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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1274%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1017

## Text

——

? , -

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 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

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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
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

-139-

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.

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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-

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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.

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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-

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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

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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

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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

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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

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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.

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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~

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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¥

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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-

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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

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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/

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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

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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-

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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

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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

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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

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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

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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

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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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A-170

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

-171-

————

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

-172-

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.

-175-

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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A-177

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

-17/-

ee

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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A-179

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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A-183
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

-1383-

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)
-184-

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).
-185-

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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A-188
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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A-189

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
to the essential character of
the specifically enumerated
types of discipline -- fine, ex-
pulsion, and suspension. This
process causes us to focus on
the motivation of union conduct
and the manner in which the
penalty is enforced. Union ac-
tion which adversely affects a
member is "discipline" only when
(1) it is undertaken under color
of the union's right to control
the member's conduct in order

to protect the interests of the
union or its membership and

(2) it is directly penalizes him
in a way which separates him
from comparable members in good
standing.

This construction of the statue
is implicit in Seeley v. Brother-

hood of Painters, 308 F.2d 52
(5th Cir. 1962), where we af-
firmed the dismissal of 841ll(a)
(5) and $529 claims. We stated

-189-

|

A-190

that the punishment suffered by a
union member "must have some rela-
tion to the plaintiff's membership
in the labor organization" in or-
der to constitute "discipline" un-
der either section.Id. at 59-60.
Our opinion today merely clarifies
the requisite relation. In par-
ticular, it demonstrates that a
discharge from employment repre-
sents discipline only when the
member's employment status is a
function of some internal union
status, such as pg, hall, or,
conversely, a union blacklist.

In so holding, however, the Fifth Cir-
cuit expressed some concern over the

comparative scope of §411(a)(5) and

6529 ,212/

Some circuits, recognizing the
distinct purposes behind the sub-
stantive protections of §529 and
the procedural protections of
§411(a)(5), have held that the
former section employs a broader
concept of "discipline" than does
the latter section. E.G., Grand
Lodge of Int. Ass'n of Machinists
v. King, 335 F.2d 340 (9th Cir.),
cert. denied, 379 U.S. 920, 85
S.Ut. 278, 13 bee. 20-334
(1964). Our conclusion that
this complaint fails to allege

-190-

A-191

"discipline" within the scope of
either statute renders it unnec-
essary to consider the possibil-
ity that §411(a)(5) employs the
phrase in a more restrictive
sense. But see Wood v. Dennis,
489 F.2d 849, 857-58 (7th Cir.
1973) (en banc) (Stevens, J.,
concurring), cert. denied, 415
U.S. 960, 94 S.Ct. 1490, 39
L.Ed. 2d 575 (1974).

b.1. The concern expressed by
the Fifth Circuit stems from the deci-
sion of the United States Court of Ap-
peals for the Ninth Circuit in Grand

Lodge of Int. Assn. of Machinists v.

King, 355 F.2d 340 (9th Cir. 1964),
cert denied, 379 U.S. 920 (1964), and

the progeny thereof .243/ In Grand
Lodge the Ninth Circuit held that the
summary removal of a union officer from
his position for intra-union political
activity was not "discipline" within the
context of §411l(a)(5) as to entitle such
officer to procedural safeguards prior
to removal, but was "discipline" within

-191-

A-192

the context of §529 and therefore action-
able if violative of such officer's
rights as prescribed by the turpa .244/

However, the ruling in Grand Lodge was

expressly based upon the legislative

history of the LMRDA : 342/

The Conference Report on the Act
stated that §411l(a)(5) "applies
only to suspension of member's
status or an officer in the un-
ion."' Senator Kennedy as a Sen-
ate conferee, advised the Senate
that "this provision does not
relate to suspension or removal
from a union office."" Often
this step must be taken summar-
ily to prevent dissipation or
misappropriation of funds.

The Ninth Circuit made it clear that the
legislative history of the LMRDA, and
the facts of the case at bar dictated

their ruling :2+6/

In deference to the "patent
legislative intent "it has been
held with virtual unanimity
that §411(a)(5) does not apply

-192-

A-193

to removal or suspension from
union oftice. We think these
decisions are correct.

k*xk

Whether (and, if so, in what
circumstances) a member who is
also a union official may be
"fined, suspended, expelled or
otherwise disciplined," other
than by suspension or removal
from his union office without
complying with [841l(a)(5)],
is not before us.

2. Grand Lodge correctly re-

cognized that removal from union office

is to be expected from the operation of

841i(a)(5) due to the manifest legisla-

tive intent of Congress, but Grand Lodge

did not broaden the meaning to be affor-
ded the term "discipline" as used in
8411(a)(5) vis-a-vis $529. The fact

that $529 was for ad applicable in Grand

Lodge is consistent with the respective
underlying purposes of 8529 and 8411(a)
(5), i.e. substantive as opposed to pro-

-193-

A-194

cedural safeguards. This conclusion is

reinforced by the holding in Grand Lodge

that the removed officer was entitled to
redress under 8412 as well as 8529.
Moreover, in subsequent cases dealing
with 8$411(a)(5), but not involving the
removal of a unicn official, the Ninth
Circuit has construed “discipline” in

a fashion consistent with the Fifth Cir-

cuit's holding in Miller. In Phillips v.

Int. Assn. of Bridge S.&0. Iron Wkrs.,

556 F.2d 939, 941 (9th Cir. 1977), the
court held:

The question here is whether
malicious prosecution of a civil
suit by a labor organization or
its officers acting in their
official capacity against a mem-
ber constitutes "discipline"
within the meaning of 8411(a)(5).
We note that that section does
not prohibit union discipline,
but rather seeks to provide
"safeguards against improper
disciplinary action."" This sug-
gests that "discipline" refers

-194-

A-195

to punishment or adverse conse-
quences that a union, operating
through its own tribunal, can
impose either by virtue of its

own authority over its members

or by virture of its relationship
with or influence over the actions
of the employer or potential
employers of its members.

The Ninth Circuit's decision in Phillips

is squarely in accordance with the pre-
cepts of Miller.

c.l. The concept of "discipline"
set forth in Miller and Phillips is also
consistent with that espoused by the
United States Court of Appeals for the

Second Circuit in Morissey v. National

Maritime U. of America, 544 F.2d 19 (2d
317/

Cis: i976): In Morissey a union

officer had a member arrested for dis-
tributing literature in the union hall
; ; : ; ; 318/
in violation of union regulations .——

The member subsequently brought suit

-195-

A-196

against the union alleging that his ar-
rest constituted improper disciplinary

action in violation of 8411l(a)(5). The

Second Circuit held:219/

"Discipline" is a word of many
meanings. A common one is pu-
nishment, particularly by per-
sons in authority, although the
word is less appropriate to des-
cribe an arrest, or even 4a pro-
secution, with no resulting
sanction. In any event, common
usage does not settle the
meaning of "otherwise disciplin-
ed" in [84ll1(a)(5)]. The term
must include something more than
the usual forms of union disci-
pline -- fines, suspensions, or
expulsions -- which are expressly
mentioned, but there is a pau-
city of authority on just what
the term does include...

The scope of the prohibition is
best illustrated by Congress’
statement of what will overcome
it. Congress desired to provide
"safeguards against improper
disciplinary action," not to
outlaw union discipline. A union
may "otherwise discipline" a
member, just as it may fine,
suspend, or expel him, if it

has served him with written
specific charges, has given him
a reasonable time to prepare his

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A-197

defenses, and has afforded him a
full and fair hearing at least
in this context, the phrase
“otherwise disciplined" must be
limited to types of punishment
where compliance with these con-
ditions is feasible. The "other-
wise disciplined" phrase could
not have been meant to cover a
decision to call a policeman to
remove a member from a union's
premises.

2. The Second Circuit's holding

in Morissey is in accordance with Miller

and Phillips that to constitute "disci-

pline" union action must be imposed up-

on a member through the operation of

the union's tribunal, and must penalize

the member in a fashion which separates

him from comparable members in good

standing. This interpretation is for-

feited by the Second Circuit's rejec-

tion of the district court's holding

that "whether a particular [union] ac-

tion constitutes discipline is to be

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A-198

determined by its practical effect ."320/

é. Finally, in Bradford v.

Textile Wkrs. of America, 563 F.2d 1138

(4th Cir. 1977), the United States Court
of Appeals for the Fourth Circuit, in
construing 29 U.S.C. 8529, cited Miller

and Morissey with approval in holding:
321/

The very phraseology of the term
itself, "otherwise discipline",
manifests the legislative pur-
pose to give a broad and liberal
construction to the term, and
one which certainly would com-
prehend anything in the nature
of [union] retaliation for the
exercise of the statutorily pro-
tected right of free speech in
"intra-union political" affairs.

e. The Court finds the rea-
soning of Miller to be persuasive in the
instant case and therefore adopts the
definition of "discipline" set forth
therein. 224/ Further, the Court con-

cludes, being mindful of the exception

-198-

A-199

set forth in Grand Lodge ,223/ that the

phrase "fine, suspend, expel, or other-
wise discipline" is entitled to the same
construction and scope in both 8411(a) (5)

and 8529. C.f. Miller v. Holden, supra;

Wood v. Dennis, 489 F.2d 849, 857-58 (7th

Cir. 1973) (en banc) (Stevens, J. con-

curring) cert. denied 415 U.S. 960 (1978).

102a. As part of a concerted ef-
fort by the defendants~to suppress the
dissident movement of Local 18, plaintiff
has been unlawfully subjected to intimi-
dation, physical violence, economic dis-
crimination, and union disciplinary mea-
sures. Defendants actions in this re-
gard constitute violations of the rights
guaranteed to plaintiff by the Bill of
Rights, 29 U.S.C. 8411.

ei. Intimidation, physical

violence, and economic discrimination

-199-

A-200

have been visited upon plaintiff by de-
fendants in retaliation for plaintiff's
status and activities as a member of the
dissident faction of Local 18 .324/ Such
conduct by defendants has violated the
substantive provisions of 8411 (a)(1),
Equal Rights, and 8411(a)(2), Free Speech,
by infringing upon plaintiff's right to
participate in intra-union political ac-
tivities without fear of reprisai from

incumbent political opponents, e.g.

Bradford v. Textile Workers of America,

supra, Miller v. Holden, supra, Cook v.

Orange Belt Dist. Council of Painters,

529 F.2d 815 (9th Cir. 1976); Grand

Lodge of Int. Assn. of Machinists v.

King, supra; Gleason v. Chain Service

Restaurant 300 F.Supp. 1241 (S.D.N.Y.

1969) aff'd 422 F.2d 342 (1970); Retail
Clerks U., Local 648 v. Retail Clerks

-200-

A-201

Int. Assn., 299 F.Supp. 1012 (D.D.C.

1969); George v. Bricklayers, Masons and

Plasterers Int. U., 255 F.Supp. 239

(E.D. Wis. 1966); to attend and partici-

325/

pate in union meetings, e.g. Keefe

Bros. v. Int. Bro. of Teamsters, Local

992, 562 F.2d 298 (4th Cir. 1977),

Semancik v. U.M.W., #5, supra; Shimman v.

Grothaus, No. C 73-364 (N.D. Ohio, filed

October 15, 1975); Robin v. Shonfeld,

326 F.Supp. 525 (S.D.N.Y. 1971); to meet
and assemble freely with other members,

e.g. Kuebler v. Cleveland Lithographers

& Photo. U., Loc. 24-P, 473 F.2d 359

(6th Cir. 1972); Shimman v. Grothaus,

supra; Johnson v. Local 48, IBEW,, 181

F.Supp. 734 (E.D. Mich. 1960); to cri-

tize union officials, e.g. Salzhandler

v. Caputo, 316 F.2d 445 (2d Cir. 1963);

Sheridan v. Liquor Salesmen's U., Local

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A-202

2, 303 F.Supp. 999 (S.D.N.Y. 1969);
Archibald v. I.U.0.E., 276 F.Supp. 326

(D.R.I. 1967); Deacon v. I.U.0 E., 273

F.Supp. 169 (C.D. Cal. 1962); and to
picket and distribute literature in op-

position to incumbent administration

326/

policies, e.g. Semancik v. UMW, #5,

supra; Int. Bro. of Boilermakers v.

Rafferty, 348 F.2d 307 (9th Cir. 1965);

Gartner v. Soloner, 220 F.Supp. 115

(E.D. Pa. 1963).

2. Plaintiff asserts that de-
fendants' conduct in this regard "con-
stitutes a form of discipline without
statutory procedural safeguards in vio-
lation of [84li(a)(5)]."" However, such

conduct fails to fall within the two-

prong definition set forth in Miller v.

Holden, supra. Although defendants'

conduct certainly has penalized plain-

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siicdiiiliiiaaaial

A-203

tiff “in a way which separates him from
comparable members in good standing," it
can hardly be said to have been “under-
taken under color of the union's right
to control the member's conduct in order
to protect the interests of the union or
its membership." Such conduct is com-
pletely surreptitious in nature and does
not bear even the faintest imprimatur of

the union's tribunal .222/

Moreover,
defendants’ conduct is inimical to the
very essence of the union, serving only
to promote the selfish political and
economic interests of certain select
engineers at the expense of their bre-
thren. Such cenduct, therefore, does
not constitute "discipline" as to give
rise to the procedural safeguards of

8411(a)(5), or to be actionable under

8529. However, defendants’ conduct does

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A-204

constitute an infringement of rights se-
cured by §411l and is therefore redress-
able under §412. c.l. By rejecting pl-
aintiff's petition for reinstatement to
membership in Local 18 at the conclu-
sions of plaintiff's two year suspension,
for the express reason that plaintiff had
engaged in litigation against Local 18,
328/

defendants have violated §41l(a)(4).—

E.g. Phillips v. Int. Assn. of Bridge,

S.&0. Iron Wkrs., Supra; McCraw v. United

Assn. of Journey & App. of Plumbing, 216

F.Supp. 655 (E.D. Tenn. 1963) aff'd 341
F.2d 705 (6th Cir. 1965).222/ Further,
defendants actions resulted in plain-
tiff's continued exclusion from union
meetings and activities and did therefore
constitute a separate denial of equal
rights and freedom of speech and assem-
bly in violation of §411l(a)(1)(2), e.g.
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A-205

McGraw v. United Assn. of Journey & App.

of Plumbing, supra, redressable under

§412. 2. Defendants’ actions, which
were tantamount to expelling plaintiff
from Local 1g ,330/ clearly constitute
"discipline" within the context of §411
(a)(5) and §529 as being taken under the
official auspices of the union to al-
legedly protect union and membership in-
terests, and which penalized plaintiff
as to set him apart from comparable mem-
bers in good standing. Under such cir-
cumstances plaintiff was entitled to the
procedural safeguard of due process set
forth in §411(a)(5) prior to his expul-
sion. In denying plaintiff such due
process, defendants have violated plain-
tiff's rights under §4ll(a)(5). E.g.

Keefe Bros. v. Int. Bro. of Teamsters,

Local 592, supra. Further, such action

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A-206

by the defendants, having been taken in

derogation of plaintiff's rights pursuant

to 8$411(a)(5), also violates $529. Such
violations are also redressable under
8412.

d.l. Plaintiff was denied a
"full and fair hearing" as guaranteed by
8411(a)(5)(C) in his trial before the
membership of District One .231/

2. The full and fair hearing
requirement of 8$411(a)(5) has been con-
strued to mean that traditional concepts

of due process apply to union discipli-

nary proceedings. E.g. Kuebler v. Cle-

veland Lithographers & Photo. U., Loc.

24-P, supra. In this context due pro-

cess requires that an accused member be
afforded notice of the charges lodged
against him, an opportunity *o be heard
and to present evidence, and an impar-

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eh Am Bi te eS

ae eee »

—— Ce

A-207

tial tribunal selected in accordance with
the union's constitution and by-laws.

E.g. Parks v. IBEW, 314 F.2d 886 (4th

Cir. 1965); Ritz v. O'Donnell, 413 F.

Supp. 1365 (D.D.C. 1976); Kiepura v.

Local 1091, USW, 358 F.Supp. 987 (N.D.

Ill. 1973); Null v. Carpenters' District

Council of Houston, 239 F.Supp. 809

(S.D. Tex. 1965). However, the require-
ments of 8411(a)(5) do not provide an

accused union member with the full pano-
ply of rights afforded a defendant in a

criminal trial. See e.g. Tincher v.

Piasecki, supra; Semancik v. U.M.W., #5,

supra; Stein v. Mutual Clerks Guild of

Massachusetts, Inc. 384 F.Supp. 444 (D.

Mass. 1974) aff'd 560 F.2d 486 (lst Cir.
1977). In this regard an accused union
member is not entitled to be represented

by counsel of his choice in union disci-

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A-208

plinary proceedings. E.g. Buresh v.

IBEW, Local 24, 343 F.Supp. 183 (D.Md.

1971) aff'd 450 F.2d 1405 (4th Cir.

1972); Sawyers v. Grand Lodge Int. Assn.

of Machinists, 279 F.Supp. 747 (E.D. Mo.

1967); Cornelio v. Metropolitan District

Council of Philadelphia, 243 F.Supp. 126

(E.D. Pa. 1965) aff'd 358 F.2d 728 (3d

Cir 1966) cert. denied 386 U.S. 975
332/

(1967). Nor need the pleadings in
such proceedings comport with the stan-
dards generally applicable to legal do-

cuments. E.g. Eisman v. Baltimore Reg.

Joint Bd. of Amal. Cloth. Wkrs., 352

F.Supp. 429 (D.Md. 1972) aff'd 496 F.2d
1313 (4th Cir. 1974).

3. In reviewing the merits of
a union disciplinary hearing, the Court
is limited to determining whether there
was some evidence presented by the

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Te En Cael i

A-209

charging party to support the verdict

returned. E.g. Charron v. Am. Fed. of

St., Co., & Mun. Emp. U., 470 F.2d 156

: (6th Cir. 1972).. The Court is not free
to independently evaluate the sufficiency
of the evidence presented, nor to sub-

| stitute its judgment for that of the

union tribunal. E.g. Vars v. Int. Bro

of Boilermakers, supra; Burke v. Int.

Bro. of Boilermakers, 302 F.Supp. 1345

(N.D. Cal. 1967) aft'd 412 F.2d 1063

(9th Cir. 1969). In determining whether

— sa tt i, A I NO A Gren

union disciplinary proceedings have com-
plied with 8411(a)(5), the Court may not
consider either the merits of the pre-

ferred charges, e.g. Int. Bro. of Boiler-

makers v. Hardeman, 401 U.S. 233 (1971),

or the motive of the charging party.

E.g. Burke v. Int. Bro. of Boilermakers,

supra; Pittman v. United Bro. of Car-

-209-

|

I sii iaiceaiideiiaaial

A-210

penters, 251 F.Supp. 323 (M.D. Fla.
1966). So long as the accused union
member receives notice of specified
charges, a fair trial, and an impartial
determination of guilt, the Court's in-
quiry is ended .234/

4. There is no doubt that the.

sine gua non of a fair and full hearing

is an impartial tribunal. There is a
split among authorities, however, as to
the standard by which impartiality is

to be adjudged. In Ritz v. O'Donnell,

supra at 1371, this split is discussed:

Apparently plaintiff Ritz al-
leges that the tribunal was
biased, and therefore his
hearing was not a fair one.
It is, of course, well settled
that an impartial tribunal is
requisite to a full and fair
hearing. See Ticher v. Pia-
secki, 520 F.2d 851, 854 (7th
Cir. 1975); Falcone v. Dan-
tinne,, 420 F.2d I157, 1166
(3d Cir. 1969); Parks v. In-
ternational Brotherhood of
Elec. Workers, 314 F.2d 886,

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A-211

912 (4th Cir. 1963), cert.
denied, 372 U.S. 976, 83 S.Ct.
bean, 30 G86. 24 142 (1963).
There exists some disagree-
ment over the standard by
which impartiality is to be
adjudged, however. In Parks,
supra, the court held that
only upon a showing of "speci-
fic prejudice" as opposed to
"built-in-bias" can a federal
court find a tribunal biased.
314F.2d at 912-13. No other
case has specifically stated
as much. In Falcone, supra,
the court held that plaintiff
was denied a full and fair
hearing where one of the tri-
bunal had, according to the
evidence, prejudged the case
against plaintiff. 420 F.2d at
1166-67; see also Stein v.
Mutuel Clerks Guild of Massa-
chusetts, Inc., 384 F.Supp.
444, 447-48" (D.Mass. 1974)
(one of tribunal prior to
hearing stated that men cha-
rged were guilty and ought

to be punished, full and fair
hearing denied). In Tincher,
supra, however, the Seventh
Circuit held that participa-
tion on the tribunal by a per-
son who has been charged with
wrongdoing in another union
proceeding by one of the cha-
rged parties he is called upon
to judge renders the tribunal
so improper as to amount to

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ee

A-212

denial of a full and fair
hearing. 520 F.2d at 855.
Even though the tribunal mem-
ber stated under oath that the
charge had no effect on his de-
cision "[t]he circumstances
themselves, by presenting a
significant danger of bias,
created the inherent impro-
priety" leading to denial of

a full and fair hearing. Id.

The Court in Ritz did not resolve this
controversy, however, holding that under
any of the foregoing standards the
plaintiff had not been denied an im-
partial hearing .22>/

5. The authorities are in ac-
cord that under any standard of impar-
tiality a demonstration of specific bias
on the part of the finder-of-fact in a

union disciplinary hearing vitiates the

entire proceeding. Compare Tincher v.

Piasecki, supra; Falcone v. Dantinne,

420 F.2d 1157 (3rd Cir. 1969); and,

Parks v. IBEW, supra. The Court is of

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A-213

the opinion, however, that "specific
bias" should not be applied as an abso-
lute standard in all cases. Rather, each
case must be analyzed on its own facts
in order to determine whether the pro-
bability of bias is so manifest as to
encroach upon the full and fair hearing
requirements of §411(a)(5). This inqu-
iry necessarily entails consideration of
such factors as the nature of the pre-
ferred charges; whether investigatory,
prosecutorial or judicial functions are
combined in the same individual or body;
the relationship between the parties

and members of the tribunal and; any
factor which emerges a being unique to
the disciplinary mechanisms involved in
a particular case. The Court's conclu-
sion that a case-by-case approach is
necessary in this area is supported by

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A-214

a careful consideration of the authori-

ties which have addressed the issue.

_2/ have conspired
to deprive plaintiff of his rights under
the LMRDA, 29 U.S.C. §§1985, 411, 501,
529, by reason of plaintiff's status and
activities as a member of the dissident
faction of Local 18 in violation of 1985
(3). Defendants conduct toward plaintiff
has been part and parcel of a pattern
and practice of similar conduct directed
at the entire dissident faction in a con-
certed efrort to suppress and destroy
the dissident movement. This pattern of
conduct has been manifested in a series
of unlawful overt acts20/ directed at
plaintiff and other dissidents which
suffices to establish class-based invi-
diously discriminatory animus on the
part of defendants.

E. STATUTES OF LIMITATION

llla. Defendant has asserted that

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A-266

plaintiff's various federal claims are
barred by limitations.

Dd. The Court need not address
this assertion insofar as plaintiff's
claims under 29 U.S.C. §§411, 501 are
concerned. Since defendants did not
plead the statue of limitations as a
defense to plaintiff's §411 claims in
their initial responsive pleadings, such
detense is deemed waived.2/// See e.g.

Senter v. General Motors Corp., 532 F.2d

511 (6th Cir. 1976) cert. denied v.33.

» 97 S. Ct. 1897 (1976); Crawford

v. Zeitler, 326 F.2d 119 (6th Cir. 1964);

Bongratz

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1274%3A2. Public record. Not legal advice.