Petition for Writ of Certiorari — Ross v. Hotel Employees & Restaurant Employees International Union

O01 921 DEC 172001

No. OFFICE OF THE CLERK

In the

Supreme Court of the Anited States

GEORGE A. ROSS,

Petitioner,

HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES

INTERNATIONAL UNION; ROBERT BAKER, Co-Trustee;

CAROL CARLSON, Co-Trustee,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRDCIRCUIT

PETITION FOR WRIT OF CERTIORARI

Thomas M. Castello, Esquire Michael A. Karaffa, Esquire

Of Counsel Counsel of Record

2882 Glenmore St. Allegheny Building

Pittsburgh, PA 15216 Suite 1212

(412) 344-7833 429 Forbes Avenue

- Pittsburgh, PA. 15219

(412) 471-3257

Attorneys for Petitioner

i

QUESTION PRESENTED FOR REVIEW

I. IN DETERMINING A QUESTION OF FIRST

IMPRESSION, THE LOWER COURTS INCORRECTLY

INTERPRETED TITLE Ill — SECTION 304 OF THE

LABOR —MANAGEMENT REPORTING AND

DISCLOSURE ACT OF 1959, 29 U.S.C. §464, BY

DENYING PETITIONER A CAUSE OF ACTION WHEN

HE WAS HARMED BY THE IMPOSTION OF A

TRUSTEESHIP IMPOSED FOR AN _ IMPROPER

PURPOSE AND MAINTAINED IN BAD FAITH.

ii

TABLE OF CONTENTS

CIITA PIII a oc ccivecssniiesssinitideiethnissisibccesictsdsccsenicedwes i

Br Se eiiiciiacisiceinsniisiinlatalipebintainaceciesssctesauaiee il

PR Oe Fi siviiceinittistictnii ees ae ili

REE STAM RAL Ae vee Bees OP On paleo Aloe ONES l

pS ASE OR CHRO FCC DE ITER LEN TOME l

RELEVANT STATUTORY PROVISIONS INVOLVED......se-ssessseessees I

UTE OF TE CN iii 2

REASONS FOR GRANTING THE WRIT ........cccccccssceccsesccesscescceeees 7

SNe ciessascicseraiesacabacnaracaiiness ciate catia Soe a 20

APPENDIX

CIRCUIT COURT OPINION (09/17/2001) ....cccccccccccecesecceees la

DISTRICT COURT DECISION (10/04/1999) ooo. 43a

DISTRICT COURT DECISION (01/12/2000)..........cccccccceees S2a

iii

TABLE OF AUTHORITIES

CASES

FINNEGAN V. LEu, 456 U.S. 431, 72 L. Ep. 2b 239,

102 S. CT. 1867 (1982) 7, 10, 12

GESINK V. INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, 831 F.2D 214 (10™ Cir. 1987)

HIGGINS V. HARDEN, 644 F.2D 1348 (9™ Cir. 1981)

McDONALD V. OLIVER, 525 F.2D 1217 (5™ Cir. 1976)...... 14

PETRAMALE V. LOCAL No. 17 OF LABORER’S INTERNATIONAL

UNION OF NORTH AMERICA, 671 F.Supp. 261 (S.D.N.Y.

POPE V. OFFICE AND PROFESSIONAL EMPLOYEES

'NTERNATIONAL UNION, 74 F.3*° 1492 (6™ Cir. 1996)... 16

PR ‘ITT V. UNITED BROTHERHOOD OF CARPENTERS AND

. OINERS OF AMERICA, 659 F. Supp. 1511 (ND Ga. 1987)15

SH! ET METAL WORKERS INTERNATIONAL ASSOCIATION V.

| YNN, 488 U.S. 347, 102 L. Ep. 2p 700, 109 S. CT. 639

a se saepnomntienaiinen 7, 12

STE: LWORKERS V. SADLOWSKI, 457 U.S. 102, 102 S.CT.

a eenseseemnansennnas 14

STATUTES

I a edienceimnntlomaoeneneciananions 7

29 U.S.C. § 412

l

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Third Circuit dated September i7, 2001, is set forth in

the Appendix, p.la (266 F.3d 236). The opinion of ‘the

United States District Court for the Western District of

Pennsylvania dated January 12, 2000 is set forth in the

Appendix, p.53a.

STATEMENT OF THE BASIS OF JURISDICTION

OF THE SUPREME COURT

The statutory provision for this Court’s jurisdiction is

28 U.S.C. Section 1254. The United States Court of Appeals

for the Third Circuit issued its Decision in this case on

September 17, 2001. This Petition was timely filed.

RELEVANT STATUTORY PROVISION

INVOLVED IN THIS CASE

Statutory Provision

1. 29 U.S.C. §464

Sec. 304. (a) Upon the written complaint of any

member or subordinate body of a labor organization

alleging that such organization has violated the provisions

of this title (except section 301) the Secretary shall

investigate the complaint and if the Secretary finds

probable cause to believe that such violation has occurred

and has not been remedied he shall, without disclosing

the identity of the complainant, bring a civil action in any

district court of the United States having jurisdiction of

the labor organization for such relief (including

injunctions) as may be appropriate. Any member or

subordinate body of a labor organization affected by any

violation of this title (except section 301) may bring a

civil action in any district court of the United States

2

having jurisdiction of the labor organization for such

relief (including injunctions) as may be appropriate.

STATEMENT OF CASE

Procedural History

Prior to January 6, 1998, Petitioner, George Ross, and

Edward Nassan and Darrell Brown were all officers and

employees of Local 57 of the Hotel Employees and

Restaurant Employees International Union (hereinafter

referred to as “HEREIU”). On January 6, 1998, all three

employees were fired when a trusteeship was imposed upon

Local 57 by the International Union. As a result of the

imposition of the trusteeship, Nassan, Ross and Brown filed

suit in Federal District Court against HEREIU and the

appointed Co-Trustees under Titie III of the Labor

Management Reporting and Disclosure Act of 1959, 29

U.S.C. §401 et seq. (hereinafter referred to as “LMRDA”), at

No. 98-629, challenging the International Union's right to

impose a trusteeship (hereinafter this case will be referred to

as “trusteeship” case). In May 1998, Nassan and Brown

advised Ross that they were withdrawing from the trusteeship

case resulting in Ross pursuing that case alone.

Shortly after Nassan and Brown withdrew from the

trusteeship case, Ross learned that the trusteeship would be

terminated and that the International Union would be

scheduling new local elections and promulgating election

guidelines which would effectively result in Ross being

declared ineligible. Having learned of this information, Ross

filed a Declaratory Judgment Action in the Court of Common

Pleas of Allegheny County, Pennsylvania against HEREIU

and the Co-Trustees (hereinafter referred to as “election”

case). The Defendants immediately removed the election

case to Federal District Court at No. 98-1131.

In the election case, Ross requested a temporary

restraining order asking the District Court to restrain the

3

On July 7, 1999, both actions were consolidated at

No. 98-1131 with all parties consenting to have Federal

Magistrate Judge Caiazza preside over the cases.

Prior to trial, Defendants filed numerous pretrial

motions. On April 23, 1998, Defendants filed a motion to

dismiss in the trusteeship case. This motion was denied on

December 2, 1998. On December 17, 1998, Defendants filed

a motion for summary judgment in the trusteeship case which

was denied on June 11, 1999.

Ross filed an amended complaint on February 9, 1999

adding Local 57 as a party and clarifying the damages

originally sought by Ross. Defendants never filed an

answer to the amended complaint.

Immediately prior to trial, Defendants filed a motion

in limine requesting the trial court to preclude Ross from

offering any evidence or argument regarding his claim that he

was improperly disqualified as a candidate. On October 4,

1999, on the morning of jury selection, the trial court denied

Dei.-ndants’ motion, but held that Ross could not seek any

relic f which would affect a change in the Local 57 election.

The consolidated matters then proceeded to trial on

October 4, 1999. After three days of trial and over two days

of deliberation, the jury could not reach a verdict resulting in

the Judge declaring a mistrial. The matter was then

rescheduled to be tried on January 24, 2000. Prior to the

commencement of trial, Defendants filed another motion in

limine and motion for summary judgment on December 7,

1999.

On January 12, 2000, the trial judge granted

Defendants’ motion for summary judgment and dismissed

Ross’ case. Ross filed a timely appeal with the Third Circuit

Court of Appeals which affirmed the trial court’s

determination.

4

Petitioner now seeks review by this Honorable

Supreme Court.

Statement of the Facts

Prior to January 6, 1998, George Ross had been a

member of Local 57 of the HEREUI for over twenty years.

In those years, Ross had served as an elected and appointed

business agent and as an elected member of the Executive

Board.

In the summer of 1997, a federal investigation began

into the operation of Local 57 as a result of the Local’s

affiliation with Anthony “Nini” Lagatutta, an alleged member

of organized crime. Simultaneously with this federal

investigation, internal problems began between Local 57’s

long time power base and Nassan, Ross and Brown. This

power struggle became so intense that the Executive

Secretary, Nancy Davis, a/k/a Nancy Ross, asked the

International Union to impose a trusteeship to retake control.

In a letter dated November 20, 1997, Kurt Muellenberg, the

federally appointed monitor,' suggested that a trusteeship be

imposed on Local 57 based upon specific charges against the

then President, Louis S. Sanfilippo; Executive Secretary,

Nancy Davis; Board Secretary, Vince Fera; and Louis

Masco.” Notwithstanding the immediacy of a trusteeship,

General President, Hanley did not appoint Robert Baker as a

Trustee until January 6, 1998.

' By Consent Decree dated August 21, 1995, Muellenberg was

appointed as a monitor over the operation of the HEREIU. The Decree

arose out of charges that the International Union had been infiltrated by

members of organized crime. The Decree gave the monitor broad powers

with regard to eliminating the influence of organized crime in the

International Union and its Locals.

2 Muellenberg’s letter states that a trusteeship “should be imposed”. In

a letter to Local 57’s membership, General President Hanley indicated

that he was imposing a trusteeship at the “suggestion” of the monitor.

5

On January 6, 1998, armed with authority from

General President Hanley, Baker appeared at the offices of

Local 57 in Pittsburgh and promptly fired Nassan, Ross and

Brown. President Sanfilippo resigned and Nancy Davis

remained untouched. Because they could not understand

why they had been fired when no charges had been brought

against them, Nassan, Ross and Brown protested to the

monitor’s office. The monitor’s office contacted

International Executive Vice-President, Ron Richardson

regarding the termination of Nassan, Ross and Brown. After

Richardson directed the Trustee to rehire Nassan, Ross and

Brown; the Trustee did so within 24 hours. All three men

were hired on probation with Nassan being demoted from a

General Organizer to a Business Agent.

Nassan, Ross and Brown filed the trusteeship case

challenging the imposition of the trusteeship. At the end of

April 1998, Nassan and Brown withdrew as parties leaving

Ross as the lone Plaintiff in the trusteeship case. Shortly

after Nassan and Brown withdrew from the trusteeship case,

the Co-Trustees recommended to Genera! President Hanley

that the trusteeship be terminated and that elections be held

for officers. In conjunction with this action, the International

Union prepared election guidelines which were specifically

designed to remove Ross as an eligible candidate and

provided them to the Co-Trustees.’ Because these guidelines

precluded Ross from seeking any elected office, he initiated a

second action, this time in State court requesting that he be

declared eligible as a candidate. Before a State Court judge

could rule on Ross’ request, Defendants removed this case to

Federal Court.

3 The International Union also drafted the new bylaws and provided

them to the Co-Trustees for the Local’s use.

6

With respect to the eligibility issue, pleadings’ and

evidence demonstrate that on numerous occasions, Ross was

declared eligible to seek elected office even though he had

been more than sixty days delinquent in the payment of his

monthly dues. Notwithstanding the International

Constitution and local by-laws to the contrary, Ross was

never suspended. However, in November 1997, Ross was

suspended by President Sanfilippo when he was delinquent in

the payment of his dues. Ross contended that he was not

given advance warning of his delinquency prior to the

expiration of the sixty days as had been past practice in Local

57. He also contended that he was treated differently this

time because President Sanfilippo believed he was

cooperating with the federal investigation into his

administration.

Federal District Court Judge Lancaster denied Ross’

request for a temporary restraining order. The election

proceeded with Nassan being elected President; Brown being

elected Vice-President and Amanda Veoni,

Secretary/Treasurer. In spite of his displeasure with Nassan

making a deal with the International Union, Ross did support

him for President.

The jury trial in both actions was set for October 4,

1999. After hearing testimony for three days, the jury was

unable to reach a verdict after over two days of deliberations.

The trial judge then declared a mistrial. Prior to the

commencement of the retrial, Defendants filed a motion for

summary judgment. In that motion, the Defendants argued

that the LMRDA did not permit recovery of the damages

Ross sought. Ross opposed the Motion contending that the

trial court had previously disposed of Defendants’ argument.

The federal magistrate disagreed with Ross and concluded

that Title III of the Act did not permit the recovery of

individual damages, but only those damages experienced by

* See Defendants’ Responses to Plaintiff's Request for Admissions.

7

the Local Union. The Third Circuit Court of Appeals

affirmed. Ross now seeks review by this Honorable Court.

In disposing of Ross’ appeal, the Circuit Court

initially acknowledged that Ross presented a question of first

impression. The Court then reviewed the legislative history

of the Labor Management Reporting and Disclosure Act of

1959 and this Court’s holdings in Finnegan v. Leu, 456 U.S.

431, 72 L. Ed. 2d 239, 102 S. Ct. 1867 (1982) and Sheet

Metal Workers International Association v. Lynn, 488 U.S.

347, 102 L. Ed. 2d 700, 109 S. Ct. 639 (1989) and concluded

that Title III of LMRDA did not permit an individual to

recover damages for an improper imposition of a trusteeship.

Disagreeing with the Circuit Court’s determination, Ross

now seeks review by this Court.

REASONS FOR GRANTING THE WRIT

IN DETERMINING A QUESTION OF FIRST

IM?RESSION, THE LOWER COURTS INCORRECTLY

INTERPRETED TITLE III — SECTION 304 OF THE

LAI‘OR —~MANAGEMENT REPORTING AND

DIS: “LOSURE ACT OF 1959, 29 U.S.C. §464, BY

DENYING PETITIONER A CAUSE OF ACTION WHEN

HE WAS HARMED BY THE IMPOSTION OF A

TRUSTEESHIP IMPOSED FOR AN _ IMPROPER

PURPOSE AND MAINTAINED IN BAD FAITH.

The issue here is one of the first impression for the

Court. Does § 464 of the LMRDA give a member of the

union affected by a violation of LMRDA the right to seek

appropriate relief? Since the Defendants were using the

trusteeship as a tool to harm Ross, he is entitled to be

compensated for any losses sustained as the result of that

misuse. Furthermore, allowing Ross to seek individual

damages will inure to the benefit of the entire membership by

causing the International Union to fully consider the

:

ramification of its actions in imposing trusteeships in the

future.

The purpose of the LMRDA is to prevent unions from

abusing the rights of members. Title III by its very language

gives a member the right to seek relief for any violation.

Given that Ross was harmed by Defendants, he is entitled to

seek damages. Since the District Court held to the contrary,

it erred as a matter of law.

After the first trial ended in a hung jury, the

Defendants filed a motion for summary judgment under F. R.

Civ. P. 56. In their motion for summary judgment,

Defendants argued that Ross could not set forth a

claim under any set of facts. In essence, Defendants argued

that Ross had no right to recover individual damages under

the LMRDA and therefore Ross’ Complaint must be

dismissed with prejudice.

In his Complaint, Ross requested back-pay, front-pay,

reimbursement for medical and automobile insurance costs

and counsel fees. Prior to this case, the Third Circuit Court

of Appeals had not previously addressed the proper

interpretation of § 464(a) of the Act.

In relevant part, § 464(a) of the LMRDA states as

follows:

Any member of subordinate body of a labor

Organization affected by any violation of this

title (except Section 301) may bring a civil

action in any District Court of the United

States having jurisdiction of the Labor

Organization for such relief (including

injunctions) as may be appropriate. (emphasis

added).

In its opinion, the Third Circuit Court of Appeals

concluded that only Title | of LMDRA and not Title III

9

provides recourse to a union member harmed by its Union.

To support its conclusion, the Court of Appeals relied heavily

upon this Court’s opinions in Finnegan and Sheet Metal

Workers. Ross respectfully suggests that neither Finnegan

nor Sheet Metal Workers are dispositive of Ross’ issue and

therefore presents a question of first impression to be

addressed by this Court.

Title | of LMDRA provides various rights to all union

members including free speech and right of assembly.

Conversely, Title III controls union activity specifically when

a trusteeship has been imposed. Subsection (c) of Section

464 gives any member of a labor organization the right to file

a civil action if a trusteeship was not established for a proper

purpose or maintained in good faith. Thus Title III controls

all union activity when a trusteeship has been imposed, while

Title I could be implicated under circumstances when a

trusteeship has not been imposed. The Circuit Court seems

to suggest that all rights evolve from Title I and those rights

must be categorized as free speech and assembly. Contrary

to the Court of Appeals rationale, Ross is not complaining of

Title I rights but is complaining of the International Union’s

improper imposition of a trusteeship and how that action has

adversely affected him. Therefore, he is asserting a separate

cause of action under Title III.

Section 464(a) section must be read in light of the

intended purpose of the Act which is to “prevent abuses in

the administration of the trusteeships by labor organizations”

and to protect “the rights and interest of employees.”

There is no caselaw that specifically addresses the

unique circumstances before this Court. However, to support

his ruling, the trial judge relied upon Gesink v. International

Association of Machinists and Aerospace Workers, 831 F.2d

214 (10" Cir, 1987) which Ross contends is distinguishable.

In Gesink, plaintiff was the business representative for

a Local for the Machinists Union. The Local voted to request

10

supervision by the Grand Lodge. After a supervisor was

appointed, Union disciplinary charges were filed against the

plaintiff. The Local delegates then voted to suspend the

plaintiff from his office pending resolution of internal

charges. A trial before a Union committee was held resulting

in the Union’s International President removing plaintiff as a

business agent.

Plaintiff filed suit seeking damages for his

termination. The Defendants filed a motion for summary

judgment arguing that Plaintiff had no cause of action for

damages under Title III of the LMRDA. In disposing of

plaintiff's argument that he is entitled to individual damages

under § 464(a), the District Court noted that the intended

purpose of the LMRDA was to prevent improper uses of

trusteeships. Examples of improper uses of trusteeships

included consolidating the power of corrupt officials,

plundering the resources of local! unions or stifling the growth

of political competition within the union. The trial court also

recognized the United States Supreme Court’s decision in

Finnegan as instructive to the issue. Based upon its limited

interpretation of the intent of § 464(a) and its interpretation

of the holding in Finnegan, the District Court concluded that

plaintiff had no cause of action for individual damages.

Instead, the District Court held that § 464(a) was limited to

providing relief on behalf of Unions only.

The 10" Circuit Court of Appeals then affirmed the

trial court’s dismissal on the basis of the District Court

opinion.

In reaching its determination, the trial court in Gesink

chose to ignore the reasoning set forth in Higgins v. Harden,

644 F.2d 1348 (9" Cir. 1981) believing that the Supreme

Court’s decision in Finnegan demanded that conclusion.

In Higgins, the International Association of

Machinists and Aerospace Workers (IAM), the local union

and various officers, appealed the District Court’s decision

11

awarding back-pay, other benefits and attorney’s fees to

plaintiff. The Circuit Court of Appeals affirmed the District

Court’s determination that a trusteeship was invalidly

imposed and the awarding of certain individual damages.

Higgins was employed as a union organizer for the

Local Union. Apparently a dispute arose between plaintiff

and the directing business representative for the Local Union.

As a result of that dispute, the business representative

suggested to the International Union that the Local be placed

under supervision. The International accepted the suggestion

and placed the Local Union under trusteeship. Plaintiff was

then terminated as an organizer for the district lodge.

Plaintiff then filed suit under the LMRDA alleging

that the trusteeship was improperly imposed and that he was

terminated in retaliation for his support of the terminated

business representative. Based upon the evidence, the

Dis:rict Court awarded plaintiff back-pay, lost benefits and

counsel fees. The Court of Appeals affirmed determining

that the trusteeship was not validly imposed. From the

Cou t’s opinion, it can be inferred that plaintiff was entitled

to a | compensatory damages arising from that improper act.

Clearly, the Court was of the opinion that individual

compensatory damages, such as back-pay, were appropriate.

In Finnegan, the specific issue before the Supreme

Court was whether a Union President violated the LMRDA

when he discharged a Local Union appointed business agent

who supported the Presicent’s opponent for office. Plaintiff

had supported the incumbent President in a hotiy contested

election. After the new Union President took office, he

discharged the plaintiffs who had supported his opponent.

The discharged business agents then filed suit in the United

States District Court alleging that they had been terminated

from their appointed positions in violation of the Act. The

District Court granted summary judgment to the defendants

12

holding that § 411(a) of the Act gave plaintiff no protection

from discharge.

In Finnegan, a trusteeship had not been imposed.

Instead, the plaintiffs lost their jobs merely through a change

of leadership. Title I guarantees members the right to vote

and express their views without the threat of reprisals.

However, an election victory is a mandate for a successful

candidate to implement his programs. Since the purpose of

Title I is to ensure the democratic process, there is no

impediment to that purpose if a successful Union President

chooses _to hire employees consistent with his own

philosophy. The Court stated:

For whatever limits Title I places on a union’s

authority to utilize dismissal from union office

as “part of a purposeful and deliberate

attempt... to suppress dissent within the

union, it does not restrict the freedom of an

elected union leader to choose a staff whose

views are compatible with his own.

102 S. Ct. at p. 1873.

The overriding factor which persuaded the Supreme

Court in making this determination was the fact that

Congress was clearly concerned with promoting union

democracy. To require a newly elected President to hire the

opposition would be counter to the intended purpose. Critical

in the Court’s analysis was the fact that plaintiff's Title I

rights were not violated.

The Finnegan rationale is not without exception. In

Sheet Metal Workers International Association v. Lynn,

supra., this Court was confronted with another termination

challenge under the LMRDA. In Sheet Metal Workers, the

plaintiff, Lynn, was an elected business representative for

Local 75 of the International Union. After a trusteeship was

imposed for financial reasons, plaintiff opposed a dues

13

increase proposed by the trustee, even though the trustee had

requested plaintiff's support. Five days after the dues

increase was voted down, plaintiff was removed from his

position as a business representative. Plaintitf brought suit in

District Court under § 412 of the LMRDA claiming that his

removal violated his free speech rights guaranteed by Title |

of the Act. The District Court granted summary judgment

relying upon Finnegan. The Court of Appeals reversed.

This Court affirmed the Court of Appeal’s reversal

notwithstanding the Finnegan decision. In distinguishing

Finnegan, this Court utilized a weighing process. This Court

noted that in Finnegan, the Court held that the need to

vindicate the democratic process outweighed any potential

chilling affect on free speech when an appointed business

agent is terminated for supporting the opposition candidate.

This Court then went on to explain in Sheet Metal Workers

that the removal of an elected official by a trustee is much

different requiring a different analysis. Not only would a

fired elected official take pause before exercising his free

speech rights under Title I, but his constituency likewise

would be hesitant to express opposition in light of their

leader’s termination. The impression left to the general

membership is that a challenge to the union hierarchy is at

one’s peril. The Court concluded that this result was contrary

to the expressed intent of the LMRDA which is to ensure a

democratic organization with the freedom to discuss union

policies and criticize leadership. Thus, the Court concluded

that plaintiff's retaliatory removal stated a cause of action

under § 412 of the Act.

In Sheet Metal Workers, this Court held that the

imposition of a trusteeship did not dilute Title I protection.

Furthermore, this Court has not held that Title I is exclusive

in providing protection to union members or that Title III

only provides rights or protections through Title I. If only

Title I rights exist and Title III provides no additional rights,

then Congress would not have needed to insert the last

14

sentence of Section 464(a) in Title III, which is the exact

language set forth in Section 412 of Title I.°

Other jurisdictions have rendered decisions which

support Ross’ position in this appeal.

In McDonald v. Oliver, 525 F.2d 1217 (5" Cir. 1976),

the Court of Appeals affirmed the District Court’s judgment,

in relevant part, dissolving a trusteeship imposed by the

International Union and awarding back-pay and attorney’s

fees.

Initially, the Court recognized that,

although the primary purpose of an

individual’s lawsuit is obviously to vindicate

his own rights or facilitate his own candidacy,

there can be little doubt that he renders a

substantial service to the union as an

institution and to his members individually in

protecting local democratic processes through

Titles I and Il]. The successful litigant dispels

the “chill” cast upon the rights of others.

at p. 1221. The Court then went on to hold that intra-union

appeals would be unlikely to provide much relief since the

protests would be to the very International which invoked the

trusteeship.” at p. 1229. Finally, the Court of Appeals

affirmed that award of back-pay to plaintiff.

Likewise, in Petramale v. Local No. 17 of Laborer’s

‘International Union of North America, 671 F.Supp. 261

(S.D.N.Y. 1987), the District Court recognized that an

individual is entitled to recover personal damages under the

* Title I was adopted as an amendment on the Senate Floor because

legislators feared that union members needed general protection from

union leadership. Steelworkers v. Sadlowski, 457 U.S. 102, 102 S.Ct.

2339, 72 L.Ed.2d 707 (1982). Thus Title I protection must be in addition

to any protection provided to union members under Title III.

15

LMRDA. Although the plaintiff was unable to sustain his

claim by sufficient proof, the District Court did acknowledge

plaintiff's right to seek compensatory damages:

It is beyond cavil that in actions under

LMRDA, a plaintiff is required to prove that

the injury he or she sustained was causally

connected to the wrongdoing by defendant.

at p. 265. Because Plaintiff could not substantiate his

damages, the trial court reversed the award of substantial

damages by the jury and awarded nominal damages in the

amount of one dollar ($1.00).

Five years after the United Supreme Court decided

Finnegan, the District Court in Georgia still acknowledged

with approval McDonald in Pruitt v. United Brotherhood of

Carventers and Joiners of America, 659 F. Supp. 1511 (ND

Ga. 1987). In Pruitt, the plaintiff, a business agent, filed suit

under Title [II of the LMRDA against the International Union

and the Trustee as a result of losing his job during the

trust-eship.

In its discussion of plaintiff's cause of action- under

the LMRDA, the Court noted that the Act was “needed to

protect both the rights of the membership as a whole and the

rights of individual members.” at p. 1517 (emphasis added).

The Court also recognized that in some instances trusteeships

have been used as a means of consolidating power and

impeding the growth of competing political elements within

the organization. Furthermore, the manner in which § 464 is

drafted suggests that either the local labor organization or

union members themselves can bring suit for a wrongfully

maintained trusteeship. The Court also noted that since

individual members can bring suit, those individuals can seek

damages, citing to McDonald. (See Note 11, p. 1520). Based

upon the foregoing analysis, the Court permitted plaintiff to

16

proceed with his claim arising out of the maintenance of the

trusteeship.

Finally, the 6” Circuit Court of Appeals was

confronted with a factual scenario very similar to the Ross

case in Pope v. Office and Professional Employees

International Union, 74 F.3™ 1492 (6" Cir. 1996).

In Pope, the plaintiff had been terminated as a union

employee by the trustee appointed by the International after

the International Union determined that Pope was acting

against the best interest of the current administration. It was

clear that Pope represented a threat to the existing power

structure and for that reason, he needed to be removed. In

fact, changes were made to the local constitution to ensure

that Pope would not be eligible to seek an elected office in

opposition to the current power base.

In an attempt to stop Pope, supporters of the current

administration requested the International to impose a

trusteeship. The International Union accepted the request

and did appoint a Vice- President as the Trustee. That

Trustee then fired Pope. The Trustee also refrained from

scheduling elections in order to assist the International’s slate

of candidates, thereby attempting to control the election

outcome. Notwithstanding the International’s attempts, the

reformers won the election and took control over the local.

Before the trusteeship was dissolved, Pope filed suit

in District Court alleging that the trusteeship was imposed for

an improper purpose and sought individual compensatory

damages, including lost wages. After a fourteen day trial, the

jury found in favor of Pope and awarded $100,000.00 in

compensatory damages and $100,000.00 in punitive

damages. In reaching its verdict, the jury concluded that the

evidence proved that the trusteeship was maintained for an

improper purpose and that Pope’s termination as an employee

was part of a scheme to suppress Pope’s participation in the

union’s election and affairs.

17

On appeal, the Court of Appeals affirmed the verdict.

In doing so, the Court of Appeals rejected the International

Union’s arguments that suggested that Pope failed to prove a

claim for which relief could be granted. The Court rejected

the International’s argument that plaintiff's cause of action

was moot since the trusteeship was dissolved, acknowledging

that an International Union could use a trusteeship as a means

to suppress members’ rights and then dissolve the trusteeship

before plaintiff had his day in court resulting in plaintiff's

claim being considered moot. The Court of -Appeals

concluded that Pope’s cause of action was not moot since his

rights had been violated prior to the dissolution of the

trusteeship and the damages he sought were related to the

violations he suffered as a result of the imposition of the

trusteeship.

Section 464, itself, and all of the foregoing cases

support Ross’ position that he can pursue individual claims

under Title III of the LMRDA. Section 464 states that “any

member or subordinate body of a labor organization affected

by any violation of this Title (except § 301) may bring a civil

action. . . for such relief. . . as may be appropriate.”

(emphasis added). \f individual members have no rights or

claims under Title III, then why would this section give a

member a cause of action?

Ross’ theory throughout this litigation has been that

the International Union was using a trusteeship as a

mechanism to discredit and remove individual members of

Local 57 (i.e., Nassan, Ross and Brown). Initially, the

trusteeship was going to be used to retain Nancy Davis as the

anointed power base for the International Union. When it

became apparent that she was not going to survive the federal

investigation, the International Union needed to align itself

with someone else. In this instance, that someone else was

Nassan, at the expense of Ross. As part of that deal, Nassan

had to agree with the International Union to effectively

destroy and remove Ross.

18

The record is replete with evidence establishing the

fact that the International Union wanted to remove Ross as an

influential member of Local 57. Nancy Davis testified about

a conversation she had with Co-Trustee Baker at the end of

April 1998, prior to the conclusion of the trusteeship and the

nomination of candidates for offices, that Nassan, Brown and

Amanda Veoni would be the slate for the yet to be announced

election. Likewise, Co-Trustee Carlson indicated to Davis in

April 1998 that Nassan, Brown and Veoni would be “taking

over” at the end of the trusteeship. In the context of the

eligibility requirements, the Co-Trustees advised Davis that

they were drafting the by-laws and would make “whoever

they wanted eligible.” Baker also indicated to Davis that

“George (Ross) had to go.” Finally, Ron Richardson

informed Davis at a trustee meeting in April 1998, that

“Eddie Nassan is the boy. He will be the president.”

Barry Trainor, an investigator for the monitor’s office

into the affairs of Local 57, also testified as to the agreement

offered to Nassan by the International Union which

ultimately was at the expense of Ross. Trainor testified that

he had “multiple” discussions with Nassan regarding a deal

the International Union was offering him. Nassan indicated

to Trainor that he (Nassan) had been offerea a deal to enable

him “to run for President of Local 57.” Sometime in April

after April 16, 1998, Nassan advised Trainor that he was

going to “accept the deal with the International.”

Nassan, himself, was required to admit on the witness

stand that the International Union had offered him a deal

which required the elimination of Ross. Ross’ Exhibit No. 8,

which is Nassan’s own handwriting, memorialized a meeting

that Nassan had with Co-Trustee Carlson on April 3, 1998.

At that meeting, Co-Trustee Carlson “tried to make a deal to

eliminate George Ross.” This deal was the one referred to

by Trainor in his testimony.

19

The Defendants argued at trial that they did nothing

out of the ordinary when they disqualified Ross as an eligible

candidate for elective office. However, the evidence

established that eleven out of thirteen times, Ross was

delinquent in the payment of his monthly dues. Yet, Ross

was declared eligible to hold various offices and did win

various elections including the position of a delegate for the

International Convention. Even though the Co-Trustees

admitted that it was common practice to notify any member

of his/her delinquency in sufficient time for the member to

pay his dues and avoid suspension, in November 1997, the

office staff of Local 57 failed to give Ross notification of his

delinquency even though the office staff gave him notices for

other members. In fact, the staff's failure to follow this

common practice in 1995, was the reason for Local 57

overlooking Ross’ delinquency when considering his

eligibility for .a national delegate to the International

Convention in 1996. The International Union also failed to

deny him credentials at the Convention, even though reports

of | is delinquency and suspension had been furnished to the

Inte ‘national Union.

If believed, this evidence proves that the trusteeship

was being used as a vehicle to remove George Ross. For

summary judgment purposes, this Court must assume that the

trusteeship was imposed and maintained for an improper

purpose, the purpose being to prevent Ross (and previously

his two colleagues, Nassan and Brown) from seeking and

winning elective offices in Local 57. As a result of this

improper use of a trusteeship, Ross suffered direct or

proximate damages. But for the imposition of the

trusteeship, Ross still would be employed. Since the

trusteeship was intended for an improper purpose and

maintained in bad faith, the Defendants violated the

LMRDA. Ross, as a member of Local 57, was “affected” by

the violation of the LMRDA. The damages Ross requested

were “appropriate” to make him whole.

20

The actions of the International Union will have also

a chilling affect on all members of Local 57. If the

International Union succeeds in destroying Ross and leaving

him with no recourse, then other members will refrain from

opposing the International Union. On the other hand, if the

International Union is required to defend Ross’ action and to

compensate him for its misuse of the trusteeship, then the

International Union will think twice next time before using a

trusteeship as a means to harm one of its members. In this

respect, Ross’ actions benefit all members and inure to the

benefit of the “subordinate body of a labor organization” in

addition to himself.

The purpose of the LMRDA is to prevent unions from

abusing the rights of individual members. Title III by its very

language gives a member the right to seek relief for any

violation. If there is a violation which adversely impacts a

member, that member is entitled to appropriate relief. In this

instance, appropriate relief would be all monetary damages

that flow from that violation.

CONCLUSION

Viewing the facts in a light most favorable to Ross,

this Court must assume that the International Union imposed

a trusteeship upon Local 57 for an improper purpose and in

bad faith. Section 464(a) of the LMRDA permits any

member of a subordinate body of a labor organization

affected by a violation to seek appropriate relief. Neither

Section 464(a) nor any case law restricts Ross’ right to seek

individual damages for the wrong he suffered. If he is

precluded from recovering his damages, then Section 464(a)

of Title III is meaningless. Section 464(a) would not provide

a member the right to seek relief if in fact that member was

limited to damages to the union as a whole. The Congress

could have clearly provided for such a limitation but chose

not to.

21-

Therefore, Ross is requesting the Honorable Supreme

Court to grant this Petition to resolve this question of first

impression relating to the abusive use of trusteeships under

Title II] of the Labor Management Reporting and Disclosure

Act of 1959.

Respectfully submitted,

By:

Michael A. Karaffa, Esquire

Counsel of Record

Allegheny Building, Suite 1212

429 Forbes Avenue

Pittsburgh, Pa. 15219

(412) 471-3257

Thomas M. Castello, Esquire

Of Counsel

2882 Glenmore St.

Pittsburgh, Pennsylvania 15216

(412) 344-7833

Attorneys for Petitioner

la

No. 00-3142

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

GEORGE A. ROSS,

Appellant

¥;

HOTEL EMPLOYEES AND RESTAURANT

EMPLOYEES INTERNATIONAL UNION; ROBERT

BAKER, Co-Trustee; CAROL CARLSON, Co-Trustee

September 14, 2000, Argued

September 17, 2001, Filed

PRIOR HISTORY: :

Appeal from the Judgment of the United States District Court

for the Western District of Pennsylvania. Civil Action No.

98-cv-01131. Magistrate Judge: Francis X. Caiazza.

DISPOSITION:

Affirmed.

COUNSEL:

THOMAS M. CASTELLO, ESQ. (Argued), Plunkett &

Cooney, P.C., Pittsburgh, PA, Attorney for Appellant.

RICHARD L. STOPER, Jr., ESQ. (Argued), SUSAN L.

GRAGEL, ESQ., Rotatori, Gragel & Stoper CO., L.P.A.,

Cleveland, Ohio, Attorneys for Appellees.

JUDGES:

Before: ROTH, McKEE and RENDELL, Circuit Judges.

2a

OPINION BY:

McKEE

OPINION:

OPINION OF THE COURT

McKEE, Circuit Judge.

We are asked to review the district court's grant of

summary judgment in favor of Hotel Employees and

Restaurant Employees International Union ("HEREIU"), and

Robert Baker and Carol Carlson; and against plaintiff George

Ross. Ross sued under Title III of the Labor Management

Reporting and Disclosure Act of 1959. For the reasons that

follow, we will affirm. -

I. Factual and Procedural Background!

George Ross is a member of Local 57, a subordinate

labor organization of HEREIU. Before January 6, 1998,

Ross had been an elected non-salaried member of the

Executive Board of that Local as well as an appointed full

time salaried employee holding the title of business agent.”

On September 5, 1995, the United States entered into a

Consent Decree with HEREIU. The Consent Decree

appointed a federal monitor "for the remedial objective of

relieving HEREIU and Local 57 from the direct or indirect

influence of any organized crime group or the threat of such

an influence." App. At 104. Sometime during the summer of

1997, the United States Department of Justice began

investigating organized crime's relationship with Local 57.

Thereafter, the federal monitor brought charges of corruption

involving several officers of Local 57 including Louis

Sanfilippo, President; Nancy Davis, Secretary-Treasurer;

Vince Fera, Recording Secretary; and Louis Masco, a union

member.

3a

At the same time this investigation was proceeding, a

power struggle erupted between Local 57's "power base” and

three of the other officers of the Local: Ross, Nassan and

Brown.° Ross and Brown were then business agents of Local

57, and Nassan was a general organizer. According to Ross,

the power struggle progressed to the point that the Local's

Executive Secretary, Nancy Davis, n4 asked the International

to assume control of Local 57 by establishing a trusteeship.

In November of 1997, the federal monitor also requested

that a trusteeship be established based on the charges brought

against the officers of Local 57. Eventually, Robert Baker

was appointed as the first of two Trustees who assumed

control of Local 57.° On the same day he was appointed,

Baker fired Nassan, Ross and Brown; and Sanfilippo

resigned. However, Nassan, Ross and Brown were rehired

within 24 hours of their firing after complaining to the

monitor. |

An election for officers of Local 57 was scheduled for

March 1998, but the Trustees canceled the election, and

suspended the Local's constitution and by-laws. In April of

1998, Ross, Nassan and Brown filed the first of two lawsuits

challenging HEREIU's right to impose a trusteeship. They

named HEREIU and the two Trustees as defendants (the

“Trusteeship case"). The plaintiffs asserted that, "given the

resignation of Sanfilippo and the failure of HEREIU or the

Trustees to suspend Nancy Ross, it is clear that the

continuation of the Trusteeship is improper and therefore

must be dissolved." Ross’ Complaint at P 26 (No. 98-629).

The plaintiffs sought declaratory and equitable relief under

Title III of the Labor Management Reporting and Disclosure

Act of 1959 (the "LMRDA") which governs the creation and

maintenance of trusteeships by labor organizations. See 73

Stat. 519 § § 301-01 (1959), 29 US.C. § § 461-66 (1998 &

Supp. 2000) The prayer for relief included a request that the

court dissolve the Trusteeship, reinstate the constitution and

by-laws of Local 57, and order immediate elections. The

4a

plaintiffs also moved for a TRO to enjoin the Trustees from

running Local 57's operations. That motion was denied. At

the end of April, Nassan and Brown withdrew from the

lawsuit, leaving Ross as the only plaintiff.°

During the summer of 1998, the Trustees decided to hold

new elections and terminate the Trusteeship. They also issued

new election guidelines under which Ross became ineligible

to run for office because his union dues were delinquent.

Ross argues that these guidelines were specifically intended

to remove him as an eligible candidate.’ In addition to the

new election guidelines, the Trustees also "proposed a new

Constitution which terminated George Ross' position as full

time salaried business agent." Ross' Amended Complaint at P

38 (No. 98-629).

In July of 1998, Ross filed a second lawsuit against the

same defendants in state court (the "election case"). Ross

sought a declaration that he was an eligible candidate for the

upcoming election, and an injunction to prevent the election

from proceeding until his eligibility could be determined.

That suit was removed to federal court on motion of the

defendants, and the district court thereafter refused to enjoin

the election. Ross was not permitted to run for office because

of the aforementioned eligibility restrictions. On the day of

the election, Ross, Nassan and Brown received letters

terminating their employment as business agents. As a result

of the election, Nassan was elected president and principle .

officer. After the swearing in of the new officers of the union,

the Trusteeship was dissolved. Ross was not re-appointed as

a business agent by the newly elected officers.

In December of 1998, the defendants filed a motion for

summary judgment in the Trusteeship case. They argued that

Ross’ claim for equitable relief had been rendered moot by

the election of new officers and the resulting dissolution of

the Trusteeship. Ross answered arguing that the crux of the

Trusteeship case was that the Trusteeship had been imposed

- ee ee patie! ern

BENS ST SL ad es ?

FARA ELS

5a

in bad faith to remove political opposition. He insisted that

all actions carried out pursuant to the Trusteeship were void.

In February of 1999, Ross filed an amended complaint in the

Trusteeship case alleging continuing harm and asking the

district court to:

Void the following actions taken in conjunction with that

Trusteeship:

i. The suspension of the Local By-Laws

and Constitution;

ii. The firing of the Plaintiff, George Ross

on January 6, 1998;

iii. The imposition of the new eligibility

requirements to run for elected office intended

to exclude George Ross as a candidate for the

July, 1998 elections;

iv. The firing of George Ross on August

10, 1998. .

Ross' Amended Complaint, P 9 (No. 98-629). He also

requested temporary reinstatement, scheduling of new

elections, monetary damages, counsel fees, and costs.

The district court consolidated Ross' two lawsuits and the

matter was scheduled for trial. Essentially, Ross contended

that he was harmed in two respects as a result of the improper

continuation of the Trusteeship. He alleged that he had

suffered damages as a result of being declared ineligible to

run for office in the August 1998 elections. He also alleged

damages as a result of the termination of his appointed

position as a business agent. Prior to trial, the defendants

filed a motion in limine seeking to exclude evidence or

argument regarding Ross’ purportedly improper exclusion

from the August election. The court denied that motion but

did enter an order precluding Ross from "seeking any relief

which would effect a change in the union election." Ross v.

6a

Hotel Employees and Restaurant Employees Int'l Union, No.

98-1131, slip. op. at 9 (W.D. Pa. Oct. 4, 1999).

After both sides rested in the ensuing trial, the jury

reported that it was deadlocked and the court declared a

mistrial. However, before the scheduled retrial was to begin,

the defendants moved for summary judgment on all of Ross'

claims. The defendants argued that Ross was precluded from

asserting an individual claim for monetary damages under

Title III of the LMRDA. Ross opposed the motion by relying

solely on the law of the case doctrine. He contended that the

court had already implicitly decided that an individual could

sue for damages under Title III because the court sent the

damage suit to the jury in the first trial.

The district court rejected Ross' law of the case argument

Stating: "the issue of whether Title II] supports Ross's

individual requests for relief has not yet been adjudicated by

the Court." Ross v. Hotel Employees and Restaurant

Employees Int'l Union, No. 98-1131 slip. op. at 12 (W. D. Pa.

Jan. 12, 2000). The court noted that Ross had not asserted a

timeliness challenge, and concluded that it had broad

discretion to entertain the defendants’ motion for summary

judgment even though the issues had been submitted to a

jury. Id. at 6 (citing In re Sch. Asbestos Litig., 977 F.2d 764,

794 (3d Cir. 1992)). The court ultimately held that interests

of judicial economy counseled in favor of adjudicating the

summary judgment motion and granted summary judgment

in favor of the defendants and against Ross.

In doing so, the court relied on the text and legislative

history of the LMRDA as well as relevant precedent from

other circuit courts of appeals. The court held that Ross’

claims were all individual in nature and that Title III of the

LMRDA does not allow plaintiffs to seek individual relief.

Id. at 12-13, 16-17. Rather, the district court concluded that

Title III was intended to protect loca! unions, not their

individual members. Id. at 14. The court relied in large part

Ta

upon Gesink v. Grand Lodge, International Ass'n of

Machinists and Aerospace Workers, 831 F.2d 214 (10th Cir.

1987), in stating:

the purposes listed in Title III as justifying the

creation of a trusteeship have nothing to do

with protecting union members’ or employees’

individual rights; rather, they seek to protect

locals from ‘corruption’ or ‘financial

malpractice’ of their agents and to ensure that

such agents comply with their obligations and

‘otherwise carry [ ] out the legitimate objects

of ' the union.

Ross, slip. op. at 12. The court concluded that Ross' claim

was not appropriately brought under Title III because each

form of requested relief was intended to compensate him, not

his Local.

Plaintiff 's requests for lost wages, medical M

insurance coverage, and other ‘out of pocket

costs' associated with his termination as

business agent, as well as his request for

reinstatement, are asserted on his own behalf

and for his own benefit, not for that of Local

57. ;

Id. at 16-17. The district court did acknowledge that Ross

sought other equitable relief including a declaration that the

Trusteeship was improperly imposed in bad faith and the

voiding of certain of the Trustee's actions. Id. at 17 n.3.°

However, inasmuch as that relief was ancillary to Ross’

primary attempt to redress his individual injuries, Ross’ entire

case was dismissed. This appeal followed.

8a

II. Jurisdiction and Standard of Review

The district court had jurisdiction pursuant to § 304 of

the LMRDA. 73 Stat. 519 § 304, 29 U.S.C. § 464. We have

jurisdiction from the district court's final order granting

summary judgment under 28 U.S.C. § 1291. We exercise

plenary review. Resolution Trust Corp. v. Fidelity and

Deposit Co. of Maryland, 205 F.3d 615, 626 (3d Cir. 2000).

III. Discussion

Ross’ appeal presents two questions for resolution. First,

we must determine if Ross has waived the arguments he

makes now because he did not raise those arguments’ in

opposition to the defendants’ summary judgment motion in

the district court. If we address the merits of his claim we

must decide the very important question of whether Title III

of the LMRDA affords Ross a cause of action under the

circumstances of this case.

A. Waiver

As noted above, Ross’ opposition to the defendants’

motion for summary judgment in the district court was

limited to his contention that the law of the case precluded

summary judgment because the merits of his claim had been

submitted to a jury. The district court disagreed with his

position, and that ruling has not been appealed. On appeal,

for the first time, he argues the merits of the defendants’

claim that Title III of the LMRDA does not provide a cause

of action for individual relief.

Generally, "absent compelling circumstances an appellate

court will not consider issues that are raised for the first time

on appeal." Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir.

1984), overruled on other grounds recognized in Carter v.

Rafferty, 826 F.2d 1299 (3d Cir. 1987) (citing Singleton v.

Wulff, 428 U.S. 106, 120-21, 49 L. Ed. 2d 826, 96 S. Ct. 2868

(1976)). In Patterson, we explained:

9a

This prudential policy seeks to insure that

litigants have every opportunity to present

their evidence in the forum designed to

resolve factual disputes. By requiring parties

to present all their legal issues to the district

court as well, we preserve the hierarchical

nature of the federal courts and encourage

ultimate settlement before appeal. It also

prevents surprise on appeal and gives the

appellate court the benefit of the legal analysis

of the trial court. It is however not a

jurisdictional bar, and the statement of policy

permits exceptions in appropriate cases.

Id. (citations omitted).

The case at bar has important implications for the field of

labor law, and raises a question of first impression in this

circuit. Moreover, the procedural posture also raises

procedural questions that we have not previously addressed.

As noted above, the summary judgment motion was made

after a jury deadlocked and a mistrial was declared. However,

because of that unique procedural posture, the defendants can

hardly claim at this late date that Ross' assertion of a private

cause of action under Title III is a surprise, or that Ross'

position prejudices them. They have obviously assumed that

he had a private cause of action under Title III throughout the

course of this litigation including trial. Although Ross failed

to respond to the merits of defendants' arguments in the

summary judgment motion, the district court was afforded

the rare advantage of a fully developed record in analyzing

the issues raised by the motion for summary judgment.

Inasmuch as the defendants are not unfairly prejudiced by the

lateness of Ross" arguments, and given the importance of the

issues raised by this grant of summary judgment, we think it

appropriate to resolve this appeal on the merits, and not upon

the procedural grounds that the defendants argue in the

alternative.

10a

Moreover, the district court did not err in considering a

motion for summary judgment after a mistrial. If there are no

issues of material fact and a party is entitled to judgment as a

matter of law, judgment may be awarded at any time, even

after trial, under Rule 56 or under Rule 50. There was no

reason to require the court to go through the procedural

calisthenics of a second trial merely because the motion for

judgment was brought after the mistrial. Accordingly, we will

consider the merits of the arguments before us.

B. Title III of the LMRDA

This dispute arises in the context of a trusteeship that was

imposed pursuant to Title III of the LMRDA.'° The LMRDA

defines a trusteeship as "any receivership . . . or other method

of supervision or control whereby a labor organization

suspends the autonomy otherwise available to a subordinate

body under its constitution or bylaws." 73 Stat. 519 § 3(h),

29 U.S.C. § 402(h). Title III limits the establishment of

trusteeships as follows:

'Trusteeships shall be established and

administered . . . for the purpose of [1]

correcting corruption or financial malpractice,

[2] assuring the performance of collective

bargaining agreements or other duties of a

bargaining representative, [3] restoring

democratic procedures, [4] or otherwise

carrying out the legitimate objects of such

labor organization.

73 Stat. 519 § 302, 29 U.S.C. § 462. Specifying proper

purposes protects the local union organization and its

membership as a whole from the misuse of the trusteeship

power. Title III provides that a trusteeship is "presumed valid

for a period of eighteen months . . . and shall not be subject to

attack during such period except upon clear and convincing

proof that the trusteeship was not established or maintained

lla

in good faith for a purpose allowable under section 302." 73

Stat. 519 § 304(c), 29 U.S.C. § 464(c). The provision also

states: "any member or subordinate body of a labor

organization affected by a violation of this title may bring a

civil action in any district court . . . for such relief (including

injunctions) as may be appropriate." 73 Stat. 519 § 304(a),

29 U.S.C. § 464(a). It is this provision that provides the

proverbial "rub" here, as we must determine if the individual

relief that Ross is seeking is "appropriate" under Title II."

Our inquiry is therefore circumscribed by our

interpretation of this statute.

In any case turning on statutory interpretation,

our goal is to ascertain the intent of Congress.

To accomplish this goal, we begin by looking

at the statute's language. If the language is

plain, we need look no further. If the statutory

language is ambiguous or unclear, we may

look behind the language to the legislative

history for guidance.

Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 233

(3d Cir. 1998). The intricate legislative history of the

LMRDA has caused the Supreme Court to note that:

Archibald Cox, who actively participated in shaping much of

the LMRDA, has remarked:

'The legislation contains more than its share of

problems for judicial interpretation because

much of the bill was written on the floor of the

Senate or House of Representatives and

because many sections contain calculated

ambiguities or political compromises essential

to secure a majority. Consequently, in

12a

resolving them the courts would be well

advised to seek out the underlying rationale

without placing great emphasis upon close

construction of the words.'

Wirtz v. Glass Bottle Blowers Asso., 389 U.S. 463, 468

n.6, 88 S. Ct. 643, 19 L. Ed. 2d 705 (1968) (citing Cox,

Internal Affairs of Labor Unions Under the Labor Reform

Act of 1959, 58 Mich. L. Rev. 819, 852 (1960)). Thus the

practice of interpreting ambiguous statutory language in light

of its legislative history is of particular value in the context of

the LMRDA. Although we do not consider the word

"appropriate" an ambiguous term in and of itself, to the

extent that the text of the LMRDA does not adequately define

the term in context, and thereby definitively establish what

remedies are “appropriate” under Title III, we are compelled

to consult the statute's legislative history. See West Virginia

Univ. Hospital, Inc. v. Casey, 499 U.S. 83, 98, 113 L. Ed. 2d

68, 111 S. Ct. 1138 (1991) (it is appropriate to resort to

legislative history to determine the meaning of ambiguous

legislation). The legislative history of Title III] confirms our

analysis.

C. The Legislative History of Title III

In 1957, the Select Committee on Improper Activities in

the Labor Management Field of the United States Senate,

more commonly known as the "McClellan Committee,"

began investigating and gathering findings on the internal

affairs of labor unions. Note, Landrum-Griffin and the

Trusteeship Imbroglio, 7] Yale LJ. 1460, 1473 (1962)

(hereinafter "Note, Trusteeship Imbroglio"). The McClellan

Committee's findings "exposed the details of the sad state of

democracy in large sections of the labor movement and

provided numerous examples of the abuses of the trusteeship

power." Sheet Metal Workers’ Int'l Ass'n v. Lynn, 488 U.S.

347, 357 n. 8, 102 L. Ed. 2d 700, 109 S. Ct. 639 (1998)

(quoting Note, Trusteeship Imbroglio at 1473).

13a

The Labor-Management Reporting and

Disclosure Act of 1959 was the product of

congressional concern with widespread abuses

of power by union leadership. The relevant

provisions of the Act had a history tracing

back more than two decades in the evolution

of the statutes relating to labor unions.

Tensions between union leaders and the rank-

and-file members and allegations of union

wrongdoing led to extended congressional

inquiry. As_ originally introduced, the

legislation focused on disclosure requirements

and the regulation of union trusteeships and

elections. However, various amendments were

adopted, all aimed at enlarged protection for

members of unions paralleling certain rights

guaranteed by the Federal Constitution; not

surprisingly, these amendments--ultimately

enacted as Title I of the Act, 29 U.S.C. § §

411-415--were introduced under the title of

"Bill of Rights of Members of Labor

Organizations." The amendments placed

emphasis on the rights of union members to

freedom of expression without fear of

sanctions by the union, which in many

instances could mean loss of union

membership and in turn loss of livelihood.

Such protection was necessary to further the

Act's primary objective of ensuring that

unions would be democratically governed and

responsive to the will of their memberships.

Id. at 352 (citing 105 Cong. Rec. 6471-6472, 6476,

15530 (1959)).

Title Ill of the LMRDA, the trusteeship title, first

emerged as Title II'* of the Kennedy-Ives Bill passed by the

Senate in June of 1958. Lynn, 488 U.S. at 357 n.8. It

l4a

appeared again in January of 1959 in the Kennedy-Ervin Bill.

Id.; Note, Trusteeship Imbroglio at 1475. The Kennedy-Ervin

Bill focused on disclosure and reporting requirements,

trusteeships and elections. U.S. Code Cong. & Admin. News

at 2318-72; Lynn, 488 U.S. at 352. The accompanying

Committee Report to the Kennedy-Ervin Bill reflects the

overarching concern of guaranteeing internal union

democracy while minimizing governmental interference with

the internal affairs of unions. See, e.g., 1959 U.S.C.C.A.N. at

2322-23; Jerry E. Linde, Title II] of the Labor or

Management Relations and Disclosure Act: For Greater

Judicial Protection of Union Democracy and Local

Automony, 9 J. Corp. L. 271, 276-80 (1984); Marcia

Greenblatt, Union Officials and the Labor Bill of Rights, 57

Fordham L. Rev. 601, 601-02 (1989). This report

acknowledged that trusteeships had been effective in the past

"to insure order within [labor] organizations." U.S. Code

Cong. & Admin. News at 2333. However, it also

acknowledged the McClellan Committee's findings regarding

the misuse of the trusteeship authority. The Committee

Report noted:

in some instances trusteeships have been used

as a means of consolidating the power of

corrupt union officers, plundering and

dissipating the resources of local unions, and

preventing the growth of competing political

elements within the organization.

Lynn, 488 U.S. at 357 n. 8 (quoting 1959 U.S.C.C.A.N. at

2333). The Committee Report also explained why then

current law was ineffective:

A trusteeship will ordinarily be set aside

unless the local is given a fair hearing

including notice of the charges and an

1Sa

opportunity to defend. But if the forms of fair

procedure are observed there appears to be

little the courts can do and there are very few

cases staying or upsetting trusteeships upon

substantive grounds.

Men have frequently been subjected to fines

as large as $ 1,000 for bringing suit against a

union; others have been expelled from the

membership.

The Committee on Labor and Public Welfare

therefore concurs in the select committee's

recommendation that there should be a

‘limitation on the right of internationals to

place local unions in trusteeship.'

U.S. Code Cong. & Admin. News at 2333.

The Kennedy-Ervin Bill underwent seven months of

rewriting and debate involving several amendments. Note,

Trusteeship Imbroglio, at 1475. A major alteration was the

addition of a “Bill of Rights of Members of Labor

Organizations." Id. The Bill of Rights "was adopted as an

amendment on the Senate floor by ‘legislators who feared that

the [original] bill did not go far enough because it did not

provide general protection to union members who spoke out

against union leadership.' " Lynn, 488 U.S. at 352 (quoting

Steelworkers v. Sadlowski, 457 U.S. 102, 72 L. Ed. 2d 707,

102 S. Ct. 2339 (1982)). Those legislators believed this Bill

of Rights was needed to further protect the rank-and-file

members and reinforce the other provisions of the LMRDA,

including the trusteeship provision.

—

In these debates, Senator McClellan stated:

I do not believe that racketeering, corruption,

abuse of power and other improper practices

on the part of some labor organizations can be,

or will ever be, prevented until and unless the

Congress of the United States has the wisdom

and the courage to enact laws prescribing

minimum standards of democratic process and

conduct for the administration of internal

union affairs. I mean by that, . . . that the

Congress should prescribe and define by law

what the rights of union members are, place in

them by democratic process the power to

secure those rights and protect them in their

efforts to do so from reprisals of any kind

from their would-be exploiters, manipulators,

and bosses. Without such protection, other

provisions of law may be of little benefit and

meaningless. Without such protection in the

exercise of his legitimate rights the records of

our committee's investigations show over and

over again that a rank-and-file member dare

not risk any opposition to a corrupt or

autocratic leadership. If he does so, he may be

beaten, his family threatened, his property

destroyed or damaged, and he may be forced

out of his job--all of these can happen and

have happened.

Having these things in mind, . . . I introduced S. 1137 to

provide a bill of rights for working people--for union

members.

105 Cong. Rec. 6471-72 (emphasis added).

17a

The Bill of Rights was therefore "designed to guarantee

every member equal voting rights, rights of free speech and

assembly, and a right to sue." Lynn, 488 U.S. at 352 (quoting

Steelworkers v. Sadlowski, 457 U.S. 102, 72 L. Ed. 2d 707,

102 S. Ct. 2339 (1982)).

Between January and September of 1959, when the

LMRDA was finally enacted, most of the debate concerned

the new additions and amendments, "while the trusteeship

title glided quietly through the labyrinthine process from bill

to bill with little change and less discussion." See Lynn, 488

U.S. at 357 n.8 (quoting Note, Trusteeship Imbroglio at

1475). Neither the discussions on the House nor Senate floors

focused on the relationship between Title I and Title III. Id.

Senator Dodd, however, did propose an amendment to Title

III which sparked some debate. Specifically, Dodd wanted

the trusteeship provisions to go even further in order to

prevent the manipulation of the trusteeship power and the

resulting harm that had been so well documented by the

McClellan Committee. Note, Trusteeship Imbroglio at 1475-

76. Dodd's amendment created a presumption that

trusteeships in place longer than thirty days were invalid

unless the international union, at a hearing before the

Secretary of Labor, could present clear and convincing proof

of a proper purpose. Id. Senator Dodd explained the rationale

for his proposed amendment as follows:

The [Kennedy-Ervin] bill now provides a

procedure under which an individual union

member may appeal. The point is that the full

burden of proof is placed upon such union

member, who thus would have to fight the

international or the national union; and in that

fight the limited, sparse, or -- most often --

nonexistent power of the individual union

member would be pitted against the

tremendous prestige and power of the national

18a

or the international union. . . . the philosophy

behind my amendment- is an old Anglo-

American philosophy . . . that the burden of

proof for so serious a matter as destroying a

local union, or local union autonomy -- and

that is what a trusteeship usually does --

should rest upon the national union seeking to

impose the trusteeship. ”

105 Cong. Rec. at 6675.

Dodd then focused on the importance of protecting the

local membership given organized crime's entanglement with

certain elements of the labor movement as unearthed during

the congressional inquiry. He explained:

In the past, as we know from the revelations

of the McClellan committee, and as we know

from litigation, the imposition of trusteeships

was one of the greatest abuses of the

Teamsters Union. My recollection is that more

than 120 trusteeships were imposed by that

union some of them for more than 20 years.

Think of it. For more than 20 years, the local

members, the wage earners, were without any

say at all with respect to their local unions.

eee

All I seek by the amendment is to give the

members of a local union an opportunity to

say to someone, a judge, or other competent

authority, ‘This trusteeship should not be

imposed on us."

Id. (emphasis added).

19a

Senator Ervin opposed Dodd's amendment. Ervin argued

"the bill as now drawn furnishes adequate protection for the

rank and file of members of unions which are placed in

trusteeship."'? Id. at 6677. Additionally, Senator Morse

argued:

We should look at the trustee section of the

bill as it comes to us in the light of the other

sections of the bill, and note what the

committee has done by way of setting up

democratic procedures to protect the rank and

file of the local unions. As we provide

democratic guarantees in the bill, I believe we

should keep at a minimum any interference

with the operation of the internal affairs of the

union.=I

_ Lynn, 488 U.S. at 357 n. 8 (quoting 105 Cong. Rec.

6678). Dodd's amendment was subsequently rejected.

When the Kennedy-Ervin Bill went to the House, the

enforcement section of the trusteeship title was changed.’

The Kennedy-Ervin Bill did not grant individual union

members standing to bring suit in federal court. The

Committee Report accompanying the bill explained that

"section 206 makes clear that Federal suits under Title II are

possible only upon suit initiated by the Secretary of Labor."

U.S. Code Cong. & Admin. News 1959, p. 2363. The

enforcement section which Congress passed, and which is

still in force, allows the local union itself or an individual

union member to bring suit in federal court. See 73 Stat. 519

§,29U S.C. § 464.

The legislative history is silent on the issue of whether a

union member, as an appointed officer, may seek individual

damages. However, Congressman Ludwig Teller offered

supplementary views regarding the reasoning behind the

amendment of the enforcement section. Teller explained that

20a

Congress wanted to facilitate individual claims without any

involvement by the Secretary. U.S. Code Cong. & Admin.

News 1959, p. 2500. This allowed Congress to curtail the

inordinate power of the Secretary while saving taxpayer

dollars and eliminating any requirement that a union member

first obtain governmental permission to sue.'> Id.

This expansive discussion of legislative history does not

conclusively establish what type of relief is "appropriate" for

an individual union member who is also an appointed

official. However, it places that inquiry into its proper

context and guides our interpretation of the relevant statutory

language. In interpreting Title II] in the context of the

discussions in Congress and the findings of the McClellan

Committee, we conclude that the amendment authorizing

individual law suits was intended to underscore the concerns

surrounding trusteeships under Title III. By allowing

individual members to bring suit rather than the Secretary,

Congress intended more avenues for enforcement of the

trusteeship provision, not more types of relief.

Nothing in the legislative history of Title III suggests that

Congress contemplated an individual bringing suit for

compensatory damages arising from the loss of an appointed

union position under that title. The statutory scheme of the

LMRDA strongly suggests that the individual rights that Ross

seeks to vindicate must be redressed under Title I. As noted

above, that provision was initially referred to as the "workers' |

bill of rights" when it was introduced. Title II], which came

first, was meant to protect the subordinate labor organization,

and Title I was subsequently added specifically to address the

rights of individual union members. Accordingly, we

conclude from the legislative history that the relief that Ross

seeks is not "appropriate" under Title III. An examination of

the relevant cases confirms this conclusion.

2la

D. Applicable Case Law

We have not previously interpreted § 304, the

enforcement provision of Title III. However, Finnegan v.

Leu, 456 U.S. 431, 72 L. Ed. 2d 239, 102 S. Ct. 1867 (1982),

and its progeny guide our analysis. In Finnegan, Leu defeated

Brown in an election for president of Local 20 of the

International Brotherhood of the Teamsters. /d. at 433.

Brown had been openly supported by a group of the local's

business agents including Finnegan. Id. After Leu assumed

office, he discharged all of the business agents who had

supported Bre'wn pursuant to a provision in the local's bylaws

that purported to give the president the "authority to appoint,

. .and discharge the Union's business agents." /d. at 433. The

business agents then sued in district court contending that

their termination violated Title I of the LMRDA."* Id.

The Court began its analysis by reviewing the legislative

history of the LMRDA, and concluding that "the Act's

primary objective [was] ensuring that unions would be

democratically governed and responsive to the will of their

memberships." Id.‘The Court noted that "it is readily apparent

from the legislative history of Title I, that it was rank-and-file

union members--not union officers or employees, as such--

whom Congress sought to protect." /d. at 437. The plaintiffs

were members of the union with protected speech rights, as

well as salaried employees of the union. Accordingly, the

Court had to determine whether the rights afforded plaintiffs

as members of the union "immunized [them] from discharge

at the pleasure of the president from their positions as

appointed union employees." Id.

The Court concluded that the plaintiffs’ Title I rights had

not been violated because plaintiffs had not been precluded

from exercising any of those rights, and the LMRDA did not

protect appointed officers who "backed the wrong horse."

This was true even if it meant that those officers were "forced

to ‘choose between their rights of free expression . . . and

22a

their jobs.' " Id. (citations omitted). The Court explained its

rejection of plaintiffs’ Title I claim as follows:

For whatever limits Title I places on a union's

authority to utilize dismissal from union office

as 'part of a purposeful and deliberate attempt

. . to suppress dissent within the union,’

(citations omitted), it does not restrict the

freedom of an elected union leader to choose a

staff whose views are compatible with his

own. Indeed, neither the language nor

legislative history of the Act suggest that it

was intended to address the issue of union

patronage. To the contrary, the Act's

overriding objective was to ensure that unions

would be democratically governed, and

responsive to the will of the union

membership as expressed in open, periodic

elections.

Id. at 441.

Here, Ross also held the "dual status" of union member

and appointed union officer. Defendants argue that because

Ross was employed during the entire time the trusteeship was

in place, Finnegan precludes him from asserting a claim

"arising from the decision of the newly elected officers of

Local 57 not to retain him as a business agent after the

trusteeship ended." Defendants’ Br. at 9. Defendants are

correct that the newly elected officers of Local 57 were free

"to choose a staff whose views are compatible with [their]

own." Finnegan, 456 U.S. at 441.

However, the analysis does not end there because, unlike

in Finnegan, we are here concerned with a trusteeship that

was created pursuant to Title III. Ross argues he is entitled to

compensation because the continuation of the Trusteeship

was in bad faith and for the purpose of removing him as

23a

political opposition within Local 57 in violation of § 304 of

Title I11.'’ The Supreme Court addressed a similar argument

in the context of a trusteeship in Sheet Metal Workers’

International Ass'n v. Lynn, 488 U.S. 347, 102 L. Ed. 2d 700,

109 S. Ct. 639 (1989).

There, the trustee who had been appointed to run the local

asked Lynn, who was an elected business representative of

Local 75, to support a proposed dues increase. However,

rather than support the increase, Lynn insisted that

expenditures be reduced and he organized the opposition to

the proposal to raise union dues. /d. at 349-50. Five days

after the proposal was defeated, the trustee informed Lynn

that he was being removed from his elected position of

business agent. /d. at 350. Lynn exhausted his administrative

remedies within the union, and then filed suit under Title |

alleging that his removal constituted illegal retaliation in

violation of the statutory right of free speech set forth in §

101(a)(2) of the LMRDA. 73 Stat. 519 § 101(a)(2), 29

U.S.C. § 411(a){2).

The Court began its analysis by noting similarities

between Lynn's plight, and the plight of the plaintiffs in

Finnegan. The Court recalled that the Title I rights of the

plaintiffs in Finnegan had been chilled “albeit indirectly,

because [they] had been forced to choose between their rights

and their jobs." /d., at 354. Nevertheless, the Finnegan

plaintiffs had not recovered because the choice that they were

left with did not violate the purpose of the LMRDA.

Whether such interference with Title I rights

gives rise to a cause of action under § 102

must be judged by reference to the LMRDA's

basic objective: "to ensure that unions [are]

democratically governed, and responsive to

the will of the union membership as expressed

in open, periodic elections." In Finnegan, this

24a

goal was furthered when the newly elected

union president discharged the appointed staff

of the ousted incumbent. Indeed, the basis for

the Finnegan holding was the recognition that

the newly elected president's victory might be

rendered meaningless if a disloyal staff were

able to thwart the implementation of his

programs. While such patronage-related

“ discharges had some chilling effect on the free

speech rights of the business agents, we found

this concern outweighed by the need to

vindicate the democratic choice made by the

union electorate.

488 U.S. at 354-5 (citations omitted). However, the

Court stressed that Lynn's situation was quite different for he

was removed from an elected position, and his removal

thereby had a direct impact on the democratic governance of

the union itself.

The consequences of the removal of an

elected official are much different. To begin

with, when an elected official like Lynn is

removed from his post, the union members are

denied the representative of their choice.

Indeed, Lynn's removal deprived the

membership of his leadership, knowledge, and

advice at a critical time for the Local. His

removal, therefore, hardly was an integral part

of ensuring a union administration's

responsiveness to the mandate of the union

election.

Furthermore, the potential chilling effect

on Title I free speech rights is more

pronounced when elected officials are

discharged. Not only is the fired official likely

25a

to be chilled in the exercise of his own free

speech rights, but so are the members who

voted for him. Seeing Lynn removed from his

post just five days after he led the fight to

defeat yet another dues increase proposal,

other members of the Local may well have

concluded that one challenged the union's

hierarchy, if at all, at one's peril. This is

precisely what Congress sought to prevent

when it passed the LMRDA. "It recognized

that democracy would be assured only if union

members are free to discuss union policies and

criticize the leadership without fear of

reprisal."

Id. at 355. Accordingly, the Court held that Lynn's

allegation of retaliatory removal stated a cause of action

under Title I of the LMRDA. |

Ross was appointed and his complaint alleges only a

violation of Title I1I.'* The Court in Lynn was quite explicit

in tying Lynn's cause of action to Title 1. The Court

emphasized the importance of Title I as follows:

we find nothing in the language of the

LMRDA or its legislative history to suggest

that Congress intended Title I rights to fall by

the wayside whenever a trusteeship is

imposed. Had Congress contemplated such a

result, we would expect to find some

discussion of it in the text of the LMRDA or

its legislative history. Given Congress’ silence

on this point, a trustee's authority under Title

III ordinarily should be construed in a manner

consistent with the protections provided in

Title I.

26a

Id. at 356-57.

Title I was enacted to protect rank-and-file members of

the union and to insure union democracy by protecting the

independence of elected union officials even though the free

speech rights of the union's membership are implicated. This

is true whether or not a trusteeship is involved. Ross tries to

avail himself of the holding in Lynn by arguing that his

removal has an impact on the democratic governance of the

Local.'? He seems to be arguing that Title II] was the

mechanism by which his free speech rights (i.e., Title I) were

violated. However, the rights that may have been chilled are

nevertheless Title I rights, not Title III rights. Therefore, the

holding in Lynn does not further his position. "The potential

chilling effect on Title I free speech rights is more

pronounced when elected officials are discharged. Not only is

the fired official likely to be chilled in the exercise of his own

free speech rights, but so are the members who voted for

him." Jd. at 355. We are not persuaded by Ross' attempts to

secure compensation for a claimed violation of Title I under

Title III. His position is, in fact, in substantial tension with

Finnegan. After all, in Finnegan, the Court allowed an

appointed officer to be removed even though doing so

required employees to chose between free speech and

continued employment. The Court reasoned that choice was

necessarily concomitant to allowing elected officials to

implement the programs and leadership that a majority of the

union membership had voted for. Although there was no

issue of a trusteeship in Finnegan, it is very difficult to square

that analysis with Ross' assertion that he has a cause of action

because of the Trusteeship here.

As the Supreme Court found in the Title I setting, nothing

in the legislative history of Title III establishes that Congress

intended to protect appointed officers like Ross under the

circumstances here. Ross’ reliance upon Title III may well be

an attempt to circumvent the holding in Finnegan. But for the

existence of the Trusteeship and the fact that Ross brought

27a

this suit under Title II], Finnegan would be more precisely on

point. Ross’ claim that he was victimized by an appointed

Trustee rather than an elected officer does not alter the fact

that the rights he seeks to vindicate are Title I rights, not Title

III rights. Accordingly, we believe our analysis here must

still be guided by Finnegan, and that is confirmed by our

reading of Gesink v. Grand Lodge, International Ass'n of

Machinists and Aerospace Workers, 831 F.2d 214, 216 (10th

Cir. 1987).

In Gesink, the International appointed a trustee who

subsequently filed charges against Gesink, a business

representative for the local. /d. at 215. Gesink was thereafter

removed from his office by the president of the International,

and he was barred from holding any office for five years. Id.

Gesink sued for damages under Title I and Title III. His claim

for damages under Title III was based upon his assertion that

he was entitled to relief for deprivation of his salary and other

emoluments of his office during the Grand Lodge supervision

of the District Lodge. He argued that the supervision violated

Title Ill of the LMRDA. /d. at 216. The Court dismissed his

Title II claim stating:

In light of the legislative history of Title III of

the LMRDA and the Supreme Court's ruling

in Finnegan, this Court finds that there is no

cause of action for individual damages under §

§ 462 and 464. Any right of action pursuant

to those sections belongs to the subordinate

union, while a union member may sue to

enforce the act's provisions, such suits should

be limited to relief on behalf of the union. As

the Supreme Court concluded in the Title I

context, this Court concludes that nothing in

the legislative history of Title III indicates an

intent to protect the positions of union officers

and employees.

28a

Id., at 216. Similarly, in Pope v. Office and Professional

Employees International Union, the court stated: "Title III of

the LMRDA is designed to protect a subordinate union as a

whole, whereas Title 1 . . . is designed to protect the

individual rights of the members of a union." 74 F.3d 1492,

1504, (6th Cir. 1996).

The district court here found that Ross is not seeking

compensatory damages and reinstatement in order to protect

the local union and its membership from the actions of the

Trustee. Rather, the court concluded that Ross sought relief

to redress personal losses purportedly inflicted upon him by

the Trustee. Ross v. Hotel Employees and Restaurant

Employees Int'l Union, No. 98-1131, slip. op. at 16-17 (W.D.

Pa. Oct. 4, 1999). His efforts to now argue that his relief will

benefit the union by vindicating its members’ free speech

rights is little more than a belated attempt to import

considerations that govern Title | relief into a suit brought

only under Title III.

Despite the holding in Finnegan, Lynn, and Gesink, Ross

urges that we be guided by Higgins v. Harden, 644 F.2d 1348

(9th Cir. 1981). There, the International Association of

Machinists ("IAM") appointed Simpson and Harden to

exercise control over a local for which Higgins was an

organizer. Thereafter, Harden attempted to remove Higgins

from his position as organizer by claiming that Higgins had

been unproductive. Higgins responded by suing under § §

101-611 of the LMRDA, 29 U.S.C. § § 40/-531. He alleged

that the [AM had imposed an unlawful trusteeship in the form

of Simpson and Harden, that those trustees were without

authority to terminate him, and that his termination had

actually been in retaliation for his political support of the

directing business representative of the local who had

apparently fallen into disfavor with the International, and

been "forced out" by Harden. Id.

29a

The district court held that the International had, in fact,

established a trusteeship. That trusteeship was declared

invalid because the International had not complied with

IAM's own constitution and bylaws. Accordingly, the court

held that Harden did not have the authority to remove

Higgins, and Higgins was awarded back-pay and attorney's

fees. Id. The court of appeals affirmed that part of the district

court's opinion. However, the court of appeals merely

assumed that the requested individual relief was

“appropriate” under Title II1.

We decline to embrace Higgins for several reasons.

Although the court there assumed that an individual right of

action exists, under Title III, it did not directly address the

issue. See Gesink, 831 F.2d at 216 (finding that the Higgins

court “apparently assumes there is an individual right of

action... but . . . does not discuss the issue"). It never

analyzed the legislative history that Finnegan and Lynn

instruct is sO important to a proper inquiry. Moreover,

Higgins was decided before Finnegan and Lynn, and the

Higgins court therefore did not have the benefit of the

Supreme Court's discussion of the LMRDA contained in

those later cases.

Ross also urges reliance on McDonald v. Oliver, 525 F.2d

- 1217 (Sth Cir. 1976). In McDonald, new elections were held

after a trusteeship was established, but the International

invalidated the election results and refused to install the new

officers. Jd. at 1222-23. The newly elected officers brought

suit under Titles I and III seeking to end the trusteeship; and

win installation as officers, and back-pay. Id. The Secretary

also brought an action under Titles III and IV based on a

finding by a Labor Department official that the continuation

of the trusteeship and the failure to recognize the election

violated Titles III and IV of the LMRDA. /d. at 1224. The

district court declared that the election was valid, ordered the

immediate installation of the officers, and awarded back pay.

Id. at 1225. The Court of Appeals affirmed, reasoning that:

30a

although the primary purpose of an

individual's lawsuit is obviously to vindicate

his own rights or facilitate his own candidacy,

there can be little doubt that he renders a

substantial service to the union as an

institution and to his members individually in

protecting local democratic processes through

Titles I and III. The successful litigant dispels

the "chill" cast upon the rights of others.

Id. at 1227. The court also concluded that Title III should

be "construed in light of the various other provisions of the

LMRDA." /d. at 1229. The court recognized that the primary

purpose of the LMRDA is "not only to stop and prevent

outrageous conduct by thugs and gangsters but also to stop

lesser forms of objectionable conduct by those in positions of

trust and to protect democratic processes. within union

organizations." Id. The court concluded by finding that the

international union was thwarting union democracy in

violation to the LMRDA.

Although McDonald suggests that a successful suit under

Title III confers benefits on the entire union membership, the

holding does not advance Ross' argument as much as he

would like because McDonald was also decided before

Finnegan and Lynn. Moreover, McDonald was elected and

Ross was appointed. The decisions in Finnegan and Lynn

readily establish the importance of that distinction and

undermine McDonald as support for Ross' action under Title

Il.

Similarly, we find that Ross’ reliance upon Pruitt v.

United Brotherhood of Carpenters and Joiners of America,

659 F. Supp. 1511 (N.D. Ga. 1987), vacated on other gr'ds,

893 F.2d 1216 (11th Cir. 1990), is misplaced because Pruitt

too is distinguishable from the instant case. There, the court

was not asked to find a private cause of action for damages

under § 304 of Title III. Rather, Pruitt sued under both Title I

31a

and Title II] alleging that an appointed trustee had prevented

him from assuming an elected position in retaliation for the

exercise of free speech. /d. at 1514. The court discussed the

statutory presumption of validity that attaches to trusteeships

under § 304 of Title III in inquiring into whether the

trusteeship in question had been imposed for a proper

purpose. /d. at 1517, 1520. The issue addressed by the court

was whether the "plaintiff's Title III claims fail as a matter of

law under the clear and convincing evidence standard [of §

304}." Id. at 1519. The court merely ruled that "a triable issue

may exist as to whether the trusteeship was maintained to

block plaintiff from assuming his elected position" /d. at

1520. More importantly, Pruitt, unlike Ross, stated a Title I

claim based upon his assertion that the trusteeship had

precluded him from assuming an elected position. /d. at

1522. ;

Finally, Ross relies upon the decision of the Court of

Appeals for the Sixth Circuit in Pope v. Office and

Professional Employees International Union, 74 F.3d 1492

(6th Cir. 1996). Pope was an appointed busjness

representative of Local 268 of the Office and Professional

Employees International Union (OPEIU). Soon after his

appointment, he alleged wrongdoing and mismanagement on

the part of officers of Local 268. /d. at 1496. Support for

Pope's outspoken criticism of the Local's leadership soon

flourished, and he became a candidate for president of the

Local despite opposition of the OPEIU, and local board. /d.

at 1497. After one very chaotic meeting of the Local, the

OPEIU granted the local board's request, and imposed a

trusteeship to control Local 268 pending a hearing to

determine its propriety. Jd. at 1498. Thereafter, the union

held a hearing and determined that the trusteeship was

appropriate despite Pope's protestations to the contrary.

Shortly thereafter, Pope was fired, and his union membership

was withdrawn without notice or opportunity to be heard. /d.

at 1499. Pope was therefore ineligible to run for president of

32a

the Local. Elections were held, a new slate of officers was

elected, and the trusteeship was thereafter terminated. /d. at

1500. However, before the trusteeship was terminated, Pope

sued in district court.

Pope argued that the trusteeship violated Title III of the

LMRDA, and that denying him eligibility to run for union

office violated Title I of the LMRDA. Id. He sought

monetary, declaratory and injunctive relief. However, after

the elections took place the declaratory and injunctive claims

were dismissed as moot. Id. The suit proceeded to trial, and

the jury awarded Pope compensatory and punitive damages

against the OPEIU. Id.

OPEIU appealed claiming that the LMRDA is designed

to protect rank and file union members and not officers and

employees and that Pope therefore lacked standing as an

appointed employee. /d. at 150]. In resolving those issues,

the Court reconciled the jury's verdict with the holdings in

Finnegan, Lynn, and Gesink. The court also reconciled the

jury's verdict with the holding in Cehaich v. International,

UAW, 710 F.2d 234 (6th Cir. 1983), a case involving similar —

facts decided subsequent to Finnegan. Cehaich and Pope had

both been appointed employees of local unions, but Cehaich's

"status as a member of the union did not change after he was

terminated from his appointed position. He was not fined,

suspended, expelled or disciplined." Pope, 74 F.3d at 1502.

The court reasoned as follows:

In Finnegan, the appointed officials of an

ousted board were not protected by the

LMRDA because union members elected a

new board. In Lynn, the elected officials were.

protected because they had been elected by the

union members. The purpose of ensuring

democracy is furthered by allowing Pope a

cause of action under the LMRDA. Pope was

33a

appointed a business representative by an

elected local executive board. That board was

not ousted as in Finnegan.

Moreover, unlike Cehaich, Pope was expelled

from union membership immediately after his

termination from his position as business

representative. Thus, Pope's case is clearly

distinguishable from Cehaich. Pope is entitled

to protection under the LMRDA because he

was disciplined in a manner which affected his

right to fully enjoy the rights and privileges of

union membership.

Id. at 1503.

However, mosi significantly for our purposes, the court

held that Pope's suit was not moot merely because the

trusteeship had since been terminated. The court reached that

result by reading Title I and Title III] together and concluding

that "the question of the propriety of the trusteeship is not

moot because it has direct bearing on whether Pope's Title I

rights were violated." Id. The violation of Title III supported

Pope's claim for damages because "[his was] an action at law

to recover damages for the suppression of Title I rights as a

result of the imposition of a trusteeship." /d. at 1505.

However, Ross is not alleging a violation of Title I. He

was not expelled from membership, and he was reinstated to

his appointed position within 24 hours of being removed

from it.”° In reviewing the grant of summary judgment for the

defendants here, we must assume that they denied Ross'

eligibility to run for election solely to keep him from running

in the election. Although a union member's right to seek

elective office is protected under Title I, /d. at 1503; Gesink,

831 F.2d at 217, Ross seeks relief solely under § 304 of Title

IlI. Based on the text and legislative history of Title III and

the Supreme Court's decisions in Finnegan and Lynn, we

34a

hold that Title III does not allow a private cause of action for

individual damages flowing from the termination of an

appointed employee. Relief under § 304 must be sought on

behalf of the local union organization and the entire

membership must reap the benefits.

Accordingly, we conclude that the district court properly

determined that there was no genuine issue of material fact

and that, on the record before it, Ross’ Title III claim failed as

a matter of law. The relief Ross seeks is simply not

“appropriate” within the meaning of Title III.

IV. Conclusion

For the reasons set forth herein, we conclude that the

district court did not err in granting summary judgment to the

defendants under Title III of the LMRDA and that order will

be affirmed.

Footnotes

' The procedural history of this appeal is rather unique as

the district court entered summary judgment after declaring a

mistrial.

? At all times relevant to the issues before us, Ross held

an appointed office.

> Inasmuch as we are reviewing a grant of summary

judgment against Ross, we must assume that the allegations

of his amended complaint are true, and draw all inferences

which reasonably arise from those assertions in his favor as

the nonmoving party. Woessner v. Air Liquide Inc., 242 F.3d

469, 471 (3d Cir. 2001).

35a

* Nancy Davis is also referred to as-Nancy Ross in the

record, as she is George Ross’ former wife.

* Carol Carlson was appointed as co-trustee about four

weeks later. ;

° Ross argues that Nassan "cut a deal" with HEREIU and

the Trustees to dissolve the Trusteeship, and hold elections in

exchange for Nassan withdrawing from the lawsuit and his

support of Ross.

’ In support of this argument, he points out that he had

been elected to the Executive Board of Local 57 on three

prior occasions even though his dues were then delinquent.

Inasmuch as we are reviewing a grant of summary judgment,

we must accept this argument as true. —

* The district court also discussed Ross’ repeated attempts

to invalidate the August 1998 election despite its previous

ruling that Ross was barred from seeking to effect a change

in the election. The district court reaffirmed its previous

ruling that it lacked jurisdiction to entertain this part of Ross’

claim. Ross v. Hotel Employees and Restaurant Employees

Int'l Union, No. 98-1131 slip. op. at 7-8 (W.D. Pa. Jan. 12,

2000). The court reasoned that Title IV of the LMRDA vests

the Secretary of Labor with exclusive jurisdiction over an

individual union member's post-election suits regardless of

when members first seek relief regarding elections. See id. at

8-10 (citing Local No. 82, Furniture & Piano Moving,

Furniture Store Drivers, Helpers, Warehousemen & Packers

v. Crowley, 467 U.S. 526, 541, 544, 81 L. Ed. 2d 457, 104 S.

Ct. 2557 (1984)). Post-election relief to invalidate elections

or seek new elections must first be pursued with the Secretary

of Labor. Id. at 11 n. 2. Therefore, Ross "[was] barred from

pursuing-claims requiring an invalidation of the August 1998

36a

election." Id. at 10-11.

* Ross does not now challenge the district court's denial

of his assertion that the law of the case precluded entry of

summary judgment, or the district court's refusal to overturn

the union's election.

'° Title II] of the LMRDA provides in relevant part:

§ 302 Purposes for which a trusteeship

may be established

Trusteeships shall be established and

administered by a labor organization over a

subordinate body only in accordance with the

constitution and bylaws of the organization

which has assumed trusteeship over the

subordinate body and for the purpose of

correcting corruption or financial malpractice,

assuring the performance of collective

bargaining agreements or other duties of

bargaining representative, restoring

democratic procedures, or otherwise carrying

out the legitimate objects of such labor

organization.

§ 303 Unlawful acts relating to labor

organization under trusteeship

(a) During any period when a subordinate

body of a labor organization is in trusteeship,

it shall be unlawful (1) to count the vote of

delegates from such body in any convention or

election of officers of the labor organization

unless the delegates have been chosen by

37a

secret ballot in an election in which all the

members in good standing of such subordinate

body were eligible to participate . . .

***

§ 304 Enforcement

(a) Upon the written complaint of any member

or subordinate body of a labor organization

alleging that such organization has violated

the provisions of this title (except section 301)

the Secretary shall investigate the complaint

and if the Secretary finds probable cause to

believe that such violation has occurred and

has not been remedied he shall, without

disclosing the identity of the complainant,

bring a civil action in any district court of the

United States having jurisdiction of the labor

organization for such relief (including

injunctions) as may be appropriate. Any

member or subordinate body of a labor

organization affected by any violation of this

title (except section 301) may bring a civil

action in any district court of the United States

having jurisdiction of the labor organization

for such relief (including injunctions) as may

be appropriate.

** *

(c) In any proceeding pursuant to this section

a trusteeship established by a _ labor

organization in conformity with the procedural

requirements of its constitution and bylaws

and authorized or ratified after a fair hearing .

. Shall be presumed valid for a period of

38a

eighteen months from the date of its

establishment and shall not be subject to

attack during such period except upon clear

and convincing proof that the trusteeship was

not established or maintained in good faith for

a purpose allowable under section 302. After

the expiration of eighteen months the

trusteeship shall be presumed invalid in any

such proceeding and its discontinuance shall

be decreed unless the labor organization shall

show by clear and convincing proof that the

continuation of the trusteeship is necessary for

a purpose allowable under section 302. In the

latter event the court may dismiss the

complaint or retain jurisdiction of the cause on

such conditions and for such period as it

deems appropriate.

73 Stat. 519 § § 301, 302, 303, 304, 29U S.C. § § 46],

462, 463, 464.

'' At oral argument, and vaguely in his brief, Ross argued

that we should read the enforcement section of Title III in

light of § 401 which is the introduction section of the

LMRDA and discusses the purposes and policy of the

LMRDA. § 401(b) discusses protecting the rights of

employees and the public in general:

The Congress further finds, from recent

investigations in the labor and management

fields, that there have been a number of

instances of breach of trust, corruption,

disregard of the rights of individual

employees, and other failures to observe high

standards of responsibility and ethical conduct

39a

which require further and supplementary

- legislation that will afford necessary

protection of the rights and interests of

employees and the public generally as they

relate to the activities of labor organizations,

employers, labor relations consultants, and

their officers and representatives.

73 Stat. 519 § 2(b), 29 U.S.C. § 401](b). Ross contends

that this section's use of the word "employees" indicates that

protecting employees of the union was the underlying

purpose of the LMRDA. For reasons we discuss below, we

disagree.

'2 A review of the Senate Report no. 187, Apri! 14, 1959

[To accompany S. 1555] in the Section-By-Section Analysis

reveals that Title I was originally the reporting provision and

Title II was the trusteeship provision. U.S. Code Cong. &

Admin. News at 2352 - 2362. Later, Title 1 became the Bill

of Rights provision, Title II became the reporting provision

and Title III became the trusteeship provision. 73 Stat. 519 §

| et seq., 29 U.S.C. § 40] et seq.

'? Part of Ervin's discussion specifically explained that

the bill "takes care of the main reason why trusteeships are

sometimes arbitrarily imposed, namely, to enable

international officers to control the selection of delegates to

international conventions. The bill contains a specific

provision to the effect that the local union in trusteeship may

be represented at an international convention only by

delegates elected by a secret ballot of the members of the

local." 105 Cong. Rec. 6677.

'* The enforcement provision currently in force is § 304

of the LMRDA, 29 U.S.C. § 464.

40a

'S Congressman Teller stated:

HR 8342 is a substantial improvement over S.

1555 (the Kennedy-Ervin bill), the Senate-

passed labor management reform bill which

our committee used as a basis for its

deliberations . . . . Reducing the excessive

powers of the Secretary of Labor, as we did in

our committee bill H.R. 8342, is in line with

our traditions which favor the diffusion of

power, will save the taxpayer many millions

of dollars annually without impairing the basic

objectives of the proposed law, and will

permit individuals to prosecute their own

cases in the courts without having to obtain

permission of a Government agent or official

to do so.

U.S. Code Cong. & Admin. News 1959, p. 2500.

'° The suit was filed under LMRDA § § 101(a)(1) and

(2) which "guarantee equal voting rights, and rights of speech

and assembly, to 'every member of a labor organization." /d.

at 436 (quoting 29 U.S.C. § 411 (1998)).

'’ There is some confusion about Ross’ position regarding

whether the Trusteeship was appropriately created and/or

maintained. Defendants quote Ross as having conceded that

the Trusteeship “was appropriate and was imposed for a

proper purpose." See Defendants’ Br. at 2. However, we do

not interpret Ross’ testimony as a concession. Rather, he was

asked if he was aware of the serious charges facing the

officers of the union and whether such serious charges justify

establishing a Trusteeship. He responded, "well, according to

the International, that's the way they feel. But, I think we

4la

should have been spoke [sic] to first. . . . I do believe that is a

vaiid reason for an International to come in and take over."

App. at 250. Ross did not necessarily concede, however, that

the actual motivation for taking over was the justification

asserted by the International. Moreover, even if he may have

conceded the Trusteeship was established for a legitimate

purpose, he clearly insists that it was maintained for an

improper purpose, and that he has a cause of action under

Title III as a result.

'8 Ross’ brief states:

As a result of the improper use of a

trusteeship, Ross suffered direct or proximate

damages. But for the imposition of the

trusteeship, Ross still would be employed.

Since the trusteeship was intended for an

improper purpose and maintained in bad faith,

the Defendants violated the LMRDA. Ross, as

a member of Local 57, was "affected" by the

violation of the LMRDA. The damages

requested were "appropriate" to make him

whole.

Ross’ Brief at 23 (emphasis added).

'? Ross’ brief states:

The actions of the International Union will

have also a chilling affect on all members of

Local 57. If the International Union succeeds

in destroying Ross and leaving him with no

recourse, then other members will refrain from

opposing the International Union. On the other

hand, if the International Union is required to

42a

defend Ross' action and to compensate him for

its misuse of the trusteeship, then the

International Union will think twice before

using a trusteeship as a means to harm one of

its members, In this respect, Ross' actions

benefit all members and inure to the benefit of

the 'subordinate body of a labor organization'

in addition to himself.

Ross' brief at 23 (emphasis added).

*? We do not suggest that a union member must be

stripped of his/her union membership to state a cause of

action under Title I or that prompt reappointment will always

insulate a defendant from claims of retaliation. However, we

do note that Ross does not argue that his termination as an

appointed officer was a scheme to suppress his freedom of

speech and assembly as a union member under Title I.

43a

CIVIL ACTION NO. 98-1131

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

GEORGE ROSS,

Plaintiff

vs

HOTEL EMPLOYEES AND RESTAURANT

EMPLOYEES INTERNATIONAL UNION,

ROBERT BAKER, CO-TRUSTEE, and

CAROL CARLSON, CO-TRUSTEE,

Defendant -

October 4, 1999, Decided

SUBSEQUENT HISTORY:

subsequent app at Ross v. Hotel Emples. & Rest. Emples. Int'l

Union, 2001 U.S. App. LEXIS 20652 (3rd Cir., Sept. 17,

2001)

DISPOSITION:

Defendants' motion in limine was denied.

COUNSEL:

For GEORGE ANDREW ROSS, plaintiff: Thomas M.

Castello, Plunkett & Cooney, Pittsburgh, PA.

For EDWARD NASSAN, DARREL BROWN, consolidated

plaintiffs: Thomas M. Castello, Plunkett & Cooney,

Pittsburgh, PA.

For HOTEL EMPLOYEES AND RESTAURANT

EMPLOYEES INTERNATIONAL UNION, defendant:

Robert A. Eberle, Jubelirer, Pass & Intrieri, Pittsburgh, PA.

For HOTEL EMPLOYEES AND RESTAURANT

EMPLOYEES INTERNATIONAL UNION, defendant:

Michelle Heyer, Gold, Rotatori, Schwartz & Gibbons Co.,

Cleveland, OH.

For HOTEL EMPLOYEES AND RESTAURANT

EMPLOYEES INTERNATIONAL UNION, defendant:

Susan L. Gragel, Rotatori, Gragel & Stoper, Cleveland, OH.

For ROBERT BAKER, CO-TRUSTEE, CAROL

CARLSON, CO-TRUSTEE, defendants: Joseph J. Pass,

Robert A. Eberle, Jubelirer, Pass & Intrieri, Pittsburgh, PA.

For LOCAL 57 OF THE HOTEL EMPLOYEES AND

RESTAURANT EMPLOYEES INTERNATIONAL

UNION, consolidated defendant: Terry K. Leckman, Lipsitz,

Nassau, Schwartz & Leckman, Pittsburgh, PA.

JUDGES:

FRANCIS X. CAIAZZA, U.S. Magistrate Judge.

OPINION BY:

FRANCIS X. CAIAZZA

OPINION:

Before the court for resolution is the Defendants’ Motion

in Limite. fa their motion the Defendants request the court to

enter an order which bars the Plaintiff "from offering any

evidence or argument regarding his claim that he was

improperly disqualified as a candidate for election to union

office in August, 1998." See Defs.' Mot. in Limine at |.

Before reaching the merits of the Defendants' motion some

comment on the history of this case is required.

The Plaintiff George Ross (Ross) along with Edward

Nassan (Nassan) and Darrel Brown (Brown), commenced an

45a

action against the Defendants in which they requested the

court to "dissolve [a] Trusteeship created January 6, 1998,

reinstate the Constitution and By-laws of Local 57, appoint |

Edward Nassan as temporary President pending elections,

order the immediate elections of officers and assess counsel

fees and costs against the Defendants." See Compl.

Wherefore Clause.' The action was filed in this court at 98-

629 on April 6, 1998. Next, Ross filed a Motion to Amend

Complaint on January 19, 1999. The court directed the

Defendants to respond to the Plaintiff's motion by February

1, 1999 in an order dated January 20, 1999. The Defendants

failed to respond to the Plaintiff's motion and by order dated

February 5, 1999 the Plaintiff was granted the right to file an

Amended Complaint. In his Amended Complaint the Plaintiff

requests that the court void the suspension of the Local 57

By-Laws and Constitution as well as his employment

termination as a business agent. He also requests that the

court void the following action: (1) the imposition of the new

eligibility requirements for elective office and (2) the July,

1998 election. Finally, he requests an order which directs

Local 57 to schedule new elections in accordance with its

1994 By-Laws and Constitution. See Am. Compl., Wherefore

Clause.

Next, Ross filed an action in the Court of Common Pleas

of Allegheny County, Pennsylvania at No. GD98-10468 on

June 26, 1998. That action was removed to this court on June

26, 1998 and is filed at 98-1131. In the latter action the

Plaintiff requests that the court declare him eligible to be

nominated for general office and that he "be included as an

eligible candidate for any and all offices to be chosen by the

election of July, 1998." See Compl.. Wherefore Clause.

Parenthetically, by order dated July 7, 1999 both actions were

consolidated pursuant to Federal Rule of Civil Procedure

42(a), with all future filings to be docketed at the Civil

Action Number 98-1131.

46a

The resolution of the Defendants' Motion in Limine

requires an examination of the provisions of 29 U.S.C. § 483

as well as the relationship between Title I, Title III and Title

IV of the Labor-Management Reporting and Disclosure Act

of 1959 (LMRDA), 29 U.S.C. § 401, et seq.

Title 29 U.S.C. § 483 provides that "existing rights and

remedies to enforce the constitution and bylaws of a labor

organization with respect to elections prior to the conduct

thereof shall not be effected by the provisions of this

subchapter." (emphasis provided). Title I of the LMRDA is

the union members ‘Bill of Rights.’ Its terms provide union

members with the right to vote, to participate in union

decisions, to meet freely and to be protected against improper

disciplinary action. 29 U.S.C. § 411. Title III provides union

members with the right to commence a civil action if any

labor organization violates any "provisions of this

subchapter." 29 U.S.C. § 464. That section is pertinent to this

action because it serves as the jurisdictional basis of the

action filed at Civil Action 98-629. See Compl. P 8. In this

lawsuit the Plaintiff has alleged that a trusteeship has been

improperly established. See 29 U.S.C. § § 462 and 464(c).

Title IV regulates elections for union offices. 29 U.S.C. §

482. -

The law is clear that Title IV election rights are not

enforceable through a post-election private suit. See Calhoon

v. Harvey, 379 U.S. 134, 13 L. Ed. 2d 190, 85 S. Ct. 292

(1964). In that regard, an action which raises election

challenges must be commenced by the Secretary of Labor.

See 29 U.S.C. § 482. The court must determine, then,

whether this consolidated action is basically a post-election

suit which seeks judicial relief relative to the completed

election or a pre-election action.

The sequence of the election process is this. On or about

June 15, 1998, the General President issued instructions for

the election of officers to commence with nominations on

47a

July 1, 1998 followed by elections on July 10, 1998. The

ballots were counted on August 10, 1998.

Here, the original Complaint in the action at 98-629 was

filed on April 6, 1998 and it-requested no particular relief

relative to any pending election but instead sought relief

which related to the dissolution of the trusteeship.’ In this

action the Plaintiff also sought injunctive relief which again

related to the creation of the trusteeship. That motion was

denied on April 9, 1998. Subsequent to the election, the

Plaintiff was granted the right to file an Amended Complaint

by order dated February 5, 1999. In the Amended Complaint

the Plaintiff sought very specific relief relative to a

completed election. :

The action at 98-1131 was filed in state court on June 26,

1998; it was removed to this court on June 29, 1998. It sought

specific relief relative to an uncompleted election. Apparently

because of the ensuing election the Plaintiff filed a Petition

For Temporary Restraining Order on June 29, 1998. In the

petition he alleged that he had "reason to believe that he

would be declared ineligible to be a candidate for any local

elected office ..." (Pet. P 6), that the "defendants refuse to

confirm or deny Plaintiff's eligibility ..." (Pet. P 4), that

"without this court's intervention [the] Plaintiff will be

irreparably harmed ..." (Pet. § 14) and that "without this

court's intervention [the] Plaintiff has no adequate remedy at

law ..." (Pet. P 17). By oral order the court denied the

Plaintiff's request for a temporary restraining order on June

29, 1998. The Plaintiff was declared ineligible and the

election was held in the sequence described supra.

A review of those dates reveals that, in somewhat of a

hybrid fashion, the Plaintiff filed both a post-election and

preelection suit in which he sought judicial relief relative to

an election. Nevertheless, even if the court finds that this is

essentially a post-election action the Plaintiff may be

permitted to present evidence which relates to the election

48a

process in an action in which he seeks only monetary relief

because the United States Court of Appeals for the Third

Circuit has stated that "the rather broad language of the

Calhoon decision could not be considered to have precluded

Title I suits related to election matters." See Amalgamated

Clothing Workers of America Rank and File Committee v.

Amalgamated Clothing Workers of America, Philadelphia,

Joint Board, 473 F.2d 1303, 1306 (3d Cir. 1973) (citing

Union Elections and the LMRDA, 8/ Yale L.J. 407, 546-547

(1972)). The court went on to say that Calhoon did not

prohibit "Title I suits in the election area [and that actions

commenced] before an election which were intrinsically

bound up with the election process have been permitted." /d.

(citing Semancik v. United Mine Workers of America, District

No. 5, 466 F.2d 144 (C.A.3 1972); DePew v. Edmiston, 386

F.2d 710 (C.A. 1967); Sheridan v. United Brotherhood of

Carpenters, 191 F. Supp. 347 (D.Del. 1961). \t does not

appear, therefore, to be unreasonable to extend the court's

reasoning at it relates to Title I actions to lawsuits which are

based upon Title III of the LMRDA, such as the case filed at

98-629. Parenthetically, this court must recognize that "once

the election has been completed, the outcome cannot be

affected by [a] Title I suit. The judicial and administrative

remedy of Title IV is exclusive." Amalgamated Clothing, 473

F.3d at 1306. For the same reason, following the completion

of the election process, the outcome cannot be affected by a

Title II] case because of the exclusivity provisions of Title

IV. Is that same conclusion applicable to cases filed pursuant

to actions filed pursuant to the provisions of 29 U.S.C. § 483

where the action was filed but not decided prior to the

election.

First, the Plaintiff's claim that he has no remedy is

without merit. Following the election he maintained the right

to seek relief pursuant to the enforcemént provisions of the

LMRDA. See 29 U.S.C. § 482.

49a

Next, the action initially filed at 98-629 was filed prior to

the election. However, it sought no specific relief relative to

the election process and it was based upon 29 U.S.C. § 464,

which makes it a Title III action. Notably, the election issues

raised in the Amended Complaint were filed post-election.

Next, the Plaintiff obviously filed the action at 98-1131,

which involved the union's constitution and by-laws, "prior to

the conduct" of the election. [It was filed in state court on

June 26, 1998 and it was removed to this court on June, 29,

1998.] Immediately foliowing the removal of the case to this

court, District Court Judge Gary Lancaster held an expedient

hearing on the request for a temporary restraining order and

proceeded to deny the request of the Plaintiff which would

have made him eligible to be nominated for a Local 57 office

in the face of a close sequence of events; viz., the motion for

a temporary restraining order was denied on June 29, 1998,

the nomination process commenced on July 1, 1998, the

election was conducted on July, 10 1998, and ballots were

counted on August 10, 1998. With this history in mind the

court must resolve this question: whether the action at 98-

1131 is a pre-election lawsuit which would provide this court

with jurisdiction to grant the relief which the Plaintiff has

requested.

First, the issues raised by the Plaintiff involves "the

constitution and by-laws of a labor organization." In that

regard, the Plaintiff claims that the trustees improperly added

a provision to the election guidelines: viz., that a perspective

candidate could not be over sixty days delinquent in the

payment of his dues at any time from May, 1997 through

April, 1998 and that Article XII, Section Seven of the

International Constitution provides that no new local by-laws

can become effective until after the installation of new

officers. It is this by-law which the Plaintiff seeks to enforce.

The provisions of 29 U.S.C. § 483 provide a union

member with the right to "enforce" the constitution and by-

50a

‘laws of a labor organization “prior to the conduct” of an

election. In the view of this court, under the legislative

scheme, if the union member is unable to enforce, prior to

the election, the by-law which he or she challenges, then the

Plaintiff must resort to the provisions of 29 U.S.C. § 482.

Here, the Plaintiff filed the action in state court at 98-1131 on

June 26, 1998 and the case was removed to this court on June

29, 1998, at which time the court denied the Plaintiff's

request for a temporary restraining order. Nominations for

the elected offices then commenced on July 1, 1998, which

effectively precluded the Plaintiff from enforcing the

contested by-law prior to the election in his action which was

filed pursuant to the provisions of 29 U.S.C. § 483. Although

the denial of the temporary restraining order did not finally

determine the merits of the lawsuit, the completed election

process effectively removed the jurisdiction of this court to

grant the relief sought by the Plaintiff: viz., to be declared

eligible to be nominated for general office and to have his

name included as an eligible candidate, in that respect, under

the facts here this court has jurisdiction only in cases which

are commenced by the Secretary of Labor. See 29 U.S.C. §

482.

The court realizes the subtle ways in which a union can

stifle the nomination process by injecting onerous conditions

late in the election process which severely limit the number

of candidates who qualify for nomination. However, by

statutory enactment [ 29 U.S.C. § 482] Congress has decided

not to allow individuals to either block or delay union

elections by privately filing Section [V lawsuits, Cf San

Diego Building Trades Council Millmen's Union, Local 2020

v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773

(1959).

The Defendants Motion in Limine will be denied in an

accompanying order. However, the Plaintiff cannot seek any

relief which would effect a change in the union election. He

can, nevertheless, introduce evidence in his Section 464

Sla

action which shows that he was improperly disqualified as a

candidate in the July, 1998 election.

October 4, 1999

FRANCIS X. CAIAZZA

U.S. Magistrate Judge

ORDER

In accordance with the provisions of the appended

Opinion, the Defendants’ Motion in Limine is denied.

October 4, 1999

FRANCIS X. CAIAZZA

U.S. Magistrate Judge

Footnotes

' Nassan and Brown have withdrawn from this action and are

no longer parties to this lawsuit.

* For relief the Plaintiff requested that Edward Nassan be

appointed as temporary President and that the court order the

immediate election of officers.