Petition — Local Union No. 795, International Longshoremen's Ass'n v. McDonald

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_ Supreme Ceurt, U. g

FILED »

In THE |

Supreme Court of the United Stitt 9

OCTOBER TERM, 1975

APR 13 076

No ®5-14 79

Locat Union No. 795, LyrernationaL LonasHOREMEN’S

Association, AFL-CIO, et al.,

Petitioners,

MicHaet J. McDownaxp, et al.,

Respondents,

and

Locat Union No. 795, INTERNATIONAL LONGSHOREMEN’S Asso-

ciation, AFL-CIO and InrTerNationaL LONGSHOREMEN’S

Association, AFL-CIO,

Petitioners,

Secretary of Labor, United States Department of Labor,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Txomas W. GLEason, JR.

17 Battery Place

Suite 600

New York, NY 10004

(212) 425-3240

Attorney for Petitioners

April 13, 1976

TABLE OF CONTENTS

PAGE

Opinions Below ............:eeee eee e ener eeeecteee 2

Pattee oink cvccbkccccecasssdcvastsssccsiceses 2

Questions Presented .........---+-+eeeseereees er 2

Statutory Provisions SD 6 bv da dadedenduacheted 3

hates GE GS GD «oo ce ccccccssvscccssccesexes 3

Appenpix A—The Decisions Below ................ la

APPENDIX B—Statutory Provisions Involved ...... 64a

TABLE oF AUTHORITIES

Cases:

Aetna Life Insurance Co. v. Haworth, 300 U.S. 227

SE a ecdsvecueececscdebubaaedeaueqeenswess 13

Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed. 2d 141

(1975)

Bell v. School Board of Powhatan County, 321 F.2d

re Se es SE Sine bid kek ndwandieedecstes 17

Brennan v. Silvergate District Lodge No. 50, Inter-

national A. of M. and A. W., 503 F.2d 800 (9th

Ss SE vckeecyanddixaedbarsoedadeadck 14

Brennan v. United Mine Workers, 475 F.2d 1293 (C.A.

Ss SEE. bind chacinnentesdenaeedieds keds 1!

Burch v. International Association of Machinists &

Aerospace Workers, 337 F.Supp. 308 (S.D. Fla.,

1971)

ii TABLE OF CONTENTS

Calhoon v. Harvey, 379 U.S. 134 (1964) ........... 10

Colpo v. Highway, Truck Drivers and Helpers, Local

107, Teamsters, 305 F.2d 362 (3rd Cir., 1962) .. 14

F. D. Rich Co., Inc., et al. v. United States for the Use

of Industrial Lumber Company, Inc., 417 US.

Se EE “nica Shc eNOUE Alo bev dls ceseeseesucs 17

Bee He Ce: Ge GH © CGD 6 Oi dkeik dc ktivn dcdcdc 16, 18

Hodgson v. Local 6799, Steelworkers, 403 U.S. 333

ET 2x1 oh ue Cau eh ease ck eee ededeeawker nek 10

Hollon vy. Mathis Independent School District, et al.,

ee eee Ge EE is ED vos dccccccctccenss 14

Knapp v. Baker, etc., 509 F.2d 922 (5th Cir., 1975) 14

McCandless v. Furlaud, 296 U.S. 140 (1935) ........ 16

Merkey, et al. v. Board of Regents, 493 F.2d 790 (5th

i MT. 54.4.3 se4seswnedaoeekasdeeness sb ens 14

Mills v. Electric Auto Lite, 396 U.S. 375 (1970) ..15-16, 18

Parker, ete. v. Laundry, Dry Cleaning & Dye House-

workers Union, Local 218, et al., 517 F.2d 9%

Re Ee oe 14

S.E.C. v. United Benefit Life Ins. Co., 387 U.S. 202 18

Schonfeld v. Raftery, 271 F.Supp. 128 (S8.D.N.Y.,

1967), aff’d., 381 F.2d 446 (2nd Cir., 1967) ...... 11,17

Trbovich v. Mine Workers, 404 U.S. 537 (1972) .... 11

United States v. Munsingwear, Inc., 340 U.S. 336

“SARA ON ait sin SPREE rme iret Me? 13,14

Universal Oil Products Company v. Root Refining

Company, 338 U.S. 575 (1945) .............6.. 17

U. S.v. W. 7. Grant Co., 345 U.S. 629 (1953) ...... 14

Vaughan v. Atkinson, etc., et al., 396 U.S. 527 (1962) 17

TABLE OF CONTENTS iii

PAGE

Westberry v. Giiman Paper Company, et al., 507

¢ fF & Fe ree 14

Wirtz v. Local 153, Glassblowers Association, 389 U.S.

Se EE, Sri on OE Coosa ch sweecunceceen 10, 12, 12

Yablonski v. United Mine Workers of..dmerica, 466

ee GO CENA, TOUR) on cc ccccccccccccccccs 18

Statutes:

ED hhc cdkdi svar ccckscncseavennsss 2

Labor-Management Reporting and Disclosure Act of

1959, Pub. L. 86-257, Titles ITI aad IV, Septem-

ber 14, 1959, 73 Stat. 531, 532 and 534,

§§ 462, 464, 481, 482 and 483 (L.M.R.D.A.) .... 3

Section S08, 2) U.S.C. $468 ... 0... ccccccccccs

Section 401(c), 29 U.S.C. $481 ............... 5

Section 401(e), 29 U.S.C. $481(e) ............ 7,8

Ee coe eae ee ee 9

I a le 11

Miscellaneous:

S. Rep. No. 187, 86th waned Ist Sess. 21 L. Leg.

EE dvuvdades dene ba6iiekhseessceeke sear 10

2 U.S. Cong. and Admin. News 1959, 2318, at 2334,

Gia dan 6 duende tases be eeuaeecens cheks 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-

dy.

Loca, Union No. 795, IyrernationaL Lx sGSHOREMEN’S

Association, AF'L-CIO, et al.,

Petitioners,

* v.

Micuaet J. McDownatp, et al.,

Respondents,

ard

Locau Union No. 795, IyternationaL LonGSHOREMEN’s Asso-

ciation, AFL-CIO and InrernationaL LonGsHOREMEN’Ss

Association, AFL-CIO,

Petitioners,

Secretary of Labor, United States Department of Labor,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners are the International Longshoremen’s Asso-

ciation, AFL-CIO (“ILA’’), its Local Union No. 795, Gulf-

port Mississippi, Fred R. Field, Jr., its Trustee, over said

Local, and Harold Oliver, Ivy Herbert, Rudolph Tillman,

Lynn E. Bangs, J. D. Scarborough and Samuel E. Moore,

Local members cited in the proceeding below who were can-

didates for Local offices in an election on October 6, 1973.

The private Respondents are Michael J. McDonald, Eugene

Ladner, Richard Clark, Norman J. Ladner, Tony Lamberg,

Elmer Ford, Bernie Ray Saucier and Eugene Niolet who

variously ran against the forenamed members in that elec-

tion. Petitioners respectfully pray that a Writ of Cer-

tiorari issue to review the Judgment and Opinion in the

United States Court of Appeals for the Fifth Circuit,

entered in this proceeding on January 14, 1976.

Opinions Below

The Opinion of the Court of Appeals is reported at 525

F.2d 1217. The underlying Opinion of the District Court

for the Southern District of Mississippi, Southern Divi-

sion, rendered on September 26, 1974, is reported at 400

F.Supp. 660. Its Order and Supplemental Opinion and

Order have not been reported. These Opinions and Orders

are set forth at Appendix ‘‘ A’’ hereto.

Jurisdiction

The Judgment of the Court of Appeals was entered on

January 14, 1976. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1).

Questions Presented

1) Does a District Court exceed its statutory jurisdic-

tion and equitable powers when it:

a) terminates a parent-union’s duly established Trus-

teeship over its Local in derogation of, and interference

with the lawful and orderly conduct of, and rulings on

internal affairs, preserved for unions by the Congress in

enacting the L.M.R.D.A.;

b) awards retroactive payments and rules on pro-

spective eligibility of a candidate for union office, neither

ancillary nor requisite to its termination of the Trusteeship

under Title III of the L.M.R.D.A.?

2) a) Does a case persist before an Appellate Court and

this Court where an intervening event, viz., a union elec-

tion, claimed to moot a controversy, per se is tainted by the

abovementioned provisions of and proscriptions in the

District Court’s underlying Opinion and Order?

b). If not, did the Appellate Court nevertheless erro-

neously and irreconcilably sustain the Tistrict Court’s

Award of incidental relief in precluding review of the

primary issues on Appeal as moot and/or by improperly

invoking an exception under the General American Rule,

= defined by this Court, eschewing awards of attorney

ees?

¢) If so, should this Court exercise its supervisory

powers to correct obvious errors and avoid inconsistent

precedents?

Statutory Provisions Involved

These cases involve §§ 462, 464, 481, 482 and 483 of the

Labor-Management Reporting and Disclosure Act of 1959,

Pub. L. 86-257, Titles III and IV, September 14, 1959, 73

Stat. 531, 532 and 534. The pertinent provisions are set

forth at Appendix B hereto.

Statement of the Case

The chronological sequence of events, including the

course of litigation and determinations in the Courts below,

serve to illustrate the errors claimed.

In April 1971, the ILA concluded its investigation of

Charges by members of its Local No. 795, Gulfport,

Mississippi. The Charges alleged, inter alia, that Local

President Harold Oliver failed to implement the Seniority

provisions under the portwide collective bargaining agree-

ments, including his resistence to the integration of

seniority in hiring hall arrangements between that Local,

whose members are white, and a sister Local Union No.

1303 then consisting of black longshoremen only. The

ILA’s Officials also were apprised of evident corruption and

inequality in the administration of the joint-industry bene-

fit funds covering members of both Locals. As a result,

the ILA, consistent with the letter and intent of Section

302 of the Act (29 U.S.C. § 462), duly established a Trustee-

ship over the Local. Fred R. Field, Jr., ILA’s General

Organizer, was appointed Trustee. Field then perceived

the essence of the problems under his mandate to ‘‘correct

abuses in the administration of the Funds” and ‘“‘to

negotiate and put into effect a Seniority System that will

protect all longshoremen.” He therefore permitted Oliver

and the other Local Officers to continue to run the detailed,

day-to-day business of the Local and concentrated his ex-

perienced bargaining and administrative skills in the fore-

noted key areas.

In February 1973, a Complaint was filed with the Secre-

tary of Labor seeking termination of the Trusteeship. The

Secretary refrained from acting thereon when he learned,

in or about June 1973, that the ILA was in the process of

voluntarily ending the Trusteeship, inasmuch as Field had

negotiated a single, portwide hiring hall in compliance with

the Civil Rights Act of 1964 and essentially had corrected

the irregularities in the administration of the Trust Funds.

The Trustee established a timetable for dissolution of the

Trusteeship and restoration of Local autonomy to its duly

elected Officers, to be determined in an election on October

6, 1973.

The tally of ballots for office of President* shows that

Respondent McDonald obtained a 21-vote plurality of 136

* The President, the only full-time, salaried officer, oversees the

hiring system, adjusts grievances and otherwise is the operational

agent for the membership.

« —— eee ee

ballots to Oliver’s 115 and that E. J. LeBeau also received

66 votes. The ballotiug in contests for the other Local

offices varied. (App. A at 25a infra.) In the wake of

the election, the ILA’s District and the International Of-

ficers received several letters of protest from rank-and-

file members other than Respondents. They alleged Me

Donald’s ineligibility for office because he had not been

“working or seeking work in the industry’’ for a minimum

of oue (1) year prior to his nomination, as required by the

ILA’s Constitution; LeBeau’s disqualification because he

was a supervisor until shortly preceding his nomination;

that Oliver had not paid his dues in time to run for office;

that numerous members, including pensioners or those on

the Local’s disability list, were not in good standing as

of the cut-off date. September 1, 1973; and that the candi-

dates’ poll watchers summarily were excluded from the

polling area during the voting period, in violation of the

Locals own Regulations governing that election as well as

of the applicable provision of the Act.*

By letter of October 22 to ILA President Gleason, Alben

Hopkins, McDonald’s attorney requested advice whether

protests to the election had been filed and their bases,

“so that the appropriate measures can be taken to insure

the installation of the duly elected officers.”” On October 24,

Gleason replied by enclosing the letters of protest above-

noted, pending receipt of the District President’s recom-

mendation. The recommendation requested a stay of the

installation pending further investigation. Gleason con-

curred as did the ILA’s Executive Council, comprised of

24 Vice Presidents located throughout the Union’s juris-

diction in the United States and Canada, and 3 officers.

They stayed the results and continued the Trusteeship,

1a Section 401(¢), 29 U.S.C. § 481 which, in pertinent part, pro-

vides :

“Adequate safeguards to insure a fair election shall be

vided, inclu the right of any eandidate to have en observer

at the polls and at the counting of the ballots.”

pending only their review of recommendations by an in-

vestigating committee.

On November 27, the individual Respondents, though

they had not filed a letter of protest to the election, neither

with the Union nor with the Secretary of Labor, brought

an action in their behalf in the U. S. District Court for

the Southern District of Mississippi, Southern Division,

under Titles I and III seeking, inter alia, removal of the

Trusteeship, judicial declaration of the validity of the

election, and their personal installations in office. On

January 9 and 10, 1974, the investigating committee of 3

ILA Vice Presidents, took evidence from all concerned,

including McDonald, on all of the issues raised by the

protests. It concluded that McDonald and LeBean* did

not qualify as Presidential candidates and sustained the

other objections enumerated above. It recommended

that the October 1973 election be declared invalid and that

a new election be held with proper safeguards.

On January 14 and 15, 1974, the District Court com-

menced hearing evidence on the Complaint. On January

17, Hopkins filed an appeal to the committee’s recommenda-

tion and initially protested and objected to the failure of

the Local or International to place his clients in office. On

January 24 and February 26, Hopkins dispatched Com-

plaints to the Secretary of Labor, similar to one he also

prematurely had filed on December 17, 1973. On February

15, the ILA’s Executive Council considered the Appeal, ac-

cepted the committee’s report, set aside the election of

October 6, 1973, and ordered a new election. On February

28, the Trustee removed all individuals, including Oliver,

who were involved in the daily operations of the Local. He

initiated procedures for a new election in a manner to

assure no possible repetition of the earlier irregularities.

*It is noted that LeBeau, a part of management prior to

August 1973, from the ILA’s view, was not working in the “trade

or eraft covered by” Local 795, a prerequisite to his nomination.

22, 1973 = President Gleason and of January 25,

Field kept the Secretary of Labor fully informed of his

actions. ' He invited him to oversee and/or participate in

the election. Nevertheless, on March 25, the Secretary in-

dependently filed a Complaint. It recites that on ihe basis

of his investigation, he concluded that the International

and Local violated Section 401(e) of the Act (29 U.S.C.

§ 481( e)) through their failure to install the Officers

properly elected” in the October 6, 1973 election and

violation of Title III by continuation of the Trusteeship.*

The District Court consolidated the Complaints and granted

the Secretary’s Motion to restrain the ILA from conducting

its election, then scheduled for May 25, 1974.

On September 26, 1974, the District Court issued its

Opinion followed by a Supplementary Opinion and Order

on October 24, The Court preliminarily noted that “all

parties and the Court agree on the futility of dissolving

the Trusteeship uxtil such time as there are properly

elected officers to take over management of the Union’’

(App. A at 9a). The Court thereupon reviewed the evidence

and made findings as to each of the obections already con-

sidered and acted upon by the ILA’s Executive Council:

declared the individual Respondents to have been duly

elected for two-year terms of office commencing October 6

1973 and terminating October 5, 1975; dissolved the

Trusteeship; and enjoined Petitioners from declaring

McDonald to be ineligible for Local office under newly

revised By-Laws interpreted to also apply to the 1975 elec-

tion. It further awarded back pay to McDonald and attor-

ney fees and expenses, in excess of $11,000 jowmtly and sev-

erally against the Local, the ILA and Field afd Oliver in-

dividually. The Court relied upon Title I (si¢) and its own

inherent equity power to validate the October 1973 éleetion --

and to obviate a need for a new election. At further ac-

* This Complaint was predicated on Hopkins’ } of October

cepted the Secretary’s interpretation of Section 401(e) of

the Act to require the installation of the individual Re-

spondents.*

On October 24, 1974, Petitioners filed a Notice of Appeal

in the Fifth Cireuit. The transcript was not received until

January 1975, and enlargements of time repeatedly granted

the Respondents delayed filing of the Reply Brief to May 5.

On May 12, Petitioners’ Motions to Expedite the Appeal

and for leave to proceed on the original typewritten record

without requirement of an Appendix, grounded on the

delays already incurred and the imminence of the termina-

tion of the incumbents’ terms of office on October 5, were

granted, “subject to the condition of the court’s docket.”

On June 27, Counsel for Petitioners, having learned

that the Court recessed, raised the expedition already

granted and other, practical considerations, to cause

the Court to reconvene. They were refused on July 2.

The Court, though alerted to the problem, scheduled oral

argument for October 7. The Secretary advised the Court

that the election of Local Officers took place on October 4,

and argued that the issues on Appeal thereby were ren-

dered moot. Petitioners maintained that a “case or con-

troversy” persisted; that the recent election, in which all

Officers, including McDonald, were returned with one ex-

ception, were the fruits of the erroneous determinations

and Order of the District Court, and recited the foregoing

history of the appeal.

In its Decision on January 14, 1976, the Court of Ap-

peals expressly found that the:

“| . expiration of plaintiffs’ two-year term of office

and the holding of a scheduled election for local of-

* Petitioners’ Motions to Stay the Order and to Expedite Ap-

peal were denied by the Circuit Court on November 7, 1974. As

a result, the individuals assumed their offices on or about Novem-

ber, 1974 when the Trusteeship was terminated.

ficers while this appeal was in progress has ezxtin-

guished the underlying controversy and rendered this

case moot as to all issues. . . .” (App. A at 46a)

(Emphasis added)

But the Court did not stop there! It consistently dismissed

the Secretary’ suit and the injunction-related issues as-

serted on behalf of the individual union-member Plaintiffs

for mootness. It went on to recognize and approve ter-

mination of the Trusteeship which it attributed to the in-

dividual Respondents’ Complaint but not to the Secretary’s

investigation and Complaint and further determined that

the issues of back pay and attorney fees survived moot-

ness of the substantive portions of

a ae portions of the controversy (App.

In adducing and confirming the back pay and fees, the

Court, directly and indirectly, effectively reviewed and af-

firmed all aspects of the Decision below, under its own

exclusively Title IIT, rationale. Thus, through an analysis

of the other issues and facts which were raised by Petition-

ers in their Appeal,* it concluded that the District Court

correctly installed the Officers as a legitimate exercise of

equitable powers ancillary to its termination of the Trustee-

ship. Yet, it further confirmed the award of back pay, for

the entire preceding year, to McDonald. It sustained the

award of attorney fees against the Local under a ‘‘com-

mon benefits’? theory and, in addition, against the ILA

Field and Oliver by reference to the “‘bad faith” exception

to the General American Rule, which ordinarily eschews

such awards not provided for within the statutory frame-

work. Alyeska Pipeline Service Co. v. Wilderness Society

421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed. 2d 141 (1975). But,

oy Included, inter alia, were arguments ressed

tame = s nS0's 4 $8) te Labor Managemen Relations Acts

S.C. to McDonald’s candidacy, and exclusi

treatment of post-electio d Secti eo

involved herein and by the Union — sa tac Ea

in so doing, it relied upon the factual findings of the Dis-

trict Court and its own references to, and conclusions from

the record below. Finally, the Appellate Court implicitly

sustained the District Court’s directive regarding Mc-

Donald’s eligibility in the 1975 election when it stated that

“t]he validity of that election is not an issue in this ap-

peal” (App. A at 47a).

REASONS FOR GRANTING THE WRIT

1. The Court of Appeals improperly mooted the issues

on appeal, inasmuch as a case or controversy persists

to date. The Decisions below violate the fundamental

right of unions to administer their internal affairs as

recognized by Congress and this Court.

It is manifest from the Congressional history and this

Court’s interpretation of the L.M.R.D.A. that Congress in-

tended to encourage the ILA, as all unions, of its own ac-

cord to remedy as many election violations as possible

without the Government’s intervention, in order not only

to preserve and strengthen unions as self-regulating insti-

tutions, but also to avoid unnecessary expenditure of the

Secretary of Labor’s resources. Hodgson v. Local 6799,

Steelworkers, 403 U.S. 333, 339 (1971); Calhoon v.

Harvey, 379 U.S. 134, 140 (1964); Wirtz v. Local 153,

Glassblowers Association, 389 U.S. 463, 470-473 (1968).

See S. Rep. No. 187, 86th Cong., 1st Sess. 21 L. Leg. Hist.

417, 2 U.S. Cong. and Admin. News 1959, 2318, at 2334,

2338. The chronology shows that the Secretary’s Com-

plaint in March, 1974, followed the ILA’s Executive Coun-

cil’s investigation and final determination in the preceding

month. Consistent with the District Court’s determination,

the post-election rights and claims under Title IV, included

in the ‘‘private plaintiffs’? Complaint, were within the

exclusive authority of the Secretary to litigate, except for

Ree Oem. | ome 6 mow:

their right to intervene in the Secretary’s sui

: y’s suit. Trbovich

v. Mine Workers, 404 U.S. 537 (1972) (App. A at 9a).

The ILA and its Trustee, Field, did not contest the

presumptive invalidity of the Trusteeship during the

course of the proceedings below. Rather, within the letter

and spirit of the Act, they maintained that the legitimate

object of the ILA, qua a labor organization, was for con-

tinuation of the Trusteeship pending the outcome of a

clearly valid election. The District Court itself acknowl-

edged that the termination of the Trusteeship was con-

tingent upon, and inextricably tied to the handing over

of the rei f

pep ins of autonomy to duly elected officers. (App. A

In accordance with ‘the final sentence of 29

§ 464(c), when the Court rendered its Decision in Anco

ber, 1974, it was limited to the exercise of one of the fol-

lowing options: a) to dismiss the Complaints or to sus-

pend action thereon in order to permit the ILA’s second

election, which it had enjoined on April 30, 1974, to go

forward forthwith to completion under the Court 's over-

sight ; b) to direct and to conduct a Court-supervised elec-

tion in the manner of the District Courts in Schonfeld v

Raftery, 271 F Supp. 128 (S.D.N.Y., 1967), aff’d., 381 F.2d

446 (2nd Cir., 1967) and Brennan v. United Mine Workers

475 F.2d 1293 (C.A.D.C., 1973), or e) to appoint a monitor

to oversee the conduct of the Local's affairs, or similar

“‘condition’’, pending the outeome of

’ ’ on t fe

described elections. cin

The District Court bypassed all of these i

authorized and prescribed alternatives by prec

the ILA’s determination and turning over control of the

Local to the individual Respondents. It necessarily fol-

lows that the District Court’s actions mistakenly created

the very situation whereby the unsupervised October 1975

election under the direction and supervision of persons

erroneously installed by the Court in the first instance

was permitted to occur. This Court has recognized that

incumbents, in their normal self-interest, are in positions

to influence the outcome of an election in which they, or

those who they support, intend to be candidates for office.*

Wirtz v. Local 153, G.B.B.A., swpra at 475. Further taint-

ing the election was the Court’s denial of the Local’s

prospective right to determine MecDonald’s eligibility to

run in the 1975 election, another off-shoot of the District

Court’s decree in derogation of union prerogatives. The

Appellate Court specifically, but erroneously, found that

this was not even an issue before it. (App. A et 47a) It is

abundantly evident from the foregoing that the Court of

Appeals has permitted Respondents to successfully proffer

the fruits of the District Court’s Order as a barrier to its

review of that very Order.

The Court of Appeals engaged in an oversimplification

when it equated certified elections under the supervision

of District Courts with the “validation” of an election

already held prior to litigation. In so doing, the Court

expanded the District Court’s remedial jurisdiction under

Title I11, without statutory warrant or legal precedent.**

It plainly overlooked the exclusively Title IV rationale

relied upon by the Secretary and by the District Court to

seat McDonald, et al., in office, declaring it to be nothing

more than a “collateral determination on the eligibility

of two candidates.” (App. A at 55a)

Petitioners respectfully submit that the appellate

court’s own rationalizations for the District Court’s De-

* J,ocal 795’s incumbent President, McDonald, was able to ap-

point Nominating and Election Committees; to participate in

the setting up of the criteria for eligibility through the actual

conduct of Local elections; and to influence voters by actions in

and from positions of authority, both intra-union and in the daily

work life of the Local’s members, including the handling of their

grievances.

** Tt solely relies on a District Court case, Burch v. Interna-

tional Association of Machinists & Aerospace Workers, 337 F.Supp.

308 (S.D.Fla., 1971), a pre-election, Title I action.

cision and Order neither cured the latter’s intrinsic de-

fects nor diminished its effects on the 1975 election. If

anything, it compounded the Petitioners’ dilemma. For

even if this Court should find installation of the officers

to have been proper, the appellate court’s concurrent

direct or tacit approval of the District Court’s award of

back pay and McDonald’s eligibility in the 1975 election

poured salt on the Union’s wounds. Neither of those

issues was collateral or requisite to termination of the

Trusteeship under the provisions of Title III of the Act.

Accordingly, the standards set by this Court for deter-

mination of mootness would be severely diluted, if not

totally undermined, by the Decision below. Aetna Life

Insurance Co. v. Haworth, 300 U.S. 227, 240-241 (1937);

United States v. Munsingwear, Inc., 340 U.S. 336 (1950).

Moreover, the Questions Presented, in the context of in-

terpretations and erroneous implementations of the Act in

question, are important not only to the ILA but to all

parent unions whose Trusteeships and internal affairs are

subject to judicial challenge. The ILA remains aggrieved

by the unwarranted judicial interference with its internal

procedures which the district and appellant courts ignored

under circumstances not sanctioned by the Act. The Courts

below have compelled the TILA, the Local’s members, as

well as the employers in the industry to accept, recognize

and deal with officers found not to have been duly elected

by the Local’s membership, whose installation in office has

enabled them to perpetuate their incumbency in the recent

election. In Wirtz, supra, this Court took note that by

channeling members through the internal appellate proc-

esses, Congress hoped to accustom members to utilizing

the remedies made available within their own organization.

The effects on the Union’s authority and jurisdiction under

its Constitution to hear and to determine protests to its

election has been undermined. The Decision below un-

doubtedly will encourage union members to run to the

Courts for succor rather than to appropriately use avail-

able union procedures for relief.

These factors present ample justification for considera-

tion by the Court, notwithstanding mootness. See Bren-

nam v. Silvergate District Lodge No. 50, International A.

of M. and A. W., 503 F.2d 800 (9th Cir., 1974). The ap-

proach of the 9th Circuit appears correct and justified.

We respectfully urge the Court, in view of that Circuit

Court’s interpretation of Wirtz, as well as the factors cited

above on the history of the appeal, to hear and rule on the

unquestionably serious and far-reaching substantive issues

which have been properly raised in the course of the appel-

late process.

2. In the event the case is deemed to be mooted, the Dis-

trict Court’s Order must be vacated and a new election

should be directed. Portions of the Supplemental

Order awarding damages and attorney fees should like-

wise not be permitted to stand.

Consistent with the procedures enunciated and followed

by this Court (U.S. v. Munsingwear, Inc., 340 U.S. 36,

39 (1950); U.S. v. W. T. Grant Co., 345 US. 629, 632

(1953)), it has been the established practice in the Fifth

Cireuit and other Courts of Appeal in dealing with Civil

cases which became moot in the appellate process, to re-

verse or to vacate the Judgments below and to remand

them with directions to dismiss. See, e.g., Parker, etc.

v. Laundry, Dry Cleaning & Dye Houseworkers Union,

Local 218, et al., 517 F.2d 936 (5th Cir., 1975); Knapp v.

Baker, etc., 509 F.2d 922 (5th Cir., 1975); Westberry v.

Gilman Paper Company, et al., 507 F.2d 206, 216 (5th Cir.,

1975); Merkey, et al. v. Board of Regents, 493 F.2d 790

(5th Cir., 1974); Hollon v. Mathis Independent School

District, et al., 491 F.2d 92 (5th Cir., 1974); Colpo v.

Highway, Truck Drivers and Helpers, Local 107, Team-

sters, 305 F.2d 362, 363 (3rd Cir., 1962). In view of these

precedents, the Fifth Circuit’s selective treatment of the

issues raised before it on Petitioners’ Appeal is novel and

patently unwarranted. Its award of incidental relief was

derived by resurrecting and interpreting facts in conten-

tion before the District Court which it earlier found no

longer subject to litigation and by ruling against Peti-

tioners on the very issues raised by them on Appeal. Thus,

it withdrew the judicial mantle from Petitioners and then

overreached in the opposite direction to extend it over the

individual Respondents.

Aside from the inherent ambivalence and inconsistency

in the Court’s approach, there is an appearance of a dual

standard of due process and protection of the laws, which

should tend to offend the sensibilities of the Justices of this

Court. It smacks of obvious and exceptional error. For

this reason, we further urge the Court, in its supervisory

role over the Federal Judiciary, to take corrective action to

avoid a clearly bad precedent as well as to undo an unduly

harsh impact on the Petitioners who are directly affected.*

These consequences will follow if this Petition is not

granted, even for the limited purpose of reversing or re-

manding this case for appropriate, consistent treatment of

damages and fees.

Assuming, arguendo, that the issues of incidental relief

were rendered moot, additional grounds remain for is-

suance of a Writ. As already noted, the Court of Appeals

has permitted the District Court to exceed its authority

by awarding retroactive pay to MeDonald and declaring

him a candidate in futuro, ancillary to the termination of

the Trusteeship. The Courts below further erred in award-

ing attorney fees against the Local by misapplying the

“common benefit” theory, articulated in Mills v. Electric

* It is ILA’s premise that inasmuch as its Trusteeship was im-

properly terminated and the 1975 election was faulted, a Court-

supervised election of Local Officers should be conducted under

laboratory conditions in accordance with the ILA Constitution and

Local regulations.

Auto Lite, 396 U.S. 375, 392-394 (1970); Hall v. Cole, 412

U.S. 1 (1973), and other cases set forth in Appendix A at

49a-55a. Unlike Plaintiffs in the fore-cited cases, the mem-

bers of Local 795 were neither directly nor indirectly bene-

fited. To the contrary, the Order imposed upon them of-

ficers found by their own union not to have been duly elected

in a clouded election. The Decision further casts a “chill”

upon members who choose to vindicate their objections and

grievances through established union procedures. It erodes

the foundation of union self-government. It renders a

substantial disservice to the union as an institution and

to its members individually by creating instability, not only

in local democratic processes but throughout the Union’s

constitutionally-established appellate processes on which

they relied in good faith. It violates fundamental statu-

tory and legal principles.*

3. The Appellate Decision further extends the award of

legal fees to a situation in which a Court disagrees

with the judgment of a union. This is contrary to the

requirement of Alyeska that egregious bad faith must

be shown.

The Court of Appeals has misconstrued or miscon-

ceived the “bad faith” exception to the General American

Rule in making the ILA, its Trustee and Oliver, jointly

and severally liable for attorney fees. Alyeska Pipeline

Service Company v. The Wilderness Society, et al., 421

U.S. 240 (1975); McCandless v. Furlaud, 296 U.S. 140

(1935). Though the Courts, as Respondents, have attrib-

uted insinuous motives to the ILA and to Field, their reci-

tations of the facts are more indicative of neglect than of

culpability. Unlike the International Union and Trustee

* It is noteworthy that nowhere in their Complaint haye the

individual Respondents ever sought to benefit other than them-

selves. They have constantly addressed their communications to

the ed and to President Gleason in terms of acting in their

own i

in Schonfeld v. Raftery, supra, where the Courts found

“clear and convincing” proof that neither proceeded in

good faith in establishing or maintaining that Trustee-

ship, Field did act affirmatively to rectify the “cancer”

that existed prior to his appointment. He acknowledged

in open Court the shortcomings of his administration and

admitted that he would have proceeded otherwise if he had

it to do all over again. He terminated Oliver and the em-

ployees of Local 795 and took over sole control of the

Union and its election procedures to avoid further claims

of impropriety or undue influence in the re-run election.

Moreover, the facts herein are clearly distinguishable

from the contrasting situations posed by Vaughan v. Atkin-

son, etc., et al., 396 U.S. 527 (1962), Universal Oil Products

Company v. Root Refining Company, 338 U.S. 575 (1945),

Bell v. School Board of Powhatan County, 321 F.2d 494

(4th Cir., 1963). See F. D. Rich Co., Inc., et al. v. United

States for the Use of Industrial Lumber Company, Inc.,

417 U.S. 116 (1974). The Court will realize from the State-

ment of the Case, supra, that the ILA could neither have

ignored nor have rubber-stamped the protests received to

the October, 1973 election. The Act recognizes the obliga-

tion of the Union in the first instance to investigate elec-

tion irregularities and to resolve them. Even if it should

be claimed that the ILA was dilatory in initiating its in-

vestigation, it is clear that prior to the filing of the Secre-

tary’s Complaint, all of the necessary proceedings en-

visioned by the Statute were completed in accordance with

due process. The Decision to prolong the Trusteeship

was not made by Field and certainly not by his agent

Oliver; rather, it was by the concurrence of the District

President, President Gleason and of the entire Executive

Council consisting of in excess of 20 Vice Presidents

throughout the Union’s jurisdiction. The Decisions, as the

record, are devoid of any evidence that the ILA’s investi-

gating committee or the forenoted Officials acted collu-

sively, surreptitiously or illegally.

The disparity between the Secretary and the District

Court’s findings and those of the ILA does not, in and of

itself, indicate the latter’s error or the former’s correct-

ness. For even if the ILA’s Officials were mistaken in

adopting their committee’s recommendations, neither stat-

ute nor precedent entitled the District Court or, for that

matter, the Secretary of Labor, in a due process context,

to substitute their judgment for that of the ILA. If any-

thing, the facts tend to indicate that the ILA exercised a

high degree of care under the circumstances. Had the

Union summarily rejected the protests and recommenda-

tions, particularly in the context of a withdrawal of a 2%,

year Trusteeship and the attendant major changes in the

Seniority System, ete., the ILA and its Officials would have

been subject to severe criticism and censure.

It follows that the elements necessary to establish the

‘‘overriding considerations’’ envisioned by this Court in

Mills and Hall, supra, as well as the extreme abuses in

Yablonski v. United Mine Workers of America, 466 F.2d

424 (D.C.Cir., 1972), are conspicuously absent. The awards

of attorney fees ostensibly distort this Court’s guidelines

in Alyeska, swpra. In view of the Fifth Circuit’s misap-

plication of the ‘‘bad faith’’ exception, clarification ap-

pears necessary. S.E.C. v. United Benefit Life Ins. Co.,

387 U.S. 202, 207. Otherwise, Courts throughout the Fed-

eral system and particularly within the Fifth Circuit’s

jurisdiction who rely on precedent for direction and guid-

ance, will be misled, while a gross injustice will have been

done to Petitioners. This Court, in the exercise of its

interpretive responsibilities, should not sanction the Deci-

sion below to rest undisturbed.

CONCLUSION

’ For the foregoing reasons it is respectfully sub-

mitted that this Petition for a Writ of Certiorari

should be granted.

Respectfully submitted,

THomas W. Guizason, JR.

17 Battery Place, Suite 600

New York, NY 10004

(212) 425-3240

Attorney for Petitioners

Of Counsel:

Txomas W. Gueason, Jr.

Herzi 8S. Exsensrapt

APPENDIX A

Decisions Below.

Unrrep States Disrricr Court

for the Southern District of Mississippi, Southern Division

Civ. A. Nos. 738-263 (R), 874-55 (R)

MicHae. J. McDonacp et al.,

Plaintiffs,

Harowip Oxrver et al.,

| Defendants.

_—_

Peter J. Brennan, Secretary of Labor, United States

Department of Labor,

Plaintiff,

Loca Unton 795, INTERNATIONAL LONGSHOREMEN’S

ASSOcIATION, et al.,

Defendants.

Decided September 26, 1974.

Oprnion OF THE CouRT

Dan M. Russe.t, Jr., Chief Judge.

On November 23, 1973, Michael J. McDonald and other

individually named plaintiffs, claiming to be the duly

elected officers of Local 795, International Longshore-

—————————

Decisions Below.

men’s Association, AFL-CIO, at Gulfport, Mississippi,

filed this action against Harold Oliver and other individual

hold-over officers, Local 795, Fred R. Field, Jr., Trustee

over the local and the ILA. Claiming jurisdiction under

Titles T and III of the Labor-Management Reporting and

Disclosure Act, 29 U.S.C. §§ 401, 462, 463 and 464, plain-

tiffs charge in Count La conspiracy among ILA, its officers

and agents, Field and Oliver to perpetuate the trustee-

ship over Local 795, coercing and intimidating a majority

of the members and especially its duly elected officials,

plaintiffs herein, and to prohibit by illegal means the

installation and formal recognition of plaintiffs as the

duly elected officers of Local 795 in an election held on

October 6, 1973. Plaintiffs charge that the defendants in-

dividually and in coneert and under the cover of the trus-

teeship have eliminated jobs for members not espousing

defendants’ views, refused payment of dues by members

who chose to run for office against the trusteeship regime,

refused work to members who opposed the corrupt prac-

tices of the trusteeship, and redrafted rules and regula-

tions so as to destroy any semblance of democratic govern-

ment or fair dealing within the local union. Plaintiffs .

allege that any exhaustion of intraunion remedies required

decisions by those already committing wrongs and illegal

acts and served only to perpetuate and compound the

inequities. In Count II, plaintiffs allege that on May 1,

L971. Local 795 was placed in trusteeship. In a trustee’s

report to the Department of Labor under date of October

31, 1972, a copy being attached to the complaint, the re-

port reflects that the trusteeship resulted from charges

brought by a majority of the elected officials and more

than 100 members of Local 795, the charges including but

not limited to: (a) the president of the local (Oliver)

solicited new members into the local and industry when

there was insufficient work available; (b) the president

Decisions Below.

(Oliver), by controlling the appointment of foremen, con-

trolled the hiring practices of a company with which the

local had a contract to the detriment of older members

with seniority in favor of new men in the industry; (c)

upon complaints to management that the foremen were

ignoring seniority, management stated that it had nothing

to do with the hiring of foremen; (d) the president

(Oliver), in collusion with management, usurped the right

of all other officers and members of the local to bargain

collectively; and (e) the president (Oliver) failed and

refused to seek arbitration of grievances as provided for

in the collective bargaining agreement after being re-

quested to do so by members or other officers of the local.

This report also shows that a committee appointed by

the Executive Board of ILA recommended that the local

be placed in trusteeship, finding that (a) the president

(Oliver) never had any intention of implementing the

seniority provisions of the agreement; (b) the superin-

tendents and supervisors were selecting employees with-

out regard to seniority; and (c) the president (Oliver)

appointed supervisors to head election committees to main-

tain control over the local; and, finally, the report shows

that the committee’s recommendation was adopted by the

ILA Executive Council, the trusteeship having been estab-

lished on May 1, 1971. The complaint alleges that the

charges have not been remedied during the course of the

trusteeship, but to the contrary have multiplied in that

the trustee, defendant Field, appointed defendant Oliver

to act as president and as his agent throughout the trustee-

ship, and that they have furthered and compounded the

grievances resulting in the trusteeship. Plaintiffs charge

that the continued existence of the trusteeship is in viola-

tion of Section 461 et seq. of 29 U.S.C. and is for the sole

purpose of continuing in office those whom the trusteeship

should have eliminated. Plaintiffs also aver that they

Decisions Below.

were individually elected to the offices of the local and

have sought to perform their duties, but have been un-

lawfully denied their right to do so by the actions of the

defendants, and that the defendants, under the guise of the

trusteeship, its cessation being long overdue, have usurped

the powers, rights and privileges guaranteed to plaintiffs

and other members of Local 795 by the constitution of the

defendant International and the laws of the United States.

In Couni ITT of the complaint, plaintiffs charge that Oliver,

individually and as agent of the trustee, in an effort to elim-

inate competition in union elections, illegally and in an

undemocratic way sought to change the constitution and

by-laws of the local union on July 7, 1973, a short while be-

fore an election of officers was scheduled to bring an end

to the trusteeship.

For relief, plaintiffs, among other things, asked for a

temporary order restraining defendants from interfering

with plaintiffs’ rights to hold office, for preliminary and

permanent injunctive and declaratory relief dissolving the

trusteeship, preserving union assets and records, declaring

the election of October 6, 1973, valid, and for reimburse-

ment of all salaries and expenses improperly incurred dur-

ing the trusteeship.

At an early hearing, the Court denied plaintiffs’ motion

for a temporary restraining order and set the matter for

a trial on the merits beginning January 15, 1974, meanwhile

urging the parties to try to resolve their differences through

union procedures. Prior to the scheduled hearing, the

trustee, Local 795 and ILA filed a motion to dismiss on the

crounds that plaintiffs had failed to exhaust their internal

union remedies, and that plaintiffs were not proper parties

in that their remedy is within the exclusive jurisdiction of

the Secretary of Labor. In their answer, defendants ad-

mitted the jurisdiction of the Court under Title I but denied

jurisdiction under Title IIT as to all allegations concern-

Decisions Below.

ing the trusteeship, and, as to all allegations concerning

the election (Title IV), again pled that the Secretary of

Labor had exclusive authorization to initiate legal action.

Affirmatively, defendants pled that a committee had been

appointed to investigate plaintiffs’ complaints, including

the validity of the election of October 6, 1973, and to re-

port its findings to ILA’s President and Executive Council;

and that it was conceivable that the report could contain

findings and recommendations for relief equivalent to that

sought by plaintiffs. Defendants amended their answer to

plead that all plaintiffs’ allegations pertaining to their

denial of employment are exclusively within the jurisdic-

tion of the National Labor Relations Board which had pre-

viously ruled against McDonald on such charges. Defend-

ants further pled that the ILA investigation of the Octo-

ber 6, 1973, election shows that it should be set aside on the

grounds that McDonald and E. J. Lebeau were not quali-

fied nominees for elective office, ineligible members voted,

and observers were not permitted to observe within the

polis.

The hearing began as scheduled, with the Court finding

that it had jurisdiction under Title I as it pertains to union

members’ voting rights and under Title ITI inasmuch as

Section 464(a), 29 U.S.C., specifically provides that a

member may bring an action under Title III. The Court

heard numerous witnesses for plaintiffs and received

documentary evidence before recessing the cause to June

11, 1974.

On March 25, 1974, the Secretary of Labor filed his ac-

tion, styled and numbered above, against Local 795 and

ILA, invoking jurisdiction under Title IV, Section 482(b),

29 U.S.C. The Secretary alleged that Michael J. McDonald,

plaintiff in Cause No. 738-263(R), and a member in good

standing of Local 795, by a letter of October 22, 1973, ad-

dressed to Thomas W. Gleason, ILA president, protested

Decisions Below.

the ILA’s failnre to install the officers duly elected on Octo-

ber 6, 1973; that Gleason acknowledged McDonald’s pro-

test by letter of October 24, 1974, advising that an investi-

gation of the matter would be made. On January 17, 19/4,

McDonald and others appealed from the findings of the

committee appointed to investigate, and have invoked all

available remedies without obtaining a final union decision

within three months. Pursuant to Section 482(a)(2), 29

U.S.C., MeDonald and others filed a complaint with the

Secretary. Pursuant to 29 U.S.C., Section 521 and in ac-

cordance with 29 U.S.C., Section 482(b), the Secretary in-

vestigated and found probable cause to believe that Sec-

tion 481(e) was violated in that the defendants denied

members in good standing the right to hold office through

defendants’ failure to install the officers elected on October

6, 1973, and that said violation may have effected the out-

come of the election. The Secretary, for a second cause

of action relating to Title III, alleged that the ILA im-

posed trusteeship has continued far beyond its eighteen

months’ presumed validity; that by letter of February 16,

1973, members of the local had complained to the Secre-

tary that the trusteeship should be dissolved; that the

Secretary has investigated and found probable cause to

believe that a violation of Title III has occurred and has

not been remedied in that a continuation of the trusteeship

is not necessary for a purpose allowable under Section 462,

29 U.S.C.

On April 29, 1974, the Court granted the motion of plain-

tiffs in Cause No. 73S-263(R) to consolidate the two ac-

tions, and denied defendants’ motion to dismiss the private

action on the grounds that the Secretary’s action was

exclusive. On April 30, 1973, the Court granted the Secre-

tary’s motion restraining defendants from conducting a

new election scheduled by defendants for May 25, 1974,

but denied the Secretary’s motion for a preliminary injunce-

7a,

Decisions Below.

tion for the immediate installation of the officer, who won

at the October 6, 1973 elections until the Court had had an

opportunity to hear all of the evidence.

In their answer to the Secretary’s complaint, the de-

fendants denied all material allegations and affirmatively

pled that Local 795 is not a proper party defendant in

that its ‘authority has been superseded by the imposition

of the trusteeship; that the Secretary has no authority

under Title IV to seek the installation of officers; that as

a result of protests filed to the validity of the election

of October 6, 1973, said protests were investigated, and as

a result ILA found that the election was invalid; ILA

ordered the continuation of the trusteeship pending a new

election; and that the Secretary and private plaintiffs

were advised of these matters.

Following the January, 1974 hearing, this Court held

additional hearings of several days each in June and July,

1974 until all parties had completed their evidence. Plain-

tiffs were allowed to amend heir complaint by alleging

that they had exhausted all union remedies prior to

their charges of violations of Titles I, 111 and IV. The

Secretary renewed his motion for an immediate installa-

tion of officers, and defendants renewed their motion to

dismiss on the grounds that the Secretary has no author-

ity to seek the installation of officers, his authority being

limited only to the investigation of an election as to which

protests have been filed. The Court reserved ruling on

both motions. Meanwhile, defendants agreed to hold the

new election they had ordered in abeyance pending this

Court’s decision.

The Court is persuaded that the private plaintiffs have

exhausted their union remedies, to no avail, on their alle-

gations and proof of violations of Titles I and TIT. There

is evidence that numerous complaints were made of de-

niais of job opportunities and the failure of defendants to

Decisions Below.

recognize plaintiffs’ voting rights by voiding the October

6, 1973, election, and to the continuance of the trusteeship.

There is also evidence that during the trusteeship, com-

plaints made directly to the ILA president were referred

both to Field and Oliver for disposition, the very persons

against whom the complaints were made. It is accepted

law that“. . . . where there is reason to believe that resort

to an appeal within the union would be futile it is not

necessary to follow such a course as a prerequisite to legal

action.” See Libuttt v. DiBrizzi, D.C., 233 F. Supp. 924,

wherein the above was quoted from Farowitz v. Associated

Musicians of Greater New York, 2 Cir., 330 F.2d 999; also

see Calagaz v. Calhoon, 5 Cir., 309 F.2d 248; and Schonfeld

v. Rafferty, 2 Cir., 381 F.2d 446, affirming D.C., 271 F.

Supp. 128. Libutit is also authority for private plaintiffs’

contention under Title I that the voiding of the election

by ILA and Field is an infringement of plaintiffs’ rights

as union members to nominate and vote for qualified can-

didates. Also, see Mamula v. Local 1211, D.C., 202 F.Supp.

348, rev. 3 Cir., 304 F.2d 108, wherein the lower Court

said: “To bar a union member from holding office if

nominated and elected is an unequivocal interference with

rights of a union member, which must invoke the provi-

sions of the Act as they relate to union members.” This

Court is aware of the holding in Calhoon v. Harvey, 379

U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190, wherein the alle-

gation of union members that eligibility requirements

deprived them of the right to nominate candidates, was

dismissed as not within the limited scope of Title I, and

that this decision followed Libutti and Mamwa. However,

the allegations in the ease sub judice are much broader

in scope than the relief sought by individual plaintiffs

in Libutti, Mamula and Calhoon. Here, although the named

plaintiffs are officers claiming the right to be seated,

they sue on behalf of not only themselves as union mem-

Decisions Below.

bers, but on behalf of a majority of the union members

whose votes were nullified by the actions of defend-

ants. Further, defendants »ot only concede that the

end of the trusteeship under Title III is overdue, but

concede jurisdiction under Title I. All parties and the

Court agree on the futility of dissolving the trusteeship

until such time as there are properly elected officers to

take over management of the union. The Court has no

hesitancy, therefore, in finding that it has jurisdiction

over the Title I and Title III allegations of both private

plaintiffs and the governnment.

On the other hand, it is equally clear that private plain-

tiffs’ rights under Title IV are within the exclusive author-

ity of the Secretary to litigate except for the holding in

Trbovich v. Mine Workers, 404 U.S. 528, 537, 92 S.Ct.

630, 30 L.Ed.2d 686. In that case involving a suit by

the Secretary to set aside an election, and, where private

plaintiffs sought to intervene in order to set forth addi-

tional grounds for voiding the election, Justice Marshall

found nothing in the legislative history of Title [VY or in

the Act itself to bar intervention by a union member so

long as his claims were limited to those presented by the

Secretary. Therefore, if the Secretary has a right to his

claim under Title IV, plaintiffs were properly allowed to

amend their declaration in the consolidated suits by al-

leging the same grounds as the Secretary “>r relief under

Title TV: that is, the installation of validly elected officers.

Although the Secretary in his Title IV count has not

pled a run of the mill action challenging an election, he

does maintain that defendants’ action in voiding the elee-

tion of October 6, 1973, is a violation of Title IV in that

members in good standing (private plaintiffs) who were

the winners of the election, have been denied the right to

hoid office contrary to the intent and meaning of Section

481(e), 29 U.S.C. The Court agrees. However, in order

10a

Decisions Beiew.

to do so, and before considering the evidence as presented,

the Court finds that, if the election of October 6, 1973, was

valid, then the setting aside of this election by the de-

fendants and their ordering of a new election under con-

ditions and qualifications set by the ILA and Local 795

may indeed “affect the outcome of an election.” See

Wirtz v. Teamsters Industrial & Allied Emp. U. Local No.

73, D.C., 257 F.Supp. 784. The Court further finds that

it is not required to order a new election, but, may under

Title | and its own inherent equity powers, validate the

October, 1973 election if it in turn is found to have been

valid.

The evidence in this case presents two sharply disputed

issues: (1) whether or not plaintiff McDonald was an

eligible candidate for office, and (2) whether the Octo-

ber 6, 1973 election was in all other respects valid. The

Court has reviewed all of the testimony and exhibits and

limits its findings to such evidence as pertains to these

two issues, first giving a resume of the evidence leading

up to the trusteeship and highlighting Field’s testimony

pertaining to the trusteeship.

In 1958 three separate trust funds were established and

evidenced by agreements titled “Pension Plan and Trust,”

“Welfare Plan and Trust” and “Vacation Plan and

Trust,” executed by Local 795, whose membership is

white, and Local 1303, International Longshoremen’s As-

sociation, AFL-CIO, whose membership is black, on be-

half of both union memberships, and by Ryan Stevedoring

Company, and Walsh Stevedoring Company, Inc., the em-

ployers. These plans were established as provided for in

collective bargaining agreements for the benefit of union

members with all funds being contributed to by the em-

ployer. The plans provide for the appointment of four

trustees with full management powers, one representing

each local, and one representing each of the above em-

lla

Decisions Below.

ployers and an administrator of the funds, the trustee’s

terms being for one year. In 1970, Sealand Terminal

Corporation became an employer under the bargaining

contract but, in the absence of representation on the Board

of Trustees of the plans, refused to contribute thereto.

Instead, Special Account No. 051-863-8 was established in

a local bank on which Harold C. Oliver’ and Wilson

Evans II, presidents of the locals and trustees of the

plans, respectively, and Captain Thomas P. Toomey, a

vice-president of Sealand, were authorized to withdraw

funds. Rivalry between defendant Oliver and plaintiff,

McDonald, as far as this record shows, began in Novem-

ber, 1970 when McDonald defeated Oliver in Local 795’s

election for trustee of the funds. At that time and until

after the union trusteeship was imposed, Oliver, in addi-

tion to his salary as president of Local 795 and other

emoluments, was paid the sum of $220.00 per week to

handle claims under the plans, plus expenses, as was also

Evans, these amounts being paid from plan funds from

October 1, 1970, until Field stopped this practice during

the trusteeship. McDonald in his testimony said that

after becoming a trustee of the plans he tried to find out,

among other things, why the contributions of Sealand,

then and now the largest contributor, were in a special

account, drawing no interest,?> and why some claims

against the plans were not being processed. McDonald

also admitted that he questioned some of Oliver’s items

of expense and refused to sign checks in payment of them.

The affairs of the union reached such a stage in the latter

part of 1970 that members of the union, including some

2 Oliver was elected president of Local 795 in 1962, continuing

in that office until removed by Field in February, 1974.

2 Although McDonald had been elected a trustee, he apparently

had no control over the special account, Oliver retaining his au-

thority along with Evans and Toomey to make withdrawals.

12a

Decisions Below.

of the plaintiffs here, directed a “Bill of Particulars,” to

the ILA Executive Council outlining lengthy charges

against Oliver, a copy being in evidence as plaintiffs’

Exhibit 4. On December 9, 1970, the same union members

directed a request to Gleason, ILA president, asking him

to invoke a trusteeship over Local 795. This request was

accompanied by formal charges against Oliver registered

with tie loeal’s recording secretary, with copies going to

district and international officers, and was further accom-

panied by a list of 103 signatures of union members join-

ing in the complaints against Oliver. Gleason informed

Oliver of the charges and of a hearing to be held on the

charges on January 21, 1971. As a result of these charges

and the hearing, a trusteeship was invoked, effective

May 1, 1971.

Fred R. Field, Jr., general organizer for ILA, was ap-

pointed trustee over Local 795 by ILA president Gleason.

Field is also on the ILA executive council, holding many

other offices at the district and international levels. As

organizer, Field represents ILA along the eastern and

southern shores of the United States, in Canada, South

America, the Dominican Republic, Nassau, parts of South

and Central America and Puerto Rico. He is president of

the International Banana Handlers Council, controlling all

local unions that handle bananas. He is a member of the

[LA contract board which negotiates bargaining contracts

throughout the country. He is a busy union man, and ad-

mittedly spent little time on the trusteeship in Gulfport.

He testified at length. Inasmuch as plaintiffs and defend-

ants admit that the end of the trusteeship is long overdue,

it is unnecessary to detail his testimony concerning his

service as trustee except to refer to pertinent admissions.

He received no salary as trustee, but his expenses for his

trips from his residence and office in New York City to

Gulfport and return were borne by the local. Upon his

13a

Decisions Below.

appointment, he did not remove Oliver and the other local

union officers from office, and admitted he was criticized

heavily for his failure to do so. He directed Oliver to

take charge of all union records, check books, receipt books,

minutes, ete, to secure them, to change the locks of the

union hall and allow no one in but Oliver and his secre-

tary. He professed not to know how Oliver carried this

out. He was familiar with the “bill of particulars” and

other charges filed against Oliver heard by an ILA commit-

tee which recommended the trusteeship. As a member of

the ILA execu...ve council he voted for the trusteeship and

was appointed as trustee by Gleason who instructed him

to take possession of all of the local’s records, remove

such local officials as he deemed necessary correct the trust

fund abuses, and to remedy the charges against Oliver.

Instead, he turned the records over to Oliver. He removed

McDonald as trustee of the pension, welfare and vacation

plans, as having “no clout” and substituted himself, ad-

mitting that he took McDonald’s place to effectuate the

changes McDonald was urging. He acknowledged that

Oliver drank heavly and was in trouble with respect to the

trust funds. He admitted that he did not instigate a union

seniority plan until late 1973. He admitted that he had

not attended a local union meeting during the trusteeship,

his only attendance in Gulfport being at meetings of the

trustees of the plans. and in negotiating bargaining con-

tracts, and that he ultimately named Oliver as his alter-

nate at the trustee meetings. He admitted that he sent

Oliver to union meetings and conventions as an observer

at the local’s expense. He acknowledged that he knew in

1971 that the companies owed the trust plans over $500,-

000.00, and that in September, 1972 the amount had in-

creased to $658,000.00, exclusive of the special account

maintained by Sealand. He said that by virtue of the col-

lective bargaining agreement of 1972 that Sealand became

a party to it, and the special account was transferred to the

atin

l4a

Decisions Below.

union’s trust funds. As of 1973, he was unaware of any

sums due and owing the trust fund except for current ob-

ligations. He assumed the administrator of the funds

would know, saying it was the duty of the administrator

to collect the funds. He admitted that he had not advised

litigation to collect any sums due and owing, and, as of the

date of his testimony, he did not believe suit was necessary.

He claimed credit for stopping the monthly payments from

trust funds to Oliver and Wilson Evans for handling

claims, and he admitted he had raised Oliver’s union salary

from $325.00 to $375.00 a month, but thought it had been

cut back. He admitted that the seniority plan had not been

effected, but promised that it would be, and that it would

be integrated with the black local union. He admitted that

the charges by union members that they could not get work

would have been solved with an effective seniority plan,

and admitted that Local 795 through Oliver refused to co-

operate. He admitted that in February, 1974 he formally

removed all hold-over officers from office and appointed

Oliver as his clerk under instructions to take orders only

from Field himself. He admitted that he cancelled the in-

stallation of the officers elected in October, 1973. Of par-

ticular note, by originally retaining the same local officers,

Field said he hoped that they could solve the local prob-

lems under his direction, but he admitted his plan had

failed.

McDonald’s Eligibility for Office

A dispute arose during the trial as to which constitution

and by-laws govern eligibility of union members to run for

office. The local’s 1959 constitution and by-laws contained

no eligibility requirements for holding office, in the absence

of which defendants concede that the ILA constitution and

by-laws would prevail. That constitution and by-laws

adopted at Miami Beach, Florida on July 19-22, 1971, ap-

15a

Decisions Below.

proved by the Executive Council on February 11, 1972,

provides in Article XIII that each local union shall elect

by secret ballot among its members in good standing, a

president, a vice-president, a recording secretary, a finan-

cial secretary or treasurer, an auditing committee, an ex-

ecutive board and such other officers and committees as

the local union may deem necessary for the conduct of its

affairs, for a term of two years. It further provides that

subject to such other reasonable eligibility requirements

as a local union may impose, no person shall be eligible

for office unless he has been a member in good standing for

at least one year preceding the date of his nomination and

working or seeking work, at the trade or craft covered by

such local union or employed by the local, except that the

local union in its by-laws may provide for longer periods

of eligibility up to but no more than three years. The

preceding ILA constitution and by-laws of 1963 contained

similar provisions. As stated above, the 1959 local’s con-

stitution and by-laws contained no eligibility requirements

for holding office; nor did it provide for how long officers

should serve. At the time of the trusteeship, the local

union was operating under the 1959 constitution and by-

laws. Terms of office were for three years, this apparently

being provided for by the union’s minutes or custom and

practice. On June 28, 1973, Field, in a report of his trus-

teeship to the local union and its members, stated, among

other things that he was arranging for printed copies of

the May, 1972 bargaining agreement, the seniority plan,

the debiting system for GAI Fund (not otherwise identi-

fied) and the constitution and by-laws of Local 795 to be

mailed to every member. He also set up a schedule for a

membership meeting on July 7, 1973, at which time the

seniority plan would be explained; distribution of seniority

cards on August 4, 1973; the implementation of the senior-

ity plan by August 13, 1973; the nomination of officers on

l6a

Decisions Below.

September 1, 1973; election of officers on October 6, 1973;

and installation of officers on November 3, 1973. The evi-

dence through numerous witnesses is that Oliver called for

a membership meeting on July 7, 1973, not to explain a

seniority plan as outlined in Field’s letter, but for the

membership to adopt a new constitution and by-laws—this

with no prior notice and with no copies having been fur-

nished the members. The proposed constitution and by-

laws were read and moved for adoption with no questions

or discussion allowed. According to the first vote, by a

show of hands, passage failed. Oliver ordered a sec

ond vote, with members voting for passage on one side

of the union hall, and those opposed on the other side

of the hall. On this vote, approval was declared. This

undated constitution and by-laws, a copy being in evidence

as plaintiffs’ Exhibit 9, provides that no member shall be

eligible for election to any office unless he has been a

member in good standing for at least three years. Prior

to the end of the trial, defendants conceded that this

constitution and by-laws were void and ineffective inas-

much as such had not received the required approval of

the ILA Executive Council. At the membership meeting

of September 1, 1973, for the nomination of officers, a

transcript of same being in evidence as defendants’ Ex-

hibit 17, although Oliver made no attempt to qualify or

limit the nominees, it is of record herein and obvious to

the Court that defendants, through Oliver and Field, used

this 1neans to discourage votes for McDonald in the en-

suing election, and, when McDonald won anyhow, used

McDonald’s purported lack of qualifications as a protest

following the election. Although MeDonald’s protest of

Field’s failure to install the winning candidates was ac-

knowlged by Gleason, it is also clear to this Court that

Gleason appointed a three-member committee to hold hear-

ings in Gulfport during the month of January, 1974 on the

17a

Decisions Below.

basis of protests to the election engineered by Oliver and

that this committee largely based its recommendation for a

new election on its finding that McDonald was ineligible

under the 1973 constitution and by-laws which defendants

now admit was void. A transcript of this hearing is in

evidence as defendants’ Exhibit 30. As alleged in defend-

ants’ amended answer, cited above, the committee ap-

pointed by Gleason to hear protests to the election recom-

mended that the election be set aside on the grounds that

McDonald and LeBeau were not qualified to run for office,

ineligible members voted, and observers were not per-

mitted to observe within the polls. LeBeau’s qualifications

were challenged on the ground that he was alleged to be

a supervisor in the employ of Sealand at the time of the

election in violation of the 1973 ILA constitution and by-

laws which prohibited his ca. idacy. In the Secretary’s

investigation dealt with later herein, this charge was found

to be untrue, the Secretary’s investigation having verified

that LeBeau resigned from his supervisory position

several weeks prior to the election.

As to the eligibility of McDonald, he testified that his

job on the dock, that of a car sealer, was phased out in

1971. His testimony, supported by that of other plaintiffs’

witnesses, was that thereafter, despite his reporting to the

dock for “shape-ups,” defendant Oliver, through threats

made to the various foremen, saw to it that McDonald was

“left on the hill,” i.e., that he was not picked up on any

gangs working at the docks. McDonald conceded that in

1972 and 1973 he was employed by the Board of Super-

visors of Harrison County, Mississippi, in District Three,

as a means of livelihood for himself and family, but that

he nonetheless during the year prior to the October 6, 1973,

election repeatedly reported to the docks and was refused

work. He also stated that it was not unusual for members

of the local to work on the dock and hold a job with the

18a

Decisions Below.

county. Defendants’ witness, Leonard Winstead, a time-

keeper for District Three, stated that McDonald was fore-

man of a work gang on county roads in 1972, paid by the

month; that after the union election in October, 1973, Me-

Donald was relieved of his job as foreman and assigned

with another man to duty on county bridges where they

could work out their own schedule. Winstead acknowl-

edged that McDonald checked in with him in the mornings,

usually by telephone, and thereafter Winstead did not

necessarily know where McDonald was. He knew that Mc-

Donald previously had worked on the pier and said it was

not unusual for county workers to also work on the pier.

Raymond Bricknell, with 32 years’ experience working on

the pier and a member of Local 795, testified that he for-

merly was foreman of a gang; that McDonald was then

working a heavy shift, shoveling bauxite from the hold of

ships; that Oliver requested him not to work McDonald,

and when he, Bricknell, refused to fire McDonald, Brick-

nell’s gang was laid off for five weeks. Ronald W. Foley,

a member of Local 795 for 13 to 14 years, has been a fore-

man during 1971, 1972 and 1973. He testified that when

MecDonald’s job as a ear sealer was phased out, Oliver

told the witness not to hire MeDonald saying he, Oliver,

did not want any foremen to hire McDonald. Thereafter

Foley only hired MeDonald in his gang when he was short

of men. Foley said that Oliver named numerous others

that he did not want Foley to give work to, being those

who did not support Oliver, and that he, Foley, took Oliver’s

remarks as a threat to his own job and that Oliver said he

had more power under the trustee than when he was presi-

dent. Since the election, Foley stated that men who did not

support Oliver were laid off. Lawson Schmitt, a member

of Local 795 for 12 years, is a head supervisor on the

docks. He stated that Oliver had not directly told him not

to hire MeDonald, but that he got “the word” through Sea-

19a

Decisions Below.

land’s superintendent and assistant superintendent. It

would make this opinion unnecessarily long to note the

testimony of all plaintiffs’ witnesses who said that Mc-

Douald did report for “shape-ups” at the dock and defend-

ants’ witnesses who said they had not seen him there. The

Court does, however, note the testimony and conclusion of

the Secretary’s investigator.

Mr. Thomas W. Sutton, a compliance officer with the De-

partment of Labor for 14 years, testified that he was as-

signed to investigate the trusteeship imposed on Local 795

and to investigate plaintiffs’ protest that they were denied

office after having won in the October, 1973 election. Sutton

said he first came to Gulfport following a complaint of

February 16, 1973, directed to the trusteeship. At the

conclusion of his investigation, no action was taken by the

Secretary on ILA’s representation of July 28, 1973, that

the trusteeship would end following a new election. After

plaintiffs’ complaints to the Secretary of January 24 and

February 6, 1974, that defendants had refused to install

the winning candidates, Sutton immediately returned to

Gulfport to investigate the circumstances surrounding the

election. He went first to Oliver and conducted interviews

with Oliver,’ union members referred to him by Oliver, the

newly elected officers and other union members. He spe-

cifically made himself available to any and all members.

He examined ILA and local constitutions and by-laws.

He relied on Oliver’s statement that the 1959 local constitu-

tion and by-laws were in effect, but, as they contained

no provisions for eligibility for office, Sutton concluded

that the 1973 ILA constitution and by-laws would control.‘

With particular reference to McDonald’s eligibility, Sutton

* Oliver, through counsel, refused to give Sutton a written state-

ment.

* Oliver had by then been convinced by counsel that the July 7,

1973, constitution and by-laws were void.

a eee

20a

Decisions Below.

determined from the receipt books that McDonald’s dues

were paid up to date and from his numerous interviews

with union members that McDonald had indeed diligently

sought work as a longshoreman within a year prior to

his nomination as president and that he was eligible for

nomination. The Court has considered all the testimony

and evidence pertaining to MeDonald’s eligibility and agrees

with the government’s investigator that McDonald was for

years a full time employee as a longshoreman on the docks ;

that in 1971 his permanent job was phased out; that there-

after he worked or sought work as a longshoreman; that

defendant Oliver was primarily responsible for his lack of

work; that McDonald, for a livelihood, was compelled to

seek other work during the year prior to his nomination,

notwithstanding which he still went to the docks during that

period seeking work; that he was otherwise a member of

the local union in good standing with paid up dues.

Validity of the Election Otherwise

In accordance with Field’s time schedule, and a separate

letter of August 15, 1973, from Field to the local member-

ship both in evidence, a meeting was called for September

1, 1973, for the purpose of nominating candidates for the

election to be held on October 6, 1973. Candidates were

nominated as reflected by minutes of the recording secre-

tary, Richard Clark, government’s Exhibit 3, and by a

transcript of the meeting, defendants’ Exhibit 17. As re-

flected by the latter, Oliver announced that each candidate

would receive a list of eligible voters prepared by Charles

Logan, Richard Clark and Mrs. Bradley,’ and that an ILA

* Elsewhere in this ease, Logan has been identified as the Cer-

tified Publie Accountant regularly employed by the local union,

Richard Clark as recording-secretary, and Mrs. Bradley as the

office secretary.

2la

Decisions Below.

committee would pass on the candidate’s qualifications.

Oliver temporarily turned the meeting over to Monroe

Kimball, chairman of the election committee, who identi-

fied other members of the committee, all appointed by

Oliver, and Kimball read the voting rules adopted by the

committee, a copy of which ‘s in evidence as plaintiffs’

Exhibit t6. One of these rules provided that only members

in good standing as of September 1, 1973, would be quali-

fied to vote. Another provided that each candidate would

be allowed one poll attendant, the attendant to be seated

during the counting of the vote. Oliver testified that cus-

tomarily the recording secretary compiled a list of the

members eligible to vote, after checking same against dues

receipts. Clark testified that he attempted to prepare such

a list as best he could because Oliver had taken all his rec-

ords and had them locked up. Oliver at first denied this

and later, when on the stand for the second time, admitted

that he had deprived Clark of the records except for one

day, September 1, 1973. A copy of the list prepared by

Clark, defendants’ Exhibit 8, listing 374 members, was

handed out by Oliver to each candidate several days prior

to the election. Oliver also testified that he was instructed

by Field to have the accountant prepare a list, defendants’

Exhibit 9. This list, dated September 28, 1973, was not

furnished the candidates, but was used in the election. It

contains 375 names, the first name, that of Thomas Achee,

not having been on Clark’s list; otherwise the names are

identical. On his list, the accountant noted 12 members

receiving retirement benefits who paid no dues, 23 mem-

bers who were listed by the local as injured, and who were

behind in the payment of dues, and 10 otherwise active

members whose dues were not paid. He also placed aster-

isks by the names of 53 members whose dues were not de-

posited until September 24, 1973. Clark testified at length

as to this last group saying that these were members who

* Se <.@

22a

Decisions Below.

paid their dues to him during August, 1973, either at the

union hall or while he was at home recuperating from hos-

pitalization, at a time when he was denied use of the dues

receipt books by Oliver; that he made notes of those who

paid and ultimately deposited the funds in the union ac

count as was recognized by the accountant. There is no

dispute among any of the witnesses that retirees had al-

ways voted without payment of dues and that they were

eligible. At the time the election committee met on Sep-

tember 22, 1973, the committee having before it Clark’s

list, and its own minutes, government’s Exhibit 4, reflect

that the committee agreed that all retired members could

vote. As to those on the injured list, the committee chair-

man, Kimball, defendants’ witness, testified that there were

more of these names than usual, and, in an attempt to be

fair, the committee, as shown by the minutes, determined

that the injured members would be notified by registered

mail that they would have until September 28, 1973, to

bring their dues up to date. For all others the cut-off date

would be September 1, 1973. Kimball testified that the

committee felt that if it was wrong in allowing injured

members to pay by September 28, 1973, and thereby be

eligible to vote, then the ILA officials who were to conduct

the election could say so. This committee also noted in its

minutes that Thomas Achee should have been included as

an eligible voter, as he was on the accountant’s list.

Despite Oliver’s promises that an ILA committee would

pass on the candidates’ qualifications before the election,

two executive board members, one retired, of the South

Atlantic & Gulf Coast District of ILA were instructed to

observe the election. Both testified, being Ewell St. Amant,

a former president of an ILA local union in New Orleans,

Louisiana, as well as a former member of the district ex-

ecutive board, with previous experience in observing union

elections, and E. R. Dennies, who succeeded him in both

gg eee

23a

Decisions Below.

offices. They arrived in Gulfport early before the election

and met with the election committee, the nominees and

members. St. Amant said that he asked if there were any

objections to the accountant’s voter list and there were

none. He received no protests during the election or after-

wards, saying that he received numerous compliments that

the election was fair in every respect. He confirmed that

the candidate’s attendants or observers were asked to

leave the hall during the voting, but that all were invited

in for the counting in accordance with the election com-

mittee’s voting rules. None protested. He and Dennies

reported the winning candidates to Oliver and to the presi-

dent of the district council, Ralph A. Massey, who had

instructed them to observe the election. Dennies, also with

experience in observing elections, said he was furnished

the accountant’s eligibility list and the election commit-

tee’s rules. The committee chairman, because there were

so many observers, asked Dennies to remove the ob-

servers from the polling area and he did. The observers

were present for the counting. He admitted that some

voters protested the removal, but none of the candidates

did. There were two challenged ballots which were sealed

and remained in his possession still sealed until he re-

turned them to Oliver in Gulfport. He had never seen

Field and thought Oliver was the trustee.

Sutton, the government investigator, testified as to his

investigation of tie election. In addition to examining the

various constitutions and by-laws as to which he said

Oliver told him the local’s constitution and by-laws adopted

in July, 1973 controlled and later admitted they did not,

Sutton called upon Oliver for all records pertaining to the

election. They were locked in the ballot box which had to

be broken open, no one apparently having a key, including

Oliver. Sutton said that 400 ballots were printed, and of

the 375 names on the accountant’s list, 319 ballots were

24a

Decisions Below.

counted, 2 were challenged, and 79 were unused. He com-

pared Clark’s voter eligibility list with that of the ac-

countant and found only the omission of the name of

Achee from Clark’s list. He said the 1959 local constitu-

tion and by-laws contained no provision as to the eligibility

of retirees, sick and injured to vote, but he confirmed that

retirees customarily had been allowed to vote. He com-

pared the accountant’s eligibility list with the list of

voters receiving ballots, defendants’ Exhibit 10, and said

of the 12 retirees, 9 voted. Of the 23 on the injured list,

8 responded to the notice of the election committee by

paying their dues, 7 of these casting ballots. He inter-

viewed Richard Clark at length, checking late deposits

against dues receipts, and satisfying himself that all de-

posits after September 1, 1973, represented dues paid

before that date. In the records Sutton examined were the

two challenged votes, still sealed. By comparing the num-

bers on the outside of the envelopes with the same num-

bers on the list of those who received ballots, he determined

the identity of those casting the challenged ballots. He

interviewed both and subsequently found that one was

eligible to vote and the other not. He stated that the

eligible vote would not have changed the election of any

officer. Sutton in the presence of Oliver, Oliver’s attorney,

McDonald and several other union members re-counted

the ballots. The totals shown as added to Richard Clark’s

minutes of the meeting when candidates were nominated,

as compared with Sutton’s re-count, showed different

totals in some instances, but in no case did the variance

change the result of the election. The results according to

Clark’s tabulations and those of Sutton’s re-count are

shown in the following columns:

25a

Decisions Below.

Clark’s Sutton’s

Minutes Re-Count

President

Harold Oliver 115 115

*Michael McDonald 136 136

E. J. LeBeau 66 66

A. A. (Ace) Cunningham 2 2

Vice President:

Ed Searborough 83 82

Ivy P. Hebert 17 17

Ronald H. Bentz 51 52

*Eugene Ladner 115 116

Herman Clark 47 49

Seeretary-Treasuer:

Paul E. Bergeron 79 70

Rudolph Tiliman 113 113

*Norman J. Ladner 115 115

Lewis Garlotte, Jr. 17 19

#Chris Hyden 1

Recording Secretary:

*Richard Clark 212 212

Fiverett Necaise 100 100

#Chris Hyden 1

Sergeant-at-Arms:

Ed C. (Jack) Perrone 94 94

Dale Paige 72 92

*Tony Lamberg 108 124

Trustees (Three)*®

Ravmond Lizana 91 91

Felix Brown 27 27

Fred T. Ladner 68 68

*Elmer Ford 109 109

Lynn E. Bangs 87 87

Ronald (Dinky) Davion 59 58

Homer (Gobbler) Vogle 93 95

John (Hamhock) Coleman 51 50

EK. N. Welch 32 32

*Bernie Ray Saucier 101 101

*Eugene Niolet 151 151

E. J. LeBeau (withdrew)

* Indicates winners.

# Was not nominated but had a vote cast for him.

* These trustees are the executive board of the local and are not

the trustees of the three trust plans, whose election is separate, or

supposed to be.

26a

Decisions Below.

From the various interviews with and statements taken

from union members who supported Oliver and those who

supported McDonald, Sutton found that no protests were

made about observers being asked to leave the voting

area during the balloting until well after the votes had

been counted, when observers were present. He acknowl-

edged that the removal during voting may have been a

technical violation of the Labor-Management Reporting

and Disclosure Act, but that such did not affect the tally.

All were asked to leave indiscriminately, and none pro-

tested before the election. Sutton stated that Field said

it was customary for retirees and the disabled to vote

without paying any dues, and, in any case, Sutton found

that the seven votes cast by those on the injured list would

not have changed McDonald’s victory over Oliver.

The Court has carefully reviewed all the live and docu-

mentary evidence concerning the election, and finds that

Michael] McDonald was an eligible candidate. His dues

were paid up, and the evidence was convincing that within

a year of his nomination he had sought work in the trade

despite Oliver’s successful attempts to block his employ-

ment. The Court finds that the finding by the ILA execu-

tive committee which met in Gulfport on January 9, 1973,

that MeDonald was not eligible, if based on the qualifica-

tions set out in the subsequently admitted, void, local con-

stitution and by-laws of 1973, was in error. This

committee’s finding that LeBeau was a supervisory em-

ployee and therefore ineligible was also in error, as evi-

dence before this Court shows that he resigned his

supervisory job weeks before the nominations. The Court

further finds that defendants’ objections to the election

on the grounds that observers were not allowed in the

voting area while the voting was taking place, and the

fact that seven members on the injured list, whose dues

were not paid until September 28, 1973, were allowed to

27a

Decisions Below.

vote, are not well founded. The seating of the observers

during the counting of the ballots was in full compliance

with the voting rules which were read to the membership

meeting of September 1, 1973. No objection was made

thereto until after the voting took place on October 6,

1973. The Court finds that the rule was exercised indis-

criminatorily and did not affect the outcome of the elec-

tion. The Court finds that the action of the election com-

mittee in giving those on the injured list extra time in

which to pay their dues before the election was known to

Oliver and other candidates, none of whom made any objec-

tion thereto, and was in reality a concerned effort on the

part of the election committee to have a fair election; and

further finds that the seven who voted, even if their ballots

were cast for a losing candidate, could have affected no

office but that of secretary-treasurer and sergeant-at-arms,

the losers of which made no objection appearing in this

record. There is a stipulation of record that, as to tle

election of Norman J. Ladner, elected Secretary-Treasurer,

Tony Lamberg, elected Sergeant-at-Arms, and Elmer Ford,

elected trustee, there were no protests at all.

The Court has given due consideration to defendants’

alternative request for a new election conducted under the

auspices of the Secretary of Labor, and finds that such

would now be fraught with obstacles in determining of

voter eligibility in a new election, and would clearly be

prejudicial to the candidates who won in the October 6,

1973, election.

The Court therefore validates the election of October 6,

1973 and directs that the winning candidates be forthwith

installed. The Court specially finds that the 1973 ILA

constitution and by-laws applied to the election, and there-

fore the terms of office should be, and are hereby found

to be, for two years, said terms to have commenced run-

ning from October 6, 1973. The Court finds that the con-

28a

Decisions Below.

tinuation of the trusteeship is no longer warranted and

directs that it cease upon the installation of the duly elected

officers heretofore listed, and that defendant, Field, and

defendant, Oliver, forthwith turn over all local union prop-

erty in their possession to the appropriate officers whose

election is herein validated. This permanent injunctive re-

lief is directed to and binding on all named defendants,

their officers, agents, servants, employees and attorneys.

Although there was abundant evidence that Oliver re-

ceived illegal weekly remuneration from the pension, wel-

fare and vacation funds until Field put a stop to it, plain-

tiffs have not furnished the Court with adequate proof of

identifiable amounts. Although his convention and au-

tomobile expenses paid by the local union may have been

exhorbitant, there is no evidence upon which the Court

can distinguish reasonable items from unreasonable, be-

sides which, Field, as trustee, had authority to order these

expenses paid. Accordingly, the Court assesses no dam-

ages against Oliver, Field or the local union, the latter of

which has already paid these expenses. It would be a futile

gesture to direct the local union to pay again what it has

already paid.

The Court reserves ruling at this time on an allowance

of plaintiffs’ attorney fees, primarily for the reason that

there is no evidence presently before the Court as to any

sums plaintiffs may already have paid their counsel.

With this one reservation, the Court considers this

opinion and the order to be entered herein final for pur-

poses of appeal.

An appropriate order may be submitted incorporating

this opinion by reference, with costs assessed to the defend-

ants.

S/Dan M. Russell, Jr.

Unrrep Srates Districr Jupcr

Darep: September 26, 1974

29a

Supplemental Opinion and Order.

UNITED STATES DISTRICT COURT

For tae SourHern District or Mississipi,

SouTHern Drvision

Civ. A. Nos. 73S-263(R), 874-55(R)

Micuaet J. McDonaxp et al.,

Plaintiffs,

Harovp O iver et al.,

Defendants.

Peter J. Brennan, Secretary of Labor,

United States Department of Labor,

Plaintiff,

Vv.

Loca. Union 795, InteRNaTIONAL LONGSHOREMEN’S

ASSOCIATION, et al.,

Defendants.

Entered: October 24, 1974

Supplemental Opinion and Order.

Following a hearing on objections by defendants to an

order, attached hereto as Exhibit “A”, proposed by private

plaintiffs and the Secretary of Labor in the above styled

consolidated cases, and the Court having considered the

proposed order together with its opinion of September 26,

1974, finds that (1) defendants’ objections to Paragraph 2

of the proposed order awarding back pay to Michael

McDonald for the time he would have served as president

30a

Supplemental Opinion and Order.

of the local union had he been installed in November, 1973;

(2) defendants’ objections to Court costs being assessed

against defendants Field and Oliver as well as against the

ILA and local union; and (3) defendants’ objections to the

award of attorney fees on behalf of private plaintiffs should

be and hereby are overruled for the reasons given in the

Court’s opinion at the conclusion of the hearing.

As to McDonaid’s back pay, the total amount should be

reduced by his income from the Harrison County Board of

Supervisors during the same period of time. As to the

amount of such fees, the Court finds that the sum of $40.00

per hour was stipulated to between private plaintiffs and

defendants as a reasonable fee for such services. The

Court having examined the total hours attributed to pri-

vate plaintiffs’ action, including the preparation of plead-

ings, office time and trial time, and plaintiffs’ suecess under

counts based on Titles I and IIT of the Labor-Management

Reporting and Disclosure Act of 1959, as amended, to-

gether with their cooperation with the Secretary of Labor

under his counts based on Titles III and IV of said Act;

and the Court further finding that plaintiffs’ suit was nec-

essary for the relief obtained, finds that plaintiffs are en-

titled to the full sum of $10,000.00 as attorneys fees, based

on 250 hours x $40.00 per hour, and the sum of $1,207.07,

as expenses, these sums to be awarded jointly and sev-

erally against the ILA, Field, Oliver and the local, and to

include Court costs.

Accordingly, the proposed order, Exhibit A, is adopted

and approved, and this supplemental opinion and order is

hereby made a part thereof by reference, and both the pro-

posed order and this supplemental opinion and order shall

be and is the order of this Court.

So ORDERED, ADJUDGED AND DECREED this the 24th day of

October, 1974.

s/ Daw M. Russet, Jr.

United States District Judge

3la

Exhibit “A” to Supplemental Opinion and Order.

In THE Unrrep Srartes District Court

FOR THE SoUTHERN District or MISSISSIPPI

SouTHERN Drvision

Crviz Action No. 73S-263(R)

( CoNSOLIDATED )

Mica. J. McDonatp; Evcene Lapver; Ricnarp CLarK;

Norman J. Lapner; Tony Lamperc; Eimer Forp; Bernie

Ray Saucier; and Evcene NIo.et

CoMPLAINANTS

Vs.

Harotp Outver; Frep R. Frevp, Jr.,; [vy Hersert; RuDOLPH

Truman; Lynn E. Banas; J. D. ScarsoroucH; Samvev E.

Moore; INTERNATIONAL LonGSHOREMEN’s AssocraTION; and

Gutrport Loca. 795 (LA

DEFENDANTS

AND

Perer J. Brennan, Secretary of Labor, United States

Department of Labor

PLAINTIFF

vs.

Loca, Unston 795, LyrernationaL LoncsHOREMEN’s ASsocia-

tion, AFL-CIO

and

INTERNATIONAL LoNGSHOREMEN’s Association, AFL-CIO

DEFENDANTS

32a

Exhibit “A” to Supplemental Opinion and Order.

ORDER

The issues in this cause having been tried before the

Court without a jury, the evidence of all parties hereto

having been heard, and the Court having rendered an

Opinion on September 26, 1974 constituting its findings of

fact and conclusions of law, it is this 24 day of October,

1974,

ORDERED, ADJUDGED AND Decreep as follows:

The aforesaid Opinion of the Court dated September 26,

1974 is incorporated by reference into this Order and made

a part hereof.

The persons set forth in the aforesaid Opinion at pages

25 and 26 as having received the highest number of votes

for the respective offices, to-wit: President, Michael Me-

Donald; Vice President, Eugene Ladner; Secretary-Treas-

urer, Norman J. Ladner; Recording Secretary, Richard

Clark; Sergeant-at-Arms, Tony Lamberg; and Trustees

(three), Eugene Niolet, Elmer Ford, and Bernie Ray

Saucier, are the duly elected officers of the defendant

Local 795 for a two-year term of office, said term having

commenced running on October 6, 1973. The President’s

salary for the aforesaid Michael McDonald shall also have

commenced and shall be paid by Local 795 beginning on

October 6, 1973.

IT.

Upon installation of the duly elected officers set forth in

paragraph II above, which installation shall be undertaken

33a

Exhibit “A” to Supplemental Opinion and Order.

forthwith, defendant, International Union, shall discon-

tinue the Trustee*hin that it has assumed over defendant

Local 795 and all rights, privileges and powers autonomous

otherwise available to Local 795 under defendant Interna-

tional Union’s Constitution and By-Laws shall be restored.

IV.

The defendants shall forthwith turn over, transfer and

give possession of all records, keys, equipment, buildings

and other property of Local 795 to the aforesaid officers.

The defendants shall not hereafter, pursuant to Section 1

of Article VII of Local 795’s July 7, 1973 Constitution and

By-Laws, determine or declare Michael McDonald to be

ineligible for office or election thereto because of any fail-

ure, omission, or lack of welfare benefit eligibility which

precedes his being installed as President of Local 795 in

accordance with paragraphs II and III above.

VI.

Defendant International Union, its officers, agents, serv-

ants, employees, attorneys, and all persons in active con-

cert or participation with them, are enjoined and restrained

from further violating the provisions of Title III of the

Labor Management Reporting and Disclosure Act of 1959,

as Amended (29 U. S. C. 461, et seq.).

Vil.

Defendant International Union shall file terminal trus-

tee reports as required by 29 CFR, Sees. 408.7 and 408.8.

34a

Exhibit “A” to Supplemental Opinion and Order.

vil.

The costs of this action shall be assessed to the de-

fendants.

IX.

The Court’s ruling on allowance of plaintiffs’ attorney

fees is reserved until a hearing can be held on October 22,

1974, in Gulfport, Mississippi.

OrveReED, this 24 day of October, 1974.

s/ Dan M. Russet

United States District Judge

35a

UNITED STATES COURT OF APPEALS

For tHe Firrs Circurr

No. 74-3731

MicuaeL J. McDonatxp et al.,

Plaintiffs-Appellees,

Haroip Oxiver et al.,

Defendants-A ppellants.

Joun T. Dunwop, Secretary of Labor,

U.S. Department of Labor,

Plaintiff-Appellee,

Loca Union 795, INTERNATIONAL LONGSHOREMEN’S

Association, AFL-CIO, et al.,

Defendants.

Argued October 7, 1975 Decided January 14, 1976

Before Gewin, CoLeman and Geer, Circuit Judges.

C. T. Sykes, Jr., Gulfport, Miss.. Thomas W. Gleason,

Herzl S. Eisenstadt, New York City, Victor H. Hess, Jr.,

New Orleans, La., for defendants-appellants.

Alben N. Hopkins, Gulfport, Miss., for McDonald.

36a

Robert E. Hauberg, U. S. Atty., Jackson, Miss., for

Brennan.

George Palmer, U. 8. Dept. of Labor, Birmingham, Ala.,

William Kanter, Barbara L. Herwig, Paul Blankenstein,

App. Sece., Civ. Div., Dept. of Justice, Washington, D. C.,

for plaintiffs-appellees.

Appeal from the United States District Court for the

Southern District of Mississippi.

CoLeman, Cireuit Judge.

The various defendants appeal the judgment of the Dis-

trict Court, rendered under Titles I, III, and IV of the

Labor Management Reporting Disclosure Act of 1959, 29

U.S.C. Sections 401, et seq,’ mandatorily enjoining compli-

? Title I

This is the “Bill of Rights” for union members, establishing

certain basic democratic principles which must be adhered to by

labor organizations.

_ Title 29 U.S.C. § 411 guarantees equal voting and participation

rights, freedom of speech and assembly, freedom from improper

assessments, protection of the right to sue, and safeguards against

improper disciplinary action.

The remedial provision for violation of these rights appears in

§ 412, which reads as follows:

Any person whose rights secured by the provisions of this

subchapter have been infringed by any violation of this sub-

chapter may bring a civil action in a district court of the

United States for such relief (including injunctions) as may

be appropriate.

e & & eo e Sd

Section 411(a)(4) further provides that a member may be

required to exhaust reasonable hearing procedures (but not to

exceed a four-month lapse of time) within the union before insti-

tuting legal proceedings.

Title III

Title III of the Act, 29 U.S.C. § 462, provides for the imposi-

tion of a trusteeship by the international over a local to correct

(footnote continued on following page)

37a

ance with the results of a union election in which the plain-

tiffs were chosen to be officers of Local 795 of the Inter-

national Longshoremen’s Association, dissolving a trustee-

ship over that Local, enjoning defendants from declaring

McDonald ineligible for Local office, enjoining further vio-

lations of Titie III, and awarding both back pay and at-

torney fees, McDonald v. Oliver, 400 F.Supp. 660 (S.D.

Miss.1974).

Appellees cross appeal, asserting inadequacy of the

awarded attorney fees and challenging the two year lenrth

of the term of office prescribed by the District Court.

Except as to that portion of the appeal which has been

rendered moot, the Judgment of the District Court is af-

firmed on both direct and cross appeals.

(footnote continued from preceding page)

corruption or financial malpractice, assure performance of collec-

tive conenietnn agreements, restore democratic procedures, or

otherwise carry out the legitimate objects of the labor organization.

Section 464 establishes a presumption that a trusteeship invoked

in conformity with the union’s procedural requirements and rati-

fied after a fair hearing by the executive board is valid for 18

months. After that period it is presumed invalid and its discon-

tinuance will be decreed unless the labor organization shows by

clear and convincing proof that its continuation is necessary for

one of the above purposes.

Section 464(a) establishes the following civil action for enforce-

ment :

(a) Upon the written complaint of any member or sub-

ordinate body of a labor organization alleging that such or-

ganization has violated the provisions of this subchapter (ex-

cept section 461 of this title) 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 com-

plainant, 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.

Any member or subordinate body of a labor organization af-

fected by any violation of this subchapter (except section 461

(footnote continued on following page)

38a

Facts of the Case

Local 795 is one of two branches of the International

Longshoremen’s Association (ILA) operating in the Gulf-

port, Mississippi area. Internal dissension in the Local

reached a peak in 1970, during Harold Oliver’s second

term as president, when all the other officers and 103 union

members petitioned the International president to impose

(footnote continued from preceding page)

of this title) 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.

Title IV

Title IV generally relates to election improprieties and places

the exclusive authority to sue for post-election redress in the hands

of the Secretary of Labor.

Title 29 U.S.C. §481(e) provides for reasonable nomination

opportunities, the eligibility of every member in good standing to

be a candidate and hold office, the right to vote for or support the

candidate of one’s choice without being subject to penalty or dis-

ciplinary action, advance notice to all members of elections, and

conducting elections in accordance with the union’s by-laws and

| except to the extent they are inconsistent with Title

Section 482, the enforcement provision, permits a union mem-

ber who has exhausted his internal remedies or who has invoked

available remedies without obtaining a final resolution within three

months after their invocation, to file a complaint with the Secre-

tary of Labor. The challenged election is presumed valid pending

a final decision. Upon investigating the complaint, the Secretary

may bring a civil action against the labor organization for a vio-

lation of the subchapter. If the court finds that an election has

not been held within preseribed time limits or that a violation of

§ 481 may have affected the outcome of an eleetion, the court must

declare the election void and direct the conduct of a new one

under the Secretary's supervision. The Secretary then certifies

the names of those elected, and the court enters a decree to that

effect.

Section 483 specifies that this remedy for challenging an elec-

tion is exclusive.

39a

a trusteeship on the Local. The purpose of the petition,

of course, was to relieve Oliver of his presidency. Among

the specifications in the bill of particulars submitted to an

International special committee were that (1) Oliver had

solicited new members into the Local at a time when there

was insufficient work available for the current members

of the Local; (2) he had controlled the appointment of

foremen and thereby the hiring practices of management,

to the deteriment of senior members of the union; (3) in

collusion with management, he had usurped the right of

other officers and members of the Local to engage in col-

lective bargaining; and (4) he had failed and refused to

seek arbitration of grievances as provided for in the col-

lective bargaining agreement after having been requested

to do so by members and officers of the Local.

There were complaints, also, concerning the management

of Local 795’s Pension, Welfare and Vacation Trust

Funds. Specifically, as a trustee for the Fund, McDonald

objected to the $220 per week Oliver and the president of

795’s sister Local 1303 were receiving as compensation

for handling claims against the Funds.

After a hearing, the special committee recommended

that Local 795 be placed in trusteeship. The committee

found that Oliver never had any intention of implementing

the seniority previsions of the Local’s collective bargain-

ing agreements, that employees were being selected for

work without regard to seniority, and that Oliver had ap-

pointed supervisors to head the Local’s election commit-

tees in order to insure his continued control of the Local’s

affairs. The ILA Executive Council then voted to invoke

the trusteeship.

In April of 1971, the ILA president appointed the

Trustee. He was Fred Field, a general organizer and vice-

president of the ILA. Field was authorized to assume im-

mediately the duties of trustee, to take all steps necessary

40a

to correct any abuses in the Local’s pension and welfare

fund operation, to negotiate and place into effect a sen-

iority system for the protection of all longshoremen, and

to remove, if necessary, any and all officers of the Local.

Oliver’s alleged mismanagement of the Local’s affairs

and abuse of his powers as president caused the imposition

of the trusteeship. Trustee Field acknowledged that Oliver

drank heavily and was in trouble with respect to the trust

funds. Nevertheless, Field did not remove Oliver from

office. On the contrary, he delegated virtually all of his

duties to Oliver. As should have been expected, this course

met with dissatisfaction. By September, 1972, the amount

owed by companies to the trust funds rose to over $658,000,

with no legal attempt at collection. This was not all. The

seniority plan was not effected, Oliver traveled to union

meetings and conventions as an observer at the Local’s

expense, and the rosters of Local 795 and black Local 1303

had not been integrated.

On February 16, 1973, a complaint was filed with the

Secretary of Labor, in which members of the Local as-

serted that the trusteeship had not ‘‘accomplished the pur-

pose for which it was established and under present con-

ditions there is no just cause to continue the trusteeship”.

The complaint also asserted that the continuance of the

trusteeship was detrimental to the membership of the

Local. Accordingly, the complainiag members requested

that the trusteeship be brought to an immediate conclusion,

and an election for new officers be held at once.

The Secretary investigated the complaint and found

probable cause to believe that no valid purpose would be

served by a continuance of the trusteeship which had been

in existence for more than 18 months. However, during

the course of the investigation, the Secretary had informa-

tion that the ILA intended to end the trusteeship and had

set up a schedule for the election of new officers. Based

4la

upon this information, the Secretary determined for the

time being not to pursue legal action to terminate the

trusteeship.

In June of 1973, Field set up the following schedule for

resumption of the Local’s autonomy.

(1) July 7, 1973—Membership meeting to explain Sen-

iority Plan.

(2) August 4, 1973—Distribution of seniority cards.

(3) August 13, 1973—New hiring system under Senior-

ity Plan to go into effect.

(4) September 1, 1973—Meeting for nomination of of-

ficers of Local 795.

(5) October 6, 1973—Election of officers.

(6) November 3, 1973—Installation of new officers,

This timetable for dissolution of the trusteeship was

adhered to through the October 6 election, except that in

the meeting of July 7, Oliver chose not to explain the

Seniority Plan but sought approval of a new constitution

and by-laws which would have had the effect of dis-

qualifying both his opponents for the Local presidency.

Because the constitution and by-laws were not approved

by the International prior to election, they were deemed

not to have any effect upon the eligibility of the candidates

for the various offices.

On October 6, MeDonald received 136 votes for presi-

dent, Oliver received 115, and LeBeau 66; McDonald’s

plurality, 21.

After the winners were certified, a number of protests to

the election were filed by individual members of the Local,

such as that (1) McDonald was ineligible to hold union

office because he had not been working or seeking work as

42a

a longshoreman for the year prior to the election, contrary

to the provisions of the International’s constitution and

(2) LeBeau, who had been working as a supervisor for

the Sealand Terminal Company, had not resigned this

capacity sufficiently prior to the election, contrary to the

ILA constitutional provision prohibiting union officers or

candidates from holding supervisory positions.

The District Court found that McDonald had been seek-

ing work but was unable to find employment on the docks

because of pressure imposed by Oliver upon gang foremen

not to hire him. The Court also found that when LeBeau

ran for the presidency he was no longer working as a su-

pervisor and was therefore eligible for the office.

On October 22, 1973, through his attorney, McDonald

wrote ILA President Gleason requesting information

about the election protests so that ‘‘appropriate measures

may be taken to insure the installation of duly elected

officers”. On October 24, Gleason wrote McDonald that

he was awaiting a recommendation from the president of

the South Atlantic & Gulf Coast District of the ILA before

taking action. The following day, the district president

telegraphed Gleason that the scheduled installation of of-

ficers should be stayed pending further investigation. The

International’s president concurred in the recommenda-

tion, and the ILA Executive Council voted to stay the

installation of officers. The members of the Local were

notified that a committee of three ILA vice-presidents had

been appointed to investigate the election.

Because of the ILA’s decision to stay the scheduled in-

stallation, plaintiffs filed suit on November 27, 1973, under

Titles I and III of the LMRDA seeking, among other

things, their installation as officers and an end to the

trusteeship.

In the meantime, the ILA continued its investigation of

the alleged election irregularities. On the basis of hearings

43a

held '\y the International in eariy January, the committee

concluded that the October 6 election should be declared

invalid. Specifically, the comittee found that the following

violations of the constitution and by-laws of the Local and

of the International had influenced the election: (1) mem-

bers who were not qualified were nominated and received

votes for the office of president (McDonald and LeBeau) ;

(2) .neligible persons were allowed to vote in the election;

and (3) pall watchers for the various candidates were asked

to leave the voting area before all the ballots had been

cast. The committee also recommended that a new elec-

tion be held under the auspices of the ILA.

Upon learning of these rulings, the plaintiffs appealed to

ILA President Gleason on January 17, 1974. When they re-

ceived no response, they lodged a complaint with the Secre-

tary of Labor on January 24, 1974. The following day an

investigation was commenced by Thomas Sutton, a Labor

Department official. Sutton reported that he found no inval-

idating improprieties in the election and that duly elected

officials of the Local were being unjustly kept from assum-

ing their positions. Based upon the determination that

there was probable cause to believe that continued mainte-

nance of the trusteeship over the Local and failure to

install the duly elected officers were violative of Titles ITI

and IV of the LMRDA, the Secretary filed suit under both

Titles on March 25, 1975. .

Between the plaintiffs’ complaint to the Secretary and

the commencement of the Secretary’s action, the ILA Ex-

ecutive Council affirmed the report of its investigation com-

mittee, set aside the election of October 6, and ordered

a new election to be held on May 25, 1974. Upon learning

of this development, the Secretary sought and obtained a

temporary restraining order preventing the ILA from

holding the proposed May election.

tta

The District Court consolidated the action of the indi-

vidual plaintiffs (Titles I and II1) with the Secretary’s ac-

tion (Titles III and IV). Following a 7-day trial, the

District Judge found that the individual plaintiffs had

properly invoked the jurisdiction of Titles I and III relative

to (1) the denial of job opportunities to those opposed to

the union hierarchy, (2) the failure of the defendants to

recognize plaintiffs’ voting rights by voiding the October

election, and (3) the continuation of the trusteeship. Plain-

tiffs were found to have unavailingly exhausted their in-

ternal union remedies, a prerequisite to Title I and IV ac-

tions. The District Court opinion noted that post-election

relief is usually the sole prerogative of the Secretary, but

found the allegations in this case to be much broader in

scope than those typically advanced in a suit challenging

the validity of an election. The Court felt that the indi-

vidual plaintiffs were not only prosecuting their own inter-

ests, but also those of the union members whose votes were

nullified by the defendants’ actions.

Premised upon the finding that the October election was

valid, the refusal to install the plaintiffs was deemed to

‘“‘effect the outcome of an election”, and to state a Title IV

cause of action which could be maintained by the Secretary.

Denying complainants their right to hold office was found

to be contrary to the intent and meaning of § 401(e) of the

LMRDA, 29 U.S.C. 481(e). The individual plantiffs were

allowed to amend their complaint to allege the same Title

IV grounds as the Secretary and thereby intervene in his

action.

The Court further held that it was not required to order

a new election—that under Title I and its own inherent

equity powers it could validate the October election if it

were found to have been properly conducted.

A review of the election’s propriety presented two sharp-

ly contested issues: (1) whether McDonald was an eligible

45a

candidate for president and (2) whether the other chal-

lenged aspects of the election might have affected its out-

come. On the basis of the testimony of several witnesses,

the Judge determined that McDonald had been seeking

work on the docks for the requisite year but had been

denied employment because of Oliver’s pressure on the

hiring foremen. The question concerning LeBeau’s eligi-

bility was whether he had resigned from his supervisory

capacity sufficiently prior to the election. The Court found

that he had done so. The evidence further disclosed that

alleged violations relative to voter eligibility and the re-

moval of poll watchers were not well founded, nor would

they have affected the outcome of the election.

Accordingly, on October 24, 1974, the Court declared the

plaintiffs to have been duly elected on October 6, 1973, for

a term of 2 years. It directed their immediate installation

as officers and the trusteeship was ordered dissolved. The

ILA was prohibited from declaring McDonald ineligible

for office “because of any failure, omission, or lack of wel-

fare benefit eligibility which precedes his being installed as

President of Local 795 . . .”. Finally, the ILA was en-

joined from further violating the provisions of Title III of

the LMRDA.

McDonald was awarded back presidential pay from the

Local dating from October 6 when he was elected, less what

he had received from other employment. The individual

plaintiffs were also allowed attorneys’ fees in the amount

of $10,000, plus $1207.07 expenses, against the ILA, Field,

Oliver, and the Local.

Plaintiffs then proceeded to serve out their terms in of-

fice, which expired October 5, 1975, as per the order of the

Court. Another election took place on October 4, 1975. All

those chosen in the election of October 6, 1973 were re-

elected, with one exception. We heard oral argument on

this appeal on October 7, 1975.

46a

The Appellate Contentions

Appellants argue that there was no Title I jurisdiction

for relief to the individual plaintiffs; that only the Secre-

tary of Labor had authority to seek post-election relief but

that his Title IV authority failed for lack of exhaustion of

internal union remedies; that the Secretary had no author-

ity to seek, nor had the Court the power to order, installa-

tion of the Local officers; that the Court improperly re-

solved the issue of eligibility of two of the candidates for

president of the Local; and the award of attorney fees was

without basis.

The plaintiff-appellees assert that the attorney fee al-

lowance was inadequate and that the District Court erred

in limiting the terms of office to two years instead of three.

The issues raised by the appellants, except for back pay

and attorney fees, have been mooted by the election of Oc-

tober 4, 1975.

Mootness

Under Article Ili of the Constitution, federal courts

have jurisdiction of actual cases or controversies. The

controversy must exist when the suit is instituted and it

must exist at all stages of appellate review. See DeF unis

v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164

(1974) and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35

L.Ed.2d 147 (1973); Preiser v. Newkirk, 422 U.S. 395, 95

S.Ct. 2330, 45 L.Ed.2d 272 (1975).

Under the facts of this case we have no difficulty in con-

cluding that the expiration of plaintiffs’ two-year term of

office and the holding of a scheduled election for Local of-

ficers while this appeal was in progress has extinguished

the underlying controversy and rendered this case moot as

to all issues except the attorney fees awarded the individ-

47a

ual plaintiffs and back pay awarded McDonald. To be

more specific, the individual plaintiff-appellees do not now

hold Local office by virtue of the District Court judgment

that the October 6 election was valid. Their present tenure

is based on their victory in the election held October 4,

1975. The validity of that election is not an issue in this

appeal.

Wirtz, Secretary of Labor, v. Local 153, Glass Bottle

Blowers Association, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d

’ 705 (1968) was a case in which a Section 401 violation had

occurred because the union imposed an unreasonable re-

striction on members’ eligibility as candidates for office.

Another regular election had been held. The Supreme

Court ruled that this election did not moot the case because

the Secretary of Labor had the right to a court order void-

ing the challenged election and directing a new election to

be conducted under his supervision (emphasis ours). To

like effect, see the companion case of Wirtz v. Local 125,

Laborers’ International Union, 389 U.S. 477, 88 S.Ct. 639,

19 L.Ed.2d 716 (1968). In our present case, however, the

Secretary was not seeking to set aside an election as in-

valid but, to the contrary, took the position that the elec-

tion was valid. That position was sustained by the Dis-

trict Court and the Secretary has been granted the relief

he sought. The trusteeship is ended. The plaintiffs have

served the terms to which they were elected, the terms

which the Secretary sought to vindicate. Accordingly, the

public interest inherent in the Secretary’s suit has been

satisfied.

Nothing remains but a consideration of the attorney fees

and the back pay awarded pursuant to the suit brought by

those other than the Secretary.

48a

Back Pay and Attorney Fees Awarded Individual Union

Although the injunction-related issues asserted on be-

half of the individual union member plaintiffs are moot

for exactly the same reasons applicable to the Secretary’s

complaint, the awards of back pay and attorney fees are

yet alive for appellate resolution.

This necessitates a determination of whether such relief

is available under Titles I and III of the LMRDA. If it

is, are the awards justified? See Kerr v. Screen Extras

Guild, Inc., 9 Cir. 1972, 466 F.2d 1267, 1269, cert. denied,

412 U.S. 918, 93 S.Ct. 2730, 37 L.Ed.2d 144 (1973) ; Yablon-

ski v. United Mine Workers of America, 1972, 148 U.S.

App.D.C. 177, 459 F.2d 1201, 1202.

Availability of Damages and Attorneys’ Fees

The civil remedy provisions of both Titles I and ITI, 29

U.S.C. §§ 412 and 464 permit actions ‘‘for such relief (in-

cluding injunctions) as may be appropriate’’. When deal-

ing with such a broad grant of equitable jurisdiction in a

‘regulatory statute, the priciple is well established that:

Congress . . . must be taken to have acted cognizant

of the historic power of equity to provide coraplete

relief in light of the statutory purposes. As this

Court long ago recognized ‘‘there is inherent in the

Courts of Equity a jurisdiction to ... give effect to

the policy of the legislature.’’

Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288,

291-92, 80 S.Ct. 332, 335, 4 L.Ed.2d 323 (1960).?

*See also Renegotiation Board v. Bannercraft Clothing Co.,

415 U.S. 1, 16-20, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974); Porter

v. Warner Holding Co., 228 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed.

1332 (1946).

49a

Relief which is incident and ancillary to the primary

claim is therefore properly within th> judge’s discretion,

Hecht Co. v. Bowles, 321 U.S. 321, 329-30, 64 S.Ct. 587, 88

L.Ed. 754 (1944) ; Meredith v. Winter Haven, 320 U.S. 228,

235, 64 S.Ct. 7, 88 L.Ed. 9 (1943).

Under this rationale, compensatory damages, including

lost pay for officers who were improperly removed, have

been allowed as necessary to afford complete relief.*

Although the cited cases all deal with actions under § 102

of the LMRDA, 29 U.S.C. § 412, the identical language of

the Title LII trusteeship provisions should authorize the

same result.

In Hall v. Cole, 412 U.S. 1, 10, 93 S.Ct. 1943, 1949, 36

L.Ed.2d 702 (1973), the Supreme Court stated:

Thus, §102 does not ‘‘meticulously detail the

remedies available to a plaintiff,’’ and we cannot fairly

infer from the language of that provision an intent

to deny to the courts the traditional equitable power

to grant counsel fees in ‘‘appropriate’’ situations.

Founded upon the ‘‘common benefit’’ approach clearly

articulated in Mills v. Electric Auto Lite, 396 U.S. 375,

392-94, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), Hall, 412 US.

at 5-6, 93 S.Ct. at 1946 noted the established exception to

the American rule against awarding attorneys’ fees in

cases in which the plaintiff’s successful litigation confers

‘‘a substantial benefit on the members of an ascer-

tainable class, and where the court’s jurisdiction over

’ International Brotherhood cf Boilermakers v. Braswell, 5 Cir.,

388 F.2d 193, 199, cert. denied, 391 U.S. 935, 88 S.Ct. 1848, 20

L.Ed.2d 854 (1968); Kerr v. Screen Extras Guild, Inc., 9 Cir.

1972, 466 F.2d 1267, 1270, cert. denied, 412 U.S. 918, 93 S.Ct.

2730, 37 L.Ed.2d 144 (1973) ; International Brotherhood of Boiler-

makers v. Rafferty, 9 Cir. 1965, 348 F.2d 307, 314-15; Salzhandler

v. Caputo, 2 Cir. 1963, 316 F.2d 445, 451; Retail Clerks Union,

Local 648 vy. Retail Clerks Int’l Ass’n, D.D.C. 1969, 299 F.Supp.

1012, 1021.

50a

the subject matter of the suit makes possible an

award that will operate to spread the costs propor-

tionately among them.’’. . . ‘‘Fee shifting”’ is justified

in these cases, not because of any ‘‘bad faith’’ of the

defendant but, rather, because ‘‘[t]o allow the others

to obtain full benefit from the plaintiff’s efforts with-

out contributing equaily to the litigation expenses

would be to enrich the others unjustly at the plain-

tiff’s expense.”’

Analogized to reimbursement of fees out of a corporate

treasury, awarding fees against the local union merely

shifts the costs of litigation to the class that benefited

from it. See also Fleischmann Distilling Corp. v. Maier

Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475

(1967) ; Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157

(1882).

Although the primary purpose of an individual’s law-

suit is obviously to vindicate his own rights or facilitate

his own candidacy, there can be little doubt that he

renders @ substantial service to the union as an institu-

tion and to its members individually in protecting local

democratic processes through Titles I and III. The suc-

cessful litigant dispels the “chill” cast upon the rights

of others. Hall, 412 U.S. at 8, 93 S.Ct. 1943; Yablonski

v. United Mine Workers of America, 1972, 151 U.S.App.-

D.C. 253, 466 F.2d 424, 430, cert. denied, 412 U.S. 918, 93

S.Ct. 2729, 37 L.Ed.2d 144 (1973).

The teaching of Alyeska Pipeline Service Co. v. Wilder-

ness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141

(1975), that under the American rule the prevailing party

is ordinarily not entitled to collect a reasonable attorneys’

fee from the loser, does not mandate that result in equi-

table suits under Titles I or III. The Court stated on

pages 257-59, 95 S.Ct. on page 1621:

5la

In Trustees v. Greenough, 105 U.S. 527, 26 L.Ed.

1157 (1881), the 1853 Act was read as not interfering

with the historic power of equity to permit the trustee

of a fund or property, or a party preserving or re-

covering a fund for the benefit of others in addition

to himself, to recover his costs, including his at-

torneys’ fees, from the fund or property itself or

directly from the other parties enjoying the benefit.

That rule has been consistently followed.

Mills v. Electric Auto-Lite and Hall v. Cole were then

cited as recent authority for the same proposition.

Additionally, as a basis for awarding attorneys’ fees

in Title I suits, the Court has recognized that such fees

are clearly consonant with the congressional intent to af-

ford necessary protection of the rights and interests

secured by the Act. Quoting the Court of Appeals, Hall

stated 412 U.S. at 13, 93 S.Ct. at 1950:

Not to award counsel fees in cases such as this

would be tantamount to repealing the Act itself by

frustrating its basic purpose. It is difficult for in-

dividual members of labor unions to stand up and

fight those who are in charge. The latter have the

treasury of the union at their command and the paid

union counsel at their beck and call while the mem-

ber is on his own. ... An individual union member

could not carry such a heavy financial burden. With-

out counsel fees the grant of federal jurisdiction is

but a gesture for few union members could avail

themselves of it. 462 F.2d at 780-81.

* See also Yablonski v. United Mine Workers of America, 1972,

151 U.S.App.D.C. 253, 466 F.2d 424, cert. denied, 412 U.S. 918,

93 S.Ct. 2729, 37 L.Wd.2d 144 (1973) ; Gartner v. Soloner, 3 Cir.

1967, 384 F.2d 348, 355, cert. denied, 390 U.S. 1040, 88 S.Ct. 1633,

20 L.Ed.2d 302 (1968); Robins v. Schonfeld, S.D.N.Y.1971, 326

F.Supp. 525; Sands v. Abelli, S.D.N.Y.1968, 290 F.Supp. 677, 686.

52a

Although the financial burden inherent in Title I suits

where an individual has no alternative but to bring the ac-

tion himself supports the award of fees, this is merely an

additional justification and does not mandate the denial of

fees when a union member may also seek governmental

intervention on his behalf, as in Title III. The primary

factors of identical equitable relief language and common

benefit to the union’s membership are just as viable in

Title LIT as in Title I. At the least, a member’s suit to dis-

solve a trusteeship may aid the Secretary of Labor in

resolution of the issues; the members may seek relief dif-

ferent from or in addition to that sought by the Secretary

which they do not wish to have barred by the res judicata

effect of the Secretary’s suit imposed by 29 U.S.C. § 466;

or at the most, the Secretary may refuse to file a suit

and the members must seek their own relief.’ In numerous

statutes Congress has recognized the propriety of allowing

attorney fees even though an individual may invoke the

government’s legal resources to prosecute a cause.’ We

* For example, § 16 of the Fair Labor Standards Act, 29 U.S.C.

§ 216, permits fees in a suit to recover unpaid minimum wages or

overtime compensation even though an aggrieved person may file

a complaint with the Secretary of Labor to bring the action. Sec-

tion 308 of Part III of the Interstate Commerce Act, 49 U.S.C.

§ 908, allows a private action with recovery of attorney fees or a

complaint with the ICC to obtain the same relief for certain viola-

tions of the Act by water carriers. Title II of the Civil Rights

Act of 1964, § 204, 42 U.S.C. § 2000a-3(b), provides for fees in

public accommodation and statutory discrimination cases despite

the authority of the Attorney General to sue on the basis of the

same pattern or practice under § 2000a-5; the Supreme Court in

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401, 88

S.Ct. 964, 19 L.Ed.2d 1263 (1968) noted that the nation had

to rely in part on private litigation to secure broad compliance

with the law and that allowing attorney fees encouraged individuals

to seek relief Section 718 of Title VII of the Emergency School

Aid Act, 20 U.S.C. § 1617, as applied in Northcross v. Board of

(footnote continued on following page)

53a

hold, therefore, under the common benefit theory that an

award of attorney fees is permissibly within equitable dis-

cretion in both Title I and Title III cases.

As noted earlier in Mills and Hall, the fees are to be

granted against the local union to avoid unjust enrich-

ment of the membership. We have found only one case in

which fees were imposed on individuals or the interna-

tional, Robins v. Schonfeld, S.D.N.Y.1971, 326 F.Supp.

525, 531. We think that the conimon benefit rationale does

not justify such a punitive award. Only if an individual or

the international has scted ‘‘in bad faith, vexatiously,

wantonly, or for oppressive reasons’’ should fees be

shifted to others besides the local. See Alyeska 421 U.S. at

247, 95 S.Ct. 1612 and Hall 412 U.S. at 5, 98 S.Ct. 1943.

Examining the Title III claim first, the Court undoubted-

ly had jurisdiction over the case. Congress recognized that

trusteeships had, at times, been used as a means of con-

solidating the power of corrupt union officers, plundering

and dissipating the resources of local unions, and prevent-

ing growth of competing political elements within the or-

ganization. To determine whether a trusteeship is being

abused in such a manner or is meeting the enumerated

purposes of the statute, Tithe III must be construed in

(footnote continued from preceding page)

Education of Memphis City Schools, 412 U.S. 427, 93 S.Ct. 2201,

37 L.Ed.2d 48 (1973), authorizes fees in school desegregation

eases even though the Attorney General, under Title LV, 42

U.S.C. § 2000c-6, may seek redress of the situation upon the filing

of a complaint by one who cannot afford to sue. The Servicemen’s

Readjustment Act, 38 U.S.C. § 1822, permits attorney fees in an

action to recover the excess above the reasonable purchase price

of property bought with a VA loan or a suit by the Attorney

General upon request. : ;

The policies behind these statutes are as varied as their subject

matter, but they all lend credence to the proposition that avail-

ability of government action does not automatically foreclose re-

covery of attorney fees in a private suit if they are otherwise

authorized by law.

54a

light of the various other provisions of the LMRDA. The

purpose of the Act as a whole

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 organiza-

tions. ... [T]he rights of individual members of a labor

union are protected by federal statute with a view to

allowing those members to conduct local matters with a

minimum of outside interference. In short, local affairs

are to be governed by local members under democratic

processes.

Umted Brotherhood of Carpenters and Joiners of Amer-

ica v. Brown, 10 Cir. 1965, 343 F.2d 872, 882.

The Secretary had already found that the trusteeship

was not fulfilling statutory purposes and refrained from

filing suit only because Field initiated an election time-

table. The conduct of Oliver, the trustee’s agent, in at-

tempting to disqualify his opponents, Field’s lack of su-

pervision of the Local’s affairs and election process, and

the International’s voiding of the election and continuation

of a presumptively invalid trusteeship only exacerbated

the situation and made a mockery of ‘‘internal democratic

processes’’.

In asserting their rights against the trusteeship, the

members were not required to exhaust internal remedies.

Unlike Titles i and IV, Title III contains no exhaustion

requirement. Intra-union appeals would be unlikely to

provide much relief since the protests would be to the very

International which invoked the trusteeship. United

Brotherhood of Carpenters at 880; Hotel & Restaurant

Employees & Bartenders’ Int'l v. Del Valle, 1 Cir., 328

F.2d 885, 886, cert. denied, 379 U.S. 879, 85 S.Ct. 146, 13

L.Ed.2d 86 (1964); Parks v. International Brotherhood of

55a

Electrical Wkrs., 4 Cir., 314 F.2d 886, 923, cert. denied,

372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963). Thus,

plaintiffs properly stated their claim hefore the District

Court, and the findings of fact below conclusively man-

dated the dissolution of the trusteeship.

The Back Pay Issue

This brings us to the back pay issue. Obviously the

award cannot be justified unless the Court had authority to

order the officers installed. Having ordered the trusteeship

dissolved as it should have been, some determination had

to be made on where to place control of the Local’s affairs.

At least two circuits have approved the use of the court’s

equitable jurisdiction to direct the holding of a special

election in such a situation. Brennan v. United Minework-

ers of America, 1973, 155 U.S.App.D.C. 24, 475 F.2d 1293,

1296; Schonfeld v. Raftery, S.D.N.Y., 271 F.Supp. 128, 148,

aff'd, 2 Cir. 1967, 381 F.2d 446.

If a court may order an election held with the results to

be confirmed by its certification, no cogent reason appears

to suggest that it may not or should not validate an elec-

tion already properly held. In doing so here, all the Dis-

trict Court really did was make a collateral determination

on the eligibility of two candidates. The same thing was

done in Burch v. International Ass’n of Machinists & Aero-

space Wkrs., S.D.Fla. 1971, 337 F.Supp. 308, which or-

dered the termination of a trusteeship and declared plain-

tiff a proper nominee for the pending election,

In determining MeDonald’s eligibility, the District Court

found that he had been seeking work in the trade for the

requisite year, but had been denied employment because

of Oliver’s coercion of supervisors. In making that finding

the trial judge was faced with a credibility choice between

witnesses, and we do not appraise his decision as clearly

erroneous.

56a

Appellants’ primary objection is that this constituted

determination of a blacklisting charge, an unfair labor

practice which can be considered only by the NLRB under

§8 of the National Labor Relations Act, 29 U.S.C. § 158.

The pre-emption doctrine which places practices “argu-

ably” condemned by § 8 within the exclusive jurisdiction of

the NLRB developed in San Diego Building Trades Coun-

cil v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775

(1959). The rationale for deference of state and federal

courts to the competence of the Board is to avert inter-

ference with national labor policies. William E. Arnold

Co. v. Carpenters Dist. Council of Jacksonville & Vicinity,

417 U.S. 12, 15, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974) ; Local

100, United Ass’n of Journeymen & Apprentices v. Borden,

373 U.S. 690, 693, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963).

Borden construed the union membership rights protected

by §8(a)(3) and incorporated in §8(b)(2) to embrace

participation in union activities and maintenance of good

standing as well as mere adhesion to the labor organiza-

tion. Therefore if a labor organization attempts to cause

an employer to discriminate against an employee in order

to discourage his participation in union activities, a §8

cause of action is “arguably” present and the NLRB has

exclusive jurisdiction. See also Scofield v. NLRB, 394 US.

423, 428, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969). Borden

went on to note, however, that the conduct upon which that

suit was centered was conduct the lawfulness of which

could initially be judged only by the federal agency, not by

the state court where the action was filed. The Court at

697 specifically declined to speculate on the effect of Gar-

mon on International Ass’n of Machinists v. Gonzales, 356

U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958). See Amal-

gamated Assoc. of Street, Electric Railway & Motor Coach

Employees v. Lockridge, 403 U.S. 274, 296-98, 91 S.Ct. 909,

29 L.Ed.2d 473 (1971).

57a

Gonzales permitted collateral relief for lost employment

where the suit “focused on purely internal union matters,

i.e., on relations between the individual plaintiff and the

union not having to do directly with matters of employ-

ment ...” and where the principal relief sought was res-

toration of union membership rights. Thus, in dealing

with meritorious Title I suits, distinctly collateral allega-

tions which might also constitute unfair labor practices

have been held not to oust the court of jurisdiction. The

Third Circuit explained:

The explicit Congressional declaration and the rea-

soning, in an analogous situation, of the Supreme

Court in Gonzales, establish that the district court is

competent to retain jurisdiction of a Section 101 (a) (5)

suit even when elements of the case are arguably sub-

ject to the Board’s jurisdiction. “The fact that the

Act preserves to union members all remedies ‘under

any State or Federal law or before any court or other

tribunal . . .,” § 103 of the LMRDA, 29 U.S.C. § 413

... only means that the new federal protection was

superimposed on protection already available in other

forums ... Summers, ‘The Law of Union Disci-

pline: What the Courts Do in Fact,’ 70 Yale L.J. 175,

176 (1960).”

Rekant v. Schochtay-Gasos Union Local 446, etc., 3 Cir.

1963, 320 F.2d 271, 275.°

Suits under the LMRDA which involve unfair labor prac-

tices are analogous to actions under § 301 of the Labor Manage-

ment Relations Act, 29 U.S.C. § 185. An individual may sue to

redress a violation of a collective bargaining agreement even

though the violation itself may constitute an unfair labor practice.

Like the LMRDA § 301 has been held to confer substantive rights

upon union members and Congress has been deemed to have di-

rected the courts to formulate and apply federal law to these suits.

Garmon has been held not to preempt individual actions under

§ 301. Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267,

9 L.Ed.2d 246 (1962). See Textile Workers v. Lincoln Mills, 353

U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957).

58a

Parks v. International Brotherhood of Electrical Wkrs.,

4 Cir. 1963, 314 F.2d 886, 922, went on to state, “Congress

did not intend that before securing the rights it made

enforceable in federal courts, individuals should wait for

the Labor Board to pass upon such matters as might also

be within its competence.”

The case primarily relied upon by appellants, Green v.

Local 705, Hotel € Restaurant Employees, etc., E.D.Mich.

1963, 220 F.Supp. 505, is not persuasive on the pre-emption

issue. Therein, the court found that plaintiffs had failed to

state a Title I cause of action and were attempting to

argue a §8 case under the LMRDA. The primary finding

in the grant of incidental relief in this case, on the other

hand, was that McDonald had been seeking work in the

trade and was, therefore, an eligible candidate. The finaing

as to why he had not actually been working was purely

collateral.

As to LeBeau’s candidacy, apparently the only issue

raised by the protest was whether he had resigned from

his supervisory position sufficiently prior to the election.

The District Court correctly found that he had. Appellants

now contend that the Court should also have considered,

and declared LeBeau ineligible upon the ILA constitutional

stricture of working or seeking work in the trade for the

year preceding the election. This issue apparently was not

* Other courts have similarly held. Grand Lodge of the Int’l

Ass’n of Machinists v. King, 9 Cir., 335 F.2d 340, cert. denied, 379

U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964); Bussey v. Plumbers

Local No. 3, 10 Cir. 1961, 286 F.2d 165; Robertson v. Banana

Handlers Int’l Longshoremen’s Ass’n, Local 1800, E.D.La. 1960,

183 F.Supp. 423. See Detroy v. American Guild of Variety Ar-

tists, 2 Cir., 286 F.2d 75, cert. denied, 366 U.S. 929, 81 S.Ct. 1650,

6 L.Ed.2d 388 (1961); Robins v. Schonfeld, S.D.N.Y. 1971, 326

F.Supp. 525; Burris v. International Brotherhood of Teamsters,

etc., W.D.N.C. 1963, 224 F.Supp. 277.

59a

addressed by the original protest, the ILA’s investigation,

the Labor Department’s investigation, the pleadings, or the

exhibits; and was only once fleetingly and indirectly men-

tioned at trial. Although this point is raised belatedly, we

feel that LeBeau, in his supervisory capacity, was directly

and intimately involved in the trade or craft of being a

longshoreman. We are dealing with broad generic words

and a man closely associated with the activities they con-

note.

The other errors which were alleged in the original elec-

tion protests were not raised by appellants as issues for

appellate review. Not until their reply brief did they

belatedly contest the District Court’s findings in this re-

gard. We deem that these points of contention could not

have affected the election, and are therefore immaterial.

The challenges to the election’s validity are without merit;

the trial Judge’s findings in this regard are not clearly

_ erroneous.

Full, complete, and equitable relief in this case, then,

must certainly include validation of the election results.

One of the primary purposes of a trusteeship is assurance

of internal democratic functioning of a union. When a

trusteeship is employed to thwart that functioning, Con-

gressional intent is best served by placing management of

the Local in the hands of those selected by the union mem-

bers. Here they had made that selection.

We fully recognize that the courts must exercise sound

reluctance to interfere with internal union affairs. Partic-

ularly in regard to post-election remedies which may be

pursued only by the Secretary of Labor under Title IV,

we do not intend to place union officers in a strait jacket

by permitting them to be constantly haled into court after

every election by any dissident member who is dissatisfied

with the results. An unmeritorious claim under some other

60a

Title will not be permitted as a beotstrap to consider what

is actually only a Title IV action.*

Although committed to minima] intervention, the courts

should use warranted intervention, effeetive to enforce the

guarantees of the Act. Where the international, under

the guise of a trusteeship, places obstacles in the way of

effective union democracy or appears to do so, the court

cannot give that conduct any recognition when it offends

equity and the LMRDA. Cf., Wirtz v. Local 153, Glass

Bottle Blowers Ass’n, 389 U.S. 463, 473, 88 S.Ct. 643, 19

L.Ed.2d 705 (1968); NLRB vy. Erie Resistor Corp., 373

U.S. 221, 228, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963).

Unlike the plethora of Title I cases in which disgruntled

union members sought to directly attack an election be-

cause of an alleged violation of their ‘‘bill of rights’’, we

are dealing here with an unequivocally invalid trustee-

ship; a trusteeship which merely perpetuated the evils it

was supposed to correct. In such a case where interven-

tion is necessary, the district court is bound by equity to

afford complete justice. This it could not do here without

considering whether the refusal to install the officers and

continuation of the trusteeship was improper. Having so

* See, e. g., Trbovich v. United Mine Workers of America, 404

U.S. 528, 531-35, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972); Calhoon

v. Harvey, 379 U.S. 134, 140-41, 85 S.Ct. 292, 13 L.Ed.2d 190

(1964); Nelms v. United Ass’n of Journeymen & Apprentices of

Plumbing, etc., 5 Cir. 1968, 405 F.2d 715, 718; Cefalo v. Moffett,

1971, 146 U.S.App.D.C. 117, 449 F.2d 1193, 1200; Davis v.

Turner, 9 Cir., 395 F.2d 671, cert. denied, 393 U.S. 987, 89 S.Ct.

467, 21 L.Ed.2d 449 (1968); Mamula v. United Steelworkers of

America, 3 Cir. 1962, 304 F.2d 108, 109, S.Rep.No.187, 86th

Cong., 1st Sess. 397, 417 (1959) ; Hearings on S. 505 et al. Before

the Subcomm. on Labor of the Sen. Comm. on Labor and Public

Welfare, 86th Cong., Ist Sess. 567 (1959). These authorities are

in agreement that questions of eligibility for office, qualifications

of candidates, nomination procedures, and election processes are

normally reserved for a suit by the Secretary.

6la

found, the next logical and fair step was to order the

plaintiffs into office. In this case, we also have the ad-

vantage of the Secretary’s concurrence that such relief

was proper. Compensatory damages in the form of back

pay are, therefore, a proper form of relief in this case.

Having succeeded on the merits, plaintiffs returned

democratic processes and autonomy to the Local to the

common benefit of its members. Attorneys’ fees as

awarded by the District Court against the Local are

appropriate.

Title I Claims

We find it unnecessary to reach specifically appellants’

questions regarding plaintiffs’ Title I claims. McDonald

et al. had to prove essentially the same facts to sustain

the primary and incidental relief we have found proper

under Title ITI as they would have in their voting rights

ease. Therefore, the full amount of the fees awarded is

justified.

Without expressly reaching the issue, we do note that a

Title I action standing alone and expressly directed to

post-election relief is of doubtful validity.

Bad Faith

As discussed earlier, attorney fees directed against any

party but the Local must be justified on a bad faith rather

than a common benefit rationale Although the trial judge

did not use the ‘‘inagic words’’, his factual findings are

replete with the most glaring examples of bad faith and

oppressiveness.

The International, through its appointed agent Field,

was responsible for seeing that the trusteeship was validly

conceived, operated, supervised, and terminated at an ap-

62a

propriate time. This it not only failed to do but it actu-

ally resisted it. Oliver’s mismanagement continued to

characterize his activities; a fact recognized by Field, who

chose to delegate virtually all of his authority to him.

Directly contrary to the enunciated purposes of the

LMRDA, the trusteeship was used to stifle democratic

processes in the Local and to perpetuate a highly inept,

possibly a corrupt, administration.

Oliver, in his designated official capacity, sought ta

consolidate his grip on the union, to remove potential

threats to his power by blacklisting or securing passage

of bogus election qualifications, and, when faced with de-

feat in spite of his efforts, to throw out the election. The

response of Field and the International to these efforts

was bold-faced cooperation. Not until the Secretary of

Labor moved to intervene did Field make an effort to do

his job and to set in motion the machinery to reinstate

local control.

Two executive board members of the International

supervised the election. They asked if there were any

protests concerning the eligibility of voters or candidates,

and did not receive, find, or make any. Once the election

results were in, however, the International refused to

abide by them. It chose instead to disqualify the apparent

winner primarily on the basis of constitutional provisions

inappropriately passed by Oliver, unapproved by the In-

ternational, and stipulated to have been without effect at

the time of the election.

We need not speculate on the possible motives of those

who were placed in a fiduciary capacity by the trusteeship.

The record shows that their actions were blatantly con-

trary to those principles which the LMRDA intended to

foster, and they persisted in such conduct despite the pro-

tests of large numbers of the Local’s members.

In the words of the District Court, this suit was obvi-

63a

ously “necessary for the relief obtained”. The order mak-

ing Oliver, Field, and the International jointly and sever-

ally liable for attorney fees and expenses along with the

Local is sustained.

The Cross Appeal

The cross appellants (individual plaintiffs) argue that

attorney fees should have included compensation for

387.15 hours of time spent, rather than the 250 hours al-

lowed by the Court. It seems clear from the record,

however, that plaintiffs sought pay for time spent on

aspects of the case common to those pursued by or exciu-

sively within the province of the Secretary [Titles III and

IV]. We are unable to say that the trial judge, intimately

acquainted as he was with all favets of this difficult case

and with these overlapping efforts, abused his discretion

in appraising the amount appropriately awardable. We

feel no warrant to interfere with that appraisal, Weeks

v. Southern Bell Tel. & Tel. Co., 5 Cir. 1972, 467 F.2d 95:

Johnson v. Georgia Highway Express, Inc., 5 Cir. 1974,

488 F.2d 714.

As to the two year term of office prescribed by the Dis-

trict Court, Article XIII, Section 1, of the ILA Constitu-

tion so provided unless the Local By-laws specified other-

wise and there was no such specification in effect at the

time of the election.

The Judgment of the District Court rendered in re-

sponse to the Secretary’s suit being moot, as hereinabove

set forth, the appeal as to that aspect of the case is dis-

missed. :

In all other respects the Judgment of the District Court

Affirmed.

tha 65a

APPENDIX B Statutory Provisions Involved,

i i 1 ject to

Statutory Provisions Involved. date of its establishment and shall not be swhject

attack during such period except wpom clear and con-

vincing proof that the trusteeshup was not established

or maintained in good faith tor a purpose allowable

under section 462 of this title. After the expiration

The Labor-Management Reporting and Disclosure Act

of 1959 provides, in pertinent parts, as follows:

29 U. S. C. $462. Purposes for establishment of trustee-

ship.

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 per-

formance of collective bargaining agreements or other

duties of a bargaining representative, restoring demo-

cratic procedures, or otherwise carrying out the legiti-

mate object of such labor organization. (Pub.L. 86-257,

Title III, § 302, Sept. 14, 1959, 73 Stat. 531).

29 U.S. C. § 464. Civil action for enforcement

Presumptions of validity or invalidity of trusteeship

trusteeship established by a labor organization in con-

formity with the procedural requirements of its con-

stitution and bylaws and authorized or ratified after

a fair hearing either before the executive board or

before such other body as may be provided in accord-

ance with its constitution or bylaws shall be pre-

sumed valid for a period of eighteen months from the

of eighteen months the trusteeship shall be presumed

invalid in any such proseeding and its discontinuance

shall be decreed unless the labor organization shal!

show by clear and convincing proof that the continua-

tion of the trusteeship is necessary for a purpose

allowable under section 462 of this title. In the latter

event the court may dismiss the complaint or retain

jurisdiction of the cate on such conditions and for

such period as it deems appropriate. (Pub.L. 86-257

Titie ITT 4 304, Sept. 14, 1999, 73 Stat. 531).

29 U. S. C. § 481. Terms of office and election procedures

—Officers of nationa) or interna-

tional labor crganizations; manner

of election.

. * *

(e) In any election required by this section “hic! is

to be held by secret ballot a reasonable opportwiiiy

shall be given for the nomination of candidates and

every member in good standing shall be eligxble to be

a candidate and to hold office (subject to section 504

of this title and to reasonable qualifications uniformly

imposed). . The election shall be conducted m ac-

cordance with the constitation and bylaws of such

organization insofar as they are not inconsistent with

the provisions of this subchapter. (Pub... 86-257, Title

IV, $401, Sept. 14, 1959, 73 Stat. 532).

66a

Statutory Provisions Involved.

29 U. S. C. $482. Enforcement—Filing of complaint;

presumption of validity of chal-

lenged election.

(a) A member of a labor organization—

(1) who has exhausted the remedies available

under the constitution and bylaws of such organiza-

tion and of any parent body, or

(2) who has invoked such available remedies with-

out obtaining a final decision within three calendar

months after their invocation,

may file a complaint with the Secretary within one

calendar month thereafter alleging the violation of any

provisions of section 481 of this title (including viola-

tion of the constitution and bylaws of the labor organi-

zation pertaining to the election and removal of offi-

cers). The challenged election shall be presumed valid

pending a final decision thereon (as hereinafter pro-

vided) and in the interim the affairs of the organiza-

tion shall be conducted by the officers elected or in

such other manner as its constitution and bylaws may

provide.

(b) The Seeretary shall investigate such complaint

and, if he finds probable cause to be believe that a

violation of this subchapter has occurred and has not

been remedied, he shall, within sixty days after the

filing of such complaint, bring a civil action against

the labor organization as an entity in the district

court of the United States in which such labor organi-

zation maintains its principal office to set aside the in-

valid election, if any, and to direct the conduct of an

election or hearing and vote upon the removal of

officers under the supervision of the Secretary and in

accordance with the provisions of this subchapter and

67a

Statutory Provisions Involved.

such rules and regulations as the Secretary may pre-

scribe. The court shall have power to take such ac-

tion as it deems proper to preserve the assets of the

labor organization.

a trial upon the merits, the court finds—

(2) that the violation of section 481 of this title

may have affected the outcome of an election,

the court shall declare the election, if any, to be void

and direct the conduct of a new election under super-

vision of the Secretary and, so far as lawful and prac-

ticable, in conformity with the constitution and by-

laws of the labor organization. . . . (Pub.L. 86—257,

Title IV, § 402, Sept. 14, 1959, 73 Stat. 534).

29 U. S. C. $483. Application of other laws; existing

rights and remedies; exc

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