# Appendix — International Union of Operating Engineers, Local 406 v. Guidry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3019%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1990 - **Citation:** 498 U.S. 1016 ## Text ec, | “ FIRED § ROO 74 | cr om JOSEPH F. SPANIOL, JR, CLERK $n the Supreme Court of the United States OCTOBER TERM 1990 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406, WILLARD CARLOCK, SR., PETER BABIN III, DON SCHIRO AND C.J. LAIRD Petitioners VERSUS ROBERT GUIDRY Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT APPENDIX Jerry L. Gardner, Jr.* Robert H. Urann William Lurye GARDNER, ROBEIN & URANN, P.L.C. 2540 Severn Avenue, Suite 400 Metairie, Louisiana 70002 (504) 885-9994 Counsel for Petitioners *Counsel of Record October 23, 1990 A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 on i TABLE OF CONTENTS EE Si nas Fk a io eae Ge de bee Cbs eo eR A-1 ey ie Oh dw eae ad Fee elern poe at A-6 I gioco hs ska kv he hoe os koe eee A-9 NN 25 C59 EK 8 ERASE ee Mea ON A-10 2 ofS hg en 0S ak oS 8 wee Oe A-42 ay ik gd a Gv 5 ace e's 0940. wae A-100 5 one Eo k's bis Nw oe 8h a8 aE A-102 ES a Sa hoa be 2 oe wee ea a A-104 A-1l APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT FILED JUL 25 1990 No. 87-4733 ROBERT GUIDRY, Plaintiff-Appellee, V. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406, ET AL.., Defendants-Appellants, Cross-Appellees. On Remand From the Supreme Court of the United States (July 25, 1990) ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC (Opinion May 22, 1990, 5th Cir., 1990 ___ F.2d ___) Before RUBIN, GARZA and KING, Circuit Judges. A-2 PER CURIAM: In our opinion dated August 29, 1989, this court affirmed a district court judgment in favor of plaintiff Robert Guidry (Guidry) as to the liability of the International Union of Operating Engineers, Local 406 and former and current Union leaders (the defendants) for violations of the Labor Management Relations Act (LMRA), 29 U.S.C. § 159(a), and the Labor-Management Reporting and Disclosure Act (LUMRDA), 29 U.S.C. §§ 411(a)(1), (2), (5), and 529. Guidry v. International Union of Operating Engineers, Local 406, 882 F.2d 929 (5th Cir. 1989), vacated, ___ ~US. __, 110 S. Ct. 1465 (1990). We remanded, however, for a reassessment of damages. Id. at 941-45. The Supreme Court subsequently vacated our judgment and remanded for further consideration in light of its decision in Breininger v. Sheet Metal Workers International Association Local Union No. 6, ___. U.S. ___, 110 S. Ct. 424 (1989), a case that addressed the issue of whether hir- ing hall discrimination constituted ‘discipline’ within the meaning of sections 101(a)(5) and 609 of the LMRDA, 29 U.S.C. §§ 411(a)(5), 529. We, in turn, remanded to the district court for further proceedings in light of Breininger, to the extent that Breininger affected our panel’s prior opinion. Guidry, 902 F.2d 335 (1990). Of course, for the reasons explained in our prior opinion, a remand to the district court was necessary, in any event, to reassess Guidry’s damages. See Guidry, 882 F.2d at 941-45 (holding that actual and punitive damages based on Guidry’s LMRDA claims should be reassessed under a one-year limitations period). Guidry now petitions this court for panel rehearing and for rehearing en banc. Guidry argues that a remand on the liability issue is required only as to those claims poten- tially affected by the Breininger decision — i.e., those | A-3 claims based on sections 101(a)(5) and 609 of the LMRDA! — and that our mandate erroneously instructs the district court to make new determinations of liability on all of his claims. He contends that Breininger in no way impacts the district court’s finding of liability based on the defendants’ breach of the duty of fair representation under the LMRA, 29 U.S.C. § 159(a). He also argues that the district court’s finding of liability under the LMRDA may be affirmed on the alternative grounds of Guidry’s LMRDA equal rights anad free speech claims, 29 U.S.C. 8§ 411(a)(1), (2) — theories of recovery that were not addressed by the Supreme Court in Breininger, and that are not affected by the Court’s decision in that case. Having considered Guidry’s motion for rehearing, we conclude that his complaint is well taken, Although it was not our intention to require the district court to reevaluate the defendants’ liability for breach of the duty of fair representation, 29 U.S.C. § 159(a), or for violation of Guidry’s rights to equal union member rights and free speech, 29 U.S.C. §§ 411(a)(5), 529, we admit that our man- date is not completely clear on this point. We therefore modify our prior order, 902 F.2d 335, by deleting the last full paragraph and substituting in its place the following four paragraphs: The Supreme Court’s interpretation of the phrase “otherwise discipline’ in determining whether hiring hall discrimination gives rise to a claim under sections 101(a)(5) and 609 of the 1 Guidry correctly notes that the Supreme Court’s holding reagarding a plaintiff's burden of pleading and proof under the LMRDA looks only to sections 101(a)(5) and 609 of the Act, 29 U.S.C. §§ 411(a)(5), 529, and is based on its construction of the term “‘discipline’’ contained in those sections. A-4 LMRDA does not affect that portion of our panel opinion affirming liability and damages based on Guidry’s claim that the Union breached its duty of fair representation under the Labor Manage- ment Relations Act, 29 U.S.C. § 15%a). See Guidry, 882 F.2d at 937 & n.5. Therefore, this por- tion of our prior opinion is reinstated. On the issue of LMRDA liability, we need remand only with respect to those claims poten- tially impacted by the Supreme Court’s decision in Breininger, that is, Guidry’s unlawful discipline claims based on sections 101(a)(5) and 609 of the Act.? Breininger does not alter the district court’s judgment regarding the defen- dants’ violations of Guidry’s equal rights under section 101(a)(1) and right to free speech under section 101(a)(2). A litigant may successfully seek redress under section 102 for an infringement of these LMRDA rights even if no unlawful “‘discipline”’ is shown. Finnegan v. Leu, 456 U.S. 431, 439 (1982); Murphy v. International Union of Operating Engineers, Local 18, 774 F.2d 114, 122 (6th cir. 1985), cert. denied, 475 U.S. 1017 (1986). If Guidry wishes to pursue his unlawful discipline claims on remand, the district court must determine, in view of Breininger, whether the Union as a collective entity was responsible for hiring hall discrimination against him. the court should make new findings, taking addi- tional evidence if needed, and render its judgment accordingly. . Guidry’s expulsion and the district court’s reinstatement of Guidry to the Union are not at issue as expulsion is explicitly set out in the LMRDA as a form of discipline. See 29 U.S.C. §§ 41 1(a)5), 529. A-5 In our previous opinion in this case, we vacated the district court’s award of LMRDA damages, holding that, due to an intervening Supreme Court case, Reed v. United Transporta- tion Union, 488 U.S. 319 (1989), the district court erred in applying a six-month statute of limita- tions to Guidry’s LMRDA claims. See Guidry, 882 F.2d at 941-42. We remended for a redeter- mination of damages based on violations occurr- ing within one year of filing suit, applying Loui- siana’s one-year limitations period for delictual actions. Id. at 941-45. this holding is unaffected by Breininger, and we therefore remand for a reassessment of damages consistent with the discussion contained in our previous opinion. Jd. A-6 APPENDIX B IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 87-4733 ROBERT GUIDRY, Plaintiff-Appellee Cross-Appellant, Vv. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406, ET AL., Defendants-Appellants Cross-Appellees. Appeal from the United States District Court for the Western District of Louisiana (May 22, 1990) On Remand from the Supreme Court of the United States Before RUBIN, GARZA and King, Circuit Judges. A-7 PER CURIAM: On March 19, 1990, the Supreme Court vacated our judgment in Guidry v. International Union of Operating Engineers, 882 F.2d 929 (5th Cir. 1989), and remended for further proceedings in light of Breininger v. Sheet Metal Workers International Association, 110 S. Ct. 424 (1989). We, in turn, remand to the district court. In Breininger, the court held that the phrase ‘‘other- wise discipline’ under sections 101(a)(5) and 609 of the Labor Management Reporting and Disclosures Act of 1959 (LMRDA) denotes only that punishment ‘‘authorized by the union as a collective entity to enforce its rules.’’ Jd. at 439. In other words, an action must be ‘‘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 member- ship.”’ Id. (quoting Miller v. Holden, 535 F.2d 912, 915 (5th Cir. 1976)). The union need not, however, invoke formal pro- ceedings, and discipline can entail informal or summary penalties as long as adverse action against a union member is not purely “ad hoc retaliation by individual union of- ficers.’’ Id. at 439 n.15. ‘“‘Discipline ‘must be done in the name of or on behalf of the union as an organizational enti- ty.’”’ Id. The petitioner in Breininger ‘‘alleged only that [certain union officers] failed to refer him to employment because he supported one of their political rivals.’ Jd. at 440. Thus, the petitioner failed to allege acts constituting discipline by the union as a collective entity. On remand, the district court must determine, in view of Breininger, whether , and to what extent, the Union as a collective entity was responsible for hiring hall A-8 discrimination against Guidry.! In making that determina- tion, the court may, in its discretion, take additional evidence. Damages should be assessed only for those in- juries caused Guidry by action authorized by the Union as a collective entity. The Court should make new findings and render its judgment accordingly. REMANDED. 1 Guidry’s expulsion and the district court's reinstatement of Guidry to the Union are not at issue as expulsion is explicitly set out in the LMRDA as a form of discipline. A-9 APPENDIX C SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK WASHINGTON, D.C. 20543 March 19, 1990 Mr. Jerry L. Gardner Jr. Gardner, Robein & Urann 2540 Severn Avenue, Suite 400 Metairie, LA 70002 Re: International Union of Operating Enginers, Local 406, et al. v. Robert Guidry No. 89-1297 Dear Mr. Gardner: - The Court today entered the following order in the above entitled case: The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fifth Circuit for fur- ther consideration in light of Breininger v. Sheet Metal Workers International Association Local Union No. 6, 493 U.S. ——— (1989). Very truly yours, /s/ Joseph F. Spaniol, Jr. Joseph F. Spaniol, Jr., Clerk A-10 APPENDIX D Robert Guidry, Plaintiff-Appellee, Vv. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406, et al. Defendants-Appellants, Cross-Appellees. No. 87-4733. United States Court of Appeals, Fifth Circuit. Aug. 29, 1989. Union members brought action against » . on and its official for denial of rights guaranteed by Labur Manage- ment Reporting and Disclosure Act and for breach of union’s duty of fair representation. The United States District Court for the Western District of Louisiana, Lake Charles Division, Earl E. Veron, J., 669 F.Supp. 763, entered judgment for plaintiffs, and defendants appealed as to one union member. The Court of Appeals, King, Cir- cuit Judge, held that: (1) district court’s finding that manipulation of hiring hall procedure was for discriminatory intent was not clearly erroneous; (2) manipulation of hiring hall procdedure constituted ‘discipline’ within meaning of Labor Management Repor- ting and Disclosure Act; and (3) remand for determination of damages under correct statute of limitations was required. Affirmed in part, vacated in part and remanded. a tnt A-11 Appeals from the United States District Court for the Western District of Louisiana. Before RUBIN, GARZA and KING, Circuit Judges. KING, Circuit Judge: The plaintiff-appellee, Robert Guidry sued the defendants-appellants, the International Union of Operating Engineers, Local 406 and former and current Union leaders alleging denial of rights guaranteed by 29 U.S.C. sec. 411(a) (1985), unlawful discipline in violation of 29 U.S.C. sec. 529 (1985), and breach of the duty of fair representation. The United States District Court for the Western District of Louisiana found in favor of the plaintiff.1 The court awarded damages for lost wages, emo- tional distress, punitive damages and attorney’s fees and ordered that Guidry be reinstated to Union membership. We affirm the judgment of liability, but we remand the award of damages for further findings. I. FACTS The facts, as found by the district court, are sum- marized as follows: A. Background and Players Plaintiff-appellee Robert Guidry (‘‘Guidry”) became a member of the International Union of Operating Engineers, Local 406 (the ‘Union‘‘) in 1949. The Union is a | The district court held trial on five related cases simultaneously and found for the plaintiff in each of the cases. Taliaferro v. Schiro, 669 F.Supp. 763 (W.D.La.1987). The defendants appeal the judgment in this case only. A-12 constituent division of the International Union of Operating Engineers and is an unincorporated labor organization with six districts in the state of Louisiana. There is an office within each district, and the statewide central office is in New Orleans. The Union elects a statewide Business Manager and Financial Secretary who works out of the central New Orleans Office. Defendant Peter Babin III (‘‘Babin’’) has served in this position since 1976. The Business Manager negotiates collective bargaining agreements in Louisiana, serves on a committee that negotiates the National Pipe Line Agreement, acts as a trustee of the Union’s Health and Welfare Fund, and appoints and supervises assistant business managers in the various districts who oversee the day-to-day functioning of the Union. These assistant business managers are also known as “business agents’”’ (“BAs”’) and they represent the Union at pre-job con- ferences, administer the hiring hall procedures, and appoint union stewards and master mechanics to act as represen- tatives for the Union on the job. _ Babin’s predecessor as Business Manager appointed defendant Willard Carlock, Sr. (“‘Carlock’’) as BA for the Union’s Lake Charles District. After he took office, Babin retained Carlock as BA until Carlock and his administra- tion of the district came under criminal investigation. Babin fired Carlock on March 10, 1984. Taliaferro v. Schiro, 669 F.Supp. 763, 766 (W.D.La. 1987). Babin appointed defendant Columbus J. Laird (‘‘Laird’’) as BA for the Lake Charles District in 1978. Laird technically had as much authority as Carlock, but he considered Carlock his boss and followed Carlock’s instruc- tions. Laird was in office until January 15, 1985 when he resigned , after an indictment was brought against A-13 him, Carlock, and others. Jd. Babin appointed Don Schiro (‘Schiro’’) to be statewide Pipe Line Business Agent in March 1980. Schiro represented the Union in pipeline construction jobs con- trolled by the National Pipe Line Agreement and was responsible for attending pre-job conferences and appoin- ting stewards and referring workers to pipeline jobs. However, Schiro generally left these deatails to BAs such as Carlock and Laird. Jd. The district court found that Babin’s supervision of the BAs was “totally inadequate.” 669 F.Supp. at 775-76. Upon appointing a BA, Babin instructed him to run the hir- ing hall on a non-discriminatory basis, but otherwise did very little to supervise. He met with each BA semi- annually to discuss local problems. He had no formal evaluation procedure, but instead relied on his own re- election as evidence that Union members were satisfied with the performances of the BAs from their districts. Id. at 765. B. The Lake Charles District Hiring Hall 1) Generally The Union, as the exclusive collective bargaining agent for operating engineers in its jurisdiction, signed two major collective bargaining agreements. The first agree- ment is between the Union and the Lake Charles District, Associated General Contractors of Louisiana, Inc. and governs the building and construction industry (the “Building Trades Agreement’’). The National Pipe Line Agreement covers all transportation mainline pipeline and underground cable work. Both agreements specify that the Union will provide labor through an exclusive hiring hall. A-14 The method for registering applicants for referral is set out in the agreements and involves placing individuals in four groups according to their work experience. The Union has always disregarded this ruie and it has, instead, grouped workers together, keeping only a separate group for oilers. The hiring hall maintains two separate lists for building trades projects and pipeline projects, and, since March 1984, a worker can keep his or her name on only one list at a time. Both lists contain names in the order in which the applicant notifies the Union that he or she is available for work. 2) Departures from the Hiring Hall Procedure Both Agreements allow the contractor to hire some of its employees on any given job outside the structure of the hiring hall. The Building Trades Agreement allows the contractor to hire key personnel directly and to recall any worker who has been employed by that contractor for a least six of the previous twelve months. The National Pipe Line Agreement allows the contractor to hire half its workforce from a group of ‘‘regular employees.”’ Regular employees have either been employed by the contractor in the prior six months or are customarily employed by that contractor whenever it has work. Jd. at 767. Additionally, the Union has developed informal - departures from the regular hiring hall procedure of offer- ing a referral to the first applicant on the list. The first of these exceptions is based on the fact that the Union can, ac- cording to the agreements, name stewards to pipeline pro- jects and master mechanics to building trades jobs to act “*as Union representatives. The procedure for such appoint- ment under the agreements is to name an individual from among the Union members already referred to the job. Carlock, Laird, and Schiro departed from this rule by nam- EE EEE EEE A-15 ing stewards and master mechanics to jobs, regardless of their positions on the list. Schiro sometimes appointed in- dividuals who were not yet even on the list to steward posi- tions when the job they were working on at the time was nearing completion. Jd.at 768. Short-term jobs, which are expected to last one to three days, also were treated as exceptions to the hiring hall procedure. Referrals for these jobs were simply given to those applicants who were present at the Union hall at the time the referral was received, irrespective of the ap- plicants’ places on the list. Union leadership made a similar exception for temporary replacements of workers who were incapacitated or could not otherwise perform their jobs. Jd. at 768. Finally, the Union’s collective bargaining agreement with Dolphin Construction Company required that the Union refer residents of Allen Parish to its construction project there. Allen parish residents, therefore, received referrals to those jobs before non-residents whose names were higher on the list. 3) Manipulation of the Hiring Hall Procedures and the Exceptions The district court found that Carlock ‘‘exploited{ed] and, at times, disregard{ed] entirely the hiring hall pro- cedures to enrich his confederates to the detriment of the plaintiff and others.’’ Jd. at 769. The district court went on to explain specifically the various ways in which Carlock accomplished this: (1) appointing his confederates as stewards or master mechanics irrespective of their skills or their places on the list; (2) abusing the short-term referral exception to designate some jobs as short-term that he knew to be substantially longer than three days; (3) allow- A-16 ing contractors to employ as ‘‘regular employees’”’ workers who did not meet the requirements of that group as outlin- ed in the National Pipe Line Agreement; (4) designating a referral as a recall under the Building Trades Agreement regardless of the individual’s eligibility for recall. Jd. at 769. The district court found that Carlock quelled opposi- tion by means of ‘‘intimidation and threats of retaliation in the form of economic discrimination and physical injury.”’ Id. Also, the court found that Union members feared voting against Carlock because the balloting was not secret and they feared retaliation. Jd. Finally, the court noted that Carlock made it difficult for disgruntled or suspicious workers to check their positions on the out-of-work list by keeping possession of, or control over, that list. Jd. at 769-70. II. PROCEDURAL BACKGROUND After a bench trial, the district court held in favor of the plaintiffs. The court awarded Guidry—who is the only plaintiff against whom this appeal is brought—lost wages totaling $5,310.50, $20,000 for emotional distress, $10,000 in punitive damages. The court also awarded attorneys’ fees in an amount to be agreed to by the parties, or in default of that, to be set by the court. All of the above awarded damages were to be paid by the Union. The court also ordered the reinstatement of Guidry as a Union member. Additionally, the court awarded Guidry $1000 in punitive damages to be paid by Babin. The defendants timely appealed the judgment of the district court, asser- ting that Guidry failed to prove liability and that the damage awards are improper or excessive. Guidry cross- appeals the amount of damages awarded for emotional distress, lost wages, and punitive damages—arguing that —— — ——e A-17 they are inadequate. III. THE QUESTIONS OF LIABILITY The Union, Carlock, Babin, Schiro, and Laird (collec- tively the “defendants’’) argue on appeal that the district court erred in holding them liable under the Labor- Management Reporting and Disclosure Act, 29 U.S.C. secs. 401-531 (1985 and Supp.1986) (“LMRDA”). The defendants also challenge the district court’s conclusion that Union hiring hall procedures violated the duty of fair representation under the Labor Management Relations Act sec. 9(a), 29 U.S.C. sec. 159(a) (1973) (“LMRA”). Fur- ther, the defendants argue that Guidry failed to exhaust his internal union remedies, and therefore, his case should have been dismissed. A. The LMRDA Claim Guidry argued below, and the district court found, that his rights under sections 101(a)(1), (2) of the LMRDA had been abridged, 29 U.S.C. secs. 411(a)(1), (2) and that he had been wrongfully disciplined under sections 101(a)(5) and 609, 29 U.S.C. secs. 411(a)(5)? 2 Sections 411(a)(1), (2), and (5) read as follows: (1) Equal Rights Every member of a labor organization shall have equal rights and privileges within such an organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend member- ship meetings and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regula- tions in such organizations’ constitution and bylaws. (2) Freedom of Speech and Assembly Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, A-18 and 529.3 The court concluded that the defendants’ manipulation of the hiring hall procedures to the detriment of Guidry and the other plaintiffs constituted violations of these provisions. It also concluded that Guidry’s expulsion from the Union was violative of the LMRDA. The defen- dants assert that the evidence presented at trial does not support this portion of the verdict and that, therefore, the district court’s factfinding is clearly erroneous for two reasons: (1) that there was no evidence to support the con- clusion that Guidry exercised rights guaranteed him by the LMRDA and (2) that there was no evidence to support the conclusion that the Union acted to retaliate against Guidry Footnote 2 continued. arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations. (5) Safeguards Against Improper Disciplinary Action No member of any labor organization may be fined, suspended, expell- ed, or otherwise disciplined except for nonpayment of dues by such organizataion or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. Section 101, 29 U.S.C. Sec. 411, is often referred to as the union members’ “Bill of Rights.’ i 3 Section 529 (“Prohibition on certain discipline by labor organization’’) reads as follows: It shall be unlawful for any labor organization or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter. The provisions of section 412 of this title shall be applicable in the enforcement of this section. A-19 for having exercised those rights. Additionally, the defen- dants argue that even if the evidence supports the district court’s underlying fact findings, its legal conclusion that the manipulation of hiring hall procedures constitutes “discipline” within the meaning of the statutes is er- roneous. We address these arguments in order. 1) Did Guidry Oppose Union Leadership? The district court found that ‘“‘Guidry [had] a long history of opposing incumbent Union officers.” 669 F.Supp. at 772. The defendants challenge this finding as clearly erroneous and unsupported by the evidence and assert that Guidry failed to show either that he actually op- posed Union leadership or that his opposition of that leadership was known. They characterize the evidence as demonstrating that Guidry opposed the Union leadership only until 1972,4 and as failing to show—aside from Guidry’s own testimony that he had opposed every ad- ministration since 1956—that his opposition continued beyond 1972. The defendants cite Chapa v. Local 18, 737 F.2d 929, 932 (11th Cir.1984), for the proposition that a plaintiff's ‘‘bald assertion’ that he opposed union leader- ship and that the union retaliated is insufficient to support a verdict for the plaintiff on an LMRDA wrongful discipline claim. We begin by noting that the defendants are urging us to review the district court’s factfinding. Our review is limited by Federal Rule of Civil Procedure 52(a), which pro- vides that we may not set aside such findings unless ‘‘clear- ly erroneous.” This standard of review has been interpreted 4 It is clear from the evidence that the last time Guidry ran for Union office was in 1972. A-20 to mean: [that] [iJf the district court’s account of the evidence is plausible in light of the record viewed in its—entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two per- missible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. _ Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Applying this standard, we conclude that the district court’s factfinding is not clearly erroneous. The defendants’ characterization of the record is incomplete. Far from simply containing Guidry’s conclusory assertions that he generally opposed Union management, the record contains Guidry’s specific testimony of particular instances of his opposition to the Union. Guidry described in detail the circumstances of his decision in 1979 to go to the Federal Bureau of Investiga- tion (‘‘FBI’’) with evidence of Union corruption. Guidry made that decision after discussing his position with fellow Union members. Guidry testified that when Carlock and Laird discovered that he had gone to the FBI, they came on the job site at which Guidry was employed as master mechanic and sought to force his employer to discharge him. Guidry ultimately filed charges against Carlock and the Union’s executive board. Although these events occur- red outside the one-year prescriptive period applicable to Guidry’s LMRDA claim, see infra at section IV.A, they are not too remote in time to have been found by the district court to have triggered Union retaliation. A-21 Guidry’s testimony is replete with examples of challenges he levelled against the Union leadership's opera- tion of the hiring hall. These include a challenge to the hir- ing methods on a job for which he was asked to steward— Guidry openly complained that men who had never worked for the company before were hired as ‘‘regular employees.’’ Guidry also challenged the hiring hall when he discovered that his name had been left off the out-of-work list as a result of a new rule that required him to choose be- tween the building trades and the pipeline lists. According to Guidry’s testimony, as well as that of Union members, Guidry’s opposition to the Union leader- ship was hardly a secret. Charles Lovett, a member of the Union who was called to testify for the plaintiffs, noted that Guidry had been ‘‘bucking the system” at the Union for twenty-five years and had gained nothing. [1] The Union challenges this testimony as inade- quate because it fails to show that Guidry either sought a Union office after 1972 or openly campaigned against the Union leadership in an election after 1972. The defendants argue that all of Guidry’s political activity in the Union is too remote in time to support a claim of retaliation occurr- ing in 1980-83. The flaw in the defendants’ argument is their assumption that in order to assert a violation of sec- tion 101(a)(2) of the LMRDA, a plaintiff must show that he or she spoke out in opposition to Union leadership in the context of an election. We read the statute to contain a much broader protection of speech. The statute itself speaks of the right of every union member to “express any views, arguments or opinions,’’ 29 U.S.C. sec. 411(a)(2), supra n. 2, and does not limit such ex- pression to one occurring in the context of a union election. In fact, the statute refers separately to a union member's A-22 right to express his views upon candidates running for union office. Id. The Supreme Court has characterized the LMRDA as ‘‘the product of congressional concern with widespread abuses of power by union leadership.” Finnegan v. Leu, 456 U.S. 431, 435, 102 S.Ct. 1867, 1870, 72 L.Ed.2d 239 (1982). The “Bill of Rights” portion of that legislation was ‘‘aimed at enlarged protection for members of unions paralleling certain rights guaranteed by the Federal Constitution.”’ Jd. at 435, 102 S.Ct. at 1870. Congress ‘‘recognized that democracy would be assured only if union members are free to discuss union policies and criticize the leadership without fear of reprisal.” Sheet Metal Workers’ Intern. Ass’n v. Lynn, ____ U.S. , , 109 S.Ct. 639, 645, 102 L.Ed.2d 700 (1989) (quoting United Steelworkers of Am. v. Sadlowski, 457 U.S. 102, 112, 102 S.Ct. 2339, 2346, 72 L.Ed.2d 707 (1982). [2] The defendants do not cite, nor have we found, any cases that limit the free speech rights protected by the LMRDA’s Biil of Rights to speech relating directly to an election within the union. While we agree with the defen- dants’ position that the evidence adduced at trial does not support the conclusion that Guidry formally opposed Union leadership after 1972 in the context of a Union elec- tion, we conclude that the district court was not clearly er- roneous in its finding that Guidry openly opposed Union leadership at least up to the time that he filed this suit. 2) Did the Union Act to Retaliate Against Guidry for exercising Free Speech Rights? [3] The district court found generally that hiring hall procedures were abused and threats of retaliation in the form of economic and physical injury were used to control A-23 Union members and to enrich those members who sup- ported the leadership. 669 F.Supp. at 769. The court also enumerated the instances of such reprisals that specifically related to Guidry. In addition to discrimination in the hir- ing hall, the district court found that the Union retaliated against Guidry for his opposition to leadership by denying him a gold Union membership card recognizing his thirty years of service. Also, the district court found that Union economic pressure forced Guidry to violate Union rules and cross a picket line. The court found that when Guidry faced charges for having crossed the picket line, Laird telephoned supporters of the leadership to ensure that they would at- tend the meeting at which the membership was to vote on Guidry’s fate—thus, making his expulsion almost certain. The defendants challenge these factfindings as clear- ly erroneous. They argue that even if Guidry did show that he had been discriminated against in hiring hall referrals, he failed to show that such discrimination was connected to his exercise of rights protected under the LMRDA. They argue that the other union acts found by the district court to have been discriminatory were justified by long- standing Union rules. The record contains abundant evidence, both in the form of testimony and documentation, of the procedures followed by Union leadership in referring applicants to jobs through the hiring hall. The court found twenty-one specific instances in which Union leadership manipulated the hiring hall procedure by employing one of the means outlined above. This resulted in direct harm to Guidry. See Taliaferro, 669 F.Supp. at 781-86 (Appendix). The district court concluded that each improper referral had been used to penalize Guidry (and the other plaintiffs) for their A-24 refusal to support the defendants. Id. at 776.5 We do not find clear error in this conclusion. The defendants argue that Guidry failed to show in each case of hiring hall discrimination that the intent of Union leadership was discriminatory. We disagree. Guidry (and the other plaintiffs) provided substantial evidence, particularly in the testimony of Laird, of the attitude of Carlock toward those members who had “voted wrong”’ in prior elections, and of the control Carlock exercised over the out-of-work list. This evidence, coupled with the clear evidence of Guidry’s dissent from Union leadership, is suf- ficient to support a conclusion that the discrimination was intentional. Even though the evidence is largely cir- cumstantial, it is sufficient to support the verdict. See Vandeventer v. Local 513 of Int’! Union of Op. Eng., 579 F.2d 1373, 1380 (8th Cir.) (holding that primarily cir- cumstantial evidence was sufficient to support verdict that union had taken retaliatory action.), cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978). Additionally, the plaintiffs introduced testimony and exhibits regarding the specifics of each wrongful refer- ral found by the district court. After reviewing the evidence supporting each of the twenty-one wrongful refer- rals, which involved jumping over Guidry’s name on the 5 The district court also concluded that each improper refusal con- stituted a breach of the duty of fair representation under 29 U.S.C. sec. 159(a). 669 F.Supp. at 775-76. The defendants dispute this conclusion, solely on the gound that the evidence is insufficient to support the fact- finding that intentional discrimination in hiring hall referrals had occur- red. We therefore conflate their arguments under the LMRDA and the duty of fair to the extent concern the sufficiency of the evidence. is, we address only once the issue of whether the find- ing that the operation of the hiring hall was intentionally discriminatory was clearly erroneous. A-25 out-of-work list, this court is convinced that the district court’s factfinding is correct and supported by substantial evidence. We, therefore, do not disturb the district court’s conclusion that discrimination in the hiring hall referrals took place and was used in retaliation for Guidry’s failure to support Union leadership. 3) Does the Manipulation of Hiring Hall Procedures Constitute Discipline within the Meaning of sec- tions 101(aX5) and 609 of the LMRDA? [4] The defendants challenge the district court’s holding that the wrongful hiring hall referrals constitute “discipline” within the meaning of sections 101(a)(5) and 609 of the LMRDA, 29 U.S.C. sees. 411(a)(5) and 529. they argue that according to Finnegan v. Leu, supra, the term “discipline” in section 609 refers to actions taken by the union that diminish the membership rights of a union member. Hiring hall discrimination does not qualify, accor- ding to the defendants, because hiring hall referrrals must be made available to non-union members. United Ass’n of Journeymen, Local 198 v. NLRA, 747 F.2d 326 (5th Cir.1984); National Labor Relations Act, sec. 8(b\(1)(A), (b\(2), 29 U.S.C. sec. 158(b)(1)(A), (b)(2). The issue presented here—whether proof that a union has retaliated against one of its members for his exer- cise of a right protected under section 101 of the LMRDA constitutes ‘‘discipline‘‘ within the meaning of section 609 of that act—has been addressed by a number of courts with apparently contradictory results. We conclude, however, that the cases can be harmonized, and we hold that under the facts presented here, Guidry has made out a proper claim for wrongful discipline in violation of the LMRDA. A-26 In Miller v. Holden, we held: Union action which adversely affects a member is “discipline” only when (1) it is undertaken under color of the union’s right to control the member’s conduct in order to protect the interests of the union or its membership, and (2) it directly penalizes him in a way which separates him from comparable members in good standing. 535 F.2d 912, 915 (5th Cir.1976). We decided that the claim brought in Miller—that the plaintiff’s discharge from his employment by a trust established by, but separate from, his union—did not state a cause of action under the LMRDA because the discharge did not constitute “discipline” under the statute. In determining the meaning of discipline we loo’ ed first to the statute and its legislative history, id. at 914 n. 5 (citing 1 Legislative History of LMRDA of 1959), 338, 516, 619, 687, 858 (NLRB ed. 1959)), but concluded that neither was enlightening on the issue. We, therefore, applied the prin- cipal of statutory construction of ejusdem generis and con- strued the general term discipline to conform to the essen- tial character of the three specific types of discipline listed in the statute: fine, expulsion, and suspension. Id. at 914-15. Our result required, as quoted above, that the union action separate the plaintiff from other union mem- bers in good standing to constitute discipline. We followed the holding in Miller to find that manipulation of hiring hall referrals to the detriment of the plaintiff constituted discipline within the meaning of LMRDA in Keene v. International Union of Op. Eng. Local 624, 569 F.2d 1375 (5th Cir. 1978). In that case, the plaintiff had unsuccessfully run for union office. He showed that after his loss in the election he received virtually no refer- rals through the union’s hiring hall and that over two hun- A-27 dred people with less priority on the out-of-work list receiv- ed referrals in preference to him. We held that a jury could reasonably conclude that such aiscrimination is referrals constituted discipline for exercising rights protected under the LMRDA. The question, however, is not so easily resolved. The Supreme Court addressed the issue of what constitutes “discipline” under section 609 of the LMRDA in a different but related, context in Finnegan v. Leu, supra. In that case, the plaintiffs sued under the LMRDA after they were discharged from their employment as union business agents following the election of Leu as president of the union. The plaintiffs had openly supported Leu’s rival, the incumbent president, in the campaign. At trial, Leu ex- plained that he had discharged the plaintiffs because he felt that they were loyal to the incumbent and would be unable to implement his policies. The Court held that the term discipline in section 609 ‘‘refers only to retaliatory actions that affect a union member’s rights or status as a member of the union.” 456 U.S. at 437, 102 S.Ct. at 1871 (emphasis added). It concluded that the discharge of the plaintiffs from their appointive union positions was not within the scope of “other discipline’ contemplated by section 609. Id. at 439, 102 S.Ct. at 1872.6 The Court reasoned that the 6 The Court went on to address the question of whether section 102 of the LMRDA, 29 U.S.C. sec. 412, provided independent authority for the suit. Section 102 provides that: Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including in- junctions) as may be appropriate. A-28 the LMRDA was intended to protect rank-and-file union members, rather than union officers or employees. Therefore, while the plaintiffs’ right to campaign against a candidate for union president was protected, such cam- paigning did not immunize them from discharge at the pleasure of the new president from their jobs as union employees. In cases not involving the loss of employment within the union itself, an apparent conflict in interpreting Fin- negan has arisen in the cases. In Hackenburg v. Interna- tional Bhd. of Boilermakers, Local 101, 694 F.2d 1237 (10th Cir. 1982), the court followed Finnegan to hold that union members who were ‘‘benched’’—that is they received no referrals—following a wildcat strike had not been ‘“‘other- wise disciplined” within the meaning of the LMRDA. Footnote 6 continued. The Court noted that the intended relationship between this provision and section 609 was ‘‘not entirely clear,’’ 456 U.S. at 439, 102 S.Ct. at 1872, but indicated that a litigant could maintain an action under sec- tion 102 without necessarily stating a violation of section 609. However, it concluded that in the circumstances before it no “rights secured’’ by the subchapter had been infringed, holding that whatever limits the sub- chapter placed on the union’s authority to use dismissal to suppress dis- sent, it did not restrict union leaders from choosing a staff with views compatible with their own. Jd. at 440-41, 102 S.Ct. at 1872-73. In Sheet Metal Workers’ Inter. Ass’n v. Lynn, ____ U.S. ___, 109 S.Ct. 639, 102 L.Ed.2d 700 (1989), the Court recently limited this portion of the holding in Finnegan to cases in which the union employment was appointive, rather than elective. The Court reasoned in Lynn that when an elective official is removed from his post, the union members are denied their chosen representative, and the chilling effect on free speech is more widespread. Id. 109 S.Ct. at 645. Because we find that a violation of section 609 has occurred here, it is clear that this suit could also be maintained under section 102. That does not, however, affect the result here. A-29 In Hackenburg, the union, following the terms of its collective bargaining agreement with an employer, depriv- ed the plaintiffs of any job assignments for ninety days as a result of their involvement in a wildcat strike. The plain- tiffs sued, arguing that they had been ‘otherwise disciplin- ed” within section 101(a)(5), without the procedural protec- tions afforded by that section. The court determined that the “sanctions imposed were employment related rather than internal union related,’’ 694 F.2d at 1240, and, relying on Finnegan, held that the procedural safeguards of section 101(a)(5) were not available because the punishment was not related to the union members’ rights or status as members. Id. at 1239. Turner v. Local Lodge #455 of the Int’l Bhd. of Boilermakers, 755 F.2d 866 (11th Cir.1985), involves cir- cumstances very similar to those in Hackenburg. The plain- tiffs in Turner also suffered a ninety-day benching pur- suant to the terms of a collective bargaining agreement as a result of their refusal to cross an illegal picket line. The court first noted that the plaintiffs’ contention that the benching had actually occurred in retaliation for their exer- cise of rights protected by section 101(a)(1) and (2) of the LMRDA had been properly taken away from the jury because of the lack of evidentiary support. It then address- ed the plaintiffs’ contention—which was identical to that in Hackenburg—that the benching had violated section 101(a)(5) because proper procedures had not been followed before the union imposed the sanction. The court considered the broad language in section 101(a)(5) and stated that “the sweeping language . . . can- not be read out of context, but must be taken as backing and support for union members exercising their ‘Bill of Rights’ and that any union disciplinary measure unrelated to the ‘Bill of Rights’ is not covered.” Turner, 755 F.2d at A-30 869. Thorefore, the absence of any claim of retaliation by the union was fatal to the plaintiffs’ LMRDA claim. The court then went on to state that under the interpretation of “discipline” found in Finnegan, the benching in the case before it did not constitute discipline, because it did not af- fect the plaintiffs’ rights as members of the union in as much as union membership is not a requirement in order for one to be carried on the out-of-work list and receive employment referrals. Jd. In concluding, however, the court noted that ‘‘the case might be different”’ if there had been evidence of, for example, ‘retaliation for exercise of a protected right.” Id. at 870. Such a different result was reached by the Sixth Cir- cuit in Murphy v. International Union of Op. Eng. Local 18, 774 F.2d 114 (6th Cir.1985), cert. denied,475 U.S. 1017, 106 S.Ct. 1201, 89 L.Ed.2d 315 (1986), in which the cour’, found that a denial of work assignments through a hirirg hall to a union member in retaliation for his oppositioa of union leadership could be considered ‘discipline’ within the meaning of section 101(a)(5). Murphy, 774 F.2d. at 122. The court went on to uphold the district court’s conclusion that although the union’s actions were not ‘discipline,’ they were nevertheless actionable as violative of sections 101(a)(1) and (2). The court distinguished Finnegan on the ground that the Finnegan court had been concerned with union employees and the right of a union leader to choose people to help him run the union. Jd. at 123. The court stated: ‘‘Plainly, the Supreme Court in Finnegan did not in- tend to rule out [29 U.S.C.] section 411 as a protection against manipulative discrimination on behalf of an or- dinary union member seeking to exercise his right of ex- pression at union meetings.” Jd. The court also distinguish- ed Turner and Hackenburg simply by noting that the unions involved in both had acted pursuant to collective bargaining agreements. Murphy, 774 F.2d at 122 n. 5. The A-31 court did not address the question of whether the language in Turner, which states that a refusal to refer a member to employment does not affect his right as a member, 755 F.2d at 869, precluded a determination that such a refusal could constitute discipline in any circumstances. In Moore v. Local 569 of the Int'l Bhd. of Elec. Workers, 653 F.Supp. 767 (S.D.Cal.1987), the court directly addressed the problem avoided in Murphy—that Turner appears to preclude a holding that discriminatory referral procedures affect union members’ rights as a member of the union. The court began by analyzing the reasoning in the problematic dicta from Turner that because non- members could take advantage of a union hiring hall, membership rights are not affected by a discriminatory hir- ing hall. Moore, 653 F.Supp. at 770. The Moore court decid- ed that this language did not preclude a determination that membership rights were ever affected by such discrimina- tion for two reasons. First, the court inferred that in Turner, the plaintiffs no longer had a right to be referred to work because of their involvement in wildcat strikes pro- hibited under the collective bargaining agreement. Id. Se- cond, and more importantly, the court reasoned that one of the rights of a union member was to receive non- discriminatory referrals from the union hiring hall. The court concluded that the ability of non-members to place their names on the out-of-work lists did not diminish and, in fact, had no relationship to that right. The court, therefore, rejected the union’s contention in the case before it that the dicta in Turner regarding the issue of whether benching could constitute discipline should control. It found instead that the plaintiffs’ allegations stated a cause of action under section 609 of the LMRDA. Id. at 770-71. We agree with the Moore court’s rejection of this A-32 dicta from Turner in circumstances such as those before us. It is apparent from the evidence that Guidry’s name was repeatedly skipped over on the out-of-work lists in retalia- tion for his out-spoken opposition to Union leadership. Here, as in Murphy, and as distinguished from Turner and Hackenburg, there was evidence of a reprisal for exercise of rights protected under the LMRDA. The Turner court itself noted that if there is evidence of union retaliation the case might be different. We also point out that here, as distinguished from Finnegan, the question involves the right to fair treatment of a union member by his union. In Finnegan, the plaintiffs were seeking to retain their employment by the union, not something to which every union member is entitled. Here, on the other hand, the plaintiff simply seeks not to be singled out for unfair treat- ment by his union. We simply cannot agree with the defen- dants’ contention that discriminatory administration of the hiring hall does not represent the kind of discipline covered by the LMRDA. B. Exhaustion of Union Remedies. The defendants challenge the district court’s ruling on the ground that Guidry failed to exhaust his internal union remedies, and, as a result, they argue that his suit should have been dismissed. In his complaint, as well as on brief to this court, Guidry asserts that pursuit of his inter- nal union remedies would have been futile, and therefore, he is not required to exhaust that avenue before filing this suit. The district court did not directly address this ques- tion, although it clearly did not find that Guidry’s failure to exhaust internal union remedies precluded this suit. Section 101(a\4) of the LMRDA, 29 U.S.C. sec. | 411(a)(4), allows courts in their discretion to require that a union member exhaust his internal remedies before filing A-33 suit. See 29 U.S.C. sec. 411(a)(4); Hammons v. Adams, 783 F.2d 597, 603 (5th Cir.1986); Chadwick v. International Bhd. of Elec. Workers, Local 175, 674 F.2d 939 (D.C.Cir.1982). [5,6] Before a union member may bring suit against his union for breach of the duty of fair representation under section 301 of the LMRA, 29 U.S.C. sec 185, the member must either exhaust union remedies or show an adequate reason for not doing so. Clayton v. International Union, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981). Here too, courts have discretion to decide whether to require such exhaustion. Jd. at 689, 101 S.Ct. at 2095. Factors rele- vant to the inquiry of whether to require exhaustion are: (1) whether union officials are so hostile to the member that he cannot hope to obtain a fair hearing; (2) whether the union proceedures are adequate; and (3) whether requiring ex- haustion would unreasonabaly delay the member in pursu- ing his rights. Id. Guidry asserts that the first of these ex- ceptions is applicable here. [7,8] The Union Constitution and By-laws, admitted into evidence in the court below, provide simply that the local union’s determination of any grievance shall be final and binding. Neither provides specific grievance pro- cedures for the type of complaint Guidry asserts. In such absence of procedural requirements, an employee may pro- ceed to file suit after pursuing his contractual remedies. Hammons, 783 F.2d at 602. Additionally, where it is clear, as here, that because the complaint is directed at those of- ficials who would hear Guidry’s complaint, the member should be excused for his failure to exhaust internal remedies. Hayes v. Brotherhood of Ry. and Airline Clerks/Allied Servs. Div. 734 F.2d 219 (5th Cir.), cert. denied, 469 U.S. 935, 105 S.Ct. 336, 83 L.Ed.2d 272 (1984). A-34 IV. THE DAMAGE AWARDS A. The Statute of Limitations [9] The district court, following Local 1397, United Steelworkers of Am. v. United Steelworkers of Am., 748 F.2d 180 (3d Cir.1984), applied a six-month statute of limitations to the plaintiffs’ LMRDA claims. It therefore looked back six months prior to the date of filing of the suit to determine the amount of damages. After the district court rendered its decision, and after oral argument on this case, the Supreme Court overruled Local 1397. Reed v. United Transp. Union, ___. U.S. ___., 109 S.Ct. 621, 102 L.Ed.2d 665 (1989). The Court held in Reed that, unlike claims brought under section 301 of the LMRA, see DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), claims brought under section 101(a)(2) of the LMRDA are more akin to civil rights claims than to unfair labor practice charges. Therefore, the court reasoned under the rule established in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the state general or residual personal injury statute of limitation should apply to actions brought under section 101(a)(2). Therefore, we look to Louisiana state law to determine the appropriate statute of limitations for the LMRDA claims. The claims under section 301 of the LMRA are, however, still subject to the six-month limitation. | [10] Article 3492 of the Louisiana Civil Code provides a one-year limitations period for delictual actions, which in- clude personal injury actions. La.Civ.Code Ann. art. 3492 (West supp.1989). Therefore, the limitations period that should be applied to Guidry’s claims under the LMRDA is A-35 one year.’ Because the damages amount must be based in part on facts not found by the district court, we must re- mand the damages portion of this cause for a redetermina- tion of the amount of damages to be awarded. However, we can and will address the legal issues raised by the parties regarding the types of damages awarded. 7 A subsidiary issue is whether Reed should be afforded retroactive ef. fect in this case. We believe that it should. The general rule is that federal cases should be decided according to the law existing at the time of the decision. Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 577 (1987). In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-09, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), however, the Supreme Court declined to apply retroactively a limita- tions period that would have time barred a litigant’s lawsuit. The Court refined a three-part nonretroactivity test: (1) the supervening decision must establish an unforeseen and unforeshadowed principle of law, as where the Court has overruled clear circuit precedent on which the . ts may have relied; (2) the purposes of the substantive law upon h the limitations period operates would not be served by retroactivi- ws and (3) retroactive application would produce inequitable results. /d. at 106-07, 92 S.Ct. at 365-56. These factors provide no basis for refusing retroactive application of Reed to this case. Prior to ering bars established precedent in the Fifth Circuit fa appropriate state statue of limitations in sec- 101(a cusoe Seucd TOaL Grand Lodge of Int'l Ass'n of Machinists & Aerospace Workers, 445 F.2d 546, 548-60 (5th Cir.1971), cert. denied, 404 U.S. 1024, 92 S.Ct. 674, 30 L.Ed.2d 674 (1972) (applying a one-year Alabama statute of limitations for tort actions). No post-DelCostello Fifth Circuit decision definitively altered this rule until the district court below adopted the Third Circuit's Local 1397 interpretation of a six- month limitations period. Thus, Chevron’s first factor clearly is not satisfied: Fifth Circuit precedent was not overruled by, but in fact sup- ported, the Reed decision; at most, the limitations issue was unsettled after DelCostello. Likewise, the remaining two Chevron factors, cannot be met. Applying Louisiana’s one-year limitations period to determine damages in this case would further the remedial goals of section 101(a\(2) of the LMRDA without substantially frustrating any federal policy of repose, and would not be inequitable, as litigants in this Circuit could not have justifiably relied on a six month limitations period prior to Reed. See Goodman, 482 U.S. at 662-64, 107 S.Ct. at 2621-22. A-36 1) Punitive Damages ant “ The district court awarded punitive damages to be paid both by the Union and Babin, relying on International Bhd. of Boilermakers v. Braswell, 388 F.2d 193, 199 (5th Cir.), cert. denied, 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 854 (1968), and Parker v. Local Union No. 1466, United Steelworkers of Am. 642 F.2d 104, 106 (5th Cir.1981), for the proposition that punitive damages may be awarded under the LMRDA where the union acted with “actual malice or reckless or wanton indifference to the rights of the plaintiff.”” Braswell, 388 F.2d at 199. On appeal, the defendants urge us to overrule this Circuit’s precedent and rule that punitive damages are unavailable in LMRDA cases. Alternatively, they argue that the evidence does not support the finding of malice on which the punitive damage award depends. We find neither argument convincing. As to the first argument, we simply point out that as a panel of this court, we are not free to overrule the prece- dent of prior Fifth Circuit cases. Only the en banc court has the necessary power to do so. National Bank of Commerce of Dallas v. All American Assurance Co., 583 F.2d 1295, 1301 (5th Cir.1978). As to the defendants’ second argu- ment, we point to our discussion supra at parts III A. 1 and | 2 of the sufficiency of the evidence. We conclude that the evidence adduced at trial supports the district court’s fin- ding of malice, and therefore we uphold the court’s decision to award punitive damages, although, for the reason noted below, we vacate the amount of the award. On cross-appeal, Guidry argues that the amount of punitive damages awarded was insufficient and he seeks enhancement of the amount to $250,000. The only argu- A-37 ment Guidry advances for this position asserts essentially that because the Union can afford more, this award is not sufficiently punitive. Because we remand this case for a redetermination of the damage award, we decline to ad- dress this issue. Because the district court may have been influenced in its decision on punitive darnages by the amount of actual damages, we vacate the punitive damage award and leave it to the district court, in its discretion, to fix once again the amount of punitive damages when the amount of actual damages has been recomputed. 2) Emotional Distress [11] The defendants also contest the award of damages for emotional distress, arguing that because the plaintiffs failed to present evidence of any physical manifestations of that distress, such an award is unavailable under the LMRDA. We agree that emotional distress ‘‘standing alone does not constitute a sufficieat basis for the awarding of damages under the [LMRDAj|.”’ Bise v. International Bhd. of Elec. Workers, Local 1969, 618F.2d 1299 (9th Cir.1979) (quoting International Bhd. of Boilermakers v. Rafferty, 348 F.2d 307, 315 (9th Cir.1965)), cert. denied, 449 U.S. 904, 101 S.Ct. 279, 66 L.Ed.2d 136 (1980). In order to protect against spurious claims for e1:0- tional distress that might drain union coffers and thereby deprive other members of effective representation, some courts have required LMRDA claimants who seek damages for emotional distress also to adduce some evidence of actual injury. See id. Other courts do not im- pose an actual injury requirement. Compare Bise, supra with Bradford v. Textile Workers of Am., 563 F.2d 1138, 1144 (4th Cir.1977). Whether to impose an actual injury re- quirement, as well as what such a requirement entails, are issues of first impression for this Circuit. A-38 We conclude, as the district court did, that LMRDA claimants who seek damages for emotional distress must adduce some evidence of actual injury. The environment in which LMRDA claims arise—discipline and termination by both unions and employers—is emotionally charged at the outset and, thus, one in which claims for emotional distress are likely to be the rule rather than the exception. Moreover, the subjective nature of these claims makes it particularly difficult to dismiss meritless actions at early stages in the litigation—before the union has gone to con- siderable expense in defending the action. Hence, we agree with the Ninth Circuit that an actual injury requirement should be imposed in order to protect unions in their representative capacities from malice from within. [12] A further issue to be resolved, however, is what type of evidence will suffice to establish ‘‘actual injury.” Despite professed agreement, the two circuit courts that have addressed this prob e “actual injury” in different ways. In Rodonich™). House Wrecker’s Union Local 95, 817 F.2d 967 (2d Cir.1987), the Second Circuit upheld the following jury instruction: “{yjou must find such mental or emotional distress based upon the par- ticular plaintiff’s physical condition or medical evidence.”’ Id. The Second Circuit then declared that ‘‘[tjhe qualifica- tion that claims of emotional distress be supported by a physical manifestation of injuiry is an appropriate safeguard against the award of excessive and speculative damages.” Id.; see also Petramale v. Local 17, Laborers’ Int’l Union of North Am., 847 F.2d 1009, 1012 (2d Cir.1988). The Ninth Circuit, however, construes “‘actual injury” more broadly. In Bise and its progeny,® lost wages, as well as physical manifestations of emotional 8 See, e.g., Bloom v. International Bhd. of Teamsters, 752 F.2d 1312, 1315 (9th Cir. 1984). A-39 distress, served as sufficient indication of actual injury. In the case before us, the distxict court awarded damages for emotional distress to those plaintiffs who could demonstrate actual injury through lost wages. We adopt the Ninth Circuit’s approach. We fail to see why physical manifestations of injury should be the sole guarantor of genuineness; financial distress may well be the most reliable and frequent cause of mental distress. Moreover, whatever the indicia of actual injury used, plain- tiffs who seek damages for emotional distress must present credible evidence of that distress. District courts should not be hidebound to antiquated notions about the nature of mental injury and suffering in order to determine whether an LMRDA claim is genuine. We therefore affirm the district court’s interpretation of the actual injury require- ment. We vacate the award, however, for reconsideration along with the other components of damages to be awarded. 3) Attorneys’ Fees [13] The district court awarded to Guidry and the other plaintiffs ‘reasonable’ attorneys’ fees. The court looked to Hall v. Cole, 412 U.S. 1, 4-5, 93 S.Ct. 1943, 1945-46, 36 L.Ed.2d 702 (1973) to determine the standards for an award of reasonable attorneys’ fees. Hall allows an award of attorneys’ fees to a successful party even in the absence of statutory or contractual authority when his op- ponent has acted in bad faith or when his success in the litigation confers a benefit on members of an ascertainable class, and where the court’s award of attorneys’ fees will make it possible to spread the cost of litigation over the class of beneficiaries of the suit. The court below held that, in this case, attorneys’ fees were available under both theories. A-40 On appeal, the defendants argue that the district court’s application of these two theories was an error of law. We agree. The bad faith exception to the general rule—that ab- sent contractual or statutory authority, attorneys’ fees are not recoverable—is set out in detail in Shimman v. Interna- tional Union of Op. Eng., Local 18,744 F.2d 1226, 1228-34 (6th Cir.1984) (en banc), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985). Shimman makes clear that the focus of the bad faith inquiry is not the actions that precipitated the law suit, but rather the manner in which the litigation itself is carried out. That is, the rule is intended to penalize the litigant who brings to court a frivolous suit or defense, or abuses the process so as to create an inquiry separate from the underlying claim. Jd. at 1231. This court has adopted the same reasoning. See, e.z., Batson v. Neal Spelce Assoc., 805 F.2d 546, 550 (5th Cir.1986). There is no evidence that the defendants in this case have either brought a frivolous defense or pursued the litigation in a vexatious manner. For that reason, we disagree with the district court’s holding that the bad faith exception is applicable here. [14] The common benefit theory is also unavailable to Guidry. The Shimman court discussed this theory as well. In Shimman, as in the instant case, the underlying litiga- tion resulted in a damage award benefitting only the plain- tiffs personally. The plaintiffs contended in Shimman, as they do here, that although the money awards do not benefit the union membership as a whole, an incidental benefit of the awards—dispelling the chill on free speech created by union leadership—does inure to the benefit of all union members. A-41 The court in Shimman explicitly rejected this theory. 744 F.2d at 1235. The court reasoned that the idea of the common benefit theory is to shift the costs of litigation to those who would have had to pay if they had brought the suit. Id. In Shimman, as here, other members of the union could not have brought suit to redress the injuries of an in- dividual union member. Further, an award of attorneys’ fees here would not spread the costs of litigation propor- tionate to the common benefit. Guidry would have to pay no more for the cost of litigation than any fellow union member, but he would receive substantially greater benefits in the form of cash awards. We therefore hold that on remand, the di ictfourt should not include an award of attorneys’ fees in its damages award. 4) Lost Wages Guidry argues in his cross-appeal that the amount of losts wages awarded was inadequate to compensate him. Once again, we are not in a position to review the district court’s damage determination because we are remanding that portion of the holding. We note, however, that the district court’s method of determining the lost wages due—comparing Guidry’s actual wages to the average amount earned by union members during the limitations period—is a sound and fair method of making that determination. ¥, For all the foregoing reasons, we AFFIRM the judg- ment as to the defendants’ liability, and we VACATE the award of damages and REMAND for redetermination of the proper amount. Costs shall be borne by the defendants. ET eT Re ee ee eee ay : A-42 APPENDIX E Howard TALIAFERRO v. Don SCHIRO, et al. John CREEL, et al. v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406, et al. Robert GUIDRY v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406, et al. Jess W. ROWSEY Vv. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406, et al. Vincent REED, et al. Vv. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406, et al. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 406, et al. Civ.A. Nos. 83-0388-LC, 83-1042-LC, 83-1141-LC, 84-0650-LC, 84-0777-LC and 84-1005-LC. United States District Court, W.D. Louisiana, Lake Charles Division. Sept. 9, 1987. Union members brought action against union and its officers for denial of rights guaranteed by Labor- Managements Reporting and Disclosure Act and for breach of union’s duty of fair representation. The District Court, Vernon, J., held that: (1) union officers’ manipula- tion of hiring hall procedures constituted violations of Labor-Management Reporting and Disclosure Act, as well as breach of union’s duty of fair representation; (2) six- month statute of limitations was applicable to both causes of action; and (3) unlawfully discriminated against union members were entitled to lost wages, damages for mental suffering, punitive damages, and attorney fees. Judgment for plaintiffs. ee ee ee ee ea eS eh a, ——. ee Pe ee A-44 Maurice Tynes, Levingston, Tynes & Liles, Lake Charles, La., for all plaintiffs, except Creel, Hatch and Johnson. H. Alva Brumfield, III and William P. Brumfield, Brumfield & Brumfield, Baton Rouge, La. for plaintiffs Creel, Hatch and Johnson. Floyd J. Falcon, Jr. and Daniel L. Avant, Avant & Falcon, Baton Rouge, La., for defendants Don Schiro and Peter Babin, III. Jerry L. Gardner, Jr., Gardner, Robein & Healey, Metairie, La. for Int’l. Union of Operating Engineers, Local 406. Columbus J. Laird, Oakdale, La., for Columbus J. Laird. Willard S. Carlock, Sr., Seagoville, Tex., for Willard S. Carlock, Sr. OPINION VERON, District Judge. The plaintiffs in these related civil actions are ali members or former members of the International Union of Operating Engineers, Local 406 (“the Union‘), seeking recovery from the Union and its officers for denial of rights guaranteed by 29 U.S.C.A. § 411(a)(1985) and for breach of the Union’s duty of fair representation. In Civil Action Nos. 83-0388 and 83-1141 the plaintiffs also included a claim for unlawful discipline for exercising those rights in violation of 29 U.S.C.A. § 529 (1985). Trial was held in the related cases simultaneously. Having considered the A-45 evidence presented at trial and the applicable law, as well as the oral and written arguments of counsel, the court finds for the plaintiffs and against the defendants for the reasons assigned below. FINDINGS OF FACT A. The Defendants The Union, a constituent division of the Interna- tional Union of Operating Engineers, is an unincorporated statewide labor organization which exists to establish and maintain collective bargaining agreements with various contractors in an effort to secure favorable wages, hours, and working conditions for workers within its jurisdiction. The Union had almost 6000 members at its peak, but cur- rently has only about 3200 members. It has six districts statewide and maintains offices in each district with cen- tral administrative offices in New Orleans. The Lake Charles District includes the Parishes of Calcasieu, Cameron, Jefferson Davis, Beauregard, Allen and part of Vernon. Peter Babin, III currently serves as the Business Manager and Financial Secretary of the Union, having been first elected to those offices in mid-1976. As Financial Secretary Babin has the responsibility of collecting union dues and paying union bills. As Business Manager he negotiates collective bargaining agreements with contrac- tors within the state, serves on the committee negotiating the National Pipeline Agreement, serves as a trustee of the Union’s Health and Welfare Fund, and acts as a delegate to various conventions, including the AFL-CIO conven- tion. Babin also appoints assistant business managers (also known as “business agents’’ or ‘““BA’s’’) who operate the Union on a day-to-day basis in each of the districts. A-46 Business agents appointed by Babin are authorized to represent the Union at pre-job conferences with contrac- tors and in disputes between contractors and the Union or its members. Business agents have authority to appoint union stewards and master mechanics who act as union representatives on the job. Finally, business agents ad- minister the exclusive job referral system through the hir- ing hall. After appointing business agents, Babin testified that he instructed them to distribute job referrals on a non- discriminatory basis and to avoid ownership of construc- tion equipment. After several incidents of labor violence, Babin circulated to all business agents for their signature a memorandum informing them the Union would not be liable for unauthorized activity by business agents or union members. Babin did very little to supervise his business agents, allowing them to run their respective district of- fices as they saw fit. Babin met with each business agent twice a year just before Executive Board meetings to discuss local problems. He had no formal procedure for evaluating a business agent's performance, relying instead upon the voting results of his bids for re-election. If the members of a particular district voted to re-elect Babin, he assumed his business agent for that district performed his duties satisfactorily. The court finds Babin’s supervision totally inadequate. Babin's predecessor, Jack Fisk, appointed defendant Willard Carlock, Sr. Business Agent for the Lake Charles District. When Babin became Business Manager, he retain- ed Carlock, Sr. In the midst of criminal investigations into Carlock, Sr.’s administration of the Union’s Lake Charles District, Babin fired Carlock, Sr. on March 10, 1984. A-47 Babin appointed defendant Columbus J. (‘‘C.J.”’) Laird Business Agent for the Lake Charles District in 1978. Although technically he had as much authority as Carlock, Sr., Laird considered Carlock, Sr. to be his boss and followed all of Carlock, Sr.’s directions. Laird remained in office until January 15, 1985, when he resigned after the government brought an indictment against him, Carlock, Sr. and others. In March, 1980 Babiz named Don Schiro statewide Pipe Line Business Agent. Schiro represented the Union in matters involving pipe line construction projects controll- ed by the National Pipe Line Agreement. As part of his duties, Schiro attended pre-job conferences with contrac- tors on pipe line projects. Although he had ultimate respon- sibility for appointing stewards and referring operating engineers to pipe line jobs, Schiro generally left these details to district business agents like Carlock, Sr. and Laird. In 1980 the Union membership elected Schiro as their President. As President Schiro receives no additional compensation from the Union (other than his salary as a business agent). The President’s only duty is to preside over membership meetings held periodically in the various districts statewide. B. Labor Climate in Southwest Louisiana It is impossible to fully understand this case without some background knowledge of the environment within which Carlock, Sr. operated the Lake Charles District of the Union. Accordingly, upon the plaintiff's request pur- suant to Fed.R.Evid. 201, the court takes judicial notice of the following facts generally known within this court's ter- ritorial jurisdiction. A-48 Orgainized labor traditionally has had considerable political and economic power in Southwest Louisiana. Dur- ing the OPEC nations’ oil embargo of the 1970's, Loui- siana’s petroleum industry began to experience rapid growth which spilled over into other industries and created a high demand for labor. Local labor leaders used their con- trol of the labor market to gain power over contractors and union employees. As labor shortages and the period’s infla- tionary trends caused ever-increasing wages, union members perceived their local business agents as even more powerful. Political candidates recognized the con- siderable influence of business agents and depended upon their support for success. Business agents continued to exercise their power virtually unheeded, creating an environment of labor unrest characterized by violence and corruption. Confron- tations between the unions and contractors employing non- union labor climaxed with the ‘‘Ellender Bridge’ incident of May 20, 1975 and the “Jupiter Chemical” incident of January 15, 1976. These incidents ‘contributed significantly to an atmosphere of violence and fear for union contractors and employees.’’ United States v. Carlock, 806 F.2d 535, 539 (5th cir.1986) cert. denied ___ U.S. ___, 107 S.Ct. 1611, 94 L.Ed.2d 796 (1987) and ___ U.S. ___, 107 8.Ct. 1613, 94 L.Ed.2d 798 (1987). Carlock, Sr. and others were indicted, tried, and acquitted in state court for their alleged roles in the Ellender Bridge incident. Allegations of corruption within the Union con- tinued. Eventually a United States Senate Subcommittee and the Federal Burreau of Investigation (“‘FB1’’) launched investigations which led to the grand jury indictment, triai, and convictions of Carlock, Sr., Laird, and others of violating and conspiring to violate the Racketeer Influenc- ed and Corrupt Organization Act, 28 US.C.A. § 1962(d\ 1984). | A-49 Carlock, Sr. was also convicted of extortion in violation of the Hobbs Act, 18 U.S.C.A. § 1961 (1984), and of demand- ing and receiving illegal payments from employers in viola- tion of the Taft-Hartley Act, 29 U.S.C.A. § 186 (1978). Ad- ditionally, Laird was convicted of one count of obstruction of justice. 7 During Carlock, Sr.’s term as business agent Babin occasionally received complaints from the union members concerning improprieties committed by Carlock, Sr. Babin testified that hie investigations into such matters con- sisted of gathering all relevant facts from the person lodg- ing the complaint, confronting Carlock, Sr. with the allega- tions, and receiving Carlock, Sr.'s explanation. Satisfied with the explanation, Babin would relay it to the complain- ant. Babin’s ‘“‘investigation’’ of a complaint meant only communicating with the subject and cause of the com- plaint. The court finds this totally inadequate. C. Hiring Hall Procedure The Union, as the exclusive collective bargaining agent for operating engineers seeking employment within its jurisdiction, entered into several collective bargaining agreements which goven the procedures to be used in employing operating engineers. An agreement between the Union and the Lake Charles District, Associated General Contractors of Louisiana, Inc. governs the building and construction trades industry (hereinafter referred to as the ‘Building Trades Agreement’’). A second major agree- ment, the National Pipe Line Agreement, covers all transportation mainline pipe line and underground cable work. Both agreements allow signatory contractors to hire directly qualified employees in certain circumstances. A-50 The National Pipe Line Agreement permits contractors to fill up to approximately half the positions on a project with “regular employees.”’ “Regular employees’ are those regularly and customarily employed by the individual con- tractor whenever he has work or who have been employed by him sometime during the previous six months, and who, because of their special knowledge and experience in pipeline construction work, are considered ‘‘key men.’’ These key men work on the ‘company half.”’ The Building Trades Agreement allows signatory contractors to recall for employment any operating engineer that contractor has employed for at least half the previous twelve months. Contractors signatory to this agreement may also hire directly key personnel, generally limited to foremen. Laird, Schiro, and Sonny Maon, the current business agent in the Lake Charles District, never verified that in- dividuals hired directly by contractors met the contractual requirements for direct employment, even though an operating engineer referred through the Union’s hiring hall would replace any prospective employee disqualified from direct employment. The Union furnishes all other operating engineers to pipe line and building trades contractors through an ex- clusive hiring hall. Both agreements establish a method for registering and ranking applicants for referral through the hiring hall. Applicants must be placed into four groups, each containing operating engineers of roughly equivalent work experience; however, the Union has always disregard- ed this rule, organizing the applicants into one group of journeyman operating engineers (while maintaining a separate group for oilers). Each district office maintains out-of-work lists containing names of all applicants in the A-d1 order each notifies the Union he is available for work. The Union maintains separate lists for building trades projects and pipe line projects. Since March, 1984, applicants could only have their names on one of the lists at a time. When a contractor notifies the Union that it requires an operating engineer for a specific job, the business agent must contact qualified applicants for the job until the job is filled, starting with the first name on the proper out-of- work list. When contacted an applicant may either accept or decline a referral. An applicant who accepts a referral receives a referral slip signed by the business agent and identifying the contractor, job site, job type, wage rate, and date and time the applicant is to report. Once the appli- cant works forty hours, the business agent removes his name from the out-of-work list.! The applicant bears the responsibility of notifying the Union that he has worked over forty hours. An applicant may decline a referral without penalty if he feels he is not qualified for the job offered. Under the provisions of the collective bargaining agreements, the business agent should move to the bottom of the out-of- work list the name of any applicant who arbitrarily refuses to accept a referral; however, Carlock, Sr. and Laird routinely aliowed applicants to turn down shorter job refer- rals to hold out for longer, more lucrative ones. The Union established by custom several exceptions to the general rule that job referrals are offered to ap- plicants in the order their names appear on the out-of-work list. These exceptions are in addition to the contracjors’ right to hire employees directly under the circumstances discussed above. : For pipe line projects, an operating engineer’s name was removed from the pipe line out-of-work list after he had worked fifty hours. A-52 One exception involved referral of stewards to pipeline projects and master mechanics to building trades ' projects. Stewards and master mechanics act as union representatives at the job site. Frequently they are the peo- ple actually contacting the union hall for the contractor to request additional operating engineers, providing descrip- tions of the type of work to be performed and the expected duration of the job. On large projects, they must be ver- satile operators, capable of running several types of equip- ment, and able to fill in on a temporary basis for any operator who becomes incapacitated. They must be able to read and write so they can keep records and must have the even temperament required to work with management and resolve disputes which may arise.. Under the collective bargaining agreements, the Union has the right to designate a steward or master mechanic from the union members already referred to the project; however, Carlock, Sr., Laird and Schiro appointed stewards and master mechanics from individuals named on the out-of-work list, regardless of their position on the list. Schiro would sometimes appoint as a pipe line steward an individual who had a job on another project when the other project was nearing completion. To appoint as a steward an individual who is not even available for work when others are registered on the out-of-work lists clearly violates the Union’s hiring hall procedure. A second exception involved the referral of short- term jobs, i.e., those expected to last one to three days, bas- ed upon information provided by the contractor (or, fre- quently, the steward or master mechanic) requesting an operating engineer. By custom Carlock, Sr. and Laird hand- ed these referrals to applicants present at the hall without regard to the applicants’ positions on the out-of-work list. Carlock, Sr. and Laird never consulted the out-of-work lists A-53 when making these referrals, unless two or more applicants desired the same referral. Another exception allowed Carlock, Sr. and Laird to refer without reference to the out-of-work list a temporary replacement for any operating engineer who became in- capacitated or otherwise unable to perform his job. A final “exception” resulted from a collective bargaining agreement between the Union and Dolphin Con- struction Co. which required the Union to refer residents of Allen Parish to Dolphin’s construction project there. Con- sequently, Allen Parish residents received referrals to that contractor ahead of otherwise equally qualified applicants living outside that parish whose names were higher on the out-of-work list. D. Carlock, Sr’s Abuse of the Hiring Hall Procedure During the trial, Laird admitted several times that tnese exceptions gave Carlock, Sr. the power to enrich his allies and to starve his enemies within the Union by con- trolling their ability to obtain referrals for employment. After carefully considering the testimony of the witnesses, together with the pension fund records, out-of-work lists, and referral slips admitted into evidence, this Court is con- vinced Carlock, Sr. did in fact exploit and, at times, disregard entirely the hiring hall procedures to enrich his confederates to the detriment of the plaintiffs and others. The court finds that Carlock, Sr. used several means to provide his confederates with regular employment in return for their support during a period when jobs were in high demand and short supply. The following is a brief discussion of some of these methods Carlock, Sr. used to by-pass the out-of-work list, i.e., to circumvent the general A-54 rule that applicants for employment receive referrals in the order their names appear on the out-of-work list. First, Carlock, Sr. repeatedly appointed his con- federates stewards and master mechanics although many of these appointed lacked the skills necesary to properly perform the tasks of the position and although other equal- ly or more qualified applicants had higher positions on the out-of-work list. Laird admitted that Michael Greer, Monroe Brabham, Pete Dartez, and Linda Young could not qualify as master mechanics but received referrals as such anyway. Carlock, Sr. forced contractors to accept un- qualified individuals as master mechanics by threatening work slowdowns, work stoppages, and sabotage. The court notes that one contractor, Mar-Len Construction Co. tried to send back a master mechanic (Scimemi) for nine or ten months and finally succeeded only after halting construc- tion on its project. Second, Carlock, Sr. bypassed the out-of-work list to favor his confederates by exploiting the exception for refer- ral of jobs lasting one to three days. The court recognizes that as a business agent Carlock, Sr. was familiar with the labor requirements of area construction projects. Carlock, Sr. personally visited the sites, talked with contractors’ representatives, and received frequent reports from his stewards and master mechanics. The court concludes that Carlock, Sr. knew certain jobs would last substantially more than three days; nevertheless, he would refer his con- federates to the jobs out of turn by designating the refer- rals as being for short-term jobs.” 2 The court notes with interest that plaintiff Jerry Hatch received some eighty-seven referrals between January 29, 1980 and April 26, 1983. Defendant’s Exhibit 59. The vast majority of these were short-term jobs. An examination of these referrals and Hatch’s pension fund records reveals that only one of the eighty-seven referrals contained an inaccurate estimate of job duration. () \y A-55 Next, according to Laird, one of easiest ways to bypass the out-of-work list was to obtain employment on eee Laird pointed out that this required the business agent’s cooperation (because only persons qualified as ‘“‘regular employees”’ of the contractor were eligible for employment on the com- pany half). The court finds Carlock, Sr., Laird, Schiro and even Mason gave the requisite cooperation by not confirm- ing the eligibility of operators employed on the company half. ‘ Finally, Carlock Sr. referred his confederates to con- tractors out of turn by designating the referral as a recall regardless of the individual’s eligibility for recall. Carlock, Sr. kept control over union members through intimidation and threats of retaliation in the form of economic discrimination and physical injury. The court notes testimony of an incident occurring during a union meeting. A union member demanded Carlock, Sr. take ac- tion as business agent to ensure that the wage rate the member was earning be increased to union scale. A fight developed and ended when Carlock, Sr. rammed the member’s head into a wall. Carlock, Sr. further discouraged open opposition by requiring members to vote at meetings by standing. The plaintiffs testified they feared voting against Carlock, Sr. publicly because they feared Carlock, Sr.’s retaliation. Finally, Carlock, Sr. himself kept possession or c\ - trol over the out-of-work lists,? which made it difficult for 3 Often Carlock, Sr. ’s secretaries had possession of the out-of-work lists, pina — tyes. 20 heen gy ’s presence before allowing a member to personally examine the lists A-56 union members to discover improper referrals. Checking one’s position on the list to challenge a referral meant con- fronting Carlock, Sr. directly. E. Plaintiffs’ Testimony 1. Howard Taliaferro Howard Taliaferro joined the Union July 28, 1967 and remained a member until March 31, 1983, when he was suspended for non-payment of dues. On July 21, 1983 he was expelled. As an operating engineer, Taliaferro operated bulldozers, sidebooms, and other equipment but could not operate ‘“‘claws’’ or cranes. Taliaferro also possessed the skills required of a steward—he could read and write, could operate several types of equipment, and knew the terms of the collective bargaining agreement sufficiently to enforce them. Taliaferro did not support Carlock, Sr. throughout the latter’s career as business agent. During the 197/’s Taliaferro filed several complaints over the manner in which Carlock, Sr. administered the hiring hall procedures, objecting to Carlock, Sr.’s deviations from the terms of the collective bargaining agreement. In 1977 Taliaferro refus- ed to contribute to Babin’s re-election compaign when Carlock, Sr. solicited support. Taliaferro also declined to at- tend a barbecue fund raiser. Taliaferro cooperated with the FBI during its criminal investigation of Carlock, Sr. in 1983. As a result, Taliaferro received threats warning him not to talk to the FBI or anyone else. From late 1981 Taliaferro found little employment as an operating engineer. He signed the out-of-work list A-57 December 4, 1981 and remained registered as available for work until March 15, 1982, when Laird removed Taliaferro’s name after Taliaferro was working in Texas. In fact Taliaferro had found employment in the Dallas, Texas area, but his name should have remained on the list until April, 1982 when he first earned in excess of 50 hours work- ing for Avery-Mayes Construction Co. Taliaferro continued to work steadily in Texas until Oc- tober of 1982. When he contacted the Union on October 12, 1982 to register as available for work, Laird incorrectly placed Taliaferro’s name on only the pipe line out-of-work list rather than on both lists. From October 12, 1982 until June, 1984 Taliaferro’s name remained on the out-of-work list. During this period he applied for jobs with many union and non-union contrac- tors and other businesses. In November of 1982 he received referrals from Local 714 in Texas for jobs lasting a total of 26.5 hours. In early 1983 he found short jobs with non- union employers, Golightly and Woodson Construction Company. The job for Woodscn lasted around ten days, for which Taliaferro earned $1241. Taliaferro also declined referrals for a couple of jobs because he could not operate the equipment involved or because FBI Agent Steven Ek had advised him to do so. While unemployed Taliaferro experienced serious financial hardships. In January, 1983 he made his last dues payment to the Union. Later that month his car was repossessed, limiting his capability to search for work. Finally, In June, 1984 Laird referred Taliaferro to Sanders Hydrotesting Co., where he worked for 304 hours. He has not worked at the trade since, though he remains on the out-of-work list and would accept a referral if offered are ee ee A-58 one for a job for which he was qualified. Taliaferro has been receiving early retirement benefits since early 1985. 2. John C. Creel John C. Creel joined the Union as a transfer from Local 675 in Florida in 1974. Creel operates various types of equipment, but primarily cranes. Finding little work, Creel withdrew from the Union in March, 1976 to practice as an electrician. At a chance meeting with Carlock, Sr. on a construction site in 1979, Creel learned that crane operators were in high demand, so he again sought admis- sion to the Union. Creel worked steadily from December 27, 1979 to March 9, 1982, working nearly 2000 hours in both 1980 and 1981. After March 9, 1982 Creel’s fortunes changed drastically. Over the next twelve months he received eleven referrals to short jobs lasting an average of 21 hours and totaling 235 hours. Throughout this period Creel remained available for work, visiting the union hall four times a week to seek referrals. Beginning in March of 1982 Creel complained to Carlock, Sr. and others about discrimination in the referral procedure and on one occasion presented Carlock, Sr. with a written complaint for filing with the grievance commit- tee. Carlock, Sr. responded by tearing up the complaint and stating that he was the grievance committee. Creel also received several threats of personal injury to his family, and damage to his shrimp boat. In 1983 Creel got one job with Roy B. Paui Construc- tion Co. and worked for 445.5 hours, earning $6865. On September 20 of that year he and another plaintiff, Truman Johnson, were injured in an automobile accident and re A-59 mained unable to work until May, 1984. Since that time Creel has received one referral and worked 56 hours at the trade in May of 1986. While searching for employment as an operating engineer Creel supplemented his net income from shrimp- ing during 1984 at $7000. At present Creel practices as a real estate agent in Florida. 3. Jerry Hatch Jerry Hatch, a man of fifty years and little or no for- mal education first became a member of the Union in 1964. Operating heavy equipment has been the only trade he has ever known. He testified that ever since Babin and Carlock, Sr. first took office, he has opposed them because of prob- lems they caused within the Union. Hatch refused to pay $25.00 per week as demanded by Carlock, Sr.’s con- federates for a legal defense fund to pay legal fees generated tin Carlock, Sr.’s defense against state court criminal charges. Hatch also testified that he begged Babin to take some action to bring a solution to the internal pro- blems in the Lake Charles District. In return for his opposi- tion Hatch received threats by phone that his family would be killed. On one occasion Hatch received a call from his daughter, who tearfully reported a threat she had just received that she and her daughter would be killed. The stress on Hatch and his family contributed to a separation and divorce from his wife this past year. From October, 1982 to October 4, 1984 Hatch has had only one long-term job. Hatch worked for R.B. Potashnik for 438 hours from January to March, 1983. Besides the Potashnik job, Hatch did work 122.5 hours on several short jobs, the longest lasting 22.5 hours. At all other times during this period Hatch remained availabie A-60 for work. Hatch went to the hall five days per week seeking referrals. He declined only those referrals involving equip- ment he could not operate or involving jobs in the Oakdale, Louisiana area, Carlock, Sr.’s hometown. On October 4, 1984 Hatch suffered a job-related in- jury and has been disabled ever since. He has been receiv- ing disability and social security benefits, but hopes some day to have recovered sufficiently to resume working. 4. Truman Johnson Truman Johnson, born February 6, 1950, had been a union member since August 12, 1973 and could operate all types of heavy equipment except large cranes. After Oc- tober, 1982 Johnson’s only employment was for R.B. Potashnik Construction Company, for whom he worked 709 hours between December 10, 1982 and March 23, 1983. Johnson became disabled September 20, 1983 in an automobile accident. Except during the time he was employed by Postashnik, he spent nearly every day at the union hall seeking referrals. After the Potashnik job Johnson begged Babin to take some action to solve the pro- blems in the Lake Charles District. Babin refused, explain- ing that Carlock was in charge. Truman Johnson died on October 10, 1986. Charles Johnson, as administrator of the property of Truman Johnson’s daughter, has been substituted as the proper party plaintiff. 5 Robert Guidry Robert Guidry entered the Union in 1949. He operates almost all types of heavy equipment including A-61 draglines, cherrypickers, large cranes, bulldozers and sidebooms, but does not operate any hydraulic equipment. He has worked as a steward on several jobs, all before 1969. Guidry has a long history of opposing incumbent Union officers. In 1979 Guidry ex pected to receive his gold union membership card in recognition of thirty years membership in the Union. As a gold card holder Guidry would have been exempt from paying dues. Instead Guidry learned he had been suspended for non-payment of dues for eight months beginning July 31, 1955, the same time he had opposed the then-current business agent’s re-election. Injured on the job, Guidry could not work at the time. Dur- ing the 1950’s business agents customarily collected con- tributions from the union membership to pay the dues of ill or injured members, but no contributions were collected for Guidry. From September, 1979 to February, 1981 Guidry worked as the steward for Parsons—Gilbane Construction Company. After learning that a union member was paying Carlock, Sr. to keep his job, Guidry accompanied the member to report this to the FBI. Soon afterwards Carlock, ~— Sr. tried unsuccessfully to have Guidry fired from the job. Guidry received threats, both by phone at night and in per- son at the job site. Three union members, confederates of Carlock, Sr., threatened Guidry’s life during a conversation with him on the job site and subsequently were arrested by the FBI. Guidry appealed to Babin in New Orleans and filed a complaint against Carlock, Sr. Guidry presented his case to the Executive Board at a hearing corlducted in a Baton Rouge motel room near the Baton Rouge district office of the Union. The commitiee, headed by Babin, dismissed Guidry’s charges. - A-62 After the Parsons job ended in February, 1981, Guidry found employment with various contractors until October, 1982. From October, 1982 to August, 1983 Guidry received a referral to Ford, Bacon & Davis Con- struction Company and made 253.50 hours. Tetra Enterprises, Inc., a non-union employer gave Guidry his next job in August, 1983. Guidry had been receiving extended benefits under the federal unemploy- ment compensation plan, having exhausted his state benefits. Two days later the union began picketing this job, creating a dilemma for Guidry. If he honored the picket line, he would again be unemployed and would lose his eligibility for extended benefits because he had refused available employment. On the. other hand, by crossing the picket line Guidry risked losing his union membership. Economic pressure resulting from the discrimination within the hiring hall forced Guidry to cross the picket line and continue working. | In October, 1983 the Union filed charges against Guidry for crossing the picket line. At a union meeting in Lafayette the membership present voted to revoke Guidry’s membership in the Union. Before the meeting Laird telephoned Carlock, Sr.’s supporters in the Union to assure their attendance and vote against Guidry. Guidry had only one other job during 1983. On this job Guidry earned $1594.23 working for Harmony Corpora- tion. In 1984 Guidry entered the trucking business transporting drilling tools and supplies to oil well locations. From this venture he earned $11,615.61 in 1984, $8776.06 in 1985 and $9342.11 in 1986. A-63 6. Jess Rowsey Jess Rowsey, born March 17, 1923, has operated heavy equipment since World War II. He joined the Union November 2, 1967 and has remained a member ever since. He can operate most types of equipment used on jobs in the Lake Charles area, and is at least as qualified to be a master mechanic as Linda Young and Willard Carlock, Jr., two of Carlock, Sr.’s confederates frequently appointed as master mechanics. While Carlock, Sr. was business agent in Lake Charles, Rowsey never openly opposed him. In May 1979, Nathan Courville stewarded a job on which Rowsey work- ed. When Courville announced he was collecting $100 from each union member on the job for Carlock, Sr.’s legal defense fund, Rowsey paid almost immediately out of fear that otherwise he would be laid off. Later, Carlock, Sr. per- sonally visited the job and warned Rowsey to keep quiet about the payment. Again to keep his job, Rowsey did as “requested.” At a union meeting in 1980 or 1981 Rowsey witness- ed the explosiveness of Carlock, Sr.’s temper. Babin, Schiro, Carlock, Sr. and Larid all attended a meeting, sit- ting on a dais at the front of the crowd. Just before the meeting ended, J.D. Antley, a retired member of the Union, approached Carlock, Sr. and requested that his son, then an oiler, be issued an operator's book. When Carlock, Sr. refus- ed, Antley responded that Carlock, Sr. had done the same thing before for others. Carlock, Sr. exploded, cursing Antley and physicellv accosting him. Union members from the crowd had to separate the two physically. Meanwhile Babin and Laird had taken no action and Schiro had only banged his gavel demanding order. Rowsey testified that the event left him shaken and fearful of Carlock, Sr. A-64 In June, 1981, Rowsey testified in Monroe on behalf of Lamar Honey against the business agent from the Monroe district, Charles ‘“‘Sub’’ Hayes. See International Union of Operating Engineers, Local 406 v. N.L.R.B., 701 F.2d 504 (5th Cir. 1983). Since then Rowsey has experienc- ed a great deal of trouble obtaining job referrals. In August of 1981 Rowsey received referrals to Industrial Construc- tion Co., working only two hours, and to Ford, Bacon & Davis Construction Co., working 347.5 hours there. During 1982 Rowsey did not receive a referral until September and worked a total of 108 hours. The court notes that Rowsey was not available for work during his wife’s hospitalization from March to May of 1982. In 1983 his hours increased somewhat to 229 hours. Rowsey did not work at all in 1984, 1985, or 1986 forcing him to apply for his retirement benefits in December, 1984. He received his first retirement check May, 1985. 7. Vincent Reed Vincent Reed first began working out of the Union in 1959 as an oiler. In 1960 he was injured and subsequently suspended from the Union. Near the end of 1978 Reed returned to the Union to seek employment through the hall. Carlock, Sr. exchanged a referral for $350 dollars in cash, delivered personally to Carlock, Sr. alone. Reed work- ed for Rimmer and Garrett Construction Company from March 1979 to the end of the year. The defendants offered no reasonable explanation for this payment; therefore, the court concludes the payment was a bribe. Certainly, Reed understood it to be such. Eventually Reed also sought membership in the Union. Reed’s testimony concerning payments Carlock, Sr. ais A-65 demanded in return for membership and employment is somewhat confusing. It is apparent that Reed believed Carlock, Sr. demanded a series of bribes in return for membership; however, the court is satisfied that Reed’s conclusions resulted from misunderstandings by both Carlock, Sr. and Reed. The court is satisfied that the facts are as follows: In response to Reed’s request for membership, Carlock, Sr. told Reed it would cost $1800. Apparently Carlock, Sr. believed Reed had been a member of the Union in 1960 and now wanted reinstatement. The $1800 represents back dues owed from 1960 to 1980. After Reed complained to Babin about Carlock, Sr.’s demand, the fact that Reed had never been a journeyman operator surfaced. Carlock, Sr. then initiated Reed as a new member, issuing him a permit until Reed paid five dollars per week for seventy-eight weeks, plus an initation fee and a building fund charge. Upon completion of these paymenis in April of 1980, Reed received a membership book. After September, 1980 Reed received only three referrals. Through the first two referrals, both in 1982, Reed obtained employment lasting 244.4 hours. Reed’s last referral from the Union came in January of 1983. From January to March, 1983 Reed worked 450 hours for R.B. Potashnik Construction Company. After March 1983, Reed only received offers to run equipment he couldn’t operate, to work short jobs too far out-of-town to be financially at- tractive, or to work jobs too short to merit leaving the top of the out-of-work list. 8. Gene Romero Gene Romero entered the Union on October 26, 1972. He primarily operates rubber-tire equipment, bulldozers, A-66 and other dirt-moving equipment. Like the other plaintiffs, Romero opposed Cariock, Sr. On one occasion in 1983, a confederate of Carlock, Sr. requested that Romero con- tibute to Carlock, Sr.’s legal defense fund. Romero refused. From 1979 to 1981 he worked over 2000 hours each year, but after that his hours fell sharply to 617.25 hours in 1982, 170 hours in 1983, 260 hours in 1984, and only 16 hours in 1985. When not working, Romero went to the union hall almost every day during the mornings to seek referrals. 9. Alton Janise Alton Janise, born January 7, 1928, joined the Union in 1957. He has had several strokes, the first occurring in 1984. Since then he has been unable to work. His memory is very poor and he can no longer read. Janise’s pension fund records indicate that he work- ed the following hours: Hours 1980 1795 1981 2146.5 1982 733.5 1983 240 1984 0 1985 0 10. Craig Edwards Craig Edwards entered the Union March 22, 1973. He is qualified to operate almost all kinds of heavy equip- ment except draglines. Since January 31, 1985 he has been suspended from the Union for non-payment of dues, but he A-67 testified that he plans to pay the amount in arrears once he is financially able. In 1981 and 1982 he worked around 1100 hours. Then in 1983 his hours fell to 590.80 and in 1984 to 73.50. Craig Edwards testified that on one occasion when he had become desperate for work, he sold Carlock, Sr. an air conditioning unit worth several thousand dollars. In return Craig Edwards received $200. and a job several days later. Craig Edward’s testimony concerning this incident was supported by Roderick Edwards, Craig’s brother who testified that he helped Craig deliver the air conditioner to Carlock, Sr. In 1982 Craig Edwards received a referral to Nichols Construction Co. The job lasted 668.8 hours and carried over into April of 1983. Craig Edwards has not received any referrals through the hall since then, but did find a job with Industrial Construction Co. on his own operating a cherrypicker for 73.5 hours. He has maintained his name on the out-of-work list and has remained available for work. 11. Roderick Edwards Roddy Edwards, Craig’s brother, joined the Union in 1964. He operates several types of heavy equipment, in- cluding hydraulic equipment. Hostility between Roddy Ed- wards and Carlock, Sr. began around late 1982 or early 1983 when Roddy Edwards stopped receiving referrals. While he remained out of work, Carlock, Sr. provided his wife Beverly with referrals. As Carlock, Sr.’s “‘girlfriend,”’ she sometimes had two jobs from the Union at the same time. From May to October, 1982 Roddy Edwards worked for J.A. Jones Construction Co. He did not receive another A-68 referral from the Union from then until the time he began serving a jail sentence iz: mid-1985. 12. Cary Vaughn Cary Vaughn joined the Union as an oiler in 1968. As noted above, the Union maintaines a separate out-of-work list for oilers. In 1979 and 1980 Vaughn worked just over 1700 hours. In 1981 his hours fell to about 1000. Then in 1982 he worked only 395 hours, followed by 39 hours in 1983 and 181 in 1984. Vaughn claims he was passed over on the out-of- work list in August of 1982. Allan Wayne Willard, who had registered as available for work on December 8, 1981, received a referral in August ahead of Vaughn who had registered November 23, 1981. But Vaughn testified that he had surgery to remove kidney stones about that time, and a notation indicating hospitalization follows his name on the August, 1982 out-of-work list. The court concludes Vaughn was not entitled to this referral because he was not available for work in August, 1982. Around November 1, 1983 Vaughn was passed over on the out-of-work list for a referral to R.B. Potashnik Con- struction Co. Vaughn had registered as available for work October 31, 1982, but the referral went to Daniel Sonnier, who had signed the list April 8, 1983, The court is satisfied that Vaughn was available for work and would have ac- cepted the referral had it been offered to him. CONCLUSIONS OF LAW The plaintiffs first claim the Union breached its fiduciary duty to represent, them fairly because the Union operated its hiring hall in a discriminatory fashion. The A-69 Labor Management Relations Act, 29 U.S.C.A. § 159(a) (1973), recognizes unions as exclusive bargaining agents for all persons within the bargaining unit and correlatively imposes upon the unions the duty to represent fairly the in- terests of each employee in the unit in dealings with the employer, Smith v. Local No. 25, Sheet Metal Workers In- ternational Association, 500 F.2d 741 (5th Cir.1974). [1] In order to fulfill its duty of fair representation, a union must enforce the provisions of a collective bargain- ing agreement in a non-discriminatory manner and repre- sent all segments of the bargaining unit fairly. “‘A breach of the statutory duty of fair representation occurs only when a union’s conduct towards a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.”’ Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). In the context of distributing job referrals, a breach occurs if the Union applies ‘‘arbitrary and invidious criteria in referring employees to jobs.’’ In- ternational Union of Operating Engineers, Local 406 v. N.L.R.B., 701 F.2d 504, 508 (5th Cir. 1983). [2] The evidence in this case demonstrates that the defendants Schiro, Laird, and Carlock, Sr. manipulated the referral system to deny the plaintiffs employment oppor- tunities while favoring supporters of the Union’s officers and business agents. Because these referrals (and denials) were based on arbitrary and invidious considerations of political support or opposition, each represents a breach of the Union’s duty of fair representation. The United States Supreme Court has held that a six-month statute of limitations period applies to all duty of fair representation actions. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 108 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Each improper referral constitutes a A-70 separate breach of the duty of fair representation and those breaches occurring more than six months prior to the in- stitution of the suit are time-barred. Sevako v. Anchor Motor Freight, Inc., 792 F.2d 570, 575 (6th Cir.1986). As this court has previously ruled, only those breaches of the duty of fair representation occurring within six months of the filing of suit are actionable. [3] The plaintiffs introduced testimony concerning a vast number of referrals which they claim demonstrate discriminatory distribution of referrals through the hiring hall. After studying the testimony of the witnesses and the exhibits admitted into evidence, the court is satisfied that all of the plaintiffs have proven repeated abuses of the hir- ing hall procedure by the Union’s business agents. The plaintiffs are entitled to recover loss of wages for all breaches occurring after the date six months prior to the date each plaintiff filed suit. The essential facts of each im- proper referral have been compiled and placed in the Appendix. [4] The plaintiffs also have made claims under the Labor-Management. Reporting and Disclosure Act (“LMRDA’”’), 29 U.S.C.A. §§ 401 to 531 (1985). The “Bill of Rights” section of this Act guarantees union members, among other protections, equal rights to vote and other- wise participate in union deliberations, 29 U.S.C.A. § 411(a)(1) (1985), as well as the rights of free speech and assembly, 29 U.S.C.A. §411(a\(2) (1985). Section 411(a)(5) protects union members from being disciplined without a full and fair hearing and Section 529 prohibits unions and their officers or agents from disciplining any union member for exercising his rights guaranteed by the LMRDA. These sections were designed “to protect the rights of union members to discuss freely and criticize the A-71 management of their unions and conduct of their officers. The purposes of these sections is to prevent union officials from using their disciplinary powers to silence criticism and punish those who dare to question and complain. Ar chibald v. Local 57, International Union of Operating Engineers, 276 F.Supp. 326, 329 (D.R.1.1967). Manipulation of hiring hall procedures to suppress participation in union activities and opposition to union management and policies constitutes violations of § 411(a)(1) and (2). Murphy v. International Union of Operating Engineers, Local 18, 774 F.2d 114, 123 (6th Cir.), cert.denied ____ U.S. ___, 106 S.Ct. 1201, 89 L.Ed.2d 315 (1986). The court finds that the Union, Carlock, Sr., Laird, and Schiro, manipulated the hiring hall procedure to sup- press opposition from union members, particularly the plaintiffs. The court finds further that Carlock, Sr. employed threats and intimidation to curtail the plaintiff's exercise of their rights to freedom of speech and assembly. Sections 411(a)(5) and 529 protect union members from unlawful discipline. A union subjects a member to “discipline” under §§ 411 and 529 “‘when (1) it is under- taken under color of the union’s right to control the member’s conduct in order to protect the interests of the union or its membership, and (2) it directly penalizes him in a way which separates him from comparable members in good standing.”’ Keene v. International Union of Operating Engineers, Local 624, 569 F.2d 1375, 1379 (5th Cir.1978). Discrimination in job referrals constitutes discipline when used as a tool by union leaders to control union af- fairs in violation of a worker’s membership rights. See Vandeventer v. Local Union No. 513, International Union of Operating Engineers, 579 F.2d 1373, 1378-79 (8th Cir.), A-72 cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978). This court has no trouble finding that the defen- dants violated sections 411(a)(5) and 529 by limiting the employment opportunities made available to the plaintiffs to penalize them for refusing to support the defendants and for openly opposing them. [5] Suits brought under the LMRDA are subject to a six-month limitations period. Local 1397, United Steelworkers of America, 748 F.2d 180 (3rd Cir.1984). As this court has already ruled, the plaintiffs may only recover for those violations of the LMRDA occurring after the date six months prior to when the plaintiffs filed suits. [6] Having found that all of the plaintiffs but Vaughn have proven breaches of the Union’s duty of fair represen- tation and violations of the LMRDA, the court must next address the remedies available to the plaintiffs. As recovery for breach of the duty of fair representation, the plaintiffs are entitled to recover their loss of wages. The LMRDA, 29 U.S.C.A. §412(1985) permits a court to award ‘such relief . . . as may be appropriate.’’ As discussed below the court holds that in these actions appropriate relief must include, in addition to loss of wages, mental suffering, punitive damages, and attorney’s fees. Additionally, the court holds that Guidry is entitled to reinstatement of full membership in the Union upon full payment of past dues. Each of the plaintiffs is entitled to recover his lost wages caused by the discriminatory operation of the hiring hall. The plaintiffs need not prove these amounts with mathematical certainty. Keene v. International Union of Operating Engineers, Local 624, 569 F.2d 1375, 1382 (5th Cir.1978). As reasonable compensation the court will award the difference between the amount each plaintiff would se CS a ee ee ae A-73 have earned had the hiring hall been operated in a non- discrinatory fashion less the amount each actually earned from referrals through the Union. The court calculates the former amount by multiplying the average number of hours worked by operating engineers actively seeking employment and their hourly rate of pay. The parties have stipulated that the hourly rate to be used is $13.00. The court accepts the testimony of the defendants’ expert concerning the average number of hours worked by operating engineers actively seeking employment during the years 1981-1983. In calculating the average hours worked during 1984, the court has assumed that the yearly averages continued to decrease in 1984 at the same rate as in 1982 and 1983. Accordingly, the average number of hours worked by operataing engineers actively seeking employment during 1981-1984 is as follows: Average Hours 1981 1500. 1982 879 1983 516 1984 302 Taliaferro has demonstrated that the hiring hall was operated in a manner which discriminated against him as early as January 5, 1982 (See Appendix) and continued un- til at least March 10, 1984 when Carlock [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3019%3A2. Public record. Not legal advice.