Petition — Gabauer v. Woodcock

Supreme Court brief1979

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78-1873

In the Supreme Court of the Un

@ Court, U. &

OCTOBER TERM, 1978 FILED

NO. «seer JUN 18 {979

ERNEST GABAUER, JOE De LOS SAN‘OS, JR.,

COLEMAN G. LEWIS, JR., C. L. GR AEEPRODAK, JR., CLERK

ELBERT HILL and CLAUDE J. HUSKEY,

Petitioners,

vs.

LEONARD WOODCOCK, EMIL MAZEY, KENNETH

WORLEY, C. E. MATTIX, EDWARD LAVIN, JOHN T.

WEBSTER, ROY HARTZELL and DONALD YOUNG,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

DonaALp W. JONES

PREWITT, JONES & KARCHMER

110 Landmark Building

P. O. Box 1185 S.S.S.

Springfield, Missouri 65806

THOMAS M. HANNA

McMAHoN, BERGER, BRECKENRIDGE & HANNA

7701 Forsyth Blvd.

Clayton, Missouri 63105

RAYMOND J. LAJEUNESSE

Rex REED

8316 Arlington Blvd.—Suite 600

Fairfax, Virginia 22030

JOHN L. KILCULLEN

KILCULLEN, SMITH & HEENAN

1800 M Street, N.W.

Suite 600 i

Washington, D. C. 20036

Attorneys for Petitioners

June, 1979

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

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Reasons for Granting the Writ .......................-seccseeeeeeees

I. Review should be granted to decide important

II.

questions of federal law under LMRDA Sec-

tion 501. The decision below threatens to nul-

lify the derivative action by the union mem-

bers to require their union officers to make an

accounting as to funds claimed to have been

expended in violation of the fiduciary duties

of the officers to hold union funds and prop-

erties “solely for the benefit of the organiza-

tion and its members.” ................:..0.0--+---- tr ae

This case calls for the Supreme Court to ex-

ercise its power of supervision. The Court of

Appeals has permitted the District Court to

dismiss a complaint without assuming the

facts alleged by Plaintiffs are true. Even if

the dismissal be viewed as a summary judg-

ment, the Court of Appeals has assumed as

true factual assertions made by Defendants

(many of which were not sworn to be defen-

dants) and has assumed that facts asserted

by Plaintiffs’ affidavit are not true, and sum-

mary judgment should not have been per-

mitted to be entered against Plaintiffs without

permitting them to have discovery first as

provided under F.R.C.P. 56(f). The decision

13

Il

below conflicts with rulings of the Supreme

Court and of other Courts of Appeal ................ 20

III. The remand of Count One for a hearing as to

whether Plaintiffs have “just cause” to in-

spect records as requested under LMRDA

Section 201 unnecessarily delays and frustrates

Plaintiffs’ rights. Other Circuits have ruled

that the union officers waive their right to

contest Plaintiffs’ showing of just cause by

failing to raise the point as in this case, and

the decision below is in conflict with those

PIE ios cscs wh ennhinounsetectabnaunsntin whetenecnstesthimmecinaiien 25

COTCRAIINIIE 5a senectinwsnrecenceaseoeenecemessosencoavecissmnestnecepsoononeneeensis 27

Appendix A—Opinion of the United States Court of

Appeals for the Eighth Circuit ..2...........-..-.-.-.-.---.---- -29

Appendix B—Order of the United States District Court 59

Appendenx C—Judgment of the United States Court of

Appeals for the Eighth Circuit -...................--...1ese--00- 68

Appendix D—Order of the United States Court of

Appeals for the Eighth Circuit Denying Petition for

PROMO MEIN sci n anna sas nsesincnnscensneseenenesenncnsvenssssnsnneeenssoncnsens 69

Appendix E—29 U.S.C. Sections 461, 463, 464, 501, 523

Ee re ie es MO hice akc ereccstneoninheennteanscitinatiiens 70

Citations

CASES

Abood v. Detroit Board of Education, 431 U.S. 209

411-412 (2d Cir. 1955), cert. denied 351 U.S. 983, 76

S.Ct. 1050, 100 L.Ed. 1487 (1956) ............-.....eseceseeeees 26

Ill

Antal v. District 5, United Mine Workers of America,

ee Re Ge Mail WIPED cite iectisteicesicstiectanienends 25

California Transport v. Trucking Unlimited, 402 U.S.

SO POE) ecient bcipidis aie Stihl ba annie daes siesta 21

Colby v. Klune, 178 F.2d 872 (2d Cir. 1949) 002... 25

Conley v. Gibson, 335 U.S. 41 (1957) 2 21

Crt ¥. Aan, 48 US. 6 (06) ........ 19, 20

Cross v. United States, 336 F.2d 431, 434 (2d Cir. 1964) 26

Fogelson v. American Woolen Co., 170 F.2d 660 (2d

Sek aE EAR te Tay sig Se ere ee 25

Fruit and Vegetable Packers, etc., Local 760 v. Morley,

EE RE UU OE Mg cc secs cceteeniabasivomens 26

Gardner v. Toilet Goods Assn., 387 U.S. 167 (1967) .... 21

Gilbert v. Hoisting & Portable Engineers, 384 P.2d 136

(Ore. En Banc 1963), cert. denied 376 U.S. 963 (1964) 14

Highway Truck Drivers and Helpers Local 107 v.

Cohen, 182 F.Supp. 608 (E.D.Pa. 1960), aff'd 284 F.2d

162 (3d Cir. 1960), cert. denied 365 U.S. 833 (1961)

snnesilasdeedicopalds tects icratonh otecatame sedi bismdabesidatndinnangiarsintaconninniat 14, 18

Johnson v. Nelson, 325 F.2d 646 (8th Cir. 1963) ............ 14

Libutti v. DiBrizzi, 337 F.2d 216 (2d Cir. 1954) ........... 15

Local 1419, I.L.A. v. Smith, 501 F.2d 791 (5th Cir. 1962)

pshiiiehehlbeesiciiinitidanastibic ia bint atisiladinppilintadliiesthanithans-cbsamincacniateise 25, 27

McNamara v. Johnston, 522 F.2d 1157 (7th Cir. 1975),

cert. denied 425 U.S. 911 (1976) ....... 16, 19, 21

Machinists v..Street, 367 U.S. 640 (1961) 0000. 17, 18

Miller v. American Telephone and Telegraph Co., 507

A a Cre a OD harness hctetiitshiteintoennne 21

Mooney v. Bartenders’ Local 284, 48 Cal.2d 841, 313 P.2d

5 REE Me SE OER 16

Poller v. C.B.S., 368 U.S. 464 (1962) 2. 22, 26

Posner v. Utility Workers Union, 47 Cal.App.3d 970,

he Ek} pec emean evermore . 14

IV

Railway Clerks v. Allen, 373 U.S. 113 (1963) ................ 17, 18

Rekant v. Schochtay-Gasos Union Local 446, 194

F.Supp. 187 (E.D.Pa. 1961), 205 F.Supp. 284 (E.D.Pa.

| -_ | DST es Pence nee erin Se SIR Ps 14

Robinson v. Nick, 235 Mo.App. 461, 16 S.W.2d 374

(SL Die Ame, WOGD) vscriecimiccntitinctiongiliciieninn 16

Schoenbaum v. Firstbrook, 405 F.2d 215 (2d Cir. 1965),

cert. denied 395 U.S. 906 —._..........................- 22, 24

Subin v. Goldsmith, 224 F.2d 753 (2d Cir.), cert. denied

350 U.S. 883, 76 S.Ct. 136, 100 L.Ed. 779 (1955) ........ 24, 26

Thomas v. Penn Supply & Metal Corp., 35 FRD 17

(REPe. 19GG) .ccciscnitgumeiciinadiaetbaiabna 14

Umdenstock v. American Mortgage & Investment Co.,

495 F.2d 589 (10th Cir. 1974) ............................... 24

Union Electric Co. v. Boehm, 92 F.Supp. 177 (E.D.Mo.

1950), appeal dismissed 186 F.2d 715 (8th Cir. 1951) 18

United States v. Boyle, 482 F.2d 755 (D.C. Cir. 1973),

curt. Gembedl GB6 UTR, BN ccisetiecticcitesiticheledieiicn 17

United States v. CIO, 335 US. 106 —...........-.......0...-.-.-..-.. 19

STATUTES

BB UBS.. TABRCR) sncrecncininitccciiecniieeinne ac 2

BB WBC. TEBE Cae), BD ccnvnerennesecntetsnnnesiticiiiacnibihets 4

Federal Corrupt Practices Act (FCPA), 18 U.S.C. 610

axsinsichtiinsintnnsiahiabiesetiaiaiaaaideaameaiialaa en 2, 3, 9, 17, 18, 19, 21, 22

Federal Election Campaign Act (FECA), 2 U.S.C.

441(b), P.L. 94-283, 90 Stat. 495, 496 0. 3, 18,19

Labor Management Reporting and Disclosure Act of 1959

(LMRDA):

BD UBL. BB .wcnsissishesnnsnseenendinmnanaaamnie 5

See. 301, 3D UB. Gee on ceciettuniens 3, 4, 20, 25, 27

Sec. 301-304, 29 U.S.C. 461-464 3, 4,5

Vv

UTED deserts <ialadsstbiprcecarucbensaansadcteieke. sai 5

Soe en, BP I, BON anna, co cteccnss 3, 4, 5, 6, 7, 10, 13,

14, 15, 17, 19, 22, 23

I, AP Pe UO ao ceccsasccsnseoncesersenecmaiasess 3, 5, 14, 20

8 RSC ERITREEE L/S B na Ny eRe 5

RULES

Federal Rules of Civil Procedure (FRCP):

| RL a EA ES eS SSA AO LE Ce OE RD 7,21

og |. BSN Re eae aeons 3, 7, 11, 20, 22, 23, 24

OTHER

Restatement, Trusts 2d ................... 14, 15, 16, 18

| EEN RS OR ee eR 14, 15, 16, 18

1CJ.S., Accounting .......00.000000..... odin bacpetasnepinieadh staeicla.) 15, 16

i MU I i See SP ee 15

In the Supreme Court of the United States

OCTOBER TERM, 1978

ERNEST GABAUER, JOE De LOS SANTOS, JR.,

* COLEMAN G. LEWIS, JR., C. L. GREENFIELD,

ELBERT HILL and CLAUDE J. HUSKEY,

Petitioners,

vs.

LEONARD WOODCOCK, EMIL MAZEY, KENNETH

WORLEY, C. E. MATTIX, EDWARD LAVIN, JOHN T.

WEBSTER, ROY HARTZELL and DONALD YOUNG,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Ernest Gabauer, Joe De Los Santos, Jr., Coleman G.

Lewis, Jr., C. L. Greenfield, Elbert Hill and Claude J.

Huskey (hereafter Petitioners) pray that a Writ of Cer-

tiorari issue to review a judgment of the United States

Court of Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals (App. A, infra,

pp. 29-58) is reported at 594 F.2d 662, 100 LRRM 2808.

The opinion of the District Court (App. B, infra, pp. 59-67),

is reported in part at 425 F.Supp. 1,* 94 LRRM 2497.

*The officially reported decision of the District Court does

not include the order entered January 19, 1977 (App. B, infra,

p. 67) dismissing both Counts of the Complaint.

JURISDICTION

The judgment of the Court of Appeals (App. C, infra,

p. 68), was entered on March 6, 1979. Rehearing was

denied on March 27, 1979. (App. D, infra, p. 69). The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Where union members allege in their complaint

under 29 U.S.C. 501(b) that Defendant union officers have

wrongfully spent union dues monies for political and ideo-

logical purposes contrary to the best interests of the union

membership, for purposes which are not authorized under

the union’s constitution and bylaws and for purposes

unrelated to the union’s collective bargaining functions,

and that Defendant officers have used union dues monies

to finance federal election campaigns in violation of the

Federal Corrupt Practices Act, 18 U.S.C. 610, was it proper

for the Court of Appeals to affirm dismissal of such com-

plaint for failure to state a claim upon which relief may

be granted?

2. Was it proper for the Court of Appeals to re-

solve factual disputes adversely to Plaintiffs’ claims [as to

whether particular expenditures of union dues monies were

authorized and as to whether union funds contributed to

federal election candidates were commingled with union

dues monies in violation of 18 U.S.C. 610 and as to Plain-

tiffs’ claims that Defendants knowingly breached their

duties of trust by secretly diverting union dues monies

to purposes and outside groups without adequate reports

or disclosures to the membership and contrary to the best

interests of the union members] without permitting Plain-

3

tiff union members to have any hearing or discovery,

where Plaintiffs had filed affidavits and discovery requests

under F.R.C.P. 56(f) stating that discovery was necessary?

3. In reversing the District Court’s dismissal of the

action under 29 U.S.C. 431(c), 461(b) [for an order to

allow Plaintiff union members to inspect union records],

should the Court have granted Plaintiffs’ summary judg-

ment where it is undisputed that Defendant union officers

had denied the requested inspection before the action was

commenced for reasons which are admittedly unlawful,

and where Plaintiff union members properly asserted in

their request that it was made for “just cause” and this

is not genuinely disputed by the Defendants?

STATUTES INVOLVED

This case involves interpretation of Sections 201, 301-

304, 501 and 603(a) of the Labor Management Report-

ing and Disclosure Act of 1959, 29 U.S.C. 431, 461-464,

501 and 523 (hereinafter LMRDA), and of the Federal

Corrupt Practices Act, 18 U.S.C. 610 which was in effect

when this action was instituted in District Court on March

21, 1972.1 Pertinent portions of these statutes are re-

printed in App. E, infra, pp. 70-81. See also provisions

of 29 U.S.C. 464 quoted at note 4, infra, and Civil Rule

56 (f) , quoted at note 5, infra.

1, Although 18 U.S.C. 610 was repealed by Act May 11, 1976,

P.L. 94-283, 90 Stat. 496, known as the Federal Election Cam-

paign Act Amendments of 1976, Title I, Section 114 of that Act,

90 Stat. 495, provided: “Except as otherwise provided by this

Act, the repeal by this Act of any section or penalty shall not

have the effect of releasing or extinguishing any penalty, for-

feiture, or liability incurred under such section or penalty, and

such section or penalty shall be treated as remaining in force

for the purpose of sustaining any proper action or prosecution

for the enforcement of any penalty, forfeiture, or liability.”

STATEMENT OF THE CASE

Nature of Action: Petitioners (plaintiffs below) are

six members of UAW International Union?’ and its Local

No. 25, in St. Louis, Missouri. They filed suit on March

21, 1972 in the Eastern District of Missouri (A. 13-25)

against officers and representatives of the UAW Interna-

tional Union and Local 25*, invoking jurisdiction under

28 U.S.C. 1331 (a) and 1337.

Under Count One, Plaintiffs sought court orders allow-

ing them to inspect and copy union financial and trustee-

ship records under Sections 201(c) and 301(a) and (b)

of LMRDA [29 U.S.C. 481(c), 461(a) and (b)]. Under

Count Two, Plaintiffs (having obtained leave of court to

do so, A. 6-12) brought a derivative action under Section

501(b) of LMRDA. [29 U.S.C. 501(b)], seeking to compel

the Defendant union officers to make an accounting of

union property and funds which Plaintiffs claimed had

been misappropriated or diverted secretly and without au-

thority to political and revolutionary groups and causes

opposed to the best interests of the union and its member-

ship in breach of fiduciary duties owed by the Defendant

officers under Section 501(a) of LMRDA [29 U.S.C.

2. The “UAW International Union” refers to International

Union, United Automobile, Aerospace and Agricultural Implement

Workers of America (hereafter “UAW’”’).

3. Defendants include the then President (Leonard Wood-

cock) and Secretary-Treasurer (Emil Mazey) of UAW; UAW’s

Region 5 Director (Kenneth Worley), who served as “Admin-

istrator” (trustee) over the Chevrolet Unit of Local 25 and

Chairman of the UAW Region 5 Community Action Program Coun-

cil; an assistant to Worley in each of his capacities (C. E. Mattix) ;

Local 25 President (Edward Lavin); Local 25 Financial Secretary

(Roy Hartzell) ; Local 25 Recording Secretary (John T. Webster) ;

and the Financial Secretary of UAW Region 5 CAP Council and

Greater St. Louis UAW CAP Council (Donald Young). (A. 13-14).

PERRET

5

501(a)] and under the common law rights preserved to

Plaintiffs under 29 U.S.C. 413, 483, 523 and 524.4

Decisions Below: The District Court dismissed Count

Two for Failure to state a claim for which relief could

be granted, and dismissed Count One for improper venue

and pleading deficiency. (App. B, infra, pp. 61-67).

An en banc decision of the Eighth Circuit Court of

Appeals unanimously reversed the dismissal as to Count

One (in part) remanding Count One for further proceed-

ings to determine whether Plaintiffs had “just cause” to

inspect the union records, and affirmed dismissal of Count

Two by a four judge majority opinion (App. A, infra,

pp. 29-54) with three judges dissenting. (App. A, infra, pp.

54-58).

The four Judge majority found, contrary to Plaintiffs’

allegations in the complaint and in affidavits (A. 13-25,

153-286), that the Defendants had authority to expend

the union funds (derived from compulsory dues collected

under union shop agreements) for contributions to outside

4. Plaintiffs invoked , ndent jurisdiction of state law claims

preserved by these provisions of LMRDA. Plaintiffs also rely on

jurisdiction provided under 29 U.S.C. 461(b), 462, 463, 464(a)

and (b). (A. 39-43, 145). The last sentence of 29 U.S.C. 464(a),

relating to actions claiming unlawful imposition of trusteeships,

provides: “Any member or subordinate body of a labor organiza-

tion affected by any violation of this title (except section 301)

may bring a civil action in any district court of the United States

having jurisdiction of the labor organization for such relief (in-

cluding injunctions) as may be appropriate.” 29 U.S.C. 464(b)

provides: “For the purpose of actions under this section, district

courts of the United States shall be deemed to have jurisdiction of

a labor organization (1) in the district in which the principal

office of such labor organization is located, or (2) in any district

in which its duly authorized officers or agents are engaged in

conducting the affairs of the trusteeship.” A trusteeship had

been imposes by UAW officers over the Chevrolet Unit of Local

25 on June 12, 1970, which Plaintiffs claimed amounted to a

wholesale misappropriation of the assets and affairs of the local

unit in violation of 29 U.S.C. 501(a). (A. 22-23, 30-31, 39-44,

143-144, 153-172).

6

groups whose purposes Plaintiffs claimed were antithetical

to the interests of the UAW members. The majority opin-

ion found that even Plaintiffs’ claims that Defendants had

used union funds in violation of Federal Corrupt Practices

Act, 18 U.S.C. 610, did not state a claim because the Defen-

dants “relied on their apparent authority” to so use union

funds. (App. A, infra, p. 54). At note 7 of the majority’s

opinion, it was conceded that a Section 501 claim could

be stated for use of union funds in violation of the Federal

Election laws, but that such claim could not be made

where the Defendants claimed to have had “apparent au-

thority” to so spend the union funds. (App. A, infra, p.

54).

The dissenting opinion strongly argues that Plaintiffs

did state a claim for which relief may be granted under

LMRDA Section 501(b). It argues that the majority erred

in conferring unlimited discretion upon UAW International

officers in their expenditure of huge amounts of money

collected annually from compulsory dues (about $148 mil-

lion) and that the UAW constitution should not be con-

strued as granting such unlimited discretion. The dissent

‘pointed to Article 2 of the UAW constitution limiting the

assistance it should give to organizations to those “having

purposes and objectives similar or related” to those of

UAW; Article 7(2) which authorizes expenditures of UAW

funds to achieve purposes and objections “not inconsistent”

with purposes of the UAW, and which the UAW Executive

Board believes “will further the general interest and wel-

fare of the membership”; and to Article 23(1) which indi-

cates that the UAW’s Community Action Program (CAP)

is “to improve the economic and social conditions of UAW

members and their families and to promote the general

welfare and democratic way of life for all people.” (Empha-

sas by dissenting opinion, App. A, infra, pp. 55-56).

7

The dissenting opinion argues that the above quoted

language shows that the UAW officers do not have unlim-

ited discretion as to how to spend the union’s funds, and

that Plaintiffs’ allegations that Defendants had contributed

union assets “to various organizations and groups espousing

and promoting ideological doctrines and causes totally un-

related to, and in many instances antithetical to, the inter-

ests and welfare of the union and its members” (including

thirteen groups listed in the complaint and the majority

opinion) do state a claim. The dissenting opinion found

that the dismissal was improper under F.R.C.P. 12(b) be-

cause the majority improperly resolved factual disputes

contrary to Plaintiffs’ allegations (App. A, infra, p. 55,

note 1) and the dismissal was not proper under F.R.C.P.

56, because Plaintiffs were denied discovery and opportu-

nity to prove their claim, and Plaintiffs should have had

an opportunity to find out through discovery the goals

and methods espoused by the recipients of the challenged

UAW contributions. (App. A, infra, p. 57).

The dissenting opinion argues that if the ends and

means adopted by the recipient organizations were, as

alleged, antithetical to the interests and welfare of the

UAW membership and inconsistent with the objectives

of the UAW, Plaintiffs have a cause of action under

LMRDA Section 501 for misuse of union funds by UAW

officers, and it was not proper for the Court to ignore

the allegations of Plaintiffs that the questioned expendi-

tures “were in violation of the Union’s constitution.” (App.

A, infra, p. 57).

Facts - Count Two: UAW Local 25 and UAW Inter-

national Union have had collective bargaining agreements

covering Plaintiffs and their fellow workers at the General

Motors plant in St. Louis, Missouri since before 1961. Such

agreements include union‘shop clauses which required each

8

employee (including Plaintiffs) to pay dues and fees to

Local 25 as a condition of employment which average $10

per month per employee, and which total more than One

Million Dollars ($1,000,000) annually. (A. 14).

Substantial sums of Local 25 compulsory dues are

paid over to UAW International Union and other organiza-

tions controlled by Defendants. Since May 1969, Local

25 has paid three per cent’ (3%) of each member’s dues

to the Community Action Program (CAP) Funds, including

the Greater St. Louis CAP Fund, the Missouri CAP Fund,

and the UAW COPE Fund. Local 25 pays to such CAP

funds in excess of $30,000 per year from compulsory dues

income. (A. 20, 50-55).

The UAW International financial reports filed annually

with the Secretary of Labor disclosed contributions or dona-

tions of Million of Dollars to various political and other out-

side groups for years 1961 through 1967. Those reports (A.

222-272) show that donations of union funds went to

groups, purposes and causes totally unrelated to or in

many cases opposed to the interests of the Local 25 mem-

bers and their families. (A. 135-136). The UAW’s reports

for 1968 through 1970 do not list who the recipients of

such donations were, but for each of those years show

contributions ($1,753,718; $2,074,268; and $527,601) to out-

side groups which were not identified in any way. These

contributions were not for the benefit of UAW members

or their families, but were to support causes and purposes

opposed to the best interests of the UAW and its member-

ship. (A. 136).

The substantial reduction of reported outside contribu-

tions for 1970 results from a concealment of approximately

$1,000,000 to $2,000,000 of contributions through the crea-

tion of the CAP Council which has been used to divert

compulsory dues monies to various outside groups and

9

causes, the specific nature and amounts of which have

not been reported to the UAW membership and have not

been included in the UAW’s financial reports filed with

the Secretary of Labor. (A. 136, 273-275). The generalized

type of disclosures made in the 1968 and subsequent finan-

cial reports results from a deliberate concealment by Defen-

dant union officers from the Local 25 membership of the

uses and purposes to which their dues monies have been

put through the outside donations, but which uses are

contrary to the best interests and desires of UAW members

generally and have not been authorized by them. (A. 136).

Plaintiffs have discovered that some of the groups

which have been recipients of UAW Local 25 compulsory

dues monies include many groups who are controversial,

or who have engaged in revolutionary or disruptive tactics

and programs which are strongly opposed by the UAW

memberspip and are contrary to the best interests of the

UAW members. Plaintiffs have discovered their union

dues monies have been wrongfully given to outside groups

such as National Students Association (NSA), Students for

a Democratic Society (SDS), Students’ Non-Violent Coor-

dinating Committee (SNCC), Dubois Memorial Committee

and numerous other such groups. (A. 21-22, App. A, infra,

pp. 37-38).

Plaintiffs believe their compulsory dues n »nies have

been given as donations to candidates for federal elective

offices in violation of 18 U.S.C. 610. Various schemes and

devices have been used by Defendants to conceal such un-

authorized uses of union dues monies, and such criminal

uses of dues monies, including the creation of the CAP

council and the use of -fictitious “flower funds” which are

in reality political “slush funds”. (A. 138-139).

Funds have been given by CAP to various United

States Congressmen listed in Plaintiffs’ affidavit. (A. 140-

10

142). News reports have shown that Defendant Woodcock,

now Ambassador to China, had used his union office to seek

high political offices or appointments on his personal be-

half, and he has apparently been using union funds to ad-

vance his own selfish political interests rather than for the

benefit of the Union and its members. (A. 140-141). A

clipping from the Local 25 newsletter shows a United

States Senator thanking the CAP in St. Louis for contribu-

tions to his campaign. (A. 143, 276-277).

Some $30,000 to $60,000 per year have been unlawfully

taken by Defendants from Local 25 union dues income each

year since 1961 for such unauthorized or unlawful purposes.

(A. 150-151).

Plaintiffs’ action under Count Two seeks an order that

the Defendant union officers make an accounting as to the

uses to which the union dues monies taken from Local 25

since 1961 have been made, and seeks orders that the De-

fendants be required to reimburse the Union treasury for

any expenditures which were not properly authorized, or

which were contrary to the best interests of the UAW mem-

bers or were not legitimate purposes for which compulsory

dues could be expended since they were not “solely” for

the benefit of members as required under 29 U.S.C. 501(a).

When the Defendants sought to dismiss the action and

sought summary judgment against the Complaint, Plain-

tiffs filed a detailed affidavit, setting forth allegations in-

cluding those covered above. (A. 126-152, 153-286). Plain-

tiffs opposed the Defendants’ motion for summary judg-

ment because the case was not ripe for summary judgment,

since Defendants had failed to respond to interrogatories

propounded more than a year earlier (A. 73-93), Plaintiffs

had filed a motion to compel discovery (A. 103-104) and

Plaintiffs had not been afforded any opportunity for dep-

ositions. (A. 124-126, 128-129). Plaintiffs’ affidavit in op-

11

position to summary judgment specifically stated that it

was impossible for Plaintiffs to further respond to or defend

against the Defendants’ summary judgment motion until

discovery was permitted, which discovery Plaintiffs re-

quested permission to undertake before the court ruled on

the motion, as provided in F.R.C.P. 56(f).° (A. 128-129).

Facts - Count One: Plaintiffs had sought [through let-

ters dated August 19, 1971 (A. 26-28) and November 17,

1971 (A. 34-36) ] permission to inspect certain records of the

International and Local Union officers relating to Local 25

and the trusteeship imposed by the International Union

over the Chevrolet Unit of Local 25. Although these re-

quests by Plaintiffs were made in good faith and for just

cause, Defendants refused to grant permission for inspec-

tion for two stated reasons: (1) because Plaintiff Huskey

was alleged by Defendants not to be a member in good

standing, a position later reversed by Defendants; and (2)

because the Defendants would not permit Plaintiffs to in-

spect any records with assistance of their accountants and

attorneys, as Plaintiffs had requested, a position which the

Court of Appeals found to be unlawful. (A. 15-16; App. A,

infra, p. 35).

After this action was filed by Plaintiffs, defense coun-

sel appeared in Court and admitted that all reasons ad-

vanced by Defendants for refusing the inspection had been

without merit, but seeking to interpose after the action was

filed a claim that Plaintiffs did not have “just cause”. (A.

133-134). This newly asserted claim of lack of “just cause”

; 5. Federal Rule of Civil Procedure 56(f) states: “Should

it appear from the affidavits of a party opposing the motion [for

summary judgment] that he cannot for reasons stated present

by affidavit facts essential to justify his opposition, the court

may refuse the application for judgment or may order a contin-

uance to permit affidavits to be obtained or depositions to be

taken or discovery to be had or may make such other order as

is just.” See note 17, infra.

12

is without merit according to the unrefuted affidavit of

Plaintiff Huskey because of a long series of just causes

therein listed: Plaintiffs’ belief that Defendants are hid-

ing funds not included in Local 25 reports and secretly and

unlawfully using compulsory dues funds to finance cam-

paigns for federal elections in violation of the law and

that Defendants are using a series of schemes and devices

spelled out in the affidavit seeking to divert union funds

to purposes other than legitimate collective bargaining pur-

poses, and to purposes opposed to the best interests of the

UAW and its membership (A. 131-133); Defendants have

concealed the actual use of dues and fees derived from

Local 25 members through the CAP organizations, whose

expenditures have not been included in the UAW or Local

25 financial reports filed with the Secretary of Labor as

required by law (A. 132-133); the failure of Defendants to

file reports disclosing the identities of persons or groups

receiving donations of union funds. (A. 136). The record

also discloses that the trusteeship imposed over Local 25

was for unlawful purposes and that reports were not filed

as to that trusteeship within the time required by law, and

then the reports did not comply with the law and did not

disclose any lawful purpose for the trusteeship. (A. 30-31,

33-34, 38).

Defendants have presented no affidavits which dispute

the claims of “just cause” by Plaintiffs. However, the

Court of Appeals, while reversing the dismissal of Count

One, remanded Count One for the District Court to deter-

mine whether “just cause” exists for Plaintiffs to be per-

mitted to inspect the records. (App. A, infra, pp. 33-34).

13

REASONS FOR GRANTING THE WRIT

I. Review Should Be Granted to Decide Im-

portant Questions of Federal Law Under LMRDA

Section 501. The Decision Below Threatens to Nullify

the Derivative Action by the Union Members to Re-

quire Their Union Officers to Make an Accounting As

to Funds Claimed to Have Been Expended in Violation

of the Fiduciary Duties of the Officers to Hold Union

Funds and Properties ‘‘Solely for the Benefit of the

Organization and Its Members’’.

LMRDA Section 501, 29 U.S.C. 501 (App. E, infra, pp.

70-81), outlines the nature of the fiduciary duties owed by

labor organization officers and agents, and provides civil

and criminal penalties for breaches of those duties, Sub-

section (a) recognizes that the union officers “occupy posi-

tions of trust” and must therefore hold the union’s money

and property “solely for the benefit of the organization and

its members.” They must manage, invest and spend union

funds only as authorized under the union’s constitution

and bylaws, and resolutions thereunder. But the statute

specifically provides that union officers shall not be re-

lieved of these fiduciary duties by “general exculpatory”

provisions in the union constitution or bylaws, and any

generalized provisions purporting to give blanket immunity

to officers from liability for breaches of their fiduciary ob-

ligations “shall be void as against public policy”. Subsec-

tion (b) provides for derivative actions to be brought by

the members against officers who are “alleged to have vio-

lated the duties” mentioned above to “secure an accounting

or other appropriate relief”. Subsection (c) provides for

criminal penalties for the union officer who converts union

funds not only “to his own use” but also to “the use of

another”,

14

The federal statutes which recognize the fiduciary

duties of union officers do not replace the duties previously

existing under the common law of the States, but supple-

ment the rights and remedies previously existing.’ See

LMRDA Section 603, 29 U.S.C. 528. (App. E, infra, pp.

78-79). Indeed, it has been recognized that the common

law principles concerning the fiduciary duties of trustees

must be consulted in order to fashion a body of federal

common law under LMRDA Section 501. Johnson v. Nel-

son, 325 F.2d 646, 650-651 (8th Cir. 1963); Highway Truck

Drivers and Helpers Local 107 v. Cohen, 182 F.Supp. 608,

617 (E.D. Pa. 1960), aff'd 284 F.2d 162 (38rd Cir. 1960),

cert. den. 365 U.S. 833 (1961). Those cases recognized that

LMRDA Section 501 atternpted to define the fiduciary

duties of union officers “in the broadest terms possible”.

Ibid.

The common law duties of trustees are listed and ex-

plained in Sections 169-189, RESTATEMENT oF TRuUsTS 2d,

and in Professor Scott’s Treatise using the same section

numbers. Those duties include duties of keeping and ren-

dering accurate accounts to the beneficiaries and to furnish

complete information as to the income and expenditures of

the trust property. RESTATEMENT, Trusts 2d, §$172-173.

If the trustee is requested by the beneficiary for informa-

tion concerning the use of trust funds and the trustee re-

fuses to give that information, the trustee is guilty of a

breach of trust for which the beneficiary is entitled to

equitable relief in an actior for an accounting. RESTATE-

MENT, TrRuSTS 2d, §$197, 199-201; Scotr on Trusts, §§197,

7. Rekant v. Schochtay-Gasos Union Local 446, 194 F.Supp.

187 (E.D. Pa. 1961) (denying motion to dismiss), 205 F.Supp.

284 (E.D. Pa. 1962) (opinion after trial) (E.D. Pa. 1962); Thomas

v. Penn Supply & Metal Corp., 35 F.R.D. 17 (E.D. Pa. 1964);

Posner v. Utility Workers Union, 47 Cal.App.3rd 970, 121 Cal.

Rptr. 423 (1975); Gilbert v. Hoisting & Portable Engineers, 384

P.2d 136, 138-159 (Ore. En Banc 1963), cert. den. 376 U.S. 963

(1964).

15

199-201; 1 C.J.S., Accounting, §$14-47, particularly §21; 90

C.J.S., Trusts, §391, p. 709.

A breach of trust occurs if the fiduciary makes ex-

penditures which are unauthorized or outside his powers.

$201, Scorr and REsTaTEMEN't, Trusts 2d. The scope of a

trustee’s powers is considered at $$185-196 of Scorr and

RESTATEMENT, Trusts 2d. At $190.10, Scorr points out that

ordinarily the trustee is without power to make a gift of

trust property to persons other than the trust beneficiaries.

Such power can never be presumed without proof that the

beneficiary has consented to such outside gifts after full

knowledge of all relevant facts and without concealment,

deception or other misconduct by the trustee. §216, Scorr

and RESTATEMENT, Trusts 2d. If the trustee acts dishon-

estly or with improper motive, his action is outside his

power, Id., $187. This is true no matter how broadly the

trust instrument describes the trustee’s power or discretion,

because the trustee is obviously not empowered to act in

bad faith or with improper motive. Ibid.

The four judge majority below (with three judges

filing a strong dissent) approved the District Court’s dis-

missal of the derivative action brought under Count Two

of the complaint.

Under Part A, the majority opinion concludes, without

citation of authority and without noting the common law

principles of trust law discussed above, and without noting

that Plaintiffs invoked the court’s pendent jurisdiction of

state law claims* (see note 4, supra), that the Plaintiffs

could not use LMRDA Section 501 as an independent dis-

covery tool, and that LMRDA Section 201 provides the only

discovery too! available to Plaintiffs. (App. A, infra, p.

41). That narrow view of Section 501 also overlooks the

8. Libutti v. DiBrizzi, 337 F.2d 216 (2d Cir, 1954).

16

rights of Plaintiffs under the common law. See Mooney

v. Bartenders’ Local 284, 48 Cal.2d 841, 313 P.2d 857 (En

Banc 1957); Robinson v. Nick, 235 Mo.App. 461, 136 S.W.2d

374, 386-387 (St.L.Mo.App. 1940); 1 C.J.S., Accounting, §21,

in addition to the above citations to RESTATMENT, TRUSTS

and Scott oN TRUSTS.

Under Part B, the majority stated the dismissal of

Count Two was justified by McNamara v. Johnston, 522

F.2d 1157 (7th Cir. 1975), cert. den. 425 U.S. 911 (1976), a

case wherein UAW members in Chicago had similarly

sought an accounting as to what they claimed to have been

unauthorized expenditures by officers of the UAW of

union dues monies of the same type which the present

Plaintiffs claim to have been unauthorized. The majority

then quotes from UAW Constitution Art. 2, Sections 4-5,

Art. 23, Section 1, and mentions Art. 7, Section 2, Art. 23,

Section 8 (App. A, infra, pp. 42-43) and finds that those

provisions authorized the defendant officers to have broad

discretion to contribute union funds to outsiders including

political candidates and groups of the type alleged in the

complaint. The majority found the intended discretion to

have been unlimited. (“The union membership chose not

to specifically restrict the discretion of union officers.”,

App. A, p. 44). The dissenting opinion, however, finds

that the expenditures challenged by Plaintiffs are not im-

mune from scrutiny in this action and strongly argues that

Plaintiffs should be able to question the motives and pur-

poses of the Defendants and the outsiders to whom union

funds have been contributed, to determine whether the

funds have been used as authorized in the constitution or

whether, as alleged by Plaintiffs, union funds have been

used without proper authority for purposes which are ad-

verse to the best interests of the Plaintiffs and their fellow

UAW members. (App. A, infra, pp. 54-58).

17

The majority overlooked the significance of this

Court’s earlier decisions in Sireet,® Allen'® and Abood,”

where in each case, this Court has ruled the statute in-

volved was constitutional, to the extent that it allowed

compelling employees to pay union dues 2nd fees as a con-

dition of employment, only because those statutes them-

selves forbade the use of such compulsory dues for any

purposes other than collective bargaining purposes for the

benefit of the employees from whom the dues and fees are

exacted. As stated in Abood, 431 U.S. at p. 220, referring

to the holding in Street: ‘The Court ruled, therefore, that

the use of compulsory dues for political purposes violated

the Act itself.”

The majority erred in assuming that Defendants had

unlimited discretion to violate the federal labor statutes

and to spend compulsory dues for political and’ other non-

bargaining purposes and to use compulsory dues even for

financing campaigns for federal elective office in violation

of 18 U.S.C. 610. As ruled in United States v. Boyle, 482

F.2d 755 (D.C. Cir. 1972), cert. den. 414 U.S. 1076, where

defendant was convicted for misappropriating union funds

to the use of another in violation of LMRDA Section

501(c) because of a contribution to a candidate for federal

office in violation of 18 U.S.C. 610, the defendant cannot

claim authorization to do what is unlawful under federal

statutes.'*

9. Machinists v. Street, 367 U.S. 740 (1961).

10. Railway Clerks v. Allen, 373 U.S. 113 (1963).

( 11. Abood v. Detroit Board of Education, 431 U.S. 209

1977).

12. “Neither authorization by any union officer or body,

nor any resulting benefit to the union, would have rendered law-

ful the transfer of general union funds to a federal political cam-

paign. * * * Thus, approval or benefit cannot make the con-

version ‘to the use of another’ in this case any less unlawful. If

the use to which the money is knowingly transferred is unlawful,

then the transfer constitutes a violation of §501(c).” [482 F.2d

pp. 764-765].

18

Although the majority opinion admits that Defendants

could not claim authorization under their constitution to

make expenditures which violate specific provisions or

express policies of federal law (App. A, infra, p. 45),

the majority overlooked the fact that this Court has pre-

viously ruled that Congress did forbid use of compulsory

dues for non-bargaining purposes, as noted in Street, Allen

and Abood.

Defendants should not be permitted to claim authority

to give away compulsory dues funds in violation of federal

labor laws under which those funds have been collected,

and in violation of the general rule that trustees shall

not be assumed to have power to give away trust funds

to those who are not beneficiaries of the trust. Scortr

on Trusts, $190.10. Plaintiffs should have been permitted

to have depositions and discovery and a hearing on the

merits to question the motivation and purposes of Defen-

dants and the recipients of the union funds. Section 187,

Scott and RESTATEMENT, TRUSTS 2d.

In an action for an accounting, it should not be Plain-

tiffs’ burden to demonstrate that the challenged expendi-

tures were not authorized. Rather, it is the burden of

the Defendants to make a full disclosure of the expendi-

tures and to demonstrate how those expenditures were

authorized. Union Electric Co. v. Boehm, 92 F.Supp. 177,

180 (E.D. Mo. 1950), appeal dismissed 186 F.2d 715, 716

(8th Cir. 1951); Highway Truck Drivers v. Cohen, supra,

182 F.Supp. at p. 619.

Under Part C, the majority opinion ruled the Plaintiffs

could not rely upon allegations that Defendants had con-

tributed union funds to candidates for federal offices in

violation of 18 U.S.C. 610, because the Federal Election

Campaign Act Amendments of 1976 repealed 610 and

re-enacted its substance at 2 U.S.C. 44lb. However, the

19

Court overlooked the fact that Title I, Section 114 of that

Act, 90 Stat. 495 (quoted at note 1, supra) provided that

18 U.S.C. 610 shal: be “treated as remaining in force for

the purpose of sustaining any proper action or prosecution

for the enforcement of any penalty, forfeiture or liabil-

a

The majority erroneously relies on Cort v. Ash, 422

U.S. 66 (1975) as justifying the dismissal of Count Two.

That decision expressly noted that Congress has shown

concern, in permanently expanding §610 to unions, “with

protecting union members from use of their funds for

political purposes.”"* After noting that the relationship

of a stockholder to his corporation is vastly different from

the involuntary relationship between the union and its

members, the Court expressly indicated in Cort v. Ash,

supra, that it intimated no view whether the decision in

that case would mean a union member could not sue

his union officers in a derivative action implied under

18 U.S.C. 610 for unlawful expenditures of funds. 422

U.S. at 81 (note 13).

This case calls for the Court to answer the question

left open in Cort v. Ash, and to construe the provisions

of LMRDA Section 501 which have not previously been

construed by this Court. The majority opinion below,

and the McNamara decision from the Seventh Circuit

which was followed by the majority, too narrowly construe

the fiduciary duties of union officers, and the responsibil-

ities of federal courts under LMRDA Section 501. By

ruling that Plaintiffs’ only right to discovery is under

13. Since this action was instituted in March 1972, it was

clearly erroneous for the majority to view the 1976 amendments

as having extinguished Plaintiffs’ claims, in view of the pro-

vision quoted at note 1, supra. Cort v. Ash, infra, does not dis-

cuss this point.

14. 422 U.S. at 81 (note 13), citing United States v. CIO,

335 U.S. 106, at 135, 142 (Rutledge, J., concurring).

20

LMRDA Section 201 (App. A, infra, p. 41), the majority

overlooks 29 U.S.C. 523. Plaintiffs had a right before

enactment of LMRDA Section 201 to bring a common

law action for an accounting, and 29 U.S.C. 523 provides

that the LMRDA does not extinguish that right. The

District Court should have exercised pendent jurisdiction

along with the LMRDA Section 201 claim under Count

One or the District Court should have pendent jurisdiction

under Count Two. If Plaintiffs cannot maintain an ac-

counting action under Count Two, then the right of inspec-

tion under Count One is illusory, as without Count Two

Plaintiffs would have no remedy for the wrongful expendi-

tures revealed under the Count One action.”®

II. This Case Calls for the Supreme Court to

Exercise Its Power of Supervision. The Court of Ap-

peals Has Permitted the District Court to Dismiss a

Complaint Without Assuming the Facts Alleged by

Plaintiffs Are True. Even If the Dismissal Be Viewed

As a Summary Judgment, the Court of Appeals Has

Assumed As True Factual Assertions Made by Defen-

dants (Many of Which Were Not Sworn to by Defen-

dants) and Has Assumed That Facts Asserted by

Plaintiffs’ Affidavit Are Not True, and Summary

Judgment Should Not Have Been Permitted to Be

Entered Against Plaintiffs Without Permitting Them

to Have Discovery First As Provided Under F.R.C.P.

56(f). The Decision Below Conflicts With Rulings of

‘the Supreme Court and of Other Courts of Appeal.

As pointed out by the dissenting opinion below (App.

A, infra, pp. 54-55, note 1), the majority opinion committed

15. Cort v. Ash, supra, indicates at 422 U.S. p. 72 (note 6)

that the plaintiff in that case had voluntarily dismissed his state

law claim, thus precluding any possible claim of pendent juris-

diction, unlike the present case. The majority opinion below

(Continued on following page)

21

plain error in assuming the truth of facts opposed to Plain-

tiffs’ allegations while affirming the F.R.C.P. 12(b) (6) dis-

missal of the District Court. (App. B, infra, pp. 59-60).

This Court has repeatedly recognized the elementary rules

which must be followed in reviewing dismissals under

F.R.C.P. 12(b) (6). The motion to dismiss admits the alle-

gations of the complaint. Gardner v. Toilet Goods Assn.,

387 U.S. 167, 172 (1967). The complaint ‘must be taken

“at face value”. California Transport v. Trucking Un-

limited, 402 U.S. 508, 515-516 (1972). A complaint must

not be dismissed for failure to state a claim “unless it

appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him

to relief.”” Conley v. Gibson, 335 U.S. 41, 46 (1957). Since

the complaint alleged that Defendants had used fraudulent

schemes to unlawfully and without authority divert large

sums of money to outsiders for improper purposes which

were contrary to the best interests of the UAW members,

and that compulsory dues have been used for federal elec-

tion campaigns in violation of 18 U.S.C. 610, it was clearly

erroneous for the majority to assume that the opposite

facts were true. It was clearly erroneous for the majority

to assume the good faith of Defendants when the complaint

clearly accused Defendants of bad faith use of fraudulent

schemes and devices to misappropriate union dues monies

to the use of others. The majority’s following of the

Seventh Circuit’s decision in McNamara v. Johnston, supra,

Footnote continued—

(App. A, infra. p. 54, note 7) recognizes Miller v. American Tele-

phone and Telegraph Co., 507 F.2d 759 (3rd Cir. 1974) as properly

holding that a stockholder has a right to bring a derivative action

under state law because of expenditures in violation of 18 U.S.C.

610 and also recognizes that if union members can prove union

funds have been spent in violation of 18 U.S.C. 610 federal law

expressly recognizes a derivative action to remedy such unlawful

use of union funds under 29 U.S.C. 501(b). That recognition

demonstrates the magnitude of the error and injustice in not al-

lowing Plaintiffs an opportunity for discovery or trial to prove

their Count Two claims.

22

shows that this is the second recent occasion where a

court of appeals has grossly departed from the accepted

standards for reviewing a dismisSal of an action of this

type. This case, therefore, calls for this Court to exercise

its supervisory powers to correct such gross departure

from accepted judicial proceedings.

Although the District Court characterizes its decision

as a dismissal for failure to state a claim upon which

relief could be granted (App. B, infra, pp. 64, 66), the ma-

jority attempts to justify the dismissal under the summary

judgment rule. (App. A, infra, p. 41, note 3). How-

ever, the majority failed to follow the accepted standards

for reviewing dismissals under F.R.C.P. 56. The majority

failed to view all pleadings, affidavits and documents in

the record in the light most favorable to Plaintiffs (against

whom the motion was filed), as required under the holding

in Poller v. Columbia Broadcasting System, 368 U.S. 464,

468, 473 (1962). The Second Circuit recognized that the

drastic procedures of summary judgment are generally not

appropriate in derivative actions because the defendants

have the exclusive knowledge of the facts and records

and in such actions have the burden of coming forward

with explanations to justify their actions which are called

into question by the complaint. Schoenbaum v. Firstbrook,

405 F.2d 215 (2d Cir. 1965), cert. den. 395 U.S. 906."®

Plaintiff Huskey filed an affidavit (A. 126-152) with

18 exhibits attached (A. 153-286) which contain extensive

accusations and allegations that Defendants have grossly

and in bad faith exceeded their power and authority in

converting union funds to the use of outside groups for

unlawful purposes. Our Statement of the Case mentions

some of those allegations, which include allegations of

16. That case involved a stockholder’s derivative action,

which is identical in concept to this action under 29 U.S.C. 501(b)

insofar as the point being considered is concerned.

23

use of compulsory dues for non-bargaining purposes and

for contributions to the federal election campaigns in viola-

tion of 18 U.S.C. 610. It was, therefore, clearly erroneous

for the majority to assume the opposite facts were true

in reviewing the dismissal as having been entered under

F.R.C.P. 56, Poller v. C.B.S., supra.

After the District Court had indicated it was going

to treat the motions to dismiss as motions for summary

judgment (A. 121-122), Plaintiffs timely filed opposing

pleadings (A. 122-126) as well as the Huskey affidavit men-

tioned above. (A. 126-286). Plaintiffs alleged that Defen-

dants’ motion should not be considered ripe for determina-

tion under summary judgment procedures, because Defen-

dants had failed to answer interrogatories propounded by

Plaintiffs more than a year earlier (A. 73-93) as to which

Plaintiffs had previously filed motions to compel discovery.

(A. 103-104). Plaintiffs further asserted that discovery

must be afforded to Plaintiffs, as provided under F.R.C.P.

56(f) (quoted at note 5, supra), before Defendants’ motion

to dismiss could be properly treated as a summary judg-

ment motion, because it was impossible for Plaintiffs to

fully respond to the summary judgment motion without

discovery. (A. 124-126). Plaintiff Huskey’s affidavit re-

peated this assertion. (A. 128-129) .'"

17. Paragraph 4 of Huskey’s affidavit (A. 128-129) stated:

4. Affiant shows the Court that it ig impossible for

plaintiffs herein to provide affidavits as to many facts or

to provide copies of documents to document the facts alleged

in the complaint, due to the fact that the plaintiffs in this

action have not been afforded any opportunity to take depo-

sitions or to request production of documents in this partic-

ular case, and although the plaintiffs did file interrogatories

which were served upon the defendants’ attorneys more than

one year ago, on June 15, 1972, requesting the defendants

to answer detailed questions pertaining to facts and matters

which are proper subjects of discovery herein and the truth-

ful answers to which would further support the motion by

plaintiffs herein for summary judgment and would refute

(Continued on following page)

24

Other Circuits have ruled that because of F.R.C.P.

56(f), it is error for the District Court to grant a summary

judgment against Plaintiffs who have been deprived of

opportunities for discovery. Umdenstock v. American

Mortgage & Investment Co., 495 F.2d 589 (10th Cir. 1974);

Shoenbaum v. Firstbrook, supra.'* The majority’s decision

below is in conflict with those decisions from the Tenth

and Second Circuits, and constitutes such a clear departure

from accepted judicial proceedings as to call for exercise

of this Court’s supervisory powers.

Footnote continued—

the contentions made by the defendants in support of their

motions to dismiss which the Court is treating as a motion

for summary judgment, and although the plaintiffs have

filed motions to compel defendants to answer said inter-

rogatories or in the alternative for a default judgment

against the defendants, and motions to compel said answers

to be made, the Court herein has not required the defendants

to answer said interrogatories and until said answers are

provided and until said discovery is permitted including

depositions of each of the defendants, and production of all

of the documents which the plaintiffs have requested per-

mission to inspect under Count I and which are reasonably

necessary for the plaintiffs and their attorneys and accoun-

tants to inspect and copy, the plaintiffs are not able to pro-

vide many facts which are in existence but which the plain-

tiffs have not been permitted to discover and the Court is

therefore requested pursuant to Rule 56(f) to refuse the

application by the defendants for a judgment of dismissal

herein and to order a continuance of the requests by defen-

dants for such dismissal to permit full and complete dis-

covery herein to be made by the plaintiffs and to permit

the plaintiffs to thereafter further oppose the said motion

to dismiss and summary judgment motion based upon such

full and complete discovery.

18. At 405 F.2d, page 218, the Court stated:

Summary Judgment

[1, 2] The district court’s grant of summary judgment

against the plaintiff was accompanied by a refusal of his

request for discovery. This court has indicated that sum-

mary judgment should rarely be granted against a plaintiff

in a stockholder’s derivative action especially when the plain-

tiff has not had an opportunity to resort to discovery pro-

cedures. See, for example, Subin v. Goldsmith, 224 F.2d

753 (2d Cir.), cert. denied, 350 U.S. 883, 76 S.Ct. 136, 100

(Continued on following page)

25

IiI. The Remand of Count One for a Hearing As

to Whether Plaintiffs Have ‘‘Just Cause’’ to Inspect

Records As Requested Under LMRDA Section 201 Un-

necessarily Delays and Frustrates Plaintiffs’ Rights.

Other Circuits Have Ruled That the Union Officers

Waive Their Right to Contest Plaintiffs’ Showing of

Just Cause by Failing to Raise the Point As in This

Case, and the Decision Below Is in Conflict With Those

Decisions.

Defendants Hartzell, Worley and Mattix refused to

permit Plaintiffs to inspect any records with the presence

of an attorney or accountant. The decision below finds that

was unlawful, because Plaintiffs have “the right to be

assisted by experts in making the examination, Antal v.

District 5, United Mine Workers of America, 451 F.2d 1187

(3rd Cir. 1971).” (App. A, infra, p. 35). See also Judge

Griffin Bell’s opinion for the Fifth Circuit in Local 1419,

I.L.A. v. Smith, 301 F.2d 791, 796 (5th Cir. 1962), where it

was found that analogous cases which allowed stockholders

to have assistance of attorneys and accountants should be

followed in cases of this type, and that the rights of union

members under LMRDA 201 would be “utterly meaning-

less” if they could not have such assistance.

Footnote continued—

L.Ed. 779 (1955); Colby v. Klune, 178 F.2d 872 (2d Cir.

1949); Fogelson v. American Woolen Co., 170 F.2d 660 (2d

Cir. 1948). The plaintiff typically has in his possession only

the facts which he alleges in his complaint. Having little

or no familiarity with the internal affairs of the corporation,

he is faced with affidavits setting forth in great detail man-

agement’s version of what actions were taken and what

motives led the affiants to take these actions. Since the facts

in such a case are exclusively in the possession of the de-

fendants, summary judgment should not ordinarily be granted

where the facts alleged by the plaintiff provide a ground for

recovery, at least not without allowing discovery in order

to provide plaintiff the possibility of counteracting the effect

of defendants’ affidavits.

(Continued on following page)

26

The only reason given by Defendants for refusing the

requested inspection were admittedly unlawful reasons.

(A. 131-134, 278-286). Plaintiffs were never requested,

prior to filing of this action, to show any further just cause,

and Defendants, therefore, should have been ruled to have

waived any requirement for a hearing on the question of

“just cause”. Fruit and Vegetable Packers, etc., Local 760

v. Morley, 378 F.2d 738, 743-744 (9th Cir. 1967) held the

union officers waived any requirement for a showing of

“just cause” because they failed to respond to the request

for inspection. In this case, the waiver was even more

clear, because the only response made by Defendants to

Plaintiffs’ request was the refusal, fir unlawful reasons,

to allow the inspection and a failure by Defendants to raise

any question as to “just cause”. It was, therefore, unneces-

sary for the Court of Appeals to remand this case for a

determination of “just cause”.

The axiom “justice delayed is justice denied” is appli-

cable here, and the 1971 records inspection request should

not be further delayed by the requirement of an unneces-

sary hearing in the District Court, and possible further

Footnote continued—

[3] Indeed in many stockholder’s derivative actions

there will be issues as to the knowledge, intent and motive

which will require a full trial with an opportunity to observe

the demeanor of the witnesses, and to conduct cross-exami-

nation in open court. Im such cases summary judgment can-

not be granted even after discovery has been had. See

Subin v. Goldsmith, supra, 224 F.2d at 757. See also Poller

v. CBS, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458

(1962) (“We believe that summary procedures should be

used sparingly in complex antitrust litigation where motive

and intent play leading roles, the proof is largely in the

hands of the alleged conspirators, and hostile witnesses

thicken the plot.”); Cross v. United States, 336 F.2d 431, 434

(2d Cir. 1964); Alvado v. General Motors Corp., 229 F.2d

408, 411-12 (2d Cir. 1955), cert. denied 351 U.S. 983, 76

S.Ct. 1050, 100 L.Ed. 1497 (1956). (For a discussion of a

number of additional cases, see Judge Frank’s opinion in the

Subin case.)

27

appeals before the inspection is afforded, when the record

is clear there is no genuine dispute as to “just cause” and

Plaintiffs are entitled to inspect the records as a matter of

law under LMRDA Section 201. The decision below con-

flicts with Local No. 1419, I.L.A. v. Smith, supra, where the

Fifth Circuit approved summary judgment in similar cir-

cumstances.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

DONALD W. JONES

PREWITT, JONES & KARCHMER

110 Landmark Building

P.O. Box 1185 S.S.S.

Springfield, Missouri 65806

THOMAS M. HANNA

McManon, BERGER, BRECKENRIDGE & HANNA

7701 Forsyth Blvd.

Clayton, Missouri 63105

RayMonp J, LAJEUNESSE

Rex REED

8316 Arlington Blvd.—Suite 600

Fairfax, Virginia 22030

JoHN L. KILCULLEN

KILCULLEN, SMITH & HEENAN

1800 M Street, N.W.

Suite 600

Washington, D. C. 20036

Attorneys for Petitioners

June, 1979

29

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 77-1094

Ernest Gabauer, Joe DeLos Santos, Jr., Coleman G. Lewis,

Jr., C. L. Greenfield, Elbert Hill and Claude J. Huskey,

Appellants,

v.

Leonard Woodcock, Emil Mazey, Kenneth Worley, C. E.

Mattix, Edward Lavin, John T, Webster, Roy Hartzell and

Donald Young,

Appellees.

Appeal from the United States District Court for the

Eastern District of Missouri.

Submitted: April 13, 1978

Filed: March 6, 1979

Before GIBSON, Chief Judge, and LAY, HEANEY,

BRIGHT, ROSS, STEPHENSON and HENLEY, Cir-

cuit Judges, en banc.

HEANEY, Circuit Judge,

This case is before the Court en banc on the appellees

petition for rehearing. The appellants are members of the

United Automobile, Aerospace and Agricultural Implement

30

Workers of America (UAW) and its Local 25 in St. Louis,

Missouri. The appellees are, or were at the time this liti-

gation commenced, officers of the UAW International

Union, Local 25, or affiliated Community Action Program

Councils (CAP Councils). The complaint contains two

counts. In the first count, the appellants invoke §§201(c)

and 301(a) and (b) of the Labor-Management Reporting

and Disclosure Act (LMRDA), 29 U.S.C. §§431(c) and

461(a) and (b), to gain an opportunity to inspect various

union books and records. In the second count, the appel-

lants allege a cause of action based on §501 of the LMRDA,

29 U.S.C. §501, for the appellees’ involvement in the dis-

bursement of union funds to various political, social and

civic organizations. The District Court dismissed the first

count in part for improper venue and in part for a pleading

deficiency. The court also dismissed the second count in

its entirety for failure to state a claim upon which relief

could be granted. When the matter was first before us, we

affirmed in part and reversed in part as to the first count,

and affirmed the dismissal of the second count. We adhere

to our earlier opinion.’

COUNT I

The appellants filed their complaint in the Eastern

District of Missouri. In Count I, they requested an order

requiring the appellees to make available to them certain

union records. Section 201(b) requires that every labor

organization file with the Secretary of Labor an annual

report, signed by the president and treasurer of the organi-

1. We have adopted much of the unpublished opinion of the

panel that initially decided this matter. Our original opinion is

withdrawn. The District Court’s opinion is published at 425

F.Supp. 1 (E.D. Mo. 1976). See Huskey v. United Automobile,

Aerospace & A. I. Wkrs., 520 F.2d 1096 (8th Cir. 1975), cert. de-

nied, 423 U.S. 1061 (1976); Gabauer v. Woodcock, 520 F.2d 1084

(8th Cir. 1975), cert. denied, 423 U.S. 1061 (1976).

31

zation which describes, among other things, the disburse-

ments made by it during the preceding fiscal year. In

addition, §201(c) provides:

Every labor organization required to submit a report

under this title shall make available the information

required to be contained in such report to all of its

members, and every such labor organization and its

officers shall be under a duty enforceable at the suit

of any member of such organization in * * * the

district court of the United States for the district

in which such labor organization maintains its princi-

pal office, to permit such member for just cause to

examine any books, records, and accounts necessary

to verify such report.

29 U.S.C. §431(c).

Section 301(a) subjects labor organizations which es-

tablish and administer trusteeships over subordinate bodies

to certain additional reporting requirements. Every such

labor organization must file with the Secretary of Labor

semiannual reports signed by the president, treasurer, and

trustees which include the reasons for the establishment

or continuation of the trusteeship and the financial condi-

tion of the subordinate organization. In addition, the labor

organization must file the annual §201(b) financial report

on behalf of the local unit. Finally, §301(b) makes the

private inspection provisions of §201(c) applicable to all

§301 (a) reports.

The appellees filed a motion to dismiss the complaint,

stating, with respect to Count I, that venue was improper;

that the appellants failed to meet the just cause and speci-

ficity requirements of §201(c); and that the action was

barred in part by the statute of limitations. The District

Court granted the appellees’ motion to dismiss in part —

for improper venue and in part for a pleading deficiency.

32

Venue is governed by §201(c). This section keys

venue to the principal office of the labor organization

required to file the report in question. The appellants

seek to verify four annual financial reports for Local 25.

Three of these were prepared and signed by the president

and treasurer of the local, but one was apparently filed

by the UAW International and its trustees on behalf of

Local 25. In addition, the appellants seek certain reports

and records from the local CAP councils and other records

from the UAW which has its principal offices in Detroit.

The appellees conceded to the trial court that venue was

proper as to the records necessary to substantiate the

reports filed by local officials. Conversely, there can be

little dispute that venue was improper with respect to

the reports filed by the International officials pertaining

to files and records kept in Detroit.

The controversy involves the records necessary to ver-

ify the trustees reports filed pursuant to §301(a). The

lower court ruled that venue was improper as to these

reports:

As this Court reads 201(c), since the UAW was the

organization required to file a report by 301, a suit

for the records necessary to verify this report could

only have been brought against the UAW or its officers

and could not have been brought against Local 25

or its officers, even though the report concerned the

financial condition of Local 25. A suit under 201(c)

cannot be brought against the UAW in this Court

since venue would be improper.

Gabauer v. Woodcock, 425 F.Supp. 1, 4 (E.D. Mo. 1976).

The appellants insist that the existence of a trusteeship

should not change the place of venue for reports filed

on behalf of the local unit.

33

Although the venue provisions of §$301(b) and 201

(c) could be construed in the manner adopted by the

District Court, we think the better view would permit

suit for the verification of §201(b) reports signed by

trustees on behalf of a subordinate labor organization to

be brought at the location where the records necessary

to verify those reports are most likely to be. The trustee-

ship had been discontinued by the time the suit was com-

menced, so we cannot imagine that the UAW would have

kept the records at issue in its Detroit office during any

relevant period of time. Taking that fact into account,

we hold that venue was appropriate insofar as the appel-

lants sought records actually under the control of Local

25 officials, even though those records are relevant only

to reports filed by the UAW and its trustees. For the

records actually under the control of International officials,

however, venue may be found only in the district of the

principal International office.

Although the District Court understood that venue

was appropriate for some of the records sought, it dismissed

Count I in its entirety. The court explained: “[U]ntil

amended pleadings are filed for that part of Count I over

which this Court has venue, the question of the statute

of limitations cannot be resolved.” Id. To remedy this,

the court dismissed Count I, giving the appellants twenty

days within which to file an amended petition. We are

aware of no authority which suggests that a complaint

is subject to dismissal if it fails to plead in such a way

that the statute of limitations question can be resolved

on a motion to dismiss. In general, the limitations question

is an affirmative defense to be pleaded and proved by

the appellees. We note that Federal Rule of Civil Proce-

dure 12(e) provides:

34

If a pleading to which a responsive pleading is per-

mitted is so vague or ambiguous that a party cannot

reasonably be required to frame a responsive pleading,

he may move for a more definite statement before

interposing his responsive pleading. The motion shall

point out the defects complained of and ‘he details

desired.

The record in this case reflects no such motion, and we

can perceive no need for a sua sponte dismissal of the

complaint on this ground in this case.”

Since venue was proper with respect to the bulk of

the records sought, we reinstate the complaint aid remand

this case to the District Court for further proceedings.

In view of the continuing disputes as to whether just

cause has been shown for the examination of the books

and the nature and scope of the examination if such cause

has been shown, we deem it important to lay down guide-

lines for the assistance of the District Court.

First, the party seeking to examine the union records

has the burden of showing just cause.

Second, the just cause requirement must be read in

a narrow sense when invoked to resist an examination.

It is sufficient if a reasonable union member would be

put to further inquiry. Fruit and Vegetable Packers &

Ware. Local 760 v. Morley, 378 F.2d 738 (9th Cir. 1967);

Allen v. Local 92, Iron Workers. 47 L.R.R.M. 2214 (N.D.

Ala. 1960).

Third, a principal purpose of the reporting provision

is to provide union members with the vital information

necessary for them to take effective action in regulating

affairs of their organization. Individual members of

2. We express no view on the statute of limitations ques-

tion.

35

a union are fully competent to regulate union affairs if

they have minimum democratic safeguards and detailed

essential information about the union. S.Rep. No. 187,

86th Cong., Ist Sess. 8 (1959), reprinted in I NLRB, LEGIS-

LATIVE HISTORY OF THE LABOR-MANAGEMENT

REPORTING AND DISCLOSURE ACT OF 1959, at 405

(1959) [hereinafter cited as LEGISLATIVE HISTORY];

United States v. Budzanoski, 462 F.2d 443 (3rd Cir.), cert.

denied, 409 U.S. 949 (1972).

Fourth, the right to examine includes the right to

make such copies as are reasonably necessary for the con-

duct of the examination, subject to the right of the union

to protect itself against harassment and copying of pro-

tected materials, Conley v. United Steelworkers of Amer-

ica, etc., 549 F.2d 1122 (7th Cir. 1977), and the right to.

be assisted by experts in making the examination, Antal

v. District 5, United Mine Workers of America, 451 F.2d

1187 (3rd Cir. 1971).

Fifth, the records of the Missouri CAP Council and

the Greater St. Louis CAP Council are union records within

the purview of §201.

COUNT II

In Count II of their complaint, the appellants allege

that the appellees have violated §501 of the LMRDA

which provides in part as follows:

(a) * * * The officers, * * * and other rep-

resentatives of a labor organization occupy positions

of trust in relation to such organization and its mem-

bers 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

36

and its members and to manage, invest, and expend

the same in accordance with its constitution and by-

laws and any resolutions 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 connected with his duties

and from holding or acquiring any pecuniary or per-

sonal interest which conflicts with the interests 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

bylaws of such a labor organization or a general excul-

patory resolution of a governing 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.

(b) * * * When any officer, * * * or repre-

sentative of any labor organization is alleged to have

violated the duties declared in subsection (a) and the

labor organization or its governing board or officers

refuse or fail to sue or recover damages or secure

an accounting or other appropriate relief within a

reasonable time after being requested to do so by any

member of the labor organization, such member may

sue such officer, * * * or representative in any

district court of the United States * * * to recover

damages or secure an accounting or other appropriate

relief for the benefit of the labor organization. No

such proceeding shall be brought except upon leave

of the court obtained upon verified application and

for good cause shown, which application may be ex

parte.

37

They allege that the violations consist of unlawfully and

wrongfully diverting a large part of

CAP fund money into the political campaigns of candi-

dates for public office and for various partisan political

activities totally unrelated to the interests and welfare

of the union and its members or to the functions

and purposes of the union as collective bargaining

representatives of plaintiffs and their fellow dues pay-

ing members of the union. Plaintiffs are further in-

formed and believe, and therefore aver, that defen-

dants have paid over and expended, and are now

continuing to pay over and expend, substantial

amounts of CAP fund money in the form of cash

contributions to candidates for federal office, including

candidates for President, Vice-President, Senate and

House of Representatives, and have otherwise ex-

pended said CAP funds to support the candidacy

of candidates for said offices, all in violation of the

federal statutory prohibitions against such expendi-

tures by labor organizations provided in the Federal

Corrupt Practices Act. 18 U.S.C. Section 610.

* * * [They] have regularly and over long periods

of time unlawfully and wrongfully diverted a sub-

stantial part of union membership dues money and

other union assets to various organizations and groups

espousing and promoting ideological doctrines and

causes totally unrelated to, and in many instances

antithetical to, the interests and welfare of the union

and its members * * * [including]:

National Students Associations (NSA)

Students for a Democratic Society (SDS)

Students Non-Violent Coordinating Committee

(SNCC)

38

New Mobilization for Peace

Turn Toward Peace

Citizens Committee for a Nuclear Test Ban

National Committee for a Sane Nuclear Policy

(SANE)

Americans for Democratic Action (ADA)

United World Federalists

Peace With Freedom Inc.

Dubois Memoriai Committee

Confederate Spanish Societies

United States Committee for Democracy in Greece

and numerous other such organizations.

The appellants further allege that:

[The] defendants have wrongfully refused to permit

the plaintiffs personally and through attorneys and

accountants of their choosing and designation to in-

spect the financial records of Local 25 and the various

funds controlled by the defendants into which the

fees, dues and assessments exacted from the plaintiffs

and their fellow members have been diverted by the

defendants, including the aforesaid CAP Council funds.

Defendants have rendered it impossible for the

plaintiffs to have taken any measures to prevent the

unlawful and wrongful diversions of union money and

assets as aforesaid due to the secrecy of the defendants

in committing said violations and due to the wrongful

taking over by the defendants of all of the assets,

properties, and affairs of the Chevrolet Unit of Local

25 in such manner as to prevent the plaintiffs from

being able to effectively exercise any rights under

39

the Local Union bylaws or Constitution or to be able

to have access in any meaningful way to any of the

intra-union remedies and procedures.

The appellants finally allege that they

* * * hav[e] fully exhausted all remedies and pro-

cedures available to them to the best of their abili-

ties[.]

Prior to filing this action, plaintiffs have requested

the Executive Boards of UAW International and UAW

Local 25, to file suit to secure an accounting by de-

fendants and to recover damages from them for viola-

tion of their fiduciary duties * * *, but the said

labor organizations and the governing boards and of-

ficers thereof have failed and refused to take such

action[.]

The appellants asked the District Court to:

A. Direct defendants * * * to furnish a full

and complete accounting for the period from 1962

to the present with respect to moneys received by

them in their capacity as officers or representatives

of Local 25, or the International Union, or in respect

of any other fund derived from dues and fees of mem-

bers of Local 25, including CAP funds, and to furnish

a full and complete accounting for such period respect-

ing all moneys expended by them including all

amounts expended for or in connection with partisan

political activities and support of ideological causes

or organizations or groups espousing ideological causes.

B. Direct defendants * * * [to] make avail-

able for inspection by plaintiffs and such accountants

and attorneys as they may employ all books, accounts,

and records pertaining to the financial affairs of Local

40

~ 25 UAW Region 5 CAP funds, Greater St. Louis CAP

funds, and any other funds derived from dues and

fees of the members of local 25.

C. Issue an order restraining and enjoining said

defendants in their capacities as officers or represen-

tatives of Local 25 or the International Union from

making any expenditures, either directly or indirectly,

for partisan political activities or for support of ideo-

logical causes or organizations or groups espousing

ideological causes, from the dues and fees paid in

by plaintiffs and other employees of the General Mo-

tors Corporation Chevrolet Assembly Plant under and

through the compulsory membership requirements of

the labor agreements as herein alleged.

D. Require the defendants individually to repay

to Local 25 all sums of money wrongfully diverted

by them into partisan political campaign activities and

ideological causes and organizations in violation of

the rights of such members and the plaintiffs as afore-

said.

E. Issue an order requiring UAW, UAW Local

25 and the officers thereof to pay reasonable attorney's

fees and other costs and expenses of this action, in-

cluding a reasonable fee of any accountants or other

persons whose services may be necessary to obtain

full and complete disclosure of the financial records

and data of UAW Local 25, and other funds adminis-

tered by defendants as herein alleged.

The District Court dismissed this count for failure

to state a cause of action. We feel that it acted properly.

41

A.

We do not view §501 as an independent discovery

tool to investigate official use of union funds. Section

201 provides that tool. If §501 were read as broadly

as appellants would have it, $201 would become super-

fluous. Section 501 is but one provision in an entire act.

It is not intended to encompass all of the duties and

rights of the entire act. Section 201 is the provision in-

tended by Congress to compel the union hierarchy to reveal

to the membership the nature and detail of official union

activities. As construed by this Court, that section will

provide the membership with the information they need.

Section 501, by contrast, describes not a general duty to

report but the nature of the obligation an individual as-

sumes with his union office. Thus, insofar as the appel-

lants invoke §501 as a discovery tool to investigate official

uses of their funds, their efforts are misplaced. Section

201 provides their remedy if one exists.

B.

We believe that the trial court properly followed Mc-

Namara v. Johnston, 522 F.2d 1157 (7th Cir. 1975), cert.

denied, 425 U.S. 911 (1976), and correctly held that the

appellees did not breach their fiduciary duty by making

the questioned expenditures.* In our view, the expendi-

3. The decision appealed from must be treated as an order

of summary judgment. Rule 12(b) states in pertinent part:

If, on a motion asserting the defense numbered (6) to dismiss

for failure of the pleading to state a claim upon which relief

can be granted, matters outside the pleading are presented

to and not excluded by the court, the motion shall be treated

as one for summary judgment and disposed of as provided

in Rule 56 * * *.

The lower court treated the matter as a motion for summary

judgment. This was clearly appropriate inasmuch as both parties

submitted extensive affidavits and exhibits relating to the stated

claim.

42

tures were clearly authorized by the union’s cénstitution

and resolutions of the union’s national convention.‘

The 1968 UAW convention gave the International Ex-

ecutive Board (IEB) interim authority to establish a na-

tional and local CAP structure to replace the soon-to-

be-terminated relationship with the AFL-CIO programs.

The IEB thereafter established a CAP structure which

has since been ratified by UAW cofiventions.

4. Though the appellants do not presently pursue their

private claims, those remedies remain unaffected by the outcome

of this derivative litigation. The UAW has adopted a rebate

procedure under which the appellants are entitled to a rebate

of a proportion of their dues corresponding to the amount of

union funds which are allocated to political activities. The UAW

Constitution, Article 16, Section 7, provides:

(a) Any member shall have the right to object to the

expenditure of a portion of his dues money for activities or

causes primarily political in nature. The approximate pro-

portion of dues spent for such political purposes shall be

determined by a committee of the International Executive

Board, which shall be appointed by the President, subject

to the approval of said Board. The member may perfect his

objection by individually notifying the International Secre-

tary-Treasurer of his objection by registered or certified

mail; provided, however, that such objection shall be timely

only during the first fourteen (14) days of Union member-

ship and during the fourteen (14) days following each an-

niversary of Union membership. An objection may be con-

tinued from year-to-year by individual notifications given

during each annual fourteen (14) day period.

(b) If an objecting member is dissatisfied with the

approximate proportional allocation made by the committee of

the International Executive Board, or the disposition of his

objection by the International Secretary-Treasurer, he may

appeal directly to the full International Executive Board

and the decision of the International Executive Board shall

be appealable to the Public Review Board or the Convention

Appeals Committee at the option of said member.

The appellees contend that the UAW’s rebate procedure,

together with the failure of the appellants to avail themselves

of that remedy, bars this suit, relying on Abood v. Detroit Board

of Education, 431 U.S. 209 (1977); Brotherhood of Railway and

S.S. Clerks v. Allen, 373 U.S. 113 (1963); International Ass’n of

Machinists v. Street, 367 U.S. 740 (1961); Railway Employes

Dept. v. Hanson, 351 U.S. 225 (1956). The appellants object that

(Continued on following page)

43

The 1972 UAW Constitution catalogues some of the

objectives of the UAW in Article 2:

Section 4. * * * to vote and work for the election

of candidates and the passage of improved legislation

in the interest of all labor. * * *

Section 5. To engage in legislative, political, educa-

tional, civic, welfare and other activities which fur-

ther, directly or indirectly, the joint interests of the

membership of this organization in the improvement

of general economic and social conditions * * *.

Article 23, Section 1, describes the objective and purpose

of the UAW Community Action Program:

[I]t shall engage in community, civic, welfare, edu-

cational, environmental, cultural, citizenship-legisla-

tive, consumer protection, community services and

other activities to improve the economic and social

conditions of UAW members and their families and

to promote the general welfare and democratic way

of life for all people.

Footnote continued—

the procedure is deficient in various respects. These arguments

are inapposite. In each of the cases cited in this note, individuals

sought to recover for themselves union dues or agency fees that

the union had devoted to political and ideological purposes. While

a rebate procedure may have some effect on such private claims,

compare Reid v. McDonnell Douglas Corporation, 443 F.2d 408

(10th Cir. 1971), after remand, 479 F.2d 517 (1973), with Seay

v. McDonnell Douglas Corporation, 427 F.2d 996 (9th Cir. 1970),

after remand, 533 F.2d 1126 (1976), it cannot bar derivative

claims of the sort pressed here.

Since the appellants in this case have eschewed their per-

sonal rights in favor of a derivative cause of action on behalf of

the union for the recovery of damages from union officers, the

issues in this case are very different than those of the cases cited

above. We need not consider, as did those courts, the fiduciary

duty of a union to its dissenting members. The issue in this case

is the very different duty of union officers to the union organiza-

tion. The adoption of a rebate procedure by the organization

has little relevance to the question whether an officer has ful-

filled the trust of his office.

44

Article 7, Section 2, authorizes the expenditure of union

funds to accomplish the objectives of the UAW and con-

fers on the International Executive Board substantial su-

pervisory discretion. To similar effect is Article 23, Sec-

tion 8. In addition, convention resolutions affirmatively

encouraged support for diverse causes, many of which

have no more proximate relation to collective bargaining

than do the groups disliked by the appellants. The mem-

bership did not try, by either the constitution or the resolu-

tions, to circumscribe the discretion of union officials. The

appellants argue that the pertinent provisions require that

expenditures be for “the benefit of the members” but

the language quoted above invokes much broader concerns.

The union membership chose not to specifically restrict

the discretion of union officers. Given the broad authori-

zations endorsed by the union membership and the absence

of specific restrictions, this Court has neither the power

nor standards by which to review expenditures challenged

by a minority of the union merely because of their politi-

cally controversial character.

The appellants contend that the constitutional provi-

sions and resolutions are void under §501 as general ex-

culpatory clauses. McNamara v. Johnston, supra, disposed

of an identical claim as follows:

Section 501 was intended to follow “the well-estab-

lished distinction between conferring authority upon

an agent or trustee, which is permissible and protects

him against liability, and attempting to excuse

breaches of trust, which is here made void as against

public policy.” H.R. Rep. No. 741, 86th Cong., 1st

Sess. 81-82, U.S. Code Congressional and Administra-

tive News, 2480 (1959). Without doubt, the provi-

sions and resolutions upon which the UAW relies fall

within the former category of measures that confer

authority.

Id. at 1164.

45

We agree with that disposition.

We find little merit in the appellees’ view that any

expenditure unrelated to legitimate collective bargaining

activities violates §501. The plain language of the section

belies their argument. Section 501 specifically provides

that union representatives have the duty to expend union

funds in accordance with the union’s constitution, bylaws

and resolutions of the governing bodies adopted there-

under. See Bright v. Taylor, 554 F.2d 854 (8th Cir. 1977);

Pignottt v. Local +3 Sheet Metal Workers’ Int. Ass’n,

477 F.2d 825 (8th Cir.), cert. denied, 414 U.S. 1067 (1973);

Johnson v. Nelson, 325 F.2d 646 (8th Cir. 1963); Highway

Truck Drivers & Helpers, etc. v. Cohen, 284 F.2d 162

(3rd Cir. 1960), cert. denied, 365 U.S. 833 (1961); Clark,

The Fiduciary Duties of Union Officials Under Section

501 of the LMRDA, 52 Minn. L. Rev. 437 (1967); Katz,

Fiduciary Obligations of Union Officers Under Section 501

of the Labor-Management Reporting and Disclosure Act

of 1959, Lab. L. J. 542 (June, 1963); Note, The Fiduciary

Duty of Union Officers Under the LMRDA: A Guide

to the Interpretation of Section 501, 37 N. Y. U. L. Rev.

486 (1962); Cox, Internal Affairs of Labor Unions Under

the Labor Reform Act of 1959, 58 Mich. L. Rev. 819 (1960);

Smith, The Labor-Management Reporting and Disclosure

Act of 1959, 46 Va. L. Rev. 195 (1960).

There will, of course, be exceptions to this rule, e.g.,

where the expenditures are violative of a specific provision

or express policy in the Act, such as §202(a) conflicts

of interest; §401(g), using union funds to promote the

candidacy of persons; and §503(a), making a loan to an

officer in excess of $2,000. But the exceptions are not

applicable here. Without express authorization of Con-

gress, we cannot take unto ourselves the role of deciding

which causes a union can or cannot support.

46

The legislative history of §501 also supports the view

we have adopted. See McNamara v. Johnston, supra. The

section originated in the House Education and Labor Com-

mittee. The report of the Committee emphasized that

the government must make certain that the power of labor

unions was used “for the benefit of employees whom the

unions represent * * * and not for the personal profit

and advantage of the officers and representatives of the

union.” H.R. Rep. No. 741, on H.R. 8342, 86th Cong.,

Ist Sess. 11 (1959), reprinted in I LEGISLATIVE HIS-

TORY at 769. Nothing in the report indicates any intent

on the part of the House Committee to tell unions that

they could not spend their money on unpopular causes

or organizations if such expenditures were authorized by

the membership. To the contrary, the report states that:

{O]ur language does not purport to regulate the

expenditures or investments of a labor organization.

Such decisions should be made by the members in

accordance with the constitution and bylaws of their

union. Union officers will not be guilty of breach

of trust when their expenditures are within the au-

thority conferred upon them either by the constitution

and bylaws or by a resolution of the executive board,

convention or other appropriate governing body (in-

cluding a general meeting of the members) not in

conflict with the constitution and bylaws.

Id at 81, reprinted in I LEGISLATIVE HISTORY at 839.°

5. Professor Archibald Cox served as a consultant to the

Senate Labor Committee in drafting the LMRDA. In writing

about the problem that concerns us here, he stated:

If there were any ambiguity it would be dispelled by the

statement of five members of the House Labor Committee in

reporting the committee bill for they were the five who spon-

sored the bill and they included Congressman O’Hara, who

proposed Section 501 in the Labor Committee.

(Continued on following page)

47

Senator McClellan was instrurnental in having the section

inserted in the Senate bill. The report of the Senate

Labor Committee states that the Committee followed three

principles in acting on the bill:

1. The committee recognized the desirability of

minimum interference by Government in the internal

affairs of any private organization. Trade unions have

made a commendable effort to correct internal abuses;

hence the committee believes that only essential stan-

dards should be imposed by legislation. Moreover,

in establishing and enforcing statutory standards great

care should be taken not to undermine union self-

government or weaken unions in their role as collec-

tive-bargaining agents.

2. Given the maintenance of minimum demo-

cratic safeguards and detailed essential information

about the union, the individual members are fully

competent to regulate union affairs. The committee

strongly opposes any attempt to prescribe detailed

procedures and standards for the conduct of union

business. Such paternalistic regulation would weaken

rather than strengthen the labor movement; it would

cross over into the area of trade union licensing and

destroy union independence.

3. Remedies for the abuses should be direct.

Where the law prescribes standards, sanctions for their

violation should also be direct. The committee rejects

the notion of applying destructive sanctions to a union,

i.e., to a group of working men and women, for an

Footnote continued—

Cox, Internal Affairs of Labor Unions Under the Labor Reform

Act of 1959, 58 Mich. L. Rev. 819, 829 (1960); See also Wollett,

Fiduciary Problems Under Landrum-Griffin, 13 Annual Confer-

ence on Labor 267, 278-279; Smith, The Labor-Management Re-

porting and Disclosure Act of 1959, 46 Va. L. Rev. 195, 228 (1960).

48

offense for which the officers are responsible and over

which the members have, at best, only indirect control.

Still more important the legislation should provide

an administrative or judicial remedy appropriate for

each specific problem. ,

S. Rep. No. 187, 86th Cong., Ist Sess. 7 (1959), reprinted

in I LEGISLATIVE HISTORY at 403. _

The Senate debates specifically dealt with §501. In

the course of the debates, the following colloquy occurred:

Mr. KENNEDY. Mr. President, I should like to

ask the Senator from Arkansas a few questions.

Suppouse an officer of a union expends money

for an educational purpose, to advance what he and

the other officers consider to be the interests of the

union. Assume that there is nothing dishonest about

the expenditure. It is not an expenditure for the

purpose of taking money in a back-door deal. It is

an honest expenditure for educational purposes, with-

out any impropriety. Under the amendment of the

Senator from Arkansas, would it be possible for a

member to sue, on the argument that the educational

purpose, which he does not like, is not really in keep-

ing with the purposes of a labor organization? Could

he take the case into court?

Mr. McCLELLAN. He might make such an alle-

gation, and he might go to court. Each case must

stand on its own merits. If the court found that

the money was used for legitimate union purposes,

for purposes which were proper under the constitution,

and that it had been voted to authorize the use of

money for educational purposes, I think it would come

within the purview of the authority and right of the

union officer. But, as my friend knows, the purpose

49

of this amendment is to get at those who organize

an executive board of their own, whose members are

all in cahoots. One says to the other, “I will keep

you employed at a good salary and give you a good

expense allowance. You just do what I want.” ,

That sort of thing is being done. Union treasuries

are being pilfered in that way. I believe that this

is a good amendment.

** *¢ &

Mr. KENNEDY. * * *

Mr. President, what I am attempting to do is

ascertain the purpose of the amendment. Is it the

purpose of the amendment to insist that union officers

who expend money shall not have a conflict of in-

terest, and that they shall not attempt, through indi-

rect means, to pilfer a union treasury for their own

benefit? If so, in my opinion it would be a proper

amendment.

Mr. McCLELLAN. That is exactly what I am

trying to do. I have not had the opportunity to study

the question as thoroughly as the Senator has done

during the course of the hearings. However, I know

that there have been flagrant and repeated abuses

in this area.

** & €

Mr. ERVIN. * * * We are under an obligation

to see that the money is safely kept, to the end that

it may be applied to duly authorized and legitimate

union purposes.

Mr. KENNEDY. As I understand, the Senator

from Arkansas holds that view also.

50

Mr. McCLELLAN. That is correct. If the Sen-

ator has any thought that I am trying to interfere

with COPE, that is not correct. There may be amend-

ments directed to that point, and to deal with that

direct question. However, I am not offering my

amendment on the direct question of political contribu-

tions. Everyone knows my views on that subject,

I assume. This is not a drive at that situation. It

is a drive at the skulduggery of some leaders when

they meet in executive session and pay off this one

and pay off that one.

105 Cong. Rec. 5856-5857 (1959), reprinted in II LEGIS-

LATIVE HISTORY at 1130-1131.

In discussing the Conference Report, S. Doc. No. 51,

86th Cong., 1st Sess. ( 1959), the Senate observed that:

The general principles stated in the bill are fa-

miliar to the courts, both State and Federal, and there-

fore incorporate a large body of existing law applicable

to trustees, and a wide variety of agents. The detailed

application of these fiduciary principles to a particular

trustee, officer, or agent has always depended upon

the character of the activity in which he was engaged.

They bear upon a family trustee somewhat differently

than a corporate director, upon an attorney quite dif-

ferently than a rea] estate agent. The bill wisely

takes note of the need to consider “the special prob-

lems and functions of a labor organization” in apply-

ing fiduciary principles to their officers and agents.

The bill does not limit in any way the purposes

for which the funds of a labor organization may be

expended or the investments which can be made. Such

decisions should be made by the members in accor-

dance with the constitution and bylaws of their union.

51

Union officers will not be guilty of breach of trust

under this section when their expenditures are within

the authority conferred upon them either by the con-

stitution and bylaws, or by a resolution of the execu-

tive board, convention or other appropriate governing

body—including a general meeting of the members—

not in conflict with the constitution and bylaws. This

is also made clear by the fact that section 501(a)

requires that the special problems and functions of

a labor organization be taken into consideration in

determining whether union officers and other repre-

sentatives are acting responsibly in connection with

their statutory duties. The problems with which labor

organizations are accustomed to deal are not limited

to bread-and-butter unionism or to organization and

collective bargaining alone, but encompass a broad

spectrum of social objectives as the union may deter-

mine.

105 Cong. Rec. 16415 (1959), reprinted in II LEGISLATIVE

HISTORY at 1433.

C.

The appellants’ allegations pertaining to 18 U.S.C.

§610 complicate the analysis but they do not change the

result of the case. We first consider the appellants’ re-

quest for future injunctive relief. At the outset, we note

that the Federal Election Campaign Act Amendments of

1976, Pub. L. 94-283, May 11, 1976, repealed §610 and

reenacted its substance at 2 U.S.C. §44lb. Thus, when

we speak of future injunctive relief, we must refer to

§441b. In Cort v. Ash, 422 U.S. 66 (1975), the Supreme

Court held that the Federal Election Campaign Act Amend-

ments of 1974 relegated a shareholder’s §610 claim for

injunctive relief against corporate officers to the initial

52

review of the Federal Election Commission (FEC). The

Court dismissed the shareholder’s claim even though the

complaint had been filed before the creation of the FEC.

In McNamara v. Johnston, supra, the Seventh Circuit con-

cluded that a union member’s $501 claim for future injunc-

tive relief was subject to the primary jurisdiction of the

FEC as well insofar as it was premised on violations of

§610. The same result obtains in this case under the

1976 amendments. Congress has explicitly expressed its

desire to have the FEC engage in methods of conference,

conciliation and persuasion before litigation ensues over

any federal election laws. 2 U.S.C. §437g; S. Rep. No.

94-677, 94th Cong., 2d Sess. 1-2 (1976), reprinted in [1976]

U. S. Code Cong. & Ad. News 929-930; H. Conf. Rep.

No. 94-1057, 94th Cong., 2d Sess. 45-50 (1976), reprinted

in [1976] U. S. Code Cong. & Ad. News 960-965. We

should not permit circumvention of such negotiation under

the guise of a parallel cause of action. Thus, the claim

for future injunctive relief must be dismissed for lack

of jurisdiction.

The appellants also press a derivative claim for dam-

ages for the expenditures already made that allegedly vio-

lated §610. Four of the appellees, the appellants claim,

devoted Community Action Program (CAP) funds to

federal political campaigns. This fact alone does not estab-

lish a violation of §610. A 1972 amendment to §610

explicitly permitted the expenditure of funds for “the es-

tablishment, administration and solicitation of contribu-

tions to a separate segregated fund to be utilized for politi-

cal purposes by a * * * labor organization.” This

amendment was intended to codify preexisting law. See

Pipefitters Local Union No, 562 v. United States, 407 U.S.

385, 408-412 (1972). Though the record on UAW contribu-

tions to federal campaigns is somewhat sketchy, it appears

53

that these donations did come from a “separate segregated

fund” or at least from a fund intended to qualify as such

under §610. The UAW’s CAP structure is predominantly

financed with regular dues, but it also includes a separate

V CAP fund supported by voluntary contributions desig-

nated for political causes.* The appellants have introduced

no evidence to indicate that any federal political contribu-

tions were made with general CAP funds, as opposed to

V CAP funds. Since V CAP is separately funded, it is

reasonable to infer that the UAW collectively thought

those monies could legally be used for federal campaigns.

The appellees, as agents, were entitled to rely on the

union’s grant of authority in making political contributions

from the V CAP funds. As stated in McNamara:

[Under the common law of fiduciary obligations, cod-

ified in §501,] it is * * * clear, and fundamental

fairness requires, that as between agent and principal,

an agent cannot be held liable for the use of the

principal’s property in an unlawful manner when it

is reasonable to infer that the principal authorized

the agent’s conduct.

522 F.2d at 1165 (Footnote omitted).

Of course, as pointed out by the McNamara opinion, appar-

ent authority does not immunize union officials from the

6. The 1972 UAW Constitution, Article 12, Section 20, for

example, provides:

The International Executive Board shall create and operate

a Political Action Committee to be known as UAW Volun-

tary Community Action Program Committee (UAW V.

CAP). This Commiitee shall be authorized to make policy

decisions concerning expenditures and contributions involv-

ing federal elections and to make expenditures and contri-

butions from a fund established by voluntary contributions

from UAW members, their families and friends * * *.

_As noted below, we do not hold that the V CAP Councils are

“segregated fund[s]” within the meaning of 22 U.S.C. §44l1b.

We merely hold that it is reasonable to infer that the CAP

structure if intended to comply with that statute.

54

criminal sanctions of §610, or the enforcement provisions

flowing from §441b, upon a showing that V CAP is in

some respects deficient.

There is no evidence in the record to indicate anything

but that the appellees relied on their apparent authority.

There is no evidence that would justify an inference that

the appellees did not comply with the requirements of

their constitution. Nor is there any evidence to the effect

that any of the appellees knew or suspected that their

constitution made any but adequate provision for the re-

quirements of §610. On this record, we think summary

judgment for the appellees was justified.’

We do not hold that the UAW’s CAP structure satisfied

the “segregated fund” requirements of §610 in the years

relevant to the damage claims, or that it presently satisfies

2 U.S.C. §441b. That issue is not before us. Insofar

as the appellants intend to challenge the validity of the

CAP structure, as opposed to a claim that particular officers

violated their duty to the union, they press claims against

the union, which are not cognizable under a §501 deriva-

tive action.

We affirm in part and reverse in part the dismissal

of the §201 claim. We affirm the dismissal of the §501

claim. We remand the case for for further proceedings

consistent with this opinion.

ROSS, Circuit Judge, Dissenting.

7. We do not hold that violations of 18 U.S.C. §610, and

of its successor statute 2 U.S.C. §441b, can never amount to a

violation of §501. Insofar as it is not reasonable to infer that a

given donation was authorized, we think there is a remedy under

§501 for violations of federal election laws. Cf. Miller v. American

Telephone & Telegraph Co., 507 F.2d 759 (3rd Cir. 1974). We

merely hold that apparent authority, if relied on in good faith,

is a defense to liability under §501. See McNamara v. Johnston,

522 F.2d 1157, 1163 (7th Cir. 1975), cert. denied, 425 U.S. 911

(1976).

55

COUNT II

I would reverse the dismissal of appellants’ section

501 claim, because I do not agree that as a matter of

law the challenged expenditures were “clearly authorized”

by the UAW constitution.

By dismissing the section 501 claim at this stage of

the proceedings,’ the majority in effect confers unlimited

discretion upon UAW International officers in their ex-

penditure of the huge amounts of money collected annually

from the union membership.? In my opinion, the UAW

1. Although treated as a summary judgment because mat-

ters outside the pleadings were considered, Count II was dismissed

for failure to state a claim. See FED. R. CIV. P. 12(b). We

therefore review the dismissal in light of the following stan-

dards:

[A] complaint should not be dismissed for failure to state

a claim unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would

entitle him to relief. * * *

[A] complaint should not be dismissed merely because a

plaintiff’s allegations do not support the particular legal

theory he advances, for the court is under a duty to examine

the complaint to determine if the allegations provide for

relief on any possible theory. Nor should a complaint be

dismissed that does not state with precision all elements

that give rise to a legal basis for recovery. Finally, a com-

plaint should not be dismissed merely because the court

doubts that a plaintiff will prevail in the action. That de-

termination is properly made on the basis of proof and not

merely on the pleadings.

The question, therefore, is whether in the light most

favorable to the plaintiff, the complaint states any valid

claim for relief. Thus, as a practical matter, a dismissal

under Rule 12(b)(6) is likely to be granted only in the un-

usual case in which a plaintiff includes allegations that show

on the face of the complaint that there is some insuperable

bar to relief.

Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th

Cir.) (citations omitted), petition for cert. filed, 47 U.S.L.W.

3278 (U.S. Oct. 24, 1978) (No. 75-585).

2. The record reflects that the combined dues income of the

International and Local unions for the years 1969, 1970 and 1971

averaged $148,409,826.00 per year.

56

constitution does not grant completely unfettered discretion

to the officers in their expenditures of union funds.®

The UAW’s objectives as set forth in Article 2 of

its constitution include improving working conditions, seek-

ing election of candidates and passage of legislation “in

the interests of all labor,” working for repeal of laws

“unjust to labor,” obtaining unemployment insurance, en-

gaging in political and other activities “which further,

directly or indirectly, the joint interests of the membership

* * * in the improvement pf general economic and

social conditions,” and assisting organizations “having pur-

poses and objectives similar or related” to those of the

UAW. (Emphasis supplied.)

Article 7(2) authorizes expenditure of UAW funds

to achieve these purposes and objectives “not inconsistent

therewith” and purposes the Executive Board believes

“will further the general interest and welfare of the mem-

bership.” (Emphasis supplied.)

Article 23(1) indicates that the function of the UAW

Community Action Program is “to improve the economic

and social conditions of UAW members and their families

and to promote the general welfare and democratic way

of life for all people.” (Emphasis supplied.)

I do not consider the above-quoted language meaning-

less or superfluous. The union constitution clearly con-

templates a relationship of some kind between the use

of union funds and the interests and welfare of the union

membership. Had the contested contributions been made

3. Any resolution passed by the governing officers which

conflicted with the provisions of the UAW constitution or ex-

ceeded the powers conferred therein would be invalid and could

not be relied upon as authority for expenditures of union funds.

Highway Truck Drivers and Helpers, Local 107 v. Cohen, 284

F.2d 162, 164 (3d Cir. 1960), affirming, 182 F.Supp. 608, 616-22

(E.D. Pa. 1960).

57

to foreign governments, terrorist organizations or groups

seeking destruction of the “democratic way of life,” none

of the avowed objectives of the UAW would have been

served and the donations clearly would not have been

authorized.

Appellants assert in Count II that appellees have con-

tributed union assets “to various organizations and groups

espousing and promoting ideological doctrines and causes

totally unrelated to, and in many instances antithetical

to, the interests and welfare of the union and its members.”

The complaint lists thirteen organizations as recipients of

these union funds as heretofore set forth in the majority

opinion.

Because appellants were denied discovery and an op-

portunity to prove their claim, the record does not reflect

the goals and methods espoused by the recipients of the

challenged UAW contributions. If the ends and means

adopted by these organizations were, as alleged, antithetical

to the interests and welfare of the UAW membership

and inconsistent with the objectives of the UAW, I believe

appellants have a cause of action under section 501 for

misuse of union funds by UAW officers.

Both the majority and the panel of the Seventh Circuit

in McNamara v. Johnston, 522 F.2d 1157 (7th Cir. 1975),

cert. denied, 425 U.S. 911 (1976), pay lip service to the

requirement that union funds be spent as authorized by

the constitution, bylaws or appropriate convention resolu-

tion. But they ignore the allegation of appellants that the

questioned expenditures were in violation of the union’s

‘constitution since they were alleged to be not “in the

interests of all labor” or “which further, directly or in-

directly, the joint interests of the membership * * *”

or in “the general interest and welfare of the membership.”

It is upon this aspect of the case that I have attempted

58

to focus my dissent and the aspect thereof which the

majority has all but ignored.

Judge Stephenson and Judge Henley join in this dis-

senting opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

59

APPENDIX B

ORDER

(Filed in U.S. District Court December 29, 1976)

This motion is before the Court on a separate motion

of plaintiffs to disqualify the following counsel from repre-

senting the individual defendants in this action:

(a) Stephen I. Schlossberg, who is General Coun-

sel of International Union, United Automobile, Aero-

space and Agricultural Implement Workers of Amer-

ica, and any others who have represented said UAW

International Union, of which plaintiffs are members;

(b) Youngdahl, Brewer, Forster, Huckabay and

Uhlig, and ‘James E. Youngdahl, which firm and attor-

ney are Regional Counsel for the International Union,

United Automobile, Aerospace and Agricultural Imple-

ment Workers of America;

(c) Morris J. Levin, who has been retained as

local counsel by the above-named General Counsel

Schlossberg herein, and who has thus been retained

to represent the said labor organization, or Local 25

thereof; and

(d) Any other attorney (or firm of attorneys

with a member thereof) who now represents, or who

has previously represented, the said International

UAW labor organization, or Local 25, or any subdivi-

sion or alter ego thereof.

The grounds relied on by plaintiffs in their motion

to disqualify counsel are applicable only to the Section

501 action of Count II. Count I is not mentioned in plain-

tiffs’ motion or the brief in support of the motion. If

60

Count I were the sole basis for this suit, plaintiffs’ motion

would require little discussion. It has been held that

a Section 201 suit may be brought against officials of

a union without joining the union as a party. Rekant

v. Rabinowitz, 194 F. Supp. 194 (E.D. Pa. 1961). This

holding is also applicable to §301 suits since §201(c)

is made applicable by §301(b) to reports filed under

§30i(a). However, it is clear on the face of §201(c)

that, in an action brought under §201 or §301, this Court

only has jurisdiction over officials in their capacity as

officers and not over the officials as individuals. This

being the case, it is permissible for a union to supply

counsel for defendant officers in a suit brought pursuant

to §201(c).

With respect to Count II, a Section 501 action, in

McNamara v. Johnston, likewise a Section 501 action, 522

F. 2d 1157-67 (Cert. denied 425 U. S. 911), the Court

had this to say:

“Union officials charged as defendants in suits

of this nature should retain independent counsel and

bear the financial burden of their defense. Then, if

they prevail, they may properly be reimbursed by

the union for the costs of their legal defense. (See

Holdeman v. Sheldon, 311 F. 2d 2, 3 (2nd Cir. 1962),

aff’g 204 F. Supp. 890, 895 (S.D. N.Y.)”

Accordingly, this motion would be sustained except

for the prior ruling of this Court dismissing Count II

for failure to state a cause of action. In view of such

prior ruling the motion is stricken, having been made

moot by such ruling.

/s/ Roy W. Harper

U.S. District Judge

61

ORDER

(Filed in U.S. District Court December 29, 1976)

This matter is before the Court on a separate motion

of the International Union, United Automobile, Aerospace

and Agricultural Implement Workers of America (UAW)

and its Local 25, to intervene.

Rule 24(c), Federal Rules of Civil Procedure, requires

that a motion to intervene “shall be accompanied by a

pleading setting forth the claim or defense for which inter-

vention is sought.”

The proposed intervenors’ memorandum in support

of the motion to intervene states: “As required by Rule

24(c), we submit herewith a copy of UAW’s motion to

dismiss as the ‘pleading setting forth the * * * defense

for which intervention is sought.’ ”

A motion to dismiss is not a pleading. Therefore,

Rule 24(c) has not been complied with and the motion

to intervene is denied.

/s/ Roy W. Harper

U.S. District Judge

MEMORANDUM AND ORDER

(Filed in U.S. District Court December 29, 1976)

This action was brought by plaintiffs, citizens of Mis-

souri, and members of the UAW and Local 25, against

defendants, who are officers, agents and representatives

of UAW. The complaint states that defendant Woodcock

is President of UAW; defendant Mazey is Secretary-Trea-

surer of UAW; defendant Worley is Director of UAW

Region 5, Chairman of UAW Region 5 Community Action

62

Program Council, and Administrator of the Chevrolet unit

of UAW Local 25; defendant Mattix is Assistant Director

of UAW Region 5, and Assistant Administrator of the

Chevrolet unit of Local 25; defendant Lavin is President

of UAW Local 25; defendani Webster is Recording Secre-

tary of UAW Local 25; defendant Hartzell is Financial

Secretary of UAW Local 25; and defendant Young is Finan-

cial Secretary of UAW Region 5 CAP Council, and Finan-

cial Secretary-Treasurer of the Greater St. Louis UAW

CAP Council.

The complaint contains two counts. In Count I juris-

diction is alleged under Section 201(c) and Section 301(a)

aad (b) of the Labor Management Reporting and Disclo-

sure Act (LMRDA), 29 USC 431(c) and 461(a) and (b).

Plaintiffs allege, in part, in Count I that on or about

June 12, 1970, defendants Woodcock and Mazey, acting

through the International Executive Board of UAW, im-

posed an administratorship over the Chevrolet unit of Local

25, thereby displacing the authority of the duly elected

officers of said local. Defendants Worley and Mattix were

designated as Administrator and Assistant Administrator,

respectively, and proceeded to assume control and exercise

authority over the affairs of the aforesaid Chevrolet unit,

together with all of the money and assets of said unit.

Plaintiffs further allege in Count I that defendants Wood-

cock, Mazey, Worley and Mattiz were obligated to file

a report pursuant to the provisions of Section 301(a), ~

and the other defendants were obligated to file a report

pursuant to the provisions of Section 201 (c).

Plaintiffs in Count I seek under 201(c) and 301(a)

and (b) to examine books, records and accounts for the

years 1967, 1968, 1969 and 1970, necessary to verify the

two types of reports. They wish to verify the reports

filed by Local 25 pursuant to 201(b) and to verify the

63

reports filed by the UAW pursuant to Section 301(a).

In Count I plaintiffs pray the Court to enter an order

requiring defendants to make available to plaintiffs, and

such attorneys and accountants as may be designated by

plaintiffs, all of the records and documents as set out

in a letter attached to the complaint for the years 1967,

1968, 1969 and 1970.

Count II is an action brought by the plaintiffs pursuant

to the Labor Mar.agement Reporting and Disclosure Act

(popularly referred to as the Landrum-Griffin Act, Section.

501, 29 USC) against union officers for breach of fiduciary

duty in accordance with general resolutions and the Union

constitution authorizing contribution of Union funds to

political candidates in social causes.

Plaintiffs pray in Count II, among other things, that

the Court issue an order enjoining defendants in their

capacities as officers or representatives of Local 25 or

the International Union, from making any expenditures

for partisan political activities or for support of ideological

causes or organizations or groups espousing ideological

causes from the duties and fees paid in by plaintiffs and

other employees of the General Motors Chevrolet Assembly

Plant under and through the compulsory members require-

ments.

This matter is before the Court on defendants’ mo-

tion to dismiss.

The basis for dismissal under Count I is:

A): Venue is improper;

B): Failure to state a claim upon which relief

can be granted because plaintiffs failed to meet the

just cause and specificity requirements of §201(c)

of the Labor Management Reporting and Disclosure

64

Act, 29 USC 431(c), under which jurisdiction is al-

leged; and

C): This action is, in part, barred by the statute

of limitations.

The basis for dismissal under Count II is:

A): Failure to state a claim upon which relief

can be granted under §501 of the Labor Management

Reporting and Disclosure Act, 29 USC 501, under

which jurisdiction is alleged; and

B): This action is, in part, barred by the statute

of limitations.

Plaintiffs bring suit not against the UAW or Local

25, but instead against certain officers of these unions,

which is permissible. Section 201(c) contains a clause

pertaining to venue which provides that “[E]very such

labor organization and its officers shall be under a duty

enforceable at the suit of any member of such organiza-

tion in any state court of competent jurisdiction or in

the district court of the United States for the district

in which such labor organization maintains its principal

office to permit such member for just cause to examine

any books, records and accounts necessary to verify such

report.”

Defendants concede that venue is proper as to plain-

tiffs’ demands to examine the records necessary to verify

the reports filed by Local 25 pursuant to 201(b). Defen-

dants contend, however, that venue is improper as to plain-

tiffs’ demands to the records necessary to verify the report

filed pursuant to 301(a) by the UAW, whose principal

office is not located in this district. As this Court reads

201(c), since the UAW was the organization required to

file a report by 301, a suit for the records necessary to

65

verify this report could only have been brought against

the UAW or its officers and could not have been brought

against Local 25 or its officers, even though the report

concerned the financial condition of Local-25. A suit under

201(c) cannot be brought against the UAW in this Court

since venue woula be improper. Regardless of the wisdom

of the venue provisions of 201(c), plaintiffs* cannot avoid

these provisions by bringing suit against the officers of

the UAW instead of the UAW itself.

Therefore, that portion of Count I which relates to

the report filed by the UAW pursuant to 301(a) should

be dismissed for improper venue or transferred to the

proper district, whereas that part of Count I which seeks

records before the administratorship was imposed on Local

25 would be proper before this Court as against the officers

of Local 25, as it has been held that a section 201 suit

may be brought against officers of a union without nam-

ing the union as a party. Rekant v. Rabinowitz, 194 F.

Supp. 194 (E.D. Pa. 1961). This holding is also applicable

to section 301 suits since 201(c) is made applicable by

301(b) to reports filed under 301(a). However, it is clear

on the face of 201(c) that, in an action brought under

201 or 301, this Court only has jurisdiction over officials

in their capacity as officers and not over the officials

as individuals.

Furthermore, until amended pleadings are filed for

that part of Count I over which this Court has venue,

the question of the statute of limitations cannot be resolved.

With respect to the contention of defendants that Count

I should be dismissed for failure to state a claim upon

which relief can be granted, there is no merit. Springfield

*Original memorandum had word “defendant” here, but this

was changed to “plaintiff” by direction of Judge Harper's letter

to counsel dated February 9, 1977.

66

Television, Inc. v. City of Springfield, Mo., 428 F. 2d 1375

(8th Cir. 1970), Lewis v. Chrysler Motors Corp., 456 F.

2d 605 (8th Cir. 1972).

Accordingly, the defendants’ motion to dismiss Count

I is sustained on the basis set out above, and plaintiffs

are given twenty (20) days within which to file an

amended petition in line with this memorandum.

With respect to Count II, the briefs of the parties

indicate similar suits involving this same question have

been filed against the defendants in several districts around

the country. An examination of McNamara v. Johnston,

522 F. 2d 1157 (7th Cir. 1974), discloses that case to be

one on all fours with Count II of this action, except for

some of the named parties. It would be repetitious for

this Court to deal with the question here. Suffice it to

say that the district court dismissed the complaint for

failure to state a claim (369 F. Supp. 517), the Seventh

Circuit Court of Appeals affirmed, and the Supreme Court

denied certiorari (425 U. S. 911).

Accordingly, the defendants’ motion to dismiss Count

II for failure to state a claim upon which relief can

be granted under Section 501 of the Labor Management

Reporting and Disclosure Act, 29 USC 501, is sustained.

/s/ Roy W. Harper

U.S. District Judge

67

ORDER

(Filed in U.S. District Court January 19, 1977)

Plaintiffs having failed to file a petition amending

Count I of their complaint within the twenty (20) days

granted in this Court’s Order dated December 29, 1976,

and the defendants’ motion to dismiss Count II of plaintiffs’

complaint having been sustained;

IT IS HEREBY ORDERED AND ADJUDGED that

Count I of plaintiffs’ complaint be and the same is hereby

dismissed without prejudice, and,

IT IS FURTHER ORDERED AND ADJUDGED that

Count II of plaintiffs’ complaint be and the same is hereby

dismissed.

/s/ Roy W. Harper

United States District Judge

Dated this 19th day

of January, 1977.

68 ‘

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1978

No. 77-1094

Ernest Gabauer; Joe Delos Santos, Jr.; Coleman, G. Lewis,

Jr.; C. L. Greenfield; Elbert Hill and Claude J. Huskey,

Appellants,

Vs.

Leonard Woodcock; Emil Mazey; Kenneth Worley; C. E. —

Mattix; Edward Lavin; John T. Webster; Roy Hartzell

and Donald Young,

Appellees.

Appeal from the United States District Court for the

Eastern District of Missouri

JUDGMENT

(Filed March 6, 1979)

This cause came on to be heard on the record of

the United States District Court for the Eastern District

of Missouri and briefs of the respective parties and was

argued by counsel.

On Consideration Whereof it is now here ordered and

adjudged by this Court that the judgment of the said

District Court as to the dismissal of the §501 claim be

affirmed; and as to the dismissal of the §201 claim be

and is hereby affirmed in part and reversed in part.

And it is further ordered by this Court that this cause

be and is hereby remanded to the said District Court

for further proceedings consistent with the majority opin-

ion of this Court.

March 6, 1979

69

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1978

77-1094

Ernest Gabauer, et al.,

Appellants,

Vs.

Leonard Woodcock, et al.,

Appellees.

Appeal from the United States District Court for the

Eastern District of Missouri

The Court having considered petition for rehearing

en banc filed by counsel for appellants and, being fully

advised in the premises, it is ordered that the petition

for rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a

petition for rehearing, it is ordered that the petition for

rehearing also be, and it is hereby, denied.

March 27, 1979

70

APPENDIX E

TITLE II—REPORTING BY LABOR ORGANIZATIONS,

OFFICERS AND EMPLOYEES OF LABOR ORGAN-

IZATIONS, AND EMPLOYEKS

Report of Labor Organizations

(29 U.S.C. 431)

Sec. 201. (a) Every labor organization shall adopt a

constitution and bylaws and shall file a copy thereof with

the Secretary, together with a report, signed by its presi-

dent and secretary or corresponding principal officers, con-

taining the following information—

(1) the name of the labor organization, its mail-

ing address, and any other address at which it main-

tains its principal office or at which it keeps the records

referred to in this title;

(2) the name and title of each of its officers;

(3) the initiation fee or fees required from a

new or transferred member and fees for work permits

required by the reporting labor organization;

(4) the regular dues or fees of other periodic

payments required to remain a member of the report-

ing labor organization; and

(5) detailed statements, or references to specific

provisions of documents filed under this subsection

which contain such statements, showing the provisions

made and procedures followed with respect to each

of the following: (A) qualifications for or restrictions

on membership, (B) levying of assessments, (C) par-

ticipation in insurance or other benefit plans, (D)

.

71

authorization for disbursement of funds of the labor

organization, (E) audit of financial transactions of the

labor organization, (F) the calling of regular and spe-

cial meetings, (G) the selection of officers and stew-

ards and of any representatives to other bodies com-

posed of labor organizations’ representatives, with a

specific statement of the manner in which each officer

was elected, appointed, or otherwise selected, (H) dis-

cipline or removal of officers or agcats for breaches

of their trust, (1) imposition of fines, suspensions,

and expulsions of members, including the grounds for

such action and any provision made for notice, hearing,

judgment on the evidence, and appeal procedures, (J)

authorization for bargaining demands, (K) ratification

of contract terms, (I.) authorization for strikes, and

(M) issuance of work permits. Any change in the

information required by this subsection shall be re-

ported to the Secretary at the time the reporting labor

organization files with the Secretary the annual finan-

cial report required by subsection (b).

(b) Every labor organization shall file annually with

the Secretary a financial report signed by its president

and treasurer or corresponding principal officers contain-

ing the following information in such detail as may be

necessary accurately to disclose its financial condition and

operations for its preceding fiscal year—

(1) assets and liabilities at the beginning and

end of the fiscal year;

(2) receipts of any kind and the sources thereof;

(3) salary, allowances, and other direct or indi-

rect disbursements (including reimbursed expenses)

to each officer and also to each employee who, during

such fiscal year, received more than $10,900 in the

72

aggregate from such labor organization and any other

labor organization affiliated with it or with which

it is affiliated, or which is affiliated with the same

national or international labor organization;

(4) direct and indirect loans made to any officer,

employee, or member, which aggregated more than

$250 during the fiscal year, together with a statement

of the purpose, security, if any, and arrangements

for repayment;

(5) direct and indirect loans to any business en-

terprise, together with a statement of the purpose,

security, if any, and arrangements for repayment; and

(6) other disbursements made by it including

the purposes thereof;

all in such categories as the Secretary may prescribe.

(c) Every labor organization required to submit a

report under this title shall make available the informa-

tion required to be contained in such report to all of

its members, and every such labor organization and its

officers shall be under a duty enforceable at the suit of

any mernber of such organization in any State court of

competent jurisdiction or in the district court of the United

States for the district in which such labor organization

maintains its principal office, to permit such member for

just cause to examine any books, records, and accounts

necessary to verify such report. The court in such action

may, in its discretion, in addition to any judgment awarded

to the plaintiff or plaintiffs, allow a reasonable attorney’s

fee to be paid by the defendant, and costs of the action.

* + *

73

TITLE INI—TRUSTEESHIPS

Reports

(29 U.S.C. 461)

Sec. 301. (a) Every labor organization which has or

assumes trusteeship over any subordinate labor organiza-

tion shall file with the Secretary within thirty days after

the date of the enactment of this Act or the imposition

of any such trusteeship, and semiannually thereafter, a re-

port, signed by its president and treasurer or corresponding

principal officers, as well as by the trustees of such subordi-

nate labor organization, containing the following informa-

tion: (1) the name and address of the subordinate or-

ganization; (2) the date of establishing the trusteeship;

(3) a detailed statement of the reason or reasons for

establishing or continuing the trusteeship; and (4) the

nature and extent of participation by the membership of

the subordinate organization in the selection of delegates

to represent such organization in regular or special conven-

tions or other policy-determining bodies and in the election

of officers of the labor organization which has assumed

trusteeship over such subordinate organization. The initial

report shall also include a full and complete account of the

financial condition of such subordinate organization as of

the time trusteeship was assumed over it. During the

continuance of a trusteeship the labor organization which

has assumed trusteeship over a subordinate labor organiza-

tion shall file on behalf of the subordinate labor organiza-

tion the annual financial report required by section 201(b)

signed by the president and treasurer or corresponding

principal officers of the labor organization which has as-

sumed such trusteeship and the trustees of the subordinate

labor organization.

74

(b) The provisions of section 201(c), 205, 206, 208,

and 210 shall be applicable to reports filed under this

title.

(c) Any person who willfully violates this section

shall be fined not more than $10,000 or imprisoned for

not more than one year, or both.

(d) Any person who makes a false statement or re-

presentation of a material fact, knowing it to be false,

or who knowingly fails to disclose a material fact, in any

report required under the provisions of this section or

willfully makes any false entry in or willfully withholds,

conceals, or destroys any documents, books, records, re-

ports, or statements upon which such report is based, shall

be fined not more than $10,000 or imprisoned for not

more than one year, or both.

(e) Each individual required to sign a report under

this section shall be personally responsible for the filing

of such report and for any statement contained therein

which he knows to be false.

Purposes for Which a Trusteeship May Be Established

(29 U.S.C. 462) |

Sec. 302. Trusteeships shall be established and admin-

istered by a labor organization over a subordinate body

only in accordance with the constitution and bylaws of

the organization which has assumed trusteeship over the

subordinate body and for the purpose of correcting corrup-

tion or financial malpractice, assuring the performance

of collective bargaining agreements or other duties of a

bargaining representative, restoring democratic procedures,

or otherwise carrying out the legitimate objects of such

labor organization.

75

Unlawful Acts Relating to Labor Organization Under

Trusteeship

(29 U.S.C. 463)

Sec. 303. (a) During any period when a subordinate

body of a labor organization is in trusteeship, it shall

be unlawful (1) to count the vote of delegates from such

body in any convention or election of officers of the labor

organization unless the delegates have been chosen by

secret ballot in an election in which all the members

in good standing of such subordinate body were eligible

to participate or (2) . to transfer to such organization any

current receipts or other funds of the subordinate body

except the normal per capita tax and assesments payable

by subordinate bodies not in trusteeship: Provided, That

nothing herein contained shall prevent the distribution

of the assets of a labor organization in accordance with

its constitution and bylaws upon the bona fide dissolution

thereof.

(b) Any person who willfully violates this section

shall be fined not more than $10,000 or imprisoned for

not more than one year, or both

Enforcement

(29 U.S.C. 464)

Sec. 304. (a) Upon the written complaint of any

member or subordinate body of a labor organization alleg-

ing that such organization has violated the provisions of

this title (except section 301) the Secretary shall investi-

gate the complaint and if the Secretary finds probable

cause to believe that such violation has occurred and has

not been remedied he shall, without disclosing the identity

of the complainant, bring a civil action in any district

court of the United States having jurisdiction of the labor

76

organization for such relief (including injunctions) as may

be appropriate. Any member or subordinate body of a

labor organization affected by any violation of this title

(except section 301) may bring a civil action in any district

court of the United States having jurisdiction of the labor

organization for such relief (including injunctions) as may

be appropriate.

(b) For the purpose of actions under this section,

district courts of the United States shall be deemed to

have jurisdiction of a labor organization (1) in the district

in which the principal office of such labor organization

is located, or (2) in any district in which its duly authorized

officers or agents are engaged in conducting the affairs

of the trusteeship.

(c) In any proceeding pursuant to this section a trust-

eeship established by a labor organization in conformity

with the procedural requirements of its constitution and

bylaws and authorized or ratified after a fair hearing either

before the executive board or before such other body as

may be provided in accordance with its constitution or

bylaws shall be presumed valid for a period of eighteen

months from the date of its establishment and shall not

be subject to attack during such period except upon clear

and convincing proof that the trusteeship was not estab-

lished or maintained in good faith for a purpose allowable

under section 302. After the expiration of eighteen months

the trusteeship shall be presumed invalid in any such

proceeding and its discontinuance shall be decreed unless

the labor organization shall show by clear and convincing

proof that the continuation of the trusteeship is necessary

for a purpose allowable under section 302. In the latter

event the court may dismiss the complaint or retain juris-

diction of the cause on such conditions and for such period

as it deems appropriate.

77

TITLE V—SAFEGUARDS FOR LABOR ORGANTIZA-

TIONS

Fiduciary Responsibility of Officers of Labor Organizations

(29 U.S.C. 501)

Sec. 501. (a) The officers, agents, shop stewards, and

other representatives of a labor organization occupy posi-

tions of trust in relation to such organization and its mem-

bers as a group. It is, therefore, the duty of each such

person, taking into account the special problems and func-

tions of a labor organization, to hold its money and prop-

erty solely for the benefit of the organization and its

members and to manage, invest, and expend the same

in accordance with its constitution and bylaws and any

resolutions of the governing bodies adopted thereunder,

to refrain from dealing wich such organization as an ad-

verse party or in behalf of an adverse party in any matter

connected with his duties and from holding or acquiring

any pecuniary or personal interest which conflicts with

the interests 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 organization or a general exculpatory

resolution of a governing 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.

(b) When any officer, agent, shop steward, or repre-

sentative of any labor organization is alleged to have vio-

lated the duties declared in subsection (a) and the labor

organization or its governing board or officers refuse or

fail to sue or recover damages or secure an accounting

or other appropriate relief within a reasonable time after

78

being requested to do so by any member of the labor

organization, such member may sue such officer, agent,

shop steward, or representative in any district court of

the United States or in any State court of competent

jurisdiction to recover damages or secure an accounting

or other appropriate relief for the benefit of the labor

organization. No such proceeding shall be brought except

upon leave of the court obtained upon verified application

and for good cause shown which application may be made

ex parte. The trial judge may allot a reasonable part

of the recovery in any action under this subsection to

pay the fees of counsel prosecuting the suit at the instance

of the member of the labor organization and to compensate

such member for any expenses necessarily paid or incurred

by him in connection with the litigation.

(c) Any person who embezzles, steals, or unlawfully

and willfully abstracts or converts to his own use, or

the use of another, any of the moneys, funds, securities,

property, or other assets of a labor organization of which

he is an officer, or by which he is employed, directly

or indirectly, shall be fined not more than $10,000 or

imprisoned for not more than five years, or both.

* = *

Retention of Rights Under Other Federal and State Laws

(29 U.S.C. 523)

Sec. 603. (a) Except as explicitly provided to the

contrary, nothing in this Act shall reduce or limit the

responsibilities of any labor organization or any officer,

agent, shop steward, or other representative of a labor

organization, or of any trust in which a labor organization

is interested, under any other Federal law or under the

laws of any State, and, except as explicitly provided to

the contrary, nothing in this Act shall take away any

79

right or bar any remedy to which members of a labor

organization are entitled under such other Federal law

or law of any State.

(b) Nothing contained in titles I, II, II, IV, V, or

VI of this Act shall be construed to supersede or impair

or otherwise affect the provisions of the Railway Labor

Act, as amended, or any of the obligations, rights, bene-

fits, privileges, or immunities of any carrier, employee,

organization, representative, or person subject thereto; nor

shall anything contained in said titles (except section 505)

of this Act be construed to confer any rights, privileges,

immunities, or defenses upon employers, or to impair or

otherwise affect the rights of any person under the Na-

tional Labor Relations Act, as amended.

Effect on State Laws

(29 U.S.C. 524)

Sec. 604. Nothing in this Act shall be construed to

impair or diminish the authority of any State to enact

and enforce general criminal laws with respect to robbery,

bribery, extortion, embezzlement, grand larceny, burglary,

arson, violation of narcotics laws, murder, rape, assault

with intent to kill, or assault which inflicts grievous bodily

injury, or conspiracy to commit any of such crimes.

TITLE 18

UNITED STATES CODE ANNOTATED

§ 610. Contributions or expenditures by national

banks, corporations or labor organizations

It is unlawful for any national bank, or any corporation

organized by authority of any law of Congress, to make

80

a contribution or expenditure in connection with any elec-

tion to any political office, or in connection with any

primary election or political convention or caucus held

ts select candidates for any political office, or for any

corporation whatever, or any labor organization to make

a contribution or expenditure in connection with any elec-

tion at which Presidential and Vice Presidential electors

or a Senator or Representative in, or a Delegate or Resident

Commissioner to Congress are to be voted for, or in connec-

tion with any primary election or political convention or

caucus held to select candidates for any of the foregoing

offices, or for any candidate, political committee, or other

person to accept or receive any contribution prohibited

by this section.

Every corporation or labor organization which makes

any contribution or expenditure in violation of this section

shall be fined not more than $5,000; and every officer

or director of any corporation or officer of any labor organ-

ization, who consents to any contribution or expenditure

by the corporation or labor organization, as the case may

be, and any person who accepts or receives any contribu-

tion, in violation of this section, shall be fined not more

than $1,000 or imprisoned not more than one year, or

both; and if the violation was willful, shall be fined not

more than $10,000 or imprisoned not more than two years,

or both.

For the purposes of this section “labor organization”

means any organization of any kind, or any agency or

employee representation committee or plan, in which em-

ployees participate and which exist for the purpose, in

whole or in part, of dealing with employers concerning

grievances, labor disputes, wages, rates of pay, hours of

employment, or conditions of work.

81

As used in this section, the phrase “contribution or

expenditure” shall include any direct or indirect payment,

distribution, loan, advance, deposit, or gift of money, or

any services, or anything of value (except a loan of money

by a national or State bank made in accordance with

the applicable banking laws and regulations and in the

ordinary course of business) to any candidate, campaign

committee, or political party or organization, in connection

with any election to any of the offices referred to in

this section; but shall not include communications by a

corporation to its stockholders and their families or by

a labor organization to its members and their families

on any subject; nonpartisan registration and get-out-the-

vote campaigns by a corporation aimed at its stockholders

and their families, or by a labor organization aimed at

its members and their families; the establishment, admin-

istration, and solicitation of contributions to a separate

segregated fund to be utilized for political purposes by

a corporation or labor organization: Provided, That it

shall be unlawful for such a fund to make a contribution

or expenditure by utilizing money or anything of value

secured by physical force, job discrimination, financial re-

prisals, or the threat of force, job discrimination, or finan-

cial reprisal; or by dues, fees, or other monies required

as a condition of membership in a labor organization or

as a condition of employment or by monies obtained in

any commercial transaction.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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