Ross v. Hotel Employees

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

9-20-2001

Ross v. Hotel Employees

Precedential or Non-Precedential:

Docket 00-3142

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation

"Ross v. Hotel Employees" (2001). 2001 Decisions. Paper 212.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/212

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed September 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3142

GEORGE A. ROSS,

Appellant

v.

HOTEL EMPLOYEES AND

RESTAURANT EMPLOYEES

INTERNATIONAL UNION;

ROBERT BAKER, Co-Trustee;

CAROL CARLSON, Co-Trustee

Appeal from the Judgment of

the United States District Court

for the Western District of Pennsylvania

Civil Action No. 98-cv-01131

Magistrate Judge: Francis X. Caiazza

Argued: September 14, 2000

Before: ROTH, McKEE and RENDELL, Circuit Judge s

(Opinion filed: September 17, 2001)

THOMAS M. CASTELLO, ESQ.

(Argued)

Plunkett & Cooney, P.C.

3000 USX Tower

600 Grant Street

Pittsburgh, PA 15219

Attorney for Appellant

RICHARD L. STOPER, Jr., ESQ.

(Argued)

SUSAN L. GRAGEL, ESQ.

Rotatori, Gragel & Stoper CO., L.P.A.

1040 Leader Building

526 Superior Avenue, East

Cleveland, Ohio 44114

Attorneys for Appellees

OPINION OF THE COURT

McKEE, Circuit Judge.

We are asked to review the district court's grant of

summary judgment in favor of Hotel Employees and

Restaurant Employees International Union ("HEREIU"), and

Robert Baker and Carol Carlson; and against plaintiff

George Ross. Ross sued under Title III of the Labor

Management Reporting and Disclosure Act of 1959. For the

reasons that follow, we will affirm.

I. Factual and Procedural Background1

George Ross is a member of Local 57, a subordinate labor

organization of HEREIU. Before January 6, 1998, Ross had

been an elected non-salaried member of the Executive

Board of that Local as well as an appointed full time

salaried employee holding the title of business agent.2

On September 5, 1995, the United States entered into a

Consent Decree with HEREIU. The Consent Decree

appointed a federal monitor "for the remedial objective of

relieving HEREIU and Local 57 from the direct or indirect

influence of any organized crime group or the threat of

such an influence." App. At 104. Sometime during the

summer of 1997, the United States Department of Justice

began investigating organized crime's relationship with

_________________________________________________________________

1. The procedural history of this appeal is rather unique as the district

court entered summary judgment after declaring a mistrial.

2. At all times relevant to the issues before us, Ross held an appointed

office.

2

Local 57. Thereafter, the federal monitor brought charges of

corruption involving several officers of Local 57 including

Louis Sanfilippo, President; Nancy Davis, Secretary-

Treasurer; Vince Fera, Recording Secretary; and Louis

Masco, a union member.

At the same time this investigation was proceeding, a

power struggle erupted between Local 57's "power base"

and three of the other officers of the Local: Ross, Nassan

and Brown.3 Ross and Brown were then business agents of

Local 57, and Nassan was a general organizer. According to

Ross, the power struggle progressed to the point that the

Local's Executive Secretary, Nancy Davis,4 asked the

International to assume control of Local 57 by establishing

a trusteeship.

In November of 1997, the federal monitor also requested

that a trusteeship be established based on the charges

brought against the officers of Local 57. Eventually, Robert

Baker was appointed as the first of two Trustees who

assumed control of Local 57.5 On the same day he was

appointed, Baker fired Nassan, Ross and Brown; and

Sanfilippo resigned. However, Nassan, Ross and Brown

were rehired within 24 hours of their firing after

complaining to the monitor.

An election for officers of Local 57 was scheduled for

March 1998, but the Trustees canceled the election, and

suspended the Local's constitution and by-laws. In April of

1998, Ross, Nassan and Brown filed the first of two

lawsuits challenging HEREIU's right to impose a

trusteeship. They named HEREIU and the two Trustees as

defendants (the "Trusteeship case"). The plaintiffs asserted

that, "[g]iven the resignation of Sanfilippo and the failure of

HEREIU or the Trustees to suspend Nancy Ross, it is clear

_________________________________________________________________

3. Inasmuch as we are reviewing a grant of summary judgment against

Ross, we must assume that the allegations of his amended complaint are

true, and draw all inferences which reasonably arise from those

assertions in his favor as the nonmoving party. Woessner v. Air Liquide

Inc., 242 F.3d 469, 471 (3d Cir. 2001).

4. Nancy Davis is also referred to as Nancy Ross in the record, as she is

George Ross' former wife.

5. Carol Carlson was appointed as co-trustee about four weeks later.

3

that the continuation of the Trusteeship is improper and

therefore must be dissolved." Ross' Complaint atP 26 (No.

98-629). The plaintiffs sought declaratory and equitable

relief under Title III of the Labor Management Reporting

and Disclosure Act of 1959 (the "LMRDA") which governs

the creation and maintenance of trusteeships by labor

organizations. See 73 Stat. 519 SS 301-01 (1959), 29 U.S.C.

SS 461-66 (1998 & Supp. 2000) The prayer for relief

included a request that the court dissolve the Trusteeship,

reinstate the constitution and by-laws of Local 57, and

order immediate elections. The plaintiffs also moved for a

TRO to enjoin the Trustees from running Local 57's

operations. That motion was denied. At the end of April,

Nassan and Brown withdrew from the lawsuit, leaving Ross

as the only plaintiff.6

During the summer of 1998, the Trustees decided to hold

new elections and terminate the Trusteeship. They also

issued new election guidelines under which Ross became

ineligible to run for office because his union dues were

delinquent. Ross argues that these guidelines were

specifically intended to remove him as an eligible candidate.7

In addition to the new election guidelines, the Trustees also

"proposed a new Constitution which terminated George

Ross' position as full time salaried business agent." Ross'

Amended Complaint at P 38 (No. 98-629).

In July of 1998, Ross filed a second lawsuit against the

same defendants in state court (the "election case"). Ross

sought a declaration that he was an eligible candidate for

the upcoming election, and an injunction to prevent the

election from proceeding until his eligibility could be

determined. That suit was removed to federal court on

motion of the defendants, and the district court thereafter

refused to enjoin the election. Ross was not permitted to

_________________________________________________________________

6. Ross argues that Nassan "cut a deal" with HEREIU and the Trustees

to dissolve the Trusteeship, and hold elections in exchange for Nassan

withdrawing from the lawsuit and his support of Ross.

7. In support of this argument, he points out that he had been elected

to the Executive Board of Local 57 on three prior occasions even though

his dues were then delinquent. Inasmuch as we are reviewing a grant of

summary judgment, we must accept this argument as true.

4

run for office because of the aforementioned eligibility

restrictions. On the day of the election, Ross, Nassan and

Brown received letters terminating their employment as

business agents. As a result of the election, Nassan was

elected president and principle officer. After the swearing in

of the new officers of the union, the Trusteeship was

dissolved. Ross was not re-appointed as a business agent

by the newly elected officers.

In December of 1998, the defendants filed a motion for

summary judgment in the Trusteeship case. They argued

that Ross' claim for equitable relief had been rendered moot

by the election of new officers and the resulting dissolution

of the Trusteeship. Ross answered arguing that the crux of

the Trusteeship case was that the Trusteeship had been

imposed in bad faith to remove political opposition. He

insisted that all actions carried out pursuant to the

Trusteeship were void. In February of 1999, Ross filed an

amended complaint in the Trusteeship case alleging

continuing harm and asking the district court to:

Void the following actions taken in conjunction with

that Trusteeship:

i. The suspension of the Local By-Laws and

Constitution;

ii. The firing of the Plaintiff, George Ross on

January 6, 1998;

iii. The imposition of the new eligibility

requirements to run for elected office intended to

exclude George Ross as a candidate for the July,

1998 elections;

iv. The firing of George Ross on August 10, 1998.

Ross' Amended Complaint, P 9 (No. 98-629). He also

requested temporary reinstatement, scheduling of new

elections, monetary damages, counsel fees, and costs.

The district court consolidated Ross' two lawsuits and the

matter was scheduled for trial. Essentially, Ross contended

that he was harmed in two respects as a result of the

improper continuation of the Trusteeship. He alleged that

he had suffered damages as a result of being declared

5

ineligible to run for office in the August 1998 elections. He

also alleged damages as a result of the termination of his

appointed position as a business agent. Prior to trial, the

defendants filed a motion in limine seeking to exclude

evidence or argument regarding Ross' purportedly improper

exclusion from the August election. The court denied that

motion but did enter an order precluding Ross from

"seek[ing] any relief which would effect a change in the

union election." Ross v. Hotel Employees and Restaurant

Employees Int'l Union, No. 98-1131, slip. op. at 9 (W.D. Pa.

Oct. 4, 1999).

After both sides rested in the ensuing trial, the jury

reported that it was deadlocked and the court declared a

mistrial. However, before the scheduled retrial was to begin,

the defendants moved for summary judgment on all of

Ross' claims. The defendants argued that Ross was

precluded from asserting an individual claim for monetary

damages under Title III of the LMRDA. Ross opposed the

motion by relying solely on the law of the case doctrine. He

contended that the court had already implicitly decided

that an individual could sue for damages under Title III

because the court sent the damage suit to the jury in the

first trial.

The district court rejected Ross' law of the case argument

stating: "the issue of whether Title III supports Ross's

individual requests for relief has not yet been adjudicated

by the Court." Ross v. Hotel Employees and Restaurant

Employees Int'l Union, No. 98-1131 slip. op. at 12 (W.D. Pa.

Jan. 12, 2000). The court noted that Ross had not asserted

a timeliness challenge, and concluded that it had broad

discretion to entertain the defendants' motion for summary

judgment even though the issues had been submitted to a

jury. Id. at 6 (citing In re Sch. Asbestos Litig., 977 F.2d 764,

794 (3d Cir. 1992)). The court ultimately held that interests

of judicial economy counseled in favor of adjudicating the

summary judgment motion and granted summary

judgment in favor of the defendants and against Ross.

In doing so, the court relied on the text and legislative

history of the LMRDA as well as relevant precedent from

other circuit courts of appeals. The court held that Ross'

claims were all individual in nature and that Title III of the

6

LMRDA does not allow plaintiffs to seek individual relief. Id.

at 12-13, 16-17. Rather, the district court concluded that

Title III was intended to protect local unions, not their

individual members. Id. at 14. The court relied in large part

upon Gesink v. Grand Lodge, International Ass'n of

Machinists and Aerospace Workers, 831 F.2d 214 (10th Cir.

1987), in stating:

the purposes listed in Title III as justifying the creation

of a trusteeship have nothing to do with protecting

union members' or employees' individual rights; rather,

they seek to protect locals from `corruption' or

`financial malpractice' of their agents and to ensure

that such agents comply with their obligations and

`otherwise carry [ ] out the legitimate objects of ' the

union.

Ross, slip. op. at 12. The court concluded that Ross' claim

was not appropriately brought under Title III because each

form of requested relief was intended to compensate him,

not his Local.

Plaintiff 's requests for lost wages, medical insurance

coverage, and other `out of pocket costs' associated

with his termination as business agent, as well as his

request for reinstatement, are asserted on his own

behalf and for his own benefit, not for that of Local 57.

Id. at 16-17. The district court did acknowledge that Ross

sought other equitable relief including a declaration that

the Trusteeship was improperly imposed in bad faith and

the voiding of certain of the Trustee's actions. Id. at 17 n.3.8

_________________________________________________________________

8. The district court also discussed Ross' repeated attempts to invalidate

the August 1998 election despite its previous ruling that Ross was

barred from seeking to effect a change in the election. The district court

reaffirmed its previous ruling that it lacked jurisdiction to entertain

this

part of Ross' claim. Ross v. Hotel Employees and Restaurant Employees

Int'l Union, No. 98-1131 slip. op. at 7-8 (W.D. Pa. Jan. 12, 2000). The

court reasoned that Title IV of the LMRDA vests the Secretary of Labor

with exclusive jurisdiction over an individual union member's post-

election suits regardless of when members first seek relief regarding

elections. See id. at 8-10 (citing Local No. 82, Furniture & Piano Moving,

Furniture Store Drivers, Helpers, Warehousemen & Packers v. Crowley,

467 U.S. 526, 541, 544 (1984)). Post-election relief to invalidate

elections

or seek new elections must first be pursued with the Secretary of Labor.

Id. at 11 n. 2. Therefore, Ross "[was] barred from pursuing claims

requiring an invalidation of the August 1998 election." Id. at 10-11.

7

However, inasmuch as that relief was ancillary to Ross'

primary attempt to redress his individual injuries, Ross'

entire case was dismissed. This appeal followed. 9

II. Jurisdiction and Standard of Review

The district court had jurisdiction pursuant toS 304 of

the LMRDA. 73 Stat. 519 S 304, 29 U.S.C. S 464. We have

jurisdiction from the district court's final order granting

summary judgment under 28 U.S.C. S 1291. We exercise

plenary review. Resolution Trust Corp. v. Fidelity and

Deposit Co. of Maryland, 205 F.3d 615, 626 (3d Cir. 2000).

III. Discussion

Ross' appeal presents two questions for resolution. First,

we must determine if Ross has waived the arguments he

makes now because he did not raise those arguments in

opposition to the defendants' summary judgment motion in

the district court. If we address the merits of his claim we

must decide the very important question of whether Title III

of the LMRDA affords Ross a cause of action under the

circumstances of this case.

A. Waiver

As noted above, Ross' opposition to the defendants'

motion for summary judgment in the district court was

limited to his contention that the law of the case precluded

summary judgment because the merits of his claim had

been submitted to a jury. The district court disagreed with

his position, and that ruling has not been appealed. On

appeal, for the first time, he argues the merits of the

defendants' claim that Title III of the LMRDA does not

provide a cause of action for individual relief.

Generally, "absent compelling circumstances an appellate

court will not consider issues that are raised for the first

time on appeal." Patterson v. Cuyler, 729 F.2d 925, 929 (3d

_________________________________________________________________

9. Ross does not now challenge the district court's denial of his

assertion

that the law of the case precluded entry of summary judgment, or the

district court's refusal to overturn the union's election.

8

Cir. 1984), overruled on other grounds recognized in Carter

v. Rafferty, 826 F.2d 1299 (3d Cir. 1987) (citing Singleton v.

Wulff, 428 U.S. 106, 120-21 (1976)). In Patterson, we

explained:

This prudential policy seeks to insure that litigants

have every opportunity to present their evidence in the

forum designed to resolve factual disputes. By

requiring parties to present all their legal issues to the

district court as well, we preserve the hierarchical

nature of the federal courts and encourage ultimate

settlement before appeal. It also prevents surprise on

appeal and gives the appellate court the benefit of the

legal analysis of the trial court. It is however not a

jurisdictional bar, and the statement of policy permits

exceptions in appropriate cases.

Id. (citations omitted).

The case at bar has important implications for the field

of labor law, and raises a question of first impression in

this circuit. Moreover, the procedural posture also raises

procedural questions that we have not previously

addressed. As noted above, the summary judgment motion

was made after a jury deadlocked and a mistrial was

declared. However, because of that unique procedural

posture, the defendants can hardly claim at this late date

that Ross' assertion of a private cause of action under Title

III is a surprise, or that Ross' position prejudices them.

They have obviously assumed that he had a private cause

of action under Title III throughout the course of this

litigation including trial. Although Ross failed to respond to

the merits of defendants' arguments in the summary

judgment motion, the district court was afforded the rare

advantage of a fully developed record in analyzing the

issues raised by the motion for summary judgment.

Inasmuch as the defendants are not unfairly prejudiced by

the lateness of Ross' arguments, and given the importance

of the issues raised by this grant of summary judgment, we

think it appropriate to resolve this appeal on the merits,

and not upon the procedural grounds that the defendants

argue in the alternative.

Moreover, the district court did not err in considering a

motion for summary judgment after a mistrial. If there are

9

no issues of material fact and a party is entitled to

judgment as a matter of law, judgment may be awarded at

any time, even after trial, under Rule 56 or under Rule 50.

There was no reason to require the court to go through the

procedural calisthenics of a second trial merely because the

motion for judgment was brought after the mistrial.

Accordingly, we will consider the merits of the arguments

before us.

B. Title III of the LMRDA

This dispute arises in the context of a trusteeship that

was imposed pursuant to Title III of the LMRDA. 10 The

_________________________________________________________________

10. Title III of the LMRDA provides in relevant part:

S 302 Purposes for which a trusteeship may be established

Trusteeships shall be established and administered by a labor

organization over a subordinate body only in accordance with the

constitution and bylaws of the organization which has assumed

trusteeship over the subordinate body and for the purpose of correcting

corruption or financial malpractice, assuring the performance of

collective bargaining agreements or other duties of bargaining

representative, restoring democratic procedures, or otherwise carrying

out the legitimate objects of such labor organization.

S 303 Unlawful acts relating to labor organization under

trusteeship

(a) During any period when a subordinate body of a labor organization

is in trusteeship, it shall be unlawful (1) to count the vote of delegates

from such body in any convention or election of officers of the labor

organization unless the delegates have been chosen by secret ballot in

an election in which all the members in good standing of such

subordinate body were eligible to participate . . .

* * *

S 304 Enforcement

(a) Upon the written complaint of any member or subordinate body of

a labor organization alleging that such organization has violated the

provisions of this title (except section 301) the Secretary shall

investigate

the complaint and if the Secretary finds probable cause to believe that

such violation has occurred and has not been remedied he shall, without

disclosing the identity of the complainant, bring a civil action in any

10

LMRDA defines a trusteeship as "any receivership . . . or

other method of supervision or control whereby a labor

organization suspends the autonomy otherwise available to

a subordinate body under its constitution or bylaws." 73

Stat. 519 S 3(h), 29 U.S.C. S 402(h). Title III limits the

establishment of trusteeships as follows:

`Trusteeships shall be established and administered

. . . for the purpose of [1] correcting corruption or

financial malpractice, [2] assuring the performance of

collective bargaining agreements or other duties of a

bargaining representative, [3] restoring democratic

procedures, [4] or otherwise carrying out the legitimate

objects of such labor organization.

73 Stat. 519 S 302, 29 U.S.C. S 462. Specifying proper

purposes protects the local union organization and its

membership as a whole from the misuse of the trusteeship

_________________________________________________________________

district court of the United States having jurisdiction of the labor

organization for such relief (including injunctions) as may be

appropriate. Any member or subordinate body of a labor organization

affected by any violation of this title (except section 301) may bring a

civil action in any district court of the United States having

jurisdiction

of the labor organization for such relief (including injunctions) as may

be

appropriate.

* * *

(c) In any proceeding pursuant to this section a trusteeship established

by a labor organization in conformity with the procedural requirements

of its constitution and bylaws and authorized or ratified after a fair

hearing . . . shall be presumed valid for a period of eighteen months from

the date of its establishment and shall not be subject to attack during

such period except upon clear and convincing proof that the trusteeship

was not established or maintained in good faith for a purpose allowable

under section 302. After the expiration of eighteen months the

trusteeship shall be presumed invalid in any such proceeding and its

discontinuance shall be decreed unless the labor organization shall show

by clear and convincing proof that the continuation of the trusteeship is

necessary for a purpose allowable under section 302. In the latter event

the court may dismiss the complaint or retain jurisdiction of the cause

on such conditions and for such period as it deems appropriate.

73 Stat. 519 SS 301, 302, 303, 304, 29 U.S.C.SS 461, 462, 463, 464.

11

power. Title III provides that a trusteeship is"presumed

valid for a period of eighteen months . . . and shall not be

subject to attack during such period except upon clear and

convincing proof that the trusteeship was not established

or maintained in good faith for a purpose allowable under

section 302." 73 Stat. 519 S 304(c), 29 U.S.C. S 464(c). The

provision also states: "[a]ny member or subordinate body of

a labor organization affected by a violation of this title may

bring a civil action in any district court . . . for such relief

(including injunctions) as may be appropriate." 73 Stat. 519

S 304(a), 29 U.S.C. S 464(a). It is this provision that

provides the proverbial "rub" here, as we must determine if

the individual relief that Ross is seeking is "appropriate"

under Title III.11

Our inquiry is therefore circumscribed by our

interpretation of this statute.

In any case turning on statutory interpretation, our

goal is to ascertain the intent of Congress. To

accomplish this goal, we begin by looking at the

statute's language. If the language is plain, we need

look no further. If the statutory language is ambiguous

or unclear, we may look behind the language to the

legislative history for guidance.

_________________________________________________________________

11. At oral argument, and vaguely in his brief, Ross argued that we

should read the enforcement section of Title III in light of S 401 which

is

the introduction section of the LMRDA and discusses the purposes and

policy of the LMRDA. S 401(b) discusses protecting the rights of

employees and the public in general:

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.

73 Stat. 519 S 2(b), 29 U.S.C. S 401(b). Ross contends that this section's

use of the word "employees" indicates that protecting employees of the

union was the underlying purpose of the LMRDA. For reasons we

discuss below, we disagree.

12

Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 233 (3d

Cir. 1998). The intricate legislative history of the LMRDA

has caused the Supreme Court to note that:

Archibald Cox, who actively participated in shaping

much of the LMRDA, has remarked:

`The legislation contains more than its share of

problems for judicial interpretation because much of

the bill was written on the floor of the Senate or

House of Representatives and because many sections

contain calculated ambiguities or political

compromises essential to secure a majority.

Consequently, in resolving them the courts would be

well advised to seek out the underlying rationale

without placing great emphasis upon close

construction of the words.'

Wirtz, 389 U.S. at 468 n.6 (citing Cox, Internal Affairs of

Labor Unions Under the Labor Reform Act of 1959, 58

Mich. L. Rev. 819, 852 (1960)). Thus the practice of

interpreting ambiguous statutory language in light of its

legislative history is of particular value in the context of the

LMRDA. Although we do not consider the word

"appropriate" an ambiguous term in and of itself, to the

extent that the text of the LMRDA does not adequately

define the term in context, and thereby definitively

establish what remedies are "appropriate" under Title III,

we are compelled to consult the statute's legislative history.

See West Virginia Univ. Hospital, Inc. v. Casey, 499 U.S. 83,

98 (1991) (it is appropriate to resort to legislative history to

determine the meaning of ambiguous legislation). The

legislative history of Title III confirms our analysis.

C. The Legislative History of Title III

In 1957, the Select Committee on Improper Activities in

the Labor Management Field of the United States Senate,

more commonly known as the "McClellan Committee,"

began investigating and gathering findings on the internal

affairs of labor unions. Note, Landrum-Griffin and the

Trusteeship Imbroglio, 71 Yale L.J. 1460, 1473 (1962)

(hereinafter "Note, Trusteeship Imbroglio"). The McClellan

Committee's findings "exposed the details of the sad state of

13

democracy in large sections of the labor movement and

provided numerous examples of the abuses of the

trusteeship power." Sheet Metal Workers' Int'l Ass'n v.

Lynn, 488 U.S. 347, 357 n. 8 (1998) (quoting Note,

Trusteeship Imbroglio at 1473).

The Labor-Management Reporting and Disclosure Act

of 1959 was the product of congressional concern with

widespread abuses of power by union leadership. The

relevant provisions of the Act had a history tracing

back more than two decades in the evolution of the

statutes relating to labor unions. Tensions between

union leaders and the rank-and-file members and

allegations of union wrongdoing led to extended

congressional inquiry. As originally introduced, the

legislation focused on disclosure requirements and the

regulation of union trusteeships and elections.

However, various amendments were adopted, all aimed

at enlarged protection for members of unions

paralleling certain rights guaranteed by the Federal

Constitution; not surprisingly, these amendments--

ultimately enacted as Title I of the Act, 29 U.S.C.

SS 411-415--were introduced under the title of "Bill of

Rights of Members of Labor Organizations." The

amendments placed emphasis on the rights of union

members to freedom of expression without fear of

sanctions by the union, which in many instances could

mean loss of union membership and in turn loss of

livelihood. Such protection was necessary to further

the Act's primary objective of ensuring that unions

would be democratically governed and responsive to

the will of their memberships.

Id. at 352 (citing 105 Cong. Rec. 6471-6472, 6476, 15530

(1959)).

Title III of the LMRDA, the trusteeship title, first emerged

as Title II12 of the Kennedy-Ives Bill passed by the Senate in

_________________________________________________________________

12. A review of the Senate Report no. 187, April 14, 1959 [To accompany

S. 1555] in the Section-By-Section Analysis reveals that Title I was

originally the reporting provision and Title II was the trusteeship

provision. U.S. Code Cong. & Admin. News at 2352 - 2362. Later, Title

I became the Bill of Rights provision, Title II became the reporting

provision and Title III became the trusteeship provision. 73 Stat. 519 S1

et seq., 29 U.S.C. S 401 et seq.

14

June of 1958. Lynn, 488 U.S. at 357 n.8. It appeared again

in January of 1959 in the Kennedy-Ervin Bill. Id.; Note,

Trusteeship Imbroglio at 1475. The Kennedy-Ervin Bill

focused on disclosure and reporting requirements,

trusteeships and elections. U.S. Code Cong. & Admin. News

at 2318-72; Lynn, 488 U.S. at 352. The accompanying

Committee Report to the Kennedy-Ervin Bill reflects the

overarching concern of guaranteeing internal union

democracy while minimizing governmental interference with

the internal affairs of unions. See, e.g., 1959 U.S.C.C.A.N.

at 2322-23; Jerry E. Linde, Title III of the Labor or

Management Relations and Disclosure Act: For Greater

Judicial Protection of Union Democracy and Local Automony,

9 J. Corp. L. 271, 276-80 (1984); Marcia Greenblatt, Union

Officials and the Labor Bill of Rights, 57 Fordham L. Rev.

601, 601-02 (1989). This report acknowledged that

trusteeships had been effective in the past "to insure order

within [labor] organizations." U.S. Code Cong. & Admin.

News at 2333. However, it also acknowledged the McClellan

Committee's findings regarding the misuse of the

trusteeship authority. The Committee Report noted:

in some instances trusteeships have been used as a

means of consolidating the power of corrupt union

officers, plundering and dissipating the resources of

local unions, and preventing the growth of competing

political elements within the organization.

Lynn, 488 U.S. at 357 n. 8 (quoting 1959 U.S.C.C.A.N. at

2333). The Committee Report also explained why then

current law was ineffective:

A trusteeship will ordinarily be set aside unless the

local is given a fair hearing including notice of the

charges and an opportunity to defend. But if the forms

of fair procedure are observed there appears to be little

the courts can do and there are very few cases staying

or upsetting trusteeships upon substantive grounds.

Men have frequently been subjected to fines as large as

$1,000 for bringing suit against a union; others have

been expelled from the membership.

The Committee on Labor and Public Welfare therefore

concurs in the select committee's recommendation that

15

there should be a `limitation on the right of

internationals to place local unions in trusteeship.'

U.S. Code Cong. & Admin. News at 2333.

The Kennedy-Ervin Bill underwent seven months of

rewriting and debate involving several amendments. Note,

Trusteeship Imbroglio, at 1475. A major alteration was the

addition of a "Bill of Rights of Members of Labor

Organizations." Id. The Bill of Rights"was adopted as an

amendment on the Senate floor by `legislators[who] feared

that the [original] bill did not go far enough because it did

not provide general protection to union members who spoke

out against union leadership.' " Lynn, 488 U.S. at 352

(quoting Steelworkers v. Sadlowski, 457 U.S. 102 (1982)).

Those legislators believed this Bill of Rights was needed to

further protect the rank-and-file members and reinforce the

other provisions of the LMRDA, including the trusteeship

provision.

In these debates, Senator McClellan stated:

I do not believe that racketeering, corruption, abuse of

power and other improper practices on the part of

some labor organizations can be, or will ever be,

prevented until and unless the Congress of the United

States has the wisdom and the courage to enact laws

prescribing minimum standards of democratic process

and conduct for the administration of internal union

affairs. I mean by that, . . . that the Congress should

prescribe and define by law what the rights of union

members are, place in them by democratic process the

power to secure those rights and protect them in their

efforts to do so from reprisals of any kind from their

would-be exploiters, manipulators, and bosses. Without

such protection, other provisions of law may be of little

benefit and meaningless. Without such protection in

the exercise of his legitimate rights the records of our

committee's investigations show over and over again

that a rank-and-file member dare not risk any

opposition to a corrupt or autocratic leadership. If he

does so, he may be beaten, his family threatened, his

property destroyed or damaged, and he may be forced

out of his job--all of these can happen and have

happened.

16

Having these things in mind, . . . I introduced S. 1137

to provide a bill of rights for working people--for union

members.

105 Cong. Rec. 6471-72 (emphasis added).

The Bill of Rights was therefore "[d]esigned to guarantee

every member equal voting rights, rights of free speech and

assembly, and a right to sue." Lynn, 488 U.S. at 352

(quoting Steelworkers v. Sadlowski, 457 U.S. 102 (1982)).

Between January and September of 1959, when the

LMRDA was finally enacted, most of the debate concerned

the new additions and amendments, "while the trusteeship

title glided quietly through the labyrinthine process from

bill to bill with little change and less discussion." See Lynn,

488 U.S. at 357 n.8 (quoting Note, Trusteeship Imbroglio at

1475). Neither the discussions on the House nor Senate

floors focused on the relationship between Title I and Title

III. Id. Senator Dodd, however, did propose an amendment

to Title III which sparked some debate. Specifically, Dodd

wanted the trusteeship provisions to go even further in

order to prevent the manipulation of the trusteeship power

and the resulting harm that had been so well documented

by the McClellan Committee. Note, Trusteeship Imbroglio at

1475-76. Dodd's amendment created a presumption that

trusteeships in place longer than thirty days were invalid

unless the international union, at a hearing before the

Secretary of Labor, could present clear and convincing

proof of a proper purpose. Id. Senator Dodd explained the

rationale for his proposed amendment as follows:

The [Kennedy-Ervin] bill now provides a procedure

under which an individual union member may appeal.

The point is that the full burden of proof is placed

upon such union member, who thus would have to

fight the international or the national union; and in

that fight the limited, sparse, or -- most often--

nonexistent power of the individual union member

would be pitted against the tremendous prestige and

power of the national or the international union. . . .

the philosophy behind my amendment is an old Anglo-

American philosophy . . . that the burden of proof for

so serious a matter as destroying a local union, or local

17

union autonomy -- and that is what a trusteeship

usually does -- should rest upon the national union

seeking to impose the trusteeship.

105 Cong. Rec. at 6675.

Dodd then focused on the importance of protecting the

local membership given organized crime's entanglement

with certain elements of the labor movement as unearthed

during the congressional inquiry. He explained:

In the past, as we know from the revelations of the

McClellan committee, and as we know from litigation,

the imposition of trusteeships was one of the greatest

abuses of the Teamsters Union. My recollection is that

more than 120 trusteeships were imposed by that

union some of them for more than 20 years. Think of

it. For more than 20 years, the local members, the

wage earners, were without any say at all with respect

to their local unions.

* * *

All I seek by the amendment is to give the members of

a local union an opportunity to say to someone, a

judge, or other competent authority, `This trusteeship

should not be imposed on us.'

Id. (emphasis added).

Senator Ervin opposed Dodd's amendment. Ervin argued

"the bill as now drawn furnishes adequate protection for

the rank and file of members of unions which are placed in

trusteeship."13 Id. at 6677. Additionally, Senator Morse

argued:

[W]e should look at the trustee section of the bill as it

comes to us in the light of the other sections of the bill,

and note what the committee has done by way of

_________________________________________________________________

13. Part of Ervin's discussion specifically explained that the bill "takes

care of the main reason why trusteeships are sometimes arbitrarily

imposed, namely, to enable international officers to control the selection

of delegates to international conventions. The bill contains a specific

provision to the effect that the local union in trusteeship may be

represented at an international convention only by delegates elected by

a secret ballot of the members of the local." 105 Cong. Rec. 6677.

18

setting up democratic procedures to protect the rank

and file of the local unions. As we provide democratic

guarantees in the bill, I believe we should keep at a

minimum any interference with the operation of the

internal affairs of the union.

Lynn, 488 U.S. at 357 n. 8 (quoting 105 Cong. Rec. 6678).

Dodd's amendment was subsequently rejected.

When the Kennedy-Ervin Bill went to the House, the

enforcement section of the trusteeship title was changed.14

The Kennedy-Ervin Bill did not grant individual union

members standing to bring suit in federal court. The

Committee Report accompanying the bill explained that

"section 206 makes clear that Federal suits under Title II

are possible only upon suit initiated by the Secretary of

Labor." U.S. Code Cong. & Admin. News 1959, p. 2363. The

enforcement section which Congress passed, and which is

still in force, allows the local union itself or an individual

union member to bring suit in federal court. See 73 Stat.

519 S, 29 U.S.C. S 464.

The legislative history is silent on the issue of whether a

union member, as an appointed officer, may seek individual

damages. However, Congressman Ludwig Teller offered

supplementary views regarding the reasoning behind the

amendment of the enforcement section. Teller explained

that Congress wanted to facilitate individual claims without

any involvement by the Secretary. U.S. Code Cong. &

Admin. News 1959, p. 2500. This allowed Congress to

curtail the inordinate power of the Secretary while saving

taxpayer dollars and eliminating any requirement that a

union member first obtain governmental permission to sue.15

Id.

_________________________________________________________________

14. The enforcement provision currently in force is S 304 of the LMRDA,

29 U.S.C. S 464.

15. Congressman Teller stated:

HR 8342 is a substantial improvement over S. 1555 (the Kennedy-

Ervin bill), the Senate-passed labor management reform bill which

our committee used as a basis for its deliberations.. . . Reducing

the excessive powers of the Secretary of Labor, as we did in our

committee bill H.R. 8342, is in line with our traditions which

favor

19

This expansive discussion of legislative history does not

conclusively establish what type of relief is "appropriate" for

an individual union member who is also an appointed

official. However, it places that inquiry into its proper

context and guides our interpretation of the relevant

statutory language. In interpreting Title III in the context of

the discussions in Congress and the findings of the

McClellan Committee, we conclude that the amendment

authorizing individual law suits was intended to underscore

the concerns surrounding trusteeships under Title III. By

allowing individual members to bring suit rather than the

Secretary, Congress intended more avenues for enforcement

of the trusteeship provision, not more types of relief.

Nothing in the legislative history of Title III suggests that

Congress contemplated an individual bringing suit for

compensatory damages arising from the loss of an

appointed union position under that title. The statutory

scheme of the LMRDA strongly suggests that the individual

rights that Ross seeks to vindicate must be redressed under

Title I. As noted above, that provision was initially referred

to as the "workers' bill of rights" when it was introduced.

Title III, which came first, was meant to protect the

subordinate labor organization, and Title I was

subsequently added specifically to address the rights of

individual union members. Accordingly, we conclude from

the legislative history that the relief that Ross seeks is not

"appropriate" under Title III. An examination of the relevant

cases confirms this conclusion.

D. Applicable Case Law

We have not previously interpreted S 304, the

enforcement provision of Title III. However, Finnegan v. Leu,

456 U.S. 431 (1982), and its progeny guide our analysis. In

_________________________________________________________________

the diffusion of power, will save the taxpayer many millions of

dollars annually without impairing the basic objectives of the

proposed law, and will permit individuals to prosecute their own

cases in the courts without having to obtain permission of a

Government agent or official to do so.

U.S. Code Cong. & Admin. News 1959, p. 2500.

20

Finnegan, Leu defeated Brown in an election for president

of Local 20 of the International Brotherhood of the

Teamsters. Id. at 433. Brown had been openly supported by

a group of the local's business agents including Finnegan.

Id. After Leu assumed office, he discharged all of the

business agents who had supported Brown pursuant to a

provision in the local's bylaws that purported to give the

president the "authority to appoint, . . and discharge the

Union's business agents." Id. at 433. The business agents

then sued in district court contending that their

termination violated Title I of the LMRDA.16 Id.

The Court began its analysis by reviewing the legislative

history of the LMRDA, and concluding that "the Act's

primary objective [was] ensuring that unions would be

democratically governed and responsive to the will of their

memberships." Id. The Court noted that"[i]t is readily

apparent from the legislative history of Title I, that it was

rank-and-file union members--not union officers or

employees, as such--whom Congress sought to protect." Id.

at 437. The plaintiffs were members of the union with

protected speech rights, as well as salaried employees of

the union. Accordingly, the Court had to determine whether

the rights afforded plaintiffs as members of the union

"immunized [them] from discharge at the pleasure of the

president from their positions as appointed union

employees." Id.

The Court concluded that the plaintiffs' Title I rights had

not been violated because plaintiffs had not been precluded

from exercising any of those rights, and the LMRDA did not

protect appointed officers who "backed the wrong horse."

This was true even if it meant that those officers were

"forced to `choose between their rights of free expression

. . . and their jobs.' " Id. (citations omitted). The Court

explained its rejection of plaintiffs' Title I claim as follows:

For whatever limits Title I places on a union's authority

to utilize dismissal from union office as `part of a

_________________________________________________________________

16. The suit was filed under LMRDA SS 101(a) (1) and (2) which

"guarantee equal voting rights, and rights of speech and assembly, to

`[e]very member of a labor organization.' " Id. at 436 (quoting 29 U.S.C.

S 411 (1998)).

21

purposeful and deliberate attempt . . . to suppress

dissent within the union,' (citations omitted), it does

not restrict the freedom of an elected union leader to

choose a staff whose views are compatible with his

own. Indeed, neither the language nor legislative

history of the Act suggest that it was intended to

address the issue of union patronage. To the contrary,

the Act's overriding objective was to ensure that unions

would be democratically governed, and responsive to

the will of the union membership as expressed in open,

periodic elections.

Id. at 441.

Here, Ross also held the "dual status" of union member

and appointed union officer. Defendants argue that because

Ross was employed during the entire time the trusteeship

was in place, Finnegan precludes him from asserting a

claim "arising from the decision of the newly elected officers

of Local 57 not to retain him as a business agent after the

trusteeship ended." Defendants' Br. at 9. Defendants are

correct that the newly elected officers of Local 57 were free

"to choose a staff whose views are compatible with [their]

own." Finnegan, 456 U.S. at 441.

However, the analysis does not end there because, unlike

in Finnegan, we are here concerned with a trusteeship that

was created pursuant to Title III. Ross argues he is entitled

to compensation because the continuation of the

Trusteeship was in bad faith and for the purpose of

removing him as political opposition within Local 57 in

violation of S 304 of Title III.17 The Supreme Court

_________________________________________________________________

17. There is some confusion about Ross' position regarding whether the

Trusteeship was appropriately created and/or maintained. Defendants

quote Ross as having conceded that the Trusteeship"was appropriate

and was imposed for a proper purpose." See Defendants' Br. at 2.

However, we do not interpret Ross' testimony as a concession. Rather, he

was asked if he was aware of the serious charges facing the officers of

the union and whether such serious charges justify establishing a

Trusteeship. He responded, "[w]ell, according to the International, that's

the way they feel. But, I think we should have been spoke [sic] to first.

. . . I do believe that is a valid reason for an International to come in

and

take over." App. at 250. Ross did not necessarily concede, however, that

22

addressed a similar argument in the context of a

trusteeship in Sheet Metal Workers' International Ass'n v.

Lynn, 488 U.S. 347 (1989).

There, the trustee who had been appointed to run the

local asked Lynn, who was an elected business

representative of Local 75, to support a proposed dues

increase. However, rather than support the increase, Lynn

insisted that expenditures be reduced and he organized the

opposition to the proposal to raise union dues. Id. at 349-

50. Five days after the proposal was defeated, the trustee

informed Lynn that he was being removed from his elected

position of business agent. Id. at 350. Lynn exhausted his

administrative remedies within the union, and then filed

suit under Title I alleging that his removal constituted

illegal retaliation in violation of the statutory right of free

speech set forth in S 101(a)(2) of the LMRDA. 73 Stat. 519

S 101(a)(2), 29 U.S.C. S 411(a)(2).

The Court began its analysis by noting similarities

between Lynn's plight, and the plight of the plaintiffs in

Finnegan. The Court recalled that the Title I rights of the

plaintiffs in Finnegan had been chilled"albeit indirectly,

because [they] had been forced to choose between their

rights and their jobs." Id., at 354. Nevertheless, the

Finnegan plaintiffs had not recovered because the choice

that they were left with did not violate the purpose of the

LMRDA.

Whether such interference with Title I rights gives rise

to a cause of action under S 102 must be judged by

reference to the LMRDA's basic objective: "to ensure

that unions [are] democratically governed, and

responsive to the will of the union membership as

expressed in open, periodic elections." In Finnegan, this

goal was furthered when the newly elected union

president discharged the appointed staff of the ousted

_________________________________________________________________

the actual motivation for taking over was the justification asserted by

the

International. Moreover, even if he may have conceded the Trusteeship

was established for a legitimate purpose, he clearly insists that it was

maintained for an improper purpose, and that he has a cause of action

under Title III as a result.

23

incumbent. Indeed, the basis for the Finnegan holding

was the recognition that the newly elected president's

victory might be rendered meaningless if a disloyal staff

were able to thwart the implementation of his

programs. While such patronage-related discharges

had some chilling effect on the free speech rights of the

business agents, we found this concern outweighed by

the need to vindicate the democratic choice made by

the union electorate.

488 U.S. at 354-5 (citations omitted). However, the Court

stressed that Lynn's situation was quite different for he was

removed from an elected position, and his removal thereby

had a direct impact on the democratic governance of the

union itself.

The consequences of the removal of an elected official

are much different. To begin with, when an elected

official like Lynn is removed from his post, the union

members are denied the representative of their choice.

Indeed, Lynn's removal deprived the membership of his

leadership, knowledge, and advice at a critical time for

the Local. His removal, therefore, hardly was an

integral part of ensuring a union administration's

responsiveness to the mandate of the union election.

Furthermore, the potential chilling effect on Title I

free speech rights is more pronounced when elected

officials are discharged. Not only is the fired official

likely to be chilled in the exercise of his own free

speech rights, but so are the members who voted for

him. Seeing Lynn removed from his post just five days

after he led the fight to defeat yet another dues

increase proposal, other members of the Local may well

have concluded that one challenged the union's

hierarchy, if at all, at one's peril. This is precisely what

Congress sought to prevent when it passed the

LMRDA. "It recognized that democracy would be

assured only if union members are free to discuss

union policies and criticize the leadership without fear

of reprisal."

Id. at 355. Accordingly, the Court held that Lynn's

allegation of retaliatory removal stated a cause of action

under Title I of the LMRDA.

24

Ross was appointed and his complaint alleges only a

violation of Title III.18 The Court in Lynn was quite explicit

in tying Lynn's cause of action to Title I. The Court

emphasized the importance of Title I as follows:

we find nothing in the language of the LMRDA or its

legislative history to suggest that Congress intended

Title I rights to fall by the wayside whenever a

trusteeship is imposed. Had Congress contemplated

such a result, we would expect to find some discussion

of it in the text of the LMRDA or its legislative history.

Given Congress' silence on this point, a trustee's

authority under Title III ordinarily should be construed

in a manner consistent with the protections provided in

Title I.

Id. at 356-57.

Title I was enacted to protect rank-and-file members of

the union and to insure union democracy by protecting the

independence of elected union officials even though the free

speech rights of the union's membership are implicated.

This is true whether or not a trusteeship is involved. Ross

tries to avail himself of the holding in Lynn by arguing that

his removal has an impact on the democratic governance of

the Local.19 He seems to be arguing that Title III was the

_________________________________________________________________

18. Ross' brief states:

As a result of the improper use of a trusteeship, Ross suffered

direct

or proximate damages. But for the imposition of the trusteeship,

Ross still would be employed. Since the trusteeship was intended

for

an improper purpose and maintained in bad faith, the Defendants

violated the LMRDA. Ross, as a member of Local 57, was "affected"

by the violation of the LMRDA. The damages requested were

"appropriate" to make him whole.

Ross' Brief at 23 (emphasis added).

19. Ross' brief states:

The actions of the International Union will have also a chilling

affect

on all members of Local 57. If the International Union succeeds in

destroying Ross and leaving him with no recourse, then other

members will refrain from opposing the International Union. On the

other hand, if the International Union is required to defend Ross'

action and to compensate him for its misuse of the trusteeship,

then

25

mechanism by which his free speech rights (i.e., Title I)

were violated. However, the rights that may have been

chilled are nevertheless Title I rights, not Title III rights.

Therefore, the holding in Lynn does not further his position.

"The potential chilling effect on Title I free speech rights is

more pronounced when elected officials are discharged. Not

only is the fired official likely to be chilled in the exercise of

his own free speech rights, but so are the members who

voted for him." Id. at 355. We are not persuaded by Ross'

attempts to secure compensation for a claimed violation of

Title I under Title III. His position is, in fact, in substantial

tension with Finnegan. After all, in Finnegan, the Court

allowed an appointed officer to be removed even though

doing so required employees to chose between free speech

and continued employment. The Court reasoned that choice

was necessarily concomitant to allowing elected officials to

implement the programs and leadership that a majority of

the union membership had voted for. Although there was

no issue of a trusteeship in Finnegan, it is very difficult to

square that analysis with Ross' assertion that he has a

cause of action because of the Trusteeship here.

As the Supreme Court found in the Title I setting,

nothing in the legislative history of Title III establishes that

Congress intended to protect appointed officers like Ross

under the circumstances here. Ross' reliance upon Title III

may well be an attempt to circumvent the holding in

Finnegan. But for the existence of the Trusteeship and the

fact that Ross brought this suit under Title III, Finnegan

would be more precisely on point. Ross' claim that he was

victimized by an appointed Trustee rather than an elected

officer does not alter the fact that the rights he seeks to

vindicate are Title I rights, not Title III rights. Accordingly,

we believe our analysis here must still be guided by

Finnegan, and that is confirmed by our reading of Gesink v.

_________________________________________________________________

the International Union will think twice before using a trusteeship

as a means to harm one of its members. In this respect, Ross'

actions benefit all members and inure to the benefit of the

`subordinate body of a labor organization' in addition to himself.

Ross' brief at 23 (emphasis added).

26

Grand Lodge, International Ass'n of Machinists and

Aerospace Workers, 831 F.2d 214, 216 (10th Cir. 1987).

In Gesink, the International appointed a trustee who

subsequently filed charges against Gesink, a business

representative for the local. Id. at 215. Gesink was

thereafter removed from his office by the president of the

International, and he was barred from holding any office for

five years. Id. Gesink sued for damages under Title I and

Title III. His claim for damages under Title III was based

upon his assertion that he was entitled to relief for

deprivation of his salary and other emoluments of his office

during the Grand Lodge supervision of the District Lodge.

He argued that the supervision violated Title III of the

LMRDA. Id. at 216. The Court dismissed his Title III claim

stating:

In light of the legislative history of Title III of the

LMRDA and the Supreme Court's ruling in Finnegan ,

this Court finds that there is no cause of action for

individual damages under SS 462 and 464. Any right of

action pursuant to those sections belongs to the

subordinate union, while a union member may sue to

enforce the act's provisions, such suits should be

limited to relief on behalf of the union. As the Supreme

Court concluded in the Title I context, this Court

concludes that nothing in the legislative history of Title

III indicates an intent to protect the positions of union

officers and employees.

Id., at 216. Similarly, in Pope v. Office and Professional

Employees International Union, the court stated:"Title III of

the LMRDA is designed to protect a subordinate union as

a whole, whereas Title I . . . is designed to protect the

individual rights of the members of a union." 74 F.3d 1492,

1504, (6th Cir. 1996).

The district court here found that Ross is not seeking

compensatory damages and reinstatement in order to

protect the local union and its membership from the

actions of the Trustee. Rather, the court concluded that

Ross sought relief to redress personal losses purportedly

inflicted upon him by the Trustee. Ross v. Hotel Employees

and Restaurant Employees Int'l Union, No. 98-1131, slip.

27

op. at 16-17 (W.D. Pa. Oct. 4, 1999). His efforts to now

argue that his relief will benefit the union by vindicating its

members' free speech rights is little more than a belated

attempt to import considerations that govern Title I relief

into a suit brought only under Title III.

Despite the holding in Finnegan, Lynn , and Gesink, Ross

urges that we be guided by Higgins v. Harden, 644 F.2d

1348 (9th Cir. 1981). There, the International Association of

Machinists ("IAM") appointed Simpson and Harden to

exercise control over a local for which Higgins was an

organizer. Thereafter, Harden attempted to remove Higgins

from his position as organizer by claiming that Higgins had

been unproductive. Higgins responded by suing under

SS 101-611 of the LMRDA, 29 U.S.C. SS 401-531. He alleged

that the IAM had imposed an unlawful trusteeship in the

form of Simpson and Harden, that those trustees were

without authority to terminate him, and that his

termination had actually been in retaliation for his political

support of the directing business representative of the local

who had apparently fallen into disfavor with the

International, and been "forced out" by Harden. Id.

The district court held that the International had, in fact,

established a trusteeship. That trusteeship was declared

invalid because the International had not complied with

IAM's own constitution and bylaws. Accordingly, the court

held that Harden did not have the authority to remove

Higgins, and Higgins was awarded back-pay and attorney's

fees. Id. The court of appeals affirmed that part of the

district court's opinion. However, the court of appeals

merely assumed that the requested individual relief was

"appropriate" under Title III.

We decline to embrace Higgins for several reasons.

Although the court there assumed that an individual right

of action exists, under Title III, it did not directly address

the issue. See Gesink, 831 F.2d at 216 (finding that the

Higgins court "apparently assumes there is an individual

right of action . . . but . . . does not discuss the issue"). It

never analyzed the legislative history that Finnegan and

Lynn instruct is so important to a proper inquiry. Moreover,

Higgins was decided before Finnegan and Lynn, and the

Higgins court therefore did not have the benefit of the

28

Supreme Court's discussion of the LMRDA contained in

those later cases.

Ross also urges reliance on McDonald v. Oliver , 525 F.2d

1217 (5th Cir. 1976). In McDonald, new elections were held

after a trusteeship was established, but the International

invalidated the election results and refused to install the

new officers. Id. at 1222-23. The newly elected officers

brought suit under Titles I and III seeking to end the

trusteeship; and win installation as officers, and back-pay.

Id. The Secretary also brought an action under Titles III

and IV based on a finding by a Labor Department official

that the continuation of the trusteeship and the failure to

recognize the election violated Titles III and IV of the

LMRDA. Id. at 1224. The district court declared that the

election was valid, ordered the immediate installation of the

officers, and awarded back pay. Id. at 1225. The Court of

Appeals affirmed, reasoning that:

[a]lthough the primary purpose of an individual's

lawsuit is obviously to vindicate his own rights or

facilitate his own candidacy, there can be little doubt

that he renders a substantial service to the union as

an institution and to his members individually in

protecting local democratic processes through Titles I

and III. The successful litigant dispels the "chill" cast

upon the rights of others.

Id. at 1227. The court also concluded that Title III should

be "construed in light of the varius other provisions of the

LMRDA." Id. at 1229. The court recognized that the primary

purpose of the LMRDA is "not only to stop and prevent

outrageous conduct by thugs and gangsters but also to

stop lesser forms of objectionable conduct by those in

positions of trust and to protect democratic processes

within union organizations." Id. The court concluded by

finding that the international union was thwarting union

democracy in violation to the LMRDA.

Although McDonald suggests that a successful suit under

Title III confers benefits on the entire union membership,

the holding does not advance Ross' argument as much as

he would like because McDonald was also decided before

Finnegan and Lynn. Moreover, McDonald was elected and

29

Ross was appointed. The decisions in Finnegan and Lynn

readily establish the importance of that distinction and

undermine McDonald as support for Ross' action under

Title III.

Similarly, we find that Ross' reliance upon Pruitt v. United

Brotherhood of Carpenters and Joiners of America, 659 F.

Supp. 1511 (N.D. Ga. 1987), vacated on other gr'ds, 893

F.2d 1216 (11th Cir. 1990), is misplaced because Pruitt too

is distinguishable from the instant case. There, the court

was not asked to find a private cause of action for damages

under S304 of Title III. Rather, Pruitt sued under both Title

I and Title III alleging that an appointed trustee had

prevented him from assuming an elected position in

retaliation for the exercise of free speech. Id. at 1514. The

court discussed the statutory presumption of validity that

attaches to trusteeships under S 304 of Title III in inquiring

into whether the trusteeship in question had been imposed

for a proper purpose. Id. at 1517, 1520. The issue

addressed by the court was whether the "plaintiff 's Title III

claims fail as a matter of law under the clear and

convincing evidence standard [of S304]." Id. at 1519. The

court merely ruled that "a triable issue may exist as to

whether the trusteeship was maintained to block plaintiff

from assuming his elected position" Id. at 1520. More

importantly, Pruitt, unlike Ross, stated a Title I claim based

upon his assertion that the trusteeship had precluded him

from assuming an elected position. Id. at 1522.

Finally, Ross relies upon the decision of the Court of

Appeals for the Sixth Circuit in Pope v. Office and

Professional Employees International Union, 74 F.3d 1492

(6th Cir. 1996). Pope was an appointed business

representative of Local 268 of the Office and Professional

Employees International Union (OPEIU). Soon after his

appointment, he alleged wrongdoing and mismanagement

on the part of officers of Local 268. Id. at 1496. Support for

Pope's outspoken criticism of the Local's leadership soon

flourished, and he became a candidate for president of the

Local despite opposition of the OPEIU, and local board. Id.

at 1497. After one very chaotic meeting of the Local, the

OPEIU granted the local board's request, and imposed a

trusteeship to control Local 268 pending a hearing to

30

determine its propriety. Id. at 1498. Thereafter, the union

held a hearing and determined that the trusteeship was

appropriate despite Pope's protestations to the contrary.

Shortly thereafter, Pope was fired, and his union

membership was withdrawn without notice or opportunity

to be heard. Id. at 1499. Pope was therefore ineligible to

run for president of the Local. Elections were held, a new

slate of officers was elected, and the trusteeship was

thereafter terminated. Id. at 1500. However, before the

trusteeship was terminated, Pope sued in district court.

Pope argued that the trusteeship violated Title III of the

LMRDA, and that denying him eligibility to run for union

office violated Title I of the LMRDA. Id. He sought monetary,

declaratory and injunctive relief. However, after the

elections took place the declaratory and injunctive claims

were dismissed as moot. Id. The suit proceeded to trial, and

the jury awarded Pope compensatory and punitive damages

against the OPEIU. Id.

OPEIU appealed claiming that the LMRDA is designed to

protect rank and file union members and not officers and

employees and that Pope therefore lacked standing as an

appointed employee. Id. at 1501. In resolving those issues,

the Court reconciled the jury's verdict with the holdings in

Finnegan, Lynn, and Gesink. The court also reconciled the

jury's verdict with the holding in Cehaich v. International,

UAW, 710 F.2d 234 (6th Cir. 1983), a case involving similar

facts decided subsequent to Finnegan. Cehaich and Pope

had both been appointed employees of local unions, but

Cehaich's "status as a member of the union did not change

after he was terminated from his appointed position. He

was not fined, suspended, expelled or disciplined." Pope, 74

F.3d at 1502. The court reasoned as follows:

In Finnegan, the appointed officials of an ousted board

were not protected by the LMRDA because union

members elected a new board. In Lynn, the elected

officials were protected because they had been elected

by the union members. The purpose of ensuring

democracy is furthered by allowing Pope a cause of

action under the LMRDA. Pope was appointed a

business representative by an elected local executive

board. That board was not ousted as in Finnegan .

31

Moreover, unlike Cehaich, Pope was expelled from

union membership immediately after his termination

from his position as business representative. Thus,

Pope's case is clearly distinguishable from Cehaich.

Pope is entitled to protection under the LMRDA

because he was disciplined in a manner which affected

his right to fully enjoy the rights and privileges of

union membership.

Id. at 1503.

However, most significantly for our purposes, the court

held that Pope's suit was not moot merely because the

trusteeship had since been terminated. The court reached

that result by reading Title I and Title III together and

concluding that "[t]he question of the propriety of the

trusteeship is not moot because it has direct bearing on

whether Pope's Title I rights were violated." Id. The violation

of Title III supported Pope's claim for damages because "[his

was] an action at law to recover damages for the

suppression of Title I rights as a result of the imposition of

a trusteeship." Id. at 1505.

However, Ross is not alleging a violation of Title I. He was

not expelled from membership, and he was reinstated to his

appointed position within 24 hours of being removed from

it.20 In reviewing the grant of summary judgment for the

defendants here, we must assume that they denied Ross'

eligibility to run for election solely to keep him from

running in the election. Although a union member's right to

seek elective office is protected under Title I, Id. at 1503;

Gesink, 831 F. 2d at 217, Ross seeks relief solely under

S 304 of Title III. Based on the text and legislative history of

Title III and the Supreme Court's decisions in Finnegan and

Lynn, we hold that Title III does not allow a private cause

of action for individual damages flowing from the

termination of an appointed employee. Relief underS 304

_________________________________________________________________

20. We do not suggest that a union member must be stripped of his/her

union membership to state a cause of action under Title I or that prompt

reappointment will always insulate a defendant from claims of

retaliation. However, we do note that Ross does not argue that his

termination as an appointed officer was a scheme to suppress his

freedom of speech and assembly as a union member under Title I.

32

must be sought on behalf of the local union organization

and the entire membership must reap the benefits.

Accordingly, we conclude that the district court properly

determined that there was no genuine issue of material fact

and that, on the record before it, Ross' Title III claim failed

as a matter of law. The relief Ross seeks is simply not

"appropriate" within the meaning of Title III.

IV. Conclusion

For the reasons set forth herein, we conclude that the

district court did not err in granting summary judgment to

the defendants under Title III of the LMRDA and that order

will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

33