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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 817

## Text

ee

_ Supreme Ceurt, U. g
FILED »

i!

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,
v.

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,
v.

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.
.s

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,
v.

Secretary of Labor, United States Department of Labor,
Respondent.

a.
sf

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.

2

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

3

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-

4

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

5

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.”

6

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,

7

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

8

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

10

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:

11

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

?

12

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.

13

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

14

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

15

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.

Se

16

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

17

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.

18

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.

19

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

la

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,
v.

Harowip Oxrver et al.,
| Defendants.

_—_

Peter J. Brennan, Secretary of Labor, United States
Department of Labor,
Plaintiff,
v.

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-

—————————

2a

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

3a
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

4a
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-

5a
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

6a

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

Sa
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-

9a
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,
v.

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 )

a
ww

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:

I.

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.

5
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.

V.

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,
v.
Haroip Oxiver et al.,
Defendants-A ppellants.

Joun T. Dunwop, Secretary of Labor,
U.S. Department of Labor,

Plaintiff-Appellee,
v.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2254%3A1. Public record. Not legal advice.