Petition — Blanchard v. Johnson

Supreme Ceurt, UM |

| FILED “#

MAY 26 1976

Bannaebntheanbin ne! aS

Supreme Court of the United States

October Term, 1975

No. 75-1 ¢ ] 6

NORMAN F. BLANCHARD, et al.,

Petitioners,

vs.

ROLLA R. JOHNSON, et al.,

Respondents,

and

MARINE ENGINEERS BENEFICIAL ASSOCIATION,

ASSOCIATED MARITIME OFFICERS, AFL-CIO,

Applicants for Intervention.

—---—- -——

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

—— —-

ee

Merritt W. GREEN, II

GERALD B. LacKEy

GREEN, Lackey, NEWCOMER

and Harris

330 Spitzer Building

Toledo, Ohio 43604

Counsel for Petitioners

THE GATES LEGAL PUBLISHING CO.. CLEVELAND. OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

ET ARE Le A,

Statement of Jurisdiction ___._______-____________

ETE Se ee

Statutory Provisions Involved __- edie

I I I a Fe cute imatnnoemace

I a

EES ETT Oe

S. Peeeee Be oe ote

Reasons for Granting the Writ _.__________ SPataheos

I. This Case Presents an Important Issue of Na-

tional Labor Policy Requiring Resolution by

This Court _____- eee ee Pat A Ne A

A. The issue in this case is one of first impres-

sion involving the construction of the Labor

Management Reporting and Disclosure Act,

29 U.S.C. §§411(a) (1) and 501(a) _____-

1. Equal voting rights ____-___ aon 1 Pen ;

2. Fiduciary duties of union officials ____

B. Review of this case is essential to the pres-

ervation of the fundamental rights of the

union members and essential to guarantee

the full and active participation by the rank

and file in the affairs of their union ____ __

II. This Case Presents a Good Vehicle for This

Court to Consider and Decide the Issue Pre-

sented Herein ____.___. x Sos

a ee a ae ee ae EN

Appendix:

Opinion of the District Court ____-_____________

Coo ow .- - LW LH

10

16

II

Opinion of the Court of Appeals _.__._._.__.__.__.___ A4

Judgment of the Court of Appeals _.______-______ Al2

TABLE OF AUTHORITIES

Cases

Calhoon v. Harvey, 379 U.S. 134 (1964) _____-__-16,17

Cefalo v. Moffett, 449 F.2d 1193 (D.C. Cir., 1971) _- 9

Dusing v. Nuzzo, 26 N.Y.S.2d 345 (1941) _..._._-._ 14

Gurton v. Arons, 339 F.2d 371 (2nd Cir., 1964) ___- _.

Highway Truck Drivers v. Cohen, 182 F. Supp. 608

(E.D. Pa., 1960) aff'd 284 F.2d 162 _ Cir.,

1960), cert. denied, 365 U.S. 833 (1961) __-_-__-.- 9

House v. Schwartz, 18 Misc. 2d 21, 188 N.Y.S.2d 308

sa RDS A LS aR EL A nn oe ae 14

Keck v. Employees Independent Ass’n., 387 F. Supp.

I 10

Kerr v. Shanks, 466 F.2d 1271 (9th Cir., 1972) __-_ 10

Musicians Federation v. Wittstein, 379 U.S. 171

EE ee

Navarro v. Gannon, 385 F.2d 512 (2nd Cir., 1967) __10, 11

Nelson v. Johnson, 212 F. Supp. 233 (D. Minn., 1963),

aff'd 325 F.2d 646 (8th Cir., 1963) __._________10, 14

Phillips v. Osborne, 403 F.2d 826 (9th Cir., 1968) ___ 13

Pignotti v. Sheet Metal Workers, 477 F.2d 825 (8th

Cir., 1973), cert. denied, 414 U.S. 1067 (1974)

sateinecienlisadihsidtendibiaetameaptidnseiainieasartiiimabantinntencinaitel 10, 14, 15

Sabolsky v. Budzonowski, 457 F.2d 1245 (3rd Cir.,

1972), cert. denied, 409 U.S. 853 (1973) ____10, 14, 15

Schuchardt v. Millwrights & Mach. Erectors Loc.

Union No. 2834, 380 F.2d 795 (10th Cir., 1967) __10, 11

III

Sertic v. The District Council of —, 423 F.2d

f . i _aeSa a a |

Sheldon v. shnsiinatatedl 497 F.2d 1276 _ Cir.,

SE ( o cceudconed ce Ma 12

Smith v. General Truck Drivers, 181 F. Supp. 14

(D.C. Calif., 1960) - 10

Tinkler v. Powell, 23 Wyo. 352, 151 P. 1097 (1915) 14

Yanity v. Benware, 376 F.2d 197 (2nd Cir., 1967) 13

Young v. Hayes, 195 F. Supp. 911 (D.D.C., 1961) 11

Texts

Aaron, The Labor Management Reporting and Dis-

closure Act of 1959, 73 Harv. L. Rev. 851 (1960) 10

Clark, The Fiduciary Duties of Union Officials Under

Section 501 of the LMRDA, 52 Minn. L. Rev. 437

SU” siecle blot otescuien ae => SF

Cox, Internal Affairs of I Labor Unions Under the

Labor Reform Act of 1959, 58 Micu. L. Rev. 819

Se = |

Cox, The Role of Law in Reise: Union Democ-

racy, 72 Harv. L. Rev. 609 (1959) _.--- ss siséd'BB’

Dugan, Fiduciary Obligations Under the New Act, 48

Geo. LJ. 277 (1958) -.--..._-...-- 10

Hickey, The Bill of Rights of Union Members, 48 Geo.

i ( 1 a

Rosen, Fair Representation, Contract Breach and Fi-

duciary Obligations: Unions, Union Officials and

the Worker in Collective salted 15 HastINGs

L.J. 391 (1964) - iaiteimaianariie 14

Rothman, Legislative History of the “Bill of Rights”

for Union Members, 45 Minn. L. Rev. 199 (1960) 10

Scott, The Fiduciary sieeanad 37 Cauir. L. Rev. 539

(1949) _. Gan nen eid.

IV

Union Officers-Fiduciary Duties, 15 A.L.R.3d 939 _._ 10

Wollett, Fiduciary Problems Under Landrum-Griffin,

13 N.Y.U. Ann. Conr. on Lasor 267 (1960) __-- 10

Statutes

29 U.S.C. $101 __- me asieniieamtaeen 4

29 U.S.C. §185 _______- wats lasceieiisiiialdaia

29 U.S.C. §402 ___- -scciairaniadeeaaiie

29 U.S.C. §411 _____- svalecceicelene coun

29 U.S.C. §41l(a) - inn an

29 U.S.C. §411(a) (1) 2, 9, 10, 11, 13, 17, 19

29 U.S.C. §411(a) (3) 7 : 12

29 U.S.C. §411(a) (3) (B) —

29 U.S.C. §412 __- | 4

29 U.S.C. §501 3, 4, 14, 15

29 U.S.C. $501 (a) 2, 3, 9, 10, 13, 14, 17, 19

Other

Elliott Bill, H. R. 8342, 86 Cong. 1st Sess., Section 501

(1959) | 14

Elliott Bill, Supplementary Report, H. R. Rep. No.

741, 86 Cong. Ist Sess. 81 (1959) i4

Interim Report of the Select Committee on Improper

Activities in the Labor or News Review, Sp. Rep.

No. 1417, 85th Cong., 2d Sess. (1958) 1)

Supreme Court of the United States

October Term, 1975

No. .

NORMAN F. BLANCHARD, et al.,

Petitioners,

vs.

ROLLA R. JOHNSON, et al.,

Respondents,

and

MARINE ENGINEERS BENEFICIAL ASSOCIATION,

ASSOCIATED MARITIME OFFICERS, AFL-CIO,

Applicants for Intervention.

PETITION FOR WRIT OF CERTIORARI

“Tu the United States Court of Appeals

For the Sixth Circuit

Petitioners pray that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the Sixth Circuit in this case.

2

OPINIONS BELOW

The opinion of the Court of Appeals has not yet been

reported, but is printed in the Appendix attached hereto,

infra, p. A4. The opinion of the District Court is reported

as Blanchard, et al. v. Johnson, et al., 388 F. Supp. 208

(1975) and is printed in the Appendix, infra, p. Al.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered

on April 2, 1976. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

QUESTION PRESENTED

Does a rank and file member who casts a vote for

union affiliation receive a meaningful choice within the

meaning of 29 U.S.C. $411(a) (1) and §501(a) if only one

of several bona fide proposals for affiliation is placed on

the ballot?

STATUTORY PROVISIONS INVOLVED

Section 101(a), Labor-Management Reporting and

Disclosure Act of 1959, 29 U.S.C. §411(a) (1):

Equal Rights. - Every member of a labor organ-

ization shall have equal rights and privileges within

such organization to nominate candidates, to vote in

elections or referendums of the labor organization,

to attend membership meetings, and to participate in

the deliberations in voting upon the business of such

meetings, subject to reasonable rules and regulations

in such organization’s constitution and by-laws.

3

Civil Enforcement, Section 102:

Any person whose rights secured by the provi-

sions of this title have been infringed by any violation

of this title may bring a civil action in a District Court

of the United States ‘or such relief (including injunc-

tions) as may be appropriate. Any such action

against a labor organization shall be brought in the

District Court of the United States in the district

where the alleged violation occurred, or where the

principal office of such labor organization is located.

Section 501, Labor-Management Reporting and Dis-

closure Act of 1959, 29 U.S.C. §501 (a):

Fiduciary responsibility of officers of labor or-

ganizations - The officers, agents, shop stewards, and

other representatives of a labor organization occupy

positions of trust in relation to such organization and

its members as a group. It is, therefore, the duty of

each such person, taking into account the special

problems and functions of a labor organization, to

hold its money and property solely for the benefit

of the organization and its members, and to manage,

invest, and expend the same in accordance with its

constitution and by-laws and any resolution of the

governing bodies adopted thereunder, to refrain from

dealing with such organization as an adverse party

or in behalf of an adverse party in any matter con-

nected with his duties and upholding or acquiring

any pecuniary or a personal interest which conflicts

with the interest of such organization, and to account

to the organization for any profit received by him

in whatever capacity in connection with transactions

conducted by him or under his direction on behalf

of the organization. A general exculpatory provision

in the constitution and by-laws of such a labor organ-

ization or a general exculpatory resolution of a gov-

erning body purporting to relieve any such person of

liability for breach of the duties declared by this

section shall be void as against public policy.

4

STATEMENT OF THE CASE

A. Introduction

On June 18, 1974, Petitioners who were all members

in good standing of the Great Lakes and Rivers District,

Masters, Mates and Pilots—Local 47 (hereinafter Local

47)' filed a complaint along with an application for leave

to sue and a motion for a preliminary injunction in the

Western Division of the United States Federal District

Court for the Northern District of Ohio. The complaint

was based on §§101, 102 and 501 of the Labor Manage-

ment Reporting and Disclosure Act (hereinafter LMRDA)

and §301 of the Labor Management Relations Act (here-

inafter LMRA), 29 U.S.C. §§185, 411, 412 and 501. Peti-

tioners sought to have the balloting on a referendum for

affiliation of Local 47 with the International Longshore-

men’s Association, AFL-CIO (hereinafter ILA) enjoined,

the ballots already cast impounded and destroyed, and any

future referendum on the question of affiliation, as well

as any actual merger or affiliation, enjoined unless a plan

therefor had first been submitted to the Court which

contained provisions for full disclosure of all relevant

terms of any proposed affiliation, accompanied by suffi-

cient time before balloting for members to offer their views

thereon, and adequate protection for the secrecy and in-

tegrity of the ballot.

1 Local 47 is a “Labor Organization” within the meaning of

29 U.S.C. §402. Its membership is made up of approximately 550

men who are employed as supervisory personnel on ships which

sail the Great Lakes and adjoining rivers and waterways. The

members of Local 47 are seafaring men who spend most of the

year on ships sailing the Great Lakes. The principal office of

Local 47 is in Cleveland, Ohio. The individual Defendants in this

action are or were officers and members of the Executive Board

of Local 47 (A. 202, 215). (A refers to the Appendix in the Court

of Appeals.)

5

B. Background

While Local 47 was going through the process of

disaffiliation with the IOMMP,’ it began to receive in-

quiries from other organizations as to possible affiliation

with them. These included inquiries from the Interna-

tional Brotherhood of Teamsters, the Marine Engineers

Beneficial Association—Associated Maritime Officers,

AFL-CIO (hereinafter MEBA), the ILA, the Steelworkers

Union, and Local 333, United Marine Association (A. 102-

104, 129).

The MEBA proposal for affiliation which was made

to Local 47 included a promise of complete autonomy for

Local 47 (A. 129). MEBA also made a number of ad-

ditional proposals accompanying their offer of affiliation

which, arguably, would have been of great benefit to the

members of Local 47.*

*-For many years, Local 47 was affiliated with the Interna-

tional Organization of Masters, Mates and Pilots (hereinafter

IOMMP), but in November, 1973, it broke away from that organ-

ization because the IOMMP made certain changes in its constitu-

tion which threatened the autonomy of Local 47 (A. 126, 127,

137). Part of these constitutional changes involved the IOMMP

affiliation with the ILA.

* These proposals were set down in writing in a letter from

Raymond T. McKay, President of MEBA to Defendant Duff the

newly elected President of Local 47, on November 11, 1974 and

included:

a. a grant of an autonomous charter to Local 47 with a right

to retain its own treasury, officers, constitution and

by-laws;

b. the right to negotiate contracts in Local 47’s existing

bargaining units and complete protection of the AFL-

CIO no-raiding agreement;

c. the right to continued, non-interference with the opera-

tion of the Great Lakes and Rivers District and Maritime

Pension Plan;

d. a waiver of all charter fees and back dues;

e. a per capita fee of $1.35 per member per month payable

to MEBA for active members only, not retired members;

(Footnote continued on following page)

Around May 16, 1974, Respondent Johnson acting

alone and without the other members of the Executive

Board of Local 47, completed negotiations with President

Thomas W. Gleason of the ILA for an affiliation of Local

47 with the ILA (A. 140). At no time did Johnson or Vice

President Duff of Local 47 read the constitution of the

ILA, preferring instead to rely upon the oral assurances of

its President that Local 47 would retain its autonomy‘

(A. 142-143).

On May 24, 1974, the Defendants mailed a ballot to

each member of Local 47 for a referendum on the question

(Continued from previous page)

f. available office space in MEBA offices and use of their

hard and soft ware by Local 47;

g. a joint organizational campaign on the Great Lakes and

Rivers to be financed by MEBA; and

h. access to MEBA’s legislative, lobbying machinery (A.

225-228) .

The Teamsters apparently also offered Local 47 a million

dollar fund for organization purposes (A. 129). However, for

reasons of their own, the Executive Board chose to vote on and

submit only the affiliation proposal from the ILA to the member-

ship for a vote (A. 104).

*The price of the affiliation agreement with the ILA also

meant that Local 47 members would have to pay $1.35 per month

per capita tax which would amount to approximately $9,000 per

year (A. 106, 143). Neither was there any written understanding

as to the relationship of Local 47 and the ILA in regards to the

certain articles of the ILA’s constitution which raised serious

questions as to whether Local 47 would remain autonomous or

not (A. 142-143). The agreement between Defendant Johnson

and President Gleason of the ILA was finalized in a series of cor-

respondence dating from May 17, 1974 to May 24, 1974 (A. II:

2-5).

The Executive Board members discussed and approved the

affiliation through a series of individual telephone calls, with

nothing conveyed to them in writing and no group debate or dis-

cussion on the merits or liabilities of the proposed affiliation

(A. 99-100, 147).

The Executive Board of Local 47 did not discuss the terms

or conditions for affiliation a Pog Ray eT offers ee

accepting the ILA proposal (A. 1 . At no time was the

understanding entered into between Defendant Johnson and

President Gleason of the ILA reduced to writing and communi-

cated to the membership of Local 47 (A. 104-105, 111).

7

of affiliation with the ILA (A. 16-19, 147). No other

proposal was offered for a vote (A. 149-150). The letter

attached to the ballot purported to represent the entire

agreement between Local 47 and the ILA, but it contained

no mention of the previously discussed oral agreements for

the payment of a per capita tax, or of any constitutional

provisions of the ILA (A. 141-144). This letter contained

all of the information which the Executive Board in their

infinite wisdom chose to divulge to the members of Local

47° (A. 104-105).

The First Referendum was enjoined and the ballots

impounded by the District Court because the secrecy and

the integrity of the ballot had been seriously violated.®

The Second Referendum was also enjoined by the Court

basically because insufficient notice and information had

been given to the membership.‘

* The reason given by Defendant Johnson for the appalling

lack of communication with the seafaring membership concern-

ing the other affiliation offers which had been received was that

as the full time staff officer for Local 47 he did not believe this

was in the best interest of the membership to know (A. 129, 152).

The only other means by which the membership of Local 47

would have known of the proposed plans to affiliate with the ILA

was if they had attended the 1974 union convention where the

idea was casually discussed, but Local 47’s constitution and by-

laws require you to be an elected delegate to attend the conven-

tion with reimbursed expenses (A. 153). Any other member

of Local 47 who wished to attend was required to travel to the

convention site from his own home at his own expense.

“The referendum ballots were sent out to members of

Local 47 to be returned to a post office box in Cleveland by

June 24, 1974. The outside envelope which the members returned

contained the signature and membership number of the voter.

The inside envelope contained the ballot (A. 115). Defendants

Johnson and Duff and other persons under their direction would

periodically pick up the ballots from the post office box and out-

side the presence of any neutral observer, or any observer at all,

open both ballots thereby violating the secrecy of the balloting

and enabling Defendants to determine the trend of the election

so they could obtain more favorable votes for affiliation with the

ILA if such was needed (A. 115).

7 The Court issued its Order July 5, enjoining the conduct

(Footnote continued on following page)

8

On December 3, an informal hearing was conducted

by the Court in chambers to approve a plan for the third

referendum which would conform to the Court’s July 5,

1975 order. At that hearing the Court denied MEBA’s

motion to intervene in this action but ordered that the

affiliation proposal of MEBA be placed on the ballot along

with that of the ILA.”

C. Proceeding Below

On appeal to the Sixth Circuit, the Court of Appeals

affirmed the entire District Court’s decision with the ex-

ception of its direction to include the MEBA proposal on

a referendum ballot.

Petitioners now petition this Court to review the

Court of Appeals judgment of reversal in favor of the

Respondent.

(Continued from previous page)

of the second referendum and any future referendum unless

approved by the Court. The Court went on to hold:

“No such plan will be approved unless it contains, at a min-

imum, adequate safeguards for the secrecy of the ballot, full

disclosures of all the terms of all affiliation proposals, as well

as copies of the constitution of the organization with which

affiliation is to be considered and voted upon, and access to

the mailing list of Defendant Local 47 by all members in

sufficient time to express their views before a vote is to

begin.” (A. 200-211).

‘In support of this aspect of its order the Court stated:

“ _. Although it is true that §3 of Article XXIII of the Con-

stitution of Local 47 does not require that all affiliation

proposals be voted upon the same ballot, it somehow seems

unnecessarily grudging for the union officers to conduct a

referendum on only the proposal which they personally sup-

port. This Court has previously indicated that it would not

hesitate to enjoin the Defendants from using the Union

Constitution to avoid a referendum on an affiliation proposal.

Such a refusal by union officers, who are, after all, fidu-

ciaries, runs afoul of the policies which underlie §$§411 and

501, because seriatim balloting in this case may result in

unfair unadvantage for the proposal favored by the union

leadership. Thus, the Court will enjoin the use of the con-

stitutional provision and order the MEBA proposal placed

on the ballot along with the ILA proposal.” (A. 229).

9

REASONS FOR GRANTING THE WRIT

I. This Case Presents an Important Issue of National

Labor Policy Requiring Resolution by This Court.

A. The issue in this case is one of first impression

involving the construction of the Labor Manage-

ment Reporting and Disclosure Act, 29 U.S.C.

§§411 (a) (1) and 501 (a).

The issue presented by this case” is of widespread

nationwide concern as demonstrated by substantial litiga-

tion involving similar issues in other circuits.’’ Since the

“It should be noted that the decision of the Court of Ap-

peals is unclear as to which statute its decision is grounded upon.

The Court of Appeals held that the District Court unnecessarily

intruded into the internal operations of Local 47 by directing

that the MEBA proposal be added to the ballot. And the Court

thus concluded that §411 (a) (1) did not disallow seriatim voting

on affiliation proposals so long as sufficient information about all

proposals which were received by the Executive Board were

disseminated to the membership. Consequently, an initial read-

ing of the decision of the Court of Appeals seems to indicate that

the Court only considered 29 U.S.C. §411 (a) (1) in arriving at

its decision.

Footnote 8 of the Court’s decision, which apparently was an

attempt to clarify the decision, only helps to becloud it. The

footnote reads as follows:

“The portions of the Judgment of the District Court which

we affirm are properly grounded upon Section 411 (a) (1).

The actions directed by the portion of the Judgment which

we reverse would be improper under either Section 411 (a)

(1) or Section 501(a). Thus we need not reach the ques-

tion of the applicability of the Section 501 (a) fiduciary duty

to the instant case.”

The footnote indicated that the Court did not reach the ques-

tion of the applicability of Section 501(a). However, the second

sentence of the footnote indicates that the actions directed by

the Judgment would be improper under either Section 411 (a)

(1) or Section 501(a). Thus, it is apparent that the District

Court indeed did consider Section 501(a) in concluding that the

insertion of MEBA on the ballot would be improper under both

sections.

1” Cefalo v. Moffett, 449 F.2d 1193 (D.C. Cir., 1971); High-

way Truck Drivers v. Cohen, 182 F. Supp. 608 (E.D. Pa., 1960),

aff'd 284 F.2d 162 (3rd Cir., 1960), cert denied, 365 U.S. 833

(Footnote continued on following page)

10

enactment of Landrum-Griffin voluminous discussion of

the duties imposed upon unions by $411 (a) (1) and

$561 (a) has appeared in the literature,'' yet this Court

has not set forth the comprehensive standards needed to

protect the rights of millions of rank and file members

when they are voting in union conducted elections.

1. Equal voting rights

The impetus behind the Labor-Management Report-

ing and Disclosure Act of 1959 was the shocking findings

of the McClellan Committee. The entire thrust in the first

report of the McClellan Committee was in support of a

proposition that unions should be democratic.’* Congress

in enacting the Bill of Rights of the LMRDA, Section 411

(a) (1), determined:

(Continued from previous page)

(1961); Keck v. Employees Independent Ass’n., 387 F. Supp. 241

(E.D. Pa., 1974); Kerr v. Shanks, 466 F.2d 1271 (9th Cir., 1972);

Navarro v. Gannon, 385 F.2d 512 (2nd Cir., 1967); Nelson v.

Johnson, 212 F. Supp. 233 (D. Minn., 1963), aff'd 325 F.2d 646

(8th Cir., 1963); Pignotti v. Sheet Metal Workers, 477 F.2d 825

(8th Cir., 1973), cert. denied 414 U.S. 1067 (1974); Sabolsky v.

Budzonowski, 457 F.2d 1245 (3rd Cir., 1972), cert. denied, 409

U.S. 853 (1973); Sertic v. The District Council of Carpenters, 423

F.2d 515 (6th Cir., 1970); Schuchardt v. Millwrights & Mach.

Erectors Loc. Union No. 2834, 380 F.2d 795 (10th Cir., 1967);

Smith v. General Truck Drivers, 181 F. Supp. 14 (D.C. Calif.,

1960).

™ Aaron, The Labor Management Reporting and Disclosure

Act of 1959, 73 Harv. L. Rev. 851 (1960); Cox, Internal Affairs

of Labor Unions Under the Labor Reform Act of 1959, 58 Mic.

L. Rev. 819 (1960); Dugan, Fiduciary Obligations Under the New

Act, 48 Geo. L. J. 277 (1959); Hickey, The Bill of Rights of Union

Members, 48 Geo. L. J. 226 (1959); Rothman, Legislative History

of the “Bill of Rights” for Union Members, 45 Minn. L. Rev. 199

(1960); Union Officers-Fiduciary Duties, 15 A.L.R.3d 939; Wol-

lett, Fiduciary Problems Under Landrum-Griffin, 13 N.Y.U. ANN.

Conr. oN LaBor 267 (1960).

12 See, Interim Report of the Select Committee on Improper

Activities in the Labor or News Review, Sp. Rep. No. 1417, 85th

Cong., 2d Sess. (1958).

11

“The efficiency of a monolithic union under autocratic

rule is gained at too great a price if it necessitates any

sacrifice of the members’ rights to determine the

course of their organization. The balance was struck

in favor of union democracy. Only a union responsive

to the rights of its members can achieve the ideals of

responsibility, opportunity and_ self-determination

that are recognized as fundamental velues to the labor

movement.” Navarro v. Gannon, 385 F.2d 512, 518

(2nd Cir., 1967).

The basic purpose then of the “Bill of Rights” is to

assure to union members a basically democratic union and

a concomitant right to determine the ultimate course of

their organization.’* One of the first cases supporting these

rights was Young v. Hayes, 195 F. Supp. 911 (D.D.C.,

1961). In that case union members brought an action pur-

suant to §411 (a) (1) to restrain the union from putting

into effect constitutional amendments approved by the

general membership in a vote on a ballot that grouped 47

such amendments under one proposal. Granting the mem-

bers’ request for injunctive relief, the Court held:

“. . It would appear to this Court that a plain reading

of the Bill of Rights portion, as well as others, is a

clear indication by Congress that the right to vote ex-

tended in the Act is not a mere naked right to cast a

ballot. Rather, the general tenor of the act would seem

to indicate that those who make up the management

of the union may not submit amendments for referen-

dum to the membership in any form they wish. Per-

mitting a union to submit propositions to its member-

ship in any form they wish might very well open up

the way of usurpation of power by union management,

which the Court cannot believe was intended by the

framers of the Landrum-Griffin Act.” (emphasis

added )

™ Schuchardt v. Millwrights & Machine Erectors, Loc.

Union No. 2834, 380 F.2d 797 (10th Cir., 1967), Navarro v. Gan-

non, 385 F.2d 512 (2nd Cir., 1967).

12

The next case in this area is Sertic, et al. v. The Dis-

trict Council of Carpenters, 423 F.2d 515 (6th Cir., 1970).

The principal question presented in that case was whether

a referendum resulting in an increase in dues of labor

union members, could be combined on the same ballot

with approval of negotiations of a wage increase without

violating $411 (a) (3) of the Act. The Court held that

voting on multiple questions precluded a meaningful vote

on the dues issue alone, and declared the referendum in-

valid as not complying with the requirements of the Act."

Finally, in Sheldon v. O’Callaghan, 497 F.2d 1276

(2nd Cir., 1974), several union members sought an injunc-

tion to prevent a new constitution from taking effect be-

cause the officers of the union were, inter alia, stressing

the popular features of the proposed constitution while

playing down or refusing to communicate to the members

those aspects which would have been unpopular with many

members of the union. The plaintiffs based their suit on

$411, contending among other things that the union of-

ficers had violated that section in:

refusing to permit Plaintiffs to transmit their views

to the other members of the union before or during

the voting period or to have access to the union’s

mailing list in order to disseminate their views.

14 At first glance this case would appear to stand for the

opposite proposition that is espoused in the instant case. How-

ever, even though the Court in Sertic was concerned with a dif-

ferent sub-paragraph of $411 (a), the rationale behind the deci-

sion is still applicable here. That rationale being that the members

are entitled to a meaningful and equal vote on issues that affect

them. In Sertic the members were deprived of this right by the

inclusion of multiple issues on one ballot. However, in the pres-

ent case the members are being denied a meaningful choice by

the exclusion of MEBA from the ballot. When one examines the

long continuing struggle between the different labor unions for

affiliation with Local 47, one has to conclude that the ILA would

be given an unfair advantage by seriatim voting and that the

members would be deprived of a meaningful choice. There can

be no meaningful choice where there is only one union on the

ballot.

13

The Court concluded that the LMRDA required the

Defendants to make the list of members of the Union avail-

able to a mailing service so that the Plaintiffs could trans-

mit their views on the issues involved in the referendum

to the membership.

That Respondents here have chosen seriatim ballot-

ing, just as they chose to violate the secrecy of the ballot

in the first referendum and chose to not disclose important

information to the members in the second referendum,

does not insulate them from the requirements of §411 (a)

(1). The clear policy of the Act is to bid farewell to the

regime of benevolent well-meaning union autocrats and

to give favor to a system of union democracy with its con-

comitants of free choice and self-determination. It is re-

spectfully urged that free choice and self-determination,

what petitioners call a meaningful choice, can only be ac-

complished by having both affiliation referenda on the

ballot.

2. Fiduciary duties of union officials

Section 501 (a) declares that union officials occupy

positions of trust with respect to their union. There has

been considerable discussion and disagreement about the

breadth of the fiduciary obligations imposed upon union

officials by this section.”

The Respondents contend that the duty imposed upon

them pursuant to §501 (a) is to be narrowly construed

and limited to only fiscal matters which affect Local 47.

Though the Circuits are not in agreement as to the

import of this section,”* the “majority view” is that §501

Clark, The Fiduciary Duties of Union Officials Under

Section 501 of the LMRDA, 52 Munn. L. Rev. 437, 440 (1967).

% See, Gurton v. Arons, 339 F.2d 371 (2nd Cir., 1964);

Yanity v. Benware, 376 F.2d 197 (2nd Cir., 1967); and Phillips v.

Osborne, 403 F.2d 826 (9th Cir., 1968) for the holding that §501

is meant to cover only money and property.

'? See footnote 17 on following page.

14

(a) imposes a duty upon the Respondents which is “as

broad as human experiences in the labor field.” Nelson v.

Johnson, supra, note 10. Indeed, the legislative history

supports this broader construction.”

(Continued from previous page)

17 Further support for the proposition that §501(a) applies

to non-fiscal as well as fiscal matters can be found in the language

of the statute itself. The second sentence of §501(a) which sup-

posedly refers only to fiscal wrongdoing, contains language which

has been interpreted as imposing fiduciary duties in a non-fiscal

nature. See, Nelson v. Johnson, supra at note 10; Sabolsky v.

Budzonowski, supra at note 10; Pignotti v. Sheet Metal Workers,

supra at note 10; Rosen, Fair Representation, Contract Breach

and Fiduciary Obligations; Unions, Union Officials and the

‘ieee in Collective Bargaining, 15 Hastincs L.J. 391, 430

1964).

Despite the scarcity of direct precedent, it seems plain that

all union officers and employees have always been subject to the

usual common-law fiduciary duties of an agent. See Cox,

Internal Affairs of Labor Unions Under the Labor Reform Act of

1959, 58 Micu. L. Rev. 819 (1960); Clark, The Fiduciary Duties

of Union Officials Under §501 of the LMRDA, 52 Minw. L. Rev.

437 (1967); Dusing v. Nuzzo, 26 N.Y.S.2d 345 (1941); Tinkler

v. Powell, 23 Wyo. 352, 151 P. 1097 (1915); House v. Schwartz, 18

Misc.2d 21, 25, 188 N.Y.S.2d 308, 313 (Sup. Ct., 1959).

18 Section 501 of the LMRDA was taken in total from the

Elliott Bill, H. R. 8342, 86 Cong. 1st Sess. Section 501 (1959).

The Bill was reported out by the House Committee on Education

and Labor. Since there is no indication in the legislative history

that any changes were intended by the House when it included

the fiduciary provision of the Elliott Bill as part of the Landrum-

Griffin Bill which was ultimately enacted, the supplementary

report accompanying the Elliott Bill is extremely relevant. As

to whether the fiduciary duty of a union official extends to non-

fiscal matters, the supplementary report notes:

“We affirm that the committee bill is broader and stronger

than the provisions of S. 1555 which relate to fiduciary re-

sponsibilities. S. 1555 applied the fiduciary principle to union

officials only in their handling of ‘money or property’ (See,

S. 1555 Sec. 610), apparently leaving other questions to the

common law of the several States. Although the common law

covers the matter, we considered it important to write the

fiduciary principle explicitly into the federal labor legisla-

tion. Accordingly, the committee bill extends the fiduciary

principles to all the activities of union officials or other union

agents or representatives.” H. R. Rep. No. 741, 86 Cong. 1st

Sess. 81 (1959).

_———

15

The duties created in §501 (a) must include the duty

to keep the membership informed on matters which they,

the rank and file, must decide. It is the duty of the union

leadership to see that the lines of communication and dis-

semination of views and opinions are kept open and work-

ing, especially when, as here, affiliation with the ILA would

change the very form and existence of the local union.

The Respondents in the instant case have breached the

duty owed to the members of Local 47 pursuant to §501

(a) by insisting on seriatim balloting thus failing to pro-

vide the members of Local 47 with a meaningful vote on

the affiliation referendum.

The Respondents defend their breach of trust by as-

serting that their actions are proper under the union’s

constitution. However, the Courts have not been hesitant

to enjoin activity protected or authorized by union by-laws

and constitutions when it is shown that it violates the pro-

visions of the LMRDA. See, Pignotti v. Sheet Metal Work-

ers, supra, note 10; Sabolsky v. Budzanowski, supra, note

10.

The compelling need for this Court to exercise its

certiorari jurisdiction in a case such as this to resolve these

conflicts was cogently articulated by a member of the IIli-

nois bar, R. Theodore Clark, Jr.:

“The imposition of fiduciary duties upon union officials

represents an important land mark in federal labor

legislation. As one writer has noted, they represent

the judgment of Congress, which most certainly will

never be reversed, as to the minimum applicable and

legal standards by which the behavior of union leaders

must be measured. (Footnote omitted) It is unfortu-

nate, however, that Congress in enacting such an im-

portant provision used language which is open to so

many varying interpretations. Although the process

of ‘litigation elucidation’ (Footnote omitted) has

resolved some of the uncertainties, the Supreme Court

16

will undoubtedly have to resolve others, especially

with respect to the breadth of the fiduciary duties im-

posed upon union officials.” The Fiduciary Duties of

Union Officials Under Section 501 of the LMRDA,

52 Minn. L. Rev. 437, 481.

B. Review of this case is essential to the preserva-

tion of the fundamental rights of the union mem-

bers and essential to guarantee the full and active

participation by the rank and file in the affairs

of their union.

Another compelling reason for this Court to grant

certiorari in this case is to protect and preserve the funda-

mental principle enunciated in Musicians Federation v.

. Wittstein, 379 U.S. 171 (1964) and Calhoon v. Harvey,

379 U.S. 134 (1964) that there should be full and active

participation by the rank and file in the affairs of the

union. In the former case the Court cited with approval

the following language from the Senate Committee report

accompanying S.1555 (Kennedy-Ervin, Bill):

“Union members have a vital interest therefor in the

policies and conduct of union affairs. To the extent

that union procedures are democratic they permit the

individual to share in the formation of union policy.

This is not to say that in order to have democratically

responsive unions, it is necessary to have each union

member make decisions in detail as in a New England

town meeting. What is required is the opportunity

to enforce policy and leadership by free and periodic

elections.”

The instant case, however, does not deal with the

members making decisions concerning details of union

business. On the contrary, the question of affiliation with

the ILA or the MEBA concerns the very existence of Local

47. It is this kind of decision that should only be made

with the elective procedure guaranteed all the trappings

of the democratic process. This ought to include the right

17

to make a meaningful choice between bona fide competing

entities.

Though the Musicians Federation v. Wittstein case

concerned Section 411(a) (3) (B) rather than Section 411

(a) (1) or Section 501 (a), petitioners submit that it is still

applicable. In fact, these latter sections impose a greater

duty upon the union leadership and a greater right is pro-

tected by them than by the former section. In Calhoon

the Court long ago recognized the subtle ways by which

election rights can be removed through discrimination at

a less visible stage of the political process.

Just as the Court was concerned with infringement

of the equal right to nominate candidates for union office

so should the Court be concerned about the infringement

of equal opportunity to vote for affiliation referenda. Both

the right to nominate and the right of affiliation concern

fundamental voting rights of the rank and file members

and should be protected accordingly.

A fiduciary generally owes a duty of loyalty in consci-

entious dealing toward another because of the nature of

the relationship or the subject matter of the transaction.”

Preserving union democracy often involves this duty of

loyalty in protecting individuals and minorities against

numerical majorities. In this country we have not been

willing to trust even governmental self-restraint in dealing

with basic liberties. We rely upon rigid constitutions en-

forced by an independent judiciary. Labor unions play a

more important role in the community than other private

organizations for their powers are greater and their func-

tions are different from those of a fraternal association or

19“Some fiduciary relations are undoubtedly more intense

than others. The greater the independent authority to be exer-

cised by the fiduciary duty, the greater the scope of the fiduciary

duty. Thus a trustee is under a stricter duty of loyalty than is

an agent upon whom limited authority is conferred .. .” Scott,

The Fiduciary Principl-. 37 Cautr. L. Rev. 539 (1949).

18

a social club. Even a corporation rarely affects a share-

holder to the same degree that the bargaining representa-

tive influences the lives of employees in the bargaining

unit. Furthermore, labor unions occupy their present posi-

tion largely by force of law:

“The government which gives unions this power has

the concomitant obligation to provide safeguards

against abuse. The most effective safeguard is legal

assurance that unions will be responsive to the desires

of the men and women who they represent.””

Il. This Case Presents a Good Vehicle for This Court

to Consider and Decide the Issue Presented Herein.

The facts of this case present the competing policy

interest involved in the clearest and most compelling light

and therefore provide this Court with an optimal opportu-

nity to consider and decide the substantial and unresolved

legal issue contained herein. Throughout these proceed-

ings the officers of Local 47 have referred to MEBA’s ef-

forts to be on the affiliation ballot as a “raid” on Local 47

members. On the Contrary, however, there is overwhelm-

ing evidence that establishes that the Respondents, and not

MEBA, by their conduct in attempting to effectuate an

affiliation with the ILA, “raided” the rights of the rank

and file of Local 47. The Executive Board of Local 47 did

not discuss the terms and conditions of the other affiliation

offers before accepting the ILA proposal,” understandings

entered into between Respondents and the ILA were not

reduced to writing nor were they communicated to the

membership of Local 47,” and adequate safeguards for the

““ Cox, The Role of Law in Preserving Union Democracy,

72 Harv. L. Rev. 609, 610-611 (1959).

“' A. 150-151.

“2 A. 104-105, 111.

19

secrecy of the ballot were ignored.” It was this blatant

disregard for the rights of the rank and file which led the

District Court Judge to conclude that the Respondents had

violated Section 411 (a) (1) and had breached their duty

under Section 501 (a), thus requiring him to enjoin, in

effect, not one, but three affiliation referenda.

The rights of the individual union member must be

defined when the very existence of their organization is

at stake. The parameters of the labor law issue contained

in this case are of nationwide concern and in need of clarifi-

cation by this Court.

CONCLUSION

The central issue in this case is whether the rank and

file members of Local 47, whose voting rights have been

tread upon, are to be deprived of a meaningful vote since

they will not be permitted to choose between bona fide

competing affiliation proposals.

If the answer is to be “‘yes’”’, it should be so only after

a reasoned consideration and explanation by this Court of

the competing National Labor Law policy interests which

compel such a result.

Accordingly, Petitioners pray that this Court grant

their petition for a writ of certiorari.

Respectfully submitted,

GREEN, LACKEY, NEWCOMER

and HArRIs

By: Merritt W. Green, I]

GERALD B. LACKEY

330 Spitzer Building

Toledo, Ohio 43604

(419) 243-1105

Counsel for Petitioners

“4 A. 115.

Al

APPENDIX

OPINION OF THE DISTRICT COURT

(Filed January 20, 1975)

Civil Action C74-546

UNITED STATES DISTRICT COURT

NorTHERN DistTrRICT oF OHIO

WESTERN DIVISION

NORMAN F. BLANCHARD, et al.,

Plaintiffs,

Vv.

ROLLA R. JOHNSON, et al.

Defendants

and

MARINE ENGINEERS BENEFICIAL ASSOCIATION,

ASSOCIATED MARITIME OFFICERS, AFL-CIO,

Applicants for Intervention.

ORDER

This cause is before the Court on a motion by District

2, Marine Engineers Beneficial Association. Associated

Maritime Officers [hereafter MEBA|]| to intervene as a

party plaintiff and on a motion by MEBA to be placed

on the ballot on a referendum to be held on the question

of affiliation. The defendants have also petitioned the

Court for its approval of their plan for the conduct of the

balloting. All have briefed these matters.

As the Court has taken pains to show in its Mem-

orandum of July 9, 1974, this suit is based on statutes, 29

A2

U.S.C., $$412 |sic] and 501, which confer certain rights on

members of labor organizations. Thus, there are no rights

here being asserted which benefit unions as distinct from

their members. Therefore, since Rule 24, Federal Rules

of Civil Procedure, assumes that there is an intersection

of interests among plaintiffs and intervenors, it is clear

that the motion to intervene of MEBA must be denied.

Placing MEBA on the affiliation referendum ballot

is quite another matter however. Although it is true that

$3 of Article XXIII of the Constitution of Local 47 does

not require that all affiliation proposals be voted upon

on the same ballot, it somehow seems unnecessarily grudg-

ing for the union officers to conduct a referendum on only

the proposal which they personally support. This Court

has previously indicated that it would not hesitate to en-

join the defendants from using the union constitution to

avoid a referendum on an affiliation proposal. Such a

refusal by union officers, who are, after all, fiduciaries,

runs afoul of the policies which underlie §§ 411 and 501,

because seriatim balloting in this case may result in unfair

advantage for the proposal favored by the union leader-

ship. Thus, the Court will enjoin the use of the constitu-

tional provision and order the MEBA proposal placed on

the ballot along with the ILA proposal.

As to the defendants’ plan for holding the balloting,

the Court expressly approves the use of the American

Arbitration Association.

Plaintiffs’ objections to the timing of the referendum

do not appear to be well taken. Given the wide geographic

dispersal of the membership, no time would seem to be

particularly felicitous for any election. However, the wide

dispersal does argue for a maximum period of time be-

tween the mailing of ballots and the deadline for their

return so as to facilitate the free discussion and inter-

change of ideas which lie at the heart of § 411. The Court

AS

therefore finds any period of less than thirty (30) days

for balloting to be suspect, within the facts of this case.

The Court will thus require at least thirty (30) days for

the members to discuss the issues and return their ballot.

Plaintiffs’ objections to the limitations on the mailing

of views by members are well taken. The Court agrees

that there is no reason why members should be denied the

opportunity to mail their views as often as they wish and

at the times they wish. Since the concept of majority rule

is at the center of federal labor policy, Sheldon v. O’Cal-

laghan, 497 F.2d 1276, 1282, 86 LRRM 3064 (2nd Cir.

1974), it is imperative that the lines of communication

among the membership be as unfettered as reason can

make them. Union officials bear a heavy burden of justi-

fication for any acts which unnecessarily restrain the

ability of the members to discuss matte:s on which they are

to vote. No justification for this limitation has been of-

fered by the union leadership and none appears to the

Court. Accordingly, the plan as proposed is modified to

permit any member to mail his views at any time to the

membership as often as he chooses so long as he bears the

expense of the mailings.

To sum up: The motion of MEBA to intervene as a

party plaintiff is denied; the affiliation proposal of MEBA

shall appear on the ballot along with that of the ILA; the

referendum shal! be held at such time as defendants pro-

pose through the auspices of the American Arbitration

Association; defendants shall permit at least thirty (30)

days for dissemination of views by the membership fol-

lowing the mailing of the ballots; and any member shall be

permitted to mail his views at any time to the membership

through the AAA, as often as he wishes so long as he bears

the expense thereof.

It IsSo OrpEReED.

/s/ NicHotas J. WALINSKI

United States District Judge

A4

OPINION OF THE COURT OF APPEALS

(Filed April 2, 1976)

Nos. 75-1606, 75-1607

UNITED STATES COURT OF APPEALS

For THE S1xtTH CIRCUIT

NORMAN F. BLANCHARD, et al.,

Plaintiff-Appellees,

V.

ROLLA R. JOHNSON, et al.,

Defendants-Appellants.

APPEAL from the United States District Court for the

Northern District of Ohio, Eastern Division.

Before: Epwarps, CELEBREZZE and ENGEL, Circuit

Judges.

CELEBREZZE, Circuit Judge: Appellees, members of

the Great Lakes and Rivers District, Masters, Mates and

Pilots—Local 47 (hereinafter Local 47), initiated this

action in the District Court seeking to enjoin a referendum

which was in progress among the members of Local 47.

The referendum raised the question of whether Local 47

should affiliate with the International Longshoreman’s

Association (hereinafter ILA). Appellees were sup-

porters of a rival union, District II Marine Engineers

Beneficial Association—Associated Maritime Officers

(hereinafter MEBA), and of its attempt to convince Local

47 to affiliate with MEBA. Named as defendants were

Local 47; Rolla R. Johnson, the Local’s President and a

member of its Executive Board; and seven other members

of the local’s Executive Board. Appellees, in their Com-

plaint, alleged that the officers violated their fiduciary

AS

duties to and deprived the members of Local 47 of their

right to “an intelligent and knowledgeable” vote on the

issue of affiliation.

Local 47 has approximately 550 members, all of whom

are supervisory personnel on ships which sail the Great

Lakes and adjoining waterways. Due to the limitation on

membership to supervisors, Local 47 is regulated by the

Labor Management Reporting and Disclosure Act of 1959

(hereinafter LMRDA), 29 U.S.C. § 401 et seq. (1970).

The nature of their employment makes communica-

tion among members of Local 47 difficult. An annual con-

vention is held in March, and every third year officers

are nominated by the convention delegates and thereafter

elected by mail ballot of all members.

In November of 1973 Local 47 disaffiliated itself

from the International Organization of Masters, Mates and

Pilots, because that organization had changed its constitu-

tion in a manner which threatened the autonomy of Local

47. Thereafter, a number of labor organizations sought

the affiliation of Local 47, including ILA, MEBA and the

Teamsters. The District Court found that these three

organizations submitted definite affiliation proposals to

the Executive Board of Local 47. The Executive Board,

pursuant to Article XXIII of the Constitution of Local 47,

considered and approved the ILA proposal and submitted

it by referendum to the membership for ratification or

rejection. Appellees contended below that the Executive

Board, whose members considered the ILA proposal supe-

rior to the other proposals, failed to provide the member-

ship with sufficient information about the other proposals

to allow the members to cast an informed vote.

On June 18, 1973, following two days of hearings, the

District Court impounded the ballots in the affiliation

referendum because the Executive Board had seriously

A6

impaired the secrecy and integrity of the balloting by

opening some ballots to gauge the trend of the election.

The District Court did not enjoin any future referendum

“feeling it sufficient to leave the officers free to conduct

another vote in accordance with Local 47’s constitution

and ‘... with adequate information as to the terms of any

affiliation with the ILA.’ ””’

Appellants held another referendum immediately,

mailing out new ballots and cover letters on June 21, 1974.

Appellees filed a motion for a temporary restraining order

which the District Court declined to issue. Rather, the

District Court set a July 1, 1974, hearing on Appellees

original motion for a preliminary injunction. Following

the July 1, 1974, hearing the District Court issued the

Memorandum Opinion, in which it concluded that 29

U.S.C. § 411(a) (1)° guaranteed union members the right

to a meaningful vote in union elections. The District

Court further concluded that 29 U.S.C. § 501(a) created

a duty on the part of the officers of a union to provide the

membership with sufficient information on the issues to

allow members to cast an informed vote. The trial court

noted that union officers may convey their opinions on the

issues to the membership but are also duty-bound to see

that points of view at variance with their own, if such exist,

are disseminated. The District Court concluded that the

membership had a right, by virtue of Sections 411(a) (1)

and 501(a), “to know and vote on all affiliation proposals,

to know all the terms thereof, as well as the governing law

‘Norman F. Blanchard, et al. v. Rolla, et al., No. C 74-288

(N. D. Ohio, filed July 5, 1974), Joint Appendix, Vol. I, at 201.

*(a) (1) Equal rights.—Every member of a labor organiza-

tion shall have equal rights and privileges within such organiza-

tion to nominate candidates, to vote in elections or referendums

of the labor organization, to attend membership meetings, and to

participate in the deliberations and voting upon the business of

such meetings, subject to reasonable rules and regulations in such

organization’s constitution and bylaws.

AZT

of any organization with which they were to affiliate, and

to know the views of other members on the proposals.’”

The District Court enjoined the ongoing referendum and

required the officers of Local 47 to submit for approval a

plan for conducting future referenda which would be con-

sistent with the conclusions expressed in the Court’s

opinion.

Appellants filed a Motion to Modify the July 5, 1974,

order. On November 1, 1974, the District Court filed a

Memorandum and Order denying Appellants’ motion

stating:

Defendants’ motion does not appear well taken

however. It should be noted that this Court’s Order

does not require the union executive board to submit

all affiliation proposals to the membership for a ref-

erendum. What it does require is full disclosure of

the terms of all proposals before a vote on any one

will be approved by this Court.’

On December 3, 1974, MEBA filed a motion seeking

to intervene, and a motion seeking to have its affiliation

proposal placed on the referendum ballot. On January

20, 1975, the District Court filed another Memorandum

and Order. The Court denied MEBA’s motion to intervene

but granted the motion to appear on the ballot, stating

Placing MEBA on the affiliation referendum

ballot is quite another matter however. Although it

is true that § 3 of Article XXIII of the Constitution

of Local 47 does not require that all affiliation pro-

posals be voted upon on the same ballot, it somehow

seems unnecessarily grudging for the union officers

to conduct a referendum on only the proposal which

they personally support. This Court has previously

indicated that it would not hesitate to enjoin the

defendants from using the union constitution to avoid

* District Court Opinion, Joint Appendix, Vol. I, at 209.

* Joint Appendix, Vol. I., at 215.

A8

a referendum on an affiliation proposal. Such a re-

fusal by union officers, who are, after all, fiduciaries,

runs afoul of the policies which underlie §§ 411 and

501, because seriatim balloting in this case may result

in unfair advantage for the proposal favored by the

union leadership. Thus, the Court will enjoin the use

of the constitutional provision and order the MEBA

proposal placed on the ballot along with the ILA

proposal.”

Appellants bring this appeal claiming that, consistent

with their duty as defined in Local 47’s Constitution,’ they

rejected MEBA’s affiliation proposal and that the District

Court erred in concluding that Sections 411(a)(1) and

501(a) of the LMRDA require presentation of a rejected

offer in a referendum. Appellants further contend that the

District Court properly denied MEBA’s motion to inter-

vene.

We turn first to consideration of the District Court’s

denial of MEBA’s motion to intervene. Rule 24(a) (2),

Fed. R. Civ. P., establishes a threefold test for nonstatutory

intervention of right:

(2) when the applicant claims an interest relat-

ing to the property or transaction which is the subject

of the action and he is so situated that the disposition

of the action may as a practical matter impair or im-

pede his ability to protect that interest, unless the ap-

plicant’s interest is adequately represented by exist-

ing parties.

We note that from its inception Appellants’ case has

been handled by Gerald B. Lackey, a member of the

Toledo, Ohio, law firm which regularly represents MEBA.

Appellees are Local 47 members who are supporters of

MEBA in its efforts to secure Local 47’s affiliation. A rep-

> Joint Appendix, Vol. I., at 229.

® Constitution of Great Lakes and Rivers District, Masters,

Mates and Pilots—Local 47, art. XVII, § 3 and art. XXIII, § 3.

AY

resentative of MEBA suggested to Appellee Blanchard

that he contact Lackey and another MEBA representative

was present when Blanchard first met with Lackey. It was

at this meeting that plans to take legal action against Local

47 and its officers were formulated. It appears that the

interests of MEBA and of Appellees in this action are vir-

tually identical. As we noted in Afro American Patrol-

men’s League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974),

“fajn applicant for intervention has the burden of show-

ing that representation by existing parties is inadequate.”

MEBA failed to carry this burden and the District Court

did not err in denying MEBA’s motion to intervene.

We turn to consideration of the remaining issue raised

by Appellants—whether the District Court erred in re-

quiring Appellants to include MEBA’s affiliation proposal

on the referendum ballot. Appellants point te Local 47’s

constitution and by-laws as not requiring inclusion of the

MEBA proposal on the referendum ballot because they had

in good faith considered the proposal and rejected it.

Appellees contend that the District Court correctly

read LMRDA Sections 411(a) (1) and 501(a) to create a

duty on the part of the individual Appellants to provide the

membership with sufficient information to evaluate all af-

filiation proposals.

The Supreme Court in Musicians Federation v. Witt-

stein, 379 U.S. 171, 182-183 (1964), stated:

“The pervading premise of both these titles [Title I

and Title IV, Labor-Management Reporting and Dis-

closure Act of 1959} is that there should be full and

active participation by the rank and file in the affairs

of the union.”

This Court, after reviewing the legislative history and

judicial consideration of the LMRDA, concluded in Sertic

v. District Council of Carpenters, 423 F.2d 515, 521 (6th

Al0

Cir. 1970), that “[u]nion members are entitled under the

Act to the right of a meaningful vote... .”

However, this Court is not unfettered in its determina-

tion of what constitutes “full and active participation” or

a “meaningful vote.”” As the Supreme Court noted in Cal-

hoon v. Harvey, 379 U.S. 134, 138-139 (1964), issued the

same day as Musicians Federation, supra:

“Congress carefully prescribed that even this right

against discrimination is ‘subject to reasonable rules

and regulations’ by the union.”

The Court also states

“Plainly, [$101(a)(1)] is no more than a command

that members and classes of members shall not be

discriminated against in their right to nominate and

vote.” 379 U.S. at 139.

The Second Circuit in Sheldon v. O’Callighan {sic},

497 F.2d 1276, 1281 (2nd Cir. 1974), subscribed to the rea-

soning in Allen v. International Alliance of Theatrical Em-

ployees, 338 F.2d 309, 317 (5th Cir. 1964), “{t}his Court

recognizes the need to exercise what Judge Wisdom re-

ferred to as a ‘sound reluctance . . . to interfere in internal

union affairs.’”’ The Sheldon Court added

“The duly elected officers of a union have a right and

a responsibility to lead, and to give the members the

benefit of their advice on questions that arise.” 497

F.2d at 1282.

The District Court Order in the instant case concluded

with the following paragraph:

To sum up: The motion of MEBA to intervene

as a party plaintiff is denied; the affiliation proposal

of MEBA shall appear on the ballot along with that of

the ILA; the referendum shall be held at such time as

defendants propose through the auspices of the Amer-

ican Arbitration Association; defendants shall permit

at least thirty (30) days for dissemination of views

All

by the membership following the mailing of the bal-

lots; and any member shall be permitted to mail his

views at any time to the membership through the

AAA, as often as he wishes so long as he bears the

expense thereof. IT IS SO ORDERED.’

We conclude that the District Court’s actions in re-

solving this matter, with the exception of its direction to

include the MEBA proposal on the referendum ballot, were

proper under Section 411(a) (1).° The District Court un-

necessarily intruded into the internal operations of Local

47 by directing that the MEBA proposal be added to the

ballot. We do not read § 411(a) (1) to disallow seriatim

voting on affiliation proposals so long as sufficient informa-

tion about all proposals received by the Executive Board

is disseminated to the membership to allow a reasoned and

informed vote on the proposal which appears on the ballot.

Appellees and their fellow members of Local 47 will be

able to exercise their statutorily guaranteed right to an

informed vote assuming the above dissemination of infor-

mation. The membership of Local 47 may approve the

ILA proposal or may reject it and await the opportunity

to consider other such proposals.

That portion of the District Court’s Judgment which

directs that MEBA’s affiliation proposal appear on the

referendum ballot is reversed, the remaining portions of

the Judgment are affirmed.

* Joint Appendix, Vol. I, at 230.

* The portions of the Judgment of the District Court which

we affirm are properly grounded upon Section 411(a) (1). The

actions directed by the portion of the Judgment which we reverse

would be improper under either Section 411(a) (1) or Section

501(a). Thus we need not reach the question of the applicability

of the Section 501(a) fiduciary duty to the instant action.

Al2

JUDGMENT OF THE COURT OF APPEALS

(Filed April 2, 1976)

Nos. 75-1606, 75-1607

UNITED STATES COURT OF APPEALS

For THE SrxtH CIRCUIT

NORMAN F. BLANCHARD, et al.,

Plaintiff-Appellees,

Vs.

ROLLA R. JOHNSON, et al.,

Defendants-Appellants.

Judgment of the District Court regarding the portion

of the Judgment which directs that MEBA’s affiliation

proposal appeal on the referendum ballot is reversed and

the remaining portions of the Judgment are affirmed.

Each party to pay its own costs on appeal.