Appendix — International Union of Operating Engineers, Local 406 v. Guidry

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Supreme Court of the United States

OCTOBER TERM, 1989

INTERNATIONAL UNION OF OPERATING

ENGINEERS, LOCAL 406, ET AL..,

Petitioners

VERSUS

ROBERT GUIDRY

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX

Jerry L. Gardner, Jr.*

Robert H. Urann

William Lurye

GARDNER, ROBEIN &

URANN, P.L.C.

2540 Severn Avenue, Suite 400

Metairie, Louisiana 70002

(504) 885-9994

Counsel for Petitioners

*Counsel of Record

January 26, 1990

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

TABLE OF CONTENTS

APPENDIX A ..

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E..

A-l

APPENDIX A

Robert Guidry,

Plaintiff-Appellee,

Vv.

INTERNATIONAL UNION OF OPERATING

ENGINEERS, LOCAL 406, et al.

Defendants-Appellants,

Cross-Appellees.

No. 87-4733.

United States Court of Appeals,

Fifth Circuit.

Aug. 29, 1989.

Union members brought action against union and its

official for denial of rights guaranteed by Labor Manage-

ment Reporting and Disclosure Act and for breach of

union’s duty of fair representation. The United States

District Court for the Western District of Louisiana, Lake

Charles Division, Earl E. Veron, J., 669 F.Supp. 763,

entered judgment for plaintiffs, and defendants appealed

as to one union member. The Court of Appeals, King, Cir-

cuit Judge, held that: (1) district court’s finding that

manipulation of hiring hall procedure was for

discriminatory intent was not clearly erroneous; (2)

manipulation of hiring hall procdedure constituted

“‘discipline’’ within meaning of Labor Management Repor-

ting and Disclosure Act; and (3) remand for determination

of damages under correct statute of limitations was

required.

Affirmed in part, vacated in part and remanded.

A-2

Appeals from the United States District Court for

the Western District of Louisiara.

Before RUBIN, GARZA and KING, Circuit Judges.

KING, Circuit Judge:

The plaintiff-appellee, Robert Guidry sued the

defendants-appellants, the International Union of

Operating Engineers, Local 406 and former and current

Union leaders alleging denial of rights guaranteed by 29

U.S.C. sec. 411(a) (1985), unlawful discipline in violation of

29 U.S.C. sec. 529 (1985), and breach of the duty of fair

representation. The United States District Court for the

Western District of Louisiana found in favor of the

plaintiff.! The court awarded damages for lost wages, emo-

tional distress, punitive damages and attorney's fees and

ordered that Guidry be reinstated to Union membership.

We affirm the judgment of liability, but we remand the

award of damages for further findings.

I. FACTS

The facts, as found by the district court, are sum-

marized as follows:

A. Background and Players

Plaintiff-appellee Robert Guidry (‘‘Guidry’’) became

a member of the International Union of Operating

Engineers, Local 406 (the ‘Union"’) in 1949. The Union is a

1 The district court held trial on five related cases simultaneously and

found for the plaintiff in each of the cases. Taliaferro v. Schiro, 669

F.Supp. 763 (W.D.La.1987). The defendants appeal the judgment in this

case only.

A-3

constituent division of the International Union of

Operating Engineers and is an unincorporated labor

organization with six districts in the state of Louisiana.

There is an office within each district, and the statewide

central office is in New Orleans.

The Union elects a statewide Business Manager and

Financial Secretary who works out of the central New

Orleans Office. Defendant Peter Babin III (‘‘Babin’’) has

served in this position since 1976. The Business Manager

negotiates collective bargaining agreements in Louisiana,

serves on a committee that negotiates the National Pipe

Line Agreement, acts as a trustee of the Union’s Health

and Welfare Fund, and appoints and supervises assistant

business managers in the various districts who oversee the

day-to-day functioning of the Union. These assistant

business managers are also known as “business agents”

(“BAs"’) and they represent the Union at prejob con-

ferences, administer the hiring hall procedures, and appoint

union stewards and master mechanics to act as represen-

tatives for the Union on the job.

Babin's predecessor as Business Manager appointed

defendant Willard Carlock, Sr. (‘‘Carlock’’) as BA for the

Union's Lake Charles District. After he took office, Babin

retained Carlock as BA until Carlock and his administra-

tion of the district came under criminal investigation.

Babin fired Carlock on March 10, 1984. Taliaferro v. Schiro,

669 F.Supp. 763, 766 (W.D.La. 1987).

Babin appointed defendant Columbus J. Laird

(‘‘Laird’’) as BA for the Lake Charles District in 1978.

Laird technically had as much authority as Carlock, but he

considered Carlock his boss and followed Carlock’s instruc-

cions. Laird was in office until January 15, 1985 when he

resigned after an indictment was brought against

A-4

him, Carlock, and others. /d.

Babin appointed Don Schiro (‘‘Schiro”’) to be

statewide Pipe Line Business Agent in March 1980. Schiro

represented the Union in pipeline construction jobs con-

trolled by the National Pipe Line Agreement and was

responsible for attending pre-job conferences and appoin-

ting stewards and referring workers to pipeline jobs.

However, Schiro generally left these deatails to BAs such

as Carlock and Laird. /d.

The district court found that Babin’s supervision of

the BAs was ‘totally inadequate.’ 669 F.Supp. at 775-76.

Upon appointing a BA, Babin instructed him to run the hir-

ing hall on a non-discriminatory basis, but otherwise did

very little to supervise. He met with each BA semi-

annually to discuss local problems. He had no formal

evaluation procedure, but instead relied on his own re-

election as evidence that Union members were satisfied

with the performances of the BAs from their districts. Jd.

at 765.

B. The Lake Charles District Hiring Hall

1) Generally

The Union, as the exclusive collective bargaining

agent for operating engineers in its jurisdiction, signed two

major collective bargaining agreements. The first agree-

ment is between the Union and the Lake Charles District,

Associated General Contractors of Louisiana, Inc. and

governs the building and construction industry (the

‘Building Trades Agreement’’). The National Pipe Line

Agreement covers all transportation mainline pipeline and

underground cable work. Both agreements specify that the

Union will provide labor through an exclusive hiring hall.

A-5

The method for registering applicants for referral is set out

in the agreements and involves placing individuals in four

groups according to their work experience. The Union has

always disregarded this rule and it has, instead, grouped

workers together, keeping only a separate group for oilers.

The hiring hall maintains two separate lists for building

trades projects and pipeline projects, and, since March

1984, a worker can keep his or her name on only one list at

a time. Both lists contain names in the order in which the

applicant notifies the Union that he or she is available for

work.

2) Departures from the Hiring Hall Procedure

Both Agreements allow the contractor to hire some

of its employees on any given job outside the structure of

the hiring hall. The Building Trades Agreement allows the

contractor to hire key personnel directly and to recall any

worker who has been employed by that contractor for a

least six of the previous twelve months. The National Pipe

Line Agreement allows the contractor to hire half its

workforce from a group of “regular employees.”’ Regular

employees have either been employed by the contractor in

the prior six months or are customarily employed by that

contractor whenever it has work. Jd. at 767.

Additionally, the Union has developed informal

departures from the regular hiring hall procedure of offer-

ing a referral to the first applicant on the list. The first of .

these exceptions is based on the fact that the Union can, ac-

cording to the agreements, name stewards to pipeline pro-

jects and master mechanics to building trades jobs to act

as Union representatives. The procedure for such appoint-

ment under the agreements is ic name an individual from

among the Union members already referred to the job.

Carlock, Laird, and Schiro departed from this rule by nam-

A-6

ing stewards and master mechanics to jobs, regardless of

their positions on the list. Schiro sometimes appointed in-

dividuals who were not yet even on the list to steward posi-

tions when the job they were working on at the time was

nearing completion. /d.at 768.

Short-term jobs, which are expected to last one to

three days, also were treated as exceptions to the hiring

hall procedure. Referrals for these jobs were simply given

to those applicants who were present at the Union hall at

the time the referral was received, irrespective of the ap-

plicants’ places on the list. Union leadership made a similar

exception for temporary replacements of workers who were

incapacitated or could not otherwise perform their jobs. Jd.

at 768.

Finally, the Union's collective bargaining agreement

with Dolphin Construction Company required that the

Union refer residents of Ailen Parish to its construction

project there. Allen parish residents, therefore, received

referrals to those jobs before non-residents whose names

were higher on the list.

3) Manipulation of the Hiring Hall Procedures and

the Exceptions

The district court found that Carlock ‘‘exploited[ed]

and, at times, disregard[ed] entirely the hiring hall pro-

cedures to enrich his confederates to the detriment of the

plaintiff and others.”’ Jd. at 769. The district court went on

to explain specifically the various ways in which Carlock

accomplished this: (1} appointing his confederates as

stewards or master mechanics irrespective of their skills or

their places on the list; (2) abusing the short-term referral

exception to designate some jobs as short-term that he

knew to be substantially longer than three days; (3) allow-

A-7

ing contractors to employ as ‘‘regular employees’’ workers

who did not meet the requirements of that group as outlin-

ed in the National Pipe Line Agreement; (4) designating a

referral as a recall under the Building Trades Agreement

regardless of the individual's eligibility for recall. Jd. at

769.

The district court found that Carlock quelled opposi-

tion by means of ‘intimidation and threats of retaliation in

the form of economic discrimination and physical injury.”

Id. Also, the court found that Union members feared

voting against Carlock because the balloting was not secret

and they feared retaliation. Jd. Finally, the court noted that

Carlock made it difficult for disgruntled or suspicious

workers to check their positions on the out-of-work list by

keeping possession of, or control over, that list. Jd. at

769-70.

II. PROCEDURAL BACKGROUND

After a bench trial, the district court held in favor of

the plaintiffs. The court awarded Guidry—who is the only

plaintiff against whom this appeal is brought—lost wages

totaling $5,310.50, $20,0C0 for emotional distress, $10,000

in punitive damages. The court also awarded attorneys’

fees in an amount to be agreed to by the parties, or in

default of that, to be set by the court. All of the above

awarded damages were to be paid by the Union. The court

also ordered the reinstatement of Guidry as a Union

member. Additionally, the court awarded Guidry $1000 in

punitive damages to be paid by Babin. The defendants

timely appealed the judgment of the district court, asser-

ting that Guidry failed to prove liability and that the

damage awards are improper or excessive. Guidry cross-

appeals the amount of damages awarded for emotional

distress, lost wages, and punitive damages—arguing that

they are inadequate.

III. THE QUESTIONS OF LIABILITY

The Union, Carlock, Babin, Schiro, and Laird (collec-

tively the ‘‘defendants’’) argue on appeal that the district

court erred in holding them liable under the Labor-

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

secs. 401-531 (1985 and Supp.1986) (““LMRDA’”’). The

defendants also challenge the district court’s conclusion

that Union hiring hall procedures violated the duty of fair

representation under the Labor Management Relations

Act sec. 9(a), 29 U.S.C. sec. 159(a) (1973) (““LMRA’’). Fur-

ther, the defendants argue that Guidry failed to exhaust

his internal union remedies, and therefore, his case should

have been dismissed.

A. The LMRDA Claim

Guidry argued below, and the district court found,

that his rights under sections 10l1(a)(1), (2) of the

LMRDA had been abridged, 29 U.S.C. secs. 411(a)(1), (2)

and that he had been wrongfully disciplined under

sections 101(a)\(5) and 609, 29 U.S.C. secs. 411(a)(5)*

2 Sections 411(a)(1), (2), and (5) read as follows:

(1) Equal Rights

Every member of a labor organization shall have equal rights and

privileges within such an organization to nominate candidates, to vote

in elections or referendums of the labor organization, to attend member-

ship meetings and to participate in the deliberations and voting upon

the business of such meetings, subject to reasonable rules and regula-

tions in such organizations’ constitution and bylaws.

(2) Freedom of Speech and Assembly

Every member of any labor organization shall have the right to meet

and assemble freely with other members; and to express any views,

A-9

and 529.2 The court concluded that the defendants’

manipulation of the hiring hall procedures to the detriment

of Ghidry and the other plaintiffs constituted violations of

these provisions. It also concluded that Guidry’s expulsion

from the Union was violative of the LMRDA. The defen-

dants assert that the evidence presented at trial does not

support this portion of the verdict and that, therefore, the

district court’s factfinding is clearly erroneous for two

reasons: (1) that there was no evidence to support the con-

clusion that Guidry exercised rights guaranteed him by the

LMRDA and (2) that there was no evidence to support the

conclusion that the Union acted to retaliate against Guidry

Footnote 2 continued.

arguments, or opinions: and to express at meetings of the labor

organization his views, upon candidates in an election of the labor

organization or upon any business properly before the meeting, subject

to the organization's established and reasonable rules pertaining to the

conduct of meetings: Provided, That nothing herein shall be construed

to impair the right of a labor organization to adopt and enforce

reasonable rules as to the responsibility of every member toward the

organization as an institution and to his refraining from conduct that

would interfere with its performance of its legal or contractual

obligations.

(5) Safeguards Against Improper Disciplinary Action

No member of any labor organization may be fined, suspended, expell-

ed, or otherwise disciplined except for nonpayment of dues by such

organizataion or by any officer thereof unless such member has been (A)

served with written specific charges; (B) given a reasonable time to

prepare his defense; (C) afforded a full and fair hearing.

Section 101, 29 U.S.C. Sec. 411, is often referred to as the union

members’ ‘‘Bill of Rights.”

3 Section 529 (‘Prohibition on certain discipline by labor organization’’)

reads as follows:

It shall be unlawful for any labor organization or any officer, agent,

shop steward, or other representative of a labor organization, or any

employee thereof to fine, suspend, expel, or otherwise discipline any of

its members for exercising any right to which he is entitled under the

provisions of this chapter. The provisions of section 412 of this title shall

be applicable in the enforcement of this section.

A-10

for having exercised those rights. Additionally, the defen-

dants argue that even if the evidence supports the district

court's underlying fact findings, its legal conclusion that

the manipulation of hiring hall procedures constitutes

‘‘discipline’’ within the meaning of the statutes is er-

roneous. We address these arguments in order.

1) Did-Guidry Oppose Union Leadership?

The district court found that ‘“‘Guidry [had] a long

history of opposing incumbent Union officers.’’ 669

F.Supp. at 772. The defendants challenge this finding as

clearly erroneous and unsupported by the evidence and

assert that Guidry failed to show either that he actually op-

posed Union leadership or that his opposition of that

leadership was known. They characterize the evidence as

demonstrating that Guidry opposed the Union leadership

only until 1972,4 and as failing to show—aside from

Guidry’s own testimony that he had opposed every ad-

ministration since 1956—that his opposition continued

beyond 1972. The defendants cite Chapa v. Local 18, 737

F.2d 929, 932 (11th Cir.1984), for the proposition that a

plaintiff's ‘‘bald assertion’ that he opposed union leader-

ship and that the union retaliated is insufficient to support

a verdict for the plaintiff on an LMRDA wrongful

discipline claim.

We begin by noting that the defendants are urging

us to review the district court’s factfinding. Our review is

limited by Federal-Rule of Civil Procedure 52(a), which pro-

vides that we may not set aside such findings unless ‘‘clear-

ly erroneous.” This standard of review has been interpreted

4 It is clear from the evidence that the last time Guidry ran for Union

office was in 1972.

to mean:

[that] [iJf the district court’s account of the

evidence is plausible in light of the record viewed

in its entirety, the court of appeals may not

reverse it even though convinced that had it been

sitting as the trier of fact, it would have weighed

the evidence differently. Where there are two per-

missible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.

Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct.

1504, 1511, 84 L.Ed.2d 518 (1985). Applying this standard,

we conclude that the district court’s factfinding is not

clearly erroneous. The defendants’ characterization of the

record is incomplete. Far from simply containing Guidry’s

conclusory assertions that he generally opposed Union

management. the record contains Guidry’s specific

testimony of particular instances of his opposition to the

Union.

Guidry described in detail the circumstances of his

decision in 1979 to go to the Federal Bureau of Investiga-

tion (““FBI’’) with evidence of Union corruption. Guidry

made that decision after discussing his position with fellow

Union members. Guidry testified that when Carlock and

Laird discovered that he had gone to the FBI, they came

on the job site at which Guidry was employed as master

mechanic and sought to force his employer to discharge

him. Guidry ultimately filed charges against Carlock and

the Union's executive board. Although these events occur-

red outside the one-year prescriptive period applicable to

Guidry’s LMRDA claim, see infra at section IV.A, they are

not too remote in time to have been found by the district

court to have triggered Union retaliation.

A-12

Guidry’s testimony is replete with examples of

challenges he levelled against the Union leadership's opera-

tion of the hiring hall. These include a challenge to the hir-

ing methods on a job for which he was asked to steward—

Guidry openly complained that men who had never worked

for the company before were hired as “regular employees.”

Guidry also challenged the hiring hall when he discovered

that his name had been left off the out-of-work list as a

result of a new rule that required him to choose be-

tween the building trades and the pipeline lists.

According to Guidry’s testimony, as well as that of

Union members, Guidry’s opposition to the Union leader-

ship was hardly a secret. Charles Lovett, a member of the

Union who was called to testify for the plaintiffs, noted

that Guidry had been ‘‘bucking the system’’ at the Union

for twenty-five years and had gained nothing.

[1] The Union challenges this testimony as inade-

quate because it fails to show that Guidry either sought a

Union office after 1972 or openly campaigned against the

Union leadership in an election after 1972. The defendants

argue that all of Guidry’s political activity in the Union is

too remote in time to support a claim of retaliation occurr-

ing in 1980-83. The flaw in the defendants’ argument is

their assumption that in order to assert a violation of sec-

tion 101(a)(2) of the LMRDA, a plaintiff must show that he

or she spoke out in opposition to Union leadership in the

context of an election. We read the statute to contain a

much broader protection of speech.

The statute itself speaks of the right of every union

member to ‘‘express any views, arguments or opinions,’ 29

U.S.C. sec. 411(a)(2), supra n. 2, and does not limit such ex-

pression to one occurring in the context of a union election.

In fact, the statute refers separately to a union member's

A-13

right to express his views upon candidates running for

union office. Jd.

The Supreme Court has characterized the LMRDA

as ‘‘the product of congressional concern with widespread

abuses of power by union leadership.”’ Finnegan v. Leu, 456

U.S. 431, 435, 102 S.Ct. 1867, 1870, 72 L.Ed.2d 239 (1982).

The ‘‘Bill of Rights” portion of that legislation was ‘‘aimed

at enlarged protection for members of unions paralleling

certain rights guaranteed by the Federal Constitution.” Jd.

at 435, 102 S.Ct. at 1870. Congress ‘recognized that

democracy would be assured only if union members are free

to discuss union policies and criticize the leadership

without fear of reprisal.’’ Sheet Metal Workers’ Intern.

Ass'n v. Lynn, U.S.___,___, 109 S.Ct. 639, 645, 102

L.Ed.2d 700 (1989) (quoting United Steelworkers of Am. v.

Sadlowski, 457 U.S. 102, 112, 102 S.Ct. 2339, 2346, 72

L.Ed.2d 707 (1982).

[2] The defendants do not cite, nor have we found,

any cases that limit the free speech rights protected by the

LMRDA’s Bill of Rights to speech relating directly to an

election within the union. While we agree with the defen-

dants’ position that the evidence adduced at trial does not

support the conclusion that Guidry formally opposed

Union leadership after 1972 in the context of a Union elec-

tion, we conclude that the district court was not clearly er-

roneous in its finding that Guidry openly opposed Union

leadership at least up to the time that he filed this suit.

2) Did the Union Act to Retaliate Against Guidry for

exercising Free Speech Rights?

[3] The district court found generally that hiring hall

procedures were abused and threats of retaliation in the

form of economic and physical injury were used to control

A-14

Union members and to enrich those members who sup-

ported the leadership. 669 F.Supp. at 769. The court also

enumerated the instances of such reprisals that specifically

related to Guidry. In addition to discrimination in the hir-

ing hall, the district court found that the Union retaliated

against Guidry for his opposition to leadership by denying

him a gold Union membership card recognizing his thirty

vears of service. Also, the district court found that Union

economic pressure forced Guidry to violate Union rules and

cross a picket line. The court found that when Guidry faced

charges for having crossed the picket line, Laird telephoned

supporters of the leadership to ensure that they would at-

tend the meeting at which the membership was to vote on

Guidry’s fate—thus, making his expulsion almost certain.

The defendants challenge these factfindings as clear-

lv erroneous. They argue that even if Guidry did show that

he had been discriminated against in hiring hall referrals,

he failed to show that such discrimination was connected to

his exercise of rights protected under the LMRDA. They

argue that the other union acts found by the district court

to have been discriminatory were justified by long-

standing Union rules.

The record contains abundant evidence, both in the

form of testimony and documentation, of the procedures

followed by Union leadership in referring applicants to jobs

through the hiring hall. The court found twenty-one

specific instances in which Union leadership manipulated

the hiring hall procedure by employing one of the means

outlined above. This resulted in direct harm to Guidry. See

Taliaferro, 669 F.Supp. at 781-86 (Appendix). The district

court concluded that each improper referral had been used

to penalize Guidry (and the other plaintiffs) for their

A-15

refusal to support the defendants. Jd. at 776.° We do not

find clear error in this conclusion.

The defendants argue that Guidry failed to show in

each case of hiring hall discrimination that the intent of

Union leadership was discriminatory. We disagree. Guidry

(and the other plaintiffs) provided substantial evidence,

particularly in the testimony of Laird, of the attitude of

Carlock toward those members who had “voted wrong”’ in

prior elections, and of the control Carlock exercised over

the out-of-work list. This evidence, coupled with the clear

evidence of Guidry’s dissent from Union leadership, is suf-

ficient to support a conclusion that the discrimination was

intentional. Even though the evidence is largely cir-

cumstantial, it is sufficient to support the verdict. See

Vandeventer v. Local 513 of Int'l Union of Op. Eng., 579

F.2d 1373, 1380 (8th Cir.) (holding that primarily cir-

cumstantial evidence was sufficient to support verdict that

union had taken retaliatory action.), cert. denied, 439 U.S.

984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978).

Additionally, the plaintiffs introduced testimony

and exhibits regarding the specifics of each wrongful refer-

ral found by the district court. After reviewing the

evidence supporting each of the t-venty-one wrongful refer-

rals, which involved jumping over Guidry’s name on the

° The district court also concluded that each improper refusal con-

stituted a breach of the duty of fair representation under 29 U.S.C. sec.

159(a). 669 F.Supp. at 775-76. The defendants dispute this conclusion.

solely on the gound that the evidence is insufficient to support the fact-

finding that intentional discrimination in hiring hall referrals had occur-

red. We therefore conflate their argumei.ts under the LMRDA and the

duty of fair representation to the extent they concern the sufficiency of

the evidence. That is, we address only once the issue of whether the find-

ing that the operation of the hiring hall was intentionally discriminatory

was clearly erroneous.

A-16

out-of-work list, this court is convinced that the district

court's factfinding is correct and supported by substantial

evidence. We, therefore, do not disturb the district court's

conclusion that discrimination in the hiring hall referrals

took place and was used in retaliation for Guidry’s failure

to support Union leadership.

3) Does the Manipulation of Hiring Hall Procedures

Constitute Discipline within the Meaning of sec-

tions 101(a5) and 609 of the LMRDA?

[4] The defendants challenge the district court's

holding that the wrongful hiring hall referrals constitute

‘discipline’ within the meaning of sections 101(a)(5) and

609 of the LMRDA, 29 U.S.C. secs. 411(a)(5) and 529. they

argue that according to Finnegan v. Leu, supra, the term

‘discipline’ in section 609 refers to actions taken by the

union that diminish the membership rights of a union

member. Hiring hall discrimination does not qualify, accor-

ding to the defendants, because hiring hall referrrals must

be made available to non-union members. United Ass'n of

Journeymen, Local 198 v. NLRA, 747 F.2d 326 (5th

Cir.1984); National Labor Relations Act, sec. 8(b)(1)(A),

(b)(2), 29 U.S.C. sec. 158(b)(1)A), (b)(2).

The issue presented here—whether proof that a

union has retaliated against one of its members for his exer-

cise of a right protected under section 101 of the LMRDA

constitutes ‘‘discipline‘‘ within the meaning of section 609

of that act—has been addressed by a number of courts with

apparently contradictory results. We conclude, however,

that the cases can be harmonized, and we hold that under

the facts presented here, Guidry has made out a proper

claim for wrongful discipline in violation of the LMRDA.

A-17

In Miller v. Holden, we held:

Union action which adversely affects a member is

‘discipline’ only when (1) it is undertaken under

color of the union’s right to control the member’s

conduct in order to protect the interests of the

union or its membership, and (2) it directly

penalizes him in a way which separates him from

comparable members in good standing.

535 F.2d 912, 915 (5th Cir.1976). We decided that the claim

brought in Miller—that the plaintiff's discharge from his

employment by a trust established by, but separate from,

his union—did not state a cause of action under the

LMRDA because the discharge did not constitute

“discipline” under the statute. In determining the meaning

of discipline we looked first to the statute and its

legislative history, id. at 914 n. 5 (citing 1 Legislative

History of LMRDA of 1959), 338, 516, 619, 687, 858

(NLRB ed. 1959)), but concluded that neither was

enlightening on the issue. We, therefore, applied the prin-

cipal of statutory construction of ejusdem generis and con-

strued the general term discipline to conform to the essen-

tial character of the three specific types of discipline listed

in the statute: fine, expulsion, and suspension. Jd. at

914-15. Our result required, as quoted above, that the

union action separate the plaintiff from other union mem-

bers in good standing to constitute discipline.

We followed the holding in Miller to find that

manipulation of hiring hall referrals to the detriment of the

plaintiff constituted discipline within the meaning of

LMRDA in Keene v. International Union of Op. Eng. Local

624, 569 F.2d 1375 (5th Cir. 1978). In that case, the plaintiff

had unsuccessfully run for union office. He showed that

after his loss in the election he received virtually no refer-

rals through the union’s hiring hall and that over two hun-

A-18

dred people with less priority on the out-of-work list receiv-

ed referrals in preference to him. We held that a jury could

reasonably conclude that such discrimination is referrals

constituted discipline for exercising rights protected under

the LMRDA.

The question, however, is not so easily resolved. The

Supreme Court addressed the issue of what constitutes

‘discipline’ under section 609 of the LMEDA in a different

but related, context in Finnegan v. Leu, supra. In that case,

the plaintiffs sued under the LMRDA after they were

discharged from their employment as union business

agents following the election of Leu as president of the

union. The plaintiffs had openly supported Leu’s rival, the

incumbent president, in the campaign. At trial, Leu ex-

plained that he had discharged the plaintiffs because he felt

that they were loyal to the incumbent and would be unable

to implement his policies. The Court held that the term

discipline in section 609 ‘‘refers only to retaliatory actions

that affect a union member’s rights or status as a member

of the union.”’ 456 U.S. at 437, 102 S.Ct. at 1871 (emphasis

added). It concluded that the discharge of the plaintiffs

from their appointive union positions was not within the

scope of ‘‘other discipline’ contemplated by section 609.

Id. at 439, 102 S.Ct. at 1872.6 The Court reasoned that the

6 The Court went on to address the question of whether section 102 of

the LMRDA, 29 U.S.C. sec. 412, provided independent authority for the

suit. Section 102 provides that:

Any person whose rights secured by the provisions of

this subchapter have been infringed by any violation of

this subchapter may bring a civil action in a district

court of the United States for such relief (including in-

junctions) as may be appropriate.

A-19

the LMRDA was intended to protect rank-and-file union

members, rather than union officers or employees.

Therefore, while the plaintiffs’ right to campaign against a

candidate for union president was protected, such cam-

paigning did not immunize them from discharge at the

pleasure of the new president from their jobs as union

employees.

In cases not involving the loss of employment within

the union itself, an apparent conflict in interpreting Fin-

negan has arisen in the cases. In Hackenburg v. Interna-

tional Bhd. of Boilermakers, Local 101, 694 F.2d 1237 (10th

Cir. 1982), the court followed Finnegan to hold that union

members who were ‘“‘benched’’—that is they received no

referrals—following a wildcat strike had not been ‘‘other-

wise disciplined’’ within the meaning of the LMRDA.

Footnote 6 continued.

The. Court noted that the intended relationship between this provision

and section 609 was ‘‘not entirely clear,’’ 456 U.S. at 439, 102 S.Ct. at

1872, but indicated that a litigant could maintain an action under sec-

tion 102 without necessarily stating a violation of section 609. However,

it concluded that in the circumstances before it no “rights secured’”’ by

the subchapter had been infringed, holding that whatever limits the sub-

chapter placed on the union’s authority to use dismissal to suppress dis-

sent, it did not restrict union leaders from choosing a staff with views

compatible with their own. Jd. at 440-41, 102 S.Ct. at 1872-73. In Sheet

Metal Workers’ Inter. Ass'n v. Lynn, US. , 109 S.Ct. 639, 102

L.Ed.2d 700 (1989), the Court recently limited this portion of the holding

in Finnegan to cases in which the union employment was appointive,

rather than elective. The Court reasoned in Lynn that when an elective

official is removed from his post, the union members are denied their

chosen representative, and the chilling effect on free speech is more

widespread. Jd. 109 S.Ct. at 645.

Because we find that a violation of section 609 has occurred here, it

is clear that this suit could also be maintained under section 102. That

does not, however, affect the result here.

A-20

In Hackenburg, the union, following the terms of its

collective bargaining agreement with an employer, depriv-

ed the plaintiffs of any job assignments for ninety days as

a result of their involvement in a wildcat strike. The plain-

tiffs sued, arguing that they had been ‘‘otherwise disciplin-

ed’’ within section 101(a)(5), withou€ the procedural protec-

tions afforded by that section. The court determined that

the ‘‘sanctions imposed were employment related rather

than internal union related,’ 694 F.2d at 1240, and, relying

on Finnegan, held that the procedural safeguards of section

101(a)(5) were not available because the punishment was

not related to the union members’ rights or status as

members. Jd. at 1239.

Turner v. Local Lodge #455 of the Int'l Bhd. of

Boilermakers, 755 F.2d 866 (11th Cir.1985), involves cir-

cumstances very similar to those in Hackenburg. The plain-

tiffs in Turner also suffered a ninety-day benching pur-

suant to the terms of a collective bargaining agreement as

a result of their refusal to cross an illegal picket line. The

court first noted that the plaintiffs’ contention that the

benching had actually occurred in retaliation for their exer-

cise of rights protected by section 101(a)(1) and (2) of the

LMRDA had been properly taken away from the jury

because of the lack of evidentiary support. It then address-

ed the plaintiffs’ contention—which was identical to that in

Hackenburg—that the benching had violated section

101(a)(5) because proper procedures had not been followed

before the union imposed the sanction.

The court considered the broad language in section

101(a)(5) and stated that ‘“‘the sweeping language .. . can-

not be read out of context, but must be taken as backing

and support for union members exercising their ‘Bill of

Rights’ and that any union disciplinary measure unrelated

to the ‘Bill of Rights’ is not covered.”’ Turner, 755 F.2d at

eee -

A-21

869. Therefore, the absence of any claim of retaliation by

the union was fatal to the plaintiffs’ LMRDA claim. The

court then went on to state that under the interpretation of

‘discipline’ found in Finnegan, the benching in the case

before it did not constitute discipline, because it did not af-

fect the plaintiffs’ rights as members of the union in as

much as union membership is not a requirement in order

for one to be carried on the out-of-work list and receive

employment referrals. Id. In concluding, however, the

court noted that ‘‘the case might be different”’ if there had

been evidence of, for example, ‘‘retaliation for exercise of a

protected right.’’ Jd. at 870.

Such a different result was reached by the Sixth Cir-

cuit in Murphy v. International Union of Op. Erg. Local 18,

774 F.2d 114 (6th Cir.1985), cert. denied,475 U.S. 1017, 106

S.Ct. 1201, 89 L.Ed.2d 315 (1986), in which the court found

that a denial of work assignments through a hiring hall to

a union member in retaliation for his opposition of union

leadership could be considered ‘‘discipline’’ within the

meaning of section 101(a)(5). Murphy, 774 F.2d at 122. The

court went on to uphold the district court’s conclusion that

although the union’s actions were not ‘“‘discipline,’’ they

were nevertheless actionable as violative of sections

101(a)(1) and (2). The court distinguished Finnegan on the

ground that the Finnegan court had been concerned with

union employees and the right of a union leader to choose

people to help him run the union. Jd. at 123. The court

stated: ‘‘Plainly, the Supreme Court in Finnegan did not in-

tend to rule out [29 U.S.C.] section 411 as a protection

against manipulative discrimination on behalf of an or-

dinary union member seeking to exercise his right of ex-

pression at union meetings.”’ Jd. The court also distinguish-

ed Turner and Hackenburg simply by noting that the

unions involved in both had acted pursuant to collective

bargaining agreements. Murphy, 774 F.2d at 122 n. 5. The

A-22

court did not address the question of whether the language

in Turner, which states that a refusal to refer a member to

employment does not affect his right as a member, 755

F.2d at 869, precluded a determination that such a refusal

could constitute discipline in any circumstances.

In Moore v. Local 569 of the Int'l Bhd. of Elec.

Workers, 653 F.Supp. 767 (S.D.Cal.1987), the court directly

addressed the problem avoided in Murphy—that Turner

appears to preclude a holding that discriminatory referral

procedures affect union members’ rights as a member of

the union. The court began by analyzing the reasoning in

the problematic dicta from Turner that because non-

members could take advantage of a union hiring hall,

membership rights are not affected by a discriminatory hir-

ing hall. Moore, 653 F.Supp. at 770. The Moore court decid-

ed that this language did not preclude a determination that

membership rights were ever affected by such discrimina-

tion for two reasons. First, the court inferred that in

Turner, the plaintiffs no longer had a right to be referred to

work because of their involvement in wildcat strikes pro-

hibited under the collective bargaining agreement. Jd. Se-

cond, and more importantly, the court reasoned that one of

the rights of a union member was to receive non-

discriminatory referrals from the union hiring hall. The

court concluded that the ability of non-members to place

their names on the out-of-work lists did not diminish and,

in fact, had no relationship to that right. The court,

therefore, rejected the union’s contention in the case before

it that the dicta in Turner regarding the issue of whether

benching could constitute discipline should control. It

found instead that the plaintiffs’ allegations stated a cause

of action under section 609 of the LMRDA. Id. at 770-71.

We agree with the Moore court’s rejection of this

A-23

dicta from Turner in circumstances such as those before us.

It is apparent from the evidence that Guidry’s name was

repeatedly skipped over on the out-of-work lists in retalia-

tion for his out-spoken opposition to Union leadership.

Here, as in Murphy, and as distinguished from Turner and

Hackenburg, there was evidence of a reprisal for exercise of

rights protected under the LMRDA. The Turner court

itself noted that if there is evidence of union retaliation the

case might be different. We also point out that here, as

distinguished from Finnegan, the question involves the

right to fair treatment of a union member by his union. In

Finnegan, the plaintiffs were seeking to retain their

employment by the union, not something to which every

union member is entitled. Here, on the other hand, the

plaintiff simply seeks not to be singled out for unfair treat-

ment by his union. We simply cannot agree with the defen-

dants’ contention that discriminatory administration of

the hiring hall does not represent the kind of discipline

covered by the LMRDA.

B. Exhaustion of Union Remedies.

The defendants challenge the district court’s ruling

on the ground that Guidry failed to exhaust his internal

union remedies, and, as a result, they argue that his suit

should have been dismissed. In his complaint, as well as on

brief to this court, Guidry asserts that pursuit of his inter-

nal union remedies would have been futile, and therefore,

he is not required to exhaust that avenue before filing this

suit. The district court did not directly address this ques-

tion, although it clearly did not find that Guidry’s failure

to exhaust internal union remedies precluded this suit.

Section 101(a)(4) of the LMRDA, 29 U.S.C. sec.

411(a)(4), allows courts in their discretion to require that a

union member exhaust his internal remedies before filing

A-24

suit. See 29 U.S.C. sec. 411(a)(4); Hammons v. Adams, 783

F.2d 597, 603 45th €ir-1986); Chadwick v. International

Bhd. of Elec. Workers, Local 175, 674 F.2d 939

(D.C.Cir.1982).

[5,6] Before a union member may bring suit against

his union for breach of the duty of fair representation under

section 301 of the LMRA, 29 U.S.C. sec 185, the member

must either exhaust union remedies or show an adequate

reason for not doing so. Clayton v. International Union,

451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981). Here

too, courts have discretion to decide whether to require

such exhaustion. Id. at 689, 101 S.Ct. at 2095. Factors rele-

vant to the inquiry of whether to require exhaustion are: (1)

whether union officials are so hostile to the member that he

cannot hope to obtain a fair hearing; (2) whether the union

proceedures are adequate; and (3) whether requiring ex-

haustion would unreasonabaly delay the member in pursu-

ing his rights. Jd. Guidry asserts that the first of these ex-

ceptions is applicable here.

[7,8] The Union Constitution and By-laws, admitted

into evidence in the court below, provide simply that the

local union’s determination of any grievance shall be final

and binding. Neither provides specific grievance pro-

cedures for the type of complaint Guidry asserts. In such

absence of procedural requirements, an employee may pro-

ceed to file suit after pursuing his contractual remedies.

Hammons, 783 F.2d at 602. Additionally, where it is clear,

as here, that because the complaint is directed at those of-

ficials who would hear Guidry’s complaint, the member

should be excused for his failure to exhaust internal

remedies. Hayes v. Brotherhood of Ry. and Airline

Clerks/Allied Servs. Div. 734 F.2d 219 (5th Cir.), cert.

denied, 469 U.S. 935, 105 S.Ct. 336, 83 L.Ed.2d 272 (1984).

A-25

IV. THE DAMAGE AWARDS

A. The Statute of Limitations

[9] The district court, following Local 1397, United

Steelworkers of Am. v. United Steelworkers of Am., 748

F.2d 180 (3d Cir.1984), applied a six-month statute of

limitations to the plaintiffs’ LMRDA claims. It therefore

looked back six months prior to the date of filing of the suit

to determine the amount of damages. After the district

court rendered its decision, and after oral argument on this

case, the Supreme Court overruled Local 1397. Reed v.

United Transp. Union, ___ U.S. ___, 109 S.Ct. 621, 102

L.Ed.2d 665 (1989). The Court held in Reed that, unlike

claims brought under section 301 of the LMRA, see

DelCostello v. International Bhd. of Teamsters, 462 U.S.

151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), claims brought

under section 101(a)(2) of the LMRDA are more akin to

civil rights claims than to unfair labor practice charges.

Therefore, the court reasoned under the rule established in

Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d

254 (1985), the state general or residual personal injury

statute of limitation should apply to actions brought under

section 101(a)(2). Therefore, we look to Louisiana state law

to determine the appropriate statute of limitations for the

LMRDA claims. The claims under section 301 of the

LMRA are, however, still subject to the six-month

limitation.

[10] Article 3492 of the Louisiana Civil Code provides

a one-year limitations period for delictual actions, which in-

clude personal injury actions. La.Civ.Code Ann. art. 3492

(West supp.1989). Therefore, the limitations period that

should be applied to Guidry’s claims under the LMRDA is

OO

A-26

one year.’ Because the damages amount must be based in

part on facts not found by the district court, we must re-

mand the damages portion of this cause for a redetermina-

tion of the amount of damages to be awarded. However, we

can and will address the legal issues raised by the parties

regarding the types of damages awarded.

7A subsidiary issue is whether Reed should be afforded retroactive ef-

fect in this case. We believe that it should.

The general rule is that federal cases should be decided according to

the law existing at the time of the decision. Goodman v. Lukens Steel

Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 577 (1987). In Chevron Oil

Co. v. Huson, 404 U.S. 97, 105-09, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971),

however, the Supreme Court declined to apply retroactively a limita-

tions period that would have time barred a litigant’s lawsuit. The Court

refined a three-part nonretroactivity test: (1) the supervening decision

must establish an unforeseen and unforeshadowed principle of law, as

where the Court has overruled clear circuit precedent on which the

litigants may have relied; (2) the purposes of the substantive law upon

which the limitations period operates would not be served by retroactivi-

ty; and (3) retroactive application would produce inequitable results. /d.

at 106-07, 92 S.Ct. at 355-56. These factors provide no basis for refusing

retroactive application of Reed to this case.

Prior to DelCostello, the established precedent in the Fifth Circuit

specified application of an appropriate state statue of limitations in sec-

tion 101(a)(2) cases. Sewell v. Grand Lodge of Int'l Ass'n of Machinists

& Aerospace Workers, 445 F.2d 545, 548-50 (5th Cir.1971), cert. denied,

404 U.S. 1024, 92 S.Ct. 674, 30 L.Ed.2d 674 (1972) (applying a one-year

Alabama statute of limitations for tort actions). No post-DelCostello

Fifth Circuit decision definitively altered this rule until the district court

below adopted the Third Circuit's Local 1397 interpretation of a six-

month limitations period. Thus, Chevron's first factor clearly is not

satisfied: Fifth Circuit precedent was not overruled by, but in fact sup-

ported, the Reed decision; at most, the limitations issue was unsettled

after DelCostello. Likewise, the remaining two Chevron factors, cannot

be met. Applying Louisiana’s one-year limitations period to determine

damages in this case would further the remedial goals of section

101(a)(2) of the LMRDA without substantially frustrating any federal

policy of repose, and would not be inequitable, as litigants in this Circuit

could not have justifiably relied on a six month limitations period prior

to Reed. See Goodman, 482 U.S. at 662-64, 107 S.Ct. at 2621-22.

A-27

1) Punitive Damages

The district court awarded punitive damages to be

paid both by the Union and Babin, relying on /nternational

Bhd. of Boilermakers v. Braswell, 388 F.2d 193, 199 (5th

Cir.), cert. denied, 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d

854 (1968), and Parker v. Local Union No. 1466, United

Steelworkers of Am. 642 F.2d 104, 106 (5th Cir.1981), for

the proposition that punitive damages may be awarded

under the LMRDA where the union acted with ‘‘actual

malice or reckless or wanton indifference to the rights of

the plaintiff.’’ Braswell, 388 F.2d at 199.”

On appeal, the defendants urge us to overrule this

Circuit’s precedent and rule that punitive damages are

unavailable in LMRDA cases. Alternatively, they argue

that the evidence does not support the finding of malice on

which the punitive damage award depends. We find neither

argument convincing.

As to the first argument, we simply point out that as

a panel of this court, we are not free to overrule the prece-

dent of prior Fifth Circuit cases. Only the en banc court has

the necessary power to do se. National Bank of Commerce

of Dallas v. All American Aseurance Co., 583 F.2d 1295,

1301 (5th Cir.1978). As to the defendants’ second argu-

ment, we point to our discussion supra at parts III A. 1 and

2 of the sufficiency of the evidence. We conclude that the

evidence adduced at trial supports the district court's fin-

ding of malice, and therefore we uphold the court’s decision

to award punitive damages, although, for the reason noted

below, we vacate the amount of the award.

On cross-appeal, Guidry argues that the amount of

punitive damages awarded was insufficient and he seeks

enhancement of the amount to $250,000. The only argu-

A-28

ment Guidry advances for this position asserts essentially

that because the Union can afford more, this award is not

sufficiently punitive. Because we remand this case for a

redetermination of the damage award, we decline to ad-

dress this issue. Because the district court may have been

influenced in its decision on punitive damages by the

amount of actual damages, we vacate the punitive damage

award and leave it to the district court, in its discretion, to

fix once again the amount of punitive damages when the

amount of actual damages has been recomputed.

2) Emotional Distress

[11] The defendants also contest the award of

damages for emotional distress, arguing that because the

plaintiffs failed to present evidence of any physical

manifestations of that distress, such an award is

unavailable under the LMRDA. We agree that emotional

distress ‘‘standing alone does not constitute a sufficient

basis for the awarding of damages under the [LMRDA|].”’

Bise v. International Bhd. of Elec. Workers, Local 1969,

618F.2d 1299 (9th Cir.1979) (quoting International Bhd. of

Boilermakers v. Rafferty, 348 F.2d 307, 315 (9th Cir.1965)),

cert. denied, 449 U.S. 904, 101 S.Ct. 279, 66 L.Ed.2d 136

(1980). In order to protect against spurious claims for emo-

tional distress that might drain union coffers and thereby

deprive other members of effective representation, some

courts have required LMRDA claimants who seek

damages for emotional distress also to adduce some

evidence of actual injury. See id. Other courts do not im-

pose an actual injury requirement. Compare Bise, supra

with Bradford v. Textile Workers of Am., 563 F.2d 1138,

1144 (4th Cir.1977). Whether to impose an actual injury re-

quirement, as well as what such a requirement entails, are

issues of first impression for this Circuit.

A-29

We conclude, as the district court did, that LMRDA

claimants who seek damages for emotional distress must

adduce some evidence of actual injury. The environment in

which LMRDA claims arise—discipline and termination by

both unions and employers—is emotionally charged at the

outset and, thus, one in which claims for emotional distress

are likely to be the rule rather than the exception.

Moreover, the subjective nature of these claims makes it

particularly difficult to dismiss meritless actions at early

stages in the litigation—before the union has gone to con-

siderable expense in defending the action. Hence, we agree

with the Ninth Circuit that an actual injury requirement

should be imposed in order to protect unions in their

representative capacities from malice from within. -

[12] A further issue to be resolved, however, is what

type of evidence will suffice to establish ‘‘actual injury.”’

Despite professed agreement, the two circuit courts that

have addressed this problem construe ‘‘actual injury”’ in

different ways. In Rodonich v. House Wrecker’s Union

Local 95, 817 F.2d 967 (2d Cir.1987), the Second Circuit

upheld the following jury instruction: ‘‘[yjou must find

such mental or emotional distress based upon the par-

ticular plaintiff's physical condition or medical evidence.”’

Id. The Second Circuit then declared that ‘‘[t]he qualifica-

tion that claims of emotional distress_be supported by a

physical manifestation of injuiry is an appropriate

safeguard against the award of excessive and speculative

damages.” Id.; see also Petramale v. Local 17, Laborers’

Int'l Union of North Am., 847 F.2d 1009, 1012 (2d

Cir.1988). The Ninth Circuit, however, construes ‘‘actual

injury’’ more broadly. In Bise and its progeny,® lost

wages, as well as physical manifestations of emotional

8 See, e.g., Bloom v. International Bhd. of Teamsters, 752 F.2d 1312.

1315 (9th Cir. 1984).

A-30

distress, served as sufficient indication of actual injury. In

the case before us, the district court awarded damages for

emotional distress to those plaintiffs who could

demonstrate actual injury through lost wages.

We adopt the Ninth Circuit’s approach. We fail to see

why physical manifestations of injury should be the sole

guarantor of genuineness; financial distress may well be

the most reliable and frequent cause of mental distress.

Moreover, whatever the indicia of actual injury used, plain-

tiffs who seek damages for emotional distress must present

credible evidence of that distress. District courts should

not be hidebound to antiquated notions about the nature of

mental injury and suffering in order to determine whether

an LMRDA claim is genuine. We therefore affirm the

district court’s interpretation of the actual injury require-

ment. We vacate the award, however, for reconsideration

along with the other components of damages to be

awarded.

3) Attorneys’ Fees

[13] The district court awarded to Guidry and the

other plaintiffs ‘‘reasonable’’ attorneys’ fees. The court

looked to Hall v. Cole, 412 U.S. 1, 4-5, 93 S.Ct. 1943,

1945-46, 36 L.Ed.2d 702 (1973) to determine the standards

for an award of reasonable attorneys’ fees. Hall allows an

award of attorneys’ fees to a successful party even in the

absence of statutory or contractual authority when his op-

ponent has acted in bad faith or when his success in the

litigation confers a benefit on members of an ascertainable

class, and where the court’s award of attorneys’ fees will

make it possible to spread the cost of litigation over the

class of beneficiaries of the suit. The court below held that,

in this case, attorneys’ fees were available under both

theories.

A-31

On appeal, the defendants argue that the district

court’s application of these two theories was an error of

law. We agree.

The bad faith exception to the general rule—that ab-

sent contractual or statutory authority, attorneys’ fees are

not recoverable—is set out in detail in Shimman v. Interna-

tional Union of Op. Eng., Local 18,744 F.2d 1226, 1228-34

(6th Cir.1984) (en banc), cert. denied, 469 U.S. 1215, 105

S.Ct. 1191, 84 L.Ed.2d 337 (1985). Shimman makes clear

that the focus of the bad faith inquiry is not the actions

that precipitated the law suit, but rather the manner in

which the litigation itself is carried out. That is, the rule is

intended to penalize the litigant who brings to court a

frivolous suit or defense, or abuses the process so as to

create an inquiry separate from the underlying claim. Jd. at

1231. This court has adopted the same reasoning. See, e.g.,

Batson v. Neal Spelce Assoc., 805 F.2d 546, 550 (5th

Cir.1986).

There is no evidence that the defendants in this case

have either brought a frivolous defense or pursued the

litigation in a vexatious manner. For that reason, we

disagree with the district court’s holding that the bad faith

exception is applicable here.

[14] The common benefit theory is also unavailable to

Guidry. The Shimman court discussed this theory as well.

In Shimman, as in the instant case, the underlying litiga-

tion resulted in a damage award benefitting only the plain-

tiffs personally. The plaintiffs contended in Shimman, as

they do here, that although the money awards do not

benefit the union membership as a whole, an incidental

benefit of the awards—dispelling the chill on free speech

created by union leadership—does inure to the benefit of all

union members. 2

A-32

The court in Shimman explicitly rejected this theory.

744 F.2d at 1235. The court reasoned that the idea of the

common benefit theory is to shift the costs of litigation to

those who would have had to pay if they had brought the

suit. Jd. In Shimman, as here, other members of the union

could not have brought suit to redress the injuries of an in-

dividual union member. Further, an award of attorneys’

fees here would not spread the costs of litigation propor-

tionate to the common benefit. Guidry would have to pay

no more for the cost of litigation than any fellow union

member, but he would receive substantially greater

benefits in the form of cash awards. .

We therefore hold that on remand, the district court

should not include an award of attorneys’ fees in its

damages award.

4) Lost Wages

Guidry argues in his cross-appeal that the amount of

losts wages awarded was inadequate to compensate him.

Once again, we are not in a position to review the district

court’s damage determination because we are remanding

that portion of the holding. We note, however, that the

district court’s method of determining the lost wages

due—comparing Guidry’s actual wages to the average

amount earned by union members during the limitations

period—is a sound and fair method of making that

determination.

7

For all the foregoing reasons, we AFFIRM the judg-

ment as to the defendants’ liability, and we VACATE the

award of damages and REMAND for redetermination of

the proper amount. Costs shall be borne by the defendants.

A-33

APPENDIX B

Howard TALIAFERRO

Vv.

Don SCHIRO, et al.

John CREEL, et ai.

Vv.

INTERNATIONAL UNION OF

OPERATING ENGINEERS,

LOCAL 406, et al.

Robert GUIDRY

v.

INTERNATIONAL UNION OF

OPERATING ENGINEERS,

LOCAL 406, et al.

Jess W. ROWSEY

Ws

INTERNATIONAL UNION OF

OPERATING ENGINEERS,

LOCAL 406, et al.

Vincent REED, et al.

Vv.

INTERNATIONAL UNION OF

OPERATING ENGINEERS,

LOCAL 406, et al.

A-34

Craig E. EDWARDS, et al.

INTERNATIONAL UNION OF

OPERATING ENGINEERS,

LOCAL 406, et al.

Civ.A. Nos. 83-0388-LC, 83-1042-LC,

83-1141-LC, 84-0650-LC, 84-0777-L©

and 84-1005-LC.

United States District Court,

W.D. Louisiana,

Lake Charles Division.

Sept. 9, 1987.

Union members brought action against union and its

officers for denial of rights guaranteed by Labor-

Managements Reporting and Disclosure Act and for

breach of union’s duty of fair representation. The District

Court, Vernon, J., held that: (1) union officers’ manipula-

tion of hiring hall procedures constituted violations of

Labor-Management Reporting and Disclosure Act, as well

as breach of union's duty of fair representation: (2) six-

month statute of limitations was applicable to both causes

of action: and (3) unlawfully discriminated against union

members were entitled to lost wages, damages for mental

suffering, punitive damages, and attorney fees.

Judgment for plaintiffs.

A-35

Maurice Tynes, Levingston, Tynes & Liles, Lake

Charles, La., for all plaintiffs, except Creel, Hatch and

Johnson.

H. Alva Brumfield, III and William P. Brumfield,

Brumfield & Brumfield, Baton Rouge, La. for plaintiffs

Creel, Hatch and Johnson.

Floyd J. Falcon, Jr. and Daniel L. Avant, Avant &

Falcon, Baton Rouge, La., for defendants Don Schiro and

Peter Babin, ITI.

Jerry L. Gardner, Jr., Gardner, Robein & Healey,

Metairie, La. for Int’l. Union of Operating Engineers, Local

406.

Columbus J. Laird, Oakdale, La., for Columbus J.

Laird.

Willard S. Carlock, Sr., Seagoville, Tex., for Willard

S. Carlock, Sr.

OPINION

VERON, District Judge.

The plaintiffs in these related civil actions are all

members or former members of the International Union of

Operating Engineers, Local 406 (‘‘the Union"), seeking

recovery from the Union and its officers for denial of rights

guaranteed by 29 U.S.C.A. § 411(a)(1985) and for breach of

the Union's duty of fair representation. In Civil Action

- Nos. 83-0388 and 83-1141 the plaintiffs also included a

claim for unlawful discipline for exercising those rights in

violation of 29 U.S.C.A. § 529 (1985). Trial was held in the

related cases simultaneously. Having considered the

A-36

evidence presented at trial and the applicable law, as well

as the oral and written arguments of counsel, the court

finds for the plaintiffs and against the defendants for the

reasons assigned below.

FINDINGS OF FACT

A. The Defendants

The Union, a constituent division of the Interna-

tional Union of Operating Engineers, is an unincorporated

statewide labor organization which exists to establish and

maintain collective bargaining agreements with various

contractors in an effort to secure favorable wages, hours,

and working conditions for workers within its jurisdiction.

The Union had almost 6000 members at its peak, but cur-

rently has only about 3200 members. It has six districts

statewide and maintains offices in each district with cen-

tral administrative offices in New Orleans. The Lake

Charles District includes the Parishes of Calcasieu,

Cameron, Jefferson Davis, Beauregard, Allen and part of

Vernon.

Peter Babin, III currently serves as the Business

Manager and Financial Secretary of the Union, having

been first elected to those offices in mid-1976. As Financial

Secretary Babin has the responsibility of collecting union

dues and paying union bills. As Business Manager he

negotiates collective bargaining agreements with contrac-

tors within the state, serves on the committee negotiating

the National Pipeline Agreement, serves as a trustee of the

Union's Health and Welfare Fund, and acts as a delegate

to various conventions, including the AFL-CIO conven-

tion. Babin also appoints assistant business managers (also

known as “‘business agents’’ or ““‘BA’s’’) who operate the

Union on a day-to-day basis in each of the districts.

A-37

Business agents appointed by Babin are authorized

to represent the Union at pre-job conferences with contrac-

tors and in disputes between contractors and the Union or

its members. Business agents have authority to appoint

union stewards and master mechanics who act as union

representatives on the job. Finally, business agents ad-

minister the exclusive job referral system through the hir-

ing hall.

After appointing business agents, Babin testified

that he instructed them to distribute job referrals on a non-

discriminatory basis and to avoid ownership of construc-

tion equipment. After several incidents of labor violence,

Babin circulated to all business agents for their signature

a memorandum informing them the Union would not be

liable for unauthorized activity by business agents or union

members.

Babin did very little to supervise his business

agents, allowing them to run their respective district of-

fices as they saw fit. Babin met with each business agent

twice a year just- before Executive Board meetings to

discuss local problems. He had no formal procedure for

evaluating a business agent’s performance, relying instead

upon the voting results of his bids for re-election. If the

members of a particular district voted to re-elect Babin, he

assumed his business agent for that district performed his

duties satisfactorily. The court finds Babin’s supervision

totally inadequate.

Babin’s predecessor, Jack Fisk, appointed defendant

Willard Carlock, Sr. Business Agent for the Lake Charles

District. When Babin became Business Manager, he retain-

ed Carlock, Sr. In the midst of criminal investigations into

Carlock, Sr.’s administration of the Union’s Lake Charles

District, Babin fired Carlock, Sr. on March 10,

1984.

A-38

Babin appointed defendant Columbus J. (‘‘C.J.’’)

Laird Business Agent for the Lake Charles District in

1978. Although technically he had as much authority as

Carlock, Sr., Laird considered Carlock, Sr. to be his boss

and followed all of Carlock, Sr.’s directions. Laird remained

in office until January 15, 1985, when he resigned after the

government brought an indictment against him, Carlock,

Sr. and others.

In March, 1980 Babin named Don Schiro statewide

Pipe Line Business Agent. Schiro represented the Union in

matters involving pipe line construction projects controll-

ed by the National Pipe Line Agreement. As part of his

duties, Schiro attended pre-job conferences with contrac-

tors on pipe line projects. Although he had ultimate respon-

sibility for appointing stewards and referring operating

engineers to pipe line jobs, Schiro generally left these

details to district business agents like Carlock, Sr. and

Laird.

In 1980 the Union membership elected Schiro as

their President. As President Schiro receives no additional

compensation from the Union (other than his salary as a

business agent). The President’s only duty is to preside

over membership meetings held periodically in the various

districts statewide.

B. Labor Climate in Southwest Louisiana

It is impossible to fully understand this case without

some background knowledge of the environment within

which Carlock, Sr. operated the Lake Charles District of

the Union. Accordingly, upon the plaintiff's request pur-

suant to Fed.R.Evid. 201, the court takes judicial notice of

the following facts generally ‘known within this court’s ter-

ritorial jurisdiction.

A-39

Orgainized labor traditionally has had considerable

political and economic power in Southwest Louisiana. Dur-

ing the OPEC nations’ oil embargo of the 1970's, Loui-

siana’s petroleum industry began to experience rapid

growth which spilled over into other industries and created

a high demand for labor. Local labor leaders used their con-

trol of the labor market to gain power over contractors and

union employees. As labor shortages and the period's infla-

tionary trends caused ever-increasing wages, union

members perceived their local business agents as even

more powerful. Political candidates recognized the con-

siderable influence of business agents and depended upon

their support for success.

Business agents continued to exercise their power

virtually unheeded, creating an environment of labor

unrest characterized by violence and corruption. Confron-

tations between the unions and contractors employing non-

union labor climaxed with the ‘‘Ellender Pridge’’ incident

of May 20, 1975 and the ‘‘Jupiter Chemical” incident of

January 15, 1976. These incidents ‘‘contributed

significantly to an atmosphere of violence and fear for

union contractors and employees.’’ United States v.

Carlock, 806 F.2d 535, 539 (5th cir.1986) cert. denied ___

U.S. __, 107 S.Ct. 1611, 94 L.Ed.2d 796 (1987) and ___

U.S. ___, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987). Carlock,

Sr. and others were indicted, tried, and acquitted in state

court for their alleged roles in the Ellender Bridge incident.

Allegations of corruption within the Union con-

tinued. Eventually a United States Senate Subcommittee

and the Federal Burreau of Investigation (‘‘FBI"’) launched

investigations which led to the grand jury indictment, trial,

and convictions of Carlock, Sr., Laird, and others of

violating and conspiring to violate the Racketeer Influenc-

ed and Corrupt Organization Act, 28 U.S.C.A. §

1962(d)(1984).

A-40

Carlock, Sr. was also convicted of extortion in violation of

the Hobbs Act, 18 U.S.C.A. § 1951 (1984), and of demand-

ing and receiving illegal payments from employers in viola-

tion of the Taft-Hartley Act, 29 U.S.C.A. § 186 (1978). Ad-

ditionally, Laird was convicted of one count of obstruction

of justice.

During Carlock, Sr.’s term as business agent Babin

occasionally received complaints from the union members

concerning improprieties committed by Carlock, Sr. Babin

testified that his investigations into such matters con-

sisted of gathering all relevant facts from the person lodg-

ing the complaint, confronting Carlock, Sr. with the allega-

tions, and receiving Carlock, Sr.’s explanation. Satisfied

with the explanation, Babin would relay it to the complain-

ant. Babin’s “‘investigation”’ of a complaint meant only

communicating with the subject and cause of the com-

plaint. The court finds this totally inadequate.

C. Hiring Hall Procedure

The Union, as the exclusive collective bargaining

agent for operating engineers seeking employment within

its jurisdiction, entered into several collective bargaining

agreements which goven the procedures to be used in

employing operating engineers. An agreement between the

Union and the Lake Charles District, Associated General

Contractors of Louisiana, Inc. governs the building and

construction trades industry (hereinafter referred to as the

‘Building Trades Agreement’’). A second major agree-

ment, the National Pipe Line Agreement, covers all

transportation mainline pipe line and underground cable

work.

Both agreements allow signatory contractors to hire

directly qualified employees in certain circumstances.

A-41

The National Pipe Line Agreement permits contractors to

fill up to approximately half the positions on a project with

“regular employees.’’ ‘“‘Regular employees’’ are those

regularly and customarily employed by the individual con-

tractor whenever he has work or who have been employed

by him sometime during the previous six months, and who,

because of their special knowledge and experience in

pipeline construction work, are considered ‘‘key men.”’

These key men work on the ‘“‘company half.”’

The Building Trades Agreement allows signatory

contractors to recall for employment any operating

engineer that contractor has employed for at least half the

previous twelve months. Contractors signatory to this

agreement may also hire directly key personnel, generally,

limited to foremen.

Laird, Schiro, and Sonny Maon, the current business

agent in the Lake Charles District, never verified that in-

dividuals hired directly by contractors met the contractual

requirements for direct employment, even though an

operating engineer referred through the Union's hiring hall

would replace any prospective employee disqualified from

direct employment.

The Union furnishes all other operating engineers to

pipe line and building trades contractors through an ex-

clusive hiring hall. Both agreements establish a method for

registering and ranking applicants for referral through the

hiring hall. Applicants must be placed into four groups,

each containing operating engineers of roughly equivalent

work experience; however, the Union has always disregard-

ed this rule, organizing the applicants into one group of

journeyman operating engineers (while maintaining a

separate group for oilers). Each district office maintains

out-of-work lists containing names of all applicants in the

A-42

order each notifies the Union he is available for work. The

Union maintains separate lists for building trades projects

and pipe line projects. Since March, 1984, applicants could

only have their names on one of the lists at a time.

When a contractor notifies the Union that it requires

an operating engineer for a specific job, the business agent

must contact qualified applicants for the job until the job

is filled, starting with the first name on the proper out-of-

work list. When contacted an applicant may either accept

or decline a referral. An applicant who accepts a referral

receives a referral slip signed by the business agent and

identifying the contractor, job site, job type, wage rate,

and date and time the applicant is to report. Once the appli-

cant works forty hours, the business agent removes his

name from the out-of-work list.! The applicant bears the

responsibility of notifying the Union that he has worked

over forty hours.

An applicant may decline a referral without penalty

if he feels he is not qualified for the job offered. Under the

provisions of the collective bargaining agreements, the

business agent should move to the bottom of the out-of-

work list the name of any applicant who arbitrarily refuses

to accept a referral; however, Carlock, Sr. and Laird

routinely allowed applicants to turn down shorter job refer-

rals to hold out for longer, more lucrative ones.

The Union established by custom several exceptions

to the general rule that job referrals are offered to ap-

plicants in the order their names appear on the out-of-work

list. These exceptions are in addition to the contractors’

right to hire employees directly under the circumstances

discussed above.

1 For pipe line projects, an operating engineer’s name was removed from

the pipe line out-of-work list after he had worked fifty hours.

A-43

One exception involved referral of stewards to

pipeline projects and master mechanics to building trades

projects. Stewards and master mechanics act as union

representatives at the job site. Frequently they are the peo-

ple actually contacting the union hall for the contractor to

request additional operating engineers, providing descrip-

tions of the type of work to be performed and the expected

duration of the job. On large projects, they must be ver-

satile operators, capable of running several types of equip-

ment, and able to fill in on a temporary basis for any

operator who becomes incapacitated. They must be able to

read and write so they can keep records and must have the

even temperament required to work with management and

resolve disputes which may arise.

Under the collective bargaining agreements, the

Union has the right to designate a steward or master

mechanic from the union members already referred to the

project; however, Carlock, Sr., Laird and Schiro appointed

stewards and master mechanics from individuals named on

the out-of-work list, regardless of their position on the list.

Schiro would sometimes appoint as a pipe line steward an

individual who had a job on another project when the other

project was nearing completion. To appoint as a steward an

individual who is not even available for work when others

are registered on the out-of-work lists clearly violates the

Union’s hiring hall procedure.

A second exception involved the referral of short-

term jobs, i.e., those expected to last one to three days, bas-

ed upon information provided by the contractor (or, fre

quently, the stewa'd or master mechanic) requesting an

operating engineer. By custom Carlock, Sr. and Laird hand-

ed these referrals to applicants present at the hall without

regard to the applicants’ positions on the out-of-work list.

Carlock, Sr. and Laird never consulted the out-of-work lists

A-44

when making these referrals, unless two or more applicants

desired the same referral.

Another exception allowed Carlock, Sr. and Laird to

refer without reference to the out-of-work list a temporary

replacement for any operating engineer who became in-

capacitated or otherwise unable to perform his job.

A final ‘‘exception’’ resulted from a collective

bargaining agreement between the Union and Dolphin Con-

struction Co. which required the Union to refer residents of

Allen Parish to Dolphin’s construction project there. Con-

sequently, Allen Parish residents received referrals to that

contractor ahead of otherwise equally qualified applicants

living outside that parish whose names were higher on the

out-of-work list.

D. Carlock, Sr’s Abuse of the Hiring Hall Procedure

During the trial, Laird admitted several times that

these exceptions gave Carlock, Sr. the power to enrich his

allies and to starve his enemies within the Union by con

trolling their ability to obtain referrals for employment.

After carefully considering the testimony of the witnesses,

together with the pension fund records, out-of-work lists,

and referral slips admitted into evidence, this Court is con-

vinced Carlock, Sr. did in fact exploit and, at times,

disregard entirely the hiring hall procedures to enrich his

confederates to the detriment of the plaintiffs and others.

The court finds that Carlock, Sr. used several means

to provide his confederates with regular employment in

return for their support during a period when jobs were in

high demand and short supply. The following is a brief

discussion of sume of these methods Carlock, Sr. used to

by-pass the out-of-work list, i.e., to circumvent the general

A-45

rule that applicants for employment receive referrals in the

order their names appear on the out-of-work list.

First, Carlock, Sr. repeatedly appointed his con-

federates stewards and master mechanics although many

of those appointed lacked the skills necesary to properly

perform the tasks of the position and although other equal-

ly or more qualified applicants had higher positions on the

out-of-work list. Laird admitted that Michael Greer,

Monroe Brabham, Pete Dartez, and Linda Young could not

qualify as master mechanics but received referrals as such

anyway. Carlock, Sr. forced contractors to accept un-

qualified individuals as master mechanics by threatening

work slowdowns, work stoppages, and sabotage. The court

notes that one contractor, Mar-Len Construction Co. tried

to send back a master mechanic (Scimemi) for nine or ten

months and finally succeeded only after halting construc-

tion on its project. |

Second, Carlock, Sr. bypassed the out-of-work list to

favor his confederates by exploiting the exception for refer-

ral of jobs lasting one to three days. The court recognizes

that as a business agent Carlock, Sr. was familiar with the

labor requirements of area construction projects. Carlock,

Sr. personally visited the sites, talked with contractors’

representatives, and received frequent reports from his

stewards and master mechanics. The court concludes that

Carlock, Sr. knew certain jobs would last substantially

more than three days; nevertheless, he would refer his con-

federates to the jobs out of turn by designating the refer-

rals as being for short-term jobs.

2 The court notes with interest that plaintiff Jerry Hatch received some

eighty-seven referrals between January 29, 1980 and April 26, 1983.

Defendant's Exhibit 59. The vast majority of these were short-term

jobs. An examination of these referrals and Hatch’s pension fund

records reveals that only one of the eighty-seven referrals contained an

inaccurate estimate of job duration.

A-46

Next, according to Laird, one of easiest ways to

bypass the out-of-work list was to obtain employment on

the company half of a pipe line project. Laird pointed out

that this required the business agent’s cooperation

(because only persons qualified as ‘‘regular employees’”’ of

the contractor were eligible for employment on the com-

pany half). The court finds Carlock, Sr., Laird, Schiro and

even Mason gave the requisite cooperation by not confirm-

ing the eligibility of operators employed on the company

half.

Finally, Carlock Sr. referred his confederates to con-

tractors out of turn by designating the referral as a recall

regardless of the individual’s eligibility for recall.

Carlock, Sr. kept control over union members

through intimidation and threats of retaliation in the form

of economic discrimination and physical injury. The court

notes testimony of an incident occurring during a union

meeting. A union member demanded Carlock, Sr. take ac-

tion as business agent to ensure that the wage rate the

member was earning be increased to union scale. A fight

developed and ended when Carlock, Sr. rammed the

member’s head into a wall.

Carlock, Sr. further discouraged open opposition by

requiring members to vote at meetings by standing. The

plaintiffs testified they feared voting against Carlock, Sr.

publicly because they feared Carlock, Sr.’s retaliation.

Finally, Carlock, Sr. himself kept possession or con-

trol over the out-of-work lists,? which made it difficult for

3 Often Carlock, Sr.’s secretaries had possession of the out-of-work lists,

but would require Carlock, Sr.’s presence before allowing a member to

personally examine the lists.

A-47

union members to discover improper referrals. Checking

one’s position on the list to challenge a referral meant con-

fronting Carlock, Sr. directly.

E. Plaintiffs’ Testimony

1. Howard Taliaferro

Howard Taliaferro joined the Union July 28, 1967

and remained a member until March 31, 1983, when he was

suspended for non-payment of dues. On July 21, 1983 he

was expelled. As an operating engineer, Taliaferro operated

bulldozers, sidebooms, and other equipment but could not

operate ‘‘claws’’ or cranes. Taliaferro also possessed the

skills required of a steward—he could read and write, could

operate several types of equipment, and knew the terms of

the collective bargaining agreement sufficiently to enforce

them.

Taliaferro did not support Carlock, Sr. throughout

the latter’s career as business agent. During the 1970’s

Taliaferro filed several complaints over the manner in

which Carlock, Sr. administered the hiring hall procedures,

objecting to Carlock, Sr.’s deviations from the terms of the

collective bargaining agreement. In 1977 Taliaferro refus-

ed to contribute to Babin’s re-election compaign when

Carlock, Sr. solicited support. Taliaferro also declined to at-

tend a barbecue fund raiser.

Taliaferro cooperated with the FBI during its

criminal investigation of Carlock, Sr. in 1983. As a result,

Taliaferro received threats warning him not to talk to the

FBI or anyone else.

From late 1981 Taliaferro found little employment as

an operating engineer. He signed the out-of-work list

A-48

December 4, 1981 and remained registered as available for

work until March 15, 1982, when Laird removed

Taliaferro’s name after Taliaferro was working in Texas. In

fact Taliaferro had found employment in the Dallas, Texas

area, but his name should have remained on the list until

April, 1982 when he first eained in excess of 50 hours work-

ing for Avery-Mayes Construction Co.

Taliaferro continued to work steadily in Texas until Oc-

tober of 1982. When he contacted the Union on October 12,

1982 to register as available for work, Laird incorrectly

placed Taliaferro’s name on only the pipe line out-of-work

list rather than on both lists.

From October 12, 1982 until June, 1984 Taliaferro’s

name remained on the out-of-work list. During this period

he applied for jobs with many union and non-union contrac-

tors and other businesses. In November of 1982 he received

referrals from Local 714 in Texas for jobs lasting a total of

26.5 hours. In early 1983 he found short jobs with non-

union employers, Golightly and Woodson Construction

Company. The job for Woodson lasted around ten days, for

which Taliaferro earned $1241. Taliaferro also declined

referrals for a couple of jobs because he could not operate

the equipment involved or because FBI Agent Steven Ek

had advised him to do so.

While unemployed Taliaferro experienced serious

financial hardships. In January, 1983 he made his last dues

payment to the Union. Later that month his car was

repossessed, limiting his capability to search for work.

Finally, In June, 1984 Laird referred Taliaferro to

Sanders Hydrotesting Co., where he worked for 304 hours.

He has not worked at the trade since, though he remains on

the out-of-work list and would accept a referral if offered

A-49

one for a job for which he was qualified. Taliaferro has been

receiving early retirement benefits since early 1985.

2. John C. Creel

John C. Creel joined the Union as a transfer from

Local 675 in Florida in 1974. Creel operates various types

of equipment, but primarily cranes. Finding little work,

Creel withdrew from the Union in March, 1976 to practice

as an electrician. At a chance meeting with Carlock, Sr. on

a construction site in 1979, Creel learned that crane

operators were in high demand, so he again sought admis-

sion to the Union.

Creel worked steadily from December 27, 1979 to

March 9, 1982, working nearly 2000 hours in both 1980 and

1981. After March 9, 1982 Creel’s fortunes changed

drastically. Over the next twelve months he received eleven

referrals to short jobs lasting an average of 21 hours and

totaling 235 hours. Throughout this period Creel remained

available for work, visiting the union hall four times a week

to seek referrals.

Beginning in March of 1982 Creel complained to

Carlock, Sr. and others about discrimination in the referral

procedure and on one occasion presented Carlock, Sr. with

a written complaint for filing with the grievance commit-

tee. Carlock, Sr. responded by tearing up the complaint and

stating that he was the grievance committee. Creel also

received several threats of personal injury to his family,

and damage to his shrimp boat.

In 1983 Creel got one job with Roy B. Paul Construc-

tion Co. and worked for 445.5 hours, earning $6865. On

September 20 of that year he and another plaintiff, Truman

Johnson, were injured in an automobile accident and re

QQ), ae"

A-50

mained unable to work until May, 1984. Since that time

Creel has received one referral and worked 56 hours at the

trade in May of 1986.

While searching for employment as an operating

engineer Creel supplemented his net income from shrimp-

ing during 1984 at $7000. At present Creel practices as a

real estate agent in Florida.

3. Jerry Hatch

Jerry Hatch, a man of fifty years and little or no for-

mal education first became a member of the Union in 1964.

Operating heavy equipment has been the only trade he has

ever known. He testifiec that ever since Babin and Carlock,

Sr. first took office, he has opposed them because of prob-

lems they caused within the Union. Hatch refused to pay

$25.00 per week as demanded by Carlock, Sr.’s con-

federates for a legal defense fund to pay legal fees

generated in Carlock, Sr.’s defense against state court

criminal charges. Hatch also testified that he begged Babin

to take some action to bring a solution to the internal pro-

blems in the Lake Charles District. In return for his opposi-

tion Hatch received threats by phone that his family would

be killed. On one occasion Hatch received a call from his

daughter, who tearfully reported a threat she had just

received that she and her daughter would be killed. The

stress on Hatch and his family contributed to a separation

and divorce from his wife this past year.

From October, 1982 to October 4, 1984 Hatch has

had only one long-term job. Hatch worked for R.B.

Potashnik for 438 hours from January to March, 1983.

Besides the Potashnik job, Hatch did work 122.5 hours on

several short jobs, the longest lasting 22.5 hours. At all

other times during this period Hatch remained available

A-51

for work. Hatch went to the hall five days per week seeking

referrals. He declined only those referrals involving equip-

ment he could not operate or involving jobs in the Oakdale,

Louisiana area, Carlock, Sr.’s hometown.

On October 4, 1984 Hatch suffered a job-related in-

jury and has been disabied ever since. He has been receiv-

ing disability and social security benefits, but hopes some

day to have recovered sufficiently to resume working.

4. Truman Johnson

Truman Johnson, born February 6, 1950, had been a

union member since August 12, 1973 and could operate all

types of heavy equipment except large cranes. After Oc-

tober, 1982 Johnson’s oniy employment was for R.B.

Potashnik Construction Company, for whom he worked

709 hours between December 10, 1982 and March 23, 1983.

Johnson became disabled September 20, 1983 in an

automobile accident. Except during the time he was

employed by Postashnik, he spent nearly every day at the

union hall seeking referrals. After the Potashnik job

Johnson begged Babin to take some action to solve the pro-

blems in the Lake Charles District. Babin refused, explain-

ing that Carlock was in charge.

Truman Johnson died on October 10, 1986. Charles

Johnson, as administrator of the property of Truman

Johnson's daughter, has been substituted as the proper

party plaintiff.

5. Robert Guidry

Robert Guidry entered the Union in 1949. He

operates almost all types of heavy equipment including

A-52

draglines, cherrypickers, large cranes, bulldozers and

-sidebooms, but does not operate any hydraulic equipment.

He has worked as a steward on several jobs, all before 1969.

Guidry has a long history of opposing incumbent

Union officers. In 1979 Guidry expected to receive his gold

union membership card in recognition of thirty years

membership in the Union. As a gold card holder Guidry

would have been exempt from paying dues. Instead Guidry

learned he had been suspended for non-payment of dues for

eight months beginning July 31, 1955, the same time he

had opposed the then-current business agent’s re-election.

Injured on the job, Guidry could not work at the time. Dur-

ing the 1950’s business agents customarily collected con-

tributions from the union membership to pay the dues of ill

or injured mernbers, but no contributions were collected for

Guidry.

From September, 1979 to February, 1981 Guidry

worked as the steward for Parsons—Gilbane Construction

Company. After learning that a union member was paying

Carlock, Sr. to keep his job, Guidry accompanied the

member to report this to the FBI. Soon afterwards Carlock,

Sr. tried unsuccessfully to have Guidry fired from the job.

Guidry received threats, both by phone at night and in per-

son at the job site. Three union members, confederates of

Carlock, Sr., threatened Guidry’s life during a conversation

with him on the job site and subsequently were arrested by

the FBI.

Guidry appealed to Babin in New Orleans and filed

a complaint against Carlock, Sr. Guidry presented his case

to the Executive Board at a hearing conducted in a Baton

Rouge motel room near the Baton Rouge district office of

the Union. The committee, headed by Babin, dismissed

Guidry’s charges.

———

A-53

After the Parsons job ended in February, 1981,

Guidry found employment with various contractors until

October, 1€92. From October, 1982 to August, 1983

Guidry received a referral to Ford, Bacon & Davis Con-

struction Company and made 253.50 hours.

Tetra Enterprises, Inc., a non-union employer gave

Guidry his next job in August, 1983. Guidry had been

receiving extended benefits under the federal unemploy-

ment compensation plan, having exhausted his state

benefits. Two days later the union began picketing this job,

creating a dilemma for Guidry. If he honored the picket

line. he would again be unemployed and would lose his

eligibility for extended benefits because he had refused

available employment. On the other hand, by crossing the

picket line Guidry risked losing his union membership.

Economic pressure resulting from the discrimination

within the hiring hall forced Guidry to cross the picket line

and continue working.

In October, 1983 the Union filed charges against

Guidry for crossing the picket line. At a union meeting in

Lafayette the membership present voted to revoke

Guidry’s membership in the Union. Before the meeting

Laird telephoned Carlock, Sr.’s supporters in the Union to

assure their attendance and vote against Guidry.

Guidry had only one other job during 1983. On this

job Guidry earned $1594.23 working for Harmony Corpora-

tion. In 1984 Guidry entered the trucking business

transporting drilling tools and supplies to oil well locations.

From this venture he earned $11,615.61 in 1984, $8776.06

in 1985 and $9342.11 in 1986.

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6. Jess Rowsey

Jess Rowsey, born March 17, 1923, has operated

heavy equipment since World War II. He joined the Union

November 2, 1967 and has remained a member ever since.

He can operate most types of equipment used on jobs in the

Lake Charles area, and is at least as qualified to be a master

mechanic as Linda Young and Willard Carlock, Jr., two of

Carlock, Sr.’s confederates frequently appointed as master

mechanics.

While Carlock, Sr. was business agent in Lake

Charles, Rowsey never openly opposed him. In May 1979,

Nathan Courville stewarded a job on which Rowsey work-

ed. When Courville announced he was collecting $100 from

each union member on the job for Carlock, Sr.’s legal

defense fund, Rowsey paid almost immediately out of fear

that otherwise he would be laid off. Later, Carlock, Sr. per-

sonally visited the job and warned Rowsey to keep quiet

about the payment. Again to keep his job, Rowsey did as

“requested.”

At a union meeting in 1980 or 1981 Rowsey witness-

ed the explosiveness of Carlock, Sr.’s temper. Babin,

Schiro, Carlock, Sr. and Larid all attended a meeting, sit-

ting on a dais at the front of the crowd. Just before the

meeting ended, J.D. Antley, a retired member of the Union,

approached Carlock, Sr. and requested that his son, then an

oiler, be issued an operator's book. When Carlock, Sr. refus-

ed, Antley responded that Carlock, Sr. had done the same

thing before for others. Carlock, Sr. exploded, cursing

Antley and physically accosting him. Union members from

the crowd had to separate the two physically. Meanwhile

Babin and Laird had taken no action and Schiro had only

banged his gavel demanding order. Rowsey testified that

the event left him shaken and fearful of Carlock, Sr.

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In June, 1981, Rowsey testified in Monroe on behalf

of Lamar Honey against the business agent from the

Monroe district, Charles ‘‘Sub’’ Hayes. See International

Union of Operating Engineers, Local 406 v. N.L.R.B., 701

F.2d 504 (5th Cir. 1983). Since then Rowsey has experienc-

ed a great deal of trouble obtaining job referrals. In August

of 1981 Rowsey received referrals to Industrial Construc-

tion Co., working only two hours, and to Ford, Bacon &

Davis Construction Co., working 347.5 hours there.

During 1982 Rowsey did not receive a referral until

September and worked a total of 108 hours. The court

notes that Rowsey was not available for work during his

wife's hospitalization from March to May of 1982. In 1983

his hours increased somewhat to 229 hours. Rowsey did not

work at all in 1984, 1985, or 1986 forcing him to apply for

his retirement benefits in December, 1984. He received his

first retirement check May, 1985.

7. Vincent Reed

Vincent Reed first began working out of the Union in

1959 as an oiler. In 1960 he was injured and subsequently

suspended from the Union. Near the end of 1978 Reed

returned to the Union to seek employment through the

hall. Carlock, Sr. exchanged a referral for $350 dollars in

cash, delivered personally to Carlock, Sr. alone. Reed work-

ed for Rimmer and Garrett Construction Company from

March 1979 to the end of the year. The defendants offered

no reasonable explanation for this payment; therefore, the

court concludes the payment was a bribe. Certainly, Reed

understood it to be such.

Eventually Reed also sought membership in the

Union. Reed's testimony concerning payments Carlock, Sr.

f

|

A-56

demanded in return for membership and employment is

somewhat confusing. It is apparent that Reed believed

Carlock, Sr. demanded a series of bribes in return for

membership; however, the court is satisfied that Reed’s

conclusions resulted from misunderstandings by both

Carlock, Sr. and Reed. The court is satisfied that the facts

are as follows:

In response to Reed’s request for membership,

Carlock, Sr. told Reed it would cost $1800. Apparently

Carlock, Sr. believed Reed had been a member of the Union

in 1960 and now wanted reinstatement. The $1800

represents back dues owed from 1960 to 1980. After Reed

complained to Babin about Carlock, Sr.’s demand, the fact

that Reed had never been a journeyman operator surfaced.

Carlock, Sr. then initiated Reed as a new member, issuing

him a permit until Reed paid five dollars per week for

seventy-eight weeks, plus an initation fee and a building

fund charge. Upon completion of these payments in April

of 1980, Reed received a membership book.

After September, 1980 Reed received only three

referrals. Through the first two referrals, both in 1982,

Reed obtained employment lasting 244.4 hours. Reed’s last

referral from the Union came in January of 1983. From

January to March, 1983 Reed worked 450 hours for R.B.

Potashnik Construction Company. After March 1983, Reed

only received offers to run equipment he couldn’t operate,

to work short jobs too far out-of-town to be financially at-

tractive, or to work jobs too short to merit leaving the top

of the out-of-work list.

8. Gene Romero

Gene Romero entered the Union on October 26, 1972.

He primarily operates rubber-tire equipment, bulldozers,

:

:

A-57

and other dirt-moving equipment. Like the other plaintiffs,

Romero opposed Carlock, Sr. On one occasion in 1983, a

confederate of Carlock, Sr. requested that Romero con-

tibute to Carlock, Sr.’s legal defense fund. Romero refused.

From 1979 to 1981 he worked over 2000 hours each

year, but after that his hours fell sharply to 617.25 hours

in 1982, 170 hours in 1983, 260 hours in 1984, and only 16

hours in 1985. When not working, Romero went to the

union hall almost every day during the mornings to seek

referrals.

9. Alton Janise

Alton Janise, born January 7, 1928, joined the Union

in 1957. He has had several strokes, the first occurring in

1984. Since then he has been unable to work. His memory

is very poor and he can no longer read.

Janise’s pension fund records indicate that he work-

ed the following hours:

Hours

1980 1795

1981 2146.5

1982 733.5

1983 240

1984 0

1985 0

10. Craig Edwards

Craig Edwards entered the Union March 22, 1973.

He is qualified to operate almost all kinds of heavy equip-

ment except draglines. Since January 31, 1985 he has been

suspended from the Union for non-payment of dues, but he

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testified that he plans to pay the amount in arrears once he

is financially able. In 1981 and 1982 he worked around 1100

hours. Then in 1983 his hours fell to 590.80 and in 1984 to

73.50.

Craig Edwards testified that on one occasion when

he had become desperate for work, he sold Carlock, Sr. an

air conditioning unit worth several thousand dollars. In

return Craig Edwards received $200. and a job several days

later. Craig Edward's testimony concerning this incident

was supported by Roderick Edwards, Craig’s brother who

testified that he helped Craig deliver the air conditioner to

Carlock, Sr.

In 1982 Craig Edwards received a referral to Nichols

Construction Co. The job lasted 668.8 hours and carried

over into April of 1983. Craig Edwards has not received

any referrals through the hall since then, but did find a job

with Industrial Construction Co. on his own operating a

cherrypicker for 73.5 hours. He has maintained his name on

the out-of-work list and has remained available for work.

11. Roderick Edwards

Roddy Edwards, Craig’s brother, joined the Union in

1964. He operates several types of heavy equipment, in-

cluding hydraulic equipment. Hostility between Roddy Ed-

wards and Carlock, Sr. began around late 1982 or early

1983 when Roddy Edwards stopped receiving referrals.

While he remained out of work, Carlock, Sr. provided his

wife Beverly with referrals. As Carlock, Sr.’s “girlfriend,”

she sometimes had two jobs from the Union at the same

time.

From May to October, 1982 Roddy Edwards worked

for J.A. Jones Construction Co. He did not receive another

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referral from the Union from then until the time he began

serving a jail sentence in mid-1985.

12. Cary Vaughn

Cary Vaughn joined the Union as an oiler in 1968. As

: noted above, the Union maintaines a separate out-of-work

| list for oilers. In 1979 and 1980 Vaughn worked just over

1790 hours. In 1981 his hours fell to about 1000. Then in

1982 he worked only 395 hours, followed by 39 hours in

1983 and 181 in 1984.

Vaughn claims he was passed over on the out-of-

work list in August of 1982. Allan Wayne Willard, who had

registered as available for work on December 8, 1981,

_Jeeived a referral in August ahead of Vaughn who had

registered November 23, 1981. But Vaughn testified that

ne had surgery to remove kidney stones about that time,

and a notation indicating hospitalization follows his name

on the August, 1982 out-of-work list. The court concludes

Vaughn was not entitled to this referral because he was not

available for work in August, 1982.

Around November 1, 1983 Vaughn was passed over

on the out-of-work list for a referral to R.B. Potashnik Con-

struction Co. Vaughn had registered as available for work

October 31, 1982, but the referral went to Daniel Sonnier,

who had signed the list April 8, 1983, The court is satisfied

that Vaughn was available for work and would have ac-

cepted the referral had it been offered to him.

CONCLUSIONS OF LAW

The plaintiffs first claim the Union breached its

fiduciary duty to represent them fairly because the Union

operated its hiring hall in a discriminatory fashion. The

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Labor Management Relations Act, 29 U.S.C.A. § 159(a)

(1973), recognizes unions as exclusive bargaining agents

for all persons within the bargaining unit and correlatively

imposes upon the unions the duty to represent fairly the in-

terests of each employee in the unit in dealings with the

employer, Smith v. Local No. 25, Sheet Metal Workers In-

ternational Association, 500 F.2d 741 (5th Cir.1974).

[1] in order to fulfill its duty of fair representation, a

union must enforce the provisions of a collective bargain-

ing agreement in a non-discriminatory manner and repre-

sent all segments of the bargaining unit fairly. ‘‘A breach

of the statutory duty of fair representation occurs only

when a union’s conduct towards a member of the collective

bargaining unit is arbitrary, discriminatory, or in bad

faith.’’ Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916,

17 L.Ed.2d 842 (1967). In the context of distributing job

referrals, a breach occurs if the Union applies ‘‘arbitrary

and invidious criteria in referring employees to jobs.” /n-’

ternational Union of Operating Engineers, Local 406° v.

N.L.R.B., 701 F.2d 504, 508 (5th Cir. 1983).

{2} The evidence in this case demonstrates that the

defendants Schiro, Laird, and Carlock, Sr. manipulated the

referral system to deny the plaintiffs employment oppor-

tunities while favoring supporters of the Union’s officers

and business agents. Because these referrals (and denials)

were based on arbitrary and invidious considerations of

political support or opposition, each represents a breach of

the Union's duty of fair representation.

The United States Supreme Court has held that a

six-month statute of limitations period applies to all duty

of fair representation actions. DelCostello v. International

Brotherhood of Teamsters, 462 U.S. 151, 108 S.Ct. 2281, 76

L.Ed.2d 476 (1983). Each improper referral constitutes a

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separate breach of the duty of fair representation and those

breaches occurring more than six months prior to the in-

stitution of the suit are time-barred. Sevako v. Anchor

Motor Freight, Inc., 792 F.2d 570, 575 (6th Cir.1986). As

this court has previously ruled, only those breaches of the

duty of fair representation occurring within six months of

the filing of suit are actionable.

[3] The plaintiffs introduced testimony concerning a

vast number of referrals which they claim demonstrate

discriminatory distribution of referrals through the hiring

hall. After studying the testimony of the witnesses and the

exhibits admitted into evidence, the court is satisfied that

all of the plaintiffs have proven repeated abuses of the hir-

ing hall procedure by the Union’s business agents. The

plaintiffs are entitled to recover loss of wages for ali

breaches occurring after the date six months prior to the

date each plaintiff filed suit. The essential facts of each im-

proper referral have been compiled and placed in the

Appendix.

[4] The plaintiffs also have made claims under the

Labor-Management. Reporting and Disclosure Act

(“LMRDA’)), 29 U.S.C.A. §§ 401 to 531 (1985). The ‘Bill of

Rights’’ section of this Act guarantees union members,

among other protections, equal rights to vote and other-

wise participate in union deliberations, 29 U.S.C.A. §

411(a)(1) (1985), as well as the rights of free speech and

assembly, 29 U.S.C.A. §411(a)(2) (1985). Section 411(a)(5)

protects union members from being disciplined without a

full and fair hearing and Section 529 prohibits unions and

their officers or agents from disciplining any union member

for exercising his rights guaranteed by the LMRDA.

These sections were designed ‘‘to protect the

rights of union members to discuss freely and criticize the

A-62

management of their unions and conduct of their officers.

The purposes of these sections is to prevent union officials

from using their disciplinary powers to silence criticism

and punish those who dare to question and complain. Ar-

chibald v. Local 57, International Union of Operating

Engineers, 276 F.Supp. 326, 329 (D.R.1.1967).

Manipulation of hiring hall procedures to suppress

participation in union activities and opposition to union

management and policies constitutes violations of

§ 411(a)(1) and (2). Murphy v. International Union of

Operating Engineers, Local 18, 774 F.2d 114, 123 (6th Cir.),

cert.denied ___ U.S. ___, 106 S.Ct. 1201, 89 L.Ed.2d 315

(1986). The court finds that the Union, Carlock, Sr., Laird,

and Schiro, manipulated the hiring hall procedure to sup-

press opposition from union members, particularly the

plaintiffs. The court finds further that Carlock, Sr.

employed threats and intimidation to curtail the plaintiff's

exercise of their rights to freedom of speech and assembly.

Sections 411(a)(5) and 529 protect union members

from unlawful discipline. A union subjects a member to

‘discipline’ under §§ 411 and 529 ‘‘when (1) it is under-

taken under color of the union’s right to control the

member’s conduct in order to protect the interests of the

union or its membership, and (2) it directly penalizes him in

a way which separates him from comparable members in

good standing.” Keene v. International Union of Operating

Engineers, Local 624, 569 F.2d 1375, 1379 (5th Cir.1978). -

Discrimination in job referrals constitutes discipline

when used as a tool by union leaders to control union af-

fairs in violation of a worker’s membership rights. See

Vandeventer v. Local Union No. 513, International Union

of Operating Engineers, 579 F.2d 1373, 1378-79 (8th Cir.),

a

A-63

cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656

(1978). This court has no trouble finding that the defen-

dants violated sections 411(a)(5) and 529 by limiting the

employment opportunities made available to the plaintiffs

to penalize them for refusing to support the defendants and

for openly opposing them.

[5] Suits brought under the LMRDA are subject to a

six-month limitations period. Local 1397, United

Steelworkers of America, 748 F.2d 180 (8rd Cir.1984). As

this court has already ruled, the plaintiffs may only recover

for those violations of the LMRDA occurring after the date

six months prior to when the plaintiffs filed suits.

[6] Having found that all of the plaintiffs but Vaughn

have proven breaches of the Union’s duty of fair represen-

tation and violations of the LMRDA, the court must next

address the remedies available to the plaintiffs. As

recovery for breach of the duty of fair representation, the

plaintiffs are entitled to recover their loss of wages. The

LMRDA, 29 U.S.C.A. §412(1985) permits a court to award

‘‘such relief... as may be appropriate.’’ As discussed below

the court holds that in these actions appropriate relief must

include, in addition to loss of wages, mental suffering,

punitive damages, and attorney’s fees. Additionally, the

court holds that Guidry is entitled to reinstatement of full

membership in the Union upon full payment of past dues.

Each of the plaintiffs is entitled to recover his lost

wages caused by the discriminatory operation of the hiring

hall. The plaintiffs need not prove these amounts with

mathematical certainty. Keene v. International Union of

Operating Engineers, Local 624, 569 F.2d 1375, 1382 (5th

Cir.1978). As reasonable compensation the court will award

the difference between the amount each plaintiff would

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have earned had the hiring hall been operated in a non-

discrinatory fashion less the amount each actually earned

from referrals through the Union. The court calculates the

former amount by multiplying the average number of

hours worked by operating engineers actively seeking

employment and their hourly rate of pay. The parties have

stipulated that the nourly rate to be used is $13.00.

The court accepts the testimony of the defendants’

expert concerning the average number of hours worked by

operating engineers actively seeking employment during

the years 1981-1983. In calculating the average hours

worked during 1984, the court has assumed that the yearly

averages continued to decrease in 1984 at the same rate as

in 1982 and 1983. Accordingly, the average number of

hours worked by operataing engineers actively seeking

employment during 1981-1984 is as follows:

Average Hours

1981 1500

1982 879

1983 . 516

1984 302

Taliaferro has demonstrated that the hiring hall was

operated in a manner which discriminated against him as

early as January 5, 1982 (See Appendix) and continued un-

til at least March 10, 1984 when Carlock, Sr. was fired.

Taliaferro filed suit February 7, 1983 and, therefore, may

recover lost wages from August 7, 1982, six months prior

to the filing date, to March 10, 1984.

To calculate Taliaferro’s lost wages, the court must

first calculate the earnings of the average operating

engineer actively seeking employment from August 7, 1982

through March 10. 1984. Such a person could expect to

—

(ie ill ii

A-65

have worked 351.6 hours in 1982 after August 7th (146

days after August 7, 1982, divided by 365 days in 1982,

multiplied by 879 hours worked in 1982 on average), 516

hours in 1983, and 58.6 hours in 1984 up to March 10, for

a total of 926 hours. His compensation for the period (at

$13.00 per hour) would equal $12,038. The amount

represents the income Taliaferro could expect to have earn-

ed through the Union if the hiring hall had been operated

fairly. It does not include outside income he could expect to

have earned during periods of being on the out-of-work list

awaiting a referral.

Next the court must calculate and deduct

Taliaferro’s actual earnings from referrals through the

Union during the same period. His pension records reflect

that he worked an estimated 374.5 hours‘ in 1982 after

August 7th and zero hours in 1983 and early 1984.

Taliaferro’s earnings from union jobs totaled $48A8.50;

therefore, his award for lost wages equals $7169.50.

The court notes that during 1983 Taliaferro earned

$1241 from Woodson Construction Company, a non-union

employer. This amount should not be deducted as mitiga-

tion of damages because it represents an amount Taliaferro

probably would have earned even if the Union had operated

the hiring hall properly. In such a case Taliaferro would

still have-been without employment through the Union for

almost nine months because even without discrimination in

the hiring hall, operating engineers could be expected to

work an average of only 516 hours at jobs obtained through

4 This number reflects an estimate of the hours worked in August after

August 7th. Taliaferro’s records indicate he worked 174.5 hours for the

month of August. The court estimates that 135 of those were after

August 7th (24 days after August 7th/31 days in August X 174.5 hours

in August = 135 hours after August 7th).

A-66

the union. During periods of unemployment, the court

could reasonably expect Taliaferro to explore employment

opportunities outside the Union.

Creel proved discrimination in the hiring hall against

him as early as April 2, 1982 (SeeAppendix) and continuing

until September 20, 1983 when he became unable to work

as a result of an auto accident. Creel filed suit April 29,

1983 and, therefore, may recover lost wages occurring after

October 29. 1982. From October 29, 1982 to September 20,

19832 the average operating engineer could be expected to

work 523.5 hours and earn $6805.50 from jobs obtained

through the Union. During the same period Creel actually

worked an estimated 515 hours and earned $6695. His total

award for lost wages equals $110.50.

Hatch is entitled to recover for lost wages accruing

from October 29, 1983 (six months before he filed suit)

through March 10, 1984 (the date Carlock, Sr. was fired).

The average hours operating engineers actively seeking

employment could expect to have worked during this

peried is 726. During the same period Hatch received refer-

rals through the Union for jobs where he worked a total of

only 540 hours. Hatch’s lost earnings, therefore, total

$2418.

Johnson, who also filed suit April 29, 1983, is entitl-

ed to recover lost wages from October 29, 1983 until

September 20, 1983, the date he suffered disabling injuries

in an automobile accident. During those dates the average

hours worked by operating engineers seeking employment

equalled 523.5 hours. Johnson, however, worked a total of

—7i4 hours during that time; therefore, although business

agents operated the hiring hall syatem unfairly and at

times passed over Johnson when making referrals, he still

received enough referrals to allow him to work more hours

A-67

than average. Thus, he did not suffer any lost wages.

Guidry filed suit May 11, 1983 ard may recover lost

wages accruing from November J1, 1982 until March 10,

1984. Between those dates the average hours worked was

695, while Guidry actually worked only 286.5 hours on jobs

to which he received referrals from the Union. His lost

wages total $5310.50. Again, his earnings from sources

other than the Union do not mitigate his losses because he

would have had full opportunity to work on these jobs even

absent discrimination within the hiring hall procedure.

~ Prior to the conclusion of trial, the parties stipulated

to the amount of lost wages to which the remaining plain-

tiffs would be entitled in the event the court ruled in their

favor. Having ruled in their favor, the court will award

damages for lost wages to these plaintiffs in the following

amounts:

Rowsey $2000

Reed 2500

Romero 2500

J anise 1000

C.Edwards 300

R.Edwards 500

Vaughn 1000

In actions brought under the LMRDA, damages for

emotional distress are recoverable. Bise v. International

Brotherhood of Electrical Workers, Local 1969, 618 F.2d

1299 (9th Cir.1979), cert. denied 449 U.S. 904, 101 S.Ct.

279, 66 L.Ed.2d 136 (1980). But, ‘‘emotional distress, stan-

ding alone, does not constitute a sufficient basis for the

awarding of damages under the [|LMRDA|].” /nternational

Brotherhood of Boilermakers, Iron Shipbuilders,

Blacksmith, Forgers & Helpers v. Rafferty, 348 F.2d 307,

A-68

315 (9th Cir.1965). Johnson, therefore, is not entitled to an

award for emotional distress because he did not prove any

lost wages.

Each of the plaintiffs clearly has suffered emotional

distress as a result of the actions of the defendants.

Because they opposed Carlock, Sr., they lost the opportuni-

ty to provide a livelihood for themselves and their familes

through the Union. Most of these plaintiffs have little for-

mal education, which limited their opportunities for alter-

native sources of income. These plaintiffs suffered all the

humiliation and anguish associated with financial

hardship.

In addition to economic discrimination and intimita-

tion, the plaintiffs were subjected to physical intimidation

by Carlock, Sr. and his confederates. They and their

families received threats of personal injury and of damage

to their property. Needless to say, the defendants’ actions

placed the plaintiffs and their families under an enormous

strain. The court has covered all of the actions of the defen-

dants which caused this mental and emotional distress in

its discussions of the plaintiffs’ testimony and will not

repeat it here.

After considering the mental pain and suffering of

each plaintiff, the court holds each is entitled to compensa-

tion for emotional distress in the following amounts:

Taliaferro $20,000

Creel 5,000

' Hatch 5.000

Johnson 1,000

Guidry 20,000

Rowsey 1,000

Reed 1,000

A-69

Romero 1,000

Janise 1,000

Craig Edwards 1,000

Roderick Edwards 1,000

Vaughn 1,000

To fashion the appropriate relief to which Guidry is

entitled under the LMRDA, the court finds it necessary to

order Guidry’s reinstatement as a member of the Union. In

Kuebler v. Cleveland Lithographers & Photoengravers

Union Local 24-P, 473 F.2d 359 (6th Cir. 1973), the court

ordered the reinstatement of a union member who was ex-

pelled for attending a meeting to discuss the lack of pro-

gress in negotiations between labor and management dur-

ing a strike. First, the court found that disciplining the

union member violated the LMRDA because the LMRDA

guarantees a union member’s right to assemble. 29

U.S.C.A. § 411(a)(2) (1985). Second, the court found that the

expulsion violated 29 U.S.C.A. § 411(a)(5) (1985) because

the union member did not receive a full and fair hearing

before an impartial tribunal. In Kuebler the parties who

had investigated the charges against the union member

composed the tribunal which decided his case.

Guidry’s expulsion from the Union for crossing a

Union picket line also violated the LMRDA. As recognized

by the court in Kuebler, 29 U.S.C.A. § 411(a(5) (1985) en-

titles union members to a full and fair hearing before an im-

partial tribunal. Guidry was expelled by a vote of Union

members present at a meeting in Lafayette calied to decide

Guidry’s fate. This tribunal was far from fair and impartial

because prior to the meeting Laird contacted those area

union members he could trust to vote against Guidry and

obtained their attendance at the meeting to ensure that

Guidry would be expelled.

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Guidry’s expulsion also was a direct result of the

economic discrimination directed against him by Carlock,

Sr. Guidry’s expulsion occurred after he crossed a picket

line to work for Tetra Enterprise, Inc. in August 1983.

Prior to this job Guidry had received only one job referral

from the Union and had worked only 253.5 hours in 1983.

Financial hardships resulting from economic discrimina-

tion forced Guidry to accept employment with a non-union

employer and cross the Union’s picket line. Because

Guidry’s expulsion resulted from the Union's violations of

the LMRDA, the court believes it appropriate to require

Guidry’s reinstatement to full membership in the Union.

The court will also issue an order prohibiting the Union

from further disciplining Guidry for crossing the Union’s

picket line at the Tetra Enterprise, Inc. jobsite.

The court next addresses the issue of whether

punitive damages should be awarded in the present case.

As the defendants have repeatedly pointed out, the United

States Supreme Court has announced a per se ban on

punitive damage awards in cases based on breach of the du-

ty of fair representation. International Brotherhood of

Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60

L.Ed.2d 698 (1979). Thus, this court may not award

punitive damages in this case for the defendants’ violations

of the duty of fair representation.

The plaintiffs in the present case have also proven

violations of the LMRDA. The Supreme Court’s decision in

Foust expressly left open the question whether punitive

damages were proper in LMRDA cases. Foust, 442 U.S. at

47 n. 9, 99 S.Ct. at 2125 n. 9. The United States Court of

Appeals for the Fifth Circuit has held both before and after

Foust that punitive damages may be awarded under the

LMRDA where the union acted with ‘‘actual malice or

reckless or wanton indifference to the rights of the plain-

A-71

tiff... International Brotherhood of Boilermakers uv.

Braswell, 388 F.2d 193, 199 (5th Cir.) cert. denied 391 U.S.

935, 88 S.Ct. 1848, 20 L.Ed.2d 854 (1968); Parker v. Local

Union No. 1466, United Steelworkers of America, 642 F.2d

104, 106 (5th Cir. 1981).

The plaintiffs have shown they are entitled to

punitive damages in the present case. The evidence is clear

that Carlock, Sr. acted with actual malice in violating the

plaintiffs’ right secured by the LMRDA. Babin and Laird

demonstrated their wanton indifference to the plaintiffs’

rights by taking no meaningful action to correct an in-

tolerable situation of which they were both fully aware.

In assessing punitive damages against a defendant,

the court must be mindful of the purpose of such an award.

The awarding of punitive damages in appropriate cases

serves as a determent to those abuses which Congress

sought to prevent when it passed the LMRDA.

Strong reasons of policy promote the use of ex-

emplary damages to deter union officials from

conduct designed to suppress the rights of

members. . . . The very basis for the existence of

unionism in our society today is the promise of

employment to those who desire to associate free-

ly in order to obtain it. The right of the working

man to the benefits of collective bargaining is too

essential and valuable to be hindered, impeded

and seriously damaged by irresponsible and dic-

tatorial leaders whose dominance in any given

situation does great disservice to the purpose and

principles of unionism. . . . Imposition of ex-

emplary damages, when the requisite elements of

malice, gross fraud, wanton or wicked conduct,

violence or oppression are present, serves to

achieve the deterrence they were designed to

effect.

A-72

Braswell, 388 F.2d at 200, quoting Fittipaldi v. Legassie,

18 A.D.2d 331, 239 N.Y.2d 792, 796 (1963).

In deciding the proper amount of punitive damages

to assess against the Union, this court specifically notes

two important considerations. First, the defendants acted

intentionally. Secondly, the court recognizes the individual

union member's reluctance to challenge union business

agents and other officers when the member’s rights are

violated because these officials exercise nearly complete

control over the member’s means of earning a livelihood.

For all of the above reasons, the court assesses $120,000 in

punitive damages to be paid by the Union, $10,000 to be

paid to each plaintiff.®

This court also is very concerned with the role Babin

has played in the events leading to the present causes of ac-

tion and will play in Union affairs in the future. Babin had

the authority and the duty to direct the actions of the other

individual defendants in this case. The evidence shows he

failed to properly supervise his business agents and failed

to meaningfully investigate complaints received from

union members. Babin remains the current Business

Manager, and the testimony of Schiro and Mason indicates

that Babin has not improved the quality of his supervision.

Both Schiro and Mason testified that no one directly super-

vises their activities. Rather, they perform under an

‘“‘*honor’’ system. For these reasons, in addition to those

discussed above, the court assesses punitive damages

> Johnson is entitled to recover punitive damages. By proving the Union

violated his rights under the LMRDA, he established his right to com-

pensatory damages. Although he failed to prove any compensatory

damages, he may recover punitive damages to vindicate the invasion of

his protected rights and as a deterrence against future violations.

Braswell, 388 F.2d at 199. Bise, 618 F.2d at 1305.

A-73

against Babin in the amount of $12,000, $1,000 to be paid

to each plaintiff.

Both Carlock, Sr. and Laird were fired after the il-

legality of their activities came to light during FBI and

Senate investigations. Subsequently, each was convicted

and sentenced to prison for various crimes stemming from

their operation of the Lake Charles district office. The

court sees little prospect for their ever attaining positions

of responsibility within the Union in the future. Because an

assessment of punitive damages against these individuals

would serve no useful purpose, the court will not now make

such an assessment.

Finally, the plaintiffs seek recovery of reasonable at-

torney’s fees. Even ‘‘in the absence of statutory or contrac-

tual authorization, federal courts, in the exercise of their

equitable powers, may award attorneys’ fees when the in-

terests of justice so require.’ Hail v. Cole, 412 U.S. 1, 4-5,

93 S.Ct. 1943, 1946, 36 L.Ed.2d 702 (1973). Federal courts

may award attorney’s fees to a successful party: (1) when

his opponent has acted in bad faith, vexatiously, wantonly,

or for oppressive reasons, or (2) where his successful litiga-

tion confers substantial benefit on the members of an ascer-

tainable class, and where the court's jurisdiction over the

subject matter of the suit makes possible an award that

will operate to spread the costs proportionately among

them. Hall, 412 U.S. at 5, 93 S.Ct. at 1946. The court finds

ah award of attorneys’ fees justified under both theories.

The court has already found the Union, through its

officers, acted in bad faith, wantonly and malicious. This

conduct justifies shifting the burden of the plaintiffs’ at-

torney’ fees to the Union.

The court also finds that by vindicating their own

A-74

rights guaranteed by the LMRDA, the plaintiffs have

rendered a substantial benefit to all members of the Union.

This litigation has served to protect the rights of all Union

members to be free from discrimination in the operation of

the hiring hall by providing substantial deterrence from

such conduct in the future. This litigation has also con-

tributed to the preservation of union democracy by preser-

ving the rights of all union to voice opposition to incum-

bent union officials without fear of reprisal. Because all

Union members share in the benefits of this litigation, it is

only tair that they share in its costs.

CONCLUSION

For the reasons assigned above, the court rules in

favor of plaintiffs. The court will render separate

judgments in each of these action reflecting its findings in

this litigation.

APPENDIX

l. November 30, 1981—Carl Beaugh was referred to

Mar-Len Construction Co. for a one week job that

lasted 235 hours. Beaugh signed the out-of-work list

November 23, 1981 and jumped:

Reed October 6, 1980

R. Edwards November 23, 1981

to

December 4, 1981—Mike Duplechain was referred

to IMC to operate a cherry picker one week. The job

lasted 480.9 hours. He signed the out-of-work list

December 2, 1981 and jumped:

Reed

R. Edwards

C. Edwards

Hatch

A-75

October 6, 1980

November 23, 1981

December 1, 1981

December 1, 1981

December 10, 1981—Deavid George was referred to

Bechtel for a 3-4 day job that lasted 802.75 hours.

He signed the out-of-work list December 8, 1981 and

jumped;

Reed

R. Edwards -

C. Edwards

Hatch

Johnson

October 6, 1980

November 23, 1981

December 1, 1981

December 1, 1981

December 8, 1981

January 5, 1982—Carl McNabb was referred to J.A.

Jones as a master mechanic for a job lasting 1974.5

hours. He had not signed the out-of-work list and

jumped:

Reed

R. Edwards

C. Edwards

Johnson

Taliaferro

Rowsey

Guidry

Romero

Janise

_ October 6, 1980

November 23, 1981

December 1, 1981

December 8, 1981

December 8, 1981

Deceinber 10, 1981

December 15, 1981

December 17, 1981

December 17, 1981

February 8, 1982—Edward Kemp was referred to

ECI for a 1-2 day job that lasted 319 hors. He sign-

ed the out-of-work list December 22, 1981 and

jumped:

~

.

A-76

Reed October 6, 1980

R. Edwards November 23, 1981

C. Edwards December 1, 1981

Jahnson December 8, 1981

Taliaferro December 8, 1981

Rowsey December 10, 1981

Guidry December 15, 1981

Romero December 17,1981

Janise December 17, 1981

December 10, 1981—Wyatt Trahan was referred to

Industrial Construction Co. to operate a cheery

picker for the duration of the job, which lasted over

4000 hours. He signed the out-of-work lists

December 10, 1981 and jumped:

Reed October 6, 1980

R. Edwards November 23, 1981

C. Edwards December 1, 1981

Johnson December 8, 1981

Taliaferro December 8, 1981

February 15, 1982—Howard Wash was referred to

ECI Engineering Co. as a grease foreman for a 2 to

3 day job that lasted 400.5 hours. He signed the out-

of-work list on January 28, 1982 and jumped:

Reed October 6, 19890

R. Edwards November 23, 1981

Johnson December 8, 1981

Taliaferro December 8, 1981

Rowsey December 10, 1981

Guidry December 15, 1981

J anise December 17, 1981

Hatch January 22, 1982

10.

A-7?

February 15, 1982—Clyde Shearin was referred to

ECI Engineering Co. for a job that lasted 197 hours.

He signed the out-of-work list January 28, 1982 and

jumped:

Reed October 6, 1980

R. Edwards November 23, 1981

Johnson December 8, 1981

Taliaferro December 8, 1981

Rowsey December 10, 1981

Guidry December 15, 1981

Janise December 17, 1981

Hatch January 22, 1982

February 22, 1982—Carl Beaugh was referred to

American Fabricators to operate a cherry picker for

one week. The job lasted 217 hours. He signed the

out-of-work list January 11, 1982 and jumped:

Reed October 6, 1981

R. Edwards November 23, 1981

Johnson December 8, 1981

Taliaferro December 8, 1981

Rowsey December 10, 1981

Guidry December 15, 1981

Janise December 17, 1981

April 2, 1982—Andy Chicano was referred to ECI

Engineering as a heavy duty operator for the dura-

tion of the job, which lasted 190.5 hours. He signed

the out-of-work list March 15, 1982 and jumped:

R. Edwards November 23, 1981

Johnson December 8, 1981

Rowsey December 10, 1981

Hatch January 28, 1982

11.

12.

13.

A-78

Janises March 9, 1982

Creel March 15, 1982

April 19, 1982—Clyde Shearin was referred to J.S.

Jones as a master mechanic for a one month job

which lasted 782 hours. He has originally signed the

out-of-work list December 8, 1981 and was removed

when he worked from February 1982 to April 1982.

He should have returned to the list at April 16,

1982. He jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Hatch January 23, 1982

Creel March 15, 1982

Reed March 16, 1982

April 26, 1982—Howard Wash was referred to IMC

to operate a cherry picker for the duration of the

job, which lasted for 215 hours. He signed the cut-

of-work list April 16, 1982 and jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Hatch January 23, 1982

Creel March 15, 1982

Reed March 16, 1982

May 10, 1982—Mike Duplechain was referred to

Vincent Construction as a unit operator for a one

week job which lasted 695 hours. He signed the out-

of-work list April 5, 1982 and jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Hatch January 23, 1982

.

;

|

:

Try

14.

15.

16.

A-79

Creel March 15, 1982

Reed March 16, 1982

May 25, 1982—Carl Beaugh was referred to

Augenstine to operate a cherry picker for a one day

job which lasted 652 hours. He had originally signed

the out-of-work list April 5, 1982 but his name

should have gone to the bottom of the list because

he worked two jobs, beth of which lasted over 40

hours. He jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Hatch January 23, 1982

Creel March 15, 1982

Reed March 16, 1982

C. Edwards April 23, 1982

Romero May 11, 1982

May 16, 1982—David George was referred to SIPI

to operate a cherry picker for a two to three week

job which lasted 1178.25 hours. He signed the out-

of-work list May 5, 1982 and jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Hatch January 23, 1982

Creel March 15, 1982

Reed March 16, 1982

C. Edwards April 23, 1982

June 8, 1982—Howard Wash was referred to White

for a one to two week job. He signed the out-of-work

list June 1, 1982 and jumped:

Johnson December 8, 1981

17.

18.

19.

A-80

Rowsey December 10, 1981

Hatch January 23, 1982

Creel March 15, 1982

June 14, 1982—Winston Carlock was referred to

J.A. Jones to operate a cherry picker for the dura-

tion of the job which lasted 108 hours. He signed the

out-of-work list June 14, 1982 and jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Hatch January 23, 1982

Creel March 15, 1982

_tReed March 16, 1982

Romero May 11, 1982

June 22, 1982—Howard Wash was referred to Sauer

to operate a cherry picker for the duration of the job

which 172 hours. He signed the out-of-work list

June 14, 1982 and jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Hatch January 20, 1982

— March 15, 1982

Reed March 16, 1982

Romero May i1, 1982

July 28, 1982—Howard Wash was referred to Rig-

gers as a mechanic for a one week job which lasted

60 hours. He had not signed the out-of-work list and

jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Creel March 15, 1982

20.

21.

22.

A-81

Reed March 16, 1982

Romero May 11, 1982

C. Edwards July 20, 1982

July 28, 1982—Edward Kemp was referred to Ford,

Bacon & Davis to operate a cherry picker for a two

week job which lasted 134 hours. He had not signed

the out-of-work list and jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Creel March 15, 1982

Reed March 16, 1982

Romero . May 11, 1982

August, 1982—Grady Cauthron was referred to

Reading & Bates, where he worked 533 hours. He

signed the out-of-work list July 2, 1982 and jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Creel March 15, 1982

Reed March 16, 1982

Romero May 11, 1982

August, 1982—Mike Duplechain was referred to

Reading & Bates and worked 343 hours. He has not

signed the out-of-work list and jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Creel March 15, 1982

Reed March 16, 1982

Romero May 11, 1982

C. Edwards August 17, 1982

23.

24.

25.

A-82

August 24, 1982—Linda Young was referred to

Sauer to operate a cherry picker for a two day job

which lasted 1012 hours. She signed the out-of-work

list July 6, 1982 and jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Creel March 15, 1982

Reed March 16, 1982

Romero May 11, 1982

August 25, 1982—Winston Carlock was referred to

Prepakt to operate a grout pump for one to two

weeks. The job lasted 61 hours. Carlock had not

signed the out-of-work list and jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Creel March 15, 1982

Reed March 16, 1982

Romero May 11, 1982

C. Edwards August 17, 1982

September 2, 1982—Edward Kemp was referred to

Andreco to operate a fork lift for one day. The job

lasted 416.5 hours. Kemp had not signed the out-of-

work list. He jumped:

Johnson December 8, 1981

Rowsey December 10, 1981

Creel March 15, 1982

Reed March 16, 1982

Romero May 11, 1982

Janise August 26, 1982

Hatch August 27, 1982

26.

27.

28.

29.

A-83

September 8, 1982—Clyde Shearin was referred to

Process Piping as a master mechanic on a job which

lasted 144 hours . He had not signed the out-of-work

list and he jumped:

Rowsey December 10, 1981

Creel March 15, 1982

Reed March 16, 1982

Romero May 11, 1982

Janise August 26, 1982

Hatch August 27, 1982

September 20, 1982—Howard Wash was referred to

Process Piping as a master mechanic for a two to

three day job which lasted 762.5 hours. He had not

signed the out-of-work list and jumped:

Johnson December 8, 1981

Creel March 15, 1982

Romero May 11, 1982

Janise August 26, 1982

October 26, '982—Clyde Shearin was referred to

Marley Cooling Towers to operate a cherry picker

for a one week job which lasted 272 hours. He sign-

ed the out-of-work list October 11, 1982 and

jumped:

Creel March 15, 1982

Janise August 26, 1982

Hatch September 24, 1982

Rowsey September 28, 1982

Reed October 4, 1982

December 6, 1982—Carl McNabb was referred to In-

dustrial Construction Co. for a two to three day job

30.

31.

jumped:

Creel

Janise

Hatch

Rowsey

Reed

C. Edwards

Taliaferro

Romero

Guidry

R. Edwards

A-84

as a unit operator. The job lasted 411 hours. He

signed the out-of-work list December 2, 1982 and

March 15, 1982

August 26, 1982

September 24, 1982

September 28, 1982

October 4, 1982

October 12, 1982

October 12, 1982

November 2, 1982

November 9, 1982

November 15, 1982

January 7, 1983—Clyde Shearin was referred to

Jacobs and Wiese as a master mechanic on a job

which lasted 957 hours. He signed the out-of-work

list December 15, 1982 and jumped:

Creel

Janise

Hatch

Rowsey

C. Edwards

Taliaferro

Romero

Guidry

R. Edwards

March 15, 1982

August 26, 1982

September 24, 1982

September 28, 1982

October 12, 1982

October 12, 1982

November 2, 1982

November 9, 1982

November 15, 1982

January 11, 1983—Winston Carlock was referred to

Jacobs and Wiese to operate a cherry picker for a

one to two day job which lasted 326 hours. He had

not signed the out-of-work list and jumped:

32.

33.

Creel

Janise

Hatch

Rowsey

C. Edwards

Taliaterro

Romero

Guidry

R. Edwards

A-85

March 15, 1982

August 26, 1982

September 24, 1982

September 28, 1982

October 12, 1982

October 12, 1982

November 2, 1982

November 9, 1982

November 15, 1982

January 17, 1983—David George was referred to

WEBCO as a relief operator for one to two days.

The job lasted 196 hours. He had not signed the out-

of-work list and jumped:

Creel

Janise

Rowsey

C. Edwards

Taliaferro

Romero

Guidry

R. Edwards

March 15, 1982

August 26, 1982

September 28, 1982

October 12, 1982

October 12, 1982

November 2, 1982

November 9, 1982

Nevember 15, 1982

January 25, 1983—Edward Kemp was referred to

Nicholls Construction Co. to operate a cherry picker

for a one to day job which lasted 115 hours. He had

not signed the out-of-work list. He jumped:

Creel

J anise

Rowsey

C. Edwards

Taliaferro

Romero

Guidry

R. Edwards

March 15, 1982

August 26, 1982

September 28, 1982

October 12, 1982

October 12, 1982

November 2, 1982

November 9, 1982

November 15, 1982

34.

35.

36.

A-86

January 26, 1983—Andy Chicano was referred to

NADCO as a mechanic for one to two days. The job

lasted 1257 hours. Chacano signed the out-of-work

list January 18, 1983 and jumped:

Creel March 15, 1982

Janise August 26, 1982

Rowsey September 28, 1982

Taliaferro October 12, 1982

Romero November 2, 1982

Guidry November 9, 1982

R. Edwards November 15, 1982

February 6, 1983—Houston Byrd was referred to

SIPI to operate a cherry picker on a two to three

day job which lasted 289.5 hours. He signed the out-

of-work list October 11, 1982 and jumped:

Creel March 15, 1982

Janise August 26, 1982

Rowsey September 28, 1982

February 10, 1983—Carl McNabb was referred to

NADCO to operate a cherry picker for a one to two

day job which lasted 471 hours. He signed the out-

of-work list February 9, 1983 and jumped:

Janise August 26, 1982

Rowsey September 28, 1982

Taliaferro October 12, 198?

Romero November 2 1982

Guidry November §&, 1982

R. Edwards November 15, 1982

February 15, 1983—Howard Wash was referred to

Jacob & Wiese to operate a backhoe for a one-day

38.

39.

40.

A-87

job which lasted 272 hours. He signed the out-of-

work list February 9, 1983 and jumped:

Janise August 26, 1982

Rowsey September 28, 1982

Taliaferro October 12, 1982

Romero November 2, 1982

Guidry November 9, 1982

R. Edwards November 15, !982

March 1, 1983—Edward Kemp was referred to

Petro-Chemical to operate a cherry picker on a two

to three day job which lasted 56 hours. He had not

signed the out-of-work list and he jumped:

Janise August 26, 1982

Rowsey September 28, 1982

Taliaferro October 12, 1982

Romero November 2. 1982

Guidry November 9, 1982

R. Edwards November 15, 1982

March 1, 1983—Melvin Duplechain was referred to

Petro-Chemical to operate a cherry picker for a two

to three day job which lasted 377 hours. He signed

the out-of-work list September 9, 1982 and jumped:

Janise August 26, 1982

March 4, 1983—Mike Duplechain was referred to

Nichols to operate a crane for a three to four day job

which lasted 207 hours. He had not signed the out-

of-work list and jumped:

Janise August 26, 1982

Rowsey September 28, 1982

41.

43.

A-88

Taliaferro October 12, 1982

Romero November 2, 1982

Guidry November 9, 1982

R. Edwards November 15, 1982

March 4, 1983—Grady Cauthron was referred to

Nichols as a master mechanic for a four-week job.

He signed the pipeline out-of-work list February 7,

1983 and jumped:

Taliaferro October 13, 1982

Romero November 2, 1982

Guidry November 9, 1982

R. Edwards November 15, 1982

March 7, 1983—Howard Wash was referred to

NADCO as a master mechanic for a one to two day

job which lasted 222.5 hours. He signed the out-of-

work list March 2, 1983 and jumped:

Janise August 26, 1982

Rowsey September 28, 1982

Taliaferro October 12, 1982

Romero November 2, 1982

Guidry November 9, 1982

R. Edwards November 15, 1982

March 11, 1983—Edward Kemp was referred to Vin-

cent Construction Co. as a cherry picker operator

for a one to two day job which lasted 103 hours. He

had not signed the out-of-work list and he jumped:

Janice August 26, 1982

Rowsey September 28, 1982

‘Taliaferro October 12, 1982

44.

45.

46.

A-89

Romero November 2, 1982

Guidry September 9, 1982

R. Edwards November 15, 1983

March 21, 1983—Elmer Grantham was referred to

Dolphin Construction Co. for the duration of the

project and worked 496 hours. He signed the out-of-

work list on March 19, 1983 and jumped:

Janise August 26, 1982

Rowsey September 28, 1982

Taliaferro October 12, 1982

Romero _ November 2, 1982

Guidry / November 9, 1982

R. Edwards November 15, 1982

April 4, 1983—Willard Carlock, Jr. was referred to

Industrial Construction Co. as a master mechanic

and worked 226 hours. He signed the out:of-work

list October 4, 1982 and jumped:

Janise August 26, 1982

Rowsey September 28, 1982

April 5, 1983—-Linda Young was referred to Ellerbe

Construction Co. and worked 928 hours. Her refer-

ral slip indicated employment by recall, but her

employment records show she was ineligible for

recall by Ellerbe, having last worked for this

employer in May of 1982 for 52 hours. She signed

the out-of-work list March 14, 1983 and jumped:

Janise August 26, 1982

Rowsey September 280, 1982

Taliaferro October 12, 1982

Romero November 2, 1982

47.

Guidry

R. Edwards

April 19, 1983—Edward Kemp was referred to

Dolphin Construction Co. to operate a dozer for the

duration of the job which lasted 101.5 hours. He had

not signed the out-of-work list and jumped:

Rowsey

Taliaferro

Romero

Guidry

R. Edwards

Hatch

Reed

Johnson

C. Edwards

Janise

a

A-90

November 9, 1982 i

November 15, 1982

September 28, 1982

October 12, 1982

November 2, 1982

November 9, 1982

November 15, 1982

March 16, 1983

March 17, 1983

March 23, 1983

April 4, 1983

April 15, 1983 |

A-91

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

FILED

SEP 09 1987

ROBERT GUIDRY

VS CIVIL ACTION

NO. 83-1141-LC

: (Judge

INTERNATIONAL UNION OF: Earl E. Vernon)

OPERATING ENGINEERS,

LOCAL 406, ET Al

JUDGMENT

After trial of this matter, the court has this date

rendered its Opinion. In accordance with that Opinion, it is

hereby:

ORDERED, ADJUDGED AND DECREED THAT

THERE BE JUDGMENT IN FAVOR OF PLAINTIFF

ROBERT GUIDRY, SR. and against defendants INTER-

NATIONAL UNION OF OPERATING ENGINEERS,

LOCAL 406; WI. LARD S. CARLOCK, SR.; COLUMBUS

J. LAIRD; PETER BABIN, III; and DON SCHIRO in the

amount of FIVE THOUSAND THREE HUNDRED TEN

AND 50/100 DOLLARS ($5,310.50) for loss wages and

TWENTY THOUSAND DOLLARS ($20,000) for mental

pain and suffering.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment in favor of ROBERT

A-92

GUIDRY, SR. and against INTERNATIONAL UNION

OF OPERATING ENGINEERS, LOCAL 406 awarding

punitive damages in the amount of TEN THOUSAND

DOLLARS ($10,000) and that there be judgment in favor

of ROBERT GUIDRY, SR. and against PETER BABIN,

II] awarding punitive damages in the amount of ONE

THOUSAND DOLLARS ($1,000).

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment in favor of ROBERT

GUIDRY, SR. and against INTERNATIONAL UNION

OF OPERATING ENGINEERS, LOCAL 406 awarding

the plaintiff reasonable attorneys’ fees in an amount to be

agreed upon by the parties. If agreement cannot be reach-

ed, the court will set a hearing to decide the matter at a

later date.

IT IS FURTHER ORDERED that INTERNA-

TIONAL UNION OF OPERATING ENGINEERS,

LOCAL 406 reinstate ROBERT GUIDRY, SR. of full

union membership upon payment by ROBERT GUIDRY,

SR. of all back dues, and that INTERNATIONAL UNION

OF OPERATING ENGINEERS, LOCAL 406 be pro-

hibited from bringing further disciplinary actions against

ROBERT GUIDRY, SR. for his crossing a union picket

line in August, 1983.

THUS DONE AND SIGNED at Lake Charles,

Louisiana this 9th day of September, 1987.

/s/ Earl E. Veron

EARL E. VERON

UNITED STATES DISTRICT JUDGE

A-93

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

FILED

SEP 26 1989

No. 87-4733

ROBERT GUIDRY,

Plaintiff-Appellee

Cross-Appellant,

versus

INTERNATIONAL UNION OF

OPERATING ENGINEERS, LOCAL

406, ET AL.,

Defendants-Appellants

Cross-Appellees.

Appeal from the United States District Court for the

Western District of Louisiana

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion August 29, 5 Cir., 1989, F.2d )

( SEPTEMBER 28, 1989 )

Before RUBIN, GARZA and KING, Circuit Judges.

A-94

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no member

of this panel nor Judge in regular active service on the

Court having requested that the Court be polled on rehear-

ing en banc, (Federal Rules of Appellate Procedure and

Local Rule 35) the Suggestion for Rehearing En Banc is

DENIED. ~~

( ) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of

the Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it,

(Federal Rules of Appellate Procedure and Local Rule 35)

the Suggesstion for Re-hearing En Banc is also DENIED.

( } A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

s Illegible

United States Circuit Judge

A-95

APPENDIX E

RELEVANT STATUTES CITED

§ 411. Bill of rights; constitution and bylaws of labor

organizations

(aX1) Equal rights

Every member of a labor orgainization shall have

equal rights and privileges within such orgainization to

nominate candidates, to vote in elections or referendums of

the labor organization, to attend membership meetings,

and to participate in the deliberations and voting upon the

business of such meetings, subject to reasonable rules and

regulations in such organization's constitution and bylaws.

(2) Freedom of speech and assembly

Every member of any labor organization shall have

the right to meet and assemble freely with other members:

and to express any views, arguments, or opinions; and to

express at meetings of the labor organization his views.

upon candidates in an election of the labor organization or

upon any business properly before the meeting, subject to

the organization's established and reasonable rules pertain-

ing to the conduct of meetings: Provided, That nothing

herein shall be construed to impair the right of a labor

organization to adopt and enforce reasonable rules as to the

responsibility of every member toward the organization as

an institution and to his refraining from conduct that

would interfere with its performance of its legal or contrac-

tual obligations.

(3) Dues, Initiation fees, and assessments

Except in the case of a federation of national or inter-

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national labor organizations, the rates of dues and initia-

tion fees payable by members of any labor organization in

effect on September 14, 1959 shall not be increased, and no

general or special assessment shall be levied upon such

members, except—

(A) in the case of a local labor organization, (i)

by majority vote by secret ballot of the members

in good standing voting at a general or special

membership meeting, after reasonable notice of

the intention to vote upon such question, or (ii) by

majority vote of the members in good standing

voting in a membership referendum conducted by

secret ballot; or

(B) in the case of a labor organization, other

than a local labor organization or a federation of

national or international labor organizations, (i)

by majority vote of the delegates voting at a |

regular convention, or at a special convention of

such labor organization held upon not less than

thirty days’ written notice to the principal office

of each local or constituent labor organization en-

titled to such notice, or (ii) by majority vote of the

members in good standing of such labor organiza-

tion voting in a membership referendum con-

ducted by secret ballot, or (iii) by majority vote of

the members of the executive board or similar

governing body of such labor organization, pur-

suant to express authority contained in the con-

stitution and bylaws of such labor organization:

Provided, That such action on the part of the ex-

ecutive board or similar governing body shall be

effective only until the next regular convention of

such labor organization.

(4) Protection of right to sue

No labor organization shall limit the right of any

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member thereof to institute an action in any court, or in a

proceeding before any administrative agency, irrespective

of whether or not the labor organization or its officers are

named as defendants or respondents in such action or pro-

ceeding, or the right of any member of a labor organization

to appear as a witness in any judicial, administrative, or

legislative proceeding, or to petition any legislature or to

communicate with any legislator: Provided, That any such

member may be required to exhaust reasonable hearing

procedures (but not to exceed a four-month lapse of time)

within such organization, before instituting legal or ad-

ministrative proceedings against such organizations or any

officer thereof: And provided further, That no interested

employer or employer association shall directly or indirect-

ly finance, encourage, or participate in, except as a party,

any such action, proceeding, appearance, or petition.

(5) Safeguards against improper disciplinary action

No member of any labor organization may be fined,

suspended, expelled, or otherwise disciplined except for

nonpayment of dues by such organization or by any officer

thereof unless such member has been (A) served with writ-

ten specific charges: (B) given a reasonable time to prepare

his defense; (C) afforded a full and fair hearing.

(b) Invalidity of constitution and bylaws

Any provision of the constitution and bylaws of any

labor organization which is inconsistent with the provi-

sions of this section shall be of no force or effect.

(Pub.L. 86-257, Title I, § 101, Sept. 14, 1959, 73 Stat. 522.)

§ 412. Civil action for infringment of rights; jurisdiction

Any person whose rights secured by the provisions

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of this subchapter have been infringed by any violation of

this subchapter may bring a civil action in a district court

of the United States for such relief (including injunctions)

as may be appropriate. Any such action against a labor

organization shall be brought in the district court of the

United States for the district where the alleged violation

occurred, or where the principal office of such labor

organization is located.

(Pub.L. 86-257, Title I, § 102, Sept. 14, 1959, 73 Stat. 523.)

§ 529. Prohibition on certain discipline by labor

organization

It shall be unlawful for any labor organization, or

any officer, agent, shop steward, or other representative of

a labor organization, or any employee thereof to fine, sus-

pend, expel, or otherwise discipline any of its members for

exercising any right to which he is entitled under the provi-

sions of this chapter. The provisions of section 412 of this

title shall be applicable in the enforcement of this section.

(Pub.L. 86-257, Titie VI, § 609, Sept. 14, 1959, 73 Stat. 541)