Appendix — International Union of Operating Engineers, Local 18 v. Murphy

——

? , -

85 e 7 1 07 a ode tg

DEC 27 1985

No.

Ss IOL, JR.

CLERK

In the Supreme Court of the United States

October Term, 1985

INTERNATIONAL UNION OF OPERATING

ENGINEERS, LOCAL 18, et al.,

Petitioners,

VS.

WILLIAM F. MURPHY,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

WILLIAM FapEL, Counsel of Record

FRANCES M. GorTe’, On Brief

WulLicER, Fape, & BEYER

1340 Sumner Court

The Brownell Building

Cleveland, Ohio 44115

(216) 781-7777

Counsel for Petitioners

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

TABLE OF CONTENTS

Opinion, Findings of Fact and Conclusions of Law of

the United States District Court (July 18, 1978) .... A-1

Post-Judgment Memorandum Opinion and Order of the

United States District Court (October 4, 1982) ....A-377

Opinion of the United States Court of Appeals for the

Sixth Circuit ; A-466

Statutes Involved:

29 U.S.C. § 411(a) (1), (2) and (5) ..A-504

29 U.S.C. § 412 sosneeieelastidanacantebtinandibpiaagecneas -A-505

42 U.S.C. § 1988 A-505

Supplemental Brief of Plaintiff-Appellee/Cross-Appel-

Bes I SU ashelidiiosisisessinscsonsiiscccoipccencanipiesiconoaphiaeccansiuaceaiaied A-507

Supplemental Affidavit in Support of Plaintiff's Re-

quest for Counsel Fees .. A-509

Reply to Defendants’ Brief i in Oueseiin to Plaintiff's

Motion for Counsel Fees, p. 11 -..22..22...-..2...0-0e-000e A-517

beesc

A-1l

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIAM F. MURPHY,

Plaintiff No. C 73-1336

)

)

)

)

Vv. )PREFACE TO FINDINGS

)OF FACT AND CONCLU-

LOCAL UNION NO. 18, )SIONS OF LAW

18A, 18B, 18C and )

18RA, INTERNATIONAL )

UNION OF OPERATING )

ENGINEERS, et al., )

)

)

Detendants

LAMBROS, DISTRICT JUDGE

This lawsuit involves a confron-

tation between a union member and his

union and its ofiicers. A lengthy com-

position follows because it became

necessary to relate the detailed opera-

tions of the union regarding its job

referral system to the particulars of

the relationship between the union and

its members.

The lengthy evidentiary record

A-2

discloses many instances of aberrational

behavior in the management of the union,

which adversely affected the plaintiff

and other members. It is my hope that

these errors may now be corrected so

that they do not become, as a wise man

once said, mistakes.

Further, it is my hope that this

lawsuit and the fruit it bears today will

not serve as an instrument to disrupt

this union; but rather, that it effec-

tuates the concerns of Congress and the

congressional effort to achieve labor

reform through the years.

It is my ultimate desire that

this case will serve to instill a demo-

cratic spirit that will strengthen this

union, not only as an effective bar-

gaining agent for its members, but also

as an organization which assures to its

members, a full and fair opportunity to

a

A-3

participate in its governing and admini-

sStrative processes.

A-4

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIAM F. MURPHY, No. C 73-1336

)

)

Plaintiff )

)

Vv. )FINDINGS OF FACT

)AND CONCLUSIONS

LOCAL UNION NO. 18, )OF LAW

18A, 18B, 18C and )

18RA, INTERNATIONAL )

UNION OF OPERATING )

ENGINEERS, et al., )

)

Defendants )

LAMBROS, DISTRICT JUDGE

i INTRODUCTION

Plaintiff instituted this action

alleging that defendants have violated

Sections 101 and 102 of the Labor Manage-

ment Reporting and Disclosure Act of

1959, 29 U.S.C. $8411, 412.4/ This case

came on for trial to the Court on Feb-

ruary 26, 1976 and continued until

March 16, 1976. At this time, in defe-

rence to the Court's calendar, counsel

A-5

agreed to complete the trial of this

action by means of prerecorded video tape

testimony .4/ PRVTT began March 17, 1976

and concluded January 4, 19/77.

At the close of his case-in-chief

plaintiff amended his complaint to state

claims under 42 U.S.C. 881981, 1985(3).

Plaintiff further amended his complaint

at the conclusion of trial to allege

violations of 29 U.S.C. $8185, 414, 481

(c), 501, 523, 529, 530, and to state

eight pendant state law claims. Normally,

the Court would prohibit amendments of

the scope proposed by plaintiff at the

close of trial. However, the use of

PRVTT as the trial media provided de-

fendants ample opportunity to reopen

their case in order to present further

evidence regarding these amendments, and

therefore defendants have not been

prejudiced thereby.

itn

ee ee eee |

A-6

Prior to commencing PRVTT, the

Court ruled on the admissibility of those

exhibits which had been introduced into

evidence during the traditional portion

of this trial. At the close of PRVTT,

counsel moved the admission of their

remaining exhibits. The Court having

considered these exhibits, 96 (a-h) -102

admits into evidence:

mC ERTS

4 BAF, &223, 222,. 124-128, 337-

Defendants’ Exhibits A-Z, AA-YY,

AAA-ZZZ, AB-AZ, BA.

Additionally, the Court admits into evi-

dence the work records of certain opera-

tion engineers set forth in item one of

Plaintiff's exhibit 140.4/

Il. THE PARTIES2/

1. Plaintiff has been a member

of defendant Local 18, International

A-7

6 /

Union of Operating Engineers—' since

1964. He is a resident of Orwell, Ohio

and within the jurisdiction of District

One of Local 18. Plaintiff has been

associated with the "dissident movement"

of Local 18 since 1970.

zs Defendant Local 18, 18A, 18B,

18C, i8G and 1sral/ is a labor organiza-

tion engaged in an industry affecting

commerce within the context of 29 U.S.C.

8402(i), and is a constituent division

of the International Union of Operating

Engineers .8/

3a. Defendant John Possehl ,2/ a

member of the International since 1936,

has been a member of Local 18 since 1940

when he was designated Assistant Inter-

national Representative to Frank P.

Converse, then International Representa-

tive, Business Manager, and President

of Local 18.

A-8

b. Possehl has served Local 18

as Assistant Business Manager (1959-

1967), President (1967-1971), and Busi-

ness Manager (1967 to date). Possehl has

also maintained his status with the

International and is presently the Third

Vice President of the International.

c. Possehl has additionally

served in varying capacities with certain

councils, committees, labor organiza-

tions, trusts and other entities with

which Local 18 has been affiliated or

has maintained a relationship.

d. Possehl has been a salaried

employee of the International since 1940,

and of Local 18 since at least 1959.

4a. Defendant Charles Ruther-

ford+2/ served as President of Local 18

from 1971 wntil 1975

b. At various times from 1948

through 1975, Rutherford has been a

—— :

A-9

salaried employee of Local 18, serving

as Business Agent and as District Repre-

sentative of District Three and as Spe-

cial Representative of the Business

Manager.

5a. Defendant John Frank+!/ has

served as Vice President of Local 18

since 1971.

b. Frank has been a salaried

employee of Local 18 since 1962, serving

as Business Agent of District One from

1962 until 1968, and as District Repre-

sentative of District Two from 1968 to

date.

6a. Defendant Frank Miller2/

has served as Conductor of Local 18

since 1971.

b. Miller has been a salaried

employee of Local 18 since 1962, serving

as Special Representative of the Business

Manager.

——————

A-10

7. Defendant S.A. Blair23/ has

served as Chairman of the Election Com-

mittee of Local 18 since 1971.

IIil. STRUCTURE OF LOCAL 18

A. JURISDICTION AND MEMBERSHIP

8. Local 18 has craft jurisdic-

tion over stationary, hoisting, and

portable operating engineers. Local 18

has territorial jurisdiction over 85

counties in Ohio and 4 counties in Ken-

tucky.

9. There are approximately

16,000 members of Local 18.

B. ADMINISTRATION

10a. Local 18 is subdivided into

the following working classifications

for administrative purposes:

lL. Local 18: journeymen who

have belonged to the Local for

four years or more; commonly

referred to as the “parent

local”;

4. Local 18-A: apprentices

-jQ-

A-11

undergoing on-the-job training

under the supervision of ex-

perienced operating engineers;

3. Local 18-B: new members who

have joined the Local through

the recruiting efforts of agents

in the field,

4. Local 18-C: operating en-

gineers engaged in shop or

quarry activities;

5. Local 18-G: operating en-

gineers employed in the public

sector;

6. Local 18-RA: registered

apprentices; differs from Local

18-A due to the requirements of

formal classroom instruction in

the operation of equipment in

addition to on-the-job training.

b. Operating Engineers may only

transfer between the above ratings by

changing their book.

lla. Local 18 is divided into six

administrative districts. Each district

is responsible for the supervision of

designated counties and operates out of

a central office in performing it:

duties The respective districts and

= —————————e=

A-12

the cities in which their central offices

are located are set forth below:

ot lag Yam a er Cleveland

DESEetet 2s io «ess ee Toledo

oe ta) Fo 2 eee Columbus

DESETIicE 4.6. scces Dayton

DaSCGaGt Deccesesar Cincinnati

eT ah ) a ae a Akron

b. The central office in each dis-

trict is under the direction of a Dis-

trict Representative, who is in turn

assisted by Business Agents and a number

of clerical personnel. District Repre-

sentatives, Business Agents, and clerical

employees are hired and salaried by, and

serve at the discretion of, the Business

Manager.

c. Pursuant to the numerous colle;

tive bargaining agreements to which

Local 18 is a party, employment reterral

facilities are maintained in each centra

office through which contractors may ri

quest and obtain the ser ;

— |

A-13

ting engineers. 14/ Wage differentials

and other employment conditions vary per

district. Applicants for referral may

register for employment in any district

of Local 18, setting forth on their re-

gistration card the equipment they are

qualified to operate. However, appli-

cants are not permitted to register in

more than one district at any given

time. Nor are registrations accepted

from applicants who are otherwise gain-

fully employed, or not immediately avail-

able for work. Applicants are regis-

tered in order of application, and

classified in the following priority

groups, commonly called "decks", for

referral purposes:

1. Group A: applicants who have

worked as operating engineers at

least 120 days per year during

each of the four preceeding

years, and have been employed for

at least twelve months during

that four year period on work

on mit

A-14

defined and encompassed by the

collective bargaining agreement

of the requesting contractor;

2. Group B: is identical in all

aspects with Group A, except that

the twelve month period required

under Group A is decreased to six

months ;

i Group C: applicants who have

worked as operating engineers at

least sixty days per year during

each of the two preceeding years;

4. Group D: applicants who have

worked as operating engineers at

least thirty days during the pre-

ceeding year;

-P Group E: all other appli-

cants except apprentices;

6. Group F. all applicants who

are apprentices;

j. Group G: all applicants who

are temporary employees.

d. Contractor requests are pro-

cessed by dispatchers in the central

Applicants are referred in order

of registration, beginning with “deck A”

and progressing in succession through

“deck E

Apprentices are referred in

p=. wT

A-15

order of their registration in "deck F".

e. When an applicant becomes em-

ployed, his name is removed from the

deck as soon as he has worked a cumula-

tive total of twelve days within the

ninety day period following his registra-

tion for employment .22/

e If an applicant is employed

for less than twelve cumulative working

days in said sixty day period, he is

restored to his previous position in the

deck when such employment terminates.

g- An applicant may not refuse

referral to employment except for good

cause, but, in any event, such refusals

shall be limited to two consecutive re-

fusals. An applicant who refuses a job

referral for the second consecutive time

loses his position in the deck, and his

card is placed at the bottom of the

deck. 29/

a8 Se

A-16

h. Applicants must renew their

registration with the central oftice

every thirty days in order to maintain

their place in the referral deck.

Contractors may request the

be

referral of specific operating engineer

by name, irrespective of deck position.

? Local 18 is required to u

its best effort to notify applicant

nese a . 1 mer | arey — _— -* "4 : ‘

aval lab le Clip 4 "£2 -aee JV I init LES « DU

4 re

is not responsible for faiiure

UC. OFFICERS, DELEGATES, BOARDS AND

ELECTIONS

, ; 7 ¢ > > ,

i | cai id ¢ e I j t ¢

titutiona: iP icers D ma Lty ‘

the enctir4rge nemMmoe I it rié a onc?

trices sti rTnei ré -. ’ ‘

11 scuU eqa bveilow

7 1

'c. : :

- ra e ’ _

ne } Manag« tr VAS _ ict

A-17

the business and affairs of Local 18.

His powers and responsibilities include,

but are not limited to:

a. Negotiation and enforcement

of all collective bargaining

contracts;

b. Initiate, defend, or settle

legal or administrative procee-

dings;

c. Employ professional and/or

technical personnel,

d. Appoint or terminate any and

all representatives, agents,

assistants, or employees of Local

18;

e. Set the salaries of, and au-

thorize the incurrence of expen-

ses by, all representatives,

agents, assistants, or employees

of Local 18;

f. Act through any duly autho-

rized and appointed deputy;

g- Manage all real and chattel

property of Local 18;

h. Act as editor of the “Buckeye

Engineer", the monthly magazine

of Local 18;

i. Appoint the chairmen of the

Election, By-laws and Referral

CE

A-18

Committees, and; appoint the mem-

bers of the Referral Committee;

> Determine the number of dele-

gates to the annual International

Convention;

k. Appoint or remove delegates

to all conventions, councils, or-

ganizations, or trusts, to which

Local 18 is entitled to represen-

tation, except in those instances

prohibited by law, the Interna-

tional Constitution, or the

By-laws of Local 18;

1. Attend regular semi-annual

meetings and district meetings.

2. PRESIDENT. The President is

the presiding officer of Local 18. His

duties include, but are not limited to:

a. Presiding at all meetings;

determine questions of order

therein subject to an appeal to

the Local; cast the deciding vote

in the event of a tie, and, de-

termine the credentials of any

member ;

b. Enforce the Constitution,

Laws, Rules, Ritual, and Customs

of Local 18;

c. Authorize in conjunction with

the Treasurer the disposition of

=) *

A-19

funds ;

d. Appoint all committees unless

otherwise provided for.

3. VICE PRESIDENT. The Vice

President assists the President, fills

the President's place in his absence,

and performs such other duties customary

to the oftice.

4. RECORDING-CORRESPONDING SEC-

RETARY. The Recording-

Corresponding Secretary maintains the

records, minutes and correspondence of

Local 18, and conducts any laison with

the International regarding such records.

The Recording-Corresponding Secretary is

further responsible for various duties

set forth in the International Constitu-

tion.

5. FINANCIAL SECRETARY. The

financial Secretary receives all monies

and funds paid to Local 18, delivers

= =

A-20

such monies and funds to the Treasurer,

and maintains records of such transac~-

tions.

6. TREASURER. The Treasurer re-

ceives all funds coliected by the Finan-

cial Secretary, makes authorized dis-

bursements, maintains records of such

transactions, and reports the same to

the Local when called upon to do so.

7. CONDUCTOR. The Conductor ex-

amines all members present at meetings

and ascertains that such members are in

good standing with the Local. The Con-

ductor is further responsible for all

initiation ceremonies.

8. GUARD. The Guard controls

the doors at meetings and makes certain

that none but members in good standing

with the proper password enter, and that

none retire without the consent oi the

x

>

;

21

President.

9. TRUSTEES. There are three

Trustees who supervise all funds and

property of Local 18 under such instruc-

tions as they receive from the Local.

10. AUDITORS. There are three

Auditors who audit the books and accounts

of the Recording-Corresponding Secretary,

Financial Secretary, and Treasurer, and

any other fiscal officer or representa-

tive, and report the same to the member-

ship when calied upon to do so.

b. The first six constitutional

officers are commonly referred to as the

"line" officers. All of the constitu-

tional officers serve without compensa-

tion for three year terms.

13. The line officers are by

virtue of their offices delegates at

large to the International Convention.

x

a — = = - eg

A-22

All other delegates and aiternates to the

international Comvent ion afte nominated

vention, with the election being held by

weil referendum in February.

ite, During these periods when the

Generel membership of Level 16 is mot im

CORVERL IO” OF IM Sesion the pawere of

the leosl ere vested im the Excout ive

Melee eee Fee eH Of ae eae

Mersiete of june 46 Se Tee a

ve

A-23

members serve without compensation for 4

period of three years.

©. Prier te 1968 District Kepre-

sentatives and/or Business Agents were

permitted to held positions om the Execu-

tive Boeré. This preetice wes terminated

by Possehl ia 1966.

ide. Just a¢ the Beecutive Boerd

operates by end for the Leoel genbership

beter soociome, the feepective AOviaory

hoerds of ech Gietriet ere weeted with

ihe peers of Uhe Chetriet henberehip

ee

via) eerGe condeet @)) pre deset

tee ong? o bere chetged e651 viedo:

(hone of eothele C0888 of the beterme:

Sees Geer oat kom

4 teh AMS are Meme sme see

i

hie oes Keer e ae te Beene aes aati

or

A-24

from each collective bargaining unit of

Local 18. Advisory Board members serve

without compensation for 4 period of

three years.

ie. Candidates for the office of

Business Manager must be qualified under

the LDA and quest heve geinteined their

nembership ia Leesl 18 er its subdiwi-

siems fer @ peried of three years pre-

eeeding the election without beimg ta

Gefeult is the perpmewt of Gece for gore

thee thirty Geye ef any time Gering thie

et bot

> Contidetes for oop office

oithes Chet Dee iteee Clee Get Gued

(he (eyelfenete e6f Tere dieoe, ted

oie for @ perhet of oe pee

¢ Phe be qnprweneeteds 897%

0) Sees of he pee ened eee

ee ee

> Be:

A-25

fer Local 18 offices. Additionally, can-

éidates were reqiired to maintain con-

tinuous good stading a5 to the payments

ef dues, there bing no “grace” period

provided at thet tim.

17. Waeeawies in the comstite-

tional offices, Executive Board, or Aé-

visery Beard ar filled for the remsinéer

ef the wmeapire term by mejoriiy vote

eof the “lise” elicers.

ie. te eoordence with the by-lews

ef tecal 16, th election of comstite-

siewal officers and Eeeout ive Soeré tem

bere io conducted by oF Cleet ior Comet:

see Comeietiagel tee eleeted meomthess

fram eect Gietset plese the appoint of

cheiemen of Uh Bustnees Seneges = the

how Comet leer e fFe Ree ee od

elected by seeet Belket Apre? ©"

oul elect ae coe = (OT aeete Ont sents

> fb:

A-27

D. DISCIPLINARY PROCEEDINGS

21. Local 18 may discipline, fine,

suspend or expel its members for viola-

tions of Article XXIII, International

Constitution, and/or its By-laws. Pre-

trial and trial procedures regarding the

prosecution of internal disciplinary se-

tioms are set forth in the Internet ional

Comstitution and the By-laws of Loeal 18

22. Diseiplimery setions are ia-

stituted through the filing of writtes

‘het @ee with the Recoreing Cor respond ing

Secretary. See cherges meet cite te

the ertiele, seetion, or rele alleged to

hove beew whelete®? ent quet be epertfic,

elet ing €leetly, Goreeioely, ent eoowe:

tely (he (ite, Place, Hotere, Oe GFF:

ae eee Of Che ef leonee elleget fie

a ee ee ee

en et iae Ge Bet enier of ihe chet gee

ea

alias

oe

A-31

tional.

E. MEETINGS

25. Meetings of the general sen-

bership of Local 18 are held in January

and June of each year .42/

Such seet ings

are customarily held in Columbus, Ohic.

When sitting as 4 body, the general sen-

bership exercises 411 power vested in

Local 18. The President of Local 18

presides over meetings of the general

nenbe t ship

26. District meetings are held in

the respective districts om the second

Monday of each gomth. When sitting a6

# body, the power of the district men-

bership is feetricted te:

(2) Meking reconmmendetions te

the Loeel or te the Executive

Roser.

(>) tmitiating legislation te

ike Lowel.

tt. Cleat iy Hebets to the

ae

A-33

IV. POLITICAL FACTIONS

30a. The incumbent officers of

Local 18 and their supporters are known

as the “hall group.”

b. The members of Local 18 who

publicly oppose the candidates and poli-

cies of the hall group are known as

“rebels” or “dissidents.”

la. The candidates and policies

of the hall group 4re promoted by the

“pank and File Committee”, consisting of

members recruited by the District Repre-

sentatives and/or Business Agents of

each district. Members of the Committee

nominate the candicates endorsed by the

hall group, raise funds for campaign

purposes, and assist in organizing anc

conducting the campaigns of endorsed

f andidat cs

A-34

confederation of members seeking certain

changes in the structure and operation

of Local 18. These changes include:

l. Election of Business Agents;

é. Improvement of member

rights;

>. Improvement in the pension

and welfare plan;

j

4. Stricter enforcement of

collective bargaining contracts;

-- stricter entorcement of

Safety rules.

c. Although the rebel movement

-‘Cive in each district, its neucleus

lies in District Two

i The rebel movement of Loca]

5 nha peen if existence ince ‘ t

5 rhe core members of the movement

nave been the Shimman br: thers, Walter

Williar ick and Ervi f District

iw Over the yea t hie ement ha

eased if Tt j { | @»y mae

ft

A-35

other districts. By 1968, the Rebels

had approximateiy 350 members in District

Two alone, the membership being reflected

in a roster maintained by rebel leaders.

18/ The dissident membership, however,

has not remained static. In 1968 a

major split occurred among che rebel

movement. As a result of that split

former dissidents, for example Ray Franx-

house and James McMahon ,22/ are now part

o. tne hall group.

e. Both the dissidents and the

hall group support their candidates and

policies in organized campaigns. Both

factions regularly meet to plan strategy

prior to key state, district, and board

meetings. Further, both factions pro-

mote fund-raising activities in order to

acquire operating capital.

FINDINGS OF FACT

os $5-

A-36

A. MEETINGS, INTIMIDATION AND VIOLENCE

32. Plaintiff became an operating

engineer in 1964. From 1964 to 1969,

plaintift was not allied with the rebel

movement. On the contrary, in 1965

plaintiff, at the behest of Frank, then

Business Agent of District One, attended

a rebel meeting in Mansfield, Ohio in a

surreptitious capacity in order two re-

port on rebel activity .22/ During this

period plaintiff also attended rank and

file meetings at the direction of

Frank .21/

33. Frank's antagonism toward the

dissidents was demonstrated to plaintiff

as early as 1965 at a District One

meeting at which plaintiff unassumedly

accepted some rebel literature being

distributed. Frank, who had observed

plaintiff taking the literature, immedia-

| ae

A-37

tely chastised plaintiff in the coarsest

and most vulgar of language. In res-

ponse, plaintiff immediately tore up the

literature, drawing approval from Frank

for such action. 22/

a. In 1969, Frank was appointed

District Representative of District Two

by Possehl.

35. In early 1970, plaintiff be-

gan having altercations with the District

One administration which eventually re-

sulted in plainitff's entering the rebel

faction. These altercations included:

a. A confrontation at April 13,

1970 District One meeting with

Anthony Mangano, master mecha-

nic, regarding Mangano's work,

habits and union loyalties.

b. Plaintiff was summoned to

appear before the Advisory

Board of District One on May 4,

1970 for conduct unbecoming an

operating engineer.24/ The

purported objectionable con-

duct of plaintiff consisted

ee

A-38

of plainitff's dispute with

Mangano, and plaintiff's hav-

ing written a letter to Hunter

Wharton, International Presi-

dent, alleging that "Bud" Con-

verse had acted as presiding

officer of the April 13, 1960

meeting while intoxicated.

Plaintiff refused to appear

before the Advisory Board. 25/

c. On May 1, 1970 plaintiff,

having failed to receive what

he considered to be an adequate

answer to his inquiries regard-

ing the state of certain col-

lective bargaining negotiations,

picketed the District One offi-

ces for seven days. 26/

36. From 1970 through May 8, 1972

plaintiff regularly attended District

One membership and Advisory Board meet-

ings, Executive Board meetings, and state

meeting as a member of the dissident

movement . 4//

37. Insofar as District One mem-

bership meetings are concerned, plain-

tiff has been afforded ample opportunity

to exercise his right to address the mem-

28/

bership. Although there is

A-39

testimony that plaintiff and other Dis-

trict One rebels have been denied the

right to speak at district meetings,

there is contradictory testimony of

equal credibility that members of Dis-

trict One have neither been refused

recognition by the chair, nor denied

the right to speak upon being recog-

nized. 22/ Further, the minutes of Dis-

trict One membership meetings reflect

that plaintiff was permitted to address

the membership during the course of

business, and was generally treated in

a courteous fashion by the chair .22/

On certain occasions plaintiff actually

thanked the chair for an orderly meet-

31/

ing.=—' Plaintiff's right to speak at

union meetings has not been abrogated,

nor does it appear that other District

One rebels have been denied the right to

i

A-40

Speak at district meetings .>2/

38a. Plaintiff has had greater

difticulty in appearing before the Exe-

cutive Board and the District One Advi-

sory Board. In particular, plaintiff

refers to the Executive Board meeting

of June 27, 1970 at which those in at-

tendance allegedly began clapping at

Frank's signal whenever plaintifi at-

tempted to speak. However, upon cross-

examination plaintiff admitted that he

came to the meeting late, was not cer-

tain of the business under discussion at

the time of his arrival, immediately

attempted to speak, and was ''clapped

down" as being out of order. Plaintiff

further admits that he was permitted to

speak at this meeting during the appro-

priate order of business. 33/

b. In a similar fashion, plain-

+e

A-41

tiff has only been denied the opportu-

nity to address the Advisory Board of

District One in those instances in which

he attempted to address the board out of

order, or discuss business not properly

before the board. 24/

c. Considering the evidence, it

is concluded that plaintiff has not been

denied the right to address these boards.

33/

39. The rebels of District Two

have experienced much more difficulty in

speaking at meetings than their counter-

parts in District One. The antagonism

exhibited by Frank toward the District

One dissidents in 1965, carried over and

was equally apparent in District Two.

40. From 1971 until as recently

as 1975 the meetings of District Two

have been accented by the planned villi-

when

A-42

fication of rebels by members of the

hall group. Through scatalogical verbal

abuse Frank and his adherent s22/ dispa-

raged and humiliated disfavored engi-

neers before the district membership, in

an effort to intimidate and suppress any

opposition to administration policies.

The frequency and extreme nature of this

villification, which took place not only

on an individual basis in the union hall,

but also at board and district meetings,

refutes any inference that it was the re-

sult of mere political and/or ideological

differences. It is clear that this ver-

bal harassment was intended to be, and

functioned as an instrument of control.

Specific incidents of the tactic are dis-

cussed below.

a. District Two Ady} gory Board

meeting, April 19713//

ee Frank denounced Walter

sha

A-43 : mm)

Shimman and his -amily in

extremely vulgar esd

2. Frank threatened to eject

Walter Shimman from the mee-

ting, and told Shimman not to

call the hall in the future

as he would not be serviced.

b. District B¥9 meetings, June --

August, 1971.2°/ Frank called

Glenn Oberle,2?/ who was running

against Frank fer the office of

Vice President, a "commie", and

declared to the membership that

any engineer supporting Oberle

would be thrown out or starved

out of the unicn.

c. Election tally, District One

offices, August, 1971.40/ Frank

denounced Oberle, and stated he

would starve Oberle and the Shim-

man brothers out of the union.

d. District Two meeting, Septem-

ber, 1971.41/ Frank stated that

the dissidents had received too

many votes.

e. Districs Two meeting, Octo-

ber, 1971.44/ Frank villified

Oberle in scatalogical language

because Oberle had been selected

as master mechanic by the Braun

Construction Company. Frank sub-

sequently reported this villifi-

cation at the December 19/71 Dis-

trict Two Advisory Board meeting.

pi th

ci

ber,

A-44

Distri¢g Two meeting, Decem-

1971.43/

1. Frank called Oberle a

"fool" and stated that "these

small minds must be destroy-

ed."

2. James Grothaus, an Execu-

tive Board member, accused

Oberle of incest; Frank, pre-

siding officer, concurred in

these comments.

3. Frank addressed Ervin

Shimman in scatalogical lan-

guage regarding Shimman's

taking of notes during the

meeting.

4. Frank stated to the mem-

bership that there is "too

much democracy in Local 18",

and that "the opposition

would be destroyed."

5. Apprentices were told by

Ray Frankhouse how to vote on

certain issues. Those voting

contrary to instructions were

told by Frankhouse, State

Apprentice Coordinator, not

to ask for help from the hall.

Shortly after this meeting,

Frank commented that appren-

tices were tantamount to

slaves and should not oppose

the union or they could be

hurt .44

mY en

A-45

g.- In January, 1972, Frank indi-

cated to Oberle that Ken Delaney,

an Executive Board member from

District Two, would be asked to

resign his position and would be

“dressed down" at a district mee-

ting to demonstrate to the members

that Delaney had not eggs sec

with Frank's policies.42

h. District Two meeting, Feb-

ruary, 1972.46

l. Frank stated that Bernard

Kelly, a rebel in District

One, was a thief and had mo-

lested small girls.

2. Frank described in crude

and vulgar language an inci-

dent involving plaintiff at

the February, 1972 election

tally for international dele-

gates. Frank further commen-

ted to the effect that plain-

tiff had set back the entire

rebel movement, and that the

opposition will be elimina-

ted."

3. Frank declared that "a

Shimman will never run this

union."

ks etd 4), Two meeting, April

a0, 897acue

] A vote of confidence for

58S Business Representatives |

—* was placed before the |

oe

}.

A-46

floor. At that time, Frank

surrendered the chair to

Robert Bowes, Business Agent,

and strode among the members

cursing and ordering the mem-

bers to stand and show their

support. Ultimately, all in

attendance rose, with the ex-

ception of the four Shimman

brothers.

2. Frank and Grothaus made

further reference to Ervin

Shimman's note taking.

District Two aeyagory Board

meeting, May, 1972.

k.

1. Grothaus unsuccessfully

attempted to grab Ervin Shim-

man's notes. Grothaus told

Shimman in gross terms that

someday he would get the

notes.

2. Delaney crudely denounced

an engineer seeking assist-

ance from Frank in regard to

a work rule violation. At

this time Delaney was a mem-

ber of the Executive Board,

District Two Advisory Board,

and the Rank and File Commi-

ttee.

District Two Advisory Board

meeting, September, 1972.50/

1. Frank villified Ray Rojek

wits

A-47

Ervin Shimman in scatalogical

language for having been elec-

ted to positions on the Advi-

sory Board. Frank stated that

those engineers who had voted

for Shimman and Rojek would

someday "crawl up the aisle

on their bellies and ask [his]

forgiveness."

2. Frank stated that Rojek,

who had defeated Grothaus in

the August, 1972 election,

needed « "fist in the mouth

and blood should flow in the

streets."

3. Grothaus declared that

anyone taking notes would not

leave the meeting.

1. District Two meetings < gal

ber, 1973 and August, 1975.

Frank denounced the rebels politi-

cal efforts.

41. There is conflicting but

equally credible testimony as to whether

the rebels of District Three have been

denied the right to speak at district

meetings .24/ As there appears to be no

preponderance of evidence with respect

to this issue, plaintiff has failed to

sh.

A-48

carry his burden of proof in this regard.

42a. Dissident members have fre-

quently sought to attend district mee-

tings other than their own in an attempt

to advance the rebel movement.

b. In June, 1970, a prowosed col-

lective bargaining agreement between

Local 18 and the Building Contractor's

Association was submitted for approval

to the respective district memberships

at special meetings held on successive

evenings. At the District One special

meeting on June 15, 1970 the membership

refused to give approval to the proposed

collective bargaining agreement. Plain-

tiff attended this meeting and attended

a similar meeting in District Two the

following evening. Ai the District Two

meeting plaintiff attempted to speak in

opposition to a statement by Rutherford

-48-

A-49

that ali other districts had accepted

the proposed collective bargaining agree-

ment, but plaintiff was prohibited from

speaking by Frank, presiding officer, on

the grounds that he was not a member of

District Two .23/

c. In 1972, special district

meetings were held in the same fashion

as those of 1970 to conduct a membership

referendum upon a proposed increase in

the rate of member contributions to the

Health and Welfare Fund and Pension Fund.

Dissident members attempted to attend

several of these meetings in order to

oppose the increase .24/ At the District

Four meeting the chair, Rutherford, or-

dered the rebels to leave the meeting.

23/ On a subsequent evening at the Dis-

trict Five meeting the chair, Earl Erwin,

overruled an objection by Rutherford and

-49-

A-50

permitted the rebels to attend and parti-

6/

cipate in the meeting .22 Finally, at

the District Three meeting the chair,

William Christian, upon motion carried,

ordered the rebels to leave the meeting.

37/

d. Possehl was present at the

District Three meeting but expressed no

view as to tne propriety of the rebels

exclusion .20!

43. In a drastic efrort to compel

the dissidents of Local 18 to submit to

hall group practices, rebel members have

been threatened and subjected to assault

and physical violence.

44a. On June 27, 1970, plaintiff

attended and spoke at an Executive Board

meeting at the Sheraton Hotel, Columbus,

Ohio. The Executive Board meeting ended

at approximately 4:00 p.m. Thereafter,

-50-

i

A-51

piaintifi went to the bar at the Hotel's

outdoor pool, ordered a drink, and sat

down near the bar, propping his legs up

on a small cocktail table. Near a table

which was twelve to fifteen feet away

from plaintiff was a group of Executive

Board members and Business Age: us; Gro-

thaus, Delaney, Frank, Ben LIacampo, Roy

Everett, Mike Kasper, and Harley Salis-

bury .22/

b. Shortly after plaintiff sat

down, Grothaus calied Delaney into a

poolside room and the two men agreed to

attack plaintiff. The men left the room

and Grothaus walked over to plaintiff

and knocked plaintiff to the ground.

Grothaus and Delaney ther proceeded to

punch and kick plaintiff until the fight

was broken up. Following the fight

Grothaus told Delaney that they had "made

me

points" with Frank. 02/

c. Plaintiff was taken to a Co-

lumbus hospital for treatment. Plaintiff

did not attend the state meeting on June

21, 1970, but sought further medical

treatment at the Cleveland clinic. 24!

d. At 2:00 a.m. on the morning

following the poolside fight, Delaney

and his wife were awakened in their

hotel room by Ray Frankhouse and James

McMahon, Business Agents of District Two,

ana told to immediately leave town to

avoid arrest on criminal charges filed

by plaintiff. Delaney immediately

packed and left the hotel. Delaney did

not pay his bill prior to leaving, nor

at any time thereafter. Subsequently,

Delaney unexplainedly received an extra

$25.00 in his Executive Board expense

check .22/

2s

A-53

45a. Prior to the August, 1972 Dis-

trict Two Advisory Board meeting Frank,

Grothaus, Delaney and others met and for-

mulated a plan to obtain Frvin Shimman's

notebook at the next Advisory Board mee-

ting, September 5, 1972. The plan called

for several members to huddle around Shi-

mman in order to create a diversion,

while one member grabbed Shimman's notes

and left the meeting. Frank was to as-

sist from the chair by calling for order

and causing further distraction while the

thief exited the meet ing . 23/ This plan

was not executed on September 5, 1972.

However, at the District Two meeting of

September 11, 1972 Ervin Shimman's notes

were stolen and Jack Shimman was severely

beaten, 24/

b. A change in the customary

seating patterns of the hall group and

ah 3s

at

A-54

dissidents provided an indicia of the

violence that was to occur at the Septem-

ber 11, 1972 meeting. As a rule the hall

group occupied seats on the west side of

the hall, and the dissidents sat on the

east side. Ervin Shimman generally sat

near a water fountain at the rear of the

hall. However, on the evening of Septem-

ber 11 several members of the hall group

including Grothaus and his son, Terry,

sat among the rebel faction. The Gro-

thauses were seated next to each other

in the row behind Ervin Shimman, and to

Shimman's left .22/ Delaney, who was sit-

ting on the west side of the building,

was asked by Lee Purty and Boyd Rader,

members of the hall group, to join them

among the dissidents. Upon retusing the

invitation, Delaney was aksed if he was

‘cetelen , eee

A-55

c. Toward the end of -he meeting

Ervin Shimman was addressing the chair,

Frank, when Grothaus yelled and rushed at

Shimman from the rear. Shimman naturally

was taken by surprise and reacted by re-

flex in an apprehensive fashion. Grot-

haus, in a derisive fashion, asked Shi-

mman if he was scared, and stated that

he, Grothaus, was only going for a drink

of water. Frank, in an equally mocking

manner, inquired as to Shimman's fear,

and then described Shimman's reaction to

Grothaus' antics in crude and vulgar lan-

guage. Frank's comments elicited chuck-

ling from the membership, at which Ervin

Shimman sat down and resumed taking notes

of the proceedings .©?/

d. Grothaus continued past Ervin

Shimman and took a drink of water at the

fountain. As he was returning to his

-55-

A-56

seat, Grothaus reached over Ervin Shi-

mman's shoulder seized Shimman's note-

book, and proceeded rapidly to his seat.

As Grothaus was sitting down Jack Shim-

man, who was seated in the row benind

Grothaus, attempted to reach over Gro-

thaus' shoulder and recover his brother's

notebook. Grothaus whirled to his left

striking Jack Shimman in the solar plexus

region with his arm. As Jack Shimman

doubled over Terry Grothaus punched him,

knocking him to the floor. Terry Gro-

thaus then proceeded to kick Jack Shimman

in the head several times as he lay on

the Eloor . 22!

e. During the commotion Grothaus

passed Ervin Shimman's notebook to Phil-

lip Dawes, who concealed and subsequently

burned the novebot. =e"

46a. In December, 1971 following an

56-

A-57

Executive Board meeting, Frank told De-

laney "We got him first, but Columbus is

going to get him next ."20/ The meaning

of Frank's statement became clear at the

January 23, 1972 state meeting at the

Veterans War Memorial Auditorium, Colum-

bus, Ohio. 2t/

b. Plaintiff arrived at the state

meeting with several other District One

dissidents at approximately 9:30 a.m.,

the meeting to begin at 10:00 a.m. The

dissidents, including plaintiff, immed-

lately began passing out campaign liter-

Je/ Plaintiff at that time was

ature.

a candidate for delegate to the 1972

: ; 73/

International Convention./2

c. As the rebels were distribu-

ting literature, Frank and several engi-

neers arrived. Frank took some of the

literature and immediately thereafter

-5/-

A-58

one of the men with Frank returned to

the rebels, requested and received addi-

tional copies of the literature, and

promptly tore it up .24/

d. At 9:45 a.m. Raymond Eugene

Shell and A.J. Roberts, members of Dis-

trict Three .2!

came up the stairs and

walked toward plaintiff. Simultaneously

another engineer, Zachary Strong, appro-

ached plaintiff from a different direc-

tion, grabbing dissident literature,

tearing it up, and shouting "lets get

him."" Shell walked directly to plaintiff

and, while plaintiff was not looking,

punched plaintiff in the head, knocking

plaintiff unconscious, and stood over

Seat ; a

plaintiff threatening him.—

e. Plaintiff was revived and

assisted by Gary Kershner and Bernard

, l7i oe ;

Kelly.— Shell entered the meeting

- 58-

a es

A-59

where he was greeted

‘ling, Business Agent

member from District

Salutation of "Hello

raised Shell's hands

the traditional Sign

f. Plaintiff

prior to January 23,

mitted

by Whitey Kemmer-

and Executive Board

Three, who gave the

muscleman" and

Over his head in

of victory. 28/

had never met Shell

1972.49/ she) ag-

in a 1973 conference with plain-

titi's then counsel, Eugene Svmms, that

he had “nothing against [pleintiff),"

but was hard

80/

“told to give plaintifr a

time.

Z- In late January, 1972, Frank

told Oberle, in reference to Shell's

assault upon )laintiff, "that's the wa

I | y

we ought to take care of the trouble-

makers. n81/

B. LEGAL PROCEEDINGS

47. Several administrat ive, civil,

-59-

A-60

and criminal actions have been filed as

a result of physical attacks on dissident

menbers .2='

48a. Plaintiff filed an action a-

gainst Local 18 with the National Labor

83/

Relations Board== alleging that De-

laney and Grothaus had acted as agents

and officials of Local 18 in attacking

plaintiff at the Sheraton Hotel on June

27, 1970. This proceeding was dismissed

on July 19, 1971 on the grounds that

plaintiff had failed to prove an agency

, relationship regarding the incident . &4/

b. Plaintiff also filed an in-

dependent civil action against Delaney

and Grothaus with respect to the June 2/,

1970 incident. Plaintifi's civil action

was settled without necessity of trial

85/

in January, 1973.—

49. Jack Shimman filed criminal

A-6]

and civil actions in the United States

District Court, Northern District of

Ohio, Western Division, in regard to his

beating of September 11, 1972. The cri-

minal action was dismissed prior to

trial. The civil action proceeded to

trial without the intervention of a jury

before the Honorable Don Young, with a

verdict in favor of Jack Shimman being

handed down by Judge Young on October 15,

1975, 86/

50a. Plaintiff filed an action a-

gainst Local 18 with the NLRB in regard

to Raymond Shell's assault upon plaintiff

on January 23, 1972. This action was

dismissed on June 12, 1972 on the grounds

that plaintiff had failed to prove an

agency relationship concerning the inci-

b. Plaintiff also brought inde-

A-62

pendent civil and criminal actions a-

gainst Shell with respect to the January

23, 1972 assault. On August 25, 1972,

Shell was tried, convicted, and fined on

the criminal charges. Plaintiff's civil

action was settled without necessity of

trial in August, 1973, 88/

Sla. Delaney was represented in

plaintiff's civil action against him by

attorneys Jeffrey Belkin, Cleveland, Ohio

and Dwayne Callender, Toledo, Ohio. 82/

Mr. Belkin's firm, Belkin, Belkin & Gold-

90/

stein,— also represented Local 18 as

91/

general counsel. Frank arranged

counsel for Delaney . 22!

b. Raymond Shell was represented

in plaintiff's criminal action against

him by attorneys Jeffrey Belkin and

Alan Belkin. 22/

> Fe Local 18 incurred substan-

a2

oo”

A-63

tial legal expenses with respect to

plaintiff's actions against Delaney and

Shell, 24/ Poss_al t.*tified that he or-

dered Belkin, Belkin & Goldstein to "in-

vestigate" the potential liability of

Local 18 in these lawsuits, and that

expenses were incurred as a result of

these "investigations. n29/ However,

the services rendered by counsel pur-

suant to Possehl's orders greatly ex-

ceeds the scope of those Services which

would be expected in such an investiga-

tion. Moreover, Possehl's testimony

must be considered along with that of

6/

Delaney, 2° who testified that he paid

the total sum of $1.00 to Mssrs. Belkin

and Callender for their services. Con-

Sidering this testimony and the exten-

Sive legal services billed to Local 18,

it is clear that at Possehl's direction

-63-

A-64

counsel actively defended Delaney and

Shell in their respective actions, and

did not serve in a mere "investigatory"

Capacity.

C. ELECTIVE PROCESS

52a. The nomination of candidates

for elective offices of Local 18 is co-

ordinated on a state-wide basis by the

rebels and the Rank and File Committee.

Each organization endorses and promotes

its respective slate of candidates, and

arranges for the nomination of such slate

in each district.

b. Plaintifi was a candidate for

Trustee, the Executive Board, and the

District One Advisory Poard in the 1971

election of Local 18. Plaintiff was a

candidate for Delegate to the Interna-

tional Convention in the 1972 election

of Local 18.

A-65

c. The acknowledged practice of

the chair of each district in accepting

nominations is to recognize members of

the Rank and File Committee before rec-

ornizing any dissident member seeking to

97/ As candidates

nominate candidates.

for each office are listed on the ballot

in order of nomination, this practice

has polarized the ballot, with hall group

candidates at the top of the ballot and

rebel candidates at the bottom. 22/ How-

ever, this practice has not given the

hall group an advantage in the political

process, as the electorate has disting-

uished between candidates and elected the

candidate of their choice regardless of

ballot position. 22/

54. There has been testimony

which indicates that certain irregulari-

ties in the nomination and election pro-

-65-

———eeererrceeeerrooerrrrme

A-66

100/ However, it

cess have taken place.

appears that hall group members as well

as rebel members have been equally af-

fected by any irregularities. It has

not been demonstrated that a conscious

effort existed on the part of defendants

to deny properly nominated dissidents

their place on the ballot .201/

55a. Members of Local 18 other

than administrative personnel do not

have general access to the membership

list of the Local .202/

b. During election years candi-

dates may submit campaign literature to

the District One office for mailing to

the membership. The literature is re-

viewed for possible illegalities, mailed,

and the postage is billed to the candi-

date. Candidates are not permitted to

inspect the membership list, supervise

-66-

A-67

the mailing, or place a return address

on the envelopes .123/

ey Candidates are permitted to

inspect the membership list from 9:00

a.m. to 12:00 noon on the day preceeding

the election tally in order to determine

chalienges to voter eligibility .104/

However, candidates are not allowed to

copy any portion of the membership list.

105/

Nor are candidates given access

to the list at any other time for cam-

paign purposes .126/

56. Elections are conducted by

the Honest Ballot Associationl@// under

the auspices of the Election Committee.

In each election a master control list

of those operating engineers eligible to

vote is prepared by the HBA from the

membership records of Local 18. The

master list is used to administer and

+

A-68

implement the mechanics of the elective

yrocess, and to monitor the accuracy of

the election results. However, the HBA

does not independently verify the accu-

racy of Local 18's records .+08/

re Dissident members success-

fully challenged the 1971 state officers

election through the United States De-

partment of Labor. The election was

voided as a result of improprieties in

the eligibility requirements for candi-

dates, and re-run in 1972.

58. Since 1971 operating engi-

neers have nct been permitted to dis-

tribute any literature, political or

109/

otherwise on union property.

D. TRIAL, DISCIPLINE, REINSTATEMENT

59a. On May 8, 1972, plaintifi

was tried before the membership of Dis-

trict One on charges stemming from a

-68-

A-69

disturbance he caused with respect to

the February, 1972 election of delegates

to the International Convention. The

facts surrounding this disturbance have

been thoroughly litigated before the

NLRB and the United States Court of Ap-

110/ The

peals for the Sixth Circuit.

Court is therefore collaterally estopped

from further considering the same facts

insofar as they are relevant to the pre-

se Sed Ata 111/

sent action.—— The pertinent por-

tions of the NLRB opinicn are set forth

below, additional findings of the Court

follow thereafter.

A-/0

Findings as to Murphy's Conduct

During the Union Election

On February 12, 1972, Local 18 held

an election for delegates to the forth-

coming 1972 convention of the Interna-

tional Union of Operating Engineers.

Murphy was a candidate for delegate from

District No. 1 of Local 18.4/ [Local 18

has jurisdiction throughout the entire

State of Ohio and for administ~.-*ive

purposes is divided into six districts. ]

Some months before the date fixed

for the election, the Union appointed an

election committee of 12 members, the

chairman ot which was Stanley Blair.

This committee was generally responsible

for providing all eligible members an

opportunity to vote in the election.

Shortly after its formation the election

committee retained the Hones Ballot As-

sociation (herein HBA) to oversee the

preparation, mailing and tally of the

ballots.

The Union spent approximately

$10,000 on the conduct of this election

among its over 11,000 members. An am-

ount slightly in excess of $5,000 was

paid to the HBA for its assistance and

an almost identical total was spent on

postage and clerical expense connected

with the mailing of the ballots. George

J. Abrams, Ececutive Director of the HBA

and the official who was responsible for

conducting the election and counting

the ballots, testified at length as to

the procedures which were

-70-

A-71

used to insure that the election was

both fair and impartial.

Thus, Abrams testified that seve-

ral weeks before February 12, he secured

the Union's mailing list, met with its

election committee, prepared the ballots,

and mailed them out to the eligible mem-

bers. Thereafter Abrams arranged for

personnel at the HBA oftice in Cleveland

to aid in counting the ballots on elec-

tion day. According to Abrams, the most

important document in the conduct of a

secret ballot election is what he termed

a "control list,"' the use of which is

designed to forestall fraudulent voting

and the use of counterfeit ballots. The

control list for the Local 18 election

was prepared by Abrams from the Union's

records and contained the name and ad-

dress of each member along with the con-

trol number assigned to that member by

the HBA. This latter number was also

placed on the outer envelope which the

member used in mailing his marked ballot,

and on which the member was required to

place his signature. The staff of the

HBA retained custody of the control list

at all times and neither the union offi-

cials nor the candidates were allowed

access to it.

On the day of the election, after

Abrams and his assistants secured the

ballots that had been mailed by the

members to a special box at the post

office, the HBA staff checked the outer

envelope against the control list to

make certain that the number on each

14

stk

A-72

envelope corresponded with the number

assigned to that particular member

Thereafter the outer envelope, bearing

the member's signature, was removed and

the inner enevelope containing the bal-

lot was opened. According to Abrams,

however, this was not done until all of

the outer enevelopes, bearing the res-

pective control numbers, were removed so

as to maintain complete secrecy of the

ballots .2/ [Before this step was

reached the challenged ballots were se-

gregated in the presence of the candi-

dates and the election committe.] Abrams

testified that after the above-described

steps had been accomplished and before

the actual tally of the ballots was be-

gun, the control list was placed on a

separate table in the front of the room.

This was in an area which Stanley Blair,

Chairman of the election committee an-

nounced to all present in the room would

be ofi limits to everyone except Abrams

and a member of his staff.

The incident in question occurred

about 3 p.m. on the afternoon of the

election and when the tally of the bal-

lots was about half completed. Present

in the room were Abrams and his assis-

tants, Blair and his election committee,

and several of the candidates along with

their observers. Murphy was in the

latter group.

According to Murphy, he had been

there throughout the day and had become

increasingly irritated because on the

preceding day the election committee had

-jJ2-

A-7/3

allowed him only 3 to 4 hours to examine

the election list for the purpose of de-

ciding on challenges. Since the list

contained several thousand names and ad-

dresses he considered the time allotted

hopelessly inadequate. Murphy testified

that about the middle of the afternoon

he spoke to Abrams about the matter of

challenges and sought to examine the

voting list, but that when he did so,

the shouts and threats that arose caused

him to run for his life. According to

Murphy, he was pursued out of the union

hall and finally apprehended in another

building about a block from the election

Site. He testified that he did not rea-

lize until he reached the other building

that he had the control list on his per-

son.

Murphy's version of what occured

was in conflict with that of Abrams.

According to the latter, Murphy was not

engaged in any discussion with him about

challenges or anything else. Instead,

according to Abrams, as he and his staff

were busy with the tabulation and at

about 3 p.m. he noticed Murphy step up

to the table in the restricted area,

take the control list and make off with

it. Abrams testified that he immedia-

tely called out to Blair, chairman of

the election committee, "Mr. Murphy is

running off with the list." Thereupon,

Abrams, Blair and several others began

the pursuit of Murphy. One of the

latter was Robert Bowes, a 61 year old

business agent present at the election

scene as an observer. During the first

minute of the chase, when Bowes was

«Pte

A-74

about to overtake Murphy, the latter

turned and kicked him, knocking ewes to

the floor and breaking his glasses.%

{[Murphy, many years younger than Bowes,

is 6 feet and 4 inches in height. At

the hearing, Murphy conceded that Bowes

is about 6 inches shorter than he. ]

About 300 feet from the union hall and

in an obvious attempt to evade his pur-

suers, Murphy entered the Hatton House

Restaurant where he ran up to the second

fioor. On tinding himselt at a deadend

and with Abrams and the union officials

in hot pursuit, Murphy rid himself of

the control list by sliding it under a

locked door at the head of the stairs

where he found himself at bay.

b. After plaintif. shoved the

control list under the door of Hatton's

Restaurant he lay flat on the fioor of

the landing in an attempt to escape de-

tection. Plaintiff's efforts were un-

successful, however, and as several en-

gineers came up the landing stairs plain-

tiff rose and walked down the stairs

toward them. Although plaintifi was

threatened and jostled by his captors,

he was not physically harmed during his

ee

OO

A-7/5

apprehension. 212/

Cc. Ofticer Robert Butterfield,

113/ Cleveland Police Department, Mounted

Division, was patrolling in the vicinity

of the District One office and was at-

tracted by the cursing and commotion

surrounding plaintiff's flight and cap-

ture. Butterfield arrived on the scene

just as plaintifi was apprehended by his

pursuers. Butterfield took charge of

the situation, recovered the control

list, and returned it to the Election

Committee .114/

d. Blair and Rutherford demanded

that plaintiff be arrested for stealing

the control list. When Butterfield re-

fused on the grounds that the list had

no value, they insisted that he call his

supervisor, Sergeant Michael Quinn.

Butterfield complied, and Sergeant Quinn

~,

A-76

arrived in his patrol car shortly there-

after. i13/

At this time, Rutherford

and Blair renewed their demands that

plaintiff be arrested alleging that the

election was invalidated and that it

would cost thousands of dollars to re-

construct the list. 116/

Consequently,

Sargeant Quinn had plaintiff removed to

the precinct police station and booked

for petit larceny. Plaintiff was re-

leased when friends posted bond. ii//

e. Shortly after plaintiff's re-

lease, Robert Bowes, Business Agent of

District Two, and Leo Jankiewicz, the

union hall janitor, filed assault and

battery charges against plaintiff ari-

sing out of plaintiff's flight from the

ake - 118/

These charges were eventu-

ally dismissed for want of prosecution.

119/

= 7G<

a

A-77

Bs On the following Monday,

Rutherford and union counsel met with

Assistant County Prosecutor Stewart

Grendeli and demanded that plaintiff be

prosecuted for stealing the control list.

Rutherford was quite adamant in his al-

legations that the list was "invalu-

able. "220/ Prosecutor Grendell re-

fused, and the charges were “nollied."

121/

g. During the election tabula-

tion on the morning of February 12,

1972, Rutherford told Bernard Kelly,

a District One rebel, in coarse terms

"If I had plaintiff up on a plane, I

would push him out without a parachute.

i2e/ Later that day, when informed

that plaintiff had stolen the control

list, Rutherford indicated that plain-

tifr’s action did not matter as another

mo )

bait cnecenmenenlienieeeiill

A-78

123/

copy of the list existed.—— However,

it appears that Rutherford's reference

to another list was not made with respect

to a duplicate of the control list, but

rather to certain membership lists sepa-

rately compiled in order to cross-check

the accuracy of the control list .224/

The testimony of George Abrams estab-

lishes that only a single control list

existed for purposes of this election,

and that the control list could not be

reconstructed.

60. On February 14, 1972, Blair

brought intro-union charges?42/ against

plaintiff alleging:

William F. Murphy willfully at-

tempted to disturb, interfere

with and invalidate a duly

called election for Delegates to

the 1972 International Convention

by forcefully taking the only

master list, which reflected those

eligible members who returned

ballots, from the restricted

x 7

A-79

polling area by carrying such list

cut of the Local 18 Headquarters

and also by attemptiig to damage

said list.

Blair specifically charged that plain-

tiff's actions violated: Article III,

83; Article XVI, 84; Article XXIII,

Subdiv. (3), S(a); Article XXIII, Subdiv.

(7), S(e) of the International Constitu-

tion, and Article V, $82; Article IX, 85

of the By-laws of Local 18 .226/

61. Plaintiff filed his answer

to Blair's charges on February 15, 1972.

127} By letter of February 17, 1972,

plaintiff requested permission to retain

legal counsel in connection with all

proceedings arising out of these charges.

128/ This request was denied, as the

By-laws of Local 18 and the Internation-

al Constitution provide that counsel for

intra-union disciplinary proceedings

~ =

A-80

must be selected from within the member-

ship of the International .122/

62a. Pursuant to the By-laws of

Local 18, the charges against plaintiff

came on for pretrial hearing before the

District One Advisory Board on April 3,

1972 ,130/ The pretrial was presided

over by Rutherford. Possehl, Bowes,

Frank and Blair were also in attendance.

131/

b. In support of his charges,

Blair elicited testimony from various

engineers recounting the events of

February 12, 1972. 432/

In response,

plaintiff asserted that he was not guilty

and presented the Advisory Board with his

written answer to the charges, but de-

clined to adduce any evidence in defense

of his actions. After deliberation, the

Advisory Board found that sufficient

-80-

A-81

evidence existed to require plaintiff to

stand trial before the membership of

Local 1g .133/

c. The Executive Board was in-

formed of the decision of the District

One Advisory Board at its April 8, 1972

meeting, and, upon motion unanimously

carried, set plaintift's trial for May

8, 1972 before the membership of Dis-

trict One .234/

63a. By letter of April 1972,

plaintiff requested Rutherford to take

thirteen precautionary measures in con-

nection with his trial in order to en-

135/

sure fairness. In large part these

measures were implemented at plaintiff's

trial .136/

b. In a second letter of April

24, 1972, plaintiff requested permission

to have his reply to Blair's charges

ce

A-82

mailed to all members of District One.

137/ This request was denied .238/

64a. On the same evening as plain-

tiff's trial there were monthly member-

ship meetings in every other district.

The May 8, 1972 district meetings were

unusually important to the membership

because the provisions of a newly nego-

tiated collective bargaining agreement

were to be explained. As this agreement

contained regional wage rate difieren-

tials, the explanation of the agreement

was unique to each district. Consequen-

tly, the attendance at each district

meeting was far heavier than usual .139/

b. Despite the importance of

the May 8, 1972 district meetings, more

than sixty engineers from outside Dis-

trict One attended plaintifr's trial.

140/

Thirty of these engineers were

82.

A-83

from District Two; twenty were from Dis-

141/

trict Three. Many of the engineers

in attendance from outside District One

: ‘ ae 142/

were state and/or district officials.—

c. Delaney testified that he at-

tended the trial and voted to convict

plaintiff at Frank's direction. Delaney

further testified that he attended the

trial with Elmore Solomon, who was under

re ‘ ; 143/

similar instructions from Frank.——

d. Defendants offered no testi-

mony explaining why engineers and offi-

cials would miss an important meeting in

their home districts in order to attend

pi al ae dee ; ; ; ; 144/

plaintiff's trial in District One.——

e. The foregoing evidence leads

to the inference that the composition of

plaintiff's jury was maiuipulated in such

a fashion as to ensure plaintiff's con-

viction. This inference is drawn and

+£3-

A-84

it is concluded that this manipulation

denied plaintiff an impartial jury of

his peers.

65a. Piaintift’s trial was held at

the regular District One meeting, May 8,

1972. Plaintifr was represented by

Bernard Kelly, a fellow dissident from

District One. Blair was represented by

Miller, and Frank. Rutherford, és Pee

sident of Local 18, presided over plain-

tiff's motion that he recuse himself on

the basis of prejudice 242/

b. Plaintiff's trial proceeded

in an orderly manner with the respective

parties presenting testimony as to the

events of February 12, 1972. Addition-

ally, the prosecution offered into evi-

dence a letter from George Abrams re-

counting his version of plaintiff's ac-

tions and the potential consequences

-84-

A-85

thereof. 222/ This letter was admitted

into evidence over the objection of

plaintiff's counsel .24//

¢. Plaintiff contends that he

was unduly prejudiced by inflammatory,

irrelevant, and disparaging comments

made during the course of trial by coun-

sel for the prosecution and the chair.

However, plaintiff's trial was not sub-

ject to the strict procedural, eviden-

tiary, and due process requirements

which are incumbent upon a court of law.

Considering the entire record of the

trial, plaintift was not unduly preju-

diced by impermissible misconduct on the

part of Miller, Frank or Rutherford .248/

a. At the conclusion of trial

plaintiff moved to verify the eligibili-

ty of those engineers seeking to vote by

having the dues payment records of each

«BS.

A-86

engineer checked as he cast his ballot.

Rutherford denied plaintiff's motion.249/

e. Respective counsel, the pre-

siding officer, witnesses and the parties

were permitted to vote as part of the

jury in plaintiff's trial .120/

- A total of 496 votes were

cast, 262 for conviction, 225 for ac-

quittal, and 9 abstentions. A majority

of the vote having been cast for convic-

tion, Rutherford declared plaintiff to

be guilty as charged, imposed a fine ot

$500 upon plaintiff and suspended plain-

tiff from membership in Local 18 for a

period of two years .t21/

66a. Upon plaintiff's suspension,

Possehl ordered plaintiff's referral re-

gistration card to be placed in the in-

active file .122/ At that time plain-

tiff’'s card had been in the deck since

-86-

A-87

November 23, 1971. 423/ Possehl had

plaintiff's card removed from the deck

in order to punish plaintiff for the

theft of the control list, and for cer-

tain additional altercations in which

plaintiff had been involved .224/ Pos-

sehl's order was conveyed to the Dis-

trict One dispatcher, Shirley Hacker, by

Rutherford and Frank Roviscaine, Dis-

trict Representative of District One.

155/

b. Shortly after his trial,

plaintiff attempted to re-register his

card in order to preserve his November

23, 1971 referral date. However, plain-

tifrt was not permitted to re-register,

but was intormed by Hacker, pursuant to

Possehl's order, that he would have to

fill out a new registration card. By

filling out a new card plaintiff£ would

al P.

;

4

Pa]

A-88

go to the bottom of the deck for pur-

156/) plaintiff did

poses of referral.

not receive advanced notice that his

card would be placed in the inactive

file and that he would have to re-regis-

ter in the deck. Sat!

e. Plaintiff refused to register

anew and instead filed charges with the

NLRB. 228/

In August, 1972, plaintiff's

card was returned to the referral deck

under its original date of November 23,

1971. 159/ Local 18's refusal to permit

plaintiff to re-register for this three

month period was subsequently upheld by

the United States Court of Appeals for

the Sixth Circuit .269/

67a. In anticipation of the end of

his suspension, plaintiff requested re-

instatement forms from Earl Erwin, Re-

cording-Corresponding Secretary, by

-88-

A-89

letter of March 30, 1974161/ the sub-

mission of such forms being a condition

precedent to reinstatement under the In-

ternational Constitution. 262/

b. On April 6, 1974, the Execu-

tive Board, pursuant to Possehl's recom-

mendation, voted to refuse plaintiff re-

instatement because plaintiff currently

had pending four legal actions against

Local 18.283/ plaintiff was not noti-

fied in advance that the Executive Board

countemplated taking such action, nor

was plaintiff promptly informed of the

Executive Board's refusal to reinstate

him. 264/

C. By letter of May 21, 1974 to

Ray Stephens, Financial Secretary, plain-

tiff tendered his check in the amount of

$60 for past dues, assessments and fees

165/

in connection with his reinstatement .—

-89-

A-90

Stephens responded on June 3, 1974, by

returning plaintiff's check and referr-

ing plaintiff to Possehl's letter of

April 1i, 1974 concerning the proper

166/ Plain-

procedure for reinstatement.

tiff immediately wrote to Stephens sta-

ting that he had not received any letter

from Possehl regarding reinstatement, and

requesting a copy of the referred to

letter of April il, 1974 ,267/ Stephens

mailed plaintiff a copy of Possehl's

letter on June 10, 1974, 268/

d. Possehl's letter of April 11,

1974 requested plaintiff to appear in

person at the District One offices in

order to obtain the requested reinstate-

ment forms. The letter did not refer to

the April 6, 1974 action of the Execu-

tive Board refusing plaintiff reinstate-

169/

=90-

A-91

e. The Executive Board's action

of April 6, 1974 effectively expelled

plaintiff from Local 18. However, char-

ges were never preferred against plain-

tiff, nor was plaintiff ever brought to

trial and convicted by a three-fourths

vote of the membership as required by

the By-laws for the penalty of expul-

sion. +29/ The action of the Executive

Board was completely unilateral .221/

i. By order of this Court, plain-

tifi was restored to membership in Local

i8 on June 5, 1975.

E. THE ''WORKING TELEPHONE NUMBER '

ULREMENT

68a. Article X, 81 of the By-

laws of Local 18 provides that an appli-

cant for referral to employment must

provide his "name, address and a working

telephone number through which [he] can

a,vilsl

be reache

oft.

A-92

b. From 1971 through 1973

plaintiff had no permanent residence, and

therefore retained an answering service

in order to receive referrals .+/3/ This

practice proved unacceptable, however,

as plaintiff repeatedly failed to respond

to referral calls from District One .224/

In this regard, numerous instances were

documented of plaintiff's failure to

promptly return referral calls .1/3/ On

two separate occasions plaintiff assured

his District Representative that he would

be available for referral through the

answering service, and thereafter failed

to live up to these representations .+26/

Further, plaintiff admitted on cross-

examination that he frequently did not

answer referral calls for three or four

day intervals, even though he was aware

that in the vast majority of referrals

«2.

eR aah

A-93

contractors require the services of the

dispatched engineer on an immediate

basis .L2// Eventualiy, plaintiff was in-

formed by District One officials that he

would not be permitted to register in

the referral system until he complied

with the requirements of Article X, §l.

178/ Plaintiff's registration card was

placed in the inactive file on September

1, 1973 and plaintiff has not worked as

an operating engineer since that date.

179/

é. The decision to not allow

plaintiff to register until he furnished

District One with a "working telephone

1. aee/

number" was made by Posseh

F. THE REFERRAL SYSTEM

69. The only written descrip-

tion of the referral system available to

members is that which is set forth in

«Rs

A-94

the collective bargaining agreements en-

tered into between Local 18 and respec-

tive contractors. A description of the

system is posted in the district offices.

181/

70. The referral system is in-

tended to operate in a uniform fashion

throughout the Local. However any uni-

formity is confined to the mechanical

function of dispatching engineers to

employment. As will be discussed more

fully, the actual operation of the re-

ferral system is very subjective in na-

ture.

a. There are no written guide-

lines or policies distributed

to district dispatchers con-

cerning the operation of the

referral system. All refer-

ral policy is established at

staff meetings between the

Business Manager, District

Representatives, and Business

Agents. Policy decisions are

thereafter communicated to the

district dispatchers. These

-94-

Tiina lcaaiiiisii

staf1 meetings are held gh

least six times a year .192/

b. The two-refusal rule has

had divergent interpretation

among the districts.

1. In District One Steve

Mayor, District Representa-

tive, established a special

preference permitting "local

engineers" to work on the

Perry Power Plant project

and excusing non-local engi-

neers from the efiect of the

two-refusal rule as to that

project .183/

2. In District Four an en-

gineer is not subject to the

two-refusal rule if a job is

considered too far from his

home. Whether the job is

"too far" is determined by

the oe to be dispat-

ched.164/

3. In District Three, the

determination as to whether

a member is excused from the

two-refusal rule because of

excessiy distance to a job

is made by the District Re-

presentative or Business

Agents on a case-by-case

basis.185

4. District Two promul-

gated a "50 mile rule" which

-95-

A-96

provided that an engineer's

refusal to accept employment

more than 50 miles from his

home would not be counted

against him for purposes of

the two-refusal rule.186/

a In District One, dis-

tance to a job is normally

only one factor considered

in determining whether an

engineer is to be excused

from the operation of the

two-refusal rule.i?/

2. District Two members uni-

laterally modified the provi-

sions of the referral system

within their district by pro-

viding that less strenuous jobs

would be i» lem for older

engineers .=°° This practice

is unknown in other districts.

189/

é; A union member who becomes

ill or unable to work while on

a job may request a temporary

replacement from the hiring

hall. Absent an extended ill-

ness on the part of the engi-

neer originally dispatched,

such relief time is not consi-

dered in determining whether

the replacement engineer has

worked 12 days in the last 90

day period. However, there

are no formal guidelines as to

when relief time will be con-

verted into a referral for

-96-

Ee ee ee a

A-97

purposes of the 12 day require-

ment .190/

e. Operating engineers are

dispatched in accordance with

their place in the deck and the

equipment they are qualified

to run. However, the only re-

sources available to the dis-

patchers in evaluating the

equipment qualifications of an

engineer are the engineer's

work record and the equipment

listed by the engineer on his

registration card. Further,

the dispatchers are not experts

in heavy construction equip-

ment, and must frequently refer

to the District Representatives

and Business Agents in deter-

mining the ability of an engi-

neer. There is no uniform sys-

tem by which engineers are

rated as qualified to operate

‘sie pieces of equipment.

f. Although the referral of

engineers iS supposed to be

done exclusively by the dis-

patchers, District Representa-

tives and Business Agents are

regularly and substantially in-

yg3ved in the referral process.

71a. The official policy of the

United States Department of Labor con-

%

~$7-

iia

A-98

cerning the right of members to inspect

the deck

in order to determine their re-

ferral status in comparison to other

engineers is reflected in entry 110.320

of the LMRDA Interpretive Manual, which

provides:

There is

193/

All supplements which are in-

corporated by reference into a

collective bargaining agreement

become a part of it. Thus,

where an agreement makes re-

ference to a work referral sys-

tem which the union is to ad-

minister, and further sets up

terms, conditions and classifi-

cations of employees which the

union is obliged to follow in

referring applicants for jobs,

the referral list is incorpora-

ted by reference into the basic

agreement. Therefore, being

a part of the basic working

agreement, the referral list

should be made available pur-

suant to section 104.

contradictory testimony however,

as to Local 18's policy in this regard.

b. Possehl testified that so

long as an engineer's request is reason-

-~98-

Ae eer HVA

:

A

h

:

2

3

}

:

3

4

:

A-99

able and time permits he is entitled to

inspect the deck and ascertain not only

his position, but also those engineers

of comparable skills who are before and

after him in the deck. Possehl further

testified that he has instructed the Dis-

trict Representatives in this regard at

stafi meetings.

C. Steve Mayor, Paul Knott,

Clifford Farwell and Walter Linder, Dis-

trict Representatives of Districts One,

Four, Five and Six, respectively, testi-

fied that Possehl's instructions are

complied with in their districts’’ They

further testified that the deck is gene-

rally available to members for inspec-

tion after district meetings, and that

members can also inquire of the adminis-

trative staff during the day insofar as

the —— of business allows. Frequent-

-99-

A-100

ly, time constraints of the business day

preclude a member's detailed inspection

of the deck, in which case the engineer

is given his approximate referral posi-

tion.

ad. William Christian, District

Representative of District Three testi-

fied that members are permitted to see

their place in the deck, but are not

allowed to see the place of other engi-

neers. As in the other districts, engi-

neers are given an approximate referral

position when time constraints preclude

inspection of the deck.

e. Robert Shook, and Wesley

Johnson, engineers from District Two,

testified that they have inquired at the

hall as to their position in the deck,

the number of engineers of equal quali-

fication ahead of them, and have been

answered in each instance. Shook fur-

a tsts——its

A-101

ther testified, however, that he did not

know if dissident members received the

same courtesy from the hall.

ae Steve Wood and James Irwin,

engineers from District Five testified

that they have exercised their right to

determine their place in the deck in re-

ference to other engineers. Wood and

Irwin further testified that the Business

Agents have assisted them in inspecting

the deck.

g- Edward Duncan, an engineer

from District Four, testified that upon

inquiring about employment status he has

always been told the number of engineers

in the deck, the number of engineers in

the deck with skills comparable to his

own, and his place in the deck.

h. Dissident members of Dis-

tricts One, Two and Three testified that

-101-

A-102

they are denied the right to inspect the

deck in their respective districts .124/

- Thomas Jesse Preston tes-

tified that District Three members are

not permitted to inspect the referral

deck. However, in view of the settled

policy in District Three that no member

may inspect the deck, dissident or

otherwise, the rebels are not treated

any differently than the district mem-

bership as a whole.

eS Ervin Shimman testified

that as recently as March 16, 1976,

during the trial of this case, he was

denied the right to inspect the District

Two referral deck by James McMahon,

Business Agent, and was told that the

"policy of Local 18 is not to see those

ahead or behind you in the deck .192/

k. Plaintifi testified that

-102-

ne Sibert th Meta ntaele ben

A-103

on numerous occasions he has attempted

to ascertain his position in the referral

deck in reference to that of other engi-

neers, but in each instance has received

only an approximation as to his place in

the deck .426/ Betty Finley, dispatcher,

also testified that piaintiff was always

given an approximation of his place in

the deck, and was never permitted to in-

spect the deck. However, any refusal to

give plaintiff access to the deck by

District One administrative personnel

must be considered in light of plain-

tiff's conduct at the hiring hall.

Plaintiff's conduct in this regard was

considered by the NLRB along with the

matter of plaintifi's theft of the elec-

tion list. For the reasons previously

set forth the Court is collateraliy

estopped from further consideration of

A-103

A-104

the facts determined by the NLRB. 222/

The pertinent portions of the NLRB opin-

ion are set torth below; additional fin-

dings of the Court follow thereafter.

Findings as to Murphy's Conduct

at_ the Hiring Hall

At the time in question the Re-

spondent's referral office was

located on the second floor of the

Union Hall. It was a large room

that was separated by a partition

which extended from the floor to

about 3 feet from the ceiling.

The clerical staff that was res-

ponsible for the operation of the

referral service was on one side

of the partition and the union

members gathered on the other side

where chairs were located and

where they awaited their turn in

soliciting employment assistance.

At one section of the partition

there was a window and counter to

which the members: reported for any

union business they wished to

transact. Until the early part of

1971 this window had a large, un-

restricted opening. Thereafter,

for reasons which will appear be-

low, an iron grille was placed

across it. Next to the window

there was a door which enabled

office personnel to enter the

office area. The bottom of this

-104-

A-105

door had glass louvres.

Shirley Hacker, the principal

dispatcher, was assisted by Betty

Finley, the assistant dispatcher,

and employee Pamela Coates, in

maintaining the referral list for

the hiring hall, taking employment

requests from contractors and se-

curing men to fill such jobs.

Hacker had been the dispatcher

since 1969 and Finley the assis-

tant dispatcher since 1968. Both

Hacker and Finley testified at

length as to Murphy's behavior in

his contacts with the referral

office during the period from 1970

to 1972. From this testimony it

is evident that whenever Murphy

visited this office and was not

immediately referred to a job, he

thereafter made many more visits

that same day and in succeeding

weeks. At the same time, and

during this period, he made dozens

of calls to Mrs. Hacker, Mrs.

Finley, or anyone else in the of-

fice who would answer the tele-

phone.

Hacker testified that on many

occasions, after Murphy appeared

at the window and was told no job

was to be had, he went immediately

to a pay telephone on the first

floor of the building and from

there called to ask whether, during

the ensuing minutes, a job had be-

come available. She testified

-105-

A-106

that whenever she reported that

she was stili unable to refer him

to a job he would become abusive

and curse her. On one such occa-

sion when he calied her a "God

damned bitch" she hung up on him.

Almost at once Murphy appeared in

the waiting room and shouted at

her through the window "Do you

make it a practice to hang up on

members?"

According to Hacker, when Mur-

phy came to the referral of:ice

and found that the Union had no

job opening for him he would de-

ride her and the other office

personnel with abuse and profani-

ty. When any of the business a-

gents were present in the office

he criticized them for not being

at work in the field and when

none of them was present he would

rail at the system and complain

that no business agent was avail-

able to hear his demands.

Hacker testified that in 1970

Murphy often stood at the window

and, by reaching over the counter

secured some of their records

which he insisted on perusing.

According to Hacker, in order to

prevent Murphy from continuing

this practice, in 1971 an iron

grille was instalied at the win-

dow. Hacker testified that

thereafter Murphy often came to

the ofrice and stood at the win-

dow, where he would remain,

-106-

’

eS ),l*.. see

ae -

A-107

silently staring at the girls

working in the office, sometimes

for as much as 20 minutes. At

other times he would place a chair

against the partition and then

stand on it, peering over the wall

at the office personnel without

speaking, for 10 to 20 minutes at

a time. On other occasions he

subjected them to the same type of

treatment by laying on his stomach

in front of the door to their work

area from which vantage point he

gazed up at them through the lou-

vre openings. Mrs. Finley corro-

borated Hacker's testimony as to

these incidents and testified that

she found it nerve-wracking and

upsetting to look up from her work

and discover that Murphy was star-

ing at her through the louvres at

the bottom of the door. Both

Hacker and Finley testified that

they frequently complained about

Murphy's practices to Business

Agent Frank Roviscane who admon -

ished the member about this con-

duct, but that Murphy persisted

in this type of behavior until the

time of his suspension.

Hacker testified that several

times when she was explaining the

referral system to a nonmember,

Murphy appeared at the window.

According to Hacker, when this

occurred, Murphy would interrupt

her conversation make desparaging

remarks about the manner in which

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A-108

Local 18 operated the referral sys-

tem, tell the nonmember that there

was no use registering and declare

that the referral list might as

well be posted in the men's wash-

room next to the toilet paper.

Murphy conceded that during the

period in question he came to the

referral office several times a

week, that he occasionally stood

on a chair to look over the parti-

tion at the girls in the office,

and that after leaving he sometimes

telephoned the girls at the hiring

hall as often as 12 times a day.

He further acknowledged that if

the switchboard operator put him

on hold while he was making a call

from the pay telephone on the first

fioor of the building, he immedia-

tely went back upstairs to the re-

ferral office. Murphy denied that

he ever cursed the office workers,

that he ever lay on his stomach

and peered at the girls through

the louvres on the office door,

or that he ever stood at the

counter window and stared for ex-

tended periods of time at Hacker,

Finley, and the others at work

there. Murphy's denials, however,

were not credible. Hacker nd

Finley were completely frank and

forthright in their testimony as

to the antics in which Murphy

engaged over a long period of

time. Their testimony carried a

persuasive ring of conviction and

was entirely convincing. In view

-108-

A-109

of this conclusion, the under-

signed finds that insofar as

Murphy’s testimony differs from

their account, the testimony of

Hacker and Finley is the more ac-

curate as to what occurred at the

Union's hiring hall during Mur-

phy's visitations and his telephone

calls.

s Although plaintifr has testi-

fied that he has been denied access to

the District One referral deck, any such

Sea alte i BS

denial must be attributed to plaintiff's

conduct at the hiring hall. Plaintiff's

antics repeatedly disturbed the daily

business activity of the ha1i.228/

Plaintiff's requests to see the deck

cannot be considered to have been "rea-

sonable" when made under such disruptive

conditions. Further, no evidence has

been adduced that piaintiff ever attemp-

ted to inspect the deck after District

One meetings which is the normal policy

in this regard .129/ Finally, from

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A-110

September, 1973 to date plaintiff has not

even base registered in the deck.

m. The evidence establishes that

the dissidents of District Two, and the

membership of District Three have been

denied access to their district referral

decks. However, plaintifr has failed to

prove by the requisite quantum of evi-

dence that he has been denied the oppor-

tunity to inspect the referral deck for

any reason other than his own misbeha-

vior.

Fae The inherent subjectivity of

the referral system has enabled the mem-

bers of the incumbent administration to

manipulate employment referrals in such

a fashion as to benefit supporters and

punish dissenters. This manipulations

has been evidenced by the operation of

the referral itself, and by the state-

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A-111

ments of various members of Local 18's

Administration.

73. Gary Kershner served on the

Delinquent Loans Committee of the Local

18 Credit Union from 1969 to 1972. Even-

tually, Kershner was appointed Chairman

of the Committee. As Chairman, Kershner

had access to the work records of Local

18 for use in determining whether debtor

engineers were able to repay outstanding

delinquent loans. Kershner discovered

that some engineers had been out of work

for as long as seven months at a time,

while other engineers of comparable

skills had been referred to work within

a three week period. Kershner brought

this discrepancy to the attention of

Frank Roviscane, District Representative

of District One. Roviscane told Ker-

shner "'take care of your business at the

-1l1l-

Ee

A-112

credit union and I'll take care of things

down in my office ."200/

74a. John Barnes, Administrator of

the Ohio Operating Engineers Health and

Welfare Plan, testified that the average

engineer works between 1200 to 1400 hours

annually .291/

Premised upon an 8 hour

day, this annual hourly figure reflects

an average of 150 to 175 days worked per

year. Naturally, these figures repie-

sent an "average" and would vary when

analyzing specific engineers due to such

variables as experience, equipment quali-

fications, requests, overtime, and gene-

ral economic conditions.

b. From 1964 through 1969 plain-

tifi averaged in excess of 200 days

worked per year ,292/ From 1970 through

1973 plaintiff averaged less than 100

203/

days worked per year.—— The Court

-112-

canoer vill

A-113

is mindful that the decline in plain-

tiff's average annual employment is due

in part to disciplinary measures imposed

upon plaintiff, and plaintiff's refusal

to furnish District One with a "working

phone number." Nonetheless, the fact

that plaintiff experienced a drastic re-

duction in his average annual employment

coterminously with the beginning of

plaintiff's dissident activity is beyond

mere coincidence. This is especially

true in view of the above average annual

employment compiled by plaintifi during

his early years as an engineer, when ail

variables would normally have operated

to keep him below average. The evidence

establishes that plaintiff enjoyed pre-

ferential employment opportunities during

those early years in which plaintiff was

a member of the hall group, and that this

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A-i14

preference was promptly terminated at the

onset of plaintiff's dissident activity.

204/

as On December 5, 1975, Gary

Kershner was referred by the District

One dispatcher to a one-day job commen-

cing December 8, 1975. 203 Kershner,

however, suffered an injury prior to

beginning the job and was forced to re-

quest a relief replacement from the hall.

Despite the fact that Kershner was ne-

cessarily at the very top of the referral

list, he was not referred to another job

206/

until February 9, 1976. Kershner

is qualified as a master mechanic, cap-

able of operating any equipment in the

craft 202/ Further, Kershner's work

record and testimony demonstrates that

he readily accepts short-term employment

208/

on any equipment .—— To conclude that

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A-115

Kershner was properly unemployed for this

interval, would require that Court to

infer that District One did not receive

a single referral order during this per-

iod. Although mindful of the seasonal

nature of the trade, the Court declines

to draw such an inference .222/

76. In 1972, Frank Roviscane, Dis-

trict Representative of District One,

telephoned Frank Hurd, a District One

rebel, and solicited Hurd's support for

a proposed increase in contributions to

the Health and Welfare Funds. When Hurd

expressed his opposition to such an in-

crease, Roviscane replied that only "the

people that supported the organization's

way of thinking are the one's who would

work. "210/

77. Glen Brinker, an engineer

211/

from District One, was transferred——

-115-

A-116

by Ben Iacampo, Business Agent, from a

cherry picker to a tower crane while

working on the Justice Center Project,

Cleveland, Ohio. 214/

78. Bernard Kelly, a dissident

from District One, was bypassed in the

referral system in favor of engineers

of comparable skilis who had registered

in the deck after Kelly .243/

79. Business Representatives of

District One have manipulated the re-

ferral system in order to refer rela-

tives to employment ahead of more ex-

perienced, better qualified engineers.

214/

80. There has been conflicting

testimony as to whether Local 18 will

refer an engineer to employment by

leaving a message with the engineer's

family .242/ Plaintiff has contended

-116-

A-117

that hall group members are referred in

this fashion but that dissidents are not

afforded the same courtesy. The evidence

adduced by the parties in this regard,

however, has been of equal weight and

credibility. Accordingly, plaintiff has

failed to carry his burden of proof as

to this contention.

8la. In mid-1970 Ervin Shimman had

been requested by and was working for

the McDowell-Wellman Construction Com-

pany. During this period Frank asked

Shimman to run for the District Two Ad-

visory Board on the rank and file slate.

When Shimman refused, Frank replied that

Shimman was on the McDowell-Wellman job

illegally and would be removed the next

day. Shimman avoided removal by having

the contractor formally request him in

a letter to the District Two hiring hall.

-117-

A-1:i8

216/

—

b. In 1971, Ervin Shimman was

elected by the District Two membership

to the Executive Board of Local 18. At

an Executive Board meeting in early 19/71,

Frank told Shimman that if he did not

oppose administration policies he would

receive preferential employment treat-

ment, but if he did not conform to such

policies he would be sanctioned through

the referral system. -L// Shimman re-

plied that he would vote for the members

of District Two.

c. In March, 1971 Ervin Shimman

concluded service as master mechanic on

the Davis-Besse Power House project. A

short time prior to the completion of

this job, Shimman had laid off Woody

Caulder, a District Two engineer. When

Shimman went to the hiring hall to re-

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A-119

gister for employment, however, he dis-

covered that despite the fact that 200

engineers were registered in the deck

Caulder had been immediately referred to

another job by Robert Bowes, Business A-

gent. The job Caulder had been referred

to was projected at 1 1/2 years duration.

Shimman confronted Frank and Bowes con-

cerning Caulder's referral and succeeded

in having Caulder removed from the job.

218/

S. 2. On March 19, 1971, subse-

quent to the above incident, Ervin Shi-

mman was telephoned at home by Superin-

tendent Twitchell of the Catalytic Con-

struction Company. Twitchell inquired

as to Shimman's availability for work on

upcoming Standard Oil project. Shimman

told Twitchell that he was available,

but could not work unless properly re-

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———e

A-120

quested through the hiring hall. Twit-

chell assured Shimman that the request

would be placed with the ha11.219/

r A short time thereafter

Frank telephone Shimman and informed him

that he had been requested by the Cata-_

lytic Construction Company, but would

not be dispatched because "you are going

to make a lot of money in a job like

that and I got somebody picked out."

After further discussion Shimman hung up,

called Twitchell and explained what had

taken place. Twitchell told Shimmar. that

he would deal with the problem. 229/

3. Twitchell immediately had

Shimman formally requested by way of a

telegram from A.H. Muller, Catalytic

Labor Relations Representative, to the

District Two hiring hall. Later that day

the dispatcher telephoned Shimman and

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A-121

told him to report to the Catalytic job.

Shimman asked to speak to Frank to veri-

fy the request and learned of the tele-

gram. Frank was openly irritated by the

request and told Shimman "you go out

there, but I'll get you yer ."221/

e. l. On October 14, 1971, Ervin

Shimman refused a referral to a hoist

job. This was Shimman's second refusal

and resulted in his card being returned

222/ Later

to the bottom of the deck.

that evening Frank telephone Shimman and

informed him that he had been requested

by the Braun Construction Company. Frank

told Shimman, however, that he would not

be referred to the Braun project because

he was subject to "special" referral

rules and his registration card was

being "frozen" at the bottom of the

deck for a period of 10 days Frank

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A-122

proceeded to tell Shimman '’Phase 1 is

when I come in here and Phase 2 is when

I come in here I found enemies; and you

are one of my enemies and I am going to

destroy my enemies"; and, "I'm the hat-

chet man from Cleveland. I come in here

to chop heads and you are one of the

heads I come in here to chop." Finally,

Frank told Shimman "I will starve you

out. I will destroy you. "223/

2. Shimman protested Franks

actions to Possehl, who in turn ordered

Frank to refer Shimman to the Braun pro-

ject. Frank complied with Possehl's

order, but in doing so told Shimman

"T'll get you yet ."224/

a Sometime prior to April,

1975, Ervin Shimman underwent spinal

surgery. As a result of this surgery

Shimman convalesced for a period of

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—

beat ee a enna

A-123

eignt months, and was ordered by his

doctors to refrain from operating long-

boom equipment for a period of 1 1/2

years. Consequently, Shimman informed

the hiring hall of his temporary inabi-

lity to accept referrals involving long-

boom equipment .222/

y ie In April, 1975 Robert

Bowes, Business Agent, telephoned Shim-

man regarding a referral to a long-boom

crane in Green Springs, Ohio. Shimman

reiterated to Bowes that he was unable

to operate such equipment at this time.

Bowes replied that if Shimman's refused

the job it would constitute his second

refusal and his card would be placed at

the bottom of the deck. Shimman, in

financial straits at the time, accepted

the referral .226/

82a. In the 1971 state-wide elec-

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A-124

tion Oberle ran for Vice President on

the dissident slate against Frank. At

the District Two meetings between June

and August, 1971, Frank declared that

any engineers supporting Oberle would be

"starved out of the union. "22//

ae On October 5, 1971 Oberle

was telephoned by Tillie Kershner, Dis-

trict Two dispatcher, and told to report

to the Braun Construction Company to be

interviewed for the position of master

mechanic on an upcoming project. Oberle

went to the interview and was informed

that he would be notified as to the

Company's choice for the position. 429/

a On October 7, 1971 super-

intendent Stageman, Braun Construction

Company, called Oberle and told him

that he had been selected for the master

mechanic position. Stageman further

-124-

A-125

told Oberle that when Frank had been in-

formed of this decision he had become

quite irate and had spoken of Oberle in

a very derrogatory manner .222/

a On November 5, 1971 Frank

called Oberle and offered him a referral

requiring the operation of a forklift.

Oberle informed Frank that he had told

the dispatcher not to call him until the

question of the Braun master mechanic had

been resolved. Frank replied that since

a

Oberle had not personally asked him for

permission to temporarily withdraw from

the referral, Oberle's registration card

ace Nene tet, rea la canal la Ree tN

would be returned to the bottom of the

bone cease

deck. When Oberle protested Frank told

him to address any grievance to Possehl

or Rutherford. Oberle did attempt to

contact Possehl and/or Rutherford but

was wuccesetul 2a

te ed Rane

-125-

8 a

A-126

4. On November 23, 1971, the

master menhanic issue remaining unresol-

ved, Superintendent Stageman telephoned

Oberle and asked him if he would accept

an interim referral to a cherry picker

on the Braun job. Oberle replied in

the afrirmative and Stageman said he

would piace the request with the halt..

However, shortly thereafter Stageman

again called Oberle and informed him

that Frank had refused to honor the re-

quest. Oberle, understandably upset,

again attempted to contact Possehl and/

or Rutherford in Cleveland. Neither man

was in the District One offices, but

Oberle did leave a message with Ruther-

ford's secretary. Oberle, however, was

never contacted by Rutherford or any

other official of Local 18.231/

me Unable to obtain an ex-

-126-

ett a

A-127

planation or satisfaction from any

source, on November 26, 1971 Oberle filed

a grievance with the Local over Frank's

refusal to honor the Braun requests 224!

6. At the December 13, 1971

District Two meeting, Frank read Oberle's

grievance to the membership and denounced

Oberle as a communist and an enemy of the

233/

union. Frank stated that he would

not honor the cherry picker request sub-

mitted by the Braun Company because if

he did Oberle would be made master mec-

A a atta te aay NO

hanic of the entire project, and there-

after would request dissidents for posi-

tions on the project instead of Frank's

supporters .224/

Fe On a Saturday in late Jan-

uary, 1972, Frank telephone Oberle re-

garding a referral to a cherry picker

job in Green Springs, Ohio. When Oberle

again refused on the basis of the pending

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A-128

Braun request Frank stated "If you re-

fuse the job, its down to the bottom

again." Oberle, after further conver-

sation, asked Frank if it would be possi-

ble to meet and discuss this matter in

person. Frank agreed to meet Oberle at

the District Two hall the following

Monday .422/

8. Frank and Oberle met for

several hours the following Monday.

Frank told Oberle that he could not be

dispatched to the’ Braun job as it wouid

cause Frank to lose fuce. Frank further

stated that "he would have unity one way

or the other, and that he was going to

make it so miserable for anybody who

asked for a request that nobody was

going to have nerve enough to do ir ."236/

9. In April, 1972 Oberle

filed charges with the NLRB over Frank's

-128-

Ste hai a Sabet ner agai

A-129

refusal to dispatch him as master mec-

hanic to the Braun Construction Company.

On June, 1972 the NLRB resolved the

issue in favor of Oberle. Upon receiv-

ing the NLRB decision, Oberle telephoned

Frank with respect to being dispatched

to the Braun Construction Company. De-

spite the decision of the NLRB, Frank

again refused to dispatch Oberle to the

Braun job. Eventually, upon the advice

ON ae = iS cia on me Nin De! nie int

of an NLRB attorney, Oberle reported to

the Braun job without being dispatched

237/

et a th

by the District Two hiring hall.

83a. In 1971 the "' 50 mile rule”

was in effect in District Two for pur-

poses of applying the two refusal rule.

238/

In early August, 1971 Walter

Shimman refused a referral to a job in

Napoleon, Ohio. Shortly after this

refusal Shimman also refused a job in

A-130

Lima, Ohio. Although the Napoleon job

was within 50 miles of Shimman's home,

the Lima job was approximately 80 miles

distant. Shimman, however, refused the

Lima jvub because it entailed exposing

his eyes, which had twice been operated

on to irritating fumes. Shimman did

not expressly invoke the 50 mile rule in

refusing the Lima job. Nor does it ap-

pear that Shimman had ever invoked the

50 mile rule in regard to any prior re-

fe. ils, but rather had accepted refer-

rals irrespective of distance. 222!

b. At the August, 1971 District

Two meeting, Frank announced that Shim-

man's registration card was being re-

turned to the bottom of the deck because

Shimman had refused two jobs in succes-

240/ In re-

sion without good cause.

sponse, Shiimman stated that the Lima

job was more than 50 miles from his

-130-

Ne en pi eel

A131

home in any event, and therefore should

not be counted as a refusal. Frank re-

plied "you are one of the wise ones and

you are at the bottom." Prior to this

meeting Shimman was not aware that his

card had been returned to the bottom of

the deck .241/

G. Following the August, 1971

meeting, Shimman filed a grievance with

Frank regarding the application of the

two refusal rule to the Lima job. Frank

informed Shimman that the grievance had

been found lacking in merit and would

be forwarded to Local 18 headquarters in

Cleveland, Ohio for further considera-

tion. 442/

d. In October,,1971 an Executive

Board meeting of Local 18 was held at

the District Two offices in Toledo,

Ohio. At this meeting Walter Shimman

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A-132

spoke to Possehl with respect to Frank's

actions concerning the Lima job, and

Frank's general unruly conduct in mana-

ging District Two. Shimman concluded by

asking Possehl to remove Frank as Dis-

trict Representative of District Two.

Possehl replied that he was aware of

Frank's conduct, and assured Shimman

that such conduct would cease. Possehl

told Shimman to file a grievance re-

garding the Lima job. When Shimman in-

formed Possehl that a grievance had al-

ready been filed, Possehl stated that he

kad not seen it. In response to Shim-

man's request to remove Frank, Possehl

stated "I sent him in to do a job. He

hasn't done it yet, and I'm not taking

him out of here. "243/

e. Shimman’s registration card

was never restored to its proper place

-132-

A-133

in the deck as a result of the grie-

vance filed with Local 18 244/ Con-

sequently, in January, 1972 Shimman

filed charges with the NLRB alleging

that Frank's actions in placing his re-

gistration at the bottom of the deck for

refusing the Lima job constituted an un-

fair labor practice. Judgment was ul-

timately entered in favor of Shimman.

245/

84. At the tabulation of ballots

for the 1971 statewide election, Frank,

angered at the fact that Ervin Shimman

had been elected to the Executive Board

for District Two, stated "If its the

last thing I do on this earth I am

going to starve those Shimmans out ."246/

85. In 1° ~ Roy Rojek, a District

Two dissident, was dispatched to the

Wellman Power & Gas Company to operate

-133-

priate TRE) ee a ay” OWS TA. B 79 Saal ;, the — >

Wee a dA ll BN pe, EN TS

(i s- talli wi ABO Ne aq

A-134

a bank of generators at a job site in

Green Springs, Ohio 2!

During the

course of this job, Rojek was approached

by James McMahon, Business Agent, who

told Rojek that he had been ordered by

"the Organization" to have Rojek switch

from the generators to a cherry picker

in accordance with the District Two

policy of reserving less strenuous jobs

for older engineers >! Rojek re-

fused to switch jobs as he believed that

the generators would remain in operation

for a considerably longer period than

the cherry picker. McMahon, rebuffed,

told Rojek, ''Now remember, Ray, I'm

ordering you to make this switch. This

job isn't going to last forever and

you're going to have to come into the

hall for work, and remember that its

the Organization that puts you to work."

-134-

ten

A-135

249/

86. Rick Shipman, a District Two

apprentice, was told by Jack Frantz ,220/

Apprentice Instructor, "If you want to

work in Local 18 keep your mouth shut

and don't believe a word [Ervin Shimman]

says "221/

87a. From 1969 to date, Kenneth

Delaney, a member of the District Two

hall group, frequently witnessed Dis-

trict Two Buswness Agents manipulate the

referral system in order to refer favor-

ed engineers to employment .422/

b. Business Agent Harley Salis-

bury would pass over the cards of those

engineers at the top of the referral

deck until he came upon the card of a

favored engineer. Salisbury would then

dispatch the engineer of his choice and

write "called and not at home" on the

-135-

A-136

4 : 53/

cards of the by-passed engineers .——

c. In a similar fashion Business

Agent Robert Bowes would telephone the

engineer at the top of the referral deck,

let the phone ring once, hang up, write

"calied not at home" on the respective

engineer's registration card, and then

continue on in succession in the same

fashion until coming upon the card of a

favored engineer. Bowes would then dis-

patch such engineer 227

d. Business Agents would "back

date" the registration cards of favored

engineers in order to raise such engi-

neers referral priority. 222!

S...4. On several occasions De-

laney would arrange with the hiring hall

to have favored engineers transferred

from jobs which were near termination to

jobs projected at an extended duration

-136-

A-137

without going through the referral sys-

tem, by-passing those engineers in the

deck .226/

- In September, 1974 Delaney

was working for the Coolseat Construc-

tion Company near Fostoria, Ohio. At

that time Harry Hetzel, Coolseat super-

intendent, needed an engineer experi-

enced in operating a side boom crane.

Delaney approached "Frank" Dawes, who

was working for the Bernard Pipe Line

Company near Perrysburgh, Ohio about

transfering to the Coolseat job. Dawes

agreed to the transfer, Delaney made all

the necessary arrangements with the

hiring hall, and Dawes was dispatched

to the Coolseat job on September 27,

1974,227/

2 In mid-November, 1974 the

Side boom crane being operated by Dawes

-i137-

A-138

was terminated. Dawes, rather than re-

registering in the referral deck, “rol-

led" Dan Kirkwood, another engineer, off

a loader and continued on the Coolseat

job in Kirkwood's place .22"/

4. In October, 1974 Richard

Pelton was working for M&R Pipeline near

Canton, Ohio. Pelton was rained out of

the M&R job and approached Delaney and

Harry Hetzel with respect to employment

on the Coolseat job. Delaney telephoned

the hiring hall and arranged to have

Pelton dispatched to the Coolseat job.

259/

Rs Business Representatives of

District Two have manipulated the refer-

ral system in order to refer relatives

to employment ahead of more experienced,

better qualified engineers . 200/

88. In 1972, during the pendency

-138-

A-139

of Oberle's charges with the NLRB re-

garding the Braun job, Frank sent Delaney

to the bottom of the deck under the two

refusal rule "to make it look good." In

fact Delaney had been out of work for

sometime, had been registered in the

deck, and had not refused any referrals.

Additionally, Frank intended to punish

Delaney because Delaney had approached

Possehl regarding an appointment to the

position of Business Agent without having

first obtained Frank's approval. 261/

89. In 1974 Jesse Preston, a dis-

sident member from District Three, openly

chalienged certain statements of William

Christian, District Representative, on

the floor of a district meeting. Robert

Hoover, Chairman of the District Three

Rank and File Committee, rose before the

meeting and asked Christian to take

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A-140

Preston's book away. Christian replied

"We can't take his book away from him,

but we will take care of him through the

office ."204/

90. The registration card of

Robert Eirman, an engineer from District

Three, bears the longhand notation:

11-11-1973

Will call when available for work -

arthritis in hands. HH.

The initials "H.H.'' indicate the author

of the note, Homer Hysell, Business A-

gent of District Three. In accordance

with this notation Eirman's card was re-

moved from the active file and placed in

the inactive file reserved for ill and/

or injured engineers. However, Robert

Eirman has never had arthritis, nor has

he ever requested to be removed from the

deck due to arthritis .+0>/ Nonetheless,

Eirman lost an indeterminate amount of

-140-

A-141

time in the referral deck due to Hysell's

actions.

oi. Plaintiff has offered the

testimony of Dr. John F. Burke, called

as an expert witness, to establish by

way of statistical interpretation that

the referral system was operated in such

a fashion as to discriminate against

dissidents, and to afford hal: group mem-

bers preferential employment treatment.

Close examination of Dr. Burke's testi-

mony reveals, however, that many variable

factors were not taken into considera-

tion in concluding that a statistical

variance is reflected by the comparative

referral treatment of hall group members

264/

and dissidents. Accordingly, the

Court attributes no weight to this testi-

mony , 262/

G. | THE BUCKEYE ENGINEER

-141-

EDS or ee ie

92. The Buckeye Engineer, Local

18's newspaper, is published on a monthly

basis. Publication costs are borne by

the Local. The Buckeye Engineer is in-

5

formational in nature, and is distributed

to the entire meubership. “22!

93a. As Business Manager, Possehl

is the editor of the Buckeye Engineer and

exercises absolute control over the con-

tents of the newspaper .=2-' Possehl

also publishes a monthly ‘Progress Re-

port" which informs the membership of

International, Local and administration

268/

activities. Since 1970 a small

picture of Possehl has accompanied his

monthly "Progress Report . "202!

b. The remaining defendants, as

officials of Local 18, frequently pub-

lish articles or are featured in The

Buckeye Engineer .220/

A-143

94. At times the dissidents of

Local 18 have been severely criticized

by certain defendants in articles appear-

ing in The Buckeye Engineer :+_+/

bis November, 1968, "Progress Re-

The defeated candidate has

decided to carry on his pro-

test and in all probability

Local 18 will find itself

spending good dues money to

protect our rules, By-laws,

and the International Consti-

tution. Dissatisfied losers

can always find some lawyers

to act in their behalf on a

contingency basis.

When we assumed office, we

promised to defend every mem-

ber's right to protest as

long as this was done legally,

fairly and within reason.

Those members who were in

charge of the election, our

Executive Board, those watch-

ers who were present at the

election and the representa-

tives of the Honest Ballot

Association all have declared

this man wrong in his protest.

We think his protest has

reached the end of reason-

A-144

ableness.

a May, 1969, "Progress Report."

This month saw the last lLaw-

suit involving Local 18 and

itd dissident members. These

suits have involved great ex-

pense and loss of time. Ex-

penses and lawyer fees, loss

of time by your agents, and

loss of time by members who

have lost days of work to

appear in behalf of Local 18.

The efforts of defending the

Local, the members and offi-

cers have been costly. We

hope that now the Local and

all members can go forward

together to seek better wages

and better conditions with no

loss of time due to lawsuits.

We pledge our office and ad- |

ministration toward that goal.

3. November, 1971, "Progress Re-

2

We reported to you in our last

Buckeye Engineer the protest

to the election of Officers of

Local 18 made by William Shim-

man and William Murphy. These

protests were heard and have

been denied, after a complete

hearing by the Executive Board

of Local 18 ruling the pro-

tests as being without merit.

-144-

A-145

Both of these members have

now appealed the Local's de-

cision to the International

and their appeal will be

heard soon by a panel of Vice

Presidents.

I can only report that this

continued harassment does

nothing good for our Local.

Our employer enemies must

gloat over what seems is in-

ternal fighting, when in rea-

lity only a small group is

protesting -- a group that

could be counted on our fin-

gers aione.

This same group is again

trying to make political hay

of the Supreme Court's refusal

to hear our International's

petition on the Branch Men-

bership question. They are

telling all who will listen

that the Department of Labor

has ordered a new election for

Local 18.

This is not so -- at least no

official of the International

or of our Local has so been

told. Based on a question in-

volving our International Con-

stitution, raised in our 1965

election and carried through

the courts to final adjudica-

tion, the courts have now

ruled that Branch Members, ex-

cluding Registered Appren-

-145-

A-146

tices, will be «ligible to

run for and hold office in

the Local Union.

It was agreed that, upon fi-

nal disposition of the ques-

tion, the International and

the Departnent of Labor would

agree upon a settlement but

that no new election would be

ordered when a Local Union in

our International followed

the International Constitu-

tion.

Local 18 did foliow our In-

ternational Constitution and

our By-Laws in past elections.

If the Department of Labor

now violates its agreement,

we might be ordered to run

another election. (An elec-

tion at who's cost?)

I am certain the result would

be even heavier in favor of

those of us who have tried

to live by the By-Laws and

the Constitution.

4. February, 1972, "Progress

Report. "422/

Our January State Meeting

in Columbus was attended by

enthusiastic membership. We

had a fine turnout and my

thanks to all of you who

-146-

Supported the position of the

administration once again. At

the meeting we had Murphy,

Caterinaceci and others trying

to create dissension, but a-

gain they failed.

The Executive Aoard itself

heard and acted on a number of

appeals. Two were from mem-

bers of our Local -- William

Shimman and William Murphy --

who appealed the decisions of

our Local's Executive Board

finding no merit in their pro-

testing the last election of

officers. As on many past

occasions neither one showed

up and both appeals were de-

nied by the International Exe-

cutive Board.

The only event that marred

this section occurred when

William Murphy removed the

election lists from the Lo-

cal's ofxice and the control

of the Election Committee and

the Honest Ballot Association.

Fortunately he was caught be-

fore he got beyond Euclid

Ave. and the lists were re-

covered before he could dis-

pose of them. Murphy has

been charged with this offense

by the Election Committee and

will be tried within the

Union.

-147-

A-148

March, 1972, "Progress Re-

As we reported to you in our

last issue, we have asked the

District Federal Court to re-

consider the order for Local

18 to rerun our election.

This matter will be heard

April 7th in Cleveland Fede-

ral Court. We will keep you

informed.

Last Wednesday, March 22nd,

Caterinacci, Murphy, Kelley

and others appeared before

Chief Judge Frank J. Battisti

charging officers of Local 18

with contempt of court. The

Cleveland Plain Dealer re-

ported as foliows:

"In sharp terms Judge Battisti

told Eugene M. Symms, lawyer

for the dissidents who brought

the action, that the group

had no standing in the matter

and, furthermore, had not

followed correct procedures

in filing the action.”

This selfish group will stop

at nothing that will embar-

rass your Local. They don't

even consider the added costs

with which the Local would be

faced. What good union men !

June, 1972, Report of Presi-

-148-

A-149

227/

dent Rutherford .——

92.

On two separate occasions we

appeared before the Interna-

tional panel to present Local

18's position on protests of

elections that members have

filed: but at none of these

did the protesting members

appear to present evidence to

substantiate their protests.

Local 18's positijm was upheld

and the protests uenied as

without merit.

Nevertheless, these two same

members demanded that their

protests go to the 29th Con-

vention. They were again re-

viewed without the protesting

members appearing. The Con-

vention then voted unanimously

to deny the protests as with-

out merit.

These are a few of the unne-

cessary, time consuming pro-

blems processed through the

President's Ofcice. This

time could have been of your

Local Union.

Numerous articles have appear-

ed in The Buckeye Engineer in connection

with upcoming elections. Only one item,

however, appearing in the July, 1972

-149-

A-150

edition, can be construed as referring to

278/

the dissident movement:

The best way to preserve demo-

cracy in our union is for every

member to make himself felt at

the ballot box. We all know of

cases in other unions where a

a smali minority was able to

win an election just because

most of the members figured

that there was no need to vote.

They figured that the candidates

they wanted were sure winners

anyway. The kind of leadership

your union has the next few

years can affect your job future

and your family's weltare. Take

time to protect the future.

Take the few seconds you need to

mark and mail your ballot. Make

up your own mind. And don't

fail to vote.

VOTE

Other articles appearing in the Buckeye

Engineer can only be considered politi-

cally objective:

279/ 1. March, 1968, "Progress Report.

The only weakness in this elec-

tion was the apparent lack of

interest demonstrated by the

-150-

A-151

fact that less than one-third

of our members returned their

ballots.

This is your Local! It belongs

to you, the members, only as

long as you protect it with

your ideas, your plans, and

with your ballots. Give us

your ideas, write and discuss

your plans for the future, and

most important of all -- vwote

your convictions.

July, 1968, "Progreds Report."

Our Local needs your support

if we are to Successfully

know your desires and obtain

your wishes. Your vote in

this election wili either af-

firm that we are doing what

you want or express your dis-

satisfaction with what your

administration is trying to

accomplish. Vote either way,

but vote! One hundred percent

participation would not be too

much!

June, 1971, Election Committee

We want to assure each member

of our Union that no one can

possibly know how you voted.

Your name and the number, used

-151-

4.

A-152

only on the outside of the

mailing envelope, serve the

purpose of identifying the

sender as a bonafide, eligi-

ble voter -- much the same as

the registration Book is used

in a voting booth election.

The inside sealed envelope,

containing the Ballot, retains

the secrecy of your vote. Al-

so, your elected committee

members will be present at the

counting of the ballots to in-

sure that no one shall be able

to know how you voted.

We want to impress -- upon

each member of this Union --

the value of your vote and

urge each one of you to exer-

cise your Right To Vote. We

should have a greater number

of ballots returned and voted

in this election than ever

before in the history of our

Union.

Will you help do this?

January, 1976, Report of Pre-

282/

sident Rutherford.——

The Election Committee along

with the Honest Ballot Asso-

ciation are preparing for the

election of Delegates and Al-

ternates to the 1976 Interna-

tional Convention to be held

-152-

A-153

in April. We urgs you to

vote in this impo.tant elec-

tion. A Delegate of Alternate

to this convention has a re-

sponsible position whose ac-

tions at the convention will

have a direct effect on every

Local Union in the Interna-

tional. Vote wisely.

96. Possehl has admitted on cross-

examination that as editor he does not

permit comments derrogatory of the incum-

bent administration to be printed in the

Buckeye Engineer. However, Possehl has

not foreclosed the dissidents from all

comment in the newspaper. Following the

1971 officers election William Shimman

wrote to Possehl asking to have the fol-

lowing note printed in The Buckeye Engi-

neer : 293/

I want to thank each and every one

of you that voted for me and espe-

cially those who contributed to

and helped in my recent campaign.

With such local support; be as-

sured, I will continue the fight

to bring democracy to our Union.

-153-

A-154

In response, Possehl agreed to print the

note with the exception of the last sen-

tence. 284/

Possehl apparently looked

somewhat askance upon Shimman's sugges-

tion that democracy was lacking in Local

18. Further, there has been no evidence

adduced that dissidents even requested

Possehl to print any other material in

The Buckeye Engineer. It does not appear

that the rebels ever sought to have the

platforms of the respective political

factions presented in The Buckeye Engi-

neer. The fact that some editorial judg-

ment is exercised in the management of

the newspaper does not establish that

The Buckeye Engineer has been used as a

political weapon against the dissidents.

H. CONSPIRACY

97. The evidence establishes the

existence of a conspiracy between cer~

-154-

A-155

tain defendants to surpress the actions

of plaintiff and the dissident movement.

The existence of such conspiracy has been

manifested in various acts and statements

of the defendants which include, but are

not limited to:

a. The organized attempt to pre-

vent the dissidents of District

Two from addressing the membey-

ship at district meetings . 29)

b. The coordinated violence di-

rected at ett and other

dissidents .2986

c. Union financing of the de-

fense of civil actions arising

out of the above violence. 287/

d. The manipulation of plain-

tiff's trial to assure his con-

viction. 288/

e. The unilateral refusal of

the Executive Board to reinstate

plaintiff to union membership at

eo of his suspension.

f. The manipulation of the re-

ferral system as to favor hall

group members and punish dissi-

dents.4£7¥

-155-

A-156

g. The derrogatory and often

scatalogical comments directed

5gyard dissidents by defendants.

h. The absolute control exer-

cised by Possehl over the em-

ployees and — officials

of Local 18.292/

i. The absolute control exer-

cised by Possehl over the elected

ofiicials of Local 18.

1. Resignations from elec-

ted office have been submit-

ted in such a fashion as to

permit the vacancy to be

filled in time for the new

appointee to run for g,7°°*"

tion as an incumbent . 423

This practice has necessarily

assisted the members of

Possehl's "'slate" in main-

taining their respective

ofxices.

2. In filling vacancies in

elected offices the line of-

ficers and/or Executive Board

have always accepted the re-

commendation of Possehl for

such positions. Never once

have Possehl's recommenda-

tions been rejected.294/

3. At Possehl's behest the

Executive Board has censured

dissidents .4#7- Further,

open oppostion to the dis-

-156-

ao

a

A-157

sident movement has been

evidenced by Executive Board

members. 2

The evidence establishes that

Possehl was aware of and condoned

Frank's actions in District Two.

l. The rebels of District

Two personally informed Pos-

sehl of > confiict with

Frank .49/

2. Frank submitted weekly

reports to Possehl and met

with Possehl at staff and

Executive Board meetings. 298/

3. Frank told Ervin Shimman,

"I am the hatchet man from

Cleveland. I come in here

to chop heads and you are one

of the heads I come in here

to chop."439/

4. When Walker Shimman re-

quested Possehl to remove

Frank, Possehl refused, sta-

ting, "I sent him in to do a

job. He hasn't done it yet,

I'm not taking him out of

here. "JUV

5. Possehl testified that

Frank served "without cen-

S , and with correction."

3017

6. At the July 5, 1972 Dis-

trict Two meeting the pending

-157-

A-158

NLRB charges of Oberle and

Ervin Shimman against Local

18 were discussed. In re-

ference to these charges

Frank stated, "I have defen-

ses I could use, but if I do

others will go with me. "302/

k. The prohibition of the dis-

tribution of campaign literature

on union property.303/

-158-

A-159

VI. STATUTES

29 U.S.C. 8185. Suits by and Against

Labor Organizations.

(b) Responsibility for acts of

agent--Entity for purposes of

suit--Enforcement of money judg-

ments. ei ag

Any labor organization which re-

presents employees in an indus-

try affecting commerce as de-

fined in this Act and any emplo-

yer whose activities affect com-

merce as defined in this Act

shall be bound by the acts of

its agents. Any such labor or-

ganization may sue or be sued as

an entity and in behalr of the

employees whom it represents in

the courts of the United States.

Any mgney judgment against a

labor organization in a district

court of the United States shall

be enforceable only against the

organization as an entity and

against its assets, and shall

not be enforceable against any

individual member or his assets.

* * *

(e) Determination of question

of agency. For the purposes of

this section, in determining

whether any person is acting as

an "Agent" of another person so

as to make such other person re-

sponsible for his acts, the

question of whether the specific

-159-

A-160

acts ne~formed were actually

auth : or subsequently rati-

fied ..1 not be controlling.

29 U.S.C. 8411 Bill of Rights.

(a)(1) Equal rights. Every mem-

ber of a labor Organization shall

have equal rights and privileges

within such organization to no-

minate candidates, to vote in

elections or referendums of the

labor organization, to attend

membership meetings, and to par-

ticipate in the deliberations

and voting upon the business of

such meetings, subject to rea-

sonable rules and regulations in

such organization's constitution

and bylaws.

(2) Freedom of speech and as-

sembly. Every member of any

abor organization shall have the

right to meet and assemble freely

with other members; and to ex-

press any views, arguments, or

opinions; and to express at

meetings of the labor organiza-

tion his views, upon candidates

in an election of the labor or-

ganization or upon any business

properly before the meeting,

subject to the organization or

upon any business properly be-

fore the meeting. subject to the

organization's established and

reasonable rules pertaining to

the conduct of meetings: Pro-

-160-

A-161

vided, That nothing herein shali

be construed to impair the right

of a labor organization to adopt

and enforce reasonable rules as

to the resvonsibility of every

member towe “d the organization

as an *~stii tion and to his re-

fraining from conduct that would

interfere with its performance

of its legal or contractual ob-

ligations.

* * *

(4) Protection of the right to

sue. No labor organization

shall limit the right of any mem-

ber thereof to institute an ac-

tion in any court or in a pro-

ceeding before any administrative

agency, irrespective of whether

or not the labor organization or

its officers are named as de-

fendants or respondents in such

action or proceeding, or the

right of any member of a labor

Organization to appear as a wit-

ness in any judicial, adminis-

trative, or legislative pro-

ceeding, or to petition any

legislature or to a communicate

with any legislator: Provided,

That any such member may be re-

quired to exhaust reasonable

hearing procedures (but not to

exceed four-month lapse of time)

within such organization, before

instituting legal or administra-

tive proceedings against such

-i16l1-

A-162

Organizations or any officer

thereof: And provided further,

That no interested employer or

employer association shall di-

rectly or indirectly finance,

encourage, Or participate in,

except as a party, any such ac-

tion, proceeding, appearance, or

petition.

xk *K*

(5) Safeguards against improper

disciplinary action. No men-

ber 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 written

specific charges; (B) given a

reasonable time to prepare his

defense; (C) afforded a full

and fair hearing.

(b) Eftrect of constitution and

bylaws. Any provision of the

constitution and bylaws of any

labor organization which is in-

consistent with the provisions

of this section shall be of no

force or effect.

29 U.S.C. $412 Civil Enforcement.

Any person whose rights secured

by the provisions of this title

[29 USCS 8$8411-415] have been

-162-

ee

A-163

infringed by any violation of

this title [29 USCS 88411-415 of

this title] may bring a civil

action in a district court of

the United States for such re-

lief (including injunctions) as

may be appropriate. Any such

action against a labor organiza-

tion 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.

29 U.S.C. $414. Right to copies of

coliective bargaining agreements.

It shali be the duty of the se-

cretary or corresponding princi-

pal officer of each labor or-

ganization, in the case of a

local labor organization, to

forward a copy of each collec-

tive bargaining agreement made

by such labor organization with

any employer to any employee

who requests such a copy and

whose rights as such employee

are directly afirected by such

agreement, and in the case of

a labor organization other than

a local labor organization, to

forward a copy of any such a-

greement to each constituent

unit which has members directly

aftected by such agreement; and

such officer shall maintain at

-163-

A-164

the principal office of the

labor organization of which he

is an officer copies of any such

agreement made or received by

such labor organization, which

copies shall be available for

inspection by any member or by

any employee whose rights are

affected by such agreement. The

provisions of section 210 [29

USCS 8440] shall be applicable

in the enforcement of this sec-

tion.

29 U.S.C. 8440. Civil Enforcement.

Whenever it shall appear that

any person has vioiated or is

about to violate any of the pro-

visions of this title [29 U.S.C.

8431-441], the Secretary may

bring a civil action for such

relief (including injunctions) as

may be appropriate. Any such

action may be brought in the dis-

trict court of the United States

where the violation occurred or,

at the option of the parties, in

the United States District Court

for the District of Columbia.

29 U.S.C. 8481. Terms of Oftice - Elec-

tion Procedures.

(c) Requests for.distribution of

campaign literature; civil action

for re Seer ot jurisdiction;

inspection of membership lists,

adequate safeguards to insure

fair election. Every national

-~164-

A-165

or international labor organi-

zation, except a federation of

national or international labor

organizations, and every local

labor organization, and its

officers, shall be under a duty,

enforceable at the suit of any

bona fide candidate for office

in such labor organization in

the district court of the United

States in which such labor or-

ganization maintains its princi-

pal office, to comply with all

reasonable requests of any can-

didate to distribute by mail or

otherwise at the candidate's ex-

pense campaign literature in aid

of such person's candidacy to

all members in good standing of

such labor organization and to

refrain from discrimination in

favor of or against any candi-

date with respect to the use

ot lists of members, and when-

ever such labor organizations

or its officers authorize the

distribution by mail or other-

wise to members of campaign

literature on behalr of any

candidate or of the labor orga-

nization itselr with reference

to such election, similar dis-

tribution at the request of any

other bona fide candidate shall

be made by such labor organiza-

tion and its officers, with

equal treatment as to the ex-

pense of such distribution.

Every bona fide candidate shal.

have the right, once within

-165-

A-166

30 days prior to an election

of a labor organization in

which he is a candidate, to in-

spect a list containing the

names and last known addresses

of ali members of the labor or-

ganization who are subject to a

collective bargaining agreement

requiring membership therein as

a condition of employment,

which list shall be maintained

and kept at the principal office

of such labor organization by

a desiguated ofricial thereof.

Adequate safeguards to insure a

fair election shall be provided,

including the right of any

candidate to have an observer

at the polls and at the counting

of the baliots.

(e) Nomination of candidates,

eligibility; notice of election;

voting rights; counting and

publication of results; pre-

servation of ballots and re-

cords. In any election requir-

ed by this section which is to

be held by secret ballot a rea-

sonable opportunity shali be

given for the nomination of

candidates and every member in

good standing shall be eligible

to be a candidate and to hold

ofrice (subject to section 504

{29 USCS 8504] and to reasonable

qualifications uniformly im-

posed) and shall have the right

to vote for or otherwise sup-

port the candidate or candidates

-166-

A-167

of his choice, without being

subject to penalty, discipline,

or improper interference or re-

prisal of any kind by such or-

ganization or any member there-

of....The election shall be con-

ducted in accordance with the

constitution and bylaws of such

organization insofar as they are

not inconsistent with the pro-

visions of this title [29 USCS

88481-483).

29 U.S.C. $482. Enforcement.

(a) Filing of complaint, pre-

sumption of validity of chal-

lenged election. A member of a

labor organization--

(1) who has exhausted the

remedies available under the

constitution and bylaws of

such organization and of any

parent body, or

(2) who has invoked such

available remedies without

obtaining a final decision

within three calendar months

after their invocation,

may file a complaint with the

Secretary within one calendar

month thereafter alleging the

violation of any provision of

section 401 [29 USCS 8481}

(including violation of the

constitution and bylaws of the

labor organization pertaining

-167-

A-168

to the election and removal of

officers). The challenged elec-

tion shall be presumed valid

pending a final decision thereon

(as hereinafter provided) and in

the interim the affairs of the

organization shall be conducted

by the officers elected or in

such other manner as its con-

stitution and bylaws may pro-

vide.

(b) Investigation of complaint,

commencement of civil action hy

Secretary; jurisdiction; preser-

vation of assets. The Secre-

tary shall investigate such

complaint and, if he finds pro-

bable cause to believe that a

violation of this title [29

USCS 88481-483] has occured

and has not been remedied, he

shall, within sixty days after

the filing of such complaint,

bring a civil action against

the labor organization as an

entity in the district court

of the United States in which

such labor organization main-

tains its principal office to

set aside the invalid election,

if any, and to direct the con-

duct of an election or hearing

and vote upon the removal of

officers under the supervision

of the Secretary and in accor-

dance with the provisions of

this title [29 USCS 88481-483]

and such rules and regulations

as the Secretary may prescribe.

-168-

A-169

The court shali have power to

take such action as it deems pro-

per to preserve the assets of the

labor organization.

29 U.S.C. 8483. Application of other

laws.

No labor organization shall be

required by law to conduct elec-

tions of officers with greater

frequency or in a different form

or manner than is required by its

own constitution or bylaws, ex-

cept as otherwise provided by

this title [29 USCS 88481-483]}.

Existing rights and remedies to

enforce the constitution and

bylaws of a labor organization

with respect to elections prior

to the conduct thereof shall not

be affected by the provisions of

this title [29 USCS 88481-483].

The remedy provided by this title

(29 USCS 88481-483] for challen-

ging an election already conduc-

ted shall be exclusive.

29 U.S.C. 8501. Fiduciary responsibili-

ty of officers of labor organizations.

(a) Duties of officers, excul-

patory provisions and resolu-

tions void. The officers,

agents, shop stewards, and other

: representatives of a labor or-

‘ ganization occupy positions of

F trust in relation to such or-

: ganization and its members as a

group. It is, therefore, the

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duty of each such person, taking

into account the special pro-

blems and functions of a labor

organization, to hold its money

and property solely for the

benefit of the organization and

its members and to manage, in-

vest, and expend the same in

accordance with its constitu-

tion and byiaws and any resolu-

tions of the governing bodies

adopted thereunder, to refrain

from dealing with such organiza-

tion as an adverse party or in

behalir of an adverse party in

any matter connected with his

duties and from holding or ac-

quiring any pecuniary or per-

sonal interest which conflicts

with the interests of such or-

ganization, and to account to

the organization for any profit

received by him in whatever ca-

pacity in connection with trans-

actions conducted by him or

under his direction on behals

of the organization. A general

exculpatory provision in the

constitution and bylaws of such

a labor organization or a gene-

ral exculpatory resolution of

a governing body purporting to

relieve any such person of

liability for branch of the

duties declared by this section

shall be void as against public

policy.

(b) Violation of duties; action

by member after refusal or

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A-171

failure by labor Organization

Co commence proceedings; juris-

diction, leave of court, counsel

fees and expenses. When any

officer, agent, shop steward,

Or representative of any labor

Organization is alleged to have

violated the duties declared in

subsection (a) and the labor

organization or its governing

board or officers refuse or

fail to sue or recover damages

or secure an accounting or other

appropriate relief within a

reasonable time after being re-

quested to do so by any member

of the labor Organization, such

member may sue such officer,

agent, shop steward, or repre-

sentative in any district court

of the United States or in any

State court of competent juris-

diction to recover damages or

secure an accounting or other

appropriate relief for the bene-

fit of the labor organization.

No such proceeding shall be

brought except upon leave of the

court obtained upon verified

application and for good cause

shown, which application may be

made ex parte. The trial judge

may allot a reasonable part of

the recovery in any action under

this subsection to pay the fees

of counsel Prosecuting the suit

at the instance of the member

of the labor Organization and

to compensate such member for

any expenses necessarily paid

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A-172

or incurred by him in connection

with the litigation.

29 U.S.C. $523. Retention of rights

under other Federal and State laws.

(a) Except as explicitly pro-

vided to the contrary, nothing

in this Act shall reduce or

limit the responsibilities of

any labor organization or any

officer, agent, shop steward, or

other representative of a labor

organization, or of any trust in

which a labor organization is

interested, under any other

Federal law or under the laws of

any State, and except as_ expli-

citly provided to the contrary,

nothing in this Act shall take

away any right or bar any remedy

to which members of a labor or-

ganization are entitled under

such other Federal law or law

of any State.

29 U.S.C. 8529. Prohibition on certain

discipline by labor organization.

It shall be unlawful for any

labor organization, or any ofri-

cer, 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

Act. The provisions of section

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re

=.

A-173

102 [29 U.S.C. $412] shall be

applicable in the enforcement

of this section.

29 U.S.C. $530. Deprivation of rights

under Act by violence.

It shall be unlawful for any

person through the use of force

or violence or threat of the use

of force or violence, to re-

strain, coerce, or intimidate,

Or attempt to restrain, coerce,

or intimidate any member of a

labor organization for the pur-

pose of interfering with or

preventing the exercise of any

right to which he is entitled

under the provisions of this

Act. Any person who willfully

violates this section shall be

fined not more than $1,000 or

imprisoned for not more than one

year, or both.

49 U.S.C. $1981. Equal rights under the

All persons within the jurisdic-

tion of the United States shall

have the same right in every

State and Territory to make and

enforce contracts, to sue, be

parties, give evidence, and to

the full and equal benefit of

all laws and proceedings for

the security of persons and

property as is enjoyed by white

citizens, and shall be subject

to like punishment, pains,

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A-174

penalties, taxes, licenses, and

exactions of every kind, and to

no other.

42 U.S.C. 81983. Conspiracy to Inter-

fer with Civil Rights

Third. If two or more persons

in any State or Territory con-

spire, or go in disguise on the

highway or on the premises of

another, for the purpose of de-

priving, either directly or in-

directly, any person or class of

persons of the equal protection

of the laws, or of equal privi-

leges and immunities under the

laws, or for the purpose of pre-

venting or hindering the consti-

tited authorities of any State

or Territory from giving or

securing to all persons within

such State or Territory the

equal protection of the laws...

in any case of conspiracy set

forth in this section, if one

or mere persons engaged therein

do, or cause to be done, any

act in furtherance of the object

of such conspiracy, whereby

another is injured in his per-

son or property, or deprived of

having and exercising any right

or privilege of a citizen of

the United States, the party so

injured or deprived may have an

action for the recovery of da-

mages, occasioned by such injury

or deprivation, against any one

or more of the conspirators.

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—

O.R.C. $2305.07. Concract not in

writing.

Except as provided in section

1302.98 of the Revised Code, an

action upon a contract not in

writing, express or implied, or

upon a liability created by

statute other than a forfeiture

or penalty, shall be brought

within six years after the cause

thereof accrued.

O.R.C. $2305.09. Four years; certain

torts.

An action for any of the follow-

ing causes shall be brought with-

in four years after the cause

thereof accrued:

(d) For an injury to the rights

of the plaintiff not arising on

contract nor enumerated in sec-

tions 2305.10 to 2305.12, inclu-

sive, 2305.14 and 1304.29 of the

Revised Code.

If the action is for trespassing

under ground or injury to mines,

or for the wrongtul taking of

personal property, the causes

thereof shall not accrue until

the wrongdoer is discovered,

nor, if it is for fraud, until

the fraud is discovered.

O.R.C. $2305.10. Bodily injury or in-

jury to

personal property.

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An action for bodily injury or

injuring personal property shall

be brought within two years after

the cause thereof a1ose.

O.R.C. $2305.11. Time limitations for

bringing certain actions.

An action for libel, slander,

assault, battery, malicious pro-

secution, false imprisonment,

or malpractice, or upon a sta-

tute for a penalty or forfeiture,

shall be brought within one year

after the cause thereof accrued,

O.R.C. $2305.14. For other relief.

An action for relief not provi-

ded for in sections 2305.04 to

2305.131 [2305.13.1], inclusive,

and section 1304.29 of the Re-

vised Code, shali be brought

within ten years after the cause

thereof accrued. This section

does not apply to an action on

a judgment rendered in another

State or territory.

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VII. CONCLUSIONS OF LAW

A. RUTHERFORD, BLAIR, AND MILLER

98. Plaintiff has alleged nume-

rous claims under federal and state law

against the respective defendants. How-

ever, there has been a paucity of evi-

dence adduced as to the liability of

Rutherford, Blair or Miller on any of

these claims.

b.1. Although there has been

evidence presented which indicates that

Rutherford harbored some hostility to-

ward plaintifr and the dissident move-

ment, such evidence is not conclusive

with respect to plaintift's allegations

as to Rutherford .204/

2. During the election tabu-

lation of February 12, 1972 Rutherford

stated: "If I had [plaintiff] up on a

plane I would push him out without a

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A-178

parachute.'"’ The case of Broomer v.

Schultz, 239 F.Supp. 699 (E.D.Pa. 1965)

aff'd 356 F.2d 934 (1966), is particu-

larly illustrative as to the weight to

be atforded Rutherford's comment. In

Broomer the president of a local union,

Schultz, told a dissident member of the

local, Garrett, that if Shultz had his |

way he would tear up Garrett's union |

book. The court held:

;

Schultz's conduct did not con-

stitute a denial of the freedom

of expression guaranteed by

Section 411. In determining

whether Garret's freedom of

expression was inhibited this

court must consider the setting

in which the incident occurred,

the statement made by the defen-

dant, and the effect upon the

complaint. Not every ungentle-

manly remark made by a local

union's president to a member

is a denial of a Section 41l

right.

Schultz prefaced his remakr with

"If I had my way," the clear

implication of which was that )

Schultz could not tear up

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Garrett's union book. There is

no evidence that Garrett was

intimidated by the statement,

that the remark caused him to

yield the floor, or that it

has inhibited him in speaking

at business meetings.

Rutherford's comment was clearly of a

personal rather than official nature and

falls within the ambit of Broomer. More-

Over, Rutherford's remarks were directed

to Bernard Kelly, not plaintiff and can

hardly be said to have intimidated

plaintiff from pursuing his political

activities on behalt of the dissident

movement.

3. Plaintiff has alleged a

pendant cause of action against Ruther-

ford for malicious prosecution with re-

spect to the filing of criminal charges

against plaintiff for the theft of the

election control list. Plaintiff's

allegations in this regard, however,

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A-180

have been raised in excess of one year

after plaintiff's cause of action ac-

crued, and therefore plaintiff's claim

is barred by the limitation provisions

of Ohio Revised Code 82305.11.203/

4. Plaintiff asserts that

Rutherford's refusal to recuse himself

as the presiding officer of plaintiff's

trial denied plaintiff a fair and im-

partial hearing within the context of

29 U.S.C. $411(a)(5). As wili be dis-

cussed more fully infra, however, Ru-

therfore was not obligated to recuse

himself, nor was plaintifi prejudiced

bf Rutherford's actions.

as There has been evidence

adduced that Rutherford denied dissi-

dent members the opportunity to speak

at district meetings other than their

own. However, the meetings referred

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A-181

to were specially called meetings de-

signed to solicit the opinion of each

district as to certain proposals of the

administration. Rutherford's actions

in this regard were limited to these

special meetings. In presiding at other

state, district, and board meetings,

Rutherford did not suppress dissident

participation in any meeting .226/ Con-

sidering the purpose of the special

meetings, Rutherford's actions may well

have been reasonable within the context

of 29 U.S.C. 8411, albeit a technical

violation of Local 18's By-laws .202/

Be that as it may, plaintift was never

among the dissidents affected by Ruther-

ford's actions and therefore has not

308/ To the ex-

been injured thereby.

tent Rutherford's actions are indica-

tive of the general animus exhibited

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A-182

by the hall group toward the rebels,

such actions are relevant to plaintifr's

conspiracy allegations. However, these

actions do not in and of themselves con-

stitute a violation of plaintiff's rights.

Moreover, plaintiff has not adduced any

other evidence which tends to establish

Rutherford's participation in a con-

spiracy to suppress the dissident move-

ment. In the absence of such evidence,

the Court declines to find Rutherford's

isolated action with respect to the

special district meetings sufficient to

implicate Rutherford in such a conspi-

racy .209/

c. Plaintiff's involvement with

Blair and Miller arises exclusively from

plaintiff's theft of the control list.

Although Blair preferred intra-union

charges against plaintiff and Miller pro-

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secuted these charges, there is no evi-

dence that either of these defendants

acted in bad faith or with ulterior mo-

tives. Nor has plaintiff adduced any

evidence which establishes that Blair or

Miller ever engaged in any other conduct

designed to abrogate the rights of plain-

tift or any other dissident .212/

d. The gravamen of piaintiff's

claims, and the evidence adduced at

trial, is directed at defendants Possehl,

Frank, and Local 18. Plaintiff has

failed to carry his burden of proof re-

garding said claims as to defendants

Rutherford, Blair and Miller. The Court,

therefore, renders judgment in favor of

defendants Rutherford, Blair and Miller

on each and every count of plaintiff's

compiaint.

B. LABOR MANAGEMENT REPORTING AND

DISCLOSURE ACT

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A-184

99. The Bill of Rights for mem-

bers of labor organizations is set forth

in the provisions of 29 U.S.C. 8411. In

enacting the Bili of Rights Congress in-

tended to protect the relationship be-

tween unions and members by providing

such members with certain substantive

and procedural rights designed to pre-

serve democratic processes in the con-

duct of union affairs, and due process

in the enforcement of union disciplinary

measures. E.g.NLRB v. Allis-Chalmers

Mfe. Co., 388 U.S. 175 (1967): Tincher

v. Piasek, 520 F.2d 851 (7th Cir. 1975).

These provisions are not a "catch-all"

for any dissatisfied member, however,

but rather guarantee to union members

those specific rights set forth therein.

E.g. Guarnacci v. Kenin, 234 F.Supp. 429

(S.D.N.Y. 1964) aff'd 339 F.2d 371 (1964)

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A-185

Nor are these rights absolute in nature.

Labor organizations are entitled to en-

act and enforce reasonable regulations

to ensure the orderly process of union

business and the preservation of the

union as an institutional entity. E.g.

Harrison v. Local 54, Amer. Fed. of St.,

C.&M. Emp., 518 F.2d 1276 (3d Cir. 1975);

Kuebler v. Cleveland Lithographers &

Photo. U., Loc. 24-P, 473 F.2d 359 (6th

Cir. 1973); Semancik v. U.M.W., #5, 466

F.2d 144 (3d Cir. 1972).

100a. The primary enforcement

mechanism to redress violations of 8411

is 29 USC 8412. The scope of 8412 is

very broad, providing a cause of action

for any infringement of the rights

guaranteed by 8411. E.g. Vars v. Int.

Bro. of Boilermakers, 320 F.2d 576, 578

(2d Cir. 1963).

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A-186

b. A secondary enforcement

mechanism with respect to 8411 is 29

U.S.C. 8529. Although 8529 adopts the

mechanics of 8412, it differs from 8412

in two important respects: (1) 8529

covers violation of any provision of

' the LMRDA, whereas 8412 is limited to

violation of 8411; (2) 8529 is appli-

cable only to those situations in which

a labor organization, or any employer

thereof, attempts to "fine, suspend, ex-

pel or otherwise discipline" any member,

whereas 8412 is applicable to any type

of infringement of 8411 rights. It is

apparent, however, that 8412 and 8529

are to a degree coextensive in their

coverage of 8411 violations.

C. The provisions of 8529 must

also be considered along with those of

8411(a)(5). Both sections contain the

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A-187

phrase "fine, suspend, expel, or other-

wise discipline."' However, each section

serves a different purpose, 8529 pro-

viding substantive protections and 8411

(a)(5) providing procedural protections:

311/

Section [411(a)(5)] guarantees

to union members, as one of

several independent rights con-

ferred upon them by Title I of

the Act that they all be accor-

ded procedural due process be-

fore being subjected to disci-

plinary action, for whatever

reason. Section [529], on the

other hand, has no bearing upon

the procedures to be followed

in disciplining union members.

Section [529] appears in Title

VI of the Act, a collection of

sections having to do with mis-

cellaneous administrative and

enforcement matters; section

[529] itself is not a source

of additional independent rights,

but is an enforcement provision,

designed, as we have noted, to

effectuate rights conferred in

other sections of the act by

making it unlawful to punish

members who seek to exercise

such rights is prohibited by

section [529] whether inflicted

summarily or after a full pano-

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ply of procedural protections.

These sections are similar though, in

that their respective safeguards are

triggered by union member's exposure to

being "fined, suspended, expelled or

otherwise disciplined."' With the excep-

tion of the term "otherwise disciplined"

this phrase is self-explanatory and does

not require further elucidation. How-

ever, the term "discipline" is not unam-

biguous and requires clarification as

its construction is critical to the in-

vocation of §4ll(a)(5) and §529. A re-

view of the most recent circuit deci-

sions is therefore necessary.

10la. Only one circuit court has

set forth a general definition of "dis-

cipline'"' applicable to both §411l(a)(5)

and §529. In Miller v. Holden, 535 F.2d

912, 915-916 (5th Cir. 1976), the United

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States Court of Appeals for the Fifth

Circuit held:

"Discipline" is not defined by

the LMRDA and, as the commen-

tators have uniformly acknow-

ledged, the legislative history

of the Act is unenlightening.

These circumstances make appli-

cation of the maxim of ejusdem

generis particularly appropriate.

We therefore construe the gene-

ral term "discipline" to conform

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