from an economic point of view. The point is that the rights of these Petitioners to dissent, to hold meetings in their private homes to discuss their views, to organize a slate of candidates in opposition to the incumbent officers, and to argue vigorously for their views without fear of reprisal are rights of the highest order.
21
Even if the writers and the ■state courts did not think so, the judgment of the Congress stands as an unequivocal testimonial to the value of freedoms which this Court is charged with protecting. As the Senate Report said, “It needs no argument to demonstrate the importance of free and democratic union elections.” S.Rep. No. 187, '86th Cong., 1st Sess. 20 (1959).
The precise problem presented by this ■case seems pinpointed by Summers, Union Powers and Workers’ Rights, 49 Mich.L.Rev. 805, 820 (1951), where the ■author said:
“The rights which a worker should have in the union which acts as his economic government are essentially the rights of a citizen in a democratic state. * * * Most important is the right to participate fully and freely in making the laws under which he lives.
If this right of an individual worker within his union is not protected, then collective bargaining has not brought him freedom but an additional master.”
(Emphasis added.)
These words are of vital significance here. Their importance is illustrated by examining the position in which these Petitioners now stand. The GEB has sown doubts in their minds — and perhaps the minds of others — as to the strength of their supposed Federal rights. Their quandary is a dire one: They looked in vain to the GEB for redress of their wrongs and now that same body has told them that Local reimbursement for resort to the courts is contra to Union policy. This will not do. Congress has not only grown weary of this sort of thing; Congress has been outraged by abuses of power held by those unconcerned with the fiduciary responsibilities imposed upon them. Congress has completely lost faith in benevolent dictatorships. To paraphrase Professor Cox, Congress has decided that it is not enough to put our trust in self-restraint.
22
Congress has taken steps to secure the rights of the union member and these rights cannot be impaired, even if the method is subtle and the injury is slight. Congress passed the L.M. R.D.A. to eliminate, inter alia, tyranny by union officials and disregard of the rights of individual union members. There has perhaps been little outright tyranny here, but tyranny would soon be possible if insidious policy declarations such as presented here were allowed to
*255
stand. These Petitioners would certainly feel that the power emanating from Lafayette, Indiana,
23
was superior to the power in Washington, D. C. There is no need to ponder whether more harassment and coercion
would
follow here; it is enough that these Petitioners and others like them would have less will to resist in the future if this policy declaration was allowed to stand. If it be suggested that the protection accorded reaches too far, it can be replied that prior decisions might well have gone further under the guise of conventional rationales. See Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175 , 181-84, 192-96, 198-200 (I960).
24
In any event, these are important rights; it is proper to take alarm at the first indication that they are being infringed. Cf. Engel v. Vitale, 370 U.S. 421, 436 , 82 S.Ct. 1261 , 8 L.Ed.2d 601 (1962).
At the risk of oversimplification the question might now be rephrased: Can the national governing body of a union discourage resort to the federal courts when internal redress for patent federal wrongs has proven futile in the past? The answer is no. The reason is that otherwise federal rights would be frustrated. That is the crux of the narrow issue at hand; that is why the letter of November 15, 1961, must be struck down. The GEB and Congress have moved in opposite directions — the latter to secure certain rights and the former to frustrate them. These conflicting policy choices cannot stand together. This being so, there can be no doubt that the policy carefully expressed by Congress is superior to the wisdom of a handful of Union officials far removed from the actual controversy. Public policy has traditionally been paramount in our legal system. This case certainly does not call for the disregard of that rule.
This letter from the GEB was the only real defense which these Respondents had, and they do not have it anymore. Any oral orders which they might have received from higher officers must share the same fate as the GEB’s policy statement. There is some question here whether these Respondents were actually
*256
relying on these various letters and oral orders, but it can be assumed that after the letter of November 15, 1961, arrived the Respondents actually felt bound by it. It is the Respondents’ role in the entire transaction which is important. This case nominally involves the alleged breach of a fiduciary duty and the nonpayment of attorneys’ fees, but what is really at stake here are the rights which were jeopardized by the union trials of July, 1960. These Respondents were involved in meting out unfair treatment to these Petitioners in those trials. To allow this policy declaration to stand and the Respondents to prevail would possibly subject these Petitioners to more unfair treatment. In any event, it would tend to seriously undermine Title I of the L.M.R.D.A. Without regard to whether the conduct of the Respondents in the first union trials was a breach of their fiduciary obligation, it seems clear that that obligation has been breached since then. These Respondents may not have requested this particular letter, but they were in communication with the General President and the GEB. Both the General President and the GEB seem to have been responsive to these Respondents’ pleas. However, there is no need to ponder whether the GEB favored one side or the other. The letter of November 15, 1961, may well have been sent in good faith; it does not matter. The letter must be set aside. Without regard to whether the letters from the General President and the GEB should have been obeyed before this decision, those letters certainly should not have been solicited. Local 386 told these Respondents to execute certain checks. That command should have been obeyed; it has not been obeyed. The Respondents have therefore violated their positions of trust within the meaning of Section 501(a) of the L.M.R.D.A.
This Court feels that the overall thrust •of the L.M.R.D.A. is so strong and the legislative history so clear in support of the proposition that abuses of union power must be stopped, that this case •could be decided without any assistance from other state or federal eases. However, there have been many state court cases in this general area and many able commentaries which fully explain their precise meaning. There have also been several very important federal decisions which this Court feels are significant here in various ways. All of these cases have involved judicial intervention into the internal affairs of labor unions. All of these cases resulted in the courts setting aside various actions which had been taken by the unions. Some of the unions were locals; some were the national governing bodies similar to the GEB in this case. The complexity and detail of some of these cases requires that they be carefuly examined separately.
The previously cited case of Highway Truck Drivers and Helpers Local 107 v. Cohen, 182 F.Supp. 608 (E.D.Pa.1960), aff’d 284 F.2d 162 (3rd Cir.), cert, denied, 365 U.S. 833 , 81 S.Ct. 747 , 5 L.Ed. 2d 744 , is important because it is the first case to expressly construe Section 501 of the L.M.R.D.A. Cohen took two alternative paths to the same result, which was the enjoining of payment with union funds of attorneys’ fees for officers charged with criminal and civil violations of the L.M.R.D.A. The first approach was to view the Union constitution as a contract between the organization and its members and then hold that the payment of attorneys’ fees was an ultra vires act under the circumstances present there. The second approach was to reason that the payment of attorneys’ fees was inconsistent with a policy of the L.M.R.D.A., which had an express purpose of eliminating improper practices. The Cohen case is important here for two reasons.
III. JUDICIAL INTERVENTION IN THE INTERNAL AFFAIRS OF UNIONS
The first significance of the Cohen case lies in its illustration of what might be called the problems of judicial intervention in union affairs. At 182 F.Supp. 618 the Court said, “ * * * the courts have been reluctant to interfere in the
*257
internal affairs of a union. Underwood v. Maloney, D.C.E.D.Pa.1957, 152 F.Supp. 648 .” The Respondents have certainly asked this Court to be reluctant here.
25
The Respondents have argued that the matter should be left to the state courts. In the numerous hearings held in this case the advantages and benefits to be gained from a trial of this matter in the state courts have been extolled in glowing terms. The Respondents’ outspoken desire to get out of this Federal Court has been exceeded only by their articulated zeal to get into the state courts and proceed with the litigation (In fact, this Court was originally persuaded by these and similar arguments.) But without regard to the express terminology employed, the meaning has been clear: The Respondents would be happy if this Court did not step into their Union’s affairs. What is more important is that another District Court has refused to intervene in a somewhat similar case involving Section 501, adverting to the courts’ traditional reluctance to intervene in union affairs.
26
It may very well be that state courts have traditionally been loathe to intrude into the internal affairs of unions.
27
It may very well be that federal courts have been equally reluctant, even since the enactment of the L.M.R.D.A.
28
However, insofar as the quoted statement from the Cohen case suggests that there is something sacrosanct about a union’s internal affairs, it is the belief of this Court that internal affairs of unions should be readily examined when
*258
the purposes of the L.M.R.D.A. require it.
The position of this Court is based on several premises. First, there is some doubt as to just how reluctant the state courts have been to step into the internal affairs of unions. The work of a competent scholar suggests that the state courts may well have been more vigilant with respect to the individual union member’s rights than has generally been supposed. See e. g., Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175 (1960). Indeed, the three state decisions previously quoted in part may well only be articulate examples of what other courts have long been doing under the guise of more conventional rationales.
29
If the courts have been reluctant,
30
it does not necessarily follow that they have not ultimate Iy given relief when they deemed it neces sary.
31
If they have talked about then reluctance, it does not necessarily follow
*259
that they have practiced what they preached.
32
The truth of the matter is that the Court in the Cohen case was under no hypnotic spell when it duly recited what Professor Summers calls the “litany of reluctance ”
33
to interfere in union internal affairs. After the solemn incantation of the ritualistic words the Court there moved with considerable ease into the middle of that union’s internal affairs.
34
What was said must be compared with what was done. It is also worth noting that no higher court took issue with what was done. Highway Truck Drivers and Helpers Local 107 v. Cohen, 182 F.Supp. 608 (E.D.Pa.1960), aff’d 284 F.2d 162 (3rd Cir.), cert, denied 365 U.S. 833 , 81 S.Ct. 747 , 7 L.Ed.2d 744 . However, it has been argued that it might be more accurate — and less dangerous
35
—to say simply that courts carefully study all the facts and weigh a variety of factors before intervening in the internal affairs of unions. See Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175 , 223-24 (1960).
Second, there is a vast difference, as has already been pointed out by the Ohio and California courts, in labor unions and “purely voluntary organizations like Republicans, Democrats, Elks, and church groups.” Mitchell v. International Ass’n of Machinists, 196 Cal.App.2d 796 , 16 Cal.Rptr. 813, 814 (1961), petition for hearing denied, No. 24913, Cal.Sup.Ct.
*260
(1962). This difference in a union and other voluntary associations has been commented upon in Summers, Union Democracy and Union Discipline, N.Y.U. 5th Annual Conf. on Labor 443, 459-460 (1952), where it was said:
“A union, however, is not a voluntary association. A worker does not have a free choice whether he shall come within its power, nor can he readily escape its reach. The union as bargaining agent represents all employees in the unit, whether they are members or not. It helps determine for each and every one his hours, his wages, his seniority, his vacation and his retirement. A worker does not voluntarily submit himself to its control, but is bound by its decision regardless of his choice. His only escape is to quit his job and seek work elsewhere— and be governed by another union! Unions are not only involuntary associations but obtain a substantial measure of their compulsory jurisdiction over individuals from the law itself. Labor relations acts, both federal and state, compel the employer to give the union exclusive bargaining rights, and the individual is legally barred from asserting his independence.”
These reasons persuaded the California court to protect the freedom of the union members in the Mitchell case supra, and these same considerations among others may well have the underlying reasons for the protection which the commentators assert has actually been given in most of the state decisions. It is likely that these factors will persuade other state courts in the future to give overt or covert protection to the union member’s rights.
The third reason for this Court’s position is that Congress obviously was not content with the protection that was being given and they did not wish to wait for the state courts to become enlightened by one means or another. Senator Kennedy was not in favor of inserting a bill of rights for the union member into the labor reform statute being contemplated. The Kennedy-Ervin bill, S. 1555, 86th Cong., 1st Sess. (1959), did not contain any such measure. Senator Kennedy was adamant in his position that the union member was being accorded adequate protection in union tribunals and in the courts. When Senator Carroll asked him whether he was referring to the State courts, Senator Kennedy replied, 105 Cong.Rec. 5821 (daily ed. April 22, 1959):
“Yes, State courts. I quote Prof. Clyde W. Summers, of the Yale Law School, probably the outstanding authority in the country on union discipline. In an article published in the Harvard Law Review for May 1, 1951, Professor Summers said:
“The courts have reciprocated by looking with a jaundiced eye upon 'all discipline which restricts the member’s freedom to use the judicial process and, in these flagrant cases, have freely protected the individual member from discipline. Even in more doubtful cases in which members have sought to enjoin the levying of assessments or the calling of strikes on the claim that the union action was unconstitutional or illegal, the courts have given full protection.
“Professor Summers then cites numerous cases in which the civil courts have protected political activities outside unions, political activities inside unions, dual unionism and so forth.
“I suggest that any Senator who is concerned about whether there have been voluminous laws and decisions in the States which have the force of precedent should look at the cases which are included in this article, which show the broad protections which are given to union members by State courts for any breach of their right to speak, against being expelled from unions, and against excessive fines.”
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In short, Senator Kennedy told the Congress about what Professer Summers was saying and what the state courts were doing. The reply of Congress was blunt and to the point. It enacted a federal bill of rights for the union member. Congress perhaps did not want the union member to have to read about his rights in the Harvard Law Review. Congress perhaps thought that the United States Code would be more accessible — and more convincing.
36
But if there is doubt about what the Congress was thinking, there is none about what it did. It enacted legislation aimed squarely at the internal aifairs of unions. The Congress was concerned with what the McClellan Committee had uncovered; it felt that there was a relationship between the internal affairs of unions and the over-all welfare of the country. See e. g., H.Rep. No. 741, 86th Cong., 1st Sess. 6-7, 15-16, 77-78 (1959). As it has been pointed out in Summers, The Impact of Landrum-Griffin in State Courts, N.Y.U. 13th Annual Conf. on Labor 333, 334 (1960):
“The first and most elementary premise [of the LMRDA] is that the public has an interest in the internal aifairs of unions. The cherished myth that the way unions conduct their internal affairs is no one’s business but their own has been destroyed; and the label of ‘private association’ no longer serves as a ‘no admittance’ sign to legal intervention. Not only is public filing of financial reports required, but the law affirmatively protects certain rights of membership, regulates elections, imposes qualifications for offices, and guards local autonomy. This premise did not spring fully armed from the mind of McClellan, for the public interest has long-growing roots reaching back at least to the Wagner Act of 1935 which gave unions the statutory authority of exclusive bargaining representatives. Having vested unions with such status, the public inevitably had an interest in their internal affairs, and the statute now articulately affirms that public interest.”
The final reason for this Court’s position is also found in the LMRDA. The Congress did not merely say it would be very nice if union officials would be a little more careful in the future about the rights of the downtrodden union member. The Congress told the federal courts to protect these rights. As observed in Summers, supra, at 336:
“The third basic premise is that the most appropriate agencies of government to protect these democratic rights are the courts. Enforcement through an administrative agency was explicitly rejected, except for financial reports. The Secretary of Labor has a limited role in trusteeship and election eases, but this is at most the role of a public prosecutor who brings claimed violations before the courts for judicial determination. Critical provisions of the statute, not only in the Bill of Rights, but in the titles dealing with trusteeships, elections, and fiduciary obligations, are stated in broad general terms. On the court is placed the responsibility to give these meaning and to spell out the limitations. This is to be done through the normal judicial process, and the rights enforced by tradi
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tional judicial remedies. The statute thus declares the competence of the courts to develop, apply, and enforce the law concerning the democratic rights of union members. “Whether these premises represent sound policy is not now the question, for the statute is a stubborn fact and these premises are now the law of the land.”
If
the courts have been reluctant to interfere in the internal affairs of unions as well as the above mentioned purely voluntary organizations, it therefore seems clear to this Court that Congress wished to rectify any reluctance that federal courts might have insofar as unions were concerned. As Professor Summers pointed out supra at 350, “The statutory premises undercut the very roots of the courts’ reluctance to intervene.”
IV. FURTHER ELABORATION ON THE FACTORS WHICH AFFECTED JUDICIAL INTERVENTION IN THIS CASE
Returning to the Cohen case it is observed that the Court there first grappled with the problem in terms of whether the action taken was ultra vires. The same terminology could be employed here. On the one hand it could be asserted that the payment by Local 386 of these Petitioners’ attorneys’ fees was an ultra vires act. Indeed the policy statement of the GEB is practically the same thing as a declaration that the action taken was ultra vires. On the other hand, it could be decided that the action taken by the Local was not ultra vires and that the action taken by the GEB was a breach of the contract embodied in the constitution. However, it would seem that the question is whether to allow the GEB — in this case — to exercise the power that it would otherwise have to make such a statement as this. The question here seems to be one of favoring strong control of unions by high officials on the one hand or union democracy on the other. A decision here that the GEB has the unquestioned power at all times to discourage resort to the courts would be supported by the views of those who feel that a labor union should be strictly regimented. This position is discussed in Cox, Law and National Labor Policy 93 (1960), where the author said:
“According to one view, labor unions should be regarded as military organizations for their function is to wage economic warfare with employers who are constantly feeling out chinks in the union’s defenses through which to wound if not to destroy them. As a wartime army can neither brook divided leadership nor tollerate active dissidents, so must a union punish- the troublemakers in order to close ranks against employers and rival organizations.”
The author went on to state that he preferred the view that enlarged and preserved union democracy. Another writer has adverted to the problems inherent in striving for union democracy. Summers, Union Powers and Workers’ Rights, 49 Mich.L.Rev. 805, 817-18 (1951):
“We must recognize that the economic soil from which unions spring has been almost barren of democratic processes. Management’s labor policies have never been democratically controlled. * * * When we demand that unions, which sit across the table from managment, maintain democratic procedures, we are demanding a double standard. We seek flowers where only weeds have grown.
“An obvious obstacle to union democracy is that the union has to maintain itself in a climate which is hostile to its existence and its objectives. * * * The state of siege, the cold war and the strike do not provide a healthy climate for the growth of democratic processes.”
The author there went on to assert that there are more compelling reasons why unions should be democratic. A number of the state courts as well as the Congress
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have outspokenly concurred in this latter view. As the same author has elsewhere stated, Summers, The Impact of Landrum-Griffin in State Courts, N.Y.U. 13th Annual Conf. on Labor 333, 335 (1960):
“The second basic premise of the [LMRDA] is that unions should be democratic. All of the elaborate arguments that union democracy was unnecessary, unworkable, or even unfortunate have been deliberately rejected. Financial integrity is not enough; the decisions as to dues and expenditures must be democratically made. Officers must be more than honest and responsible; they must be chosen by the members in an open election after free debate. Union members are guaranteed equal rights, freedom of speech and assembly, and due process within the union. Although the statute leaves undefined the exact amount of individual right to be protected, and cannot guarantee the full realization of the democratic process, the policy thrust of the statute is clear and strong. The public has an interest in union democracy.”
The same author has developed the above thesis in more detail in Summers, The Public Interest in Union Democracy, 53 NW.U.L.Rev. 610 (1958). A persuasive discussion is concluded in part with the following, supra, at 624-25:
“The union movement has become one of the most significant institutions in our society. It was the product of democratic fervor, born and nurtured for the purpose of bringing into industry a greater measure of personal freedom and personal dignity. Its instrument of industrial democracy was collective bargaining through which workers gained a voice in determining the rules which governed their working lives.
“Unions through collective bargaining exercise an unsurpassed power over the lives of their members. This power is regulatory and compulsory, reinforced by legal protection, recognition and authorization. This power is granted because of the public interest in collective bargaining, but collective bargaining can not survive in full vigor unless it fulfills its purpose of contributing to our democratic way. This-purpose can be fufilled only by democratic unions.”
Enough has been said about the general framework of the statute. It is time to probe more deeply into the work of the McClellan Committee, whose shocking findings were the impetus of the L.M.R.D.A.’s enactment in 1959.
The entire thrust of the first report of the McClellan Committee is in support of the proposition that unions should be democratic. See Interim Report of the Select Committee on Improper Activities in the Labor or Management Field, S. Rep.No.1417, 85th Cong., 2d Sess. (1958). The McClellan Committee undertook an intensive study of the need for labor reform legislation which is described in the foreword to the first interim report. The testimony heard by the committee and discussed in the first report directly involved five unions. The findings in regard to three of these unions seem relevant to the problem presented by this case. The first union which was directly reported upon was the Bakery and Confectionery Workers International Union of America. The president of this union played a starring role in the findings.
37
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The report begins at page 106 of the Interim Report supra and some of the findings beginning at page 128 are as follows:
“7. The committee finds that Cross sanctioned the use of violence to discourage dissents within the union and alleged obstructionists without, including the beating of the 14-year-old son of a bakery owner during a Los Angeles strike. Cross himself was charged by two witnesses with having taken part in the slugging of union critics at the time of the union convention in San Francisco in October 1956. A grand jury, although it took no action in the case, described it as ‘rampant with perjury,’ and the district attorney flatly proclaimed his disbelief of Cross’ denial that he was present at the time of the beatings.
“8. The committee finds that at this same convention Cross railroaded through changes in the union constitution which destroyed any vestigial pretenses of union democracy. Among the powers which he thus arrogated to himself were the right not only to select but to remove international representatives, who constituted 75 percent of the union’s executive board; the sole right to approve banks in which union money was to be deposited; the sole authority to direct the seeretary-treasurer to prepare cheeks. Cross also arranged that his own salary and that of his secretary-treasurer, previously set by the convention, should now be set by the executive board, three-quarters of whose salaries he himself fixed; and in an orgy of mutual admiration immediately after the convention these lackey lieutenants voted him a salary raise from $17,500 to $30,000, and Cross shortly returned the favor by raising their salaries.
“9. The committee finds that other actions and statements by Cross at the convention nakedly exposed an authoritarian philosophy abhorrent to legitimate American unionism. Under his callous direction use of the secret ballot to elect international officers was abandoned, thus further intimidating possible dissentters; the use of parliamentary procedure at the convention was jettisoned after a haughty pronouncement by Cross that it was not made for bakers and confectioners; financial reports, once given to the membership in full every 3 months, were henceforth to be given to them in summary every 6 months.”
The report indicates that the president of this union personally demolished union democracy at the national level and insured its demise at the local level by the use of tyrannical trusteeship.
38
The
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AFL-CIO did not stand idly by while all this was going on,
39
but its sanctions undoubtedly were of little solace to the beleaguered individual within the union.
The second group of findings which seem relevant to the problem in this case are those concerning the International Union of Operating Engineers; which are in part as follows, Interim Report, op. cit. supra at 437:
“In the American labor movement the International Union of Operating Engineers stands out as an ugly example of ruthless domination of working men and women through violence, intimidation and other dictatorial practices.
“The hearings of this committee concerning the activities of the operating engineers union clearly demonstrated the lack of democratic procedures within that union and exposed to public view the ruthless ends to which the union’s leadership will go to stifle any semblance of democratic action.
“The hearings revealed, in the committee’s opihion, these salient facts:
“1. Democracy within this vital union is virtually nonexistent. Through an international constitution designed to give the membership as little voice as possible, only 46 percent of the union’s 280,000 members are even allowed to vote for their own officers. Where elections are held, union leaders have shamefully deprived their members of their democratic rights through the indiscriminate stuffing of ballot boxes and rigging of elections.
“2. Trusteeships have been imposed — for no apparent reason — as a means of continuing domination over the affairs of a number of locals of the International Union of Operating Engineers. The locals under trusteeship have been looted and their members deprived of their rights. Two locals in Chicago, 111., have been under trusteeship for 29 years.
“3. There has been extensive collusion between union officials and management which has resulted in the emergence of a class of ‘favorite contractors’ who, testimony showed, were permitted to pay lower wages and ignore other established contractual arrangements.
“4. Union officials have entered into business arrangements with the very employers with whom they negotiate in what the committee feels are clear conflicts of interest.
“5. Vast amounts of union funds have been misused and diverted to the personal profit of union leaders for their extravagant entertainment and luxury. Interim Report, supra, at 437-38.”
Findings of this sort led the McClellan Committee to conclusions falling into eleven categories, Interim Report, supra, 4-7, some of which were as follows, p. 4:
“The overall conclusions of the committee are as follows:
“(1) There has been a significant lack of democratic procedures in the unions studied.
“(a) Constitutions have been perverted or ignored.
“(b) One-man dictatorships have thrived.
“(c) Through fear, intimidation, and violence, the rank-and-file member has been shorn of a voice
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in his own union affairs, notably in financial matters.
“(d) Use of the secret ballot has been denied in many cases.
“(2) The international unions surveyed by this committee have flagrantly abused their power to place local unions under trusteeship or supervisorship.
“(a) Some trusteeships have been baselessly imposed.
“(b) Some have lasted for as long as 30 years.
“(c) Rank-and-file efforts to throw off such shackles have been ignored, rejected, and sometimes met with violence and intimidation.
“(d) Locals under trusteeship have been plundered by the very officials entrusted with the management of their affairs.
“(e) Locals under trusteeship have been used as pawns in political battles within international unions, often in order to boost the ambitions of particular candidates for high office.”
The McClellan Committee felt that special findings were necessary for the Teamsters Union, and they were in part as follows, Interim Report, supra, 443-450:
“1. Teamster officials have crushed democracy within the union’s ranks. They have rigged elections, hoodwinked and abused their own membership, and lied to them about the conduct of their affairs. They have advanced the cause of union dictatorship and have perverted or ignored their own constitution and bylaws.
“Hoffa, with the help of Einar Mohn and Dave Beck, established through
“Tony Ducks” Corallo and John Dioguardi phony local in New York 'City in order to gain the necessary votes to assure the election of Mr. Hoffa’s candidate, John O’Rourke, as president of joint council 16. Thereafter, votes were cast in the names of individuals listed as officers and delegates who claimed that they not only did not participate in the election but did not even know that they were members of a labor organization.
“At the recent international convention of the teamsters in Miami, Mr. Beck and Mr. Hoffa, with the help of their bevy of lawyers, made a mockery of the international constitution. They showed that they regarded the constitution as a piece of paper to be obeyed or ignored as it might benefit them. In this instance, the decision was to waive the constitution. Without this action, Mr. Hoffa could not have been elected teamster president.
“Delegates from a New York local who participated actively in the convention were not elected until 10 days after the convention was over. The ultimate cynicism of the Miami situation is demonstrated, however, by the colloquy which took place between the committee and a Hoffa supporter from Detroit. He was asked if he was a delegate to the convention and he replied that he was. He was asked when he was elected and he replied that there was to be a membership meeting that night to consider the nominations and election of delegates and he was to be elected at that time.”
The other general conclusions are to the same effect and are printed in the margin.
40
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It seems important to observe that the lack of union democracy and the perversion of the union constitution stand at the head of most of these tragic findings. These investigations seem to have led the McClellan Committee to think that if union democracy could have been preserved, then a lot of the other abuses would never have followed. In the Legislative Recommendations it was said,
“Much that is elicited in the Committee's findings of misconduct by union officials can be substantially improved, in the committee’s view, by a revitalization of the democratic processes of labor unions.”
(Emphasis supplied.) Interim Report, supra, at 452. These conclusions are reinforced by the words of Senator Curtis, a member of the McClellan Committee, who said,, 105 Cong.Rec. 5862 (daily ed. April 23, 1959):
“ . . . During the many months in which I have sat on the select committee I have heard the tales of many offenses — embezzling, racketeering, boycotting, and a long list of other unlawful acts. However, that testimony has not shaken my faith in the honesty and integrity of the working force of America. The men and women who toil are individuals of character and responsibility.
“It is my firm belief that if the real power in a union is vested in the rank and file of its members, that accomplishment alone will eliminate a great portion of all the abuses and misuse of funds and misuse of power and the other offenses which all of us must frown on * *
The thesis that perversion of union democracy lies at the bottom of union corruption seems further buttressed by the words of one who has lived in day-today contact with the Teamsters’ Union, which is allegedly one of America’s most corrupt unions. Mr. Godfrey P. Schmidt was one of the three monitors appointed by the courts for the Teamsters Union. He was also a professor of constitutional law at Fordham University. Mr. Schmidt wrote a letter to Senator Kennedy urging that a bill of rights for the union member be included in the proposed labor reform bill. This letter was made a part of the McClellan hearings and was also read into the Congressional Record by a Senator. Mr. Schmidt wrote in part, 105 Cong.Rec. 5823 (daily ed. April 23, 1959):
“One of the most rampant abuses of power in the labor movement consists in the practice of visiting reprisals upon union members and officials who dare to exercise free
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speech in opposition to the wishes of the programs of powerful labor leaders. The Wagner Act long ago forbade reprisals by employers against workers who indulged in concerted activities. The measures of proof in such cases is a fair preponderance of the evidence. The labor boards have, with great solicitude, pursued employers who malee use of reprisals against workers. The law should forbid the much more ruthless and extensive reprisals by labor leaders against the rank-and-file members and officers. The boards should use the same meticulous solicitude to prevent this type tyranny (which is breeding a dangerous servility in rank-and-file members) as it has used to punish employer tyranny. It is no answer to say (as I think Professor Cox said) that we have criminal laws in our books to prevent and to punish threats and coercion. Such laws are usually inefficacious for the purpose I have in mind; because their measure of proof is proof beyond a reasonable doubt. Threats and coercion have become so commonplace and widespread in the union movement as to suggest Fascist oppression and a faceless way of life for the rank- and-file worker.
You asked me why the Teamster membership have not risen up to oust the criminals from their union and to purge it of corrupt practices.
* * * [Remarks by Senators omitted.]
“Any rank and file member
(who will talk frankly and courageously and who has not been brainwashed by the ceaseless union-leader propaganda)
can give you the answer. He is afraid to protest. He is afraid to stand up and say what is on his mind in a union hall. If he does, he incurs the peril of personal violence, of threats, and of a whole series of pressures ranging from frankly brutal to hypocritically subtle.
He has been given no indication by Congress, the courts, and the law en- . forcement agencies that he has much of a chance to come off successfully if he enter the unequaled struggle against labor leaders. The latter have unlimited expense accounts, large union treasuries which they use as their own facilities, competent and often devious lawyers, paid out of union treasuries, a horde of actual or potential investigators and goon squads to take care of the more recalcitrant cases. . The worker stands alone against and unprotected from the union boss who is often feared more than any company boss. He must depend upon free legal advice given sporadically, or he must pay his own legal bills. The point is that a new unfair labor practice of labor leaders should be defined for the purpose of guaranteeing workers free speech and a bill of rights and freedom from reprisals when their views collide with those of their leaders. Your bill would, I think, be unacceptable and inefficient precisely because it fails to take care of this most important abuse.” (Emphasis supplied.)
The words of Senator Curtis and Godfrey Schmidt are reinforced by those of Senator Hubert Humphrey, who made a stirring speech extolling the good points of the American labor movement.
41
After elaborating on the virtues and achievements of the labor movement, Senator Humphrey turned to the question of
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cleansing the union movement of the corruption that had been uncovered by the McClellan Committee. Senator Humphrey said, in part, 105 Cong.Rec. 16433 (daily ed. Sept. 3, 1959):
“I say to the union members, I know of no law that can protect you from mismanagement. There is only one way to protect democracy in government, in a union, or in any other institution. That means the people had better take care of their business.
“If only 10 percent of union members attend meetings — and that is a good average — we can expect abuse of power. .
“If union members really want unions which will be effective and will protect their interest, they had better get to the union meetings.
ft
Returning to the facts of this case, it seems obvious to this Court that there is no point in these Petitioners or any other union members going to their union meetings if they are going to be met with letters such as the one in this case sent by the GEB on November 15, 1961. These Petitioners have already been
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through one kangaroo, court in this union. That injustice was not corrected by the GEB. This letter of November 15, 1961, suggests to the Petitioners that the GEB is inalterably on the side of the Respondents. Without hearing the case of the Petitioners, the GEB has again assisted the cause of the Respondents. This letter not only deprived the Petitioners of reimbursement for their legal expenses for the first Federal trials; it suggested that if more kangaroo courts were forthcoming, there would be no help from the GEB. This would in turn cause the Petitioners, men of modest means, to have to again seek the aid of the Federal courts. This is the way that freedom of speech in the union hall is snuffed out; this is the way that tyranny begins. As the House committee report said, H.Rep.No.741, 86th Cong., 1st Sess. 6 (1959):
“The power and
control of the affairs of a trade union by leaders who abuse their power and forsake their responsibilities inevitably leads to the elimination of efficient, honest and democratic practices within such union,
and often results in irresponsible actions which are detrimental to the public interest.” (Emphasis supplied.)
It is as important to keep corruption from getting started in a union as it is to dig it out after it is firmly embedded, and it is certainly a lot easier. It therefore seems proper to take alarm at the first indication that freedom of speech in the union hall is being impaired. Cf. Engel v. Vitale, 370 U.S. 421, 436 , 82 S. Ct. 1261 , 8 L.Ed.2d 601 (1962).
For these reasons as well as all of those previously mentioned, this Court feels that the demands of union democracy outweigh, in the circumstances presented here, the autonomy of otherwise independent unions. At least two other courts have expressly considered this same question in similar cases and also cast their votes for union democracy. Parks v. International Bhd. of Elec. Wrkrs., 203 F.Supp. 288, 310 (D.Md. 1962); Mitchell v. International Ass’n of Machinists, 196 Cal.App.2d 796 , 16 Cal.Rptr. 813, 818-820 (1961), petition for hearing denied, No. 24913, Cal.Sup. Ct.(1962). As the court said in Crossen v. Duffy, 90 Ohio App. 252 , 103 N.E.2d 769, 778 (1951) :
“[W]e recognize that it is not generally the function of courts to control the policies' or the internal affairs of labor unions, but the courts may and should protect the democratic processes within unions by which union policies and their leaders are determined.”
The role of this Court is a limited one in this area. As one writer has said, Summers, The Political Liberties of Labor Union Members — A Comment, 33 Tex.L.Rev. 605, 615 (1955):
“[Ljegal intervention should be limited to protecting the democratic processes within the union. The [courts] should keep clear the channels of discussion, criticism, and advocacy so that a minority is free, through the process of peaceful persuasion, to become a majority. [The courts] should not attempt to prescribe the policies which that democratic process should make.”
In this vein, it might be pointed out that the instant case is not one in which this Court is looking to the future and telling independent unions what they may or may not do in situations which have not arisen. This is a case which is cabined by a record of definite events; it faces backward and not forward. This Court is certainly not saying that a union may not validly adopt a policy discouraging resort to the courts. Compare Cox, The Role of Law in Preserving Union Democracy, 72 Harv.L.Rev. 609, 615 (1959). Such policies, however, obviously will not fare well in the courts when internal remedies for patent wrongs have proven futile in the past.
V. THE CHOICE OF RATIONALE
The second importance of the Cohen case lies in the sharp contrast between the two approaches taken by the Court there to arrive at the same
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result. The question is which approach should have been taken here. The court there first utilized the theory of ultra vires and, as previously indicated, that theory could possibly be employed here to reach one result or another. Are the doctrines of contract and ultra vires the best available tools for fashioning relief in this area of the law?
There have certainly been a number of legal scholars who have pointed out that the use of conventional doctrines in a case involving the internal affairs of a union affords considerable opportunity for inarticulated manipulation to reach the desired result. The pioneer work in this field seems to have been produced by the late and distinguished Professor Zachariah Ghafee of the Harvard Law School. Chafee, The Internal Affairs of Associations not for Profit, 43 Harv.L. Rev. 993 (1930). Some in this group have been content to point out that the courts have given more than adequate protection for the rights of the union member, and Professor Archibald Cox of the Harvard Law School is one of these. Cox, The Role of Law in Union Democracy, 72 Harv.L.Rev. 609 (1959). Others in this group have been rather critical of this manner of deciding cases, and Professor Clyde W. Summers is undoubtedly the most vociferous of these.
41a
But the court in the Cohen case is invulnerable to any such criticism for its second and alternative approach to the problem in that case unequivocally rejected conventional doctrines and boldly dealt with the problem in terms and concepts that subsequent travelers along the same path can clearly understand.
The alternative rationale in Cohen was much simpler. 182 F.Supp. at 620-621 . The court concluded that to allow the funds of union members to be used to defend officers accused of pilfering other such funds was inconsistent with the aims and purposes of the L.M.R.D.A., which was enacted to eliminate such improper practices on the part of union officials. In other words, the policy was ascertained, the facts were examined, and a decision was reached that the policy had been frustrated. This Court feels that the continuing controversy in this case compels its resolution by an equally forthright approach, and so it is the latter approach in Cohen which has been followed here. Although this latter approach was given less weight in Cohen, it has been argued to have been the more important of the two grounds for the result. Note, The Fiduciary Duty of Union Officers Under the L.M.R.D.A.: A Guide to the Interpretation of Section 501, 37 N.Y.U.L.Rev. 486, 497 (1962). More important, however, are considerations basic to the statute. The L.M.R. D.A. took a definite step into the regulation of union internal affairs. It expanded the national labor policy into the area of relations between the employees and the labor union. Previously national labor policy had been confined to the labor-management area. See Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 852 (1960). Prior to 1959 there possibly would have been need for caution in the area of law involved in this case. Unlike the Cohen case, the basic problem here is protection from unlawful suspension or expulsion from the union. It has been suggested that the common law in this area is not completely clear.
42
It has been contended that some of the com
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mon law theories available to the wronged union member are without any theoretical basis.
43
It has been said that the “contract” is a fiction.
44
It has been implied that the “property right” is no more than another excuse for judicial intervention.
45
It has been said that some courts have been crafty and some have been bold.
46
It has been argued that such methods have produced uncertainty as to the rights of the union member.
47
But there is no need to tarry and
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quibble over legal history, for Congress in 1959 left no doubt as to the rights of the individual union member.
If
the law relating to expulsion and suspension was not clear before, it is clear now.
If
there was a necessity to resort to fictional doctrines prior to- that time, the need has vanished now.
48
If
there have been some labor union officials who have thought that they could flaunt the rights of the union member with immunity from the courts, they should be thoroughly disabused of the notion. If a policy can be construed from the L.M.R.D.A. and the facts warrant its application, it therefore seems preferable to take this latter approach for the reason that it is the one more likely to achieve the previous purpose. As one writer has argued, “This protection by subterfuge and the unwillingness to protect openly the right of free participation leave dangerous pitfalls in the law.” Summers, Union Powers and Workers Rights, 49 Mich.L.Rev. 805, 828 (1951). This Court sees no reason to leave the slightest doubt in the mind of the autocratic union official that the-will of the Congress is going to be strictly enforced. The second approach in the Cohen case thus seems preferable, and, as previously stated, it is this approach which has been followed here.
VI. PARKS v. INTERNATIONAL BHD. OF ELEC. WRKRS.
The previously cited ease of Parks v. International Bhd. of Elec. Wrkrs., 203 F.Supp. 288 (1962) is another important case. There is little similarity between the facts of that case and those of the Cohen case, but there is some parallel as to the manner in which Parks and Cohen were decided. The Parks case was an action to enjoin the International Union from revoking the charter of the Local and for other relief. All the interrelated facts in that controversy are spread throughout four opinions
49
and so only those deemed by this Court to be of interest here will be mentioned. It seems that the central fact in that case might well have been that the General President of the IBEW had not acted in accordance with the fiduciary standards imposed upon his position of trust. Local 28 certainly might have thought so, if the claims at 203 F.Supp. 290 afford any indication of what that Local was thinking.
50
In addition, Section 501 of the L.M.R.D.A. was specifically adverted to
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by the court at 203 F.Supp. at 295 -296 where Judge Thomsen said:
“The fiduciary responsibilities of officers' dealt with in Title Y of the Act, sec. 501 et seq., 29 U.S.C.A. § 501 et seq., are primarily if not entirely, pecuniary. But the broad declaration in the first sentence of sec. 501(a) — ‘The officers, agents, shop stewards, and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group.’ — emphasizes the nature of the officers’ duty, which is not limited to pecuniary matters.”
Judge Thomsen also concluded a side remark by saying, “But the officers of IBEW must not forget their duty to the individual locals and members.” 203 F.Supp. 300 at fn. 22 . Finally, his key decision at 203 F.Supp. 309 was that the duty owed by the IP and the IEC had been breached. But the initial problem in that case was whether the court had jurisdiction. Local 28 was relying in this regard
only
upon Section 301(a) of Taft-Hartley, 29 U.S.C.A. § 185 (a). This key fact appears in footnote 2 at 203 F.Supp. at 291 and also in footnote 1 at 197 F.Supp. at 101. The court solved the problem with some interesting reasoning appearing at 203 F.Supp. at 291 -292 and also at 197 F.Supp. at 105-106. Included in the rationale was a determination that the union constitution was a contract between Local 28 and the IBEW. This Court has read an unusual number of legal commentaries in dealing with its own problems and can attest, if the scholars are to be believed, that there are probably hundreds of state court decisions in which the contract theory has been employed to invalidate improper expulsion of individual union members from their unions. One of these articles is cited and quoted at 203 F.Supp. 305 . Of course, one reason for the writing of some of these commentaries, particularly in the case of Professor Summers, was to protest vehemently that the “contract” was a total fiction designed to hide the court’s real reasons for intervention. But it is the well-known function of law teachers to offer their thoughts to the profession, and so there is nothing unusual about a little criticism. In addition, it must be recalled that Judge Thomsen had words of guidance from the Supreme Court concerning Section 301(a) of Taft-Hartley:
“The range of judicial inventiveness will be determined by the nature of the problem. * * * [S]tate law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy.” Lincoln Mills, supra, 353 U.S. at 457 , 77 S.Ct. at 918 , 1 L.Ed.2d 972 .
After the court had decided that there were two “unions” and a “contract” in the case — which afforded jurisdiction under Section 301(a) of Taft-Hartley — it ultimately reached the merits. 203 F. Supp. at 296-305 . This Court is not
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going to do injustice to Judge Thomsen s able recitation of those facts by attempting to summarize them in any detail. It is enough to say that there had long been a bitter dispute in Local 28 over wage negotiations, an allegedly unauthorized strike was called, and the International President expelled Local 28 from the IBEW. This was done to punish certain members of Local 28 which the IP did not like. 203 F.Supp. at 304 . This in turn was followed by the establishment of a rival union to ultimately drive Local 28 out of existence. 203 F.Supp. at 305 . In Judge Thomsen’s first opinion, 197 F. Supp. 99 , he refused to intervene in the controversy until the Local had appealed to the International Executive Council, which ultimately proved fruitless. In the second opinion it was argued that an appeal to the International Convention was required by the union constitution before the Local could resort to the courts. Judge Thomsen gave this argument little weight, noting that the Convention would not convene until more than a year after the decision of the International Executive Council. 203 F. Supp. at 294-295 .
Judge Thomsen’s discussion of the legal significance of the facts is also quite long. 203 F.Supp. at 305-312 . He was first met with the argument that the Union Constitution permitted the revocation of Local 28’s charter because the Local had engaged in a strike without the consent of the IP. The plaintiffs conceded that the strike may have been one requiring the approval of the IP but argued that the revocation was illegal and invalid because, 203 F.Supp. at 307 :
“[I]t (a) was rendered without a fair hearing before a properly constituted tribunal, (b) was a breach of the duty owed by the IP to Local 28 and its members, was entered in bad faith for improper reasons, and so was illegal and against public policy, and (c) was an unreasonably severe sanction.”
Judge Thomsen then discussed these points one by one.
He was first concerned about the lack of a fair hearing prior to the expulsion of Local 28 by the IP. He had previously described the expulsion in more detail
51
and had also found that the International President was prejudiced toward a faction in Local 28,
52
and he felt that “the fatal defect in the procedure” was
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not cured by an appeal to the IEC. 203 F.Supp. at 308 .
Judge Thomsen said in part, 203 F.Supp. at 307 :
“It is a settled principle that a member of a union is entitled to a full and fair hearing before he is expelled, whether or not the union constitution specifically so provides. * * * One of the basic requisites of a fair hearing is an unbiased and disinterested tribunal.”
Local 28 had originally argued that this lack of a fair hearing violated Title I of the L.M.R.D.A., but this position was abandoned because of the feeling that those provisions applied only to individuals and not local unions. 197 F.Supp. 101 at fn. 1. In deciding that the lack of a fair hearing was a “fatal defect,” Judge Thomsen seemed to rely on the State court decisions as Lincoln Mills gave him the right to do. He may also have been relying on the spirit, though not the letter, of Title I of the L.M.R.D.A., which Lincoln Mills also gave him the right to do. In any event, the right to a fair hearing before the loss of valuable rights is a well settled principle in our jurisprudence, as Professor Cox pointed out in the quote at 203 F.Supp. 305 .
Judge Thomsen next took up the duty of the IP, to which he had previously adverted several times. He had previously noted that the broad declaration concerning “positions of trust” in the first sentence of Section 501 of the L.M.R.D. A. “emphasizes the nature of the officers’ duty, which is not limited to pecuniary matters.” 203 F.Supp. at 295-296 . He decided that this duty bound the IP to act at all times “in good faith and not maliciously or in violation of the duty he owed to the members of Local 28, as well as to all other members of the IBEW.” 203 F.Supp. at 309 . It is important to note that although Judge Thomsen went on to discuss the public policy factors in the case, he said, 203 F.Supp. 309 -310:
“I adhere to the views expressed in 194 F.Supp. at 500, 501,
but prefer to rest this decision, as I did that one, on other grounds.”
(Emphasis added.)
What grounds was he referring to ? The answer is plain. He considered that the duty imposed in part by Section 501 of the L.M.R.D.A. upon the IP and the IEC had been breached, considering all the circumstances of the case. At 203 F.Supp. 309 , he said:
“The important conclusion is that
the revocation of the charter of Local 28 by the IP under the circumstances of this case was a breach of the duty he and the International owed to Local 28 and its members
under the union constitution, and amounted to a breach of the contract represented by that constitution.” (Einphasis added.)
The talk of contract seems no more than token homage to the jurisdictional basis upon which the case rested.
The discussion of the “public policy” in the case seems to make it very clear that the fiduciary duty imposed on the IP was foremost in the mind of Judge Thomsen. 203 F.Supp. at 309-310 . Judge Thomsen first said:
“The questions of public policy in these eases are difficult. We have here a sharp conflict between two desira

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2253344. Public record. Not legal advice.